Rogers v. 66-36 YELLOWSTONE BLVD. CO-OP. OWNERS
Decision Date | 09 October 1984 |
Docket Number | No. 82 CV 1341 (ERN).,82 CV 1341 (ERN). |
Citation | 599 F. Supp. 79 |
Parties | Bertha M. ROGERS, Plaintiff, v. 66-36 YELLOWSTONE BLVD. COOPERATIVE OWNERS, INC., Defendant. |
Court | U.S. District Court — Eastern District of New York |
Jose A. Rivera, Brooklyn, N.Y., for plaintiff.
Deegan, Scibilia & Reardon by Joseph C. Scibilia, Alan J. Reardon, Hempstead, for defendant.
Plaintiff Bertha Rogers, a black teacher, sued defendant 66-36 Yellowstone Blvd. Cooperative Owners, Inc. ("Yellowstone"), an apartment cooperative, under the Civil Rights Act of 1866, 42 U.S.C. §§ 1981-82 (one claim), and the Fair Housing Act of 1968, 42 U.S.C. § 3612. Specifically, Mrs. Rogers charged Yellowstone with racial discrimination in disapproving her attempted apartment purchase.1 On January 26, 1984, a jury returned a verdict for Mrs. Rogers on both statutory claims, awarding $25,000 in compensatory damages and $1,000 in punitive damages.2
That verdict had solid record support. Though circumstantial, the evidence of discrimination was compelling. While having greater than a $500,000 net worth, Mrs. Rogers' proposed purchase of a $49,250 apartment was rejected purportedly because she did not meet Yellowstone's financial criteria. Defendant, in particular, was allegedly concerned with the "source" of plaintiff's wealth, i.e., how could she—on a teacher's pay—accumulate such assets.
Although Yellowstone's supposed skepticism was unallayed by Mrs. Rogers' explanations (e.g., she bought real estate when prices and interest rates were low), the jury was satisfied as demonstrated by its answers to the Special Verdict Form. In the same way, the jury manifested its disbelief in Yellowstone's account. For instance, despite Yellowstone's given reason for disapproving the application and concomitant assertion that Mrs. Rogers' race played no part in that decision, the jury determined that "a motivating reason for defendant's refusal was the race of plaintiff." Special Verdict Form, §§ 1981-82, Interrogatory # 3.
Having itself heard the witnesses' testimony and assessed their credibility, the Court views that finding along with the verdict as a whole to be consistent with the evidence. From those prefatory remarks, the Court turns to the remaining issues.
While not having yet moved, plaintiff's counsel stated at the trial's close and in a later conference that he would request attorney's fees. Given the absence of a formal motion, the Court will not now rule on that matter. However, having surveyed the law, the Court has discerned a threshold question that must be resolved.
Plaintiff, as noted, prevailed on both her §§ 1981-82 and 3612 claims, each of which has related statutory provisions concerning attorney's fees. For §§ 1981-82, § 1988 also of Title 42 allows:
"In any action ... to enforce a provision of sections 1981, 1982 ..., the court ... may allow the prevailing party ... a reasonable attorney's fee ...."
For § 3612, its subsect. (c) states:
"The court ... may award ... reasonable attorney's fees in the case of a prevailing plaintiff: Provided, That the ... plaintiff in the opinion of the court is not financially able to assume ... attorney's fees."
(Emphasis in original.)
As is obvious from its emphasized proviso, § 3612(c) presents a narrow avenue to attorney's fees recovery. And, due to her net worth, Mrs. Rogers could likely bear prosecuting expenses, thereby barring § 3612(c) compensation.
Just as obviously, however, § 1988 does not contain § 3612(c)'s restrictive language. Moreover, at least two circuits marking the difference between those statutes have expressly held that, even though precluded in § 3612(c), recovery may be had via § 1988 —when, as here, a plaintiff wins under both §§ 1981-82 and 3612.
The Fifth Circuit in Woods-Drake v. Lundy, 667 F.2d 1198, 1204 (5th Cir.1982), said:
Similarly, the Sixth Circuit in Price v. Pelka, 690 F.2d 98, 100 (6th Cir.1982), concluded:
Cf. Wharton v. Knefel, 562 F.2d 550, 556 & n. 30 (8th Cir.1977) .
So, based on the caselaw from other circuits, attorney's fees would appear to be available in this action. See generally Dugan, Civil Rights and Freedom of Contract: Employment, Housing and Credit Transactions, 27 S.D.L.Rev. 181, 192 n. 110 (1982) () ("Dugan").
Yet, the Second Circuit has not addressed the facial disparity between the two statutory recovery schemes. Cf. Fort v. White, 530 F.2d 1113, 1117-19 (2d Cir. 1976) .
Necessarily, the parties here should have the opportunity to present their positions on that issue, which remains at least arguably open in this jurisdiction. Therefore, they are directed to discuss in memoranda whether attorney's fees are available in this case and, if so, whether reimbursement should be granted. Plaintiff also is to submit the amount sought supported by accompanying itemization. Defendant, of course, may challenge that figure and its underlying cost breakdown.
Plaintiff's papers are due on October 19, 1984. Defendant will respond by October 29, 1984.
Plaintiff has formally sought an injunction. Both sides have submitted briefs on the fittingness of that equitable remedy. Also, plaintiff has tendered a proposed order delineating the specific relief desired, to which defendant has responded by objecting to some terms and agreeing to others (should the Court deem an injunction merited).
The statutes upon which Mrs. Rogers has prevailed permit injunctive relief. Though not literally, the Civil Rights Act of 1866 has been so construed. In Jones v. Alfred H. Mayer Co., 392 U.S. 409, 414 n. 13, 88 S.Ct. 2186, 2189 n. 13, 20 L.Ed.2d 1189 (1968), the Supreme Court commented:
"The fact that 42 U.S.C. § 1982 is couched in declaratory terms and provides no explicit method of enforcement does not ... prevent a federal court from fashioning an effective equitable remedy."
See, e.g., Gore v. Turner, 563 F.2d 159, 162-63 (5th Cir.1977) () .
Under the Fair Housing Act, a court is plainly empowered to enter an injunction by 42 U.S.C. § 3612(c):
"The court may grant ... any permanent or temporary injunction ...."
Without disputing that an injunction can be mandated, Yellowstone's primary position is that it should not be, since liability was incurred for but a single incident. See J. Kushner, Fair Housing, at 548 (1982) () (footnotes omitted) ("Kushner").
Even so, extensive discrimination as evinced by a pattern and practice or class certification is not an essential foundation to support an injunction. On that point, the Fourth Circuit in United States v. Hunter, 459 F.2d 205, 218 n. 17 (4th Cir. 1972), cert. denied, 409 U.S. 934, 93 S.Ct. 235, 34 L.Ed.2d 189 (1972), observed:
Later, that same tribunal in Sandford v. Coleman Realty, 573 F.2d 173, 178-79 (4th Cir.1978), stated:
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