MICHAEL T. LIBURDI, District Judge.
Plaintiff Jeri Christine Villa filed suit against seven defendants, alleging violations of the Fair Housing Act and other claims. Before the Court are three Motions to Dismiss, filed respectively by Defendants Collins Court Apartments ("Collins Court") (Doc. 40), Maricopa Regional Continuum of Care ("MCC") (Doc. 20), and Human Services Campus, Inc. ("HSC") (Doc. 76).
Plaintiff Jeri Christine Villa, pro se, filed the original Complaint on October 17, 2018 (Doc. 1), and the First Amended Complaint on October 22, 2018. (Doc. 9.) The Court granted Plaintiff's request to file a Second Amended Complaint on December 4, 2018. (Doc. 13.)
Plaintiff moved into the Collins Court Apartments in Phoenix, Arizona on December 21, 2012. (Doc. 14 at 5.) The Second Amended Complaint states that Plaintiff was a participant in the "Permanent Supportive Housing (PSH) program under the [Continuum of Care] and funded in part by [the Homeless Emergency Assistance and Rapid Transition to Housing Act of 2009]." (Doc. 14 at 5.) The majority of the Second Amended Complaint describes various conflicts and other issues between Plaintiff and other tenants, and between Plaintiff and the apartment's personnel. It describes, for example, another tenant's physical attack on Plaintiff following a disagreement (Id. at 5); "[c]onstant harassment, ridicule and intimidating behavior" by the same fellow tenant despite grievances that Plaintiff filed to the Property Manager (Id. at 6); a meeting with a "Peer Support Specialist" who subsequently shared Plaintiff's "private medical information and other very personal information" with other residents (Id. at 9); and an unjustified citation for having "excessive trash" in the apartment. (Id. at 10.) The Second Amended Complaint alleges that Plaintiff faced discriminatory treatment. (See id. at 19 ("The neighbor I had so many problems with was given preferential treatment by all members associated with Collins Court Apartments because she was the only Hispanic tenant and 4 of the 5 Complex staff members were also Hispanic.")).
Plaintiff claims that after receiving two 30-day notices and ultimately an eviction notice, she was "physically removed from [her] apartment on November 3, 2016 by the Constable and not allowed to return until 29 days later to remove [her] property from the apartment." (Id. at 16.) Plaintiff spent the next 369 days homeless and "had a very hard time finding housing due to the Property Manager's report of the eviction." (Id.) Plaintiff demands an award of $10,000,000 for "mental anguish, pain and suffering" as well as $1,000,000 "from each Defendant named in this Complaint for violations of my Civil Rights." (Id. at 20.)
Plaintiff named seven defendants in the Second Amended Complaint: Collins Court Apartments; Maricopa Regional Continuum of Care; Arizona Housing, Inc.; Human Services Campus; HOM, Inc.; Dunlap & Magee Property Management, Inc.; and Community Bridges, Inc. Plaintiff states that the defendants are "government entities OR incorporated OR have entered into Partnerships within Maricopa County, AZ AND have entered in to [sic] legal contracts with Maricopa Regional Continuum of Care AND are bound by the laws of the United States of America. They are Applicants AND Recipients OR Recipients OR Sub-recipients of federal grant monies under the Department of Housing and Urban Development (HUD) HEARTH Program and other HUD programs." (Id. at 2.)
Although not entirely clear as to which claims are brought against which defendants, the Second Amended Complaint states that the Court "has jurisdiction in this matter pursuant to TITLE VIII of the Civil Rights Act of 1968 as amended (Fair Housing Act) (FHA) (42 USC 3601); Homeless Emergency Assistance and Rapid Transition to Housing Continuum of Care Program Interim Rule (HEARTH) (24 CFR Part 78), Quid Pro Quo and Hostile Environment Harassment and Liability for Discriminatory Housing Practices Under the Fair Housing Act (QPQHEHLDHP) (24 CFR-100), Health Insurance and Portability and Accountability Act of 1996 (HIPAA), The Fair Credit Reporting Act (15 U.S.C. 1681)[.]" (Id. at 1.)
Defendants Arizona Housing, Inc. and Dunlap & Magee Property Management, Inc. have answered the Second Amended Complaint. (Docs. 36, 108.) Defendant HOM, Inc. was previously dismissed (Doc. 101) after Plaintiff moved the Court to "dismiss all claims against HOM" (Doc. 81 at 1); judgment has not yet entered. Defendants Collins Court, MCC, and HSC have filed the pending Motions to Dismiss. (Docs. 20, 40, 76.) Defendant CBI was previously dismissed (Doc. 91) after Plaintiff failed to respond to CBI's Motion to Dismiss. CBI has filed the pending Motion for Entry of Final Judgment. (Doc. 109.)
To survive a motion to dismiss, a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief" such that the defendant is given "fair notice of what the. . . claim is and the grounds upon which it rests." Bell Atl. Corp. v. Twombly, 550 U.S. 545, 555 (2007) (quoting Fed. R. Civ. P. 8(a)(2); Conley v. Gibson, 355 U.S. 41, 47 (1957)). Dismissal under Rule 12(b)(6) "can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988). The Court must accept Plaintiff's material allegations as true and construe them in the light most favorable to Plaintiff. North Star Int'l v. Arizona Corp. Comm'n, 720 F.2d 578, 580 (9th Cir.1983). A complaint should not be dismissed "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim that would entitle it to relief." Williamson v. Gen. Dynamics Corp., 208 F.3d 1144, 1149 (9th Cir. 2000).
Review of a Rule 12(b)(6) motion is "limited to the content of the complaint." North Star Int'l, 720 F.2d at 581. A district court generally "may not consider any material beyond the pleadings in ruling on a Rule 12(b)(6) motion." Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001) (citation omitted). If "matters outside the pleadings are presented to and not excluded by the court" on a Rule 12(b)(6) motion, "the motion must be treated as one for summary judgment under Rule 56." Fed. R. Civ. P. 12(d). There are two exceptions to this general rule. First, a court may consider "material which is properly submitted as part of the complaint" without converting the motion. Lee, 250 F.3d at 688. The same is true for documents not physically attached to the complaint but whose "authenticity... is not contested" and "the plaintiff's complaint necessarily relies" on them. Id. (citing Parrino v. FHP, Inc., 146 F.3d 699, 705-06 (9th Cir. 1998)). Second, a court may take judicial notice of "matters of public record" without converting the motion to dismiss into a motion for summary judgment. See Lee, 250 F.3d at 689; Fed. R. Evid. 201(b)(2).
A defendant may move to dismiss, pursuant to Rule 12(b)(5), for insufficient service of process under Rule 4. See Fed. R. Civ. P. 12(b)(5). "Before a... court may exercise personal jurisdiction over a defendant, the procedural requirement of service of summons must be satisfied." Strong v. Countrywide Home Loans, Inc., 700 Fed. App'x 664, 667 (9th Cir. 2017) (citing Omni Capital Int'l, Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 104 (1987)). The plaintiff bears the burden of establishing the validity of service on a Rule 12(b)(5) motion. See Brockmeyer v. May, 383 F.3d 798, 801 (9th Cir. 2004).
The Second Amended Complaint names Collins Court, Plaintiff's apartment complex, as a defendant. (Doc. 14.) Although it references various events that occurred at Collins Court the Second Amended Complaint does not specify any claims against it. Collins Court argues that the Second Amended Complaint should be dismissed for three reasons: Collins Court is not a properly named party, service of process was insufficient, and Plaintiff failed to state a claim. (Doc. 40.) The Court will grant the motion with leave to amend.
Collins first moves to dismiss pursuant to Rule 12(b)(6)
In response, Plaintiff asserts that "[t]he defendants know that I am a Pro Se Plaintiff and they made a deliberate and exaggerated effort to conceal who the owner is from me in their MOTION in an attempt to confuse me and by filing numerous, duplicated and nonsensical documents thru [sic] CM/ECF." (Doc. 69 at 3.) The Court notes that this is not accurate; Collins Court has filed only its Motion to Dismiss (Doc. 40) and a motion to seal an exhibit to its Motion to Dismiss (Doc. 64). Nonetheless, in an apparent concession to Collins Court's argument, Plaintiff was ultimately "able to ascertain" that Collins Court is "indeed, owned and operated by Arizona Housing, Inc. (AHI) with the assistance of Dunlap & Magee Property Manage, Inc. as their Agent[.]" (Id.)
As stated, a court must generally convert a Rule 12(b)(6) motion into a motion for summary judgment under Rule 56 if it considers evidence extrinsic to the complaint. Fed. R. Civ. P. 12(d). However, Exhibit 2 to Collins Court's motion is a "matter of public record." See Lee, 250 F.3d at 689. "A district court may properly take judicial notice of public records filed with the Arizona Corporation Commission because such filings are `not subject to reasonable dispute.'" Robinson v. Heritage Elementary Sch., No. CV-09-0541-PHX-LOA, 2009 WL 1578313, at *1 n.3 (D. Ariz. June 3, 2009) (citing Fed. R. Evid. 201(b); Intri-Plex Technologies, Inc. v. Crest Group, Inc., 499 F.3d 1048, 1052 (9th Cir. 2007) (district court may take judicial notice of matters of public record)). The Court notes that Plaintiff did not question or dispute the accuracy of Exhibit 2. Accordingly, the Court takes judicial notice, pursuant to Federal Rule of Evidence 201, that "Collins Court Apartments" is not a corporation or other entity recognized under Arizona law.
Second, Collins Court moves to dismiss pursuant to Rule 12(b)(5) for improper service of process. The motion states that the individual upon whom the summons and complaint were served ("Legal Owner(s) Collins Court Apartments Attn: Alta Garcia — Property Manager") was not authorized to accept service of process pursuant to Rule 4(h). (Id.) The motion attaches Plaintiff's lease agreement, which "identified the person who was authorized to accept service on behalf of that ownership as the `statutory agent for Dunlap & Magee Property Management Co., Inc.'" (Id. at 2, Doc. 40-1 at 2.) The Court need not reach this issue because it has already concluded that Collins Court is dismissed from this case. The Court nonetheless emphasizes the importance of compliance with Rule 4, should Plaintiff file a Third Amended Complaint.
Third, Collins Court moves to dismiss under Rule 12(b)(6) for failure to state a claim. Collins Court argues that Plaintiff "raises no issues suggesting that she was harmed by building's ownership or that there is any factual or legal basis for holding the ownership of that property liable for any harm that she believes she incurred during her tenancy." (Id. at 5.) It also states that the Second Amended Complaint "[d]oes not provide any information about her residence at Collins Court Apartments other than the fact that she was physically housed there for almost four years." (Id.)
Although it need not address this issue, the Court agrees with Collins Court that Plaintiff has failed to state a claim against it. Aside from descriptions of various altercations occurring at the apartment complex, the Second Amended Complaint's references to Collins Court are as follows: "On December 21, 2012 I moved in to Collins Court Apartments as a Participant in the Permanent Supportive Housing (PSH) program" (Doc. 14 at 5); "In an attempt to preserve my mental health, I approached [the] Peer Support Specialist assigned to Collins Court for assistance" (Id. at 8); Plaintiff was advised, in the context of receiving a 30-day notice, that "[she] would face trespassing charges if [she] returned to Collins Court for any reason" (Id. at 11); following Plaintiff's eviction, "[o]n October 17, 2017, I was rejected by an apartment complex who uses the same Attorney for the `Legal matters' as the one that is noted [on] most, if not all the `Notices' given by Collins Court" (Id. at 17); and the statement referenced above that a neighbor was given preferential treatment "by all members associated with Collins Court Apartments" because she was Hispanic. (Id. at 19.) Even construing the facts as favorably for Plaintiff as possible, the Second Amended Complaint does not specify any claims brought against Collins Court. (Doc. 14.) The few specific references to Collins Court do not provide it with "fair notice of what the... claim is and the grounds upon which it rests." Twombly, 550 U.S. at 555. The Court concludes that dismissal of Collins Court is also appropriate for this independent reason.
MCC is a "Continuum of Care" under the federal Homeless Emergency Assistance and Rapid Transition to Housing: Continuum of Care Program, 77 FR 45422-01 (July 31, 2012), which means that it is a "coordinating body for homeless services and homelessness prevention activities across the geographic area." (Doc. 20 at 3); 77 FR 45422-01 at *45426. MCC's Motion to Dismiss argues that the claims against it should be dismissed because they were not timely filed, and because the Second Amended Complaint fails to state a claim under the Fair Housing Act. (Doc. 20 at 2.) The Court will grant the motion with leave to amend.
MCC first argues that Plaintiff's claims against it are untimely because Plaintiff exceeded the two-year statute of limitations for bringing a Fair Housing Act claim. (Doc. 20 at 4.) MCC states that the last date on which the statute of limitations could have begun to run was November 3, 2016—the date Plaintiff states that she was evicted from her apartment. (Id.) However, MCC was not added to the case until the November 19, 2018 lodging of the Second Amended Complaint.
In response, Plaintiff argues that the statute of limitations has not run because the alleged discriminatory practice "continues to this day." (Doc. 51 at 5.) Plaintiff states that she was not permitted to return to the apartment to remove her property until December 2, 2016, and that "almost a year later, after searching for an apartment for weeks and submitting an application to another complex," Plaintiff was turned down due to negative comments on a background check.
As noted, MCC was added as a defendant in this case by the Second Amended Complaint. The Second Amended Complaint's references to MCC are limited to the following: "Maricopa Regional Continuum of Care and Human Services Campus have been named as additional Defendants" (Doc. 14 at 4); a reference to a document called the "Maricopa Regional Continuum of Care Governance Charter Operating Policies (Rev. 3/27/2017)"
The first issue is the date on which the statute of limitations began to run. The statute of limitations for a Fair Housing Act claim is "2 years after the occurrence or the termination of an alleged discriminatory housing practice[.]" See 42 U.S.C. § 3613(a)(1)(A). In considering statute of limitations issues, a court is to "look at when the operative decision occurred" and to "separate from the operative decisions those inevitable consequences that are not separately actionable." RK Ventures, Inc. v. City of Seattle, 307 F.3d 1045, 1058 (9th Cir. 2002) (internal citations and quotations omitted). The Supreme Court has held that where a Fair Housing Act plaintiff challenges not just one incident, but rather a continuing practice, the complaint is timely when it is filed within two years of "the last asserted occurrence of that practice." Havens Realty Corp. v. Coleman, 455 U.S. 363, 380-81 (1982).
Even assuming that Plaintiff is arguing a continuing practice theory of the Fair Housing Act, the Court concludes that, at the latest, the statute of limitations began to run on the date Plaintiff was evicted from her apartment—November 3, 2016. The alleged date on which Plaintiff removed her items from the apartment, and her resulting difficulty in finding another apartment, are more properly characterized as alleged "continual ill effects" than alleged "continual unlawful acts." Garcia, 526 F.3d at 462.
Accordingly, the second issue is whether the Second Amended Complaint "relates back" to the October 17, 2018 Complaint, or the October 22, 2018 Amended Complaint, with respect to MCC. Rule 15(c) of the Federal Rules of Civil Procedure governs when amended pleadings "relate back" to the date of the original pleading. Fed. R. Civ. P. 15(c). When an amended pleading changes a party or a party's name—as the Second Amended Complaint did when adding MCC for the first time—the rule requires that "the party to be brought in by amendment... knew or should have known that the action would been brought against it, but for a mistake concerning the proper party's identity." Fed. R. Civ. P. 15(c)(1)(C)(ii). Rule 15(c) "asks what the prospective defendant knew or should have known during the Rule 4(m) period, not what the plaintiff knew or should have known at the time of filing her original complaint." Krupski v. Costa Crociere S. p. A., 560 U.S. 538, 548 (2010) (emphasis in original). The Complaint and Amended Complaint, both of which made no reference to MCC, did not provide actual or constructive notice to MCC that it would be added to the case. Accordingly, the Court grants MCC's motion with respect to any Fair Housing Act claim brought against it.
The Court notes that the Second Amended Complaint states, "It is for these important reasons that I also name the Maricopa Regional Continuum of Care as a Defendant in this matter and as provided for under the Fair Housing Act,
MCC also argues that Plaintiff failed to state a Fair Housing Act claim against it. (Doc. 20 at 5.) Although the Court need not reach this issue, it agrees with MCC that dismissal is also warranted for this reason. A prima facia case of intentional discrimination under the Fair Housing Act requires a showing that "(1) plaintiff's rights are protected under the Fair Housing Act; and (2) that as a result of defendant's discriminatory conduct, the plaintiff has suffered a distinct and palpable injury." Stiles v. Paragon Realty, No. CV 07-670-TUC-RCC, 2011 WL 13190186, at *4 (D. Ariz. Jan. 20, 2011) (citing Harris v. Itzhaki, 183 F.3d 1043, 1051 (9th Cir. 1999)). Based on the Second Amended Complaint's limited references to MCC, stated above, the Court agrees that Plaintiff has "utterly failed to plead any facts which would give rise to an inference that MCC engaged in any discriminatory practices." (Doc. 20 at 7.)
Further, Plaintiff has not stated a claim for vicarious liability, even if Plaintiff's statement "Where was the Maricopa Regional Continuum of Care? Who knows!" (Doc. 14 at 19) is generously interpreted as such. The Supreme Court has held that "ordinary, not unusual, rules of vicarious liability should apply" to Fair Housing Act claims. Meyer v. Holley, 537 U.S. 280, 289 (2003). "It is well established that traditional vicarious liability rules ordinarily make principals or employers vicariously liable for acts of their agents or employees in the scope of their authority or employment." Id. at 285. Plaintiff does not allege that any such agency or employment relationship exists. Accordingly, Plaintiff has failed to plead both a "cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory" against MCC. Balistreri, 901 F.2d at 699. Dismissal of MCC is appropriate for the independent reason that Plaintiff has failed to state a claim against it.
HSC moves to dismiss on grounds that Plaintiff's claim was untimely and that the Second Amended Complaint fails to state a claim against HSC. The Court will grant the motion with leave to amend.
Like MCC, HSC moves to dismiss Plaintiff's Fair Housing Act claim because it is barred by the two-year statute of limitations. HSC was also added to the case by the November 19, 2018 lodging of the Second Amended Complaint. (Doc. 14.) HSC argues that, based on Plaintiff's November 3, 2016 eviction date, the two-year statute of limitations expired before the Second Amended Complaint was filed. (Doc. 76 at 3.)
In response, Plaintiff states, "there is some sort of `partnership' between HOM, Inc and HSC and between HSC and Arizona Housing, Inc. (AHI)" that Plaintiff did not discover until after the filing of the First Amended Complaint and "until doing more extensive research on the parties named in this matter and their roles in the Permanent Supportive Housing Program I was involved with[.]" (Doc. 89 at 2.) Plaintiff further asserts that each iteration of the Complaint was filed against "Collins Court Apartments,
The Second Amended Complaint references HSC only three times: "Maricopa Regional Continuum of Care and Human Services Campus have been named as additional Defendants" (Doc. 14 at 4); a citation to a publication regarding the Permanent Supportive Housing Program
HSC also argues that Plaintiff has failed to state a claim against it. (Doc. 76 at 6.) Although it need not reach this issue, the Court agrees. The Second Amended Complaint does not specify any claims against HSC. The scant references to HSC in the Second Amended Complaint, referenced above, allege neither a cognizable legal theory nor sufficient facts to support a cognizable legal theory. Balistreri, 901 F.2d at 699. For the independent reason that Plaintiff has not provided "fair notice of what the... claim is," Twombly 550 U.S. at 550, dismissal of HSC is appropriate.
Rule 15(a)(2) of the Federal Rules of Civil Procedure is a liberal standard, stating that "[t]he court should freely give leave [to amend a pleading] when justice so requires." Fed. R. Civ. P. 15(a)(2). In granting a motion to dismiss, a district court should provide leave to amend unless it is clear that the complaint could not be saved by any amendment. Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). The Ninth Circuit has also recognized that a "rule favoring liberality in amendments to pleadings is particularly important for the pro se litigant. Presumably unskilled in the law, the pro se litigant is far more prone to making errors in pleading than the person who benefits from the representation of counsel." Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987).
Exceptions to the general policy of granting leave exist "where the amendment: (1) prejudices the opposing party; (2) is sought in bad faith; (3) produces an undue delay in litigation; or (4) is futile." AmerisourceBergen Corp. v. Dialysist West, Inc., 465 F.3d 946, 951 (9th Cir. 2006). The case has been pending since October 17, 2018 (Doc. 1) and Plaintiff has already amended her complaint twice. The Court is accordingly concerned that further amendment would produce an "undue delay." Nonetheless, in light of the considerations above, the Court will permit Plaintiff to file a Third Amended Complaint. Unless Plaintiff can assert otherwise, however, amendment would be futile in the following respects: Collins Court is not a legal entity and therefore not a proper party to this lawsuit, and the statute of limitations has expired for a Fair Housing Act claim against both MCC and HSC.
Defendant CBI has filed a motion for entry of partial final judgment pursuant to Rule 54(b) of the Federal Rules of Civil Procedure. (Doc. 109.) Rule 54(b) states that when an action presents more than one claim for relief, "the court may direct entry of a final judgment as to one or more, but fewer than all, claims or parties only if the court expressly determines that there is no just reason for delay. Otherwise, any order or other decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does not end the action as to any of the claims or parties and may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties' rights and liabilities." Fed. R. Civ. P. 54(b).
The Court previously dismissed CBI from the case, on grounds that Plaintiff failed to respond to CBI's Motion to Dismiss and that the Health Insurance Portability and Accountability Act does not provide for a private right of action. (Doc. 91.) The pending motion argues that good cause exists to enter final judgment on all claims against CBI, and states in particular that "CBI should not be forced to incur additional attorneys' fees and costs just to be dragged along in a case that Plaintiff never should have filed in the first place." (Doc. 109 at 4.) Plaintiff did not respond to the pending motion.
Under Ninth Circuit case law, "[j]udgments under Rule 54(b) must be reserved for the unusual case in which the costs and risks of multiplying the number of proceedings and of overcrowding the appellate docket are outbalanced by the pressing needs of the litigants for an early and separate judgment as to some claims or parties." Frank Briscoe Co. v. Morrison-Knudsen Co., 776 F.2d 1414, 1416 (9th Cir.1985) (citation omitted). The Court is not convinced that this case is adequately "unusual." Further, "[a] similarity of legal or factual issues will weigh heavily against entry of judgment under the rule, and in such cases a Rule 54(b) order will be proper only where necessary to avoid a harsh and unjust result[.]" Id. Just as Plaintiff asserted a Fair Housing Act claim against CBI, it also asserted a Fair Housing Act claim against most, if not all, of the Defendants in this case. Accordingly, the Court concludes that granting the "Rule 54(b) request does not comport with the interests of sound judicial administration." Wood v. GCC Bend, L.L.C., 422 F.3d 873, 879 (9th Cir.2005); See also Lindsay v. Beneficial Reinsurance Co., 59 F.3d 942, 951 (9th Cir.1995) (warning against "[t]he dangers of profligate Rule 54(b) determinations"). The Court denies CBI's motion to entry of final judgment.
Accordingly,