Boswell v. Gumbaytay

Filing 153

MEMORANDUM OPINION AND ORDER that Ms. Boswell's Renewed Motion for Default Judgment against Mr. Bahr 92 is GRANTED and that Ms. Boswell HAVE and RECOVER from Defendant Matthew W. Bahr $25,000 in actual damages, jointly and severally with Defendant Jamarlo K. GumBayTay. Signed by Honorable William Keith Watkins on 6/1/09. (Attachments: # 1 Civil Appeals Checklist)(djy, )

IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION Y O L A N D A M. BOSWELL, P la in tif f , v. J A M A R L O K. GUMBAYTAY, et al., D e f e n d a n ts. ) ) ) ) ) ) ) ) )

CASE NO. 2:07-CV-135-WKW[WO]

M E M O R A N D U M OPINION AND ORDER: D e fa u lt Judgment Against Defendant Matthew W. Bahr T h e orders entered today have disposed of all matters concerning Defendant Jamarlo K . GumBayTay's ("GumBayTay") liability. Remaining is the issue of Defendant Matthew W . Bahr's ("Bahr") liability. This opinion addresses Mr. Bahr's liability. For the reasons to follow, Ms. Boswell's Motion for Summary Judgment (Doc. # 92) as it pertains to the c la im s against Mr. Bahr will be construed as a Renewed Motion for Default Judgment, and th a t renewed motion will be granted. I. BACKGROUND Some background on the procedural posture of this case as pertains to Mr. Bahr is h e lp f u l. Upon motion of Plaintiff Yolanda M. Boswell ("Boswell"), the Clerk of the Court e n te re d Mr. Bahr's default on June 29, 2007, for his failure to answer or otherwise defend th is action during its then four-and-a-half-month pendency. (Doc. # 21.) Thereafter, on July 1 7 , 2009, Mr. Bahr retained an attorney (Doc. # 29), who the same date filed a motion to h a v e the entry of default set aside (Doc. # 30). That motion was denied for the reasons set

out in the court's Order entered on October 12, 2007. (Doc. # 44.) In the same Order, Ms. B o s w e ll's two motions for an entry of default judgment against Mr. Bahr (Docs. # 24, 36) w e re denied as prematurely-filed. (Doc. # 44, at 10-11.) As explained in that Order, the p ro p e r procedure when confronted with a default judgment in an action involving multiple d e f e n d a n ts with closely related defenses is to delay the entry of default judgment until the re s o lu tio n of the claims of the other defendants. (Doc. # 44, at 11.) Later, on July 18, 2008, w ith Mr. GumBayTay's fate in this litigation not yet decided, Ms. Boswell filed a motion for s u m m a ry judgment as to her claims against Mr. Bahr and Mr. GumBayTay. (Doc. # 92.) The summary judgment motion as to Mr. Bahr's liability has not yet been addressed, but will b e now. I I. STANDARD OF REVIEW W h ile not addressed by Ms. Boswell, the threshold issue is whether resolution of Mr. B a h r's liability should be decided under the rules governing default judgments or summary ju d g m e n ts. The case law admittedly is sparse, but it is existent. In Phillips Factors Corp. v . Harbor Lane of Pensacola, Inc., 648 F. Supp. 1580 (M.D.N.C. 1986), where the plaintiff f ile d a motion for summary judgment against a defendant who was in default, the court found th a t the "appropriate procedure for plaintiff to follow [was] a default judgment pursuant to F e d .R .C iv .P . 55(b)(2)." Id. at 1583 (brackets added). "Summary judgment would be an in a p t procedural vehicle because with respect to [the defaulting defendant] issues have not b e e n actually litigated but established by default from the defendant's failure to appear." Id.;

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see also id. at 1582 (discussing the distinctions between a default judgment and a summary ju d g m e n t and describing them as "two very different types of judgments"); accord H a r le y v ille Mut. Ins. Co. v. Vanover, No. 05-5048, 2006 WL 374765, at *1 (W.D. Ark. Feb. 8 , 2006). Following Phillips Factors, the reasoning of which is sound, the court finds that the ju s t resolution is to construe Ms. Boswell's Motion for Summary Judgment (Doc. # 92) as it pertains to the claims against Mr. Bahr as a Renewed Motion for Default Judgment. Accordingly, the court has before it the evidence submitted in support of that motion (see D o c . # 93), as well as the evidence submitted in support of Ms. Boswell's previously-filed, b u t denied, motions for default judgment (Docs. # 24, 36). The procedure for obtaining a default judgment is outlined in Rule 55 of the Federal R u le s of Civil Procedure. Rule 55 requires that an entry of a default precede the entry of a ju d g m e n t by default. See Fed. R. Civ. P. 55(a), (b). After the entry of default by the clerk, w h e re the damages are not for a "sum certain," the plaintiff is required to "apply to the court" f o r an entry of a default judgment, pursuant to Rule 55(b)(2). That rule provides: If , in order to enable the court to enter judgment or to carry it into effect, it is n e c e s s a ry to take an account or to determine the amount of damages or to e s ta b lis h the truth of any averment by evidence or to make an investigation of a n y other matter, the court may conduct such hearings or order such references a s it deems necessary and proper and shall accord a right of trial by jury to the p a rtie s when and as required by any statute of the United States. F e d . R. Civ. P. 55(b)(2).

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Upon the entry of a default judgment, the complaint's "well pleaded" allegations, but n o t those pertaining to the amount of damages, are taken as true the same as if they had been p ro v e n by evidence. See Comdyne I, Inc. v. Corbin, 908 F.2d 1142, 1149 (3d Cir. 1990). And a defendant cannot later seek to contradict those allegations. See Nishimatsu Constr. C o ., Ltd. v. Houston Nat'l Bank, 515 F.2d 1200, 1206 (5th Cir. 1975).1 I I I . DISCUSSION T h e record reflects that Ms. Boswell has complied with the procedural requirements f o r obtaining a default judgment. She has secured an entry of default from the clerk based u p o n Mr. Bahr's failure to make an appearance in this action or otherwise offer a defense (D o c . # 21). See Fed. R. Civ. P. 55(a). Additionally, for the reasons to follow, the court fin d s that the well-pleaded allegations in the Complaint (Doc. # 1), as bolstered and s u p p le m e n te d by the evidence, demonstrate a satisfactory basis to hold Mr. Bahr liable to M s . Boswell on the claims alleged in the Complaint. Ms. Boswell does not claim that Mr. Bahr himself sexually harassed or retaliated a g a in s t her, in violation of the Fair Housing Act ("FHA"), 42 U.S.C. §§ 3601-3619. Rather, s h e seeks to hold Mr. Bahr vicariously liable for the discriminatory acts of Mr. GumBayTay. (Doc. # 93, at 23-24.) Ms. Boswell says that the relationship between Mr. Bahr (the owner a n d landlord of the North Gap Loop property that Ms. Boswell rented) and Mr. GumBayTay (th e property manager) is an agency relationship. Applying agency principles, Ms. Boswell

In Bonner v. City of Prichard, Ala., 661 F.2d 1206 (11th Cir. 1981) (en banc), the Eleventh Circuit adopted as binding precedent all decisions of the former Fifth Circuit.

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says that Mr. Bahr is strictly liable without fault for the sexual harassment carried out by Mr. G u m B a yT a y. T h a t the FHA allows for vicarious liability has long been settled. See Meyer v. H o lle y , 537 U.S. 280, 285 (2003). Meyer held that the "traditional principles of vicarious lia b ility" govern whether a principal may be held liable without fault under the FHA for the a c t i o n s of its agents. Id. at 290-91. "The Restatement § 1 specifies that the relevant

p rin c ip a l/a g e n c y relationship demands not only control (or the right to direct or control) but a ls o `the manifestation of consent by one person to another that the other shall act on his b e h a lf . . . , and consent by the other so to act.'" Id. at 286; see also United States v. H a b e r s h a m Props., Inc., 319 F. Supp. 2d 1366, 1375 (N.D. Ga. 2003) ("An agency re la tio n s h ip is established by `the manifestation of consent by one person to another that the o th e r shall act on his behalf and subject to his control, and consent by the other so to act.'" (q u o tin g Restatement (Second) of Agency § 1 (1958))). In Cleveland v. Caplaw Enterprises, 4 4 8 F.3d 518 (2d Cir. 2006), an FHA case applying federal-law agency principles, the S e c o n d Circuit explained: A g e n c y is a legal concept that depends on the existence of three elements: (1 ) "the manifestation by the principal that the agent shall act for him"; (2 ) "the agent's acceptance of the undertaking"; and (3) "the understanding of th e parties that the principal is to be in control of the undertaking. Id. at 522 (quoting Cabrera v. Jakabovitz, 24 F.3d 372, 385 (2d Cir. 1994), and citing R e sta te m e n t (Second) of Agency § 1 cmt. b (1958)). As to the third Cleveland element, "the c o n tro l asserted need not `include control at every moment; its exercise may be very 5

attenuated and, as where the principal is physically absent, may be ineffective.'" Id. Moreover, "the question whether an agency relationship exists is highly factual[.]" Id. Factors to consider include: [ T ]h e situation of the parties, their relations to one another, and the business in which they are engaged; the general usages of the business in question and th e purported principal's business methods; the nature of the subject matters a n d the circumstances under which the business is done. Id . O n c e an agency relationship is established, traditional vicarious liability rules g e n e ra lly make the principal vicariously liable for acts of his agents committed in the scope o f the agent's authority. See Meyers, 537 U.S. at 285 (citing Burlington Indus., Inc. v. E lle r th , 524 U.S. 742, 756 (1998) ("An employer may be liable for both negligent and in te n tio n a l torts committed by an employee within the scope of his or her employment.")). But, it is the more likely case that an agent's sexual harassment of a tenant falls outside the s c o p e of his authority. Cf. Burlington Indus., 524 U.S. at 758 ("[T]he general rule is that s e x u a l harassment by a supervisor is not conduct within the scope of employment."). "When a party seeks to impose vicarious liability based on an agent's misuse of delegated authority," id . at 759-60, the aided-in-the-agency-relation rule set out in the Restatement (Second) of A g e n c y provides the "appropriate form of analysis," id. at 760. That rule provides that "`[a] m a s te r is not subject to liability for the torts of his servants acting outside the scope of their e m p lo ym e n t, unless . . . the servant . . . was aided in accomplishing the tort by the existence

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of the agency relation.'"2 Burlington Indus., 524 U.S. at 758 (quoting Restatement (Second) A g e n c y § 219(2)). And in Habersham Properties, applying the Restatement (Second) of A g e n c y in an FHA discrimination case, the court found that the company that managed an a p a rtm e n t complex on behalf of the owner was the owner's agent and could be held liable f o r the discriminatory conduct of the management company's employees. 319 F. Supp. 2d a t 1376; Richards v. Bono, No. 5:04cv484, 2005 WL 1065141, at *7 (M.D. Fla. May 2, 2005) (M r. Bono's capacity as "owner, property manager, and maintenance supervisor" enabled h im to "use[] his key to enter the [tenant's] residence, sometimes under the guise of making re p a irs [ ,]" and to threaten eviction. As such, his capacity as owner and as Mrs. Bono's agent a id e d in the perpetration of his unlawful conduct."). In light of the foregoing principles, the issue of whether Mr. Bahr can be held liable f o r Mr. GumBayTay's FHA violations depends first on whether Mr. GumBayTay was s e rv in g as Mr. Bahr's agent. There is ample evidence that, at all times pertinent to this la w s u it,3 Mr. Bahr expected Mr. GumBayTay to act on his behalf and that Mr. GumBayTay d id so with respect to the rental management of Mr. Bahr's properties. Those management

The Burlington Industries Court distinguished this type of strict liability from negligent supervision, which requires that the principal knew or should have known of the agent's harassment. 524 U.S. at 759. The business relationship between Mr. GumBayTay and Mr. Bahr began at some point prior to October 1, 2006, when Mr. Bahr began using the property management services of Guest Services (for whom Mr. Bahr understood Mr. GumBayTay worked) for a number of properties, including the North Gap Loop house rented by Ms. Boswell. (Bahr Dep. 25, 88, 95, 148-49.) Mr. GumBayTay managed Mr. Bahr's properties both independently and as an employee of Guest Properties. (Bahr Dep. 17-18, 26, 77, 108-09, 129, 141-42, 146, 148, 151.)
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duties included locating tenants, handling repairs and maintenance, collecting rent, and h a n d lin g evictions. (GumBayTay Dep. 65, 83, 126-27, 143; Bahr Dep. 26, 30-31, 34, 50, 8 4 -8 6 , 106, 116, 129.) This expectation is bolstered by the fact that Mr. Bahr lived in O rla n d o , Florida (Bahr Dep. 11, 13), and seldom checked on his properties in Montgomery, A la b a m a (Bahr Dep. 22, 38, 71, 116; see also Bahr Dep. (describing himself as an out-ofs ta te "passive investor")). Rather, he was dependent upon Guest Properties and, in

p a rtic u la r, Mr. GumBayTay, to tend to matters surrounding the rental and repair of the p ro p e rtie s . Further confirmation that Mr. Bahr expected Mr. GumBayTay to act for him is th a t as a general matter tenants were not provided with Mr. Bahr's telephone number or a d d re s s (Bahr Dep. 60, 125, 144), but rather tenants were to contact Mr. GumBayTay on any m a tte rs pertaining to the rental agreement or premises. (GumBayTay Dep. 460; Bahr Dep. 6 0 .) Indeed, Mr. Bahr never had any direct contact with his tenants. (Bahr Dep. 22-23, 60, 6 2 .) There also is sufficient evidence that Mr. Bahr exercised control over Mr. G u m B a yT a y, notwithstanding Mr. Bahr's physical absence in Montgomery, Alabama. Mr. G u m B a yT a y understood that his actions were subject to approval and control by Mr. Bahr. (GumBayTay Dep. 145.) Mr. GumBayTay, for example, testified that changes in the rent a m o u n t were subject to approval by Mr. Bahr (GumBayTay Dep. 132), and Mr. Bahr c o n f irm e d that Mr. GumBayTay needed his authorization to alter a tenant's rent (Bahr Dep. 6 5 -6 6 ). In particular, Mr. Bahr testified that Mr. GumBayTay asked him for approval for Ms.

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Boswell's rent. (Bahr Dep. 67.) Mr. GumBayTay also needed authorization from Mr. Bahr to make repairs exceeding $75.00. (GumBayTay Dep. 134-135; Bahr Dep. 96, 96-97, 99.) Mr. Bahr testified that he spoke to Mr. GumBayTay over the telephone or via email at least " o n c e every couple of weeks," and sometimes twice a week (Bahr Dep. 36), and that Mr. B a h r had authority to instruct Mr. GumBayTay as to which repairs to make, what rent to c h a rg e , how to handle deposits, and whether to evict a tenant. (Bahr Dep. 112, 146-48, 1555 6 .) Finally, there is evidence that Mr. GumBayTay held himself out as Mr. Bahr's agent. See Cabrera, 24 F.3d at 387 (holding oneself out as an agent of the principal "can help e s ta b li s h that that individual himself believed that he was acting on another's behalf and u n d e r another's control"). For example, Mr. GumBayTay signed Ms. Boswell's lease under th e section reserved for "Landlord," next to the words, "Jamarlo K. GumBayTay, Agent." (Exs. D & R to Doc. # 93.) In rental notices sent to Ms. Boswell, "Elite Enterprises" (which w a s Mr. GumBayTay's business) was stamped in the space reserved for "Landlord." (Exs. J , N & S to Doc. # 93.) Also, in a letter to tenants, Mr. GumBayTay indicated that he would h a n d le repairs "on behalf of" their "landlords." (Bahr Dep. 97-98; Ex. X to Doc. # 93.) And, a t no time during his deposition, did Mr. Bahr deny an agency relationship with Mr. G u m B a yT a y. Based upon the foregoing facts, the court finds that, with the consent of Mr. Bahr, Mr. G u m B a yT a y acted on his behalf in the management of Mr. Bahr's properties, including the

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North Gap Loop premises at issue in this litigation, and that Mr. GumBayTay was subject to Mr. Bahr's control, even if that control was not always exercised. There, thus, was an a g e n c y relationship between Mr. Bahr and Mr. GumBayTay such that Mr. Bahr can be held v ic a rio u s ly liable for the unlawful conduct of Mr. GumBayTay. This brings to the forefront th e question of whether there are facts establishing a basis for finding vicarious liability. The c o u rt finds that there are. T h e complaint and evidence establish that Mr. GumBayTay demanded sexual favors f ro m Ms. Boswell as a condition for not raising the rent and that, when she refused his d e m a n d s , he charged her an additional $100 in rent, tried to evict her, and refused to make n e c e s s a ry repairs to the rental premises. The allegations and evidence outlining Mr. G u m B a yT a y's conduct constitute clear violations of the FHA, as alleged in Ms. Boswell's c o m p la in t (Compl. 5-6).4

Here is a sampling of Mr. GumBayTay's undisputed sexual propositions. As a condition for not raising the rent $100, Mr. GumBayTay expressed to Ms. Boswell that he expected her to "come and see [him]" and "come and spend a little time with [him]." (Doc. # 97-2, at 4; media file "Call 6.") If, however, she did not need his "favors," she would need to bring him $550 for the monthly rent. (Doc. # 97-2, at 7- 8; media file "Call 6.") He advised that "[s]ometimes a woman has to do what a woman has to do in order to feed her family and live a comfortable lifestyle for her and her family." (Doc. # 97-2, at 8-9; media file "Call 6.") He proposed that "[o]ne weekend a month [they] c[ould] go out of town and do some things. . . . [She did not have to stay in town and] just get up under [him] all the time" (Doc. # 97-2, at 9, 11; media file "Call 6.") At another time, he said, "And you're gonna start trying to work on your next month rent this month. . . . You gonna work on that sugar daddy account this week or next week be good for you?" (Doc. # 93-18, at 3; media file "Call 2."), and he said, "[R]ent won't be $550; it'll be $450. I'll take care of $550. . . . I'll take care of $100 of that . . . if I could see you every once in a while." (Doc. # 97-3, Tr. of Recorded Conversation Between Boswell and GumBayTay on Oct. 17, 2006 2-3; Audio Recordings of Conversations Between Boswell and GumBayTay, media file "Call 3.") When Ms. Boswell asked Mr. GumBayTay whether he was saying that she had to have sex with him or else pay $550 in rent, Mr. GumBayTay stated that he did not want to "put it that blunt," because it "sound[ed] like harassment." (Doc. # 97-3, at 8; media file "Call 3.") However, he stated that Ms. Boswell should "let [her] conscience be [her] guide." (Doc. # 97-3, at 8; media file "Call 3.") This and other evidence is

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As stated, Ms. Boswell seeks to hold Mr. Bahr vicariously liable for the discriminatory a c ts of Mr. GumBayTay by virtue of their agency relationship. (Doc. # 93, at 23-24.) While s e x u a l harassment of and retaliation against tenants obviously were not within Mr. G u m B a yT a y's scope of his employment,5 the court finds that all of Mr. GumBayTay's acts w e re committed in his capacity as the property manager for Mr. Bahr and that it was the a g e n c y relationship that facilitated Mr. GumBayTay's conduct. For instance, Mr.

G u m B a yT a y's position as property manager gave him control as to the amount of rent c o lle c te d from Ms. Boswell and whether repairs would be made to her residence. By the la tte r, Mr. GumBayTay was in a position to constructively evict Ms. Boswell by foregoing n e c e s s a ry repairs required for habitability. His position also essentially gave him unfettered a c c e s s to communicate with and personally visit Ms. Boswell. In other words, Mr.

G u m B a yT a y used his power as property manager as a vehicle through which to perpetrate h is unlawful conduct by refusing repairs, raising the rent, and attempting to evict Ms. B o s w e ll as consequences for Ms. Boswell's refusal to provide sexual favors. Based upon th e well-pleaded allegations, as supplemented by the evidence, the court finds that vicarious lia b ility attaches to Mr. Bahr for Mr. GumBayTay's conduct. In an accompanying order, the

discussed at length in Ms. Boswell's memorandum of law (Doc. # 93) accompanying her Motion for Summary Judgment (Doc. # 92). Perhaps it could be argued, as Ms. Boswell does, that Mr. GumBayTay's attempts to require Ms. Boswell to pay $550 a month in rent (once he realized she would not supply sexual favors) and to evict her when she would not pay $550 were done at least in part to benefit Mr. Bahr, as Mr. Bahr expected to receive $550 for the rented unit and Mr. Bahr would be the beneficiary if Ms. Boswell could have been made to pay more than her lease specified. In light of the court's finding, the court need not decide whether any of Mr. GumBayTay's unlawful actions fell within the scope of his authority.
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court has found that Ms. Boswell has proven that, as a result of Mr. GumBayTay's FHA v io la tio n s , she is entitled to $25,000 in actual damages, pursuant to 42 U.S.C. § 3613(c)(1). Mr. Bahr is jointly and severally liable with Mr. GumBayTay for this amount.6 T h is leaves the question of punitive damages. Relying on Kolstad v. American Dental A ss o c ia tio n , 527 U.S. 526, 541 (1999), Ms. Boswell also says that Mr. Bahr should be held v ic a rio u s ly liable for punitive damages. Punitive damages may be awarded in FHA cases, pursuant to 42 U.S.C. § 3613(c)(1). Punitive damages are available when a defendant's conduct is "motivated by evil motive or in te n t" or shows a "reckless or callous disregard of, or indifference" to a plaintiff's rights. Smith v. Wade, 461 U.S. 30, 56 (1983) (delineating standard under 42 U.S.C. § 1983); see a ls o Badami v. Flood, 214 F.3d 994, 997 (8th Cir. 2000) (applying the Smith standard in an F H A case). Kolstad, a Title VII case, endorsed Smith as helpful to "an understanding of the m e a n in g of the terms `malice' and `reckless indifference,'" terms which set the standard for a n award of punitive damages under Title VII. Kolstad, 527 U.S. at 535. Kolstad also is in s tru c tiv e in this FHA case. A significant point in Kolstad is that "`malice' or `reckless in d if f e re n c e ' pertain[s] to the [defendant's] knowledge that it may be acting in violation of f e d e ra l law, not its awareness that it is engaging in discrimination." Id. (brackets added).

On the issue of damages, the court finds that "all essential evidence is already of record," Sec. Exch. Comm'n, 420 F.3d 1225, 1232 & n.13 (11th Cir. 2005), and that, therefore, a further hearing is not required, see Fed. R. Civ. P. 55(b)(2).

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While actual malice is not required for an award of punitive damages, see id. at 536, th e re is an "intent" requirement. That intent requirement, "at a minimum, require[s]

re c k le ss n e s s in its subjective form," defined as a "`subjective consciousness' of a risk of in ju ry or illegality and a `criminal indifference to civil obligations.'" Id. (quoting Smith, 461 U .S . at 37). Employing the subjective standard in the Title VII context, the Kolstad Court s a id that "an employer must at least discriminate in the face of a perceived risk that its a c tio n s will violate federal law to be liable in punitive damages." Id. Also, in Kolstad, the S u p re m e Court imposed an additional limitation on an employer's vicarious liability for p u n itiv e damages: "[I]n the punitive damages context, an employer may not be vicariously lia b le for the discriminatory employment decisions of managerial agents where these d e c is io n s are contrary to the employer's `good-faith efforts to comply with Title VII.'" Id. a t 545 (citation omitted); see Habersham Props., 319 F. Supp. 2d at 1376 n.9 (finding that K o ls ta d 's "Title VII analysis for limitation on punitive damages should be used for the F H A " ). And in Miller v. Kenworth of Dothan Inc., 277 F.3d 1269 (11th Cir. 2002), applying K o ls ta d 's principles in a Title VII case, the Eleventh Circuit reiterated that "`punitive d a m a g e s will ordinarily not be assessed against employers with only constructive knowledge' o f harassment; rather, punitive damages may only be considered in cases where the `d isc rim in a tin g employee was high[ ] up the corporate hierarchy' or where `higher m a n a g e m e n t countenanced or approved [his] behavior.'" Id. at 1280.

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Applying these principles and after careful review of Mr. Bahr's deposition testimony a n d other evidence, the court finds that Mr. Bahr is not liable for punitive damages. The u n d i s p u t e d evidence establishes that Mr. Bahr did not have actual notice of Mr. G u m B a yT a y's unlawful conduct. Mr. Bahr, who was physically absent from Montgomery, A la b a m a , did not witness any of Mr. GumBayTay's conduct, and it is undisputed that Ms. B o s w e ll did not complain to Mr. Bahr about Mr. GumBayTay's harassment or retaliation. (Bahr Dep. 22.) Also, at no time did Mr. Bahr receive any complaints from any other tenant a b o u t Mr. GumBayTay. (Bahr Dep. 61-62.) It is noteworthy also that Mr. Bahr never was n o tif ie d that Ms. Boswell's unit needed repairs. (Bahr Dep. 121.) Ms. Boswell, however, points out that Mr. Bahr admitted that he learned of her a lle g a tio n s against Mr. GumBayTay when she filed the instant lawsuit in February 2007. (Bahr Dep. 123-24.) While Ms. Boswell is correct that, after the filing of this lawsuit, Mr. B a h r continued to use Mr. GumBayTay to manage his properties (Bahr Dep. 127, 129) w ith o u t subjecting Mr. GumBayTay to any repercussions or admonishment, there simply is a lack of evidence as to the requisite mental state required to sustain the imposition of p u n itiv e damages against Mr. Bahr. Mr. Bahr's deposition testimony confirms his absence o f preexisting knowledge of the allegations; indeed, he was "surprised" at the allegations lo d g e d against Mr. GumBayTay. (Bahr Dep. 124.) Mr. Bahr questioned Mr. GumBayTay a b o u t the allegations, but given Mr. Bahr's three-year business relationship with Mr. G u m B a yT a y and the fact that Mr. GumBayTay had managed more than sixty of Mr. Bahr's

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tenants, without complaints from those tenants, Mr. Bahr expressed that he believed Mr. G u m B a yT a y when Mr. GumBayTay said he was "innocent" of the accusations. (Bahr Dep. 1 4 1 -4 2 ; see also Bahr Dep. at 125-26.) While Ms. Boswell takes issue with Mr. Bahr's f a ilu re to pointedly deal with what then were accusations, evidence is lacking from which it can be inferred that Mr. Bahr's response was "motivated by evil motive or intent." Smith, 4 6 1 U.S. at 30. Nor can it be said based upon this record that Mr. Bahr displayed a " `c rim in a l indifference to civil obligations.'" Kolstad, 527 U.S. at 536 (quoting Smith, 461 U .S . at 37). Based upon Mr. Bahr's deposition testimony, it cannot be inferred that Mr. Bahr w o u ld have or should have perceived a risk that his failure to admonish Mr. GumBayTay or te rm in a te the business relationship would violate federal law. See id. There also is no e v id e n c e that Mr. Bahr countenanced or approved the alleged sexual harassment or Mr. G u m B a yT a y's failure to make necessary repairs to Ms. Boswell's rental residence. To the c o n tra ry, the court finds that all of the acts of harassment and retaliation were solely the acts o f Mr. GumBayTay. In sum, Ms. Boswell has failed to show that Mr. Bahr acted with the c u lp a b le state of mind required for the imposition of punitive damages under the FHA. IV. CONCLUSION A c c o rd in g ly, it is ORDERED that Ms. Boswell's Renewed Motion for Default J u d g m e n t against Mr. Bahr (Doc. # 92) is GRANTED and that Ms. Boswell HAVE and R E C O V E R from Defendant Matthew W. Bahr $25,000 in actual damages, jointly and s e v e ra lly with Defendant Jamarlo K. GumBayTay.

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An appropriate judgment will be entered. DONE this 1st day of June, 2009. /s/ W. Keith Watkins UNITED STATES DISTRICT JUDGE

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