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Floyd v. Pem Real Estate Group

United States District Court, S.D. Alabama, Southern Division

January 9, 2019

B. RENEL FLOYD, Plaintiff,
v.
PEM REAL ESTATE GROUP, et al., Defendants.

          REPORT AND RECOMMENDATION

          KATHERINE P. NELSON, UNITED STATES MAGISTRATE JUDGE.

         This action is before the Court on the Brief in Support of Motion for Judgment on the Pleadings (Doc. 84) filed by Defendant HW Investco, LLC (“Investco”) to which the Plaintiff, B. Renel Floyd (“Floyd”) has filed a response in opposition (Doc. 86). This matter is now ripe for consideration and has been referred to the undersigned Magistrate Judge for entry of a report and recommendation under 28 U.S.C. § 636(b)(1)(B)-(C) and Federal Rule of Civil Procedure 72(b). Upon consideration, and for the reasons stated herein, the undersigned RECOMMENDS that Investco's Motion for Judgment (Doc. 84) be GRANTED.

         I. Procedural History

         On October 5, 2017 Floyd, a pro se litigant, filed a complaint in the United States District Court of the Southern District of Alabama, alleging violations of her constitutional rights pursuant to the Civils Rights Act of 1964; Fair Housing Act of 1968; and the Disability Act of 1990. (Doc. 1). In the complaint, Floyd listed PEM Real Estate Group, Jude Reynolds, Kristi Ridlon, Macy Proulx, Josh Ashcraft and Derrick Williams as Defendants. (Doc. 1). On October 12, 2017, Floyd filed a Motion for Leave to File an Amended Complaint. (Doc. 4). The Court found the Motion to be Moot, referencing Fed.R.Civ.P. 15(a)(1)(B), “a Plaintiff may amend his or her complaint “once as a matter of course within … 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier.” (Doc. 5). On December 14, 2017, Floyd filed her Amended Complaint with the Court, this time listing Investco as a Defendant. Investco filed a Brief in Support of Motion to Dismiss on December 26, 2017 (Doc. 27).

         Pursuant to a court order (Doc. 34), Floyd filed her Second Amended Complaint (Doc. 37), which is the operative complaint in this action. Investco, once again filed a Brief in Support renewing its Motion to Dismiss. (Doc. 46). Floyd filed a Response in Opposition on March 22, 2018 (Doc. 64) and Investco filed a Reply (Doc. 70) on March 26, 2018. On September 13, 2018 the Report and Recommendation was adopted, denying Investco's. (Doc. 79). On September 13, 2018, Investco filed an Answer to Floyd's Second Amended Complaint. Investco then filed a Brief in Support of Motion for Judgment on Pleadings on October 3, 2018. (Doc. 84). Investco moves for a judgment of the pleadings pursuant to Fed. R. Civ. P. Rule 12(c) listing five independent reasons. (Doc. 84).

         II. Standard of Review

         Pursuant to Fed.R.Civ.P. 12(c), a party may assert a motion for judgment on the pleadings, “after the pleadings are closed, but early enough not to delay trial, a party may move for judgment on the pleadings.” “Judgment on the pleadings is appropriate where there are no material facts in dispute and the moving party is entitled to judgment as a matter of law.” Canon v. City of W. Palm Beach, 250 F.3d 1299, 1301 (11th Cir. 2001)(citing Perez v. Wells Fargo N.A., 774 F.3d 1329, 1335 (11thCir. 2014). “In determine whether a party is entitled to judgment on the pleadings, we accept as true all material facts alleged in the non-moving party's pleading, and we view those facts in the light most favorable to the non-moving party.” See Hawthorne v. Mac Adjustment, Inc., 140 F.3d 1367, 1370 (11th Cir. 1998). “If a comparison of the averments in the competing pleadings reveals a material dispute of fact, judgment on the pleadings must be denied.” See Stanton v. Larsh, 239 F.2d 104, 106 (5th Cir. 1956). Generally, the Court may not consider matters outside the pleadings without converting the motion into a motion for summary judgment. Fed.R.Civ.P. 12(d).[1] On motion for judgment on the pleadings, the court considers the complaint, answers, and the exhibits thereto. The Court may consider documents attached to an answer of the documents attached to an answer if the documents are “(1) central to the Plaintiff's claim; and (2)undisputed, which in this context means that the authenticity of the document is not challenged.” Horsley v. Feldt, 304 F.3d 1125, 1134 (11th Cir. 2002); Grossman v. Nationsbank, N.A., 225 F.3d 1228, 1231 (11th Cir. 2000).

         III. Analysis

         1. Plaintiff's FHA claims between Investco & Jude Reynolds

         “Fair Housing Act imposes liability without fault upon employer in accordance with traditional agency principles, and thus it imposes vicarious liability upon corporation for unlawful acts of its employees.” Meyer v. Holley 123 S.Ct. 824, 825 (2003). Investco maintains that “other than reference to an alleged common owner, Plaintiff fails to allege any facts showing any relationship between Investco and ‘PEM Real Estate Group LLC.' ” (Doc. 84). Investco maintains that in order for a defendant to be vicariously liable for the discrimination, the defendant should have been an “an agent acting within the scope of its authority.” (Doc. 84).

         Although the guidelines of the FHA fails to mention vicarious liability, “an action brought for compensation by a victim of housing discrimination is, in effect, a tort action, … [a]nd the Court has assumed that, when Congress creates a tort action, it legislates against a legal background of ordinary tort-related vicarious liability rules…” Meyer v. Holley, 537 U.S. 280, 285, 123 S.Ct. 824, 154 L.Ed.2d 753 (2003). In order for vicarious liability to exist, an agency relationship must be established. “The test of agency is the right of control, whether exercised or not, and control must be proven, and proof of control requires more than proof of a mere right to determine if the person claimed to be an agent is conforming to the requirements of a contract.” Franklin v. Mitchell, 87 So.3d 573, 580 (Ala.Civ.App.2011). “For one to be an agent, the other party must retain the right to direct the manner in which the business shall be done, as well as the results to be accomplished, or in other words, not only what shall be done, but how it shall be done.” Id.

         “Under Alabama law, the test of agency is the right of control, whether exercised or not.” Brown v. Commercial Dispatch Publishing Co., 504 So.2d 245 (Ala.1987). “Agency is the fiduciary relation which results from the manifestation of consent by one person to another that they shall act on his behalf and subject to his control, and consent by the other so to act.” Rainey v. Aware Woman Center for Choice, Inc., 224 F.3d 1266, 1268 (11th Cir. 2000)(citing Haynes v. Wilder, 721 F.Supp.2d 1218, 1225 (M.D.Fla 2010)). In Haynes, the Plaintiff alleged that the Defendant, owner of an RV resort, was vicariously liable for the actions of the resort's Neighborhood Association. The court held that “the defendant remains vicariously liable for the discrimination of the Neighborhood Association only if the Neighborhood Association was an agent acting within the scope of its authority.” Id. at 1225. The court reasoned that there must be actual consent between the parties to form an agency and that mere association is insufficient.

         Investco maintains that Floyd failed to establish “an employment or agency relationship between Investco and Jude Reynolds, the only remaining individual defendant against whom Plaintiff has stated a FHA claim.” (Doc. 84). Floyd contends that “PEM Real Estate and HW Mobile Investco, LLC were made aware of Jude Reynolds's actions. Floyd's Second Amended Complaint, fails to plead plausible and sufficient facts to establish an agency relationship between Investco and Jude Reynolds. The complaint mentions PEM Real Estate and other defendants, however it fails to establish that Investco relinquished consent to Jude Reynolds, or that an agency/employee relationship existed. Floyd, contends that “as soon a PEM Real Estate Group employee became manager of Huntleigh Woods Apartments…Ms. Jude A. Reynolds became Property Manager in October 2015.” (Doc. 37 at 2).

         Floyd argues that an employment or agency relationship existed between Jude Reynolds and Investco “by default a result of her long-term employment at Huntleigh Woods Apartment…after having maintained employment through a number of changes in ownership which HW Mobile Investco, LLC was owner during the time period cited in my complaint.” Although it appears that Reynolds was an employee during Investco's ownership, Floyd makes specific references to Reynold's behavior while employed as a Property Manager by PEM Real Estate Group, noting that she “placed telephone calls to PEM Real Estate Group, including regional supervisors as instructed but calls either ...


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