Treece v. Perrier Condo. Owners Ass'n, Inc.

593 F.Supp.3d 422

Dwayne TREECE, et al., Plaintiffs

v.PERRIER CONDOMINIUM OWNERS ASSOCIATION, INC., et al., Defendants

CIVIL ACTION NO. 17-10153

United States District Court, E.D. Louisiana.

Signed March 23, 2022

John Nelson Adcock, Law Office of John N. Adcock, Cashauna Hill, Perry Thompson Graham, Sarah Watson, Louisiana Fair Housing Action Center, Elizabeth Joanne Owen, Peter Franklin Theis, U.S. Equal Employment Opportunity Commission, New Orleans, LA, for Plaintiffs Dwayne Treece, Phallon Treece.

Pierre V. Miller, II, Patrick Hannon Patrick, Patrick Miller, LLC, New Orleans, LA, for Plaintiff Clifford Harlan.

Karen M. Dicke, Lewis Brisbois New Orleans, New Orleans, LA, Brad B. Beers, Pro Hac Vice, Beers Law Firm, Houston, TX, Lauren Fajoni Bartlett, Loeb Law Firm, Mandeville, LA, for Defendants Perrier Condominium Owners Association, Inc., Katherine E. Acuff, Christopher J. Jablonowski, Hanna M. Haile.

ORDER AND REASONS

SECTION: "E" (3)

SUSIE MORGAN, UNITED STATES DISTRICT JUDGE

Before the Court is a motion for summary judgment filed by Defendants the Perrier Condominium Association ("PCOA"), Katherine Acuff, Chris Jablonowski, and Hanna Haile.¹ Plaintiffs Dwayne Treece, Phallon Treece, and Clifford Harlan have filed an opposition.² Defendants have filed a reply.³ Having considered the briefs, the facts, and the applicable law, the Court now issues its ruling.

BACKGROUND ⁴

Plaintiffs Dwayne and Phallon Treece allege that in 2017 they sought to rent a unit in the Perrier Condominium for themselves and their four young children.⁵ The Treeces first contacted Defendant Hanna Haile about renting her unit at the Perrier Condominium.⁶ They allege she did not rent to them because they have young children.⁷

In August 2017, Plaintiffs Dwayne and Phallon Treece, along with their four children, rented a different unit at the Perrier Condominium owned by Plaintiff Clifford Harlan.⁸ Defendants Katherine Acuff, Christopher Jablonowski, and Haile individually own the other three units.⁹ The four unit owners are the sole members of the Perrier Condominium Owner's Association (PCOA), which administers the Perrier Condominium regime.¹⁰ The Treeces allege that, after they moved into their unit, the Defendants took various actions to harass and attempt to evict them based on their having four children living in the unit.¹¹

This case has a long and complex history.¹² In its October 29, 2021, Order and Reasons, the Court clarified which of Plaintiffs’ claims remained pending at that time:

Claim 1. All Plaintiffs’ claims against all Defendants for intentional disparate treatment discrimination under 42 U.S.C. § 3604(a) and implementing regulations, 24 C.F.R. § 100.500, for "adopting occupancy limitations that have the intent ... of making unavailable or denying housing to families with children."

Claim 2. Harlan's claims against all Defendants under 42 U.S.C. § 3604(a) and (b) for "discriminat[ing] against Harlan by refusing to allow him to sell his Unit by discriminating against prospective buyers of Harlan's Unit."

Claim 3. All Plaintiffs’ claims against all Defendants under 42 U.S.C. § 3617 and implementing regulations, 24. C.F.R. § 100.400, for "unlawfully coerc[ing], intimidat[ing], threaten[ing], or interfere[ing] with Harlan, Dwayne, and Phallon in the exercise of, or an [sic] account of their having exercised or enjoyed, their rights granted or protected by the Fair Housing Act, 42 U.S.C. § 3604 on the basis of familial status."

Claim 4. Dwayne and Phallon Treece's claims against Haile under 42 U.S.C. § 3604(a) for intentionally "discriminat[ing] against Dwayne and Phallon Treece by refusing to rent her Unit to them or by otherwise making unavailable or denying that Unit because of their familial status."

Claim 5. Dwayne and Phallon Treece's claims against Haile under 42 U.S.C. § 3604(d) for "discriminat[ing] against Dwayne and Phallon Treece by representing to them that Haile's Unit was not available for rental when such dwelling was in fact so available because of their familial status."¹³

The time for dispositive motions on Claims 4 and 5 passed without motions being filed.¹⁴ Defendants now move for summary judgment on Claims 1-3 listed above.¹⁵

SUMMARY JUDGMENT STANDARD

Summary judgment is appropriate only "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law."¹⁶ "An issue is material if its resolution could affect the outcome of the action."¹⁷ When assessing whether a material factual dispute exists, the Court considers "all of the evidence in the record but refrains from making credibility determinations or weighing the evidence."¹⁸ All reasonable inferences are drawn in favor of the nonmoving party.¹⁹ There is no genuine issue of material fact if, even viewing the evidence in the light most favorable to the nonmoving party, no reasonable trier of fact could find for the nonmoving party, thus entitling the moving party to judgment as a matter of law.²⁰

"[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact."²¹ If the dispositive issue is one on which the nonmoving party will bear the burden of persuasion at trial, the moving party may satisfy its burden of production by either (1) submitting affirmative evidence that negates an essential element of the nonmovant's claim, or (2) demonstrating there is no evidence in the record to establish an essential element of the nonmovant's claim.²²

When proceeding under the first option, if the nonmoving party cannot muster sufficient evidence to dispute the movant's contention that there are no disputed facts, a trial would be useless, and the moving party is entitled to summary judgment as a matter of law.²³ When proceeding under the second option, the nonmoving party may defeat a motion for summary judgment by "calling the Court's attention to supporting evidence already in the record that was overlooked or ignored by the moving party."²⁴ The burden then shifts back to the movant to demonstrate the inadequacy of the evidence relied upon by the nonmovant.²⁵ If the movant meets this burden, "the burden of production shifts [back again] to the nonmoving party, who must either (1) rehabilitate the evidence attacked in the moving party's papers, (2) produce additional evidence showing the existence of a genuine issue for trial as provided in Rule 56(e), or (3) submit an affidavit explaining why further discovery is necessary as provided in Rule 56(f)."²⁶ "Summary judgment should be granted if the nonmoving party fails to respond in one or more of these ways, or if, after the nonmoving party responds, the court determines that the moving party has met its ultimate burden of persuading the court that there is no genuine issue of material fact for trial."²⁷

"[U]nsubstantiated assertions are not competent summary judgment evidence." ²⁸

The opposing party must "identify specific evidence in the record and to articulate the precise manner in which that evidence supports his or her claim. ‘Rule 56 does not impose upon the district court a duty to sift through the record in search of evidence to support a party's opposition to summary judgment.’ "²⁹

FACTS

I. Undisputed Facts

The Perrier Condominium contains four units.³⁰ Plaintiff Harlan and Defendants Acuff, Jablonowski, and Haile each own one of the units.³¹ The four unit owners are the sole members of the Perrier Condominium Owners Association (PCOA), which governs the Perrier Condominium regime.³² The Perrier Condominium is subject to a facially neutral use and occupancy rule included in the Condominium Declaration, which requires 250 square feet per occupant of each unit.³³ According to the Condominium Declaration, the occupancy limit is "to provide for congenial occupation of the Buildings and for the protection of the values of each Unit."³⁴

The Perrier Condominium contains galvanized pipe.³⁵ This pipe is subject to corrosion which constricts flow, thereby reducing water pressure.³⁶ The water pressure at the Perrier Condominium is low.³⁷ A four-unit building like the Perrier Condominium should be serviced by pipes at least seven-eighths of an inch in diameter.³⁸ The Perrier Condominium's walls contain no soundproofing.³⁹ Walls without soundproofing act like a drum and amplify any noise from any unit.⁴⁰ Dawn Laufenburg heard voices and running back and forth in the unit occupied by the Treeces during the day and sometimes during the night.⁴¹

On August 16, 2017, Harlan informed Acuff, Jablonowski, and Haile by email that he had rented his unit to the Treeces.⁴² Acuff, whose unit abuts Harlan's unit, responded by email asking, "When will they be moving in," and later, "How long is their lease? And how many children do they have? They are moving in as I write this and I am listening to a kid screaming through the wall and running all over the floors."⁴³ Haile responded, "this renter, Dwayne, had actually contact [sic] me in regards to renting my unit the very first week I posted it. He came to look with his youngest child. He is a nice guy but I decided the condo was not the best fit as they have 3 small children."⁴⁴ Acuff responded by stating "this could be a serious issue. Reasonable limitations on occupancy are 2 people per bedroom. I don't even know that the systems in this building can handle that many people in one unit."⁴⁵ Jablonowski then asked, "How long is their lease for?"⁴⁶

The next day, Harlan responded to Acuff, Haile, and Jablonowski stating, "Chris, The lease is 9 months, but like I said it's still for sale. Katie, To the best of my knowledge there aren't 3 children, when I asked he said two and only put down 2 on the lease. So I don't think it's over occupancy."⁴⁷ Acuff emailed the unit owners and stated she had conducted a social...