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Budd v. The Landings at Preserve

United States District Court, W.D. Michigan, Southern Division

December 2, 2019

DON R. BUDD, Plaintiff,

          Hon. Janet T. Neff


          SALLY J. BERENS U.S. Magistrate Judge

         This matter is before the Court on Defendant's Motion to Dismiss. (ECF No. 10.) Pursuant to 28 U.S.C. § 636(b)(1)(B), the undersigned recommends that Defendant's motion be granted.

         I. BACKGROUND

         Plaintiff Don Budd filed a pro se complaint alleging that Defendant The Landings at the Preserve violated the Fair Housing Act (FHA), 42 U.S.C. § 3604, by discriminating against him in the provision of services and facilities. Budd alleges that he is disabled because he is deaf, or hearing impaired, and this is the basis for Defendant's discriminatory treatment. (ECF No. 1 at PageID.1-2.)

         Budd claims discrimination in three respects. First, he alleges that, since 2008, when he learned that Defendant's predecessor was installing washers and dryers in the units at The Landings, he requested that a washer and dryer be installed in his unit. His request was denied, and “[e]ach year a different reason was given as to why no machine was delivered.” (Id. at PageID.2.) On April 8, 2019, Defendant sent Budd an email offering to allow Budd to relocate to an apartment with a washer and dryer. Defendant informed Budd that two comparable apartments would soon be available and offered to waive the application and transfer fees and to give Budd a $300 credit towards his move-in costs. Budd declined the offer. (Id. at PageID.3; ECF No. 1-1 at PageID.10-11.) In 2019, Budd filed a formal complaint with the “FHEO in Chicago” and his complaint was referred to the Michigan Department of Civil Rights (MDCR). The MDCR closed Budd's case on June 29, 2019 due to “insufficient evidence to proceed, ” and because “[t]he respondent has also taken adjustive action.” (ECF No. 1 at PageID.2; ECF No. 10-1 at PagID.42.) On June 4, 2019, prior to the closure, an MDCR investigator informed Budd that: (1) two non-disabled tenants in the building did not have washers and dryers in their apartments; (2) it was not unreasonable for the landlord to discontinue the washer and dryer program because it was too costly to maintain; (3) the previous landlord started the program and had installed washers and dryers without permits; (4) it was not unreasonable for Defendant to offer Plaintiff another apartment that had a washer and dryer; (5) Defendant provided a legitimate, nondiscriminatory reason as to why Budd's apartment did not have a washer and dryer; and (6) the MDCR found no evidence that Defendant did not provide Budd a washer and dryer because of his disability. (ECF No. 1-1 at PageID.12.)

         Next, Budd alleges that on July 2, 2018, he requested Defendant to repair plaster around the main window in his living room. Budd waited three weeks, but no one came to fix the window. The property manager told him she forgot to prepare a work order. Budd waited another three weeks but received no service. The maintenance man finally arrived after Budd threatened legal action. However, it took an additional three weeks to complete the job. (ECF No. 1 at PageID.3-4.)

         Finally, Budd alleges that on May 28, 2019, he requested emergency maintenance service for a broken water heater that was leaking water. The on-call maintenance man arrived and shut off the water and started a dehumidifier. Budd had to wait until the next day for a new water heater. As of June 12, 2019, the workers had not been back to pick up the dehumidifier or to remove the mold from the carpet. (ECF No. 1 at PageID.4.)


         Defendant moves for dismissal pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim. Because Defendant filed its answer on July 18, 2019 (ECF No. 7), a motion to dismiss is not the proper vehicle to test the legal sufficiency of the complaint.[1] Defendant's post-answer motion is thus “an untimely dispositive pleading.” Fowler v. Thomas Nelson Publ'g, No. 08-12572, 2009 WL 612385, at *4 (E.D. Mich. Mar. 6, 2009) (citing 5B Wright & Miller, Federal Practice and Procedure § 1357, at 408 (3d ed. 2004)). Nonetheless, the Court may treat the motion as a motion for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). See Satkowiak v. Bay Cty. Sheriff's Dep't, 47 Fed.Appx. 376, 377 n.1 (6th Cir. 2002).

         In deciding a motion under Rule 12(c), a court applies the same standard applicable to motions under Rule 12(b)(6). Jelovsek v. Bredesen, 545 F.3d 431, 434 (6th Cir. 2008). A Rule 12(b)(6) motion to dismiss for failure to state a claim on which relief may be granted tests the legal sufficiency of a complaint by evaluating the assertions therein in a light most favorable to Plaintiff to determine whether they state a valid claim for relief. See In re NM Holdings Co., LLC, 622 F.3d 613, 618 (6th Cir. 2000).

         Pursuant to Federal Rule of Civil Procedure 12(b)(6), a claim must be dismissed for failure to state a claim on which relief may be granted unless the “[f]actual allegations [are] enough to raise a right for relief above the speculative level on the assumption that all of the complaint's allegations are true.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 545 (2007). As the Supreme Court more recently held, to survive a motion to dismiss, a complaint must contain “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009). This plausibility standard “is not akin to a ‘probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully.” If the complaint simply pleads facts that are “merely consistent with” a defendant's liability, it “stops short of the line between possibility and plausibility of ‘entitlement to relief.'” Id. As the Court further observed:

Two working principles underlie our decision in Twombly. First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. . . . Rule 8 marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions. Second, only a complaint that states a plausible claim for relief survives a motion to dismiss. . . . Determining whether a complaint states a plausible claim for relief will, as the Court of Appeals observed, be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. But where the ...

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