Balvage et al v. Ryderwood Improvement and Service Association, Inc.

Filing 207

ORDER by Judge Benjamin H Settle granting in part and denying in part 186 Motion for Partial Summary Judgment.(TG)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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RAYMOND T. BALVAGE, et al.,
Plaintiffs,

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v.

RYDERWOOD IMPROVEMENT AND
8 SERVICE ASSOCIATION, INC.,
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CASE NO. C09-5409 BHS
ORDER GRANTING IN PART
AND DENYING IN PART
DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT

Defendant.

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This matter comes before the Court on Defendant Ryderwood Improvement and

12 Service Association’s (“RISA”) motion for summary judgment (Dkt. 186). The Court has
13 considered the pleadings filed in support of and in opposition to the motion and the
14 remainder of the file and hereby grants in part and denies in part the motion for the
15 reasons stated herein.
I. PROCEDURAL HISTORY

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On November 2, 2012, Plaintiffs filed their third amended complaint against RISA

18 asserting three claims for relief, including that RISA committed acts in violation of 42
19 U.S.C. § 3617. Dkt. 169 ¶¶ 78–83 (“Retaliation claim”).
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On April 18, 2013, RISA filed a motion for summary judgment on Plaintiffs’

21 Retaliation claim. Dkt. 186. On May 6, 2013, Plaintiffs responded. Dkt. 197. On May
22 10, 2013, RISA replied. Dkt. 202.

ORDER - 1

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II. FACTUAL BACKGROUND
Ryderwood is an area in Cowlitz County, Washington, that currently consists of

3 approximately 270 single family homes. Dkt. 16, Exh. A at 10. In 1953, Senior Estates,
4 Inc. platted this area as “Ryderwood No. 1.” Dkt. 24, Exh. A. The Ryderwood
5 properties were devised by deeds and were subject to identical covenants and restrictions.
6 See id., Exhs. A and B.
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In July of 1953, RISA was incorporated. Dkt. 24, Exh. C. In 1975, RISA

8 amended its bylaws and recorded them at the office of the County Recorder of Cowlitz
9 County. Id., Exh. D. The revised bylaws stated that:
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The qualifications for ownership or purchase of a home within
[Ryderwood] are:
Must be a bona-fide recipient of an annuity or a pension,
Must not be less than fifty-five years of age,
Must have no additional, permanent occupants of the home (other
than the spouse) who do not meet the above requirements.

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Id., Exh. D. at 1.
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Apparently, in 2008, some residents, including some Plaintiffs, resigned from
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RISA. This resignation eventually led to the filing of this lawsuit in June 2009. Plaintiffs
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allege that RISA has performed numerous acts of retaliation against Plaintiffs for
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exercising their rights under the Fair Housing Act. The alleged acts of retaliation range
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from threats to have individuals arrested for using “members only” areas of the
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community to instituting foreclosure actions against a named plaintiff’s home. RISA has
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submitted a chart summarizing these allegations. See Dkt. 188, Declaration of Alicia B.
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Pierce (“Pierce Dec.”), ¶¶ 8–12.
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ORDER - 2

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III. DISCUSSION

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RISA moves for the entry of judgment on Plaintiffs’ Retaliation claim. Dkt. 186.

3 Plaintiffs counter that there are numerous issues of fact that necessitate a trial. Dkt. 197.
4 Neither Plaintiffs nor RISA attempted to address each specific alleged act, and the Court
5 will not engage in that kind of detailed analysis. Instead, the Court is hopeful that the
6 following discussion and order will set parameters for what acts may go to trial after
7 subsequent proceedings.
8 A.

Summary Judgment Standard

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Summary judgment is proper only if the pleadings, the discovery and disclosure

10 materials on file, and any affidavits show that there is no genuine issue as to any material
11 fact and that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c).
12 The moving party is entitled to judgment as a matter of law when the nonmoving party
13 fails to make a sufficient showing on an essential element of a claim in the case on which
14 the nonmoving party has the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317,
15 323 (1986). There is no genuine issue of fact for trial where the record, taken as a whole,
16 could not lead a rational trier of fact to find for the nonmoving party. Matsushita Elec.
17 Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (nonmoving party must
18 present specific, significant probative evidence, not simply “some metaphysical doubt”).
19 See also Fed. R. Civ. P. 56(e). Conversely, a genuine dispute over a material fact exists
20 if there is sufficient evidence supporting the claimed factual dispute, requiring a judge or
21 jury to resolve the differing versions of the truth. Anderson v. Liberty Lobby, Inc., 477
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ORDER - 3

1 U.S. 242, 253 (1986); T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d
2 626, 630 (9th Cir. 1987).
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The determination of the existence of a material fact is often a close question. The

4 Court must consider the substantive evidentiary burden that the nonmoving party must
5 meet at trial – e.g., a preponderance of the evidence in most civil cases. Anderson, 477
6 U.S. at 254; T.W. Elec. Serv., Inc., 809 F.2d at 630. The Court must resolve any factual
7 issues of controversy in favor of the nonmoving party only when the facts specifically
8 attested by that party contradict facts specifically attested by the moving party. The
9 nonmoving party may not merely state that it will discredit the moving party’s evidence
10 at trial, in the hopes that evidence can be developed at trial to support the claim. T.W.
11 Elec. Serv., Inc., 809 F.2d at 630 (relying on Anderson, 477 U.S. at 255). Conclusory,
12 nonspecific statements in affidavits are not sufficient, and missing facts will not be
13 presumed. Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888-89 (1990).
14 B.

Retaliation

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The FHA protects individuals from certain types of retaliatory conduct.

16 Specifically, the FHA provides that it is
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unlawful to coerce, intimidate, threaten, or interfere with any person in the
exercise or enjoyment of, or on account of his having exercised or enjoyed,
or on account of his having aided or encouraged any other person in the
exercise or enjoyment of, any right granted or protected by [the Act].

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42 U.S.C. § 3617. The U.S. Department of Housing and Urban Development (“HUD”)
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has identified five non-exclusive examples of the type of conduct prohibited under §
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3617:
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ORDER - 4

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(1) Coercing a person, either orally, in writing, or by other means, to
deny or limit the benefits provided that person in connection with the sale
or rental of a dwelling or in connection with a residential real estate-related
transaction because of race, color, religion, sex, handicap, familial status, or
national origin.
(2) Threatening, intimidating or interfering with persons in their
enjoyment of a dwelling because of the race, color, religion, sex, handicap,
familial status, or national origin of such persons, or of visitors or
associates of such persons.

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(3) Threatening an employee or agent with dismissal or an adverse
employment action, or taking such adverse employment action, for any
effort to assist a person seeking access to the sale or rental of a dwelling or
seeking access to any residential real estate-related transaction, because of
the race, color, religion, sex, handicap, familial status, or national origin of
that person or of any person associated with that person.
(4) Intimidating or threatening any person because that person is
engaging in activities designed to make other persons aware of, or
encouraging such other persons to exercise, rights granted or protected by
this part.

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(5) Retaliating against any person because that person has made a
complaint, testified, assisted, or participated in any manner in a proceeding
under the Fair Housing Act.

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24 CFR § 100.400(c).
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To present a prima facie claim for retaliation, plaintiffs must show (1) protected
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activity, (2) adverse action by defendant against plaintiffs, and (3) a causal link between
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the activity and the adverse action. See, e.g., Walker v. City of Lakewood, 272 F.3d 1114,
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1128 (9th Cir. 2001). If plaintiffs meet their burden, then the burden shifts to defendant
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to show a legitimate non-retaliatory reason for the allegedly adverse action. Id. If the
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defendant meets its burden of production, the burden of persuasion shifts back to the
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plaintiff to show that the defendant’s proffered reason is not worthy of credence or that
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ORDER - 5

1 the reason is mere pretext for a retaliatory action. Id.; see also Reeves v. Sanderson
2 Plumbing Prods., Inc., 530 U.S. 133, 143 (2000).
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Upon review of the briefs and accompanying material, it is clear that this motion is

4 more about the scope of alleged conduct that could be considered retaliatory. For
5 example, Plaintiffs allege that
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RISA acted wrongfully and unlawfully by taking actions, by causing or
allowing others to take actions, and/or in not preventing or dissuading
others from taking actions to retaliate against Plaintiffs and to otherwise
take actions which were or are in violation of 42 U.S.C. § 3617.

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Dkt. 169, ¶ 79. According to Plaintiffs’ discovery responses, this includes acts
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committed by
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(i) residents of Ryderwood; (ii) third-parties, such as the community pastor,
the garbage collector, and postal employees; and (iii) unidentified persons,
such as the Balvage Plaintiffs’ claim that “[u]nknown members/owner of
RISA interfere[d] with our quiet enjoyment of property and intimidate[d] us
as they r[o]de past us on their bicycles.

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Pierce Dec., ¶¶ 8–12. While such experiences may be unpleasant, ill will among
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neighbors and adverse experiences with third parties are not actionable as retaliation for
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filing an FHA complaint. Plaintiffs fail to recognize this as they have even alleged acts
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that preceded the filing of the FHA complaint, which is the protected activity in question.
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The Court’s analysis covers four categories of actions, and the Court grants summary
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judgment on some of these actions. The Court denies summary judgment on some types
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of actions and sets parameters for the types of alleged acts that may proceed to trial.
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ORDER - 6

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With regard to timing, RISA contends that any alleged action that occurred prior

Timing

3 to the filing of the complaint is not cognizable. Dkt. 186 at 18–19. For example, some
4 Plaintiffs allege that RISA retaliated against them by posting their names on a list of
5 Ryderwood residents that sent letters of resignation to RISA. Pierce Dec., ¶ 11. The list
6 is dated March 3, 2008. Dkt. 190, Declaration of Richard Ross (“Ross Dec.”), Exh. C.
7 Plaintiffs fail to respond to RISA’s contention or explain how this act could possibly be
8 retaliatory for a complaint that was filed sixteen months later; there can be no retaliation
9 for a protected act that has not occurred. See 24 CFR § 100.400(c)(5). Therefore, the
10 Court grants RISA’s motion as to any act that occurred before any named plaintiff
11 engaged in a protective activity.
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It is important to note that there were only four named plaintiffs in the original

13 complaint filed July 7, 2009. See Dkt. 1. Although these named plaintiffs were alleged
14 class representatives, the class was never certified and no other plaintiffs engaged in a
15 protective activity at that time. The remainder of the current named plaintiffs engaged in
16 a protected activity on April 28, 2010, when they filed a motion to amend the complaint.
17 Accordingly, different dates apply to different individuals.
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The practical effect of this finding is that the majority of specific alleged adverse

19 acts do not support a claim for retaliation. For example, Plaintiff Sharon Marie Banta
20 responded to discovery requests listing 23 alleged acts of retaliation, only two of which
21 are dated after she joined the lawsuit as a named plaintiff. Pierce Dec., Exh. 5. Although
22 some events are undated, the alleged adverse actions were directed at non-RISA members

ORDER - 7

1 in general and will be discussed in a separate section of this order. However, with regard
2 to the dated acts, RISA is entitled to judgment that, even if true, Ms. Banta could not
3 possibly win relief.
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2.

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RISA argues that it is not liable for the actions of non-member, third parties. Dkt.

Third Parties

6 186 at 12–14. For example, Plaintiffs Bob and Diana White (“Whites”) claim that RISA
7 is retaliating against them by foreclosing on their home. Pierce Dec., ¶ 10. Based on the
8 information submitted by RISA, this is a complete misrepresentation of the foreclosure.
9 RISA submitted a complaint for foreclosure in state court alleging that an entity named
10 SWIFFT is foreclosing on the Whites’ home. Ross Dec., Exh. D. RISA contends, and
11 Plaintiffs do not dispute, that SWIFFT is the group formed by Plaintiffs to equally share
12 the cost of litigation. Dkt. 186 at 13. The Court finds it abundantly clear that the
13 foreclosure is not an adverse action by RISA.
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Additionally, some Plaintiffs allege that RISA influenced the relief postmaster and

15 garbage collector to stop service at resigning members’ houses. For example, Alfred and
16 Gloria Leach declare that “Jeff Cummins, owner/operator of Community Waste &
17 Recycling, did threaten us by sending a letter stating, ‘I am no longer allowed to pick up
18 any can/cans of any household that is not a member of RISA.’” Pierce Dec., ¶ 10, No.
19 69. Even if this could be considered an adverse act of interference by RISA, Plaintiffs
20 have failed to establish a causal relationship between the act and themselves because the
21 refusal of service was directed at all members that have resigned from RISA, not as to
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ORDER - 8

1 members that filed the complaint. Therefore, the Court grants RISA’s motion on this and
2 similar alleged acts of retaliation.
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3.

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RISA contends that it is not responsible for alleged acts taken by members of the

Acts by Owner/Members

5 association. Dkt. 186 at 12–15. Plaintiffs counter that they “have alleged such a
6 pervasive and ongoing pattern of retaliatory conduct that defendant is deemed to be
7 responsible for it.” Dkt. 197 at 5 (citing Halprin v. The Prairie Single Family Homes of
8 Dearborn Park Association, 388 F.3d 327, 330 (7th Cir. 2004), and Bloch v. Frischholz,
9 587 F.3d 771 (7th Cir. 2009)). These cases are easily distinguishable and far from
10 persuasive. Halprin was not a retaliation case; it dealt with numerous members of an
11 association conspiring to intimidate and threaten another member of the association based
12 on the victim’s religious beliefs. 388 F.3d at 328. Similarly, Bloch involved acts of
13 intentional discrimination based on an individual’s religion. 587 F.3d 771. Therefore,
14 the Court declines to adopt Plaintiffs’ proposition.
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Next, Plaintiffs argue that RISA may be held liable for its members’ actions

16 because of its “independent failure to act so as to halt the ongoing retaliatory conduct
17 against plaintiffs.” Dkt. 197 at 5 (citing Neudecker v. Boisclair Corp., 351 F.3d 361, 365
18 (8th Cir. 2003)). In Neudecker, the plaintiff “repeatedly complained to Boisclair
19 management about the harassment to no avail . . . .” Id. at 365. In this case, there is no
20 evidence that any Plaintiff repeatedly complained to RISA or requested that RISA halt
21 the ongoing retaliatory conduct. Therefore, the Court grants RISA’s motion as to any
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ORDER - 9

1 “failure to act” claim for retaliation absent a showing that the particular victim put RISA
2 on notice of retaliatory conduct by RISA members.
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Plaintiffs also argue that, under the doctrine of respondeat superior, RISA is liable

4 for the acts of its agents, which includes its members. Plaintiffs, however, fail to show
5 that RISA directed its members to harass, intimidate, or threaten any named plaintiff.
6 Plaintiffs also fail to show that any alleged act was done for the benefit of RISA.
7 Therefore, the Court grants RISA’s motion as to any act advanced under the theory of
8 respondeat superior.
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With regard to the remainder of Plaintiffs’ alleged adverse actions by RISA

10 members, they contend that
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[g]enuine issues of material fact remain regarding the scope and extent of
the pattern of retaliatory conduct, defendant’s knowledge of the adverse
actions taken against plaintiffs, and defendant’s responsibility for failing to
act to stop the retaliatory actions.

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Dkt. 197 at 5. Conclusory, nonspecific statements in affidavits are not sufficient, and
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missing facts will not be presumed. Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888-89
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(1990). Although the Court recognizes that the alleged adverse acts are too numerous to
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fully address each one in this round of briefing, it is not the Court’s task “to scour the
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record in search of a genuine issue of triable fact. We rely on the nonmoving party to
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identify with reasonable particularity the evidence that precludes summary judgment.”
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Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996). Having stated that, the Court is
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unable to completely close the door on the possibility that RISA could be held
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responsible for specific acts of RISA members. The Court will rely on the experienced
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ORDER - 10

1 attorneys to narrow the number of alleged acts to those that fit within the narrow scope of
2 failing to act. The Court may also require an offer of proof before any evidence is
3 admitted on this issue at trial. Therefore, the Court grants RISA’s motion with the
4 exception of any failing to act claims.
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4.

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According to RISA’s bylaws, RISA is a corporation that acts through its board of

Acts by Board Members

7 trustees and officers. Ross Dec., Exh. B. Plaintiffs allege numerous act of retaliation by
8 the trustees and officers, both in their official capacity (Pierce Dec, ¶ 8) and in their
9 personal capacity (id. ¶ 9). RISA contends that Plaintiffs have failed to show a prima
10 facie case of retaliation and, even if Plaintiffs met their burden, RISA has legitimate non11 retaliatory reasons for its actions. Dkt. 186 at 23. It is undisputed that RISA acted
12 adversely toward some of Plaintiffs on some occasions. For example, RISA excluded
13 non-paying members from members’ areas and services. RISA also filed liens against
14 the homes of the non-paying members. The issues, however, are whether Plaintiffs can
15 show a causal link between these actions and this lawsuit and whether RISA’s reasons for
16 acting were legitimately non-retaliatory. With regard to the former issue, the Court finds
17 that most, if not all, of RISA’s alleged actions were directed at non-paying members in
18 general and not toward the select group of non-paying members that are involved in this
19 lawsuit. Although the Court declines at this time to apply this reasoning to each specific
20 alleged act, the Court will conclude that, in order to proceed to trial, Plaintiffs must show
21 that they were treated differently than the other non-paying members in connection with
22 the collection of dues.

ORDER - 11

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With regard to RISA’s legitimate reasons, the Court finds that RISA enforcing its

2 bylaws is a legitimate reason for any such action. The Court also finds that limiting a
3 common area and a common service to paying members is a legitimate reason for such
4 action. Although the Court declines to apply this reasoning to each specific alleged act,
5 the Court concludes that Plaintiffs must make an offer of proof as to pretext before any
6 relevant evidence will be admitted at trial.
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Finally, Plaintiffs have alleged adverse actions by board members and officers

8 while acting in their personal capacity. “[W]e do not want, and we do not think Congress
9 wanted, to convert every quarrel among neighbors in which a racial or religious slur is
10 hurled into a federal case.” Halprin v. Prairie Single Family Homes of Dearborn Park
11 Ass’n, 388 F.3d 327, 330 (7th Cir. 2004). This is even more true for alleged acts of
12 intimidation at depositions or alleged acts of swerving a car toward an individual. Pierce
13 Dec., ¶ 9. Therefore, the Court grants RISA’s motion for summary judgment on the five
14 alleged acts by board members acting in their personal capacity.
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IV. ORDER
Therefore, it is hereby ORDERED that RISA’s motion for summary judgment

17 (Dkt. 186) is GRANTED in part and DENIED in part as stated herein.
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Dated this 28th day of May, 2011.

A

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BENJAMIN H. SETTLE
United States District Judge

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ORDER - 12