Opinion
Civil Action 2:22-cv-01263
07-27-2023
ALYSSIA GLAGOLA, Plaintiff, v. WALTER MACFANN, et al, Defendants
J. Nicholas Ranjan, Judge
REPORT AND RECOMMENDATION ON DEFENDANTS' MOTION TO DISMISS
ECF NO. 24
LISA PUPO LENIHAN, MAGISTRATE JUDGE
For the reasons that follow, it is respectfully recommended that Defendants' Motion to Dismiss, ECF No. 24, be granted. More particularly, it is recommended that Plaintiff's two Federal statutory causes of action be dismissed with prejudice for failure to state a claim as a matter of law and that the Court decline to exercise supplemental (here pendent) jurisdiction over the State law claims asserted.
I. PROCEDURAL AND FACTUAL HISTORY
Plaintiff's Amended Complaint, ECF No. 11, was filed on September 9, 2022. Count I of Plaintiff's Amended Complaint alleges that Defendant Walter MacFann, identified as her “landlord”, violated the Federal Fair Housing Act, 42 U.S.C.§ 3613, by “committing discriminatory housing practices” against her, while Count II alleges that he violated the Federal Trafficking Victims Protection Act, 18 U.S.C. §1595, by subjecting her to “forced labor” under § 1589 and “sex trafficking” under § 1591. These counts further assert vicarious liability on the part of additional Defendants Tri-County Realty Associates, L.P. (“TCRA”), identified as the contractual lessor of the rental property, and AMW Consulting, LLC (“AMW”), identified as TCRA's general partner. Plaintiff also asserts seven State law counts: Assault, Battery, Intentional Infliction of Emotional Distress, False Imprisonment, Trespass, Breach of the Covenant of Quiet Enjoyment and, as against only TCRA and AMW, negligence.
This followed the Court's grant of Plaintiff's counsel's request that the initial Complaint be stricken due to his erroneous attachment of privileged material.
Plaintiff later explains in Count III that TCRA is vicariously liable for MacFann's actions because he “acted as rental agent for the property.” ECF No. 11 at 6.
In preface to strikingly sparse Counts, the Amended Complaint alleges that Plaintiff left her boyfriend with her young son, little money and nowhere to go. She was introduced to MacFann, “a local real estate agent and investor” who “leased” her a home but “[u]nlike most landlords” wanted sex rather than rent. MacFann then “used Glagola's vulnerabilities to coerce her into a month's long sexual relationship”. ECF No. 11 at 1. Plaintiff then alleges that she signed a lease with TCRA, as her landlord, and that MacFann “allowed” Plaintiff to rent the home “for a month for cleaning the property without paying full rent.” Id. at 2.
As Defendants observe, the Amended Complaint is completely devoid of any time reference for any allegation. ECF No. 25 at 7-8. The Court notes that Defendants are presumably aware of the period of Plaintiff's tenancy in the subject rental and disagrees with their assertion that “this deficiency alone . . . warrants dismissal”. Cf. ECF No. 27 at 1-2 (citing Davis v. Abington Meml. Hosp., 765 F.3d 236, 242 (3d Cir. 2014) (requiring sufficient time/hours detail to maintain an FSLA overtime wage case while disavowing broad applicability of an exact dates and times pleading requirement)). Compare ECF No. 26 at 3-4. It further notes that one text image within the complaint appears to be dated early April 2020. ECF No. 11 at 4. Were the case not otherwise subject to dismissal Defendants would have an opportunity to explore/discover and raise any statutory time bars thereafter. Cf. id. at 3.
The address suggests this “home” was a house as opposed to, e.g., an individual unit in a rental apartment building. The assertion that MacFann was Plaintiff's landlord is unsupported and contradicted.
When she was unable to pay her rent thereafter, MacFann “explain[ed] that he would pay Plaintiff's rent in exchange for sex.” Id. at 3. Owing to her personal and economic circumstances (i.e., her perceived absence of choice), Plaintiff acquiesced. Plaintiff then began to abuse alcohol, and MacFann began to not only demand sex for payment but to become angry when he suspected she had “male visitors” or had “gone on dates” (once sending her a photograph of a car parked in her driveway); sent unwanted sexual texts/messages; threatened her with homelessness and physically threatened her against ending their sexual relationship (once with a screwdriver and once pulling her by her clothes); and let himself into her home without notice or consent, including late at night. Id. at 3-4. MacFann implied he had a connected/influential position in the community and that a complaint against him “would not be believed.” When Plaintiff sought professional (substance use/mental health) treatment, “she was able to break off the relationship with MacFann and leave the property.” Id. at 4-5. There follows Plaintiff's two Federal claims (which include requests for punitive damages) and seven State law claims. Id. at 5-11.
Defendants' Motion to Dismiss and Brief in Support, ECF Nos. 24 and 25, were filed in early December, 2022. Plaintiff's Response in Opposition and Defendants' Reply were filed at ECF Nos. 26 and 27, respectively, and the issues raised are ripe for disposition.
The Court notes that although Defendants' Motion and accompanying Brief request dismissal of this action, they omit substantive discussion of several of Plaintiff's State law claims. ECF No. 25 at 13-15. Several such claims appear implausible, if not frivolous. See, e,g,, ECF No. 26 at 11 (asserting claims for false imprisonment where by grabbing and pulling Plaintiff, MacFann “necessarily held her against her will, falsely imprisoning her”). Moreover, the Court need not assess the individual State law counts in the absence of a maintainable Federal claim. Defendants' counsel are nonetheless encouraged - as a matter of future professional practice - to provide responsive statements to all claims in an action for which they move for dismissal.
II. STANDARD OF REVIEW
The United States Court of Appeals for the Third Circuit summarized the standard to be applied in deciding motions to dismiss filed pursuant to Rule 12(b)(6):
Under the “notice pleading” standard embodied in Rule 8 of the Federal Rules of Civil Procedure, a plaintiff must come forward with “a short and plain statement of the claim showing that the pleader is entitled to relief.” As explicated in Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), a claimant must state a “plausible” claim for relief, and “[a] claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” The “[f]actual allegations must be enough to raise a right to relief above the speculative level,” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007), and a plaintiff must “put forth allegations that raise a reasonable expectation that discovery will reveal evidence of the necessary element.” Fowler, 578 F.3d at 213 (quotation marks and citations omitted); see also Covington v. Int'l Ass'n of Approved Basketball Officials, 710 F.3d 114, 117-18 (3d Cir. 2013); Thompson v. Real Estate Mortg. Network, 748 F.3d 142, 147 (3d Cir. 2014).
III. ANALYSIS
As noted above, Counts I and II allege violations of the Federal Fair Housing Act, 42 U.S.C.§ 3613 (the “FHA”) and the Federal Trafficking Victims Protection Act, 18 U.S.C. §1595 (the “TVPA”), respectively.
Fair Housing Act
First, the FHA makes it unlawful for property owners, landlords and by extension those acting within the scope of their role as agents, to “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 . . . sex.” 42 U.S.C. § 3604(b). See also Burrage v. United States, 571 U.S. 204, 213 (2014) (holding this indicates “but for” causality). And Section 3613 of the FHA extends its protections from receiving different/less favorable housing availability, terms, or services to both quid pro quo (e.g., rental availability or terms linked to/exchanged for sex or sexual considerations) and “hostile housing environment” harassment. ECF No. 25 at 1517; ECF No. 27 at 7-10.
Although Plaintiff's Response in Opposition also asserts liability under the FHA's provisions against discriminatory statements under Section 3604(c), the Amended Complaint makes no allegation of discriminatory statements made (nor any indication of a preference/dispreference toward a protected group) with respect to/by one engaged in the rental of a dwelling as contemplated by the Act. Cf. ECF No. 26 at 13-14; ECF No. 27 at 9-10.
The Amended Complaint, however, neither alleges nor suggests that the availability of Plaintiff's lease with TCRA nor its terms or provision of services were conditioned on, or severely or pervasively adversely affected/influenced by (related to), MacFann's improper conduct, an essential element to a sexual harassment FHA claim. Cf., e.g., Fox v. Gaines, 4 F.4th 1293, 1294 (11th Cir. 2021) (FHA sexual harassment claim actionable where sexual favors expressly sought for rental of available property and reduced rent thereafter, followed by fraudulent violation notices and fraudulent eviction notice after rental was paid); Kruger v. Cuomo, 115 F.23d 487, 489 (7th Cir. 1997) (quid pro quo case alleging landlord's aggressive solicitations of sex for reduction in rental, followed by impositions of additional fees, repair charges and other actions adverse to leasehold). Rather, the coercive power of MacFann's alleged demands derived from his ability and threats to stop personally “pay[ing] Plaintiff's rent in exchange for sex”. Plaintiff does not allege that her lease contract was conditioned on those demands. She does not allege that its terms (e.g., rental due to TCRA) were different or changed, or that leasehold services (e.g., necessary repairs) were refused, or that her leasehold was withheld/revoked (e.g., by action for retaliatory eviction) in consequence of MacFann's sexual harassment. That is, the Amended Complaint fails to ground a claim that MacFann's assertedly opportunistic, immoral and perhaps otherwise actionable misconduct came within the discriminatory treatment scope of the fair housing protections of the FHA. ECF No. 25 at 8-12; ECF No. 27 at 7-8.
Plaintiff alleges that MacFann weighted this coercive power by brandishing his community status. ECF No. 26 at 3 (reiterating allegation that “MacFann told Glagola that he had everyone ‘in his pocket'” and she would not be believed); id. at 13 (“When Glagola attempted to break it off, MacFann threatened her, telling her that he had the authorities in ‘his pocket.'”). The Amended Complaint makes no allegation that he did so by threatening or taking action in his capacity as TCRA's rental agent to adversely affect the continuation, terms or services of her leasehold. In other words, to the extent agency is adequately alleged, there is no allegation that agency was exercised to facilitate submission or retaliate refusal of MacFann's sexual importuning and coercion.
Nor does she allege that her landlord, TCRA, was aware of, ratified or failed to correct MacFann's sexual harassment.
Federal Trafficking Victims Protection Act
Second, the statutory provisions contained in the TVPA at Sections 1589, Forced Labor, and 1591, Sex Trafficking of Children or by Force, Fraud or Coercion, are generally directed -as their titles suggest - to (a) forced work/involuntary servitude (such as enslavement-like conditions and abuse of e.g., immigrant/undocumented or otherwise unprotected peoples) and (b) commercial sex trafficking of children or in other specified circumstances. ECF No. 25 at 1-12; ECF No. 27 at 3-4. The reach of neither is so broad as to extend to the “rent payment in exchange for sex” nature of the individual parties' transactions/relationship (whether such funds MacFann's alleged admonition that Plaintiff “need[ed] to call [him] or [would] be homeless” - a plausible consequence of his withholding the funds she required to meet her lease obligations - is not analogous to FHA cases in which a landlord/agent invoked eviction proceedings or an oppressor threatened deportation. Cf. id. at 6 (alleging abuse of legal process). Cf. also ECF No. 11 at 4 (text message image reading “sex or promissory note which one do you wanna do”). were paid by MacFann directly to Plaintiff or to the rent due on her housing lease with TCRA). The Amended Complaint's allegations regarding Plaintiff's (a) one month cleaning of her rented premises in exchange for a rental payment reduction by MacFann and (b) sexual services to MacFann thereafter, do not come within the statutory provisions of the TVPA (or their intended application by way of, e.g., analogous cases). To the contrary, Plaintiff describes constraint by circumstances (domestic hardships, voluntary housing displacement, poverty, unemployment, a young son), of which MacFann took advantage, but which were independent of his conduct.She does not describe constraints of physical or psychological confinement approaching enslavement or other conditions of “forced labor” (domestic or sexual), or sexual “trafficking”. See ECF No. 25 at 11-12; ECF No. 27 at 3-4.
Id. at 3-4 (distinguishing Martinez-Rodriguez v. Giles, 31 F.4th 1139, 1154 (9th Cir. 2022), a bait-switch TVPA case in which Mexican veterinarians/animal specialists were forced to remain as manual laborers at dairy farm and threatened with possession-less deportation). Although Plaintiff asserts a civil cause of action under Section 1595 for sex trafficking as well, the fundamental element of trafficking victimization is patently absent. Cf. ECF No. 26 at 5-6. See also ECF No. 27 at 4 (distinguishing other cases of extreme mistreatment to compel submission to forced labor).
“MacFann used Glagola's economic vulnerability and desire to protect her son to coerce her into an unwanted sexual relationship”. ECF No. 26 at 12.
For these reasons, Plaintiff's observation that sex can be a form of labor within the Forced Labor prohibitions of Section 1589 mises the mark. ECF No. 26 at 6-7.
Exercise of Supplemental Jurisdiction
Although when all Federal claims are dismissed prior to trial, the Court retains jurisdiction to hear State law claims, in its discretion it should decline to exercise supplemental jurisdiction in the absence of extraordinary circumstances (such as exceptional considerations of economy, convenience or fairness). 28 U.S.C. §1367(c). See also Walter v. Pereira, 995 F.Supp.2d 437, 445 (W.D. Pa. 2014); Hedges v. Movsco, 204 F.3d 109, 123 (3d Cir. 2000). Here, no such considerations provide an affirmative justification for maintaining jurisdiction over Plaintiff's State law claims. Accordingly, the Court should dismiss those claims without prejudice for want of jurisdiction. See e.g., Lang v. Armstrong Co.,189 F.Supp.3d 502, 212 (W.D. Pa. 2016).
IV. CONCLUSION
The Court sympathizes with Plaintiff's personal hardships, including the abusive misconduct allegedly inflicted by MacFann. However, the circumstances in the Amended Complaint are insufficient to state a claim under either Federal Act cited. And although the factual allegations may sufficiently state one or more of the State law claims alleged, in the absence of a Federal claim the Court further concludes in its discretion that it should decline to exercise supplemental (here pendent) jurisdiction.
For the foregoing reasons, it is respectfully recommended that the Defendants' Motion to Dismiss, ECF No. 24, be GRANTED and the Federal claims of Counts I and II dismissed with prejudice, with Plaintiff's State law claims being dismissed without prejudice to their refiling in State court subject to all good faith requirements upon both Plaintiff and her counsel.
In accordance with the Federal Magistrate Judge's Act, 28 U.S.C. §636(b)(1)(B) and (C), and Rule 72.D.2 of the Local Rules of Court, the parties are allowed fourteen (14) days from the date of service of this Report and Recommendation to file written objections thereto. Any party opposing such objections shall have fourteen (14) days from the date of service of objections to respond thereto. Failure to file timely objections will constitute a waiver of any appellate rights.