# Terri L. Hamad v. Woodcrest Condominium Association > Court of Appeals for the Sixth Circuit · April 22, 2003 · 328 F.3d 224 URL: https://www.frixlaw.com/law-library/cases/9496028 ## Case - **Full name:** Terri L. HAMAD Et Al., Plaintiffs-Appellants, v. WOODCREST CONDOMINIUM ASSOCIATION Et Al., Defendants-Appellees - **Court:** Court of Appeals for the Sixth Circuit - **Decided:** April 22, 2003 - **Citations:** 328 F.3d 224; 2003 U.S. App. LEXIS 7495; 2003 WL 1906343 - **Precedential status:** Published - **Opinion:** Dissent by Nelson - **Judges:** Nelson, Cole, Gilman - **Cited by:** 179 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9496028 ## How later opinions describe it (automated extraction) - holding in FHA case that “plaintiffs’ retaliation claims should have been submitted to the jury, which could have awarded nominal damages, at a minimum, upon a finding in their favor” - holding that plaintiffs had standing because they "suffered the stigmatic harm of living in a community whose members were segregated on the basis of a prohibited classification” - finding that remarks by the district judge, when considered in context, did not demonstrate that he was partial or that he could not put aside his personal views - rejecting argument that appellate court should issue preliminary injunction despite district court’s failure to apply the correct law - reversing denial of leave to amend because while the district court said discovery had closed before the plaintiff asked to amend the complaint, it had never entered a scheduling order ## Opinion text DAVID A. NELSON, Circuit Judge, dissenting. If the plaintiffs suffered any palpable injury in what the district court accurately characterized as their “neighborhood fight,” it does not seem to me that the injury was the result of any violation of the Fair Housing Act. On the record before us, I believe that the defendants were entitled to summary judgment on the “familial sta *240 tus” discrimination claims, just as I believe they were entitled to judgment as a matter of law on the retaliation claims. Accordingly, and because I am not persuaded that the district court abused its discretion in denying leave to amend the complaint, I would affirm the district court’s disposition in all respects. I It may be helpful to take a brief look at the factual context in which this lawsuit arose. The opening salvo of the battle seems to have been fired in September of 1999, when plaintiff Terri Hamad sent a letter to members of the condominium association detailing a series of complaints against the association’s board of directors. Signing her letter as “Owner # 57 and Director, Monroe County Commission on Aging,” Mrs. Hamad complained that the board had attempted to prevent an elderly co-owner (an 87-year-old widow, according to subsequent newspaper accounts) from arranging for bus service at the door of her building. Mrs. Hamad’s letter said that the board had “threatened Lake Erie Transit with a lawsuit if they enter the drive to pick up the co-owner.” This litigation threat was the product of a board meeting held without the knowledge of association members and in violation of the association’s bylaws, according to Mrs. Hamad. Decisions by the board to spend money on certain physical improvements were also said to have been taken without the knowledge and approval of the association’s members. Finally, Mrs. Ha-mad wrote, “again without our knowledge, preparations are being made to turn this complex into a 50+ complex.” Although the rule limiting families with children to first-floor units had been in effect for over a decade, Mrs. Hamad made no mention of the first-floor rule in her letter. Mrs. Hamad also sent a letter to the editor of a local newspaper, describing the board’s refusal to allow buses on Wood-crest’s driveway as “disgusting,” “disrespectful,” and “illegal.” The newspaper declined to publish the letter, but ran a feature article on the “battle over buses.” Mrs. Hamad later testified that she had sought publicity of the busing issue in an effort to “expose the board and embarrass them publicly.” In October, Mrs. Hamad filed a complaint with the Michigan Department of Consumer and Industry Services alleging that Woodcrest’s property manager had received an illegal “referral fee” from a real estate broker. The Department eventually concluded that the allegation could not be substantiated. The next month, in her capacity as director of the county commission on aging, Mrs. Hamad complained to the Michigan Civil Rights Commission of several “Fair Housing Issues” at Woodcrest. These included “[ijntimidation and harassment” of the elderly widow who sought bus service at her door 1 and the holding of board meetings without notice to the residents. Mrs. Hamad also complained, for the first time, that “[f]amilies with children are limited to first floor condos.” She later wrote to a member of the Michigan legislature for help “regarding the bus situation at Woodcrest.” In April of 2000, the president of the board of the condominium association wrote to the county commissioners to protest the actions of the commission on aging with respect to the busing issue. The *241 letter posed the question, “Why did the Monroe County Commission on Aging champion the cause and concern of one resident while ignoring the concerns of the remaining senior residents?” In May of 2000, plaintiff Kayla Joyella distributed a letter to other Woodcrest owners “to make sure all owners are aware of the recent conduct [of] board members [and the property manager].... ” The letter began with a reference to the “referral fee” that Mrs. Hamad had reported to the Michigan Department of Consumer and Industry Services, and the letter went on to recommend that other owners contact their title companies to determine whether similar fees had been paid at their closings. Ms. Joyella then complained that she was treated rudely when she asked the property manager about the bylaw limiting children to first-floor units. Ms. Joyella’s letter suggests that she did not intend, at that time, to seek permission to have her nephew live with her. Her only reason for wanting to see the bylaw, her letter says, was to make a copy to show to her nephew “so he would know it wasn’t that she did not want him, but she had to honor the rules.” The board and property manager distributed a letter of their own rebutting the points raised in Ms. Joyella’s letter. The board also circulated a portion of the minutes from a board meeting of May 23, 2000, where Ms. Joyella had asked board members to sign a document stating that her nephew could not move in with her. According to the minutes, the meeting included “[m]uch heated discussion ... concerning [Ms. Joyella’s] letter and its contents that included liable [sic] and slanderous remarks.” It is important to note that the “heated discussion” did not concern the first-floor rule or the board’s enforcement of it. Prior to the filing of their lawsuit, to summarize, Mrs. Hamad and Ms. Joyella were both embroiled in emotionally-charged disputes with the board. Mrs. Hamad’s complaints against the board related primarily to the busing issue; she raised the issue of discrimination against families with children only incidentally. Ms. Joyella’s complaints focused on her treatment by the property manager and board members, not on her inability to have her nephew live with her. It was against this background that the Hamads and Ms. Joyella filed their lawsuit under the Housing Act in June of 2000. II The Supreme Court has made it clear that standing to sue under the Housing Act is as broad as Article III of the Constitution permits. See Gladstone, Realtors v. Bellwood, 441 U.S. 91, 109 , 99 S.Ct. 1601 , 60 L.Ed.2d 66 (1979); Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205, 209 , 93 S.Ct. 364 , 34 L.Ed.2d 415 (1972). But, of course, it can be no broader. Like any other plaintiff, a plaintiff suing under the Housing Act must satisfy the constitutional requirement of “injury-in-fact;” ie., he must have suffered “ ‘a distinct and palpable injury to himself ... that is likely to be redressed if the requested relief is granted.” Gladstone, 441 U.S. at 100 , 99 S.Ct. 1601 (quoting Warth v. Seldin, 422 U.S. 490, 501 , 95 S.Ct. 2197 , 45 L.Ed.2d 343 (1975)). I am not persuaded that injury-in-fact necessarily resulted from the plaintiffs’ having resided in a condominium complex with a presumably illegal first-floor rule. Gladstone and Trafficante do establish that a resident of a community need not be a target of illegal discrimination in order to be injured by it. See Gladstone, 441 U.S. 91 ; Trafficante, 409 U.S. at 209-11 , 93 S.Ct. 364 . As I read these cases, how *242 ever, they do not establish that every discriminatory pohcy necessarily injures every resident of the community where the pohcy exists. For one thing, the Supreme Court in Gladstone expressly recognized that residents’ standing to protest discrimination within their community depends on “the presence of absence of a ‘distinct and palpable injury.’ ” Gladstone, 441 U.S. at 114 , 99 S.Ct. 1601 (quoting Worth, 422 U.S. at 501 , 95 S.Ct. 2197 ). The Court noted that “[a] ‘neighborhood’ whose racial composition allegedly is being manipulated may be so extensive in area, so heavily or even so sparsely populated, or so lacking in shared social and commercial intercourse that there would be no actual injury to a particular resident.” Id. This observation cannot be squared with the notion that injury-in-fact is necessarily suffered by every resident of a community where discrimination is taking place. Gladstone and Trafficante involved racial discrimination, moreover, and the Supreme Court expressly rehed on “the importance of the ‘benefits from interracial associations’ ” in concluding that the challenged discriminatory practices harmed residents who were not the targets of discrimination. Gladstone, 441 U.S. at 112 , 99 S.Ct. 1601 (quoting Trafficante, 409 U.S. at 210 , 93 S.Ct. 364 ). Whether the benefits of allowing children on every floor of a condominium complex are as important as the benefits of racial integration remains an open question, I beheve. Given these considerations, it is appropriate to take a close look at the particular injuries the plaintiffs claim to have suffered. In doing so, we need to determine whether the claims are supported by facts actually alleged in the complaint or revealed in discovery. First, the plaintiffs argue here that the challenged rule deprived them of “the benefits of living in an environment integrated with children.” It is true that harm of this type might satisfy the injury-in-fact requirement. Nowhere in their amended complaint, however, do the plaintiffs allege that they suffered such harm. They allege only “economic losses, humiliation, embarrassment, mental anguish, inconvenience, anger, and the deprivation of civil rights.” Likewise, Mr. and Mrs. Hamad never testified that they were deprived of social relations, business advantages, or other benefits attributable to living in a community with more children. Only Ms. Joyella has stated, in an affidavit, that Wood-crest’s bylaws “prevented [her] from enjoying the social benefits of living in a community that includes families.” This unadorned and conclusory statement presents a close call, but I am not persuaded that any of the plaintiffs has alleged sufficient facts to support the claim of injury. Second, the plaintiffs contend that they suffered emotional distress and indignity because of the challenged rule. There is, to be sure, evidence that the plaintiffs felt unwelcome and even harassed during their residency at Woodcrest. The plaintiffs’ distress is clearly attributable to their disputes with Woodcrest’s board, however, and not to enforcement of Woodcrest’s first-floor rule. The Hamads lived at Woodcrest for over two years, and had a child for about 13 months, 2 before their relationship with the board became strained as a result of Mrs. Hamad’s advocacy on the busing issue. Similarly, it was not enforcement of the first-floor rule that caused Ms. Joyella’s distress; her discomfiture stemmed from her letter-writing battle with the board and from “gossip and slander” about her nephew. And none of *243 the plaintiffs offered any evidence of “stigmatic” harm from living in a community where children were welcome only in ground-floor units. Third, the Hamads maintain that they have suffered inconvenience from living in a ground-floor condominium and that Woodcrest’s rule has made selling their condominium more difficult. But the Ha-mads chose the ground-floor condominium after being shown two available third-floor units, which they were free to purchase. And the rule does not prevent the Hamads from selling their condominium to anyone they choose, including a family with children. The Hamads speculate that Wood-crest’s rule has affected the market for their condominium, but the record does not support that speculation. Mrs. Hamad testified that the potential buyers who had viewed the condominium decided not to purchase it for reasons having nothing to do with children: “they have pets,” “[t]hey don’t want a first-floor unit,” “they’re looking for less space,” or they “weren’t ready to buy yet.” 3 Fourth, Ms. Joyella claims that she was deprived of the opportunity to live with her nephew. It is true that the Board initially denied permission for Ms. Joyel-la’s nephew to live with her (and, at her request, signed a document to that effect). But Ms. Joyella did not have custody of her nephew at that time. When he was finally placed in her care, the nephew in fact came to live with Ms. Joyella at Wood-crest. There is no evidence that he could have lived with his aunt sooner had it not been for the board’s denial of permission. 4 In sum, the record does not demonstrate that the plaintiffs suffered any “distinct and palpable” injury caused by enforcement of the challenged rule; I would affirm the district court’s summary judgment rulings on that basis. For the same reason, I would affirm the district court’s denial of the plaintiffs’ motion for a preliminary injunction. And there are other reasons why the plaintiffs are not entitled to injunctive relief. In a settlement agreement with the United States, Woodcrest has agreed to rescind the challenged rule. The plaintiffs’ claim for injunctive relief is thus moot insofar as it relates to “familial status” discrimination. For the reasons set forth below, I believe that the defendants were entitled to judgment as a matter of law on the retaliation issue; that being so, I do not believe that the plaintiffs have any right to an injunction against retaliation. Ill As to the district court’s granting of judgment as a matter of law on the plaintiffs’ retaliation claim, the history of events described above suggests that the defendants took no action against the plaintiffs “on account of’ the plaintiffs’ exercise of their right to sue under the Housing Act. See 42 U.S.C. § 3617 . The “neighborhood fight” had been in progress for months, after all, when the defendants — exercising their right to petition for redress of grievances — wrote to the county commissioners about the lawsuit recently filed by the “Director of Monroe County Commission on Aging,” Mrs. Hamad. The defendants complained that *244 the lawsuit was contrary to the purpose of the commission on aging and asked the county commissioners to “do whatever [they] can to eliminate the situation.” There was also evidence at trial that one of the defendants had spoken with the chairman of the board of county commissioners about the lawsuit. These contacts with what may be considered Mrs. Hamad’s employer hardly constituted illegal retaliation for an exercise of rights under the Housing Act. The contacts had nothing to do with fair housing rights, as I see it, and everything to do with the board’s perception that Mrs. Ha-mad was subjecting the condominium association to unfair harassment and expense. In any event, the defendants did no more than inform the county commissioners of the lawsuit, express their displeasure, and ask for help. What kind of polity is it that would brand this as actionable retaliation? As to Ms. Joyella, there was evidence at trial that the defendants posted two or three notes on her door with regard to violations of Woodcrest’s bylaws. These notes were not of a threatening or harassing nature, and they appear to have been concerned with genuine violations. I do not think they can reasonably be construed as retaliatory. IV The district court did not abuse its discretion, in my opinion, by denying the plaintiffs’ motion to amend their complaint. The amendment would have added generalized allegations that the defendants engaged in “[o]ther retaliatory acts” after the filing of the plaintiffs’ lawsuit. By broadening the scope of the complaint without giving the defendants notice of the specific acts of which they were accused, the amendment might well have prejudiced the defendants unfairly. And the fact that the motion to amend was made late in the pretrial process increased that danger. The majority opinion faults the district court for its comment that the motion was made “after discovery has closed, after the deadline for dispositive motions has passed, and only a month before trial.” Notwithstanding the absence of pertinent docket entries, I do not view that comment as suggestive of an abuse of discretion. I do not know that the district court had not set informal deadlines for discovery and dispositive motions, and the gist of the court’s statement — that it was too late in the game to amend the complaint — was reasonable. V I would affirm the district court’s rulings across the board. My colleagues on the panel having seen the matter differently, I respectfully dissent. . In a lengthy follow-up article on the bus dispute, the newspaper quoted Mrs. Hamad as saying that the board’s action "is wrong, and it needs to be stopped. We've even called for a police escort for the bus if we need one." . Mr. Hamad testified that the baby was born in August of 1998. . The majority opinion states that Ms. Joyella was injured insofar as she was limited in her ability to sell her third-floor condominium. That might well be the case, but Ms. Joyella did not allege such an injury or offer facts to prove it. . It seems to me that the case of Gorski v. Troy, 929 F.2d 1183 (7th Cir.1991), is factually inapposite. Unlike the plaintiffs in Gorski , Ms. Joyella was not evicted because of her desire to have her nephew live with her. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9496028. Public record. Not legal advice.