Intermountain Fair Housing Council v. CVE Falls Park, L.L.C.

Filing 47

MEMORANDUM DECISION AND ORDER denying 16 Motion for Summary Judgment; denying 22 Motion for Summary Judgment. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by cjm)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

INTERMOUNTAIN FAIR HOUSING
COUNCIL,
Case No. 2:10-cv-00346-BLW
Plaintiff,
MEMORANDUM DECISION
AND ORDER

v.
CVE FALLS PARK, L.L.C.,
Defendants.

INTRODUCTION
The Court has before it both parties’ motions for summary judgment. The Court
heard oral argument on July 6, 2011 and took the motions under advisement. For the
reasons explained below, the Court will deny both motions.
FACTUAL BACKGROUND
The plaintiff, Intermountain Fair Housing Council, learned of what it alleges are
discriminatory housing practices by the Defendant, CVE Falls Park, LLC, and its
employees, Eric and Tina Smithson, in early November 2008. An individual filed a
complaint with Intermountain suggesting she had been discriminated against by CVE
because of her handicap when she applied for an apartment at CVE’s Falls Park

MEMORANDUM DECISION AND ORDER - 1

Apartments. As a result, Intermountain conducted two separate telephonic tests to gather
evidence of the alleged discrimination.
On December 1, 2008, one of Intermountain’s testers, Ms. House, called the Falls
Park Apartments. Tina Smithson answered, and their conversation went in part as
follows:
. . . . Ms. House: The one bedroom, one bath was on the third floor?
Tina Smithson: Yes.
Ms. House: Okay. And what is the deposit?
Tina Smithson: It’s a two hundred and fifty dollar deposit, plus there’s a
one hundred dollar nonrefundable administration fee. And the application
fee is forty-five.
. . . . Ms. House: Okay. Now, I do have a service animal.
Tina Smithson: You do have a service animal?
Ms. House: Uh-huh.
Tina Smithson: Okay. Well . . . . , you have a form that you’re supposed to
fill out.
Ms. House: Well, I have a prescription.
Tina Smithson: Okay. That would be a nine hundred dollar deposit on the
dog. Is it a dog?
Ms. House: My service animal?
Tina Smithson: Yeah.
Ms. House: Yeah.
Tina Smithson: The dog or a cat. It would be nine hundred dollars on the
pet and then a hundred dollars nonrefundable on that.
Ms. House: With the doctor’s note, right?
Tina Smithson: Right.
Ms. House: All right. So, a nine hundred dollar deposit for my service
animal and a hundred nonrefundable, so . . . .
Tina Smithson: Right.
Nagy Aff. ¶¶ 8-10, Dkt. 32. Ms. Mabbutt administered Intermountain’s second test on the
Falls Park Apartments on February 25, 2009 via telephone, which went in part as follows:
. . . . Tina Smithson: At this time I don’t have any one bedrooms, but I do
have a two bed, one bath on the second floor for the same price, six-o-five.
MEMORANDUM DECISION AND ORDER - 2

. . . . Ms. Mabbutt: Okay. And then she [Ms. Mabbutt’s “mother”] has a
support animal, and do you have a policy on that?
Tina Smithson: Yeah. It’s a nine hundred dollar pet deposit.
Nagy Aff. ¶¶ 12-13, Dkt. 32.
Prior to administering the second test, on February 10, 2009, Intermountain filed
an administrative complaint against CVE with the United States Department of Housing
and Urban Development (“HUD”). But Intermountain withdrew its pending complaint on
April 30, 2009 after the parties failed to reach a conciliated settlement. It believed
seeking a judicial remedy would be more expeditious.
Therefore, on July 8, 2010, Intermountain filed a complaint in this Court alleging
violations by CVE of the Fair Housing Act, 42 U.S.C. §3601 et seq. (2006), (“FHA”) and
common law negligence. It also sought declaratory judgment, permanent injunctive relief
and damages for diversion of past and future resources, lost economic opportunity and
frustration of its mission.
LEGAL STANDARD
One of the principal purposes of the summary judgment “is to isolate and dispose
of factually unsupported claims . . . .” Celotex Corp. v. Catrett, 477 U.S. 317, 323-24
(1986). It is “not a disfavored procedural shortcut,” but is instead the “principal tool[ ] by
which factually insufficient claims or defenses [can] be isolated and prevented from
going to trial with the attendant unwarranted consumption of public and private
resources.” Id. at 327. “[T]he mere existence of some alleged factual dispute between
the parties will not defeat an otherwise properly supported motion for summary
MEMORANDUM DECISION AND ORDER - 3

judgment; the requirement is that there be no genuine issue of material fact.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).
The Court must be “guided by the substantive evidentiary standards that apply to
the case.” Liberty Lobby, 477 U.S. at 255. If a claim requires clear and convincing
evidence, the issue on summary judgment is whether a reasonable jury could conclude
that clear and convincing evidence supports the claim. Id.
When cross-motions for summary judgment are filed, the Court must
independently search the record for issues of fact. Fair Housing Council of Riverside
County, Inc. v. Riverside Two, 249 F.3d 1132, 1136 (9th Cir. 2001). The filing of crossmotions for summary judgment – where both parties essentially assert that there are no
issues of material fact – does not vitiate the court’s responsibility to determine whether
disputed issues of material fact are present. Id.
Statements in a brief, unsupported by the record, cannot be used to create
an issue of fact. Barnes v. Independent Auto. Dealers, 64 F.3d 1389, 1396 n.3 (9th
Cir. 1995). The Circuit “has repeatedly held that documents which have not had a
proper foundation laid to authenticate them cannot support a motion for summary
judgment.” Beyene v. Coleman Sec. Services, Inc., 854 F.2d 1179, 1182 (9th
Cir.1988). Authentication, required by Federal Rule of Evidence 901(a), is not
satisfied simply by attaching a document to an affidavit. Id. The affidavit must
contain testimony of a witness with personal knowledge of the facts who attests to
the identity and due execution of the document. Id.
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ANALYSIS
1.

FHA Legal Standard
The Ninth Circuit applies “Title VII discrimination analysis in examining Fair

Housing Act discrimination claims.” Gamble v. City of Escondido, 104 F.3d 300, 304
(9th Cir. 1997). “A plaintiff can establish a FHA discrimination claim under a theory of
disparate treatment or disparate impact.” Harris v. Itzhaki, 183 F.3d 1043, 1051 (9th Cir.
1999) (citing Gamble, 104 F.3d at 304-05). Intermountain’s allegations pertain to
disparate treatment. See Compl. ¶ 24-29.
“To bring a disparate treatment claim, the plaintiff must first establish a prima
facie case.” Harris, 183 F.3d at 1051. “[T]he prima facie case elements are: (1) plaintiff’s
rights are protected under the FHA; and (2) as a result of the defendant’s discriminatory
conduct, plaintiff has suffered a distinct and palpable injury.” Id.; see also Havens Realty
Corp. v. Coleman, 455 U.S. 363, 372 (1982). “Establishing the prima facie case affords
the plaintiff a presumption of discrimination.” Id.
“[T]he burden then must shift to the defendant to articulate some legitimate,
nondiscriminatory reason for the action. To accomplish this, the defendant is only
required to set forth a legally sufficient explanation.” Id. (citations omitted).
However, “[o]nce a prima facie case is established . . . summary judgment for the
defendant will ordinarily not be appropriate on any ground relating to the merits because
MEMORANDUM DECISION AND ORDER - 5

the crux of [the] dispute is the elusive factual question of intentional discrimination.”
Lowe v. City of Monrovia, 775 F.2d 998, 1009 (9th Cir. 1985). “When a plaintiff has
provided direct and circumstantial evidence of discriminatory intent, [it] has established a
prima facie case of disparate treatment and may be able to survive a motion for summary
judgment on that evidence alone.” Id. at 1008.
2.

Application to Intermountain
Whether a plaintiff is protected by the FHA – element one of Harris’ prima facie

discrimination case – is a function of its alleged injury from the defendant’s
discriminatory conduct – Harris’ element two. See Smith v. Pacific Properties & Dev.
Corp., 358 F.3d 1097, 1105 (9th Cir. 2004). Therefore, the Harris elements seem
redundant. More specifically, to have standing under the FHA, Intermountain must
“demonstra[te] [a] concrete and particularized injury giving [it] ‘a personal stake in the
outcome of the controversy.’” Id. (quoting Baker v. Carr, 369 U.S. 186, 204 (1962)).
There would seem to be little difference between an alleged “concrete and particularized
injury” (element one) and a “distinct and palpable injury” (element two).
Intermountain’s standing and its prima facie case derive from its alleged injury.
Such a relaxed standard aligns with Supreme Court and Ninth Circuit
interpretations of the FHA. Section 3602 defines an “‘[a]ggrieved person’ [as] any person
who (1) claims to have been injured by a discriminatory housing practice; or (2) believes
that such person will be injured by a discriminatory housing practice that is about to
occur.” 42 U.S.C. §3602(i). “‘Person’ includes one or more individuals, corporations,
MEMORANDUM DECISION AND ORDER - 6

partnerships, associations, labor organizations, legal representatives, mutual companies,
joint-stock companies, trusts, unincorporated organizations, trustees, trustees in cases
under Title 11, receivers, and fiduciaries.” 42 U.S.C. §3602(d). Accordingly, this circuit
cited the Supreme Court in holding that “the sole requirement for standing under the Act
is the ‘Article III minima of injury in fact’ [:] a plaintiff need only allege ‘that as a result
of the defendant’s [discriminatory conduct] [it] has suffered a distinct and palpable
injury.’” Harris, 183 F.3d at 1050 (quoting Havens Realty Corp. v. Coleman, 455 U.S.
363, 372 (1982)). The plaintiff “need not allege that [it] was a victim of discrimination.”
Id. at 1050 (citing Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 115 (1979)).
Rather, “any person harmed by discrimination, whether or not the target of the
discrimination, can sue to recover for [its] own injury.” Id. “‘This is true, for example,
even where no housing has actually been denied to persons protected under the Act.’” Id.
(quoting San Pedro Hotel Co., Inc. v. City of Los Angeles, 159 F.3d 470, 475-76 (9th Cir.
1998)).
Consequently, the Ninth Circuit has found organizational standing for a plaintiff
like Intermountain when it demonstrates a “personal stake” in the controversy by
showing “(1) frustration of its organizational mission; and (2) diversion of its resources
to combat the particular housing discrimination in question.” Smith, 358 F.3d at 1105.
First, Intermountain’s organizational mission “is to advance equal access to
housing for all persons without regard to race, color, sex, religion, national origin,
familial status, or disability.” Mabbutt Aff. ¶ 3, Dkt. 31. In Smith, the organizational
MEMORANDUM DECISION AND ORDER - 7

plaintiff’s mission included “helping eliminate discrimination against individuals with
disabilities by ensuring compliance with laws intended to provide access to housing.”
Smith, 358 F.3d at 1105. The court found that where “[p]art and parcel to this effort is
ensuring an adequate stock of accessible housing for” the disabled, “[a]ny violation of the
FHAA would therefore constitute a frustration of [the plaintiff’s] mission.” Id. (internal
quotations omitted). Therefore, frustration of Intermountain’s organizational mission
directly follows from evidence of housing discrimination. See Smith, 358 F.3d at 1105.
Secondly, the Smith court held that the costs of “promot[ing] awareness of – and
compliance with – [the FHA]” constituted a diversion of “scarce resources from other
efforts.” Id. at 1105-06. However, Intermountain “cannot manufacture the injury by
incurring litigation costs or simply choosing to spend money fixing a problem that
otherwise would not affect the organization at all.” La Asociacion de Trabajadores de
Lake Forest v. City of Lake Forest, 624 F.3d 1083, 1088 (9th Cir. 2010).
In its complaint, Intermountain estimated past and future diversion of resources,
lost economic opportunity and frustration of mission damages. Compl. Appendix A, ¶ 14, Dkt. 1. It also provided an affidavit by its executive director, Richard Mabbutt, that
reiterated the bases for these damage assertions: Intermountain “has had to devote
significant resources to identify, investigate, document and take action to correct the
Defendant’s conduct, including but not limited to the sponsoring of fair housing training
workshops in the region where the Subject Property is located and the incursion of
litigation expenses,” and Intermountain “will necessarily incur additional expenses in the
MEMORANDUM DECISION AND ORDER - 8

future to counteract the lingering effects of the Defendant’s conduct through the
monitoring of the Defendant’s activities, publication and advertising costs, and the
sponsorship of educational activities.” Mabbutt Aff. ¶ ¶ 15-16, Dkt. 31.
A portion of Intermountain’s alleged injury is of its own creation through
litigation. Id. And the Court would prefer additional evidence substantiating the amounts
of past expenditures and calculations for future expenditures. But CVE has not provided
the Court with any reason to doubt Intermountain’s alleged injuries. Thus, Intermountain
has demonstrated both its standing and prima facie disparate treatment case, contingent
upon providing sufficient evidence of discrimination. See Lowe, 775 F.2d at 1009.
3.

Discrimination Determination
As stated, the “elusive factual question of intentional discrimination,” where “a

plaintiff has provided direct and circumstantial evidence of discriminatory intent . . . may
be able to survive a motion for summary judgment on that evidence alone.” Id. at 1008-9.
Intermountain has alleged that Tina Smithson’s statements constitute a violation of
FHA §§ 3604(f)(1)1, (2)2 and (3)(B)3; 3604(c)4 and 3617.5 However, it is unclear whether

1

“[I]t shall be unlawful to discriminate in the sale or rental, or to otherwise make unavailable or deny, a
dwelling to any buyer or renter because of a handicap of (A) that buyer or renter, (B) a person residing in
or intending to reside in that dwelling after it is so sold, rented, or made available; or (C) any person
associated with that buyer or renter.” 42 U.S.C. § 3604(f)(1) (emphasis added).
2
“[I]t shall be unlawful to discriminate against any person in the terms, conditions, or privileges of sale or
rental of a dwelling . . . because of a handicap of (A) that person; or (B) a person residing in or intending
to reside in that dwelling after it is so sold, rented, or made available; or (C) any person associated with
that person.” 42 U.S.C. § 3604(f)(2).
3
“For purposes of this subsection, discrimination includes a refusal to make reasonable accommodations
in rules, policies, practices, or services, when such accommodations may be necessary to afford such
person equal opportunity to use and enjoy a dwelling.” 42 U.S.C. § 3604(f)(3)(B).

MEMORANDUM DECISION AND ORDER - 9

Intermountain has standing to allege a violation of § 3604(f)(1). It appears narrower than
§ 3604(f)(2) because of its textual limitation to discrimination toward a “buyer or renter.”
See Smith, 358 F.3d at 1103-1104.6 The language of § 3604(f)(2), however, lends itself to
the interpretation of an aggrieved party discussed above. See id. In addition, §
3604(f)(3)(B) is more an example of discrimination under § 3604(f) than a separate
portion of the statute that can be violated. Rather, the lynchpin appears to be § 3604(f)(2).
If, due to Tina Smithson’s statements, CVE discriminated “in the terms, conditions, or
privileges of sale or rental of a dwelling … because of handicap,” (§ 3604(f)(2)), then a
violation of § 3604(c) is likely, and a determination as to § 3617 and common law
negligence can be made.
Intermountain has cited various authorities in support of its allegations that define
“discriminate” under § 3604(f). First, § 3604(f)(3)(B) defines discrimination as “a refusal
to make reasonable accommodations in rules, policies, practices, or services, when . . .
necessary to afford . . . equal opportunity to use and enjoy a dwelling.” Illustrative of
such would be an apartment manager “refus[ing] to permit [a blind] applicant to live in
the apartment with a seeing eye dog because, without the seeing eye dog, the blind person
4

“It shall be unlawful to make . . . or cause to be made . . . any . . . statement . . . with respect to the sale
or rental of a dwelling that indicates any preference, limitation, or discrimination based on . . . handicap
. . . or an intention to make any such preference, limitation, or discrimination.” 42 U.S.C. § 3604(c).
5
“It shall be 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 section
3603, 3604, 3605, or 3606 of this title.” 42 U.S.C. § 3617.
6
The Court invites the parties to submit additional briefing prior to trial addressing this issue: whether
Intermountain has standing to allege a violation of §3604(f)(1), despite the apparent textual narrowing
and the Ninth Circuit’s position in Smith.

MEMORANDUM DECISION AND ORDER - 10

will not have an equal opportunity to use and enjoy the dwelling.” 24 C.F.R. § 204(b),
Example (1). HUD and the United States Department of Justice have further clarified that
a “housing provider may not require the applicant to pay a fee or a security deposit as a
condition of allowing the applicant to keep the assistance animal.” Joint Statement of the
Dept. of Housing and Urban Dev. and the Dept. of Justice, “Reasonable
Accommodations under the Fair Housing Act,” at p. 9, ¶11, Example 2 (May 17, 2004).
“However, if a tenant’s assistance animal causes damage to the applicant’s unit or the
common areas of the dwelling, the housing provider may charge the tenant for the cost of
repairing the damage . . . if it is the provider’s practice to assess tenants for any damage
they cause to the premises.” Id.
The Ninth Circuit has also provided guidance on determining whether or not a
defendant has refused to make a reasonable accommodation:
[A] plaintiff must prove all of the following elements: (1) that the plaintiff
or his associate is handicapped within the meaning of 42 U.S.C. § 3602(h);
(2) that the defendant knew or should reasonably be expected to know of
the handicap; (3) that accommodation of the handicap may be necessary to
afford the handicapped person an equal opportunity to use and enjoy the
dwelling; (4) that the accommodation is reasonable; and (5) that defendant
refused to make the requested accommodation.
DuBois v. Assoc. of Apartment Owners of 2987 Kalakaua, 453 F.3d 1175, 1179 (9th Cir.
2006) (emphasis added).7 In the realm of organizational standing where a plaintiff need
not even be a victim of discrimination, the first element, clearly tailored to a bona fide
7

Compare with Giebler v. M & B Assocs., 343 F.3d 1143, 1147 (9th Cir. 2003) (“a plaintiff must
demonstrate . . .”) (emphasis added) and McGary v. City of Portland, 386 F.3d 1259, 1262 (9th Cir.
2004) (“a plaintiff must allege . . .”) (emphasis added).

MEMORANDUM DECISION AND ORDER - 11

renter or purchaser, is not relevant here. See Harris, 183 F.3d at 1050. But the remaining
four elements inform the discrimination inquiry and should be applied.
Though it is Plaintiff’s burden to at least allege the applicable reasonable
accommodation elements, the Ninth Circuit has “repeatedly interpreted [§ 3604(f)(3)(B)]
as imposing an ‘affirmative duty’ on landlords . . . to reasonably accommodate the needs
of disabled individuals.” McGary, 386 F.3d at 1261-1262. Thus a culpable defendant
must either know or under the circumstances reasonably be expected to know of the
handicap. Dubois, 453 F.3d at 1179.
Federal fair housing regulations also more generally prohibit “[u]sing . . . security
deposits . . . because of . . . handicap.” 24 C.F.R. § 100.65(b)(1). And discrimination
includes “discouraging any person from . . . renting a dwelling because of . . . handicap.”
24 C.F.R. § 100.70(c)(1).
CVE has contested the regulations’ and the Joint Statement’s authoritative value.
However, “[t]he Secretary of Housing and Urban Development (‘HUD’) ordinarily
commands considerable deference in interpreting the FHA.” Harris, 183 F.3d at 1051
(citing Plaff v. HUD, 88 F.3d 739, 747 (9th Cir. 1996)). HUD’s “interpretation of the
statute” should be “review[ed] with deference.” Id. (quoting Chevron USA, Inc. v.
Natural Resources Defense Council, Inc., 467 U.S. 837, 844 (1984)). Accordingly, the
definition of discrimination developed by HUD is authoritative. The regulations and
illustrations require no lengthy inferential leaps. Indeed, a plain reading of §3604(f)(3)(B)
suggests that imposing an additional security deposit for a service animal made necessary
MEMORANDUM DECISION AND ORDER - 12

by a tenant’s handicap is discriminatory. Requiring such a deposit constitutes a failure to
provide the reasonable accommodation of waiving a general pet deposit or no-pet policy.
CVE has also attempted to compare the class of handicapped service animal
owners with other tenants who own animals, stating that its policy is “equally applicable
to all tenants with animals.” Def.’s Br. at 8, Dkt. 24. But this compares handicapped
individuals with the wrong class. The basic premise of § 3604(f) is to put handicapped
individuals on the same plane as if they were not handicapped at all, giving them an
“equal opportunity to use and enjoy a dwelling.” § 3604(f)(3)(B). Therefore, if Tina
Smithson’s statements are interpreted by the fact finder as referring to CVE’s policy for
handicapped individuals with service animals, then the rule developed by HUD and
informed by Dubois would be applicable.
Intermountain bears the initial burden of establishing a prima facie case alleging as
much. Harris, 183 F.3d at 1051. If it does so with direct or circumstantial evidence of
discriminatory intent, Intermountain can shift its burden to CVE. Id.; Lowe, 775 F.2d at
1009. Intermountain’s primary evidence is a transcription of its testers’ telephone
conversations with Tina Smithson. CVE has gone to great lengths to classify her
statements as merely pertaining to Falls Park’s general animal pet deposit policy. Def.’s
Br. at 4, Dkt. 24. On the other hand, Intermountain posits that the discriminatory nature
of her statements is indisputable. Pl.’s Br. at 6, Dkt. 17.
Direct evidence “is defined as ‘evidence of conduct or statements . . . that may be
viewed as directly reflecting the alleged discriminatory attitude . . . sufficient to permit
MEMORANDUM DECISION AND ORDER - 13

the fact finder to infer that [the discriminatory] attitude was more likely than not a
motivating factor in the . . . decision.’” Enlow v. Salem-Keizer Yellow Cab Co., Inc., 389
F.3d 803, 812 (9th Cir. 2004) (quoting Walton v. McDonnell Douglas Corp., 167 F.3d
423, 426 (8th Cir. 1993)).
The parties’ differing interpretations of Tina Smithson’s statements demonstrate a
level of ambiguity. Further, without the context of Ms. House’s and Ms. Mabbutt’s
questions, Tina Smithson’s statements seem only to pertain to CVE’s general pet deposit
policy. But taking the conversations as a whole, the fact finder has plenty from which to
infer discrimination. Absent controverting evidence from CVE, it would be easy to infer
that CVE is unwilling to make reasonable accommodations for handicapped individuals
with prescribed service animals or that CVE is seeking to discourage such individuals
from applying for tenancy. For example, after Ms. House indicated that she had a
“prescription” for her service animal, Tina Smithson stated that there would be an
additional “nine hundred dollar deposit on the dog.” Nagy Aff. ¶¶ 9-10, Dkt. 32. Ms.
House asked, “With the doctor’s note, right?” Id. Tina Smithson confirmed, “Right.” Id.
Similarly, when Ms. Mabbutt asked about their policy on “support animals,” Tina
Smithson responded, “Yeah. It’s a nine hundred dollar pet deposit.” Id. at 13.
Accordingly, this direct evidence substantiates Intermountain’s prima facie case
and shifts the burden to CVE. Harris, 183 F.3d at 1051. It appears that CVE’s
“legitimate, nondiscriminatory reason for the action” (Id.) is that Tina Smithson was
“merely communicating [CVE’s] policy of charging a deposit for animals.” Def.’s Br. at
MEMORANDUM DECISION AND ORDER - 14

4, Dkt. 24. In support of this position, CVE has provided an affidavit by Tina Smithson
stating that “Falls Park . . . has a general policy to evaluate and grant reasonable
accommodation requests by tenants with disabilities,” and it “currently has five
disabled/handicapped individuals who retain animals in their residences [all of whom
have] requested and received a reasonable accommodation in the form of a waiver of the
regular animal deposit.” Smithson Aff. ¶¶ 9, 18, Dkt. 25.
Believed as true, this evidence demonstrates that CVE does grant reasonable
accommodations for handicapped individuals with prescribed service animals. It directly
rebuts Intermountain’s evidence and shows a genuine issue of material fact yet to be
resolved.
4.

Conclusion
Whether Falls Park Apartments discriminates on the basis of handicap is a

question that must survive summary judgment because of Intermountain’s establishment
of a prima facie case and CVE’s provision of controverting evidence. Lowe, 775 F.2d at
1008. The remaining elements of Intermountain’s claims all hinge on a finding of
discrimination, which must be left to the finder of fact. Id. at 1009.
ORDER
IT IS ORDERED:
1.

Both Motions For Summary Judgment (Dkt. 16 and 22) are DENIED. The
Court invites the parties to submit additional briefing on whether
Intermountain has standing to allege a violation of §3604(f)(1), despite the

MEMORANDUM DECISION AND ORDER - 15

apparent textual narrowing and the Ninth Circuit’s position in Smith v.
Pacific Properties & Dev. Corp., 358 F.3d 1097, 1103-1105 (9th Cir.
2004).

DATED: July 20, 2011

_________________________
B. Lynn Winmill
Chief Judge
United States District Court

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