Greater New Orleans Fair Housing Action Center v. Kelly, et al, No. 2:2018cv08177 - Document 28 (E.D. La. 2019)
Court Description: ORDER AND REASONS denying 9 Motion to Dismiss for Lack of Jurisdiction; 25 Renewed Motion to Dismiss for Failure to State a Claim. For the reasons stated above, defendants' motion to dismiss and alternative motion to strike is DENIED. Signed by Judge Sarah S. Vance on 1/31/2019. (cg)
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Greater New Orleans Fair Housing Action Center v. Kelly, et al Doc. 28 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA GREATER NEW ORLEANS FAIR HOUSING ACTION CENTER VERSUS CIVIL ACTION NO. 18-8177 J ERRY W. KELLY, J R., ET AL. SECTION “R” (2) ORD ER AN D REASON S Before the Court is defendants’ m otion to dism iss the case under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), or in the alternative to strike sections of the com plaint. The Court finds that (1) plaintiff has sufficiently alleged it has standing to bring this action, (2) plaintiff’s factual allegations are sufficient to state each of its claim s, and (3) the paragraphs in the com plaint to which defendants object are relevant to plaintiff’s claim s. Defendants’ m otion is therefore denied. I. BACKGROU N D A. Plain tiff’s In itial In ve s tigatio n This case arises from allegations of sex-based housing discrim ination. 1 Plaintiff, the Greater New Orleans Fair Housing Action Center, alleges that 1 R. Doc. 1. Dockets.Justia.com defendant J erry W. Kelly, J r., the owner and/ or m anager of m ultiple rental properties throughout the New Orleans area, 2 has discrim inated against tenants on the basis of their sex. 3 Plaintiff asserts that it first became aware of allegations of sex-based discrim ination against Kelly in March 20 17, after seeing statem ents from his form er and current tenants in a “social m edia housing-related forum .”4 In the forum, som e of Kelly’s former fem ale tenants allegedly detailed how Kelly exhibited “sexually harassing behavior” towards them, including by m aking “sexual propositions” and “unauthorized and unannounced entry into their apartments.”5 Then, in August 20 17, a “former leasing agent” for Kelly’s rental properties allegedly contacted plaintiff to report that Kelly had engaged in a “pattern of sex-based discrim ination.”6 The agent allegedly told plaintiff that she observed Kelly turn away m ore qualified m en in order to rent to wom en, and that Kelly preferred to rent to “young, skinny, white” girls. 7 The agent also allegedly told plaintiff stories sim ilar to those recounted in the social m edia forum —nam ely, that Kelly harassed his fem ale 2 3 4 5 6 7 Id. at 4 ¶ 12. Id. at 2 ¶ 2. Id. at 6 ¶ 23. Id. ¶ 24. Id. at 7 ¶ 26. Id. ¶¶ 27-28. 2 tenants by m aking sexual propositions and unauthorized and unannounced entry into their apartm ents. 8 Plaintiff states that it then conducted interviews with two of Kelly’s form er fem ale tenants. 9 The first form er tenant—whom plaintiff refers to as “A.B.”—allegedly said that all six of the units in her building were rented to wom en, and that Kelly specifically told her he rents to wom en only. 10 A.B. also allegedly reported that Kelly told her he would reduce her rent if she “set him up on a date” with one of her fem ale friends. 11 According to plaintiff, the second form er tenant, “B.C.,” alleged that when she met with Kelly to sign her lease agreem ent, Kelly told her he returned her initial phone call only because he believed she was attractive based on the sound of her voice, and that he would not have rented to her had he known she was m arried. 12 B.C. also allegedly told plaintiff that Kelly grabbed her buttocks without her consent during this m eeting. 13 Finally, B.C. allegedly told plaintiff that Kelly repeatedly entered her apartm ent without warning and without her consent, including once when she was in the shower. 14 8 9 10 11 12 13 14 Id. ¶ 29. Id. ¶ 31. Id. at 8 ¶¶ 32-33. Id. ¶ 36. Id. at 9 ¶¶ 39-40 . Id. at 8 ¶ 38. Id. at 9 ¶ 41. 3 B. Plain tiff’s Te s te rs Plaintiff asserts that after compiling the inform ation from the online forum , the form er leasing agent, and the form er tenants, it decided to com m ence a series of tests to assess whether Kelly was engaging in unlawful discrim ination. 15 In April and May 20 17, and then again in October 20 17, plaintiff allegedly sent different pairs of prospective renters—each pair consisting of one male and one female tester—to inquire about renting one of Kelly’s units advertised as available. 16 1. Test 1 On April 26, 20 17, fem ale tester # 1 allegedly called Kelly at the phone num ber included on a rental listing for 4233 Fontainebleau Drive in New Orleans. 17 According to plaintiff, the advertisement listed apartment num ber 7 at this address as available. 18 Plaintiff asserts that Kelly answered the call and arranged for female tester # 1 to view the unit on April 29. 19 On April 27, one day after female tester # 1 called, m ale tester # 1 allegedly called the same phone num ber listed in the advertisem ent. 20 Kelly allegedly did not 15 16 17 18 19 20 Id. ¶ 42. Id. at 9-18. Id. at 10 ¶ 46. Id. ¶ 44. Id. ¶ 46. Id. ¶ 47. 4 answer this call, and the m ale tester left a voicem ail m essage stating his interest in the advertised apartm ent and asking Kelly to call him back. 21 Plaintiff states that Kelly never returned the m ale tester’s voicem ail. 22 On April 29, fem ale tester # 1 and her fem ale companion allegedly viewed the rental unit unaccom panied by Kelly. 23 Plaintiff alleges that fem ale tester # 1 contacted Kelly after viewing the apartm ent, and Kelly invited her to m eet with him to discuss the unit and review a rental application. 24 Plaintiff asserts that during this m eeting, female tester # 1 and her friend observed Kelly “openly staring at their bodies and nibbling his lip as he looked at [fem ale tester # 1’s] legs.”25 According to plaintiff, female tester # 1 and her friend reported feeling unsafe during this encounter. 26 Plaintiff states that after this meeting fem ale tester # 1 did not contact Kelly again. 27 2. Test 2 On May 3, 20 17, fem ale tester # 2 allegedly called Kelly to inquire about 4233 Fontainebleau Drive apartment num ber 7, which was still advertised as 21 22 23 24 25 26 27 Id. Id. at 11 ¶ 56. Id. at 10 ¶ 48. Id. ¶ 49. Id. at 11 ¶ 53. Id. ¶ 54. Id. ¶ 55. 5 available. 28 Plaintiff states that Kelly answered the phone and arranged to m eet with the fem ale tester to tour the unit the following day. 29 According to plaintiff, two hours after fem ale tester # 2’s call, male tester # 2 called the same num ber. 30 Kelly allegedly did not answer the call, and the m ale tester left a voicem ail message asking Kelly to call him back. 31 On May 4, 20 17, fem ale tester # 2 and her fem ale com panion allegedly m et Kelly at 4233 Fontainebleau Drive. 32 Plaintiff alleges that Kelly explained that apartm ent num ber 7 had been rented, but that he could show them apartm ent number 3, which was available. 33 Plaintiff asserts that on May 9, 20 17, six days after his first call, m ale tester # 2 tried again to contact Kelly. 34 Kelly allegedly answered the phone, and arranged to meet m ale tester # 2 the following day to view a unit at 4233 Fontainebleau Drive. 35 Kelly allegedly instructed the m ale tester to call him the following m orning to confirm the appointm ent. 36 The next m orning m ale tester # 2 allegedly called Kelly two different tim es, but Kelly did not answer 28 29 30 31 32 33 34 35 36 Id. at 12 ¶ 58. Id. Id. ¶ 59. Id. Id. ¶ 61. Id. ¶ 62. Id. ¶ 63. Id. Id. 6 either call. 37 Plaintiff asserts that m ale tester # 2 left Kelly voicem ails on both calls, but Kelly never responded to the m essages. 38 Male tester # 2 was allegedly never able to tour an available unit. 39 3. Test 3 According to plaintiff, on the same day that Kelly did not respond to the voicem ail m essages from male tester # 2 confirm ing their appointm ent, fem ale tester # 3 called Kelly to inquire about the listing for apartment num ber 7 at 4233 Fontainebleau Drive. 40 Kelly allegedly answered her call and m ade an appointm ent for her to view an available apartm ent. 41 Two days later, female tester # 3 and her fem ale com panion toured apartm ent number 3 with Kelly, the sam e unit he showed to fem ale tester # 2. 42 Plaintiff asserts that while they were viewing the apartm ent, Kelly “slam med the door shut to the apartment,” which m ade both women concerned for their safety. 43 After Kelly provided female tester # 3 with an application, she allegedly told Kelly that she planned to view other apartm ents. 44 37 38 39 40 41 42 43 44 Id. at 13 ¶¶ 64-68. Id. Id. ¶ 69. Id. ¶ 70 . Id. ¶ 71. Id. at 14 ¶¶ 72-73. Id. ¶¶ 74-76. Id. ¶ 78. 7 According to plaintiff, shortly after fem ale tester # 3 m et with Kelly, m ale tester # 3 contacted Kelly to ask about the apartm ent at 4233 Fontainebleau Drive advertised as available. 45 Kelly allegedly told the m ale tester that the unit had already been rented and ended the call. 46 Kelly allegedly did not tell m ale tester # 3 about any other available units in the same building, as he had for female testers # 2 and # 3. 47 Three days after this phone call with m ale tester # 3, Kelly allegedly contacted fem ale tester # 2 and told her that apartm ent num ber 3 at 4233 Fontainebleau Drive was still available. 48 On that sam e day, a new female tester allegedly contacted Kelly and left him a voicem ail asking about available rentals at 4233 Fontainebleau Drive. 49 Several days later, Kelly called the tester back, and left her a voicem ail stating he was returning her call regarding a unit at 4233 Fontainebleau Drive. 50 4. Test 4 On October 3, 20 17, fem ale tester # 4 allegedly left Kelly a voicem ail m essage inquiring about an advertised unit at 7927 Birch Street in New 45 46 47 48 49 50 Id. at 14-15 ¶ 79. Id. at 15 ¶ 80 . Id. Id. ¶ 81. Id. ¶ 82. Id. ¶ 83. 8 Orleans. 51 Plaintiff asserts that Kelly returned her m essage the following m orning, and that they eventually arranged for the fem ale tester to view the apartment on October 6, at noon. 52 On October 5, m ale tester # 4 allegedly contacted Kelly to inquire about the sam e advertised unit. 53 Kelly allegedly answered the phone call, and m ade an appointment for the m ale tester to view the unit on October 6 at 2 p.m ., two hours after fem ale tester # 4’s appointm ent. 54 According to plaintiff, Kelly instructed the m ale tester to call him on the m orning of their appointment to confirm it. 55 Plaintiff asserts that during fem ale tester # 4’s tour of the unit, Kelly told her she was “an all grown up woman” and that she was too “pristine and together” to live at that property. 56 When the fem ale tester inquired about the application process, Kelly allegedly told her that she need only fill out a rental application, and that he would forgo the usual credit check because she was a “grown wom an” who “looked like she was valedictorian at her college.”57 51 52 53 54 55 56 57 Id. ¶ 84. Id. at 15-16 ¶¶ 85-86. Id. at 16 ¶ 87. Id. Id. Id. ¶ 89. Id. ¶ 91. 9 On that same m orning, m ale tester # 4 allegedly followed Kelly’s instructions and contacted him to confirm their appointment. 58 According to plaintiff, the male tester was unable to reach Kelly until late in the afternoon, at which point Kelly told him that he could not show the tester the unit that day as they had planned. 59 Kelly allegedly agreed to show the unit to the m ale tester three days from the date of their originally scheduled appointm ent. 60 Plaintiff asserts that on the day of their rescheduled appointm ent, Kelly allegedly left a key for m ale tester # 4 in the m ailbox at the unit, and instructed him to view the apartment on his own. 61 Plaintiff asserts that m ale tester # 4 later called Kelly to inquire about the application process. 62 Kelly allegedly told him that they could m eet in two days to discuss the process, and that the m ale tester should bring his driver’s license, proof of em ploym ent, current lease, and a deposit check for $ 950 . 63 Plaintiff alleges that Kelly never followed up with m ale tester # 4 after this call. 64 58 59 60 61 62 63 64 Id. at 16-17 ¶ 93. Id. at 17 ¶¶ 94-97. Id. ¶ 98. Id. ¶ 99. Id. ¶ 10 0 . Id. at 17-18 ¶¶ 10 1-0 2. Id. at 18 ¶ 10 3. 10 C. Plain tiff’s Co m p lain t an d Su bs e qu e n t D e ve lo p m e n ts On August 28, 20 18, plaintiff filed this com plaint in federal court against (1) Kelly; (2) 4233 Fontainebleau Dr NOLA LLC; 65 (3) 7927 ½ Birch St NOLA LLC; 66 and (4) Investment Properties of J &L, LLC, 67 alleging violations of the Fair Housing Act (FHA) and the Louisiana Equal Housing Opportunity Act. 68 Plaintiff alleges that defendants (1) refused to rent and m ade housing unavailable to a person on the basis of sex, (2) discrim inated against a person in the term s, conditions, and privileges of renting housing on the basis of sex, and (3) m ade statem ents indicating rental preferences, lim itations, and discrim ination based upon sex. 69 Plaintiff seeks a declaratory judgm ent that defendants have violated federal and state law, and an injunction enjoining defendants from discrim inating against any 65 4233 Fontainebleau Dr NOLA LLC is allegedly the m anager of the property comprising the rental units at 4233 Fontainebleau Drive. Id. at 5 ¶ 15. 66 7927 ½ Birch St NOLA LLC is allegedly the m anager of the property com prising the rental units at 7927 Birch Street. Id. ¶ 16. 67 Investm ent Properties of J &L, LLC is allegedly the prim ary officer and m anager of both 4233 Fontainebleau Dr NOLA LLC and 7927 ½ Birch St NOLA LLC. Id. at 6 ¶¶ 21-22. 68 See id at 1, 19-21. 69 Id. at 19-21. 11 person on the basis of sex. 70 Plaintiff also seeks com pensatory dam ages, punitive dam ages, and costs and attorney’s fees. 71 On Septem ber 27, 20 18, defendants m oved to dism iss the com plaint. 72 Defendants argue that plaintiff does not have standing to brings its claim s, and that plaintiff fails to state a claim upon which relief can be granted. 73 In the alternative, defendants m ove to strike certain sections of the com plaint. 74 On December 19, 20 18, plaintiff filed a supplemental complaint. 75 The supplem ental complaint repeats all of the allegations in the initial com plaint, and includes additional allegations containing statements Kelly allegedly m ade to a newspaper reporter in August 20 18—after plaintiff filed its first com plaint but before defendants filed their m otion to dism iss. 76 Plaintiff asserts that Kelly stated, in reference to a property he owns at 2324 Calhoun Street in New Orleans, that he “like[s] to keep it with just girls at that building.”77 Defendants filed a renewed m otion to dismiss or strike on J anuary 2, 20 19, asserting that Kelly’s alleged statem ents in the 70 71 72 73 74 75 76 77 Id. at 22-23. Id. at 23. R. Doc. 9. R. Doc. 9-1. Id. R. Doc. 24. Id. Id. at 18-19 ¶ 10 9; R. Doc. 24-1 at 3. 12 supplem ental complaint do not support an inference that defendants have violated federal or state law. 78 II. LEGAL STAN D ARD A. Fe d e ral Ru le o f Civil Pro ce d u re 12 ( b) ( 1) Federal Rule of Civil Procedure 12(b)(1) governs challenges to a court’s subject m atter jurisdiction. “A case is properly dism issed for lack of subject m atter jurisdiction when the court lacks the statutory or constitutional power to adjudicate the case.” Hom e Builders Ass’n of Miss., Inc. v. City of Madison, 143 F.3d 10 0 6, 10 10 (5th Cir. 1998) (quoting N ow ak v. Ironw orkers Local 6 Pension Fund, 81 F.3d 1182, 1187 (2d Cir. 1996)). “Courts m ay dism iss for lack of subject m atter jurisdiction on any one of three bases: (1) the com plaint alone; (2) the com plaint supplem ented by undisputed facts in the record; or (3) the com plaint supplem ented by undisputed facts plus the court’s resolution of disputed facts.” Clark v. Tarrant County , 798 F.2d 736, 741 (5th Cir. 1986) (citing W illiam son v. Tucker, 645 F.2d 40 4, 413 (5th Cir. 1981)). Furtherm ore, plaintiff bears the burden of demonstrating that subject m atter jurisdiction exists. Paterson v. W einberger, 644 F.2d 521, 523 (5th Cir. 1981). 78 R. Doc. 25; R. Doc. 25-1. 13 See B. Fe d e ral Ru le o f Civil Pro ce d u re 12 ( b) ( 6 ) To survive a Rule 12(b)(6) m otion, a party m ust plead “sufficient factual m atter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (20 0 9) (quoting Bell Atl. Corp. v. Tw om bly , 550 U.S. 544, 570 (20 0 7)). A claim is facially plausible when the party pleads facts that allow the court to “draw the reasonable inference that the defendant is liable for the m isconduct alleged.” Id. at 678. A court m ust accept all well-pleaded facts as true and m ust draw all reasonable inferences in favor of the nonm oving party. See Lorm and v. US Unw ired, Inc., 565 F.3d 228, 232 (5th Cir. 20 0 9). A legally sufficient com plaint m ust establish m ore than a “sheer possibility” that the party’s claim is true. Iqbal, 556 U.S. at 678. It need not contain detailed factual allegations, but it m ust go beyond labels, legal conclusions, or form ulaic recitations of the elem ents of a cause of action. Id. In other words, the face of the com plaint m ust contain enough factual m atter to raise a reasonable expectation that discovery will reveal relevant evidence of each elem ent of the party’s claim . Lorm and, 565 F.3d at 257. The claim m ust be dism issed if there are insufficient factual allegations to raise a right to relief above the speculative level, Tw om bly , 550 U.S. at 555, or if it is 14 apparent from the face of the com plaint that there is an insuperable bar to relief, Jones v. Bock, 549 U.S. 199, 215 (20 0 7). III. D ISCU SSION A. Mo tio n to D is m is s 1. Standing In any suit in federal court, the issue of standing presents a “threshold jurisdictional question.” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 10 2 (1998). The requirem ent that a party have standing to sue flows from Article III of the Constitution, which lim its the scope of the federal judicial power to the adjudication of “cases” or “controversies.” U.S. Const. art. III, § 2. Standing consists of three elements: (1) the plaintiff must have suffered an “injury-in-fact,” which is an invasion of a legally protected interest that is “concrete and particularized” and “actual or im m inent”; (2) the injury m ust be “fairly traceable” to the challenged conduct of the defendant; and (3) it m ust be likely that plaintiff’s injury will be redressed by a favorable judicial decision. Lujan v. Defs. of W ildlife, 50 4 U.S. 555, 560 (1992). As the party invoking federal jurisdiction, plaintiff has the burden of establishing these elements. Spokeo, Inc. v. Robins, 136 S. Ct. 1540 , 1547 (20 16). At the 15 pleading stage, a plaintiff can satisfy this burden by “alleg[ing] facts dem onstrating each elem ent” of standing. Id. (internal quotation om itted). An organization, such as the plaintiff in this case, “can establish standing in its own nam e if it m eets the same standing test that applies to individuals.” OCA-Greater Houston v. Texas, 867 F.3d 60 4, 610 (5th Cir. 20 17); see also Havens Realty Corp. v. Colem an, 455 U.S. 363, 378-79 (1982). Defendants contend that plaintiff has not sufficiently alleged that it has suffered an injury-in-fact and therefore does not have Article III standing to bring its claim s. 79 Nonprofit organizations can suffer an Article III injury when a defendant’s actions frustrate their m issions and force them to “divert significant resources to counteract the defendant’s conduct.” N .A.A.C.P. v. City of Ky le, Texas, 626 F.3d 233, 238 (5th Cir. 20 10 ) (citing Havens Realty Corp., 455 U.S. at 379); OCA-Greater Houston, 867 F.3d at 612. For instance, the Fifth Circuit has held that an organization devoted to prom oting civic participation am ong Chinese and Asian Pacific Am ericans suffered an Article III injury when it diverted its resources to educate the com m unity about how to avoid the alleged discrim inatory effects of a Texas voting law. OCA-Greater Houston, 867 F.3d at 612. 79 R. Doc. 9-1 at 2-5. 16 Here, plaintiff alleges that it has been injured because defendants have frustrated its m ission of com bating housing discrim ination in the New Orleans com m unity. 80 Specifically, plaintiff alleges it has expended resources, including “staff tim e and organizational funds,” to “engage in education and outreach activities to counteract the effects” of defendants’ alleged discrim ination. 81 These activities allegedly include creating and circulating brochures and advertisem ents addressing sex discrim ination and sexual harassment in housing, as well as m aking presentations on these topics to student groups. 82 Plaintiff asserts that as a result of these expenditures, it has been forced to divert resources away from other planned projects and activities, including (1) other investigative initiatives; (2) recruitm ent of financial sponsors for its annual fair housing sum m it; and (3) developm ent and publication of new fair housing educational m aterials. 8 3 This diversion of resources has allegedly caused plaintiff to suffer decreased funding and a delay in providing its usual educational services to the com m unity. 8 4 80 81 82 83 84 R. Doc. 1 at 18 ¶ 10 4. Id. ¶ 10 5. Id. Id. at 19 ¶ 10 6. Id. 17 These factual allegations are sufficient to plead an Article III injury, because plaintiff alleges that it has diverted its resources toward education and outreach activities to address the im pact of defendants’ alleged discrim inatory practices. See id. at 610 -12; Havens Realty Corp., 455 U.S. at 379 (plaintiff sufficiently pleaded Article III injury by alleging it “had to devote significant resources to identify and counteract the defendant’s racially discrim inatory steering practices”). Importantly, plaintiff specifically alleges that it undertook these activities to counteract the effects of defendants’ alleged discrim ination, and not to prepare for this litigation. 8 5 See OCA-Greater Houston, 867 F.3d at 611 (“It is fundam ental that no plaintiff m ay claim as injury the expense of preparing for litigation, for then the injury-in-fact requirement would pose no barrier.”). Plaintiff has also identified with sufficient particularity other projects it has had to put on hold or curtail in order to address the impact of defendants’ alleged actions—i.e., preparing for its annual fair housing sum m it and publishing new educational m aterials. 8 6 Cf. City of Ky le, 626 F.3d at 238 (ruling that plaintiff lacked standing in part because at trial it failed to specify what other specific projects it had to put on hold to respond to defendant’s alleged 85 86 Id. at 18 ¶ 10 5. Id. at 19 ¶ 10 6. 18 discrim inatory ordinance). Finally, it is im m aterial that this alleged injury m ay have am ounted to only a m inim al expenditure of plaintiff’s resources, because an Article III injury “need not m easure m ore than an identifiable trifle.” OCA-Greater Houston, 867 F.3d at 612 (quoting Ass’n of Cm ty . Orgs. for Reform N ow v. Fow ler, 178 F.3d 350 , 358 (5th Cir. 1999)). 8 7 Defendants rely on Louisiana Acorn Fair Housing v. LeBlanc, 211 F.3d 298 (5th Cir. 20 0 0 ), to argue that plaintiff does not have standing. But that decision is inapposite because it involved a different procedural posture. There, the Fifth Circuit vacated a jury’s com pensatory dam ages award after determ ining that the plaintiff had failed to prove it had Article III standing at trial. LeBlanc, 211 F.3d at 30 4-0 6. In doing so, the Fifth Circuit applied the same standing principles that the Court applies today, recognizing that 87 Plaintiff also alleges that it has been injured because of its expenditures on “witness interviews and testing” to “identify defendants’ unlawful discrim ination.” Id. at 18 ¶ 10 5. These expenses qualify as an Article III injury to the extent they were undertaken solely to identify or confirm defendants’ alleged discrim inatory practices, and not to prepare for litigation. See Havens Realty Corp., 455 U.S. at 379; OCA-Greater Houston, 867 F.3d at 611; City of Ky le, 626 F.3d at 238 (plaintiff’s expenditure of $ 15,0 0 0 for a study on the im pact of defendant’s allegedly discrim inatory ordinance, which plaintiff then relied upon at trial to prove the ordinance’s disparate im pact, was not an Article III injury); Fow ler, 178 F.3d at 358 (com pilation of statistical evidence regarding the impact of an allegedly discrim inatory voter registration law, when put together “in connection” with the lawsuit, was not an Article III injury). As already addressed, plaintiff has sufficiently pleaded a constitutional injury even without this allegation. 19 “an organization could have standing if it had proven a drain on its resources resulting from counteracting the effects of the defendant’s actions.” Id. at 30 5. But the Fifth Circuit found that the plaintiff failed to prove at trial that counteracting the defendant’s alleged actions had caused it to drain its resources; instead, the plaintiff’s executive director’s testim ony regarding its injury-in-fact was “conjectural, hypothetical, and speculative.” Id. at 30 50 6. Because the case here is merely at the pleading stage, plaintiff need not prove that its efforts have led to a drain on its resources. Plaintiff need only allege facts dem onstrating each element of standing. Spokeo, Inc., 136 S. Ct. at 1547; Lujan, 50 4 U.S. at 561 (the plaintiff m ust establish each element of standing “with the m anner and degree of evidence required at the successive stages of the litigation”). Plaintiff has m et this requirem ent for each element of Article III standing. 88 88 Defendants do not argue that plaintiff has failed to allege the second and third elem ents of Article III standing—that defendants have caused plaintiff’s injuries and that a favorable decision from the Court will redress them . The Court finds that both elem ents have been satisfied. Plaintiff alleges that defendants’ actions are the reason it has had to expend additional resources in its com m unity, and it is self-evident that an injunction from the Court enjoining defendants from engaging in discrim inatory practices would allow plaintiff to cease those expenditures. 20 2. Failure to State a Claim Plaintiff has brought claim s under three provisions of the FHA—42 U.S.C. §§ 360 4(a), (b), and (c)—and under analogous provisions of the Louisiana Equal Housing Opportunity Act. 89 Defendants argue that plaintiff has failed to state a claim under either statute. 90 a. 42 U.S.C. § 360 4(a) and La. R.S. 51:260 6(A)(1) Section 360 4(a) of the FHA m akes it unlawful “[t]o refuse to sell or rent after the m aking of a bona fide offer, or to refuse to negotiate for the sale or rental of, or otherwise m ake unavailable or deny, a dwelling to any person because of race, color, religion, sex, fam ilial status, or national origin.” 42 U.S.C. § 360 4(a). It is well-recognized that allegations of disparate treatment of testers can be used to state a claim under the FHA. See, e.g., Lincoln v. Case, 340 F.3d 283, 286 & 293 (5th Cir. 20 0 3) (telling white testers an apartment is available but black testers that it is unavailable was evidence of housing discrim ination); Alexander v. Riga, 20 8 F.3d 419, 431-32 (3d Cir. 20 0 0 ); Richardson v. How ard, 712 F.2d 319, 321-22 (7th Cir. 1983); see also 89 R. Doc. 1 at 19-22. R. Doc. 9-1 at 6-10 . Because the language in the relevant sections of the FHA and Louisiana Equal Housing Opportunity Act are nearly identical, the Court’s analysis of plaintiff’s FHA claim s applies with equal force to its claim s under the state statute. See Jackson v. Scott, No. 0 7-6645, 20 10 WL 1153870 1, at *1 n.1 (E.D. La. J an. 14, 20 10 ). 21 90 Grant v. Sm ith, 574 F.2d 252, 254 n.3 (5th Cir. 1978) (“The use of testers has been accepted by the courts, tacitly or expressly, as an effective means of obtaining evidence of discrim ination.”); Havens Realty Corp., 455 U.S. at 368. Plaintiff alleges that Kelly refused to negotiate with the m ale testers or otherwise m ade housing unavailable to them in violation of § 360 4(a). 91 Plaintiff m ust allege facts showing that the testers’ sex was “one significant factor” m otivating Kelly’s actions. W oods-Drake v. Lundy , 667 F.2d 1198, 120 2 (5th Cir. 1982). Plaintiff has alleged sufficient facts to state a claim under this provision. In particular, plaintiff alleges that when m ale tester # 3 contacted Kelly about the advertised listing at 4233 Fontainebleau Drive apartm ent num ber 7, Kelly told the tester that the unit had been rented. 92 Kelly allegedly did not tell the m ale tester that any other units in that building were available. 93 But Kelly allegedly gave different inform ation to the fem ale 91 R. Doc. 14 at 8. R. Doc. 1 at 15 ¶ 80 . 93 Id. According to plaintiff, Kelly did initially schedule an appointm ent to show m ale tester # 2 a unit at 4233 Fontainebleau Drive. Id. at 12 ¶ 63. But when m ale tester # 2 called Kelly to confirm the appointm ent, as Kelly had instructed him to do, Kelly never answered the phone or returned the tester’s voicem ails. Id. at 13 ¶¶ 64-69. Kelly’s initial response to m ale tester # 2 thus does not underm ine plaintiff’s allegation that Kelly m ade housing unavailable to the m ale testers while showing available units at 4233 Fontainebleau Drive to the fem ale testers. 22 92 testers. First, plaintiff asserts that when fem ale testers # 2 and # 3 initially called Kelly, he volunteered that although apartm ent 7 was no longer available, he could show them apartm ent 3. 94 Second, three days after Kelly indicated to m ale tester # 3 that no units at 4233 Fontainebleau Drive were available, he allegedly contacted fem ale tester # 2 again to com m unicate that apartment 3 was still available. 95 And third, a new female tester allegedly contacted Kelly after Kelly told m ale tester # 3 that no units were available, and Kelly returned the fem ale tester’s call and asked her to call him back. 96 More generally, plaintiff’s allegations—which the Court m ust accept as true at this stage of the proceedings—present a pattern of treating the m ale and fem ale testers differently with respect to the availability of rental units. According to plaintiff’s allegations, it is evident that during the tim e period in which the first three tests were conducted, there was at least one available apartment to rent at 4233 Fontainebleau Drive. Plaintiff alleges that in each of the first three tests, Kelly responded prom ptly to the fem ale testers and arranged for them to view an available unit. But for each of the three m ale testers, Kelly either did not return their phone calls, did not confirm their 94 95 96 Id. at 12 ¶¶ 61-62; 14 ¶¶ 72-73. Id. at 15 ¶ 81. Id. ¶¶ 82-83. 23 appointm ents, or misrepresented the availability of the units. 97 These factual allegations are sufficient to state a violation of § 360 4(a). See 42 U.S.C. § 360 4(a) (prohibiting a landlord from “refus[ing] to negotiate for the sale or rental of, or otherwise m ake unavailable or deny, a dwelling to any person because of . . . sex”); Lincoln, 340 F.3d at 286 & 293. Defendants argue that to assume Kelly treated the m ale and female testers differently because of their sex is “pure speculation.”98 While it m ay be speculative to assume that one instance of differential treatm ent evidences discrim inatory intent, the pattern plaintiff alleges m oves its allegations from speculative to plausible. Iqbal, 556 U.S. at 678 (a party m ust plead “sufficient factual m atter, accepted as true, to state a claim to relief that is plausible on its face” (internal quotation om itted)). And plaintiff’s contention that Kelly had a discriminatory anim us is bolstered by the num erous other allegations related to plaintiff’s rental practices. 99 For instance, a former leasing agent for Kelly’s properties allegedly told plaintiff that Kelly prefers to rent to “young, skinny, white” girls. 10 0 Plaintiff further alleges that after it filed its com plaint, Kelly told a newspaper reporter that 97 98 99 10 0 Id. at 11 ¶¶ 56-57, 12-13 ¶¶ 63-69, 14-15 ¶¶ 79-80 . R. Doc. 9-1 at 7. See R. Doc. 1 at 6-9. Id. at 7 ¶ 27. 24 for one of his properties, he “likes to keep it with just girls.”10 1 When viewing plaintiff’s allegations as a whole, it is plausible that the testers’ sex was a significant factor m otivating Kelly. See W oods-Drake, 667 F.2d at 120 2 (“Plaintiff need only prove that [the protected trait] was one significant factor in defendant’s dealings . . . to establish a violation of the Fair Housing Act.”) Plaintiff’s factual allegations are sufficient to state a claim under § 360 4(a). b. 42 U.S.C. § 360 4(b) and La. R.S. § 51:260 6(A)(2) It is unlawful under § 360 4(b) to “discrim inate 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, religion, sex, fam ilial status, or national origin.” 42 U.S.C. § 360 4(b). A landlord can violate this provision by placing different application or closing requirements on prospective tenants because of a protected trait. See United States v. Pelzer Realty Co., Inc., 484 F.2d 438, 443 (5th Cir. 1973) (defendant violated FHA by placing different requirements on waiver of closing costs for black and white buyers); United States v. Collier, No. 0 8686, 20 10 WL 3881381, at *9 (W.D. La. Sept. 28, 20 10 ) (“Instituting different requirements for prospective purchasers because of [a protected 10 1 R. Doc. 24 at 18 -19 ¶ 10 9. 25 trait] can be a violation of Section 360 4(b).”). Several federal circuits have held that a plaintiff can also state a claim under this provision by alleging that a landlord’s sexual harassm ent created a hostile housing environment, because such harassm ent is discrim ination that am ounts to different term s, conditions, or privileges on the use of a dwelling. See Quigley v. W inter, 598 F.3d 938, 946-47 (8th Cir. 20 10 ); DiCenso v. Cisneros, 96 F.3d 10 0 4, 10 0 80 9 (7th Cir. 1996); Honce v. Vigil, 1 F.3d 10 85, 10 88-90 (10 th Cir. 1993). Here, plaintiff states a violation of this provision under both theories. Plaintiff alleges that when fem ale tester # 4 toured a unit at 7927 Birch Street, Kelly told her that she was “an all grown up wom an” who was “too pristine and together” to live at that property. 10 2 When fem ale tester # 4 asked about the application process for renting the unit, Kelly allegedly responded that she need only fill out an application, and that he would forego a credit check because she was a “grown wom an” who “looked like she was valedictorian at her college.”10 3 But when m ale tester # 4 asked Kelly a sim ilar question about a unit at the sam e property, Kelly allegedly responded that the tester would have to present his driver’s license, proof of em ploym ent, his current lease, and a deposit check for $ 950 . 10 4 Plaintiff thus 10 2 10 3 10 4 R. Doc. 1 at 16 ¶ 89. Id. ¶ 91. Id. at 17-18 ¶ 10 1. 26 asserts that Kelly placed different conditions on the application m aterials the fem ale and m ale testers were to subm it for the sam e rental unit, in violation of § 360 4(b). See Pelzer Realty Co., Inc., 484 F.2d at 443; Collier, 20 10 WL 3881381, at *9. It is true, as defendants point out, 10 5 that when taken in isolation, Kelly’s com ments to fem ale tester # 4 about her appearance m ight be construed as partly about her financial status. Under this interpretation, Kelly’s willingness to forego the fem ale tester’s credit check, but not the m ale tester’s, was not because of their sex, but because of his perceptions about their ability to afford the apartment. But to find that Kelly violated § 360 4(b), a jury would not have to conclude that sexual prejudice “dom inated [his] m ind during the negotiations.” Pelzer Realty Co., Inc., 484 F.2d at 443. The applicants’ sex need only be “one significant factor” Kelly considered when placing different conditions on their applications. Id. (finding a violation of § 360 4(b) even though the court did not “doubt that [defendant’s] primary goal was to make m oney, not to violate the Fair Housing Act”). And when analyzing defendants’ m otion to dism iss, the Court m ust draw all reasonable inferences in favor of plaintiff, the nonm oving party. See Lorm and, 565 F.3d at 232. 10 5 See R. Doc. 20 at 2. 27 When applying these standards, the allegation that Kelly told fem ale tester # 4 that he would forego her credit check because she was a “grown wom an” is enough to state a plausible claim for relief under § 360 4(b). First, this alleged statement specifically isolates fem ale tester # 4’s sex as a factor in Kelly’s decision. Cf. Hood v. Pope, 627 F. App’x 295, 299 (5th Cir. 20 15) (dism issing allegation when plaintiffs “alleged nothing that isolate[d] race as a factor in [defendant’s] motivations”). Second, plaintiff has presented a num ber of factual allegations that the sex of Kelly’s prospective and current tenants significantly im pacted his interactions with them . Viewing this alleged statement in that context, and drawing all reasonable inferences in plaintiff’s favor, it is plausible that the two testers’ sex was “one significant factor” m otivating Kelly’s actions. Next, as m entioned above, several circuits have held that a landlord’s sexual harassment of a tenant can constitute discrim ination that is actionable under § 360 4(b). See Quigley , 598 F.3d at 946-47; DiCenso, 96 F.3d at 10 0 8-0 9; Honce, 1 F.3d at 10 88-90 . These decisions are based upon the well-established principle—applied m ost often in the context of Title VII em ploym ent discrim ination cases—that “harassment based on sex is a form of discrim ination.” Honce, 1 F.3d at 10 8 9; see also Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 64 (1986) (“[W]hen a supervisor sexually harasses a 28 subordinate because of the subordinate’s sex, that supervisor ‘discrim inates’ on the basis of sex.”). These circuits’ interpretation of the FHA is consistent with regulations prom ulgated by the Department of Housing and Urban Development. See 24 C.F.R. § 10 0 .65(b)(7) (Section 360 4(b) prohibits “[s]ubjecting a person to harassment because of . . . sex . . . that has the effect of im posing different term s, conditions, or privileges relating to the sale or rental of a dwelling or denying or lim iting services or facilities in connection with the sale or rental of a dwelling”). The Fifth Circuit has not ruled whether a discrim ination claim under the FHA, like claim s under Title VII, can be prem ised on sexual harassm ent allegations. 10 6 But in light of these out-of-circuit precedents, and the Suprem e Court’s recognition that sexual harassment can constitute discrim ination in the Title VII context, the Court finds that plaintiff can state a claim under § 360 4(b) with allegations of sexual harassment. Courts apply the Title VII sexual harassm ent standards for these claim s under the FHA. See Honce, 1 F.3d at 10 89. Under Title VII, there are two distinct categories of sexual harassm ent: “quid pro quo” and hostile 10 6 Other district courts in Louisiana and Texas have followed these outof-circuit precedents and ruled that it can. See, e.g., Doe v. Duckw orth, No. 11-2963, 20 13 U.S. Dist. LEXIS 113287, at *5-6 (E.D. La. Aug. 12, 20 13); Baker v. W aterford Square Hom eow ners Ass’n, No. 0 0 -354, 20 0 2 WL 1461735, at *3 (N.D. Tex. J uly 2, 20 0 2). 29 environment harassm ent. Id. Plaintiff argues that its allegations that Kelly sexually harassed one of his tenants, “B.C.,” are sufficient to state a claim that Kelly created a hostile housing environm ent. 10 7 This type of claim is “actionable when the offensive behavior interferes with [a tenant’s] use and enjoyment of the prem ises.” Id. at 10 90 . “The harassm ent m ust be sufficiently severe or pervasive to alter the conditions of the housing arrangement.” Id. (internal quotation om itted). This finding “can be determ ined only by looking at all the circum stances, [including] the frequency of the discrim inatory conduct; its severity; and whether it is physically threatening or hum iliating[] or a m ere offensive utterance.” DiCenso, 96 F.3d at 10 0 8. Allegations of “isolated or trivial” harassment are not sufficient to state a claim. Honce, 1 F.3d at 10 89. Finally, “[e]vidence of harassment of other female tenants is relevant” to another tenant’s allegations. Id. Kelly’s alleged harassment of B.C. was sufficiently severe and pervasive to alter the conditions of her housing arrangement. Plaintiff alleges that (1) Kelly grabbed B.C.’s buttocks without her consent when they met for her to sign her lease; 10 8 (2) Kelly told B.C. during this m eeting that he returned her 10 7 10 8 R. Doc. 14 at 13-17. R. Doc. 1 at 8 ¶ 38. 30 call about the apartm ent only because she sounded attractive over the phone, and that he would not have rented to her if he had known she had a husband; 10 9 and (3) Kelly “peered into [B.C.’s] apartm ent windows when she was home and repeatedly entered her apartm ent without warning and without her consent,” including once while she was in the shower. 110 These allegations are sim ilar to the ones in Quigley , where the Eighth Circuit upheld a jury verdict finding that the defendant created a hostile housing environment. There, the plaintiff testified that her landlord subjected her to unwanted touching on two occasions, m ade sexually suggestive com m ents, rubbed his genitals in front of her, placed several m iddle of the night phone calls to her home, m ade repeated unannounced visits, and, on one occasion, while [the landlord] lay on [the plaintiff’s] couch, had to be told to leave her hom e at least three tim es before he com plied. Quigley , 598 F.3d at 947. The court concluded that the landlord’s behavior am ounted to discrim ination because it “interfered with [the plaintiff’s] use and enjoym ent of her home.” Id. Here, plaintiff sim ilarly alleges that Kelly touched B.C. inappropriately, m ade sexually suggestive com m ents, and repeatedly entered her home without her consent, including once when B.C. was in the shower. These allegations are not m ere “isolated” instances of harassment. Cf. DiCenso, 96 F.3d at 10 0 8-0 9 (one discrete instance of 10 9 110 Id. at 9 ¶¶ 39-40 . Id. ¶ 41. 31 harassment not sufficient to create a hostile housing environm ent); Honce, 1 F.3d at 10 90 (allegations that landlord asked the plaintiff to “accom pany him socially on three occasions” did not create a hostile housing environment). Finally, the allegations with respect to B.C. should be viewed in the context of plaintiff’s other allegations that Kelly’s behavior was so egregious that he caused m ultiple fem ale tenants to break their leases and vacate their apartments. 111 See Honce, 1 F.3d at 10 89 (“Evidence of harassm ent of other fem ale tenants is relevant to plaintiff’s claim .”). Specifically, Kelly’s former leasing agent allegedly told plaintiff that Kelly harassed several of his fem ale tenants by m aking sexual propositions, entering their apartm ents without consent, requesting dates, and m aking m ultiple late-night phone calls. 112 “A.B.,” one of Kelly’s former tenants, also allegedly told plaintiff that Kelly repeatedly let him self into her apartm ent without her consent, asked her for dates, and told her he would reduce her rent if she set him up with one of her friends. 113 Kelly’s actions allegedly caused A.B. to break her lease and m ove 111 112 113 Id. at 7 ¶ 30 , 8 ¶ 37. Id. ¶ 29. Id. at 8 ¶¶ 35-36. 32 out of her apartment. 114 Viewing all of these allegations together, plaintiff states a claim that Kelly created a hostile housing environm ent for B.C. c. 42 U.S.C. § 360 4(c) and La. R.S. § 51:260 6(A)(3) Section 360 4(c) m akes it illegal to “m ake, print, or publish, or cause to be m ade, printed, or published any notice, statem ent, or advertisem ent, with respect to the sale or rental of a dwelling that indicates any preference, lim itation, or discrim ination based on race, color, religion, sex, handicap, fam ilial status, or national origin, or an intention to m ake any such preference, lim itation, or discrim ination.” 42 U.S.C. § 360 4(c). The prohibitions in this section “apply to all written or oral notices or statem ents by a person engaged in the sale or rental of a dwelling.” 24 C.F.R. § 10 0 .75(b) (em phasis added); see Collier, 20 10 WL 3881381, at *10 (oral statem ent to real estate agent indicating preference for renting to whites constituted violation of § 360 4(c)). Plaintiff has stated a claim under this provision. Plaintiff m ust establish three elements to state a violation of § 360 4(c): that (1) Kelly m ade a statement; (2) the statement was m ade “with respect to the sale or rental of a dwelling;” and (3) the statement indicated a preference based on protected class membership. W hite v. U.S. Dep’t of Hous. & Urban Dev., 475 F.3d 898, 90 4-0 5 (7th Cir. 20 0 7) (citing 42 U.S.C. § 360 4(c)); 114 Id. ¶ 37. 33 Hunter v. W illiam son, No. 0 7-7970 , 20 0 8 WL 2599110 , at *3 (E.D. La. J une 25, 20 0 8). Whether a statement indicates a preference for renting to one sex over another is an “objective standard” that does not take into account the subjective intent of the speaker. W hite, 475 F.3d at 90 5-0 6; La. Acorn Fair Hous., Inc. v. Canal Street Dev. Corp., No. 96-3684, 1997 WL 598470 , at *2 (E.D. La. Sept. 23, 1997) (noting that a plaintiff need “not establish discrim inatory intent to prove a violation” of the provision (citing Ragin v. N .Y. Tim es Co., 923 F.2d 995, 999 (2d Cir. 1991))). Courts instead ask whether the oral statement in question would suggest to an “ordinary listener” that one sex is “preferred or disfavored.” W hite, 475 F.3d at 90 50 6. Plaintiff’s com plaint contains two statem ents attributed to Kelly that can support a § 360 4(c) claim . First, plaintiff alleges that when Kelly m et with B.C. to review and sign a lease, Kelly told her that he returned her initial call inquiring about the apartm ent only because he “believed she was attractive based on the sound of her voice.”115 This alleged statement was “with respect to the sale or rental of a dwelling” because Kelly m ade it during a m eeting to sign a rental lease. 42 U.S.C. § 360 4(c); see Stew art v. Furton, 774 F.2d 70 6, 70 7-0 8 & 710 (6th Cir. 1985) (defendant’s statem ent to 115 Id. at 8-9 ¶¶ 38-39. 34 prospective renter during inspection of rental unit that he “did not allow black tenants” violated § 360 4(c)). And an “ordinary listener” could construe Kelly’s alleged statem ent as an indication that he preferred to rent to women because he explicitly stated that his sense of B.C.’s attractiveness was the only reason he returned her call. Courts have found that statem ents that are far less explicit about the speaker’s preference can violate § 360 4(c). See, e.g., Ragin, 923 F.2d at 10 0 0 -0 2 (denying m otion to dism iss because a trier of fact could conclude that housing advertisement using only white m odels m ay be read by an ordinary reader as indicating preference for white renters). Second, Kelly’s alleged statements to fem ale tester # 4 during her tour of an apartment at 7927 Birch Street can also support a claim under § 360 4(c). Kelly allegedly told the tester that she was “an all grown up woman” who was “too pristine and together” to live at the apartm ent. 116 He also allegedly stated that he would forego her credit check because she appeared to be a “grown wom an.”117 These statem ents were with respect to the rental of a dwelling because Kelly m ade them while showing an available unit to a prospective tenant. See Stew art, 774 F.2d at 70 7-0 8; Jancik v. Dep’t of Hous. & Urban Dev., 44 F.3d 553, 557 (7th Cir. 1995). And as already 116 117 Id. at 16 ¶ 89. Id. ¶ 91. 35 discussed, it is plausible on its face that fem ale tester # 4’s sex was one significant factor for why Kelly loosened her application requirements. Likewise, an “ordinary listener” could plausibly infer that by isolating her sex as a reason for placing different terms and conditions on her application, Kelly was indicating a preference for renting to wom en. See Ragin, 923 F.2d at 10 0 0 -0 2; see also Iniestra v. Cliff W arren Investm ents, Inc., 886 F. Supp. 2d 1161, 1169 (C.D. Cal. 20 12) (apartm ent com plex rules found facially discrim inatory on the basis of fam ilial status in violation of § 360 4(b) also constituted statements in violation of § 360 4(c)). Plaintiff argues that two other statem ents attributed to Kelly can constitute violations of this provision: (1) his alleged statem ent to A.B. that he “only rents to wom en;” and (2) his statem ent to a newspaper reporter that he “likes to keep it with just girls” at one of his apartm ent buildings. 118 But unlike the statem ents the Court finds actionable, plaintiff does not allege that either of these statem ents were m ade “with respect to the sale or rental of a dwelling.” 42 U.S.C. § 360 4(c). They are instead statem ents about his general renting practices, disconnected from a specific sale or rental. Plaintiff does not cite a case holding that such statem ents can constitute a violation of § 360 4(c). Many federal district courts have in fact interpreted 118 R. Doc. 14 at 19; R. Doc. 27 at 1-2. 36 this provision as creating liability only when a defendant m akes statem ents in connection with the prospective sale or rental of an available dwelling. See, e.g., Gourlay v. Forest Lake Estates Civic Ass’n of Port Richey , Inc., 276 F. Supp. 2d 1222, 1234 (M.D. Fla. 20 0 3) (collecting cases) (vacated on separate grounds). The Court adopts this interpretation because it com ports with the statute’s plain language and purpose. See 42 U.S.C. § 360 4(c) (prohibiting discrim inatory statements “with respect to the sale or rental of a dwelling”); United States v. Space Hunters, Inc., No. 0 0 -1781, 20 0 1 WL 968993, at *5 (S.D.N.Y. Aug. 24, 20 0 1) (“The purpose of Section 360 4(c) is to prevent expressions that result in the denial of housing, not to prevent all discrim inatory expression.”). Kelly’s statem ents to A.B. and the newspaper reporter m ay be relevant to plaintiff’s allegations that the testers’ sex was one significant factor motivating Kelly’s actions, but the statements are not alone violations of the FHA. Finally, defendants argue that plaintiff is not entitled to relief under § 360 4(c) because it does not allege that Kelly m ade any statem ent to a tester that could constitute a violation of the provision. 119 First, Kelly’s alleged statements to fem ale tester # 4 can in fact constitute a violation of § 360 4(c). But even if they couldn’t, and plaintiff’s claim relied entirely on Kelly’s 119 R. Doc. 9-1 at 10 . 37 alleged statem ents to B.C., defendants’ argument would still be m eritless. As already addressed, plaintiff has standing to bring these claim s not because its testers suffered injuries, but because plaintiff itself has suffered injuries as a result of defendants’ alleged discrim inatory practices. An organization like plaintiff is perm itted to bring a suit alleging that a defendant’s actions toward third parties violated the FHA, so long as the plaintiff m eets the standing requirements. See, e.g., OCA-Greater Hous., 867 F.3d 60 4; Banks v. Hous. Auth. of City of Bossier City , La., No. 11-551, 20 11 WL 4591899, at *3-4 (W.D. La. Sept. 30 , 20 11). It is therefore irrelevant that som e of Kelly’s alleged statements were made to third parties. Because all three elements of plaintiff’s § 360 4(c) claim are met, defendants’ m otion to dism iss the claim is denied. B. Alte rn ative Mo tio n to Strike Defendants also m ove to strike eight paragraphs from plaintiff’s com plaint. 120 120 See id. at 10 -13; R. Doc. 1 at 1 ¶ 1 (alleging that form er tenants reported a hostile environm ent so severe that they broke their leases, including allegations that Kelly dem anded dates, offered to exchange rent for sexual favors, and entered apartm ents without the tenants’ consent); id. at 2 ¶ 2 (alleging that Kelly grabbed the buttocks of a woman during a m eeting to review and sign a lease); id. at 7 ¶ 27 (alleging that Kelly’s form er leasing agent told plaintiff that Kelly likes to rent to “young, skinny, white” girls); id. at 8 ¶ 36 (alleging that Kelly asked a tenant for a date and told her he would reduce her rent if she “set him up on a date” with a fem ale friend); id. ¶ 38 38 Federal Rule of Civil Procedure 12(f) allows the court to strike “from any pleading any insufficient defense or any redundant, im m aterial, im pertinent, or scandalous m atter.” Fed. R. Civ. P. 12(f). A m otion to strike under Rule 12(f) “is a drastic remedy to be resorted to only when required for the purposes of justice.” Augustus v. Bd. of Pub. Instruction of Escam bia Cty ., Fla., 30 6 F.2d 862, 868 (5th Cir. 1962); see also Kaiser Alum inum & Chem . Sales, Inc. v. Avondale Shipy ards, Inc., 677 F.2d 10 45, 10 57 (5th Cir. 1982) (“[M]otions to strike a defense are generally disfavored, . . .”); Sy nergy Mgm t., LLC v. Lego Juris A/ S, No. 0 7-5892, 20 0 8 WL 4758634, at *1 (E.D. La. Oct. 24, 20 0 8) (“Motions to strike m ade under Rule 12(f) are viewed with disfavor by the federal courts, and are infrequently granted.”). A m otion to strike should be granted only when “the allegations are prejudicial to the defendant or im m aterial to the lawsuit.” Johnson v. Harvey , No. 96-3438, 1998 WL 596745, at *7 (E.D. La. Sept. 8, 1998) (internal quotation om itted). Im m ateriality is established by showing that the challenged allegations “can (alleging that Kelly grabbed a prospective tenant’s buttocks during a meeting for the tenant to review and sign a lease); id. at 9 ¶ 41 (alleging that Kelly entered a fem ale tenant’s apartment without her consent while she was in the shower); id. at 11 ¶ 53 (alleging that during a m eeting with two of the fem ale testers, Kelly “openly star[ed]” at the testers’ bodies and “nibbl[ed] his lip” as he looked at their legs); id. at 14 ¶ 74 (alleging that while two of the fem ale testers viewed an apartment, Kelly forcefully slamm ed the door shut to the apartm ent). 39 have no possible bearing upon the subject m atter of the litigation.” Bay ou Fleet P’ship v. St. Charles Parish, No. 10 -1557, 20 11 WL 2680 686, at *5 (E.D. La. J uly 8, 20 11) (internal quotation om itted). None of the allegations to which defendants object is imm aterial to plaintiff’s com plaint, and therefore the Court will not strike them. First, m any of these allegations are critical to plaintiff’s claim that Kelly violated § 360 4(b) of the FHA by creating a hostile housing environm ent for one tenant. Second, each of these paragraphs is relevant to plaintiff’s discrim ination allegations generally, because each speaks to Kelly’s m otive in allegedly m aking his rental units unavailable to men. They do so by im plying that Kelly preferred to rent to wom en because he is sexually attracted to them . The Court will thus not strike these allegations because they are relevant to plaintiff’s claims. See Wright & Miller, 5C Federal Practice and Procedure § 1382 (3d ed. 20 18) (“It is not enough that the m atter offends the sensibilities of the objecting party if the challenged allegations describe acts or events that are relevant to the action.”). 121 121 Defendants also argue that several of these statements should be struck because they were not m ade by a party to this lawsuit and are therefore im m aterial. R. Doc. 9-1 at 12. The statem ents in question are by Kelly’s form er tenants and form er leasing agent, and recount Kelly’s behavior or com m ents to them . See, e.g., R. Doc. 1 at 7 ¶ 27 (alleging that Kelly’s form er leasing agent told plaintiff that Kelly likes to rent to “young, skinny, white” girls). Defendants do not cite any decision in which otherwise relevant 40 IV. CON CLU SION For the reasons stated above, defendants’ m otion to dism iss and alternative m otion to strike is DENIED. New Orleans, Louisiana, this _ _31st _ _ _ day of J anuary, 20 19. _____________________ SARAH S. VANCE UNITED STATES DISTRICT J UDGE statements in a com plaint were deemed im m aterial solely because they were attributed to third parties. 41
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