Nur v. Blake Development Corp.

• Decision Date: 06 February 1987
• Docket Number: No. S85-147.,S85-147.
• Citation: 655 F. Supp. 158
• Parties: Abdul NUR; Jacqueline Mitchell; Mike Keen; and Gini Burns, Plaintiffs, v. BLAKE DEVELOPMENT CORP.; Rudy Buechler, Managing Agent; and Becky Faulkner, Consultant, Defendants.
• Court: U.S. District Court — Northern District of Indiana

655 F. Supp. 158

Abdul NUR; Jacqueline Mitchell; Mike Keen; and Gini Burns, Plaintiffs, v. BLAKE DEVELOPMENT CORP.; Rudy Buechler, Managing Agent; and Becky Faulkner, Consultant, Defendants.

No. S85-147.

United States District Court, N.D. Indiana, South Bend Division.

February 6, 1987.

John J. Roper, South Bend, Ind., for plaintiffs.

Joseph T. Helling, South Bend, Ind., for defendants.

MEMORANDUM and ORDER

MILLER, District Judge.

This cause comes before the court on the defendants' motion to dismiss the complaint as against plaintiffs Mike Keen and Gini Burns. Alternatively, the defendants seek summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. The matter has been fully briefed and is ripe for decision.

I.

The parties have presented, and the court will consider, matters outside the pleadings. Accordingly, the court shall treat the defendants' motion as one for summary judgment. Fed.R.Civ.P. 12(b).

(A)

In a summary judgment motion, the movant must first demonstrate, by way of the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits, if any, that (1) no genuine issues of material fact exist for trial, and (2) the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(e); Celotex Corp. v. Catrett, ___ U.S. ___, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Munson v. Friske, 754 F.2d 683 (7th Cir.1985). If the motion's opponent would bear the burden of proof at trial on the matter that forms the basis of the summary judgment motion, the burden of proof shifts to the motion's opponent if the movant makes its initial showing, and the motion's opponent must come forth and produce affidavits, depositions, or other admissible documentation to show what facts are actually in dispute. Celotex Corp. v. Catrett, 106 S.Ct. at 2548; Klein v. Trustees of Indiana University, 766 F.2d 275, 283 (7th Cir.1985). Summary judgment should be granted only if no reasonable jury could return a verdict for the motion's opponent. Anderson v. Liberty Lobby, Inc., ___ U.S. ___, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Federal Deposit Ins. Corp. v. Meyer, 781 F.2d 1260 (7th Cir. 1986); Munson, 754 F.2d at 690; Weit v. Continental Illinois National Bank & Trust Co., 641 F.2d 457, 461 (7th Cir.1981), cert. denied 455 U.S. 988, 102 S.Ct. 1610, 71 L.Ed.2d 847 (1982).

When the parties do not dispute the factual basis of a motion for summary judgment, the reviewing court's only inquiry is whether judgment should issue as a matter of law. The burden of proof on this matter rests with the moving party.

When the parties dispute the facts, the parties must produce proper documentary evidence to support their contentions. The parties cannot rest on mere allegations in the pleadings, Posey v. Skyline Corp., 702 F.2d 102 (7th Cir.), cert. denied 464 U.S. 960, 104 S.Ct. 392, 78 L.Ed.2d 336 (1983); or upon conclusory statements in affidavits. First Commodity Traders v. Heinold Commodities, 766 F.2d 1007, 1011 (7th Cir.1983); Hall v. Printing and Graphics Art Union, 696 F.2d 494, 500 (7th Cir.1982). Any permissible reasonable inferences from the documentary evidence must be viewed in the light most favorable to the non-moving party. Matsushita Electronics Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970); United States v. Diebold, Inc., 369 U.S. 654, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962); Munson, 754 F.2d at 690; Mintz v. Mathers Fund, Inc., 463 F.2d 495, 498 (7th Cir.1972). A party need not try its case by affidavit, but it must set forth some facts from which the court can reasonably infer that the party would be able to produce some evidence at trial to support its theory. Matter of Morris Paint and Varnish Co., 773 F.2d 130 (7th Cir.1985).

The defendants' summary judgment motion must be addressed with these standards in mind.

(B)

Mike Keen and Gini Burns, who are Caucasian, were employed as "testers" by the South Bend Human Rights Commission. "Testers", for these purposes, are "individuals who, without an intent to rent or purchase a home or apartment, pose as renters or purchasers for the purpose of collecting evidence of unlawful steering practices". Havens Realty Corp. v. Coleman, 455 U.S. 363, 373, 102 S.Ct. 1114, 1121, 71 L.Ed.2d 214 (1982).

On September 19, 1984, plaintiff Abdul Nur, a black tester, went to the offices of the defendant Blake Development Corporation in South Bend, Indiana and inquired into the availability of apartments. The inquiry was directed to defendant Rudy Buechler, who told Mr. Nur that no rentals were available, but condominiums were available for sale.¹ Earlier that day, Mr. Keen had made a similar inquiry at Blake Development's office, and his inquiry was also directed to defendant Rudy Buechler, who told Mr. Keen that a one-bedroom apartment was available.²

On December 12, 1984, plaintiff Jackie Mitchell, a black tester, inquired at the Blake Development office into the availability of a one-bedroom apartment to rent. Defendant Becky Faulkner told Ms. Mitchell that the condominiums were no longer for rent, but could be purchased.³ Earlier that day, Ms. Burns inquired at Blake Development's office about renting a one-bedroom apartment; Ms. Faulkner told Ms. Burns no one-bedroom apartments were then available, but that the condominiums were available for sale. Expressing no interest in a condominium purchase, Ms. Burns pursued her inquiry about rentals and Ms. Faulkner stated that a one-bedroom apartment rental might be available within four to six months. Ms. Faulkner gave Ms. Burns an application, a floor plan, and a business card, and invited her to call back later.⁴ These are the facts upon which the plaintiffs base their cause of action.

Mr. Keen and Ms. Burns allege that Blake Development, by and through its agents Rudy Buechler and Becky Faulkner, engaged in discriminatory housing practices in violation of the Fair Housing Act, 42 U.S.C. § 3604, and the Civil Rights Act of 1866, 42 U.S.C. § 1982, and that those practices were willful and malicious. Mr. Keen and Ms. Burns do not allege that such practices were directed against them personally, but contend that:

They have suffered emotional distress, loss of personal esteem, humiliation, great embarrassment, and subjective pain and suffering upon discovering that other members of their own race were engaging in the prohibited discriminatory conduct because they strongly believe in equal opportunity for all ...

Complaint, paragraph 17. The affidavits of Mr. Keen and Ms. Burns, which affidavits were submitted in response to the defendants' motion, reiterate these allegations. No other injury has been alleged.

The defendants contend that Mr. Keen and Ms. Burns lack standing, either in their capacity as "testers" or as third-party plaintiffs, to bring an action under the Fair Housing Act or the Civil Rights Act of 1866, and that dismissal and/or summary judgment is therefore appropriate. The defendants have submitted the plaintiffs' depositions in support of their motion.

II.

Standing under 42 U.S.C. § 3612 was intended to extend to the full limits of Article III of the United States Constitution, and, accordingly, judicially-created prudential barriers to standing do not apply. Havens Realty Corp. v. Coleman, 455 U.S. 363, 372, 102 S.Ct. 1114, 1120, 71 L.Ed.2d 214 (1982); Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 103 n. 9, 99 S.Ct. 1601, 1609 n. 9, 60 L.Ed.2d 66 (1979). The constitutional limits to standing, however, remain the same: plaintiffs must allege a "distinct and palpable injury", Havens Realty Corp. v. Coleman, 455 U.S. at 372, 102 S.Ct. at 1121; Gladstone, Realtors v. Village of Bellwood, 441 U.S. at 100, 99 S.Ct. at 1608; Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 2206, 45 L.Ed.2d 343 (1975), that is "fairly traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the requested relief". Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 3324, 82 L.Ed.2d 556 (1984), citing Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982); see also Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 38, 41, 96 S.Ct. 1917, 1921, 1925, 48 L.Ed.2d 450 (1976).

The defendants' motion questions whether Mr. Keen and Ms. Burns have alleged sufficient facts to demonstrate a "distinct and palpable injury". An "abstract", "conjectural" or "hypothetical" injury will not suffice. Allen v. Wright, 468 U.S. at 751, 104 S.Ct. at 3324, citing Los Angeles v. Lyons, 461 U.S. 95, 101-02, 103 S.Ct. 1660, 1664-65, 75 L.Ed.2d 675 (1983); O'Shea v. Littleton, 414 U.S. 488, 494, 94 S.Ct. 669, 675, 38 L.Ed.2d 674 (1974).

In Trafficante v. Metropolitan Life Insurance Co., 409 U.S. 205, 93 S.Ct. 364, 34 L.Ed.2d 415 (1972), the Supreme Court established the right of a non-minority to initiate a suit under the Fair Housing Act, 42 U.S.C. § 3601 et seq. It is unclear from Mr. Keen and Ms. Burns' response to the summary judgment motion whether they assert standing in their capacities as "testers" or as third-party plaintiffs. These concepts have been distinguished as follows:

The concept of "neighborhood" standing differs from that of "tester" standing in that the injury asserted is an indirect one: an adverse impact on the neighborhood in which the plaintiff resides resulting from the steering of persons other than the plaintiff. By contrast, the injury underlying tester standing—the denial of the tester's own statutory right to truthful housing information caused by misrepresentations to the tester—is a direct one.

Havens Realty Corp. v. Coleman, 455 U.S. at 375, 102 S.Ct. at 1122 citing Duke Power Company v. Carolina Environmental Study Group, 438 U.S. 59, 80-81, 98 S.Ct. 2620, 2634, 57 L.Ed.2d 595 (1978). Mr. Keen and Ms....