Lath v. Vallee et al
ORDER denying 166 Motion for Summary Judgment. So Ordered by Judge Landya B. McCafferty.(gla)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Civil No. 16-cv-463-LM
Opinion No. 2018 DNH 012
Oak Brook Condominium Owners’
Association, Gerard Dufresne,
and Betty Mullen
O R D E R
This case now consists of seven claims against three
Before the court is a motion for summary judgment
on Counts 1, 2, and 13.
Oak Brook Condominium Owners’
Association (“the Association”) objects.
For the reasons that
follow, Lath’s motion for summary judgment is denied.
I. Summary Judgment Standard
“Summary judgment is appropriate when the record shows that
‘there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.’”
President & Fellows of Harvard Coll., 840 F.3d 57, 61 (1st Cir.
2016) (quoting Farmers Ins. Exch. v. RNK, Inc., 632 F.3d 777,
782 (1st Cir. 2011); citing Fed. R. Civ. P. 56(a)).
court considers a motion for summary judgment, “[t]he evidence
In an order that is being issued simultaneously with this
one, the court denies Lath’s motions to amend his complaint to
add several new claims against Gerard Dufresne, Betty Mullen,
and the Manchester Police Department.
. . . must be viewed in the light most favorable to the
nonmoving party . . . and all reasonable inferences must be
taken in that party’s favor.”
Harris v. Scarcelli (In re Oak
Knoll Assocs., L.P.), 835 F.3d 24, 29 (1st Cir. 2016) (citing
Desmond v. Varrasso (In re Varrasso), 37 F.3d 760, 763 (1st Cir.
Lath has moved for summary judgment on three of his seven
The court considers each in turn.
A. Count 1
In an order dated August 8, 2017, document no. 205, Count 1
was dismissed from this case.
As a consequence, as to Count 1,
Lath’s motion for summary judgment is denied as moot.
B. Count 2
Count 2 is a claim against the Association, under 41 U.S.C.
§ 3604(f)(2)(A), for handicap based discrimination resulting
from the Association’s purported constructive failure to allow
Lath to have an emotional support dog.
Lath is not entitled to
judgment as a matter of law on Count 2.
Failure to make a reasonable accommodation for a person’s
handicap can be an unlawful housing practice under the Fair
See Astralis Condo. Ass’n v. Sec’y, HUD, 620 F.3d
62, 67 (1st Cir. 2010).
To establish a prima facie case of failure to
accommodate under the [Fair Housing Act], a claimant
must show that he is handicapped within the purview of
42 U.S.C. § 3602(h) and that the party charged knew or
should reasonably have known of his handicap. DuBois
v. Ass’n of Apart. Owners of 2987 Kalakaua, 453 F.3d
1175, 1179 (9th Cir. 2006); cf. Higgins v. New Balance
Ath. Shoe, Inc., 194 F.3d 252, 264 (1st Cir. 1999)
(enunciating similar prima facie case requirement in
claims brought under the ADA). Next the claimant must
show that he requested a particular accommodation that
is both reasonable and necessary to allow him an equal
opportunity to use and enjoy the housing in question.
Bryant Woods Inn, Inc. v. Howard Cnty., Md., 124 F.3d
597, 603 (4th Cir. 1997); cf. Reed v. LePage Bakeries,
Inc., 244 F.3d 254, 261 (1st Cir. 2001) (“[T]he ADA’s
reasonable accommodation requirement usually does not
apply unless ‘triggered by a request’ from the
employee.”) (citation omitted). Finally, the claimant
must show that the party charged refused to make the
requested accommodation. 42 U.S.C. § 3604(f)(3)(B);
Shapiro v. Cadman Towers, Inc., 51 F.3d 328, 336 (2d
Astralis, 620 F.3d at 67.
Here, it is undisputed that on October 23, 2015, Lath asked
the Association for a waiver of its no pets policy so that he
could have an emotional support dog.
It is also undisputed that
on January 6, 2016, approximately 75 days after Lath made his
request, the Association gave him permission to have an
emotional support dog.
Necessarily, Lath bases his claim not on
an outright denial of his request for an accommodation but,
rather, on a constructive denial.
With respect to constructive denial, the court explained,
in a previous order:
[A] request for a reasonable accommodation may be
constructively denied when the entity from whom the
accommodation is requested unnecessarily delays its
response. See, e.g., United States v. Town of Garner,
720 F. Supp. 2d 721, 729 (E.D.N.C. 2010) (“Denial of a
reasonable accommodation request may be actual or
constructive, ‘as an indeterminate delay has the same
effect as an outright denial’”) (quoting Groome Res.,
Ltd. v. Parish of Jefferson, 234 F.3d 192, 199 (5th
Cir. 2000)); see also Sabal Palms Condos. of Pine
Island Ridge Ass’n, Inc., 6 F. Supp. 3d 1272, 1290–91
(S.D. Fla. 2014) (“[i]n some circumstances, a housing
provider that refuses to make a decision could be
found to have constructively denied the request by
‘stonewalling’ and short-circuiting the process”)
(quoting Overlook Mut. Homes, Inc. v. Spencer, 415 F.
App’x 617, 622 (6th Cir. 2011)).
Order (doc. no. 72) 14.
The Association neither stonewalled nor
short-circuited the process by refusing to make a decision on
Lath’s request, and its “delay” in granting Lath’s request was
not indeterminate; it lasted approximately 75 days.
undisputed record before it, the court is not prepared to rule,
as a matter of law, that the amount of time the Association took
to grant Lath’s request for an emotional support dog constituted
a constructive denial of his request.
Accordingly, Lath is not
entitled to summary judgment on Count 2.
C. Count 13
Count 13 is a claim against the Association for breach of
contract, arising from the Association’s failure to accept mail
addressed to Lath.
Lath is not entitled to judgment as a matter
of law on Count 13.
Under New Hampshire law, “[a] breach of contract occurs
when there is a failure without legal excuse to perform any
promise which forms the whole or part of a contract.”
Jalbert, No. 2016-0463, 2017 WL 2799476, at *1 (N.H. Mar. 24,
2017) (quoting Lassonde v. Stanton, 157 N.H. 582, 588 (2008)).
Here, Lath has not produced undisputed evidence that there was
an enforceable contract between himself and the Association
under which the Association was obligated to accept his mail.
And the Association has produced evidence sufficient to create a
triable issue of fact concerning the question of whether it had
a legal excuse not to accept Lath’s mail.
Association has produced evidence that its agents stopped
accepting Lath’s mail because Lath had accused them of stealing
his mail, and they did not want to expose themselves to any
further accusations of that sort.
Accordingly, Lath is not
entitled to summary judgment on Count 13.
For the reasons described above, plaintiff’s motion for
partial summary judgment, document no. 166, is denied.
United States District Judge
January 11, 2018
Counsel and pro se parties of record.
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