Summary
holding that there was no standing where organization relied on "conjectural and hypothetical" testimony without specifics or evidence to show diversion of resources
Summary of this case from Greater New Orleans Fair Hous. Action Ctr., Inc. v. HotardOpinion
NO. 00-0624
June 25, 2001.
Before the Court are cross Motions for Summary Judgment filed by defendant Hotel Maison Pierre Lafitte, Ltd. ("Hotel Maison") (rec. doc. 46) and plaintiff Louisiana ACORN Fair Housing Organization ("ACORN") (rec. doc. 44). The motions were set for hearing on June 20, 2001 and were taken on the papers without oral argument. The Court has considered the pleadings, memoranda and relevant law and finds that defendant's motion shall be granted for the reasons that follow.
Procedural Background
Plaintiff ACORN, a nonprofit organization whose purpose is to promote fair housing in the state of Louisiana, filed suit on February 29, 2000 alleging violations of the Fair Housing Act, 42 U.S.C. § 3601, the Louisiana Open Housing Act, La.R.S. 51:2601, and the Thirteenth Amendment to the United States Constitution. The center of the suit is that each of the three named defendants discriminated against prospective buyers of timeshare interests at the Hotel Maison Pierre Lafitte in New Orleans, Louisiana. More specifically, plaintiff contends that the various defendants discriminated based upon national origin. Misnomers aside, plaintiff sued three distinct entities, JSN Marketing, Inc., Preferred Equities Corporation ("PEC"), and Hotel Maison Pierre Lafitte. On October 18, 2000 ACORN voluntarily dismissed its case against JSN Marketing (rec.doc. 26). On January 23, 2001, summary judgment was granted in favor of defendant PEC (rec.doc. 28). With respect to PEC's dismissal, this Court held that since Preferred Equities Corporation had no ownership interest in the Hotel Maison, it could not be liable for Hotel Maison's alleged discriminatory practices (rec. doc. 28).
The last remaining defendant, Hotel Maison filed the instant motion for summary judgment arguing that under Louisiana ACORN Fair Housing v. LeBlanc, 211 F.3d 298 (5th Cir. 2000), ACORN has no standing to bring this suit. In the event plaintiff is held to have standing, defendant contends that the undisputed facts demonstrate that ACORN has no cause of action under the Fair Housing Act. in response, ACORN states that the rule of law established in LeBlanc is much narrower than that advocated by Hotel Maison. As to the validity of its cause of action under the FHA, in its motion for summary judgment plaintiff points out that defendant's commissions structure and marketing strategy is evidence of discriminatory ammus and discriminatory effect under the FHA.
"Plaintiff admits that it has no cause of action under the Thirteenth Amendment and consents to dismissal of that claim. Opposition to Defendant's Motion for Summary Judgment at p. 2.
Factual Background
All salient facts with respect to accrual of this discrimination claim are disputed, however, the basic relationships are clear. As was set forth in a prior opinion issued by this Court, plaintiff is a nonprofit organization whose purpose is to promote fair housing in Louisiana. The Hotel Maison is an ownership resort located in New Orleans that sells time share interests. In order to sell its time share interests, Hotel Maison uses marketers to attract pedestrians and entice them to a guided tour of the Hotel Maison's time share units. Obviously, the purpose of these guided tours is persuade the prospective buyers to purchase a time share interest which can be used at the Hotel Maison or exchanged for use at another resort.
According to plaintiff, the marketers are instructed to solicit and refer only those tourists who meet certain qualifications. One of these qualifications is that the prospective buyers cannot be foreigners, with some exceptions. Plaintiffs Motion for Partial Summary Judgment, Statement of Facts ¶¶ 4-5. Defendant disputes this assertion and states that it has no qualifications for tours and that all interested persons are permitted to tour its facility. Defendant's Response to Plaintiffs Statement of Facts at ¶ 4. Defendant does admit that residents of the United States, Canada and the Virgin Islands received free gifts as an incentive to tour the facility but justifies such a practice based upon business realities that people from those areas are more likely to buy a timeshare interest than others. That said, Hotel Maison states that the most important criteria for receipt of the gift are income, possession of a credit card and registration at a local hotel.
Although the Hotel Maison states that it never received discrimination complaints, ACORN claims that it received numerous complaints in 1996, investigated those complaints and filed suit in early 2000. Plaintiffs Motion for Partial Summary Judgment, Statement of Fact ¶ 6. Despite the assertion that it received numerous complaints directed at the Hotel Maison, when specifically asked to name those who requested but were denied sales tours based upon national origin, ACORN's executive director did not provide any names but merely stated that "it is impossible to determine the number of people who have been victims. . ." See Plaintiff's Response to Defendant's First Set of Interrogatories, Nos. 4 and 5. In any event, according to its own estimates ACORN spent approximately eighteen hours investigating the complaint and sent two clandestime testers, posing as residents of Belgium and Switzerland, to elicit a tour offer. Apparently, each tester was asked "where they were from", and when they replied with their fictitious counties, they were told that no tours were available. With this background in mind the Court turns to the relevant legal standards.
Standard for Motion for Summary Judgment
Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment should be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). "An issue is material if its resolution could affect the outcome of the action." Daniels v. City ofArlington, Texas, 246 F.3d 500. 502 (5th Cir. 2001). The moving party bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the record which it believes demonstrate the absence of a genuine issue of material fact.Stults v. Conoco, 76 F.3d 651. 656, (5th Cir. 1996) (citation omitted). In reviewing the motion, the Court considers the record as a whole, disregarding evidence that the jury is "not required to believe." Thomas v. Great Atlantic and Pacific Tea Company, Inc., 233 F.3d 326, 329 (5th Cir. 2000). When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts. The nonmoving party must come forward with "specific facts showing that there is a genuine issue for trial." Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 588 (1986); Beck v. Texas State Board of Dental Examiners, 204 F.3d 629, 633 (5th Cir. 2000). Thus, where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no "genuine issue for trial." Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574. 588 (1986). Finally, the court notes that the substantive law determines materiality of facts and only "facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The court now turns to the merits of the arguments with these standards in mind.
Analysis
Defendant's primary argument is that ACORN should be dismissed for lack of standing because the plaintiff organization cannot prove that it suffered an injury in fact as required by Lujan v. Defenders of Wildlife, 504 U.S. 555, 112 S.Ct. 2130 (1992). As support, Hotel Maison relies on a recent Fifth Circuit case brought by the same plaintiff, which held that, in a case very similar to the one before this Court, that ACORN's injuries were hypothetical and insufficient to prove injury in fact. Plaintiff argues that defendant's reading of Fifth Circuit law is too limited and that the factual underpinnings of LeBlanc are distinguishable from the facts of this case. In essence, plaintiff claims that it has expended significantly more resources than it did in LeBlanc and thus should survive defendant's motion. Thus, the Court can resolve the standing issue by determining whether or not the facts and law ofLeBlanc apply to the matter at hand. Prior to delving into that case however, the Court will review certain general principles of standing.
It is well established that an organization can establish standing to safeguard its own organizational interest if it meets the same standing test that applies to individuals. Association of Community Organizations For Reform Now v. Fowler, 178 F.3d 350 (5th Cir. 1999) (citation omitted). However, "an abstract interest in an issue does not confer on an organization standing in its own right if it cannot show injury to some more specific interest." Wright, Miller Cooper, Federal Practice and Procedure: Jurisdiction 2d, § 323 1.9 at p. 605. To maintain constitutional standing, an organization must establish the following,
First, the plaintiff must have suffered an "injury in fact" — an invasion of a legally protected interest which is (a) concrete and particularized and (b) "actual or imminent, not 'conjectural' or 'hypothetical,' "Second, there must be a causal connection between the injury and the conduct complained of — the injury has to be "fairly . . . trace[able] to the challenged action of the defendant, and not . . . th[e] result [of] the independent action of some third party not before the court." Third, it must be "likely," as opposed to merely "speculative," that the injury will be "redressed by a favorable decision."Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 2136 (1992) (internal citations omitted). The United States Supreme Court has held that an organization suffers an injury in fact when the defendant's activities impede the organization's ability to provide counseling and referral services, as opposed to a simple setback to the organization's abstract social interests. See Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 102 S.Ct. 1114, 1125 (1982). However, it is important to note that the appeal in Havens was of a motion to dismiss, and that the Court based its holding upon the allegations in plaintiffs complaint, indeed, the Court admonished that "[o]f course, [plaintiff] will have to demonstrate at trial that it has indeed suffered impairment in its role of facilitating open housing before it will be entitled to judicial relief." Id. at 379 n. 21, 102 S.Ct. 1125 n. 21. In other words, an organization must show more than an interest in seeing the law obeyed; it must prove that "'discrete programmatic concerns are being directly and adversely affected' by the challenged action." National Taxpayers Union. Inc. v. U.S., 68 F.3d 1428, 1433 (D.C. Cir. 1995) (quoting American Legal Foundation v. F.C.C., 808 F.2d 84, 91 (D.C. Cir. 1987). As this case is before the Court on a motion for summary judgment as opposed to a motion to dismiss, the Court must look to the evidence, not merely the allegations, to determine if ACORN has standing.
In Louisiana ACORN Fair Housing v. LeBlanc, 211 F.3d 298 (5th Cir. 2000), the United States Court of Appeals for the Fifth Circuit elaborated upon the injury in fact requirement in a posture beyond the pleadings stage of litigation. The Court of Appeals stated that "the mere fact that an organization redirects some of its resources to litigation and legal counseling in response to actions or inactions of another party is insufficient to impart standing on the organization." Id. at 305 (citations omitted). Evidence that could vest an organization with standing would be in the nature of proof of a "drain on resources resulting from counteracting the effects of the defendant's actions."Id. (citation omitted). In LeBlanc the Court of Appeals looked to the trial testimony of ACORN's executive director. He was unable to mention specific projects put on hold while working on the case, could not describe how ACORN had to re-double its efforts to combat discrimination and was conjectural and hypothetical throughout his testimony. See id. at 305. Therefore ACORN had no standing. See also Arkansas ACORN Fair Housing v. Grevstone Development. Ltd., 160 F.3d 433 (8th Cir. 1998) (no standing when plaintiff presented no facts to quantify resources expended to counteract a single discriminatory advertisement).
In this case, ACORN has expended approximately eighteen hours in staff time, spent $12 for copying and supplies, $15 for postage, $120 for testing, paid court costs, and also claims $75,000 for frustration of mission. See Plaintiffs Answer to Defendant's Interrogatory No. 3. With respect to the Hotel Maison, the executive director of plaintiffs organization was unable to specify what efforts were made to remedy the particular defendant's allegedly discriminatory practices. See Karlson depo. at pp. 42-43. However, plaintiff does make the conclusory and unsupported allegation that it "has expended significant resources on its investigation and diverted resources." See Karlson Affidavit in support of Plaintiffs Motion for Summary Judgment. Plaintiffs allegations with respect to frustration of its mission are also quite speculative and unsupported by proof.
All of these figures are rough estimates as plaintiff kept no expense logs.
Plaintiff attempts to survive summary judgment by arguing that theLeBlanc plaintiff was unsuccessful because the Court of Appeals found that it only incurred litigation expenses, not pre-litigation investigative and remedial expenses. This Court finds that argument utterly unpersuasive. The LeBlanc court made no distinction between pre-litigation and post-litigation expenses. See also Louisiana ACORN Fair Housing v. Jaffe, 2000 WL 1277599 (E.D. La. 9/8/00) (finding no standing under LeBlanc where plaintiff conducted pre-litigation testing and investigation). To the contrary, the court recognized that prior to initiating suit, ACORN "conducted testing that confined. . . [the] allegation that [defendant] discriminated against prospective tenants based on race." LeBlanc, 211 F.3d at 300. What the Court of Appeals did find was that "[plaintiffs representative] neither mentioned any specific projects put on hold while working on. . .[the] case nor. . . described in any detail how ACORN had to re-double efforts in the community to combat discrimination." Id. at 305. In the present matter, ACORN is again unable to create a genuine issue of material fact as to a significant drain on its resources or its ability to promote fair housing. At most, it claims to have spent eighteen hours investigating the matter, but did not keep time sheets, sent two investigators to the area, but is not sure if they were paid or volunteer, and has not provided details with respect to how it counteracted Hotel Maison's activities or what other projects were diverted or abandoned in order to maintain the present suit. In all respects, ACORN's activities and allegations are as speculative as those in LeBlanc. As such plaintiff has no standing and cannot prosecute this lawsuit. See also Louisiana ACORN Fair Housing v. Jaffe, 2000 WL 1277599 (E.D. La. 9/8/00) (plaintiff had no standing when it could not prove that defendant's activities impaired its ability to provide counseling and referral services).
In light of this Court's finding with respect to the standing issue, the Court need not consider the substantive arguments under the federal and state housing laws. Accordingly,
IT IS ORDERED that defendant's Motion for Summary Judgment is GRANTED, and plaintiffs Motion for Partial Summary Judgment is DENIED.