Long v. Aronov Realty Management, Inc.

• Decision Date: 04 February 2009
• Docket Number: Case No. 2:07-CV-881-WKW [WO].
• Citation: 645 F.Supp.2d 1008
• Parties: Terrence LONG, et al., Plaintiffs, v. ARONOV REALTY MANAGEMENT, INC., et al., Defendants.
• Court: U.S. District Court — Middle District of Alabama

645 F.Supp.2d 1008

Terrence LONG, et al., Plaintiffs, v. ARONOV REALTY MANAGEMENT, INC., et al., Defendants.

Case No. 2:07-CV-881-WKW [WO].

United States District Court, M.D. Alabama, Northern Division.

February 4, 2009.

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Charles Michael Quinn, Kevin Wade Jent, Wiggins Childs Quinn & Pantanzis, PC, Birmingham, AL, for Plaintiffs.

Charles Andrew Stewart, III, Quindal C. Evans, Bradley Arant Rose & White LLP, Robert David Segall, Copeland Franco Screws & Gill, Norman Gunter Guy, Jr., Ball Ball Matthews & Novak PA, Montgomery, AL, for Defendants.

MEMORANDUM OPINION AND ORDER

W. KEITH WATKINS, District Judge.

Several motions for summary judgment in this case are ripe for resolution. Prior to Plaintiffs' Amended Complaint (Doc. # 43), Defendant Meiying Forney ("Forney") filed a motion for summary judgment (Doc. # 35), with a supporting brief (Doc. # 36), as did Defendants Aronov Realty Management ("Aronov Management") and Amy Clark Knudsen ("Knudsen") (Docs. # 37 & 38). Plaintiffs subsequently amended their complaint to add Aronov Realty Brokerage, Inc. ("Aronov Brokerage") as a defendant. (Doc. # 43.) Aronov Brokerage filed a motion for summary judgment (Doc. # 50), with a supporting brief (Doc. # 51), and Aronov Management filed a second motion for summary judgment (Doc. # 52), with a supporting brief (Doc. # 53). Plaintiffs responded to Forney's motion (Doc. # 56), and responded to all other Defendants in one response (Doc. # 57), and filed an evidentiary submission for all claims (Doc. # 58). Forney replied (Doc. # 63), and Aronov Management, Aronov Brokerage, and Knudsen filed a combined reply (Doc. # 64), with evidentiary submission (Doc. # 65). Based upon careful consideration of the arguments of counsel, the relevant law and the record as a whole, the motions are due to be denied in part and granted in part.

I. JURISDICTION AND VENUE

Subject matter jurisdiction is exercised pursuant to 28 U.S.C. § 1331, 1343(a)(4), 2201, and 2202. The parties do not contest personal jurisdiction or venue, and there are allegations sufficient to support both.

II. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiffs Terrence Long ("Long") and Barry Barr ("Barr") are suing Defendants for discriminating against them on the basis of race when they attempted to lease and purchase real estate in Montgomery, Alabama. (Am. Compl.) Plaintiffs allege violations of 42 U.S.C. § 1981 and 42 U.S.C. § 1982, and request declaratory and injunctive relief, compensatory and punitive damages, retention of jurisdiction for enforcement, costs, reasonable attorney's fees, prejudgment interest, and any additional relief deemed just and equitable. (Am. Compl. ¶¶ 31-40 & p. 7.) Long and Barr filed suit October 2, 2007 (Doc. # 1), and Defendants answered (Docs.# 7, 8 10). In June 2008, Plaintiffs filed a motion to amend their complaint to add Aronov Brokerage. (Doc. # 33.) The first summary judgment motions were filed after that, but before the Amended Complaint. The second set of summary judgment motions, in addition to Aronov Brokerage's answer (Doc. # 48), followed the Amended Complaint. Pending are three additional motions that will be resolved by separate order, the Motion for Leave to File Defendants' Amended Witness List (Doc. # 68), the Motion for Leave to Use Ben Kushner's Video Deposition as Trial Testimony (Doc. # 74), and the Motion for Leave to Use Sam McGhar's Video Deposition as Trial Testimony (Doc. # 75), all filed by both Aronov entities and Knudsen.

The following facts are undisputed.¹ Long is a former major league baseball player who is African-American, and Barr is a Caucasian male. At the time of the alleged conduct, Knudsen was a commercial real estate broker for Aronov Brokerage, which is a wholly-owned subsidiary of Aronov Management.² In the spring of 2007, Long and Barr discussed opening a sports bar that would cater to African-Americans.³ That May, Knudsen showed Barr a commercial space for lease in the LeCroy Village Shopping Center ("Le-Croy"). LeCroy is owned by Forney. Knudsen assisted Forney in leasing the space even though Knudsen and Forney no longer had a written agency agreement for that space.⁴ Not long after meeting with Knudsen, Barr offered to buy the entire LeCroy shopping center for one million dollars, with a ten-percent sales commission, to be paid by Forney. Forney rejected the offer without presenting a counteroffer.

Also shortly after Barr's meeting with Knudsen, Mark Cranage ("Cranage") contacted Knudsen, who arranged for him to view the space. Don Little ("Little"), an attorney working for Forney, opened the space up, showed Cranage around, and discussed leasing options with him. Unbeknownst to Little, Barr had arranged for Cranage to visit the space because Barr was suspicious that he was being discriminated against; Cranage videotaped the meeting.⁵ Eventually, a preexisting tenant with Forney negotiated a lease for the space.

At issue in this case is whether Knudsen and Little⁶ impermissibly discriminated against Long and Barr when they tried to lease a space in LeCroy or purchase LeCroy. Of the Defendants, only Knudsen and Forney face personal liability, and Forney, for the offer to purchase only. The other Defendants face vicarious liability—for Forney because Knudsen and Little were allegedly her agents,⁷ for Aronov Brokerage, on the basis of employer liability, and for Aronov Management, on the basis of employer liability or because Knudsen was allegedly an agent. Liability for all Defendants depends principally upon two separate but interrelated events—the attempt to lease the LeCroy space and the attempt to purchase LeCroy. The most salient disputed facts relate to Knudsen's meeting with Barr, and Little's meeting with Cranage.

III. STANDARD OF REVIEW

"Summary judgment is appropriate `if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.'" Greenberg v. BellSouth Telecomms., Inc., 498 F.3d 1258, 1263 (11th Cir.2007) (per curiam) (citation to former rule omitted); Fed.R.Civ.P. Rule 56(c) (Summary judgment "should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law."). The party moving for summary judgment "always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record, including pleadings, discovery materials and affidavits], which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The movant may meet this burden by presenting evidence indicating there is no dispute of material fact or by showing that the nonmoving party has failed to present evidence in support of some element of its case on which it bears the ultimate burden of proof. Id. at 322-24, 106 S.Ct. 2548.

If the movant meets its evidentiary burden, the burden shifts to the nonmoving party to establish, with evidence beyond the pleadings, that a genuine issue material to each of its claims for relief exists. Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir.1991); Celotex, 477 U.S. at 324, 106 S.Ct. 2548; Fed. R. Civ. P 56(e)(2) ("When a motion for summary judgment is properly made and supported, an opposing party may not rely merely on allegations or denials in its own pleading; rather, its response must . . . set out specific facts showing a genuine issue for trial."). What is material is determined by the substantive law applicable to the case. Anderson, 477 U.S. at 248, 106 S.Ct. 2505; Lofton v. Sec'y of the Dep't of Children & Family Servs., 358 F.3d 804, 809 (11th Cir.2004) ("Only factual disputes that are material under the substantive law governing the case will preclude entry of summary judgment."). Furthermore, "[t]he mere existence of some factual dispute will not defeat summary judgment unless that factual dispute is material to an issue affecting the outcome of the case." McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1243 (11th Cir.2003) (per curiam) (internal quotation marks and citation omitted).

A genuine issue of material fact exists when the nonmoving party produces evidence that would allow a reasonable fact-finder to return a verdict in its favor. Greenberg, 498 F.3d at 1263; Waddell v. Valley Forge Dental Assocs., 276 F.3d 1275, 1279 (11th Cir.2001) (to establish a genuine issue of material fact, the nonmoving party must produce evidence such that a reasonable trier of fact could return a verdict in his favor). If the evidence on which the nonmoving party relies, however, "is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (citations omitted). "A mere `scintilla' of evidence supporting the [nonmovant's] position will not suffice; there must be enough of a showing that the [trier of fact] could reasonably find for that party," Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir.1990) (citation omitted), and the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts," Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Conclusory allegations based on subjective beliefs are likewise insufficient to create a genuine issue of material fact and do not suffice to oppose a motion for summary judgment. Holifield v. Reno, 115 F.3d 1555, 1564 n. 6 (11th Cir.1997) (per curiam) (Plaintiff's "conclusory assertions . . ....