RONALD E. BUSH, Magistrate Judge.
Now pending before the Court are the following seven motions: (1) Defendants' Motion for Summary Judgment (Docket No. 54); (2) Plaintiffs' Motion to Strike Affidavits of Jack Haase, Daniel Feldman, Thomas Grohmann, Howard Banchik, Ken Downie, Eileen Juddell, and Dave Town (Docket No. 56); (3) Plaintiffs' Motion for Partial Summary Judgment (Docket No. 58); (4) Plaintiffs' Motion to Dismiss and/or Motion to Strike Defendants' Counterclaim (Docket No. 60); (5) Defendants' Motion to Amend Answer to Include Verified Counterclaim (Docket No. 68); (6) Plaintiffs' Second Motion to Strike (Docket No. 73); and (7) Defendants' Motion to Strike the Affidavit of Marilyn Morgan (Docket No. 75).
After careful consideration of the record and oral argument of counsel, the Court is fully advised and enters the following Report and Recommendation and Memorandum Decision and Order:
Plaintiffs Bernard and Marilyn Morgan are long-time owners of a condominium residence in Sun Valley, Idaho. They allege to suffer from disabilities requiring that their home have cool, filtered air in a climate-controlled environment, and because of such disabilities, they installed an outside, refrigerated air conditioning unit on August 21, 2013 to regulate the temperature within their condominium residence. Doing so, however, violated the covenants, conditions, and restrictions ("CCRs") of the condominium development, which required that "[n]o . . . installation of air conditioning or other machines shall be installed on the exterior of the building or be allowed to protrude through the walls, the windows, or the roof of the building, unless the prior written approval of the Board of Directors [of the homeowners' association ("HOA")] is secured."
According to Plaintiffs, they had no choice but to install the air conditioning unit because Defendants refused to consider their repeated requests to address their medical issues and needs. Defendants disagree, and argue the Plaintiffs' alleged disabilities, even if accepted to exist, did not require the installation of an air conditioning unit of the sort selected by Plaintiffs. In any event, due to the air conditioning unit's installation, Defendants assessed (or at least threatened to assess) fines against Plaintiffs for violating the CCRs and, later, recorded a lien upon their condominium.
This ongoing contretemps ultimately led to the filing of Plaintiffs' Amended Verified Complaint, which asserts six claims — three claims premised upon provisions of the federal Fair Housing Act ("FHA"), alongside a claim for negligence, a claim for breach of the covenant of good faith and fair dealing, and a claim for negligent and/or intentional infliction of emotional distress. Defendants seek to have the case dismissed through their Motion for Summary Judgment, which contains arguments that Plaintiffs have no claim under the FHA and, by extension, no support as a matter of law for their related state law claims. Specifically, Defendants contend (1) that Plaintiffs have never been denied an FHA required "accommodation" involving cool, filtered air; (2) that the as-installed air conditioning unit (outside refrigerated) is not "necessary" to provide the requested accommodation, and relatedly that the HOA-approved air conditioning systems (water-cooled and inside room-based) are reasonable options for providing the allegedly necessary accommodation; and (4) that Plaintiffs cannot prove they actually suffer from a "handicap" entitling them to an accommodation as to such concerns in any event.
In opposition, and in support of their own Motion for Partial Summary Judgment, Plaintiffs reject in toto Defendants' arguments, responding (1) that they are handicapped and that Defendants were aware of this fact; (2) that their request for an accommodation was reasonable and necessary to allow an equal opportunity to use and enjoy their home; and (3) that Defendants refused their requested accommodation in violation of the FHA.
Summary judgment is properly granted when no genuine and disputed issues of material fact remain, and when, viewing the evidence in a light most favorable to the non-moving party, the movant is clearly entitled to prevail as a matter of law. See Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The moving party bears the burden of showing that there is no material factual dispute, and the court must draw all reasonable inferences in favor of the party against whom summary judgment is sought. See Celotex, 477 U.S. at 324. Material facts which would preclude summary judgment are those which may affect the outcome of the case. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The relevant substantive law will determine which facts are material for purposes of summary judgment. See id.
Where, as here, both parties move for summary judgment, the summary judgment standard does not change, and the court must evaluate each party's motion on the merits. See, e.g., Farm Bureau Ins. Co. of Idaho v. Kinsey, 234 P.3d 739, 742 (Idaho 2010) (citation omitted); see also Nolan v. Heald College, 551 F.3d 1148, 1154 (9
Where the moving party instead bears the burden of proof on an issue at trial, "it must, in order to discharge its burden of showing that no genuine issue of material fact remains, make a prima facie showing in support of its position on that issue. That is, the moving party must present evidence that, if uncontroverted at trial, would entitle it to prevail on that issue. Once it has done so, the non-moving party must set forth specific facts controverting the moving party's prima facie case." Sabatino v. Liberty Life Assur. Co. of Boston, 286 F.Supp.2d 1222, 1229 (N.D. Cal. 2003) (citing UA Local 343 v. Nor-Cal Plumbing, Inc., 48 F.3d 1465, 1471 (9
Section 3604 of the FHA deals with discrimination in the sale or rental of housing, and section 3604(f) deals with discrimination against people with handicaps in particular. In pertinent part, "discrimination" includes:
42 U.S.C. § 3604(f)(3)(A) & (B). Therefore, the FHA "imposes an affirmative duty upon landlords reasonably to accommodate the needs of handicapped persons," as to both physical accommodations and administrative policies/rules governing a dwelling and its environs. United States v. California Mobile Home Park Mgmt. Co., 29 F.3d 1413, 1416 (9
With this statutory backdrop in mind, to make out a discrimination claim under the FHA for failure to reasonably accommodate, Plaintiffs must demonstrate that (1) they suffer from a handicap as defined by the FHA; (2) Defendants knew or reasonably should have known of the Plaintiffs' handicap; (3) an accommodation of the handicap may be necessary to afford Plaintiffs an equal opportunity to use and enjoy their dwelling; (4) the accommodation is reasonable; and (5) Defendants refused to make the requested accommodation. See Hayden Lake Recreational Water and Sewer Dist. v. Haydenview Cottage, LLC, 835 F.Supp.2d 965, 981 (D. Idaho 2011) (citing DuBois v. Assoc. of Apartment Owners of 2987 Kalakaua, 453 F.3d 1175, 1179 (9
The FHA defines "handicap" as "a physical or mental impairment which substantially limits one or more of such person's major life activities, a record of having such an impairment, or being regarded as having such an impairment." 42 U.S.C. § 3602(h)(1-3). The Code of Federal Regulations further defines those terms used to define handicap:
24 C.F.R. § 100.201(a)(2), (b), (c) & (d)(1-3) (emphasis in original).
Within their Amended Complaint, Plaintiffs allege that they "suffer medical issues which have caused disabilities . . . mak[ing] it necessary that they have cool, filtered air in a climate-controlled environment, i.e., air conditioning in their condominium. . . ." Am. Verified Compl., ¶¶ 16 & 17 (Docket No. 40). Defendants neither argue nor offer any evidence that Plaintiffs are absolutely not handicapped under the FHA; rather, they claim that Plaintiffs are simply unable to prove that they suffer from a qualifying handicap. See Defs.' Mem. in Supp. of MSJ, p. 12 (Docket No. 54, Att. 1). If the only foundation upon which this Court was to determine whether Plaintiffs were handicapped under the FHA was the allegations contained in Plaintiffs' Amended Complaint, the undersigned would tend to agree with Defendants. However, other evidence in the record exists to support such a claim for purposes of summary judgment consideration. Specifically, Plaintiff Bernard Morgan has heart disease and an associated mycobacterium fortuitum endocarditis infection. Plaintiff Marilyn Morgan has a history of breast cancer and a recent uterine cancer diagnosis. Plaintiffs' medical records suggest as much, with their medical providers recommending a climate-controlled environment as result. For example:
Medical Records (Docket No. 54, Att. 16).
Mrs. Morgan's own testimony about the limiting effects of her condition is in accord with Plaintiffs' doctors' recommendations, e.g.: "As a result of these medical impairments [(breast cancer and uterine cancer)], I have been significantly restricted in performing the major life activities of sleeping, walking, and other day to day activities, including caring for my husband." Morgan Aff., ¶ 4 (Docket No. 58, Att. 4). Though Mrs. Morgan may not be qualified to testify about specific medical diagnoses, she is permitted to testify to things she knows based on her personal experiences, such as her symptoms and the way her disability impacts her life. See, e.g., Southern California Hous. Rights Ctr. v. Los Feliz Towers Homeowners Ass'n, 426 F.Supp.2d 1061, 1070 (C.D. Cal. 2005) (declarant has personal knowledge of her own symptoms).
The state of the medical record now before this Court, coupled with Mrs. Morgan's subjective complaints of disabling pain and corresponding limitations, arguably identifies a handicap recognized by the FHA. The fact that Plaintiffs' medical providers may not have a definitive opinion regarding whether Plaintiffs are actually handicapped (as that term is used in the FHA) is not fatal to their claim; it is one of many considerations that the jury will have to consider in determining whether Plaintiffs can establish their FHA-related claims. See, e.g., Head v. Glacier Northwest Inc., 413 F.3d 1053, 1059 (9
Defendants dispute whether Plaintiffs are handicapped under the FHA, but even so, there is no dispute that Defendants knew or should have known of Plaintiffs' claimed handicaps. Consider the parties' correspondence leading up to (and following) Plaintiffs' installation of the at-issue air conditioning unit:
Therefore, assuming for these purposes on summary judgment that Plaintiffs do suffer from handicaps in the first instance (see supra), these communications considered most favorably in favor of the Plaintiffs raise a genuine issue of material fact as to whether the Defendants knew or should have known of this element of Plaintiffs' FHA claim.
Proof of a prima facie FHA accommodation claim requires that the accommodation sought be "necessary to afford [the claimant] full enjoyment of the premises" . . . or "equal opportunity to use and enjoy a dwelling." 42 U.S.C. § 3604(f)(3)(A & B). That a requested accommodation be "necessary" naturally requires that the person requesting such an accommodation be compared to a person who is otherwise not handicapped — as an accommodation extends "full enjoyment" or "equal opportunity" only if and when it addresses the needs created by the handicap. In other words, a "necessary" accommodation is one that alleviates the effects of a handicap. See Schwarz v. City of Treasure Island, 544 F.3d 1201, 1226 (11
Here, the summary judgment record can support a scenario where Plaintiffs are handicapped and that, owing to their handicaps, they need to have cool, filtered air in a climate-controlled environment. To be sure, Defendants apparently want Plaintiffs to have such an environment. See, e.g., Defs.' Mem. in Supp. of MSJ, pp. 4-6 (Docket No. 54, Att. 1) ("The reasonable accommodation is `cool and filtered air' in [Plaintiffs'] condominium. The Board does not object (and never has) to the Morgans installing an air conditioning unit. . . . In fact, the record is that the Board wishes Mr. And Mrs. Morgan to receive an air conditioner [and] the accommodation of `cool and filtered air' has never been denied. . . ."). Moreover, Plaintiffs' medical providers recommend an air conditioned environment to help in relieving the symptoms stemming from their claimed handicaps. See supra. Therefore, assuming Plaintiffs' handicaps to exist, it is reasonable to assume that cool, filtered air in a climate-controlled environment will help ease the effects of those handicaps and, as such, is a necessary accommodation under the FHA.
Alas, cool and filtered air provided by an air conditioner alone is not the accommodation that Plaintiffs seek. Instead, Plaintiffs contend that only a refrigerated air conditioning unit (indeed, the one they actually installed on the outside of their condominium) provides what they claim is necessary for them to be able to fully enjoy their property. See Pls.' Mem. in Supp. of Mot. for PSJ, pp. 9-10 (Docket No. 58, Att. 1). This is the accommodation that must be "necessary" for Plaintiffs to prevail on their FHA claim. See, e.g., Prindable, 304 F. Supp. 2d at 1256 ("The second element of an FHA claim directs Plaintiffs to show that the requested accommodation is necessary to afford Prindable an equal opportunity to use and enjoy unit 102 of the 2987 Kalakaua. In other words, Plaintiffs must demonstrate that preventing Prindable from housing Einstein [(Prindable's alleged service animal)] in unit 102 causes the denial of Prindable's right to equal use and enjoyment of unit 102.") (emphasis added).
In Prindable, the plaintiff requested an accommodation to keep a service animal (his dog, Einstein) in his apartment and submitted to the defendants a handwritten note on a prescription pad stating, "Prindable has a medical illness for which a dog is necessary for his improvement." Id. at 1249-50. The defendants asked for verification from a physician, to describe "the nature of the `medical illness' or disability . . . and how a pet would alleviate the effects of this handicap." Id. at 1250. Instead, Prindable submitted a letter from his physician stating only that Prindable "has a medical illness for which a dog is necessary for his improvement." Id. The defendants wrote twice to the physician seeking additional information, promising that the information would be kept confidential, but the physician did not reply. Id. A behaviorist sent a letter to the defendants stating that Prindable had symptoms of depression and a pet would have a positive impact on Prindable's condition, recommending that animal-assisted therapy would assist in his improvement. Id. Another physician agreed with the behaviorist's diagnosis and recommendation in a separate letter to the defendants. Id. After the defendants informed Prindable his request would be reviewed at the next board of directors meeting, Prindable filed a housing discrimination complaint, alleging that the defendants failed to make a reasonable accommodation for him in light of his handicap. Id. at 1251.
The court acknowledged that, "[i]n certain circumstances, service animals may be necessary accommodations," but nonetheless granted summary judgment against Prindable, in part because there was insufficient evidence setting Prindable's dog apart from the ordinary pet. Id. at 1256. In this respect, the court reasoned:
Id. at 1256-57 (internal quotation marks and citations omitted).
As in Prindable, Plaintiffs' refrigerated air conditioning unit can only be a necessary accommodation under the FHA if it is "peculiarly suited to ameliorate the unique problems" presented by Plaintiffs' handicaps. Plaintiffs treat this requirement rather matter-of-factly, stating that, "[b]ased on their own experience, the Morgans know that the treatment that works for them is a refrigerated air conditioner." Pls.' Mem. in Supp. of Mot. for PSJ, p. 10 (Docket No. 58, Att. 1).
Plaintiffs supply no evidence speaking to this nuanced point. Plaintiffs' medical providers reference only Plaintiffs' generalized need for "an air conditioned environment," "cool and filtered air," a "controlled environment," and a "climate-controlled environment, i.e., air conditioning." See supra. For those concerns, any type of air conditioning is adequate to treat Plaintiffs' conditions, so long as it supplies cool and filtered air in a climate-controlled environment. Without more, this does not make refrigerated air conditioning a necessary accommodation — i.e., that, but for refrigerated air conditioning, Plaintiffs will be denied an equal opportunity to use and enjoy their condominium. It may be a preference, but it is not a need. The distinction is starkly apparent in Plaintiff Bernard Morgan's deposition testimony on the subject:
Morgan Depo. at 34:25-35:10; 37:3-13; 38:13-39:8; 44:19-45:23; 52:10-23; 53:2-21 (Docket No. 54, Att. 5).
In short, the record evidences Mr. Morgan's rigid insistence on a refrigerated air conditioner unit is premised on nothing more than the fact that he wants what he has had, not because other modes of air conditioning are incapable of meeting his medical needs. This record contains no evidence of some unique or other distinguishing characteristic that would change refrigerated air conditioning from simply one option among several to meet Plaintiffs' needs into a singularly necessary form of air conditioning that fits the definition of a necessary accommodation under the FHA.
Therefore, while cool and filtered air in a climate-controlled environment may be a necessary accommodation to the extent it helps treat Plaintiffs' claimed handicaps, there is no discrete causal link between refrigerated air conditioning specifically and any such treatment. Stated slightly differently, no evidence exists that the prohibition against outside-installed, refrigerated air conditioning units prevents Plaintiffs' equal opportunity to use and enjoy their condominium as a matter of law.
"A reasonable accommodation `can involve changing some rule that is generally applicable so as to make its burden less onerous on the handicapped individual.'" Prindable, 304 F. Supp. 2d at 1257 (quoting Hubbard v. Samson Mgmt. Corp., 994 F.Supp. 187, 189 (S.D.N.Y. 1998)). However, "there is no `obligation to do everything humanly possible to accommodate a disabled person; cost (to the defendant) and benefit (to the plaintiff) merit consideration as well.'" Prindable, 304 F. Supp. 2d at 1257 (quoting Bronk v. Ineichen, 54 F.3d 425, 429 (7
In this case, it is obvious that cool, filtered air in a climate-controlled environment is a reasonable accommodation. Defendants say that even if they were to concede that Plaintiffs are entitled to an accommodation, air conditioning is and always has been available to Plaintiffs. See Defs.' Mem. in Supp. of MSJ, p. 5 (Docket No. 54, Att. 1) ("This accommodation [(an air conditioner)] has never been denied and, in fact, has always been available to Plaintiffs.") (emphasis in original). However, in that particular space, Plaintiffs cannot demonstrate that each and every possible mechanism for providing cool, filtered air in a climate-controlled environment is, ipso facto, also reasonable.
The heart of this issue traces to the Fairway Nine II CCR prohibition against outside, refrigerated air conditioner units. See CCR, § 10.11 (Docket No. 58, Att. 6) ("No clothes lines, television antennas, wiring or installation of air conditioning or other machines shall be installed on the exterior of the building or be allowed to protrude through the wells, the windows or the roof of the building, unless the prior written approval of the Board of Directors is secured."). And, inescapably, Plaintiffs' actual installation of a refrigerated air conditioning unit on the outside of their condominium runs afoul of the HOA/CCR rules. But such a violation is not necessarily an administrative hardship for the purposes of whether a requested accommodation is an undue burden or otherwise unreasonable. See, e.g., Kulin v. Deschutes Cnty., 872 F.Supp.2d 1093, 1100 (D. Or. 2012) ("[S]imply because a requested accommodation would alter a substantive rule or regulation does not render it unreasonable or unduly burdensome.") (citing Martin v. PGA Tour, Inc., 994 F.Supp. 1242, 1247 (D. Or. 1998)); see also Pls.' Resp. to Defs.' MSJ, pp. 10-11 (Docket No. 57) ("To argue that any modification is an unreasonable administrative burden if it violates the policies of the Defendant would render the Fair Housing Act irrelevant. . . . This position is one that, if the court accepted, would essentially allow Defendants to insulate themselves from the Fair Housing Act by drafting other rules that are discriminatory on their face.").
Instead, "[a]n accommodation imposes an undue financial or administrative burden if its costs are clearly disproportionate to the benefits it will produce." Kulin, 872 F. Supp. 2d at 1100 (citing Borkowski v. Valley Cent. Sch. Dist., 63 F.3d 131, 138 (2
Simply put, the record does not contain any persuasive reason to support a claim that a refrigerated air conditioning unit installed on the outside of Plaintiffs' condominium is a reasonable accommodation to address Plaintiffs' handicaps. The legitimate concerns over a need for cool, filtered air can be met by alternatives that do not raise even a genuine issue of fact as to whether they could possibly outweigh the legitimate interests served by the HOA's prohibition against such units. Whatever benefits flow to Plaintiffs in the installation of such a unit are outweighed by the costs to Defendants and others. As a result, no evidence exists that Plaintiffs' as-installed, outside refrigerated air conditioning unit is a reasonable accommodation as a matter of law.
As previously discussed, housing providers are not required under the FHA to immediately grant all requests for accommodation. See Prindable, 304 F. Supp. 2d at 1258 ("`[T]he duty to make a reasonable accommodation does not simply spring from the fact that the handicapped person . . . wants such an accommodation made.'") (quoting Gavin v. Spring Ridge Conservancy, Inc., 934 F.Supp. 685, 687 (D. Md. 1995)). "Defendants must instead have been given an opportunity to make a final decision with respect to Plaintiffs' request, which necessarily includes the ability to conduct a meaningful review of the requested accommodation to determine if such an accommodation is required by law." Prindable, 304 F. Supp. 2d at 1258 (internal citations omitted). "Once allowed that opportunity, `a violation occurs when the disabled resident is first denied a reasonable accommodation, irrespective of the remedies granted in subsequent proceedings.'" Id. (quoting Groome Resources Ltd., LLC v. Parish of Jefferson, 234 F.3d 192, 199 (5
Unless and until a reasonable accommodation is denied, there is no discrimination under the FHA. See 42 U.S.C. § 3604(f)(3)(B). Similarly, unless there is or is about to be an occurrence of discrimination, there is no cause of action. See 42 U.S.C. § 3613(c)(1). "The denial can be either actual or constructive, `as an indeterminate delay has the same effect as an outright denial.'" Prindable, 304 F. Supp. 2d at 1258 (quoting Groome Resources, 234 F.3d at 199).
Defendants say that they "did not refuse the requested accommodation." See Mem. in Supp. of Defs.' MSJ, p. 4 (Docket No. 54, Att. 1). But, in fact, Defendants refused Plaintiffs' request to install a refrigerated air conditioning unit in the Summer of 2013 — the genesis of this action. Defendants apparently mean to say that they never refused a request for a reasonable accommodation, either in the form of a water-cooled or inside room-based air conditioning unit. See id. ("The reasonable accommodation is `cool and filtered air' in his condominium. The Board does not object (and never has) to the Morgans installing an air conditioning unit. The only disagreement here is the placement and/or the type of unit that can be installed."). But this statement is also not precisely correct, because at the time Plaintiffs were looking to install their refrigerated air conditioning unit the Board was postponing consideration of any request for any type of air conditioning unit — regardless of whether it was for a water-cooled, inside-room based, or some other form of air conditioning unit. The purported justification for the postponement of consideration of such requests stemmed from an action taken in June 2013 by the Sun Valley Sewer and Water Board ("SVSWD") to impose a six-month moratorium on the future installations of "water based" air conditioning units. See Pls.' U.F. No. 5 (Docket No. 54, Att. 2) (citing Haase Aff., ¶ 16 (Docket No. 54, Att. 3)).
7/15/13 Minutes (Docket No. 58, Att. 4) (emphasis added). Similarly, in a September 6, 2013 letter to the Plaintiffs, the Board said, in part:
9/6/13 Ltr. (Docket No. 58, Att. 4) (emphasis added). Then again, in a September 12, 2013 letter to Plaintiff Bernard Morgan, the Board said:
9/12/13 Ltr. (Docket No. 58, Att. 4) (emphasis added). This correspondence indicates the Board viewed its required approval extending to all types of air conditioners
Accordingly, it is incorrect to state as a matter of law — as Defendants have here — that "[r]oom-based air conditioners have ALWAYS been an acceptable option." Defs.' Mem. in Supp. of MSJ, p. 8 (Docket No. 54, Att. 1) (emphasis in original). Arguably, so long as Plaintiffs were unable to receive cool, filtered air in a climate-controlled environment during the six-month moratorium, Defendants refused to make either the requested (refrigerated air conditioning) — or even reasonable (water-cooled or inside, room-based air conditioning) — accommodations during that time. The record is too underdeveloped to determine that to actually be the case as a matter of law. Still, after the moratorium was lifted — and presumably with water-cooled and/or inside room-based air conditioners available to Plaintiffs — reasonable accommodations exist to account for and treat Plaintiffs' claimed handicaps. As a result, and particularly so with inferences drawn in favor of the non-movant, questions of fact exist as to whether Defendants refused to make the requested/reasonable accommodation.
Defendants seek dismissal of the individual Defendants, arguing that there is no evidence that any individual Defendant acted outside his or her role either as members of the Board or as property manager for Pioneer West Property Management, LLC. See Defs.' Mem. in Supp. of MSJ, pp. 13-15 (Docket No. 54, Att. 1) ("In order to have a cause of action against the individually-named Defendants, Plaintiffs must prove that they acted outside the scope of their respective roles within the two organizations."). In essence, Defendants argue that the individual Defendants cannot be held liable in an individual capacity merely based upon their association with the decision-making entities involved here (the Board and property management company).
Other courts have ruled that directors who participate in, authorize, or ratify the commission of a FHA violation may be held individually liable. See Fielder v. Sterling Park Homeowners Ass'n, 914 F.Supp.2d 1222, 1227 (W.D. Wash. 2012); but see Rosenfeld v. Hackett, 2010 WL 5067960, *2 (D. Or. 2010) (citing "lack of clear guidance from statutory language or reported case law in FHA accommodation cases," relying upon "closely related field of disability discrimination under Title VII and the Americans with Disabilities Act" in prohibiting individual capacity claims against individual defendants).
Here, Plaintiffs' allegations create a genuine issue of material fact as to whether the individual Defendants contributed in some way to the alleged refusal to reasonably accommodate Plaintiffs. These Defendants wrote letters to Plaintiffs rejecting their request for a refrigerated air conditioner. See, e.g., 8/21/13, 9/12/13 & 10/25/13 Ltrs. from Pioneer West and 9/6/13, 9/16/13
Of course, this presumes that Plaintiffs' actual FHA claims have merit — something that is not altogether clear based upon the discussion of the issues contained herein. Whether Plaintiffs can ultimately prove such a violation remains to be seen, but at this state the claims against the individual Defendants cannot be resolved as a matter of law upon the rationale put forward by Defendants. Therefore, Defendants' Motion for Summary Judgment in denied in this respect.
As to Defendants' Motion for Summary Judgment, a question of fact exists as to whether Defendants refused a reasonable accommodation during the period of the SVSWD's six-month moratorium, with the related decision by the Board to arguably not approve any air conditioning requests during the moratorium. Given the evidence of the individual Defendants' role in the refusal of such an accommodation, they should not be dismissed at this time.
As to Plaintiffs' Motion for Partial Summary Judgment, there are genuine issues as to whether Plaintiffs are indeed handicapped under the FHA and whether refrigerated air conditioning is either a necessary or reasonable accommodation under the circumstances presented by those handicaps.
Therefore, it is recommended that each of the summary judgment motions be denied. To be clear, what remains at-issue as a result (although not neatly framed by the parties' as-filed dispositive motions) is whether an FHA claim exists during the period represented by the six-month period coinciding with the SVSWD's moratorium.
Plaintiffs filed their Complaint on November 7, 2013. On December 2, 2013, Defendants filed their Answer. On June 23, 2014, after the Court adopted the parties' Stipulation to File Amendments to the Pleadings, Plaintiffs filed an Amended Complaint. The next day, Defendants filed a Verified Counterclaim. Defendants' actual Answer to Plaintiffs' Amended Complaint was filed on July 21, 2014.
Plaintiffs now move to strike Defendants' Verified Counterclaim because it "was not filed as part of Defendants' Answer or any other allowable pleading" under the Federal Rules of Civil Procedure. See Pls.' Mem. in Supp. of Mot. to Strike, p. 3 (Docket No. 60, Att. 1). Defendants oppose this motion and alternatively move to amend their Answer to include their Verified Counterclaim. See Defs.' Opp. to Mot. to Strike (Docket Nos. 67 & 68).
Plaintiffs do not oppose Defendants' request to amend its Answer to include the Verified Counterclaim. Moreover, good cause exists to do so given that Defendants' Answer referenced the previously-filed Verified Counterclaim. There is no prejudice to Plaintiffs if Defendants' requested amendment is permitted.
Therefore, Defendants' Motion to Amend Answer to Include the Verified Counterclaim (Docket No. 68) is granted. As such, Plaintiffs' Motion to Dismiss and/or Strike Defendants' Counterclaim (Docket No. 60) is denied as moot.
Based on the foregoing, IT IS HEREBY RECOMMENDED that:
Pursuant to District of Idaho Local Civil Rule 72.1(b)(2), a party objecting to a Magistrate Judge's recommended disposition "must serve and file specific, written objections, not to exceed twenty pages . . . within fourteen (14) days . . ., unless the magistrate or district judge sets a different time period." Additionally, the other party "may serve and file a response, not to exceed ten pages, to another party's objections within fourteen (14) days after being served with a copy thereof."
Also based on the foregoing, IT IS HEREBY ORDERED that:
Medical Records (Docket No. 54, Att. 16). Dr. Davis was also identified in Plaintiffs' Initial Disclosures on January 31. 2014. See Pls.' Initial Disclosures, p. 11 (Docket No. 54, Att. 14).
Ans., p. 6 (Docket No. 44).
