Price v. Country Brook Homeowners' Association, Inc.

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

KATHERINE BEBE PRICE, et al., Civil Action No. 1:21-cv-113

Plaintiffs, McFarland, J.

Bowman, M.J

vs.

COUNTRY BROOK HOMEOWNERS

ASSOCIATION, Inc., et al.,

Defendants.

REPORT AND RECOMMENDATION

This civil action is now before the Court on Defendants’ motions for judgment on

the pleadings (Docs. 14, 15, 16) and the parties’ responsive memoranda (Docs. 20, 21,

22, 23).

I. Background and Facts

Plaintiffs, Richard Price and his wife Katherine Price, live at 61 White Beech

Court in Springboro, Ohio. (Doc. 13, PageID #172). The property is a single-family

residence subject to Covenants, Conditions and Restrictions ("CCRs") of the Country

Brook Homeowners' Association, Inc. ("CBHOA"). Id. The CCRs were originally filed

and recorded in 2002, and were recorded again in 2016. (Id. at PageID #181). Section

11.13 of the CCRs provides, in pertinent part, as follows: 11.13. Animals, Pets. No

animals, livestock or poultry of any type shall be kept, except dogs, cats and other

domestic household pets provided that they are not kept, bred, boarded or maintained

for any commercial purpose, and further provided that pit bulls shall not be kept. (Id. at

Page #207). In November of 2018, Mrs. Price, who is an immigrant from Vietnam,

bought a Vietnamese Pot Belly Pig to keep as a pet. (Doc. 1, PageID #172-173).

On February 1, 2021, the CBHOA, represented by Mr. Oxley acting through his

law practice, Oxley LPA, filed a Complaint for Temporary Restraining Order, Preliminary

Injunction, and Damages in Warren County Common Pleas Court ("Common Pleas

Complaint") solely against Mr. Price, as the owner of the Plaintiffs' home, to remove the

pig for allegedly violating Section 11.13 of the CCRs. (Id. at Page #174).

On February 17, 2021, and while still litigating the state court action, Plaintiffs

filed this Complaint for purported violations of the Fair Housing Act against the CBHOA

and others, including Mr. Oxley and Oxley LPA. Plaintiff’s complaint purports to assert

three causes of actions against Defendants for discrimination in violation of the Fair

Housing Act. Plaintiffs filed an Amended Complaint on April 23, 2021 to reflect that the

purported animus was directed to the fact a “Vietnamese pot belly pig” was “going to be

living in the neighborhood”, not that a “Vietnamese expatriate was going to be living in

‘their’ neighborhood with her culturally traditional pet”. (Doc 13, PageID #173; Doc 1,

PageID #5).

Defendants now move for judgment on the pleadings.

II. Analysis

A. Standard of Review

Federal Rule of Civil Procedure 12(c) states that "[a]fter the pleadings are closed

– but early enough not to delay trial – a party may move for judgment on the pleadings."

Courts determine such motions based on the same standard applied to motions to

dismiss under Fed. R. Civ. P. 12(b)(6), which allows a party to move for dismissal of any

pleading on the basis that it fails to state a claim upon which relief can be granted. HDC,

LLC v. City of Ann Arbor, 675 F. 3d 608, 611 (6th Cir. 2012), citing Kottmyer v. Maas,

436 F. 3d 684, 689 (6th Cir. 2006). The pleading requirements stated in Bell Atlantic

Corp. v. Twombly, 550 U.S. 544, 570 (2007) and Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) apply to Rule 12(c) motions. Albrecht v. Treon, 617 F. 3d 890, 893 (6th Cir.

2010). Therefore, plaintiffs must "plead ... factual content that allows the court to draw

the reasonable inference that the defendant is liable for the misconduct alleged." Id.

"Merely pleading facts that are consistent with a defendant's liability or that permit the

court to infer misconduct is insufficient to constitute a plausible claim." Id., citing

Ashcroft v. Iqbal, 556 U.S. 662 (2009). “A plausible claim ‘pleads factual content that

allows the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.’” Linkletter v. Western & Southern Finan. Group, Inc., 851 F. 3d

632, 637 (6th Cir. 2017) (emphasis added), citing Ashcroft, supra. Therefore, “[a]

pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of

a cause of action will not do.’” Ashcroft, supra, at 678 quoting Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 555 (2007) (emphasis added). When reviewing a motion for

judgment on the pleadings, the Court must consider the complaint in a light most

favorable to the plaintiff and accept all factual allegations as true. HDC, LLC v. City of

Ann Arbor, 675 F. 3d 608, 611 (6th Cir. 2012). Pro se complaints, in particular, are to be

liberally construed. Martin v. Overton, 391 F.3d 710, 712 (6th Cir. 2004). Yet, all

plaintiffs – including pro se ones -- “must plead sufficient facts to state a claim for relief

that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)

(emphasis added).

B. Defendants’ motions for Judgment on the Pleadings are well taken

As noted above Plaintiffs’ amended complaint asserts three causes action. As

explained below, however, Plaintiffs fail to state any plausible claim for relief.

Notably, Count One of the Plaintiffs' amended complaint attempts to assert a

claim for intentional discrimination, or disparate treatment. It is well-established that "[t]o

prevail on a disparate treatment claim, a plaintiff must show proof of intentional

discrimination.... " HDC, LLC v. City of Ann Arbor, 675 F.3d 608, 611 (6th Cir. 2012). At

the pleading stage, "broad and conclusory allegations of discrimination cannot be the

basis of a complaint and a plaintiff must state allegations that plausibly give rise to the

inference that a defendant acted as the plaintiff claims." Id. at 614 (emphasis added).

Therefore, a "complaint that includes only conclusory allegations of discriminatory intent

without supporting factual allegations does not sufficiently show entitlement to relief." Id.

Here, Plaintiffs’ complaint fails to include any factual allegations of intentional

discrimination by Defendants. The amended complaint alleges only that the Defendants

interpreted 11.13’s reference to “other household pets” to mean “fish and bird.” (doc. 13,

PageID #173) with no factual allegations that the attempted enforcement of Section

11.13 was related to race or nationality.

Next, Count Two of the amended complaint attempts to state a claim for

disparate impact under the Fair Housing Act. In Tex. Dept. of Housing & Cmty. Affairs v.

Inclusive Communities Project, Inc., 576 U.S. 519 (2015), the U.S. Supreme Court

recognized a claim for disparate impact under the FHA and adopted the standards

contained at 24 C.F.R. § 100.500 for stating and proving a claim for disparate impact.

The Supreme Court has recognized that disparate impact claims are cognizable under

the Fair Housing Act. See Texas Dep't of Hous. and Cmty. Affairs v. Inclusive Cmtys.

Project, Inc., 135 S. Ct. 2507 (2015); see also Groach Assocs. # 33, L.P. v.

Louisville/Jefferson Cty. Metro Hum. Rels. Comm'n, 508 F.3d 366, 381 (6th Cir. 2007)

(“[A] plaintiff may establish a violation under the [Fair Housing Act] by showing that ... an

otherwise neutral practice has a disparate impact on a protected class.”). In doing so,

the Court held that the plaintiff is required to show that the challenged practices have a

“‘disproportionately adverse effect on minorities’ and are otherwise unjustified by a

legitimate rationale.” Inclusive Cmtys., 135 S. Ct. at 2513. Further, the Supreme Court

recognized the U.S. Department of Housing and Urban Development's (“HUD”) burden-

shifting framework that is used to analyze disparate impact claims. Id. at 2514. Under

the burden-shifting framework, the plaintiff must first make a prima facie showing of

disparate impact by proving that the challenged practice has caused or will cause a

discriminatory effect. Id. Next, the burden shifts to the defendant to prove that the

challenged practice is necessary to achieve a substantial, legitimate, nondiscriminatory

interest. Id. at 2514–15. Once the defendant has satisfied its burden, the plaintiff may

prevail by showing that the defendant's interest could be served by another practice that

has a less discriminatory effect. Id. at 2515. At the pleading stage, the court need only

consider the first step of the framework; it must determine whether the plaintiff has

made out a prima facie disparate impact claim. Id. at 2523.

To allege a prima facie case of disparate impact, the Supreme Court provides

that the plaintiff must satisfy what it called a “robust causality requirement.” Inclusive

Cmtys., 135 S. Ct. at 2523. That is, the plaintiff must be able to point to a specific policy

of the defendant and provide evidence showing that the policy causes the

disparity. Id. at 2523 (“a disparate-impact claim that relies on a statistical disparity must

fail if the plaintiff cannot point to a defendant's policy or policies causing that disparity”).

The “robust causality requirement” ensures that “racial imbalance ... does not, without

more, establish a prima facie case of disparate impact.” Id. It also prevents defendants

from being held liable for racial disparities they did not create.

Plaintiffs’ amended complaint fails to state a prima facie case of disparate

impact. Namely, Plaintiffs allege that Mrs. Price is an immigrant from Vietnam and that

"a pot belly pig is a common and traditional pet in Vietnam and has been an important

part of Vietnamese culture and heritage for centuries." (Doc. 13, PageID#172-173).

However, Plaintiffs fail to offer any supporting allegations to establish that they have

been treated any differently from the way any other homeowner in the Association

would have been treated had they had a pot belly pig as a domestic pet, or any other

animal other than a dog, cat, fish or bird.

Last, Count Three of Plaintiffs’ amended complaint purports to assert a cause of

action for hostile environment due to Plaintiff’s country of origin under the Fair Housing

Act, 42 U.S.C. § 3617 and 24 C.F.R. § 100.600. As noted by Defendants, the

regulation cited by Plaintiffs, 24 C.F.R. § 100.600, was enacted in 2016 and states that

"hostile environment harassment because of race, color, religion, sex, familial status,

national origin or handicap may violate [42 U.S.C. § 3604] depending on the conduct."

24 C.F.R. § 100.600(a). It defines hostile environment harassment as "unwelcome

conduct that is sufficiently severe or pervasive as to interfere with ... the use or

enjoyment of a dwelling ... or the provision or enjoyment of services or facilities in

connection therewith." Id. at § 100.600(a)(2) (emphasis added). The regulation also

provides that "[w]hether hostile environment harassment exists depends upon the

totality of the circumstances" including, but not limited to, "the nature of the conduct, the

context in which the incident(s) occurred, the severity, scope, frequency, duration, and

location of the conduct, and the relationships of the persons involved." Id. at §

100.600(a)(2)(i)(A).

Here, the allegations and facts contained in the amended complaint filed by the

Plaintiffs here do not give rise to any inference that "Plaintiffs" were harassed because

of Mrs. Price's national origin. Plaintiffs have not stated any facts to connect Defendants

actions to any "discriminatory animus." Instead, the allegations and facts clearly show

only a legal dispute between the Plaintiffs and their homeowners' association over a pot

belly pig owned by Mr. and Mrs. Price. As noted, Mr. Price admitted in his "Closing Brief

of Defendant" filed in the state court action that "it is his belief that the real reason for

the underling [sic] complaint was more about retaliation for an unrelated neighbor

dispute about a ditch and some rocks." (Doc. 15, Exhibit A at p. 2).1 As such, the

undersigned finds that Count Three of the amended complaint is devoid of any factual

allegation sufficient to plausibly suggest a discriminatory intention to harass, and it

should be dismissed.

1 Generally, a court may not consider matters outside of the pleadings when ruling on a 12(b)(6) motion

without converting it into a Rule 56 motion for summary judgment, “[d]ocuments that a

defendant attaches to a motion to dismiss are considered part of the pleadings if they are referred to in

the plaintiff's complaint and are central to her claim.” Niehaus v. City of Cincinnati, No. 1:12-CV-469, 2012

WL 7801715, at *2 (S.D. Ohio Dec. 14, 2012), report and recommendation adopted, No. 1:12CV469,

2013 WL 1196613 (S.D. Ohio Mar. 25, 2013) (internal citations omitted). Here, Plaintiff’s complaint

referenced the state court action. Additionally, the court may take judicial notice of the state court record.

See Ghaster v. City of Rocky River, 913 F. Supp. 2d 443, 454-55 (N.D. Ohio 2012) (finding that a court

may take judicial notice of another court's docket where, inter alia, the plaintiff referred to or attached the

public record to the complaint); Slusher v. Reader, No. 2:18-cv-570, 2019 WL 1384423, 2019 U.S. Dist.

LEXIS 51706 (S.D. Ohio Mar. 27, 2019)(same).

III. Conclusion

Accordingly, for these reasons, the undersigned finds that Plaintiffs’ amended

complaint fails to state any claim for relief and therefore, it is herein RECOMMENDED

that Defendants’ motions for judgment on the pleadings (Docs. 14, 15, 16) be

GRANTED; and that this case be CLOSED.

s/ Stephanie K. Bowman

Stephanie K. Bowman

United States Magistrate Judge

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

KATHERINE BEBE PRICE, et al, Civil Action No. 1:21-cv-113

Plaintiffs, McFarland, J.

Bowman, M.J

vs.

COUNTRY BROOKHOMEOWNERS

ASSOCIATION et al.,

Defendants.

NOTICE

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written

objections to this Report & Recommendation (“R&R”) within FOURTEEN (14) DAYS

after being served with a copy thereof. That period may be extended further by the

Court on timely motion by either side for an extension of time. All objections shall

specify the portion(s) of the R&R objected to, and shall be accompanied by a

memorandum of law in support of the objections. A party shall respond to an

opponent’s objections within FOURTEEN DAYS after being served with a copy of those

objections. Failure to make objections in accordance with this procedure may forfeit

rights on appeal. See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters,

638 F.2d 947 (6th Cir. 1981).