Wallace et al v. Greystone at the Highlands Association et al
OPINION re Parker's motion to dismiss 16 and Greystone's motion to dismiss 19 ; signed by District Judge Hala Y. Jarbou (aks)
Case 1:19-cv-01045-HYJ-SJB ECF No. 33, PageID.688 Filed 11/16/20 Page 1 of 13
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
WILLIAM B. WALLACE, et al.,
Case No. 1:19-cv-1045
Honorable Hala Y. Jarbou
GREYSTONE AT THE HIGHLANDS
ASSOCIATION, et al.,
Before the Court are two motions to dismiss brought by the two sets of Defendants in this
case. The case centers on whether Plaintiffs William and Sandra Wallace are entitled to the
exclusive use of a strip of pavement that lies between the respective driveways of Plaintiffs and
their neighbors (“Disputed Area”). To establish that right, Plaintiffs have sued their neighbors,
Defendants Mary and David Parker, as well as the condominium association and its affiliated
leadership: Defendants Greystone at the Highlands Association, Charles Keys, Anthony Ryner,
and Paul Kaplan (collectively, the “Greystone Defendants”). The Wallaces brought thirteen
claims, twelve state and one federal. (First Am. Compl., ECF No. 14.) Their federal claim is
based on alleged violations of the Fair Housing Amendments Act (FHAA), 42 U.S.C. § 3601 et
seq. The Parkers moved to dismiss for lack of subject matter jurisdiction and failure to state a
claim. (ECF No. 16.) The Greystone Defendants moved to dismiss the case for lack of subject
matter jurisdiction. (ECF No. 19.) The Court will grant the Parkers’ motion to dismiss and grant
the Greystone Defendants’ motion in part.
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Plaintiff William Wallace owns a condo unit in the Greystone at the Highlands community.
(First. Am. Compl. ¶ 4.) He and his wife Sandra reside in the condo part-time. (Id. ¶ 5.) The
Parkers own the condo across from the Wallaces. (Id. ¶ 8.) Keys, Ryner, and Kaplan are the
President, Treasurer, and Secretary of the Greystone Association, respectively. (Id. ¶¶ 9-11.)
Sandra Wallace experiences “vascular dementia and partial paralysis/impaired
motility/loss of balance as a result of one or more strokes.” (Id. ¶ 12.) As a result, she is unable
“to ambulate without assistance” and is frequently transported by wheelchair to the Wallaces’ cars
whenever they enter or leave their condo. (William Wallace Decl. ¶¶ 6, 9-10, ECF No. 22-1.)
Plaintiffs allege that Sandra can only safely embark and disembark vehicles in the Disputed Area,
as it is flat, while Plaintiffs’ driveway is at an incline. (Id. ¶ 9.) According to William Wallace, if
he cannot regularly park in the Disputed Area, then “Sandra will effectively become homebound.”
(Id. ¶ 11.) The Wallaces allege that the Disputed Area is a “limited common element” which they
have the exclusive right to use. (First Am. Compl. ¶ 1.)
Plaintiffs therefore claim that the Parkers are forbidden to park in the Disputed Area, as
they have done from time to time. (See id. ¶ 33.) On their part, the Parkers have denied that the
Wallaces enjoy a limited common element in the Disputed Area. (Id.) This disagreement allegedly
came to a head in July 2018, when Mary Parker “in a fit of rage . . . verbally and physically
assaulted Sandra Wallace” in the Wallace driveway while William and his son “were holding up
a clearly disabled Mrs. Wallace.” (William Wallace Decl. ¶¶ 1-2.) David Parker apparently
observed the altercation from the Parkers’ house and was also able to see that Sandra could not
stand on her own. (Id. ¶ 3.) Though not expressed in their complaint, the Wallaces further contend
that “it may be inferred . . . that the Parkers have indirectly engaged in . . . [misconduct] by
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pressuring the [Greystone] Association . . . to deny the Wallaces’ requests” for accommodations.
(Pls.’ Br. in Opp’n to Parkers’ Mot. to Dismiss, ECF No. 22, PageID.543.)
That request for an accommodation refers to the Wallaces’ petition to the Greystone
Association to have the Disputed Area labeled as a limited common element subject to the
Wallaces’ exclusive use. (See First Am. Compl. ¶¶ 33-36, 40.) Plaintiffs allege that this
constituted a request for a “reasonable modification and/or accommodation” given Sandra’s
disability. (Id. ¶ 40.) The Greystone Defendants refused to label the Disputed Area as a limited
common element. (Id.) The Wallaces subsequently sued both the Parkers and the Greystone
A. Failure to State a Claim
When considering a motion to dismiss brought under Rule 12(b)(6), courts must ask
whether the plaintiff has alleged “facts that, if accepted as true, are sufficient to raise a right to
relief above the speculative level,’ and . . . ‘state a claim to relief that is plausible on its face.’”
Hensley Mfg. v. ProPride, Inc., 579 F.3d 603, 609 (6th Cir. 2009) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007)). “A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw a reasonable inference that the defendant is liable for
the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Plausible does not mean
probable, but the standard “asks for more than a sheer possibility that a defendant has acted
unlawfully . . . . Where a plaintiff 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. (quoting Twombly, 550 U.S. at 557). On a motion to dismiss, courts must accept factual
allegations as true, but will reject conclusory statements as “not entitled to the assumption of truth.”
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Id. (citing Twombly, 550 U.S. at 555-56). Hence, courts will ignore conclusory assertions and,
accepting well-pleaded factual allegations as true, determine whether the allegations “plausibly
give rise to an entitlement to relief.” Id. Determining the plausibility of a claim is a “contextspecific” inquiry, “requiring the reviewing court to draw on its experience and common sense.”
Id. If the court decides that there is no plausible claim to relief, then the motion to dismiss will be
B. Lack of Subject Matter Jurisdiction
The standard for evaluating a Rule 12(b)(1) motion depends on the nature of the “attack”
on subject matter jurisdiction. A “facial attack” on subject matter jurisdiction “merely questions
the sufficiency of the [complaint].” Ohio Nat’l Life Ins. Co. v. U.S., 922 F.2d 320, 325 (6th Cir.
1990). Facial attacks are reviewed under the same standard as is applied to a Rule 12(b)(6) motion:
the court accepts the plaintiff’s well-pleaded allegations as true and asks whether subject matter
jurisdiction exists based on the complaint. Id. No presumption of truth applies in a “factual attack”
on subject matter jurisdiction. Id. Factual attacks challenge the actual existence of matters
affecting jurisdiction. RMI Titanium Co. v. Westinghouse Elec. Corp., 78 F.3d 1125, 1134 (6th
Cir. 1996). To resolve a factual attack, “‘the trial court is free to weigh the evidence and satisfy
itself as to the existence of its power to hear the case. . . . [T]he existence of disputed material facts
will not preclude the trial court from evaluating for itself the merits of jurisdictional claims.’” Id.
(quoting Mortensen v. First Fed. Savings & Loans Ass’n, 549 F.2d 884, 890-91 (3d Cir. 1977)).
The plaintiff bears the burden of proof of jurisdiction when a factual attack is made. Id.
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A. Parkers’ Motion to Dismiss
Plaintiffs allege the Parkers violated sections 3604(f)(2) and 3617 of the FHAA. Their
section 3604(f)(2) claim is based on disparate treatment and disparate impact. The Wallaces’
allegations, if true, do not give rise to a violation of the FHAA. They have failed to state a claim.
1. Section 3604(f)(2) disparate treatment claim
The FHAA prohibits “discrimin[ation] against any person in the terms, conditions, or
privileges of a dwelling, or in the provision of services or facilities in connection with such
dwelling, because of a handicap.” 42 U.S.C. § 3604(f)(2). “Plaintiffs who allege a violation of 42
U.S.C. § 3604(f) may proceed under any or all of three theories: disparate treatment, disparate
impact, and failure to make reasonable accommodations.” Smith & Lee Assocs. v. City of Taylor,
Mich., 102 F.3d 781, 790 (6th Cir. 1996). A successful disparate treatment claim requires the
plaintiff to “show proof of intentional discrimination.” HDC, LLC v. City of Ann Arbor, 675 F.3d
608, 612 (6th Cir. 2012). Thus, “analysis of such a claim focuses on the defendant’s intent.” Hollis
v. Chestnut Bend Homeowners Ass’n, 760 F.3d 531, 539 (6th Cir. 2014).
Plaintiffs’ allegations regarding the July 2018 altercation with Mary Parker are insufficient
to make out a claim of disparate treatment. The confrontation concerned the Wallaces’ use of the
Disputed Area. (First Am. Compl. ¶ 43.) Plaintiffs do not allege any connection between the
parking dispute and Sandra’s disability. All the Wallaces have alleged is that Mary and David saw
that Sandra could not stand on her own when Mary allegedly assaulted her. (William Wallace
Decl. ¶¶ 1-2.) This does not show that the altercation was about discriminatory animus rather than
a disagreement over parking rights. Far more egregious conduct must be alleged to demonstrate
discriminatory intent. See, e.g., Francis v. Kings Park Manor, Inc., 917 F.3d 109, 114-15 (animus
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where defendant made multiple violent threats on multiple occasions while using slew of racist
and anti-Semitic epithets); Halprin v. Prairie Single Family Homes of Dearborn Park Ass’n, 388
F.3d 327, 330 (7th Cir. 2004) (animus where vandalism included writing referencing plaintiff’s
Jewish faith on plaintiff’s wall).
2. Section 3604(f)(2) disparate impact claim
As an initial matter, the Court is unable to locate a single case supporting Plaintiffs’ implied
proposition that the Parkers – their neighbors – are appropriate targets of a disparate impact claim.
The Court does not understand the basis for Plaintiffs’ apparent belief that the Parkers could be
liable for such a claim. If disparate impact actions cannot be brought against neighbors, then the
Wallaces’ claim must be dismissed. Assuming the Parkers could be sued by their neighbors for
disparate impact, the claim would still be dismissed because Plaintiffs have failed to make
allegations speaking to each element of a disparate impact action. Since this claim is subject to
dismissal either way, the Court will assume without deciding that the Parkers may be held liable
for disparate impact.
A disparate impact claim turns on “the broader effects of the disputed housing practice”
rather than the defendant’s subjective intent. Hollis, 760 F.3d at 539. Crucially, “to show a
disparate impact, a plaintiff must demonstrate that a facially neutral policy or practice has the effect
of discriminating against a protected class of which the plaintiff is a member.” Graoch Assocs.
#33, L.P. v. Louisville/Jefferson Cnty. Metro Hum. Relations Comm’n, 508 F.3d 366, 371 (6th Cir.
Plaintiffs’ complaint is devoid of allegations that anyone other than Sandra is affected by
the Parkers’ challenged conduct. Only two allegations conceivably deal with disparate impact,
and they both claim that the Parkers’ actions had “a disproportionately adverse effect on [Sandra’s]
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ability to use and fully enjoy the premises.” (First Am. Compl. ¶¶ 41, 47.) No allegations relate
the Parkers’ activity to broader effects on disabled people as a class compared to non-disabled
people. The complaint solely deals with the Parkers’ impact on the Wallaces. They have failed to
allege a disparate impact claim.
3. Section 3617 claim
Section 3617 of the FHAA makes it “unlawful to coerce, intimidate, threaten, or interfere
with any person in the exercise or enjoyment of” any right protected by the FHAA. As with
disparate treatment claims, a successful section 3617 claim requires proof of discriminatory intent.
HDC, 675 F.3d at 613-14.
Plaintiffs’ section 3617 claim fails for the same reason their disparate treatment claim fails:
they have not provided any allegations sufficient to infer that the Parkers acted with discriminatory
intent. It is not enough that the Parkers allegedly misbehaved or sought to use the Disputed Area
for their own benefit; the Wallaces must show that they did so because of Sandra’s disability.
Cambell v. Robb, 162 F. App’x 460, 473 (6th Cir. 2006) (citing United States v. City of
Birmingham, 727 F.2d 560, 565-66 (6th Cir. 1984)). Verbal confrontations and pressuring the
Greystone Association to side against the Wallaces fall far short of this requirement. Plaintiffs’
claims against the Parkers must be dismissed.
B. Greystone Defendants’ Motion to Dismiss
Plaintiffs also bring a section 3604 claim against the Greystone Defendants. The basis of
their claim is that the Greystone Defendants knew that Sandra was disabled but nevertheless denied
the Wallaces’ request for a reasonable accommodation that was necessary to “afford Mrs. Wallace
the full enjoyment” of their condo. (First Am. Compl. ¶ 45.)
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Under section 3604(f)(2), it is unlawful to “refuse to make reasonable accommodations
in rules, policies, practices, or services, when such accommodations may be necessary to afford
[someone an] equal opportunity to use and enjoy a dwelling.” 42 U.S.C. § 3604(f)(2). “The ‘three
operative elements’ of the FHAA’s reasonable accommodation requirement are ‘equal
opportunity,’ ‘necessary,’ and ‘reasonable.’” Anderson v. City of Blue Ash 798 F.3d 338, 360 (6th
Cir. 2015) (quoting Smith & Lee Assocs., 102 F.3d at 794).
The equal opportunity and necessity elements are “closely related.” Id. A plaintiff “must
show that, but for the accommodation, they likely will be denied an equal opportunity to enjoy the
housing of their choice.” Smith & Lee Assocs., 102 F.3d at 795. An accommodation is necessary
where it would enable a plaintiff to receive “the same enjoyment from the property as a nondisabled person would receive.” Hollis, 760 F.3d at 541. And equal enjoyment is “achieved when
an accommodation ameliorates the effects of the disability such that the disabled individual can
use and enjoy his or her resident as a non-disabled person could.” Anderson, 798 F.3d at 361 (citing
Hollis, 760 F.3d at 541).
The availability of alternative measures does not invalidate the
accommodation sought by a plaintiff so long as the requested accommodation is necessary and
would provide equal enjoyment. Id.
Here, Plaintiffs claim that they need exclusive use of the Disputed Area because, without
such an accommodation, “Sandra will effectively become homebound.” (William Wallace Decl.
¶ 11.) Hence, they argue that use of the Disputed Area is necessary to afford Sandra equal
enjoyment of her home as would be enjoyed by a non-disabled person needing less space to get
into and out of vehicles at their house. (Id. ¶¶ 9-11.) This allegation is significantly undercut by
video and photographic evidence. (April 8, 2020 Photos, ECF No. 25-3; March 27, 2020 Video,
ECF No. 25-4.) The exhibits show Sandra embarking and disembarking from vehicles parked
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entirely within the Wallaces’ driveway, and thus outside the Disputed Area, on two separate
occasions. Notably, both exhibits also show that no cars are parked in the Disputed Area while
William was helping Sandra into and out of their vehicle. In other words, on at least two occasions,
the Wallaces could have used the Disputed Area when Sandra was embarking or disembarking a
car, but they chose not to.
This evidence, which stands in stark contrast to William’s sworn affidavit (ECF No. 22-1),
calls into question the merits of Plaintiffs’ FHAA claim. It does not, however, undermine the
subject matter jurisdiction of this Court to hear an alleged FHAA claim.
Defendants seek to have the claim dismissed for lack of subject matter jurisdiction, and not for
failure to state a claim. They bring a factual attack on the Wallaces’ complaint; that is, rather than
questioning the sufficiency of Plaintiffs’ allegations, the Greystone Defendants argue that certain
factual predicates to this Court’s jurisdiction do not exist. Many cases illustrate the use of factual
attacks in 12(b)(1) motions. See, e.g., RMI Titanium Co., 78 F.3d at 1135 (proper factual attack
to show plaintiff’s claims contractual in nature and thus preempted by statute); Ohio Nat’l Life Ins.
Co., 922 F.2d at 326 (factual attack to determine whether statute of limitations barred suit).
However, the Greystone Defendants’ reliance on such cases is misplaced.
Unlike the cases to which they cite, here the Greystone Defendants are really challenging
the merits of Plaintiffs’ claim rather than this Court’s jurisdiction to hear it. “Just as the proper
characterization of a question as jurisdictional rather than procedural can be slippery, the
distinction between jurisdictional and merits issues is not inevitably sharp, for the two inquiries
may overlap.” Perry v. Merit Sys. Prot. Bd., 137 S. Ct. 1975, 1987 (2017) (citing Shaof v. Dep’t
of Agric., 260 F.3d 1336, 1341 (Fed. Cir. 2001). The Greystone Defendants contend that Plaintiffs’
requested accommodation is not “necessary” within the meaning of the FHAA, that the condo
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association proposed suitable alternative accommodations, and that they were not on notice of
Sandra’s disability. (Defs.’ Mot. to Dismiss, PageID.446.) All that may be true, but such issues
speak to the merits of Plaintiffs’ case rather than the jurisdiction of this Court to hear an FHAA
Taking the Greystone Defendants’ argument to its logical conclusion reveals that they are
challenging the merits of the Wallaces’ case instead of jurisdiction. For example, assume the
FHAA claim went to trial solely on the issue of whether Plaintiffs’ exclusive use of the Disputed
Area was truly “necessary” within the meaning of the FHAA and that the jury found against the
Wallaces. Would such a finding mean that this Court lacked subject matter jurisdiction over the
case from the beginning? Surely not. The issues raised by the Greystone Defendants are ones of
merit, not jurisdiction. Plaintiffs have alleged that they need exclusive use of the Disputed Area
to accommodate Sandra’s disability, and that the condo association denied the Wallaces’ request
with full knowledge of Sandra’s reduced mobility. The Greystone Defendants are challenging the
veracity of those allegations.
However, the truth or untruth of the challenged allegations ultimately speak to the merits
of the case rather than jurisdiction. It is therefore inappropriate for the Court to undertake
extensive factual review in deciding the Greystone Defendants’ Rule 12(b)(1) motion. Plaintiffs
have provided allegations sufficient to confer the Court jurisdiction to hear their purported FHAA
C. State Claims
1. Against the Parkers
“Federal courts are courts of limited jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of
Am., 551 U.S. 375, 377 (1994). By statute, federal district courts are granted original jurisdiction
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over all “civil actions arising under the Constitution, laws, or treaties of the United States.” 28
U.S.C. § 1331. Except in narrow instances, federal courts lack jurisdiction to adjudicate claims
based in state law. See United Mine Workers of Am. v. Gibbs, 383 U.S. 715 (1966). Diversity
jurisdiction grants federal courts authority to hear state claims so long as each plaintiff resides in
a different state from each defendant and the amount in controversy exceeds $75,000. 28 U.S.C.
§ 1332. Federal courts may also exercise supplemental jurisdiction over state claims where the
court has original jurisdiction with respect to some claims and the state claims “are so related to
claims in the action within . . . original jurisdiction that they form part of the same case or
controversy.” 28 U.S.C. § 1367(a). Relatedness exists where “the state and federal claims . . .
derive from a common nucleus of operative fact.” Gibbs, 383 U.S. at 725.
Where, as here, adjudication of a pre-answer motion to dismiss leaves the plaintiff without
any federal causes of action, courts should not exercise supplemental jurisdiction over the state
claims. See Gibbs, 383 U.S. at 726 (“[I]f the federal claims are dismissed before trial . . . the state
claims should be dismissed as well.”). Because this court will dismiss Plaintiffs’ FHAA claim
against the Parkers, it will not exercise jurisdiction over any of Plaintiffs’ state law claims against
the Parkers. Therefore, the state law claims against the Parkers will be dismissed.
2. Against the Greystone Defendants
In deciding whether to exercise supplemental jurisdiction, courts should weigh various
factors, including “judicial economy, convenience and fairness to litigants.” Gibbs, 383 U.S. at
726. Nevertheless, the state and federal claims must still share “a common nucleus of operative
fact” and “[n]eedless decisions of state law should be avoided both as a matter of comity and to
promote justice between the parties, by procuring for them a surer-footed reading of applicable
law.” Id. at 725-26; see also Landefeld v. Marion Gen. Hosp., Inc., 994 F.2d 1178, 1182 (6th Cir.
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1993) (courts should avoid needlessly deciding state law issues) (citing Aschinger v. Columbus
Showcase Co., 934 F.2d 1402, 1412 (6th Cir. 1991)). Under 28 U.S.C. § 1367(c)(2), courts “may
decline to exercise supplemental jurisdiction over a claim if . . . the claim substantially
predominates over the claim or claims over which the district court has original jurisdiction.”
Plaintiffs bring nine state law claims (Counts II-VI, X-XIII) against the Greystone
Defendants. Count II alleges a violation of a parallel state law forbidding discrimination against
persons with disabilities. Count III seeks a declaration from the Court that the Disputed Area be
recorded as a limited common element appurtenant to the Wallaces’ condo in the Emmet County
Register of Deeds. Counts IV-VI and X-XIII state various claims rooted in condo law or relating
to the Greystone Defendants’ failure to properly recognize the Disputed Area as a limited common
element of the Wallaces’ condo.
Except for Count II, all of Plaintiffs’ state claims substantially predominate over their
FHAA action. The FHAA claim and Count II simply ask whether federal and state law require
that the Wallaces’ receive their requested accommodation, regardless of any rights or obligations
of other parties. Put another way, relief under the FHAA claim and Count II does not require a
court order decreeing that the Disputed Area be permanently committed to exclusive use by the
present and future owners of the Wallaces’ condo, nor is their relief contingent upon proving the
legal status of the Disputed Area under state law.
The remaining state claims, on the other hand, all turn on whether the Disputed Area is or
should be a limited common element appurtenant to the Wallaces’ condo. The latter issue involves
resolving all kinds of factual disputes (was the Disputed Area always intended to be appurtenant
to the Wallaces’ condo?) and legal questions (are there violations of Michigan condo law?) that
need not be addressed in the slightest to adjudicate the FHAA claim. There is not enough of a
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“common nucleus of operative fact” here, and the Court would risk “needlessly deciding state law
issues” if it took up all of Plaintiffs’ state claims. Gibbs, 383 U.S. at 725-26. Moreover, Counts
III-VI and X-XIII predominate the FHAA claim. See James v. Sun Glass Hut, Inc., 799 F. Supp.
1083, 1085 (D. Colo. 1992) (various state contract claims predominated single federal employment
discrimination claim). The Court will therefore decline to exercise supplemental jurisdiction over
Counts III-VI and X-XIII.
For the reasons stated, the Parkers’ motion to dismiss (ECF No. 16) will be granted. The
Greystone Defendants’ motion to dismiss (ECF No. 19) will be denied in part and granted in part.
The Court will not dismiss Plaintiffs’ FHAA claim against the Greystone Defendants for lack of
subject matter jurisdiction, but will decline to exercise supplemental jurisdiction over Counts IIIVI and X-XIII. An order will enter in accordance with this Opinion.
Dated: November 16, 2020
/s/ Hala Y. Jarbou
HALA Y. JARBOU
UNITED STATES DISTRICT JUDGE
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