Overlook Mut. Homes, Inc. v. Spencer, Case No. 3:07cv398.

• Citation: 666 F.Supp.2d 850
• Decision Date: 16 July 2009
• Docket Number: Case No. 3:07cv398.
• Parties: OVERLOOK MUTUAL HOMES, INC., Plaintiff, v. Vickie L. SPENCER, Defendant, and Joey Spencer, Counterclaim-Plaintiff.
• Court: U.S. District Court — Southern District of Ohio

666 F.Supp.2d 850

OVERLOOK MUTUAL HOMES, INC., Plaintiff, v. Vickie L. SPENCER, Defendant, and Joey Spencer, Counterclaim-Plaintiff.

Case No. 3:07cv398.

United States District Court, S.D. Ohio, Western Division.

July 16, 2009.

Edward Michael Smith, Nolan, Sprowl, Foley and Smith, Gordon Dale Arnold, Freund Freeze & Arnold, John Randolph Folkerth, Jr., Weprin Folkerth & Routh LLC, Dayton, OH, for Plaintiff.

Michael Allen, Relman & Dane PLLC, Washington, DC, Stephen M. Dane, Relman & Dane PLLC, Perrysburg, OH, for Defendant.

DECISION AND ENTRY OVERRULING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT (DOC. # 32)

WALTER HERBERT RICE, District Judge.

This litigation arises out of the efforts of Vickie and Joey Spencer (collectively the "Spencers") to keep a dog in their dwelling at the residences managed by Plaintiff Overlook Mutual Homes, Inc. ("Overlook").¹ Overlook is a mutual housing corporation, which is operated by its members, all of whom are residents living at the property owned by Overlook. The members operate Overlook through an elected Board of Trustees ("Board"), which is authorized to adopt rules and regulations. One of those rules, the no pet rule, prohibits members/residents from having pets, except for service animals which are necessary to accommodate a resident's disability.

In April, 2007, after other residents had complained about the noise made by a barking dog in the Spencer's dwelling, Overlook provided written warning to them that they were with violating the no pet rule.² In response, Vickie Spencer submitted an affidavit, stating that the dog had been permanently removed. Subsequently, however, she visited the Miami Valley Fair Housing Center ("MVFHC"), which resulted in its President, Jim McCarthy ("McCarthy"), writing a letter to Overlook, under date of August 1, 2007. Therein, McCarthy requested a reasonable accommodation on behalf of the Spencers, to permit Lynsey to keep Scooby. McCarthy explained that Lynsey was currently receiving psychological counseling and that her psychologist had recommended that Lynsey have a companion/service dog to facilitate her treatment. McCarthy also enclosed a statement from Miriam Hoefflin ("Hoefflin"), Lynsey's treating psychologist, indicating that, as a result of her assessment and counseling of Lynsey, she had recommended that the child "have a service dog to facilitate treatment."

John Folkerth ("Folkerth"), an attorney representing Overlook in this litigation, responded to McCarthy's letter. In particular, Folkerth set forth therein his reasons for being skeptical of Vickie Spencer's assertion that her daughter needed to keep the dog as a service animal. He also indicated that, if Lynsey was disabled and in need of a service animal, Overlook would be willing to engage in a dialogue to determine whether a reasonable accommodation could be provided. In addition, Folkerth stated that Vickie Spencer would be required to fill out a form, seeking a waiver of the no pet rule and requested all manner of information concerning Lynsey's asserted disability and need for the dog as a service animal. He requested that the information be provided in two weeks and that, in the meantime, Overlook would refrain from initiating eviction proceedings against the Spencers. Thereafter, Vickie Spencer filled out an Overlook request for accommodation form, asserting that the dog was necessary to ameliorate her daughter's disability, which she described as anxiety disorder and neurological and emotional conditions. McCarthy also provided some additional information concerning Lynsey's disability and her need for the dog as a reasonable accommodation.

On September 10, 2007, Folkerth wrote back to McCarthy, indicating that the information McCarthy had provided was not sufficient to permit Overlook's Trustees to determine whether Lynsey was disabled as defined by law and whether the accommodation requested was appropriate or necessary. Folkerth also included releases for Lynsey's medical and psychological records maintained by Hoefflin. In addition, he stated that, depending upon the content of the released records, additional information could be required and cautioned that if signed releases were not returned, the Trustees would file suit to obtain those records. On September 25, 2007, Michael Allen ("Allen"), the attorney representing the Spencers in this litigation, wrote to Folkerth in response, explaining that he had been retained by Vickie Spencer and the MVFHC in the matter of the request for a reasonable accommodation on behalf of Lynsey and that, while concerned about the failure of Overlook to grant same, he was most disturbed by the invasiveness of the inquiry into her medical records, which Folkerth had proposed. To bridge their differences, Allen suggested that he and Folkerth conduct a conference call with Hoefflin, during which Folkerth could ask the treating psychologist questions about why the dog was necessary to afford Lynsey the equal opportunity of enjoying the Spencers' unit at Overlook. Allen also indicated that Hoefflin would be on vacation and could not participate in a conference call until October 10, 2007, and that he would be available for such a conference call during the afternoons of October 10th, 11th and 12th. There is no evidence that the conference call proposed by Allen ever took place.³ Overlook initiated this litigation on October 17, 2007.

In its Complaint against Vickie Spencer, Overlook requests that this Court enter relief, declaring the following, to wit: 1) that it must be provided with the medical and counseling records maintained by Hoefflin, in order to permit it to determine whether Lynsey is disabled within the meaning of the law; 2) that its request for records maintained by Hoefflin is not in violation of federal or state law prohibiting housing discrimination; 3) that, upon Vickie Spencer's failure to provide those records, it was not obligated to waive its no pet rule and could enforce same; and 4) that the dog, Scooby, is not a service animal as defined by law and does not qualify as a reasonable accommodation for purposes of waiving its no pet rule. Doc. # 1 at 7.

Vickie Spencer, joined by her husband Joey, responded to Overlook's Complaint, by, inter alia, asserting a Counterclaim. See Doc. # 3. In that pleading, the Spencers have set forth the following claims for relief, to wit: 1) a claim that Overlook has violated the Fair Housing Act ("FHA"), 42 U.S.C. § 3601, et seq., by enforcing the no pet rule and failing to make a reasonable accommodation of that rule;⁴ 2) a claim under Ohio's fair housing statute, § 4112.02(H) of the Ohio Revised Code, setting forth similar allegations against Overlook, and, in addition, alleging the making of impermissible inquiries on the basis of disability and coercing, intimidating and interfering with the Spencers because of their advocacy of disability rights; and 3) a claim of negligence under the common law of Ohio. Doe. # 3 at ¶¶ 46-56. The Spencers request injunctive relief; compensatory, statutory and punitive damages; and costs, including reasonable attorney's fees. Id. at 18.

This case is now before the Court on Overlook's Motion for Summary Judgment (Doc. # 32).⁵ As a means of analysis, the Court will initially set forth the procedural standards it must apply whenever it rules on a motion for summary judgment, following which it will turn to the parties' arguments in support of and in opposition to the instant such motion.

Summary judgment must be entered "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Of course, the moving party:

always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact.

Id. at 323, 106 S.Ct. 2548. See also Boretti v. Wiscomb, 930 F.2d 1150, 1156 (6th Cir. 1991) (The moving party has the "burden of showing that the pleadings, depositions, answers to interrogatories, admissions and affidavits in the record, construed favorably to the nonmoving party, do not raise a genuine issue of material fact for trial.") (quoting Gutierrez v. Lynch, 826 F.2d 1534, 1536 (6th Cir.1987)). The burden then shifts to the nonmoving party who "must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (quoting Fed.R.Civ.P. 56(e)). Thus, "[o]nce the moving party has met its initial burden, the nonmoving party must present evidence that creates a genuine issue of material fact making it necessary to resolve the difference at trial." Talley v. Bravo Pitino Restaurant, Ltd., 61 F.3d 1241, 1245 (6th Cir.1995). Read together, Liberty Lobby and Celotex stand for the proposition that a party may move for summary judgment by demonstrating that the opposing party will not be able to produce sufficient evidence at trial to withstand a directed verdict motion (now known as a motion for judgment as a matter of law. Fed.R.Civ.P. 50). Street v. J.C. Bradford & Co., 886 F.2d 1472, 1478 (6th Cir.1989).

Once the burden of production has so shifted, the party opposing summary judgment cannot rest on its pleadings or merely reassert its previous allegations. It is not sufficient to "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, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). See also Michigan Protection and Advocacy Service, Inc. v. Babin, 18 F.3d 337, 341 (6th Cir.1994) ("The plaintiff...