United States of America v. 111 East 88th Partners

Filing 30

MEMORANDUM AND ORDER granting 20 Motion to Amend/Correct. For the foregoing reasons, the Government's motion to amend the complaint (Docket no. 20) is granted. Within seven days of the date of this Order the Government shall file its Amended Complaint. SO ORDERED. (Signed by Magistrate Judge James C. Francis on 9/19/2017) Copies Transmitted this Date By Chambers. (anc)

conditions,

including

depression,

chronic kidney disease.

a

personality

(Complaint, ¶ 15).

disorder,

and

In 1997, he adopted

a dog, Orion, apparently in violation of his lease, which prohibits
tenants

from

permission.

keeping

dogs

without

the

(Complaint, ¶¶ 16, 18).

defendant’s

written

In 1998, the defendant

commenced an eviction action, which was dismissed because the
landlord failed to take action within three months of learning of
the pet’s presence.

(Complaint, ¶ 18).

Orion died in 2006, and Mr. Reich soon adopted another dog,
Maddy, from an animal shelter.

(Complaint, ¶ 19).

In response

to the defendant’s notice of termination of his tenancy, Mr. Reich
asked

that

he

be

able

to

keep

the

animal

as

a

reasonable

accommodation, after which the defendant commenced an eviction
action.

(Complaint, ¶ 21).

Department

of

Housing

and

Mr. Reich filed a complaint with the
Urban

Development

(“HUD”),

and

ultimately the New York State Department of Human Rights filed a
discrimination action on his behalf in state court.
¶ 22).

(Complaint,

In September 2015, the state court ruled that, because Mr.

Reich’s therapist had found that as of March 2014 he no longer met
the criteria for his previous diagnoses, Mr. Reich could not
present evidence of psychological impairment.

2

(Complaint, ¶ 23).

The action was later dismissed. 1

(Complaint, ¶ 23).

In March 2015, Mr. Reich was diagnosed with End-Stage Renal
Disease,

leading

to

deterioration

(Complaint, ¶¶ 15, 27-28).

of

his

mental

health.

In June 2015, Mr. Reich asked for an

accommodation to keep an emotional support dog in his apartment.
(Complaint, ¶ 26).

The defendant thereafter requested that Mr.

Reich provide copies of his therapist’s session notes as well as
medical records and history.

(Complaint, ¶ 29).

Mr. Reich filed

a complaint with HUD, reasoning that the defendant’s requests for
medical information were so burdensome as to constitute a denial
of

his

request.

complaint

and

defendant.

(Complaint,

issued

a

Charge

(Complaint, ¶ 13).

¶

31).

of

HUD

investigated

Discrimination

against

the
the

In October 2016, the Government

filed this action pursuant to 42 U.S.C. § 3612(o)(1).

(Complaint,

¶ 14).
The proposed Amended Complaint alleges the following facts.
Maddy

died

1

in

April

2017.

(Proposed

Complaint,

¶

33).

The original complaint asserts that the action was dismissed
without prejudice.
(Complaint, ¶ 23).
The proposed Amended
Complaint states that the state court later clarified that the
dismissal was with prejudice.
([Proposed] Amended Complaint
(“Proposed Complaint”), attached as App. A to Plaintiff’s
Memorandum of Law in Support of Its Motion to Amend the Complaint
(“Pl. Memo.”), ¶ 23).
3

Approximately one and one-half months later, Mr. Reich asked to be
allowed to adopt another dog for emotional support.
Complaint, ¶ 34).

(Proposed

The defendant then sought

(1)

copies of Mr. Reich’s “medical records and medical
history, including but not limited to medical
management provided, tests conducted with their
results, glomerular filtration rate, MRI, CT scan,
ultrasound or contrast x-ray, for the period of
time Dara Huang MD, Shuchita Sharma, MD, and Kidney
& Hypertension Specialists of New York, P.C. have
been seeing/treating [him],”

(2)

copies of “medical records relating to the claimed
ongoing and continuing medical problems regarding
his ability to receive dialysis,” and

(3)

the “exact breed
wished to adopt.

(Proposed Complaint, ¶ 35).
to

“supplement”

Complaint, ¶ 35).

its

of

the

dog”

that

Mr.

Reich

The defendant also reserved its right

requests

in

various

ways.

2

(Proposed

The Government seeks to amend its complaint to

add these allegations, asserting that the defendant’s responses to
the 2017 accommodation request, like its responses to the 2015
accommodation request, were intended to discourage Mr. Reich from
pursuing

2

his

rights

under

the

FHA

and

reflect

an

intent

to

These requests are very similar to the requests that the
defendant made in connection with Mr. Reich’s 2015 request for
accommodation.
(Determination of Reasonable Cause and No
Reasonable Cause (“HUD Determination”), attached as part of Exh.
A to Declaration of Sharanya Mohan dated Aug. 31, 2017, at 5).
4

discriminate against him based on his disability.

(Proposed

Complaint, ¶ 39).
Discussion
A.

Legal Standard

Rule 15 of the Federal Rules of Civil Procedure provides that
courts

should

requires.”

“freely

give”

leave

to

amend

“when

justice

so

Fed. R. Civ. P. 15(a)(2); accord Foman v. Davis, 371

U.S. 178, 182 (1962); Aetna Casualty & Surety Co. v. Aniero
Concrete Co., 404 F.3d 566, 603 (2d Cir. 2005).
standard

is

consistent

with

[the

Second

“This permissive

Circuit’s]

preference for resolving disputes on the merits.’”

‘strong

Williams v.

Citigroup Inc., 659 F.3d 208, 212–13 (2d Cir. 2011) (quoting New
York v. Green, 420 F.3d 99, 104 (2d Cir. 2005)).

The district

court has broad discretion over motions to amend, see McCarthy v.
Dun & Bradstreet Corp., 482 F.3d 184, 200 (2d Cir. 2007), and may
deny such a motion for any of the following reasons: (1) undue
prejudice to the non-moving party, (2) futility, (3) bad faith or
dilatory motive, (4) repeated failure to cure deficiencies by
previous amendments, or (5) undue delay, United States ex rel.
Ladas v. Exelis, Inc., 824 F.3d 16, 28 (2d Cir. 2016).
B.

Futility

Leave to amend should be denied as futile when the amended
5

pleading would not survive a motion to dismiss under Rule 12(b).
IBEW Local Union No. 58 Pension Trust Fund & Annuity Fund v. Royal
Bank of Scotland Group, PLC, 783 F.3d 383, 389 (2d Cir. 2015).
Thus, the standard governing leave to amend is whether the amended
pleading states a claim on which relief can be granted when all
facts pled are accepted as true and construed in the light most
favorable to the plaintiff.

See Panther Partners Inc. v. Ikanos

Communications, Inc., 681 F.3d 114, 119 (2d Cir. 2012) (citing
Ashcroft v. Iqbal, 556 U.S. 662, 678-80 (2009)).

The non-moving

party bears the burden of demonstrating that the proposed amendment
is futile.

See Allison v. Clos-ette Too, LLC, No. 14 Civ. 1618,

2015 WL 136102, at *2 (S.D.N.Y. Jan. 9, 2015).
The defendant argues that the Government “seeks to circumvent
the administrative framework . . . of the [FHA], which mandates
. . . that enforcement actions initiated by . . . [HUD] proceed
pursuant to a prescribed administrative process.”

(Defendant’s

Memorandum of Law in Opposition to the Government’s Motion to Amend
the Complaint (“Def. Memo.”) at 1).

The FHA establishes certain

procedures to follow upon the filing of an administrative complaint
with

HUD

alleging

a

discriminatory

housing

practice.

These

include notice to the respondent, an investigation of the claim,
a conciliation process, and a determination of whether reasonable
6

cause exists to believe that a discriminatory housing practice has
occurred.

42 U.S.C. § 3610(a)-(b), (g).

Because the Government

did not engage in a new round of investigation, conciliation, and
determination

in

connection

with

Mr.

Reich’s

most

recent

complaint, the defendant asserts it lacks “standing to maintain
this action.” 3

(Def. Memo. at 9).

But “it is well-settled that

a plaintiff is not required to exhaust administrative remedies
before commencing an FHA . . . claim in federal court.”

Sinisgallo

v. Town of Islip Housing Authority, 865 F. Supp. 2d 307, 320–21
(E.D.N.Y. 2012) (collecting cases); see also 42 U.S.C. § 3613
(a)(2)

(allowing

aggrieved

persons

to

commence

civil

actions

without filing administrative complaints); Hart v. Murphy, No.

3

Generally, when a litigant fails to engage in statutorilyprescribed administrative procedures the question is whether that
failure deprives the court of jurisdiction, rather than whether
the non-compliant litigant lacks standing. See, e.g., Fowlkes v.
Ironworkers Local 40, 790 F.3d 378, 384 (2d Cir. 2015) (holding
that
“administrative
exhaustion
is
not
a
jurisdictional
requirement [for a Title VII action]; rather, it is merely a
precondition of suit and, accordingly, it is subject to equitable
defenses”); Paese v. Hartford Life & Accident Insurance Co., 449
F.3d 435, 439, 446 (2d Cir. 2006) (clarifying in context of ERISA
that failure to exhaust administrative remedies “does not mean we
lack subject matter jurisdiction, but rather is an affirmative
defense, subject to waiver, estoppel, futility, and similar
equitable considerations”); Lyons v. Litton Loan Servicing LP, 158
F. Supp. 3d 211, 218 (S.D.N.Y. 2016) (discussing lack of standing
and failure to exhaust as separate bases for motion under Federal
Rule of Civil Procedure 12(b)(1)).
7

8:12-CIV-2020, 2013 WL 1278161, at *1 (M.D. Fla. March 28, 2013)
(“Unlike other remedial federal civil rights legislation, most
notably employment discrimination, neither the Fair Housing Act
nor Section 1982 require that a victim of a discriminatory housing
practice

first

exhaust

his

administrative

remedies

as

a

precondition to filing suit.” (quoting 28 Am. Jur. Trials § 7
(1981)); United States v. Pacific Northwest Electric, Inc., No.
CV-01-019, 2003 WL 24573548, at *21 (D. Idaho March 21, 2003)
(collecting cases) (“Several courts have held that a plaintiff is
not required to pursue conciliation or exhaust any administrative
remedies

before

filing

an

action

under

the

Fair

Housing

Act

. . . .”); United States v. Sea Winds of Marco, Inc., 893 F. Supp.
1051, 1054 (M.D. Fla. 1995) (failure to engage in administrative
procedures is not “detrimental to subsequent actions to enforce
the Fair Housing Act”).
Lynch

noted

in

United

Indeed, as then-District Judge Gerard
States

v.

Hillman

Housing

Corp.,

“[d]epriv[ing] [] victims [of housing discrimination] access to
judicial remedies because of administrative errors on the part of
the agency assigned to assist them would defeat th[e] purpose [of
the FHA].

Nor would [it] further Congress’ goal of conciliating

those disputes that can be resolved short of litigation” since
complainants are allowed to “skip[] the HUD process (and potential
8

administrative conciliation efforts) altogether.”

212 F. Supp.

2d 252, 254-55 (S.D.N.Y. 2002).
For this reason, the Government’s reliance on Rhode Island
Commission for Human Rights v. Graul, 120 F. Supp. 3d 110 (D.R.I.
2015), is unnecessary.

(Pl. Memo. at 7-8).

In that FHA case, the

defendants argued that the “administrative process leading up to
the filing of the complaint was flawed” because the plaintiff “did
not give sufficient notice of the reliance on discriminatory
impact” and because its “efforts at conciliation were inadequate.”
Graul, 120 F. Supp. 3d at 118 (emphasis omitted).
analogized

to

Title

VII

cases,

in

which

“[t]he

The court
exhaustion

requirement serves to give a potential defendant ‘prompt notice of
the claim and to create an opportunity for early conciliation.’”
Id. (quoting Lattimore v. Polaroid Corp., 99 F.3d 456, 464 (1st
Cir. 1996)).

The notice requirement “serves to limit the scope

of any subsequent complaint to ‘the charge filed . . . and the
investigation which can reasonably be expected to grow out of that
charge.’”

Id. (quoting Lattimore, 99 F.3d at 464).

Relying on

those principles, the court held that the plaintiff could allege
claims reasonably related to the charge that the complainant had
filed with the administrative agency.

Id. at 120.

However, as

noted above, the FHA does not require a plaintiff to engage in the
9

administrative process, see, e.g., Sinisgallo, 865 F. Supp. 2d at
320–21; Pacific Northwest Electric, 2003 WL 24573548, at *21, or
even to file a complaint with an administrative agency, see, e.g.,
Hart, 2013 WL 1278161, at *1 (“Although the Fair Housing Act
provides that an aggrieved person may file a complaint with HUD,
more immediate and meaningful relief is more likely obtainable if
the

complainant

bypasses

the

administrative

complaint

process

entirely and immediately files suit in federal district court.”
(quoting 28 Am. Jur. Trials § 7 (1981)).

Where there is no

requirement that a plaintiff file an administrative complaint at
all, I cannot see why such a document, if filed, should serve to
limit the allegations in an action in federal court.
Therefore,

the

Government’s

failure

to

complete

the

administrative procedures outlined in the FHA after Mr. Reich’s
2017

administrative

complaint

does

not

render

the

proposed

amendment futile.
B.

Prejudice

The

defendant

prejudice

if

the

also

contends

amendment

is

that

allowed

it

will

because

suffer
“the

undue

proposed

amendment will deprive [the] [d]efendant of administrative rights
and remedies otherwise afforded under [the FHA].”
2).

(Def. Memo. at

This is particularly important here, it asserts, because Mr.
10

Reich litigated a similar accommodation claim in state court and
lost.

(Def. Memo. at 2-3).

This argument also fails.

First, the defendant does not have a right to attempt to “have
the complaint dismissed at the administrative level and to create
an administrative record” (Def. Memo. at 11) for the simple reason,
discussed above, that engaging in the administrative adjudication
process is not mandated under the FHA.
what

benefit

the

defendant

would

Moreover, it is not clear

garner

from

administrative

proceedings in connection with the 2017 complaint, as litigation
is already pending.

Additionally, as the Government points out,

in its review of Mr. Reich’s 2015 administrative complaint, HUD
already analyzed the effect of the prior adjudication on the 2015
claim.

(Plaintiff’s Reply Memorandum in Further Support of Its

Motion to Amend the Complaint (“Reply”) at 5; HUD Determination at
2-4, 7).

As the 2017 complaint is eerily similar to the 2015

complaint -- the major difference is merely that Mr. Reich asked
for an accommodation allowing a different dog than Maddy to occupy
his apartment -- “there is no basis to think that HUD would resolve
this new complaint differently.”

(Reply at 5).

Finally, to the

extent that the defendant wants an opportunity to resolve this
action without further litigation, “this Court’s mediation program
is available . . . by simple request to the Court, as are []
11