United States District Court, D. Idaho
JEREMY R. MORRIS, KRISTY MORRIS, Plaintiffs/Counter-Defendants,
WEST HAYDEN ESTATES FIRST ADDITION HOMEOWNERS ASSOCIATION, INC., Defendant/Counter-Claimant.
MEMORANDUM DECISION AND ORDER
LYNN WINMILL U.S. DISTRICT COURT JUDGE
motions are presently before the Court: Jeremy Morris'
and Kristy Morris' Motion for Injunctive Relief in the
Form of De-Annexation from the West Hayden Estates Homeowners
Association (Dkt. 107); West Hayden Estates First Addition
Homeowners Association, Inc.'s (hereinafter,
“Homeowners Association”) Motion for Judgment as
a Matter of Law Pursuant to Federal Rule of Civil Procedure
50(b); and the Homeowners Association's Motion to Strike
Affidavits of Jeremy Morris, Lorilee Anne Addy, and Russell
Deming (Dkt. 115). The Court GRANTS the Homeowners
Association's Motion for Judgment as a Matter of Law.
Plaintiffs' Motion for Injunctive Relief in the Form of
De-Annexation from the West Hayden Estates Homeowners
Association (Dkt. 107) and the Homeowners Association's
Motion to Strike Affidavits of Jeremy Morris, Lorilee Anne
Addy, and Russell Deming (Dkt. 115) are DENIED.
Judgment as a Matter of Law
Rule of Civil Procedure 50 governs a request for a judgment
as a matter of law. Under Rule 50(a), a party must first move
for judgment as a matter of law before the case is submitted
to the jury and “specify . . . the law and facts that
entitle the movant to the judgment.” Fed.R.Civ.P.
50(a)(2). Under Rule 50(b), if the court denies the
pre-verdict motion, “the movant may file a renewed
motion for judgment as a matter of law and may include an
alternative or joint request for a new trial under Rule
59.” Fed.R.Civ.P. 50(b). The failure to make a Rule
50(a) motion before the case is submitted to the jury
forecloses the possibility of the Court later considering a
Rule 50(b) motion. Tortu v. Las Vegas Metropolitan Police
Dep't., 556 F.3d 1075, 1083 (9th Cir. 2009).
Furthermore, “[a] post-trial motion for judgment can be
granted only on grounds advanced in the pre-verdict
motion.” Fed.R.Civ.P. 50(b), advisory committee's
note to 1991 amendment.
may grant a Rule 50 motion for judgment as a matter of law
only if “there is no legally sufficient basis for a
reasonable jury to find for that party on that issue.”
Krechman v. County of Riverside, 723 F.3d 1104, 1109
(9th Cir. 2013) (citing Jorgensen v. Cassiday, 320
F.3d 906, 917 (9th Cir. 2003) (quoting Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 149
(2000))). “A jury's verdict must be upheld if it is
supported by substantial evidence . . . even if it is also
possible to draw a contrary conclusion from the same
evidence.” Wallace v. City of San Diego, 479
F.3d 616, 624 (9th Cir. 2007). “[I]n entertaining a
motion for judgment as a matter of law, the court . . . may
not make credibility determinations or weigh the
evidence.” E.E.O.C. v. Go Daddy Software,
Inc., 581 F.3d 951, 961 (quoting Reeves, 530
U.S. at 150). Rather, “[t]he evidence must be viewed in
the light most favorable to the nonmoving party, and all
reasonable inferences must be drawn in favor of that
New Trial Pursuant to Rule 59(d)
59(d) provides that “[n]o later than 28 days after the
entry of judgment, the court, on its own, may order a new
trial for any reason that would justify granting one on a
party's motion.” A trial court has not only the right
but “indeed the duty . . . to weigh the evidence as he
[or she] saw it . . . and to set aside the verdict of the
jury, even though supported by substantial evidence, where,
in his [or her] conscientious opinion, the verdict is
contrary to the clear weight of the evidence, or is based
upon evidence which is false, or to prevent, in the sound
discretion of the trial judge, a miscarriage of
justice.” Moist Cold Refrigerator Co. v. Lou
Johnson Co., 249 F.2d 246, 256 (9th Cir. 1957).
a court need not consider the evidence in a manner that
favors the prevailing party and it may grant a new trial even
if there is some evidence in support of the prior decision,
it should not grant a new trial unless it more than simply
disagree[s] with the verdict.” Gates v. Boyle,
No. CV 05-59-M-DWM, 2007 WL 9710298, at *1 (D. Mont. Mar. 15,
2007) (Molloy, J.) (internal quotation omitted). “[A]
decent respect for the collective wisdom of the jury, and for
the function entrusted to it in our system, certainly
suggests that in most cases the judge should accept the
findings of the jury, regardless of his own doubts in the
matter.” Landes Const. Co. v. Royal Bank of
Canada, 833 F.2d 1365, 1371 (9th Cir. 1987) (citation
omitted). “Nonetheless, a new trial is appropriate
where the court has a firm conviction of the jury's error
and an attendant miscarriage of justice.”
Gates, 2007 WL 9710298, at *1 (internal quotations
omitted). Unlike a Rule 50 motion, under Rule 59 the trial
court may assess the credibility of the witnesses. See
Kode v. Carlson, 596 F.3d 608, 612 (9th Cir. 2010) (per
curiam). A new trial may also be granted if the Court
concludes that a party was prejudiced by erroneous
evidentiary decisions or by some other unfairness in the
trial. See Gilbrook v. City of Westminster, 177 F.3d
839, 858 (9th Cir. 1999).
also allows the trial court to “grant a defendant's
motion for a new trial or conditionally deny the motion,
provided the plaintiff accepts a remittitur.” J.N.
v. Hendrickson, No. 214CV02428DDPPLAX, 2017 WL 2539390,
at *3 (C.D. Cal. June 12, 2017) (citing Fenner v.
Dependable Trucking Co., Inc., 716 F.2d 598, 603 (9th
Cir. 1983). The reduced award “must reflect the maximum
amount sustainable by the proof.” Oracle Corp. v.
SAP AG, 765 F.3d 1081, 1094 (9th Cir. 2014) (internal
quotation and citation omitted). “The plaintiff may
choose either to accept the reduced damage award or to submit
to a new trial.” Hendrickson, 2017 WL 2539390,
at *3. Broadly, remittitur is appropriate when the damages
are “grossly excessive or monstrous, clearly not
supported by the evidence, or only based on speculation or
guesswork.” Los Angeles Memorial Coliseum
Comm'n v. Nat'l Football League, 791 F.2d 1356,
1360 (9th Cir. 1986).
Interpretation of CC&R Provisions
covenants are valid and enforceable in Idaho. Sun Valley
Ctr. v. Sun Valley Co., 107 Idaho 411, 413 (1984). A
number of principles apply when a Court interprets CC&Rs.
First, “covenants are not to be construed to extend by
implication any restriction not clearly expressed in the
covenants.” Brown v. Perkins, 129 Idaho 189,
192 (1996). Second, “all doubts and ambiguities are to
be resolved in favor of the free use of land.”
than the rule that CC&R provisions will not be extended
by implication, ordinary rules of construction apply when
interpreting CC&R provisions. Sun Valley
Ctr., 107 Idaho at 413. Where the terms of the
CC&R provisions are clear, interpretation is a question
of law. City of Chubbuck v. City of Pocatello, 127
Idaho 198, 201 (1995). Conversely, where the terms of the
CC&R provisions are ambiguous, interpretation is a
question of fact. St. Clair v. Krueger, 115 Idaho
702, 704 (1989).
Court's decision will proceed in the following fashion.
First, the Court will offer two prefatory observations
regarding the key piece of evidence in this case and an
evidentiary issue that unfairly prejudiced the Homeowners
Association. Then, the Court will evaluate the specific
evidentiary deficiencies for each of Plaintiffs' three
Fair Housing Act claims. Finally, the Court will evaluate the
Homeowners Association's counterclaim.
An Ordinary Reader Would Not Interpret the Letter Sent by the
Homeowners Association to Plaintiffs as Discriminating on the
Basis of Plaintiffs' Religion
Court begins by reviewing the evidence that forms the crux of
Plaintiffs' case: the letter sent by Board Member Pat
Kellig to Plaintiffs on January 15, 2015 (hereinafter, the
“January 2015 Letter”). Exhibit
3005. The first draft of the January 2015
Letter was written by West Hayden resident and former member
of the West Hayden Homeowners Association Board Larry
Strayer. In his draft, which Mr. Strayer shared with the
Board via email on January 14, 2015, Mr. Strayer first
identified a number of CC&R provisions that he believed
Plaintiffs' Christmas program would violate. Exhibit.
1091. Then, Mr. Strayer added the following conclusion:
And finally, I am somewhat hesitant in bring up the fact that
some of our residents are avowed atheists and I don't
even want to think of the problems that could bring up. It is
not the intention of the Board to discourage you from
becoming part of our great neighborhood but we do not wish to
become entwined in any expensive litigation to enforce long
standing rules and regulations and fill our neighborhood with
the riff-raff you seemed to attract over by WalMart..
[sic] Grouse Meadows indeed!!! We don't allow
"those kind" in our neighborhood.
Exhibit 1091 at 2. Mr. Strayer's draft was subsequently
reviewed and edited by several members of the Board,
including Board President Jennifer Scott and Ms. Kellig. Ms.
Kellig circulated a draft on January 15, 2015 in which she
“changed the atheist bit and toned . . . [the draft]
down.” Exhibit 1091 at 3.
though Ms. Kellig did not have Board approval to send the
January 2015 Letter, which was still being edited, Ms. Kellig
nevertheless sent it to Plaintiffs. The version of the
January 2015 Letter sent to Plaintiffs changed Mr.
Strayer's language to the following:
And finally, I am somewhat hesitant in bringing up the fact
that some of our residents are non-Christians or of another
faith and I don't even want to think of the problems that
could bring up. It is not the intention of the Board
to discourage you from becoming part of our great
neighborhood but we do not wish to become entwined in
expensive litigation to enforce long standing rules and
regulations and fill our neighborhood with the hundreds of
people and possible undesirables. We have worked hard to keep
our area peaceful, quiet, and clean. Neighbors respect the
CC&R's [sic] and show common courtesy to
those around them. These are why people want to live here.
turning to the analysis below, the Court acknowledges that at
the summary judgment phase of this proceeding, it concluded,
largely on the basis of January 2015 Letter, that West Hayden
was not entitled to summary judgment. Specifically, the Court
stated that “the letter . . . coupled . . . with other
statements . . . [suggesting that members of the West Hayden
Board had a] personal animus [towards Plaintiffs]” was
sufficient to survive summary judgment. Dkt. 59, 42:9-16.
retrospect, the Court believes that its earlier decision was
in error. The Board's revisions to Mr. Strayer's
draft demonstrate that it was not the Board's intent to
discriminate against Plaintiffs based on their religion. To
the contrary, an ordinary reader would plainly understand the
Board's statement that “some of our residents are
non-Christians or of another faith and I don't even want
to think of the problems that could bring up” (Exhibit
3005) as an attempt to express a concern that Plaintiffs'
Christmas program, if allowed to proceed, would leave
non-Christian homeowners in the West Hayden Estates with the
impression that an exception was being made to the CC&Rs
in favor of Christians. Far from being intolerant, the
January 2015 Letter's religious reference was an attempt
to respect religious pluralism. Furthermore, the January 2015
Letter's use of the term “undesirables” is an
attempt raise the safety concerns associated with bringing a
large number of unknown individuals to a normally quiet and
calm area. Though the language was not drafted with lawyerly
precision, an ordinary reader reviewing the January 2015
Letter would not infer, based solely on the writing's
contents, that the Board intended to discriminate against
Plaintiffs based on their Christian faith.
the plain text of the January 2015 Letter, the circumstances
in which it was sent also demonstrate that the Board did not
intend to discriminate against Plaintiffs. To begin with, the
initial draft of the January 2015 Letter was written by a
former, rather than current, board member, Mr. Strayer. Of
course, Mr. Strayer was likely an agent of the Board given
that he was acting at the request of Board President Jennifer
Scott, but nevertheless it is telling that the most
incendiary language in this case was drafted by a non-party
to this lawsuit. Furthermore, Mr. Strayer's language was
immediately “toned … down” when it was
reviewed by an actual member of the Board, Ms. Kellig. As
such, the draft language has little if any relevance to the
Board's actual intent; at most, it reveals Mr.
Strayer's feelings about Plaintiffs' Christmas
any intent by the Board to discriminate is also belied by the
fact that Ms. Kellig did not obtain final approval from the
Board before she sent the January 2015 Letter to Plaintiffs.
Thus, the January 2015 Letter provides, at most, an
incomplete picture as to the Board's true intent. Indeed,
Ms. Scott testified that had she had the opportunity to
review the January 2015 Letter before Ms. Kellig sent it out,
she would not have approved of sending it. Although Ms.
Scott's testimony may have been partially a product of
hindsight, it is still true that the January 2015 Letter
lacked the Board's official approval and did not, in any
event, reflect an intent to discriminate.
the timeframe in which the January 2015 Letter was drafted
and sent confirms that the Homeowners Association did not
intend to discriminate against Plaintiffs. Plaintiffs entered
into a purchase contract for their home on January 5, 2015.
Exhibit 3009. Shortly thereafter, on January 12, 2015, Mr.
Morris called Ms. Scott to alert her and the Board that he
(1) was about to close on a home in West Hayden Estates and
(2) intended to use that home for his Christmas program. Mr.
Morris informed Ms. Scott that he needed a quick answer
regarding whether the Board would oppose his Christmas
program on the basis that it violated the CC&Rs. In
response, the Board met on January 13th, and the January 2015
Letter was thereafter drafted and sent to Mr. Morris. Exhibit
1091; Exhibit 3005. From this series of events, it is evident
that rather than attempting to interfere with Plaintiffs'
purchase of the home, the Board was in fact acting in a
solicitous manner by trying to get Plaintiffs the quick
answer that Mr. Morris was asking for.
West Hayden Was Unfairly Prejudiced by the Admission of
Ultimately Stricken Evidence Regarding Threats from West
Hayden Homeowners to Plaintiffs and Christmas Program
trial in this case was also infected by repeated testimony
and exhibits related to threats allegedly received by
Plaintiffs and other attendees of the Christmas program from
homeowners in the West Hayden Estates. For example, Ms.
Morris testified that “[w]e had a neighbor that came to
our driveway that threatened to kill my husband. And we took
the threat seriously. And so it was advised that I just -- I
take my daughter and I leave.” Ms. Morris identified
the individual who threatened to kill her husband as West
Hayden homeowner Larry Bird. Additionally, Tatyana Burda,
Katie Dotts, Jessica Hotvedt, Annabelle Sky Farley, Blaine
Svetich, David Silva, Russell Deming all testified that they
witnessed threating behavior from individuals who appeared to
be West Hayden homeowners.
jury also heard Exhibit 3034, in which Mr. Morris
surreptitiously recorded a conversation he had with Board
Member Ron Taylor. During that exchange, Mr. Morris made the
following statement “How about we circulate a letter
about Larry Bird threatening to murder my family, by the way
it is on tape. It is on tape, played it for the Sheriff's
Deputies. It is on tape, says he is gonna take care of me and
that the people that showed up, the militia people or
whatever the three percenters could not protect me.”
Exhibit 3034, 4:50-5:06.
this evidence was offered, but before Plaintiffs' counsel
could solicit additional testimony from Mr. Morris on the
subject, the Court ordered briefing with respect to whether,
under the Fair Housing Act, the Homeowners Association had a
duty to police and correct discriminatory behavior from
homeowners who were not members of the Board. After reviewing
the briefing and case law, the Court concluded that West
Hayden could not be held liable for conduct by non-party
homeowners because it lacked the ability to police and
effectively control the actions of the homeowners that were
allegedly discriminating against Plaintiffs and the Christmas
program attendees. The Court therefore barred Mr. Morris from
testifying regarding the alleged death threat made by Mr.
Bird and barred Plaintiffs' counsel from introducing Mr.
Morris' surreptitious recording of that incident.
Additionally, the following instruction was provided to the
jury prior to their deliberations:
The Homeowners Association is only liable for actions taken
by (1) members of the Board, (2) agents of the HOA, and (3)
employees of the HOA. The Homeowners Association is not
liable for actions of residents who do not fall in to one of
the three listed categories above. You are reminded that I
have instructed you to disregard the portions of the
testimony of Tatyana Burda, Katie Dotts, Jessica Hotvedt,
Annabelle Sky Farley, Blaine Svetich, David Silva, Russell
Deming, and Kristy Morris that described their interactions
with an individual shouting at them on the street, because it
was not established that such individual was a member of the
Board or an agent or employee of the HOA. I also instructed
you to disregard the portion of Exhibit 3034 which discussed
the threats made against Mr. and Mrs. Morris by Mr. Bird, for
the same reason. That evidence has been stricken, and you are
not to consider it in reaching your verdict.
the Court ordinarily presumes that jurors will follow the
Court's instructions with respect to stricken evidence,
S. Pac. Co. v. Smith, 83 F.2d 451, 452 (9th Cir.
1936), the presumption is not absolute. In this case, it is
exceedingly unlikely that the jury was actually able to set
aside the testimony of nine witnesses regarding threats they
received from third parties. Moreover, Ms. Morris'
testimony regarding Mr. Bird's “death threat”
and the impact it had on her undoubtedly remained in the mind
of the jury, despite the Court's instruction.
unfair prejudice suffered by the Homeowners Association was
compounded by the fact that Plaintiffs' characterization
of Mr. Bird's statements as a “death threat”
is an embellishment. The Court reviewed Plaintiffs'
proposed exhibit 1005, which is a recording of a conversation
between Mr. Morris and Mr. Bird, in which Mr. Bird allegedly
threatened to kill Mr. Morris. Mr. Bird's statements, as
recorded, cannot be reasonably interpreted as a credible
the jury, despite the Court's instructions, undoubtedly
considered the threats made to the Plaintiffs and the
Christmas program attendees in arriving at their verdict.
Worse yet, the “death threat” that Plaintiffs
referred to frequently early on in the trial was hyperbole.
As a result of the unique circumstances in this case,
Plaintiffs benefited (1) by improperly getting evidence
regarding threats before the jury and (2) having that
evidence excluded before the Homeowners Association could
expose the hyperbole. This result is unjust.
Plaintiffs Failed to Offer Sufficient Proof in Support of
Their Fair Housing Act Claims
42 U.S.C. § 3604(b) Claim
3604(b) of the Fair Housing Act makes it unlawful to
“discriminate against any person in the terms,
conditions, or privileges of sale … of a dwelling, or
in the provision of services or facilities in connection
therewith, because of” that person's religion. To
prove that the Homeowners Association violated section
3604(b), Plaintiffs were required to prove each of the
following by a preponderance of the evidence:
1. They were qualified to purchase a home in the West Hayden
2. The Homeowners Association intentionally discriminated
against Plaintiffs' during the process of purchasing
their home or after its purchase; and
3. The discrimination was, at least in part, due to
Plaintiffs' religious beliefs or practices.
Plaintiffs failed during the trial to offer proof upon which
a reasonable jury could conclude that the Homeowners
Association intentionally discriminated against
Plaintiffs. To reiterate, the January 2015 Letter, and the
circumstances under which it was drafted and sent, do not
support the conclusion that the Homeowners Association
intended to discriminate against Plaintiffs. To the contrary,
in an effort to be responsive to Plaintiffs' demand for a