WARREN W. EGINTON, Senior District Judge.
Upon de novo review and over objection, the Court hereby approves and adopts Magistrate Judge Fitzsimmons's recommended ruhng on damages [doc. # 112].
The clerk is instructed to enter judgment in plaintiffs favor awarding $112,407 in compensatory damages and $150,000 in punitive damages for a total award of $262,407. Plaintiff may file a bill of costs within ten days after entry of judgment.
The clerk is instructed to close this case.
HOLLY B. FITZSIMMONS, United States Magistrate Judge.
On December 2, 2010, the Hon. Warren W. Eginton, D.J. entered a default judgment against defendants and referred this matter to the undersigned for a recommended ruling on damages.
Donna Parris filed this civil rights action for declaratory and injunctive relief and damages on July 20, 2010, alleging violation of the Fair Housing Amendments Act, 42 U.S.C. § 3601, et seq.; violation of Connecticut's Discriminatory Practices Act, Conn. Gen.Stat. § 46a-64c; Breach of Contract; Breach of the Covenant of Good Faith and Fair Dealing; and violation of the Connecticut Unfair Trade Practices Act, ("CUTPA"), Conn. Gen.Stat. § 42-110b, et seq. [Doc. # 1].
Plaintiff is a resident at 6 Normandies Park Road, Dayville, CT. Normandies Park is a mobile home park. The defendants are Normandies Park LLC, owner of Normandies Park since April 8, 2010; Charles Pappas, member of Normandies Park, LLC; Anna Alexis LLC, owner of Normandies Park from at least December 2005 through April 8, 2010; and Robin Delaney, manager of Normandies Park and a member of Anna Alexis, LLC. [Doc. # 1 ¶¶ 4-7].
The Court granted default judgment in favor of plaintiff on December 2, 2010, and granted a motion for preliminary injunction on December 14, 2010, 2010 WL 5157326. [Doc. ##17, 26]. The Court enjoined the defendant mobile home park owners Charles Pappas, Robin Delaney, Anna Alexis, LLC and Normandies Park, LLC, to allow plaintiff the reasonable accommodation for her disabilities of having a 24 hour live-in aide; prohibited defendants from retaliating against plaintiff; and ordered Normandies Park, LLC to cease its retaliatory eviction proceeding against plaintiff. [Doc. # 26].
Counsel for defendants filed an appearance on December 13, 2010, [Doc. #25], and defendants filed a Motion to Reopen on December 16, 2010. [Doc. # 27]. The Court denied defendants' Motion to Reopen on February 23, 2011. [Doc. #44].
"[A] party's default is deemed to constitute a concession of all well pleaded allegations of liability," but it "is not considered an admission of damages." Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992). "While a default judgment constitutes an admission of liability, the quantum of damages remains to be established by proof unless the amount is liquidated or susceptible of mathematical computation." Flaks v. Koegel, 504 F.2d 702, 707 (2d Cir.1974). Plaintiff must establish the damages "in an evidentiary proceeding in which the defendant has the opportunity to contest the amount." Greyhound Exhibitgroup, 973 F.2d at 158; see also Overcash v. United Abstract Group, Inc., 549 F.Supp.2d 193, 196 (N.D.N.Y.2008) ("[E]ven upon default, a court may not rubber-stamp the non-defaulting party's damages calculation, but rather must ensure that there is a basis for the damages that are sought."). "The burden is on the plaintiff to establish its entitlement to recovery." Bravado Int'l Group Merch. Servs. v. Ninna, Inc., 655 F.Supp.2d 177, 189 (E.D.N.Y.2009); see also Greyhound Exhibitgroup, 973 F.2d at 158, 160.
The following facts are accepted as true for purposes of establishing liability.
Plaintiff purchased a mobile home from Anna Alexis, LLC on November 5, 2006 for $72,000 and entered into a rental agreement dated July 1, 2008 for lot # 6 at Normandies Park. [Doc. # 1, ¶¶ 8-9]. The rental agreement provides that the park owner, Anna Alexis, LLC, shall maintain all electrical, plumbing, gas, or other utilities provided in good working condition. Id. During an emergency situation, repairs must be made within 72 hours and the park owner must maintain all water and sewer lines and connections. Id.
In March 2009, plaintiff began to experience problems with her septic tank, including sewage back up into the toilets, failure of the leaching mechanism causing sewage to surface underneath her home and into the yard, unbearable stench in and around her home, and destruction to property stored under her home. Id. ¶ 15. The septic system required servicing in March 2009, July 2009, twice in October 2009, once in November 2009, once during winter 2009-10, on March 18, 2010, and two additional times since March 2010. Id. ¶ 16. In an effort to remediate the septic problems, plaintiff contacted the Town of Killingly in October 2009 and March 2010 and the Connecticut Department of Consumer Protection. Id. ¶ 19. The Town of Killingly notified the Northeast Division Department of Public Health on plaintiff's behalf. Id.
On at least three occasions, defendants attempted to shift the burden of maintaining the water and septic system from the owner of the park to the tenant.
A default constitutes an admission of all well-pleaded factual allegations in the complaint, except for those relating to damages. Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir.1992); Au Bon Pain Corp. v. Artect, Inc., 653 F.2d 61, 65 (2d Cir. 1981). A default also effectively constitutes an admission that damages were proximately caused by the defaulting party's conduct; that is, the acts pleaded in a complaint violated the laws upon which a
Here the allegations of plaintiff's complaint, taken as true, establish a violation of the Fair Housing Act 42 U.S.C. § 3601, et seq. ("FHA"), as alleged in Count One; a violation of the Connecticut Discriminatory Housing Practices Act, Conn. Gen. Stat. § 46a-64c, as alleged in Count Two; breach of contract, as alleged in Count Three; breach of the implied covenant of good faith and fair dealing, as alleged in Count Four; and violation of the Connecticut Unfair Trade Practices Act, Conn. Gen. Stat. § 42-110b, et seq. ("CUTPA"), as alleged in Count 5.
Ms. Parris seeks at least $100,000 in compensatory damages and at least $150,000 in punitive damages, plus attorneys' fees and costs, for the violation of her civil rights protected by the FHA.
Plaintiff bases her claim for compensatory damages on the duration of the discrimination, fear and anxiety associated with possibly losing her medically necessary live-in aide, the fear and anxiety associated with the eviction, and the physical pain and suffering resulting from defendants' conduct. [Doc. # 71 at 6-7].
Plaintiff seeks damages from November 2009 to the present, stating "to this day, [defendants] have never granted [her] reasonable accommodation request that they allow Mr. Dembowski to live in her home as a live-in aide." [Doc. # 71 at 7]. The Court finds plaintiff has established the duration of the discrimination as alleged in the complaint.
The Court finds that Ms. Parris suffered significant emotional and physical distress arising from defendants' actions. Specifically, plaintiff experienced fear and anxiety at the prospect of losing her live-in aide and the loss of her home through eviction proceedings initiated by defendants. [Compl. ¶¶ 10-13, 36]. Plaintiff's medical conditions are severe and the services provided by her live-in aide are necessary. [Pl. Ex. 1, Compl. ¶ 30]. Among other things, loss of her live-in aide would prevent Ms. Parris from taking her insulin shots, properly dressing herself, cooking in her home, noticing if she injured herself, making emergency phone calls and generally monitoring her medical condition. Compl. ¶¶ 11-13, 30.
Plaintiff testified credibly, based on her dealings with Attorney Lonardo, that she feared she would lose her home to eviction.
Finally, it is clearly established that plaintiff suffered emotional and physical distress due to the pervasive and repetitive septic problems, the intense smell associated with the presence of raw sewage and defendants' actions in response to plaintiff's complaints.
The Court finds that damages in the amount of $100,000 will reasonably compensate plaintiff for (1) defendants' failing to accommodate her disability; (2) threatening to evict her because she had a 24-hour live-in care provider; (3) attempting to use plaintiff's request for a reasonable accommodation as leverage to coerce a new lease agreement requiring to pay for sewage repairs; and (4) filing a notice to quit on March 24, 2010, a Summary Process Complaint on June 17, 2010 and an amended Summary Process Complaint on August 3, 2010. Beginning with the threatened eviction in November 2009, the eviction proceeded for more than a year
In fashioning an appropriate compensatory award, the Court also considered the testimony of Ellen Mary St. Jean, a realtor with Exit Hometown Properties in Putnam, Connecticut. She testified that she represented Ms. Parris as her agent when plaintiff purchased her mobile home in 2006. Ms. Parris contacted Ms. St. Jean in March 2010 about selling her mobile home. Ms. St. Jean testified that she advised plaintiff against selling because her home would not sell with the current septic issues and a financing company would refuse financing on that basis. [Doc. # 57 105:10-106:13]. Ms. St. Jean testified it would not be cost effective for Ms. Parris to move her home to another park. [Doc. #57 109:7]. She explained that because plaintiff owns a double wide mobile home, it would have to be taken apart before it could be moved. [Doc. #57 at 118:1-21]. Ms. St. Jean estimated that it would cost approximately $10,000 to move the house after it was deconstructed, and reconstructed at a new site.[Doc. # 57 at 118:1-21]. She did not know if there were any lots in the area available to accommodate a double wide mobile home. [Doc. #57 117:19-118:21]. Ms. Parris purchased her new mobile home in 2006 for $74,000.
The Court has carefully considered the cases cited by plaintiff in fashioning an appropriate compensatory damages award for violation of her FHA rights.
This Court is guided by the following framework:
Thorsen v. County of Nassau, 722 F.Supp.2d 277, 292 (E.D.N.Y.2010) (quoting Olsen v. County of Nassau, 615 F.Supp.2d 35, 46-47 (E.D.N.Y.2009) (internal citations and quotation marks omitted)).
Based on the testimony and evidence, plaintiff's emotional and physical distress
The Court finds that an award of $100,000 will fairly compensate plaintiff. See Broome v. Biondi, 17 F.Supp.2d 211, 223 (S.D.N.Y.1997)(upholding an emotional distress award of $228,000 in an FHA racial discrimination case where a married couple was denied an apartment); 119-121 E. 97th St. Corp. v. New York City Comm'n on Human Rights, 220 A.D.2d 79, 81, 642 N.Y.S.2d 638 (N.Y.App.Div.1996) (affirming $100,000 compensatory damages award for emotional distress caused by a FHA violation for discrimination on the basis of sexual orientation and disability over an 18 month period). The Court also reviewed consent decrees in FHA disability discrimination cases. United States & Harry Tyus v. Fairway Trails Ltd., 5:06-cv-12087-JCO-VMM, doc. # 17 (E.D.Mich.S.D. Jan. 18, 2007) (alleging defendants retaliated against complainant for asserting his FHA rights. "Specifically, the complaint alleged that defendants retaliated against complainant when, two days after a state court ruling in an eviction proceeding that defendants had to accommodate the complainant's disability ... they sent him a letter stating that his lease would not be renewed." Consent decree requires defendants to pay the complainant $50,000 in damages along with training and reporting requirements)
Plaintiff seeks an award of punitive damages of at least $150,000 for defendants' violations of the FHA.
United States v. Space Hunters, Inc., 429 F.3d 416, 427 (2d Cir.2005) (internal quotation marks and citations omitted) (on remand jury awarded $150,000 in punitive damages).
Plaintiff argues that, "[n]ot only did the defendants know Ms. Parris' live-in aide was medically necessary, but they chose to use that information against her. One rarely sees a fair housing case where a reasonable accommodation is turned on its head and used as the basis for a retaliatory eviction. But that is exactly what the defendants did and it warrants punitive damages." [Doc. # 71 at 17 (emphasis in original)]. Plaintiff relies on the following facts to support her request for punitive damages and her contention that defendants acted willfully, maliciously and with reckless indifference to her FHA rights.
The Supreme Court in BMW of North America v. Gore identified three "guideposts" for determining whether a punitive damages award is excessive: 1) the degree of reprehensibility; 2) the disparity between the harm or potential harm and the punitive damages award; and 3) the difference between the remedy and the civil penalties authorized or imposed in comparable cases. Ziemba v. Armstrong, 433 F.Supp.2d 248, 255 (D.Conn.2006) (citing BMW of North America v. Gore, 517 U.S. 559, 116 S.Ct. 1589, 134 L.Ed.2d 809 (1996)).
"Perhaps the most important indicium of the reasonableness of a punitive damages award is the degree of reprehensibility of the defendant's conduct." Id. (quoting Gore, 517 U.S. at 575, 116 S.Ct. 1589). To assess the degree of reprehensibility, the court must consider three "aggravating factors": "1) whether a defendant's conduct was violent or presented a threat of violence; 2) whether a defendant acted with malice as opposed to mere negligence; and 3) whether a defendant has engaged in repeated instances of misconduct." Id.
In examining the Gore factors, the Court finds that punitive damages are warranted here. First, defendants' conduct toward Ms. Parris was highly reprehensible. The record contains evidence that defendants acted willfully, maliciously and/or with reckless disregard for plaintiff's FHA rights when they failed to accommodate her disability. Particularly, there is evidence that after plaintiff provided proof of her medical disability, defendants continued eviction proceedings until they were ordered by the Court to withdraw the action. See Space Hunters, Inc., 429 F.3d at 427 ("A plaintiff may establish the requisite state of mind for an award of punitive damages with evidence (1) that the defendant discriminated in the face of a perceived risk that its actions violated federal law, or (2) of egregious or outrageous acts that may serve as evidence supporting an inference of the requisite evil motive.").
As set forth in this opinion, the evidence also indicates that defendants' actions inflicted emotional and physical harm to plaintiff. Moreover, despite a court-ordered agreement to refrain from dissipating assets, defendants have reduced the value of the disclosed properties by failing to pay taxes, listed some of the disclosed properties for sale and took steps to further encumber the property by incurring expenses for work by outside contractors whom they did not pay, resulting in mechanics liens.
Third, the punitive damage award is reasonable compared with the penalties that could be imposed for the conduct at issue. Under the Federal Fair Housing Act, 42 U.S.C. § 3613[c], there is no limitation on the amount of punitive damages that may be awarded. Defendants were dealing with a tenant who had significant health issues and who was vulnerable emotionally and financially. The record reflects they tried to take advantage of her for their own financial benefit.,
Based on all these considerations, the Court awards plaintiff $150,000 in punitive damages.
Ms. Parris seeks $62,407 in compensatory damages and $100,000 in punitive damages, plus attorneys' fees and costs for violation of CUTPA.
Ms. Parris seeks recovery of ascertainable losses in the amount of $12,407 and $50,000 for pain and suffering to compensate her for the CUTPA violation.
Plaintiff seeks $12,407 in ascertainable losses, pursuant to Conn. Gen.Stat. § 42-110g as follows.
Rent Reimbursement $ 9,480 -during the period of septic issues ($395/mo × 24 mo)24 Property Loss $ 800 -Camping Equipment Hotel $ 255 -($89/night × 3 nights) Loss of use of dishwasher $ 936 -disposable pans, dishes, utensils, glasses ($12/wk × 78 weeks) Loss of use of washing machine $ 936 -Laundromat ($12/wk × 78 wks)25 _______ TOTAL $12,407
The Court finds that plaintiff is entitled to recover the rent she paid during the period that she was discriminated against on the basis of her disability and while the septic issues were unresolved. Plaintiff has clearly established that she incurred a loss of occupancy value and suffered emotional and physical distress due to defendants' actions. Conaway v. Prestia, 191 Conn. 484, 493, 464 A.2d 847 (1983)(Supreme Court held that a landlord's violation of the standards of safety and habitability set forth in the landlord and tenant statutes offends public policy and amounts to an unfair act or practice in violation of CUTPA.) In the present case, the defendants' collection of rent while violating plaintiff's FHA rights, failing to resolve the septic issues in an effort to coerce a new rental agreement, and commencing eviction proceedings is unfair, offends public policy and caused injury to plaintiff. See Hiraprashad v. Rebeiro, 40 Conn. L. Rptr. 317, 2005 WL 3508326, *2 (Conn.Super.Ct. Nov. 22, 2005) (finding plaintiff alleged a claim under CUTPA where landlord continued to collect rent despite failure to keep common areas of the premises in safe condition); Dominick v. Rivas, No. CVNH-0803-13197, 2009 WL 1957630, *2-3 (Conn.Super.Ct. Mar. 5, 2009) (finding that CUTPA's remedial purposes are served by its applicability to single landlord-tenant transactions).
Plaintiff is also entitled to recover expenses incurred due to the septic system
Accordingly, plaintiff may recover her ascertainable losses in the amount of $12,407.
In addition to ascertainable losses, plaintiff is seeking $50,000 in compensatory damages for pain and suffering caused by the CUTPA violations. As set forth above, plaintiff has established that defendants' actions caused her both emotional and physical pain and suffering. Under CUTPA, Parris seeks damages for physical pain and suffering caused by defendants' failure to properly maintain the property because of the "ongoing and disgusting septic issues." [Doc. # 71 22-24]. However, her recovery theory and the facts she relies on are coextensive with the compensatory damages already awarded for the FHA violation, including the nausea, medical treatment, anxiety, stress and pain associated with the sewage spills, as well as defendants' attempt to use plaintiff's request for a reasonable accommodation as leverage to coerce a new lease agreement requiring her to pay for septic system repairs. Thus, an additional compensatory award under CUTPA would amount to a double recovery. Accordingly, the Court declines to make a further compensatory damages award under CUTPA for emotional and physical pain and suffering.
Plaintiff seeks an award of $100,000 in punitive damages for violation of CUTPA, arguing that this figure is "less than twice her compensatory damages."
For the reasons stated, the Court recommends that the Court award to plaintiff of $112,407 in compensatory damages, and $150,000 in punitive damages, for a total damages award of $262,407.
Plaintiff will file a bill of costs within ten (10) days after entry of judgment. D. Conn. L. Civ. R. 54(a)(1).
ENTERED at Bridgeport, this 4th day of January 2012.