Schwarz et al v. Board of Supervisors et al

Filing 62

ORDER granting 56 Motion to Strike; overruling 51 Plaintiffs' Objection; adopting 44 Report and Recommendation; granting, in part, and denying, in part, 22 Defendants Village Center Community Development District and Sumter Landing Co mmunity Development District's Motion to Dismiss; denying 23 Defendant Charters' Motion to Dismiss Amended Complaint. Second Amended Complaint due April 11, 2013. The Clerk of the Court is directed to update the Court docket to reflect the proper parties identified in the case style of this Order. Signed by Judge Marcia Morales Howard on 3/12/2013. (JW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION

LOUIS SCHWARZ, DORIS SCHWARZ,
JANICE HICKEY, THOMAS HICKEY,
BERNIE BROWN, ELIZABETH HOLST,
STEPHEN HOLST, JOANNA LANGLAIS,
FRANCIS LANGLAIS, PATRICIA SMART,
ROBERT SMART, RICHARD MCELWAIN,
BYRON ZIMMERMAN, SHIRLEY
ZIMMERMAN, JOHN WILSON, CHARLES
MARTIN, RANDALL WALKER, EVELYN
WALKER, MAUREEN OSGOOD,
CAROLE PAUL, MARY KAY PICKERING,
ANDREW ST. JOHN, KAREN RUSSELL,
CLARENCE RUSSELL, RICHARD
WOODS, LINDA WOODS, ROBERT
MCDEVITT, and LYNN STIRLING,
Plaintiffs,
vs.

Case No. 5:12-cv-177-Oc-34PRL

THE VILLAGE CENTER COMMUNITY
DEVELOPMENT DISTRICT, SUMTER
LANDING COMMUNITY DEVELOPMENT
DISTRICT, and THE VILLAGES CHARTER
SCHOOL, INC., d/b/a The Villages Lifelong
Learning College,
Defendants.
__________________________________/
ORDER1

THIS CAUSE is before the Court on Magistrate Judge Philip R. Lammens’ Report and
Recommendation (Doc. No. 44; Report) entered on November 21, 2012. In the Report, Judge

1

The Court has corrected the case style to reflect the parties in the Amended Complaint, and will direct
the Clerk of the Court to update the docket accordingly.

Lammens recommends that the motions to dismiss Plaintiffs’ First Amended Complaint (Doc.
No. 19; Amended Complaint) filed by Defendants Village Center Community Development
District and Sumter Landing Community Development District (“Districts”) (Doc. No. 22;
Districts’ Motion) and Defendant The Villages Charter School, Inc. (“Charter”) (Doc. No. 23;
Charter Motion) be denied, in part, and granted, in part. On December 12, 2012, Plaintiffs
filed Plaintiffs’ Objection to Magistrate Judge’s Report and Recommendation (Doc. No. 51;
Objection). Defendant Districts then filed a Response in Opposition to Plaintiffs’ Objection to
Magistrate Judge’s Report and Recommendation (Doc. No. 55; Response to Objection).
Although Defendants apparently voiced no objection to Plaintiffs filing a Motion to Strike (Doc.
No. 56; Motion to Strike) the Response to Objection as being untimely, Defendants later filed
a memorandum opposing the Motion to Strike (Doc. No. 57; Opposition to Motion to Strike).
Because the Court undertook its review of the Report before Defendants filed the Opposition
to Motion to Strike, and because consideration of the Response to Objection would not alter
the Court’s resolution of the pending motions, the Court will grant the Motion to Strike.
Turning to the Report, the Court “may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b). If no
specific objections to findings of fact are filed, the district court is not required to conduct a de
novo review of those findings. See Garvey v. Vaughn, 993 F.2d 776, 779 n.9 (11th Cir. 1993);
see also 28 U.S.C. 636(b)(1). However, the district court must review legal conclusions de
novo. See Cooper-Houston v. Southern Ry. Co., 37 F.3d 603, 604 (11th Cir. 1994); United
States v. Rice, No. 2:07-mc-8-FtM-29SPC, 2007 WL 1428615, at * 1 (M.D. Fla. May 14,
2007).

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Plaintiffs object to Judge Lammens’ recommendation that, with the exception of Plaintiff
Byron Zimmerman, Plaintiffs’ Count I claims for damages against the Districts under the
Americans With Disabilities Act (ADA) should be dismissed. In discussing the objection to
Count I, the Court will refer to the effected Plaintiffs as the “Objecting Plaintiffs.” In the Report,
Judge Lammens concludes that the Objecting Plaintiffs fail to state a claim for damages under
Count I against the Districts because they do not present sufficient allegations of intentional
discrimination for purposes of Rule 8, Federal Rules of Civil Procedure (Rule(s)). Specifically,
Judge Lammens finds that the Objecting Plaintiffs fail to allege “that any of them requested
an interpreter from the Districts or that such an accommodation request was denied by the
Districts.” Report at 7. In their Objection, the Objecting Plaintiffs submit that the Magistrate
Judge erred in recommending dismissal of their claims because he did not apply the futility
doctrine. See Objection at 3. They contend that the futility doctrine, under the ADA, does not
require each Plaintiff to specifically allege that he or she made an accommodation request and
that the request was denied. See id. Instead, the Objecting Plaintiffs suggest that “it is
sufficient for the discriminated party to allege that the covered entity has essentially foreclosed
the opportunity for reasonable accommodations under the ADA.” Id. Additionally, the
Objecting Plaintiffs draw the Court’s attention to the particular paragraphs in the Amended
Complaint which they believe “sufficiently alleged the existence of a discriminatory policy that
made all requests for accommodations futile.” Id. at 4.
Although not cited by the Objecting Plaintiffs, the Court finds some support for the
proposition that the futile gesture exception may be applicable in cases such as this. In

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Resnick v. Magical Cruise Co., Ltd., 148 F.Supp.2d 1298, 1302 (2001),2 the trial judge held
that the plaintiffs could avail themselves of the futile gesture exception if they had actual notice
that a person or organization did not intend to comply with ADA provisions. According to
Resnick, a plaintiff may have actual notice by either having “encountered discrimination or
having learned of the alleged violations through expert findings or personal observation.”
Resnick, 148 F.Supp.2d at 1302 (citing to Parr v. L & L Drive-Inn Rest., 96 F.Supp.2d 1065,
1081 (D. Haw. 2000)). Whether a plaintiff has the requisite actual notice to invoke the futility
doctrine is a fact specific inquiry to be determined from the evidence. Id. at 1303.
A review of the Amended Complaint reveals that the Objecting Plaintiffs have failed to
provide an adequate basis for the Court to assess the applicability of the futile gesture doctrine
even at the pleading stage. Indeed, the Objecting Plaintiffs made no attempt to plead futility
in the Amended Complaint. Of the 27 Objecting Plaintiffs who assert claims for damages in
Count I, only one, Louis Schwarz, comes close to attempting to allege a basis for the
application of the futile gesture doctrine. Schwarz’ allegation is found in paragraph 62 of the
Amended Complaint, which states that “months of discussion regarding the CDD’s
discriminatory policy continued to take place until on or about February 25, 2011, when the
District Manager, Janet Tutt, effectively notified Louis [Schwarz] that based on the advice of
her legal counsel, the CDD had no duty to provide accommodations to the Deaf in connection
to the CDD Services.” Amended Complaint at 19. Even if this allegation is sufficient to raise

2
“Although an unpublished opinion is not binding . . ., it is persuasive authority.” United States v. Futrell,
209 F.3d 1286, 1289 (11th Cir. 2000) (per curiam); see generally Fed. R. App. P. 32.1; 11th Cir. R. 36-2
(“Unpublished opinions are not considered binding precedent, but they may be cited as persuasive authority.”).

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the futile gesture doctrine as to Schwarz, without more, it is insufficient to invoke the doctrine
for the benefit of all of the Objecting Plaintiffs.
Additionally, the Court notes that in responding to the Districts’ Motion, see Plaintiffs’
Response to Districts’ Motion to Dismiss (Doc. No. 29; Response to Districts’ Motion), no
Plaintiff presented argument regarding the application of the futility doctrine. Instead, all
Plaintiffs argued that the allegations of the Amended Complaint “clearly spell out the most
recent incident” and “nothing in the federal pleading requirement [ ] impels the Plaintiffs to do
anything more.” Id. at 3. Although Plaintiffs referenced the futility doctrine in a footnote citing
to 42 U.S.C. § 12188(a)(1),3 they did not address the applicability of § 12188(a)(1) to this
action. Instead they made the conclusory observation that Plaintiffs are “invoking this right
given the systematic and categorical refusal to provide interpreters.” Id. at 3. However,
Plaintiffs failed to discuss how the conclusory allegations set forth in the Amended Complaint
were sufficient, even under a notice pleading standard, to invoke the futile gesture exception.
Moreover, the broad reference to the “systematic and categorical refusal” was insufficient to
address the question of whether or which Objecting Plaintiff had the “actual notice” necessary
to apply the futile gesture exception.
Plaintiffs Response to Districts’ Motion did not provide a basis for either the Defendants
or the Magistrate Judge to consider the applicability of the futility doctrine. As Plaintiffs did not
raise the argument of futility before the Magistrate Judge, this Court will not consider the newly
raised argument of futility in Plaintiffs’ Objection to the Report. Williams v. McNeil, 557 F.3d

3

As this particular provision derives from Title III, Public Accommodations and Services Operated by
Private Entities, of the ADA, the Court does not yet make a determination regarding its applicability to the Title
II, Public Services, claims involved in the instant case.
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1287, 1292 (11th Cir. 2009) (holding that a district court has discretion to decline to consider
a party's argument when that argument was not first presented to the magistrate judge).
Thus, given the absence of allegations in the Amended Complaint raising the futile gesture
doctrine, and the absence of argument in response to the Districts’ Motion, the Court declines
to speculate as to whether the Objecting Plaintiffs might sufficiently allege a claim for damages
under the ADA, and finds the Magistrate Judge’s recommendation that the claims in Count I
should be dismissed is due to be adopted. Nevertheless, the Court recognizes that in an
amended complaint, the Objecting Plaintiffs may be able to provide the necessary allegations
to invoke the futility doctrine, as such the Court will dismiss these claims without prejudice and
will allow Plaintiffs to file a second amended complaint.
As to Count III, all Plaintiffs object to Judge Lammens’ recommendation that their
claims for violations of the Fair Housing Act (FHA) be dismissed. In his Report, Judge
Lammens recommends dismissal of Count III “because Plaintiffs have not provided sufficient
facts (or law) to support a finding that the requested accommodation was necessary to afford
Plaintiffs an opportunity to use and enjoy their dwellings.” Report at 10. In their Objection,
Plaintiffs contend that the Magistrate Judge erred in determining that the Districts’ “services
were connected to community facilities and not the Plaintiffs’ dwellings.” Objection at 4.
However, Plaintiffs have misstated Judge Lammens’ Report with this contention, as Judge
Lammens only found that Plaintiffs failed to allege any connection of the services to Plaintiffs’
dwellings. Report at 10. Judge Lammens makes no recommendation regarding the existence
of a connection of the services to either community facilities or Plaintiffs’ dwellings because
there are not sufficient facts to do so. As with Count I, Count III lacks sufficient allegations in

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the Amended Complaint to support a claim. As such, the Court overrules Plaintiffs’ Objection
and finds that Count III is due to be dismissed, without prejudice.
Upon independent review of the file and for the reasons stated in the Magistrate
Judge’s Report, the Court will accept and adopt the legal and factual conclusions
recommended by the Magistrate Judge.
Accordingly, it is hereby ORDERED:
1.

The Motion to Strike Defendants Village Center Community Development
District and Sumter Landing Community Development District’s Response in
Opposition to Plaintiffs’ Objection to the Report and Recommendation (Doc. No.
56) is GRANTED.

2.

Plaintiffs’ Objection to Magistrate Judge’s Report and Recommendation (Doc.
No. 51) is OVERRULED.

3.

Magistrate Judge Philip R. Lammens’ Report and Recommendation (Doc. No.
44) is ADOPTED as the opinion of the Court, and Defendants’ Motions to
Dismiss Plaintiffs’ Amended Complaint (Doc. Nos. 22 and 23) are GRANTED,
in part, and DENIED, in part.
A.

With regard to Count I, Defendant Districts’ Motion to Dismiss Amended
Complaint is GRANTED, in that, with the exception of the claims of
Plaintiff Byron Zimmerman, the claims in Count I as to the remaining
Plaintiffs are DISMISSED, WITHOUT PREJUDICE.

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B.

With regard to Count III, Defendant Districts’ Motion to Dismiss Amended
Complaint is GRANTED, and the claims in Count III are DISMISSED,
without prejudice.

C.

Defendant Districts’ Motion to Dismiss Amended Complaint is otherwise
DENIED.

4.

Defendant Charters’ Motion to Dismiss Amended Complaint (Doc. No. 23) is
DENIED.

5.

Plaintiffs shall have up to and including April 11, 2013, to file a Second
Amended Complaint.

6.

The Clerk of the Court is directed to update the Court docket to reflect the
proper parties identified in the case style of this Order.

DONE AND ORDERED in Jacksonville, Florida, this 12th day of March, 2013.

i19
Copies to:
Counsel of Record
The Honorable Philip R. Lammens
United States Magistrate Judge

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