Petition for Writ of Certiorari — Phyllis Davis, Petitioner v. Echo Valley Condominium Association, et al.

NO. 19-_____

In the

Supreme Court of the United States

PHYLLIS DAVIS,

Petitioner,

v.

ECHO VALLEY CONDOMINIUM ASSOCIATION AND

CASA BELLA PROPERTY MANAGEMENT, INC.,

Respondents.

__________________________

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Sixth Circuit

PETITION FOR A WRIT OF CERTIORARI

JUSTIN A. BARRY

BARRY LEGAL PLLC

P.O. BOX 700062

PLYMOUTH, MI 48170

ALAN J. GOCHA

COUNSEL OF RECORD

BROOKS KUSHMAN P.C.

1000 TOWN CENTER

TWENTY-SECOND FLOOR

SOUTHFIELD, MI 48075

(248) 358-4400

AGOCHA@BROOKSKUSHMAN.COM

COUNSEL FOR PETITIONER

APRIL 20, 2020

SUPREME COURT PRESS

♦

(888) 958-5705

♦

BOSTON, MASSACHUSETTS

i

QUESTIONS PRESENTED

The Sixth Circuit’s published opinion established

a new heighted pleading standard, intruded on the

sovereign rights of the State of Michigan, and uprooted

the carefully calibrated balance between the distinct

roles of judges and juries. The opinion dismissed half

of the issues on appeal because the complaint was not

amended to plead facts and theories with particularity

by the summary judgment stage. Fundamentally

altering the rights and obligations of the parties, the

opinion engaged in an unsolicited redrafting of the

contract and imposed a heightened burden for tobaccorelated nuisance claims under Michigan law. The opinion also placed a rigid ceiling on failure-to-accommodate

claims, which is so low that the disabled enjoy lesser

protections under the Fair Housing Act than guaranteed to prisoners under the Eighth Amendment.

THE QUESTIONS PRESENTED ARE:

1. Whether the liberal notice pleading standard

under Federal Rule of Civil Procedure 8(a) and Bell

Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) ceases

to apply at the summary judgment stage.

2. Whether federal courts of appeals have the

authority to adjudicate substantive matters not at

issue and to establish common law rules without

consideration of governing state law.

3. Whether the reasonableness inquiry for failureto-accommodate claims under the Fair Housing Act

is solely a question of law to be decided by courts

instead of juries.

ii

PARTIES TO THE PROCEEDINGS

Petitioner and Plaintiff-Appellant Below

●

Phyllis Davis

Respondent and Defendants-Appellees Below

●

Echo Valley Condominium Association

●

Casa Bella Property Management, Inc.

Defendants in Trial Court but Non-Parties to Petition

●

Moisey Lamnin

●

Ella Lamnin

●

Wanda Rule

iii

LIST OF PROCEEDINGS

United States Court of Appeals for the Sixth Circuit

Case No. 18-2405

Phyllis Davis, Plaintiff-Appellant, v.

Echo Valley Condominium Association; Casa Bella

Property Management, Inc., Defendants-Appellees.

Date of Final Opinion: December 19, 2019

Date of Rehearing Denial: January 22, 2020

_________________

United States District Court

Eastern District of Michigan Southern Division

Case No. 17-12475

Phyllis Davis, Plaintiff, v. Echo Valley Condominium

Association; Casa Bella Property Management, Inc.;

and Wanda Rule, Defendants.

Date of Final Opinion: November 7, 2018

iv

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ........................................ i

PARTIES TO THE PROCEEDINGS ......................... ii

LIST OF PROCEEDINGS ......................................... iii

TABLE OF AUTHORITIES .................................... viii

PETITION FOR A WRIT OF CERTIORARI ............. 1

OPINIONS BELOW ................................................... 1

JURISDICTION.......................................................... 1

STATUTORY PROVISIONS INVOLVED ................. 2

STATEMENT OF THE CASE .................................... 2

A. Background and Party Admissions ................. 2

B. Marijuana and the Sixth Circuit’s Summary

Judgment Pleading Standard .......................... 7

C. The Sixth Circuit’s Sua Sponte Construction of the Contract and “Default Rule” for

Tobacco-Related Nuisance Claims ................ 10

D. Davis’ Requested Accommodations and the

Sixth Circuit’s Reasonableness Ceiling ......... 14

v

TABLE OF CONTENTS—Continued

Page

REASONS FOR GRANTING THE PETITION ....... 16

I.

THE COURT SHOULD GRANT CERTIORARI TO

BRING THE SIXTH CIRCUIT IN LINE WITH

THIS COURT’S PROCEDURAL JURISPRUDENCE

AND TO MAINTAIN UNIFORMITY IN PLEADING

STANDARDS ...................................................... 18

II. THE COURT SHOULD GRANT CERTIORARI

TO PREVENT THE IMPROPER EXPANSION OF

APPELLATE AUTHORITY AND FEDERAL INTRUSION ON STATE SOVEREIGNTY ........................... 24

III. THE COURT SHOULD GRANT CERTIORARI TO

PROTECT THE BALANCE OF POWER BETWEEN

CONGRESS AND THE JUDICIARY AND THE

WELL-ESTABLISHED DIVISION BETWEEN THE

ROLE OF JUDGES AND JURIES .......................... 29

CONCLUSION.......................................................... 35

vi

TABLE OF CONTENTS—Continued

Page

APPENDIX TABLE OF CONTENTS

Opinion of the United States Court of Appeals for

the Sixth Circuit (December 19, 2019) .............. 1a

Opinion and Order of the United States District

Court, Eastern District of Michigan, Southern

Division Denying Plaintiff’s Motion to Exclude

Mark Clor’s Testimony, Denying Plaintiff’s

Motion for Summary Judgment, Granting

Defendants’ Motion for Summary Judgment,

Dismissing Certain Discovery Motions, and

Dismissing the Amended Com-plaint with

Prejudice (November 7, 2018) .......................... 26a

Order Denying Petition for Rehearing En Banc of

the United States Court of Appeals for the

Sixth Circuit (January 22, 2020) ..................... 62a

Relevant Constitutional Provisions, Statutory Provisions, and Federal Rules of Procedure .......... 64a

Plaintiff Phyllis Davis’ First Amended Complaint,

Relevant Excerpts

(November 14, 2017) ........................................ 72a

Condominium Bylaws, Echo Valley Condominium,

Exhibit A, Relevant Excerpts........................... 76a

Deposition of Louise Genovese, Relevant Excerpts

(April 30, 2018) ................................................. 78a

Deposition of Diana Williams, Relevant Excerpts

(April 30, 2018) ................................................. 82a

Minutes of the Echo Valley Condominium Association (EVCA) (November 2, 2015) ................... 86a

vii

TABLE OF CONTENTS—Continued

Page

Deposition of Colleen O’Rourke, Relevant Excerpts

(May 2, 2018) .................................................... 88a

Defendants’ Motion for Summary Judgment,

Relevant Excerpts (June 18, 2018) .................. 91a

viii

TABLE OF AUTHORITIES

TABLE OF AUTHORITIES

Page

CASES

Alexander v. Choate ,

469 U.S. 287 (1985) .......................................... 30

Anderson v. Liberty Lobby, Inc.,

477 U.S. 242 (1986) ........................................... 25

Ashcroft v. Iqbal,

556 U.S. 662 (2009) ...................................... 20, 23

Bell Atl. Corp. v. Twombly,

550 U.S. 544 (2007) ............................ i, 20, 21, 23

Cassady v. Donald,

447 Fed. Appx. 28 (11th Cir. 2011) ................... 34

Christian Legal Soc’y Chapter of the Univ. of Cal.

v. Martinez, 561 U.S. 661 (2010) ......................... 25

City of Edmonds v. Oxford House, Inc.,

514 U.S. 725 (1995) ...................................... 29, 33

Conley v. Gibson,

355 U.S. 41 (1957) ....................................... 18, 19

Erie R.R. v. Tompkins,

304 U.S. 64 (1938) ............................................. 25

Fid. & Deposit Co. v. United States,

187 U.S. 315 (1902) ..................................... 25, 26

Foman v. Davis,

371 U.S. 178 (1962) ..................................... 18, 21

Greenlaw v. United States,

554 U.S. 237 (2008) ........................................... 25

Groner v. Golden Gate Garden Apartments,

250 F.3d 1039 (6th Cir. 2001) ............................. 32

ix

TABLE OF AUTHORITIES—Continued

Page

Guar. Tr. Co. v. York,

326 U.S. 99 (1945) ............................................. 25

Helling v. McKinney,

509 U.S. 25 (1993) .............................................. 34

Hillsdale v. Hillsdale Iron & Metal Co.,

100 N.W.2d 467 (Mich. 1960) ............................. 27

Hishon v. King & Spalding,

467 U.S. 69 (1984) ............................................. 19

Hollis v. Chestnut Bend Homeowners Ass’n,

760 F.3d 531 (6th Cir. 2014) ......................... 32, 33

Hubbard v. Preston,

51 N.W. 209 (Mich. 1892) .................................. 33

Johnson v. City of Shelby,

574 U.S. 10 (2014) ................................. 20, 21, 23

Kendzierski v. Macomb Cty.,

931 N.W.2d 604 (Mich. 2019) ........................... 27

Kilts v. Bd. of Supervisors,

127 N.W. 821 (Mich. 1910) ................................ 27

Klapp v. United Ins. Grp. Agency, Inc.,

663 N.W.2d. 447 (Mich. 2003) ........................... 27

Kundinger v. Bagnasco,

298 N.W. 386 (Mich. 1941) ................................ 27

Leatherman v. Tarrant Cty. Narcotics

Intelligence & Coordination Unit,

507 U.S. 163 (1993) ........................................... 19

Marbury v. Madison,

5 U.S. 137 (1803) ................................................ 24

x

TABLE OF AUTHORITIES—Continued

Page

Nw. Home Owners Ass’n v. Detroit,

299 N.W. 740 (Mich. 1941) ................................. 27

Obrecht v. Nat’l Gypsum Co.,

105 N.W.2d 143 (Mich. 1960) ............................ 27

Olmstead v. L.C. by Zimring,

527 U.S. 581 (1999) ........................................... 31

PGA Tour, Inc. v. Martin,

532 U.S. 661 (2001) ........................................... 31

Rory v. Cont’l Ins. Co.,

703 N.W.2d 23 (Mich. 2005) ............................. 27

Roydson v. R.J. Reynolds Tobacco Co.,

849 F.2d 230 (6th Cir. 1988) ............................. 12

Schultz v. Pa. R. Co.,

350 U.S. 523 (1956) ........................................... 33

Se. Cty. Coll. v. Davis,

442 U.S. 397 (1979) ........................................... 30

Simler v. Conner,

372 U.S. 221 (1963) ............................................ 25

Smith & Lee Assocs. v. City of Taylor,

102 F.3d 781 (6th Cir. 1996) ................. 31, 32, 33

Struble v. Republic Motor Truck Co.,

185 N.W. 792 (Mich. 1921) ................................ 33

Swierkiewicz v. Sorema N.A.,

534 U.S. 506 (2002) ................................... passim

Tolan v. Cotton,

572 U.S. 650 (2014) ............................... 26, 28, 29

xi

TABLE OF AUTHORITIES—Continued

Page

Tucker v. Union Needletrades, Indus.,

& Textile Emps.,

407 F.3d 784 (6th Cir. 2005) ........................ 22, 23

Walker v. R.J. Reynolds Tobacco Co.,

734 F.3d 1278 (11th Cir. 2013) ......................... 28

Warren v. Keane,

196 F.3d 330 (2d Cir. 1999) ............................... 34

Warth v. Seldin,

422 U.S. 490 (1975) ........................................... 24

Whittemore v. Baxter Laundry Co.,

148 N.W. 437 (Mich. 1914) .................................. 27

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. VII ............................................. 17

U.S. Const. amend. VIII ............................ i, 16, 33, 34

FEDERAL STATUTES

28 U.S.C. § 1254(1) ..................................................... 1

29 U.S.C. § 701 et seq. .............................................. 29

29 U.S.C. § 794(a) ..................................................... 30

42 U.S.C. § 1983 .................................................. 19, 20

42 U.S.C. § 3601 .................................................. 14, 29

42 U.S.C. § 3604(f) .............................................. 14, 29

42 U.S.C. § 12101 et seq. ........................................... 29

42 U.S.C. § 12112(b)(5)(A) .......................................... 30

42 U.S.C. § 12182(b)(2)(A) ........................................ 31

xii

TABLE OF AUTHORITIES—Continued

Page

STATE STATUTES

Mich. Comp. Laws § 559.101 et seq. ....................... 2

Mich. Comp. Laws § 559.207 ............................ 2, 3, 26

Mich. Comp. Laws § 559.215 ............................ 2, 4, 26

JUDICIAL RULES

Fed. R. Civ. P. 1 ......................................................... 18

Fed. R. Civ. P. 8(a) ..................................... i, 18, 19, 21

Fed. R. Civ. P. 9(b)............................................... 18, 19

Fed. R. Civ. P. 10(c) ...................................... 18, 22, 23

Fed. R. Civ. P. 12(b)(6) .............................................. 20

Fed. R. Civ. P. 12(e) .................................................... 20

Fed. R. Civ. P. 15 advisory committee's note to

1963 amendment ............................................... 18

Fed. R. Civ. P. 15(a) ..................................................... 9

Fed. R. Civ. P. 56 ...................................................... 18

Fed. R. Evid. 801(d)(2) ............................................... 11

1

PETITION FOR A WRIT OF CERTIORARI

Petitioner Phyllis Davis respectfully petitions for

a writ of certiorari to review the judgment of the

United States Court of Appeals for the Sixth Circuit.

OPINIONS BELOW

The Sixth Circuit’s opinion is reported at 945 F.3d

483 and reproduced at App.1a-25a. The Sixth Circuit’s

order denying rehearing en banc is unreported and is

reproduced at App.62a-63a. The district court’s opinion and order is reported at 349 F. Supp. 3d 645 and

reproduced at App.26a-61a.

JURISDICTION

The Sixth Circuit issued its opinion on December

19, 2019. App.1a. Petitioner filed a timely petition for

rehearing en banc, which was denied on January 22,

2020. App.62a. This Court has jurisdiction under 28

U.S.C. § 1254(1).

2

STATUTORY PROVISIONS INVOLVED

The relevant statutory provisions are reproduced

at App.64a-70a: 42 U.S.C. §§ 3601, 3604; Mich. Comp.

Laws §§ 559.207, 559.215.

STATEMENT OF THE CASE

A.

Background and Party Admissions

1. Petitioner Phyllis Davis (“Davis”) is a breast

cancer survivor with asthma. App.27a. Davis’ condominium complex, Echo Valley, has an endemic problem

of cigarette and marijuana smoke polluting the common

elements and units of non-smokers. Davis seeks to

enforce her right to breathe in her own home and to

live free of intrusions that Respondents admit are

“extreme” and “intolerable” “health hazard[s].” See

Genovese Dep. Tr., App.78a-79a; Williams Dep. Tr.,

App.83a-84a.

2. Echo Valley is a multi-building condominium

complex in Michigan that is subject to a master

deed, bylaws package, and the Michigan Condominium

Act, Mich. Comp. Laws § 559.101 et seq. App.2a.

Respondent Echo Valley Condominium Association

(“Association”) is organized to manage the affairs of the

community and to enforce the bylaws. App.16a, 28a.

Respondent Casa Bella Property Management, Inc.

(“Management Company”) (Association and Management Company collectively, “Respondents”) assumed

the Association’s enforcement obligations. Cf. App.28a.

3

The bylaws grant the Association and its agents the

authority “to enter upon the common elements” or

“into any apartment” to “summarily remove and

abate . . . any structure, thing[,] or condition existing

or maintained contrary to the provisions of the Condominium Documents.” Bylaws, App.76a-77a.

The governing bylaws are highly restrictive.

Article VI, Section 15 (“Section 15”) affirmatively

requires co-owners to maintain their units and appurtenant spaces thereto “in a safe, clean and sanitary

condition.” App.53a. Article VI, Section 4 (“Section

4”) prohibits all co-owners and invitees from doing

anything that “may be or become an annoyance or a

nuisance,” is “unlawful” or “offensive”, or “will increase

the rate of insurance.” App.52a-53a. In 2015, the bylaws

committee—a subcommittee established by the board—

recommended that smoking of any “plant material,”

including “tobacco” and “marijuana,” be restricted to

outdoor porches and patios “so as to be free of nuisance,

offensive, dangerous health and safety activity. . . . ”

Nov. 2015 Minutes, App.86a-87a. Davis contends cigarette and marijuana pollution is unsafe, unclean, an

annoyance, a nuisance, and offensive. Davis also contends indoor smoking increases the rate of insurance.

Possession and consumption of marijuana is unlawful. App.22a.

The bylaws contain an anti-waiver provision,

which provides that the failure of the Association or

any co-owner to enforce any right, provision, covenant,

or condition shall not constitute a waiver. App.77a.

The Michigan Condominium Act preserves the right

of co-owners to compel the Association to enforce the

terms and provisions of the condominium documents.

Mich. Comp. Laws § 559.207; see also Mich. Comp.

4

Laws § 559.215(1) (providing that a “person . . . adversely affected by a violation of or failure to comply with . . .

any provision of an agreement or a master deed may

bring an action for relief in a court of competent

jurisdiction”).

3. Davis purchased her condominium (Unit 214)

in 2004, which is one of four in her building (Unit 114,

Unit 115, and Unit 215). Cf. App.28a. Nearly a decade

later, Moisey and Ella Lamnin (“Landlords”) leased

Unit 115 to Wanda Rule (“Tenant”). Id. The Tenant

smoked copious amounts of tobacco and marijuana,

which caused smoke to regularly invade Davis’ unit

and the common elements of the building. The smoke

intrusion was significant enough to make Davis’ clothes

and towels smell of smoke. App.21a.

Davis went to “every meeting” to seek relief. See

O’Rourke Dep. Tr., App.89a. Davis also sent several

emails and letters to Respondents. In March 2016,

for example, Davis sent an email indicating that the

Tenant was smoking all day and night and the smoke

was interfering with Davis’ breathing and causing

constant coughing. App.4a. In a subsequent email,

Davis wrote that, “because of the heavy smoke, she

[had to] turn the heat up and open the windows in

her condo so that she [could] breathe.” App.30a. Respondents sent a letter to the Landlords acknowledging

complaints about the heavy smoke and asking the

Landlords to assist in keeping the smell contained to

their unit. App.5a. Davis later urged the board to send

a second letter to the Landlords about “heavy smoking

of cigarettes, weed[,] and etc., infiltrating common areas

and other units.” Id. A second letter was never sent.

In April 2017, Davis’ counsel sent a letter to the

Landlords and Respondents that outlined Davis’ health

5

issues and explained that the Tenant’s excessive

smoking was a nuisance and a violation of the bylaws.

App.32a. The letter demanded appropriate action be

taken. Id. Nevertheless, the smoke problem continued.

In July 2017, Davis filed suit against Respondents

and the Landlords, asserting claims for violation of

the Fair Housing Act, violation of the Michigan Persons

with Disabilities Civil Rights Act, tortious nuisance,

and breach of covenant. App.33a. Davis subsequently

amended the complaint to add the Tenant. App.33a34a. By early 2018, the Tenant moved out of Echo

Valley and the Landlords settled. Id. Seeking a permanent solution, Davis continued the suit against Respondents.

On April 3, 2018, Davis’ counsel notified Respondents that a new tenant in Davis’ building was

“smoking cigarettes and marijuana,” which was

“making it very difficult for her to breathe.” App.7a,

29a. Davis requested that the Association provide “a

reasonable accommodation and prohibit smoking within

her building.” Id. The following day, Davis’ counsel

indicated that a new tenant in Unit 114 was likely the

source of the smoke. See App.29a, 54a.

4. In April 2018, Davis deposed all six board members. Board members admitted that smoke pollution

violates Section 15’s safe and clean requirements.

Board members also admitted that indoor smoking

violates Section 4’s prohibition on activities that may be

or become an annoyance or a nuisance, are offensive,

or will raise the rate of insurance. For example, Board

member Louise Genovese (“Genovese”) testified to the

following:

6

Q

Do you consider marijuana smoke to be safe?

A

I would say no.

Q

Do you consider cigarette smoke to be safe?

A

No.

Q

Do you consider marijuana smoke to be clean?

A

No.

Q

Do you consider cigarette smoke to be clean?

A

No.

***

Q

You consider marijuana smoke and cigarette

smoke to both be unsafe and unclean; is that

correct?

A

Yes.

Q

In your opinion, is marijuana smoke or cigarette

smoke pumping through the vents from another

person’s unit a violation of Section 15 on the page

that has the Bates Number PD 020?

A

Well, on those two, evidence – I’d say for those two,

yes.

Genovese Dep. Tr., App.81a (objections omitted).

Genovese admitted that smoking raises the rate of

insurance. See App.21a. Board member Diana Williams

(“Williams”) testified that indoor smoking was a

“violation” of Section 4’s prohibition on activities that

may be or become an annoyance or nuisance. App.85a;

see also Genovese Dep. Tr., App.81a. Describing the

problem as “intolerable,” Williams admitted that the

smoke makes her uncomfortable and interferes with the

enjoyment of her unit. App.83a-85a. Williams explained

7

that smoke entered her unit through air vents almost

every day, making it hard to breathe and inducing

coughing. App.83a-84a. When asked to give an example of how the smoke reduced the enjoyment of

her unit, Williams stated that she “couldn’t sit still

and watch a program” and “had to get up and move

around.” App.84a-85a. While Genovese and Williams

live in a different building than Davis, the Association’s

former president testified that there was a “pretty

significant amount of smoke” in Davis’ building—

worse than other buildings. See App.33a. Multiple

residents have left Echo Valley because of the smoke

problem. App.82a-83a.

5. On May 18, 2018, Davis filed for summary judgment on liability as to all claims. See App.40a. On June

18, 2018, Respondents filed a cross-motion for summary judgment. App.91a. The trial court denied Davis’

motion and granted Respondents’ motion on all counts.

The Sixth Circuit affirmed, primarily on alternative

grounds. Finding Davis’ pleading deficient, the Sixth

Circuit declined to consider the unlawful and offensive

restrictions, the facts related to marijuana, and the

evidence concerning Unit 114. As to the remaining

issues, the court held that Davis’ breach of covenant

and tortious nuisance claims failed under a sua sponte

contract construction and a “default rule” derived from

non-Michigan case law. The Sixth Circuit also found

that the requested accommodation was unreasonable

as a matter of law.

B.

Marijuana and the Sixth Circuit’s Summary

Judgment Pleading Standard

1. The amended complaint contained two sets of

allegations central to the procedural rulings below.

8

First, the amended complaint contained several allegations about “Smoking,” which was broadly defined as

consumption of “tobacco and/or other substances by

way of combustion . . . .” Am. Compl., App.73a-74a

(emphasis added) (quote from paragraph 29). Second,

it broadly alleged that Respondents “breached [their]

duties under the Condominium Documents[] by, among

other things, failing to enforce provisions contained

in the Condominium Documents, including the Annoyance and Nuisance Provision, the Insurance Rate Provision, and the SCS Provision.” App.74a ¶¶ 102-103

(emphasis added). A complete set of the bylaws was

attached as Exhibit 1 to the amended complaint. App.

72a.

In her motion for summary judgment, Davis

argued that Respondents breached their covenant to

enforce the bylaws against marijuana and cigarette

pollution, more specifically: (a) Section 15’s requirement that units and appurtenant spaces thereto be

maintained in a safe and clean condition; and (b)

Section 4’s prohibition on activities that may be or

become an annoyance or a nuisance, are unlawful or

offensive, or will raise the rate of insurance. See App.

17a-22a, 51a-54a. Respondent subsequently filed a

cross-motion for summary judgment that asserted:

[T]he Complaint is devoid of any claim of

breach of covenant as to a Bylaw provision

on “Unlawful and Offensive” conduct. Since

Plaintiff has not plead [sic ] that claim, it is

not part of her lawsuit and she cannot now

attempt to base any claim upon an alleged

breach of any Bylaw provision for “Unlawful

and Offensive” conduct.

App.92a-93a.

9

2. The trial court declined to consider the unlawful and offensive restrictions, stating: “Davis [] seeks to

allege a failure to enforce the ‘unlawful and offensive

activity’ provision. That latter claim was not pleaded

in the amended complaint, Davis has not sought

another amendment, and therefore that claim is not

properly before the Court.” App.51a.

3. On appeal, the Sixth Circuit established a rigid

and inflexible rule, which requires that facts, theories,

and claims be pled with particularity to be considered

on summary judgment. See App.22a-23a. The Sixth

Circuit held that “[p]arties who seek to raise new claims

must first move to amend their pleadings under

Federal Rule of Civil Procedure 15(a) before asserting

[them] in summary judgment briefing.” App.22a

(emphasis added). The court stated that, by the summary judgment stage, “a plaintiff has conducted discovery and has had the opportunity to amend the

complaint [to] raise additional theories.” Id. (emphasis

added). Applying this rule, the Sixth Circuit not only

affirmed the trial court’s exclusion of the unlawful and

offensive theories but also broadly refused to consider facts concerning complex-wide marijuana consumption, marijuana use in Unit 115, and marijuana

and tobacco smoking in Unit 114.1 See App.22a-23a.

These issues fall within the scope of Davis’

allegations. First, the amended complaint alleged that

the tenants in Unit 115 were smoking “tobacco and/or

other substances.” App.73a (emphasis added). Second,

1 The opinion asserts that the issue of marijuana was limited to

the tenant in Unit 114. Both the Sixth Circuit and trial court

opinions, however, acknowledged evidence of marijuana smoke

coming from Unit 115. App.5a, 28a-29a.

10

it broadly alleged that Respondents “breached [their]

duties under the Condominium Documents, by, among

other things, failing to enforce provisions contained in

the Condominium Documents, including the Annoyance and Nuisance Provision, the Insurance Rate

Provision, and the SCS Provision.” App.74a. Davis

also affirmatively notified Respondents of these issues

prior to June 18, 2018, the date Respondents moved

for summary judgment. On April 3, 2018, Davis put

Respondents on notice that another person was

smoking cigarettes and marijuana in her building.

App.29a. On April 4, 2018, Davis informed Respondents

that the new smoker was likely the tenant in Unit 114.

App.29a, 54a. Throughout April 2018, Davis deposed

Respondents’ agents and asked them extensive questions regarding whether residents were smoking

marijuana and whether that violated the asserted

bylaws. See App.53a-54a (discussing deposition testimony about marijuana); Genovese Dep. Tr., App.78a79a (deposition taken on April 30, 2018). While the

Sixth Circuit implicitly acknowledged that Respondents received adequate notice, the court nevertheless

held that Davis did not notify Respondents in the

“correct way” and that her “failure to follow this rule

dooms her claim.” App.22a-23a.

C.

The Sixth Circuit’s Sua Sponte Construction of

the Contract and “Default Rule” for TobaccoRelated Nuisance Claims

1. Respondents never challenged the validity or

enforceability of any contractual term other than the

“annoyance” restriction. See Defs.’ Mot. for Summ. J.,

App.91a-96a (complaining that Davis failed to present

“any controlling authority holding that an annoyance

is legally actionable”). Respondents also never contested

11

Davis’ interpretation of the bylaws, which aligned with

Respondents’ unrebutted admissions. See id. Rather,

Respondents argued that the business judgment

rule foreclosed liability and that Davis’ evidentiary

showing was insufficient. App.91a-96a (citing no affirmative evidence). These concessions and Respondents’

defensive posture significantly influenced Davis’ presentation of her case. Compare. App.17a (acknowledging

Davis relied “on a combination of common knowledge

and board-member admissions”) with Fed. R. Evid. 801

(d)(2) (providing for the admissibility of party admissions).

2. Without addressing the business judgment rule,

the trial court held that Davis failed to prove “any

of the units have not been maintained in a safe,

clean, or sanitary condition,” the circumstances were

sufficiently “extreme” to constitute a nuisance, or

that smoking increases insurance rates. App.53a-56a.

Regarding the safe and clean restrictions, for example,

the court concluded that Davis failed to submit evidence

proving that smoke infiltrated “the ventilation system

of her unit” and failed to definitively identify a source

of the smoke. App.54a. As for the nuisance restriction,

the court remarked that the parties “agree that tort

principles supply the appropriate meaning” of nuisance.

Id. Distinguishing cases cited by Davis, the court

held that Davis failed to show the extent or amount

of smoke, the extent of harm to her body, or the

uniqueness of the smokers’ habits. App.59a.

3. The Sixth Circuit did not address the business

judgment rule and implicitly rejected two of the trial

court’s factual findings. First, the Sixth Circuit acknowledged that Davis “point[ed] to evidence suggesting

that the amount of smoke infiltrating her condo and

12

her hallways [was] ‘strong,’ at times even leaving the

smell of smoke on clothes and towels.” App.21a. Second,

the court quoted Davis’ declaration, which explained

that the smoke had “significant adverse effects on

[her] ability to breathe comfortably.” See App.4a.

Nevertheless, the Sixth Circuit concluded that

“context” required reading a right to smoke into the

bylaws. App.17a-21a. First, pointing to the “record”

generally, the court asserted that the Association has

“long read” the bylaws to permit smoking. App.16a.

The court neither explained how it reached this conclusion nor attempted to reconcile its finding with the

contrary testimony of board members and the committee recommendation. Second, the court asserted that

the bylaws can only prohibit activities “most residents

would reasonably find significantly bothersome—in

contrast to [] activities that can be ‘generally expected’

in a condo complex.” App.18a-19a (original emphasis

in italics). The court did not explain its justification

for assuming that smoking is generally expected or

that most residents do not find smoking significantly

bothersome. Third, the court concluded that broad

restrictions must be construed to permit all activities

not otherwise prohibited by a more specific bylaw

provision. See App.16a. In other words, the court

rendered all broad restrictions unenforceable—without

input from the parties.

As an example, the court acknowledged that Davis’

safe and clean theories were supported by “a combination of common knowledge and board-member admissions” and that the “generally understood” meaning

of “safe” means “free from danger” and “clean” means

“free from pollution.” App.17a; see also Roydson v.

R.J. Reynolds Tobacco Co., 849 F.2d 230, 236 (6th Cir.

13

1988) (“Knowledge that cigarette smoking is harmful

to health is widespread and can be considered part of

the common knowledge of the community.”). The Sixth

Circuit opined, however, that “ordinary levels of ‘smoke’

cannot be considered a ‘danger’ or ‘pollution’; otherwise,

this provision would ban a practice that the bylaws

permit.” App.17a. After concluding ordinary levels of

smoke cannot trigger liability, the Sixth Circuit declined

to consider whether Davis established, or could establish, the existence of an unordinary amount of smoke:

“We need not decide whether unusual amounts or

types of smoking might violate this provision, because

[Davis’] theory of ‘breach’ is far more expansive.” Id.

Without citation to Michigan precedent or consideration of the contrary cases cited in the trial court’s

opinion, the Sixth Circuit asserted that there is a

“default rule that smoking cannot be considered a

nuisance in a condo complex that allows it.” App.21a.

Applying this heightened threshold, the court stated:

“we do not think th[e] evidence suffices to take this

case outside the default rule” as “Davis presented no

evidence that her neighbors had ‘unique’ ‘smoking

habits.’” Id. Notably, the Management Company’s agent

testified that Echo Valley is the only place that she has

received smoking complaints, App.90a, and Williams

testified that Echo Valley is the only place she has ever

experienced smoke traveling through air vents, App.

85a. Additionally, the Association’s previous president

testified that the smoke problem in Davis’ building

was worse than others in Echo Valley. App.33a. The

Sixth Circuit did not explain why these facts were

insufficient to overcome its default rule.

14

D.

Davis’ Requested Accommodations and the Sixth

Circuit’s Reasonableness Ceiling

1. The Fair Housing Act (“FHA”), as amended,

42 U.S.C. § 3601 et seq. makes it unlawful to discriminate on the basis of a person’s handicap (hereinafter

“disability”) in certain housing practices. § 3604(f)(2)(A).

The FHA defines discrimination to include “a refusal

to make reasonable accommodations in rules, policies,

practices, or services, when such accommodations

may be necessary to afford such person equal opportunity to use and enjoy a dwelling[.]” § 3604(f)(3)(B).

The Michigan Persons with Disabilities Civil Rights

Act, Mich. Comp. Laws § 37.1101 et seq. contains a

parallel prohibition. § 37.1506a(1)(b). Davis requested

two accommodations. First, Davis asked Respondents

to take further action to provide her relief. App.32a.

After no adequate relief was provided, Davis requested

that Respondents prohibit indoor smoking in her

building. See App.7a.

2. The trial court rejected Davis’ failure-toaccommodate claims for two reasons. First, the court

concluded that Davis could not show that the “proposed

accommodation ameliorated [Davis’] handicap specifically, and not just the burden shared by all individuals

exposed to smoke.” App.47a. Second, the court held that

it would be illegal for Respondents to restrict tobacco

smoking to outside. See App.48a-49a. The court did not

address whether the Association could legally regulate

the location of marijuana smoking.

3. The Sixth Circuit did not reach the same conclusions. First, while it did not address whether the

requested accommodations would confer Davis benefits beyond those of other residents, the Sixth Circuit

contrarily concluded that Davis’ breach-of-covenant

15

claim was undercut by the fact that “smoking affects

Davis more than other residents. . . . ” See App.19a.

Second, the Sixth Circuit did not determine that it

would be illegal for Respondents to regulate smoking.

Instead, the Sixth Circuit concluded that Davis’

requested accommodation was unreasonable on two

alternative grounds. The Sixth Circuit held that an

accommodation is an unreasonable fundamental alteration if it “turns [a] challenged policy into something

else entirely.” App.13a. The Sixth Circuit concluded

that Davis’ request was unreasonable as a matter of law

because it was incompatible with an implicit smokingfriendly policy. See App.14a. Additionally, the Sixth

Circuit held that an accommodation is unreasonable

as a matter of law if it might “intrude on the rights of

third parties.” App.14a. Applying this rule, the Sixth

Circuit concluded Davis’ accommodation was unreasonable because “[n]eighbors who smoke may well have

bought their condos because of the Association’s policy

permitting smoking.” Id. (emphasis added). Notably,

these rules do not leave room for consideration of the

totality of circumstances or the performance of a costbenefit analysis in deciding the question of reasonableness.

16

REASONS FOR GRANTING THE PETITION

The Sixth Circuit has decided important questions

of federal law in a way that conflicts with decisions of

this Court. The Sixth Circuit’s opinion imposed a

heightened pleading standard that is incompatible

with this Court’s precedent concerning the Federal

Rules of Civil Procedure’s liberal system of notice

pleading. Against well-established jurisprudence outlining the limited role of appellate courts, the Sixth

Circuit’s opinion circumvented the party presentation

principle, intruded upon Michigan’s sovereign right to

establish its own common law, and improperly engaged

in the weighing of evidence. The Sixth Circuit also

decided an important question of federal law that

has not been, but should be, settled by this Court.

The Sixth Circuit created bright-line rules that release

defendants from liability merely when the accommodation causes any burden or when defendants adopt

a policy—whether explicit or implicit—that is incompatible with the requested accommodation. These rules

set the ceiling for what constitutes a “reasonable”

accommodation so low that the disabled receive lesser

protection under the FHA than guaranteed to prisoners

under the Eighth Amendment.

Courts are without authority to impose unsanctioned pleading standards in civil rights cases, a result

which can only be obtained by amending the Federal

Rules and not through judicial interpretation. Federal

courts are not courts of general jurisdiction and are

subject to constitutional and prudential limitations in

all dimensions. Federal courts are only permitted to

rule on the case and controversy before them. Federal

17

courts are required to adhere to state law on substantive state law issues. Unless the right to a jury is

waived by the parties, federal courts are not permitted

to weigh the evidence. The question of reasonableness

has long been held to be a fact-intensive question to

be decided by juries—not judges. A federal court does

not have the authority to interfere with constitutional

acts of Congress or infringe upon rights guaranteed

under the Seventh Amendment.

The undisputed testimony of Respondents’ agents

established that the smoke problem is intolerable and

dangerous. Respondents’ agents also admitted that

smoking is a nuisance and a violation of seven different bylaw provisions. The Sixth Circuit’s opinion makes

unsolicited rulings that ignores the parties’ mutual

interpretation of the contract and understanding of

the severity of the situation. Like all other Echo Valley

residents, Davis chose to live in a community that is

subject to substantial restrictions. She chose to permanently reside in a state that has guarded residents

against unreasonable smoke intrusions for over a

century. Under the FHA, Davis is a protected person

with broad statutory rights and is lawfully entitled

to reasonable accommodations necessary to afford

her with an equal opportunity to use and enjoy her

home. While this case concerns the subject of tobacco

and marijuana consumption, it is more fundamentally

about equal access to the procedural and substantive

protections provided by law. The notion that, as a

matter of law, an abstract interest in unregulated

smoking takes precedence over the disabled’s right to

live free of dangerous and illegal intrusions cannot be

ratified, whether through explicit adoption or passive

acquiescence.

18

I.

THE COURT SHOULD GRANT CERTIORARI TO BRING

THE SIXTH CIRCUIT IN LINE WITH THIS COURT’S

PROCEDURAL JURISPRUDENCE AND TO MAINTAIN

UNIFORMITY IN PLEADING STANDARDS.

1. Federal Rule of Civil Procedure 8(a)(2) requires

a complaint to include “a short and plain statement

of the claim showing that the pleader is entitled to

relief.” Swierkiewicz v. Sorema N.A., 534 U.S. 506,

512 (2002) (unanimous). This simplified notice pleading

standard applies to all civil actions, subject to limited

exceptions. Id. at 513 (citing Fed. R. Civ. P. 9(b)). Rule

10(c) provides that “[a] copy of a written instrument

that is an exhibit to a pleading is part of the pleading

for all purposes.” (emphasis added). Rule 56 governs

the standard for granting or denying summary judgment. Answers to interrogatories were included among

the materials to be considered on summary judgment

in recognition that the “very mission of the summary

judgment procedure is to pierce the pleadings and to

assess the proof in order to see whether there is a

genuine need for trial.” Fed. R. Civ. P. 56 advisory

committee’s note to 1963 amendment.

In 1957, the Court in Conley v. Gibson held that

the “Federal Rules of Civil Procedure do not require

a claimant to set out in detail the facts upon which

he bases his claim.” 355 U.S. 41, 47 (1957). The Court

explained that “[t]he Federal Rules reject the approach

that pleading is a game of skill in which one misstep

by counsel may be decisive to the outcome and accept

the principle that the purpose of pleading is to

facilitate a proper decision on the merits.” Id. at 48;

accord Foman v. Davis, 371 U.S. 178, 181-82 (1962)

(citing Fed. R. Civ. P. 1). Further, Conley set forth the

“rule that a complaint should not be dismissed for

19

failure to state a claim unless it appears beyond doubt

that the plaintiff can prove no set of facts in support

of his claim which would entitle him to relief.” 355

U.S. at 45-46 (emphasis added). Citing Conley, the

Court in Hishon v. King & Spalding alternatively

stated a “court may dismiss a complaint only if it is

clear that no relief could be granted under any set of

facts that could be proved consistent with the allegations.” 467 U.S. 69, 73 (1984) (emphasis added).

In 1993, the Court in Leatherman v. Tarrant

Cty. Narcotics Intelligence & Coordination Unit

unanimously held that it was improper to impose a

pleading standard for claims arising under 42 U.S.C.

§ 1983 that is higher than prescribed by Rule 8(a)(2).

507 U.S. 163, 168 (1993). The Court stated that “[p]erhaps if Rules 8 and 9 were rewritten today, claims

against municipalities under § 1983 might be subject

to the added specificity requirement of Rule 9(b). But

that is a result which must be obtained by the process

of amending the Federal Rules, and not by judicial

interpretation.” Id.

In 2002, the Court in Swierkiewicz v. Sorema N.A.

unanimously held that it was improper to convert an

evidentiary requirement for employment discrimination claims under Title VII into a heighted pleading

requirement. 534 U.S. at 510-11. The Court cautioned

against construing the Federal Rules in a manner that

would undermine Rule 8(a)’s liberal system of notice

pleading. Id. at 512-13. “The liberal notice pleading of

Rule 8(a) is the starting point of a simplified pleading system, which was adopted to focus litigation on

the merits of a claim.” Id. at 514. The Court stated

that “the precise requirements of a prima facie case

can vary depending on the context and were never

20

intended to be rigid, mechanized, or ritualistic.” Id. at

512 (internal quotation marks omitted). “If a pleading

fails to specify the allegations in a manner that provides

sufficient notice, a defendant can move for a more

definite statement under Rule 12(e) before responding.”

Id. at 514. “Accordingly, all pleadings must be construed

“as to do substantial justice” and a “court may dismiss

a complaint only if it is clear that no relief could be

granted under any set of facts that could be proved

consistent with the allegations.” Id. (emphasis added).

In 2007, the Court in Bell Atlantic Corp. v. Twombly retired Conley’s “no set of facts” language. 550 U.S.

544, 562-63 (2007). The Court stated that “[t]he phrase

is best forgotten as an incomplete, negative gloss on

an accepted pleading standard: once a claim has been

stated adequately, it may be supported by showing

any set of facts consistent with the allegations in the

complaint.” Id. (emphasis added). Rejecting the notion

that Twombly ran counter to Swierkiewicz, the Court

stated that it still does “not require heightened fact

pleading or specifics, but only enough facts to state a

claim to relief that is plausible on its face.” Id. at 56970; accord Ashcroft v. Iqbal, 556 U.S. 662, 670 (2009).

In 2014, the Court’s per curiam decision in Johnson v. City of Shelby addressed yet another attempt

to impose a heighted pleading standard in a civil

rights case. 574 U.S. 10 (2014) (citing Leatherman,

Swierkiewicz, and Twombly). The Court held that a

lower court improperly granted summary judgment

on a § 1983 claim merely because the plaintiffs failed

to cite the statute in their complaint. Id. at 10-12.

The Court explained that Twombly and Iqbal were

not in point, because they concerned the threshold

for dismissal under Rule 12(b)(6). Id. at 12. Neverthe-

21

less, the Court instructed that Rule 8(a) only requires

a plaintiff to “plead facts sufficient to show that her

claim has substantive plausibility” and is “required

to do no more to stave off threshold dismissal for

want of an adequate statement of their claim.” Id.

(emphasis added). The Court went on to unequivocally

reject a “punctiliously stated ‘theory of the pleadings,’”

explaining that the Federal Rules “effectively abolish

the restrictive theory of the pleading doctrine, making

it clear that it is unnecessary to set out a legal theory

for the plaintiff’s claim for relief[.]” Id. Taken together,

a plaintiff need only “plead facts sufficient to show

that her claim has substantive plausibility” and may

rely upon “any set of facts [or theories] consistent with

the allegations in the complaint”—even on summary

judgment. See Twombly, 550 U.S. at 562-63; Johnson,

574 U.S. at 12.

2. The Sixth Circuit’s holding conflicts with Johnson and its predecessors. The Sixth Circuit held that

it could not consider two contractual provisions, the

issue of marijuana, and evidence related to Unit 114

because those facts and theories were not explicitly

pled. App.21a-23a. By designating the complaint as

the exclusive ledger of issues that can be considered

on summary judgment, the Sixth Circuit improperly

makes pleading “a game of skill in which one misstep

by counsel may be decisive to the outcome” and

frustrates the notion that the purpose of the Federal

Rules is to “facilitate a proper decision on the merits.”

Foman, 371 U.S. at 181-82. Contrary to the Court’s

precedent, the Sixth Circuit’s approach requires courts

to dispose of meritorious claims solely on the basis that

a plaintiff failed to plead facts, theories, and claims

with particularity by the summary judgment stage.

22

3. The Sixth Circuit’s opinion cannot be reconciled

with Rule 10(c), which provides “[a] copy of a written

instrument that is an exhibit to a pleading is part of

the pleading for all purposes.” (emphasis added). The

unlawful and offensive provisions were contained in

the bylaws, which were attached as Exhibit 1 to the

amended complaint. By holding that these provisions

were not in the case, the Sixth Circuit improperly

concluded that the written instrument attached to the

amended complaint was not part of the pleading for

all purposes.

4. The Sixth Circuit’s holding is incompatible

with Swierkiewicz. In establishing a heighted pleading standard, the Sixth Circuit relied on Tucker v.

Union Needletrades, Indus. & Textile Emps., 407 F.3d

784 (6th Cir. 2005). App.22a-23a. In Tucker, the Sixth

Circuit held that “[o]nce a case has progressed to the

summary judgment stage . . . the liberal pleading

standards under Swierkiewicz and the Federal Rules

are inapplicable.” 407 F.3d at 788. Like in this case,

the court in Tucker concluded a heightened pleading

standard was necessary to prevent “unfair surprise.”

See id. Tucker quotes the following passage from

Swierkiewicz :

This simplified notice pleading standard

relies on liberal discovery rules and summary

judgment motions to define disputed facts

and issues and to dispose of unmeritorious

claims. The provisions for discovery are so

flexible and the provisions for pretrial procedure and summary judgment so effective,

that attempted surprise in federal practice is

aborted very easily, synthetic issues detected,

and the gravamen of the dispute brought

23

frankly into the open for the inspection of

the court.

534 U.S. 512-13 (internal citations omitted). Importantly, however, Tucker omitted the following portion

of the quote from Swierkiewicz : “attempted surprise

in federal practice is aborted very easily, synthetic

issues detected . . . .” Compare Swierkiewicz, 534 U.S.

at 514 with Tucker, 407 F.3d at 788. In other words,

Tucker quotes Swierkiewicz out of context to justify

the establishment of a contrary principle. Indeed, the

Court in Swierkiewicz ultimately held that it was

improper for a lower court to impose a heighted pleading standard not contained in the Federal Rules. 534

U.S. at 514.

5. The Sixth Circuit’s heightened pleading standard also conflicts with Johnson, which unequivocally

held that theories do not need to be pled to avoid

summary judgment. 574 U.S. at 12. While the Sixth

Circuit asserts that the unlawful and offensive restrictions are “claims,” the opinion uses the terms “claims”

and “theories” interchangeably. See App.21a-23a (“like

her first theory, this claim”). The Sixth Circuit’s heightened pleading standard cannot be reconciled with

Johnson as there is no principled reason to impose a

punctiliously stated theory of the pleadings for contract

terms when there is not one for statutes—particularly

in light of Rule 10(c).

6. The Sixth Circuit’s opinion raises the exceptional question of whether there is a heightened pleading standard hidden between Johnson and Twombly /

Iqbal. This uncertainty leaves litigants without critical

guidance as to the dispositive role of the complaint and

the level of particularity necessary to satisfy pleading

requirements at the summary judgment stage. With

24

this ambiguity, plaintiffs have no choice but to excessively amend their complaints or risk the possibility

that their meritorious cases will fall to latent procedural technicalities. In instances where a plaintiff’s

case is exceedingly strong, defendants are encouraged

to deploy feigned ignorance as a mechanism for

avoiding dispositive issues. Indeed, the Sixth Circuit’s

rule, as was the case here, rewards defendants for

failing to utilize traditional discovery tools—such as

motions for a more definite statement, depositions,

and interrogatories—and creates an unnecessary procedural trap. At a minimum, if courts have the discretion

to impose heightened pleading standards, the Court

should make the existence and confines of that discretion known.

II. THE COURT SHOULD GRANT CERTIORARI TO

PREVENT THE IMPROPER EXPANSION OF APPELLATE

AUTHORITY AND FEDERAL INTRUSION ON STATE

SOVEREIGNTY.

1. Federal courts are subject to constitutional

limitations, statutes enacted by Congress pursuant

thereto, and prudential constraints. See Warth v.

Seldin, 422 U.S. 490, 498-501 (1975). This is both

appropriate and necessary in a democratic society.

See id. There are three well-established constraints

pertinent to this case.

First, it has long been held that “the essential

criterion of appellate jurisdiction” is “that it revises and

corrects the proceedings in a cause already instituted,

and does not create that cause.” Marbury v. Madison, 5

U.S. 137, 175 (1803). Embodied in the party presentation principle, this Court has stated that “our

adversary system is designed around the premise

25

that the parties know what is best for them, and are

responsible for advancing the facts and arguments

entitling them to relief.” Greenlaw v. United States,

554 U.S. 237, 243-44 (2008). Courts “should not, sally

forth each day looking for wrongs to right[.]” Id.

“Courts wait for cases to come to [them], and when

they do, [courts] normally decide only questions presented by the parties.” Id. (acknowledging that

counsel almost always knows “a great deal more”

about their cases than courts); see also Christian

Legal Soc’y Chapter of the Univ. of Cal. v. Martinez,

561 U.S. 661, 676-77 (2010) (stating that litigants are

entitled to have their case tried upon the assumption

that stipulated facts are established).

Second, federal courts do not have the authority

to disregard state precedent on substantive state law

issues. See Erie R.R. v. Tompkins, 304 U.S. 64, 71,

79-80 (1938). The result of a case should not change

because a litigant brought their action in federal court

instead of a state court “a block away.” Guar. Tr. Co.

v. York, 326 U.S. 99, 109 (1945).

Third, “[t]he federal policy favoring jury trials is

of historic and continuing strength.” Simler v. Conner,

372 U.S. 221, 222 (1963). The purpose of summary

judgment is “to preserve the court from frivolous”

cases and defenses “and to defeat attempts to use

formal pleading as means to delay the recovery of just

demands.” Fid. & Deposit Co. v. United States, 187

U.S. 315, 319-20 (1902). In Anderson v. Liberty Lobby,

Inc., the Court held that credibility determinations,

the weighing of evidence, and the drawing of legitimate inferences from the facts remain jury functions,

not those of judges. 477 U.S. 242, 255 (1986). On

summary judgment, the evidence of the nonmovant

26

must be believed, and all justifiable inferences drawn

therefrom. Id. When deciding whether or not to grant

summary judgment, a court is without the authority

to surreptitiously refuse to acknowledge material

evidence in favor of a non-moving party. See Tolan v.

Cotton, 572 U.S. 650, 659 (2014). The Sixth Circuit’s

opinion violates these well-established doctrines.

2. The Sixth Circuit acted in conflict with the party

presentation principle by rendering an unsolicited

contract construction. The opinion construed all broad

restrictions out of existence and stripped the Association of the power to regulate threats to community

health and safety. Separately, the opinion imposes a

regime where the Association’s conduct alters the

meaning of the contract. The opinion vitiated the

bylaws’ anti-waiver provision and rendered the Association’s primary obligation (bylaw enforcement) illusory. Indeed, the opinion held that the Association’s

very failure to enforce the bylaws absolved it of the

obligation to do so. But see Mich. Comp. Laws §§ 559.

207, 559.215 (expressly preserving the right of coowners to bring actions against condominium associations for failure to enforce bylaws). The parties never

asked for such a draconian result.

3. The opinion improperly displaced Michigan law.

The Sixth Circuit concluded that “[c]ontext compels

limiting th[e] bylaw’s coverage to activities that most

residents would reasonably find significantly bothersome—in contrast to activities that can be ‘generally

expected’ in a condo complex.” App.18a-19a (original

emphasis in italics). The Michigan Supreme Court has

instructed, however, that “fundamental principles of

contract law preclude such subjective post hoc judicial

determinations of ‘reasonableness’ as a basis upon

27

which courts may refuse to enforce unambiguous

contractual provisions.” Rory v. Cont’l Ins. Co., 703

N.W.2d 23, 26, 28 (Mich. 2005) (unanimous). Michigan

law does not permit courts to impose their own

suppositions about the intentions and expectations of

contracting parties. See Kendzierski v. Macomb Cty.,

931 N.W.2d 604, 609 (Mich. 2019). Courts must give

unambiguous terms their plain and ordinary meaning,

and if ambiguous, the question of meaning must be

submitted to a jury. See Rory, 703 N.W.2d at 28; Klapp

v. United Ins. Grp. Agency, Inc., 663 N.W.2d. 447,

453-54 (Mich. 2003). The Sixth Circuit did neither.

The Sixth Circuit also improperly created an idiosyncratic “default rule” for tobacco-related nuisances.

Under Michigan law, however, a “nuisance may be

merely a right thing in the wrong place, like a pig in

the parlor instead of the barnyard.” Obrecht v. Nat’l

Gypsum Co., 105 N.W.2d 143, 151 (Mich. 1960); see also

Whittemore v. Baxter Laundry Co., 148 N.W. 437, 437

(Mich. 1914) (stating that otherwise lawful activity

can be a nuisance). A cause of action for nuisance

arises whenever another “render[s] the enjoyment of

life within the house uncomfortable, whether it be by

infecting the air with noisome smells, or with gases

injurious to health.” Kilts v. Bd. of Supervisors, 127

N.W. 821, 823 (Mich. 1910). It is not even “necessary

that the smell [is] unwholesome. It is enough if it

renders the enjoyment of life and property uncomfortable.” Id. The Michigan Supreme Court has opined

on the actionability of smoke and odor nuisances on

several occasions. See e.g., Obrecht, 105 N.W.2d at 152;

Hillsdale v. Hillsdale Iron & Metal Co., 100 N.W.2d

467, 472 (Mich. 1960); Kundinger v. Bagnasco, 298

N.W. 386, 387 (Mich. 1941); Nw. Home Owners Ass’n

28

v. Detroit, 299 N.W. 740, 741 (Mich. 1941). The Sixth

Circuit was without the authority to create a new

“default rule” without consideration of this case law.

Nevertheless, there is no principled basis for treating

tobacco with favoritism:

Courts, after all, long ago recognized the

inherent risks of cigarette smoking. Cigarettes

are wholly noxious and deleterious to health.

Their use is always harmful, never beneficial.

They possess no virtue, but are inherently

bad, and bad only. And physicians suspected

a link between smoking and illness for

centuries. In 1604, King James I wrote “A

Counterblaste to Tobacco,” that described

smoking as a custom loathsome to the eye,

hateful to the nose, harmful to the brain,

dangerous to the lung, and the black stinking

fume thereof, nearest resembling the horribly

Stygian smoke of the pit that is bottomless.

Walker v. R.J. Reynolds Tobacco Co., 734 F.3d 1278,

1290 (11th Cir. 2013) (internal citations and quotation

marks omitted).

4. The opinion improperly fails to acknowledge

material evidence supporting Davis’ claims and abrogates well-established standards governing summary

judgment. See Tolan, 572 U.S. at 659. As an example,

the Sixth Circuit made an improper credibility determination when it rejected board member testimony

that smoking raises the rate of insurance solely

because Davis did not preemptively explain why the

board member “may competently opine on actuarial

science.” App.21a. Plaintiffs have never been required

to establish the credibility of the defendants to avoid

summary judgment. While this Court is “not equipped

29

to correct every perceived error coming from the

lower federal courts” it should nevertheless “intervene

here because the opinion [ ] reflects a clear misapprehension of summary judgment standards in light

of [this Court’s] precedents.” Tolan, 572 U.S. at 659.

III. THE COURT SHOULD GRANT CERTIORARI TO PROTECT

THE BALANCE OF POWER BETWEEN CONGRESS AND

THE JUDICIARY AND THE WELL-ESTABLISHED

DIVISION BETWEEN THE ROLE OF JUDGES AND

JURIES.

1. The distance to equal opportunity for persons

with disabilities in the United States remains considerable in the face of pervasive social, cultural, and

legal roots of disability-based discrimination. The FHA’s

stated policy is “to provide, within constitutional limitations, for fair housing throughout the United States.”

§ 3601. In interpreting the FHA, this Court has been

mindful of the Act’s “broad and inclusive” compass.

City of Edmonds v. Oxford House, Inc., 514 U.S. 725,

731 (1995). The FHA makes it unlawful to refuse to

make “reasonable accommodations in rules, policies,

practices, or services, when such accommodations may

be necessary to afford [the disabled an] equal opportunity to use and enjoy a dwelling[.]” § 3604(f)(3)(B).

Currently, there is no case from this Court construing

§ 3604(f)(3)(B). For guidance, courts often look to precedent related to the Americans with Disabilities Act

(“ADA”), 42 U.S.C. § 12101 et seq. and the Rehabilitation Act (“RA”), 29 U.S.C. § 701 et seq.

In 1973, Congress enacted the RA. The RA makes

it unlawful to discriminate against an “otherwise

qualified individual . . . solely by reason of her or his

disability” in any program or activity receiving federal

30

financial assistance. 29 U.S.C. § 794(a). In 1979, the

Court in Southeastern Community College v. Davis

held that the RA’s prohibition on discrimination “solely

by reason of [a] handicap” did not prevent schools

from imposing physical qualification requirements

for clinical training programs. 442 U.S. 397, 405 (1979)

(emphasis added). The Court reasoned that a proper

construction of the RA’s statutory language does not

require a “fundamental alteration in the nature of a

program.” Id. at 408 (emphasis added). The Court in

Alexander v. Choate explained that Southeastern

Community College “struck a balance between the

statutory rights of the handicapped to be integrated

into society and the legitimate interests of federal

grantees in preserving the integrity of their programs

. . . .” 469 U.S. 287, 300 (1985).

Enacted in 1990, the ADA makes it unlawful to

discriminate against the disabled in a variety of

contexts, including employment practices and public

accommodations. Similar to the FHA, the ADA

defines discrimination to include a failure to make

reasonable accommodations. Dissimilarly, the ADA’s

statutory text places explicit limitations on this obligation. In the employment context, the ADA requires

that the employee must “otherwise [be] qualified” and

does not require a covered entity to make a reasonable

accommodation if it “can demonstrate that the accommodation would impose an undue hardship on the

operation of the business of such covered entity[.]”

§ 12112(b)(5)(A) (emphasis added). In the public accommodation context, the ADA requires entities to make

reasonable modifications “unless the entity can demonstrate that making such modifications would fundamentally alter the nature of such goods, services, facilities,

31

privileges, advantages, or accommodations.” § 12182

(b)(2)(A)(ii) (emphasis added). Additionally, the ADA

requires entities to “take steps as may be necessary to

ensure that no individual with a disability is excluded,

denied services, segregated or otherwise treated differently . . . unless the entity can demonstrate that taking

such steps would fundamentally alter the nature of the

good, service, facility, privilege, advantage, or accommodation being offered or would result in an undue

burden.” § 12182(b)(2)(A)(iii) (emphasis added).

In Olmstead v. L.C. by Zimring, the Court cautioned against imposing an overly-rigid view of the

fundamental alteration “defense” under the ADA. The

Court held that a sensible construction “would allow

the State to show that, in the allocation of available

resources, immediate relief for the plaintiffs would

be inequitable, given the responsibility the State has

undertaken for the care and treatment of a large and

diverse population of persons with mental disabilities.”

527 U.S. 581, 603-604 (1999). In PGA Tour, Inc. v.

Martin, the Court held that the PGA Tour violated

the ADA by denying a golfer with mobility limitations

a request to use a golf cart during tournaments. 532

U.S. 661, 669, 690 (2001). The Court rejected the argument that a waiver to the “walking rule” would

constitute a fundamental alteration because the rule

was “at best peripheral to the nature” of the event and a

waiver would not impair the “purpose” of tournaments.

Id. at 689-90.

2. Extending the holding in Southeastern Community College to the FHA, the Sixth Circuit in Smith &

Lee Assocs. v. City of Taylor held that an accommodation is reasonable unless it requires “a fundamental

alteration in the nature of the program” or imposes

32

“undue financial and administrative burdens.” 102 F.3d

781, 795 (6th Cir. 1996). The court explained that the

reasonableness inquiry requires a balancing of the

needs of the disabled and the interests of defendants.

Id. In Groner v. Golden Gate Garden Apartments,

the Sixth Circuit stated that the question of whether

a “requested accommodation is required by law is

‘highly fact-specific, requiring case-by-case determination.” 250 F.3d 1039, 1044 (6th Cir. 2001). In Hollis

v. Chestnut Bend Homeowners Ass’n, the Sixth Circuit

reaffirmed the notion that the reasonableness inquiry

is “highly fact-specific” and requires a balancing of

interests. 760 F.3d 531, 541-42 (6th Cir. 2014). The

court noted that unlike the ADA, however, “undue

hardship is not an element of an FHA reasonableaccommodation or reasonable-modification claim” and

is “merely one consideration in the broader reasonableness calculus.” Id. at 543.

3. In this case, the Sixth Circuit imposed two

bright-line rules: (1) an accommodation constitutes

an unreasonable fundamental alteration if it “turns

[a] challenged policy into something else entirely,”

App.13a; and (2) an accommodation is unreasonable

if it “intrude[s] on the rights of third parties,” App.14a.

This holding is improper.

First, the opinion replaced the traditional factintensive inquiry—whether an accommodation would

fundamentally alter the nature of a program—with a

rigid bar that permits discrimination whenever an

accommodation is incompatible with a policy. Notably,

the opinion allows even implicit, discriminatory, and

unreasonable policies to take precedence over the

rights of the disabled. The ruling also bars relief

whenever a requested accommodation places a burden

33

on any person, without regard to whether the burden

would be “undue.” See Smith & Lee Assocs., 102 F.3d

at 795. The opinion improperly transformed the fundamental alteration and undue burden inquiries into

indispensable elements of a failure-to-accommodate

claim as opposed to merely factors in the broader

reasonableness calculus. Cf. Hollis, 760 F.3d at 543.

Second, the opinion converted a traditional jury

question into a question of law. This Court has

instructed that questions which “call for the exercise

of common sense and sound judgement under the

circumstances of particular cases . . . are questions

for the jury to determine.” Schultz v. Pa. R. Co., 350

U.S. 523, 525 (1956). Courts have long recognized that

reasonableness is a question of fact to be submitted

to a jury. See Struble v. Republic Motor Truck Co.,

185 N.W. 792, 797 (Mich. 1921) (“[W]hether a particular use is an unreasonable use and a nuisance is a

question of fact to be submitted to a jury.”); Hubbard

v. Preston, 51 N.W. 209, 210 (Mich. 1892) (explaining

whether it is “reasonable” and “necessary” to eliminate

a nuisance is a question for a jury). The FHA should

be treated no differently.

Third, the Sixth Circuit’s holding is incompatible

with the FHA’s “broad and inclusive” compass. See

City of Edmonds, 514 U.S. at 731. Davis requested

reasonable accommodations that are necessary to

stop her home from being flooded with tobacco and

marijuana smoke. Respondents described the problem

as an “extreme” and “intolerable” “health hazard.”

See Genovese Dep. Tr., 78-79; Williams Dep. Tr., App.

83a-84a. If Davis were an incarcerated individual living

under commensurate conditions, she would have a

viable claim under the Eighth Amendment.

34

The Eighth Amendment’s prohibition against cruel

and unusual punishment requires that “inmates be

furnished with the basic human needs, one of which

is ‘reasonable safety.’” Helling v. McKinney, 509 U.S.

25, 33 (1993). It is “cruel and unusual punishment to

hold convicted criminals in unsafe conditions.” Id.

“Contemporary standards of decency require no less.”

Id. at 32. Guided by these principles, the Court in

Helling held that a prisoner adequately stated a

cause of action under the Eighth Amendment by

alleging that prison officials acted with deliberate

indifference in exposing him to excessive levels of environmental tobacco smoke (“ETS”), posing an unreasonable risk of serious damage to his future health.

Id. at 35-36; see also Cassady v. Donald, 447 Fed.

Appx. 28, 31 (11th Cir. 2011) (holding that forcing an

asthmatic to be exposed to ETS can constitute cruel

and unusual punishment); Warren v. Keane, 196 F.3d

330, 333 (2d Cir. 1999) (“Given the known dangers of

ETS, we conclude that a reasonable person would

have understood that exposing an inmate to high levels

of ETS could violate the Eighth Amendment.”). Nevertheless, the Sixth Circuit’s opinion held that Davis’

request is unreasonable as a matter of law.

It cannot be maintained that the FHA, which is

intended to provide fair housing within constitutional

limits, provides lesser rights than the Eighth Amendment, which represents the constitutional floor on what

is permissible under contemporary standards of human

decency. Simply, if Davis’ requested accommodation

is unreasonable as a matter of law, then nothing is

reasonable.

35

CONCLUSION

For the foregoing reasons, this Court should

grant the petition for certiorari.

Respectfully submitted,

ALAN J. GOCHA

COUNSEL OF RECORD

BROOKS KUSHMAN P.C.

1000 TOWN CENTER

TWENTY-SECOND FLOOR

SOUTHFIELD, MI 48075

(248) 358-4400

AGOCHA@BROOKSKUSHMAN.COM

JUSTIN A. BARRY

BARRY LEGAL PLLC

P.O. BOX 700062

PLYMOUTH, MI 48170

COUNSEL FOR PETITIONER

APRIL 20, 2020