2010 WL 2292825

2010 WL 2292825 Only the Westlaw citation is currently available. United States District Court, W.D. Washington,
at Tacoma.
Raymond T. BALVAGE and Deborah A. Balvage, husband and wife; and Charles E. Weaver and
Susan M. Weaver, husband and wife, on their own behalf and on behalf of a class of similarly situated
individuals, Plaintiffs, v.
RYDERWOOD IMPROVEMENT AND SERVICE ASSOCIATION, INC., a Washington non-profit
corporation, Defendant.
No. C09-5409BHS. | June 4, 2010.
West KeySummary
1 Civil Rights Discrimination by Reason of Marital,
Parental, or Familial Status
Bylaws of subdivision’s homeowners’ association requiring owners to be at least 55 years of age and prohibiting any individual under 55 years old from residing in a home unless the individual is the homeowner’s spouse violated Federal Fair Housing Act’s (FHA) prohibition regarding discrimination on basis of familial status. Fair Housing Act, §§ 802(k), 804(a-e), 42 U.S.C.A. §§ 3602(k), 3604(a-e).
Attorneys and Law Firms
Joseph E. Lynam, Abraham K. Lorber, Lane Powell PC, Seattle, WA, for Plaintiffs.
Richard D. Ross, Steven Goldstein, Betts Patterson & Mines, Seattle, WA, for Defendant.
Opinion

ORDER DENYING DEFENDANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT AND
GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT
BENJAMIN H. SETTLE, District Judge.
*1 This matter comes before the Court on Defendant Ryderwood Improvement and Services Corporation’s (“RISA”) Motion for Partial Summary Judgment (Dkt.25) and Plaintiffs’ Motion for Partial Summary Judgment Re: Defendant’s Violation of FHA and Non-Compliance with HOPA Exception (Dkt.14). The Court has considered the pleadings filed in support of and in opposition to the motions and the remainder of the file and hereby denies RISA’s motion and grants in part and denies in part Plaintiffs’ motion for the reasons stated herein.
I. PROCEDURAL HISTORY
On July 8, 2009, Plaintiffs Raymond and Deborah Balvage and Charles and Susan Weaver filed a complaint against RISA. Dkt. 1. On November 10, 2009, Plaintiffs filed an Amended Complaint. Dkt. 11. Plaintiffs allege that RISA violated the Federal Fair Housing Act (“FHA”), 42 U.S.C. § 3604(c) et seq., committed fraudulent concealment and/or non-disclosure, and violated the Washington Consumer Protection Act, RCW Chapter 19.86. Dkt. 1, ¶¶ 47-67.
On March 11, 2010, Plaintiffs filed a motion for partial summary judgment. Dkt. 14. On March 29, 2010, RISA responded (Dkt.17), and on April 1, 2010, Plaintiffs replied (Dkt.20).
On April 1, 2010, RISA filed a motion for partial summary judgment (Dkt.22), and then on April 5, 2010, filed a corrected version of their motion (Dkt.25). On April 26, 2010, Plaintiffs responded (Dkt.29), and on April 30, 2010, RISA replied (Dkt.37).
II. FACTUAL AND STATUTORY HISTORY
A. Factual History Unless otherwise indicated, the following facts are

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undisputed:
Ryderwood is an area in Cowlitz County, Washington, that currently consists of approximately 270 single family homes. Dkt. 16, Exh. A at 10. In 1953, Senior Estates, Inc. platted this area as “Ryderwood No. 1.” Dkt. 24, Exh. A. The Ryderwood properties were devised by deeds and were subject to identical covenants and restrictions. See id., Exhs. A and B. RISA submitted as evidence a deed that “accurately reflects the general language and conditions used by Senior Estates to devise properties in Ryderwood.” Dkt. 24 at 2 ¶ 3 & Exh. B. The deed states that Senior Estates “has acquired and developed the real property known and platted as Ryderwood No. 1 ... as a community to be occupied by and for the use and benefit of persons who are bona fide recipients of a pension or retirement annuity....” Dkt. 24, Exh. B at 1. The deeds also provided Senior Estates with the right to enforce the provisions of the deed as well as transfer its right to enforce to RISA. Id. Finally, the deeds provided Senior Estates, and RISA as an assignee, the right to modify or terminate conditions in the deed by recording an instrument in the office of the County Recorder of Cowlitz County, Washington. Id.
In July of 1953, RISA was incorporated. Dkt. 24, Exh. C. In 1975, RISA amended its bylaws and recorded them at the office of the County Recorder of Cowlitz County. Id., Exh. D. The revised bylaws stated that:
*2 The qualifications for ownership or purchase of a home within [Ryderwood] are:
Must be a bona-fide recipient of an annuity or a pension.
Must not be less than fifty-five years of age
Must have no additional, permanent occupants of the home, (other than the spouse) who do not meet the above requirements.
Id., Exh. D. at 1.
In a letter dated December 30, 1992, the United States Department of Housing and Urban Development (“HUD”) responded to a request from Theda L. Williamson, a RISA board member, for information concerning RISA’s qualifications for an exemption from the FHA. Dkt. 15, Exh. A. The letter states that if RISA “fails to meet the requirements of the [FHA], any bylaws or deed restrictions which discriminate against persons based on familial status (i.e., presence of children) are unlawful.” Id. Further, the letter advises RISA to consult with an attorney or other person with experience in the area of fair housing to make sure that Ryderwood meets the requirements of the FHA. Id.

In a letter dated July 21, 1993, HUD responded to an additional request from Ms. Williamson regarding the applicability of HUD regulations and the Housing for Older Persons Act (“HOPA”) exception. Dkt. 15, Exh. B. The letter states that the FHA applies to private housing, regardless of how long such housing has been in existence, and that homeowners associations, and other similar organizations, must adhere to the FHA. Id. Further, in responding to Ms. Williamson’s third question of how RISA is affected by someone inheriting property in Ryderwood who is not fifty-five years old, HUD laid out the requirements of the HOPA exception and included with the letter a copy of the regulations that address the issue of housing for older persons. Id.
In a letter dated November 19, 1996, Ms. Williamson wrote to Mr. Swenson, a RISA board of directors candidate. The letter contains HUD regulations relating to housing for older persons including the duties of managers, “in this case our board.” Dkt. 15, Exh. C. In the letter, Ms. Williamson adds phrases to the regulations, such as “Our By-laws” and “our board” to show how she interpreted the regulations to apply to RISA. See Dkt. 15, Exh. C. At the end of the letter, Ms. Williamson writes:
Keep in mind that if these regulations are not adhered to, anyone with a grudge against the community, or persons wishing to sell to anyone, can cont [a]ct H.U.D. stating that we do not fulfill the required conditions, and can very likely destroy our retirement community.
These conditions have not been adhered to by the present board because they assume it isn’t in their domain. IF NOT THEM, WHO?
Id.
In September of 2005, RISA began conducting a survey to verify the ages of the residents in Ryderwood. Dkt. 16, Exh. A. The survey was completed in April of 2006. Id. In a letter dated April 19, 2006, Les Mulkey, a RISA board member, resigned, stating:
*3 I will always say that I do not agree with having HOPA involved with our corporation. Back in 1993 when our secretary inquired to our Government the board decision was made at that time we were not to be involved with HOPA. I will continue my beliefs but have reluctantly accepted our RISA board decision to follow HOPA.
Dkt. 15, Exh. E. In 2007, RISA conducted a second age

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verification survey. Dkt. 24, Exh. I. According to RISA, the survey established that Ryderwood had 273 available housing units, twenty-five of which were vacant, and 243 of which were occupied by one person who was at least fifty-five years of age. Id. at 1. Plaintiffs dispute the accuracy of the survey results. Dkt. 29 at 5-6.
Currently, RISA continues to take affirmative steps to inform residents, prospective purchasers, and the public at large, that Ryderwood is a community for residents fifty-five years of age and older. Dkt. 24 at 2 ¶ 7. RISA does this by “posting signs throughout the community stating that residency is restricted to those who are ‘55 and older,’ disclosures to real estate agents that work in the area, disclosures to title agencies that contact RISA, and disclosure to prospective purchasers and visitors to Ryderwood.” Id. RISA has enforced the restriction against residents under fifty-five years of age for the entire fifty-seven years of Ryderwood’s existence. Dkt. 24 at 2-3.
B. History of Relevant Statutes and Regulations The FHA prohibits, among other things, discrimination based on familial status. 42 U.S.C. § 3601 et seq. In 1988, Congress created an exception to the FHA’s prohibition that allows communities who meet certain requirements to qualify as housing for older persons and thus discriminate based on familial status. 42 U.S.C. § 3607(b)(1). This exception is commonly referred to as the HOPA. § 3607(b)(2)(C). The HOPA states that housing for older persons means, in relevant part, housing that is
intended and operated for occupancy by persons 55 years of age or older, and-
(i) at least 80 percent of the occupied units are occupied by at least one person who is 55 years of age or older;
(ii) the housing facility or community publishes and adheres to policies and procedures that demonstrate the intent required under this subparagraph; and
(iii) the housing facility or community complies with rules issued by the Secretary for verification of occupancy, which shall-
(I) provide for verification by reliable surveys and affidavits; and
(II) include examples of the types of policies and procedures relevant to a determination of compliance with the requirement of clause (ii). Such surveys and affidavits shall be admissible in administrative and judicial proceedings for the purposes of such verification.

Id.
In 1998, amendments were made to the FHA for the purpose of clarifying the requirements for complying with the HOPA exception. See 24 CFR 100.300 et seq. The amendments provided for a one-year transition period during which communities that sought to be housing for older persons, but were not compliant with HOPA at the time, could discriminate based on familial status in order to become compliant, as long as the community
*4 (i) Has reserved all unoccupied units for occupancy by at least one person 55 years of age or older until at least 80 percent of the units are occupied by at least once person who is 55 years of age or older; and
(ii) Meets the requirements of §§ 100.304, 100.306, and 100.307.
§ 100.305(e)(5). Section 100.304 states what type of housing may qualify for the HOPA exemption and states a definition for a housing facility or community. Section 100.306 states the requirements for a community to show that it intends to operate as housing for older persons. Section 100.307 states the requirements for verification of occupancy:
(a) In order for a housing facility or community to qualify as housing for persons 55 years of age or older, it must be able to produce, in response to a complaint filed under this title, verification of compliance with § 100.305 through reliable surveys and affidavits.
(b) A facility or community shall, within 180 days of the effective date of this rule, develop procedures for routinely determining the occupancy of each unit, including the identification of whether at least one occupant of each unit is 55 years of age or older. Such procedures may be part of a normal leasing or purchasing arrangement.
(c) The procedures described in paragraph (b) of this section must provide for regular updates, through surveys or other means, of the initial information supplied by the occupants of the housing facility or community. Such updates must take place at least once every two years....
(d) Any of the following documents are considered reliable documentation of the age of the occupants of the housing facility or community: (a) Driver’s license; (2) Birth certificate; (3) Passport; (4) Immigration card; (5) Military identification; (6) Any other state, local, national, or international official documents containing a birth date of comparable reliability; or (7) A certification in a lease, application, affidavit, ro other document signed by any member of te household age

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18 or older asserting that at least one person in the unit is 55 years of age or older.
(e) A facility or community shall consider any one of the forms of verification identified above as adequate for verification procedures required by this section.
(f) The housing facility or community must establish and maintain appropriate policies to require that occupants comply with the age verifications procedures required by this section.
* * *
(i) A summary of occupancy surveys shall be available for inspection upon reasonable notice and request by any person. Id. Section 100.305 states that the transition period would expire one year from the effective date of the final regulation. The effective date of the final regulation was April 2, 1999; thus, the transition period ended on May 3, 2000. Id. In 2006, HUD issued a memo (“2006 HUD Memo”) to all its regional directors to address the question of whether an existing community may become HOPA compliant after May 3, 2000, the expiration date of the transition period contained in § 100.305(e). 2006 HUD Memo, Dkt. 16, Exh. D. The memo states that its purpose is to provide
*5 clarification on how communities that did not convert to “housing for older persons” by May 3, 2000, can become housing for older persons. There are two ways to establish housing for older persons after the transition period: conversion and new construction.
First, an existing community or facility can convert to “housing for older persons” if 80 percent of its occupied units become occupied by at least one person 55 years of age or older. Unlike during the transition period, housing providers cannot discriminate against families with children in order to achieve 80 percent occupancy by persons 55 or older. In other words, a community or facility cannot reserve unoccupied units for persons 55 or older, advertise itself as housing for older persons, or evict families with children in order to reach the 80 percent threshold.... If the community or facility achieves the 80 percent threshold, without discriminating against families with children, it may then publish and adhere to policies and procedures that demonstrate an intent to provide housing for persons 55 years or older and comply with verification of occupancy rules.

Id. (emphasis in original).
III. DISCUSSION
A. Summary Judgment Standard Summary judgment is proper only if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The moving party is entitled to judgment as a matter of law when the nonmoving party fails to make a sufficient showing on an essential element of a claim in the case on which the nonmoving party has the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1985). There is no genuine issue of fact for trial where the record, taken as a whole, could not lead a rational trier of fact to find for the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (nonmoving party must present specific, significant probative evidence, not simply “some metaphysical doubt”). See also Fed.R.Civ.P. 56(e). Conversely, a genuine dispute over a material fact exists if there is sufficient evidence supporting the claimed factual dispute, requiring a judge or jury to resolve the differing versions of the truth. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 253, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir.1987).
The determination of the existence of a material fact is often a close question. The Court must consider the substantive evidentiary burden that the nonmoving party must meet at trial-e.g., a preponderance of the evidence in most civil cases. Anderson, 477 U.S. at 254; T.W. Elec. Serv., Inc., 809 F.2d at 630. The Court must resolve any factual issues of controversy in favor of the nonmoving party only when the facts specifically attested by that party contradict facts specifically attested by the moving party. The nonmoving party may not merely state that it will discredit the moving party’s evidence at trial, in the hopes that evidence can be developed at trial to support the claim. T.W. Elec. Serv., Inc., 809 F.2d at 630 (relying on Anderson, supra). Conclusory, nonspecific statements in affidavits are not sufficient, and missing facts will not be presumed. Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888-89, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990).
B. RISA’s Motion for Partial Summary Judgment

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1. Standing *6 “In Havens Realty Corp. v. Coleman, 455 U.S. 363, 372, 102 S.Ct. 1114, 71 L.Ed.2d 214 (1982), the Supreme Court reaffirmed that ‘Congress intended standing under the FHA to extend to the full limits of Article III and that courts accordingly lack the authority to create prudential barriers to standing in suits brought under that statute.’ “ Walker v. City of Lakewood, 272 F.3d 1114, 1123 (9th Cir.2001) (quoting Havens, 455 U.S. at 372 (internal quotation marks omitted)). Accordingly, the sole requirement for standing to bring a suit under the FHA is Article III’s “minima of injury in fact: that the plaintiff allege that as a result of the defendant’s actions he has suffered a distinct and palpable injury.” Havens, 455 U.S. at 372 (internal quotation marks omitted).
In Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992), the Supreme Court established the three requirements for a party to have standing under Article III:
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 causal connection between the injury and the conduct complained of-the injury has to be fairly traceable to the challenged action of the defendant, and not the 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.
Id. at 560-61 (internal quotation marks and citations omitted). When the issue of standing is brought up in the form of a motion for summary judgment, a plaintiff may not rest on mere allegations of injury resulting from the defendant’s conduct, but must “set forth by affidavit or other evidence specific facts, which for purposes of the summary judgment motion will be taken to be true.” Lujan, 504 U.S. at 561 (internal quotation marks and citations omitted).
RISA argues that it is entitled to summary judgment on the issue of standing because: (1) Plaintiffs present no proof of any FHA injury; (2) the harms alleged by Plaintiffs have no causal connection to any act prohibited under the FHA; and (3) Plaintiffs cannot show a substantial likelihood that the relief they request will

redress the alleged harms. Dkt 25. at 12-16. Plaintiffs maintain they have met the three requirements laid out in Lujan to have standing under Article III. Dkt. 29 at 12-15. In deciding RISA’s motion for summary judgment on the issue of standing, the Court takes as true the facts set forth in the evidence by Plaintiffs. Lujan, 504 U.S. at 561.
First, Plaintiffs have alleged an “injury in fact” in that they are unable to list their homes for sale to the general public and thus, are unable to sell their homes without complying with a policy they believe to be unlawfully discriminatory. Dkt. 32, Exhs. AI; Dkt. 33 at 3-4. This injury is “concrete and particularized” and “actual and imminent” in that real estate agents refuse to list Plaintiffs’ homes for sale to the general public and Plaintiffs do not want to be held responsible for unlawful discrimination for listing their homes as available only to those fifty-five years of age and older. Id. Further, even if Plaintiffs agreed to the restricted listing, those individuals who wanted to purchase a home in a community exclusively for older persons may hesitate based on the unsettled status of Ryderwood as such a community. Id. Next, Plaintiffs allege injuries resulting from retaliation by RISA because of their complaints of the alleged unlawful discrimination. Dkt. 32, Exhs. A-I; Dkt. 33 at 1-3. Moreover, Plaintiff Weaver has alleged an injury in that he was prohibited from allowing his minor son to live with him in Ryderwood. Dkt. 33 at 3. All of these injuries are the type of “concrete and particularized” and “actual and imminent” harms that are sufficient to meet the first standing requirement.
*7 Second, the injuries alleged by Plaintiffs are causally connected to the prohibited acts of RISA. Plaintiffs’ allegations are that RISA’s unlawfully discriminatory policy directly affects their ability to sell their homes and Weaver’s ability to have his son live with him. Dkt. 32, Exhs. A-I; Dkt. 33 at 1-4. Further, Plaintiffs maintain that RISA, through its members, is responsible for unlawful retaliation against Plaintiffs stemming from their complaints about RISA’s discriminatory policy. Dkt. 32, Exhs. A-I; Dkt. 33 at 1-3.
Third, the relief sought by Plaintiffs will redress the alleged harms. Plaintiffs seek damages resulting from RISA’s unlawful discrimination, as well as declaratory and injunctive relief to enjoin RISA from discriminating in the future. Dkt. 1 at 11-17. If Plaintiffs are successful in proving their claims of discrimination and retaliation and rebutting RISA’s affirmative defenses, then the relief they seek may be granted and their harms will be redressed.
2. Statute of Limitations “The Supreme Court has held that ‘where a plaintiff,

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pursuant to the Fair Housing Act, challenges not just one incident of conduct violative of the Act, but an unlawful practice that continues into the limitations period, the complaint is timely when it is filed within [the statutory period, running from] the last asserted occurrence of that practice.” Garcia v. Brockway, 503 R.3d 1092, 1096-97 (9th Cir.2007) (quoting Havens, 455 U.S. at 380-81 (footnote omitted)). Following the decision in Havens, Congress codified this continuing violation doctrine at § 3613(a) (1)(A). Now, under the FHA, “[a]n aggrieved person may commence a civil action in an appropriate United States district court or State court not later than 2 years after the occurrence or the termination of an alleged discriminatory housing practice....” Id.
Plaintiffs claim injuries resulting from an alleged unlawfully discriminatory housing practice which RISA admits is ongoing. Dkt. 24 at 2-3. Although Plaintiffs cite to specific incidents in which they have been injured by RISA’s practice, they also allege ongoing injuries caused by RISA’s policies and retaliation. Dkt. 32, Exhs. A-I; Dkt. 33. Thus, the Court concludes that Plaintiffs’ claims are not barred by the statute of limitations. See § 3613(a)(1)(A). Moreover, the specific incidents alleged by Plaintiffs are within the two-year statutory period. See id. Although Plaintiffs’ allegations regarding Weaver’s son living with him originated when Weaver moved to Ryderwood in 2005, Plaintiffs’ position is that RISA continues to not allow Weaver’s son to live with him. Dkt. 33. Therefore, RISA’s motion for summary judgment on this issue is denied.
3. The HOPA Exception The FHA prohibits discrimination based on familial status. Under the HOPA, a community can qualify for an exemption from this prohibition if it meets certain requirements. 42 U.S.C. § 3607(b). These requirements include: (1) ensuring that eighty percent of the occupied units are occupied by at least one person fifty-five years or older; (2) publishing policies and procedures that demonstrate the community’s intent to provide housing for persons fifty-five and older; (3) developing a process to verify the ages of occupants on a regular basis (at least every two years); and (4) maintaining proof of the age verification process and results. Id.; 24 C.F.R. §§ 100.306-100.307. A community that intended to be housing for older persons but did not meet these requirements by May 3, 2000, must cease discriminating on the basis of familial status until all requirements are met. 2006 HUD Memo, Dkt. 16, Exh. D. If the community seeking HOPA compliance “achieves the 80 percent threshold, without discriminating against families with children, it may then publish and adhere to policies and procedures that demonstrate an intent to provide

housing for persons 55 years or older and comply with verification of occupancy rules.” Id. (emphasis in original). These rules governing verification of occupancy are found at § 100.307 of the regulations and establish very specific things that a community is required to do in order to comply with the HOPA. § 100.307; see infra Section II.B.
*8 “When Congress has ‘explicitly left a gap for an agency to fill,’ ... any ensuing regulation is binding in the courts unless procedurally defective, arbitrary or capricious in substance, or manifestly contrary to the statute.” U.S. v. Mead Corp., 533 U.S. 218, 227, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001) (quoting Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843-44, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)). This principle is commonly referred to as Chevron deference. See generally Mead, 533 U.S. 218, 121 S.Ct. 2164, 150 L.Ed.2d 292. Although an agency’s internal memorandum is not entitled to “Chevron deference,” it is entitled to “a measure of deference because it interprets the agencies’ own regulatory scheme.” Coeur Alaska, Inc. v. Southeast Alaska Conservation, ---U.S. ----, ----, 129 S.Ct. 2458, 2473, 174 L.Ed.2d 193 (2009) (citing Auer v. Robbins, 519 U.S. 452, 461, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997)). This “measure of deference” is defined in Auer, where the Supreme Court held that an agency’s interpretation of its own regulation is controlling unless “plainly erroneous or inconsistent with the regulation.” Id. at 461.
Here, RISA is seeking summary judgment on its affirmative defense that it is compliant with the HOPA and therefore entitled to an exemption from the FHA’s prohibition of discrimination based on familial status. Dkt. 25 at 17-24. RISA admits that it has governed Ryderwood as a retirement community for persons fifty-five and over for over fifty-seven years. Dkt. 24 at 2-3. RISA admits that it has limited, and continues to limit, occupants of Ryderwood homes to persons aged fifty-five and over, with the exception of spouses. Id. Assuming all facts in favor of RISA, the record is clear that RISA did not attempt to comply with the HOPA until at least 2005. Id. at 14. The 2006 HUD Memo, an internal memorandum issued by HUD to its Regional Directors, interprets the agency’s own regulations found at 24 C.F.R. § 100.303 et seq. Dkt. 16, Exh. D. The memo is clear that under the regulations, once the transition period ended in May of 2000, any existing community seeking to comply with the HOPA is required to cease discrimination during the period of gaining compliance. Dkt. 16, Exh. D. The Court finds that this interpretation is neither plainly erroneous nor inconsistent with HUD’s regulations.
In attempting to comply with the HOPA requirements, RISA admits that it has never ceased discriminating

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against persons under the age of fifty-five. Id. at 2-5. Therefore, the Court concludes that RISA is not entitled to summary judgment on its affirmative defense that it is compliant with the HOPA.
C. Plaintiffs’ Motion for Partial Summary Judgment
1. Discrimination The FHA prohibits discrimination on the basis of familial status. § 3604(a)-(e). Section 3602(k) defines familial status as:
one or more individuals (who have not attained the age of 18 years) being domiciled with-
(1) a parent or another person having legal custody of such individual or individuals; or
*9 (2) the designee of such parent or other person having such custody, with the written permissions of such parent or other person.
Plaintiffs are seeking summary judgment that RISA unlawfully engaged in discrimination on the basis of familial status. Dkt. 14 at 7-8. First, in their motion for partial summary judgment, Plaintiffs cite generally to RISA’s policy that limits occupants of Ryderwood homes to those persons fifty-five and over. Id. In their reply to their own motion and in their opposition to Defendant’s motion for partial summary judgment, Plaintiffs cite specifically to: (1) their inability to list their homes for sale to the general public; (2) allegations that RISA retaliated against them for complaining about RISA’s wrongful discrimination; and (3) RISA’s alleged prohibition of Weaver’s minor son living with him in Ryderwood. Dkt. 20 at 8-11; Dkt. 29 at 13-15.
Having reviewed the record submitted in support of these claims and taking the facts in the light most favorable to RISA, the Court concludes that RISA has failed to raise a material question of fact as to Plaintiffs’ injuries involving the sale of their homes resulting from RISA’s discriminatory policy.
Plaintiffs claim injuries resulting from the inability to sell their homes to the general public. Dkt. 29 at 13-15. In support of their claims, Plaintiffs submitted declarations in which they explain their attempt to list their homes with local real estate agents and the agents’ refusal to list the homes for sale to the general public. Dkt. 32 at Exhs. A-II. Plaintiffs argue that RISA’s discriminatory policy leaves them in this “conundrum” in which they are forced to choose between complying with a policy they believe to be unlawfully discriminatory or not selling their homes. Dkt. 29 at 13-14. RISA does not dispute that it enforces a

discriminatory policy based on familial status. Dkt. 24 at 2-3; Dkt. 17 at 5. However, RISA argues in its opposition to Plaintiffs’ motion, that Plaintiffs do not have standing to bring their claims based on this discriminatory policy. Dkt. 17 at 11-16. As discussed above, the Court concludes that Plaintiffs do have standing to survive summary judgment. See supra Section III.B.1. In its reply to its own motion for summary judgment, RISA argues that Plaintiffs have no proof of their injuries related to the sale of their homes. Dkt. 37 at 2. However, RISA has produced no evidence to support its assertions, and, without more, such assertions are insufficient to defeat Plaintiffs’ summary judgment motion. T.W. Elec. Serv., Inc., 809 F.2d at 630 (stating that, for purposes of summary judgment, a nonmoving party may not merely state that it will discredit the moving party’s evidence at trial, in the hopes that evidence can be developed at trial to support the claim).
Accordingly, Plaintiffs are entitled to summary judgment on their claims resulting from their inability to list their homes for sale to the general public. The Court concludes that RISA has raised material questions of fact with regard to Plaintiffs’ specific allegations of retaliation and discrimination against Weaver based on his inability to live with his son.
2. The HOPA Exception *10 As explained above in the section denying summary judgment in favor of RISA on this issue, the Court agrees with Plaintiffs that the 2006 HUD Memo is entitled to deference in its interpretation of the regulations, the appropriate application of the “transition period,” and compliance with the HOPA after such period ended. See supra Section III.B.3. Therefore, the Court concludes that RISA is not entitled to the HOPA exception because it has not shown compliance with the regulations governing it. See id.
IV. ORDER
Therefore, it is hereby
ORDERED that RISA’s motion for partial summary judgment (Dkt.25) is DENIED and Plaintiffs’ motion for partial summary judgment (Dkt.14) is GRANTED in part and DENIED in part.

 
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View U.S. District Court Opinion View Original Source Image of This Document
RAYMOND T. BALVAGE and DEBORAH A. BALVAGE, husband and wife, and CHARLES E. WEAVER and SUSAN M. WEAVER, husband and wife, on their own
behalf and on behalf of a class of similarly situated individuals, Plaintiff, v. RYDERWOOD IMPROVEMENT AND SERVICE ASSOCIATION, INC., a
Washington non-profit corporation, Defendant. ASE NO. C09-5409BHS
UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON, TACOMA DIVISION
2009 U.S. Dist. Ct. Motions 628017; 2010 U.S. Dist. Ct. Motions LEXIS 44242 March 11, 2010
Motion for Summary Judgment VIEW OTHER AVAILABLE CONTENT RELATED TO THIS DOCUMENT: U.S. District Court: Motion(s) COUNSEL: [*1] Joseph E. Lynam, WSBA No. 12728, Abraham K. Lorber, WSBA No. 40668, Attorneys for Plaintiffs, Lane Powell PC, Seattle, WA. JUDGES: THE HONORABLE BENJAMIN H. SETTLE TITLE: Plaintiffs' Motion For Partial Summary Judgment Re Defendant's Violation Of FHA And Non-Compliance With HOPA Exception TEXT: I. RELIEF REQUESTED
Plaintiffs Raymond T. Balvage, Deborah A. Balvage, Charles E. Weaver, and Susan M. Weaver (collectively, "Plaintiffs") hereby move the Court for an order granting partial summary judgment on the following issues:
1. Defendant Ryderwood Improvement and Service Association, Inc. ("RISA") has discriminated in the sale and rental of housing on the basis of familial status, which is a type of discrimination prohibited by the Fair Housing Act, 42 U.S.C. 3601, et. seq. ("FHA");
2. RISA has not complied with the Housing for Older Persons Act ("HOPA") exception to the FHA (which exception is contained in 42 U.S.C. § 3607(b) and detailed in related regulations); and
3. RISA has therefore violated the FHA.

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Alternatively, in the event the Court does not grant all three parts of the requested relief, Plaintiffs request that the [*2] Court grant one or more parts of the requested relief.
II. SUMMARY OF ARGUMENT
For the Court's convenience, Plaintiff's respectfully submit the following summary of their legal argument. n1

n1 Citations to all statements of fact and law contained in this summary are contained in the Material Facts and Legal Argument sections below.
RISA admits it discriminates in the sale and rental of housing on the basis of familial status. This is a type of discrimination prohibited by the FHA. RISA contends the HOPA exception applies to allow it to engage in such discrimination. However, as explained below, the HOPA exception is not applicable in this case.
HOPA provides an exception to the FHA's prohibition of discrimination on the basis of familial status for communities which satisfy certain requirements and take certain actions related to 80% of the occupied units being occupied by at least one person 55 years of age or older. RISA bears the burden of proving that it timely satisfied these requirements [*3] and timely took such actions. The bedrock public policy considerations behind the FHA's prohibitions on discrimination require that any exceptions to the FHA be narrowly construed. In order to comply with HOPA, a community must, among other things, develop procedures that provide for regular age-verification surveys in order to document the community's attainment of the 80% threshold.
HOPA provided a "Transition Period" during which non-compliant communities could discriminate on the basis of familial status during their conversion to HOPA compliance. This Transition Period ended on May 3, 2000. RISA was not HOPA compliant by the end of the Transition Period.
RISA admits it did not decide to try to become HOPA compliant until spring 2006. RISA admits its first allegedly sufficient age-verification survey was not completed until April 2006. 24 C.F.R. 100.305 and memos from HUD make clear that, if a housing community is not HOPA compliant before the end of the Transition Period, it may not discriminate after the Transition Period in an effort to convert to HOPA compliance. It is undisputed that RISA engaged in discrimination after the Transition Period and before it decided to try [*4] to become HOPA complaint. Thus, RISA's attempted conversion to HOPA compliance failed. Because of this failure, RISA has never been HOPA compliant and thus its discriminatory conduct violates the FHA.
III. EVIDENCE RELIED UPON
In bringing this Motion, Plaintiffs rely upon the Declaration of Charles E. Weaver In Support of Plaintiffs' Motion For Partial Summary Judgment and attached exhibits ("Weaver Decl."); the Declaration of Joseph E. Lynam In Support of Plaintiffs' Motion For Partial Summary Judgment and attached exhibits ("Lynam Decl."); and the pleadings and files herein. A proposed Order is filed herewith.
IV. ISSUES
1. Should the Court grant partial summary judgment that RISA has engaged in discrimination on the basis of familial status?
2. Should the Court grant partial summary judgment that RISA has failed to comply with the HOPA exception to the FHA?

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3. Should the Court grant partial summary judgment that RISA has therefore violated the FHA?
V. STATEMENT OF FACTS
A. Background Information on RISA.
1. Ryderwood is an unincorporated area in Cowlitz County, Washington, which currently is comprised of approximately 270 single [*5] family homes. Weaver Decl. P 3; RISA Rule 30(b)(6) Deposition (Exh. A to Lynam Decl.), at A-10 (p. 48, ll. 18-24).
2. In July 1953, RISA was incorporated to provide certain utilities and services for the Ryderwood community. Articles of Incorp. (Exh. B to Lynam Decl.), at B-11.
3. Now, RISA purports to govern the community of Ryderwood as though it were a homeowners' association. RISA Rule 30(b)(6) Deposition (Exh. A to Lynam Decl.), at A-5 (p. 10, ll. 22-25).
4. In its Answer, RISA stated: "defendant admits that sales of property within Ryderwood are limited to persons who are 55 years or older." Dkt. 6, at p. 3, P 18, ll. 19-20. In its answers to interrogatories in answer to Interrogatory No. 6, RISA stated: "Sales of property have been limited to those persons who are 55 years of age or older since 1975." Interrog. Answers (Exh. C to Lynam Decl.), at C-17.
B. Between December 1992 and April 2006, RISA Knew About the FHA and HOPA but Chose Not to Comply with Their Provisions.
1. In a letter dated December 30, 1992, HUD advised RISA that its discrimination on the basis of familial status would be illegal unless it met the FHA's requirements for housing for older [*6] persons. 1992 HUD Letter (Exh. A to Weaver Decl.), at A-7.
2. In a letter dated July 21, 1993, HUD further advised RISA that "The Fair Housing Act applies to private housing and private housing providers regardless of how long they have been in existence." 1993 HUD Letter (Exh. B to Weaver Decl.), at B-8.
3. In a November 19, 1996 letter to a RISA Board of Directors ("Board") candidate, then Board member Theda Williamson made clear that RISA had not heeded HUD's advice. 1996 Williamson Letter (Exh. C to Weaver Decl.), at C-10 to C-11. Ms. Williamson wrote: "These [FHA] conditions have not been adhered to by the present board because they assume it isn't in their domain. IF NOT THEM, WHO?" Id., at C-11.
4. In 1998, amendments were passed which clarified the requirements of housing communities which sought to qualify for the HOPA exception to the FHA. 24 CFR 100.300, et seq. These amendments became effective April 2, 1999. Id. These amendments provided that, if a housing community was not HOPA compliant as of the effective date of the amendments, the housing community would be given a "Transition Period" of one year to become HOPA compliant. 24 C.F.R. 100.305(e)(5). This [*7] Transition Period expired May 3, 2000. 2006 HUD Memo (Exh. D to Lynam Decl.), at D-20. During this Transition Period, a housing community could discriminate on the basis of familial status while converting to HOPA compliant status. 24 C.F.R. 100.305(e)(5); 2006 HUD Memo (Exh. D to Lynam Decl.), at D-20. However, for housing communities which failed to convert to HOPA compliance by the end of the Transition Period, such communities could not discriminate after the Transition Period in an effort to later convert to HOPA compliance. 2006 HUD Memo (Exh. D to Lynam Decl.), at D-21.
5. On May 3, 2000, the Transition Period ended. Id. RISA continued to engage in discriminatory conduct but took no further steps towards HOPA compliance. Dkt. 6, at p. 3, P 18, ll. 19-20; Interrog. Ans. (Exh. C to Lynam Decl.), at C-17; 2006 Mulkey Letter (Exh. E to Weaver Decl.), at E-19. Indeed RISA did not even decide to try and comply with HOPA until six years after the Transition Period ended. RISA Rule 30(b)(6) Deposition (Exh. A to Lynam Decl.), at

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A-9 (p. 31, ll. 13-19). Board member Les Mulkey explained that RISA's longtime policy was knowing non-compliance with HOPA: "I will always say that I do [*8] not agree with having HOPA involved with our corporation. Back in 1993 when our secretary inquired to the Government the board decision was made at that time we were not to be involved with HOPA." 2006 Mulkey Letter (Exh. E to Weaver Decl.), at E-19.
6. On November 4, 2005, RISA was served with a subpoena duces tecum in a lawsuit in which it later became a party. Subpoena (Exh. D to Weaver Decl.), at D-13 to D-18. This subpoena demanded that RISA produce all documents in its possession relating to its status regarding HOPA compliance. Id.
7. In the spring of 2006, RISA first decided to try to become HOPA compliant. RISA Rule 30(b)(6) Deposition (Exh. A to Lynam Decl.), at A-9 (p. 31, ll. 13-19).
8. RISA contends that in April 2006 it completed its first allegedly sufficient age-verification survey. n2 RISA Rule 30(b)(6) Deposition (Exh. A to Lynam Decl.), at A-7 to A-8 (p. 18, l. 20 - p. 19, l. 9). A housing community cannot be HOPA complaint unless it regularly performs such surveys. 24 C.F.R. 100.307.

n2 Plaintiffs adamantly dispute that such a survey took place, was completed, or was legally adequate. However, the Court's determination of the occurrence or adequacy of this survey is not necessary for the Court's determination of this Motion.
[*9]
9. In June 2006, Mr. Mulkey ended his tenure as a RISA board member over RISA's April 2006 decision to become HOPA compliant. 2006 Mulkey Letter (Exh. E to Weaver Decl.), at E-19.
10. RISA continues to discriminate on the basis of familial status up through the present day. Dkt. 6, at p. 3, P 18, ll. 19-20; Interrog. Answers (Exh. C to Lynam Decl.), at C-17; RISA Rule 30(b)(6) Deposition (Exh. A to Lynam Decl.), at A-6 (p. 14, ll. 2-4).
VI. LEGAL ARGUMENT
A. Summary Judgment Standard
Summary judgment is appropriate if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The burden is on the moving party to show conclusively that no genuine issue of material fact exists, and the Court must view the facts and all inferences to be drawn therefrom in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).
Once the moving party presents evidence sufficient to support a motion under Fed.R.Civ.P. 56, the nonmoving party is not entitled to a trial merely on the basis [*10] of allegations. The nonmoving party is required to come forward with some significant probative evidence which makes it necessary to resolve the factual dispute at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322- 23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party is entitled to summary judgment if the nonmoving party fails to make a sufficient showing on an essential element of the nonmoving party's case with respect to which the nonmoving party has the burden of proof. Celotex, 477 U.S. at 323, 106 S.Ct. 2548. The issue of whether or not a housing community is HOPA compliant may properly be decided on summary judgment. U.S. v. Fountainbleau Apartments, L.P., 566 F.Supp.2d 726, 738 (E.D. Tenn. 2008).
B. RISA Discriminates Against Families With Children. This Type of Discrimination is Prohibited by the FHA.

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The federal Fair Housing Act, contained in 42 U.S.C. § 3601, et seq. (the "FHA") prohibits discrimination in the sale or rental of housing on the basis of, among other things, familial status. 42 U.S.C. §§ 3604(a)-(e). Familial status means:
one or [*11] more individuals (who have not attained the age of 18 years) being domiciled with - (1) a parent or another person having legal custody of such individuals; or (2) the designee of such parent or other person having such custody, with the written permission of such parent or other person.
Simply put, the FHA does not allow discrimination in the sale or rental of housing against families with children. The statute includes a private cause of action so that aggrieved individuals may enforce its provisions. 42 U.S.C. 3613.
RISA admits it discriminates on the basis of familial status. In its Answer, Affirmative Defenses, and Counterclaim, RISA stated that "defendant admits that sales of property within Ryderwood are limited to persons who are 55 years or older." Dkt. 6, at p. 3, P 18, ll. 19-20. In its answers to Plaintiffs' interrogatories, RISA stated that "Sales of property have been limited to those persons who are 55 years of age or older since 1975." Interrog Answers (Exh. C to Lynam Decl.), at C-17. RISA has continuously engaged in such discrimination from 1975 through the present. Id.
Based on these admissions, Plaintiffs request that the Court [*12] grant partial summary judgment that RISA has engaged in discrimination on the basis of familial status, which is a type of discrimination prohibited by the FHA.
C. RISA Has Failed to Comply with the HOPA Exception.
1. Background on HOPA
Although the FHA prohibits discrimination on the basis of familial status, it provides an exception in certain situations for housing for older persons. 42 U.S.C. § 3607(b)(1). Housing for older persons is a defined term under the FHA, which, as it relates to this lawsuit, means,
[H]ousing. . . (C) intended and operated for occupancy by persons 55 years of age or older, and - (i) at least 80 percent of the occupied units are occupied by at least one person who is 55 years of age or older; (ii) the housing facility or community publishes and adheres to policies and procedures that demonstrate the intent required under this subparagraph; and (iii) the housing facility or community complies with rules by the Secretary for verification of occupancy, which shall - (I) provide for verification by reliable surveys and affidavits; and (II) include examples of the types of policies and procedures relevant [*13] to a determination of compliance with the requirement of clause (ii). Such surveys and affidavits shall be admissible in administrative and judicial proceedings for the purposes of such verification.
42 U.S.C. § 3607(b)(2)(C). This exception was added to the FHA in 1988 and is commonly known as the Housing for Older Persons Act ("HOPA"). Id. Thus, in order to satisfy the requirements of this exception, it is not enough that a community merely has at least 80 percent of the occupied units occupied by at least one person who is 55 years of age or older. The community must do a number of other things, such as publish policies and procedures demonstrating an intent to limit residency to persons 55 years of age or older, develop procedures for routinely conducting age-verification surveys, and actually conduct such surveys on a regular (every two years) basis. Id.; 24 C.F.R. 100.306-100.307.
Specifically speaking, one of the requirements for HOPA compliance is that a housing community "develop procedures for routinely determining the occupancy of each unit, inducing the identification of whether at least one occupant of each unit is 55 years of age [*14] or older." 24 C.F.R. 100.307(b). The housing community "must be able to produce, in response to a complaint filed under [the FHA], verification of compliance with Sec. 100.305 through reliable surveys and affidavits." 24 C.F.R. 100.307(a). Thus, HOPA requires that communities which wish to discriminate on the basis of familial status must develop procedures for conducting age-verification surveys, must

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actually conduct the surveys on a regular basis, and must be able to prove that reliable surveys were actually conducted.
2. RISA Bears the Burden of Proving it Qualifies for the HOPA Exception
Federal courts are clear that a party wishing to qualify for an exception under the FHA bears the burden of proving compliance. See Fair Housing Advocates Ass'n, Inc. v. City of Richmond Heights, Ohio, 209 F.3d 626, 635 (6th Cir. 2000) (holding that city asserting FHA exemption bore burden of proving compliance therewith). The reasoning behind this allocation of burden derives its force from the public policy underpinning the FHA. "Exemptions from the Fair Housing Act are to be construed narrowly, in recognition of the important goal of preventing housing discrimination. [*15] " Massaro v. Mainlands Section 1 & 2 Civic Ass'n, Inc., 3 F.3d 1472, 1475 (11th Cir. 1993) (reversing district court's conclusion that homeowners association qualified for HOPA exemption).
If RISA contends that it is entitled to discriminate on the basis of familial status because of the exception to the FHA created by HOPA, then RISA bears the burden of proving it complies with HOPA. Moreover, the Court should narrowly construe the HOPA exception so as not to frustrate Congress's important public policy objective of ensuring equality in the rental and sale of housing.
3. The HOPA Transition Period
In 1998, HUD promulgated regulations whose aim was to "effectuate the exemption in the Fair Housing Amendments Act of 1988 that relates to housing for older persons." 24 C.F.R. 100.300. These regulations were promulgated pursuant to authority granted to the Secretary of Housing and Urban Development in 42 U.S.C. 3607(b)(2)(iii) and 42 U.S.C. § 3608. In issuing these regulations, HUD provided for a one year "Transition Period" during which non-HOPA compliant communities could become HOPA compliant without running afoul [*16] of the law. 24 C.F.R. 100.305(e)(5). This Transition Period ended May 3, 2000. 2006 HUD Memo (Exh. D to Lynam Decl.), at D-20.
Communities which were not HOPA compliant at the time the 1998 amendments took effect were given one year to become HOPA compliant. 24 C.F.R. 100.305(e)(5). In reaching the statutorily required 80% threshold, these communities were allowed to advertise themselves as 55 and older communities and set aside available housing for persons 55 and older; i.e., the communities were allowed to discriminate during the Transition Period. Id.
In a Memorandum dated March 6, 2006 issued by the U.S. Department of Housing and Urban Development on the subject of "Conversion to Housing for Older Persons Under the Fair Housing Act and the Housing for Older Persons Act of 1995 (HOPA)" ("2006 HUD Memo"), HUD gave its interpretation of its regulations on the question of how a community could become HOPA compliant after the end of the Transition Period. 2006 HUD Memo (Exh. D to Lynam Decl.), at D-20 to D-21. HUD's interpretation of its own regulations commands considerable deference by a reviewing court. Harris v. Itzhaki, 183 F.3d 1043, 1051-1052 (9th Cir. 1999) [*17] (holding that the Secretary of Housing and Urban Development ordinarily commands considerable deference in interpreting the FHA because HUD is the federal agency primarily assigned to implement and administer Title VIII) (citing Pfaff v. HUD, 88 F.3d 739, 747 (9th Cir. 1996); Chevron USA, Inc., v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)).
The 2006 HUD Memo stated that:
[A]n existing community can convert to 'housing for older persons' if 80 percent of its occupied units become occupied by at least one person 55 years of age or older. Unlike during the transition period, housing providers cannot discriminate against families with children in order to achieve 80% occupancy. In other words, a community or facility cannot reserve unoccupied units for persons 55 or older, advertise itself as housing for older persons, or evict families with children in order to meet the 80 percent threshold.

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Id. n3 Only if
the community or facility achieves the 80 percent threshold, without discriminating against families with children, may it then publish and adhere to policies [*18] and procedures which demonstrate an intent to provide housing for persons 55 years or older and comply with verification of occupancy rules.
Id. (emphasis in original). Thus, an existing community which is not HOPA compliant by the end of the Transition Period that later wishes to become HOPA compliant must naturally achieve the 80% threshold before it engages in discrimination. HUD's clarification of 24 C.F.R. 100.305(e)(5) makes perfect sense and is the only logical approach to implementing the intent of the relevant statutes and regulations. If communities are allowed to discriminate after the Transition Period ends for some extended period of time before actually trying to become HOPA compliant, why have a transition period at all? 24 C.F.R. 100.305(e)(5) and the HUD Memo articulate a policy limiting discrimination consistent with case law holdings and Congress' intent that exceptions to the FHA be narrowly construed.
n3 The only other way to become HOPA complaint after the transition period is to "construct a new housing community or facility." Id.
[*19]
Here, it is undisputed that RISA did not convert to HOPA compliant status during the Transition Period. 2006 Mulkey Letter (Exh. E to Weaver Decl.), at E-19. Indeed, RISA did not make the decision to try and become HOPA compliant until April 2006. RISA Rule 30(b)(6) Deposition (Exh. A to Lynam Decl.), at A-9 (p. 31, ll. 13-19). Also, RISA did not complete its first allegedly sufficient age-verification survey until April 2006, n4 so there is no way that it could have been HOPA compliant before that time. RISA Rule 30(b)(6) Deposition (Exh. A to Lynam Decl.), at A-7 (p. 18, l. 20 - p. 19, l. 9). Despite not being HOPA compliant, RISA continuously engaged in discrimination on the basis of familial status before, during, and after the Transition Period. Dkt. 6, at p. 3, P 18, ll. 19-20; Interrog. Answers (Exh. C to Lynam Decl.), at C-17.
n4 Plaintiffs adamantly dispute that such a survey took place, was completed, or was legally adequate. However, the Court's determination of the occurrence or adequacy of this survey is not necessary for the Court's determination of this Motion.
[*20]
4. RISA's Attempted April 2006 Conversion to HOPA Compliant Status Failed
Here, RISA admits it did not make the decision to attempt to become HOPA compliant until April 2006. RISA Rule 30(b)(6) Deposition (Exh. A to Lynam Decl.), at A-9 (p. 31, ll. 13-19). RISA's decision to attempt to become HOPA compliant was made only after receipt of the subpoena duces tecum in the Bichler litigation which demanded that RISA's produce its HOPA related documents. Subpoena (Exh. D to Weaver Decl.), at D-13 to D-18; Weaver Decl. P 12. Where HOPA compliance efforts are initiated in response to pending or threatened litigation, Courts will not hesitate to minimize the import of those efforts. Simovits v. Chanticleer Condominium Assoc., 933 F.Supp. 1394, 1403 (N.D. Ill. 1996) (citing Massaro, 3 F.3d at 1478).
Since RISA continuously discriminated after the Transition Period ended, it did not comply with the post-Transition Period conversion rules. Only those communities who achieve the 80% threshold without discriminating

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are entitled to convert to HOPA compliance after the Transition Period ends. 2006 HUD Memo (Exh. D. to Lynam Decl.), at D-21. The undisputed [*21] facts clearly show that RISA did not achieve the threshold naturally, that is, without discrimination. Thus, RISA's attempted conversion failed and the HOPA exception does not apply.
Here, starting in December 1992, the federal government warned RISA and made it very clear that it could not engage in discrimination in violation of the FHA unless it complied with HOPA. RISA chose to ignore these warnings and blatantly acted in disregard of federal law. It is now too late for RISA to try to claim the benefits of federal law concerning HOPA when it intentionally chose to ignore the requirements of HOPA for so many years. The public policy of non-discrimination cannot be brushed aside lightly. RISA's day-late, dollar-short efforts to become HOPA compliant clearly fall outside the narrow construction accorded to HOPA by federal law.
Because RISA failed to successfully convert to HOPA compliant status, Plaintiffs request that the Court grant partial summary judgment that RISA has failed to qualify for the HOPA exception to the FHA.
D. RISA's Discriminatory Conduct Violates the FHA Because the HOPA Exception is Inapplicable
Because RISA has engaged in discrimination on the [*22] basis of familial status and because RISA has never successfully converted to HOPA compliance, RISA's discriminatory conduct constitutes a violation of the FHA. Plaintiffs therefore respectfully request that the Court grant partial summary judgment that RISA has violated the FHA.
VII. CONCLUSION
For the foregoing reasons, Plaintiffs respectfully request that Plaintiffs' Motion for Partial Summary Judgment Re Defendant's Violation of FHA and Non-Compliance with HOPA Exception be granted.
DATED: March 11, 2010
LANE POWELL PC
By /s/ Joseph E. Lynam Joseph E. Lynam, WSBA No. 12728 Abraham K. Lorber, WSBA No. 40668 Attorneys for Plaintiffs Lane Powell PC 1420 Fifth Avenue, Ste. 4100 Seattle, WA 98101-2338 T: 206-223-7000 F: 206-223-7107 Email: lynamj@lanepowell.com Email: lorbera@lanepowell.com
CERTIFICATE OF SERVICE
The undersigned certifies under penalty of perjury under the laws of the State of Washington, that on March 11, 2010, the document attached hereto was presented to the Clerk of the Court for filing and uploading to the CM/ECF system. In accordance with their ECF registration agreement and the Court's rules, the Clerk [*23] of the Court will send e-mail notification of such filing to the following persons:
Attorneys for Defendant: Steven Goldstein Betts, Patterson & Mines, P.S.

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One Convention Place, Suite 1400 701 Pike St. Seattle, WA 98101 T: 206-292-9988 Email: sgoldstein@bpmlaw.com
[[checkmark]] by CM/ECF [] by Electronic Mail [] by Facsimile Transmission [] by First Class Mail [] by Hand Delivery [] by Overnight Delivery
/s/ Joseph E. Lynam Joseph E. Lynam, WSBA No. 12728
LANE POWELL PC 1420 Fifth Avenue, Suite 4100 Seattle, WA 98101-2338 Tel: 206.223.7000 Fax: 206.223.7107 Email: lynamj@lanepowell.com
Attorney(s) for Plaintiffs
DECLARATION OF JOSEPH E. LYNAM IN SUPPORT OF PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT
I, Joseph E. Lynam, hereby declare as follows:
1. I am an attorney representing the Plaintiffs in above-captioned lawsuit. I am a citizen of the United States of America, am over 18 years old, am competent to testify herein, and have personal knowledge of the facts stated below.
2. Attached hereto as Exhibit A is a true and correct copy of excerpts from the transcript [*24] of the Rule 30(b)(6) deposition of defendant Ryderwood Improvement and Service Association, Inc. ("RISA"), whose designated representative was RISA Board of Directors member Sally Gene De Briae and which deposition occurred on February 12, 2010.
3. Attached hereto as Exhibit B is a true and correct copy RISA's Articles of Incorporation, filed with the Washington Secretary of State on July 1, 1953, and produced by RISA in response Plaintiffs' First Set of Discovery Requests.
4. Attached hereto as Exhibit C is a true and correct copy of excerpts from Defendant's Answers to Plaintiffs' First Set of Discovery Requests, dated January 7, 2010.
5. Attached hereto as Exhibit D is a true and correct copy of a Memorandum dated March 6, 2006 issued by the U.S. Department of Housing and Urban Development which stated its "SUBJECT" as "Conversion to Housing for Older Persons Under the Fair Housing Act and the Housing for Older Persons Act of 1995 (HOPA)."
I hereby declare under penalty of perjury under the laws of the United States of America and the State of Washington that the foregoing is true and correct.

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SIGNED this 11th day of March, 2010 at Seattle, King County, Washington.
[*25] /s/ Joseph E. Lynam Joseph E. Lynam, WSBA No. 12728 Lane Powell PC 1420 Fifth Avenue, Suite 4100 Seattle, Washington 98101-2338 T: 206-223-7088 F: 206-223-7107 E-mail: lynamj@lanepowell.com
CERTIFICATE OF SERVICE
The undersigned certifies under penalty of perjury under the laws of the State of Washington, that on March 11, 2010, the document attached hereto was presented to the Clerk of the Court for filing and uploading to the CM/ECF system. In accordance with their ECF registration agreement and the Court's rules, the Clerk of the Court will send e-mail notification of such filing to the following persons:
Attorneys for Defendant: Steven Goldstein Betts, Patterson & Mines, P.S. One Convention Place, Suite 1400 701 Pike St. Seattle, WA 98101 T: 206-292-9988 Email: sgoldstein@bpmlaw.com
[[checkmark]] by CM/ECF [] by Electronic Mail [] by Facsimile Transmission [] by First Class Mail [] by Hand Delivery [] by Overnight Delivery
/s/ Joseph E. Lynam Joseph E. Lynam, WSBA No. 12728
LANE POWELL PC 1420 Fifth Avenue, Suite 4100 Seattle, WA 98101-2338 Tel: 206.223.7000 Fax: [*26] 206.223.7107 Email: lynamj@lanepowell.com
Attorney(s) for Plaintiffs
[SEE [PROPOSED] ORDER GRANTING PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT RE DEFENDANT'S VIOLATION OF FHA AND NON-COMPLIANCE WITH HOPA EXCEPTION IN ORIGINAL]

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[SEE DECLARATION OF CHARLES E. WEAVER IN SUPPORT OF PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT IN ORIGINAL]
[SEE EX A IN ORIGINAL] [SEE EX B IN ORIGINAL] [SEE EX C IN ORIGINAL] [SEE EX D IN ORIGINAL]

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View U.S. District Court Opinion View Original Source Image of This Document
RAYMOND T. BALVAGE and DEBORAH A. BALVAGE, husband and wife, and CHARLES E. WEAVER and SUSAN M. WEAVER, husband and wife, on their own
behalf and on behalf of a class of similarly situated individuals, Plaintiffs, vs. RYDERWOOD IMPROVEMENT AND SERVICE ASSOCIATION, INC., a
Washington non-profit corporation, Defendant. ASE NO. C09-5409BHS
UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON, TACOMA DIVISION
2009 U.S. Dist. Ct. Motions 628017; 2010 U.S. Dist. Ct. Motions LEXIS 44243 March 29, 2010
Motion for Summary Judgment VIEW OTHER AVAILABLE CONTENT RELATED TO THIS DOCUMENT: U.S. District Court: Motion(s) COUNSEL: [*1] Steven Goldstein, WSBA #11042, Richard D. Ross, WSBA #34502, Attorneys for Defendants, BETTS PATTERSON & MINES, P.S., Seattle, WA. JUDGES: Honorable Benjamin H. Settle TITLE: Defendant's Opposition To Plaintiffs' Motion For Partial Summary Judgment TEXT: I. INTRODUCTION
Plaintiffs argue that Defendant Ryderwood Improvement and Service Association's ("RISA") alleged failure to comply with the Housing for Older Persons Act ("HOPA") in 2000 negates any right to rely on that defense in the future. Consequently, they ask this Court to order that Ryderwood - a 57 year old retirement community - can no longer enforce its status as an age restricted community. Pointedly, the Plaintiffs do not claim to be the victims of any act of discrimination, nor do they provide proof that any act of discrimination prohibited by the Fair Housing Act ("FHA") was committed against any family. Instead they conflate RISA's restricted age policies into affirmative evidence that RISA "discriminated" against families at some point between 2000 and 2006 and, based upon this supposition, argue that the HOPA defense can never be asserted in the future.
Neither conclusion is warranted and this motion should [*2] be denied. First, the Plaintiffs lack standing. As in any FHA claim, the Plaintiffs must show they suffered an actual injury, that

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those injuries stemmed from an actual act of discrimination, and that those injuries are redressable by this Court. They do not do so. They provide no proof of any act of discrimination at all, much less any act perpetrated against them. Nor could they allege any claims: each is over 55, none meet the familial status definition, and none provide evidence they suffered any harm. What they cite are alleged past violations of HOPA. But HOPA is not a cause of action, it is merely a defense to legitimate claims of familial status discrimination. This is not sufficient to provide them with standing.
Second, Plaintiffs claims are barred under the two year statute of limitations. The actions alleged all took place at some point prior to April, 2006. Even if allowed to proceed under their generalized "failure to comply with HOPA" theory, they cite no errors with the 2006 and 2007 HOPA surveys. Thus whatever allegations they raise took place, if at all, at least three years prior to the date their Complaint was filed: November, 2009.
Third, the Plaintiffs' [*3] "failure to convert to HOPA" theory is groundless. It is based on a flawed analysis that fails to recognize that HOPA is only relevant if some actual act of discrimination is shown. Furthermore, HUD regulations clearly state that RISA need only show compliance with HOPA as of the date of an actual act of discrimination. Under Plaintiffs' theory, a community would be required to show compliance from the date of inception until present. This is not the rule.
Taken as a whole, Plaintiffs' motion relies on the argument that any past failure to comply with HOPA negates any future right to assert the defense. However, they offer no evidence or legal precedent in support. And from that posture, they ask this Court to hold that Ryderwood - formed as a retirement community in 1953 - can no longer fulfill that purpose. Summary judgment should be denied.
II. FACTS
A. HOPA Is Not A Status, It Is A Defense.
Plaintiffs allege that RISA failed to comply with HOPA. To rely upon the defense, a retirement community must show:
(1) at least 80 percent of the occupied units are occupied by at least one person 55 years of age or older;
(2) the community publishes and adheres [*4] to policies and procedures that demonstrate an intent that the community be occupied by people 55 years of age or older; and
(3) the community complies with age verification regulations established by [HUD].
42 USC § 3607(b)(2)(C). RISA policies met this standard well before HOPA was enacted.
B. Ryderwood Has Been A Retirement Community For 57 Years.
Ryderwood has existed as a retirement community since 1953 when Senior Estates platted the town as "Ryderwood No. 1." n1 All Ryderwood properties were devised by deed and subject to identical covenants and restrictions. The deeds state:
[Senior Estates] has acquired and developed the real property known and platted as Ryderwood No. 1 ... as a community to be occupied by and for the use and benefit of persons who are bona fide recipients of a pension or retirement annuity... n2

n1 See Declaration of Sally-Gene DeBriae in Support of Opposition to Motion for Partial Summary Judgment

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and Motion for Summary Judgment (hereafter "DeBriae Dec"), Ex. A thereto (Ryderwood Plat Map). [*5]
n2 DeBriae Dec. Ex. B thereto (sample Senior Estates Deed).
The deeds provide Senior Estates with the right to enforce those provisions as well as the right to transfer that power to its designee, RISA. As noted in the deed:
The Grantor, or Grantor's assigns, may at any time transfer and assign their rights to enforce the covenant and conditions contained in the deed to RYDERWOOD IMPROVEMENT AND SERVICE ASSOCIATION .. . n3

n3 Id.
The deed also provides RISA with the right to modify conditions by adopting and recording its bylaws:
Grantor, on behalf of Grantor and its assigns, hereby reserves the right, at its discretion, to modify or terminate any or all of the foregoing conditions by recording an instrument in the office of the County Recorder of Cowlitz County, Washington. n4

n4 Id.
[*6] Senior Estates incorporated RISA in 1953 as well. n5 In 1975, RISA revised its bylaws and recorded them at the
Cowlitz County Recorders' Office. n6 The amended bylaws clarified the original "pension and retirees" restrictions to limit residency to persons that:
Must be a bona fide recipient of an annuity or a pension.
Must not be less than fifty-five years of age.
Must have no additional permanent occupants of the home (other than [a] spouse) who do not meet the above requirements. n7

n5 DeBriae Dec. Ex. C thereto (RISA Articles of Incorporation). n6 DeBriae Dec. Ex. D thereto (1975 RISA bylaws) n7 Id.

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There is no evidence that any of the homeowners challenged the right of RISA to record and enforce its bylaws at the time of the 1975 amendment. n8

n8 DeBriae Dec., P 5.
B. RISA's [*7] Age Restrictions Are Conditions Of Title.
The Plaintiffs contend that the age restrictions are imposed by RISA. Not so. RISA's rights and duties stem solely from the bylaws - which prior owners agreed to have placed in their chains of title - and the original deed restrictions. RISA did not decide to make Ryderwood a senior community, that decision was made by Senior Estates (via the deed restrictions), and prior owners (who agreed for the bylaws to be recorded with the County). n9 Thus the primary age enforcement mechanism is not some affirmative act of RISA, it is each prior homeowner's agreement to be bound and subsequent right to enforce those restrictions against others. n10 This includes the Plaintiffs here (see subsection C, below) as well as the other 270 homeowners in Ryderwood.

n9 Id. P 6 & Ex. B thereto. n10 Id.
What RISA does do is make sure that prospective homeowners and visitors are aware of those age restrictions. n11 This process involves various components, such [*8] as signage throughout the community stating that it is a "55+ community," regular disclosures to real estate agents that work in the area, and notice to prospective homeowners and visitors who inquire about homes in Ryderwood. n12

n11 Id. P 7. n12 Id.
Pursuant to the bylaws, at least one member of each household must join RISA. n13 RISA enforces this policy as part of the process of collecting monthly dues, a requirement that is also expressly authorized by the deeds and bylaws. n14 If a home sells, or a new resident moves in to a home, RISA will contact the new owners and inform that they at least one resident must join RISA. n15 RISA also updates its records via other informal processes, such as researching property sale records, by visiting homes when new residents arrive, and by notifying real estate agents that all new residents must join RISA. n16 All told, if these methods are not effective, RISA has the right to lien the properties, which it does if monthly dues remain unpaid. n17 [*9]

n13 Id. P 8. n14 Id.; see also Ex. B (sample Senior Estates deed). n15 Id. P 9. n16 Id. n17 Id.

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C. The Plaintiffs Do Not Show They Were Discriminated Against.
The Plaintiffs are Charles and Susan Weaver and Raymond and Deborah Balvage. Neither couple offers any proof they suffered discrimination or were harmed by any alleged act of discrimination. Nor do they offer any evidence that RISA actually discriminated against any family at any time.
The Weavers admit they knew of the age restrictions before they moved to Ryderwood in 2005. n18 Indeed, they admit they moved to Ryderwood because it was a retirement community. n19 In a declaration filed in a lawsuit the Weavers brought against a fellow homeowner to enforce RISA's bylaws (Weaver v. Bichler, Cowlitz County Superior Court No. 05-2-01301-1 (2005)), Charles Weaver attested:
Ryderwood has always been a residential area for retirees, fifty-five years and older.
Central [*10] to the maintenance of the character of this area has been the legally imposed requirements regarding the use of the property under RISA's jurisdiction.
These requirements have been spelled out in [CC&Rs] .. .
In addition, these requirements have been spelled out in the RISA By-Laws. n20

n18 Declaration of Richard D. Ross in Support of Opposition to Motion for Partial Summary Judgment and Motion for Summary Judgment (hereafter "Ross Dec"), Ex. A thereto (Discovery Responses of Charles and Susan Weaver provided in the matter of Weaver v. RISA, Cowlitz County Superior Court No. 07-2-02001-3 (2008)), Response to Interrogatory No. 21 (located behind discovery requests). n19 Id. n20 Ross Dec, Ex. B (Declaration of Charles Weaver in matter of Weaver v. Bichler, Cowlitz County Superior Court No. 05-2-01301-1 (2005).
The Weavers present no proof of any harm nor any proof they meet the definition of "familial status." n21 Although Mr. Weaver alleges he was forbidden from having [*11] his son live with him, no evidence is presented to support this assertion. n22 Further, it is not the basis for Plaintiffs' Complaint or this motion.
n21 Ross Dec. P 4. n22 Ross Dec. P 5.
Raymond and Deborah Balvage have been residents of Ryderwood since 2002. n23 The Balvages admit they knew of the age restrictions before they moved to Ryderwood and admit they were informed of their duty to pay dues. n24 Before purchasing their home, they admit they were advised by real estate agent Clarine Meeks they were required to join RISA and pay monthly dues. n25 Ms. Balvage has also produced a document titled "my complaint," in which she describes her knowledge of the age restrictions, she states:
We thought that this was a 55+ community with requirements and restrictions. We were told that Ryderwood had a town governing body [RISA] with bylaws and covenants that were strictly enforced. Many realtors advertise for their clients and RISA also advertises that it is a 55+ community. Then in

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2008 I [*12] was given evidence to the fact that RISA was operating and practicing discrimination, fraud and had never been a HOPA certified to be 55+ community." n26

n23 Ross Dec. Ex. C thereto (Raymond Balvage "My Complaint" Letter). n24 Id. n25 Id. n26 Ross Dec. Ex. D thereto (Deborah Balvage "My Complaint" Letter).
As damages she claims that her son "lost his ability to claim this residence as a tax right off [sic]." PLA 358. She also seeks specific punishments for members of the RISA board for violating corporate laws and unlawfully attaching bylaws on her properties. Id. Neither Mr. or Ms. Balvage present any specific proof of harm, nor any facts to show they qualify as "familial status."
Finally, in support of their motion, the Plaintiffs provide the Declaration of Mr. Weaver as well as a declaration of their counsel, Joseph Lynam. Neither document attests or refers to any actual act of discrimination.
D. The Weavers' History At Ryderwood.
In support of this motion, [*13] Mr. Weaver declares that he was just a supporter of RISA, that he "held no official position with RISA," and merely "encourage[d] the Board to become HOPA complaint [sic]." Weaver Dec. PP 6, 13 & 14. These responses are disingenuous. In response to discovery propounded by RISA in a prior lawsuit brought by the Weavers against RISA, Mr. Weaver admitted that he served as "Treasurer" from June 22, 2006 to February 28, 2007, that he served as legal liaison to the Board for two different lawsuits, and that he was involved in RISA's efforts or decision to comply with HOPA. n27
n27 Ross Dec. Ex. A thereto, see Answers to Interrogatories 2, 3, 4 and 26.
In fact, Mr. Weaver's role as legal liaison was substantial. Although he alleges that he merely provided information with respect to two ongoing lawsuits that he was party to, documents show his involvement went far beyond that limited role. n28 He advised the RISA board on legal matters outside of those suits, general matters of compliance, and was the point [*14] of contact between RISA and its outside counsel. n29
n28 See DeBriae Dec. PP 11-13; see also id. Exs. E (Weaver email stating he is legal liaison) & F (transcript of presentation to Board by Weaver). n29 DeBriae Dec. P 11.
More pertinently, Mr. Weaver was intimately involved with RISA's decision to conduct the HOPA survey in 2005 and 2006. n30 Indeed, it was Mr. Weaver who originally suggested to RISA's board that it needed to conduct an official HOPA survey (in fact, he is shown to be the author of that document on RISA's computer). n31 Mr. Weaver also directed the RISA volunteers who conducted that survey about what process they should use to collect signatures, what forms of identification were acceptable to verify age, and his interpretation of HOPA requirements. n32

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n30 DeBriae Dec. P 14. n31 Id. n32 Id.
[*15] In September, 2007, Mr. Weaver abruptly resigned from his official role with RISA. n33 Then, in November, 2007,
the Weavers filed suit against RISA in Cowlitz County Superior Court. n34 The allegations made there were identical to those alleged here. Their first cause of action alleged that RISA was not authorized to record and enforce the bylaws or Senior Estates deed conditions. Their second cause of action alleged that RISA's age-restrictions violated the FHA because RISA was not exempt under HOPA.
n33 DeBriae Dec, Ex. G (Weaver Resignation Letter). n34 Ross Dec, Ex. E (Complaint in matter of Weaver v. RISA, Cowlitz County Sup. Ct. No. 07-2-02001-3 (2007)).
The Court ultimately granted summary judgment in favor of RISA. n35 In its oral ruling, the court found:
There was apparently always a requirement, which no one disputes, that in order to have ownership, you must be a bona fide recipient of an annuity or pension, which I think it another way of saying the same sort of thing that [*16] was intended by the 55 year restriction.
[T]he courts seem to accept that for the purpose of enforcing these restrictions, if they're not in the chain of title, they'll nevertheless be enforced if the purchaser had notice that everyone intended it to be a covenant and restriction, that it was intended to run with the land by predecessors in interest. I think that's clearly the case here.
Since 1975 everyone has apparently understood that one of the restrictions on ownership or the ability to purchase . .. was that you must be at least 55.
I don't think there's any question about the intent of forming the community was to have this restriction [of] 55 years of age or older. n36
n35 Ross Dec Ex. F (Excerpts from Oral Order on Motion for Summary Judgment). n36 Ross Dec. Ex. F.
The Weavers have since appealed. At this time no decision had been entered. E. Plaintiffs Allege Harm Because RISA Cannot Discriminate. On November 10, 2009 this suit was filed. With respect to [*17] their Fair Housing Act claim, the Plaintiffs allege that RISA "misled" them into believing that Ryderwood was "HOPA compliant." Complaint, P 30. Specifically, they

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allege that "RISA has wrongfully deceived Plaintiffs and Class members, at the time of the purchase of their homes and/or subsequently, that RISA is HOPA compliant and that RISA's age restrictions are legally enforceable and mandatory." Id. P 38. Plaintiffs do not allege harm from any act of familial status discrimination, they allege harm because, as a result of this alleged deception, "Plaintiffs ... purchas[ed] real property which they would not have purchased (or would have paid less) if they were told the correct facts ...". Id. In other words, their claim is not based on acts of discrimination, but on RISA's alleged misrepresentation that it was compliant with HOPA.
III. QUESTIONS PRESENTED
1. Can the Plaintiffs argue Fair Housing Act violations when they present no evidence they were within the subject class or subject to any type of discrimination?
2. Can the Plaintiffs argue hypothetical Fair Housing Act violations based on policies outside the two year statute of limitations?
3. Does the alleged [*18] failure to comply with HOPA in the year 2000 bar all subsequent efforts to comply with that defense?
IV. EVIDENCE RELIED UPON
This motion is based on the records and pleadings on file herein; the Declaration of Richard D. Ross in support, and all exhibits thereto; and the declaration of Sally-Gene Debriae, and all exhibits thereto.
V. LAW AND ANALYSIS
A. Standard of Review on Summary Judgment.
The Plaintiffs' claims are predicated solely on their allegation that RISA is not compliant with HOPA. But HOPA is not a cause of action, it is merely a defense to claims of discrimination brought under the FHA. See 42 U.S.C. § 3607(b)(1) ("No provision in this subchapter regarding familial status [applies] with respect to housing for older persons."). To establish a claim under the FHA, the Plaintiffs must prove, by a preponderance of the evidence, that RISA discriminated against them. See McDonnell Douglas Corp. v. Green, 411 U.S. 792 802, 93 S.Ct. 1817, 1824, 36 L.Ed 2d 668 (1973). If this is shown, the burden shifts to RISA to rebut that claim, including via affirmative defenses such as HOPA. United States v. City of Hayward, 36 F.3d 832, 837 (9th Cir. 1994). [*19] Unless and until the Plaintiffs show some actual act of discrimination upon which they can show standing, HOPA is merely an inchoate defense.
B. The Plaintiffs Do Not Have Standing.
To demonstrate standing, Plaintiffs must show: (1) a concrete "injury in fact"; (2) a causal connection between the injury and the defendant's conduct; and (3) redressibility. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Standing "must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation." Lujan, 504 U.S. at 561.
The Plaintiffs cannot meet these elements. They provide no evidence that they suffered any injury, economic or otherwise. Nor do they offer any proof that any family suffered from any act of discrimination. They tie no harms to any alleged act by RISA and establish no nexus between their claims and any remedial intent of the FHA. And the remedy they seek (an order ending RISA's age restricted status) would not redress what they claim is their harm (the fact that [*20] RISA cannot discriminate on the basis of age).
1. The Plaintiffs Show No Injury In Fact.

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Plaintiffs present no proof that they suffered from any act of discrimination. Nor do they provide proof that any family suffered from any act of discrimination. The sole basis for Plaintiffs' claim is that RISA must not have been "HOPA compliant" before 2006, otherwise it would not have conducted the survey, and, therefore, Ryderwood's age-restrictive covenants and bylaws "discriminated against families." See Complaint, pp. 7-13. The error in reasoning in this chain of causation is apparent: just because a policy might discriminate does not mean that any actual discriminatory act took place. But even if true, this is not an injury to them. To have standing, they must show they were harmed by some act of discrimination. They do not do so.
Plaintiffs bear the burden of proving injury in fact: "The litigant must clearly and specifically set forth facts sufficient to satisfy these Art. III standing requirements." Whitmore v. Arkansas, 495 U.S. 149, 156, 110 S.Ct. 1717, 1723 (1990). And while standing is broadly interpreted under the FHA, it still demands some proof [*21] of harm:
[The] injury, we have emphasized repeatedly, must be concrete in both a qualitative and temporal sense. The complainant must allege an injury to himself that is "distinct and palpable," as opposed to merely "[a]bstract," and the alleged harm must be actual or imminent, not "conjectural" or "hypothetical."
Whitmore, 495 U.S. at 155-56, 110 S.Ct. at 1723 (1990) (citations omitted).
Plaintiffs' bare allegation that they suffered from some incoherent and hypothetical act of discrimination against other persons simply does not suffice to show they suffered any injury in fact. Indeed, what they claim as harm is that RISA's failure to adopt HOPA will lead families to move to Ryderwood, an event they speculate will reduce property values. This idea is the very antithesis of fair housing act jurisprudence; courts have repeatedly rejected claims that opening housing to protected classes is harm. Furthermore it is not an injury that the FHA's familial status provision was enacted to redress.
Moreover, this allegation is the very essence of a "hypothetical injury." It is hypothetical from an evidentiary basis (they have produced nothing to [*22] show any family was discriminated against) and hypothetical on a causation basis. To arrive at an injury from this allegation, the Court must assume that a future family attempts to move to Ryderwood, is denied, files suit, proves Ryderwood is not HOPA compliant, obtains an order forcing RISA to cease all age restrictions, which lowers their property value.
This chain of hypotheses is not an injury in fact.
2. Plaintiffs Cannot Show A Causal Nexus Between Any Act Of Discrimination And Their Injuries.
Nor can the Plaintiffs tie any act of RISA to these theoretical claims. Although standing under the FHA is broad, it is not limitless. "In order to satisfy Art. III, the plaintiff must show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant." Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 98, 99 S. Ct. 1601, 1607 (1979) (emhasis added); see also Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205, 208, 93 S.Ct. 364, 34 L.Ed.2d 415 (1972) (white tenants had standing as "aggrieved persons" in challenge to landlord's race discrimination due to "loss of important [*23] benefits from interracial associations."). Here Plaintiffs cannot meet this burden. Their claim rests entirely on the notion that RISA failed to comply with HOPA and, thus, may not be able to assert the defense in the future. Yet even this theory is merely hypothetical, it simply assumes that RISA did discriminate prior to 2006. There is no proof of this act.
Moreover, even if they did produce evidence of some act of discrimination, this would not be sufficient. The FHA provides that only "aggrieved person[s] may commence a civil action in an appropriate United States district court." 42 U.S.C. § 3613(a)(1)(A). The FHA defines an "aggrieved person" as one who:
(1) claims to have been injured by a discriminatory housing practice; or

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(2) believes that such person will be injured by a discriminatory housing practice that is about to occur."
Id. § 3602(I).
The Plaintiffs would not meet this showing even if they were to offer some proof of past discrimination. Their argument would still depend upon some future act of discrimination that results in a suit in which a future court holds that RISA abandoned its right to assert HOPA. This [*24] is not a causal nexus to a concrete and tangible act of discrimination.
Nor is this suit brought to vindicate discrimination against others. Although courts have recognized that plaintiffs may - in certain circumstances - bring suit for violations suffered by others, Plaintiffs must show they: "(1) suffer[ed] actual injury as an ancillary effect of present or imminent discrimination against a protected class member; and (2) challenge[] the discriminatory policy on behalf of that class member." Wasserman v. Three Seasons Ass'n No. 1, Inc., 998 F. Supp. 1445, 1446-47 (S.D. Fla. 1998). Neither element is shown. The first element fails for the same reason they are not aggrieved parties: their theoretical harms do not flow from any present or imminent act of discrimination. The second element fails because these claims are not brought to vindicate the rights of any person with familial status. The Plaintiffs offer no argument that they hope for a greater stock of family housing. In fact, they argue that a greater stock of family housing as the basis for their harm.
An example of the tie required to assert third-party standing is Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205, 208, 93 S.Ct. 364, 34 L.Ed.2d 415 (1972). [*25] There, the Supreme Court held that white tenants had standing to challenge a landlord's race-based discrimination against others because the white tenants suffered loss of social benefits of an integrated community, missed business and professional advantages, and stigmatization. No such stigmatizing impact is alleged here. On the other hand, in Wasserman v. Three Seasons Ass'n No. 1, Inc., 998 F. Supp. 1445, 1447-48 (S.D. Fla. 1998), the court held that a childless couple who refused to sign a promise to vacate an apartment if they became pregnant could not assert standing, even on behalf of others, because they could not identify any actual person that suffered familial status discrimination. As the Wasserman court held: "[s]tanding requires a sufficient nexus between a plaintiff's injury and the allegedly illegal actions of a defendant." Wasserman, 998 F. Supp. at 1446-47.
The point of these decisions is that although Plaintiffs may contend that this claim is brought to right some FHA wrong, that ipse dixit is not enough. They must be able to tie some actual injury in fact to some actual act of discrimination. As the Wasserman court held: [*26]
If the Court were to find that Plaintiffs had standing as "aggrieved persons," it would have to come to the overbroad conclusion that philosophical disagreement with a policy alone confers standing to challenge the policy, or the unlikely conclusion that the potential to become members of a protected class gives standing to challenge discrimination against that class, in the absence of any evidence of actual discrimination against class members.
The leading cases on standing as "aggrieved persons" under the FHA make clear that the non-class member must have a sufficient stake in or nexus with the controversy and that a stake in the controversy is demonstrated when the non-class member suffers an ancillary injury as a result of the defendant's tangible discrimination against protected class members.
While the Court is cognizant that Defendant's policy might one day have the effect of discriminating on the basis of familial status, Plaintiffs' injury simply does not have a sufficient nexus with any actual discrimination, and thus Plaintiffs lack the standing to prevent such a contingency from occurring.
Wasserman, 998 F. Supp. at 1448 (emphasis [*27] added).
The Plaintiffs do not meet this standard. They do not cite any actual act and cannot tie their injuries to any tangible

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act of discrimination. Indeed, theirs is not even a "philosophical disagreement" with RISA's age restrictions, it is a claim that RISA may not be allowed to assert HOPA in the future, thus causing them harm. See Complaint P 38 ("RISA has wrongfully deceived Plaintiffs [into believing] that RISA is HOPA compliant and that RISA's age restrictions are legally enforceable and mandatory."). This is not an FHA claim.
3. Plaintiffs Harms.Are Not Redressable.
Finally, Plaintiffs must show a "'substantial likelihood' that the requested relief will remedy the alleged injury in fact." Vermont Agency of Natural Resources v. United States ex rel. Stevens, 529 U.S. 765, 771 (2000). Plaintiffs cannot meet this standard. As redress, Plaintiffs seek an order terminating RISA's right to enforce HOPA. While this would theoretically rectify an injury in fact caused by RISA's act of discrimination, this is not what Plaintiffs claim caused them harm. Plaintiff's "injury in fact" is the diminution in home value they allege will result if families move [*28] to Ryderwood. Thus, what they seek as their "remedy" will, in fact, perfect their claim for damages. See Steel Co., 523 U.S. at 107, 118 S.Ct. at 1019 ("Relief that does not remedy the injury suffered cannot bootstrap a plaintiff into federal court; that is the very essence of the redressability requirement."). Summary judgment is appropriate.
D. Plaintiffs Claim Injuries From Acts Outside The Statute of Limitations.
Plaintiffs also cannot point to when their theoretical acts of discrimination took place, asserting that they happened only at some point between 2000 and 2006. In any event, the FHA provides that any claim must be brought "not later than 2 years after the occurrence or the termination of any alleged discriminatory housing practice." 42 U.S.C. § 3613(a)(1)(A). This Complaint was filed on November 10, 2009. Thus, any acts committed in that time frame - even if assumed - do not satisfy the statute of limitations.
Nor can Plaintiffs rely on their premise that they were "misled" because RISA claimed the right to rely on HOPA. For one, they offer no proof to show that RISA misled them by contending it was "HOPA compliant." And [*29] two, even if they did, this would not state a claim under the FHA. FHA claims redress discrimination. HOPA is merely a defense to actionable claims. Here, any knowledge necessary to prove an FHA claim was known by both the Weavers (who moved to Ryderwood in 2005) and the Balvages (who moved to Ryderwood in 2002) well before the statute of limitations expired. Indeed, both couples admit they were aware of the alleged discriminatory behavior when they moved to the town. Thus both were on notice of the conduct that would form the basis for their FHA claim.
E. RISA Is Exempt Under HOPA.
Finally, Plaintiffs interpretation of HOPA is simply wrong. Their theory that the failure to comply with HOPA in 2000 negates any future right is unsupported and illogical.
1. The History of HOPA.
HOPA was passed by Congress at the same time as the familial status provision was added to the Fair Housing Act, 1988. In 1995 Congress amended the Act in order to prevent excessive litigation and "protect senior housing." 64 Fed. Reg. 16325. n37 The legislative history to the amendment reflects Congress's belief that both senior housing and family housing were worthy of protection, [*30] "[t]he legislation strikes a reasonable compromise - protecting the rights of families with children and the security and peace of mind of senior citizens." Cong. Rec. H4360 at H4360 (Rep. Canady). Taken together, the FHA and HOPA "protect families with children while still 'fully protect[ing] the rights of senior citizens who live in retirement communities, and ... allow[ing] those communities to exclude families with children if they so choose.'" Taylor v. Rancho Santa Barbara, 206 F.3d 932, 936 (9th Cir. 2000) (citing 134 Cong. Rec. H4603 at *H4607 (daily ed. June 22, 1988).)

n37 Ross Dec., Ex. G (HUD Implementation Guidelines).

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Although exemptions to the FHA are generally interpreted narrowly, Courts recognize that HOPA should be interpreted more broadly to comport with Congress's concerns to "protect retirement communities." As noted in Deer Hill Arms II Ltd. v. Planning Comm'n of City of Danbury, 239 Conn. 617, 625, 686 A.2d 974 (1996), "the legislative history [*31] is replete with expressions of congressional concern on protecting choice of living in housing of older persons ...". Thus a "flexible fact specific inquiry must be made to determine whether the exemption is applicable so that these legislative goals may be achieved." Id, at 625-26. In this regard, whether a community is in compliance must focus on the "intent" of the community, rather than on rote adherence to strictly delineated criteria and timelines. See Massaro v. Mainlands Section 1 & 2 Civic Ass'n, Inc., 3 F.3d 1472, 1477 (11th Cir. 1993). As the Massaro court noted:
As Judge Learned Hand stated, statutes 'should be construed, not as theorems of Euclid, but with some imagination of the purposes which lie behind them.'
Id. (citing Lehigh Valley Coal Co. v. Yensavage, 218 F. 547, 553 (2d. Cir. 1914).
Plaintiffs' interpretation violates that edict. It places form over substance by asking this Court to hold that a 57 year old retirement community should cease to be by virtue of a strained interpretation that furthers no goal of either HOPA or the FHA. This is not warranted.
2. The Transition Period Does [*32] Not Bar Subsequent Efforts To Rely On The HOPA Defense.
Plaintiffs argue that RISA cannot rely on HOPA because it failed to show compliance as of the year 2000. See, e.g., Complaint PP 33-34 (Plaintiffs do not contest that RISA met the 80% requirement). While they admit that HUD guidelines expressly permit a community to become compliant after the transition period passes, they allege that RISA cannot do so because it engaged in unspecified "acts of discrimination." This is baseless.
Nothing in the FHA, HOPA, or the HUD guidelines states that the HOPA defense is lost to entities that fail to comply at some point in the past. Indeed, the statute expressly authorizes later compliance and holds that past failures outside the statute of limitations period are irrelevant. As set forth in HUD's Question and Answers Regarding HOPA, a community is entitled to rely on the exemption if in compliance as of the date of the alleged act of discrimination:
Question 31: If an individual files a complaint based on familial status and the housing community/facility claims the exemption as a defense, who has the burden of proving, that the community/facility is in compliance with HOPA [*33] requirements?
Answer: The community/facility housing provider has the burden of proving that it was in compliance with HOPA requirements on the date of occurrence of the alleged act or incident of discrimination? n38
n38 Ross Dec. Ex. H (HUD Q&A).
To support their argument, the Plaintiff cite to the transition period authorized by HUD; arguing that the failure to comply within that time frame forbids any future compliance. This extrapolates why the transition period was enacted: to allow communities that were not then 80% comprised of persons aged 55 and older to discriminate in order to reach that threshold. See 100 C.F.R. 308 & 64 Fed. Reg. 16326. Per that provision, even if a community did not become compliant by the end of that period, its otherwise discriminatory actions were privileged. Id. The provision mentions

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nothing about communities that are otherwise compliant but modify their programs to ensure compliance.
The sole support Plaintiffs cite to for their [*34] position is a March 6, 2006 HUD letter discussing HOPA conversion. Whether this letter constitutes "authority" is questionable. But in any event, it is not apropos to this case. As the letter makes clear, conversion takes place when a community below the 80% threshold reaches that level, e.g., once "80 percent of its units are occupied by at least one person 55 years of age or older" the community can adopt HOPA. See March 6, 2006 letter, p.2. This does not support the Plaintiffs' position. All that this letter states is that an otherwise non-compliant community that was, for example, 78% populated by 55 and older, cannot convert to compliance by evicting families or denying them housing.
This is not what is at issue. Here, Plaintiffs do not allege that Ryderwood was below that threshold, they only argue that RISA failed to meet the intent and verification elements of HOPA. See Complaint PP 33-34 (alleging that RISA failed to comply with HOPA under the "intent" and "verification" elements). Nor would such an argument be reasonable, when Ryderwood conducted its 2007 survey, the results showed it was 100% compliant when vacant and non-verifiable homes were excluded and 92% [*35] compliant when those homes were counted as "non-compliant." Instead, what Plaintiffs complain of are the evidentiary aspects of HOPA, verification and age certification. These are not elements of discrimination, they are elements of proof relevant to show compliance with HOPA. This is not a "conversion" issue, it is a compliance issue.
Moreover, to rely upon this document leads to absurd results. If Plaintiffs argument is correct, a previously non-compliant community can enact HOPA policies once it happens to reach the 80% threshold yet Ryderwood can never assert HOPA because it corrected deficiencies in its verification process. This is not justified.
RISA bears the burden to show compliance when an actual act is committed. It does not have any duty to show compliance at all times in the past, particularly where the Plaintiffs do not even allege any actual act of discrimination. This type of formalistic interpretation of the statute is not supported by the law or any regulation. Nor should it be. Their theory exalts form over substance and relies on layers of speculation all to attain an end that runs directly counter to the reason why HOPA was adopted: to "protect retirement communities. [*36] "
3. Ryderwood's Pre-2006 Policies Complied With HOPA.
Finally, the Plaintiffs are simply wrong. Although Mr. Weaver recommended that RISA adopt more stringent policies in 2006 to comply with HOPA, this alone does not lead to the inference that RISA was non-compliant before that date. RISA's records show that it met the spirit and intent of the rule well before that 2006 survey.
80% Occupied By Persons Aged 55 and Older. Plaintiffs do not contest that Ryderwood was at least 80% occupied by persons aged 55 and up before 2006. Indeed, the result of the 2006 survey was that Ryderwood was 92% occupied by persons aged 55 and over. Intent To Operate As A Retirement Community. HUD regulations specify seven criteria to show whether a community has the requisite intent to operate as "housing for older persons." The focus of those factors is on the community's intent, e.g., whether it intends to operate as a 55+ community. See e.g., 64 Fed. Reg. 16327 ("HUD does not intent to impose any rigid requirements on indicating intent. Section 100.306 only speaks to relevant factors to be considered and the examples simply illustrate what could satisfy the requirement. [*37] Intent is judged based on the common understanding of the word and whether the community or facility has established through various means whether they intend to operate housing for persons who are 55 years of age or older.").
This intent has been clear since Ryderwood was formed. Ryderwood was created as a retirement community subject to deeds that reserved occupancy to "bona fide retirees and pensioners." The RISA bylaws were amended in 1975 to further restrict occupancy to those at least 55 years of age and older. Those bylaws are recorded with the County and appear in every owner's chain of title. When homes in the community are sold, these restrictions appear on their title reports and disclosures. When they move in, new owners are required to sign a membership form, which requires them to agree to abide by all RISA bylaws and policies. Since 1996, all new residents are required to attest to

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their age when signing the certificate of membership with RISA, along with abide by those age restrictive policies. While HUD regulations permit up to 20% of the homes to be occupied by persons under the age of 55, RISA has long maintained a stringent 100% policy of compliance (except for [*38] spouses). RISA has produced correspondence from the 1970's, 80's, 90's and 00's showing that it strictly enforces that policy. The age restrictions are disseminated to local real estate agents who regularly cite that fact on the multiple listing service. Signs posted throughout the property state that residency is limited to those 55 and over.
Finally, documents presented by the Plaintiffs show that these elements were well disseminated. As noted above, Charles Weaver signed a declaration attesting that: "Ryderwood has always been a residential area for retirees, fifty-five years and older." Deborah Balvage states in her declaration that, before she purchased her home, "we thought that this was a 55+ community with requirements and restrictions." And Raymond Balvage attests that he and his wife "were told by the real estate agent Clarine Meeks that Ryderwood was a "55+ community." All of these persons moved to Ryderwood during the period in question.
Age Identification. Plaintiffs allege that RISA did not adopt provisions necessary to certify the ages of its residents until 2006. This is false. Every home in Ryderwood is subject to the bylaws and deed conditions that require [*39] all owners to abide by the 55 and over provision. This is a type of "self-certification" that HUD regulations specifically endorse as sufficient. See Appendix to 100 C.F.R. 307(d)(7), Example 1 ("all new leases, new purchase agreements, or new applications contain a provision directly above the signatory line .. . asserting that at least one occupant of the dwelling will be 55 years of age or older"). Furthermore, in 1996, RISA's membership form was modified to require each new resident to attest to his or her age. n39 This form of self-attestation of age is specifically authorized as sufficient to comply with HOPA's age requirements as well. See 64 Fed. Reg. 16327 ("[a] self certification of his or her age by an individual will be adequate to meet this [age verification] standard.").

n39 DeBriae Dec, Ex. H (Weaver membership certificates).
Verification of Compliance. Plaintiffs also allege that RISA did not comply with HUD's age verification requirements until 2006. This is not [*40] accurate. HOPA regulations do not demand that the community conduct a "HOPA survey," they merely require that the community regularly update its records in order to ensure that the homes are not occupied by new residents. As Regulation 100.307(b) states:
(c) The procedures described in paragraph (b) of this section must provide for regular updates, through surveys or other means, of the initial information supplied by the occupants of the housing facility or community. Such updates must take place at least once every two years.
Although RISA adopted Mr. Weaver's suggestions regarding more stringent compliance documentation, the regulation make clear that verification can be made by "other means." Well before Mr. Weaver's advice was taken, RISA engaged in a litany of other policies and procedures designed to ensure that Ryderwood remained at least 80% 55 and older. This included regular upkeep of an active rolodex listing the residents of all homes, an annual neighborhood phone book update done by a RISA volunteer who doorbelled each home to ensure that the residents matched up with RISA's records, and by notice provided by Ryderwood homeowners, who actively monitor [*41] the community to ensure that it remains 55 and older. n40 This multi-faceted process of verification was complimentary to the covenants and bylaws, which also ensured that all residents met the age restrictions. Indeed, that step alone is listed by HUD regulation as an example of what steps are necessary in order to verify the age requirements are met:
Example 2: A homeowners association amends its [CC&R's], and records them at the appropriate government recording office. The amendments require applicants to state whether at least one occupant is 55 years of age or older.

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Appendix to Regulation 100.307(e), Example 2.
n40 DeBriae Dec. PP 18-21; see also Exs. J (sample rolodex card) & K (2006 Ryderwood phone directory).
What this history shows is that RISA and Ryderwood had the requisite intent to be a retirement community. That is all that is required. See 42 U.S.C. § 3607(b)(1) (exemption applies to "housing for older persons" as defined by the statute). [*42]
V. CONCLUSION
Although phrased as FHA claims, Plaintiffs' allegations are anything but. Their theories violate nearly all potential elements of an FHA claim for a simple reason: they did not suffer any act of discrimination. Plaintiffs' motion should be denied.
DATED this 29th day of March, 2010.
BETTS, PATTERSON & MINES, P.S.
By /s/ Steven Goldstein Steven Goldstein, WSBA #11042 Richard D. Ross, WSBA #34502 Attorneys for Defendants BETTS PATTERSON & MINES, P.S. One Convention Place 701 Pike Street, Ste. 1400 Seattle, WA 98101 206-292-9988 sgoldstein@bpmlaw.com rross@bpmlaw.com
Certificate of Service
I hereby certify that on this 29th day of March, 2010, the foregoing was electronically filed with the Clerk of the Court using the CM/ECF system, which will send notification of such filing to all parties of record and to The Honorable Benjamin H. Settle.
/s/ Richard D. Ross BETTS, PATTERSON & MINES, P.S. One Convention Place 701 Pike Street, Suite 1400 Seattle, Washington 98101-3927 Telephone: 206-292-9988 Facsimile: 206-343-7053 E-Mail: rross@bpmlaw.com
DECLARATION OF RICHARD D. ROSS [*43] IN SUPPORT OF RISA'S OPPOSITION TO MOTION FOR PARTIAL SUMMARY JUDGMENT AND MOTION FOR SUMMARY JUDGMENT

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I, Richard D. Ross, am competent to testify to the matters set forth herein and make this declaration of my own personal knowledge and belief.
1. I am an attorney with Betts, Patterson & Mines, P.S. and one of the primary attorneys in charge of representing the Defendant in this matter, the Ryderwood Improvement and Service Association ("RISA").
2. Attached hereto at Exhibit A is a true and correct copy of Discovery responses provided by the Weavers in the matter of Weaver v. RISA, Cowlitz County Superior Court No. 07-2-02001-3(2007).
3. Attached hereto at Exhibit A is a true and correct copy of the Declaration of Charles Weaver filed in the matter of Weaver v. Bichler, Cowlitz County Superior Court No. 05-2-01301-1 (2005).
4. I have reviewed all discovery provided by Plaintiffs in this matter. Neither the Weavers nor the Balvages provide any evidence that they were discriminated against on any basis protected under the FHA.
5. In their Complaint, the Plaintiffs allege that Mr. Weaver's son was denied the right to live with them. This same allegation was made in the prior [*44] State court matter. No documents have been provided describing this allegation, nor have any documents been provided showing his son's name, date of birth, or whether the Weavers have custody.
6. Attached hereto at Exhibit C is a true and correct copy of Plaintiff Raymond Balvage's letter entitled "My Complaint," provided by Plaintiffs in response to discovery requests and numbered PLA292.
7. Attached hereto at Exhibit D is a true and correct copy of Plaintiff Deborah Balvage's letter entitled "My Complaint," provided by Plaintiffs in response to discovery requests and numbered PLA320.
8. Attached hereto at Exhibit E is a true and correct copy of the Complaint filed by the Weavers in matter of Weaver v. RISA, Cowlitz County Sup. Ct. No. 07-2-02001-3 (2007).
9. Attached hereto at Exhibit F is a true and correct copy of the excerpts from the Court's oral ruling in response to RISA's motion for summary judgment in the matter of Weaver v. RISA, Cowlitz County Sup. Ct. No. 07-2-02001-3 (2007).
10. Attached hereto at Exhibit G is a true and correct copy of Housing and Urban Development Implementation Guidelines Re: HOPA.
11. Attached hereto at Exhibit H is a true and correct [*45] copy of Housing and Urban Development Questions and Answers Regarding HOPA Compliance.
12. I declare the foregoing to be true and accurate to the best of my knowledge under penalty of perjury.
/s/ [Signature] Richard D. Ross
Executed this 29th day of March, 2010, at Ryderwood, Washington.
[SEE EXHIBIT A IN ORIGINAL]
[SEE EXHIBIT B IN ORIGINAL]
[SEE EXHIBIT C IN ORIGINAL]
[SEE EXHIBIT D IN ORIGINAL]

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[SEE EXHIBIT E IN ORIGINAL] [SEE EXHIBIT F IN ORIGINAL] [SEE EXHIBIT G IN ORIGINAL] [SEE EXHIBIT H IN ORIGINAL] [SEE DECLARATION OF SALLY-GENE DEBRIAE IN SUPPORT OF RISA'S OPPOSITION TO MOTION FOR PARTIAL SUMMARY JUDGMENT AND MOTION FOR SUMMARY JUDGMENT IN ORIGINAL]

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 Page 1
View U.S. District Court Opinion View Original Source Image of This Document
RAYMOND T. BALVAGE and DEBORAH A. BALVAGE, husband and wife, and CHARLES E. WEAVER and SUSAN M. WEAVER, husband and wife, on their own
behalf and on behalf of a class of similarly situated individuals, Plaintiff, v. RYDERWOOD IMPROVEMENT AND SERVICE ASSOCIATION, INC., a
Washington non-profit corporation, Defendant. ASE NO. C09-5409BHS
UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON, TACOMA DIVISION
2009 U.S. Dist. Ct. Motions 628017; 2010 U.S. Dist. Ct. Motions LEXIS 44244 April 1, 2010
Motion for Summary Judgment VIEW OTHER AVAILABLE CONTENT RELATED TO THIS DOCUMENT: U.S. District Court: Motion(s) COUNSEL: [*1] LANE POWELL PC, Joseph E. Lynam, WSBA No. 12728, Abraham K. Lorber, WSBA No. 40668, Attorneys for Plaintiffs, Seattle, WA. JUDGES: THE HONORABLE BENJAMIN H. SETTLE TITLE: Plaintiffs' Reply In Support Of Motion For Partial Summary Judgment Re Defendant's Violation Of FHA And Non-Compliance With HOPA Exception TEXT: I. INTRODUCTION
Plaintiffs' Motion raises three specific issues upon which Plaintiffs' seek partial summary judgment. The first issue, that RISA engaged in discrimination on the basis of familial status, is not disputed in RISA's Opposition and has previously been admitted to by RISA. Accordingly, the Court should grant partial summary judgment for Plaintiffs on the first issue. Of the remaining issues, resolution of the second issue, that RISA does not qualify for the FHA's HOPA exception (the "HOPA Issue"), is the main purpose of Plaintiff's Motion.
In the Joint Status Report, RISA stated to the Court the "parties agree that the HOPA issues should be resolved first in this matter and largely involve questions of law." Dkt. 8, at p. 3. In the Joint Status Report, the parties submitted a plan to the Court which called for resolution of the HOPA Issue first. Id. [*2] In Plaintiffs' Motion, Plaintiffs assert RISA is not HOPA compliant presently because it wrongfully discriminated against families with children while attempting to convert to HOPA compliance. As explained below, Plaintiffs have met their burden for the Court to grant

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partial summary judgment on the HOPA Issue. RISA attempts to confuse the Court with a recitation of irrelevant factual allegations. For example, RISA includes historical information about certain bylaws and covenants which it alleges govern real property in Ryderwood. These bylaws and covenants, however, are unenforceable if they violate the FHA. Whether they violate the FHA depends on resolution of the HOPA Issue.
In its Opposition, RISA refers to possible ultimate defenses to Plaintiffs' claims that RISA violated the FHA (the third issue in Plaintiffs' Motion). These defenses are a lack of standing and the statute of limitations. As discussed below, these defenses are without merit. However, final resolution of the application of these defenses is not necessary for the Court's determination regarding the HOPA Issue. Thus, while Plaintiffs contend they are entitled to partial summary judgment regarding all three issues [*3] raised in Plaintiffs' Motion, Plaintiffs' reiterate the importance of the Court addressing the HOPA Issue, as discussed in the Joint Status Report.
II. PLAINTIFFS' REPLY
A. RISA Is Not Presently HOPA Compliant Because Its Discrimination During Its Attempted Conversion Rendered Such Conversion Unsuccessful.
In its Opposition, RISA does not dispute that from 1992 until 2006 it deliberately ignored the instructions it received from HUD regarding FHA and HOPA compliance. It is against this backdrop of willful non-compliance that RISA's claim of HOPA compliance must be judged.
1. RISA Has Never Successfully Converted to HOPA Compliant Status.
It is undisputed that it was not until the spring of 2006 that RISA decided to try to become HOPA compliant. Not having been HOPA compliant up until this point, how might RISA properly go about converting to HOPA compliant status? Prior to May 3, 2000, a non-compliant community could engage in familial status discrimination while attempting to fulfill the statutory and regulatory requirements of HOPA. 24 C.F.R. §§ 100.305; 2006 HUD Memo (Exh. D to Lynam Decl.), at D20-D21. However, after May 3, 2000 when this transition [*4] period ended, the conversion rules became much stricter. 2006 HUD Memo (Exh. D to Lynam Decl.), at D20-D21. A community which wishes to become HOPA compliant after the transition period ended can do so, but during its conversion it cannot discriminate. Id.
A community must organically achieve or maintain the 80% threshold before it begins to discriminate. In other words, a community cannot discriminate while converting to HOPA compliant status. Plaintiffs have demonstrated that RISA was not HOPA complaint before the spring of 2006. Thus, RISA's attempt to convert to HOPA compliant status was governed by the stricter, post-transition period rules. As it is undisputed that RISA engaged in familial status discrimination before, during, and after its attempted conversion, that conversion failed as a matter of law. Because RISA never successfully converted to HOPA compliance in 2006, its continued discrimination renders it non-compliant today. Thus, Plaintiffs respectfully request that the Court grant partial summary judgment in favor of Plaintiffs on the HOPA Issue. n1

n1 RISA contends Plaintiffs' arguments regarding the HOPA transition period renders it impossible for a community to become HOPA compliant after the transition period ends. Dkt. 17, at p. 18. This contention is without merit. Both the HUD Memo and the court in the Simovits case explain how a community can become HOPA compliant after the transition period. 2006 HUD Memo (Exh. D to Lynam Decl.), at D20-D21; Simovitz V. Chanticleer Condominium Assoc., 933 F.Supp. 1394, 1403 (N.D. ILL. 1996). As suggested by the remedy fashioned by the Simovits court, RISA should have ceased all discrimination for two years (the statutory limitations period) and then conducted an age-verification survey. Simovits, 933 F.Supp. at 1403. If after this period of non-discrimination, Ryderwood was still 80% 55 and older, RISA could then publish policies and

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procedures limiting residency to persons 55 years of age or older and begin complying with the other requirements of HOPA.
[*5]
2. RISA Did Not Comply With HOPA Before 2006.
Despite RISA's failure to dispute that beginning in 1992 it deliberately ignored instructions it received from HUD regarding FHA and HOPA compliance, RISA attempts to argue that it was in fact HOPA compliant before 2006. Dkt. 17, at p. 20. RISA contends that its pre-2006 policies "met the spirit and intent of the rule." n2 Dkt. 17, at 20. These contentions by RISA fail. Exceptions to the FHA are strictly construed. Massaro v. Mainlands Section 1 & 2 Civic Ass'n, Inc., 3 F.3d 1472, 1475 (11th Cir. 1993) If RISA is to qualify for HOPA, it is obligated to meet the letter of the rule and not just its spirit.

n2 RISA quotes Massaro quoting Learned Hand for the proposition that statutes should be construed with "some imagination of the purposes which lie behind them." Dkt. 17, at p. 18. Plaintiffs note that the "imagination" referred to by the Massaro court was its decision to allow defendant, which was not technically a homeowner's association, to attempt to qualify for the HOPA exception. The Massaro court expressed no permissiveness, however, with respect to defendant's actual compliance with provisions of HOPA. Massaro, 3 F.3d at 1477.
[*6]
Though RISA admits it never attempted to comply with HOPA and did not complete an allegedly sufficient age-verification survey until at the earliest 2006 (and Plaintiffs adamantly dispute RISA has ever completed a valid survey), RISA contends it complied with HOPA's age-verification requirements before this time through a hodgepodge of half measures such as phone book updates and the keeping of a rolodex. Dkt. 17, at p. 23. However, 24 C.F.R. § 100.307(a) requires that a community responding to a complaint under the FHA must produce verification of compliance with the 80% requirement through "reliable surveys and affidavits." RISA has failed to do this. RISA admits it did not complete its first allegedly sufficient survey until April 2006. RISA Rule 30(b)(6) Deposition (Exh. A to Lynam Decl.), at A7-A8 (p. 18, l. 20 - p. 19, l. 9). As for reliable affidavits, the Declaration of Sally Gene De Briae submitted in support of RISA's Opposition provides no competent evidence that reliably verifies that RISA met the 80% requirement. See generally Dkt. 19. Although RISA may have obtained age-verification information when new residents officially purchased property in Ryderwood, this [*7] initial inquiry cannot, as a matter of law, fulfill HOPA's requirement that a housing community "provide for regular updates . . . . [which] must take place at least once every two years." 24 C.F.R. § 100.307(c). RISA's pre-2006 "procedures" provide no allowance for renters, change of owner by inheritance, etc. Dkt. 19, at PP 18-21, pp. 4-5.
Indeed, a review of the information submitted by RISA demonstrates that, even if initial age information was taken down, no regular and reliable updates were performed. Id. Quite simply, prior to 2006, RISA made no attempt to create a documentary record which would allow an objective reviewer to verify that, at any given point prior to 2006, 80% of the households in Ryderwood were actually occupied by someone 55 years of age or older. Because RISA bears the burden of proving HOPA compliance, this failure to generate a record means RISA could not have been compliant prior to 2006 as a matter of law.
B. Plaintiffs' Have Standing to Bring FHA Claims Against RISA.
1. Plaintiffs' Burden to Prove Standing for the HOPA Issue is Different from its Burden to Prove Standing for Issue 3.

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As RISA states in its Opposition, HOPA [*8] is a defense to a claim of familial status discrimination under the FHA. Dkt. 17, at p. 3. With their second claim for relief, Plaintiffs seek summary judgment ruling that this defense does not apply (the "HOPA Issue"). Dkt. 14, at 3. Although a plaintiff ultimately has the burden of proving standing at trial, "allegations of injury resulting from the defendant's conduct may be sufficient to meet standing requirements, at least at the pleading stage." 15 Moore's Federal Practice, § 101.31 (Matthew Bender 3d ed.) (citing Lujan v. Defenders of Wildlife, 497 U.S. 871, 889, 110 S. Ct. 3177, 111 L. Ed. 2d 695 (1990)). RISA has not asked the Court for an affirmative ruling that Plaintiffs lack standing, they have only raised it as a defense to Plaintiffs' Motion. See generally Dkt. 17. Thus, while Plaintiffs certainly need to prove standing as a matter of law to prevail on Issue 3 (that RISA has violated the FHA), Plaintiffs need only meet the pleading requirements of standing to obtain summary judgment on the HOPA Issue.
Plaintiffs have clearly pled facts sufficient to give them standing to seek partial summary judgment on the HOPA Issue. Plaintiffs have pled [*9] a long list of injuries, including but not limited to:
. RISA wrongfully filed improper and inaccurate liens and bylaws on Plaintiffs' real property. Dkt. 11, at 7, P 37.
. RISA prevented Plaintiffs from selling their homes. Id.
. RISA incited other residents of Ryderwood to harass plaintiffs and retaliate against them. Id., P 40.
. RISA posted Plaintiffs' names and addresses on a community bulletin board, further subjecting Plaintiffs to harassment. RISA Rule 30(b)(6) Deposition (Exh. B to Second Lynam Decl.), at B13 (p. 62, l. 19-p. 63, l. 7)
. RISA forbid Plaintiff Chuck Weaver's son from living with him in Ryderwood. Plaintiffs Discovery Responses (Exh. A to Second Lynam Decl.), at B13-14
Not only have Plaintiffs met the standing requirements to obtain partial summary judgment on the HOPA Issue, as shown below, Plaintiffs have proven standing as a matter of law sufficient for the Court to grant partial summary judgment on the FHA Violation Issue as well.
2. RISA Admits in the Joint Status Report That an Actual Controversy Exists as to Whether Or Not it is HOPA Complaint.
Title 28 section 2201 of the United States Code provides that: [*10]
In a case of actual controversy within its jurisdiction . . . . any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought.
Here it is undisputed that an actual controversy exists as to whether or not RISA is HOPA compliant. Indeed, in the parties' Joint Status Report, RISA states:
The dispute between the parties has existed for several years . . . .
Defendant asserts that [its discrimination on the basis of familial status] is permitted under the HOPA amendment to the FHA and also asserts that it qualifies for this exception. Plaintiffs assert that Defendant is not compliant with HOPA and is not entitled to discriminate. The parties agree that the HOPA issues should be resolved first in this matter and largely involved questions of law.

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Dkt. 8, at 3. Plaintiffs contend RISA "incit[es] its members to harass Plaintiffs and the prospective class for attempting to exercise their rights under the FHA." Id., at p. 2. RISA, stated in the Joint Status Report:
[D]efendant has not [*11] incited anybody to harass plaintiffs, but that plaintiffs and their organization, SWIFFT, have harassed RISA members and damaged the community as a whole by falsely claiming to prospective buyers and others that they do not have to pay RISA dues and that RISA is not a retirement community . . . .
Dkt. 8, at p. 2.
Surely there is an "actual controversy" here worthy of the Court granting declaratory relief. Based on the parties' representations to the Court in the Joint Status Report, it is abundantly clear that an actual controversy exists as to whether or not RISA is HOPA compliant and that resolution of this controversy is of substantial importance to the parties.
3. Standing Under the FHA is Broadly Construed to Effectuate the Act's Important Public Policy Purposes.
In furtherance of the public policy purposes behind the FHA, a plaintiff bringing an FHA claim must only prove the Article III minima elements of standing. Tandy v. City of Wichita, 380 F.3d 1277, 1283 (10th Cir. 2004). The Article III test for standing is: (1) an injury in fact; (2) which is attributable to the defendant's conduct; and (3) which is capable of redress. Id. (citing [*12] Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 119 L. Ed. 2d 351, 112 S. Ct. 2130 (1992)) (other citing references omitted). Where a plaintiff seeks declaratory relief, the injury in fact plaintiff must prove is the likelihood of suffering a future injury. 15 Moore's, § 101.61[6][b] (citing Roe v. Operation Rescue, 919 F.2d 857, 864 (3d Cir. 1990)).
"In light of the clear congressional purpose in enacting the FHA, and the broad definition of 'person aggrieved,' persons who claim to have been injured by a discriminatory housing practice, have standing to litigate violations of the FHA." Comer v. Cineros, 37 F.3d 775, 789 (2nd cir. 1994) (quoting Warth v. Seldin, 422 U.S. 490, 501, 512-513, 45 l. Ed. 2d 343, 95 S. Ct. 2197 (1975)) (internal quotation marks omitted). "In order to have standing to sue under the FHA, the [plaintiffs] need not be victims of discrimination." Simovitz v. Chanticleer Condominium Assoc., 933 F. Supp. 1394, 1400 (N.D. Ill. 1996); see also Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205, 93 S.Ct. 364 (1972) (holding white [*13] tenants have standing to sue for discrimination against nonwhites). "Congress intended to establish a broad set of rights to be free from housing discrimination, and that as a general rule, courts should not erect standing barriers other than the minima required by Article III - to those seeking to vindicate these rights." Smith v. Pacific Properties & Development Corp., 358 F.3d 1097, 1102 (9th Cir. 2003) (holding that testers have standing to sue for violations of FHA prohibition on handicap discrimination).
4. Plaintiffs Suffer Ongoing Injuries Arising Out of Their Inability to Sell Their Homes.
Plaintiffs have suffered a long list of injuries that give them standing to bring claims against RISA. These injuries include, but are not limited to, the fact that Plaintiffs and members of the putative class have attempted to list their homes for sale to the general public but have been rebuffed by real estate agents who will only list their homes as being available to persons 55 years of age or older. Discovery Responses (Exh. A to Second Lynam Decl.), at B14-15. This is an example of the conundrum Plaintiffs find themselves in with respect to any efforts [*14] to sell their homes. Plaintiffs believe RISA is not HOPA compliant and any potential buyer needs to be told the truth regarding RISA's status. The real estate agents are told by RISA to tell potential buyers that RISA is HOPA compliant. Plaintiffs believe potential buyers are being told misrepresentations. What do the Plaintiffs tell potential buyers? Either way they open themselves up to liability. Can Plaintiffs only sell to buyers who are 55 and older? There is complete disagreement on this issue. RISA is saying one thing and having real estate agents repeat it, but Plaintiffs believe another thing and the real estate agents refuse to say it. This is one example of how there clearly is an "actual controversy" which is appropriate for declaratory relief.

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There can be little doubt that these injuries are "fairly traceable to the challenged action of the defendant." Tandy, 380 F.3d at 1283. In its Opposition, RISA admits that it makes "regular disclosures to real estate agents that work in the area" regarding Ryderwood's purported 55 and older status. Dkt. 17, at p. 5. Indeed, the named plaintiffs have been injured by this practice. In September 2007, the Weavers [*15] attempted to list their property for sale with local real estate agents. Plaintiffs' Discovery Responses (Exh. A to Second Lynam Decl.) at B14-15. Although the Weavers wished to advertise their home to all potential buyers, the real estate agents refused to list the home as being available to families with children. Id. The Weavers' home subsequently failed to sell. Id.
Thus, Plaintiffs suffered a real and palpable injury as result of RISA's discriminatory conduct. Until the Court grants or denies the declaratory relief requested by Plaintiffs, Plaintiffs will be faced with the conundrum of not knowing to whom they might sell their homes and what accurate representations to make to potential buyers. Plaintiffs have standing to seek declaratory relief because this injury, and the resulting conundrum, continuously threaten to be repeated anytime a Ryderwood resident (including Plaintiffs) attempts to sell his or her home to a member of the public. As such, Plaintiffs have satisfied their burden of proving standing for the purposes of their Motion.
5. Plaintiffs Suffer Ongoing Injuries Arising Out of RISA's Retaliatory Conduct.
In their Complaint, Plaintiffs allege that [*16] they and the putative class members have suffered harassment and retaliation at the hands of RISA and its members arising out of Plaintiffs' assertion that, among other things, RISA is not actually HOPA compliant. Dkt. 11, at 7-8, P 40. The injuries complained of by Plaintiffs are sufficient to give them standing to sue for relief under the FHA.
At the Rule 30(b)(6) deposition of RISA conducted by Plaintiffs, RISA designee Sally Gene De Briae testified that a RISA board member posted on a RISA controlled community bulletin board a document containing the names and addresses of Ryderwood residents who withdrew from RISA and questioned its ability to restrict residency. RISA Rule 30(b)(6) Deposition (Exh. B to Second Lynam Decl.), at A8-9 (p. 62, l. 19-p. 63, l. 7); Plaintiffs' Discovery Responses (Exh. A to Second Lynam Decl.), at B13. The document is dated March 3, 2008. Bulletin Board Posting (Exh. C to Second Lynam Decl.), at C23. When asked why the document was posted, Ms. De Briae testified that:
I think the board discussed it to some degree, and we were getting questions from other residents, wanting to know if their neighbors were resigning or if they were not paying [*17] dues and who they were. And we thought that we could, you know - could let them know who that was. The next day we were told we couldn't by our attorney, and we removed it, and it has not been done since.
Id., at p. (p. 64, ll. 6-15).
Regardless of whether the document was immediately taken down, the cat was let out of the bag. RISA published a list of names of Ryderwood residents who asserted what they believed to be their rights under the FHA and those residents subsequently suffered harassment and retaliation as a result. Plaintiffs' Discovery Responses (Exh. A to Second Lynam Decl.), at B13. For the purposes of this Motion, the Balvages suffered a particularly cruel form of harassment: they were driven out of their local church by a pastor who whipped up the congregation in retaliation against those parishioners who claimed RISA was unlawfully discriminating. Plaintiffs' Discovery Responses (Exh. A to Second Lynam Decl.), at B22. This pastor's statements included such things as anyone who challenged RISA was to be shunned from the community and the Church (which is what in fact occurred) and these persons were "parasites to the community." Plaintiffs' Discovery Responses [*18] (Exh. A to Second Lynam Decl.), at B12. Additionally, plaintiff Chuck Weaver was forbidden by RISA from having his son live with him at Ryderwood because his son was not 55 years old. Id., at B14-15.
The posting of the list of names and the ensuring harassment continue to cause ongoing injuries to Plaintiffs. Declaratory relief is necessary to clear up the uncertainty as to the legality of RISA's discriminatory policies and to prevent further harassment and retaliation against Plaintiffs and the putative class members.

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C. Plaintiffs' Claims Are Not Barred by the Statute of Limitations
The FHA provides that "[a]n aggrieved person may commence a civil action in an appropriate United States district court or State court not later than 2 years after the occurrence or the termination of an alleged discriminatory housing practice." 42 U.S.C. § 3613(a)(1)(A). The Supreme Court has held "where a plaintiff, pursuant to the Fair Housing Act, challenges not just one incident of conduct violative of the Act, but an unlawful practice that continues into the limitations period, the complaint is timely when it is filed within [the statutory period, running [*19] from] the last asserted occurrence of that practice." Garcia v. Brockway, 503 F.3d 1092, 1097 (9th Cir. 2007) (quoting Havens Realty Corp. v. Coleman, 455 U.S. 363, 380-81, 102 S.Ct. 1114, 71 L.Ed.2d 214 (1982)). Here, RISA has admitted that it continues to discriminate on the basis of familial status through the present day. Dkt. 17., at 4-5. Indeed, RISA admits that its discriminatory policies are "conditions of title." Id., at 4. As such, Plaintiffs injuries arising out of this discrimination are ongoing and are not barred by the statute of limitations.
Additionally, the specific injuries which Plaintiffs have suffered (which give them standing to sue) occurred within the limitations period. In its Opposition, RISA mistakenly states that Plaintiffs filed their complaint on November 10, 2009. Dkt. 17, at 16. Plaintiffs' complaint was actually filed July 8, 2009. Dkt. 1.
Plaintiffs' injuries occurred well within the limitations period. The Weavers were rebuffed by real estate agents in September 2007. Plaintiffs' Discovery Responses (Exh. A to Second Lynam Decl.), at B14-15. RISA posted the names of Plaintiffs and the putative class on bulletin [*20] boards on March 3, 2008. RISA Rule 30(b)(6) Deposition (Exh. B to Second Lynam Decl.), at A8-9 (p. 62, l. 19-p. 63, l. 7); Bulletin Board Posting (Exh. C to Second Lynam Decl.), at C23. Plaintiffs' ongoing injuries include their inability to live with their family members, the harassment they suffer at the hands of RISA members, the continuing clouds on their title, further imposition of liens, etc. Accordingly, Plaintiffs' injuries occurred within the statutory period and/or are ongoing injuries. Thus, RISA's statute of limitations defense fails.
III. CONCLUSION
The main issue presented by Plaintiffs' Motion is whether or not RISA can claim the HOPA exception as a defense to Plaintiffs' claims that RISA violated the FHA. Plaintiffs have shown that RISA cannot claim HOPA as a defense because it wrongfully discriminated during its attempted conversion to HOPA compliance. Plaintiffs assert that they have proven standing and have disproved RISA's statute of limitations defense in such a manner as to allow the Court to grant partial summary judgment on all issues presented in Plaintiffs' Motion, including that RISA violated the FHA. If the Court concludes that RISA may not [*21] obtain partial summary judgment on the FHA violation issue at this time, Plaintiffs respectfully request that the Court grant summary judgment on the other issues presented by Plaintiffs' Motion, including the HOPA issue.
DATED: April 1, 2010
LANE POWELL PC
By /s/ Joseph E. Lynam Joseph E. Lynam, WSBA No. 12728 Abraham K. Lorber, WSBA No. 40668 Attorneys for Plaintiffs Lane Powell PC 1420 Fifth Avenue, Ste. 4100 Seattle, WA 98101-2338 T: 206-223-7000 F: 206-223-7107 Email: lynamj@lanepowell.com

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Email: lorbera@lanepowell.com
CERTIFICATE OF SERVICE
The undersigned certifies under penalty of perjury under the laws of the State of Washington, that on April 1, 2010, the document attached hereto was presented to the Clerk of the Court for filing and uploading to the CM/ECF system. In accordance with their ECF registration agreement and the Court's rules, the Clerk of the Court will send e-mail notification of such filing to the following persons:
Attorneys for Defendant: Steven Goldstein Betts, Patterson & Mines, P.S. One Convention Place, Suite 1400 701 Pike St. Seattle, WA 98101 T: 206-292-9988 Email: sgoldstein@bpmlaw. [*22] com
[[checkmark]] by CM/ECF [] by Electronic Mail [] by Facsimile Transmission [] by First Class Mail [] by Hand Delivery [] by Overnight Delivery
/s/ Joseph E. Lynam Joseph E. Lynam, WSBA No. 12728
LANE POWELL PC 1420 Fifth Avenue, Suite 4100 Seattle, WA 98101-2338 Tel: 206.223.7000 Fax: 206.223.7107 Email: lynamj@lanepowell.com
Attorney(s) for Plaintiffs
SECOND DECLARATION OF JOSEPH E. LYNAM IN SUPPORT OF PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT
I, Joseph E. Lynam, hereby declare as follows:
1. I am an attorney representing the Plaintiffs in the above-captioned lawsuit. I am a citizen of the United States of America, am over 18 years old, am competent to testify herein, and have personal knowledge of the facts stated below. This declaration is submitted in support of Plaintiffs' Motion For Partial Summary Judgment Re Defendant's Violation of FHA and Non-Compliance With HOPA. This second declaration supplements my prior declaration submitted in support of Plaintiffs' Motion.
2. Attached hereto as Exhibit A is a true and correct copy of additional excerpts from the transcript [*23] of the Rule 30(b)(6) deposition of defendant Ryderwood Improvement and Service Association, Inc. ("RISA"), whose designated representative was RISA Board of Directors member Sally Gene De Briae and which deposition occurred on

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February 12, 2010.
3. Attached hereto as Exhibit B is a true and correct copy of excerpts from Plaintiffs' Responses To Defendant's First Interrogatories and Requests for Production to Plaintiffs dated December 29, 2009. Included as the last page of Exhibit B is a true and correct copy of a letter dated April 18, 2008 from plaintiffs Raymond T. Balvage and Deborah A. Balvage, which letter was produced by plaintiffs to defendant in response to these discovery requests and is bates stamped as "PLA297."
4. Attached hereto as Exhibit C is a true and correct copy of the first page of Exhibit 2 to the RISA Rule 30(b)(6) deposition (which deposition is referenced above in paragraph 2), and which is discussed in the excerpts from the deposition attached hereto as Exhibit A on deposition pages 62 and 63.
I hereby declare under penalty of perjury under the laws of the United States of America and the State of Washington that the foregoing is true and correct.
SIGNED [*24] this 1st day of April, 2010 at Seattle, King County, Washington.
/s/ Joseph E. Lynam Joseph E. Lynam, WSBA No. 12728 Lane Powell PC 1420 Fifth Avenue, Suite 4100 Seattle, Washington 98101-2338 T: 206-223-7088 F: 206-223-7107 E-mail: lynamj@lanepowell.com
CERTIFICATE OF SERVICE
The undersigned certifies under penalty of perjury under the laws of the State of Washington, that on April 1, 2010, the document attached hereto was presented to the Clerk of the Court for filing and uploading to the CM/ECF system. In accordance with their ECF registration agreement and the Court's rules, the Clerk of the Court will send e-mail notification of such filing to the following persons:
Attorneys for Defendant: Steven Goldstein Betts, Patterson & Mines, P.S. One Convention Place, Suite 1400 701 Pike St. Seattle, WA 98101 T: 206-292-9988 Email: sgoldstein@bpmlaw.com
[[checkmark]] by CM/ECF [] by Electronic Mail [] by Facsimile Transmission [] by First Class Mail [] by Hand Delivery [] by Overnight Delivery
/s/ Joseph E. Lynam Joseph E. Lynam, WSBA No. 12728

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LANE POWELL PC 1420 [*25] Fifth Avenue, Suite 4100 Seattle, WA 98101-2338 Tel: 206.223.7000 Fax: 206.223.7107 Email: lynamj@lanepowell.com
Attorney(s) for Plaintiffs
[SEE EX A IN ORIGINAL]
[SEE EX B IN ORIGINAL]
[SEE EX C IN ORIGINAL]

 
 Page 1
View U.S. District Court Opinion View Original Source Image of This Document
RAYMOND T. BALVAGE and DEBORAH A. BALVAGE, husband and wife, and CHARLES E. WEAVER and SUSAN M. WEAVER, husband and wife, on their own
behalf and on behalf of a class of similarly situated individuals, Plaintiffs, vs. RYDERWOOD IMPROVEMENT AND SERVICE ASSOCIATION, INC., a
Washington non-profit corporation, Defendant. ASE NO. C09-5409BHS
UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON, TACOMA DIVISION
2009 U.S. Dist. Ct. Motions 628017; 2010 U.S. Dist. Ct. Motions LEXIS 44245 April 5, 2010
Motion for Summary Judgment VIEW OTHER AVAILABLE CONTENT RELATED TO THIS DOCUMENT: U.S. District Court: Motion(s) COUNSEL: [*1] BETTS, PATTERSON & MINES, P.S., Seattle, Washington, Steven Goldstein, WSBA #11042, Richard D. Ross, WSBA #34502, Attorneys for Defendant. JUDGES: Honorable Benjamin H. Settle TITLE: Defendants' Motion For Partial Summary Judgment TEXT: I. INTRODUCTION AND RELIEF REQUESTED
Plaintiffs are homeowners in Ryderwood, a retirement community established in 1953. They bring this claim under the Fair Housing Act ("FHA") but the harms they allege do not stem from any act of discrimination. Instead, they allege that Defendant Ryderwood Improvement and Service Association ("RISA") misled them by claiming it was compliant with the Housing for Older Persons Act ("HOPA"), an exemption to the FHA. They allege RISA was not compliant with HOPA in the past and, thus, cannot rely on the exemption today. Consequently, their "injury in fact" does not stem from any act of discrimination, it stems from their supposition that future families may successfully challenge Ryderwood's status as a retirement community and move to the town. These allegations do not support an FHA claim.
Defendant RISA moves for summary judgment on the following bases: First, the Plaintiffs lack standing. Although they allege [*2] this as an FHA action, it is not. Their harms are theoretical. Even if assumed, they do not stem from any act of discrimination, they stem from the hypothetical belief

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that RISA may not be able to defend against some future claim of discrimination brought by an unknown family. This is not injury in fact under the FHA, cannot be tied to any purpose of the FHA, and cannot be redressed by this Court.
Second, any claim made by the Plaintiffs is time barred under the FHA's two year statute of limitations. In their Complaint they allege they have lived in Ryderwood for at least five years and concede they were aware of these age restrictions when they moved to Ryderwood. Even if they could rely upon the "failure to comply with HOPA" as a cause of action under the FHA, the technical failures they cite were rectified by September, 2007, at least two and a half years before they filed their Complaint, at least six months after the statute of limitations ran. Plaintiffs' claims are barred.
Third, RISA is HOPA compliant. HOPA requires the intent to be and remain a retirement community. Ryderwood was founded in 1953 as a retirement community and actively promotes and protects that status. [*3] The age restrictions are in all deeds, in RISA's bylaws (which are recorded on each chain of title), and are heavily publicized. Ryderwood has signs and placards that inform prospective purchasers of its status as a "55+ community." And RISA actively updates its records to verify that it remains a 55+ community.
Plaintiffs have suffered no harm, Ryderwood complies with HOPA, and the time to file has passed. Summary judgment of Plaintiff's Fair Housing Act claim is appropriate.
II. FACTS
A. Ryderwood Has Been A Retirement Community For 57 Years.
Ryderwood has existed as a retirement community since 1953 when Senior Estates platted the town as "Ryderwood No. 1." n1 All Ryderwood properties were devised by deed and subject to identical covenants and restrictions. The deeds state:
[Senior Estates] has acquired and developed the real property known and platted as Ryderwood No. 1 . . . as a community to be occupied by and for the use and benefit of persons who are bona fide recipients of a pension or retirement annuity . . . n2

n1 See Declaration of Sally-Gene DeBriae in Support of Opposition to Motion for Partial Summary Judgment and Motion for Summary Judgment (hereafter "DeBriae Dec."), Ex. A thereto (Ryderwood Plat Map). [*4]
n2 DeBriae Dec. Ex. B thereto (sample Senior Estates Deed).
The deeds provide Senior Estates with the right to enforce those provisions as well as the right to transfer that power to its designee, RISA. As noted in the deed:
The Grantor, or Grantor's assigns, may at any time transfer and assign their rights to enforce the covenant and conditions contained in the deed to RYDERWOOD IMPROVEMENT AND SERVICE ASSOCIATION . . . n3

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n3 Id.
The deed also provides RISA with the right to modify conditions by adopting and recording its bylaws:
Grantor, on behalf of Grantor and its assigns, hereby reserves the right, at its discretion, to modify or terminate any or all of the foregoing conditions by recording an instrument in the office of the County Recorder of Cowlitz County, Washington. n4

n4 Id.
[*5] Senior Estates incorporated RISA in 1953 as well. n5 In 1975, RISA revised its bylaws and recorded them at the
Cowlitz County Recorders' Office. n6 The amended bylaws clarified the original "pension and retirees" restrictions to limit residency to persons that:
Must be a bona fide recipient of an annuity or a pension.
Must not be less than fifty-five years of age.
Must have no additional permanent occupants of the home (other than [a] spouse) who do not meet the above requirements. n7

n5 DeBriae Dec. Ex. C thereto (RISA Articles of Incorporation). n6 DeBriae Dec. Ex. D thereto (1975 RISA bylaws) n7 Id.
There is no evidence that any of the homeowners challenged the right of RISA to record and enforce its bylaws at the time of the 1975 amendment. n8
n8 DeBriae Dec., P 5.
B. RISA's [*6] Age Restrictions Are Conditions Of Title.
The Plaintiffs contend that the age restrictions are imposed by RISA. Not so. RISA's rights and duties stem solely from the bylaws - which prior owners agreed to have placed in their chains of title - and the original deed restrictions. RISA did not decide to make Ryderwood a senior community, that decision was made by Senior Estates (via the deed restrictions), and prior owners (who agreed for the bylaws to be recorded with the County). n9 Thus the primary age enforcement mechanism is not some affirmative act of RISA, it is each prior homeowner's agreement to be bound and their right to enforce those restrictions against fellow homeowners. n10 This includes the Plaintiffs here (see subsection C, below) as well as the other 270 homeowners in Ryderwood.

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n9 Id. P 6 & Ex. B thereto. n10 Id.
What RISA does do is make sure that prospective homeowners and visitors are aware of those age restrictions. n11 This process involves various components, [*7] such as signage throughout the community stating that it is a "55+ community," regular disclosures to real estate agents that work in the area, and notice to prospective homeowners and visitors who inquire about homes in Ryderwood. n12
n11 Id. P 7. n12 Id.
Pursuant to the bylaws, at least one member of each household must join RISA. n13 RISA enforces this policy as part of the process of collecting monthly dues, a requirement that is also expressly authorized by the deeds and bylaws. n14 If a home sells, or a new resident moves in to a home, RISA will contact the new owners and inform that they at least one resident must join RISA. n15 RISA also updates its records via other informal processes, such as researching property sale records, by visiting homes when new residents arrive, and by notifying real estate agents that all new residents must join RISA. n16
n13 Id. P 8. n14 Id.; see also Ex. B (sample Senior Estates deed). [*8]
n15 Id. P 9. n16 Id.
C. The Plaintiffs Do Not Show They Were Discriminated Against.
The Plaintiffs are Charles and Susan Weaver and Raymond and Deborah Balvage. Neither couple offers any evidence they suffered discrimination or were harmed by any alleged act of discrimination. Nor do they offer any evidence that RISA discriminated against them.
The Weavers admit they knew of the age restrictions before they moved to Ryderwood in 2005. n17 Indeed, they admit they moved to Ryderwood because it was a retirement community. n18 In a declaration filed in a lawsuit the Weavers brought against a fellow homeowner to enforce RISA's bylaws (Weaver v. Bichler, Cowlitz County Superior Court No. 05-2-01301-1 (2005)), Charles Weaver attested:
Ryderwood has always been a residential area for retirees, fifty-five years and older.
Central to the maintenance of the character of this area has been the legally imposed requirements regarding the use of the property under RISA's jurisdiction.

2009 U.S. Dist. Ct. Motions 628017; 2010 U.S. Dist. Ct. Motions LEXIS 44245, *8
These requirements have been spelled out in [CC&Rs] . . . In [*9] addition, these requirements have been spelled out in the RISA By-Laws. n19

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n17 Declaration of Richard D. Ross in Support of Motion for Summary Judgment (hereafter "Ross Dec"), Ex. A thereto (Discovery Responses of Charles and Susan Weaver provided in the matter of Weaver v. RISA, Cowlitz County Superior Court No. 07-2-02001-3 (2008)), Response to Interrogatory No. 21 (located behind discovery requests). n18 Id. n19 Ross Dec., Ex. B (Declaration of Charles Weaver in matter of Weaver v. Bichler, Cowlitz County Superior Court No. 05-2-01301-1 (2005).
The Weavers present no proof of any harm nor any proof they meet the definition of "familial status." n20 Although Mr. Weaver alleges in the Complaint that he was forbidden from having his son live with him, he provides no evidence that he ever attempted to have his son live with him and provides no details about when this took place. n21 Further, it is not the basis for Plaintiffs' Complaint or this motion, the Plaintiffs do not [*10] bring this claim because of that alleged act, they allege harm because RISA misled them into believing this was a retirement community that restricted families from residing in the community.
n20 Ross Dec. P 4. n21 Ross Dec. P 5;
In support of his motion for partial summary judgment in this matter, Mr. Weaver declares that he was just a supporter of RISA, that he "held no official position with RISA," and merely "encourage[d] the Board to become HOPA complaint [sic]." n22 These responses are disingenuous. In response to discovery propounded by RISA in a prior lawsuit brought by the Weavers against RISA, Mr. Weaver admitted that he served as "Treasurer" from June 22, 2006 to February 28, 2007, that he served as legal liaison to the Board for two different lawsuits, and that he was involved in RISA's efforts or decision to comply with HOPA. n23
n22 See Declaration of Charles Weaver in Support of Motion for Partial Summary Judgment, PP 6, 13 & 14. [*11]
n23 Ross Dec. Ex. A thereto, see Answers to Interrogatories 2, 3, 4 and 26.
In fact, Mr. Weaver's role as legal liaison was substantial. n24 Mr. Weaver advised the RISA board on legal matters outside of those suits, general matters of compliance, and was the point of contact between RISA and its outside counsel. n25 Mr. Weaver was also involved with RISA's decision to conduct the HOPA survey in 2005 and 2006. n26 Indeed, it was Mr. Weaver who originally suggested to RISA's board that it needed to conduct an official HOPA survey. n27 Mr. Weaver also directed the RISA volunteers who conducted that survey about what process they should use to collect signatures, what forms of identification were acceptable to verify age, and his interpretation of HOPA. n28

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n24 See DeBriae Dec. PP 11-13; see also id. Exs. E (Weaver email stating he is legal liaison) & F (transcript of presentation to Board by Weaver). n25 DeBriae Dec. P 11. n26 DeBriae Dec. P 14. n27 Id. n28 Id.
[*12]
Raymond and Deborah Balvage have been residents of Ryderwood since 2002. n29 Before purchasing their home, they admit they were advised by real estate agent Clarine Meeks they were required to join RISA and pay monthly dues. n30 Ms. Balvage has also produced a document titled "my complaint," in which she describes her knowledge of the age restrictions:
We thought that this was a 55+ community with requirements and restrictions. We were told that Ryderwood had a town governing body [RISA] with bylaws and covenants that were strictly enforced. Many realtors advertise for their clients and RISA also advertises that it is a 55+ community. Then in 2008 I was given evidence to the fact that RISA was operating and practicing discrimination, fraud and had never been a HOPA certified to be 55+ community." n31
n29 Ross Dec. Ex. C thereto (Raymond Balvage "My Complaint" Letter). n30 Id. n31 Ross Dec. Ex. D thereto (Deborah Balvage "My Complaint" Letter).
As damages she claims that her [*13] son "lost his ability to claim this residence as a tax right off [sic]." PLA 358. She also seeks specific punishments for members of the RISA board for violating corporate laws and unlawfully attaching bylaws on her properties. Id. Neither Mr. or Ms. Balvage present any proof of harm, nor do they qualify as "familial status." n32
n32 Nor do they allege any FHA injuries in support of their motion for partial summary judgment. In support of that motion, the Plaintiffs relied upon the Declaration of Mr. Weaver as well as a declaration of their counsel, Joseph Lynam. Neither document attests or refers to any actual act of discrimination.
D. The Weavers' Prior Suit Against RISA.
In September, 2007, Mr. Weaver abruptly resigned from his official role with RISA. n33 Then, in November, 2007, the Weavers filed suit against RISA in Cowlitz County Superior Court. n34 The allegations made there were identical to those alleged here. Their first cause of action alleged that RISA was not authorized to record [*14] and enforce the bylaws or Senior Estates deed conditions. Their second cause of action alleged that RISA's age-restrictions violated the FHA because RISA was not exempt under HOPA. The Weavers did not Complain that they were personally injured by any act of discrimination. n35 Instead, they alleged harm because RISA misled them about its authority to lawfully discriminate against others:

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The act of filing the RISA bylaws, which prohibit purchase and occupancies based on age and family status, on our property, without the right to do so, is a discriminatory act. Our injury is the result of RISA['s] [sic] claim that it has such a right when in fact it did not. Because RISA claimed this was a 55+ community and because they claimed they had a right to file their bylaws on property, which would maintain 55+ status, we invested our life savings in purchasing our home in the plat of Ryderwood No. 1. n36

n33 DeBriae Dec., Ex. G (Weaver Resignation Letter). n34 Ross Dec., Ex. E (Complaint in matter of Weaver v. RISA, Cowlitz County Sup. Ct. No. 07-2-02001-3 (2007)). n35 See id. Ex. E, pp. 2-3 of Complaint. [*15]
n36 Ross Dec. Ex. A, Plaintiffs' Answer to Interrogatories, p. 5, no. 21.
On December 16, 2008, RISA moved for summary judgment. n37 As here, RISA argued that its policies met the HOPA exemption and that Weavers could show no harm because they voluntarily chose to move to a retirement community. n38 The Weavers opposed, arguing that HOPA was not shown because RISA did not vote to become a "HOPA community" and that the survey conducted - under his watch - was insufficient. n39
n37 Ross Dec. Ex. F (RISA Motion for Summary Judgment). n38 Id. n39 Ross Dec. Ex. G (Weaver Opposition to Summary Judgment)
In addition - for the first time - Mr. Weaver alleged that RISA discriminated against him by refusing to allow his son to live with him. n40 In response to this final factual allegation, RISA argued that this allegation was improper as it was never previously mentioned, was not pled in his Complaint, [*16] and that no facts were provided in support of this contention. n41
n40 Id., p. 7. n41 Ross Dec. Ex. H (RISA Rebuttal to Opposition to Motion for Summary Judgment), pp. 12-13; see also id. Ex. A, Plaintiffs' Answers to Interrogatories, p. 5, no. 21 (Weavers do not disclose this as an allegation or element of damage); see also id. Ex. E (no allegation made in Complaint regarding this allegation).
On March 11, 2009, the Court granted summary judgment, holding:
There was apparently always a requirement, which no one disputes, that in order to have ownership, you must be a bona fide recipient of an annuity or pension, which I think it another way of saying the same sort of thing that was intended by the 55 year restriction.

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Since 1975 everyone has apparently understood that one of the restrictions on ownership or the ability to purchase . . . was that you must be at least 55.
I don't think there's any question about the intent of forming the community was to have this restriction [*17] [of] 55 years of age or older. n42

n42 Ross Dec. Ex. I (Excerpts from Oral Order on Motion for Summary Judgment), pp. 148:10-151:11.
The Court did not immediately grant judgment on the HOPA claim, instead it provided the Weavers with an additional 90 days to investigate the results of the survey and note discrepancies. n43 The Weavers did not do so. Instead, they moved for reconsideration. In response, the Court issued an order that clarified its oral ruling of April 20, 2009, again providing the Weavers with an additional 90 days to show RISA violated the FHA:
The question of whether [Ryderwood] is in violation of the Fair Housing Act or is allowed by the Housing for Older Pe[rsons] Act depends upon compliance with that act. The plaintiffs may show that Ryderwood is not in compliance with HOPA by conducting their own survey. n44

n43 Id. Ex. I. p. 153:9-13. n44 Ross Dec. Ex. J (Court's Ruling on Plaintiffs' Motion for Reconsideration of Summary Judgment Order), p. 2.
[*18]
Again, the Weavers did not do so. On July 20, 2009, the court entered judgment. n45 After another unsuccessful attempt to move for reconsideration of the Court's Order, the Weavers appealed. The Court of Appeals has not yet issued a decision.
n45 Ross Dec. Ex. K (Order on Motion for Entry of Final Judgment).
E. Plaintiffs Allege Harm Because RISA Cannot Discriminate.
On November 10, 2009 the Plaintiffs filed this suit. With respect to their Fair Housing Act claim, the Plaintiffs allege that RISA "misled" them into believing that Ryderwood was "HOPA compliant." Complaint, P 30. For example, they allege that "RISA has wrongfully deceived Plaintiffs and Class members, at the time of the purchase of their homes and/or subsequently, that RISA is HOPA compliant and that RISA's age restrictions are legally enforceable and mandatory." Id. P 38. Plaintiffs do not allege harm from any act of familial status discrimination, they allege harm because, as a result of this alleged deception, "Plaintiffs . . [*19] . purchas[ed] real property which they would not have purchased (or would have paid less) if they were told the correct facts . . .". Id. In other words, their claim is not based on acts of discrimination, but on RISA's alleged misrepresentation that it was compliant with HOPA.
III. QUESTIONS PRESENTED

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1. Do the Plaintiffs have standing to assert Fair Housing Act violations when they present no evidence they were within the subject class and do not claim harm from any act of discrimination?
2. Are the Plaintiffs barred from arguing Fair Housing Act violations where they were aware of the facts that give rise to their claim at least two-and-a-half years prior to filing suit?
3. Does RISA's 2007 survey satisfy the requirements of HOPA?
IV. EVIDENCE RELIED UPON
This motion is based on the records and pleadings on file; the Declaration of Richard D. Ross, and exhibits thereto; and the declaration of Sally-Gene Debriae, and exhibits thereto.
V. LAW AND ANALYSIS
A. Burden of Proof Under the Fair Housing Act.
The Plaintiffs' claims are predicated solely on their allegation that RISA is not compliant with HOPA. But HOPA is not a cause [*20] of action, it is merely a defense to claims of discrimination brought under the FHA. See 42 U.S.C. § 3607(b)(1) ("No provision in this subchapter regarding familial status [applies] with respect to housing for older persons."). To establish a claim under the FHA, the Plaintiffs must prove, by a preponderance of the evidence, that RISA discriminated against them. See McDonnell Douglas Corp. v. Green, 411 U.S. 792 802, 93 S.Ct. 1817, 1824, 36 L.Ed 2d 668 (1973). If this is shown, the burden shifts to RISA to rebut that claim, including via affirmative defenses such as HOPA. United States v. City of Hayward, 36 F.3d 832, 837 (9th Cir. 1994). Unless and until the Plaintiffs show some actual act of discrimination upon which they can show standing, HOPA is merely an inchoate defense.
B. The Plaintiffs Do Not Have Standing.
To demonstrate standing, Plaintiffs must show: (1) a concrete "injury in fact"; (2) a causal connection between the injury and the defendant's conduct; and (3) redressibility. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Standing "must [*21] be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation." Lujan, 504 U.S. at 561.
1. The Plaintiffs Show No Injury In Fact.
Plaintiffs present no proof of any Fair Housing Act injury. They contend they will suffer harm by virtue of their theoretical belief that RISA failed to comply with HOPA in the past, and thus may lose its right to remain a retirement community in the future. This is not proven. Nor is it the type of harm the FHA was enacted to redress.
The burden to prove injury falls on the Plaintiffs: "The litigant must clearly and specifically set forth facts sufficient to satisfy these Art. III standing requirements." Whitmore v. Arkansas, 495 U.S. 149, 156, 110 S.Ct. 1717, 1723 (1990). And while standing is broadly interpreted under the FHA, it still demands some proof of harm:
[The] injury, we have emphasized repeatedly, must be concrete in both a qualitative and temporal sense. The complainant must allege an injury to himself that is "distinct and palpable," as opposed to merely "[a]bstract, [*22] " and the alleged harm must be actual or imminent, not "conjectural" or "hypothetical."
Whitmore, 495 U.S. at 155-56, 110 S.Ct. at 1723 (1990) (citations omitted).

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Plaintiffs' bare allegation that they were "harmed" because of RISA's alleged deception is not a palpable injury in fact. What they claim as "harm" is the notion that allowing families to move to Ryderwood will actually reduce property values. This idea is the very antithesis of fair housing act jurisprudence; courts have repeatedly rejected claims that opening housing to protected classes is harm.
It is also purely theoretical. It is theoretical from an evidentiary basis (they have produced nothing to support this alleged reduction in value), and it is theoretical from a basis of logic. To arrive at an injury from this allegation, the Court must assume that a future family attempts to move to Ryderwood, is denied, files suit, proves Ryderwood is not HOPA compliant, obtains an order forcing RISA to cease all age restrictions, which lowers their property value. This chain of hypotheses is not an injury in fact. n46

n46 Nor can Plaintiffs base their claim on RISA's alleged refusal to allow Mr. Weaver to have his son live with him. Plaintiffs have produced no documentary evidence of this allegation and do not base their claim on this failure. See, e.g., Plaintiffs' Motion for Partial Summary Judgment (do not allege that Mr. Weaver was denied the right to have his son live with them). Moreover, this is antithetical to their claim for relief. As noted, the basis for their suit is that they were "misled" into believing that they were moving to a retirement community, not that they suffered damage because of discrimination.
[*23]
2. Plaintiffs Cannot Show A Causal Nexus Between Any Act Of Discrimination And Their Injuries.
The harms alleged by Plaintiffs are not causally connected to any prohibited act under the FHA. Although standing under the FHA is broad, it is not limitless. "In order to satisfy Art. III, the plaintiff must show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant." Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 98, 99 S. Ct. 1601, 1607 (1979) (emphasis added); see also Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205, 208, 93 S.Ct. 364, 34 L.Ed.2d 415 (1972) (white tenants had standing as "aggrieved persons" in challenge to landlord's race discrimination due to "loss of important benefits from interracial associations."). Here Plaintiffs cannot meet this burden. The FHA provides that only "aggrieved person[s] may commence a civil action in an appropriate United States district court." 42 U.S.C. § 3613(a)(1)(A). The statute defines an "aggrieved person" as any person who:
(1) claims to have been injured by a discriminatory housing [*24] practice; or
(2) believes that such person will be injured by a discriminatory housing practice that is about to occur."
42 U.S.C. § 3602(I).
The Plaintiffs do not meet either of these criteria. To satisfy the FHA, what they claim as harm must bear some causal nexus to a concrete and tangible act of discrimination. But their alleged harms flow from their hypothetical belief that RISA cannot discriminate, not from any present or imminent "discriminatory housing practice." What they claim as harm are damages flowing because they were "misled" to believe that RISA was exempt from the FHA. Whether that allegation might state a viable claim under some other theory is unknown but irrelevant.
Nor do they have standing in a third-party capacity. Although courts have recognized that plaintiffs may - in certain circumstances - bring suit for violations suffered by others, Plaintiffs must show they: "(1) suffer[ed] actual injury as an ancillary effect of present or imminent discrimination against a protected class member; and (2) challenge[] the discriminatory policy on behalf of that class member." Wasserman v. Three Seasons Ass'n No. 1, Inc., 998 F. Supp. 1445, 1446-47 (S.D. Fla. 1998). [*25] Neither element is shown. First, what they claim as harm is because they were

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misled into believing RISA was exempt from the FHA, thus it is not discrimination that leads to their harm but the inability to discriminate. The second element fails because these claims are not brought to vindicate the rights of any person with familial status. The Plaintiffs offer no argument that they hope for a greater stock of family housing. In fact, they argue that a greater stock of family housing as the basis for their harm.
An example of the tie required to assert third-party standing is Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205, 208, 93 S.Ct. 364, 34 L.Ed.2d 415 (1972). The Supreme Court held that white tenants had standing to challenge a landlord's race-based discrimination because they suffered loss of social benefits of an integrated community, missed business and professional advantages, and stigmatization. No such stigmatizing impact is alleged here. On the other hand, in Wasserman v. Three Seasons Ass'n No. 1, Inc., 998 F. Supp. 1445, 1447-48 (S.D. Fla. 1998), the court held that a childless couple who refused to sign a promise to vacate an [*26] apartment if they became pregnant could not assert standing because they could not identify any actual person that suffered familial status discrimination. As Wasserman held: "[s]tanding requires a sufficient nexus between a plaintiff's injury and the allegedly illegal actions of a defendant." Wasserman, 998 F. Supp. at 1446-47.
The point of these decisions is that although Plaintiffs may contend that this claim is brought to right some FHA wrong, that ipse dixit is not enough. They must be able to tie some actual injury in fact to some actual act of discrimination. As the Wasserman court held:
If the Court were to find that Plaintiffs had standing as "aggrieved persons," it would have to come to the overbroad conclusion that philosophical disagreement with a policy alone confers standing to challenge the policy, or the unlikely conclusion that the potential to become members of a protected class gives standing to challenge discrimination against that class, in the absence of any evidence of actual discrimination against class members.
The leading cases on standing as "aggrieved persons" under the FHA make clear that the non-class member [*27] must have a sufficient stake in or nexus with the controversy and that a stake in the controversy is demonstrated when the non-class member suffers an ancillary injury as a result of the defendant's tangible discrimination against protected class members.
While the Court is cognizant that Defendant's policy might one day have the effect of discriminating on the basis of familial status, Plaintiffs' injury simply does not have a sufficient nexus with any actual discrimination, and thus Plaintiffs lack the standing to prevent such a contingency from occurring.
Wasserman, 998 F. Supp. at 1448 (emphasis added).
The Plaintiffs do not meet this standard. Their harms do not flow from the fact that RISA discriminated, they flow from their allegation that RISA cannot do so. See Complaint P 38 ("RISA has wrongfully deceived Plaintiffs [into believing] that RISA is HOPA compliant and that RISA's age restrictions are legally enforceable and mandatory.").
There is no causal nexus between their alleged injuries and any purpose of the FHA.
3. Plaintiffs Harms Are Not Redressable.
Finally, Plaintiffs must show a "'substantial likelihood' that the requested [*28] relief will remedy the alleged injury in fact." Vermont Agency of Natural Resources v. United States ex rel. Stevens, 529 U.S. 765, 771 (2000). Plaintiffs cannot meet this standard. As redress, Plaintiffs seek an order terminating RISA's right to enforce HOPA. While this would theoretically rectify an injury in fact caused by RISA's act of discrimination, this is not what Plaintiffs claim caused them harm. Plaintiff's "injury in fact" is the diminution in home value they allege will result if families move to Ryderwood. Thus, what they seek as their "remedy" will, in fact, perfect their claim for damages. See Steel Co., 523 U.S. at 107, 118 S.Ct. at 1019 ("Relief that does not remedy the injury suffered cannot bootstrap a plaintiff into

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federal court; that is the very essence of the redressability requirement.").
Summary judgment is appropriate.
D. The Plaintiffs' Claims Are Barred By The Applicable Statute Of Limitations
The FHA provides that any claim must be brought "not later than 2 years after the occurrence or the termination of any alleged discriminatory housing practice." 42 U.S.C. § 3613(a)(1)(A). This Complaint [*29] was filed on November 10, 2009. The Weavers moved to Ryderwood in 2005. The Balvages moved to Ryderwood in 2002. Both couples admit they were aware of the alleged discriminatory behavior when they moved to the town. And neither claims to have suffered from any act of discrimination. What they allege as harm, instead, is the allegation that RISA "misled" them into claiming it was HOPA compliant. Because such actions must have taken place, if at all, on or before the date that they purchased their homes, such discrete acts are barred by the two year statute.
Nor can Plaintiffs rely on their premise that they were "misled" because RISA claimed the right to rely on HOPA. For one, they offer no proof to show that RISA misled them by contending it was "HOPA compliant." And two, even if they did, this would not state a claim under the FHA. FHA claims redress discrimination. HOPA is merely a defense to actionable claims. Here, any knowledge necessary to prove an FHA claim was known by both the Weavers (who moved to Ryderwood in 2005) and the Balvages (who moved to Ryderwood in 2002) well before the statute of limitations expired. Indeed, both couples admit they were aware of the alleged discriminatory [*30] behavior when they moved to the town. Thus both were on notice of the conduct that would form the basis for their FHA claim.
E. RISA Is Exempt Under HOPA.
Finally, their claims regarding RISA's non-compliance with HOPA are simply wrong. RISA is HOPA compliant. To rely upon the defense, a retirement community must show three things:
(1) at least 80 percent of the occupied units are occupied by at least one person 55 years of age or older;
(2) the community publishes and adheres to policies and procedures that demonstrate an intent that the community be occupied by people 55 years of age or older; and
(3) the community complies with age verification regulations established by [HUD].
42 USC § 3607(b)(2)(C).
As of the September, 2007 survey, RISA met the 80% threshold, had policies and procedures in place to remain a 55+ community, and can verify compliance. n47

n47 By this argument RISA does not concede or admit that it was not compliant prior to this date, it cites the September, 2007 survey specifically because that was the most recent survey completed before Plaintiffs' alleged claims arose. RISA incorporates by reference its arguments made in Opposition to Plaintiffs' motion for summary judgment, filed with this Court on March 29, 2010.
[*31]
1. The History of HOPA.
HOPA was passed by Congress at the same time as the familial status provision was added to the Fair Housing Act, 1988. In 1995 Congress amended the Act in order to prevent excessive litigation and "protect senior housing." 64 Fed.

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Reg. 16325. n48 The legislative history to the amendment reflects Congress's belief that both senior housing and family housing were worthy of protection, "[t]he legislation strikes a reasonable compromise - protecting the rights of families with children and the security and peace of mind of senior citizens." Cong. Rec. H4360 at H4360 (Rep. Canady). Taken together, the FHA and HOPA "protect families with children while still 'fully protect[ing] the rights of senior citizens who live in retirement communities, and . . . allow[ing] those communities to exclude families with children if they so choose.'" Taylor v. Rancho Santa Barbara, 206 F.3d 932, 936 (9th Cir. 2000) (citing 134 Cong. Rec. H4603 at *H4607 (daily ed. June 22, 1988).)

n48 Ross Dec., Ex. M (HUD Implementation Guidelines).
[*32]
Although exemptions to the FHA are generally interpreted narrowly, Courts recognize that HOPA should be interpreted more broadly to comport with Congress's concerns to "protect retirement communities." As noted in Deer Hill Arms II Ltd. v. Planning Comm'n of City of Danbury, 239 Conn. 617, 625, 686 A.2d 974 (1996), "the legislative history is replete with expressions of congressional concern on protecting choice of living in housing of older persons . . .". Thus a "flexible fact specific inquiry must be made to determine whether the exemption is applicable so that these legislative goals may be achieved." Id., at 625-26. In this regard, whether a community is in compliance must focus on the "intent" of the community, rather than on rote adherence to strictly delineated criteria and timelines. See Massaro v. Mainlands Section 1 & 2 Civic Ass'n, Inc., 3 F.3d 1472, 1477 (11th Cir. 1993). As the Massaro court noted:
As Judge Learned Hand stated, statutes 'should be construed, not as theorems of Euclid, but with some imagination of the purposes which lie behind them.'
Id. (citing Lehigh Valley Coal Co. v. Yensavage, 218 F. 547, 553 (2d. Cir. 1914). [*33]
Plaintiffs' interpretation violates that edict. It places form over substance by asking this Court to hold that a 57 year old retirement community should cease to be by virtue of a strained interpretation that furthers no goal of either HOPA or the FHA. This is not warranted.
2. Ryderwood Meets The 80% Requirement
The HOPA survey completed on September 27, 2007 found there were 273 available total housing units in Ryderwood. n49 25 of those units were vacant or unverifiable. n50 Although HOPA does not require a party to count units that are vacant, RISA included those units as "not occupied by persons aged 55 and older" since 100% of the 248 housing units that could be surveyed were occupied by at least one person aged 55 years or older. Even without counting the vacant and unverifiable units, the result reveals that over 92% of the available units were occupied by persons 55 years of age and older on that date.

n49 DeBriae Dec. Ex. I (September, 2007 survey). n50 See id.; see also Ross Dec. Ex. M (HUD Regulations Interpreting HOPA) (Note that per HUD Regulation 100.305, vacant units are generally not counted, although temporarily vacant units are counted).
[*34]
3. Policies and Procedures.

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The second element analyzes whether the community had the requisite intent to operate as housing for persons aged 55 and over. See 24 C.F.R. § 100.306. n51 HUD regulation 100.306 lists seven non-exclusive factors relevant to determine whether a community has that requisite intent. Those are: (1) The manner in which the housing facility of community is described to prospective residents; (2) Any advertising designed to attract prospective residents; (3) Lease provisions; n52 (4) Written rules, regulations, covenants, deeds or other restrictions; (5) The maintenance and consistent application of relevant procedures; (6) Actual practices of the housing facility or community; and (7) Public posting in common areas of statements describing the facility or community as housing for persons 55 years [or older]. n53 As HUD notes in the commentary section of its regulations, a community is not required to comply with all seven criteria. The focus of the inquiry is on whether the community intends to operate as a 55+ community.
Intent is judged based on the common understanding of the word and whether the community or facility has established through [*35] various means whether they intend to operate housing for persons who are 55 years of age or older. n54
Here that intent is clear.

n51 Plaintiffs argue that RISA fails to meet this factor because it did not elect to be a "HOPA community." This misstates the rule. HOPA is not an election, it is a defense. There is no procedure in HUD regulations for a community to become "HOPA complaint." n52 This factor is not generally considered relevant where the provisions are maintained by groups such as a homeowners association because they are of limited use in such cases. See Massaro v. Mainlands Civic Assn., 3 F.3d 1472, 1478 (11th Cir. 1993) n53 Ross Dec. Ex. M (24 C.F.R. § 100.306) n54 Id. Ex. M (commentary to HUD Regulations at 64 Fed. Reg. 16327).
Ryderwood was formed in 1953 as a community for seniors. Each home at issue was conveyed subject to deeds that reserved occupancy to "bona fide retirees and pensioners." The RlSA bylaws were amended [*36] in 1975 to further restrict occupancy to those at least 55 years of age and older. Those bylaws are recorded with the County and appear in every owner's chain of title. When homes in the community are sold, these restrictions appear on their title reports and disclosures. When they move in, new owners are required to sign a membership form, which requires them to agree to abide by all RISA bylaws and policies.
RISA stringently enforces these policies. Since at least 1996, all new residents are required to attest to their age when signing the certificate of membership with RISA. n55 While HUD regulations permit up to 20% of the homes to be occupied by persons under the age of 55, RISA has long maintained a stringent 100% policy of compliance (except for spouses). The age restrictions are disseminated to local real estate agents who regularly cite that fact on the multiple listing service. Signs posted throughout the property state that residency is limited to those 55 and over.

n55 Note that this step is not necessary to bind the properties since all owners are subject to the terms of the deed (which limits residency to bona fide recipients of annuities and pensions) and the terms of the bylaws (which are recorded as a condition to ownership).
[*37]
Finally, the most direct items of evidence come from the named Plaintiffs themselves. As noted above, Charles Weaver signed a declaration attesting that: "Ryderwood has always been a residential area for retirees, fifty-five years

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and older." Deborah Balvage states in her declaration that, before she purchased her home, "we thought that this was a 55+ community with requirements and restrictions." And Raymond Balvage attests that he and his wife "were told by the real estate agent Clarine Meeks that Ryderwood was a "55+ community."
All told, RISA engages in a wide variety of methods, acts and practices to show its intent to remain a 55+ community.
4. RISA Properly Verified Its Status
The third and final factor requires the community to adopt steps and procedures to ensure that it complies with the intent and age requirements on an ongoing basis. Massaro, 3 F.3d at 1478. HUD regulations state that proof of age be verified by one of the following documents: (1) Drivers license; (2) Birth Certificate; (3) Passport; (4) Immigration Card; (5) Military Identification; (6) Any other government issued identification card; or (7) a Certification in a lease, application, [*38] affidavit or other document. n56 HOPA also allows signed statements that at least one occupant is over 55 years of age. It further demands that the community "survey its files" at least every two years to ensure that the community remains in compliance and has the appropriate documentation. Both elements of this final factor are met.

n56 Ross Dec. Ex.M (24 C.F.R. § 100.307(d))
RISA's age verification process was sufficient to meet HUD regulations. To complete that survey, RISA conducted a comprehensive survey of all residents and homes in the summer of 2007. n57 This included door belling to determine that its files accurately reflected the identity of residents and a request for each resident to show they met the 55+ condition by providing a drivers license, birth certificate, passport, and/or a state identification card. n58 In addition to the affidavit showing compliance, RISA prepared and produced a checklist for each home in Ryderwood that cross-referenced the residences with identification provided. [*39] n59

n57 DeBriae Dec. Ex. I, pp. 2 et. al. n58 Id. n59 Id.
These were the verification procedures used in 2007 but, prior to that time, RISA engaged in less formalized processes that were equally effective. HOPA regulations do not demand that the community conduct a "HOPA survey," they merely require that the community regularly update its records in order to ensure that the homes are not occupied by new residents. As Regulation 100.307(b) states:
(c) The procedures described in paragraph (b) of this section must provide for regular updates, through surveys or other means, of the initial information supplied by the occupants of the housing facility or community. Such updates must take place at least once every two years.
Although RISA adopted Mr. Weaver's suggestions regarding more stringent compliance documentation, the regulation make clear that verification can be made by "other means." Since 1975 every home in Ryderwood has been subject to the bylaws and deed conditions [*40] that require all owners to abide by the 55 and over provision. This is a type of "self-certification" that HUD regulations specifically endorse as sufficient. n60 Furthermore, in 1996, RISA's membership form was modified to require each new resident to attest to his or her age. n61 This form of self-attestation of age is specifically authorized as sufficient to comply with HOPA's age requirements as well. n62

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n60 Ross Dec. Ex. M (Appendix to 100 C.F.R. 307(d)(7), Example 1 ["all new leases, new purchase agreements, or new applications contain a provision directly above the signatory line . . . asserting that at least one occupant of the dwelling will be 55 years of age or older"]). n61 DeBriae Dec., Ex. H (Weaver membership certificates). n62 Ross Dec. Ex. M (commentary to HUD Regulations at 64 Fed. Reg. 16327 ["[a] self certification of his or her age by an individual will be adequate to meet this [age verification] standard."]).
RISA also took steps to ensure that [*41] all residents were 55+. This included regularly updating a rolodex of all families, updating its annual neighborhood phone book (including doorbelling homes to verify residents were correctly listed), and by notice from Ryderwood homeowners, who actively monitor the community to ensure that it remains 55 and older. n63 This multi-faceted process of verification was complimentary to the covenants and bylaws, which alone is listed by HUD regulation as an example of what steps are necessary in order to verify the age requirements are met:
Example 2: A homeowners association amends its [CC&R's], and records them at the appropriate government recording office. The amendments require applicants to state whether at least one occupant is 55 years of age or older. n64
n63 DeBriae Dec. P 9. n64 Ross Dec. Ex.M (Appendix to Regulation 100.307(e), Example 2)
What this history shows is that RISA and Ryderwood had the requisite intent to be a retirement community. That is all that is required. [*42] See 42 U.S.C. § 3607(b)(1) (exemption applies to "housing for older persons" as defined by the statute).
VI. CONCLUSION
Plaintiffs' claims are deeply flawed. They cannot show they have been harmed, their claims are time barred, and what they claim as violations of the FHA are nothing more than their incorrect interpretations of a statute that does not provide for a private right of action. Because their grievances have nothing to do with the Fair Housing Act, summary judgment should be granted.
DATED this 1st day of April, 2010.
BETTS, PATTERSON & MINES, P.S.
By /s/ Steven Goldstein Steven Goldstein, WSBA #11042 Richard D. Ross, WSBA #34502 Attorneys for Defendant
Certificate of Service
I hereby certify that on this 1st day of April, 2010, the foregoing was electronically filed with the Clerk of the Court using the CM/ECF system, which will send notification of such filing to all parties of record and to The Honorable

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Benjamin H. Settle.
/s/ Richard D. Ross BETTS, PATTERSON & MINES, P.S. One Convention Place 701 Pike Street, Suite 1400 Seattle, Washington 98101-3927 Telephone: [*43] 206-292-9988 Facsimile: 206-343-7053 E-Mail: rross@bpmlaw.com
NOTICE OF MOTION RE-NOTED
Defendants' filed a Motion for Summary Judgment in this matter on April 1, 2010 Dkt. No. 22. The initial motion was noted for April 23, 2010 and was entitled "Defendants' Motion for Summary Judgment." Defendants' wish to re-note their motion to April 30, 2010 and re-name their motion "Defendants' Motion for Partial Summary Judgment." Defendants' attach hereto the "corrected" Motion for Partial Summary Judgment. with the only changes being the noting date and the title of the document.
DATED this 5th day of April, 2010.
BETTS, PATTERSON & MINES, P.S.
By /s/ Steven Goldstein Steven Goldstein, WSBA #11042 Richard D. Ross, WSBA #34502 Attorneys for Defendant
Certificate of Service
I hereby certify that on this 5th day of April, 2010, the foregoing was electronically filed with the Clerk of the Court using the CM/ECF system, which will send notification of such filing to all parties of record and to The Honorable Benjamin H. Settle.
/s/ Gayle Neligan BETTS, PATTERSON & MINES, P.S. One Convention Place 701 [*44] Pike Street, Suite 1400 Seattle, Washington 98101-3927 Telephone: 206-292-9988 Facsimile: 206-343-7053 E-Mail: gneligan@bpmlaw.com

 
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RAYMOND T. BALVAGE and DEBORAH A. BALVAGE, husband and wife; CHARLES E. WEAVER and SUSAN M. WEAVER, husband and wife; JOYCE MARIE
ADAMS; LUVERN HARLAND ALLEN; EDGAR AMES; JAMES ALVIN BAKER and DARLA JEAN BAKER, husband and wife; RALPH ALVIN BARFELL, JR.;
SHARON MARIE BANTA; RAY BODINE and JANIE KAY BODINE, husband and wife; RICHARD ANTHONY BRAGA, JR. and MARGARET LOUISE BRAGA,
husband and wife; CHARLES THOMAS CALDWELL and SANDI KAY CALDWELL, husband and wife; LAREN WILLBUR COLEMAN and PAMELA DENISE COLEMAN, husband and wife; ALVIN DEE COLPITTS and CORABELLE COLPITTS, husband and wife; BETTY GENE DONOGHUE; ELIZABETH ELAINE DUPREE; JOYCE ELAIN
FISCHER; JEANNETTE H. HEADEN; GLENN RICHARD HUESTIS and CAROL NADINE HUESTIS, husband and wife; BARBARA JEAN JOY; MIRIAM MARGARET KENNEDY-ALLEN; GERALD BLAIR KOLB and ETHEL MAY KOLB, husband and
wife; ALFRED WESLEY LEACH and GLORIA EILEEN LEACH, husband and wife; RAYMOND ERNEST MORRIS and CAROLYN L. MORRIS, husband and wife;
ARNOLD NADEAU; KAREN CAMPBELL; BOB PISTONE and DORIS PISTONE, husband and wife; VERN POWELL and SHARON POWELL, husband and wife;
EARLEEN M. RUTHERFORD; CHARLES JOHN SANTINEAU; BARBARA LOUISE PEPPER; LUCAS JOHN SHIMMIN; DON SMITH and DIANE SMITH, husband and wife; DONALD NEIL STROUD and SHARON LEE STROUD, husband and wife; WALTER GORDON WEST and JANET MARIE WEST, husband and wife; BEVERLY WHITE; BOB WHITE and DIANE WHITE, husband and wife; Plaintiffs, v. RYDERWOOD IMPROVEMENT AND SERVICE ASSOCIATION, INC., a Washington non-profit corporation, Defendant.
CASE NO. C09-5409BHS
UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON, TACOMA DIVISION
2009 U.S. Dist. Ct. Motions 607230; 2010 U.S. Dist. Ct. Motions LEXIS 29391
June 17, 2010
Motion for Injunction
VIEW OTHER AVAILABLE CONTENT RELATED TO THIS DOCUMENT: U.S. District Court: Motion(s); Pleading(s)

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COUNSEL: [*1] Joseph E. Lynam, WSBA No. 12728, Abraham K. Lorber, WSBA No. 40668, Attorneys for Plaintiffs, Lane Powell PC, Seattle, WA.
JUDGES: Honorable Benjamin H. Settle
TITLE: Plaintiffs' Motion For Preliminary Injunction
TEXT: I. INTRODUTION AND RELIEF REQUESTED
Plaintiffs hereby move the Court for an Order granting a preliminary injunction containing the injunctive relief stated in the proposed Order filed herewith. This injunction, which will remain in effect until otherwise ordered by the Court, is necessary to cease and correct defendant Ryderwood Improvement and Service Association, Inc.'s ("RISA") discriminatory housing practices.
On June 4, 2010, in its Order Denying Defendant's Motion for Partial Summary Judgment and Granting In Part and Denying in Part Plaintiffs' Motion for Partial Summary Judgment, the Court found RISA had violated 42 U.S.C. § 3601, et seq., the Fair Housing Act ("FHA), by discriminating on the basis of familial status in such a manner that prevented Plaintiffs from selling their homes. n1 The Court ruled RISA may not discriminate on the basis of familial status because it "is not entitled to the HOPA exception [to the FHA]." n2 [*2] Plaintiffs now seek the following injunctive relief that will implement this ruling until otherwise ordered by the Court:
1. RISA shall immediately cease any and all enforcement of age-restrictions on the sale or rental of, or residency in, homes in Ryderwood, Washington;
2. Within three (3) days of entry of the preliminary injunction, RISA shall mail letters (in the form attached to Plaintiffs' proposed Order as Exhibit A) to each and every homeowner in Ryderwood, Washington stating that RISA is not a "55 and older" community and stating that the Court has ordered RISA to immediately cease enforcement of its age-restrictions;
3. Within three (3) days of entry of the preliminary injunction, RISA shall mail letters (in the form attached to Plaintiffs' proposed Order as Exhibit A) to real estate agencies, title companies, and escrow companies who service Ryderwood, Washington (who are listed in Exhibit B to Plaintiffs' proposed Order) explaining RISA is not a "55 and older" community and stating the Court has ordered RISA to immediately cease enforcement of its age-restrictions;
4. Within five (5) days of entry of the preliminary injunction, RISA shall remove any [*3] all signs in the town of Ryderwood, Washington that designate Ryderwood as a "55 and older community," "fifty-five plus community," "55+ community," or in any way refer to or suggest that a "55 and older" or other age-restriction exists in Ryderwood, Washington concerning ownership, rental, or residency of homes; and
5. Within fourteen (14) days of entry of the preliminary injunction, RISA shall amend its bylaws to remove any and all provisions which purport to limit ownership, rental, or residency of homes in Ryderwood, Washington to persons who are ages 55 or older. n3 n4

n1 Dkt. 42, at 14. n2 Id., at 15. n3 The injunctive relief requested by Plaintiff is modeled on the injunctive relief imposed by the court in

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Simovitz v. Chanticleer Condominium Assoc., 933 F. Supp. 1394, 1408 (N.D. Ill. 1996). n4 RCW 64.38.028 allows discriminatory provisions to be removed from bylaws upon the vote of a simple majority of a homeowner's association's board of directors. Accordingly, there is no real obstacle to RISA complying with this aspect of Plaintiffs' requested injunction.
[*4]
This injunctive relief is necessary to enforce the Court's June 4, 2010 Order and to prevent ongoing otherwise irreparable harm to Plaintiffs and their property interests.
II. FACTS
A. The Court's June 4, 2010 Order
On June 4, 2010, this Court entered its Order Denying Defendants' Motion for Partial Summary Judgment and Granting in Part and Denying in Part Plaintiffs' Motion for Partial Summary Judgment ("Order on PMSJs"). n5 In its Order on PMSJs, the Court granted Plaintiffs partial summary judgment on certain of their claims against defendant Ryderwood Improvement and Service Association, Inc. ("RISA"). n6 The Court ruled that RISA has violated 42 U.S.C. § 3601 et seq., the Fair Housing Act ("FHA"), specifically 42 U.S.C. § 3604(a)-(e). n7 The Court ruled that RISA's admitted familial status discrimination is not excused by the exception to the FHA's prohibition on such discrimination contained at 42 U.S.C. § 3607(b), the Housing for Older Persons Act ("HOPA"), because RISA "has not shown compliance with the regulations governing [HOPA]." n8 The Court noted that that it is undisputed [*5] that RISA's familial status discrimination which gives rise to Plaintiffs' claims is ongoing. n9

n5 Dkt. 42. n6 Id., at p. 14. n7 Id., at 13-14. n8 Id., at 15. n9 Id., at 15.

B. Plaintiffs' Otherwise Irreparable Injuries
In support of their Motion for Partial Summary Judgment, Plaintiffs filed declarations of 35 homeowners in Ryderwood which stated the following:
I live . . . . in Ryderwood . . . .
I would like to sell my home and list it on the market as available for sale to anyone, including families with children, because I believe that no enforceable age-restrictions govern the sale of my home or who can live in my home. It is my understanding that local real estate agents will not list my home for sale to families with children but will only list it for sale to persons 55 years of age or older ("Older Persons'). I am concerned about listing my home for sale to Older Persons only because I worry that doing so will expose [*6] me to liability for wrongful discrimination or liability for misrepresentation being made in the sale of my home. I have been unable to sell my home because of this conundrum. n10

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n10 See Exhs. A-II to Dkt. 32 (Declaration of Abraham. K. Lorber in Opposition to Defendant's Motion for Partial Summary Judgment).
Plaintiffs still want to sell their homes and move away from Ryderwood. n11 However, because RISA has not been ordered to cease its discriminatory policies, the conundrum faced by Plaintiffs still exists. n12 Indeed, local real estate agents, title officers, and escrow officers are not aware of the Court's Order on PMSJs and many residents believe that the age-restrictions are still in force. n13 Additionally, signs remain posted in Ryderwood which proclaim its status as a "55 and older" community and which advise potential buyers not to purchase unless they "qualify." n14
n11 Declaration of Charles E. Weaver in Support of Plaintiffs' Motion for Preliminary Injunction ("Weaver Decl."), P 4. [*7]
n12 Id. n13 Id., at P 5. n14 Id., at P 6; Exh. A. to Weaver Decl.
The prime home buying season in Ryderwood is in the summer. n15 If they are forced to wait until after trial for injunctive relief, Plaintiffs will miss the opportunity to sell their homes during this year's home-buying season. n16 If preliminary relief is granted, Plaintiffs will be able to take advantage of the summer home buying season. n17 The injunctive relief requested by Plaintiffs' is essential to ensuring the marketability of their homes, preventing ongoing illegal discrimination against families with children, and implementing the Court's Order on PMSJs.
n15 Id., at P 7. n16 Id. n17 Id.
C. Actions to be Required and Restrained Plaintiffs ask the Court to order RISA to stop discriminating, to advise the community, local real estate agents, title
officers, and escrow [*8] officers n18 that Ryderwood is not a "55 and older" community, and to take down signs that indicate Ryderwood is a "55 and older community," and excise discriminatory provisions from its bylaws.
n18 A list of local real estate agencies, title companies, and escrow companies operating in Ryderwood is contained at P8 of the Weaver Declaration.
As the Court noted in its Order on PMSJs, it is undisputed that:

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RISA . . . . [enforces it age-restrictions by] posting signs throughout the community stating that residency is restricted to those who are '55 and older,' disclosures to real estate agents that work in the area, disclosures to title companies that work in the area, and disclosures to prospective purchasers and visitors to Ryderwood. n19
RISA discriminatory signs are still up in various locations around the community. n20 RISA has not informed real estate agents or title companies that it is not entitled to the HOPA exception. n21 There is still uncertainty in the community as to the enforceability [*9] of RISA's age-restrictions. n22 Unless and until the Court orders these matters corrected, RISA's age-restrictions will remain the de facto law of the town.

n19 Dkt. 42, pp. 4-5 (quotation marks modified). n20 Weaver Decl., P 6; Exh. A to Weaver Decl. n21 Weaver Decl., P 5. n22 Id.
III. EVIDENCE RELIED UPON
This Motion relies upon the Declaration of Charles E. Weaver in Support of Plaintiffs' Motion for Preliminary Injunction (and exhibit thereto); the Declaration of Abraham. K. Lorber in Opposition to Defendant's Motion for Partial Summary Judgment and the attached 35 Declarations of Plaintiff-homeowners; and the pleadings and papers on file with the Court in this matter.
IV. ISSUE
Whether the Court should enter a preliminary injunction consistent with its earlier Order on PMSJs in order to prevent Plaintiffs from suffering otherwise irreparable harm arising out of RISA's discriminatory housing practices and to prevent RISA from engaging in ongoing illegal [*10] familial status discrimination?
V. ARGUMENT
42 U.S.C. § 3613(c)(1) states:
In a civil action under [the private enforcement provision of the Fair Housing Act] . . . . , if the court finds that a discriminatory housing practice has occurred or is about to occur, the court may . . . . grant as relief, as the court deems appropriate, any permanent or temporary injunction, temporary restraining order, or other order (including an order enjoining the defendant from engaging in such practice or ordering such affirmative action as may be appropriate).
A plaintiff seeking a preliminary injunction "must establish [1] he is likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in the public interest." n23 A court granting a preliminary injunction may restrain or require acts by the non-moving party. n24

n23 Winter v. Natural Res. Def. Council, Inc., 555 U.S. , 129 S.Ct. 365, 374 (2008) (internal citations omitted). [*11]

2009 U.S. Dist. Ct. Motions 607230; 2010 U.S. Dist. Ct. Motions LEXIS 29391, *11 n24 See Fed. R. Civ. P. 65(d)(1)(C) (emphasis added).

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A. Plaintiffs Have Already Succeeded on the Merits Regarding the Subject Matter of the Preliminary Injunction. In its Order on PMSJs, the Court ruled that RISA does not qualify for the HOPA exception to the FHA and that
Plaintiffs have prevailed, as a matter of law, on their claims of FHA violations arising out of their inability to sell their homes. n25 Even if RISA ultimately prevails on Plaintiffs' remaining FHA claims (which Plaintiffs assert it will not), Plaintiffs have already succeeded in proving that RISA's familial status discrimination is illegal. Accordingly, Plaintiffs are likely to succeed on the merits and have met the first prong of the Winter test.
n25 Dkt. 42, p. 15, 14.

B. Plaintiffs Continue to Suffer Otherwise Irreparable Harm as a Result of RISA's Discrimination.
A preliminary injunction is necessary to [*12] prevent Plaintiffs' otherwise irreparable injuries. Every day that RISA's age-restrictions remain in place and every day that real estate agents refuse to list Plaintiffs' home for sale to the general public is another day that Plaintiffs' homes remain off the market and unavailable to potential buyers. The majority of homes sold in Ryderwood sell over the summer. n26 Thus, if Plaintiffs are forced to wait until after trial to obtain injunctive relief, their ability to list their homes during the prime selling season will be irreparably delayed another year.
n26 Weaver Decl, P 7.
If the Court grants the requested injunctive relief, harm to Plaintiffs will be averted. Plaintiffs will no longer be prevented from listing their homes for sale to the general public because the community and local real estate agents, title companies, and escrow companies will be presented with proof that the age-restrictions are unenforceable. Plaintiffs will then be able to participate in the market without fear of incurring liability [*13] for housing discrimination. Moreover, RISA unlawful discrimination will be stopped. Because the requested injunctive relief will prevent otherwise irreparable harm, Plaintiffs have met the second prong of the Winter test.
C. The Balance of Equities and Public Policy Strongly Support Granting the Injunction.
"It is the policy of the United States to provide, within constitutional limitations, for fair housing throughout the United States." n27 "Exemptions from the Fair Housing Act are to be construed narrowly, in recognition of the important goal of preventing housing discrimination." n28
n27 42 U.S.C. § 3601. n28 Massaro v. Mainlands Section 1 & 2 Civic Ass'n, Inc., 3 F.3d 1472, 1475 (11th Cir. 1993).

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With this Motion, Plaintiffs seek the Court's help in exercising a fundamental property right: the right to sell their homes on the open market. Additionally, the requested injunctive relief will prevent RISA from engaging in ongoing illegal [*14] familial status discrimination. The Court has ruled that RISA does not qualify for exceptions to the FHA that would otherwise allow it to discriminate. Thus, equity and public policy support the enjoining RISA's ongoing discriminatory conduct. The only "burden" RISA might "suffer" if this injunction is granted is the money it will spend on postage and the nominal costs it might incur for removing and storing signs. These "burdens" cannot justify RISA's ongoing practice of unlawful familial discrimination. Accordingly, the third and fourth prongs of the Winter test are met and the preliminary injunction should issue.
D. No Security is Necessary for Entry of the Injunction.
Fed. R. Civ. P. 65(c) states:
The court may issue a preliminary injunction or a temporary restraining order only if the movant gives security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained.
However, "[t]he district court may dispense with the filing of a bond when it concludes there is no realistic likelihood of harm to the defendant from enjoining his or her conduct." n29

n29 Jorgensen v. Cassiday, 320 F.3d 906, 920 (9th Cir. 2003) (citing Barahona-Gomez v. Reno, 167 F.3d 1228, 1237 (9th Cir.1999)).
[*15]
Here, RISA will not be harmed by the issuance of Plaintiffs' requested injunction. The injunction requested by Plaintiff does not affect property owned by RISA nor does it impede RISA's alleged ability to collect dues. Even if somehow RISA is later found to have been improperly enjoined (of which Plaintiffs contend there exists no realistic chance), then there is no economic damages which will have been incurred by RISA. Based on the Courts' Order on PMSJs, Plaintiffs' are almost certain to obtain the declaratory and injunctive relief in final judgment. Accordingly, Plaintiffs request that requested injunction issue without the posting of security.
VI. CONCLUSION
The Court has ruled, as a matter of law, that RISA's conduct violates the FHA and that RISA does not qualify for the HOPA exception. Plaintiffs respectfully submit that the Court should grant preliminary injunctive relief consistent with this ruling.
DATED: June 17, 2010
LANE POWELL PC
By /s/ Joseph E. Lynam Joseph E. Lynam, WSBA No. 12728 Abraham K. Lorber, WSBA No. 40668 Attorneys for Plaintiffs Lane Powell PC 1420 Fifth Avenue, Ste. 4100 Seattle, WA 98101-2338

2009 U.S. Dist. Ct. Motions 607230; 2010 U.S. Dist. Ct. Motions LEXIS 29391, *15

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T: 206-223-7000 F: 206-223-7107 Email: [*16] lynamj@lanepowell.com Email: lorbera@lanepowell.com
CERTIFICATE OF SERVICE
The undersigned certifies under penalty of perjury under the laws of the State of Washington, that on June 17, 2010, the document attached hereto was presented to the Clerk of the Court for filing and uploading to the CM/ECF system. In accordance with their ECF registration agreement and the Court's rules, the Clerk of the Court will send e-mail notification of such filing to the following persons:
Steven Goldstein Betts, Patterson & Mines, P.S. One Convention Place, Suite 1400 701 Pike St. Seattle, WA 98101 Email: sgoldstein@bpmlaw.com
DATED June 17, 2010 at Seattle, Washington.
/s/ Joseph E. Lynam Joseph E. Lynam, WSBA No. 12728
LANE POWELL PC 1420 Fifth Avenue, Suite 4100 Seattle, WA 98101-2338 Tel: 206.223.7000 Fax: 206.223.7107 Email: lynamj@lanepowell.com
Attorney(s) for Plaintiffs
[SEE [PROPOSED] ORDER IMPOSING PRELIMINARY INJUNCTION IN ORIGINAL]
[SEE DECLARATION OF CHARLES WEAVER IN SUPPORT OF PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION IN ORIGINAL]

 
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RAYMOND T. BALVAGE and DEBORAH A. BALVAGE, husband and wife; CHARLES E. WEAVER and SUSAN M. WEAVER, husband and wife; JOYCE MARIE
ADAMS; LUVERN HARLAND ALLEN; EDGAR AMES; JAMES ALVIN BAKER and DARLA JEAN BAKER, husband and wife; RALPH ALVIN BARFELL, JR.;
SHARON MARIE BANTA; RAY BODINE and JANIE KAY BODINE, husband and wife; RICHARD ANTHONY BRAGA, JR. and MARGARET LOUISE BRAGA,
husband and wife; CHARLES THOMAS CALDWELL and SANDI KAY CALDWELL, husband and wife; LAREN WILLBUR COLEMAN and PAMELA DENISE COLEMAN, husband and wife; ALVIN DEE COLPITTS and CORABELLE COLPITTS, husband and wife; BETTY GENE DONOGHUE; ELIZABETH ELAINE DUPREE; JOYCE ELAIN
FISCHER; JEANNETTE H. HEADEN; GLENN RICHARD HUESTIS and CAROL NADINE HUESTIS, husband and wife; BARBARA JEAN JOY; MIRIAM MARGARET KENNEDY-ALLEN; GERALD BLAIR KOLB and ETHEL MAY KOLB, husband and
wife; ALFRED WESLEY LEACH and GLORIA EILEEN LEACH, husband and wife; RAYMOND ERNEST MORRIS and CAROLYN L. MORRIS, husband and wife;
ARNOLD NADEAU; KAREN CAMPBELL; BOB PISTONE and DORIS PISTONE, husband and wife; VERN POWELL and SHARON POWELL, husband and wife;
EARLEEN M. RUTHERFORD; CHARLES JOHN SANTINEAU; BARBARA LOUISE PEPPER; LUCAS JOHN SHIMMIN; DON SMITH and DIANE SMITH, husband and wife; DONALD NEIL STROUD and SHARON LEE STROUD, husband and wife; WALTER GORDON WEST and JANET MARIE WEST, husband and wife; BEVERLY WHITE; BOB WHITE and DIANE WHITE, husband and wife, Plaintiffs, vs. RYDERWOOD IMPROVEMENT AND SERVICE ASSOCIATION, INC., a Washington non-profit corporation, Defendant.
CASE NO. C09-5409BHS
UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON, TACOMA DIVISION
2009 U.S. Dist. Ct. Motions 607230; 2010 U.S. Dist. Ct. Motions LEXIS 29393
July 6, 2010
Motion for Injunction
VIEW OTHER AVAILABLE CONTENT RELATED TO THIS DOCUMENT: U.S. District Court: Motion(s); Pleading(s)

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COUNSEL: [*1] BETTS, PATTERSON & MINES, P.S., Seattle, Washington, Steven Goldstein, WSBA #11042, Richard D. Ross, WSBA #34502, Attorneys for Defendant.
JUDGES: Honorable Benjamin H. Settle
TITLE: Defendant's Opposition to Plaintiff's Motion For Preliminary Injunction
TEXT: I. INTRODUCTION AND RELIEF REQUESTED
Plaintiffs ask this Court to issue an injunction that will bring Ryderwood's 57 year history to a close. The relief is not appropriate. A preliminary injunction is warranted only when it is manifest that the "normal legal avenues are inadequate, that there is a compelling need to give the plaintiff the relief sought, and the injunction will not wreak greater harm on the party enjoined." Plaintiffs cannot meet this standard. Their harms are not irreparable, the relief requested will not remedy the conundrums they claim as harm, and the balance of equities favors leaving this community at status quo until the merits of Plaintiffs' claims are finally determined.
If the Court decides that injunctive relief is appropriate, defendant requests: (1) that a bond be issued; (2) that more time be granted to comply with the requests; and (3) that the Order be stayed pending certification to the Court [*2] of Appeals or until entry of final judgment. Such a stay is necessary in order to preserve the status quo until the question of compliance with HOPA can be appealed.
II. FACTS
A. The Age Restrictions Are Conditions Of Title, Not RISA Policies.
Plaintiffs' claim harm because RISA allegedly failed to comply with HOPA, not because of the 55 and older restrictions. No Plaintiff claims they were unaware of the 55 and older policy when they moved to Ryderwood. n1 Many admit they had actual notice. n2 All had constructive notice. The restriction is present on every owner's deed. n3 The restriction is reiterated in the bylaws and recorded on all properties. n4 The restrictions have been there since 1953, when Senior Estates recorded Ryderwood Plat No. 1 as a community for retirees and bona fide recipients of a pension.
n1 Declaration of Sally-Gene DeBriae in Support of RISA's Opposition to Motion for Preliminary Injunction ("DeBriae Dec.") P 4; see also Declaration of Richard D. Ross in Support of Opposition to Motion for Preliminary Injunction ("Ross Dec.") P 2 & Exh. A thereto (sample Senior Estates deed for predecessor owner of Balvage Plaintiffs' residence). [*3]

n2 Ross Dec. P 3 & Exh. B thereto (Plaintiff Resignation Letters).
n3 Dkt. 24 (DeBriae Dec. ISO RISA's Motion for Partial Summary Judgment) P 3, Exh. B thereto (Senior Estates Deed).
n4 Dkt. 24 P 5, Exh. D thereto (Original RISA Bylaws, enacted 1975)
RISA enforces the age restrictions for the benefit of Ryderwood's residents. n5 RISA does not make money by enforcing the age restrictions, it owns no homes in Ryderwood and is not a profit seeking entity. n6 Its officers and volunteers are all unpaid residents who offer their time as a service to their fellow homeowners. n7 RISA does not profit by enforcing the bylaws. n8 Its right to collect and assess dues relates solely to the ministerial community upkeep

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aspects of its mission. RISA's primary role is to keep the streetlights on; to arrange for garbage to be collected; to maintain public buildings for resident's use, such as a pool room, a community hall, and a local park. n9
n5 DeBriae Dec. P 4. n6 Id. n7 Id. P 3. [*4]

n8 Id.
n9 Id. P 3.
The Court held that RISA failed to complete an official HOPA survey from 2000 until 2005. But RISA did survey and verify the ages of its residents during that time period, even if not per the standards of HOPA. It monitored home sales, verified that new residents were 55 or older, and informed prospective purchasers - when asked - that Ryderwood was a 55 and older community. n10 Once a year RISA volunteers walk door-to-door to update the community phone book. n11 While doing so, the volunteer notes if a resident is new. If so, the resident is informed that the bylaws required them to join RISA. When they joined, the membership certificate required them to attest that they would comply with all bylaws, including the age restriction. n12 After 1997, the membership certificate was amended to include a requirement that all residents attest to their date of birth. n13
n10 Dkt. 24 (DeBriae Dec. ISO RISA Opp. to Plaintiffs MSJ) PP 18-22, Exs. J & K.
n11 Id.
n12 Id. P 19. [*5]

n13 Id.
B. The Plaintiffs Benefitted From RISA's Efforts. Until 2007, each of these Plaintiffs accepted the benefits of RISA's efforts. As stated above, the restrictions were present on all of the Plaintiffs' titles. None of the Plaintiffs objected to the age restrictions. n14
n14 DeBriae Dec. P4.
Many of the Plaintiffs admit they moved to Ryderwood because it was a 55 and older community. The Caldwells state that a 55 and older community was "just what we were looking for!" n15 They complain that RISA was not diligent enough in enforcing the age restrictions, saying "we have neighbors (the homeowners) that are under 55!" Mr. Kolb's resignation letter says he resigned because RISA was not sufficiently enforcing its age restrictions, noting that children were living in the community. n16 He states that he does not want to be bothered by children. n17 Deborah

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Balvage complains "we thought that this was [*6] a 55+ community with requirements and restrictions." n18
n15 Ross Dec. Exh. B (PLA562). n16 Id., (PLA 1213-14) n17 Id. n18 Id. (PLA357)
The Plaintiffs do not allege that the 55 and older criteria injures them. They allege that RISA's failure to comply with HOPA causes them harm. They cite HOPA only because they fear RISA's failure to keep HOPA may expose them to lawsuits. And most cite other reasons for resigning. The Powells, for example, resigned because "RISA kept raising the dues" and because they were required to pay dues on two houses they owned. n19 The Wests do not complain of the age restrictions, they complain that RISA improperly spent monies. n20 And Ms. Beverly White resigned because of exposure to lawsuits, because the store is no longer open and bus service is irregular. n21
n19 Id. (PLA1565-66) n20 Id. (PLA2029) n21 Id. (PLA2062)
[*7] C. Plaintiffs Actively Promoted RISA's Age Compliance Requirements. Many Plaintiffs helped enforce the age restrictions. Charles Weaver was formerly the Treasurer and legal liaison
for RISA. n22 Joyce Adams served as an officer, from June, 2005 until April, 2007. n23 And Joyce Fisher served as an officer in 2007. n24 In addition to enforcing the bylaws and other age restrictions, all were actively involved in RISA's efforts to comply with HOPA. These three were the primary officers who led RISA's effort to comply with HOPA in 2006. n25
n22 Dkt. 24 PP 10-14; id. Exhs. E & F. n23 Dkt. 28 P 9, Exh. H thereto. n24 Id. n25 DeBriae Dec. P 5.
Mr. Weaver's role went beyond mere compliance with HOPA. As legal liaison, Mr. Weaver advised RISA about how to comply with HOPA. In an email dated July 29, 2007, he informed the Board that RISA only needed to retain HOPA surveys for five years. n26 He asked that an Officer resign because he failed to understand HOPA requirements. n27 [*8] And he enforced compliance, such as by erecting the signs that Plaintiffs now claim is causing their irreparable harm. n28 During an Executive Session, he reminded the Board that:
That's why all the yellow signs are here, they weren't here pre-Chuck, they were here post-Chuck. n29

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n26 Ross Dec. Exh. C (Email to RISA Board Member Claudia Drake).
n27 Id. Exh. D (Email to Board requesting Mr. Mulkey's resignation).
n28 DeBriae Dec. P 6.
n29 Dkt. 24 P 13, Exh. F, p. 2.
As a result of their efforts and advice, RISA believed it was fully compliant with HOPA. Their basis for this belief came from counsel, their own understanding, and Mr. Weaver. n30 During a July, 2007 Board meeting he provided the officers with case law discussing the requirements of HOPA, stating "if members argued with you that you are not following the law, you can cite this that you are following the law." n31 In an email dated June 5, 2007, Mr. Weaver told a fellow Ryderwood homeowner that:
Today [*9] we are a 55+ community . . . HOPA is an exception to [the] Fair Housing Act. Simply put HOPA allows certain communities to discriminate on age and family status providing [it] meets certain criteria which we certainly do. n32

n30 The Board's reliance was not unfounded. Mr. Weaver served as legal liaison and the sole conduit for information flowing from RISA's attorney, Frank Randolph. Ross Dec. P 6. Plaintiffs have also provided documents showing that Mr. Weaver "used to teach HOPA to retirement communities." Id. Exh. E. As an expert on the subject, it is questioned why he advised RISA to conduct the 2006 and 2007 HOPA surveys if for naught.
n31 Dkt. 24, Exh. F, p. 2.
n32 Ross Dec. Exh.F (Email to Joe Poor dated June 5, 2007), p. 2 (emphasis added).
This is not a case where Mr. Weaver later learned he was wrong and informed the Board of his nascent understanding. As discussed in more detail at Section VI(C), infra, while he was advising the Board it was compliant with the law, he [*10] was simultaneously gathering evidence to file suit against RISA; acquiring a body of documents he called his "Get Out Of Jail Free Card." n33 And his reason behind gathering that information was not to benefit families, it was solely to ensure that he would not "suffer a financial loss." n34
n33 Id. Exh. G.
n34 Id.
D. Plaintiffs' Motion for Injunctive Relief.
Plaintiffs ask the Court to enjoin RISA from enforcing HOPA. n35 They ask that all deed restrictions be removed, that RISA inform all real estate agents that it is no longer 55 and older, and that the signs Mr. Weaver demanded by erected be removed. In support, they offer a single declaration - that of Charles Weaver - who contends that these vestiges of Ryderwood's 57 year history are causing the Plaintiffs "irreparable harm." n36 Mr. Weaver says that an injunction is necessary so that Plaintiffs' homes can be put up for sale immediately as the prime buying season is the summer. He also states that all Plaintiffs want to move from Ryderwood. [*11]

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n35 Dkt. 48.
n36 Dkt. 49.
III. EVIDENCE RELIED UPON
RISA's opposition to this Motion for summary judgment is based on the pleadings and motions of record; the Declaration of Richard D. Ross in Support, and all exhibits; and the Declaration of Sally-Gene DeBriae in Support, and all exhibits.
IV. QUESTIONS PRESENTED
1. A preliminary injunction that modifies the status quo is inappropriate where it would render RISA's right to appeal moot.
2. A preliminary injunction should be denied where there is no evidence of irreparable harm and the relief requested would not remedy Plaintiffs' conundrums.
3. Age restrictions cannot constitute irreparable harm when all Plaintiffs agreed to the restrictions and many Plaintiffs helped enforce the restrictions.
4. If granted, the terms of the preliminary injunction must be feasible.
5. A preliminary injunction cannot be granted unless the moving party provides security.
V. STANDARD OF REVIEW FOR PRELIMINARY INJUNCTION [*12]
"A preliminary injunction is an extraordinary remedy never awarded as of right." n37 Plaintiffs must satisfy a four part test: (1) that they have suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction. n38
n37 Winter v. Natural Res. Def. Council, Inc., 555 U.S. , 129 S.Ct. 365, 376 -377 (2008) (citing Munaf v. Geren, 553 U.S. 674, 128 S.Ct. 2207, 2218-19 (2008)).
n38 See, e.g., Weinberger v. Romero-Barcelo, 456 U.S. 305, 311-313, 102 S.Ct. 1798, 72 L.Ed.2d 91 (1982); Amoco Production Co. v. Gambell, 480 U.S. 531, 542, 107 S.Ct. 1396, 94 L.Ed.2d 542 (1987).
Courts "must balance the competing claims of injury and must consider the effect on each party [*13] of the granting or withholding of the requested relief." n39 "In exercising their sound discretion, courts of equity should pay particular regard for the public consequences in employing the extraordinary remedy of injunction." n40 Where a party seeks a mandatory injunction, as opposed to a prohibitory injunction, the Plaintiff is held to even higher scrutiny. n41
n39 Id. (citing Amoco Production Co. v. Gambell, 480 U.S. 531, 542, 107 S.Ct. 1396, 94 L.Ed.2d 542 (1987))
n40 Id.

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n41 Dahl v. HEM Pharmaceuticals Corp., 7 F.3d 1399, 1403 (9th Cir.1993).
VI. ARGUMENT
A. The Requested Relief Should Be Stayed Pending Final Judgment Or Appeal.
On June 4, 2010, the Court held that RISA may not rely on the HOPA defense. If the injunction is granted, and the Court declines to certify the question of RISA's compliance with HOPA for immediate appellate review, RISA's right to appeal at the close of trial may be rendered moot. Plaintiffs would be able to sell [*14] their homes to anyone - not just families, but any purchaser - disrupting the homogenous character of this community before the Court of Appeals decides whether RISA complied with HOPA. To the extent that the Court believes the injunction is appropriate, RISA notes this is another reason why the Court should certify the question of RISA's right to rely on HOPA for immediate appellate review.
B. The Public Consequences Of Injunctive Relief Outweigh Plaintiffs' Private Injuries.
1. Plaintiffs Cannot Show Irreparable Harm.
Plaintiffs have not shown irreparable harm. Their claim rests solely on the notion that the age restrictions remain "conundrums" that hamper Plaintiffs' ability to sell their houses immediately. RISA contests that this is harm. Plaintiffs can sell the same title they obtained when they purchased their homes. But, if harm, it is not irreparable. An injury is irreparable when it involves the loss of a "unique opportunity," n42 will result in irreversible losses (such as the bankruptcy of a company), or causes emotional injuries, such as depression. n43 The age restrictions are only irreparable harm if the delay in obtaining relief will cause some injury [*15] above and beyond their claims. As noted by Wright & Miller, the focus is not on the harm, but on the immediacy of the harm. The moving party must show it is "likely to suffer irreparable harm before a decision on the merits can be rendered." n44
n42 Qantum Communications Corp. v. Star Broadcasting, Inc., 382 F.Supp.2d 1362, 1366 (S.D.Fla., 2005).
n43 See Chalk v. U.S. Dist. Court Cent. Dist. of California, 840 F.2d 701, 709 (9th Cir. 1988).
n44 11A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure § 2948.1, p. 139 (2d ed.1995).
Plaintiffs do not meet this standard.
The sole basis for Plaintiffs' claim is the Declaration of Mr. Weaver, who says more homes sell in the summer and that all 35 Plaintiffs want to list their homes for sale now. n45 Even if true (Mr. Weaver is not a real estate agent), and Mr. Weaver could testify as to the intent of all plaintiffs, which he cannot, this is not "irreparable harm." At best it shows Plaintiffs want relief [*16] today. Every plaintiff in every case would like immediate relief. That alone does not make it irreparable harm. n46 Nor is it substantiated. Mr. Weaver is not competent to attest that all Plaintiffs want to list their homes immediately. And the Plaintiff declarations he cites to - submitted in support of Plaintiff's Opposition to RISA's Motion for Partial Summary Judgment - say only that each "would like to sell my home and list it on the market as available for sale to anyone." n47 In other words, they want to be able to list their houses for sale without restrictions; none say they want to list their homes now or move immediately. n48
n45 Dkt. 49 (Motion for Preliminary Injunction), p. 5.
n46 See Arcamuzi v. Cont'l Air Lines, Inc., 819 F.2d 935, 938 (9th Cir.1987) ("temporary economic loss alone generally is not a basis for injunctive relief").

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n47 See Dkt. 32.
n48 Furthermore, counsel for RISA requested that Plaintiffs supplement their discovery responses to provide evidence showing each wants to list their homes for sale immediately. The only Plaintiff documents provided were from Plaintiffs Robert and Doris Pistone, which state they listed their home for sale in 2009 and received no offers. Ross Dec. Exh. .
[*17]
Furthermore, the injunction would not remedy their injury. It is axiomatic that an injunction is not justified unless the relief will prevent the alleged irreparable harm, e.g., "that irreparable injury is likely in the absence of an injunction." n49 Their proposal will not accomplish this. The Plaintiffs don't claim to have a moral qualm with the age restrictions, their concern is about misrepresenting conditions - restricted or not - to prospective buyers. What Plaintiffs claim as harm is the conundrum posed by the uncertain legality of the current age restrictions, that is:
I am concerned about listing my home to sale to Older Persons only because I worry that doing so will expose me to liability for wrongful discrimination or liability for misrepresentations being made in the sale of my house.
n49 Winter, 129 S.Ct. 365, 375 -376 (2008) (citations omitted); see also Blackman v. District of Columbia, 454 F.Supp.2d 1, 3 (D.D.C., 2006) (discussing fact that injunctive relief was denied because the relief proposed was "ineffective and impractical").
[*18]
This injunction will not remedy this fear. Per Washington State's disclosure laws, material facts must be disclosed to all purchasers. n50 Whether granted or not, the conundrum will remain until this suit is fully complete. If the injunction is denied, Plaintiffs must disclose this lawsuit. If the injunction is granted, Plaintiffs must still disclose this lawsuit. The injunction will not remedy their conundrums one iota. If anything, removing the restrictions and signage will only make the Plaintiffs' concerns more concrete. Today the age restrictions are obvious. If removed, the age restrictions will be concealed. This will put the onus on the Plaintiffs to disclose this litigation as well as to accurately disclose the potential pitfalls for buyers if the age restrictions are ultimately allowed to be reinstated. With no signs or covenants of record, such restrictions would become concealed facts "not reasonably ascertainable to the buyer." n51
n50 Failure to disclose a material fact, where there is a duty to disclose, is fraudulent. Obde v. Schlemeyer, 56 Wn.2d 449, 353 P.2d 672 (1960). [*19]

n51 See Alexander Myers & Co. v. Hopke, 88 Wn.2d 449, 565 P.2d 80 (1977) (holding that seller has a duty to disclose material facts that are concealed).
2. RISA Will Be Irreparably Harmed.
Injunctive relief should be granted "sparingly." The policy against imposing injunctive relief before the merits of the suit are adjudicated becomes more pronounced when the burden on the defendant exceeds the benefit to the moving party. When balancing equities, the court must weigh the disadvantages to the enjoined party versus the benefits

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provided the moving party. n52 If "the burden of an interlocutory injunction (is) all out of balance with the benefit to be obtained by the plaintiff," the injunction must be denied. n53 This is especially so where the injunction will change the status quo - as here - since mandatory relief "should not be granted except in rare instances in which the facts and law are clearly in favor of the moving party." Miami Beach Fed. Savs. & Loan Ass'n v. Callander, 256 F.2d 410, 415 (5th Cir. 1958).
n52 Hamilton Watch Co. v. Benrus Watch Co., Inc., 206 F.2d 738, 743 (2d Cir. 1953); Coffee Dan's, Inc. v. Coffee Don's Charcoal Broiler, 305 F.Supp. 1210, 1216 (N.D.Cal.1969). [*20]

n53 Alpha Distributing Co., Inc. v. Jas. Barclay and Co., Ltd., 215 F.2d 510, 511 (9th Cir. 1954).
The benefit sought by Plaintiffs by virtue of this injunction would be negligible, if beneficial at all. By contrast, the impact on Ryderwood will be substantial. By removing all age restrictions permanently, including those on properties that do not belong to the Plaintiffs, the injunction will terminate the 57 year history of Ryderwood as a retirement community. Once lost, that status will be virtually impossible to regain. Plaintiffs will be free to sell their homes to anyone, potentially mooting any order by an appellate court. In other words, Plaintiffs will achieve, by injunction, what even the Court of Appeals may not be able to undo: they will bring Ryderwood to an end.
Plaintiffs may respond to this argument by claiming that discriminatory conduct should not be balanced against the conduct of a wrongdoer. But there is no suggestion that RISA was operating out of a bad faith desire to discriminate against families, it was merely upholding the private contractual obligations [*21] that have existed for 57 years. All Plaintiffs willingly moved to Ryderwood because it was a 55 and older community and all accepted and endorsed RISA's efforts to maintain that status. They believed they were compliant, as did Mr. Weaver, Ms. Adams and Ms. Fisher (if not, why did they shepherd the 2006 and 2007 HOPA surveys?).
Finally, it is relevant that Plaintiffs ask the Court to grant affirmative relief that would modify the status quo. The basic function of a preliminary injunction is to preserve the status quo pending a determination of the action on the merits. n54 Plaintiffs' ask for the status quo - which has exited for 57 years - to change. As the 9th Circuit Court of Appeals held in Stanley v. University of Southern California, where "a mandatory preliminary injunction is requested, the district court should deny such relief unless the facts and law clearly favor the moving party." n55 Such orders are disfavored, particularly where they will permanently impact the enjoined party's rights, as here. n56
n54 Chalk v. U.S. Dist. Court Cent. Dist. of California, 840 F.2d 701, 704 (9th Cir. 1988) (citations omitted). [*22]

n55 Stanley v. University of Southern California, 13 F.3d 1313, 1320 (9th Cir.1994) (quoting Martin v. International Olympic Committee, 740 F.2d 670, 675 (9th Cir.1984).)
n56 Id. (holding "[a] mandatory injunction 'goes well beyond simply maintaining the status quo pendente lite [and] is particularly disfavored'")(citing Anderson v. United States, 612 F.2d 1112, 1114 (9th Cir.1979).
All told, the balance of equities favors RISA. As noted in the case of Dorfmann v. Boozer, "even where denial of a

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preliminary injunction will harm the plaintiff, the injunction should not be issued where it would work a great and potentially irreparable harm to the party enjoined." n57 This injunction will work an irreparable harm. And it will only serve the private motives of persons for whose benefit RISA acted.
n57 Dorfmann v. Boozer, 414 F.2d 1168, 1173 (D.D.C. 1969).
[*23]
3. Public Interest Favors Denial Of This Injunction.
The public's interest in this injunction is also relevant. Courts define public interest "by reference to the policies expressed in legislation." People of State of Cal. ex rel. Van De Kamp v. Tahoe Regional Planning Agency, 766 F.2d 1319, 1324 (9th Cir. 1985) (citing Virginian Ry. Co. at 551-52, 57 S.Ct. at 601- 602). Here, the legislative policies show two competing public interests: senior housing versus family housing. Both are worthy of protection. See Cong. Rec. H4360 at H4360 (Rep. Canady) ("[t]he legislation strikes a reasonable compromise - protecting the rights of families with children and the security and peace of mind of senior citizens."). But only one of the litigants seeks to promote one of these objectives: RISA.
RISA's goal is to protect Ryderwood as a retirement community. The Plaintiffs' goal, on the other hand, is to protect their property rights. Property rights are important but each owner willingly agreed to these provisions when they moved to town. Nor will opening this up to all comers benefit families. Plaintiff's injunction does not ask for the Court to limit the [*24] holding to persons 55 and older and families, it asks for all age restrictions to be removed. In essence, Plaintiffs' goal is to remove a condition of title they believe hinders the market for their homes. There is no public policy goal here. As the Supreme Court held in the matter of Yakus v. U.S.: "[W]here an injunction is asked which will adversely affect a public interest for whose impairment, even temporarily, an injunction bond cannot compensate, the court may in the public interest withhold relief until a final determination of the rights of the parties, though the postponement may be burdensome to the plaintiff." n58
n58 Yakus v. U. S., 321 U.S. 414, 440, 64 S.Ct. 660, 675 (1944).
This factor bolsters RISA's argument that a stay or immediate appeal is appropriate. Although the Court held that RISA cannot rely on HOPA, this case presents novel issues never considered by any Court before that directly impacts the public interest of protecting senior housing. This community should [*25] be allowed to remain at status quo until the Court of Appeals has issued its decision in this matter.
4. The Court's Ruling Does Not Necessarily Require The Restrictions Be Removed Permanently.
The final element considered is likelihood of success on the merits. RISA concedes that the relief sought arguably flows from the Court's Order. But that does not necessarily mean Plaintiffs' proposal are appropriate. The Court held that RISA's past failures preclude reliance today, but not forever. As noted by the Court in Massaro v. Mainlands, past failures to comply with HOPA do not mean a community is "permanently enjoined from enforcing" HOPA. Massaro v. Mainlands Section 1 & 2 Civic Ass'n, Inc., 3 F.3d 1472, 1482, fn. 35 (11th Cir. 1993). Whether - and how - RISA can rely on HOPA in the future is an open question that remains. The following questions remain:
1. Are all residents required to remove the age restrictive covenants and conditions from their title documents?
2. How long do the age restrictions need to be removed for?

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3. Can RISA impose restrictions against persons not protected by the familial status provision, e.g. residents who [*26] do not meet the definition of a "family" under the FHA?
4. Are the covenants that restrict age enforceable by fellow residents?
In light of these questions, and the pending request that this matter be certified for appeal, RISA does not believe Plaintiffs have shown they are more than likely to obtain the requested relief.
C. RISA's Actions Were Done For Plaintiffs' Benefit.
As an equitable doctrine, the Court must also consider inherent justice. Plaintiffs focus on RISA's failure to comply without considering the entire picture. The facts show that all Plaintiffs moved to Ryderwood knowing it was an age restricted community; that RISA enforced the restrictions for the benefit of all residents (including the Plaintiffs); that the Plaintiffs benefitted from RISA's acts; and that at least three Plaintiffs actively assisted RISA by enforcing those acts as well.
"It is a settled and ancient maxim that, 'He who comes into equity must come with clean hands.'" n59 Describing the clean hands doctrine, the 5th Circuit Court of Appeals held:
This maxim is far more than a mere banality. It is a self-imposed ordinance that closes the doors of a court of equity to one [*27] tainted with inequitableness or bad faith relative to the matter in which he seeks relief, however improper may have been the behavior of defendant.
That doctrine is rooted in the historical concept of court of equity as a vehicle for affirmatively enforcing the requirements of conscience and good faith. This presupposes a refusal on its part to be 'the abettor of iniquity.' n60

n59 Washington Capitols Basketball Club, Inc. v. Barry, 304 F.Supp. 1193, 1199 (D.C.Cal. 1969) (citing Precision Instrument Mfg. Co. v. Automotive Maintenance Machinery Co., 324 U.S. 806, 814, 65 S.Ct. 993, 997, 89 L.Ed. 1381 (1944)).
n60 New York Football Giants, 291 F.2d 471, 473-474 (C.A.5 1961) (citing Loughran v. Loughran, 292 U.S. 216, 229 (54 S.Ct. 684, 689, 78 L.Ed. 1219 (1934) & Bein v. Heath, 6 How. 228, 247, 12 L.Ed. 416 (1848)) (other citations omitted).
To the extent that RISA's hands are "dirty," the Plaintiffs' are as well. [*28]
First, all Plaintiffs agreed to the conditions and restrictions. The restrictions at issue were not imposed by RISA, they are conditions of title that have existed since 1953. Every Plaintiff was aware of the restrictions when they purchased in Ryderwood; every Plaintiff agreed to abide by the age restrictions; every Plaintiff endorsed those restrictions by joining RISA; most of the Plaintiffs moved to Ryderwood because of those age restrictions; and many of the Plaintiffs actively enforced those conditions for many years.
Second, RISA's actions - if inequitable - must be placed in context. RISA did not enforce age restrictions for the purpose of discriminating, it enforced the age restrictions to benefit the expectations of each and every resident of Ryderwood. Plaintiffs do not argue RISA should not have enforced the age restrictions, they argue it should have complied with HOPA. Not one complained about the age restrictions before bringing this suit.
Finally, third, each resident owed their fellow residents a duty to benefit one another, not themselves. This is

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particularly so for the former officers of RISA: Charles Weaver, Joyce Adams and Joyce Fisher. All [*29] served as Board members during the times at issue; all stated they would help RISA comply with the laws; and all were directly involved in orchestrating RISA's effort to comply with HOPA.
Plaintiff Charles Weaver's actions are particularly noteworthy. What Mr. Weaver cites as "harm" are the direct results of his actions (or inactions). Mr. Weaver told RISA how to conduct the survey. Mr. Weaver told RISA it was compliant with HOPA. Mr. Weaver told the Board to erect the signs. At minimum, it is equitable to require him to live with his recommendations and decisions until final judgment.
More pertinently, if there is confusion about the Plaintiffs' legal rights, the source is Mr. Weaver. Mr. Weaver served as legal liaison until he resigned from RISA on September 22, 2007. n61 But while he was representing the interests of RISA, the facts show he was plotting to exploit information learned in that position to file suit:
n61 Dkt. 24 P 15, Exh. F.
On June 4th, 2007 he wrote a private [*30] email stating that the Board lacked the "professional skills" necessary to "steer this ship through this legal morass." n62 But "[b]ecause I did my homework, I know where most of the dead bodies are buried in Ryderwood and as such Susan and I and our little investment are protected." n63 He also wrote:
It's [the] Board that [] needs to worry and do its homework, or it is the Board and more important the members who will lose. n64

n62 Ross Dec. Exh. H. n63 Id. n64 Id.
On June 5th, 2007 he wrote "RISA really has it all hung out over a limb and as fast as they can the RISA board is cutting off the limb." n65 The same day he wrote that:
Today we are a 55+ community . . . HOPA is an exception to [the] Fair Housing Act. Simply put HOPA allows certain communities to discriminate on age and family status providing [it] meets certain criteria which we certainly do. n66

[*31]

n65 Ross Dec., Exh. E.

n66 Id. On July 17, 2007 he advised the Board it was compliant with HOPA. n67
n67 Dkt. 24, Exh. F, p. 2.

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On July 29, 2007, he informed the Board that RISA only needed to retain HOPA surveys for five years. n68 n68 Ross Dec., Exh. C.

On August 28th, 2007, he sent an email titled "CYA Documents" to a fellow resident. n69 In that email he states: "If things get worse here in Ryderwood, these documents should bring quick relief and quick sale of your house. The first is HUD informing RISA that they are required to be HOPA compliant [in 1993]. The second is a letter sent by RISA to their attorney wit[h] a list of questions followed by his reply on the bylaw." n70

[*32]

n69 Id., Exh. I.

n70 Id.

On August 29th, 2007, he sent the same items to three other residents - Jan Bigley, Glenn Robertson and Plaintiff Joyce Fisher - stating that "[s]hould you ever wish or need to leave Ryderwood, these documents in the hands of even a third year law student would ensure that if you left you would not suffer a financial loss." n71 The title of this email was "Get out of Jail Free Card."
n71 Id, Exh. G.

On August 29th, 2007, he followed up that email with a personal email to Glenn Robertson. Mr. Robertson wrote that he wanted "those SOBs" - RISA and its Board - "to end their miserable, wretched lives in solitary confinement on a diet of bread and water, or better yet, skinned alive, rolled in salt and impaled on a burning stake." n72 Mr. Weaver responds that the documents "won't achieve solitary confinement or bread and water but they will pay in ways no one could imagine." n73

[*33]

n72 Id.

n73 Id.
Throughout that time, he continued to claim the mantle of legal liaison, representing that he had RISA's best interests at heart. Throughout August and September, he continued to communicate with RISA's attorney - Frank Randolph - providing input on legal questions and relaying advice to the Board. n74 Those emails are privileged and have not been submitted to the Court. That said, counsel has reviewed those emails and can attest that, if produced, the topics of discussion include a conversation on September 5th, 2007 in which Mr. Weaver and Mr. Randolph discussed and debated the merits of proposed amendments to RISA's bylaws. On September 6th, 2007, Mr. Weaver advised Mr. Randolph that he believes RISA should move for recognition as a metropolitan corporation. Again on the same day he

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wrote Randolph that Ryderwood could be incorporated as a "HOPA community."
n74 Ross Dec. P 6.
On September 14, 2007, [*34] Mr. Weaver cut contact with Mr. Randolph. After a long string of emails discussing legal matters - including soliciting Mr. Randolph's opinion on RISA's need to comply with HOPA - he abruptly informed Mr. Randolph that further communications could be a "conflict of interest as Susan and I are weighing our options as we both want out of Ryderwood and both hold RISA responsible." n75
n75 Id., Exh. J (Partially redacted to omit all statements made by counsel).
On September 26th, 2007, Mr. Weaver resigned from RISA and notified the Board that he intended to sue, alleging that the bylaws were ultra vires and that it failed to comply with HOPA. n76
n76 Id., Exh. M (September 22, 2007 Resignation Email).
If Plaintiffs are in a conundrum, RISA is as well. As a volunteer community staffed solely by residents, RISA relies upon its [*35] residents to act in its best interests, not to use positions of confidence as a means to build a case against it. The evidence shows that Mr. Weaver willfully misled RISA for his own gain. The evidence also shows that his motivation is money, not families. And it shows why his declaration - the sole source of support for Plaintiffs' claim that all 35 want to move immediately - should not be trusted.
"He who seeks equity must do equity." n77 The Plaintiffs have not. They willingly agreed to the age restrictions yet now disclaim them as "discrimination." And, for three, they failed to take the actions for which they now hold RISA blameworthy. Justice is not served by granting the relief requested.
n77 HC Dalmoreproduct v. Kogan, 1998 WL 231108, 2 (9th Cir. 1998).
D. The Relief Is Not Feasible. RISA also asks that the injunction be modified to provide it with sufficient time to carry out the actions demanded. First, Plaintiffs' propose three days for RISA to mail letters to all real [*36] estate agents, title companies, and escrow officers in a 50 mile vicinity. Plaintiffs also propose that notice by mailed by all residents within three days. RISA respectfully submits that it cannot complete either of these tasks within three days. RISA is a community of senior volunteers. It has no budget to hire employees to assist with this effort. At minimum, RISA asks for a reasonable time of 30 days to complete this task. n78
n78 See DeBriae Dec, PP 7-8.
Second, Plaintiffs propose that RISA amend its bylaws within fourteen days. This is not feasible either. RISA does not have the authority to sua sponte amend its bylaws. RISA must provide notice to all residents and obtain a quorum before the bylaws can be amended. Even so, amendment is by vote and RISA cannot ensure that sufficient residents will

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attend and approve this vote. RISA seeks guidance on this issue but believes fourteen days is not sufficient. n79
n79 Id.
[*37]
E. Security Is Mandatory
Finally, if granted today, FRCP 65(c) mandates that the moving party secure any losses by bond. See Fed. R. Civ. Proc. 65(c). While the Court has discretion to determine the amount of the bond, the Rule provides that the bond should be sufficient to ensure that "the costs and damages sustained by any party found to have been wrongfully enjoined or restrained" are paid for. Id.
Here, the potential loss to the community and the 240 residents whose purchase expectations may be impinged are massive. If this relief is granted today, then the Order is subsequently reversed on appeal, the impact to Ryderwood will be incalculable. Theoretically, the homogenous character of the community as 55 and older will be lost, which may preclude reliance on HOPA even if the Court holds that RISA complied with the law. At minimum, RISA suggests that the starting point to evaluate the scope of that loss should be $ 5,000 per home. Consequently, RISA asks this Court to require Plaintiffs to post a bond in the amount of $ 1.2 million.
VI. CONCLUSION
As the Court in Dorfmann v. Boozer held: "[t]he great equitable power to enjoin a party pendente lite [*38] should not be exercised unless it is manifest that the normal legal avenues are inadequate, that there is a compelling need to give the plaintiff the relief he seeks, and that the injunction will not wreak greater harm on the party enjoined." n80 Plaintiffs have not met this standard. The injunction should be denied.
n80 Dorfmann, 414 F.2d at 1173-1174.

DATED this 6th day of July, 2010.
BETTS, PATTERSON & MINES, P.S.
By /s/ Steven Goldstein Steven Goldstein, WSBA #11042 Richard D. Ross, WSBA #34502 Attorneys for Defendant
CERTIFICATE OF SERVICE
I hereby certify that on the 6th day of July, 2010, I electronically filed the document(s) described as Defendant's Opposition to Plaintiff's Motion for Preliminary Injunction with the Clerk of the U.S. District Court for the Western District of Washington using the CM/ECF system, which will send notification of such filing to The Honorable Benjamin H. Settle and all counsel of record:
Counsel for Plaintiff: [*39] Joseph E. Lynam, WSBA# 12728 Lane Powell PC

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1420 Fifth Avenue, Suite 4100 Seattle, WA 98101-2338
By /s/ Shane Kangas Shane Kangas Legal Assistant Betts, Patterson & Mines, P.S. 701 Pike Street, Suite 1400 Seattle, WA 98101-3927 Phone: (206) 292-9988 Fax: (206) 343-7053 Email: skangas@bpmlaw.com
DECLARATION OF RICHARD D. ROSS IN SUPPORT OF OPPOSITION TO MOTION FOR PRELIMINARY INJUNCTION
I, Richard D. Ross, am competent to testify to the matters set forth herein and make this declaration of my own personal knowledge and belief.
1. I am counsel for the Defendant in this matter, the Ryderwood Improvement and Service Association. I am familiar with the facts set forth herein and the documents appended to this Declaration.
2. I have reviewed all discovery produced by Plaintiffs in this matter and determined that each residence contained either the original Senior Estates deed restrictions or the deed restrictions are referenced as conditions of title in the purchase and sale documents. Attached hereto at Exhibit A are true and correct copies of deeds provided by the Balvages showing the original Senior Estates deed restrictions at PLA274, lines 8-9. [*40]
3. Documents provided by the Plaintiffs indicate that many moved to Ryderwood because it was a 55 and older community. Attached hereto at Exhibit B are various complaint letters and resignation letters provided by Plaintiffs to RISA describing why each decided to resign. The documents are organized by Bates number and referenced by the same in the Opposition Brief.
4. Attached hereto at Exhibit C is a true and correct copy of an email sent by Plaintiff Charles Weaver to RISA Board member Claudia Drake on July 29, 2007.
5. Attached hereto at Exhibit D is a true and correct copy of an email sent by Plaintiff Charles Weaver to RISA Board member Sally-Gene DeBriae on or about April 5, 2006 discussing his demand that Board Member Lester Mulkey resign.
6. Email correspondence provided by Plaintiffs includes privileged materials sent by RISA counsel Frank Randolph to Charles Weaver as RISA's legal liaison. The correspondence has not been provided but RISA can provide these materials at the Court's request. Counsel has reviewed those emails and can attest that they show Mr. Randolph was providing RISA legal advice through Mr. Weaver up until September, 2007, when Mr. Weaver informed Mr. [*41] Randolph that he was considering filing suit against RISA. See Exhibit J, infra. The topics of discussion include a conversation on September 5th, 2010 in which Mr. Weaver and Mr. Randolph discussed and debated the merits of proposed amendments to RISA's bylaws. On September 6th, Mr. Weaver advised Mr. Randolph that he believes RISA should move for recognition as a metropolitan corporation. Again on the same day he wrote Randolph that Ryderwood could be incorporated as a "HOPA community."
7. Attached hereto at Exhibit E is a true and correct copy of an email sent by Plaintiff Charles Weaver to Ryderwood resident Bob White on December 31, 2007 describing Mr. Weaver's past history of teaching HOPA compliant to retirement communities.

2009 U.S. Dist. Ct. Motions 607230; 2010 U.S. Dist. Ct. Motions LEXIS 29393, *41

Page 17

8. Attached hereto at Exhibit F is a true and correct copy of an email sent by Plaintiff Charles Weaver to Ryderwood resident Joe Poor on June 5, 2007 wherein he states that Ryderwood meets all criteria for HOPA.
9. Attached hereto at Exhibit G is a true and correct copy of an email sent by Plaintiff Charles Weaver to Glenn and Marie Robertson, Janice Bigley, and Lloyd and Joyce Fisher dated August 29, 2007 entitled "Get Out Of Jail [*42] Free Card." Page 2 shows the response sent by Mr. Robertson.
10. Attached hereto at Exhibit H is a true and correct copy of an email sent by Plaintiff Charles Weaver to Ryderwood resident Joe Poor dated June 4, 2007.
11. Attached hereto at Exhibit I is a true and correct copy of an email sent by Plaintiff Charles Weaver to Ryderwood residents Ed and Doris Ritzman dated August 28, 2007
12. Attached hereto at Exhibit J is a partially redacted copy of a true and correct email sent by Plaintiff Charles Weaver to RISA attorney Frank Randolph dated September 14, 2007.
13. On June 25th, 2010, I sent a letter to counsel for the Plaintiffs, requesting promised supplementation to discovery responses and additional information regarding the new Plaintiffs added on June 4, 2010. Specifically with respect to this factual aspect of RISA's Opposition, counsel provided two emails titled "prior sales efforts."
14. The first is an email from Charles Weaver dated February 24, 2008 to a local real estate agent, Maruta Heigel. In that email he accuses Ms. Heigel of "perpetuating the lie" that Ryderwood is a 55 and older community. He further informs her that her license and her broker's license are [*43] "on the line." A true and correct copy of that email is attached hereto at Exhibit K.
15. The second are documents provided by Plaintiffs Robert and Doris Pistone, attesting that each listed their home for sale in 2009 but received no offers. A true and correct copy of those materials is attached at Exhibit L.
16. Attached hereto at Exhibit M is a true and correct copy of Charles Weaver's resignation email sent to the RISA Board on September 26, 2007.
17. Attached hereto at Exhibit N is a document provided by Plaintiffs on July 6, 2010, showing that HOPA Age Verification was an "action item" assigned to Plaintiff Joyce Fisher. The document also shows that Plaintiff Charles Weaver was a Board member at the time. Mr. Weaver has previously attested to this Court that he was never an officer of RISA. SeeDkt 15, p. 2.
I declare the foregoing to be true and accurate to the best of may knowledge under penalty of perjury.
/s/ [Signature] Richard D. Ross
Executed this 6th day of July, 2010, at Seattle, Washington.
CERTIFICATE OF SERVICE
I hereby certify that on the 6th day of July, 2010, I electronically filed the document(s) described as Declaration of [*44] Richard Ross in Support of Opposition to Motion for Preliminary Injunction with the Clerk of the U.S. District Court for the Western District of Washington using the CM/ECF system, which will send notification of such filing to The Honorable Benjamin H. Settle and all counsel of record:
Counsel for Plaintiff:

2009 U.S. Dist. Ct. Motions 607230; 2010 U.S. Dist. Ct. Motions LEXIS 29393, *44

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Joseph E. Lynam, WSBA# 12728 Lane Powell PC 1420 Fifth Avenue, Suite 4100 Seattle, WA 98101-2338
By /s/ Shane Kansas Shane Kangas Legal Assistant Berts, Patterson & Mines, P.S. 701 Pike Street, Suite 1400 Seattle, WA 98101-3927 Phone: (206) 292-9988 Fax: (206) 343-7053 Email: skangas@bpmlaw.com
[SEE EXHIBIT A IN ORIGINAL]
[SEE EXHIBIT B IN ORIGINAL]
[SEE EXHIBIT C IN ORIGINAL]
[SEE EXHIBIT D IN ORIGINAL]
[SEE EXHIBIT E IN ORIGINAL]
[SEE EXHIBIT F IN ORIGINAL]
[SEE EXHIBIT G IN ORIGINAL]
[SEE EXHIBIT H IN ORIGINAL]
[SEE EXHIBIT I IN ORIGINAL]
[SEE EXHIBIT J IN ORIGINAL]
[SEE EXHIBIT K IN ORIGINAL]
[SEE EXHIBIT L IN ORIGINAL]
[SEE EXHIBIT M IN ORIGINAL]
[SEE EXHIBIT N IN ORIGINAL]
[SEE DECLARATION OF SELLY-GENE DEBRIAE IN SUPPORT OF OPPOSITION TO MOTION FOR PRELIMINRY INJUNCTION IN ORIGINAL] [*45]

 
 Page 1
View U.S. District Court Opinion
View Original Source Image of This Document
RAYMOND T. BALVAGE and DEBORAH A. BALVAGE, husband and wife; CHARLES E. WEAVER and SUSAN M. WEAVER, husband and wife; JOYCE MARIE
ADAMS; LUVERN HARLAND ALLEN; EDGAR AMES; JAMES ALVIN BAKER and DARLA JEAN BAKER, husband and wife; RALPH ALVIN BARFELL, JR.;
SHARON MARIE BANTA; RAY BODINE and JANIE KAY BODINE, husband and wife; RICHARD ANTHONY BRAGA, JR. and MARGARET LOUISE BRAGA,
husband and wife; CHARLES THOMAS CALDWELL and SANDI KAY CALDWELL, husband and wife; LAREN WILLBUR COLEMAN and PAMELA DENISE COLEMAN, husband and wife; ALVIN DEE COLPITTS and CORABELLE COLPITTS, husband and wife; BETTY GENE DONOGHUE; ELIZABETH ELAINE DUPREE; JOYCE ELAIN
FISCHER; JEANNETTE H. HEADEN; GLENN RICHARD HUESTIS and CAROL NADINE HUESTIS, husband and wife; BARBARA JEAN JOY; MIRIAM MARGARET KENNEDY-ALLEN; GERALD BLAIR KOLB and ETHEL MAY KOLB, husband and
wife; ALFRED WESLEY LEACH and GLORIA EILEEN LEACH, husband and wife; RAYMOND ERNEST MORRIS and CAROLYN L. MORRIS, husband and wife;
ARNOLD NADEAU; KAREN CAMPBELL; BOB PISTONE and DORIS PISTONE, husband and wife; VERN POWELL and SHARON POWELL, husband and wife;
EARLEEN M. RUTHERFORD; CHARLES JOHN SANTINEAU; BARBARA LOUISE PEPPER; LUCAS JOHN SHIMMIN; DON SMITH and DIANE SMITH, husband and wife; DONALD NEIL STROUD and SHARON LEE STROUD, husband and wife; WALTER GORDON WEST and JANET MARIE WEST, husband and wife; BEVERLY WHITE; BOB WHITE and DIANE WHITE, husband and wife; Plaintiffs, v. RYDERWOOD IMPROVEMENT AND SERVICE ASSOCIATION, INC., a Washington non-profit corporation, Defendant.
CASE NO. C09-5409BHS
UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON, TACOMA DIVISION
2009 U.S. Dist. Ct. Motions 607230; 2010 U.S. Dist. Ct. Motions LEXIS 29395
July 9, 2010
Motion for Injunction
VIEW OTHER AVAILABLE CONTENT RELATED TO THIS DOCUMENT: U.S. District Court: Motion(s); Pleading(s)

2009 U.S. Dist. Ct. Motions 607230; 2010 U.S. Dist. Ct. Motions LEXIS 29395, *1

Page 2

COUNSEL: [*1] LANE POWELL PC, Seattle, WA, Joseph E. Lynam, WSBA No. 12728, Abraham K. Lorber, WSBA No. 40668, Attorneys for Plaintiffs.
JUDGES: Honorable Benjamin H. Settle
TITLE: Plaintiffs' Reply In Support Of Plaintiffs' Motion For Preliminary Injunction
TEXT: I. INTRODUCTION
RISA has lost the HOPA issue. The Court has ruled RISA is violating the FHA and that HOPA does not apply. n1 However, RISA ignores this clear ruling and appears to be in denial that the issue has been resolved. RISA has the benefit of insurance company funding of its attorneys fees and costs. n2 Plaintiffs are a group of senior citizens facing serious and life threatening illnesses. n3 Plaintiffs' ability to fund this lawsuit is limited by their pensions, social security checks, or other fixed incomes. n4 RISA's intent appears to be to take every action possible to delay and stall this litigation until it is too late for Plaintiffs to get their affairs in order or ever enjoy the relief that naturally flows from the Court's rulings. n5

n1 Dkt. 42, pp. 14-15. n2 See Declaration of Joseph E. Lynam in Support of Plaintiffs' Motion for Preliminary Injunction filed herewith, at P 2. [*2]
n3 Dkt. 62, P 3. n4 Id., at P 4. n5 See Dkts. 50, 55 (attempting to delay enforcement of the Court's Order on PMSJs and continue the trial date).
RISA explains that it owns no homes in Ryderwood and is not a profit seeking entity. n6 RISA makes no factual showing that there will be sales to families with children or that it will suffer financial loss if the requested injunction is imposed. n7 Nonetheless, RISA boldly asserts that it, not Plaintiffs, is threatened with irreparable harm. n8 This argument is based entirely on speculation. In fact, RISA faces no threat of irreparable harm. There is no inherent right in this country to discriminate against families with children. A limited exception to the prohibition on such discrimination exists only if there has been strict compliance with the requirements of HOPA. n9 The Court has ruled that such compliance has not occurred. n10 The status quo in Ryderwood, which RISA seeks to maintain, is nothing less than illegal discrimination. This status quo is not worthy of the Court's protection.

n6 Dkt. 57, p. 3. [*3]
n7 See generally Id. n8 Id., at 12-14. n9 See Massaro v. Mainlands Section 1 & 2 Civic Ass'n, Inc., 3 F.3d 1472, 1475 (11th Cir. 1993) (exceptions to the FHA are narrowly construed). n10 Dkt. 42, p. 14-15.

2009 U.S. Dist. Ct. Motions 607230; 2010 U.S. Dist. Ct. Motions LEXIS 29395, *3

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The equities of this situation resoundingly favor Plaintiffs. The starting place of any equitable analysis must be the paramount interest of stopping any continuing violations of the FHA. The Court has ruled such violations are occurring to Plaintiffs' detriment. n11 Indeed, these violations are part of a 17 year history of RISA's continuous willful disregard of the FHA. n12 These violations must be stopped.

n11 Dkt. 42, pp. 8-10 (RISA's actions cause injury to Plaintiffs sufficient to confer standing). n12 Dkt. 42, p. 3-4 (RISA learned of the FHA and HOPA requirements in December, 1992; RISA began its first age-verification survey in 2005; RISA still enforces its age-restrictions in 2010).
[*4]
RISA's continuing illegal violation of the FHA despite the Court's ruling and its history of knowing and willful disregard of HUD's instructions regarding HOPA compliance demonstrates that RISA is the party with unclean hands. RISA's attempts to rely on personal attacks, irrelevant and inconsistent background history, and total denial of the Court's prior rulings should not be rewarded. With their Motion for Preliminary Injunction, Plaintiffs simply ask that RISA's unlawful discrimination be stopped until further order of the Court. This request is equitable, realistic, and, moreover, it is the only logical follow up to the Court's Order on PMSJs.
II. REPLY
A. Plaintiffs Face Irreparable Harm Unless the Injunction is Granted.
The Court has ruled that the conundrum faced by Plaintiffs with regard to their inability to sell their homes constitutes an ongoing injury which confers upon them sufficient standing to seek relief. n13 Each of the Plaintiffs continues to suffer this same injury. n14 Every day that goes by where the signs remain up, the policies remain in place, and real estate agents remain unadvised is another day that Plaintiffs cannot list their [*5] homes for sale. Unless an injunction is granted, Plaintiffs will never get these potential sale days back. The injuries suffered by Plaintiffs' truly will be compounded if they miss the prime 2010 summer selling season in Ryderwood. n15 Plaintiffs are a group of senior citizens facing severe, life-threatening illnesses. n16 If Plaintiffs are forced to wait through trial and appeals funded by RISA's insurance company money, then it will be too late for them to obtain relief. Thus, the harm Plaintiffs will suffer is irreparable and merits the entry of the proposed injunction.

n13 Dkt. 42, pp. 8-10. n14 Exhs. A-II to Dkt. 32. n15 See Dkt. 49, P 7. n16 Dkt. 62, P 3.

B. RISA Will Suffer No Harm if the Injunction is Granted.
RISA states that it "does not make any money by enforcing the age restrictions, it owns no homes in Ryderwood and is not a profit seeking entity." n17 This statement is difficult to square with RISA's contention that it will be harmed if the injunction [*6] is granted. n18 Although Plaintiffs ultimately seek declaratory relief stating that RISA's bylaws are unenforceable, they do not seek such relief in this Motion. n19 If the injunction is granted, RISA will still be able to collect dues, hold meetings, and manage community spaces. If RISA has no financial or proprietary stake in Ryderwood, it cannot be harmed by the removal of restrictions governing the composition of Ryderwood residents.

2009 U.S. Dist. Ct. Motions 607230; 2010 U.S. Dist. Ct. Motions LEXIS 29395, *6

Page 4

n17 Dkt. 57, p. 3. n18 See Id., at 12-14. n19 Compare Dkt. 41, Dkt. 48.
Moreover, RISA provides no actual evidence that families with children have made efforts to buy houses in Ryderwood or that any such sales are imminent. n20 Mere speculation regarding such "harm" should be disregarded.
n20 See generally Dkt. 57.
C. The Public Interest in Granting the Injunction [*7] Outweighs the Private Interests of Ryderwood Homeowners.
Plaintiffs have submitted 37 declarations (which includes all Plaintiffs or their marital communities) stating that they want RISA's age restrictions removed so that they can sell their properties without fear of incurring liability for age-discrimination. n21 RISA has submitted no evidence that any Ryderwood resident actually wants the age-restrictions to remain in place. n22 Nevertheless, RISA states that the public has an interest in seeing the restrictions remaining in force. n23 This argument is of no merit. It cannot be disputed that the public has a greater interest in free and open housing than private homeowners have in enforcing discriminatory covenants and bylaws. n24 Although senior citizens may have an interest in maintaining retirement communities, the privilege of protecting that interest carries with it the responsibility of complying with the law. RISA does not dispute that for 13 years (1992-2005), its board of "homeowner volunteers" willfully ignored federal laws concerning housing discrimination. By virtue of this willful and knowing noncompliance with HOPA, RISA has forfeited any claim it has to maintain [*8] a discriminatory age-restrictions.
n21 Exhs. A-II to Dkt. 32. n22 See generally Dkt. 57. n23 Id., at 14-15. n24 See 42 U.S.C. § 3601.
Also, RISA makes no evidentiary showing that the "55 and older" character of Ryderwood would actually be threatened if the restrictions are removed. n25 Plaintiffs have never indicated that they specifically want to sell to families with children. Instead, Plaintiffs want illegal restrictions removed so that they can sell to the general public without illegal obstacles and without fear of liability for housing discrimination. n26 Given that Ryderwood is largely a community of retirees anyway, it is questionable whether younger people will move in if the age-restrictions are removed. What is essential, and what is consistent with the public policy of the United States, is that everyone be given the opportunity to live in Ryderwood regardless of familial status.
n25 See generally Dkt. 57. [*9]

2009 U.S. Dist. Ct. Motions 607230; 2010 U.S. Dist. Ct. Motions LEXIS 29395, *9

Page 5

n26 Exhs. A-II to Dkt. 32.
D. RISA's Personal Attacks
A great deal of RISA's Opposition is devoted to personal attacks against three of the Plaintiffs and their motives for bringing this lawsuit. n27 Irrespective of the numerous inaccuracies and inconsistencies of these personal attacks, they have nothing to do with the issues before the Court. There are 54 plaintiffs to this suit and RISA's response is to make misleading personal attacks against 3 of them. n28 This misdirected effort is consistent with RISA's efforts to delay this case and sidetrack the Court with irrelevant and disputed facts. Plaintiffs have proven, as a matter of law, that RISA does not qualify for HOPA and that RISA's age-restrictions are illegal. n29 RISA's personal attacks provide no reason that the Court should not grant injunctive relief consistent with its prior ruling. n30
n27 Dkt. 57, pp. 4-7, 16-21. n28 Id. n29 Dkt. 42, pp. 14-15. n30 Certain Plaintiffs were members of the RISA board in 2006 and 2007. The Court ruled, however, that it was RISA's failure to properly convert to HOPA in 2000 that renders it non-compliant today. Dkt. 42, p. 11-15 (RISA discriminated on the basis of familial status after the expiration of the HOPA transition period on May 3, 2000). Thus, the actions of Plaintiffs as board members could not have had any impact on RISA's eligibility for HOPA.
[*10]
E. The Terms of the Injunction are Reasonable and RISA Can Comply Without Difficulty.
RISA complains that the timelines suggested for Plaintiffs' preliminary injunction are unrealistically short. n31 This simply is not the case. With regard to mailing notices to residents, RISA has stated that it has all residents' addresses on file. n32 RISA has a high speed printer and copying system capable of publishing documents for all of its members in under an hour. n33 This being the case, it should also not be difficult to generate letters to the 18 real estate, escrow, and title companies as well. With regard to the bylaws, RISA claims that it has no authority to amend its bylaws sua sponte. n34 This is inaccurate. RCW 64.38.028 allows discriminatory provisions to be removed from bylaws upon the vote of a simple majority of a homeowner's association's board of directors. 14 days is ample time for RISA to convene a board meeting and vote to amend the bylaws. This said, the exact length of these deadlines is not of critical importance, and the parties look to the Court's discretion to set reasonable deadlines.
n31 Dkt. 57, pp. 21-22. [*11]
n32 Dkt. 24, PP 18-19. n33 Second Declaration of Charles E. Weaver in Support of Plaintiffs' Motion for Preliminary Injunction, P 2. n34 Dkt. 57, p. 22.

2009 U.S. Dist. Ct. Motions 607230; 2010 U.S. Dist. Ct. Motions LEXIS 29395, *11

Page 6

RISA claims that if the injunction is granted, Plaintiffs will still need to disclose the present dispute to potential home buyers. This may be true. But what would this disclosure be?
This town used to be called a retirement community but the United States District Court ruled that it was not a retirement community because the board of directors was illegally discriminating. The board of directors appealed. Right now there are no restrictions on families with children.
Any awkwardness caused by this disclosure cannot justify the maintenance of illegal restrictions on families with children.
RISA may not want to comply with the preliminary injunction requested by Plaintiffs. This, however, does not mean that compliance is not feasible.
F. No Security is Necessary for Entry of Injunction
As noted above, RISA has no financial or proprietary interest in the maintenance of the age-restrictions. [*12] n35 Accordingly, no security is necessary prior to entry of the injunction. RISA's contention that the public as a whole may be damaged by removal of the restrictions is based on pure speculation. Moreover, the presumption must be in favor of ending illegal discrimination. RISA's request for $ 5,000 per household (or $ 1.2 million total) is not only prohibitive, it is without justification. n36 RISA provides no evidentiary support for the $ 5,000 number nor does it explain how it is reasonably calculated to redress injuries that RISA might suffer if entry of the injunction turns out to have been incorrect. n37 Plaintiffs suspect that RISA simply drew this number out of whole cloth in another effort to take advantage of Plaintiffs' limited resources. Because RISA has no financial interest in the entry of the injunction, and because the injunction is necessary to stop ongoing illegal discrimination, Plaintiffs respectfully submit that the injunction should be issued without security or bond.

n35 Dkt. 57, p. 3. n36 Dkt. 57, pp. 22-23. n37 See generally Dkt. 57.
[*13]
III. CONCLUSION
Any arguments raised in RISA's Opposition cannot overcome the fact that the Court has ruled RISA's familial status discrimination is illegal and causing ongoing injuries to plaintiffs who have limited time and resources to get their affairs in order. Accordingly, the preliminary injunction requested by Plaintiffs should be entered in order to stop this illegal conduct.
[Procedural note: In the earlier declaration of Charles E. Weaver in Support of Plaintiffs' Motion for Preliminary Injunction (Dkt. 49), a typing error resulted in Plaintiffs inadvertently leaving out one of the real estate agents which Ryderwood and should be included as one of the persons to receive notice. Therefore, a Second Weaver Declaration is filed herewith pointing out this fact, and an Amended Proposed Order is filed herewith with the sole change (as compared to the original Proposed Order) that one more addressee has been added to Exhibit B.]
DATED: July 9, 2010
LANE POWELL PC

2009 U.S. Dist. Ct. Motions 607230; 2010 U.S. Dist. Ct. Motions LEXIS 29395, *13

Page 7

By /s/ Joseph E. Lynam Joseph E. Lynam, WSBA No. 12728 Abraham K. Lorber, WSBA No. 40668 Attorneys for Plaintiffs Lane Powell PC 1420 Fifth Avenue, Ste. 4100 Seattle, WA 98101-2338 T: [*14] 206-223-7000 F: 206-223-7107 Email: lynamj@lanepowell.com Email: lorbera@lanepowell.com
CERTIFICATE OF SERVICE
The undersigned certifies under penalty of perjury under the laws of the State of Washington, that on July 9, 2010, the document attached hereto was presented to the Clerk of the Court for filing and uploading to the CM/ECF system. In accordance with their ECF registration agreement and the Court's rules, the Clerk of the Court will send e-mail notification of such filing to the following persons:
Steven Goldstein Betts, Patterson & Mines, P.S. One Convention Place, Suite 1400 701 Pike St. Seattle, WA 98101 Email: sgoldstein@bpmlaw.com
DATED July 9, 2010 at Seattle, Washington.
/s/ Joseph E. Lynam Joseph E. Lynam, WSBA No. 12728
LANE POWELL PC 1420 Fifth Avenue, Suite 4100 Seattle, WA 98101-2338 Tel: 206.223.7000 Fax: 206.223.7107 Email: lynamj@lanepowell.com
Attorney(s) for Plaintiffs
DECLARATION OF JOSEPH E. LYNAM IN SUPPORT OF PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION
I, Joseph E. Lynam, hereby declare and state:
1. I am an attorney representing Plaintiffs in this lawsuit. I am over the age of 18, [*15] I am competent to testify herein, and I state the following facts based on my personal knowledge.
2. In Defendant's Rule 26(a)(1) Initial Disclosure dated October 30, 2009, RISA disclosed details regarding its applicable insurance coverage.

2009 U.S. Dist. Ct. Motions 607230; 2010 U.S. Dist. Ct. Motions LEXIS 29395, *15

Page 8

I swear under penalty of perjury under the laws of the United States of America that the foregoing is true and correct to the best of my knowledge.
SIGNED this 9th day of July, 2010 at Seattle, Washington.
/s/ Joseph E. Lynam Joseph E. Lynam, WSBA No. 12728 LANE POWELL PC 1420 Fifth Avenue, Suite 4100 Seattle, WA 98101-2338 Tel: 206.223.7000 Fax: 206.223.7107 Email: lynamj@lanepowell.com
Attorneys for Plaintiffs
CERTIFICATE OF SERVICE
The undersigned certifies under penalty of perjury under the laws of the State of Washington, that on July 9, 2010, the document attached hereto was presented to the Clerk of the Court for filing and uploading to the CM/ECF system. In accordance with their ECF registration agreement and the Court's rules, the Clerk of the Court will send e-mail notification of such filing to the following persons:
Steven Goldstein Betts, Patterson & Mines, P.S. One Convention Place, Suite 1400 701 [*16] Pike St. Seattle, WA 98101 Email: sgoldstein@bpmlaw.com
DATED July 9, 2010 at Seattle, Washington.
/s/ Joseph E. Lynam Joseph E. Lynam, WSBA No. 12728
LANE POWELL PC 1420 Fifth Avenue, Suite 4100 Seattle, WA 98101-2338 Tel: 206.223.7000 Fax: 206.223.7107 Email: lynamj@lanepowell.com
Attorney(s) for Plaintiffs
[SEE SECOND DECLARATION OF CHARLES E. WEAVER IN SUPPORT OF PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION IN ORIGINAL]
[SEE [PROPOSED] AMENDED ORDER IMPOSING PRELIMINARY INJUNCTION IN ORIGINAL]

 
 Case 3:09-cv-05409-BHS Document 1 Filed 07/08/09 Page 1 of 18

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9 RAYMOND T. BALVAGE and DEBORAH
10 A. BALVAGE, husband and wife, and CHARLES E. WEAVER and SUSAN M.
11 WEAVER, husband and wife, on their own behalf and on behalf of a class of similarly
12 situated individuals,

13

v.

14 RYDERWOOD IMPROVEMENT AND SERVICE ASSOCIATION, INC., a

c NO; 09-5-408
COMPLAINT-CLASS ACTION FOR VIOLATION OF FEDERAL FAIR HOUSING ACT AND OTHER CLAIMS

15 Washington non-profit corporation,

16

Defendant.

17

Plaintiffs Raymond T. Balvage and Deborah A. Balvage, husband and wife, and

18 Charles E. and Susan M. Weaver, husband and wife, individually and on behalf of their marital

19 communities ("Plaintiffs''), and on behalf of a class of similarly situated individuals (the

20 "Class''), allege and state as follows:

21

I. PARTIES

22

1. Plaintiffs Raymond T. Balvage and Deborah A. Balvage are husband and wife

23 and own property in Ryderwood specifically described as "Lot 9, Block 17, Ryderwood No. 1,

24 according to the plat thereof, recorded in Volume 8 of plats, page 54, records of Cowlitz

25 County, Washington. Together with that portion of vacated Third Street which attaches by

26 Order of Vacation under Resolution No. 98-028 under AF #3012253." All actions alleged

27

COMPLAINT-CLASS ACTION FOR VIOLATION OF
u K IGINAL FEDERAL FAIR HOUSING ACT AND OAI~ CL.AIMS- 1
124215.000!11728190.2

LANE POWELL PC 1420 FWfH AVENUE, SUITE4100 SEATTLE, WASHINGfON 98101-2338 206.223.7000 FAX 206.223.7107

------------------------------

Case 3:09-cv-05409-BHS Document 1 Filed 07/08/09 Page 2 of 18

1 herein were taken by the Balvages on their behalf individually and on behalf of their marital

2 connnunity.

3

2. Plaintiffs Charles E. Weaver and Susan M. Weaver are husband and wife and

4 own property in Ryderwood specifically described as "Lot 6, Block 17 of Subdivision; Plat of

5 Ryderwood No. 1, Volume 8, page 54, Assessor Tax Parcel No. WN0320237 situated in the

6 County of Cowlitz." All actions alleged herein were taken by the Weavers on their behalf

7 individually and on behalfof their marital connnunity.

8

3. Defendant Ryderwood Improvement Service Association, Inc. ("RISA") is a

9 non-profit corporation, which is incorporated in Washington and does business in Cowlitz

10 County, Washington. All actions and conduct described herein as taken by or conducted by

11 RISA also includes the actions and conduct by or of RISA's officers, members and other

12 representatives.

13

II. JURISDICTION AND VENUE

14

4. The Court has jurisdiction over the parties and issues involved in this lawsuit.

15 Subject matter jurisdiction exists under 28 U.S.C. Section 1331 and otherwise since this case

16 involves substantial issues of federal law, including relating to violations of the federal Fair

17 Housing Act as stated below. The Court also has supplemental jurisdiction over the state law

18 and other claims asserted in this Complaint. Defendant RISA resides in and conducts business

19 in Cowlitz County, Washington. Plaintiffs and the Class members reside in or own real

20 property in Cowlitz County, Washington.

21

5. Venue is proper in this Court under 28 U.S.C. Section 1391 since defendant

22 resides in this judicial district, the events giving rise to the claims stated herein occurred in this

23 judicial district, real property which is the subject of this action is situated in this judicial

24 district, and other reasons.

25

III. FACTS

26

6. Ryderwood is a residential connnunity located in Cowlitz County, Washington.

27

COMPLAINT-CLASS ACTION FOR VIOLATION OF
FEDERAL FAIR HOUSING ACT AND 01HER CLAIMS - 2
12421S.OOOI/I72t= 190.2

LANE POWELL PC 1420 FIFTH AVENUE, SUITE 4100 SEAITLE, WASHINGTON 98101-2338
206.223.7000 FAX: 206.223.7107

Case 3:09-cv-05409-BHS Document 1 Filed 07/08/09 Page 3 of 18

1

7. In the 1950's, Senior Estates, Inc. ("Senior Estates'') developed certain parcels

2 within Ryderwood. The Class is composed ofowners or residents of some of these parcels.

3

8. Attached to the deed of each of the Senior Estates' parcels were certain

4 covenants, conditions and reservations ("CC&Rs"). These CC&Rs expired by their own terms

5 on July 1, 1975.

6

9. The CC&Rs imposed by Senior Estates on those parcels that it developed prior

7 to 1970 provide that one purpose of the development was to create a "community to be

8 occupied by and for the use and benefit of persons who are bona fide recipients of a pension or

9 retirement annuity."

10

10. In 1953, Senior Estates formed RISA to manage certain services for the

11 Ryderwood community. Membership in RISA is voluntary.

12

11. By 1975, the water, sewer and garbage facilities maintained by RISA had

13 deteriorated to the point that they posed a serious health and safety hazard to the residents.

14 Ryderwood residents successfully petitioned Cowlitz County to form a Utility Limited

15 Improvement District. As a result, RISA no longer could fulfill its stated purposes.

16

12. On July 1, 1975, the CC&Rs for those parcels developed and sold by Senior

17 Estates prior to 1970 expired.

18

13. On August 14, 1975, RISA's Board adopted new By-laws that set forth, in

19 substance, the expired CC&Rs (the "Subject By-laws''). Also on August 14, 1975, RISA filed

20 the Subject By-laws with the County Auditor.

21

14. RISA obtained from certain parcel owners a document agreeing that the CC&Rs

22 contained in the By-laws would "be a permanent part and encumbrance on said deed" that

23 could be removed "only by the consent of both the owners of record" and RISA (which

24 document is referred to herein as the "Enforcement Agreement").

25

15. None of the Plaintiffs or Class members (or their predecessors-in-interest)

26 signed an Enforcement Agreement.

27

COMPLAINT-CLASS ACTION FOR VIOLATION OF
FEDERAL FAIR HOUSING ACT AND OTHER CLAIMS - 3
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Case 3:09-cv-05409-BHS Document 1 Filed 07/08/09 Page 4 of 18

1

16. Since August 14, 1975, RISA has sought to enforce the CC&Rs contained in its

2 By-laws against all parcel owners in Ryderwood, regardless of whether RISA obtained an

3 Enforcement Agreement from that parcel owner, and RISA has relied on the Subject By-laws

4 as a basis for compelling Plaintiffs and Class members to not sell their real property or

5 otherwise not act inconsistent with RISA's goals of discrimination on the basis of familial

6 status.

7

17. Plaintiffs and the Class members have withdrawn and resigned from their

8 membership in RISA. However, RISA continues to bill Plaintiffs and the Class members for

9 certain fees.

10

18. RISA has filed liens against the properties of Plaintiffs and Class members for

11 unpaid fees, even though they withdrew and resigned from RISA.

12

19. In addition to setting forth the substance of certain Senior Estate CC&Rs, RISA

13 adopted rules for the ownership or purchase of a home in Ryderwood.

14

20. RISA's rules provide that the owner or purchaser must be "a bona-fide recipient

15 of an annuity or a pension;" that such person ''must not be Jess than fifty-five years of age"; and

16 that there must be "no additional, permanent occupants of the home (other than the spouse)

17 who do not meet the above requirements."

18

21. RISA controls the sale of property within Ryderwood and engages in conduct to

19 limits sales to persons who are 55 years of age or older and have no family members Jess than 20 18 years old.

21

22. The federal Fair Housing Act prohibits discrimination based on familial status.

22 "Familial status" generally refers to families having one or more persons who have not attained

23 the age of 18 years. Prohibited conduct under the Fair Housing Act is described in 42 U.S.C.

24 § 3601, et seq. and related federal regulations.

25

26

27

COMPLAINT-CLASS ACTION FOR VIOLATION OF
FEDERAL FAIR HOUSING ACT AND OTHER CLAIMS - 4
124215.000111728190.2

LANE POWELL PC
1420 FIFTH AVENUE. SUITE 4100
SEATTLE, WASHINGTON 98101-2338
206.223.7000 FAX: 206.223.7107

Case 3:09-cv-05409-BHS Document 1 Filed 07/08/09 Page 5 of 18

1

23. RISA presently engages in conduct and in the past has repeatedly engaged in

2 conduct which violates and is prohibited by the Fair Housing Act and related federal

3 regulations. The following are examples of such prohibited conduct.

4

24. Under the Fair Housing Act and related federal regulations, it is unlawful to

5 engage in any conduct relating to the providing of housing which makes dwellings unavailable

6 or denies dwellings to persons because of familial status. RISA presently engages in such

7 conduct and has done so for numerous years.

8

25. Based on the Fair Housing Act and related federal regulations, it is unlawful for

9 RISA to make, print or publish any notices, statements or advertisements with respect to the

I0 sale of dwellings that indicates preferences, limitations or discrimination because of familial

11 status or an intent to make such preference, limitation or discrimination. RISA does this

12 presently and has done so for numerous years.

13

26. Under the Fair Housing Act and related federal regulations, it is unlawful to

14 provide inaccurate or untrue information about the availability of dwellings for sale because of

15 familial status, or to enforce purported covenants or deed provisions which preclude the sale of

16 dwellings due to familial status. RISA does this presently and has done this for numerous

17 years. For example, RISA represents to real estate agents and escrow companies that

18 Ryderwood's age restrictions are applicable and legal.

19

27. Under the Fair Housing Act and related federal regulations, it is illegal to

20 enforce covenants in order to preclude the sale of property based on familial status. RISA does

21 this presently and has done this for numerous years.

22

28. Under the Fair Housing Act and related federal regulations, it is illegal to

23 threaten, intimidate or interfere with any person in their enjoyment of their dwelling because of

24 their familial status. RISA does this presently and has done this for numerous years. For

25 example, RISA refused to permit Charles Weaver's son to reside with him, even though he

26 shared joint custody of him with his former wife. As another example, RISA forced the son of 27

COMPLAINT----CLASS ACTION FOR VIOLATION OF
FEDERAL FAIR HOUSING ACT AND OTHER CLAIMS - 5
12421 5.000111728190.2

LANE POWELL PC 1420 FIF1H AVENUE, SUITE 4100 SEATILE, WASHINGTON 98101·2338 206.223.7000 FAX: 206.223.7107

Case 3:09-cv-05409-BHS Document 1 Filed 07/08/09 Page 6 of 18

1 a Class member to not live in Ryderwood after he had been caring for a Class member after

2 bypass surgery.

3

29. An exemption exists for the compliance with certain aspects of the Fair Housing

4 Act based on the Housing for Older Persons Amendment ("HOPA''), as stated in 42 U.S.C.

5 § 3607 and related federal regulations. HOPA and related federal regulations set forth strict

6 requirements for compliance with HOPA.

7

30. RISA is not presently and has never been compliant with the requirements of

8 HOPA.

9

31. The Department of Housing and Urban Development, RISA Board members,

10 counsel for RISA, and others have repeatedly told RISA it is not compliant with HOPA. Even

11 after these notifications, RISA has continued to engage in conduct in violation of the Fair

12 Housing Act and related federal regulations.

13

32. For example, in order for a 55 and older community to qualify for the HOPA

14 exemption to the FHA, it must adopt, publish, and adhere to policies and procedures that

15 demonstrate the intent required under HOPA. RISA has not satisfied these requirements. For

16 example, for Plaintiffs and Class members, the restrictions RISA sought to impose through it's

17 the Subject By-Jaws had expired 45 days earlier. In the absence of a written agreement from

18 the affected parcel owner agreeing to abide by the bylaws, they cannot be enforced against

19 non-members ofRISA, such as Plaintiffs and Class members. As a result, no single set of rules

20 governing the entire community exists.

21

33. Once a housing facility or community adopts rules and regulations consistent

22 with HOPA, the facility or community must regularly audit its members to insure it is

23 complying with the age requirement. This requires the conducting of surveys every two years.

24 RISA does not satisfy and has not satisfied this requirement for numerous years.

25

34. HOPA and its related federal regulations, including through interpretation of

26 HUD, set forth very strict requirements regarding when a housing facility or community (which

27

COMPLAINT-CLASS ACTION FOR VIOLATION OF
FEDERAL FAIR HOUSING ACT AND OTHER CLAIMS - 6
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Case 3:09-cv-05409-BHS Document 1 Filed 07/08/09 Page 7 of 18

1 is not HOPA compliant) can be converted to one which is HOPA compliant. RISA has never

2 satisfactorily complied or satisfied these requirements for conversion.

3

35. RISA and its representatives have repeatedly made statements to Plaintiffs and

4 Class members, including at the time of Plaintiffs' and Class members' purchase of their

5 property and subsequently, that RISA is and has been HOPA compliant. RISA has deceived

6 Plaintiffs and Class members since RISA is not and has never been HOPA compliant.

7

36. RISA has caused damages and injuries to Plaintiffs and Class members based on

8 RISA's wrongful acts described herein. These damages and injuries include but are not limited

9 to the wrongful filing of the Subject By-laws and liens on the real property of Plaintiffs and

10 Class members, which wrongfully cloud the title of the real property of Plaintiffs and the Class

II members. RISA's conduct prevents and impairs and has prevented and impaired Plaintiffs' and

12 Class members' abilities to sell their homes.

13

37. As described herein, RISA has wrongfully deceived Plaintiffs and Class

14 members, at the time of the purchase of their homes and/or subsequently, that RISA is HOPA

15 compliant and that RISA's age restrictions are legally enforceable and mandatory. Plaintiffs

16 have been damaged by purchasing real property which they would not have purchased (or

17 would have paid less) if they were told the correct facts and/or by not selling their real property

18 or not taking other actions or engaging in other conduct if they were told the correct facts.

19

38. Plaintiffs and Class members have been damaged by the wrongful billing by

20 RISA for fees which are not owed and by the subsequent filing of related improper liens.

21

39. RISA has wrongfully caused emotional injury and distress of Plaintiffs and

22 Class members. RISA and its representatives and members have wrongfully threatened,

23 intimidated, and extensively harassed Plaintiffs and Class members due to Plaintiffs' and Class

24 members' resignation from RISA and their statements and contentions that RISA is not HOPA

25 compliant and RISA is wrongfully discriminating based on familial status. RISA has caused

26 others to wrongfully threaten, intimidate, and harass Plaintiffs and Class members. This
27

COMPLAINT-CLASS ACTION FOR VIOLATION OF
FEDERAL FAIR HOUSING ACT AND OTHER CLAIMS - 7
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Case 3:09-cv-05409-BHS Document 1 Filed 07/08/09 Page 8 of 18

1 includes that Plaintiffs and Class members have received death threats and repeated threats of

2 serious physical harm.

3

IV. CLASS ACTION ALLEGATIONS

4

40. Plaintiffs bring this lawsuit as a class action on behalf of themselves and all

5 others similarly situated as members of a proposed plaintiff class pursuant to Federal Rule of

6 Civil Procedure 23. The portions of Rule 23 under which Plaintiffs contend this suit is properly

7 maintainable as a class action are Rule 23(a)(1) through (4) and Rule 23(b)(2) and (3).

8

41. The Class is defmed as:

9

All individuals that own or reside on parcels within Ryderwood that

were developed by Senior Estates and contained covenants,

10

conditions and restrictions that expired July 1, 1975 and who have

resigned from RJSA.

11
42. The Class is comprised of at least 75 individuals, which makes joinder of all
12

Class members impracticable. The disposition of the claims of the Class members in a single 13

class action will provide substantial benefits to all parties and the Court. 14
43. There is a well-defined community of interest among members of the Class. 15
The claims of the representative Plaintiffs are typical of the claims of the Class in that the
16

representative Plaintiffs, like all Class members, own or reside in homes in Ryderwood that 17

were developed by Senior Estates and encumbered with CC&Rs that expired in 1975. Further, 18

each has resigned from RJSA. The representative Plaintiffs, like all Class members, have been 19

damaged by RISA's misconduct in that they were deceived into purchasing homes in
20

Ryderwood or have continued to own or reside in Ryderwood based on RJSA's continuing and 21

numerous representations that Ryderwood is and was a community of seniors age 55 and older 22

and compliant with HOPA. Furthermore, RJSA, without consent from individual parcel 23

owners, imposed covenants, conditions and restrictions and filed liens on the property owned or
24

lived in by Plaintiffs or Class members, which prevent or restrict the ability to sell or convey 25

clear title to a prospective purchaser. The factual bases ofRJSA's misconduct are common to 26

all Class members and represent a common thread of fraudulent, deliberate, negligent and/or 27

COMPLAINT-CLASS ACTION FOR VIOLATION OF
FEDERAL FAIR HOUSING ACT AND OTHER CLAIMS - 8
124215.00011172:8190.2

LANE POWELL I'C 1420 F!FIH AVENUE, SUITE 4100 SEAITLE, WASI!ThlGTON 98101-2338
206.223.7000 FAX: 206.223.7107

Case 3:09-cv-05409-BHS Document 1 Filed 07/08/09 Page 9 of 18

I wrongful misconduct resulting in injury to all members of the Class. The party opposing the

2 Class has acted or refused to act on grounds that apply generally to the Class, so that final

3 injunctive relief and corresponding declaratory relief is appropriate respecting the Class as a

4 whole.

5

44. There are numerous questions of law and fact common to Plaintiffs and the

6 Class. These common questions predominate over any questions that may affect individual

7 Class members and include but are not limited to the following:

8

a. Whether RISA engaged in conduct which is violative of the federal Fair

9 Housing Act;

10

b. Whether RISA is not presently and has never been compliant with

ll HOPA;

12

c. Whether RISA acted wrongfully in filing the Subject By-laws in the

13 public real property records relating to real property of Plaintiffs and Class members;

14

d. Whether the Subject By-laws filed by RISA in the public real property

15 records relating to Plaintiffs and the Class members are legally enforceable against Plaintiffs

16 and the Class members;

17

e. Whether Plaintiffs and the Class members are obligated to pay fees to

18 RISA following their withdrawal and resignation from RISA;

19

f. Whether RISA's acts and practices violated the Washington Consumer

20 Protection Act;

21

g. Whether RISA fraudulently concealed from and/or failed to properly

22 disclose to Plaintiffs and Class member the fact that RISA was not HOPA compliant;

23

h. Whether Plaintiffs and the Class are entitled to compensatory, exemplary

24 and statutory damages, and the amount of such damages;

25

i.

Whether the Court should enjoin RISA from engaging in further

26 discriminatory practices based on familial status;

27

COMPLAINT-CLASS ACTION FOR VIOLATION OF
FEDERAL FAIR HOUSING ACT AND OTHER CLAIMS - 9
124215.000111728190.2

LANE POWELL PC 1420 FIFrH AVENUE, SUITE 4100 SEATTLE, WASHINGTON 98101·2338
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Case 3:09-cv-05409-BHS Document 1 Filed 07/08/09 Page 10 of 18

1

j. Whether the Court should require RISA to withdraw and rescind the

2 liens it has filed on public real property records relating to Plaintiffs and Class members

3 concerning the Subject By-laws and purported unpaid fees;

4

k. Whether other damages and declaratory and injunctive relief is

5 appropriate in this case.

6

45. Plaintiffs will fairly and adequately protect the interests of the Class. Plaintiffs

7 have retained counsel with substantial experience in class action litigation and substantial

8 experience with disputes involving homeowners, covenants, and liens affecting real property.

9 Plaintiffs are committed to vigorously prosecuting this action on behalf of the Class, and they

10 have the financial resources to do so. Neither Plaintiffs nor their counsel have any interests

ll adverse to those of the Class.

12

46. Plaintiffs and the members of the Class have all suffered and will continue to

13 suffer harm and damages as a result ofRISA's unlawful and wrongful conduct. A class action

14 is superior to other available methods for the fair and efficient adjudication of the controversy.

15 Absent a class action, and as a practical matter, almost all of the Class members (as individuals)

16 lack the financial capability to file a separate lawsuit or be a party in a lawsuit advancing the

17 claims being brought in this Complaint, which would leave them with no effective remedy at

18 law. Additionally, many of the Class members suffer from significant health problems which

19 render it impractical or impossible for them to be joined as a party to this lawsuit. Absent a

20 class action, Class members will continue to incur damages and RISA's misconduct will

21 continue without remedy. Class treatment of common questions of law and fact is superior to

22 multiple individual suits, piecemeal litigation, or other methods to fairly and efficiently

23 adjudicating the controversies involved. A class action would conserve judicial resources and

24 promote consistency and efficiency ofadjudication.

25

26

27

COMPLAINT-CLASS ACTION FOR VIOLATION OF
FEDERAL FAIR HOUSING ACT AND OTHER CLAIM:S- 10
124215.0001/1728190.2

LANE POWELL PC 1420 FlFfH AVENUE, SUITE 4100 SEATI'LE, WASHINGTON 98101·2338
206.223.7000 FAX: 206.223.7107

Case 3:09-cv-05409-BHS Document 1 Filed 07/08/09 Page 11 of 18

1

V. FIRST CLAIM FOR RELIEF: VIOLATIONS OF FEDERAL FAIR HOUSING ACT

2

47. Plaintiffs reallege and incorporate by reference all preceding paragraphs of this

3 Complaint.

4

48. The actions described herein by RISA constitute violations of the federal Fair

5 Housing Act, as stated in 42 U.S.C. Section 3601, et seq. and related federal regulations. These

6 violations include but are not limited to discrimination on the basis of familial status,

7 and violations of sections 3604(c) and (d) and related federal regulations. RISA engaged in

8 conduct relating to the providing of housing which made dwellings unavailable and denied

9 dwellings to persons because of familial status. RISA made, printed or published, or caused to

10 be made, printed and published, notices, statements and advertisements with respect to the sale

11 of dwellings that indicated preferences, limitations, or discrimination because of familial status

12 or an intent to make such preference, limitation, or discrimination. RISA unlawfully provided

13 inaccurate or untrue information about the availability of dwellings for sale because of familiar

14 status, and RISA enforced purported covenants or deed provisions which preclude the sale of

15 dwellings due to familial status.

16

49. RISA's actions are not exempt under HOPA for numerous reasons, including

17 but not limited to reasons stated herein.

18

50. As described herein, RISA's actions have caused damages and injuries to

19 Plaintiffs and Class members. These damages and injuries include but are not limited to the

20 clouding of their title to their real property by the filing of false and improper restrictions and

21 liens; the prevention and restriction of Plaintiffs and Class members from selling their

22 dwellings and real property; actual and economic losses; emotional distress injuries; attorneys

23 fees and costs; and others. Section 3613(c) of the federal Fair Housing Act provides for the

24 recovery of attorneys' fees and costs.

25

51. Consistent with 42 U.S.C. Section 3613(c) and otherwise, Plaintiffs and the

26 Class members seek to recover all actual damages, punitive damages, their attorneys fees and

27

COMPLAINT-CLASS ACTION FOR VIOLATION OF FEDERAL FAIR HOUSING ACT AND OTHER CLAIMS - I I
124215.0001/1728190.2

LANE POWELL PC 1420 FIFTH AVENUE, SUITE 4100 SEATTLE, WASHINGTON 98101-2338
206.223.7000 FAX' 206.223.7107

Case 3:09-cv-05409-BHS Document 1 Filed 07/08/09 Page 12 of 18

1 costs, and other relief. Additionally, as further described herein, Plaintiffs and the Class

2 members request the Court grant declaratory relief and injunctive relief which enjoin RISA

3 from engaging in such discriminatory practices in the future; compels RISA to withdraw the

4 improper and illegal clouds and liens on their properties; and grants other appropriate relief.

5

VI. SECOND CLAIM FOR RELIEF:

6

FRAUDULENT CONCEALMENT I NONDISCLOSURE

7

52. Plaintiffs reallege and incorporate by reference all preceding paragraphs of this

Complaint. 8

9

53. RISA knew or should have known that its representations that its age restrictions

10 and other requirements were legal and enforceable were not true since RISA is not and has

11 never been HOPA compliant. As described above, RISA received notification of these facts on

12 numerous occasions.

13

54. RISA fraudulently or recklessly concealed from and/or failed to disclose to

14 Plaintiffs, Class members, and others in the business of marketing and selling property within

15 Ryderwood (e.g., concealments and omissions in RISA's communications with real estate

16 companies, real estate agents and escrow companies that were ultimately passed on to Plaintiffs

and Class members) that RISA was not HOPA compliant. 17

18

55. RISA was and is under a duty to Plaintiffs and the Class to disclose these facts

19 because:

20

a. RISA 1s in a superior position to know the facts about its HOPA

21 compliance;

22

b. The Department of Housing and Urban Development and others had

23 informed RlSA that it was not HOPA compliant; and

24

c.

RlSA fraudulently or recklessly concealed its HOPA non-compliance

25 from Plaintiffs and the Class.

26

56. The facts concealed and/or not disclosed by RlSA to Plaintiffs and the Class are

27 material facts in that a reasonable person would have considered them important for numerous

COMPLAINT-CLASS ACTION FOR VIOLATION OF
FEDERAL FAIR HOUSING ACT AND OTHER CLAIMS- 12
124215.000111728190.2

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Case 3:09-cv-05409-BHS Document 1 Filed 07/08/09 Page 13 of 18 '·

1 reasons related to this lawsuit, including but not limited to in deciding whether or not to

2 purchase (or to pay the same price for) or sell real property in Ryderwood.

3

57. R!SA intentionally or recklessly concealed and/or failed to disclose that it did

4 not conform to HOPA requirements for the purpose of inducing Plaintiffs and the Class to act

5 thereon.

6

58. Plaintiffs and the Class justifiably acted and/or relied upon to their detriment the

7 concealed and/or non-disclosed facts.

8

59. As a direct and proximate cause of RISA's wrongful actions, Plaintiffs and the

9 Class members have suffered losses and injuries (as described herein) resulting from RISA's

10 fraudulent, reckless and/or otherwise wrongful concealment and non-disclosure. Accordingly,

11 RISA is liable for all damages proximately caused by its wrongful conduct, in an amount to be

12 proven at the time of trial.

13

VII. THIRD CLAIM FOR RELIEF: CONSUMER PROTECTION ACT

14

60. Plaintiffs reallege and incorporate by reference all preceding paragraphs of this

15 Complaint.

16

61. RISA's wrongful actions described herein constitute violations of the

17 Washington Consumer Protection Act, RCW Ch. 19.86.

18

62. RISA is a "person" within the meaning of RCW 19.86.010(1) and conducts

19 "trade" and "conunerce" within the meaning of RCW 19.86.010(2). Plaintiffs and the Class

20 members are "persons" within the meaning ofRCW 19.86.010(1).

21

63. RlSA's wrongful actions described herein are unfair and deceptive acts and

22 practices within the meaning of the Washington Consumer Protection Act. This includes but is

23 not limited to as specifically stated in RCW Ch. 49.60. RISA's acts and practices as described

24 herein have the tendency or capacity to mislead, and have mislead, a large portion of the

25 consuming public. Such acts and practices were and are capable of deceiving a substantial 26

27

COMPLAINT-CLASS ACTION FOR VIOLATION OF FEDERAL FAIR HOUSING ACT AND OTHER CLAIMS - 13
124215.000111728190.2

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Case 3:09-cv-05409-BHS Document 1 Filed 07/08/09 Page 14 of 18

1 portion of the public, including individuals, real estate companies, real estate agents and escrow

2 companies, in addition to the purchasers of parcels within Ryderwood.

3

64. RISA's unfair and deceptive acts and practices have occurred in trade or

4 business.

5

65. RISA's general course of conduct has an impact on the public interest, and the

6 acts complained of herein are ongoing and/or have a substantial likelihood of being repeated.

7

66. RISA's conduct has caused injury and damage to Plaintiffs and Class members

8 as described herein.

9

67. Plaintiffs and other Class members are therefore entitled to an order enjoining

10 the conduct complained of herein; the award of actual damages, treble damages, costs of suit,

11 and reasonable attorneys fees; and such further relief as the Court may deem proper. Attorneys

12 fees and costs are recoverable under the Consumer Protection Act.

13

VIII. FOURTH CLAIM FOR RELIEF: DECLARATORY RELIEF

14

68. Plaintiffs reallege and incorporate by reference all preceding paragraphs.

15

69. Legal Bases for Declaratory and Injunctive Relief. Justiciable and real

16 controversies and disputes exist between the parties with respect to the issues discussed below

17 and herein. Numerous legal bases exist for the Court to grant declaratory and injunctive relief

18 regarding these disputes.

19

70. As discussed above, under the federal Fair Housing Act and 42 U.S.C.

20 § 3613(c), the Court: "may grant as relief, as the Court deems appropriate, any permanent or

21 temporary injunction, temporary restraining order, or other order (including an order enjoining

22 the defendant from engaging in such practice or ordering such affirmative action as may be

23 appropriate)."

24

71. As discussed herein, a remedy for a violation of the Consumer Protection Act

25 includes the Court may enjoin any further violations of the Consumer Protection Act.

26

27

COMPLAINT-CLASS ACTION FOR VIOLATION OF FEDERALFAIRHOUSING ACT AND OTHER CLAIMS -14
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Case 3:09-cv-05409-BHS Document 1 Filed 07/08/09 Page 15 of 18
' '

1

72. Under RCW 49.60.224, any provision in a written instrument relating to real

2 property is void which purports to forbid or restrict the conveyance, encwnbrance, or

3 occupancy thereof to individuals of a specified families with children status and every

4 condition, restriction or prohibition which directly or indirectly limits the use or occupancy of

5 real property on the basis of families with children status. RCW 49.60.227 states that, if a

6 written instrument contains a provision that is void by reason of RCW 49.60.224, the owner

7 which is subject to the provision may bring a declaratory judgment action involving the striking

8 and eliminating of the void provisions.

9

73. As described above, the Subject By-laws were wrongfully filed as part of the

10 public real property records by RlSA. RlSA was a non-property owner which had no authority

11 to file the Subject By-laws. The Subject By-laws were not signed by or agreed to by Plaintiffs

12 or the Class members (or their predecessors-in-interest). The Subject By-laws violated the

13 statute of frauds. Actual and justiciable controversies presently exist between the parties as to

14 whether it was proper and legal for the Subject By-laws to be filed in the public real property

15 records and whether the By-laws are enforceable against Plaintiffs and Class members and

16 subsequent purchasers. Additionally, membership in RlSA is voluntary. Plaintiffs and the

17 Class members had every right to withdraw and resign from RlSA, and upon such withdrawal

18 and resignation, Plaintiffs and the Class members were not obligated to pay fees to RlSA. It

19 was wrongful for RlSA to file liens on real property owned by Plaintiffs and Class members

20 related to fees which RlSA wrongfully claims are owed by Plaintiffs and Class members.

21 Actual and justiciable controversies presently exist between the parties as to whether such fees

22 were owed by Plaintiffs and Class members and whether it was proper for RlSA to file related

23 liens. Judicial determination regarding these controversies will be final and conclusive and will

24 terminate the controversies and remove and terminate uncertainties related to the controversies.

25

74. Declaratory and Injunctive Relief Sought. Plaintiffs and the Class members

26 request that the Court order the following declaratory and injunctive relief:

27

COMPLAINT---CLASS ACTION FOR VIOLATION OF
FEDERAL FAIR HOUSING ACT AND OTHER CLAIMS - 15
U42lS.OOOlll72S\90,l

LANE POWELL PC 1420 FlFfH AVENUE, SUITE 4100 SEATILE, WASHINGTON 98101-2338
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'' •

Case 3:09-cv-05409-BHS Document 1 Filed 07/08/09 Page 16 of 18

1

a. Declaring the Subject By-laws filed by RISA in the public real property

2 records are void and have no legal binding effect on Plaintiffs and the Class members and on

3 their real property.

4

b. Ordering RISA to take immediate action to rescind and withdraw such

5 filings from the public real property records.

6

c. Declaring RISA is not presently and has never been compliant with

7 HOPA.

8

d. Declaring RISA has engaged in discriminatory acts and practices based

9 on familial status in violation of the Federal Fair Housing Act.

10

e. Ordering RISA to cease making or publishing or causing to be made or

11 published any statements, notices, advertisements or other form of representations that RISA is

12 presently or has ever been HOPA compliant.

13

f.

Ordering RISA to cease making or publishing or causing to be made or

14 published any statements, notices, advertisements or other form of representations that any age

15 restriction whatsoever exists with respect to the real properties owned by Plaintiffs and the

16 Class members.

17

g. Ordering RISA is prohibited from it or any of its members or

18 representatives engaging in any future harassment, intimidation, or threatening conduct of any

19 kind against Plaintiffs or the Class members, which in any way relates to Plaintiffs or the Class

20 members resigning from RISA or their statements or contentions that RISA is not HOPA

21 compliant and that the age restrictions are unlawful.

22

h. Declaring that Plaintiffs and the Class members are legally entitled to

23 resign from RISA, and upon such resignation, they are no longer obligated to pay fees to RISA.

24

i. Ordering RISA to immediately rescind or otherwise withdraw from

25 public real property records any liens filed by RISA which relate to any prior nonpayment of

26 fees by Plaintiffs and Class members following their resignation from RISA.

27

COMPLAINT-CLASS ACTION FOR VIOLATION OF
FEDERALFAIRHOUSING ACT AND OTHER CLAIMS -16
124215.000111728190.2

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Case 3:09-cv-05409-BHS Document 1 Filed 07/08/09 Page 17 of 18

1

j. Declaring and ordering further declaratory and injunctive relief as the

2 Court deems just and appropriate.

3

IX. REQUEST FOR RELIEF

4

WHEREFORE, Plaintiffs, on behalf of themselves and all others similarly situated,

5 request the Court enter a judgment granting relief in favor of Plaintiffs and the Class members

6 and against defendant RISA and entering orders granting the following relief:

7

1. An order certifYing the proposed Class and any appropriate subclasses and

8 designating Plaintiffs as Class Representatives and their counsel as Class Counsel;

9

2. An award of monetary damages, including but not limited to any compensatory,

10 incidental or consequential damages commensurate with proof at trial for the acts complained

11 ofherein;

12

3. An award of punitive damages pursuant to the federal Fair Housing Act;

13

4. An award of treble damages pursuant to the Washington Consumer Protection

14 Act;

15

5. An order or orders granting appropriate declaratory and injunctive relief,

16 including the declaratory and injunctive relief described in Section VIII and otherwise herein;

17

6. An award of Plaintiffs' and the Class members' attorneys' fees and costs

18 incurred herein, based on all legal bases for such recovery stated herein and as otherwise

19 recoverable under applicable law;

20

7. Statutory pre-judgment interest; and

21

22

23

24

25

26

27

COMPLAINT-CLASS ACTION FOR VIOLATION OF
FEDERAL FAIR HOUSING ACT AND OTHER CLAIMS • 17
124215.0{)(}1/1728190.2

LANE POWELL PC !420 FIFfH AVENUE, SUITE 4100 SEATTLE, WASHINGTON 98!01-2338 206.223.7000 FAX, 2Q6.223.7107

Case 3:09-cv-05409-BHS Document 1 Filed 07/08/09 Page 18 of 18

1

2

8. All other relief the Court deems just and appropriate.

3

DATED this ~ay ofJuly, 2009.

4

LANE POWELL PC

5

6

f : B6fyeP:h~C~ynam,

~«
wsbA12728

7

Lane Powell PC

8

1420 Fifth Avenue, Suite 4100

Seattle, Washington 98101-2338

9

Telephone: (206) 223-7000

Facsimile: (206) 223-7107

10

Email: lynamj@lanepowell.com

11

Attorneys for Plaintiffs

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

COMPLAINT-CLASS ACTION FOR VIOLATION OF
FEDERAL FAIR HOUSING ACT AND OTHER CLAIMS - 18
124215.000111728190.2

LANE POWELL PC 1420 FIFl'H AVENUE, SUITE 4100 SEATTLE, WASIIINGTON 98101·2338
206.223.7000 FAX, 206223.7!07

 
 Case 3:09-cv-05409-BHS Document 169 Filed 11/02/12 Page 1 of 19

1

THE HONORABLE BENJAMIN H. SETTLE

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

8

AT TACOMA

9 RAYMOND T. BALVAGE and DEBORAH A. BALVAGE, husband and wife;
10 CHARLES E. WEAVER and SUSAN M. WEAVER, husband and wife; JOYCE
11 MARIE ADAMS; LUVERN HARLAND ALLEN; JAMES ALVIN BAKER and
12 DARLA JEAN BAKER, husband and wife; RALPH ALVIN BARFELL, JR.; SHARON
13 MARIE BANTA; JANIE KAY BODINE; RICHARD ANTHONY BRAGA, JR. and
14 MARGARET LOUISE BRAGA, husband and wife; CHARLES THOMAS
15 CALDWELL and SANDI KAY CALDWELL, husband and wife; LAREN
16 WILLBUR COLEMAN and PAMELA DENISE COLEMAN, husband and wife;
17 ALVIN DEE COLPITTS and CORABELLE COLPITTS, husband and wife; BETTY
18 GENE DONOGHUE; JOYCE ELAIN FISCHER; GLENN RICHARD HUESTIS
19 and CAROL NADINE HUESTIS, husband and wife; BARBARA JEAN JOY; MIRIAM
20 MARGARET KENNEDY-ALLEN; GERALD BLAIR KOLB; ALFRED
21 WESLEY LEACH and GLORIA EILEEN LEACH, husband and wife; RAYMOND
22 ERNEST MORRIS and CAROLYN L. MORRIS, husband and wife; KAREN
23 CAMPBELL; BOB PISTONE and DORIS PISTONE, husband and wife; VERN
24 POWELL and SHARON POWELL, husband and wife; CHARLES JOHN
25 SANTINEAU; BARBARA LOUISE PEPPER; LUCAS JOHN SHIMMIN; DON
26 SMITH and DIANE SMITH, husband and wife; DONALD NEIL STROUD and
27 SHARON LEE STROUD, husband and

No. 3:09-cv-05409-BHS
PLAINTIFFS’ THIRD AMENDED COMPLAINT FOR VIOLATION OF FEDERAL FAIR HOUSING ACT AND OTHER CLAIMS

PLAINTIFFS’ THIRD AMENDED COMPLAINT FOR VIOLATION OF FEDERAL FAIR HOUSING ACT AND OTHER CLAIMS - 1 No. 3:09-cv-05409-BHS

LANE POWELL PC 1420 FIFTH AVENUE, SUITE 4100 SEATTLE, WASHINGTON 98101-2338
206.223.7000 FAX: 206.223.7107

124215.0001/5488666.2

Case 3:09-cv-05409-BHS Document 169 Filed 11/02/12 Page 2 of 19

1 wife; WALTER GORDON WEST and

JANET MARIE WEST, husband and wife;

2 BEVERLY WHITE; BOB WHITE and

DIANE WHITE, husband and wife;

3

Plaintiffs,

4

v.

5 RYDERWOOD IMPROVEMENT AND SERVICE ASSOCIATION, INC., a
6 Washington non-profit corporation,

7

Defendant.

8

9

All Plaintiffs named above allege and state as follows:

10

I. PARTIES

11

1. Plaintiffs Raymond T. Balvage and Deborah A. Balvage are husband and wife

12 and own real property located at 300 Taylor Street, Ryderwood, Washington 98581, which is

13 specifically described as “Lot 9, Block 17, Ryderwood No. 1, according to the plat thereof,

14 recorded in Volume 8 of plats, page 54, records of Cowlitz County, Washington. Together

15 with that portion of vacated Third Street which attaches by Order of Vacation under Resolution

16 No. 98-028 under AF #3012253.” All actions alleged herein were taken by the Balvages on

17 their behalf individually or on behalf of their marital community.

18

2. Plaintiffs Charles E. Weaver and Susan M. Weaver are husband and wife and

19 own real property located at 305 Jackson Street, Ryderwood, Washington 98581, which is

20 specifically described as “Lot 6, Block 17 of Subdivision; Plat of Ryderwood No. 1, Volume 8,

21 page 54, Assessor Tax Parcel No. WN0320237 situated in the County of Cowlitz.” All actions

22 alleged herein were taken by the Weavers on their behalf individually or on behalf of their

23 marital community.

24

3. Plaintiff Joyce Marie Adams owns the real property and house located at 104

25 Monroe Street, Ryderwood, Washington 98581.

26

4. Plaintiff Luvern Harland Allen owns the real property and house located at 302

27 Taylor Street, Ryderwood, Washington 98581.
PLAINTIFFS’ THIRD AMENDED COMPLAINT FOR VIOLATION OF FEDERAL FAIR HOUSING ACT AND OTHER CLAIMS - 2 No. 3:09-cv-05409-BHS
124215.0001/5488666.2

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Case 3:09-cv-05409-BHS Document 169 Filed 11/02/12 Page 3 of 19

1

5. Plaintiffs James Alvin Baker and Darla Jean Baker, husband and wife, own the

2 real property and house located at 303 Taylor Street, Ryderwood, Washington 98581. All

3 actions of them alleged herein were taken on behalf of them individually and on behalf of their

4 marital community.

5

6. Plaintiffs Alvin Barfell, Jr. and Sharon Marie Banta jointly own the real property

6 and house located at 212 Monroe Street, Ryderwood, Washington 98581.

7

7. Plaintiff Janie Kay Bodine owns the real property and house located at 301

8 Taylor Street, Ryderwood, Washington 98581.

9

8. Plaintiffs Richard Anthony Braga, Jr. and Margaret Louise Braga, husband and

10 wife, own the real property and house located at 503 Morse, Ryderwood, Washington 98581.

11 All actions of them alleged herein were taken on behalf of them individually and on behalf of

12 their marital community.

13

9. Plaintiffs Charles Thomas Caldwell and Sandi Kay Caldwell, husband and wife,

14 own the real property and house located at 515 Monroe, Ryderwood, Washington 98581. All

15 actions of them alleged herein were taken on behalf of them individually and on behalf of their

16 marital community.

17

10. Plaintiffs Laren Willbur Coleman and Pamela Denise Coleman, husband and

18 wife, own the real property and house located at 209 Monroe, Ryderwood, Washington 98581.

19 All actions of them alleged herein were taken on behalf of them individually and on behalf of

20 their marital community.

21

11. Plaintiffs Alvin Dee Colpitts and Corabelle Colpitts, husband and wife, own the

22 real property and house located at 109 Madison Street, Ryderwood, Washington 98581. All

23 actions of them alleged herein were taken on behalf of them individually and on behalf of their

24 marital community.

25

12. Plaintiff Betty Gene Donoghue owns the real property and house located at 100

26 Monroe, Ryderwood, Washington 98581.

27
PLAINTIFFS’ THIRD AMENDED COMPLAINT FOR VIOLATION OF FEDERAL FAIR HOUSING ACT AND OTHER CLAIMS - 3 No. 3:09-cv-05409-BHS
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Case 3:09-cv-05409-BHS Document 169 Filed 11/02/12 Page 4 of 19

1

13. Plaintiff Joyce Elain Fischer owns the real property and house located at 302

2 Jackson Street, Ryderwood, Washington 98581.

3

14. Plaintiffs Glenn Richard Huestis and Carol Nadine Huestis, husband and wife,

4 own the real property and house located at 201 Taylor Street, Ryderwood, Washington 98581.

5 All actions of them alleged herein were taken on behalf of them individually and on behalf of

6 their marital community.

7

15. Plaintiff Barbara Jean Joy owns the real property and house located at 615

8 Monroe, Ryderwood, Washington 98581.

9

16. Plaintiff Miriam Margaret Kennedy-Allen owns the real property and house

10 located at 415 Monroe, Ryderwood, Washington 98581.

11

17. Plaintiff Gerald Blair Kolb owns the real property and house located at 203

12 Taylor Street, Ryderwood, Washington 98581.

13

18. Plaintiffs Alfred Wesley Leach and Gloria Eileen Leach, husband and wife, own

14 the real property and house located at 215 Morse Street, Ryderwood, Washington 98581. All

15 actions of them alleged herein were taken on behalf of them individually and on behalf of their

16 marital community.

17

19. Plaintiffs Raymond Ernest Morris and Carolyn L. Morris, husband and wife,

18 husband and wife, own the real property and house located at 401 Taylor Street, Ryderwood,

19 Washington 98581. All actions of them alleged herein were taken on behalf of them

20 individually and on behalf of their marital community.

21

20. Plaintiff Karen Campbell owns the real property and house located at 205

22 Jackson, Ryderwood, Washington 98581.

23

21. Plaintiffs Bob Pistone and Doris Pistone, husband and wife, own the real

24 property and house located at 200 Jackson, Ryderwood, Washington 98581. All actions of

25 them alleged herein were taken on behalf of them individually and on behalf of their marital

26 community.

27
PLAINTIFFS’ THIRD AMENDED COMPLAINT FOR VIOLATION OF FEDERAL FAIR HOUSING ACT AND OTHER CLAIMS - 4 No. 3:09-cv-05409-BHS
124215.0001/5488666.2

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Case 3:09-cv-05409-BHS Document 169 Filed 11/02/12 Page 5 of 19

1

22. Plaintiffs Vern Powell and Sharon Powell, husband and wife, own the real

2 property and house located at 500 Morse, Ryderwood, Washington 98581. All actions of them

3 alleged herein were taken on behalf of them individually and on behalf of their marital

4 community.

5

23. Plaintiffs Charles John Santineau and Barbara Louise Pepper jointly own the

6 real property and house located at 304 Taylor Street, Ryderwood, Washington 98581.

7

24. Plaintiff Lucas John Shimmin owns the real property and house located at 300

8 Jackson Street, Ryderwood, Washington 98581.

9

25. Plaintiffs Don Smith and Diane Smith, husband and wife, own the real property

10 and house located at 208 Monroe, Ryderwood, Washington 98581. All actions of them alleged

11 herein were taken on behalf of them individually and on behalf of their marital community.

12

26. Plaintiffs Donald Neil Stroud and Sharon Lee Stroud, husband and wife, own

13 the real property and house located at 213 Taylor, Ryderwood, Washington 98581. All actions

14 of them alleged herein were taken on behalf of them individually and on behalf of their marital

15 community.

16

27. Plaintiffs Walter Gordon West and Janet Marie West, husband and wife, own

17 the real property and house located at 305 Taylor Street, Ryderwood, Washington 98581. All

18 actions of them alleged herein were taken on behalf of them individually and on behalf of their

19 marital community.

20

28. Plaintiff Beverly White owns the real property and house located at 102

21 Monroe, Ryderwood, Washington 98581.

22

29. Plaintiffs Bob White and Diane White, husband and wife, own the real

23 properties and houses located at 312 Jackson Street and 204 Monroe Street, Ryderwood,

24 Washington 98581. All actions of them alleged herein were taken on behalf of them

25 individually and on behalf of their marital community.

26

30. Defendant Ryderwood Improvement and Service Association, Inc. (“RISA”) is a

27 non-profit corporation, which is incorporated in Washington and does business in Cowlitz

PLAINTIFFS’ THIRD AMENDED COMPLAINT FOR VIOLATION OF FEDERAL FAIR HOUSING ACT AND OTHER CLAIMS - 5 No. 3:09-cv-05409-BHS

LANE POWELL PC 1420 FIFTH AVENUE, SUITE 4100 SEATTLE, WASHINGTON 98101-2338
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124215.0001/5488666.2

Case 3:09-cv-05409-BHS Document 169 Filed 11/02/12 Page 6 of 19

1 County, Washington. All actions and conduct described herein as taken by or conducted by

2 RISA also include the actions and conduct by or of RISA’s officers, members, agents, and

3 other representatives.

4

II. JURISDICTION AND VENUE

5

31. The Court has jurisdiction over the parties and issues involved in this lawsuit.

6 Subject matter jurisdiction exists under 28 U.S.C. Section 1331 since this case involves

7 substantial issues of federal law, including claims related to violations of the federal Fair

8 Housing Act as stated below. The Court also has supplemental jurisdiction over the state law

9 and other claims asserted in this Complaint. Defendant RISA resides in and conducts business

10 in Cowlitz County, Washington. Plaintiffs reside in or own real property in Cowlitz County,

11 Washington.

12

32. Venue is proper in this Court under 28 U.S.C. Section 1391 since defendant

13 resides in this judicial district, the events giving rise to the claims stated herein occurred in this

14 judicial district, real property which is the subject of this action is situated in this judicial

15 district, and other reasons.

16

III. FACTS

17

33. Ryderwood is a residential community located in Cowlitz County, Washington.

18

34. In the 1950’s, Senior Estates, Inc. (“Senior Estates”) developed certain parcels

19 within Ryderwood.

20

35. Attached to the deed of each of the Senior Estates’ parcels were certain

21 covenants, conditions and reservations (“CC&Rs”). These CC&Rs expired by their own terms

22 on July 1, 1975.

23

36. The CC&Rs imposed by Senior Estates on those parcels that it developed prior

24 to 1970 provide that one purpose of the development was to create a “community to be

25 occupied by and for the use and benefit of persons who are bona fide recipients of a pension or

26 retirement annuity.”

27
PLAINTIFFS’ THIRD AMENDED COMPLAINT FOR VIOLATION OF FEDERAL FAIR HOUSING ACT AND OTHER CLAIMS - 6 No. 3:09-cv-05409-BHS
124215.0001/5488666.2

LANE POWELL PC 1420 FIFTH AVENUE, SUITE 4100 SEATTLE, WASHINGTON 98101-2338
206.223.7000 FAX: 206.223.7107

Case 3:09-cv-05409-BHS Document 169 Filed 11/02/12 Page 7 of 19

1

37. In 1953, Senior Estates formed RISA to manage certain services for the

2 Ryderwood community. Membership in RISA is voluntary.

3

38. By 1975, the water, sewer and garbage facilities maintained by RISA had

4 deteriorated to the point that they posed a serious health and safety hazard to the residents.

5 Ryderwood residents successfully petitioned Cowlitz County to form a Utility Limited

6 Improvement District. As a result, RISA no longer could fulfill its stated purposes.

7

39. On July 1, 1975, the CC&Rs for those parcels developed and sold by Senior

8 Estates prior to 1970 expired by their own terms.

9

40. On August 14, 1975, RISA’s Board adopted new Bylaws that set forth, in

10 substance, the expired CC&Rs (the “Subject Bylaws”). Also on August 14, 1975, RISA filed

11 the Subject Bylaws with the County Auditor.

12

41. RISA obtained from certain parcel owners a document agreeing that the CC&Rs

13 contained in the Bylaws would “be a permanent part and encumbrance on said deed” that could

14 be removed “only by the consent of both the owners of record” and RISA (which document is

15 referred to herein as the “Enforcement Agreement”).

16

42. None of the Plaintiffs (or their predecessors-in-interest) signed an Enforcement

17 Agreement.

18

43. Since August 14, 1975, RISA has sought to enforce the CC&Rs contained in its

19 Bylaws against all parcel owners in Ryderwood, regardless of whether RISA obtained an

20 Enforcement Agreement from that parcel owner or that parcel owner’s predecessor in interest.

21 RISA has relied on the Subject Bylaws as a basis for preventing Plaintiffs from selling their

22 real property, for charging Plaintiffs fees for services they neither requested nor used, and for

23 engaging in discriminatory and retaliatory conduct against Plaintiffs.

24

44. When they purchased their property, some or all Plaintiffs became members of

25 RISA by signing a Certificate of Membership. The Certificate of Membership did not meet the

26 formal requirements of a deed and contained no language limiting the Plaintiffs’ ability to

27 withdraw from RISA.
PLAINTIFFS’ THIRD AMENDED COMPLAINT FOR VIOLATION OF FEDERAL FAIR HOUSING ACT AND OTHER CLAIMS - 7 No. 3:09-cv-05409-BHS
124215.0001/5488666.2

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Case 3:09-cv-05409-BHS Document 169 Filed 11/02/12 Page 8 of 19

1

45. Plaintiffs have withdrawn and resigned from their membership in RISA.

2 However, RISA continues to bill Plaintiffs for certain fees.

3

46. RISA has filed liens against the properties of some or all Plaintiffs for unpaid

4 fees, even though they withdrew and resigned from RISA.

5

47. In addition to setting forth the substance of certain Senior Estate CC&Rs, RISA

6 adopted rules for the ownership or purchase of a home in Ryderwood.

7

48. RISA’s rules provide that the owner or purchaser must be “a bona-fide recipient

8 of an annuity or a pension;” that such person “must not be less than fifty-five years of age”; and

9 that there must be “no additional, permanent occupants of the home (other than the spouse)

10 who do not meet the above requirements.”

11

49. RISA controls the sale of property within Ryderwood and engages in conduct to

12 limits sales to persons who are 55 years of age or older and have no family members less than

13 18 years old.

14

50. The federal Fair Housing Act prohibits discrimination based on familial status.

15 “Familial status” generally refers to families having one or more persons who have not attained

16 the age of 18 years. Prohibited conduct under the Fair Housing Act is described in 42 U.S.C. §

17 3601, et seq. and related federal regulations.

18

51. RISA presently engages in conduct and in the past has repeatedly engaged in

19 conduct which violates and is prohibited by the Fair Housing Act and related federal

20 regulations. The following are examples of such prohibited conduct.

21

52. Under the Fair Housing Act and related federal regulations, it is unlawful to

22 engage in any conduct relating to the providing of housing which makes dwellings unavailable

23 or denies dwellings to persons because of familial status. RISA presently engages in such

24 conduct and has done so for numerous years.

25

53. Based on the Fair Housing Act and related federal regulations, it is unlawful for

26 RISA to make, print or publish any notices, statements or advertisements with respect to the

27 sale of dwellings that indicates preferences, limitations or discrimination because of familial

PLAINTIFFS’ THIRD AMENDED COMPLAINT FOR VIOLATION OF FEDERAL FAIR HOUSING ACT AND OTHER CLAIMS - 8 No. 3:09-cv-05409-BHS

LANE POWELL PC 1420 FIFTH AVENUE, SUITE 4100 SEATTLE, WASHINGTON 98101-2338
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124215.0001/5488666.2

Case 3:09-cv-05409-BHS Document 169 Filed 11/02/12 Page 9 of 19

1 status or an intent to make such preference, limitation or discrimination. RISA does this

2 presently and has done so for numerous years.

3

54. Under the Fair Housing Act and related federal regulations, it is unlawful to

4 provide inaccurate or untrue information about the availability of dwellings for sale because of

5 familial status, or to enforce purported covenants or deed provisions which preclude the sale of

6 dwellings due to familial status. RISA does this presently and has done this for numerous

7 years. For example, RISA represents to real estate agents and escrow companies that

8 Ryderwood’s age restrictions are applicable and legal.

9

55. Under the Fair Housing Act and related federal regulations, it is illegal to

10 enforce covenants in order to preclude the sale of property based on familial status. RISA does

11 this presently and has done this for numerous years.

12

56. Under the Fair Housing Act and related federal regulations, it is illegal to

13 threaten, intimidate or interfere with any person in their enjoyment of their dwelling because of

14 their familial status. RISA does this presently and has done this for numerous years. For

15 example, RISA refused to permit Charles Weaver’s son to reside with him, even though he

16 shared joint custody of him with his former wife.

17

57. An exemption exists for the compliance with certain aspects of the Fair Housing

18 Act based on the Housing for Older Persons Amendment (“HOPA”), as stated in 42 U.S.C. §

19 3607 and related federal regulations. HOPA and related federal regulations set forth strict

20 requirements for compliance with HOPA.

21

58. RISA is not presently and has never been compliant with the requirements of

22 HOPA.

23

59. The Department of Housing and Urban Development, RISA Board members,

24 counsel for RISA, and others have repeatedly told RISA it is not compliant with HOPA. Even

25 after these notifications, RISA has continued to engage in conduct in violation of the Fair

26 Housing Act and related federal regulations.

27
PLAINTIFFS’ THIRD AMENDED COMPLAINT FOR VIOLATION OF FEDERAL FAIR HOUSING ACT AND OTHER CLAIMS - 9 No. 3:09-cv-05409-BHS
124215.0001/5488666.2

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Case 3:09-cv-05409-BHS Document 169 Filed 11/02/12 Page 10 of 19

1

60. A facility or community must regularly audit its members to insure it is

2 complying with the age requirement in order to comply with HOPA. This requires the

3 conducting of surveys every two years. RISA does not satisfy and has not satisfied this

4 requirement for numerous years.

5

61. HOPA and its related federal regulations, including through interpretation of

6 HUD, set forth very strict requirements regarding when a housing facility or community (which

7 is not HOPA compliant) can be converted to one which is HOPA compliant. RISA has never

8 satisfactorily complied or satisfied these requirements for conversion.

9

62. RISA and its representatives have repeatedly made statements to Plaintiffs,

10 including at the time of Plaintiffs’ purchase of their property and subsequently, that RISA is

11 and has been HOPA compliant. RISA has deceived Plaintiffs since RISA is not and has never

12 been HOPA compliant.

13

63. RISA has caused damages and injuries to Plaintiffs based on RISA’s wrongful

14 acts described herein. These damages and injuries include but are not limited to the wrongful

15 filing of the Subject Bylaws and liens on the real property of Plaintiffs, which wrongfully cloud

16 the title of the real property of Plaintiffs. RISA’s conduct prevents and impairs and has

17 prevented and impaired Plaintiffs’ abilities to sell their homes.

18

64. The Plaintiffs wish to sell their homes and move away from Ryderwood. The

19 Plaintiffs suffer ongoing injuries arising out of the conundrum they face in selling their homes.

20 For example, local real estate agents will not list Plaintiffs’ properties for sale to the general

21 public, only for sale to persons aged 55 and older. Plaintiffs do not believe that such familial

22 status discrimination is enforceable. Thus, Plaintiffs must either remain in homes they wish to

23 sell or expose themselves to liability for violation of anti-discrimination statutes. Also,

24 Plaintiffs face liability for potential misrepresentations being made to future buyers.

25

65. Plaintiffs have been damaged by the wrongful billing by RISA for fees which

26 are not owed and by the subsequent filing of related improper liens.

27
PLAINTIFFS’ THIRD AMENDED COMPLAINT FOR VIOLATION OF FEDERAL FAIR HOUSING ACT AND OTHER CLAIMS - 10 No. 3:09-cv-05409-BHS
124215.0001/5488666.2

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Case 3:09-cv-05409-BHS Document 169 Filed 11/02/12 Page 11 of 19

1

66. Due to Plaintiffs’ claims and statements that RISA is not HOPA compliant,

2 RISA is wrongfully discriminating, and RISA is otherwise in violation of the Fair Housing Act,

3 RISA and its representatives and members have wrongfully threatened, intimidated, interfered

4 with and harassed Plaintiffs. RISA has caused others to wrongfully threaten, intimidate,

5 interfere with and harass Plaintiffs and has failed to take appropriate actions to prevent its

6 members from engaging in such actions. These wrongful actions have included (and continue

7 to include) but are not limited to:

8

a. Threats of serious physical harm, such as death threats, running off the

9

road, threatening with firearms, and others;

10

b. Wrongfully preventing or impairing Plaintiffs’ ability to sell or purchase

11

their houses;

12

c. Wrongfully denying services and access to common areas to Plaintiffs

13

while still billing them for the services and use of common areas;

14

d. Wrongfully imposing monetary fines on Plaintiffs;

15

e. Wrongfully filing liens on the real property of Plaintiffs and actions to

16

enforce or realize upon such liens;

17

f. Selectively enforcing the no residents under 55 policy against Plaintiffs

18

while not enforcing it against non-Plaintiffs members of RISA or its board members;

19

g. Wrongfully taking actions to restrict the free speech of Plaintiffs;

20

h. The conduct described herein in other paragraphs; and

21

i. Other actions.

22 This wrongful and illegal conduct is continuing.

23

24
25 67.
26 Complaint.
27

IV. FIRST CLAIM FOR RELIEF: VIOLATIONS OF FEDERAL FAIR HOUSING ACT
Plaintiffs reallege and incorporate by reference all preceding paragraphs of this

PLAINTIFFS’ THIRD AMENDED COMPLAINT FOR VIOLATION OF FEDERAL FAIR HOUSING ACT AND OTHER CLAIMS - 11 No. 3:09-cv-05409-BHS

LANE POWELL PC 1420 FIFTH AVENUE, SUITE 4100 SEATTLE, WASHINGTON 98101-2338
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1

68. The actions described herein by RISA constitute violations of the federal Fair

2 Housing Act, as stated in 42 U.S.C. Section 3601, et seq. and related federal regulations. These

3 violations include but are not limited to discrimination on the basis of familial status, and

4 violations of sections 3604(c) and (d) and related federal regulations. RISA engaged in

5 conduct relating to the providing of housing which made dwellings unavailable and denied

6 dwellings to persons because of familial status. RISA made, printed or published, or caused to

7 be made, printed and published, notices, statements and advertisements with respect to the sale

8 of dwellings that indicated preferences, limitations, or discrimination because of familial status

9 or an intent to make such preference, limitation, or discrimination. RISA unlawfully provided

10 inaccurate or untrue information about the availability of dwellings for sale because of familiar

11 status, and RISA enforced purported covenants or deed provisions which preclude the sale of

12 dwellings due to familial status.

13

69. RISA’s actions are not exempt under HOPA for numerous reasons, including

14 but not limited to reasons stated herein.

15

70. As described herein, RISA’s actions have caused damages and injuries to

16 Plaintiffs. These damages and injuries include but are not limited to the clouding of their title

17 to their real property by the filing of false and improper restrictions and liens; the prevention

18 and restriction of Plaintiffs from selling their dwellings and real property; actual and economic

19 losses; emotional distress injuries; attorneys fees and costs; and others. Section 3613(c) of the

20 federal Fair Housing Act provides for the recovery of attorneys’ fees and costs.

21

71. Consistent with 42 U.S.C. Section 3613(c) and otherwise, Plaintiffs seek to

22 recover nominal damages, punitive damages, their attorneys fees and costs, and other relief.

23 Additionally, as further described herein, Plaintiffs request the Court grant declaratory relief

24 and injunctive relief which enjoins RISA from engaging in such discriminatory practices in the

25 future; compels RISA to withdraw the improper and illegal clouds and liens on their properties;

26 and grants other appropriate relief.

27
PLAINTIFFS’ THIRD AMENDED COMPLAINT FOR VIOLATION OF FEDERAL FAIR HOUSING ACT AND OTHER CLAIMS - 12 No. 3:09-cv-05409-BHS
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1

V. SECOND CLAIM FOR RELIEF: DECLARATORY RELIEF

2

72. Plaintiffs reallege and incorporate by reference all preceding paragraphs.

3

73. Legal Bases for Declaratory and Injunctive Relief. Justiciable and real

4 controversies and disputes exist between the parties with respect to the issues discussed below

5 and herein. Numerous legal bases exist for the Court to grant declaratory and injunctive relief

6 regarding these disputes.

7

74. As discussed above, under the federal Fair Housing Act and 42 U.S.C. §

8 3613(c), the Court: “may grant as relief, as the Court deems appropriate, any permanent or

9 temporary injunction, temporary restraining order, or other order (including an order enjoining

10 the defendant from engaging in such practice or ordering such affirmative action as may be

11 appropriate).”

12

75. Under RCW 49.60.224, any provision in a written instrument relating to real

13 property is void which purports to forbid or restrict the conveyance, encumbrance, or

14 occupancy thereof to individuals of a specified families with children status and every

15 condition, restriction or prohibition which directly or indirectly limits the use or occupancy of

16 real property on the basis of families with children status. RCW 49.60.227 states that, if a

17 written instrument contains a provision that is void by reason of RCW 49.60.224, the owner

18 which is subject to the provision may bring a declaratory judgment action involving the striking

19 and eliminating of the void provisions.

20

76. As described above, the Subject Bylaws were wrongfully filed as part of the

21 public real property records by RISA. RISA was a non property owner which had no authority

22 to file the Subject Bylaws. The Subject Bylaws were not signed by or agreed to by Plaintiffs

23 (or their predecessors-in-interest). The Subject Bylaws violated the statute of frauds. Actual

24 and justiciable controversies presently exist between the parties as to whether it was proper and

25 legal for the Subject Bylaws to be filed in the public real property records and whether the By-

26 laws are enforceable against Plaintiffs and subsequent purchasers. Additionally, membership

27 in RISA is voluntary. Plaintiffs had every right to withdraw and resign from RISA, and upon

PLAINTIFFS’ THIRD AMENDED COMPLAINT FOR VIOLATION OF FEDERAL FAIR HOUSING ACT AND OTHER CLAIMS - 13 No. 3:09-cv-05409-BHS

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1 such withdrawal and resignation, Plaintiffs were not obligated to pay fees to RISA. It was

2 wrongful for RISA to file liens on real property owned by Plaintiffs related to fees which RISA

3 wrongfully claims are owed by Plaintiffs. Actual and justiciable controversies presently exist

4 between the parties as to whether such fees were owed by Plaintiffs and whether it was proper

5 for RISA to file related liens. Judicial determination regarding these controversies will be final

6 and conclusive and will terminate the controversies and remove and terminate uncertainties

7 related to the controversies.

8

77. Declaratory and Injunctive Relief Sought. Plaintiffs request that the Court

9 order the following declaratory and injunctive relief:

10

a. Declaring the Subject Bylaws filed by RISA in the public real property

11

records are void and have no legal binding effect on Plaintiffs and on their real property.

12

b. Ordering RISA to take immediate action to rescind and withdraw such

13

filings from the public real property records.

14

c. Declaring RISA is not presently and has never been compliant with

15

HOPA.

16

d. Declaring RISA has engaged in discriminatory acts and practices based

17

on familial status in violation of the Federal Fair Housing Act.

18

e. Ordering RISA to cease making or publishing or causing to be made or

19

published any statements, notices, advertisements or other form of representations that

20

RISA is presently or has ever been HOPA compliant.

21

f. Ordering RISA to cease making or publishing or causing to be made or

22

published any statements, notices, advertisements or other form of representations that

23

any age restriction whatsoever exists with respect to the real properties owned by

24

Plaintiffs.

25

g. Ordering RISA to send a letter to all licensed real estate agencies within

26

50 miles of Ryderwood advising such agencies that sales and rental of homes in

27
PLAINTIFFS’ THIRD AMENDED COMPLAINT FOR VIOLATION OF FEDERAL FAIR HOUSING ACT AND OTHER CLAIMS - 14 No. 3:09-cv-05409-BHS
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1

Ryderwood is open to all persons, including families with children and persons under

2

the age of 55.

3

h. Ordering RISA is prohibited from it or any of its members or

4

representatives engaging in any future harassment, intimidation, or threatening conduct

5

of any kind against Plaintiffs, which in any way relates to Plaintiffs resigning from

6

RISA or their statements or contentions that RISA is not HOPA compliant and that the

7

age restrictions are unlawful.

8

i. Declaring that Plaintiffs are legally entitled to resign from RISA, and

9

upon such resignation, they are no longer obligated to pay fees to RISA.

10

j. Ordering RISA to immediately rescind or otherwise withdraw from

11

public real property records any liens filed by RISA which relate to any prior

12

nonpayment of fees by Plaintiffs following their resignation from RISA.

13

k. Declaring and ordering further declaratory and injunctive relief as the

14

Court deems just and appropriate.

15

VI. THIRD CLAIM FOR RELIEF:

VIOLATIONS OF 42 U.S.C. § 3617 16
78. Plaintiffs reallege and incorporate by reference all allegations contained in the

17 preceding paragraphs of this pleading.

18 79. After Plaintiffs raised objections and/or after Plaintiffs had made claims that

19 RISA was not HOPA compliant or was engaging in unlawful discrimination under the federal

20 Fair Housing Act or other applicable laws, RISA acted wrongfully and unlawfully by taking

21 actions, by causing or allowing others to take actions, and/or in not preventing or dissuading

22 others from taking actions to retaliate against Plaintiffs and to otherwise take actions which

23 were or are in violation of 42 U.S.C. § 3617. 42 U.S.C. § 3617 states:

24

It shall be unlawful to coerce, intimidate, threaten, or interfere with any person

25

in the exercise or enjoyment of, or on account of his having exercised or

enjoyed, or on account of his having aided or encouraged any other person in the

26

exercise or enjoyment of, any right granted or protected by Section 3603, 3604,

3605, or 3606 of this title. 27

PLAINTIFFS’ THIRD AMENDED COMPLAINT FOR VIOLATION OF FEDERAL FAIR HOUSING ACT AND OTHER CLAIMS - 15 No. 3:09-cv-05409-BHS

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1

80. Such wrongful and unlawful conduct included and continues to include but was

2 and is not limited to:

3

a. Threats of serious physical harm, such as death threats, running off the

4

road, threatening with firearms, and others;

5

b. Wrongfully preventing or impairing Plaintiffs’ ability to sell or purchase

6

their houses;

7

c. Wrongfully denying services and access to common areas to Plaintiffs

8

while still billing them for the services and use of common areas;

9

d. Wrongfully imposing monetary fines on Plaintiffs;

10

e. Wrongfully filing liens on the real property of Plaintiffs and actions to

11

enforce or realize upon such liens;

12

f. Selectively enforcing the no residents under 55 policy against Plaintiffs

13

while not enforcing it against non-Plaintiffs members of RISA or its board members;

14

g. Wrongfully taking actions to restrict the free speech of Plaintiffs;

15

h. The conduct described herein in other paragraphs; and

16

i. Other actions.

17

81. These wrongful actions were done and are continuing to be done by RISA, its

18 board members, its members, and others (who RISA aided or encouraged or otherwise caused

19 to do). RISA as an association knew or should have known of these retaliatory and wrongful

20 and unlawful actions, and RISA failed to take action to prevent them or try to prevent them.

21 These wrongful and unlawful actions were intentionally done in an effort to prevent or impair

22 Plaintiffs’ efforts to prevent discrimination. These actions were done for purposes of and

23 constituted coercion, intimidation, threats and interference of Plaintiffs in their exercise or

24 enjoyment of Plaintiffs’ rights and in Plaintiffs’ efforts to aid and encourage other persons in

25 the exercise or enjoyment of their rights. Plaintiffs were members of the protected class of

26 persons protected by the federal Fair Housing Act and/or were aiding and encouraging other

27 persons in the exercise or enjoyment of their rights under the federal Fair Housing Act.

PLAINTIFFS’ THIRD AMENDED COMPLAINT FOR VIOLATION OF FEDERAL FAIR HOUSING ACT AND OTHER CLAIMS - 16 No. 3:09-cv-05409-BHS

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1

82. Such wrongful and unlawful conduct was the actual cause and proximate cause

2 of injuries and damages to Plaintiffs. Plaintiffs’ injuries and damages include but are not

3 limited to emotional distress, medical bills, other financial loss, and others.

4

83. Plaintiffs seek recovery of their actual damages, punitive damages, and their

5 attorneys’ fees and costs, all of which are recoverable under the federal Fair Housing Act,

6 including but not limited to as provided in 42 U.S.C. § 3613. RISA’s wrongful and illegal

7 actions were done in bad faith and with malice, and were so reckless, callous and egregious,

8 that an award of punitive damages is appropriate.

9

VII. REQUEST FOR RELIEF

10

WHEREFORE, Plaintiffs request the Court enter a judgment granting relief in favor of

11 Plaintiffs and against defendant RISA and entering orders granting the following relief:

12

1. An award of actual damages;

13

2. Alternatively, an award of nominal damages;

14

3. An award of punitive damages pursuant to the federal Fair Housing Act;

15

4. An order or orders granting appropriate declaratory and injunctive relief,

16 including the declaratory and injunctive relief described in Section V and otherwise herein;

17

5. An award of Plaintiffs’ attorneys’ fees and costs incurred herein, based on all

18 legal bases for such recovery stated herein and as otherwise recoverable under applicable law;

19 and

20

6. All other relief the Court deems just and appropriate.

21

22

23

24

25

26

27
PLAINTIFFS’ THIRD AMENDED COMPLAINT FOR VIOLATION OF FEDERAL FAIR HOUSING ACT AND OTHER CLAIMS - 17 No. 3:09-cv-05409-BHS
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Case 3:09-cv-05409-BHS Document 169 Filed 11/02/12 Page 18 of 19

1

DATED this 2nd day of November, 2012.

2

LANE POWELL PC

3

4

By s/ Joseph E. Lynam

By s/ Abraham K. Lorber

5

Joseph E. Lynam, WSBA No. 12728

Abraham K. Lorber, WSBA No. 40668 6

Lane Powell PC

7

1420 Fifth Avenue, Suite 4100

Seattle, Washington 98101-2338

8

Telephone: (206) 223-7000

Facsimile: (206) 223-7107

9

Email: lynamj@lanepowell.com

Email: lorbera@lanepowell.com 10

Attorneys for Plaintiffs 11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

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PLAINTIFFS’ THIRD AMENDED COMPLAINT FOR VIOLATION OF FEDERAL FAIR HOUSING ACT AND OTHER CLAIMS - 18 No. 3:09-cv-05409-BHS
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206.223.7000 FAX: 206.223.7107

Case 3:09-cv-05409-BHS Document 169 Filed 11/02/12 Page 19 of 19

1

CERTIFICATE OF SERVICE

2

I certify that on the date indicated below, I caused the foregoing document to be filed

3 with the Clerk of the Court via the CM/ECF system. Pursuant to their ECF agreement, the

4 Clerk will send notice of this filing to the following persons via e-mail:

5

Steven Goldstein

6

Richard Ross

Betts, Patterson & Mines, P.S.

7

One Convention Place, Suite 1400

701 Pike St.

8

Seattle, WA 98101

sgoldstein@bpmlaw.com

9

rross@bpmlaw.com

10

I declare under penalty of perjury and the laws of the United States that the foregoing is

11 true and correct to the best of my knowledge.

12

SIGNED November 2, 2012 at Seattle, Washington.

13

14

s/ Joseph E. Lynam

Joseph E. Lynam, WSBA No. 12728

15

Lane Powell PC

1420 Fifth Avenue, Suite 4100

16

Seattle, Washington 98101-2338

Telephone: (206) 223-7000

17

Facsimile: (206) 223-7107

Email: lynamj@lanepowell.com 18

19

20

21

22

23

24

25

26

27
PLAINTIFFS’ THIRD AMENDED COMPLAINT FOR VIOLATION OF FEDERAL FAIR HOUSING ACT AND OTHER CLAIMS - 19 No. 3:09-cv-05409-BHS
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LANE POWELL PC 1420 FIFTH AVENUE, SUITE 4100 SEATTLE, WASHINGTON 98101-2338
206.223.7000 FAX: 206.223.7107

 
 1

2

3

4

5

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

6

AT TACOMA

7 RAYMOND T. BALVAGE, et al.,

8

Plaintiffs,

9 v.

10 RYDERWOOD IMPROVEMENT AND SERVICE ASSOCIATION, INC.,
11 Defendant.
12

CASE NO. C09-5409BHS
ORDER ON PARTIES’ MOTIONS FOR SUMMARY JUDGMENT

13

This matter comes before the Court on Plaintiffs’ second motion for partial

14 summary judgment (Dkt. 128) and Defendant Ryderwood Improvement and Service

15 Association, Inc.’s (“RISA”) motion for summary judgment regarding 2007 survey (Dkt.

16 133). The Court has considered the pleadings filed in support of and in opposition to the

17 motions and the remainder of the file and hereby denies the motions for the reasons stated

18 herein.

19

I. PROCEDURAL AND FACTUAL BACKGROUND

20

For a more complete factual background, see the Court’s order issued June 4,

21 2010 (Dkt. 42 at 2-5) and the Ninth Circuit Court of Appeals opinion issued April 27,

22 2011 (Dkt. 108).

ORDER - 1

1

On July 8, 2009, Plaintiffs Raymond and Deborah Balvage and Charles and Susan

2 Weaver, individually and on behalf of their marital communities and on behalf of a class

3 of similarly situated individuals (collectively, “Plaintiffs”), filed a complaint against

4 RISA. Dkt. 1. On November 10, 2009, Plaintiffs filed an amended complaint. Dkt. 11.

5 On June 2, 2010, Plaintiffs filed their second amended complaint. Dkt. 41. In their

6 second amended complaint, Plaintiffs allege that RISA violated the Federal Fair Housing

7 Act (“FHA”), 42 U.S.C. § 3604(c), et seq., by engaging in illegal housing discrimination

8 on the basis of familial status, and seek declaratory and injunctive relief. Id. at 12-16.

9

On June 4, 2010, the Court granted in part Plaintiffs’ motion for partial summary

10 judgment concluding that, based on the HUD Memo, RISA could not “claim the HOPA

11 exemption because it continued to discriminate while attempting to comply with the

12 verification requirements.” Dkt. 42 at 12-13. On August 11, 2010, the Court granted

13 Plaintiffs’ motion to issue a preliminary injunction ordering RISA to, among other things,

14 remove all age restrictions from its bylaws, remove all signage that stated its 55 and older

15 restrictive covenants and inform residents and local real estate agents that the Court had

16 ordered RISA to immediately cease enforcement of its age restrictions. Dkt. 75. On

17 September 1, 2010, the Court granted RISA’s motion for a discretionary appeal under 28

18 U.S.C. § 1292(b), concluding that the questions presented were controlling issues of law

19 and that there were substantial grounds for differences of opinion. Dkt. 92. The Court

20 stayed the action, with the exception of RISA’s pending motion for partial summary

21 judgment, and certified the action to the Ninth Circuit Court of Appeals. Id. On

22

ORDER - 2

1 September 21, 2010, the Court granted RISA’s motion for partial summary judgment

2 concluding that RISA’s bylaws are enforceable as covenants. Dkt. 100.

3

On April 27, 2011, the Ninth Circuit issued its opinion on RISA’s appeal reversing

4 the Court’s interpretation of the HUD Memo, holding that:

5

a residential community that has continuously operated as a retirement

community for persons age 55 or older can qualify for the housing for older

6

persons exemption from the Fair Housing Act's prohibition on familial

status discrimination by establishing that it currently satisfies the

7

exemption's three statutory and regulatory criteria at the time of the alleged

violation, even if the community enforced age restrictions when it first

8

achieved compliance with the exemption's age verification requirement.

9 Balvage v. Ryderwood Improvement and Service Ass’n, Inc., 642 F.3d 765, 768-69 (9th

10 Cir. 2011). Further, the Ninth Circuit held that

11

[t]he [district] court properly concluded that RISA did not qualify for the

HOPA exemption between May 2000 and September 2007, when RISA

12

completed its first HOPA verification survey, because during that time

RISA did not verify by reliable surveys and affidavits—or through other

13

adequate means—that at least 80 percent of its occupied units were

occupied by at least one person who was 55 years of age or older.

14

Id. at 776 (citing 42 U.S.C. § 3607(b)(2)(C)(iii)). Accordingly, the Ninth Circuit

15

remanded the action to this Court to address the parties’ dispute as to “whether RISA’s

16

September 2007 survey satisfies the statutory and regulatory criteria.” Id. at 780.

17

On April 12, 2012, Plaintiffs filed their second motion for partial summary

18

judgment. Dkt. 128. On April 30, 2012, RISA responded (Dkt. 136) and on May 4,

19

2012, Plaintiffs replied (Dkt. 142). Also on April 12, 2012, RISA filed its motion for

20

summary judgment regarding the 2007 survey. Dkt. 133. On April 30, 2012, Plaintiffs

21

responded to RISA’s motion (Dkt. 139) and on May 4, 2012, RISA replied (Dkt. 143).

22

ORDER - 3

1

II. DISCUSSION

2 A. Summary Judgment Standard

3

Summary judgment is proper only if the pleadings, the discovery and disclosure

4 materials on file, and any affidavits show that there is no genuine issue as to any material

5 fact and that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c).

6 The moving party is entitled to judgment as a matter of law when the nonmoving party

7 fails to make a sufficient showing on an essential element of a claim in the case on which

8 the nonmoving party has the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317,

9 323 (1986). There is no genuine issue of fact for trial where the record, taken as a whole,

10 could not lead a rational trier of fact to find for the nonmoving party. Matsushita Elec.

11 Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (nonmoving party must

12 present specific, significant probative evidence, not simply “some metaphysical doubt”).

13 See also Fed. R. Civ. P. 56(e). Conversely, a genuine dispute over a material fact exists

14 if there is sufficient evidence supporting the claimed factual dispute, requiring a judge or

15 jury to resolve the differing versions of the truth. Anderson v. Liberty Lobby, Inc., 477

16 U.S. 242, 253 (1986); T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d

17 626, 630 (9th Cir. 1987).

18

The determination of the existence of a material fact is often a close question. The

19 Court must consider the substantive evidentiary burden that the nonmoving party must

20 meet at trial – e.g., a preponderance of the evidence in most civil cases. Anderson, 477

21 U.S. at 254; T.W. Elec. Serv., Inc., 809 F.2d at 630. The Court must resolve any factual

22 issues of controversy in favor of the nonmoving party only when the facts specifically

ORDER - 4

1 attested by that party contradict facts specifically attested by the moving party. The

2 nonmoving party may not merely state that it will discredit the moving party’s evidence

3 at trial, in the hopes that evidence can be developed at trial to support the claim. T.W.

4 Elec. Serv., Inc., 809 F.2d at 630 (relying on Anderson, 477 U.S. at 255). Conclusory,

5 nonspecific statements in affidavits are not sufficient, and missing facts will not be

6 presumed. Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888-89 (1990).

7 B. The Parties’ Motions for Summary Judgment Regarding the 2007 Survey

8

The main issue remaining following the Ninth Circuit’s remand of this matter is

9 whether RISA conducted a proper survey in 2007 sufficient to meet the verification

10 requirements of 42 U.S.C. § 3607(b)(2)(C)(iii) and 24 C.F.R. § 100.307. See Balvage,

11 642 F.3d at 780. Plaintiffs’ motion for partial summary judgment asks the Court to

12 conclude, as a matter of law, that RISA’s 2007 survey was inadequate under the 13 applicable statute and regulations.1 Dkt. 128. RISA’s motion for summary judgment

14 asks the Court to conclude, as a matter of law, that RISA’s 2007 survey was adequate

15 under the statute and therefore, RISA is in compliance with HOPA and this action should

16 be dismissed. Dkt. 133.

17

1. Statutory and Regulatory Requirements

18

RISA bears the burden of establishing its compliance with each of the three

19 statutory and regulatory requirements. Balvage, 642 F.3d at 777 (referencing 42 U.S.C. §

20

21

22

1 Plaintiffs also argue in their motion that RISA’s bylaws are void and therefore unenforceable, which will be addressed by the Court in a separate section of this order.

ORDER - 5

1 3607(b) and 24 C.F.R. § 100.304 – 100.307). The statute requires that RISA show the

2 following elements have been met:

3

(i) at least 80 percent of the occupied units are occupied by at least

one person who is 55 years of age or older;

4

(ii) the housing facility or community publishes and adheres to

policies and procedures that demonstrate the intent required under this

5

subparagraph;

(iii) the housing facility or community complies with rules issued by

6

the Secretary for verification of occupancy, which shall—

(I) provide for verification by reliable surveys and affidavits;

7

and

(II) include examples of the types of policies and procedures

8

relevant to a determination of compliance with the requirement of clause

(ii).

9

42 U.S.C. § 3607(b)(2)(C). Section 100.307 of the companion regulation lists the

10

requirements for verification of occupancy:

11

(a) In order for a housing facility or community to qualify as housing

12

for persons 55 years of age or older, it must be able to produce, in response

to a complaint filed under this title, verification of compliance with

13

§ 100.305 through reliable surveys and affidavits.

(b) A facility or community shall, within 180 days of the effective

14

date of this rule, develop procedures for routinely determining the

occupancy of each unit, including the identification of whether at least one

15

occupant of each unit is 55 years of age or older. Such procedures may be

part of a normal leasing or purchasing arrangement.

16

(c) The procedures described in paragraph (b) of this section must

provide for regular updates, through surveys or other means, of the initial

17

information supplied by the occupants of the housing facility or

community. Such updates must take place at least once every two years. A

18

survey may include information regarding whether any units are occupied

by persons described in paragraphs (e)(1), (e)(3), and (e)(4) of § 100.305.

19

(d) Any of the following documents are considered reliable

documentation of the age of the occupants of the housing facility or

20

community: (a) Driver’s license; (2) Birth certificate; (3) Passport; (4)

Immigration card; (5) Military identification; (6) Any other state, local,

21

national, or international official documents containing a birth date of

comparable reliability; or (7) A certification in a lease, application,

22

affidavit, ro other document signed by any member of the household age 18

ORDER - 6

1

or older asserting that at least one person in the unit is 55 years of age or

older.

2

(e) A facility or community shall consider any one of the forms of

verification identified above as adequate for verification procedures

3

required by this section.

(f) The housing facility or community must establish and maintain

4

appropriate policies to require that occupants comply with the age

verifications procedures required by this section.

5

(g) If the occupants of a particular dwelling unit refuse to comply

with the age verification procedures, the housing facility or community

6

may, if it has sufficient evidence, consider the unit to be occupied by at

least one person 55 years of age or older. Such evidence may include:

7

(1) Government records or documents, such as a local

household census;

8

(2) Prior forms or applications; or

(3) A statement from an individual who has personal

9

knowledge of the age of the occupants. The individual's statement must set

forth the basis for such knowledge and be signed under the penalty of

10

perjury.

(h) Surveys and verification procedures which comply with the

11

requirements of this section shall be admissible in administrative and

judicial proceedings for the purpose of verifying occupancy.

12

(i) A summary of occupancy surveys shall be available for

inspection upon reasonable notice and request by any person.

13

24 C.F.R. § 100.307(a)-(i).

14

2. Evidentiary Issues

15

Whether there is a material question of fact that precludes summary judgment in

16

favor of either party on the issue of the 2007 Survey centers on the Court’s treatment of

17

the declarations submitted by the parties in support of their motions for summary

18

judgment.

19

RISA, in support of its motion for summary judgment and opposition to Plaintiffs’

20

motion, relies on the declarations of Sally-Gene DeBriae (“DeBriae”) (Dkt. 24) and

21

Frances Sanders (“Sanders”) (Dkt. 138) to support its argument that the 2007 Survey was

22

ORDER - 7

1 administered in a way that satisfies the regulations and more specifically, that occupants,

2 not owners, were in fact surveyed. Plaintiffs maintain that DeBriae does not have

3 personal knowledge of how the 2007 Survey was administered and therefore her

4 declaration should be stricken. Dkt. 139 at 8. In addition, Plaintiffs argue that Sanders’s

5 recent declaration stating that RISA’s list of property owners was extensively fact-

6 checked in September 2007 is contradicted by her prior deposition when she testified that

7 it was not her job to verify the accuracy of the information and that she simply compared

8 a list she was given against documents RISA had on file. Dkt. 142 at 5-7, 11 (citing

9 Dkts. 129-1 and 138). Accordingly, Plaintiffs contend that Sanders’s most recent

10 declaration (Dkt. 138) is contradicted by her prior testimony and is therefore a sham and

11 should be disregarded by the Court. Dkt. 142 at 6-7.

12

Plaintiffs, in support of their motion for partial summary judgment, submitted the

13 declarations of Joyce Adams (“Adams”) (Dkt. 130), Joyce Fischer (“Fischer”) (Dkt. 131),

14 and Claudia Drake (“Drake”) (Dkt. 132), to support their argument that the 2007 Survey

15 was administered in a way that does not satisfy the statutory and regulatory requirements.

16 Dkt. 128. RISA maintains that Adams’s and Fischer’s declarations contradict their

17 previous deposition testimony and that Drake’s declaration contradicts a sworn affidavit

18 she executed in 2007, as well as two additional documents. Dkt. 136 at 3-8.

19

Based on the arguments made by the parties, the Court must decide whether any of

20 the evidence described above is not supported by personal knowledge of the facts

21 testified to or contradicted by previous testimony to the extent that such evidence should

22 be considered inadmissible for purposes of summary judgment.

ORDER - 8

1

The Court makes the following evidentiary rulings with respect to the various

2 declarations submitted by the parties.2

3

a. Answers to Plaintiffs’ Third Set of Interrogatories

4

Plaintiffs argue that the portions of RISA’s motion for summary judgment that

5 rely on RISA’s answers to Plaintiffs’ third set of interrogatories (Dkt. 135-6), which were

6 verified by DeBriae, should be stricken because DeBriae lacked any personal knowledge

7 of the 2007 Survey. Dkt. 139 at 8-9. Specifically, Plaintiffs ask the Court to strike the

8 following pages and lines of RISA’s motion: 8:13-15, 9:3-4, 11:2-3, 14:2-8, and 16:2-5.

9

First, the Court concludes that the lines on pages 14 and 16 need not be stricken

10 because they are supported by the declaration of Sanders (see Dkt. 133 at 14:2-8 & 16:2-

11 5 (citing Dkt. 138)). However, the Court concludes that Plaintiffs are entitled to have the

12 requested lines on pages 8, 9, and 11 stricken because RISA has failed to show that

13 DeBriae possessed any personal knowledge of the 2007 Survey. The Court notes that the

14 lines on these three pages that will be stricken are general statements introducing the

15 2007 Survey and are not critical to the Court’s analysis of RISA’s administration of the

16 survey.

17

b. Declarations Contradicted by Prior Testimony

18

The Ninth Circuit has held that “a party cannot create an issue of fact by an

19 affidavit contradicting his prior deposition testimony.” Kennedy v. Allied Mutual Ins.

20

21

2 The Court notes that, although it has concluded that the parties’ declarations are not a

22

sham and will be considered by the Court, the parties may address any inconsistencies in witnesses’ testimony on cross-examination at trial.

ORDER - 9

1 Co., 952 F.2d 262, 266 (9th Cir. 1991). However, the “rule does not automatically

2 dispose of every case in which a contradictory affidavit is introduced to explain portions

3 of earlier deposition testimony.” Id. at 266-67. Rather, the district court should be

4 concerned with whether the “‘sham’ testimony flatly contradicts earlier testimony in an

5 attempt to ‘create’ an issue of fact and avoid summary judgment.” Id. at 267.

6 Accordingly, “the district court must make a factual determination that the contradiction

7 was actually a ‘sham’” before disregarding the affidavit or declaration. Id.

8

i. Sanders’s Declaration

9

RISA submitted the declaration of Sanders (Dkt. 138) in support of its motion for

10 summary judgment. In their reply to RISA’s response to their motion for partial

11 summary judgment, Plaintiffs argue that “revised” testimony contained in Sanders’s

12 declaration is a sham as it is contradicted by her prior deposition testimony and should be

13 disregarded by the Court. Dkt. 142 at 6-7. Specifically, Plaintiffs contend that Sanders

14 testified during her deposition that it was not her job to make sure that the information

15 regarding names, addresses, and phone numbers on a list she was given were accurate.

16 Dkt. 142 at 6 (citing Dkt. 129-1 at 14). However, in her most recent declaration, Sanders

17 states that RISA’s list of property owners (attached as Exhibit 2 to her declaration) was

18 extensively fact-checked in September 2007. Dkt. 138 at 4.

19

As an initial matter, the Court notes that although Plaintiffs state that Sanders’s

20 “revised” testimony should be disregarded, they fail to make a proper motion to strike to

21 which RISA could respond. Regardless, the Court concludes that Plaintiffs have failed to

22

ORDER - 10

1 show that Sanders’s testimony is so contradictory as to warrant a finding that the later

2 testimony is a sham.

3

During her deposition, Sanders stated that counsel was correct when he asked if it

4 was her job to review the files in that she was “to go through all the people on the list and

5 make sure that there was stuff for them” and that counsel was correct when he stated that

6 she was not “involved in getting information that was missing, just verifying the

7 information was already there.” Dkt. 129-1 at 12. The “list” that was discussed during

8 Sanders’s deposition was, according to Sanders, a list of names and addresses of people

9 in Ryderwood that was kept in the RISA office and had been given to her by either Drake

10 or Fischer and had been worked on by Fischer. Id. at 13. When Sanders was asked

11 whether, in working on the 2007 Survey, it was part of her responsibility to make sure

12 that “the information on the survey about names and addresses and phone numbers” were

13 accurate, she testified that it was not. Id. at 14. She stated that she did not know when

14 the list of names, addresses, and phone numbers was created but that “[i]t was updated on

15 a regular basis” and that she did not know who updated it after DeBraie was no longer in

16 the office. Dkt. 129-1 at 14. Counsel then asked Sanders if it was her “job to go through

17 and make sure . . . that RISA had age verification information for all of the persons on

18 Exhibit 2,” to which she said yes, and when asked where she went to look for that

19 information she stated “[i]n the HOPA files that had been established previously.” Id. at

20 15.

21

In her declaration, Sanders states that

22

ORDER - 11

1

[t]he Survey started from a template provided by the RISA Board to

me labeled “HOPA SURVEY 2007.” This document is the same as what is

2

appended here at Exhibit B but did not originally include[] the handwritten

notes, which are mine. Those handwritten notes were added by me during

3

the course of completing the age verification survey and reflect my

findings.

4

At the time, I was advised by Ms. Drake that this template document

was based on the survey results from 2006 which had been updated by

5

Joyce Fis[c]her through June or July, 2007 to reflect new residents who

moved to the community after the 2006 survey was completed. My basis

6

for this understanding was two-fold: First, Ms. Drake informed me that

Ms. Fischer updated the resident information in June or July of 2007.

7

Second, Ms. Drake stated that Ms. Fischer updated the resident information

in an email she sent to Frank Randolph, who was RISA’s attorney at the

8

time.

9 Dkt. 138 at 3 (emphasis in original). Sanders goes on to say that in conducting the 2007

10 Survey, she “compared RISA’s HOPA designated files against the template survey

11 document and found that the files were very up-to-date. Where discrepancies were found

12 I noted them on the survey.” Next, she states that she

13

reviewed a variety of community records to determine if the template was

accurate. This includes, but is not limited, to: (i) resident information saved

14

in RISA’s property files from new residents during the year; (ii) the most

recent version of the Ryderwood residents telephone directory, which lists

15

resident names only, not owners; (iii) information from Board members;

(iv) information from other residents; (v) updated resident names provided

16

to me by members of the “sew-and-sew” club (a Ryderwood volunteer

organization that collects names and phone numbers from current

17

residents); (vi) RISA’s property index cards showing past and present

residents indexed by street address; (vii) information provided by members

18

of the RISA “welcome wagon”; and (viii) RISA’s computer files.

19 Id. at 4.

20

While some of Sanders’s statements from her deposition, when taken by

21 themselves, may look contradictory to certain statements in her declaration, her testimony

22 as a whole is not so inconsistent that the Court could find her declaration to be a sham.

ORDER - 12

1 Rather, the declaration appears to clarify exactly what Sanders did in reviewing

2 information after receiving the “template” from Drake or Fischer. Whether or not she

3 understood it to be her “responsibility” to ensure that the existing information was

4 accurate, when looking at what Sanders did in reviewing the information and updating

5 the template, it is clear that she was at least attempting to provide accurate updates to the

6 template. Accordingly, the Court concludes that Plaintiffs have failed to show that

7 Sanders’s declaration is a sham and therefore the Court will consider the declaration as

8 evidence in deciding the motions for summary judgment.

9

ii. Fischer’s Declaration

10

Plaintiffs submitted the declaration of Fischer in support of their motion for

11 summary judgment. Dkt. 131. In its response to the motion, RISA argues that Fischer’s

12 declaration is a sham in that it contradicts her prior deposition testimony (Dkt. 137-1) and

13 should be disregarded by the Court. Dkt. 136 at 3-6, 19-20.

14

Fischer states in her declaration that “[a]t no time did I make any effort to verify

15 that all the data contained on the List was correct or that it was a complete list of all the

16 property owners in Ryderwood.” Dkt. 131 at 2. RISA argues that Fischer’s deposition

17 testimony contradicts the declaration in that she describes the efforts she took to gather

18 information about the residents in Ryderwood including walking the streets and knocking

19 on doors to obtain identifications, making copies of driver’s licenses when people would

20 come to the office to pay their dues, and creating property files for each home. Dkt. 136

21 at 19-20; see Dkt. 137-1. RISA also contends that Fischer’s deposition testimony

22 contradicts her declaration because during the deposition she was asked by counsel if she

ORDER - 13

1 felt that she had completed the 2006 survey and she answered in the affirmative. Dkt.

2 136 at 19.

3

The Court concludes that RISA has failed to show that Fischer’s declaration is a

4 sham. Fischer states in her declaration that she did not make “any effort to verify that all

5 the data contained on the List was correct or that it was a complete list of all the property

6 owners in Ryderwood.” Dkt. 131 at 2 (emphasis added). This statement does not

7 contradict her deposition testimony in that it appears to the Court that she is clarifying

8 that she did not attempt to verify that the existing data that was on the list given to her

9 was necessarily accurate. In addition, while she may have believed that her efforts in

10 conducting the survey were complete, this is not necessarily contradictory to her

11 statement that she was not verifying that the list they compiled was a “complete list of all

12 the property owners in Ryderwood.” Id. Therefore, the Court will not disregard

13 Fischer’s declaration in deciding the motions for summary judgment.

14

iii. Adams’s Declaration

15

RISA argues, as it did with Fischer, that Adams’s declaration (Dkt. 131) submitted

16 by Plaintiffs in support of their motion for summary judgment is a sham because it

17 contradicts her prior deposition testimony (Dkt. 137-4) and should be disregarded by the

18 Court. Dkt. 136 at 6-7, 20.

19

In her declaration, Adams states that the information she “inserted into the List

20 came from miscellaneous sources, such as post-it notes, ledger cards, and a rolodex.

21 There was no effort made at that time by me or anyone else at TISA to verify that all

22 these sources and notes were correct.” Dkt. 130 at 2. RISA contends that this statement

ORDER - 14

1 contradicts her deposition testimony that Fischer and other volunteers were knocking on

2 doors to get identifications and that she made copies of identifications. Dkt. 136 at 6, 20.

3

The Court concludes that RISA has failed to show that Adams’s declaration

4 contradicts her previous testimony. Rather, Adams, like Fischer, appears to state in her

5 declaration that she and the other volunteers were not verifying the accuracy of

6 information that was already on the “list” but were adding information to that list by

7 gathering identifications and other efforts. Accordingly, the Court will not disregard

8 Adams’s declaration in deciding the motions for summary judgment.

9

iv. Drake’s Declaration

10

Unlike the declarants discussed above, Drake is not a party to this action and

11 therefore the “sham” declaration rule established in Kennedy does not necessarily apply.

12 However, RISA argues that in United States v. Southern California Edison Co., 413 F.

13 Supp. 2d 1101, 1113 (E.D. Cal. 2006), the court applies the sham declaration rule to

14 experts involved in the case. Because the Court concludes, as discussed below, that

15 Drake’s declaration is not a sham, the Court need not actually decide whether the sham

16 rule applies to non-party, non-expert witnesses such as Drake.

17

RISA contends that Drake’s declaration is a sham and should be disregarded

18 because her statement that RISA surveyed owners is contradicted by “her previously

19 sworn affidavit that RISA surveyed residents.” Dkt. 136 at 21. Plaintiffs maintain that,

20 to the extent Drake’s declaration contradicts previous statements she made, such

21 contradiction “is a statement based on reflection, a correction based on Ms. Drake’s

22 having considered her position over time.” Dkt. 142 at 8.

ORDER - 15

1

The Court concludes that, even if it considers Drake, a non-party witness, and her

2 previous statements, which are not deposition testimony, to be subject to the sham rule,

3 her declaration is not a sham. Drake states in her declaration that

4

[a]t the time we completed the Survey, it was my understanding that RISA

needed only to verify the “owners” of the various residences. Accordingly,

5

I gave direction to the Board that we look through RISA’s files in an

attempt to verify that each “owner” on the list was over the age of 55. At

6

the time, I did not want to invade any owner’s privacy by contacting them

to require proof of age, especially since I thought the owner’s list was

7

sufficient. Looking back, I realize that we should have been trying to

verify the ages of the “occupants,” not the “owners.” Accordingly, the

8

2007 Survey is a Survey of the age of the owners of certain residences and

not the age of the actual occupants of those residences.

9

Dkt. 132 at 2. Although these statements contradict certain aspects of the affidavit signed

10

by Drake (Dkt. 135-3 at 2) and Drake’s email to RISA’s former counsel (Dkt. 138-1), she

11

at least partially explains such contradictions in that what she understood to be her duty

12

in conducting the survey in 2007 is different than her current understanding of what she

13

was supposed to be doing. Dkt. 132 at 2. The fact that she used the term “occupants”

14

rather than “owners” in her email to RISA’s former counsel and the fact that Sanders’s

15

memo to Drake states that there were vacancies, indicating that they were aware of who

16

was actually occupying the homes, does not make Drake’s statement that she understood

17

the survey to be of owners, rather than residents, a sham, as the terms residents,

18

occupants, and owners appear to be used somewhat interchangeably, although the

19

meaning of the terms is now important. Rather, the Court can consider the evidence

20

presented by both parties, including Drake’s understanding of what RISA did, as well as

21

Sanders’s recollection of such events, in deciding the parties’ motions for summary

22

ORDER - 16

1 judgment. Accordingly, the Court concludes that Drake’s declaration is not a sham and

2 will be considered by the Court.

3

3. Court’s Conclusions

4

Because the Court concludes, as discussed above, that the declarations submitted

5 by Plaintiffs and RISA will be considered by the Court, the Court also concludes that

6 there remain genuine issues of material fact regarding the 2007 Survey that preclude a

7 ruling on summary judgment in either party’s favor. For example, the parties presented

8 conflicting evidence regarding whether the 2007 Survey was conducted in a way that

9 surveyed owners, according to Plaintiffs, or occupants, according to RISA. In addition,

10 the parties presented conflicting evidence regarding whether the information previously

11 held by RISA was checked for its accuracy before being incorporated into the 2007

12 Survey and to what extent such information was used to prepare the 2007 Survey.

13 Accordingly, the Court concludes that the parties’ motions for summary judgment are

14 denied.

15 C. Enforcement of RISA’s Bylaws

16

In their motion for summary judgment, Plaintiffs argue that the Court need not

17 reach the issue regarding the validity of the 2007 Survey because RISA cannot enforce

18 age restrictions based on its bylaws as such restrictions are void under Washington law.

19 Dkt. 128 at 9-11. RISA contends that Washington law requires a party to file an in rem

20 proceeding to strike void provisions from public record using the process laid out in

21 RCW § 49.60.227 and that, because such an action was never filed and RISA’s bylaws

22 were not stricken, the bylaws are currently enforceable, assuming RISA is otherwise

ORDER - 17

1 compliant with HOPA. Dkt. 136 at 23-24. Plaintiffs maintain that an action need not be

2 commenced under RCW § 49.60.227 in order for RISA’s bylaws to be considered void

3 and therefore unenforceable under RCW § 49.60.224. Dkt. 142 at 1-2.

4

RCW 49.60.224 provides, in pertinent part, that “[e]very provision in a written

5 instrument relating to real property which purports to forbid or restrict the conveyance,

6 encumbrance, occupancy, or lease thereof to . . . families with children status . . . is void.”

7 In addition, RCW 49.60.227 states:

8

If a written instrument contains a provision that is void by reason of

RCW 49.60.224, the owner, occupant, or tenant of the property which is

9

subject to the provision or the homeowners' association board may cause

the provision to be stricken from the public records by bringing an action in

10

the superior court in the county in which the property is located. The action

shall be an in rem, declaratory judgment action whose title shall be the

11

description of the property. The necessary party to the action shall be the

owner, occupant, or tenant of the property or any portion thereof. The

12

person bringing the action shall pay a fee set under RCW 36.18.012.

If the court finds that any provisions of the written instrument are

13

void under RCW 49.60.224, it shall enter an order striking the void

provisions from the public records and eliminating the void provisions from

14

the title or lease of the property described in the complaint.

15

Plaintiffs argue that RISA’s bylaws are void under RCW 49.60.224 and are

16 therefore unenforceable because RISA was not compliant with HOPA between 2000 and

17 2007, regardless of the fact that no party brought a suit under RCW 49.60.227 to have the

18 provision stricken from public record. The parties have failed to cite to any case or

19 statutory authority that explains how the Court must deal with a provision that was

20 presumably void at one time under § 49.60.224, but is arguably no longer void and was

21 never stricken from public record under § 49.60.227. However, the Court concludes that

22 the only logical reading of § 49.60.224, as it applies to this set of facts, is that a provision

ORDER - 18

1 must be found “void” under that statute, which typically occurs in a proceeding under §

2 49.60.227 in order to be unenforceable. Here, a proceeding was never instituted and

3 therefore, a finding was never made that RISA’s bylaws were void under

§

4 49.60.224. Where, as here, the Court is looking at a provision that may or may not be

5 currently enforceable, as opposed to a provision that restricts occupancy on the basis of

6 race, for example, which clearly would be unenforceable, and the provision was not

7 stricken from the public record at a time when it was void under the statute (i.e. when

8 RISA concededly was not compliant with HOPA), whether the provision is currently

9 enforceable remains at issue. Accordingly, the Court concludes that the issue of whether

10 RISA’s bylaws are void under RCW 49.60.224, and therefore unenforceable, remains at

11 issue and depends on RISA’s ability to show compliance with HOPA. As the Court

12 discussed above, triable issues of fact remain for a jury to decide in order for the Court to

13 make a legal determination regarding RISA’s compliance with HOPA and thus, the

14 enforceability of its bylaws.

15

III. ORDER

16

Therefore, it is hereby ORDERED that Plaintiffs’ motion for partial summary

17 judgment (Dkt. 128) and RISA’s motion for summary judgment regarding 2007 Survey

18 (Dkt. 133) are DENIED.

19

Dated this 20th day of July, 2012.

20 21

A

22

BENJAMIN H. SETTLE United States District Judge

ORDER - 19

 
 Case 3:09-cv-05409-BHS Document 186 Filed 04/18/13 Page 1 of 25

1

2 Steve Goldstein Richard D. Ross
3 BETTS, PATTERSON & MINES, P.S. One Convention Place, Suite 1400
4 701 Pike Street Seattle, Washington 98101-3927
5 (206) 292-9988

Honorable Benjamin H. Settle

6 Attorneys for Defendant

7

8

9

UNITED STATES DISTRICT COURT

10

FOR THE WESTERN DISTRICT OF WASHINGTON

AT TACOMA

11

12 RAYMOND T. BALVAGE and DEBORAH
13 A. BALVAGE, husband and wife, et. al.,

14

Plaintiffs,

15

vs.

16 RYDERWOOD IMPROVEMENT AND SERVICE ASSOCIATION, INC., a
17 Washington non-profit corporation,

18

Defendant.

NO. 3:09-cv-05409-BHS
DEFENDANT RYDERWOOD IMPROVEMENT AND SERVICE ASSOCIATION’S MOTION FOR SUMMARY JUDGMENT RE: RETALIATION CLAIMS
NOTED FOR CONSIDERATION: MAY 10, 2013

19 ORAL ARGUMENT REQUESTED
20

21

22

23

24

25

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT RE: RETALIATION CLAIMS
607602.1/041813 1854/61840140

-1-

Betts Patterson Mines
One Convention Place Suite 1400 701 Pike Street Seattle, Washington 98101-3927
(206) 292-9988

Case 3:09-cv-05409-BHS Document 186 Filed 04/18/13 Page 2 of 25

1

I. INTRODUCTION AND RELIEF REQUESTED

2

Plaintiffs’ Third Amended Complaint added claims of retaliation under 42 U.S.C. §

3 3617. In response to discovery requests propounded by RISA as to these claims, the Plaintiffs

4 describe hundreds of alleged acts of retaliation committed by individual residents of

5 Ryderwood. None suffice to make out a prima face case of retaliation by RISA. Consequently,

6 RISA moves to dismiss Plaintiffs’ cause of action alleging retaliation.

7

II. FACTS1

8

A. Procedural History2

9

On October 26, 2012, the Court granted Plaintiffs’ Motion to Amend the Second

10 Amended Complaint to add an action for retaliation.3 On November 2, 2013, Plaintiffs filed

11 and served their Third Amended Complaint, which alleges:

12

RISA and its representatives and members have wrongfully

threatened, intimidated, inferred with and harassed Plaintiffs’ in

13

the exercise of their Fair Housing Act rights.4

14

And further alleges:

15

RISA has caused others to wrongfully threaten, intimidate,

16

interfere with and harass Plaintiffs and has failed to take appropriate actions to prevent its members from engaging in such

17

actions.5

18

19

1 For a more complete factual background, see the Court’s order issued June 4, 2010

20 (Dkt. 42 at 2-5) and the Ninth Circuit Court of Appeals opinion issued April 27, 2011 (Dkt.

108).

21

2 As this Court noted in its July 20, 2012 Order on Summary Judgments “[t]he main

22

issue remaining following the Ninth Circuit’s remand of this matter is whether RISA conducted a proper survey in 2007 sufficient to meet the verification requirements of 42 U.S.C.

23 § 3607(b)(2)(C)(iii).2 The scope of this case changed dramatically, however, after this Court

granted Plaintiffs’ Motion to Amend to assert retaliation claims on October 26, 2012.

24

3 Dkt. 164.

4 Dkt. 169 ¶ 66.

25

5 Id.

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT RE: RETALIATION CLAIMS
607602.1/041813 1854/61840140

-2-

Betts Patterson Mines
One Convention Place Suite 1400 701 Pike Street Seattle, Washington 98101-3927
(206) 292-9988

Case 3:09-cv-05409-BHS Document 186 Filed 04/18/13 Page 3 of 25

1

B. Alleged Acts of Retaliation.

2

On November 12, 2012, RISA served each of the 47 Plaintiffs with discovery requests

3 specifically directed toward their alleged retaliation claims. This includes the specific acts of

4 retaliation claimed (Interrogatory No. 3), all facts showing RISA is responsible for the acts

5 claimed (Interrogatory No. 4), and all damages sustained as a result of these alleged acts of

6 retaliation (Interrogatories No. 8 and No. 10). 45 of the 47 Plaintiffs responded to RISA’s 7 discovery requests.6

8

The 45 Plaintiffs who responded to those requests collectively allege hundreds of

9 distinct acts of retaliation.7 RISA has reviewed each and every one of those alleged acts and, as

10 further described in this Motion, RISA denies that any meet the requirements of 42 U.S.C. §

11 3617. Because Plaintiffs allege hundreds of individual retaliatory acts, Defendant does not

12 attempt to address each individually in this motion for summary judgment. To allow the Court

13 to meaningfully evaluate Plaintiffs’ claims (and RISA’s defenses to these claims), RISA has

14 grouped the allegations into five discrete categories and provided representative examples of

15 the types of allegations made:

16

1. Alleged Retaliatory Acts by Neighbors or Third Parties. 8

17

This category contains acts allegedly perpetrated by persons who are not RISA officers

18 or board members. Examples of this type of allegation include:

19

 Meredith Zwiefelhofer member/owner of RISA during the

pendency of this case authored and posted an article in the 20

21

22

6 Declaration of Alicia B. Pierce in Support of RISA’s Motion for Summary Judgment

23 Re: Retaliatory Acts (hereafter “Pierce Dec.”) ¶ 3. Plaintiffs’ answers and responses to these

discovery requests are appended to the Pierce Declaration as Exhibits 1 through 29. See Pierce

24 Dec. ¶ 5 for an index of all discovery responses.

7 Pierce Dec. ¶ 6.

25

8 Id. ¶ 10.

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT RE: RETALIATION CLAIMS
607602.1/041813 1854/61840140

-3-

Betts Patterson Mines
One Convention Place Suite 1400 701 Pike Street Seattle, Washington 98101-3927
(206) 292-9988

Case 3:09-cv-05409-BHS Document 186 Filed 04/18/13 Page 4 of 25

1

Viewpointtdn.com/news/opinion on September 3, 2010 that

intimidated me.

2

3

 Faye Hoxit board member/owner of RISA during the pendency of this case allowed her dog to several times threaten me and interfere

4

with my leaving the Ryderwood post office.

5

 William Bowlby, Pastor of Ryderwood Community Church, and

RISA members/owners during the pendency of this case have

6

discriminated and interfered with our Freedom of Religion by

7

calling the residents involved in this case “Parasites!” during his pulpit speeches, making it clear we are not welcome to attend

8

church services, preventing us from attending church in this

community.

9

10

 Orv Renfer Member/Owner Ryderwood Improvement & Service Association Jan. 2010 threatened me and call[ed] me a liar in Court

11

Lobby.

12

2. Alleged Retaliatory Acts by Individual RISA Officers

Acting Outside their Authority.9

13

Examples of this type of allegation include: 14

 Ronald Mueller board member/owner of RISA during the

15

pendency of this case in early summer of 2011 drove past me on

16

Morse Street suddenly made a U-turn, swerved off the road with the intention to hit me, narrowly avoiding me.

17

 Ronald Mueller member/owner RISA during the pendency of this

18

case intimidated and threatened me at the Ryderwood post office

when we were talking about him coming at me with his car. 19

20

 Sally Gene DeBriae board member/owner of RISA during the

pendency of this case threatened and intimidated me during my

21

deposition.

22

23

24

25

9 Id. ¶ 9.

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT RE: RETALIATION CLAIMS
607602.1/041813 1854/61840140

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Betts Patterson Mines
One Convention Place Suite 1400 701 Pike Street Seattle, Washington 98101-3927
(206) 292-9988

Case 3:09-cv-05409-BHS Document 186 Filed 04/18/13 Page 5 of 25

1

3. Alleged Retaliatory Acts By RISA and/or RISA Officers.10

2

Examples of this type of allegation include:

3

 Sally Gene DeBriae and other members of the RISA Board filed

improper liens on my real property without any legal authority and

4

based on claims for services and benefits which were never

5

performed or provided.

6

 RISA during the pendency of this case threatened me by sending a

letter to Community Waste & Recycling telling them to stop

7

picking up my garbage.

8

 Donald Barnes, Sally Gene DeBriae, Donald Zifka board

9

members/owners posted a flyer TO THE RESIDENTS OF

RYDERWOOD to harass and intimidate me.

10

 During the pendency of this case, RISA posted NO

11

TRESPASSING RISA MEMBERS ONLY signs denying access to

12

the common areas.

13

4. Alleged Acts That Pre-Date Commencement of this

Lawsuit.11

14

This category includes all claims that allege acts that took place prior to the date this 15

lawsuit was commenced. Examples of this type of allegation include: 16

 Donna Chase, Mary Slagle members/owners RISA prior to this

17

case signed their names to a posted flyer called HERE WE GO

18

AGAIN!!! This was intimidating and slanderous. Inferred I have been on the "dole" most of my life and I am trying to get

19

something for nothing.

20

 In May 2008 I received a threatening letter that I had children

21

under 55 living in my home and needed to contact Ryderwood Improvement and Service Association’s office. It was sent by Don

22

Barnes, President/board member/owner of Ryderwood

Improvement and Service Association.

23

24

10 Pierce Dec. ¶ 6.

25

11 Id. ¶ 11.

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1

 Prior to the pendency of this case, Ryderwood Improvement and

Service Association Board, because of the chaos they created,

2

deprived my husband and I of precious hours together, before his

3

untimely death in November of 2006.

4

 Ryderwood Improvement & Service Association prior to the

pendency of this case coerced me to have to take my grandchildren

5

out of town to catch their bus.

6

5. Miscellaneous Allegations That Fail to Specify a

7

Retaliatory Act or Identify the Alleged Perpetrator. 12

8

Examples of this type of allegation include:

9

 Unknown member/owners, RISA and members of the Ryderwood

Community Church, threatened and intimidated our freedom of

10

religion and worship.

11

 RISA member/owner unknown male, during the pendency of this

12

case, approached my 90 year old father and demanded he move his

truck. My father had pulled his truck in front of our house and the

13

unknown male (same man demanding we move our motor home)

told my father “you can NOT double park in front of this house”,

14

causing my father to be confused about what he “Could” do on our

15

property. At this point, my father began to talk about being a burden to us and began frequently talking about HATING this

16

community. His behavior changed (no longer joyful) making us

wonder what other cruelty he experienced and did not share with

17

us.

18

 Unknown members/owner of RISA interfere with our quiet

19

enjoyment of property and intimidate us as they ride past us on their bicycles.

20 The Declaration of Alicia Pierce includes all of the allegations of retaliatory acts alleged
21 by Plaintiffs in their discovery responses, and is organized according to the categories above.
22

23

24

25

12 Id. ¶ 12.

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1

C. Plaintiffs Contributed To The Derisive Atmosphere Portrayed In

Their Allegations. 2

In this dispute, Plaintiffs challenge: (a) Ryderwood’s its right to remain a 55 and older 3

community; and (b) RISA’s right to enforce its bylaws against all residents. Although RISA is 4

the Defendant in this lawsuit, the real party in interest in this dispute are the 200+ homeowners 5

and residents who are not part of this litigation – the residents. The Plaintiffs’ lawsuit 6

challenges individual residents’ longstanding beliefs about Ryderwood as well as their property 7

and financial expectations in buying homes in Ryderwood. RISA took steps to encourage the 8
amicable resolution of disputes within the community.13 Nevertheless, RISA does not dispute 9

that some residents may have reacted emotionally or inappropriately. 10

RISA does not condone these actions but, in this regard, it should be noted that the 11

Plaintiffs cannot dispute that they engaged in equally contentious actions directed toward 12

Ryderwood residents. For example, Plaintiffs have sent derisive emails to non-plaintiff 13

residents, such as Glenn Robertson, a former board member who resigned from RISA but chose 14
not to join the Plaintiffs in this litigation.14 And the Plaintiffs erected a publicly viewable 15

bulletin board upon which they post letters, notices, and comments to the Ryderwood 16

community. Among the items posted: A drawing showing a bulldozer tearing down 17

Ryderwood’s longstanding entrance sign; case law highlighting the sometimes exorbitant 18

punitive damages awarded in Fair Housing Act cases; and notices threatening financial 19

repercussions to the community, such as a sign that said: 20

The current membership of RISA will pay for RISA’s failure to

21

understand.15

22

23 13 DeBraie Dec. Exhibit D (Jan. 2008 Ryderwood Reporter).

24

14 Declaration of Richard D. Ross (“Ross Dec.”) Exhs. A-C (Emails from Weaver to

Robertson).

25

15 DeBraie Dec. Exhs. A-B.

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1

D. RISA’s Authority to Enforce Bylaws

2

Finally, the remainder of Plaintiffs’ allegations relate to their claim that RISA is not

3 authorized to enforce its bylaws. As explained in greater detail in Defendant’s Motion for

4 Partial Summary Judgment Regarding Bylaws, all properties in Ryderwood are subject to 5 RISA’s bylaws, which this Court upheld as covenants.16 The terms of those covenants state 6 that all owners “[m]ust not be less than fifty-five years of age.”17 They also restrict owners

7 from renting, leasing, or otherwise allowing anyone who is not fifty-five years of age from

8 residing in the house:

9

Must have no additional, permanent occupants of the home,

(other than the spouse), who do[es] not meet the above

10

requirements.18

11 This has been the policy of Ryderwood since 1953. As previously described, all properties are

12 subject to covenants that include a utility fee. Pertinent here is condition B-4, which states that

13 each property owner shall pay an annual fee and that an unpaid fee becomes a lien on the land:

14

B-4. The Grantee, covenants that the property conveyed under

15

this Deed shall be subject to an annual charge in such amount as will be fixed by the Grantor, its successors or assigns, not,

16

however, exceeding the pro rata share of the actual cost thereof as

to the property herein conveyed.

17

... 18

[S]uch charge shall on each such due date become a lien upon

19

the land and shall continue to be such a lien until fully paid.

20

Such charge shall be payable to the Grantor, or its successors or assigns, and shall be devoted to the maintenance of the water

21

system, sewer system, garbage disposal system, and to the

furnishing of the services in connection therewith, and any and

22

23

24

16 Dkt. 100.

17 Ross Dec. Exh. B (Ryderwood Bylaws).

25

18 Ross Dec. Exh. B p. 1.

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1

all similar services which may be deemed advantageous to the

land herein conveyed.19

2

3

Although this Court has already upheld these covenants as applicable to all properties in

4 Ryderwood, Plaintiffs continue to allege that RISA charged dues, filed liens, and otherwise

5 enforced the bylaws without authority as retaliatory acts.

6

III. QUESTION PRESENTED

7

Whether any genuine issues of material fact exist regarding Plaintiffs’ allegations that

8 RISA retaliated against them in violation of the Fair Housing Act, 42 U.S.C. § 3617.

9

IV. EVIDENCE RELIED UPON

10

This Motion is based upon the Declaration of Alicia Pierce in Support of Motion for

11 Summary Judgment, and all Exhibits thereto; the Declaration of Richard D. Ross in Support of

12 Motion for Summary Judgment, and all Exhibits thereto; the Declaration of Sally-Gene

13 DeBriae in Support of Motion for Summary Judgment, and all Exhibits thereto; the Declaration

14 of Michael Lutz in Support of Motion for Summary Judgment; Motions and Pleadings of

15 Record; and previous filings and Orders discussed herein.

16

V. ARGUMENT

17

A. Burden Shifting Analysis of Retaliation Claims

18

The Fair Housing Act makes it “unlawful to coerce, intimidate, threaten, or interfere

19 with any person in the exercise or enjoyment of, or on account of his having exercised or

20 enjoyed, or on account of his having aided or encouraged any other person in the exercise or

21 enjoyment of, any right granted or protected by” the Act. 42 U.S.C. § 3617. The U.S.

22 Department of Housing and Urban Development (“HUD”) has identified five non-exclusive

23 examples of the type of conduct prohibited under § 3617:

24

25

19 See Dkt. 78 (Exhibits A-E in Support of RISA Partial Motion for Summary Judgment

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1

(1) Coercing a person, either orally, in writing, or by other

means, to deny or limit the benefits provided that person

2

in connection with the sale or rental of a dwelling or in

3

connection with a residential real estate-related transaction because of race, color, religion, sex, handicap,

4

familial status, or national origin.

5

(2) Threatening, intimidating or interfering with persons in

their enjoyment of a dwelling because of the race, color,

6

religion, sex, handicap, familial status, or national origin

7

of such persons, or of visitors or associates of such persons.

8 (3) Threatening an employee or agent with dismissal or an

9

adverse employment action, or taking such adverse

employment action, for any effort to assist a person

10

seeking access to the sale or rental of a dwelling or

11

seeking access to any residential real estate-related transaction, because of the race, color, religion, sex,

12

handicap, familial status, or national origin of that person

or of any person associated with that person.

13

(4) Intimidating or threatening any person because that

14

person is engaging in activities designed to make other

15

persons aware of, or encouraging such other persons to exercise, rights granted or protected by this part.

16

(5) Retaliating against any person because that person has

17

made a complaint, testified, assisted, or participated in

any manner in a proceeding under the Fair Housing Act. 18

19 24 CFR § 100.400(c).
20 When examining retaliation claims, courts rely on the three-step burden shifting test
21 established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973),
22 to determine whether genuine issues of material fact exist.
23

24

25

(continued . . .) Re: Bylaws).

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1

First, the Plaintiffs must establish a prima facie case of retaliatory conduct: (1) that the

2 Plaintiffs “engaged in a protected activity; (2) the defendant subjected [them] to an adverse

3 action; and (3) a causal link exists between the protected activity and the adverse action.”

4 Walker v. City of Lakewood, 272 F.3d 1114, 1128 (9th Cir. 2001).

5

Second, if a plaintiff establishes a prima facie case, the defendant has the burden to

6 produce a legitimate non-retaliatory reason for its action. Id.

7

Third, if the defendant meets its burden of production, the burden of persuasion shifts

8 back to the plaintiff to show that the defendant’s proffered reason is not worthy of credence or

9 that the reason is mere pretext for a retaliatory action. Id.; see also Reeves v. Sanderson

10 Plumbing Prods., Inc., 530 U.S. 133, 143 (2000). If Plaintiff offers credible proof showing the

11 claimed legitimacy of the action taken is not legitimate, then a question of fact exists for the

12 trier of fact to decide.

13

RISA concedes that filing a Fair Housing Act claim is a protected activity. However,

14 Plaintiffs cannot meet their burden to establish a prima facie case on the second and third

15 elements. But even if Plaintiffs can establish a prima facie case for any given claim, RISA

16 meets its burden to show a legitimate non-retaliatory reason for such actions.

17

B. Plaintiffs Do Not Meet Their Burden to Establish a Prima Facie Case on the

Required Elements of An Adverse Action Claim.

18

19

1. Plaintiffs Fail to Show RISA Subjected Them To Any Adverse Action

20 To establish a § 3617 retaliation claim, Plaintiffs must prove RISA committed an
21 adverse action in order to coerce, intimidate or interfere with a Plaintiff’s exercise of a
22 protected right. 42 U.S.C. § 3617. An action is only adverse if it is sufficiently harmful to
23 deter a reasonable person in the plaintiff’s circumstances from engaging in the protected
24 activity. Cf. Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53, 68 (2006).
25

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1 Importantly, and clearly overlooked by Plaintiffs here, the adverse action must have been

2 committed by the Defendant. See Walker, 272 F.3d at 1128.

3

Although Plaintiffs claim that RISA “acted wrongfully and unlawfully . . . by causing or

4 allowing others to take actions, and/or in not preventing or dissuading others from taking 5 actions to retaliate against Plaintiffs[,]”20 there is no legal or factual support for the allegation

6 that RISA is liable for the actions of residents of the Ryderwood community, third parties, or

7 for the actions of RISA board members acting outside the scope of their authority.

8

a. RISA is Not Liable for the Actions of

Ryderwood Residents or Third Parties

9

10

Plaintiffs claim that RISA, as an entity, is liable for alleged acts taken by third parties.

11 This includes acts committed by (i) residents of Ryderwood; (ii) third-parties, such as the

12 community pastor, the garbage collector, and postal employees; and (iii) unidentified persons,

13 such as the Balvage Plaintiffs claim that “[u]nknown members/owner of RISA interfere[d] with 14 our quiet enjoyment of property and intimidate[d] us as they r[o]de past us on their bicycles.”21

15 Plaintiffs have presented no evidence to show that RISA is responsible for these actions. In

16 each and every allegation under these categories, the alleged wrongdoer was not an agent or

17 employee of RISA and therefore there is no basis to hold RISA responsible for these alleged

18 acts.

19

Under principles of agency law, a master is liable for the acts of a servant committed

20 within the scope or course of the servant's employment. Sung v. Mission Valley Renewable

21 Energy, LLC, CV-11-5163-RMP, 2013 WL 1193087 (E.D. Wash. Mar. 22, 2013) (citing

22 Bratton v. Calkins, 73 Wash. App. 492, 498, (1994)). Although an employer or principal in an

23 agency relationship can be vicariously liable for the acts of its employees, no such agency

24

25

20 Dkt.169 ¶ 79.

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1 relationship exists between RISA and the residents of Ryderwood. Nor is there any agency

2 based principle holding RISA responsible for the acts of non-residents.

3

In light of the large number of these allegations, RISA cannot address each claim

4 specifically. Each claim in these categories has been set forth in the Pierce Declaration, which

5 cites to the specific discovery response where each claim was made. Nevertheless, to give the

6 Court some understanding of the tenor of these claims, RISA points to the following examples.

7

Many Plaintiffs allege that a sign prohibiting SWIFFT members from entering the

8 Ryderwood café was retaliatory conduct by RISA.22 The “sign” according to Plaintiffs’ own

9 exhibits, is actually writing on a chalkboard. There is no evidence that any Board member 10 wrote the comment on that chalkboard. Indeed the Board was not even aware of it.23 Further,

11 the café is open to all Ryderwood residents and anyone could have written it. Finally, it could 12 not have been there long as no Board members even saw it.24 RISA cannot be liable for such

13 conduct.

14

Plaintiffs Bob and Diane White claim they are losing their home as a result of this

15 litigation.25 The Whites do not provide any facts showing why RISA is responsible for the loss

16 of their home. Furthermore, the Whites have admitted that they are losing their home because

17 it is being foreclosed upon but fail to note that the foreclosure was initiated by SWIFFT, the 18 group formed by the Plaintiffs to pursue the FHA claims of its members in this litigation. 26

19 According to the Complaint filed by SWIFFT, its members agreed to contribute their pro-rata

20

21

22

(continued . . .) 21 See, e.g., Pierce Dec. p. 29 & id. p. 54.

23

22 See, e.g., Pierce Dec. p. 7.

23 DeBraie Dec. ¶ 18.

24

24 DeBraie Dec. ¶ 17; Declaration of Michael Lutz, ¶ 3-4.

25 Pierce Dec. p. 37.

25

26 Ross Dec. Exh. D (White Foreclosure Complaint).

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1 share of the litigation costs and the Whites failed to pay.27 RISA cannot be liable for the acts of

2 other Plaintiffs seeking to obtain attorneys’ fees owed as a result of this litigation.

3

Plaintiffs Deborah and Ray Balvage claim that RISA damaged a bulletin board on their

4 property, but provide no evidence of who caused the damage.28 The RISA board did not

5 authorize such action and no board member took any action to damage the bulletin board.29

6 Even if the bulletin board was in fact damaged, RISA is not responsible for the conduct of an

7 unknown individual.

8

All told, all claims that RISA is responsible for the actions of third-parties (or unknown

9 parties) suffer from the same flaw – on their face the claims do not allege that the alleged

10 retaliatory action was perpetrated by RISA or taken at RISA’s direction. Although RISA’s

11 bylaws grant RISA the authority to enforce certain restrictions on homeownership and

12 community maintenance, RISA has no control over or responsibility for the words or actions of 13 its individual members. 30 There is also no legal or factual support for Plaintiffs’ argument that

14 RISA “caused” others to take actions or had a duty to “dissuade” third parties from taking 15 actions.31

16

To the extent Plaintiffs’ neighbors or third parties have taken harmful actions against

17 them, Defendant is not the proper party against whom to seek redress. All of Plaintiffs’

18 allegations of retaliatory acts that occurred after their filing of this lawsuit by Ryderwood 19 residents, third parties, and unnamed or unknown individuals should be dismissed.32

20

21

22

27 Id. ¶ 8-9. 28 Pierce Dec. p. 9 at ¶ 7 (allegation no. 31).

23

29 DeBraie Dec. ¶ 6.

30 DeBraie Dec. ¶ 4.

24

31 DeBraie Dec. ¶ 2.

32 Pierce Dec. ¶ 10, pp. 28-37 (listing allegations from Plaintiffs’ discovery responses of 25 retaliatory acts by Ryderwood residents or other third parties), ¶ 12, pp. 52-58 (listing

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1

b. RISA is Not Liable for the Actions of Board

Members Acting Outside of the Scope of

2

Their Authority

3

Under this category of claim, the Plaintiffs allege that an officer or board member of

4 RISA engaged in some act. In each instance, the Plaintiffs allege that RISA is responsible for

5 these actions solely because the act was committed by the Board Member. RISA denies each

6 and every one of these allegations and further denies that any fit the definition of a retaliatory

7 act under 42 U.S.C. § 3617. More pertinently, there is no proof that any of the alleged acts in

8 this group were taken at the direction of RISA, the defendant in this suit.

9

A corporation “acts through its officers, agents or employees and is liable for the

10 actions of such persons acting within the scope of their agency.” S.E.C. v. Jenkins, 718 F.

11 Supp. 2d 1070, 1075 (D. Ariz. 2010). The principal will not be liable for the agent’s acts

12 unless the agent is acting on the principal’s behalf. Scott v. Ross, 140 F.3d 1275, 1280 (9th Cir.

13 1998) (holding that this rule also applies to agents who are volunteers). To determine whether

14 an employee acted within the scope of employment courts ask “whether the employee was

15 engaged in the performance of duties provided for in his employment contract, was acting by

16 specific direction of his employer, or ‘whether he was engaged at the time in the furtherance of

17 the employer’s interest.’” Sung v. Mission Valley Renewable Energy, LLC, 2013 WL 1193087

18 (E.D. Wash. Mar. 22, 2013) (citing Dickinson v. Edwards, 105 Wash. 2d 457, 467 (1986)). An

19 employer can defeat a claim of vicarious liability by showing that the employee’s conduct was

20 “(1) intentional or criminal and (2) outside the scope of employment.” Id. (citing Robel v.

21 Roundup Corp., 148 Wash. 2d 35, 53 (2002)). Although this inquiry often presents a question

22 for the trier of fact, the “issue may be resolved on summary judgment when there can be only

23

24

25

(continued . . .) allegations from Plaintiffs’ discovery responses of retaliatory acts by unnamed or unknown

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1 one reasonable conclusion from the undisputed facts.” Rahman v. State, 170 Wash. 2d 810,

2 815-16 (2011) (citing Breedlove v. Stout, 104 Wash. App. 67, 70 n. 5 (2001)).

3

RISA is a non-profit corporation and its board of trustees and officers are volunteers.

4 The duties and powers of the RISA board and officers are clearly laid out in the bylaws.33 The

5 authority of RISA board members and officer to act as agents of RISA is limited to those duties

6 and powers delineated in the bylaws. While some Plaintiffs allege actions that could be within

7 the scope of a Board Members agency duties – such as filing a lien against Plaintiff properties – 8 the acts at issue under this category are not.34

9

As an example, Plaintiff Joyce Adams claims that Ronald Mueller (RISA board

10 member at the time) drove past her on Morse Street and then “swerved off the road with the 11 intention to hit” her.35 Even if this accusation were true, such intentional or criminal conduct

12 would not have been within the scope of Mr. Mueller’s authority as a member of the RISA

13 board, and therefore RISA is not liable for such conduct.

14

Plaintiff Adams also claims that Mr. Mueller “plac[ed] his hands around [her] neck and

15 shoulders and sh[ook her]” at Charles Weaver’s deposition.36 Again, RISA denies such an act

16 occurred but, even if true, such an action is clearly outside of the scope of Mr. Mueller’s

17 authority, and not done in furtherance of RISA’s interest. RISA cannot be liable for such

18 alleged conduct.

19

Once again, space prohibits RISA from addressing each and every one of these

20 allegations here but, as to each, the acts alleged in this category of claim are not within the

21

22 (continued . . .)

23 individuals). 33 Ross Dec. Exh. B p. 5-8.

24

34 Pierce Dec. ¶ 9, pp. 27-28 (listing allegations from Plaintiffs’ discovery responses of

retaliatory acts by board members acting outside the scope of their authority).

25

35 Pierce Dec. p. 27.

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1 scope of the powers and duties delineated in the bylaws Plaintiffs can offer no evidence to

2 show that such acts, if true, were done to further RISA’s interests. Therefore, RISA is not 3 liable for such acts and these claims should be dismissed.37

4

c. Statements of Third Parties and RISA Board

Members are Protected by the First

5

Amendment

6

Finally, dismissal of these categories of claims is also warranted by the First

7 Amendment. Even if the Court believes there are questions of fact regarding RISA’s

8 responsibility for the acts of individuals, § 3617 is not so broad as to restrict the First

9 Amendment rights of those individuals. The “courts have recognized that a speaker’s advocacy

10 of his views, however ‘ill-advised, uninformed, and even distasteful,’ can amount to a violation

11 of § 3617 of the FHA only in the event that the advocacy is directed to inciting or producing

12 imminent violence and is likely in fact to do so.” White v. Lee, 227 F.3d 1214, 1230 (9th Cir.

13 2000); Michigan Protection & Advocacy Serv., Inc. v. Babin, 799 F.Supp. 695, 720

14 (E.D.Mich.1992), aff'd, 18 F.3d 337 (6th Cir.1994). For example, many of the alleged

15 retaliatory acts are statements made, flyers posted, or articles written by Ryderwood residents

16 about the community or the litigation.38 Allegations regarding statements made by Pastor

17 Bowlby to his congregation also fall into this category of protected speech.39

18

Although Plaintiffs may be offended by such statements, none rise to the level of being

19 likely to incite or produce imminent violence, and therefore do not constitute adverse actions

20 under § 3617 of the FHA.

21

22

(continued . . .)

23

36 Pierce Dec. p. 27.

37 Pierce Dec. ¶ 9, pp. 27-28 (listing allegations from Plaintiffs’ discovery responses of

24 retaliatory acts by board members acting outside the scope of their authority).

38 See, e.g., Pierce Dec. pp. 28-29.

25

39 See, e.g., Pierce Dec. p. 31.

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1

2. Plaintiffs Fail to Show that Alleged Retaliatory Acts were

Motivated by Their Participation in this Lawsuit

2

3

In order to make out a prima facie § 3617 retaliation claim, Plaintiffs must be able to

4 show a causal link between the protected activity and the alleged adverse action by the

5 Defendant. See Walker, 272 F.3d at 1128. Here, Plaintiffs must show that Defendant’s alleged

6 retaliatory actions were motivated by Plaintiffs’ filing of, or participation in, this lawsuit. See

7 DuBois v. Ass'n of Apartment Owners of 2987 Kalakaua, 453 F.3d 1175, 1180 (9th Cir. 2006).

8 Plaintiffs have offered no such evidence in their responses to the discovery requests.

9

a. There Can Be No Casual Link for Alleged Retaliatory Acts Prior to the Filing of this

10

Lawsuit

11

Actions taken before Plaintiffs engaged in a protected activity cannot be motivated by

12 that activity, and therefore cannot be retaliatory under § 3617. DuBois, 453 F.3d at 1180

13 (holding that evidence of acts that predated the FHA complaint “was completely irrelevant to

14 the retaliation claim.”). Many of the retaliatory acts alleged by Plaintiffs occurred before

15 Plaintiffs filed their lawsuit, and in some cases the alleged acts occurred many years earlier.

16

For example, the Powells allege that RISA prevented a school bus from picking up their

17 grandchildren.40 RISA granted the Powells permission to have their grandchildren live with

18 them more than ten years ago, and any issues related to the school bus routes, if true, occurred 19 long before the Powells were Plaintiffs in this case.41 Another example is that a majority of

20 Plaintiffs allege that RISA included their names on a list of individuals who had “resigned”

21

22

23

24

40 Pierce Dec. p. 50.

25

41 DeBraie Dec. ¶ 13.

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1 from RISA membership.42 This list was posted prior to the lawsuit and included non2 Plaintiffs,43 and therefore could not have been motivated by Plaintiffs’ filing of this lawsuit.

3

Plaintiffs’ claims of alleged retaliatory acts that occurred prior to their filing of this

4 lawsuit should be dismissed.44

5

b. Plaintiffs Fail to Show that RISA Practiced

Selective Enforcement of Its Bylaws or that

6

RISA’s Enforcement of Its Bylaws was

7

Motivated by this Lawsuit

8

Although many Plaintiffs allege that RISA’s enforcement of its bylaws—filing liens on

9 their property, sending them bills for dues, interfering with garbage collection, and interfering

10 with the sale of their homes—constitute retaliatory acts, they have offered no evidence to show

11 that RISA’s actions were motivated by their filing of this lawsuit. As discussed above, all

12 properties in Ryderwood are subject to RISA’s bylaws, which this Court upheld as covenants.

13 In fact, enforcement of RISA’s bylaws is necessary to be HOPA compliant. 42 U.S.C. § 14 3607(b)(2)(C).45 RISA’s covenants require all owners to join RISA and abide by the age

15 restrictions. RISA’s bylaws also grant the board of trustees the power to “[s]uspend the voting

16

17

18

42 Pierce Dec. p. 37.

19

43 Ross Dec. Exh. C. 44 Pierce Dec. ¶ 11, pp. 37-52 (listing allegations from Plaintiffs’ discovery responses of

20

retaliatory acts which occurred prior to July 2009). 45 HOPA elements are:

21

(i)

at least 80 percent of the occupied units are occupied by at least one

person who is 55 years of age or older;

22

(ii) the housing facility or community publishes and adheres to policies and

procedures that demonstrate the intent required under this

23

subparagraph; and (iii) the housing facility or community complies with rules issued by the

24

Secretary for verification of occupancy, which shall—

(I)

provide for verification by reliable surveys and affidavits; and

25

(II) include examples of the types of policies and procedures relevant to a determination of compliance with the requirement of clause (ii).

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1 rights and services to any member during any period in which such member shall be in default 2 in the payment of any assessment levied by the Association.”46

3

Plaintiffs allege, for example, that they were prohibited from entering certain RISA

4 property due to the posting of “members only” signs.47 RISA, however, has not prohibited

5 Plaintiffs from using RISA property.48 In fact it is RISA’s position that all residents of

6 Ryderwood are members of RISA, including Plaintiffs; the Board does not recognize

7 “resignations” from RISA. RISA informed residents of that position before this lawsuit 8 began.49 Any such signs posted on RISA property are not applicable to Plaintiffs who are

9 residents as they are members of RISA by virtue of them living in the community. The signs

10 were posted to inform the general public that such property was private property for the use of

11 Ryderwood residents, which includes Plaintiffs who are residents. To the extent any plaintiff is

12 not a resident, they are treated the same as any other non-resident, they do not have a right to

13 use RISA property.

14

Several Plaintiffs also allege that RISA’s removal of such signs from the library was

15 evidence of discrimination against “non-members.”50 However, RISA removed the library

16 signs in order to open the library to the general public and maintain its tax-exempt status.51 The

17 library at all times was open to Plaintiff residents as RISA considers them members of RISA.

18

In one allegation related to such “members only” signs, Plaintiff Raymond Ernest

19 Morris claims that RISA board member Sally-Gene DeBraie threatened to have him arrested

20

21

22

46 Ross Dec. Exh. B, p. 6, ¶ 8.

23

47 See, e.g., Pierce Dec. p. 38.

48 DeBraie Dec. ¶ 8.

24

49 DeBraie Dec. ¶ 8, Exh. C and D.

50 See, e.g., Pierce Dec. p. 14.

25

51 DeBraie Dec. ¶ 9, Exh. E.

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1 for using the Ryderwood Park.52 Ms. DeBraie states that she did not threaten to have him 2 arrested, but that she did tell him that the park was for Ryderwood residents.53 Although Mr.

3 Morris owned property in Ryderwood, he did not live in Ryderwood and therefore was not a 4 resident.54 Plaintiffs have not offered any evidence to show that this statement was motivated

5 by Mr. Morris’s participation in this lawsuit.

6

Plaintiffs also allege that the posting of a list of names of Ryderwood residents who

7 owed dues and the amounts owed was a retaliatory act.55 Posting the names of nonpaying

8 residents has nothing to do with HOPA or its protections. Indeed, this list included non9 Plaintiffs.56 Further, it was removed one day after it was posted due to a complaint from a 10 resident.57 Plaintiffs have not offered any evidence to show that this action was motivated by

11 their filing of this lawsuit.

12

Another common allegation by Plaintiffs is that RISA interfered with the collection of

13 their garbage.58 The monthly dues paid by Ryderwood residents go towards services such as

14 garbage collection, and the bylaws specifically allow the board to suspend services to members 15 who are delinquent in paying their dues.59 Plaintiffs have not shown that RISA actions related

16 to garbage collection services were motivated by their filing of this lawsuit.

17

Several Plaintiffs also allege that RISA selectively enforced its bylaws by filing liens,

18 sending bills for dues, or enforcing age restrictions against Plaintiffs but not against other

19

20

21

52 Pierce Dec. p. 21.

22

53 DeBraie Dec. ¶ 15. 54 Id.

23

55 See, e.g., Pierce Dec. p. 8.

56 DeBraie Dec. ¶ 3.

24

57 Id.

58 See, e.g., Pierce Dec. p. 12-13.

25

59 Ross Dec. Exh. B, p. 6, ¶ 8.

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1 residents.60 RISA enforces these rules against all residents, not just Plaintiffs. RISA has filed

2 liens against and attempted to collected unpaid dues from non-Plaintiffs during the pendency of 3 this lawsuit in the same manner as it has with Plaintiffs.61

4

Plaintiffs have not shown that any of RISA’s actions were motivated by anything other

5 than its desire to enforce its bylaws and collect dues owed. Therefore all such claims should be 6 dismissed.62

7

c. Plaintiffs Fail to Show a Causal Link to this

Lawsuit for Any Alleged Retaliatory Acts 8

Plaintiffs allege a variety of additional retaliatory acts by RISA, but fail to provide any 9

evidence that such acts, if true, were motivated by Plaintiffs’ filing of or participation in this 10

lawsuit. For example, several Plaintiffs allege that letters RISA sent them informing them of 11

complaints by other residents, such as a letter to Ralph Barfell and Sharon Banta, were 12
retaliatory acts.63 Plaintiffs have not shown that such letters were sent for any reason other than 13

in response to resident complaints. In another allegation, Plaintiff Vern Powell claims that 14

RISA board member Sally-Gene DeBraie told residents of Ryderwood not to hire him for his 15
handyman services.64 Ms. DeBraie states that she actually gave positive reviews of his work 16
and did not tell anyone not to hire him.65 Even if Ms. DeBraie had told residents not to hire 17

Mr. Powell, she would not have been acting within the scope of her authority as a member of 18

the board, and Plaintiffs have not offered any evidence to show that such a statement, if made, 19

was motivated by Mr. Powell’s participation in this lawsuit. 20

21

22

60 See, e.g., Pierce Dec. p. 8. 61 DeBraie Dec. ¶ 2.

23

62 Pierce Dec. ¶ 8, pp. 6-27 (listing allegations from Plaintiffs’ discovery responses of

retaliatory acts by RISA or RISA board members post litigation).

24

63 Pierce Dec. p. 12; Ross Dec. Exh. E.

64 Pierce Dec. p. 23.

25

65 DeBraie Dec. ¶ 11.

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1

In another allegation, Plaintiff Betty Gene Donoghue claims that Ms. DeBraie tried to

2 “intimidate her” by preventing her partner from participating in a community event.66 Ms.

3 Donoghue’s partner, James Taylor, is not a Plaintiff in this case or a Ryderwood resident and

4 Ms. DeBraie states that she only commented to Mr. Taylor that he should not participate in 5 community events while intoxicated.67 Her comment had nothing to do with Ms. Donoghue’s

6 participation in this litigation, and Plaintiffs have not offered any evidence to show otherwise.

7

Plaintiffs have failed to meet their burden to show that any of the alleged retaliatory

8 acts, if they occurred, were motivated by the Plaintiffs’ filing of or participation in this lawsuit, 9 and therefore they have failed to make out a prima facie case of retaliation.68

10

C. RISA has Legitimate Non-Retaliatory Reasons for Its Actions

11

If a plaintiff establishes a prima facie case, the defendant has the burden to produce a

12 legitimate non-retaliatory reason for its action. Walker, 272 F.3d at 1128. As discussed above,

13 Plaintiffs have not established a prima facie case of retaliation for any of their many claims.

14 Many of the retaliatory acts alleged by Plaintiffs occurred prior to the filing of this lawsuit and

15 many are attributed to Ryderwood residents and other third parties for whose actions RISA is

16 not liable. For the remaining alleged retaliatory acts which Plaintiffs attribute to RISA or to a

17 RISA board member, Plaintiffs have failed to put forward any evidence to show that RISA was

18 motivated to take such action by Plaintiffs’ filing of this lawsuit.

19

In the event that Plaintiffs have made out a prima facie case as to any post-litigation

20 allegations against RISA, the majority are claims that RISA’s enforcement of its bylaws

21

22

66 Pierce Dec. p.17.

23

67 DeBraie Dec. ¶ 14.

68 Pierce Dec. ¶ 10, pp. 28-37 (listing allegations from Plaintiffs’ discovery responses of

24 retaliatory acts by Ryderwood residents or other third parties), ¶ 12, pp. 52-58 (listing

allegations from Plaintiffs’ discovery responses of retaliatory acts by unnamed or unknown 25 individuals).

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1 constituted retaliatory acts. As discussed above, RISA’s bylaws have been upheld as covenants

2 by this Court and RISA must enforcement them in order to be compliant with HOPA. RISA

3 has the authority to enforce age restrictions, assess dues, file liens, and restrict services to those 4 residents who are not current on their dues.69 After this litigation was filed RISA continued to

5 enforce its bylaws in the same manner that it always had, and Plaintiffs’ many similar pre- and 6 post-litigation claims prove that point.70

7

VI. CONCLUSION

8

Although Plaintiffs allege an enormous number of retaliatory acts, they fail to make out

9 a prima facie case of retaliation as to any of them because they fail to show that Defendant

10 RISA is responsible for such alleged retaliatory acts, and in the event Defendant is responsible,

11 Plaintiffs fail to show that such acts were motivated by Plaintiffs’ participation in this lawsuit.

12 Therefore, all of Plaintiffs’ retaliation claims should be dismissed.

13

DATED this 18th day of April, 2013.

14

BETTS, PATTERSON & MINES, P.S.

15

16

By s/ Steve Goldstein Steven Goldstein, WSBA #11042

17

Richard D. Ross, WSBA #34502

Attorneys for Defendant

18

19

20

21

22

23

69 Ross Dec. Exh. B.

70 Pierce Dec. ¶ 8, pp. 6-27 (listing allegations from Plaintiffs’ discovery responses of

24 retaliatory acts by RISA or RISA board members post litigation), ¶ 11, pp. 37-52 (listing

allegations from Plaintiffs’ discovery responses of retaliatory acts which occurred prior to July 25 2009).

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1

CERTIFICATE OF SERVICE

2

I hereby certify that on the 18th day of April, 2013, I electronically filed the foregoing

3 document, Defendant Ryderwood Improvement and Service Association’s Motion for

4 Summary Judgment Re: Retaliation Claims, with the Clerk of the U.S. District Court for the

5 Western District of Washington using the CM/ECF system, which will send notification of

6 such filing to The Honorable Benjamin H. Settle and all counsel of record and pro se Plaintiffs

7 White:

8

Counsel for Plaintiffs

Joseph E. Lynam, WSBA# 12728

9

LANE POWELL PC

10

1420 Fifth Avenue, Suite 4100 Seattle, WA 98101-2338

11

Counsel for Certain Plaintiffs

12

Stephen G. Leatham, WSBA #15572

HEURLIN, POTTER, JAHN, LEATHAM,

13

HOLTMANN & STOKER, P.S.

14

211 E. McLoughlin Boulevard, Suite 100

P. O. Box 611

15

Vancouver, WA 98666-0611

16

Plaintiffs Pro Se

Bob and Diane White

17

312 Jackson Street

18

Ryderwood, WA 98581

Email: bobwhitehelps@gmail.com

19

By s/ Richard D. Ross

20

Richard D. Ross

21

Attorney BETTS, PATTERSON & MINES, P.S.

22

701 Pike Street, Suite 1400

Seattle, WA 98101-3927

23

Phone: (206) 292-9988

Fax: (206) 343-7053

24

Email: rross@bpmlaw.com

25

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 1

2

UNITED STATES DISTRICT COURT

3

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

4

5 RAYMOND T. BALVAGE, et al.,

6

Plaintiffs,

7 v.

RYDERWOOD IMPROVEMENT AND 8 SERVICE ASSOCIATION, INC.,

CASE NO. C09-5409 BHS
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

9

Defendant.

10

11

This matter comes before the Court on Defendant Ryderwood Improvement and

12 Service Association’s (“RISA”) motion for summary judgment (Dkt. 186). The Court has

13 considered the pleadings filed in support of and in opposition to the motion and the

14 remainder of the file and hereby grants in part and denies in part the motion for the

15 reasons stated herein.

16

I. PROCEDURAL HISTORY

17

On November 2, 2012, Plaintiffs filed their third amended complaint against RISA

18 asserting three claims for relief, including that RISA committed acts in violation of 42

19 U.S.C. § 3617. Dkt. 169 ¶¶ 78–83 (“Retaliation claim”).

20

On April 18, 2013, RISA filed a motion for summary judgment on Plaintiffs’

21 Retaliation claim. Dkt. 186. On May 6, 2013, Plaintiffs responded. Dkt. 197. On May

22 10, 2013, RISA replied. Dkt. 202.

ORDER - 1

1

II. FACTUAL BACKGROUND

2

Ryderwood is an area in Cowlitz County, Washington, that currently consists of

3 approximately 270 single family homes. Dkt. 16, Exh. A at 10. In 1953, Senior Estates,

4 Inc. platted this area as “Ryderwood No. 1.” Dkt. 24, Exh. A. The Ryderwood

5 properties were devised by deeds and were subject to identical covenants and restrictions.

6 See id., Exhs. A and B.

7

In July of 1953, RISA was incorporated. Dkt. 24, Exh. C. In 1975, RISA

8 amended its bylaws and recorded them at the office of the County Recorder of Cowlitz

9 County. Id., Exh. D. The revised bylaws stated that:

10

The qualifications for ownership or purchase of a home within

[Ryderwood] are:

11

Must be a bona-fide recipient of an annuity or a pension,

Must not be less than fifty-five years of age,

12

Must have no additional, permanent occupants of the home (other

than the spouse) who do not meet the above requirements.

13

Id., Exh. D. at 1.

14

Apparently, in 2008, some residents, including some Plaintiffs, resigned from

15

RISA. This resignation eventually led to the filing of this lawsuit in June 2009. Plaintiffs

16

allege that RISA has performed numerous acts of retaliation against Plaintiffs for

17

exercising their rights under the Fair Housing Act. The alleged acts of retaliation range

18

from threats to have individuals arrested for using “members only” areas of the

19

community to instituting foreclosure actions against a named plaintiff’s home. RISA has

20

submitted a chart summarizing these allegations. See Dkt. 188, Declaration of Alicia B.

21

Pierce (“Pierce Dec.”), ¶¶ 8–12.

22

ORDER - 2

1

III. DISCUSSION

2

RISA moves for the entry of judgment on Plaintiffs’ Retaliation claim. Dkt. 186.

3 Plaintiffs counter that there are numerous issues of fact that necessitate a trial. Dkt. 197.

4 Neither Plaintiffs nor RISA attempted to address each specific alleged act, and the Court

5 will not engage in that kind of detailed analysis. Instead, the Court is hopeful that the

6 following discussion and order will set parameters for what acts may go to trial after

7 subsequent proceedings.

8 A. Summary Judgment Standard

9

Summary judgment is proper only if the pleadings, the discovery and disclosure

10 materials on file, and any affidavits show that there is no genuine issue as to any material

11 fact and that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c).

12 The moving party is entitled to judgment as a matter of law when the nonmoving party

13 fails to make a sufficient showing on an essential element of a claim in the case on which

14 the nonmoving party has the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317,

15 323 (1986). There is no genuine issue of fact for trial where the record, taken as a whole,

16 could not lead a rational trier of fact to find for the nonmoving party. Matsushita Elec.

17 Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (nonmoving party must

18 present specific, significant probative evidence, not simply “some metaphysical doubt”).

19 See also Fed. R. Civ. P. 56(e). Conversely, a genuine dispute over a material fact exists

20 if there is sufficient evidence supporting the claimed factual dispute, requiring a judge or

21 jury to resolve the differing versions of the truth. Anderson v. Liberty Lobby, Inc., 477

22

ORDER - 3

1 U.S. 242, 253 (1986); T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d

2 626, 630 (9th Cir. 1987).

3

The determination of the existence of a material fact is often a close question. The

4 Court must consider the substantive evidentiary burden that the nonmoving party must

5 meet at trial – e.g., a preponderance of the evidence in most civil cases. Anderson, 477

6 U.S. at 254; T.W. Elec. Serv., Inc., 809 F.2d at 630. The Court must resolve any factual

7 issues of controversy in favor of the nonmoving party only when the facts specifically

8 attested by that party contradict facts specifically attested by the moving party. The

9 nonmoving party may not merely state that it will discredit the moving party’s evidence

10 at trial, in the hopes that evidence can be developed at trial to support the claim. T.W.

11 Elec. Serv., Inc., 809 F.2d at 630 (relying on Anderson, 477 U.S. at 255). Conclusory,

12 nonspecific statements in affidavits are not sufficient, and missing facts will not be

13 presumed. Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888-89 (1990).

14 B. Retaliation

15

The FHA protects individuals from certain types of retaliatory conduct.

16 Specifically, the FHA provides that it is

17

unlawful to coerce, intimidate, threaten, or interfere with any person in the

exercise or enjoyment of, or on account of his having exercised or enjoyed,

18

or on account of his having aided or encouraged any other person in the

exercise or enjoyment of, any right granted or protected by [the Act].

19

42 U.S.C. § 3617. The U.S. Department of Housing and Urban Development (“HUD”)

20

has identified five non-exclusive examples of the type of conduct prohibited under §

21

3617:

22

ORDER - 4

1

(1) Coercing a person, either orally, in writing, or by other means, to

deny or limit the benefits provided that person in connection with the sale

2

or rental of a dwelling or in connection with a residential real estate-related

transaction because of race, color, religion, sex, handicap, familial status, or

3

national origin.

4

(2) Threatening, intimidating or interfering with persons in their

enjoyment of a dwelling because of the race, color, religion, sex, handicap,

5

familial status, or national origin of such persons, or of visitors or

associates of such persons.

6

(3) Threatening an employee or agent with dismissal or an adverse

7

employment action, or taking such adverse employment action, for any

effort to assist a person seeking access to the sale or rental of a dwelling or

8

seeking access to any residential real estate-related transaction, because of

the race, color, religion, sex, handicap, familial status, or national origin of

9

that person or of any person associated with that person.

10

(4) Intimidating or threatening any person because that person is

engaging in activities designed to make other persons aware of, or

11

encouraging such other persons to exercise, rights granted or protected by

this part.

12

(5) Retaliating against any person because that person has made a

13

complaint, testified, assisted, or participated in any manner in a proceeding

under the Fair Housing Act.

14

24 CFR § 100.400(c).

15

To present a prima facie claim for retaliation, plaintiffs must show (1) protected

16

activity, (2) adverse action by defendant against plaintiffs, and (3) a causal link between

17

the activity and the adverse action. See, e.g., Walker v. City of Lakewood, 272 F.3d 1114,

18

1128 (9th Cir. 2001). If plaintiffs meet their burden, then the burden shifts to defendant

19

to show a legitimate non-retaliatory reason for the allegedly adverse action. Id. If the

20

defendant meets its burden of production, the burden of persuasion shifts back to the

21

plaintiff to show that the defendant’s proffered reason is not worthy of credence or that

22

ORDER - 5

1 the reason is mere pretext for a retaliatory action. Id.; see also Reeves v. Sanderson

2 Plumbing Prods., Inc., 530 U.S. 133, 143 (2000).

3

Upon review of the briefs and accompanying material, it is clear that this motion is

4 more about the scope of alleged conduct that could be considered retaliatory. For

5 example, Plaintiffs allege that

6

RISA acted wrongfully and unlawfully by taking actions, by causing or

allowing others to take actions, and/or in not preventing or dissuading

7

others from taking actions to retaliate against Plaintiffs and to otherwise

take actions which were or are in violation of 42 U.S.C. § 3617.

8

Dkt. 169, ¶ 79. According to Plaintiffs’ discovery responses, this includes acts

9

committed by

10

(i) residents of Ryderwood; (ii) third-parties, such as the community pastor,

11

the garbage collector, and postal employees; and (iii) unidentified persons,

such as the Balvage Plaintiffs’ claim that “[u]nknown members/owner of

12

RISA interfere[d] with our quiet enjoyment of property and intimidate[d] us

as they r[o]de past us on their bicycles.

13

Pierce Dec., ¶¶ 8–12. While such experiences may be unpleasant, ill will among

14

neighbors and adverse experiences with third parties are not actionable as retaliation for

15

filing an FHA complaint. Plaintiffs fail to recognize this as they have even alleged acts

16

that preceded the filing of the FHA complaint, which is the protected activity in question.

17

The Court’s analysis covers four categories of actions, and the Court grants summary

18

judgment on some of these actions. The Court denies summary judgment on some types

19

of actions and sets parameters for the types of alleged acts that may proceed to trial.

20

21

22

ORDER - 6

1

1. Timing

2

With regard to timing, RISA contends that any alleged action that occurred prior

3 to the filing of the complaint is not cognizable. Dkt. 186 at 18–19. For example, some

4 Plaintiffs allege that RISA retaliated against them by posting their names on a list of

5 Ryderwood residents that sent letters of resignation to RISA. Pierce Dec., ¶ 11. The list

6 is dated March 3, 2008. Dkt. 190, Declaration of Richard Ross (“Ross Dec.”), Exh. C.

7 Plaintiffs fail to respond to RISA’s contention or explain how this act could possibly be

8 retaliatory for a complaint that was filed sixteen months later; there can be no retaliation

9 for a protected act that has not occurred. See 24 CFR § 100.400(c)(5). Therefore, the

10 Court grants RISA’s motion as to any act that occurred before any named plaintiff

11 engaged in a protective activity.

12

It is important to note that there were only four named plaintiffs in the original

13 complaint filed July 7, 2009. See Dkt. 1. Although these named plaintiffs were alleged

14 class representatives, the class was never certified and no other plaintiffs engaged in a

15 protective activity at that time. The remainder of the current named plaintiffs engaged in

16 a protected activity on April 28, 2010, when they filed a motion to amend the complaint.

17 Accordingly, different dates apply to different individuals.

18

The practical effect of this finding is that the majority of specific alleged adverse

19 acts do not support a claim for retaliation. For example, Plaintiff Sharon Marie Banta

20 responded to discovery requests listing 23 alleged acts of retaliation, only two of which

21 are dated after she joined the lawsuit as a named plaintiff. Pierce Dec., Exh. 5. Although

22 some events are undated, the alleged adverse actions were directed at non-RISA members

ORDER - 7

1 in general and will be discussed in a separate section of this order. However, with regard

2 to the dated acts, RISA is entitled to judgment that, even if true, Ms. Banta could not

3 possibly win relief.

4

2. Third Parties

5

RISA argues that it is not liable for the actions of non-member, third parties. Dkt.

6 186 at 12–14. For example, Plaintiffs Bob and Diana White (“Whites”) claim that RISA

7 is retaliating against them by foreclosing on their home. Pierce Dec., ¶ 10. Based on the

8 information submitted by RISA, this is a complete misrepresentation of the foreclosure.

9 RISA submitted a complaint for foreclosure in state court alleging that an entity named

10 SWIFFT is foreclosing on the Whites’ home. Ross Dec., Exh. D. RISA contends, and

11 Plaintiffs do not dispute, that SWIFFT is the group formed by Plaintiffs to equally share

12 the cost of litigation. Dkt. 186 at 13. The Court finds it abundantly clear that the

13 foreclosure is not an adverse action by RISA.

14

Additionally, some Plaintiffs allege that RISA influenced the relief postmaster and

15 garbage collector to stop service at resigning members’ houses. For example, Alfred and

16 Gloria Leach declare that “Jeff Cummins, owner/operator of Community Waste &

17 Recycling, did threaten us by sending a letter stating, ‘I am no longer allowed to pick up

18 any can/cans of any household that is not a member of RISA.’” Pierce Dec., ¶ 10, No.

19 69. Even if this could be considered an adverse act of interference by RISA, Plaintiffs

20 have failed to establish a causal relationship between the act and themselves because the

21 refusal of service was directed at all members that have resigned from RISA, not as to

22

ORDER - 8

1 members that filed the complaint. Therefore, the Court grants RISA’s motion on this and

2 similar alleged acts of retaliation.

3

3. Acts by Owner/Members

4

RISA contends that it is not responsible for alleged acts taken by members of the

5 association. Dkt. 186 at 12–15. Plaintiffs counter that they “have alleged such a

6 pervasive and ongoing pattern of retaliatory conduct that defendant is deemed to be

7 responsible for it.” Dkt. 197 at 5 (citing Halprin v. The Prairie Single Family Homes of

8 Dearborn Park Association, 388 F.3d 327, 330 (7th Cir. 2004), and Bloch v. Frischholz,

9 587 F.3d 771 (7th Cir. 2009)). These cases are easily distinguishable and far from

10 persuasive. Halprin was not a retaliation case; it dealt with numerous members of an

11 association conspiring to intimidate and threaten another member of the association based

12 on the victim’s religious beliefs. 388 F.3d at 328. Similarly, Bloch involved acts of

13 intentional discrimination based on an individual’s religion. 587 F.3d 771. Therefore,

14 the Court declines to adopt Plaintiffs’ proposition.

15

Next, Plaintiffs argue that RISA may be held liable for its members’ actions

16 because of its “independent failure to act so as to halt the ongoing retaliatory conduct

17 against plaintiffs.” Dkt. 197 at 5 (citing Neudecker v. Boisclair Corp., 351 F.3d 361, 365

18 (8th Cir. 2003)). In Neudecker, the plaintiff “repeatedly complained to Boisclair

19 management about the harassment to no avail . . . .” Id. at 365. In this case, there is no

20 evidence that any Plaintiff repeatedly complained to RISA or requested that RISA halt

21 the ongoing retaliatory conduct. Therefore, the Court grants RISA’s motion as to any

22

ORDER - 9

1 “failure to act” claim for retaliation absent a showing that the particular victim put RISA

2 on notice of retaliatory conduct by RISA members.

3

Plaintiffs also argue that, under the doctrine of respondeat superior, RISA is liable

4 for the acts of its agents, which includes its members. Plaintiffs, however, fail to show

5 that RISA directed its members to harass, intimidate, or threaten any named plaintiff.

6 Plaintiffs also fail to show that any alleged act was done for the benefit of RISA.

7 Therefore, the Court grants RISA’s motion as to any act advanced under the theory of

8 respondeat superior.

9

With regard to the remainder of Plaintiffs’ alleged adverse actions by RISA

10 members, they contend that

11

[g]enuine issues of material fact remain regarding the scope and extent of

the pattern of retaliatory conduct, defendant’s knowledge of the adverse

12

actions taken against plaintiffs, and defendant’s responsibility for failing to

act to stop the retaliatory actions.

13

Dkt. 197 at 5. Conclusory, nonspecific statements in affidavits are not sufficient, and

14

missing facts will not be presumed. Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888-89

15

(1990). Although the Court recognizes that the alleged adverse acts are too numerous to

16

fully address each one in this round of briefing, it is not the Court’s task “to scour the

17

record in search of a genuine issue of triable fact. We rely on the nonmoving party to

18

identify with reasonable particularity the evidence that precludes summary judgment.”

19

Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996). Having stated that, the Court is

20

unable to completely close the door on the possibility that RISA could be held

21

responsible for specific acts of RISA members. The Court will rely on the experienced

22

ORDER - 10

1 attorneys to narrow the number of alleged acts to those that fit within the narrow scope of

2 failing to act. The Court may also require an offer of proof before any evidence is

3 admitted on this issue at trial. Therefore, the Court grants RISA’s motion with the

4 exception of any failing to act claims.

5

4. Acts by Board Members

6

According to RISA’s bylaws, RISA is a corporation that acts through its board of

7 trustees and officers. Ross Dec., Exh. B. Plaintiffs allege numerous act of retaliation by

8 the trustees and officers, both in their official capacity (Pierce Dec, ¶ 8) and in their

9 personal capacity (id. ¶ 9). RISA contends that Plaintiffs have failed to show a prima

10 facie case of retaliation and, even if Plaintiffs met their burden, RISA has legitimate non-

11 retaliatory reasons for its actions. Dkt. 186 at 23. It is undisputed that RISA acted

12 adversely toward some of Plaintiffs on some occasions. For example, RISA excluded

13 non-paying members from members’ areas and services. RISA also filed liens against

14 the homes of the non-paying members. The issues, however, are whether Plaintiffs can

15 show a causal link between these actions and this lawsuit and whether RISA’s reasons for

16 acting were legitimately non-retaliatory. With regard to the former issue, the Court finds

17 that most, if not all, of RISA’s alleged actions were directed at non-paying members in

18 general and not toward the select group of non-paying members that are involved in this

19 lawsuit. Although the Court declines at this time to apply this reasoning to each specific

20 alleged act, the Court will conclude that, in order to proceed to trial, Plaintiffs must show

21 that they were treated differently than the other non-paying members in connection with

22 the collection of dues.

ORDER - 11

1

With regard to RISA’s legitimate reasons, the Court finds that RISA enforcing its

2 bylaws is a legitimate reason for any such action. The Court also finds that limiting a

3 common area and a common service to paying members is a legitimate reason for such

4 action. Although the Court declines to apply this reasoning to each specific alleged act,

5 the Court concludes that Plaintiffs must make an offer of proof as to pretext before any

6 relevant evidence will be admitted at trial.

7

Finally, Plaintiffs have alleged adverse actions by board members and officers

8 while acting in their personal capacity. “[W]e do not want, and we do not think Congress

9 wanted, to convert every quarrel among neighbors in which a racial or religious slur is

10 hurled into a federal case.” Halprin v. Prairie Single Family Homes of Dearborn Park

11 Ass’n, 388 F.3d 327, 330 (7th Cir. 2004). This is even more true for alleged acts of

12 intimidation at depositions or alleged acts of swerving a car toward an individual. Pierce

13 Dec., ¶ 9. Therefore, the Court grants RISA’s motion for summary judgment on the five

14 alleged acts by board members acting in their personal capacity.

15

IV. ORDER

16

Therefore, it is hereby ORDERED that RISA’s motion for summary judgment

17 (Dkt. 186) is GRANTED in part and DENIED in part as stated herein.

18

Dated this 28th day of May, 2011.

19 20

A

21

BENJAMIN H. SETTLE United States District Judge

22

ORDER - 12

 
 1

2

3

4

5 UNITED STATES DISTRICT COURT

6

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

7

8 RAYMOND T. BALVAGE,

9

Plaintiff,

10

v.

11 RYDERWOOD IMPROVEMENT AND SERVICE ASSOCIATION, INC.,
12
Defendant. 13

CASE NO. C09-5409 BHS
ORDER DENYING MOTION FOR RECONSIDERATION

14 This matter comes before the Court on Plaintiffs’ motion for reconsideration (Dkt.
15 219). The Court has considered the pleadings filed in support of the motion and the
16 remainder of the file and hereby denies the motion for the reasons stated herein.
17 On November 2, 2012, Plaintiffs filed their third amended complaint against RISA
18 asserting three claims for relief, including that RISA committed acts in violation of 42
19 U.S.C. § 3617. Dkt. 169 ¶¶ 78–83 (“retaliation claim”).
20 On April 18, 2013, RISA filed a motion for summary judgment on Plaintiffs’
21 retaliation claim. Dkt. 186. On May 28, 2013, the Court granted the motion in part and
22

ORDER - 1

1 denied it in part. Dkt. 207. On June 10, 2013, Plaintiffs filed the instant motion for

2 reconsideration. Dkt. 219.

3

Motions for reconsideration are disfavored. The court will ordinarily deny such

4 motions in the absence of a showing of manifest error in the prior ruling or a showing of

5 new facts or legal authority which could not have been brought to its attention earlier

6 with reasonable diligence. Local Rule CR 7(h)(1).

7

In this case, Plaintiffs have failed to meet their burden for reconsideration.

8 Plaintiffs seek reconsideration based on “new material that was not provided to the Court

9 in connection with the prior motion for summary judgment.” Dkt. 219 at 2. The new

10 material is Plaintiffs’ prior state court class action complaint and allegations in that

11 complaint that Defendant had engaged in retaliatory action prior to the filing of that

12 complaint. Id. Plaintiffs, however, have failed to show that this information could not

13 have been brought to the Court’s attention with reasonable diligence. Therefore, the

14 Court denies the motion for reconsideration.

15

IT IS SO ORDERED.

16

Dated this 10th day of June, 2013.

17 18

A

19

BENJAMIN H. SETTLE United States District Judge

20

21

22

ORDER - 2

 
 1

2

3

4

5 UNITED STATES DISTRICT COURT

6

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

7

8 RAYMOND T. BALVAGE and DEBORAH A. BALVAGE, et al.,
9 Plaintiff,
10 v.
11 RYDERWOOD IMPROVEMENT AND
12 SERVICE ASSOCIATION, INC.,

13

Defendant.

CASE NO. C09-5409 BHS
ORDER DENYING DEFENDANT’S MOTION TO EXCLUDE PLAINTIFFS’ EXPERT HUFFER

14

15

This matter comes before the Court on Defendant Ryderwood Improvement and

16 Service Association, Inc.’s (“RISA”) motion to exclude Plaintiffs’ expert Huffer (Dkt.

17 208).

18

On May 29, 2013, RISA filed the instant motion requesting that the Court exclude

19 Plaintiffs’ expert Dr. Karin D. Huffer because Plaintiffs failed to meet specific disclosure

20 deadlines. Dkt. 208. On June 10, 2013, Plaintiffs responded. Dkt. 217. On June 13,

21 2013, RISA responded. Dkt. 222.

22

ORDER - 1

1

While it appears that the most important issue with Dr. Huffer will be overcoming

2 a Daubert motion, the Court finds that RISA is not prejudiced by Plaintiffs’ late

3 disclosures. There is sufficient time between now and trial to adequately respond to Dr.

4 Huffer’s opinions and report. The Court notes that there is a pending motion to extend

5 the expert and discovery deadlines that appears to have merit. Dkt. 212. In light of the

6 pending motion and the Court finding no prejudice, the Court DENIES RISA’s motion

7 and Dr. Huffer’s report must be served no later than July 1, 2013.

8

IT IS SO ORDERED.

9

Dated this 19th day of June, 2013.

10 11

A

12

BENJAMIN H. SETTLE United States District Judge

13

14

15

16

17

18

19

20

21

22

ORDER - 2

 
 1

2

3

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

4

AT TACOMA

5 RAYMOND T. BALVAGE, et al.,

6

Plaintiffs,

7 v.

8 RYDERWOOD IMPROVEMENT AND SERVICE ASSOCIATION, INC.,
9
Defendant. 10

CASE NO. C09-5409 BHS
ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

11 This matter comes before the Court on Defendant Ryderwood Improvement and
12 Service Association, Inc.’s (“RISA”) motion for summary judgment (Dkt. 210). The
13 Court has considered the pleadings filed in support of and in opposition to the motion and
14 the remainder of the file and hereby denies the motion for the reasons stated herein.
15 I. PROCEDURAL HISTORY
16 Some of the properties in Ryderwood were sold subject to certain covenants and
17 restrictions. Dkt. 169, ¶ 35. Plaintiffs alleged that their properties were not subject to
18 these restrictions, but that they signed Certificates of Membership in RISA when they
19 bought their properties. Id., ¶¶ 42, 44. On September 21, 2010, the Court granted
20 RISA’s motion for partial summary judgment concluding that RISA’s bylaws were
21 enforceable against Plaintiffs as covenants. Dkt. 100.
22

ORDER - 1

1

On May 29, 2013, RISA filed a motion for partial summary judgment requesting

2 that the Court grant it judgment on the second counterclaim for the collection of unpaid

3 dues. Dkt. 210. On June 17, 2013, Plaintiffs responded. Dkt. 224. On June 20, 2013,

4 RISA replied. Dkt. 228.

5

II. DISCUSSION

6 A. Summary Judgment Standard

7

Summary judgment is proper only if the pleadings, the discovery and disclosure

8 materials on file, and any affidavits show that there is no genuine issue as to any material

9 fact and that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c).

10 The moving party is entitled to judgment as a matter of law when the nonmoving party

11 fails to make a sufficient showing on an essential element of a claim in the case on which

12 the nonmoving party has the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317,

13 323 (1986). There is no genuine issue of fact for trial where the record, taken as a whole,

14 could not lead a rational trier of fact to find for the nonmoving party. Matsushita Elec.

15 Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (nonmoving party must

16 present specific, significant probative evidence, not simply “some metaphysical doubt”).

17 See also Fed. R. Civ. P. 56(e). Conversely, a genuine dispute over a material fact exists

18 if there is sufficient evidence supporting the claimed factual dispute, requiring a judge or

19 jury to resolve the differing versions of the truth. Anderson v. Liberty Lobby, Inc., 477

20 U.S. 242, 253 (1986); T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d

21 626, 630 (9th Cir. 1987).

22

ORDER - 2

1

The determination of the existence of a material fact is often a close question. The

2 Court must consider the substantive evidentiary burden that the nonmoving party must

3 meet at trial – e.g., a preponderance of the evidence in most civil cases. Anderson, 477

4 U.S. at 254; T.W. Elec. Serv., Inc., 809 F.2d at 630. The Court must resolve any factual

5 issues of controversy in favor of the nonmoving party only when the facts specifically

6 attested by that party contradict facts specifically attested by the moving party. The

7 nonmoving party may not merely state that it will discredit the moving party’s evidence

8 at trial, in the hopes that evidence can be developed at trial to support the claim. T.W.

9 Elec. Serv., Inc., 809 F.2d at 630 (relying on Anderson, 477 U.S. at 255). Conclusory,

10 nonspecific statements in affidavits are not sufficient, and missing facts will not be

11 presumed. Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888-89 (1990).

12 B. RISA’s motion

13

RISA claims that its “[m]otion is very simple.” Dkt. 228 at 1. RISA, however,

14 confuses the issue of whether it can enforce its bylaws with the issue of how it enforces

15 its bylaws. The issue of whether RISA can enforce its bylaws has been decided in

16 RISA’s favor. See Dkt. 100. In the instant motion, the issue is not whether RISA can

17 assess dues, because it can. The issue is how much it may assess. On this issue, RISA’s

18 motion fails for at least two reasons. First, RISA has failed to show that the specific

19 monthly amount of dues owed is anything more than an arbitrary amount fixed by

20 members of the board. Although RISA asserts through the improperly filed

21 “supplemental declaration” that the dues help pay for services available to all residents,

22 RISA has failed to submit an accounting of these expenses. Therefore, there is an issue

ORDER - 3

1 of fact as to the specific monthly dues owed by any member of RISA, let alone allegedly

2 “non-member” Plaintiffs.

3

Second, the bylaws require as assessment of fees for services rendered. Dkt. 210

4 at 2–3. It is undisputed that, subsequent to “withdrawing” from RISA, “Plaintiffs have

5 privately contracted for their water, sewer, and garbage services.” Dkt. 89 at 2. RISA

6 has failed to show that they are entitled to judgment as a matter of law that, pursuant to

7 the wording of the bylaws, Plaintiffs are responsible for a uniform flat fee when they did

8 not receive at least some of the services offered to paying members of the community.

9 Moreover, some of Plaintiffs’ claims of retaliation allege that RISA specifically told the

10 garbage service not to collect Plaintiffs’ garbage. Even if the garbage payment is

11 “community based,” these factual allegations create questions of fact whether RISA was

12 the catalyst for Plaintiffs ordering their own services. No interpretation of the bylaws

13 supports the proposition that Plaintiffs are financially responsible for services that RISA

14 prevented Plaintiffs from enjoying. Therefore, RISA’s motion must be denied because

15 questions of fact exist as to Plaintiffs’ actual share of the required dues.

16

III. ORDER

17

Therefore, it is hereby

18

ORDERED that RISA’s motion for summary judgment (Dkt. 210) is DENIED.

19

Dated this 9th day of July, 2013.

20 21

A

22

BENJAMIN H. SETTLE United States District Judge

ORDER - 4

 
 1

2

3

4

5 UNITED STATES DISTRICT COURT

6

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

7

8 RAYMOND T. BALVAGE, et al.,

9

Plaintiffs,

10

v.

11 RYDERWOOD IMPROVEMENT AND SERVICE ASSOCIATION, INC.,
12
Defendant. 13

CASE NO. C09-5409 BHS
ORDER DENYING DEFENDANT’S MOTION FOR RECONSIDERATION

14

This matter comes before the Court on Defendant Ryderwood Improvement and

15

Service Association, Inc.’s (“RISA”) motion for reconsideration (Dkt. 233).

16

On May 29, 2013, RISA filed a motion for summary judgment on its counterclaim

17

for unpaid dues. Dkt. 210. On July 9, 2013, the Court denied the motion. Dkt. 232. On

18

July 23, 2013, RISA filed a motion for reconsideration. Dkt. 233.

19

Motions for reconsideration are governed by Local Rule CR 7(h), which provides

20

as follows:

21

Motions for reconsideration are disfavored. The court will ordinarily

22

deny such motions in the absence of a showing of manifest error in the

ORDER - 1

1

prior ruling or a showing of new facts or legal authority which could not

have been brought to its attention earlier with reasonable diligence.

2

Local Rule CR 7(h)(1).

3

In this case, RISA moves for reconsideration under both theories. Dkt. 233 at 4.

4

With regard to new facts or authority, everything provided to the Court in the instant

5

motion could have been provided earlier with reasonable diligence. See, e.g., id. at 6 n. 5.

6

Therefore, the Court denies the portion of motion that relies upon this theory (id. § IV-A).

7

The Court also notes that the dispositive motion deadline has not passed and RISA is not

8

precluded from filing a proper motion relying on these facts and authorities.

9

With regard to manifest error, RISA contends that the Court relied upon three

10

unsupported assumptions. Dkt. 233 at 9. The Court disagrees. RISA contends that “[i]t

11

is the Plaintiffs’ burden to prove their claims, not RISA’s burden to disprove them.” Dkt.

12

233 at 2. While this statement is true, it is has no bearing on the current issue because

13

RISA moved for summary judgment on its counterclaim and bears the burden of proof.

14

See Dkt. 210. “[W]here the moving party has the burden—the plaintiff on a claim for

15

relief or the defendant on an affirmative defense— his showing must be sufficient for the

16

court to hold that no reasonable trier of fact could find other than for the moving party.”

17

Calderone v. United States, 799 F.2d 254, 259 (6th Cir. 1986) (citation omitted; emphasis

18

in original); see also Southern Calif. Gas Co. v. City of Santa Ana, 336 F.3d 885, 888

19

(9th Cir. 2003). Although it is not the Court’s job “to scour the record in search of a

20

genuine issue of triable fact,” Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996), the

21

Court was familiar with some of the plaintiffs’ retaliation allegations. See Dkt. 207.

22

ORDER - 2

1 There are numerous allegations that RISA intentionally prevented some plaintiff from

2 receiving the benefits of being a member of the association. Dkt. 188, Declaration of 3 Alicia B. Pierce, ¶ 10.1 Based on these assertions, the Court is unable to conclude that no

4 reasonable trier of fact would conclude that every plaintiff was responsible for every

5 unpaid association dues when the association prevented plaintiffs from enjoying the

6 benefit conferred by collection of the dues. Therefore, the Court DENIES RISA’s

7 motion for reconsideration.

8

IT IS SO ORDERED.

9

Dated this 24th day of July, 2013.

10 11

A

12

BENJAMIN H. SETTLE United States District Judge

13

14

15

16

17

18

19

20

21

1 The Court concedes that the evidence in its current form, discovery requests, is

22

inadmissible, but the evidence could easily become admissible via declarations by the declarants or calling the declarant as a witness at trial.

ORDER - 3

 
 1

2

3

4

5

6

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON

AT TACOMA

7

8 RAYMOND T. BALVAGE, et al.,

9

Plaintiffs,

10 v.

11

RYDERWOOD IMPROVEMENT AND SERVICE ASSOCIATION, INC.,

CASE NO. C09-5409 BHS
ORDER GRANTING AND DENYING DEFENDANT’S MOTIONS FOR SUMMARY JUDGMENT

12

Defendant.

13

14

This matter comes before the Court on Defendant Ryderwood Improvement and

15 Service Association, Inc.’s (“RISA”) motions for summary judgment (Dkts. 241, 249,

16 251, & 257). The Court has considered the pleadings filed in support of and in opposition

17 to the motions and the remainder of the file and hereby grants two motions and denies

18 two motions for the reasons stated herein.

19

I. PROCEDURAL HISTORY

20

On July 8, 2009, Plaintiffs Raymond and Deborah Balvage and Charles and Susan

21 Weaver, individually and on behalf of their marital communities and on behalf of a class

22 of similarly situated individuals (collectively, “Plaintiffs”), filed a complaint against

ORDER - 1

1 RISA. Dkt. 1. On November 10, 2009, Plaintiffs filed an amended complaint. Dkt. 11.

2 On June 2, 2010, Plaintiffs filed their second amended complaint. Dkt. 41. In their

3 second amended complaint, Plaintiffs allege that RISA violated the Federal Fair Housing

4 Act (“FHA”), 42 U.S.C. § 3604(c), et seq., by engaging in illegal housing discrimination

5 on the basis of familial status, and seek declaratory and injunctive relief. Id. at 12-16.

6

On June 4, 2010, the Court granted in part Plaintiffs’ motion for partial summary

7 judgment concluding that, based on the HUD Memo, RISA could not “claim the HOPA

8 exemption because it continued to discriminate while attempting to comply with the

9 verification requirements.” Dkt. 42 at 12-13. On August 11, 2010, the Court granted

10 Plaintiffs’ motion to issue a preliminary injunction ordering RISA to, among other things,

11 remove all age restrictions from its bylaws, remove all signage that stated its 55 and older

12 restrictive covenants and inform residents and local real estate agents that the Court had

13 ordered RISA to immediately cease enforcement of its age restrictions. Dkt. 75. On

14 September 1, 2010, the Court granted RISA’s motion for a discretionary appeal under 28

15 U.S.C. § 1292(b), concluding that the questions presented were controlling issues of law

16 and that there were substantial grounds for differences of opinion. Dkt. 92. The Court

17 stayed the action, with the exception of RISA’s pending motion for partial summary

18 judgment, and certified the action to the Ninth Circuit Court of Appeals. Id. On

19 September 21, 2010, the Court granted RISA’s motion for partial summary judgment

20 concluding that RISA’s bylaws are enforceable as covenants. Dkt. 100.

21

On April 27, 2011, the Ninth Circuit issued its opinion on RISA’s appeal reversing

22 the Court’s interpretation of the HUD Memo, holding that:

ORDER - 2

1

a residential community that has continuously operated as a retirement

community for persons age 55 or older can qualify for the housing for older

2

persons exemption from the Fair Housing Act’s prohibition on familial

status discrimination by establishing that it currently satisfies the

3

exemption’s three statutory and regulatory criteria at the time of the alleged

violation, even if the community enforced age restrictions when it first

4

achieved compliance with the exemption’s age verification requirement.

5 Balvage v. Ryderwood Improvement and Service Ass’n, Inc., 642 F.3d 765, 768-69 (9th

6 Cir. 2011). Further, the Ninth Circuit held that

7

[t]he [district] court properly concluded that RISA did not qualify for the

HOPA exemption between May 2000 and September 2007, when RISA

8

completed its first HOPA verification survey, because during that time

RISA did not verify by reliable surveys and affidavits—or through other

9

adequate means—that at least 80 percent of its occupied units were

occupied by at least one person who was 55 years of age or older.

10

Id. at 776 (citing 42 U.S.C. § 3607(b)(2)(C)(iii)). Accordingly, the Ninth Circuit

11

remanded the action to this Court to address the parties’ dispute as to “whether RISA’s

12

September 2007 survey satisfies the statutory and regulatory criteria.” Id. at 780.

13

On April 12, 2012, Plaintiffs filed their second motion for partial summary

14

judgment (Dkt. 128) and RISA filed a motion for summary judgment (Dkt. 133). Both

15

motions addressed the adequacy of the 2007 survey. On July 20, 2012, the Court denied

16

both motions because material questions of fact existed for trial. Dkt. 146.

17

On September 20, 2012, Plaintiffs moved to amend their complaint requesting

18

leave to add claims of retaliation. Dkt. 151. On October 26, 2012, the Court granted the

19

motion. Dkt. 164. On April 18, 2013, RISA filed a motion for summary judgment on

20

Plaintiffs’ retaliation claims. Dkt. 186. On May 28, 2013, the Court granted in part and

21

denied in part RISA’s motion. Dkt. 207. After dismissing the majority of Plaintiffs’

22

ORDER - 3

1 alleged acts of retaliation, the Court allowed Plaintiffs to assert two limited categories of

2 retaliation claims. Id. Specifically, the Court allowed (1) “failure to act” claims wherein

3 RISA was on notice of specific retaliatory conduct and failed to act to remedy or prevent

4 such conduct and (2) acts by RISA’s board members if Plaintiffs can show that they were

5 treated differently than other non-paying members. Id. at 10–12.

6

On May 29, 2013, RISA filed a motion for summary judgment on its claims for

7 unpaid association dues. Dkt. 210. On July 9, 2013, the Court denied the motion

8 because questions of fact existed regarding whether Plaintiffs received the services

9 covered by the association’s dues. Dkt. 232.

10

Defendant has filed four motions for summary judgment on the following issues:

11 (1) Plaintiffs’ remaining retaliation claims (Dkt. 241); (2) Plaintiffs’ punitive damage

12 claims (Dkt. 249); (3) RISA’s claims for unpaid dues (Dkt. 251); and (4) the 2013 survey

13 (Dkt. 257). Plaintiffs responded. Dkts. 246, 253, 260, & 264. RISA replied. Dkts. 246,

14 256, 262, & 267.

15

II. DISCUSSION

16 A. Summary Judgment Standard

17

Summary judgment is proper only if the pleadings, the discovery and disclosure

18 materials on file, and any affidavits show that there is no genuine issue as to any material

19 fact and that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c).

20 The moving party is entitled to judgment as a matter of law when the nonmoving party

21 fails to make a sufficient showing on an essential element of a claim in the case on which

22 the nonmoving party has the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317,

ORDER - 4

1 323 (1986). There is no genuine issue of fact for trial where the record, taken as a whole,

2 could not lead a rational trier of fact to find for the nonmoving party. Matsushita Elec.

3 Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (nonmoving party must

4 present specific, significant probative evidence, not simply “some metaphysical doubt”).

5 See also Fed. R. Civ. P. 56(e). Conversely, a genuine dispute over a material fact exists

6 if there is sufficient evidence supporting the claimed factual dispute, requiring a judge or

7 jury to resolve the differing versions of the truth. Anderson v. Liberty Lobby, Inc., 477

8 U.S. 242, 253 (1986); T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d

9 626, 630 (9th Cir. 1987).

10

The determination of the existence of a material fact is often a close question. The

11 Court must consider the substantive evidentiary burden that the nonmoving party must

12 meet at trial – e.g., a preponderance of the evidence in most civil cases. Anderson, 477

13 U.S. at 254; T.W. Elec. Serv., Inc., 809 F.2d at 630. The Court must resolve any factual

14 issues of controversy in favor of the nonmoving party only when the facts specifically

15 attested by that party contradict facts specifically attested by the moving party. The

16 nonmoving party may not merely state that it will discredit the moving party’s evidence

17 at trial, in the hopes that evidence can be developed at trial to support the claim. T.W.

18 Elec. Serv., Inc., 809 F.2d at 630 (relying on Anderson, 477 U.S. at 255). Conclusory,

19 nonspecific statements in affidavits are not sufficient, and missing facts will not be

20 presumed. Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888-89 (1990).

21

22

ORDER - 5

1 B. 2013 Survey

2

In 2013 RISA conducted a survey to determine whether at least 80% of all

3 occupied residences in Ryderwood were occupied by at least one person over the age of

4 55. Based on this survey, RISA moves for summary judgment on the issue of whether

5 the association is currently compliant with HOPA. Dkt. 257. Plaintiffs contest only “the

6 reliability of the data on which [RISA] relies.” Dkt. 264 at 1.

7

“In order for a housing facility or community to qualify as housing for persons 55

8 years of age or older, it must be able to produce, in response to a complaint filed under

9 this title, verification of compliance . . . through reliable surveys and affidavits.” 24

10 C.F.R. § 100.307(a). The regulations list six types of reliable documents for age

11 verification (drivers license, passport, etc.) or an occupant may use a “certification in a

12 lease, application, affidavit, or other document signed by any member of the household

13 age 18 or older asserting that at least one person in the unit is 55 years of age or older.”

14 Id. § 100.307(d).

15

In this case, Plaintiffs advance six reasons RISA’s survey is flawed. Dkt. 264 at 2.

16 First, Plaintiffs contend that “necessary documentation is missing . . . .” Id. Plaintiffs

17 point to one survey wherein the residents failed to include a copy of the document used to

18 identify their birthdates. Dkt. 259-4 at 1 (Bichlers’ survey). The failure of one resident

19 to provide their actual identification does not create a question of fact as to the reliability

20 of the entire survey. Moreover, Plaintiffs’ extrapolation of one alleged mistake applied

21 across the entire survey is pure speculation and contrary to the vast majority of submitted

22 survey documents. Therefore, the Court declines to accept Plaintiffs’ proposition that the

ORDER - 6

1 entire survey is flawed because the Bichlers failed to provide copies of their

2 identifications.

3

Second, Plaintiffs contend that none of the survey forms were verified under

4 penalty of perjury. Dkt. 264 at 2. There is no such requirement in the HOPA regulations

5 for verification under penalty of perjury; the cited regulation requires a certification

6 statement only in the absence of acceptable age verification documents. Therefore,

7 Plaintiffs’ argument on this issue is without merit.

8

Third, Plaintiffs contend that RISA included properties that are not part of

9 Ryderwood. Dkt. 264 at 2. Plaintiffs’ contention is pure speculation and is not evidence

10 that creates a material question of fact for trial. In fact, Plaintiffs fails to identify a single

11 property that should not have been included in the survey, much less a sufficient number

12 of properties that would drop the survey results to less than 80%. Therefore, Plaintiffs

13 have failed to meet their burden on this issue.

14

Fourth, Plaintiffs contend that RISA used unreliable information regarding

15 Plaintiffs’ information. Dkt. 264 at 2. According to Plaintiffs, RISA relied on

16 information that Plaintiffs provided in discovery responses “that may or may not have

17 still been accurate as of the time of the survey.” Dkt. 265, ¶ 6. Again, this is pure

18 speculation and is not based upon any evidence identified in the record that creates a

19 material question of fact for trial.

20

Fifth, Plaintiffs contend that the persons who signed RISA’s HOPA affidavit have

21 no personal knowledge regarding the accuracy or reliability of the information set forth in

22 the surveys. Dkt. 264 at 2. The signers, however, had personal knowledge of the surveys

ORDER - 7

1 themselves and Plaintiffs have failed to identify a reason to question the accuracy of the

2 information contained therein. Therefore, even if the regulations required the board to

3 verify the accuracy of the surveys, Plaintiffs fail to identify evidence that creates a

4 question of fact for trial.

5

Sixth, Plaintiffs contend that RISA relied on unreliable information regarding

6 vacant properties. Dkt. 264 at 2. Again, Plaintiffs’ argument is based purely on

7 speculation, and they have failed to provide evidence of any specific error in the survey,

8 let alone sufficient errors that would drop the survey results below the 80% requirement.

9 Moreover, vacant houses are unable to speak for themselves and the surveyors were

10 justified in relying on neighbors’ statements and other indirect sources of information.

11 The regulation requires reliable evidence, not evidence that would be automatically

12 admissible in a court of law.

13

Finally, Plaintiffs request a 30-day extension to further evaluate the survey results.

14 Dkt. 264 at 2–3. The Court finds that Plaintiffs have failed to show sufficient need to

15 justify an extension. Therefore, the Court concludes that RISA is currently compliant

16 with HOPA and grants RISA’s motion on this issue.

17 C. Retaliation Claims

18

The FHA protects individuals from certain types of retaliatory conduct.

19 Specifically, the FHA provides that it is

20

unlawful to coerce, intimidate, threaten, or interfere with any person in the

exercise or enjoyment of, or on account of his having exercised or enjoyed,

21

or on account of his having aided or encouraged any other person in the

exercise or enjoyment of, any right granted or protected by [the Act].

22

ORDER - 8

1 42 U.S.C. § 3617.

2

To present a prima facie claim for retaliation, a plaintiff must show (1) protected

3 activity, (2) adverse action by defendant against plaintiff, and (3) a causal link between

4 the activity and the adverse action. See, e.g., Walker v. City of Lakewood, 272 F.3d 1114,

5 1128 (9th Cir. 2001). If plaintiff meets its burden, then the burden shifts to defendant to

6 show a legitimate non-retaliatory reason for the allegedly adverse action. Id. If the

7 defendant meets its burden of production, the burden of persuasion shifts back to the

8 plaintiff to show that the defendant’s proffered reason is not worthy of credence or that

9 the reason is mere pretext for a retaliatory action. Id.; see also Reeves v. Sanderson

10 Plumbing Prods., Inc., 530 U.S. 133, 143 (2000).

11

In this case, the Court has previously dismissed the majority of Plaintiffs’ asserted

12 acts of retaliation. In their current response, Plaintiffs state that they intend to proceed to

13 trial on three categories of retaliation claims as follows:

14

(1) invalid and illegal liens defendant has placed on plaintiffs’ properties,

(2) lawsuits defendant has filed against certain plaintiffs, where defendant

15

has not pursued legal action against similarly situated non-plaintiff

residents, and (3) actions intended to menace and intimidate the plaintiffs at

16

a September mediation in Winlock.

17 Dkt. 243 at 1. With regard to the actions at the mediation, Plaintiffs are attempting to

18 hold RISA accountable for the actions of its members. “[W]e do not want, and we do not

19 think Congress wanted, to convert every quarrel among neighbors in which a racial or

20 religious slur is hurled into a federal case.” Halprin v. Prairie Single Family Homes of

21 Dearborn Park Ass’n, 388 F.3d 327, 330 (7th Cir. 2004). The Court has already

22 dismissed similar claims based on quarrels among neighbors, and, similarly, the Court

ORDER - 9

1 dismisses these claims because there is no evidence that RISA or its board members

2 initiated, encouraged, or failed to prevent, after sufficient notice, the alleged actions of its

3 members. Therefore, the Court grants RISA’s motion on these claims.

4

With regard to the liens, there is no evidence of retaliatory motive. One must infer

5 the causal link that because RISA filed the liens, it must be retaliatory. Even if this

6 inference supports a prima facie case of retaliation, RISA has submitted evidence of a

7 legitimate reason for filing the liens because Plaintiffs have failed to pay RISA the

8 requested association dues. Once the burden shifts back to Plaintiffs, they have failed to

9 submit any evidence of pretext or show that RISA’s justification is not worthy of

10 credence. Therefore, the Court grants RISA’s motion on these claims.

11

With regard to the lawsuits, Plaintiffs’ claims are not properly supported by

12 evidence. Plaintiffs only speculate that they are being treated differently than other

13 similarly situated non-paying members. In fact, Charles Weaver declares that the liens

14 and lawsuits “happened both before and after the various resigned members became

15 plaintiffs in this litigation.” Dkt. 244, ¶ 5. Moreover, filing a lawsuit to enforce a lien for

16 unpaid sums is a legitimate action. The propriety of the lien and the repercussions for

17 filing invalid liens shall be addressed in those state court actions. In this action, however,

18 there is no evidence that the lawsuits state a prima facie case of retaliation. Therefore,

19 the Court grants RISA’s motion on this issue and its motion in total.

20 D. Unpaid Dues

21

The Court denied RISA’s first motion for summary judgment on the issue of

22 unpaid dues because questions of fact remained for trial. Dkt. 232. Questions of fact still

ORDER - 10

1 remain and summary judgment is not appropriate. For example, there is still a question

2 of fact whether RISA billed some Plaintiffs for services that Plaintiffs paid for

3 independently, such as garbage services, which would arguably be in violation of the

4 bylaws that approve billing for “services rendered.” Therefore, the Court denies RISA’s

5 motion on the issue of unpaid dues.

6 E. Punitive Damages

7

A plaintiff seeking punitive damages in a fair housing case must show that the

8 defendant acted with “reckless or callous indifference” for the fair housing rights of

9 others. See Fair Housing of Marin v. Combs, 285 F.3d 899, 906-07 (9th Cir. 2002)

10 (citing Smith v. Wade, 461 U.S. 30, 56 (1983)). In determining whether to impose

11 punitive damages, the fact finder will consider “an evaluation of the nature of the conduct

12 in question, the wisdom of some form of pecuniary punishment, and the advisability of a

13 deterrent” to future illegal conduct. Gore v. Turner, 563 F.2d 159, 164 (5th Cir. 1977).

14 Punitive damages may be awarded where the defendant ignored its duties under the law

15 or otherwise engaged in “knowledgeable inaction.” See Miller v. Apartments and Homes

16 of New Jersey, Inc., 646 F.2d 101, 111 (3d Cir. 1981); Badami v. Flood, 214 F.3d 994

17 (8th Cir. 2000); see also Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1 (1991).

18

Here, RISA argues that “[p]unitive damages are not appropriate in this case.” Dkt.

19 249 at 1. RISA asserts that the standard for punitive damages is a showing that defendant

20 acted out of actual malice or conduct sufficiently outrageous to be deemed equivalent to

21 actual malice. Id. at 4–5. While the law is clear in other contexts such as employment

22 discrimination, the law for punitive damages under the FHA is less clear. In fact, some

ORDER - 11

1 courts have allowed the jury to consider punitive damages simply because there was a

2 violation of the FHA. See, e.g., Alexander v. Riga, 208 F.3d 419, 424 (3rd Cir. 2000)

3 (“the discrimination itself is the harm . . . [and] the question of punitive damages [should

4 have been submitted] to the jury.”). Therefore, due to the uncertainty in this area of the

5 law and the apparently low bar to send punitive damage claims to a jury, the Court denies

6 RISA’s motion on the issue of punitive damages.

7

III. ORDER

8

Therefore, it is hereby ORDERED that RISA’s motion for summary judgment on

9 the 2013 Survey (Dkt. 257) and Plaintiffs’ retaliation claims (Dkt. 241) are GRANTED

10 and RISA’s motion for summary judgment on Plaintiffs claims for punitive damages

11 (Dkt. 249) and unpaid dues (Dkt. 251) are DENIED.

12

Dated this 4th day of March, 2014.

13 14

A

15

BENJAMIN H. SETTLE United States District Judge

16

17

18

19

20

21

22

ORDER - 12

 
 Case 3:09-cv-05409-BHS Document 288 Filed 07/07/14 Page 1 of 2

1

2

3

4

5 UNITED STATES DISTRICT COURT

6

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

7

8 RAYMOND T. BALVAGE,

9

Plaintiff,

10

v.

11 RYDERWOOD IMPROVEMENT AND SERVICE ASSOCIATION, INC.,
12
Defendant. 13

CASE NO. C09-5409 BHS
ORDER GRANTING STIPULATED MOTION TO DISMISS AND TO SHOW CAUSE

14 This matter comes before the Court on the parties’ stipulated motion to dismiss
15 (Dkt. 286).
16 On April 22, 2014, the parties filed the stipulate motion to dismiss requesting
17 dismissal of all claims except for pro se plaintiffs Bob and Diana White’s (the “Whites”)
18 claims because the Whites had filed for bankruptcy protection. Dkt. 286. The Court
19 GRANTS the motion as to all claims except for those involving the Whites.
20 With regard to the Whites’ claims, it appears that they have been discharged from
21 bankruptcy. See In re: White, Cause No. 13-47460BDL (Bankr. W.D. Wash. June 11,
22

ORDER - 1

Case 3:09-cv-05409-BHS Document 288 Filed 07/07/14 Page 2 of 2

1 (2014). No party has informed the Court regarding the status of the Whites’ claims since

2 the discharge. Therefore, the Court ORDERS any remaining party to show cause, if any

3 there is, why the Court should not dismiss the Whites’ claims with prejudice. Failure to

4 submit a response by July 25, 2014 will result is DISMISSAL with prejudice of the

5 Whites’ claims.

6

Dated this 7th day of July, 2014.

7 8

A

BENJAMIN H. SETTLE

9

United States District Judge

10

11

12

13

14

15

16

17

18

19

20

21

22

ORDER - 2

 
 Case 3:09-cv-05409-BHS Document 292 Filed 08/12/14 Page 1 of 1

1 UNITED STATES DISTRICT COURT

2

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

3

4 RAYMOND T. BALVAGE, et al.,

5

Plaintiffs,

6

v.

7 RYDERWOOD IMPROVEMENT AND SERVICE ASSOCIATION, INC.,
8
Defendant. 9

CASE NO. C09-5409 BHS
ORDER REQUESTING JOINT STATUS REPORT

10

This matter comes before the Court on the Court’s order to show cause (Dkt. 288), 11

Plaintiffs Bob White’s response (Dkt. 289), and Defendant Ryderwood Improvement and 12

Service Associations, Inc.’s response (Dkt. 290). 13

The Court has the reviewed the responses and the remainder of the file and 14

declines to dismiss Bob and Diana White’s claims for failure to prosecute. Therefore, the 15

Court requests that the parties meet and confer and submit a joint status report regarding 16

how they intend to proceed no later than August 22, 2014. 17

IT IS SO ORDERED. 18

Dated this 12th day of August, 2014.

19 20

A

21

BENJAMIN H. SETTLE

United States District Judge 22

ORDER

 
 Case 3:09-cv-05409-BHS Document 295 Filed 08/21/14 Page 1 of 4

1 Steven Goldstein
2 Richard D. Ross Betts, Patterson & Mines, P.S.
3 One Convention Place 701 Pike Street, Suite 1400
4 Seattle, WA 98101-3927 Phone: (206) 292-9988
5 Fax: (206) 343-7053 Email: sgoldstein@bpmlaw.com
6 Email: rross@bpmlaw.com Attorneys for Defendant
7

H: HONORABLE BENJAMIN SETTLE

8

9 UNITED STATES DISTRICT COURT

10

FOR THE WESTERN DISTRICT OF WASHINGTON

AT TACOMA

11

12

RAYMOND T. BALVAGE and DEBORAH

13 A. BALVAGE, husband and wife; CHARLES

E. WEAVER and SUSAN M. WEAVER,

NO. C09-5409 BHS

14 husband and wife; JOYCE MARIE ADAMS;

LUVERN HARLAND ALLEN; EDGAR

JOINT STATUS REPORT

15 AMES; JAMES ALVIN BAKER and DARLA

JEAN BAKER, husband and wife; RALPH

16 ALVIN BARFELL, JR.; SHARON MARIE

BANTA; RAY BODINE and JANIE KAY

17 BODINE, husband and wife; RICHARD

ANTHONY BRAGA, JR. and MARGARET

18 LOUISE BRAGA, husband and wife;

CHARLES THOMAS CALDWELL and

19 SANDI KAY CALDWELL, husband and

wife; LAREN WILLBUR COLEMAN and

20 PAMELA DENISE COLEMAN, husband and

wife; ALVIN DEE COLPITTS and

21 CORABELLE COLPITTS, husband and wife;

BETTY GENE DONOGHUE; ELIZABETH

22 ELAINE DUPREE; JOYCE ELAIN

FISCHER; JEANNETTE H. HEADEN;

23 GLENN RICHARD HUESTIS and CAROL

NADINE HUESTIS, husband and wife;

24 BARBARA JEAN JOY; MIRIAM

MARGARET KENNEDY-ALLEN; GERALD

25 BLAIR KOLB and ETHEL MAY KOLB

JOINT STATUS REPORT Cause No.: C09-5409 BHS
714283.1/082114 1022/61840140

- 1-

Betts Patterson Mines
One Convention Place Suite 1400 701 Pike Street Seattle, Washington 98101-3927
(206) 292-9988

Case 3:09-cv-05409-BHS Document 295 Filed 08/21/14 Page 2 of 4

1 husband and wife; ALFRED WESLEY LEACH and GLORIA EILEEN LEACH,
2 husband and wife; RAYMOND ERNEST MORRIS and CAROLYN L. MORRIS,
3 husband and wife; ARNOLD NADEAU; KAREN CAMPBELL; BOB PISTONE and
4 DORIS PISTONE, husband and wife; VERN POWELL and SHARON POWELL, husband
5 and wife; EARLEEN M. RUTHERFORD; CHARLES JOHN SANTINEAU; BARBARA
6 LOUISE PEPPER; LUCAS JOHN SHIMMIN; DON SMITH and DIANE SMITH, husband
7 and wife; DONALD NEIL STROUD and SHARON LEE STROUD, husband and wife;
8 WALTER GORDON WEST and JANET MARIE WEST, husband and wife; BEVERLY
9 WHITE; BOB WHITE and DIANE WHITE, husband and wife,
10 Plaintiffs,
11
vs.
12 RYDERWOODIMPROVEMENTAND
13 SERVICE ASSOCIATION, INC., a Washington non-profit corporation,
14
Defendant.
15

16
Pursuant to the Court's Order Requesting Joint Status Report, the only remaining claims 17
in this case, those brought by Prose Plaintiffs, Bob and Diane White, have been resolved. 18

19

20

21

22

23

24

25

JOINT STATUS REPORT Cause No.: C09-5409 BHS
714283.1/082114 1022/61840140

- 2-

Betts Patterson Mines
One Convention Place
Suite 1400
701 Pike Street
Seattle, Washington 98101-3927
(206) 292-9988

Case 3:09-cv-05409-BHS Document 295 Filed 08/21/14 Page 3 of 4

1

DATED this 21st day of August, 2014.

2

BETTS, PATTERSON & MINES, P.S.

3

4

By

Isf Steven Goldstein

5

Steven Goldstein, WSBA #11042

Richard D. Ross, WSBA #34502

6

Attorneys for Defendant

7

Pro Se Plaintiff

8

9

By

Is/ Bob White

10

Bob White

11

12

Pro se Plaintiff

13

14

By

Is/ Diane White

15

Diane White

16

17

18

19

20

21

22

23

24

25

JOINT STATUS REPORT Cause No.: C09-5409 BHS
714283.1/082114 1022/61840140

- 3-

Betts Patterson Mines
One Convention Place Suite 1400 701 Pike Street
Seattle, Washington 98101-3927 (206) 292-9988

Case 3:09-cv-05409-BHS Document 295 Filed 08/21/14 Page 4 of 4

1

CERTIFICATE OF SERVICE

2

I hereby certify that on the 21st of August, 2014, I electronically filed the foregoing

3 with the Clerk of the U.S. District Court for the Western District of Washington using the
4 CM/ECF system, which will send notification of such filing to The Honorable Benjamin H.
5 Settle and Pro se plaintiffs Bob and Diane White:
6

7 Plaintiffs ProSe
8 Bob and Diane White 312 Jackson Street
9 Ryderwood, WA 98581 10 bobwhitehelps@gmail.com

11 12

<-~/\ By______________~~~~~----------

13

Laraine Green, Legal Assistant to Steven Goldstein

14

Email: lgreen@bpmlaw.com

15

16

17

18

19

20

21

22

23

24

25

JOINT STATUS REPORT Cause No.: C09-5409 BHS
714283.1/082114 1022/61840140

- 4-

Betts Patterson Mines
One Convention Place Suite 1400
701 Pike Street
Seattle, Washington 98101-3927 (206) 292-9988

 
 Case 3:09-cv-05409-BHS Document 297 Filed 08/28/14 Page 1 of 3
Case 3:09-cv-05409-BHS Document 296 Filed 08/27/14 Page 1 of 4

Honorable B enjamin H. Settle

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF WASHINGTON

8

AT TACOMA

9 RAYMOND T. BALVAGE and DEBORAH A. BALVAGE, husband and wife, et al. ,
10 Plaintiffs,
11 vs.
12
RYDERWOODI~ROVEMENTAND
13 SERVICE ASSOCIATION, TNC. a Washington non-profit corporation,
14
Defendant. 15

N O. 3:09-CV-05409-BHS
STIPULATION AND ORDER OF DISMISSAL

16
STIPULATION 17
The parties hereby stipulate that this case has been settled as to claims brought by pro se
18 plaintiffs Bob and Diane White. Therefore, all prose plaintiffs' claims and the defendant's
19 counterclaims, can be dismissed with prejudice and without costs.
20

21

22

23

24

25

STIPULATION AND ORDER OF DISMISSAL
7 1J874. 1/082714 1621/61840140

- 1-

Betts Patterson Mines
One Convention Place Svile 1400
701 Pike Slrcet
Seollle. Washingion 98101 · 3927 (206) 292-9988

Case 3:09-cv-05409-BHS Document 297 Filed 08/28/14 Page 2 of 3
Case 3:09-cv-05409-BHS Document 296 Filed 08/27/14 Page 2 of 4

DATED this 27th day of August, 2014.

2 BETTS, PATTERSON & MINES, P.S.

Plaintiff Pro se

3

Is/ Steven Goldstein

Is/ Bob White

By____________________________ By____________________________

4

Steven Goldstein, WSBA #11 042

Bob White, Pro se plaintiff

5

Richard Ross, WSBA #34502

Attorneys for Defendant

6
Plaintiff Pro se 7

8

lsi Diane White
By____________________________

9

Diane White, Pro se plaintiff

10

11

ORDER

12

Pursuant to the foregoing Stipulation, this case is hereby dismissed with prejudice and

13 without costs as to claims brought by plaintiffs pro se Bob and Diane White and as to

14 defendant's counterclaims against plaintiffs pr

15

_ai_ DATED this

day of-\f\j~~~--~

16

17

18

19 Presented by: 20 BETTS, PATTERSON & MINES, P.S.

21

Is/ Steven Goldstein

22

By~--~~~--~~~------­
Steven Goldstein, WSBA #11 042

23

Richard Ross, WSBA #34502 Attorneys for Defendant

24

25

STIPULATION AND ORDER OF DISMISSAL
713874.11082714 1621/61840140

-2-

Betts Patterson Mines
One Convention Ploce
Suile 1400
701 Pike Slreel
Seollle. Washingto n 98 101 -3927
(206) 292-9988

Case 3:09-cv-05409-BHS Document 297 Filed 08/28/14 Page 3 of 3
Case 3:09-cv-05409-BHS Document 296 Filed 08/27/14 Page 3 of 4

Approved as to form; Notice

of Presentation waived: 2

Is! Bob White
3 By__________~~-------­

4

Bob White, Plaintiff pro se

5

Is/ Diane White By______________________

6

Diane White, Plaintiff pro se

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23
24

25

STIPULATION AND ORDER OF DISMISSAL
713874.1/082714 1621/61840140

-3-

Betts Patterson Mines
One ConvenHon Place Suile 1400 701 Pike Street
Seoltle. woshinglon 98101-3927 (206) 292-9988

 
 FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

RAYMOND T. BALVAGE and DEBoRAH A. BALVAGE, husband and wife; CHARLES E. WEAVER and SusAN M. WEAVER, husband and
wife; JoYcE MARIE ADAMs; LVVERN
liARLAND ALLEN; EooAR AMEs; JAMEs ALVIN BAKER and DARLA JEAN BAKER, husband and wife; RALPH ALVIN BARFELL, JR.; SHARON MARIE BANTA; RAY BoDINE and JANIE KAY BoDINE, husband and wife; RICHARD ANrnONY BRAGA, JR. and MARGARET LoUISE BRAGA, husband and wife; CHARLEs THOMAS CALDWELL and SANDI KAY CALDWELL, husband and wife;
LAREN WILLBUR CoLEMAN and
PAMELA DENISE COLEMAN, husband and wife; ALVIN DEE COLPITTS and CORABELLE COLPITTS, husband and wife; BETTY GENE DONOGHUE; ELIZABETH ELAINE DuPREE; JOYCE ELAIN FiscHER; JEANNETTE H. HEADEN; GLENN RICHARD HUESTIS and CAROL NADINE HUESTIS, husband and wife; BARBARA JEAN Joy; MriuAM MARGARET KENNEDYALLEN; GERALD BLAIR KoLB and

Nos. 10-35714 10-35970
D.C. No. 3:09-cv-05409-BHS
OPINION

5413

5414

BALVAGE V. RYDERWOOD IMPROVEMENT

ETHEL MAY KoLB, husband and wife; ALFRED WESLEY LEACH and GwRIA EILEEN LEACH, husband and wife; RAYMOND ERNEST MoRRis and CAROLYN L. MoRRis, husband and wife; ARNow NADEAu; KAREN CAMPBELL; BoB PISTONE and DORIS PISTONE, husband and wife; VERN PoWELL and SHARON POWELL, husband and wife; EARLEEN M. RUTIIERFoRD; CHARLES JoHN SANTINEAU; BARBARA LoursE PEPPER; LucAS JoHN SinMMIN; DoN SMITH and DIANE SMITH, husband and wife; DONALD NEIL STROUD and SHARON LEE STROUD, husband and wife; WALTER GoRDoN WEsT and JANET MARIE WEST, husband and wife; BEVERLY Wmrn; BoB WHITE and DIANE WlllTE, husband and wife,
Plaintiffs-Appellees,
v.
RYDERWOOD IMPROVEMENT AND
SERVICE AssociATION, INc., a Washington non-profit corporation,
Defendant-Appellant.
Appeal from the United States District Court for the Western District of Washington
Benjamin H. Settle, District Judge, Presiding
Argued and Submitted January 14, 2011-Seattle, Washington

BALVAGE V. RYDERWOOD IMPROVEMENT
Filed April 27, 2011

5415

Before: Susan P. Graber and Raymond C. Fisher, Circuit Judges, and Consuela B. Marshall, District Judge.*

Opinion by Judge Fisher

*The Honorable Consuelo B. Marshall, Senior United States District Judge for the Central District of California, sitting by designation.

BALVAGE V. RYDERWOOD IMPROVEMENT

5417

COUNSEL
Steven Goldstein (argued), Richard Ross and Victoria M. Pond, Betts, Patterson & Mines, P.S., Seattle, Washington, for the defendant-appellant.

5418

BALVAGE V. RYDERWOOD IMPROVEMENT

Joseph E. Lynam (argued) and Abraham K. Lorber, Lane Powell PC, Seattle, Washington, for the plaintiffs-appellees.

Thomas E. Perez, Assistant Attorney General, Dennis J. Dimsey and Jennifer Levin Eichhorn, Attorneys, U.S. Department of Justice, Civil Rights Division, Appellate Section, Washington, D.C., for amicus curiae Secretary of the U.S. Department of Housing and Urban Development.

OPINION
FISHER, Circuit Judge:
We hold that a residential co=unity that has continuously operated as a retirement co=unity for persons age 55 or older can qualify for the housing for older persons exemption from the Fair Housing Act's prohibition on familial status discrimination by establishing that it currently satisfies the exemption's three statutory and regulatory criteria at the time of the alleged violation, even if the co=unity enforced age restrictions when it first achieved compliance with the exemption's age verification requirement.
BACKGROUND
I.
In 1988, Congress amended the Fair Housing Act (FHA) and prohibited housing discrimination on account of familial status. See Fair Housing Amendments Act of 1988 (FHAA), Pub. L. No. 100-430, 102 Stat 1619. As amended by the FHAA, the FHA broadly prohibits discrimination against families with children in connection with the sale and rental of housing. See 42 U.S.C. §§ 3604(a)-(e), 3605, 3606, 3617, 3631.1
1" 'Familial status' means one or more individuals (who have not attained the age of 18 years) being domiciled with ... a parent or another

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5419

At the same time, Congress recognized the effect these prohibitions would have on retirement co=unities and created exemptions in the FHA for qualified "housing for older persons." Id. § 3607(b). The housing for older persons exemptions permit co=unities satisfying certain requirements to discriminate on the basis of familial status. See id. The exemptions apply to three types of housing, including, as relevant here, housing for persons 55 years of age or older. See id. § 3607(b)(2)(C).2

The familial status provisions of the FHA, including the housing for older persons exemptions, became effective in March 1989. See id. § 3601 note (quoting FHAA § 13(a)). In January 1989, the Department of Housing and Urban Development (HUD) issued fmal regulations implementing the exemptions. See Implementation of the Fair Housing Amendments Act of 1988, 54 Fed. Reg. 3232, 3290-3291 (Jan. 23,
1989); see also 24 C.F.R. §§ lOO.lO(b), 100.300-100.304
(1991). A few years later, in 1995, Congress passed the Housing for Older Persons Act (HOPA), Pub. L. No. 104-76, § 2, 109 Stat. 787, which revised the 55 or older exemption.

Under the FHA, as amended by the FHAA and HOPA, housing qualifies for the 55 or older exemption (''the HOPA exemption") when it is "intended and operated for occupancy by persons 55 years of age or older" and three requirements are satisfied:

person having legal custody of such individual or individuals; or . . . the designee of such parent or other person having such custody, with the written permission of such parent or other person." 42 U.S.C. § 3602(k). The protections against familial status discrimination also apply to "any person who is pregnant or is in the process of securing legal custody of any individual who has not attained the age of 18 years." Id.
2Although not relevant here, the exemptions also include (I) housing provided under certain state or federal programs specifically designed and operated to assist elderly persons and (2) housing intended for, and solely occupied by, persons 62 years of age or older. See 42 U.S.C. § 3607(h)(2)(A)-(B).

5420

BALVAGE V. RYDERWOOD IMPROVEMENT

(i) at least 80 percent of the occupied units are occupied by at least one person who is 55 years of age or older;

(ii) the housing facility or community publishes and adheres to policies and procedures that demonstrate the intent required under this subparagraph; and

(iii) the housing facility or community complies with rules issued by the Secretary for verification of occupancy, which shall-

(I) provide for verification by reliable surveys and affidavits; and

(II) include examples of the types of policies and procedures relevant to a determination of compliance with the requirement of clause (ii). Such surveys and affidavits shall be admissible in administrative and judicial proceedings for the purposes of such verification.
42 U.S.C. § 3607(b)(2)(C).3 It is the third of these criteriathe requirement that the community verify occupancy "by reliable surveys and affidavits" - that is at issue here. In 1999, HUD published final regulations implementing HOPA.

"until 1995, when Congress adopted HOPA, a connnunity clanning the 55 or older exemption had to demonstrate ''the existence of significant facilities and services specifically designed to meet the physical or social needs of older persons, or if the provision of such facilities and services is not practicable, that such housing is necessary to provide important housing opportunities for older persons." 42 U.S.C. § 3607(b)(2)(C)(i) (1994). HOPA eliminated that requirement and replaced it with the verification requirement now codified at 42 U.S.C. § 3607(b)(2)(C)(iii). See Taylor v. Rancho Santa Barbara, 206 F.3d 932, 935 (9th Cir. 2000); Implementation of the Housing for Older Persons Act of 1995, 64 Fed. Reg. 16,324, 16,324 (Apr. 2, 1999).

BALVAGE V. RYDERWOOD IMPROVEMENT

5421

See Implementation of the Housing for Older Persons Act of 1995, 64 Fed. Reg. 16,324, 16,329-16,332 (Apr. 2, 1999); 24 C.F.R. §§ 100.304-100.308. HUD adopted a regulation, 24 C.F.R. § 100.307, specifying the actions a community must take to satisfy the verification requirement mandated by 42 U.S.C. § 3607(b)(2)(C)(iii). Section 100.307 states:

(a) In order for a housing facility or community to qualify as housing for persons 55 years of age or older, it must be able to produce, in response to a complaint filed under this title, verification of compliance with§ 100.305 [i.e., at least 80 percent of its occupied units must be occupied by at least one person 55 years of age or older] through reliable surveys and affidavits.

(b) A facility or community shall, within 180 days of the effective date of this rule, develop procedures for routinely determining the occupancy of each unit, including the identification of whether at least one occupant of each unit is 55 years of age or older. Such procedures may be part of a normal leasing or purchasing arrangement.

(c) The procedures described in paragraph (b) of this section must provide for regular updates, through surveys or other means, of the initial information supplied by the occupants of the housing facility or community. Such updates must take place at least once every two years. A survey may include information regarding whether any units are occupied by persons described in paragraphs (e)(l), (e)(3), and (e)(4) of§ 100.305.

(d) Any of the following documents are considered reliable documentation of the age of the occupants of the housing facility or community:

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BALVAGE V. RYDERWOOD IMPROVEMENT
(1) Driver's license;

(2) Birth certificate;

(3) Passport;

(4) hnmigration card;

(5) Military identification;

(6) Any other state, local, national, or international official documents containing a birth date of comparable reliability; or

(7) A certification in a lease, application, affidavit, or other document signed by any member of the household age 18 or older asserting that at least one person in the unit is 55 years of age or older.

(e) A facility or community shall consider any one of the forms of verification identified above as adequate for verification of age, provided that it contains specific information about current age or date of birth.

(f) The housing facility or community must establish and maintain appropriate policies to require that occupants comply with the age verification procedures reqnired by this section.

(g) If the occupants of a particular dwelling unit refuse to comply with the age verification procedures, the housing facility or community may, if it has sufficient evidence, consider the unit to be occupied by at least one person 55 years of age or older. Such evidence may include:

BALVAGE V. RYDERWOOD IMPROVEMENT
(1) Government records or documents, such as a local household census;

5423

(2) Prior forms or applications; or

(3) A statement from an individual who has personal knowledge of the age of the occupants. The individual's statement must set forth the basis for such knowledge and be signed under the penalty of perjury.

(h) Surveys and verification procedures which comply with the requirements of this section shall be admissible in administrative and judicial proceedings for the purpose of verifying occupancy.

(i) A sununary of occupancy surveys shall be available for inspection upon reasonable notice and request by any person.

24 C.F.R. § 100.307. The regulation requires communities to conduct surveys of residents at least once every two years to verify that at least 80 percent of its occupied units are occupied by at least one person 55 years of age or older. See id. § 100.307(a), (c). The surveys must verify the ages of residents by using reliable documents or affidavits. See id. § 100.307(d), (e), (g). S11mmaries of the surveys must be made available to the public upon request. See id. § 100.307(i). And the surveys themselves must be maintained and produced in any administrative or judicial proceeding in which the community asserts the 55 or older exemption as a defense to a charge ofdiscrimination. See id. § 100.307(a), (h).4

40nly the summary of the surveys must be made available to the public. See 24 C.F.R. § 100.307(i); 64 Fed. Reg. at 16,328 ("Only the overall survey summary is required to be available for review, not the supporting documeotation."). The individual surveys, affidavits aod copies of documeotation, on the other hand, should be maintained in community files in

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The 1999 regulations also established a one-year transition period, permitting communities that did not satisfY the 80 percent occupancy requirement at the time the regulations were issued to claim the exemption by satisfYing the intent and verification requirements, see 42 U.S.C. § 3607(b)(2)(C)(ii)-(iii), and reserving unoccupied units for residents 55 and older. See 24 C.F.R. § 100.305(e)(5). During the transition period, if a community demonstrated an intent to be housing for persons 55 years or older and complied with the verification requirement, it could reserve unoccupied units for occupancy by at least one person who was 55 years or older and not violate the FHA's prohibitions on discrimination on the basis of familial status. See id. The transition period ended on May 3, 2000. See id.; 64 Fed. Reg. at 16,324."

The regulations did not address how an existing community could obtain exempt status after expiration of the transition period. HUD touched on that issue, however, in a March 2006

the event they must be produced in response to a charge of discrimination. See 24 C.F.R. § 100.307(a), (b); 64 Fed. Reg. at 16,327 ("A summary of the information gathered in support of the occupancy verification should be retained for confirmation purposes. Copies of supporting information gathered in support ofthe occupancy verification may be retained in a separate file with limited access, created for the sole purpose of complying with HOPA, and not in general or resident files that may be widely accessible to employees or other residents. The segregated documents may be considered confidential and not generally available for public inspection. HUD, state or local fair housing enforcement agencies, or the Department of Justice may review this documentation during the course of an investigation.").
'If, at the end of the transition period, the community satisfied the 80 percent occupancy requirement and continued to satisfy the other two HOPA criteria, it could continue to operate as an exempt community. If the community could not satisfy the 80 percent threshold at the end of the transition period, it could no longer claim the exemption or discriminate against families with children, but it would not be liable for having reserved unoccupied units for persons 55 or older during the one-year transition period. See 64 Fed. Reg. at 16,326.

BALVAGE V. RYDERWOOD IMPROVEMENT

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memorandum from Bryan Greene, HUD's Deputy Assistant Secretary for Enforcement and Programs, to HUD regional directors. Greene's memorandum ("HUD's 2006 policy guidance") explains that communities can obtain exempt status after the transition period by achieving compliance with each of the statutory and regulatory requirements, including the 80 percent occupancy requirement. Beyond the transition period, however, communities can no longer achieve compliance by reserving unoccupied units for older residents or otherwise discriminating on the basis of familial status. The guidance explains:

[A]n existing community or facility can convert to "housing for older persons" if 80 percent of its occupied units become occupied by at least one person 55 years of age of older. Unlike during the transition period, housing providers cannot discriminate against families with children in order to achieve 80 percent occupancy by persons 55 or older. In other words, a community of facility cannot reserve unoccupied units for persons 55 or older, advertise itself as housing for older persons, or evict families with children in order to reach the 80 percent threshold. If a family with children seeks to occupy a vacant unit in an existing facility before it has met all of the requirements necessary to become housing for older persons, the community or facility must permit the family to live there. Additionally, the facility may not make existing families with children feel unwelcome or otherwise encourage those families to move. While the facility or community may not take any measures deliberately designed to discourage families with children from continuing to reside in the community, nothing prevents the offering of positive incentives that might lead some families to seek housing elsewhere. If the community or facility achieves the 80 percent threshold, without discriminating against families with children, it may then

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BALVAGE V. RYDERWOOD IMPROVEMENT

publish and adhere to policies and procedures that demonstrate an intent to provide housing for persons 55 years or older and comply with verification of occupancy rules. The facility or community cannot publish such policies or procedures in advance of meeting the 80 percent threshold (without discrimination) as such policies and procedures would have a chilling impact upon potential applicants or current occupants who are families with children.

Memorandum, Conversion to Housing for Older Persons Under the Fair Housing Act and the Housing for Older Persons Act of 1995, at 2 (Mar. 6, 2006) (emphasis in original).

II.

Ryderwood is a residential community located in Cowlitz County, Washington. It currently consists of approximately 270 single-family homes. It was established in 1953 "as a community to be occupied by and for the use and benefit of persons who are bona fide recipients of a pension or retirement annuity." In 1975, the Ryderwood Improvement and Service Association (RISA), which serves a role comparable to a homeowners' association for the community's residents, adopted amended bylaws limiting ownership and residence in Ryderwood to persons age 55 or older. These 1975 rules state:

The qualifications for ownership or purchase of a home within [Ryderwood] are:

Must be a bona-fide recipient of an annuity or a pension.

Must not be less than fifty-five years of age[.]

Must have no additional, permanent occupants of the home, (other than the spouse) who do not meet the above requirements. (Exceptions to the last require-

BALVAGE V. RYDERWOOD IMPROVEMENT

5427

ment may be made by the Board of Trustees in the event that health or personal care of either party justifies such permission.)

The plaintiffs are 54 residents of Ryderwood. They filed
this action against RISA in July 2009, alleging that the age
restrictions imposed by RISA violate the FHA and that RISA
has never satisfied the requirements of the HOPA exemption.
Second Am. Compl. mf 72-73.1 They sought nominal and
punitive damages, attorney's fees and costs, declaratory relief
and an injunction barring RISA from enforcing rules that dis-
criminate against families with children. Id. mf 75, 81.

The parties filed cross-motions for partial summary judgment. The plaintiffs argued that RISA could not avail itself of the HOPA exemption because it failed to properly "convert" to exempt status. Relying on HUD's 2006 policy guidance, they argued that a community that did not achieve compliance with all of the requirements of the HOPA exemption by the end of the transition period could obtain the benefit of the exemption only by "converting" to exempt status. They argued that a community could permissibly "convert" to exempt status only by achieving compliance with the exemption's requirements without engaging in familial status discrimination. Here, the plaintiffs argued, RISA first attempted to "convert" to exempt status in 2006 or 2007, when it first sought to comply with the verification requirement in 42 U.S.C. § 3607(b)(2)(C)(iii) and 24 C.F.R. § 100.307. They argued that any attempt to convert to exempt status at that time was ineffective because, as RISA admits, RISA was then restricting ownership and residence in Ryderwood to persons age 55 or older. The plaintiffs argued that RISA never properly "converted" to exempt status and thus cannot claim the benefit of the exemption. They contended that, "because

6Among other things, the plaintiffs claim that they are injured because RISA's age restrictions preclude them from marketing their homes for sale to potential buyers without restriction.

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BALVAGE V. RYDERWOOD IMPROVEMENT

RISA has never successfully converted to HOPA compliance [by achieving compliance without engaging in discrimination], RISA's discriminatory conduct constitutes a violation of the FHA." Pis.' Mot. Partial Summ. J. 13; see also Pis' Reply Supp. Mot. Summ. J. 2 ("Plaintiffs assert RISA is not HOPA compliant presently because it wrongfully discriminated against families with children while attempting to convert to HOPA compliance.").

In its opposition to plaintiffs' motion, and its own motion for partial s••mmary judgment, RISA argued that it was permitted to rely on the HOPA exemption so long as it established that it was in compliance with each of the exemption's requirements at the time the alleged discriminatory housing practice occurred, irrespective of whether it first achieved compliance with those requirements without discriminating. RISA contended that "a community is entitled to rely on the exemption if in compliance as of the date of the alleged act of discrimination." Defs.' Opp'n Pl.'s Mot. Partial Summ. J. 18.

RISA also argued that it has satisfied each of the three requirements of the HOPA exemption at all relevant times:

1. 80 Percent Occupancy. The FHA requires a community claiming the HOPA exemption to show that "at least 80 percent of the occupied units are occupied by at least one person who is 55 years of age or older." 42 U.S.C. § 3607(b)(2)(C)(i). RISA argued that it has satisfied this requirement through an age verification survey that it completed in September 2007. That survey found that there were 273 available total housing units in Ryderwood, that 25 of those units were either vacant or unverifiable and that 248 housing units were occupied by at least one person age 55 or older. Thus, according to RISA's survey, over 90 percent of the available units were occupied by persons 55 years of age or older on that date.

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5429

2. Policies and Procedures Demonstrating an Intent to Operate as a 55 or Older Community. The FHA also requires a community to show that ''the housing facility or community publishes and adheres to policies and procedures that demonstrate the intent" to operate as a community for persons 55 or older. /d. § 3607(b)(2)(C)(ii). RISA argued that it has satisfied this requirement by enforcing age restrictions and posting signs throughout the community stating that residency is limited to those 55 and older.

3. Verification by Reliable Surveys and Affidavits. RISA also argued that it has satisfied the requirement for verifying occupancy "by reliable surveys and affidavits." Id. § 3607(b)(2)(C)(iii)(I). RISA contended that it completed a survey of all residents in September 2007. The survey entailed "a request for each resident to show they met the 55+ condition by providing a drivers license, birth certificate, passport, and/or a state identification card." Defs.' Mot. Partial Summ. J. 22.

RISA also argued that it satisfied the verification requirement before 2007 because, although no age verification surveys were conducted, it "engaged in less formalized processes that were equally effective." Id. RISA presented evidence that it maintained and ''regularly updat[ed] an active rolodex that records each residence by address and the current identi[t]ies of each resident." DeBriae Summ. J. Dec!. '1[18. The rolodex cards include notations of residents' dates of birth. RISA also maintained "a Ryderwood phone book, which lists all residents in Ryderwood." /d. '1[19.

In the event that a new resident moves to Ryderwood, this information would be reflected in our annual phone list update, which would then be reflected in RISA's files. If this person was not known to us or not a member, a volunteer from RISA would stop at that home and ask them to join

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RISA which, since 1996, has included requiring them to verify their age.

Id. In addition, when properties in Ryderwood are sold, RISA asks title companies ''to inform the buyers that they need to contact the RISA office and to sign a membership certificate." Id. '1[20.

The plaintiffs challenged the adequacy ofRISA's September 2007 survey in their opposition to RISA's motion for partial summary judgment. They asserted a number of flaws in the survey, arguing that the survey therefore failed to satisfy the FHA's statutory and regulatory requirements.
m.

The district court granted partial summary judgment to the plaintiffs and denied RISA's motion for partial summary judgment. The court accorded deference to HUD's 2006 policy guidance under Auer v. Robbins, 519 U.S. 452, 461 (1997), which holds that judicial deference is owed to an agency's interpretation of its own regulations. The court agreed with the plaintiffs that the guidance bars a defendant from qualifying for the HOPA exemption unless the community first achieved compliance with the exemption's requirements without discriminating against families with children. The court ruled that "[t]he memo is clear that under the regulations, once the transition period ended in May of 2000, any existing community seeking to comply with the HOPA is required to cease discrimination during the period of gaining compliance." Order Granting Mot. Partial Summ. J. June 4, 2010, at 12-13. The court ruled that RISA could not claim the HOPA exemption because it continued to discriminate while attempting to comply with the verification requirements.

In attempting to comply with the HOPA requirements [by completing an age verification survey in 2007], RISA admits that it ... never ceased discrimi-

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5431

nating against persons under the age of fifty-five. Therefore, the Court concludes that RISA is not entitled to summary judgment on its affumative defense that it is compliant with the HOPA.

Id. at 13 (citation omitted). Having rejected RISA's HOPA defense, the court concluded that RISA's rules restricting sales of homes in Ryderwood violated the FHA. The court did not address the plaintiffs' alternative argument that RISA did not qualify for the HOPA exemption because the 2007 survey failed to satisfy the age verification requirements set out in § 3607(b)(2)(C)(iii) and 24 C.F.R. § 100.307. The district court subsequently granted the plaintiffs' motion for a preliminary injunction, ordering RISA to "immediately cease any and all enforcement of age restrictions on the sale, rental, or residency of homes in Ryderwood." Order Granting Prelim. lnj. Mot. Aug. 11, 2010, at 5.

RISA timely appealed the preliminary injunction order. The district court also certified its summary judgment order for interlocutory appeal, and we granted RISA permission to appeal. See 28 U.S.C. § 1292(b). We also granted RISA's motion for a stay of the injunction pending appeal and invited the Secretary of HUD to file an amicus brief. We are grateful to the Secretary for having done so.

STANDARD OF REVIEW
We review de novo a district court's grant or denial of a motion for partial summary judgment. See Aguilera v. Alaska Juris F/V, O.N 569276, 535 F.3d 1007, 1009 (9th Cir. 2008) (denial); Dare v. California, 191 F.3d 1167, 1171 (9th Cir. 1999) (grant). We review for an abuse of discretion the district court's grant of a preliminary injunction. See Nike, Inc. v. McCarthy, 379 F.3d 576, 580 (9th Cir. 2004).

We defer to HUD's reasonable interpretation of the FHA. See Meyer v. Holley, 537 U.S. 280, 287-88 (2003); Harris v.

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BALVAGE V. RYDERWOOD IMPROVEMENT

ltzhaki, 183 F.3d 1043, 1051-52 (9th Cir. 1999). "[T]he agency is entitled to further deference when it adopts a reasonable interpretation of regulations it has put in force." Barrientos v. 1801-1825 Morton LLC, 583 F.3d 1197, 1214 (9th Cir. 2009) (quoting Fed. Express Corp. v. Holowecki, 552 U.S. 389, 397 (2008) (internal quotation marks omitted)). "[W]e accept the agency's position unless it is 'plainly erroneous or inconsistent with the regulation.' " Fed. Express Corp., 552 U.S. at 397 (quoting Auer, 519 U.S. at 461). "Further, an agency's litigation position in an amicus brief is entitled to deference if there is 'no reason to suspect that the interpretation does not reflect the agency's fair and considered judgment on the matter.'" Barrientos, 583 F.3d at 1214 (quoting Auer, 519 U.S. at 462). Finally, HUD's "interpretive policy statements are at least 'entitled to a measure of respect under the less deferential Skidmore standard.' " Id. (quoting Fed. Express Corp., 552 U.S. at 399). In interpreting the HOPA exemption, we bear in mind that "[e]xemptions from the Fair Housing Act are to be construed narrowly, in recognition of the important goal of preventing housing discrimination." United States v. City ofHayward, 36 F.3d 832, 837 (9th Cir. 1994) (quoting Massaro v. Mainlands Section I & 2 Civic Ass 'n, 3 F.3d 1472, 1475 (lith Cir. 1993) (internal quotation marks omitted)).

DISCUSSION
RISA does not dispute that it engages in conduct that, unless exempt, constitutes unlawful familial status discrimination under the FHA. RISA restricts ownership and residence in Ryderwood to persons who are 55 years of age or older, practices that would violate several provisions of the FHA. See 42 U.S.C. § 3604(a)-(d). The sole issue, therefore, is whether RISA is exempt from the FHA's prohibitions on familial status discrimination under one of the housing for older persons exemptions set out in § 3607(b). RISA relies exclusively on the 55 or older exemption (''the HOPA exemption"). See id. § 3607(b)(2)(C). As the HOPA exemption is an

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5433

affirmative defense, RISA bears the burden of establishing that Ryderwood satisfies each of the HOPA requirements. See Massaro, 3 F.3d at 1475; Gibson v. Cnty. ofRiverside, 181 F. Supp. 2d 1057, 1076 (C.D. Cal. 2002); 64 Fed. Reg. at 16,325. RISA must show that it satisfied the HOPA requirements at the time that the alleged discriminatory housing practice occurred.7

The district court concluded that RISA does not qualify for the HOPA exemption with respect to any time between the end of the transition period in May 2000 and the present. We agree in part and disagree in part with that conclusion. The court properly concluded that RISA did not qualify for the HOPA exemption between May 2000 and September 2007, when RISA completed its first HOPA verification survey, because during that time RISA did not verify by reliable surveys and affidavits - or through other adequate means that at least 80 percent of its occupied units were occupied by at least one person who was 55 years of age or older. See 42 U.S.C. § 3607(b)(2)(C)(iii). The court erred, however, when it concluded that RISA was barred from availing itself of the exemption beginning in September 2007, when it completed the initial verification survey, merely because it had failed to "convert" to exempt status without engaging in familial status discrimination.

7See 24 C.F.R § 100.304(a) (explaining that "[h]ousing qualifies for this exemption if ... the housing community ... complied with the HUD regulations in effect at the time of the alleged violation" (emphasis added)); 64 Fed. Reg. at 16,331 (explaining that the 80 percent "occupancy requirement must be met at the time ofany alleged violation ofthe Ad' (emphasis added)); HUD, Questions and Answers Concerning the Final Rule hnplementing the Housing for Older Persons Act of 1995, at 13 ("If an individual files a complaint based on familial status and the housing community ... claims the exemption as a defense, ... [t]he community . . . has the burden of proving that it was in compliance with HOPA requirements on the date of occurrence of the alleged act or incident of discrimination." (emphasis added)).

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I. Compliance Between May 2000 and September 2007

[1] To qualify for HOPA's affmnative defense, a community must satisfy all three statutory and regulatory requirements. See Hayward, 36 P.3d at 837; see also 42 U.S.C. § 3607(b); 24 C.P.R. §§ 100.304-100.307.8 Between May 2000 and September 2007, RISA did not satisfy one of these requirements - the obligation to verify by reliable surveys and affidavits that at least 80 percent of Ryderwood's occupied units were occupied by at least one person who was 55 years of age or older. See 42 U.S.C. § 3607(b)(2)(C)(iii); 24 C.P.R. § 100.307.

RISA did not perform verification surveys between 2000 and 2006. With respect to 2000-2004, RISA concedes that it did not conduct surveys. See Opening Brief 2 ("RISA does not dispute that in the years 2000-04, it failed to conduct a formal 'HOPA survey' to verify Ryderwood residents' ages, as HOPA regulations provide ....").With respect to 20052006, RISA contends that it did conduct a survey, but has declined to place evidence of the 2006 survey in the record, instead relying exclusively on the September 2007 survey to establish its compliance with HOPA. We construe RISA's actions as a concession that the 2006 survey does not satisfy HOP A.

RISA nonetheless argues that it satisfied the age verification requirement between 2000 and 2006 because, although it did not conduct adequate verification surveys during that period, it "engaged in less formal verification processes that were equally effective." Opening Br. 28. RISA describes these efforts as follows:

"In Hayward, we applied the pre-HOPA version of the 55 or older
exemption. The same principle - that a community must satisfy all three statutory and regulatory requirements tu qualify for the exemption applies equally tu the current version of the exemption, as the plain text of the statute and regulations dictate.

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5435

Every home in Ryderwood is subject to the bylaws and deed conditions that require all owners to abide by the 55 and over provision. RISA requires every homeowner to join RISA, and to confirm his or [her] age upon joining. RISA regularly updates its rolodex of all families and its annual neighborhood phone book. This multi-faceted process of verification complemented the covenants and bylaws [that restrict Ryderwood to persons 55 or older].

/d.

These verification efforts fall short of the statutory requirements. To satisfy HOPA's verification requirement, a community must verify the age of its residents at least once every two years; the verification must cover all housing units in the community; residents' ages must be verified using reliable documents; a record of the verification, including copies of the relevant documentation, must be maintained in the community's files; and the community must be able to produce that record in response to a complaint of discrimination. See 24 C.F.R. § 100.307(a)-(e). Whether considered individually or collectively, the verification efforts described by RISA the rolodex cards and RISA membership forms - do not satisfy these criteria.

1. The Rolodex. RISA apparently maintains a rolodex card for each home in the Ryderwood community. Based on our review of the four sample cards RISA has included in the excerpts of record, we infer that each card contains a list of household residents and information about their dates of birth.

[2] These cards do not satisfy HOPA, however. First, they
provide current information on Ryderwood residents, rather
than providing a record of verifications that should have been conducted biennially between 2000 and 2006. RISA cannot rely on current rolodex information to establish that it verified the ages of Ryderwood's residents in 2000, 2002, 2004 or

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2006 - especially when no claim has been made that any such verifications actually occurred. Second, although the cards include information about residents' ages, RISA does not contend that this information rests on reliable documentation, such as driver's licenses, birth certificates, passports and signed certifications, as § 100.307(d) requires.

2. RISA Membership Forms. RISA also argues that its membership forms satisfy the HOPA verification requirement between 2000 and 2006. RISA explains that it has continuously required Ryderwood homeowners to join its association. To become members, residents are required to complete and sign a membership form. Since 1996, that form has required residents to include information regarding their ages. RISA contends that the existence of these forms is adequate to establish that it verified Ryderwood's compliance with the occupancy requirement at all times between 2000 and 2006.

[3] We disagree. Verifications, which must take place at least once every two years, occur at fixed points in time. To satisfy the requirement, a commuuity must do more than collect some data over some period of time. It must collect complete data for all residences. The data must be current (as of the time of the verification). And the commuuity must compile the data: the community must show that it actually used the data to verify that the commuuity in fact satisfied HOPA's 80 percent occupancy requirement at the time of the verification. Here, we have no basis to conclude that the membership forms covered all residences or that they provided current information at any time between 2000 and 2006. See Brief of the Secretary of the U.S. Department of Housing and Urban Development as Amicus Curiae ("HUD Br.") 22 ("Requiring new residents to join RISA and purportedly attest to their age does not establish that all members or an occupant of all households have signed this verification, nor has RISA so claimed.... Notwithstanding the bylaws' requirement that homeowners be at least 55 years old, RISA membership forms dated from 1990-1992 did not specifically require that

BALVAGE V. RYDERWOOD IMPROVEMENT

5437

a resident report his or her age."). Furthermore, even if the membership forms contained complete and current information, at no time between 2000 and 2006 did RISA use the information to verify that the occupancy requirement was satisfied. We agree with the HUD Secretary that "[t]he mere possession of various records collected over the years ... , without more, is inadequate to satisfy the verification obligation. A community must collate information from its files to assess whether, in fact, it has verifiable data of all current occupants and it satisfies the 80% occupancy requirement." Id. at 20-21. Here, RISA "has not shown that it has compiled a list of RISA members and compared [the membership] data with occupants for any given year to verify that the 80% occupancy requirement was met." /d. at 22. Merely requiring residents to fill out membership forms, "absent any compilation of data, is . . . insufficient to meet the verified survey requirement." /d.

[4] We accordingly agree with HUD that "RISA's pre2007 efforts fail to satisfy HOPA's age verification requirements." Id. In doing so, we do not disagree with RISA's contention that the HOPA verification requirement may be satisfied by means other than conducting a survey: HUD's regulations provide that a community may verify occupancy "through surveys or other means." 24 C.P.R. § 100.307(c) (emphasis added)." The means employed, however, must satisfy the minimum criteria established by the statute and regulations. The efforts undertaken by RISA between 2000 and 2006 do not do so. (Nor were they designed to do so. See DeBriae R. 30(b)(6) Dep. 31:3-19, Feb. 12, 2010 (testifying that it was not until spring 2006 that RISA even decided to comply with the HOPA requirements).) The district court thus

9Although other means of verification are permissible, a survey of occupants "is the most effective means" of collecting reliable data. HUD Br. 20. "Direct and timely communication with current occupants ensures that a community has verifiable data since the occupants themselves will provide the primary source documentation." Id.

5438

BALVAGE V. RYDERWOOD IMPROVEMENT

properly concluded that RISA does not qualify for the HOPA exemption between 2000 and 2006.

IT. RISA's Compliance Since 2007

The district court concluded that, even assuming that RISA completed a valid verification survey in September 2007, it cannot qualify for the HOPA exemption because it neither achieved full compliance with HOPA's requirements during the transition period nor properly "converted" to exempt status after the transition period ended by achieving full compliance without discriminating against families with children.

A.

[5] We agree with HUD that the district court erred. The HUD Secretary's amicus brief explains that

a community like Ryderwood, which has continuously operated as a retirement community for persons age 55 or older, can qualify for the HOPA defense after May 3, 2000 (the end of the regulatory transition period) ... by establishing that it currently satisfies the three statutory and regulatory criteria, even if it did not satisfy HOPA's age verification requirement before the transition ended. Such a community is not barred now or in the future from asserting the HOPA defense, notwithstanding the fact that it may have engaged in familial status discrimination after the transition period and prior to establishing compliance with HOPA's age verification requirement. To the extent the district court held otherwise, its ruling is in error.

HUD Br. 12-13.

[6] HUD's position is consistent with the FHA's plain text. Section 3607(b) provides that a community is exempt from

BALVAGE V. RYDERWOOD IMPROVEMENT

5439

the prohibitions on familial status discrimination when the three HOPA requirements are satisfied. See 42 U.S.C. § 3607(b)(2)(C) (providing that the FHA's familial status prohibitions do not apply to housing when "at least 80 percent of the occupied units are occupied by at least one person who is 55 years of age or older," that the "community publishes and adheres to policies and procedures" demonstrating the intent to operate as a HOPA community and that the "community complies with rules issued by [HUD] for verification of occupancy" (emphasis added)). Nothing in the statute suggests that a community's past actions preclude it from qualifying for the exemption based on current compliance.

[7] The district court erred by relying on HUD's 2006 policy guidance to reach a different conclusion. The guidance addresses a situation not presented here - "how a community that had not reached the 80% occupancy threshold by the end of the transition period could convert to housing for older persons and take advantage of the HOPA exception." HUD Br. 24.

It does not address how a community that has consistently maintained the 80% threshold but has failed to comply with HOPA's age-verification requirements can come into compliance with HOPA and take advantage of HOPA's affrrrnative defense going forward. Nor does the guidance dictate what should happen prospectively if a community maintains the 80% threshold after the end of the transition period by engaging in familial-status discrimination. Thus, to the extent the district court concluded that HUD's 2006 guidance dictated that RlSA is not entitled now or in the future to take advantage of the HOPA exception, that reliance was incorrect.

Nothing in HUD's 2006 guidance forbids a housing community that has continuously operated as housing for persons 55 and over from availing itself

5440

BALVAGE V. RYDERWOOD IMPROVEMENT

of the HOPA exemption on a prospective basis simply because it has previously failed to comply with age-verification requirements.

!d.

This conclusion does not reward RISA for having disregarded the verification requirement, as the plaintiffs contend. Assuming arguendo that the September 2007 survey satisfies the verification requirement, RISA became exempt from the FHA's prohibitions on familial status discrimination at that time, but RISA cannot claim the exemption for any prior period. See Hayward, 36 F.3d at 837 (housing must meet all three HOPA requirements to qualify for the exemption); HUD, Questions and Answers Concerning the Final Rule Implementing the Housing for Older Persons Act of 1995, at 13 ("If an individual files a complaint based on familial status and the housing community ... claims the exemption as a defense, ... [t]he community ... has the burden of proving that it was in compliance with HOPA requirements on the date ofoccurrence of the alleged act or incident of discrimination." (emphasis added)). Current compliance with the verification requirement, in other words, will not shield a community from liability for discrimination occurring before compliance was achieved. And any person aggrieved by that pre-compliance discrimination has two years in which to bring suit. See 42 U.S.C. § 3613(a)(l)(A) ("An aggrieved person may commence a civil action in an appropriate Uuited States district court or State court not later than 2 years after the occurrence or the termination of an alleged discriminatory housing practice ...."). A community may not, therefore, disregard the verification requirement with impunity.

B.

[8] The parties dispute whether RISA's September 2007 survey satisfies the statutory and regulatory criteria. The dis-

BALVAGE V. RYDERWOOD IMPROVEMENT

5441

trict court, which has not yet addressed that issue, should do so on remand.

CoNCLUSION
We affirm in part and vacate in part the district court's grant of partial Sllmmary judgment to the plaintiffs. We vacate the preliminary injunction and remand for further proceedings. Each party shall bear its own costs on appeal.
AFFIRMED IN PART, VACATED IN PART and REMANDED.

 
 U.S. District Court United States District Court for the Western District of Washington (Tacoma)
CIVIL DOCKET FOR CASE #: 3:09-cv-05409-BHS

Balvage et al v. Ryderwood Improvement and Service Association, Inc. Assigned to: Judge Benjamin H. Settle Case in other court: CCA, 10-35714 Cause: 42:405 Fair Housing Act

Date Filed: 07/08/2009 Date Terminated: 08/25/2014 Jury Demand: Plaintiff Nature of Suit: 443 Civil Rights: Accommodations Jurisdiction: Federal Question

Plaintiff
Raymond T. Balvage husband and wife, on their own behalf and on behalf of a class of similarly situated individuals

represented by Abraham K Lorber LANE POWELL PC 1420 FIFTH AVENUE SUITE 4200 SEATTLE, WA 98111-9402 206-223-7000 Fax: 206-223-7107 Email: lorbera@lanepowell.com TERMINATED: 04/08/2013

Joseph E Lynam LANE POWELL PC 1420 FIFTH AVENUE SUITE 4200 SEATTLE, WA 98111-9402 206-223-7000 Email: lynamj@lanepowell.com TERMINATED: 06/10/2013

Stephen Garrett Leatham HEURLIN POTTER LEATHAM & HOLTMANN PS PO BOX 611 211 E. MCLOUGHLIN BLVD, STE 100 VANCOUVER, WA 98666-0611 360-750-7547 Fax: FAX 1-360-750-7548 Email: sgl@hpl-law.com ATTORNEY TO BE NOTICED

Plaintiff

Deborah A. Balvage wife and husband, on their own behalf and on behalf of a class of similarly situated individuals
Plaintiff Charles E. Weaver husband and wife, on their own behalf and on behalf of a class of similarly situated individuals
Plaintiff Susan M. Weaver wife and husband, on their own behalf and on behalf of a class of similarly situated individuals
Plaintiff Joyce Marie Adams

represented by Abraham K Lorber (See above for address) TERMINATED: 04/08/2013
Joseph E Lynam (See above for address) TERMINATED: 06/10/2013
Stephen Garrett Leatham (See above for address) ATTORNEY TO BE NOTICED
represented by Abraham K Lorber (See above for address) TERMINATED: 04/08/2013
Joseph E Lynam (See above for address) TERMINATED: 06/10/2013
Stephen Garrett Leatham (See above for address) ATTORNEY TO BE NOTICED
represented by Abraham K Lorber (See above for address) TERMINATED: 04/08/2013
Joseph E Lynam (See above for address) TERMINATED: 06/10/2013
Stephen Garrett Leatham (See above for address) ATTORNEY TO BE NOTICED
represented by Joseph E Lynam LANE POWELL PC (SEA) 1420 FIFTH AVE STE 4100 SEATTLE, WA 98101-2338 206-223-7000

Plaintiff Luvern Harland Allen
Plaintiff Edgar Ames TERMINATED: 08/21/2012 Plaintiff James Alvin Baker
Plaintiff Darla Jean Baker husband and wife
Plaintiff Ralph Alvin Barfell, Jr

Email: lynamj@lanepowell.com TERMINATED: 06/10/2013
Stephen Garrett Leatham (See above for address) ATTORNEY TO BE NOTICED
represented by Joseph E Lynam (See above for address) TERMINATED: 06/10/2013
Stephen Garrett Leatham (See above for address) ATTORNEY TO BE NOTICED
represented by Joseph E Lynam (See above for address) TERMINATED: 06/10/2013
represented by Joseph E Lynam (See above for address) TERMINATED: 06/10/2013
Stephen Garrett Leatham (See above for address) ATTORNEY TO BE NOTICED
represented by Joseph E Lynam (See above for address) TERMINATED: 06/10/2013
Stephen Garrett Leatham (See above for address) ATTORNEY TO BE NOTICED
represented by Joseph E Lynam (See above for address) TERMINATED: 06/10/2013

Plaintiff Sharon Marie Banta
Plaintiff Ray Bodine TERMINATED: 11/01/2012 Plaintiff Janie Kay Bodine
Plaintiff Richard Anthony Braga, Jr
Plaintiff Margaret Louise Braga husband and wife

Stephen Garrett Leatham (See above for address) ATTORNEY TO BE NOTICED
represented by Joseph E Lynam (See above for address) TERMINATED: 06/10/2013
Stephen Garrett Leatham (See above for address) ATTORNEY TO BE NOTICED
represented by Joseph E Lynam (See above for address) TERMINATED: 06/10/2013
represented by Joseph E Lynam (See above for address) TERMINATED: 06/10/2013
Stephen Garrett Leatham (See above for address) ATTORNEY TO BE NOTICED
represented by Joseph E Lynam (See above for address) TERMINATED: 06/10/2013
Stephen Garrett Leatham (See above for address) ATTORNEY TO BE NOTICED
represented by Joseph E Lynam (See above for address) TERMINATED: 06/10/2013
Stephen Garrett Leatham (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Charles Thomas Caldwell
Plaintiff Sandi Kay Caldwell husband and wife
Plaintiff Laren Willbur Coleman
Plaintiff Pamela Denise Coleman husband and wife
Plaintiff Alvin Dee Colpitts

represented by Joseph E Lynam (See above for address) TERMINATED: 06/10/2013
Stephen Garrett Leatham (See above for address) ATTORNEY TO BE NOTICED
represented by Joseph E Lynam (See above for address) TERMINATED: 06/10/2013
Stephen Garrett Leatham (See above for address) ATTORNEY TO BE NOTICED
represented by Joseph E Lynam (See above for address) TERMINATED: 06/10/2013
Stephen Garrett Leatham (See above for address) ATTORNEY TO BE NOTICED
represented by Joseph E Lynam (See above for address) TERMINATED: 06/10/2013
Stephen Garrett Leatham (See above for address) ATTORNEY TO BE NOTICED
represented by Joseph E Lynam (See above for address) TERMINATED: 06/10/2013
Stephen Garrett Leatham (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Corabelle Colpitts husband and wife
Plaintiff Betty Gene Donoghue
Plaintiff Elizabeth Elaine Dupree TERMINATED: 10/30/2012 Plaintiff Joyce Elain Fischer
Plaintiff Jeannette H Headen
Plaintiff Glenn Richard Huestis

represented by Joseph E Lynam (See above for address) TERMINATED: 06/10/2013
Stephen Garrett Leatham (See above for address) ATTORNEY TO BE NOTICED
represented by Joseph E Lynam (See above for address) TERMINATED: 06/10/2013
Stephen Garrett Leatham (See above for address) ATTORNEY TO BE NOTICED
represented by Joseph E Lynam (See above for address) TERMINATED: 06/10/2013
represented by Joseph E Lynam (See above for address) TERMINATED: 06/10/2013
Stephen Garrett Leatham (See above for address) ATTORNEY TO BE NOTICED
represented by Jeannette H Headen PRO SE
Joseph E Lynam (See above for address) TERMINATED: 06/10/2013
represented by Joseph E Lynam (See above for address)

Plaintiff Carol Nadine Huestis husband and wife
Plaintiff Barbara Jean Joy
Plaintiff Miriam Margaret Kennedy-Allen
Plaintiff Gerald Blair Kolb
Plaintiff

TERMINATED: 06/10/2013
Stephen Garrett Leatham (See above for address) ATTORNEY TO BE NOTICED
represented by Joseph E Lynam (See above for address) TERMINATED: 06/10/2013
Stephen Garrett Leatham (See above for address) ATTORNEY TO BE NOTICED
represented by Joseph E Lynam (See above for address) TERMINATED: 06/10/2013
Stephen Garrett Leatham (See above for address) ATTORNEY TO BE NOTICED
represented by Joseph E Lynam (See above for address) TERMINATED: 06/10/2013
Stephen Garrett Leatham (See above for address) ATTORNEY TO BE NOTICED
represented by Joseph E Lynam (See above for address) TERMINATED: 06/10/2013
Stephen Garrett Leatham (See above for address) ATTORNEY TO BE NOTICED

Ethel May Kolb husband and wife TERMINATED: 11/01/2012 Plaintiff Alfred Wesley Leach
Plaintiff Gloria Eileen Leach husband and wife
Plaintiff Raymond Ernest Morris TERMINATED: 08/12/2013
Plaintiff Carolyn L Morris husband and wife
Plaintiff Arnold Nadeau TERMINATED: 11/01/2012

represented by Joseph E Lynam (See above for address) TERMINATED: 06/10/2013
represented by Joseph E Lynam (See above for address) TERMINATED: 06/10/2013
Stephen Garrett Leatham (See above for address) ATTORNEY TO BE NOTICED
represented by Joseph E Lynam (See above for address) TERMINATED: 06/10/2013
Stephen Garrett Leatham (See above for address) ATTORNEY TO BE NOTICED
represented by Joseph E Lynam (See above for address) TERMINATED: 06/10/2013
Stephen Garrett Leatham (See above for address) ATTORNEY TO BE NOTICED
represented by Joseph E Lynam (See above for address) TERMINATED: 06/10/2013
Stephen Garrett Leatham (See above for address) ATTORNEY TO BE NOTICED
represented by Joseph E Lynam (See above for address) TERMINATED: 06/10/2013

Plaintiff Karen Campbell
Plaintiff Bob Pistone
Plaintiff Doris Pistone husband and wife
Plaintiff Vern Powell
Plaintiff Sharon Powell husband and wife

represented by Joseph E Lynam (See above for address) TERMINATED: 06/10/2013
Stephen Garrett Leatham (See above for address) ATTORNEY TO BE NOTICED
represented by Joseph E Lynam (See above for address) TERMINATED: 06/10/2013
Stephen Garrett Leatham (See above for address) ATTORNEY TO BE NOTICED
represented by Joseph E Lynam (See above for address) TERMINATED: 06/10/2013
Stephen Garrett Leatham (See above for address) ATTORNEY TO BE NOTICED
represented by Joseph E Lynam (See above for address) TERMINATED: 06/10/2013
Stephen Garrett Leatham (See above for address) ATTORNEY TO BE NOTICED
represented by Joseph E Lynam (See above for address) TERMINATED: 06/10/2013
Stephen Garrett Leatham (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Earleen M Rutherford TERMINATED: 11/01/2012 Plaintiff Charles John Santineau
Plaintiff Barbara Louise Pepper
Plaintiff Lucas John Shimmin TERMINATED: 01/10/2013 Plaintiff Don Smith
Plaintiff Diane Smith husband and wife

represented by Joseph E Lynam (See above for address) TERMINATED: 06/10/2013
represented by Joseph E Lynam (See above for address) TERMINATED: 06/10/2013
Stephen Garrett Leatham (See above for address) ATTORNEY TO BE NOTICED
represented by Joseph E Lynam (See above for address) TERMINATED: 06/10/2013
Stephen Garrett Leatham (See above for address) ATTORNEY TO BE NOTICED
represented by Joseph E Lynam (See above for address) TERMINATED: 06/10/2013
represented by Joseph E Lynam (See above for address) TERMINATED: 06/10/2013
Stephen Garrett Leatham (See above for address) ATTORNEY TO BE NOTICED
represented by Joseph E Lynam (See above for address) TERMINATED: 06/10/2013
Stephen Garrett Leatham

Plaintiff Donald Neil Stroud
Plaintiff Sharon Lee Stroud husband and wife
Plaintiff Walter Gordon West
Plaintiff Janet Marie West husband and wife
Plaintiff Beverly White

(See above for address) ATTORNEY TO BE NOTICED
represented by Joseph E Lynam (See above for address) TERMINATED: 06/10/2013
Stephen Garrett Leatham (See above for address) ATTORNEY TO BE NOTICED
represented by Joseph E Lynam (See above for address) TERMINATED: 06/10/2013
Stephen Garrett Leatham (See above for address) ATTORNEY TO BE NOTICED
represented by Joseph E Lynam (See above for address) TERMINATED: 06/10/2013
Stephen Garrett Leatham (See above for address) ATTORNEY TO BE NOTICED
represented by Joseph E Lynam (See above for address) TERMINATED: 06/10/2013
Stephen Garrett Leatham (See above for address) ATTORNEY TO BE NOTICED
represented by Joseph E Lynam (See above for address) TERMINATED: 06/10/2013

Plaintiff Bob White
Plaintiff Diane White husband and wife

Stephen Garrett Leatham (See above for address) ATTORNEY TO BE NOTICED
represented by Bob White 204 MONROE ST RYDERWOOD, WA 98581 360-355-9900 Email: snowbirdtrust@gmail.com PRO SE
Joseph E Lynam (See above for address) TERMINATED: 06/10/2013
represented by Diane White 204 MONROE ST Ryderwood, WA 98581 PRO SE
Joseph E Lynam (See above for address) TERMINATED: 06/10/2013

V.
Defendant
Ryderwood Improvement and Service Association, Inc. a Washington nonprofit corporation

represented by Richard D Ross SELMAN BRIETMAN LLP (WA) 800 FIFTH AVENUE, SUITE 4100 SEATTLE, WA 98104 206-447-6461 Email: rross@selmanlaw.com ATTORNEY TO BE NOTICED
Steven Goldstein BETTS PATTERSON & MINES (SEA) 701 PIKE ST STE 1400 SEATTLE, WA 98101-3927 206-292-9988

Fax: 206-343-7053 Email: sgoldstein@bpmlaw.com ATTORNEY TO BE NOTICED

V. Interested Party Joseph E. Lynam
Counter Claimant Ryderwood Improvement and Service Association, Inc. a Washington nonprofit corporation

represented by Joseph E Lynam (See above for address) TERMINATED: 06/10/2013
represented by Steven Goldstein (See above for address) ATTORNEY TO BE NOTICED

V. Counter Defendant Raymond T. Balvage husband and wife, on their own behalf and on behalf of a class of similarly situated individuals
Counter Defendant Deborah A. Balvage wife and husband, on their own behalf and on behalf of a class of similarly situated individuals
Counter Defendant Charles E. Weaver husband and wife, on their own behalf and on behalf of a class of similarly situated individuals

represented by Joseph E Lynam (See above for address) TERMINATED: 06/10/2013
Stephen Garrett Leatham (See above for address) ATTORNEY TO BE NOTICED
represented by Joseph E Lynam (See above for address) TERMINATED: 06/10/2013
Stephen Garrett Leatham (See above for address) ATTORNEY TO BE NOTICED
represented by Joseph E Lynam (See above for address) TERMINATED: 06/10/2013
Stephen Garrett Leatham

Counter Defendant Susan M. Weaver wife and husband, on their own behalf and on behalf of a class of similarly situated individuals
Counter Claimant Ryderwood Improvement and Service Association, Inc. a Washington nonprofit corporation

(See above for address) ATTORNEY TO BE NOTICED
represented by Joseph E Lynam (See above for address) TERMINATED: 06/10/2013
Stephen Garrett Leatham (See above for address) ATTORNEY TO BE NOTICED
represented by Richard D Ross (See above for address) ATTORNEY TO BE NOTICED
Steven Goldstein (See above for address) ATTORNEY TO BE NOTICED

V. Counter Defendant Joyce Marie Adams
Counter Defendant Luvern Harland Allen
Counter Defendant

represented by Joseph E Lynam (See above for address) TERMINATED: 06/10/2013
Stephen Garrett Leatham (See above for address) ATTORNEY TO BE NOTICED
represented by Joseph E Lynam (See above for address) TERMINATED: 06/10/2013
Stephen Garrett Leatham (See above for address) ATTORNEY TO BE NOTICED

Darla Jean Baker husband and wife
Counter Defendant James Alvin Baker
Counter Defendant Deborah A. Balvage wife and husband, on their own behalf and on behalf of a class of similarly situated individuals
Counter Defendant Raymond T. Balvage husband and wife, on their own behalf and on behalf of a class of similarly situated individuals
Counter Defendant

represented by Joseph E Lynam (See above for address) TERMINATED: 06/10/2013
Stephen Garrett Leatham (See above for address) ATTORNEY TO BE NOTICED
represented by Joseph E Lynam (See above for address) TERMINATED: 06/10/2013
Stephen Garrett Leatham (See above for address) ATTORNEY TO BE NOTICED
represented by Abraham K Lorber (See above for address) TERMINATED: 04/08/2013
Joseph E Lynam (See above for address) TERMINATED: 06/10/2013
Stephen Garrett Leatham (See above for address) ATTORNEY TO BE NOTICED
represented by Abraham K Lorber (See above for address) TERMINATED: 04/08/2013
Joseph E Lynam (See above for address) TERMINATED: 06/10/2013
Stephen Garrett Leatham (See above for address) ATTORNEY TO BE NOTICED

Sharon Marie Banta
Counter Defendant Ralph Alvin Barfell, Jr
Counter Defendant Janie Kay Bodine
Counter Defendant Margaret Louise Braga husband and wife
Counter Defendant Richard Anthony Braga, Jr

represented by Joseph E Lynam (See above for address) TERMINATED: 06/10/2013
Stephen Garrett Leatham (See above for address) ATTORNEY TO BE NOTICED
represented by Joseph E Lynam (See above for address) TERMINATED: 06/10/2013
Stephen Garrett Leatham (See above for address) ATTORNEY TO BE NOTICED
represented by Joseph E Lynam (See above for address) TERMINATED: 06/10/2013
Stephen Garrett Leatham (See above for address) ATTORNEY TO BE NOTICED
represented by Joseph E Lynam (See above for address) TERMINATED: 06/10/2013
Stephen Garrett Leatham (See above for address) ATTORNEY TO BE NOTICED
represented by Joseph E Lynam (See above for address) TERMINATED: 06/10/2013
Stephen Garrett Leatham (See above for address) ATTORNEY TO BE NOTICED

Counter Defendant Charles Thomas Caldwell
Counter Defendant Sandi Kay Caldwell husband and wife
Counter Defendant Karen Campbell
Counter Defendant Laren Willbur Coleman
Counter Defendant Pamela Denise Coleman husband and wife

represented by Joseph E Lynam (See above for address) TERMINATED: 06/10/2013
Stephen Garrett Leatham (See above for address) ATTORNEY TO BE NOTICED
represented by Joseph E Lynam (See above for address) TERMINATED: 06/10/2013
Stephen Garrett Leatham (See above for address) ATTORNEY TO BE NOTICED
represented by Joseph E Lynam (See above for address) TERMINATED: 06/10/2013
Stephen Garrett Leatham (See above for address) ATTORNEY TO BE NOTICED
represented by Joseph E Lynam (See above for address) TERMINATED: 06/10/2013
Stephen Garrett Leatham (See above for address) ATTORNEY TO BE NOTICED
represented by Joseph E Lynam (See above for address) TERMINATED: 06/10/2013
Stephen Garrett Leatham (See above for address) ATTORNEY TO BE NOTICED

Counter Defendant Alvin Dee Colpitts
Counter Defendant Corabelle Colpitts husband and wife
Counter Defendant Betty Gene Donoghue
Counter Defendant Joyce Elain Fischer
Counter Defendant Jeannette H Headen Counter Defendant

represented by Joseph E Lynam (See above for address) TERMINATED: 06/10/2013
Stephen Garrett Leatham (See above for address) ATTORNEY TO BE NOTICED
represented by Joseph E Lynam (See above for address) TERMINATED: 06/10/2013
Stephen Garrett Leatham (See above for address) ATTORNEY TO BE NOTICED
represented by Joseph E Lynam (See above for address) TERMINATED: 06/10/2013
Stephen Garrett Leatham (See above for address) ATTORNEY TO BE NOTICED
represented by Joseph E Lynam (See above for address) TERMINATED: 06/10/2013
Stephen Garrett Leatham (See above for address) ATTORNEY TO BE NOTICED
represented by Joseph E Lynam (See above for address) TERMINATED: 06/10/2013

Carol Nadine Huestis husband and wife
Counter Defendant Glenn Richard Huestis
Counter Defendant Barbara Jean Joy
Counter Defendant Miriam Margaret Kennedy-Allen
Counter Defendant Gerald Blair Kolb

represented by Joseph E Lynam (See above for address) TERMINATED: 06/10/2013
Stephen Garrett Leatham (See above for address) ATTORNEY TO BE NOTICED
represented by Joseph E Lynam (See above for address) TERMINATED: 06/10/2013
Stephen Garrett Leatham (See above for address) ATTORNEY TO BE NOTICED
represented by Joseph E Lynam (See above for address) TERMINATED: 06/10/2013
Stephen Garrett Leatham (See above for address) ATTORNEY TO BE NOTICED
represented by Joseph E Lynam (See above for address) TERMINATED: 06/10/2013
Stephen Garrett Leatham (See above for address) ATTORNEY TO BE NOTICED
represented by Joseph E Lynam (See above for address) TERMINATED: 06/10/2013
Stephen Garrett Leatham (See above for address) ATTORNEY TO BE NOTICED

Counter Defendant Alfred Wesley Leach
Counter Defendant Gloria Eileen Leach husband and wife
Counter Defendant Carolyn L Morris husband and wife
Counter Defendant Raymond Ernest Morris TERMINATED: 08/12/2013
Counter Defendant Barbara Louise Pepper

represented by Joseph E Lynam (See above for address) TERMINATED: 06/10/2013
Stephen Garrett Leatham (See above for address) ATTORNEY TO BE NOTICED
represented by Joseph E Lynam (See above for address) TERMINATED: 06/10/2013
Stephen Garrett Leatham (See above for address) ATTORNEY TO BE NOTICED
represented by Joseph E Lynam (See above for address) TERMINATED: 06/10/2013
Stephen Garrett Leatham (See above for address) ATTORNEY TO BE NOTICED
represented by Joseph E Lynam (See above for address) TERMINATED: 06/10/2013
Stephen Garrett Leatham (See above for address) ATTORNEY TO BE NOTICED
represented by Joseph E Lynam (See above for address) TERMINATED: 06/10/2013
Stephen Garrett Leatham (See above for address) ATTORNEY TO BE NOTICED

Counter Defendant Bob Pistone
Counter Defendant Doris Pistone husband and wife
Counter Defendant Sharon Powell husband and wife
Counter Defendant Vern Powell
Counter Defendant Charles John Santineau

represented by Joseph E Lynam (See above for address) TERMINATED: 06/10/2013
Stephen Garrett Leatham (See above for address) ATTORNEY TO BE NOTICED
represented by Joseph E Lynam (See above for address) TERMINATED: 06/10/2013
Stephen Garrett Leatham (See above for address) ATTORNEY TO BE NOTICED
represented by Joseph E Lynam (See above for address) TERMINATED: 06/10/2013
Stephen Garrett Leatham (See above for address) ATTORNEY TO BE NOTICED
represented by Joseph E Lynam (See above for address) TERMINATED: 06/10/2013
Stephen Garrett Leatham (See above for address) ATTORNEY TO BE NOTICED
represented by Joseph E Lynam (See above for address) TERMINATED: 06/10/2013
Stephen Garrett Leatham (See above for address) ATTORNEY TO BE NOTICED

Counter Defendant Diane Smith husband and wife
Counter Defendant Don Smith
Counter Defendant Donald Neil Stroud
Counter Defendant Sharon Lee Stroud husband and wife
Counter Defendant Charles E. Weaver husband and wife, on their own behalf and on behalf of a class of similarly situated individuals

represented by Joseph E Lynam (See above for address) TERMINATED: 06/10/2013
Stephen Garrett Leatham (See above for address) ATTORNEY TO BE NOTICED
represented by Joseph E Lynam (See above for address) TERMINATED: 06/10/2013
Stephen Garrett Leatham (See above for address) ATTORNEY TO BE NOTICED
represented by Joseph E Lynam (See above for address) TERMINATED: 06/10/2013
Stephen Garrett Leatham (See above for address) ATTORNEY TO BE NOTICED
represented by Joseph E Lynam (See above for address) TERMINATED: 06/10/2013
Stephen Garrett Leatham (See above for address) ATTORNEY TO BE NOTICED
represented by Abraham K Lorber (See above for address) TERMINATED: 04/08/2013
Joseph E Lynam (See above for address) TERMINATED: 06/10/2013

Counter Defendant Susan M. Weaver wife and husband, on their own behalf and on behalf of a class of similarly situated individuals
Counter Defendant Janet Marie West husband and wife
Counter Defendant Walter Gordon West
Counter Defendant Beverly White

Stephen Garrett Leatham (See above for address) ATTORNEY TO BE NOTICED
represented by Abraham K Lorber (See above for address) TERMINATED: 04/08/2013
Joseph E Lynam (See above for address) TERMINATED: 06/10/2013
Stephen Garrett Leatham (See above for address) ATTORNEY TO BE NOTICED
represented by Joseph E Lynam (See above for address) TERMINATED: 06/10/2013
Stephen Garrett Leatham (See above for address) ATTORNEY TO BE NOTICED
represented by Joseph E Lynam (See above for address) TERMINATED: 06/10/2013
Stephen Garrett Leatham (See above for address) ATTORNEY TO BE NOTICED
represented by Joseph E Lynam (See above for address) TERMINATED: 06/10/2013
Stephen Garrett Leatham (See above for address) ATTORNEY TO BE NOTICED

Counter Defendant Bob White
Counter Defendant Diane White husband and wife

represented by Joseph E Lynam (See above for address) TERMINATED: 06/10/2013
represented by Joseph E Lynam (See above for address) TERMINATED: 06/10/2013

Date Filed 07/08/2009
07/09/2009 07/09/2009
07/14/2009
07/17/2009 08/04/2009 11/03/2009

# Docket Text
1 COMPLAINT against defendant(s) Ryderwood Improvement and Service Association, Inc. (Summons(es) issued)(Receipt # SEA27435), filed by Raymond T. Balvage, Deborah A. Balvage, Charles E. Weaver, Susan M. Weaver. (Attachments: # 1 Civil Cover Sheet)(TG) (Entered: 07/09/2009)
2 MINUTE ORDER REGARDING DISCOVERY AND DEPOSITIONS by Judge Benjamin H Settle. (TG) (Entered: 07/09/2009)
3 MINUTE ORDER REGARDING INITIAL DISCLOSURES, JOINT STATUS REPORT AND EARLY SETTLEMENT by Judge Benjamin H Settle: Joint Status Report due by 11/6/2009, FRCP 26f Conference Deadline is 10/16/2009, Initial Disclosure Deadline is 10/30/2009. (TG) (Entered: 07/09/2009)
4 AFFIDAVIT of Service of Summons and Complaint on Sally Gene DeBriae--Registered Agent on 7/9/2009, filed by Plaintiffs Raymond T. Balvage, Deborah A. Balvage, Charles E. Weaver, Susan M. Weaver. (Attachments: # 1 Certificate of Service)(Lynam, Joseph) (Entered: 07/14/2009)
5 NOTICE of Appearance by attorney Steven Goldstein on behalf of Defendant Ryderwood Improvement and Service Association, Inc.. (Goldstein, Steven) (Entered: 07/17/2009)
6 ANSWER to Complaint Affirmative Defenses, COUNTERCLAIM against plaintiff all plaintiffs by Ryderwood Improvement and Service Association, Inc..(Goldstein, Steven) (Entered: 08/04/2009)
7 STIPULATION AND PROPOSED ORDER RE AMENDED COMPLAINT by parties. (Lynam, Joseph) (Entered: 11/03/2009)

11/06/2009 11/10/2009
11/10/2009 11/11/2009 11/12/2009 11/13/2009 03/11/2010

8 JOINT STATUS REPORT signed by all parties Filed by Plaintiffs Raymond T. Balvage, Deborah A. Balvage, Charles E. Weaver, Susan M. Weaver.(Lynam, Joseph) (Entered: 11/06/2009)
9 MINUTE ORDER SETTING TRIAL AND PRETRIAL DATES; *TEN DAY* Bench Trial is set for 11/2/2010 at 9:00 AM in Courtroom E before Judge Benjamin H. Settle: Joinder of Parties due by 12/10/2009; Amended Pleadings due by 12/21/2009; Expert Witness Disclosure/Reports under FRCP 26(a)(2) due by 4/26/2010; Rebuttal Expert Disclosure/Reports due by 5/26/2010; Motions due by 6/7/2010; Discovery completed by 7/6/2010; Dispositive motions due by 8/4/2010; Settlement conference to be held by 9/3/2010; 39.1 mediation to be completed by 9/23/2010; 39.1 Settlement Report due by 10/4/2010; Motions in Limine due by 10/4/2010; Pretrial Order due by 10/12/2010; Trial briefs to be submitted by 10/12/2010; Pretrial Conference set for 10/18/2010 at 1:30 PM in Courtroom E before Judge Benjamin H. Settle. Authorized by Judge Benjamin H. Settle. (MGC) (Entered: 11/10/2009)
10 STIPULATION AND ORDER by Judge Benjamin H Settle re 7 Stipulation filed by Charles E. Weaver, Deborah A. Balvage, Raymond T. Balvage, Susan M. Weaver. (Attachments: # 1Exhibit A)(TG) (Entered: 11/10/2009)
11 AMENDED COMPLAINT --CLASS ACTION FOR VIOLATION OF FEDERAL FAIR HOUSING ACT AND OTHER CLAIMS against defendant(s) Ryderwood Improvement and Service Association, Inc., filed by Raymond T. Balvage, Deborah A. Balvage, Charles E. Weaver, Susan M. Weaver.(Lynam, Joseph) (Entered: 11/11/2009)
12 Stipulated MOTION AND ORDER TO CONTINUE PLAINTIFFS' LRCR 23(i)(3) DEADLINEby Plaintiffs Raymond T. Balvage, Deborah A. Balvage, Charles E. Weaver, Susan M. Weaver. Noting Date 11/12/2009, (Lynam, Joseph) (Entered: 11/12/2009)
13 STIPULATION AND ORDER by Judge Benjamin H Settle re 12 Stipulated MOTION AND ORDER TO CONTINUE PLAINTIFFS' LRCR 23(i)(3) DEADLINE filed by Charles E. Weaver, Deborah A. Balvage, Raymond T. Balvage, Susan M. Weaver. Plaintiffs must file motion for class certification on or before 4/30/09. (TG) (Entered: 11/13/2009)
14 MOTION for Partial Summary Judgment Re Defendant's Violation for FHA and Non-Compliance with HOPA Exception by Plaintiffs Raymond T. Balvage, Deborah A. Balvage, Charles E. Weaver,

03/11/2010
03/11/2010
03/29/2010 03/29/2010 03/29/2010

Susan M. Weaver. (Attachments: # 1 Proposed Order Granting Plaintiffs' Motion for Partial Summary Judgment Re Defendant's Violation of FHA and Non-Compliance with HOPA Exception) Noting Date 4/2/2010, (Lynam, Joseph) (Entered: 03/11/2010)
15 DECLARATION of Charles E. Weaver in Support of Plaintiffs' Motion for Partial Summary Judgment filed by Plaintiffs Raymond T. Balvage, Deborah A. Balvage, Charles E. Weaver, Susan M. Weaver re 14 MOTION for Partial Summary Judgment Re Defendant's Violation for FHA and Non-Compliance with HOPA Exception (Attachments: # 1 Exhibit A to Declaration of Charles E. Weaver, # 2 Exhibit B to Declaration of Charles E. Weaver, # 3 Exhibit C to the Declaration of Charles E. Weaver, # 4 Exhibit D to the Declaration of Charles E. Weaver, # 5Exhibit E to the Declaration of Charles E. Weaver)(Lynam, Joseph) (Entered: 03/11/2010)
16 DECLARATION of Joseph E. Lynam in Support of Plaintiffs' Motion for Partial Summary Judgment filed by Plaintiffs Raymond T. Balvage, Deborah A. Balvage, Charles E. Weaver, Susan M. Weaver re 14 MOTION for Partial Summary Judgment Re Defendant's Violation for FHA and Non-Compliance with HOPA Exception (Attachments: # 1 Exhibit A to the Declaration of Joseph E. Lynam, # 2 Exhibit B to the Declaration of Joseph E. Lynam, # 3Exhibit C to the Declaration of Joseph E. Lynam, # 4 Exhibit D to the Declaration of Joseph E. Lynam)(Lynam, Joseph) (Entered: 03/11/2010)
17 RESPONSE, by Defendant Ryderwood Improvement and Service Association, Inc., to 14MOTION for Partial Summary Judgment Re Defendant's Violation for FHA and Non-Compliance with HOPA Exception. Oral Argument Requested. (Goldstein, Steven) (Entered: 03/29/2010)
18 DECLARATION of Richard D. Ross filed by Defendant Ryderwood Improvement and Service Association, Inc. re 14 MOTION for Partial Summary Judgment Re Defendant's Violation for FHA and Non-Compliance with HOPA Exception (Goldstein, Steven) (Entered: 03/29/2010)
19 DECLARATION of Sally Gene DeBriae filed by Defendant Ryderwood Improvement and Service Association, Inc. re 14 MOTION for Partial Summary Judgment Re Defendant's Violation for FHA and Non-Compliance with HOPA Exception (Goldstein, Steven) (Entered: 03/29/2010)

04/01/2010 04/01/2010
04/01/2010 04/01/2010 04/01/2010 04/05/2010 04/05/2010 04/05/2010

20 REPLY, filed by Plaintiffs Raymond T. Balvage, Deborah A. Balvage, Charles E. Weaver, Susan M. Weaver, TO RESPONSE to 14 MOTION for Partial Summary Judgment Re Defendant's Violation for FHA and Non-Compliance with HOPA Exception (Lynam, Joseph) (Entered: 04/01/2010)
21 Second DECLARATION of Joseph E. Lynam in Support of Plaintiffs' Motion for Partial SJ filed by Plaintiffs Raymond T. Balvage, Deborah A. Balvage, Charles E. Weaver, Susan M. Weaver re 14 MOTION for Partial Summary Judgment Re Defendant's Violation for FHA and Non-Compliance with HOPA Exception (Attachments: # 1 Exhibit A to Second Lynam Decl, # 2 Exhibit B to Second Lynam Decl, # 3 Exhibit C to Second Lynam Decl)(Lynam, Joseph) (Entered: 04/01/2010)
22 MOTION for Summary Judgment by Defendant Ryderwood Improvement and Service Association, Inc.. Oral Argument Requested. Noting Date 4/23/2010, (Goldstein, Steven) (Entered: 04/01/2010)
23 Second DECLARATION of Richard D. Ross filed by Defendant Ryderwood Improvement and Service Association, Inc. re 22 MOTION for Summary Judgment (Goldstein, Steven) (Entered: 04/01/2010)
24 DECLARATION of Sally Gene DeBriae filed by Defendant Ryderwood Improvement and Service Association, Inc. re 22 MOTION for Summary Judgment (Goldstein, Steven) (Entered: 04/01/2010)
25 NOTICE that the following is RE-NOTED: 22 MOTION for Summary Judgment. Filed by Defendant Ryderwood Improvement and Service Association, Inc.. Noting Date 4/30/2010, (Attachments: # 1 Corrected Defendants' Motion for Partial Summary Judgment)(Goldstein, Steven) (Entered: 04/05/2010)
26 PRAECIPE re 25 Notice of Motion Re-Noted, changing noting date and name of document to Defendants' Motion for Partial Summary Judgment by Defendant Ryderwood Improvement and Service Association, Inc.. (Goldstein, Steven) (Entered: 04/05/2010)
27 PROPOSED ORDER (Unsigned) re 22 MOTION for Summary Judgment. (Goldstein, Steven) (Entered: 04/05/2010)

04/05/2010 04/15/2010 04/26/2010 04/26/2010 04/26/2010 04/26/2010 04/26/2010
04/26/2010

28 PRAECIPE to attach the Notice to the Court by Ed & Doris Ritzman that do not wish to be a part of this lawsuit. (CMG) (Entered: 04/08/2010)
Noting Date Set/Reset re 14 Plaintiffs' MOTION for Partial Summary Judgment Re Defendant's Violation for FHA and NonCompliance with HOPA Exception : RENOTED to 4/30/2010. The Court will consider this motion at the same time as 22 Defendant's MOTION for Partial Summary Judgment, also noted for 4/30/2010. (TG) (Entered: 04/15/2010)
29 RESPONSE, by Plaintiffs Raymond T. Balvage, Deborah A. Balvage, Charles E. Weaver, Susan M. Weaver, to 22 MOTION for Summary Judgment. Oral Argument Requested. (Attachments: # 1 Proposed Order Denying Defendant's Motion for Partial Summary Judgment)(Lynam, Joseph) (Entered: 04/26/2010)
30 DECLARATION of Joyce Adams in Opposition to Defendant's Motion for Partial Summary Judgment filed by Plaintiffs Raymond T. Balvage, Deborah A. Balvage, Charles E. Weaver, Susan M. Weaver re 22 MOTION for Summary Judgment (Lynam, Joseph) (Entered: 04/26/2010)
31 DECLARATION of Joseph E. Lynam in Opposition to Defendant's Motion for Partial Summary Judgment & Exhibit filed by Plaintiffs Raymond T. Balvage, Deborah A. Balvage, Charles E. Weaver, Susan M. Weaver re 22 MOTION for Summary Judgment (Lynam, Joseph) (Entered: 04/26/2010)
32 DECLARATION of Abraham K. Lorber in Opposition to Defendant's Motion for Partial Summary Judgment & Exhibits filed by Plaintiffs Raymond T. Balvage, Deborah A. Balvage, Charles E. Weaver, Susan M. Weaver re 22 MOTION for Summary Judgment (Lynam, Joseph) (Entered: 04/26/2010)
33 DECLARATION of Charles E. Weaver in Opposition to Defendant's Motion for Partial Summary Judgment filed by Plaintiffs Raymond T. Balvage, Deborah A. Balvage, Charles E. Weaver, Susan M. Weaver re 22 MOTION for Summary Judgment (Attachments: # 1 Exhibit A, pp 12-100, # 2 Exhibit A, pp 101-200, # 3 Exhibit A, pp 201-294; B & C)(Lynam, Joseph) (Entered: 04/26/2010)
34 MOTION for Extension of Time PLAINTIFFS' MOTION TO EXTEND LRCR 23(i)(3) DEADLINE by Plaintiffs Raymond T. Balvage, Deborah A. Balvage, Charles E. Weaver, Susan M. Weaver. (Attachments: # 1 Proposed Order Granting Plaintiffs'

04/27/2010 04/28/2010
04/30/2010 04/30/2010 05/03/2010 05/17/2010 05/27/2010 06/02/2010

Motion to Extend LRCR 23(i)(3) Deadline) Noting Date 5/5/2010, (Lorber, Abraham) (Entered: 04/26/2010)
35 NOTICE that the following is RE-NOTED: 34 MOTION for Extension of Time PLAINTIFFS' MOTION TO EXTEND LRCR 23(i)(3) DEADLINE. Filed by Plaintiffs Raymond T. Balvage, Deborah A. Balvage, Charles E. Weaver, Susan M. Weaver. Noting Date 5/7/2010, (Lynam, Joseph) (Entered: 04/27/2010)
36 MOTION to Amend Complaint and for Voluntary Dismissal of Class Action Claims by Plaintiffs Raymond T. Balvage, Deborah A. Balvage, Charles E. Weaver, Susan M. Weaver. (Attachments: # 1 Exhibit A to Plaintiffs' Motion to Amend Complaint, # 2 Proposed Order Granting Plaintiffs' Motion to Amend Complaint and for Voluntary Dismissal of Class Action Claims) Noting Date 5/14/2010, (Lynam, Joseph) (Entered: 04/28/2010)
37 REPLY, filed by Defendant Ryderwood Improvement and Service Association, Inc., TO RESPONSE to 22 MOTION for Summary Judgment (Goldstein, Steven) (Entered: 04/30/2010)
38 Second DECLARATION of Richard D. Ross filed by Defendant Ryderwood Improvement and Service Association, Inc. re 22 MOTION for Summary Judgment (Attachments: # 1Exhibit Exhibits C through N)(Goldstein, Steven) (Entered: 04/30/2010)
Attorney Richard D Ross for Ryderwood Improvement and Service Association, Inc. added per 37 Reply. (KN) (Entered: 05/03/2010)
39 ORDER by Judge Benjamin H Settle GRANTING 34 MOTION for Extension of Time PLAINTIFFS' MOTION TO EXTEND LRCR 23(i)(3) DEADLINE filed by Charles E. Weaver, Deborah A. Balvage, Raymond T. Balvage, Susan M. Weaver. (TG) (Entered: 05/17/2010)
40 ORDER by Judge Benjamin H Settle granting 36 Motion to Amend. Counsel is directed to e-file their Amended Complaint. (TG) (Entered: 05/27/2010)
41 Second AMENDED COMPLAINT for Violation of Federal Fair Housing Act and Other Claims against defendant(s) Ryderwood Improvement and Service Association, Inc., filed by Raymond T. Balvage, Deborah A. Balvage, Charles E. Weaver, Susan M. Weaver.(Lynam, Joseph) (Entered: 06/02/2010)

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06/17/2010
06/18/2010
06/18/2010

42 ORDER by Judge Benjamin H Settle granting in part and denying in part 14 Plaintiffs' Motion for Partial Summary Judgment; denying 25 Defendant's Motion for Summary Judgment.(TG) (Entered: 06/04/2010)
43 PRAECIPE by Gary Balch asking not to be included in class action lawsuit. (CMG) (Entered: 06/15/2010)
44 PRAECIPE by Lisa Balch asking not to be included in class action lawsuit. (CMG) (Entered: 06/15/2010)
45 PRAECIPE by Nathan Ablamis asking to not be included in the class action lawsuit. (CMG) (Entered: 06/15/2010)
46 PRAECIPE by Dorothy Ablamis asking to not be included in the class action lawsuit. (CMG) (Entered: 06/15/2010)
47 RETURN RECEIPT (Green Card) re service by certified mail executed upon Lane Powell and SWIFFT (CMG) (Entered: 06/15/2010)
48 MOTION for Preliminary Injunction by Plaintiffs Raymond T. Balvage, Deborah A. Balvage, Charles E. Weaver, Susan M. Weaver. (Attachments: # 1 Proposed Order Imposing Preliminary Injunction) Noting Date 7/9/2010, (Lynam, Joseph) (Entered: 06/17/2010)
49 DECLARATION of Charles Weaver In Support Of Plaintiff's Motion For Preliminary Injunction filed by Plaintiffs Raymond T. Balvage, Deborah A. Balvage, Charles E. Weaver, Susan M. Weaver re 48 MOTION for Preliminary Injunction (Lynam, Joseph) (Entered: 06/17/2010)
50 MOTION for Reconsideration re 42 Order on Motion for Partial Summary Judgment, Order on Motion for Summary Judgment by Defendant Ryderwood Improvement and Service Association, Inc.. Oral Argument Requested. Noting Date 6/18/2010, (Goldstein, Steven) (Entered: 06/18/2010)
51 DECLARATION of Richard D. Ross filed by Defendant Ryderwood Improvement and Service Association, Inc. re 50 MOTION for Reconsideration re 42 Order on Motion for Partial Summary Judgment, Order on Motion for Summary Judgment (Goldstein, Steven) (Entered: 06/18/2010)

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07/06/2010 07/06/2010

52 ORDER denying 50 Motion for Reconsideration and setting deadlines. Signed by Judge Benjamin H. Settle. (MGC) (Entered: 06/23/2010)
53 MOTION for Attorney Fees by Plaintiffs Raymond T. Balvage, Deborah A. Balvage, Charles E. Weaver, Susan M. Weaver. (Attachments: # 1 Proposed Order Granting Plaintiffs' Motion for Attorneys Fees) Noting Date 7/9/2010, (Lynam, Joseph) (Entered: 06/24/2010)
54 DECLARATION of Charles E. Weaver In Support Of Plaintiffs' Motion For Attorneys Fees filed by Plaintiffs Raymond T. Balvage, Deborah A. Balvage, Charles E. Weaver, Susan M. Weaver re 53 MOTION for Attorney Fees (Lynam, Joseph) (Entered: 06/24/2010)
55 MOTION to Continue Motion For Continuance by Defendant Ryderwood Improvement and Service Association, Inc.. (Attachments: # 1 Proposed Order) Noting Date 7/16/2010, (Goldstein, Steven) (Entered: 06/30/2010)
56 DECLARATION of Steven Goldstein filed by Defendant Ryderwood Improvement and Service Association, Inc. re 55 MOTION to Continue Motion For Continuance (Goldstein, Steven) (Entered: 06/30/2010)
57 RESPONSE, by Defendant Ryderwood Improvement and Service Association, Inc., to 48MOTION for Preliminary Injunction. Oral Argument Requested. (Goldstein, Steven) (Entered: 07/06/2010)
58 DECLARATION of Richard D. Ross filed by Defendant Ryderwood Improvement and Service Association, Inc. re 48 MOTION for Preliminary Injunction (Attachments: # 1Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13Exhibit M, # 14 Exhibit N)(Goldstein, Steven) (Entered: 07/06/2010)
59 DECLARATION of Sally-Gene Debriae filed by Defendant Ryderwood Improvement and Service Association, Inc. re 48 MOTION for Preliminary Injunction (Goldstein, Steven) (Entered: 07/06/2010)
60 RESPONSE, by Defendant Ryderwood Improvement and Service Association, Inc., to 53MOTION for Attorney Fees. Oral Argument Requested. (Goldstein, Steven) (Entered: 07/06/2010)

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61 RESPONSE, by Plaintiffs Raymond T. Balvage, Deborah A. Balvage, Charles E. Weaver, to 50 MOTION for Reconsideration re 42 Order on Motion for Partial Summary Judgment, Order on Motion for Summary Judgment. (Lynam, Joseph) (Entered: 07/07/2010)
62 DECLARATION of Charles E. Weaver In Opposition to RISA'S Motion for Leave to File for Discretionary Appeal filed by Plaintiffs Raymond T. Balvage, Deborah A. Balvage, Charles E. Weaver re 50 MOTION for Reconsideration re 42 Order on Motion for Partial Summary Judgment, Order on Motion for Summary Judgment (Lynam, Joseph) (Entered: 07/07/2010)
63 REPLY, filed by Plaintiffs Raymond T. Balvage, Deborah A. Balvage, Charles E. Weaver, Susan M. Weaver, TO RESPONSE to 48 MOTION for Preliminary Injunction (Lynam, Joseph) (Entered: 07/09/2010)
64 DECLARATION of Joseph E. Lynam in Support of Plaintiffs' Motion for Preliminary Injunction filed by Plaintiffs Raymond T. Balvage, Deborah A. Balvage, Charles E. Weaver, Susan M. Weaver re 48 MOTION for Preliminary Injunction (Lynam, Joseph) (Entered: 07/09/2010)
65 Second DECLARATION of Charles E. Weaver in Support of Plaintiffs' Motion for Preliminary Injunction filed by Plaintiffs Raymond T. Balvage, Deborah A. Balvage, Charles E. Weaver, Susan M. Weaver re 48 MOTION for Preliminary Injunction (Lynam, Joseph) (Entered: 07/09/2010)
66 PROPOSED ORDER (Unsigned) re 48 MOTION for Preliminary Injunction Amended Order Improsing Preliminary Injunction (Lynam, Joseph) (Entered: 07/09/2010)
67 REPLY, filed by Plaintiffs Raymond T. Balvage, Deborah A. Balvage, Charles E. Weaver, Susan M. Weaver, TO RESPONSE to 53 MOTION for Attorney Fees (Lynam, Joseph) (Entered: 07/09/2010)
68 REPLY, filed by Defendant Ryderwood Improvement and Service Association, Inc., TO RESPONSE to 50 MOTION for Reconsideration re 42 Order on Motion for Partial Summary Judgment, Order on Motion for Summary Judgment (Goldstein, Steven) (Entered: 07/09/2010)
69 DECLARATION of Richard D. Ross filed by Defendant Ryderwood Improvement and Service Association, Inc.

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re 50 MOTION for Reconsideration re 42 Order on Motion for Partial Summary Judgment, Order on Motion for Summary Judgment (Attachments: # 1Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Goldstein, Steven) (Entered: 07/09/2010)
70 RESPONSE, by Plaintiffs Deborah A. Balvage, Raymond T. Balvage, Charles E. Weaver, Susan M. Weaver, to 55 MOTION to Continue Motion For Continuance. (Lynam, Joseph) (Entered: 07/12/2010)
71 DECLARATION of Joseph E. Lynam in Opposition to RISA's Motion for Continuance filed by Plaintiffs Deborah A. Balvage, Raymond T. Balvage, Charles E. Weaver, Susan M. Weaver re 55 MOTION to Continue Motion For Continuance (Lynam, Joseph) (Entered: 07/12/2010)
72 REPLY, filed by Defendant Ryderwood Improvement and Service Association, Inc., TO RESPONSE to 55 MOTION to Continue Motion For Continuance (Goldstein, Steven) (Entered: 07/14/2010)
73 STIPULATION AND PROPOSED ORDER TO CONTINUE DISPOSITIVE MOTIONS CUTOFF DATE by parties. (Goldstein, Steven) (Entered: 08/03/2010)
74 STIPULATION AND ORDER by Judge Benjamin H Settle re 73 Stipulation filed by Ryderwood Improvement and Service Association, Inc. Dispositive motions due by 8/18/2010. (TG) (Entered: 08/04/2010)
75 ORDER by Judge Benjamin H Settle GRANTING 48 Motion for Preliminary Injunction; and DENYING 53 Motion for Attorney Fees.(TG) (Entered: 08/11/2010)
76 NOTICE of Hearing: Status Conference/In-court Hearing set for 8/26/2010 at 1:30 PM in Courtroom E before Judge Benjamin H. Settle. (MGC) (Entered: 08/12/2010)
77 MOTION for Partial Summary Judgment Regarding Authority to Enforce Bylaws by Defendant Ryderwood Improvement and Service Association, Inc.. Oral Argument Requested. Noting Date 9/3/2010, (Goldstein, Steven) (Entered: 08/12/2010)
78 DECLARATION of Richard D. Ross filed by Defendant Ryderwood Improvement and Service Association, Inc. re 77 MOTION for Partial Summary Judgment Regarding Authority to Enforce Bylaws (Attachments: # 1 Exhibit A-E,

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# 2 Exhibit F-J, # 3 Exhibit K-O, # 4Exhibit P-T, # 5 Exhibit UX)(Goldstein, Steven) (Entered: 08/12/2010)
79 NOTICE OF APPEAL #10-35714 as to 75 Order on Motion for Preliminary Injunction, Order on Motion for Attorney Fees, 42 Order on Motion for Partial Summary Judgment, Order on Motion for Summary Judgment by Defendant Ryderwood Improvement and Service Association, Inc.. Filing Fee $455, Receipt number 0981-2157041. (Attachments: # 1 Exhibit, # 2 Exhibit)(Goldstein, Steven) Modified on 8/26/2010-add appeal number (MW). (Entered: 08/13/2010)
80 REPRESENTATION STATEMENT, by Defendant Ryderwood Improvement and Service Association, Inc., (re: 79 Notice of Appeal,.) (Goldstein, Steven) (Entered: 08/13/2010)
81 CERTIFICATE re 80 Representation Statement, 79 Notice of Appeal, CERTIFICATE NO TRANSCRIPT WILL BE ORDERED by Defendant Ryderwood Improvement and Service Association, Inc.. (Goldstein, Steven) (Entered: 08/13/2010)
82 ERRATA re 77 MOTION for Partial Summary Judgment Regarding Authority to Enforce Bylaws by Defendant Ryderwood Improvement and Service Association, Inc.. (Attachments: # 1 Errata)(Goldstein, Steven) (Entered: 08/13/2010)
83 PROPOSED ORDER (Unsigned) re 77 MOTION for Partial Summary Judgment Regarding Authority to Enforce Bylaws. (Goldstein, Steven) (Entered: 08/13/2010)
84 APPEAL NOTIFICATION packet sent to US Court of Appeals re 79 Notice of Appeal, (Attachments: # 1 docket report)(MW) (Entered: 08/13/2010)
Party Joyce Marie Adams, Luvern Harland Allen, Edgar Ames, James Alvin Baker, Darla Jean Baker, Ralph Alvin Barfell, Jr, Sharon Marie Banta, Ray Bodine, Janie Kay Bodine, Richard Anthony Braga, Jr, Margaret Louise Braga, Charles Thomas Caldwell, Sandi Kay Caldwell, Laren Willbur Coleman, Pamela Denise Coleman, Alvin Dee Colpitts, Corabelle Colpitts, Betty Gene Donoghue, Elizabeth Elaine Dupree, Joyce Elain Fischer, Jeannette H Headen, Glenn Richard Huestis, Carol Nadine Huestis, Barbara Jean Joy, Miriam Margaret Kennedy-Allen, Gerald Blair Kolb, Ethel May Kolb, Alfred Wesley Leach, Gloria Eileen Leach, Raymond Ernest Morris, Carolyn L Morris, Arnold Nadeau, Karen Campbell, Bob Pistone, Doris Pistone, Vern

08/16/2010 08/17/2010
08/18/2010 08/18/2010 08/26/2010
08/30/2010

Powell, Sharon Powell, Earleen M Rutherford, Charles John Santineau, Barbara Louise Pepper, Lucas John Shimmin, Don Smith, Diane Smith, Donald Neil Stroud, Sharon Lee Stroud, Walter Gordon West, Janet Marie West, Beverly White, Bob White and Diane White added per 40 Order, 41 Second Amended Complaint. (KN) (Entered: 08/16/2010)
USCA Case Number 10-35714 for 79 Notice of Appeal, filed by Ryderwood Improvement and Service Association, Inc.. (MW) (Entered: 08/26/2010)
87 ORDER of USCA as to 79 Notice of Appeal #10-35714, filed by Ryderwood Improvement and Service Association, Inc.; appeal filed 8/13/10 is a preliminary injunction appeal; parties to make arrangements to obtain transcript; BRIEFING SCHEDULE: opening brief is due by 9/10/10; answering brief is due 10/8/10; opt reply due w/in 14 days; if aplt fails to file timely opening brief, appeal will be dismissed (MW) (Entered: 08/26/2010)
85 MOTION for Partial Summary Judgment Regarding Punitive Damages by Defendant Ryderwood Improvement and Service Association, Inc.. (Attachments: # 1 Proposed Order) Noting Date 9/10/2010, (Goldstein, Steven) (Entered: 08/18/2010)
86 DECLARATION of Richard D. Ross filed by Defendant Ryderwood Improvement and Service Association, Inc. re 85 MOTION for Partial Summary Judgment Regarding Punitive Damages (Goldstein, Steven) (Entered: 08/18/2010)
88 MINUTE ENTRY for Status Conference held on 8/26/2010 before Judge Benjamin H. Settle - Dep Clerk: G. Craft; Pla Counsel: Joseph Lynam; Def Counsel: Steven Goldstein, Richard Ross; CR: Teri Hendrix; Time of Hearing: 1:30; Courtroom: E; Court grants RISA's motion for discretionary appeal; this case is STAYED, with the exception of 77 - pending motion for summary judgment; the Court will schedule a settlement conference for the parties. (MGC) (Entered: 08/27/2010)
89 RESPONSE, by Plaintiffs Joyce Marie Adams, Luvern Harland Allen, Edgar Ames, Darla Jean Baker, James Alvin Baker, Deborah A. Balvage, Raymond T. Balvage, Sharon Marie Banta, Ralph Alvin Barfell, Jr, Janie Kay Bodine, Ray Bodine, Margaret Louise Braga, Richard Anthony Braga, Jr, Charles Thomas Caldwell, Sandi Kay Caldwell, Karen Campbell, Laren Willbur Coleman, Pamela Denise Coleman, Alvin Dee Colpitts, Corabelle Colpitts, Betty Gene Donoghue, Elizabeth Elaine Dupree, Joyce Elain Fischer, Jeannette H Headen, Carol Nadine Huestis, Glenn

08/30/2010 08/30/2010

Richard Huestis, Barbara Jean Joy, Miriam Margaret KennedyAllen, Ethel May Kolb, Gerald Blair Kolb, Alfred Wesley Leach, Gloria Eileen Leach, Carolyn L Morris, Raymond Ernest Morris, Arnold Nadeau, Barbara Louise Pepper, Bob Pistone, Doris Pistone, Sharon Powell, Vern Powell, Earleen M Rutherford, Charles John Santineau, Lucas John Shimmin, Diane Smith, Don Smith, Donald Neil Stroud, Sharon Lee Stroud, Charles E. Weaver, Susan M. Weaver, Janet Marie West, Walter Gordon West, Beverly White, Bob White, Diane White, to 77 MOTION for Partial Summary Judgment Regarding Authority to Enforce Bylaws. (Attachments: # 1 Proposed Order)(Lynam, Joseph) (Entered: 08/30/2010)
90 DECLARATION of Charles E. Weaver in Opposition to RISA's Motion for Partial Summary Judgment Re Authority to Enforce Bylaws and Exhibits filed by Plaintiffs Joyce Marie Adams, Luvern Harland Allen, Edgar Ames, Darla Jean Baker, James Alvin Baker, Deborah A. Balvage, Raymond T. Balvage, Sharon Marie Banta, Ralph Alvin Barfell, Jr, Janie Kay Bodine, Ray Bodine, Margaret Louise Braga, Richard Anthony Braga, Jr, Charles Thomas Caldwell, Sandi Kay Caldwell, Karen Campbell, Laren Willbur Coleman, Pamela Denise Coleman, Alvin Dee Colpitts, Corabelle Colpitts, Betty Gene Donoghue, Elizabeth Elaine Dupree, Joyce Elain Fischer, Jeannette H Headen, Carol Nadine Huestis, Glenn Richard Huestis, Barbara Jean Joy, Miriam Margaret Kennedy-Allen, Ethel May Kolb, Gerald Blair Kolb, Alfred Wesley Leach, Gloria Eileen Leach, Carolyn L Morris, Raymond Ernest Morris, Arnold Nadeau, Barbara Louise Pepper, Bob Pistone, Doris Pistone, Sharon Powell, Vern Powell, Earleen M Rutherford, Charles John Santineau, Lucas John Shimmin, Diane Smith, Don Smith, Donald Neil Stroud, Sharon Lee Stroud, Charles E. Weaver, Susan M. Weaver, Janet Marie West, Walter Gordon West, Beverly White, Bob White, Diane White re 77MOTION for Partial Summary Judgment Regarding Authority to Enforce Bylaws (Lynam, Joseph) (Entered: 08/30/2010)
91 DECLARATION of Abraham K. Lorber in Opposition to RISA's Motion for Partial Summary Judgment Re Authority to Enforce Bylaws filed by Plaintiffs Joyce Marie Adams, Luvern Harland Allen, Edgar Ames, Darla Jean Baker, James Alvin Baker, Deborah A. Balvage, Raymond T. Balvage, Sharon Marie Banta, Ralph Alvin Barfell, Jr, Janie Kay Bodine, Ray Bodine, Margaret Louise Braga, Richard Anthony Braga, Jr, Charles Thomas Caldwell, Sandi Kay Caldwell, Karen Campbell, Laren Willbur Coleman, Pamela Denise Coleman, Alvin Dee Colpitts, Corabelle

09/01/2010 09/02/2010
09/03/2010 09/03/2010

Colpitts, Betty Gene Donoghue, Elizabeth Elaine Dupree, Joyce Elain Fischer, Jeannette H Headen, Carol Nadine Huestis, Glenn Richard Huestis, Barbara Jean Joy, Miriam Margaret KennedyAllen, Ethel May Kolb, Gerald Blair Kolb, Alfred Wesley Leach, Gloria Eileen Leach, Carolyn L Morris, Raymond Ernest Morris, Arnold Nadeau, Barbara Louise Pepper, Bob Pistone, Doris Pistone, Sharon Powell, Vern Powell, Earleen M Rutherford, Charles John Santineau, Lucas John Shimmin, Diane Smith, Don Smith, Donald Neil Stroud, Sharon Lee Stroud, Charles E. Weaver, Susan M. Weaver, Janet Marie West, Walter Gordon West, Beverly White, Bob White, Diane White re 77 MOTION for Partial Summary Judgment Regarding Authority to Enforce Bylaws (Attachments: # 1 Exhibit Ex A, # 2 Exhibit Ex B Part 1, # 3 Exhibit Ex B Part 2)(Lynam, Joseph) (Entered: 08/30/2010)
92 ORDER by Judge Benjamin H Settle granting Defendant's motion for discretionary appeal and granting in part Defendant's request for a stay pending appeal. Hearings, deadlines and motions terminated except for Dkt. 77 (RISA's pending motion for partial summary judgment). Court to schedule settlement conference before U.S. Magistrate Judge. (TG) (Entered: 09/01/2010)
93 SCHEDULING ORDER for Settlement Conference: This matter has been referred to Judge Arnold to conduct a SETTLEMENT CONFERENCE. Settlement briefs/memorandums are due in chambers on 9/27/2010 by 4:00 PM. The briefs should contain a statement of the facts, issues for trial, the law, strengths and weaknesses of the parties' case, each party's position after mediation held in this matter and a settlement figure. The briefs/memorandums should be delivered to Judge Arnold's chambers or submitted by fax to (253)882-3861 or submitted by email to allyson_swan@wawd.uscourts.gov. BRIEFS ARE TO BE CONFIDENTIAL AND NOT FILED WITH THE COURT OR SERVED ON OPPOSING COUNSEL. In addition to counsel, parties and representatives who have authority to settle are directed to be present in person. Settlement Conference set for 9/30/2010 at 09:00 AM in C Courtroom before Judge J. Kelley Arnold; by Judge J. Kelley Arnold. (AS) (Entered: 09/02/2010)
94 REPLY, filed by Defendant Ryderwood Improvement and Service Association, Inc., TO RESPONSE to 77 MOTION for Partial Summary Judgment Regarding Authority to Enforce Bylaws (Goldstein, Steven) (Entered: 09/03/2010)
95 DECLARATION of Richard D. Ross filed by Defendant Ryderwood Improvement and Service Association, Inc.

09/03/2010 09/03/2010 09/08/2010
09/16/2010 09/21/2010 10/05/2010

re 77 MOTION for Partial Summary Judgment Regarding Authority to Enforce Bylaws (Attachments: # 1 Exhibit A-E, # 2 Exhibit F-J, # 3 Exhibit K-O, # 4Exhibit P-T, # 5 Exhibit U-Y, # 6 Exhibit Z-DD, # 7 Exhibit EE-GG)(Goldstein, Steven) (Entered: 09/03/2010)
96 ORDER of USCA as to 79 Notice of Appeal #10-35714, filed by Ryderwood Improvement and Service Association, Inc.; this is a preliminary injunction appeal; aplt's mtn to stay pending appeal the district court's 8/11/10 preliminary injunction is granted; aples' mtn to dismiss will be addressed by separate order (MW) (Entered: 09/07/2010)
97 MINUTE ORDER referring case for settlement conference on 9/30/10. (MGC) (Entered: 09/08/2010)
98 AMENDED SCHEDULING ORDER for Settlement Conference: This matter has been referred to Judge Arnold to conduct a SETTLEMENT CONFERENCE. Settlement briefs/memorandums are due in chambers on 9/29/2010 by 4:00 PM. The briefs should contain a statement of the facts, issues for trial, the law, strengths and weaknesses of the parties' case, each party's position after mediation held in this matter and a settlement figure. The briefs/memorandums should be delivered to Judge Arnold's chambers or submitted by fax at (253)882-3881 or submitted by email to allyson_swan@wawd.uscourts.gov. BRIEFS ARE TO BE CONFIDENTIAL AND NOT FILED WITH THE COURT OR SERVED ON OPPOSING COUNSEL. In addition to counsel, parties and representatives who have authority to settle are directed to be present in person. Settlement Conference set for 10/5/2010 at 09:00 AM in C Courtroom before Judge J. Kelley Arnold. by Judge J. Kelley Arnold. (AS) (Entered: 09/08/2010)
99 Appeal Remark: ltr from CCA re petition for permission to appeal under 1292(b) #10-80186(MW) (Entered: 09/17/2010)
100 ORDER by Judge Benjamin H Settle GRANTING 77 Motion for Partial Summary Judgment.(TG) (Entered: 09/21/2010)
101 MINUTE ENTRY for proceedings held before Judge J. Kelley Arnold - Dep Clerk: Allyson Swan; Pla Counsel: Joseph Lynam; Def Counsel: Steven Goldstein -- Settlement Conferenceheld on 10/5/2010. Settlement Conference set to continue telephonically on 10/11/2010 at 3:00 PM before Judge J. Kelley Arnold. (AS) (KAM). (Entered: 10/06/2010)

10/05/2010 10/11/2010 10/20/2010 10/26/2010 10/27/2010 10/27/2010
01/04/2011
04/27/2011

103 NOTICE of Added Image/Document re 101 Settlement Conference. (Service of corrected image is attached). (KAM) (Entered: 10/14/2010)
102 MINUTE ENTRY for proceedings held before Judge J. Kelley Arnold - Dep Clerk: Allyson Swan; Pla Counsel: Joseph Lynam; Def Counsel: Steven Goldstein -- Settlement Conferencecontinued telephonically on 10/11/2010. Status Conference by telephone set for 5/16/2011 at 9:00 AM before Judge J. Kelley Arnold. (AS) (Entered: 10/13/2010)
104 ORDER of USCA - petition for permission to appeal pursuant to 28 USC 1292(b) #10-80186, filed by petitioner Ryderwood Improvement and Service Assoc, Inc, is granted; w/in 14 days, petitioner Ryderwood shall perfect the appeal (MW) (Entered: 10/20/2010)
105 NOTICE OF APPEAL #10-35970 per 104 order from CCA granting permission to appeal pursuant to 28 USC 1292(b); petitioner shall perfect the appeal in accordance w/ FRAP 5(d) (Attachments: # 1 order 104)(MW) (Entered: 10/28/2010)
Appeal Fees received: fee in the amount of $ 455 (receipt # TAC8008) re 105 Notice of Appeal filed by Ryderwood Improvement and Service Association, Inc. (MW) (Entered: 10/28/2010)
106 TIME SCHEDULE ORDER as to 105 Notice of Appeal #1035970 filed by Ryderwood Improvement and Service Association, Inc. : MEDIATION QUESTIONNAIRE due 11/2/10; Transcript designation due by 11/26/10; Transcrip shall be filed by court reporter 12/27/10; Appellant's opening brief due by 2/3/11; Appellee's answering brief due by 3/7/11; Appellants optional reply brief due within 14 days of service of the response brief. (MW) (Entered: 10/28/2010)
107 ORDER of USCA as to 79 Notice of Appeal #10-35714, filed by Ryderwood Improvement and Service Association, Inc., 105 Notice of Appeal #10-35970 filed by Ryderwood Improvement and Service Association, Inc.; the court invites the views of the Secretary of Housing & Urban Development on the issues presented in the appeal **SEE ORDER FOR DETAILS** (MW) Modified on 1/5/2011-corrected language (MW). (Entered: 01/05/2011)
108 ORDER/OPINION of USCA (NOT THE MANDATE) 79 Notice of Appeal 10-35714, filed by Ryderwood Improvement and Service Association, Inc., 105 Notice of Appeal #10-35970 filed

05/20/2011
05/24/2011
05/24/2011 05/24/2011 06/14/2011 09/27/2011 09/30/2011 10/04/2011 10/05/2011 10/17/2011 10/19/2011 11/10/2011

by Ryderwood Improvement and Service Association, Inc.; each party shall bear its own costs; affirmed in part, vacated in part, and remanded (MW) (Entered: 04/27/2011)
109 MANDATE of USCA as to 79 Notice of Appeal #10-35714, filed by Ryderwood Improvement and Service Association, Inc., 105 Notice of Appeal #10-35970 filed by Ryderwood Improvement and Service Association, Inc; judgment of this court, entered 4/27/11, takes effect this date - AFFIRMED in part, VACATED in part, and REMANDED, each party shall bear their own costs on appeal (MW) (Entered: 05/20/2011)
MINUTE ORDER: Pursuant to the Court's order staying the case (Dkt. 92) and the Court of Appeals' mandate issued on May 20, 2011(Dkt. 109), the stay is lifted and the parties are ORDERED to submit a joint status report as to how they intend to proceed with the case, by June 15, 2011. (TG) (Entered: 05/24/2011)
Set/Reset Deadlines: Joint Status Report due by 6/15/2011. (TG) (Entered: 05/24/2011)
110 SUPPLEMENTAL MINUTE ORDER re Settlement Conference, by Judge J. Kelley Arnold. (CMG) (Entered: 05/25/2011)
111 JOINT STATUS REPORT signed by all parties. (Lynam, Joseph) (Entered: 06/14/2011)
112 Letter from Alfred & Carol Gulliford regarding case information. (CMG) (Entered: 09/28/2011)
Set/Reset Deadlines: Joint Status Report due by 10/17/2011. (TG) (Entered: 09/30/2011)
113 Letter from Jonibon & Yvonne Stevens to Court. (MET) (Entered: 10/05/2011)
114 MINUTE ORDER at the direction of Judge Benjamin H Settle re 113 Letter. (TG; cc mailed to the Stevens) (Entered: 10/05/2011)
115 JOINT STATUS REPORT signed by all parties estimated Trial Days: 10.. (Lorber, Abraham) (Entered: 10/17/2011)
Set/Reset Deadlines: Joint Status Report due by 12/1/2011. (TG) (Entered: 10/19/2011)
116 MOTION to Compel by Plaintiffs Joyce Marie Adams, Luvern Harland Allen, Edgar Ames, Darla Jean Baker, James Alvin Baker,

11/10/2011 11/10/2011

Deborah A. Balvage, Raymond T. Balvage, Sharon Marie Banta, Ralph Alvin Barfell, Jr, Janie Kay Bodine, Ray Bodine, Margaret Louise Braga, Richard Anthony Braga, Jr, Charles Thomas Caldwell, Sandi Kay Caldwell, Karen Campbell, Laren Willbur Coleman, Pamela Denise Coleman, Alvin Dee Colpitts, Corabelle Colpitts, Betty Gene Donoghue, Elizabeth Elaine Dupree, Joyce Elain Fischer, Jeannette H Headen, Carol Nadine Huestis, Glenn Richard Huestis, Barbara Jean Joy, Miriam Margaret KennedyAllen, Ethel May Kolb, Gerald Blair Kolb, Alfred Wesley Leach, Gloria Eileen Leach, Carolyn L Morris, Raymond Ernest Morris, Arnold Nadeau, Barbara Louise Pepper, Bob Pistone, Doris Pistone, Sharon Powell, Vern Powell, Earleen M Rutherford, Charles John Santineau, Lucas John Shimmin, Diane Smith, Don Smith, Donald Neil Stroud, Sharon Lee Stroud, Charles E. Weaver, Susan M. Weaver, Janet Marie West, Walter Gordon West, Beverly White, Bob White, Diane White. (Attachments: # 1 Proposed Order) Noting Date 11/25/2011, (Lynam, Joseph) (Entered: 11/10/2011)
117 DECLARATION of Joseph E. Lynam filed by Plaintiffs Joyce Marie Adams, Luvern Harland Allen, Edgar Ames, Darla Jean Baker, James Alvin Baker, Deborah A. Balvage, Raymond T. Balvage, Sharon Marie Banta, Ralph Alvin Barfell, Jr, Janie Kay Bodine, Ray Bodine, Margaret Louise Braga, Richard Anthony Braga, Jr, Charles Thomas Caldwell, Sandi Kay Caldwell, Karen Campbell, Laren Willbur Coleman, Pamela Denise Coleman, Alvin Dee Colpitts, Corabelle Colpitts, Betty Gene Donoghue, Elizabeth Elaine Dupree, Joyce Elain Fischer, Jeannette H Headen, Carol Nadine Huestis, Glenn Richard Huestis, Barbara Jean Joy, Miriam Margaret Kennedy-Allen, Ethel May Kolb, Gerald Blair Kolb, Alfred Wesley Leach, Gloria Eileen Leach, Carolyn L Morris, Raymond Ernest Morris, Arnold Nadeau, Barbara Louise Pepper, Bob Pistone, Doris Pistone, Sharon Powell, Vern Powell, Earleen M Rutherford, Charles John Santineau, Lucas John Shimmin, Diane Smith, Don Smith, Donald Neil Stroud, Sharon Lee Stroud, Charles E. Weaver, Susan M. Weaver, Janet Marie West, Walter Gordon West, Beverly White, Bob White, Diane White re 116 MOTION to Compel (Lynam, Joseph) (Entered: 11/10/2011)
118 CERTIFICATE re 116 MOTION to Compel Certificate of Compliance by Plaintiffs Joyce Marie Adams, Luvern Harland Allen, Edgar Ames, Darla Jean Baker, James Alvin Baker, Deborah A. Balvage, Raymond T. Balvage, Sharon Marie Banta, Ralph Alvin Barfell, Jr, Janie Kay Bodine, Ray Bodine, Margaret Louise Braga, Richard Anthony Braga, Jr, Charles Thomas

11/21/2011 11/22/2011 11/22/2011

Caldwell, Sandi Kay Caldwell, Karen Campbell, Laren Willbur Coleman, Pamela Denise Coleman, Alvin Dee Colpitts, Corabelle Colpitts, Betty Gene Donoghue, Elizabeth Elaine Dupree, Joyce Elain Fischer, Jeannette H Headen, Carol Nadine Huestis, Glenn Richard Huestis, Barbara Jean Joy, Miriam Margaret KennedyAllen, Ethel May Kolb, Gerald Blair Kolb, Alfred Wesley Leach, Gloria Eileen Leach, Carolyn L Morris, Raymond Ernest Morris, Arnold Nadeau, Barbara Louise Pepper, Bob Pistone, Doris Pistone, Sharon Powell, Vern Powell, Earleen M Rutherford, Charles John Santineau, Lucas John Shimmin, Diane Smith, Don Smith, Donald Neil Stroud, Sharon Lee Stroud, Charles E. Weaver, Susan M. Weaver, Janet Marie West, Walter Gordon West, Beverly White, Bob White, Diane White. (Lynam, Joseph) (Entered: 11/10/2011)
119 RESPONSE, by Defendant Ryderwood Improvement and Service Association, Inc., to 116MOTION to Compel. Oral Argument Requested. (Ross, Richard) (Entered: 11/21/2011)
120 DECLARATION of Richard D. Ross filed by Defendant Ryderwood Improvement and Service Association, Inc. re 116 MOTION to Compel (Attachments: # 1 Exhibit A)(Ross, Richard) (Entered: 11/22/2011)
121 NOTICE STRIKING MOTION TO COMPEL re 116 MOTION to Compel ; filed by Plaintiffs Joyce Marie Adams, Luvern Harland Allen, Edgar Ames, Darla Jean Baker, James Alvin Baker, Deborah A. Balvage, Raymond T. Balvage, Sharon Marie Banta, Ralph Alvin Barfell, Jr, Janie Kay Bodine, Ray Bodine, Margaret Louise Braga, Richard Anthony Braga, Jr, Charles Thomas Caldwell, Sandi Kay Caldwell, Karen Campbell, Laren Willbur Coleman, Pamela Denise Coleman, Alvin Dee Colpitts, Corabelle Colpitts, Betty Gene Donoghue, Elizabeth Elaine Dupree, Joyce Elain Fischer, Jeannette H Headen, Carol Nadine Huestis, Glenn Richard Huestis, Barbara Jean Joy, Miriam Margaret KennedyAllen, Ethel May Kolb, Gerald Blair Kolb, Alfred Wesley Leach, Gloria Eileen Leach, Carolyn L Morris, Raymond Ernest Morris, Arnold Nadeau, Barbara Louise Pepper, Bob Pistone, Doris Pistone, Sharon Powell, Vern Powell, Earleen M Rutherford, Charles John Santineau, Lucas John Shimmin, Diane Smith, Don Smith, Donald Neil Stroud, Sharon Lee Stroud, Charles E. Weaver, Susan M. Weaver, Janet Marie West, Walter Gordon West, Beverly White, Bob White, Diane White. (Lorber, Abraham) (Entered: 11/22/2011)

12/02/2011 12/15/2011 01/25/2012 01/25/2012 01/27/2012 01/27/2012 03/13/2012 03/30/2012 04/12/2012
04/12/2012

122 JOINT STATUS REPORT signed by all parties estimated Trial Days: 10.. (Lorber, Abraham) (Entered: 12/02/2011)
Set/Reset Deadlines per request of parties: Joint Status Report due by 1/16/2012. (TG) (Entered: 12/15/2011)
123 JOINT STATUS REPORT signed by all parties. (Lynam, Joseph) (Entered: 01/25/2012)
Set/Reset Deadlines: Joint Status Report due by 3/5/2012, per parties' request (Dkt. 123). (TG) (Entered: 01/25/2012)
124 STIPULATION AND PROPOSED ORDER RE VOLUNTARY DISMISSAL OF ONE PLAINTIFF'S CLAIMS by parties. (Lynam, Joseph) (Entered: 01/27/2012)
125 STIPULATION AND ORDER by Judge Benjamin H Settle re 124 Stipulation filed by Joyce Marie Adams, et al. to dismiss plaintiff Jeannette Headen's claims. (TG) (Entered: 01/27/2012)
126 JOINT STATUS REPORT signed by all parties. (Lynam, Joseph) (Entered: 03/13/2012)
127 JOINT STATUS REPORT signed by all parties. (Lynam, Joseph) (Entered: 03/30/2012)
128 Second MOTION for Summary Judgment by Plaintiffs Joyce Marie Adams, et al. Oral Argument Requested. (Attachments: # 1 Proposed Order) Noting Date 5/4/2012, (Lynam, Joseph) Modified on 6/5/2012 to shorten docket entry (TG). (Entered: 04/12/2012)
129 DECLARATION of Joseph E. Lynam In Support of Pls' 2nd Motion for Partial Summary Judgment filed by Plaintiffs Joyce Marie Adams, Luvern Harland Allen, Edgar Ames, Darla Jean Baker, James Alvin Baker, Deborah A. Balvage, Raymond T. Balvage, Sharon Marie Banta, Ralph Alvin Barfell, Jr, Janie Kay Bodine, Ray Bodine, Margaret Louise Braga, Richard Anthony Braga, Jr, Charles Thomas Caldwell, Sandi Kay Caldwell, Karen Campbell, Laren Willbur Coleman, Pamela Denise Coleman, Alvin Dee Colpitts, Corabelle Colpitts, Betty Gene Donoghue, Elizabeth Elaine Dupree, Joyce Elain Fischer, Jeannette H Headen, Carol Nadine Huestis, Glenn Richard Huestis, Barbara Jean Joy, Miriam Margaret Kennedy-Allen, Ethel May Kolb, Gerald Blair Kolb, Alfred Wesley Leach, Gloria Eileen Leach, Carolyn L Morris, Raymond Ernest Morris, Arnold Nadeau, Barbara Louise Pepper, Bob Pistone, Doris Pistone, Sharon Powell, Vern Powell,

04/12/2012 04/12/2012

Earleen M Rutherford, Charles John Santineau, Lucas John Shimmin, Diane Smith, Don Smith, Donald Neil Stroud, Sharon Lee Stroud, Charles E. Weaver, Susan M. Weaver, Janet Marie West, Walter Gordon West, Beverly White, Bob White, Diane White re 128 Second MOTION for Summary Judgment (Attachments: # 1 Exhibit A, pp. 4-44, # 2 Exhibit B, pp. 45-52, # 3 Exhibit C, pp. 53-54, # 4Exhibit D, pp. 55-89)(Lynam, Joseph) (Entered: 04/12/2012)
130 DECLARATION of Joyce Adams filed by Plaintiffs Joyce Marie Adams, Luvern Harland Allen, Edgar Ames, Darla Jean Baker, James Alvin Baker, Deborah A. Balvage, Raymond T. Balvage, Sharon Marie Banta, Ralph Alvin Barfell, Jr, Janie Kay Bodine, Ray Bodine, Margaret Louise Braga, Richard Anthony Braga, Jr, Charles Thomas Caldwell, Sandi Kay Caldwell, Karen Campbell, Laren Willbur Coleman, Pamela Denise Coleman, Alvin Dee Colpitts, Corabelle Colpitts, Betty Gene Donoghue, Elizabeth Elaine Dupree, Joyce Elain Fischer, Jeannette H Headen, Carol Nadine Huestis, Glenn Richard Huestis, Barbara Jean Joy, Miriam Margaret Kennedy-Allen, Ethel May Kolb, Gerald Blair Kolb, Alfred Wesley Leach, Gloria Eileen Leach, Carolyn L Morris, Raymond Ernest Morris, Arnold Nadeau, Barbara Louise Pepper, Bob Pistone, Doris Pistone, Sharon Powell, Vern Powell, Earleen M Rutherford, Charles John Santineau, Lucas John Shimmin, Diane Smith, Don Smith, Donald Neil Stroud, Sharon Lee Stroud, Charles E. Weaver, Susan M. Weaver, Janet Marie West, Walter Gordon West, Beverly White, Bob White, Diane White re 128 Second MOTION for Summary Judgment (Lynam, Joseph) (Entered: 04/12/2012)
131 DECLARATION of Joyce Fischer filed by Plaintiffs Joyce Marie Adams, Luvern Harland Allen, Edgar Ames, Darla Jean Baker, James Alvin Baker, Deborah A. Balvage, Raymond T. Balvage, Sharon Marie Banta, Ralph Alvin Barfell, Jr, Janie Kay Bodine, Ray Bodine, Margaret Louise Braga, Richard Anthony Braga, Jr, Charles Thomas Caldwell, Sandi Kay Caldwell, Karen Campbell, Laren Willbur Coleman, Pamela Denise Coleman, Alvin Dee Colpitts, Corabelle Colpitts, Betty Gene Donoghue, Elizabeth Elaine Dupree, Joyce Elain Fischer, Jeannette H Headen, Carol Nadine Huestis, Glenn Richard Huestis, Barbara Jean Joy, Miriam Margaret Kennedy-Allen, Ethel May Kolb, Gerald Blair Kolb, Alfred Wesley Leach, Gloria Eileen Leach, Carolyn L Morris, Raymond Ernest Morris, Arnold Nadeau, Barbara Louise Pepper, Bob Pistone, Doris Pistone, Sharon Powell, Vern Powell, Earleen M Rutherford, Charles John Santineau, Lucas John Shimmin, Diane Smith, Don Smith, Donald Neil Stroud, Sharon Lee Stroud,

04/12/2012
04/12/2012 04/12/2012 04/12/2012

Charles E. Weaver, Susan M. Weaver, Janet Marie West, Walter Gordon West, Beverly White, Bob White, Diane White re 128 Second MOTION for Summary Judgment (Lynam, Joseph) (Entered: 04/12/2012)
132 DECLARATION of Claudia Drake filed by Plaintiffs Joyce Marie Adams, Luvern Harland Allen, Edgar Ames, Darla Jean Baker, James Alvin Baker, Deborah A. Balvage, Raymond T. Balvage, Sharon Marie Banta, Ralph Alvin Barfell, Jr, Janie Kay Bodine, Ray Bodine, Margaret Louise Braga, Richard Anthony Braga, Jr, Charles Thomas Caldwell, Sandi Kay Caldwell, Karen Campbell, Laren Willbur Coleman, Pamela Denise Coleman, Alvin Dee Colpitts, Corabelle Colpitts, Betty Gene Donoghue, Elizabeth Elaine Dupree, Joyce Elain Fischer, Jeannette H Headen, Carol Nadine Huestis, Glenn Richard Huestis, Barbara Jean Joy, Miriam Margaret Kennedy-Allen, Ethel May Kolb, Gerald Blair Kolb, Alfred Wesley Leach, Gloria Eileen Leach, Carolyn L Morris, Raymond Ernest Morris, Arnold Nadeau, Barbara Louise Pepper, Bob Pistone, Doris Pistone, Sharon Powell, Vern Powell, Earleen M Rutherford, Charles John Santineau, Lucas John Shimmin, Diane Smith, Don Smith, Donald Neil Stroud, Sharon Lee Stroud, Charles E. Weaver, Susan M. Weaver, Janet Marie West, Walter Gordon West, Beverly White, Bob White, Diane White re 128 Second MOTION for Summary Judgment (Lynam, Joseph) (Entered: 04/12/2012)
133 MOTION for Summary Judgment Regarding 2007 Survey by Defendant Ryderwood Improvement and Service Association, Inc.. Oral Argument Requested. Noting Date 5/4/2012, (Ross, Richard) (Entered: 04/12/2012)
134 DECLARATION of Alicia Pierce filed by Defendant Ryderwood Improvement and Service Association, Inc. re 133 MOTION for Summary Judgment Regarding 2007 Survey(Attachments: # 1 Exhibit A, # 2 Exhibit B1, # 3 Exhibit B2, # 4 Exhibit B3, # 5 Exhibit B4, # 6 Exhibit B5, # 7 Exhibit B6, # 8 Exhibit B7)(Ross, Richard) (Entered: 04/12/2012)
135 DECLARATION of Richard Ross filed by Defendant Ryderwood Improvement and Service Association, Inc. re 133 MOTION for Summary Judgment Regarding 2007 Survey(Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12Exhibit L, # 13 Exhibit M, # 14 Exhibit N)(Ross, Richard) (Entered: 04/12/2012)

04/30/2012 04/30/2012 04/30/2012 04/30/2012
04/30/2012

136 RESPONSE, by Defendant Ryderwood Improvement and Service Association, Inc., to 128Second MOTION for Summary Judgment. (Ross, Richard) (Entered: 04/30/2012)
137 DECLARATION of Richard D. Ross filed by Defendant Ryderwood Improvement and Service Association, Inc. re 128 Second MOTION for Summary Judgment (Attachments: # 1Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R, # 19 Exhibit S, # 20 Exhibit T, # 21 Exhibit U)(Ross, Richard) (Entered: 04/30/2012)
138 DECLARATION of Frances Sanders filed by Defendant Ryderwood Improvement and Service Association, Inc. re 128 Second MOTION for Summary Judgment (Attachments: # 1Exhibit A-F, # 2 Exhibit G-J)(Ross, Richard) (Entered: 04/30/2012)
139 RESPONSE, by Plaintiffs Joyce Marie Adams, Luvern Harland Allen, Edgar Ames, Darla Jean Baker, James Alvin Baker, Deborah A. Balvage, Raymond T. Balvage, Sharon Marie Banta, Ralph Alvin Barfell, Jr, Janie Kay Bodine, Ray Bodine, Margaret Louise Braga, Richard Anthony Braga, Jr, Charles Thomas Caldwell, Sandi Kay Caldwell, Karen Campbell, Laren Willbur Coleman, Pamela Denise Coleman, Alvin Dee Colpitts, Corabelle Colpitts, Betty Gene Donoghue, Elizabeth Elaine Dupree, Joyce Elain Fischer, Jeannette H Headen, Carol Nadine Huestis, Glenn Richard Huestis, Barbara Jean Joy, Miriam Margaret KennedyAllen, Ethel May Kolb, Gerald Blair Kolb, Alfred Wesley Leach, Gloria Eileen Leach, Carolyn L Morris, Raymond Ernest Morris, Arnold Nadeau, Barbara Louise Pepper, Bob Pistone, Doris Pistone, Sharon Powell, Vern Powell, Earleen M Rutherford, Charles John Santineau, Lucas John Shimmin, Diane Smith, Don Smith, Donald Neil Stroud, Sharon Lee Stroud, Charles E. Weaver, Susan M. Weaver, Janet Marie West, Walter Gordon West, Beverly White, Bob White, Diane White, to 133 MOTION for Summary Judgment Regarding 2007 Survey. Oral Argument Requested. (Lynam, Joseph) (Entered: 04/30/2012)
140 DECLARATION of Joyce Fischer in Opposition to RISA's Motion for Summary Judgment Re: 2007 Survey filed by Plaintiffs Joyce Marie Adams, Luvern Harland Allen, Edgar Ames, Darla Jean Baker, James Alvin Baker, Deborah A. Balvage, Raymond T. Balvage, Sharon Marie Banta, Ralph Alvin Barfell, Jr, Janie Kay

04/30/2012 05/04/2012

Bodine, Ray Bodine, Margaret Louise Braga, Richard Anthony Braga, Jr, Charles Thomas Caldwell, Sandi Kay Caldwell, Karen Campbell, Laren Willbur Coleman, Pamela Denise Coleman, Alvin Dee Colpitts, Corabelle Colpitts, Betty Gene Donoghue, Elizabeth Elaine Dupree, Joyce Elain Fischer, Jeannette H Headen, Carol Nadine Huestis, Glenn Richard Huestis, Barbara Jean Joy, Miriam Margaret Kennedy-Allen, Ethel May Kolb, Gerald Blair Kolb, Alfred Wesley Leach, Gloria Eileen Leach, Carolyn L Morris, Raymond Ernest Morris, Arnold Nadeau, Barbara Louise Pepper, Bob Pistone, Doris Pistone, Sharon Powell, Vern Powell, Earleen M Rutherford, Charles John Santineau, Lucas John Shimmin, Diane Smith, Don Smith, Donald Neil Stroud, Sharon Lee Stroud, Charles E. Weaver, Susan M. Weaver, Janet Marie West, Walter Gordon West, Beverly White, Bob White, Diane White re 133 MOTION for Summary Judgment Regarding 2007 Survey (Lynam, Joseph) (Entered: 04/30/2012)
141 DECLARATION of Joseph E. Lynam in Oppoisition to RISA's Motion for Summary Judgment Re: 2007 Survey filed by Plaintiffs Joyce Marie Adams, Luvern Harland Allen, Edgar Ames, Darla Jean Baker, James Alvin Baker, Deborah A. Balvage, Raymond T. Balvage, Sharon Marie Banta, Ralph Alvin Barfell, Jr, Janie Kay Bodine, Ray Bodine, Margaret Louise Braga, Richard Anthony Braga, Jr, Charles Thomas Caldwell, Sandi Kay Caldwell, Karen Campbell, Laren Willbur Coleman, Pamela Denise Coleman, Alvin Dee Colpitts, Corabelle Colpitts, Betty Gene Donoghue, Elizabeth Elaine Dupree, Joyce Elain Fischer, Jeannette H Headen, Carol Nadine Huestis, Glenn Richard Huestis, Barbara Jean Joy, Miriam Margaret Kennedy-Allen, Ethel May Kolb, Gerald Blair Kolb, Alfred Wesley Leach, Gloria Eileen Leach, Carolyn L Morris, Raymond Ernest Morris, Arnold Nadeau, Barbara Louise Pepper, Bob Pistone, Doris Pistone, Sharon Powell, Vern Powell, Earleen M Rutherford, Charles John Santineau, Lucas John Shimmin, Diane Smith, Don Smith, Donald Neil Stroud, Sharon Lee Stroud, Charles E. Weaver, Susan M. Weaver, Janet Marie West, Walter Gordon West, Beverly White, Bob White, Diane White re 133 MOTION for Summary Judgment Regarding 2007 Survey (Lynam, Joseph) (Entered: 04/30/2012)
142 REPLY, filed by Plaintiffs Joyce Marie Adams, Luvern Harland Allen, Edgar Ames, Darla Jean Baker, James Alvin Baker, Deborah A. Balvage, Raymond T. Balvage, Sharon Marie Banta, Ralph Alvin Barfell, Jr, Janie Kay Bodine, Ray Bodine, Margaret Louise Braga, Richard Anthony Braga, Jr, Charles Thomas Caldwell, Sandi Kay Caldwell, Karen Campbell, Laren Willbur Coleman, Pamela Denise Coleman, Alvin Dee Colpitts, Corabelle

05/04/2012 05/04/2012 05/04/2012
07/20/2012 07/20/2012 08/02/2012 08/20/2012 08/21/2012

Colpitts, Betty Gene Donoghue, Elizabeth Elaine Dupree, Joyce Elain Fischer, Jeannette H Headen, Carol Nadine Huestis, Glenn Richard Huestis, Barbara Jean Joy, Miriam Margaret KennedyAllen, Ethel May Kolb, Gerald Blair Kolb, Alfred Wesley Leach, Gloria Eileen Leach, Carolyn L Morris, Raymond Ernest Morris, Arnold Nadeau, Barbara Louise Pepper, Bob Pistone, Doris Pistone, Sharon Powell, Vern Powell, Earleen M Rutherford, Charles John Santineau, Lucas John Shimmin, Diane Smith, Don Smith, Donald Neil Stroud, Sharon Lee Stroud, Charles E. Weaver, Susan M. Weaver, Janet Marie West, Walter Gordon West, Beverly White, Bob White, Diane White, TO RESPONSE to 128 Second MOTION for Summary Judgment (Lynam, Joseph) (Entered: 05/04/2012)
143 REPLY, filed by Defendant Ryderwood Improvement and Service Association, Inc., TO RESPONSE to 133 MOTION for Summary Judgment Regarding 2007 Survey (Ross, Richard) (Entered: 05/04/2012)
144 DECLARATION of Sally-Gene DeBriae filed by Defendant Ryderwood Improvement and Service Association, Inc. re 133 MOTION for Summary Judgment Regarding 2007 Survey(Ross, Richard) (Entered: 05/04/2012)
145 DECLARATION of Richard D. Ross filed by Defendant Ryderwood Improvement and Service Association, Inc. re 133 MOTION for Summary Judgment Regarding 2007 Survey(Attachments: # 1 Exhibit A, # 2 Exhibit B)(Ross, Richard) (Entered: 05/04/2012)
146 ORDER by Judge Benjamin H Settle denying 128 Motion for Summary Judgment; denying 133 Motion for Summary Judgment.(TG) (Entered: 07/20/2012)
Set/Reset Deadlines: Amended Joint Status Report due by 8/3/2012. (TG) (Entered: 07/20/2012)
147 JOINT STATUS REPORT signed by all parties. (Lynam, Joseph) (Entered: 08/02/2012)
148 STIPULATION AND PROPOSED ORDER RE VOLUNTARY DISMISSAL OF SINGLE PLAINTIFF'S CLAIMS by parties. (Lynam, Joseph) (Entered: 08/20/2012)
149 STIPULATION AND ORDER by Judge Benjamin H Settle re 148 Stipulation filed by Joyce Marie Adams, et al. Plaintiff Edgar Ames terminated. (TG) (Entered: 08/21/2012)

08/28/2012
09/20/2012 10/01/2012 10/01/2012 10/05/2012

150 MINUTE ORDER SETTING TRIAL AND PRETRIAL DATES *TEN DAY* Jury Trial is set for 5/21/2013 at 9:00 AM in Courtroom E before Judge Benjamin H. Settle. Joinder of Parties due by 9/27/2012, Amended Pleadings due by 10/9/2012, Expert Witness Disclosure/Reports under FRCP 26(a)(2) due by 11/13/2012, Rebuttal Expert Disclosure/Reports due by 12/12/2012, Motions due by 12/24/2012, Discovery completed by 1/22/2013, Dispositive motions due by 2/20/2013, Settlement conference to be held by 3/22/2013, 39.1 mediation to be completed by 4/11/2013, Motions in Limine due by 4/15/2013, 39.1 Settlement Report due by 4/22/2013, Pretrial Order due by 4/29/2013, trial briefs/proposed voir dire/jury instructions due by 4/30/2013, Pretrial Conference set for 5/6/2013 at 9:00 AM in Courtroom E before Judge Benjamin H. Settle. (MGC) (Entered: 08/28/2012)
151 MOTION to Amend Second Amended Complaint by Plaintiffs Joyce Marie Adams, et al. Oral Argument Requested. (Attachments: # 1 Proposed Order) Noting Date 10/5/2012, (Lynam, Joseph) Modified on 10/10/2012 to abbreviate parties' names. (TG). (Entered: 09/20/2012)
152 RESPONSE, by Defendant Ryderwood Improvement and Service Association, Inc., to 151MOTION to Amend Second Amended Complaint. (Attachments: # 1 Proposed Order Denying Plaintiffs' Motion to Amend)(Ross, Richard) (Entered: 10/01/2012)
153 DECLARATION of Richard D. Ross filed by Defendant Ryderwood Improvement and Service Association, Inc. re 151 MOTION to Amend Second Amended Complaint(Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Ross, Richard) (Entered: 10/01/2012)
154 REPLY, filed by Plaintiffs Joyce Marie Adams, Luvern Harland Allen, Edgar Ames, Darla Jean Baker, James Alvin Baker, Deborah A. Balvage, Raymond T. Balvage, Sharon Marie Banta, Ralph Alvin Barfell, Jr, Janie Kay Bodine, Ray Bodine, Margaret Louise Braga, Richard Anthony Braga, Jr, Charles Thomas Caldwell, Sandi Kay Caldwell, Karen Campbell, Laren Willbur Coleman, Pamela Denise Coleman, Alvin Dee Colpitts, Corabelle Colpitts, Betty Gene Donoghue, Elizabeth Elaine Dupree, Joyce Elain Fischer, Jeannette H Headen, Carol Nadine Huestis, Glenn Richard Huestis, Barbara Jean Joy, Miriam Margaret KennedyAllen, Ethel May Kolb, Gerald Blair Kolb, Alfred Wesley Leach, Gloria Eileen Leach, Carolyn L Morris, Raymond Ernest Morris, Arnold Nadeau, Barbara Louise Pepper, Bob Pistone, Doris

10/05/2012 10/05/2012

Pistone, Sharon Powell, Vern Powell, Earleen M Rutherford, Charles John Santineau, Lucas John Shimmin, Diane Smith, Don Smith, Donald Neil Stroud, Sharon Lee Stroud, Charles E. Weaver, Susan M. Weaver, Janet Marie West, Walter Gordon West, Beverly White, Bob White, Diane White, TO RESPONSE to 151 MOTION to Amend Second Amended Complaint (Lynam, Joseph) (Entered: 10/05/2012)
155 DECLARATION of Joseph E. Lynam in Support of Plaintiffs' Motion to Amend Second Amended Complaint filed by Plaintiffs Joyce Marie Adams, Luvern Harland Allen, Edgar Ames, Darla Jean Baker, James Alvin Baker, Deborah A. Balvage, Raymond T. Balvage, Sharon Marie Banta, Ralph Alvin Barfell, Jr, Janie Kay Bodine, Ray Bodine, Margaret Louise Braga, Richard Anthony Braga, Jr, Charles Thomas Caldwell, Sandi Kay Caldwell, Karen Campbell, Laren Willbur Coleman, Pamela Denise Coleman, Alvin Dee Colpitts, Corabelle Colpitts, Betty Gene Donoghue, Elizabeth Elaine Dupree, Joyce Elain Fischer, Jeannette H Headen, Carol Nadine Huestis, Glenn Richard Huestis, Barbara Jean Joy, Miriam Margaret Kennedy-Allen, Ethel May Kolb, Gerald Blair Kolb, Alfred Wesley Leach, Gloria Eileen Leach, Carolyn L Morris, Raymond Ernest Morris, Arnold Nadeau, Barbara Louise Pepper, Bob Pistone, Doris Pistone, Sharon Powell, Vern Powell, Earleen M Rutherford, Charles John Santineau, Lucas John Shimmin, Diane Smith, Don Smith, Donald Neil Stroud, Sharon Lee Stroud, Charles E. Weaver, Susan M. Weaver, Janet Marie West, Walter Gordon West, Beverly White, Bob White, Diane White re 151 MOTION to Amend Second Amended Complaint (Attachments: # 1 Exhibit A, p. 4-8)(Lynam, Joseph) (Entered: 10/05/2012)
156 DECLARATION of Janie Kay Bodine in Support of Plaintiffs' Motion to Amend Second Amended Complaint filed by Plaintiffs Joyce Marie Adams, Luvern Harland Allen, Edgar Ames, Darla Jean Baker, James Alvin Baker, Deborah A. Balvage, Raymond T. Balvage, Sharon Marie Banta, Ralph Alvin Barfell, Jr, Janie Kay Bodine, Ray Bodine, Margaret Louise Braga, Richard Anthony Braga, Jr, Charles Thomas Caldwell, Sandi Kay Caldwell, Karen Campbell, Laren Willbur Coleman, Pamela Denise Coleman, Alvin Dee Colpitts, Corabelle Colpitts, Betty Gene Donoghue, Elizabeth Elaine Dupree, Joyce Elain Fischer, Jeannette H Headen, Carol Nadine Huestis, Glenn Richard Huestis, Barbara Jean Joy, Miriam Margaret Kennedy-Allen, Ethel May Kolb, Gerald Blair Kolb, Alfred Wesley Leach, Gloria Eileen Leach, Carolyn L Morris, Raymond Ernest Morris, Arnold Nadeau, Barbara Louise Pepper, Bob Pistone, Doris Pistone, Sharon Powell, Vern Powell,

10/05/2012 10/05/2012

Earleen M Rutherford, Charles John Santineau, Lucas John Shimmin, Diane Smith, Don Smith, Donald Neil Stroud, Sharon Lee Stroud, Charles E. Weaver, Susan M. Weaver, Janet Marie West, Walter Gordon West, Beverly White, Bob White, Diane White re 151 MOTION to Amend Second Amended Complaint (Lynam, Joseph) (Entered: 10/05/2012)
157 DECLARATION of Deborah A. Balvage in Support of Plaintiffs' Motion to Amend Second Amended Complaint filed by Plaintiffs Joyce Marie Adams, Luvern Harland Allen, Edgar Ames, Darla Jean Baker, James Alvin Baker, Deborah A. Balvage, Raymond T. Balvage, Sharon Marie Banta, Ralph Alvin Barfell, Jr, Janie Kay Bodine, Ray Bodine, Margaret Louise Braga, Richard Anthony Braga, Jr, Charles Thomas Caldwell, Sandi Kay Caldwell, Karen Campbell, Laren Willbur Coleman, Pamela Denise Coleman, Alvin Dee Colpitts, Corabelle Colpitts, Betty Gene Donoghue, Elizabeth Elaine Dupree, Joyce Elain Fischer, Jeannette H Headen, Carol Nadine Huestis, Glenn Richard Huestis, Barbara Jean Joy, Miriam Margaret Kennedy-Allen, Ethel May Kolb, Gerald Blair Kolb, Alfred Wesley Leach, Gloria Eileen Leach, Carolyn L Morris, Raymond Ernest Morris, Arnold Nadeau, Barbara Louise Pepper, Bob Pistone, Doris Pistone, Sharon Powell, Vern Powell, Earleen M Rutherford, Charles John Santineau, Lucas John Shimmin, Diane Smith, Don Smith, Donald Neil Stroud, Sharon Lee Stroud, Charles E. Weaver, Susan M. Weaver, Janet Marie West, Walter Gordon West, Beverly White, Bob White, Diane White re 151 MOTION to Amend Second Amended Complaint (Lynam, Joseph) (Entered: 10/05/2012)
158 DECLARATION of Charles E. Weaver in Support of Plaintiffs' Motion to Amend Second Amended Complaint filed by Plaintiffs Joyce Marie Adams, Luvern Harland Allen, Edgar Ames, Darla Jean Baker, James Alvin Baker, Deborah A. Balvage, Raymond T. Balvage, Sharon Marie Banta, Ralph Alvin Barfell, Jr, Janie Kay Bodine, Ray Bodine, Margaret Louise Braga, Richard Anthony Braga, Jr, Charles Thomas Caldwell, Sandi Kay Caldwell, Karen Campbell, Laren Willbur Coleman, Pamela Denise Coleman, Alvin Dee Colpitts, Corabelle Colpitts, Betty Gene Donoghue, Elizabeth Elaine Dupree, Joyce Elain Fischer, Jeannette H Headen, Carol Nadine Huestis, Glenn Richard Huestis, Barbara Jean Joy, Miriam Margaret Kennedy-Allen, Ethel May Kolb, Gerald Blair Kolb, Alfred Wesley Leach, Gloria Eileen Leach, Carolyn L Morris, Raymond Ernest Morris, Arnold Nadeau, Barbara Louise Pepper, Bob Pistone, Doris Pistone, Sharon Powell, Vern Powell, Earleen M Rutherford, Charles John Santineau, Lucas John Shimmin, Diane Smith, Don Smith, Donald Neil Stroud, Sharon

10/09/2012 10/10/2012 10/10/2012
10/10/2012 10/11/2012

Lee Stroud, Charles E. Weaver, Susan M. Weaver, Janet Marie West, Walter Gordon West, Beverly White, Bob White, Diane White re 151 MOTION to Amend Second Amended Complaint (Lynam, Joseph) (Entered: 10/05/2012)
159 NOTICE OF INTENT TO FILE MTN TO STRIKE AND SURREPLY re 151 MOTION to Amend Second Amended Complaint ; filed by Defendant Ryderwood Improvement and Service Association, Inc.. (Ross, Richard) (Entered: 10/09/2012)
160 SURREPLY filed by Defendant Ryderwood Improvement and Service Association, Inc. re 151 MOTION to Amend Second Amended Complaint (Ross, Richard) (Entered: 10/10/2012)
161 Second DECLARATION of Richard D. Ross filed by Defendant Ryderwood Improvement and Service Association, Inc. re 151 MOTION to Amend Second Amended Complaint(Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Ross, Richard) (Entered: 10/10/2012)
162 DECLARATION of Sally-Gene DeBriae filed by Defendant Ryderwood Improvement and Service Association, Inc. re 151 MOTION to Amend Second Amended Complaint (Ross, Richard) (Entered: 10/10/2012)
163 RESPONSE, by Plaintiffs Joyce Marie Adams, Luvern Harland Allen, Edgar Ames, Darla Jean Baker, James Alvin Baker, Deborah A. Balvage, Raymond T. Balvage, Sharon Marie Banta, Ralph Alvin Barfell, Jr, Janie Kay Bodine, Ray Bodine, Margaret Louise Braga, Richard Anthony Braga, Jr, Charles Thomas Caldwell, Sandi Kay Caldwell, Karen Campbell, Laren Willbur Coleman, Pamela Denise Coleman, Alvin Dee Colpitts, Corabelle Colpitts, Betty Gene Donoghue, Elizabeth Elaine Dupree, Joyce Elain Fischer, Jeannette H Headen, Carol Nadine Huestis, Glenn Richard Huestis, Barbara Jean Joy, Miriam Margaret KennedyAllen, Ethel May Kolb, Gerald Blair Kolb, Alfred Wesley Leach, Gloria Eileen Leach, Carolyn L Morris, Raymond Ernest Morris, Arnold Nadeau, Barbara Louise Pepper, Bob Pistone, Doris Pistone, Sharon Powell, Vern Powell, Earleen M Rutherford, Charles John Santineau, Lucas John Shimmin, Diane Smith, Don Smith, Donald Neil Stroud, Sharon Lee Stroud, Charles E. Weaver, Susan M. Weaver, Janet Marie West, Walter Gordon West, Beverly White, Bob White, Diane White, to 151 MOTION to Amend Second Amended Complaint. (Lynam, Joseph) (Entered: 10/11/2012)

10/26/2012 10/29/2012 10/30/2012 11/01/2012 11/01/2012 11/02/2012
11/05/2012 11/06/2012

164 ORDER by Judge Benjamin H Settle granting 151 Motion to Amend. Counsel is directed to e-file their Amended Complaint by 11/2/2012. (TG) (Entered: 10/26/2012)
165 STIPULATION AND PROPOSED ORDER RE VOLUNTARY DISMISSAL OF PLAINTIFF DUPREE by parties. (Lynam, Joseph) (Entered: 10/29/2012)
166 STIPULATION AND ORDER by Judge Benjamin H Settle re 165 Stipulation filed by Joyce Marie Adams, et al., dismissing Plaintiff Elizabeth Dupree. (TG) (Entered: 10/30/2012)
167 STIPULATION AND PROPOSED ORDER RE DECEASED PLAINTIFFS by parties. (Lynam, Joseph) (Entered: 11/01/2012)
168 STIPULATION AND ORDER 167 re Deceased Plaintiffs: Earleen M Rutherford and Arnold Nadeau are hereby voluntarily dismissed; and Ethel May Kolb and Ray Bodine are terminated. Signed by Judge Benjamin H Settle. (CMG) (Entered: 11/01/2012)
169 Third AMENDED COMPLAINT FOR VIOLATION OF FEDERAL FAIR HOUSING ACT AND OTHER CLAIMS against defendant(s) All Defendants, filed by Richard Anthony Braga, Jr, Don Smith, Charles Thomas Caldwell, Sharon Lee Stroud, Miriam Margaret Kennedy-Allen, Susan M. Weaver, Barbara Jean Joy, Raymond T. Balvage, Vern Powell, Karen Campbell, Glenn Richard Huestis, Walter Gordon West, Bob Pistone, Alvin Dee Colpitts, Charles John Santineau, Janie Kay Bodine, Lucas John Shimmin, Doris Pistone, James Alvin Baker, Bob White, Sandi Kay Caldwell, Donald Neil Stroud, Laren Willbur Coleman, Jeannette H Headen, Sharon Marie Banta, Betty Gene Donoghue, Diane White, Diane Smith, Luvern Harland Allen, Carol Nadine Huestis, Carolyn L Morris, Darla Jean Baker, Corabelle Colpitts, Raymond Ernest Morris, Alfred Wesley Leach, Margaret Louise Braga, Sharon Powell, Gerald Blair Kolb, Barbara Louise Pepper, Deborah A. Balvage, Pamela Denise Coleman, Beverly White, Joyce Marie Adams, Joyce Elain Fischer, Janet Marie West, Ralph Alvin Barfell, Jr, Gloria Eileen Leach, Charles E. Weaver.(Lynam, Joseph) (Entered: 11/02/2012)
170 STIPULATION AND PROPOSED ORDER RE WITHDRAWAL OF COUNSEL CONCERNING PLAINTIFFS WHITE by parties. (Lynam, Joseph) (Entered: 11/05/2012)
171 STIPULATION and ORDER re withdrawal of Attorney Joseph E Lynam and Lane Powell for Plaintiffs Bob White and Diane

11/09/2012 11/12/2012 11/14/2012 11/14/2012
01/10/2013 01/10/2013 03/21/2013 03/28/2013

White. Signed by Judge Benjamin H. Settle. (MGC) (Entered: 11/06/2012)
172 NOTICE: Plaintiff Bob White has registered to electronically file and receive electronic service in this case. (KN) (Entered: 11/09/2012)
173 STIPULATION AND PROPOSED ORDER RE EXTENSION OF TRIAL DATE AND CASE SCHEDULE by parties. (Lynam, Joseph) (Entered: 11/12/2012)
174 STIPULATION AND ORDER Re Extension of Trial Date and Case Schedule. Signed by Judge Benjamin H. Settle. (MGC) (Entered: 11/14/2012)
175 MINUTE ORDER SETTING TRIAL AND PRETRIAL DATES *TWENTY DAY* Jury Trial is set for 10/8/2013 at 9:00 AM in Courtroom E before Judge Benjamin H. Settle. Joinder of Parties due by 12/14/2012, Amended Pleadings due by 12/26/2012, Expert Witness Disclosure/Reports under FRCP 26(a)(2) due by 4/1/2013, Rebuttal Expert Disclosure/Reports due by 5/1/2013, Motions due by 5/13/2013, Discovery completed by 6/10/2013, Dispositive motions due by 7/10/2013, Settlement conference to be held by 8/9/2013, 39.1 mediation to be completed by 8/29/2013, Motions in Limine due by 9/3/2013, 39.1 Settlement Report due by 9/9/2013, Pretrial Order due by 9/16/2013, trial briefs/proposed voir dire/jury instructions due by 9/17/2013, Pretrial Conference set for 9/23/2013 at 9:00 AM in Courtroom E before Judge Benjamin H. Settle. (MGC) (cc: Diane White via mail) (Entered: 11/14/2012)
176 STIPULATION AND PROPOSED ORDER RE VOLUNTARY DISMISSAL OF PLAINTIFF SHIMMIN by parties. (Lynam, Joseph) (Entered: 01/10/2013)
177 STIPULATION AND ORDER by Judge Benjamin H Settle re 176 Stipulation filed by Joyce Marie Adams, et al. Plaintiff Lucas John Shimmin terminated. (TG) (Entered: 01/10/2013)
178 MOTION to Withdraw as Attorney / Counsel for Certain Plaintiffs by Plaintiffs Raymond Balvage, et al. (Attachments: # 1 Proposed Order) Noting Date 4/5/2013, (Lynam, Joseph) Modified on 3/21/2013 (TG). (Entered: 03/21/2013)
179 RESPONSE, by Defendant Ryderwood Improvement and Service Association, Inc., to 178MOTION to Withdraw as Attorney /

04/04/2013
04/04/2013 04/04/2013 04/04/2013 04/08/2013 04/15/2013

Counsel for Certain Plaintiffs. (Ross, Richard) (Entered: 03/28/2013)
180 NOTICE of Appearance by attorney Stephen Garrett Leatham on behalf of Plaintiffs Joyce Marie Adams, Luvern Harland Allen, Darla Jean Baker, James Alvin Baker, Deborah A. Balvage, Raymond T. Balvage, Sharon Marie Banta, Ralph Alvin Barfell, Jr, Janie Kay Bodine, Margaret Louise Braga, Richard Anthony Braga, Jr, Charles Thomas Caldwell, Sandi Kay Caldwell, Karen Campbell, Laren Willbur Coleman, Pamela Denise Coleman, Alvin Dee Colpitts, Corabelle Colpitts, Betty Gene Donoghue, Joyce Elain Fischer, Carol Nadine Huestis, Glenn Richard Huestis, Barbara Jean Joy, Miriam Margaret Kennedy-Allen, Gerald Blair Kolb, Alfred Wesley Leach, Gloria Eileen Leach, Carolyn L Morris, Raymond Ernest Morris, Barbara Louise Pepper, Bob Pistone, Doris Pistone, Sharon Powell, Vern Powell, Charles John Santineau, Diane Smith, Don Smith, Donald Neil Stroud, Sharon Lee Stroud, Charles E. Weaver, Susan M. Weaver, Janet Marie West, Walter Gordon West, Beverly White, Counter Defendants Deborah A. Balvage, Raymond T. Balvage, Charles E. Weaver, Susan M. Weaver. (Leatham, Stephen) (Entered: 04/04/2013)
181 MOTION to Bifurcate by Defendant Ryderwood Improvement and Service Association, Inc.. (Attachments: # 1 Proposed Order) Noting Date 4/19/2013, (Goldstein, Steven) (Entered: 04/04/2013)
182 DECLARATION of Steven Goldstein In Support of Defendant's Motion to Bifurcate filed by Defendant Ryderwood Improvement and Service Association, Inc. re 181 MOTION to Bifurcate (Goldstein, Steven) (Entered: 04/04/2013)
183 DECLARATION of Alicia Pierce in Support of Defendant's Motion for Bifurcation filed by Counter Claimant Ryderwood Improvement and Service Association, Inc. re 181 MOTION to Bifurcate (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11 Exhibit, # 12 Exhibit, # 13Exhibit)(Goldstein, Steven) (Entered: 04/04/2013)
184 ORDER by Judge Benjamin H Settle granting 178 Motion to Withdraw as Attorney. Attorneys Abraham K Lorber and Joseph E Lynam terminated.(TG) (Entered: 04/08/2013)
185 RESPONSE, by Plaintiffs Joyce Marie Adams, Luvern Harland Allen, Darla Jean Baker, James Alvin Baker, Deborah A. Balvage, Raymond T. Balvage, Sharon Marie Banta, Ralph Alvin Barfell, Jr, Janie Kay Bodine, Margaret Louise Braga, Richard Anthony

04/18/2013 04/18/2013 04/18/2013 04/18/2013

Braga, Jr, Charles Thomas Caldwell, Sandi Kay Caldwell, Karen Campbell, Laren Willbur Coleman, Pamela Denise Coleman, Alvin Dee Colpitts, Corabelle Colpitts, Betty Gene Donoghue, Joyce Elain Fischer, Carol Nadine Huestis, Glenn Richard Huestis, Barbara Jean Joy, Miriam Margaret Kennedy-Allen, Gerald Blair Kolb, Alfred Wesley Leach, Gloria Eileen Leach, Carolyn L Morris, Raymond Ernest Morris, Barbara Louise Pepper, Bob Pistone, Doris Pistone, Sharon Powell, Vern Powell, Charles John Santineau, Diane Smith, Don Smith, Donald Neil Stroud, Sharon Lee Stroud, Charles E. Weaver, Susan M. Weaver, Janet Marie West, Walter Gordon West, Beverly White, Counter Defendants Deborah A. Balvage, Raymond T. Balvage, Charles E. Weaver, Susan M. Weaver, to 181 MOTION to Bifurcate . (Leatham, Stephen) (Entered: 04/15/2013)
186 MOTION for Partial Summary Judgment Regarding Retaliation Claims by Defendant Ryderwood Improvement and Service Association, Inc.. Oral Argument Requested. (Attachments: # 1 Proposed Order) Noting Date 5/10/2013, (Ross, Richard) (Entered: 04/18/2013)
187 DECLARATION of Sally-Gene DeBriae filed by Defendant Ryderwood Improvement and Service Association, Inc. re 186 MOTION for Partial Summary Judgment Regarding Retaliation Claims (Attachments: # 1 Exhibit A through G)(Ross, Richard) (Entered: 04/18/2013)
188 DECLARATION of Alicia Pierce filed by Defendant Ryderwood Improvement and Service Association, Inc. re 186 MOTION for Partial Summary Judgment Regarding Retaliation Claims (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(Ross, Richard) (Entered: 04/18/2013)
189 Supplemental DECLARATION of Alicia Pierce filed by Defendant Ryderwood Improvement and Service Association, Inc. re 186 MOTION for Partial Summary Judgment Regarding Retaliation Claims (Attachments: # 1 Exhibit 5, # 2 Exhibit 6, # 3 Exhibit 7, # 4 Exhibit 8, # 5Exhibit 9, # 6 Exhibit 10, # 7 Exhibit 11, # 8 Exhibit 12, # 9 Exhibit 13, # 10 Exhibit 14, # 11Exhibit 15, # 12 Exhibit 16, # 13 Exhibit 17, # 14 Exhibit 18, # 15 Exhibit 19, # 16 Exhibit 20, # 17 Exhibit 21, # 18 Exhibit 22, # 19 Exhibit 23, # 20 Exhibit 24, # 21 Exhibit 25, # 22Exhibit 26, # 23 Exhibit 27, # 24 Exhibit 28, # 25 Exhibit 29)(Ross, Richard) (Entered: 04/18/2013)

04/18/2013 04/18/2013 04/19/2013 04/26/2013 04/29/2013 05/03/2013 05/03/2013
05/06/2013

190 DECLARATION of Richard D. Ross filed by Defendant Ryderwood Improvement and Service Association, Inc. re 186 MOTION for Partial Summary Judgment Regarding Retaliation Claims (Attachments: # 1 Exhibit A to E)(Ross, Richard) (Entered: 04/18/2013)
191 DECLARATION of Michael Lutz filed by Defendant Ryderwood Improvement and Service Association, Inc. re 186 MOTION for Partial Summary Judgment Regarding Retaliation Claims (Ross, Richard) (Entered: 04/18/2013)
192 REPLY, filed by Defendant Ryderwood Improvement and Service Association, Inc., TO RESPONSE to 181 MOTION to Bifurcate (Goldstein, Steven) (Entered: 04/19/2013)
193 Letter from Stephen G. Leatham to Honorable Benjamin H. Settle. (Leatham, Stephen) (Entered: 04/26/2013)
194 ORDER by Judge Benjamin H Settle. Bench Trial is set for 10/8/2013 at 09:00 AM before Judge Benjamin H Settle. (TG) (Entered: 04/29/2013)
195 ANSWER to 169 Amended Complaint,,,, RISA's Answer, Affirmative Defenses, and Counterclaim to Plaintiffs' Third Amended Complaint, COUNTERCLAIM against plaintiff All Plaintiffs by Ryderwood Improvement and Service Association, Inc..(Goldstein, Steven) (Entered: 05/03/2013)
196 AMENDED MINUTE ORDER SETTING TRIAL AND PRETRIAL DATES - *TWENTY DAY* Bench Trial is set for 10/8/2013 at 9:00 AM in Courtroom before Judge Benjamin H Settle. Joinder of Parties due by 6/3/2013, Amended Pleadings due by 6/13/2013, Expert Witness Disclosure/Reports under FRCP 26(a)(2) due by 4/1/2013, Rebuttal Expert Disclosure/Reports due by 5/1/2013, Motions due by 5/13/2013, Discovery completed by 6/10/2013, Dispositive motions due by 7/10/2013, Settlement conference to be held by 8/9/2013, 39.1 mediation to be completed by 8/29/2013, Motions in Limine due by 9/3/2013, 39.1 Settlement Report due by 9/9/2013, Pretrial Order due by 9/16/2013, Pretrial Conference set for 9/23/2013 at 9:00 AM in Courtroom E before Judge Benjamin H. Settle. Trial briefs to be submitted by 9/17/2013. Signed by Judge Benjamin H. Settle. (MGC) (Entered: 05/03/2013)
197 RESPONSE, by Plaintiffs Joyce Marie Adams, Luvern Harland Allen, Darla Jean Baker, James Alvin Baker, Deborah A. Balvage, Raymond T. Balvage, Sharon Marie Banta, Ralph Alvin Barfell,

05/06/2013 05/06/2013

Jr, Janie Kay Bodine, Margaret Louise Braga, Richard Anthony Braga, Jr, Charles Thomas Caldwell, Sandi Kay Caldwell, Karen Campbell, Laren Willbur Coleman, Pamela Denise Coleman, Alvin Dee Colpitts, Corabelle Colpitts, Betty Gene Donoghue, Joyce Elain Fischer, Carol Nadine Huestis, Glenn Richard Huestis, Barbara Jean Joy, Miriam Margaret Kennedy-Allen, Gerald Blair Kolb, Alfred Wesley Leach, Gloria Eileen Leach, Carolyn L Morris, Raymond Ernest Morris, Barbara Louise Pepper, Bob Pistone, Doris Pistone, Sharon Powell, Vern Powell, Charles John Santineau, Diane Smith, Don Smith, Donald Neil Stroud, Sharon Lee Stroud, Charles E. Weaver, Susan M. Weaver, Janet Marie West, Walter Gordon West, Beverly White, to 186 MOTION for Partial Summary Judgment Regarding Retaliation Claims. (Leatham, Stephen) (Entered: 05/06/2013)
198 DECLARATION of Stephen G. Leatham in Opposition to Motion for Summary Judgment filed by Plaintiffs Joyce Marie Adams, Luvern Harland Allen, Darla Jean Baker, James Alvin Baker, Deborah A. Balvage, Raymond T. Balvage, Sharon Marie Banta, Ralph Alvin Barfell, Jr, Janie Kay Bodine, Margaret Louise Braga, Richard Anthony Braga, Jr, Charles Thomas Caldwell, Sandi Kay Caldwell, Karen Campbell, Laren Willbur Coleman, Pamela Denise Coleman, Alvin Dee Colpitts, Corabelle Colpitts, Betty Gene Donoghue, Joyce Elain Fischer, Carol Nadine Huestis, Glenn Richard Huestis, Barbara Jean Joy, Miriam Margaret KennedyAllen, Gerald Blair Kolb, Alfred Wesley Leach, Gloria Eileen Leach, Carolyn L Morris, Raymond Ernest Morris, Barbara Louise Pepper, Bob Pistone, Doris Pistone, Sharon Powell, Vern Powell, Charles John Santineau, Diane Smith, Don Smith, Donald Neil Stroud, Sharon Lee Stroud, Charles E. Weaver, Susan M. Weaver, Janet Marie West, Walter Gordon West, Beverly White re 186 MOTION for Partial Summary Judgment Regarding Retaliation Claims(Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6Exhibit F)(Leatham, Stephen) (Entered: 05/06/2013)
199 DEMAND for JURY TRIAL by Plaintiffs Joyce Marie Adams, Luvern Harland Allen, Darla Jean Baker, James Alvin Baker, Deborah A. Balvage, Raymond T. Balvage, Sharon Marie Banta, Ralph Alvin Barfell, Jr, Janie Kay Bodine, Margaret Louise Braga, Richard Anthony Braga, Jr, Charles Thomas Caldwell, Sandi Kay Caldwell, Karen Campbell, Laren Willbur Coleman, Pamela Denise Coleman, Alvin Dee Colpitts, Corabelle Colpitts, Betty Gene Donoghue, Joyce Elain Fischer, Carol Nadine Huestis, Glenn Richard Huestis, Barbara Jean Joy, Miriam Margaret KennedyAllen, Gerald Blair Kolb, Alfred Wesley Leach, Gloria Eileen

05/06/2013
05/09/2013 05/10/2013 05/13/2013 05/20/2013 05/21/2013

Leach, Carolyn L Morris, Raymond Ernest Morris, Barbara Louise Pepper, Bob Pistone, Doris Pistone, Sharon Powell, Vern Powell, Charles John Santineau, Diane Smith, Don Smith, Donald Neil Stroud, Sharon Lee Stroud, Charles E. Weaver, Susan M. Weaver, Janet Marie West, Walter Gordon West, Beverly White. (Leatham, Stephen) (Entered: 05/06/2013)
200 MOTION for Order Setting Jury Trial by Plaintiffs Joyce Marie Adams, Luvern Harland Allen, Darla Jean Baker, James Alvin Baker, Deborah A. Balvage, Raymond T. Balvage, Sharon Marie Banta, Ralph Alvin Barfell, Jr, Janie Kay Bodine, Margaret Louise Braga, Richard Anthony Braga, Jr, Charles Thomas Caldwell, Sandi Kay Caldwell, Karen Campbell, Laren Willbur Coleman, Pamela Denise Coleman, Alvin Dee Colpitts, Corabelle Colpitts, Betty Gene Donoghue, Joyce Elain Fischer, Carol Nadine Huestis, Glenn Richard Huestis, Barbara Jean Joy, Miriam Margaret Kennedy-Allen, Gerald Blair Kolb, Alfred Wesley Leach, Gloria Eileen Leach, Carolyn L Morris, Raymond Ernest Morris, Barbara Louise Pepper, Bob Pistone, Doris Pistone, Sharon Powell, Vern Powell, Charles John Santineau, Diane Smith, Don Smith, Donald Neil Stroud, Sharon Lee Stroud, Charles E. Weaver, Susan M. Weaver, Janet Marie West, Walter Gordon West, Beverly White. (Attachments: # 1 Proposed Order) Noting Date 5/24/2013, (Leatham, Stephen) (Entered: 05/06/2013)
201 NOTICE of Hearing on Motion re 181 MOTION to Bifurcate: Motion Hearing set for 5/21/2013 at 3:30 PM in Courtroom E before Judge Benjamin H. Settle.(MGC) (Entered: 05/09/2013)
202 REPLY, filed by Defendant Ryderwood Improvement and Service Association, Inc., TO RESPONSE to 186 MOTION for Partial Summary Judgment Regarding Retaliation Claims(Goldstein, Steven) (Entered: 05/10/2013)
Noting Date re 181 MOTION to Bifurcate is RESET for 5/21/2013. (MGC) (Entered: 05/13/2013)
203 RESPONSE, by Defendant Ryderwood Improvement and Service Association, Inc., to 200MOTION for Order Setting Jury Trial. (Ross, Richard) (Entered: 05/20/2013)
204 REPLY, filed by Plaintiffs Joyce Marie Adams, Luvern Harland Allen, Darla Jean Baker, James Alvin Baker, Deborah A. Balvage, Raymond T. Balvage, Sharon Marie Banta, Ralph Alvin Barfell, Jr, Janie Kay Bodine, Margaret Louise Braga, Richard Anthony Braga, Jr, Charles Thomas Caldwell, Sandi Kay Caldwell, Karen Campbell, Laren Willbur Coleman, Pamela Denise Coleman,

05/21/2013
05/22/2013
05/28/2013 05/29/2013 05/29/2013

Alvin Dee Colpitts, Corabelle Colpitts, Betty Gene Donoghue, Joyce Elain Fischer, Carol Nadine Huestis, Glenn Richard Huestis, Barbara Jean Joy, Miriam Margaret Kennedy-Allen, Gerald Blair Kolb, Alfred Wesley Leach, Gloria Eileen Leach, Carolyn L Morris, Raymond Ernest Morris, Barbara Louise Pepper, Bob Pistone, Doris Pistone, Sharon Powell, Vern Powell, Charles John Santineau, Diane Smith, Don Smith, Donald Neil Stroud, Sharon Lee Stroud, Charles E. Weaver, Susan M. Weaver, Janet Marie West, Walter Gordon West, Beverly White, TO RESPONSE to 200 MOTION for Order Setting Jury Trial (Leatham, Stephen) (Entered: 05/21/2013)
205 MINUTE ENTRY for Motion Hearing held on 5/21/2013 before Judge Benjamin H. Settle - Dep Clerk: Gretchen Craft; Pla Counsel: Stephen Leatham; Def Counsel: Steven Goldstein; CR: Teri Hendrix; Time of Hearing: 3:30; Courtroom: E; Court DENIES the motion to bifurcate and GRANTS the motion for Jury Trial. Jury trial is reset for 4/15/2014, a date which better accommodates the expected length of this trial. (MGC) (Entered: 05/22/2013)
206 MINUTE ORDER SETTING TRIAL AND PRETRIAL DATES *TWENTY DAY* Jury Trial is set for 4/15/2014 at 9:00 AM in Courtroom E before Judge Benjamin H. Settle. Dispositive motions due by 1/15/2014, Settlement conference to be held by 2/14/2014, Motions in Limine due by 3/10/2014, Pretrial Order due by 3/24/2014, trial briefs/proposed voir dire/jury instructions due by 3/25/2014, Pretrial Conference set for 3/31/2014 at 2:30 PM in Courtroom E before Judge Benjamin H. Settle. Signed by Judge Benjamin H. Settle. (MGC) (Entered: 05/22/2013)
207 ORDER by Judge Benjamin H Settle granting in part and denying in part 186 Motion for Partial Summary Judgment.(TG) (Entered: 05/28/2013)
208 MOTION to Exclude Defendant RISA's Motion to Exclude Plaintiffs' Expert Huffer by Defendant Ryderwood Improvement and Service Association, Inc.. Noting Date 6/14/2013, (Goldstein, Steven) (Entered: 05/29/2013)
209 DECLARATION of Steve Goldstein in Support of Motion to Strike Expert filed by Defendant Ryderwood Improvement and Service Association, Inc. re 208 MOTION to Exclude Defendant RISA's Motion to Exclude Plaintiffs' Expert Huffer (Goldstein, Steven) (Entered: 05/29/2013)

05/29/2013 05/29/2013 05/29/2013 05/29/2013
05/29/2013

210 MOTION for Summary Judgment RISA's Motion for Summary Judgment Regarding Counterclaims For Unpaid Dues by Defendant Ryderwood Improvement and Service Association, Inc.. Noting Date 6/21/2013, (Goldstein, Steven) (Entered: 05/29/2013)
211 DECLARATION of Sally-Gene Debriae in Support of Motion for Summary Judgment re Counterclaims for Unpaid Dues filed by Defendant Ryderwood Improvement and Service Association, Inc. re 210 MOTION for Summary Judgment RISA's Motion for Summary Judgment Regarding Counterclaims For Unpaid Dues (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit)(Goldstein, Steven) (Entered: 05/29/2013)
212 MOTION to Modify Scheduling Order by Plaintiffs Joyce Marie Adams, et al. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Proposed Order) Noting Date 6/28/2013, (Leatham, Stephen) Modified on 6/10/2013 to shorten entry (TG). (Entered: 05/29/2013)
213 DECLARATION of Stephen G. Leatham filed by Plaintiffs Joyce Marie Adams, Luvern Harland Allen, Darla Jean Baker, James Alvin Baker, Deborah A. Balvage, Raymond T. Balvage, Sharon Marie Banta, Ralph Alvin Barfell, Jr, Janie Kay Bodine, Margaret Louise Braga, Richard Anthony Braga, Jr, Charles Thomas Caldwell, Sandi Kay Caldwell, Karen Campbell, Laren Willbur Coleman, Pamela Denise Coleman, Alvin Dee Colpitts, Corabelle Colpitts, Betty Gene Donoghue, Joyce Elain Fischer, Carol Nadine Huestis, Glenn Richard Huestis, Barbara Jean Joy, Miriam Margaret Kennedy-Allen, Gerald Blair Kolb, Alfred Wesley Leach, Gloria Eileen Leach, Carolyn L Morris, Raymond Ernest Morris, Barbara Louise Pepper, Bob Pistone, Doris Pistone, Sharon Powell, Vern Powell, Charles John Santineau, Diane Smith, Don Smith, Donald Neil Stroud, Sharon Lee Stroud, Charles E. Weaver, Susan M. Weaver, Janet Marie West, Walter Gordon West, Beverly White re 212MOTION to Modify Scheduling Order (Leatham, Stephen) (Entered: 05/29/2013)
214 DECLARATION of Karin Huffer filed by Plaintiffs Joyce Marie Adams, Luvern Harland Allen, Darla Jean Baker, James Alvin Baker, Deborah A. Balvage, Raymond T. Balvage, Sharon Marie Banta, Ralph Alvin Barfell, Jr, Janie Kay Bodine, Margaret Louise Braga, Richard Anthony Braga, Jr, Charles Thomas Caldwell, Sandi Kay Caldwell, Karen Campbell, Laren Willbur Coleman, Pamela Denise Coleman, Alvin Dee Colpitts, Corabelle Colpitts, Betty Gene Donoghue, Joyce Elain Fischer, Carol Nadine Huestis, Glenn Richard Huestis, Barbara Jean Joy, Miriam Margaret

05/31/2013
06/06/2013 06/10/2013

Kennedy-Allen, Gerald Blair Kolb, Alfred Wesley Leach, Gloria Eileen Leach, Carolyn L Morris, Raymond Ernest Morris, Barbara Louise Pepper, Bob Pistone, Doris Pistone, Sharon Powell, Vern Powell, Charles John Santineau, Diane Smith, Don Smith, Donald Neil Stroud, Sharon Lee Stroud, Charles E. Weaver, Susan M. Weaver, Janet Marie West, Walter Gordon West, Beverly White re 212 MOTION to Modify Scheduling Order (Leatham, Stephen) (Entered: 05/29/2013)
215 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Hearing held on 5/21/2013 before Judge Benjamin H. Settle.
Parties have ten (10) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days.
Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Information regarding the policy can be found on the court's website at www.wawd.uscourts.gov.
To purchase a copy of the transcript contact court reporter Teri Hendrix by telephone at 253-882-3831. or by e-mail at Teri_Hendrix@wawd.uscourts.gov.
. Release of Transcript Restriction set for 8/29/2013, (Hendrix, Teri) (Entered: 05/31/2013)
216 NOTICE Of Lane Powell's Attorney's Lien ; filed by Interested Party Joseph E. Lynam. (Lynam, Joseph) (Entered: 06/06/2013)
217 RESPONSE, by Plaintiffs Joyce Marie Adams, Luvern Harland Allen, Darla Jean Baker, James Alvin Baker, Deborah A. Balvage, Raymond T. Balvage, Sharon Marie Banta, Ralph Alvin Barfell, Jr, Janie Kay Bodine, Margaret Louise Braga, Richard Anthony Braga, Jr, Charles Thomas Caldwell, Sandi Kay Caldwell, Karen Campbell, Laren Willbur Coleman, Pamela Denise Coleman, Alvin Dee Colpitts, Corabelle Colpitts, Betty Gene Donoghue, Joyce Elain Fischer, Carol Nadine Huestis, Glenn Richard Huestis, Barbara Jean Joy, Miriam Margaret Kennedy-Allen, Gerald Blair Kolb, Alfred Wesley Leach, Gloria Eileen Leach, Carolyn L Morris, Raymond Ernest Morris, Barbara Louise Pepper, Bob Pistone, Doris Pistone, Sharon Powell, Vern Powell, Charles John Santineau, Diane Smith, Don Smith, Donald Neil Stroud, Sharon

06/10/2013 06/10/2013

Lee Stroud, Charles E. Weaver, Susan M. Weaver, Janet Marie West, Walter Gordon West, Beverly White, to 208 MOTION to Exclude Defendant RISA's Motion to Exclude Plaintiffs' Expert Huffer. (Attachments: # 1 Proposed Order)(Leatham, Stephen) (Entered: 06/10/2013)
218 DECLARATION of Stephen G. Leatham in Support of Plaintiffs' Response to Defendant's Motion to Exclude Plaintiffs' Expert Huffer filed by Plaintiffs Joyce Marie Adams, Luvern Harland Allen, Darla Jean Baker, James Alvin Baker, Deborah A. Balvage, Raymond T. Balvage, Sharon Marie Banta, Ralph Alvin Barfell, Jr, Janie Kay Bodine, Margaret Louise Braga, Richard Anthony Braga, Jr, Charles Thomas Caldwell, Sandi Kay Caldwell, Karen Campbell, Laren Willbur Coleman, Pamela Denise Coleman, Alvin Dee Colpitts, Corabelle Colpitts, Betty Gene Donoghue, Joyce Elain Fischer, Carol Nadine Huestis, Glenn Richard Huestis, Barbara Jean Joy, Miriam Margaret Kennedy-Allen, Gerald Blair Kolb, Alfred Wesley Leach, Gloria Eileen Leach, Carolyn L Morris, Raymond Ernest Morris, Barbara Louise Pepper, Bob Pistone, Doris Pistone, Sharon Powell, Vern Powell, Charles John Santineau, Diane Smith, Don Smith, Donald Neil Stroud, Sharon Lee Stroud, Charles E. Weaver, Susan M. Weaver, Janet Marie West, Walter Gordon West, Beverly White re 208MOTION to Exclude Defendant RISA's Motion to Exclude Plaintiffs' Expert Huffer(Attachments: # 1 Exhibit A)(Leatham, Stephen) (Entered: 06/10/2013)
219 MOTION for Reconsideration or Clarification by Plaintiffs Joyce Marie Adams, Luvern Harland Allen, Darla Jean Baker, James Alvin Baker, Deborah A. Balvage, Raymond T. Balvage, Sharon Marie Banta, Ralph Alvin Barfell, Jr, Janie Kay Bodine, Margaret Louise Braga, Richard Anthony Braga, Jr, Charles Thomas Caldwell, Sandi Kay Caldwell, Karen Campbell, Laren Willbur Coleman, Pamela Denise Coleman, Alvin Dee Colpitts, Corabelle Colpitts, Betty Gene Donoghue, Joyce Elain Fischer, Carol Nadine Huestis, Glenn Richard Huestis, Barbara Jean Joy, Miriam Margaret Kennedy-Allen, Gerald Blair Kolb, Alfred Wesley Leach, Gloria Eileen Leach, Carolyn L Morris, Raymond Ernest Morris, Barbara Louise Pepper, Bob Pistone, Doris Pistone, Sharon Powell, Vern Powell, Charles John Santineau, Diane Smith, Don Smith, Donald Neil Stroud, Sharon Lee Stroud, Charles E. Weaver, Susan M. Weaver, Janet Marie West, Walter Gordon West, Beverly White. Noting Date 6/10/2013, (Leatham, Stephen) (Entered: 06/10/2013)

06/10/2013
06/10/2013 06/13/2013 06/13/2013 06/17/2013

220 DECLARATION of Stephen G. Leatham filed by Plaintiffs Joyce Marie Adams, Luvern Harland Allen, Darla Jean Baker, James Alvin Baker, Deborah A. Balvage, Raymond T. Balvage, Sharon Marie Banta, Ralph Alvin Barfell, Jr, Janie Kay Bodine, Margaret Louise Braga, Richard Anthony Braga, Jr, Charles Thomas Caldwell, Sandi Kay Caldwell, Karen Campbell, Laren Willbur Coleman, Pamela Denise Coleman, Alvin Dee Colpitts, Corabelle Colpitts, Betty Gene Donoghue, Joyce Elain Fischer, Carol Nadine Huestis, Glenn Richard Huestis, Barbara Jean Joy, Miriam Margaret Kennedy-Allen, Gerald Blair Kolb, Alfred Wesley Leach, Gloria Eileen Leach, Carolyn L Morris, Raymond Ernest Morris, Barbara Louise Pepper, Bob Pistone, Doris Pistone, Sharon Powell, Vern Powell, Charles John Santineau, Diane Smith, Don Smith, Donald Neil Stroud, Sharon Lee Stroud, Charles E. Weaver, Susan M. Weaver, Janet Marie West, Walter Gordon West, Beverly White re 219MOTION for Reconsideration or Clarification (Attachments: # 1 Exhibit A)(Leatham, Stephen) (Entered: 06/10/2013)
221 ORDER denying 219 Motion for Reconsideration by Judge Benjamin H Settle.(TG) (Entered: 06/10/2013)
222 REPLY, filed by Defendant Ryderwood Improvement and Service Association, Inc., TO RESPONSE to 208 MOTION to Exclude Defendant RISA's Motion to Exclude Plaintiffs' Expert Huffer (Goldstein, Steven) (Entered: 06/13/2013)
223 DECLARATION of Steve Goldstein in Support of Reply in Support of Motion to Exclude Expert filed by Defendant Ryderwood Improvement and Service Association, Inc. re 208MOTION to Exclude Defendant RISA's Motion to Exclude Plaintiffs' Expert Huffer(Goldstein, Steven) (Entered: 06/13/2013)
224 RESPONSE, by Plaintiffs Joyce Marie Adams, Luvern Harland Allen, Darla Jean Baker, James Alvin Baker, Deborah A. Balvage, Raymond T. Balvage, Sharon Marie Banta, Ralph Alvin Barfell, Jr, Janie Kay Bodine, Margaret Louise Braga, Richard Anthony Braga, Jr, Charles Thomas Caldwell, Sandi Kay Caldwell, Karen Campbell, Laren Willbur Coleman, Pamela Denise Coleman, Alvin Dee Colpitts, Corabelle Colpitts, Betty Gene Donoghue, Joyce Elain Fischer, Carol Nadine Huestis, Glenn Richard Huestis, Barbara Jean Joy, Miriam Margaret Kennedy-Allen, Gerald Blair Kolb, Alfred Wesley Leach, Gloria Eileen Leach, Carolyn L Morris, Raymond Ernest Morris, Barbara Louise Pepper, Bob Pistone, Doris Pistone, Sharon Powell, Vern Powell, Charles John Santineau, Diane Smith, Don Smith, Donald Neil Stroud, Sharon

06/17/2013 06/17/2013

Lee Stroud, Charles E. Weaver, Susan M. Weaver, Janet Marie West, Walter Gordon West, Beverly White, to 210 MOTION for Summary Judgment RISA's Motion for Summary Judgment Regarding Counterclaims For Unpaid Dues. (Leatham, Stephen) (Entered: 06/17/2013)
225 DECLARATION of Stephen G. Leatham in Support of Response to Defendant's Motion for Summary Judgment re Unpaid Dues filed by Plaintiffs Joyce Marie Adams, Luvern Harland Allen, Darla Jean Baker, James Alvin Baker, Deborah A. Balvage, Raymond T. Balvage, Sharon Marie Banta, Ralph Alvin Barfell, Jr, Janie Kay Bodine, Margaret Louise Braga, Richard Anthony Braga, Jr, Charles Thomas Caldwell, Sandi Kay Caldwell, Karen Campbell, Laren Willbur Coleman, Pamela Denise Coleman, Alvin Dee Colpitts, Corabelle Colpitts, Betty Gene Donoghue, Joyce Elain Fischer, Carol Nadine Huestis, Glenn Richard Huestis, Barbara Jean Joy, Miriam Margaret Kennedy-Allen, Gerald Blair Kolb, Alfred Wesley Leach, Gloria Eileen Leach, Carolyn L Morris, Raymond Ernest Morris, Barbara Louise Pepper, Bob Pistone, Doris Pistone, Sharon Powell, Vern Powell, Charles John Santineau, Diane Smith, Don Smith, Donald Neil Stroud, Sharon Lee Stroud, Charles E. Weaver, Susan M. Weaver, Janet Marie West, Walter Gordon West, Beverly White re 210 MOTION for Summary Judgment RISA's Motion for Summary Judgment Regarding Counterclaims For Unpaid Dues(Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Leatham, Stephen) (Entered: 06/17/2013)
226 DECLARATION of Charles Weaver in Support of Response to Defendant's Motion for Summary Judgment re Unpaid Dues filed by Plaintiffs Joyce Marie Adams, Luvern Harland Allen, Darla Jean Baker, James Alvin Baker, Deborah A. Balvage, Raymond T. Balvage, Sharon Marie Banta, Ralph Alvin Barfell, Jr, Janie Kay Bodine, Margaret Louise Braga, Richard Anthony Braga, Jr, Charles Thomas Caldwell, Sandi Kay Caldwell, Karen Campbell, Laren Willbur Coleman, Pamela Denise Coleman, Alvin Dee Colpitts, Corabelle Colpitts, Betty Gene Donoghue, Joyce Elain Fischer, Carol Nadine Huestis, Glenn Richard Huestis, Barbara Jean Joy, Miriam Margaret Kennedy-Allen, Gerald Blair Kolb, Alfred Wesley Leach, Gloria Eileen Leach, Carolyn L Morris, Raymond Ernest Morris, Barbara Louise Pepper, Bob Pistone, Doris Pistone, Sharon Powell, Vern Powell, Charles John Santineau, Diane Smith, Don Smith, Donald Neil Stroud, Sharon Lee Stroud, Charles E. Weaver, Susan M. Weaver, Janet Marie West, Walter Gordon West, Beverly White re 210 MOTION for Summary Judgment RISA's Motion for Summary Judgment

06/19/2013 06/20/2013 06/20/2013
06/20/2013 07/09/2013 07/09/2013 07/23/2013 07/23/2013
07/23/2013

Regarding Counterclaims For Unpaid Dues(Leatham, Stephen) (Entered: 06/17/2013)
227 ORDER denying 208 Motion to Exclude by Judge Benjamin H Settle.(TG) (Entered: 06/19/2013)
228 REPLY, filed by Defendant Ryderwood Improvement and Service Association, Inc., TO RESPONSE to 210 MOTION for Summary Judgment RISA's Motion for Summary Judgment Regarding Counterclaims For Unpaid Dues (Goldstein, Steven) (Entered: 06/20/2013)
229 DECLARATION of Supplemental Declaration of Sally-Gene Debriae In Support of Motion for Summary Judgment Regarding Counterclaims For Unpaid Dues filed by Defendant Ryderwood Improvement and Service Association, Inc. re 210 MOTION for Summary Judgment RISA's Motion for Summary Judgment Regarding Counterclaims For Unpaid Dues(Goldstein, Steven) (Entered: 06/20/2013)
230 RESPONSE, by Defendant Ryderwood Improvement and Service Association, Inc., to 212MOTION to Modify Scheduling Order . (Goldstein, Steven) (Entered: 06/20/2013)
231 ORDER by Judge Benjamin H Settle granting 212 Motion to modify scheduling order. Rebuttal Expert Disclosure/Reports due by 8/1/2013, expert discovery to be completed by 9/10/2013.(TG) (Entered: 07/09/2013)
232 ORDER denying 210 Motion for Summary Judgment by Judge Benjamin H Settle.(TG) (Entered: 07/09/2013)
233 MOTION for Reconsideration re 232 Order on Motion for Summary Judgment by Defendant Ryderwood Improvement and Service Association, Inc.. Oral Argument Requested. Noting Date 7/23/2013, (Ross, Richard) (Entered: 07/23/2013)
234 PLEASE DISREGARD DECLARATION of Jeff Cummins filed by Defendant Ryderwood Improvement and Service Association, Inc. re 233 MOTION for Reconsideration re 232Order on Motion for Summary Judgment (Ross, Richard) Modified on 7/24/2013: error in the image; declaration resubmitted as ECF No #236 (CMG). (Entered: 07/23/2013)
235 DECLARATION of Dennis Knight filed by Defendant Ryderwood Improvement and Service Association, Inc. re 233 MOTION for Reconsideration re 232 Order on Motion for

07/24/2013 07/24/2013 07/24/2013 07/24/2013 08/05/2013 08/12/2013 11/07/2013 11/07/2013
12/02/2013

Summary Judgment (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5Exhibit E)(Ross, Richard) (Entered: 07/23/2013)
236 DECLARATION of Jeff Cummins filed by Defendant Ryderwood Improvement and Service Association, Inc. re 233 MOTION for Reconsideration re 232 Order on Motion for Summary Judgment (Ross, Richard) (Entered: 07/24/2013)
NOTICE of Docket Text Modification re 234 Declaration, : error in image, document resubmitted under ECF No. 236 (CMG) (Entered: 07/24/2013)
237 PRAECIPE to attach document (Praecipe) Declaration of Dennis Knight re 235 Declaration, by Defendant Ryderwood Improvement and Service Association, Inc.. (Ross, Richard) (Entered: 07/24/2013)
238 ORDER denying 233 Motion for Reconsideration by Judge Benjamin H Settle.(TG) (Entered: 07/24/2013)
239 STIPULATION AND PROPOSED ORDER Re Voluntary Dismissal Of Single Plaintiffs Claims by parties. (Leatham, Stephen) (Entered: 08/05/2013)
240 STIPULATION AND ORDER by Judge Benjamin H Settle re 239 Stipulation filed by Joyce Marie Adams, et al. Raymond Ernest Morris terminated. (TG) (Entered: 08/12/2013)
241 MOTION for Summary Judgment re Remaining Retaliation Claims by Defendant Ryderwood Improvement and Service Association, Inc.. Noting Date 12/6/2013, (Goldstein, Steven) (Entered: 11/07/2013)
242 DECLARATION of Steve Goldstein in Support of Motion for Summary Judgment re: Remaining Retaliation Claims filed by Defendant Ryderwood Improvement and Service Association, Inc. re 241 MOTION for Summary Judgment re Remaining Retaliation Claims(Goldstein, Steven) (Entered: 11/07/2013)
243 RESPONSE, by Plaintiffs Joyce Marie Adams, Luvern Harland Allen, Darla Jean Baker, James Alvin Baker, Deborah A. Balvage, Raymond T. Balvage, Sharon Marie Banta, Ralph Alvin Barfell, Jr, Janie Kay Bodine, Margaret Louise Braga, Richard Anthony Braga, Jr, Charles Thomas Caldwell, Sandi Kay Caldwell, Karen Campbell, Laren Willbur Coleman, Pamela Denise Coleman, Alvin Dee Colpitts, Corabelle Colpitts, Betty Gene Donoghue,

12/02/2013 12/02/2013

Joyce Elain Fischer, Carol Nadine Huestis, Glenn Richard Huestis, Barbara Jean Joy, Miriam Margaret Kennedy-Allen, Gerald Blair Kolb, Alfred Wesley Leach, Gloria Eileen Leach, Carolyn L Morris, Barbara Louise Pepper, Bob Pistone, Doris Pistone, Sharon Powell, Vern Powell, Charles John Santineau, Diane Smith, Don Smith, Donald Neil Stroud, Sharon Lee Stroud, Charles E. Weaver, Susan M. Weaver, Janet Marie West, Walter Gordon West, Beverly White, to 241 MOTION for Summary Judgment re Remaining Retaliation Claims. (Attachments: # 1 Proposed Order)(Leatham, Stephen) (Entered: 12/02/2013)
244 DECLARATION of Charles Weaver filed by Plaintiffs Joyce Marie Adams, Luvern Harland Allen, Darla Jean Baker, James Alvin Baker, Deborah A. Balvage, Raymond T. Balvage, Sharon Marie Banta, Ralph Alvin Barfell, Jr, Janie Kay Bodine, Margaret Louise Braga, Richard Anthony Braga, Jr, Charles Thomas Caldwell, Sandi Kay Caldwell, Karen Campbell, Laren Willbur Coleman, Pamela Denise Coleman, Alvin Dee Colpitts, Corabelle Colpitts, Betty Gene Donoghue, Joyce Elain Fischer, Carol Nadine Huestis, Glenn Richard Huestis, Barbara Jean Joy, Miriam Margaret Kennedy-Allen, Gerald Blair Kolb, Alfred Wesley Leach, Gloria Eileen Leach, Carolyn L Morris, Barbara Louise Pepper, Bob Pistone, Doris Pistone, Sharon Powell, Vern Powell, Charles John Santineau, Diane Smith, Don Smith, Donald Neil Stroud, Sharon Lee Stroud, Charles E. Weaver, Susan M. Weaver, Janet Marie West, Walter Gordon West, Beverly White re 241 MOTION for Summary Judgment re Remaining Retaliation Claims (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 5)(Leatham, Stephen) (Entered: 12/02/2013)
245 DECLARATION of Stephen G. Leatham filed by Plaintiffs Joyce Marie Adams, Luvern Harland Allen, Darla Jean Baker, James Alvin Baker, Deborah A. Balvage, Raymond T. Balvage, Sharon Marie Banta, Ralph Alvin Barfell, Jr, Janie Kay Bodine, Margaret Louise Braga, Richard Anthony Braga, Jr, Charles Thomas Caldwell, Sandi Kay Caldwell, Karen Campbell, Laren Willbur Coleman, Pamela Denise Coleman, Alvin Dee Colpitts, Corabelle Colpitts, Betty Gene Donoghue, Joyce Elain Fischer, Carol Nadine Huestis, Glenn Richard Huestis, Barbara Jean Joy, Miriam Margaret Kennedy-Allen, Gerald Blair Kolb, Alfred Wesley Leach, Gloria Eileen Leach, Carolyn L Morris, Barbara Louise Pepper, Bob Pistone, Doris Pistone, Sharon Powell, Vern Powell, Diane Smith, Don Smith, Donald Neil Stroud, Sharon Lee Stroud, Charles E. Weaver, Susan M. Weaver, Janet Marie West, Walter Gordon West, Beverly White re 241 MOTION for Summary Judgment re Remaining Retaliation Claims (Attachments:

12/05/2013 12/05/2013 12/05/2013 12/19/2013 12/19/2013
01/02/2014 01/02/2014 01/06/2014

# 1 Exhibit 3, # 2 Exhibit 4)(Leatham, Stephen) (Entered: 12/02/2013)
246 REPLY, filed by Defendant Ryderwood Improvement and Service Association, Inc., TO RESPONSE to 241 MOTION for Summary Judgment re Remaining Retaliation Claims(Goldstein, Steven) (Entered: 12/05/2013)
247 DECLARATION of Denny Knight filed by Defendant Ryderwood Improvement and Service Association, Inc. re 241 MOTION for Summary Judgment re Remaining Retaliation Claims(Goldstein, Steven) (Entered: 12/05/2013)
248 Supplemental DECLARATION of Steven Goldstein filed by Defendant Ryderwood Improvement and Service Association, Inc. re 241 MOTION for Summary Judgment re Remaining Retaliation Claims (Goldstein, Steven) (Entered: 12/05/2013)
249 MOTION for Summary Judgment Dismissing the Punitive Damages Claims by Defendant Ryderwood Improvement and Service Association, Inc.. (Attachments: # 1 Proposed Order) Noting Date 1/10/2014, (Goldstein, Steven) (Entered: 12/19/2013)
250 DECLARATION of Denny Knight in Support of RISA's Motion for Summary Judgment Dismissing Plaintiffs' Punitive Damages Claims filed by Defendant Ryderwood Improvement and Service Association, Inc. re 249 MOTION for Summary Judgment Dismissing the Punitive Damages Claims (Goldstein, Steven) (Entered: 12/19/2013)
251 MOTION for Summary Judgment (Renewed Motion) Regarding Unpaid Dues by Defendant Ryderwood Improvement and Service Association, Inc.. (Attachments: # 1 Proposed Order) Noting Date 1/24/2014, (Goldstein, Steven) (Entered: 01/02/2014)
252 DECLARATION of Dennis Knight filed by Defendant Ryderwood Improvement and Service Association, Inc. re 251 MOTION for Summary Judgment (Renewed Motion) Regarding Unpaid Dues (Goldstein, Steven) (Entered: 01/02/2014)
253 RESPONSE, by Plaintiffs Joyce Marie Adams, Luvern Harland Allen, Darla Jean Baker, James Alvin Baker, Deborah A. Balvage, Raymond T. Balvage, Sharon Marie Banta, Ralph Alvin Barfell, Jr, Janie Kay Bodine, Margaret Louise Braga, Richard Anthony Braga, Jr, Charles Thomas Caldwell, Sandi Kay Caldwell, Karen Campbell, Laren Willbur Coleman, Pamela Denise Coleman, Alvin Dee Colpitts, Corabelle Colpitts, Betty Gene Donoghue,

01/06/2014 01/06/2014

Joyce Elain Fischer, Carol Nadine Huestis, Glenn Richard Huestis, Barbara Jean Joy, Miriam Margaret Kennedy-Allen, Gerald Blair Kolb, Alfred Wesley Leach, Gloria Eileen Leach, Carolyn L Morris, Barbara Louise Pepper, Bob Pistone, Doris Pistone, Sharon Powell, Vern Powell, Charles John Santineau, Diane Smith, Don Smith, Donald Neil Stroud, Sharon Lee Stroud, Charles E. Weaver, Susan M. Weaver, Janet Marie West, Walter Gordon West, Beverly White, to 249 MOTION for Summary Judgment Dismissing the Punitive Damages Claims. (Leatham, Stephen) (Entered: 01/06/2014)
254 DECLARATION of Stephen G. Leatham filed by Plaintiffs Joyce Marie Adams, Luvern Harland Allen, Darla Jean Baker, James Alvin Baker, Deborah A. Balvage, Raymond T. Balvage, Sharon Marie Banta, Ralph Alvin Barfell, Jr, Janie Kay Bodine, Margaret Louise Braga, Richard Anthony Braga, Jr, Charles Thomas Caldwell, Sandi Kay Caldwell, Karen Campbell, Laren Willbur Coleman, Pamela Denise Coleman, Alvin Dee Colpitts, Corabelle Colpitts, Betty Gene Donoghue, Joyce Elain Fischer, Carol Nadine Huestis, Glenn Richard Huestis, Barbara Jean Joy, Miriam Margaret Kennedy-Allen, Gerald Blair Kolb, Alfred Wesley Leach, Gloria Eileen Leach, Carolyn L Morris, Barbara Louise Pepper, Bob Pistone, Doris Pistone, Sharon Powell, Vern Powell, Charles John Santineau, Diane Smith, Don Smith, Donald Neil Stroud, Sharon Lee Stroud, Charles E. Weaver, Susan M. Weaver, Janet Marie West, Walter Gordon West, Beverly White re 249 MOTION for Summary Judgment Dismissing the Punitive Damages Claims (Attachments: # 1 Exhibit 1)(Leatham, Stephen) (Entered: 01/06/2014)
255 DECLARATION of Charles Weaver filed by Plaintiffs Joyce Marie Adams, Luvern Harland Allen, Darla Jean Baker, James Alvin Baker, Deborah A. Balvage, Raymond T. Balvage, Sharon Marie Banta, Ralph Alvin Barfell, Jr, Janie Kay Bodine, Margaret Louise Braga, Richard Anthony Braga, Jr, Charles Thomas Caldwell, Sandi Kay Caldwell, Karen Campbell, Laren Willbur Coleman, Pamela Denise Coleman, Alvin Dee Colpitts, Corabelle Colpitts, Betty Gene Donoghue, Joyce Elain Fischer, Carol Nadine Huestis, Glenn Richard Huestis, Barbara Jean Joy, Miriam Margaret Kennedy-Allen, Gerald Blair Kolb, Alfred Wesley Leach, Gloria Eileen Leach, Carolyn L Morris, Barbara Louise Pepper, Bob Pistone, Doris Pistone, Sharon Powell, Vern Powell, Charles John Santineau, Diane Smith, Don Smith, Donald Neil Stroud, Sharon Lee Stroud, Charles E. Weaver, Susan M. Weaver, Janet Marie West, Walter Gordon West, Beverly White re 249 MOTION for Summary Judgment Dismissing the Punitive

01/10/2014 01/15/2014 01/15/2014 01/15/2014
01/16/2014 01/20/2014

Damages Claims (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Leatham, Stephen) (Entered: 01/06/2014)
256 REPLY, filed by Defendant Ryderwood Improvement and Service Association, Inc., TO RESPONSE to 249 MOTION for Summary Judgment Dismissing the Punitive Damages Claims (Goldstein, Steven) (Entered: 01/10/2014)
257 MOTION for Partial Summary Judgment Regarding 2013 Survey by Defendant Ryderwood Improvement and Service Association, Inc.. Oral Argument Requested. Noting Date 2/7/2014, (Ross, Richard) (Entered: 01/15/2014)
258 DECLARATION of Richard D. Ross filed by Defendant Ryderwood Improvement and Service Association, Inc. re 257 MOTION for Partial Summary Judgment Regarding 2013 Survey (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Ross, Richard) (Entered: 01/15/2014)
259 DECLARATION of Dennis Knight filed by Defendant Ryderwood Improvement and Service Association, Inc. re 257 MOTION for Partial Summary Judgment Regarding 2013 Survey(Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D-1, # 5 Exhibit D-2, # 6 Exhibit D-3, # 7 Exhibit D-4, # 8 Exhibit D-5, # 9 Exhibit E)(Ross, Richard) (Entered: 01/15/2014)
Noting Date Set/Reset re 251 MOTION for Summary Judgment (Renewed Motion) Regarding Unpaid Dues, 249 MOTION for Summary Judgment Dismissing the Punitive Damages Claims: RENOTED to 2/7/2014, to be heard concurrently with Dkt. 257. (TG) (Entered: 01/16/2014)
260 RESPONSE, by Plaintiffs Joyce Marie Adams, Luvern Harland Allen, Darla Jean Baker, James Alvin Baker, Deborah A. Balvage, Raymond T. Balvage, Sharon Marie Banta, Ralph Alvin Barfell, Jr, Janie Kay Bodine, Margaret Louise Braga, Richard Anthony Braga, Jr, Charles Thomas Caldwell, Sandi Kay Caldwell, Karen Campbell, Laren Willbur Coleman, Pamela Denise Coleman, Alvin Dee Colpitts, Corabelle Colpitts, Betty Gene Donoghue, Joyce Elain Fischer, Carol Nadine Huestis, Glenn Richard Huestis, Barbara Jean Joy, Miriam Margaret Kennedy-Allen, Gerald Blair Kolb, Alfred Wesley Leach, Gloria Eileen Leach, Carolyn L Morris, Barbara Louise Pepper, Bob Pistone, Doris Pistone, Sharon Powell, Vern Powell, Charles John Santineau, Diane Smith, Don Smith, Donald Neil Stroud, Sharon Lee Stroud, Charles E. Weaver, Susan M. Weaver, Janet Marie West, Walter

01/20/2014
01/22/2014 01/27/2014 01/27/2014 02/03/2014

Gordon West, Beverly White, to 251 MOTION for Summary Judgment (Renewed Motion) Regarding Unpaid Dues. (Leatham, Stephen) (Entered: 01/20/2014)
261 DECLARATION of Charles Weaver filed by Plaintiffs Joyce Marie Adams, Luvern Harland Allen, Darla Jean Baker, James Alvin Baker, Deborah A. Balvage, Raymond T. Balvage, Sharon Marie Banta, Ralph Alvin Barfell, Jr, Janie Kay Bodine, Margaret Louise Braga, Richard Anthony Braga, Jr, Charles Thomas Caldwell, Sandi Kay Caldwell, Karen Campbell, Laren Willbur Coleman, Pamela Denise Coleman, Alvin Dee Colpitts, Corabelle Colpitts, Betty Gene Donoghue, Joyce Elain Fischer, Carol Nadine Huestis, Glenn Richard Huestis, Barbara Jean Joy, Miriam Margaret Kennedy-Allen, Gerald Blair Kolb, Alfred Wesley Leach, Gloria Eileen Leach, Carolyn L Morris, Barbara Louise Pepper, Bob Pistone, Doris Pistone, Sharon Powell, Vern Powell, Charles John Santineau, Diane Smith, Don Smith, Donald Neil Stroud, Sharon Lee Stroud, Charles E. Weaver, Susan M. Weaver, Janet Marie West, Walter Gordon West, Beverly White re 251 MOTION for Summary Judgment (Renewed Motion) Regarding Unpaid Dues (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Leatham, Stephen) (Entered: 01/20/2014)
Noting Date Set/Reset re 241 MOTION for Summary Judgment re Remaining Retaliation Claims: RENOTED to 2/7/2014, to be heard concurrently with Dkt. 257. (TG) (Entered: 01/22/2014)
262 REPLY, filed by Defendant Ryderwood Improvement and Service Association, Inc., TO RESPONSE to 251 MOTION for Summary Judgment (Renewed Motion) Regarding Unpaid Dues (Ross, Richard) (Entered: 01/27/2014)
263 DECLARATION of Dennis Knight filed by Defendant Ryderwood Improvement and Service Association, Inc. re 251 MOTION for Summary Judgment (Renewed Motion) Regarding Unpaid Dues (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Ross, Richard) (Entered: 01/27/2014)
264 RESPONSE, by Plaintiffs Joyce Marie Adams, Luvern Harland Allen, Darla Jean Baker, James Alvin Baker, Deborah A. Balvage, Raymond T. Balvage, Sharon Marie Banta, Ralph Alvin Barfell, Jr, Janie Kay Bodine, Margaret Louise Braga, Richard Anthony Braga, Jr, Charles Thomas Caldwell, Sandi Kay Caldwell, Karen Campbell, Laren Willbur Coleman, Pamela Denise Coleman, Alvin Dee Colpitts, Corabelle Colpitts, Betty Gene Donoghue, Joyce Elain Fischer, Carol Nadine Huestis, Glenn Richard Huestis,

02/03/2014
02/07/2014 02/07/2014 02/07/2014 02/07/2014

Barbara Jean Joy, Miriam Margaret Kennedy-Allen, Gerald Blair Kolb, Alfred Wesley Leach, Gloria Eileen Leach, Carolyn L Morris, Barbara Louise Pepper, Bob Pistone, Doris Pistone, Sharon Powell, Vern Powell, Charles John Santineau, Diane Smith, Don Smith, Donald Neil Stroud, Sharon Lee Stroud, Charles E. Weaver, Susan M. Weaver, Janet Marie West, Walter Gordon West, Beverly White, to 257 MOTION for Partial Summary Judgment Regarding 2013 Survey. (Leatham, Stephen) (Entered: 02/03/2014)
265 DECLARATION of Charles Weaver filed by Plaintiffs Joyce Marie Adams, Luvern Harland Allen, Darla Jean Baker, James Alvin Baker, Deborah A. Balvage, Raymond T. Balvage, Sharon Marie Banta, Ralph Alvin Barfell, Jr, Janie Kay Bodine, Margaret Louise Braga, Richard Anthony Braga, Jr, Charles Thomas Caldwell, Sandi Kay Caldwell, Karen Campbell, Laren Willbur Coleman, Pamela Denise Coleman, Alvin Dee Colpitts, Corabelle Colpitts, Betty Gene Donoghue, Joyce Elain Fischer, Carol Nadine Huestis, Glenn Richard Huestis, Barbara Jean Joy, Miriam Margaret Kennedy-Allen, Gerald Blair Kolb, Alfred Wesley Leach, Gloria Eileen Leach, Carolyn L Morris, Barbara Louise Pepper, Bob Pistone, Doris Pistone, Sharon Powell, Vern Powell, Charles John Santineau, Diane Smith, Don Smith, Donald Neil Stroud, Sharon Lee Stroud, Charles E. Weaver, Susan M. Weaver, Janet Marie West, Walter Gordon West, Beverly White re 257 MOTION for Partial Summary Judgment Regarding 2013 Survey (Leatham, Stephen) (Entered: 02/03/2014)
266 NOTICE of Filing Exhibit G to Ross Decl (Color-Coded Plat Map) in Paper or Physical Form with the Clerk's Office by Defendant Ryderwood Improvement and Service Association, Inc.. (Ross, Richard) (Entered: 02/07/2014)
267 REPLY, filed by Defendant Ryderwood Improvement and Service Association, Inc., TO RESPONSE to 257 MOTION for Partial Summary Judgment Regarding 2013 Survey (Ross, Richard) (Entered: 02/07/2014)
268 Second DECLARATION of Richard D. Ross filed by Defendant Ryderwood Improvement and Service Association, Inc. re 257 MOTION for Partial Summary Judgment Regarding 2013 Survey (Ross, Richard) (Entered: 02/07/2014)
269 Second DECLARATION of Dennis Knight filed by Defendant Ryderwood Improvement and Service Association, Inc.

03/04/2014
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re 257 MOTION for Partial Summary Judgment Regarding 2013 Survey (Ross, Richard) (Entered: 02/07/2014)
270 REPLY by Plaintiffs Joyce Marie Adams, Luvern Harland Allen, Darla Jean Baker, James Alvin Baker, Deborah A. Balvage, Raymond T. Balvage, Sharon Marie Banta, Ralph Alvin Barfell, Jr, Janie Kay Bodine, Margaret Louise Braga, Richard Anthony Braga, Jr, Charles Thomas Caldwell, Sandi Kay Caldwell, Karen Campbell, Laren Willbur Coleman, Pamela Denise Coleman, Alvin Dee Colpitts, Corabelle Colpitts, Betty Gene Donoghue, Joyce Elain Fischer, Carol Nadine Huestis, Glenn Richard Huestis, Barbara Jean Joy, Miriam Margaret Kennedy-Allen, Gerald Blair Kolb, Alfred Wesley Leach, Gloria Eileen Leach, Carolyn L Morris, Barbara Louise Pepper, Bob Pistone, Doris Pistone, Sharon Powell, Vern Powell, Charles John Santineau, Diane Smith, Don Smith, Donald Neil Stroud, Sharon Lee Stroud, Charles E. Weaver, Susan M. Weaver, Janet Marie West, Walter Gordon West, Beverly White to 195 Answer to Amended Complaint, Counterclaim,, Plaintiffs' Reply to Defendant's Counterclaims. (Leatham, Stephen) (Entered: 03/04/2014)
271 ORDER by Judge Benjamin H Settle granting 241 Motion for Summary Judgment; denying 249 Motion for Summary Judgment; denying 251 Motion for Summary Judgment; granting 257 Motion for Partial Summary Judgment.(TG; cc mailed to Diane White) (Entered: 03/04/2014)
272 NOTICE of Rescheduled Hearing: To accommodate the Court's calendar, the Pretrial Conference is reset for 4/8/2014 at 1:30 PM in Courtroom E before Judge Benjamin H. Settle.(MGC) (Entered: 03/07/2014)
273 MOTIONS IN LIMINE by Defendant Ryderwood Improvement and Service Association, Inc.. Oral Argument Requested. (Attachments: # 1 Proposed Order) Noting Date 3/28/2014, (Ross, Richard) (Entered: 03/10/2014)
274 DECLARATION of Richard D. Ross filed by Defendant Ryderwood Improvement and Service Association, Inc. re 273 MOTIONS IN LIMINE (Attachments: # 1 Exhibit A M)(Ross, Richard) (Entered: 03/10/2014)
275 RESPONSE, by Plaintiffs Joyce Marie Adams, Luvern Harland Allen, Darla Jean Baker, James Alvin Baker, Deborah A. Balvage, Raymond T. Balvage, Sharon Marie Banta, Ralph Alvin Barfell, Jr, Janie Kay Bodine, Margaret Louise Braga, Richard Anthony Braga, Jr, Charles Thomas Caldwell, Sandi Kay Caldwell, Karen

03/24/2014 03/25/2014 03/25/2014
03/25/2014

Campbell, Laren Willbur Coleman, Pamela Denise Coleman, Alvin Dee Colpitts, Corabelle Colpitts, Betty Gene Donoghue, Joyce Elain Fischer, Carol Nadine Huestis, Glenn Richard Huestis, Barbara Jean Joy, Miriam Margaret Kennedy-Allen, Gerald Blair Kolb, Alfred Wesley Leach, Gloria Eileen Leach, Carolyn L Morris, Barbara Louise Pepper, Bob Pistone, Doris Pistone, Sharon Powell, Vern Powell, Charles John Santineau, Diane Smith, Don Smith, Donald Neil Stroud, Sharon Lee Stroud, Charles E. Weaver, Susan M. Weaver, Janet Marie West, Walter Gordon West, Beverly White, to 273 MOTIONS IN LIMINE . (Leatham, Stephen) (Entered: 03/24/2014)
276 Proposed Pretrial Order by Defendant Ryderwood Improvement and Service Association, Inc.. (Ross, Richard) (Entered: 03/24/2014)
277 Proposed Voir Dire by Defendant Ryderwood Improvement and Service Association, Inc.. (Goldstein, Steven) (Entered: 03/25/2014)
278 Proposed Voir Dire by Plaintiffs Joyce Marie Adams, Luvern Harland Allen, Darla Jean Baker, James Alvin Baker, Deborah A. Balvage, Raymond T. Balvage, Sharon Marie Banta, Ralph Alvin Barfell, Jr, Janie Kay Bodine, Margaret Louise Braga, Richard Anthony Braga, Jr, Charles Thomas Caldwell, Sandi Kay Caldwell, Karen Campbell, Laren Willbur Coleman, Pamela Denise Coleman, Alvin Dee Colpitts, Corabelle Colpitts, Betty Gene Donoghue, Joyce Elain Fischer, Carol Nadine Huestis, Glenn Richard Huestis, Barbara Jean Joy, Miriam Margaret KennedyAllen, Gerald Blair Kolb, Alfred Wesley Leach, Gloria Eileen Leach, Carolyn L Morris, Barbara Louise Pepper, Bob Pistone, Doris Pistone, Sharon Powell, Vern Powell, Charles John Santineau, Diane Smith, Don Smith, Donald Neil Stroud, Sharon Lee Stroud, Charles E. Weaver, Susan M. Weaver, Janet Marie West, Walter Gordon West, Beverly White. (Leatham, Stephen) (Entered: 03/25/2014)
279 TRIAL BRIEF by Plaintiffs Joyce Marie Adams, Luvern Harland Allen, Darla Jean Baker, James Alvin Baker, Deborah A. Balvage, Raymond T. Balvage, Sharon Marie Banta, Ralph Alvin Barfell, Jr, Janie Kay Bodine, Margaret Louise Braga, Richard Anthony Braga, Jr, Charles Thomas Caldwell, Sandi Kay Caldwell, Karen Campbell, Laren Willbur Coleman, Pamela Denise Coleman, Alvin Dee Colpitts, Corabelle Colpitts, Betty Gene Donoghue, Joyce Elain Fischer, Carol Nadine Huestis, Glenn Richard Huestis, Barbara Jean Joy, Miriam Margaret Kennedy-Allen, Gerald Blair

03/25/2014 03/25/2014 03/25/2014 03/25/2014 03/26/2014
04/08/2014

Kolb, Alfred Wesley Leach, Gloria Eileen Leach, Carolyn L Morris, Barbara Louise Pepper, Bob Pistone, Doris Pistone, Sharon Powell, Vern Powell, Charles John Santineau, Diane Smith, Don Smith, Donald Neil Stroud, Sharon Lee Stroud, Charles E. Weaver, Susan M. Weaver, Janet Marie West, Walter Gordon West, Beverly White. (Leatham, Stephen) (Entered: 03/25/2014)
280 TRIAL BRIEF by Defendant Ryderwood Improvement and Service Association, Inc.. (Ross, Richard) (Entered: 03/25/2014)
281 Proposed Jury Instructions by Defendant Ryderwood Improvement and Service Association, Inc. JOINT INSTRUCTIONS (Ross, Richard) (Entered: 03/25/2014)
282 Proposed Jury Instructions by Defendant Ryderwood Improvement and Service Association, Inc. JOINT DISPUTED INSTRUCTIONS (Ross, Richard) (Entered: 03/25/2014)
283 Proposed Special Jury Verdict Form by Defendant Ryderwood Improvement and Service Association, Inc.. (Ross, Richard) (Entered: 03/25/2014)
284 Proposed Special Jury Verdict Form by Plaintiffs Joyce Marie Adams, Luvern Harland Allen, Darla Jean Baker, James Alvin Baker, Deborah A. Balvage, Raymond T. Balvage, Sharon Marie Banta, Ralph Alvin Barfell, Jr, Janie Kay Bodine, Margaret Louise Braga, Richard Anthony Braga, Jr, Charles Thomas Caldwell, Sandi Kay Caldwell, Karen Campbell, Laren Willbur Coleman, Pamela Denise Coleman, Alvin Dee Colpitts, Corabelle Colpitts, Betty Gene Donoghue, Joyce Elain Fischer, Carol Nadine Huestis, Glenn Richard Huestis, Barbara Jean Joy, Miriam Margaret Kennedy-Allen, Gerald Blair Kolb, Alfred Wesley Leach, Gloria Eileen Leach, Carolyn L Morris, Barbara Louise Pepper, Bob Pistone, Doris Pistone, Sharon Powell, Vern Powell, Charles John Santineau, Diane Smith, Don Smith, Donald Neil Stroud, Sharon Lee Stroud, Charles E. Weaver, Susan M. Weaver, Janet Marie West, Walter Gordon West, Beverly White. (Leatham, Stephen) (Entered: 03/26/2014)
285 MINUTE ENTRY for Pretrial Conference held on 4/8/2014 before Judge Benjamin H. Settle - Dep Clerk: Gretchen Craft; Pla Counsel: Steven Goldstein, Richard Ross; Def Counsel: Stephen Leatham; CR: Teri Hendrix; Time of Hearing: 1:30; Courtroom: E; Court advises counsel this case will follow a jury trial in case C04-5539BHS, with a possible start date of 4/29/2014. Each side will have 15 minutes for voir dire and each Plaintiff will

04/21/2014 04/22/2014 05/28/2014 07/07/2014
07/28/2014 07/31/2014 08/08/2014 08/08/2014 08/12/2014
08/12/2014

have 20 minutes to testify, unless the Court is convinced additional time is necessary. The parties advise the Court that settlement negotiations are ongoing and therefore the Court reserves rulings on the Motions in Limine, as requested by counsel, and sets an additional Pretrial Conference for 4/21/2014 at 9:00 AM in Courtroom E before Judge Benjamin H. Settle. (MGC) (Entered: 04/09/2014)
***Motion terminated due to settlement of case: 273 MOTIONS IN LIMINE filed by Ryderwood Improvement and Service Association, Inc. (TG) (Entered: 04/21/2014)
286 STIPULATION AND PROPOSED ORDER of Dismissal by parties. (Goldstein, Steven) (Entered: 04/22/2014)
287 NOTICE OF SATISFACTION AND RELEASE OF ATTORNEY'S LIEN ; filed by Interested Party Joseph E. Lynam. (Lynam, Joseph) (Entered: 05/28/2014)
288 ORDER by Judge Benjamin H. Settle granting 286 Stipulated motion to dismiss filed by Ryderwood Improvement and Service Association, Inc. Parties to show cause by 7/25/2014 why the Court should not dismiss claims of Bob and Diana White. (TG) (Entered: 07/07/2014)
289 RESPONSE by Plaintiff Bob White re 288 Order . (Attachments: # 1 Supplement)(White, Bob) (Entered: 07/28/2014)
MINUTE ENTRY: Defendant is requested to file a response to Dkt. 289. (TG) (Entered: 07/31/2014)
290 RESPONSE TO ORDER TO SHOW CAUSE by Counter Claimant Ryderwood Improvement and Service Association, Inc. (Ross, Richard) (Entered: 08/08/2014)
291 DECLARATION of Richard D. Ross re 290 Response to Order to Show Cause by Defendant Ryderwood Improvement and Service Association, Inc. (Ross, Richard) (Entered: 08/08/2014)
292 ORDER by Judge Benjamin H. Settle Requesting Joint Status Report. Joint Status Report due by 8/22/2014, (TG) (Main Document 292 replaced on 8/12/2014) (TG). (Entered: 08/12/2014)
293 NOTICE of Corrected Image/Document re 292 Order setting JSR deadline (Service of corrected image is attached). (TG) (Entered: 08/12/2014)

08/18/2014
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294 MOTION to Appoint Counsel APPLICATION Also for Diane White (pla) by Plaintiff Bob White (Attachments: # 1 Supplement)(White, Bob) Modified on 8/19/2014: corrected "event type" to put document on court's motion calendar and added Plaintiff Diane White as a filer. (CMG). (Entered: 08/18/2014)
SETTING the NOTING DATE for the 294 MOTION to Appoint Counsel to: 9/5/2014. (CMG) (Entered: 08/19/2014)
NOTICE of Docket Text Modification re 294 MOTION to Appoint Counsel : corrected the event type to put on the court's motion docket, and added filer. (CMG) (Entered: 08/19/2014)
295 JOINT STATUS REPORT signed by all parties (Goldstein, Steven) (Entered: 08/21/2014)
***Civil Case Terminated. ***Motion terminated as moot: 294 MOTION to Appoint Counsel filed by Diane White, Bob White. (TG) (Entered: 08/25/2014)
296 STIPULATION AND ORDER OF DISMISSAL by parties (Goldstein, Steven) (Entered: 08/27/2014)
297 STIPULATION AND ORDER by Judge Benjamin H. Settle re 296 Stipulation filed by Ryderwood Improvement and Service Association, Inc. (TG) (Entered: 08/28/2014)