Opinion
5:23-CV-17-M
12-05-2023
ROBERT J. MORGAN, Plaintiff, v. TOWNE PROPERTIES, LLC (NC), BRITTANY WOODS HOMEOWNER'S ASSOCIATION, INC., and LAYDEN PEARCE, Defendants.
MEMORANDUM AND RECOMMENDATION
ROBERT B. JONES JR. UNITED STATES MAGISTRATE JUDGE
This matter is before the court on three motions: two motions to dismiss, filed by Defendant Layden Pearce (“Pearce”) and Defendants Towne Properties, LLC (NC) and Brittany Woods Homeowner's Association, Inc. (together, the “HOA Defendants”) [DE-16, -27], and Plaintiff Robert J. Morgan's (“Morgan”) pro se motion for reconsideration, [DE-61]. Morgan filed an opposition to Pearce's motion to dismiss on June 2,2023, and an additional response in opposition on July 27, 2023 [DE-34, -52]. Morgan filed an opposition to the HOA Defendants' motion on June 28, 2023 [DE-41]. Most recently, Morgan filed a motion for reconsideration of the court's stay of discovery [DE-61]. The defendants did not respond and the time to do so has expired, so the motion is ripe for review. All three motions are referred here by the district court for a recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Civ. R. 72.3(c)(1)a., E.D. N.C. For the following reasons, it is recommended that the motions to dismiss be granted, and that the motion for reconsideration be denied as moot.
I. Background
On January 13, 2023, Morgan, proceeding pro se, brought this action against Pearce and the HOA Defendants, related to alleged housing discrimination associated with his ownership of a townhome in the Brittany Woods Townhomes community in Raleigh, North Carolina. [DE-1]. Morgan subsequently filed corrections to the original complaint on March 7, 2023. [DE-12], The March 7 corrections consisted of minor handwritten comments and dates overlaying the original complaint's text; they were never treated as formally amending the original complaint. Id. Shortly thereafter, on March 31,2023, Pearce filed the instant motion to dismiss for failure to state a claim, and the HOA Defendants filed their motion on April 21,2023. The court stayed discovery pending ruling on the motions [DE-60], which Morgan now asks the court to reconsider [DE-61].
The complaint's allegations are as follows. Morgan has owned a townhome at 6804 Daltrey Court, Raleigh, NC, 27613, since at least April 7, 2007. Compl. [DE-1] ¶ 3. Pearce is one of Morgan's neighbors in the Brittany Woods community, residing at 6810 Daltrey Court. Id. ¶ 4. Both properties (and all other properties within the Brittany Woods community) are governed, operated, and managed by Towne Properties, (NC) LLC and the Brittany Woods Homeowner's Association, Inc. Id. ¶¶ 3-4.
The HOA Defendants' motion clarifies that the entity the complaint refers to as “Towne Properties, (NC) LLC” and “Towne Properties, LLC (NC)” is likely Towne Properties, LLC. Defs.' Mem. [DE-28] at 11, Exs. A& B. Towne Properties, LLC was administratively dissolved in January 2016, and Talis Management, LLC d/b/a Towne Properties has taken over operations. Id. Nevertheless, this Recommendation refers to the entity as named by Morgan.
Morgan asserts that, despite many appeals to both Pearce and the HOA Defendants, he cannot safely use the land, parking lot, path, or bridge near his townhome-spaces that should belong to all residents of the Brittany Woods community. Id. ¶ 6. These common areas “CONNECT[ ] THIS REMOTE, SEPERATED PROPERTY BY REGION, and design.” Id. ¶ 5.
As Morgan puts it, the inability to use these spaces has put him “IN TRAUMA.” Id. ¶ 6. This trauma has several root causes, spanning well over a decade. Id. ¶ 3.
Specifically, Morgan claims that the HOA Defendants have “been aware of my needs for exercise, use and therapy for my DOCUMENTED DISABILITIES, (MEDICAL REDCORDS [sic] ARE PRIVATE AND MUST BE OBTAINED BY COURT ORDER)” since April 2007. Id. Despite this alleged knowledge, though, “the defendants have made fun of, made light, conspired, refused to address, created barriers” and unequally penalized Morgan by not dropping fines and fees levied on him that were dropped for other residents. Id. The complaint also alleges that Pearce's actions have contributed to Morgan's inability to utilize the common areas and the distress he faces because of it. Id. ¶ 6. Morgan highlights Pearce's trash cans, vehicles parked on the property, and guests as examples. Id. Additionally, in 2019, Morgan was apparently “carried away in ambulance, because, LAYDEN PEARCE, and her family fixed, her home, on CO-MINGLE JOB order, for HER REPAIRS, on HER END UNIT, BY PATH, WALK, and ACCESS TO BRIDGE.” Id.
To the extent that the blanket term “the defendants” applies to Pearce, it does not change the court's Recommendation.
The complaint also cites a particular incident that occurred on October 16. On this day, a couple of the HOA Defendants' representatives approached Morgan and explained that, at Pearce's request, they were “placing barrier out side your walk, and a hole [near Pearce's residence]” to assist with drainage. Id. Morgan protested that the drainage hole was not safe, and that he could not have a “BLOCK at my top, of my walk, and a dangerous hole, for drainage.” Id. Morgan's appeals did not prevail, however, as on November 17 the hole was “dug, rocks, placed, and is now, ‘DEATH TRAP.'” Id. ¶ 7. Morgan has communicated to both the HOA Defendants and Pearce that he believes the hole is unsafe, yet it remains on the property. Id.
Notably, the complaint does not provide the year that this interaction took place. Id. ¶ 6. The court recognizes that the correction to the complaint filed on March 7, 2023, includes a notation indicating that the event in fact occurred on October 5, 2023. Compl. Correction [DE-12] ¶ 6. However, for the purposes of this Recommendation, that correction has been disregarded given that at the time of the case's filing date, October 5 (or 16), 2023 had not yet happened.
The complaint does not provide the year that this event took place. Compl. [DE-1] ¶ 7.
II. Standard of Review
Both Pearce and the HOA Defendants have filed a motion to dismiss the complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure. The HOA Defendants' motion also argues that, if the complaint survives the 12(b)(6) inquiry, Defendant Towne Properties, LLC (NC) should be dismissed pursuant to Rules 12(b)(2), (4), and (5) of the Federal Rules of Civil Procedure.
i. Rule 12(b)6)
A Rule 12(b)(6) motion aims to test the complaint's legal and factual sufficiency. See Ashcroft v. Iqbal, 556 U.S. 662, 677-80 (2009); BellAtl. Corp. v. Twombly, 550 U.S. 544, 554-63 (2007); Coleman v. Md. Ct. of Appeals, 626 F.3d 187, 190 (4th Cir. 2010), aff'd, 566 U.S. 30 (2012); Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008). To withstand a motion to dismiss, the complaint “must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 678 (quotation omitted); see Twombly, 550 U.S. at 570; Giarratano, 521 F.3d at 302. In considering the motion, the court must construe the facts and reasonable inferences “in the light most favorable to the [nonmoving party].” Massey v. Ojaniit, 759 F.3d 343, 352 (4th Cir. 2014). A court need not accept as true a complaint's legal conclusions, “unwarranted inferences, unreasonable conclusions, or arguments.” Giarratano, 521 F.3d at 302; see Iqbal, 556 U.S. at 678-79. Rather, a plaintiff's allegations must “nudge[ ] [his] claims,” Twombly, 550 U.S. at 570, beyond the realm of “mere possibility” into “plausibility,” Iqbal, 556 U.S. at 678-79.
ii. Rule (12)(b)(2)
Under Rule 12(b)(2), the party asserting personal jurisdiction has the burden to prove the existence of a ground for jurisdiction by a preponderance of the evidence. Wellington Fin. Corp, v. Flagship Resort Dev. Corp., 416 F.3d 290,294 (4th Cir. 2005). However, when a court addresses the question of jurisdiction based only on the pleadings, the allegations in the complaint, the motion papers, and any supporting legal memoranda, without an evidentiary hearing, the burden is on the plaintiff to simply make a prima facie showing of a sufficient basis for jurisdiction. Id. In determining whether the plaintiff has made such a showing, the court “must construe all relevant pleading allegations in the light most favorable to the plaintiff, assume credibility, and draw the most favorable inferences for the existence of jurisdiction.” Id. (quoting Combs v. Bakker, 886 F.2d 673, 676 (4th Cir. 1989)).
iii. Rules 12(b)(4) and 12(b)(5)
A motion under Rule 12(b)(4) challenges the sufficiency of process, while a motion under Rule 12(b)(5) challenges the sufficiency of service of process. See Fed.R.Civ.P. 12(b)(4), (b)(5). “When the process gives the defendant actual notice of the pendency of the action, the rules . . . are entitled to a liberal construction” and “every technical violation of the rule or failure of strict compliance may not invalidate the service of process.” Armco, Inc. v. Penrod-Stauffer Bldg. Sys., Inc., 733 F.2d 1087, 1089 (4th Cir. 1984). However, even when the defendant has actual notice of the action, “the rules are there to be followed, and plain requirements for the means of effecting service of process may not be ignored.” Id. The plaintiff bears the burden of establishing that process has been properly served. Dalenko v. Stephens, 917 F.Supp.2d 535, 542 (E.D. N.C. 2013); see also Mylan Labs., Inc. v. Akzo, N. V, 2 F.3d 56, 60 (4th Cir. 1993) (holding that plaintiff must prove service of process if challenged).
III. Discussion
i. Pearce's Motion to Dismiss
Pearce contends that Morgan's claims must be dismissed under Rule 12(b)(6) because he has failed to plead any cause of action upon which relief can be granted under the Fair Housing Act (“FHA”). Specifically, Pearce claims that the complaint does not (1) allege that Morgan is a member of a protected class; (2) show that Pearce is a provider under the FHA; (3) assert a claim for harassment under the FHA; (4) plead a failure to make reasonable accommodations under the FHA; or (5) make a claim for retaliation under the FHA. Def's Mem. [DE-17] at 5-7. Pearce also states that at least one of Morgan's claims is time-barred. Id. at 7. Morgan asserts that he has pleaded sufficient facts to state a plausible FHA claim. Pl.'s Resp. [DE-34] at 2-4.
A. Briefing Exhibits
In support of Morgan's opposition to Pearce's motion to dismiss he filed a photograph of the Brittany Woods community, Ex. 1, and the after-visit summary from a visit with his medical provider, Ex. 2. [DE-34-1, -34-2], In support of Morgan's second response in opposition, he attached correspondence with the North Carolina Department of Justice, Consumer Protection Division, Ex. 1; a Civil Cover Sheet from the instant litigation, Ex. 2; handwritten notes, Ex. 3; 2010 correspondence from Talis Management Group to Brittany Woods residents, Ex. 4; an allergy and problem list recorded by his medical provider, Ex. 5; and a grocery receipt containing handwritten notes, Ex. 6. [DE-52-1 to -52-6]. Since filing both responses, Morgan has also filed various photos of the Brittany Woods parking area, a picture of a parked utility truck, and a FedEx receipt [DE-66, -70, -71]. It is unclear whether these documents are associated with a pending motion. See id.
The court may not consider these documents in determining whether Morgan has stated a claim for relief because they do not give rise to the legal rights Morgan asserts and are not integral to the complaint. See Goines v. Valley Cmty. Servs. Bd., 822 F.3d 159, 166 (4th Cir. 2016) (citing Sec'y of State for Defence v. Trimble Navigation Ltd., 484 F.3d 700, 705 (4th Cir. 2007)). To be integral to the complaint, a document must, “by its very existence, and not the mere information it contains, give[ ] rise to the legal rights asserted.” Tagirova v. Elizabeth City State Univ., 2017 WL 4019516, at *4 (E.D. N.C. Sept. 11, 2017) (collecting cases); Jacobs v. Zurich Am. Ins. Co., 2022 WL 16952013, at *2 (D.S.C. Nov. 15, 2022) (concluding an integral document “must do more than contain information that is important to the plaintiffs claims. Instead, its very existence must give rise to the legal rights asserted.”) (citing United States ex rel. Foreman v. AECOM, 19 F.4th 85, 106 (2d Cir. 2021)).
A complaint may not be amended by asserting information in briefs or exhibits filed in opposition to a motion to dismiss. See Mack v. E.C. Univ., 2022 WL 945595, at *6 (E.D. N.C. Mar. 29, 2022) (citing Pa. ex rel. Zimmerman v. PepsiCo, Inc., 836 F.2d 173, 181 (3d Cir. 1988) (“[I]t is axiomatic that the complaint may not be amended by the briefs in opposition to a motion to dismiss.”) (quoting Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101,1107 (7th Cir. 1984)); see also Morgan Distrib. Co., Inc. v. Unidynamic Corp., 868 F.2d 992, 995 (8th Cir. 1989) (same); Barclay White Skanska, Inc. v. Battelle Mem'l Inst., 262 Fed.Appx. 556, 563 (4th Cir. 2008) (citations omitted) (“A plaintiff may not amend her complaint through argument in a brief opposing summary judgment.”). Accordingly, the exhibits attached to both of Morgan's responses in opposition (and the photographs filed at [DE-66 and -70]) are not properly considered in evaluating whether the complaint states a plausible claim for relief.
B. Morgan's Status as a Member of a Protected Class
The FHA aims to provide fair housing throughout the United States by protecting specific classes of people from discrimination when they are renting, buying, or securing financing for housing. See 42 U.S.C. § 3601, 3604 (2023). Protected characteristics include race, color, religion, sex, familial status, national origin, and disability. Id. § 3604; 24 C.F.R. § 100.5(a) (2021). Under the statute, a handicap is defined in three ways. § 3602(h). First, a qualifying disability may constitute a “physical or mental impairment which substantially limits one or more of such person's major life activities.” Id. at (1). Second, a person may qualify as handicapped if there is a record of them having such an impairment. Id. at (2). And finally, a person may qualify as handicapped if they are regarded as having such an impairment. Id. at (3).
In October 2016, the Department of Housing and Urban Development (“HUD”) promulgated regulations interpreting the FHA. The Fourth Circuit has not addressed them. This court assumes without deciding that these regulations are entitled to Chevron deference in FHA cases. See Harris v. Vanderburg, 584 F.Supp.3d 82,92 (E.D. N.C. 2022) (citing cases). No defendant has argued that the regulations are not entitled to Chevron deference. Moreover, “[t]he Supreme Court has nonetheless recognized that HUD's views about the meaning of the FHA are entitled to ‘great weight.'” Id. (citing Bloch v. Frischholz, 587 F.3d 771, 781 (7th Cir. 2009) (en banc)).
Morgan asserts that he has “needs for exercise, use and therapy for my DOCUMENTED DISABILITIES.” Compl. [DE-1] ¶ 3. He also claims that at least the HOA Defendants are aware of these needs. Id. However, the complaint does not describe the extent of the HOA Defendants' knowledge or plead facts alleging that the HOA Defendants treated Morgan differently because of his disabilities. Id. ¶¶ 1-7. Additionally, the complaint does not name or describe the specific physical or mental ailments that Morgan experiences in any kind of detail. Id.
The mere assertion that a documented disability exists is, without more, insufficient to plausibly plead that one or more of Morgan's major life activities are substantially limited because of disability. See Thomas v. Salvation Army Southern Territory, 841 F.3d 632, 639 (4th Cir. 2016) (finding facts did not give rise to reasonable inference plaintiff was handicapped under the FHA where complaint asserted she suffered from unidentified mental disability). Such a bare assertion is also insufficient to plausibly plead that there is a record of Morgan having a substantial impairment (given that it is uncertain what disability Morgan claims to have and what records documenting it exist) or that Morgan is regarded as having such an impairment. See 24 C.F.R. § 100.201(d) (a claimant is regarded as having an impairment where she (1) has an impairment that “does not substantially limit one or more major life activities but that is treated by another person as constituting such a limitation”; (2) has an impairment that “substantially limits one or more major life activities only as a result of the attitudes of the other toward such impairment”; or (3) has neither a mental nor physical impairment but is “treated by another person as having such an impairment”). As a result, when applying the Iqbal standard, there is not enough factual matter contained in the complaint to render it plausible that Morgan is a member of a protected class under the FHA.
C. Pearce's Status as a Provider Under the FHA
The FHA seeks to prevent discrimination against members of protected classes in the “sale, rental, or advertising of dwellings, in the provision of brokerage services, or in the availability of residential real estate-related transactions.” 24 C.F.R. § 100.5(a); see 42 U.S.C. § 3604 (2023). Notably, as a statutory tort action, the Act incorporates the “legal background of ordinary tort-related vicarious liability rules.” Meyer v. Holley, 537 U.S. 280, 285 (2003). Thus, a tortfeasor may incur either direct or indirect liability for FHA violations. Id.
As stated in the complaint, Pearce is Morgan's neighbor, residing at 6810 Daltrey Court. Compl. [DE-1] ¶ 4. There is no indication that Pearce is in any way involved in the residential real estate market or in offering brokerage services, nor does the complaint allege that she has ever offered such services to Morgan. Id. ¶¶ 1-7. Given these facts, it is simply not plausible that Pearce's alleged conduct is covered by the FHA.
D. FHA Violations
As detailed above, the FHA is designed to prevent housing discrimination by agents and entities offering real estate services based on enumerated protected characteristics. See supra §§ III(i)(B), (C). Eventually, FHA plaintiffs must be able to make a prima facie showing of discrimination based on protected class membership using either direct or circumstantial evidence under the McDonnell Douglas framework. See Connolly v. Lanham, 2023 WL 4932870 at *4 (D. Md. Aug. 2, 2023). However, at the pleading stage, a plaintiff seeking relief need only plausibly allege that the defendant discriminated based on a protected characteristic, such as disability. See id. (citing cases); see also CASA de Md, Inc. v. Arbor Realty Tr., Inc., 2022 WL 4080320, at *10 (D. Md. Sept. 6, 2022) (to sufficiently plead discriminatory intent under the FHA at the motion to dismiss stage, plaintiffs must “allege facts at least supporting an inference that discriminatory animus was a motivating factor.”).
Critically, in the Fourth Circuit, an “FHA claim can proceed under either a disparatetreatment or a disparate-impact theory of liability, and a plaintiff is not required to elect which theory the claim relies upon at pre-trial, trial, or appellate stages.” Reyes v. Waples Mobile Home Park Ltd. P'ship, 903 F.3d 415, 421 (4th Cir. 2018). “Therefore, for purposes of a motion to dismiss for lack of legally cognizable discrimination, the court must discern if either predicate theory of discrimination is sufficiently pled.” Nat'l Fair Hous. All. v. Bank of Am., N.A., 401 F.Supp.3d 619, 630 (D. Md. 2019).
In the instant case, the complaint does not plausibly allege disparate treatment or impact. In Tex. Dep't of Housing & Cmty. Affs. v. Inclusive Cmtys. Project, Inc., 576 U.S. 519 (2015), the Supreme Court confirmed that disparate-impact claims are cognizable under the FHA. In general, “a plaintiff bringing a disparate-impact claim challenges practices that have a disproportionately adverse effect on minorities and are otherwise unjustified by a legitimate rationale.” Reyes, 903 F.3d at 424 (quoting Inclusive Comtys., 576 U.S. at 2513 (internal quotation marks omitted)). While eventually such claims must be analyzed under a three-step, burden-shifting framework, at the pleading stage, the emphasis is on step one only: the plaintiff must allege facts showing a robust causal connection between the defendant's challenged policy and the disparate impact on the protected class. Id. at 424-26. It is here that the allegations in Morgan's complaint clearly do not pass muster. Pearce is not a provider under the FHA, a fact made clearer because Morgan cannot (and has not attempted to) assert that she maintains some policy or practice that disproportionately and unjustifiably impacts minorities. See Compl. [DE-1] ¶¶ 1-7. It would take some amount of mental gymnastics to find that any kind of causal relationship exists between a relevant policy of Pearce's and how disabled people are treated in this case. For that reason, the complaint does not plausibly plead a disparate impact claim against Pearce.
With respect to disparate treatment, the complaint does not clearly plead that Pearce is even aware of Morgan's alleged disabilities. See id.', see supra note 2. And while Morgan has certainly described some sort of neighborly dispute with Pearce, the complaint fails to highlight any specific statements or acts by Pearce that reflect a discriminatory attitude. Id. For example, the complaint explains that the October 16 and November 17 events concerning the drainage hole occurred at Pearce's request, over Morgan's objection. Id. ¶¶ 6-7. However, it makes no claim that Pearce desired construction of the drainage hole out of animus towards Morgan and his alleged, unspecified disability. Id. Consequently, the complaint does not plausibly suggest an inference of discriminatory motivation under either a disparate impact or disparate treatment theory, as required by the FHA. Nevertheless, the following subsections analyze various adverse actions raised in Pearce's motion to determine whether Morgan has plausibly alleged such conduct in his complaint.
1. Harassment
While there is no Fourth Circuit case authority expressly authorizing hostile housing environment (harassment) claims for disabled individuals, other circuits have found that such claims are actionable under section 3604(b) of the FHA. See Neudecker v. Boisclair Corp., 351 F.3d 361, 364 (8th Cir. 2003) (finding disability harassment claims cognizable under the FHA and relying in part on Fox v. Gen. Motors Corp., 247 F.3d 169, 176 (4th Cir. 2001), where the Fourth Circuit found hostile-work-environment claims for disability harassment actionable under the ADA). To state a claim, the plaintiff must allege that they endured unwelcome harassment based on a protected characteristic; that the harassment was severe or pervasive enough to interfere with the terms, conditions, or privileges of their residency, or in the provision of services or facilities; and that there is a basis for imputing liability to the defendant. See id. at 364-65. This section assumes that disability harassment housing claims are actionable in the Fourth Circuit for the sake of analysis.
Reading the complaint charitably, Morgan alleges that he has had some unwelcome interactions with Pearce. Compl. [DE-1] ¶¶ 6-7. However, the complaint fails to allege that these interactions have had anything to do with Morgan's disability. Id. Pearce's decisions- requesting a drainage hole, placing her trash cans outside, parking cars on the property, and inviting guests over-do not inherently suggest a discriminatory intent. Id. Finally, while the complaint asserts that Pearce's conduct has, in part, prevented Morgan from utilizing common areas that are a privilege of his residency, the available facts are insufficient to plausibly allege that Pearce's actions have been severe or pervasive enough to constitute harassment. Compl. [DE-1] ¶¶ 5-7. .
The only information that can be gathered from the complaint is that Morgan has resided at 6804 Daltrey Court for 16 years, and that Pearce's actions have not caused him to entirely stop using and enjoying the property. Id. ¶¶ 3-7. Thus, if disability housing harassment claims are actionable in the Fourth Circuit, Morgan has not plausibly alleged that such conduct occurred here.
2. Failure to Reasonably Accommodate
The FHA requires an accommodation for disabled individuals if the accommodation is “(1) reasonable and (2) necessary (3) to afford handicapped persons equal opportunity to use and enjoy housing.” Bryant Woods Inn, Inc. v. Howard Cnty., Md, 124 F.3d 597, 603 (4th Cir. 1997). To determine whether the reasonableness requirement has been met, a court may consider the extent to which the accommodation would undermine the legitimate purposes and effects of existing zoning regulations and the benefits that the accommodation would provide to the disabled person. Id. at 604. It may also consider whether alternatives exist to achieve the benefits more efficiently. Id. The necessary element, meanwhile, requires a direct linkage between the proposed accommodation and the “equal opportunity” to be provided to the disabled person. Id. In turn, the “equal opportunity” requirement mandates not only the level of benefit that must be sought by a reasonable accommodation but places a limitation on what is required to be given as an accommodation. Id. The FHA does not require accommodations that increase a benefit to a disabled person above the benefits provided to an able-bodied person with respect to matters unrelated to the disability. Id.
The balancing test is not necessary in the instant case, however, because on its face, the complaint does not allege that Morgan identified an accommodation or proposed one to Pearce. Compl. [DE-1] ¶¶ 1-7. In fact, the complaint does not allege that Morgan even generally informed Pearce about his disability. Id. At most, it can be inferred that Morgan did not agree with Pearce's request for the drainage hole, and that he objected to decisions she made concerning her trash cans, vehicles, and guests. Id. ¶ 6. However, Morgan's disagreement alone does not render Pearce's actions a refusal to accommodate or an act of discrimination, particularly if Pearce had no knowledge of Morgan's disability. The complaint's allegations in this regard read as a neighborly dispute, nothing more.
3. Retaliation
To state a retaliation claim under the FHA, a plaintiff must allege that she was engaged in protected activity; the defendant was aware of that activity; the defendant took adverse action against her; and a causal connection existed between the protected activity and the asserted adverse action. Hall v. Greystar Mgmt. Srvs., L.P., 637 Fed.Appx. 93, 97-98 (4th Cir. 2016) (unpublished). Critically, the retaliatory conduct must come after the protected activity. Id. at 98.
Morgan's complaint fails to allege any protected conduct in which he was engaged. Compl. [DE-1] ¶¶ 1-7. While Morgan alleges that he uses the Brittany Woods common areas for his own enjoyment or exercise, neither is linked to a disability or is asserted to be an activity that is or should be protected because of that disability. Id. ¶¶ 3, 5. Moreover, the complaint does not allege that Pearce was aware of this activity or of Morgan's disability generally. Id. ¶¶ 1-7. In fact, there is no allegation that Pearce took adverse action against Morgan at all, much less because of his disability or a protected activity he was engaged in because of it. Id.
E. Statute of Limitations
When it appears on the face of the complaint that the limitations period has run, a defendant may properly assert a statute of limitations defense through a Rule 12(b)(6) motion to dismiss. Goodman v. Praxair, Inc., 494 F.3d 458, 464 (4th Cir. 2007); Dean v. Pilgrim's Pride Corp., 395 F.3d 471, 474 (4th Cir. 2005). The FHA provides that a party may file an action claiming a violation of the statute “not later than 2 years after the occurrence or the termination of an alleged discriminatory housing practice.” 42 U.S.C. § 3613(a)(1)(A) (2023). Computation of the statute of limitations period does not include any time during which an administrative proceeding was pending with respect to a complaint or charge based on the discriminatory housing practice unless the action arose from breach of a conciliation agreement. Id. § (a)(1)(B). In this case, with no administrative proceeding to toll the relevant time period, the critical date for evaluating whether the statute of limitations period was satisfied is the date the complaint was filed, January 13, 2023 [DE-1].
Morgan's complaint specifically mentions two sequences of events involving Pearce: a 2019 incident that culminated with Morgan being taken away by ambulance, and the “October 16” and “November 17” interactions surrounding the drainage hole. Compl. [DE-1] ¶¶ 6-7. Given the uncertainty surrounding the October and November dates, it is not clear on the face of the complaint that the limitations period for these alleged incidents has run. Thus, dismissing these claims on statute of limitations grounds at this stage is inappropriate. See Goodman, 494 F.3d at 466. However, the 2019 incident decidedly falls outside of the two-year limitations period regardless of the specific date the event took place; therefore, dismissal of that claim as time-barred is warranted. See id. at 464.
See notes 3 & 4 regarding the October and November dates mentioned in the complaint.
ii. The HOA Defendants' Motion to Dismiss
The HOA Defendants argue that Morgan's claims must be dismissed under Rule 12(b)(6) because he has failed to plead any cause of action upon which relief can be granted under the FHA, and that, in the alternative, the complaint should be dismissed under Rules 12(b)(2), (4), and (5) of the Federal Rules of Civil Procedure. With respect to Rule 12(b)(6), the HOA Defendants contend that (1) the complaint is time-barred by the statute of limitations; (2) Morgan has not alleged a claim based upon disparate treatment or intentional discrimination; (3) the complaint does not plausibly allege that the HOA Defendants' conduct had a disparate impact on disabled residents of the community; and (4) Morgan has not plausibly alleged that the HOA Defendants failed to reasonably accommodate his disability. Defs.' Mem. [DE-28] at 4-9. The HOA Defendants also argue that Defendant Towne Properties, LLC (NC) should be dismissed for lack of personal jurisdiction, insufficient process, and insufficient service of process, because the entity was improperly named on the summons in this action, and the mistake has never been corrected. Id. at 9-12. Morgan asserts that he properly pleaded sufficient facts to state a plausible FHA claim. Pl.'s Resp. [DE-41] at 1. He does not address the jurisdictional or service of process arguments.
A. Rules 12(b)(2), (4), and (5)
Before a federal court may exercise personal jurisdiction over a defendant, the procedural requirement of service of summons must be satisfied. Omni Cap. Int'l, Ltd. V. Rudolf Wolff & Co., Ltd., 484 U.S. 97, 104 (1987). Service of summons is “the procedure by which a court having venue and jurisdiction of the subject matter of the suit asserts jurisdiction over the person of the party served.” Id. (quoting Miss. Publ'g Corp. v. Murphree, 326 U.S. 438, 444-15 (1946)). Consequently, before a court may exercise personal jurisdiction over a defendant, there must be more than notice to the defendant and a constitutionally sufficient relationship between the defendant and the forum-there also must be a basis for the defendant's amenability to service of summons. Id. In other words, absent consent, there must be authorization for service of summons on the defendant. Id.
Service of process in a federal action is covered generally by Rule 4 of the Federal Rules of Civil Procedure. Rule 4 outlines the form of the summons; specifically, it requires that a valid summons contain the name of the court and the parties, be directed to the defendant, state the name and address of the plaintiff or plaintiff's attorney, state the time within which the defendant must appear and defend, notify the defendant that a failure to appear and defend will result in a default judgment against the defendant for the relief demanded, be signed by the clerk, and bear the court's seal. Id. (a)(1). The Rule also stipulates that a valid summons must be served upon the defendant along with a copy of the complaint to effectuate service unless the defendant chooses to waive the service requirements. Id. (c)(1)-(d). Since the sufficiency of process and service of process concern the court's jurisdiction, consideration of materials outside the pleadings, such as affidavits, is appropriate. Freeman v. HKA Enters. of S.C., LLC, 2022 WL 3705020 at *3, n.7 (E.D. N.C. Aug. 26, 2022) (citing Dimet Proprietary, Ltd. v. Indus. Metal Protectives, 109 F.Supp. 472, 475 (D. Del. 1952)).
In this case, a review of the available external documents is revealing. On March 3, 2023, a court clerk issued a summons addressed to Towne Properties, LLC (NC). [DE-10]. However, as the HOA Defendants' motion attests, the entity registered to do business in North Carolina with a name closest to that listed in the summons--Towne Properties, LLC-was administratively dissolved in 2016. Defs.' Mem. [DE-28], Ex. A (Certificate of Administrative Dissolution, State of North Carolina, Department of the Secretary of State). Talis Management, LLC, doing business as Towne Properties, is the proper name of the entity as it exists today. Id., Ex. B (Assumed Business Name Certificate). Morgan does not appear to have issued a summons to Talis Management, LLC at any point. [DE-10]. Rather, the only summons Morgan has issued to Defendant Towne Properties, LLC (NC) is addressed to an entity that does not exist. Id.
At face value, this defect may seem fatal. However, the Fourth Circuit has held that “[a]s a general rule the misnomer of a corporation in a notice, summons ... or other step in a judicial proceeding is immaterial if it appears that [the corporation] could not have been, or was not, misled.” United States v. A.H. Fischer Lumber Co., 162 F.2d 872, 873 (4th Cir. 1947). Other courts have also found that “amendment is preferable to dismissal when a party has been misnamed.” Ross v. CNAC (Smart Fin.), 2013 WL 1858560, at *3 (W.D. N.C. Mar. 27, 2013), recommendation adopted, 2013 WL 1858589 (W.D. N.C. May 2,2013); see also Roberts v. Michaels, 219 F.3d 775, 777-78 (8th Cir. 2000) (describing as legal error district court's “failfure] to consider the well-recognized distinction between a complaint that sues the wrong party, and a complaint that sues the right party by the wrong name.”); Coastal Neuro-Psychiatric Assocs., P.A. v. Onslow Cnty. Hosp. Auth., 607 F.Supp. 49, 50 (E.D. N.C. 1985) (denying motion to dismiss based on misnaming of defendant). Here, there is no reason to believe that the HOA Defendants were in any way misled or injured by the defective summons. As their own motion confirms, Talis Management, LLC assumed operations after Towne Properties, LLC was administratively dissolved. Defs.' Mem. [DE-28], Exs. A & B. There is no suggestion that the HOA Defendants were unaware of which entity Morgan attempted to name in this lawsuit from its commencement, nor do they claim not to have had notice of the suit.
To the extent the HOA Defendants argue that service of process was inadequate because of the misnomer in the summons, that contention also fails. Generally, the technical requirements of service should be construed liberally if the defendant had actual notice of the pending suit. Karlsson v. Rabinowitz, 318 F.2d 666, 668-69 (4th Cir. 1963). And while “the rules are there to be followed, and plain requirements for the means of effectuating service may not be ignored,” Armco, Inc. v. Penrod-Stauffer Bldg. Sys., Inc., 733 F.2d 1087, 1089 (4th Cir. 1984), outright dismissal for inadequate service of process is inappropriate “unless otherwise a party's rights would be seriously prejudiced or no reasonably conceivable means of acquiring jurisdiction over the defendant remains.” Connell v. Adams, 2023 WL 2914856 at *6 (M.D. N.C. Apr. 12, 2023) (quoting Miree v. United States, 490 F.Supp. 768, 776 (N.D.Ga. 1980)). This is not to suggest that Morgan's attempt at service is adequate merely because the HOA Defendants had actual notice of the lawsuit. See Scott v. Md. State Dep't of Lab., 673 Fed.Appx. 299, 305 (4th Cir. 2016) (unpublished). However, dismissal in this case is not warranted because of the misnomer for two reasons: (1) it is possible for the court to direct counsel for the HOA Defendants to assist Morgan, a pro se plaintiff, in properly effectuating service, see Connell, 2023 WL 2914856 at *6, and moreover (2) there are numerous remaining grounds for dismissal, as discussed below.
B. Briefing Exhibits
In support of Morgan's opposition to the HOA Defendants' motion he filed a collection of supplemental documents supporting his claims (including handwritten notes, receipts, judicial opinions excerpts, various correspondence, and documents from past legal actions), Ex. 1; photographs illustrating his grievances in the Brittany Woods community, Ex. 2; and a CD containing various supporting documents not found in Exhibit 1, Ex. 3 [DE-41-1, -41-3]. Additionally, on October 31, 2023, November 17, 2023, and November 29, 2023, Morgan submitted a collection of photographs to the court, though it is unclear whether these documents were associated with a particular motion or response. [DE-66, -70, -71]. As explicated supra, the court may not consider any of these documents because they do not give rise to the legal rights Morgan asserts and are not integral to the complaint, nor do they amend it. See supra § III(i)(A). Accordingly, these exhibits are not properly considered in evaluating whether the complaint should be dismissed.
At the pleading stage, to prevail on an FHA claim, a plaintiff must assert that they are a member of a protected class and that they suffered adverse treatment as a result. See supra § III(i)(D). The plaintiff must also meet the minimal burden of alleging facts that at least raise an inference of discriminatory motivation. Id. Here, the complaint does not plausibly allege disparate treatment because of disability. To begin with, while Morgan alleges that the HOA Defendants were aware of his disabilities, the complaint fails to highlight any specific statements or acts by the HOA Defendants that reflect a discriminatory animus. Compl. [DE-1] ¶¶ 1-7. For example, Morgan asserts that the HOA Defendants have “made fun of, made light, conspired, refused to address, created barriers, fined (un equally: other members, have stated ‘my fines, and fees were dropped.' I have replied, not mine, I HAVE PAIDD [sic] OVER 4577.00u$ IN FEES, FINES, AND INTEREST, SINCE I HAVE OWNED 6804 Daltrey Court.” Id. ¶ 3. However, Morgan does not assert that any of these actions are related to, much less because of, Morgan's disability, and this general trend prevails throughout the complaint. Id. ¶¶ 1-7. Consequently, the complaint does not plausibly suggest an inference of discriminatory motivation, as required under the FHA. Nevertheless, the following subsections analyze various adverse actions raised in the HOA Defendants' motion to determine whether Morgan has plausibly alleged such conduct in his complaint, bearing in mind the previous conclusion that Morgan has failed to sufficiently plead membership in a protected class. See supra § III(i)(B).
1. Disparate Treatment/Intentional Discrimination
Discriminatory behavior can include both conduct and statements by a party to a protected class member. See supra § III(i)(D). A protected class member must also plead that the party's actions directly reflected an underlying discriminatory attitude and directly influenced the challenged housing decision. Id. In the instant case, where in the light most favorable to Morgan one might suppose a discriminatory act could have taken place, there are few details in the complaint tying such conduct to a protected characteristic held by Morgan. Compl. [DE-1] ¶¶ 17. For example, the complaint mentions that “the defendants have made fun of, made light, conspired, refused to address, created barriers” and unequally fined Morgan as compared to other Brittany Woods residents. Id. ¶ 3. Beyond these bald factual assertions, though, there are no details supporting or substantializing the allegations (including the relevant dates or time periods of these events), nor does the complaint tie the HOA Defendants' alleged conduct to Morgan's disability. Id. The complaint simply states that the HOA Defendants have been aware of Morgan's documented disabilities for quite some time. Id. Even if this is true, though, the mere fact that Morgan has a disability would not render the HOA Defendant's actions discriminatory without plausible allegations supporting a finding of disparate treatment. See Connolly v. Lanham, 2023 WL 4932870 at *4 (D. Md. Aug. 2, 2023) (“[T]he analysis at this stage turns on whether the plaintiff has plausibly alleged facts that, if taken as true, allow the Court to draw a reasonable inference of intentional, but-for [ ] discrimination”) (quoting Brown v. Harford Bank, 2022 WL 657564, at * 11 (D. Md. Mar. 4, 2022)).
2. Disparate Impact
As previously described, at the pleading stage, the fate of a disparate impact claim rests on whether the plaintiff has alleged facts showing a robust causal connection between the defendant's challenged policy and disparate impact on the protected class. See supra § III(i)(D). Here, the complaint does not identify any of the HOA Defendants' specific policies or practices. Compl. [DE-1] ¶¶ 1-7. Nor does the complaint allege that any of the HOA Defendants' policies or practices have disproportionately impacted protected class members. Id. At most, the complaint suggests that the HOA Defendants' decisions to collect fees and perform routine maintenance have disproportionately impacted Morgan as compared to other Brittany Woods residents, but it does not allege that these decisions have had anything to do with Morgan's disability or have impacted other disabled residents and guests. Id. ¶¶ 3-7. In this regard, the complaint does not allege any causal connection, much less a robust one. Therefore, it does not plausibly plead a disparate impact claim under the FHA.
3. Failure to Reasonably Accommodate
As previously detailed, the FHA requires an accommodation for disabled people if the accommodation is “(1) reasonable and (2) necessary (3) to afford handicapped persons equal opportunity to use and enjoy housing.” Bryant Woods Inn, Inc. v. Howard Cnty., Md, 124 F.3d 597, 603 (4th Cir. 1997); see supra § III(i)(D)(2). In the instant case, however, there is no identifiable accommodation Morgan requested from the HOA Defendants, so there is no way to walk through the multifactor analysis. Compl. [DE-1] ¶¶ 1-7. On a charitable reading, the complaint suggests that Morgan requested the HOA Defendants and their representatives not to construct a drainage hole on property belonging either to Layden Pearce or the Brittany Woods community. Id. ¶¶ 5-7. Yet even viewed in the light most favorable to Morgan, the complaint simply does not plead that this supposed accommodation would have been reasonable and necessary to afford handicapped persons equal opportunity to use and enjoy their townhomes.
4. Statute of Limitations
As explained supra, when it appears on the face of the complaint that the limitations period has run, a defendant may properly assert a statute of limitations defense through a Rule 12(b)(6) motion to dismiss. See supra § III(i)(E). The statute of limitations for FHA violations is 2 years, and the critical date for determining the limitations period in this case is January 13, 2023. See id. Notably, the complaint lists only three rough time periods throughout: “October 16,” “November 17,” and “2019.” Id. All other allegations against the HOA Defendants do not specify a particular time or provide enough detail to ascertain one. Compl. [DE-1] ¶¶ 1-7. Thus, it is clear from the face of the complaint that Morgan's claims regarding the 2019 incident are time-barred. See Goodman v. Praxair, Inc., 494 F.3d 458, 464 (4th Cir. 2007). However, dismissal of Morgan's other claims on these grounds-where it is not clear whether the statute of limitations has run-is premature at this stage. See id. at 466.
IV. Conclusion
For the reasons stated above, it is recommended that Defendant Pearce's motion to dismiss should be GRANTED; the HOA Defendants' motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure should be GRANTED; and Morgan's motion for reconsideration should be DENIED AS MOOT.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on the parties. You shall have until Tuesday, December 19, 2023, to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his or her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g, 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D. N.C.
If you do not file written objections to the Memorandum and Recommendation by the foregoing deadline, you will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, your failure to file written objections by the foregoing deadline may bar you from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins, 766 F.2d 841, 846-47 (4th Cir. 1985).