United States District Court, D. New Hampshire
MCCAFFERTY UNITED STATES DISTRICT JUDGE.
case now consists of seven claims against three
defendants. Before the court is a motion for summary
judgment on Counts 1, 2, and 13. Oak Brook Condominium
Owners' Association (“the Association”)
objects. For the reasons that follow, Lath's motion for
summary judgment is denied.
Summary Judgment Standard
judgment is appropriate when the record shows that
‘there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of
law.'” Walker v. President & Fellows of
Harvard Coll., 840 F.3d 57, 61 (1st Cir. 2016) (quoting
Farmers Ins. Exch. v. RNK, Inc., 632 F.3d 777, 782
(1st Cir. 2011); citing Fed.R.Civ.P. 56(a)). When a court
considers a motion for summary judgment, “[t]he
evidence . . . must be viewed in the light most favorable to
the nonmoving party . . . and all reasonable inferences must
be taken in that party's favor.” Harris v.
Scarcelli (In re Oak Knoll Assocs., L.P.), 835 F.3d 24,
29 (1st Cir. 2016) (citing Desmond v. Varrasso (In re
Varrasso), 37 F.3d 760, 763 (1st Cir. 1994)).
has moved for summary judgment on three of his seven claims.
The court considers each in turn.
order dated August 8, 2017, document no. 205, Count 1 was
dismissed from this case. As a consequence, as to Count 1,
Lath's motion for summary judgment is denied as moot.
is a claim against the Association, under 41 U.S.C. §
3604(f)(2)(A), for handicap based discrimination resulting
from the Association's purported constructive failure to
allow Lath to have an emotional support dog. Lath is not
entitled to judgment as a matter of law on Count 2.
to make a reasonable accommodation for a person's
handicap can be an unlawful housing practice under the Fair
Housing Act. See Astralis Condo. Ass'n v. Sec'y,
HUD, 620 F.3d 62, 67 (1st Cir. 2010).
To establish a prima facie case of failure to accommodate
under the [Fair Housing Act], a claimant must show that he is
handicapped within the purview of 42 U.S.C. §
3602(h) and that the party charged knew or should reasonably
have known of his handicap. DuBois v. Ass'n of
Apart. Owners of 2987 Kalakaua, 453 F.3d 1175,
1179 (9th Cir. 2006); cf. Higgins v. New Balance Ath.
Shoe, Inc., 194 F.3d 252, 264 (1st Cir. 1999)
(enunciating similar prima facie case requirement in claims
brought under the ADA). Next the claimant must show that he
requested a particular accommodation that is both reasonable
and necessary to allow him an equal opportunity to use and
enjoy the housing in question. Bryant Woods Inn, Inc. v.
Howard Cnty., Md., 724 F.3d 597, 603 (4th Cir. 1997);
cf. Reed v. LePage Bakeries, Inc., 244 F.3d 254, 261
(1st Cir. 2001) (“[T]he ADA's reasonable
accommodation requirement usually does not apply unless
‘triggered by a request' from the employee.”)
(citation omitted). Finally, the claimant must show that the
party charged refused to make the requested accommodation. 42
U.S.C. § 3604(f)(3)(B); Shapiro v. Cadman Towers,
Inc., 51 F.3d 328, 336 (2d Cir. 1995).
Astralis, 620 F.3d at 67.
it is undisputed that on October 23, 2015, Lath asked the
Association for a waiver of its no pets policy so that he
could have an emotional support dog. It is also undisputed
that on January 6, 2016, approximately 75 days after Lath
made his request, the Association gave him permission to have
an emotional support dog. Necessarily, Lath bases his claim