Fedynich v. Lozano

Decision Date23 February 2021
Docket NumberCivil Action No. 3:20cv260
CourtU.S. District Court — Eastern District of Virginia

This matter comes before the Court on three motions:

(1) Plaintiffs Nicole and Elizabeth Fedynich's ("the Fedynichs") Motion to Joinder this Removal Action with 3:20cv260 (the "Motion to Join"), (ECF No. 10);
(2) Defendants Juana Lozano; Marie White; Steve Boyce; Angelica Redfern; Valor Phase II, LP; and, S. L. Nusbaum Realty, Co.'s (collectively, the "Defendants") Motion to Dismiss1 pursuant to Federal Rule of Civil Procedure 12(b)(6)2 (the "Motion to Dismiss"), (ECF No. 12); and,
(3) Defendants Motion to Remand and/or Strike Plaintiffs' Motion to Correct (the "Motion to Remand or Strike"), (ECF No. 14).

The Fedynichs, proceeding pro se, timely responded to the Motion to Dismiss and to the Motion to Remand or Strike, (ECF Nos. 21-22), and Defendants replied, (ECF Nos. 23-24). These matters are ripe for disposition.

The Court dispenses with oral argument because the materials before it adequately present the facts and legal contentions, and argument would not aid the decisional process. The Court exercises jurisdiction pursuant to 28 U.S.C. §§ 13313 and 1367(a).4 For the reasons that follow, the Court will grant in part and deny in part the Motion to Dismiss, grant in part and deny in part the Motion to Remand or Strike, and, deny the Motion to Join.

I. Factual and Procedural Background

The Fedynichs bring this Fair Housing Act and related-claims action against the six Defendants. The Fedynichs assert that Defendants have discriminated against them under federal law by failing to rectify smoke and asthma triggers in their Section 8 housing and by otherwise discriminating against them in response to their complaints. (See generally Am. Compl.)

A. Factual Background5

The Fedynichs allege that Elizabeth suffers from "severe asthma" that she "self-verified." (Am. Compl. ¶ 3.) Due to Elizabeth's asthma, the Fedynichs sought an apartment that would "suit their disability related housing needs." (Id. ¶ 1.)

On March 11, 2020, the Fedynichs "signed a lease and moved into Valor Phase II LP" ("Valor"). (Id. ¶ 2.) "Valor is a low-income tax credit (LITC) property that accepts all housing choice vouchers." (Id.) To qualify for a Valor apartment, the Fedynichs "utilized their section 8 housing choice voucher." (Id.) Prior to signing, the Fedynichs "looked at the apartments and filled out an application," which Valor approved. (Id. ¶ 1.)

After Valor approved their application, the Fedynichs met with Juana Lozano, Valor's Assistant Manager. (Id. ¶ 2.) During the meeting, the Fedynichs "mentioned their need for a smoke free property." (Id. ¶ 1.) Lozano informed the Fedynichs that Valor "[was] not a smoke free property" and as such, suggested the Fedynichs "make sure [Valor] is going to be a fit." (Id. ¶ 2.) Specifically, "Valor's policy is to allow smoking on balconies or parties and in all common areas and prohibiting it only inside the apartment itself." (Id. ¶ 1.) Lozano "brought up the property not being smoke free twice." (Id. ¶ 2.)

Nonetheless, on March 11, 2020, the Fedynichs moved into Valor because the apartment "was a non-indoor smoking unit" and they "had no other options that would suit their . . . needs." (Id.) The evening of their move-in, the Fedynichs allege they "discovered cigarette andmarijuana smoke odor in their apartment." (Id.) On March 12, 2020, the next day, the Fedynichs reported the incident to Lozano. (Id.) The Fedynichs "suspected it was the person next door to them on the first floor" and suggested to Lozano that they might seek a restraining order. (Id.) Lozano asked the Fedynichs to "[h]old off," and informed them that Valor's policy was to "reach out to residents" once it received a complaint. (Id.) Lozano assured the Fedynichs that Valor would "handle it from here." (Id.)

The same day, and one day after moving in, Elizabeth requested that Valor, through Lozano, "provide her with air purifiers" because Elizabeth allegedly could not "endure the ongoing cigarette smoking affecting her lungs." (Id. ¶ 3.) On April 3, 2020, twenty-two days later, Valor delivered the air purifiers "by which point . . . Elizabeth had suffered [a] severe asthma attack and was in the middle of [another]." (Id. ¶ 4.) The Fedynichs allege that "Defendants tone was hostile and resentful for having to provide" the air purifiers. (Id. 6.)

When smoking in neighboring apartments continued, the Fedynichs continued to follow up with Valor with "pleas for assistance." (Id. ¶ 5.) However, the Fedynichs allege that Defendants proceeded to "block [their] emails and refuse[] to answer their office phone and . . . return calls." (Id.) The Fedynichs allege that "Defendants shut down the[ir] offices so there was no way to communicate with [Defendants]." (Id.) As the landlord-tenant relationship deteriorated, Defendants "serve[d] a 21/30 notice6 on [the Fedynichs] for . . . lease violations"(the "Notice").7 (Id. ¶ 6.) The Fedynichs allege that they attempted to ask Lozano about the Notice, but that she "refused to answer." (Id.) Similarly, the Fedynichs allege that Assistant Vice President of Nusbaum Steve Boyce and Regional Property Manager Angelica Redfern also refused to discuss the Fedynichs' complaints. (Id. 11-12.) The Fedynichs allege that at some point they came to learn of another family "who [was] moving out because of marijuana affecting their infant daughter." (Id. 10.) In general, the Fedynichs allege that smoke "emanat[ed] from the buildings." (Id.)

As the smoking persisted, the Fedynichs acted on their own accord. First, the Fedynichs "wrote a letter to the residents of the building . . . to inform them of their rights to a smoke free drug free property." (Id. 13.) Second, because the "air purifiers [were] simply insufficient to deal with" the alleged asthma triggers, including the smell of air fresheners, the Fedynichs began sleeping on their patio in a tent. (Id. 10, 14.) Finally, the Fedynichs recorded a neighbor allegedly "engaged in a conversation with Elizabeth where she admitted smoking in her apartment and was adamant about the fact that she was not going to stop smoking inside." (Id. 6.)

Defendants offered the Fedynichs a number of alternatives for relief.8 First, Defendants offered the Fedynichs $1500 to move out of their apartment. (Id. ¶ 6.) The Fedynichs declined this offer. (Id.) Second, Valor offered the Fedynichs "more money to move out, . . . around $3000." (Id.) Again, the Fedynichs refused. (Id.) Third, Defendants offered to move the Fedynichs to a different Valor unit. (See id. 11.) Sometime after their refusal, Defendantsallegedly "inform[ed] [the Fedynichs] that an unlawful detainer suit was going to be filed against them and they needed to move out" (the "Unlawful Detainer Action"). (Id. ¶ 6.)

The Fedynichs allege that Defendants' "real true agenda . . . was to make [them] vacate the premises." (Id. 11.) Specifically, the Fedynichs allege that Defendants "were counting on [them] to walk away from their home . . . [in] a calculated move to rid themselves of the problem they created by unfairly treating tenants." (Id. 12.) The Fedynichs allege that the air quality in their apartment caused their health to "deteriorat[e]," creating the need for a nebulizer machine. (Id. 12.) The Fedynichs report that the smoke caused one "trip to the ER," as well as other "well documented incidents." (Id.) Additionally, the Fedynichs allege that their utilities increased as a result of "having to run the heat while the windows were open to . . . try and obtain fresh air in their apartment." (Id. 16.) As a result, the Fedynichs seek damages in the amount of $1,000,000. (Id.)

B. Procedural Background

On April 9, 2020, Elizabeth Fedynich, acting pro se and requesting to proceed in forma pauperis, filed a complaint alleging that Defendants violated federal statutes and regulations regarding fair housing requirements.9 (Compl., ECF No. 1.) Although the initial complaint also named Nicole Fedynich as a plaintiff, Nicole did not file the requisite paperwork to proceed in forma pauperis.

On April 14, 2020, the Court provisionally filed the initial complaint, which Elizabeth submitted with her Motion for Leave to proceed in forma pauperis. (ECF No. 3.) After findingthat the proffered complaint did not comply with Federal Rule of Civil Procedure 8,10 (Apr. 14, 2020 Order 2, ECF No. 2), the Court ordered the Fedynichs to file an Amended Complaint no later than June 1, 2020. (Id.) The Court further ordered Nicole to file her own Motion for Leave to proceed in forma pauperis. (Id.)

On June 3, 2020, two days after this Court's deadline, Nicole filed a Motion for Leave to Proceed in forma pauperis, and together, Plaintiffs filed an Amended Complaint, (ECF No. 6-1), with a Motion for Extension of Time to File an Amended Complaint (the "Motion for Extension"), (ECF No. 6). On June 29, 2020, the Court granted Nicole's Motion for Leave to Proceed in forma pauperis and the Motion for Extension. (ECF No. 7.)

On July 10, 2020, prior to the filing of the Unlawful Detainer Action, the Fedynichs filed the Motion to Join, seeking to remove an action that Defendants would later file in the Fredericksburg General District Court. (ECF No. 10.) No Defendants responded to the Motion to Join, and the time to do so has expired. On July 17, 2020, Defendants filed the Motion to Dismiss. (ECF No. 12.) The Fedynichs timely responded to the Motion to Dismiss, (ECF No. 21), and Defendants replied, (ECF No. 24). On that same day, Defendants filed the Motion to Remand or Strike. (ECF No. 14.) The Fedynichs also timely responded to the Motion to Remand or Strike, (ECF No. 22), and Defendants replied, (ECF No. 24).

In the Amended Complaint, the Fedynichs bring eight counts:

(1) Count I: Violation of the FHA (

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