. The House Report explains that § 3604(f)(2) “is intended to prohibit . . . conditions . . . which have the effect of excluding” people with disabilities, and the provision would “guarantee that an individual could not be discriminatorily barred from access to recreation facilities, parking privileges . . . and other facilities, uses of premises, benefits and privileges made available to other tenants, residents, and owners.” H.R. Rep. No. 100-711, at 23.

7 III. Conclusion For the foregoing reasons, Defendants, Morgan Overlook Apartments LLC, Morgan Crescent at Wolfchase, LLC and Huntsville Main Street Apartments LLC, by counsel, respectfully request that the Court grant their Motion to Dismiss Plaintiffs’ Amended Complaint for Failure to State a Claim and dismiss Defendants from the Amended Complaint. LEWIS WAGNER LLP By: s\ Theresa R. Parish JOHN C. TRIMBLE, #1791-49 STEPHANIE L. CASSMAN, #22206-49 THERESA R. PARISH, #27996-49 Counsel for Defendants Morgan Overlook Apartments LLCM, Morgan Crescent at Wolfchase, LLC and Huntsville Main Street Apartments LLC 7 Plaintiffs argue that Huntsville (and Morgan Overlook and Morgan Crescent if the Court concludes that Plaintiffs failed to state a claim under 42 U.S.C. § 3604(f)(1)-(2)) must remain in the case as necessary parties for relief. See Plaintiffs’ Response, p. 21, n. 14 and 28-30.

Any argument by Plaintiffs that the Amended Complaint’s allegations of 42 U.S.C. § 3604(f)(3)(C) violations at the Brooklyn Place Apartments satisfy the “discrimination” pleading requirements of its 42 U.S.C. § 3604(f)(1)-(2) claim against BPTIC is without merit. Even if § 3604(f)(3)(C) could be read as generally defining “discrimination,” without allegations identifying the adversely affected disabled individual or specific instance(s) of discrimination (as detailed above), Plaintiffs’ allegations of § 3604(f)(3)(C) violations cannot support a claim under § 3604(f)(1)-(2) against BPTIC.

is unsupported and without merit. Even if the design and construction requirements under § 3604(f)(3)(C) could be construed as “discrimination”, Plaintiffs have still failed to identify the identity of the adversely affected disabled individual or specific instance(s) of discrimination. In addition to Plaintiffs failing to identify the basic factual background to support a claim of “discrimination” under the FHA against Morgan Overlook and Morgan Crescent, Plaintiffs fail to even state a cause of action against Huntsville.

Any argument by Plaintiffs that the alleged violations of 42 U.S.C. Case 1:10-cv-00993-RLY-DML Document 43 Filed 10/18/10 Page 8 of 11 PageID #: 293 9 § 3604(f)(3)(C) satisfy the “discrimination” pleading requirement of its 42 U.S.C. § 3604(f)(1)- (2) cause of action against Morgan Overlook and Morgan Crescent is unsupported and without merit. Even if the design and construction requirements under § 3604(f)(3)(C) could be construed as “discrimination”, Plaintiffs have still failed to identify the identity of the adversely affected disabled individual or specific instance(s) of discrimination. In addition to Plaintiffs failing to identify the basic factual background to support a claim of “discrimination” under the FHA against Morgan Overlook and Morgan Crescent, Plaintiffs fail to even state a cause of action against Huntsville.

The United States tries to expand offensive non-mutual collateral estoppel beyond its boundaries. The issues with respect to 42 U.S.C. § 3604(a) and § 3617 in the Cooke case versus the issues the United States pursues under these same statutes in this case are not identical, were not actually litigated, and were not decided in a final judgment. The United States must independently establish that Colorado City and each of the other defendants violated these components of the Fair Housing Act to prove its pattern or practice claim.

A statutory definition of discrimination with regard to dwellings such as these is "failure to design and construct those dwellings" so that "the public use and common use portions of such dwellings are readily accessible to and usable by handicapped persons." 42 U.S.C § 3604(f)(3)(c). The Secretary of Housing and Urban Development, under authority granted by Congress, has promulgated the implementing regulations and technical guidelines for the FHA, which have been codified at 24 C.F.R § 100.

RELIEF 69. WHEREFORE, Plaintiffs Moseke and the ERC pray that this Court enter an order that: a) Declares that Defendants' policies, practices, and actions as alleged herein, violate the FHAA; b) Enjoins Defendants from continuing to discriminate on the basis of handicap in the construction and sale of housing; c) Orders Defendants to cease further construction and sales of all units that are not in compliance with the FHAA, and its implementing regulations; d) Orders Defendants to take affirmative actions as necessary to bring the interior spaces, exterior entrances, access routes, public use and common use areas, parking, sidewalks, foyers and mailbox facilities at Eton Square, Baldwin Grove and the Gates at West Falls into compliance with 42 U.S.C. § 3604 of the FHAA and its implementing regulations and into compliance with Va. Code Ann. 39-96.3 of the FHL and its implementing regulations; e) Awards Plaintiffs appropriate compensatory and punitive damages against Defendants; 0 Awards Plaintiffs reasonable attorneys' fees, expenses and costs; and g) Grants such other relief as may be just and necessary. 257783 v2 - 16 - Case 1:06-cv-01991-RJL-AK Document 10-8 Filed 01/29/2007 Page 17 of 18 VII.

Likewise, the FHA makes it unlawful to “make unavailable or deny[] a dwelling to any person because of race.” 42 U.S.C. § 3604(a). Here, ICP has not alleged facts that create the reasonable inference that the Texas Legislature enacted Section 250.

Nor do they represent a refusal “to make reasonable accommodations in rules, policies, practices, or services[.]” 42 U.S.C. § 3604(f)(3)(B). Plaintiff’s tester merely asked whether ASL services were available, and did not ask Defendant to make any exemption in its rules, policies, practices or services with respect to the fictional relative.