United States District Court, N.D. Alabama, Northeastern Division
MEMORANDUM OPINION AND ORDER
C. BURKE UNITED STATES DISTRICT JUDGE.
Shahnaz Poursaied, filed this action pro se on
October 3, 2018, asserting claims against her landlord,
Reserve at Research Park LLC,  for violations of the Fair
Housing Act (FHA), 42 USC' 3604(f)(3)(B); Alabama Uniform
Residential Landlord Tenant Act (AURLTA),' 35-9A-101, et
seq., Ala. Code 1975; and invasion of privacy. (Docs. 1 &
5). The case currently is before the Court on defendant's
motion to dismiss pursuant to Federal Rules of Civil
Procedure 12(b)(1) and 12(b)(6). (Doc. 5). Plaintiff filed a
response on November 16, 2018. (Doc. 9). Upon review and for
the reasons stated herein, the Court concludes that the
Defendant's Motion to Dismiss (Doc. 5) is due to be
granted in part and denied in part.
STANDARDS OF REVIEW
Rule 12(b)(1) - Dismissal for Lack Of
Subject Matter Jurisdiction Federal district courts are
tribunals of limited jurisdiction, “‘empowered to
hear only those cases within the judicial power of the United
States as defined by Article III of the Constitution,'
and which have been entrusted to them by a jurisdictional
grant authorized by Congress.” University of South
Alabama v. The American Tobacco Co., 168 F.3d 405, 409
(11th Cir. 1999) (quoting Taylor v. Appleton, 30
F.3d 1365, 1367 (11th Cir. 1994)). Accordingly, an
“Article III court must be sure of its own jurisdiction
before getting to the merits” of any action. Ortiz
v. Fiberboard Corp., 527 U.S. 815, 831 (1999) (citing
Steel Co. v. Citizens for a Better Environment, 523
U.S. 83, 88-89 (1998)).
motion to dismiss a case for lack of subject matter
jurisdiction is governed by Federal Rule of Civil Procedure
12(b)(1). When ruling upon a Rule 12(b)(1) motion
asserting a lack of jurisdiction on the face of the
plaintiff's complaint, the court must consider the
allegations of the complaint as true. See Williamson v.
Tucker, 645 F.2d 404, 412 (5th Cir. 1981) (citations
omitted). On the other hand, “a ‘factual
attack' on subject matter jurisdiction
‘challenge[s] the existence of subject matter
jurisdiction in fact, irrespective of the pleadings, and
matters outside the pleadings, such as testimony and
affidavits are considered.'” Douglas v.
United States, 814 F.3d 1268, 1278 (11th Cir.
2016) (quoting In re CP Ships Ltd. Securities
Litigation, 578 F.3d 1306, 1311-12 (11th Cir. 2009),
abrogated on other grounds by Morrison v.
National Australia Bank Ltd., 561 U.S. 247 (2010))
(alteration in original).
Rule 12(b)(6) - Dismissal for Failure To
State A Claim Upon Which Relief Can Be Granted
Rule of Civil Procedure 12(b)(6) permits a party to move to
dismiss a complaint for “failure to state a claim upon
which relief can be granted.” Fed.R.Civ.P. 12(b)(6).
This rule must be read together with Rule 8(a), which
requires that a pleading contain only a “short and
plain statement of the claim showing that the pleader is
entitled to relief.” Fed.R.Civ.P. 8(a)(2). While that
pleading standard does not require “detailed factual
allegations, ” Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 550 (2007), it does demand “more than an
unadorned, the- defendant-unlawfully-harmed-me
accusation.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (citations omitted).
whenever matters other than the pleadings are presented to,
but not excluded by the district court when ruling upon a
defendant's Rule 12(b)(6) motion to dismiss a compliant
for failing to state a claim upon which relief can be
granted, the motion normally “must be treated as one
for summary judgment under Rule 56, ” and “[a]ll
parties must be given a reasonable opportunity to present all
the material that is pertinent to the motion.”
Fed.R.Civ.P. 12(d) (alterations supplied). In other words,
“[a] court is generally limited to reviewing what is
within the four corners of the complaint on a motion to
dismiss.” Bickley v. Caremark RX, Inc., 461
F.3d 1325, 1329 n.7 (11th Cir. 2006) (alteration supplied).
so, there are narrow exceptions to that general proposition.
Indeed, the Eleventh Circuit has held that a district court
“may consider a document attached to a motion to
dismiss without converting the motion into one for summary
judgment if the attached document is (1) central to the
plaintiff's claim and (2) undisputed.”
Day v. Taylor, 400 F.3d 1272, 1276 (11th Cir. 2005)
(emphasis supplied). The term “undisputed” is
defined as meaning that “the authenticity of the
document is not challenged.” Id.
the only document outside the allegations of plaintiff's
complaint and pleadings considered by this Court is the
Apartment Lease Contract which is central to the
plaintiff's claim and undisputed.
addition, parties who appear pro se are afforded a
leniency not granted to those who are represented by counsel.
Cf., e.g., Hughes v. Rowe, 449 U.S. 5, 9
(1980) (“It is settled law that the allegations of [a
pro se complaint filed by a state prisoner],
‘however inartfully pleaded,' are held to
‘less stringent standards than formal pleadings drafted
by lawyers.'”) (quoting Haines v. Kerner,
404 U.S. 519, 520 (1972)); Harmon v. Berry, 728 F.2d
1407, 1409 (11th Cir. 1984) (same); Woodall v. Foti,
648 F.2d 268, 271 (5th Cir. 1981) (“A pro se
complaint, however inartfully drafted, must be held to less
rigorous standards than the formal pleadings prepared by
lawyers and can only be dismissed for failure to state a
claim if it appears ‘beyond doubt that the plaintiff
can prove no set of facts in support of his claim which would
entitle him to relief.'”) (quoting
Haines). However, such leniency “. . . does
not give a court license to serve as de facto
counsel for a [pro se] party, see Hall v.
Bellmon, 935 F.2d 1106, 1109 (10th Cir.1991), or to
rewrite an otherwise deficient pleading [by a pro se
litigant] in order to sustain an action.” GJR
Investments, Inc. v. Cty. of Escambia, Fla., 132 F.3d
1359, 1369 (11th Cir. 1998) overruled on other grounds by
Ashcroft v. Iqbal, 556 U.S.1937 (2009). See also,
Pontier v. City of Clearwater, 881 F.Supp. 1565,
1568 (M.D. Fla.1995). Furthermore, a court treats as true
factual allegations, but it does not treat as true conclusory
assertions or a recitation of a cause of action's
elements. Iqbal, 556 U.S. at 681. A pro se
litigant “is subject to the relevant law and rules of
court including the Federal Rules of Civil Procedure.”
Moon v. Newsome, 863 F.2d 835, 837 (11th Cir. 1989),
cert. denied, 493 U.S. 863 (1989).
RELEVANT FACTS Plaintiff alleges that she
has been harassed and criminally tortured by noise since
2006; that she is controlled by neighbors through noise; that
the noise caused her to fall in 2017 resulting in injuries;
and that the noise caused her to lose her job and flee her
most recent apartment in North Carolina. (Doc. 1). In her
response to defendant's motion she summarizes noise
complaints and federal lawsuits that span three (3) prior
apartment complexes in the State of North
Carolina. (Doc. 9). Central to her claims in this
case are alleged warranties made by defendant that their
apartments are “. . . quiet . . .[and] sound
proof.” Id. As a result of this unwanted
torturous noise, plaintiff alleges that she has suffered
severe emotional damages in the amount of $ 300, 000.
Id. In its motion to dismiss, defendant states that
plaintiff makes “. . .no allegations about how this
Defendant is in violation of this statute [FHA] or how this
Defendant refused to make reasonable accommodations in rules,
policy, practice or service. . . [and fails to allege] . . .
how or why she is even protected by this statute.”
(Doc. 5). Defendant filed a copy of the lease agreement with
its motion. Id. It is undisputed that plaintiff
signed her lease with defendant on September 14, 2018, and
filed this action on October 3, 2018, roughly nineteen (19)
days later. Id. Plaintiff and defendant both agree
that the noises alleged are a result of neighbors and traffic
and not a result of any particular activities of the
DISCUSSION The defendant argues that the
plaintiff's claims are to be dismissed for lack of
subject matter jurisdiction pursuant to Rule 12(b)(1) and
failure to state a claim pursuant to Rule 12 (b)(6) of the
Federal Rules of Civil Procedure.
Subject-Matter Jurisdiction Plaintiff
asserts one federal claim; that the defendant violated her
rights under the Fair Housing Act (FHA), 42 U.S.C. §
3601, et seq., more specifically' 3604(f)(3)(B)
(discrimination in the sale or rental of housing and other
prohibited practices) which provides that
(f)(3) For purposes of this subsection, discrimination
(B) a refusal to make reasonable accommodations in rules,
policies, practices, or services, when such accommodations
may be necessary to afford such person equal ...