Moseke v. Miller and Smith, Inc.

Decision Date17 May 2002
Docket NumberNo. Civ.A. 01-1771-A.,Civ.A. 01-1771-A.
Citation202 F.Supp.2d 492
CourtU.S. District Court — Eastern District of Virginia
PartiesTonya MOSEKE, et al., Plaintiffs, v. MILLER AND SMITH, INC., et al., Defendants.

Pragna Soni, Ross, Dixon & Bell, Eliza Tamsin Platts-Mills, Washington Lawyers' Committee for Civil Rights & Urban Affairs, Washington, DC, for plaintiffs.

John M. Bredehoft, Venable, Baeter and Howard, Vienna, Virginia, Mark Patrick Graham, Rees Broome & Diaz, Vienna, VA, Wilbert Washington, II, Chadwick, Washington, Olters, Moriarty & Lynn, Fairfax, VA, Michael L. O'Reilly, Rees Broome & Diaz, Vienna, Virginia, VA, for defendants.


LEE, District Judge.

THIS MATTER is before the Court on Defendants' Motion to Dismiss Plaintiffs' Complaint under FED.R.CIV.P. 12(b)(1) and 12(b)(6). The individual plaintiff, Tonya Moseke ("Moseke") a person with a disability, and the organizational plaintiff, the Equal Rights Center ("ERC"), contend that when Moseke sought an apartment in the Northern Virginia vicinity she encountered illegal barriers to her access at Defendants' various housing complexes, in violation of both the Federal Fair Housing Act ("FHA") and the Virginia Fair Housing Law ("VFHL"). Defendants are builders, architects and condominium associations who assert that: (1) the organizational plaintiff's diversion of resources to litigate this matter does not constitute an Article III injury and therefore ERC has no standing in this matter; (2) Plaintiffs' Complaint is untimely because the statute of limitations expired two years after the buildings were constructed; (3) the Eton Square Condominium Association ("ESCA") development was completed prior to the effective date of both the FHA and the VFHL; and (4) Plaintiffs' Complaint does not support a claim for punitive damages.

The primary issues before this Court are: (1) whether the organizational plaintiff, ERC, has standing in this action under Rule 12(b)(1) because it has suffered a minima of injury in fact; and (2) whether the inaccessible features of a FHA noncompliant building are a continuing violation that tolls or extends the statute of limitations under Rule 12(b)(6).

As to the first question, this Court finds that the organizational plaintiff, ERC, has standing in this action. At this stage in the litigation, ERC has alleged facts that if true demonstrate a palpable injury to the organization. ERC has adequately alleged a substantial diversion of its limited resources to address the Defendants' alleged discriminatory practices.

Second, as to the statute of limitations issue, this Court concludes that Plaintiffs' design and construction claim is effectively time-barred. In reaching this conclusion, this Court considers the plain meaning of the FHA time limitation provision as well as Supreme Court precedent and other authority governing the continuing violation doctrine. Because Defendants performed no act within two years preceding the filing of the Complaint, the continuing violation doctrine is inapplicable. Similarly, the discovery doctrine is unavailing because the plain language of the FHA statute provides that it is either the occurrence of a housing practice or the termination of a continuing housing practice that triggers the statute of limitations, not the plaintiff's discovery of the alleged wrongdoing.

The Court does not reach the third and fourth grounds of Defendants' motion to dismiss, specifically whether the FHA applies to the ESCA development and whether Plaintiffs sufficiently pled punitive damages, respectively, because resolution of the statute of limitations issue is dispositive in this matter with respect to the moving Defendants. However, the case is not dismissed in its entirety because Plaintiff Moseke still retains a reasonable accommodations claim against Defendant Eton Square Condominium Association. To be clear, the motion to dismiss is granted only so far as Plaintiffs' design and construction claim. Since Plaintiff ERC's claim is based solely on the design and construction allegations, ERC's claim is dismissed. Further, since Defendant Baldwin Grove has yet to file a motion in this matter, it still remains a defendant in this case.


Plaintiffs, Moseke and the ERC (collectively "Plaintiffs"), filed a complaint against eleven Defendants in this Court,1 alleging disability discrimination violations under the Federal Fair Housing Act ("FHA"), 42 U.S.C. § 3601 (2000), et seq., and the Virginia Fair Housing Law ("VFHL"), VA.CODE ANN. § 36-96.1 (2000), et seq., respectively.2 Plaintiffs specifically allege non-compliance with the FHA design and construction statutory provision, 42 U.S.C. § 3604(f)(3)(C), as well as a violation of the FHA reasonable accommodation provision, 42 U.S.C. § 3604(f)(3)(A). Of these eleven Defendants, seven are either developers or architectural firms, while four are condominium associations.

In the summer of 1999, Moseke sought an apartment in Northern Virginia. Moseke has juvenile rheumatoid arthritis which requires her to use a motorized scooter. After viewing the ESCA development, Moseke determined that the exterior premises would not facilitate the use of her motorized scooter. In June 1999, Moseke consulted with the ERC regarding her options. The ERC is a nonprofit civil rights advocacy group that seeks to protect civil rights, including disability rights, through educational, counseling, and referral services, as well as litigation, in the greater Washington D.C. metropolitan area. Based on her consultation with the ERC, Moseke sought a reasonable accommodation from Defendant ESCA, namely a designated handicapped parking place and a ramp to her front door. At some unspecified time between June 1999 and January 2000, however, ESCA allegedly refused Moseke's request.3

Based on ESCA's refusal of a reasonable accommodation, Moseke filed a complaint with the ERC in January 2000. Subsequently, the ERC conducted multiple investigations of Defendant ESCA, as well as two other developments built by Defendants Miller and Smith: Defendant Baldwin Grove Condominium Association ("BGCA") and Defendant Gates at West Falls Condominium Association ("GWFCA"). Between March and August 2000, the ERC determined that all three complexes had both exterior and interior FHA violations through the use of multiple investigative tester teams.4 The ERC testers visited the three developments and observed exterior violations including lack of handicapped designated parking spaces and lack of curb cuts. Additionally, the ERC testers observed that all three developments had interior violations including environmental controls that were positioned too high and doorways that were too narrow.

Plaintiffs filed the instant Complaint on November 19, 2001. Defendants now move this Court to dismiss all or portions of Plaintiffs' Complaint under FED. R.CIV.P. 12(b)(1) for ERC's lack of standing. Defendants additionally move this Court to dismiss all or part of Plaintiffs' Complaint under FED.R.CIV.P. 12(b)(6) contending that: 1) the expiration of the statute of limitations;5 2) the ESCA development was completed prior to the effective date of the federal and Virginia FHA; and 3) Plaintiffs' Complaint does not support a claim for punitive damages.

A. Standing.
1. Standard of review.

The Court first turns to the issue of whether the organizational plaintiff, ERC, has Article III standing. See Jones v. Am. Postal Workers Union, 192 F.3d 417, 422 (4th Cir.1999) (citing Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (explaining that court must first consider jurisdictional questions such as standing before reaching other issues presented)). Defendants contend that the Court lacks subject matter jurisdiction over ERC's claim because ERC has not pled a cognizable Article III injury.

"For purposes of ruling on a motion to dismiss for want of standing, [the court] must accept as true all material allegations of the complaint, and must construe the complaint in favor of the complaining party." Pacific Legal Foundation v. Goyan, 664 F.2d 1221, 1223 (4th Cir.1981) (quoting Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975)). See also Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir.1982) (citations omitted) (when a defendant contends that the complaint fails to allege facts upon which subject matter jurisdiction may be based, "all the facts alleged in the complaint are assumed to be true and the plaintiff, in effect is afforded the same procedural protection as he would receive under a Rule 12(b)(6) consideration.") Plaintiff bears the burden of proving subject matter jurisdiction. See Thomson v. Gaskill, 315 U.S. 442, 62 S.Ct. 673, 86 L.Ed. 951 (1942).

2. Standing under the Fair Housing Act.

The primary issue between the parties is whether the injury alleged by the organizational plaintiff ERC is sufficient to satisfy Article III standing.6 The question of standing requires the Court to determine "whether the litigant is entitled to have the Court decide the merits of the dispute or of particular issues. This inquiry involves both constitutional limitations on federal-court jurisdiction and prudential limitation on its exercise...." Warth, 422 U.S. at 498, 95 S.Ct. 2197.

Under the FHA, an aggrieved person is defined as "any person who claims to have been injured by a discriminatory housing practice." 42 U.S.C. § 3602(i)(1).7 The Supreme Court has made clear that standing under the FHA is "not limited by prudential principles." Saunders v. Gen. Servs. Corp., 659 F.Supp. 1042, 1051 (E.D.Va.1987) (citing Trafficante v. Metropolitan Life Insur. Co., 409 U.S. 205, 209, 93 S.Ct. 364, 34 L.Ed.2d 415 (1972)). See also Havens Realty Corp. v. Coleman, 455 U.S. 363, 379, 102 S.Ct. 1114, 71 L.Ed.2d 214 (1982). Congress eliminated the prudential barriers to confer standing in suits brought pursuant to the FHA to the fullest...

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