Villa v. Collins Court Apartments

1 WO [5] 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA [8] 9 Jeri Christine Villa, No. CV-18-03332-PHX-MTL 10 Plaintiff, ORDER 11 v. 12 Collins Court Apartments, et al., 13 Defendants. [14] 15 Plaintiff Jeri Christine Villa filed suit against seven defendants, alleging violations 16 of the Fair Housing Act and other claims. Before the Court are three Motions to Dismiss, 17 filed respectively by Defendants Collins Court Apartments (“Collins Court”) (Doc. 40), 18 Maricopa Regional Continuum of Care (“MCC”) (Doc. 20), and Human Services Campus, 19 Inc. (“HSC”) (Doc. 76).1 Defendant Community Bridges Inc. (“CBI”) has also filed a 20 Motion for Entry of Final Judgment. (Doc. 109.) The Motions to Dismiss are granted; 21 Plaintiff will be given leave to amend. CBI’s Motion for Entry of Final Judgment is denied. 22 I. BACKGROUND 23 Plaintiff Jeri Christine Villa, pro se, filed the original Complaint on October 17, 24 2018 (Doc. 1), and the First Amended Complaint on October 22, 2018. (Doc. 9.) The Court 25 granted Plaintiff’s request to file a Second Amended Complaint on December 4, 2018. [27] 1 Only Defendant HSC requested oral argument. (Doc. 76.) The Court believes that oral 28 argument would not significantly aid the decisional process. See Fed. R. Civ. P. 78(b) (court may decide motions without oral hearing); LRCiv 7.2(f) (same). 1 (Doc. 13.)2 2 Plaintiff moved into the Collins Court Apartments in Phoenix, Arizona on 3 December 21, 2012. (Doc. 14 at 5.) The Second Amended Complaint states that Plaintiff 4 was a participant in the “Permanent Supportive Housing (PSH) program under the 5 [Continuum of Care] and funded in part by [the Homeless Emergency Assistance and 6 Rapid Transition to Housing Act of 2009].” (Doc. 14 at 5.) The majority of the Second 7 Amended Complaint describes various conflicts and other issues between Plaintiff and 8 other tenants, and between Plaintiff and the apartment’s personnel. It describes, for 9 example, another tenant’s physical attack on Plaintiff following a disagreement (Id. at 5); 10 “[c]onstant harassment, ridicule and intimidating behavior” by the same fellow tenant 11 despite grievances that Plaintiff filed to the Property Manager (Id. at 6); a meeting with a 12 “Peer Support Specialist” who subsequently shared Plaintiff’s “private medical 13 information and other very personal information” with other residents (Id. at 9); and an 14 unjustified citation for having “excessive trash” in the apartment. (Id. at 10.) The Second 15 Amended Complaint alleges that Plaintiff faced discriminatory treatment. (See id. at 19 16 (“The neighbor I had so many problems with was given preferential treatment by all 17 members associated with Collins Court Apartments because she was the only Hispanic 18 tenant and 4 of the 5 Complex staff members were also Hispanic.”)). 19 Plaintiff claims that after receiving two 30-day notices and ultimately an eviction 20 notice, she was “physically removed from [her] apartment on November 3, 2016 by the 21 Constable and not allowed to return until 29 days later to remove [her] property from the 22 apartment.” (Id. at 16.) Plaintiff spent the next 369 days homeless and “had a very hard 23 time finding housing due to the Property Manager’s report of the eviction.” (Id.) Plaintiff 24 demands an award of $10,000,000 for “mental anguish, pain and suffering” as well as [25] 2 The Court previously noted that the original Complaint “offers a confusing narrative 26 rendering the Court unable to determine the plausibility of Plaintiff’s claims.” (Doc. 6.) The Second Amended Complaint, although significantly more detailed than the original [27] Complaint, remains confusing; it is accordingly difficult, if not impossible, to determine 28 the plausibility of Plaintiff’s claims. 1 $1,000,000 “from each Defendant named in this Complaint for violations of my Civil 2 Rights.” (Id. at 20.) 3 Plaintiff named seven defendants in the Second Amended Complaint: Collins Court 4 Apartments; Maricopa Regional Continuum of Care; Arizona Housing, Inc.; Human 5 Services Campus; HOM, Inc.; Dunlap & Magee Property Management, Inc.; and 6 Community Bridges, Inc. Plaintiff states that the defendants are “government entities OR 7 incorporated OR have entered into Partnerships within Maricopa County, AZ AND have 8 entered in to [sic] legal contracts with Maricopa Regional Continuum of Care AND are 9 bound by the laws of the United States of America. They are Applicants AND Recipients 10 OR Recipients OR Sub-recipients of federal grant monies under the Department of 11 Housing and Urban Development (HUD) HEARTH Program and other HUD programs.” 12 (Id. at 2.) 13 Although not entirely clear as to which claims are brought against which defendants, 14 the Second Amended Complaint states that the Court “has jurisdiction in this matter 15 pursuant to TITLE VIII of the Civil Rights Act of 1968 as amended (Fair Housing Act) 16 (FHA) (42 USC 3601); Homeless Emergency Assistance and Rapid Transition to Housing 17 Continuum of Care Program Interim Rule (HEARTH) (24 CFR Part 78), Quid Pro Quo 18 and Hostile Environment Harassment and Liability for Discriminatory Housing Practices 19 Under the Fair Housing Act (QPQHEHLDHP) (24 CFR-100), Health Insurance and 20 Portability and Accountability Act of 1996 (HIPAA), The Fair Credit Reporting Act (15 21 U.S.C. 1681)[.]” (Id. at 1.) 22 Defendants Arizona Housing, Inc. and Dunlap & Magee Property Management, Inc. 23 have answered the Second Amended Complaint. (Docs. 36, 108.) Defendant HOM, Inc. 24 was previously dismissed (Doc. 101) after Plaintiff moved the Court to “dismiss all claims 25 against HOM” (Doc. 81 at 1); judgment has not yet entered. Defendants Collins Court, 26 MCC, and HSC have filed the pending Motions to Dismiss. (Docs. 20, 40, 76.) Defendant 27 CBI was previously dismissed (Doc. 91) after Plaintiff failed to respond to CBI’s Motion 28 to Dismiss. CBI has filed the pending Motion for Entry of Final Judgment. (Doc. 109.) 1 II. MOTIONS TO DISMISS 2 A. Legal Standards 3 1. Rule 12(b)(6) 4 To survive a motion to dismiss, a complaint must contain “a short and plain 5 statement of the claim showing that the pleader is entitled to relief” such that the defendant 6 is given “fair notice of what the . . . claim is and the grounds upon which it rests.” Bell Atl. 7 Corp. v. Twombly, 550 U.S. 545 , 555 (2007) (quoting Fed. R. Civ. P. 8(a)(2); Conley v. 8 Gibson, 355 U.S. 41, 47 (1957)). Dismissal under Rule 12(b)(6) “can be based on the lack 9 of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable 10 legal theory.” Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). The 11 Court must accept Plaintiff’s material allegations as true and construe them in the light 12 most favorable to Plaintiff. North Star Int’l v. Arizona Corp. Comm’n, 720 F.2d 578 , 580 13 (9th Cir.1983). A complaint should not be dismissed “unless it appears beyond doubt that 14 the plaintiff can prove no set of facts in support of the claim that would entitle it to relief.” 15 Williamson v. Gen. Dynamics Corp., 208 F.3d 1144, 1149 (9th Cir. 2000). 16 Review of a Rule 12(b)(6) motion is “limited to the content of the complaint.” North 17 Star Int’l, 720 F.2d at 581 . A district court generally “may not consider any material beyond 18 the pleadings in ruling on a Rule 12(b)(6) motion.” Lee v. City of Los Angeles, 250 F.3d 19 668, 688 (9th Cir. 2001) (citation omitted). If “matters outside the pleadings are presented 20 to and not excluded by the court” on a Rule 12(b)(6) motion, “the motion must be treated 21 as one for summary judgment under Rule 56.” Fed. R. Civ. P. 12(d). There are two 22 exceptions to this general rule. First, a court may consider “material which is properly 23 submitted as part of the complaint” without converting the motion. Lee, 250 F.3d at 688 . 24 The same is true for documents not physically attached to the complaint but whose 25 “authenticity ... is not contested” and “the plaintiff’s complaint necessarily relies” on them. [26] Id. (citing Parrino v. FHP, Inc., 146 F.3d 699 , 705–06 (9th Cir. 1998)). Second, a court 27 may take judicial notice of “matters of public record” without converting the motion to 28 dismiss into a motion for summary judgment. See Lee, 250 F.3d at 689 ; Fed. R. Evid. 1 201(b)(2). 2 2. Rule 12(b)(5) 3 A defendant may move to dismiss, pursuant to Rule 12(b)(5), for insufficient service 4 of process under Rule 4. See Fed. R. Civ. P. 12(b)(5). “Before a … court may exercise 5 personal jurisdiction over a defendant, the procedural requirement of service of summons 6 must be satisfied.” Strong v. Countrywide Home Loans, Inc., 700 Fed. App’x 664, 667 (9th 7 Cir. 2017) (citing Omni Capital Int’l, Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 104 (1987)). 8 The plaintiff bears the burden of establishing the validity of service on a Rule 12(b)(5) 9 motion. See Brockmeyer v. May, 383 F.3d 798, 801 (9th Cir. 2004). 10 B. ANALYSIS 11 1. Collins Court Apartments 12 The Second Amended Complaint names Collins Court, Plaintiff’s apartment 13 complex, as a defendant. (Doc. 14.) Although it references various events that occurred at 14 Collins Court the Second Amended Complaint does not specify any claims against it. 15 Collins Court argues that the Second Amended Complaint should be dismissed for three 16 reasons: Collins Court is not a properly named party, service of process was insufficient, 17 and Plaintiff failed to state a claim. (Doc. 40.) The Court will grant the motion with leave 18 to amend. 19 a. Wrong Party 20 Collins first moves to dismiss pursuant to Rule 12(b)(6)3 because “[n]o entity 21 identified as ‘Collins Court Apartments’ is a legal entity in the State of Arizona.” (Id. at 22 3.)4 Collins Court attaches as Exhibit 2 to its motion an Arizona Corporation Commission [23] 3 Although the motion does not specifically state as much, the Court presumes that this 24 argument is brought under Rule 12(b)(6). See, e.g., v Bispo v. GSW Inc., No. CV. 05-1223PK, 2006 WL 8442912 , at *5 (D. Or. May 17, 2006), report and recommendation adopted, [25] No. 05-CV-1223-PK, 2006 WL 8442911 (D. Or. July 28, 2006) (granting a Rule 12(b)(6) 26 motion on grounds that Plaintiff named the wrong entity); Oland v. Forever Living Prod. Int’l, Inc., No. CV 09-8039-PHX-MHM, 2009 WL 5128658 , at *2 (D. Ariz. Dec. 17, 2009) [27] (addressing Rule 12(b)(6) motion to dismiss arguing that “Plaintiff named the wrong 28 defendant in this lawsuit”). 4 Collins Court noted on its motion that it “appears specially to move this court to dismiss 1 record demonstrating that no such entity is recognized by the State of Arizona. (Doc. 402 2.) Plaintiff has accordingly “brought into this dispute a party against whom no judgment 3 may be procured or other relief ordered” under Rule 17 of the Federal Rules of Civil 4 Procedure. (Doc. 40 at 3.) 5 In response, Plaintiff asserts that “[t]he defendants know that I am a Pro Se Plaintiff 6 and they made a deliberate and exaggerated effort to conceal who the owner is from me in 7 their MOTION in an attempt to confuse me and by filing numerous, duplicated and 8 nonsensical documents thru [sic] CM/ECF.” (Doc. 69 at 3.) The Court notes that this is not 9 accurate; Collins Court has filed only its Motion to Dismiss (Doc. 40) and a motion to seal 10 an exhibit to its Motion to Dismiss (Doc. 64). Nonetheless, in an apparent concession to 11 Collins Court’s argument, Plaintiff was ultimately “able to ascertain” that Collins Court is 12 “indeed, owned and operated by Arizona Housing, Inc. (AHI) with the assistance of Dunlap 13 & Magee Property Manage, Inc. as their Agent[.]” (Id.)5 14 As stated, a court must generally convert a Rule 12(b)(6) motion into a motion for 15 summary judgment under Rule 56 if it considers evidence extrinsic to the complaint. Fed. 16 R. Civ. P. 12(d). However, Exhibit 2 to Collins Court’s motion is a “matter of public 17 record.” See Lee, 250 F.3d at 689 . “A district court may properly take judicial notice of 18 public records filed with the Arizona Corporation Commission because such filings are 19 ‘not subject to reasonable dispute.’” Robinson v. Heritage Elementary Sch., No. CV-0920 0541-PHX-LOA, 2009 WL 1578313 , at *1 n.3 (D. Ariz. June 3, 2009) (citing Fed. R. Evid. 21 201(b); Intri–Plex Technologies, Inc. v. Crest Group, Inc., 499 F.3d 1048, 1052 (9th Cir. 22 2007) (district court may take judicial notice of matters of public record)). The Court notes 23 that Plaintiff did not question or dispute the accuracy of Exhibit 2. Accordingly, the Court 24 takes judicial notice, pursuant to Federal Rule of Evidence 201, that “Collins Court [25] 26 the above captioned action[.]” (Doc. 40 at 1.) 5 In the Conclusion, Plaintiff’s response requests that Plaintiff’s Motion [for] Default [27] Judgment (Doc. 67) be entered against AHI. (Doc. 69 at 5.) That is an entirely separate 28 issue from Collins Court’s Motion to Dismiss, however, and has been separately addressed. (Doc. 100.) 1 Apartments” is not a corporation or other entity recognized under Arizona law.6 The Court 2 therefore agrees with Collins Court that it is a “party against whom no judgment may be 3 procured or other relief granted” under Rule 17 (Doc. 40 at 3.) Accordingly, the Court will 4 grant the motion and dismiss Collins Court from this case. 5 b. Insufficient Service of Process 6 Second, Collins Court moves to dismiss pursuant to Rule 12(b)(5) for improper 7 service of process. The motion states that the individual upon whom the summons and 8 complaint were served (“Legal Owner(s) Collins Court Apartments Attn: Alta Garcia – 9 Property Manager”) was not authorized to accept service of process pursuant to Rule 4(h). 10 (Id.) The motion attaches Plaintiff’s lease agreement, which “identified the person who 11 was authorized to accept service on behalf of that ownership as the ‘statutory agent for 12 Dunlap & Magee Property Management Co., Inc.’” (Id. at 2, Doc. 40-1 at 2.) The Court 13 need not reach this issue because it has already concluded that Collins Court is dismissed 14 from this case. The Court nonetheless emphasizes the importance of compliance with Rule 15 4, should Plaintiff file a Third Amended Complaint. 16 c. Failure to State a Claim 17 Third, Collins Court moves to dismiss under Rule 12(b)(6) for failure to state a 18 claim. Collins Court argues that Plaintiff “raises no issues suggesting that she was harmed 19 by building’s ownership or that there is any factual or legal basis for holding the ownership 20 of that property liable for any harm that she believes she incurred during her tenancy.” (Id. [21] 22 6 Rule 17(b) states that the capacity for an individual to be sued is determined by the law 23 of an individual’s domicile or the law under which a corporation was organized, and “for all other parties, by the law of the state where the court is located, except that: a partnership 24 or other unincorporated association with no such capacity under that state’s law may sue or be sued in its common name to enforce a substantive right existing under the United [25] States Constitution or laws[.]” Fed. R. Civ. P. 17(b). Collins Court is not an individual or 26 corporation under subsections (b)(1) or (b)(2), respectively. Although neither party has specifically addressed this issue, Plaintiff did not allege that Collins Court—the name of [27] an apartment complex—is any other type of party, including a partnership or incorporated 28 association, that is subject to suit. See id.; see also Ariz. R. Civ. P. 17. 1 at 5.) It also states that the Second Amended Complaint “[d]oes not provide any 2 information about her residence at Collins Court Apartments other than the fact that she 3 was physically housed there for almost four years.” (Id.) 4 Although it need not address this issue, the Court agrees with Collins Court that 5 Plaintiff has failed to state a claim against it. Aside from descriptions of various altercations 6 occurring at the apartment complex, the Second Amended Complaint’s references to 7 Collins Court are as follows: “On December 21, 2012 I moved in to Collins Court 8 Apartments as a Participant in the Permanent Supportive Housing (PSH) program” (Doc. 9 14 at 5); “In an attempt to preserve my mental health, I approached [the] Peer Support 10 Specialist assigned to Collins Court for assistance” (Id. at 8); Plaintiff was advised, in the 11 context of receiving a 30-day notice, that “[she] would face trespassing charges if [she] 12 returned to Collins Court for any reason” (Id. at 11); following Plaintiff’s eviction, “[o]n 13 October 17, 2017, I was rejected by an apartment complex who uses the same Attorney for 14 the ‘Legal matters’ as the one that is noted [on] most, if not all the ‘Notices’ given by 15 Collins Court” (Id. at 17); and the statement referenced above that a neighbor was given 16 preferential treatment “by all members associated with Collins Court Apartments” because 17 she was Hispanic. (Id. at 19.) Even construing the facts as favorably for Plaintiff as 18 possible, the Second Amended Complaint does not specify any claims brought against 19 Collins Court. (Doc. 14.) The few specific references to Collins Court do not provide it 20 with “fair notice of what the … claim is and the grounds upon which it rests.” Twombly, 21 550 U.S. at 555. The Court concludes that dismissal of Collins Court is also appropriate 22 for this independent reason. 23 2. Maricopa Regional Continuum of Care 24 MCC is a “Continuum of Care” under the federal Homeless Emergency Assistance 25 and Rapid Transition to Housing: Continuum of Care Program, 77 FR 45422 -01 (July 31, 26 2012), which means that it is a “coordinating body for homeless services and homelessness 27 prevention activities across the geographic area.” (Doc. 20 at 3); 77 FR 45422 -01 at 28 *45426. MCC’s Motion to Dismiss argues that the claims against it should be dismissed 1 because they were not timely filed, and because the Second Amended Complaint fails to 2 state a claim under the Fair Housing Act. (Doc. 20 at 2.) The Court will grant the motion 3 with leave to amend.7 4 a. Untimely 5 MCC first argues that Plaintiff’s claims against it are untimely because Plaintiff 6 exceeded the two-year statute of limitations for bringing a Fair Housing Act claim. (Doc. 7 20 at 4.) MCC states that the last date on which the statute of limitations could have begun 8 to run was November 3, 2016—the date Plaintiff states that she was evicted from her 9 apartment. (Id.) However, MCC was not added to the case until the November 19, 2018 10 lodging of the Second Amended Complaint.8 Accordingly, the two-year statute of 11 limitations has run, “rendering [Plaintiff’s] claim against MCC untimely and barred as a 12 matter of law.” (Id.) 13 In response, Plaintiff argues that the statute of limitations has not run because the 14 alleged discriminatory practice “continues to this day.” (Doc. 51 at 5.) Plaintiff states that 15 she was not permitted to return to the apartment to remove her property until December 2, 16 2016, and that “almost a year later, after searching for an apartment for weeks and 17 submitting an application to another complex,” Plaintiff was turned down due to negative 18 comments on a background check.9 (Id. at 4.) [19] 7 MCC states, in footnote 1 to its Motion to Dismiss, that “MCC is not a legal entity under 20 Arizona law and therefore cannot be sued.” (Doc. 20 at 1 n.1). It states that the appropriate 21 entity, if any, is the Maricopa Association of Governments. The Court does not deem this to be a proper issue for this Motion to Dismiss. The relevant regulation states that a 22 Continuum of Care “might not be a legal entity,” 77 FR 45422 -01 at *45429 (emphasis 23 added), and the “Maricopa Regional Continuum of Care Governance Charter Operating Policies,” referenced in both the Second Amended Complaint and MCC’s Motion to 24 Dismiss, is attached to neither filing. 8 The Second Amended Complaint was filed by the Clerk of the Court on December 4, [25] 2018. 26 9 Plaintiff also appears to argue that she should not be penalized for the fact that as a pro se litigant, “every filing submitted in this case must first be reviewed by the Court.” (Doc. [27] 51 at 5.) Although the Second Amended Complaint was lodged on November 19, 2018, 28 the official filing date was not until December 4, 2018. (Id.) However, given that Plaintiff was evicted on November 3, 2016, the analysis is identical with respect to both dates. 1 As noted, MCC was added as a defendant in this case by the Second Amended 2 Complaint. The Second Amended Complaint’s references to MCC are limited to the 3 following: “Maricopa Regional Continuum of Care and Human Services Campus have 4 been named as additional Defendants” (Doc. 14 at 4); a reference to a document called the 5 “Maricopa Regional Continuum of Care Governance Charter Operating Policies (Rev. 6 3/27/2017)”10 (Id.); “There aren’t any written policies or procedures … that even mention 7 the Maricopa Regional Continuum of Care” (Id. at 18–19); “Who watches over the 8 Program Director? Who makes sure that the person entrusted with the decision, the ‘boots 9 on the ground’, is doing his due diligence to treat all tenants in a fair and equal manner? 10 With RESPECT! With DIGNITY! Without PREJUDICE! Where was the Maricopa 11 Regional Continuum of Care? Who knows!” (Id. at 19); and “It is for these important 12 reasons that I also name the Maricopa Regional Continuum of Care as a Defendant in this 13 matter and as provided for under the Fair Housing Act, Homeless Emergency Rapid 14 Transition to Housing[.]” (Id.) MCC was not referenced in the original Complaint (Doc. 1) 15 or the Amended Complaint. (Doc. 9.) 16 The first issue is the date on which the statute of limitations began to run. The statute 17 of limitations for a Fair Housing Act claim is “2 years after the occurrence or the 18 termination of an alleged discriminatory housing practice[.]” See 42 19 U.S.C. § 3613 (a)(1)(A). In considering statute of limitations issues, a court is to “look at 20 when the operative decision occurred” and to “separate from the operative decisions those 21 inevitable consequences that are not separately actionable.” RK Ventures, Inc. v. City of 22 Seattle, 307 F.3d 1045, 1058 (9th Cir. 2002) (internal citations and quotations omitted). 23 The Supreme Court has held that where a Fair Housing Act plaintiff challenges not just 24 one incident, but rather a continuing practice, the complaint is timely when it is filed within [25] 10 “The entity that oversees PSH; 1 of 3 supporting housing programs defined in HEARTH. 26 The Grant APPLICANT AND RECIPIENT of grant funds OR the RECIPIENT o[f] the Grant. Its duties are to OPERATE the Continuum of Care (C of C); DESIGNATE an [27] HMIS (Homeless Management Information System (dat[a] collection) for the C of C and 28 PLAN for the C of C. – Maricopa Regional Continuum of Care Governance Charter Operating Policies. Rev 2/27/2017” (Id. at 4.) 1 two years of “the last asserted occurrence of that practice.” Havens Realty Corp. v. 2 Coleman, 455 U.S. 363 , 380–81 (1982).11 In other words, “[a] continuing violation is 3 occasioned by continual unlawful acts, not by continual ill effects from an original 4 violation.” Garcia v. Brockway, 526 F.3d 456, 462 (9th Cir. 2008) (citing Ward v. Caulk, [5] 650 F.2d 1144, 1147 (9th Cir. 1981)). 6 Even assuming that Plaintiff is arguing a continuing practice theory of the Fair 7 Housing Act, the Court concludes that, at the latest, the statute of limitations began to run 8 on the date Plaintiff was evicted from her apartment—November 3, 2016. The alleged date 9 on which Plaintiff removed her items from the apartment, and her resulting difficulty in 10 finding another apartment, are more properly characterized as alleged “continual ill 11 effects” than alleged “continual unlawful acts.” Garcia, 526 F.3d at 462 . 12 Accordingly, the second issue is whether the Second Amended Complaint “relates 13 back” to the October 17, 2018 Complaint, or the October 22, 2018 Amended Complaint, 14 with respect to MCC. Rule 15(c) of the Federal Rules of Civil Procedure governs when 15 amended pleadings “relate back” to the date of the original pleading. Fed. R. Civ. P. 15(c). 16 When an amended pleading changes a party or a party’s name—as the Second Amended 17 Complaint did when adding MCC for the first time—the rule requires that “the party to be 18 brought in by amendment … knew or should have known that the action would been 19 brought against it, but for a mistake concerning the proper party’s identity.” Fed. R. Civ. 20 P. 15 (c)(1)(C)(ii). Rule 15(c) “asks what the prospective defendant knew or should have 21 known during the Rule 4(m) period, not what the plaintiff knew or should have known at 22 the time of filing her original complaint.” Krupski v. Costa Crociere S. p. A., 560 U.S. 538 , 23 548 (2010) (emphasis in original). The Complaint and Amended Complaint, both of which 24 made no reference to MCC, did not provide actual or constructive notice to MCC that it 25 would be added to the case. Accordingly, the Court grants MCC’s motion with respect to 26 any Fair Housing Act claim brought against it. 27 The Court notes that the Second Amended Complaint states, “It is for these [28] 11 At the time of Havens, the relevant statute of limitations was 180 days. Id. at 380. 1 important reasons that I also name the Maricopa Regional Continuum of Care as a 2 Defendant in this matter and as provided for under the Fair Housing Act, Homeless 3 Emergency Rapid Transition to Housing[.]” (Doc. 14 at 19) (emphasis added). The latter 4 is an apparent reference to the Homeless Emergency Assistance and Rapid Transition to 5 Housing: Continuum of Care Program, which does not appear to provide for a private right 6 of action. See 77 FR 45422 -01. Nonetheless, Plaintiff will be given leave to clarify any 7 remaining claim against MCC. 8 b. Failure to State a Claim 9 MCC also argues that Plaintiff failed to state a Fair Housing Act claim against it. 10 (Doc. 20 at 5.) Although the Court need not reach this issue, it agrees with MCC that 11 dismissal is also warranted for this reason. A prima facia case of intentional discrimination 12 under the Fair Housing Act requires a showing that “(1) plaintiff’s rights are protected 13 under the Fair Housing Act; and (2) that as a result of defendant’s discriminatory conduct, 14 the plaintiff has suffered a distinct and palpable injury.” Stiles v. Paragon Realty, No. CV 15 07-670-TUC-RCC, 2011 WL 13190186 , at *4 (D. Ariz. Jan. 20, 2011) (citing Harris v. 16 Itzhaki, 183 F.3d 1043, 1051 (9th Cir. 1999)). Based on the Second Amended Complaint’s 17 limited references to MCC, stated above, the Court agrees that Plaintiff has “utterly failed 18 to plead any facts which would give rise to an inference that MCC engaged in any 19 discriminatory practices.” (Doc. 20 at 7.)12 20 Further, Plaintiff has not stated a claim for vicarious liability, even if Plaintiff’s 21 statement “Where was the Maricopa Regional Continuum of Care? Who knows!” (Doc. 14 22 at 19) is generously interpreted as such. The Supreme Court has held that “ordinary, not 23 unusual, rules of vicarious liability should apply” to Fair Housing Act claims. Meyer v. 24 Holley, 537 U.S. 280, 289 (2003). “It is well established that traditional vicarious liability [25] 12 The Court is not convinced by MCC’s argument that nothing in MCC’s Charter “allows 26 it to make decisions regarding the ‘sale or rental of a dwelling,’ or make any dwelling unavailable to any person.” (Doc. 20 at 6.) The Court must accept Plaintiff’s material [27] allegations as true and construe them in the light most favorable to Plaintiff. North Star 28 Int’l, 720 F.2d at 580 . Nonetheless, Plaintiff does not make any allegations that MCC engaged in these practices. 1 rules ordinarily make principals or employers vicariously liable for acts of their agents or 2 employees in the scope of their authority or employment.” Id. at 285. Plaintiff does not 3 allege that any such agency or employment relationship exists. Accordingly, Plaintiff has 4 failed to plead both a “cognizable legal theory or the absence of sufficient facts alleged 5 under a cognizable legal theory” against MCC. Balistreri, 901 F.2d at 699 . Dismissal of 6 MCC is appropriate for the independent reason that Plaintiff has failed to state a claim 7 against it. 8 3. Human Services Campus, Inc. 9 HSC moves to dismiss on grounds that Plaintiff’s claim was untimely and that the 10 Second Amended Complaint fails to state a claim against HSC. The Court will grant the 11 motion with leave to amend. 12 a. Untimely 13 Like MCC, HSC moves to dismiss Plaintiff’s Fair Housing Act claim because it is 14 barred by the two-year statute of limitations. HSC was also added to the case by the 15 November 19, 2018 lodging of the Second Amended Complaint. (Doc. 14.) HSC argues 16 that, based on Plaintiff’s November 3, 2016 eviction date, the two-year statute of 17 limitations expired before the Second Amended Complaint was filed. (Doc. 76 at 3.) 18 In response, Plaintiff states, “there is some sort of ‘partnership’ between HOM, Inc 19 and HSC and between HSC and Arizona Housing, Inc. (AHI)” that Plaintiff did not 20 discover until after the filing of the First Amended Complaint and “until doing more 21 extensive research on the parties named in this matter and their roles in the Permanent 22 Supportive Housing Program I was involved with[.]” (Doc. 89 at 2.) Plaintiff further asserts 23 that each iteration of the Complaint was filed against “Collins Court Apartments, Et Al.,” 24 therefore “indirectly nam[ing] HSC from the filing of the original Complaint on October 25 17, 2018.” (Id. at 3.) Plaintiff asserts that “[i]t is important to know the nature of these 26 partnerships before dismissing them from liability in this matter” and requests that the 27 Court “compel the Defendant to disclose the nature of their partnerships.” (Id. at 4–5.) The 28 Court will not compel Defendants to “disclose the nature of their partnerships” pursuant to 1 Plaintiff’ response to HSC’s Motion to Dismiss. 2 The Second Amended Complaint references HSC only three times: “Maricopa 3 Regional Continuum of Care and Human Services Campus have been named as additional 4 Defendants” (Doc. 14 at 4); a citation to a publication regarding the Permanent Supportive 5 Housing Program13; and “Peer Support Specialists assigned to each complex owned by 6 HSC and AHI.” (Id. at 5.) Even assuming, in the light most favorable to Plaintiff, that 7 Plaintiff intended to bring a Fair Housing Act claim against HSC, the Court agrees that the 8 statute of limitations has expired. For the same reasons as stated with respect to MCC, the 9 two-year statute of limitations pursuant to 42 U.S.C. § 3613 (a)(1)(A) began to run no later 10 than Plaintiff’s November 3, 2016 eviction date. HSC was not added to the case until the 11 November 19, 2018 lodging of the Second Amended Complaint. The Court is not 12 convinced by Plaintiff’s argument that the fact that the Complaint was brought against 13 “Collins Court Apartments, Et Al.,” provided notice to HSC that it would be added to the 14 case. (Doc. 89 at 3.) The Second Amended Complaint therefore does not “relate back” to 15 the earlier pleadings under Rule 15(c). The two-year statute of limitations has expired on 16 any Fair Housing Act claim against HSC. This claim is dismissed. 17 b. Failure to State a Claim 18 HSC also argues that Plaintiff has failed to state a claim against it. (Doc. 76 at 6.) 19 Although it need not reach this issue, the Court agrees. The Second Amended Complaint 20 does not specify any claims against HSC. The scant references to HSC in the Second 21 Amended Complaint, referenced above, allege neither a cognizable legal theory nor 22 sufficient facts to support a cognizable legal theory. Balistreri, 901 F.2d at 699 . For the 23 independent reason that Plaintiff has not provided “fair notice of what the … claim is,” 24 Twombly 550 U.S. at 550, dismissal of HSC is appropriate. [25] 13 “The PSH is operated by HOM, Inc. and includes a partnership with HSC. HOM, Inc. 26 manages the program eligibility and financial rental assistance. HSC partners with AHI to rent units at their properties that are designed to provide supportive services to assist [27] program participants achieve success in housing’.—Human Service Campus Supportive 28 Housing Program, written and published by HOM, Inc. Housing Operations & Management (2012, estimated. No date available)” (Id.). 1 4. Leave to Amend 2 Rule 15(a)(2) of the Federal Rules of Civil Procedure is a liberal standard, stating 3 that “[t]he court should freely give leave [to amend a pleading] when justice so requires.” 4 Fed. R. Civ. P. 15(a)(2). In granting a motion to dismiss, a district court should provide 5 leave to amend unless it is clear that the complaint could not be saved by any amendment. 6 Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). The 7 Ninth Circuit has also recognized that a “rule favoring liberality in amendments to 8 pleadings is particularly important for the pro se litigant. Presumably unskilled in the law, 9 the pro se litigant is far more prone to making errors in pleading than the person who 10 benefits from the representation of counsel.” Noll v. Carlson, 809 F.2d 1446, 1448 (9th 11 Cir. 1987). 12 Exceptions to the general policy of granting leave exist “where the amendment: 13 (1) prejudices the opposing party; (2) is sought in bad faith; (3) produces an undue delay 14 in litigation; or (4) is futile.” AmerisourceBergen Corp. v. Dialysist West, Inc., 465 F.3d 15 946, 951 (9th Cir. 2006). The case has been pending since October 17, 2018 (Doc. 1) and 16 Plaintiff has already amended her complaint twice. The Court is accordingly concerned 17 that further amendment would produce an “undue delay.” Nonetheless, in light of the 18 considerations above, the Court will permit Plaintiff to file a Third Amended Complaint. 19 Unless Plaintiff can assert otherwise, however, amendment would be futile in the following 20 respects: Collins Court is not a legal entity and therefore not a proper party to this lawsuit, 21 and the statute of limitations has expired for a Fair Housing Act claim against both MCC 22 and HSC. 23 III. CBI’S MOTION FOR ENTRY OF JUDGMENT 24 Defendant CBI has filed a motion for entry of partial final judgment pursuant to 25 Rule 54(b) of the Federal Rules of Civil Procedure. (Doc. 109.) Rule 54(b) states that when 26 an action presents more than one claim for relief, “the court may direct entry of a final 27 judgment as to one or more, but fewer than all, claims or parties only if the court expressly 28 determines that there is no just reason for delay. Otherwise, any order or other decision, 1 however designated, that adjudicates fewer than all the claims or the rights and liabilities 2 of fewer than all the parties does not end the action as to any of the claims or parties and 3 may be revised at any time before the entry of a judgment adjudicating all the claims and 4 all the parties’ rights and liabilities.” Fed. R. Civ. P. 54(b). 5 The Court previously dismissed CBI from the case, on grounds that Plaintiff failed 6 to respond to CBI’s Motion to Dismiss and that the Health Insurance Portability and 7 Accountability Act does not provide for a private right of action. (Doc. 91.) The pending 8 motion argues that good cause exists to enter final judgment on all claims against CBI, and 9 states in particular that “CBI should not be forced to incur additional attorneys’ fees and 10 costs just to be dragged along in a case that Plaintiff never should have filed in the first 11 place.” (Doc. 109 at 4.) Plaintiff did not respond to the pending motion. 12 Under Ninth Circuit case law, “[j]udgments under Rule 54(b) must be reserved for 13 the unusual case in which the costs and risks of multiplying the number of proceedings and 14 of overcrowding the appellate docket are outbalanced by the pressing needs of the litigants 15 for an early and separate judgment as to some claims or parties.” Frank Briscoe Co. v. 16 Morrison–Knudsen Co., 776 F.2d 1414, 1416 (9th Cir.1985) (citation omitted). The Court 17 is not convinced that this case is adequately “unusual.” Further, “[a] similarity of legal or 18 factual issues will weigh heavily against entry of judgment under the rule, and in such cases 19 a Rule 54(b) order will be proper only where necessary to avoid a harsh and unjust result[.]” [20] Id. Just as Plaintiff asserted a Fair Housing Act claim against CBI, it also asserted a Fair 21 Housing Act claim against most, if not all, of the Defendants in this case. Accordingly, the 22 Court concludes that granting the “Rule 54(b) request does not comport with the interests 23 of sound judicial administration.” Wood v. GCC Bend, L.L.C., 422 F.3d 873, 879 (9th 24 Cir.2005); See also Lindsay v. Beneficial Reinsurance Co., 59 F.3d 942, 951 (9th Cir.1995) 25 (warning against “[t]he dangers of profligate Rule 54(b) determinations”). The Court 26 denies CBI’s motion to entry of final judgment. 27 / / / 28 / / / IV. CONCLUSION 2 Accordingly, 3 IT IS ORDERED granting Defendant Collins Court Apartments’ Motion to 4|| Dismiss (Doc. 40). 5 IT IS FURTHER ORDERED granting Defendant Maricopa Regional Continuum || of Care’s Motion to Dismiss Plaintiff's Second Amended Complaint (Doc. 20). 7 IT IS FURTHER ORDERED granting Defendant Human Services Campus, 8 || Inc.’s Motion to Dismiss Plaintiff's Second Amended Complaint (Doc. 76). 9 IT IS FURTHER ORDERED allowing Plaintiff 21 days from the issuance of this 10 || Order to file a Third Amended Complaint that conforms with the requirements set forth in 11 || this Order. Because the Court is giving Plaintiff leave to amend, the Clerk of the Court shall not enter judgment at this time. 13 IT IS FINALLY ORDERED denying Defendant Community Bridges, Inc.’s Rule 54(B) Motion for Entry of Final Judgment on All Claims Against Defendant Community 15 || Bridges, Inc. (Doc. 109). 16 Dated this 10th day of February, 2020. [17] Micha To Siburde Michael T. Liburdi 20 United States District Judge [28] -17-