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finding threats of physical violence including with a gun and continuous racially derogatory remarks to state a cause of action under Section 3617
Summary of this case from Gourlay v. Forest Lake Estates Civic Ass'nOpinion
Cause No. IP00-1064-C-T/G
November 2, 2000
ENTRY ON DEFENDANTS' MOTION TO DISMISS AND MOTION FOR SANCTIONS AND PLAINTIFFS' REQUEST FOR SANCTIONS
Plaintiffs, Gus F. Bryant and Teresa K. Bryant, bring this action against Defendants, Kevin Polston and Brenda Polston under Title VIII of the Civil Rights Act of 1968, said title also referred to as the Fair Housing Act ("FHA"), Section 1982 of the Civil Rights Act of 1866, Section 1985 of the Civil Rights Act of 1871, and Indiana common law. Defendants move to dismiss for failure to state a claim and move for sanctions for the filing of allegedly frivolous claims. Plaintiffs request sanctions against Defendants for filing a frivolous motion for sanctions. Having considered the motions, the court rules as follows.
I. Motion to Dismiss
Defendants move to dismiss all claims in the Complaint for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Plaintiffs have responded to the motion to dismiss-the court treats their response to the Defendants' motion for sanctions as a response to the 12(b)(6) motion as well. It is apparent from the Plaintiffs' memorandum of law submitted in response to the sanctions motion that the memorandum is responsive to both the motion to dismiss and the motion for sanctions.
A motion to dismiss for failure to state a claim made pursuant to Federal Rule of Civil Procedure 12(b)(6) should not be granted unless "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). The court takes the complaint's well-pleaded allegations as true and views them in the light most favorable to the plaintiffs, drawing all reasonable inferences in their favor. See Hentosh v. Herman M. Finch Univ. of Health Sciences/The Chicago Med. Sch., 167 F.3d 1170, 1173 (7th Cir. 1999).
A. Fair Housing Act
The first claim of the Complaint alleges that the Defendants engaged in discriminatory acts in an effort to "intimidate, coerce, and harass" the Plaintiffs because of their association with persons of African American descent in violation of the FHA, 42 U.S.C. § 3601 et seq. Defendants contend that the Complaint fails to state a claim under the FHA.
The stated purpose of the FHA is "to provide, within constitutional limitations, for fair housing throughout the United States." 42 U.S.C. § 3601. The Act's provisions are to be construed broadly. See Trafficante v. Metro. Life Ins. Co., 409 U.S. 205, 211-12 (1972) (addressing § 3610). 42 U.S.C. § 3617 makes it 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.
Section 3603 contains definitions and exemptions; section 3604 prohibits discrimination in the sale or rental of housing on the basis of, inter alia, race; section 3605 prohibits discrimination in residential real-estate transactions; and section 3606 prohibits discrimination in the provision of brokerage services. 42 U.S.C. § 3603-3606.
Defendants argue the Plaintiffs' claim under the FHA should be dismissed for failure to state a claim because they have not alleged discrimination in the context of the sale or rental of real property or a buyer/seller or landlord/tenant relationship. The court disagrees. Neither Swanner v. Anchorage Equal Rights Comm'n, 513 U.S. 979 (1994) (Thomas, J., dissenting from denial of petition for writ of certiorari), nor Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982), relied upon by Defendants, holds that the FHA is limited to allegations of discrimination in such transactions or relationships. Rather, Havens held that "the sole requirement for standing to sue under § 812 is the Art. III minima of injury in fact: that the plaintiff allege that as a result of the defendant's actions he has suffered `a distinct and palpable injury[.]'" Havens, 455 U.S. at 372 (quotation omitted).
Swanner refers only peripherally to the FHA, 513 U.S. at 981; the statute at issue in that case was the Religious Freedom Restoration Act of 1993. And, the cited decision is Justice Thomas' dissent from the Court's denial of a petiton for writ of ceritorari in the case; it does not represent a holding of the Supreme Court.
Defendants also rely on Looper Maintenance Service, Inc. v. City of Indianapolis, 197 F.3d 908 (7th Cir. 1999), but to no avail. The claim in Looper was brought by an African American owner of a minority qualified construction firm against the City of Indianapolis, a city agency and others. The plaintiff alleged that defendants violated the FHA by discriminating against him because of his race by failing to notify him of opportunities for bidding for government construction. See Looper, 197 F.3d at 910, 911.
The Seventh Circuit dismissed for failure to state a claim, holding that the plaintiff's claim did not fall within the ambit of 42 U.S.C. § 3604 through 3617. Id. at 912. The Seventh Circuit reasoned:
Sections 3604, 3605, and 3606 treat discrimination in the sale or rental of housing, residential real estate-related transactions, and provision of brokerage services respectively, and Section 3617 prohibits interference, coercion, or intimidation respecting any right granted by those sections. [citations omitted] It is readily apparent from a reading of these statutes that Looper's complaint does not fall within the parameters of these sections because the construction bids he complains about are neither the `sale or rental' of property. . . .
Looper, 197 F.3d at 912.
The Looper court stated Section 3617 prohibitions broadly: as "prohibiting interference, coercion, or intimidation respecting any right granted by [sections 3604- 3606]." Id. at 912 (emphasis added). The court did not discuss in detail Section 3617 which prohibits coercion, intimidation, threats or interference of a person in three circumstances: (1) "in the exercise or enjoyment of" any right granted or protected by sections 3603-3606, (2) "on account of his having exercised or enjoyed" any right granted or protected by sections 3603-3606 or (3) "on account of his having aided or encouraged any other person in the exercise or enjoyment of" any right granted or protected by sections 3603-3606. It is clear that the claim of the construction owner seeking bids on government contracts did not relate to any of these three circumstances.
The allegations of the instant Complaint, however, do relate to one of these circumstances identified in § 3617 which suggests that the Seventh Circuit would not extend its holding in Looper to the instant case. The Complaint alleges the Polstons discriminated against the Bryants because of their association with persons of African American descent, and that the discrimination consisted of a continuous pattern of racially derogatory remarks, acts of intimidation and gestures of violence or bodily harm with a gun. (Compl. ¶¶ 10-11.) These acts have allegedly forced the Bryants to stay in their home and have left them unable to work in their yard or have any of their friends of African American descent or who have biracial children visit. (Id. ¶¶ 12, 13.) The Complaint alleges further that because of alleged false misrepresentations by Defendants to local vendors who provide construction services, the Bryants have been forced to contract with vendors outside the local community and, if forced to continue doing so over time, may be financially unable to maintain their home. (Id. ¶¶ 17-19.) These allegations are not about the sale or rental of housing, a residential real-estate transaction or the provision of brokerage services. They do, however, appear to relate to the Bryants having already exercised and enjoyed their right to purchase their home free from unlawful discrimination.
These alleged acts include setting up and directing surveillance cameras at the Bryants' home, filing false reports with the sheriff, following the children of the Bryants' friends one of whom was biracial into the woods with a shotgun, walking back and forth in the yard while displaying a shot gun, shooting a pistol into the water behind the Polstons' home while one of the Bryants' children was playing in the water behind their home, and running over the foot of one of the Bryants' children with a boat trailer. (Id. ¶ 11.)
Thus, the Complaint fairly alleges that the Polstons engaged in certain conduct on account of the Bryants having exercised and enjoyed a right protected and granted by section 3603. The Complaint's allegations, therefore, fall within the ambit of Section 3617, specifically the second phrase of that section.
Defendants cite United States v. Weisz, 914 F. Supp. 1050 (S.D.N Y 1996), for the proposition that Section 3617 is inapplicable to a suit brought by one neighbor against another for the latter's conduct. The court did not so hold, however. Rather, the court assumed without deciding that conduct may violate Section 3617 without directly violating sections 3603-3606. Id. at 1054. The court's holding that the complaint failed to state a claim under the FHA rested on the absence of any allegation that the defendant's conduct directed toward the neighbors was because of their religion. Id. at 1054-55.
Several courts have held that a claim based upon coercive, threatening, intimidating, or violent conduct motivated by unlawful discrimination may state a claim under Section 3617 absent a violation of Sections 3603, 3604, 3605 or 3606. See Egan v. Schmock, 93 F. Supp. 1090, 1092-93 (N.D.Cal. 2000) (holding a § 3617 claim may be based upon discriminatory conduct designed to drive an individual out of his or her home); Ohana v. 180 Prospect Place Realty Corp., 996 F. Supp. 238, 239-243 (E.D.N.Y. 1998) (holding FHA protects individuals from interference by neighbors for discriminatory reasons in the peaceful enjoyment of their homes); Johnson v. Smith, 810 F. Supp. 235, 238-39 (N.D.Ill. 1992) (allegations that defendants participated in cross-burning on plaintiff's lawn stated claim under Section 3617); Stirgus v. Benoit, 720 F. Supp. 119, 123 (N.D.Ill. 1989) (holding allegation that plaintiff's home had been firebombed in order to intimidate and coerce her to move out of the neighborhood was sufficient to state a claim under § 3617); Stackhouse v. DeSitter, 620 F. Supp. 208 (N.D.Ill. 1985) (firebombing of family's car in effort to drive them from the neighborhood sufficient to state claim under § 3617); cf. Byrd v. Brandeberg, 922 F. Supp. 60, 64-65 (N.D.Ohio. 1996) (granting plaintiffs summary judgment on claims under Sections 1982, 3617 and 3604 against minor and his parents based on minor's throwing Molotov cocktail onto porch of plaintiffs' home); Michigan Prot. Advocacy Serv., Inc. v. Babin, 18 F.3d 337, 347 (6th Cir. 1994) (interpreting "interfere with" in section 3617 as including "such overt acts as racially- motivated firebombings"). The Seventh Circuit left this question open in Metropolitan Housing Development Corp. v. Arlington Heights, 558 F.2d 1283, 1288 n. 5 (7th Cir. 1997), cert. denied, 434 U.S. 1025 (1978), and as previously explained, its holding in Looper likely would not be extended to the context of neighborhood coercion, harassment and intimidation.
The court finds Judge Aspen's reasoning in Stackhouse particularly instructive. In that case, the plaintiff, an African American, alleged his Caucasian neighbor violated Section 3617 by interfering and intimidating him "`with respect to his housing rights' by firebombing and otherwise damaging his vehicle." Stackhouse, 620 F. Supp. at 209.
The plaintiff alleged that after he and his family exercised their right to rent an apartment free of racial discrimination, the defendant engaged in acts of violence and caused property damage in an effort to frighten and drive them away from the white neighborhood. Id. at 211. The court held that Section 3617 may be violated absent a violation of sections 3603-3606, id. at 210, stating that the conduct alleged by the plaintiff was "squarely within the range of actions prohibited by § 3617, whether or not any other section of the Act was violated." Id. at 211. The court's reasoning was two-fold. First, "reading § 3617 as dependent on a violation of the enumerated sections would render § 3617 superfluous," id. at 210, which is contrary to principles of statutory construction. Id. Second, the court determined that the statute's plain language supported that conclusion. Id. at 210-11. The court found that the conduct identified by the first phrase of § 3617, conduct affecting the exercise or enjoyment of any right protected by §§ 3603-3606, might involve violations of both § 3617 and another section. Conduct identified by the second and third phrases, on account of the person's having exercised or enjoyed such a right, and on account of his having aided or encouraged any other person in the exercise or enjoyment of such a right, respectively, could occur only after the enumerated right had been exercised. Further, the enumerated rights might not have been violated. See Stackhouse, 620 F. Supp. at 211.
The undersigned believes that Judge Aspen's statutory analysis is sound and agrees that the second and third phrases of § 3617 presuppose that the protected right already had been exercised or enjoyed.
Furthermore, a regulation promulgated under the FHA expressly states that the enjoyment of one's dwelling free from discrimination is a right protected by Section 3617. See 24 C.F.R. § 100.400(c)(2). The regulation provides in part that: "[t]hreatening, intimidating or interfering with persons in their enjoyment of a dwelling because of the race . . . of visitors or associates of such persons" is prohibited by § 3617. Id. Because Section 3617 does not directly address this issue and this is a reasonable construction of that section, this interpretation is entitled to deference. See Chevron, U.S.A., Inc. v. Natural Res. Def. Coun., Inc., 467 U.S. 837, 842-45 (1984).
Following these persuasive authorities and considering that the FHA should be construed broadly so as to effectuate its purpose of providing fair housing, the court finds that the Bryants allegations have stated a claim under Section 3617. They allege that the Polstons engaged in a pattern of threatening, intimidating, and violent conduct, that this conduct was motivated by the Bryants' association with persons of African American descent and, further, that the conduct has deprived the Bryants' of their quiet enjoyment of their home and was intended to force them to move from their home. Therefore, the motion to dismiss will be denied as to the FHA claim.
B. Section 1982
The Bryants' second claim is brought under Section 1982. The Polstons, however, contend that the Bryants have failed to state a claim under this statute.
That statute states: "All citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property." 42 U.S.C. § 1982.
The Polstons first argue that the Bryants lack standing to bring a Section 1982 claim because they are Caucasian. This argument is rejected. Caucasian plaintiffs state a claim under Section 1982 if they allege discrimination based on their association with African-Americans. See Littlefield v. McGuffey, 954 F.2d 1337 (7th Cir. 1992) (affirming jury verdict under § 1982 to white plaintiff denied rental housing on basis of boyfriend's race); Maynard v. City of San Jose, 37 F.3d 1396, 1402-4 (9th Cir. 1994) (affirming jury instructions on § 1983 retaliation claim where district court instructed that, in order to find equal protection violation, jury needed to find that defendants retaliated because white plaintiff offered assistance to an African-American individual); Schneider v. Bahler, 564 F. Supp. 1449, 1456 (N.D.Ind. 1983) ("it is possible for persons of the white race to state a claim for racial discrimination under § 1982"). Halet v. Wend Investment Co., 672 F.2d 1305 (6th Cir. 1982), cited by Defendants, is not inconsistent with these decisions. There the plaintiff, a Caucasian male, brought a Section 1982 claim challenging an adults-only rental policy which he alleged was racially discriminatory based on the greater effect it had on certain minority populations. See Halet, 672 F.2d at 1307 n. 1. Because the plaintiff did not allege he had been injured by the rental policy, but rather sought to vindicate the rights of third parties, the court concluded he lacked standing to assert a Section 1982 claim. See id. at 1308-09.
Defendants also contend that the Complaint fails to state a Section 1982 claim because the allegations do not relate to a real estate transaction. Few reported cases discuss the applicability of Section 1982 to harassing and intimidating conduct by neighbors similar to that alleged to have been committed by the Polstons, and none are controlling. Though some cases have held that Section 1982 does not encompass such conduct motivated by unlawful discrimination, e.g., Stackhouse, 620 F. Supp. at 209-10; others have held that such allegations do state a claim under Section 1982. See, e.g., Egan v. Schmock, 93 F. Supp.2d 1090, 1093 (N.D.Cal. 2000) (applying same analysis to Section 1982 claim as to FHA claim and holding that both statutes prohibit discriminatory conduct intended to drive individual out of his or her home); Byrd v. Brandenburg, 922 F. Supp. 60 (N.D.Ohio. 1996) (holding allegations of racially motivated firebombing stated claim under Section 1982); Johnson v. Smith, 810 F. Supp. 235, 237- 38 (N.D.Ill. 1992) (holding claim that defendants participated in cross burning on plaintiff's lawn stated a claim under Section 1982, following Stirgus); Stirgus v. Benoit, 720 F. Supp. 119, 122 (N.D.Ill. 1989) ("the firebombing of Stirgus' house is precisely the type of discriminatory conduct that section 1982 is designed to remedy. When a racially-motivated firebombing destroys a person's home, that person does not truly enjoy the same freedom to acquire and `hold' property as a similarly situated white citizen.").
The court believes that the latter decisions have taken the better view. First, in interpreting a statute the court should give effect to each term used if possible. See, e.g., Reiter v. Sonotone Corp., 442 U.S. 330, 339 (1979). Section 1982 gives all citizens the same right as enjoyed by white citizens to "inherit, purchase, lease, sell, hold, and convey real and personal property." 42 U.S.C. § 1982 (emphasis added). "Hold" has to mean something, and it must have a meaning different from the other verbs included in the statute in order to give effect to each term. Moreover, the Supreme Court has emphasized that Section 1982 should be broadly construed to effectuate its purposes. See City of Memphis v. Greene, 451 U.S. 100, 148 (1981) ("A narrow construction of the language of § 1982 would be quite inconsistent with the broad and sweeping nature of the protection meant to be afforded by § 1 of the Civil Rights Act of 1866 . . . from which § 1982 was derived.") (quoting Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 404 (1969)).
The court is cognizant of the distinction drawn between the FHA and Section 1982 by the Supreme Court's decision in Jones v. Alfred H. Mayer Co., 392 U.S. 409, 413 (1968) (holding that Section 1982 prohibits all racial discrimination, private and public, in the sale or rental of property). There, the Court noted that Section 1982 stands in "sharp contrast" to the FHA and is not a "comprehensive open housing law." Id. at 413. However, the court understands this contrast as drawing at least in part on Section 1982's prohibition of racial discrimination only, whereas, the FHA prohibits discrimination based on race, color, religion, national origin, and so on.
The court holds that the Bryants' allegations have stated a claim under Section 1982. The Polstons' motion to dismiss therefore is denied as to this claim.
C. Section 1985(3)
As their third claim, the Bryants allege the Polstons conspired to deprive them of their civil rights in violation of Section 1985(3). The Polstons again contend the Complaint fails to state a claim.
That statute provides in pertinent part:
If two or more persons in any State or Territory conspire or go in disguise on the highway or on the premises of another, for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; . . . in any case of conspiracy set forth in this section, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages occasioned by such injury or deprivation, against any one or more of the conspirators.42 U.S.C. § 1985(3). The court agrees that the only possibly applicable subsection of § 1983 is subsection (3). Subsection (1) prohibits conspiracies preventing an officer of the United States from the performance of his duties and subsection (2) prohibits conspiracies to obstruct justice, intimidate a party, witness or juror. Furthermore, Plaintiffs argue that they have stated a claim under Section 1985(3) and do not argue that a claim is stated under the other subsections.
The Polstons first contend the Complaint fails to state a claim under Section 1985(3) because it fails to allege that they conspired against the Bryants or attempted to deprive them of "equal protection of the laws." They contend, rather, that the Complaint merely alleges "a dispute between two neighbors that falls far short of an attempted deprivation of equal protection of the law." (Mem. Law Supp. Defs.' Mot. Dismiss at 5.)
The Polstons also contend that the claim fails because the Complaint does not allege state action which is necessary to support a Section 1985(3) claim. They next argue that the Bryants lack standing because they are a white couple in a predominantly white neighborhood and, therefore, are not members of a protected class. Finally, the Defendants contend the Complaint lacks a factual foundation for a conspiracy claim. None of these contentions is availing.
To prevail on a Section 1985(3) claim, a plaintiff must allege and prove (1) a conspiracy; (2) for the purpose of depriving any person or class of persons of the equal protection of the laws or of equal privileges and immunities under the laws; (3) an overt act in furtherance of the conspiracy; and (4) an injury to person or property or a deprivation of a federally protected right or privilege. See Griffin v. Breckenridge, 403 U.S. 88, 102-03 (1971). The Supreme Court held in Griffin that Section 1985(3) was intended to extend to private conspiracies rather than to only public conspiracies involving state action. See Griffin, 403 U.S. at 101; see also Munson v. Friske, 754 F.2d 683, 694 (7th Cir. 1985); Cohen v. Ill. Inst. of Tech., 524 F.2d 818, 828 (7th Cir. 1975) (state action not required for private conspiracy to deprive another of federally protected right). The Court further held that, "the language requiring intent to deprive of equal protection, or equal privileges and immunities, means that there must be some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' action." Griffin, 403 U.S. at 102.
The Polstons' contentions that the Complaint must allege a deprivation of equal protection and state action fly in the face of Griffin. To the extent Phelps v. Wichita Eagle-Beacon, 886 F.2d 1262, 1273. n. 10 (10th Cir. 1989), relied upon by the Polstons, holds to the contrary, it conflicts with the binding precedent of Griffin and Munson, which this court must follow.
As for the argument that the Bryants lack standing because they are Caucasian and live in a predominantly Caucasian neighborhood, the Polstons are wrong again. The Bryants are not attempting to assert the rights of others. Maynard v. City of San Jose, 37 F.3d 1396 (9th Cir. 1994), upon which the Polstons rely in making this argument, held that a white plaintiff had standing to bring a Section 1985(3) claim because Title VII granted special protection to whites who are denied association with members of other groups because of an employer's discriminatory practices and to all employees who are subjected to retaliation for assisting in the investigation of discriminatory employment practices. Id. at 1403. As this court has concluded, the Complaint alleges facts sufficient to state a claim under Section 1982. Section 1982 provides a sufficient predicate for a Section 1985(3) claim. See Johnson v. Smith, 810 F. Supp. 238; Stirgus, 720 F. Supp. at 122-23.
The Complaint alleges that the Polstons entered into a conspiracy against the Bryants motivated by the Bryants' association with persons of African American descent.
Thus, the Complaint sufficiently alleges an invidious discriminatory animus motivating the conspiracy. The Complaint also alleges overt acts in furtherance of the conspiracy, for example, that the Polstons allowed neighbors to gather at their house on the porch to stare, point, and walk back and forth in front of the Bryants' house and incited neighbors to engage in racial bantering whenever persons of African American descent visited the Bryants. The allegations reasonably infer that the Polstons agreed with each other to violate the Bryants' rights protected by Section 1982 and the FHA. The Complaint further alleges the Bryants have suffered injury as a result of the Polstons' conduct. The court concludes that the Complaint alleges facts sufficient to support a conspiracy claim-an agreement between the Polstons to violate the Bryants' federally protected rights reasonably can be inferred from the allegations. The court also concludes that the Complaint contains allegations sufficient to state a claim under Section 1985(3) and, therefore, the motion to dismiss should be denied as to that claim. Whether the allegations and facts to be proven merely establish a dispute between two neighbors is beside the point, because the allegations, when viewed in the light most favorable to the Bryants, sufficiently state a conspiracy claim under Section 1985(3).
II. Motion for Sanctions
The Defendants move for sanctions pursuant to Rule 11 of the Federal Rules of Civil Procedure, contending that the Plaintiffs' claims are frivolous and without legal or factual support. In responding to this motion, the Plaintiffs argue the motion itself is frivolous and request sanctions against the Defendants for having to respond to it.
Defendants' brief in support of its motion for sanctions really adds little to its brief supporting the motion to dismiss, other than an argument that the state law claim for defamation is without an underlying factual basis. To this, the Plaintiffs respond that their defamation claim is not founded upon a single incident. Indeed, the Complaint alleges the Polstons made misrepresentations to "local vendors," (Compl. ¶ 17) (emphasis added), thus alleging that misrepresentations were made to more than one vendor. So even if the evidence were to prove that the decision of "the vendor," necessarily a single vendor, not to do business with the Bryants had nothing to do with any representations made by the Polstons about the Bryants, as the Polstons argue it will, the court cannot conclude at this stage that the claim is wholly without any factual support.
As for the other claims in the Complaint, this court has concluded that the allegations sufficiently state claims under the FHA, Section 1982 and Section 1985(3).
Though the Polstons' brief may not cite much case law in support of their claims, what authorities the Plaintiffs cite in their brief is not the test of whether they have stated a claim.
Rather, the test is whether there is legal authority to support the bringing of these claims against the Polstons, and such authority does exist, as discussed supra. Whether or not any of the Complaint's factual allegations are "wild" or "unrealistic," as asserted by Defendants, remains to be seen from the evidence adduced at trial. Given that the Complaint states claims under the FHA, Section 1982, Section 1985(3) and a state law defamation claim, it cannot be said that these claims are frivolous and without legal or factual support. Accordingly, the motion for sanctions is DENIED.
III. Plaintiff's Request for Sanctions
Plaintiffs seek sanctions for having to respond to what they deem a frivolous motion for sanctions. It does not appear, however, that they complied with Rule 11's safe harbor provision. See FED. R. CIV. P. 11(c)(1)(A). This lack of compliance alone is a sufficient reason for denying their request. See, e.g., Divane v. Krull Elec. Co., 200 F.3d 1020, 1025 (7th Cir. 1999) ("A court that imposes sanctions by motion without adhering to this twenty-one day safe harbor has abused its discretion."). The Plaintiffs' request for sanctions is therefore DENIED.
This denial should not be interpreted as a determination that the motion to dismiss is not worthy of sanctions or a condonation of the tenor and language of the brief in support of it. The Defendants' briefing ignored significant case authorities (cited in this entry) which support the legal theories asserted by the Plaintiffs. Labeling the Plaintiffs' assertion of a § 1983(3) claims as "inexcusable and reckless" (Defs.' Mem. Law Supp. Mot. Sanctions at 6), and other similar hyperbole inappropriately furthers the ugly atmosphere in which this litigation arises. In no way should the defense perceive its avoidance of a sanction as a compliment for a job well done.
IV. Conclusion
The Complaint's allegations sufficiently state claims under the FHA, Section 1982 and Section 1985(3). These claims are not frivolous but have support in the law.Accordingly, Defendants' motion to dismiss is DENIED and Defendants' motion for sanctions is DENIED. Plaintiffs' request for sanctions also is DENIED.