Zhu v. Fisher, Cavanaugh, Smith & Lemon, P.A., CIV.A. 00-2329-KHV.

• Decision Date: 07 February 2001
• Docket Number: No. CIV.A. 00-2329-KHV.,CIV.A. 00-2329-KHV.
• Parties: Xiangyuan (Sue) ZHU, Plaintiff, v. FISHER, CAVANAUGH, SMITH & LEMON, P.A. & Thomas G. Lemon, Defendants.
• Court: U.S. District Court — District of Kansas

Page 1254

151 F.Supp.2d 1254

Xiangyuan (Sue) ZHU, Plaintiff, v. FISHER, CAVANAUGH, SMITH & LEMON, P.A. & Thomas G. Lemon, Defendants.

No. CIV.A. 00-2329-KHV.

United States District Court, D. Kansas.

February 7, 2001.

Xiangyuan (Sue) Zhu, Topeka, KS, pro se.

Stephen W. Cavanaugh, Thomas G. Lemon, Fisher, Cavanaugh, Smith & Lemon, P.A., Topeka, KS, for defendants.

MEMORANDUM AND ORDER

VRATIL, District Judge.

Plaintiff Xiangyuan (Sue) Zhu filed this action pro se on July 7, 2000, claiming that defendants violated 42 U.S.C. §§ 1982 and 1983 by discriminating against her on the basis of race, sex, national origin and familial status and that defendants engaged in threatening conduct, coercion, interference, intimidation, harassment and conspiracy in violation of the Fair Housing Act ("FHA"). Plaintiff also appears to assert a state law defamation claim. On September 26, 2000, this Court granted defendants' unopposed motion to dismiss and entered judgment for defendants. See Docs. # 5, 6. This matter comes before the Court on plaintiff's Motion For Reconsideration Or, Alternatively, Notice of Appeal (Doc. # 7) filed October 3, 2000, which the Court construes as a motion to alter or amend judgment,¹ and plaintiff's Motion To Consolidate (Doc. # 12) filed January 21, 2001. For reasons set forth below, the Court finds that plaintiff's motion to alter or amend should be overruled, that plaintiff's state law defamation claim should be dismissed without prejudice and that plaintiff's motion to consolidate should be overruled as moot.

Facts

On April 28, 2000², plaintiff, a first time home buyer, filed a complaint under the Federal Fair Housing Act, 42 U.S.C. §§ 3601-3610. The complaint alleged that Countrywide Realty Company, Inc. and Marc E. Bunting of Countrywide Realty discriminated against her on the basis of her national origin and sex by failing to correct defects in a house that she apparently had purchased from Countrywide. Plaintiff alleged that Bunting threatened and intimidated her, sexually harassed and assaulted her, and raped her.³

On May 12, 2000, defendant Thomas G. Lemon, an attorney, sent plaintiff a letter on the stationary of defendant law firm, Fisher, Cavanaugh, Smith and Lemon, P.A. The letter stated as follows:

Be advised that our firm represents Marc Bunting, Bunting Appraisal Services and Bunting Real Estate Services. All further contact with Mr. Bunting or his businesses should be directed to our attention.

Mr. Bunting informs me that you have engaged in a two year practice of stalking, criminal trespass and telephone harassment against he [sic] and his businesses. Any additional furtherance of this behavior will result in a request that criminal charges be filed against you. Be advised that we are very serious about this and will take all legal measures necessary to ensure that your behavior is stopped.

If you contact either Mr. Bunting or his family by phone, it will be considered telephone harassment. The police will be contacted and it will be requested that prosecution be commenced. If you enter onto or into any property owned, leased or otherwise legally occupied by Mr. Bunting or his family, the police will be called it and it will be requested that you be prosecuted for criminal trespass. Mr. Bunting only wishes for you to leave he [sic] and his family alone. If you will simply cease your harassment, all involved will be free to go about their lives. If not, Mr. Bunting does not intend to allow you the pleasure of continuing with this conduct. Legal action will be taken and taken swiftly. I trust that the above will result in you ceasing your unlawful behavior.

Complaint, Doc. # 1, Attachment. On May 19, 2000, Lemon on Bunting's behalf filed a petition for permanent restraining order against plaintiff in the District Court of Shawnee County, Kansas.

Plaintiff alleges that in sending the letter and filing the petition for a restraining order, defendants violated her rights "under 42 U.S.C. §§ 1982 and 1983, and Civil Rights Law VIII et seq. [by] libeling, defamation, intimidation, threatening, coercion, interfering, harassment, Etc." Complaint, Doc. # 1. On September 26, 2000, this Court granted defendants' unopposed motion to dismiss and entered judgment for defendants.⁴ See Docs. # 5, 6.

Standards For Motions To Alter Or Amend

The Court has discretion whether to grant or deny a motion to alter or amend the judgment.⁵

See Hancock v. City of Okla. City, 857 F.2d 1394, 1395 (10th Cir.1988). The Court may recognize any one of three grounds justifying reconsideration: an intervening change in controlling law, availability of new evidence, or the need to correct clear error or prevent manifest injustice. See Major v. Benton, 647 F.2d 110, 112 (10th Cir.1981); Burnett v. Western Resources, Inc., 929 F.Supp. 1349, 1360 (D.Kan.1996). A motion to reconsider is not a second opportunity for the losing party to make its strongest case, to rehash arguments, or to dress up arguments that previously failed. See Voelkel v. General Motors Corp., 846 F.Supp. 1482, 1483 (D.Kan.), aff'd, 43 F.3d 1484 (10th Cir.1994). Such motions are not appropriate if the movant only wants the Court to revisit issues already addressed or to hear new arguments or supporting facts that could have been presented originally. See Van Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir.1991), cert. denied, 506 U.S. 828, 113 S.Ct. 89, 121 L.Ed.2d 51 (1992).

Rule 12(b)(6) Motion to Dismiss Standards

A 12(b)(6) motion should not be granted unless it is beyond doubt that the plaintiff can prove no set of facts in support of her claim which would entitle her to relief, GFF Corp. v. Associated Wholesale Grocers, Inc., 130 F.3d 1381, 1384 (10th Cir.1997), or when an issue of law is dispositive. Neitzke v. Williams, 490 U.S. 319, 326, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989). The Court accepts all well-pleaded factual allegations in the complaint as true, see Ash Creek Mining Co. v. Lujan, 969 F.2d 868, 870 (10th Cir.1992), and makes all reasonable inferences from those facts in the light most favorable to plaintiff. Witt v. Roadway Express, 136 F.3d 1424, 1428 (10th Cir.1998).

The issue in reviewing the sufficiency of plaintiff's complaint is not whether plaintiff will prevail, but whether plaintiff is entitled to offer evidence to support her claims. Although a plaintiff need not precisely state each element of her claims, she must plead minimal factual allegations on those material elements that must be proved. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991).

Analysis

In her motion to reconsider, plaintiff asserts that she did not receive a copy of defendants' motion to dismiss. Defendants counter that the certificate of service reflects that defendants mailed to plaintiff's last known address a copy of the motion and memorandum in support, and thus defendants complied with requirements for service under Fed.R.Civ.P. 5. Even if defendants complied with service requirements under the Federal Rules, however, the Court finds that plaintiff should be allowed to respond to the merits of defendants' motion to dismiss.

Defendants contend that plaintiff has failed to state a claim upon which relief can be granted. Defendants assert that they are not state actors for purposes of Section 1983, that they are not amenable to suit under Section 1982 or the Fair Housing Act, and that plaintiff has failed to set forth facts supporting any discernable state law claim.⁶ The Court addresses these arguments in turn.

42 U.S.C. Section 1983

In order to set forth a claim for relief under 42 U.S.C. § 1983, plaintiff must assert that defendants acted under color of state law to deprive her of a federal right. See Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1237 (10th Cir.1999); Northington v. Jackson, 973 F.2d 1518, 1523 (10th Cir.1992). The Supreme Court uses a two-part test to determine whether an action is attributable to the state. First, the deprivation must be caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the State or by a person for whom the State is responsible. Second, the party charged with the deprivation must be a person who may fairly be considered a state actor. See Lugar v. Edmondson Oil Co., 457 U.S. 922, 937, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982). In this case plaintiff brings suit against a private law firm and one of its individual members. Plaintiff does not allege any facts to support a finding that defendants are state actors. Thus, plaintiff fails to set forth a Section 1983 claim.

42 U.S.C. § 1982

Defendants also assert that plaintiff has failed to allege facts supporting a claim under 42 U.S.C. § 1982, which prohibits racial discrimination in conjunction with inheriting, purchasing, leasing, selling, holding and conveying real property. Plaintiff apparently contends that defendants violated Section 1982 when, as counsel for Bunting, they sent a letter which asked plaintiff to cease contact with Bunting, and when they represented Bunting in seeking a restraining order against plaintiff.

In order to set forth a claim under Section 1982, plaintiff must allege that (1) she is a member of a racial minority; (2) that defendants denied her rights or benefits connected with ownership of property; and (3) that defendants would not have denied plaintiff these rights and benefits in the absence of racial discrimination. See Reeves v. Carrollsburg Condominium Unit Owners Ass'n, 1997 WL 1877201, at *8 (D.D.C.1997) (defendants violated § 1982 by not enforcing rules violations regarding racial harassment in way they enforced other rules).

Plaintiff alleges that she is Asian, and therefore she meets the first element of a Section 1982 claim. Whether she meets the second element is questionable. She appears to allege that defendants discriminated against her when they served as counsel for Bunting, who, according to the allegations...