Stevens et al v. Hollywood Towers Condo Association et al
Filing
56
MEMORANDUM Opinion and Order Signed by the Honorable Harry D. Leinenweber on 12/29/2011.(rp, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
MARY JO and RALPH STEVENS,
Plaintiff,
Case No. 11 C 1657
v.
HOLLYWOOD TOWERS and
CONDOMINIUM ASSOCIATION, et
al.,
Hon. Harry D. Leinenweber
Defendants.
MEMORANDUM OPINION AND ORDER
Plaintiffs Mary Jo and Ralph Stevens (hereinafter, collectively,
the “Plaintiffs”) brought the instant suit contending that their
Condo Board’s refusal to accommodate Mary Jo’s need for an emotional
support animal forced them to sell their condo.
The Defendants,
Hollywood Towers Condominium Association, Joseph A. Armenio, Sudler
Building Services LLC, and Sudler and Co., doing business as Sudler
Property Management (hereinafter, collectively, the “Defendants”)
have moved to dismiss for failure to state claims upon which relief
can be granted.
For the reasons stated, the motion is denied as to
the claims brought by Plaintiffs in Counts I and III, but granted as
to the remainder of the Complaint. Additionally, the Court dismisses
Sudler Building Services from the case.
I.
BACKGROUND
The following facts are taken from the Plaintiffs’ Amended
Complaint and will be considered true for the purposes of this
motion.
Plaintiffs owned a condominium in the Hollywood Towers
building, a 541–unit building that has a no-pet policy, from 2008 to
July 28, 2011.
In March 1999, Mary Jo Stevens (“Mary Jo”) was in an automobile
accident in which she suffered a head injury that left her disabled.
As a result, she suffers unpredictable panic attacks during which she
stops breathing.
In November 2009, Mary Jo’s doctor, Dr. Shayna
Mansfield, prescribed her an emotional support animal to assist Mary
Jo with her panic disorder.
Mary Jo then wrote an e-mail to the
Hollywood Towers building manager, Joseph Armenio (“Armenio”), on
November 11, 2009, informing him of her prescription for a service
animal.
She volunteered to keep the dog in a carrier in the public
areas of the building, although she alleges that she subsequently
realized this would not be practicable.
On November 24, 2009, Armenio responded to Mary Jo’s e-mail,
seeking four items in order to approve the animal.
Armenio wanted:
(1) proof of the service animal’s training; (2) a letter explaining
how the animal’s specialized training would help Mary Jo deal with
her condition; (3) a letter specifying the doctor’s qualifications
for prescribing the animal; and (4) a letter prescribing the use of
the animal.
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In his e-mail, Armenio told Mary Jo that the Hollywood Towers
Condominium Association (the “Condo Board”) would require that the
emotional support animal be kept in a container at all times when in
the common areas of the building.
He also told Mary Jo she must
enter and leave through the north and south entrances to the building
instead of through the main entrance when accompanied by the animal.
According to the Complaint, Armenio did not give Mary Jo or Ralph the
keys to the north or south entrances.
He also told Plaintiffs that
when they were accompanied by the animal, they would be required to
use the service elevator, which has limited hours of operation.
On November 25, 2009, Mary Jo e-mailed Armenio to let him know
that her service animal, a dog, had arrived.
She provided him with
a copy of Mansfield’s prescription for an emotional service therapy
dog.
The prescription stated that Mary Jo is a person with a
disability resulting from a head injury and that her disability
limits a major life activity.
Mary Jo also told Armenio that it was
unreasonable to require her to use the north and south entrances
because the north entrance was usually locked from the outside and
south entrance was always locked from the outside.
For the next four months, Plaintiffs did not receive any further
communication from Armenio or the Condo Board.
In the meantime, she
obtained a different emotional support dog. The dog weighs less than
12 pounds and in the spring of 2010 was trained as a psychiatric
service
dog
in
accordance
with
U.S.
Department
of
Justice
regulations. He helps Mary Jo regulate her breathing, calms her, and
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helps prevent panic attacks.
rarely been away from it.
Since she got the dog, Mary Jo has
Even before the dog was trained as a
service animal, it was able to detect her stress-related breathing
problems and lay on her chest to calm her, according to Plaintiffs’
Complaint.
Mary Jo alleges that after she got the dog, she and her husband
observed that the staff of Hollywood Towers stared at her when she
entered and left the lobby and “also appeared to unnecessarily
monitor and document her comings and goings from the building.”
Pl.’s Compl. ¶ 31.
Mary Jo also says she was repeatedly accosted and
questioned by other residents about her need for a dog and the nature
of her disability.
She
found these questions
humiliating
and
intrusive.
On
March
8,
2010,
Armenio
e-mailed
Plaintiffs
about
the
emotional support dog, informing them that he had received reports
that they had carried their dog into and out of the main entrance to
the building without a carrier.
He stated that the building lobby
was “off limits to dogs of any kind.”
Pls.’ Compl. ¶ 33.
Plaintiffs
responded that it was impossible to keep the dog in the carrier at
all times.
They also told Armenio that because the other outside
doors were locked, the only way to enter or exit the building was
through
the
main
lobby.
Armenio
responded
by
insisting
that
Plaintiffs use the service doors.
On March 11, 2010, Ralph Stevens (“Ralph”) met with Armenio to
discuss Mary Jo’s need for an accommodation.
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Armenio told him that
he and his wife were not allowed to have the emotional support animal
in the common areas of the building, including the main lobby, the
main lobby elevators, the mail room, and the laundry room.
Armenio
reiterated that the dog had to be in a container when he was being
moved through the building.
use
the
north
or
south
He also reiterated that Plaintiffs must
entrances
to
access
the
building
when
accompanied by the support animal.
Ralph protested these conditions and told Armenio that Mary Jo
could not carry the dog in a container when she was in the building’s
common areas because the dog could not perform its functions if it
was in a container.
Also, because of her disability and physical
limitations, it was impossible for her to manage a carrier and her
other belongings any time she enters or leaves the building, or when
she needs to use the laundry room or other building facilities.
Ralph also told Armenio it was unreasonable for Mary Jo to use
the service entrances whenever she had her emotional support dog with
her.
He also told Armenio that the building’s south door was locked
with no handle on the outside and no means of reentry except propping
the door open, while the north door was locked after 10:00 p.m.
Ralph also told Armenio that the use of those side entrances was
problematic because it required Mary Jo to walk a greater distance
and put her at risk of being hit by oncoming traffic.
Because of her
disability, Mary Jo suffers increased anxiety in high traffic areas
and suffers increased anxiety for her personal safety when using
doors that are isolated and infrequently used by other tenants.
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Additionally, Ralph told Armenio that he and his wife were being
harassed by residents and staff about their emotional support animal.
He requested that Hollywood Towers to send a letter to all residents
informing them that there was an emotional support animal in the
building that was exempt from the no-dog rules. Plaintiffs also told
Armenio that other residents of the building were keeping dogs in
violation of the no-dog rule, but that those animals had been
tolerated.
Armenio rejected their requests.
The next day, on March 12, 2010, Plaintiffs wrote a letter to
Armenio and the Condo Board again requesting unrestricted access for
the emotional support animal as a reasonable accommodation for her
disability. They informed the Condo Board that they felt intimidated
and harassed by the employees and tenants of Hollywood Towers, who
regularly questioned them about the service animal.
They requested
that the Condo Board advise and train the staff on the law regarding
service animals and provide a written notice to the residents that
there was an emotional support animal in the building.
The Condo
Board did not initially respond, and Mary Jo continued to “be
accosted and interrogated by building staff about the emotional
support animal.”
Pl.’s Compl. ¶ 45.
On April 3, 2010, Plaintiffs
again wrote Armenio and requested a response to their letter of March
12, 2010.
On April 20, 2010, Armenio responded on behalf of the Condo
Board and told Plaintiffs that they must keep the dog in a carrier
while in the common areas of the building and use the north or south
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side doors when accompanied by the animal.
Armenio said that the
staff had been trained and refused to notify residents about the
emotional support animal until Plaintiffs provided “tangible proof”
of harassment.
Armenio also told Plaintiffs that they had failed to
provide proof of the animal’s training.
A week later, on April 27, 2010, Armenio confronted Mary Jo in
the lobby of the building about bringing the dog into the common
areas of the building.
public confrontation.
She felt harassed and intimidated by the
The same day, Armenio gave Plaintiffs a
written “Warning of Rules Violation” for bringing the animal into the
building lobby and other common areas.
The warning also said that
Plaintiffs had failed to cooperate with the Condo Board in setting a
reasonable accommodation.
On May 4, 2010, Plaintiffs filed a complaint with the Chicago
Commission on Human Relations regarding the Condo Board’s actions.
On July 16, 2010, Mary Jo notified Armenio in writing that she was
unable to carry the emotional support dog for long periods of time
and would need to keep him on a leash in all public areas of the
building.
On August 10, 2010, she received a letter from the Condo
Board’s attorneys indicating that Plaintiffs had brought the service
animal into the laundry room and requesting additional documentation
of her need for an accommodation.
Plaintiffs contend that Defendants’ actions in refusing her
request for an accommodation and harassing them deprived them of
their use and enjoyment of their home and amounted to a constructive
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eviction.
Plaintiffs sold their condo at a loss and moved out on
July 28, 2011.
They seek to recover for:
(1) a failure to provide
a reasonable accommodation under the Fair Housing Act Amendments of
1988, 42 U.S.C. § 3604(f) (“FHAA”); (2) interference or intimidation
under the FHAA, 42 U.S.C. § 3617; (3) failure to provide a reasonable
accommodation under the Illinois Human Rights Act (“IHRA”), 775 Ill.
Comp.
Stat.
5/3–101,
et
seq.;
(4)
nuisance;
(5)
intentional
infliction of emotional distress; and (6) constructive eviction.
Defendants seek to dismiss the entire complaint pursuant to FED .
R. CIV. P. 12(b)(6) for failure to state a claim upon which relief can
be granted.
II.
LEGAL STANDARD
To survive a Rule 12(b)(6) motion to dismiss, a complaint must
contain “sufficient facts to state a claim for relief that is
plausible on its face.”
(7th Cir. 2009).
Justice v. Town of Cicero, 577 F.3d 768, 771
The Court accepts as true all well-pleaded facts
alleged in the complaint and draws all reasonable inferences in a
light favorable to the plaintiff.
Bell Atl. Corp. v. Twombly, 550
U.S. 544, 556 (2007).
Although a complaint does not need detailed factual allegations,
it must provide the grounds of the claimant's entitlement to relief,
contain more than formulaic recitations of the elements of a cause of
action, and allege enough to raise a right to relief above the
speculative level.
See id. at 555.
Legal conclusions can provide a
complaint's framework, but unless well-pleaded factual allegations
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move the claims from conceivable to plausible, they are insufficient
to state a claim.
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950–51
(2009).
III.
ANALYSIS
The Court will first consider Plaintiffs’ claims under the FHAA
and the IHRA.
A. Claims for Failure to Provide a Reasonable
Accommodation under FHAA and IHRA (Counts I and III)
In Count I, Plaintiffs allege that Defendants violated 42 U.S.C.
§ 3604 (f)(3)(B) of the FHAA, which prohibits the “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.”
In Count III, Plaintiffs
bring a complaint for disability discrimination under the Illinois
Human Rights Act, 775 Ill. Comp. Stat. 5/3-101, et seq., which also
alleges that Defendants failed to provide her with a reasonable
accommodation.
Because Illinois courts have looked to the Fair
Housing Act in interpreting the Illinois Human Rights Act, the Court
will consider these claims to be subject to the same analysis.
See
Norville v. Dep’t of Human Rights, 792 N.E.2d 825, 827 (Ill. App. Ct.
2003).
1.
Whether Failure to Accommodate is Adequately Pleaded
To establish a prima facie case for failure to accommodate under
the FHAA, the plaintiff must show that:
(1) she suffers from a
disability or is associated with someone with a disability; (2)
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defendant knows of the disability or reasonably should be expected to
know of it; (3) an accommodation may be necessary to give the
plaintiff an equal opportunity to use and enjoy the dwelling; and (4)
the
defendant
refused
to
make
a
reasonable
accommodation.
Roseborough v. Cottonwood Apartments, No. 94 C 3708, 1996 WL 490717,
at *2 (N.D. Ill. Aug. 26, 1996).
Generally speaking, a “reasonable accommodation” is one that
would not impose an undue hardship upon the entity making the
accommodation and would not undermine the basic purpose that the
requirement aims to achieve. United States v. Vill. of Marshall, 787
F.Supp. 872, 878 (W.D. Wis. 1991).
The responsibility to offer a
reasonable accommodation does not mean that a landlord must do
everything possible to accommodate a disabled person; rather courts
should
undertake
a
cost-benefit
analysis
constitutes a reasonable accommodation.
to
determine
what
Clabault v. Shodeen Mgmt.,
No. 05 C 5482, 2006 WL 1371460, at *2 (N.D. Ill. May 15, 2006).
The
burden is on the plaintiffs to show that an accommodation she seeks
is reasonable on its face.
Oconomowoc Residential Programs v. City
of Milwaukee, 300 F.3d 775, 783 (7th Cir. 2002).
If they can, the
defendant must come forward with evidence of unreasonableness or
undue hardship that would be caused by the particular accommodation.
Id.
Here, Defendants argue that Plaintiffs have failed to state a
claim because there can be no FHAA violation until a request for an
accommodation is actually denied, and in this case Defendants allowed
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Plaintiffs to keep the service animal. Further, Defendants note that
they were not obligated to provide Plaintiffs with the accommodation
they requested, but merely with a reasonable accommodation. See Gile
v. Am. Airlines, 95 F.3d 492, 499 (7th Cir. 1996).
Defendants cite Prindable v. Ass’n of Apartment Owners of 2987
Kalakaua,
304
F.Supp.2d
1245,
1257
(D.
Haw.
2003),
for
the
proposition that typically, waiving a no-pet rule to allow a disabled
resident to have a service animal is a reasonable accommodation.
In
Prindable, a case decided at the summary judgment stage, the Court
held that a condo association did not violate the FHAA when it
allowed a man who suffered from emotional disabilities to keep his
service
animal
accommodation.
while
it
investigated
Id. at 1259–60.
the
need
for
such
an
The Court noted that the plaintiff
“indirectly challenge[d]” certain restrictions the association had
placed on the use of the dog, including that he take the dog out of
the apartment using the shortest possible route.
Id. at 1259 n.29.
The plaintiff contended that further accommodations were necessary,
including that he be able to take the dog through any portion of the
building.
Id.
Although he agreed to use the shortest possible
route, the plaintiff contended that the route was dangerous because
he got dizzy spells and had fallen while taking this route.
Id.
The Prindable court rejected this argument, noting that the
plaintiff was free to enter and leave the building as he chose as
long as he was not accompanied by the dog.
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Id.
The court reasoned
that “a service animal must be a reasonable accommodation, and
nothing in the FHA precludes the imposition of appropriate rules and
regulations designed to lessen the impact of housing a pet in a nopet building.”
Id.
As such, the court held, to succeed in his
challenge to the limitations the association had placed on his use of
the dog, the plaintiff would have to come forward with evidence that
he had a disability that not only required the use of a service dog,
but which also required him to take the path of his choice through
the building.
Id.
Because he had not done so, summary judgment in
favor of the association was appropriate.
Id.
This case presents similar issues in terms of what limits a property
manager is allowed to put on the possession of a service animal after
it
has
waived
reasonable.
the
no-pet
rule.
Some
limits,
of
course,
are
After all, many residents choose to live in a no-pet
building because of allergies, fear of animals, belief that such a
building will have higher property values, or countless other reasons
that are entitled to respect.
As such, the Court agrees with
Defendants that they were not required to capitulate to Plaintiffs’
request for “unrestricted access,” for the dog.
Pls.’ Compl. ¶ 43.
The problematic aspect of this case lies in determining where to draw
the line, and whether such a determination can be made at this stage
of the case.
Plaintiffs rely on Petty v. Portofino Council of Co-owners, 702
F.Supp.2d 721, 731 (S.D. Tex. 2010), in which the court held that
Plaintiffs adequately stated a claim under the FHAA when they alleged
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that the building manager fined them after they obtained a service
dog for their deaf son and sent them a letter stating that another
one of their children could not take the dog out of the building to
relieve itself.
Defendants contend that Petty is distinguishable
because Plaintiffs were never fined or precluded from having a dog in
their unit, nor were they precluded from accessing all of the common
areas of the building.
The Court agrees that the allegations in Petty are significantly
different than the ones at issue here. Defendants allowed Plaintiffs
to access the building through alternate entrances and as such did
not completely deny Plaintiffs access to the common areas of the
building.
Further, Plaintiffs did voluntarily agree to keep the dog
in a carrier, at least initially.
Nor is the Court convinced by Mary
Jo’s protestations that the service dog needed to be on a leash,
rather than in a carrier, at all times.
As the previous district
judge assigned to this case observed, it is difficult to understand
how Mary Jo would have had better access to the dog if it was on a
leash, which could extend several feet away, as opposed to in a
carrier, where it could be held close to her body.
4:24-5:7.
See D.E. 26, at
At that hearing, Plaintiffs’ attorneys responded that
because of surgeries, Mary Jo could not lift anything in excess of 12
pounds, and the dog was about 10 pounds.
Id. at 5:3-7.
As the Court
noted, however, lightweight carriers and smaller dogs were available.
Id. at 5:8-25.
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Further, the Court is highly skeptical that Defendants had any
responsibility
to
control
the
behavior
of
other
tenants
who
questioned Plaintiffs about the service animal, as uncomfortable as
that may have been for Plaintiffs.
That leaves the matter of what
entrances Plaintiffs were required to use when accompanied by the
service animal.
Plaintiffs allege that they did not have keys to the
north and south entrances, and that they were sometimes unavailable.
They additionally allege that use of those doors put Mary Jo in close
proximity
to
oncoming
traffic,
which
increased
her
anxiety.
Additionally, while it seems reasonable, on its face, for Defendants
to have required Plaintiffs to use the service elevator when with the
dog, the elevator’s limited hours may be more problematic.
The question of whether Defendants restrictions on Mary Jo’s
access to the building’s entrances and exits while with the service
animal were reasonable is a thin thread upon which to hang a case,
but the Court hesitates to resolve this issue without a more complete
factual record.
A key issue, which cannot be resolved at this stage
of the case, is whether Mary Jo was required to have her service
animal with her at all times.
If Mary Jo was required to have her
service animal with her at all times (or nearly all the time), if it
was impossible to keep the dog in a carrier, and if Mary Jo was at
times prevented or discouraged from entering or leaving her residence
because of the restrictions that were in place, then it is possible
that Defendants’ accommodations did not go far enough.
The question
of whether an accommodation is reasonable is a question of fact
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“determined by a close examination of the particular circumstances.”
Jankowski Lee & Assocs. v. Cisneros, 91 F.3d 891, 896 (7th Cir.
1996); Prindable, 304 F.Supp.2d at 1254.
The Court, cautions, however, that Plaintiffs will have to
provide evidence to show that Mary Jo was disabled, that she needed
the dog to treat her disability, and that her disability made it
necessary for her to travel through the complex by the path of her
choosing.
Prindable, 304 F.Supp. at 1259 n. 29.
However, at this
point, the Court will allow Plaintiffs’ claims under the FHAA and
IHRA for failure to provide a reasonable accommodation to go forward,
and Defendants’ Motion to Dismiss Counts I and III is denied.
B.
FHAA Interference or Intimidation Claim (Count II)
In Count II, Plaintiffs seek to recover under 42 U.S.C. § 3617,
which makes it 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.
Plaintiffs allege that Defendants violated this law by:
refusing
to
provide
the
requested
accommodations;
(2)
(1)
imposing
unreasonable restrictions on the Plaintiffs’ ability to use their
residence; (3) refusing to notify residents of the presence of an
emotional
support
appropriately
train
animal
in
management
the
and
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building;
staff;
(4)
(5)
refusing
monitoring
to
the
Plaintiffs’ comings and goings; and (6) repeatedly harassing and
humiliating the Plaintiffs.
In order to succeed on such a claim, Plaintiffs must show that:
(1) Mary Jo is a protected individual under the FHAA; (2) Plaintiffs
were engaged in the exercise of their fair housing rights; (3)
Defendants
threatened,
coerced,
intimidated
or
interfered
with
Plaintiffs on account of their protected activity under the FHAA; and
(4) Defendants were motivated by a desire to discriminate.
Frischolz, 587 F.3d 771, 783 (7th Cir. 2009).
than
a
“quarrel
discrimination,”
among
but
neighbors”
rather
invidiously motivated.”
is
a
or
an
“pattern
Bloch v.
Interference is more
“isolated
of
act
of
discrimination,
Id. (internal citations omitted).
Defendants argue that Plaintiffs’ claim fails because they have
not adequately alleged either the third or fourth elements required
to
state
a
claim
under
§
3617.
Indeed,
most
of
Plaintiffs’
allegations in regard to their interference claim amount to nothing
more than a restatement of their failure to accommodate claim.
The
only allegations that perhaps go further are Plaintiffs’ allegations
that the staff of Hollywood Towers monitored their comings–and–goings
and harassed them.
Even then, it makes sense that building employees in a staffed
building would monitor who enters and leaves.
Further, Plaintiffs’
complaints of harassment by building staff center around the fact
that they were given warnings of rules violations and confronted by
Armenio about bringing her emotional support animal into the common
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areas of the building.
Thus, it seems unlikely that Plaintiffs’
allegations of harassment and monitoring are enough to sustain a
claim under § 3617.
While neither the statute nor the legislative
history defines the minimum level of coercion or intimidation needed
to violate § 3617, see People Helpers Found., Inc. v. City of
Richmond, 781 F.Supp. 1132, 1136 (E.D. Va. 1992), these allegations
boil down to little more than a disagreement about whether Defendants
provided a reasonable accommodation.
However, the failure to provide a reasonable accommodation, by
itself, may amount to an interference with Plaintiffs’ rights under
the Fair Housing Act if it is done with discriminatory intent.
24
C.F.R. § 100.400(c)(2); see Bloch v. Frischolz, 587 F.3d 771, 781
(7th Cir. 2009).
As such, it appears to the Court that the success
of Plaintiffs’ § 3617 claim hinges on whether Defendants offered a
reasonable accommodation.
If they did, then there can be no claim
under § 3617 that they interfered with Plaintiffs’ exercise of their
fair housing rights. But if they did not, and their refusal to grant
such an accommodation was motivated by invidious discrimination, then
they may prevail on this claim.
Defendants argue that Plaintiffs have not alleged that they were
motivated by invidious discrimination.
However, in the context of a
discrimination claim, plaintiffs are not required to plead facts that
establish the elements of their prima facie case.
Whitley v. Taylor
Bean & Whitacker Mortg. Corp., 607 F.Supp.2d 885, 901 (N.D. Ill.
2009).
Plaintiffs allege that Defendants refused to provide them
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with a reasonable accommodation, but overlooked the fact that other,
non-disabled residents, kept dogs in the building.
This raises at
least a minimal inference that Defendants acted with a discriminatory
motive.
Because Plaintiffs’ allegations are sufficient to put
Defendants on notice of their claim, Count II may stand.
C.
Plaintiffs’
private
Nuisance (Count IV)
nuisance
claim
alleges
that
Defendants
interfered with their access to their property and prevented them
from taking certain routes through the building.
Illinois law defines a private nuisance as “a substantial
invasion of another’s interest in the use and enjoyment of his or her
land.”
“The
Dobbs v. Wiggins, 929 N.E.2d 30, 38 (Ill. App. Ct. 2010).
invasion
unreasonable.”
must
be
either
intentional
or
negligent,
and
Id. (quoting Willmschen v. Trinity Lakes Improvement
Ass'n, 840 N.E.2d 1275, 1282 (2005)).
Whether a particular activity
constitutes a nuisance is generally a question of fact. Dobbs, 929
N.E.2d at 39.
What constitutes a nuisance “is incapable of any exact
or comprehensive definition.”
Control Bd.,
Shell Oil Co. v. Ill. Pollution
346 N.E.2d 212, 216 (Ill. App. Ct. 1976).
However, Illinois courts have traditionally defined the term in
certain ways, none of which jell with Plaintiffs’ claim here.
Typically, a nuisance occurs when a property owner uses its own
property in a manner which results in a non–trespassory invasion of
another’s interest in the use and enjoyment of his or her own land.
Kolstad v. Rankin, 534 N.E.2d 1373, 1380 (Ill. App. Ct. 1989); Great
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Atl. & Pac. Tea Co., Inc. v. LaSalle Nat’l Bank, 395 N.E.2d 1193,
1198 (Ill. App. Ct. 1979).
In Great Atl., relied upon by Plaintiffs
here, the Court held that a grocery store that leased space in a
shopping
center
stated
a
claim
for
nuisance
against
another
leaseholder that planned to construct a drive–in bank which would
have disrupted traffic patterns in the parking lot and deprive the
grocery store of parking spaces.
Id. at 1199.
Plaintiffs argue that
Great Atl. stands for the proposition that a disruption in their
access to their property can constitute a nuisance under Illinois
law.
However, this case arises in a significantly different context.
Plaintiffs are not claiming that Defendants unreasonably used their
own property, interfering in Plaintiffs’ use and enjoyment of their
home.
Rather, they contend that Defendants, as managers of their
condo, made rules that interfered with the Plaintiff’s ability to use
the common areas of the property as they wished.
Plaintiffs cite no
cases in which a condo owner was allowed to bring a nuisance claim
because on the basis of rules imposed by the condo board.
As such,
the Court declines to stretch the tort of nuisance to reach this type
of claim.
Cf. Cotton v. Duncan, No. 93 C 3875, 1993 WL 473622, at *6
(N.D. Ill. Nov. 15, 1993) (refusing to allow nuisance claim to go
forward where court would have to “innovate boldly in the name of the
Illinois courts.”) (internal quotation omitted). The Court dismisses
Count IV for failure to state a claim upon which relief can be
granted.
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D.
Intentional Infliction of Emotional Distress (Count V)
Plaintiffs
intentional
allege
infliction
that
of
they
are
emotional
entitled
distress
to
recover
(“IIED”)
for
because
Defendants “repeatedly harassed and humiliated [them], tracked their
movements, imposed unreasonable demands and restrictions on their
movements, and made them feel unsafe and unwelcome in their own home
and inferior to the other residents of Hollywood Towers.”
Pls.’
Compl. ¶ 78.
To
state
a
claim
for
intentional
infliction
of
emotional
distress (“IIED”) under Illinois law, Plaintiffs must show that: (1)
Defendants’
conduct
was
extreme
and
outrageous;
(2)
Defendants
intended to cause severe emotional distress or knew their conduct was
highly likely to cause severe emotional distress; and (3) their
conduct did in fact cause severe emotional distress.
Fahey, 533 N.E.2d 806, 809 (Ill. 1988).
McGrath v.
“The law intervenes only
where the distress inflicted is so severe that no reasonable man
could be expected to endure it.”
Id. (quoting Restatement (Second)
of Torts § 46, cmt j, at 77-78 (1965)).
Plaintiffs’ allegations are insufficient because Defendants’
conduct was neither extreme nor outrageous. Their allegations amount
to a dispute over whether Defendants went far enough in accommodating
Mary Jo’s disability, an issue that will be decided as part of
Plaintiffs’ claim under the FHAA for failure to accommodate.
That
Defendants brought alleged violations of the building rules to the
Plaintiffs’ attention is not enough to state a claim for IIED.
- 20 -
See
Cavalieri-Conway
v.
L.
Butterman &
Assocs.,
992
F.Supp.
995,
1010–11 (N.D. Ill. 1998) (holding that plaintiff failed to state a
claim for IIED when, at best, she alleged that she had been subjected
to a “couple of insults and the disfavor of building management”);
Roseborough v. Cottonwood Apartments, 94 C 3708, 1994 WL 695516, at
*3–4
(N.D. Ill. Dec. 9, 1994) (holding that failure to accommodate
did not rise to the level of IIED).
Plaintiffs
ask
this
Court
to
consider
the
authority
that
Defendants had over their living conditions in determining whether
their conduct was outrageous.
See Kolegas v. Heftel Broad. Corp.,
607 N.E.2d 201, 211 (Ill. 1992) (noting that outrageous nature of
conduct may arise from defendant’s abuse of power).
They also argue
that Defendants were aware that Mary Jo was particularly susceptible
to emotional distress.
Id.
But while these factors are worthy of
consideration, it is clear that Defendants’ alleged actions do not
meet
the
high
threshold
for
extreme
and
outrageous
conduct.
Accordingly, Count V is dismissed for failure to state a claim.
E.
Plaintiffs
Constructive Eviction (Count VI)
allege
that
Defendants’
failure
to
provide
a
reasonable accommodation deprived them of the use of their condo and
forced them to sell their home, resulting in a constructive eviction.
Generally, a constructive eviction results from a landlord's
failure to keep the premises in a tenantable condition.
Urban Co. v. Paolucci,
604 N.E.2d 967, 969 (Ill.
JMB Props.
App. Ct. 1992).
It is unclear whether Illinois law recognizes constructive eviction
- 21 -
in the context of condo ownership.
This Court has found no Illinois
cases addressing the issue, nor have the parties.
Plaintiffs rely in part on Bloch, in which the Seventh Circuit
analogized to the common law of constructive eviction in examining a
claim under § 3604(a) of the Fair Housing Act, which makes it
unlawful to refuse to sell or rent “or otherwise make unavailable or
deny” property to a person because of their religion.
F.3d at 776–77.
The Court held
Bloch, 587
that § 3604(a) reaches post-
acquisition conduct that compels the owner to leave the property.
Id.
Citing Bloch, a California district court recently held that
constructive
eviction
may
occur
outside
the
landlord-tenant
relationship, although the court did not address the doctrine’s
applicability to condo owners.
See Campos v. Bank of America, Inc.,
No. 11 C 431, 2011 WL 2600888, at *6 (N.D. Cal. June 30, 2011).
However, even if this theory is available, Plaintiffs’ claim
suffers from another problem. Generally, there is no cause of action
for constructive eviction unless the tenant surrenders possession of
the premises within a reasonable time.
N.E.2d at 969.
have
waived
JMB Props. Urban Co., 604
If the tenant fails to do so, he is considered to
the
landlord’s
breach
of
covenant.
Id.
The
reasonableness of a delay is generally a question of fact, but can be
a
question
conclusion.
of
law
if
reasonable
minds
would
reach
the
same
City of Chi. v. Am. Nat. Bank, 408 N.E.2d 379, 381 (Ill.
App. Ct. 1980).
- 22 -
Illinois courts have held that in determining what constitutes
a reasonable time to abandon the premises, the court should consider
whether the tenant relied upon promises of the landlord to fix the
conditions at issue, as well as the time required to find new
housing.
Am. Nat. Bank & Trust Co. of Chi. v. Sound City, U. S. A.,
Inc., 385 N.E.2d 144, 146 (Ill. App. Ct. 1979).
However, here, Plaintiffs do not allege that they relied upon
promises by Defendants to offer a reasonable accommodation. In fact,
the Complaint alleges that Defendants consistently and repeatedly
refused to agree to their requested accommodations.
By April 2010,
at the latest, when Armenio responded to Plaintiffs on behalf of the
Condo Board, it was clear that the Condo Board did not plan to
reconsider its policies and grant the requested accommodations.
Plaintiffs remained in their condo for more than a year after that
and did not sell until July 28, 2011.
As part of his affidavit, Armenio averred that Plaintiffs put
their home on the market for resale prior to requesting a reasonable
accommodation, but it did not sell at that time.
However, this Court
cannot consider evidence outside of the Complaint in ruling on a
12(b)(6) motion
judgment.
without
converting
it
to
a
motion
for
summary
See Miller v. Herman, 600 F.3d 726, 733 (7th Cir. 2010).
So the Court disregards Armenio’s affidavit.
Even so, Plaintiffs’ Complaint shows a significant gap between
their request for certain accommodations and the sale of their condo.
Having waited so long to move, they waived any right they may have
- 23 -
had to bring a claim for constructive eviction.
See Shaker and
Assocs., Inc. v. Med. Techs. Grp., Ltd., 733 N.E.2d 865, 873 (Ill.
App. Ct. 2000) (finding delay of 10 months in vacating premises after
heating and cooling system malfunctioned was amounted to waiver of
constructive eviction claim); RNR Realty, Inc. v. Burlington Coat
Factory Warehouse of Cicero, Inc., 522 N.E.2d 679, 685 (Ill. App. Ct.
1988) (finding no constructive eviction occurred when tenant waited
18 months after it lost parking lots to vacate the premises).
For
these reasons, the Court dismisses Count VI.
F.
Proper Parties
Because the Court is allowing Mary Jo’s claims under the FHAA to
go forward, it will address Defendants’ argument that neither her
husband nor Sudler Building Services are proper parties.
1.
Whether Ralph Stevens is a Proper Plaintiff
Defendants argue that Ralph Stevens is not a proper plaintiff
because he has not suffered a “distinct and palpable injury” under
the FHAA.
See Thomas v. City of Chi., 155 F.Supp.2d 820, 823 (N.D.
Ill. 2001) (noting that requirement for standing to sue under the Act
is the “Art. III minima of injury in fact:
that the plaintiff allege
that as a result of defendant’s actions he has suffered a “distinct
and palpable injury.”) (internal citations omitted).
The FHAA makes it unlawful to discriminate in the sale or
rental, or “otherwise make unavailable or deny” a dwelling to any
buyer or renter because of handicap of the buyer or renter or “any
- 24 -
person associated with [a disabled] buyer or renter.”
§ 3604(f)(1)(C).
42 U.S.C.
The cases relied upon by Defendants show that
concerned bystanders may not sue under the FHAA.
E.g., Wilson v.
Glenwood Intermountain Props., Inc., 98 F.3d 590, 596 (10th Cir.
1996).
However, Defendants have not cited, nor has the Court found, a
case where the spouse of a disabled individual, who lived in the same
home, was found not to have standing to sue under the FHAA.
Clearly,
such spouses have standing under the FHAA when they are denied the
ability to rent property or when they are retaliated against for
opposing discrimination.
See Grieger v. Sheets, 689 F.Supp. 835,
840 (N.D. Ill. 1988); Valenti v. Salz, No 94 C 7053, 1995 WL 417547,
at *3 (N.D. Ill. July 13, 1995).
The distinct and palpable injury to Ralph is perhaps less
obvious in this case.
However, to the extent Defendants refused to
provide a reasonable accommodation to Mary Jo, their refusal also
affected Ralph. See HUD v. Ocean Sands, 1993 WL 343530 (H.U.D.A.L.J.
September 3, 1993) (holding that a prima facie case for failure to
provide
a
reasonable
accommodation
can
associated with a handicapped person”).
be
made
by
“a
person
As such, the Court finds
that Ralph Stevens has standing under the FHAA.
2.
Whether Sudler Building Services is a Proper Defendant
Defendants additionally argue that Sudler Building Services is
not a proper defendant because it is a separate entity from Sudler
Property Management, and only the later provides management services
- 25 -
to the condo board.
Defendants rely on FED. R. CIV . P. 21; however,
that rule typically is used to cure defects in joinder.
Xenakis v.
Time Ins. Co., No 08 C 08-5225, 2008 WL 5397156, at *5 (C.D. Cal.
Oct. 30, 2008).
Rather, the Court interprets this as an argument
that the Complaint fails to state a claim upon which relief can be
granted against Sudler Building Services because its conduct does not
fall within the FHAA.
The
relevant
“discriminate
statutory
against
any
provision
person
in
the
makes
it
terms,
unlawful
to
conditions,
or
privileges of sale or rental of a dwelling, or in the provision of
services or facilities in connection with such dwelling, because of
a handicap. . . .”
Building Services
42 U.S.C. § 3604(a).
is
an
improper
party,
In arguing that Sudler
Defendants rely
on
an
affidavit from Armenio, in which he states that he is employed by
Sudler & Co., which owns and operates Sudler Property Management,
which
provides
management
services
to
the
Hollywood
Towers
Condominium Association. Sudler Building Services, Armenio avers, is
a
different
entity
Hollywood Towers.
and
has
no
management
responsibility
over
Rather, it facilitates services between Sudler
Property Management and outside vendors for services such as cable
television, window cleaning, and janitorial supplies.
As noted,
however, the Court cannot consider the Armenio affidavit in ruling on
a Rule 12(b)(6) motion.
See Miller, 600 F.3d at 733.
Plaintiffs have a more fundamental problem, however.
Their
Complaint does not allege that Sudler Building Services discriminated
- 26 -
against Plaintiffs in their provision of services to Hollywood
Towers. Plaintiffs seem to argue that the mere provision of services
to
a
building
where
discriminatory
conditions
exist
triggers
liability under the statute, but cite no case law in support of this
proposition.
As such, the Court dismisses Sudler Building Services
from the Complaint.
IV.
CONCLUSION
For the reasons stated herein, the Defendants’ Motion to Dismiss
Plaintiffs’ Amended Complaint [48] is granted in part and denied in
part.
Counts I, II, and III may go forward, but the remainder of the
Complaint is dismissed.
Additionally, Defendant Sudler Building
Services is dismissed from the Complaint.
Finally, the Court denies as moot the Defendants’ Motion to
Dismiss Plaintiffs’ Initial Complaint [28].
IT IS SO ORDERED.
Harry D. Leinenweber, Judge
United States District Court
DATE:12/29/2011
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