Free Opening Brief in Support - District Court of Delaware - Delaware

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE

ISIDORE CORWIN AND BONNIE CORWIN, Plaintiffs, v. B'NAI B'RITH SENIOR CITIZEN HOUSING, INC., SOUTHEASTERN PROPERTY MANAGEMENT, INC., AND LYNNE ROTAN, an agent, servant or employee of B'Nai B'Rith Senior Citizen Housing, Inc., Defendants.

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C.A. No.: 1:07-cv-00152-***

JURY TRIAL DEMANDED

DEFENDANTS, B'NAI B'RITH SENIOR CITIZEN HOUSING, INC., SOUTHEASTERN PROPERTY MANAGEMENT, INC., AND LYNN ROTAN,'S MOTION TO DISMISS PLAINTIFFS' COMPLAINT PURSUANT TO FED. R. CIV. P. 12 (b)(6) FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED

DANIEL A. GRIFFITH, ESQUIRE Delaware Bar I.D. No. 4209 MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN 1220 N. Market Street P.O. Box 8888 Wilmington, DE 19899-8888 (302) 552-4300 Attorney for Defendants, B'Nai B'Rith Senior Citizen Housing, Inc., Southeastern Property Management, Inc., and Lynn Rotan Dated: April 25, 2007

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TABLE OF CONTENTS Page I. II. III. IV. I. NATURE AND STAGE OF THE PROCEEDINGS............................................................1 SUMMARY OF ARGUMENT ...........................................................................................1 STATEMENT OF UNDISPUTED FACTS ....................................................................2 LEGAL ARGUMENT ....................................................................................................4 SINCE DEFENDANTS' FLAG-DISPLAY POLICY IS UNIFORM AS TO ALL

TENANTS AND ALL NATIONAL ORIGINS, PLAINTIFFS' COMPLAINT DOES NOT ALLEGE THE FACTS NECESSARY TO ESTABLISH THAT THEY WERE DISCRIMINATED AGAINST ON THE BASIS OF THEIR NATIONAL ORIGIN. .............4 V. CONCLUSION...............................................................................................................7

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TABLE OF AUTHORITIES Cases Huntington Branch, NAACP v. Town of Huntington, 844 F.2d 926, 937 (2d Cir.), Aff'd in part, 488 U.S.C. 15, 102 L. Ed. 2d 180, 109, S. Ct. 276 (1988)........................................................9 International Brotherhood of Teamsters v. United States, 431 U.S.C. 324, 335, n.15, 52 L. Led. 2d 396, 97 S.Ct. 1843 (1977)...................................................................................................8 Korrn, et al v. Lacey Township, et al, 78 Fed. Appx. 199 (3d Cir. 2003) .....................................9 Lapid-Laurel, LLC, et al v. Zoning Board of Adjustment of the Township of Scotch Plains, et al, 284 F.3d 442, 466 (3d Cir. 2002) ............................................................................................9 Newark Landlord Association, et al v. The City of Newark, 2003 Del. Ch. LEXIS 66 (decided June 13, 2003).........................................................................................................................8 Resident Advisory. v. Rizzo, 564 F.2d 126, 148 (3d Cir. 1977)...................................................9 Saville v. Quaker Hill Place, 531 A.2d 201, 204 (Del. Supr. 1987)..............................................8 United States of America v. Columbus Country Club, 915 F. 2d 877, 880 (3d Cir. 1990)............7

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I.

NATURE AND STAGE OF THE PROCEEDINGS
Plaintiffs, Isidore and Bonnie Corwin (hereinafter, "the Corwins" or "Plaintiffs") are

residents of the B'Nai B'Rith House Apartments in Claymont, Delaware which are managed and/or owned by the respective Defendants. Plaintiffs contend that the Defendants' policy concerning the manner in which tenants may permissibly display flags discriminates against them on the basis of their national origin in violation of the federal Fair Housing Act, 42 U.S.C. § 3601 et. seq. and the Delaware Fair Housing Act, 6 Del. C. § 4601 et. seq. Plaintiffs seek a declaratory judgment, injunctive relief and compensatory damages. Plaintiffs' Complaint was filed on or about March 15, 2007. This is Defendants' Motion to Dismiss Plaintiffs' Complaint for failure to state a claim upon which relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6).

II.

SUMMARY OF ARGUMENT
As the respective owner and manager of the B'Nai B'Rith House Apartments, Defendants

published to all tenants a policy concerning the permissible display of flags outside the tenants' units. Specifically, the policy permitted tenants to place a flag on a stick in a flower pot or drape a flag on a balcony chair, but prohibited the draping of flags on the tenants' balconies. The policy applies uniformly to all residents and all types of flags, regardless of national origin. Plaintiffs claim in this action that their status as Americans places them in a "protected class" as that term is defined under federal and state law. Plaintiffs further contend that, notwithstanding the policy's uniform application to all flags regardless of national origin, the

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policy discriminates against Americans such as the Plaintiffs in violation of the state and federal Fair Housing Acts. By Plaintiffs' admission, the policy on its face applies to each tenant regardless of that tenant's national origin. In addition, the impact of policy on the Plaintiffs is no greater or less than the impact on any other tenant of any other national origin. As such, as a matter of law, Plaintiffs cannot meet the fundamental requirements of the statutes under which they seek relief, 42 U.S.C. § 3601, et. seq. (the federal Fair Housing Act) and 6 Del. C. § 4601 et. seq. (the Delaware Fair Housing Act). Consequently, their Complaint must be dismissed as a matter of law pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted.

III.

STATEMENT OF UNDISPUTED FACTS 1
1. Plaintiffs were accepted as tenants at the B'Nai B'Rith House Apartments

in Claymont on September 24, 2992 and moved into Apartment 608 on October 25, 1992. (See Exhibit "A", ¶ 32). 2. Defendants are the owner and property managers for the Apartments. (See

Exhibit "A", generally ¶ 3-6). 3. In the 14 ½ years of their tenancy, Plaintiffs have raised numerous

complaints against the Defendants (See Exhibit "A", ¶ 56-75). Specifically, in their Complaint, Plaintiffs identify approximately 16 separate complaints (unrelated to the dispute which is the subject of this litigation) which they have previously made against Defendants during their tenancy, ranging from second hand smoke from a neighbor's unit (paragraph 62) to the denial of
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The following facts are derived purely from Plaintiffs' Complaint.

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Plaintiffs' request to include two Christian holy days in Defendants' newsletter calendar. (Paragraph 73.) (See, Exhibit "A", ¶ 56-76). 4. In the wake of September 11, 2001, following proper notice to their

tenants, Defendants' affixed onto the tenants' balcony rails polyester American flags. (See Exhibit "A", ¶ 34). 5. As the week of October 17, 2004 approached (at which time Defendants

would be hosting the B'Nai B'Rith International Senior Housing Convention), Defendants directed that the flags be removed inasmuch as they had become worn and tattered after having been displayed outside in that fashion for over 3 years. (See Exhibit "A", ¶ 41). 6. Following Defendants' removal of the American flag from the tenants'

balconies, Plaintiffs placed their own 3' x 5' American flag on their balcony wall. (See Exhibit "A", ¶ 44). Defendants took no immediate action to remove Plaintiffs' flag at that time. (See Exhibit "A", ¶ 46). 7. On September 15, 2006, Defendants' advised that flags are not permitted

on balconies and requested all tenants who had placed them on their balconies to remove them. (See Exhibit "A", ¶ 47-48). 8. On or about July 27, 2006, Plaintiffs filed a Complaint with the

Department of Housing and Urban Development ("HUD"), charging that the policy reflected in Defendants' September 15, 2006 Memorandum represented discrimination on the basis of national origin. (Exhibit "A", ¶ 52-53).

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9.

On or about September 18, 2006, Defendants issued a Memorandum to all

tenants stating that a flag (of any origin) may be put on a stick in a flower pot or draped on a chair, but stating that tenants could not hang flags on the tenants' balconies. (Exhibit "A", ¶ 54). 10. The Defendants' rules with respect to tenants' display of flags is uniform

as to all tenants and to all manners of flag, regardless of national origin. Nevertheless, Plaintiffs filed this action on March 15, 2007, claiming that Defendants' rules discriminated against Plaintiffs on the basis of their national origin (i.e., Americans) in violation of both the federal and state Fair Housing Acts.

IV.

LEGAL ARGUMENT
I. SINCE DEFENDANTS' FLAG-DISPLAY POLICY IS UNIFORM AS TO ALL TENANTS AND ALL NATIONAL ORIGINS, PLAINTIFFS' COMPLAINT DOES NOT ALLEGE THE FACTS NECESSARY TO ESTABLISH THAT THEY WERE DISCRIMINATED AGAINST ON THE BASIS OF THEIR NATIONAL ORIGIN. The federal Fair Housing Act, 42 U.S.C. § 3601 et. seq. makes it unlawful "to make,

print, or publish, or cause to be made, printed, or published, any notice, statement or advertisement, with respect to the sale or rental of a dwelling that indicates any preference, limitation, or discrimination based on race, color, religion, sex, handicap, familial status, or national origin, or an intention to make any such preference, limitation, or discrimination". 42 U.S.C. § 3604 (c). See, also United States of America v. Columbus Country Club, 915 F. 2d 877, 880 (3d Cir. 1990). In the same way, the Delaware Fair Housing Act, 6 Del. C. § 4601 et. seq. makes it unlawful to "discriminate 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, national origin, religion, creed, sex, marital status, familial status, age or

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handicap. 6 Del. C. § 4607 (2). Newark Landlord Association, et al v. The City of Newark, 2003 Del. Ch. LEXIS 66 (decided June 13, 2003) (Exhibit "B"). The federal Fair Housing Act and the Delaware Fair Housing Act have "similarity in structure, language and purpose". Newark Landlord Association, et al supra, at 37. There is also "considerable overlap" between analysis under these statutes and other federal antidiscrimination statutes, including Title VII (discrimination in employment). Id. Courts therefore look to each of these bodies of law for guidance in analyzing claims under the housing discrimination statutes. Id. There are two "families of discrimination claims" under the Fair Housing Acts: a plaintiff can show either (1) discriminatory treatment; or (2) discriminatory effect. "Disparate treatment occurs when a decision maker 'simply treats some people less favorably than others because of a protected trait' ". Saville v. Quaker Hill Place, 531 A.2d 201, 204 (Del. Supr. 1987), quoting International Brotherhood of Teamsters v. United States, 431 U.S.C. 324, 335, n.15, 52 L. Led. 2d 396, 97 S.Ct. 1843 (1977). Conversely, when a decision maker's practices are facially neutral in their treatment of different groups but in fact unjustifiably disadvantage one or more groups, a claim for disparate impact exists. Id. Here, Defendants' policy prohibiting the display of flags applies on its face to all tenants and all manners of flag, regardless of national origin. As such, it is facially neutral. Indeed, it does not appear that Plaintiffs claim otherwise. To the contrary, Plaintiffs only claim seems to be that the enforcement of the policy has a disparate impact on them as "natural citizens" of the United States of America.

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A. Plaintiffs Cannot Establish That Defendants' Flag-Display Policy Has A Disparate Or Discriminatory Effect. In Resident Advisory. v. Rizzo, 564 F.2d 126, 148 (3d Cir. 1977), the Third Circuit Court of Appeals joined the ranks of several other circuits which held that, in order to establish a prima facie case under the federal Fair Housing Act, a plaintiff must show "that the challenged action by defendant had a ... discriminatory effect". This holding has been reiterated in subsequent decisions. See Korrn, et al v. Lacey Township, et al, 78 Fed. Appx. 199 (3d Cir. 2003); LapidLaurel, LLC, et al v. Zoning Board of Adjustment of the Township of Scotch Plains, et al, 284 F.3d 442, 466 (3d Cir. 2002). Discriminatory effect may be proved by showing either "adverse impact to particular minority group" or "harm to the community generally by their perpetuation of segregation". Korrn, et al v. Lacey Township, et al, quoting Huntington Branch, NAACP v. Town of Huntington, 844 F.2d 926, 937 (2d Cir.), aff'd in part, 488 U.S. 15, 102 L. Ed. 2d 180, 109, S. Ct. 276 (1988). In this instance, the Defendants' flag-display policy is uniform on its face. More importantly, the impact of the flag-display policy on each tenant is the same. Plaintiffs do not allege that non-American flags are permitted to be displayed or that other tenants are permitted to display the flag in a fashion that the Plaintiffs cannot. Under the circumstances, even accepting as true each and every allegation in Plaintiffs' Complaint, the flag-display policy has no disparate impact on the Plaintiffs. In Korrn v. Lacey Township, et al, supra, plaintiffs alleged that the defendant-township's enactment of an animal control ordinance violated their rights under the Fair Housing Act (among other statutes) because it was motivated by racial animus. In dismissing plaintiffs' claim under the Fair Housing Act, the Third Circuit Court of Appeals observed:

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(Plaintiffs) make no showing that the Ordinance affects "a particular minority group". The Ordinance affects all township citizens, white and minority alike. Nor is there any evidence that the Ordinance is likely to affect the township's citizens along racial lines. As the District Court stated, "the fact that the first person an Ordinance affects is a person of color does not negate the fact that such Ordinance is a legitimate governmental exercise". (Citation omitted). As a result, (Plaintiffs) cannot sustain a claim under § 3604(a) of the Fair Housing Act. The flag-display policy which is at issue here has no impact upon Plaintiffs beyond the impact it has on every tenant, regardless of that tenant's national origin. The Corwins make no showing that the flag-display policy affects a "particular minority group". To the contrary, the flag-display policy affects all tenants, Americans and non-Americans alike. In essence, Plaintiffs are aggrieved because they would like to display their American flag in a manner prohibited by the flag-display policy. Their disenchantment, however, does not render them victims of discrimination under the federal or state Fair Housing Acts. In sum, the flag-display policy challenged by the Plaintiffs is facially neutral and apply uniformly to all tenants regardless of their national origin. The impact of the policy is the same as to each and every tenant. As such, Plaintiffs cannot establish a prima facie case of discrimination under the federal or state Fair Housing Acts.

V.

CONCLUSION
For all of the foregoing reasons, it is respectfully requested that this Honorable Court

dismiss Plaintiffs' Complaint pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted.

/s/ Daniel A. Griffith DE ID 4209 DANIEL A. GRIFFITH, ESQUIRE

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE

ISIDORE CORWIN AND BONNIE CORWIN, Plaintiffs, v. B'NAI B'RITH SENIOR CITIZEN HOUSING, INC., SOUTHEASTERN PROPERTY MANAGEMENT, INC., AND LYNNE ROTAN, an agent, servant or employee of B'Nai B'Rith Senior Citizen Housing, Inc., Defendants.

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C.A. No.: 1:07-cv-00152-***

JURY TRIAL DEMANDED

ORDER This matter having been brought before the Court by Daniel A. Griffith, Esquire of Marshall, Dennehey, Warner, Coleman & Goggin, attorneys for the Defendants; and the Court having considered the moving papers and any opposition filed thereto; and having heard the arguments of counsel; and for other and further good cause shown; It is on this day of , 2007, hereby ORDERED and

ADJUDGED that Plaintiffs' Complaint be and hereby are DISMISSED pursuant to Fed. R. Civ. P. 12 (b)(6) for failure to state a claim upon which relief can be granted.

J.

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE

ISIDORE CORWIN AND BONNIE CORWIN, Plaintiffs, v. B'NAI B'RITH SENIOR CITIZEN HOUSING, INC., SOUTHEASTERN PROPERTY MANAGEMENT, INC., AND LYNNE ROTAN, an agent, servant or employee of B'Nai B'Rith Senior Citizen Housing, Inc., Defendants.

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C.A. No.: 1:07-cv-00152-***

JURY TRIAL DEMANDED

CERTIFICATE OF SERVICE I, Daniel A. Griffith, Esquire hereby certify that on the date indicated below a true and correct copy of Defendants' Notice of Motion to Dismiss Plaintiffs' Complaint pursuant to Fed. R. Civ. P. 12(b)(6), Opening Brief in support of the Motion, and proposed Order were forwarded to the below named addressee via electronic filing and U.S. Mail, postage pre-paid: Isidore Corwin Bonnie Corwin B'Nai B'Rith House 8000 Society Drive Apartment #608 Claymont, DE 19703-1749 MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN /s/ Daniel A. Griffith, Esquire DE ID 4209 DANIEL A. GRIFFITH, ESQUIRE Delaware Bar I.D. No. 4209 1220 N. Market Street P.O. Box 8888 Wilmington, DE 19899-8888 (302) 552-4300 Attorney for Defendants Dated: April 25, 2007