Noah v. Assor

• Decision Date: 08 March 2019
• Docket Number: Case Number: 18-24336-CIV-MORENO
• Citation: 379 F.Supp.3d 1284
• Parties: Marlen NOAH, Plaintiff, v. Isaac ASSOR, Defendant.
• Court: U.S. District Court — Southern District of Florida

379 F.Supp.3d 1284

Marlen NOAH, Plaintiff,

v.Isaac ASSOR, Defendant.

Case Number: 18-24336-CIV-MORENO

United States District Court, S.D. Florida, Miami Division.

Signed March 8, 2019

Brian Jay Militzok, Militzok Law, P.A., Hollywood, FL, for Plaintiff.

Lauren Juliette Luck, Lauren Luck P.A., Lisa McKellar Poursine, McKellar Poursine, PLLC, Ryan John Bollman, Steve I. Silverman, Kluger, Kaplan, Silverman, Katzen & Levine, P.L., Miami, FL, for Defendant.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO DISMISS

FEDERICO A. MORENO, UNITED STATES DISTRICT JUDGE

Plaintiff Marlen Noah commenced this lawsuit against Defendant Isaac Assor, her former landlord, seeking declaratory judgment, injunctive relief, and damages, for unlawful sex discrimination and sexual harassment in violation of the federal Fair Housing Act and the Florida Fair Housing Act, and for intentional infliction of emotion distress. Defendant moved to dismiss the 5-count Complaint for failing to state a claim for relief. For the reasons below, Defendant's Motion to Dismiss is GRANTED IN PART AND DENIED IN PART .

I. BACKGROUND

Plaintiff Marlen Noah rented property from Defendant Isaac Assor from March 2016 through March 2017. In this lawsuit against her former landlord, Plaintiff alleges that over the period of her tenancy Defendant engaged in pervasive sexual harassment in violation of her rights to fair housing as protected by the federal Fair Housing Act, 42 U.S.C. § 3601 et seq. and the Florida Fair Housing Act, Fla. Stat. § 760.20 et seq. Separately, Plaintiff alleges the same conduct constituted intentional infliction of emotional distress. The Court has federal question jurisdiction over the federal claims pursuant to 28 U.S.C. Sections 1331 and 1343(a)(3), and supplemental jurisdiction over the state law claims pursuant to 28 U.S.C. Section 1367(a).

II. LEGAL STANDARD

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the formal sufficiency of the allegations supporting claims for relief. Under Rule 12(b)(6), the Court "may dismiss a claim for ‘failure to state a claim upon which relief can be granted.’ " Tello v. Royal Caribbean Cruises, Ltd. , 939 F.Supp.2d 1269, 1275 (S.D. Fla. 2013) (quoting Fed. R. Civ. P. 12(b)(6) ). To survive dismissal, the Complaint "must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. "While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Iqbal , 556 U.S. at 679, 129 S.Ct. 1937. And those "[f]actual allegations must be enough to raise a right to relief above the speculative level." Twombly , 550 U.S. at 555, 127 S.Ct. 1955. When ruling on a motion to dismiss, a court must view the complaint in the light most favorable to the plaintiff and accept the plaintiff's well-pleaded facts as true. See St. Joseph's Hosp., Inc. v. Hosp. Corp. of Am. , 795 F.2d 948, 954 (11th Cir. 1986).

III. DISCUSSION

The Complaint asserts five claims against Defendant: (1) in Count I, violations of the Fair Housing Act, 42 U.S.C. §§ 3604(f)(1)–(2), 3617 ; (2) in Count II, violation of the Florida Fair Housing Act, Fla. Stat. § 760.37 ; (3) in Count III, violation of the Florida Fair Housing Act, Fla. Stat. § 760.23(3) ; (4) in Count IV, violation of the Florida Fair Housing Act, Fla. Stat. § 760.23(2) ; and (5) in Count V, common law intentional infliction of emotional distress. Defendant seeks to dismiss each Count. The Court addresses each Count in turn.

A. ALLEGED VIOLATIONS OF THE FEDERAL FAIR HOUSING ACT, 42 U.S.C. SECTIONS 3604(f)(1)–(2), 3617

The federal Fair Housing Act provides for a private right of action to any person who is injured by an unlawful discriminatory housing practice. 42 U.S.C. § 3613(a)(1)(A). Plaintiff alleges Defendant engaged in pervasive sexually harassing conduct constituting sex discrimination under the Fair Housing Act. While the parties do not appear to dispute whether sexual harassment is actionable under the Fair Housing Act, the Eleventh Circuit has not expressly decided the issue. See Tagliaferri v. Winter Park Hous. Auth. , 486 F. App'x 771, 774 (11th Cir. 2012) (declining to decide whether sexual harassment is actionable under Fair Housing Act, but assuming it was for purposes of assessing factually deficient complaint).

Nevertheless, consistent with the overwhelming weight of federal authority, the Court finds Plaintiff's sexual-harassment based sex discrimination claims are actionable under the Fair Housing Act. See United States v. Hurt , 676 F.3d 649, 654 (8th Cir. 2012) ; Quigley v. Winter , 598 F.3d 938, 946 (8th Cir. 2010) ; Krueger v. Cuomo , 115 F.3d 487, 491 (7th Cir. 1997) ; DiCenso v. Cisneros , 96 F.3d 1004, 1008–09 (7th Cir. 1996) ; Honce v. Vigil , 1 F.3d 1085, 1088 (10th Cir. 1993) ; Shellhammer v. Lewallen , 770 F.2d 167 (6th Cir. 1985) (unpublished); see also, West v. DJ Mortg., LLC , 164 F.Supp.3d 1393, 1398 (N.D. Ga. 2016) ; Salisbury v. Hickman , 974 F.Supp.2d 1282, 1290 (E.D. Cal. 2013) ; Fahnbulleh v. GFZ Realty, LLC , 795 F.Supp.2d 360, 364 (D. Md. 2011) ; Glover v. Jones , 522 F.Supp.2d 496, 503 (W.D.N.Y. 2007) ; United States v. Koch , 352 F.Supp.2d 970, 980–81 (D. Neb. 2004) ; Williams v. Poretsky Mgmt., Inc. , 955 F.Supp. 490, 495 (D. Md. 1996) ; Beliveau v. Caras , 873 F.Supp. 1393, 1396–97 (C.D. Cal. 1995) ; N.Y. ex rel. Abrams v. Merlino , 694 F.Supp. 1101, 1104 (S.D.N.Y. 1988) ; Richards v. Bono , No. 5:04CV484-OC-10GRJ, 2005 WL 1065141, at *6–7 (M.D. Fla. May 2, 2005) ; Grieger v. Sheets , No. 87 C 6567, 1989 WL 38707, at *2 (N.D. Ill. Apr. 10, 1989).¹ Now the question is whether the Complaint plausibly alleges Fair Housing Act violations.

1.) Count I – 42 U.S.C. Section 3617

Plaintiff asserts in Count I that Defendant's conduct constituted "[i]nterference with the rights of persons in the exercise or enjoyment of, or on account of their having exercised or enjoyed ... based upon sex in the exercise or enjoyment of rights granted or protected by the FHA." (D.E. 1 at ¶ 23(c).) Defendant argues Plaintiff's Section 3617 claim should be dismissed as implausible under Twombly .² To state an interference claim, Plaintiff must allege: (1) Defendant interfered; (2) with; (a) Plaintiff's exercise of a right under Sections 3603–3606; (b) Plaintiff's enjoyment of a housing right after exercise of that right; or (c) Plaintiff's aid or encouragement to a protected person to exercise or enjoy a housing right; (3) because of discriminatory animus. Lawrence v. Courtyards at Deerwood Ass'n, Inc. , 318 F.Supp.2d 1133, 1143–44 (S.D. Fla. 2004) (citations omitted); see also Revock v. Cowpet Bay W. Condo. Ass'n , 853 F.3d 96, 112 (3d Cir. 2017) (listing elements for Section 3617 interference claim).

(a) "Interference"

Plaintiff must plead factual matter that, if true, demonstrates Defendant interfered with her rights under the Fair Housing Act. Now, "the Eleventh Circuit has not prescribed the precise magnitude of conduct required by § 3617." Dulworth Family L.P. v. 400 LA Peninsula Condo. Ass'n, Inc. , No. 2:11-cv-00584-UA-DNF, 2012 WL 11794802, at *3 (M.D. Fla. July 23, 2012). But district courts in the Eleventh Circuit agree that Section 3617 "extends only to discriminatory conduct that is so severe or pervasive that it will have the effect of causing a protected person to abandon the exercise of his or her housing rights." Lawrence , 318 F.Supp.2d at 1144 (quoting Gourlay v. Forest Lake Estates Civic Ass'n of Port Richey, Inc. , 276 F.Supp.2d 1222, 1235 (M.D. Fla. 2003), vacated because of settlement , 2003 WL 22149660 (M.D. Fla. Sept. 16, 2003) ); see also West , 164 F.Supp.3d at 1398 ; Fernandez v. Orlando Hous. Auth. , No. 6:15-cv-1341-Orl-40DAB, 2016 WL 2784989, at *4 (M.D. Fla. May 13, 2016) ; Dulworth Family L.P. , 2012 WL 11794802, at *3.³

Furthermore, Department of Housing and Urban Development regulations and interpretive case law reveal that actionable harassment arises primarily in two contexts: when behavior towards the tenant (1) constitutes quid pro quo sexual harassment; or (2) creates a hostile housing environment. See 24 C.F.R. § 100.600 ; West , 164 F.Supp.3d at 1398–1400. Quid pro quo harassment is understood as "an unwelcome request or demand to engage in conduct where submission to the request or demand, either explicitly or implicitly, is made a condition related to," among others, the "rental or availability of a dwelling" or "the terms, conditions, or privileges of the sale or rental." 24 C.F.R. § 100.600(a)(1). And "hostile environment harassment" is understood as "unwelcome conduct that is sufficiently severe or pervasive as to interfere with: [t]he availability, sale, rental, or use or enjoyment of a dwelling; [or] the terms, conditions, or privileges of the sale or rental." Id. § 100.600(a)(2). Hostile environment harassment "does not require a change in the economic benefits, terms, or conditions of the dwelling," id. , and it "can be written, verbal, or other conduct, and does not require physical contact ," id. § 100.600(b) (emphasis added).⁴ To prove hostile environment harassment, the decision maker must look to the "totality of the circumstances," which includes but is not limited to, "the nature of the conduct, the context in which the incident(s) occurred, the severity, scope, frequency, duration, and location of the conduct, and the relationships of the persons involved." Id. § 100.600(a)(2)(i)(A).

Here, Plaintiff asserts numerous allegations that, if true, plausibly allege unlawful interference on the basis of sex under the ...