Treece et al v. Harlan
Filing
420
ORDER AND REASONS: IT IS ORDERED that Plaintiffs Dwayne Treece, Phallon Treece, and Clifford Harlan's 401 motion to revise or modify partial summary judgment is GRANTED. The 2/12/2021, 377 Order and Reasons granting summary judgment in fav or of Defendants is modified as follows: IT IS HEREBY ORDERED that Plaintiffs' 212 Motion for Partial Summary Judgment is DENIED. Defendants' 204 Motion for Partial Summary Judgment is GRANTED IN PART. Defendants are entitled to summar y judgment that Plaintiffs have no claim against them for disparate impact discrimination under 42 U.S.C. § 3604(a).IT IS FURTHER ORDERED that Defendants Perrier Condominium Owners Association Inc., Katherine E. Acuff, Christopher J. Jablonowski, and Hanna M Haile's 391 motion to enter final judgment is DENIED. Signed by Judge Susie Morgan on 10/28/2021.(pp)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DWAYNE TREECE, ET AL.,
Plaintiffs
CIVIL ACTION
VERSUS
NO. 17-10153
PERRIER CONDOMINIUM OWNERS
ASSOCIATION, INC., ET AL.,
Defendants
SECTION: “E” (3)
ORDER AND REASONS
Before the Court is a motion to revise or modify partial summary judgment1 by
Plaintiffs Dwayne Treece, Phallon Treece, and Clifford Harlan (collectively, “Plaintiffs”).
Defendants Perrier Condominium Owners Association Inc. (the “PCOA”), Katherine E.
Acuff, Christopher J. Jablonowski, and Hanna M Haile (collectively, “Defendants”) have
filed an opposition.2 Plaintiffs have filed a reply.3 Also before the Court is Defendants’
motion to enter final judgment.4 Plaintiffs have filed an opposition.5 Defendants have
filed a reply.6
The Court has considered the briefs, the record, and the applicable law, and now
issues its rulings.
BACKGROUND
I.
Underlying Facts
Plaintiffs Dwayne and Phallon Treece allege that in 2017 they sought to rent a unit
in the Perrier Condominium for themselves and their four young children.7 The Treeces
R. Doc. 401.
R. Doc. 415.
3 R. Doc. 418.
4 R. Doc. 391.
5 R. Doc. 414.
6 R. Doc. 419.
7 R. Doc. 16 at ¶¶ 20-26.
1
2
1
first contacted Defendant Hanna Haile about renting her unit at the Perrier
Condominium.8 Ultimately, they did not rent from Haile, allegedly because she refused
to rent them her apartment due to their having young children.9
In August 2017, Plaintiffs Dwayne and Phallon Treece, along with their four
children, rented a different unit at the Perrier Condominium owned by Plaintiff Clifford
Harlan.10 Defendants Katherine Acuff, Christopher Jablonowski, and Haile individually
own the other three units.11 The four unit owners are the sole members of the Perrier
Condominium
Owner’s
Association
(PCOA),
which
administers
the
Perrier
Condominium regime.12 The Treeces allege that, after they moved into their unit, the
Defendants took various actions to harass and attempt to evict them based on their having
four children who lived in the unit.13
The Court previously found the undisputed facts material to motions for summary
judgment filed by the Plaintiffs14 and Defendants15 to be, in relevant part:
The Perrier Condominium contains four units. Plaintiff Harlan and
Defendants Acuff, Jablonowski, and Haile each own one of the units. The
four unit owners are the sole members of the Perrier Condominium Owners
Association (PCOA), which governs the Perrier Condominium regime. In
August 2017, the Treeces, a family of six, rented Unit 6036 from Plaintiff
Harlan.
The Perrier Condominium is subject to a facially neutral use and occupancy
rule stated in the Condominium Declaration. The occupancy rule states “no
unit shall be occupied, even for permitted use, by more than one (1) person
making such Unit his or her residence for each two hundred fifty (250)
square feet of floor area within the Unit.” The occupancy rule allows up to
five people to occupy Unit 6036. The Treece family exceeds the occupancy
limit as applied to Unit 6036.
Id. at ¶¶ 21-24.
Id.
10 R. Doc. 16 at ¶¶ 1, 13; R. Doc. 49 at ¶¶ 1, 13.
11 R. Doc. 16 at ¶¶ 14–17; R. Doc. 49 at ¶¶ 14–17.
12 Id.
13 R. Doc. 16 at ¶¶ 34-57.
14 R. Doc. 212.
15 R. Doc. 204.
8
9
2
The PCOA, in part, justifies the occupancy limit as necessary to reduce wear
and tear on the Perrier Condominium and its infrastructure. PCOA
governing documents empower the PCOA to make repairs to units at the
expense of the unit owners. The PCOA has not computed the maximum
number of residents that the Perrier Condominium’s infrastructure can
handle.
The PCOA also justifies its occupancy rule based on “quality of life” concerns
such as street parking, backyard space, garbage can management, laundry
use, and noise. The Perrier Condominium does not have a parking lot. The
Perrier Condominium has four garbage cans. The PCOA rules include a rule
governing noise and nuisance. Harlan’s unit could be modified to
ameliorate noise concerns.
On August 16, 2017, Harlan informed Acuff, Jablonowski, and Haile by
email that he had rented his unit to the Treeces. Acuff, whose unit abuts
Harlan’s unit, responded by email asking, “How long is their lease? And how
many children do they have? They are moving in as I write this and I am
listening to a kid screaming through the wall and running all over the
floors.” Haile responded to Harlan’s email and stated, “[t]his renter,
Dwayne, had actually contact me in regards to renting my unit the very first
week I posted it. He came to look with his youngest child. He is a nice guy
but I decided the condo was not the best fit as they have 3 small children.”
Acuff responded by stating “this could be a serious issue. Reasonable
limitations on occupancy are 2 people per bedroom. I don’t even know that
the systems in this building can handle that many people in one unit.”
The next day, Acuff emailed the unit owners and stated she had conducted
a social media search confirming the Treeces had three children, maybe
four. Acuff then texted Haile and Jablonowski a picture of the Treeces’
stroller parked in a common area of the Perrier Condominium. Haile
responded, “This is completely unacceptable, they will not be storing
strollers like that.” Soon after, Acuff shared with Haile that she had
suggested to Harlan he could evict the Treeces for lying on their application
by not listing all of their children. Haile said Harlan needed to get this
“sorted out” and that he should be able to break the lease. An hour later,
Acuff texted Harlan and Haile that “the bylaws also require 250 per square
feet, which means you need 1500” square feet to accommodate six people.
The next day, on August 18, 2017, Acuff texted Haile that she was going to
propose a change to the bylaws to limit occupancy to three people per unit.
Five days later, on August 21, 2017, Acuff emailed the other three owners to
say she would like to have a condominium association meeting “to discuss
possible amendments to our bylaws in light of recent events. In that same
vein, I think we need to have our bylaws reviewed and updated by an
attorney.” Acuff also emailed Harlan suggesting various bases on which
Harlan could seek to terminate the Treeces’ lease, including violations of
noise restrictions and the occupancy limit. Harlan wrote back that “the fair
3
housing act says one can’t be discriminated against based on family status,”
and he was concerned evicting a family for failing to list their minor children
on the lease might violate the Fair Housing Act. Acuff responded on August
21, 2017, stating “[y]ou can’t discriminate on family status, but you can
reasonably restrict occupancy levels.”
On August 22, 2017, Harlan delivered to Dwayne and Phallon Treece a “Five
(5) Day Notice to Vacate Premises.” The notice stated,
PLEASE TAKE NOTICE that you have violated the following terms in
your lease agreement dated August 16, 2017: Section 4: USE OF PREMISES
Tenants have violated the lease agreement by occupying the premises with
six (6) individuals, rather than the two (2) individuals disclosed and named
on the lease agreement. Six (6) occupants is over the Landlord's
Condominium Owners’ Association Use and Occupancy Restrictions which
state “The Units are also restricted to occupancy by no more than one (1)
person per two hundred fifty (250) square feet of Unit floor space.”
That same evening the unit owners met and by a vote of three in favor and
one (Harlan) against, voted to change the occupancy restriction to read,
“The Units are also restricted to occupancy by no more than one (1) person
per FOUR HUNDRED (400) square feet of Unit floor space” (the “400
square foot rule”). The PCOA and its members have not voted to rescind the
400 square foot occupancy standard. The PCOA submitted the 400 square
foot occupancy restriction to an attorney for “review, advice, approval, and
implementation.” The amendment was never recorded on the public record.
Despite the notice to vacate, Harlan never evicted the Treeces, and on
August 31, 2017, Acuff emailed Harlan stating, “If this isn’t resolved in a
timely manner, we, as an association, can also levy penalties for failure to
observe the terms and conditions of the rules. Any expenses we incur as an
association can also be assessed against the defaulting owner.” On
September 8, 2017, Harlan informed the condominium association
members “I feel that I am being forced to evict by the other members of the
condo association.”
The other PCOA members then decided to pursue an eviction themselves.
Defendant Haile emailed the other PCOA members, “I believe we need to
move on with an eviction ASAP. If they sue us, they will sue us. But at least
they will be out . . . . I believe time for nice is over. It’s been over.” The PCOA
members held a special meeting on September 29, 2017. The owners voted,
over Harlan’s objection, to (1) impose a fine of $100 per day against Harlan
beginning Monday, October 2, 2017 for his continued lease of his unit to
Dwayne and Phallon and their family and violating the occupancy limit; (2)
pursue Dwayne and Phallon’s eviction; (3) assess legal fees associated with
such eviction against Harlan if the eviction were successful; (4) retain the
4
professional services of an attorney to represent the Association; and (5)
install a camera in the Perrier Condominium’s common stairwell.16
II.
Claims the Parties Agree Have Been Addressed on Summary Judgment
Dwayne and Phallon Treece sued Haile for “discriminat[ing] against Dwayne and
Phallon Treece by printing and publishing statements with respect to the sale or rental of
Units within the Perrier Street Condominiums that indicate a preference or limitation on
the basis of familial status, in violation of the Fair Housing Act, 42 U.S.C. § 3604(c).”17
The Court granted summary judgment in favor of Haile on this claim on December 2,
2019.18
All Plaintiffs sued all Defendants for “discriminat[ing] against Plaintiffs by
printing and publishing statements with respect to the sale or rental of Units within the
Perrier Street Condominiums that indicates an occupancy limitation or discrimination on
the basis of familial status in violation of the Fair Housing Act, 42 U.S.C. § 3604(c).”19 The
Court granted summary judgment in favor of Defendants on this claim on December 2,
2019.20
Harlan sued all Defendants for “discriminat[ing] against Harlan by . . . hav[ing]
printed or published their decision or statements with respect to the sale or rental of
Harlan’s Unit that indicates an occupancy limitation that discriminates on the basis of
familial status, all in violation of the Fair Housing Act, 42 U.S.C. § 3604 . . . (c).”21 The
R. Doc. 332 at 5-10 (internal citations omitted).
R. Doc. 16 at ¶ 73.
18 R. Doc. 174.
19 R. Doc. 16 at ¶ 76.
20 R. Doc. 174.
21 R. Doc. 16 at ¶ 79.
16
17
5
Court granted summary judgment in favor of Defendants on Harlan’s § 3604(c) claim on
December 2, 2019.22
All Plaintiffs sued all Defendants for “discriminat[ing] against Plaintiffs Harlan,
Dwayne, and Phallon by adopting occupancy limitations that have the . . . effect of making
unavailable or denying housing to families with children in violation of the Fair Housing
Act, 42 U.S.C. § 3604(a) and implementing regulations, 24 C.F.R. § 100.500.”23 The Court
granted summary judgment in favor of Defendants on Plaintiffs’ disparate impact claims
under § 3604(a) on February 12, 2021.24
III.
Claims the Parties Agree Are Set for Trial on December 6, 2021
Dwayne and Phallon Treece sued Haile for intentionally “discriminat[ing] against
Dwayne and Phallon Treece by refusing to rent her Unit to them or by otherwise making
unavailable or denying that Unit because of their familial status, in violation of the Fair
Housing Act, 42 U.S.C. § 3604(a).”25
Dwayne and Phallon Treece sued Haile for “discriminat[ing] against Dwayne and
Phallon Treece by representing to them that Haile’s Unit was not available for rental when
such dwelling was in fact so available because of their familial status in violation of the
Fair Housing Act, 42 U.S.C. § 3604(d).”26
IV.
The Plaintiffs Seek Modification of the February 12, 2021, Order and
Reasons to Clarify These Claims Are Pending.
All Plaintiffs sued all Defendants for “discriminat[ing] against Plaintiffs Harlan,
Dwayne, and Phallon by adopting occupancy limitations that have the intent and effect of
22 R. Doc. 174. Harlan does not dispute that the Court granted summary judgment in favor of Defendants
on his § 3406(c) claims.
23 R. Doc. 16 at ¶ 77.
24 R. Doc. 377.
25 R. Doc. 16 at ¶ 74.
26 Id. at ¶ 75.
6
making unavailable or denying housing to families with children in violation of the Fair
Housing Act, 42 U.S.C. § 3604(a) and implementing regulations, 24 C.F.R. § 100.500.”27
Defendants filed a motion for summary judgment on this claim.28 The Court granted
summary judgment in favor of Defendants on February 12, 2021, stating “Defendants are
entitled to summary judgment that Plaintiffs have no claim against them under 42 U.S.C.
§ 3604(a).”29 Plaintiffs argue, however, that the summary judgment should have dealt
only with claims for disparate impact under § 3604(a) and not intentional disparate
treatment.30
Harlan sued all Defendants for “discriminat[ing] against Harlan by refusing to
allow him to sell his Unit by discriminating against prospective buyers of Harlan’s
Unit . . . , all in violation of the Fair Housing Act, 42 U.S.C. § 3604(a) (b).”31 Plaintiffs
argue the February 12, 2021, Order and Reasons dealt only with claims for disparate
impact under § 3604(a) and not intentional disparate treatment under § 3604(a) or
discrimination under § 3604(b).32 Defendants argue the Court’s February 12, 2021, Order
and Reasons granted summary judgment in favor of Defendants on Harlan’s § 3604(a)
and (b) claims.33
All Plaintiffs sued all Defendants for “unlawfully coerc[ing], intimidat[ing],
threaten[ing], or interfere[ing] with Harlan, Dwayne, and Phallon in the exercise of, or an
[sic] account of their having exercised or enjoyed, their rights granted or protected by the
Fair Housing Act, 42 U.S.C. § 3604 on the basis of familial status, in violation of the Fair
Id. at ¶ 77.
R. Doc. 204.
29 R. Doc. 377 at 34.
30 R. Doc. 401; R. Doc. 414; R. Doc. 418.
31 R. Doc. 16 at ¶ 79.
32 R. Doc. 401; R. Doc. 414; R. Doc. 418.
33 R. Doc. 391-1; R. Doc. 415; R. Doc. 419.
27
28
7
Housing Act, 42 U.S.C. § 3617, and implementing regulations 24. C.F.R. § 100.400.”34 The
Court granted summary judgment in favor of Defendants on February 12, 2021, stating
“Defendants are entitled to summary judgment that Plaintiffs have no claim against
them . . . under § 3617 based on a violation of § 3604(a).”35 Plaintiffs argue, however, that
the Court erred in disposing of their § 3617 claims based on a violation of § 3604(a)
because there are pending claims under § 3604(a) and (b).36
LAW AND ANALYSIS
I.
The Court’s February 12, 2021, Order and Reasons Should be Modified
to Clarify Plaintiffs’ Remaining Claims.
Plaintiffs ask the Court to modify its February 12, 2021, Order and Reasons
granting summary judgment in favor of Defendants under Federal Rule of Civil Procedure
54(b) to reflect the following claims are still pending:
All Plaintiffs’ claims against all Defendants for intentional disparate
treatment under § 3604(a) by adopting occupancy limits that make
unavailable or deny housing to families with children;
Harlan’s claims against all Defendants under § 3604(a) and (b) for
discriminating against Harlan by refusing to allow him to sell his unit
through discriminating against prospective buyers of Harlan’s unit;
All Plaintiffs’ claims against all Defendants under § 3604(b) for
discrimination against them in the terms, conditions, or privileges of sale or
rental of a dwelling, or in the provision of services or facilities in connection
therewith, because of their familial status; and
All Plaintiffs’ claims against all Defendants under § 3617 for unlawfully
coercing, intimidating, threatening, or interfering with Plaintiffs in the
exercise of, or on account of their having exercised or enjoyed, their rights
granted under the Fair Housing Act.37
R. Doc. 16 at ¶ 78.
R. Doc. 377 at 34.
36 R. Doc. 401; R. Doc. 414; R. Doc. 418.
37 Id.
34
35
8
Rule 54(b) provides that “any order or other decision, however designated, that
adjudicates fewer than all of the claims or the rights and liabilities of fewer than all the
parties does not end the action as to any of the claims or parties and may be revised at any
time before the entry of a judgment adjudicating all the claims and all the parties’ rights
and liabilities.”38 The Court’s February 12, 2021, Order and Reasons granting Defendant’s
motion for summary judgment is an interlocutory judgment, as it did not adjudicate all
claims for all parties. The Court is therefore free to reconsider and reverse its decision for
any reason it deems sufficient.39 Accordingly, the Court’s February 12, 2021, Order and
Reasons40 may be reconsidered under Rule 54(b).
Under Rule 54(b), the Court “possesses the inherent procedural power to
reconsider, rescind, or modify an interlocutory order for cause seen by it to be
sufficient.”41 “However, this broad discretion must be exercised sparingly in order to
forestall the perpetual reexamination of orders and the resulting burdens and delays.”42
Generally, the approach in the Eastern District of Louisiana is to evaluate Rule 54(b)
motions to reconsider interlocutory orders under the same standards that govern Rule
59(e) motions to alter or amend a final judgment.43 A Rule 59(e) motion “calls into
question the correctness of a judgment.”44 In considering a motion for reconsideration, a
court must balance the interests of justice with the need for finality.45 The four factors
generally considered in deciding a motion under the Rule 59(e) standard are as follows:
(1) the motion is necessary to correct a manifest error of law or fact upon which
the judgment is based;
Fed. R. Civ. P. 54(b).
Acoustic Systems, Inc v. Wenger Corp., 207 F.3d 287, 290 (5th Cir. 2000).
40 R. Doc. 377.
41 Melancon v. Texaco, Inc., 659 F.2d 551, 553 (5th Cir. 1981).
42 Southern Snow Mfg. Co., Inc. v. SnoWizard Holdings, Inc., 921 F. Supp. 2d 548, 565 (E.D. La. 2013).
43 Id. at 565 & n.129 (collecting cases).
44 Tex. Comptroller of Pub. Accounts v. Transtexas Gas Corp., 303 F.3d 571, 581 (5th Cir. 2002).
45 Edward H. Bohlin Co., Inc. v. Banning Co., Inc., 6 F.3d 350, 355 (5th Cir. 1993).
38
39
9
(2) the movant presents newly discovered or previously unavailable evidence;
(3) the motion is necessary in order to prevent manifest injustice; or
(4) the motion is justified by an intervening change in controlling law.46
However, Rule 54(b) motions are not the proper vehicle for the reconsideration of
evidence, legal theories, or arguments.47 Reconsideration under Rule 54(b) instead
“serve[s] the narrow purpose of allowing a party to correct manifest errors of law or fact
or to present newly discovered evidence.”48 It is well settled that motions for
reconsideration should not be used to re-urge matters already advanced by a party.49
A.
The February 12, 2021, Order and Reasons Should be Modified to
Reflect that All Plaintiffs’ Claims Against All Defendants for
Disparate Treatment Under § 3604(a) Related to the Occupancy
Limit Are Pending.
Plaintiffs argue the Court erred in holding in its February 12, 2021, Order and
Reasons that “Defendants are entitled to summary judgment that Plaintiffs have no claim
against them under 42 U.S.C. § 3604(a)” 50 because the Order and Reasons discussed
only Plaintiffs’ claims for disparate impact discrimination, not their claims for disparate
treatment discrimination.51 Plaintiffs argue they asserted disparate treatment claims in
their complaint and have pursued them through discovery.52
Section 3604(a) provides that “it shall be unlawful . . . [t]o refuse to sell or rent
after the making of a bona fide offer, or to refuse to negotiate for the sale or rental of, or
otherwise make unavailable or deny, a dwelling to any person because of race, color,
Castrillo v. American Home Mortg. Servicing, Inc., No. 09-4369, 2010 WL 1424398, at *4 (E.D. La. April
5, 2010).
47 Simon v. United States, 891 F.2d 1154, 1159 (5t h Cir. 1990).
48 Waltman v. Int’l Paper Co., 875 F.2d 468, 473 (5th Cir. 1989) (internal quotations omitted).
49 Southern Snow Mfg. Co., Inc. v. SnoWizard Holdings, Inc., 921 F.Supp.2d 548, 565 (E.D. La. 2013).
50 R. Doc. 377 at 34.
51 R. Doc. 401-1 at 3-11; R. Doc. 418 at 3-6.
52 R. Doc. 401-1 at 3-11; R. Doc. 418 at 3-4.
46
10
religion, sex, familial status, or national origin.”53 Both disparate impact and disparate
treatment claims are cognizable under § 3604(a).54 Disparate impact claims are those
“asserting an unjustified, disproportionally adverse effect on [protected classes].”55
Disparate treatment claims are those “asserting ‘discriminatory intent or motive.’”56
In their First Amended Complaint, Plaintiffs allege:
By the actions set forth above, Haile, Acuff, Jablonsky, and the Association
have discriminated against Plaintiffs Harlan, Dwayne, and Phallon by
adopting occupancy limitations that have the intent and effect of making
unavailable or denying housing to families with children in violation of the
Fair Housing Act, 42 U.S.C. § 3604(a) and implementing regulations, 24
C.F.R. § 100.500.57
Plaintiffs clearly reference Defendants’ intent to discriminate against them. Plaintiffs
supported this claim in their complaint with factual allegations that Defendants intended
to discriminate against them, including:
The occupancy standards enacted by the Association have the intent and
effect of restricting families with children.
....
The two-hundred-fifty square feet occupancy standard adopted and
enforced by Defendants in effect in August 2017, when the Treece’s moved
into the property, . . . [a]s adopted and enforced by Defendants, . . . is
intended to and has the effect of denying housing for families with children.
As a result of the two-hundred-fifty square feet occupancy standard
originally adopted and enforced by Defendants, only five (5) people may
occupy the three-bedroom Unit without regard to the size of the Unit, the
configuration of the Unit, the size of the bedrooms, the number of the
bedrooms, or the ages of the children.
....
42 U.S.C. § 3604(a).
Inclusive Cmtys. Project, Inc. v. Lincoln Prop. Co., 920 F.3d 890, 901 (5th Cir. 2019) (citing Tex. Dep’t
of Hous. & Cmty. Affs. v. Inclusive Cmtys. Project, Inc., 576 U.S. 519 (2015)); see also Crain v. City of
Selma, No. SA–16–CV–408–XR, 2018 WL 548679, at *2 (W.D. Tex. Jan. 23, 2018) (quoting Pack v. Fort
Wash. II, 689 F. Supp. 2d 1237, 1243 (E.D. Cal. 2009)) (recognizing claims for disparate impact and
disparate treatment under § 3604(b)).
55 Id.
56 Id.
57 R. Doc. 16 at ¶ 77 (emphasis added).
53
54
11
The act of adopting and promulgating the four-hundred square feet
occupancy restriction on August 22 was done with the purpose of restricting
families with children from moving into the Condominium building.
Furthermore, the four-hundred square feet occupancy restriction actually
and predictably results in a disproportionate impact on families with
children. As adopted and enforced by Defendants, the standard is intended
to and has the effect of denying housing for families with children.58
Neither of the motions the Court considered in its February 12, 2021, summary
judgment Order and Reasons addressed Plaintiffs’ claims for intentional disparate
treatment.59 Nor did the February 12, 2021, Order and Reasons directly address disparate
treatment claims.60 In fact, in their opposition to Defendants’ motion for summary
judgment, Plaintiffs maintained they had a separate disparate treatment claim, arguing:
“Plaintiffs have pleaded a [sic] underlying violation of intentional discrimination under
§ 3604(a) in additional to their disparate impact claim with respect to enforcement of the
occupancy restriction. Defendants do not move to dismiss this claim on summary
judgment.”61
Accordingly, the Court finds it erred in ruling “Defendants are entitled to summary
judgment that Plaintiffs have no claim against them under 42 U.S.C. § 3604(a).”62
Plaintiffs have asserted claims against Defendants for disparate treatment discrimination
under § 3604(a) in adopting occupancy limits. To correct a manifest error of law and to
avoid manifest injustice, the Court must amend its February 12, 2021, Order and Reasons
to reflect that Defendants are entitled to summary judgment that Plaintiffs have no claim
against them for disparate impact discrimination under 42 U.S.C. § 3604(a).63
Id. at ¶¶ 57, 60-61, 63 (emphasis added).
R. Doc. 212; R. Doc. 204.
60 R. Doc. 377. None of the other dispositive orders in this case addressed Plaintiffs’ disparate treatment
claims either. R. Doc. 41; R. Doc. 174; R. Doc. 332.
61 R. Doc. 262 at 13.
62 R. Doc. 377.
63 The Court in no way determines whether Plaintiffs have adequately stated a claim for disparate treatment
discrimination under § 3604(a)—or for any of the other pending claims the Court recognizes in this Order—
58
59
12
Defendants argue only that Plaintiffs’ disparate treatment claims have no merit;64
however, that argument is irrelevant to Plaintiffs’ current motion, which only seeks to
clarify the Court has not ruled on the merits of Plaintiffs’ § 3604(a) disparate treatment
claims. The Court has not ruled on the merits of those claims, and the appropriate motion
has not been filed for the Court to do so.65
B.
The February 12, 2021, Order and Reasons Should be Modified to
Reflect that Harlan’s Claims Against All Defendants for
Disparate Treatment Under § 3604(a) and Discrimination Under
§ 3604(b) Related to the Discrimination Against His Prospective
Buyers Are Pending.
Harlan argues the Court erred in holding in its February 12, 2021, Order and
Reasons that “Defendants are entitled to summary judgment that Plaintiffs[, including
Harlan,] have no claim against them under 42 U.S.C. § 3604(a)” 66 because the Order
discussed only Plaintiffs’ claims for disparate impact discrimination, not their claims for
disparate treatment discrimination.67 Harlan argues he included his disparate treatment
claims in the complaint and has pursued them through discovery.68
In the First Amended Complaint, Harlan alleges:
By the actions set forth above, Defendants have discriminated against
Harlan by refusing to allow him to sell his Unit by discriminating against
prospective buyers of Harlan’s Unit and have printed or published their
decision or statements with respect to the sale or rental of Harlan’s Unit that
indicates an occupancy limitation that discriminates on the basis of familial
status, all in violation of the Fair Housing Act, 42 U.S.C. § 3406(a) (b) (c).69
sufficient to survive a motion to dismiss or motion for summary judgment. The Court finds only that the
Plaintiffs brought these claims in their complaint, and they have not yet been addressed on the merits.
64 R. Doc. 415 at 2-11.
65 In their reply, Defendants ask the Court to dismiss Plaintiffs’ claims if the Court finds they have not been
disposed of already. R. Doc. 419 at 9. The Scheduling Order in this case provides the deadline to file and
serve non-evidentiary pretrial motions is January 7, 2020. R. Doc. 381. Defendants made this request on
October 13, 2021. Even if the court construed Defendants’ motion as a motion to dismiss or for summary
judgment, such a motion would be untimely under the Scheduling Order. The Court will not address the
merits of any of Plaintiffs’ claims in this Order.
66 R. Doc. 377 at 34.
67 R. Doc. 401-1 at 3-11; R. Doc. 418 at 3-6.
68 R. Doc. 401-1 at 3-11; R. Doc. 418 at 3-4.
69 R. Doc. 16 at ¶ 79.
13
Harlan has clearly stated a claim under § 3406(a), and the allegation that they “refused
to allow him” implies intentional conduct. Harlan supported this claim with factual
allegations, stated in section I.A above, that Defendants intended to discriminate against
him and those with families.70
As explained above, the February 12, 2021, Order and Reasons did not address
Plaintiffs’, including Harlan’s, claims for disparate treatment under § 3406(a).
Accordingly, the Court finds it erred in ruling “Defendants are entitled to summary
judgment that Plaintiffs have no claim against them under 42 U.S.C. § 3604(a).”71 Harlan
has asserted claims against Defendants for disparate treatment under § 3604(a) in
discriminating against his prospective buyers. To correct a manifest error of law and to
avoid manifest injustice, the Court must amend its February 12, 2021, Order and Reasons
to reflect that Defendants are entitled to summary judgment that Harlan has no claim
against them for disparate impact discrimination under 42 U.S.C. § 3604(a).
Harlan alleges claims against Defendants under § 3604(b). Defendants argue the
Court granted summary judgment in favor of Defendants on these claims in its February
12, 2021, Order and Reasons.72 However, that order does not mention § 3604(b).73 It
addresses claims only under § 3604(a) and § 3617.74 In fact, in their opposition to
Defendants’ motion for summary judgment, Plaintiffs maintained Harlan’s § 3604(b)
claim was pending and was not challenged in that motion, arguing “Plaintiff Harlan has
a surviving claim that Defendants discriminated against him by imposing discriminatory
terms and conditions—onerous daily fines—because he continued to rent his unit to
Id. at ¶¶ 57, 60-61, 63.
R. Doc. 377.
72 R. Doc. 391-1 at 3-4
73 R. Doc. 377.
74 See id.
70
71
14
family [sic] with children in violation of Sec. 3604(b).”75 None of the other dispositive
orders in this case address Harlan’s § 3604(b) claims.76 Accordingly, Harlan’s claims
under § 3604(b) for discriminating against his prospective buyers are still pending, and
no modification of the February 12, 2021, Order and Reasons is needed.
C.
The February 12, 2021, Order and Reasons Will Not Be Modified
to Reflect that the Plaintiffs Have Claims Against All Defendants
Under § 3604(b) for Harassing and Attempting to Evict the
Treeces After They Moved in.
In their reply, Plaintiffs for the first time request the Court recognize that, although
they only directly stated a claim under § 3604(a), the allegations in their complaint
encompass claims under § 3604(b) as well, apart from Harlan’s individual § 3604(b)
claim.77
District courts may not generally “review arguments raised for the first time in [a]
reply brief.”78 In their original motion to modify partial summary judgment, Plaintiffs ask
the Court only “(1) to reflect Plaintiffs had alleged a claim of intentional discrimination
under 42 U.S.C. § 3604(a) that the Court has not dismissed and (2) to reinstate Plaintiffs’
claim under 42 U.S.C. § 3617 because an underlying substantive violation of the Fair
Housing Act (the intentional violation of § 3604(a)) remains.”79 They do not mention or
request relief with respect to § 3604(b).
R. Doc. 262 at 13.
R. Doc. 41; R. Doc. 174; R. Doc. 332.
77 R. Doc. 418 at 7-8.
78 RedHawk Holdings Corp. v. Schreiber, 836 F. App’x 232, 235 (5th Cir. 2020) (alteration in original)
(quoting Peteet v. Dow Chem. Co., 868 F.2d 1428, 1437 (5th Cir. 1989)). “On occasion, however, a district
court may consider arguments and evidence raised for the first time in a reply brief without abusing its
discretion ‘so long as it gives “the non-movant an adequate opportunity to respond prior to a ruling.”’” Id.
(quoting Thompson v. Dall. City Att’y's Off., 913 F.3d 464, 471 (5th Cir. 2019)). The Court did not provide
Defendants an opportunity to respond to Plaintiffs’ new § 3604(b) arguments in this case.
79 R. Doc. 401-1 at 1.
75
76
15
Moreover, in the first amended complaint, the only reference to § 3604(b) is
Harlan’s claim, discussed above.80 In the Plaintiffs’ opposition to Defendants’ motion for
summary judgment on Plaintiffs’ § 3617 claims, they reiterated what claims remained, in
the event the Court ruled against them on their claims for § 3604(a) disparate impact
discrimination.81 Plaintiffs noted only the “underlying violation of intentional
discrimination under § 3604(a)” and “Harlan[’s] . . . surviving claim that Defendants
discriminated against him . . . in violation of Sec. 3604(b).”82
For these reasons, the Court will not modify the February 12, 2021, Order and
Reasons to reflect that Plaintiffs’ allegations encompass additional claims under
§ 3604(b), apart from Harlan’s individual § 3604(b) claim.
D.
The February 12, 2021, Order and Reasons Should be Modified to
Reflect the Plaintiffs’ § 3617 Claims Are Pending Because
Plaintiffs Have Claims Pending Under § 3604(a) and (b).
Plaintiffs argue the Court erred in holding in its February 12, 2021, Order and
Reasons that “Defendants are entitled to summary judgment that Plaintiffs have no claim
against them . . . under § 3617 based on a violation of § 3604(a)” 83 because Plaintiffs have
pending underlying claims for intentional discrimination under § 3604(a) and (b).84
Section 3617 provides:
It shall be unlawful to coerce, 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 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.85
R. Doc. 16 at ¶ 79.
R. Doc. 262 at 13.
82 Id.
83 R. Doc. 377 at 34.
84 R. Doc. 401-1 at 1-2, 11; R. Doc. 418 at 8-10.
85 42 U.S.C. § 3617.
80
81
16
Addressing Plaintiffs’ § 3617 claims in the February 12, 2021, Order and Reasons, the
Court stated “the Fifth Circuit has held § 3617 claims do require an underlying violation
of §§ 3603, 3604, 3605, or 3606,” and because “Plaintiffs in this case have not asserted a
claim under § 3604(a),” they “cannot assert a claim that Defendants unlawfully coerced,
intimated, threatened, or interfered with Plaintiffs in the exercise of, or on account of
their having exercised or enjoyed, their rights granted or protected by § 3604(a).”86
However, as explained above, Plaintiffs have asserted claims for intentional
discrimination under § 3604(a) and (b) that are pending. In fact, as explained above, the
Plaintiffs pointed to these claims in their opposition to Defendants’ motion for summary
judgment on their § 3617 claims.87 Accordingly, the Court erred in holding “Defendants
are entitled to summary judgment that Plaintiffs have no claim against them . . . under §
3617.”88 To correct a manifest error of law and to avoid manifest injustice, the Court must
amend its February 12, 2021, Order and Reasons to reflect that Defendants are not
entitled to summary judgment on Defendants’ claims under 42 U.S.C. § 3617.
II.
Defendants Are Not Entitled to a Final Judgment on Those of Plaintiffs’
Claims Which the Court Has Addressed on the Merits.
Defendants ask the Court to issue a partial final judgment under Rule 54(b) on
those of Plaintiffs’ claims which the Court has addressed on the merits.89 Defendants
argue the Court has disposed of all of Plaintiffs’ claims except for the claims by the Treeces
against Haile under § 3604(a) and (d).90 However, as explained above, there are other
claims pending, as well. The only claims the Court has adjudicated are Plaintiffs’ claims
R. Doc. 377 at 32, 34; see also Treece v. Perrier Condo. Ass’n, Inc., 519 F. Supp. 3d 342, 364-65 (E.D. La
2021).
87 R. Doc. 262 at 13.
88 R. Doc. 377 at 34.
89 R. Doc. 391.
90 Id. at 3-5, 6-7; R. Doc. 419 at 1-3.
86
17
for publication of discriminatory statements under § 3604(c) and Plaintiffs’ claims for
disparate impact discrimination under § 3604(a). Accordingly, the Court limits
Defendants’ motion to requesting a partial judgment on these claims.
Defendants’ argument that final judgment is necessary was primarily based on
their contention that the only remaining claims in this case were the claims by the Treeces
against Haile under § 3604(a) and (d), which would not involve the other Defendants or
Harlan.91 This argument is irrelevant as there are claims pending against all Defendants,
as explained above. Defendants also argue the lack of finality in this case will cause
continued expense, emotional strain, and stigma to Defendants, especially since there is
a risk the trial will be delayed due to COVID-19 concerns.92 In particular, they state Acuff
has taken out interest-bearing loans to fund her defense and will be prejudiced by
continued delay.93
Plaintiffs argue litigation expenses, time, and stress are not the sort of hardships
Rule 54(b) is intended to avoid, as they are present in every case, and an appeal would
involve just as much time and money.94 Plaintiffs also argue any delay will be modest
because trial is soon approaching.95 Plaintiffs argue the fact that it is Plaintiffs, not
Defendants, who will be the ones to appeal also weighs against entering a partial final
judgment as Defendants would be forcing Plaintiffs to seek or not seek appellate relief at
this time.96 Finally, Plaintiffs argue all Defendants have claims pending against them, and
it would be improper to issue a partial final judgment with respect to some of the claims
R. Doc. 391 at 3-5, 6-7; R. Doc. 419 at 1-3.
R. Doc. 391 at 7-10; R. Doc. 419 at 4-8.
93 R. Doc. 391 at 9.
94 R. Doc. 414 at 2-4.
95 Id. at 4-5.
96 Id. at 5.
91
92
18
against them.97 The Plaintiffs argue the pending claims and the dismissed claims are
related and would confuse the appeals process if they are appealed piecemeal.98
Rule 54(b) states:
When an action presents more than one claim for relief—whether as a claim,
counterclaim, crossclaim, or third-party claim—or when multiple parties
are involved, the court may direct entry of a final judgment as to one or
more, but fewer than all, claims or parties only if the court expressly
determines that there is no just reason for delay.99
When ruling on a Rule 54(b) motion, the Court “must first determine that it is
dealing with a final judgment,” meaning the order is the ultimate disposition upon a
cognizable claim for relief.100 Then, the Court must determine whether there is any just
reason for delay, weighing “the inconvenience and costs of piecemeal review on the one
hand and the danger of denying justice by delay on the other.”101 When engaging in this
balancing, the Court should consider whether the claims in the case are “separable from
the others remaining to be adjudicated and whether the nature of the claims already
determined was such that no appellate court would have to decide the same issues more
than once even if there were subsequent appeals.”102 “Rule 54(b) judgments are not
favored and should be awarded only when necessary to avoid injustice.”103
While the Court has disposed of Plaintiffs’ claims for publication of discriminatory
statements under § 3604(c) and Plaintiffs’ claims for disparate impact discrimination
under § 3604(a), the Court finds there is just reason for delay in entering final judgment.
Id. at 6-7.
Id. at 7-9.
99 Fed. R. Civ. P. 54(b).
100 Williams v. Traylor-Massman-Weeks, LLC, No. 10-2309, 2011 WL 4959365, *1 (E.D. La. Oct. 18, 2011)
(quoting Curtiss–Wright Corp. v. General Electric Co., 446 U.S. 1, 7 (1980)) (internal quotations omitted).
101 Rd. Sprinkler Fitters Local Union v. Cont’l Sprinkler Co., 967 F.2d 145, 148 (5th Cir. 1992) (quoting
Dickinson v. Petroleum Conversion Corp., 338 U.S. 507, 511 (1950)).
102 Curtiss-Wright Corp., 466 U.S. at 8.
103 Menard v. LLOG Expl. Co., No. 16-489, 2017 WL 1426968, at *1 (E.D. La. Apr. 21, 2017) (citing PYCA
Indus., Inc. v. Harrison Cnty. Waste Water Mgmt. Dist., 81 F. 3d 1412, 1421 (5th Cir. 1996)).
97
98
19
The only hardships Defendants point to are continued expense and emotional strain
throughout the duration of this case. These types of hardships are “present in every case
. . . and do[] not indicate that this is the sort of ‘infrequent hard [sic] case’ that Rule 54(b)
was designed to address.”104 Indeed, there is little risk of denying Defendants justice as
“[t]his is not the usual case of the losing party requesting the entry of final judgment under
Rule 54(b), but rather the prevailing party seeking to force the losing party to seek (or not
seek) appellate relief.”105 On the other hand, the inconvenience of piecemeal review looms
large. The majority of Plaintiffs’ claims still are pending in this Court, while only two types
of claims, § 3604(c) and disparate impact discrimination under § 3604(a), have been fully
adjudicated. These adjudicated claims have substantially overlapping facts with the
pending claims, and the claims currently pending are against all Defendants. This is not
a case in which the Court has completely dismissed all claims against one Defendant. If
the Court entered final judgment on the adjudicated claims, parallel appeals, each
involving all parties, would likely ensue on similar issues, which is the exact duplicative
and piecemeal review Rule 54(b) seeks to avoid.106 For these reasons, the Court will not
enter partial final judgment for the § 3604(c) claims and § 3604(a) disparate impact
claims against Defendants.
CONCLUSION
IT IS ORDERED that Plaintiffs Dwayne Treece, Phallon Treece, and Clifford
Harlan’s motion to revise or modify partial summary judgment107 is GRANTED. The
Cf. id. at *2 (quoting Jasmin v. Dumas, 726 F.2d 242, 244 (5th Cir. 1984)) (citing Tow v. Bulmahn, No.
15-3141, 2016 WL 3554720, at *2 (E.D. La. June 30, 2016)).
105 See Onyx Props. LLC v. Bd. of Cnty. Comm’rs of Elbert Cnty., 916 F. Supp. 2d 1191, 1211 (D. Colo. 2012);
see also Fucich Contracting, Inc. v. Shread-Kuyrkendall & Assocs., Inc., No. 18-2885, 2020 WL 2924051,
at *1-2 (E.D. La. June 3, 2020).
106 See PYCA Indus., 81 F. 3d at 1421.
107 R. Doc. 401.
104
20
February 12, 2021, Order and Reasons granting summary judgment in favor of
Defendants108 is modified as follows:
IT IS HEREBY ORDERED that Plaintiffs’ Motion for Partial Summary
Judgment109 is DENIED. Defendants’ Motion for Partial Summary
Judgment110 is GRANTED IN PART. Defendants are entitled to summary
judgment that Plaintiffs have no claim against them for disparate impact
discrimination under 42 U.S.C. § 3604(a).111
IT IS FURTHER ORDERED that Defendants Perrier Condominium Owners
Association Inc., Katherine E. Acuff, Christopher J. Jablonowski, and Hanna M Haile’s
motion to enter final judgment112 is DENIED.
To avoid the possibility of prejudice due to the short period of time between this
clarification of which claims remain and the upcoming December 6, 2021 trial, the only
claims to be tried will be:
Dwayne and Phallon Treece’s claims against Haile under 42 U.S.C.
§ 3604(a) for intentionally “discriminat[ing] against Dwayne and Phallon
Treece by refusing to rent her Unit to them or by otherwise making
unavailable or denying that Unit because of their familial status.”113
Dwayne and Phallon Treece’s claims against Haile under 42 U.S.C.
§ 3604(d) for “discriminat[ing] against Dwayne and Phallon Treece by
representing to them that Haile’s Unit was not available for rental when
such dwelling was in fact so available because of their familial status.”114
The remaining claims, which are not set for trial on December 6, 2021, are:
All Plaintiffs’ claims against all Defendants for intentional disparate
treatment discrimination under 42 U.S.C. § 3604(a) and implementing
regulations, 24 C.F.R. § 100.500, for “adopting occupancy limitations that
have the intent . . . of making unavailable or denying housing to families
with children.”115
R. Doc. 377.
R. Doc. 212
110 R. Doc. 204.
111 Defendants are not entitled to summary judgment on Plaintiffs’ § 3617 claims as Plaintiffs have remaining
claims pending under § 3604(a) and (b).
112 R. Doc. 391.
113 R. Doc. 16 at ¶ 74.
114 Id. ¶ 75; see Fed. R. Civ. Pro. 42(b).
115 Id. ¶ 77.
108
109
21
Harlan’s claims against all Defendants under 42 U.S.C. § 3604(a) and (b)
for “discriminat[ing] against Harlan by refusing to allow him to sell his Unit
by discriminating against prospective buyers of Harlan’s Unit.”116
All Plaintiffs’ claims against all Defendants under 42 U.S.C. § 3617 and
implementing regulations, 24. C.F.R. § 100.400, for “unlawfully coerc[ing],
intimidat[ing], threaten[ing], or interfere[ing] with Harlan, Dwayne, and
Phallon in the exercise of, or an [sic] account of their having exercised or
enjoyed, their rights granted or protected by the Fair Housing Act, 42 U.S.C.
§ 3604 on the basis of familial status.”117
New Orleans, Louisiana, this 28th day of October, 2021.
_______ ________________________
SUSIE MORGAN
UNITED STATES DISTRICT JUDGE
Id. ¶ 79.
Id. ¶ 78. Plaintiffs’ § 3617 claims are limited to the underlying alleged violations of § 3604(a) for disparate
treatment discrimination and the alleged violation of § 3604(b) for Harlan’s claim related to the inability to
sell his unit. See Treece, 519 F. Supp. 3d at 364-65.
116
117
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