Stennis v. The Moorings of Oak Harbor Property Owners' Association LLC

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

SHALMON J. STENNIS ET. AL, CIVIL ACTION

Plaintiffs

VERSUS NO. 24-269

THE MOORINGS OF OAK HARBOR SECTION: “E” (2)

PROPERTY OWNERS’ ASSOCIATION

INC., ET AL.,

Defendants

ORDER AND REASONS

Before the Court are Defendants, The Moorings of Oak Harbor Property Owner’s

Association, Inc. (“The Moorings”), Community Management, LLC (“Community

Management”), and Michael Felger (“Felger”) (sometimes referred to collectively as “the

Defendants”). The Defendants filed a joint motion to dismiss Plaintiffs’ claims pursuant

to Rule 12(b)(6) of the Federal Rules of Civil Procedure.1 The motion is opposed.2

Defendants filed a reply.3

BACKGROUND

On January 30, 2024, Plaintiffs Lauren and Shalmon Stennis (“Plaintiffs”) filed

suit against four defendants: the Moorings, the homeowners association; Community

Management, the property management firm; Michael Felger, homeowners association

president; and Kelly Campbell, alleged to be the homeowners association treasurer,4

alleging they discriminated against Plaintiffs on the basis of their race in violation of the

1 R. Doc. 26.

2 R. Doc. 29.

3 R. Doc. 31.

4 In Plaintiffs’ complaint, they allege Kelly Campbell serves as board treasurer of The Moorings. R. Doc. 18,

p. 6. Campbell filed a separate Motion to Dismiss under Rule 12(b)(6), asserting he is not the treasurer and

was improperly named in the suit. R. Doc. 38.

Fair Housing Act (“FHA”)5 and the Civil Rights Act (“CRA”).6 Plaintiffs also assert state

law negligence and intentional infliction of emotional distress (“IIED”) claims.7

Defendants filed their first motion to dismiss on March 19, 2024.8 This Court

granted Plaintiffs leave to file an amended complaint.9 Plaintiffs filed their amended

complaint on March 23, 2024,10 and the Court denied the Defendants’ first motion to

dismiss without prejudice.11 Defendants then filed this joint motion to dismiss.12

According to their amended complaint, Plaintiffs identified a lot they wished to

purchase in the Moorings of Oak Harbor, a subdivision in Slidell, Louisiana.13 Plaintiffs

allege that The Moorings approved Plaintiffs’ proposed building plans, which included

plans for an outdoor pool.14 Only then, Plaintiffs allege, did they close on the lot and begin

construction on November 2, 2021.15

Plaintiffs allege that Defendants did not know Plaintiffs’ identities and race until

after approving Plaintiffs’ construction plans.16 Once construction began, and the

Defendants learned of Plaintiffs’ race, Plaintiffs allege that Defendants “initiated [a]

pattern and practice of racial harassment and discrimination against Plaintiffs” whereby

Defendants “conspired to harass and discriminate against Plaintiffs because of their

race.”17 Plaintiffs allege that, on March 27, 2022, one of Plaintiffs’ neighbors, who is not

5 42 U.S.C. § 3601 et seq.

6 42 U.S.C. §§ 1981-1982; R. Doc. 18, p. 1.

7 R. Doc. 18, pp. 18-23.

8 R. Doc. 13. Like the instant motion, only The Moorings, Community Management, and Felger joined in

the first motion to dismiss.

9 R. Doc. 16.

10 R. Doc. 18.

11 R. Doc. 21.

12 R. Doc. 26.

13 R. Doc. 18 at p. 4.

14 Id.

15 Id.

16 Id. at p. 6.

17 Id.

identified and who is not alleged to be a homeowners association officer, called the police

after Shalmon Stennis asked the neighbor to stop using the construction dumpster on

Plaintiffs’ property.18 Plaintiffs also allege that on May 7, 2022, during construction,

Campbell called 911 to report that Plaintiffs’ contractors were double-parked on the

street.19 Plaintiffs further allege that on August 15, 2022, two unidentified White

neighbors broke into Plaintiffs’ home while it was under construction.20 Plaintiffs assert

these incidents demonstrate a “coordinated effort to harass and deter Plaintiffs from

moving into the Moorings of Oak Harbor.”21

After construction was completed, Plaintiffs moved into their home in February

2023.22 Plaintiffs allege that, due to materials shortages, construction of their pool did not

begin until after Plaintiffs moved into their home.23 Plaintiffs allege Defendants began to

issue citations against Plaintiffs for allegedly violating The Moorings community

restrictions, such as leaving unused pilings on the property, having a visible slab due to

the unfinished pool construction, failing to properly screen-in the garbage can, and

having a visible water hose,24 while failing to enforce the same violations against White

residents.25 Plaintiffs allege Felger, in his capacity as board president of The Moorings,

instructed Community Management employees to impose fines on Plaintiffs.26 Plaintiffs

allege that The Moorings board members, including Felger and Campbell, voted to

18 Id. at p. 7.

19 Id. at p. 6.

20 Id. Plaintiffs allege the security footage of this incident has been erased. Id. at p. 18.

21 Id.

22 Id. at p. 4.

23 Id.

24 Id. at pp. 7-10. Plaintiffs assert several White neighbors have visible garbage cans and exposed hoses, but

Defendants issued no citations to these neighbors. Id. at p. 10, 14. Plaintiffs also allege that several other

homes of White families in the community have visible slabs, but they have not been fined. Id. at p. 9.

25 Id. at p. 7. Plaintiffs assert in their amended complaint that several community restriction violations at

White residents’ homes went unenforced.

26 Id. at pp. 9-11, 14.

increase the minimum fine amounts for the fines issued against Plaintiffs.27 Plaintiffs

allege that Community Management, “on behalf of the Moorings,” issued Plaintiffs a

“final warning” on January 25, 2024, listing fines owed to the Moorings for violations

totaling over $22,200.28

Plaintiffs also allege that on both August 24, 2023, and October 29, 2023,

Community Management employees, at Felger’s instruction,29 deactivated Plaintiffs’

entry decal, a device that provided Plaintiffs with access into the gated community.30

Plaintiffs allege Defendants did not deactivate the decals of White residents who

committed violations.31 Plaintiffs allege that deactivation of their entry decal caused them

severe emotional distress because, on one occasion, they were prevented from entering

the community to care for their sick child.32 Plaintiffs also allege that Felger, Campbell,

and The Moorings conspired with other residents to use Wi-Fi jammers to disable

Plaintiffs’ surveillance cameras that would otherwise have captured a burglary of

Plaintiffs’ home allegedly committed by White neighbors.33

Defendants filed the instant motion to dismiss under Rule 12(b)(6), arguing that

Plaintiffs fail to state a claim upon which relief may be granted and that the amended

complaint “concerns allegations that occurred more than one year prior to the filing of

this suit” such that the claims are prescribed.34 Defendants argue Plaintiffs fail to allege

facts sufficient to support their claims because Plaintiffs agreed to the restrictions

27 Id. at p. 17.

28 Id. at p. 11. Plaintiffs further allege the Defendants charged Plaintiffs with late fees, then voided some of

these fees “hours after the original complaint was filed.” Plaintiffs argue this shows “that Defendants

conspired to conceal their harassment and discrimination of Plaintiffs.” Id. at p. 18.

29 Id. at p. 14.

30 Id. at p. 5.

31 Id.

32 Id. at p. 19.

33 Id. at pp. 17-18.

34 R. Doc. 26-1, p. 1.

imposed by The Moorings when they purchased their property.35 Defendants argue that,

because Plaintiffs violated the restrictions, they were fined appropriately, and their

“grievances . . . do not rise to the level of justiciable causes of action.”36

LEGAL STANDARD

Pursuant to Federal Rule of Civil Procedure 12(b)(6), a district court may dismiss

a complaint for failure to state a claim upon which relief may be granted if the plaintiff

has not set forth factual allegations in support of his claim that would entitle him to

relief.37 “To survive a motion to dismiss, a complaint must contain sufficient factual

matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”38 “A claim

has facial plausibility when the plaintiff pleads factual content that allows the court to

draw the reasonable inference that the defendant is liable for the misconduct alleged.”39

The Court, however, does not accept as true legal conclusions or mere conclusory

statements, and “conclusory allegations or legal conclusions masquerading as factual

conclusions will not suffice to prevent a motion to dismiss.”40 Indeed, “threadbare recitals

of elements of a cause of action, supported by mere conclusory statements” or “naked

assertion[s] devoid of further factual enhancement” are not sufficient.41

“[W]here the well-pleaded facts do not permit the court to infer more than the

mere possibility of misconduct, the complaint has alleged—but it has not show[n]’—that

the pleader is entitled to relief.”42 However, “legal conclusions can provide the framework

35 Id. at p. 2.

36 Id.

37 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir.

2007).

38 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570).

39 Id.

40 S. Christian Leadership Conf. v. Sup. Ct. of the State of La., 252 F.3d 781, 786 (5th Cir. 2001) (citing

Fernandez-Montes v. Allied Pilots Ass’n, 987 F.2d 278, 284 (5th Cir. 1993)).

41 Iqbal, 556 U.S. at 663, 678 (citations omitted).

42 Id. at 679 (quoting FED. R. CIV. P. 8(a)(2)).

of a complaint, [if] they [are] supported by factual allegations.”43 “Determining whether a

complaint states a plausible claim for relief [is] . . . a context-specific task that requires

the reviewing court to draw on its judicial experience and common sense.”44 “Although

detailed factual allegations are not required,” “[d]ismissal is appropriate when the

complaint ‘on its face show[s] a bar to relief.’”45 Whether a plaintiff “will be able to offer

sufficient proof to support [his or her] claims is more appropriate in the context of a

motion for summary judgment or a trial on the merits” rather than in a motion to

dismiss.46 “[I]ntensive disputes of material fact . . . are usually more appropriate for

summary judgment . . . .”47

A Rule 12(b)(6) motion to dismiss is the proper procedural mechanism to raise a

statute of limitations defense.48 A “motion to dismiss may be granted on the basis of

prescription if the untimeliness appears from the face of the complaint.”49 When a

“plaintiff’s claims are prescribed on the face of the petition, plaintiff has the burden of

proving the claims are not prescribed.”50 In summary, “[d]ismissal is appropriate when

the complaint ‘on its face show[s] a bar to relief.’”51

LAW AND ANALYSIS

Defendants seek dismissal of Plaintiffs’ claims,52 arguing that Plaintiffs “fail to

43 Id. “Factual allegations must be enough to raise a right to relief above the speculative level.” Twombly,

550 U.S. at 555.

44 Iqbal, 556 U.S. at 679.

45 Cutrer v. McMillan, 308 F. App’x 819, 820 (5th Cir. 2009) (per curiam) (citations omitted).

46 Smith v. GE Healthcare, Inc., No. 3:19-CV-00492, 2019 WL 4565246, at *7 (W.D. La. Sept. 4, 2019).

47 Dong Phuong Bakery, Inc. v. Gemini Soc'y, LLC, No. CV 21-1109, 2022 WL 898750, at *5 (E.D. La. Mar.

28, 2022).

48 Bowers v. Nicholson, 271 F. App’x 446, 449 (5th Cir. 2008).

49 Cranner v. Coletti, No. CIV.A. 13-6681, 2014 WL 1407328, at *2 (E.D. La. Apr. 10, 2014).

50 Caldwell Wholesale Co., L.L.C. v. R.J. Reynolds Tobacco Co., No. CV 17-0200, 2018 WL 2209165, at *4

(W.D. La. May 11, 2018), aff'd sub nom., Caldwell Wholesale Co., L.L.C. v. R J Reynolds Tobacco Co., 781

F. App'x 289 (5th Cir. 2019).

51 Cutrer v. McMillan, 308 F. App’x 819, 820 (5th Cir. 2009) (per curiam) (quotations omitted).

52 Defendants do not address Plaintiffs’ § 3617 harassment claim under the Fair Housing Act.

meet the burden of establishing claims under the Fair Housing Act and the Civil Rights

Act of 1866 because [the amended complaint] fails to specify that Plaintiffs were denied

access to owning property and fails to allege any discriminatory intent on the part of

Defendants.”53 Defendants argue Plaintiffs “fail to allege facts to demonstrate a 42 U.S.C.

§ 1985 conspiracy.”54 As to Plaintiffs’ state law negligence and intentional infliction of

emotional distress claims, Defendants argue most of the allegations in the amended

complaint are prescribed, and the remainder of the allegations “fail to identify adequate

conduct to support their claims.”55 The Court will address each of Plaintiffs’ claims in turn.

I. Plaintiffs have sufficiently pleaded claims against Defendants under

the Fair Housing Act.

The Fair Housing Act (“FHA”)56 “prohibits discrimination in the sale or rental of

housing.”57 “The FHA, as originally enacted in 1968, prohibited discrimination based on

race, color, religion, or national origin.”58 “In 1988, Congress extended coverage to

persons with handicaps and also prohibited ‘familial status’ discrimination, i.e.,

discrimination against parents or other custodial persons domiciled with children under

the age of 18.”59 “The provisions of 42 U.S.C. [§] 3604 are to be given broad and liberal

construction, in keeping with Congress' intent in passing the Fair Housing Act of

replacing racially segregated housing with ‘truly integrated and balanced living

patterns.’”60 Section 3604(a) makes it unlawful to “refuse to sell or rent after the making

53 R. Doc. 26-1, p. 17.

54 Id.

55 Id. at pp. 17-18.

56 42 U.S.C. §§ 3601–3631.

57 Avalon Residential Care Homes, Inc. v. GE Fin. Assur. Co., No. CIV.A.3:02-CV-0631-L, 2002 WL

32359947, at *2 (N.D. Tex. Oct. 18, 2002), aff'd sub nom., Avalon Residential Care Homes, Inc. v. GE Fin.

Assur. Co., 72 F. App’x 35 (5th Cir. 2003).

58 City of Edmonds v. Oxford House, Inc., 514 U.S. 725, 728 n.1 (1995).

59 Id. (citing 42 U.S.C. § 3602(k)).

60 Woods-Drake v. Lundy, 667 F.2d 1198, 1201 (5th Cir. 1982) (quoting Trafficanti v. Metropolitan Life

Ins. Co., 409 U.S. 205 (1972)).

of a bona fide offer, or to refuse to negotiate for the sale or rental of, or otherwise make

unavailable or deny, a dwelling to any person because of race . . . .”61 Section 3604(b)

makes it unlawful to “discriminate against any person in the terms, conditions, or

privileges of sale or rental of a dwelling, or in the provision of services or facilities in

connection therewith, because of race . . . .”62 42 U.S.C. § 3617 makes it unlawful “to coerce,

intimidate, threaten, or interfere with any person in the exercise or enjoyment of, . . . any

right granted or protected by section . . . 3604.”63

Courts within the Fifth Circuit have recognized that § 3604 liability may extend to

Defendants who “otherwise make unavailable or deny, a dwelling to any person” because

of a protected characteristic, even if the discriminatory conduct occurred after the

purchase or acquisition of housing.64 A plaintiff’s claims under the unavailability portion

of the Fair Housing Act, provided for in § 3604(a), may rely on post-acquisition conduct,

such as eviction or constructive eviction, so long as the claims allege that defendants’

61 42 U.S.C. § 3604(a).

62 § 3604(b). Section 3604 also includes the following provisions: “§ 3604(c) (making it unlawful to print

or publish discriminatory statements with respect to sale or rental of a dwelling); § 3604(f)(3)(B) (making

it unlawful to discriminate because of a handicap); and § 3617 (making it unlawful to coerce, intimidate,

threaten, or interfere with a person based on his aiding or encouraging another in the exercise or enjoyment

of fair housing rights).” Petty v. Portofino Council of Coowners, Inc., 702 F. Supp. 2d 721, 728 (S.D. Tex.

2010).

63 42 U.S.C. § 3617. In the Fifth Circuit, § 3617 claims “require an underlying violation of §§ 3603, 3604,

3605, or 3606.” Downing v. Pondugula, No. 4:21-CV-1006-P, 2022 WL 1117446, at *4 (N.D. Tex. Mar. 29,

2022), report and recommendation adopted, No. 4:21-CV-1006-P-BJ, 2022 WL 1117203 (N.D. Tex. Apr.

14, 2022); McZeal v. Ocwen Fin. Corp., 252 F.3d 1355 (5th Cir. 2001) (“Because [Plaintiff's] § 3605 claim

fails, [his] claim under § 3617 must also fail.”); but see Halprin v. Prairie Single Fam. Homes of Dearborn

Park Ass'n, 388 F.3d 327 (7th Cir. 2004) (affirming dismissal of a § 3604 claim but reversing and

remanding on dismissal of § 3617 claim based on an alleged pattern of harassment of plaintiffs on the basis

of religion in a subdivision). A plaintiff must show a causal connection between the harassment endured

and “their attempts to exercise their rights under the FHA.” Hood v. Pope, 627 F. App'x 295, 300 (5th Cir.

2015). In their motion to dismiss, Defendants do not seek dismissal of Plaintiffs’ § 3617 harassment claim.

Therefore, the Court will not address this claim.

64 See Cox v. City of Dallas, 430 F.3d 734, 741 (5th Cir.2005); Treece v. Perrier Condo. Owners Ass'n, Inc.,

593 F. Supp. 3d 422, 437-38 (E.D. La. 2022); see Evans v. Tubbe, 657 F.2d 661 (5th Cir. 1981) (holding

there were sufficient allegations of discrimination under § 3604(a) when a neighbor locked a gate across an

access road, preventing a Black landowner from accessing the road, and therefore his land, while providing

the keys to White residents).

conduct negatively affected the availability of the housing, not just the value or

habitability of the housing.65 Constructive eviction may exist when habitability “has so

decreased that continued residency is not objectively reasonable.”66

Fifth Circuit courts have recognized that “[a]mong the conduct to which § 3604(b)

applies are threats to evict and actual or constructive eviction.”67 Further, a plaintiff also

may allege a “hostile environment” claim under § 3604(b) by alleging facts to show that a

defendant’s conduct created a hostile environment, altering the original terms,

conditions, or privileges on the use of the dwelling.68 Courts assess whether defendant’s

alleged conduct constitutes “harassment [that is] discrimination . . . [that] amounts to

[imposing] different terms, conditions, or privileges on the use of a dwelling.”69

A plaintiff may also state a claim under the FHA by sufficiently alleging that a

defendant discriminated against the plaintiff “in the provision of services or facilities in

connection” with the sale or rental of housing.70 To survive a motion to dismiss under §

3604, plaintiffs must allege facts to demonstrate that Defendants’ discrimination affected

65 Cox, 430 F.3d at 741-42 (“[T]he simple language of § 3604 does not apply to current homeowners whose

complaint is that the value or ‘habitability’ of their houses has decreased because such a complaint is not

about ‘availability’ . . . . This is not to say that a current owner has no claim for attempted and unsuccessful

discrimination relating to the initial sale or rental of the house . . . . And it is not to say that a current owner

or renter evicted or constructively evicted from his house does not have a claim [under § 3604(a)].”).

66 Id. at 742 n.21.

67 Hood, 627 F. App'x at 298. Woods–Drake v. Lundy, 667 F.2d 1198, 1201 (5th Cir. 1982) (“[D]efendant’s

conduct-threatening to evict plaintiffs . . . is prohibited by the express terms of the Fair Housing Act. 42

U.S.C. § 3604(b) reads . . . ‘(I)t shall be unlawful . . . to discriminate against any person in the terms,

conditions, or privileges of . . . rental of a dwelling . . . because of race.’”); see also Cox, 430 F.3d at 746

(“[Section] 3604(b) may encompass the claim of a current owner or renter for attempted and unsuccessful

discrimination relating to the initial sale or rental or for actual or constructive eviction.”).

68 See, e.g., Monus v. Riecke, No. 21-218, 2021 WL 1721010, at *3 (E.D. La. Apr. 30, 2021) (“A plaintiff can

state a claim under § 3604(b) by alleging that a landlord's sexual harassment altered the terms, conditions,

or privileges on the use of a dwelling.”).

69 Greater New Orleans Fair Hous. Action Ctr. v. Kelly, 364 F. Supp. 3d 635, 650 (E.D. La. 2019) (citing

Quigley v. Winter, 598 F.3d 938, 946-47 (8th Cir. 2010)); DiCenso v. Cisneros, 96 F.3d 1004, 1008-09 (7th

Cir. 1996); Honce v. Vigil, 1 F.3d 1085, 1088-90 (10th Cir. 1993)). Courts have denied motions to dismiss

of FHA claims under a sexual harassment theory under § 3604(b).

70 Cox, 430 F.3d at 745.

the availability of housing.71 “To state a claim under the FHA, plaintiffs must allege facts

that make it plausible, rather than merely conceivable, that the defendants' conduct fell

within the terms of the statute.”72 “To prove that an action was discriminatory under §

3604, a plaintiff must establish (1) that defendant's stated reason for its decision was

pretextual, and (2) a reasonable inference that race was a significant factor in the

refusal.”73

Plaintiffs assert claims under the Fair Housing Act, § 3601 et seq., stating that “§

3604 makes it unlawful to discriminate against any person in the terms, conditions, or

privileges of sale or rental of a dwelling, or in the provision of services or facilities in

connection therewith, because of race, color, religion, sex, familial status, or national

origin.”74 Plaintiffs allege the Defendants “discriminated against Plaintiffs in the provision

of services or facilities in connection with the initial sale of their home based on race, in

violation of 42 U.S.C. § 3604.”75

Defendants argue that Plaintiffs fail to allege an FHA claim because “none of their

allegations relate to the purchase of their home . . . . all allegations occurred after Plaintiffs

purchased their property.”76 Defendants argue that, because Plaintiffs failed to allege they

71 See Petty v. Portofino Council of Coowners, Inc., 702 F. Supp. 2d 721, 728-30 (S.D. Tex. 2010) (analyzing

§§ 3604(a)-(c) claims together at the motion to dismiss stage).

72 Hood, 627 F. App'x at 298. To state a prima facie case under the FHA, the plaintiffs must prove 1) they

are members of a protected class under the Fair Housing Act; 2) they were qualified to rent or purchase

housing; 3) the defendant acted adversely toward them through either rejecting the application, offer, or

otherwise making the housing unavailable, and 4) the housing remained open to other similarly situated

individuals. Mandawala v. Struga Mgmt., No. 21-50644, 2023 WL 2712500, at *4 (5th Cir. Mar. 30, 2023)

(citing Crain v. City of Selma, 952 F.3d 634, 640-41 (5th Cir. 2020)); see Treece, 593 F. Supp. 3d at 439

(noting that “[t]he elements of a prima facie case vary depending on the facts and claims of the case,” and

where the Plaintiffs allege facts that Defendant made the housing unavailable to Plaintiffs, a court assesses

whether “3) Defendants made housing unavailable through threats or acts to evict the [plaintiffs]; and 4)

housing . . . and its amenities remained open to other similarly situated individuals.”).

73 Hood, 627 F. App'x at 298.

74 R. Doc. 18, p. 3; In their opposition, Plaintiffs argue that under § 3604(b), Defendants discriminated

against Plaintiffs in the terms, conditions, privileges, or in the provision of services or facilities in

connection with the sale of housing.

75 Id. at p. 5.

76 R. Doc. 26-1, p. 4.

were denied the ability to purchase their home, they have failed to allege any

discrimination in the sale of their home that would qualify as a FHA violation.77 In

opposition, Plaintiffs argue that the FHA also applies to “matters involving post sale or

rental discrimination so long as it relates to the initial sale or lease,” such as “actual or

constructive eviction.”78 Plaintiffs further argue that the alleged discrimination relates to

the “terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of

services or facilities in connection therewith,” and that “[t]he question of whether

Defendants’ conduct relates to the initial sale of Plaintiffs’ home is a matter for the trier

of fact.”79

The Court finds the Plaintiffs have sufficiently alleged facts to support their claims

under the FHA. Plaintiffs’ allegations—which the Court must accept as true at this stage

of the proceedings—include claims that Defendants discriminated against Plaintiffs on

the basis of race through excessive fining, barring their access to the community,

threatening liens, and other harassing conduct.80 First, Plaintiffs, who are African

American, are members of a protected class under the FHA.81 Second, Plaintiffs allege

they purchased a lot and built their home in the Moorings of Oak Harbor, and The

Moorings approved Plaintiffs’ building plans prior to construction.82

Third, Plaintiffs have sufficiently alleged facts to show that Defendants made

housing unavailable to Plaintiffs. Plaintiffs have alleged that Defendants deactivated their

77 Id. at p. 5.

78 R. Doc. 29, p. 3.

79 Id. at pp. 4-5.

80 See Texas v. Crest Asset Mgmt., Inc., 85 F. Supp. 2d 722, 727 (S.D. Tex. 2000) (quoting Trafficante v.

Metropolitan Life Ins. Co., 409 U.S. 205, 209, 212 (1972)) (“The Fair Housing Act is ‘broad and inclusive’

in protecting against conduct which interferes with fair housing rights and is subject to ‘generous

construction.’”).

81 R. Doc. 18, p. 2.

82 Id.

community entry decal,83 threatened to put liens on their property, and levied substantial

fines against them totaling over $22,000.84 Plaintiffs have alleged that Defendants called

the police to report Plaintiffs, broke into the Plaintiffs’ home or were involved in

instructing others to do so, and otherwise have engaged in a conspiracy of racial

harassment and discrimination since Plaintiffs moved into their home.85 Plaintiffs allege

facts sufficient to demonstrate that Defendants have acted to prevent Plaintiffs from

accessing the community, and that the Defendants have substantially fined Plaintiffs

while not doing the same to White residents who they allege also have violated

homeowners association policies. Courts have denied motions to dismiss claims made

under the FHA when defendants disconnected the plaintiff condo-owners’ phone service,

disabled a gate access point which plaintiffs used for entry into the complex, threatened

to fine plaintiffs, and otherwise made areas of the condo building unavailable to

plaintiffs.86 The Court rejects Defendants’ arguments that actionable claims under the

FHA involve only pre-purchase activity.87 The Court finds that Plaintiffs’ allegations,

taken as true, sufficiently state a claim that Defendants made housing unavailable to

Plaintiffs.

Fourth, in the context of the facts of this case, Plaintiffs have adequately alleged

83 Id. at p. 5.

84 Id. at p. 8, 11.

85 Id. at pp. 6-7. Plaintiffs allege in their amended complaint that Felger assumed Plaintiff was the contractor

because he was African-American and drove a pickup truck. Id. at p. 6. Plaintiffs allege that the

discrimination and harassment occurred shortly after construction began, and that Defendants did not

know Plaintiffs’ identity until after closing. Id.

86 Petty v. Portofino Council of Coowners, Inc., 702 F. Supp. 2d 721, 729-30 (S.D. Tex. 2010). In Petty, the

court analyzed plaintiffs’ claims under a “housing unavailability theory” under both §§ 3604(a)-(b) and

denied the motion to dismiss.

87 See Padgett v. Texas Reg'l Asset Mgmt. LLC, No. 5:18-CV-396-OLG, 2019 WL 13254312, at *3 (W.D. Tex.

Mar. 6, 2019) (describing that the Cox and Hood holdings leave open the possibility of constructive eviction

claims under the FHA) (“The Court finds that Plaintiffs’ claims are not subject to dismissal simply because

the discriminatory acts they allege occurred post-acquisition.”); see, e.g., Hughes v. Bouchon Props. LLC,

No. CV 24-103, 2024 WL 2784626 (E.D. La. May 30, 2024) (denying a motion to dismiss on a FHA race

discrimination claim on the basis of an alleged eviction).

facts to show Defendants’ discrimination was on the basis of Plaintiffs’ race. Plaintiffs

have alleged that Defendants did not act to limit or make unavailable housing to White

residents.88 Plaintiffs have alleged that the discriminatory conduct only began once

Defendants learned of Plaintiffs’ race.89 Though Defendants argue all actions taken

against Plaintiffs, including the levying of fines, resulted from Plaintiffs’ violations of The

Moorings community restrictions, Plaintiffs have alleged that White residents were not

fined for the same violations, nor were their entry decals deactivated.90 Plaintiffs also

allege that Defendants were aware of the many White residents who violated The

Moorings’ policies, but Defendants chose not to enforce these violations. Plaintiffs allege

that Defendants issued notices of violations that contained photos showing evidence of

the violations underlying the fines.91 Plaintiffs allege that, in the notices, Defendants

intentionally cropped the photos to remove evidence of neighboring homes owned by

White residents who had the same violations.92 Taking these allegations as true, the Court

finds Plaintiffs have alleged facts to support an inference that race was a significant factor

in Defendants’ unequal enforcement of The Moorings’ policies and guidelines.93 Thus,

Plaintiffs have sufficiently pleaded facts to support a claim that Defendants have racially

discriminated against Plaintiffs under the Fair Housing Act.

88 See Evans v. Tubbe, 657 F.2d 661, 662 (5th Cir. 1981) (vacating dismissal of a FHA claim where plaintiff

alleged that “[defendant] erected a metal gate across the road and placed a lock upon the gate, thereby

preventing [plaintiff] from reaching and using her property. [Defendant] gave a key to the gate to all of the

White people who own property along the road, but refused to give a key to [plaintiff].”).

89 R. Doc. 18, p. 6.

90 Id. at pp. 5, 8-10.

91 See id. at pp. 9-10.

92 Id.

93 See Hood v. Pope, 627 F. App'x 295, 298 (5th Cir. 2015).

II. Plaintiffs have sufficiently pleaded Civil Rights Act claims under § 1981

and § 1982.

Sections 1981 and 1982 provide an independent cause of action against private,

non-governmental actors for discrimination on the basis of race.94 Section 1981(a) states:

All persons within the jurisdiction of the United States shall have the same

right in every State and Territory to make and enforce contracts, to sue, be

parties, give evidence, and to the full and equal benefit of all laws and

proceedings for the security of persons and property as is enjoyed by white

citizens, and shall be subject to like punishment, pains, penalties, taxes,

licenses, and exactions of every kind, and to no other.95

Section 1981(b), in turn, defines the phrase “make and enforce contracts” as “the making,

performance, modification, and termination of contracts, and the enjoyment of all

benefits, privileges, terms, and conditions of the contractual relationship.”96 Section 1982

protects interests in property, providing that “[a]ll citizens of the United States shall have

the same right, in every State and Territory, as is enjoyed by white citizens thereof to

inherit, purchase, lease, sell, hold, and convey real and personal property.”97 The Fifth

Circuit often construes § 1981 and § 1982 in tandem98 and broadly interprets the rights

these antidiscrimination laws protect.99

To state a claim under § 1981 and § 1982, a plaintiff must allege: (1) that he or she

is a member of a racial minority; (2) that the defendant had an intent to discriminate on

the basis of race, and (3) that the discrimination concerned one or more of the activities

94 42 U.S.C. §§ 1981-1982. See, e.g., Oden v. Oktibbeha Cnty., Miss., 246 F.3d 458, 462 (5th Cir. 2001); see

also Patterson v. McLean Credit Union, 485 U.S. 617, 620 (1988); Gallentine v. Housing Auth. of City of

Port Arthur, Tex., 919 F. Supp. 2d 787, 807–08 (E.D. Tex. 2013); Charles v. Galliano, No. 10-811, 2010 WL

3430519, at *4 (E.D. La. Aug. 26, 2010); Williams-Boldware v. Denton Cnty., No. 4:09-cv-591, 2010 WL

2991164, at *5 (E.D. Tex. June 15, 2010).

95 § 1981(a).

96 § 1981(b).

97 42 U.S.C. § 1982.

98 Hager v. Brinker Tex., Inc., 102 F.4th 692, 700 (5th Cir. 2024) (citing Williams v. Dillard's Dep't Stores,

Inc., 211 F. App'x 327, 329 (5th Cir. 2006)).

99 Abdallah v. Mesa Air Grp., Inc., 83 F.4th 1006, 1016 (5th Cir. 2023) (“This circuit has . . . interpreted §

1981 in a broad sense.”).

enumerated in the statute.100 With respect to the second factor, when the pleaded facts

demonstrate disparate treatment, the plaintiff must allege facts showing that, at the hands

of the defendant(s), he or she was purposefully treated differently from similarly situated

individuals who were not members of the protected class.101 “An allegation that similarly

situated non-minorities received better treatment ‘could create the necessary inference

and set the predicate for establishing the . . . claim.’”102

Defendants argue Plaintiffs’ § 1981 and § 1982 claims must be dismissed because

Plaintiffs do not adequately allege that they were denied the ability to engage in the

protected activity of purchasing their home.103 Defendants further argue that Plaintiffs

failed to plead allegations of race-based discrimination beyond a speculative level.104

Plaintiffs argue that § 1981 and § 1982 are entitled to a broad interpretation, and they

protect “the enjoyment of all benefits, privileges, terms, and conditions of the contractual

relationship” stemming from the original purchase of their home, including the

governance of the homeowners association restrictions.105 Plaintiffs argue they have

sufficiently alleged discrimination on the basis of race through alleging inconsistent

violation enforcement against Plaintiffs in comparison to other residents who are

White.106

First, the Plaintiffs, African American, are members of a racial minority group.107

100 Morris v. Dillard Dep't Stores, Inc., 277 F.3d 743, 751 (5th Cir. 2001); see Sherrod v. United Way

Worldwide, 821 F. App'x 311, 316 (5th Cir. 2020); Green v. State Bar of Tex., 27 F.3d 1083, 1086 (5th Cir.

1994); Able Sec. and Patrol, LLC v. Louisiana, 569 F. Supp. 2d 617, 632 (E.D. La. 2008).

101 See, e.g., Hall v. Continental Airlines, Inc., 252 F. App’x 650, 653–54 (5th Cir. 2007); Okoye v. Univ. of

Tex. Houston Health Sci. Ctr., 245 F.3d 507, 512–13 (5th Cir. 2001); Taiyeb v. Farmer Ins. Grp., No. 4:01-

CV-0103-E, 2001 WL 1478798, at *2 (N.D. Tex. Nov. 19, 2001).

102 Body by Cook, Inc. v. State Farm Mut. Auto. Ins., 869 F.3d 381, 386 (5th Cir. 2017) (citing Crosby v.

Kilgore, 9 F.3d 104, 1993 WL 481800, at *1 (5th Cir. 1993)).

103 R. Doc. 26-1, p. 11.

104 Id.

105 R. Doc. 29, p. 6.

106 Id.

107 R. Doc. 18, p. 2.

Second, the Plaintiffs allege that Defendants’ actions affected both their contractual

privileges and property interests under § 1981 and § 1982, respectively. Plaintiffs allege

they executed a contract with The Moorings108 when they purchased their lot and that

Felger, Community Management, and The Moorings imposed discriminatory fines based

on alleged violations and that the harassment of Plaintiffs has “prevented Plaintiffs from

enjoying all of the benefits and privileges of their contractual relationship with The

Moorings.”109 Plaintiffs also allege that Defendants’ actions have interfered with their

property rights and interests as homeowners in The Moorings of Oak Harbor.110 Plaintiffs

have sufficiently pleaded allegations that Defendants’ actions have interfered with their

rights, privileges, and benefits of contracting and owning property under § 1981 and §

1982 on the basis of their race.

Third, the Plaintiffs have adequately alleged facts to demonstrate circumstantially

that Defendants enforced homeowners association restrictions and fines against the

Plaintiffs while not enforcing the same restrictions against White residents, including two

White board members of The Moorings.111 These allegations support an inference of

discrimination.112 Plaintiffs allege Felger instructed Community Management employees

108 See Arguello v. Conoco, Inc., 207 F.3d 803, 807 (5th Cir. 2000) (“The Supreme Court has suggested that

in order to impose liability on a defendant under § 1981 for the discriminatory actions of a third party, the

plaintiff must demonstrate that there is an agency relationship between the defendant and the third party.”)

(citing Gen. Building Contractors Assoc. v. Pa. United Eng’rs and Constructors, 458 U.S. 375, 393 (1982)).

109 R. Doc. 18 at p. 13, 15.

110 Id. at p. 15. Section 1982’s express language relates to “real or personal property.” Plaintiffs own real

property, and Plaintiffs have alleged interference with the use of their property. See Maldonado v.

FirstService Residential, Inc., No. CV H-20-1484, 2021 WL 2517542, *5 (S.D. Tex. June 18, 2021).

111 R. Doc. 18, p. 14. Plaintiffs allege violations at the homes of Campbell and Snipes, two alleged board

members of The Moorings, went unenforced.

112 See, e.g., Madison v. Courtney, No. 3:17-CV-01705-O, 2018 WL 9299219 (N.D. Tex. Apr. 24, 2018)

(denying a motion to dismiss based on circumstantial evidence of unequal treatment on the basis of race)

(“The Court finds that Plaintiff has circumstantially alleged that Defendant . . . intended to discriminate

against Plaintiff because he was African-American. . . . Specifically, Plaintiff alleges that he was the only

African-American passenger in first class, and that [defendant] rendered first-class coat and drink service

to every passenger except Plaintiff, only spoke disrespectfully to Plaintiff, and only contaminated Plaintiff's

drink.”).

to fine Plaintiffs for having a visible slab due to their pending pool construction, while

White neighbors were not fined for also having visible slabs.113 Plaintiffs allege they were

fined for not having their garbage can screened, while White neighbors were not fined for

the same violation.114 Plaintiffs allege Felger instructed Community Management

employees to fine Plaintiffs for having a visible water hose, while White residents were

not fined for having visible water hoses.115 Plaintiffs allege that Defendants, at Felger’s

instruction, deactivated Plaintiffs’ entry decal as a result of their growing fines, but

Defendants did not deactivate entry decals of White residents who violated The Moorings

restrictions.116 Plaintiffs further allege that some of the levied violations were “frivolous,”

including some citations for pilings117 on their property as a result of the approved pool

construction.118

In Maldonado v. FirstService Residential, Inc., the district court for the Southern

District of Texas denied a motion to dismiss of the plaintiffs’ § 1981, § 1982, and § 1985

claims.119 The Maldonado plaintiffs alleged that defendants, a homeowners association,

individual board members, and the property management company, “conspired to

discriminatorily enforce deed restrictions solely against” plaintiffs, such as through

enforcing parking restrictions against plaintiffs, but not against White residents.120 The

113 R. Doc. 18 at pp. 8-9.

114 Id. at pp. 9-10. Plaintiffs also allege that the violation notices they received included cropped images

which excluded the evidence of unscreened garbage cans at neighboring White neighbors’ homes.

115 Id. at p. 14.

116 Id.

117 Plaintiffs allege these citations were issued at the instruction of Felger. Id. at p. 8.

118 Id. at p. 7. Plaintiffs further allege that the pattern of discrimination began upon Defendants realizing

that Plaintiffs were African American, which did not occur until after Plaintiffs closed on their home and

had their construction plans approved. For example, Plaintiffs allege Felger and Campbell “assumed

Plaintiff was the contractor simply because he was African-American and drove a black pick-up truck.” Id.

at p. 6.

119 Maldonado v. FirstService Residential, Inc., No. CV H-20-1484, 2021 WL 2517542 (S.D. Tex. June 18,

2021).

120 Id. at *1-4.

district court held that the plaintiffs adequately alleged discrimination under their

homeowners association plan, in violation of § 1981, and discrimination and interference

with the use of their property under § 1982.121 The court also analyzed whether plaintiffs’

factual allegations demonstrated that each defendant intended to discriminate based on

race.122 The court held that plaintiffs sufficiently alleged facts to demonstrate that

defendants, comprised of a homeowners’ association, property management company,

board members, and other employees, “acted with discriminatory intent” because the

“defendant[s] depart[ed] from standard practice only for members of a racial minority.”123

The court reasoned that, because the plaintiffs alleged specific instances when White

residents were allowed to violate community restrictions, defendants did not enforce

rules and bylaws against White residents.124 Because plaintiffs alleged evidence of a racial

remarks by defendants, they sufficiently pleaded that defendants acted with

discriminatory intent in violation of § 1981 and § 1982.125

The Court finds Maldonado instructive and similarly holds that Plaintiffs have

sufficiently pleaded facts demonstrating an inference of discriminatory treatment based

on unequal homeowners association restriction enforcement against Plaintiffs, but not

121 Id. at *4-5 (“[T]he defendants have issued them warnings and tickets and threatened legal action that

white residents do not receive. The [plaintiffs] plausibly alleged interference with the use of their

property.”); see City of Memphis v. Greene, 451 U.S. 100, 120 (1981) ([S]ection 1982 “protect[s] not merely

the enforceability of property interests acquired by [minority] citizens but also their right to... use property

on an equal basis with white citizens.”).

122 Maldonado, 2021 WL 2517542, at *5.

123 Id.

124 Id. at *5-6.

125 Id. The court found sufficient evidence of discrimination against all defendants but one individual, who

only referred to plaintiffs as “those people,” which was not sufficient evidence of discriminatory intent. Id.

at *7. The court relied on authority recognizing that inconsistent enforcement and disparate treatment

could support a finding that plaintiffs adequately pled allegations of discriminatory intent under § 1981 and

§ 1982. See Fielder v. Sterling Park Homeowners Ass'n, 914 F. Supp. 2d 1222, 1227-28 (W.D. Wash. 2012)

(declining to dismiss § 1981 and § 1982 claims against a homeowners’ association based on allegations of

disparate enforcement of deed restrictions due to the plaintiff's race); Vill. of Arlington Heights v. Metro.

Hous. Dev. Corp., 429 U.S. 252, 267 (“Departures from the normal procedural sequence also might afford

evidence that improper purposes are playing a role.”).

against White residents.

III. Plaintiffs have sufficiently pleaded a conspiracy claim under § 1985(3).

Section 1985(3) prohibits conspiracies that deprive, “either directly or indirectly,

any person or class of persons of the equal protection of the laws.”126 “To plead a claim

under § 1985(3), a plaintiff must plead sufficient facts to plausibly show: (1) the existence

of a conspiracy; (2) for the purpose of depriving a person or class of the equal protection

of the laws, (3) acts in furtherance of the conspiracy; and (4) injury to the person or

property or deprivation of a right of a United States citizen.”127 When a plaintiff brings a

conspiracy claim based on racial animus, the plaintiff must allege sufficient facts showing

the defendants conspired to discriminate against the plaintiff on the basis of his or her

race.128 Courts within the Fifth Circuit have held that to successfully plead a 1985(3) claim,

the complaint requires a showing of racial animus.129 The Fifth Circuit instructs that a

plaintiff must plead facts beyond conclusory allegations that the Defendants conspired to

discriminate against the plaintiff based on race.130 A plaintiff must affirmatively “allege

126 42 U.S.C. § 1985(3).

127 Maldonado, 2021 WL 2517542, at *7 (citing McCoy v. Homestead Studio Suites Hotels, 177 F. App'x 442,

446 (5th Cir. 2006)).

128 Newsome v. EEOC, 301 F.3d 227, 232 (5th Cir. 2002); see Griffin v. Breckenridge, 403 U.S. 88, 102

(1971); Kush v. Rutledge, 460 U.S. 719, 725-26, (1983); Bray v. Alexandria Women's Health Clinic, 506

U.S. 263, 267-68, (1993); see also Bryant v. Military Dept. of Miss., 597 F.3d 678, 687 (5th Cir. 2010) (“The

‘language requiring intent to deprive of equal protection, or equal privileges and immunities, means that

there must be some racial, or . . . class-based, invidiously discriminatory animus behind the conspirator's

action.’”).

129 See Cantu v. Moody, 933 F.3d 414, 419 (5th Cir. 2019) (“[I]n this circuit ... the only conspiracies

actionable under section 1985(3) are those motivated by racial animus.”); Lockett v. New Orleans City, 607

F.3d 992, 1002 (5th Cir. 2010). Other courts have left open the possibility that a plaintiff may be able to

bring a 1985(3) claim on the basis of other class-based animus based on the interpretation of language in §

1985. See Cervini v. Cisneros, 593 F. Supp. 3d 530, 536-38 (W.D. Tex. 2022) (analyzing Supreme Court

and Fifth Circuit precedent on § 1985 and denying a motion to dismiss of a § 1985(3) claim and holding

that “the election advocacy portion of § 1985(3) does not require Plaintiffs to plead racial or other class-

based animus.”).

130 See Duncan v. United Servs. Auto. Ass'n Ins., No. CV 14-2989, 2016 WL 3952091, at *7 (E.D. La. July

22, 2016) (dismissing a § 1985(3) claim when a plaintiff alleged he faced “harsh treatment” on the basis of

race, but did not plead facts beyond conclusory allegations to support his claim).

facts that suggest an agreement among the alleged co-conspirators.”131 With respect to the

“conspiracy” aspect of the cause of action, courts in the Fifth Circuit have held that a

plaintiff may successfully plead a claim under § 1985(3) by sufficiently pleading claims

under § 1981 and § 1982 when the facts underlying those claims allege a conspiracy.132

Defendants argue that the § 1985 cause of action “does not apply to this case”

because the statute originally was part of the “Ku Klux Klan Act.”133 Defendants argue that

“Plaintiffs’ attempt to frame their grievances about being fined by their property owners’

association as a viable claim under this statute is disingenuous and defies credulity.”134

Further, Defendants argue that Plaintiffs fail to allege more than conclusory statements

that any conspiracy existed between the Defendants.135 In opposition, Plaintiffs argue they

pleaded facts to demonstrate that the Defendants “agreed to enforce community

restrictions only against Plaintiffs based on their race for the sole purpose of depriving

Plaintiffs of their housing rights, civil rights, and equal rights and benefits afforded under

the contract executed by Plaintiffs and The Moorings.”136

Taking the allegations in the amended complaint as true and in the light most

favorable to Plaintiffs,137 Plaintiffs have sufficiently pleaded facts to demonstrate that The

Moorings, Community Management, and Felger conspired to discriminate against the

131 Body by Cook, Inc. v. State Farm Mut. Auto. Ins., 869 F.3d 381, 389 (5th Cir. 2017) (citing Green v. State

Bar of Tex., 27 F.3d 1083, 1089 (5th Cir. 1994)).

132 Maldonado, 2021 WL 2517542, at *7 (Because the [plaintiffs] sufficiently alleged that [defendants]

conspired to violate[] § 1981 and § 1982, the [plaintiffs] sufficiently allege a claim under § 1985(3) against

[defendants].”).

133 R. Doc. 26-1, p. 12.

134 Id.

135 Id. at p. 13.

136 R. Doc. 29, p. 7.

137 Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009) (“A claim has facial plausibility when the plaintiff pleads

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

misconduct alleged.”).

Plaintiffs on the basis of their race.138 Plaintiffs allege that Defendants enforced

homeowners association restrictions against Plaintiffs on the basis of their race while

refusing to enforce similar violations against White residents.139 As described above,

Plaintiffs have alleged that Defendants levied fines for violations, totaling over $22,000,

against Plaintiffs while not enforcing the same violations against White residents.140

Plaintiffs also allege that board members of The Moorings voted to increase the fine

amounts for violations issued to Plaintiffs.141 Plaintiffs allege that Felger instructed

Community Management employees to deactivate Plaintiffs’ entry decals while not

deactivating the decals of White residents who violated homeowners association

restrictions.142 Plaintiffs allege that Defendants cropped photos in the violation notices to

purposefully exclude evidence of the same violations at neighboring White residents’

homes.143 Plaintiffs also allege that Felger, Campbell, and The Moorings conspired with

other neighbors to enable WI-FI jammers to disable Plaintiffs’ surveillance cameras

around the time Plaintiffs’ home was allegedly burgled.144 And, as reasoned for Plaintiffs’

§ 1981 and § 1982 claims, these facts, accepted as true, permit the Court to reasonably

infer that Felger, Community Management, and The Moorings acted in concert to enforce

fines for violations of community restrictions, based on an inference of racial animus,

against Plaintiffs while not enforcing the same violations against White residents. 145 The

138 Plaintiffs also allege unidentified neighbors used racist epithets towards Plaintiffs, and The Moorings

board agenda items “address[ed] the problem of loud and vulgar music being played by certain residents.”

R. Doc. 18, p. 11, 22. The Court notes these allegations in connection with Plaintiffs’ conspiracy claims.

139 Id. at p. 16.

140 Id. at p. 11.

141 Id. at p. 17.

142 Id.

143 Id.

144 Id. at pp. 17-18.

145 See Maldonado v. FirstService Residential, Inc., No. CV H-20-1484, 2021 WL 2517542, at *7 (S.D. Tex.

June 18, 2021) (“Because the [plaintiffs] sufficiently alleged that [defendants] conspired to violated § 1981

and § 1982, [they] sufficiently allege a claim under § 1985(3)”) (citing Cho v. Itco, Inc., 782 F. Supp. 1186,

1187 (E.D. Tex. 1992)).

Court finds Plaintiffs have plausibly alleged a § 1985(3) claim.146

IV. Plaintiffs’ state law tort claims are not facially prescribed.

A “motion to dismiss may be granted on the basis of prescription if the

untimeliness appears from the face of the complaint.”147 When a “plaintiff’s claims are

prescribed on the face of the petition, plaintiff has the burden of proving the claims are

not prescribed.”148 At the motion to dismiss stage, a court may dismiss a claim when the

complaint “on its face show[s] a bar to relief.”149

State law claims occurring before July 1, 2024150 for intentional or negligent

infliction of emotional distress and other negligence are governed by the one-year

prescriptive period for delictual actions set forth in Louisiana Civil Code article 3492.151

While article 3492 specifies that the one-year prescriptive period begins to run on the date

the injury or damage is sustained,152 the Louisiana Supreme Court has applied a

continuing tort theory of prescription to claims for intentional infliction of emotional

distress when the plaintiff alleges “a pattern of on-going, repeated harassment which

gradually causes [him or] her serious emotional injury.”153 In such cases, prescription does

not begin to run until the complained-of conduct abates.154

146 See id.

147 Cranner v. Coletti, No. CIV.A. 13-6681, 2014 WL 1407328, at *2 (E.D. La. Apr. 10, 2014).

148 Caldwell Wholesale Co., L.L.C. v. R.J. Reynolds Tobacco Co., No. CV 17-0200, 2018 WL 2209165, at *4

(W.D. La. May 11, 2018), aff'd sub nom., Caldwell Wholesale Co., L.L.C. v. R J Reynolds Tobacco Co., 781

F. App'x 289 (5th Cir. 2019).

149 Cutrer v. McMillan, 308 F. App’x 819, 820 (5th Cir. 2009) (per curiam) (quotations omitted).

150 The Louisiana Legislature has since repealed Article 3492, effective July 1, 2024, and has passed Act 423,

extending the liberative prescription period for delictual actions to two years for actions occurring after July

1, 2024. LA. C. C. ART. 3493.11 (“Delictual actions are subject to a liberative prescription of two years . . . .

The provisions of this Act shall be given prospective application only and shall apply to delictual actions

arising after the effective date of this Act.”). LA. C.C. ART. 3493.12.

151 King v. Phelps Dunbar, L.L.P., 743 So. 2d 181, 187 (La. 1999).

152 See LA. C.C. ART. 3492.

153 Bustamento v. Tucker, 607 So. 2d 532, 537–40 (La. 1992).

154 Id.

Defendants argue that, with respect to Plaintiffs’ state law claims of negligence and

intentional infliction of emotional distress, “most of allegations in Plaintiffs’ complaint

occurred over one year prior to the filing of Plaintiffs’ suit and are barred by

prescription.”155 Defendants argue that the two incidents when residents of The Moorings

called the police occurred in March and May of 2022, and the alleged home break-in

occurred in August 2022.156 Defendants argue these three events occurred more than one

year prior to the filing of the complaint.157 Defendants argue that, under article 3492,

which provides a one-year liberative prescription period for Louisiana delictual actions,

Plaintiffs’ claims have prescribed, and “[t]he remaining actions in the Complaint lack a

specific timeframe.”158

Plaintiffs admit that these three events occurred over a year before they filed suit,

but agree their tort claims are not prescribed based on the “continuing violations

doctrine.”159 Plaintiffs argue that “each of the acts and omissions raised were part of an

organized scheme leading up to and including the January 25, 2024 demand for

payment.”160 Plaintiffs further argue that much of Defendants’ conduct alleged in

Plaintiffs’ amended complaint “occurred less than one year before the Complaint was

filed,” and all of the activity was “in furtherance of a conspiracy to discriminate based on

race.”161

Plaintiffs allege that they began construction of their home on November 2, 2021.162

Plaintiffs allege Defendants’ discriminatory conduct began in 2022, with three incidents

155 R. Doc. 26-1, p. 14, 16.

156 Id.

157 Id.

158 Id.

159 R. Doc. 18, p. 22.

160 R. Doc. 29, p. 8.

161 Id. at p. 9.

162 R. Doc. 18, p. 4.

occurring on March 27, 2022,163 May 7, 2022,164 and August 15, 2022.165 Plaintiffs allege

the remaining acts occurred “after [Plaintiffs moved] into the community” in February

2023.166 Plaintiffs allege that Defendants fined Plaintiffs throughout 2023, and

Defendants deactivated Plaintiffs’ entry decal on August 24, 2023 and on October 29,

2023.167 Plaintiffs allege that Defendants issued a final demand for payment of the fines

on January 25, 2024.168 Plaintiffs filed their complaint on January 30, 2024.169 In their

amended complaint, Plaintiffs assert that the Defendants’ acts “were part of an organized

scheme leading up to and including the January 25, 2024 demand for payment,”

beginning with the call to police made by Campbell on May 7, 2022,170 and extending

throughout the course of the year 2023 after Plaintiffs moved into their home.171 Because

“plaintiffs' [amended complaint] alleges a continuous course of conduct that extended to

less than one year before suit was filed, plaintiffs' action is not facially prescribed, and the

burden of proof remains with the defendant to establish prescription.”172 The Court finds

Plaintiffs’ claims of “an organized scheme”173 of discrimination and harassment as an

alleged “continuous course of conduct” leading up to the 2024 payment demand are not

facially prescribed. Defendants have not otherwise established that Plaintiffs’ intentional

infliction of emotional distress and negligence claims are prescribed.

163 Id. at p. 7 (incident where an unidentified neighbor called police on Plaintiffs).

164 Id. at p. 6 (incident where Campbell called police on Plaintiffs for contractors who were double-parked).

165 Id. at p. 7 (date of the alleged burglary committed by unidentified White neighbors and when Defendants

allegedly disabled Plaintiffs’ security cameras).

166 Id. at p. 4, 7.

167 Id. at p. 5.

168 Id. at p. 11.

169 R. Doc. 1.

170 Because Plaintiffs allege that the “organized scheme” began with Campbell’s police call in May 2022,

they appear to concede that the March 2022 police call made by the unidentified neighbor is not a part of

the alleged conspiracy. Id. at p. 22.

171 Id.

172 Allbritton v. Int'l Mins. & Chem. Corp., No. CIV.A. 06-0774, 2007 WL 3146249, at *6 (W.D. La. Oct. 24,

2007) (citing Bustamento v. Tucker, 607 So.2d 532, 542 (La.1992)).

173 R. Doc. 18, p. 22.

V. Plaintiffs have not sufficiently alleged a state law intentional infliction

of emotional distress claim.174

To establish an intentional infliction of emotional distress claim, a plaintiff “must

establish (1) that the conduct of the . . . Defendants was extreme and outrageous; (2) that

the emotional distress suffered by [Plaintiffs] was severe; and (3) that the . . . Defendants

desired to inflict severe emotional distress or knew that severe emotional distress would

be certain or substantially certain to result from their conduct.”175 Extreme and outrageous

conduct is that which exceeds “all possible bounds of decency” and is “regarded as

atrocious and utterly intolerable in a civilized community.”176 “The conduct must be

intended or calculated to cause severe emotional distress and not just some lesser degree

of fright, humiliation, embarrassment, worry, or the like.”177

Defendants argue that in the amended complaint, Plaintiffs fail to “include

adequate factual allegations or details supporting their claim for” intentional infliction of

emotional distress.178 Defendants further argue that Plaintiffs’ allegations do not rise to

the level of “extreme and outrageous conduct” under Louisiana Supreme Court

jurisprudence.179

Plaintiffs argue that “whether Defendants’ conduct amounts to extreme and

dangerous conduct and whether the distress suffered was severe are both within the

province for the trier of fact to determine.”180 Plaintiffs allege that Defendants

“intentionally engaged in extreme and outrageous conduct by 1) conspiring to deprive

174 The Court will only address the IIED claims asserted against Community, The Moorings, and Felger, as

Campbell has not joined this motion.

175 McPherson v. Ochsner Health Sys. Skilled Nursing Facility W. Campus, No. CV 23-2433, 2024 WL

3742706, at *4 (E.D. La. Aug. 9, 2024) (citing White v. Monsanto Co., 585 So. 2d 1205, 1209 (La. 1991)).

176 White, 585 So. 2d at 1209.

177 Id. at 1210.

178 R. Doc. 26-1, p. 16.

179 Id.

180 R. Doc. 18, p. 22.

Plaintiffs of their equal rights and benefits under the community restrictions and

covenants, 2) weaponizing the Sheriff’s office by calling 911 to report Plaintiff,181 3)

refusing to enforce violations by White homeowners, and 4) revoking or limiting access

to the community without authority to do so.”182 Plaintiffs allege they suffered severe

distress and anxiety, that they lost sleep due to fear over Defendants’ conduct, and that

they “endured nightmares” at the “mere thought of losing their dream home due to

discrimination and harassment by Defendants.”183 Plaintiffs also allege they suffered

severe distress while trying to get home to tend to an ill child when their entry decal to

the community was deactivated, preventing them from accessing the subdivision to care

for their child.184 Furthermore, Plaintiffs allege Defendants conspired to unequally

enforce The Moorings community restrictions against them on the basis of race, causing

plaintiffs to “deeply fear losing their home due to unfairly assessed liens.”185

The Court finds Plaintiffs have failed to adequately allege facts to support their

intentional infliction of emotional distress claims against Defendants. In their amended

complaint, Plaintiffs allege Defendants conduct was “extreme and outrageous” and

“would not pass the boundaries of decency and would be utterly intolerable to civilized

society.”186 Plaintiffs recite conclusory statements that “Defendants desired to inflict

severe emotional distress” because “Defendants conspired amongst themselves . . . to

harass and discriminate against Plaintiffs.”187 Viewing the allegations in the amended

181 Because Plaintiffs allege that Campbell called the police on Plaintiffs on this occasion, the Court will not

address this allegation in this order and reasons on the grounds that Campbell did not join the instant

motion to dismiss.

182 R. Doc. 18, p. 18.

183 Id. at p. 19.

184 Id.

185 Id.

186 Id. at p. 24.

187 Id. at p. 19.

complaint in the light most favorable to Plaintiffs, Plaintiffs have not alleged sufficient,

particular facts to demonstrate Defendants engaged in extreme and outrageous

conduct,188 intentionally acting to inflict emotional distress on Plaintiffs.189 Liability for

intentional infliction of emotional distress has typically been found “where the conduct

has been so outrageous in character, and so extreme in degree, as to go beyond all possible

bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized

community.”190 Plaintiffs have not pleaded facts to show that Defendants acted

outrageously, atrociously, or in ways that are “utterly intolerable in a civilized

community,”191 with the intent or knowledge that Plaintiffs would suffer emotional

distress as a result of their conduct. Thus, Plaintiffs’ intentional infliction of emotional

distress claims will be dismissed.

VI. Plaintiffs have sufficiently alleged state law negligence claims.

To successfully plead a negligence claim, courts applying Louisiana law conduct a

duty-risk analysis.192 There are five elements of a negligence claim under Louisiana law:

188 In Maldonado v. FirstService Residential, Inc., a factually analogous case discussed above, the district

court dismissed Plaintiffs’ IIED claims despite finding plaintiffs sufficiently plead claims under the FHA

and CRA. Plaintiffs filed suit over defendants’ unequal enforcement of homeowners association deed

restrictions, similar to the Plaintiffs’ allegations in this matter. The court held that “[t]he allegations as to

[defendants] do not rise above ‘indignities, threats, annoyances, [or] petty oppressions’” and were

insufficient to support an IIED claim. No. CV H-20-1484, 2021 WL 2517542, at *7 (S.D. Tex. June 18, 2021).

189 See Mandawala v. Struga Mgmt., No. 21-50644, 2023 WL 2712500 (5th Cir. Mar. 30, 2023) (affirming

district court’s dismissal of IIED claims against defendants, including apartment management company

and staff, when the plaintiff, a Black resident of an apartment complex, alleged the defendants unlawfully

withheld his packages and then initiated eviction proceedings against him; the court reasoned that plaintiff

did not sufficiently allege facts to show this conduct was extreme and outrageous).

190 Fletcher v. Wendelta, Inc., 999 So.2d 1223, 1230 (La. Ct. App. 2d. Cir. 2009).

191 Plaintiffs allege Defendants conduct was “extreme and outrageous because the same would not pass the

boundaries of decency and would be utterly intolerable to civilized society,” but they do not allege specific

facts to demonstrate this allegation. R. Doc. 18, pp. 18-19. See Gomez v. Galman, 18 F.4th 769, 781 (5th Cir.

2021) (affirming dismissal of a plaintiff’s IIED claim against police officers who assaulted plaintiff during

an arrest because plaintiff failed to allege the officers acted extremely and outrageously and failed to allege

the officers intended to inflict severe emotional distress upon him).

192 See, e.g., Lemann v. Essen Lane Daiquiris, Inc., 923 So. 2d 627, 632-33 (La. 2006) (citing Mathieu v.

Imperial Toy Corp., 646 So.2d 318, 321 (La. 1994)).

duty, breach, factual causation, legal causation, and damages.193 To survive a Rule 12(b)(6)

motion, under the duty element, a plaintiff must allege a specific standard of care to which

the defendant was required to conform his conduct.194 “The inquiry into a defendant's

particular duty ‘is whether the plaintiff has any law (statutory, jurisprudential, or arising

from general principles of fault) to support the claim that the defendant owed him a

duty.’”195 “The Fifth Circuit has recognized that Louisiana law may look to federal statutory

and regulatory schemes in delineating the scope of a duty under the duty-risk analysis.”196

Additionally, under Louisiana law, “[n]egligent hiring and supervision is recognized as a

cognizable tort.”197

Plaintiffs assert negligence claims against The Moorings, Community

Management, and Felger.

As to The Moorings, Plaintiffs assert claims based on negligent hiring, failure to

train, and negligent supervision theories.198 Plaintiffs allege that “The Moorings owed a

duty to Plaintiffs to ensure that Plaintiffs’ housing and civil rights were not violated by

agents of The Moorings.”199 Plaintiffs allege that Community Management, Felger, and

Campbell were “agents” of The Moorings.200 Plaintiffs allege that The Moorings “breached

193 Jack v. Evonik Corp., 79 F.4th 547, 556 (5th Cir. 2023); LA. C. C. ART. 2315.

194 Butler v. Denka Performance Elastomer, L.L.C., 16 F.4th 427, 444-45 (5th Cir. 2021) (affirming a district

court’s dismissal under Rule 12(b)(6) because the plaintiff failed to plead a standard of care governing his

claims).

195 Id. at 445.

196 Merrell v. 1st Lake Props., Inc., No. CV 23-1450, 2024 WL 640013, at *3 (E.D. La. Feb. 15, 2024) (citing

Bd. of Comm'rs of Se. La. Flood Prot. Auth. – East v. Tenn. Gas Pipeline Co., L.L.C., 850 F.3d 714, 727 (5th

Cir. 2017) (“[T]his court has often held that violation of a federal law or regulation can be evidence of

negligence.”)).

197 Matthews v. United Fire & Cas. Ins. Co., 213 So. 3d 502, 506 (La. Ct. App. 4th Cir. 2017); Kelley v. Dyson,

10 So. 3d 283, 287 (La. Ct. App. 5th Cir. 2009) (“When an employer hires an employee who in the

performance of his duties will have a unique opportunity to commit a tort against a third party, he has a

duty to exercise reasonable care in the selection of that employee.”).

198 R. Doc. 18, pp. 20-21.

199 Id. at p. 20.

200 Id.

said duty by failing to train, monitor, and/or supervise Defendant . . . Felger, Defendant

Community, and other agents working on behalf of The Moorings.”201 Plaintiffs allege that

“The Moorings failed to ensure that” Felger, Community, and other agents “complied with

the Fair Housing and Civil Rights Acts by allowing a conspiracy against Plaintiffs to take

shape,” and they failed to ensure its agents equally enforced community restrictions and

covenants.202 As to Community Management, Plaintiffs allege “Community

[Management] is liable for negligence because it also failed to ensure that its employees

and agents did not violate the housing and civil rights afforded to Plaintiffs.”203 Plaintiffs

allege Community Management failed to train, monitor, or supervise its employees, and,

as a result, its employees failed to comply with the Fair Housing Act and Civil Rights

Act.204 The amended complaint then alleges that “The Moorings and Community

[Management] failed to take prompt action to correct or end their own discriminatory

conduct, as well as the conduct of Felger, Campbell, and other employees or agents.

Plaintiffs allege Defendants were aware that Plaintiffs were being subjected to extensive

and unwelcome harassment based on race because it was orchestrated and coordinated

by Defendants.”205

As to Felger, Plaintiffs allege that Felger, as a Defendant, “subjected Plaintiffs to

severe and pervasive harassment, threats, discrimination and intimidation because of

race.”206 Plaintiffs allege that Felger “created a hostile environment that unreasonably

interfered with Plaintiffs’ right to use and enjoy their home.”207 Plaintiffs allege that Felger

201 Id.

202 Id.

203 Id. at p. 21.

204 Id.

205 Id. at pp. 22-23.

206 Id. at p. 22.

207 Id. at p. 23.

negligently violated the Fair Housing Act and Civil Rights Act by acting to deprive

Plaintiffs “of the equal rights and benefits afforded to them under the community

restrictions and covenants.”208 Throughout their complaint, Plaintiffs emphasize that

Felger instructed other employees to issue citations, deactivate Plaintiffs’ entry decal,209

disable Plaintiffs’ security cameras,210 and conspire to jam Plaintiffs’ wifi.211 They also

allege he voted to increase fine amounts imposed on Plaintiffs.212

Plaintiffs allege that as a result of Defendants’ negligent conduct, they were

subjected to emotional distress and suffered other injuries.213 Plaintiffs allege that

Defendants214 and other White neighbors subjected Plaintiffs to severe and pervasive

harassment, threats, discrimination, and intimidation because of race,” creating a hostile

environment for Plaintiffs.215 Plaintiffs allege that as a result of Defendants’ conduct, they

“suffered a violation of their fair housing rights, civil rights, loss of the use and enjoyment

of their property, and emotional distress, including anxiety, fear, humiliation, and

degradation.”216

Defendants argue Plaintiffs’ allegations of negligence “consist[] solely of

conclusions of law, without any specific factual allegations to support the claim . . . .” and

“Plaintiffs wholly fail to identify any specific injury caused by the alleged negligence

. . . .”217 Plaintiffs argue that because Defendants “point to no other pleading defects with

208 Id. at p. 20.

209 Id. at pp. 9-11, 14.

210 Id. at p. 18.

211 Id. at p. 17.

212 Id.

213 Id. at p. 21; see R. Doc. 29, p. 10.

214 This allegation, on its face, implicates all Defendants, including Felger and Campbell.

215 R. Doc. 18, p. 22.

216 Id. at p. 23.

217 R. Doc. 26-1, pp. 16-17.

respect to the remaining elements of negligence,” their negligence claims should not be

dismissed.218

The Court finds that Plaintiffs have adequately alleged facts to support their

negligence claims against The Moorings, Community Management, and Felger. Plaintiffs

have alleged that The Moorings and Community Management were responsible for hiring

and training their employees and agents. Plaintiffs have alleged that The Moorings and

Community Management had a “duty to ensure that Plaintiffs’ housing and civil rights

were not violated by agents of The Moorings.”219 Plaintiffs also have alleged Felger and

Community Management acted on behalf of The Moorings.220 Plaintiffs have alleged facts

to show that Felger “orchestrated and coordinated”221 the actions of other employees who

fined and discriminated against Plaintiffs based on race in violation of the Fair Housing

and Civil Rights Acts. Plaintiffs have alleged that The Moorings, Community

Management, and Felger breached a duty by failing to ensure their employees and agents

did not violate Plaintiffs’ civil rights or “deprive Plaintiffs of the equal rights and benefits

afforded to them under the . . . restrictions and covenants” where “employees [were to]

enforce[] the . . . restrictions and covenants against all residents regardless of race.”222

Plaintiffs assert Defendants’ negligent conduct caused them to suffer emotional distress

and other injuries.223

218 Id.

219 R. Doc. 18, p. 20.

220 Id. at p. 20.

221 Id. at pp. 22-23.

222 Id. at p. 21.

223 Id. The allegations in Plaintiffs’ complaint support claims for economic injury. Because the remaining

elements of the duty-risk analysis are questions of fact, the Court “cannot decide them at this early stage.”

Gomez v. Galman, 18 F.4th 769, 781 (5th Cir. 2021) (citing Griffin v. Kmart Corp., 776 So. 2d 1226, 1231

(La. Ct. App. 5th Cir. 2000) (“The remainder of the questions under the duty-risk formula-breach of duty,

cause-in-fact, scope of liability or scope of protection, and damages-are factual determinations by the trier

of fact.”)).

Therefore, the Court finds that accepting these factual allegations as true, Plaintiffs

have satisfied the standard duty-risk analysis used to evaluate Louisiana negligence

claims and their negligent infliction of emotional distress claims224 at this stage.225 The

Court will not dismiss Plaintiffs’ state law negligence claims.

CONCLUSION

IT IS ORDERED that the Motion to Dismiss2* is GRANTED IN PART and

DENIED IN PART.

Defendants’ motion is GRANTED with respect to Plaintiffs’ state law intentional

infliction of emotional distress claims.

Defendants’ motion is DENIED with respect to the Plaintiffs’ Fair Housing Act,

Civil Rights Act, and state law negligence claims.

New Orleans, Louisiana, on this 17th day of September, 2024.

SUSIE sion

UNITED STATES DISTRICT JUDGE

224 See Moresi v. State Through Dep't of Wildlife & Fisheries, 567 So. 2d 1081, 1095 (La. 1990) (holding that

generally, a defendant will not be liable under Louisiana law where the defendant's conduct was merely

negligent and the emotional injury is unaccompanied by physical injury, subject to exceptions, including

that the distress was a result of a separate tort involving consequences to a plaintiff's person or property).

Plaintiffs allege they suffered emotional distress and “other injuries” as a result of Defendants’ conduct,

including economic injury. The Court finds these allegations sufficient to support their negligence claims at

this stage.

225 See Louisiana Fair Hous. Action Ctr. Inc. v. Plantation Mgmt. Co. LLC, No. CV 20-2339, 2022 WL

612719, at *8 (E.D. La. Mar. 2, 2022) (denying a motion to dismiss of a Fair Housing Act plaintiffs state law

negligence claims on a negligent supervision theory).

226 Doc. 26.

392