Miami Valley Fair Hous. Ctr., Inc. v. Preferred Living Real Estate Invs., LLC
| Decision Date | 28 September 2018 |
| Docket Number | Case No. 2:15-cv-2737 |
| Parties | MIAMI VALLEY FAIR HOUSING CENTER, INC., et al., Plaintiffs, v. PREFERRED LIVING REAL ESTATE INVESTMENTS, LLC, et al., Defendants. |
| Court | U.S. District Court — Southern District of Ohio |
OPINION AND ORDER
This action arises out of alleged violations of the Fair Housing Act, Title VII of the Civil Rights Act of 1968 ("FHA"), as amended by the Fair Housing Amendments Act of 1988 ("FHAAA"), 42 U.S.C. § 3601, et seq. Specifically, Plaintiff Miami Valley Fair Housing Center, Inc. ("Plaintiff") alleges that Defendants Preferred Real Estate Investments, Inc. ("PREI, Inc."); Preferred Real Estate Investments, LLC ("PREI, LLC"); Preferred Real Estate Investments II, LLC ("PREI II"); Andover Park, LLC; Andover Park II, LLC; Taylor House, LLC; Palmer Square, LLC; Clifton Park, LLC; and Alexander Square, LLC (collectively "Defendants"), through their design and construction of five multifamily apartment complexes located in and around Columbus, Ohio, violated and continue to violate the accessibility requirements of the FHAA, thereby discriminating against individuals with disabilities. (Am. Compl. ¶¶ 1, 13, ECF No. 2.)
This action is before the Court on a number of pending matters, all of which are ripe for review. For the reasons described herein, the following motions are DENIED: Plaintiff's Motion to Strike the Report and Testimony of Mark Drotar (ECF No. 100); Defendants' Motion for Summary Judgement (ECF No. 101); Plaintiff's Motion to Strike the Report and Testimony of Paul Sheriff (ECF No. 102); Plaintiff's Motion for Partial Summary Judgment (ECF No. 103).
The following motions are DENIED as MOOT: Plaintiff's Motion to Strike Defendants' Inadmissible Affidavit Evidence (ECF No. 123); Plaintiff's Motion to Stay Defendant's Motion in Limine (ECF No. 126); Plaintiff's Motion for Expedited Briefing on its Motion to Stay (ECF No. 127).
The following motions are GRANTED: Defendants' Motion in Limine Permitting Use of Paul Sheriff's Report and Video (ECF No. 125); Plaintiff's Unopposed Motion for Hearing (ECF No. 143).
This Court hereby STAYS this action as described more fully below.
The Court incorporates the background facts described in its March 3, 2017, Opinion and Order resolving the parties' previous motions for summary judgment. (ECF No. 83.) For clarity, it briefly recites a few of those facts and describes new ones relevant to the parties' current motions.
Plaintiff is non-profit Ohio organization that aims to eliminate housing discrimination. It alleges that Defendants are responsible for violations of the FHAA at five multifamily apartment complexes located in and around Columbus, Ohio: Andover Park, Palmer House, Clifton Park, Taylor House, and Alexander Square (collectively "the developments"). Each of the developments is or was owned by the LLC defendant that bears the same name— Andover Park, LLC; Palmer House, LLC; Clifton Park, LLC; Taylor House, LLC; and Alexander Square, LLC (collectively "the ownership LLCs").
PREI, LLC is an Ohio investment entity. (Nick King Aff., ¶ 6, ECF No. 101-6, at PAGE ID # 11295.) It asserts that it holds or held an ownership interest in three of the ownership LLCs: Andover Park, LLC, Palmer Square, LLC, and Clifton Park, LLC.1 PREI, LLC has been owned by Nick King and Mike Kenney since 1999. (King Dep. II, ECF No. 98-3, at PAGE ID # 6104-05.) PREI, LLC acquired land as part of a 1031 like-kind tax exchange and then immediately sold it to Andover Park, LLC, Palmer Square, LLC, and Clifton Park, LLC. (Nick King Aff., ¶ 10, ECF No. 101-6, at PAGE ID # 11296.) That land was then used to build those three corresponding developments. (Id.) Aside from that, however, PREI, LLC, has never owned any land. (Id.)
PREI II is also an Ohio investment entity. (Nick King Aff., ¶ 6, ECF No. 101-6, at PAGE ID # 11295.) It holds or held an ownership interest in two of the ownership LLCs: Taylor House, LLC, and Alexander Square, LLC. (King Dep., ECF No. 101-2, at PAGE ID # 11268-69; ECF No. 101-10, at PAGE ID # 11344; ECF No. 101-11, at PAGE ID #11354.) PREI II is owned by Mike Kenney, Nick King, and Jennifer King. (King Dep. II, ECF No. 98-3, at PAGE ID #6171.)
Defendant PREI, Inc. is an Ohio corporation engaged in real estate development and management. It contracted with the ownership LLCs to act as developer and general contractor for each of the developments. In that capacity, PREI, Inc. secured financing for the developments and hired architects, civil engineers, land planners, and other design professionals as well as subcontractors for construction. (Nick King Aff., ¶ 3, ECF No. 101-6, at PAGE ID # 11295; King Dep. Exc, ECF No. 101-2, at PAGE ID # 11255, 11258, 11260, 11246, 11250,11257, 11259, 11252.) The developments were all developed at the same time or in successive order during a continuous seven-year period. (King Dep., ECF No. 98-2, at PAGE ID # 5786-87, 5795-96, 5853, 5875, 5890, 5895, 5904, 5909, 5918, 5922.) Although PREI II owned a one per cent interest in PREI, Inc., in 2003, PREI, Inc. is now owned by Mike Kenney and Nick King, who are also employed by PREI, Inc. as President and Vice-President respectively. (Nick King Aff., ¶ 5, ECF No. 101-6, at PAGE ID # 11295.) They both oversaw the developments as PREI, Inc. employees. (Id. at ¶¶ 1-2.)
As more fully described in the Court's March 3, 2017, Opinion and Order, Plaintiff became aware of the developments in 2014, after someone saw them on a website and noticed what she thought might be FHAA violations. That person visited several of the developments to confirm her suspicions and then sought assistance in investigating the development from Plaintiff and a second non-profit organization, Central Ohio Fair Housing Association ("COFHA"). Those investigation efforts included field testing and hiring several professionals, including an accessibility expert, to evaluate the developments. On August 19, 2015, Plaintiff and COFHA filed suit against the current Defendants and architect Jonathan Barnes Architecture and Design, Ltd. ("JBAD") alleging violations of the FHAA's accessibility requirements. (ECF No. 1.) On March 8, 2017, Defendants were awarded summary judgment on COFHA's claims on the basis that COFHA lacked standing. (ECF No. 83.) On April 11, 2017, Plaintiff dismissed its claims against JBAD. (ECF No. 86.) Discovery closed July 31, 2017, with the exception of punitive damages discovery, which was stayed pending resolution of the parties' dispositive motions. (ECF No. 89.)
Plaintiff and Defendants have both moved for summary judgment and filed a number of other motions related to the same.
Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The movant has the burden of establishing that there are no genuine issues of material fact, which may be accomplished by demonstrating that the nonmoving party lacks evidence to support an essential element of its case. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Barnhart v. Pickrel, Schaeffer & Ebeling Co., 12 F.3d 1382, 1388-89 (6th Cir. 1993). When the moving party has carried this burden, the nonmoving party must then set forth specific facts showing that there is a genuine issue for trial. Moldowan v. City of Warren, 578 F.3d 351, 374 (6th Cir. 2009).
"After the parties have presented their evidence, 'the judge's function is not himself to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial.'" Moldowan, 578 F.3d at 374 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). In evaluating the evidence, the court must draw all inferences in the light most favorable to the nonmoving party. Id. The nonmoving party, however, cannot establish a genuine issue for trial by producing a mere scintilla of evidence in support of its position. Anderson, 477 U.S. at 251; see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (). A genuine issue for trial exists only "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248.
Here, the parties have filed cross-motions for summary judgment. Each party, as a movant for summary judgment, bears the burden of establishing that no genuine issue of material fact exists and that it is entitled to a judgment as a matter of law. The fact that one party fails to satisfy that burden on its own Rule 56 motion does not automatically indicate that the opposing party has satisfied the burden and should be granted summary judgment on the other motion. In reviewing cross-motions for summary judgment, the court should "evaluate each motion on its own merits and view all facts and inferences in the light most favorable to the non-moving party." Wiley v. United States, 20 F.3d 222, 224 (6th Cir. 1994). The standard of review for cross-motions for summary judgment does not differ from the standard applied when a motion is filed by one party to the litigation. Taft Broad. Co. v. United States, 929 F.2d 240, 248 (6th Cir. 1991).
The FHAA prohibits discrimination "against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection with such dwelling, because of a handicap." 42 U.S.C. § 3604(f)(2). Under the FHAA, discrimination includes:
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