Johnson et al v. CMC Property Leasing, Inc. et al

Filing 18

MEMORANDUM AND ORDER. The defendants' motions to dismiss (Dks. 8, 10) are granted as to the FHA claims brought in counts one and two, and supplementary jurisdiction over the remaining state law claims pleaded in counts three through seven is declined pursuant to 28 U.S.C. § 1367(c)(3). See attached for more details. Signed by U.S. District Senior Judge Sam A. Crow on 12/4/2012. (bmw)

IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF KANSAS
ALMA JOHNSON, and
JAY JOHNSON as legal guardian
for KRISTIN JOHNSON,
Plaintiffs,
Vs.

No. 12-1309-SAC

CMC PROPERTY LEASING, INC.,
and PERRY HILT,
Defendants.
MEMORANDUM AND ORDER
In April of this year, Alma Johnson leased a home from Perry Hilt
and his leasing agent, CMC Property Leasing, Inc. At Ms. Johnson’s request
and with Mr. Hilt’s approval, modifications were made to the home to
accommodate Ms. Johnson’s disabled daughter. Mr. Hilt sent Ms. Johnson a
two-page “Warning and Good Cause Notice,” dated July 26, 2012. The notice
laid out three good cause grounds for possible termination of lease: (1)
inhabited by persons not on the lease, (2) numerous instances of damage to
property, and (3) the unauthorized removal and retention of a threshold by
the contractor. (Dk. 7-3). In response to this notice, Ms. Johnson spoke with
Mr. Hilt and then had her attorney contact him. When Mr. Hilt refused to
withdraw the notice, the plaintiffs filed this action asserting not only
violations of the Fair Housing Act, the Kansas Act Against Discrimination and
the Kansas Consumer Protection Act, but also claims for breach of contract

and invasion of privacy. Mr. Hilt seeks to dismiss all claims but the breach of
contract claim. (Dk. 8) CMC Property Leasing also seeks dismissal joining the
issues and arguments of Mr. Hilt (Dk. 10).
FED. R. CIV. P. 12(B)(6) STANDARDS
In deciding a Rule 12(b)(6) motion, a court accepts as true “all
well-pleaded factual allegations in a complaint and view[s] these allegations
in the light most favorable to the plaintiff.” Smith v. United States, 561 F.3d
1090, 1098 (10th Cir. 2009), cert. denied, 130 S. Ct. 1142 (2010). This duty
to accept a complaint’s allegations as true is tempered by the principle that
“mere labels and conclusions,’ and ‘a formulaic recitation of the elements of
a cause of action’ will not suffice; a plaintiff must offer specific factual
allegations to support each claim.” Kansas Penn Gaming, LLC v. Collins, 656
F.3d 1210, 1214 (10th Cir. 2011) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007)). As recently clarified by the Supreme Court, the
standard under Rule 12(b)(6) is that to withstand a motion to dismiss, “a
complaint must contain enough allegations of fact, taken as true, to state a
claim to relief that is plausible on its face.’” Al-Owhali v. Holder, 687 F.3d
1236, 1239 (10th Cir. 2012) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009)). Thus, “a plaintiff must offer sufficient factual allegations to ‘raise a
right to relief above the speculative level.’” Kansas Penn Gaming, 656 F.3d
at 1214 (quoting Twombly, 550 U.S. at 555). “The plausibility standard is
not akin to a ‘probability requirement,’ but it asks for more than a sheer
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possibility that a defendant has acted unlawfully.’” Iqbal, 556 U.S. at 678
(quoting Twombly, 550 U.S. at 556). It follows then that if the “complaint
pleads facts that are ‘merely consistent with’ a defendant’s liability it ‘stops
short of the line between possibility and plausibility of “entitlement to
relief.”’” Id. “’A claim has facial plausibility when the [pleaded] factual
content . . . allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.’” Rosenfield v. HSBC Bank,
USA, 681 F.3d 1172, 1178 (10th Cir. 2012). “Thus, in ruling on a motion to
dismiss, a court should disregard all conclusory statements of law and
consider whether the remaining specific factual allegations, if assumed to be
true, plausibly suggest the defendant is liable.” Kansas Penn Gaming, 656
F.3d at 1214. The Tenth Circuit regards the Twombly-Iqbal decisions as
crafting a new “refined standard” whereby “plausibility refers to ‘the scope of
the allegations in a complaint: if they are so general that they encompass a
wide swath of conduct, much of it innocent, then the plaintiffs “have not
nudged their claims across the line from conceivable to plausible.”’” Khalik v.
United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012) (quoting Robbins v.
Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting in turn Twombly,
550 U.S. at 570).
In discrimination claims, as with others, the court’s task
begin[s] by identifying pleadings that, because they are no more than
conclusions, are not entitled to the assumption of truth. While legal
conclusions can provide the framework of a complaint, they must be
supported by factual allegations. When there are well-pleaded factual
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allegations, a court should assume their veracity and determine
whether they plausibly give rise to an entitlement to relief.
Iqbal, 556 U.S. at 679, 684 (applies to all civil actions including
discrimination suits). Rule 9 “excuses a party from pleading discriminatory
intent under an elevated pleading standard. It does not give him license to
evade the less rigid-though still operative-strictures of Rule 8.” Iqbal, 556
U.S. at 686–87. So, “the Federal Rules do not require courts to credit a
complaint’s conclusory statements [on discriminatory intent] without
reference to its factual context.” Id. at 686. (rejecting the argument that a
conclusory allegation of discriminatory intent is sufficient) “Threadbare
recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Id. at 678. The assertion of discriminatory intent
must be more than a conclusion; it must be supported “by the necessary
factual allegations to support a reasonable inference of discriminatory
intent.” McReynolds v. Merrill Lynch & Co., Inc., 694 F.3d 873, 886 (7th Cir.
2012) (citing Iqbal, 556 U.S. at 679). The Supreme Court in Iqbal rejected
as inadequate the following pleading on discriminatory intent: the
defendants “knew of, condoned, and willfully and maliciously agreed to
subject [the plaintiff] to harsh conditions of confinement as a matter of
policy, solely on account of [his] religion, race, and/or national origin and for
no legitimate penological interest.” 556 U.S. at 680.
Once the court finds adequate allegations of intentional
discrimination, the court then moves to the plausibility inquiry. While the
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complaint “need not present ‘detailed factual allegations,’ it must allege
sufficient ‘factual content’ from which a court, informed by its ‘judicial
experience and common sense’ could ‘draw the reasonable inference,’” that
defendants discriminated against the plaintiffs on the basis of disability. See
Keys v. Humana, Inc., 684 F.3d 605, 610 (6th Cir. 2012) (quoting Iqbal, 556
U.S. at 678). The plaintiffs must allege “more than a sheer possibility that a
defendant has acted unlawfully.” Iqbal, 556 U.S. at 678. They need to allege
enough “by way of factual content to ‘nudg[e]’ his claim of purposeful
discrimination ‘across the line from conceivable to plausible.’” Iqbal, 556
U.S. at 683 (quoting Twombly, 550 U.S. at 570). “As between that ‘obvious
alternative explanation’ for the . . . [adverse treatment], and the purposeful,
invidious discrimination respondent asks us to infer, discrimination” must be
a “plausible conclusion.” Iqbal, 556 U.S. at 682 (quoting Twombley, 550
U.S. at 567).
ANALYSIS
Counts one and two allege violations of the Fair Housing Act
(“FHA”), Title VIII of the Civil Rights Act of 1968, 42 U.S.C. § 3601, et seq.
The FHA includes a prohibition of housing discrimination based on “the
handicap of” the “renter,” “a person residing in or intending to reside in that
dwelling after it is . . . rented . . .,” or “any person associated with that . . .
renter.” 42 U.S.C. § 3604(f). Subject matter jurisdiction of this action, as
pleaded, depends on the FHA counts, 42 U.S.C. §§ 3612 and 3613, and
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supplementary jurisdiction is asserted for the remaining counts, 28 U.S.C. §
1367. The dismissal of the federal claims (FHA counts) at this stage typically
would include an order declining supplemental jurisdiction pursuant to 28
U.S.C. § 1367(c)(3). See Koch v. City of Del City, 660 F.3d 1228, 1248
(10th Cir. 2011) (“When all federal claims have been dismissed, the court
may, and usually should, decline to exercise jurisdiction over any remaining
state claims.” (internal quotation marks and citation omitted)), cert. denied,
133 S. Ct. 211 (2012). Thus, the court will focus its 12(b)(6) inquiry on the
federal claims, as the pleading deficiencies are substantial.
COUNT ONE
The defendants argue the plaintiffs have not alleged an
actionable claim under any of provisions to § 3604. The defendants say
there are no factual allegations showing that the defendants discriminatorily
denied or made unavailable any rental dwelling in violation of § 3604(f)(1);
that the defendants discriminated against the plaintiffs in the terms,
conditions, or privileges of a rental dwelling in violation of § 3604(f)(2); or
that the defendants discriminated against the plaintiffs in the provision of
services or facilities in connection with the rental dwelling in violation of §
3604(f)(2).
The plaintiffs explain count one to be a terms and conditions
claim under (f)(2) that alleges the defendant Hilt acted with discriminatory
intent in attempting to evict Ms. Johnson’s disabled daughter, Kristin
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Johnson, based on the property damage caused by Kristin’s wheelchair and
other implements needed for her mobility and care. Besides the good cause
notice, plaintiffs say the complaint alleges the defendant Hilt “orally raised”
this property damage issue in “conversations” with the plaintiff Johnson.
(Dk. 7, ¶ 18). Because the defendant Hilt clearly has attempted to evict
them “on account of issues related to” the daughter’s disability, the plaintiffs
believe these facts alone sufficiently show a discriminatory intent. (Dk. 13,
p. 4). The plaintiffs also respond that there is more from which the
defendant Hilt’s discriminatory intent can be inferred: namely, his efforts to
evict the plaintiffs for “impermissible reasons.” Id. The plaintiffs say they
have alleged direct evidence of discriminatory intent in the defendant Hilt’s
retort to Ms. Johnson that his rental unit “is not a Habitat house.” (Dk. 7, ¶
19). The plaintiffs regard this comment as “an inartfully coined insult directly
at Kristin’s disability.” (Dk. 13, p. 5) Finally, the plaintiffs alleged that the
defendant Hilt’s unauthorized entry into the rental home to take
photographs of the home’s condition “suggests that he was disturbed by the
presence of a wheel-chair bound individual in the home and was looking for
ways to evict her.” Id. at pp. 5-6.
From reading the amended complaint, the court understands
count one to allege a § 3604(f)(2) terms and conditions claim of
discrimination in that the defendant Hilt discriminated against Ms. Johnson
and her daughter based on Kristin’s disability “by falsely claiming that Ms.
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Johnson is in default of the lease, unreasonably demanding her daughter
vacate the premises, and demanding Ms. Johnson make repairs in order to
allegedly cure the default.” (Dk. 7, ¶ 23). As factual allegations, the
plaintiffs include that “Ms. Johnson informed the Defendants that her
disabled daughter, Kristin and her legal guardian would be residing in the
property and that the property would require modifications for her
daughter.” (Dk. 7, ¶ 10). The defendant Hilt sent a good cause notice dated
July 26, 2012, to Ms. Johnson “citing the interior damages as a reason to
terminate the lease.” (Dk. 7, ¶ 17). The notice is attached to the amended
complaint. They also alleged that Hilt “takes issue primarily with the damage
to the property caused by wheelchairs and other implements” used in caring
for the “handicapped individuals living in the home.” Id. at ¶ 18. When Ms.
Johnson spoke with Hilt, he told her “this is not a Habitat house.” Id. at ¶
19. The amended complaint also refers to and attaches a copy of the email
sent by the plaintiff’s counsel to Hilt.
“To prevail on a disparate treatment claim, a plaintiff must show
proof of intentional discrimination.” HDC, LLC v. City of Ann Arbor, 675 F.3d
608 (6th Cir. 2012) (citation omitted). For proof, a plaintiff may rely on
direct evidence or circumstantial evidence making use of the burden-shifting
framework from McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
Id.; Boykin v. Gray, 2012 WL 4713012 at *4-*5 (D.D.C. 2012). “While the
12(b)(6) standard does not require that Plaintiff establish a prima facie case
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in her complaint, the elements of each alleged cause of action help to
determine whether Plaintiff has set forth a plausible claim.” Khalik, 671 F.3d
at 1192 (citations omitted). In circumstantial evidence cases, a plaintiff
“must put forth facts showing that he was treated differently than others
because of his disability.” Riccardo v. Cassidy, 2012 WL 651853 at *5
(N.D.N.Y. 2012) (citing Boykin v. Keycorp, 521 F.3d 202, 214-15 (2nd Cir.
2008) (sufficient to allege the plaintiff was “treated differently from similarly
situated loan applicants)).
In determining whether the amended complaint plausibly alleges
discriminatory intent, the court first identifies those unsupported conclusory
statements that should be disregarded. The allegation that Hilt
“discriminated against Ms. Johnson and her daughter on the basis of the
daughter’s disability” may recite an element to their terms and conditions
claim, but it is not supported by any factual allegations evidencing a
discriminatory intent. This is the type of general allegation, when lacking
factual enhancement, can be rejected as conclusory based on Iqbal and
subsequent decisions applying it. See McReynolds, 694 F.3d at 886.
Moreover, the allegations that Hilt is “falsely claiming that Ms. Johnson is in
default of the lease” and that Hilt is “unreasonably demanding her daughter
vacate the premises and demanding Ms. Johnson make repairs in order to
allegedly cure the default” are bare conclusions not bolstered by any facts
alleged in the amended complaint. The complaint plainly does not lay out
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allegations from which one can reasonably infer “falsity” or
“unreasonableness.” As these are not well-pleaded allegations, the court is
not to assume their veracity or determine plausibility based on them. Iqbal,
556 U.S. at 679.
What the plaintiffs now argue as allegations evidencing
discriminatory intent fail the plausibility standard, in that they do not offer
sufficient factual content from which the court based on its common sense
and experience can draw a reasonable inference that the defendant
discriminated against the plaintiffs on the basis of Kristin’s disability. The
court will discuss briefly each of the plaintiffs’ arguments.
There are insufficient facts to infer a discriminatory intent from
the allegation that Ms. Johnson informed Mr. Hilt that Kristin and her legal
guardian would be residing in the dwelling unit. Indeed, the complaint
alleges Mr. Hilt agreed with and helped coordinate modifications to the
dwelling unit for purposes of the daughter’s disability. Mr. Hilt’s good cause
notice attached to the amended complaint reads in relevant part: “Contract
was written to Alma Johnson. There are (3) individuals living in the house,
none of whom are (sic) Alma Johnson.” It also states: “All tenants living in
the property, none of whom are on the lease, need to be removed
immediately.” “Alma Johnson is who is on the contract. No one other than
name(s) on lease are to occupy the above mentioned property.” (Dk. 7-3,
pp. 1-2). Hilt’s good cause notice clearly relies on the plain terms of the
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written lease signed by Ms. Johnson and attached to the amended
complaint. The amended complaint does not allege that the notice falsely
asserts any relevant facts or terms of the lease. Finally and most
importantly, the plaintiffs do not allege circumstances showing that any
disparate or discriminatory enforcement of the lease’s plain terms.
It is not plausible to infer discriminatory intent merely from the
fact that Hilt’s notice of good cause includes property damage caused by a
wheelchair or other equipment used in caring for Kristin. The lease certainly
makes the tenant “responsible for any destruction, defacement, damage,
impairment, or removal of any part of the premises caused by an act or
omission of the TENANT or by any person . . . on the premises at any time
with the express or implied permission or consent of the TENANT.” (Dk. 701, p.3). The plaintiffs do not allege circumstances suggesting that Hilt
enforced this express term disparately as to support a reasonable inference
of discriminatory intent. Just because some or most of the damages were
caused by a wheelchair does not make into discrimination the landlord’s
effort to have those damages repaired according to the lease. The tenant is
responsible for “any destruction, defacement, [or] damage,” and there is
nothing alleged to show the landlord acted discriminatorily in enforcing that
term when and how he did. There are no other circumstances alleged to
nudge this claim across the line from conceivable to plausible.

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The plaintiffs also argue evidence of discriminatory intent from
the circumstance that Hilt’s good cause notice said cigarette butts were
found in the dwelling which was described as “non-smoking.” The plaintiffs
argue this is a pretextual basis for Hilt’s actions, as the lease does not
prohibit smoking. The amended complaint is devoid of any allegations to
support any such inferences. Moreover, the written lease states: “this
property is a non smoking unit and Tenant(s) and or their guests must
smoke outside of the property and dispose of cigarettes in fireproof
container.” (Dk. 7-1, ¶ 26). There is no factual allegation of disparate
treatment in the defendant’s enforcement of this lease provision.
The plaintiffs allege the defendant Hilt violated the lease in
entering the rental unit without giving reasonable notice. The plaintiffs offer
nothing but speculation to connect the improper entry with the alleged
discriminatory motive. The lease gave Hilt the right of access to inspect the
premises upon reasonable notice during reasonable hours. There are no
allegations to support a reasonable inference of discriminatory intent merely
from the defendant’s decision to enter and inspect the premises without
prior notice.
Finally, the plaintiffs allege the defendant Hilt said to Ms.
Johnson that “this is not a Habitat house.” Though the plaintiffs argue this
comment is “direct evidence of discriminatory intent,” the amended
complaint fails to allege any connection between this comment and a motive
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to discriminate on the basis of Kristin’s disability. What the plaintiffs have
alleged or argued about the circumstances of the defendant’s comment do
not plausibly suggest the comment is direct evidence of a discriminatory
intent. While the plaintiffs certainly may understand the comment to be an
“insult,” their allegations do not show that it is more plausible to infer this
insult was directed at Kristin’s disability than at the occupants’ obvious lack
of regard and care for the rental dwelling.
Disregarding the conclusory statements of discriminatory intent
and accepting the properly alleged facts as true, the court finds that the
plaintiffs have failed to allege sufficient facts that when considered
individually and collectively would support a plausible conclusion of
intentional discrimination on the basis of disability. The plaintiffs have not
alleged “more than a sheer possibility” of a discriminatory intent. Stated
another way, their factual allegations do not move their claim beyond what
is conceivable into what is plausible. Count one fails to state a claim upon
which relief can be granted.
COUNT TWO
The defendant argues this count offers nothing but conclusory
statements for which there are no factual allegations to support a plausible
claim for relief. The plaintiffs respond that they have alleged that the
defendant Hilt “through his conduct and action described above violated 42
U.S.C. Section 3617 by coercing, intimidating, threatening, or interfering
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with Ms. Johnson and Kristin Johnson in the exercise and enjoyment, and on
account of their having exercised and enjoyed her fair housing rights under
Section 804 of the Fair Housing Act.” (Dk. 7, ¶ 27). In arguing against
dismissal, the plaintiffs emphasize their allegations that the defendant
entered the property without prior notice, took photographs of the property
damage, and then demanded immediate repairs of the damaged property.
(Dk. 13, p. 7).
A § 3617 claim requires a plaintiff to show:
(1) the plaintiff is a member of an FHA-protected class; (2) the
plaintiff exercised a right protected by §§ 3603–06 of the FHA, or
aided others in exercising such rights; (3) the defendants' conduct was
at least partially motivated by intentional discrimination; and (4) the
defendants' conduct constituted coercion, intimidation, threat, or
interference on account of having exercised, aided, or encouraged
others in exercising a right protected by the FHA. King v. Metcalf 56
Homes Ass'n, Inc., 385 F.Supp.2d 1137, 1142–43 (D.Kan.2005).
South Middlesex Opportunity Council, Inc. v. Town of Framingham, 752 F.
Supp. 2d 85, 95 (D. Mass. 2010). Just as with a § 3604 claim, discriminatory
intent must be alleged and proved for a § 3617 claim. Id. at 95-96. The
plaintiffs do not offer any additional factual allegations to this count. Thus, it
fails to allege a plausible conclusion of intentional discrimination for the
reasons stated above.
REMAINING COUNTS
The court declines to exercise supplemental jurisdiction over the
plaintiffs’ state law claims and does not address here the defendants’
challenges to those pleaded counts.
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LEAVE TO AMEND
The plaintiffs summarily “request leave to amend” should the
court find “deficiencies in the Amended Complaint.” (Dk. 13, p. 10). Other
than citing the general standard of liberality for granting leave, the plaintiffs
have not filed a formal motion to amend, have not attached the proposed
amendment and have not provided “adequate notice of the basis of the
proposed amendment.” See Calderon v. Kansas Dept. of Social & Rehab.
Serv., 181 F.3d 1180, 1186-87 (10th Cir. 1999) (“By requiring notice to the
court and the opposing party of the basis for the motion, [Fed. R. Civ. P.]
rule 7(b)(1) advances the policies of reducing prejudice to either party and
assuring the court can comprehend the basis of the motion and deal with it
fairly.” (internal quotation marks and citations omitted)). This “requirement
of notice merely assures that we do not require district courts to engage in
independent research or read the minds of litigants to determine if
information justifying an amendment exists.” Id. at 1187 (internal quotation
marks and citation omitted); Hall v. Witteman, 584 F.3d 859, 868 (10th Cir.
2009) (the plaintiff “nowhere explained how a proposed amendment would
cure the deficiencies identified by the district court.”). As in Calderon and in
Glenn v. First Nat’l Bank, 868 F. 2d 368, 370 (10th Cir. 1989), the plaintiffs’
single paragraph here simply makes “a bare request in their response to a
motion to dismiss” asking for leave but offering no particular grounds for the
request as to even constitute an application for leave. 181 F.3d at 1186. The
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plaintiffs’ request does not meet the requirements of D. Kan. Rule 15.1, and
it does not offer sufficient notice on which to base a ruling.
IT IS THEREFORE ORERED that the defendants’ motions to
dismiss (Dks. 8, 10) are granted as to the FHA claims brought in counts one
and two, and supplementary jurisdiction over the remaining state law claims
pleaded in counts three through seven is declined pursuant to 28 U.S.C. §
1367(c)(3).
Dated this 4th day of December, 2012, Topeka, Kansas.

s/ Sam A. Crow
Sam A. Crow, U.S. District Senior Judge

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