IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MICHIGAN

ADAM HUSSAIN and SARA HUSSAIN,
Plaintiffs,
v.
QUALITY PROPERTIES, INC.,
Defendant.

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Case No. 13-CV-5278

Motion to Dismiss and Memorandum in Support

Defendant, Quality Properties, Inc., respectfully moves, through counsel,
for dismissal of this housing discrimination case pursuant to rule 12(b)(6) of
the Federal Rules of Civil Procedure. As set forth in the accompanying
Memorandum in Support, Plaintiffs complaint should be dismissed for failure
to state a clam upon which relief can be granted.
Plaintiffs, who are tenants of Defendants apartment complex, bring this
action pursuant to 42 U.S.C. 3604(b) and 3617, part of the federal Fair
Housing Act. Plaintiffs allege that Defendant violated the FHA for failing to
stop discriminating and harassing conduct by neighbors based on religion.
Plaintiffs have failed to establish that Defendant owes a duty to take steps to
prevent such conduct, because:
(1) Religious discrimination which takes place after the acquisition of a
dwelling is not actionable under the Fair Housing Act; and
(2) Under either 3604 or 361, Defendant owes no duty and is not liable
for the intervening discriminating actions of other tenants.
Accordingly, Plaintiffs Complaint should be dismissed with prejudice.
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STATEMENT OF FACTS
Plaintiffs Adam and Sara Hussain are married with two children and reside
at Sheridan Apartments, a residential dwelling owned and managed by
Defendant. (Compl. 5.) Plaintiffs are U.S. citizens who identify themselves
as Muslim. (Compl. 9.) Plaintiffs contend that Defendant failed to take
reasonable steps in response to discriminatory and harassing conduct based
on religion, which was wholly and exclusively carried out by neighbors at
Sheridan Apartments. (Compl. 2, 14, 15.)
Plaintiffs moved into Sheridan Apartments in February of 2013. (Compl.
8.) Plaintiff Adam Hussain has a beard, and Sara Hussain wears a hijab,
both of which Plaintiffs contend are outward displays of their religion and
make them identifiable to others as Muslim. (Compl. 10, 11.) Plaintiffs
allege that after moving into the apartment managed by Defendant,
cotenants repeatedly harassed them because of Plaintiffs religion. (Compl.
14.) Plaintiffs contend that this harassment was severe and pervasive,
based on religious intolerance on the part of other tenants- none of whom
are identified by name in the Complaint. (Compl. 14.) The alleged
discrimination includes defacement of a flyer with religious slurs, a note
taped onto Plaintffs mailbox, yelling, writing epithets on Plaintiffs car, beer
cans thrown onto Plaintiffs patio, and threats of physical harm. (Compl.
15.)

In March of 2013, Plaintiffs contacted Defendant via telephone and writing

and asked Defendant to take immediate, effective action to prevent or end
the harassment. (Compl. 16.) Plaintiffs subsequently sent more letters,
asking Defendant to intervene to prevent cotenant harassment, again not
identifying any cotenant by name. (Compl. 17, 18, 20, 21). Plaintiffs have
not alleged any harassment directly carried out by Defendant, but solely acts
by neighbors whose basis for discriminating alleged to have been Plaintiffs
religion. The harassment is furthermore solely attributed to the time period
after Plaintiffs began renting the apartment. (Compl. 15.)
Defendant responded to Plaintiffs in writing on May 13, 2013 and informed
them that Quality Properties does not have an obligation to intervene in
personal disputes between tenants. (Compl. Exhibit E.) The Rules and
Regulations of the lease state, in pertinent part, that tenants are to protect
the quiet enjoyment of other residents and not play radios, stereos or other
such devices in such a manner as to disturb others. (Compl. Exhibit A.) The
lease does not contain any requirement that a tenant act in a way to avoid
personal disputes with other tenants.
Plaintiffs claim Defendants failure to take reasonable steps to prevent the
adverse actions by cotenants violates the Fair Housing Act.
ARGUMENT
The Complaint should be dismissed because Plaintiffs claim for
post-acquisition discrimination based on the discriminatory conduct
of third parties is not actionable under the Fair Housing Act; 42
U.S.C. 3604(b) and 3617.
A Rule 12(b)(6) tests the legal sufficiency of a complaint. In evaluating a
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motion to dismiss, the court assumes all factual allegations in the complaint
are true and construes them in the light most favorable to the plaintiff.
Additionally the court must determine if a claim to relief is plausible on its
face. Heinrich v. Waiting Angels Adoption Servs., Inc., 688 F.3d 393, 403 (6th
Cir. 2012) (quoting Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009)) (alteration in
original). Although a complaint need not state detailed factual allegations, it
must contain sufficient factual allegations to raise a reasonable expectation
that discovery will reveal evidence of the elements of the claim. Bell
Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1965 (2007). The complaint must
provide more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do. Id. at 1955.
Section 3404(a) makes it unlawful for a person to refuse to sell or rent
after the making of a bona fide offer, or to refuse to negotiate for the sale or
rental of, or otherwise make unavailable or deny, a dwelling to any person
because of race, color, religion, sex, familial status, or national origin.
Section 3404(b) prohibits discriminat[ion] 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. Section 3617 furthermore makes it
unlawful for a person 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

section 3604.
The statute, when properly interpreted, does not apply to Plaintiffs
situation and this court should not extend the law of the Fair Housing Act to
post-acquisition claims. The statutes pre-acquisition application is
straightforward in that it makes unlawful refusing to sell or rent a dwelling
based on discrimination. Some courts have taken the statutes language
further, and considerable debate exists as to whether services or facilities
and in connection therewith apply to services or facilities connected with
after the initial sale or rental contract. Strictly construed, it should be
interpreted to apply to pre-acquisition claims only. To apply the statute to
Plaintiffs situation this court will be taking the FHA beyond its intended
scope.
Although the FHA is to be given a generous construction, this was
initially construed to apply to discriminatory practices stemming from
minority applicants of housing which were denied based on their race.
Trafficante v. Metro. Life Ins. Co., 93 S. Ct. 364, 368 (1972). Section 3604 (a), in particular, has
been designed to ensure that no one is denied access to housing for discriminatory purposes.
Southend Neighborhood Improvement Ass'n v. County of St. Clair, 743 F.2d 1207, 1210 (7th
Cir.1984). Courts have applied this subsection to actions having a direct impact on the ability of
potential homebuyers or renters to locate in a particular area, and to indirectly related actions
arising from efforts to secure housing.
Courts have applied this subsection to actions having a direct impact on the ability of potential
homebuyers or renters to locate in a particular area, and to indirectly related actions arising from
efforts to secure housing. See, e.g., Dillon v. AFBIC Development Corp., 597 F.2d 556 (5th

Cir.1979); Williams v. Matthews Co., 499 F.2d 819 (8th Cir.), cert. denied, 419 U.S. 1021 &
1027, 95 S.Ct. 495 & 507, 42 L.Ed.2d 294 & 302 (1974).
Despite the FHAs 40+ year history, several recent cases have held that
the FHA applies to post-acquisition claims, which has led to a split in circuit
courts over this largely unresolved issue. Some courts have allowed
narrowly applying post-acquisition claims and refused to apply 3604(b)
unless the situation amounted to constructive eviction. Still others have
taken the big leap of allowing such claims to continue, despite the absence
of constructive eviction. Many courts, however, continue to apply the FHA to
pre-acquisition claims only, and have held that allegations after the initial
sale or rental of a dwelling are not cognizable.
Although the sixth circuit hasnt directly addressed post-acquisition claims
before, the seventh circuit has held that although rights of enjoyment are
granted in 3604 , there is no claim cognizable for post-sale harassment.
Since the rights of the statute pertain to acquisition, short of redlining (or
steering tenants away from a sale or rental of a dwelling in the acquisition
phase) or making the situation so intolerable so that a tenant were forced to
leave, would not constitute interference with these protected rights. Halprin
v. Prairie Single Family Homes of Dearborn Park Ass'n, 388 F.3d 327, 329 (7th
Cir. 2004). Other courts likewise have addressed the possibility of
constructive eviction amounting to constructive discharge. DiCenso v.
Cisneros, 96 F.3d 1004, 1008 (7th Cir.1996); Neudecker v. Boisclair
Corp., 351 F.3d 361, 36465 (8th Cir.2003) (per curiam); Honce v. Vigil, 1 F.3d
1085, 1090 (10th Cir.1993). The courts that have refused applying 3604 to

post acquisition claims have reasoned that if the claims were cognizable,
such causes of action would have been expressly stated in the statute.
Indeed, it was an endeavor that would have required careful drafting in order
to make sure that quarrels between neighbors did not become a routine basis
for federal litigation. Halprin v. Prairie Single Family Homes of Dearborn Park

Ass'n, 388 F.3d 327, 329, 2004 WL 2475106 (7th Cir. 2004)

Overall Issue- Plantiffs have failed to state allegations cognizable under

the FHA
Post Acquisition
Cotenant harassment
Federal Housing Act of 1968
State rules from statute
First section provide fair housing throughout US
3604
3617
To prevail in a discrimination claim under a P must establish
Trafficante (first case for FHA)
Plaintiffs complaint has failed
1. While some courts have applied 3604 and 3617 to postacquisition claims, Plaintiffs case falls outside the scope.
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Statutory language at issue

While circuits are split, traditionally most courts have held
Ps case is distinguishable from the cases that have extended
discrimination to post-acquisition
Pre-Halprin history
Halprin constructive eviction only
Bloch and subsequent Halprin history
Hidden Village- held that 3617 applied, but some evidence existed that
D had discriminated during acquisition as well.
Case Conclusion- some circuits have held post-acquisition actionable, but
this logic is badly decided

Applying the FHA to Plaintiffs case would go against public policy

FHA has been amended before
Amendment is the proper action to extend FHA to post-acquisition
(Administrability)
Judicial action is not the proper form (Justiciability)
i.e. Bloch, Chicago changed municipal code, which was the correct
remedy to a narrow problem of religious symbols placed on doors.

Plaintiffs allege that FHA applies to their claim, and yet courts
History of the act

Purpose- to allow African Americans to integrate & find jobs (great

migration, white flight, riots) This law was passed during a tumultuous time
in history, when African Americans were largely confined to segregated
urban areas despite the social outcry that minorities should not be limited in
their abilities to find adequate housing. After Martin Luther Kings
assassination, it was seen as pertinent that housing be integrated to allow
for social equality in a more competitive job market.

Passed after the Civil Rights Act of 1964 (end discrim employment &
education)
Purpose has been largely fulfilled. (today neighborhoods much more
integrated
Taking the statute as a whole (textual argument) Sale & Rental of
housing

No evidence of discussion as to whether legislature interpreted FHA to

include post-acquisition discrimination

ADA Statute clearly differentiates between post acquisition and pre

acquisition
Because the statute was not intended to apply, Ps cannot claim their case
Despite the FHAs 40 year history, most cases have held that post acquisition
claims are not actionable.

Applying FHA to Plaintiffs case would lead to a flood of litigation

What constitutes discrimination based on protected class, versus simple
disputes?
Would lead to any action by a neighbor resulting in litigation
Higher housing costs for renters, the segment of the population most in
need of affordable housing.

2.

Even if post acquisition claims are actionable under 3604 or

3617, a claim cannot be brought against Defendant for cotenant
harassment.
If post-acquisition claims are actionable, cotenant harassment is far

outside the scope of what courts have determined LLs liability under postacquisition claims.

Plaintiffs allegations do not state LLs actions were direct cause of

discrimination
Only actions from neighbors, none of which are identified by name in
complaint.
P, in essence, wants D to control the actions and to be liable for the
behavior of unnamed parties.
Title VII- brief history
Describe cases which have applied Title VII
Cases are very few

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Ps case is different because

Most cases have not allowed for cotenant liabililty on the part of the LL
because
Title VII is clearly different
Purpose of Title VII is to prevent discrimination in the workplace, not just
acquiring a job
Whereas the FHA, as stated previously, is focused on acquisition
LL has no power to directly control behavior, unlike employer-employee
LL can issue guidelines, whereas an employees behavior has direct,
immediate consequences
Observation of employee behavior is furthermore more easily and
readily available, than a tenant residing in a home.
LL does not observe a tenant on a daily basis, information about
personal behavior is few and far between since interaction is intermittent
Making D liable for cotenant harassment is far outside the scope of the
FHA, and not actionable for the simple reason that
If P is harassed by neighbors, holding LL liable is not the proper remedy
P has other, more easily available remedies
Should assign liability to the party who actually is discriminating
Not the party who simply makes available a dwelling in exchange
for rent
Making a LLs duties include the direct and personal actions of cotenants
is not rational

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Like post-acquisition, this would be an even further violation of public

policy
Would have the opposite effect- LLs discriminating against potential
trouble makers in offering housing to avoid possible litigation
Plaintiffs want to effectively make LLs the insurer of cotenant
discriminatory actions
Increase rents substantially
CONCLUSION
For all of the foregoing reasons, Defendant respectfully requests that
Plaintiff's Complaint be dismissed in its entirety and with prejudice.
Catherine J. Villanueva
Attorney for Quality Properties, Inc.

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