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

Filing 74

MEMORANDUM DECISION AND ORDER denying 49 Motion for Reconsideration. The Court finds that Plaintiff lacks standing to bring its claim under 42 U.S.C. § 3604(f)(1). Therefore, Plaintiffs claim under § 3604(f)(1) is DISMISSED. 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,
v.

MEMORANDUM DECISION AND
ORDER

CVE FALLS PARK, LLC,
Defendant.

INTRODUCTION
Before the Court is Plaintiff’s Motion to Alter Judgment (Dkt. 49). The Court has
determined that oral argument would not significantly assist the decisional process, and
will therefore consider the motion on the record and pleadings, without a hearing. The
Court having reviewed the record and pleadings will deny the motion as more fully
expressed below.
BACKGROUND
Plaintiff Intermountain Fair Housing Council filed this action alleging
discriminatory housing practices by Defendant CVE Falls Park, LLC, and common law
negligence. Both parties filed motions for summary judgment, and following a hearing
on July 6, 2011, the Court issued a Memorandum Decision and Order (Dkt. 47), denying

MEMORANDUM DECISION AND ORDER - 1

both motions. The Court also invited the parties to submit additional briefing on whether
Plaintiff has standing to allege a violation of § 3604(f)(1), in light of Smith v. Pacific
Properties & Dev. Corp., 358 F.3d 1097, 1103-05 (9th Cir. 2004). Plaintiff now moves
for reconsideration of the Court’s Order (Dkt. 47), and for a finding that Plaintiff has
standing under § 3604(f)(1).
ANALYSIS
1.

Reconsideration of Order Denying Summary Judgment
A.

Legal Standard

A motion to reconsider an interlocutory ruling requires an analysis of two
important principles: (1) error must be corrected; and (2) judicial efficiency demands
forward progress. The former principle has led courts to hold that a denial of a motion to
dismiss or for summary judgment may be reconsidered at any time before final judgment.
Preaseau v. Prudential Insurance Co., 591 F.2d 74, 79-80 (9th Cir. 1979). Some would
argue that such an approach is inconsistent with the fact that even an interlocutory
decision becomes the “law of the case.” However, the law of the case is not immutable.
Justice Oliver Wendell Holmes concluded that the “law of the case” doctrine “expresses
the practice of courts generally to refuse to reopen what has been decided;” it is not,
however, a limit to the power of the courts. Messinger v. Anderson, 225 U.S. 436, 444
(1912). Adopting a pragmatic approach, one of the most respected District Judges has
concluded that “[t]he only sensible thing for a trial court to do is to set itself right as soon
as possible when convinced that the law of the case is erroneous. There is no need to

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await reversal.” In re Airport Car Rental Antitrust Litigation, 521 F.Supp. 568, 572
(N.D.Cal. 1981) (D.J. Schwarzer).
The need to be right, however, must co-exist with the need for forward progress. A
court’s opinions “are not intended as mere first drafts, subject to revision and
reconsideration at a litigant's pleasure.” Quaker Alloy Casting Co. v. Gulfco Indus., Inc.,
123 F.R.D. 282, 288 (N.D.Ill.1988). Reconsideration of a court’s prior ruling is
appropriate “if (1) the district court is presented with newly discovered evidence, (2) the
district court committed clear error or made an initial decision that was manifestly unjust,
or (3) there is an intervening change in controlling law.” S.E.C. v. Platforms Wireless
Int’l Corp., 617 F.3d 1072, 1100 (9th Cir. 2010) (citation omitted). If the motion to
reconsider does not fall within one of these three categories, it must be denied.
B.

Plaintiff Has Not Shown Clear Error

Plaintiff raises the second basis for reconsideration – that the Court committed
clear error in denying Plaintiff’s motion for summary judgment. However, the Court is
unpersuaded that the Plaintiff has identified any clear error in the Court’s prior decision.
Plaintiff presented evidence in its motion for summary judgment that Plaintiff
“testers” – those posing as potential renters to gather evidence of unlawful practices – had
inquired about renting from Defendant with a prescribed service animal, and were told
there would be a pet deposit. See Mem. Dec. & Ord., Dkt. 47 at 2-3. In denying
summary judgment, the Court cited Defendant’s rebuttal evidence that it had five
handicapped tenants who requested and received waivers of animal deposits for their

MEMORANDUM DECISION AND ORDER - 3

service animals. The Court concluded there was a genuine issue of material fact whether
Defendant reasonably accommodated handicapped individuals. Id. at 15. Plaintiff argues
that the Court clearly erred because Plaintiff did not seek summary judgment on a claim
for denial of reasonable accommodations; thus Defendant’s evidence – relied on by the
Court – was irrelevant.
As this Court has discussed, the FHA’s subsection on reasonable accommodation
“is more an example of discrimination under § 3604(f) than a separate portion of the
statute that can be violated.” Id. at 10. This analysis tracks Plaintiff’s complaint, which
alleges a failure to reasonably accommodate under Count I – discrimination on the basis
of handicap, for which Plaintiff sought summary judgment. Compl., Dkt. 1 ¶ 26; Mot.,
Dkt. 17 at 2. Thus, Plaintiff’s attempt to distinguish and ignore the reasonable
accommodation analysis in order to prevail on summary judgment fails.
As an integral part of the discrimination inquiry, the issue of reasonable
accommodation is relevant. Plaintiff has identified no error in the Court’s finding that a
triable issue of fact remains whether Defendant failed to reasonably accommodate. There
being no showing of error, the motion for reconsideration will be denied.
2.

Plaintiff Lacks Standing Under § 3604(f)(1)
At the Court’s invitation, Plaintiff provided additional briefing regarding

Plaintiff’s standing under 42 U.S.C. § 3604(f)(1), which prohibits discrimination “ in the
sale or rental . . . [of] a dwelling . . . because of a handicap.” The Ninth Circuit has found
that testers have standing under § 3604(f)(2) in Smith v. Pac. Prop. & Dev’t Corp., 358

MEMORANDUM DECISION AND ORDER - 4

F.3d 1097. As in Smith, Plaintiff IFHC has standing under subsection (f)(2), which
makes it unlawful “[t]o discriminate against any person in the terms, conditions, or
privileges of sale or rental of a dwelling . . ..” 42 U.S.C. § 3604(f)(2). However, the
court’s decision in Smith notes that subsection (f)(2) applies more broadly than (f)(1),
which makes it unlawful “[t]o discriminate in the sale or rental . . . [of] a dwelling to any
buyer or renter because of a handicap.” 42 U.S.C. § 3604(f)(1).
Plaintiff points to the policy statement by the Department of Housing and Urban
Development, arguing that protections in the FHA should be interpreted broadly. Mot.,
Dkt. 50 at 3. Plaintiff also cites a district court decision out of the Northern District of
Illinois, for the proposition that the FHA should be applied “to prohibit all practices
which have the effect of denying dwellings on prohibited grounds.” Id. at 4 (quoting
United States v. Amer. Inst. of Real Estate Appraisers, 442 F.Supp. 1072, 1079 (N.D. Ill.
1977)). As demonstrated in that decision, the emphasis on broad statutory construction
applies to the prohibited conduct; there is no implication that standing should be
construed broadly.
The Court has already determined that Plaintiff has standing via its undisputed
“personal stake” in the controversy. Mem. Dec. & Ord., Dkt. 47 at 7. Under
§ 3604(f)(2), Plaintiff is free to challenge Defendant for alleged discrimination in the
terms, conditions, or privileges of rental of a dwelling. However, Plaintiff has not shown
it has standing to claim discrimination in the rental of a dwelling under § 3604(f)(1). The

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Court therefore dismisses Plaintiff’s claim of discrimination under § 3604(f)(1) for lack
of standing.
ORDER
IT IS ORDERED THAT:
1.

Plaintiff’s Motion for Reconsideration (Dkt. 49) is DENIED.

2.

The Court finds that Plaintiff lacks standing to bring its claim under 42
U.S.C. § 3604(f)(1). Therefore, Plaintiff’s claim under § 3604(f)(1) is
DISMISSED.

DATED: November 22, 2011

_________________________
B. Lynn Winmill
Chief Judge
United States District Court

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