Zhu v. Countrywide Realty Co., Inc.

160 F.Supp.2d 1210

Xiangyuan (SUE) ZHU, Plaintiff, v. COUNTRYWIDE REALTY, COMPANY, INC., et al., Defendants.

No. CIV. A. 00-2290-KHV.

United States District Court, D. Kansas.

May 29, 2001.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

David S. Whinery, Lawrence, KS, Xiangyuan Sue Zhu, Topeka, KS, for plaintiff.

Thomas G. Lemon, Todd D. Powell, Fisher, Cavanaugh, Smith & Lemon, P.A., Topeka, KS, for defendants.

MEMORANDUM AND ORDER AND ORDER TO SHOW CAUSE

VRATIL, District Judge.

Xiangyuan (Sue) Zhu brings suit against Countrywide Realty, Company, Inc., Marc E. Bunting, Robert Thomas and Candace Thomas. She alleges that defendants made negligent and/or fraudulent representations during a residential real estate transaction and discriminated against her on the basis of sex and race in violation of the Fair Housing Act, 42 U.S.C. § 3601 et seq., and 42 U.S.C. §§ 1982 and 1983. This matter comes before the Court on defendants' Motion To Strike Plaintiff's Amended Complaint, Or In The Alternative, Motion To Dismiss (Doc. # 27) filed December 7, 2000 and a number of procedural motions. After carefully considering the parties' arguments and authorities, the Court is ready to rule.

Factual Background

In her amended complaint, plaintiff alleges the following facts: On June 12, 1998, plaintiff entered into an option contract to purchase a home from Countrywide Realty, Company, Inc. ("Countrywide"). Wittmer Farm Realty Company, Inc. ("Wittmer") listed the home. Plaintiff dealt with Marc E. Bunting, owner of Countrywide, Bunting Appraisal Services and Bunting Real Estate Services, as well as Robert Thomas and Candace Thomas, who worked for Countrywide. Plaintiff agreed to purchase the home "as is" if repairs listed in an inspection report did not exceed one per cent of the purchase price. The report revealed, however, that needed repairs exceeded that amount. On June 30, 1998, Bunting confronted plaintiff at her office and told her that she was still legally obligated to buy the home and that if she did not do so, he would sue her for $114,000 (the purchase price of the home plus $1,000). Plaintiff and her daughter met Bunting at the property the following day. Plaintiff asked Bunting if the home had any other defects and Bunting again insisted that plaintiff purchase the property. He also told plaintiff that he would take care of the home for her, that she did not need to know anyone else in Topeka, and that she could trust him since he had been in the real estate business for 20 years and owned his own business. On July 2, 1998, Bunting agreed in writing that he would provide certain repairs to the home within eight days after the purchase. Plaintiff relied on Bunting's promise in deciding to buy the home, but Bunting did not complete the repairs by the agreed date.

In July of 1998, plaintiff visited the real estate office to inquire about her home repair and Candace Thomas told her that "[y]ou are good in getting a man." In August of 1998, when plaintiff again visited the real estate office to inquire about her home repair, Candace Thomas told her that "[y]ou are a Chinese" and that "[y]ou'd better find a Chinese man in town." On November 23, 1998, Bunting went to plaintiff's home at 9:45 a.m., supposedly to make repairs. Plaintiff was home due to a work holiday. Apparently Bunting did not make any repairs. Instead, he touched plaintiff's breasts, took off his shirt and asked her to go to bed. These actions made plaintiff fearful and Bunting yelled, "[w]hat are you scared for" and "[h]ave you ever seen a man's back before?" After Bunting and plaintiff had sex, he used her telephone without permission, and learned that a customer was waiting for him at his office to see a house. Upon learning this, he yelled at plaintiff in a gruff and intimidating voice that "[t]his is all your fault." Following this sexual encounter, Bunting would call plaintiff at work with questions about repairs and ask her to go home around 11:00 a.m. to show him the items which needed repair. When plaintiff would do so, however, Bunting would demand sex and not do repairs. After sex, he would tell plaintiff that he would send someone over to do the repairs. On March 23, 1999, Bunting asked plaintiff to go home at 11:15 a.m. to show him a garage door that needed repair. After plaintiff wrote him a check for $625 to cover the materials, he demanded (and received) sexual favors from her.

On March 31, 1999, plaintiff called the real estate office and asked Candace Thomas if Bunting treated his other customers the way he treated her. Bunting called plaintiff back and yelled at her. He said that he was going to hand her over to his attorney and get a restraining order. Bunting still had a key to plaintiff's home, supposedly so he could repair it, and this worried plaintiff. Plaintiff left work and went to the real estate office to tell Candace Thomas that she wanted the key back and that she did not want Bunting close to her home. Candace Thomas replied that plaintiff and Bunting were not to have contact with each other, so everything should go through her. She also asked Bunting to deliver plaintiff's key to the real estate office, so plaintiff could pick it up. Bunting replied that he kept the key at home and that he would deliver it to plaintiff's house. Plaintiff did not want Bunting at her home, so she went home and called 911 to ask for a police officer to protect her when Bunting came over. When Bunting arrived, he said that Candace Thomas had put the restraining order on plaintiff and he told plaintiff in a gruff and intimidating voice that "no one was bigger in Topeka than he was."

At 10:00 a.m. on June 10, 1999, plaintiff discovered that Bunting had blocked her access to his telephone numbers at home and work. On June 14, 1999, Bunting called plaintiff during her lunch hour at work and asked her to met him at her house. When Bunting arrived at the house, he demanded (and again received) sexual favors. He also told plaintiff that another person had requested the telephone blocks. Because of the repeated sexual encounters with Bunting, plaintiff was fearful about going to her house. In June of 1999, plaintiff talked with her daughter on the telephone every day and plaintiff's daughter said that she had a right to refuse Bunting's sexual demands.

On June 30, 1999, Bunting entered plaintiff's home at 6:45 a.m. and sexually assaulted her. On July 1, 1999, plaintiff asked Candace Thomas for the fax number of the real estate office, so that she could make a formal complaint. Thomas refused to give plaintiff the fax number, so plaintiff went to the real estate office to make a handwritten complaint. While plaintiff was at the office, Robert Thomas approached her in a physically threatening manner, yelled at her to leave immediately and never come to the office again, and told her that he would sue her, have the police arrest her and get her fired.

On July 2, 1999, plaintiff told an attorney at work about the sexual abuse which Bunting had inflicted on her. Following the attorney's advice, she went home and told police about the events. Eight months later, on April 28, 2000, plaintiff filed a complaint with the Department of Housing and Urban Development. Since May of 2000, defendants have retaliated against plaintiff, defamed her and intentionally inflicted emotional distress on her. Bunting informed his attorneys that plaintiff had stalked him and engaged in criminal trespass and telephone harassment for two years. In their answer to plaintiff's HUD complaint, defendants accused plaintiff of trying to harm and discredit Countrywide, Marc Bunting, Robert Thomas and Candace Thomas. Defendants filed a defamatory state court action against plaintiff, seeking a permanent restraining order. Plaintiff responded by filing two separate state court actions for permanent restraining orders against Bunting and Thomas G. Lemon, defense counsel. Defendants, but not plaintiff, received restraining orders. As a result of defendants' actions, plaintiff has suffered severe and grievous mental and emotional suffering, fright, anguish, shock, nervousness and anxiety. She continues to be fearful, anxious and nervous. Defendants' actions have forced plaintiff to obtain medical and psychiatric treatment that will continue for an indeterminable length of time.

Procedural Background

Most motions which the Court will discuss in this order arise from the protracted and circuitous procedural history of this and related cases. Plaintiff's original complaint alleged that defendants discriminated against her on the basis of sex, race, national origin and familial status, and interfered with and intimidated her in exercising her right to housing in violation of 42 U.S.C. § 1982 and the Fair Housing Act, 42 U.S.C. § 3601 et seq. In addition, plaintiff alleged that defendants committed common law fraud and negligence and violated 42 U.S.C. § 1983. On July 20, 2000, defendants filed a motion to dismiss (Doc. # 4). Before the Court ruled on this motion, on October 30, 2000, plaintiff filed a Motion To Amend Complaint (Doc. # 15). The Court granted plaintiff's motion to amend and overruled defendants' motion to dismiss as moot. Plaintiff never served her amended complaint. See D. Kan. Rule 15.1(a) (2001). Defendants nonetheless filed a motion to strike or dismiss it and plaintiff responded with two motions to further amend.

The amended complaint, which is the operative complaint at this time, alleges four causes of action: (1) fraud and negligence regarding misrepresentations and nondisclosures made during the real estate transaction; (2) discrimination based on sex and race in violation of the Fair Housing Act of 1988, 42 U.S.C. §§ 3601 and 3604 through 3606; (3) sexual abuse and infliction of emotional distress in violation of 42 U.S.C § 1983; and (4) intentional infliction of emotional distress in violation of Section 818 of the...