Black v. Friedrichsen

• Decision Date: 11 March 2020
• Docket Number: Case No. 1:19-CV-307
• Parties: SANDRA BLACK, Plaintiff, v. NAOMI FRIEDRICHSEN, ERIKA HOLLIDAY (LIDDICK), HUNTERS RUN APARTMENTS AND OWNERS, and INTERSTATE REALTY MANAGEMENT CO., Defendants.
• Court: U.S. District Court — Northern District of Indiana

SANDRA BLACK, Plaintiff, v. NAOMI FRIEDRICHSEN, ERIKA HOLLIDAY (LIDDICK), HUNTERS RUN APARTMENTS AND OWNERS,and INTERSTATE REALTY MANAGEMENT CO., Defendants.

Case No. 1:19-CV-307

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA FORT WAYNE DIVISION

March 11, 2020

OPINION AND ORDER

This matter is before the Court on the motion to dismiss filed by Defendants Hunters Run Apartments, LLP, and Erika Holliday¹ on October 30, 2019. Motion to Dismiss (ECF 14); Memorandum in Support (ECF 15). Plaintiff Sandra Black filed a response in opposition to the motion on November 18, 2019. "Plaintiff's Response and Motion to Deny Defendants' Motion to Dismiss" (ECF 17).² The Defendants filed a reply brief on November 22, 2019. Reply Brief (ECF 19). Also on November 22, Black filed a document she titled "Added Clarification of Existing Statements of Claim" (ECF 20). For the reasons set forth below, the motion to dismiss (ECF 14) is DENIED. The Court also directs the U.S. Marshal to endeavor to serve Defendant NaomiFriedrichsen with a copy of the summons, a copy of Black's Complaint, and a copy of this Order within 60 days from the date of this Order. The Court directs counsel for Defendants Michaels Management-Affordable LLC, f/k/a Interstate Realty Management Company and Erika Holliday to file a notice or brief with the Court, within 14 days from the date of this Order, addressing the matter of the appearance filed by Michaels Management, as set forth in the Conclusion below.

BACKGROUND

Sandra Black filed a Complaint against the Defendants in this Court on May 20, 2019, in case number 1:19-CV-222. On May 24, 2019, the Court dismissed that case for lack of subject-matter jurisdiction. On June 12, 2019, Black filed a motion for reconsideration. The Court denied that motion, also, but determined that Black's motion for reconsideration was actually a new Complaint alleging discrimination under the Fair Housing Act, 42 U.S.C. § 3601 et seq., a cause of action she had not asserted in her first case. Accordingly, the Court entered an order on July 10, 2019, instructing the Clerk of the Court to docket the new Complaint (and Black's accompanying application to proceed in forma pauperis) as a new case. On July 12, 2019, the Court entered an order granting Black's motion to proceed ifp and directing the U.S. Marshals Service to serve summonses and copies of the Complaint on the Defendants. Court Order (ECF 3).

Black and her adult son entered into a lease agreement with Defendant Hunter's Run Apartments on November 23, 2015. Black alleges in her Complaint that the Defendants discriminated against her on the basis of her race, African-American, by falsely accusing her of numerous lease violations over the course of several years in an attempt to force her to vacate the apartment she rented from the Defendants in Marion, Indiana. Complaint (ECF 1). Black insiststhat the Defendants brought an unfounded eviction proceeding against her in state court. Id. Black asserts that the Defendants harassed her by accusing her of numerous lease violations and that white residents of Hunters Run Apartments were treated more favorably. She contends that "[b]oth I and [a] Hispanic woman and several other blacks were all targeted for wrongful removal and no longer live there. To my knowledge no whites are removed wrongfully. Good white tenants are never wrongly evicted, but good black tenants are evicted. Whites are allowed privileges that blacks are not allowed." Id., p. 2.

Sandra Black's dispute with the Defendants has been ongoing for several years and has involved proceedings in state court, the Indiana Civil Rights Commission, and now this federal court. The legal battle between the parties began in 2017 in state court when Hunter's Run Apartments "filed a Complaint for 'Possession of Real Property and Past Due Rent' in the Grant County Superior Court of Indiana, Small Claims Division, Case No. 27D03-1705-SC-000517." Id., Defendants' Memorandum in Support of Motion to Dismiss (ECF 15), pp. 1-2. The Defendants state that "Hunter's Run brought forth its Complaint alleging it was entitled to possession of the Property because Plaintiff allowed unauthorized occupants to live at the Property in violation of the Lease Agreement entered into by the Parties." Id., p. 2. Black responded to that eviction proceeding by filing "a Request for Trial by Jury, transferring the matter to the Grant County Superior Court's plenary docket and invoking the Indiana Rules of Trial Procedure." Id., p. 2. "On June 8, 2017 . . . the Grant County Superior Court held a preliminary possession hearing and on June 14, 2017, the . . . Court entered an order denying Hunter's Run's Request for a Prejudgment Order of Possession." Id. Black then filed "a Request for Emergency Order to Allow Additional Occupants to the Household[.]" Id., p. 3. "On August2, 2017, Hunter's Run filed a Joint Agreement of Parties which allowed Plaintiff and unauthorized occupants to reside at the Property until September 15, 2017, in exchange for Plaintiff agreeing to turn in keys and vacate the Property on or before September 15, 2017." Id. (citing Defendants' Exhibit F, Joint Agreement (ECF 15-6); Grant County Court Order Granting Joint Agreement (ECF 15-7)).

Meanwhile, as the Grant County eviction case played out, Black "filed a Complaint with the Indiana Civil Rights Commission ('ICRC') against Hunter's Run Apartments, alleging discrimination on the basis of race in violation of the Indiana Civil Rights law, the Indiana Fair Housing Act . . . and Title VII of the Civil Rights Act of 1968 (42 U.S.C. § 3601 et seq. [the Fair Housing Act])." Id. (citing Defendants' Exhibit I, (ECF 15-9)). Black filed her ICRC claim on May 26, 2017. Id. The Defendants note that "[o]n January 2, 2018, the ICRC issued a Notice of Finding that no probable cause existed and Plaintiff's Complaint was dismissed. . . . On March 26, 2018, the full ICRC adopted the Finding and [Black's] Complaint was dismissed with prejudice with no further right to appeal." Id., p. 4 (citing Defendants' Exhibit K, Finding of ICRC (ECF 15-11)). Following the adverse finding by the ICRC, Black turned to this Court to continue to seek relief for what she insists were racially motivated violations of the Fair Housing Act.

In lieu of an Answer to Black's Complaint, Defendants Erika Holliday (Liddick) and Hunter's Run Apartments LP filed their motion to dismiss, arguing that Black's Complaint must be dismissed because it was filed beyond the applicable statute of limitations and because it fails to state a claim. Defendants' Memorandum, generally. Defendants Naomi Friedrichsen and Interstate Realty Management Company did not join in the motion, file answers, or otherwiserespond to Black's Complaint. Counsel for Holliday and Hunter's Run, in their motion to dismiss, insist that Friedrichsen and Interstate Realty were never served with summons in this case, that the time for doing so under Federal Rule 4 has passed, and that Friedrichsen and Interstate Realty should be dismissed from the case for that reason. In their memorandum in support of their motion to dismiss, Defendants Holliday and Hunter's Run state that "[t]o date, under information and belief, Michaels Management-Affordable LLC f/k/a Interstate Realty Management Company and Naomi Friedrichsen have not been served a copy of the summons and complaint in [this case]. . . . It has been over 90 days since Plaintiff's New Complaint was filed. Thus, pursuant to FRCP 4(m) Michaels Management-Affordable LLC f/k/a Interstate Realty Management Company and Naomi Friedrichsen must be dismissed from the action." Defendants' Memorandum (ECF 15), p. 5.

The Defendants, or more specifically the movants-Holliday and Hunter's Run-argue in their motion that Black's claims should be dismissed because 1) they are barred by the applicable 2-year statute of limitations, and 2) Black's FHA claim fails as a matter of law because she cannot show that she was constructively evicted. The Defendants argue that "Plaintiff entered into an agreement, one she proposed, with Hunter's Run wherein Hunter's Run agreed to make an exception to its guest policy by allowing unauthorized occupants to reside at the Property until September 15, 2017 (later extended to September 21, 2017) in exchange for Plaintiff agreeing to vacate the Property by said date. . . . This Joint Agreement negates Plaintiff's contention that she was constructively evicted as Plaintiff voluntarily offered to move out of the Property in exchange for Hunter's Run permitting her to violate its guest policy under the Lease." Id., pp. 8-12.³ The Defendants also argue that "[t]he ICRC Proceeding does not toll the statute of limitations on Plaintiff's New Complaint[,]" (id., p. 10) and that Black cannot avoid the statute of limitations based on a continuing violation theory (id., p. 11). According to the Defendants, "[w]ithout the applicability of the continuing violation theory and/or the tolling provisions under 42 U.S.C. § 3613(a)(1)(B), Plaintiff's New Complaint must be dismissed as it fails to state a timely claim upon which relief can be granted." Id.

STANDARD OF REVIEW

Holliday and Hunter's Run bring their present motion pursuant to Federal Rule 12(b)(6). "'A motion to dismiss pursuant to Rule 12(b)(6) challenges the viability of a complaint by arguing that it fails to state a claim upon which relief may be granted.'" Savoy v. BMW of N. Am., LLC, 313 F.Supp.3d 907, 913 (N.D. Ill. 2018) (quoting Firestone Fin. Corp. v. Meyer, 796 F.3d 822, 825 (7th Cir. 2015)). When deciding a motion to dismiss under Rule 12(b)(6), the court accepts as true all factual allegations in the complaint and draws all inferences in favor of the plaintiff. Bielanski v. County of Kane, 550 F.3d 632, 633 (7th Cir. 2008). The complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). In Bell Atlantic Corp....