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Lath v. Oak Brook Condominium Owners' Association

United States District Court, D. New Hampshire

March 20, 2017

Sanjeev Lath
Oak Brook Condominium Owners' Association, Cheryl Vallee, Perry Vallee, William Quinn Morey, Gerald Dufresne, Christos Klardie, Vickie Grandmaison, Patty Taylor, Betty Mullen, Scott Sample, John Bisson, and Warren Mills Opinion No. 2017 DNH 052


          Landya McCafferty United States District Judge

         Pro se plaintiff Sanjeev Lath, who owns a unit in the Oak Brook Condominium, asserts several dozen federal and state claims against the Oak Brook Condominium Unit Owner's Association (“Association”); the Association's attorney (John Bisson); six current or former members of the Association's board of directors, some of whom are current or former officers (Cheryl Vallee, Perry Vallee, William Morey, Christos Klardie, Patty Taylor, Warren Mills); two current or former employees of the Association (Vickie Grandmaison and Scott Sample); and two unit owners (Gerald Dufresne and Betty Mullen). The operative complaint in this case is Lath's first amended complaint (“FAC”), which he filed as a matter of course pursuant to Rule 15(a)(1) of the Federal Rules of Civil Procedure (“Federal Rules”).

         After Lath filed his FAC, three motions to dismiss were filed, one by the Association, Cheryl Vallee, Perry Vallee, Morey, Klardie, Grandmaison, Taylor, and Sample (hereinafter “principal motion to dismiss”); one by Bisson; and one by Mullen. Subsequently, Mills joined the principal motion to dismiss. Dufresne is the only defendant who has not moved to dismiss the FAC. Plaintiff has not objected to any of the three motions to dismiss but, rather, has moved for leave to file a second amended complaint (“SAC”), pursuant to Rule 15(a)(2). An objection to plaintiff's motion for leave to amend has been filed by the Association, Cheryl Vallee, Perry Vallee, Morey, Klardie, Grandmaison, Taylor, Sample, Mills, and Mullen (hereinafter “ten defendants”), and a second objection has been filed by Bisson. Dufresne is the only defendant who has not objected to plaintiff's motion for leave to amend. For the reasons described below, Lath's motion for leave to amend is granted in part, and the three pending motions to dismiss are denied as moot.

         I. The Legal Standard

         Because plaintiff has already amended his complaint once, as a matter of course, any subsequent amendment is governed by the following rule:

[A] party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires.

Fed. R. Civ. P. 15(a)(2). However, while

courts “should freely give leave when justice so requires, ” id., amendments may be denied for several reasons, including “undue delay, bad faith, dilatory motive of the requesting party, repeated failure to cure deficiencies, and futility of amendment.”

Hagerty, ex rel. U.S. v. Cyberonics, Inc., 844 F.3d 26, 34 (1st Cir. 2016) (quoting U.S. ex rel. Rost v. Pfizer, Inc., 507 F.3d 720, 733-34 (1st Cir. 2007); citing Foman v. Davis, 371 U.S. 178, 182 (1962)). “[I]n assessing futility, the district court must apply the standard which applies to motions to dismiss under Fed.R.Civ.P. 12(b)(6).” Morgan v. Town of Lexington, 823 F.3d 737, 742 (1st Cir. 2016) (quoting Adorno v. Crowley Towing & Transp. Co., 443 F.3d 122, 126 (1st Cir. 2006)).

         Under Rule 12(b)(6), the court must accept the factual allegations in the complaint as true, construe reasonable inferences in the plaintiff's favor, and “determine whether the factual allegations in the plaintiff's complaint set forth a plausible claim upon which relief may be granted.” Foley v. Wells Fargo Bank, N.A., 772 F.3d 63, 71 (1st Cir. 2014) (citation omitted). A claim is facially plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Analyzing plausibility is “a context-specific task” in which the court relies on its “judicial experience and common sense.” Id. at 679. Finally, in light of plaintiff's pro se status, the court must construe his pleadings liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007).

         II. Discussion

         In the first part of this section, the court explains its decision to grant plaintiff's motion to amend his FAC. Then, in the second part, the court evaluates each of the claims asserted in the SAC to determine which of them shall remain a part of this case moving forward.

         A. Motion for Leave to Amend

         The ten defendants argue that plaintiff's motion for leave to amend his FAC should be denied because: (1) it was filed in bad faith or with a dilatory motive; (2) amendment would be futile; and (3) plaintiff has failed to comply with the requirements of Local Rule 15(a). Bisson argues that the motion should be denied because: (1) plaintiff has failed to comply with Rule 15(a); (2) plaintiff has already had one chance to cure any deficiencies in his complaint; and (3) amendment would be futile.

         1. LR 15(a)

         Plaintiff's FAC (237 paragraphs, 84 pages) asserts 16 claims. In his motion for leave to amend, plaintiff says that his “proposed amendment would clarify the specific allegations without significantly expanding or altering the scope of this action, ” Pl.'s Mot. for Leave to Amend (doc. no. 48) ¶ 7, and that his “amendment merely provides specific details, incidents, dates and exhibits, ” Id. ¶ 11. Yet, while plaintiff's FAC asserts 16 claims, his proposed SAC (406 paragraphs, 95 pages) asserts more than 40 claims. Some are identical to claims asserted in the first amended complaint, [1] but, necessarily, others are entirely new.[2]

         Understandably concerned by the differences between the FAC and the proposed SAC, both the ten defendants and Bisson point out, correctly, that plaintiff has failed to comply with the local rules of this court, which require plaintiffs moving to amend their complaints to, among other things, “(ii) identify in the motion or a supporting memorandum any new factual allegations, legal claims, or parties, and (iii) explain why any new allegations, claims, or parties were not included in the original filing.” LR 15.1(a). Lath concedes that he has not complied with LR 15.1(a). However, denying Lath's motion for failure to comply with LR 15.1(a) would merely invite another motion for leave to amend, and another round of objections. In the interest of conserving the resources of the parties, the court allows Lath's motion despite a lack of compliance with LR 15.1(a).

         2. Dilatory Motive/Opportunity to Cure

         In reliance upon a chronicle of plaintiff's history of litigation in other for a, and this court's characterization of plaintiff's “numerous recent filings [in this case as] burdensome to the court and defendants, ” Order (doc. no. 49) 2, the ten defendants argue that plaintiff's attempt to amend his complaint is nothing more than a further use of the legal process to harass them. Bisson makes a similar point in his argument that plaintiff has already had a sufficient opportunity to cure any deficiencies in his original complaint. While sympathetic to defendants' concern over having to defend against a stream of claims that seems to continually shift and widen, the court is also mindful of the indulgence it must afford Lath's pleadings, given his status as a pro se litigant. See Erickson, 551 U.S. at 94. In the end, the court declines defendant's request to deny plaintiff's motion on grounds of a dilatory motivation. However, for the reasons explained below, the court dismisses nine claims for failure to meet the Rule 12(b)(6) standard and dismisses five state law claims for lack of jurisdiction.

         3. Futility

         Leave to amend a complaint may be denied if “the complaint, as amended, would fail to state a claim upon which relief could be granted.” D'Agostino v. ev3, Inc., 845 F.3d 1, 6 (1st Cir. 2016) (quoting Glassman v. Computervision Corp., 90 F.3d 617, 623 (1st Cir. 1996); citing 3 Moore's Federal Practice ¶ 15.08[f], at 15-80 (2d ed. 1993)). As the court explains in more detail in the section that follows, Causes 1, 4, 10, 14, 15, 18, 27, 29, and 30 of the SAC state claims upon which relief can be granted. Accordingly, plaintiff's motion for leave to amend cannot be denied on grounds of futility.

         4. Summary

         The Federal Rules provide that, generally speaking, leave to amend a complaint should be freely given. While there are exceptions to that general rule, see Hagerty, 844 F.3d at 34, none of them applies to the circumstances of this case. Accordingly, Lath's motion for leave to amend his FAC is granted, which makes the SAC the operative complaint in this case.

         B. Claims Moving Forward

         While Lath's SAC is now the operative complaint, the court appreciates the difficulties of defending against a 95-page complaint that comes nowhere close to meeting the “short and plain statement” requirement of Rule 8(a) of the Federal Rules. The court also appreciates the challenges in terms of efficiency and economy that would result from directing Lath to correct the deficiencies in the SAC. In addition, the court recognizes that in their three motions to dismiss the FAC, and in their two objections to plaintiff's motion for leave to amend, defendants have argued that some of plaintiff's claims do not pass muster under Rule 12(b)(6), and that the court should decline to exercise supplemental jurisdiction over some of plaintiff's state law claims. Moreover, plaintiff has had an opportunity to respond to all of those arguments.

         In the interest of clarifying and simplifying things for both sides, in the interest of conserving the resources of all parties, and in the interest of judicial economy, the court will devote the remainder of this order to evaluating each of the claims asserted in the SAC. As a result of that analysis, the court will place each of those claims into one of four categories: (1) claims that may proceed because they satisfy Rule 12(b)(6); (2) claims that may proceed if plaintiff is able to show cause why they should not be dismissed under Rule 12(b)(6);[3] (3) claims that are dismissed because they do not satisfy Rule 12(b)(6); and (4) state law claims that are dismissed because the court lacks, or declines to exercise, supplemental jurisdiction over them. In addition, with respect to each claim in the first category, the court will identify the specific defendant(s) against whom plaintiff may pursue that claim.

         It would be conventional to evaluate the claims in plaintiff's SAC in the order in which they are presented. The SAC, however, is somewhat disjointed. Thus, rather than following the organizational scheme of the SAC, the court will adopt its own, beginning its analysis with Lath's federal claims and then turning to the claims that arise under state law. Moreover, for the sake of clarity, the court will impose its own numbering scheme on plaintiff's claims, and directs the parties to use that numbering scheme as this case moves forward.

         1. Fair Housing Act

         In Causes 1 through 13 of the SAC, Lath asserts claims that arise under the federal Fair Housing Act (“FHA”), 42 U.S.C. §§ 3601-3631. Those claims invoke five different theories of FHA liability. The court considers each theory in turn.

         a. Race & Sexual Orientation Discrimination

         Cause 4 of the SAC is a claim for housing discrimination based upon race and sexual orientation. Cause 4, in turn, appears to be a reiteration of Count 7 of the FAC, which asserts:

Defendant Warren Mills [who, at the time, was the president of the Association's board of directors] assaulted Lath, by forcing his way into Lath's residence, and shouting obscenities at Lath, calling him a “faggot” and “sand nigger.” Such actions of Mills were motivated because of Lath's sexual orientation as a bisexual man, and Lath's national origin and race. Such was a violation of 42 U.S.C. § 3604 et. seq.

Doc. no. 19 ¶ 31.

         The SAC gives two different dates for the incident underlying Cause 4. See doc. no. 48-1 ¶ 180 (June 8, 2013) & ¶ 182 (June 8, 2014). However, several exhibits attached to the SAC make it clear that plaintiff intends to allege that the incident took place on June 8, 2014.[4]

         In the principal motion to dismiss the FAC, defendants argue that Count 7 must be dismissed because the FHA's antidiscrimination provisions do not apply to post-acquisition conduct. However, this court has determined, in a previous case, “that ‘the FHA does apply to post-acquisition discrimination.'” United States v. Avatar Props., Inc., No. 14-cv-502-LM, 2015 WL 2130540, at *3 (D.N.H. May 7, 2015) (quoting Comm. Concerning Cmty. Improv. v. City of Modesto, 583 F.3d 690, 713 (9th Cir. 2009)) (emphasis added). Accordingly, defendants' argument does not entitle them to dismissal of Lath's housing discrimination claim.

         That said, the court describes, briefly, the nature of plaintiff's housing discrimination claim. The FHA makes it unlawful “[t]o discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of race, color, religion, sex, familial status, or national origin.” 42 U.S.C. § 3604(b). While the court of appeals for this circuit has not yet been called upon to do so, other courts have recognized a cause of action against those who discriminate by creating a “hostile housing environment” based upon the classifications identified in 42 U.S.C. § 3604(b). See, e.g., West v. DJ Mortg., LLC, 164 F.Supp.3d 1393, 1398 (N.D.Ga. 2016) (discrimination based on sex); Jackson v. Park Place Condos. Ass'n, Inc., 619 F. App'x 699, 703 (10th Cir. 2015), cert. denied, 136 S.Ct. 484 (2015), reh'g denied, 136 S.Ct. 887 (2016) (discrimination based on race). This court will assume, favorably to Lath, that if asked to do so, the First Circuit would recognize a cause of action based upon the creation of a hostile housing environment based upon sexual orientation, race or national origin.[5] Accordingly, plaintiff may proceed with his claim under 42 U.S.C. § 3604(b).

         As this case moves forward, Lath's § 3604(b) hostile housing environment claim shall be referred to as Count 1.

         b. Handicap Discrimination

         Cause 1 of the SAC is a claim for housing discrimination, in the form of a failure to provide Lath with a reasonable accommodation for his mental handicap. Cause 1, in turn, appears to be a reiteration of Count 8 of the FAC. That claim is based upon the following factual allegation:

By constructively refusing to make reasonable accommodations in [the] “no dog” policy as set forth in Rule 9 of its Rules and Regulations for Oak Brook Condominium Owners' Association, and with an intent to retaliate and harass [L]ath for filing a complaint with [the New Hampshire Commission for Human Rights] and [the Equal Employment Opportunity Commission], when such accommodations were necessary to afford Lath equal opportunity to use and enjoy his dwelling, Defendants failed to reasonably accommodate Lath to have the company of an “emotional support” dog.

FAC (doc. no. 19) ¶ 172.

         Under the FHA, failure to modify the rules applicable to a dwelling to provide a reasonable accommodation for a handicapped occupant constitutes unlawful discrimination. See Astralis Condo. Ass'n v. Sec'y, HUD, 620 F.3d 62, 67 (1st Cir. 2010) (citing 42 U.S.C. § 3604(f)(3)(B), which defines discrimination to include “a refusal to make reasonable accommodations in rules, policies, practices, or services, which such accommodations may be necessary to afford [a handicapped] person equal opportunity to use and enjoy a dwelling”).[6] Moreover, a request for a reasonable accommodation may be constructively denied when the entity from whom the accommodation is requested unnecessarily delays its response. See, e.g., United States v. Town of Garner, 720 F.Supp.2d 721, 729 (E.D. N.C. 2010) (“Denial of a reasonable accommodation request may be actual or constructive, ‘as an indeterminate delay has the same effect as an outright denial'”) (quoting Groome Res., Ltd. v. Parish of Jefferson, 234 F.3d 192, 199 (5th Cir. 2000)); see also Sabal Palms Condos. of Pine Island Ridge Ass'n, Inc., 6 F.Supp.3d 1272, 1290-91 (S.D. Fla. 2014) (“[i]n some circumstances, a housing provider that refuses to make a decision could be found to have constructively denied the request by ‘stonewalling' and short-circuiting the process”) (quoting Overlook Mut. Homes, Inc. v. Spencer, 415 F. App'x 617, 622 (6th Cir. 2011)).

         Cause 1 of the SAC appears to allege conduct that would support a discrimination claim under 42 U.S.C. § 3604(f)(2)(A), and no defendant has argued to the contrary. However, Bisson argues, correctly, that Lath has failed to state a FHA accommodation claim against him. As the Association's attorney, Bisson was never in a position to grant Lath an exception to the “no dog” policy in the first instance, which means that he cannot be liable for any violation of § 3604(f)(2)(A). The only defendant in a position to provide Lath with relief from the “no dog” policy was the Association itself. Accordingly, while Lath has stated a claim under § 3604(f)(2)(A), the only defendant on that claim is the Association.

         As this case moves forward, Lath's § 3604(f)(2)(A) claim against the Association claim shall be referred to as Count 2.

         c. Retaliation

         Causes 2, 3, 7, and 13 of the SAC use the term “retaliation.” Causes 5 and 6 charge defendants with intimidating and threatening various persons for participating in activities protected under the FHA. Cause 8 charges defendants with making “threats and causing bodily injury, thereby causing death, to persons participating lawfully in speech or peaceful assembly and denial of such opportunities.” SAC (doc. no. 48-1) 36. Causes 9 and 12 charge defendants with coercion, intimidation, and interference in violation of 42 U.S.C. § 3617, which is the FHA retaliation provision. Those nine retaliation claims, in turn, appear to have their origin in Count 9 of Lath's FAC. In the SAC, Lath alleges that because he filed a discrimination claim against Mills, Grandmaison, and the Association's board of directors with the federal Equal Employment Opportunity Commission (“EEOC”) and the New Hampshire Commission for Human Rights (“HRC”), [7] he was subjected to the following acts of retaliation:

a. Mullen “surreptitiously installed cameras, capable of capturing both images and sound, inside Plaintiff's residence, and/or its curtilage, ” SAC (doc. no. 48-1) ¶ 33;
b. Mullen, Morey, Sample, and Grandmaison filed baseless claims against him with various law enforcement and other public agencies, see Id. ¶ 38;
c. Morey, Taylor, Cheryl Vallee, and Klardie mishandled his request to keep an emotional support dog; see Id. ¶¶ 42-49
d. Morey, Taylor, Cheryl Vallee, Perry Vallee, Bisson, Sample, and Grandmaison demanded a copy of the key to his residence, see Id. ¶ 69;
e. the same seven defendants refused to service the heat to his unit in 2015, see Id. ¶ 72;
f. the same seven defendants refused to accept packages or mail addressed to him, see Id. ¶ 74;
g. the same seven defendants propounded fines against him for violating the Association's rules, see Id. ¶ 75;
h. the same seven defendants failed to take prompt action to remedy the FHA violations he had suffered, see Id. ¶ 76; and
i. Sample assaulted him on May 26, 2016, see Id. ¶ 80.

         In the principal motion to dismiss the FAC, defendants object to the manner in which Lath presented Count 9, but they do not argue for the dismissal of the claims asserted therein. However, there is a matter that be must addressed before Lath may proceed with his retaliation claims.

         The court of appeals for this circuit has not described the contours of an FHA retaliation claim. But Judge Woodlock has:

Section 3617 of the FHA further provides that a person cannot “coerce, intimidate, threaten, or interfere with any person in the exercise or enjoyment of” rights protected under the FHA. 42 U.S.C. § 3617. Actions under this section require the plaintiff to make the following showing: (1) the plaintiff is a member of an FHA-protected class; (2) the plaintiff exercised a right protected by §§ 3603-06 of the FHA, or aided others in exercising such rights; (3) the defendants' conduct was at least partially motivated by intentional discrimination; and (4) the defendants' conduct constituted coercion, intimidation, threat, or interference on account of having exercised, aided, or encouraged others in exercising a right protected by the FHA. King v. Metcalf 56 Homes Ass'n, Inc., 385 F.Supp.2d 1137, 1142-43 (D. Kan. 2005).

S. Middlesex Opp. Council, Inc. v. Town of Framingham, 752 F.Supp.2d 85, 95 (D. Mass. 2010) (emphasis added).[8] As for the third element of a § 3617 claim, Judge Woodlock further explained that “in connection with a disparate treatment claim under Section 3604 and under Section 3617, there must be sufficient evidence for a reasonable jury to conclude that the Defendants were motivated by a protected characteristic in performing the challenged conduct.” Id. at 95-96 (emphasis added, internal quotation marks omitted).

         Neither the FAC nor the SAC has much to say about animus related to Lath's protected characteristics, i.e., his race and/or national origin. To be sure, plaintiff alleges that Mills once called him a “sand nigger.” But plaintiff does not allege that Mills engaged in any of the conduct underlying his retaliation claim, and he makes no allegations of animus on the part of any of the defendants who did engage in the conduct he calls retaliatory. Plaintiff's inadequate allegations of animus would appear to be fatal to his retaliation claims. Moreover, sua sponte dismissal can be appropriate “where ‘it is crystal clear that the plaintiff cannot prevail and that amending the complaint would be futile.'” Garayalde-Rijos, 747 F.3d at 23 (quoting Chute v. Walker, 281 F.3d 314, 319) (1st Cir. 2001); citing Gonzalez-Gonzalez v. United States, 257 F.3d 31, 37 (1st Cir. 2001)). While the court harbors concerns over the allegations of animus in the SAC, the better course of action with respect to plaintiff's retaliation claims under § 3617, i.e., Causes 2, 3, 5, 6, 7, 8, 9, 12, and 13 of the SAC, is to give him an opportunity to show cause why those claims should not be dismissed for failing to allege that “defendants' conduct was at least partially motivated by intentional discrimination.” S. Middlesex, 752 F.Supp.2d at 95. At the end of this order, the court will explain how, precisely, plaintiff must go about showing cause. If he is able to do so, then he will be allowed to continue pursuing his retaliation claims. If he declines to show cause, or is unable to do so, then those claims will be dismissed.

         As this case moves forward, Lath's nine § 3617 retaliation claims shall be referred to as Counts 3(a)-(i).

         d. Discriminatory Preference

         Cause 10 of the SAC is captioned “Unlawful Representation by Printing and Publishing a Notice and Statement that Indicates a Preference for ‘True Service Dogs.'” Doc. no. 48-1, at 36. The FAC does not include a separate claim for “unlawful representation.” However, both the FAC and the SAC include this paragraph:

Defendants engaged in a discriminatory practice by printing, or publishing, or caus[ing] to be made, printed, or published any notice, statement, or advertisement, with respect to the sale or rental of a dwelling, or provision of its services or facilities, in connection with this dwelling, that . . . indicate preference, limitation, or discrimination, based on handicap or an intention to make any such preference, limitation, or discrimination which were published by Defendants in a periodic newsletter, that state a preference for “real service dogs” only.

Doc. no. 19 ¶ 27 (FAC); doc. no. 48-1 ¶ 27 (SAC). In his SAC, Lath elaborates: “Defendants have only allowed ‘true service dogs' on property. Defendants made it clear in a summer newsletter publication.” Id. ¶ 156.[9] Neither the principal motion to dismiss the FAC nor the ten defendants' objection to Lath's motion to amend the FAC makes any specific mention of the claim asserted in Cause 10, but the ten defendants do argue, generally, that Cause 10 does not state a claim upon which relief can be granted. The court does not agree.

         The FHA includes a provision which makes it unlawful for a person

[t]o make, print, or publish, or cause to be made, printed, or published any notice, statement, or advertisement, with respect to the sale or rental of a dwelling that indicates any preference, limitation, or discrimination based on race, color, religion, sex, handicap, familial status, or national origin, or an intention to make any such preference, limitation, or discrimination.

42 U.S.C. § 3604(c). The court of appeals has acknowledged that “[t]here is not much case law under the [FHA] in this circuit.” Astralis, 620 F.3d at 66. Indeed, in Langlois v. Abington Housing Authority, a case that involved a claim that a local housing authority published an advertisement that indicated racial preferences, Judge Gertner looked outside the circuit to find the elements of a claim under § 3604(c):

[O]ther courts have construed the requirement in § 3604(c) as follows: the standard for a § 3604(c) violation is whether “an ad for housing suggests to an ordinary reader that a particular race is preferred or dispreferred for the housing in question.” Ragin v. New York Times Co., 923 F.2d 995, 999 (2d Cir. 1991) (citing United States v. Hunter, 459 F.2d 205, 215 (4th Cir. 1972) and Spann v. Colonial Village, Inc., 899 F.2d 24 (D.C. Cir. 1990)); see also Jancik v. Dep't of Housing & Urban Devel., 44 F.3d 553, 556 (7th Cir. 1995) (“Significantly, no showing of a subjective intent to discriminate is . . . necessary to establish a violation of [§ 3604(c)].”); see also Ragin, 923 F.2d at 1000.

234 F.Supp.2d 33, 78-79 (D. Mass. 2002).

         While the statements in Langlois appeared in advertisements and other publications intended to attract applicants to Section 8 rental assistance programs, courts have entertained § 3604(c) claims based upon regulations published by entities such as the Association. See, e.g., Fair Housing Ctr. of the Greater Palm Beaches, Inc. v. Sonoma Bay Cmty. Homeowners Ass'n, Inc., 136 F.Supp.3d 1364, 1368 (S.D. Fla. 2015) (condominium rules alleged to discriminate against children); Llanos v. Estate of Cohelo, 24 F.Supp.2d 1052, 1060 (E.D. Cal. 1998) (apartment complex rules that discriminated against children). In light of cases such as Fair Housing Center, and the court's obligation to construe plaintiff's complaint liberally, see Erickson, 551 U.S. at 94, the court concludes that plaintiff has stated a claim upon which relief can be granted based on the publication of an item in the Oak Brook newsletter stating that when considering requests for exceptions to the Association's “no dog” policy, the Association prefers to grant such exceptions to residents who need “true service dogs, ” which could be construed as a preference for unit owners with handicaps that require service dogs over unit owners with handicaps that require emotional support dogs.

         As this case moves forward, Lath's § 3604(c) claim shall be referred to as Count 4.

         e. ANSI Compliance

         Cause 11 of the SAC is captioned “Non-compliance with ANSI A117.1 Sec 804(f)(3)(C)(iii).” Doc. no. 48-1, at 36. The FAC does not include a separate claim based upon ANSI 117.1, but both the FAC and the SAC include this paragraph:

Defendants engaged in discriminatory practices, by being non-compliant with the appropriate requirements of the American National Standard for buildings and facilities providing accessibility and usability for physically handicapped people (commonly cited as “ANSI 117.1”).

Doc. no. 19 ¶ 26 (FAC); doc. no. 48-1 ¶ 26 (SAC). However, neither the 112 paragraphs of general allegations that precede Cause 11 in the SAC nor the 186 paragraphs of factual allegations that follow Cause 11 say anything further about ANSI compliance.[10] Neither the principal motion to dismiss the FAC nor the ten defendants' objection to Lath's ...

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