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failing to conduct independent legal analysis, instead citing Farrar, Cox, Halprin, Lawrence
Summary of this case from Trujillo v. Amity Plaza, LLCOpinion
Case No. 04-2192-JWL.
November 8, 2004
MEMORANDUM AND ORDER
Plaintiff Tremica L. King filed this lawsuit against defendants Metcalf 56 Homeowners Association, Inc. (Metcalf 56), Linda Baker, and Richard Kinney based on allegations that they intimidated and harassed plaintiff during the time period when she was a tenant at a particular residence. Plaintiff asserts claims under the Fair Housing Act of 1968 (FHA), 42 U.S.C. § 1985(3), and a common law claim for invasion of privacy. The matter is presently before the court on the motion to dismiss (doc. 15) of defendants Metcalf 56 and Ms. Baker. For the reasons explained below, the court will grant this motion in part and deny it in part. Specifically, the court will grant the motion without prejudice as to plaintiff's FHA and § 1985(3) claims and the court will deny the motion as to plaintiff's common law invasion of privacy claim.
Defendant Kinney does not join in these defendants' motion to dismiss. In fact, Mr. Kinney has not yet appeared in this action although the docket sheet reflects that he was likely served on August 9, 2004. See Notice of Return of Service (doc. 9). Given Mr. Kinney's failure to appear, the magistrate judge issued a notice and order to show cause (doc. 19) to the plaintiff why this case should not be dismissed for lack of prosecution pursuant to Fed.R.Civ.P. 41(b). Plaintiff responded (doc. 20), explaining that she timely served all three defendants within one hundred twenty days of filing the complaint. The court believes that the magistrate judge's order was intended to prompt plaintiff to file a motion for default judgment as to Mr. Kinney, although the court understands the difficulty plaintiff may have had understanding the order to that effect. In any event, suffice it to say that the court is not yet inclined to dismiss plaintiff's claims against Mr. Kinney for lack of prosecution in light of the fact that this is a multi-defendant case with claims remaining against the other defendants who have appeared. It does, however, appear that plaintiff's claims against Mr. Kinney are ripe for a motion for default judgment by plaintiff given Mr. Kinney's failure to appear.
FACTS
The following facts are taken from the allegations in plaintiff's complaint and, consistent with the well-established standards for evaluating motions to dismiss, the court assumes the truth of these facts for purposes of analyzing the motion to dismiss. Plaintiff is an African American. She signed a one-year lease for a residence located at 5664 Riley, Mission, Kansas, and she became a tenant on August 12, 2003. Defendants Baker and Kinney owned the properties on either side of her residence. Defendant Kinney was also the president of the homeowners' association, Metcalf 56, and defendant Baker was a member of Metcalf 56. At all times, they were acting on behalf of Metcalf 56 and/or their actions were ratified by Metcalf 56.
Immediately after plaintiff moved into the residence, defendants Baker and Kinney began to intimidate and harass her. They wrote down license tag numbers of cars and reported them to the property owner and the Johnson County Housing Authority. They kept records of when plaintiff left the property and when she returned to the property, and they also reported this to the Johnson County Housing Authority. They took photographs of other people who visited her or worked for her. They would listen to her telephone conversations when she would sit on the porch of her residence. Defendant Kinney called the property owner and complained that plaintiff's vehicle had expired license tags and stated that the homeowner's association would tow her vehicle.
Plaintiff moved from the property at 5664 Riley on March 15, 2004. She alleges that the sole reason that she moved was defendants' intimidation and harassment.
Based on these allegations, plaintiff asserts three claims against defendants. First, she asserts a claim under the FHA based on the defendants' alleged racial discrimination against her and retaliation against her after she filed a complaint with the Department of Housing and Urban Development. Second, she asserts a claim under 42 U.S.C. § 1985(3) in which she alleges that defendants conspired to discriminate against her on the basis of her race and to intimidate and harass her so as to deny her the right of fair and equal housing. Third, she asserts a common law invasion of privacy claim based on the defendants' alleged unreasonable intrusion upon her seclusion. Defendants Metcalf 56 and Ms. Baker now ask the court to dismiss each of these three claims against them on the grounds that plaintiff's complaint fails to state a claim upon which relief can be granted under any of these theories.
Although defendants have not formally moved for a hearing on their motion, they attached a request for hearing as an exhibit to their motion. To the extent that this exhibit could be construed as a motion for a hearing, it is denied because the court believes that oral argument is unnecessary. See D. Kan. Rule 7.2 (requests for oral argument are granted only at the court's discretion).
STANDARD GOVERNING A MOTION TO DISMISS
The court will dismiss a cause of action for failure to state a claim only when "it appears beyond a doubt that the plaintiff can prove no set of facts in support of his [or her] claims which would entitle him [or her] to relief," Poole v. County of Otero, 271 F.3d 955, 957 (10th Cir. 2001) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)), or when an issue of law is dispositive, Neitzke v. Williams, 490 U.S. 319, 326 (1989). The court accepts as true all well-pleaded facts, as distinguished from conclusory allegations, and all reasonable inferences from those facts are viewed in favor of the plaintiff. Smith v. Plati, 258 F.3d 1167, 1174 (10th Cir. 2001), cert. denied, 537 U.S. 823 (2002). The issue in resolving a motion such as this is "not whether [the] plaintiff will ultimately prevail, but whether the claimant is entitled to offer evidence to support the claims." Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511 (2002) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)).DISCUSSION AND ANALYSIS
For the reasons explained below, the court agrees with defendants Metcalf 56 and Ms. Baker that plaintiff's complaint fails to state a claim under the FHA or § 1985(3). Nonetheless, the court will dismiss these claims without prejudice to plaintiff filing an amended complaint to assert these claims based on another provision of the FHA, namely 42 U.S.C. § 3617. Lastly, the court concludes that plaintiff's complaint contains sufficient allegations to withstand defendants' motion to dismiss with respect to her common law invasion of privacy claim.
I. Fair Housing Act Claim
Defendants argue that plaintiff's complaint fails to state a claim for a violation of the Fair Housing Act because 42 U.S.C. § 3604 applies only to discriminatory conduct that directly impacts the right to acquire housing. In plaintiff's response, she clarifies that the subdivision of § 3604 upon which she is relying is subdivision (b) — that is, § 3604(b).
Section 3604(b) makes it unlawful to "discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services of facilities in connection therewith, because of race, color, religion, sex, familial status, or national origin." 42 U.S.C. § 3604(b) (emphasis added). The plain language of the statute (i.e., the emphasized language) limits the scope of § 3604(b) to discrimination in connection with the sale or rental of housing. See Clifton Terrace Assocs. v. United Technologies Corp., 929 F.2d 714, 720 (D.C. Cir. 1991). Based on this, district courts have widely held that § 3604(b) extends only to discrimination that impacts that accessibility and availability of housing, not to claims of discriminatory conduct relating to the use and enjoyment of previously acquired housing. See, e.g., Farrar v. Elbidany, No. 04 C 3371, 2004 WL 2392242, at *4 (N.D. Ill. Oct. 15, 2004) (dismissing § 3604(b) claim based on the defendants' alleged denial of heat and hot water because those services were associated with the maintenance of the plaintiff's apartment and were therefore outside of the scope of the statute); Lawrence v. Courtyards at Deerwood Ass'n, Inc., 318 F. Supp. 2d 1133, 1141-43 (S.D. Fla. 2004) (holding § 3604(b) is limited to conduct that directly impacts the accessibility of housing); Cox v. City of Dallas, No. 398CV1763BH, 2004 WL 370242, at *6-*8 (N.D. Tex. Feb. 24, 2004) (collecting case law and concluding that § 3604(b) applies only to discrimination in the provision of services that precludes the sale or rental of housing); Halprin v. Prairie Single Family Homes of Dearborn Park Ass'n, 208 F. Supp. 2d 896, 900-01 (N.D. Ill. 2002) (dismissing § 3604(b) claim because the plaintiffs' allegations did not pertain to services in connection with the acquisition of housing; stating plaintiffs' § 3604(b) claim was undermined by the plaintiffs' allegation that they already owned their home at the time the problems began); Matthews v. New Century Mortgage Corp., 185 F. Supp. 2d 874, 885 (S.D. Ohio 2002) (holding § 3604(b) does not apply to previously acquired homes). The court finds the holdings of these other district courts to be persuasive because they are consistent with the plain language of the statute.
In this case, plaintiff's allegations relate entirely to her use and enjoyment of a residence that she had already acquired. She does not allege that defendants discriminated against her in connection with her initial rental of the residence or that defendants' conduct impacted the accessibility or availability of housing to her. Accordingly, her complaint fails to state a claim upon which relief can be granted under § 3604(b), and therefore defendants' motion to dismiss is granted as to plaintiff's FHA § 3604 claim.
Although plaintiff apparently ultimately chose to move out of the residence, she does not argue that her § 3604(b) claim is premised upon this allegation. Rather, her sole argument in support of her FHA claim is based on another provision of the FHA, 42 U.S.C. § 3617, an argument which is discussed infra.
In fact, plaintiff does not really dispute defendants' argument that her complaint fails to state a claim under § 3604(b). Instead, she argues that she is alleging a violation of the FHA by virtue of 42 U.S.C. § 3617, which makes it illegal to intimidate anyone who is exercising a right guaranteed under other provisions of the FHA, because she was exercising a protected property right under § 3604 when she entered into the leasing agreement with the property owner. While that may be what plaintiff now argues, that is not what her complaint alleges. Her complaint clearly asserts a claim under § 3604, not § 3617, and plaintiff's argument to the contrary in her response brief is not the proper way to amend her complaint. Nevertheless, with that being said, the court notes that defendants did not submit a reply brief attempting to dispute plaintiff's argument that the allegations in her complaint adequately state a claim under § 3617. Given the absence of meaningful argument from the parties on this issue, then, the court believes that the most prudent course of action at this procedural juncture would be to dismiss plaintiff's FHA § 3604 claim without prejudice to plaintiff filing an amended complaint no later than November 19, 2004, asserting an FHA claim pursuant to § 3617.
II. Section 1985(3) Claim
The first clause of § 1985(3) prohibits persons from conspiring "for the purpose of depriving, either directly or indirectly, any person or class of persons equal protection under the laws." 42 U.S.C. § 1985(3). Because § 1985(3) is not intended to serve as a "general federal tort law," Griffin v. Breckenridge, 403 U.S. 88, 102 (1971), it does not itself create any substantive rights but rather merely serves as a vehicle for vindicating some otherwise defined federal right, Great Am. Fed. Sav. Loan Ass'n v. Novotny, 442 U.S. 366, 376 (1979). In order to state a claim for a private conspiracy under this part of § 1985(3), the plaintiff must allege, inter alia, that the conspiracy was: (1) motivated by a class-based invidiously discriminatory animus; and (2) "`aimed at interfering with rights' that are `protected against private, as well as official, encroachment.'" Bray v. Alexandria Women's Health Clinic, 506 U.S. 263, 267-68 (1993) (quoting United Bhd. of Carpenters, 463 U.S. at 833); accord Tilton v. Richardson, 6 F.3d 683, 686 (10th Cir. 1993). To date, the Supreme Court has recognized only two rights that are protected against private action under § 1985(3): the right to be free from involuntary servitude and the right of interstate travel in the context of the Thirteenth Amendment. Bray, 506 U.S. at 278; Tilton, 6 F.3d at 686-87.
The second clause of § 1985(3) prohibits conspiracies to interfere with a state officer's performance of duties and the third clause of § 1985(3) prohibits conspiracies to interfere with the right to support candidates in a federal election. United Bhd. of Carpenters v. Scott, 463 U.S. 825, 839 n. 1 (1983) (Blackmun, J., dissenting). Because neither of these two categories of conduct are even arguably implicated in this case, the court construes plaintiff's claim to be premised on the first clause of § 1985(3).
Here, defendants argue that plaintiff has failed to allege that defendants' conduct was unlawful independent of § 1985(3). In response, plaintiff argues that her § 1985(3) claim is premised on defendants' violations of the FHA. Because plaintiff's complaint fails to state a claim under the FHA, however, plaintiff cannot rely on her FHA claim to support her § 1985(3) claim. Accordingly, defendants' motion to dismiss plaintiff's § 1985(3) claim is also granted.
The court will also dismiss plaintiff's § 1985(3) claim without prejudice to plaintiff filing an amended complaint no later than November 19, 2004, re-asserting her claim under § 1985(3). Although the court is dismissing this claim without prejudice, the court wishes to inform plaintiff's counsel that the court's thorough research on this issue has not revealed any case in which a § 1985(3) claim was premised on an FHA violation. Thus, the court wishes to caution plaintiff's counsel that he would be well advised to review Bray, Tilton, and other similar case law, see, e.g., Brown v. Philip Morris, Inc., 250 F.3d 789, 805 (3d Cir. 2001) (affirming district court's ruling that only constitutional rights, not statutorily enacted rights, can be vindicated under § 1985(3)), and make sure that plaintiff is prepared to advance a plausible argument in support of this claim. See Fed.R.Civ.P. 11(b)(2) (by signing a pleading or motion, counsel is representing that the claims therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law).
III. Common Law Claim for Invasion of Privacy/Intrusion Upon Seclusion
"Generally, invasion of privacy is actionable where there is: (1) unreasonable intrusion upon the seclusion of another; (2) appropriation of another's name or likeness; (3) unreasonable publicity given to another's private life; or (4) publicity that unreasonably places another in a false light before the public." Finlay v. Finlay, 18 Kan. App. 2d 479, 485-86, 856 P.2d 183, 189 (1993). In this case, plaintiff claims an invasion of privacy under the theory of intrusion upon seclusion. A defendant is liable under this theory if he or she intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another and the intrusion would be highly offensive to a reasonable person. Moore v. R.Z. Sims Chevrolet-Subaru, Inc., 241 Kan. 542, 547, 738 P.2d 852, 856 (1987).
Defendants argue that the Kansas Court of Appeals in Finlay held that a physical or sensory intrusion must be present and that plaintiff has failed to allege such an intrusion. Defendants, however, misconstrue the court's holding in Finlay as well as the alleged facts of this case. In Finlay, the plaintiffs claimed that the defendant, who was their neighbor, committed the tort of intrusion upon seclusion by virtue of a cattle feeding operation. The court affirmed the trial court's grant of summary judgment on this claim because the "[p]laintiffs' private affairs are not exposed to defendant's physical presence or the presence of defendant's senses." Finlay, 18 Kan. App. 2d at 487, 856 P.2d at 190. In Finlay, there was simply no physical or sensory intrusion into the plaintiffs' private affairs.
The Kansas Supreme Court has generally adopted the contours of this tort as outlined in the Restatement § 652B. See generally Moore, 241 Kan. at 547-49, 738 P.2d at 856-58 (discussing Kansas case law and § 652B). Comment b to § 652B explains that intrusion upon seclusion can occur "by the use of the defendant's senses, with or without mechanical aids, to oversee or overhear the plaintiff's private affairs" or "by some other form of investigation or examination into his [or her] private affairs." In this case, there is nothing private about the fact that defendants allegedly wrote down license tag numbers, kept records of when plaintiff left the property and returned to the property, or recognized that plaintiff's license tags had expired. All of these seem to be matters that would be readily observable by the public eye. On the other hand, though, plaintiff also alleges that defendants took photographs of plaintiff and other people who visited or worked for her and listened to her telephone conversations when she was sitting on the porch of her residence. Taking all reasonable inferences from these allegations in plaintiff's favor, as the court must at this procedural juncture, the court cannot say that it appears beyond a doubt that plaintiff cannot prove any set of facts which would entitle her to relief. The court can envision circumstances under which taking such photographs and/or eavesdropping on telephone conversations may by viewed as an unreasonable invasion of defendants' senses into plaintiff's solitude. Accordingly, defendants' motion to dismiss plaintiff's invasion of privacy claim is denied.
IT IS THEREFORE ORDERED BY THE COURT that the motion to dismiss by defendants Metcalf 56 and Ms. Baker (doc. 15) is granted in part and denied in part. Specifically, it is granted without prejudice as to plaintiff's FHA and § 1985(3) claims, and it is denied with respect to plaintiff's common law invasion of privacy claim. Plaintiff is granted leave to file an amended complaint on or before November 19, 2004, with respect to her FHA and § 1985(3) claims.
IT IS SO ORDERED.