IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT 

OF FLORIDA 

Case No. l:20-cv-21994-AHS 

FLORIDA FAIR HOUSING ALLIANCE, 

INC. 

Plaintiff, 

V. 

TOP WELL. LLC dlb/a/PALM COURT APARTMENTS 

AT WELLINGTON 

Defendant. 

FILED BY r'c ( D.C. 

JUN 1 6 2020 

ANGELA E. NOBLE 

CLERK U.S. DIST. CT. 

S.D. OF FLA. - W.P.B. 

DEFENDANTS' MOTION TO DISMISS COMPLAINT PURSUANT TO 

FEDERAL RULE OF CIVIL PROCEEDURE 12(b)(6) AND MOTION FOR 

ATTORNEY'S FEES 

INTRODUCTION 

The Plaintiff in this matter, Florida Fair Housing Alliance, Inc., is a Florida not for profit 

corporation formed on February 13, 2020. Plaintiffs alleges that this corporation is a fair housing 

advocacy organization. Plaintiffs complaint asserts a single cause of action for disparate impact 

under the Fair Housing Act against Defendant. Plaintiff alleges the Defendant is the owner of an 

apartment complex in Wellington Florida. Plaintiff allegation are that its employee/agent "field 

tester" made a single cold called phone number 561-793-8500 and posed as a prospective tenant. 

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Plaintiff alleges a woman who identified herself as Melissa answered. Plaintiff claims he asked 

Melissa if there was an apartment for rent and that she told him there was a two-bedroom unit 

available. Tester then told Melissa that he had a felony conviction and asked if his application 

would be denied. Plaintiff alleges Melissa told the field tester that it would and that was the end 

of the conversation. Plaintiff does not allege he told Melissa his name or that he was Hispanic. 

Plaintiff does not allege he asked Melissa who she worked for. Plaintiff does not allege he asked 

any questions about whose rule or regulation doesn't allow convicted felons. Plaintiff does not 

allege to have done any investigation to determine what percentage of units are rented to 

Hispanics and does not allege that there is a disparate percentage of Hispanics at the complex. 

Plaintiff does not allege to have done any investigation or to have even asked Melissa the reason 

for the "no felons" rule to know if there is a valid reason. With those incidents as the sum total 

of "investigation" done by the Plaintiff this suit was filed. 

Argument 

Plaintiff claim, as alleged in the pleadings, is based upon Plaintiffs presumption that if 

there exists any rule dealing with felons that rule automatically is a violation of the Fair Housing 

Act under the theory of disparate impact. Plaintiff assumes, based upon a 2014 HUD guidance 

report he cited that referred to statistics from another report that he has carried his burden of 

proof as required by 24 CFR § 100.500( c )(1 ). Plaintiff does not, anywhere in its pleadings, state 

that there is an actual disparate impact on the residents of the condominium project. Instead the 

Plaintiff wants the Court to assume that because the HUD report he referred to had referenced 

statistics that could result in disparate impact that disparate impact exists in all projects with rules 

about felons. Further, Plaintiff wants the Court to assume that a complex cannot have a valid 

reason for such rule. Paragraph 13 of plaintiffs complaint pleads: 

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The U.S. Department of Housing and Urban Development ("HUD") has found 

that "where a policy or practice that restricts access to housing on the basis of criminal 

background has a disparate impact on individuals of a particular race ... such policy or 

practice is unlawful under the Fair Housing Act if it is not necessary to serve a 

substantial, legitimate, nondiscriminatory interest of the housing provider. 

The plain language of this paragraph, 24 C.F.R. 100.500 (c) ... The Plaintiff, with respect to a 

claim brought under 42 U.S.C. 3613 (That is what Plaintiff brought this case under), has the 

burden of proving that the challenged practice caused or predictably will cause a discriminatory 

effect. Plaintiff has not even attempted to achieve that pleading requirement. 

Memorandum of law 

As will be set forth in greater detail below, Plaintiffs complaint fails to state a cause of 

action for unlawful discrimination based upon any class or characteristic protected by the Fair 

Housing Act. Similarly, the complaint fails to state a claim for unlawful disparate impact as the 

allegation concerning Plaintiff's single cold call encounter lack the requisite factual allegations 

to establish that alleged policy of not renting to convicted felons has a disparate impact on a 

protected class. 

1. Standards Governing Motions to Dismiss. 

Fed. R. Civ. Proc. 12(b)(6) vests a party with the right to move to dismiss a complaint 

"for failure to state a claim upon which relief can be granted." Dismissal for failure to state a 

claim is warranted if a cause of action does not contain specific factual matter, accepted as true, 

to state a claim that is plausible on its face and to suggest the required elements of the claim. 

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Neitzke v. Williams, 490 U.S. 319, 326 (1989); 

Watts v. Florida Int 'l Univ., 495 F.3d 1289, 1296 (11th Cir. 2007); Hill v. White, 321 F.3d 1334, 

1335 (11th Cir. 2003). Factual allegations in a complaint need not be detailed but "must be 

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enough to raise a right to relief above the speculative level ... on the assumption that all the 

allegations in the complaint are true (even if doubtful in fact). Bell Atl. Corp. v. Twombly, 550 

U.S. 544,555 (2007 (citing Swierkiewicz v. SoremaN.A., 534 U.S. 506,508 n. I (2002)). Thus, 

a complaint, "requires more than labels and conclusions, and a formulaic recitation of the 

elements of a cause of action will not do," Twombly, 550 U.S. at 555; moreover, it must '"provide 

the defendant fair notice of what plaintiff1s'] claim[s]"' are, Charles H. Wesley Educ. Found., 

Inc. v. Cox, 408 Fl.3d 1349, 1352 (11th Cir. 2005) ( quoting United States v. Baxter Int'l, Inc., 

345 F.3d 866,881 (11th Cir. 2003)). 

2. Plaintiff's one Count Complaint is for "Violation of the Fair Housing Act". 

Plaintiffs complaint alleges violation by Defendant of the federal Fair Housing Act, 42 

U.S.C. 3601 et seq. Specifically, Plaintiff alleges that its employee/agent "tester", called phone 

number 561 793-8500 and talked to someone named Melissa. Plaintiff does not allege he asked 

Melissa who she worked for. Plaintiff assumes and alleges that Melissa is an agent for Top 

Well LLC which Plaintiff alleges has a d/b/a/ Palm Court Apartments at Wellington. Plaintiff 

alleges the cold call was to 'test the [Community] for unlawful discriminatory housing 

practices." 

Plaintiffs complaint alleges that it "has suffered, is continuing to suffer, and will in the future 

suffer irreparable loss and injury and a real and immediate threat of future discrimination by 

Plaintiff." Plaintiff does not allege that its agent, employee "tester" made Defendant aware of 

his race or national origin during the alleged phone call nor does Plaintiff allege that he was 

denied the apartment because of his race or national origin or for any other reason relating to a 

protected class under the Fair Housing Act. 

a. The pleading requirement for a valid cause of action for Disparate Impact. 

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24 CFR § 100.500(c)(l) requires that the plaintiff, with respect to a claim brought under 

42 U.S.C. 3613, has the burden of proving that a challenged practice caused or predictably will 

cause a discriminatory effect. The Plaintiff has simply stated that the Defendant has a policy of 

not allowing convicted felons to rent in the complex. The Plaintiff has not plead, or even 

attempted to plead that the challenged practice caused, or predictably will cause a 

discriminatory effect. Instead, the Plaintiff referred to statements in a HUD report that cited 

statistical information which discussed the possibilities of certain actions having certain 

disparate impact under certain conditions. As plead, this case is directly on point with Carson v 

Hernandez: 2018 U.S. Dist. Lexis 185782 (July 26, 2018) citing Inclusive Cmtys. Project, 

Inc.135 S. Ct. 2507. 

In Inclusive Communities, the court held: "[A] disparate impact claim that relies on a 

statistical disparity must fail if the Plaintiff cannot point to a defendant's policy or 

policies causing the disparity. A robust causality requirement ensures that [r]acial 

imbalance does not, without more, establish a prima facie case of disparate impact" 

and thus protects the defendant from being held liable for racial disparities the did 

not create. Id At 2523 (quoted case omitted) Accordingly. "[A] plaintiff who fails to 

allege facts at the pleading state or produce statistical evidence demonstrating a 

causal connection cannot make out a prima facie case of disparate impact." Id at 

2523. 

In the case sub Judice. Plaintiff has not identified any specific policy or practice of 

defendants that caused a disparate impact on a protected group. He avers only 

generally that the "practice and policy" to deny housing from those released from 

prison and cites purported disparate impact on African Americans based on statistical 

data. Doc. 3 at 2; 7 at 2-3. Assuming arguendo, that Defendants had a policy of 

rejecting applicants with felony convictions, regardless of the age of the convictions, 

Plaintiff has wholly failed to demonstrate a "robust causal connection between the 

alleged policy or practice and the perceived adverse discriminatory effect. Inclusive 

Cttys., 135 S. Ct. at 2513, Certainly a policy of excluding convicted felons for 

tenancy did not cause the underlying disparity. Plaintiff cites, to-wit, the historical 

disproportion of African Americans convicted of felony offences in the United 

States. Doc. 3 at 3. In any event, such a policy is not "otherwise unjustified by a 

legitimate rational" Inclusive Cmtys, 135 S. Ct. at 2513, as it is obviously pe1tinent to 

maintaining a crime-free environment. 

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4;. 

The only difference between Plaintiffs case and Carson v. Hernandez is that in Plaintiffs 

case there is no claim that there actually is a disparate number of Hispanics let alone that the 

policy caused the disparity. Even before the Supreme Court's decision in Inclusive 

Communities, however, the Eleventh Circuit had already held that at least some "relevant 

statistical showing" is the minimum required to support a disparate impact claim of 

discrimination under the Fair Housing Act. In Schwarz v. City of Treasure Island, 544 F.3d 

1201 (11th Cir. 2008), an operator of halfway houses for recovering alcoholics (considered 

"disabled" under the Fair Housing Act) alleged that a city's zoning ordinance had a disparate 

impact on the protected class of people with disabilities. The operator's claim failed and was 

dismissed, however, because he provided no comparative data to support a prima facie case of 

disparate impact. The Schwarz plaintiff failed to provide "an adequate statistical foundation for 

a disparate impact claim because he presented no comparative data at all," relying instead on a 

"bald assumption" that the ordinance's effect on the halfway houses would have a disparate 

impact on recovering alcoholics. Id. at 1217-18. 

Under Inclusive Communities, therefore, a prima facie case of disparate impact 

discrimination will fail unless it demonstrates both relevant statistical disparity ( evidence 

comparing members of the protected class affected by the challenged policy with non-members 

affected by the challenged policy), and also a plausible showing of "robust causality" between 

the challenged policy and that statistical disparity. Inclusive Communities at 2522-2523. 

Succinctly, a "plaintiff who fails to allege facts at the pleading stage or produce statistical 

evidence demonstrating a causal connection cannot make out a prima facie case of disparate 

impact." Id.; see also Oviedo Town Center 11, L.L.L.P. v. City of Oviedo, Florida, 759 

Fed.Appx. 828 (1 Cir. 2018) (granting defendants' 12(b)(6) motion to dismiss complaint 

discrimination under the Fair Housing Act). 

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The Defendant in this matter, is entitled to have its Motion to Dismiss under F.R.C.P. 

Rule 12(b )( 6) for failure to state a claim upon which relief can be granted. Dismissal for failure 

to state a claim is warranted if a cause of action does not contain specific factual matter, 

accepted as true, to state a claim that is plausible on its face and to suggest the required elements 

of the claim." Ashcroft v. Iqbal. Plaintiff has not met the pleading requirements of 24 

C.F .R. § 100.500( c )(1 ). Plaintiff failed to meet the burden of proving that the challenged practice 

caused or predictably will cause a discriminatory effect to a protected class. 

Defendant requests that this court retain jurisdiction to determine and grant Defendant 

attorney's fees as applicable under 42 U.S.C. 3613(c)(2) which allows the court, in its 

discretion to allow the prevailing party a reasonable attorney's fee and costs. 

As Plaintiffs complaint fails to meet even the prima facie element of a disparate impact case 

(identifying an operative policy allegedly causing a discriminatory effect), the Defendants 

Motion to Dismiss the under Rule 12(b )( 6) should be Granted and Defendants Motion for 

Attorney's fees under 42 U.S.C.S. (c)(2) should be Granted. 

Respectfully submitted this 9TH Day of June 16th day of June 2020. 

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Thomas F. ~ P.A. _,,, .A~::--·-----

-··-·--:;;:~--

IsPfhomas F Ryan 

Florida Bar Number 293180 

636 U.S. 1 Suite 110 

North Palm Beach, Florida 33408 

Phone 561 723 5725 

Fax 

Email ryant1aw@aol.com 

Attorney for Top Well LLC 

Case 1:20-cv-21994-KMW Document 6 Entered on FLSD Docket 06/17/2020 Page 7 of 8
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CERTIFICATE OF SERVICE 

I hereby certify that on this 16th day of June 9, 2020, I presented the foregoing.to the 

Clerk of Court for filing for electronic filing I will e-mail a copy of the foregoing 

to.jibrael@jibraellaw.com. an:dtom@jibraeiiaw.com. as I am awaiting clearance from 

cm/ecf and uploading to the Court's electronic portal system, at which time all parties registered 

to receive notice electronically received electronic service of the foregoing. 

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