US v. Sea Winds of Marco, Inc., 94-366-CIV-FTM-17D.

• Decision Date: 07 July 1995
• Docket Number: No. 94-366-CIV-FTM-17D.,94-366-CIV-FTM-17D.
• Citation: 893 F. Supp. 1051
• Parties: UNITED STATES of America, Plaintiff, v. SEA WINDS OF MARCO, INC., Jayne Averill, Bernard Foehl, Defendants.
• Court: U.S. District Court — Middle District of Florida

893 F. Supp. 1051

UNITED STATES of America, Plaintiff, v. SEA WINDS OF MARCO, INC., Jayne Averill, Bernard Foehl, Defendants.

No. 94-366-CIV-FTM-17D.

United States District Court, M.D. Florida, Fort Myers Division.

July 7, 1995.

COPYRIGHT MATERIAL OMITTED

Patricia A. Kerwin, U.S. Attys. Office, M.D. Fla., Tampa, FL, for plaintiff.

Kimberly Ann Ashby, Maguire, Voorhis & Wells, P.A., Orlando, FL, Kathleen M. Burgener, Becker & Poliakoff, P.A., Fort Lauderdale, FL, Daniel S. Rosenbaum, Becker & Poliakoff, P.A., West Palm Beach, FL, for defendants.

ORDER ON MOTION TO DISMISS/MOTION TO STRIKE

KOVACHEVICH, District Judge.

This cause is before the Court on Defendants' Motion to Dismiss/Motion to Strike (Docket Nos. 4-5) and response thereto (Docket Nos. 12-13). Upon consideration of the motions and memoranda of the parties, this Court finds that the Defendants' motions must be granted in part and denied in part.

I. BACKGROUND

This action concerns alleged violations of the Fair Housing Act, 42 U.S.C. § 3601 et seq. In August 1993, October 1993, and June 1994, the U.S. Department of Housing and Urban Development ("HUD") received a number of complaints against the Defendants, SEA WINDS OF MARCO, INC. ("Sea Winds"), JAYNE AVERILL, and BERNARD FOEHL. The complaints alleged discriminatory housing practices against Hispanic individuals renting condominiums at Sea Winds. The Secretary of HUD investigated the charges and found reasonable cause to believe that discrimination had occurred. On September 30, 1994, the Secretary issued a Charge of Discrimination as required under 42 U.S.C. § 3610(g)(2)(A).

One complainant, Alfonse Bottino, elected judicial determination of the charge under 42 U.S.C. § 3612(a), rather than an administrative hearing. Pursuant to 42 U.S.C. § 3612(o), the Plaintiff, UNITED STATES OF AMERICA ("United States"), filed suit against the Defendants on November 17, 1994, alleging violations of the Fair Housing Act. Plaintiff brought this action on behalf of all the complainants referred to above.

In its complaint, the Plaintiff states that the Defendants violated 42 U.S.C. § 3604(b) by discriminating against certain individuals, who rent units at Sea Winds of Marco Condominium, on the basis of national origin. (Compl., ¶ 17) The statute proscribes discrimination "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 therewith, because of race, color, religion, sex, familial status, or national origin." The discriminatory acts alleged included requiring Hispanic renters to wear identification wrist bands, excessively monitoring those renters' activities, and making derogatory remarks toward Hispanics. (Compl., ¶¶ 16, 17)

In addition, the Plaintiff's complaint alleges that the Defendants violated 42 U.S.C. § 3617 by committing the discriminatory acts listed above. (Compl., ¶ 17) Section 3617 states: "it shall be unlawful to coerce, intimidate, threaten, or interfere with any person in the exercise or enjoyment of, or on account of his having exercised or enjoyed, or on account of his having aided or encouraged any other person in the exercise or enjoyment of, any right granted or protected by section 3603, 3604, 3605, or 3606 of this title."

Defendants responded to the complaint by filing a Motion to Dismiss/Motion to Strike and supporting memorandum of law, asserting that: (1) this Court lacks subject matter jurisdiction over the action because HUD failed to comply with the procedural requirements in 42 U.S.C. § 3610(a) and (b); (2) the complaint fails to specify discriminatory acts by the individual named defendants which would subject them to liability for compensatory or punitive damages; (3) the complaint fails to state a claim upon which this Court can grant injunctive relief because it does not allege that the aggrieved individuals have no adequate remedy at law, or that they would suffer irreparable harm without such relief; and (4) the complaint fails to state a claim upon which to award punitive damages in that no specific discriminatory acts were alleged which evidence willful violation of the Fair Housing Act.

II. DISCUSSION

A. Motion to Dismiss for Lack of Subject Matter Jurisdiction

Attacks on subject matter jurisdiction under Rule 12(b)(1), Fed.R.Civ.P. may be either "facial" or "factual". "Facial attacks" require a court to examine the face of a complaint to determine whether it alleges a basis for subject matter jurisdiction. First Union National Bank of Florida v. North Beach Professional Office Complex, Inc., 841 F.Supp. 399, 402 (M.D.Fla.1993) (citing Lawrence v. Dunbar, 919 F.2d 1525, 1528-29 (11th Cir.1990)). "Factual attacks" reach beyond the complaint to challenge subject matter jurisdiction in fact, and a court may consider "`matters outside the pleadings, such as testimony and affidavits.'" Bowman v. U.S., 848 F.Supp. 979, 982 (M.D.Fla.1994) (quoting Lawrence v. Dunbar, 919 F.2d at 1528 (quoting Williamson v. Tucker, 645 F.2d 404, 412 (5th Cir.) cert. denied 454 U.S. 897, 102 S.Ct. 396, 70 L.Ed.2d 212 (1981))).

The Defendants in the instant case make factual assertions regarding HUD's non-compliance with certain procedural requirements of the Fair Housing Act. Defendants argue first that HUD neither completed its investigation within 100 days after receiving the complaints against the Defendants, nor notified the Defendants of any inability to complete the investigation within that period.¹ Second, the Defendants assert that HUD failed to engage in good faith conciliation.² Such procedural deficiencies, the Defendants conclude, deny this Court subject matter jurisdiction over the action. Since the Defendants make a "factual attack" on subject matter jurisdiction, this Court may look beyond the pleadings to determine whether jurisdiction exists. However, the Court finds it unnecessary to do so because the weight of relevant authority is contrary to the Defendants' position.

Defendants rely on U.S. v. Aspen Square Management Co., Inc., 817 F.Supp. 707 (N.D.Ill.1993), vacated and dismissed June 28, 1993. In that case, the court held that it lacked subject matter jurisdiction over an action brought by the United States under the Fair Housing Act, due to procedural violations similar to those alleged by the Defendants in the instant case. However, as the Plaintiff points out, the same court later disagreed with the holding in Aspen and held that the 100-day period of § 3610 is neither a jurisdictional bar nor a statute of limitations. U.S. v. Beethoven Associates Limited Partnership, 843 F.Supp. 1257, 1264 (N.D.Ill. 1994). The court was persuaded by case law in a number of jurisdictions indicating general agreement that the 100-day period is not mandatory and does not affect a court's jurisdiction. See, e.g., Baumgardner v. HUD, 960 F.2d 572 (6th Cir.1992); U.S. v. Forest Dale, Inc., 818 F.Supp. 954 (N.D.Tex.1993); U.S. v. Curlee, 792 F.Supp. 699 (C.D.Cal.1992); U.S. v. Scott, 788 F.Supp. 1555 (D.Kan.1992). The cases further indicate that other procedural violations, such as failure to notify defendants of HUD's need for additional time to investigate complaints, are not necessarily detrimental to subsequent actions to enforce the Fair Housing Act. HUD's failure to engage in good faith conciliation is likewise not a jurisdictional issue. Instead, a court examines conciliation efforts when deciding whether to stay the proceedings to allow further conciliation, or upon reviewing any penalty that may have been imposed. Morgan v. Secretary of HUD, 985 F.2d 1451, 1456-1457 (10th Cir.1993).

This Court makes no factual finding regarding the alleged procedural violations. However, absent mandatory precedent in the Eleventh Circuit Court of Appeals, this Court is persuaded that procedural violations such as those alleged by the Defendants do not raise a jurisdictional issue. Accordingly, this action to enforce the Fair Housing Act may not be dismissed for lack of subject matter jurisdiction due to HUD's alleged procedural violations of 42 U.S.C. § 3610 regarding the 100-day investigation period, notification of delay, or good faith conciliation.

B. Motion to Dismiss for Failure to State a Claim

A court should not dismiss a complaint for failure to state a claim unless it appears beyond a doubt that the plaintiff can prove no set of facts that would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957). In addition, when considering a motion to dismiss, a court must consider the plaintiff's allegations as true. Cruz v. Beto, 405 U.S. 319, 92 S.Ct. 1079, 31 L.Ed.2d 263 (1972).

Defendants argue that the complaint fails to specify discriminatory acts by the individual named defendants which would subject them to liability for compensatory or punitive damages. However, Rule 8(a), Fed. R.Civ.P. requires only "a short and plain statement of the claim showing that the pleader is entitled to relief." The complaint at issue states that Sea Winds instituted a policy requiring identification wristbands to be worn by unit renters during certain times of the year. It alleges that this policy was enforced by Defendants Jayne Averill and Bernard Foehl, in consultation with the condominium association board, only against Hispanic renters. The complaint alleges further that the activities of the Hispanic renters were selectively monitored, and that derogatory remarks were made toward these individuals. Section 3604(b) prohibits discrimination on the basis of national origin "in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith." Taking the Plaintiff's allegations as true, this Court finds that the Plaintiff has sufficiently stated a valid claim under § 3604(b), pursuant to Rule 8(a), on behalf of all aggrieved persons named in the complaint.

The complaint...