United States District Court, D. Maryland
PAUL C. CLARK, et. al
100 HARBORVIEW DRIVE COUNCIL OF UNIT OWNERS d/b/a 100 HARBORVIEW CONDOMINIUM ASSOCIATION, et. al
J. FREDERICK MOTZ UNITED STATES DISTRICT JUDGE
Plaintiffs Paul C. Clark, Rebecca Delorme, and Paul C. Clark, Jr. bring suit against defendants 100 Harborview Drive Council of Unit Owners (“Harborview”), Zalco Realty, and John H. Cochran seeking damages, declaratory relief, and injunctive relief for violations of the Fair Housing Act (“FHA”), 42 U.S.C. §§ 3601 et seq. Now pending is defendant John H. Cochran’s motion for summary judgment. The parties have fully briefed the motion for summary judgment, and no oral argument is necessary. See Local Rule 105.6. For the reasons below, the motion for summary judgment is granted.
This is the latest-filed action in a quintet of cases, and numerous administrative actions relating to a series of disputes between plaintiffs, who purchased a penthouse condominium in the Harborview Towers, and defendants, who manage or managed Harborview. The genesis of what one court has described as a “multiplex of administrative and trial court actions and appeals, ” 100 Harborview Drive Condo. Council of Unit Owners v. Clark, 119 A.3d 87, 93 (Md.App. 2015), is November 2009, when plaintiffs Paul Clark and Rebecca Delorme, along with their 5-year-old, Paul Clark, Jr., moved into their Harborview condominium. Shortly after the move, the Harborview Council of Unit Owners, of which defendant Cochran was a member, started receiving complaints regarding noise from the plaintiffs’ condominium unit from their downstairs neighbors, the Flynns. (See, e.g., ECF No. 67, Ex. 4). Harborview attempted to resolve the complaints by dispatching its general manager, Gisele Rivera, to make phone calls asking plaintiffs to reduce their noise. (ECF No. 44, Ex. C, p. 2). Despite Rivera’s efforts, Flynn’s complaints to Harborview continued,  and after some internal deliberation amongst the Council,  on January 19, 2010, Harborview issued a cease and desist letter alleging that Clark Jr.’s “running, jumping, yelling, pounding on the floor, screaming and crying” violated sections of Harborview’s bylaws prohibiting nuisances and excessive noise. (ECF No. 67, Ex. 12). The letter formally demanded plaintiffs cease and desist making noise “which violates the Council’s governing documents and that [causes] a nuisance and inter[ference] with the Flynns’ right to quiet and peaceful enjoyment of their home.” Id.
Plaintiffs responded almost immediately by filing a complaint with the U.S. Department of Housing and Urban Development (“HUD”) alleging that by issuing the cease and desist letter, Harborview had discriminated against them on the basis of their familial status. (ECF No. 1, ¶ 28). HUD referred the complaint to the Maryland Commission on Human Relations, which, later that year in August, made a finding of no probable cause. (ECF No. 44, Ex. C., p. 6-7).
Approximately three months after plaintiffs filed their HUD complaint, and shortly after Cochran was promoted from Council Secretary to Council President, Harborview began including a “Litigation Update” section in Tower Topics, Harborview’s monthly newsletter, which was distributed to residents, realtors, and real estate brokers, and posted on Harborview’s website. (See ECF No. 67, Ex. 15, pp. 2-3). The Litigation Update section included descriptions of cases, the status of insurance coverage for those cases, and the disposition of cases. See id; (see also ECF No. 67, Ex. 14, p. 2).
While the first HUD action was ongoing, plaintiffs discovered mold in their unit. This discovery led them to hire a mold testing service and after that service determined the air quality in the unit was at a dangerous level, plaintiffs moved out of their home and into a unit at a neighboring condominium building. (See ECF No. 44, Ex. E, p. 6). At the same time, defendants Zalco and Harborview contracted with a mold remediation company to begin mitigation and remediation work in the condominium. See Id. Harborview and Zalco also contracted with two companies to fix the structural problems causing the mold. See Id. at 8. Plaintiffs, however, grew unsatisfied with the quality of the work done, and padlocked their unit, preventing the mold remediation company from completing their work. See Id. at 8. Since then, plaintiffs have restricted access to the unit to times when they are available to unlock it. See Id. at 8-9.
In May 2011, while Delorme and Clark Jr., still living in a rental unit, were visiting friends at Harborview, Harborview staff reported seeing Clark Jr. in the swimming pool when the pool was closed in violation of Harborview’s bylaws. Id. at 7. As a result, Harborview sent Delorme a letter demanding she cease and desist using the pool when it was closed. (See ECF No. 44, Ex. M).
Further displeased, plaintiffs filed another HUD complaint against defendants in September 2011. In that complaint, Clark and Delorme alleged that defendants Zalco and Harborview “discriminated against them based on their familial status, made discriminatory statements, and retaliated against them for exercising their fair housing rights.” (ECF No. 44, Ex. E, p. 3). Specifically, Clark and Delorme alleged that: (1) defendants failed to fix leaks and remediate mold in their unit; (2) defendants issued a cease and desist letter falsely accusing them of allowing Clark Jr. to swim in the Harborview pool when it was closed; (3) defendants retaliated against them by “posting public notifications and updates regarding” their complaints; (4) defendants tracked their “comings and goings;” and (5) defendants issued an erroenous lien notice as retaliation for plaintiffs’ exercise of their FHA rights. (ECF No. 44, Ex. E, p. 1). HUD found that for each allegation, there was no reasonable cause to believe defendants retaliated or discriminated against plaintiffs, and dismissed the complaint. (ECF No. 44, Ex. E, p. 1).
Not to be deterred, from January 2013 to March 2014, plaintiff Clark filed another three lawsuits against Harborview in Baltimore City Circuit Court. In the first, Clark sought information from Harborview regarding his claims, Harborview’s financial status, and the billing statements of Harborview’s lawyers. After review by the Maryland Court of Special Appeals, only one of Clark’s demands was granted-Clark gained access “to inspect and copy legal invoices and billing records concerning Dr. Clark, his family, and [his condominium].” 100 Harborview Drive Condo. Council of Unit Owners v. Clark, 119 A.3d 87, 93 (Md.App. 2015). In Clark’s second complaint, Clark asserted claims for breach of contract, negligence, specific performance, and breach of fiduciary duty against Harborview, and filed a petition for an order of arbitration and stay of action. The Baltimore City Circuit Court granted his petition, and the Maryland Court of Special Appeals affirmed the decision. See Id. at 95. In Clark’s third complaint, he sought a temporary restraining order and injunctive relief allowing him to send his lawyers to Harborview board and committee meetings. The Baltimore City Circuit Court ruled in favor of Harborview at the summary judgment stage. (ECF No. 44, Ex. F).
On October 3, 2014, Clark filed a complaint, his fifth total, in this Court against defendants Harborview, Zalco, and Cochran alleging unlawful discrimination and retaliation under the FHA. Currently pending is defendant Cochran’s motion for summary judgment. (ECF No. 44).
Under Federal Rule of Civil Procedure 56(c), a court must grant summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” See also Anderson v. Liberty Lobby Inc., 477 U.S. 242, 247 (1986). A genuine issue of material fact exists where “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. The party seeking summary judgment bears the initial burden of demonstrating the absence of a genuine dispute of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Accordingly, when reviewing a motion for summary judgment, the court must look at facts and inferences in the light most favorable to the non-moving party. Scott v. Harris, 550 U.S. 372, 378 (2007).
While the moving party bears the initial burden of demonstrating the absence of a genuine dispute of material fact, trial courts have an obligation to prevent “factually unsupported claims and defenses from proceeding to trial.” Felty v. Graves-Humphreys Co., 818 F.2d 1126, 1128 (4th Cir. 1987) (citing Celotex, 477 U.S. at 323-24). Therefore, in response to a properly supported motion for summary judgment, the non-moving party must, by affidavit or other evidentiary showing, set out specific facts showing a genuine issue for trial. Anderson, 477 U.S. at 248-49; see also Adickes v. S. H. Kress & Co., 398 U.S. 144, 160 (1970). A court should also enter summary judgment when a party fails to make a showing sufficient to establish elements essential to a party’s case, and on which the party will bear the burden of proof at trial. Celotex Corp., 477 U.S. at 322.
Plaintiffs assert two FHA claims against defendant Cochran: first that Cochran discriminated against them on the basis of race and familial status; and second, that Cochran retaliated against them for exercising protected FHA rights. I consider each claim in turn.
I.FHA Disparate-Treatment Discrimination Claim
Plaintiffs allege that Cochran impermissibly discriminated against them by issuing two cease and desist letters-one demanding a reduction in noise, and another demanding plaintiffs not use the Harborview pool when it was closed-and by failing to repair and remediate the defects in Harborview’s common elements causing mold and other damage to plaintiffs’ condominium. For his part, Cochran contends that plaintiffs have not identified a genuine dispute of material fact showing that he acted with discriminatory animus, and that he was not responsible for any of plaintiffs’ alleged harms. Additionally, as to plaintiffs’ last claim- Cochran’s alleged failure to remediate-Cochran argues that it is barred by res judicata. I agree with Cochran and grant summary judgment with respect to Count I of plaintiffs’ complaint.
i. Legal Standard
The FHA prohibits property owners from “mak[ing] unavailable or deny[ing], a dwelling to any person because of race, color, religion, sex, familial status, or national origin.” 42 U.S.C. § 3604(a). Likewise, the FHA prohibits discrimination “against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of race, color, religion, sex, familial status, or national origin.” 42 U.S.C. § 3604(b). To establish an FHA disparate-treatment discrimination claim like the one plaintiffs advance here, a “plaintiff must establish that the defendant had a discriminatory intent or motive.” Texas Dep’t of Hous. & Cmty. Affairs v. Inclusive Communities Project, Inc., 135 S.Ct. 2507, 2513 (2015) (internal quotation marks omitted). A plaintiff may proffer either direct or indirect evidence of discriminatory intent, or make a showing of discrimination through the inferential McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) burden-shifting framework. See Martin v. Brondum, 535 F. App’x 242, 244 (4th Cir. 2013).
Direct or indirect evidence of discriminatory intent includes “conduct or statements that both (1) reflect directly the alleged discriminatory attitude, and (2) bear directly on the contested . . . decision.” Laing v. Fed. Exp. Corp., 703 F.3d 713, 717 (4th Cir. 2013) (internal quotation marks omitted). Put another way, direct or indirect evidence “is evidence showing a specific link between the alleged discriminatory animus and the challenged decision, sufficient to support a finding by a reasonable fact finder that an illegitimate criterion actually motivated the adverse employment action.” Gallagher v. Magner, 619 F.3d 823, 831 (8th Cir. 2010) (internal quotation marks omitted).
If plaintiffs cannot cite direct or indirect evidence of discriminatory intent, they may then rely on the three-part McDonnell Douglas burden-shifting framework, wherein plaintiffs must first proffer a prima facie case of discrimination; if plaintiffs are successful, the burden of production shifts to defendants, who must proffer a legitimate, non-discriminatory rationale for their action. See Antonio v. Sec. Servs. of Am., LLC, 701 F.Supp.2d 749, 781 (D. Md. 2010). Finally, after that rationale is proffered, the burden shifts again to plaintiffs who must prove by a preponderance of evidence that the defendants’ rationale is merely pretext for discrimination. See id.
ii. January 19, 2010 Cease and Desist Letter
Plaintiffs allege that Cochran, who is white, and a grandparent, discriminated against them on the basis of race and familial status by participating in the issuance of the January 19, 2010 letter demanding plaintiffs cease and desist making “excessive noise.” (ECF No. 44, Ex. K). Plaintiffs, however, have not ...