U.S. v. Edward Rose & Sons

• Decision Date: 21 February 2003
• Docket Number: No. 02-73518.,02-73518.
• Citation: 246 F.Supp.2d 744
• Parties: UNITED STATES of America, Plaintiff, v. EDWARD ROSE & SONS, et al, Defendants.
• Court: U.S. District Court — Eastern District of Michigan

246 F.Supp.2d 744

UNITED STATES of America, Plaintiff, v. EDWARD ROSE & SONS, et al, Defendants.

No. 02-73518.

United States District Court, E.D. Michigan, Southern Division.

February 21, 2003.

COPYRIGHT MATERIAL OMITTED

Pamela J. Thompson, Judith E. Levy, U.S. Attorney's Office, Detroit, MI, for Plaintiff.

Frederick M. Baker, Jr., Honigman, Miller, Lansing MI, Robert M. Jackson, Honigman, Miller, Bingham Farms, MI, Andrew Sandler, Skadden, Arps, Washington, DC, Patrick T. Duerr, Honigman, Miller, Detroit, MI, Kevin J. Gleeson, Sheri B. Cataldo, Sullivan, Ward, Southfield, MI, for Defendants.

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION; DENYING DEFENDANTS' MOTION TO TRANSFER; AND, GRANTING PLAINTIFF'S MOTION FOR LEAVE TO FILE AMENDED COMPLAINT

ROBERTS, District Judge.

I. INTRODUCTION

This matter is before the Court on Plaintiffs Motion for Leave to File an Amended Complaint and for Entry of a Preliminary Injunction, and Defendant's Motion to Transfer. For the reasons stated below, the Court GRANTS Plaintiffs Motion for Leave to File an Amended Complaint, GRANTS in part and DENIES in part Plaintiffs Motion for Preliminary Injunction, and DENIES Defendants' Motion to Transfer.

II. BACKGROUND

Plaintiff, the United States of America (the "Government"), has filed this action alleging that Defendants' construction of 14 apartment complexes in Michigan, Wisconsin, Ohio and Illinois violates the Fair Housing Act, Title VIII of the Civil Rights Act of 1968, as amended by the Fair Housing Amendments Act of 1968(FHA), 42 U.S.C. §§ 3601-3619, and Title III of the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12181-12189.¹ Plaintiff specifically alleges that the "primary entrances" of certain apartment units in the complexes are constructed or will be constructed in a manner that renders those units inaccessible to persons with disabilities, all in violation of the requirements of 42 U.S.C. § 3604(f)(3)(C).

The units at issue are ground floor apartments which have two exterior entrances—a front door and a rear patio door. The front entrance to these units is typically situated in proximity to the parking lot (approximately 40 feet). In order to enter these units, one must descend a half flight of stairs. The patio entrance does not require the occupant or guest to traverse any steps. However, Plaintiff argues that this entrance is located anywhere from 100-430 feet from the nearest parking space.

Plaintiff contends that the placement of steps at the front door, the "primary entrance," renders the front entrance inaccessible ²

under the FHA to those in wheelchairs or who otherwise have mobility challenges. But, Defendants assert that the rear patio entrance can be utilized as the "primary entrance" and, because the patio entrance is accessible as required by the FHA, it satisfies their obligation to provide one accessible entrance.

Plaintiff asks the Court to: 1) declare that the FHA requires that dwellings that are subject to the accessibility requirements of the FHA, i.e. "covered dwellings," have an accessible "primary entrance" and that the design contemplated by the Rose Defendants violates the Act; and, 2) enjoin the Rose Defendants from taking any further action to secure buildings, occupancy or other permits for, or to otherwise construct or occupy, buildings 6-15 at Lake Pointe Apartments in Batavia, Ohio; or buildings 7-13 at Westlake Apartments in Belleville, Michigan which have inaccessible primary entrances, until such time as the Court can determine an appropriate remedy or the parties can conduct discovery and come to an agreement regarding an alternative design and/or modifications which would bring the units into compliance with the FHA.

Plaintiff further seeks to enjoin Defendants entirely from occupying (leasing) the covered and non-covered units³ in buildings 4 and 5 at Lake Pointe and 11-13 at Westlake. Plaintiff contends that enjoining occupancy entirely would enable Plaintiff to have its experts examine the buildings and explore possible modifications in the least disruptive way.

In addition to its request for a preliminary injunction, Plaintiff seeks to add an additional architect defendant, Alexander V. Bogaerts & Associates, PC, and nine more complexes which allegedly fail to comply with the FHA in the same manner as those listed in Plaintiffs original complaint.

Prior to the filing of this action, Plaintiff filed an action in the United States District Court for the Northern District of Indiana alleging violations of the FHA by two Rose companies at four properties.⁴ Plaintiff later amended that complaint to add four additional Rose companies, three architectural firms and ten allegedly non-compliant properties.

There is no question that this Court has both subject matter and personal jurisdiction over all Defendants in this case. However, because of the convenience that would result from litigating this case in one forum, Defendants request that the Court transfer this action to the Northern District of Indiana, pursuant to 28 U.S.C. § 1404(a).

Plaintiff objects to transfer, asserting that the Northern District of Indiana does not have personal jurisdiction over two of the architect Defendants, Saule and Peterson, because neither has done business in Indiana, nor were they involved in the design of the complexes at issue in that action. Saule and Peterson, however, have offered to consent to jurisdiction in Indiana. Plaintiff has rejected their offer. Furthermore, Defendants provided affidavits from Saule and Peterson in which each attests that his work on the complexes at issue was done entirely within the scope of employment with SSOE, Inc, and that neither contracted directly with any of the Rose companies. Both Saule and Peterson also assert that SSOE regularly does business in Indiana. However, neither indicates that he has direct ties that would subject him to personal jurisdiction in Indiana.

Plaintiff also asserts that there is no evidence that several other Defendants named in this suit were involved in developing any of the properties at issue in the Indiana action. For that reason, Plaintiff contends that those Defendants are not likely subject to personal jurisdiction in Indiana. Namely, Plaintiff is referring to Edward Rose & Sons (partnership); Edward Rose Realty, Inc; Edward Rose Properties, Inc; Occidental Development, LLC; Huron Development, LP; and Green Ridge, LP. Defendants dispute Plaintiffs claim with regard to 5 of these Defendants because they are Rose entities and, in the Indiana action, Plaintiff seeks injunctive relief from other Rose entities and "all other person [sic] in active concert or participation with any of them." Per Defendants, they have never claimed that the Indiana Court lacks jurisdiction over any Rose entity.

Alternatively, Defendants ask the Court to sever the claims against Saule and Peterson and transfer the balance of claims and Defendants to Indiana. Plaintiff objects to severance as well, on the ground that the claims against Saule and Peterson are inextricably bound with the claims against the Rose Defendants.

III. ANALYSIS

A. PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION

In the Sixth Circuit, when determining whether to issue a preliminary injunction, the court must typically consider four factors:

(1) the likelihood that the party seeking the preliminary injunction will succeed on the merits of the claim; (2) whether the party seeking the injunction will suffer irreparable harm without the grant of the extraordinary relief; (3) the probability that granting the injunction will cause substantial harm to others; and (4) whether the public interest is advanced by the issuance of the injunction.

Washington v. Reno, 35 F.3d 1093, 1099 (6th Cir.1994).

Considering these factors, the Court is to balance each factor against the other to arrive at its ultimate determination. Leary v. Daeschner, 228 F.3d 729, 736 (6th Cir.2000).

i. Likelihood of Success

Congress amended the FHA in 1988 to prohibit discrimination based on disability. 42 U.S.C. § 3604(f) specifically states that it is unlawful:

(f)(1) To discriminate in the sale or rental, or to otherwise make unavailable or deny, a dwelling to any buyer or renter because of a handicap of—

(A) that buyer or renter....

(2) To discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection with such dwelling, because of a handicap of—

(A) that person ....

The FHA also requires that ground floor units in multifamily dwellings, built for first occupancy after March 13, 1991, meet minimum design and construction requirements. Under 42 U.S.C. § 3604(f)(3)(C), it is unlawful to fail to design and construct covered dwellings such that:

(i) the public use and common use portions of such dwellings are readily accessible to and usable by handicapped persons;

(ii) all the doors designed to allow passage into and within all premises within such dwellings are sufficiently wide to allow passage by handicapped persons in wheelchairs; and

(iii) all premises within such dwellings contain the following features of adaptive design:

(I) an accessible route into and through the dwelling;

(II) light switches, electrical outlets, thermostats, and other environmental controls in accessible locations;

(III) reinforcements in bathroom walls to allow later installation of grab bars; and

(IV) usable kitchens and bathrooms such that an individual in a wheelchair can maneuver about the space.

The FHA expressly authorizes a court to award injunctive relief to remedy violations of the Act:

(a) Pattern or practice cases Whenever the Attorney General has reasonable cause to believe that any person or group of persons is engaged in a pattern or practice of resistance to the full enjoyment of any of the rights granted by this subchapter, or that...