Berk v. Ritz Carlton Condo. Ass'n

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JESSICA BERK AND WILLIAM HENRY KENNEDY, Plaintiffs, v. RITZ CARLTON CONDOMINIUM ASSOCIATION, ET AL. Defendants.

Civ. No. 1:23-cv-1877-NLH-MJS

United States District Court, D. New Jersey

January 22, 2024

JESSICA BERK Appearing pro se.

WILLIAM HENRY KENNEDY^[1] Appearing pro se.

ROBERT ALAN BERNS, KAUFMAN DOLOWICH LLP Counsel for Defendant Ritz Carlton Condominium Association.

STANLEY MARAGOUDAKIS, Appearing pro se.

OPINION

NOEL L. HILLMAN, U.S.D.J.

Before the Court is Defendant Ritz Carlton Condominium Association's Motion to Dismiss (ECF 14), Plaintiffs' Motion to Amend (ECF 26), and Plaintiffs' Motion to Permit Consideration of Reply (ECF 29). For the reasons expressed below, Defendant's Motion to Dismiss will be granted in part and denied in part; Plaintiffs' Motion to Amend will be granted in part and denied in part; and Plaintiffs' Motion to Consider will be granted.

I. BACKGROUND

Plaintiffs are two individuals, Jessica Berk (“Berk” or “Plaintiff Berk”) and William Henry Kennedy (“Kennedy” or “Plaintiff Kennedy”) (collectively, “Plaintiffs”). Plaintiff Berk lives at the Ritz Carlton Condominium building in Atlantic City, New Jersey, where she owns a condominium unit. (First Amended Complaint, ECF 7 at ¶ 14). Plaintiffs do not allege whether Plaintiff Kennedy lives in the Ritz or elsewhere. Plaintiffs allege that Kennedy is disabled. (Id. at ¶ 2). Berk is Jewish and is “visibly disabled.” (Id. at ¶¶ 5-10). She “walks with a cane or wheelchair for support” and has an emotional support service animal, previously a dog named Angeline Jolie and presently a cat named Gemini. (Id. at ¶¶ 2, 23, 76-77). She also has a neurological condition that results in blackouts and passing out. (Id. at ¶ 24). Berk has a number of limitations, including that she cannot carry anything over seven and a half pounds, and she “has problems grasping at things such a doors or using cards.” (Id. at ¶¶ 26-27). She receives social security benefits for her disability. (Id. at ¶ 11). Plaintiffs aver that Kennedy shares the emotional support cat. (Id. at ¶ 2).

Defendants are the Ritz Carlton Condominium Association (“the Ritz” or “Defendant Ritz”), which governs the Ritz Carlton Condominium building Plaintiff Berk resides in, and Stanley Maragoudakis (“Maragoudakis” or “Defendant Maragoudakis”), another resident of the Ritz. (Id. at ¶¶ 14, 16).

Berk alleges that since she has moved into the Ritz, Maragoudakis has “frequently yelled vulgar discriminatory language” at her and other tenants. (Id. at ¶ 16). She avers that he has made offensive comments to her related to her disability and her membership in the LGBTQ community in addition to using anti-Jewish epithets. (Id.). She states that he “attacks seniors and disabled people in the apartment building and on the Boardwalk.” (Id. at ¶ 17). Berk states that the comments include death threats against her and others, as well as against her emotional support cat. (Id. at ¶¶ 21, 28).

Berk explains that these comments and threats are documented through complaints to the Ritz Carlton Condominium Association and the Atlantic City Police Department. (Id. at ¶¶ 19, 21). Berk details one instance of Maragoudakis threatening her, explaining that in March 2022, Maragoudakis was stabbed by another then-resident of the Ritz, Raymond Apponte. (Id. at ¶ 35). Upon leaving the hospital after this stabbing, Berk avers that Maragoudakis threatened to kill her. (Id. at ¶ 36).

Plaintiff Berk alleges that others in the building have also made death threats towards her service dog, and have repeatedly insulted her about her disability. (Id. at ¶ 29).

Plaintiff Berk avers that the Ritz has failed to protect her against Maragoudakis and failed to investigate her complaints against him. (Id. at ¶¶ 32-33, 39, 41-42). Plaintiff Berk also alleges that security guards employed at the Ritz repeatedly mocked her for her disability and would not open the door for her when she was unable due to her disability. (Id. at ¶¶ 29-31).

On April 28, 2023, Plaintiff Berk filed her initial Complaint. (ECF 1). Plaintiffs then filed their First Amended Complaint on May 30, 2023. (ECF 7). This Amended Complaint included an additional Plaintiff, Plaintiff Kennedy, although he had not been a party in the initial Complaint, nor did he pay his own filing fee.^[2] On July 7, 2023, Defendant Ritz Carlton Condominium Association filed a Motion to Dismiss. (ECF 14).

On August 7, 2023, Plaintiffs filed their Response in Opposition. (ECF 19). Plaintiffs filed an additional Response on August 11, 2023. (ECF 21). Defendant Ritz filed its Reply on August 21, 2023. (ECF 24). On August 28, 2023 Plaintiffs filed a letter objecting to the Ritz's Reply brief.^[3] (ECF 25).

Then, also on August 28, 2023, Plaintiffs filed a Motion for Leave to File an Amended Complaint. (ECF 26). Defendant Ritz Carlton filed its Response on September 25, 2023. (ECF 31). Plaintiffs' Reply was due on October 2, 2023. (ECF 30). On October 4, 2023, Plaintiffs filed a letter seeking an extension of that deadline. (ECF 32). On October 8, 2023, Plaintiffs Filed a Motion to Consider their untimely Reply along with their Reply. (ECF 33).

On October 13, 2023, Defendant Maragoudakis filed an Answer.^[4] (ECF 35). Defendant Maragoudakis then filed additional letters on October 23, 2023 (ECF 34), November 3, 2023 (ECF 36), and November 7, 2023 (ECF 38). Although Defendant Maragoudakis had already filed a document that this Court understands to be an Answer, the November 7, 2023 letter is titled “Motion to Dismiss.”^[5] (ECF 38). On November 10, 2023, Plaintiffs filed a letter responding to Defendant Maragoudakis' Answer and letters. (ECF 37). On November 17, 2023, Defendant Maragoudakis filed another letter. (ECF 39).

The First Amended Complaint, which is the operative complaint at this time, alleges the following counts: (1) violations of 42 U.S.C. § 1981 against both named defendants [Counts I and II]; (2) violations of 42 U.S.C. § 1982 against both named defendants [Counts III and IV]; (3) violations of 42 U.S.C. § 3617 against both named defendants [Counts V and VI]; (4) fraud and “FHA financial violations” against the Ritz [Count VII]; (5) violations of the Fair Housing Act against both named defendants [Counts VIII and IX]; (6) Negligent Infliction of Emotional Distress against the Ritz [Count X]; (7) “Negligent Infliction of Emotional Distress, FHA Service animal, and Emotional Support Animal violations” against the Ritz [Count XI]; Breach of Contract against the Ritz [Count XII]; (8) Intentional Infliction of Emotional Distress against both named Defendants [Count XIII]; (9) Invasion of Privacy against “Ritz Carlton Condominium Association Employees and the Does 1-20” [Count IVX^[6]; and (10) Intentional Infliction of Emotional Distress against the Ritz and “the Doe Defendants” [Count VX].

II. SUBJECT MATTER JURISDICTION

This Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331 in that Plaintiffs assert at least one violation of federal law against each of the named Defendants, as well as under § 1367.

III. LEGAL STANDARD FOR MOTION TO DISMISS

When considering a motion to dismiss a complaint for failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6), a court must accept all well-pleaded allegations in the complaint as true and view them in the light most favorable to the plaintiff. Evancho v. Fisher, 423 F.3d 347, 350 (3d Cir. 2005). A pleading is sufficient if it contains “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2).

“While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the ‘grounds' of [her] ‘entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (first alteration added) (second alteration in original) (citation omitted).

To determine the sufficiency of a complaint, a court must take three steps: (1) the court must take note of the elements a plaintiff must plead to state a claim; (2) the court should identify allegations that, because they are no more than conclusions, are not entitled to the assumption of truth; and (3) when there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief. Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 664, 675, 679 (2009) (alterations, quotations, and other citations omitted). A court in reviewing a Rule 12(b)(6) motion must only consider the facts alleged in the pleadings, the documents attached thereto as exhibits, and matters of judicial notice. S. Cross Overseas Agencies, Inc. v. Kwong Shipping Grp. Ltd., 181 F.3d 410, 426 (3d Cir. 1999).

“A motion to dismiss should be granted if the plaintiff is unable to plead ‘enough facts to state a claim to relief that is plausible on its face.'” Malleus, 641 F.3d at 563 (quoting Twombly, 550 U.S. at 570).

IV. DISCUSION OF MOTION TO DISMISS

A. Violations of 42 U.S.C. § 1981 against both named defendants [Counts I and II]

In Counts I and II, Plaintiffs allege violations of 42 U.S.C § 1981. Title 42, Section 1981(a) states that “[a]ll persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject...