Opinion
C.A. No. S08C-08-005 RFS.
Submitted: September 9, 2009.
October 14, 2009.
Upon Defendants' Motion to Dismiss. Granted in Part. Denied in Part.
Paula C. Witherow, Esquire, Wilmington, DE.
Maria J. Poehner, Esquire, Wilmington, DE.
Dear Counsel:
I have before me a motion to dismiss filed by the Board of Directors of Sea Colony Recreational Association, Inc. ("the Board"), Patrick Davis and Lisa Magee. Defendant Davis was the General Manager of ResortQuest, the managing agent of the Association during the times relevant to this action. Defendant Magee was the president of the Association during the relevant times. These three Defendants argue that the Complaint should be dismissed as to them because Plaintiffs failed to exhaust their administrative remedies under the Delaware Fair Housing Act ("the Act"). That is, Plaintiffs did not name these Defendants in the administrative complaint.
Facts . Plaintiffs own a condominium in the Sea Colony housing complex in Bethany Beach, Delaware. Since 2006 Plaintiffs have sought from Defendants a parking space on the ocean side of the complex because Mr. Aburrow allegedly cannot safely enjoy the recreational facilities if he has to cross the road. It is uncontested that Plaintiffs' verbal and written requests have been ignored or denied by these Defendants.
Standard of review . W hen a motion to dismiss is based on a challenge to personal jurisdiction, the plaintiff has the burden to show a basis for the Court's jurisdiction. This burden is met by a prima facie showing based on the pleadings and/or affidavits that jurisdiction exists. The Board is not a proper party. In its Reply to Defendants' motion, Plaintiffs concede that the Board of Directors is not a proper defendant to this lawsuit. Thus the motion to dismiss is Granted as to the Board of Directors.
Plummer Co. Realtors v. Crisafi, 533 A.2d 1242, 1244-45 (Del. Super.Ct.).
Id.
Defendants Magee and Davis are proper parties. Defendants Magee and Davis argue that they are not proper parties to this action because they were not named in the amended administrative complaint or report. Plaintiffs argue that the Superior Court action is distinct from the administrative investigation. The Court agrees.
Plaintiffs elected to pursue judicial determination rather than an administrative hearing, which is their prerogative under the Act. See § 4612(a) and (b). The Commission authorized the action and the Attorney General's Office pursued it on the Commission's behalf, pursuant to § 46 12(n). Once the lawsuit was filed, all parties received notice under Superior Court rules and will now have the opportunity to participate in discovery and all other aspects of the suit. Nothing in either the DFHA or FFHA prevents a plaintiff from including new parties if a court action is filed. This is a new action with new parties, but it is still a public enforcement action under the DFHA as provided for in § 4612(a), not an enforcement action by private persons, as provided for in § 4613.
Conclusion. The Court concludes that Plaintiffs have borne their burden of proving that the Court has jurisdiction over Lisa Magee and Patrick Davis. Defendants' motion to dismiss as to Defendant Magee and Defendant Davis is Denied. IT IS SO ORDERED.
Pending before me is Defendants' motion to dismiss for failure to state a claim upon which relief may be based, pursuant to Super. Ct. Civ. R. 12(b)(6). The action is brought by Plaintiff State Human Relations Commission, a state agency charged with administering the Delaware Fair Housing Act ("the Act"). The Complaint is filed on behalf of Plaintiffs Paul Aburrow and Robyn Rosenfeld-Aburrow, and the parties do not dispute that Mr. Aburrow is a disabled person within the meaning of the Act. For the reasons stated below, the motion to dismiss is Denied. Facts. Plaintiffs own a condominium in the Sea Colony housing complex in Bethany Beach, Delaware. They have a designated parking spot near their condominium for day-today purposes, which w as assigned to them because o f Mr. Aburrow `s disability. Since 2006, Plaintiffs have sought from Defendants a second designated parking space on the opposite side of the complex because Mr. Aburrow allegedly cannot safely enjoy the recreational facilities on that side of the road, specifically the pool and the ocean. It is uncontested that Plaintiffs' requests have been ignored or denied.
Title 6 Del. C. § 4600 — § 4619.
Issues. Defendants argue first that the Act pertains to housing practices but not to parking places and second that Sea Colony Recreational Association ("the Association") is not a proper party to this action.
Standard of review . In evaluating a motion to dismiss under Rule 12 (b)(6), the Court must assume all well-pleaded allegations in the Complaint to be true. The Court will not dismiss a claim unless the plaintiff would not be entitled to recover under any reasonably conceivable set of circumstances susceptible of proof. The com plaint must be without merit as a matter of fact or law to be dismissed. The Court will draw every reasonable factual inference in the non-moving party's favor. Plaintiffs have stated a cause of action . Defendants argue that the Act pertains to issues related to the sale or rental of housing and that the designation of a parking place does not fall within the ambit of the Act. On the most literal level, this may be plausible. It is also true that the Act is to be liberally construed and that parking can cause problems for people with disabilities. Furthermore, while § 4601(a) refers generally to sales and leases, § 4603(b)(2) makes it unlawful to discriminate against a person in the "sale or rental of a dwelling." The Act gives a broad definition to "dwelling," including, inter alia, "the public and common use areas, " which could conceivably include parking spaces. Case law exists supporting Plaintiffs' assertion that issues relating to a parking space can be recognized under the Federal Fair Housing Act, which is the equivalent of our own. The Court finds that the Complaint states a claim that is susceptible of proof under the Act, and that Paragraphs 19 through 21 suffice for purposes of general notice-giving. Defendants' motion is therefore Denied. The Association is a proper party . The Association argues that it has always been a separate entity that has nothing to do with sale or rental of homes at Sea Colony, and is therefore not a proper defendant in this action. Plaintiffs argue that the Association has the authority to manage all common areas including parking spaces and also elects the board of directors. Plaintiffs also argue that the former and current Board presidents denied Plaintiffs' request for an additional parking space, actions which involve them in the alleged discrimination. Under § 4603, unlawful practices include "a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such [disabled] person equal opportunity to use and enjoy a dwelling." While Delaware case law on the DFHA is thin, federal case law involving condominium associations does exist. Bas ed on the record in its current form, the Court cannot conclude that the Association is not a proper party to this action.
Nix v. Sawyer, 466 A.2d 407, 410 (Del. Super. Ct. 1983) (citing Laventhol, Krekstein, Horwath Horwath v. Tuckman, 372 A.2d 168 (Del. 1976)).
Id.
Diamond State Tel. Co. v. University of Delaware, 269 A.2d 52 (Del. 1970).
Ramunno v. Cawley, 705 A.2d 1029, 1036 (Del. 1998).
§ 4603.
§ 4601(b).
See, e.g., Shapiro v. Cadman Towers, 51 F.3d 328 (2d Cir. 1995).
§ 4602(11).
See, e.g., Jankowski Lee Assoc. v. Cisneros, 91 F.3d 891 (7th Cir. 1996); Shapiro v. Cadman Towers, Inc., 51 F.3d 328 (2d Cir. 1995).
Newark Landlord Assoc. v. City of Newark, 2003 WL 21448560, at *6, n. 33 (Del. Ch.).
Spanish Tiles, Ltd. v. Hensey, 2005 WL 3981740 (Del. Super.) (observing that the task of general notice-giving is assigned to pleadings, while narrowing and clarifying issues and facts is role of deposition discovery process).
Simovits v. Chanticleer Condominium Assoc., 933 F.Supp. 1394 N.D. Ill. 1996).
Conclusion. For all these reasons, Defendants' motion to dismiss is Denied. IT IS SO ORDERED.