Free Reply Brief - District Court of Delaware - Delaware

Case 1:07-cv-00152-JJF

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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 LYNNE ROTAN, REPLY BRIEF IN SUPPORT OF THEIR MOTION TO DISMISS PLAINTIFFS' COMPLAINT

/s/ Daniel A. Griffith DE ID 4209 ____________________________________ 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 Lynne Rotan Dated: May 16, 2007

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TABLE OF CONTENTS TABLE OF AUTHORITIES......................................................................... ii NATURE AND STAGE OF THE PROCEEDINGS..............................................1 ARGUMENT........................................................................................... 2 I. PLAINTIFFS RAISE CONSTITUTIONAL ISSUES IN THEIR ANSWERING BRIEF THAT ARE INAPPLICABLE TO THEIR CASE.................................................................................. 2 A. Constitutional issues cannot arise from the Federal and Delaware Fair Housing Acts, and even if they did as Plaintiffs present, they would not involve Defendants because Defendants are not state actors..... ...................................................... 2 Because Defendants' flag-display policy is uniform as to all tenants and national origins, Plaintiffs are unable to demonstrate that they are entitled to relief under any set of facts, and consequently, to defeat Defendant's Motion to Dismiss............... 4

B.

CONCLUSION......................................................................................... 5

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TABLE OF AUTHORITIES

Barr v. The Camelot Forest Conservation Association, Inc., 153 Fed. Appx. 860 (3d Cir. 2005)......................................................... 3 Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961)................................. 3 Crissman v. Dover Downs Entertainment, Inc., 289 F.3d 231 (3d Cir. 2002)................ 3 Smith v. National Collegiate Athletic Association, 266 F.3d 152 (3d Cir. 2001)............. 3 Tower v. Glover, 467 U.S. 914 (1984).............................................................. 3

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NATURE AND STAGE OF THE PROCEEDINGS Defendants, B'Nai B'Rith Senior Citizen Housing, Inc., Southeastern Property Management, Inc., and Lynne Rotan ("Defendants"), filed a Motion to Dismiss and Opening Brief in support thereof on April 25, 2007. (D.I. Nos. 7 and 8). On May 8, 2007, Plaintiffs Isidore and Bonnie Corwin ("Plaintiffs") filed a Response to Defendants' Motion to Dismiss which the Court construed as their Answering Brief in Opposition to Defendants' Motion to Dismiss. (D.I. No. 9). This is Defendants' Reply Brief in support of their Motion to Dismiss.

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ARGUMENT I. PLAINTIFFS RAISE CONSTITUTIONAL ISSUES IN THEIR ANSWERING BRIEF THAT ARE INAPPLICABLE TO THEIR CASE. A. Constitutional issues cannot arise from the Federal and Delaware Fair Housing Acts, and even if they did as Plaintiffs present, they would not involve Defendants because Defendants are not state actors.

Plaintiffs have based their action on alleged violations by Defendants of the Federal Fair Housing Act, 42 U.S.C. § 3601, et seq., as well as the Delaware Fair Housing Act, 6 Del. C. § 4601, et seq.1 Plaintiffs' Complaint includes two Counts, one arising under the Federal Act,2 and the other under Delaware's version.3 Constitutional issues do not arise from either Act. Stated differently, an alleged violation of either Act does not equate to an alleged infringement on one's Constitutional rights. The Acts are statutory law passed by the Federal and Delaware state legislatures, respectively, but neither implicate the United States Constitution. Nevertheless, despite that Plaintiffs' claims in their Complaint are not at all based upon Constitutional principles, their Answering Brief in Opposition to Defendants' Motion to Dismiss is based entirely on them. Plaintiffs' Answering Brief makes continual mention that Plaintiffs' First Amendment right of free speech was allegedly violated, provides that the appropriate standard of review is the strict scrutiny test, and the like. The issue in the present case, as pled by Plaintiffs themselves, is whether Defendants violated the Federal and Delaware Fair Housing Acts with their policy regarding the display of flags on residents' balconies. The issue is not free speech, whether a Constitutional right was violated, or the Constitution at all. Therefore,

Plaintiffs essentially failed to respond to Defendants' Motion to Dismiss in any meaningful way.

1 2 3

See Plaintiffs' Complaint at ¶ 7 (attached as Exhibit 1). Id. at ¶¶ 83-92. Id. at ¶¶ 93-96.

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Even if Constitutional issues did arise from the two Fair Housing Acts, which they do not, they would not involve Defendants because Defendants are not state actors. It is firmly established that a party alleging a Constitutional violation, whether directly under an Amendment or through 42 U.S.C. § 1983, must do so against a governmental, and not a private, actor.4 All of the Defendants are private actors, unable to violate the Constitutional rights of another. Therefore, even assuming that Plaintiffs were able to raise Constitutional issues under the Fair Housing Acts, Defendants would still be the wrong targets. Defendants acknowledge that there are circumstances under which private actors can be treated as state actors, such as when governmental and private actors are heavily intertwined,5 or even more remotely, when a private actor conspires with state officials to deprive another of their Constitutional rights.6 Clearly, however, neither of these situations is present here.

Governmental and private actors can actually have a connection without the private actor being deemed a state actor, such as with government funding of a private entity. 7 In other words, whether or not Defendant B'Nai B'Rith Senior Citizen Housing, Inc. received Federal funds through the Department of Housing and Urban Development, or any other governmental source, is irrelevant because that Defendant, and in turn the other Defendants, would not be transformed into state actors thereby. Frankly, Plaintiffs' filings to date are inconsistent. Plaintiffs alleged no Constitutional violations in their Complaint, but countered Defendants' Motion to Dismiss with strictly

Barr v. The Camelot Forest Conservation Association, Inc., 153 Fed. Appx. 860, 862 (3d Cir. 2005)(attached as Exhibit 2). 5 See Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961); Smith v. National Collegiate Athletic Association, 266 F.3d 152 (3d Cir. 2001). 6 See Tower v. Glover, 467 U.S. 914 (1984). 7 See Crissman v. Dover Downs Entertainment, Inc., 289 F.3d 231, 243 (3d Cir. 2002)("[T]he Government may subsidize private entities without assuming constitutional responsibility for their actions.")(citation omitted).

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Constitutional theories. This approach only confuses the case's issue as originally pled and leaves Plaintiffs with no meaningful response to Defendants' motion to dismiss. B. Because Defendants' flag-display policy is uniform as to all tenants and national origins, Plaintiffs are unable to demonstrate that they are entitled to relief under any set of facts, and consequently, to defeat Defendant's Motion to Dismiss.

Defendants' entire argument on this point appears in their Opening Brief in support of their Motion to Dismiss and for the sake of brevity will not be duplicated herein. It is

worthwhile to reiterate it generally, however, especially in light of Plaintiffs' Answering Brief that did not address it at all. By Plaintiffs' admission, Defendants' flag-display policy, on its face, does not apply unequally to the tenants. Additionally, there has been no allegation by Plaintiff that the policy is enforced disparately as to the tenants. Therefore, as those are the two bases on which to bring a claim like Plaintiffs', and neither one is shown by Plaintiffs, they are unable to defeat Defendants' Motion to Dismiss and their action fails. Defendants recognize and appreciate Plaintiffs' frustration at not being able to fly the American flag, at least in the manner they would like, but their co-tenants must abide by the same rule because the policy is not geared toward any particular national origin. Were a

neighbor of Jamaican, Irish, Italian, or any other descent allowed to fly their flag in any way they chose under the policy while Plaintiffs were not, Plaintiffs would stand a chance of success in their suit, at least at the pleading stage. Because that is not the case, and the policy is equal as to all tenants, Plaintiffs' suit fails and should be dismissed.

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CONCLUSION For all of the foregoing reasons, as well as those contained in Defendants' Opening Brief in support of their Motion to Dismiss, it is respectfully requested that this Honorable Court dismiss Plaintiffs' Complaint pursuant to Federal Rule of Civil Procedure 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 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 Lynne Rotan Dated: May 16, 2007

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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', B'Nai B'Rith Senior Citizen Housing, Inc., Southeastern Property Management, Inc., and Lynne Rotan, Reply Brief in Support of Their Motion to Dismiss Plaintiffs' Complaint 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: May 16, 2007