Opinion
3:21-cv-01032-YY
05-17-2024
WILMORE LEE WASHINGTON, III, Plaintiff, v. FARMINGTON ESTATES OWNERS ASSOCIATION, an Oregon corporation; NORTHWEST COMMUNITY MANAGEMENT, LLC, an Oregon company; SARA BERG; MICHAEL ORRANTIA; KATIE PATTERSON; BRIAN HESS; JENNIFER LAYTON; THE MANAGEMENT TRUST; NATALIE SEIBEL, Defendants.
FINDINGS AND RECOMMENDATIONS
Youlee Yim You United States Magistrate Judge
FINDINGS
Plaintiff owns a condominium in Farmington Estates, which is governed by defendant Farmington Estates Owners Association (“HOA”). In 2021, plaintiff filed this lawsuit against the HOA, the individual defendants who served on the HOA's board of directors, and Northwest Community Management, LLC. Plaintiff alleges that defendants racially discriminated against him in violation of the federal Fair Housing Act (“FHA”) by failing to respond to his complaints about enforcement of the community's rules and regulations in the same way they responded to non-African American homeowners' complaints, preventing him from taking actions that could have reduced the problems he experienced with his neighbors, and directed racially derogatory insults and language toward him. The background facts underlying this dispute were summarized in more detail in the court's earlier disposition of the original defendants' motion to dismiss, and they are incorporated here. See Findings and Recommendations (July 13, 2022) 3-6, ECF 55; Order (Jan. 19, 2023), ECF 59.
Plaintiff purchased the condominium in December of 2019, resided there until September of 2021, and currently rents it out. First Am. Compl. 2, 4, 37, ECF 101.
In July of 2023, plaintiff filed a Third Amended Complaint in which he named Natalie Seibel as a defendant for the first time. Seibel was plaintiff's neighbor, and in May of 2022, Seibel became a member of the HOA board. See Fourth Am. Compl. at 3, ECF 101; Reply 6, ECF 108. In August of 2023, Seibel was served with a copy of the Third Amended Complaint and filed a motion to dismiss the claims against her. ECF 91. In plaintiff's briefing in response to the motion to dismiss, he asserted a number of additional facts regarding Seibel, and the court gave plaintiff leave to file another amended complaint that incorporated those additional facts. Order (Oct. 19, 2023), ECF 100. Plaintiff then filed a Fourth Amended Complaint, ECF 101, and Seibel filed the currently pending motion to dismiss all of the claims against her. See Fourth Am. Compl. 42-45, ECF 101; Mot. Dismiss 2, ECF 102. Primarily, Seibel argues that plaintiff's claims against her are time-barred by the FHA's two-year statute of limitations. Mot. Dismiss 810, ECF 102. Alternatively, Seibel asserts that plaintiff's complaint does not allege sufficient facts to support any plausible claim for discrimination, hostile housing environment, or retaliation against her. Id. at 11-18.
As explained below, plaintiff's allegations against Seibel are not time-barred, and Seibel's motion should be denied as to plaintiff's claims for discrimination or disparate treatment under the FHA and granted as to all other claims that plaintiff asserts against her.
I. Motion to Dismiss Standard
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) requires the court to examine whether the complaint contains sufficient factual allegations to show that the plaintiff is entitled to relief. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Fed.R.Civ.P. 8(a)(2)). While a complaint need not contain detailed factual allegations, “formulaic recitation[s] of the elements of a cause of action” or “naked assertion[s]” devoid of “further factual enhancement” are not sufficient. Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 557 (2007)). In the absence of a cognizable legal theory or sufficient facts to support a cognizable legal theory, the claim should be dismissed. Taylor v. Yee, 780 F.3d 928, 935 (9th Cir. 2015). To survive a motion to dismiss, the plaintiff must plead facts sufficient for the “court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 663.
In evaluating a motion to dismiss, the court must accept the allegations of material fact as true and construe those allegations in the light most favorable to the non-moving party. ParksSch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). In addition to the factual allegations in the complaint, the court may consider documents that are attached to or incorporated by reference in the complaint, where the parties do not contest the authenticity of those documents, as well as matters capable of judicial notice. Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005).
II. Statute of Limitations
Seibel's primary argument in support of the motion to dismiss is that plaintiff's claims against her are time-barred under the FHA's two-year statute of limitations. Mot. Dismiss 8-10, ECF 102 (citing 42 U.S.C. §3613(a)(1)(A)). Plaintiff's Third Amended Complaint was filed on July 30, 2023, and as a result, Seibel argues, any claims that accrued before July 30, 2021, are time-barred. However, the analysis is not so straight-forward because, on April 26, 2023, plaintiff filed a motion for leave to amend to add claims against Seibel. ECF 69. Thus, the question is whether plaintiff's claims against Seibel were “filed” for statute of limitations purposes when the motion for leave to amend was filed (and were therefore, at least as a general matter, timely) or whether they were “filed” for such purposes only after the court granted plaintiff leave to amend and plaintiff formally filed the Third Amended Complaint in July of 2023.
The court raised this question with the parties at a hearing on Seibel's motion to dismiss; neither party provided any controlling Ninth Circuit law on point. Many decisions, including one from this district, have held that “[w]hen a plaintiff seeks to add a new defendant in an existing action, the date of the filing of the motion to amend constitutes the date the action was commenced for statute of limitations purposes.” Villanueva v. Liberty Acquisitions Servicing,LLC, 215 F.Supp.3d 1045, 1057 (D. Or. 2016) (quoting Rothman v. Gregor, 220 F.3d 81, 96 (2d Cir. 2000)); see also Arredondo v. Locklear, No. 2:03-cv-00156-KDM-LCS, 2004 WL 7337868, at *2 (D.N.M. June 15, 2004) (same); Wheeler v. Kolek, No. 7:16-cv-07441-PMH-AEK, 2020 WL 6726947, at *11 (S.D.N.Y. Nov. 16, 2020) (“Where, as here, ‘a plaintiff moves for leave to amend to add claims within the limitations period and attaches a proposed amended complaint to the motion, the claims are timely.' ”); Buller Trucking Co. v. Owner Operator Indep. Driver Risk Retention Grp., Inc., 461 F.Supp.2d 768, 776-77 (S.D. Ill. 2006) (“[The settled rule in both federal and state court is that a complaint is deemed filed as of the time it is submitted to a court together with a request for leave to file the amended pleading.”).
A major rationale for this rule is that “a party has no control over when a court renders its decision regarding the proposed amended complaint.” Moore v. State of Ind., 999 F.2d 1125, 1131 (7th Cir. 1993). Thus, “the submission of a motion for leave to amend, properly accompanied by the proposed amended complaint that provides notice of the substance of those amendments, tolls the statute of limitations, even though technically the amended complaint will not be filed until the court rules on the motion.” Id.; see also Mayes v. AT & T Info. Sys., Inc., 867 F.2d 1172, 1173 (8th Cir. 1989) (concluding that an “amended complaint is deemed filed within the limitations period” when a motion for leave to amend is filed before the expiration of the statute of limitations but the entry of the court order and the filing of the amended complaint occur after the limitations period has expired) (citing cases from the Fifth Circuit and several district courts); Hardesty v. Sacramento Metro. Air Quality Mgmt. Dist., 935 F.Supp.2d 968, 980-81 (E.D. Cal. 2013) (noting the lack of Ninth Circuit guidance and following Mayes in concluding that a claim is timely if it is included in a motion to amend filed before the statute of limitations expires).
These cases are persuasive. Here, plaintiff filed the motion for leave to amend on April 26, 2023. ECF 69. Plaintiff did not include a redlined copy of the proposed amended complaint as required by newly-instituted Local Rule 15-1(b). The court directed plaintiff via email to file a proposed amended complaint, which plaintiff did on May 7, 2023. See ECF 71. Thus, under the rationale of the cases cited above, any claim against Seibel that accrued after May 7, 2021, is timely.
III. Fair Housing Act Claims
A. Disparate Treatment
Plaintiff asserts claims for “discrimination” and “harassment,” which this court previously construed as claims arising under 42 U.S.C. § 3604(b). That provision of the FHA “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 or facilities in connection therewith, because of race, color, religion, sex, familial status, or national origin.' ” The Comm. ConcerningCmty. Improvement v. City of Modesto, 583 F.3d 690, 711 (9th Cir. 2009) (quoting 42 U.S.C. § 3604(b)). An FHA discrimination claim can be brought in relation to pre-acquisition conduct- for example, alleging that a landlord refused to rent to individuals because they belonged to one of the statute's protected classes. 42 U.S.C. § 3604(a). The Ninth Circuit and many other circuits have held that the FHA also “reaches post-acquisition discrimination.” Id. at 713; see also Georgia State Conf. of the NAACP v. City of LaGrange, Georgia, 940 F.3d 627, 632 (11th Cir. 2019); Webb v. United States Veterans Initiative, 993 F.3d 970, 973 (D.C. Cir. 2021). Thus, the FHA not only requires that individuals be given the opportunity to secure housing in a non-discriminatory manner, but further “guarantees their right to equal treatment once they have become residents of that housing.” Hous. Rts. Ctr. v. Sterling, 404 F.Supp.2d 1179, 1192 (C.D. Cal. 2004)
“As a general matter, FHA claims are evaluated under the burden-shifting framework of the Title VII discrimination analysis and may be brought under theories of both disparate treatment and disparate impact.” Id. To bring a disparate treatment claim, the complaint must allege facts sufficient to show (1) the plaintiff is a member of a class protected under the FHA, (2) the defendant subjected the plaintiff to different terms, conditions, or privileges because of protected status, and (3) as a result of that discriminatory conduct, the plaintiff suffered a distinct and palpable injury. See Wilson v. Guardian Mgmt., LLC, 383 F.Supp.3d 1105, 1108 (D. Or. 2019); Ohana v. Marriott, No. 2:14-cv-04274-SVW-MRW, 2016 WL 11760169, at *5 (C.D. Cal. Nov. 8, 2016).
There is no dispute that plaintiff is a member of a protected class. See Fourth Am. Compl. 7, ECF 101. Seibel asserts that plaintiff has failed to plead sufficient facts to show that she “engaged in discriminatory conduct which violated the FHA, or that such conduct was undertaken because of plaintiff's race.” Mot. Dismiss 12, ECF 102.
Plaintiff's allegations against Seibel largely describe a dispute between the two, while they were neighbors, about a “rat problem” that developed in the neighborhood. Fourth Am. Compl. 19, ECF 101. Plaintiff alleges that sometime in February or April of 2021, Seibel “had issues with [p]laintiff feeding birds” in his yard because it was apparently attracting rats to the neighborhood. Id.; see also Resp. 9, ECF 106 (asserting the rat problem first arose in February of 2021). Plaintiff and Seibel blamed each other for the rat problem, and their interactions and disagreements over the issue became terse. Fourth Am. Compl. 19, ECF 101 (alleging that Seibel “became overly mean and rude”). Seibel apparently “reported” plaintiff for “feeding rats (instead of birds),” and plaintiff alleges that the manner in which the HOA board tried to address the problem-by sending out notices to all homeowners to stop feeding the birds, and then hiring an exterminator-was not entirely satisfactory to him and seemed to favor Seibel's version of events over his. Id. at 20-23. Plaintiff alleges that Seibel continued to report him for “feeding rats,” which he viewed as harassment because he believed that the rats were caused by “Seibel's unmaintained backyard.” Id. at 24. On June 9, 2021, Seibel allegedly “started throwing lynched and brutally whipped dead rats” into plaintiff's yard. Id. at 27; Resp. 12, ECF 106. Seibel flatly denies throwing a “lynched” rat onto plaintiff's property, and asserts that the allegation is not plausible. Mot. Dismiss 13, ECF 102. Plaintiff's complaint does not provide a more specific description of the rat's condition. When the court inquired at the hearing what plaintiff meant by a “lynched” rat, he stated that he found a rat with something tied around its neck in his yard. Plaintiff could not specify what was on the rat's neck and how it was applied to the rat's neck.
These incidents allegedly occurred while Seibel was plaintiff's neighbor, and plaintiff has not provided any controlling authority that an FHA claim may be brought against a neighbor for a dispute about a neighborhood livability issue involving facts such as those alleged here. See Bloch v. Frischholz, 587 F.3d 771, 780 (7th Cir. 2009) (explaining that plaintiffs “generally cannot sue under [the FHA] for isolated acts of discrimination by other private property owners” because “[n]either the FHA's text nor its legislative history indicates an intent to make “quarrels between neighbors . . . a routine basis for federal litigation”) (quoting Halprin v. Prairie Single Fam. Homes of Dearborn Park Ass'n, 388 F.3d 327, 329 (7th Cir. 2004)). Thus, to the extent plaintiff alleges any FHA claim against Seibel while she was his neighbor, his claims fail.
Also, some of the allegations regarding the “rat problem” occurred before May 7, 2021, and would be time-barred.
However, plaintiff's allegations against Seibel are not confined to the “rat problem.” After plaintiff moved out of the property in September of 2021, Seibel became a member of the HOA board in May of 2022. Fourth Am. Compl. 4, ECF 101; Reply 6, ECF 108. Then, according to plaintiff, Seibel began “selective enforcement and targeted weekly inspections” against plaintiff and another African American family in the neighborhood, and regularly ignored repeated violations of the HOA's rules for non-African American families in the neighborhood. Fourth Am. Compl. 38-39, ECF 101. Specifically, plaintiff alleges that Seibel and others engaged in “selective enforcement” and “targeted weekly inspections” and imposed “egregious fines and penalties” for trash can violations only on plaintiff and another African American family, and ignored similar and other violations by non-African American homeowners, including operating a car business and making “major repairs and upgrades.” Id. These facts are sufficient to raise a plausible claim that Seibel treated plaintiff differently because of his race, and thus plaintiff has adequately alleged an FHA discrimination claim against her on this basis.
After the hearing on the motion, the court posed additional questions to plaintiff about these fines, and he responded with more specific factual details, including that the Board imposed daily fines against him without providing a warning letter as the relevant bylaws required.
B. Disparate Impact
Plaintiff does not allege facts that would support a disparate impact theory, and thus that claim is not discussed or analyzed here. See Sw. Fair Hous. Council, Inc. v. Maricopa Domestic Water Improvement Dist., 17 F.4th 950, 961 (9th Cir. 2021) (explaining that a disparate impact claim requires proof of “(1) the occurrence of certain outwardly neutral practices, and (2) a significantly adverse or disproportionate impact on persons of a particular type produced by the defendant's facially neutral acts or practices,” along with a showing of “robust causation” between the policy and a statistically significant adverse impact).
C. Hostile Housing Environment
“To state a hostile housing environment claim a plaintiff must allege that he was subjected to (1) unwelcomed (2) harassment that was (3) sufficiently severe or pervasive so as to interfere with or deprive the plaintiff of [the] right to use or enjoy” the home. West v. City &Cnty. of San Francisco, No. 3:21-cv-02370-EMC, 2022 WL 1556415, at *8 (N.D. Cal. May 17, 2022) (citing Salisbury v. Hickman, 974 F.Supp.2d 1282, 1290 (E.D. Cal. 2013)). Whether an environment is sufficiently hostile or abusive depends on the totality of the circumstances, “including the frequency of the discriminatory conduct; its severity; whether it is physically threatening, or humiliating or a mere offensive utterance; and whether it unreasonably interferes with a tenant's living conditions.” Id. (citing Hall v. Meadowood Ltd. P'ship, 7 Fed.Appx. 687, 689 (9th Cir. 2001); 24 C.F.R. § 100.600(a)(2)(i)).
Plaintiff has not alleged facts sufficient to state a hostile housing environment claim against Seibel. Plaintiff's allegations regarding selective enforcement of trash can rules are not the type of severe, patently offensive, abusive, threatening, humiliating, and pervasive conduct that is indicative of a hostile housing environment.
D. Retaliation
Plaintiff also brings claims for “retaliation” and “retaliatory harassment,” which are construed as claims arising under 42 U.S.C. § 3617. Fourth Am. Compl. 44-45, ECF 101. Section 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 [§ 3604].” 42 U.S.C. § 3617. To state a claim for retaliation under section 3617, a plaintiff must allege facts showing (1) the plaintiff was engaged in protected activity, (2) the plaintiff suffered an adverse action, and (3) there was a causal link between the two. Brown v. City of Tucson, 336 F.3d 1181, 1192 (9th Cir. 2003); see also Dean v. Jones, No. 3:09-cv-01102-AC, 2010 WL 1873089, at *3 (D. Or. Mar. 2, 2010), report and recommendation adopted, 2010 WL 1838962 (D. Or. Apr. 30, 2010) (citing Walker v. City of Lakewood, 272 F.3d 1114, 1128 (9th Cir. 2001)).
“Protected activity covers many types of actions but must relate to a plaintiff exercising rights granted or protected by the [Fair Housing Act].” Macon v. Proud Ground Org., No. 3:20-cv-01660-HZ, 2021 WL 3354157, at *6 (D. Or. July 30, 2021) (citing 42 U.S.C. § 3617) (internal quotation marks omitted). “Examples of ‘protected activity' include advocating for fair housing rights, reporting discrimination to a public body, requesting a reasonable accommodation for a disability, or filing a complaint with a landlord or housing organization.” Id. (collecting cases).
Plaintiff has not stated a claim for retaliation against Seibel because he does not allege any causal connection between a “protected activity” and Seibel's conduct against him. It was Seibel, not plaintiff, who seems to have initiated the complaint about the rat problem sometime in February or April of 2021. See Resp. 9, ECF 106 (asserting that Seibel “demanded [that plaintiff] stop feeding birds in his backyard . . . in February 2021”). Thus, the only “protected activity” that could arguably be the basis of plaintiff's retaliation claim is the filing of this lawsuit in July of 2021. Plaintiff alleges that after Seibel became a board member in May of 2022, she began selectively targeting him for HOA rules violations. This gap of time, which is approximately ten months long, is too large to infer that Seibel's actions were caused by a retaliatory animus against plaintiff for filing this suit. See Pratt v. Hawai'i, Dep't of Pub. Safety, 308 F.Supp.3d 1131, 1147 (D. Haw. 2018) (noting that “time ranging from 42 days up to three months has been found sufficient to establish temporal proximity” and collecting cases showing that four months or longer is generally not sufficient to demonstrate causation).
RECOMMENDATIONS
Defendant Natalie Seibel's Motion to Dismiss [102] should be denied as to plaintiff's claim against Seibel for disparate treatment under the Fair Housing Act, and granted as to all other claims against her.
SCHEDULING ORDER
These Findings and Recommendations will be referred to a district judge. Objections, if any, are due Monday, June 03, 2024. If no objections are filed, then the Findings and Recommendations will go under advisement on that date.
If objections are filed, then a response is due within 14 days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendations will go under advisement.
NOTICE
These Findings and Recommendations are not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any Notice of Appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of a judgment.