Miami Valley Fair Housing Center Inc et al v. Preferred Real Estate Investments, LLC, et al.,

Filing 83

ORDER granting in part and denying in part 58 Defendants' Motion for Summary Judgment and granting in part and denying in part 70 Defendant Jonathan Barnes Architecture and Design's Motion for Summary Judgment. Signed by Judge George C. Smith on 3/8/17. (sem)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
MIAMI VALLEY FAIR HOUSING
CENTER, INC., et al.,
Plaintiffs,
v.

Case No.: 2:15-cv-2737
JUDGE SMITH
Magistrate Judge Jolson

PREFERRED REAL ESTATE
INVESTMENTS, LLC, et al.,
Defendants.
OPINION AND ORDER
This matter is before the Court upon two separate motions for summary judgment.
Defendants Preferred Real Estate Investments, LLC, Preferred Real Estate Investments II, LLC,
Preferred Real Estate Investments, Inc., Andover Park, LLC, Taylor House, LLC, Palmer
Square, LLC, Clifton Park, LLC and Alexander Square, LLC (collectively, the “Preferred
Defendants”) filed their Motion for Summary Judgment on August 24, 2016 (Doc. 58).
Plaintiffs Miami Valley Fair Housing Center (“MVFHC”) and the Central Ohio Fair Housing
Association (“COFHA”) responded (Doc. 65) and the Preferred Defendants replied (Doc. 69).
Defendant Jonathan Barnes Architecture and Design, Ltd. (“JBAD”) filed its own Motion for
Summary Judgment (Doc. 70) to which Plaintiffs responded (Doc. 73) and JBAD replied (Doc.
82). Both motions are fully briefed and are ripe for disposition.1 For the following reasons, both
Motions are GRANTED in part and DENIED in part.

1

Although Plaintiffs have requested an oral argument on the present Motions, the Court has been supplied with a
thorough record and the Court does not need to hear further arguments from the parties prior to disposition.

I.

BACKGROUND

This action arises out of alleged violations of the Fair Housing Act, Title VIII of the Civil
Rights Act of 1968, as amended by the Fair Housing Amendments Act of 1988 (“FHAA”), 42
U.S.C. §§ 3601–3619.

Plaintiffs allege that Preferred Defendants and JBAD violated and

continue to violate the accessibility requirements of the FHAA, thereby discriminating against
people with disabilities. (Doc. 2, Am. Compl. at ¶¶ 1–2). Plaintiffs allege that Palmer House,
Clifton Park, Andover Park, Alexander Square, and Taylor House (the “Subject Properties”)—all
of which are multifamily dwellings located in and around Columbus, Ohio—were not designed
or constructed in conformity with the FHAA (Id. at ¶ 2).
Plaintiff MVFHC is a non-profit organization that aims to eliminate housing
discrimination. MVFHC’s home office is located in Dayton, Ohio. MVFHC’s website sets forth
its mission statement:
The mission of the Miami Valley Fair Housing Center (MVFHC) is to eliminate
housing discrimination and ensure equal housing opportunity for all people in our
region.
Specifically, the Miami Valley Fair Housing Center seeks to eliminate housing
discrimination against all persons because of race, color, religion, national origin,
sex disability, familial status, or any other characteristic protected under state or
local laws. In furthering this goal, MVFHC engages in activities designed to
encourage fair housing practices through educational efforts; assists person who
believe they have been victims of housing discrimination; identified barriers to
fair housing practices; works with elected and government representatives to
protect and improve fair housing laws; and takes all appropriate and necessary
action to ensure that fair housing laws are properly enforced throughout the
Miami Valley.
(Doc. 58-7, MVFHC Miss. Stmt. (emphases added)). MVFHC’s Director of Investigations and
Enforcement, Anita Schmaltz, confirmed that this statement is an accurate portrayal of
MVFHC’s mission.

(Doc. 58-6, Schmaltz Dep. at 67–68).

Another MVFHC employee,

Miranda Wilson, testified that MVFHC’s service area included Montgomery, Preble, Miami,

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Greene, Warren, and Butler counties, Springfield, Ohio, and parts of Springboro, Ohio. (Doc.
58-8, Wilson Dep. at 17).
Located in Columbus, Plaintiff COFHA is also a non-profit organization with the same
ultimate goal as MVFHC—ending housing discrimination—but for people throughout central
Ohio. (Doc. 2, Am. Compl. at ¶ 9). In 2014, MVFHC formed COFHA to serve as a separate
organization with a physical presence in Columbus. (Doc. 65-9, McCarthy Dep. at 77). In fact,
COFHA’s mission statement is identical to MVFHC’s except it identifies a different geographic
region as its service area. (Compare Doc. 58-7, MVFHC Miss. Stmt. (“Miami Valley”) with
Doc. 65-13, COFHA Miss. Stmt. (“Central Ohio”)). COFHA is essentially an extension of
MVFHC, formed as a consequence of MVFHC’s perceived lack of fair housing advocacy in the
Columbus area. (See Doc. 65-8, Zimmerman Dep. at 95–96; Doc. 65-9, McCarthy Dep. at 337–
338; Doc. 65-11, Schmaltz Dep. at 179). Despite the intent for COFHA to exist as a distinct
legal entity from MVFHC, MVFHC wanted to retain control of COFHA in light of the
considerable time, effort, and money MVFHC spent creating the organization. (Doc. 65-9,
McCarthy Dep. at 77). As a result, COFHA and MVFHC share many of the same board
members and executives. (See Doc. 58-13, COFHA Code of Regs. at 3; Doc. 58-14, COFHA
Inter. Resps. at 2–3). Much like MVFHC, COFHA pursues its mission through assistance to
victims of housing discrimination, education and outreach, public policy initiatives, advocacy,
investigation of potential fair housing violations, and enforcement of the FHAA. (Doc. 2, Am.
Compl. at ¶ 9.).
Preferred Defendants include past and present developers, builders, and/or owners of
some or all of the Subject Properties. (Id. at ¶¶ 10–18). Each of Preferred Defendants is

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organized under the laws of Ohio. (Id.). JBAD is an Ohio corporation based out of Columbus
that designed Taylor House.
In 2014, Anita Schmaltz was looking at websites of Preferred Defendants’ multifamily
dwellings in the Columbus area and noticed what she perceived to be FHAA violations. (Doc.
65-11, Schmaltz Dep. at 170). According to Plaintiffs, this discovery caused them to divert
resources to investigate and counteract Defendants’ discriminatory conduct.

Schmaltz

investigated the Subject Properties before visiting and “testing” Clifton Park and Alexander
Square. (Id. at 174–75). “Testers” are individuals who visit a property with no intent to
purchase or rent but only to collect evidence. See Havens Realty Corp. v. Coleman, 455 U.S.
363, 373 (1982). Having found what she believed to be multiple FHAA violations at Clifton
Park and Alexander Square, Schmaltz employed the aid of Jim McCarthy. McCarthy, the
President and CEO of both MVFHC and COFHA, called for more testing to be conducted at
Alexander Square and Andover Park. (Doc. 65-11, Schmaltz Dep. at 293–94, 296). This
additional testing was to be conducted by Miranda Wilson and Rochelle Johnson, who is
quadriplegic and uses a wheelchair.

(Doc. 65-16, Wilson Dep. at 60).

Another

MVFHC/COFHA employee, Thom Curnutte,2 was tasked with obtaining building plans for the
Subject Properties from the City of Columbus. (Doc. 65-18, Curnutte Dep. at 17, 52). MVFHC
also retained two professional architects and an inaccessibility consultant to evaluate some of the
Subject Properties.

Finally, Plaintiffs argue that they had to take extensive measures to

counteract the discriminatory practices of Defendants. Specifically, MVFHC sponsored and
participated in a 2015 Ohio fair housing conference in Columbus.

(Doc. 65-21, MVFHC

Memo). Curnutte was required to attend and provide “primary staffing” of an education and
2

The parties dispute whether Curnutte is an employee of COFHA or MVFHC. The Court will address this issue
below.

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outreach booth at the conference. (Id.). Finally, Plaintiffs allege that they continue to attend fair
housing conferences and provide educational material to counteract Defendants’ conduct.
II.

STANDARD OF REVIEW

Preferred Defendants and JBAD moved for summary judgment pursuant to Rule 56 of
the Federal Rules of Civil Procedure. Summary judgment is appropriate “if the movant shows
that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). The Court’s purpose in considering a summary judgment
motion is not “to weigh the evidence and determine the truth of the matter” but to “determine
whether there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249
(1986). A genuine issue for trial exists if the Court finds a jury could return a verdict, based on
“sufficient evidence,” in favor of the nonmoving party; evidence that is “merely colorable” or
“not significantly probative,” however, is not enough to defeat summary judgment. Id. at 249–
50.
The party seeking summary judgment shoulders the initial burden of presenting the court
with law and argument in support of its motion as well as identifying the relevant portions of
“‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any,’ which it believes demonstrate the absence of a genuine issue of material fact.”
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed. R. Civ. P. 56). If this initial
burden is satisfied, the burden then shifts to the nonmoving party to set forth specific facts
showing that there is a genuine issue for trial. See Fed. R. Civ. P. 56(e); see also Cox v.
Kentucky Dep’t of Transp., 53 F.3d 146, 150 (6th Cir. 1995) (after burden shifts, nonmovant
must “produce evidence that results in a conflict of material fact to be resolved by a jury”). In
considering the factual allegations and evidence presented in a motion for summary judgment,

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the Court must “afford all reasonable inferences, and construe the evidence in the light most
favorable to the nonmoving party.” Id.
III.

DISCUSSION

Preferred Defendants and JBAD both moved for summary judgment on the grounds that
Plaintiffs lacked standing and, alternatively, on the merits of the claims.

JBAD’s Motion

incorporated by reference all of the standing-related arguments already made by Preferred
Defendants. Plaintiffs responded in kind by incorporating by reference the arguments it raised in
opposition to Preferred Defendants’ Motion. As such, this Opinion and Order applies to both
Motions equally.
A.

Standing
1.

Applicable Law

Pursuant to Article III of the United States Constitution, federal jurisdiction is limited to
“cases” and “controversies,” and standing is “an essential and unchanging part of” this
requirement. U.S. Const. art. III, § 2; Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992). A
federal court must not go “beyond the bounds of authorized judicial action and thus offend[]
fundamental principles of separation of powers.” Steel Co. v. Citizens for a Better Env’t, 523
U.S. 83, 94 (1998). If the plaintiff lacks standing, the federal court lacks jurisdiction. Thus,
standing is “the threshold question in every federal case.” Warth v. Seldin, 422 U.S. 490, 498
(1975). “In essence the question of standing is whether the litigant is entitled to have the court
decide the merits of the dispute or of particular issues.” Id.
Standing under Article III has three elements. “First, the plaintiff must have suffered an
‘injury in fact’-an invasion of a legally protected interest which is (a) concrete and particularized,
and (b) actual or imminent, not conjectural or hypothetical.” Lujan, 504 U.S. at 560 (internal
citations and quotation marks omitted). Second, the injury must be “fairly traceable to the
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challenged action of the defendant.” Id. (Internal alterations omitted). Third, it must be likely
that the injury will be “redressed by a favorable decision.” Id. at 561. The burden is on the party
invoking federal jurisdiction to demonstrate Article III standing.
Healthcare, 517 F.3d 911, 916 (6th Cir. 2008).

Stalley v. Methodist

Last, each element of standing must be

supported with the “manner and degree of evidence required at the successive stages of
litigation.” Lujan, 504 U.S. at 561.
Here, Plaintiffs seek to invoke organizational standing on their own behalf.

An

organization may assert standing on its own behalf if “it has suffered a palpable injury as a result
of the defendants’ actions.” MX Grp., Inc. v. City of Covington, 293 F.3d 326, 333 (6th Cir.
2002). Further, an organization must establish “that its ability to further its goals has been
‘perceptibly impaired’ so as to constitute far more than simply a setback to the organization’s
abstract social interests.” Greater Cincinnati Coal. for the Homeless v. City of Cincinnati, 56
F.3d 710, 716 (6th Cir. 1995) (quoting Havens, 455 U.S. at 379).
The Supreme Court first addressed organizational standing under the Fair Housing Act in
Havens. Havens involved a fair housing organization whose activities included “the operation of
a housing counseling service, and the investigation and referral of complaints concerning
housing discrimination.” 455 U.S. at 368. The organization was notified that an apartment
complex was potentially discriminating against prospective tenants on the basis of race. Id. The
organization sent two testers—one Caucasian and one African American—to the complex and
confirmed that racial steering was occurring. Id. The Court found a concrete and demonstrable
injury because the discriminatory conduct “perceptibly impaired [the organization’s] ability to
provide counseling and referral services for low-and moderate-income homeseekers . . . with the
consequent drain on the organizations resources[.]” Id. at 379.

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In the wake of Havens, the Sixth Circuit has recognized “the circuits generally agree that
an organization meets Article III standing requirements where it can show that the defendant’s
alleged violations of the Fair Housing Act caused it to divert resources from other projects or
devote additional resources to a particular project in order to combat the alleged discrimination.”
Fair Hous. Council, Inc. v. Vill. of Olde St. Andrews, Inc., 210 F. App’x 469, 474 (6th Cir.
2006)3 (citing Fair Hous. Council of Suburban Phila. v. Montgomery Newspapers, 141 F.3d 71,
78 (3rd Cir. 1998)). However, the circuit courts have differing views concerning the extent to
which they will consider litigation related injuries.

Some circuits require injury that is

“completely independent from the economic and non-economic costs of the litigation.” Id. at
474 (citing inter alia Spann v. Colonial Vill., Inc., 899 F.2d 24, 27 (D.C. Cir. 1990) (“An
organization cannot, of course, manufacture the injury necessary to maintain a suit from its
expenditure of resources on that very suit. Were the rule otherwise, any litigant could create
injury in fact by bringing a case, and Article III would present no real limitation.”)). Other
circuits take a more lenient approach and only require a “showing that the [organization] diverted
resources toward litigation to counteract the defendant’s housing discrimination. Id. (citing Vill.
of Bellwood v. Dwivedi, 895 F.2d 1521, 1526 (7th Cir. 1990); Ragin v. Harry Macklowe Real
Estate Co., 6 F.3d 898 (2nd Cir. 1993); Arkansas ACORN Fair Hous., Inc. v. Greystone Dev.,
Ltd. Co., 160 F.3d 433, 434–35 (8th Cir. 1998)). The Sixth Circuit has adopted a similarly
lenient approach, requiring “a plaintiff to show some injury that is independent of the costs of
litigation, [but] costs related to prelitigation investigation can form the basis for standing.” Id. at
475.

3

This Order and Opinion primarily cites the Sixth Circuit’s opinion from Olde St. Andrews, 210 F. App’x 469. The
Court will denote any reference to the trial court opinion and order (250 F. Supp. 2d 706) by using the identifier
“Olde St. Andrews II.”

8

In Hooker v. Weathers, 990 F.2d 913 (6th Cir. 1993), the Sixth Circuit made perhaps its
most important ruling in terms of defining the boundaries of what constitutes an injury for
organizational standing purposes. There, a married couple contacted a fair housing organization
because the couple felt the operator of the trailer park in which they lived was discriminating
against them on the basis of their age. Id. at 914. The organization sent a tester to the trailer
park to confirm the conditions reported by the Hookers. Id. The housing organization filed suit
after the tester was prevented from renting the Hooker’s trailer because she was “too young.” Id.
The court ultimately found standing because “[the organization] devoted resources to
investigating the defendants’ practices and alleges that it has confirmed that defendants do
discriminate on the basis of familial status.” Id. at 915.
The Sixth Circuit reached a similar conclusion in Hughes v. Peshina, 96 F. App’x 272
(6th Cir. 2004). In Hughes, a married couple and their three young children attempted to rent a
duplex and were denied by the duplex owners. Id. at 273. The couple contacted a fair housing
organization who investigated the claim and then filed two administrative complaints on the
basis that the couple was discriminated against on the basis of familial status. Id. at 273–74.
Although standing was not being disputed, the court found that the organization had standing
because it “devoted its efforts to investigating whether [the duplex owners] had violated the law,
thus diverting its resources away from the other housing services it provides and frustrating its
mission of insuring fair housing practices..” Id. at 274.
In Olde St. Andrews, the court revisited Hooker and Hughes, among other cases. There,
the court found that plaintiff had organizational standing where a fair housing organization, on
its own volition, discovered what it perceived to be accessibility discrimination.

Olde St.

Andrews, 210 F. App’x at 470–71. The organization sent testers to the property who identified

9

multiple FHAA violations. Id. The Sixth Circuit conferred organizational standing based on the
organization’s expenditures related to the deployment of the testers. Id. at 476–77. The Sixth
Circuit also rejected the defendants’ argument that the alleged injury was not fairly traceable to
the defendants’ conduct because the organization initiated the investigation on its own rather
than at the request of an individual. Id. at 478. The court concluded that “[r]egardless of
whether an organization learns of potential discrimination through independent complaints or
through its own observations, any action it takes in combating that discrimination is fairly
traceable to the defendant’s discriminatory acts.” Id.
Finally, in Miami Valley Fair Hous. Ctr., Inc. v. Connor Grp., 805 F. Supp. 2d 396 (S.D.
Ohio 2011) (“Connor Grp. I”), this Court found organizational standing after a thorough analysis
of Hooker, Hughes, Olde St. Andrews, and other controlling case law. 805 F. Supp. 2d at 405.
In determining Miami Valley’s motion for partial summary judgment, this Court relied on an
affidavit from Miami Valley’s President and CEO, Jim McCarthy which stated:
MVFHC’s resources were diverted as a result of its investigation and this lawsuit,
and its mission frustrated by Defendant The Connor Group’s actions. Because of
time spent monitoring the advertisements by this Defendant, I and other members
of my staff were precluded from doing other fair housing activities. MVFHC
contemporaneously keeps track of our staff time on various projects. Despite
filing an administrative action regarding one of the advertisements, The Connor
Group did not appear to change the types of illegal ads they placed on Craigslist.
MVFHC expended thousands of dollars worth of staff time in pre-litigation
monitoring of The Connor Group and in other efforts designed to combat their
discriminatory advertising, such as developing and presenting programs in the
community.
Id. at 403–04. On appeal, the Sixth Circuit affirmed that Miami Valley had organizational
standing because it alleged that it “had to divert its resources, its staff time and energy to identify
the ad and then to bring the ad to the attention of the appropriate authorities,” thereby suffering a
harm of $5,292.15 in costs. Miami Valley Fair Hous. Ctr., Inc. v. Connor Grp., 725 F.3d 571,
576 (6th Cir. 2013) (“Connor Grp. II”).
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2.

Analysis

Admittedly, the Court has a difficult time reconciling this line of case law with the wellestablished principle that standing cannot be manufactured and a case or controversy cannot be
created by a plaintiff on account of his or her own actions. See Ins. Corp. of Ireland v.
Compagnie des Bauxites de Guinee, 456 U.S. 694, 702 (1982); Spann, 899 F.2d at 27. Nor is
this the first time a court has expressed hesitation in applying the liberal standard established in
Hooker. In Olde St. Andrews, the defendant urged the Sixth Circuit to overturn Hooker. After
noting that the trial court “reluctantly” conferred standing, the court passed on the opportunity to
reaffirm Hooker and instead stated that the Court must adhere to the rule prohibiting one panel
from overturning a prior published opinion of another. Olde St. Andrews, 210 F. App’x at 476.
Be that as it may, this Court echoes the sentiment expressed in Judge Ryan’s concurring opinion
in Olde St. Andrews: “It strikes me as obvious that a non-profit corporation created for the
purpose, inter alia, of bringing lawsuits to enforce the FHA, has not suffered a ‘concrete and
demonstrable injury to [its] activities,’ (emphasis added), simply by conducting one of its
activities-finding suable defendants.

But Hooker has held otherwise, and it is a binding

precedent I am not free to ignore and cannot distinguish in any meaningful way.” Id. at 482
(quoting Havens, 455 U.S. at 379).
Defendants readily acknowledge that MVFHC sent testers to one or more of the Subject
Properties but nevertheless argue that litigation was a foregone conclusion and Plaintiffs always
intended to file suit against Defendants. As such, according to Defendants’ theory, any resources
that MVFHC diverted were in conjunction with, and not independent of the instant litigation. In
support of their contention, Defendants point to MVFHC’s timesheets which contain
correspondence between employees who spoke in terms of “once the case is filed” as early as

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July 19, 2014. (Doc. 65-15, Timesheets at 2). Further, Schmaltz testified that she had gathered
sufficient evidence to file an administrative complaint after her initial test on June 27, 2014, but
elected not to because past administrative complaints were not “effective or timely.” (Doc. 69-2,
Schmaltz Dep. at 176). Finally, Defendants argue that MVFHC’s own timesheets are selfdefeating because they do not reflect any time spent on research or testing in June 2014—when
MVFHC alleges it conducted its testing.
This is not a novel argument. Defendants in Olde St. Andrews posited the same argument
at the summary judgment stage. See Fair Hous. Council, Inc. v. Vill. of Olde St. Andrews, Inc.,
250 F. Supp. 2d 706, 716 (W.D. Ky. 2003) (“Olde St. Andrews II”). There, the trial court stated:
Relying heavily on Spann, Defendants argue that this type of evidence is
insufficient because the Plaintiffs’ “investigation” was undertaken solely in
anticipation of litigation, was an essential part of the litigation itself and,
therefore, was not independent of the injuries associated with the litigation itself.
See Spann, 899 F.2d at 27. Defendants contend that the pre-litigation
investigation in this case is just as “manufactured” as the cost of the litigation
itself, and will render the Article III requirements meaningless because any
organization can create standing merely by “investigating” the claim before filing
suit. Defendants’ argument has a good deal of appeal, especially in this case. If it
was not for this rule, any organization could manufacture Article III standing
merely by filing suit. See id. Here it appears that Plaintiffs’ investigation efforts
were no more than a necessary precursor of this litigation. As Defendants point
out, after the investigation Plaintiffs did not even make an attempt to contact any
of the Defendants before filing this lawsuit.
Id.

4

The trial court ultimately concluded “[a]lthough Defendants [sic] arguments are very

persuasive, the Court cannot ignore that in Hooker the Sixth Circuit found standing in a case
very similar to the present.” Id.

4

At first blush, this approach may seem especially attractive in instances such as the present where housing
organizations conduct an investigation on their own volition, rather than at the request of an aggrieved individual.
However, the Supreme Court has recognized the importance of private enforcement actions within the context of the
FHAA and Congress’ intent to define standing “as broadly as is permitted by Article III of the Constitution. See
Trafficante v. Metro. Life Ins. Co., 409 U.S. 205, 211 (1972). The FHAA specifically allows an aggrieved person to
bring suit and defines “person” to include corporations, associations, and unincorporated organizations such as
Plaintiffs. See 42 U.S.C. §§ 3613(a)(1)(A); 3602(d). Accordingly, “the sole requirement for standing to sue under

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Additionally, there is considerable record evidence to support MVFHC’s argument in
favor of standing. No fewer than four MVFHC employees have provided deposition testimony
detailing the fact that testers were sent and MVFHC diverted some resources to investigating the
purported housing discrimination. (See Docs. 58-5; 58-6; 58-8; 58-31). Defendants concede as
much. (Doc. 58, Mot. at 7–9). This evidence is sufficient to defeat summary judgment under the
Sixth Circuit’s lenient standard.
In addition to their argument relating to whether Defendants’ injuries were truly
independent of the instant litigation, Plaintiffs rely on Connor Grp. I, 805 F. Supp. 2d 396 and
Olde St. Andrews, for the proposition that Plaintiffs are required to show that they “devote[d]
significant resources to identify and counteract the illegal practices.” (Doc. 69, Rep. at 3, 5
(citing Connor Grp. I, 805 F. Supp. 2d at 403; Olde St. Andrews, 210 Fed. App’x. at 477)
(emphasis added)). Although these decisions noted the plaintiff housing organizations used a
significant portion of resources to counteract the allegedly illegal activities of defendants, neither
court created a requirement that the organization’s use of resources must be significant. In fact,
in Olde St. Andrews, standing was conferred where the housing organization diverted only $75 to
deploy testers. Olde St. Andrews II, 250 F. Supp. 2d at 716. As such, the Court is not convinced
that diverted resources must be significant. This position is reinforced by the Sixth Circuit’s
recognition that “[t]he opportunity cost, the value of the opportunity forgone by using funds on
the Olde St. Andrews testing, is real. In our world of scarce resources, every expenditure of
money, time or other resources results in the loss of the benefit that would have resulted if the
same time or money had been spent on something else.” Olde St. Andrews, 210 F. App’x at 477.

[the Act] is the Art. III minima of injury in fact—that the plaintiff allege that as a result of the defendant’s actions he
has suffered a distinct and palpable injury.” Havens, 455 U.S. at 364 (internal quotations omitted).

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The only issue that possibly distinguishes this case from Hooker and Olde St. Andrews is
the fact that MVFHC’s mission statement limits the organization’s geographic service area to the
Miami Valley region, which does not include Columbus or Franklin County. The Sixth Circuit
has not addressed whether this distinction is material. Plaintiffs cite two decisions from the
District Court of Maryland that rejected the argument that plaintiffs were merely regional
entities: Equal Rights Ctr. v. Equity Residential, 483 F. Supp. 2d 482 (D. Md. 2007) (motion to
dismiss stage) and Equal Rights Ctr. v. Equity Residential, 798 F. Supp. 2d 707 (D. Md. 2011)
(summary judgment stage). The Court does not find this guidance helpful because in that case,
the organization explicitly forwarded a national mission.

See 483 F. Supp. 2d at 487

(“Manifestly, ERC is an organization with a mission that is national in scope and breadth.”).
While that is not the case here, the Court finds no reason to impose strict geographic limits on a
housing organization. Under Sixth Circuit case law, all that is required is that an organization
diverts resources independent of the instant litigation to counteract the conduct of defendants.
Havens, Hooker, and it their progeny do not explicitly require the injury to be tied to a
geographic region, and this Court in good conscience cannot read any such requirement into
those cases. Accordingly, the Court concludes that counteraction measures taken outside an
organization’s service area do not preclude that organization from suffering an injury.
Under binding Sixth Circuit precedent, this Court finds that MVFHC has presented facts
sufficient to support a finding of organizational standing at this stage of the litigation. When
viewing the totality of the evidence in the light most favorable to Plaintiffs, the non-moving
party, there is uncontroverted evidence in the record establishing that MVFHC trained and
employed testers to investigate alleged discriminatory conditions brought about by one or more
of the Defendants. In the Court’s view, these are the same facts present in Olde St. Andrews and

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Defendants have not even attempted to distinguish that case from the present. Accordingly,
MVFHC has standing.
While MVFHC has provided enough evidence to establish standing at this stage, COFHA
has not. COFHA argues that it has standing in the instant action based on two theories: (1)
COFHA diverted resources in the form of “redirecting the efforts of Thom Curnutte, COFHA’s
Fair Housing Specialist and sole full-time employee,”; and (2) COFHA increased its education
and outreach efforts to redress the harm Defendants caused to its mission in the form of sending
Curnutte to a 2015 conference where he spent 15 hours handing out educational materials. (Doc.
65, Resp. at 15, 17).
The parties dispute whether Curnutte is an actual employee of COFHA, but there is
undisputed record evidence that shows Curnutte is paid by MVFHC and COFHA has never
issued a W-2. (Doc. 69-1, McCarthy Dep. at 50; Doc. 58-16, Curnutte Dep. at 18; Doc. 69-5,
Davis-Williams Dep. at 38–40).

McCarthy plainly admits that Curnutte is not a COPHA

employee. (Doc. 69-1, McCarthy Dep. at 93 (“Well, Thom Curnutte works at [the Columbus]
office.

He’s not a COFHA employee.

He’s a Miami Valley employee.”)).

Curnutte’s

relationship certainly does not fit into the common understanding of the employee-employer
relationship, which carries a basic connotation that compensation will be given in exchange for
services rendered. Other than asserting that Curnutte works for COFHA, COFHA has not
presented an alternative theory by which Curnutte should be considered a COFHA employee.
There is also no evidence in the record to suggest that COFHA increased its education and
outreach efforts in response to Defendants’ actions. Even assuming Curnutte was a COFHA
employee at the time he attended the 2015 fair housing conference, COFHA fails to demonstrate
that he, or any other representative of COFHA, would not have attended the conference but for

15

Defendants’ actions. Further, it is irrelevant that Plaintiffs continue to attend similar conferences
to counteract the alleged discrimination of Defendants because standing “is tested by the facts as
they existed when the action [was] brought.” Cleveland Branch, N.A.A.C.P. v. City of Parma,
263 F.3d 513, 524 (6th Cir. 2001) (citing Smith v. Sperling, 354 U.S. 91, 93 n. 1 (1957)).
Because COFHA has not offered evidence to show that they diverted resources in response to
Defendants’ actions, it has suffered nothing more than a setback to the organization’s abstract
social interests and COFHA lacks standing.
B.

Merits
Having found that MVFJC has made a sufficient evidentiary showing for the Court to

confer standing at this stage of the litigation, the Court will now proceed to the merits-based
portion of Defendants’ motions for summary judgment. Defendants seek summary judgment on
Plaintiffs’ disability discrimination and accessibility claims against them.
Plaintiffs hired two separate experts to evaluate the Subject Properties and identify
potential violations of 42 U.S.C. § 3604(f). Defendants contend that these inspections were
conducted pursuant to the incorrect standard for determining FHAA compliance. Specifically,
Defendants claim that the inspectors checked the Subject Properties for compliance not with the
general FHAA requirements themselves, but rather with a list of ten safe harbors promulgated by
HUD that were created to help ensure accessibility. Defendants further contend that the Subject
Properties were all constructed in compliance with the Ohio Building Code, which they purport
to be an objective, comparable standard of accessibility.
While the current summary judgment motions were being briefed, Defendants moved to
stay discovery pending the Court’s resolution of the threshold standing issue. Consequently,
Plaintiffs contend that a decision on the merits is premature because more discovery is required
before Plaintiffs can sufficiently oppose Defendants’ position. Plaintiffs correctly identify that
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the Sixth Circuit considers five factors in determining whether a ruling on summary judgment
should be deferred because the nonmovant has requested further discovery: (1) when the
nonmovant learned of the issue that is the subject of the desired discovery; (2) whether the
desired discovery would have changed the ruling below; (3) how long the discovery period had
lasted; (4) whether the nonmovant was dilatory in its discovery efforts; and (5) whether the
nonmovant was responsive to discovery requests.” CenTra, Inc. v. Estrin, 538 F.3d 402, 420
(6th Cir. 2008) (citing Plott v. Gen. Motors Corp., 71 F.3d 1190, 1196–97 (6th Cir. 1995)).
These factors all weigh in favor of the Court deferring its ruling on the merits and reopening
discovery. Plaintiffs only learned of Defendants’ merit-based defenses when their motions for
summary judgment were filed. Plaintiffs have submitted an affidavit from counsel detailing the
discovery that will be sought to address these newly discovered defenses. The original discovery
period was stayed while the Court ruled on the threshold issue of standing and Plaintiffs still
have depositions they wish to conduct.

Plaintiffs have not been dilatory in seeking these

depositions, as several of the remaining deponents were first identified in the Preferred
Defendants’ motion for summary judgment.

Finally, Defendants have not proffered any

argument that might suggest Plaintiffs have been less than forthright in responding to discovery
requests.
On September 27, 2016, Magistrate Judge Jolson granted Defendants’ motion to stay
discovery with the instructions “[i]f indeed Plaintiffs do have standing, the parties and the Court
will revisit the discovery and dispositive-motion schedule regarding Plaintiffs’ argument on the
merits.” (Doc. 68, Mot. to Stay Ord. at 3). Further, it has been instructed “[i]f Plaintiffs do
prevail on the issue of standing, the parties shall file a joint motion for a status conference in
order to determine the remaining schedule for discovery and for Plaintiffs to file a dispositive

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motion. At that point, discovery and the corresponding dispositive-motion deadline will proceed
swiftly.” (Id. at 4). Accordingly, the Court will defer its ruling on Defendants’ merit-based
arguments as set forth in their respective motions for summary judgment, and the parties are
hereby ORDERED to proceed in accordance with Magistrate Judge Jolson’s September 27
Order.
IV.

CONCLUSION

Based on the foregoing, Defendants’ Motions for Summary Judgment are GRANTED in
part and DENIED in part.
The Clerk shall REMOVE Documents 58 and 70 from the Court’s pending motions list.
IT IS SO ORDERED.
__/s/ George C. Smith
___
GEORGE C. SMITH, JUDGE
UNITED STATES DISTRICT COURT

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