Webster v. Advanced Management Group Nevada, LLC et al
Filing
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ORDER Granting 7 Motion to Dismiss; and Granting 10 Motion to Dismiss; and Granting 11 Motion to Dismiss. FURTHER ORDERED that the Clerk enter Judgment for Defendants and against Plaintiff. Signed by Judge Kent J. Dawson on 8/1/11. (Copies have been distributed pursuant to the NEF - MMM)
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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WILLIAM T. WEBSTER,
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Plaintiff,
Case No. 2:10-CV-01390-KJD-RJJ
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v.
ORDER
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ADVANCED MANAGEMENT GROUP
NEVADA, LLC; SUNFLOWER
APARTMENTS; ROBERT ANDINO,
individually and in his capacity as Manager
of Sunflower Apartments.
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Defendants.
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Presently before the Court is Defendant Sunflower Apartment’s Motion to Dismiss (#7), and
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Defendants Advanced Management Group of Nevada, LLC, and Robert Andino’s Motions to
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Dismiss (#10, #11). Plaintiff filed a response in opposition to both motions (#15, #16), to which
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Defendants jointly replied (#17).
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I. Facts
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Plaintiff became a resident of Sunflower Apartments on May 27, 2010 on a week-to-week
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tenancy basis. The apartment was fully furnished by Sunflower Apartments. Plaintiff alleges that he
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informed apartment manager Robert Andino (“Andino”) that “he was a person with a ‘disability’.”
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(Doc. 3, pg. 2). On July 17, 2010 the apartment manager posted a five day notice to pay or quit on
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Plaintiff’s door. On July 22, 2010, Plaintiff filed an answer to the notice with the Las Vegas Justice
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Court (“Justice Court”) claiming disability discrimination under the Fair Housing Act, 42 U.S.C.
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§3604, as a defense. Plaintiff states that he is withholding rental payments until the court makes a
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decision on the disability charge. (Doc. 3, pg. 2). On August 10, 2010, Andino allegedly entered
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Plaintiff’s apartment and removed the furnished bed and television set. On August 23, 2010,
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Plaintiff agreed to pay the delinquent rent amounts and the Justice Court stayed the eviction for six
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days. On August 30, 2010, the Justice Court ruled that the terms of the stay had not been met and the
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stay was no longer in effect. The eviction order was then sent to the constable. Plaintiff filed the
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present complaint on August 16, 2010, alleging discrimination based on a disability and interference
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with enjoyment of a dwelling under the Fair Housing Act (“FHA”).
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II. Motion to Dismiss Standard
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In considering a motion to dismiss for failure to state a claim under FRCP 12(b)(6), “all well-
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pleaded allegations of material fact are taken as true and construed in a light most favorable to the
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non-moving party.” Wyler Summit Partnership v. Turner Broadcasting System, Inc., 135 F.3d 658,
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661 (9th Cir.1998). Consequently, there is a strong presumption against dismissing an action for
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failure to state a claim. See Gilligan v. Jamco Dev. Corp., 108 F.3d 246, 249 (9th Cir.1997) (citation
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omitted). “To survive a motion to dismiss, a complaint must contain sufficient factual matter,
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accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S.Ct.
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1937, 1949 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Plausibility, in
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the context of a motion to dismiss, means that the plaintiff has pleaded facts which allow “the court
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to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. The
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Iqbal evaluation illustrates a two prong analysis. First, the Court identifies “the allegations in the
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complaint that are not entitled to the assumption of truth,” that is, those allegations which are legal
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conclusions, bare assertions, or merely conclusory. Id. at 1949–51. Second, the Court considers the
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factual allegations “to determine if they plausibly suggest an entitlement to relief.” Id. at 1951. If the
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allegations state plausible claims for relief, such claims survive the motion to dismiss. Id. at 1950.
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The Court liberally construes pro se pleadings. See Leyva v. Neven, 2010 U.S. Dist. LEXIS 122661
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(D. Nev. 2010).
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III. Analysis
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A. Claim 1
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Plaintiff alleges that Defendants’ violated 42 U.S.C. §3604(c), stating that Defendants’
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apartment rental advertisement discriminated against Plaintiff’s disability by placing a limitation on
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the length of time Plaintiff would be allowed to have a bed and television.
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“An oral or written statement violates 42 U.S.C. §3604(c) if it suggests a preference,
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limitation or discrimination to the ‘ordinary listener’ or reader.” Housing Rights Center v. Sterling,
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404 F.Supp 2d 1179, 1193 (C.D. Cal. 2004). Plaintiff has attached a copy of the Sunflower
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Apartment online rental advertisement to his complaint. The advertisement makes no blatant or
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ambiguously discriminating comments. Defendants’ advertisement does not reference a time
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limitation on the bed and or television. Plaintiff fails to plausibly assert any facts to suggest that the
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removal of such items was done with intent to discriminate or limit Plaintiff’s rights under the FHA.
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Upon review of Defendants’ advertisement it is reasonable to conclude that there is no statement
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taken separately or as a whole that would lead an “ordinary listener” to conclude the advertisement
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had any discriminatory intent.
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Furthermore, Plaintiff has not established a disability under the FHA. 42 U.S.C. §3602(h)(1-
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3) states that a handicap with respect to a person means: (1) a physical or mental impairment which
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substantially limits one or more of such person’s major life activities; (2) a record of having such
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impairment; or (3) being regarded as having such an impairment. Plaintiff uses “handicap,” and
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“disability” interchangeably which is appropriate. See Giebeler v. M&B Associates, 343 F.3d 1143,
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1146 (9th Cir. 2003). Plaintiff sets forth no facts to indicate he has met any of these elements. Apart
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from not paying his rent, Plaintiff has plead no alternative reasons to infer that the removal of the
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items was based on disability discrimination.
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Plaintiff has neither plead facts which allow this Court to infer any liability on Defendants’
part, nor does Plaintiff’s Complaint meet the standards of plausibility with respect to discrimination
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in the advertisement and in meeting the elements for establishing a recognized disability under the
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FHA. Therefore, the Court dismisses this claim.
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B. Claim 2:
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Plaintiff claims a violation of 42 U.S.C. §3604(f)(2)(A) which makes it unlawful to
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discriminate against any person in the terms, conditions, or privileges for a sale or rental of a
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dwelling, or in the provision or services of the dwelling or in connection with the dwelling because
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of a handicap. “Discrimination includes a refusal to make reasonable accommodations in rules,
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policies, practices, or services, when such accommodations may be necessary to afford such a person
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equal opportunity to use and enjoy a dwelling . . .” 42 U.S.C. §3604(f)(3)(B). To establish a claim
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under 42 U.S.C. §3604(f)(3), a plaintiff must satisfy all the following elements: (1) plaintiff is
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handicapped within the meaning of 42 U.S.C. 3602(h); (2) defendant knew or should reasonably be
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expected to know of the handicap; (3) accommodation of the handicap may be necessary to afford
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the handicapped person an equal opportunity to use and enjoy the dwelling; (4) the accommodation
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is reasonable; and (5) defendant refused to make the requested accommodation. Dubois v. Ass’n. of
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Apartment Owners, 453 F.3d 1175, 1179 (9th Cir. 2006).
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Plaintiff fails to sufficiently plead facts that allege a disability under the FHA. Plaintiff
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indicates that he told Andino he had a disability. Plaintiff pleads no plausible facts to allow the
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Court to infer that the Defendants failed to reasonably accommodate the Plaintiff with respect to his
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unknown disability. Plaintiff does not indicate how Defendants’ actions deprived him of equal
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enjoyment in contrast to other tenants. Plaintiff only provides the fact that he has never paid rent
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since becoming a tenant. Plaintiff’s complaint lacks any well pleaded facts to support his claims.
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Accordingly, Claim 2 is dismissed.
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C. Claim 3:
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Plaintiff alleges a violation of 42 U.S.C. §3617 stating that Defendants interfered with
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Plaintiff’s enjoyment of his dwelling by removing the television and bed from the unit resulting in
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the unit no longer being considered “fully furnished” and that Defendants forcefully entered his unit
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and removed the items which intimidated and threatened Plaintiff’s rights of tenancy.
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In order to bring a §3617 claim, the Plaintiff has to prove the following elements: (1) he is a
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protected individual under the FHA; (2) he was engaged in the exercise or enjoyment of his fair
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housing rights; (3) Defendants coerced, threatened, intimidated, or interfered with Plaintiff on the
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account of his protected activity under the FHA; and (4) Defendants were motivated by an intent to
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discriminate. Bloch v. Frischholz, 587 F.3d 771, 783 (7th Cir. 2009). An interference “constitutes
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more than a ‘quarrel’ among neighbors or an ‘isolated act of discrimination,’ but rather a pattern of
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harassment, invidiously motivated.” Id. Furthermore, Congress did not intend the FHA to
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encompass all broad assertions of discriminatory conduct interfering with an individual’s enjoyment
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of his or her home. Egan v. Schmock, 93 F.Supp. 2d 1090, 1093 (N.D. Cal. 2000).
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Plaintiff’s complaint fails to allege discernable facts indicating any §3617 elements. Apart
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from Plaintiff’s unidentified disability, there are no plausible facts showing the existence of
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discriminating actions. No factual support is given regarding Defendants’ discriminatory
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motivations. Plaintiff’s allegation of interference of enjoyment because of Defendants’
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discrimination are too broad and lack any consistent pattern. The only motivation inferred from the
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complaint is Plaintiff’s failure to pay rent. Plaintiff has not shown he is protected under the FHA, or
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that there was any interference, intimidation, or coercion based on a protected activity under the
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FHA, and that Defendants were motivated by an intent to discriminate. Plaintiff has not alleged
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plausible facts to support his §3617 claim. Therefore, the Court dismisses Claim 3.
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Given Plaintiff’s pro se capacity, the Court would grant Plaintiff the opportunity to amend his
complaint, but doing so would be futile because Plaintiff’s claims are barred by res judicata.
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D. Res Judicata
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The doctrine of res judicata provides that a final judgment on the merits bars further claims
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by parties or their privies based on the same cause of action. Tahoe-Sierra Preservation Council Inc.,
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v. Tahoe Regional Planning Agency, 322 F.3d 1064, 1077 (9th Cir. 2003). Res judicata bars re5
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litigation of all grounds of recovery that were asserted, or could have been asserted, in a previous
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action between the parties, where the previous action was resolved on the merits. Id. at 1078.
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The Nevada Supreme Court utilizes a three factor test which requires that: (1) the parties or
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their privies are the same; (2) the final judgment is valid; and (3) the subsequent action is based on
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the same claims or any part of them that were or could have been brought in the first case. Brey v.
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M&I Bank, 2010 U.S. Dist. LEXIS 92260, 9 (D. Nev. 2010) (citing Five Star Capital Corp. v. Ruby,
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194 P.3d 709, 713 (Nev. 2008)).
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I. Same Parties or Privies
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“Privity is a legal conclusion designating a person so identified in interest with a party
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to former litigation that he represents precisely the same right in respect to the subject matter
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involved.” Id. at 9-10. The parties to the Justice Court hearing were Webster and Sunflower
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Apartments. The parties in the current action are: Webster, Sunflower Apartments, Advanced
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Management Group Nevada, LLC, and Robert Andino (manager) of Sunflower Apartments.
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The present parties have an identified interest in the prior action in Justice Court.
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Those interests were the same and were represented by Sunflower Apartments in the Justice Court
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proceeding. Andino, acting as apartment manager, and Advanced Management Group, having at
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least some controlling interest in the Sunflower Apartments, are similarly interested in Plaintiff’s
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failure to pay rent and the resulting eviction. The claims brought by Plaintiff in his defense concern
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his tenancy and the actions taken by Andino in his capacity as manager of the complex. Sunflower
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Apartments interest in evicting a tenant for failure to pay rent is considered to be representative of
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the interests of the apartment manager and the management company of the apartment complex.
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2. Valid Final Judgment
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Justice Court Case No. 10E011846 granted Defendants’ petition to evict Webster on
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August 30, 2010. Plaintiff has not appealed, or disputed the validity of the order of eviction.
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Therefore, this element has been met.
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3. Same Claim in Subsequent Action
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Whether two suits involve the same claim or cause of action requires us to look at
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four criteria: (1) whether the two suits arise out of the same transactional nucleus of facts; (2)
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whether rights or interests established in the prior judgment would be destroyed or impaired by
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prosecution of the second action; (3) whether the two suits involve infringement of the same right;
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and (4) whether substantially the same evidence is presented in the two actions. Mpoyo v. Litton
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Electro-Opitcal Systems, 430 F.3d 985, 987 (9th Cir. 2005).
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The transaction test determines whether the two suits share a common nucleus of
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operative fact by deciding “whether they are related to the same set of facts and whether they could
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conveniently be tried together.” Id. Both the Justice Court action and the present action arise out of
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Plaintiff’s tenancy in Defendants’ apartment complex. The failure to pay or withhold rent, the
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actions surrounding the eviction notice, and the actions of the complex manager comprise the
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nucleus of facts surrounding both causes of action. All of the arguments brought or that should have
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been brought by Plaintiff in the prior action are being brought in the current action. The claims arise
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from the same nucleus of facts set forth by the Plaintiff. Both actions could have been tried together
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based on the factual account and claims set forth by Plaintiff. This satisfies the first element.
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The rights of the Defendants in the prior action resulting in Plaintiff’s eviction would
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be destroyed or impaired if the present action were prosecuted. Repetitive action in this Court would
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do nothing more than duplicate State court proceedings and burden the Federal Courts with matters
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already litigated. The second element has been met.
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The claims brought by Plaintiff in Justice Court as a defense are the same claims
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being brought as allegations in the present case. Violations of the FHA are the allegations Plaintiff
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has relied upon both as a defense in his Justice Court eviction hearing and in his claims to this Court.
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The two suits unequivocally entail the infringement of the same rights. The factual recitation by the
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Plaintiff of the same claims and arguments brought in both matters is sufficient to maintain that the
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evidence and facts would be the same in both matters. Thus, the third and fourth elements have been
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met.
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The Justice Court hearing granting the motion to evict Plaintiff acts as a valid
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judgment for purposes of res judicata. Plaintiff brought, as a defense in that action, the same claims
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he brings in the present action. Defendants were in privity with the Plaintiff in the earlier suit. Since
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res judicata bars Plaintiff’s claims, the Court denies Plaintiff leave to file an amended complaint.
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IV. Conclusion
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Accordingly, IT IS HEREBY ORDERED that Defendant Sunflower Apartment’s Motion to
Dismiss (#7) is GRANTED;
IT IS FURTHER ORDERED that Defendants Advanced Management Group Nevada,
LLC, and Robert Andino’s Motions to Dismiss (#10, #11) are GRANTED.
IT IS FURTHER ORDERED that the Clerk of the Court enter Judgment for Defendants
and against Plaintiff.
DATED this 1st day of August 2011.
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_____________________________
Kent J. Dawson
United States District Judge
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