The opinion of the court was delivered by: Honorable Candy W. Dale Chief United States Magistrate Judge
MEMORANDUM DECISION AND ORDER RE:
(1) Defendant's Motion for Summary Judgment (Dkt. No. 32);
(2) Plaintiff's Motion for Summary Judgment (Dkt. No. 54);
(3) Plaintiff's Motion to Compel Discovery (Dkt. No. 61);
(4) Defendant's Motion for Leave to File Post Hearing Supplemental Affidavit (Dkt. No. 80)
Intermountain Fair Housing Council ("IFHC") instituted this action against Orchards at Fairview Condominium Association, Inc. ("the Association") and Windermere Real Estate/Capital Group, Inc. ("Windermere"), alleging that the Orchards at Fairview Condominiums--which are managed by the Association and sold by Windermere--discriminate on the basis of "familial status" and "handicap" in violation of the Fair Housing Act, 42 U.S.C. § 3601 et seq. Specifically, IFHC claims the following items violate the Fair Housing Act: (1) a sign at the entrance of the condominiums containing the phrase "Active-Adult Condominium Communities"; (2) the condominium rules prohibiting unaccompanied minor children from using the community center and swimming pool; and (3) a restrictive covenant prohibiting the use of the condominiums as "group homes."
Before the Court are four motions, all of which are ripe at this time. IFHC and the Association have both filed motions for summary judgment. The Association moves for summary judgment on two grounds, arguing (1) IFHC's claims are barred by the statute of limitations, and (2) even assuming discrimination occurred, the Association is not the proper party because, as an owners association, it did not promulgate the allegedly discriminatory documents and has no control over the content of the offending items. IFHC moves for summary judgment on all of its claims against the Association, arguing that no issues of material fact exist and that it is entitled to judgment as a matter of law.*fn1
The Court heard oral arguments on the parties' motions for summary judgment and IFHC's Motion to Compel (Dkt. No. 61) on December 9, 2010. Following the hearing, the Association filed a Motion for Leave to File Post Hearing Supplemental Affidavit (Dkt. No. 80) related to an issue that arose during oral argument on the parties' motions.*fn2
Having carefully considered the papers submitted and oral arguments of counsel, for the reasons discussed below the Court will deny both parties' motions for summary judgment. IFHC's motion to compel and the Association's motion for leave also will be addressed below.
In October 2005, Richard Mabbutt, the Executive Director of IFHC, claims he viewed an article published in the Idaho Statesman describing the Orchards at Fairview Condominiums*fn3 (hereinafter "condominiums" or "subject property") as an "empty nester" community. See Verified Complaint and Demand for Jury Trial, ¶ 12 (Dkt. No. 1.) Based on the article in the local paper, on December 6, 2005, Mr. Mabbutt met with Michael Dixon. Mr. Dixon is the manager of the Orchards LLC, which manages the Orchards at Fairview LLC. The Orchards at Fairview LLC is the owner/developer of the subject property. Neither Mr. Dixon nor Orchards at Fairview LLC are defendants in this case. Mr. Mabbutt claims that, during the meeting, he warned Mr. Dixon that the use of the word "adult" in the advertising material for the condominiums would violate the Fair Housing Act. Verified Complaint and Demand for Jury Trial, ¶ 15.
IFHC's complaint alleges that, in May of 2007, Mr. Mabbutt observed a sign at the subject property which described the property as an "active adult condominium community." Id., at ¶ 16. On or about May 16, 2007, an IFHC tester met with Mary Liese, an agent for Defendant Windermere, at the subject property in an attempt to purchase and/or rent a condominium. Verified Compl., ¶ 17. The complaint alleges that, during this meeting, Ms. Liese made discriminatory statements to the IFHC tester, such as "we prefer people 55 and over" and specifically pointed out that the complex does not have a playground. Id.
The IFHC tester also was provided with a document entitled "Commonly Asked Questions on Condominium Ownership," which describes the condominium rules, including restrictions on the use of the community center and swimming pool by children under 18 and an outright prohibition on swing sets in the common areas. These rules arise from the Condominium Community Policies and Guidelines ("Guidelines"). The Guidelines provide that "[a]ll children under the age of 18 must be accompanied by an adult resident age 18 or older," and that "[c]hildren and teenage parties are prohibited" at the condominium community center. Aff. of Mike Keller, Exh. D, Community Policies and Guidelines (Dkt. No. 34.) The Guidelines also prohibit the following items in the condominium common areas: "any type of yard sign, statue, statuette, yard or lawn ornament, artificial flowers, ornamental rocks or stones, cypress mulch, swing sets, mounted hose reels, laundry poles or clotheslines, or other such items." Id. (emphasis added).
On May 23, 2007, a second IFHC tester was sent to the subject property and received the same materials as the first tester. The second tester also requested, and was provided, a copy of the Condominium Declaration and Covenants, Conditions and Restrictions ("CC&R's"). The CC&R's contain a provision that provides "no Unit may be used as a rooming house, group home, commercial foster home, fraternity or sorority house, or any similar type of lodging, care or treatment facility." Aff. of Mike Keller, Exhibit C, Condominium Declaration and Covenants, Conditions and Restrictions for the McKinney Condominiums (Dkt. No. 34) (emphasis added).
The CC&R's also provide that, after the first sale of a unit at the subject property, the authority to amend the CC&R's is vested in the Association. Id., at ¶ 14.2. The first sale of a unit at the subject property occurred in October 2006. Further, the CC&R's provide for the promulgation and distribution of the Orchards' Guidelines. Id., at ¶ 184.108.40.206. The CC&R's are recorded with the Ada County Recorder's Office. (Dkt. No. 57.)
On July 17, 2007, IFHC filed an administrative complaint of discrimination with Housing and Urban Development ("HUD") on the basis of "familial status." IFHC filed a second complaint with HUD, adding a charge of discrimination on the basis of "handicap," on September 7, 2007. IFHC withdrew its complaint, thereby terminating the administrative proceedings related to both charges, on January 24, 2008.
IFHC filed its complaint with this Court on October 15, 2009, alleging four violations of the Fair Housing Act. First, IFHC claims that the sign at the entrance of the condominiums (which includes the phrase "Active-Adult Condominium Communities") and the Guidelines (which prohibit unaccompanied minor children from using the swimming pool and community center) discriminate on the basis of "familial status" in violation of 42 U.S.C. § 3604(b). Second, IFHC claims that the provision in the CC&R's restricting the use of the condominiums as "group homes" discriminates on the basis of "handicap" in violation of 42 U.S.C. § 3604(f). Third, IFHC claims that the sign, Guidelines, and CC&R's constitute discriminatory notices, statements, or advertisements in violation of 42 U.S.C. § 3604(c). Finally, IFHC claims that the Association's failure to rectify the alleged violations constitutes "interference, coercion or intimidation" within the meaning of the Fair Housing Act in violation of 42 U.S.C. § 3617.
Both parties request that the Court enter summary judgment in their favor. IFHC has also filed a Motion to Compel Discovery (Dkt. No. 61), and the Association has filed a Motion for Leave to File Post Hearing Affidavit (Dkt. No. 80). All four motions will be taken up in the discussion below.
1. Standard for Summary Judgment
Summary judgment is appropriate when, viewing the facts in the light most favorable to the nonmoving party, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). The moving party bears the initial burden of stating the basis for its motion and identifying those portions of the record demonstrating the absence of genuine issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323-324 (1986). "If the party moving for summary judgment meets its initial burden of identifying for the court those portions of the material on file that it believes demonstrates the absence of any genuine issues of material fact," the burden of production shifts and "the non moving party must set forth, by affidavit or as otherwise provided in Rule 56, 'specific facts showing that there is a genuine issue for trial.'" T.W. Electrical Service, Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987) (quoting Fed. R. Civ. P. 56(e)).
The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party, Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir. 1987). Factual disputes whose resolution would not affect the outcome of the suit are irrelevant to the consideration of a motion for summary judgment. Liberty Lobby, Inc., 477 U.S. at 248. On the other hand, "[i]f the determination of the case rests on which competing version of the facts or events is true, the case should be submitted to the trier of fact." Advocacy Center for Persons with Disabilities, Inc. v. Woodlands Estates Assoc. Inc., 192 F. Supp. 2d 1344, 1347 (M.D. Fla. 2002).
Finally, the fact that both parties file motions for summary judgment, as they have in this case, does not alter the analysis under Rule 56; the court must consider each motion separately, with care taken to draw all reasonable inferences in favor of the nonmoving party. Fair Housing Council v. Riverside Two, 249 F.3d 1132, 1136 (9th Cir. 2001).
2. Defendant's Motion for Summary Judgment
The Association moves for summary judgment on two grounds. First, the Association argues that IFHC's claims are barred by the applicable statute of limitations. Second, the Association argues that IFHC cannot prove discriminatory conduct attributable to the Association because, as a condominium association, it did not promulgate the CC&R's or the rules contained in the condominium Guidelines, "has no authority to rescind, amend or alter the foregoing documents, and is in no way involved with advertising or marketing the condominium units." Def.'s Mem. in Supp. ...