Case 3:09-cv-00412-B Document 1 Filed 03/04/09 Page 1 of 13 PageID 1

UNITED STATES DISTRICT CO NORTHERN DISTRICT OF TE
DALLAS DIVISION

T

U.S. DISTRICT COURT

NORTHERN DISTRICT OF nXAS

r--F-IL-F-O-·l

)

1~1At{ - 4 2009 ;

UNITED STATES OF AMERICA,

)

)

Plaintiff,

)

)

v.

)

)

JPI CONSTRUCTION, L.P.; MULTIFAMILY

)

CONSTRUCTION, L.L.C.; JPIAPARTMENT DEVELOPMENT, L.P. D/B/A JPI CAMPUS

8i09CV04

QUARTERS; LIFESTYLE APARTMENT

)

DEVELOPMENT SERVICE, L.L.C.; JEFFERSON

)

BEND, L.P. D/B/A JEFFERSON AT MISSION GATE ) Civil Action No.

APARTMENTS; JEFFERSON LAKE CREEK, L.P.

)

D/B/A JEFFERSON CENTER APARTMENTS; and

)

APARTMENT COMMUNITY REALTY, L.L.C.

)

)

Defendants.

)

-----------------------------------)

COMPLAINT

The United States of America alleges:

1. This action is brought by the United States to enforce the Fair Housing Act, Title VIII

of the Civil Rights Act of 1968, as amended by the Fair Housing Amendments Act of 1988

("Fair Housing Act"), 42 U.S.C. §§ 3601-3619, and Title III of the Americans with Disabilities

Act of 1990 ("ADA"), 42 U.S.C. §§ 12181-12189.

Jurisdiction and Venue

2. The Court has jurisdiction over this action under 28 U.S.C. §§ 1331 and 1345, and 42

U.S.C. §§ 3614(a) and 12188(b)(1)(B). The Court may grant declaratory and other relief

pursuant to 28 U.S.C. §§ 2201 and 2202.

Case 3:09-cv-00412-B Document 1 Filed 03/04/09 Page 2 of 13 PageID 2
3. Venue is proper pursuant to 28 U.S.C. §§ 1391 and 1392 because a substantial part of the events or omissions giving rise to the claims alleged in this action arose in the Northern District of Texas.
Properties 4. Jefferson at Mission Gate ("Mission Gate") is an apartment property located at 8025 Ohio Drive, Plano, Texas 75024-2316. Mission Gate has a rental office. 5. Jefferson Center Apartments ("Jefferson Center") is an apartment property located at 8701 West Palmer Lane, Austin, Texas 78729-4941. Jefferson Center has a rental office.
The Defendants 6. Defendant JPI Construction, L.P. is a limited partnership organized under the laws of Delaware and registered to do business in Texas and other states, with its principal place of business at 600 E. Las Colinas Boulevard, Suite 1800, Irving, Texas 75039-5625. Defendant JPI Construction, L.P. is a general contractor for multi-family housing, including housing that was built for first occupancy after March 13, 1991. It works with other JPI-related companies engaged in the development of multi-family housing. It was the general contractor for Mission Gate and Jefferson Center, and, in those capacities, was involved in the design and construction of Mission Gate, Jefferson Center, and other covered multi-family dwellings. 7. Defendant Multifamily Construction, L.L.C. is a limited liability company organized under the laws of Delaware and registered to do business in Texas and other states, with its principal place of business at 600 E. Las Colinas Boulevard, Suite 1800, Irving, Texas 750395625. Defendant Multifamily Construction, L.L.c. is a general partner of Defendant JPI Construction, L.P. and engages in the business of constructing multi-family housing properties.
2

Case 3:09-cv-00412-B Document 1 Filed 03/04/09 Page 3 of 13 PageID 3
In that capacity, Defendant Multifamily Construction, L.L.C. was involved in the design and construction of Mission Gate, Jefferson Center, and other covered multi-family dwellings.
8. Defendant JPI Apartment Development, L.P., also doing business as JPI Campus Quarters, is a limited partnership under the laws of Delaware and registered to do business in Texas and other states, with its principal place of business at 600 E. Las Colinas Boulevard, Suite 1800, Irving, Texas 75039-5625. Defendant JPI Apartment Development, L.P. was an owner and developer of Mission Gate and Jefferson Center during the design and construction of Mission Gate and Jefferson Center, and, in those capacities, was involved in the design and construction of Mission Gate, Jefferson Center, and other covered multi-family dwellings.
9. Defendant Lifestyle Apartment Development Service, L.L.C. is a limited liability company under the laws of Delaware and registered to do business in Texas and other states, with its principal place of business at 600 E. Las Colinas Boulevard, Suite 1800, Irving, Texas 75039-5625. Defendant Lifestyle Apartment Development Service, L.L.C. engages in the business of residential real estate ownership and development. Defendant Lifestyle Apartment Development Service, L.L.c. was a general partner in Defendant JPI Apartment Development, L.P. and was involved in the design and construction of Mission Gate, Jefferson Center, and other covered multi-family dwellings.
10. Defendant Jefferson Bend, L.P., also doing business as Jefferson at Mission Gate, is a limited partnership organized under the laws of Delaware and registered to do business in Texas, with its principal place of business at 600 E. Las Colinas Boulevard, Suite 1800, Irving, Texas 75039-5625. Defendant Jefferson Bend, L.P. was an owner and a developer of Mission
3

Case 3:09-cv-00412-B Document 1 Filed 03/04/09 Page 4 of 13 PageID 4
Gate during the time of its design and construction. In that capacity, Defendant Jefferson Bend, L.P. was involved in the design and construction of Mission Gate.
11. Defendant Jefferson Lake Creek, L.P., also doing business as Jefferson Center Apartments, is a limited partnership organized under the laws of Delaware and registered to do business in Texas, with its principal place of business at 600 Las Colinas Blvd. East, Suite 1800, Irving, Texas 75039-5625. Defendant Jefferson Lake Creek, L.P. was an owner and a developer of Jefferson Center during the time of its design and construction. In that capacity, Defendant Jefferson Lake Creek, L.P. was involved in the design and construction of Jefferson Center.
12. Defendant Apartment Community Realty, L.L.c. is a limited liability company organized under the laws of Delaware and registered to do business in Texas and other states, with its principal place of business at 600 E. Las Colinas Boulevard, Suite 1800, Irving, Texas 75039-5625. Defendant Apartment Community Realty, L.L.C. engages in the business of residential real estate ownership and development. Defendant Apartment Community Realty, L.L.C. was a general partner in Defendant Jefferson Bend, L.P. and Defendant Jefferson Lake Creek, L.P. and was involved in the design and construction of Mission Gate and Jefferson Center.
Other Properties 13. The Defendants have designed and constructed 205 or more other multi-family housing properties in 26 states and the District of Columbia. These other multi-family housing properties typically have rental or sales offices.
4

Case 3:09-cv-00412-B Document 1 Filed 03/04/09 Page 5 of 13 PageID 5
Factual Alleeations 14. The properties described in paragraphs 4, 5 and 13 were designed and constructed for first occupancy after March 13, 1991. 15. The properties described in paragraphs 4,5 and 13 contain "dwellings" as defined by 42 U.S.C. § 3602(b). 16. The properties described in paragraphs 4, 5 and 13 contain "covered multi-family dwellings" within the meaning of 42 U.S.C. § 3604(f). 17. The covered multi-family dwellings at the properties described in paragraphs 4,5 and 13 are subject to the accessibility requirements of 42 U.S.C. § 3604(f). 18. The covered multi-family dwellings at the properties described in paragraphs 4 and 5 are not designed and constructed in a manner so that:
a. the public use and common use portions of the dwellings therein are readily accessible to and usable by handicapped persons;
b. all doors designed to allow passage into and within all premises within such dwellings are sufficiently wide to allow passage by handicapped persons in wheelchairs;
c. all premises within such dwellings contain the following features of adaptive design:
i. accessible routes into and through the dwellings; ii. light switches, electrical outlets, thermostats, and other environmental controls in accessible locations; and iii. usable kitchens and bathrooms such that an individual in a wheelchair can maneuver about the space.
5

Case 3:09-cv-00412-B Document 1 Filed 03/04/09 Page 6 of 13 PageID 6
19. Some of the covered multi-family dwellings at the properties described in paragraph 13 are not designed and constructed in a manner so that:
a. the public use and common use portions of the dwellings therein are readily accessible to and usable by handicapped persons;
b. all doors designed to allow passage into and within all premises within such dwellings are sufficiently wide to allow passage by handicapped persons in wheelchairs;
c. all premises within such dwellings contain the following features of adaptive design:
i. accessible routes into and through the dwellings; ii. light switches, electrical outlets, thermostats, and other environmental controls in accessible locations; and iii. usable kitchens and bathrooms such that an individual in a wheelchair can maneuver about the space. 20. The rental or sales offices at the properties described in paragraphs 4, 5 and 13 are public accommodations within the meaning of Section 301(7)(E) of the Americans with Disabilities Act, 42 U.S.C. § 12181(7)(E). 21. The rental or sales offices of the properties described in paragraphs 4, 5 and 13 were designed and constructed for first occupancy after January 26, 1993. 22. The rental or sales offices ofthe properties described in paragraphs 4, 5 and 13 are subject to the requirements of 42 U.S.C. §§ 12181-12183. 23. The rental or sales offices of the properties described in paragraphs 4 and 5 are not designed and constructed so that they are readily accessible to and usable by individuals with
6

Case 3:09-cv-00412-B Document 1 Filed 03/04/09 Page 7 of 13 PageID 7
disabilities, as required by Section 303(a)(1) of the ADA, 42 U.S.C. §12183(a)(1). These rental or sales offices fail to comply with the Department of Justice's regulation implementing Title III of the ADA, 28 C.F.R. Part 36, including the Standards for Accessible Design, 28 C.F.R. Part 36, Appendix A ("the ADA Standards").
24. The rental or sales offices of some of the properties described in paragraph 13 are not designed and constructed so that they are readily accessible to and usable by individuals with disabilities, as required by Section 303(a)(1) of the ADA, 42 U.S.c. §12183(a)(1). These rental offices fail to comply with the Department of Justice's regulation implementing Title III of the ADA, 28 C.F.R. Part 36, including the ADA Standards.
Fair Housin~ Act Claims 25. The allegations of paragraphs 1 through 24 are hereby incorporated by reference. 26. The Defendants have failed to design and construct covered multi-family dwellings in the manner set forth in 42 U.S.C. §§ 3604(f)(3)(C). 27. The Defendants' conduct described above violates 42 U.S.c. §§ 3604(f)(1), (f)(2), and (f)(3)(C). 28. The Defendants' conduct constitutes:
a. a pattern or practice of resistence to the full enjoyment of rights granted by the Fair Housing Act, 42 U.S.C. §§ 3601 - 3619; or
b. a denial to a group of persons of rights granted by the Fair Housing Act, 42 U.S.C. §§ 3601 - 3619, which raises an issue of general public importance.
7

Case 3:09-cv-00412-B Document 1 Filed 03/04/09 Page 8 of 13 PageID 8
29. Persons who may have been the victims of the Defendants' discriminatory housing practices are aggrieved persons as defined in 42 U.S.c. § 3602(i), and may have suffered injuries as a result of the conduct described above.
30. The Defendants' conduct described above was intentional, willful, and taken in disregard for the rights of others.
Americans with Disabilities Act Claims 31. The allegations of paragraphs 1 through 24 are hereby incorporated by reference. 32. The Defendants have failed to design and construct the rental or sales offices and other public use areas at the properties described in paragraphs 4 and 5 in a manner required by 42 U.S.c. § 12183(a)(1) and the ADA Standards. 33. The Defendants have failed to design and construct the rental or sales offices and other public use areas at some of the properties described in paragraph 13 in a manner required by 42 U.S.C. § 12183(a)(1) and the ADA Standards. 34. The Defendants' conduct constitutes:
a. a pattern or practice of discrimination within the meaning of 42 U.S.C. § 12188(b)(1)(B)(i) and 28 C.F.R. § 36.503(a); or
b. unlawful discrimination that raises an issue of general public importance within the meaning of 42 U.S.C. § 12188(b)(1)(B)(ii) and 28 C.F.R. § 36.503(b). 35. Persons who may have been the victims of the Defendants' discriminatory conduct are aggrieved persons as defined in 42 U.S.C. § 12188(b)(2)(B), and may have suffered injuries as a result of the conduct described above.
8

Case 3:09-cv-00412-B Document 1 Filed 03/04/09 Page 9 of 13 PageID 9
36. The Defendants' conduct described above was intentional, willful, and taken in disregard for the rights of others.
Prayer for Relief WHEREFORE, the United States prays that the Court enter an order that: 1. Declares that the Defendants' conduct as alleged herein violates the Fair Housing Act and the Americans with Disabilities Act; 2. Enjoins the Defendants, their officers, employees, agents, successors, and all other persons in active concert or participation with any of them, from:
a. at the properties identified in paragraphs 4 and 5, failing or refusing to bring the covered multi-family dwelling units and public use and common use areas into full compliance with 42 U.S.C. § 3604(f);
b. at the properties identified in paragraphs 4 and 5, failing or refusing to conduct a compliance survey to determine whether the retrofits ordered in paragraph (a), above, were made properly;
c. at the properties identified in paragraphs 13 and all other covered multi-family dwellings built for first occupancy after March 13, 1991, in which any Defendant was involved in the design and construction, failing or refusing to: (i) if not already done, conduct a compliance survey to identify violations of 42 U.S.C. § 3604(f), and (ii) with respect to any violations found, failing to retrofit the covered multi-family dwelling units and public and common use areas to bring them into compliance with the requirements of 42 U.S.c. § 3604(f);
9

Case 3:09-cv-00412-B Document 1 Filed 03/04/09 Page 10 of 13 PageID 10
d. designing or constructing any covered multi-family dwellings in the future that do not comply with 42 US.c. § 3604(f); and
e. failing or refusing to take such affirmative steps as may be necessary to restore, as nearly as practicable, the victims of the Defendants' unlawful practices to the position they would have been in but for the discriminatory conduct. 3. Enjoins the Defendants, their officers, employees, agents, successors and all other persons in active concert or participation with any of them from:
a. at the properties identified in paragraphs 4 and 5, failing or refusing to bring the public accommodations, including the rental offices, into full compliance with 42 uS.C. § 12183(a)(1), 28 C.F.R. §§36.401 and 36.406, and 28 C.F.R. Part 36, Appendix A-,
b. at the properties identified in paragraphs 4 and 5, failing or refusing to conduct a compliance survey to determine whether the retrofits ordered in paragraph (a), above, were made properly;
c. at the properties identified in paragraph 13 and at all other covered multifamily dwellings, with respect to the areas that are public accommodations, including rental or sales offices, designed and constructed by any of the Defendants for first occupancy after January 26, 1993, failing or refusing to: (i) ifnot already done, conduct a compliance survey of these public accommodations to identify violations of 42 US.c. § 12183(a)(1), 28 C.F.R. §§36.401 and 36.406, and 28 C.F.R. Part 36, Appendix A, and (ii) with respect to any violations found, retrofit the public accommodations areas to bring
10

Case 3:09-cv-00412-B Document 1 Filed 03/04/09 Page 11 of 13 PageID 11
them into compliance with the requirements of the Americans with Disabilities Act and the ADA Standards;
d. designing or constructing any public accommodations at any covered multifamily dwellings in the future that do not comply with 42 U.S.C. §12183(a)(1), 28 C.F.R. §§36.401 and 36.406, and 28 C.F.R. Part 36, Appendix A; and
e. failing or refusing to take such affirmative steps as may be necessary to restore, as nearly as practicable, the victims of the Defendants' unlawful practices to the position they would have been in but for the discriminatory conduct. 4. Awards such monetary damages as would fully compensate each person for injuries resulting from the above described discriminatory conduct against the Defendants pursuant to 42 U.S.C. §3614(d)(1)(B) and 42 U.S.c. § 12188(b)(2)(B); 5. Assesses a civil penalty against each ofthe Defendants in the maximum amount authorized by 42 U.S.C. §3614(d)(1)(C) and 42 U.S.C. §12188(b)(2)(C), to vindicate the public interest. II II II II II II II II
11

Case 3:09-cv-00412-B Document 1 Filed 03/04/09 Page 12 of 13 PageID 12

The United States further prays for such additional relief as the interests ofjustice may reqUIre.

~~~ AME T.JACKS mg Umted States Attorney Northern District of Texas 1100 Commerce Street, Suite 300 Dallas, Texas 75242-1699

ERIC H. HOLDER, JR. Attorney General
LORETTA KING Acting Assistant Attorney General Civil Rights Division

JOHN R. PARKER Chief, Civil Division United States Attorney's Office Northern District of Texas 1100 Commerce Street, Suite 300 Dallas, Texas 75242-1699

Acting Chief, Housing and Civil Enforcement Section

Deputy Chief, Housing and Civil Enforcement Section
KEVIN J. KIJEWSKI, KY Bar # 86448 JENNIFER E. MCALLISTER, VA Bar # 71180 Trial Attorneys United States Department of Justice Civil Rights Division Housing and Civil Enforcement Section 950 Pennsylvania Avenue, N.W. Washington, D.C. 20530 202-305-2913 202-514-1116 (fax)
12

Case 3:09-cv-00412-B Document 1 Filed 03/04/09 Page 13 of 13 PageID 13

8--09 12 - u OI.\ .rc . . C V 0 4 I' \' <!!.JS44 (Rev.I 2/07)

. . . . CIVlt'COVER SHEET

III

The JS 44 cIvil cover sheetand the mformatlOn contamed herem neither replace nor supplement the filing and service ofpleadings or other papers as required 6y'aw, lexce~ provided by local rules of court. ThiS form, approved by the Judicial Conference ofthe Umted States m September 1974, IS reqUired for the use ofthe Clerk ofCourt for the purpose ofmitiating
the cIvil docket sheet. (SEE INSTRUCTIONS ON THE REVERSE OF THE FORM.)

I. (a) PLAINTIFFS United States of America
(b) County of Residence of First Listed Plaintiff .:.n~/.:::a:-_ _ _ _ _ _~....
(EXCEPT IN U.S. PLAINTIFF CASES)

DEFENDANTS

JPI Construction, LP, Multifamily Constr, LLC, JPI Apt

evelop, LP, Lifestyle Apt Develop Svc, LLC, et al.

II

Cou ty of Residence of First Listed Defendant .:D:,;a::,I;,:;la::,s::..._ _ _ _ _ _ __

(IN U.S. PLAINTIFF CASES ONLY)

IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE LAND INVOLVED.

~( W1ff~~~~ Hanback, Holland & Knight, 2099 Penn Ave, NW,
Gi. ash, DC 20006 202-955-3000

rK I u.s. Government
Plaintiff

o 3 Federal Question
(U.S. Government Not a P

ENSHIP OF PRINCIPAL P ARTIES(Place an "X" in One Box for Plaintiff

(For Diversity Cases Only)

and One Box for Defendant)

Citizen of This State

PTF DEF 0 I 0 I Incorporated or Principal Place

PTF DEF
0 4 I:!I 4

of Business In This State

o 2 U.S. Government
Defendant

o 4 Diversity
(Indicate Citizenship of Parties in Item Ill)

Citizen of Another State

o 2 0 2 Incorporated and Principal Place
of Business In Another State

o 5

IV NATURE 0 FSVIT (Place an "X" in One Box Onlv)

CONTRA '71'

TORTS

o 11 0 Insurance o 120 Marine o 130 Miller Act o 140 Negotiable Instrument

PERSONAL INJURY 0 310 Airplane 0 315 Airplane Product
Liability

o 150 Recovery ofOverpayment 0 320 Assault, Libel &

& Enforcement ofJudgment

Slander

o 151 Medicare Act

0 330 Federal Employers'

o 152 Recovery of Defaulted

Liability

PERSONAL INJURY 0 362 Personal Injury -
Med. Malpractice 0 365 Personal Injury -
Product Liability 0 368 Asbestos Personal
Injury Product Liability

Student Loans

0 340 Marine

PERSONAL PROPERTY

o (Excl. Velerans)

0 345 Marine Product

153 Recovery ofOverpayment

Liability

ofYeteran's Benefits
o 160 Stockholders' Suits

0 350 Motor Vehicle 0 355 Motor Vehicle

o 190 Other Contract

Product Liability

a a 195 Contract Product Liability

360 Other Personal

o 196 Franchise

Iniurv

0 370 Other Fraud 0 371 Truth in Lending 0 380 Other Personal
Property Damage
a 385 Property Damage
Product Liability

REAL PROPERTY
a 210 Land Condemnation a 220 Foreclosure a 230 Rent Lease & Ejectment a 240 Torts to Land o 245 Ton Product Liability
::J 290 All Other Real Property

CMLRIGHTS

PRISONER PETITIONS

a 441 Voting

a 510 Motions to Vacate

a 442 Employment

Sentence

~ 443 Housing!

Habeas Corpus:

Accommodations

a 530 General

a 444 Welfare

a 535 Death Penalty

a 0 445 Amer. w!Disabilities - 540 Mandamus & Other

Employment

0 550 Civil Rights

a a 446 Amer. w!Disabilities - 555 Prison Condition

Other
a 440 Other Civil Rights

Citizen or Subject of a Forei Caun

o 3 0 3 Foreign Nation

FORFElTURE~ENALTY

BANKRUP"fCY

o 610 Agriculture o 620 Other Food & Drug o 625 Drug Related Seizure

o 422 Appeal 28 USC 158 o 423 Withdrawal
28 USC 157

of Property 21 USC 881
o 630 Liquor Laws o 640 R.R. & Truck o 650 Airline Regs. o 660 Occupational

'RIGHTS
o 820 Copyrights o 830Patent o 840 Trademark

SafetylHealth
o 690 Other

LAROR
o 710 Fair Labor Standards
Act
a 720 LaborlMgmt. Relations a 730 LaborlMgmt.Reponing
& Disclosure Act
a 740 Railway Labor Act a 790 Other Labor Litigation a 791 Empl. Ret. Inc.
Security Act

SO( JA , SIOC JRITY
o 861 HIA (l395ft) a 862 Black Lung (923) a 863 DlWC!DIWW (405(g» a 864 SSID Title XVI a 865 RSI (405(g))
FEDERAL TAX SUITS
a 870 Taxes (U.S. Plaintiff
or Defendant)
a 871 IRS-Third Party

26 USC 7609

IMMIGRATION
o 462 Naturalization Application o 463 Habeas Corpus -

Alien Detainee
a 465 Other Immigration

Actions

o6 06
.m'H11,R
0 400 State Reapportionment 0 410 Antitrust 0 430 Banks and Banking 0 450 Commerce 0 460 Deportation 0 470 Racketeer Influenced and
Corrupt Organizations 0 480 Consumer Credit 0 490 Cable/Sat TV
0 810 Selective Service 0 850 Securities!Commodities!
Exchange
a 875 Customer Challenge
12 USC 3410
a 890 Other Statutory Actions a 891 Agricultural Acts a 892 Economic Stabilization Act a 893 Environmental Matters a 894 Energy Allocation Act a 895 Freedom oflnformation
Act
a 900Appeal ofFee Determination
Under Equal Access to Justice
a 950 Constitutionality of
State Statutes

V. ORIGIN
~ 1 Original
Proceeding

o (Place an "X" in One Box Only)

2 Removed from

0 3 Remanded from

State Court

Appellate Court

0 4 Reinstated or 0
Reopened

5

Tanroatnhs~fre s CI

rred dist

from rict

0 6 Multidistrict
Litigation

Appeal to District

0

7

Judge from Magistrate

Jud ent

VI. CAUSE OF ACTION Brief description of cause:

.

. _

.

Violatea Fair Housing Act & ADA in design & construction of inaccessIble multIfamIly dwellings

VII. REQUESTED IN

0 CHECK IF THIS IS A CLASS ACTION

DEMAND $

CHECK YES only ifdemanded in complaint:

COMPLAINT:

UNDER F.R.C.P. 23 .

JURY DEMAND:

0 Yes 0 No

VIII. RELATED CASE(S)

IF ANY

(See instructions):

JUDGE

DOCKET NUMBER

DATE
03/04/2009
FOR OFFICE USE ONLY

SIGNATURE OF ATTORNEY OF RECORD
JOHN R. PARKER, Assistant United States Attorney

-------- RECEIPT #

------------- AMOUNT

APPLYING IFP _ _ _ _ _ __

-------- JUDGE

MAG. JUDGE _ _ _ _ _ _ _ _ _ __

 
 Case 3:09-cv-00412-B Document 18 Filed 05/08/09 Page 1 of 14 PageID 88

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

UNITED STATES OF AMERICA,

§

Plaintiff,

§

v.

§

CIVIL ACTION NO. 3:09-cv-0412-B

JPI CONSTRUCTION L.P., et al.,

§

Defendants.

§

ANSWER AND DEMAND FOR JURY TRIAL

Defendants JPI Constru ction, L.P.; Multifam ily Construction, L.L.C.; JPI Apartm ent

Development, L.P. d/b/a JPI Campus Quarters ; Lifestyle Apartment Development Service,

L.L.C.; Jefferson Bend, L.P. d/b/a Jefferson at Mission Gate Apartments; Jefferson Lake Creek,

L.P. d/b/a Jefferson Center Apartm ents; and Apartment Community Realty, L.L.C. (collec tively

"Defendants"), by undersigned c ounsel, hereby answer the Com plaint filed by the United States

of America ("Plaintiff") as follows:

1. Paragraph 1 is Plaintiff's assessm ent of the Complaint to which no response is

required. If a response is requir ed, Defendants deny that they viol ated the Fair Housing Act or

the Americans with Disabilities Act, that they discriminated against persons with disabilities, and

that there is any need to enforce these Acts in this instance.

This lawsuit is the culm ination of Plaintiff's discussions with Defendants over m any

years preceding its filing. Desp ite those m any years of P laintiff's indecision about whether to

proceed at all, Plaintiff has now chosen to as sert claims which, if validated, would change an d

expand the requirements of the Fair Housing Act and Americans with Disabilities Act far beyond

both Congress' intent and the letter of the statutes.

The Fair Housing Act, as adopted by Congr ess and interpreted by the courts, includes

seven modest accessibility requirem ents. Co ngress did not m andate any specific techn ical

Case 3:09-cv-00412-B Document 18 Filed 05/08/09 Page 2 of 14 PageID 89
design criteria as necessary to be m et in order to satisfy the seven requirem ents of the Act . Instead, the requirements were intended to be mode st and to not add significant additional costs. Accessibility is the ultimate touchstone by which conformity with the FHA is determined. The United State Departm ent of Housing and Urba n Development ("HUD") has never issued any regulation under the Adm inistrative Procedures Act that seeks to make any particular technical design or national building code mandatory.
When it com es to i mplementing the seven m odest requirements, the Fair Housing Act recognizes there is great flexibilit y as to how to dem onstrate that a property is accessible to and usable by persons with disabilities. Alt hough one recognized m eans is by designing and constructing a building in accord ance with one of the non-m andatory HUD "safe harbors," such as the Fair Housing Act Guidelines, which include suggested dimensions for particular amenities within an apartment, it is well-es tablished that the safe harbors are not mandatory and that any creative approach may be used to achieve access ibility. Ultimately, satisfying the seven m odest requirements of the Fair Housing Act is all that is required.
To the extent that Plaintiff's claim of discrimination against the Defendants is based upon demonstrating that the amenities within th e apartments deviate f rom the r ecommended dimensions in the non-mandatory safe harbors, such a showing cannot and will not establish noncompliance with the Fa ir Housing Act. The s afe harbors are not a m inimum standard that must be satisfied; they are not the exclus ive means of assessing compliance. Rather, the dispositive question at issue in a Fair Housing Act des ign and construction case is whether the dwelling units and common areas as designed and construc ted are reasonably accessible to most persons with disabilities. Defendants believe that they are.
The properties at issue in this litigation—J efferson at Mission Ga te ("Mission Gate"), Jefferson Center Apartm ents ("Jefferson Center "), and the 205 or more other unidentified
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Case 3:09-cv-00412-B Document 18 Filed 05/08/09 Page 3 of 14 PageID 90
properties referenced in the Com plaint—do not violate the Fair Housing Act or the Am ericans with Disabilities Act. Not all of the properties were designed or constructed by Defendants. As to those properties that were designed or cons tructed by one or m ore of the Defendants, each such property com plies with governing accessibility requirements and thus is accessible and usable to persons with disabilities within the full meaning and protection of the Fair Housing Act and the Americans with Disabilities Act. Any i ssues that may exist with a building are minor, isolated, and are best able to be resolved th rough the adaptability of the units. As will be demonstrated throughout this litigation, Plaintiff's assertions of discrim ination by these Defendants are wholly unfounded.
JURISDICTION AND VENUE 2. Paragraph 2 is a legal conclu sion to which no response is required. To the extent a response is required, Defendants adm it that the Court has subject-matter jurisdiction over this action as it relates to the named Defendants and the two named properties. 3. Paragraph 3 is a legal conclusion to whic h no response is required. To the extent a response is required, Defendants adm it that venue is proper in this Court with respect to the named Defendants and the two nam ed properties. However, to the extent Paragraph 3 is construed as containing allegations that any events or omissions took place which could give rise to a cause of action, the allegations are denied.
THE PROPERTIES 4. Defendants admit the allegations in sentence one of Paragraph 4, and further aver that Mission Gate was design ed and cons tructed in accordan ce with the acces sibility requirements of the federal Fair Housing Act and the Americans with Disabilities Act. W ith respect to the allegation in sentence 2 of Paragraph 4, no defendant is a current owner of Mission
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Case 3:09-cv-00412-B Document 18 Filed 05/08/09 Page 4 of 14 PageID 91
Gate, and Def endants therefore lack information sufficient to f orm a belief as to the truth or falsity of that allegation.
5. Defendants admit the allegations in sentence one of Paragraph 5, and further aver that Jefferson Center was designed and construc ted in accordance with the access ibility requirements of the federal Fair Housing Act and the Americans with Disabilities Act. W ith respect to the allegatio n in senten ce 2 of Pa ragraph 5, no defendant is a current owner of Jefferson Center, and Defendants ther efore lack information sufficient to form a belief as to the truth or falsity of that allegation.
DEFENDANTS 6. Defendants admit the allegations in sentence one of Paragraph 6 to the extent that JPI Construction, L.P. ("JPI Constr uction") is a Delaware lim ited partnership with its corporate offices are located at 600 E. Las Colinas Boulevard, Suite 1800, Irving, Texas 75039-5625. With respect to the allegations in sentences two and three of Paragraph 6, Defendants admit that JPI Construction has served as a contractor fo r certain m ulti-family housing projects built for first occupancy after March 13, 1991, and that in that capacity, JPI Construction has worked with specific JPI-affiliates. Regarding the allegations in senten ce four of Paragraph 6, Defendants state that JPI Construction, as a contractor, was involved in the construction of Mission Gate and Jefferson Center. However, as to the final clause in sentence four, because Plaintiff has not identified or specified the "other covered multi-family dwellings" it a lleges were designed and constructed by JPI Construction, Defendants cannot fully respond to the allegations as written and therefore deny said allegations. Defendants deny all remaining allegations in Paragraph 6. 7. Defendants admit the allegations in sentence one of Paragraph 7 to the extent that Multifamily Construction, L.L.C. ("Multif amily Construction") is a Delaware lim ited liability company with its corporate offices are located at 600 E. Las Colinas Boulevard, Suite 1800,
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Irving, Texas 75039-5625. W ith respect to the allegations in sentences two and three of Paragraph 7, Defenda nts admit that Multifam ily Construction is a general partner in JPI Construction. Defendants deny all remaining allegations in Paragraph 7.
8. Defendants admit the allegations in sentence one of Paragraph 8 to the extent that JPI Apartment Development, L.P. d/b/a JPI Campus Quarters ("JPI Apartment Development") is a Delaware limited partnership registered to do business in Texas, and that its co rporate offices are located at 600 E. L as Colinas Boulev ard, Suite 1800, Irving, Texas 75039-5625. W ith respect to the allega tions in senten ce two of Paragraph 8, Defendants aver that JP I Apartment Development was involved in the design and cons truction of Mission Gate and Jefferson Center. However, as to the final clause in sentence two, because P laintiff has not identified o r specified the "other covered multi-family dwellings" it a lleges were designed a nd constructed by JP I Apartment Development, Defendants cannot f ully respond to the a llegations as written an d therefore deny said allegations. Defendants deny all remaining allegations in Paragraph 8.
9. Defendants admit the allegations in sentence one of Paragraph 9 to the extent that Lifestyle Apartment Development Service, L.L.C. ("Lifestyle Apartment Development") is a Delaware limited liability com pany, and tha t its corporate offices are located at 6 00 E. Las Colinas Boulevard, Suite 1800, Irving, Texas 75039- 5625. W ith respect to the allegations in sentences two and three of Paragraph 9, Defendants admit that Lifestyle Apartment Development is a general partner in JPI Apartm ent Development. Defendants deny all rem aining allegations in Paragraph 9.
10. Defendants admit the allegations in sentence one of Paragraph 10 to the extent that Jefferson Bend, L.P. d/b/a Jefferson Mission Gate ("Jefferson Bend") is a Delaware lim ited partnership registered to do business in Texas, an d that its corporate offices are located at 600 E. Las Colinas Boulevard, Suite 1800, Irving, Texas 75039-5625. With respect to the allegations in
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sentences two and three, Defendants aver that Jefferson Bend is a form er owner of Mission Center and was the owner of property at the tim e it was designed and constructed. De fendants deny all remaining allegations in Paragraph 10.
11. Defendants admit the allegations in se ntence one of Paragraph 11, except that Jefferson Lake Creek, L.P. d/b/ a Jefferson Center Apartm ents ("Jefferson Lake Creek") is registered to do business in Texas, and that its corporate offices are located at 600 E. Las Colinas Boulevard, Suite 1800, Irving, T exas 75039-5625. W ith respect to the allega tions in sentences two and three, Defendants aver th at Jefferson Lake Creek is a fo rmer owner of Jefferson Center and was the owner of pr operty at the time it was designed and constructed. Defenda nts deny all remaining allegations in Paragraph 11.
12. Defendants admit the allegations in sentence one of Paragraph 12 to the extent that Apartment Community Realty, L.L.C. ("Ap artment Community Realty") is a Delaware limited liability com pany, and that its co rporate offices are located at 600 E. Las Colinas Boulevard, Suite 1800, Irving, Texas 75039-5625. With respect to the allegations in sentence 2, Defendants aver that Apartment Community Realty was a general partner in Jefferson Bend and Jefferson Lake Creek at the tim e that the M ission Gate and Jefferson Center properties were designed and constructed. Defendants deny all remaining allegations in Paragraph 12.
OTHER PROPERTIES 13. Defendants aver that th e allegations contained in Paragraph 13 are vague and ambiguous and, without further clarification, De fendants are unable to fully respond to the allegations as written. Specifi cally, Plaintiff has failed to iden tify or specify the "205 or m ore other multi-family housing properties" that it alleges were designed and constructed by Defendants. Notwithstanding this am biguity, Defendants deny any inference that any other multi-family apartment projects, not specified or identified by Plaintif f, somehow violate the
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accessibility requirements of the F air Housing Act or the Americans with Disab ilities Act. Moreover, to the extent the alle gations in Paragraph 13 are intend ed to provide factual support for Plaintiff's allegations that Defendants have engaged in a pattern or practice of designing, constructing, controlling, managing, and/or owning apartment properties in violation of the Fair Housing Act, or that Defenda nts have engaged in a patter n or practice of designing and constructing rental or sales o ffices in v iolation of the Am ericans with Disab ilities Act, Defendants specifically deny these allegations.
FACTUAL ALLEGATIONS 14. Defendants admit the allegations in Paragrap h 14 as they r elate to Mission Gate and Jefferson Center. However, regarding th e properties described in Paragraph 1 3, because Plaintiff has not identified or specified the "205 or more other covered multi-family dwellings" it alleges were designed and cons tructed by Defendants, Defendant s cannot fully respond to the allegations as written and therefore deny said allegations. 15. The allegations in Paragraph 15 consist of legal conclusions to which no response is required. However, to the ex tent that Paragraph 15 is deem ed to contain facts, su ch facts are denied. 16. The allegations in Paragraph 16 consist of legal conclusions to which no response is required. However, to the ex tent that Paragraph 16 is deem ed to contain facts, su ch facts are denied. 17. The allegations in Paragraph 17 consist of legal conclusions to which no response is required. However, to the ex tent that Paragraph 17 is deem ed to contain facts, su ch facts are denied. 18. Defendants deny the allegations in Paragraph 18, including all subsections.
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19. Defendants aver that the allegations in Paragraph 19 are vague and ambiguous because Plaintiff has failed to id entify or specify in any way the properties to which it refers. Notwithstanding this ambiguity, Defendants deny the allegations in Pa ragraph 19, including all subsections.
20. The allegations in Paragraph 20 consist of legal conclusions to which no response is required. However, to the exte nt that paragraph 20 is deem ed to contain facts, su ch facts are denied. Furthermore, regarding the properties described in Paragraph 13, Defendants aver that the allegations in Paragraph 20 are vague and ambiguous because Plain tiff has failed to identify or specify in any way the properties to which it refers.
21. Defendants admit the allegations in Paragrap h 21 as they r elate to Mission Gate and Jefferson Center. However, regarding the properties described in Paragraph 13, because Plaintiff has not identified or specified the "205 or more other covered multi-family dwellings" it alleges contain rental or sale s offices, Defendants cannot fully respond to the allegations as written and therefore deny said allegations.
22. The allegations in Paragraph 22 consist of legal conclusions to which no response is required. However, to the exte nt that paragraph 22 is deem ed to contain facts, su ch facts are denied. Furthermore, regarding the properties described in Paragraph 13, Defendants aver that the allegations in Paragraph 22 are vague and ambiguous because Plain tiff has failed to identify or specify in any way the properties to which it refers.
23. Defendants deny the allegations in Paragraph 23. 24. Defendants aver that the allegations in Paragraph 24 are vague and ambiguous because Plaintiff has failed to id entify or specify in any way the properties to which it refers. Notwithstanding this ambiguity, Defendants deny the allegations in Paragraph 24.
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FAIR HOUSING ACT CLAIMS 25. Defendants hereby incorporate by reference, as if fully set f orth herein, their responses to the allegations in Paragraphs 1 through 24 of the Com plaint with respect to the allegations contained in Paragraph 25. 26. Defendants deny the allegations contained in Paragraph 26. 27. Defendants deny the allegations contained in Paragraph 27. 28. Defendants deny the allegations cont ained in Paragra ph 28, including all subsections 29. Defendants deny the allegations contained in Paragraph 29. 30. Defendants deny the allegations contained in Paragraph 30.
AMERICANS WITH DISABILITIES ACT CLAIMS 31. Defendants hereby incorporate by reference, as if fully set f orth herein, their responses to the allegations in Paragraphs 1 through 30 of the Com plaint with respect to the allegations contained in Paragraph 31. 32. Defendants deny the allegations contained in Paragraph 32. 33. Defendants deny the allegations contained in Paragraph 33. 34. Defendants deny the allegations cont ained in Paragra ph 34, including all subsections. 35. Defendants deny the allegations contained in Paragraph 35. 36. Defendants deny the allegations contained in Paragraph 36. 37. All allegations set forth in the Complaint, whether express or implied, that are not specifically admitted, denied, or qualified herein are hereby denied.
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PRAYER FOR RELIEF Defendants deny that the Plaintiff is entitled to any of its requested relief.
AFFIRMATIVE AND OTHER DEFENSES FIRST DEFENSE
In general, Plaintiff' s Complaint fails in whole or in part to state a claim upon which relief may be granted pursuant to Federal Rule of Civil Procedure 12(b)(6).
SECOND DEFENSE Specifically, the Com plaint fails to stat e a claim upon which relief m ay be gra nted because, as discussed in response to Paragraph 1 above, Mission Gate, Je fferson Center, and the 205 or m ore other properties referenced in th e Complaint were designed and constructed to comply with governing accessibility requirements and thus to be accessible and usable to persons with disabilities within the f ull meaning and protection of the Fair Housing Act and the Americans with Disabilities Act.
THIRD DEFENSE Plaintiff's claims for civil penalties are barred in whole or in part by the federal five-year statute of limitation pursuant to 28 U.S.C. § 2462.
FOURTH DEFENSE Plaintiff's claims for monetary damages are barred in whole or in pa rt by the three-year statute of limitations pursuant to 28 U.S.C. § 2415.
FIFTH DEFENSE Plaintiff's claim for equitable relief, incl uding its request to retrofit non-compliant properties, is time-barred.
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SIXTH DEFENSE Even if liability could be proven, given Pl aintiff's delay in pursuing the relief, the equitable relief sought is inappropriate, unfair, and unnecessary.
SEVENTH DEFENSE Plaintiff has f ailed to join the cu rrent owners and the various design professionals involved in the design and constr uction of Mission Gate, Jef ferson Center or the 205 or m ore other properties referenced in the Complaint as necessary part ies under Rule 19 of the Federal Rules of Civil Procedure. The properties in this litigation were sold long ago, and the Defendants have no interest in, or even any access to , the properties at issue. Accordingly, the curren t owners are necessary parties to this litigation, because without their p articipation, Plaintiff cannot obtain the rem edial relief it seeks, including its request to retrofit non-compliant properties. The current owners' participation is further necessitated because they have a substantial financial interest in the outcom e of the lit igation. More specifically, a judgm ent ordering redesign and renovations of units and common areas of such properties will affect the value of, or impair or impede the marketability of, the current owners' titles. Finally, the abs ence of the current owners would leave Defendants subject to substantial risk of incurring double, m ultiple, or otherwise inconsistent obligations. In addition, the design profe ssionals, including architectural firm s and civil eng ineers, were the entities who designed the properties and th erefore are also liable for any alleged design and construction violations. The design professi onals are necessary parties to th e litigation because disposing of the action in favor of the pl aintiff and in the desig n professionals' absence may create a negative p recedent against the design professionals in future proceedings, and may
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constitute a finding against the design professionals regarding their f ulfillment of contractual duties.
Plaintiff must either add the necessary parties or this Complaint should be dismissed by the Court under Rule 19 of the Federal Rules of Civil Procedure.
EIGHTH DEFENSE The alleged actions or omissions at issue in th is litigation were not intentiona l, willful, taken in disregard of the rights of others, or otherwise based on any discriminatory animus.
NINTH DEFENSE The alleged violations, if any, resulted from the acts, fault, neglig ence or om issions of individuals or parties other than Defendants.
TENTH DEFENSE The remedies sought by Plaintiff are inequitable or improper.
ELEVENTH DEFENSE Plaintiff's claims may be barred in whole or in part by the doctrines of res judicata and/or collateral estoppel. Defendants the right to assert additional defenses as discovery proceeds and reveals facts not currently known or available to them. WHEREFORE, having f ully answered the allegations contained in the Complain t, Defendants request entry of judgm ent in their favor on the Com plaint along with an award of appropriate fees and costs and such other and further relief as the Court may find proper.
DEMAND FOR JURY TRIAL Defendants hereby demand a trial by jury on all issues so triable.
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Respectfully submitted,
By: s/ William L. Sessions William Lewis Sessions Texas Bar No. 18041500 CONNER & WINTERS, LLP 1700 Pacific Avenue, Suite 2250 Dallas, Texas 75201 Direct Telephone: (214) 217-8855 Direct Facsimile: (214) 217-8856 Alternative Facsimile: (214) 217-8061 Email: lsessions@cwlaw.com Christopher B. Hanback (Pro Hac Vice Pending) D.C. Bar No. 232579 Lynn E. Calkins (Pro Hac Vice Pending) D.C. Bar No. 445854 Rafe Petersen (Pro Hac Vice Pending) D.C. Bar No. 465542 HOLLAND & KNIGHT LLP 2099 Pennsylvania Avenue, N.W., Suite 100 Washington, D.C. 20006 Telephone: (202) 955-3000 Facsimile: (202) 955-5564 Email: christopher.hanback@hklaw.com Email: lynn.calkins@hklaw.com Email: rafe.petersen@hklaw.com ATTORNEYS FOR DEFENDANTS
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CERTIFICATE OF SERVICE

I hereby certify that I electronically filed the foregoing docum ent with the clerk of court for the U.S. District Court, Northe rn District of Texas, using the electronic case filing system of the court. The electronic case filing system sent a “Notice of Electronic Filing” to the following attorneys of record wh o have consented in w riting to ac cept this notice as service of this document by electronic means:

James T. Jacks U.S. Attorney's Office 1100 Commerce Street 3rd Floor Dallas, TX 75242 Email: jim.jacks@usdoj.gov

John R. Parker U.S. Attorney's Office 1100 Commerce Street 3rd Floor Dallas, TX 75242 Email: john.parker@usdoj.gov

Kevin J. Kijewski U.S. Department of Justice - Civil Rights Division 950 Pennsylvania Avenue N.W. Washington, D.C. 20530 Email: kevin.kijewski@usdoj.gov

Jennifer E. McAllister U.S. Department of Justice - Civil Rights Division 950 Pennsylvania Avenue N.W. Washington, D.C. 20530 Email: jennifer.mcallister@usdoj.gov

And I hereby certify that I served a copy of the foregoing docum ent via first class m ail postage prepaid on the following:

Michael S. Maurer U.S. Department of Justice - Civil Rights Division 950 Pennsylvania Avenue N.W. Washington, D.C. 20530

May 8, 2009
Date
# 6237787_v12

s/ William L. Sessions William L. Sessions

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 Case 3:09-cv-00412-B Document 236 Filed 04/15/11 Page 1 of 60 PageID 10042

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

)

UNITED STATES OF AMERICA,

)

)

Plaintiff,

)

)

v.

)

)

JPI CONSTRUCTION, L.P.; MULTIFAMILY

)

CONSTRUCTION, L.L.C.; JPI APARTMENT

) Civil Action No. 3:09-cv-412-B

DEVELOPMENT, L.P. D/B/A JPI CAMPUS

)

QUARTERS; LIFESTYLE APARTMENT

)

DEVELOPMENT SERVICE, L.L.C.; JEFFERSON

)

BEND, L.P. D/B/A JEFFERSON AT MISSION GATE )

APARTMENTS; JEFFERSON LAKE CREEK, L.P.

)

D/B/A JEFFERSON CENTER APARTMENTS; and

)

APARTMENT COMMUNITY REALTY, L.L.C.,

)

)

Defendants.

)

________________________________________________)

MEMORANDUM IN SUPPORT OF UNITED STATES’ MOTION FOR PARTIAL SUMMARY JUDGMENT AS TO LIABILITY
TABLE OF CONTENTS I. SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 II. FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
A. Procedural History . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 B. JPI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 C. Experts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 D. Material Facts Not In Dispute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7 III. ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 A. Summary Judgment Standard . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

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B. Design and Construction Requirements of the FHA . . . . . . . . . . . . . . . . . . . . . 11 C. HUD’s Interpretation of the FHA Is Entitled to Deference . . . . . . . . . . . . . . . . 19 D. JPI’s Properties are Covered Dwellings Under the FHA . . . . . . . . . . . . . . . . . . 21 E. JPI’s Properties Contain Inaccessible Features in Violation of
the FHA, HUD’s Regulations, and the Guidelines . . . . . . . . . . . . . . . . . . . . . . . 22 1. Accessible public and common use areas, 42 U.S.C. § 3604(f)(3)(C)(i) . . . 22
a. Accessible routes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 b. Accessible public and common use facilities . . . . . . . . . . . . . . . . . . 28 2. Usable doors, 42 U.S.C. § 3604(f)(3)(C)(ii) . . . . . . . . . . . . . . . . . . . . . . . . . 29 3. Accessible route into and through a dwelling, 42 U.S.C. § 3604(f)(3)(C)(iii)(I) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .30 4. Light switches, electrical outlets, thermostats, and other environmental controls in accessible locations, 42 U.S.C. § 3604(f)(3)(C)(iii)(II) . . . . . . . 31 5. Usable kitchens and bathrooms, 42 U.S.C. § 3604(f)(3)(C)(iii)(IV) . . . . . . 31 a. Usable kitchens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 b. Usable bathrooms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 F. JPI’s Properties Contain Inaccessible Features in Violation of the ADA . . . . . 35 G. The Accessibility Violations Constitute a Pattern or Practice of Discrimination and Denial of Rights to a Group of Persons . . . . . . . . . . . . . . . 36 H. JPI Is Liable for Accessibility Violations at the Properties . . . . . . . . . . . . . . . . 38 I. JPI Has Not Complied with Any Other Recognized, Objective Measure of Accessibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 J. JPI Has Not Shown that Any Property Qualifies for the Site Impracticality Exemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 IV. THE COURT SHOULD ORDER JPI TO SUBMIT A REMEDIAL PLAN . . . 49 V. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .50

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TABLE OF AUTHORITIES Cases: Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Auer v. Robbins, 519 U.S. 452 (1997). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Balachowski v. Boidy, No. 95-CV-06340, 2000 WL 1365391 (N.D. Ill. Sept. 20, 2000). . . . . . 31 Baltimore Neighborhoods, Inc. v. Rommel Builders, 40 F. Supp. 2d 700 (D. Md. 1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11, 29, 38 Baltimore Neighborhoods, Inc. v. Sterling Homes Corp., No. 96-915, 1999 WL 1068458 (D. Md. Mar. 25, 1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 29 Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945). . . . . . . . . . . . . . . . . . . . . . . . . . . . .20 Bragdon v. Abbott, 524 U.S. 624 (1998). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12, 35 Celotex Corp. v. Catrett, 477 U.S. 317 (1986). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10 Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984). . . . . . . . . . . 19, 20 City of Edmonds v. Oxford House, Inc., 514 U.S. 725 (1995). . . . . . . . . . . . . . . . . . . . . . . . . . . .46 Davis v. The Mansards, 597 F. Supp. 334 (N.D. Ind. 1984). . . . . . . . . . . . . . . . . . . . . . . . . . . . .37 Epie v. Owens, No. 3:09-CV-1681-D, 2010 WL 5620959 (N.D. Tex. 2010). . . . . . . . . . . . . . . .39 Fair Hous. Advocates Assoc. v. City of Richmond Heights, 209 F. 3d 626 (6th Cir. 2000). . 46, 47 Fair Hous. Council, Inc. v. Vill. of Olde St. Andrews, Inc. (Olde St. Andrews I), 250 F. Supp. 2d 706 (W.D. Ky. 2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 24 Fair Hous. Council, Inc. v. Vill. of Olde St. Andrews, Inc. (Olde St. Andrews II), No. 3:98-CV-630, slip op. (W.D. Ky. June 18, 2003), aff’d, 210 F. App’x 469 (6th Cir. 2006). .17, 32 Glover v. Johnson, 138 F.3d 229 (6th Cir. 1998). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 Helen L. v. DiDario, 46 F.3d 325 (3d Cir. 1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Henrietta D. v. Giuliani, 246 F.3d 176 (2d Cir. 2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 International Bhd. of Teamsters v. United States, 431 U.S. 324 (1977). . . . . . . . . . . . . . . . . . . .36

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Long Island Care At Home, Ltd. v. Coke, 551 U.S. 158 (2007). . . . . . . . . . . . . . . . . . . . . . . . . . 20 Meyer v. Holley, 537 U.S. 280 (2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .19 Milliken v. Bradley, 433 U.S. 267 (1977). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 Mont. Fair Hous. v. Am. Capital Dev., 81 F. Supp. 2d 1057 (D. Mont. 1999). . . . . .11, 13, 31, 39 Paralyzed Veterans of America v. D.C. Arena, L.P., 117 F.3d. 579 ( D.C. Cir. 1997). . . . . . . . 24 Paralyzed Veterans of Am. v. Ellerbe Becket Architects & Eng’rs, 950 F. Supp. 393 (D.D.C. 1996). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 Radio and Television Broad. Technicians Local 1264 v. Broad. Serv. of Mobile, Inc., 380 U.S. 255 (1965). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .40 Savannah-Chatham Cnty. Fair Hous. Council v. Genesis Designer Homes, LLC, No. CV406-096 (S.D. Ga. Jan. 18, 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10, 37 Schweitzer v. Advanced Telemarketing Corp., 104 F.3d 761 (5th Cir. 1997). . . . . . . . . . . . 39, 40 Skidmore v. Swift & Co., 323 U.S. 134 (1944). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 Thomas Jefferson Univ. v. Shalala, 512 U.S. 504 (1994). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 United States v. Blaine Cnty, 363 F.3d 897 (9th Cir. 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 United States v. Bob Lawrence Realty, 474 F.2d 115 (5th Cir. 1973). . . . . . . . . . . . . . . . . . . . . .38 United States v. Edward Rose & Sons, 246 F. Supp. 2d 744 (E.D. Mich. 2003), aff’d, 384 F.3d 258 (6th Cir. 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20 United States v. Hallmark Homes, Inc., No. CV01-432, 2003 WL 23219807 (D. Idaho Sept. 29, 2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11 United States v. Ironworkers Local 86, 443 F.2d 544 (9th Cir. 1971). . . . . . . . . . . . . . . . . . . . . 37 United States v. Lansdowne Swim Club, 894 F.2d 83 (3d Cir. 1990). . . . . . . . . . . . . . . . . . . . . . 37 United States v. Mead Corp., 533 U.S. 218 (2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .19, 20 United States v. Quality Built Constr. (Quality Built I), 309 F. Supp. 2d 756 (E.D.N.C. 2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim United States v. Quality Built Constr. (Quality Built II), 309 F. Supp. 2d 767 (E.D.N.C. 2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .19, 29, 33

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United States v. Richard & Milton Grant Co., No. 2:01-cv-2069 (W.D. Tenn. Apr. 27, 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .passim
United States v. Shanrie Co. (Shanrie I), No. 05-CV-306-DRH, 2007 WL 980418 (S.D. Ill. Mar. 30, 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .passim United States v. Shanrie Co., 610 F. Supp. 2d 958 (S.D. Ill. 2009). . . . . . . . . . . . . . . . . . . . . . .39 United States v. Shanrie Co. (Shanrie II), 669 F. Supp. 2d 932 (S.D. Ill. 2009). . . . . . . . . . .11, 49 United States v. Sharlands Terrace, LLC, Nos. 3:04-CV-00292-LRH-RAM, 3:04-CV-00397-ECR-VPC, 2008 WL 4547209 (D. Nev. Oct. 1, 2008). . . . . . . . . . . . . . . . . . . .49 United States v. Taigen & Sons, Inc., 303 F. Supp. 2d 1129 (D. Idaho 2003). . . . . . . . . 11, 17, 38 United States v. Tanski, No.1:04-CV-714, 2007 WL 1017020 (N.D.N.Y. Mar. 30, 2007). .passim Whitaker v. West Village Ltd. P’ship, No. Civ.A.3:03-CV-0411-P, 2004 WL 1778963 (N.D. Tex. Aug. 4, 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .39 Whitaker v. West Village Ltd. P’ship, No. Civ.A.3:03-CV-0411-P, 2004 WL 2046771 (N.D. Tex. Sep. 10, 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 Young v. Pierce, 640 F. Supp. 1476 (E.D. Tex. 1986). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 Statutes and Regulations: 42 U.S.C. §§ 3601–3619 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 42 U.S.C. § 3601 note, Pub. L. No. 100-430, § 13(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 42 U.S.C. § 3604(f)(3)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 42 U.S.C. § 3604(f)(3)(C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12, 13, 21, 22, 46 42 U.S.C. § 3604(f)(3)(C)(i) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .22 42 U.S.C. § 3604(f)(3)(C)(ii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 42 U.S.C. § 3604(f)(3)(C)(iii)(I) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .30 42 U.S.C. § 3604(f)(3)(C)(iii)(II) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .31 42 U.S.C. § 3604(f)(3)(C)(iii)(III) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

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42 U.S.C. § 3604(f)(3)(C)(iii)(IV) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 42 U.S.C. § 3604(f)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 42 U.S.C. § 3604(f)(5)(C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14 42 U.S.C. § 3604(f)(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 42 U.S.C. § 3614(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36, 38 42 U.S.C. § 3614(d)(1)(A)–(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 42 U.S.C. § 3614(d)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 42 U.S.C. § 3614(d)(1)(C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 42 U.S.C. § 3614a . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14 42 U.S.C. §§ 12181–12189 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1 42 U.S.C. § 12183 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .35 42 U.S.C. § 12186(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 42 U.S.C. § 12188(b)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 24 C.F.R. §§ 100.200–205 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 24 C.F.R. § 100.201 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 24 C.F.R. § 100.201 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .21, 22, 23, 30 24 C.F.R. § 100.205(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46, 47 24 C.F.R. § 100.205(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .22 24 C.F.R. § 100.205(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 24 C.F.R. § 100.205(c)(3)(i) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .30 24 C.F.R. § 100.205(c)(3)(ii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 24 C.F.R. § 100.205(c)(3)(iv) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .31 24 C.F.R. § 100.205(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .21

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24 C.F.R. § 100.205(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
24 C.F.R. § 100.205(e)(2)(i) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15
24 C.F.R. ch. I, subch. A, app. IV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15
28 C.F.R. § 36.104 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
28 C.F.R. § 36.401 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
28 C.F.R. § 36.406, App. A (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
28 C.F.R. § 36.406 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .35
28 C.F.R. Part 36, App. A (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4
28 C.F.R. Pt. 36, App. A, § 4.1.2(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .36
28 C.F.R. Pt. 36, App. A, § 4.6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .36
Administrative Materials: HUD v. Nelson, No. 05-068FH, 2006 WL 4540542, at *5 (Sep. 21, 2006), aff’d, 320 F. App’x 635 (9th Cir. 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim HUD v. Perland Corp., No. 05-96-1517 8, 1998 WL 142159 (HUDALJ Mar. 30, 1998). . 29, 31 Implementation of the Fair Housing Amendments Act of 1998; Final Rule, 54 Fed. Reg. 3232, 3243–52 (Jan. 23, 1989). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14
Fair Housing Accessibility Guidelines, 55 Fed. Reg. 24370–24487 (Jun. 15, 1990). . . . . . . 14, 47
Final Fair Housing Accessibility Guidelines, 56 Fed. Reg. 9472–9515 (Mar. 6, 1991). . . . passim Fair Housing: Accessibility Guidelines; Questions and Answers; Supplement to Notice, 59 Fed. Reg. 33362–63 (Jun. 28, 1994). . . . . . . . . . . . . . . . . . . . . . . . . . 15
Final Report of HUD Review of Model Building Codes, 65 Fed. Reg. 15740, 15756–57 (Mar. 23, 2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 20, 47
Final Report of HUD Review of the Fair Housing Accessibility Requirements in the 2003 International Building Code, 70 Fed. Reg. 9738 (Feb. 28, 2005). . . . . . . . . . . . . . . . . . . . . . . . . 25
Design and Construction Requirements; Compliance With ANSI A117.1 Standards, 72 Fed. Reg. 39540 (Jul. 18, 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15, 16, 41, 45

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Design and Construction Requirements; Compliance With ANSI A117.1 Standards; Final Rule, 73 Fed. Reg. 63610 (Oct. 24, 2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim Federal Rules: Fed. R. Civ. P. 56(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1 Other Authorities: H.R. Rep. No. 711, 100th Cong., 2d Sess. (1988), as reprinted in 1988 U.S.C.C.A.N. 2173–2230. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 13, 17, 46

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I. SUMMARY OF ARGUMENT Defendants (collectively “JPI”) have discriminated against persons with disabilities by
engaging in a longstanding pattern or practice—dating back nearly two decades—of building multi-family housing complexes with extensive and significant accessibility barriers, in violation of the Fair Housing Act, as amended, 42 U.S.C. §§ 3601–3619 (“FHA”), and the Americans with Disabilities Act, 42 U.S.C. §§ 12181–12189 (“ADA”). The undisputed facts, established through meticulous, objective surveys performed by highly-trained and nationally known experts retained by the United States, show that accessibility barriers are legion at 32 JPI properties, each selected by JPI for inclusion in this phase of discovery. See Dkt. 32, Supp. Joint Status Rep.; Dkt. 33, Second Supp. Joint Status Rep. As the initial owner, developer, and/or general contractor, JPI was responsible for the design and construction of these properties and is liable for violating the FHA and ADA. Accordingly, the Court should, pursuant to Federal Rule of Civil Procedure 56(c), grant partial summary judgment as to liability and order JPI to submit a plan for remedying the violations at the identified properties and for surveying and retrofitting the remaining properties in JPI’s portfolio.
II. FACTS A. Procedural History
On March 4, 2009, the United States filed this action against JPI alleging that JPI designed and constructed multi-family housing in violation of the FHA and ADA. On November 16, 2009, the Court issued a scheduling order identifying the properties in JPI’s portfolio that are the subject of this phase of discovery. Dkt. 35. The order provided that the parties would have until December 31, 2010, to inspect each property. For the properties the United States inspected, it filed expert reports containing the detailed findings of each inspection. As provided for in the

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scheduling order, JPI’s inspectors visited each property inspected by the United States and filed
responsive reports.
B. JPI
Since 1991, the specific JPI entities named as defendants and other closely-related JPI
entities have collectively engaged in the design and construction of 210 multi-family housing
developments in 26 states and the District of Columbia.1 Ex. 2, Defs. Init. Disc., at 2 n.1 and Ex.
C, App. 127, 131–41; Ex. 3, Defs. Resps. to U.S. Interrog. No. 2, App. 142–92; Dkt. 32, Supp.
Joint Status Rep., at 24. The 210 JPI properties, including the 32 that are discussed in this
motion, were designed and constructed through the collaborative efforts of JPI project-specific
partnerships, developers, and general contractors. Collectively, these entities have the following
features:
 All JPI entities are headquartered at one centralized location, 600 E. Las Colinas Blvd, Suite 1800, Irving, TX. Ex. 4, Defs. Resps. to U.S. Interrog. No. 7, App. 193–259; Ex. 5, Sec’y of State Certificates of Fact, App. 260–94.
 JPI Partners, L.L.C., whose assumed corporate name is “JPI,” provided the personnel for the purchase, development, construction, management, and financial services needs of all other JPI entities.2 Ex. 6, Motsenbocker Dep. (Jan. 26, 2011), at 18:4–5; 21:4–23; 25:12– 26:4, App. 298–300; Ex. 7, Motsenbocker Dep. (Feb. 14, 2011), at 166:16–168:16, App. 311.
 The JPI entities that designed and constructed the 32 properties discussed in this motion share the same managerial officers or officials. Ex. 5, Sec’y of State Certificates of Fact, App. 260–94.
 All JPI entities followed the same FHA/ADA compliance policies and procedures when they designed and constructed the 210 properties. Ex. 7, Motsenbocker Dep. (Feb. 14, 2011), at 190:10–191:17, App. 312; Ex. 6, Motsenbocker Dep. (Jan. 26, 2011), 178:23– 25, App. 303.
 The same JPI trademark is widely used on promotional materials and letterhead. Ex. 6 Motsenbocker Dep. (Jan. 26, 2011), at 139:4–20, App. 301.
1 Jefferson Arts District was under construction at the time of the United States’ inspection in April 2010. 2 JPI Partners, L.L.C. was formerly JPI Partners, Inc. and filed an Articles of Conversion with the Office of the Secretary of State of Texas on August 31, 1999.

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 The JPI enterprise has a single corporate mission statement. Ex. 6, Motsenbocker Dep. (Jan. 26, 2011), at 286:17–22, App. 304. As discussed in Part III.H, infra, JPI, because of its operational unity, is liable for the
accessibility violations at the properties.
C. Experts Five accessibility experts were primarily responsible for conducting property inspections
for the United States. Ken Schoonover, a licensed professional engineer and head of KMS Associates, Inc., currently chairs the ANSI A117.1 standards committee3 and has spent his career working with building codes and accessibility standards. See Dkt. 47-2, Schoonover Rep., at 2–3; Dkt. 70-2, Schoonover CV. Gina Hilberry, a licensed architect and principal at Cohen Hilberry Architects of St. Louis, has extensive experience in accessibility, including as a certified accessibility inspector/plans examiner with the International Code Council and as a member of the ANSI A117.1 standards committee. Dkt. 50-2, Hilberry Rep., at 2–5, 13–16. Frank Colby, a licensed architect, has served extensively as an FHA and ADA consultant. See Dkt. 55-2, Colby Rep., at 4–5, Dkt. 55-5. John Catlin is a licensed architect and founding partner of LCM Architects, LLC and has 34 years of experience as an accessibility specialist. He has served on the United States Access Board and serves as a trainer for the U.S. Department of Housing and Urban Development’s (“HUD”) Fair Housing Accessibility FIRST Technical Assistance Program (www.fairhousingfirst.org). See Dkt. 45-2, LDM Rep., at 3–3; Dkt. 45-3, Catlin CV. Douglas Mohnke is a licensed architect with LCM Architects and has served extensively as an accessibility consultant. See Dkt. 45-2, LCM Rep., at 3–5; Dkt. 45-4, Mohnke CV.
3 The American National Standards Institute (“ANSI”) is a non-profit organization that promotes the development of voluntary standards in a variety of fields and industries. The A117.1 committee is dedicated to developing accessibility standards for construction, which is published as the American National Standard for Buildings and Facilities – Providing Accessibility and Usability for Physically Handicapped People, ANSI A117.1. See infra Part III.B.

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The United States’ experts surveyed each property by reviewing the architectural plans, observing and taking measurements of existing features at the property, and comparing those observations and measurements to the HUD regulations, 24 C.F.R. §§ 100.200–205, the Fair Housing Accessibility Guidelines, 56 Fed. Reg. 9472–9515 (attached at Ex. 8, App. 587–631),4 and the 1991 ADA Standards, 28 C.F.R. Part 36, App. A (2010). See Dkt. 45-2, LCM Report, at 2; Dkt. 47-2, Schoonover Report, at 13; Dkt. 50-2, Hilberry Report, at 5; Dkt. 55-5, Colby Report, at 5–8. Where the observations or measurements were not in compliance with the regulations, the Guidelines, or the 1991 Standards, those conditions were noted in the expert report filed for each property. The experts inspected all public and common use areas, including buildings such as clubhouses and laundry facilities, as well as pedestrian routes connecting the dwelling units to the public street or sidewalk and the onsite public and common use facilities. The experts inspected the interior of the dwelling units by determining the various unit types at the facility, e.g., one-bedroom units, two-bedroom units, etc., with the assistance of the architectural plans and the current management at the property. Where possible, the experts inspected at least three units of each unit type and recorded the observations and measurements that did not comply with the regulations, the Guidelines or the 1991 Standards. See Dkt. 45-2, LCM Report, at 8–9; Dkt. 47-2, Schoonover Report, at 13; Dkt. 50-2, Hilberry Report, at 5; Dkt. 55-5, Colby Report, at 6–8. The experts then prepared a detailed inspection report.5

4 The experts also reference ANSI A117.1–1986, as the regulations and Guidelines incorporate ANSI as the basis for Requirement 2, accessible and usable public and common use areas. 5 All property inspection reports were filed on ECF, and a complete copy was delivered to Judge Kaplan. Given the volume of the inspection reports filed in this case, the expert reports cited in this motion will be referred to by the docket number and have not been separately included in the appendix.

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Subsequent to the United States’ experts’ inspections, individuals retained by JPI reinspected each property and filed an inspection report.6 These individuals used a wide range of methodologies to inspect the properties for compliance with the FHA and ADA. Paul Sheriff, a wheelchair user who has no training or certification in architecture or engineering, inspected properties by videotaping himself navigating the property using his “custom-built, made-tomeasure wheelchair” and then preparing a brief written report. Dkt. 102-1, Sheriff Rep., at 11– 16. Mr. Sheriff testified both that he does not take measurements as part of his inspections, Ex. 9, Sheriff Dep. (Jan. 20, 2011), at 124:2–18, App. 653, and that he takes “thousands of measurements” using his wheelchair and physical characteristics. Ex. 9, Sheriff Dep. (Jan. 20, 2011), at 84:4–6, App. 651; Dkt. 102-1, Sheriff Rep., at 14 & n.5. Regardless of which is true, he does not record any measurements in his report that can be compared to, let alone dispute, the United States’ experts’ measurements.
Dr. Alison Vredenburgh, a researcher with a Ph.D in Industrial-Organizational Psychology, employed a methodology for property inspections consisting of photographing her associate, Dr. Zackowitz, who is not disabled, using a wheelchair in the public and common use areas and in the dwelling unit bathrooms and kitchens. Dkt. 82-1, Vredenburgh Rep., at 1; Ex. 10, Vredenburgh Dep. (Jan. 24, 2011), at 108:15–110:11; 117:21–121:2, App. 661–62, 664–65. The only measurements Dr. Vredenburgh took and recorded were in the unit bathrooms and kitchens. She then compared those measurements to measurements she had tested in a study, detailed in her initial report, which was funded by JPI. Dkt. 78-1, Vredenburgh Rep., at 4–7; Ex. 10, Vredenburgh Dep. (Jan. 24, 2011), at 47:4–16, 114:18–25, App. 660, 663. If the measurements corresponded with measurements she determined to be “accessible” in her study,
6 JPI did not file an inspection report for Jefferson at Marymoor, which was inspected by the United States’ expert prior to the filing of this lawsuit. JPI did file reports for three other properties inspected by the United States prior to filing.

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she concluded that the bathroom or kitchen was “usable.”7 Ex. 10, Vredenburgh Dep. (Jan. 24, 2011), at 127:11–129:10, App. 666–67; see, e.g., Dkt 78-2, Vredenburgh Rep., at 11. Dr. Vredenburgh did not measure slopes or cross-slopes of walkways or ramps. Id. at 2–3. Dr. Vredenburgh used the same methodology for every inspection. Ex. 10, Vredenburgh Dep. (Jan. 24, 2011), at 138:1–6, App. 668.
Mark Wales, who is not a licensed architect, inspected each property and compared his own observations and measurements with the United States’ expert’s observations and measurements. See generally Dkt. 79-1, Wales Rep.; Dkt. 79-3, Wales Rep., at 2; Ex. 11, Wales Dep. (Jan. 14, 2011), at 68:14–17, App. 675. Mr. Wales then responded to each item in the United States’ expert’s report by citing back to his main report and providing comments. See, e.g., Dkt. 79-3, Wales Rep., at 2. Mr. Wales described his methodology as relying on “a combination of a lot of things such as safe harbors, the other technical guidance, research, whatever it takes for me to determine whether a reasonable design consistent with the requirements that acts as a requirements [sic] has been obtained.” Ex. 11, Wales Dep. (Jan. 14, 2011), at 109:15–111:6, App. 676–77; Dkt. 79-1, Wales Rep., at 75–78 (listing sources relied upon). In many cases, Mr. Wales did not dispute the measurements recorded by the United States’ experts. See, e.g., Dkt. 192-2, Wales Rep., at 24 item 133; Ex. 11, Wales Dep. (Jan. 14, 2011), at 264:22–25, App. 670.
Pete Skarzenski is a licensed architect and head of Pete Skarzenski Consulting. He was formerly an architect with the Dallas architectural firm Fusch Serold & Partners, and in that capacity worked on multi-family housing projects for JPI. Ex. 12, Skarzenski Dep. (Feb. 3, 2011), at 36:13–37:3, App. 687. Since 2001, Mr. Skarzenski has consulted with JPI on

7 Where “CFS” is indicated as the measurement, Dr. Vredenburgh testified that it meant a large space that she “didn’t bother to measure.” Ex. 10, Vredenburgh Dep. (Jan. 24, 2011), at 125:19–130:1, App. 666–67.

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accessibility issues. Id. at 57:6–58:10, App. 688–89. Mr. Skarzenski’s methodology for property inspections was to take field measurements and apply ANSI A117.1–1986 and the Guidelines and compare his findings with the findings of the United States’ expert. Id. at 137:5–9; 214:2–4, App. 691, 696.8 Mr. Skarzenski indicated where he believed the United States’ expert misapplied the Guidelines or went beyond the safe harbors available at the time the property was built. Dkt. 86-2, Skarzenski Rep., at 1. Mr. Skarzenski also indicated where he believed a feature’s dimensions satisfy another safe harbor and should therefore be deemed accessible. Id. Mr. Skarzenski testified that where an item is not included or his reports indicate “no comment,” he was not disputing the observation or measurements taken by the United States’ expert. Ex. 12, Skarzenski Dep. (Feb. 3, 2011), at 219:13–20, 223:18–19, 281:18–282:21, App. 697–98, 699– 700.
D. Material Facts Not In Dispute The United States’ experts found significant violations of the Guidelines at 32 properties
inspected by the United States.9 The detailed undisputed conditions found at each property are contained in the chart attached as Exhibit 1. The chart describes the condition, includes the citation to the United States’ expert report for the condition, JPI’s experts’ response to the particular condition, and the reference to the portion of the FHA Guidelines or ADA standards pertaining to that condition. The United States has included only those property conditions where

8 Mr. Skarzenski testified that he uses ADAAG for assessing ADA compliance. Ex. 11, Skarzenski Dep. (Feb. 3, 2011), at 214:2–4, App. 696. 9 On February 15, 2011, the United States supplemented its interrogatory responses to inform JPI that it would not pursue claims regarding the design and construction of 12 properties that were among the 52 in this phase of discovery: Jefferson at ULM, Jefferson Commons (TTU), Virginia State University, Jefferson at Berry Street (University of Minnesota II), Clark Atlanta University (Heritage Commons), Gainesville (U of Florida), North Carolina State University (Wolfpack), Jefferson Commons – Lawrence (KU), Jefferson Commons – OSU (Stillwater II), Jefferson Commons at Star Ranch (Tuscon II), Jefferson Commons at Fresno, and Jefferson at Simi Valley. On April 15, 2011, the United States informed JPI that it would not pursue claims regarding the design and construction of eight additional properties: Jefferson Arts District, Jefferson at Washington Crossing, Jefferson at Bellingham, Providence Place, Jefferson at Logan Circle, Jefferson at Sullivan Place, Jefferson at Young Circle, and Jefferson at City Gate.

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the observation or measurement was not contested by JPI’s inspector.10 A summary of the

violations found is as follows:

Property
Jefferson at Preston Villas at Beaver Creek Jefferson on the Parkway Jefferson at Melrose Jefferson at Riverchase Jefferson at Prestonwood Hills Jefferson at Frankford Jefferson Hill
Jefferson at Mission Gate Jefferson Pines Jefferson Lakes Jefferson Canyon Jefferson Center Jefferson at Texas Street Jefferson at Founder’s Park

Requirements of the FHA, 42 U.S.C. § 3604(f)(3)(C)

Inaccessible Inaccessible Inaccessible Inaccessible Inaccessible

public and doors

route into environment kitchens and

common

and through al controls bathrooms

use areas

dwelling unit

ADA

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

10 JPI’s inspector may dispute whether the condition or measurement violates the FHA or ADA; however, the existence of the condition or measurement itself is not disputed, so the question of violation is one of law, not fact. The United States’ authority for its conclusions that the listed conditions violate the FHA and ADA is discussed in Part III, infra.

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Jefferson Park (Den Rock)

X

X

Jefferson at Pin Oak

X

X

X

X

Jefferson at King Farm

X

X

X

Congressional Village

X

X

Jefferson at Fair Oaks

X

X

X

Jefferson at Coral Square

X

X

Jefferson Summit

X

X

X

Jefferson at Morgan Falls

X

X

X

X

X

Jefferson on the River

X

X

X

X

Jefferson Farms

X

X

X

X

X

Jefferson on the Plaza

X

X

X

Jefferson at Aviara

X

Jefferson at Emerald Park

X

X

X

X

X

Jefferson at Rock Creek

X

X

Jefferson at Fox Hollow

X

X

Jefferson at Aspen Ridge

X

Jefferson at Marymoor

X

JPI selected the properties that are the subject of this phase of discovery. Dkt. 32, Supp. Joint Status Rep.; Dkt. 33, Second Supp. Joint Status Rep. There is no dispute that these properties were constructed for first occupancy after March 13, 1991. It is also undisputed that although portions of Jefferson at Preston were constructed for first occupancy prior to March 13, 1991, there are buildings at that property that were constructed for first occupancy after that date.

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Ex. 13, Def. Resp. to U.S. Interrog. No. 6, App. 702–733; Ex. 6, Motsenbocker Dep. (Jan. 26, 2011), at 159:16–161:23, App. 302.
III. ARGUMENT A. Summary Judgment Standard
Summary judgment is appropriate if the pleadings and the record, including 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 bears the initial burden of demonstrating the absence of a genuine dispute of material fact, Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986), and the court draws all reasonable inferences regarding the assertions made in a light favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The non-moving party, however, “may not rest upon the mere allegations or denials of his pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial.” Id. at 248 (citation and internal quotation marks omitted). Summary judgment must be granted if the nonmoving party has failed to make a sufficient showing on “an essential element of her case with respect to which she has the burden of proof.” Celotex, 477 U.S. at 323.
Courts routinely grant summary judgment in FHA design and construction cases where, as here, a plaintiff presents objective evidence that (1) a subject property is covered by the FHA and/or ADA; (2) the defendant is a responsible party for the design and construction of the property; and (3) the property has violations of the substantive provisions of the FHA and/or ADA, which are typically proven by observing conditions at the property, taking measurements of features at the property, and comparing those conditions and measurements to a recognized accessibility standard. See Savannah-Chatham Cnty. Fair Hous. Council v. Genesis Designer

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Homes, LLC, No. CV406-096, slip op. at 37–39 (S.D. Ga. Jan. 18, 2011) (attached as Ex. 14, App. 770–72) (finding liability where measurements made by plaintiffs’ expert were not disputed); United States v. Shanrie Co. (Shanrie II), 669 F. Supp. 2d 932, 938–39 (S.D. Ill. 2009) (finding liability where facts provided by the United States were undisputed and showed violations of the HUD Guidelines and ANSI); United States v. Tanski, No.1:04-CV-714, 2007 WL 1017020, at *16 (N.D.N.Y. Mar. 30, 2007) (noting that “defendants do not dispute the accuracy of the United States’ measurements or observations” and holding that “[t]he United States has established as a matter of law that the Tanski properties have the above-listed features and that such features violate section 3604(f)(3)(C)”).11
B. Design and Construction Requirements of the FHA In 1988, Congress amended the Fair Housing Act to require that certain multi-family
housing developments built for first use and occupancy after March 13, 1991, be designed and constructed with basic features of accessible design for persons with disabilities. See 42 U.S.C. §§ 3601–3619. The FHA requires that “covered multi-family dwellings” be designed and constructed in such a manner that:

11 See also United States v. Shanrie Co. (Shanrie I), No. 05-CV-306-DRH, 2007 WL 980418, at *10–11 (S.D. Ill. Mar. 30, 2007) (partial summary judgment granted where defendants did not dispute violations of HUD Guidelines); United States v. Taigen & Sons, Inc., 303 F. Supp. 2d 1129, 1154 (D. Idaho 2003) (where defendants “failed to submit any evidence to demonstrate the accessibility of [covered housing] is in accordance with the Fair Housing Act[,] . . . there is no genuine issue of material fact with respect to the Taigen Defendants’ liability under the Fair Housing Act.”); United States v. Quality Built Constr. (Quality Built I), 309 F. Supp. 2d 756, 763 (E.D.N.C. 2003) (summary judgment granted where defendants “have not come forward with alternative measurements or any other evidence to show that a triable issue of fact exists”); United States v. Hallmark Homes, Inc., No. CV01-432, 2003 WL 23219807, at *8 (D. Idaho Sept. 29, 2003) (finding liability where expert’s analysis showed violations of the HUD Guidelines and ANSI); Mont. Fair Hous. v. Am. Capital Dev., 81 F. Supp. 2d 1057, 1064–69 (D. Mont. 1999) (finding liability based on HUD regulations); Baltimore Neighborhoods, Inc. v. Rommel Builders, 40 F. Supp. 2d 700, 713 (D. Md. 1999) (“The Court is satisfied that plaintiffs have established all of the allegations of FHAA violations, with the exception of the lack of reinforcements in the bathrooms, as a matter of law. Defendants do not substantively dispute any of the alleged violations except the lack of reinforcements in the bathrooms.”); Baltimore Neighborhoods, Inc. v. Sterling Homes Corp., No. 96-915, 1999 WL 1068458, at *8 (D. Md. Mar. 25, 1999) (finding liability based on undisputed observations by plaintiffs’ expert and the HUD Guidelines); United States v. Richard & Milton Grant Co., No. 2:01-cv-2069, (W.D. Tenn. Apr. 27, 2004) (attached as Ex. 15, App. 784–810) (summary judgment on liability granted where defendants did not dispute violations of HUD Guidelines and failed to show compliance with alternate accessibility standards).

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(i) the public use and common use portions of such dwellings are readily accessible to and usable by handicapped persons;
(ii) all the doors designed to allow passage into and within all premises within such dwellings are sufficiently wide to allow passage by handicapped persons in wheelchairs; and
(iii) all premises within such dwellings contain the following features of adaptive design:
(I) an accessible route into and through the dwelling;
(II) light switches, electrical outlets, thermostats, and other environmental controls in accessible locations;
(III) reinforcements in bathroom walls to allow later installation of grab bars; and
(IV) usable kitchens and bathrooms such that an individual in a wheelchair can maneuver about the space.
42 U.S.C. § 3604(f)(3)(C).
The House Judiciary Committee explained that these accessibility requirements reflect “a
national commitment to end the unnecessary exclusion of persons with handicaps from the
American mainstream . . . .” and are “essential for equal access and to avoid future de facto
exclusion of persons with handicaps.” H.R. Rep. No. 711, 100th Cong., 2d Sess., at 18, 27
(1988), as reprinted in 1988 U.S.C.C.A.N. 2173. They also reflect Congress’ recognition that
unintended barriers may be just as exclusionary as intentional discrimination: “A person using a
wheelchair is just as excluded from the opportunity to live in a particular dwelling by the lack of
access into the unit and too narrow doorways as by a sign posted saying ‘No Handicapped People Allowed.’” Id. at 25.12

12 Throughout this brief, the United States uses the term “disability” instead of “handicap.” For purposes of the Act, the terms have the same meaning. See Bragdon v. Abbott, 524 U.S. 624, 631 (1998) (definition of “disability” under Americans with Disabilities Act taken almost verbatim from definition of “handicap” under Fair Housing Act); Helen L. v. DiDario, 46 F.3d 325, 330 n.8 (3d Cir. 1995) (“The change in nomenclature from ‘handicap’ to ‘disability’ reflects Congress’ awareness that individuals with disabilities find the term ‘handicapped’ objectionable.”).

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Congress made clear that the accessibility requirements of the FHA are to be in place at
the time a covered dwelling is ready for first occupancy:
Because persons with mobility impairments need to be able to get into and around a dwelling unit (or else they are in effect excluded because of their handicap), the bill requires that in the future covered multifamily dwellings be accessible and adaptable.[13] This means that the doors and hallways must be wide enough to accommodate wheelchairs, switches and other controls must be in convenient locations, most rooms and spaces must be on an accessible route, and disabled persons should be able to easily make additional accommodations if needed, such as installing grab bars in the bathroom, without major renovation or structural change. These modest requirements will be incorporated into the design of new buildings, resulting in features which do not look unusual and will not add significant additional costs.
Id. at 18 (emphasis added). See also 42 U.S.C. § 3604(f)(3)(C). As one court observed:
The purpose of the accessibility requirements in the [Fair Housing Act] was to prevent discrimination against persons with disabilities. Unlike some other forms of discrimination, the built environment itself creates a barrier to equal access for persons with mobility impairments, which may be difficult or costly to fix down the road. The only way to prevent such discrimination, therefore, is through careful consideration—during the early stages of design—of accessibility concerns.
Shanrie I, 2007 WL 980418, at *5 (S.D. Ill. Mar. 30, 2007).
At the time Congress passed the amendments to the FHA, the American National
Standards Institute (“ANSI”), a non-profit organization that promotes the development of
voluntary standards in a variety of fields and industries, had a committee dedicated to developing
accessibility standards for construction (the A117.1 committee), with the most recent standard at

13 The use of the terms “adaptive” or “adaptable” in both the statute and the legislative history in no way modifies the requirement that all the features required by the FHA be in place at the time of first occupancy. The concept of adaptive design was well recognized at the time the FHA amendments were passed. The FHA was not intended to provide total accessibility, but rather is based on a standard of adaptable design, which “provide[s] usable housing for handicapped persons without necessarily being significantly different from conventional housing.” H.R. Rep. No. 711 at 26. With these basic features of accessibility in place, a disabled person can make further modifications to address his or her particular needs, as provided for by the reasonable modification provisions of the FHA. 42 U.S.C. § 3604(f)(3)(A). See Mont. Fair Hous., 81 F. Supp. 2d at 1065 (rejecting defendants’ interpretation of the term “adaptive” as allowing listed FHA features to be added through future remodeling and adopting plaintiffs’ definition—“design appropriate for use by persons of all abilities without modification”—as the proper interpretation under the FHA).

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the time of enactment being published in 1986.14 In the FHA, Congress specifically stated that
compliance with the American National Standard for Buildings and Facilities – Providing
Accessibility and Usability for Physically Handicapped People, ANSI A117.1, “suffices to
satisfy the requirements of paragraph (3)(C)(iii),” 42 U.S.C. § 3604(f)(4), thus making the ANSI
A117.1 standard a “safe harbor” for compliance with the FHA. In addition to providing the
ANSI standard as a safe harbor for compliance, the statute requires HUD to “provide technical
assistance to States and units of local government and other persons to implement” the design
and construction requirements provided in § 3604(f)(3)(C). 42 U.S.C. § 3604(f)(5)(C). The
statute also empowers HUD to issue regulations to implement the FHA. 42 U.S.C. § 3614a; see also 42 U.S.C. § 3601 note, Pub. L. No. 100-430, § 13(b) (requiring HUD to issue rules to implement the FHA amendments no later than 180 days after enactment).
Pursuant to its authority to issue regulations and provide technical assistance, on January
23, 1989, HUD issued final rules to implement and enforce the FHA amendments, including the
provisions regarding accessible design and construction. 54 Fed. Reg. 3232, 3243–52 (Jan. 23,
1989) (codified at 24 C.F.R. §§ 100.200–205). On June 15, 1990, HUD published the proposed Fair Housing Accessibility Guidelines (“Guidelines”) for notice and comment.15 55 Fed. Reg.
24370–24487. HUD received comments to the proposed Guidelines from builders, architects,
industry representatives, disability advocacy organizations, and accessibility experts. Guidelines,
56 Fed. Reg. at 9475. On March 6, 1991, HUD issued the final Guidelines. 56 Fed. Reg. 9472–
14 Published since 1961, the ICC/ANSI A117.1 Accessible and Usable Buildings and Facilities is a nationally recognized standard of technical requirements for making buildings accessible. The International Code Council (“ICC”) and its precursor organization, the Council of American Building Officials (“CABO”), have been responsible for the document since 1987. The ICC/ANSI A117.1 is developed through a public hearing and deliberative process supervised by ANSI. The document is on a five-year cycle for development. See http://www.iccsafe.org/safety/Pages/accessibility-1.aspx#a117/ (last visited Apr. 15, 2011). 15 At the time the proposed Guidelines were published, HUD recognized that there may be properties in various stages of construction that would be completed after March 13, 1991, and would thus be covered by the design and construction provisions of the FHA. Accordingly, HUD indicated that builders and designers of projects under construction could rely on the proposed Guidelines for compliance with the FHA. 55 Fed. Reg. at 24371.

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9515. The Guidelines are a safe harbor for compliance and “provide technical guidance on designing dwelling units as required by the Fair Housing Amendments Act of 1988.” Id. at 9499.
HUD’s Guidelines provide detailed specifications for each feature covered by the FHA, such as specific heights for thresholds and whether and at what degree those thresholds must be beveled, maximum slopes and cross-slopes along accessible routes and on ramps, the amount of clear space necessary for a person in a wheelchair to use a kitchen or bathroom, and maximum and minimum heights for lights, outlets, and environmental controls. Id. at 9503–9515. On June 28, 1994, HUD supplemented the Guidelines by issuing explanatory questions and answers about the Guidelines. 24 C.F.R. ch. I, subch. A, app. IV; 59 Fed. Reg. 33362–63 (attached as Ex. 8, App. 633–47). HUD has stated that the Guidelines are intended to prescribe “minimum standards of compliance with the specific accessibility requirements of the Act.” Guidelines, 56 Fed. Reg. at 9476.
In addition to the Guidelines,16 HUD has issued regulations recognizing nine other accessibility standards as safe harbors for demonstrating compliance with the FHA’s accessibility requirements. Each safe harbor has been carefully reviewed by HUD to ensure that it provides at least the same level of accessibility as required by the FHA, the HUD regulations, and the Guidelines. See Design and Construction Requirements; Compliance With ANSI A117.1 Standards, 72 Fed. Reg. 39540, 39541 (Jul. 18, 2007).17 These safe harbors are objective

16 The HUD-recognized safe harbor includes the Guidelines and the explanatory Q&A’s published in 1994. 24 C.F.R. § 100.205(e)(2)(i). Although a builder or designer would not have had the benefit of the Q&A’s prior to 1994, the Q&A’s are still persuasive evidence of HUD’s interpretation of the Guidelines even prior to 1994, and are intended to clarify the specifications set forth in the Guidelines. See 59 Fed. Reg. at 33362. 17 The other nine safe harbors are: (1) HUD’s Fair Housing Act Design Manual (“Design Manual”) (attached as Ex. 8, App. 315–648), (2) ANSI A117.1 (1986) (read in conjunction with the FHA, HUD’s regulations, and the Guidelines); (3) CABO/ANSI A117.1 (1992) (read in conjunction with the FHA, HUD’s regulations, and the Guidelines); (4) ICC/ANSI A117.1 (1998) (read in conjunction with the FHA, HUD’s regulations, and the Guidelines); (5) Code Requirements for Housing Accessibility 2000 (“CRHA”); (6) International Building Code 2000, as amended by the 2001 Supplement to the International Codes; (7) International Building Code 2003, with one condition; (8) ICC/ANSI A117.1 (2003) (read in conjunction with the FHA, HUD’s regulations, and the

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measures of accessibility that developers can follow to be fully compliant with the FHA. See
Design and Construction Requirements; Compliance With ANSI A117.1 Standards; Final Rule,
73 Fed. Reg. 63610, 63614 (Oct. 24, 2008). Although compliance with any one of the safe
harbors is not mandatory,18 HUD has made clear that designers and builders who do not fully
comply with a safe harbor bear the burden of demonstrating that a property provides at least the
minimum level of accessibility required by the FHA, as set forth in the Guidelines. As recently
as October 2008, HUD restated the standard for a prima facie showing by a plaintiff in a design
and construction case:
In enforcing the design and construction requirements of the Fair Housing Act, a prima facie case may be established by proving a violation of HUD’s Fair Housing Accessibility Guidelines. This prima facie case may be rebutted by demonstrating compliance with a recognized, comparable, objective measure of accessibility. . . . In making a determination as to whether the design and construction requirements of the Fair Housing Act have been violated, HUD uses the Fair Housing Act, the regulations, and the Guidelines, all of which reference the technical standards found in ANSI A117.1–1986.
73 Fed. Reg. at 63614 (emphasis added).19 In 2006, the HUD Secretary overruled a HUD
administrative law judge’s finding that, because the Guidelines were not mandatory, they could
not be used to prove a violation of the design and construction provisions of the FHA. HUD v.
Nelson, No. 05-068FH, 2006 WL 4540542, at *5 (Sep. 21, 2006), aff’d, 320 F. App’x 635 (9th
Guidelines); and (9) International Building Code 2006, with the January 31, 2007 Errata. See 24 C.F.R. § 100.205(e); 73 Fed. Reg. at 63610–16. 18 56 Fed. Reg. at 9499 (developers may “seek alternative ways to demonstrate that they have met the requirements of” the FHA); see also Final Report of HUD Review of Model Building Codes, 65 Fed. Reg. 15740, 15756–57 (Mar. 23, 2000). 19 HUD has also made clear that designers and builders who selectively choose among the provisions of the different safe harbor standards rather than following one safe harbor in its entirety bear a similar burden:
The benefit of safe harbor status may be lost if, for example, a designer or builder chooses to select provisions from more than one of the . . . safe harbor documents or from a variety of sources . . . . A designer or builder taking this approach runs the risk of building an inaccessible property. . . . [D]esigners and builders that choose to depart from the provisions of a specific safe harbor bear the burden of demonstrating that their actions result in compliance with the Act’s design and construction requirements.
72 Fed. Reg. at 39438; 73 Fed. Reg. at 63614.

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Cir. 2009). The HUD Secretary found that the charging party had proven that the respondent had violated the FHA where the charging party provided uncontested evidence of violations of the Guidelines and respondents had failed to show that its property met a “comparable objective accessibility standard.” Id. at *6–8.
Courts have recognized and adopted the burden-shifting standard in design and construction cases. See Fair Hous. Council, Inc. v. Vill. of Olde St. Andrews, Inc. (Olde St. Andrews II), No. 3:98-CV-630, slip op. at 8 (W.D. Ky. June 18, 2003) (Ex. 16, App. 818) (“[O]nce Plaintiffs have shown that a construction feature does not meet the Guidelines, Defendants undoubtedly face a heavy burden of demonstrating accessibility.”), aff’d, 210 F. App’x 469, 481–82 (6th Cir. 2006); Tanski, 2007 WL 1017020, at *11 (“Courts have held that summary judgment on the issue of design-and-construction discrimination is appropriate where plaintiff demonstrates that a covered dwelling does not comply with the ANSI standards or the HUD Guidelines, and defendants fail to submit evidence that the property complies with any other accessibility standard.” (citing Taigen, 303 F. Supp. 2d at 1154; Quality Built I, 309 F. Supp. 2d at 763)).
Any alternative means used by designers or builders to demonstrate compliance with the FHA must be evaluated and held to the same strict standard as the safe harbors. As HUD has emphasized, any alternative to the safe harbors must be a “recognized, comparable, objective measure of accessibility.” 73 Fed. Reg. at 63614. HUD’s interpretation is reasonable, given the specific inclusion of ANSI A117.1 in the statute. Although Congress did not intend for the ANSI standard to be the only means of compliance, it recognized the value of accessibility standards. See H.R. Rep. No. 711, at 27 (“there may be other local or state standards with which compliance is required or there may be other creative methods of meeting these standards”)

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(emphasis added). The need to demonstrate compliance using an objective, comparable standard
has been HUD’s consistent policy since the passage of the implementing regulations in 1989, as
evidenced by HUD’s reference to compliance using “ANSI A117.1–1986 or a comparable
standard” in the regulations. 24 C.F.R. § 100.201 (1989) (emphasis added); see also Guidelines,
56 Fed. Reg. at 9479 (“builders and developers may follow alternative standards that achieve
compliance with the Act’s accessibility requirements”) (emphasis added). As noted above, the
HUD Secretary’s decision in Nelson, affirmed by the Ninth Circuit, and HUD’s comments in
connection with the passage of the 2008 final rule, reaffirm the need to rely on objective
standards to determine compliance. 2006 WL 4540542, at *6; 73 Fed. Reg. at 63614.
Furthermore, HUD’s recognition of safe harbors in addition to the ANSI standard as objective
measures of compliance accords directly with Congress’s intent.
Courts have also recognized the need for reliance on objective standards for determining
compliance. In Tanski, rather than rely on an objective standard, the defendants sought to
introduce evidence, in the form of declarations from residents, that there were disabled persons
living at defendants’ properties who did not have difficulty using the various features alleged to
violate the FHA. 2007 WL 1017020, at *14. In rejecting this evidence, the court stated:
The Court agrees with the United States that these wholly subjective declarations are not probative on the question of whether the apartments are designed and constructed such that they comply with the requirements of section 3604(f)(3)(C). No reasonable reading of the section supports the view that the Fair Housing Act’s requirements may be met by satisfying the accessibility needs of a particular handicapped individual. Rather, a plain reading of section 3604(f)(3)(C) demonstrates that it requires compliance with an objective accessibility standard broadly applicable to handicapped people. The section requires that covered dwellings be “designed and constructed” such that the public use and common use areas be “readily accessible to and usable by handicapped persons”; that all doors be sufficiently wide “to allow passage by handicapped persons in wheelchairs”; and all premises in the dwelling contain specified “features of adaptive design” such as “accessible” routes into and through the dwellings, environmental controls in “accessible locations,” and “usable” kitchens and bathrooms. The

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Court’s reading of the statute as requiring compliance with a broadly applicable objective accessibility standard is reinforced by the provision in section 3604(f)(4) that the requirements of section 3604(f)(3)(C)(iii) may be satisfied by compliance with the appropriate ANSI requirements. Id. See also Nelson, 2006 WL 4540542, at *6–7 (overruling ALJ’s determination that evidence showing that two disabled persons could navigate the property was sufficient to show property was accessible because it did not meet the requirements of a comparable standard); Grant, No. 01-2069, slip op. at 8 (Ex. 15, App. 791) (“If a construction feature does not comply with the Guidelines, then the housing provider defending an FHA violation has the burden of showing that the feature is nonetheless accessible . . . by meeting a ‘comparable standard’—i.e., one that provides ‘access essentially equivalent to or greater than required by ANSI A117.1.’”) (citation omitted); United States v. Quality Built Constr. (Quality Built II), 309 F. Supp. 2d 767, 772 n.1 (E.D.N.C. 2003) (“Whether one disabled person may be able to maneuver through the complex and units does not indicate compliance with the Act.”).
C. HUD’s Interpretation of the FHA Is Entitled to Deference HUD’s interpretation of the FHA, contained in its regulations and in the Guidelines, is
entitled to great deference. It is well settled that, when an agency exercises the authority delegated to it to issue regulations with the force of law, the agency’s interpretations of the statute that confers such authority are entitled to substantial deference. See United States v. Mead Corp., 533 U.S. 218, 226–27 (2001); Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842–45 (1984). Under Chevron, courts “ordinarily defer to an administering agency’s reasonable interpretation of a statute.” Meyer v. Holley, 537 U.S. 280, 287 (2003) (deferring to HUD’s interpretation of the FHA). Therefore, “if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute, . . . [and courts] have long recognized that

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considerable weight should be accorded to an executive department’s construction of a statutory scheme it is entrusted to administer.” Chevron, 467 U.S. at 843–44.
HUD’s regulations, including the Guidelines, are entitled to Chevron deference because (1) Congress expressly delegated to HUD the authority to issue regulations and technical guidance; (2) the Guidelines set forth requirements that have the force of law; and (3) to the extent any ambiguity exists in the statutory requirements, the regulations and the Guidelines reasonably interpret those requirements. See Mead, 533 U.S. at 226–27. Thus, for example, in Village of Olde St. Andrews, the court concluded that it should defer to the Guidelines’ interpretation of the FHA. Olde St. Andrews I, 250 F. Supp. 2d 706, 717 & n.9 (W.D. Ky. 2003); see also Shanrie I, 2007 WL 980418, at *5 (holding that HUD’s interpretation of the FHA in the Guidelines is entitled to Chevron deference); United States v. Edward Rose & Sons, 246 F. Supp. 2d 744, 751–53 (E.D. Mich. 2003) (giving deference to HUD’s interpretation of the Act’s design and construction requirements as set forth in the proposed regulations, the Guidelines, and the Design Manual), aff’d, 384 F.3d 258 (6th Cir. 2004) (giving deference to HUD regulations).20 Indeed, not only do the Guidelines represent the “minimum standards of compliance,” Guidelines, 56 Fed. Reg. at 9476, but they also provide precise instructions for what is necessary to make a feature accessible under the FHA.

20 Alternatively, HUD’s Guidelines are entitled to an even greater level of deference than Chevron deference, as they interpret the 1989 HUD regulations that implemented the FHA. See Long Island Care At Home, Ltd. v. Coke, 551 U.S. 158, 171 (2007) (“agency’s interpretation of its own regulations is controlling unless plainly erroneous or inconsistent with the regulations being interpreted”) (internal quotation marks omitted); Auer v. Robbins, 519 U.S. 452, 461–63 (1997); Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994); Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945) (similar); 65 Fed. Reg. at 15763 (“The Guidelines set forth specifications to implement the requirements of 24 C.F.R. 100.205(a) that all covered multi-family dwellings shall be designed and constructed to have at least one building entrance on an accessible route, unless it is impractical to do so because of terrain or unusual characteristics of the site.”); 65 Fed. Reg. at 15766 (the Guidelines “set[] forth technical criteria [for kitchens and bathrooms] to meet” the requirements of the FHA and the regulations); 65 Fed. Reg. at 15770 (“The Guidelines specify seven requirements relating to accessibility which reflect the language of the [Fair Housing] Act and the regulations.”).

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HUD’s consistent interpretation that compliance with the design and construction provisions of the FHA requires adherence to an objective standard is entitled to Chevron deference. See supra Part III.C. Additionally, courts have deferred to HUD’s interpretation that a violation of the FHA can be proven by showing that a property does not meet the requirements of the Guidelines or other safe harbor, and if it does not, requiring a designer or builder to show that a property meets a comparable objective standard. This reasonable interpretation is also entitled to deference. See supra Part III.C; 73 Fed. Reg. at 63614; Nelson, 2006 WL 4540542, at *2.
D. JPI’s Properties are Covered Dwellings Under the FHA The FHA accessibility requirements apply to “covered multifamily dwellings [designed
and constructed] for first occupancy” after March 13, 1991. 42 U.S.C. § 3604(f)(3)(C). The term “covered multifamily dwellings” is defined as (a) buildings consisting of four or more units if such buildings have one or more elevators and (b) ground floor units in other buildings consisting of four or more units. 42 U.S.C. § 3604(f)(7); see also 24 C.F.R. § 100.205(d). Thus, in an elevator building with four or more units, all units must comply with the FHA, while in a non-elevator building with four or more units, such as many garden-style buildings, only the ground floor units (and the attendant public and common use areas) must comply.21
As noted in Part II.D, supra, there is no dispute that 31 of the 32 properties at issue in this motion were constructed for first occupancy after March 13, 1991, and portions of Jefferson at Preston are also covered.

21 As HUD has clearly stated, the definition of “ground floor” is any floor on which there is a building accessible entrance on an accessible route. As a result, a building may include more than one qualifying “ground floor.” 24 C.F.R. § 100.201; Guidelines, 56 Fed. Reg. at 9500. In addition, where the first floor containing dwelling units is above grade, all units on that floor must be served by a building entrance on an accessible route, and that floor will be considered a “ground floor.” Guidelines, 56 Fed. Reg. at 9500.

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E. JPI’s Properties Contain Inaccessible Features in Violation of the FHA, HUD’s Regulations, and the Guidelines Covered dwellings must comply with the six22 accessibility requirements set forth in the
FHA. 42 U.S.C. § 3604(f)(3)(C).23 The United States’ experts surveyed each property at issue in
this motion to determine compliance with the FHA, HUD’s regulations, and the Guidelines. The
discussion below outlines the requirements of each FHA accessibility provision and includes the
undisputed conditions observed at each property, as listed in Exhibit 1, that violate that
provision. Exhibit 1 is not a complete list of the violations at JPI’s properties. The complete lists
of violations at each property are detailed in the United States’ expert reports. For purposes of
summary judgment, however, the United States is identifying only those conditions that are
either undisputed by JPI’s inspectors or are so egregious when compared to the standard
provided by the Guidelines that they cannot be legitimately explained by other purported
defenses, such as wear and tear, construction “tolerances,” or environmental conditions.
1. Accessible public and common use areas, 42 U.S.C. § 3604(f)(3)(C)(i) Covered dwelling units must be constructed in a manner that “the public use and common
use portions of such dwellings are readily accessible to and usable by [disabled] persons.” 42
U.S.C. § 3604(f)(3)(C)(i); 24 C.F.R. § 100.205(c)(1). HUD has defined an “accessible” public
and common use area as one that “can be approached, entered, and used by individuals with
physical disabilities. The phrase ‘readily accessible to and usable by’ is synonymous with
accessible.” 24 C.F.R. § 100.201; Guidelines, 56 Fed. Reg. at 9499. An accessible public and
common use area is one that “complies with the appropriate requirements of ANSI A117.1–
22 The FHA is often referred to as having seven requirements, which is based on the fact that there are seven requirements listed in the Guidelines. Requirement 1 of the Guidelines deals with site impracticality and the determination of whether a unit is a covered dwelling unit. If a dwelling unit is determined to be covered under Requirement 1, that triggers the requirement to include the six accessibility features listed in the FHA and set out as Requirements 2 through 7 of the Guidelines. 23 The United States has not alleged violations of the requirement for reinforcements in bathroom walls to allow later installation of grab bars, 42 U.S.C. § 3604(f)(3)(C)(iii)(III), and therefore it is not a subject of this motion.

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1986, a comparable standard or these guidelines.” Guidelines, 56 Fed. Reg. at 9499; see also 24 C.F.R. § 100.201 (updated to include additional ANSI standards). The Guidelines Requirement 2 lists the basic components of accessible and usable public and common use areas, which fall under two basic requirements: (1) accessible routes to and within public and common use areas, and (2) accessible public and common use facilities. Guidelines, 56 Fed. Reg. at 9504–05. The Guidelines specify that, except where indicated, the public and common use areas must comply with the appropriate section of the ANSI standard. Id.
a. Accessible routes HUD has defined an “accessible route” as “a continuous unobstructed path connecting accessible elements and spaces in a building or within a site that can be negotiated by a person with a severe disability using a wheelchair and that is also safe for and usable by people with other disabilities.” 24 C.F.R. § 100.201; Guidelines, 56 Fed. Reg. at 9499. HUD has further defined “accessible route” as “a route that complies with the appropriate requirements of ANSI 117.1–1986, a comparable standard, or Section 5, Requirement 1 of these guidelines.” Guidelines, 56 Fed. Reg. at 9499. Accessible routes can include corridors, floors, parking access aisles, curb ramps, walks, and ramps. 24 C.F.R. § 100.201; Guidelines, 56 Fed. Reg. at 9499. Accessible routes must be provided “from public transportation stops, accessible parking spaces, accessible passenger loading zones, and public streets or sidewalks to accessible building entrances.” Guidelines, 56 Fed. Reg. at 9505. Accessible routes must connect “accessible buildings, facilities, elements and spaces that are on the same site.” Id. Accessible routes must also connect “accessible building and facility entrances with accessible spaces and elements within the building or facility, including adaptable dwelling units.” Id. Elements of accessible routes that must be given careful attention include: width of route, slope of route, cross-slope,

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surface texture of ground and floor surfaces, curb ramps, headroom, and protruding objects. Guidelines, 56 Fed. Reg. at 9505; Ex. 8, Design Manual at 1.6, App. 351.24 For example, slopes steeper than 8.33%, or 1:12, are not usable by many people with disabilities and cannot be considered part of an accessible route. Guidelines, 56 Fed. Reg. at 9505; Ex. 8, Design Manual at 1.7, App. 352. “Stairs shall not be part of an accessible route.” Ex. 17, ANSI A117.1–1986 4.3.8, App. 852.
The only exception to the requirement for accessible pedestrian routes is where “site or legal constraints prevent a route accessible to wheelchair users between covered multi-family dwellings and public or common-use facilities elsewhere on the site.” Guidelines (Req. 2), 56 Fed. Reg. at 9505 (emphasis added). To qualify for the exception, the conditions must meet the vehicular exception test set out in Requirement 1 of the Guidelines: the slope of the finished grade between covered dwellings and the public or common use facility must exceed 8.33%, or other physical barriers or legal constraints outside the control of the owner must prevent installation of an accessible pedestrian route. Guidelines (Req. 1(5)), 56 Fed. Reg. at 9504. In such cases, access may be provided via a vehicular route as long as necessary elements, such as parking and curb ramps, are provided at the public and common use facility. Id. HUD explained its creation of this exception in the Guidelines by stating that “[w]ith respect to access via a vehicular route, the Department’s expectation is that public and common use facilities generally will be on an accessible pedestrian route. The Department, however, recognizes that there may

24 The Design Manual, which “explains the application of the Guidelines to all aspects of multi-family housing projects,” Ex. 8, at 2, App. 322, is entitled to Skidmore deference. Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944); see also Olde St. Andrews I, 250 F. Supp. 2d at 717 n.9; Paralyzed Veterans of America v. D.C. Arena, L.P., 117 F.3d. 579 ( D.C. Cir. 1997) (giving deference to reasonable interpretation of regulation in technical assistance manual not subject to notice and comment). The Design Manual is persuasive because it reflects the careful, exhaustive, and persuasive analysis of HUD, the agency that has the responsibility to implement the FHA and great expertise in interpreting and enforcing it.

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be situations in which an accessible pedestrian route is not practical, because of factors beyond the control of the owner.” Guidelines, 56 Fed. Reg. at 9485 (emphasis added).
HUD has emphasized that developers cannot claim “an exemption from the obligation to build accessible pedestrian routes by merely planning for or constructing routes with running slopes in excess of 8.33%. Such an interpretation would produce a result that is inconsistent with the requirements of the Act and Guidelines.” Final Report of HUD Review of the Fair Housing Accessibility Requirements in the 2003 International Building Code, 70 Fed. Reg. 9738, 9744 (Feb. 28, 2005). It is clear that the uncontrollable factors must prevent the creation of an accessible pedestrian route, and the exception may not be used merely at the discretion of the owner, designer, or builder. As noted above, exceptions must be narrowly construed, and the burden is on JPI to show that the vehicular exception test has been met. See Grant, No. 01-2069, slip op. at 11–14 (Ex. 15, App. 794–97) (“Since the vehicular exemption is an exception to the FHA, Defendants bear the burden of showing that the property was so fraught with obstacles as to prevent the construction of accessible pedestrian routes.”). JPI cannot meet this burden.25
JPI’s properties contain violations of the requirement for accessible routes as follows: 1. At 24 properties, continuous accessible pedestrian routes are not provided to some
dwelling units and public and common use areas or require the user to travel in the vehicular drive. Ex. 1, Items 1–62, 147, 421, App. 3–19, 37, 98. 2. At 27 properties, required accessible routes have running slopes at or greater than 10% and/or cross-slopes at or greater than 6%, significantly exceeding the 5% slope

25 James Knight, a civil engineer identified as an expert by JPI, testified that the vehicular exception could be used only where there were site constraints. Ex. 18, Knight Dep. (Feb. 12, 2011), at 97:3–20, App. 917. He also testified that an accessible pedestrian route could not include the vehicular way. Id. at 109:6–14, App. 918.

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and 2% cross-slope limits,26 respectively, of the Guidelines, 56 Fed. Reg. at 9505, and ANSI 4.3.7, Ex. 17, App. 852. Ex. 1, Items 63–146, 207–12, 289–94, App. 19–37, 48–49 68–69. 3. At two properties, required accessible routes have ramps with slopes at or greater than 12%, significantly exceeding the 8.33% limit of the Guidelines, 56 Fed. Reg. at 9505, and ANSI 4.8.2, Ex. 17, App. 861. Ex. 1, Items 148–49, App. 37–38. 4. At 21 properties, required accessible routes have curb ramps with slopes at or greater than 12% and/or cross-slopes at or greater than 6%, significantly exceeding the 8.33% and 2% limits, respectively, of the Guidelines, 56 Fed. Reg. at 9505, and ANSI 4.7.2 and 4.3.7, Ex. _17, App. 860, 852. Ex. 1, Items 150–212, App. 38–49. 5. At 23 properties, required accessible routes have steps, curbs, or abrupt level changes significantly exceeding the ¼-inch or ½-inch (beveled) limit of the Guidelines, with no ramps provided or curb ramps that are blocked in violation of the Guidelines, 56 Fed. Reg. at 9505, and ANSI 4.3.8. and 4.5.2, Ex. 17, App. 852, 859. Ex. 1, Items 62, 213–98, App. 19, 49–70. 6. At two properties, required accessible routes are at or less than 30 inches wide, significantly less than the 36-inch minimum of the Guidelines, 56 Fed. Reg. at 9505, and ANSI 4.3.3, Ex. 17, App. 852. Ex. 1, Items 299–300, App. 70. 7. At eight properties, thresholds at doorways in the public and common use areas have an abrupt level change at or greater than 1 inch, significantly higher than the ½-inch

26 Running slopes greater than 5% (or 8.33% for ramps) and cross-slopes greater than 2% are violations if they occur at any point on the accessible route. Nowhere in the Guidelines or ANSI does it suggest that excess slopes and crossslopes are compliant if they occur only for a certain distance or if the “average” of the slope falls within the standard. See Ex. 17, ANSI 4.3.7, App. 852 (“Nowhere shall the cross slope of an accessible route exceed 1:50.”); ANSI 4.8.2, App. 861 (“The maximum slope of a ramp in new construction shall be 1:12.”).

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beveled limit of the Guidelines, 56 Fed. Reg. at 9505, and ANSI 4.13.8, Ex. 17, App. 874. Ex. 1, Items 298, 301–08, 352, App. 70–72, 83. 8. At seven properties, maneuvering clearance at doors to the public and common use areas is sloped at least 4%, significantly greater than the Guidelines requirement for level maneuvering clearance at doors, 56 Fed. Reg. at 9505, and ANSI 4.13.6, Ex. 17, App. 871. Ex. 1, Items 309–17, App. 73–74. 9. At 12 properties, maneuvering clearance at doors to covered dwelling unit entrances is sloped at least 4%, significantly greater than the Guidelines requirement for level maneuvering clearance at doors, 56 Fed. Reg. at 9505, and ANSI 4.13.6, Ex. 17, App. 871. Ex. 1, Items 318–32, App. 75–78. 10. At 13 properties, pull-side maneuvering clearance at doors and gates in the public and common use areas is at or less than 12 inches, significantly less than the 18-inch minimum in the Guidelines, 56 Fed. Reg. at 9505, and ANSI 4.13.6 & Fig. 25(a), Ex. 17, App. 871. Ex. 1, Items 333–52, App. 79–83. 11. At 22 properties, doors or gates in public and common use areas have no reachable hardware or have hardware that requires tight grasping, tight pinching, or twisting of the wrists to operate, in violation of the Guidelines, 56 Fed. Reg. at 9505, and ANSI 4.13.9, Ex. 17, App. 874. Ex. 1, Items 351, 353–81, App. 83–89. 12. At four properties, primary entry doors to covered units have hardware that requires tight grasping, tight pinching, or twisting of the wrists to operate, in violation of the Guidelines, 56 Fed. Reg. at 9505, and ANSI 4.13.9, Ex. 17, App. 874. Ex. 1, Items 383–86, App. 89–90.

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b. Accessible public and common use facilities Public and common use areas that must be accessible include parking, corridors, rental offices, trash rooms, clubhouses, common toilet rooms, laundry rooms, and common use tenant storage rooms. Guidelines (Req. 2), 56 Fed. Reg. at 9505; Ex. 8, Design Manual at 2.3, App. 406. Where more than one public or common use facility is provided at a site, such as multiple swimming pools, at least one facility must be accessible. Guidelines (Req. 2), 56 Fed. Reg. at 9505. Where more than one fixture in a room is provided, such as in toilet rooms or bathing facilities provided for public or common use, at least one fixture of each type must be accessible per room. Id.; ANSI 4.22.4, App. 886. JPI’s properties contain violations of the requirement for accessible public and common use areas as follows: 1. At 13 properties, the unprotected underside of stairways protrude into the path of
travel and no cane-detectible barriers are provided to allow visually impaired persons to safely navigate the route as provided by the Guidelines, 56 Fed. Reg. at 9505, and ANSI 4.4.1–2 & Fig. 8(d), Ex. 17, App. 852, 857. Protruding objects need not be on the accessible route to be a violation. Ex. 17, App. 852, ANSI 4.4.1. Ex. 1, Items 387–402, App. 90–94. 2. At 17 properties, accessible parking is not provided or is noncompliant because there is no access aisle, the access aisle has running slopes at 10% or greater or cross-slopes at 6% or greater, or the access aisle is significantly less than the 60-inch minimum of the Guidelines, 56 Fed. Reg. at 9505, and ANSI 4.6, Ex. 17, App. 859–60. Ex. 1, Items 147, 403–22, App. 37, 94–98.

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3. At nine properties, the common use garages have an interior width less than 12 feet, significantly less than the 14-foot, 2-inch requirement of the Guidelines, Q&A 14(c), Ex. 8, App. 643. It is also significantly less than the 13-foot total width of an accessible parking space plus access aisle provided for in ANSI 4.6, Ex. 17, App. 859–60. Ex. 1, Items 422, 429–36, App. 98–101.
4. At eight properties, there are violations in the common use bathrooms such as lack of adequate clear floor space, lack of grab bars, a curb at the shower door that is too high, and controls that required tight grasping, tight pinching, or twisting of the wrists to operate, in violation of the Guidelines, 56 Fed. Reg. at 9505, and ANSI 4.16, 4.19, 4.21, 4.22, Ex. 17, App. 876–81, 884–86. Ex. 1, Items 437–45, App. 101–02.
2. Usable doors, 42 U.S.C. § 3604(f)(3)(C)(ii) The FHA requires that “all the doors designed to allow passage into and within all premises within such dwellings [must be] sufficiently wide to allow passage by handicapped persons in wheelchairs.” 42 U.S.C. § 3604(f)(3)(C)(ii); 24 C.F.R. § 100.205(c)(2). Interior dwelling unit doors meet this requirement if they provide “nominal” 32 inches of clear width, which allows a variance of ¼ to ⅜ inches. Guidelines (Req. 3), 56 Fed. Reg. at 9506; Ex. 8, Design Manual at 3.5, App. 439. Failure to provide doors that meet these specifications violates the Act. Grant, No. 01-2069, slip op. at 19–20 (Ex. 15, App. 802–03); Quality Built I, 309 F. Supp. 2d at 763–64; Quality Built II, 309 F. Supp. 2d at 775–76; Rommel Builders, 40 F. Supp. 2d at 713–14; Sterling Homes, 1999 WL 1068458, at *4; HUD v. Perland Corp., No. 05-961517 8, 1998 WL 142159, at *5, 7 (HUDALJ Mar. 30, 1998). At 11 properties, interior dwelling unit doors designed for user passage have clear widths at 30 inches or less. Ex. 1, Items 446–67, App. 102–110.

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3. Accessible route into and through a dwelling, 42 U.S.C. § 3604(f)(3)(C)(iii)(I) The Act requires that for all covered units there be “an accessible route into and through the dwelling.” 42 U.S.C. § 3604(f)(3)(C)(iii)(I); 24 C.F.R. § 100.205(c)(3)(i). An accessible route is “a continuous unobstructed path connecting accessible elements and spaces . . . that can be negotiated by a person with a severe disability using a wheelchair and that is also safe for and usable by people with other disabilities.” 24 C.F.R. § 100.201. This means that the accessible route must be (1) sufficiently wide and (2) lacking in abrupt changes in level so residents with disabilities can safely use all rooms and spaces. Ex. 8, Design Manual at 4.3, App. 452. For example, recognizing that persons with disabilities may trip and cannot readily roll over or negotiate paths that have barriers such as steps or high thresholds, the Guidelines limit the height of these barriers and/or require that they be ramped. On an accessible route, thresholds or other changes in level between ¼-inch and ½-inch must be beveled and all changes in level above ½inch must be ramped. Thresholds at the primary entrance door must be ¾-inch or less and beveled. Guidelines (Req. 4), 56 Fed. Reg. at 9507. JPI’s properties contain violations of the requirement for an accessible route into and through the dwelling unit as follows: 1. At four properties, thresholds at the exterior of unit entry doors are at or greater than
1 inch high and are not beveled or sloped, which does not meet the ½-inch or ¾-inch beveled limit of the Guidelines, 56 Fed. Reg. at 9507. They also do not meet the 1 ¼inch sloped permissible limit of the Design Manual, at 4.12, App. 461. Ex. 1, Items 468–72, App. 110–11. 2. At one property, thresholds at the interior of unit entry doors are at or greater than 1 inch high, significantly higher than the ½-inch requirement of the Guidelines, 56 Fed.

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Reg. at 9507, and also higher than the ¾-inch permissible limit of the Design Manual, at 4.12, App. 461. Ex. 1, Item 469, App. 110.
4. Light switches, electrical outlets, thermostats, and other environmental controls in accessible locations, 42 U.S.C. § 3604(f)(3)(C)(iii)(II)
The FHA requires “light switches, electrical outlets, thermostats, and other environmental controls in accessible locations.” 42 U.S.C. § 3604(f)(3)(C)(iii)(II); 24 C.F.R. § 100.205(c)(3)(ii). The Guidelines specify that such controls must be located no lower than 15 inches and no higher than 48 inches above finished floor level. Guidelines (Req. 5), 56 Fed. Reg. at 9507.27 The placement of such controls outside of the range set in the Guidelines violates the Act. Balachowski v. Boidy, No. 95-CV-06340, 2000 WL 1365391, at *2, *6 (N.D. Ill. Sept. 20, 2000); Montana Fair Hous., 81 F. Supp. 2d at 1066–67, 1069; Perland, 1998 WL 142159, at *5, *7.
At seven properties, thermostats are at or more than 58 inches above the floor, significantly higher than the 48-inch maximum of the Guidelines, 56 Fed. Reg. at 9507. They are also significantly higher than the 54-inch maximum for a side reach provided in ANSI 4.2.6, Ex. 17, App. 852. Ex. 1, Items 473–82, App. 111–14.
5. Usable kitchens and bathrooms, 42 U.S.C. § 3604(f)(3)(C)(iii)(IV) The FHA requires covered units to include “usable kitchens and bathrooms such that an individual in a wheelchair can maneuver about the space.” 42 U.S.C. § 3604(f)(3)(C)(iii)(IV); 24 C.F.R. § 100.205(c)(3)(iv). The Guidelines set forth technical specifications for the clear floor space and dimensions that are necessary to ensure that kitchens and bathrooms comply with the FHA.

27 ANSI A117.1–1986 allows a height of 54 inches if the clear floor space allows a parallel approach by a person using a wheelchair. ANSI 4.2.6, Ex. 17, App. 852.

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a. Usable kitchens The proper design and construction in kitchens is essential to allow a person to maneuver among appliances and to safely use appliances. The dimensional requirements include a 30 x 48inch clear floor space either parallel or perpendicular to and centered28 on all kitchen appliances29 so that a person using a wheelchair can reach the operable parts, such as the faucet. Guidelines (Req. 7), 56 Fed. Reg. at 9511; Ex. 8, Design Manual at 7.3, App. 493. The Guidelines further state that the minimum clearance between counters and all opposing base cabinets, countertops, appliances, or walls must be at least 40 inches to allow sufficient maneuvering space. Guidelines (Req. 7), 56 Fed. Reg. at 9511, Ex. 8, Design Manual at 7.7, App. 497. To ensure that the 40-inch clear aisle is achieved, designers and builders must provide a sufficiently deep space for refrigerators and other appliances and must select an appliance that will not project into the 40 inches of clear floor space. See Grant, No. 01-2069, slip op. at 21–22 (Ex. 15, App. 804–05) (rejecting the argument that “the forty inch measurement in the Guidelines is arbitrary,” and granting summary judgment as to liability where defendants provided only 36 inches of clearance in the kitchens). In “U-shaped” kitchens with a sink, range, or cooktop at its base, the Guidelines require a 60-inch diameter turning circle, which is “necessary for a person using a wheelchair to approach and position themselves parallel to the

28 The text of the Guidelines does not use the words “centered” when specifying the required clear floor space. However, the figures in the Guidelines clearly show centering. Guidelines, 56 Fed. Reg. at 9512–14. The Design Manual, first published in August 1996 and containing HUD’s interpretation of the Guidelines, specifies centering. Ex. 8, Design Manual at 7.5, App. 495 (“The parallel clear floor space at [kitchen] sinks, as at ranges and cooktops, must be centered on the bowl or appliance.”); accord Olde St. Andrews II, No. 3:98-CV-630, slip op. at 14 (Ex. 16, App. 824) (noting that kitchen designs violated the FHA because “there is not the required 30” x 48” clear floor space parallel to and centered on the sinks”). 29 Designers and builders have two options for ensuring that kitchen appliances such as ranges, cooktops, and sinks comply with the FHA. First, the Guidelines specify a 30 x 48-inch clear floor space centered on the sink or appliance for a parallel approach. Guidelines Req. 7, 56 Fed. Reg. at 9511–12; Ex. 8, Design Manual at 7.4–7.6, App. 494–96. The required clear floor space may be perpendicular to the sink or appliance where knee and toe space is provided. Ex. 8, Design Manual at 7.4–7.6, App. 494–96. Knee space can be achieved by providing an easily removable base cabinet. Id. at 7.12–7.13, App. 502–03.

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appliance or fixture at the base of the U.” Guidelines (Req. 7), 56 Fed. Reg. at 9511; Ex. 8, Design Manual at 7.9, App. 499.
JPI’s properties contain violations of the requirement for usable kitchens as follows: 1. At nine properties, the clearance between counters and all opposing base cabinets,
countertops, appliances, or walls is at or less than 36 inches, significantly less than the minimum 40-inch requirement of the Guidelines, 56 Fed. Reg. at 9511. Ex. 1, Items 483–502, App. 114–19. 2. At five properties, the turning radius provided in U-shaped kitchens is less than 51 inches, significantly less than the 60-inch minimum in the Guidelines, 56 Fed. Reg. at 9511. Ex. 1, Items 503–08, App. 119–20. 3. At two properties, the 30 x 48-inch clear floor space at the kitchen sink or range is off-center by more than 9 inches and is not compliant with the Guidelines, 56 Fed. Reg. at 9511. Ex. 1, Items 509–11, App. 120–121. b. Usable bathrooms The Guidelines also define several essential features for usable bathrooms, including sufficient space to permit a wheelchair user to enter a bathroom, close the door, and open the door from the inside, as well as safely use the features. For example, as with kitchens, the dimensional requirements include a 30 x 48-inch clear floor space either parallel to or perpendicular to and centered30 on the bathroom lavatory so that a person using a wheelchair can

30 See supra note 28; Guidelines, 56 Fed. Reg. at 9512–14; Ex. 8, Design Manual at 7.47, App. 537; see also Quality Built II, 309 F. Supp. 2d at 777 (granting plaintiff’s motion for summary judgment where “[t]he evidence presented by Plaintiff shows that . . . in the second bathroom there is not 30 inches by 48 inches of clear floor space parallel and centered on the lavatory, and the lavatory is [improperly] positioned with the centerline of the sink 15 inches from the adjacent sidewall”); Grant, No. 01-2069, slip op. at 22–23 (Ex. 15, App. 805–06) (explaining that “[w]hen the requisite space is not provided or not centered on the sink, persons with disabilities cannot get close enough to the faucets and the sink to make effective use of them,” and holding that “[t]hese deficiencies violate the FHA”); Tanski, 2007 WL 1017020, at *15 (holding that the government established a violation of the FHA “as a matter of law” by demonstrating that the bathrooms lack a “30 by 48 inch clear-floor space centered on the lavatory in the

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reach the operable parts, such as the faucet. Guidelines (Req. 7), 56 Fed. Reg. at 9511; Ex. 8, Design Manual at 7.47, App. 537. The Guidelines further require that no less than 18 inches exist between the centerline of the toilet to the tub or sidewall so that there is sufficient space to install grab bars and to transfer to the toilet from a wheelchair. Guidelines (Req. 7), 56 Fed. Reg. at 9511–15. See Grant, No. 01-2069, slip op. at 22 (Ex. 15, App. 805) (noting that “[t]he Guidelines also establish technical specifications for bathrooms, including . . . at least eighteen inches from the centerline of the toilet to the tub or side wall,” and holding that the defendants violated the FHA by locating the toilets only 15 inches from the side wall); Tanski, 2007 WL 1017020, at *13, 15–16 (holding that defendants violated the FHA by locating the toilet closer than 18 inches to the bathtub).
JPI’s properties contain violations of the requirement for usable bathrooms as follows: 1. At five properties, the clear floor space is not provided in the bathroom to allow a
wheelchair user to enter and close the door as provided in the Guidelines, 56 Fed. Reg. at 9511. Ex. 1, Items 512–18, App. 121–122. 2. At five properties, the required clear floor space at the toilet is not provided as illustrated in the Guidelines, 56 Fed. Reg. at 9511 and 9513. In most cases, the clear floor space is obstructed by the placement of the toilet in an alcove. Ex. 1, Items 519– 27, App. 122–124. 3. At two properties, the centerline of the toilet is located less than 15 inches from the adjacent wall, significantly less than the 18-inch dimension provided in the Guidelines, 56 Fed. Reg. at 9511 and 9513. It is also less than the 16 to 18-inch

bathrooms”); Shanrie I, 2007 WL 980418, at *10 (finding that the Guidelines require centering of clear floor space in kitchens and bathrooms).

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permissible dimension found in the most recent versions of ANSI. Ex. 1, Items 528– 29, App. 124–125. 4. At two properties, the 30 x 48-inch clear floor space is more than 9 inches off-center at the bathroom lavatory and is not compliant with the Guidelines, 56 Fed. Reg. at 9511 and 9514. Ex. 1, Items 527, 530, App. 124–125. F. JPI’s Properties Contain Inaccessible Features in Violation of the ADA In addition to the FHA, certain public use areas of multi-family residential dwellings, such as leasing spaces, public bathrooms, and parking available to the public, are covered by the ADA, which establishes design requirements for the construction and alteration of public facilities. 42 U.S.C. § 12183. The ADA requires the Department of Justice (“DOJ”) to promulgate regulations to enforce the design and construction provisions of the ADA. Id. § 12186(b). In accordance with that mandate, DOJ has implemented mandatory requirements for accessibility in new construction. The 1991 ADA Standards for Accessible Design (“1991 Standards”)31 were published on July 26, 1991, and were mandatory for all new construction built for first occupancy after January 26, 1993. Id. § 12183; 28 C.F.R. §§ 36.104, 36.401, App. A.32 The DOJ regulations implementing the ADA are entitled to Chevron deference. Bragdon v. Abbott, 524 U.S. 624, 646 (1998). For multifamily housing, HUD has made clear that the ADA accessibility requirements for new construction are applicable to “common areas . . . within residential facilities . . . if they are open to persons other than residents and their guests.” Supplement to Notice of Fair Housing Accessibility Guidelines: Questions and Answers about

31 The 1991 Standards were originally referred to as the ADA Accessibility Guidelines (“ADAAG”). 28 C.F.R. § 36.406, App. A (1994). The United States Access Board has also published guidelines known as the ADAAG. The Access Board’s ADAAG is not the same as the 1991 Standards and does not have legal authority. See http://www.access-board.gov/ada/ (last visited Apr. 15, 2011). 32 Effective March 15, 2011, DOJ has revised the ADA regulations and adopted the 2010 ADA Standards for Accessible Design, which are permitted for new construction beginning September 15, 2010, and mandatory for all new construction permitted or begun after March 15, 2012. 28 C.F.R. § 36.406.

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the Guidelines (June 28, 1994) (Ex. 8, App. 637). Therefore, “[r]ental offices and sales office for residential housing, for example, are by their nature open to the public, and are places of public accommodation and must comply with the ADA requirements in addition to all applicable requirements of the Fair Housing Act.” Id.
In most cases, the ADA violations at the properties are also FHA violations in the public and common use areas discussed in Part III.E.1, supra. Where a violation is both an FHA and ADA violation, the citations to the FHA Guidelines and the 1991 ADA standards are included for each item in Exhibit 1. See Ex. 1, Items 5, 42, 46–47, 100, 110, 130, 155–63, 175–77, 179, 190, 198, 263, 295, 310, 342, 346, 373–74, 439–40, 442, App. 4, 14–15, 26, 28, 35, 39–40, 42, 44, 46, 61–62, 69, 73, 80–81, 87, 101–02. Additionally, at six properties, there is no vanaccessible parking at the leasing office as required by the ADA, or the accessible parking is otherwise noncompliant. 28 C.F.R. Pt. 36, App. A, §§ 4.1.2(5), 4.6. Ex. 1, Items 423–28, App. 98–99.
G. The Accessibility Violations Constitute a Pattern or Practice of Discrimination and Denial of Rights to a Group of Persons The FHA and ADA authorize the Attorney General to bring suit where he has reasonable
cause to believe that a defendant has (1) engaged in a pattern or practice of discrimination, or (2) denied rights to a group of persons where such denial raises an issue of “general public importance.” 42 U.S.C. §§ 3614(a), 12188(b)(1)(B). Both apply here.
A “pattern or practice” is established when the evidence shows “more than the mere occurrence of isolated . . . or sporadic discriminatory acts.” See International Bhd. of Teamsters v. United States, 431 U.S. 324, 336 (1977). Instead, it must be shown that discrimination is the defendant’s usual practice. Id. In this case, the undisputed facts show that JPI designed and constructed 32 multifamily housing properties with violations of the FHA and ADA. This

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represents a systemic denial of housing rights and access for persons with disabilities and harms not only current residents and visitors with disabilities but also any future buyers or renters with disabilities. This constitutes a “pattern or practice” of discrimination. See Tanski, 2007 WL 1017020, at 24 (“Having already found multiple violations of section 3604(f)(3)(C) in a total of 362 covered units . . . , the Court has no difficulty finding a pattern or practice of Fair Housing Act violations.”); Quality Built I, 309 F. Supp. 2d at 760.
It is not necessary for the United States to prove that every property designed or constructed by JPI contains FHA violations, nor is it necessary for every feature at a property to contain violations.33 See Genesis, No. CV406-096, slip op. at 37–38 (Ex. 14, App. 770–71) (holding that evidence that some aspects of a development comply with the FHA is “wholly nonmaterial and do[es] nothing to create an issue of fact as [to] FHA liability”); see also United States v. Lansdowne Swim Club, 894 F.2d 83, 89 (3d Cir. 1990) (holding that the court “need not find that [defendant] always discriminated to find that it engaged in such a pattern or practice”) (public accommodations case); United States v. Ironworkers Local 86, 443 F.2d 544, 551–52 (9th Cir. 1971) (holding that defining pattern or practice to mean that defendants “uniformly engaged in a course of conduct aimed at denying rights secured by the Act” was overly restrictive and was not what was intended by Congress) (employment case); Davis v. The Mansards, 597 F. Supp. 334, 345 (N.D. Ind. 1984) (even though significant numbers of blacks

33 Defendants’ statistician Joseph Kadane opines that the United States’ experts cannot extrapolate the measurements from one unit to another unit of the same type because the units were not chosen using statistical random sampling, and therefore the experts’ conclusions must be limited to only the units they surveyed. Ex. 19, App. 922–25. Statistical random sampling is neither necessary nor appropriate where, as here, the United States’ experts reviewed multiple units of each design. Moreover, random sampling is not an issue for the exterior violations. Nevertheless, even if the experts’ opinions were limited only to the surveyed units, the numerous violations found at the hundreds of surveyed units are more than sufficient to show a pattern or practice of discrimination or a denial of rights to a group of persons. See Genesis, No. CV406-096, slip op. at 38–39 (Ex. 14, App. 771–72) (holding that “mildly variant or slightly modified construction as compared to floor plans is irrelevant” and does not create a genuine issue of material fact).

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were rented to, evidence showed that defendants sought to control complex’s black population by discouraging all black applicants but allowing a few to be admitted) (FHA case).
The facts also establish a denial of housing rights to a group of individuals that raises an issue of general public importance. The Attorney General’s determination that a matter raises an issue of general public importance is not reviewable. See United States v. Bob Lawrence Realty, 474 F.2d 115, 125 n.14 (5th Cir. 1973); Shanrie I, 2007 WL 980418, at *9 (“[C]ourts have consistently refrained from reviewing the Attorney General’s determination that a matter is of general public importance.”). Accordingly, under § 3614(a), this Court need only decide whether JPI’s conduct denied a group of persons rights guaranteed under the FHA. See Taigen & Sons, 303 F. Supp. 2d at 1139 (“[T]he Court concludes that if the Taigen Defendants have inadequately designed and constructed Centennial Trail to serve persons with disabilities, the Taigen Defendants have denied a group of persons rights granted by the Fair Housing Act and such a denial raises an issue of general public importance.”).
H. JPI Is Liable for Accessibility Violations at the Properties It is well established that “[w]hen a group of entities enters into the design and
construction of a covered dwelling, all participants in the process as a whole are bound to follow the FHAA.” Rommel Builders, 3 F. Supp. 2d at 665; see also Quality Built I, 309 F. Supp. 2d at 761; Tanski, 2007 WL 1017020, at*22 (“The purpose of the Fair Housing Act to create available housing for the handicapped is best served by imposing broad liability on all those people and entities that are involved in designing and constructing the various aspects of a covered multifamily dwelling.”); Shanrie I, 2007 WL 980418, at *8 (“HUD’s technical assistance brochure . . . states that architects, builders, building contractors, site engineers, and any other person involved

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in the design and construction of residential housing must comply with the FHA.”).34 “Entities who are involved in the design and construction of housing covered by the FHA must make it their business to ensure that such housing meets the accessibility requirements of the FHA.” Shanrie I, 2007 WL 980418, at *8.35
JPI is liable for the undisputed discriminatory conditions discussed in this motion. JPI has already conceded that it is responsible for these properties by representing to the Court and to the United States that JPI designed and constructed 210 properties, including the 52 properties in the initial phase of discovery. Ex. 2, Defs. Init. Disc., at 2 n.1 and Ex. C, App. 127, 131–41 (where “JPI” is defined as the seven named defendants, and JPI stated that “attached hereto as Exhibit C is a list of [210] properties designed and constructed by JPI since 1991”); Dkt. 32, Supp. Joint Status Rep., at 1, 24, 32 (where “JPI” is defined as the seven named defendants, JPI stated that “[o]ver the past 20 years, JPI has steadily built 210 unique multi-family properties, located in 26 states and the District of Columbia,” and that “52 properties (25 percent of the portfolio)” would “approximate the vast diversity of JPI’s portfolio”).
Moreover, “in civil rights actions, ‘superficially distinct entities may be exposed to liability if they are in fact, a single, integrated enterprise.’” Schweitzer v. Advanced

34 In Whitaker v. West Village Limited Partnership, No. Civ.A.3:03-CV-0411-P, 2004 WL 2046771, at *1 (N.D. Tex. Sep. 10, 2004), the court found that the construction defendant was not liable because it did not both design and construct the properties at issue. In a prior opinion, the court refused to dismiss claims against the architect because plaintiffs had alleged that the architect had both designed the property and had supervisory authority over construction. Whitaker v. West Village Ltd. P’ship, No. Civ.A.3:03-CV-0411-P, 2004 WL 1778963, at *4 (N.D. Tex. Aug. 4, 2004). The FHA should not be read to require that a defendant both design and construct a property to prove liability. See Mont. Fair Hous., 81 F. Supp. 2d at 1069 (“Nothing in the legislative history supports [a] wooden reading of ‘design and construct,’ and the purpose of the Act is best fulfilled by a disjunctive reading.”) Furthermore, as the owner and/or developer of the properties, JPI had full authority over each project, including hiring the architects, planning the design, and constructing the properties. 35 It is not necessary to include all participants in the design and construction process in a lawsuit to find liability for one participant in the process. The United States’ decision not to include architects or site engineers who may have been involved in the design and construction of JPI’s properties has no bearing on whether JPI is liable for the FHA violations. Each participant in the process has a non-delegable duty to comply with the FHA. See, e.g., United States v. Shanrie Co., 610 F. Supp. 2d 958, 961 (S.D. Ill. 2009) (citing United States v. Gambone Bros. Dev. Co., No. 061386, 2008 WL 4410093, at *8 (E.D. Pa. Sep. 25, 2008)).

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Telemarketing Corp., 104 F.3d 761, 763 (5th Cir. 1997) (quoting Trevino v. Celanese Corp, 701 F.2d 397, 404 (5th. Cir. 1983)); see also Epie v. Owens, No. 3:09-CV-1681-D, 2010 WL 5620959, at *3–4 (N.D. Tex. 2010). The “single, integrated enterprise” test considers “(1) interrelation of operations; (2) centralized control of labor relations; (3) common management; and (4) common ownership or financial control.” Schweitzer, 104 F.3d at 764; see also Radio and Television Broad. Technicians Local 1264 v. Broad. Serv. of Mobile, Inc., 380 U.S. 255, 256 (1965) (establishing same four-part test under NLRA).
As discussed in Part II.B, supra, JPI, consisting of the named Defendants and other affiliated JPI entities, is a single, integrated enterprise. There is ample evidence of the JPI’s operational unity. One JPI entity, JPI Partners, L.L.C., provided all other JPI entities with the personnel for the design and construction process. The entities followed the same FHA and ADA policies and procedures. The same JPI trademark is widely used on promotional materials and letterhead. JPI has a single corporate mission statement. The JPI entities that designed and constructed the properties discussed in this motion shared the same managerial officers or officials. Each JPI entity was headquartered in the same office space at 600 E. Los Colinas Blvd., Suite 1800, Irving, TX. Because of these entities’ operation as a single, integrated enterprise, JPI is liable for the discriminatory conditions at the properties discussed in this motion.
I. JPI Has Not Complied with Any Other Recognized, Objective Measure of Accessibility Having established that the undisputed facts show violations of the FHA Guidelines at
JPI properties and that JPI is responsible for those violations, the burden shifts to JPI to prove that it complied with another “recognized, comparable, objective measure of accessibility.” 73 Fed. Reg. at 63614 (emphasis added). See supra Part III.B. JPI cannot meet this burden.

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Through interrogatories, the United States specifically asked JPI to identify whether any property was built in accordance with a HUD-recognized safe harbor, and if not, what specific standard was used at each property to ensure compliance with the FHA and ADA. Ex. 20, Defs. Resps. to U.S. Interrog. No. 5, App. 926–51. JPI has not identified any specific safe harbor or standard used for any property. Id. Indeed, given the numerous egregious violations of the Guidelines at the properties discussed in this motion, JPI cannot show that these properties comply with another safe harbor. The Guidelines are generally accepted as the least restrictive of all the safe harbors,36 and HUD reviewed the other safe harbors to ensure that they provide at least the same level of accessibility as the Guidelines, see 72 Fed. Reg. at 39541. Thus, evidence that the properties do not comply with the Guidelines is, in effect, proof that they do not comply with any safe harbor.
The opinions offered by the individuals retained by JPI do not demonstrate that JPI complied with a recognized, objective, measurable standard at any of the properties. The use of a recognized, objective, measurable standard is necessary to ensure consistency and provide the basic level of accessibility required by the FHA. The ANSI standard, for example, is developed through a consensus process by a committee comprised of a diverse and balanced group of interested parties. The ANSI process requires that all views and objections be considered and concerted efforts be made toward resolution. See Dkt. 47-2, Schoonover Rep., at 9–11; Ex. 17, ANSI A117.1–1986, App. 833. The process ensures objectivity, and the resulting standard provides consistent criteria for designers, builders, and disabled persons to rely upon. See Dkt. 47-2, Schoonover Rep., at 4.

36 Ex. 12, Skarzenski Dep., at 64:23–65:18, App. 690; Ex. 9, Sheriff Dep., at 119:23–120:14, App. 652; Dkt 47-2, Schoonover Rep., at 13; Dkt. 141-1, LCM Rep., at 2–6.

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Paul Sheriff does not use any standard; his methodology is to evaluate accessibility by videotaping himself navigating the property in his custom-made wheelchair. His methodology is inherently subjective and specific to his physical characteristics and abilities.37 As discussed above in Part III.B, courts have repeatedly rejected evidence of the ability of a person with disabilities to navigate a property as insufficient to prove accessibility. See Tanski, 2007 WL 1017020, at *14; Nelson, 2006 WL 4540542, at *6–7; Quality Built I, 309 F. Supp. 2d at 772 n.1; Grant, No. 2:01-cv-2069, slip op. at 8 (Ex. 15, App. 791).
Dr. Vredenburgh’s methodology of photographing her non-disabled associate using a wheelchair and positioning herself at various features at a property suffers from the same unreliability as Mr. Sheriff’s approach. Evidence of one person’s ability to use a feature at a property is not evidence of accessibility as required by the FHA. Dr. Vredenburgh testified that it was not her opinion that if one person in a wheelchair could use a feature then it was accessible to all wheelchair users and claimed that her methodology merely showed the positioning of an average-sized woman in a wheelchair. Ex. 10, Vredenburgh Dep. (Jan. 24, 2011), at 117:21– 121:2, App. 664–65. She admitted that another wheelchair user performing the same inspection may have different abilities and obtain different results. Id. at 120:23–121:2, 124:12–20, App. 664–65.38
Dr. Vredenburgh’s conclusions about her measurements of kitchens and bathrooms rely on her own research to evaluate compliance. Dkt. 78-1, Vredenburgh Rep., at 4–7; Ex. 10, Vredenburgh Dep. (Jan. 24, 2011), at 47:4–16, 114:18–25, App. 660, 663. Although she did not measure the running slopes and cross-slopes of walkways and ramps, she also makes conclusions
37 See Dkt. 141-1, LCM Rep., at 97–108; Dkt. 142-1, Schoonover Rep., at 4, 15–16; Dkt. 144-1, Hilberry Rep., at 16–29. 38 Dr. Vredenburgh testified that her opinions in this case are not applicable to new construction, and she was not offering any opinion as to accessibility features that should exist at the time of design and construction. Rather, her opinion was focused on whether an existing feature at a JPI property could be adapted. Ex. 10, Vredenburgh Dep. (Jan 24, 2011), at 108:3–10, App. 661.

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about what is an accessible running slope and cross-slope based on another study funded by another defendant in a design and construction case. Dkt. 78-1, Vredenburgh Rep., at 7–10; Ex. 21, Vredenburgh Dep. (United States v. Edward Rose & Sons, Sep. 29, 2004), at 315:5–25, App. 954. While research that evaluates accessibility for persons with disabilities may be useful in developing a standard, Dr. Vredenburgh’s research is not itself a recognized standard.39 See Dkt. 142-1, Schoonover Rep., at 25–31.
Mark Wales describes his methodology as relying on “a combination of a lot of things such as safe harbors, the other technical guidance, research, whatever it takes for me to determine whether a reasonable design consistent with the requirements that acts as a requirements [sic] has been obtained.” Ex. 11, Wales Dep. (Jan. 14, 2011), at 109:15–111:6, App. 676–77; Dkt.179-2, Wales Rep., at 75–78. Although Mr. Wales stated in his JPI deposition that his approach is not subjective, Ex. 11, Wales Dep., at 110:2–3, App. 677, in prior testimony he has repeatedly described his methodology and approach to accessibility in general as subjective.40

39 The reliability of Dr. Vredenburgh’s research and the conclusions she draws about what is accessible to a broad range of disabled persons are also highly questionable. See Dkt. 139-1, Iezzoni Rep.; Dkt. 140-1, Bradtmiller Rep., Dkt. 141-1, LCM Rep., at 68–96; Dkt. 142-1, Schoonover Rep., at 16–17, 25–31. 40 Q. Would you apply a set of technical criteria to make the determination of whether a public use or a common use area is readily accessible to and usable by handicapped persons? A. Under this section, no. It would be a subjective determination based on my experience and understanding and reference materials. Ex. 22, Wales Dep. (United States v. Edward Rose & Sons, Oct. 5, 2004), at 154:2–10, App. 963; see also 89:3– 90:25; 109:17–112:18; 150:3–151:6, App. 958–62.
Q. And at the very bottom, the last paragraph, it says, “Therefore, the design and construction of covered multifamily dwellings, as well as the determination of compliance with the Fair Housing Act are subjective.” Did I read that accurately? A. Yes. Q. So if it’s subjective, does that mean that one consultant might reasonably believe that something is usable, and another consultant might reasonably believe the opposite? A. Yes. Ex. 23, Wales Dep. (United States v. Shanrie Co., Mar. 10, 2006), at 174:15–177:12, App. 969–70.
Q. In your expert report in this case, you state on the first page that the FHA requirements related to design and construction do not include prescriptive technical criteria, therefore, the design and construction of covered multi-

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Mr. Wales’s approach is subjective, vague, and unreliable. The following is a typical
example of Mr. Wales’s reasoning for determining that a particular condition is not a violation of
the FHA:
Slopes and cross slopes at doorways and gates have been limited in some instances, however, the basis for such limitation is not clear. Some references indicate that the slope at a doorway should be limited to 5% (Goldsmith, Selwyn (1984). Designing For the Disabled. RIBA Publications Limited: London, England). Others indicate that they should be limited to 2% in all directions. However, I have found nothing that proves that doorways and the landing adjacent to them are not accessible at higher slopes.
Some argue that it is difficult to negotiate doors for persons in wheelchairs when the landings are sloped. I have found nothing, based on empirical research, to indicate the true limit of slope of a doorway landing beyond which it becomes inaccessible.
Dkt. 79-1, Wales Rep., at 42. In this example, Mr. Wales cites no recognized accessibility
standard, merely citing to “some” references and arguments and vaguely relying on “empirical
research.” Mr. Wales provides no alternative standard for the maximum 2% cross-slope required
by the Guidelines, 56 Fed. Reg. at 9505, Ex. 17, ANSI 4.3.7, App. 852, thus allowing him to
conclude that any cross-slope above 2% called out by the United States’ expert is not a violation
of the FHA, no matter the egregiousness of the violation. As noted above, research alone cannot
be considered a recognized standard, and Mr. Wales has admitted that he is not an expert on
applying or evaluating the research to which he cites. Ex. 25, Wales Dep. (ERC v. Post
Properties, Oct. 30, 2008), at 177:6–184:6, App. 981–83. As another example, Mr. Wales cites
standards that are not and were not intended to be applicable to new construction, such as safe

family dwellings, as the determination of compliance with the Fair Housing Act, are subjective. What do you mean by that? A. I mean that without required technical -- prescriptive technical criteria, a person designing and building something under Fair Housing would be allowed to simply make it accessible by using other methods than -- or other technical criteria that they feel is appropriate to make something accessible. Q. And would that determination depend on the individual builder or builders’ subjective determination of what is accessible? A. Yes. I think under the Fair Housing Act, they have the option to use whatever alternate method they choose to use to comply with the Fair Housing Act. Ex. 24, Wales Dep. (United States v. Richard & Milton Grant Co., Apr. 5, 2006), at 5:15–6:12, App. 974–75.

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harbor standards applicable to existing structures and historic buildings. Mr. Wales reasons that “[e]ven if the safe harbors choose to limit the use of some of those slopes to existing buildings or historic buildings, the slopes are nonetheless accessible according to those standards.” Dkt. 1665, Wales Rep., at 29; Ex. 11, Wales Dep. (Jan. 14, 2011), at 255:3–256:10, App. 678a.
Essentially, Mr. Wales’s methodology is to use “whatever it takes,” Id. at 109:23, App. 676, to allow him to conclude that a condition called out by the United States’ expert is not a violation of the FHA. By his own admission, his approach is subjective. Therefore, Mr. Wales’s approach cannot be used as a basis to prove accessibility as required by the FHA.
Of all of JPI’s property inspectors, Pete Skarzenki’s methodology most closely approximates the inspection methodology used by the United States’ experts. In fact, Mr. Skarzenski testified that, although the Guidelines are not mandatory, he recommends evaluating compliance with the FHA by using field measurements and comparing them to the Guidelines and ANSI–1986. Ex. 12, Skarzenski Dep. (Feb. 3, 2011), at 138:19–139:9, 151:2–7, App. 692– 93. Mr. Skarzenski does not generally dispute the observations or measurements provided by the United States’ experts. Rather, he offers his own interpretation of the Guidelines or argues that a feature meets the requirements of a different safe harbor. Dkt. 86-2, Skarzenski Rep., at 1. Not only are Mr. Skarzenski’s interpretations of the Guidelines incorrect, but they are also selfserving given his close involvement with JPI as both a consultant and a design professional with Fusch Serold. Additionally, it is not appropriate to selectively choose individual specifications from any safe harbor. Doing so in effect creates a new standard, and safe harbor status may be lost. 72 Fed. Reg. at 39438; 73 Fed. Reg. at 63614. JPI has not shown that this cherry-picking approach creates at least the same level of accessibility as required by the Guidelines.

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In short, by employing various non-objective methodologies and offering opinions untethered to any recognized—or recognizable—accessibility standard, those retained by JPI to challenge the findings of the United States’ experts have failed to do so. Instead, their reports only underscore what is not in dispute: over a period of nearly two decades, JPI has built a diverse array of multi-family properties across the country that contain extensive and significant accessibility barriers, in violation of the FHA and ADA.
J. JPI Has Not Shown that Any Property Qualifies for the Site Impracticality Exemption JPI has not made a claim of site impracticality at 19 of the properties at issue in this
motion. To the extent that it makes that claim regarding the remaining 13 properties, the evidence is insufficient as a matter of law to establish this defense. Although the FHA itself does not contain any exemption based on site constraints, see 42 U.S.C. § 3604(f)(3)(C), Congress recognized that the terrain at certain building sites may pose “unique building problems” that should be taken into consideration in determining compliance with the FHA. H.R. Rep. No. 711, at 27. HUD’s regulations reflect this consideration by requiring that covered multifamily dwellings “must have at least one building entrance on an accessible route unless it is impractical to do so because of the terrain or unusual characteristics of the site,” 24 C.F.R. § 100.205(a). In the Guidelines, HUD sets forth specific, narrowly tailored “site impracticality” tests that must be used before any otherwise covered dwelling units may be exempted from the FHA requirements. Guidelines (Req. 1), 56 Fed. Reg. at 9503–04. These tests are further clarified in the Design Manual. Ex. 8, 1.43–1.55, App. 388–400. No matter which test is used, at least 20 percent of the ground floor units on any site must comply with the Guidelines. Guidelines (Req. 1), 56 Fed. Reg. at 9503. As described in Part III.C, supra, HUD’s interpretation of its requirements regarding site impracticality is entitled to deference.

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The site impracticality exemption, like any exemption to the FHA, must be construed narrowly in light of the FHA’s broad remedial purposes. See City of Edmonds v. Oxford House, Inc., 514 U.S. 725, 731–32 (1995); Fair Hous. Advocates Assoc. v. City of Richmond Heights, 209 F.3d 626, 634 (6th Cir. 2000). “The burden of establishing impracticality because of terrain or unusual site characteristics is on the person or persons who designed or constructed the housing facility.” 24 C.F.R. § 100.205(a); see Fair Hous. Advocates, 209 F.3d at 634 (“Federal courts have repeatedly concluded that the party claiming the exemption ‘carries the burden of proving its eligibility for the exemption,’ and that “[e]xemptions from the [FHA] are to be construed narrowly, in recognition of the important goal of preventing housing discrimination.’”) (quoting Massaro v. Mainlands Section 1 & 2 Civic Ass’n, Inc., 3 F.3d 1472, 1475 (11th Cir. 1993), cert. denied, 513 U.S. 808 (1994)).
For site impracticality to apply, the tests provided in the Guidelines must be done before construction. Guidelines (Req. 1), 56 Fed. Reg. 9503–04. Both tests in the Guidelines refer to analysis of the “undisturbed site.” Id. HUD commentary indicates that “[t]he slope analysis is performed at the early stages of the development process, in preparation for planning the use of the site.” 55 Fed. Reg. at 24378–79; see also Ex. 8, Design Manual, at 1.4, App. 349; 65 Fed. Reg. at 15750 (“the site impracticality exception cannot be applied to instances in which the lack of an accessible route is due to manmade barriers, such as the failure to provide a walkway or the construction of a step”); Grant, No. 2:01-cv-2069, slip op. at 11 (Ex. 15, App. 794) (rejecting as “circular” defendants’ argument that “they cannot comply with the FHA because the units, as built, do not comply with the FHA requirements” and holding that defendants had not met their burden to show site impracticality). Indeed, allowing designers and builders to calculate impracticality long after construction would contradict the stated purpose of the exemption—to

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address instances where creating an accessible route was impractical. If a site or an individual building does not qualify for the exemption based on one of the two tests, the dwelling units are covered by the FHA and are required to have an accessible building entrance on an accessible route. Guidelines (Req. 1), 56 Fed. Reg. 9503–04.
The United States served an interrogatory asking JPI to identify any property or portion of a property that JPI contends is subject to the site impracticality exemption. Ex. 26, Defs. Resps. to U.S. Interrog. No. 8, App. 985–1006. JPI’s response was vague, stating that “JPI’s third-party design professionals and consultants took into account the fact that the terrain or unusual characteristics of the site occasionally made it impractical to design and construct the ground floor units with an accessible entrance on an accessible route.” Id. No specific property was identified.
The United States also served requests for admission asking JPI to admit that it had not performed the site impracticality tests at any of the properties either before or after construction. Ex. 27, Defs. Resps. to Req. for Admis., App. 1007–1107. JPI admitted that site impracticality does not reduce the number of covered units at 19 of the 32 properties at issue in this motion. Id. JPI denied the requests for admission at the remaining 13 properties, but JPI has never provided any evidence showing that anyone performed the tests as required by the Guidelines.41 JPI’s inspectors testified that they had not performed site impracticality tests on any of the properties. Ex. 9, Sheriff Dep. (Jan. 20, 2011), at 135:13–136:10, App. 654; Ex. 12, Skarzenski Dep., at 189:4–192:1, App. 694–95; Ex. 11, Wales Dep. (Jan. 14, 2011), at 138:11–21, App. 678. Rather, JPI’s inspectors’ claims of impracticality amount to cursory conclusions that if an accessibility
41 JPI’s inspectors assert that the only standards JPI is required to meet are the minimum accessibility requirements contained in the language of the FHA itself. See, e.g., Dkt. 79-1, Wales Rep., at 5. To take that argument to its logical conclusion, however, would preclude application of the site impracticality exemption, as it is not included in the FHA. JPI’s inspectors’ approach is to use the Guidelines or other safe harbors when they are helpful to JPI, such as exempting units under site impracticality, but then disregard them when the application of an appropriate standard would show noncompliance with the FHA.

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barrier exists, it must be because the site was impractical. This is the same tautological argument rejected by the court in Grant, No. 2:01-cv-2069, Slip op. at 11 n.5 (Ex. 15, App. 794) (“[T]he Grant Defendants would like the Court to consider the fact that they have constructed an approach with two steps to prove that the walk could not have been created without the steps.”). Vague assertions by JPI’s inspectors cannot meet the strict requirements of the site impracticality exemption.42 JPI has not met its burden of proving impracticality at any property, and therefore all ground floor units at JPI’s properties are covered by the FHA.
IV. THE COURT SHOULD ORDER JPI TO SUBMIT A REMEDIAL PLAN Courts have ordered defendants to submit detailed retrofit plans to remedy violations of
the design and construction requirements of the FHA and ADA. Shanrie II, 669 F. Supp. 2d at 940 (ordering defendants to submit a remedial plan within 45 days to include a detailed description with deadlines of how defendants intend to retrofit properties and to describe how responsibility will be allocated amongst them); United States v. Sharlands Terrace, LLC, Nos. 3:04-CV-00292-LRH-RAM, 3:04-CV-00397-ECR-VPC, 2008 WL 4547209, at *4 (D. Nev. Oct. 1, 2008) (ordering defendants to submit a detailed remedial plan within 45 days); Tanski, 2007 WL 1017020, at *25–26 (“The Court orders the Tanski defendants to submit, within 45 days . . . a detailed remedial plan with appropriate timetables to retrofit the noncompliant units in the Tanski properties so that they comply with the Fair Housing Act.”); Paralyzed Veterans of Am. v.

42 For example, in response to the United States’ expert’s statement that an accessible route is not provided to certain units at Jefferson Lakes, Mr. Wales indicates that the lack of an accessible route “could have been based on site considerations” based on the fact that so many other accessible features are included at the property. Dkt. 93-1, Wales Rep., at 32, Item 50. In his Beaver Creek report, Mr. Skarzenski states that the site was impractical because “the steep topography at this location was relatively obvious and based on my experience I was able to gauge where it exceeded 10%.” Dkt. 86-2, Skarzenski Rep., at 2–4. He admitted that he had not seen the original grades at the site and he did not take measurements. Id.; Ex. 12, Skarzenski Dep. (Feb. 3, 2011), at189:9–20, App. 694.

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Ellerbe Becket Architects & Eng’rs, 950 F. Supp. 393, 405–06 (D.D.C. 1996) (ordering retrofit plan under Americans with Disabilities Act). 43
Accordingly, the United States requests that the Court order JPI to promptly submit (1) a detailed remedial plan with appropriate timetables identifying how JPI will remedy the undisputed discriminatory conditions identified in this motion, and (2) a plan for conducting accessibility surveys and appropriate retrofits of the other properties in JPI’s portfolio, see Ex. 2, Defs. Init. Disc., at 2 n.1 and Ex. C, App. 127, 181–41. Should the Court order JPI to submit such plans, the United States requests the opportunity to respond. 44
V. CONCLUSION For the foregoing reasons, the United States respectfully requests that the Court grant
partial summary judgment as to liability against JPI and order JPI to promptly submit both a detailed remedial plan to address demonstrated violations and a plan for surveying the other properties in JPI’s portfolio.

43 This is consistent with courts’ long-standing practice of ordering remedial plans to redress civil rights violations. See Milliken v. Bradley, 433 U.S. 267, 283 (1977) (education); United States v. Blaine Cnty, 363 F.3d 897, 901 (9th Cir. 2004) (voting); Glover v. Johnson, 138 F.3d 229, 234 (6th Cir. 1998) (prisons); Young v. Pierce, 640 F. Supp. 1476, 1480 (E.D. Tex. 1986) (requiring HUD to submit remedial plan to desegregate publicly-funded housing), vacated and remanded on other grounds, 822 F.2d 1368 (5th Cir. 1987). Requiring a defendant to propose a remedial plan is consistent with the “path well-worn by equity judges overseeing complex, institutional litigation.” See Henrietta D. v. Giuliani, 246 F.3d 176, 182 (2d Cir. 2001). 44 Should the Court grant the United States’ motion for partial summary judgment as to liability, the United States intends to seek monetary damages for aggrieved persons, 42 U.S.C. § 3614(d)(1)(B); other appropriate injunctive relief, 42 U.S.C. § 3614(d)(1)(A)–(B); and civil penalties, 42 U.S.C. § 3614(d)(1)(C).

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Dated: April 15, 2011
JAMES T. JACKS United States Attorney Northern District of Texas

Respectfully submitted,
THOMAS E. PEREZ Assistant Attorney General Civil Rights Division

SUSAN L.S. ERNST Assistant United States Attorney United States Attorney’s Office Northern District of Texas 1100 Commerce Street, Suite 300 Dallas, Texas 75242-1699

s/ Andrea K. Steinacker STEVEN H. ROSENBAUM DC Bar # 417585 Chief MICHAEL S. MAURER DC Bar # 420908 Deputy Chief KEVIN J. KIJEWSKI, KY Bar # 86448 JENNIFER E. MCALLISTER, VA Bar # 71180 PAMELA O. BARRON, VA Bar # 20828 NETA BORSHANSKY, CA Bar # 266295 ANDREA K. STEINACKER, WA Bar # 35688 Trial Attorneys United States Department of Justice Civil Rights Division Housing and Civil Enforcement Section 950 Pennsylvania Avenue, N.W. – G St. Washington, D.C. 20530 202-305-0744 202-514-1116 (fax)

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Certificate of Service I, Andrea K. Steinacker, hereby certify that on the 15th day of April, 2011, I served the Memorandum in Support of United States’ Motion for Partial Summary Judgment as to Liability via the Court’s CM/ECF system to:

Christopher B. Hanback Lynn E. Calkins Rafe Petersen Holland & Knight, LLP 2099 Pennsylvania Avenue, NW Suite 100 Washington, DC 20006-6801

William L. Sessions Sessions Law Firm, P.C. 325 N. St. Paul, Suite 4400 Dallas, Texas 75201

s/ Andrea K. Steinacker Andrea K. Steinacker Trial Attorney U.S. Department of Justice Civil Rights Division Housing and Civil Enforcement Section 950 Pennsylvania Avenue, N.W. – G St. Washington, D.C. 20530 Tel: (202) 305-0744 Fax: (202) 514-1116 andrea.steinacker@usdoj.gov

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 Case 3:09-cv-00412-B Document 237 Filed 05/16/11 Page 1 of 62 PageID 11239

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

UNITED STATES OF AMERICA, Plaintiff,
v. JPI CONSTRUCTION L.P., et al.,
Defendants.

§
§
§ CIVIL ACTION NO. 3:09-cv-0412-B
§
§
§

DEFENDANTS' COMBINED CROSS-MOTION FOR SUMMARY JUDGMENT OR, ALTERNATIVELY, FOR PARTIAL SUMMARY JUDGMENT
AND RESPONSE TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

Pursuant to Rule 56 of the Federal Rule s of Civil Procedure and Local Rule 9.1,

Defendants JPI Construction, L.P.; Multifam ily Construction, L.L.C.; JPI Apartm ent

Development, L.P. d/b/a JPI Campus Quarters ; Lifestyle Apartment Development Service,

L.L.C.; Jefferson Bend, L.P. d/b/a Jefferson at Mission Gate Apartments; Jefferson Lake Creek,

L.P. d/b/a Jefferson Center Apartments; and Apartment Community Realty, L.L.C. hereby move

this Court to enter summary judgm ent or, alte rnatively, partial summary judgm ent against

Plaintiff the United States of America.

Pursuant to this Court's Order dated March 11, 2011 (Dkt. #230), De fendants also herein

respond to Plaintiff's Motion for Summary J udgment filed on April 15, 2011 (Dkt. #236) on the

grounds that there are genuine is sues of m aterial fact in di spute on the issues presented by

Plaintiff such that summary judgment cannot be granted in Plaintiff's favor.

Case 3:09-cv-00412-B Document 237 Filed 05/16/11 Page 2 of 62 PageID 11240

The bases for this Cross-Motion and Res ponse are set forth in the accom panying Memorandum of Points and Authorities along with each of the required m atters for compliance with Local Rules 56.3 and 56.4.
Defendants respectfully request a hearing as it is antic ipated that the Court will be nefit from oral argument on these competing motions.
Respectfully submitted,

SESSIONS LAW FIRM P.C.
By:
/s/ William Lewis Sessions_____ William Lewis Sessions Texas State Bar No. 18041500
Republic Center - Suite 4400 325 North St. Paul Street Dallas, Texas 75201 Telephone: (214) 217-8855 Facsimile: (214) 217-8856 Email: lsessions@sessionslaw.net

HOLLAND & KNIGHT LLP
By:
/s/ Christopher B. Hanback____ Christopher B. Hanback (Admitted Pro Hac Vice) D.C. Bar No. 232579
/s/ Lynn E. Calkins___________ Lynn E. Calkins (Admitted Pro Hac Vice) D.C. Bar No. 445854
/s/ Rafe Petersen_____________ Rafe Petersen (Admitted Pro Hac Vice) D.C. Bar No. 465542
2099 Pennsylvania Avenue, N.W., Suite 100 Washington, D.C. 20006 Telephone: (202) 955-3000 Facsimile: (202) 955-5564 Email: christopher.hanback@hklaw.com Email: lynn.calkins@hklaw.com Email: rafe.petersen@hklaw.com

May 16, 2011

2

Case 3:09-cv-00412-B Document 237 Filed 05/16/11 Page 3 of 62 PageID 11241

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

UNITED STATES OF AMERICA, Plaintiff,
v. JPI CONSTRUCTION L.P., et al.,
Defendants.

§
§
§ CIVIL ACTION NO. 3:09-cv-0412-B
§
§
§

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS' COMBINED CROSS-MOTION FOR SUMMARY JUDGMENT
OR, ALTERNATIVELY, FOR PARTIAL SUMMARY JUDGMENT AND RESPONSE TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

WILLIAM LEWIS SESSIONS Texas State Bar No. 18041500
SESSIONS LAW FIRM, P.C. Republic Center, Suite 4400 325 North St. Paul Street Dallas, Texas 75201 Direct Telephone: (214) 217-8855 Direct Facsimile: (214) 723-5346 Email: lsessions@sstexaslaw.com

CHRISTOPHER B. HANBACK (Admitted Pro Hac Vice) D.C. Bar No. 232579
LYNN E. CALKINS (Admitted Pro Hac Vice) D.C. Bar No. 445854
RAFE PETERSEN (Admitted Pro Hac Vice) D.C. Bar No. 465542
HOLLAND & KNIGHT LLP 2099 Pennsylvania Avenue, N.W., Suite 100 Washington, D.C. 20006 Telephone: (202) 955-3000 Facsimile: (202) 955-5564 Email: christopher.hanback@hklaw.com Email: lynn.calkins@hklaw.com Email: rafe.petersen@hklaw.com

Case 3:09-cv-00412-B Document 237 Filed 05/16/11 Page 4 of 62 PageID 11242
TABLE OF CONTENTS
SUMMARY -- LOCAL RULE 56.3 ...................................................................................1 SUMMARY -- LOCAL RULE 56.4 ...................................................................................2 INTRODUCTION ...............................................................................................................3 ARGUMENT .......................................................................................................................8 I. STANDARD OF REVIEW .....................................................................................8 II. THE FEDERAL ACCESSIBILITY LAWS DO NOT MANDATE
BUILDING CODE-LIKE REQUIREMENTS. .......................................................9 A. Congress Did Not Mandate Any Particular "Standard" Or Code Of
Measurements That Must Be Met In Order To Comply With The FHA..............................................................................................................9 B. The ADA Has Prescriptive Standards, But Plaintiff's ADA Claims Are No Stronger. ........................................................................................11 III. THE PROPERTIES WERE DESIGNED AND CONSTRUCTED TO BE ACCESSIBLE, USABLE, AND ADAPTABLE...................................................11 IV. PLAINTIFF IS UNABLE TO MEET ITS AFFIRMATIVE PROOF BURDEN. ..............................................................................................................16 A. As A Matter of Law, Divergence From The "Safe Harbors" Is Not Prima Facie Evidence Of Discrimination. ................................................16 B. HUD Has No Authority To Establish The Burden Of Proof. ....................18 C. Plaintiff's Attempts To Heighten The Importance Of The Safe Harbors Through Legal Deference Is Without Merit. ...............................19 D. Plaintiff's Experts Rely Exclusively On A Standard That Is A DOJCreated Super Safe Harbor Which Far Exceeds The "Modest" Requirements Of The FHA. .......................................................................21 E. Plaintiff Conveniently Ignores That The FHA Allows For The Properties To Incorporate Four Features Of Adaptive Design. .................23 F. Plaintiff's Conclusions Must Be Limited To The Specific Units Inspected. ...................................................................................................26 V. EVEN IF PLAINTIFF HAS MET ITS AFFIRMATIVE PROOF BURDEN, DEFENDANTS HAVE PRESENTED SUBSTANTIAL EVIDENCE REFUTING PLAINTIFF'S ALLEGATIONS. ......................................................28 A. Defendants' Experts Found That The Properties Are Accessible And Usable. .......................................................................................................29 1. Two Experts Focus On A Proper Application Of The Safe
Harbors. ..........................................................................................29
i

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2. Two Other Experts Look to Other Creative, Objective Methods to Assess The Accessibility and Usability of the Properties. ......................................................................................30
B. There Is No "Uncontested" Evidence Of Violations. ................................31 C. Plaintiff Fails To Show A Pattern Or Practice Of Discrimination.............39
1. Plaintiff Hopes To Dodge All Evidence Regarding 20 Undisputed Properties. ...................................................................39
2. Defendants' Policies Are One of Inclusion and AntiDiscrimination................................................................................40
VI. DEFENDANTS ARE ENTITLED TO SUMMARY JUDGMENT CONCERNING THE TWENTY PROPERTIES PLAINTIFF CHOSE NOT TO PURSUE. .........................................................................................................41
VII. EVEN IF LIABILITY COULD BE PROVEN, PLAINTIFF IS NOT ENTITLED TO THE RELIEF IT SEEKS.............................................................43 A. Plaintiff's Claims For Penalties And Damages Are Time Barred..............44 B. Plaintiff's Claims For Injunctive Relief Are Inequitable. ..........................46 C. Retrofits Are Not An Appropriate Remedy For Sold Properties. ..............48
CONCLUSION ..................................................................................................................49
ii

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TABLE OF AUTHORITIES

CASES

Page(s)

Access Now, Inc. v. Ambulatory Surgery Center Group, Ltd., 2001 WL 617529 (S.D. Fla. May 2, 2001) ..................................................................37, 38, 39

Adams Fruit Co., Inc. v. Barrett, 494 U.S. 638 (1990)...........................................................................................................18, 19

Additive Controls & Measurement Systems, Inc. v. Flowdata, Inc., 96 F.3d 1390 (Fed. Cir. 1996)..................................................................................................49

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986)...................................................................................................................8

Ass'n for Disabled Americans, Inc. v. Concorde Gaming Corp., 158 F. Supp. 2d 1353 (S.D. Fla. 2001) ....................................................................................17

Baltimore Neighborhoods, Inc. v. Rommel Builders, Inc., 40 F. Supp. 2d 700 (D. Md. 1999) .....................................................................................25, 26

Celotex Corp. v. Catrett, 477 U.S. 317 (1986)...................................................................................................................8

Cherry v. City College of San Francisco, 2006 WL 6602454 (N.D. Cal. Jan. 12, 2006) ..........................................................................38

Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984)...........................................................................................................19, 20

Christensen v. Harris County, 529 U.S. 576 (2000)...........................................................................................................20, 21

Clark v. Takata Corp., 192 F.3d 750 (7th Cir. 1999) ...................................................................................................28

D'Lil v. Stardust Vacation Club, 2001 WL 1825832 (E.D. Cal. Dec. 21, 2001) .........................................................................39

Doggett v. United States, 505 U.S. 647 (1992).................................................................................................................46

Doty v. St. Mary Parish Land Co., 598 F.2d 885 (5th Cir. 1979) ...................................................................................................49

iii

Case 3:09-cv-00412-B Document 237 Filed 05/16/11 Page 7 of 62 PageID 11245
Equal Emp. Opportunity Comm'n v. Liberty Loan Corp., 584 F.2d 853 (8th Cir. 1978) ...................................................................................................47
Fair Hous. Council, Inc. v. Vill. of Olde St. Andrews, Inc., 210 Fed. Appx. 469 (6th Cir. 2006).........................................................................................11
Fair Hous. Council, Inc. v. Village of Olde St. Andrews, Inc., 250 F. Supp. 2d 706 (W.D. Ky. 2003) aff'd. 210 Fed. Appx. 469 (6th Cir. 2006) ............18, 38
Frotton v. Barkan, 219 F.R.D. 31 (D. Mass. 2003)................................................................................................48
Garcia v. Brockway, 526 F.3d 456 (9th Cir. 2008) .......................................................................................38, 44, 45
Garza Garcia v. Moore, 539 F. Supp. 2d 899 (S.D.Tex. 2007) ......................................................................................20
Gen. Elec. Co. v. Joiner, 522 U.S. 136 (1997).................................................................................................................28
Godwin Gruber, P.C. v. Lambert, 2004 WL 813229 (N.D. Tex. Apr. 13, 2004) ..........................................................................49
Gregory v. Ashcroft, 501 U.S. 452 (1991).................................................................................................................12
Hart Holding Co. v. Drexel Burnham Lambert Inc., 1992 WL 127567 (Del. Ch. May 28, 1992) .............................................................................12
Hartford Accident & Indemnity Co. v. Coasta Lines Cargo Servs., Inc., 903 F.2d 352 (5th Cir. 1990) ...................................................................................................42
Hayden v. Pataki, 449 F.3d 305 (2d Cir. 2006).....................................................................................................12
Impossible Electronic Techniques, Inc. v. Wackenhut Protective Systems, Inc., 669 F.2d 1026 (5th Cir. 1982) ...................................................................................................8
Independent Living v. Oregon Arena, 1 F. Supp. 2d 1124 (D. Or. 1998) ............................................................................................39
Int’l Bd. of Teamsters v. United States, 431 U.S. 324 (1977).................................................................................................................39
Kaltenbach v. Richards, 464 F.3d 524 (5th Cir. 2006) ...................................................................................................26
iv

Case 3:09-cv-00412-B Document 237 Filed 05/16/11 Page 8 of 62 PageID 11246
Koerner v. Aetna Healthcare, Inc., 92 Fed. Appx. 394 (9th Cir. 2003)...........................................................................................42
League of United Latin American Citizens, Council No. 4434 v. Clements, 999 F.2d 831 (5th Cir. 1993) ...................................................................................................42
Little v. Liquid Air Corp., 37 F.3d 1069 (5th Cir.1994) ......................................................................................................8
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986)...................................................................................................................9
MCI Telecomm. Corp. v. AT&T Co., 512 U.S 218 (1994)..................................................................................................................20
Meister v. Med. Eng'g Corp., 267 F.3d 1123 (D.C. Cir. 2001) ...............................................................................................28
Memphis Ctr. for Independent Living v. Grant, No. 01-2069 (W.D. Tenn. Oct. 2, 2003.) .................................................................................17
Monigold v. Berkebile, 2008 WL 623350 (N.D. Tex. March 5, 2008) .........................................................................19
Mosley v. JLG Industries, Inc., 189 Fed. Appx. 874 (11th Cir. 2006).......................................................................................42
Muñoz v. Orr, 200 F.3d 291 (5th Cir. 2000) ...................................................................................................28
Murphy Exploration & Prod. Co. v. U.S. Dep't of the Interior, 252 F.3d 473 (D.C. Cir. 2001) .................................................................................................18
National Fair Housing Alliance v. A.G. Spanos Construction, Inc., 542 F. Supp. 2d 1054 (N.D. Cal. 2008) ...................................................................................48
Nationwide Mutual Insurance Co. v. Cisneros, 52 F.3d 1351 (6th Cir. 1995) ...................................................................................................20
Oxford v. Williams Companies, Inc., 154 F. Supp. 2d 942 (E.D. Tex. 2001) .....................................................................................42
Parr v. Kapahulu Investments, Inc., 2000 WL 687646 (D. Haw. May 16, 2000) .......................................................................37, 39
Phillips v. Downtown Affordables, LLC, 2007 WL 2668637 (D. Haw. Sept. 5, 2009) ......................................................................25, 26
v

Case 3:09-cv-00412-B Document 237 Filed 05/16/11 Page 9 of 62 PageID 11247
Piazza's Seafood World, LLC v. Odom, 448 F.3d 744 (5th Cir. 2006) .....................................................................................................8
Platte River Wooping Crane Critical Habitat Maint. Trust v. FERC, 962 F.2d 27 (D.C. Cir. 1992) ...................................................................................................20
Precious Metals Assocs., Inc. v. Commodity Futures Trading Comm'n., 620 F.2d 900 (1st Cir. 1980) ....................................................................................................47
Rink v. Cheminova, 400 F.3d 1286 (11th Cir. 2005) .....................................................................................................27
Roberts v. Royal Atlantic Corp., 2010 WL 749944 (E.D.N.Y. Mar. 3, 2010) .............................................................................48
Rodriguez v. Investco, L.L.C, 305 F. Supp. Ed 1278 (M.D. Fla. 2004) ..................................................................................17
Rogers v. 66-36 Yellowstone Blvd. Cooperative Owners, Inc., 599 F. Supp. 79 (E.D.N.Y. 1984) ............................................................................................46
Sanford v. Coleman Realty, 573 F.2d 173 (4th Cir. 1978) ...................................................................................................46
Schaffer v. Weast, 546 U.S. 49 (2005)...................................................................................................................18
Schweitzer v. Advanced Telemarketing Corp., 104 F.3d 761 (5th Cir. 1997) ...................................................................................................12
Skidmore v. Swift Co., 323 U.S. 134 (1944).................................................................................................................21
SSP Partners v. Gladstrong Invs. (USA) Corp., 275 S.W. 3d 444 (Tex. 2009)...................................................................................................12
Texaco Puerto Rico Inc. v. Department of Consumer Affairs, 60 F.3d 867 (1st Cir. 1995) ......................................................................................................47
Texas v. United States, 497 F.3d 491 (5th Cir. 2007) ...................................................................................................20
Thompson v. Sand Cliffs Owners Ass'n, 1998 WL 35177067 (N.D. Fla. Mar. 30, 1998) .......................................................................48
Tolle v. Carroll Touch, Inc., 23 F.3d 174 (7th Cir. 1994) .....................................................................................................42
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Case 3:09-cv-00412-B Document 237 Filed 05/16/11 Page 10 of 62 PageID 11248
Topalian v. Ehrman, 954 F.2d 1125 (5th Cir. 1992) ...................................................................................................8
United States v. Day, 524 F.3d 1361 (D.C. Cir 2008) ................................................................................................27
United States v. Hess, 194 F.3d 1164 (10th Cir. 1999) ...............................................................................................45
United States v. Hallmark Homes, Inc., 2003 WL 23219807 (D. Idaho Sept. 29, 2003)..................................................................18, 40
United States v. Kass, 740 F.2d 1493 (11th Cir.1984) ................................................................................................45
United States v. Mead Corp., 533 U.S. 218 (2001)...........................................................................................................20, 21
United States v. Pacific Northwest Electric Inc., 2003 WL 24573548 (N.D. Idaho Mar. 21, 2003) ........................................................17, 40, 44
United States v. Second National Bank of North Miami, 502 F.2d 535 (5th Cir. 1974) ...................................................................................................47
United States v. Taigen & Sons, Inc., 303 F. Supp. 2d 1129 (D. Idaho 2003) ........................................................................18, 44, 45
United States v. W. Peachtree Tenth Corp., 437 F.2d 221 (5th Cir. 1971) ...................................................................................................40
Venturelink Holdings, Inc. v. Kirkpatrick & Lockhart, L.L.P., 2006 WL 2844121 (N.D. Tex. Oct. 2, 2006) .............................................................................8
White Buffalo Ventures, L.L.C. v. Univ. of Texas Austin, 420 F. 3d 366 (5th Cir. 2005) ..................................................................................................12
Whitmire v. Terex Telelect Inc., 390 F .Supp. 2d 540 (E.D. Tex. 2005) .......................................................................................8
Zenith Radio. Corp. v. Hazeltine Research, Inc., 395 U.S. 100 (1969).................................................................................................................49
STATUTES
28 U.S.C. § 2415............................................................................................................................45
28 U.S.C. § 2416(c) .......................................................................................................................44
28 U.S.C. § 2462............................................................................................................................44
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Case 3:09-cv-00412-B Document 237 Filed 05/16/11 Page 11 of 62 PageID 11249
42 U.S.C. §§ 3601–3619........................................................................................................ passim 42 U.S.C. §§ 12181–12189........................................................................................................1, 11 Tex. Civ. Prac. & Rem. Code Ann. § 16.008 ................................................................................48 OTHER AUTHORITIES 24 C.F.R. § 100.205 .................................................................................................9, 10, 32, 33, 35 53 Fed. Reg. 44992 ........................................................................................................................16 55 Fed. Reg. 24370 ........................................................................................................................16 56 Fed. Reg. 9472 .................................................................................................................. passim 59 Fed. Reg. 33362 ..................................................................................................................17, 22 72 Fed. Reg. 39540 ........................................................................................................................16 73 Fed. Reg. 63610 ........................................................................................................................18 Fed. R. Civ. P. 4(k) ........................................................................................................................49 Fed. R. Civ. P. 19(a)(1)............................................................................................................48, 49 Fed. R. Civ. P. 41(a) ..................................................................................................................... 42 Fed. R. Civ. P. 56(e) ........................................................................................................................8 Fed. R. Civ. P. 65(d) ......................................................................................................................49 Fed. R. Civ. P. 56(c) ........................................................................................................................8 Fed. R. Evid. 702 ...........................................................................................................................27 H.R. Rep. No. 100-711 ............................................................................................................10, 30 H. Rep. No. 1328 ...........................................................................................................................45
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Case 3:09-cv-00412-B Document 237 Filed 05/16/11 Page 12 of 62 PageID 11250
SUMMARY -- LOCAL RULE 56.3 For purposes of Defendants' cross-motion, Defendants summarize the elements of the claims and defenses on which summary judgment is sought as follows. Plaintiff alleges a pattern and practice of willful discrimination with the design and construction of 52 properties under two laws.1 To prevail, Plaintiff has the burden to prove that each Defendant has discriminated in the terms, conditions, or privileges of sale or rental of each dwelling at issue, or the provision of services or facilities in connection with such dwellings, because of a handicap. The legal definition of "discrimination" is whether Defendants failed to design and construct the covered buildings and facilities at issue to include:  at least one building entrance on an accessible route, unless it is impractical to do so because of the terrain or unusual characteristics of the site;  public use and common use portions that are readily accessible and usable;  doors designed to allow passage that are sufficiently wide to allow passage; and  premises containing the following features of adaptive design: (i) an accessible route into and through the dwelling; (ii) light switches, electrical outlets, thermostats, and other environmental controls located in accessible locations; (iii) reinforcements in bathroom walls to allow later installation of grab bars; and (iv) usable kitchens and bathrooms such that a wheelchair can maneuver about the space. 42 U.S.C.§ 3604(f)(3)(C). Plaintiff is unable to prove its claims as a matter of law. Plaintiff seeks to impose its own definition of discrimination based upon certain optional guidance approved by a federal agency. Congress did not mandate any prescriptive "standard" or absolute measurements for compliance with the FHA. In fact, the guidance applied by Plaintiff is not mandatory and exceeds the modest requirements of the FHA. Accordingly, divergence from those recommendations is not prima facie evidence of discrimination. The "safe harbors" are not entitled to legal deference to trump Congressional intent. Plaintiff ignores the impact of its delay of many years before bringing this action.
1The suit was bought pursuant to the Fair Housing Act, as amended, 42 U.S.C. §§ 3601–3619 ("FHA"), and the Americans with Disabilities Act, 42 U.S.C. §§ 12181–12189 ("ADA").
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Case 3:09-cv-00412-B Document 237 Filed 05/16/11 Page 13 of 62 PageID 11251
Instead, Plaintiff focuses exclusively on existing property conditions as of the date of inspection -- undaunted by evidence showing that the properties were designed and constructed in accordance with federal law and disregarding the effects of environmental and other maintenance issues (e.g., movement of the ground from soil expansion and contraction, wear and tear and renovations) occurring over the life of the properties since construction.
Even if Plaintiff's inspection methodology were given credence, at best, Plaintiff's claims must be limited to the small portion of the units Plaintiff's experts inspected as Plaintiff has no scientific basis for extrapolating its conclusions to any other units at the properties.
Plaintiff is unable to demonstrate any justification for pursuing this case in the first instance. Plainly, there is no pattern or practice of discrimination. Plaintiff has already waived its claims as to 20 properties and at the remaining 32 fail as a matter of law to demonstrate that discrimination was Defendants' usual practice. Plaintiff's own failure to proceed with this case in a timely manner demonstrates the lack of a need to pursue these Defendants.
Even if it were to prevail on the merits, Plaintiff should not obtain the relief requested as to certain properties. In addition to seeking to impose a bifurcation not contemplated by the Court, the relief claimed by Plaintiff, which includes civil penalties and compensatory damages, should be denied as time-barred for many properties. The injunctive relief Plaintiff seeks would be inequitable. Further, Defendants do not own any of the 32 properties, and many of the current property owners may be outside the jurisdiction of the Court.
SUMMARY -- LOCAL RULE 56.4 In response to Plaintiff's motion, there are multiple genuine issues of material fact in dispute. Accessibility and usability as contemplated by Congress are inherently fact driven concepts for which summary judgment is inappropriate. In a ploy to circumvent the jury,
2

Case 3:09-cv-00412-B Document 237 Filed 05/16/11 Page 14 of 62 PageID 11252
Plaintiff asserts that there are undisputed conditions at certain properties. There are not. Plaintiff's claims have been refuted entirely by one or more of Defendants' experts who rendered equally governing general opinions and property specific opinions, concluding that each of the properties are accessible to and usable by persons with disabilities. Although Plaintiff seeks judgment based on perceived pinholes in Defendants' reports, whenever an inspector did not provide a direct response to an item flagged by Plaintiff for a particular property, that item had already been refuted in a general report or by another one of Defendants' experts. (Defendants' Response to Conditions at 32 Properties (Ex. 1, App. 1-85.1)).2
In addition to Defendants' retained experts, hybrid and fact witnesses have made clear that the theories presented by Plaintiff's experts are not only nonsensical in light of the realities of construction and accessible design, but are specifically refuted by the facts and circumstances of how these properties were designed and constructed.
Plaintiff's motion should be denied. If judgment is not entered in favor of Defendants, this matter should be expeditiously set for a trial by jury.
INTRODUCTION This case is the culmination of a governmental investigation eclipsing a decade. Despite its best efforts -- combing through public documents, conducting multiple phases of property inspections, requiring production of hundreds of boxes of plans and construction documents, taking multiple depositions, and attempting to hunt down past and current disabled residents -Plaintiff has come up woefully short in meeting its affirmative burden. This case was not supported by evidence of discrimination when filed, and Plaintiff has failed to cobble together any evidence since. Indeed, Plaintiff was forced to concede that it has no evidence on 20 of 52
2 To avoid deluging the Court with paper, Defendants' Appendix does not include the property-specific reports for all properties. These are available on the electronic docket and Chambers has been provided courtesy copies of all reports during discovery. Nonetheless, if requested, Defendants will supplement the Appendix with all such reports.
3

Case 3:09-cv-00412-B Document 237 Filed 05/16/11 Page 15 of 62 PageID 11253
properties at issue sua sponte. Defendants should not be required to expend further time and expense in defending baseless accusations concerning the remaining properties.
Blinded by its own crusade, Plaintiff advances an extreme and unsupported interpretation of the requirements of the accessibility laws and willfully ignores obvious facts. Contrary to Plaintiff's bald accusations, the factual record demonstrates a careful and deliberate effort by Defendants to design and construct the properties to be accessible, usable, and adaptable for persons with disabilities and a commitment to meet the specific needs of disabled residents. Defendants' experts demonstrate that the properties are a model of compliance, and Plaintiff's claim to the contrary misapply federal law and ignore all practical realities of construction. Plaintiff's theory that there are undisputed accessibility issues is absurd. (Ex. 1, App. 1-85.1).
Plaintiff's conduct has been outrageous -- making allegations concerning construction and design decisions that took place decades ago while deliberately ignoring the implications of the passage of time. Plaintiff's sudden interest in these properties cannot reasonably be divorced from the reality that the design and construction of these properties was undertaken over a span of twenty years by hundreds of individuals working for a multitude of entities scattered across the country. While Plaintiff refuses to acknowledge it, the fact is that buildings, parking lots, sidewalks and other improvements age and respond to the natural environment in ways that require maintenance. This causes impacts to accessibility that are unrelated to the original design and construction. The sidewalks and parking areas have shifted due to soil and environmental conditions (e.g., soil with high clay content swells and shrinks); features of the properties have outlived their natural life or have fallen into disrepair; and new owners have undertaken routine renovations -- such as replacing door knobs and carpet, or adding new amenities. Although Plaintiff clings to the notion that these properties are static, it is simply
4

Case 3:09-cv-00412-B Document 237 Filed 05/16/11 Page 16 of 62 PageID 11254
absurd to ignore the simple fact that a property constructed 15 years ago is not the same today as it was then. Even though many of the changes are visually apparent (e.g., sidewalks have shifted and cracked) Plaintiff ordered their experts to ignore these obvious changes. Plaintiff cannot reasonably expect this Court to pretend compliance for a property built decades ago should be measured without accommodating for changes outside the control of Defendants.
Plaintiff misstates the law and ignores Congressional intent. The FHA does not include a standard of total accessibility; Congress made clear that the FHA does not require that every entrance, doorway, bathroom, parking space, and portion of buildings and grounds be accessible. Rather, the FHA requires that common areas and apartment units be designed to reasonably accommodate the needs of persons with disabilities -- not the need of every disabled person without regard to how extreme their disability might be. The latter is taken care of on an asneeded basis through adaptation of the particular feature. 3 Plaintiff's theory of total accessibility for all possible disabilities at the moment of design is legally erroneous and fundamentally misunderstands how a property is managed and needs are met in the real world.
Similarly, the FHA does not require that the ground underneath all apartment communities built since 1991 be leveled flat before construction could proceed. Such a prospect is financially prohibitive and often contrary to the laws of the local jurisdictions. Instead, the FHA allows multifamily properties to be legally designed and constructed with steps on walkways, with sidewalks that slope along with the terrain (no matter how steep), and with units and common space amenities that are not accessible to wheelchairs.
3In its zealotry to build a case, Plaintiff went so far as to have attorneys and experts copy license plates of cars with handicapped tags. (Ex. 2, App. 86-89). This blatant intrusion into the privacy of persons with disabilities is ironic given Plaintiff's stated goals. In contrast, Defendants have always welcomed and accommodated persons with disabilities as it is widely understood in the apartment industry that such persons are reliable and responsible longterm residents, who are desired by providers of conventional apartment housing.
5

Case 3:09-cv-00412-B Document 237 Filed 05/16/11 Page 17 of 62 PageID 11255
Plaintiff distorts the legal significance of technical assistance materials issued by the Department of Housing and Urban Development ("HUD"). Congress intentionally did not enact a national building code for multi-family housing, and HUD was never empowered to promulgate a prescriptive standard that could be held against developers to demonstrate noncompliance. Consistent with its limited authority, HUD has issued various technical assistance materials among which are "safe harbors" that may be relied on by those that seek explicit guidance for compliance. Such "safe harbors" were not meant to become binding standards or the minimum requirements for compliance; they plainly state so on their face. The law and legislative history demonstrates that Congress intended that there would be various methods for providing accessibility at multifamily apartment complexes and that no one "standard" must be met for demonstrating compliance. Further, the notion that the federal government can hold out a document as non-binding on publication and come back twenty years later and use that same document as a mandatory, minimum standard is a disturbing abuse of governmental authority.
Yet, Plaintiff's entire case is built on a "standard" that is a combination of all the suggested technical specifications of multiple safe harbors and other guidance documents. Use of this super safe harbor to catalogue "violations" deliberately twists the safe harbors in order to run up the score -- ultimately painting a deliberately misleading picture of compliance. As demonstrated by Defendants' reports, Plaintiff's inspection teams did anything possible to reach the conclusion that an element was not in compliance, ignoring more lenient criteria, accepted variances, and/or empirical research demonstrating that the condition is accessible.
Plaintiff lacks factual foundation for the allegation that there was a pattern and practice of "willful" and "intentional" discrimination. The communities were designed and constructed over a 20 year period, across 19 states, with over 600 individuals working at more than 100 different
6

Case 3:09-cv-00412-B Document 237 Filed 05/16/11 Page 18 of 62 PageID 11256
professional design firms. Plaintiff ignores the thousands of documents relating to the design and construction of the properties as well as the deposition testimony of multiple fact witnesses. Such evidence demonstrates a careful and deliberate effort by Defendants to meet the requirements of the accessibility laws running from the concept stage of a project to final construction -- with multiple responsible individuals, reliable professionals, and layers of review. In fact, the evidence shows that in designing these properties, Defendants' architects and design professionals mostly relied on the FHA Guidelines safe harbor that Plaintiff holds so dear. In direct contrast to Plaintiff's accusations of inaccessibility, the properties have provided housing for thousands of residents, many of whom have disabilities.
After putting Defendants through vigorous discovery for all 52 properties, following the close of discovery, Plaintiff has indicated it will not pursue claims against 20 properties, including those gone over with a fine tooth comb by their inspection teams. Given the stage of this case, Plaintiff cannot cavalierly pullback its claims as to these properties without prejudice.
Finally, although well aware of the fact, Plaintiff's request for relief asks this Court to ignore the fact that Defendants has not owned or managed any of the 32 properties for many years and in some instances, for more than a decade. In many cases, ownership of such properties has turned over more than once. Despite this substantial deficiency, Plaintiff continues to prosecute this action without naming the current owners of those properties as parties to this action.
With the factual record here, Plaintiff's continued assertions of discrimination against persons with disabilities are unbelievable. Defendants cannot be found liable, and judgment should be summarily entered in their favor.
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Case 3:09-cv-00412-B Document 237 Filed 05/16/11 Page 19 of 62 PageID 11257
ARGUMENT I. STANDARD OF REVIEW
Federal Rule of Civil Procedure 56 provides that summary judgment shall be granted if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. F.R.C.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). Summary judgment is mandated "after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Piazza's Seafood World, LLC v. Odom, 448 F.3d 744, 752 (5th Cir. 2006).
Summary judgment is appropriate unless the nonmoving party can show affirmative evidence of disputed material facts. F.R.C.P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). While all of the evidence is viewed in a light most favorable to the motion's opponent, reliance on conclusory allegations to refute a motion is insufficient to allow the claim to continue to trial. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994) (en banc); Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir. 1992).
However, especially where a motion for summary judgment raises mixed question of fact and law, the court's role is not to act as fact finder and resolve factual issues. Whitmire v. Terex Telelect Inc., 390 F.Supp. 2d 540 (E.D. Tex. 2005). Likewise, summary judgment is inappropriate, even if there are no disputed facts, where reasonable minds could differ on the inferences arising from any undisputed facts. Impossible Electronic Techniques, Inc. v. Wackenhut Protective Systems, Inc., 669 F.2d 1026, 1031 (5th Cir. 1982); See also Venturelink Holdings, Inc. v. Kirkpatrick & Lockhart, L.L.P., Civ. Action No. 3:05-CV-2103-L, 2006 WL 2844121 (N.D.Tex. Oct. 2, 2006). Rather, the evidence of the non-moving party is to be believed; all justifiable inferences are to be drawn in its favor; and any and all doubts as to the
8

Case 3:09-cv-00412-B Document 237 Filed 05/16/11 Page 20 of 62 PageID 11258
existence of a factual dispute are to be resolved against the moving party. Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
II. THE FEDERAL ACCESSIBILITY LAWS DO NOT MANDATE BUILDING CODE-LIKE REQUIREMENTS.
Plaintiff's Complaint includes two separate counts -- one for alleged violations of the
FHA and another for alleged violations of the ADA. Because this action involves the design and
construction of multi-family housing complexes (i.e., apartment buildings), almost all issues
contested by Plaintiff relate to questions of compliance with the FHA. The claims under the
ADA relate exclusively to the few issues in public areas (e.g., the leasing center and its parking).
A. Congress Did Not Mandate Any Particular "Standard" Or Code Of Measurements That Must Be Met In Order To Comply With The FHA.
On its face, the FHA has only six broad requirements of accessibility, usability, and adaptability, requiring "covered units"4 and the public and common areas to have the following:
(i) the public use and common use portions of such dwellings are readily accessible to and usable by handicapped persons; (ii) all the doors designed to allow passage into and within all premises within such dwellings are sufficiently wide to allow passage by handicapped persons in wheelchairs; and (iii) all premises within such dwellings contain the following features of adaptive design: (I) an accessible route into and through the dwelling; (II) light switches, electrical outlets, thermostats, and other environmental controls in accessible locations; (III) reinforcements in bathroom walls to allow later installation of grab bars; and (IV) usable kitchens and bathrooms such that an individual in a wheelchair can maneuver about the space. 42 U.S.C. § 3604(f)(3)(C)(i)-(iii).5
Congress did not mandate any specific technical design criteria in order to satisfy the
requirements of the Act and did not authorize any federal entity with the authority to promulgate
binding standards or to enact proscriptive technical criteria that builders must follow. Instead,
4Not every apartment unit is subject to the FHA. Congress defined "covered multifamily dwellings" as "(A) buildings consisting of 4 or more units if such buildings have one or more elevators; and (B) ground floor units in other (non-elevatored) buildings consisting of 4 or more units." 42 U.S.C. § 3604(f)(7). 5In addition to those six features, the entrance to the building itself must be accessible, 24 C.F.R. § 100.205(a).
9

Case 3:09-cv-00412-B Document 237 Filed 05/16/11 Page 21 of 62 PageID 11259
Congress empowered HUD with the limited authority to "provide technical assistance to States and units of local government and other persons to implement the requirements of" the Act. See 42 U.S.C. § 3604(f)(5)(C).
Congress specifically rejected "a standard of total accessibility [that] would require that every entrance, doorway, bathroom, parking space, and portion of buildings and grounds be accessible" choosing instead "to use a standard of 'adaptable' design" that would "provide usable housing for handicapped persons without necessarily being significantly different from conventional housing." (H. R. Rep. No. 100-711, at 18, reprinted in 1988 U.S.C.C.A.N. 2173, 2179, 2187 (Ex. 3, App. 88-91)). The requirements of the FHA are "modest". (Id. at 2179).
Congress did, however, provide some explicit guidance for those seeking clear measures of compliance. First, compliance with the requirements of the American National Standards Institute Inc. ("ANSI") accessibility standards (commonly known as ANSI A117.1) "suffices to satisfy" the FHA. 42 U.S.C. § 3604(f)(4). Yet, while Congress assured designers that if they follow ANSI 117.1 they will meet the Act's requirements, Congress made clear that this section of the Act "is not intended to require that designers follow this standard exclusively, for there may be other local or state standards with which compliance is required or there may be other creative methods of meeting these standards." (H.R. Rep. No. 100-711, at 27 n.71 (Ex. 3, App. 90) (emphasis added)). Second, Congress established that if a municipality has incorporated "into its laws the requirements set forth in paragraph (3)(C)," then compliance with the municipal law satisfies the requirements of the FHA. 42 U.S.C. § 3604(f)(5)(A).6
Hence, the sole dispositive question at issue in an FHA design and construction case is whether the dwelling units and common areas as designed and constructed are reasonably
6See also 24 C.F.R. § 100.205(f). Numerous states, including Texas, Massachusetts and California have accessibility laws and codes that mirror and/or exceed the federal requirements.
10

Case 3:09-cv-00412-B Document 237 Filed 05/16/11 Page 22 of 62 PageID 11260
accessible to most persons with disabilities. See Fair Hous. Council, Inc. v. Vill. of Olde St. Andrews, Inc., 210 Fed. Appx. 469, 482 (6th Cir. 2006).
B. The ADA Has Prescriptive Standards, But Plaintiff's ADA Claims Are No Stronger.
Plaintiff makes a half-hearted effort to assert that 15 of the properties also violate the ADA. (Dkt. #236 at 8-9, 35-36.) HUD's limited authority under the FHA is illustrated by a comparison with the authority Congress delegated to the Department of Justice to promulgate regulations under the ADA. Cf. 42 U.S.C. § 12186 (b) ("Not later than 1 year after the date of the enactment of this Act, the Attorney General shall issue regulations in an accessible format to carry out the provisions of this title…") with 42 U.S.C. § 3604(f)(5)(C) (issuance of "technical assistance"). Regardless, Defendants' experts have contested all allegations of ADA violations in both the main reports and property-specific appendixes which illustrate serious questions concerning the methodology of Plaintiff's experts (e.g. measurement of slope), and their interpretation of the underlying standard (e.g. failure to recognize construction tolerances) . Hence, there are clearly material facts at issue with regard to the ADA. III. THE PROPERTIES WERE DESIGNED AND CONSTRUCTED TO BE
ACCESSIBLE, USABLE, AND ADAPTABLE. Plaintiff moves for a finding of discrimination while ignoring the many facts that make clear that Defendants designed and constructed the properties in compliance with the federal accessibility laws. This is proven by the thousands of documents produced from the development and construction files, the expert reports, and the fact witness testimony. The following summarizes such facts presented during discovery. It is empty rhetoric to assert that "Defendants (collectively "JPI") have discriminated against persons with disabilities by engaging in a longstanding pattern or practice—dating back nearly two decades—of building multi-family housing complexes with extensive and significant
11

Case 3:09-cv-00412-B Document 237 Filed 05/16/11 Page 23 of 62 PageID 11261
accessibility barriers, in violation" of the FHA. (Dkt. #236 at 1).
First, while Defendants will not expend significant resources herein contesting Plaintiff's
new found theory that the Defendants are all acting as single, integrated business enterprise
known as JPI, there is no legal or factual basis for Plaintiff's assertion. (Dkt. #236 at 2-3, 38-40).
This theory of liability was not presented in the Complaint. (Dkt. #1). The theory of liability is
expressly not recognized by the law of either Texas or Delaware which governs the Defendants.
See SSP Partners v. Gladstrong Invs. (USA) Corp., 275 S.W.3d 444, 456 (Tex. 2009); Hart
Holding Co. v. Drexel Burnham Lambert Inc., 1992 WL 127567 (Del. Ch. May 28, 1992).
Defendants' 30(b)(6) designee made clear that the entities were not integrated as one. (Motsenbocker Dep. (Vol. II), 51:18-52:19 (Ex. 4, App. 93-95)).7 And, nothing in the principle
case relied on by Plaintiff, Schweitzer v. Advanced Telemarketing Corp., 104 F.3d 761 (5th Cir.
1997), changes the inapplicability of this theory here; the Schweitzer decision was limited to the context of employment discrimination cases, not cases brought under the FHA.8
Second, during the 30(b)(6) deposition for the named Defendants, David Motsenbocker
explained to Plaintiff that Defendants undertook many efforts to meet the requirements of the
accessibility laws. Foremost, Mr. Motsenbocker testified that Defendants "always. . . designed
and built properties in accordance with Fair Housing and ADA." (Motsenbocker Dep. (Vol. I),
52:24-53:1 (Ex. 5, App. 99-100). He made clear that it is a requirement of the contracts of the
7Instead, at best, one entity provided employees, accounting, and tax services to various Defendant entities, a fact which falls far short of showing that the entities were integrated as one. 8 The Trevino test, on which Schweitzer is based, relates to whether two entities can be treated as one employer under Congress's definition of "employer" in Title VII. Unlike the term "employer" used in Title VII, there is no term of art that is essential to determine the actor potentially liable for discrimination under the FHA or ADA. Rather, as established by Congress, the question of whether an entity is liable is whether that entity designed and constructed the multifamily housing developments at issue. 42 U.S.C. § 3604(f)(2) & (3)(C). When Congress has not explicitly spoken on an issue, a court must not look beyond the state law that governs. Gregory v. Ashcroft, 501 U.S. 452, 456-470 (1991); White Buffalo Ventures, LLC v. University of Texas at Austin, 420 F.3d 366, 370 (5th Cir. 2005); Hayden v. Pataki, 449 F.3d 305 (2d Cir. 2006). In the FHA, Congress addressed preemption of state laws and was clear that, with the exception of laws permitting housing discrimination, it was not Congress's intent to preempt the rights of the states. 42 U.S.C. § 3615; 42 U.S.C. § 3604(f)(5). As Congress did not clearly indicate an intent to preempt (and indeed sent the opposite message), state law on business organizations applies.
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professionals that they design properties "in accordance with all federal, state and local laws including Fair Housing" (it was "expected" of them) and that "there was lots of different people involved in the process, but the local developer had responsibility for overseeing compliance with Fair Housing, ADA, state and local laws including Fair Housing." (Id. at 52:24-53:22 (Ex. 5, App. 99-100)). 9 Responsibility for accessibility was not slotted to one person but rather, "overseeing accessibility at the properties was a lot of people's responsibility." (Id. at 50:9-11 (Ex. 5, App. 99); (see generally id., 50:9-59:13 (Ex. 5 App. 99-101)).
Mr. Motsenbocker relayed Defendants' compliance efforts and the multiple layers of accessibility review from the inception of the project to final construction. (Motsenbocker Dep. (Vol I.), 53:23-59:13 (Ex. 5, App. 100-101)). Compliance reviews were done "early on" and Defendants "had the architects that were charged with designing it in accordance with state and local laws", "the local developer and his team responsible for overseeing that process," and "the construction team that was responsible for overseeing the construction of the property in accordance with the plans, which would have been designed in accordance with federal, state and local laws." (Id. at 54:16-54:23 (Ex. 5, App. 100). Defendants "created checklists for use during the design and construction phase to assist our construction and development personnel in overseeing the designers" and had "a closing review . . . at the end of the design stage." There was considerable "back and forth as the plans are getting refined" before start of construction. (Id. at 55:8-59:13 (Ex. 5, App. 100-101)).10
Mr. Skarzenski, an architect at an architectural firm that designed a large number of the
9See also Motsenbocker Dep. (Vol. I),162:11-164:20 (Ex. 5, App. 105) (discussing the evolution of the process); excerpts of contracts and correspondence with design professionals. (Ex. 6, App. 113-149; Ex. 7, App.150-152; Ex. 8, App. 153-212; Ex. 9, App. 107:14-112:5; App. 231-232; Ex. 10, App. 66:2-68:2, App. 259). 10An example of the checklist is attached as are other documents showing the "back and forth" that took place through this process are attached as Ex. 11, App. 263-272. (Meacham Dep. (Vol. I), 124:19-138:9 (Ex. 9, App 235239)). This is but a small percentage of the documents produced.
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properties at issue, confirmed the effectiveness of this back-and-forth process. (Skarzenski Dep., 41:3-45:16; 46:8-48:9 (Ex. 12, App. 277-78). He stressed that in his role reviewing the plans for accessibility compliance, he would review the plans "to the building code in its entirety, and then also to the ANSI '86 and the Fair Housing Guidelines in its entirety." (Id. at 46:11-47:11 (Ex. 12, App. 278)). Another architecture firm, Niles Bolton, described a similar process, explaining that "every project that we have designed has been designed to an accessibility standard…" (Meacham Dep. (Vol. I) 37:18-21, 38:2-49:10, 53:1-54:22, 61:5-63:22, 97:9-169:18 (Ex. 9, App. 22-26, 228-47); Meacham Dep. (Vol. II) at 19:15-23, (Ex. 13, App. 288)).
Professionals designed the properties to a design standard since day one. See, e.g. Decl. of J. O'Connor, III, Ex. 14, App. 320-21 (noting the use of Guidelines for Jefferson at Preston, which was completed in 1991). In doing so, at most properties, the Guidelines and ANSI 86 were the primary standards utilized by the design professionals as guidance.11 (Motsenbocker Dep. (Vol. I), 177:14-18, 184:6-191:7 (Ex. 5, App. 106-09)). Likewise, architects must also take into consideration all local regulations which often establish specific accessibility standards. (Meacham Dep. (Vol. I), 10:25-41:5, 112:17-113:17 (Ex. 9, App. 214-223, 232-233); Skarzenski Dep., 35:2-36:12, 41:24-43:9 (Ex. 12, App. 276-277)).
Defendants worked closely with the architect in ensuring accessibility at the properties: It would be the soup-to-nuts discussion, what code are we using, how are we approaching compliance, have you got the guidelines, in terms of JPI guidelines, you know, are there any exceptions; what is the county, the local jurisdiction going to require in addition to, you know, what is required under the federal standards. (Meacham Dep. (Vol. I) 104:18-105:3 (Ex. 9, App. 230-31)). Mr. Knight, a civil engineer, described the role of the civil engineer and the efforts to ensure that accessibility was addressed
11Use of such "objective" standards is reflected in the architectural plans, other documents, and fact testimony as shown in the attached summery chart. (Ex. 15, App. 322-330). Another architect, not deposed but disclosed to Plaintiff, confirmed that it too looked to safe harbors in designing the properties. See Looney Ricks Kiss Dec. (Ex. 57, App. 1204-1206).
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in relation to issues such as slope and grade, soil, sidewalk placement, and parking. (Knight Dep. (Vol. I), 12:23-16:9; 20:23-25:15; 26:17-28:22; 30:21-36:16) (Ex. 10, App. 252-58)).
As a precautionary measure, while allowing the consultants to exercise professional judgment, Defendants requested their architects and other design professionals to utilize the safe harbors in an effort to ensure compliance with the Act. (Motsenbocker Dep. (Vol. I), 177:1-13 (Ex. 5, App. 106)). Defendants did not allow construction to commence until there was a letter from a consultant certifying that, based on their company's review of the plans and designs, the plans met the federal accessibility requirements. (Id. at 55:25-56:25 (Ex. 5, App. 100)).
These diligent efforts did not cease with the design phase. Throughout construction, either the architecture firm, an expert, or Defendants themselves would conduct inspections for quality control and conformance with the plans and the accessibility laws. (Meacham Dep. (Vol. I), 111:4-112:5 (Ex. 9, App. 232); Skarzenski Dep. 81:9-83:18; 249:5-249:17; 249-249:17 (Ex. 12, App. 283)).
As the processes evolved, Defendants took another proactive step when, in 2001, Mr. Skarzenski designed a checklist based on ANSI 86, the ADAAG, the Guidelines, and the "pet issues" frequently identified by plaintiff's experts in other litigation. (Skarzenski Dep. 247:13248:3 (Ex. 12, App. 282-283); Motsenbocker Dep. (Vol. I), 118:1-120:6 (Ex. 5, App. 104)). The checklist was used throughout the design and construction process along with the normal process of internal review and "back and forth" with the architects. (Id., at 57:2-59:12 (Ex. 5, App. 101)).12 In 2002, the checklist became the standard that was used by Defendants and their thirdparty design professionals to ensure that the properties were accessible. (Id., at 178:4-25, 184:3200:10 (Ex. 5, App.111)). In turn, at the end of construction after multiple inspections, the third-
12The checklists expanded over time to address more issues that commonly arose. (Id. at 184:16-185:6 (Ex.5, App. 107); Skarzenski Dep., 250:17-252:18 (Ex. 12, App. 283)). This was a "belts and suspenders" approach designed to cover all bases due to the constant threat of litigation. (Id., 284:24-285:23 (Ex. 12, App. 284)).
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party reviewer issued another certification letter stating that "the construction of this project meets Fair Housing and ADA." (Id., at 58:11-59:13 (Ex. 5, App.100)). IV. PLAINTIFF IS UNABLE TO MEET ITS AFFIRMATIVE PROOF BURDEN.
Hoping to dodge the factual evidence proving the contrary, Plaintiff seeks to change the metric. Plaintiff attempts to satisfy its burden by merely showing that certain features were found to have dimensions that vary from measurements set forth in a combination of three "safe harbors" -- documents that state on their face that they are not meant for this purpose. Other than comparing the properties to such safe harbors, no effort was made to determine whether the dwelling units or common areas at the properties meet the actual seven requirements of the FHA.
A. As A Matter of Law, Divergence From The "Safe Harbors" Is Not Prima Facie Evidence Of Discrimination.
Consistent with its authority to issue "technical assistance," since 1991, HUD has recognized ten different "safe harbors". 72 Fed. Reg. 39540, 39541-42 (July 18, 2007).13 Among those ten, in March 1991, HUD issued the Guidelines.14 In the preamble, HUD clearly stated that "the Guidelines are not mandatory, nor do they prescribe specific requirements which must be met, and which, if not met, would constitute unlawful discrimination under the Fair Housing Act." 56 Fed. Reg. at 9473 (emphasis added); see also 53 Fed. Reg. 44992, 45004 (Nov. 7, 1988). Merely a safe harbor, the Guidelines "simplify compliance with the [FHA] by providing guidance concerning what constitutes acceptable compliance with the Act." 56 Fed. Reg. at 9472. 15 Hence, the "safe harbors" are just that -- protection for those seeking clear
13HUD has not "issued regulations recognizing the safe harbors," (Dkt. #236 at 15). Safe harbors are not codified in the Code of Federal Regulations, can be changed at HUD's whim, and have no force of law. 14HUD, Notice of Final Fair Housing Accessibility Guidelines, 56 Fed. Reg. 9472-9515 (Mar. 6, 1991)[not even published in the current CFR]. 15Compliance with the Guidelines "shall be a basis for a determination that there is no reasonable cause to believe that a discriminatory housing practice. . . has occurred or is about to occur in connection with the investigation of complaints filed with [HUD] . . . ." 56 Fed. Reg. 9478. Builders can comply with the FHA without meeting the Guidelines as “the statute itself is the safest guide”. 55 Fed. Reg. 24370 (June 15, 1990).
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measures of compliance -- not an inflexible directive forming the basis for liability. Rodriguez v. Investco, L.L.C., 305 F.Supp.2d. 1278, 1282, fn. 15 (M.D. Fla. 2004); Ass'n for Disabled Americans, Inc. v. Concorde Gaming Corp., 158 F.Supp.2d 1353, 1362 (S.D. Fla. 2001).
Plaintiff's core theory is the Guidelines form the "minimum" baseline of compliance and provide "precise instructions for what is necessary to make a feature accessible under the FHA." (See Dkt. # 236 at 20). Yet, in adopting the Guidelines, HUD made clear that the agency "has not categorized the final Guidelines as either performance standards or minimum requirements. The minimum accessibility requirements are contained in the Act." 56 Fed. Reg. at 9478 (emphasis added). Similarly, "a dwelling unit that complies fully with the ANSI Standard goes beyond what is required by the [FHA]," and is "more stringent." 56 Fed. Reg. at 9476 (emphasis added). Thus, it has always been clear that "builders and developers may choose to depart from the Guidelines and seek alternate ways to demonstrate that they have met the requirements of the Fair Housing Act." Id. at 9473; 59 Fed. Reg. 33362 (1994); United States v. Pacific Northwest Electric Inc., No. 01-019, 2003 WL 24573548, *12 (N.D. Idaho Mar. 21, 2003). Given HUD's prior statements (and limited authority), it is abhorrent that the federal government seeks, as much as twenty years after design, to argue that the specifications of the Guidelines are the "minimum" standard of compliance or "strict standards" that must be met. (Dkt. #236 at 17).
Courts assessing claims brought under the FHA confirm that Plaintiff has ignored HUD's prior stated view of the Guidelines. The fact a property does not strictly conform to the Guidelines "does not constitute unlawful discrimination." Memphis Ctr. for Independent Living v. Grant, No. 01-2069, at 7 (W.D. Tenn. Oct. 2, 2003) (slip op.); Pacific Northwest Electric Inc., 2003 WL 24573548 at *12 (explaining that because Congress did not delegate HUD the authority to promulgate specific regulations for design and construction compliance and in light
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of HUD's own characterization of the Guidelines "the fact that a covered complex does not comply with the HUD 'guidelines' does not establish a violation of the FHA").
Given that the safe harbors do not establish a minimum requirement for compliance, failure to meet them alone cannot logically create a rebuttable presumption, a prima facie case, or a per se violation of the FHA. See, e.g. Fair Hous. Council, Inc. v. Village of Olde St. Andrews, Inc., 250 F. Supp. 2d 706, 720 (W.D. Ky. 2003), aff'd. 210 Fed. Appx. 469 (6th Cir. 2006); United States v. Taigen & Sons, Inc., 303 F. Supp. 2d 1129, 1151 (D. Idaho 2003).16 Accessibility itself is the ultimate touchstone by which conformity with the FHA is determined. Taigen & Sons, Inc., 303 F. Supp. at 1151.
B. HUD Has No Authority To Establish The Burden Of Proof. Plaintiff's request that the Court defer to HUD's interpretation of what establishes a prima facie case, (Dkt. #236 at 16), improperly asks this Court to relinquish its own role. It is well established that the allocation of the burden of proof is decided by Congress or reserved for the courts. Schaffer v. Weast, 546 U.S. 49, 57-58 (2005). The basis for Plaintiff's extreme position is an excerpt of a federal register notice taken out of context. (Dkt. #236 at 16) (citing 73 Fed. Reg. 63614). That notice pertains not to the standard for summary judgment, but acceptance of the 2003 version of ANSI as a safe harbor. 73 Fed. Reg. 63610. Moreover, as Congress established [the FHA] enforcement scheme independent of HUD, "it would be inappropriate to consult executive [or agency] interpretations" of how such enforcement should be carried out, including to the appropriate burden of proof. Adams Fruit Co., Inc. v. Barrett, 494 U.S. 638 (1990). 494 U.S. at 650; see also Murphy Exploration & Prod. Co. v. U.S. Dep't of the Interior, 252 F.3d 473, 478-79 (D.C. Cir. 2001). HUD's delegated authority to provide "technical
16Cf. United States v. Hallmark Homes, Inc., No. 01-432, 2003 WL 23219807, at *8 (D. Idaho Sept. 29, 2003) (expert noted not only variations from the Guidelines but also failure to "comply with any recognized accessibility standard" and, a professional opinion that the property was not accessible or usable by persons with disabilities).
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assistance" "does not empower [HUD] to regulate the scope of the judicial power vested by the [FHA]." Adams Fruit Co., 494 U.S. at 650. Plaintiff's expert opinions concerning accessibility are limited to whether the features meet the safe harbors.17 Thus, as a matter of law, Plaintiff is unable to meet its burden of proof.
C. Plaintiff's Attempts To Heighten The Importance Of The Safe Harbors Through Legal Deference Is Without Merit.
Plaintiff attempts to justify its theory of the case by arguing that HUD's interpretation of the FHA as "contained in its regulations and in the Guidelines is entitled to great deference. . . ." (Dkt. #236. at 19-21). This position fundamentally mischaracterizes the authority Congress delegated to HUD and ignores the most basic principles of administrative law.
In determining whether the Court should defer to HUD's interpretation of the FHA, the first question is whether "Congress has directly spoken to precise claims at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress." Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842 (1984)). By contrast, a court will defer to an agency's construction of a statute only if (1) Congress "has not directly addressed the precise question," (2) the agency has acted pursuant to an express or implicit delegation of authority, and the agency's interpretation of the statute is "reasonable," rather than "arbitrary, capricious, or manifestly contrary to the statute," and (3) it appears that Congress delegated authority to the agency generally to make rules carrying the force of law and the agency interpretation claiming deference was promulgated in the exercise of that authority." See Chevron, 467 U.S. at 843-45; see also Monigold v. Berkebile, No. 07-0750, 2008 WL 623350 (N.D. Tex. March 5, 2008);
17Mr. Catlin made clear that LCM was looking for compliance with the safe harbors, not accessibility. (Catlin Dep., at 215:5-216:24 (Ex. 18, App. 365) (disagreeing with the characterization that the safe harbors were used to determine accessibility and clarifying that they were solely used to demonstrate compliance)).
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Garza Garcia v. Moore, 539 F. Supp. 2d 899 (S.D.Tex. 2007). Thereafter, the Supreme Court clarified Chevron, holding that a court should defer to an
agency's interpretation of a statute only "when it appears that Congress delegated authority to the agency generally to make rules carrying the force of law, and that the agency interpretation claiming deference was promulgated in the exercise of that authority." United States v. Mead Corp., 533 U.S. 218, 226-227 (2001); Christensen v. Harris County, 529 U.S. 576, 587 (2000) ("Interpretations ... contained in policy statements, agency manuals, and enforcement guidelines, all of which lack the force of law--do not warrant Chevron-style deference.").
Furthermore, where an agency's actions are "inconsistent with a statutory mandate," they cannot be given Chevron deference. Nationwide Mutual Insurance Co. v. Cisneros, 52 F.3d 1351, 1359 (6th Cir. 1995). Administrative agencies are "bound, not only by the ultimate purposes Congress has selected but by the means it has deemed appropriate, and prescribed for the pursuit of those purposes." MCI Telecomm. Corp. v. AT&T Co., 512 U.S 218, 231 n.4 (1994); see also Texas v. United States, 497 F.3d 491, 501(5th Cir. 2007) (agency regulations exceeding the scope of remedial authority delegated to the agency are not entitled to deference); Platte River Wooping Crane Critical Habitat Maint. Trust v. FERC, 962 F.2d 27, 33 (D.C. Cir. 1992) (appeals to a statute's broad purposes not proper).
Contrary to Plaintiff's statement, HUD was not delegated authority to issue proscriptive enforcement standards and the Guidelines do not set forth requirements that have the force of law. (Dkt. #236 at 20). The limitations on Congress's delegation of authority to HUD are clear -- HUD is only authorized to provide "technical assistance," 42 U.S.C. § 3604(f)(5)(C). In HUD's own words, "[t]here is no statutory authority to establish one nationally uniform set of accessibility standards." 56 Fed. Reg. at 9478.
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The Guidelines lack the import Plaintiff seeks to grant them. They constitute mere "recommended specifications,”56 Fed. Reg. at 9499, and do not provide mandatory, or even presumptive, design specifications "which must be met." Id. at 9473. The court need not defer to an agency's interpretation when "the regulation itself indicates that its command is permissive and not mandatory." Christensen, 529 U.S. at 588. In issuing the Guidelines, HUD did not “set out with a lawmaking pretense in mind. . . .” Mead, 533 U.S. at 233. They are, therefore, “beyond the Chevron pale,” and neither command nor allow presumptive deference. Id. at 234.
Likewise, the Design Manual is not entitled to deference as an authoritative interpretation of the FHA's requirements under Skidmore v. Swift Co., 323 U.S. 134 (1944). Informal agency interpretations such as this are entitled to respect under Skidmore only when they are persuasive, and then only in an amount proportional to the agency's "power to persuade."18 323 U.S. at 140.
The Design Manual is not "persuasive" under Skidmore. It was written by a third-party contractor, it states on its face that it is a non-mandatory "alternative", and like the other safe harbors, contains mere "recommendations" or "suggestions" that explicitly exceed the FHA's "modest requirements". Design Manual at 2 (Ex. 19, App. 372). Therefore, to use it to conclusively establish what is minimally necessary for determining accessibility under the FHA or to establish a prima face case of compliance is patently unreasonable.
In sum, the attempt to characterize HUD's technical assistance authority as authorizing the agency to establish mandatory minimum requirements and to shift burdens is contrary to Congressional intent, and thus cannot be given deference.
D. Plaintiff's Experts Rely Exclusively On A Standard That Is A DOJ-Created Super Safe Harbor Which Far Exceeds The "Modest" Requirements Of The FHA.
18The persuasive value of informal agency interpretations is assessed based on "the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking control." Skidmore, 323 U.S. at 140.
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Plaintiff banks its entire theory of the case on the convenient but misguided approach that
an "uncontested" violation may be inferred where measurement of an existing conditions does
not meet a dimension set forth in a combination of multiple safe harbors. In doing so, Plaintiff
effectively created a new super "safe harbor" far above the FHA. Hence, even if the Court were
inclined to find that the "safe harbors" have some persuasive value, the newly concocted metric
dictated by Plaintiff's counsel does not.
Plaintiff hired Ken Schoonover, Frank Colby, Gina Hilberry, and four individuals from LCM Architects (John Caltin, Doug Mohnke, Douglas Anderson, and John Ritzu).19 Although each of the experts acknowledged that they take different approaches in other matters,20 the
inspectors defined "violations" by piecing together multiple documents:
 LCM cited "violations" when they found variations from the Guidelines, ANSI A117.1 1986 (ANSI 1986) as interpreted through the Guidelines, the Design Manual; the 1994 Guidelines Q&A,21 and the ADA Standards. (Dkt. #45-2 at 2-3, 11).
 Mr. Schoonover indicated that he flagged violations where he found inconsistencies with the Guidelines, the 1994 Guidelines Q&A, ANSI 1986, "as referenced by the Guidelines", the Design Manual, and the ADA Standards. (Dkt. #47-2 at 13-16).
 Ms. Hilberry found violations based on the Fair Housing Act, the Guidelines, the FHA regulations, "HUD's technical assistance materials"; ANSI A-l 17.1 1986 "as referenced by the [Guidelines]"; and the ADA Standards. (Dkt. #50-2 at 2, 8). 22
 Mr. Colby used the Guidelines, "along with the Act, the FHA regulations, HUD's technical assistance and ANSI A117.1-1986"; and "the ADA Standards. . . ." (Dkt. #55-2 at 5).
Hence, while the Guidelines and ANSI 86 exceed the FHA, Plaintiff went even further by
creating a standard consisting of a combination of all possible technical criteria from ANSI 86,
19LCM, Plaintiff's primary expert firm, has the least amount of experience of any witness in this case, having worked on FHA issues for only the past "four or five" years. (Catlin Dep., 25:18-22 (Ex. 18, App.344)). Mr. Anderson was the "primary author" of their main report but did not sign it, (Anderson Dep., 88:16-89:7 (Ex. 20, App. 382)). Mr. Anderson has no formal training in accessible design or degree in architecture. (Id. at 27:15-28:17 (Ex. 20, App. 378), (explaining his "business background")). 20See e.g., Catlin Dep., 46:19-58:3 (Ex. 18, App.348); Schoonover Dep., 13:19-15:15 (Ex. 23, App.412). 21HUD, Supplement to Notice of Fair Housing Accessibility Guidelines: Questions and Answers About the Guidelines, 59 Fed. Reg. 33362 (June 28, 1994) (Ex. 22, App. 393-409). 22As explained by Hilberry, she used a "group of documents" together under the theory that none of the safe harbors is a "solitary" document. (Hilberry Dep., 42:8-43:13 (Ex. 24, App.430)).
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the Guidelines, the Design Manual and other HUD assistance materials.23 To prove a "violation"
Plaintiff cherry picks from these materials the most restrictive requirement possible even if under a less burdensome provision the condition would be considered accessible.24 In particular,
Plaintiff relies on the Design Manual and the 1994 Q&A to justify their interpretation where the
"requirement" is not set forth in the Guidelines. (Schoonover Dep., 244:16-245:19 (Ex. 23, App.
426-427); Dkt. #236 at 24, 28- 34, 46, 47)).25 This ignores the fact that more half of the
properties at issue here (18) were designed prior to the 1998 publication of the Design Manual.
(See Ex. 15, App. 322-330). Thus, even if Plaintiff correctly characterizes case law where the
plaintiff compared existing conditions to the Guidelines, (Dkt. #236 at 10-11, 16-17), Plaintiff's
experts went far beyond simple comparison with the Guidelines or ANSI 86, and desperately
applied a standard not in existence at the time of design. Having presented a theory of liability
that goes so far beyond the Guidelines, much less the FHA, Plaintiff is not entitled to summary
judgment under any of the cases they rely upon.
E. Plaintiff Conveniently Ignores That The FHA Allows For The Properties To Incorporate Four Features Of Adaptive Design.
Plaintiff's methodology for demonstrating non-compliance ignores a fundamental aspect
23Ritzu Dep., 37:6-55:21 (Ex. 25, App. 440-444); Anderson Dep., 89:16-101:14 (Ex. 20, App. 383-86); Catlin Dep., 14:1-18:4, 27:15-33:20, 42:20-44:4, 55:7-57:15, 65:4-89:1, 91:16-96:4, 214:15-216:24, 228:7-229:2 (Ex. 18, App. 342-43;344-46; 347; 350-51; 352-59;365; 366-67). (Schoonover Dep., 15:2-23; 57:22-58:13; 178:14-22 (Ex. 23, App.412; 413; 425); (Hilberry Dep., 41:25-42:15; 43:3-13; 200:2-16 (Ex. 24, App.430, 436)). Hence, Plaintiff's statement that its experts compared their observations to "the HUD regulations," the Guidelines, and "the 1991 ADA Standards," (Dkt. #236 at 4), is a misstatement that ignores the increased scope of "requirements" turned to by their experts to maximize "violations". 24There are numerous examples of where Plaintiff took the most restrictive interpretation possible in the quest to catalogue "violations." (See, e.g., Catlin Dep., 123:22-124:6 (Ex. 18, App. 362, 363) (agreeing that while ANSI 86 allows for T-turns in a kitchen flagging a violation for lack of clear floor space); Id., 126:12-25 (Ex. 18, App. 363) (using 48" inch requirement for thermostat heights despite the fact that it is 54" under ANSI 86); (Schoonover Dep., 169:10-170:12 (Ex. 23, App. 424) (using the Manual to create a requirement for a 12-inch minimum from the refrigerator to the centerline of outlets)). 25For example, "centering" of clear floor space is "violation" that Plaintiff cites repeatedly yet concedes was not in the text of the Guidelines, (Dkt. #236 at 32 n. 28, 33). As explained by multiple experts, the concept of centering was first suggested in the Design Manual. (Skarzenski Dep., 173:9-174:22 (Ex. 12, App. 280); Wales Dep., 75:2376:9 (Exh., 26, App. 458); Sheriff Dep., 178:18-24 (Ex. 27, App. 471)).
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of the Act by failing to account for the presence of features of adaptive design. On its face, the FHA states that there are four "features of adaptive design": (1) an accessible route into and through the dwelling; (2) light switches, electrical outlets, thermostats, and other environmental controls in accessible locations; (3) reinforcements in bathroom walls to allow later installation of grab bars26; and (4) usable kitchens and bathrooms such that an individual in a wheelchair can maneuver about the space. 42 U.S.C. § 3604(f)(3)(C)(iii).27
Despite the clear language of the FHA, Plaintiff's experts either took the position that there is only one feature of adaptive design (reinforced bathroom walls), (Dkt. #141 at 10),28 or ignored the concept completely. (Dkt. #144-1 at 2-3, 16-17, 26-27, 33-35 ("[t]he presence of adaptable features in a space does not mean that that space complies with the minimal levels of accessibility required by the FHAA."). The argument that "use of the terms 'adaptive' or 'adaptable' in both the statute and the legislative history in no way modifies the requirement that all the features required by the FHA must be in place at the time of first occupancy," (Dkt. #236 at 13 n.13), is both legally incorrect and logically absurd.
It is well recognized in the building industry that the four features of adaptive design are key to complying with the goals of the FHA as they allow units to be changed to meet the specific needs of the disabled resident. See Wales Main Rpt. at 10-12 (Ex. 28, App. 483-485; Ex. 29, App.552-555); Vredenburgh Main Rpt. at 15 (Ex. 30, App. 571; Ex. 31, App. 592-594); Sheriff Main Rpt., p. 7-8 (Ex. 32, App. 602-603; Ex. 33, App. 619-623). The whole purpose of adaptability is recognition that because not all needs can be anticipated, the unit should be built
26Plaintiff' does not contest the presence of reinforcements. (See Dkt. #236 at 22 n. 23). 27See H.R. Rep.at 26-27, describing the "four specified features of adaptive design" consistent with Defendants' experts. (Ex. 3, App. 90). Such features of "adaptive design," are elements that allow persons with disabilities to "easily make additional accommodations if needed." (See id. at 18.) 28Catlin and Anderson eventually retreated from LCM's prior statement. (Anderson Dep., 60:13-61:24 (Ex. 20, App. 379-380); Catlin Dep., 216:3-6 (Ex. 18, App. 365) (conceding that the Act speaks of 4 features)). Mr. Ritzu continued to maintain this misinterpretation of the Act and expressed puzzlement over Congress' intentions. (Ritzu Dep., 138:16-141:25 (Ex. 25, App. 448-49)). Thus, Plaintiff's own experts undermine their counsel's interpretation.
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so that it can be easily changed to meet the specific needs of the tenants, once known. Further,
compliance with a safe harbor does not obviate the need for adaptation prior to occupancy, as
Plaintiff's own expert admits:
Q. Does one -- is there one safe harbor that would allow for design and construction to meet all the disabilities that are out there? A. Yeah. I think as you are probably aware, I have rendered the opinion that the ANSI standard, ANSI A117.1 as an example does not purport to provide requirements that will satisfy 100 percent of all ranges of all people with disabilities. Q. It's an unrealistic goal to expect that a safe harbor would provide for 100 percent, correct? A. Well, yeah, I think it's unrealistic to expect design and construction -- to design and construct buildings in a way that meets 100 percent of everybody's needs that has a disability. (Schoonover Dep., 73:20-74:8 (Ex. 23, App. 414)).29
"Adaptive design" or "adaptability" refers to dwelling units that "can be adjusted or
adapted without renovation or structural change." Baltimore Neighborhoods, Inc. v. Rommel
Builders, Inc., 40 F. Supp.2d 700, 708 (D. Md. 1999)(quoting HUD); Phillips v. Downtown
Affordables, LLC, No. 06-00402, 2007 WL 2668637, at *8 (D. Haw. Sept. 5, 2007). Provided
that there is sufficient space and an adequate layout, there are a wide range of adaptable features
that can be built into properties to allow for later alteration by maintenance staff such as
changing base cabinets, thermostats, thresholds, door swing, floor coverings or appliances. (See
Sheriff Dep., 106:15-109:23, 126:21-127:6, 139:4-140:14, 175:10-177:2 (Ex. 27, App. 466-67;
468; 469; 470); Wales Dep., 171:16-172:9 (Ex. 26, App. 461); Vredenburgh Dep., 171:12-172:4 (Ex. 34, App. 627); Meacham Dep. (Vol. I), 26:11-33:6 (Ex. 9, App. 219-21)).30
29See also Id., 74:9-18 (Ex. 23, App. 414) (further noting "we accept that there are features of a building design and construction, you know, which will not meet everybody's needs. That's just generally accepted in the standards development process")). Indeed, the safe harbors Plaintiff professes to apply give examples of adaptable features. (Anderson Dep., 58:2-60:12 (Ex. 20, App. 379)). 30Examples of "non-structural adaptations that, if present, would not constitute FHA[] violations," include "changing counter and sink heights; removing a cabinet to reveal a knee space under the work surface, kitchen sink, and
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Courts have recognized that the use of adaptive design is well within the purview of what Congress intended. Baltimore Neighborhoods, 40 F. Supp.2d at 708 (adaptive design refers to modifications that can be made "without delaying occupancy by the new tenant"); Phillips, 2007 WL 2668637 at *8. Whether or not a unit incorporates features of adaptive design is a necessary question of fact for determining FHA compliance. Id. at *1.
Plaintiff has chosen to read the words "features of adaptive design" right out of the FHA. Because Plaintiff utterly failed to acknowledge this fundamental aspect of statutory construction, Defendants are entitled to summary judgment. See Kaltenbach v. Richards, 464 F.3d 524, 528 (5th Cir. 2006) ("a statute ought, upon the whole, to be so construed that. . . no clause, sentence, or word shall be superfluous, void, or insignificant"). Therefore, Defendants are entitled to summary judgment on all allegations concerning features of adaptive design, 42 U.S.C. § 3604(f)(3)(C)(iii) -- the accessible route into and through the unit, (Conditions 468472), heights of light switches and thermostats (Conditions 473-482), and usable kitchens and bathrooms (Conditions 483-530). (See Dkt. #236-2, Exhibit 1 at App. 110-125).
F. Plaintiff's Conclusions Must Be Limited To The Specific Units Inspected. Plaintiff's experts acknowledge that they did not inspect every unit at the properties for which they seek to offer opinions. Instead, small percentages of units were inspected with only one of any unit type inspected and the other two checked for comparison. From that small percentage of units inspected, Plaintiff asserts that entire buildings are not compliant and seeks a remediation plan for the entirety. Such assertions are contingent on the assumption that all units of the same "type" would have the same allegedly non-compliant features. This assumption,
bathroom lavatory" as well as changing out "appliance controls . . . ." Phillips, 2007 WL 2668637 at *7. In sum, "an adaptable unit is an accessible unit with features that can be tailored to the specific needs of the tenant." Id.
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however, is the exact issue on which the experts seek to opine and thus cannot be assumed. Fed. R. Evid. 702; United States v. Day, 524 F.3d 1361, 1368-69 (D.C. Cir. 2008).
In rebuttal to such extrapolation, Defendants proffer the opinions of Joseph Kadane, Ph.D., a professor of statistics at Carnegie Mellon University since 1971. (Kadane Decl., Ex. A, ¶ 1 (Ex. 35, App. 631)). Dr. Kadane has written numerous articles regarding statistics as reflected on pages 7 through 35 of his curriculum vitae, including a recent book entitled "Statistics in the Law". (Id., at Ex. A, Tab A (Ex. 35, App.635-70)).
Dr. Kadane explained the importance of implementing random sampling prior to extrapolating in order to "ensure[] that there is no bias, whether intentional or inadvertent, in the choice of units." (Kadane Decl., Ex. A, ¶ 7 (Ex. 35, App. 632-33)). In considering if Plaintiff's selection of units was conducted properly, Dr. Kadane concluded "no." Dr. Kadane reviewed the deposition transcripts of each of Plaintiff's experts and confirmed that Plaintiff's experts failed to use random sampling: "As it is clear that appropriate random sampling was not used in Plaintiff's studies, the inferences drawn by Plaintiff's experts about units not inspected are not scientifically valid. Instead, the results of their inspections are limited to the specific units inspected." (Kadane Decl. at Ex. B, ¶ 10 (Ex. 35, App. 677); Hilberry Dep, 62:18-66:10 (Ex. 24, App.433-34); Schoonover Dep., 143:21-145:2 (Ex. 23, App. 418-19); Colby Dep., 81:14-82:22 (Ex. 21, App. 392); Catlin Dep., 187:13-23 (Ex. 18, App.364); Mohnke Dep., 139:1-15 (Ex. 36, App. 683); Anderson Dep., 74:8-75:17 (Ex. 20, App.381); see generally Kadane Dep. 16:916:18, 26:3-29:11 (Ex. 37, App.690; 691-92)).
Consistent with Dr. Kadane's opinion, courts recognize that, when an expert fails to reliably represent the population through proper sampling, the opinion is not to be admitted. See Rink v. Cheminova, 400 F.3d 1286, 1290 (11th Cir. 2005) (excluding extrapolated opinions
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based on conjecture); Meister v. Med. Eng'g Corp., 267 F.3d 1123 (D.C. Cir. 2001) (affirming exclusion of plaintiff's expert testimony because of too great an analytical gap between data and opinion). Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997).
Plaintiff attempts to refute the inadmissibility of Plaintiff's extrapolated expert opinions by asking this Court to ignore Dr. Kadane, disregard the controlling case law, and conclude that random sampling is not necessary here. (Dkt. #236 at 37, fn. 33.) The sole support for Plaintiff's request is one trial court decision that did not address the need for sampling or the admissibility of the opinions at issue there but rather concluded that the record in that case failed to create a genuine issue of material fact based on deposition testimony that was "littered with uncertainty and vagueness." Id. In contrast, here Dr. Kadane's opinions are crystal clear.
As Plaintiff's experts only have knowledge regarding the specific units they inspected, they have no scientific basis for rendering their broad opinions. (Kadane Decl. at Ex. B, ¶ 10 (Ex. 35, App. 677)). Such broad opinions without factual support are not helpful to the fact finder in determining the very issues that Plaintiff must prove. Clark v. Takata Corp., 192 F.3d 750, 757 (7th Cir. 1999); Muñoz v. Orr, 200 F.3d 291, 301 (5th Cir. 2000). Summary judgment can be entered against Plaintiff on any units Plaintiff's experts did not inspect. V. EVEN IF PLAINTIFF HAS MET ITS AFFIRMATIVE PROOF BURDEN,
DEFENDANTS HAVE PRESENTED SUBSTANTIAL EVIDENCE REFUTING PLAINTIFF'S ALLEGATIONS. In light of the many facts contradicting Plaintiff's claims, Plaintiff cites to numerous cases where divergences from the FHA were undisputed and claims this is another such case.31 It is not. Upon review of the main expert reports, the rebuttals to Plaintiff's experts and the
31The cases primarily relied on by Plaintiff, (Dkt. #236 at 11 n. 11), are easily distinguishable given that they all involve situations where the defendants failed to put on a case. The record in this case is plainly different - merely using the word "undisputed" does not make it so. Indeed, even the "violations" listed for Jefferson at Marymoor, for which Defendants' did not file an expert report, are disputed by numerous documents, which reflect that the property was designed and constructed in accordance with the Guidelines.(See Decl., J. O'Connor, III (Ex. 14, App. 293319)).
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detailed site-specific reports and accompanying videos and photos, it becomes readily apparent that Defendants have alleged sufficient facts to contest every allegation in this case if not to demonstrate compliance such that Defendants' motion should be granted.
A. Defendants' Experts Found That The Properties Are Accessible And Usable. Defendants have provided four different experts who analyzed the properties with different (although complimentary) methodologies.32
1. Two Experts Focus On A Proper Application Of The Safe Harbors. Contrary to the confused application applied by Plaintiff's experts, Defendants had two experts render opinions based on a conventional interpretation of the safe harbors--the very measures Plaintiff considers as objective and thus finds acceptable.33 In doing so, those experts noted numerous problems with Plaintiff's conclusions and showed that the properties are indeed accessible and usable even if the safe harbors were the only proper metric. Mark Wales is the owner and president of Wales Associates, LLC. Mr. Wales has over twenty-five years of experience related to interpretation, enforcement, and development of building codes and standards, including the federal accessibility standards.34 Mr. Wales refutes the methodology and conclusions of Plaintiff's inspectors and also affirmatively analyzes the accessibility, usability and adaptability of the properties. His analysis is based on a wide spectrum of technical assistance materials (including the safe harbors) and empirical research. (See Wales Expert Report (Wales Main Rpt. at 75-78, Ex. 28, App. 548-51)). Peter Skarzenski, AIA, of Pete Skarzenski Consulting has over thirty years of experience
32These experts expressed general opinions on the accessibility of the properties as well as property-specific opinions in publicly filed reports. If necessary, these experts will provide further affirmative evidence at trial that all the relevant properties are accessible, usable or adaptable for persons with disabilities. 33 Defendants' experts explain that the safe harbors are actually the result of a consensus voting process. (Wales Dep., 76:12-78:9 (Ex. 26, App. 458-59); Vredenburgh Dep., 25:9-27:23 (Ex. 34, App. 626)). 34Mr. Wales was on many of the same committees as Plaintiff's witness Mr. Schoonover. Mr. Wales served for 13 years on the ANSI 117.1 standards committee. (See Ex. 38, App. 694-96).
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as an architect and as a private consultant and has provided services such as in-house quality control, building code and handicap accessibility plan review, project specifications, construction observations, and post-construction reviews for multi-family housing, student housing, military housing, and multi-family housing renovation work. Mr. Skarzenski's main report, response to Plaintiff's rebuttals, and property-specific reports provide an analysis of accessibility based primarily on his deep understanding of the safe harbors and the design process.
2. Two Other Experts Look to Other Creative, Objective Methods to Assess The Accessibility and Usability of the Properties.
Consistent with Congress's intent that there may be "other creative methods" of meeting the Act, H.R. Rep. No. 100-711, at 27 n.71 (Ex. 3, App. 90), Defendants hired two other experts to address accessibility and usability based on empirical research and on a practical methodology that demonstrates the concepts visually as applied to the properties.
Dr. Alison Vredenburgh is a principal with Vredenburgh & Associates, Inc. and the author of studies that evaluate the accessibility and usability of walkways and ramps and of apartment bathrooms, kitchens, turning space and control placement. Among other issues discussed in Dr. Vredenburgh's main report, response to Plaintiff's rebuttals, and in the propertyspecific reports, Dr. Vredenburgh discusses her empirical research, studies and experience and her determination that the properties are accessible, usable and adaptable to the needs of persons with disabilities, and how compliance with the safe harbors does not necessarily mean that an element is accessible. (See Vredenburgh Main Rpt. at 1-17 (Ex. 30, App. 557-73)).
Paul Sheriff is the founder and President of Paul Sheriff Inc., which provides consulting services to large corporations, small companies, architects, attorneys, individual business owners, insurance companies, and the federal government on accessibility issues. Mr. Sheriff serves as a Special Master, Court Monitor and Arbitrator/Mediator to the US District Court for
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the District of Hawaii on issues relating to accessibility and compliance with the accessibility laws. Mr. Sheriff is a paraplegic and has used a wheelchair for the past twenty-five years. Mr. Sheriff conducted "roll-thru" surveys by which he assesses the accessibility, usability and adaptability of properties as well as any barriers to accessibility. While he does not use a tape measure, he uses a specially made wheelchair to evaluate the various components of the living space looking primarily for the presence of 30 x 48 clear floor space (i.e. "ability to maneuver about the space") and reach ranges. Mr. Sheriff also discusses how adapting a space to meet the specific needs of disabled individuals on a case-by-case basis allows the property manager to meet the needs of each specific person with a disability, upon request. His analysis is presented in both written reports and videos.35 (See Sheriff Main Rpt. at 1-23, (Ex. 32, App. 596-618)).
B. There Is No "Uncontested" Evidence Of Violations. Plaintiff asserts entitlement to summary judgment for "those conditions that are either undisputed by JPI's inspectors or are so egregious when compared to the standard provided by the Guidelines that they cannot be legitimately explained by other purported defenses, such as wear and tear, construction 'tolerances,' or environmental conditions." (Dkt.# 236 at 22). While Plaintiff cobbled together an exhibit for the supposed purpose of demonstrating pinholes in Defendants' reports, it is readily apparent that Defendants contested every single allegation in this case either in main reports or on an item-by-item basis. 36 Simply because a measurement was not disputed does not mean that there is a "undisputed" violation of the accessibility laws. The majority of the "conditions" (#1-445) identified by Plaintiff pertain to the requirement to make the public and common areas readily accessible to and usable by
35See, e.g. written property report of Paul Sheriff for Aspen Ridge, (Ex. 39, App. 732-804), and video report for Aspen Ridge (Ex. 40, App. 806). 36Plaintiff's theory is only substantiated by an improper, inadmissible summary exhibit which mischaracterizes opinion and testimony as opposed to summarizing information. In response, Defendants provide the Court with a proper counter exhibit reflecting that each issue raised is indeed refuted by Defendants' experts. (Cf. Dkt. #236-2 at Plaintiff's Ex. 1 with Defendants' Ex. 1, App. 1-85).
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handicapped persons, with the primary focus on "accessible routes." (Dkt. #236 at 22-28). These allegations are addressed by Defendant's experts in terms of misapplication of the safe harbors, situations where the condition met other safe harbors or peer-reviewed research:
1) There is no requirement under the safe harbors to have a network of sidewalks connecting every dwelling unit to the common use areas and not every amenity has to be accessible. (Wales Main Rpt. at 30-34 (Ex. 28, App. 503-503); Wales Dep. 167:10-168:1; 236:2-238:6 (Ex. 26, App.460; 462-63); Skarzenski Main Rpt. at 2-3 (Ex. 41, App. 809-810), Ex. 56, App. 1200-03)).
2) Defendants' design professionals designed all "accessible routes" to have 2% cross slope and 5% running slope. (Knight Dep. (Vol. I), 28:6-29:3 (Ex. 10, App. 256-57) and Dep. Exh's 4, 5, 7, 9, 16 and 22 (Ex. 42, App. 812-863)). Plaintiff's examples of "undisputed" conditions focuses almost exclusively on sidewalks that were by definition not the "accessible" route (having exceeded 8.33%). (Dkt. #236-2 at 25-27, Conditions 63-212).
3) Sidewalks, landings and ramps with greater than 5% running slope and 2% cross slope are accessible. (Wales Main Rpt. at 8-9, 35-43 (Ex. 28, App. 480-81; 507-15); Jefferson on the River Rpt. at 10-12 (Ex. 44, App. 872-74); Vredenburgh Main Rpt. at 7-10 (Ex. 30, App. 563-66)).
4) The FHA did not require that all building sites have to be flattened or that all sidewalks have 5% running slope and 2% cross slope, nor did it ban the use of stairs at apartment complexes. (See Dkt. #236 at 23-27). HUD's regulations merely provide that there must be "[a]n accessible route into and through the covered dwelling unit," 24 C.F.R. § 100.205(c)(3)(i). Hence, as a matter of law not every sidewalk leading to a building nor every entrance must be accessible -- only one accessible route and entrance must be provided and even that requirement
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may be waived due to terrain or unusual characteristics of the site.37 Yet, Plaintiff measured every sidewalk for slope and catalogued every set of steps they could find even when it was not on the accessible route. (See Dkt. #236-2 at 48 -289). Clearly sidewalks with stairs were not intended to be the accessible route. (Knight Dep. (Vol. I), 30:1-32:8 (Ex. 9, App. 220); Knight Dep. (Vol II), 63:21-64:14 (Ex. 43, App. 866)).38 Defendants' experts looked for alternative routes that met the necessary criteria. (Wales Main Rpt. at 32-33 (Ex. 28, App. 504-05); Sheriff Main Rpt. at 22, fn. 11 (Ex. 32, App. 617)).
5) Merely taking a measurement of a single point on a sidewalk is a faulty means of measuring the actual slopes of the sidewalk. (Wales Main Rpt. at 20-21 (Ex. 28, App. 492-93 ); Knight Dep. (Vol. II), 69:16-72:1; 74:7-76:1; 78:7-80:22 (Ex. 43, App. 867; 868 ;869).
6) Under the Guidelines, only 2% of the covered units require accessible parking and the properties far exceeded this minimum number. (Wales Dep., 167:10-168:1 (Ex. 26, App. 460); Knight Dep. (Vol. II), 109:19-112:13 (Ex. 43, App. 870)).
Many of the issues identified by Plaintiff's inspectors were clearly unrelated to design and construction. The built environment is not static -- all properties are subject to soil movement and natural changes due to soil expansion and shrinkage, settlement, frost heave and tree root growth.39
1) It is well known to all but Plaintiff's inspectors that soil expands and contracts, eventually causing obvious sidewalk movement (e.g. the high clay content of the soil in Dallas).
37 Similarly, not every door has to be accessible, rather only those that are designed for passage. (Wales Main Rpt. at 6 (Ex. 28, App. 479) (e.g. closet doors or secondary doors to a room)). 38Plaintiff ignores the fact that the Design Manual states that "inaccessible walks" are "allowed" where site amenities are linked by alternative accessible routes. Design Manual at 2.9 (Ex. 19, App. 373). 39 Even though Plaintiff's experts attempt to ignore the fluctuation of sidewalks and slopes which regularly occurs due to weather, the Court can take judicial notice of this obvious fact. F.R.E. 201. If there were any doubt of this fact, evidence of the sever drought and frost conditions rampant throughout the states where many of these properties are located is reflected in multiple publications. (See, e.g. Ex. 45, App. 875-884 (articles regarding drought); (Ex. 46, App. 885-897) (articles discussing snow and ice).
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(Skarzenski Dep., 178:17-179:3 (Ex. 12, App. 281); Knight Dep. (Vol. I), 16:24-20:22 (Ex. 10, App. 253-54); Vredenburgh Main Rpt. at 11-15 (Ex. 30, App. 567-71); Wales Main Rpt. at 27, 43-44 (Ex. 28, App. 499; 515-16 )).40
2) Natural conditions particularly impact the sidewalks, ramps and landings. On countless occasions, the inspectors encountered changes to the accessible routes caused by environmental conditions causing slope deviations, vertical level changes at the interface of construction where buildings and/or sidewalks meet, cracks and gapping. 41 Sidewalks are designed to move and can be expected to move as much as 12 inches in a single year. (Knight Dep. (Vol. I), 16:24-20:22 (Ex. 9, App. 216-17)).
Plaintiff did not consider the impact of the terrain or unusual characteristics at the various sites. (Schoonover Dep., 101:17-103:11 (Ex. 23, App. 415); Mohnke Dep., 146:17-148:13, 75:24-77:1 (Ex.36, App. 684; 681-82); Anderson Dep., 18:18-19:5, 19:16-22, 175:12-25 (Ex. 20, App. 376; 387)). There are obvious practical reasons for the fact that not every sidewalk or entrance can meet Plaintiff's stringent standards. A development company cannot simply flatten an entire site or replace all of the soil, as Plaintiff's experts suggested. (Knight Dep. (Vol. I), 16:9-23 (Ex. 10, App. 253); Meacham Dep. (Vol. I) 47:2-49:10 (Ex. 9, App. 224-25)).42
1) Plaintiff gave no credence to the vehicular route exemption, which exempts the requirement for accessible pedestrian sidewalks between covered dwellings and public or common-use facilities elsewhere on the site due to site or legal constraints. 56 Fed. Reg. at 9505. (Dkt. #236 at 24). Defendants demonstrated that the use of vehicular routes and vehicles
40 See, e.g. Jefferson on the River Rpt. at 11, 12 (Ex. 44, App. 873-74); see also Sullivan Place Rpt. at 10 (Dkt. #160-1) and Beaver Creek Rpt. at 3-4 (Dkt. #86-2). 41 See Riverchase Rpt. (Dkt. #79-1 at 27, 43-44) (concluding that 100% of the gaps are resultant of deterioration and breakdown of the expansion joint material and/or due to the movement of soil causing vertical level changes). 42 As shown in the attached photos, there is no possibility of designing a sidewalk with 5% grade at certain locations. (Wales Decl. (Ex. 29, App. 553-55)).
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is an acceptable means of accessing common use areas where the slope of sidewalks exceeds 8.33%. (Wales Main Rpt. at 9, (Ex. 28, App. 482); (Alara Farms Rpt. at 6, Dkt. #199-1); Knight Dep. (Vol. I), 82:14-85:2 (Ex. 10, App. 260)).
2) HUD's regulations exempt from the requirement of having at least one building entrance on an accessible route situations where "it is impractical to do so because of the terrain or usual characteristics of the site." 24 C.F.R. § 100.205(a).43 The civil engineer would perform a "slope analysis, using the topographic survey, to define the percentage of the site that was over 10 percent in grade."44 (Knight Dep. (Vol. I), 24:14-26:22 (Ex. 10, App. 255-56)). A number of sites had 25 to 20 percent slope over 10%. (Id.) Hence, the existing terrain made it impractical to provide an accessible route to certain units at several properties including those where Plaintiff claims "undisputed" conditions.45 Contrary to Plaintiff's assertion, this was accounted for during the design and construction process. (See e.g. Dec. J. O'Connor, III, (Ex. 14, App. 290-292)).46 Defendants' experts confirmed that the terrain affected numerous properties and eliminated units from consideration.47
3) Defendants' expert reports have disputed the characterization of certain units as the second "ground floor", noting that they were not intended to be "covered units" due to site constraints. (See, e.g. Dkt. #199-1 at 79, 10; Dkt. # 151-1 at 5; Dkt. #192-1 at 6-7; Dkt. #115-1
43The regulations do not provide any particular test for this analysis. Id. (providing examples of such conditions). 44The 10% grade is used in the Guidelines, which requires analysis of the percentage of the total buildable area of the undisturbed site that is above 10% as the starting point. 56 Fed. Reg. at 9503-04. 45The properties are Hill, Lakes, Canyon, Founders, Den Rock, Morgan Falls, Aspen Ridge, Marymoor, Fair Oaks, Farms, Jefferson on the River, Pin Oak, Beaver Creek and Alara Farms. (Defendants' Responses to Requests for Admissions at 13-15, 76-78, 120-22, 131-133, 166-167, 200-202, 381-383, 547-548, 270-271, 291-293, 413-415, 392-394, 246-248 (Ex. 47, App. 899-938)). 46Plaintiff has faulted Defendants for not providing "any evidence showing that anyone performed the tests as required by the Guidelines." (Dkt. #236 at 48). In addition to the fact that the regulations do not require conformance with the Guidelines, it is important to note that the FHA has no document retention requirement. Plaintiff challenges decisions that took place decades ago and seeks to hold Defendants to a non-mandatory standard and a document retention policy that does not exist. 47See, e,g, Dkt. #86-2 at 3-4; Dkt. #166-1 at 1-4; Dkt. #191-1 at 3-4; Dkt. #151-1, at 3-4; Dkt. #199-1 at 2, 7-9; Dkt. #192-1 3-6; Dkt. #96-1 at 32; Dkt. #115-1 at 2; Dkt. #192-1 at 3.
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at 4; Dkt. #191-1 at 8). It is Plaintiff's burden to prove that the unit in question is a "covered"

unit, which they have not done.

Plaintiff cannot dodge the fact that the conditions of the properties are affected by age.

While derisively paying lip service to the notion of "defenses, such as wear and tear, construction

'tolerances,' or environmental conditions," (Dkt. #236 at 22), the simple fact is that some of

these properties are almost 20 years old and Defendants have not owned most of them for quite some time.48 Elements of the properties outlived their natural life or have fallen into disrepair

(thereby requiring maintenance), and current management has undertaken renovations. The

property-specific reports demonstrate that this affected accessibility in numerous ways:

1)

Resealing and restriping of asphalt parking lots is often times necessary to arrest

cracking and deterioration.49 With this, handicapped accessible spaces are moved.

2) Operating mechanisms such as door knobs, lavatory faucet handles/plumbing

fixtures wear out due to age or become inoperable and thresholds loosen and rise. (Dkt. #152-1

at 3). They may be replaced with knobs or handles that are not designed specifically for people with hand manipulation disabilities.50

Having waited so long to file suit, Plaintiff tries in vain to pretend that a property

constructed twenty years ago is the same today as it was then. This is not remotely credible.

While the wear and tear on some of these properties was observable to even the untrained eye (e.g. crumbling concrete, sidewalk movement, stuck doors),51 Plaintiff's inspectors refused to

acknowledge issues of maintenance, taking the position that they were only to inspect for

48For example, Villas at Beaver Creek was sold to System Realty Inc. c/o Virginia Retirement System in April 1994. The current owner of Villas at Beaver Creek is Trammel Crow Residential. See Defendants' Objections and Responses to Plaintiff's First Set of Interrogatories, No's. 1 and 3, Ex. A and C (Ex. 48, App. 940-45). 49See Jefferson on the River Rpt. (Dkt. #192-1 at 12-15). 50See Jefferson at Morgan Falls Rpt. at 87-88 (Dkt. #191-1). 51See, e,g. photos from expert reports (Dkt. #137-1 at 2-3; Dkt. #47-3 at 63). Mr. Meacham explained the various ways that a building can change after it is designed and constructed. (Meacham Dep. (Vol. I), 59:1-61:4, Ex. 9, App. 227-28); Mohnke Dep., 183:19-184:17, Ex. 36, App. 686-87).

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"existing conditions" at the time of the site visit. (See, e.g. Ritzu Dep., 190:9-208:8 (Ex. 25, App. 450-454); Mohnke Dep., 184:7-185:16 (Ex. 36, App. 686-87); Hilberry Dep. 194:6-15 (Ex. 24, App. 435); Schoonover Dep., 154:7-165:1 (Ex. 23, App. 420-23); Knight Dep. (Vol. I) at 94:9-12 (Ex. 10, App. 262)).52
Many of the alleged divergences from the suggested measurements of the safe harbors were fractions of an inch, which is allowable.53 The very safe harbors cited by Plaintiff allow for deviations from their recommendations, which are commonly known as construction tolerances.54 (See ANSI 117.1 § 3.2 (Ex. 49, App. 949); Meacham Dep. (Vol. I), 21:15-22:17 (Ex. 9, App. 218)). Minor variations between the plans and final construction is an accepted aspect of these standards given the lack of precision in this type of construction. (See Wales Main Rpt. at 7 (Ex. 28, App. 480); Skarzenski Main Rpt. at 2 (Ex. 36, App. 680); Sheriff Main Rpt. at 22 (Ex. 32, App. 617); Skarzenski Rebuttal Rpts. at 166-3 at 4; 166-4 at 2, 4-6, 8 (Ex. 50, App. 962; 966; 968-970; 972).
Courts have taken into account construction tolerances when evaluating the accessibility of a facility in the safe harbor context and under the ADA. See, e.g. Access Now, Inc. v. Ambulatory Surgery Center Group, Ltd., No. 99-109, 2001 WL 617529, at *11 (S.D. Fla. May 2, 2001) (finding that "conventional building industry tolerances for field conditions," or "construction tolerances," exist in varying amounts for different construction elements); Parr v. Kapahulu Investments, Inc., No. 98-00329, 2000 WL 687646, *20 (D. Haw. May 16, 2000) (finding injunctive relief not appropriate for de minimis violations of ADAAG given that the
52At certain properties these minor maintenance issues were so minor that they were actually addressed before Defendants' inspection teams could get to the property. (Catlin Dep., 106:16-109:14 (Ex. 18, App. 360-61); Mohnke Dep., 179:6-183:18 (Ex. 36, App. 685-86)). LCM still considers these "violations". 53LCM explained that they "noted a violation of the Act any time there was a discrepancy from the guideline no matter how minor." (Ritzu Dep., 104:2-22 (Ex. 25, App. 445)). 54Section 3.2 of ANSI states: "All dimensions are subject to conventional building industry tolerances for field conditions." (Ex. 49 at §3.2, App. 949). AADAG has similar language.
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discrepancies "do not materially impair the use of an area for its intended purpose, nor does it pose any apparent danger to persons with disabilities."). It is in fact Plaintiff's burden to demonstrate that any variance exceeds the tolerance. See Cherry v. City College of San Francisco, No. 04-04981, 2006 WL 6602454 at *6 (N.D. Cal. Jan. 12, 2006). However, Plaintiff's witnesses did not account for such tolerances or otherwise attempt to reach a conclusion about whether such minor divergences resulted in conditions that were not accessible. (Schoonover Dep., 127:21-129:11 (Ex. 23, App. 416-17); Ritzu Dep., 117:22-120:17 (Ex. 25, App. 447)).55 Given that Plaintiff has failed to address evidence that the alleged barriers are within permitted dimensional tolerances, Defendants are entitled to summary judgment on that defense.
The FHA is triggered by the discrete acts of design and construction of the covered unit or common area. Fair Housing Council, Inc., 250 F. Supp. at 718-19; Garcia v. Brockway, 526 F.3d 456, 461-62 (9th Cir. 2008). Therefore, Defendants are entitled to summary judgment for all instances where the alleged violation was due to changes unrelated to actions of design and construction. Alternatively, at a bare minimum, all of these fact-driven impacts on accessibility will be subject to proof as such by Plaintiff at trial, and Defendants cannot be held in violation of the FHA without first examining both the cause and whether or not the deviation nontheless results in a condition that is "accessible" "usable" or a "feature[] of adaptive design." Defendants are entitled to demonstrate that issues of maintenance, "de minimis" deviations from the standards relied on by Plaintiff, and issues caused by changing site conditions, may co-exist with
55LCM was not even aware that ANSI 117.1 allowed for construction tolerances until confronted during the deposition. (Ritzu Dep., 116:1-118:25 (Ex. 20, App. 446-447)). While Ms. Hilberry acknowledged that the dimensions suggested under ANSI 117.1 are subject to construction tolerances and claimed to have considered them, she drew a "blank" when asked for a specific example of taking construction tolerances into account. (Hilberry Dep., 51:16-56:7 (Ex. 24, App. 431-432)). Her reports indicate the most minor of variances. (See, e.g. Dkt. #149-1 at 5-7).
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an accessible, usable, and/or adaptable property. See Access Now, 2001 WL 617529, at *11; Parr, 2000 WL 687646, at *20; Independent Living v. Oregon Arena, 1 F.Supp.2d. 1124, 1135 (D. Ore. 1998) (recognizing a defense for "dimensional tolerances" where plaintiff claimed arena was inaccessible); D'Lil v. Stardust Vacation Club, No.00-1496, 2001 WL 1825832, at *5 (E.D. Cal. Dec. 21, 2001).
C. Plaintiff Fails To Show A Pattern Or Practice Of Discrimination. Plaintiff claims there is a pattern and practice of discrimination under the theory that there are a variety of deviations at 32 of the 52 properties at issue in this litigation. (Dkt. #236 at 36). On this issue, Plaintiff offers only theories, not facts. Plaintiff's theory is fundamentally flawed and ignores the fact that Defendants' policy has always been one against discrimination. By its own case law, Plaintiff fails to show that discrimination is "the company's standard operating procedure, the regular rather than the unusual practice." Int'l Bd. of Teamsters v. United States, 431 U.S. 324, 336 (1977) (emphasis added); Dkt # 236 at 36.
1. Plaintiff Hopes To Dodge All Evidence Regarding 20 Undisputed Properties.
This phase of the litigation is about 52 properties. Unable to prove liability related to the conditions at 20 of the 52 properties based upon the documents and written discovery produced as well as the expert testimony regarding 8 of the 20 properties, Plaintiff has decided to forego its claims against those 20 properties. (Dkt # 236 at 7, n.9.) Those 20 properties constitute all of the student housing projects and all of the elevator projects (with the limited exception where elevator buildings are mixed with garden-style buildings and where multiple elevator buildings are spread across a property). At a minimum, Plaintiff's decision to drop student housing and elevator buildings is an express recognition by Plaintiff that with respect to those styles of properties, the pattern is one of full and complete accessibility. Further, the fact that, for over
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one-third of the properties included in this phase, Plaintiff has no case, crushes Plaintiff's claim that there was any pattern or practice of discrimination employed by Defendants across the design and construction of all of its properties.
2. Defendants' Policies Are One of Inclusion and Anti-Discrimination. The scattered divergences from non-mandatory standards hardly meets the high hurdle of demonstrating a pattern and practice. See Pacific Northwest Electric, Inc., 2003 WL 24573548 at *10 ("a showing of violation of the FHA is, in and of itself, insufficient, to succeed on a claim of "pattern and practice of discrimination").56 The properties at issue were not designed and constructed by the same individuals or even the same entities. Instead, a diverse group of JPI employees and design professionals working out of various offices throughout the country developed the properties over a 20 year period. (See Initial Disclosures, Ex. A and B (identifying more than 100 professional design firms and over 600 JPI employees involved in design and construction) (Ex. 51, App. 976-1109)); Motsenbocker Dep. (Vol. I), 53:11-17 (Ex. 5, App. 100) (explaining that JPI operated in various locations with different people involved in the design and construction process)). And, as the design professionals testified, each property is designed to meet the various needs of the community in which it is located, the state and local building codes, and the site conditions. (See Meacham Dep. (Vol. I), 109:23-110:21 (Ex. 9, App. 232); Knight Dep. (Vol. I), 20:23-22:17 (Ex. 10, App. 254-55) (explaining that different site conditions and local regulations influence design)). As reflected above, the overwhelming evidence shows a careful, deliberate and concerted effort at compliance throughout design and construction by hiring qualified professionals, mandating that certain standards are met, and overseeing the process to ensure that such goals
56Plaintiff must establish that the Defendants engaged in a "policy of discrimination," United States v. W. Peachtree Tenth Corp., 437 F.2d 221, 227 (5th Cir. 1971), or that it was its "standard operating procedure," Hallmark Homes, Inc., 2003 WL 23219807, at *5 (D. Idaho Sept. 29, 2003) (citations omitted).
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were achieved. Indeed, when one reverses Plaintiff's own chart (Dkt. # 236, at 8-9), it is clear that Plaintiff must concede the accessibility of the majority of the features investigated at these properties. (See Exs. 16,17). In addition, Defendants had firm practices in place to ensure its residents' needs were met. Development, construction, and property managers were all trained with regard to compliance, including distribution of the Guidelines, (Motsenbocker Dep. (Vol. I), 60:6-65:11 (Ex. 5, App. 101-03)), and an FHA compliance manual for property management (Ex. 52, App. 1110-1137).
Despite the passage of time and number of residents (some of these buildings have been occupied for almost 20 years and have been occupied by tens of thousands of residents), accessibility complaints have been few. (See Defs.' Response to Plaintiff's Second Set of Interrogatories No. 9. (Ex. 53, App. 1138,1182)). The specific needs of the residents were met via accommodations and modifications of the adaptable units just as the statute intended. (Id.; see also Motsenbocker Dep. (Vol. I), 298:2-299:4 (Ex. 5, App. 112) (describing process for accommodating resident requests to meet their specific needs)). Indeed, when an accessibility complaint was filed with HUD, the subsequent investigation determined that Congressional Village was accessible and the complaint was completely without merit-- they found "no violations" and it "was a bogus claim." (Meacham Dep. (Vol. I), 184:3-186:7 (Ex. 9, App. 24849)). VI. DEFENDANTS ARE ENTITLED TO SUMMARY JUDGMENT CONCERNING
THE TWENTY PROPERTIES PLAINTIFF CHOSE NOT TO PURSUE. In pursuing these claims, Plaintiff sought voluminous discovery on 52 properties. Following the close of discovery, Plaintiff supplemented its interrogatory responses and now indicates that it will not pursue claims regarding the design and construct of 20 properties. (Dkt. #236 at 15, fn. 9). Plaintiff cannot unilaterally pullback its claims as to these properties without
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prejudice or any other preclusive consequences.57 In its Motion, Plaintiff has failed to put forth any facts challenging the accessibility of
these 20 properties. Because Defendants filed an Answer, engaged in 15 months of fact and expert discovery regarding these properties, and filed its own Motion for Summary Judgment, Plaintiff cannot unilaterally withdraw its claims as to such properties without consequence. Plaintiff had an opportunity to make its case and failed to prove that these properties do not comply with the FHA. Where a defendant has presented undisputed facts in support of a motion for summary judgment, a plaintiff's efforts to dismiss claims should be denied so that the court may address the claims on the merits. See, e.g. Mosley v. JLG Industries, Inc., 189 Fed. Appx. 874 (11th Cir. 2006); Koerner v. Aetna Healthcare, Inc., 92 Fed. Appx. 394 (9th Cir. 2003); Tolle v. Carroll Touch, Inc., 23 F.3d 174 (7th Cir. 1994).
Plaintiff did not present opinion testimony regarding nine properties in this case: Jefferson at Berry Street (University of Minnesota), Clark Atlanta University, Gainesville (University of Florida), North Carolina State University (Wolfpack), Jefferson Commons-Lawrence (KU), Jefferson Commons--OSU (Stillwater II), Jefferson Commons at Star Ranch (Tucson II), Jefferson Commons at Fresno, and Jefferson at Simi Valley. Without any evidence to support the initial claim that these properties are inaccessible, Plaintiff cannot meet its burden and judgment should be entered summarily in Defendant's favor. Further, for a number of these properties, Defendants have put forth undisputed evidence and testimony that the property is
57Plaintiff should have filed a motion to dismiss its claims voluntarily. See Fed. R. Civ. P. 41(a). However, at this point, it should not be permitted to do so. "Where the plaintiff does not seek dismissal until a late stage and the defendants have exerted significant time and effort, the district court may, in its discretion, refuse to grant a voluntary dismissal." Hartford Accident & Indemnity Co. v. Coasta Lines Cargo Servs., Inc., 903 F.2d 352, 360 (5th Cir. 1990); see also League of United Latin American Citizens, Council No. 4434 v. Clements, 999 F.2d 831 (5th Cir. 1993); Oxford v. Williams Companies, Inc., 154 F. Supp. 2d 942, 951-4 (E.D. Tex. 2001).
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accessible.58 Based on this undisputed evidence, Defendants are entitled to summary judgment on these properties.
For the remaining 11 properties, Plaintiff conducted expert inspections but failed to meet its affirmative burden to show by a preponderance of the evidence that the dwelling units or common areas at these properties are not accessible. In choosing not to pursue claims against these properties, Plaintiff has made clear that it cannot dispute Defendants' assertion that the properties are accessible to and useable by persons with disabilities. On the other hand, Defendants have put forth substantial evidence in property-specific expert reports that these properties are accessible to and useable by persons with disabilities. Each of these properties was inspected by an accessibility expert, and in each case, based on the evidence observed during their inspection of the property, the expert concluded that the property was accessible and useable to persons with disabilities as required by the FHA and ADA.59
Based on this undisputed evidence, Defendants are entitled to summary judgment on these 20 properties. VII. EVEN IF LIABILITY COULD BE PROVEN, PLAINTIFF IS NOT ENTITLED
TO THE RELIEF IT SEEKS. In a footnote, Plaintiff states that "[s]hould the Court grant the United States’ motion for partial summary judgment as to liability, the United States intends to seek monetary damages for aggrieved persons, 42 U.S.C. § 3614(d)(1)(B); other appropriate injunctive relief, 42 U.S.C. § 3614(d)(1)(A)–(B); and civil penalties, 42 U.S.C. § 3614(d)(1)(C)." (Dkt. #236 at 50 n.44). This attempt to bifurcate the proceedings is inconsistent with the Court's scheduling order, but, even if that were not the case, Plaintiff faces significant problems securing relief in this matter.
58See, e.g. Dkt. #220-1; Dkt. #204-1; Dkt. #210-1; Dkt. #211-1. 59See Dkt. #99-1; Dkt. #126-1; Dkt. 130; Dkt. #135-1; Dtk. #133-1; Dkt. #145-1; Dkt. #205-1; Dkt. #160-1; Dkt. #147-1; Dkt. #124-1.
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A. Plaintiff's Claims For Penalties And Damages Are Time Barred. Under 28 U.S.C. § 2462, "any action suit or proceeding for the enforcement of any civil fine, penalty or forfeiture, pecuniary or otherwise, shall not be entertained unless commenced within five years from the date when the claim first accrued…" A cause of action seeking imposition of civil penalties under 42 U.S.C. § 3604(f)(3)(C) accrues from the date on which the design and/or construction is completed. Pacific Northwest Electric, Inc., 2003 WL 24573548, at *10; See also Garcia, 526 F.3d at 460-462 (9th Cir. 2008) (recognizing that a failure to design and construct "is not an indefinitely continuing practice, but a discrete instance of discrimination that terminates at the conclusion of the design-and construction phase.") In this case, the five year statute of limitations bars Plaintiff's claim for civil penalties on the 21 properties60 for which design and construction was completed before May 5, 2000. 61 Imposing any civil penalty outside of this five year period is inappropriate given "the problems of faded memories, lost witnesses, and discarded documents in penalty actions brought decades after alleged violations are finally discovered." Pacific Northwest Electric, 2003 WL 24573548, at *7 (citing 3M Co. v. Browner, 17 F.3d 1453 (D.C. Cir. 1994). See also Taigen, 303 F.Supp.2d at1133 (five year limit for civil penalties claim). Likewise, the statute of limitations for Plaintiff to seek compensatory damages on alleged violations at 29 properties has run. The applicable statute of limitations provides, "Every action for money damages brought by Plaintiff or an officer or agency thereof which is founded upon a tort shall be barred unless the complaint is filed within three years after the right of action first
60Design and construction of the following properties was completed before May 5, 2000: Jefferson at Rock Creek, Jefferson at Fox Hollow, Jefferson at Coral Square, Jefferson Summit(Maitland), Morgan Falls, Jefferson River, Jefferson at Pin Oak, Jefferson at King Farm, Jefferson on the Plaza, Jefferson Farms, Jefferson at Preston, Villas at Beaver Creek, Jefferson at Melrose, Jefferson on the Parkway, Jefferson at Riverchase, Jefferson at Prestonwood Hills, Jefferson at Frankford, Jefferson Hill, Jefferson at Mission Gate, Jefferson Pines, and Jefferson at Fair Oaks; Jefferson Commons-Lawrence (KU); Jefferson Commons-TTU. (See Ex. 15, App. 322-330). 61The parties entered into a tolling agreement on May 5, 2005. (Ex. 54, App.1183-1185). Plaintiff did not file its Complaint against Defendants until March 4, 2009. (Dkt. #1.)
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accrues…" 28 U.S.C. § 2415. Plaintiff's allegations here are "in the nature of a tort claim," bringing the suit within the three year limitation period of 28 U.S.C. § 2415. Taigen, 303 F.Supp. 2d at 1144.
The FHA gives Plaintiff an advantage not generally afforded private plaintiffs, providing that the cause of action for compensatory damages brought by the United States does not accrue until the facts material to the right of action are known or reasonably could be known by an official of the United States charged with the responsibility to act in the circumstances. 28 U.S.C. § 2416(c). However, the legislative history expressly states that the principal application of this exclusion was intended for situations involving fraud. H. Rep. No. 1328, 89th Cong., 2d Sess., reprinted in S. Rep. 89-1328 at 5 (1966), as reprinted in 1966 U.S.C.C.A.N. 2502, 2507. And, courts have held that this provision should not be interpreted to render the statute of limitations meaningless. "Congress could not ... be completely forgiving of government delay and still be true to its motives in enacting a statute of limitations. Therefore, it is not necessary that relevant officials have all details of a claim before the statutory period begins to run; once the facts making up the 'very essence of the right of action' are reasonably knowable, the § 2416 bar is dropped." United States v. Kass, 740 F.2d 1493, 1497 (11th Cir.1984).
In cases not involving fraud or concealment, courts have found that the government could have reasonably known facts when those facts were available to the general public. For example, in United States v. Hess, 194 F.3d 1164 (10th Cir. 1999), a case involving an improper excavation through trespass, the court concluded that the government could have reasonably known of the extraction by the defendants when the defendants publicly advertised a gravel sale.
Here, any alleged violation occurred when the properties were completed. See Garcia, 526 F.3d at 460-462. These multi-family housing properties were advertised to the public and
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can be accessed by the public. Therefore, Plaintiff could have reasonably known of the alleged violations when they were offered for occupancy.62 Accordingly, the three year statute of
limitations bars Plaintiff's claim for compensatory damages on any property for which design and construction was completed before May 5, 2002.63 Plaintiff's claim for compensatory
damages regarding alleged violations at these 29 properties is barred.
B. Plaintiff's Claims For Injunctive Relief Are Inequitable. As Plaintiff waited, at the very least, nearly eight years to bring its claims against
Defendant, Plaintiff's claim for injunctive relief is inappropriate, unfair, and unnecessary, and
Plaintiff should be barred from obtaining the equitable relief it seeks.
The propriety of imposing equitable relief depends on the particular facts of each case.
Sanford v. Coleman Realty, 573 F.2d 173, 178-79 (4th Cir. 1978); Rogers v. 66-36 Yellowstone
Blvd. Cooperative Owners, Inc., 599 F. Supp. 79, 83 (E.D.N.Y. 1984). And, in assessing what, if
any, equitable relief should be granted, a district court should craft an equitable remedy that
corresponds in degree to the wrong inflicted. Rogers, 599 F. Supp. at 83. That is, equitable relief
should be "'a special blend of what is necessary, what is fair, and what is workable.'" Id.
Traditionally, the defense of laches cannot be asserted against the United States to its
claims for equitable relief because "time does not run against the king." Doggett v. United
States, 505 U.S. 647, 667 (1992). But the traditional rule is not "an absolute bar where
62Plaintiff had additional notice of at least some of the facts underlying its claim since it notified JPI of its investigation of Jefferson River Estate on June 21, 2001. See United States Responses to Defendants' First Set of Requests for Admissions, Request for Admission 1 (Ex. 55, App.1187). Likewise, between 2002 and 2008, Defendants produced to Plaintiff architectural and civil design drawings on 45 properties. (Id. at no. 6 (Ex. 55, App 1189)). 63 Design and construction of the following properties was completed before May 5, 2002: Jefferson CommonsLawrence (KU), Clarke-Atlanta (Heritage Commons), Jefferson Commons-TTU, Jefferson Commons at Star Ranch (Tucson II), Jefferson at Aviara, Jefferson at Emerald Park; Jefferson at Rock Creek, Jefferson at Fox Hollow, Jefferson at Coral Square, Jefferson Summit (Maitland), Morgan Falls, Jefferson River, Jefferson Park (Den Rock), Jefferson at Pin Oak, Jefferson at King Farm, Jefferson on the Plaza, Jefferson Farms, Jefferson at Preston, Villas at Beaver Creek, Jefferson at Melrose, Jefferson on the Parkway, Jefferson at Riverchase, Jefferson at Prestonwood Hills, Jefferson at Frankford, Jefferson Hill, Jefferson at Mission Gate, Jefferson Pines, Jefferson Lakes, Jefferson at Fair Oaks. (See Ex. 15, App. 322-330).
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unreasonable agency delay has caused hardship." Precious Metals Assocs., Inc. v. Commodity Futures Trading Comm'n, 620 F.2d 900, 909 (1st Cir. 1980). "Government agencies, like private corporations, have an obligation to conduct their affairs in a reasonably efficient manner." Texaco Puerto Rico Inc. v. Department of Consumer Affairs, 60 F.3d 867, 879 (1st Cir. 1995). Where the government has unreasonably delayed in bringing its case, the delay can be considered by the court in determine whether an equitable remedy is appropriate. Id. at 878-880 (unreasonable delay militates against equitable relief). As the Fifth Circuit has said, "When seeking an equitable remedy, Plaintiff is no more immune to the general principles of equity than any other litigant." United States v. Second Nat'l Bank of N. Miami, 502 F.2d 535, 548 (5th Cir. 1974).
In Equal Emp. Opportunity Comm'n v. Liberty Loan Corp., 584 F.2d 853, 857-58 (8th Cir. 1978), the Eighth Circuit affirmed the district court's decision to dismiss an employment discrimination case under its equitable powers, given that the agency had waited four years and four months to bring its suit and this unreasonable delay had impaired the defendant's ability to defend itself. In this case, design decisions and construction was undertaken decades ago and Plaintiff investigated Defendants for 8 years before filing a Complaint. This unreasonable delay has caused substantial prejudice to Defendant. Plaintiff seeks to have Defendants produce documents (e.g. site impracticality analysis or evidence of safe harbor use) that were created well beyond even the most conservative document retention policies and to have perfect recall on all decisions on every property long after most employees have left. Moreover, Plaintiff seeks broad equitable relief despite having presented no evidence to show that the condition of the properties reflects the condition of the properties when they were designed and constructed -alleging that all it takes is the Guidelines to prove a prima facie case. This position is
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problematic for assessing whether there has been a design and construction violation, and is particularly unfair under the circumstances of this case given the number of years and property ownership changes. Holding a developer liable for conditions at a property years after the property was sold unfairly subjects them to liability for conditions they had no control over.64
C. Retrofits Are Not An Appropriate Remedy For Sold Properties. Plaintiff's request for retrofits cannot be granted without the joinder of the current owners of the properties as co-defendants. Defendants do not own any of the 32 properties at issue and advised Plaintiff of this problem in the Answer. (Dkt. #18 at 11-12.) Current property owners are required parties under Rule 19 to effectuate any remedial relief sought by the plaintiff, including "retrofitting of the noncompliant properties." National Fair Housing Alliance v. A.G. Spanos Construction, Inc., 542 F. Supp. 2d 1054, 1066-67 (N.D. Cal. 2008); Roberts v. Royal Atlantic Corp., No. 03-2494, 2010 WL 749944, at *8 (E.D.N.Y. Mar. 3, 2010); Thompson v. Sand Cliffs Owners Ass'n, No. 96-270, 1998 WL 35177067, at *2-3 (N.D. Fla. Mar. 30, 1998). See also F.R.C.P. 19(a)(1) (parties are required if, "in [their] absence, the court cannot accord complete relief among existing parties."). There also can be no question that any decision mandating modifications to the properties will impair the proprietary interests of the owners. See F.R.C.P. 19(a)(1); Frotton v. Barkan, 219 F.R.D. 31, 32 (D. Mass. 2003). Given Plaintiff's decision to not timely add them, the owners are not able to protect their interests. Roberts, 2010 WL 749944 at *8 (unit owners not joined in ADA action had "the right to be heard" and "that right is violated by litigating this matter in their
64Because of this, state law typically recognizes statute of repose which limits liability after a specified period of time following the substantial completion of a construction project. See, e.g. Tex. Civ. Prac. & Rem. Code Ann. § 16.008. LCM acknowledged that architects benefit from statutes of repose because they cannot control the conditions of buildings they designed after the building is constructed and occupied for years. (Anderson Dep., 184: 14-187:25 (Ex. 20, App. 388-89)).
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absence"); Doty v. St. Mary Parish Land Co., 598 F.2d 885, 887 (5th Cir. 1979) (holding that "resulting judgment, although not legally binding on the [absentee]," would impair interests).
Further, injunctive relief may only bind (a) parties to a suit; (b) the parties' officers, agents, servants, employees, and attorneys; and (c) other persons who are in active concert or participation with the parties, their officers, agents, servants, employees, and attorneys. See F.R.C.P. 65(d). Here, Plaintiff chose not to join the owners. Zenith Radio, Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 110-11 (1969) ("a court has no power to adjudicate a personal claim or obligation unless it has jurisdiction over the person of the defendant."); Additive Controls & Measurement Systems, Inc. v. Flowdata, Inc., 96 F.3d 1390, 1394 (Fed. Cir. 1996).65
Even if the Court were inclined to override Plaintiff's decision and consider adding the current owners at this late stage, numerous current owners may not be added. Under Rule 19, in federal question cases, it is feasible to join absent persons only if they are subject to service of process. See F.R.C.P. 19(a)(1); F.R.C.P. 4(k); Godwin Gruber, P.C. v. Lambert, No. 03-1095, 2004 WL 813229, *2 (N.D. Tex. Apr. 13, 2004) (citing Irving v. Owens-Corning Fiberglas Corp., 864 F.2d 383, 385 (5th Cir. 1989). Plaintiff has failed to demonstrate that it would be able to secure service over these non-parties.
CONCLUSION WHEREFORE, Defendants respectfully request that the Court enter judgment summarily in favor of Defendants on all counts of Plaintiff's Complaint or, alternatively, a portion thereof with the remainder to be scheduled for trial by jury.
65This right to be heard extends not only to the liability or subject matter of the case, but also to the issue of whether the nonparty would be considered in "active concert or participation" with the parties to the case pursuant to Rule 65(d). Zenith Radio, 395 U.S. at 112 (holding that the lower court erred in entering judgment against a nonparty entity without making the Rule 65(d) determination in a proceeding to which that entity was a party).
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Respectfully submitted,
SESSIONS LAW FIRM P.C.
By:
_/s/ William Lewis Sessions_____ William Lewis Sessions Texas State Bar No. 18041500
Republic Center - Suite 4400 325 North St. Paul Street Dallas, Texas 75201 Telephone: (214) 217-8855 Facsimile: (214) 217-8856 Email: lsessions@sessionslaw.net

HOLLAND & KNIGHT LLP
By:
_/s/ Christopher B. Hanback____ Christopher B. Hanback (Admitted Pro Hac Vice) D.C. Bar No. 232579
_/s/ Lynn E. Calkins___________ Lynn E. Calkins (Admitted Pro Hac Vice) D.C. Bar No. 445854
_/s/ Rafe Petersen_____________ Rafe Petersen (Admitted Pro Hac Vice) D.C. Bar No. 465542
2099 Pennsylvania Avenue, N.W., Suite 100 Washington, D.C. 20006 Telephone: (202) 955-3000 Facsimile: (202) 955-5564 Email: christopher.hanback@hklaw.com Email: lynn.calkins@hklaw.com Email: rafe.petersen@hklaw.com

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Case 3:09-cv-00412-B Document 237 Filed 05/16/11 Page 62 of 62 PageID 11300

CERTIFICATE OF SERVICE
I hereby certify that on this 16th day of May, 2011, I electronically filed the foregoing document with the clerk of court for the U.S. District Court, Northern District of Texas, using the electronic case filing system of the court. The electronic case filing system sent a “Notice of Electronic Filing” to all attorneys of record who have consented in writing to accept this notice as service of this document by electronic means:

Kevin J. Kijewski U.S. Department of Justice Civil Rights Division 950 Pennsylvania Ave., N.W. Washington, D.C. 20530 kevin.kijewski@usdoj.gov
Pamela O. Barron U.S. Department of Justice Civil Rights Division 950 Pennsylvania Ave., N.W. Washington, D.C. 20530 pamela.barron@usdoj.gov
Andrea K. Steinacker U.S. Department of Justice Civil Rights Division 950 Pennsylvania Ave., N.W. Washington, D.C. 20530 andrea.steinacker@usdoj.gov
John R. Parker U.S. Attorney's Office 1100 Commerce Street, 3d Fl. Dallas, TX 75242 john.parker@usdoj.gov

Jennifer E. McAllister U.S. Department of Justice Civil Rights Division 950 Pennsylvania Ave., N.W. Washington, D.C. 20530 jennifer.mcallister@usdoj.gov
Neta Borshansky U.S. Department of Justice Civil Rights Division 950 Pennsylvania Ave., N.W. Washington, D.C. 20530 neta.borshansky@usdoj.gov
James T. Jacks U.S. Attorney's Office 1100 Commerce Street, 3d Fl. Dallas, TX 75242 jim.jacks@usdoj.gov
Susan L.S. Ernst U.S. Attorney's Office 1100 Commerce Street, 3d Fl. Dallas, TX 75242 susan.ernst@usdoj.gov

/s/ Counsel

Christopher B. Hanback for Defendants

 
 Case 3:09-cv-00412-B Document 243 Filed 11/10/11 Page 1 of 13 PageID 12893

IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS DALLAS DIVISION

UNITED STATES OF AMERICA

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§

Plaintiff,

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VS.

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NO.3 -09-CV-0412-B-BD

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JPI CONSTRUCTION, L.P., ET AL.

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Defendants.

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FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
This housing discrimination case is before the court on cross-motions for partial summary judgment. At issue is whether the conditions at some or all of 52 multifamily housing complexes designed, developed, or constructed by defendants in Texas and other states establish a pattern or practice of discrimination against disabled persons in violation of the Fair Housing Act ("FHA"), Title VIII of the Civil Rights Act of 1968, as amended, 42 U.S.C. § 3601, el seq. , and Title III of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S .C. § 12181, et seq. Because genuine issues of material fact preclude summary judgment for either party, both motions should be denied.
I. Defendants JPI Construction, L.P., Multifamily Construction, L.L.C., JPI Apartment Development, L.P. d/b/a JPI Campus Quarters, Lifestyle Apartment Development Service, L.L.C., Jefferson Bend, L.P. d/b/a Jefferson at Mission Gate Apartments , Jefferson Lake Creek, L.P. d/b/a Jefferson Center Apartments, and Apartment Community Realty, L.L.C., collectively referred to as "JPI," are engaged in the business of designing and developing multifamily housing complexes
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throughout the United States. (See Plf. MSJ App., Exh. 2 at 127 n.l , 131-41 & Exh. 3 at 148-56, 164-69, 177-81 , 188-92). The JPI portfolio of properties includes condominiums, apartments, garden-style communities, and student housing. (ld.; see also Supp. Jt. Stat. Rep. [Doc. #32] at 2425). In this lawsuit, the federal government accuses defendants of engaging in a pattern or practice of discrimination against disabled persons in violation of the accessibility requirements of the FHA and the ADA. (See Plf. Compl. at 7, ~ 28 & 8, ' 134). More particularly, plaintiff alleges that two JPI properties in Texas, J and more than 200 properties in 25 other states and the District of Columbia, are not designed or constructed in a matter so that: (I) the public and common use areas are readil y accessible to and usable by handicapped persons ; (2) doors are sufficiently wide to allow passage by handicapped persons in wheelchairs; and (3) units within the dwellings contain features of adaptive design, including accessible routes into and through the dwellings, light switches and environmental controls in accessible locations, and usable kitchens and bathrooms such that an individual in a wheelchair can maneuver about the space. (ld. at 5-6, ~~ 18-19 & 6-7, ~~ 23 -24). In addition to civil penalties, plaintiff seeks an order requiring defendants to retrofit the subject properties to bring them into compliance with federal accessibility laws. (ld. at 9-10).
To effectively manage this litigation, the court entered a case management order that required the parties to conduct discovery in phases. (See Doc. #3 5). The first phase was limited to 52 properties in 18 states and the District of Columbia that were jointly selected by the parties ("Phase I Properties"). (ld.). Deadlines were established for designating experts, completing discovery, and filing dispositive motions relating to the Phase I Properties. (ld.). As contemplated by the case
J The two Texas properties are Jefferson at Mission Gate, a garden-style apartment complex in Plano, Texas, and Jefferson Center Apartments, a garden-style apartment complex in Austin, Texas. (See Plf. Campi at 2, ~~ 4-5). Plaintiff does not identity any of the other JPI properties in its complaint.
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management order, plaintiff retained five accessibility experts who reviewed architectural plans, observed and measured various interior and exterior features ofthe properties, and inspected public use areas. Where possible, the experts physically inspected at least three units of each unit type at the subject properties, recording any observations and measurements that did not comply with federal accessibility regulations and guidelines. Written reports were prepared by each expert and filed with the court. Rebuttal experts retained by defendants also inspected the properties and filed written reports.
After the close of discovery, plaintiff notified defendants that the government would not pursue claims involving the design and construction of 20 of the Phase I Properties. Plaintiff then filed a motion for partial summary judgment as to liability with respect to the other 32 properties. In support of its motion, plaintiff points to more than 500 conditions' at the properties which allegedly deviate from the FHA Accessibility Guidelines ("FHA Guidelines") and the ADA Standards for Accessible Design (" ADA Standards"). According to plaintiff, each condition violates one or more of the federal accessibility regulations and, together, constitute a pattern or practice of discrimination against persons with disabilities. Defendants oppose the motion and seek partial summary judgment with respect to any claims involving the 20 properties no longer at issue in this lawsuit and the relief requested by plaintiff. Both motions have been fully briefed by the parties and are ripe for determination.
A. Summary judgment is proper when "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. elY. P. 56(a). The substantive law determines which facts are material. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248,106
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S.Ct. 2505,2510,91 L.Ed.2d 202 (1986). A party seeking summary judgment who does not have the burden of proof at trial need only point to the absence of a genuine fact issue. See Duffy v. Leading Edge Products, Inc. , 44 F.3d 308, 312 (5th Cir. 1995). This may be done by "pointing out 'the absence of evidence supporting the nonmoving party's case.''' Id. , quoting Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 913 (5th Cir.), cert. denied, 113 S.Ct. 98 (1992). By contrast, a movant who bears the burden of proof at trial must establish "beyond peradventure all of the essential elements of the claim or defense to warrant judgment in his favor." Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986) (emphasis in original). Once the movant meets its initial burden, the nonmovant must show that summary judgment is not proper. See Duckett v. City o/Cedar Park, 950 F.2d 272, 276 (5th Cir. 1992). The parti es may satisfy their respective burdens by tendering depositions, affidavits, and other competent evidence. See Topalian v. Ehrman , 954 F.2d 1125, 1131 (5th Cir.), cert. denied, 113 S.Ct. 82 (1992). All evidence must be viewed in the light most favorable to the party opposing the motion. See Rosado v. Deters, 5 F.3d 119, 123 (5th Cir. 1993).
B.
The FHA prohibits discrimination in housing on the basis of disability. See 42 U. S.C. § 3604(f)(I). "Discrimination" includes the failure to design and construct covered multifamily dwellings2 after March 13 , 1991, in such a manner that:
2 The term IIcovered multifamily dwellings, "as used in the statute, means: (A ) buildings consisting of4 or more units if such buildings have one or more elevators; and (8) ground floor units in oth er buildings con sisting of 4 or more units.
42 U.S .C. § 3604(1)(7).
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(i) the public use and common use portions ofsuch dwellings are readily accessible to and usable by handicapped persons; (ii) all the doors designed to allow passage into and within all premises within such dwellings are sufficiently wide to allow passage by handicapped persons in wheelchairs; and (iii) all premises within such dwellings contain the following features of adaptive design:
(I) an accessible route into and through the dwelling; (II) light switches, electrical outlets, thermostats, and other environmental controls in accessible locations; (III) reinforcements in bathroom walls to allow later installation of grab bars; and
(IV) usable kitchens and bathrooms such that an individual in a wheelchair can maneuver about the space.
Jd. § 3604(f)(3)(C). Compliance with the appropriate requirements of the American National Standard for buildings and facilities providing accessibility and usability for physically handicapped people, ANSI AI17.1, satisfies the design and construction requirements of paragraph (3)(C)(iii). See id. § 3604(f)(4). Likewise, compliance with state or local laws that incorporate the accessibility requirements of paragraph (3)(C) satisfies the requirements of that paragraph. See id. § 3604(f)(5)(A).
The FHA authorizes the Secretary of Housing and Urban Development ("HUD") to provide technical assistance to those seeking to implement the accessibility requirements ofthe Act. See id., § 3604(f)(5)(C). Pursuant to that authority, HUD has issued guidelines to assist builders and developers in complying with the FHA. See 24 C.F.R. Ch. I, Subch. A, App. II. However, the FHA
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Guidelines are not mandatory. See Barker v. Niles Bolton Assoc., Inc., 316 Fed.Appx. 933 , 941-42,

2009 WL 500719 at *7 ( 11 th Cir. Mar. 2, 2009), citing 24 C.F.R. Ch. I, Subch. A, App. III. Nor do

they establish performance standards or minimum requirements. ld. Rather, the guidelines

constitute only one of several safe harbors for compli ance with the FHA. ld. ; see also 24 C.F.R. §

I 00.205 (e)(2)(i).

I.

Relying exclusively on the written reports of their retained experts,' plaintiffs point to more

than 500 accessibility barriers at 32 JPI properties which allegedly deviate from specifications in the

FHA Guidelines and/or the ANSI standards. (See Plf. MSJ App., Exh. I at 1-125). In particular:

•

At 24 properties, continuous accessible pedestrian routes are

not provided to some dwelling units and public and common

use areas, or require the user to travel in the vehicular drive;

•

At 27 properties, required accessible routes have running

slopes and/or cross-slopes that exceed the 5% slope and 2%

cross-slope limits set forth in the Guidelines;

•

At 21 properties, required accessible routes have curb ramps

with slopes and cross-slopes that exceed the 8.33% and 2%

limits set forth in the Guidelines;

•

At 23 properties, required accessible routes have steps, curbs,

or abrupt level changes exceeding the 1/4-inch or II2-inch

beveled limit set forth in the Guidelines;

) The summary judgment record does not incl ude property-specific reports prepared by experts for either party. Instead, the experts filed their reports with the court as they completed rolling inspections ofthe properties during Phase I discovery. (See Plf. Exp. Reports, Docs. #45 , 47, 50, 53, 55, 57 , 60, 62, 64, 66, 70, 74, 90, 106, 108, 11 3, 119, 131, 156, 163, 169, 173 , 179, 18 3, 185, 187, 193, 195,202; Def. Exp. Repons, Docs. #78, 79, 86, 92, 93 , 96, 10 I, 102, 110, 112, 115, 116, 11 7, 127, 137,149,151, 152, 154,159, 162, 178, 19 1, 192, 199, 206, 207, 208, 213 , 2 15, 2 18, 220). For summary judgment purposes, both plaintiff and defendants rely on summaries of the reports prepared by th eir experts. (Se e Plf. MSJ App., Exh. I at 1- 125; Def. MSJ Resp. App., Exh. I at 1-85.1).
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•

At eight properties, thresholds at doorways in the public and

common use areas have an abrupt level change higher than

the 112-inch beveled limit set forth in the Guidelines;

•

At seven properties, maneuvering clearance at doors to the

public and common use areas is sloped at least 4%, which is

greater than the Guideline requirement for level maneuvering

clearance at doors;

•

At 13 properties, pull-side maneuvering clearance at doors

and gates in the public and common use areas is less than the

18-inch minimum set forth in the Guidelines;

•

At 22 properties, doors or gates in public and common use

areas have no reachable hardware or have hardware that

requires tight grasping, tight pinching, or twisting of the

wrists to operate;

•

At 13 properties, the unprotected underside of stairways

protrude into the path of travel, and no cane-detectible

barriers are provided to allow visually impaired persons to

safely navigate the route;

•

At 17 properties, accessible parking is not provided or is

noncompliant because there is no access aisle, the access aisle

has running slopes at 10% or greater or cross-slopes at 6% or

greater, or the access aisle is less than the 60-inch minimum

specified in the Guidelines;

•

At nine properties, the common use garages have an interior

width less than the 14-foot, 2-inch requirement specified in

the Guidelines;

•

At II properties, interior dwelling unit doors designed for

user passage have clear widths of less than 32 inches as

specified in the Guidelines;

•

At seven properties, thermostats are higher than 48 inches

above the floor as specified in the Guidelines;

•

At nine properties, the clearance between counters and all

opposing base cabinets, countertops, appliances, or walls is

less than the 40-inch minimum specified in the Guidelines;

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•

At five properties, the turning radius provided in U-shaped

kitchens is less than the 60-inch minimum specified in the

Guidelines; and

•

At five properties, clear floor space is not provided in the

bathroom to allow a wheelchair user to enter and close the

door.

(ld.; see also Plf. MSJ 8r. at 25-35). According to plaintiff, the pervasiveness of these conditions

at the 32 JPI properties constitutes a pattern or practice of discrimination against persons with

disabilities.

Defendants counter with reports from experts who inspected the same properties and found

them to be generally accessible and usable by handicapped persons. One defense expert, Paul

Sheriff, is a consultant who provides accessibility-related services to individuals with disabi lities,

architectural firms, and property owners. (Def. MSJ Resp. App., Exh. 32 at 597, 602). Using a

custom-built wheelchair specially designed for evaluating accessibility, Sheriff, who is a paraplegic,

conducted "roll-thru" surveys at 12 of the 32 JPI properties. (See id., Exh. 32 at 599, 607-08, 612;

Docs. # 102, 110, 117, 137,149, 152, 154,208,2 13 , 215,218, 220). According to Sheriff, the

properties he surveyed have "very good overall and general accessibility, usability, and

adaptability[,J" notwithstanding a few "punch-list type" items that negatively impact accessibility.

(Def. MSJ Resp. App., Exh. 32 at 617). Thus, Sheriff concluded that the properties were designed

and constructed in compliance with the FHA. (See id., Exh. 32 at 617-18). A similar conclusion

was reached by Alison Vredenburgh, another expert who conducted "roll thru" surveys at five JPI

properties. (See id., Exh. 30 at 572; Docs. #78, 92, 206, 207).4

4 Plaintiff objects to the methodology used by Sheriff and Vredenburgh as "inherently subjective and specific to his physical characteri stics and abilities." (See Plf. MSJ Br. at 42). However, at least one court has relied on sim ilar testimony in ruling on a motion for summary judgment in an FHA civil enforcement case. See United States v. Pacific
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Two other defense experts conducted property surveys similar to those conducted by plaintiffs experts. Between them, Mark Wales and Peter Skarzenski surveyed all but one of the remaining Phase I Properties and concluded that the properties complied with the requirements of federal law and were accessible to and usable by persons with disabilities. (See Def. MSJ Resp. App., Exh. 28 at 543 & Exh. 41 at 811; Docs. #79, 86, 93, 96,101,112, liS, 116, 127, 151 , 159,
162, 178, 191, 192, 199). In one of his reports, Wales refuted the methodology and conclusions of
plaintiffs experts. (See Def. MSJ Resp. App. , Exh. 28 at 485-501,501-42). Among other things, Wales criticized the finding that several of the JPI properties lack continuous accessible pedestrian routes between some dwelling units and public use areas, explained that the routes identified by plaintiff were not intended to be the "accessible" routes, and described alternative routes that meet FHA criteria. (See, e.g. id., Exh. 28 at 504-05). Wales also challenged the accuracy of slope measurements taken by plaintiffs experts and demonstrated through measurements taken from more than one point on the same sidewalk how the slope meets the FHA Guidelines. (See id., Exh. 28 at 492-94).
2. In order to obtain summary judgment on its FHA claim, plaintiff must prove "beyond peradventure" that defendants participated in a pattern or practice of discrimination. See 42 U.S.C. § 3614(a).5 A "pattern or practice of discrimination" is established when the evidence shows that
Northwest Electrical Co., No. CV-O 1-0 19-5-BLW, 2003 WL 24573548 at *13 (D. Idaho Mar. 21,2003). Moreover, Daubert-type objections, including objections to the methodology used by an expert, are generally not considered at the summary judgment stage. See Nielsen v. Alcon, Inc., No. 3-08-CV-2239-B-BD, 2011 WL 4529762 at *5 (N.D. Tex. Sept. 2, 2011), rec. adopted, 2011 WL 4529674 (N.D. Tex. Sept. 30,2011).
, The FHA also authorizes the government to bring a civil enforcement action if"any group of persons has been denied any of the rights granted by this subchapter and such denial raises an issue of general public importance." See 42 U.S.C. § 3614(a). Although plaintiff generally alleges in its complaint that the failure of defendants to design and construct multifamily dwellings in accordance with FHA Guidelines jeopardizes an important public interest, (see Plf. CampI. at 7, , 28), the summary judgment briefing focuses almost exclusively on the panern and practice claim.
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"discrimination was the company's standard operating procedure[,] the regular rather than the unusual practice." Int'l Brotherhood o/Teamsters v. Un ited States, 431 U.S. 324, 336, 97 S.C!. 1843 , 1855 ,52 L.Ed.2d 396 (1977). Although isolated, accidental, or sporadic misconduct does not rise to the level of a pattern or practice of discrimination, see id., 97 S.C!. at 1855, there is no threshold number of incidents that must occur before the government can bring suit against a party. United States v. Habersham Properties, Inc., 319 F.Supp.2d 1366, 1373 (N.D. Ga. 2003), citing United States v. Bob Lawrence Realty, Inc., 474 F.2d 115, 123-24 (5th Cir. 1973). Each case must be evaluated on an individual basis and "tum on its own facts." Id. The determination of whether evidence indicates a pattern or practice of discrimination is ordinarily a question offact for the jury. Id. ; see also United States v. Garden Homes Management Corp., 156 F.Supp.2d 413, 420 (D.N.J. 2001).
Judged against these standards, the court has little difficulty concluding that plaintiff is not entitled to summary judgment on its FHA pattern or practice claim. Even if all the conditions identified by plaintiff deviate fro m the specifications in the FHA Guidelines, the guidelines are neither mandatory nor prescribe specific requirements which, if not met, would constitute unlawful discrimination. See Barker, 2009 WL 500719 at *7, citing 24 C.F.R. Ch. I, Subch. A, App. III (1991). There are other ways to achieve compliance with the accessibility requirements of the FHA. See 56 Fed.Reg. 9472, 9478 (Mar. 6, 1991 ).6 Moreover, defendants have adduced expert testimony
6 When the FHA Guidelines were published in the Federal Register, a number of commenters asked HUD to categorize the Guidelines as minimum requirements, rather than as performance standards. The agency responded:
The Guide lines adopted by the Department provide one way in which a builder or developer may achieve compliance with the Act's accessibility requirements. There are other ways to achieve compliance with the Actls accessibility requirements. . . Given this fact, it would be inappropriate on the part of the Department to constrain designers by presenting the Fair Housing Accessibility Guidelines as minimum
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that all 32 JPI properties are accessible to and usable by persons with disabilities. It is particularly within the jury's ken to examine the more than 500 accessibility barriers alleged by plaintiff and determine whether such evidence constitutes a pattern or practice of discrimination. See, e.g. Fair Housing Council v. Village o/Glde St. Andrews, inc., 250 F.Supp.2d 706, 720 (W.D. Ky. 2003) (denying motion for summary judgment in FHA disability discrimination case where only uncontested evidence was that properties failed to meet requirements of FHA Guidelines); United States v. Hallmark Homes, inc., No . CV-01-432-N-EJL, 2003 WL 23219807 at *8 (D. Idaho Sept. 29,2003) (government not entitled to summary judgment with respect to liability under FHA where defendants offered some evidence to dispute alleged violations); United States v. Pacific Northwest Electrical Co., No . CV-OI-019-S-BLW, 2003 WL 24573548 at *13 (D. Idaho Mar. 21,2003) (same) .'
C. The ADA prohibits discrimination against persons with disabilities by "place[s) of public accommodation" operated by private entities. See 42 U.S.C . § 12182(a). "Discrimination" includes a failure to design and construct such places of public accommodation after January 25,1993, that
requirements. Builders and developers should be free to use any reasonable design that obtains a result consistent with th e Act's requirements[.] 56 Fed. Reg. at 9478. 7 A number of courts outs ide th e Fifth Circuit have held that summary judgment on the issue of liability in a design and construction case is appropriate where the plaintiff demonstrates that a covered dwelling does not comply with the FHA Guidelines or the ANSI standards, and defendants fail to submit evidence that the property complies with any other access ibility standard. See. e.g. United States v. Tanski, No. 1-04-CY-714, 2007 WL 101 7020 at *11 (N.D.N.Y. Mar. 30, 2007); United States v. Taigen & Sons. Inc., 303 F.Supp.2d 11 29, 1154 (D. Idaho 2003); United States v. Quality Built Constr., Inc., 309 F.Supp.2d 756, 763 (E.D.N.C. 2003). Even if this court adopts that burdenshifting framework, summary judgment is not proper because defendants have adduced at least some evidence that the allegedly defective conditions identified by plaintiffcomply with federal accessibility regu lations and, thus, do not violate the FHA at al l.
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are "readily accessible to and usable by" persons with disabilities. Id. § 12183(a)(l). Although residential apartment buildings are not generally subject to the ADA, leasing offices within such complexes have been held to constitute "places of public accommodation" for purposes of the statute. See No Barriers, Inc. v. BRH Texas GP, L.L.c., No. 3-01-CV-344-R, 2001 WL 896924 at *2 (N.D. Tex. Aug. 2, 2001).
According to plaintiff, 33 of the conditions that allegedly violate the FHA Guidelines also violate the ADA Standards -- regulations promulgated by the DO] that establish minimum technical requirements for compliance with the ADA. (See Plf. MS] App. , Exh. 1 at 3-125). In addition to those conditions, plaintiff has adduced some evidence that the leasing offices at six ]PI properties lack accessible parking. (See id., Exh. 1 at 98-99). However, Mark Wales, one of the experts retained by defendants, claims that plaintiffs experts misinterpreted the ADA Standards with respect to parking spaces, signage, slope criteria, and accessible routes. (See Def. MS] Resp. App., Exh. 28 at 501-03). As with plaintiffs FHA claim, these competing expert reports raise genuine issues of material fact concerning violations of the ADA Standards.
D.
Defendants seek summary judgment with respect to any claims involving the 20 properties no longer at issue in this lawsuit and the relief requested by plaintiff. That plaintiff did not rely on the 20 properties in moving for summary judgment does not necessarily mean that there are no genuine issues ofmaterial fact concerning those properties. To the contrary, as previously discussed, the determination of whether evidence indicates a pattern or practice of discrimination is ordinarily a question of fac t for the jury. See Habersham Properties , 319 F.Supp.2d at 1373; Garden Homes Management, 156 F.Supp.2d at 420. Nor will the court consider any arguments related to remedies
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and damages at this stage of the proceeding. Where, as here, there is a genuine dispute as to the threshold issue ofliability, such issues are best left for trial or beyond. See Nielsen v. Alcon, Inc., No. 3-08-CV-2239-8-8D, 2011 WL 4529762 at *13 (N.D. Tex. Sep. 2, 2011), rec. adopted, 2011 WL 4529674 (N.D. Tex. Sep. 30, 2011). Therefore, the court should deny summary judgment on all remaining issues and claims.
RECOMMENDATION Plaintiff's motion for partial summary judgment [Doc. #235] and defendants' cross-motion for partial summary judgment [Doc. #237] should be denied. A copy of this report and recommendation shall be served on all parties in the manner provided by law. Any party who objects to any part of this report and recommendation must file specific written objections within 14 days after being served with a copy. See 28 U.S.C. § 636(b)(l); FED. R. CIY. P. nCb). In order to be specific, an objection must identify the specific finding or recommendation to which objection is made, state the basis for the objection, and specify the place in the magistrate judge's report and recommendation where the disputed determination is found. An objection that merely incorporates by reference or refers to the briefing before the magistrate judge is not specific. Failure to file specific written objections will bar the aggrieved party from appealing the factual findings and legal conclusions ofthe magistrate judge that are accepted or adopted by the district court, except upon grounds ofplain error. See Douglass v. UnitedServices Automobile Ass'n, 79 F.3d 1415,1417 (5th Cir. 1996). DATED: November l0,2011.
LAN STATES MAGISTRATE JUDGE
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 Case 3:09-cv-00412-B Document 301 Filed 06/08/12 Page 1 of 21 PageID 17317

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

UNITED STATES OF AMERICA, Plaintiff,
v. JPI CONSTRUCTION L.P., et al.,
Defendants.

§
§
§ CIVIL ACTION NO. 3:09-cv-0412-B
§
§
§

DEFENDANTS' TRIAL BRIEF

WILLIAM LEWIS SESSIONS Texas Bar No. 18041500
SESSIONS & SCHAFFER, P.C. Republic Center, Suite 4400 325 North St. Paul Street Dallas, Texas 75201 Direct Telephone: (214) 217-8855 Direct Facsimile: (214) 723-5346 Email: lsessions@sstexaslaw.com

CHRISTOPHER B. HANBACK (Admitted Pro Hac Vice) D.C. Bar No. 232579
LYNN E. CALKINS (Admitted Pro Hac Vice) D.C. Bar No. 445854
RAFE PETERSEN (Admitted Pro Hac Vice) D.C. Bar No. 465542
PAUL MCDERMOTT (Admitted Pro Hac Vice) Florida Bar No. 855901
HOLLAND & KNIGHT LLP 2099 Pennsylvania Avenue, N.W., Suite 100 Washington, D.C. 20006 Telephone: (202) 955-3000 Facsimile: (202) 955-5564 Email: christopher.hanback@hklaw.com Email: lynn.calkins@hklaw.com Email: rafe.petersen@hklaw.com Email paul.mcdermott@hklaw.com

Case 3:09-cv-00412-B Document 301 Filed 06/08/12 Page 2 of 21 PageID 17318
TABLE OF CONTENTS INTRODUCTION ...............................................................................................................1 ARGUMENT .......................................................................................................................3 I. PLAINTIFF CANNOT MEET ITS BURDEN OF PROOF BY
DEMONSTRATING THAT THE PROPERTIES WERE DESIGNED AND CONSTRUCTED IN VIOLATION OF THE FHA. ...............................................3 A. Congress Did Not Mandate Any Particular "Standard" Or Code Of
Measurements That Must Be Met In Order To Comply With The FHA..............................................................................................................3 B. The Properties Were Designed and Constructed to be Accessible, Usable, and Adaptable. ................................................................................5 C. As A Matter of Law, Divergence From The "Safe Harbors" Is Not Prima Facie Evidence Of Discrimination. ..................................................6 D. The FHA Allows For The Properties To Incorporate Four Features Of Adaptive Design. ....................................................................................7 II. EVEN IF PLAINTIFF HAS MET ITS AFFIRMATIVE PROOF BURDEN, DEFENDANTS HAVE PRESENTED SUBSTANTIAL EVIDENCE REFUTING PLAINTIFF'S ALLEGATIONS. ........................................................8 A. Defendants' Experts Found That The Properties Are Accessible And Usable. .........................................................................................................8 B. Plaintiff Fails To Show A Pattern Or Practice Of Discrimination...............9 III. EVEN IF LIABILITY COULD BE PROVEN, PLAINTIFF IS NOT ENTITLED TO THE RELIEF IT SEEKS.............................................................10 A. Plaintiff's Claims For Penalties And Damages Are Time Barred And Without Evidentiary Support. ....................................................................10 B. Plaintiff's Claims For Injunctive Relief Are Inequitable. ..........................12 C. Retrofits Are Not An Appropriate Remedy For Sold Properties...............12 CONCLUSION ..................................................................................................................13
i

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CASES

Page(s)

Access Now, Inc. v. Ambulatory Surgery Center Group, Ltd., 2001 WL 617529 (S.D. Fla. May 2, 2001) ................................................................................8

Ass'n for Disabled Americans, Inc. v. Concorde Gaming Corp., 158 F. Supp. 2d 1353 (S.D. Fla. 2001) ......................................................................................6

Baltimore Neighborhoods, Inc. v. Rommel Builders, Inc., 40 F. Supp. 2d 700 (D. Md. 1999) .............................................................................................7

Cherry v. City College of San Francisco, 2006 WL 6602454 (N.D. Cal. Jan. 12, 2006) ............................................................................8

Equal Emp. Opportunity Comm'n v. Liberty Loan Corp., 584 F.2d 853 (8th Cir. 1978) ...................................................................................................12

Fair Hous. Council, Inc. v. Vill. of Olde St. Andrews, Inc., 210 Fed. Appx. 469 (6th Cir. 2006)...........................................................................................4

Frotton v. Barkan, 219 F.R.D. 31 (D. Mass. 2003)................................................................................................13

Garcia v. Brockway, 526 F.3d 456 (9th Cir. 2008) .....................................................................................................8

Int’l Bd. of Teamsters v. United States, 431 U.S. 324 (1977).................................................................................................................10

Memphis Ctr. for Independent Living v. Grant, No. 01-2069 (W.D. Tenn. Oct. 2, 2003.) ...................................................................................6

National Fair Housing Alliance v. A.G. Spanos Construction, Inc., 542 F. Supp. 2d 1054 (N.D. Cal. 2008) ...................................................................................13

Parr v. Kapahulu Investments, Inc., 2000 WL 687646 (D. Haw. May 16, 2000) ...............................................................................8

Phillips v. Downtown Affordables, LLC, 2007 WL 2668637 (D. Haw. Sept. 5, 2009) ..............................................................................7

Roberts v. Royal Atlantic Corp., 2010 WL 749944 (E.D.N.Y. Mar. 3, 2010) .............................................................................13

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Case 3:09-cv-00412-B Document 301 Filed 06/08/12 Page 4 of 21 PageID 17320
Rodriguez v. Investco, L.L.C, 305 F. Supp. Ed 1278 (M.D. Fla. 2004) ....................................................................................6
Sanford v. Coleman Realty, 573 F.2d 173 (4th Cir. 1978) ...................................................................................................12
Thompson v. Sand Cliffs Owners Ass'n, 1998 WL 35177067 (N.D. Fla. Mar. 30, 1998) .......................................................................13
United States v. Hess, 194 F.3d 1164 (10th Cir. 1999) ...............................................................................................11
United States v. Hallmark Homes, Inc., 2003 WL 23219807 (D. Idaho Sept. 29, 2003)........................................................................10
United States v. Kass, 740 F.2d 1493 (11th Cir.1984) ................................................................................................11
United States v. Pacific Northwest Electric Inc., 2003 WL 24573548 (N.D. Idaho Mar. 21, 2003) ............................................................6, 7, 10
United States v. Second National Bank of North Miami, 502 F.2d 535 (5th Cir. 1974) ...................................................................................................12
United States v. Taigen & Sons, Inc., 303 F. Supp. 2d 1129 (D. Idaho 2003) ..........................................................................4, 10, 11
United States v. W. Peachtree Tenth Corp., 437 F.2d 221 (5th Cir. 1971) .....................................................................................................9
STATUTES 28 U.S.C. § 2415............................................................................................................................11 28 U.S.C. § 2462............................................................................................................................10 42 U.S.C. §§ 3601–3619..................................................................................................................1 42 U.S.C. §§ 12181–12189..............................................................................................................1 OTHER AUTHORITIES 24 C.F.R. § 100.205 .....................................................................................................................4, 5 56 Fed. Reg. 9472-9515...................................................................................................................6 59 Fed. Reg. 33362 ..........................................................................................................................7 72 Fed. Reg. 39540, 39541-42.........................................................................................................6
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Case 3:09-cv-00412-B Document 301 Filed 06/08/12 Page 5 of 21 PageID 17321 Fed. R. Civ. P. 19(a)(1)..................................................................................................................13 H.R. Rep. No. 100-711 ................................................................................................................4, 8
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Defendants set forth in this trial brief a discussion of the evidence relevant to the claims asserted against them by the Plaintiff along with certain legal issues with respect to those claims that they anticipate will arise at trial.
INTRODUCTION This trial is the culmination of a governmental investigation eclipsing a decade that has borne no f ruit. Plaintiff's Complaint alleged a pattern and practice of willful discrimination concerning the design and construction of 52 properties under two laws.1 However, there is no evidence concerning a pattern or practice of discrimination, nor is there evidence of intentional or willful discriminatory conduct. In fact, following discovery, Plaintiff determined not to pursue claims as to 20 properties. The remaining 32 properties are equally accessible, usable and adaptable. This suit is not predicated on evidence of any disabled person actually being affected by the conditions of the properties. Rather, Plaintiff seeks to demonstrate discrimination based upon measuring the current conditions of the properties and comparing the dimensions to those set forth in certain optional guidance approved by the Department of Housing and Urban Development ("HUD"). Such guidance documents were held out to the public as not mandatory and HUD has stated that their suggested dimensions go beyond what is required by the FHA. Nonetheless, Plaintiff's entire case is built on use of such optional guidance. There is substantial evidence showing that the properties were designed and constructed in accordance with the accessibility laws. The communities were designed and constructed over
1The suit was bought pursuant to the Fair Housing Act, as amended, 42 U.S.C. §§ 3601–3619 ("FHA"), and the Americans with Disabilities Act, 42 U.S.C. §§ 12181–12189 ("ADA"). Because this action involves the design and construction of multi-family housing complexes (i.e., apartment buildings), almost all issues contested by Plaintiff relate to questions of compliance with the FHA. The claims under the ADA relate exclusively to the few issues in public areas (e.g., the leasing center and its parking).
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a 20 year period, across 19 states, with over 600 individuals working at more than 50 different professional design firms. Defendants hired reputable architects and engineers and required them to design the properties in accordance with the accessibility laws and all local codes and requirements. The corporate records show diligence on the part of both the design professionals and the Defendants to ensure that the properties were designed and constructed to be accessible, usable and adaptable, including use of the safe harbors.
Plaintiff posits an extreme interpretation of the accessibility laws. The FHA does not include a standard of total accessibility -- nor does it prohibit steps on walkways, sidewalks that slope along with the terrain and units or common space amenities that are not accessible to wheelchairs. The expert inspections of Defendants confirm that the properties meet, if not exceed, the minimal requirements of the FHA and ADA. In responding to Plaintiff's allegations, Defendants are not limited to using HUD-approved "standards" to demonstrate compliance.
The FHA requires that common areas and apartment units be designed to reasonably accommodate the needs of most persons with disabilities. The law does not require the designer to anticipate and provide for every varying need of the wide spectrum of disabilities. Such needs are taken care of on an as-requested basis through adaptation of the unit. Defendants have shown a commitment to meet the needs of disabled residents by adapting the properties to meet their specific needs, whether it is removing cabinetry or adding accessible parking.
The properties are of varying age, with many designed and constructed almost two decades ago. Yet, Plaintiff chooses to disregard the effects of environmental and other maintenance issues occurring over the life of the properties since construction. Many sidewalks and parking areas have shifted due to soil and environmental conditions (e.g., soil with high clay content swells and shrinks); features of the properties have outlived their natural life or have
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fallen into disrepair; and new owners have undertaken routine renovations -- such as replacing
door knobs, moving accessible parking, replacing flooring, or adding new amenities.
Plaintiff has no evidence to support damages or civil penalties and such claims are time
barred for most properties. Further, Defendants do not own any of the 32 properties. Despite
this substantial deficiency, Plaintiff continues to seek substantial changes to properties without
naming the current owners of those properties as parties to this action.
ARGUMENT I. PLAINTIFF CANNOT MEET ITS BURDEN OF PROOF BY DEMONSTRATING
THAT THE PROPERTIES WERE DESIGNED AND CONSTRUCTED IN VIOLATION OF THE FHA.
Plaintiff cannot meet its burden of demonstrating that the properties were not designed
and constructed in accordance with the FHA.
A. Congr ess Did Not Mandate Any Par ticular " Standar d" Or Code Of Measur ements That Must Be Met In Or der To Comply With The FHA.
On its face, the FHA has only six broad requirements of accessibility, usability, and adaptability -- requiring "covered units"2 and the public and common areas to have the
following:
(i) the public use and common use portions of such dwellings are readily accessible to and usable by handicapped persons; (ii) all the doors designed to allow passage into and within all premises within such dwellings are sufficiently wide to allow passage by handicapped persons in wheelchairs; and (iii) all premises within such dwellings contain the following features of adaptive design: ( I) an accessible route into and through the dwelling; (II) light switches, electrical outlets, thermostats, and other environmental controls in accessible locations; (III) reinforcements in bathroom walls to allow later installation of grab bars; and (IV) usable kitchens and bathrooms such that an individual in a wheelchair can maneuver about the space.
2Not every apartment unit is subject to the FHA. Congress defined "covered multifamily dwellings" as "(A) buildings consisting of 4 or more units if such buildings have one or more elevators; and (B) ground floor units in other (non-elevatored) buildings consisting of 4 or more units." 42 U.S.C. § 3604(f)(7).
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42 U.S.C. § 3604( f)(3)(C)(i)-(iii).3 With these provisions, Congress specifically rejected "a standard of total accessibility [that] would require that every entrance, doorway, bathroom, parking space, and portion of buildings and grounds be accessible" choosing instead "to use a standard of 'adaptable' design" that would "provide usable housing for handicapped persons without necessarily being significantly different from conventional housing." (H.R. Rep. No. 100-711, at 18, reprinted in 1988 U.S.C.C.A.N. 2173, 2179, 2187. The requirements of the FHA are "modest". (Id. at 2179). Given the lack of mandatory criteria or necessary "standards", the sole dispositive question at issue in an FHA design and construction case is whether the dwelling units and common areas as designed and constructed are reasonably accessible to most persons with disabilities. See Fair Hous. Council, Inc. v. Vill. of Olde St. Andrews, Inc., 210 Fed. Appx. 469, 482 (6th Cir. 2006). In other words, accessibility itself is the ultimate touchstone by which conformity with the FHA is determined. Taigen & Sons, Inc., 303 F. Supp. at 1151.
For those seeking clear measures of compliance (i.e. safe harbor from liability), the FHA provides that compliance with the requirements of the American National Standards Institute Inc. ("ANSI") accessibility standards (commonly known as ANSI A117.1) "suffices to satisfy" the FHA. 42 U.S.C. § 3604( f)(4). Yet, Congress made clear that this section of the Act "is not intended to require that designers follow this standard exclusively, for there may be other local or state standards with which compliance is required or there may be other creative methods of meeting these standards." (H.R. Rep. No. 100-711, at 27 n.71 (emphasis added)). Second, Congress established that if a municipality has incorporated "into its laws the requirements set forth in paragraph (3)(C)," then compliance with the municipal law satisfies the requirements of
3In addition to those six features, the entrance to the building itself must be accessible, 24 C.F.R. § 100.205(a). However, there is an exception to this requirement where it is impractical to do so because of the terrain or unusual characteristics of the site. Id. Although the regulations give examples, there is no set test for site impracticality.
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the FHA. 42 U.S.C. § 3604(f)(5)(A).4

B. The Pr oper ties Wer e Designed and Constr ucted to be Accessible, Usable, and Adaptable.
The evidence makes clear that Defendants designed and constructed the properties in

compliance with the federal accessibility laws. T his is proven by the thousands of documents

produced from the development and construction files, the expert reports, and the fact witness

testimony including:

• During the 30(b)(6) deposition for the named Defendants, David Motsenbocker

explained the many efforts undertaken to meet the requirements of the

accessibility laws including (1) requiring design professionals to meet certain

standards, (2) mandating responsibility for overseeing compliance; and (3)

multiple layers of accessibility review from the inception of the project to final

construction including third party reviews and checklists for use during the design

and construction phase.

(Dkt. #237-7, App. 99-101).

• Mr. Skarzenski, an architect at an architectural firm that designed a large number of the properties at issue, confirmed that in his role reviewing the plans for accessibility compliance, he would review the plans "to the building code in its entirety, and then also to the ANSI '86 and the Fair Housing Guidelines in its entirety." (Dkt. #237-14, App. 278). Another architecture firm, Niles Bolton, described a similar process, explaining that "every project that we have designed has been designed to an accessibility standard…." (Dkt. 237-3, App. 22-26), (Dkt. #237-11, App. 228-47), (Dkt. #237-15, App. 288).

• Mr. Knight, a civil engineer, described the role of the civil engineer and the efforts to ensure that accessibility was addressed in relation to issues such as slope and grade, soil, sidewalk placement, and parking. ( Dkt. #237-12, App. 252-58)

• Throughout construction, either the architecture firm, an expert, or Defendants themselves would conduct inspections for quality control and conformance with the plans and the accessibility laws. (Dkt. #237-11, App. 232); (Dkt. #237-14, App. 283)
Hence, the overwhelming evidence is of efforts at compliance with architects often certifying

that the properties meet the FHA.

4See also 24 C.F.R. § 100.205(f). Numerous states, including Texas, Massachusetts and California have accessibility laws and codes that mirror and/or exceed the federal requirements.
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C. As A Matter of Law, Diver gence Fr om The " Safe Har bor s" Is Not Pr ima Facie Evidence Of Discr imination.
Plaintiff seeks to demonstrate "violations" of the FHA solely by showing that certain features were found to have dimensions that vary from measurements set forth in a combination of three "safe harbors" -- no effort was made to determine whether the dwelling units or common areas at the properties are accessible, usable or adaptable.
Congress empowered HUD with the limited authority to "provide technical assistance to States and units of local government and other persons to implement the requirements of" the Act. See 42 U.S.C. § 3604(f)(5)(C). In HUD's own words, "[t]here is no statutory authority to establish one nationally uniform set of accessibility standards." 56 Fed. Reg. at 9478. Since 1991, HUD has recognized ten different "safe harbors", 72 Fed. Reg. 39540, 39541-42 (July 18, 2007), including the Guidelines.5 By their very nature, "safe harbors" are not an inflexible directive forming the basis for liability. Rodriguez v. Investco, L.L.C., 305 F.Supp.2d. 1278, 1282, fn. 15 (M.D. Fla. 2004); Ass'n for Disabled Americans, Inc. v. Concorde Gaming Corp., 158 F.Supp.2d 1353, 1362 (S.D. Fla. 2001). In HUD's words, the Guidelines do not "prescribe specific requirements which must be met, and which, if not met, would constitute unlawful discrimination under the Fair Housing Act." 56 Fed. Reg. at 9473.
Moreover, HUD made clear that the agency "has not categorized the final Guidelines as either performance standards or minimum requirements. T he minimum accessibility requirements are contained in the Act." 56 Fed. Reg. at 9478.6 Thus, the fact a property does not strictly conform to the Guidelines "does not constitute unlawful discrimination." Memphis Ctr. for Independent Living v. G rant, No. 01-2069, at 7 ( W.D. Tenn. Oct. 2, 2003) (slip op.);
5HUD, Notice of Final Fair Housing Accessibility Guidelines, 56 Fed. Reg. 9472-9515 (Mar. 6, 1991). 6 Similarly, "a dwelling unit that complies fully with the ANSI Standard goes beyond what is required by the [FHA]," and is "more stringent." 56 Fed. Reg. at 9476 (emphasis added).
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Pacific Northwest Electric Inc., 2003 W L 24573548 at *12. Defendants may "seek alternate ways to demonstrate that they have met the requirements of the Fair Housing Act." Id. at 9473; 59 Fed. Reg. 33362 (1994); United States v. Pacific Northwest Electric Inc., No. 01-019, 2003 WL 24573548, *12 (N.D. Idaho Mar. 21, 2003). Such alternate ways are not limited to the safe harbors, regardless of whether Plaintiff considers them "objective" standards (which they are not). 7
D. The FHA Allows For The Pr oper ties To Incor por ate Four Featur es Of Adaptive Design.
Premises within covered dwellings must contain four "features of adaptive design": (1 ) an accessible route into and through the dwelling; (2) light switches, electrical outlets, thermostats, and other environmental controls in accessible locations; (3) reinforcements in bathroom walls to allow later installation of grab bars; and (4) usable kitchens and bathrooms such that an individual in a wheelchair can maneuver about the space. 42 U.S.C. § 3604(f)(3)(C)(iii). Plaintiff has made the words "adaptive design" meaningless by asserting that the properties cannot be changed to meet the needs of tenants.
Adaptive design is central to meeting the goals of the FHA as it allows units to be changed to meet the specific, but unanticipated needs of the disabled resident. "Adaptive design" or "adaptability" refers to dwelling units that "can be adjusted or adapted without renovation or structural change." Baltimore Neighborhoods, Inc. v. Rommel Builders, Inc., 40 F. Supp.2d 700, 708 (D. Md. 1999)(quoting HUD); Phillips v. Downtown Affordables, LLC, No. 06-00402, 2007 WL 2668637, at *7-8 (D. Haw. Sept. 5, 2007) . The evidence will show that there are a w ide range of adaptable features that can be built into properties to allow for later alteration by maintenance staff such as changing base cabinets, thermostats, thresholds, door swing, floor
7 Defendants' experts explain that the safe harbors are actually the result of a consensus voting process. (Wales Dep., 76:12-78:9 (Dkt. #237-28, App. 458-59); Vredenburgh Dep., 25:9-27:23 (Dkt. #237-36, App. 626)).
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coverings or appliances. (Dkt. #237-11, App. 219-21), (Dkt. #237-28, App. 461), (Dkt. #237-29,
App. 466-70), (Dkt. #237-36, App. 627).
II. EVEN IF PLAINTIFF HAS MET ITS AFFIRMATIVE PROOF BURDEN, DEFENDANTS HAVE PRESENTED SUBSTANTIAL EVIDENCE REFUTING PLAINTIFF'S ALLEGATIONS. Defendants' experts contest every allegation in this case and demonstrate that the
properties are accessible to most persons with disabilities.
A. Defendants' Exper ts Found That The Pr oper ties Ar e Accessible And Usable. Defendants will offer four different experts who analyzed the properties with different
(although complimentary) methodologies.
Defendants offer two experts, Mark Wales and Peter Skarezenski, to render opinions
based on a conventional interpretation of the safe harbors and other building codes and
standards. T hese experts will explain numerous problems with Plaintiff's conclusions (both interpretation of safe harbors8 and factual issues such as overlooking obvious maintenance problems)9 and will affirmatively demonstrate that the properties are indeed accessible and
usable. Their analysis is based on a wide spectrum of technical assistance materials (including
the safe harbors) and empirical research.
Consistent with Congress's intent that there may be "other creative methods" of meeting
the Act, H.R. Rep. No. 100-711, at 27 n.71 (Dkt. #237-5, App. 90), Defendants offer two other
8 For example, Plaintiff did not take into account construction tolerances when evaluating the accessibility of a facility in the safe harbor context and under the ADA. See, e.g. Access Now, Inc. v. Ambulatory Surgery Center Group, Ltd., No. 99-109, 2001 WL 617529, at *11 (S.D. Fla. May 2, 2001) (finding that "conventional building industry tolerances for field conditions," or "construction tolerances," may exist in varying amounts for different construction elements); Parr v. Kapahulu Investments, Inc., No. 98-00329, 2000 WL 687646, *20 (D. Haw. May 16, 2000). I t is in fact Plaintiff's burden to demonstrate that any variance exceeds the tolerance. See Cherry v. City College of San Francisco, No. 04-04981, 2006 WL 6602454 at *6 (N.D. Cal. Jan. 12, 2006). 9 The FHA is triggered by the discrete acts of design and construction of the covered unit or common area. Fair Housing Council, Inc., 250 F. Supp. at 718-19; Garcia v. Brockway, 526 F .3d 456, 461-62 (9th Cir. 2008). Therefore, Defendants may not be held liable for instances where the alleged violation was due to changes unrelated to actions of design and construction.
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experts to address accessibility and usability based on empirical research and on a p ractical methodology that demonstrates the concepts visually as applied to the properties.
Dr. Alison Vredenburgh is a principal with Vredenburgh & Associates, Inc. and the author of studies that evaluate the accessibility and usability of walkways and ramps and of apartment bathrooms, kitchens, turning space and control placement. She will discuss her empirical research, studies and experience and her determination that the properties are accessible, usable and adaptable to the needs of persons with disabilities, and how compliance with the safe harbors does not necessarily mean that an element is accessible. (See Vredenburgh Main Rpt. at 1-17 (Dkt. #237-32, App. 557-73)).
Paul Sheriff is the founder and President of Paul Sheriff Inc., which provides consulting services to large corporations, small companies, architects, attorneys, individual business owners, insurance companies, and the federal government on accessibility issues. Mr. Sheriff conducted "roll-thru" surveys by which he assesses the accessibility, usability and adaptability of properties as well as any barriers to accessibility.
A fifth expert -- Dr. Jay Kadane -- will explain that Plaintiff's experts used a flawed method for selecting units, rendering their opinions limited in scope.
B. Plaintiff Fails To Show A Patter n Or Pr actice Of Discr imination. Plaintiff has no e vidence to support its claim of "willful" discriminatory conduct or a "pattern and practice of discrimination." Unable to prove liability related to the conditions at 20 of the 52 properties, Plaintiff decided not to pursue them. (Dkt. #236 at 7, n.9.) This fact alone devastates Plaintiff's claim of pattern and practice. Plaintiff must establish that the Defendants engaged in a "policy of discrimination," United States v. W . Peachtree Tenth Corp., 437 F.2d 221, 227 (5th Cir. 1971), or that discrimination is "the company's standard operating procedure, the regular rather than the
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unusual practice." Int'l Bd. of Teamsters v. United States, 431 U.S. 324, 336 (1977) (emphasis added); Hallmark Homes, Inc., 2003 W L 23219807, at *5 ( D. Idaho Sept. 29, 2003) . The overwhelming evidence shows a careful, deliberate and concerted effort at compliance throughout design and construction by hiring qualified professionals, mandating that certain standards are met, and overseeing the process to ensure that such goals were achieved.10 Despite the passage of time and number of residents accessibility complaints have been miniscule. (See Defs.' Response to Plaintiff's Second Set of Interrogatories No. 9. (Dkt. #237-65, App. 1138), (Dkt. #237-66, App. 1182)). The evidence will show that the specific needs of the residents were met via accommodations and modifications just as the statute intended. III. EVEN IF LIABILITY COULD BE PROVEN, PLAINTIFF IS NOT ENTITLED
TO THE RELIEF IT SEEKS. Plaintiff faces significant problems securing relief in this matter. A. Plaintiff's Claims For Penalties And Damages Ar e Time Bar r ed And
Without Evidentiar y Suppor t. Under 28 U.S.C. § 2462, "any action suit or proceeding for the enforcement of any civil fine, penalty or forfeiture, pecuniary or otherwise, shall not be entertained unless commenced within five years from the date when the claim first accrued…" A cause of action seeking imposition of civil penalties under 42 U.S.C. § 3604(f)(3)(C) accrues from the date on which the design and/or construction is completed. Pacific Northwest Electric, Inc., 2003 WL 24573548, at *10; See also Garcia, 526 F.3d at 460-462 (9th Cir. 2008); Taigen, 303 F.Supp.2d at1133 (five year limit for civil penalties claim). In this case, the five year statute of limitations bars
10Furthermore, scattered divergences from non-mandatory standards hardly meet the high hurdle of demonstrating a pattern and practice. See Pacific Northwest Electric, Inc., 2003 WL 24573548 at *10 ("a showing of violation of the FHA is, in and of itself, insufficient, to succeed on a claim of "pattern and practice of discrimination").
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Plaintiff's claim for civil penalties on the 21 properties11 for which design and construction was completed before May 5, 2000. 12
There is also a statute of limitations for Plaintiff to seek compensatory damages. Th e
applicable statute of limitations provides, "Every action for money damages brought by Plaintiff
or an officer or agency thereof which is founded upon a tort shall be barred unless the complaint
is filed within three years after the right of action first accrues…" 28 U.S.C. § 2415. Plaintiff's
allegations here are "in the nature of a tort claim," bringing the suit within the three year
limitation period of 28 U.S.C. § 2415. Taigen, 303 F.Supp. 2d at 1144. In cases not involving
fraud or concealment, such as this, courts have found that the government could have reasonably
known facts when those facts were available to the general public. United States v. Kass, 740
F.2d 1493, 1497 (11th Cir.1984); United States v. Hess, 194 F.3d 1164 (10th Cir. 1999). In FHA
cases any alleged violation occurred when the properties were completed. See Garcia, 526 F.3d
at 460-462. Thus, the three year statute of limitations bars Plaintiff's claim for compensatory
damages on the 29 properties for which design and construction was completed before May 5, 2002.13
11Design and construction of the following properties was completed before May 5, 2000: Jefferson at Rock Creek, Jefferson at Fox Hollow, Jefferson at Coral Square, Jefferson Summit(Maitland), Morgan Falls, Jefferson River, Jefferson at Pin Oak, Jefferson at King Farm, Jefferson on the Plaza, Jefferson Farms, Jefferson at Preston, Villas at Beaver Creek, Jefferson at Melrose, Jefferson on the Parkway, Jefferson at Riverchase, Jefferson at Prestonwood Hills, Jefferson at Frankford, Jefferson Hill, Jefferson at Mission Gate, Jefferson Pines, and Jefferson at Fair Oaks; Jefferson Commons-Lawrence (KU); Jefferson Commons-TTU. (See Dkt. #237-17, App. 322-330). 12The parties entered into a tolling agreement on May 5, 2005. (Dkt. #237-66, App.1183-1185). Plaintiff did not file its Complaint against Defendants until March 4, 2009. (Dkt. #1.) 13 Design and construction of the following properties was completed before May 5, 2002: J efferson CommonsLawrence (KU), Clarke-Atlanta (Heritage Commons), Jefferson Commons-TTU, Jefferson Commons at Star Ranch (Tucson II), Jefferson at Aviara, Jefferson at Emerald Park; J efferson at Rock Creek, Jefferson at Fox Hollow, Jefferson at Coral Square, Jefferson Summit (Maitland), Morgan Falls, Jefferson River, Jefferson Park (Den Rock), Jefferson at Pin Oak, Jefferson at King Farm, Jefferson on the Plaza, Jefferson Farms, Jefferson at Preston, Villas at Beaver Creek, Jefferson at Melrose, Jefferson on the Parkway, Jefferson at Riverchase, Jefferson at Prestonwood Hills, Jefferson at Frankford, Jefferson Hill, Jefferson at Mission Gate, Jefferson Pines, Jefferson Lakes, Jefferson at Fair Oaks. (See Dkt. #237-17, App. 322-330).
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Further, Plaintiff intends to offer no evidence at trial regarding its claim for damages. Plaintiff has identified no fact or expert witnesses on the issue and lists no damages calculation. There has been no damage proximately caused by any act of the Defendants. Plaintiff will not be able to meet its proof obligations on i ts claim for monetary relief, and judgment should be directed in Defendants' favor pursuant to Rules 50 and 41(b) of the Federal Rules of Civil Procedure.
B. Plaintiff's Claims For Injunctive Relief Ar e Inequitable. Plaintiff's claim for injunctive relief is inappropriate, unfair, and unnecessary. The propriety of imposing equitable relief depends on t he particular facts of each case. Sanford v. Coleman Realty, 573 F.2d 173, 178-79 (4th Cir. 1978). "When seeking an equitable remedy, Plaintiff is no more immune to the general principles of equity than any other litigant." United States v. Second Nat'l Bank of N. Miami, 502 F.2d 535, 548 (5th Cir. 1974). The design decisions and construction were undertaken decades ago and Plaintiff investigated Defendants for 8 years before filing a Complaint. This length of delay can be considered unreasonable. See Equal Emp. Opportunity Comm'n v. Liberty Loan Corp., 584 F.2d 853, 857-58 (8th Cir. 1978). Moreover, Plaintiff seeks broad equitable relief despite having presented no evidence to show that such retrofits are needed to meet the needs of disabled residents. C. Retr ofits Ar e Not An Appr opr iate Remedy For Sold Pr oper ties. Plaintiff's request for retrofits cannot be granted without the joinder of the current owners of the properties as co-defendants. Defendants do not own any of the 32 properties at issue and advised Plaintiff of this problem in the Answer. (Dkt. #18 at 11-12.) Current property owners are required parties under Rule 19 to effectuate any remedial relief sought by Plaintiff, including "retrofitting of the noncompliant properties." National Fair
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Case 3:09-cv-00412-B Document 301 Filed 06/08/12 Page 18 of 21 PageID 17334 Housing Alliance v. A.G. Spanos Construction, Inc., 542 F. Supp. 2d 1054, 1066-67 (N.D. Cal. 2008); Roberts v. Royal Atlantic Corp., No. 03-2494, 2010 WL 749944, at *8 (E.D.N.Y. Mar. 3, 2010); Thompson v. Sand Cliffs Owners Ass'n, No. 96-270, 1998 WL 35177067, at *2-3 (N.D. Fla. Mar. 30, 1998). See also F.R.C.P. 19(a)(1) (parties are required if, "in [their] absence, the court cannot accord complete relief among existing parties."). There also can be no question that any decision mandating modifications to the properties will impair the proprietary interests of the owners. See F.R.C.P. 19(a)(1); Frotton v. Barkan, 219 F.R.D. 31, 32 (D. Mass. 2003); Roberts, 2010 WL 749944 at *8 .
CONCLUSION For the reasons stated above, Defendants will prevail on all issues at trial.
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SESSIONS & SCHAFFER, P.C. By: _/s/ William Lewis Sessions_____ William Lewis Sessions Texas Bar No. 18041500 Republic Center - Suite 4400 325 North St. Paul Street Dallas, Texas 75201 Telephone: (214) 217-8855 Facsimile: (214) 217-8856 Email: lsessions@sstexaslaw.com
June 8, 2012

Respectfully submitted,
HOLLAND & KNIGHT LLP
By:
_/s/ Christopher B. Hanback____ Christopher B. Hanback (Admitted Pro Hac Vice) D.C. Bar No. 232579
_/s/ Lynn E. Calkins___________ Lynn E. Calkins (Admitted Pro Hac Vice) D.C. Bar No. 445854
_/s/ Rafe Petersen_____________ Rafe Petersen (Admitted Pro Hac Vice) D.C. Bar No. 465542 2099 Pennsylvania Avenue, N.W., Suite 100 Washington, D.C. 20006 Telephone: (202) 955-3000 Facsimile: (202) 955-5564 Email: christopher.hanback@hklaw.com Email: lynn.calkins@hklaw.com Email: rafe.petersen@hklaw.com
_/s/ Paul McDermott____________ Paul McDermott (Admitted Pro Hac Vice) Florida Bar No. 855901 Holland & Knight, LLP 100 N. Tampa Street, Suite 4100 Tampa, FL 33602 Telephone: (813) 227-8500 Facsimile: (813) 229-0134 Email: paul.mcdermott@hklaw.com

14

Case 3:09-cv-00412-B Document 301 Filed 06/08/12 Page 20 of 21 PageID 17336

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

)

)

UNITED STATES OF AMERICA,

)

)

Plaintiff,

)

)

v.

)

)

JPI CONSTRUCTION L.P., et al.,

)

)

Defendants.

)

)

)

CIVIL ACTION NO. 3:09-cv-0412-B

CERTIFICATE OF SERVICE
I hereby certify that I electronically filed on this 8th day of June, 2012, the foregoing
with the clerk of court for the U.S. District Court, Northern District of Texas, using the electronic
case filing system of the court. The electronic case filing system sent a “Notice of Electronic
Filing” to the following attorneys of record who have consented in writing to accept this notice
as service of this document by electronic means:
Pamela O. Barron U.S. Department of Justice Civil Rights Division 950 Pennsylvania Ave., N.W. Washington, D.C. 20530 pamela.barron@usdoj.gov
Andrea K. Steinacker U.S. Department of Justice Civil Rights Division 950 Pennsylvania Ave., N.W. Washington, D.C. 20530 andrea.steinacker@usdoj.gov

Case 3:09-cv-00412-B Document 301 Filed 06/08/12 Page 21 of 21 PageID 17337

John R. Parker U.S. Attorney's Office 1100 Commerce Street, 3d Fl. Dallas, TX 75242 john.parker@usdoj.gov
Jennifer E. McAllister U.S. Department of Justice Civil Rights Division 950 Pennsylvania Ave., N.W. Washington, D.C. 20530 jennifer.mcallister@usdoj.gov
Neta Borshansky U.S. Department of Justice Civil Rights Division 950 Pennsylvania Ave., N.W. Washington, D.C. 20530 neta.borshansky@usdoj.gov
James T. Jacks U.S. Attorney's Office 1100 Commerce Street, 3d Fl. Dallas, TX 75242 jim.jacks@usdoj.gov
Susan L.S. Ernst U.S. Attorney's Office 1100 Commerce Street, 3d Fl. Dallas, TX 75242 susan.ernst@usdoj.gov
Lynette S. Wilson U.S. Attorney's Office 1100 Commerce Street Suite 300 Dallas, TX 75242 Email: lynette.wilson@usdoj.gov
#11265970_v2

/s/ Lynn E. Calkins Counsel for Defendants
2

 
 Case 3:09-cv-00412-B Document 320 Filed 06/25/12 Page 1 of 30 PageID 18129

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

)

UNITED STATES OF AMERICA,

)

)

Plaintiff,

)

)

v.

)

)

JPI CONSTRUCTION, L.P.; MULTIFAMILY

)

CONSTRUCTION, L.L.C.; JPI APARTMENT

)

DEVELOPMENT, L.P. D/B/A JPI CAMPUS

)

QUARTERS; LIFESTYLE APARTMENT

)

DEVELOPMENT SERVICE, L.L.C.; JEFFERSON

)

BEND, L.P. D/B/A JEFFERSON AT MISSION GATE )

APARTMENTS; JEFFERSON LAKE CREEK, L.P.

)

D/B/A JEFFERSON CENTER APARTMENTS; and

)

APARTMENT COMMUNITY REALTY, L.L.C.

)

)

Defendants.

)

)

Civil Action No. 3:09-cv-412

A. Background

CONSENT ORDER I. INTRODUCTION

1. This action is brought by the United States to enforce the provisions of Title VIII of the

Civil Rights Act of 1968, as amended by the Fair Housing Amendlnents Act of 1988, 42

U.S.C §§ 3601-3619 (the "Fair Housing Act" or "FHA"), and Title III of the Americans

with Disabilities Act, 42 U.S.C. §§ 12181-12189 ("ADA"). Specifically, the United States'

Complaint alleges that the Defendants have engaged in a pattern or practice of

discrimination against persons with disabilities and denied rights to a group of persons

because of disability by failing to design and construct some or all of the 210 multifalnily

dwellings (hereinafter the "Subject Properties"), as set forth on Appendix A, with the

features of accessible and adaptable design and construction required by subsections

1

Case 3:09-cv-00412-B Document 320 Filed 06/25/12 Page 2 of 30 PageID 18130
804(f)(1), 804(f)(2) and 804(f)(3)(C) of the Fair Housing Act, 42 U.S.C § 3604(f)(1), (2) & (3)(C), and in a manner required by the ADA, 42 U.S.C §12183(a)(1). The United States alleges that various Subject Properties do not comply with the Fair Housing Accessibility Guidelines, 56 Fed. Reg. 9472 (1991) ("Guidelines"), or another recognized, comparable, objective measure of accessibility, and do not comply with the ADA Standards. 2. The Defendants deny violating the Fair Housing Act and the Americans with Disabilities Act and assert that they fully support the provisions of those Acts by providing access for persons with disabilities in apartment communities that they designed and constructed in conformity with the requirements of the Acts. The Defendants assert that the Subject Properties were designed and constructed in accordance with the Guidelines, the ADA Standards, and/or other recognized, comparable, objective measures of accessibility. The Defendants further asseli that the Subject Properties comply fully with the FHA and ADA and are accessible, adaptable, and usable for persons with disabilities. 3. The Defendants are no longer involved in the design or construction of multifamily dwellings and do not intend to be involved in such business in the future. 4. The Parties have entered into this settlement agreement ("Consent Order") to resolve the issues in dispute and to avoid the uncertainties and costs of further litigation, and neither this Consent Order nor any of the provisions hereof shall be construed as an admission of liability. B. Defendants 5. Defendant JPI Construction, L.P. is a limited partnership organized under the laws of Delaware with its principal place of business at 600 E. Las Colinas Boulevard, Suite 1800, Irving, Texas 75039. Defendant JPI Construction, L.P. was a general contractor designing and constructing multifamily dwellings, including dwellings that were built for first occupancy after March 13, 1991. Defendant Multifamily
2

Case 3:09-cv-00412-B Document 320 Filed 06/25/12 Page 3 of 30 PageID 18131
Construction, L.L.C. is a limited liability company organized under the laws of Delaware with its principal place of business at 600 E. Las Colinas Boulevard, Suite 1800, Irving, Texas 75039 and is a general partner in JPI Construction, L.P. 6. Defendant JPI Apartment Development, L.P. is a limited partnership and was a developer of Inultifamily dwellings, including dwellings that were built for first occupancy after March 13, 1991. Defendant Lifestyle Apartment Development Service, L.L.C. is a limited liability cOlnpany and is a general partner in Defendant JPI Apartment Developlnent, L.P. Both entities are organized under the laws of Delaware with their principal place of business at 600 E. Las Colinas Boulevard, Suite 1800, Irving, Texas 75039. 7. Defendant Jefferson Bend, L.P. is a limited partnership organized under the laws of Delaware, with its principal place of business at 600 E. Las Colinas Boulevard, Suite 1800, Irving, Texas 75039. Defendant Jefferson Bend, L.P. was the owner of Jefferson at Mission Gate (Bend) during its design and construction. 8. Defendant Jefferson Lake Creek, L.P. is a limited partnership organized under the laws of Delaware, with its principal place of business at 600 E. Las Colinas Boulevard, Suite 1800, Irving, Texas 75039. Defendant Jefferson Lake Creek, L.P. was the owner of Jefferson Center during its design and construction. 9. Defendant Apartment Community Realty, L.L.C. is a limited liability company organized under the laws of Delaware, with its principal place of business at 600 E. Las Colinas Boulevard, Suite 1800, Irving, Texas 75039. Defendant Apartment Community Realty, L.L.C. is a general partner in Defendant Jefferson Bend, L.P. and in Defendant Jefferson Lake Creek, L.P.
:3

Case 3:09-cv-00412-B Document 320 Filed 06/25/12 Page 4 of 30 PageID 18132
c. Relevant Requirements of the Fair Housing Act
10. The FHA provides that, for residential buildings with an elevator consisting of four or luore dwelling units, all units that are designed and constructed for first occupancy after March 13, 1991, are "covered multifamily dwellings" and must include certain basic features of accessible and adaptive design to make such units accessible to or adaptable for use by a person who has or develops a disability. 42 U.S.C. §§ 3604(f)(3)(C) and (f)(7)(A).
11. The FHA provides that, for non-elevator residential buildings with four or more dwelling units, unless otherwise excluded, all ground-floor units that are designed and constructed for first occupancy after March 13, 1991, are "covered multifamily dwellings" and must include certain basic features of accessible and adaptive design to make such units accessible to or adaptable for use by a person who has or develops a disability. 42 U.S.C. §§ 3604(f)(3)(C) and (f)(7)(B).
12. The accessible and adaptive design provisions of the FHA require that, for covered multifamily dwellings, (i) the public use and COlumon use portions of such dwellings are readily accessible to and usable by persons with a disability; (ii) all the doors designed to allow passage into and within all premises within such dwellings are sufficiently wide to allow passage by persons with a disability using wheelchairs; (iii) all preluises within such dwellings contain the following features of adaptive design: (I) an accessible route into and through the dwelling; (II) light switches, electrical outlets, thermostats, and other environmental controls in accessible locations; (III) reinforcements in bathroom walls to allow later installation of grab bars; and (IV) usable kitchens and bathrooms such that an individual using a wheelchair can maneuver about the space. 42 U.S.C. § 4

Case 3:09-cv-00412-B Document 320 Filed 06/25/12 Page 5 of 30 PageID 18133
3604(f)(3)(C). These features are referred to herein as the "Accessible Design Requirements." 13. The Subject Properties, excluding certain buildings at Jefferson at Preston, were designed and constructed for first occupancy after March 13, 1991, and therefore all of the units in buildings with elevators and the ground-floor units in non-elevator buildings at the Subject Properties, unless otherwise excluded, are "covered multifamily dwellings" within the meaning of the FHA, 42 U.S.C. § 3604(f)(7)(A) and (B). As such, the covered units and the public and common use areas at the Subject Properties lTIUSt COlTIply with the Accessible Design Requirements of 42 U.S.C. § 3604(f)(3)(C). D. Relevant Requirements of the Americans with Disabilities Act 14. The ADA and the ADA Standards for Accessible Design, ADA Accessibility Guidelines for Buildings and Facilities, 28 C.F.R. pt. 36, app. A ("ADA Standards"), that have been issued by the U.S. Department of Justice to implement the design and construction requirelTIents of Title III of the ADA require that all "public aCCOlTIlTIodations" designed and constructed for first occupancy after January 26, 1993, and the goods, services, facilities, privileges, advantages, or accommodations of those public accommodations, be readily accessible to and usable by persons with disabilities in accordance with certain accessibility standards promulgated under that Act. 42 U.S.C. §§ 12182(a) and 12183(a)(1). A rental or sales office for an apartment, condominium, or patio home complex is a "public accommodation" under the ADA. 42 U.S.C. § 12181(7)(E). 15. The rental and sales offices for the Subject Properties, excluding Jefferson at Preston, were designed and constructed for first occupancy after January 26, 1993,
5

Case 3:09-cv-00412-B Document 320 Filed 06/25/12 Page 6 of 30 PageID 18134
and therefore the rental and sales offices and the facilities and privileges provided at those offices such as public parking are required to be designed and constructed in accordance with the standards promulgated under the ADA.
II. STATEMENT OF AGREEMENT 16. The parties agree that this Court has jurisdiction over the subject matter of this case
pursuant to 28 U.S.C. §§ 1331 and 1345 and 42 U.S.C. §§ 3614(a) and 12188(b)(1)(B). The parties further agree that this controversy should be resolved without further proceedings and without an evidentiary hearing or a trial. This Consent Order constitutes the entire agreement between the parties on the matters raised herein, and no other statement, promise, or agreement either written or oral, made by the parties or agents of the parties, that is not contained in this Consent Order will be enforceable under its provisions. 17. The United States hereby releases all claims and covenants and agrees that it will forever refrain frOln instituting, maintaining, prosecuting, or continuing to maintain or prosecute any suit or action or proceeding, and will not facilitate another person or entity in the filing of a substantially similar suit or action or proceeding as this case, under the FHA and the ADA pertaining to the design and construction of the Subject Properties against the Defendants, Defendants' parent entities, subsidiaries and affiliates, including but not limited to JPI Partners, L.L.C. f/k/a JPI Partners, Inc. a/k/a JPI, JPI Investlnent Company, L.P., JPI Multifamily InvestInents, L.P., JPI Service Companies Holding, L.P., and JPI Lifestyle Apartment Communities, L.P., as well as the officers, directors, members, partners, managers, trustees, employees and agents of such entities or individuals, except that nothing in this paragraph shall prevent or limit in any way the United States from fulfilling its obligations under 42 U.S.C. § 3612(0). This paragraph shall survive the expiration of this
6

Case 3:09-cv-00412-B Document 320 Filed 06/25/12 Page 7 of 30 PageID 18135
Consent Order. 18. As indicated by the signatures appearing below, the parties agree to the entry of this
Consent Order. It is hereby ORDERED, ADJUDGED, and DECREED:
III. GENERAL INJUNCTION 19. The Defendants are enjoined from discriminating on the basis of disability as
prohibited by the Fair Housing Act, 42 U.S.C. §3604(f)(1)-(3) and the Americans with Disabilities Act, 42 U.S.C. §§12182(a) and 12183(a)(1). 20. The Defendants are enjoined from interfering with or preventing retrofitting at the Subject Properties or the implementation of this Consent Order. The parties agree that the selling of any of the Subject Properties will not constitute a breach of this paragraph. 21. Within thirty (30) days of the date of entry of this Consent Order, the Defendants shall post and prominently display in the sales or rental offices of all Subject Properties owned or operated by them a sign no smaller than 10 by 14 inches indicating that all dwellings are available for rental or sale on a nondiscriminatory basis. A poster that comports with 24 C.F.R. Part 110 will satisfy this requirement. 22. For the duration of this Consent Order, the Defendants in all future advertising in newspapers, electronic media, pmnphlets, brochures and other promotional literature regarding the Subject Properties owned or operated by theIn, if any, or any new covered multifamily dwellings that any of the Defendants may develop or construct, the Defendants shall place, in a conspicuous location, a statement that the dwelling units include features for persons with disabilities required by the Fair Housing Act. 23. For the duration of this Consent Order, the Defendants shall advise the United
7

Case 3:09-cv-00412-B Document 320 Filed 06/25/12 Page 8 of 30 PageID 18136
States in writing within fifteen (15) days of Defendants' receipt of any written administrative or legal fair housing complaint against any of the Subject Properties, any Defendant, or any employees or agents of the Defendants working at or for any such Subject Property, regarding discrimination on the basis of disability in housing. Upon reasonable notice, the Defendants shall also provide the United States all information it may request concerning any such complaint. The Defendants shall also advise counsel for the United States, in writing, within fifteen (15) days of the resolution of any complaint.
IV. SETTLEMENT PAYMENTS 24. Within thirty (30) days after the entry of this Consent Order, the Defendants shall
cause to be paid to the United States Treasury a total of TWO HUNDRED FIFTY THOUSAND DOLLARS ($250,000.00) as a civil penalty pursuant to 42 U.S.C. §§ 3614(d)(1)(C) and 12188(b)(C)(I). The payment shall be in the form of an electronic funds transfer pursuant to written instructions to be provided by the United States. 25. Within thirty (30) days after the entry of this Consent Order, the Defendants shall cause to be paid a total ofTEN MILLION TWO HUNDRED FIFTY THOUSAND DOLLARS ($10,250,000.00) to establish an accessibility fund. The payment shall be in the form of an electronic funds transfer pursuant to written instructions to be provided by the United States. 26. The United States shall use the accessibility fund for the purpose of increasing the stock of accessible housing, including providing funds for retrofits at the Subject Properties, providing funds to make properties accessible in the communities where the Subject Properties are located, and other uses consistent with this purpose and
~

Case 3:09-cv-00412-B Document 320 Filed 06/25/12 Page 9 of 30 PageID 18137
this Consent Order. 27. The United States shall designate one or more fund administrators to administer the
accessibility fund in accordance with its purpose set fOlih in paragraph 26. The funds shall be administered pursuant to a contract between the fund administrator(s) and the United States. The fund administrator(s) lnay be reimbursed out of the accessibility fund for reasonable administration expenses associated with administering the fund and managing the retrofits. 28. The provisions relating to the accessibility fund will continue until the funds have been exhausted. 29. In making any retrofits to the Subject Properties, the United States, the fund administrator(s), and their agents will take appropriate steps so as not to interfere unreasonably with the use, operation, or occupancy of the Subject Properties. 30. Delivery of the payments referenced in paragraphs 24 and 25 above shall constitute the only monetary payments required of the Defendants as full consideration for the settlelnent of this action and the terms of this Consent Order.
v. FUTURE DESIGN AND CONSTRUCTION
31. If the Defendants reenter the multifamily development or construction business during the term of this Consent Order, (a) the Defendants shall design and construct all future covered multifamily dwellings to fully comply with the requirements of the FHA, a HUD-recognized safe harbor or another recognized, comparable, objective measure of accessibility, the ADA, and the ADA Standards; and (b) for the duration of this Consent Order, the Defendants shall provide to the United States, the following information and statements regarding any covered multifamily
~

Case 3:09-cv-00412-B Document 320 Filed 06/25/12 Page 10 of 30 PageID 18138

dwellings built for first occupancy after the date of execution of this Consent Order,

that are developed, built, designed, constructed, or engineered in whole or in part, by

any of the Defendants or by any entities in which they have a position ofcontrol or

have a ten-percent (10%) or larger ownership share:

a. the name and address of the covered multifamily dwellings;

b. a description of the covered multifamily dwelling project and the individual units;

c. the name, address, and telephone nUlllber of the civil engineer(s) involved with the covered multifamily dwelling project;

d. a statement from all civil engineer(s) involved with the covered multifamily dwelling project acknowledging and describing his/her lmowledge of and training in the requirements of the Fair Housing Act, the requirements of the ADA, and in the field of accessible site design and certifying that he/she has reviewed the engineering documents for the project and that the design specifications therein fully comply with the requirements of the FHA, a HUD-recognized safe harbor or another recognized, comparable, objective measure of accessibility, the ADA, and the ADA Standards;

e. the name, address and telephone number of the architect(s) involved with the covered multifamily dwelling project;

f.

a statement from all architect(s) involved with the covered

tllultifmllily dwelling project, aclmowledging and describing his/her

lmowledge of and training in the requirements of the FHA, the requirements

of the ADA, and in the field of accessible site and unit design and certifying

that he/she has reviewed the architectural plans for the project and that the

design specifications therein fully comply with the requirements of the FHA,

a HUD-recognized safe harbor or another recognized, comparable, objective

measure of accessibility, the ADA, and the ADA Standards;

g. if the engineering documents or architectural plans are revised, and the revisions could have any impact on the accessibility of the dwellings or project, each of the Defendants shall obtain, maintain, and provide to the United States upon request, a statement from the site engineer(s) or architect(s), who are employed or retained by any Defendant or and are involved with the multifamily dwelling project, as applicable, that all specifications in the revised engineering documents or architectural plans, as pertinent, comply with the requirements of the FHA, a HUD-recognized safe harbor or another recognized, comparable, objective measure of accessibility,
10

Case 3:09-cv-00412-B Document 320 Filed 06/25/12 Page 11 of 30 PageID 18139
the ADA, and the ADA Standards. 32. If the Defendants reenter the multifamily development or construction business
during the term of this Consent Order, (a) within thirty (30) days thereafter, the Defendants shall provide a copy of this Consent Order to all their agents and employees involved in the design or construction of any covered multifamily dwelling, and secure the signed statement from each agent or employee acknowledging that he or she has received and read the Consent Order, and has had an opportunity to have questions about the Consent Order answered. This statement shall be substantially similar to the form of Appendix B; and (b) within thirty (30) days after the date he or she commences an agency or employment relationship with a Defendant, each new agent or employee involved in the design and construction of any covered tnultifamily dwelling property shall be given a copy of this Consent Order and be required to sign the statement acknowledging that he or she has received and read the Consent Order, and has had an opportunity to have questions about the Consent Order answered. This statement shall be substantially similar to the fonn of Appendix B. 33. If the Defendants reenter the multifamily development or construction business during the term of this Consent Order, the Defendants shall also ensure that they, their employees, and their agents who have primary management authority over the design and/or construction of covered multifamily dwellings have a copy of, are familiar with, and personally review, the Fair Housing Accessibility Guidelines, 56 Fed. Reg. 9472 (1991), and the United States Department of Housing and Urban Development, Fair Housing Act Design Manual, A Manual to Assist Builders in
11

Case 3:09-cv-00412-B Document 320 Filed 06/25/12 Page 12 of 30 PageID 18140
Meeting the Accessibility Requirements of the Fair Housing Act (August 1996, Rev. April 1998). 34. If the Defendants reenter the multifamily development or construction business during the term of this Consent Order, all of their employees and agents whose duties, in whole or in part, involve the management, sale and/or rental of covered Inultifamily dwellings, shall be informed of those portions of the Fair Housing Act that relate to accessibility requirements, reasonable accommodations, and reasonable tnodifications. 35. If the Defendants reenter the multifamily development or construction business during the term of this Consent Order, within ninety (90) days thereafter, the Defendants and all their employees and agents whose duties, in whole or in part, will involve primary Inanagement authority over the development or will involve the design and/or construction of covered multifamily dwellings shall undergo training on the design and construction requirements of the FHA and the ADA, unless they have already had similar training within the last four years that is retroactively approved by the United States. The training shall be conducted by a qualified individual approved by the Department of Justice, and any expenses associated with this training shall be borne by the Defendants. The Defendants shall provide to the United States, within thirty (30) days after the training, the name(s), addressees) and telephone number(s) of the trainer(s); copies of the training outlines and any materials distributed by the trainers; and certifications executed by all the Defendants, and their covered employees and agents, confirming their attendance, in a form substantially equivalent to Appendix C. 36. If the Defendants reenter the multifamily developlnent or construction business
12

Case 3:09-cv-00412-B Document 320 Filed 06/25/12 Page 13 of 30 PageID 18141
during the term of this Consent Order, within one hundred eighty (180) days thereafter, the Defendants shall submit to the United States an initial report containing the reporting required by paragraph 31 (b) on any future design and construction by the Defendants and containing the signed statelnents of the Defendants, and their employees and agents, who have completed the training program specified in paragraph 35 of this Consent Order. Thereafter, during the term of this Consent Order, on each anniversary of the entry of this Consent Order, the Defendants shall submit to the United States a compliance report detailing the Defendants' compliance with this Consent Order including details on the reporting required by paragraph 31 (b) on any future design and construction and the signed statements of their new elnployees and agents that, in accordance with paragraph 32(b) of this Consent Order, they have received and read this Consent Order, and had an opportunity to have questions about this Consent Order answered, except that the last compliance report shall be due sixty (60) days prior to the final anniversary prior to the expiration of this Consent Order. 37. If the Defendants reenter the multifamily development or construction business during the term of this Consent Order and if the Defendants engage in any future conduct occurring after the entry but before the tennination of this Consent Order that leads to a determination of a violation of the design and construction requirements of the Fair Housing Act, such conduct shall constitute a "subsequent violation" pursuant to 42 U.S.C. § 3614(d)(1)(C)(ii). By agreeing to this paragraph, the parties also expressly agree that this provision shall not be construed as an admission of liability. 38. If the Defendants reenter the multifamily development or construction business
13

Case 3:09-cv-00412-B Document 320 Filed 06/25/12 Page 14 of 30 PageID 18142
during the term of this Consent Order and if the Defendants engage in any future conduct occurring after the entry but before the termination of this Consent Order that leads to a determination of a violation of the design and construction requirements of the ADA, such violation(s) shall constitute a "subsequent violation" pursuant to 42 U.S.C. § 12188(b)(2)(C)(ii). By agreeing to this paragraph, the parties also expressly agree that this provision shall not be construed as an admission of liability. 39. If the Defendants reenter the multifamily development or construction business during the term of this Consent Order, the Defendants shall preserve for the duration of this Consent Order all design and construction records relating to new properties constructed after Defendants reenter the tTIultifamily developtTIent or construction business. Upon reasonable notice to the Defendants' representatives, the United States shall be permitted to inspect and copy any such records or inspect at a reasonable time any new covered tTIultifamily dwellings constructed by the Defendants during the term of this Consent Order, provided, however, that the United States shall endeavor to minimize any inconvenience from such inspections to the Defendants and the residents. VI. DURATION OF CONSENT ORDER AND TERMINATION OF LEGAL
ACTION 40. This Consent Order shall retTIain in effect for three (3) years after the date of its
entry. 41. The Court shall retain jurisdiction for the duration of this Consent Order to enforce
the terms of this Consent Order. Following entry of this Consent Order, the Court shall dismiss this case with prejudice.
14

Case 3:09-cv-00412-B Document 320 Filed 06/25/12 Page 15 of 30 PageID 18143
VII. ENFORCEMENT 42. The breach of any term, covenant, or condition herein contained shall not be deemed
to be a breach of any other term, covenant, or condition contained herein. If there is a potential breach of any provision of this Consent Order, the parties agree that the breach does not trigger the re-opening of the underlying case regarding the design and construction of the Subject Properties. Rather, the parties agree that any potential breach will be reviewed as a stand-alone violation of that provision of this Consent Order with proportional remedies to be assessed if any penalties are warranted.
VIII. TIME FOR PERFORMANCE 43. Any time limits for performance iInposed by this Consent Order may be extended by
the Inutual written agreement of the United States and the relevant Defendants. IX. COSTS OF LITIGATION
44. Each party to this litigation will bear its own costs and attorney's fees associated with this litigation. X. REPORTING REQUIREMENTS
45. If triggered, the reports required by paragraphs 31(b) and 36 of this Consent Order shall be sent to Chief, Housing and Civil Enforcement Section, Civil Rights Division, United States Department of Justice, 950 Pennsylvania Avenue, N.W., Washington, D.C. 20530, Attn: United States v. JPI Constr., L.P., et al., DJ#17573-356, or as otherwise directed by the United States. If a submission by facsimile is required, the submission shall be sent to (202) 514-1116, or as directed by the United States.
IS

Case 3:09-cv-00412-B Document 320 Filed 06/25/12 Page 16 of 30 PageID 18144 Case 3:09-cv-00412-8-8D Document 316-1 Filed 06/22/12 Page 16 of 30 PagelD 18112
XI. RECORD RETENTION 46. The parties agree that, as of the date of the entry of this Consent Order, litigation is
"not reasonably foreseeable" concerning the matters discussed above. The parties thereby agree that:
a. to the extent that either party previously implemented a litigation hold to preserve documents, electronically stored information, or things related to the matters described above, the party is no longer required to maintain such litigation hold; and
b. the parties are expressly permitted to destroy all documents, electronically stored information, or things related to the design or construction of the Subject Properties unless otherwise required to be maintained for any purpose unrelated to this case.
SO ORDERED _--Wd.==--__ day _---:>'~:..!.....::..----_ , 2012.
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Case 3:09-cv-00412-B Document 320 Filed 06/25/12 Page 17 of 30 PageID 18145

The undersigned apply for and consent to the entry of this Order:

For Plaintiff United States

By: SARAH R.SALDANA United States Attorney No~hern District of Texas
/s/ Lynette S. Wilson LYNETTE S. WILSON Assistant United States Attorney United States Attorney's Office Northern District of Texas 1100 Commerce Street, Suite 300 Dallas, Texas 75242-1699

THOMAS E. PEREZ Assistant Attorney General Civil Rights Division
/s/ Andrea K. Steinacker STEVEN H. ROSENBAUM DC Bar #417585 Chief MICHAEL S. MAURER DC Bar # 420908 Deputy Chief JENNIFER E. MCALLISTER, VA Bar # 71180 PAMELA O. BARRON, VA Bar # 20828 NETA BORSHANSKY, CA Bar # 266295 ANDREA K. STEINACKER, WA Bar # 35688 Trial Attorneys United States Department of Justice Civil Rights Division Housing and Civil Enforcement Section 950 Pennsylvania Avenue, N. W. - G St. Washington, D.C. 20530 202-353-0261 202-514-1116 (fax)

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Case 3:09-cv-00412-B Document 320 Filed 06/25/12 Page 18 of 30 PageID 18146

For the Defendants
SESSIONS & SCHAFFER, P.C.
By:
William Lewis Sessions Texas BarNo. 18041500
Republic Center - Suite 4400 325 North St. Paul Street Dallas, Texas 75201 Telephone: (214) 217-8855 Facsimile: (214) 723-5346 Email: lsessions@sstexaslaw.com

HOLLAND & KNIGHT LLP
By:
/s/ Christopher B. Hanback Christopher B. Hanback (Admitted Pro Hac Vice) D.C. BarNo. 232579 Lynn E. Calkins (Admitted Pro Hac Vice) D.C. Bar No. 445854 Rafe Petersen (Admitted Pro Hac Vice) D.C. Bar No. 465542 2099 Pennsylvania Avenue, N.W., Suite 100 Washington, D.C. 20006 Telephone: (202) 955-3000 Facsimile: (202) 955-5564 Elllail: christopher.hanback@hklaw.com Email: lynn.calkins@hklaw.com Email: rafe.petersen@hklaw.com
Paul McDermott (Admitted Pro Hac Vice) Florida Bar No. 855901 100 N. Tampa Street, Suite 4100 Tampa, FL 33602 Telephone: (813) 227-8500 Facsimile: (813) 229-0134 Email: paul.lllcdermott@hklaw.com

18

Case 3:09-cv-00412-B Document 320 Filed 06/25/12 Page 19 of 30 PageID 18147

APPENDIX A

No.

Property

Address

1 Jefferson ComlTIons-ASU (Tempe)

1655 University

Tempe, AZ 8528

2 Jefferson at Scottsdale

17212 North Scottsdale Road

Scottsdale, AZ 85255

3 Jefferson on Central

4140 North Central Avenue

Phoenix, AZ 85012

4 Jefferson COlnmon at UA (Tuscon I)

850 East Wetmore

Tucson, AZ 85719

5 Jefferson at Steele Park

411 East Indian School Road

Phoenix, AZ 85012

6 Jefferson Estates on Maryland

1802 West Maryland Avenue

Phoenix, AZ 85015

7 Jefferson Commons at Star Ranch (Tuscon II) 41 South Shannon Road

Tucson, AZ 85745

8 Carmel Mountain Ranch

11832 Stoney Peak Drive

San Diego, CA 92128

9 Jefferson at Mission Valley I & II

2507 Northside Drive

San Diego, CA 92108

10 Jefferson at Emerald Park (Dublin)

5050 Hacienda Drive

Dublin, CA 94568

11 Jefferson at Fremont

3400 & 3350 Stevenson Blvd.

Freemont, CA 94538

12 Jefferson at Aviara (Mirabella at Aviara)

6610 Ambrosia Lane

Carlsbad, CA 92009

13 Jefferson at Town Center (CA)

24905 Magic Mountain Parkway

Santa Clarita, CA 91355

14 Jefferson at Bay Meadows

1101 Park Place

San Mateo, CA 94403

15 Jefferson at Carmel Pointe

12567 EI Cmnino Real

San Diego, CA 92130

16 Jefferson at Empire Lakes

9200 Milliken Avenue

Rancho Cucamonga, CA 91730

17 Jefferson at South River (Town Center II)

24807 Magic Mountain Parkway

Santa Clarita, CA 91355

18 Jefferson Commons at Sacramento

6730 4th Avenue

Sacramento, CA 95817

19 Jefferson at Fourth Street

11275 5th Street

Rancho Cucamonga, CA 91730

20 Jefferson at Fresno

365 East Barstow

Fresno, CA 93710

19

Case 3:09-cv-00412-B Document 320 Filed 06/25/12 Page 20 of 30 PageID 18148

No.

Property

Address

21 Jefferson at Sitni Valley 22 Jefferson at Marina del Rey 23 Jefferson at Hollywood 24 Jefferson at Raccoon Creek 25 Jefferson at Greenwood Plaza 26 Jefferson at Rock Creek 27 Jefferson Commons at CSU (Fort Collins) 28 Jefferson at Cheyenne Mountain 29 Jefferson at Fox Hollow 30 Jefferson Estates at Lowry 31 Jefferson at Town Center 32 Jefferson at Meridian I & II 33 Jefferson at Meadow Hills 34 Jefferson Park at Lowry 35 Jefferson at Aspen Ridge 36 Jefferson Park at Lowry II 37 Jefferson at City Gate 38 Charter Oaks Apartments & Suites (UConn) 39 Jefferson at Penn Quarter 40 Jefferson at Logan Circle 41 Jefferson at Jenkins Row 42 Jefferson at 70 Eye Street

1579 East Jefferson Way Simi Valley, CA 93065 3221 Carter Avenue Marina del Rey, CA 90292 1724 N Highland Avenue Los Angeles, CA 90028 6805 W. Bowles Avenue Littleton, CO 80123 7610 E. Caley Avenue Englewood, CO 80111 1880 Enterprise Street Superior, CO 80027 125 West Mountain Fort Collins, CO 80524 1735 Presidential Heights Colorado Springs, CO 80906 3248 South Newcombe Street Lakewood, CO 80227 8155 Fairmount Drive Denver, CO 80220 1001 East 1st Avenue Broomfield, CO 80020 9875 Jefferson Parkway Englewood, CO 80112 4260 South Cimarron Way Aurora, CO 80014 8501 East Alameda Denver, CO 80177 18851 East Baltic Place Aurora, CO 80013 8155 Alameda Denver, CO 80230 2890 Brighton Blvd. Denver, CO 80216 200 North Hillside Drive Storrs, CT 06269 443 7th St., N.W. Washington, DC 20004 1301 M Street, N.W. Washington, DC 20005 1391 Pennsylvania Ave., S.E. Washington, DC 20003 70 Eye Street S.E. Washington, DC 20001

20

Case 3:09-cv-00412-B Document 320 Filed 06/25/12 Page 21 of 30 PageID 18149

No.

Property

Address

43 Jefferson at 100 Eye Street 44 Jefferson at New Jersey Avenue 45 PrOlTIenade at Aventura 46 Jefferson at Coral Square 47 Jefferson at Deer Creek 48 Jefferson at Wyndham Lakes 49 Jefferson Commons - FSU (Tallahassee) 50 Jefferson Summit (Maitland) 51 Jefferson at Doral 52 Jefferson COlTIlTIOnS - UCF (Orlando) 53 Jefferson at Flagler 54 Jefferson at Pembroke Pines (Pines I) 55 Jefferson Common - USF (TmTIpa) 56 Jefferson at Imperial River 57 Jefferson at Camino Real 58 Jefferson at Young Circle 59 Jefferson at Lakeside (Pines II) 60 Jefferson Lofts (Orlando- UCF II) 61 Jefferson Place 62 Orpington 63 Gainesville (Univ. of Florida) 64 Morgan Falls

100 Eye Street S.E. Washington, DC 20001 909 New Jersey Avenue, S.E. Washington, DC 20003 19680 East Country Club Drive Aventura, FL 33180 9111 Ramblewood Drive Coral Springs, FL 33071 500 Jefferson Drive Deerfield, FL 33442 11500 NW 56th Drive Coral Springs, FL 33076 1325 W. Tharpe Street Tallahasee, FL 32303 9000 Summit Centre Way Orlando, FL 32810 5611 NW 112th Avenue Miami, FL 33178 11841 Jefferson Commons Circle Orlando, FL 32826 1801 North Flagler Drive West Palm Beach, FL 33407 11100 SW 6th St Pembroke Pines, FL 33025 3424 Jefferson Commons Drive Tampa, FL 33613 8675 River Homes Lane Bonita Springs, FL 34135 33 East Camino Real Boca Raton, FL 33432 1900 Van Buren Street Hollywood, FL 33020 699 SW 109th Circle Pembroke Pines, FL 33025 1805 Loft Circle Way Orlando, FL 32836 533 NE 3rd Avenue Ft. Lauderdale, FL 33301 12700 Orpington Street Orlando, FL 32826 533 SW 2nd Avenue Gainesville, FL 32601 7785 Roswell Road Dunwoody, GA 30350

21

Case 3:09-cv-00412-B Document 320 Filed 06/25/12 Page 22 of 30 PageID 18150

No.

Property

Address

65 Windward 66 Vinnings 67 Jefferson River 68 Jefferson Ridge 69 Jefferson Square 70 Jefferson on the Green 71 Jefferson at Lenox Park 72 Jefferson at Peachtree 73 Clarke-Atlanta (Heritage Commons) 74 Clarke-Atlanta (Phase II) 75 Jefferson Commons-Lafayette (Purdue) 76 Jefferson Commons - Lawrence (KU) 77 Jefferson Commons-Brightside Crossing
(LSU) 78 University of Louisiana at Monroe (ULM I) 79 University of Louisiana at Monroe (ULM II) 80 Jefferson Park (Den Rock) 81 Jefferson at Wheeler Hill 82 Jefferson at Salem Station 83 Jefferson at Washington Crossing 84 Jefferson at Bellingham 85 Jefferson Station (Dedham) 86 Adlniral's Hill

3080 Market Place Alpharetta, GA 30202 2158 Cumberland Parkway NW Atlanta, GA 30339 6015 State Bridge Road Duluth, GA 30155 3355 McDaniel Road Duluth, GA 30096 455 DeKalb Industrial Way Decatur, GA 30031 18000 Master's Way Alpharetta, GA 30005 1050 Lenox Park Blvd. Atlanta, GA 30319 2432 Johnson Ferry Road Chamblee, GA 30341 15 James P. Brawley Drive, SW Atlanta, GA 30314 128 Mildred Street SW Atlanta, GA 30314 2243 US Hwy 52 West West Lafayette, IN 47096 2511 West 31st Street Lawrence, KS 66047 1443 Brightside Drive Baton Rouge, LA 70820 4106 Bon Aire Drive Monroe, LA 71208 4107 Bon Aire Drive Monroe, LA 71208 100 Hawthorne Way South Lawrence, MA 01843 21 Austen Way Marlborough, MA 01752 190 Bridge Street Salem, MA 01970 55 Cedar Street Woburn, MA 01801 151 North Main Street Bellingham, MA 02019 501 Rustcraft Road Dedham, MA 02026 1000 Justin Drive Chelsea, MA 02150

22

Case 3:09-cv-00412-B Document 320 Filed 06/25/12 Page 23 of 30 PageID 18151

No.

Property

Address

87 Jefferson at Pin Oak 88 Jefferson at College Park (MD) 89 Jefferson Villa 90 Jefferson at King Farm 91 Jefferson at Fallsgrove 92 Jefferson at Thomas Farm (Fallsgrove II) 93 Congressional Village 94 Inigo's Crossing 95 Jefferson Commons - WMU (Kalamazoo) 96 Jefferson at Plymouth 97 Jefferson Commons - University of
Minnesota 98 Berry Street (Univ. of Minnesota II) 99 Jefferson on the Plaza 100 Jefferson Commons - Columbia 101 Jefferson Creekside 102 Wingate 103 Jefferson at Cary Towne 104 North Carolina State (Wolfpack) 105 Jefferson on Merrimack 106 Jefferson at Aberdeen Station 107 Jefferson at Merritt Park 108 White Plains

3635 Elder Oaks Blvd. Bowie, MD 20716 9091 Baltimore Avenue College Park, MD 20740 11750 A Old Georgetown Road Rockville, MD 20852 465 Elmcroft Blvd Rockville, MD 20850 102 Fallsgrove Blvd Rockville, MD 20850 102 Fallsgrove Blvd. Rockville, MD 20850 1701 Rockville Pike Rockville, MD 20852 5405 Tuckerman Lane Rockville, MD 20852 5800 Jefferson Commons Drive Kalamazoo, MI 49009 6110 Quinwood Lane North Plymouth, MN 55442 609 Huron Blvd. SE Minneapolis, MN 55414 950 Jefferson Commons Circle St. Paul, MN 55114 4800 Oak Street Kansas City, MO 64112 2500 Old Hwy 63 South Columbia, MO 65201 4101 Double Creek Crossing Drive Charlotte NC 28269 107 East Wilson Wingate, NC 28174 442 Jefferson Towne Drive Raleigh, NC 27606 2717 Western Blvd. Raleigh, NC 27606 38A Hawthorne Drive Bedford, NH 03110 1000 Central Avenue Aberdeen, NJ 07747 80 Jefferson Blvd. Fishkill, NY 12524 300 Mamaroneck Avenue White Plains, NY 10601

23

Case 3:09-cv-00412-B Document 320 Filed 06/25/12 Page 24 of 30 PageID 18152

No.

Property

Address

109 Jefferson at Sugar Run (New Albany) 110 Jefferson Commons - OSU (Columbus) 111 Jefferson Commons - OSU (Stillwater) 112 Jefferson COlnmons - OSU II (Stillwater) 113 Jefferson Commons - Penn State I 114 Jefferson at Westtown 115 Jefferson COlnmons - The Pointe (Penn
State II) 116 University of California - Pennsylvania 117 Jefferson Woods (Middletown) 118 University of California - Pennsylvania (Cal-
Penn II) 119 Providence Place 120 Jefferson at Cool Springs 121 Jefferson Fanns 122 Jefferson COlnmons-UT (Knoxville) 123 Jefferson River Estates 124 Jefferson at Preston 125 Jefferson Place (TX) 126 Jefferson Creek 127 Jefferson on the Cliffs 128 Lakeshore at Preston 129 Villas at Beaver Creek 130 Jefferson on the Green II

5501 New Alb,any Road New Albany, OH 43054 1170 Kinnear Road Columbus, OH 43212 1822 North Perkins Road Stillwater, OK 74075 200 North Cleveland Stillwater, OK 74048 601 Vairo Blvd. State Colllege, PA 16803 1000 Skiles Blvd Westchester, PA 19382 501 Vairo Blvd. State Colliege, PA 16803 255 California Avenue Brownsville, PA 15417 100 Harper's Crossing Langhorne, PA 19047 255 California Avenue Brownsville, PA 15417 100 Providence Place Providence, RI 02903 101 Gillespie Drive Franklin, TN 37067 201 GillespIe Drive Franklin, TN 37067 1640 Grand Avenue Knoxville, TN 37916 1445 River Estates Drive Memphis, TN 38103 6820 Preston Road Plano, TX 75024 6306 N. MacArthur Blvd. Irving, TX 75039 800 West Royal Lane Irving, TX 75039 1635 Brown Blvd. Arlington, TX 76006 3700 Preston Plano, TX 75093 1000 Meadow Creek Drive Irving, TX 75039 3400 Western Boulevard Forth Worth, TX 73037

24

Case 3:09-cv-00412-B Document 320 Filed 06/25/12 Page 25 of 30 PageID 18153

No.

Property

Address

131 Villas at Barton Creek 132 Jefferson at Monfort I 133 Jefferson at Walnut Creek 134 Jefferson at Cedar Springs 135 Jefferson on the Parkway (Haverwood) 136 Jefferson on the Parkway 137 Jefferson at Round Grove 138 Jefferson at Chase Oaks 139 Jefferson at Stone Creek (Millegan Creek) 140 Jefferson Forest 141 Jefferson at Monfort II 142 Jefferson at Stonehollow 143 Jefferson at Melrose 144 Jefferson Glen 145 Jefferson at Waters Park 146 Jefferson Village 147 Jefferson at Riverchase 148 Jefferson at Quarry Oaks 149 Jefferson at Gaston Yard 150 Jefferson at Spring Creek I 151 Jefferson on Congress 152 Jefferson at Oakbend

3050 Tamarron Blvd. Austin, TX 78746 14332 Montfort Dallas, TX 75247 12113 Metric Blvd. Austin, TX 78758 4606 Cedar Springs Dallas, TX 75219 19002 Dallas Parkway Dallas, TX 75287 1333 Eldridge Parkway Houston, TX 77077 201 E. FM 3040 Lewisville, TX 75067 300 Legacy Drive Plano, TX 75023 6800 McNeil Drive Austin, TX 78729 5959 FM 1960 West Houston, TX 77069 5711 Preston Oaks Road Dallas, TX 75240 11915 Stonehollow Drive Austin, TX 78758 1520 Richardson Drive Richardson, TX 75080 2801 Airport Freeway Bedford, TX 76021 3401 West Parmer Lane Austin, TX 78701 12840 South Kirkwood Stafford, TX 77477 600 S MacArthur Blvd. Coppell, TX 75019 6263 McNeil Road Austin, TX 78728 2572 Gaston Avenue Dallas, TX 75226 1800 East Spring Creek Plano, TX 75074 1221 South Congress Avenue Austin, TX 78704 195 E. Roundgrove Lewisville, TX 75067

25

Case 3:09-cv-00412-B Document 320 Filed 06/25/12 Page 26 of 30 PageID 18154

No.

Property

Address

153 Jefferson Commons-Parke Green (UT I) 154 Jefferson at Prestonwood Hills 155 Jefferson at Sunset Valley 156 Jefferson at Treetops 157 Jefferson at River Oaks 158 Jefferson Estates 159 Jefferson at Chimney Hill 160 Jefferson Commons-Parke Green (UT II) 161 Jefferson at Walkers Bluff (Walnut Creek) 162 Jefferson in the Park (Fielder) 163 Jefferson at Frankford 164 Jefferson at North End 165 Jefferson at Spring Creek II 166 Jefferson Hill 167 Jefferson Oak Place (Midtown) 168 Jefferson Commons-TTU (Lubbock) 169 Jefferson at Timberglen 170 Jefferson at Bryan Place 171 Villa Miranda (Valley Ranch II) 172 Jefferson at Mission Gate (Bend) 173 Jefferson Commons - SWTSU (San Marcos) 174 Jefferson Pines

4700 E. Riverside Drive Austin, TX 78741 6601 W. Plano Parkway Plano, TX 75093 5800 Brodie Lane Austin, TX 78745 621 7 Old Spicewood Springs Road Austin, TX 78731 6607 Brodie Lane Austin, TX 78745 800 W. Renner Road Richardson TX 75080 9637 Forest Lane Dallas, TX 75243 4700 E. Riverside Drive Austin, TX 78729 12100 Metric Blvd. Austin, TX 78758 1601 West Arbrook Arlington, TX 76015 7421 Frankford Road Dallas, TX 75252 2323 Field Street North Dallas, TX 75201 5000 Avenue K Plano, TX 75074 7902 N. MacArthur Blvd. Irving, TX 75039 2350 Bagby Houston, TX 77006 1002 South Frankford Avenue Lubbock, TX 79416 4651 Timberglen Dallas, TX 75287 910 Texas Street Dallas, TX 75204 7904 North Glen Drive Irving,TX 75039 8025 Ohio Road Plano, TX 75024 1740 Ranch Road 12 San Marcos, TX 78666 11100 Louetta Road Houston, TX 77070

26

Case 3:09-cv-00412-B Document 320 Filed 06/25/12 Page 27 of 30 PageID 18155

No.

Property

Address

175 Jefferson Hill Country (CannoniRanch) 176 Jefferson at Scofield Farms 177 Jefferson at Scofield Ridge 178 LaValencia (Lake) 179 Jefferson Commons-UNT (Denton) 180 University 181 Villas at Western Oaks I 182 Jefferson Commons - Ballpark (UT III) 183 Jefferson Canyon 184 Jefferson Lakes 185 Jefferson at Kessler Park 186 Jefferson Center 187 Villas at Western Oaks II 188 Jefferson at Texas Street (Bryan Place II) 189 Jefferson Common - Town Lake 190 Las Villas de Merida 191 Gables Champion 192 Jefferson at Founder's Park (Kessler Park II) 193 West Campus 194 Westend Station (Ross Avenue II) 195 Jefferson Art's District 196 Jefferson at Fair Oaks

3014 William Cannon Austin, TX 78745 2600 Scofield Ridge Parkway Austin, TX 78727 2601 Scofield Ridge Parkway Austin, TX 78727 10106 E. Technology Blvd. Dallas, TX 75225 2700 Colorado Denton, TX 76205 4400 W. University Dallas, TX 75209 8801 LaCresada Drive Austin, TX 78749 4600 Elmont Drive Austin, TX 78741 11350 Four Points Drive Austin, TX 78726 7655 N. FM 620 Austin, TX 78726 1520 North Beckley Dallas, TX 75203 8701 West Parmer Road Austin, TX 78729 8801 LaCresada Drive Austin, TX 78749 2801 Live Oak Dallas, TX 75024 1109 South Pleasant Valley Austin, TX 78759 1700 South Hamilton Street San Antonio, TX 78207 6500 N Champion Grand View Way Austin, TX 78750 1409 Zang Blvd. Dallas, TX 75203 600 West 26th Street Austin, TX 78705 407 N Lamar Dallas, TX 75202 1700 N. Routh Dallas, TX75202 4201 Jefferson Oaks Circle Fairfax, VA 22033

27

Case 3:09-cv-00412-B Document 320 Filed 06/25/12 Page 28 of 30 PageID 18156

No.

Property

Address

197 Jefferson at Van Dorn Van Dorn 198 Jefferson at Loudoun Village 199 Jefferson at President's Park 200 Park (VA) 201 Virginia Commonwealth University (VCU -
West Broad)

5901 Coverdale Way Alexandria, VA 22310 20576 Idlebrook Terrace Sterling, VA 20165 13800 Jefferson Park Drive Herndon, VA 20170 8063 Genea Way Falls Church, VA 22042 1100 West Broad Street Richmond, VA 23220

202 Jefferson at Carlyle Mill

2201 Mill Road

Alexandria, VA 22314

203 Jefferson at Clarendon Center

3000 Washington Blvd

Arlington, VA 22201

204 Virginia Commonwealth University (VCU II) 700 West Broad Street

RichlTIond, VA 23220

205 Virginia State University (VSU)

4010 J. Mitchell Drive

Petersburg, VA 23803

206 Jefferson at Sullivan's Place (Edsall Road)

6461 Edsall Road

Alexandria, VA 22312

207 The Byron

513 West Broad Street

Falls Church, VA 22046

208 Jefferson at Mill Creek

14420 North Creek Drive

Mill Creek, WA 98012

209 Jefferson at Marymoor

6318 E. Lake Samammish Pkwy NE

Redmond, WA 98052

210 Jefferson Talus (Cougar Mountain)

2128 NW Shy Bear Way

Issaquah, WA 98027

28

Case 3:09-cv-00412-B Document 320 Filed 06/25/12 Page 29 of 30 PageID 18157

APPENDIXB

ACKNOWLEDGMENT OF RECEIPT OF CONSENT ORDER

On

, I received copies of and have read the Consent Order entered by

the federal district court in United States v. JPI Constr., LP., et aI, No. 3:09-cv-0412-B (N.D. Tex.).

I have had all of my questions concerning the Consent Order and the Fair Housing Act answered to

Iny satisfaction.

(Signature) (Print name) (Position) (Date)

29

Case 3:09-cv-00412-B Document 320 Filed 06/25/12 Page 30 of 30 PageID 18158
APPENDIXC CERTIFICATION OF FAIR HOUSING
TRAINING On ________ ,I attended training on the federal Fair Housing Act, including its requirements concerning accessibility for persons with a disabilities. I have had all of my questions concerning the Fair Housing Act answered to lny satisfaction. (Signature) (Print nalne) (Position) (Date)
30

 
 Case 3:09-cv-00412-B Document 321 Filed 06/25/12 Page 1 of 1 PageID 18159

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

UNITED STATES OF AMERICA, Plaintiff,
v. JPI CONSTRUCTION, L.P., et al.,
Defendants.

§ § § § § CIVIL ACTION NO. 3:09-CV-412-B § § § §

ORDER DISMISSING ALL CLAIMS AND CLOSING CASE

In light of the parties’ settlement and the Court’s Consent Order filed June 25, 2012, which

resolves all issues between the parties, the United States’ claims are hereby DISMISSED WITH

PREJUDICE. The Clerk of Court is instructed to administratively close this case.

SO ORDERED. DATED: June 25, 2012.

_________________________________ JANE J. BOYLE UNITED STATES DISTRICT JUDGE

 
 Case: 3:09-cv-412 As of: 02/17/2016 10:32 PM CST 1 of 36
U.S. District Court Northern District of Texas (Dallas) CIVIL DOCKET FOR CASE #: 3:09−cv−00412−B

CLOSED,JURY

United States of America et al v. JPI Construction LP et al Assigned to: Judge Jane J Boyle Cause: 42:405 Fair Housing Act
Plaintiff

Date Filed: 03/04/2009 Date Terminated: 06/25/2012 Jury Demand: Defendant Nature of Suit: 443 Civil Rights: Housing/Accommodations Jurisdiction: U.S. Government Plaintiff

United States of America

represented by Andrea K Steinacker US Department of Justice − Civil Rights Division Housing &Civil Enforcement Section 950 Pennsylvania Ave NW − G Street Washington, DC 20530 202/305−0744 Fax: 202/514−1116 Email: andrea.steinacker@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Not Admitted

James T Jacks−DOJ US Attorney's Office 1100 Commerce St 3rd Floor Dallas, TX 75242 214/659−8725 Fax: 214/767−2898 FAX Email: usatxn.ecfbounceback@usdoj.gov Bar Status: Not Admitted

Jennifer E McAllister US Department of Justice 950 Pennsylvania Ave NW Washington, DC 20530 202/305−2011 Fax: 202/514−1116 Email: jennifer.mcallister@usdoj.gov ATTORNEY TO BE NOTICED Bar Status: Not Admitted

John R Parker−DOJ US Attorney's Office 1100 Commerce St 3rd Floor Dallas, TX 75242−1699 214/659−8728 Fax: 214/767−2916 Email: john.parker@usdoj.gov ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

Kevin J Kijewski US Department of Justice − Civil Rights Division 950 Pennsylvania Ave NW Washington, DC 20530 202/514−4713

Case: 3:09-cv-412 As of: 02/17/2016 10:32 PM CST 2 of 36
Fax: 202/514−1116 Email: kevin.kijewski@usdoj.gov TERMINATED: 01/30/2012 Bar Status: Not Admitted
Lynette S Wilson−DOJ US Attorney's Office 1100 Commerce St Suite 300 Dallas, TX 75242 214/659−8611 Fax: 214/767−2916 Email: usatxn.ecfbounceback@usdoj.gov ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
Michael S Maurer US Department of Justice − Housing &Civil Enf Section 950 Pennsylvania Ave NW Washington, DC 20530 202/305−2913 Fax: 202/514−1116 Email: michael.maurer@usdoj.gov ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Neta Borshansky US Department of Justice − Civil Rights Division 950 Pennsylvania Ave NW Washington, DC 20530 202/353−0261 Fax: 202/514−1116 Email: neta.borshansky@usdoj.gov ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Pamela Owen Barron US Department of Justice 950 Pennsylvania Ave NW Washington, DC 20530 202/514−1968 Fax: 202/514−1116 Email: Pamela.Barron@usdoj.gov ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Steven H Rosenbaum US Department of Justice Civil Rights Division PO Box 66128 Washington, DC 20035−6128 202/514−6196
Susan L S Ernst−DOJ US Attorney's Office 1100 Commerce St 3rd Floor Dallas, TX 75242 214/659−8626 Fax: 214/659−8807 Email: susan.ernst@usdoj.gov TERMINATED: 02/23/2012 Bar Status: Admitted/In Good Standing

Case: 3:09-cv-412 As of: 02/17/2016 10:32 PM CST 3 of 36

V. Defendant JPI Construction LP

represented by Lynn E Calkins Holland &Knight 800 17th Street, N.W. Suite 1100 Washington, DC 20006 202/955−3000 Fax: 202/955−5564 Email: lynn.calkins@hklaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Christopher Hanback Holland &Knight LLP 2099 Pennsylvania Ave NW Suite 100 Washington, DC 20006 202/955−3000 Fax: 202/955−5564 Email: christopher.hanback@hklaw.com PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Elaine Polemenakos Sessions Lambert Selwyn 1700 Pacific Ave Suite 2250 Dallas, TX 75201 214/217−8050 Fax: 214/217−8861 Email: epolemenakos@cwlaw.com TERMINATED: 11/24/2009 Bar Status: Admitted/In Good Standing
Paul A McDermott Holland &Knight LLP 100 N Tampa Street Suite 4100 Tampa, FL 33602 813/227−8500 Email: paul.mcdermott@hklaw.com PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Rafe Petersen Holland &Knight LLP 800 17th Street, NW Suite 1100 Washington, DC 20006 202/955−3000 Email: rafe.petersen@hklaw.com ATTORNEY TO BE NOTICED Bar Status: Not Admitted
William L Sessions Sessions &Associates, PLLC 14951 N Dallas Parkway, Suite 400 Dallas, TX 75254

Case: 3:09-cv-412 As of: 02/17/2016 10:32 PM CST 4 of 36

214/217−8855 Fax: 214/723−5346 Email: lsessions@sessionslaw.net ATTORNEY TO BE NOTICED Bar Status: Not Admitted

Defendant Multifamily Construction LLC

represented by Lynn E Calkins (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Christopher Hanback (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Elaine Polemenakos (See above for address) TERMINATED: 11/24/2009 Bar Status: Admitted/In Good Standing
Paul A McDermott (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Rafe Petersen (See above for address) ATTORNEY TO BE NOTICED Bar Status: Not Admitted
William L Sessions (See above for address) ATTORNEY TO BE NOTICED Bar Status: Not Admitted

Defendant
JPI Apartment Development LP doing business as JPI Campus Quarters

represented by Lynn E Calkins (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Christopher Hanback (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Elaine Polemenakos (See above for address) TERMINATED: 11/24/2009 Bar Status: Admitted/In Good Standing
Paul A McDermott (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted

Case: 3:09-cv-412 As of: 02/17/2016 10:32 PM CST 5 of 36

Rafe Petersen (See above for address) ATTORNEY TO BE NOTICED Bar Status: Not Admitted

William L Sessions (See above for address) ATTORNEY TO BE NOTICED Bar Status: Not Admitted

Defendant
Lifestyle Apartment Development Service LLC

represented by Lynn E Calkins (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Not Admitted

Christopher Hanback (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted

Elaine Polemenakos (See above for address) TERMINATED: 11/24/2009 Bar Status: Admitted/In Good Standing

Paul A McDermott (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted

Rafe Petersen (See above for address) ATTORNEY TO BE NOTICED Bar Status: Not Admitted

William L Sessions (See above for address) ATTORNEY TO BE NOTICED Bar Status: Not Admitted

Defendant
Jefferson Bend LP doing business as Jefferson At Mission Gate Apartments

represented by Lynn E Calkins (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Not Admitted

Christopher Hanback (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted

Elaine Polemenakos (See above for address) TERMINATED: 11/24/2009 Bar Status: Admitted/In Good Standing

Paul A McDermott (See above for address)

Case: 3:09-cv-412 As of: 02/17/2016 10:32 PM CST 6 of 36

PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Rafe Petersen (See above for address) ATTORNEY TO BE NOTICED Bar Status: Not Admitted
William L Sessions (See above for address) ATTORNEY TO BE NOTICED Bar Status: Not Admitted

Defendant
Jefferson Lake Creek LP doing business as Jefferson Center Apartments

represented by Lynn E Calkins (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Christopher Hanback (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Elaine Polemenakos (See above for address) TERMINATED: 11/24/2009 Bar Status: Admitted/In Good Standing
Paul A McDermott (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Rafe Petersen (See above for address) ATTORNEY TO BE NOTICED Bar Status: Not Admitted
William L Sessions (See above for address) ATTORNEY TO BE NOTICED Bar Status: Not Admitted

Defendant Apartment Community Realty LLC

represented by Lynn E Calkins (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Christopher Hanback (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Elaine Polemenakos (See above for address) TERMINATED: 11/24/2009

Case: 3:09-cv-412 As of: 02/17/2016 10:32 PM CST 7 of 36
Bar Status: Admitted/In Good Standing
Paul A McDermott (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Rafe Petersen (See above for address) ATTORNEY TO BE NOTICED Bar Status: Not Admitted
William L Sessions (See above for address) ATTORNEY TO BE NOTICED Bar Status: Not Admitted

Date Filed 03/04/2009
03/04/2009 03/05/2009 03/12/2009 03/12/2009 03/12/2009 03/12/2009 03/12/2009 03/12/2009 03/12/2009 04/01/2009
04/01/2009

# Docket Text
1 COMPLAINT against Apartment Community Realty LLC, JPI Construction LP, Multifamily Construction LLC, JPI Apartment Development LP, Lifestyle Apartment Development Service LLC, Jefferson Bend LP, Jefferson Lake Creek LP filed by United States of America. (lmp) (Entered: 03/04/2009)
2 CERTIFICATE OF INTERESTED PERSONS/DISCLOSURE STATEMENT by United States of America. (lmp) (Entered: 03/04/2009)
3 (Corrected) CERTIFICATE OF INTERESTED PERSONS/DISCLOSURE STATEMENT by United States of America. (Parker, John) Modified on 3/5/2009 (tln). (Entered: 03/05/2009)
4 WAIVER OF SERVICE Returned Executed as to Apartment Community Realty LLC. Waiver sent on 3/09/2008. (McAllister, Jennifer) Modified on 3/13/2009 (tln). (Entered: 03/12/2009)
5 WAIVER OF SERVICE Returned Executed as to Jefferson Bend LP. Waiver sent on 3/09/2008. (McAllister, Jennifer) Modified on 3/13/2009 (tln). (Entered: 03/12/2009)
6 WAIVER OF SERVICE Returned Executed as to Jefferson Lake Creek LP. Waiver sent on 3/09/2008. (McAllister, Jennifer) Modified on 3/13/2009 (tln). (Entered: 03/12/2009)
7 WAIVER OF SERVICE Returned Executed as to JPI Apartment Development LP. Waiver sent on 3/09/2008. (McAllister, Jennifer) Modified on 3/13/2009 (tln). (Entered: 03/12/2009)
8 WAIVER OF SERVICE Returned Executed as to JPI Construction LP. Waiver sent on 3/09/2008. (McAllister, Jennifer) Modified on 3/13/2009 (tln). (Entered: 03/12/2009)
9 WAIVER OF SERVICE Returned Executed as to Lifestyle Apartment Development Service LLC. Waiver sent on 3/09/2008. (McAllister, Jennifer) Modified on 3/13/2009 (tln). (Entered: 03/12/2009)
10 WAIVER OF SERVICE Returned Executed as to Multifamily Construction LLC. Waiver sent on 3/09/2008. (McAllister, Jennifer) Modified on 3/13/2009 (tln). (Entered: 03/12/2009)
11 WAIVER OF SERVICE Returned Executed as to Apartment Community Realty LLC. Waiver sent on 3/9/2009. (Attachments: # 1 Correcting Waiver of Service of Summons Returned Executed Docket No. 4 as to Apartment Community Realty, LLC) (Kijewski, Kevin) (Entered: 04/01/2009)
12 WAIVER OF SERVICE Returned Executed as to Jefferson Bend LP. Waiver sent on 3/9/2009. (Attachments: # 1 Correcting Waiver of Service of Summons

Case: 3:09-cv-412 As of: 02/17/2016 10:32 PM CST 8 of 36

04/01/2009 04/01/2009 04/01/2009 04/01/2009 04/01/2009 05/08/2009 05/08/2009 05/11/2009 05/11/2009 05/11/2009 06/02/2009 06/23/2009 07/13/2009

Returned Executed Docket No. 5 as to Jefferson Bend LP) (Kijewski, Kevin) (Entered: 04/01/2009)
13 WAIVER OF SERVICE Returned Executed as to Jefferson Lake Creek LP. Waiver sent on 3/9/2009. (Attachments: # 1 Correcting Waiver of Service of Summons Returned Executed Docket No. 6 as to Jefferson Lake Creek LP) (Kijewski, Kevin) (Entered: 04/01/2009)
14 WAIVER OF SERVICE Returned Executed as to JPI Apartment Development LP. Waiver sent on 3/9/2009. (Attachments: # 1 Correcting Waiver of Service of Summons Returned Executed Docket No. 7 as to JPI Apartment Development LP) (Kijewski, Kevin) (Entered: 04/01/2009)
15 WAIVER OF SERVICE Returned Executed as to JPI Construction LP. Waiver sent on 3/9/2009. (Attachments: # 1 Correcting Waiver of Service of Summons Returned Executed Docket No. 8 as to JPI Construction LP) (Kijewski, Kevin) (Entered: 04/01/2009)
16 WAIVER OF SERVICE Returned Executed as to Lifestyle Apartment Development Service LLC. Waiver sent on 3/9/2009. (Attachments: # 1 Correcting Waiver of Service of Summons Returned Executed Docket No. 9 as to Lifestyle Apartment Development Service LLC) (Kijewski, Kevin) (Entered: 04/01/2009)
17 WAIVER OF SERVICE Returned Executed as to Multifamily Construction LLC. Waiver sent on 3/9/2009. (Attachments: # 1 Correcting Waiver of Service of Summons Returned Executed Docket No. 10 as to Multifamily Construction LLC) (Kijewski, Kevin) (Entered: 04/01/2009)
18 ANSWER to 1 Complaint, with Jury Demand filed by Apartment Community Realty LLC, JPI Construction LP, Multifamily Construction LLC, JPI Apartment Development LP, Lifestyle Apartment Development Service LLC, Jefferson Bend LP, Jefferson Lake Creek LP (Sessions, William) (Entered: 05/08/2009)
19 CERTIFICATE OF INTERESTED PERSONS/DISCLOSURE STATEMENT by Apartment Community Realty LLC, JPI Construction LP, Multifamily Construction LLC, JPI Apartment Development LP, Lifestyle Apartment Development Service LLC, Jefferson Bend LP, Jefferson Lake Creek LP. (Sessions, William) (Entered: 05/08/2009)
20 Application and Order for Admission Pro Hac Vice by Rafe Petersen for Apartment Community Realty LLC, JPI Construction LP, Multifamily Construction LLC, JPI Apartment Development LP, Lifestyle Apartment Development Service LLC, Jefferson Bend LP and Jefferson Lake Creek LP (Ordered by Judge Jane J Boyle on 5/11/09) (svc) (Entered: 05/12/2009)
21 Application and Order for Admission Pro Hac Vice by Lynn E Calkins for Apartment Community Realty LLC, JPI Construction LP, Multifamily Construction LLC, JPI Apartment Development LP, Lifestyle Apartment Development Service LLC, Jefferson Bend LP and Jefferson Lake Creek LP (Ordered by Judge Jane J Boyle on 5/11/09) (svc) (Entered: 05/12/2009)
22 Application and Order for Admission Pro Hac Vice by Christopher Hanback for Apartment Community Realty LLC, JPI Construction LP, Multifamily Construction LLC, JPI Apartment Development LP, Lifestyle Apartment Development Service LLC, Jefferson Bend LP and Jefferson Lake Creek LP (Ordered by Judge Jane J Boyle on 5/11/09) (svc) (Entered: 05/12/2009)
23 STATUS REPORT ORDER: Joint Status Report due by 6/23/2009. (see order) (Ordered by Judge Jane J Boyle on 6/2/2009) (klm) (Entered: 06/02/2009)
24 Joint STATUS REPORT filed by Apartment Community Realty LLC, United States of America, JPI Construction LP, Multifamily Construction LLC, JPI Apartment Development LP, Lifestyle Apartment Development Service LLC, Jefferson Bend LP, Jefferson Lake Creek LP. (Kijewski, Kevin) (Entered: 06/23/2009)
25 Corrected Joint STATUS REPORT filed by Apartment Community Realty LLC, United States of America, JPI Construction LP, Multifamily Construction LLC, JPI

Case: 3:09-cv-412 As of: 02/17/2016 10:32 PM CST 9 of 36

07/15/2009 07/16/2009 07/16/2009 07/17/2009 08/07/2009 08/14/2009 08/17/2009 10/01/2009
10/23/2009
10/23/2009
11/16/2009
11/16/2009

Apartment Development LP, Lifestyle Apartment Development Service LLC, Jefferson Bend LP, Jefferson Lake Creek LP. (Petersen, Rafe) Modified on 7/14/2009 (klm). (Entered: 07/13/2009)
26 ORDER REFERRING CASE FOR PRETRIAL MANAGEMENT. Pursuant to 28 U.S.C. § 636(b), this case is referred to U.S. Magistrate Judge Jeff Kaplan for pretrial management. (see order) (Ordered by Judge Jane J Boyle on 07/15/09) (lmp) (Entered: 07/16/2009)
27 STANDING ORDER ON NON−DISPOSITIVE MOTIONS: (See order for specifics). (Ordered by Magistrate Judge Jeff Kaplan on 7/16/09) (jca) (Entered: 07/16/2009)
28 ORDER SETTING RULE 16 SCHEDULING CONFERENCE: A scheduling and planning conference will be held on August 14, 2009 at 9:00 a.m. before Judge Kaplan, 1100 Commerce Street, 16th Floor, Dallas, Texas. Lead counsel for all parties must attend this conference in person. (See order for specifics). (Ordered by Magistrate Judge Jeff Kaplan on 7/16/09) (jca) (Entered: 07/16/2009)
Set Hearings: Scheduling Conference set for 8/14/2009 09:00 AM before Magistrate Judge Jeff Kaplan. (per order#28) (lmp) (Entered: 07/17/2009)
29 NOTICE of Attorney Appearance by Susan L S Ernst − DOJ on behalf of United States of America. (Ernst − DOJ, Susan) (Entered: 08/07/2009)
31 Minute Entry for proceedings held before Magistrate Judge Jeff Kaplan: Scheduling Conference held on 08/14/09. Attorney Appearances: Plaintiff − Susan Ernst, Kevin Kijewski; Defense − Chris Hanbaek, Rafe Peterson, Lynn Calkins,.(Not Recorded.) Time in Court: 1hr 15min. (lmp) (Entered: 08/18/2009)
30 ORDER: The Parties shall submit a joint status report and proposed scheduling plan by 9/29/2009. (see order) (Ordered by Magistrate Judge Jeff Kaplan on 8/17/2009) (axm) (Entered: 08/17/2009)
32 Supplemental Joint STATUS REPORT filed by Apartment Community Realty LLC, United States of America, JPI Construction LP, Multifamily Construction LLC, JPI Apartment Development LP, Lifestyle Apartment Development Service LLC, Jefferson Bend LP, Jefferson Lake Creek LP. (Attachments: # 1 Appendix United States' Appendix A, # 2 Appendix United States' Appendix B, # 3 Exhibit Defendants' Exhibit 1, # 4 Exhibit Defendants' Exhibit 2) (McAllister, Jennifer) Modified on 10/2/2009 (klm). (Entered: 10/01/2009)
33 Second Supplemental Joint Status Report filed by Apartment Community Realty LLC, United States of America, JPI Construction LP, Multifamily Construction LLC, JPI Apartment Development LP, Lifestyle Apartment Development Service LLC, Jefferson Bend LP, Jefferson Lake Creek LP. (Attachments: # 1 Exhibit Ex 1 − 52 Subject Properties by Alphabetical Order, # 2 Exhibit Ex 2 − 52 Subject Properties by Geographical Region Order) (Kijewski, Kevin) Modified on 10/26/2009 (mfw). (Entered: 10/23/2009)
34 ORDER SETTING RULE 16 SCHEDULING CONFERENCE: After reviewing the joint status report, the court determines that another Rule 16 scheduling conference is necessary. This conference will be held on 11/6/2009 at 10:00 am before Judge Kaplan. Lead counsel for all parties must attend this conference IN PERSON. (See order for specifics) (Ordered by Magistrate Judge Jeff Kaplan on 10/23/2009) (vdf) (Entered: 10/23/2009)
35 SCHEDULING ORDER FOR INITIAL PHASE OF DISCOVERY: Dispositive motions will be filed by 3/15/2011. Amended pleadings must be filed by 1/14/2010. Discovery must be initiated in time to be completed by 2/15/2011. Parties must be joined by 1/14/2010. (See order for specifics). (Ordered by Magistrate Judge Jeff Kaplan on 11/16/09) (jca) Modified on 11/16/2009 (caw). (Entered: 11/16/2009)
Set/Reset Scheduling Order Deadlines: Amended Pleadings due by 1/14/2010. Discovery due by 2/15/2011. Joinder of Parties due by 1/14/2010. Motions due by 3/15/2011. (jca) Modified on 11/16/2009 (caw). (Entered: 11/16/2009)

Case: 3:09-cv-412 As of: 02/17/2016 10:32 PM CST 10 of 36

11/18/2009 11/19/2009
11/23/2009 11/23/2009 11/24/2009 01/14/2010 01/14/2010
02/16/2010 03/12/2010 03/19/2010
03/19/2010 03/22/2010 03/22/2010 03/24/2010

36 MOTION to Withdraw filed by Apartment Community Realty LLC, JPI Construction LP, Multifamily Construction LLC, JPI Apartment Development LP, Lifestyle Apartment Development Service LLC, Jefferson Bend LP, Jefferson Lake Creek LP (Polemenakos, Elaine) (Entered: 11/18/2009)
37 ORDER: Elaine Polemenakos and the law firm of Conner &Winters, LLP has filed a motion to withdraw as attorneys of record in this case. Although the motion is unopposed, it is not accompanied by a proposed order signed by all counsel of record. A proposed order in proper form must be submitted electronically toKaplan_Orders@txnd.uscourts.gov by 11/23/2009. Counsel shall also deliver a hard copy of the proposed order to chambers by that date. (See order for specifics) (Ordered by Magistrate Judge Jeff Kaplan on 11/19/2009) (vdf) (Entered: 11/19/2009)
38 Amended MOTION to Withdraw filed by Apartment Community Realty LLC, JPI Construction LP, Multifamily Construction LLC, JPI Apartment Development LP, Lifestyle Apartment Development Service LLC, Jefferson Bend LP, Jefferson Lake Creek LP (Polemenakos, Elaine) (Entered: 11/23/2009)
39 NOTICE of Change of Address by William L Sessions, counsel for JPI Construction LP. New address is: 325 North St. Paul Street, Suite 4400, Dallas, Texas 75201 (Sessions, William) (Entered: 11/23/2009)
40 ORDER granting 38 Motion to Withdraw (See order for specifics). (Ordered by Magistrate Judge Jeff Kaplan on 11/24/09) (jca) (Entered: 11/24/2009)
41 NOTICE OF WITNESSES THE UNITED STATES INTENDS TO HAVE TESTIFY REGARDING PROPERTY INSPECTIONS re: 35 Scheduling Order, filed by United States of America (Kijewski, Kevin) (Entered: 01/14/2010)
42 NOTICE of Defendants' Preliminary Expert Disclosure Statement re: 35 Scheduling Order, filed by Apartment Community Realty LLC, JPI Construction LP, Multifamily Construction LLC, JPI Apartment Development LP, Lifestyle Apartment Development Service LLC, Jefferson Bend LP, Jefferson Lake Creek LP (Calkins, Lynn) (Entered: 01/14/2010)
43 NOTICE of Attorney Appearance by Pamela Owen Barron on behalf of United States of America. (Barron, Pamela) (Entered: 02/16/2010)
44 PROTECTIVE ORDER REGARDING DISCLOSURE OF PRIVACY ACT − PROTECTED RECORDS AND CONFIDENTIAL MATERIAL. (see order) (Ordered by Magistrate Judge Jeff Kaplan on 3/12/2010) (klm) (Entered: 03/12/2010)
45 NOTICE of Disclosure of Expert Testimony re: 35 Scheduling Order filed by United States of America (Attachments: # 1 Expert Report, # 2 Appendix 1 John H. Catlin Resume, # 3 Appendix 2 Douglas A. Mohnke Resume, # 4 Appendix 3, Part 1 of 4A, Jefferson at Riverchase, # 5 Appendix 3, Part 1 of 4 B, # 6 Appendix 3, Part 2 of 4A, # 7 Appendix 3, Part 2 of 4B, # 8 Appendix 3, Part 3 of 4, # 9 Appendix 3, Part 4 of 4A, # 10 Appendix 3, Part 4 of 4B) (Kijewski, Kevin) (Entered: 03/19/2010)
46 Notice of Manual Filing of Submission of Compact Disc in Support of Expert Testimony by United States of America (Kijewski, Kevin) Modified on 3/22/2010 (skt). (Entered: 03/19/2010)
47 NOTICE of Disclosure of Expert Testimony re: 35 Scheduling Order, filed by United States of America (Attachments: # 1 Expert Report, # 2 Part 1 of 3, # 3 Part 2 of 3, # 4 Part 3 of 3, # 5 Report of Inspection of Jefferson Center Apartments) (McAllister, Jennifer) Modified on 3/23/2010 (axm). (Entered: 03/22/2010)
48 Notice of Manual Filing of Submission of Compact Disc in Support of Expert Testimony by United States of America re 47 Notice (Other), Notice (Other) (McAllister, Jennifer) (Entered: 03/22/2010)
49 NOTICE of Attorney Appearance by Neta Borshansky on behalf of United States of America. (Borshansky, Neta) (Entered: 03/24/2010)

Case: 3:09-cv-412 As of: 02/17/2016 10:32 PM CST 11 of 36

03/26/2010 03/26/2010 03/29/2010 03/31/2010
03/31/2010
04/08/2010
04/08/2010 04/09/2010 04/09/2010 04/12/2010 04/12/2010
04/12/2010 04/22/2010

50 NOTICE of Disclosure of Expert Testimony re: 35 Scheduling Order, filed by United States of America (Attachments: # 1 Exhibit Expert Report: Accessibility Evaluation of Multi−Family Properties Part 1 of 2, # 2 Exhibit Expert Report: Accessibility Evaluation of Multi−Family Properties Part 2 of 2) (Barron, Pamela) (Entered: 03/26/2010)
51 Notice of Manual Filing of Compact Disc (CD) in Support of Expert Testimony by United States of America re 50 Notice (Other), Notice (Other) Submission of Compact Disc (Barron, Pamela) (Entered: 03/26/2010)
52 NOTICE of Submission of Compact Disc in support of Expert Testimony filed by United States of America. (Disc under separate cover) (twd) (Entered: 03/30/2010)
53 NOTICE of Submission of Appendices 4 and 5, to Supplement Expert Report re: 45 Notice (Other), Notice (Other), Notice (Other), Notice (Other) filed by United States of America (Attachments: # 1 Appendix Appendix 4 Jefferson Canyon Detailed Report Part 1 of 2, # 2 Appendix Appendix 4 Jefferson Canyon Part 2 of 2, # 3 Appendix Appendix 5 Jefferson Lakes Detailed Report Part 1 of 2, # 4 Appendix Appendix 5 Jefferson Lakes Detailed Report Part 2 of 2) (Barron, Pamela) (Entered: 03/31/2010)
54 NOTICE of Manual Filing of Compact Disc (CD) in Support of Expert Testimony re: 53 Notice of Submission of Appendices 4 and 5, to Supplement Expert Repor filed by United States of America. (Barron, Pamela) (2 CDS−Under Seperate Cover, contact records) (Additional attachment(s) added on 4/1/2010: # 1 CD) (axm). Modified on 4/1/2010 (axm). Modified on 4/1/2010 (axm). (Entered: 03/31/2010)
55 NOTICE of Disclosure of Expert Testimony re: 35 Scheduling Order, filed by United States of America (Attachments: # 1 Supplement Expert Report, # 2 Appendix Accessibility Survey Report of Jefferson at Mission Gate Apartment Homes, # 3 Appendix Accessibility Survey Report of Jefferson at University of Louisiana Monroe, LA, Student Housing, # 4 Appendix Frank Colby Curriculum Vitae) (McAllister, Jennifer) (Entered: 04/08/2010)
56 Notice of Submission of Compact Disc in Support of Expert Testimony. (McAllister, Jennifer) Modified on 4/9/2010 (mfw). (Entered: 04/08/2010)
57 NOTICE of Submission of Report of Inspection to 47 Supplement Expert Report filed by United States of America (Attachments: # 1 Supplement Report of Inspection of Jefferson at Preston Part 1 of 2, # 2 Supplement Report of Inspection of Jefferson at Preston Part 2 of 2) (McAllister, Jennifer) Modified on 4/12/2010 (skt). (Entered: 04/09/2010)
58 Notice of Manual Filing of Supplement by United States of America re 57 Notice (Other), Notice (Other) Submission of Compact Disc in Support of Expert Testimony (McAllister, Jennifer) (Entered: 04/09/2010)
59 Supplemental Document by Apartment Community Realty LLC, JPI Construction LP, Multifamily Construction LLC, JPI Apartment Development LP, Lifestyle Apartment Development Service LLC, Jefferson Bend LP, Jefferson Lake Creek LP as to 42 Notice (Other), Notice (Other) Preliminary Expert Disclosure Statement. (Calkins, Lynn) (Entered: 04/12/2010)
60 NOTICE re: 50 Notice (Other), Notice (Other) filed by United States of America (Attachments: # 1 Appendix Submission of Appendix C, to Supplement Expert Report, Part 1 of 4, # 2 Appendix Submission of Appendix C, to Supplement Expert Report, Part 2 of 4, # 3 Appendix Submission of Appendix C, to Supplement Expert Report, Part 3 of 4, # 4 Appendix Submission of Appendix C to Supplement Expert Report, Part 4 of 4) (Barron, Pamela) (Entered: 04/12/2010)
61 Notice of Manual Filing of Notice by United States of America re 60 Notice (Other), Notice (Other) Notice of Submission of Compact Disc in Support of Expert Testimony (Barron, Pamela) (Entered: 04/12/2010)
62 NOTICE of Submission of Appendix 7 to Supplement re: 45 Notice (Other), Notice (Other), Notice (Other), Notice (Other) filed by United States of America (Attachments: # 1 Appendix 7 Jefferson at Bryan Place II Detailed Report Part 1 of

Case: 3:09-cv-412 As of: 02/17/2016 10:32 PM CST 12 of 36

04/22/2010 04/22/2010 04/22/2010 04/23/2010
04/23/2010 04/23/2010 04/28/2010 04/29/2010 04/29/2010 05/12/2010 05/12/2010 05/12/2010
05/12/2010 05/12/2010

3, # 2 Appendix 7 Jefferson at Bryan Place II Detailed Report Part 2 of 3, # 3 Appendix 7 Jefferson at Bryan Place II Detailed Report Part 3 of 3) (Kijewski, Kevin) (Entered: 04/22/2010)
63 Notice of Manual Filing of Compact Disc (CD) in Support of Expert Testimony by United States of America re 62 Notice (Other), Notice (Other) Photographs of Jefferson at Bryan Place II (Appendix 7) (Kijewski, Kevin) (Entered: 04/22/2010)
64 NOTICE of Submission of Appendix E re: 55 Notice (Other), Notice (Other) filed by United States of America (Attachments: # 1 Appendix E Jefferson at Prestonwood Hills Accessibility Survey Report) (Borshansky, Neta) (Entered: 04/22/2010)
65 Notice of Manual Filing of Compact Disc (CD) in Support of Expert Testimony by United States of America re 64 Notice (Other) Photographs of Jefferson at Prestonwood Hills (Appendix E) (Borshansky, Neta) (Entered: 04/22/2010)
66 NOTICE of Submission of Appendix 6 re: 45 Notice (Other), Notice (Other), Notice (Other), Notice (Other) filed by United States of America (Attachments: # 1 Appendix 6 Jefferson Hill Detailed Report (Part 1 of 5), # 2 Appendix 6 Jefferson Hill Detailed Report (Part 2 of 5), # 3 Appendix 6 Jefferson Hill Detailed Report (Part 3 of 5), # 4 Appendix 6 Jefferson Hill Detailed Report (Part 4 of 5), # 5 Appendix 6 Jefferson Hill Detailed Report (Part 5 of 5)) (Borshansky, Neta) (Entered: 04/23/2010)
67 Notice of Manual Filing of Compact Disc (CD) in Support of Expert Testimony by United States of America re 66 Notice (Other), Notice (Other) Photographs of Jefferson Hill (Borshansky, Neta) (Entered: 04/23/2010)
68 NOTICE of Submission of Revised Page 2 of Appendix 6 re: 66 Notice (Other), Notice (Other) filed by United States of America (Borshansky, Neta) (Entered: 04/23/2010)
69 Proof of Service for Subpoena served on Dan Brennan on 4/27/2010. (tln) (Entered: 04/28/2010)
70 NOTICE of Submission of Report of Inspection to Supplement 47 Expert Report filed by United States of America (Attachments: # 1 Report of Inspection of Jefferson at Founder's Park, # 2 Ken Schoonover's Updated Curriculum Vitae) (McAllister, Jennifer) Modified on 4/30/2010 (skt). (Entered: 04/29/2010)
71 Notice of Submission of Compact Disc (CD) by United States of America in Support of 70 Expert Testimoney (McAllister, Jennifer) Modified on 4/30/2010 (skt). (Entered: 04/29/2010)
72 NOTICE of Submission of Appendix F re: 55 Notice (Other), Notice (Other) filed by United States of America (Attachments: # 1 Appendix F Jefferson Arts District Accessibility Survey Report) (Borshansky, Neta) (Entered: 05/12/2010)
73 Notice of Manual Filing of Compact Disc in Support of Expert Testimony by United States of America re 72 Notice (Other) Photographs of Jefferson Arts District (Borshansky, Neta) (Entered: 05/12/2010)
74 NOTICE of Submission of Appendix 8 re: 45 Notice (Other), Notice (Other), Notice (Other), Notice (Other) filed by United States of America (Attachments: # 1 Appendix 8 Jefferson at Frankford Detailed Report Part 1 of 5, # 2 Appendix 8 Jefferson at Frankford Detailed Report Part 2 of 5, # 3 Appendix 8 Jefferson at Frankford Detailed Report Part 3 of 5, # 4 Appendix 8 Jefferson at Frankford Detailed Report Part 4 of 5, # 5 Appendix 8 Jefferson at Frankford Detailed Report Part 5 of 5) (Borshansky, Neta) (Entered: 05/12/2010)
75 Notice of Manual Filing of Compact Disc in Support of Expert Testimony by United States of America re 74 Notice (Other), Notice (Other), Notice (Other) Photographs of Jefferson at Frankford (Borshansky, Neta) (Entered: 05/12/2010)
76 NOTICE of Submission of Appendix 9 re: 45 Notice (Other), Notice (Other), Notice (Other), Notice (Other) filed by United States of America (Attachments: # 1 Appendix 9 Jefferson Commons TTU Part 1 of 3, # 2 Appendix 9 Jefferson

Case: 3:09-cv-412 As of: 02/17/2016 10:32 PM CST 13 of 36

05/12/2010 05/18/2010
05/18/2010
05/19/2010 05/19/2010 05/20/2010
05/24/2010
05/24/2010 05/26/2010 05/27/2010
05/27/2010 05/27/2010

Commons TTU Part 2 of 3, # 3 Appendix 9 Jefferson Commons TTU Part 3 of 3) (Borshansky, Neta) (Entered: 05/12/2010)
77 Notice of Manual Filing of Compact Disc in Support of Expert Testimony by United States of America re 76 Notice (Other), Notice (Other) Photographs of Jefferson Commons TTU (Borshansky, Neta) (Entered: 05/12/2010)
78 NOTICE of Disclosure of Expert Testimony re: 35 Scheduling Order, filed by Apartment Community Realty LLC, JPI Apartment Development LP, JPI Construction LP, Jefferson Bend LP, Jefferson Lake Creek LP, Lifestyle Apartment Development Service LLC, Multifamily Construction LLC (Attachments: # 1 Exhibit A (Expert Report of Alison Vredenburgh), # 2 Appendix 1 (Riverchase Apartments Report)) (Calkins, Lynn) (Entered: 05/18/2010)
79 NOTICE of Disclosure of Expert Testimony re: 35 Scheduling Order, filed by Apartment Community Realty LLC, JPI Apartment Development LP, JPI Construction LP, Jefferson Bend LP, Jefferson Lake Creek LP, Lifestyle Apartment Development Service LLC, Multifamily Construction LLC (Attachments: # 1 Exhibit A (Expert Report of Mark Wales), # 2 Appendix 1 (Wales Curriculum Vitae), # 3 Appendix 2 (Riverchase Apartments Report)) (Petersen, Rafe) (Entered: 05/18/2010)
80 NOTICE of Submission of Report of Inspection to Supplement Expert Report filed by United States of America (Attachments: # 1 Report of Inspection of Virginia State University) (McAllister, Jennifer) Modified on 5/20/2010 (skt). (Entered: 05/19/2010)
81 Notice of Manual Filing of Notice by United States of America re 80 Notice (Other) of Submission of Compact Disc in Support of Expert Testimony (McAllister, Jennifer) (Entered: 05/19/2010)
82 NOTICE of Supplement to Expert Report re: 78 Notice (Other), Notice (Other) filed by Apartment Community Realty LLC, JPI Apartment Development LP, JPI Construction LP, Jefferson Bend LP, Jefferson Lake Creek LP, Lifestyle Apartment Development Service LLC, Multifamily Construction LLC (Attachments: # 1 Exhibit A.1 (Curriculum Vitae of Alison Vredenburgh, Ph.D.)) (Calkins, Lynn) (Entered: 05/20/2010)
83 NOTICE of Submission of Appendix D to Supplement Expert Report re: 60 Notice (Other), Notice (Other) filed by United States of America (Attachments: # 1 Appendix D − 903 Providence Place Detailed Report Introduction, # 2 Appendix D − 903 Providence Place Detailed Report, Section 1, # 3 Appendix D − 903 Providence Place Detailed Report, Section 2, # 4 Appendix D − 903 Providence Place Detailed Report, Section 3) (Barron, Pamela) (Entered: 05/24/2010)
84 Notice of Manual Filing of Compact Disk in Support of Expert Testimony by United States of America re 83 Notice (Other), Notice (Other) Submission of Compact Disk in Support of Appendix D (Barron, Pamela) (Entered: 05/24/2010)
85 NOTICE of Receipt of of Compact Disks in Support of Expert Testimony by United States of America re 83 Notice. (Two compact disks placed in file, see Records Department.) (twd) (Entered: 05/26/2010)
86 NOTICE of Disclosure of Expert Testimony re: 35 Scheduling Order, filed by Apartment Community Realty LLC, JPI Apartment Development LP, JPI Construction LP, Jefferson Bend LP, Jefferson Lake Creek LP, Lifestyle Apartment Development Service LLC, Multifamily Construction LLC (Attachments: # 1 Exhibit(s) Expert Report of Pete Skarzenski, # 2 Appendix 1 (Villas at Beaver Creek Report), # 3 Appendix 2 (Madison at Melrose Report)) (Petersen, Rafe) (Entered: 05/27/2010)
87 NOTICE of Disclosure of Expert Testimony filed by United States of America (Attachments: # 1 Appendix 10: Jefferson at Washington Crossing Detailed Report Part 1 of 2, # 2 Appendix 10: Jefferson at Washington Crossing Detailed Report Part 2 of 2) (Kijewski, Kevin) Modified on 5/28/2010 (skt). (Entered: 05/27/2010)
88 Notice of Manual Filing of Compact Disc (CD) by United States of America re 87 Notice (Other), Notice (Other) Photographs of Jefferson at Washington Crossing

Case: 3:09-cv-412 As of: 02/17/2016 10:32 PM CST 14 of 36

05/28/2010 06/01/2010 06/01/2010 06/02/2010
06/02/2010 06/03/2010
06/03/2010 06/04/2010
06/04/2010 06/04/2010 06/07/2010
06/07/2010 06/09/2010

(Appendix 10) (Kijewski, Kevin) (Entered: 05/27/2010)
89 NOTICE of Submission of CD in Support of Expert Testimony filed by United States of America (svc) (Entered: 06/01/2010)
90 NOTICE of Submission of Appendix G re: 55 of Disclosure of Expert Testimony filed by United States of America (Attachments: # 1 Jefferson on the Park Detailed Report) (Borshansky, Neta) (Entered: 06/01/2010)
91 Notice of Manual Filing of Compact Discs in Support of Expert Testimony by United States of America re 90 Notice (Other) Submission of Compact Discs in Support of Appendix G (Borshansky, Neta) (Entered: 06/01/2010)
92 NOTICE of Supplement to Expert Report re: 78 Notice (Other), Notice (Other) filed by Apartment Community Realty LLC, JPI Apartment Development LP, JPI Construction LP, Jefferson Bend LP, Jefferson Lake Creek LP, Lifestyle Apartment Development Service LLC, Multifamily Construction LLC (Attachments: # 1 Appendix 2 (Tintara at Canyon Creek, f/k/a Jefferson Lakes), # 2 Appendix 3 (Tintara at Canyon Creek, f/k/a Jefferson Canyon)) (Calkins, Lynn) (Entered: 06/02/2010)
95 Received CD labeled "Jefferson on the Park, June 26−29, 2002" filed by United States of America. (skt) (Entered: 06/04/2010)
93 NOTICE of Supplement to 79 Expert Report filed by Apartment Community Realty LLC, JPI Apartment Development LP, JPI Construction LP, Jefferson Bend LP, Jefferson Lake Creek LP, Lifestyle Apartment Development Service LLC, Multifamily Construction LLC (Attachments: # 1 Appendix 3 (Tintara at Canyon Creek, f/k/a Jefferson Lake), # 2 Appendix 4 (Tintara at Canyon Creek, f/k/a Jefferson Canyon)) (Petersen, Rafe) Modified on 6/4/2010 (skt). (Entered: 06/03/2010)
94 NOTICE of Attorney Appearance by Andrea K Steinacker on behalf of United States of America. (Steinacker, Andrea) (Entered: 06/03/2010)
96 Errata to Defendants' Appendix 3 to Notice of Supplement to Expert Report re: 93 Notice of Supplement to Expert Report filed by Apartment Community Realty LLC, JPI Apartment Development LP, JPI Construction LP, Jefferson Bend LP, Jefferson Lake Creek LP, Lifestyle Apartment Development Service LLC, Multifamily Construction LLC (Attachments: # 1 Appendix 3 (Tintara at Canyon Creek (f/k/a Jefferson Lakes)) (Petersen, Rafe) Modified on 6/7/2010 (axm). (Entered: 06/04/2010)
97 NOTICE of Disclosure of Expert Testimony Supplement to re: 45 Notice (Other), Notice (Other), Notice (Other), Notice (Other) filed by United States of America (Attachments: # 1 Appendix 11: Jefferson at Bellingham Detailed Report Part 1 of 2, # 2 Appendix 11: Jefferson at Bellingham Detailed Report Part 2 of 2) (Kijewski, Kevin) (Entered: 06/04/2010)
98 Notice of Manual Filing of Compact Disc by United States of America re 97 Notice (Other) Photographs of Jefferson at Bellingham (Appendix 11). (Kijewski, Kevin) Modified on 6/7/2010 (klm). (Entered: 06/04/2010)
99 NOTICE of Supplement to Expert Report filed by Apartment Community Realty LLC, JPI Apartment Development LP, JPI Construction LP, Jefferson Bend LP, Jefferson Lake Creek LP, Lifestyle Apartment Development Service LLC, Multifamily Construction LLC re: 79 Notice of Disclosure of Expert Testimony. (Attachments: # 1 Appendix 5 (Jefferson at University of Louisiana Monroe)) (Petersen, Rafe) Modified on 6/8/2010 (axm). (Entered: 06/07/2010)
100 Received CD labeled "Photos of Site Inspection at Jefferson at Bellingham" filed by Apartment Community Realty LLC, JPI Apartment Development LP, JPI Construction LP, Jefferson Bend LP, Jefferson Lake Creek LP, Lifestyle Apartment Development Service LLC, Multifamily Construction LLC. (axm) (Entered: 06/08/2010)
101 NOTICE of Disclosure of Expert Testimony re: 86 Notice (Other), Notice (Other) filed by Apartment Community Realty LLC, JPI Apartment Development LP, JPI

Case: 3:09-cv-412 As of: 02/17/2016 10:32 PM CST 15 of 36

06/11/2010
06/11/2010
06/14/2010 06/14/2010 06/14/2010 06/14/2010 06/14/2010
06/14/2010 06/21/2010
06/21/2010 06/23/2010

Construction LP, Jefferson Bend LP, Jefferson Lake Creek LP, Lifestyle Apartment Development Service LLC, Multifamily Construction LLC (Attachments: # 1 Appendix 3 (Report for Avondale on Preston, f/k/a Jefferson at Preston) (Petersen, Rafe) (Entered: 06/09/2010)
102 NOTICE of Disclosure of Expert Testimony filed by Apartment Community Realty LLC, JPI Apartment Development LP, JPI Construction LP, Jefferson Bend LP, Jefferson Lake Creek LP, Lifestyle Apartment Development Service LLC, Multifamily Construction LLC (Attachments: # 1 Exhibit(s) A (Expert Report of Paul Sheriff), # 2 Attachment 1 (Declaration of William Hecker, # 3 Appendix 1 (Curriculum Vitae of Paul Sheriff), # 4 Appendix 2 (Report on Legacy Pines Apartments (f/k/a Jefferson Pines)) (Petersen, Rafe) (Entered: 06/11/2010)
103 NOTICE of Manual Filing of DVD in Support of Expert Testimony re: 102 Notice of Disclosure of Expert Testimony filed by Apartment Community Realty LLC, JPI Apartment Development LP, JPI Construction LP, Jefferson Bend LP, Jefferson Lake Creek LP, Lifestyle Apartment Development Service LLC, Multifamily Construction LLC (Petersen, Rafe) Modified on 6/14/2010 (axm). (Entered: 06/11/2010)
104 NOTICE of Submission of Report of Inspection re: 47 NOTICE of Disclosure of Expert Testimony filed by United States of America (Attachments: # 1 Supplement Report of Inspection at Jefferson at Logan Circle) (Steinacker, Andrea) Modified on 6/15/2010 (mcr). (Entered: 06/14/2010)
105 Notice of Manual Filing of Compact Disc in Support of Expert Testimony by United States of America re 104 Notice (Other) Photos of Site Inspection of Jefferson at Logan Circle (Steinacker, Andrea) (Entered: 06/14/2010)
106 NOTICE of Submission of Appendix H re: 55 Notice (Other), Notice (Other) filed by United States of America (Attachments: # 1 Appendix H Jefferson at Pin Oak Village Accessibility Report) (Borshansky, Neta) (Entered: 06/14/2010)
107 Notice of Manual Filing of Compact Disc in Support of Expert Testimony by United States of America re 106 Notice (Other) Photos of Site Inspection at Jefferson at Pin Oak (Borshansky, Neta) (Entered: 06/14/2010)
108 NOTICE of Submission of Appendix E re: 50 Notice (Other), Notice (Other) filed by United States of America (Attachments: # 1 Appendix E Jefferson at Fair Oaks Detailed Report Introduction, # 2 Appendix E Jefferson at Fair Oaks Detailed Report Part 1, # 3 Appendix E Jefferson at Fair Oaks Detailed Report Part 2, # 4 Appendix E Jefferson at Fair Oaks Detailed Report Part 3) (Barron, Pamela) (Entered: 06/14/2010)
109 Notice of Manual Filing of Compact Disc in Support of Expert Testimony by United States of America re 108 Notice (Other), Notice (Other) Photographs of Site Inspection of Jefferson at Fair Oaks (Barron, Pamela) (Entered: 06/14/2010)
110 NOTICE of Disclosure of Expert Testimony re: 102 NOTICE of Disclosure of Expert Testimony filed by Apartment Community Realty LLC, JPI Apartment Development LP, JPI Construction LP, Jefferson Bend LP, Jefferson Lake Creek LP, Lifestyle Apartment Development Service LLC, Multifamily Construction LLC (Attachments: # 1 Appendix 3 (Jefferson at Mission Gate (Bend)) (Petersen, Rafe) (Entered: 06/21/2010)
111 NOTICE of Manual Filing of DVD in Support of Expert Testimony re: 110 Notice (Other), Notice (Other) filed by Apartment Community Realty LLC, JPI Apartment Development LP, JPI Construction LP, Jefferson Bend LP, Jefferson Lake Creek LP, Lifestyle Apartment Development Service LLC, Multifamily Construction LLC (Petersen, Rafe) (Entered: 06/21/2010)
112 NOTICE of Supplement to Expert Report re: 79 Notice of Disclosure of Expert Testimony filed by Apartment Community Realty LLC, JPI Apartment Development LP, JPI Construction LP, Jefferson Bend LP, Jefferson Lake Creek LP, Lifestyle Apartment Development Service LLC, Multifamily Construction LLC (Attachments: # 1 Appendix 6 ) (Petersen, Rafe) Modified on 6/24/2010 (axm). (Entered: 06/23/2010)

Case: 3:09-cv-412 As of: 02/17/2016 10:32 PM CST 16 of 36

06/24/2010
06/24/2010 06/25/2010 06/29/2010 06/30/2010 06/30/2010 07/09/2010
07/09/2010 07/12/2010 07/12/2010 07/12/2010

113 NOTICE of Disclosure of Expert Testimony re: 45 Notice (Other), Notice (Other), Notice (Other), Notice (Other) filed by United States of America (Attachments: # 1 Appendix 12: Jefferson at King Farm Detailed Report Part 1 of 4, # 2 Appendix 12: Jefferson at King Farm Detailed Report Part 2 of 4, # 3 Appendix 12: Jefferson at King Farm Detailed Report Part 3 of 4, # 4 Appendix 12: Jefferson at King Farm Detailed Report Part 4 of 4, # 5 Appendix 13: Jefferson at Congressional Village Detailed Report Part 1 of 2, # 6 Appendix 13: Jefferson at Congressional Village Detailed Report Part 2 of 2) (Kijewski, Kevin) (Entered: 06/24/2010)
114 Notice of Manual Filing of Compact Discs by United States of America re Photographs of Jefferson at King Farm (Appendix 12) and Photographs of Jefferson at Congressional Village (Appendix 13). (Kijewski, Kevin) Modified on 6/25/2010 (mfw). (Entered: 06/24/2010)
115 NOTICE of Supplement to Expert Report re: 79 Notice (Other), Notice (Other) filed by Apartment Community Realty LLC, JPI Apartment Development LP, JPI Construction LP, Jefferson Bend LP, Jefferson Lake Creek LP, Lifestyle Apartment Development Service LLC, Multifamily Construction LLC (Attachments: # 1 Appendix 7 (Dakota Hill at Valley Ranch (f/k/a Jefferson Hill)) (Petersen, Rafe) (Entered: 06/25/2010)
116 NOTICE of Supplemental Disclosure of Expert Testimony re: 86 Notice (Other), Notice (Other) filed by Apartment Community Realty LLC, JPI Apartment Development LP, JPI Construction LP, Jefferson Bend LP, Jefferson Lake Creek LP, Lifestyle Apartment Development Service LLC, Multifamily Construction LLC (Attachments: # 1 Appendix 4 (AMLI at Prestonwood Hills, f/k/a Jefferson at Prestonwod Hills)) (Petersen, Rafe) (Entered: 06/29/2010)
117 NOTICE of Supplemental Disclosure of Expert Testimony filed by Apartment Community Realty LLC, JPI Apartment Development LP, JPI Construction LP, Jefferson Bend LP, Jefferson Lake Creek LP, Lifestyle Apartment Development Service LLC re: 102 of Disclosure of Expert Testimony (Attachments: # 1 Appendix 4) (Petersen, Rafe) Modified on 7/1/2010 (axm). (Entered: 06/30/2010)
118 NOTICE of Manual Filing of DVD in Support of Expert Testimony re: 117 Notice (Other), Notice (Other) filed by Apartment Community Realty LLC, JPI Apartment Development LP, JPI Construction LP, Jefferson Bend LP, Jefferson Lake Creek LP, Lifestyle Apartment Development Service LLC, Multifamily Construction LLC (Petersen, Rafe) (Entered: 06/30/2010)
119 NOTICE of Disclosure of Expert Testimony by Gina Hilberry, AIA, re: 50 Notice (Other), Notice (Other) filed by United States of America (Attachments: # 1 Appendix F − Jefferson on the Parkway Report Part 1 of 5, # 2 Appendix F − Jefferson on the Parkway Report Part 2 of 5, # 3 Appendix F − Jefferson on the Parkway Report Part 3 of 5, # 4 Appendix F − Jefferson on the Parkway Report Part 4 of 5, # 5 Appendix F − Jefferson on the Parkway Report Part 5 of 5) (Kijewski, Kevin) (Entered: 07/09/2010)
120 Notice of Manual Filing of Two Compact Discs by United States of America re 119 Notice (Other), Notice (Other) in Support of Expert Testimony by Gina Hilberry, AIA, Photographs of Jefferson on the Parkway (Kijewski, Kevin) (Entered: 07/09/2010)
121 NOTICE of Submission of Expert Report re: 47 Notice (Other), Notice (Other) filed by United States of America (Attachments: # 1 Part 1 of Report of Inspection of Jefferson at Sullivan Place, # 2 Part 2 of Report of Inspection of Jefferson at Sullivan Place) (Steinacker, Andrea) (Entered: 07/12/2010)
122 Notice of Manual Filing of Compact Disc in Support of Expert Testimony by United States of America re 121 Notice (Other), Notice (Other) Photos of Site Inspection of Jefferson at Sullivan Place (Steinacker, Andrea) (Entered: 07/12/2010)
123 NOTICE of Supplemental Disclosure of Expert Testimony filed by Apartment Community Realty LLC, JPI Apartment Development LP, JPI Construction LP, Jefferson Bend LP, Jefferson Lake Creek LP, Lifestyle Apartment Development Service LLC, Multifamily Construction LLC (Attachments: # 1 Appendix 5 (Jefferson Art's District)) (Petersen, Rafe) Modified on 7/13/2010 (skt). (Entered:

Case: 3:09-cv-412 As of: 02/17/2016 10:32 PM CST 17 of 36

07/12/2010 07/12/2010 07/13/2010 07/13/2010 07/14/2010 07/14/2010 07/19/2010 07/22/2010
07/22/2010 07/22/2010 07/22/2010

07/12/2010)
124 Amended NOTICE of Supplemental Disclosure of Expert Testimony filed by Apartment Community Realty LLC, JPI Apartment Development LP, JPI Construction LP, Jefferson Bend LP, Jefferson Lake Creek LP, Lifestyle Apartment Development Service LLC, Multifamily Construction LLC (Attachments: # 1 Appendix 5 (Art's District)) (Petersen, Rafe) Modified on 7/13/2010 (skt). (Entered: 07/12/2010)
125 NOTICE of Manual Filing of DVD in Support of Expert Testimony re: 124 Amended Notice of Supplemental Disclosure of Expert Testimony filed by Apartment Community Realty LLC, JPI Apartment Development LP, JPI Construction LP, Jefferson Bend LP, Jefferson Lake Creek LP, Lifestyle Apartment Development Service LLC, Multifamily Construction LLC (Petersen, Rafe) (Entered: 07/12/2010)
126 NOTICE of Supplement to Expert Report re: 79 Notice (Other), Notice (Other) filed by Apartment Community Realty LLC, JPI Apartment Development LP, JPI Construction LP, Jefferson Bend LP, Jefferson Lake Creek LP, Lifestyle Apartment Development Service LLC, Multifamily Construction LLC (Attachments: # 1 Appendix 8 (Jefferson Commons−TTU)) (Petersen, Rafe) (Entered: 07/13/2010)
127 NOTICE of Supplement to Expert Report re: 86 Notice (Other), Notice (Other) filed by Apartment Community Realty LLC, JPI Apartment Development LP, JPI Construction LP, Jefferson Bend LP, Jefferson Lake Creek LP, Lifestyle Apartment Development Service LLC, Multifamily Construction LLC (Attachments: # 1 Appendix 5 (AMLI on Frankford − f/k/a Jefferson at Frankford)) (Petersen, Rafe) (Entered: 07/13/2010)
128 Received CDs labeled "Photos of Site Inspection at Jefferson at Sullivan Place − Alexandria" re: 122 Notice of Manual Filing filed by United States of America. (mcr) (Entered: 07/15/2010)
129 Received CD labeled "Jefferson on the Parkway 1 of 2" and a CD labeled "Jefferson on the Parkway 2 of 2" re: 120 Notice of Manual Filing filed by United States of America. (mcr) (Entered: 07/15/2010)
130 NOTICE of Supplement to Expert Report filed by Apartment Community Realty LLC, JPI Apartment Development LP, JPI Construction LP, Jefferson Bend LP, Jefferson Lake Creek LP, Lifestyle Apartment Development Service LLC, Multifamily Construction LLC. (jrb) (Entered: 07/21/2010)
131 NOTICE of Disclosure of Expert Testimony re: 55 Notice (Other), Notice (Other) filed by United States of America (Attachments: # 1 Appendix I − Accessibility Survey Report of Jefferson at Coral Square. Part 1, # 2 Appendix I − Accessibility Survey Report of Jefferson at Coral Square. Part 2, # 3 Appendix I − Accessibility Survey Report of Jefferson at Coral Square. Part 3, # 4 Appendix I − Accessibility Survey Report of Jefferson at Coral Square. Part 4, # 5 Appendix I − Accessibility Survey Report of Jefferson at Coral Square. Part 5) (Borshansky, Neta) (Entered: 07/22/2010)
132 Notice of Manual Filing of CD in Support of Expert Testimony by United States of America re 131 Notice (Other), Notice (Other), Notice (Other) Photographs of Jefferson at Coral Square (Appendix I) (Borshansky, Neta) (Entered: 07/22/2010)
133 NOTICE of Supplemental Disclosure of Expert Testimony re: 102 Notice (Other), Notice (Other), Notice (Other) filed by Apartment Community Realty LLC, JPI Apartment Development LP, JPI Construction LP, Jefferson Bend LP, Jefferson Lake Creek LP, Lifestyle Apartment Development Service LLC, Multifamily Construction LLC (Attachments: # 1 Appendix 6 (903 Providence Place, fka Providence Place)) (Petersen, Rafe) (Entered: 07/22/2010)
134 NOTICE of Manual Filing of DVD in Support of Expert Testimony re: 133 Notice (Other), Notice (Other) filed by Apartment Community Realty LLC, JPI Apartment Development LP, JPI Construction LP, Jefferson Bend LP, Jefferson Lake Creek LP, Lifestyle Apartment Development Service LLC, Multifamily Construction

Case: 3:09-cv-412 As of: 02/17/2016 10:32 PM CST 18 of 36

07/27/2010
07/27/2010 08/02/2010
08/02/2010
08/02/2010 08/02/2010 08/02/2010 08/02/2010 08/02/2010
08/02/2010 08/03/2010
08/03/2010

LLC (Petersen, Rafe) (Entered: 07/22/2010)
135 NOTICE of Supplemental Disclosure of Expert Testimony re: 102 Notice (Other) filed by Apartment Community Realty LLC, JPI Apartment Development LP, JPI Construction LP, Jefferson Bend LP, Jefferson Lake Creek LP, Lifestyle Apartment Development Service LLC, Multifamily Construction LLC (Attachments: # 1 Appendix 7 Jefferson at Washington) (Petersen, Rafe) (Entered: 07/27/2010)
136 Notice of Manual Filing of DVD in Support of Expert Testimony by Apartment Community Realty LLC, JPI Apartment Development LP, JPI Construction LP, Jefferson Bend LP, Jefferson Lake Creek LP, Lifestyle Apartment Development Service LLC, Multifamily Construction LLC re 135 Notice (Other), Notice (Other) (Petersen, Rafe) (Entered: 07/27/2010)
137 NOTICE of Supplemental Disclosure of Expert Testimony re: 102 Notice of Disclosure of Expert Testimony filed by Apartment Community Realty LLC, JPI Apartment Development LP, JPI Construction LP, Jefferson Bend LP, Jefferson Lake Creek LP, Lifestyle Apartment Development Service LLC, Multifamily Construction LLC (Attachments: # 1 Appendix 8 (Jefferson Park aka Den Rock)) (Petersen, Rafe) (Entered: 08/02/2010)
138 NOTICE of Manual Filing of DVD in Support of Expert Testimony re: 137 NOTICE of Supplemental Disclosure of Expert Testimony filed by Apartment Community Realty LLC, JPI Apartment Development LP, JPI Construction LP, Jefferson Bend LP, Jefferson Lake Creek LP, Lifestyle Apartment Development Service LLC, Multifamily Construction LLC (Petersen, Rafe) . (Entered: 08/02/2010)
139 Designation of Experts by United States of America. (Attachments: # 1 Expert Report Prepared by Lisa I. Iezzoni, MD, MSc) (Borshansky, Neta) (Entered: 08/02/2010)
140 Designation of Experts by United States of America. (Attachments: # 1 Expert Report Prepared by Bruce Bradtmiller, Ph.D.) (Borshansky, Neta) (Entered: 08/02/2010)
141 NOTICE of Disclosure of Expert Testimony re: 45 Notice (Other), Notice (Other), Notice (Other), Notice (Other) filed by United States of America (Attachments: # 1 Expert Report Prepared by John H. Catlin, FAIA, Douglas A. Mohnke, AIA, Douglas J. Anderson, Assoc. AIA, and John Ritzu, R.A., from LCM Architects, LLC) (Borshansky, Neta) (Entered: 08/02/2010)
142 NOTICE of Disclosure of Expert Testimony re: 47 Notice (Other), Notice (Other) filed by United States of America (Attachments: # 1 Expert Report Prepared by Ken Schoonover, P.E.) (Borshansky, Neta) (Entered: 08/02/2010)
143 NOTICE of Defendants' Supplemental Preliminary Expert Disclosure Statement filed by Apartment Community Realty LLC, JPI Apartment Development LP, JPI Construction LP, Jefferson Bend LP, Jefferson Lake Creek LP, Lifestyle Apartment Development Service LLC, Multifamily Construction LLC (Attachments: # 1 Exhibit(s) A (Kadane CV), # 2 Exhibit(s) B (Dusenberry CV)) (Calkins, Lynn) (Entered: 08/02/2010)
144 NOTICE of Disclosure of Expert Testimony re: 50 Notice (Other), Notice (Other) filed by United States of America (Attachments: # 1 Expert Report Prepared by Gina Hilberry AIA) (Borshansky, Neta) (Entered: 08/02/2010)
145 NOTICE of Supplemental Disclosure of Expert Testimony re: 102 Notice (Other), Notice (Other), Notice (Other) filed by Apartment Community Realty LLC, JPI Apartment Development LP, JPI Construction LP, Jefferson Bend LP, Jefferson Lake Creek LP, Lifestyle Apartment Development Service LLC, Multifamily Construction LLC (Attachments: # 1 Appendix 9 (Bellingham)) (Petersen, Rafe) (Entered: 08/03/2010)
146 NOTICE of Manual Filing of DVD in Support of Expert Testimony re: 145 Notice (Other), Notice (Other) filed by Apartment Community Realty LLC, JPI Apartment Development LP, JPI Construction LP, Jefferson Bend LP, Jefferson Lake Creek

Case: 3:09-cv-412 As of: 02/17/2016 10:32 PM CST 19 of 36

08/11/2010 08/11/2010 08/12/2010 08/12/2010 08/17/2010 08/25/2010 08/25/2010 08/26/2010 08/26/2010 08/31/2010

LP, Lifestyle Apartment Development Service LLC, Multifamily Construction LLC (Petersen, Rafe) (Entered: 08/03/2010)
147 NOTICE of Supplemental Disclosure of Expert Testimony filed by Apartment Community Realty LLC, JPI Apartment Development LP, JPI Construction LP, Jefferson Bend LP, Jefferson Lake Creek LP, Lifestyle Apartment Development Service LLC, Multifamily Construction LLC (Attachments: # 1 Appendix 10 (Jefferson at Thomas Circle (f/k/a Jefferson at Logan Circle)) (Petersen, Rafe) Modified on 8/12/2010 (skt). (Entered: 08/11/2010)
148 NOTICE of Manual Filing of DVD in Support of Expert Testimony filed by Apartment Community Realty LLC, JPI Apartment Development LP, JPI Construction LP, Jefferson Bend LP, Jefferson Lake Creek LP, Lifestyle Apartment Development Service LLC, Multifamily Construction LLC (Petersen, Rafe) Modified on 8/12/2010 (skt). (Entered: 08/11/2010)
149 NOTICE of Supplemental Disclosure of Expert Testimony filed by Apartment Community Realty LLC, JPI Apartment Development LP, JPI Construction LP, Jefferson Bend LP, Jefferson Lake Creek LP, Lifestyle Apartment Development Service LLC, Multifamily Construction LLC (Attachments: # 1 Appendix 11 (Jefferson at Fair Oaks)) (Petersen, Rafe) Modified on 8/13/2010 (skt). (Entered: 08/12/2010)
150 Notice of Manual Filing of DVD in Support of Expert Testimony by Apartment Community Realty LLC, JPI Apartment Development LP, JPI Construction LP, Jefferson Bend LP, Jefferson Lake Creek LP, Lifestyle Apartment Development Service LLC, Multifamily Construction LLC . (Petersen, Rafe) Modified on 8/13/2010 (skt). (Entered: 08/12/2010)
151 NOTICE of Supplement to Expert Report re: 79 Notice (Other), Notice (Other) filed by Apartment Community Realty LLC, JPI Apartment Development LP, JPI Construction LP, Jefferson Bend LP, Jefferson Lake Creek LP, Lifestyle Apartment Development Service LLC, Multifamily Construction LLC (Attachments: # 1 Appendix 9 (Report for Meridian (f/k/a Jefferson at Pin Oak)) (Petersen, Rafe) (Entered: 08/17/2010)
152 NOTICE of Supplemental Disclosure of Expert Testimony re: 102 NOTICE of Disclosure of Expert Testimony filed by Apartment Community Realty LLC, JPI Apartment Development LP, JPI Construction LP, Jefferson Bend LP, Jefferson Lake Creek LP, Lifestyle Apartment Development Service LLC, Multifamily Construction LLC (Attachments: # 1 Appendix 12 (Jefferson at King Farm)) (Petersen, Rafe) (Entered: 08/25/2010)
153 Notice of Manual Filing of DVD in Support of Expert Testimony by Apartment Community Realty LLC, JPI Apartment Development LP, JPI Construction LP, Jefferson Bend LP, Jefferson Lake Creek LP, Lifestyle Apartment Development Service LLC, Multifamily Construction LLC re 152 Notice (Other), Notice (Other) (Petersen, Rafe) (Entered: 08/25/2010)
154 NOTICE of Supplementl Disclosure of Expert Testimony re: 35 Scheduling Order, filed by Apartment Community Realty LLC, JPI Apartment Development LP, JPI Construction LP, Jefferson Bend LP, Jefferson Lake Creek LP, Lifestyle Apartment Development Service LLC, Multifamily Construction LLC (Attachments: # 1 Appendix 13 (Congressional Village)) (Petersen, Rafe) (Entered: 08/26/2010)
155 Notice of Manual Filing of DVD's by Apartment Community Realty LLC, JPI Apartment Development LP, JPI Construction LP, Jefferson Bend LP, Jefferson Lake Creek LP, Lifestyle Apartment Development Service LLC, Multifamily Construction LLC re 154 Notice (Other), Notice (Other) (Petersen, Rafe) (Entered: 08/26/2010)
156 NOTICE of Disclosure of Expert Testimony re: 55 Notice (Other), Notice (Other) filed by United States of America (Attachments: # 1 Appendix J Survey Report Jefferson Summit (Maitland)) (Barron, Pamela) (Entered: 08/31/2010)

Case: 3:09-cv-412 As of: 02/17/2016 10:32 PM CST 20 of 36

08/31/2010 09/01/2010 09/08/2010 09/09/2010 09/09/2010 09/23/2010 09/27/2010 09/27/2010 09/27/2010 10/04/2010
10/04/2010 10/04/2010

157 Notice of Manual Filing of Compact Disc by United States of America re 156 Notice (Other) Photographs of Jefferson Summit (Maitland) (Barron, Pamela) (Entered: 08/31/2010)
158 NOTICE of Submission of Compact Disc (CD) re: 157 Notice of Manual Filing filed by United States of America. (CD under separate cover, see records department) (axm) (Entered: 09/03/2010)
159 NOTICE of Supplement to Expert Report re: 79 NOTICE of Disclosure of Expert Testimony filed by Apartment Community Realty LLC, JPI Apartment Development LP, JPI Construction LP, Jefferson Bend LP, Jefferson Lake Creek LP, Lifestyle Apartment Development Service LLC, Multifamily Construction LLC (Attachments: # 1 Appendix 10 (Report for Village on the Parkway (f/k/a Jefferson on the Parkway)) (Petersen, Rafe) (Entered: 09/08/2010)
160 NOTICE of Supplemental Disclosure of Expert Testimony re: 102 NOTICE of Disclosure of Expert Testimony filed by Apartment Community Realty LLC, JPI Apartment Development LP, JPI Construction LP, Jefferson Bend LP, Jefferson Lake Creek LP, Lifestyle Apartment Development Service LLC, Multifamily Construction LLC (Attachments: # 1 Appendix 14 (Report for Jefferson at Sullivan's Place (Edsall Road)) (Petersen, Rafe) (Entered: 09/09/2010)
161 Notice of Manual Filing of DVD in Support of Expert Testimony by Apartment Community Realty LLC, JPI Apartment Development LP, JPI Construction LP, Jefferson Bend LP, Jefferson Lake Creek LP, Lifestyle Apartment Development Service LLC, Multifamily Construction LLC re 160 NOTICE of Supplemental Disclosure of Expert Testimony (Petersen, Rafe) (Entered: 09/09/2010)
162 NOTICE of Supplement to Expert Report re: 79 Notice (Other), Notice (Other) filed by Apartment Community Realty LLC, JPI Apartment Development LP, JPI Construction LP, Jefferson Bend LP, Jefferson Lake Creek LP, Lifestyle Apartment Development Service LLC, Multifamily Construction LLC (Attachments: # 1 Appendix 11 (Jefferson at Coral Springs)) (Petersen, Rafe) (Entered: 09/23/2010)
163 NOTICE of Disclosure of Expert Testimony Supplement re: 55 Notice (Other), Notice (Other) filed by United States of America (Attachments: # 1 Appendix K: Jefferson at Morgan Falls Detailed Report. Part 1, # 2 Appendix K: Jefferson at Morgan Falls Detailed Report. Part 2) (Borshansky, Neta) (Entered: 09/27/2010)
164 Notice of Manual Filing of Compact Disc by United States of America re 163 Notice (Other), Notice (Other) Photographs of Jefferson at Morgan Falls (Appendix K) (Borshansky, Neta) (Entered: 09/27/2010)
165 NOTICE of Submission of Compact Disc (CD) re: 164 Notice of Manual Filing filed by United States of America. (skt) (Main Document 165 replaced on 10/4/2010) (skt). (Entered: 10/04/2010)
166 NOTICE of Disclosure of Expert Rebuttal Testimony filed by Apartment Community Realty LLC, JPI Apartment Development LP, JPI Construction LP, Jefferson Bend LP, Jefferson Lake Creek LP, Lifestyle Apartment Development Service LLC, Multifamily Construction LLC (Attachments: # 1 Exhibit(s) 2−A (Skarzenski, Part 1 of 4), # 2 Exhibit(s) 2−B (Skarzenski, Part 2 of 4), # 3 Exhibit(s) 2−C (Skarzenski, Part 3 of 4), # 4 Exhibit(s) 2−D (Skarzenski, Part 4 of 4), # 5 Exhibit(s) 3 (Wales), # 6 Exhibit(s) 4−A (Sheriff, Part 1 of 3), # 7 Exhibit(s) 4−B (Sheriff, Part 2 of 3), # 8 Exhibit(s) 4−C (Sheriff, Part 3 of 3) (Petersen, Rafe) (Entered: 10/04/2010)
167 ***DISREGARD PER ATTY, DOCUMENT HAS BEEN FILED. SEE DOC 168*** Notice of Manual Filing of Exhibit by Apartment Community Realty LLC, JPI Apartment Development LP, JPI Construction LP, Jefferson Bend LP, Jefferson Lake Creek LP, Lifestyle Apartment Development Service LLC, Multifamily Construction LLC re 166 Notice of Disclosure of Expert Rebuttal Testimony. (Petersen, Rafe) Modified on 10/5/2010 (axm). (Entered: 10/04/2010)
168 NOTICE of Disclosure of Expert Rebuttal Testimony filed by Apartment Community Realty LLC, JPI Apartment Development LP, JPI Construction LP, Jefferson Bend LP, Jefferson Lake Creek LP, Lifestyle Apartment Development

Case: 3:09-cv-412 As of: 02/17/2016 10:32 PM CST 21 of 36

10/12/2010 10/12/2010 10/14/2010 10/14/2010 10/14/2010 10/14/2010 10/18/2010 10/18/2010 10/18/2010 10/29/2010
11/15/2010 11/15/2010 11/16/2010

Service LLC, Multifamily Construction LLC (Attachments: # 1 Exhibit(s) 1 (Vredenburgh)) (Petersen, Rafe) (Entered: 10/04/2010)
169 NOTICE of Submission of Appendix 14 re: 45 Notice of Disclosure of Expert Testimony filed by United States of America (Attachments: # 1 Part 1A of 4, # 2 Part 1B of 4, # 3 Part 2A of 4, # 4 Part 2B of 4, # 5 Part 3A of 4, # 6 Part 3B of 4, # 7 Part 4 of 4) (Kijewski, Kevin) Modified on 10/13/2010 (axm). (Entered: 10/12/2010)
170 Notice of Manual Filing of Submission of Compact Disc (CD) in Support of Expert Testimony by United States of America re 169 Notice of Submission of Appendix 14. Photographs of Jefferson on the River (Kijewski, Kevin) (Entered: 10/12/2010)
171 NOTICE of Submission of Supplement Appendix G City Gate to Expert Report of Gina Hilberry, AIA, re: 50 Notice of Disclosure of Expert Testimony filed by United States of America. (Attachments: # 1 Appendix G − City Gate − Intro, # 2 Appendix G − City Gate − Section 1, # 3 Appendix G − City Gate − Section 2, # 4 Appendix G − City Gate − Section 3) (Kijewski, Kevin) . (Entered: 10/14/2010)
172 Notice of Manual Filing of Compact Discs (CDS) of Photographs of Jefferson at City Gate in Support of Expert Testimony of Gina Hilberry, AIA, by United States of America re 171 Notice of Submission of Supplement Appendix G. (Kijewski, Kevin) Modified on 10/15/2010 (axm). (Entered: 10/14/2010)
173 NOTICE of Submission of Supplement Appendix 15 Jefferson Farms Detailed Report to Expert Report of John H. Catlin and Douglas A. Mohnke re: 45 of Disclosure of Expert Testimony filed by United States of America (Attachments: # 1 Part 1 of 5, # 2 Part 2 of 5, # 3 Part 3 of 5, # 4 Part 4 of 5, # 5 Part 5 of 5) (Kijewski, Kevin) (Entered: 10/14/2010)
174 Notice of Manual Filing of Compact Disc (CD)of Photographs of Jefferson Farms in Support of Expert Testimony of John H. Catlin and Douglas A. Mohnke by United States of America re 173 Notice of Submission of Supplement Appendix 15. (Kijewski, Kevin) Modified on 10/15/2010 (axm). (Entered: 10/14/2010)
175 Received CD labeled Photographs of Jefferson on the River re: 170 Notice of Manual Filing filed by United States of America. (USC, see Records for document.) (twd) (Entered: 10/19/2010)
176 Received CD labeled Photographs of Jefferson at City Gate re: 172 Notice of Manual Filing filed by United States of America. (USC, see Records for document.) (twd) (Entered: 10/19/2010)
177 Received CD labeled Photos of Site Inspection at Jefferson Farms re: 174 Notice of Manual Filing filed by United States of America. (USC, see Records for document.) (twd) (Entered: 10/19/2010)
178 NOTICE of Supplemental Expert Report re: 79 Notice (Other), Notice (Other) filed by Apartment Community Realty LLC, JPI Apartment Development LP, JPI Construction LP, Jefferson Bend LP, Jefferson Lake Creek LP, Lifestyle Apartment Development Service LLC, Multifamily Construction LLC (Attachments: # 1 Appendix 12 (Summit at Maitland aka Estates at Maitland Summit)) (Petersen, Rafe) (Entered: 10/29/2010)
179 NOTICE of Disclosure of Expert Testimony (Hilberry) re: 50 Notice (Other), Notice (Other) filed by United States of America (Attachments: # 1 Appendix H: Jefferson at Fox Hollow (Part 1), # 2 Appendix H: Jefferson at Fox Hollow (Part 2), # 3 Appendix H: Jefferson at Fox Hollow (Part 3), # 4 Appendix H: Jefferson at Fox Hollow (Part 4)) (Borshansky, Neta) (Entered: 11/15/2010)
180 Notice of Manual Filing of Compact Discs in Support of Expert Testimony by United States of America re 179 Notice (Other), Notice (Other) Photographs of Jefferson at Fox Hollow (Borshansky, Neta) (Entered: 11/15/2010)
181 NOTICE of Submission of Compact Disc filed by United States of America. (mfw) (Entered: 11/16/2010)

Case: 3:09-cv-412 As of: 02/17/2016 10:32 PM CST 22 of 36

11/16/2010 11/17/2010
11/17/2010 11/23/2010 11/23/2010 11/24/2010 11/24/2010 11/24/2010 11/29/2010 11/30/2010 12/09/2010
12/10/2010

182 NOTICE of Corrected Disclosure of Expert Rebuttal Testimony filed by Apartment Community Realty LLC, JPI Apartment Development LP, JPI Construction LP, Jefferson Bend LP, Jefferson Lake Creek LP, Lifestyle Apartment Development Service LLC, Multifamily Construction LLC (Attachments: # 1 Exhibit(s) Vredenburgh Report) (Petersen, Rafe) (Entered: 11/16/2010)
183 NOTICE of Submission of Supplement Appendix 16 Jefferson at Emerald Park Detailed Report to Expert Report of John H. Catlin and Douglas A. Mohnke re: 45 Notice (Other), Notice (Other) filed by United States of America (Attachments: # 1 Appendix 16 − Jefferson at Emerald Park − Part 1 of 5, # 2 Appendix 16 − Jefferson at Emerald Park − Part 2 of 5, # 3 Appendix 16 − Jefferson at Emerald Park − Part 3 of 5, # 4 Appendix 16 − Jefferson at Emerald Park − Part 4 of 5, # 5 Appendix 16 − Jefferson at Emerald Park − Part 5 of 5) (McAllister, Jennifer) (Entered: 11/17/2010)
184 Notice of Manual Filing of Compact Disc (CD) by United States of America re 183 Notice (Other), Notice (Other), Notice (Other) Compact Disc (CD) of Photographs of Jefferson at Emerald Park (McAllister, Jennifer) (Entered: 11/17/2010)
185 NOTICE of Submission of Supplement Appendix 17 Jefferson on the Plaza Detailed Report to Expert Report of John H. Catlin and Douglas A. Mohnke re: 45 Notice (Other), Notice (Other) filed by United States of America (Attachments: # 1 Exhibit(s) Report Part 1 of 4, # 2 Exhibit(s) Report Part 2 of 4, # 3 Exhibit(s) Report Part 3 of 4, # 4 Exhibit(s) Report Part 4 of 4) (Steinacker, Andrea) (Entered: 11/23/2010)
186 Notice of Manual Filing of Compact Disc by United States of America re 185 Notice (Other), Notice (Other) Photographs of Jefferson on the Plaza (Steinacker, Andrea) (Entered: 11/23/2010)
187 NOTICE of Submission of Report of Inspection to Supplement Expert Report of Ken Schoonover, P.E. re: 47 Notice (Other), Notice (Other) filed by United States of America (Attachments: # 1 Supplement Report of Inspection of Young Circle, # 2 Supplement Report of Inspection of Jefferson Marymoor) (McAllister, Jennifer) (Entered: 11/24/2010)
188 Notice of Manual Filing of Compact Disc (CD) by United States of America re 187 Notice (Other), Notice (Other) (McAllister, Jennifer) (Entered: 11/24/2010)
189 Compact Disk as to "Jefferson on the Plaza" re: 188 Notice of Manual Filing, 187 NOTICE of Submission of Report of Inspection to Supplement Expert Report of Ken Schoonover, P.E., filed by United States of America. (CD under separate cover) (dnc) Modified on 11/29/2010 (twd). (Entered: 11/29/2010)
190 Compact Disk as to "Jefferson at Young Circle" and "Jefferson at Marymoor" re: 188 Notice of Manual Filing, 187 NOTICE of Submission of Report of Inspection to Supplement Expert Report of Ken Schoonover, P.E., filed by United States of America. (CD under separate cover) (twd) (Entered: 11/29/2010)
191 NOTICE of Supplement to Expert Report re: 79 Notice (Other) filed by Apartment Community Realty LLC, JPI Apartment Development LP, JPI Construction LP, Jefferson Bend LP, Jefferson Lake Creek LP, Lifestyle Apartment Development Service LLC, Multifamily Construction LLC (Attachments: # 1 Detailed Report Part 1 of 2, Appendix 13: Jefferson at Morgan Falls, # 2 Detailed Report Part 2 of 2, Appendix 13: Jefferson at Morgan Falls) (Petersen, Rafe) (Entered: 11/30/2010)
192 NOTICE of Supplement of Expert Report of Mark Wales re: 79 Notice (Other), Notice (Other) filed by Apartment Community Realty LLC, JPI Apartment Development LP, JPI Construction LP, Jefferson Bend LP, Jefferson Lake Creek LP, Lifestyle Apartment Development Service LLC, Multifamily Construction LLC (Attachments: # 1 Appendix 14 (Part 1 of 4, Report for Jefferson on the River), # 2 Appendix 14 (Part 2 of 4, Report for Jefferson on the River), # 3 Appendix 14 (Part 3 of 4, Report for Jefferson on the River), # 4 Appendix 14 (Part 4 of 4, Report for Jefferson on the River)) (Petersen, Rafe) (Entered: 12/09/2010)
193 NOTICE of Submission of Expert Report of Ken Schoonover re: 47 Notice (Other), Notice (Other) filed by United States of America (Attachments: # 1 Exhibit(s) Rock Creek Report Part 1, # 2 Exhibit(s) Rock Creek Report Part 2, # 3 Exhibit(s)

Case: 3:09-cv-412 As of: 02/17/2016 10:32 PM CST 23 of 36

12/10/2010 12/10/2010
12/10/2010 12/13/2010 12/13/2010 12/14/2010 12/15/2010
12/15/2010 12/17/2010
12/17/2010 12/21/2010
01/12/2011

Rock Creek Report Part 3, # 4 Exhibit(s) Rock Creek Report Part 4) (Steinacker, Andrea) (Entered: 12/10/2010)
194 Notice of Manual Filing of Compact Disc in Support of Expert Testimony by United States of America re 193 NOTICE of Submission of Expert Report of Ken Schoonover. (Steinacker, Andrea) (Entered: 12/10/2010)
195 NOTICE of Submission of Expert Report of Gina Hilberry Appendix J re: 50 NOTICE of Disclosure of Expert Testimony filed by United States of America (Attachments: # 1 Exhibit(s) Aviara Report Introduction, # 2 Exhibit(s) Aviara Report Section 1 part 1, # 3 Exhibit(s) Aviara Report Section 1 part 2, # 4 Exhibit(s) Aviara Report Section 1 part 3, # 5 Exhibit(s) Aviara Report Section 1 part 4, # 6 Exhibit(s) Aviara Report Section 2, # 7 Exhibit(s) Aviara Report Section 3) (Steinacker, Andrea) (Entered: 12/10/2010)
196 Notice of Manual Filing of Compact Discs in Support of Expert Testimony by United States of America re 195 NOTICE of Submission of Expert Report of Gina Hilberry Appendix J Photos of Site Inspection of Jefferson at Aviara (Steinacker, Andrea) (Entered: 12/10/2010)
197 NOTICE of receipt of Compact Discs re: 196 Notice of Manual Filing, filed by United States of America. (dnc) (Entered: 12/14/2010)
198 NOTICE of receipt of Compact Discs re: 194 Notice of Manual Filing filed by United States of America. (dnc) (Entered: 12/14/2010)
199 NOTICE of Supplement to Expert Report re: 86 Notice (Other), filed by Apartment Community Realty LLC, JPI Apartment Development LP, JPI Construction LP, Jefferson Bend LP, Jefferson Lake Creek LP, Lifestyle Apartment Development Service LLC, Multifamily Construction LLC (Attachments: # 1 Appendix 7 (Jefferson (Alara) Farms)) (Petersen, Rafe) (Entered: 12/14/2010)
200 NOTICE of Supplemental Disclosure of Expert Testimony re: 102 Notice (Other), Notice (Other), Notice (Other) filed by Apartment Community Realty LLC, JPI Apartment Development LP, JPI Construction LP, Jefferson Bend LP, Jefferson Lake Creek LP, Lifestyle Apartment Development Service LLC, Multifamily Construction LLC (Attachments: # 1 Appendix 15 (Jefferson at City Gate)) (Petersen, Rafe) (Entered: 12/15/2010)
201 Notice of Manual Filing of DVD by Apartment Community Realty LLC, JPI Apartment Development LP, JPI Construction LP, Jefferson Bend LP, Jefferson Lake Creek LP, Lifestyle Apartment Development Service LLC, Multifamily Construction LLC re 200 Notice (Other), Notice (Other) (Petersen, Rafe) (Entered: 12/15/2010)
202 NOTICE of Filing of Appendix 18: Aspen Ridge to Supplement Expert Report of John Catlin and Douglas Mohnke filed by United States of America re: 45 Notice of Disclosure of Expert Testimony.(Attachments: # 1 Appendix 18 LCM Aspen Ridge Part 1 of 4, # 2 Appendix 18 LCM Aspen Ridge Part 2 of 4, # 3 Appendix 18 LCM Aspen Ridge Part 3 of 4, # 4 Appendix 18 LCM Aspen Ridge Part 4 of 4) (Kijewski, Kevin) (Entered: 12/17/2010)
203 Notice of Manual Filing of Disc of Photographs of Survey of Aspen Ridge to Supplement Appendix 18 Expert Report of John Catlin and Douglas Mohnke by United States of America re 202 Notice (Other), Notice (Other) Disc of Photographs Aspen Ridge (Kijewski, Kevin) (Entered: 12/17/2010)
204 NOTICE of Supplement to Expert Report re: 79 Notice (Other), Notice (Other) filed by Apartment Community Realty LLC, JPI Apartment Development LP, JPI Construction LP, Jefferson Bend LP, Jefferson Lake Creek LP, Lifestyle Apartment Development Service LLC, Multifamily Construction LLC (Attachments: # 1 Appendix 15 (Supplemental Report of Mark Wales' of Jefferson at Berry (Univ. of Minnesota II)) (Petersen, Rafe) (Entered: 12/21/2010)
205 NOTICE of Supplement of Expert Report of Mark Wales re: 79 Notice (Other), Notice (Other) filed by Apartment Community Realty LLC, JPI Apartment Development LP, JPI Construction LP, Jefferson Bend LP, Jefferson Lake Creek LP, Lifestyle Apartment Development Service LLC, Multifamily Construction

Case: 3:09-cv-412 As of: 02/17/2016 10:32 PM CST 24 of 36

01/12/2011 01/13/2011 01/24/2011 01/24/2011 01/26/2011 01/26/2011 01/27/2011 01/28/2011 01/28/2011 02/07/2011

LLC (Attachments: # 1 Appendix 16 (Report for Young Circle)) (Petersen, Rafe) (Entered: 01/12/2011)
206 NOTICE of Supplement to Expert Report of Alison Vredenburgh on Jefferson at Emerald Park re: 78 Notice (Other), Notice (Other) filed by Apartment Community Realty LLC, JPI Apartment Development LP, JPI Construction LP, Jefferson Bend LP, Jefferson Lake Creek LP, Lifestyle Apartment Development Service LLC, Multifamily Construction LLC (Attachments: # 1 Appendix 4, Part 1 of 2, # 2 Appendix 4, Part 2 of 2) (Petersen, Rafe) (Entered: 01/12/2011)
207 NOTICE of Supplement to Expert Report of Alison Vredenburgh on Jefferson at Aviara re: 78 Notice (Other), Notice (Other) filed by Apartment Community Realty LLC, JPI Apartment Development LP, JPI Construction LP, Jefferson Bend LP, Jefferson Lake Creek LP, Lifestyle Apartment Development Service LLC, Multifamily Construction LLC (Attachments: # 1 Appendix 5, Part 1 of 2, # 2 Appendix 5, Part 2 of 2) (Petersen, Rafe) (Entered: 01/13/2011)
208 NOTICE of Supplemental Disclosure of Expert Testimony of Paul Sheriff re: 102 Notice (Other), Notice (Other), Notice (Other) filed by Apartment Community Realty LLC, JPI Apartment Development LP, JPI Construction LP, Jefferson Bend LP, Jefferson Lake Creek LP, Lifestyle Apartment Development Service LLC, Multifamily Construction LLC (Attachments: # 1 Appendix 16 (Jefferson at Fox Hollow)) (Petersen, Rafe) (Entered: 01/24/2011)
209 Notice of Manual Filing of DVD by Apartment Community Realty LLC, JPI Apartment Development LP, JPI Construction LP, Jefferson Bend LP, Jefferson Lake Creek LP, Lifestyle Apartment Development Service LLC, Multifamily Construction LLC re 208 Notice (Other), Notice (Other) video of Fox Hollow examination (Petersen, Rafe) (Entered: 01/24/2011)
210 NOTICE of Supplement to Expert Report re: 79 Notice (Other), Notice (Other) filed by Apartment Community Realty LLC, JPI Apartment Development LP, JPI Construction LP, Jefferson Bend LP, Jefferson Lake Creek LP, Lifestyle Apartment Development Service LLC, Multifamily Construction LLC (Attachments: # 1 Appendix 16 (Supplemental Report of Mark Wales on Clark−Heritage Commons) (Petersen, Rafe) (Entered: 01/26/2011)
211 NOTICE of Supplement to Expert Report re: 79 Notice (Other), Notice (Other) filed by Apartment Community Realty LLC, JPI Apartment Development LP, JPI Construction LP, Jefferson Bend LP, Jefferson Lake Creek LP, Lifestyle Apartment Development Service LLC, Multifamily Construction LLC (Attachments: # 1 Appendix 17 (Supplemental Report of Mark Wales on Jefferson 2nd Ave.)) (Petersen, Rafe) (Entered: 01/26/2011)
212 NOTICE of Corrected Disclosure of Supplemental Expert Report of Mark Wales re: 79 Notice (Other), Notice (Other) filed by Apartment Community Realty LLC, JPI Apartment Development LP, JPI Construction LP, Jefferson Bend LP, Jefferson Lake Creek LP, Lifestyle Apartment Development Service LLC, Multifamily Construction LLC (Attachments: # 1 Appendix 18 (Report for Clark−Heritage Commons)) (Petersen, Rafe) (Entered: 01/27/2011)
213 NOTICE of Supplemental Disclosure of Expert Testimony of Paul Sheriff re: 102 Notice of Disclosure of Expert Testimony filed by Apartment Community Realty LLC, JPI Apartment Development LP, JPI Construction LP, Jefferson Bend LP, Jefferson Lake Creek LP, Lifestyle Apartment Development Service LLC, Multifamily Construction LLC (Attachments: # 1 Appendix 17 (Jefferson on the Plaza (aka Fountain View on the Plaza))) (Petersen, Rafe) (Entered: 01/28/2011)
214 Notice of Manual Filing of DVD by Apartment Community Realty LLC, JPI Apartment Development LP, JPI Construction LP, Jefferson Bend LP, Jefferson Lake Creek LP, Lifestyle Apartment Development Service LLC, Multifamily Construction LLC re 213 Notice of Supplemental Disclosure of Expert Testimony of Paul Sheriff. (Petersen, Rafe) (Entered: 01/28/2011)
215 NOTICE of Supplement Disclosure of Expert Testimony of Paul Sheriff re: 102 Notice of Disclosure of Expert Testimony filed by Apartment Community Realty LLC, JPI Apartment Development LP, JPI Construction LP, Jefferson Bend LP,

Case: 3:09-cv-412 As of: 02/17/2016 10:32 PM CST 25 of 36

02/07/2011 02/09/2011 02/11/2011 02/11/2011 02/11/2011
02/11/2011 02/11/2011 02/11/2011 02/17/2011

Jefferson Lake Creek LP, Lifestyle Apartment Development Service LLC, Multifamily Construction LLC (Attachments: # 1 Appendix 18 (Jefferson at Rock Creek (aka Saddlebrook at Rock Creek)) (Petersen, Rafe) (Entered: 02/07/2011)
216 Notice of Manual Filing of DVD by Apartment Community Realty LLC, JPI Apartment Development LP, JPI Construction LP, Jefferson Bend LP, Jefferson Lake Creek LP, Lifestyle Apartment Development Service LLC, Multifamily Construction LLC re 215 Notice (Other), Notice (Other) video of Jefferson at Rock Creek examination (Petersen, Rafe) (Entered: 02/07/2011)
217 NOTICE Defendants' Supplemental Expert Disclosure Statement re: 143 Notice (Other), Notice (Other), 42 Notice (Other), Notice (Other), 59 Supplemental Document, filed by Apartment Community Realty LLC, JPI Apartment Development LP, JPI Construction LP, Jefferson Bend LP, Jefferson Lake Creek LP, Lifestyle Apartment Development Service LLC, Multifamily Construction LLC (Petersen, Rafe) (Entered: 02/09/2011)
218 NOTICE of Supplemental Disclosure of Expert Testimony of Paul Sheriff re: 102 Notice (Other), Notice (Other), Notice (Other) filed by Apartment Community Realty LLC, JPI Apartment Development LP, JPI Construction LP, Jefferson Bend LP, Jefferson Lake Creek LP, Lifestyle Apartment Development Service LLC, Multifamily Construction LLC (Attachments: # 1 Appendix 19 (Jefferson at Aspen Rodge)) (Petersen, Rafe) (Entered: 02/11/2011)
219 Notice of Manual Filing of DVD by Apartment Community Realty LLC, JPI Apartment Development LP, JPI Construction LP, Jefferson Bend LP, Jefferson Lake Creek LP, Lifestyle Apartment Development Service LLC, Multifamily Construction LLC re 218 Notice (Other), Notice (Other) video of Jefferson at Aspen Ridge examination (Petersen, Rafe) (Entered: 02/11/2011)
220 NOTICE of Supplemental Disclosure of Expert Testimony of Paul Sheriff re: 102 Notice (Other), Notice (Other), Notice (Other) filed by Apartment Community Realty LLC, JPI Apartment Development LP, JPI Construction LP, Jefferson Bend LP, Jefferson Lake Creek LP, Lifestyle Apartment Development Service LLC, Multifamily Construction LLC (Attachments: # 1 Appendix 20 (Jefferson Center (aka Artisan Apartments), Jefferson Simi Valley, Jefferson Commons Fresno)) (Petersen, Rafe) (Entered: 02/11/2011)
221 Notice of Manual Filing of DVD by Apartment Community Realty LLC, JPI Apartment Development LP, JPI Construction LP, Jefferson Bend LP, Jefferson Lake Creek LP, Lifestyle Apartment Development Service LLC, Multifamily Construction LLC re 220 Notice (Other), Notice (Other) video of Jefferson Center (aka Artisan Apartments) (Petersen, Rafe) (Entered: 02/11/2011)
222 Notice of Manual Filing of DVD by Apartment Community Realty LLC, JPI Apartment Development LP, JPI Construction LP, Jefferson Bend LP, Jefferson Lake Creek LP, Lifestyle Apartment Development Service LLC, Multifamily Construction LLC re 220 Notice (Other), Notice (Other) video of Simi Valley examination (Petersen, Rafe) (Entered: 02/11/2011)
223 Notice of Manual Filing of DVD by Apartment Community Realty LLC, JPI Apartment Development LP, JPI Construction LP, Jefferson Bend LP, Jefferson Lake Creek LP, Lifestyle Apartment Development Service LLC, Multifamily Construction LLC re 220 Notice (Other), Notice (Other) Video of Jefferson Commons Fresno (Petersen, Rafe) (Entered: 02/11/2011)
224 Joint STATUS REPORT Regarding Defendants' Motion to Compel filed by Apartment Community Realty LLC, JPI Apartment Development LP, JPI Construction LP, Jefferson Bend LP, Jefferson Lake Creek LP, Lifestyle Apartment Development Service LLC, Multifamily Construction LLC, United States of America. (Attachments: # 1 Appendix, # 2 Exhibit(s), # 3 Exhibit(s), # 4 Exhibit(s), # 5 Exhibit(s), # 6 Exhibit(s), # 7 Exhibit(s), # 8 Exhibit(s), # 9 Exhibit(s), # 10 Exhibit(s), # 11 Exhibit(s), # 12 Exhibit(s), # 13 Exhibit(s), # 14 Exhibit(s), # 15 Exhibit(s), # 16 Exhibit(s), # 17 Exhibit(s), # 18 Exhibit(s), # 19 Exhibit(s)) (Calkins, Lynn) (Entered: 02/17/2011)

Case: 3:09-cv-412 As of: 02/17/2016 10:32 PM CST 26 of 36

02/18/2011
02/18/2011 02/25/2011 02/28/2011 03/08/2011 03/11/2011
03/11/2011 03/14/2011
03/18/2011 03/21/2011

225 Joint STATUS REPORT on United States' Motion to Strike Defendants' Experts as Untimely filed by Apartment Community Realty LLC, JPI Apartment Development LP, JPI Construction LP, Jefferson Bend LP, Jefferson Lake Creek LP, Lifestyle Apartment Development Service LLC, Multifamily Construction LLC, United States of America. (Attachments: # 1 Exhibit(s) Joint Appendix part 1, # 2 Exhibit(s) J.A. part 2, # 3 Exhibit(s) J.A. part 3, # 4 Exhibit(s) J.A. part 4, # 5 Exhibit(s) J.A. part 5, # 6 Exhibit(s) J.A. part 6) (Steinacker, Andrea) (Entered: 02/18/2011)
226 CERTIFICATE OF SERVICE by United States of America re 225 Status Report,, (Steinacker, Andrea) (Entered: 02/18/2011)
227 ORDER:Motion Hearing on deft's motion to compel full discovery, or to strike partial discovery responses regarding disabled residents is set for 3/11/2011 09:00 AM before Magistrate Judge Jeff Kaplan. (See order for specifics) (Ordered by Magistrate Judge Jeff Kaplan on 2/25/2011) (vdf) (Entered: 02/25/2011)
228 NOTICE of Substitution of Lead Counsel filed by Apartment Community Realty LLC, JPI Apartment Development LP, JPI Construction LP, Jefferson Bend LP, Jefferson Lake Creek LP, Lifestyle Apartment Development Service LLC, Multifamily Construction LLC (Calkins, Lynn) (Entered: 02/28/2011)
229 ORDER: The court determines that oral argument will materially aid in the disposition of the motion to strike deft's untimely designation of experts. Counsel should be prepared to argue this motion at the hearing on 3/11/2011 at 9:00 am. (Ordered by Magistrate Judge Jeff Kaplan on 3/8/2011) (vdf) (Entered: 03/08/2011)
ELECTRONIC Minute Entry for proceedings held before Magistrate Judge Jeff Kaplan: Motion Hearing held on 3/11/2011 as to Deft's motion to compel full discovery, or to strike partial discovery responses regarding disabled residents, and Pla's motion to strike deft's untimely designations of expert witnessess. Def's motion is denied w/out prejudice. Pla's motion is denied. Agreed order due on both motions by noon on 3/18/2011. Attorney Appearances: Plaintiff − Kevin Kijewski, Susan Ernst; Defense − Lynn Calkins, Lewis Sessions. (Court Reporter: Digital File) (No exhibits) Time in Court − :45. (vdf) (Entered: 03/11/2011)
230 ORDER: After conferring with the attorneys, the court hereby extends the deadline for filing dispositive motions. Plaintiff shall file a motion for summary judgment by by 4/15/2011. (Ordered by Magistrate Judge Jeff Kaplan on 3/11/2011) (vdf) (Entered: 03/11/2011)
231 NOTICE OF FILING OF OFFICIAL ELECTRONIC TRANSCRIPT of Defendant's Motion to Compel; Plaintiff's Motion to Strike Proceedings held on 03/11/2011 (39 pgs.) before Judge Jeff Kaplan. Court Reporter/Transcriber Kathy Rehling; kathy.rehling@tx.rr.com, Telephone number 972−304−1998. Parties are notified of their duty to review the transcript. A copy may be purchased from the court reporter or viewed at the clerk's office public terminal. If redaction is necessary, a Redaction Request − Transcript must be filed within 21 days. If no such Request is filed, the transcript will be made available via PACER without redaction after 90 calendar days. If redaction request filed, this transcript will not be accessible via PACER; see redacted transcript. The clerk will mail a copy of this notice to parties not electronically noticed. (39 pages). Redaction Request due 4/4/2011. Redacted Transcript Deadline set for 4/14/2011. Release of Transcript Restriction set for 6/13/2011. (Rehling, Kathy) (Entered: 03/14/2011)
232 Joint STATUS REPORT ON COMPETING PROPOSED ORDERS REGARDING UNITED STATES MOTION TO STRIKE DEFENDANTS EXPERTS AS UNTIMELY filed by Apartment Community Realty LLC, JPI Apartment Development LP, JPI Construction LP, Jefferson Bend LP, Jefferson Lake Creek LP, Lifestyle Apartment Development Service LLC, Multifamily Construction LLC, United States of America. (Attachments: # 1 Exhibit(s) Joint Appendix) (Kijewski, Kevin) (Entered: 03/18/2011)
233 ORDER: It is hereby ordered that deft's motion to compel [#224] is denied without prejudice. (Ordered by Magistrate Judge Jeff Kaplan on 3/21/2011) (vdf) (Entered: 03/21/2011)

Case: 3:09-cv-412 As of: 02/17/2016 10:32 PM CST 27 of 36

03/21/2011 04/15/2011 04/15/2011 05/16/2011
05/16/2011 05/16/2011 05/17/2011

234 ORDER: It is hereby ordered that pla's motion to strike [#225] is denied. (See order for specifics) (Ordered by Magistrate Judge Jeff Kaplan on 3/21/2011) (vdf) (Entered: 03/21/2011)
235 MOTION for Partial Summary Judgment as to Liability filed by United States of America (Steinacker, Andrea) (Entered: 04/15/2011)
236 Brief/Memorandum in Support re: 235 MOTION for Partial Summary Judgment filed by United States of America. (Attachments: # 1 Appendix Table of Contents, # 2 Exhibit(s) 1, # 3 Exhibit(s) 2, # 4 Exhibit(s) 3, # 5 Exhibit(s) 4, # 6 Exhibit(s) 5, # 7 Exhibit(s) 6, # 8 Exhibit(s) 7, # 9 Exhibit(s) 8 part 1, # 10 Exhibit(s) 8 part 2, # 11 Exhibit(s) 8 part 3, # 12 Exhibit(s) 9, # 13 Exhibit(s) 10, # 14 Exhibit(s) 11, # 15 Exhibit(s) 12, # 16 Exhibit(s) 13, # 17 Exhibit(s) 14, # 18 Exhibit(s) 15, # 19 Exhibit(s) 16, # 20 Exhibit(s) 17, # 21 Exhibit(s) 18, # 22 Exhibit(s) 19, # 23 Exhibit(s) 20, # 24 Exhibit(s) 21, # 25 Exhibit(s) 22, # 26 Exhibit(s) 23, # 27 Exhibit(s) 24, # 28 Exhibit(s) 25, # 29 Exhibit(s) 26, # 30 Exhibit(s) 27) (Steinacker, Andrea) Modified on 4/18/2011 (anf). (Entered: 04/15/2011)
237 Cross MOTION for Summary Judgment (Defendants' Combined Cross−Motion for Summary Judgment or, Alternatively, for Partial Summary Judgment and Response to Plaintiff's Motion for Summary Judgment) filed by Apartment Community Realty LLC, JPI Apartment Development LP, JPI Construction LP, Jefferson Bend LP, Jefferson Lake Creek LP, Lifestyle Apartment Development Service LLC, Multifamily Construction LLC with Brief/Memorandum in Support. (Attachments: # 1 Proposed Order, # 2 Exhibit(s) Appendix Cover Sheet/Index, # 3 Exhibit(s) Exhibit 1, # 4 Exhibit(s) Exhibit 2, # 5 Exhibit(s) Exhibit 3, # 6 Exhibit(s) Exhibit 4, # 7 Exhibit(s) Exhibit 5, # 8 Exhibit(s) Exhibit 6, # 9 Exhibit(s) Exhibit 7, # 10 Exhibit(s) Exhibit 8, # 11 Exhibit(s) Exhibit 9, # 12 Exhibit(s) Exhibit 10, # 13 Exhibit(s) Exhibit 11, # 14 Exhibit(s) Exhibit 12, # 15 Exhibit(s) Exhibit 13, # 16 Exhibit(s) Exhibit 14, # 17 Exhibit(s) Exhibit 15, # 18 Exhibit(s) Exhibit 16, # 19 Exhibit(s) Exhibit 17, # 20 Exhibit(s) Exhibit 18, # 21 Exhibit(s) Exhibit 19, # 22 Exhibit(s) Exhibit 20, # 23 Exhibit(s) Exhibit 21, # 24 Exhibit(s) Exhibit 22, # 25 Exhibit(s) Exhibit 23, # 26 Exhibit(s) Exhibit 24, # 27 Exhibit(s) Exhibit 25, # 28 Exhibit(s) Exhibit 26, # 29 Exhibit(s) Exhibit 27, # 30 Exhibit(s) Exhibit 28, # 31 Exhibit(s) Exhibit 29, # 32 Exhibit(s) Exhibit 30, # 33 Exhibit(s) Exhibit 31, # 34 Exhibit(s) Exhibit 32, # 35 Exhibit(s) Exhibit 33, # 36 Exhibit(s) Exhibit 34, # 37 Exhibit(s) Exhibit 35, # 38 Exhibit(s) Exhibit 36, # 39 Exhibit(s) Exhibit 37, # 40 Exhibit(s) Exhibit 38, # 41 Exhibit(s) Exhibit 39, # 42 Exhibit(s) Exhibit 40, # 43 Exhibit(s) Exhibit 41, # 44 Exhibit(s) Exhibit 42 − Part 1, # 45 Exhibit(s) Exhibit 42 − Part 2, # 46 Exhibit(s) Exhibit 42 − Part 3, # 47 Exhibit(s) Exhibit 42 − Part 4, # 48 Exhibit(s) Exhibit 42 − Part 5, # 49 Exhibit(s) Exhibit 42 − Part 6, # 50 Exhibit(s) Exhibit 42 − Part 7, # 51 Exhibit(s) Exhibit 42 − Part 8, # 52 Exhibit(s) Exhibit 42 − Part 9, # 53 Exhibit(s) Exhibit 43, # 54 Exhibit(s) Exhibit 44, # 55 Exhibit(s) Exhibit 45, # 56 Exhibit(s) Exhibit 46 − Part 1, # 57 Exhibit(s) Exhibit 46 − Part 2, # 58 Exhibit(s) Exhibit 46 − Part 3, # 59 Exhibit(s) Exhibit 47, # 60 Exhibit(s) Exhibit 48, # 61 Exhibit(s) Exhibit 49, # 62 Exhibit(s) Exhibit 50, # 63 Exhibit(s) Exhibit 51, # 64 Exhibit(s) Exhibit 52, # 65 Exhibit(s) Exhibit 53, # 66 Exhibit(s) Exhibit 54, # 67 Exhibit(s) Exhibit 55, # 68 Exhibit(s) Exhibit 56, # 69 Exhibit(s) Exhibit 57) (Calkins, Lynn) (Entered: 05/16/2011)
238 Notice of Manual Filing of Exhibit 40 − DVD of P. Sheriff Aspen Ridge Video Report by All Defendants re 237 Cross MOTION for Summary Judgment (Calkins, Lynn) (Entered: 05/16/2011)
RESPONSE filed by Apartment Community Realty LLC, JPI Apartment Development LP, JPI Construction LP, Jefferson Bend LP, Jefferson Lake Creek LP, Lifestyle Apartment Development Service LLC, Multifamily Construction LLC re: 235 MOTION for Summary Judgment as to Liability. (see #237 for image) (jrb) (Entered: 05/17/2011)
239 Supplemental Document by Apartment Community Realty LLC, JPI Apartment Development LP, JPI Construction LP, Jefferson Bend LP, Jefferson Lake Creek LP, Lifestyle Apartment Development Service LLC, Multifamily Construction LLC as to 237 Cross MOTION for Summary Judgment (Defendants' Combined Cross−Motion for Summary Judgment or, Alternatively, for Partial Summary Judgment and Response to Plaintiff's Motion for Summary Judgment).

Case: 3:09-cv-412 As of: 02/17/2016 10:32 PM CST 28 of 36

06/01/2011 06/01/2011 06/16/2011
11/10/2011 11/10/2011 11/25/2011 12/05/2011 12/09/2011 12/19/2011
12/21/2011 01/09/2012

(Attachments: # 1 Exhibit(s) 58) (Calkins, Lynn) Modified on 5/18/2011 (jrb). (Entered: 05/17/2011)
240 REPLY filed by United States of America re: 235 MOTION for Summary Judgment and RESPONSE re: 237 Cross MOTION for Summary Judgment (Steinacker, Andrea) (Entered: 06/01/2011)
241 Brief/Memorandum in Support filed by United States of America re 240 Response/Reply (Attachments: # 1 Appendix Table of Contents, # 2 Exhibit(s) 1, # 3 Exhibit(s) 2, # 4 Exhibit(s) 3, # 5 Exhibit(s) 4, # 6 Exhibit(s) 5, # 7 Exhibit(s) 6, # 8 Exhibit(s) 7, # 9 Exhibit(s) 8) (Steinacker, Andrea) (Entered: 06/01/2011)
242 REPLY filed by Apartment Community Realty LLC, JPI Apartment Development LP, JPI Construction LP, Jefferson Bend LP, Jefferson Lake Creek LP, Lifestyle Apartment Development Service LLC, Multifamily Construction LLC re: 235 MOTION for Summary Judgment as to Liability, 236 MOTION for Summary Judgment Memorandum in Support (Attachments: # 1 Appendix, # 2 Exhibit(s) Exibit 1, # 3 Exhibit(s) Exhibit 2, # 4 Exhibit(s) Exhibit 3, # 5 Exhibit(s) Exhibit 4, # 6 Exhibit(s) Exhibit 5, # 7 Exhibit(s) Exhibit 6, # 8 Exhibit(s) Exhibit 7, # 9 Exhibit(s) Exhibit 8, # 10 Exhibit(s) Exhibit 9, # 11 Exhibit(s) Exhibit 10, # 12 Exhibit(s) Exhibit 11, # 13 Exhibit(s) Exhibit 12, # 14 Exhibit(s) Exhibit 13, # 15 Exhibit(s) Exhibit 14, # 16 Exhibit(s) Exhibit 15, # 17 Exhibit(s) Exhibit 16) (Calkins, Lynn) (Entered: 06/16/2011)
243 Findings and Recommendations on Motion re: 235 Motion for Partial Summary Judgment filed by plaintiffs and 237 Cross−Motion for Partial Summary Judgment filed by defendants. Plaintiff's and Defendant's motions for partial summary judgment should be denied. (See order for specifics) (Ordered by Magistrate Judge Jeff Kaplan on 11/10/2011) (vdf) (Entered: 11/10/2011)
244 ORDER SETTING RULE 16 CONFERENCE: A Status Conference is set for 12/2/2011 10:00 AM before Magistrate Judge Jeff Kaplan. (Ordered by Magistrate Judge Jeff Kaplan on 11/10/2011) (vdf) (Entered: 11/10/2011)
245 OBJECTION to 243 Findings and Recommendations. (Steinacker, Andrea) (Entered: 11/25/2011)
246 ORDER: Plaintiff shall submit to the court for an in camera review a brief summary of the voice messages left on its toll−free number by all respondents who have not been disclosed to defendants. This information shall be provided to the court, but not filed of record, by December 16, 2011. (Ordered by Magistrate Judge Jeff Kaplan on 12/5/2011) (vdf) (Entered: 12/05/2011)
247 RESPONSE filed by Apartment Community Realty LLC, JPI Apartment Development LP, JPI Construction LP, Jefferson Bend LP, Jefferson Lake Creek LP, Lifestyle Apartment Development Service LLC, Multifamily Construction LLC re: 245 Objection to Findings and Recommendations (Attachments: # 1 Proposed Order Proposed Order) (Calkins, Lynn) (Entered: 12/09/2011)
248 ORDER: As ordered by the court, plaintiff has submitted for in camera review a summary of voice messages left on its toll−free number from tenants at JPI properties in response to investigative letters inquiring about accessibility issues at those properties. After reviewing the summaries, the court finds that none of the information provided by the callers is even remotely favorable to defendants. To the extent any of the callers relayed information relevant to the issues in this case, such information is favorable only to plaintiff. Accordingly, plaintiff is not required to disclose the identities of these callers to defendants. (Ordered by Magistrate Judge Jeff Kaplan on 12/19/2011) (mcrd) (Entered: 12/19/2011)
249 REPLY filed by United States of America re: 247 Response/Objection, (Steinacker, Andrea) (Entered: 12/21/2011)
250 ORDER denying 235 Motion for Summary Judgment. ; denying 237 Motion for Summary Judgment. ; adopting Report and Recommendations re 243 Findings and Recommendations on Case. (Ordered by Judge Jane J Boyle on 1/9/2012) (Judge Jane J Boyle) (Entered: 01/09/2012)

Case: 3:09-cv-412 As of: 02/17/2016 10:32 PM CST 29 of 36

01/30/2012 01/30/2012 01/31/2012 02/23/2012 03/14/2012
03/14/2012 03/15/2012 03/15/2012

251 NOTICE of Substitution of Lead Counsel filed by United States of America (Steinacker, Andrea) (Entered: 01/30/2012)
252 Joint STATUS REPORT filed by Apartment Community Realty LLC, JPI Apartment Development LP, JPI Construction LP, Jefferson Bend LP, Jefferson Lake Creek LP, Lifestyle Apartment Development Service LLC, Multifamily Construction LLC, United States of America. (Steinacker, Andrea) (Entered: 01/30/2012)
253 ***VACATED PER 317 ORDER*** SCHEDULING ORDER: Pretrial Order due by 6/8/2012. Pretrial Materials due by 6/8/2012. Final Pretrial Materials due 6/28/2012. Pretrial Conference set for 7/6/2012 at 10:00 AM before Judge Jane J Boyle. Trial is set for 7/9/2012 at 09:00 AM before Judge Jane J Boyle. (Ordered by Judge Jane J Boyle on 1/31/2012) (cea) Modified on 6/22/2012 (ctf). (Entered: 01/31/2012)
254 NOTICE of Attorney Appearance by Lynette S Wilson−DOJ on behalf of United States of America. (Wilson−DOJ, Lynette) (Entered: 02/23/2012)
255 ***UNFILED PER ORDER ENTERED 3/14/2012*** MOTION for Leave to File First Amended Complaint(), MOTION in Limine filed by United States of America with Brief/Memorandum in Support. (Attachments: # 1 Proposed First Amended Complaint, # 2 Proposed Order Proposed Order for US Motion for Leave to Amend the Complaint, # 3 Proposed Order Proposed Order for US Motion in Limine, # 4 US Appendix to Motion for Leave to Amend/Motion in Limine, # 5 Exhibit(s) US Exhibit 1, JPI's Initial Disclosures, # 6 Exhibit(s) US Exhibit 2, Magistrate Judge Kaplan's letter (Oct. 2, 2009), # 7 Exhibit(s) US Exhibit 3, US' First Set of Interrogatories to JPI, # 8 Exhibit(s) US Exhibit 4, JPI's Objections and Responses to US' First Set of Interrogatories (Excerpts), # 9 Exhibit(s) US Exhibit 5, JPI's First Supplemental Responses to US' First Set of Interrogatories (Excerpts), # 10 Exhibit(s) US Exhibit 6, JPI's Second Supplemental Responses to US' First Set of Interrogatories (Excerpts), # 11 Exhibit(s) US Exhibit 7, JPI's Third Supplemental Responses to US' First Set of Interrogatories (Excerpts), # 12 Exhibit(s) US Exhibit 8, JPI's Responses to US' Requests for Admissions (Excerpts), # 13 Exhibit(s) US Exhibit 9, Letter from US to JPI (Feb. 14, 2012), # 14 Exhibit(s) US Exhibit 10, Motsenbocker Deposition Excerpts (Feb. 14, 2011), # 15 Exhibit(s) US Exhibit 11, JPI Partners, Inc. Assumed Name Certificate, # 16 Exhibit(s) US Exhibit 12, JPIs Responses to US's Interrogatory No. 7, # 17 Exhibit(s) US Exhibit 13, JPI Investment Co, LP Partnership Agreement (Excerpts), # 18 Exhibit(s) US Exhibit 14, JPI Companies Organizational Chart, # 19 Exhibit(s) US Exhibit 15, JPI Lifestyle Apartment Communities, LP Partnership Agreement, # 20 Exhibit(s) US Exhibit 16, TX SOS Cert of Fact − JPI Investment Company, LP, # 21 Exhibit(s) US Exhibit 17, TX SOS Cert of Fact, JPI Partners, LLC, # 22 Exhibit(s) US Exhibit 18, JPI Lifestyle Apartment Communities, LP Organization Chart, # 23 Exhibit(s) US Exhibit 19, Jefferson at Pin Oak Village Project Manual (Excerpt), # 24 Exhibit(s) US Exhibit 20, Jefferson at Pin Oak Village Development Agreement, # 25 Exhibit(s) US Exhibit 21, JPI's Corporate Records and Filings, # 26 Exhibit(s) US Exhibit 22, Corporate Phone List, # 27 Exhibit(s) US Exhibit 23, JPIs First Amended Original Petition in Declaratory Judgment Action, # 28 Exhibit(s) US Exhibit 24, JPI's Motion for Partial Summ. Judgment Against Twin City Fire Insurance Co.) (Borshansky, Neta) (Entered: 03/14/2012)
256 ORDER striking 255 Motion for Leave to File. The clerk is directed to note on the docket that this document has been unfiled. (Ordered by Magistrate Judge Jeff Kaplan on 3/14/2012) (vdf) (Entered: 03/14/2012)
257 MOTION to Exclude Defendants' Expert Paul Sheriff filed by United States of America with Brief/Memorandum in Support. (Attachments: # 1 Appendix Table of Contents, # 2 Exhibit(s) 1, # 3 Exhibit(s) 2, # 4 Exhibit(s) 3, # 5 Exhibit(s) 4, # 6 Exhibit(s) 5, # 7 Exhibit(s) 6) (Steinacker, Andrea) (Entered: 03/15/2012)
258 MOTION To Limit Expert Testimony Offered By Kenneth Schoonover filed by Apartment Community Realty LLC, JPI Apartment Development LP, JPI Construction LP, Jefferson Bend LP, Jefferson Lake Creek LP, Lifestyle Apartment Development Service LLC, Multifamily Construction LLC with Brief/Memorandum in Support. (Attachments: # 1 Memorandum In Support, # 2

Case: 3:09-cv-412 As of: 02/17/2016 10:32 PM CST 30 of 36

03/15/2012
03/23/2012 03/23/2012
03/23/2012
03/28/2012 04/13/2012 04/13/2012 04/13/2012 04/13/2012 04/13/2012

Appendix, # 3 Exhibit(s) Exhibit A, # 4 Exhibit(s) Exhibit B, # 5 Exhibit(s) Exhibit C, # 6 Exhibit(s) Exhibit D, # 7 Exhibit(s) Exhibit E, # 8 Proposed Order Proposed Order) (Petersen, Rafe) (Entered: 03/15/2012)
259 MOTION To Limit The Expert Testimony Offered By Lisa Iezzoni filed by Apartment Community Realty LLC, JPI Apartment Development LP, JPI Construction LP, Jefferson Bend LP, Jefferson Lake Creek LP, Lifestyle Apartment Development Service LLC, Multifamily Construction LLC with Brief/Memorandum in Support. (Attachments: # 1 Memorandum In Support, # 2 Appendix, # 3 Exhibit(s) Exhibit A, # 4 Exhibit(s) Exhibit B, # 5 Exhibit(s) Exhibit C, # 6 Exhibit(s) Exhibit D, # 7 Exhibit(s) Exhibit E, # 8 Exhibit(s) Exhibit F, # 9 Proposed Order Proposed Order) (Calkins, Lynn) (Entered: 03/15/2012)
260 NOTICE of Unavailability filed by Apartment Community Realty LLC, JPI Apartment Development LP, JPI Construction LP, Jefferson Bend LP, Jefferson Lake Creek LP, Lifestyle Apartment Development Service LLC, Multifamily Construction LLC (Calkins, Lynn) (Entered: 03/23/2012)
261 Joint Status Report and First MOTION for Leave to File First Amended Complaint, First MOTION in Limine to Preclude JPI From Asserting or Introducing Evidence at Trial that Other JPI Entities Should Have Been Named as Defendants filed by Apartment Community Realty LLC, JPI Apartment Development LP, JPI Construction LP, Jefferson Bend LP, Jefferson Lake Creek LP, Lifestyle Apartment Development Service LLC, Multifamily Construction LLC, United States of America with Brief/Memorandum in Support. (Attachments: # 1 Proposed Amendment First Amended Complaint) (Borshansky, Neta) Modified on 3/26/2012 to add Joint Status Report at attorney request(cea). (Entered: 03/23/2012)
262 Appendix in Support filed by Apartment Community Realty LLC, JPI Apartment Development LP, JPI Construction LP, Jefferson Bend LP, Jefferson Lake Creek LP, Lifestyle Apartment Development Service LLC, Multifamily Construction LLC, United States of America re 261 First MOTION for Leave to File First Amended ComplaintFirst MOTION in Limine to Preclude JPI From Asserting or Introducing Evidence at Trial that Other JPI Entities Should Have Been Named as Defendants (Attachments: # 1 Exhibit(s) US: 1−8, # 2 Exhibit(s) US: 9−15, # 3 Exhibit(s) US: 16−24, # 4 Exhibit(s) JPI: 25−26, # 5 Exhibit(s) JPI: 27 (Part 1), # 6 Exhibit(s) JPI: 27 (Part 2), # 7 Exhibit(s) JPI: 28−38) (Borshansky, Neta) Modified on 3/26/2012 per attorney to fix wording on exhibit 7(cea). (Entered: 03/23/2012)
263 ORDER SETTING HEARING: Motion Hearing set for 4/16/2012 09:00 AM before Magistrate Judge Jeff Kaplan. re: 261 First MOTION for Leave to File First Amended Complaint, or in the alternative to Preclude JPI From Asserting or Introducing Evidence at Trial that Other JPI Entities Should Have Been Named as Defendants (Ordered by Magistrate Judge Jeff Kaplan on 3/28/2012) (vdf) (Entered: 03/28/2012)
264 RESPONSE filed by United States of America re: 258 MOTION To Limit Expert Testimony Offered By Kenneth Schoonover (Barron, Pamela) (Entered: 04/13/2012)
265 RESPONSE filed by United States of America re: 259 MOTION To Limit The Expert Testimony Offered By Lisa Iezzoni (Steinacker, Andrea) (Entered: 04/13/2012)
266 Appendix in Support filed by United States of America re 265 Response/Objection to Defendants' Motion to Limit Expert Testimony of Lisa Iezzoni (Steinacker, Andrea) (Entered: 04/13/2012)
267 RESPONSE filed by Apartment Community Realty LLC, JPI Apartment Development LP, JPI Construction LP, Jefferson Bend LP, Jefferson Lake Creek LP, Lifestyle Apartment Development Service LLC, Multifamily Construction LLC re: 257 MOTION to Exclude Defendants' Expert Paul Sheriff (Calkins, Lynn) (Entered: 04/13/2012)
268 Appendix in Support filed by Apartment Community Realty LLC, JPI Apartment Development LP, JPI Construction LP, Jefferson Bend LP, Jefferson Lake Creek

Case: 3:09-cv-412 As of: 02/17/2016 10:32 PM CST 31 of 36

04/13/2012 04/13/2012 04/16/2012 04/17/2012

LP, Lifestyle Apartment Development Service LLC, Multifamily Construction LLC re 267 Response/Objection, to Plaintiff's Motion to Exclude Testimony of Paul Sheriff (Attachments: # 1 Exhibit(s) CV of Paul Sheriff, # 2 Exhibit(s) Paul Sheriff Report #102−1, # 3 Exhibit(s) Depo of Paul Sheriff, # 4 Exhibit(s) Declaration of William Hecker, # 5 Exhibit(s) Depo of Frank Colby, # 6 Exhibit(s) Depo of Ken Schoonover, # 7 Exhibit(s) Depo of Doug Anderson, # 8 Exhibit(s) Depo of Jack Catlin, # 9 Exhibit(s) Depo of Paul Sheriff − Post, # 10 Exhibit(s) Rebuttal Reports of Paul Sheriff #166, # 11 Exhibit(s) Def's Combined Cross−Motion for Summary Judgment, # 12 Exhibit(s) Defs' Reply to Plff's Response to Defs' Mot for Summary Judgment, # 13 Exhibit(s) Paul Sheriff Report − Mission Gate #110−1, # 14 Exhibit(s) Paul Sheriff Report − Congressional Village − #154−1, # 15 Exhibit(s) Paul Sheriff's Report − Fair Oaks − #149−1, # 16 Exhibit(s) Paul Sheriff Report − Fountain View Plaza #213−1, # 17 Exhibit(s) Paul Sheriff Reports − Simi Valley, Commons Fresno, Artisan Center #220−1, # 18 Exhibit(s) Paul Sheriff Report − Logan Circle #147−1, # 19 Exhibit(s) Paul Sheriff Report − Kings Farm #152−1, # 20 Exhibit(s) Paul Sheriff Report − Jefferson Pines #102−1, # 21 Exhibit(s) Paul Sheriff Report − Providence Place #133−1, # 22 Exhibit(s) Paul Sheriff Report − Rock Creek #215−1, # 23 Exhibit(s) Paul Sheriff Report − Sullivan's Place #160−1, # 24 Exhibit(s) Paul Sheriff Report − Washington Crossing, # 25 Exhibit(s) Paul Sheriff Report − Aspen Ridge #218−1, # 26 Exhibit(s) Paul Sheriff Report − Bellingham #145−1, # 27 Exhibit(s) Paul Sheriff Report − City Gate #200−1, # 28 Exhibit(s) Paul Sheriff Report − Fox Hollow #208−1, # 29 Exhibit(s) Paul Sheriff Report − Den Rock #137−1, # 30 Exhibit(s) Paul Sheriff Report − Founder's Park #117−1, # 31 Exhibit(s) Paul Sheriff Report − Arts #124−1, # 32 Exhibit(s) Still Shot Photos − Logan Circle Inspection, # 33 Exhibit(s) Memo in Support of US' Mot for Partial SJ, # 34 Exhibit(s) Mark Wales Report − Jefferson on the River #192−4, # 35 Exhibit(s) LCM Rebuttal Report − #141−1, # 36 Exhibit(s) Frank Colby Report − Jefferson on the Park #90−1, # 37 Exhibit(s) Frank Colby Report − Univ of Louisiana #55−4, # 38 Exhibit(s) Frank Colby Report − Mission Gate #55−3, # 39 Exhibit(s) Magistrate Report and Recommendation, # 40 Exhibit(s) Pete Skarzenski Report − Preston #101−1, # 41 Exhibit(s) Exhibits 41−62 Filed under Cover of Notice of Manual Filing of DVDs, # 42 Exhibit(s) Order Overruling Objections and Accepting the Magistrate's Findings and Recommendation #250) (Calkins, Lynn) (Entered: 04/13/2012)
269 Notice of Manual Filing of Appendix/Exhibit by Apartment Community Realty LLC, JPI Apartment Development LP, JPI Construction LP, Jefferson Bend LP, Jefferson Lake Creek LP, Lifestyle Apartment Development Service LLC, Multifamily Construction LLC re 268 Appendix in Support,,,,,,,,,,,, 267 Response/Objection, Defendants' Notice of Manual Filing of DVDs in Support of Defendants' Opposition to Plaintiff's Motion to Exclude Testimony of Paul Sheriff (Calkins, Lynn) (Entered: 04/13/2012)
270 REQUEST for Evidentiary Hearing re 257 Plaintiff's MOTION to Exclude Paul Sheriff filed by Apartment Community Realty LLC, JPI Apartment Development LP, JPI Construction LP, Jefferson Bend LP, Jefferson Lake Creek LP, Lifestyle Apartment Development Service LLC, Multifamily Construction LLC (Attachments: # 1 Exhibit(s) Email String) (Calkins, Lynn) Modified on 4/16/2012 (skt). (Entered: 04/13/2012)
ELECTRONIC Minute Entry for proceedings held before Magistrate Judge Jeff Kaplan: Motion Hearing held on 4/16/2012 re 261 MOTION for Leave to File First Amended Complaint, First MOTION in Limine to Preclude JPI From Asserting or Introducing Evidence at Trial that Other JPI Entities Should Have Been Named as Defendants. Pla's motion is granted in part, denied in part. Agreed order due by noon, 4/19/2012. Attorney Appearances: Plaintiff − Neta Borshansky; Defense − Lynn Calkins. (Court Reporter: Digital File) (No exhibits) Time in Court − :32. (mcrd) (Entered: 04/16/2012)
271 Notice of Filing of Official Electronic Transcript of Motions Proceedings held on 04/16/2012 before Judge Jeff Kaplan. Court Reporter/Transcriber Kathy Rehling, kathy.rehling@tx.rr.com, Telephone number 972−304−1998. Parties are notified of their duty to review the transcript. A copy may be purchased from the court reporter or viewed at the clerk's office public terminal. If redaction is necessary, a

Case: 3:09-cv-412 As of: 02/17/2016 10:32 PM CST 32 of 36

04/17/2012 04/23/2012 04/24/2012 04/25/2012 04/25/2012 04/27/2012 04/27/2012 04/27/2012 05/02/2012
05/02/2012 05/09/2012

Redaction Request − Transcript must be filed within 21 days. If no such Request is filed, the transcript will be made available via PACER without redaction after 90 calendar days. If redaction request filed, this transcript will not be accessible via PACER; see redacted transcript. The clerk will mail a copy of this notice to parties not electronically noticed. (30 pages). Redaction Request due 5/8/2012. Redacted Transcript Deadline set for 5/18/2012. Release of Transcript Restriction set for 7/16/2012. (Rehling, Kathy) (Entered: 04/17/2012)
272 DVDS received in Clerk's Office (placed on shelf) of Exhibits 41−62 re 269 Notice of Manual Filing filed by Apartment Community Realty LLC, JPI Apartment Development LP, JPI Construction LP, Jefferson Bend LP, Jefferson Lake Creek LP, Lifestyle Apartment Development Service LLC, Multifamily Construction LLC. (twd) (Entered: 04/18/2012)
273 ORDER denying 261 Motion for Leave to File.; granting 261 Motion in Limine (See order for specifics) (Ordered by Magistrate Judge Jeff Kaplan on 4/23/2012) (mcrd) (Entered: 04/23/2012)
274 NOTICE of Attorney Appearance by Lynette S Wilson−DOJ on behalf of United States of America. (Wilson−DOJ, Lynette) (Entered: 04/24/2012)
275 ORDER SETTING HEARING: Motion Hearing set for 5/31/2012 10:00 AM before Judge Jane J Boyle. re: 259 MOTION To Limit The Expert Testimony Offered By Lisa Iezzoni, 258 MOTION To Limit Expert Testimony Offered By Kenneth Schoonover, 257 MOTION to Exclude Defendants' Expert Paul Sheriff. (Ordered by Judge Jane J Boyle on 4/25/2012) (skt) (Entered: 04/25/2012)
276 ELECTRONIC ORDER finding as moot 270 Motion for Hearing. The Motion is now moot in light of the Court's Order filed April 25, 2012 setting a hearing on the parties' motions filed at docs. 257, 258, and 259. (Ordered by Judge Jane J Boyle on 4/25/2012) (chmb) (Entered: 04/25/2012)
277 REPLY filed by Apartment Community Realty LLC, JPI Apartment Development LP, JPI Construction LP, Jefferson Bend LP, Jefferson Lake Creek LP, Lifestyle Apartment Development Service LLC, Multifamily Construction LLC re: 258 MOTION To Limit Expert Testimony Offered By Kenneth Schoonover (Calkins, Lynn) (Entered: 04/27/2012)
278 REPLY filed by Apartment Community Realty LLC, JPI Apartment Development LP, JPI Construction LP, Jefferson Bend LP, Jefferson Lake Creek LP, Lifestyle Apartment Development Service LLC, Multifamily Construction LLC re: 259 MOTION To Limit The Expert Testimony Offered By Lisa Iezzoni (Calkins, Lynn) (Entered: 04/27/2012)
279 REPLY filed by United States of America re: 257 MOTION to Exclude Defendants' Expert Paul Sheriff (Steinacker, Andrea) (Entered: 04/27/2012)
280 Joint STATUS REPORT filed by Apartment Community Realty LLC, JPI Apartment Development LP, JPI Construction LP, Jefferson Bend LP, Jefferson Lake Creek LP, Lifestyle Apartment Development Service LLC, Multifamily Construction LLC, United States of America. (Attachments: # 1 Appendix, # 2 Exhibit(s) A, # 3 Exhibit(s) B, # 4 Exhibit(s) C, # 5 Exhibit(s) D, # 6 Exhibit(s) E, # 7 Exhibit(s) F, # 8 Exhibit(s) G, # 9 Exhibit(s) H, # 10 Exhibit(s) I, # 11 Exhibit(s) J, # 12 Exhibit(s) K, # 13 Exhibit(s) L, # 14 Exhibit(s) M, # 15 Exhibit(s) N, # 16 Exhibit(s) O, # 17 Exhibit(s) P, # 18 Exhibit(s) Q, # 19 Exhibit(s) R, # 20 Exhibit(s) S, # 21 Exhibit(s) T, # 22 Exhibit(s) U, # 23 Exhibit(s) V, # 24 Proposed Order) (Calkins, Lynn) (Entered: 05/02/2012)
281 ORDER SETTING HEARING: Hearing set for 5/9/2012 at 09:00 AM before Magistrate Judge Jeff Kaplan. (Ordered by Magistrate Judge Jeff Kaplan on 5/2/2012) (cea) (Entered: 05/02/2012)
282 Supplemental STATUS REPORT Joint filed by Apartment Community Realty LLC, JPI Apartment Development LP, JPI Construction LP, Jefferson Bend LP, Jefferson Lake Creek LP, Lifestyle Apartment Development Service LLC, Multifamily Construction LLC, United States of America. (Calkins, Lynn) (Entered: 05/09/2012)

Case: 3:09-cv-412 As of: 02/17/2016 10:32 PM CST 33 of 36

05/09/2012
05/09/2012 05/18/2012
05/18/2012 05/18/2012 05/18/2012 05/18/2012
05/18/2012
05/18/2012 05/25/2012 05/25/2012 05/26/2012

ELECTRONIC Minute Entry for proceedings held before Magistrate Judge Jeff Kaplan: Hearing held on 5/9/2012 to resolve a dispute involving a Rule 45 subpoena served by plaintiff. Attorney Appearances: Plaintiff − Andrea Steinacker, Lynette Wilson; Defense − Lynn Calkins, Ernest Martin, Micah Skidmore. (Court Reporter: Digital File) (No exhibits) Time in Court − :25. (mcrd) (Entered: 05/09/2012)
283 ORDER: Defendants' motion to quash [Doc. #280] is denied as moot. (See order for specifics) (Ordered by Magistrate Judge Jeff Kaplan on 5/9/2012) (mcrd) (Entered: 05/09/2012)
284 Application for Admission Pro Hac Vice with Cert. of Good Standing for Attorney Paul A McDermott (Filing fee $25; Receipt number 58244) filed by Apartment Community Realty LLC, JPI Apartment Development LP, JPI Construction LP, Jefferson Bend LP, Jefferson Lake Creek LP, Lifestyle Apartment Development Service LLC, Multifamily Construction LLC. (cea) (Entered: 05/18/2012)
285 ELECTRONIC ORDER granting 284 Application for Admission Pro Hac Vice of Paul A. McDermott. If not already done, Applicant must register as an ECF User within 14 days (LR 5.1(f)). (Ordered by Judge Jane J Boyle on 5/18/2012) (chmb) (Entered: 05/18/2012)
286 Designation of Deposition by Apartment Community Realty LLC, JPI Apartment Development LP, JPI Construction LP, Jefferson Bend LP, Jefferson Lake Creek LP, Lifestyle Apartment Development Service LLC, Multifamily Construction LLC. (Calkins, Lynn) (Entered: 05/18/2012)
287 Witness List by Apartment Community Realty LLC, JPI Apartment Development LP, JPI Construction LP, Jefferson Bend LP, Jefferson Lake Creek LP, Lifestyle Apartment Development Service LLC, Multifamily Construction LLC. (Calkins, Lynn) (Entered: 05/18/2012)
288 Exhibit List by Apartment Community Realty LLC, JPI Apartment Development LP, JPI Construction LP, Jefferson Bend LP, Jefferson Lake Creek LP, Lifestyle Apartment Development Service LLC, Multifamily Construction LLC. (Attachments: # 1 Exhibit(s) TAB A, # 2 Exhibit(s) TAB B, # 3 Exhibit(s) TAB C, # 4 Exhibit(s) TAB D) (Calkins, Lynn) (Entered: 05/18/2012)
289 Exhibit List Amended by Apartment Community Realty LLC, JPI Apartment Development LP, JPI Construction LP, Jefferson Bend LP, Jefferson Lake Creek LP, Lifestyle Apartment Development Service LLC, Multifamily Construction LLC. (Attachments: # 1 Exhibit(s) TAB A, # 2 Exhibit(s) TAB B, # 3 Exhibit(s) TAB C, # 4 Exhibit(s) TAB D) (Calkins, Lynn) (Entered: 05/18/2012)
290 Pretrial Disclosures filed by United States of America. (Attachments: # 1 Witness List, # 2 Exhibit List) (Borshansky, Neta) (Entered: 05/18/2012)
291 Exhibit List and Witness for May 31, 2012 Hearing by Apartment Community Realty LLC, JPI Apartment Development LP, JPI Construction LP, Jefferson Bend LP, Jefferson Lake Creek LP, Lifestyle Apartment Development Service LLC, Multifamily Construction LLC. (Calkins, Lynn) (Entered: 05/25/2012)
292 Exhibit List and Witness List by United States of America. (McAllister, Jennifer) (Entered: 05/25/2012)
293 Notice of Filing of Official Electronic Transcript of Rule 45 Subpoena Dispute Proceedings held on 05/09/2012 before Judge Jeff Kaplan. Court Reporter/Transcriber Kathy Rehling, kathy.rehling@tx.rr.com, Telephone number 972−304−1998. Parties are notified of their duty to review the transcript. A copy may be purchased from the court reporter or viewed at the clerk's office public terminal. If redaction is necessary, a Redaction Request − Transcript must be filed within 21 days. If no such Request is filed, the transcript will be made available via PACER without redaction after 90 calendar days. If redaction request filed, this transcript will not be accessible via PACER; see redacted transcript. The clerk will mail a copy of this notice to parties not electronically noticed. (23 pages). Redaction Request due 6/18/2012. Redacted Transcript Deadline set for 6/26/2012. Release of Transcript Restriction set for 8/24/2012. (Rehling, Kathy) (Entered: 05/26/2012)

Case: 3:09-cv-412 As of: 02/17/2016 10:32 PM CST 34 of 36

05/31/2012 05/31/2012 05/31/2012 06/01/2012 06/01/2012 06/06/2012
06/08/2012
06/08/2012 06/08/2012 06/08/2012

ELECTRONIC Minute Entry for proceedings held before Judge Jane J Boyle: Daubert Hearing held on 5/31/2012. Attorney Appearances: Plaintiff − Andrea Steinacker, Pamela Barron, Lynette Wilson, and Michael Maurer; Defense − William Sessions, Christopher Hanback, Rafe Peterson, and Lynn Calkins. (Court Reporter: Shawnie Archuleta) (No exhibits) Time in Court − 02:03. (chmb) (Entered: 05/31/2012)
294 ORDER denying 257 Motion to Exclude Defendants' Expert Paul Sheriff. The Court holds in abeyance Defendant's Motions 258 , 259 for determination at a later time. (Ordered by Judge Jane J Boyle on 5/31/2012) (twd) (Entered: 05/31/2012)
295 ORDER: The Court hereby ORDERS that any objections to the parties' motions in limine shall be filled within fourteen (14) days after the motions in limine are filed. The Court also hereby ORDERS that at least ten (10) days before the pretrial conference, the parties and their respective lead counsel shall hold a face−to−face meeting to discuss settlement of this case. (Ordered by Judge Jane J Boyle on 5/31/2012) (cea) (Entered: 05/31/2012)
296 OBJECTION filed by Apartment Community Realty LLC, JPI Apartment Development LP, JPI Construction LP, Jefferson Bend LP, Jefferson Lake Creek LP, Lifestyle Apartment Development Service LLC, Multifamily Construction LLC re: 290 Pretrial Disclosures (Calkins, Lynn) (Entered: 06/01/2012)
297 Objections to JPI's Pretrial Disclosures filed by United States of America. (Attachments: # 1 Appendix A: Specific Objections to JPI's Exhibit List) (Borshansky, Neta) (Entered: 06/01/2012)
298 Notice of Filing of Official Electronic Transcript of Daubert Motions Proceedings held on May 31, 2012 before Judge Jane J. Boyle. Court Reporter/Transcriber Shawnie Archuleta, Telephone number 214−753−2747. Parties are notified of their duty to review the transcript. A copy may be purchased from the court reporter or viewed at the clerk's office public terminal. If redaction is necessary, a Redaction Request − Transcript must be filed within 21 days. If no such Request is filed, the transcript will be made available via PACER without redaction after 90 calendar days. If redaction request filed, this transcript will not be accessible via PACER; see redacted transcript. The clerk will mail a copy of this notice to parties not electronically noticed. (96 pages) Redaction Request due 6/27/2012. Redacted Transcript Deadline set for 7/9/2012. Release of Transcript Restriction set for 9/4/2012. (spa) (Entered: 06/06/2012)
299 MOTION Request for Judicial Notice filed by Apartment Community Realty LLC, JPI Apartment Development LP, JPI Construction LP, Jefferson Bend LP, Jefferson Lake Creek LP, Lifestyle Apartment Development Service LLC, Multifamily Construction LLC (Attachments: # 1 Appendix, # 2 Exhibit(s) Exhibit 1, # 3 Exhibit(s) Exhibit 2, # 4 Exhibit(s) Exhibit 3, # 5 Exhibit(s) Exhibit 4, # 6 Exhibit(s) Exhibit 5, # 7 Exhibit(s) Exhibit 6, # 8 Exhibit(s) Exhibit 7, # 9 Exhibit(s) Exhibit 8, # 10 Exhibit(s) Exhibit 9, # 11 Exhibit(s) Exhibit 10, # 12 Exhibit(s) Exhibit 11, # 13 Exhibit(s) Exhibit 12, # 14 Exhibit(s) Exhibit 13, # 15 Exhibit(s) Exhibit 14, # 16 Exhibit(s) Exhibit 15, # 17 Exhibit(s) Exhibit 16) (Calkins, Lynn) (Entered: 06/08/2012)
300 MOTION in Limine for Directed Verdict on Plaintiff's Claims Against 20 Properties filed by Apartment Community Realty LLC, JPI Apartment Development LP, JPI Construction LP, Jefferson Bend LP, Jefferson Lake Creek LP, Lifestyle Apartment Development Service LLC, Multifamily Construction LLC (Attachments: # 1 Proposed Order Proposed Order) (Calkins, Lynn) (Entered: 06/08/2012)
301 TRIAL BRIEF by Apartment Community Realty LLC, JPI Apartment Development LP, JPI Construction LP, Jefferson Bend LP, Jefferson Lake Creek LP, Lifestyle Apartment Development Service LLC, Multifamily Construction LLC. (Calkins, Lynn) (Entered: 06/08/2012)
302 MOTION in Limine to Overrule Plaintiff's Objections to Defendants' Trial Exhibits filed by Apartment Community Realty LLC, JPI Apartment Development LP, JPI Construction LP, Jefferson Bend LP, Jefferson Lake Creek LP, Lifestyle Apartment Development Service LLC, Multifamily Construction LLC

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(Attachments: # 1 Proposed Order Proposed Order) (Calkins, Lynn) (Entered: 06/08/2012)
303 MOTION in Limine to Preclude Argument or Presentation of Evidence in Form of An Untimely Expert Opinion Or Improper Argument filed by Apartment Community Realty LLC, JPI Apartment Development LP, JPI Construction LP, Jefferson Bend LP, Jefferson Lake Creek LP, Lifestyle Apartment Development Service LLC, Multifamily Construction LLC (Attachments: # 1 Appendix, # 2 Exhibit(s) Exhibit 1, # 3 Exhibit(s) Exhibit 2, # 4 Exhibit(s) Exhibit 3, # 5 Exhibit(s) Exhibit 4, # 6 Exhibit(s) Exhibit 5, # 7 Exhibit(s) Exhibit 6, # 8 Exhibit(s) Exhibit 7, # 9 Exhibit(s) Exhibit 8, # 10 Exhibit(s) Exhibit 9, # 11 Exhibit(s) Exhibit 10, # 12 Exhibit(s) Exhibit 11, # 13 Exhibit(s) Exhibit 12, # 14 Exhibit(s) Exhibit 13) (Calkins, Lynn) (Entered: 06/08/2012)
304 Proposed Voir Dire by Apartment Community Realty LLC, JPI Apartment Development LP, JPI Construction LP, Jefferson Bend LP, Jefferson Lake Creek LP, Lifestyle Apartment Development Service LLC, Multifamily Construction LLC. (Attachments: # 1 Attachment A) (Calkins, Lynn) (Entered: 06/08/2012)
305 Proposed Pretrial Order by Apartment Community Realty LLC, JPI Apartment Development LP, JPI Construction LP, Jefferson Bend LP, Jefferson Lake Creek LP, Lifestyle Apartment Development Service LLC, Multifamily Construction LLC, United States of America. (McAllister, Jennifer) (Entered: 06/08/2012)
306 MOTION in Limine to Exclude Evidence that JPI Purportedly Complied with the FHA and ADA at Properties Not Involved in this Case filed by United States of America with Brief/Memorandum in Support. (Steinacker, Andrea) (Entered: 06/08/2012)
307 MOTION in Limine TO PRECLUDE PLAINTIFF FROM ASSERTING OR INTRODUCING EVIDENCE AT TRIAL OF SETTLEMENT COMMUNICATIONS, ANY SETTLEMENT BETWEEN DEFENDANTS AND INSURANCE CARRIERS, AND/OR LIABILITY INSURANCE POLICIES filed by Apartment Community Realty LLC, JPI Apartment Development LP, JPI Construction LP, Jefferson Bend LP, Jefferson Lake Creek LP, Lifestyle Apartment Development Service LLC, Multifamily Construction LLC (Attachments: # 1 Appendix, # 2 Exhibit A Kaplan 5_9_12, # 3 Exhibit B Motsenbocker Affidavit, # 4 Exhibit C Hanback Declaration). Document filed via the Court's emergency filing e−mail account on 6/8/12. (gmg) (Entered: 06/11/2012)
308 MOTION in Limine TO PRECLUDE PLAINTIFF FROM OFFERING EVIDENCE OR ARGUMENT REGARDING THE SINGLE, INTEGRATED ENTERPRISE OR CORPORATE WEB THEORY filed by Apartment Community Realty LLC, JPI Apartment Development LP, JPI Construction LP, Jefferson Bend LP, Jefferson Lake Creek LP, Lifestyle Apartment Development Service LLC, Multifamily Construction LLC (Attachments: # 1 Appendix, # 2 Exhibit A Proposed Amended Complaint, # 3 Exhibit B Hearing Transcript, # 4 Exhibit C Objections. Document filed via the Court's emergency filing e−mail account on 6/8/12. (gmg) (Entered: 06/11/2012)
309 Defendant's Proposed Jury Instructions filed by Apartment Community Realty LLC, JPI Apartment Development LP, JPI Construction LP, Jefferson Bend LP, Jefferson Lake Creek LP, Lifestyle Apartment Development Service LLC, Multifamily Construction LLC. Document filed via the Court's emergency filing e−mail account on 6/8/12. (gmg) (Entered: 06/11/2012)
310 MOTION in Limine TO EXCLUDE EVIDENCE OR ARGUMENT REGARDING THE ABSENCE OF AGGRIEVED PERSONS AND THE UNITED STATES INVESTIGATIVE ATTEMPTS TO IDENTIFY AGGRIEVED PERSONS filed by United States of America (Attachments: # 1 Exhibit). Document filed via the Court's emergency filing e−mail account on 6/8/12.(gmg) (Entered: 06/11/2012)
311 MOTION in Limine TO EXCLUDE EVIDENCE THAT JPI WAS NOT INVOLVED IN THE DESIGN OR CONSTRUCTION OF CERTAIN PROPERTIES filed by United States of America (Attachments: # 1 Exhibit).

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Document filed via the Court's emergency filing e−mail account on 6/8/12.(gmg) (Entered: 06/11/2012)
312 Proposed Voir Dire by United States of America. Document filed via the Court's emergency filing e−mail account on 6/8/12. (gmg) (Entered: 06/11/2012)
313 Proposed Jury Interrogatories filed by United States of America. Document filed via the Court's emergency filing e−mail account on 6/8/12.(gmg) (Entered: 06/11/2012)
314 Proposed Jury Instructions filed by United States of America. Document filed via the Court's emergency filing e−mail account on 6/8/12. (gmg) (Entered: 06/11/2012)
315 CERTIFICATE of Conference re 302 MOTION in Limine to Overrule Plaintiff's Objections to Defendants' Trial Exhibits, 308 MOTION in Limine, 300 MOTION in Limine for Directed Verdict on Plaintiff's Claims Against 20 Properties, 303 MOTION in Limine to Preclude Argument or Presentation of Evidence in Form of An Untimely Expert Opinion Or Improper Argument, 307 MOTION in Limine, 299 MOTION Request for Judicial Notice by Rafe Petersen on behalf of Apartment Community Realty LLC, JPI Apartment Development LP, JPI Construction LP, Jefferson Bend LP, Jefferson Lake Creek LP, Lifestyle Apartment Development Service LLC, Multifamily Construction LLC. Filed via the Court's emergency e−mail account on 6/8/12. (gmg) (Entered: 06/11/2012)
316 Joint MOTION for Entry of Consent Order filed by Apartment Community Realty LLC, JPI Apartment Development LP, JPI Construction LP, Jefferson Bend LP, Jefferson Lake Creek LP, Lifestyle Apartment Development Service LLC, Multifamily Construction LLC, United States of America (Attachments: # 1 Proposed Order) (Steinacker, Andrea) (Entered: 06/22/2012)
317 ORDER VACATING SCHEDULING ORDER: The parties have notified the Court that this case has settled. Accordingly, the Court's Order Setting Trial Schedule (doc. 253 ) and all pending deadlines and dates, including deadlines for any pending motions and the trial setting of 7/9/2012, are hereby VACATED. (Ordered by Judge Jane J Boyle on 6/22/2012) (axm) (Entered: 06/22/2012)
318 ***DISREGARD, DUPLICATE ORDER***ORDER VACATING SCHEDULING ORDER: The parties have notified the Court that this case has settled. Accordingly, the Courts 253 Order Setting Trial Schedule and all pending deadlines and dates, including deadlines for any pending motions and the trial setting of 7/9/2012, are hereby VACATED. (Ordered by Judge Jane J Boyle on 6/22/2012) (ctf) Modified on 6/22/2012 (ctf). (Entered: 06/22/2012)
319 ELECTRONIC ORDER granting 316 Joint Motion for Entry of Consent Order. The Court will issue its Consent Order in a separate filing. (Ordered by Judge Jane J Boyle on 6/25/2012) (chmb) (Entered: 06/25/2012)
320 CONSENT ORDER. (Ordered by Judge Jane J Boyle on 6/25/2012) (axm) (Entered: 06/25/2012)
321 ORDER DISMISSING ALL CLAIMS AND CLOSING CASE: The United States' claims are DISMISSED WITH PREJUDICE. The Clerk of Court is instructed to administratively close this case. (Ordered by Judge Jane J Boyle on 6/25/2012) (axm) (Entered: 06/25/2012)
322 NOTE: The documents attached were originally available in paper format only and are now attached here for electronic viewing in the clerk's office. Content includes items referenced in docket entries as −in paper− or −too large− etc. They were scanned in chronological order but are not separated with individual hyperlinks. The viewer is advised to scroll through content in order to locate requested material. (ali) (Entered: 01/11/2016)