UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF FLORIDA 

MIAMI DIVISION 

FLORIDA FAIR HOUSING ALLIANCE, INC.,

Plaintiff, 

vs. 

THE PALM BAY GRAND, LLC 

d/b/a PALM BAY GRAND, 

Defendant. 

/

CASE NO. 1:20-cv-22665 

THE PALM BAY GRAND’S MOTION TO DISMISS 

 Pursuant to Federal Rules of Civil Procedure 12(b)(1), 12(b)(3) and 12(b)(6), The Palm 

Bay Grand, LLC d/b/a Palm Bay Grand1 moves to dismiss the Plaintiff’s Amended Complaint 

with prejudice.2 For the reasons stated below, this Court should grant the requested relief. 

INTRODUCTION 

 On August 11, 2006, Ryan Turizo was sentenced to ten years in prison for burglary of a 

dwelling, five years for grand theft and five years for cocaine possession. See the Florida 

Department of Corrections, Inmate Release Information Detail, attached as Exhibit “A.”3 He was 

released from prison on March 1, 2015 and submitted the Plaintiff’s Articles of Incorporation five 

years later, on February 13, 2020. See id. See also the Electronic Articles of Incorporation, 

 

1

 The Amended Complaint incorrectly refers to The Palm Bay Grand, LLC as The Palm Grand, 

LLC. 

2

 In accordance with Southern District Local Rule 5.1, this documents contains one and one-half 

inch spacing. 

3

 Federal Rule of Evidence 201 authorizes this Court to take judicial notice on its own initiative of 

facts that can be readily determined. For instance, “[w]hen considering a motion to dismiss, the 

Court may take judicial notice of the contents of relevant public records.” Prof’l Led Lighting, 

Ltd. v. Aadyn Tech., LLC, 88 F. Supp. 3d 1356, n.2 (S.D. Fla. Feb. 17, 2015) (internal citations 

omitted). The public records attached to this Motion are relevant because they show the 

disingenuous nature of the Plaintiff’s Amended Complaint. Considering these documents at the 

motion to dismiss stage does not require conversion to the summary judgment stage. See Bryant 

v. Avado Brands, Inc., 187 F.3d 1271, 1280 (11th Cir. 1999). 

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attached as Exhibit “B.” On June 23, 2020, which was a mere three days before this lawsuit 

commenced, Ryan Turizo completed, signed and submitted on the Plaintiff’s behalf an application 

to the State of Florida. See the application, attached as Exhibit “C.” That application sought to 

have the State of Florida approve the Plaintiff as a charitable organization that allegedly seeks to 

obtain fair housing. Ryan Turizo falsely represented on the application’s second page below his 

phone number that he does not have a criminal history and stated on the last page that the 

information he provided, including falsely informing the State of Florida that he did not have a 

criminal history, was “true and accurate.” See id. at Pages 2 and 3. It would be inequitable to 

force the Defendant to remain a party to a lawsuit brought by an entity allegedly formed to help 

people with convictions obtain housing but whose president lied to the State of Florida about his 

own criminal history. 

 Furthermore, despite Ryan Turizo only recently incorporating the Plaintiff, he is a serial 

litigant who has filed over 20 lawsuits in the Southern District of Florida over the last 19 months. 

This action’s operative complaint, like his prior complaints, is defective and subject to dismissal. 

For instance, this lawsuit was improperly brought in the Southern District against the Defendant, 

whose principal place of business is in the Middle District of Florida, regarding an apartment 

complex located in Melbourne, Florida. In addition to venue not existing in this Court, the 

Amended Complaint fails to state a cause of action. The sole count is for allegedly violating 24 

U.S.C. § 3604(d), which makes it unlawful to misrepresent based on race that a dwelling unit is 

not available to rent. But, the Amended Complaint asserts the Defendant’s agent told a tester, who 

was a felon, that the apartment complex would not rent to him because he was a felon. Since she 

did not misrepresent the unit’s availability, no cause of action exists and the Plaintiff lacks standing 

to sue on behalf of any members it has. Moreover, because the application submitted to the State 

of Florida said the Plaintiff has no expenses, the Plaintiff also lacks standing to sue on its own 

behalf because one of the criteria to sue on its own behalf is pleading it diverted resources and any 

such representation in the Amended Complaint is false based on the application’s contents. See 

Exhibit C, Page 3 (stating the Plaintiff spends no money on “[p]rogram services,” “management,” 

“general” expenses or fundraising). Finally, the Plaintiff has not only failed to allege 

discrimination regarding the proper geographic area and relevant facts, data or statistics, the 

Amended Complaint also lacks the robust causality required by the United States Supreme Court. 

For all of these reasons, this Court should dismiss the Amended Complaint. 

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I. The Court Should Dismiss The Amended Complaint Because The Southern District 

 Is An Improper Venue 

 When jurisdiction is not founded on diversity, 28 U.S.C. § 1391(b) governs whether venue 

is proper. Section 1391(b) provides that venue is proper in: 

(1) a judicial district in which any defendant resides, if all defendants are residents 

of the State in which the district is located; 

(2) a judicial district in which a substantial part of the events or omissions giving 

rise to the claim occurred, or a substantial part of property that is the subject of the 

action is situated; or 

(3) if there is no district in which an action may otherwise be brought as provided 

in this section, any judicial district in which any defendant is subject to the court's 

personal jurisdiction with respect to such action. 

28 U.S.C. § 1391. Furthermore, pursuant to 28 U.S.C. § 1391(d), “in a State which has more than 

one judicial district and in which a defendant that is a corporation is subject to personal jurisdiction 

at the time an action is commenced, such corporation shall be deemed to reside in any district in 

that State within which its contacts would be sufficient to subject it to personal jurisdiction if that 

district were a separate State.” 

 Applying Section 1391 to the facts before this Court shows the Southern District of Florida 

is an improper venue. The Amended Complaint makes the conclusory statement that “[v]enue in 

this District is proper because Plaintiff resides in this district, Defendant transacts business in this 

district, and the complained conduct of Defendant occurred in this district.” [D.E. 6 at ¶5]. 

However, Section 1391(b) only considers the defendant’s residence so the Plaintiff’s residence is 

immaterial. See Hicks v. Makaha Valley Plantation Homeowners Ass’n, 2015 WL 328311, at *1 

(D. Haw. Jan. 26, 2015) (denying venue in plaintiff’s home state of Georgia for alleged housing 

discrimination relating to a property in Hawaii). Although the Plaintiff concedes the property at 

issue is located in Melbourne, Florida, Paragraph Eight falsely represents the Defendant has its 

principal place of business in Boca Raton, Florida. See [D.E. 6 at ¶¶8, 12]. As stated in the 

attached affidavit, the Defendant’s principal place of business, like the property at issue, is located 

in the Middle District. See the Affidavit of Justin Trimback, attached as Exhibit “D.” Furthermore, 

the Defendant’s business activities are limited to owning the property in question, the Defendant 

does not have any employees in the Southern District of Florida, it does not advertise in the 

Southern District of Florida, none of the records regarding the Defendant are located in the 

Southern District of Florida, it does not solicit potential tenants known to be living in the Southern 

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District of Florida, it does not have business ties to the Southern District of Florida, it does not 

have any offices in the Southern District of Florida, one of the Defendant’s members resides in 

Brevard County, Florida and the other member resides in Tennessee. See Exhibit D. Thus, Section 

1391(b)(1) does not confer venue in the Southern District. 

 Turning to Section 1391(b)(2), the Amended Complaint’s conclusory allegations about 

the Defendant’s business transactions and where the alleged conduct occurred are equally baseless, 

contradicted by the attached affidavit and do not establish venue is proper in the Southern District 

of Florida. See generally Delong Equip. Co. v. Washington Mills Abrasive Co., 840 F.2d 843, 845 

(11th Cir. 1988) (“The facts as alleged in the complaint are taken as true to the extent they are 

uncontroverted by defendants’ affidavits.”). “In analyzing whether the Southern District of Florida 

events or omissions are a ‘substantial part’ of the claims, the Court must ‘focus on relevant 

activities of the defendant, not of the plaintiff.’” Robey v. JPMorgan Chase Bank, N.A., 343 F. 

Supp. 3d 1304 (S.D. Fla. 2018) (quoting Jenkins Brick Co. v. Bremer, 321 F.3d 1366, 1371-72 

(11th Cir. 2003)). “Only the defendant’s activities ‘that directly give rise to a claim are relevant. 

And of the places where the events have taken place, only those locations hosting a ‘substantial 

part’ of the events are to be considered.’” Robey, 343 F. Supp. 3d at 1314 (quoting Jenkins Brick, 

321 F.3d at 1371). According to the Amended Complaint, the Defendant has a practice of turning 

away felons who seek to rent units at its Melbourne, Florida complex. See [D.E. 6 at ¶17]. The 

Amended Complaint further asserts that on May 6, 2020, a field tester called the Melbourne, 

Florida location and spoke with someone named Julia. See [D.E. 6 at ¶16]. The field tester 

allegedly asked Julia if his felony conviction would disqualify him from renting an apartment and 

Julia responded affirmatively. See id. 

 Since the only relevant actions are the Defendant’s, it is abundantly clear that the 

substantial activities giving rise to the alleged claim occurred in the Middle District of Florida. 

The Plaintiff cannot even rely on the single telephone call with Julia because it was the tester who 

initiated the call and the Eleventh Circuit has held that a defendant answering a telephone call does 

not subject the defendant to jurisdiction. See e.g. Sun Bank, N.A. v. E.F. Hutton & Co., Inc., 926 

F.2d 1030, 1034 (11th Cir. 1991) (finding no personal jurisdiction where defendant merely 

received and returned phone calls from Florida, during which it made allegedly fraudulent 

statements). See also Hou v. United Airlines Corp., Case #: 8:06-CV-1502-T-27TGW, 2006 U.S. 

Dist. LEXIS 73790 (M.D. Fla. Oct. 10, 2006) (holding the plaintiff calling the defendant from the 

Middle District was insufficient to confer jurisdiction on the Middle District); Fox v. Boucher, 

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794 F.2d 34, 37 (2d Cir. 1986) (“It would offend ‘minimum contacts’ due process principles to 

force [the defendant], a Massachusetts resident, to litigate in a New York forum on the basis of 

one telephone call.”). Finally, the Plaintiff is unable to rely on Section 1391(b)(3) because venue 

is proper in the Middle District of Florida. This Court should consequently dismiss this action 

because the Southern District of Florida is an improper venue. 

II. The Court Should Dismiss The Amended Complaint Because The Plaintiff Lacks 

 Standing 

 “Because a federal court is powerless to act beyond its statutory grant of subject matter 

jurisdiction, a court must zealously insure that jurisdiction exists over a case . . . .” Smith v. GTE 

Corp., 236 F.3d 1292, 1299 (11th Cir. 2001). “Article III of the United States Constitution 

‘restricts the jurisdiction of the federal courts to litigants who have standing to sue.’” PDVSA US 

Litig. Trust v. Lukoil Pan Ams. LLC, CASE NO. 1:18-CIV-20818-GAYLES, 2018 U.S. Dist. 

LEXIS 189801, *10 (S.D. Fla. Nov. 5 2018) (quoting Nicklaw V. Citimortgage, Inc., 839 F.3d 

998, 1001 (11th Cir. 2016)). Standing therefore “is not a mere pleading requirement but rather an 

indispensable part of the plaintiff’s case.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). 

The “irreducible constitutional minimum of standing” comprises three elements: injury in fact, 

causation, and redressability. See id. at 560-61. “Because the question of Article III standing 

implicates subject matter jurisdiction, it must be addressed as a threshold matter prior to the merits 

of any underlying claims.” MSPA Claims 1, LLC, Civil Action No. 18-23165-Civ-Scola, 2019 

U.S. Dist. LEXIS 34386, *5 (S.D. Fla. March 5, 2019) (citing Palm Beach Golf Ctr.-Boca, Inc. v. 

John G. Sarris, D.D.S., P.A., 781 F.3d 1245 (11th Cir. 2015)).

 “A motion to dismiss for lack of subject matter jurisdiction brought under Federal Rule of 

Civil Procedure 12(b)(1) may present either a facial or a factual challenge to the complaint.” 

Murciano v. Fla. Agency for Health Care Admin., Case No. 18-21621-CIV-GAYLES, 2020 U.S. 

Dist. LEXIS 39765, *4 (S.D. Fla. March 9, 2020). “Notwithstanding whether the challenge is 

facial or factual, ‘[t]he burden for establishing federal subject matter jurisdiction rests with the 

party bringing the claim.’” Lambe v. Allgate Fin., LLC, Case No. 16-cv-24407-GAYLES, 2017 

U.S. Dist. LEXIS 113555, *3 (S.D. Fla. July 20, 2017) (quoting Sweet Pea Marine, Ltd. v. APJ 

Marine, Inc., 411 F.3d 1242, 1247 (11th Cir. 2005)). When, as here, the attack on standing is 

facial, the Plaintiff’s allegations are taken as true for the purposes of the motion. But the Plaintiff 

“must allege facts that affirmatively and plausibly suggest it has standing to sue.” Amidax Trad. 

Grp. v. S.W.I.F.T. SCRL, 631 F.3d 140, 145 (2d Cir. 2011). The Court cannot “speculate 

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concerning the existence of standing, nor should we imagine or piece together an injury sufficient 

to give plaintiff standing when it has demonstrated none.” Miccosukee Tribe of Indians of Fla. v. 

Florida State Ath. Comm’n, 226 F.3d 1226, 1229-30 (11th Cir. 2000). Reviewing the Amended 

Complaint’s clearly establishes the Plaintiff failed to satisfy its burden so it has no standing. 

 A. The Plaintiff Lacks Standing To Sue On Behalf Of Its’ Members 

 As stated above, the Plaintiff is suing the Defendant because it allegedly violated 42 U.S.C. 

§ 3604(d) when contacted by a tester. That section makes it illegal “[t]o represent to any person 

because of race, color, religion, sex, handicap, familial status, or national origin that any dwelling 

is not available for inspection, sale, or rental when such dwelling is in fact so available.” Although 

testers, by definition, do not have a “bona fide” intent to rent – therefore precluding standing under 

Section 3604(a) - the United States Supreme Court concluded that a “tester who has been the object 

of a misrepresentation made unlawful under § 804(d) has suffered injury in precisely the form the 

statute was intended to guard against, and therefore has standing to maintain a claim for damages 

under the [FHA’s] provisions.” Havens Realty Corp. v. Coleman, 455 U.S. 363, 364 (1982) 

(emphasis added). Applying these principles, the Supreme Court held in Havens that the black 

tester – who was falsely told that housing was unavailable – had standing to sue individually based 

on the injury to her statutory right to truthful housing information under Section 3604(d). See id. 

at 374. On the other hand, the white tester in Havens, who was correctly told that housing was 

available, did not have standing because he did not allege “that he was the victim of a 

discriminatory misrepresentation,” and therefore had not pled a cause of action under Section 

3604(d). See id. at 374-75. 

 In light of Havens, an association such as the Plaintiff would only have standing to sue on 

behalf of its alleged members when: “(a) its members would otherwise have standing to sue in 

their own right; (b) the interests it seeks to protect are germane to the organization’s purpose; and 

(c) neither the claim asserted nor the relief requested requires the participation of individual 

members in the lawsuit.” Doe v. Stincer, 175 F.3d 879, 882 (11th Cir. 1999) (quoting Hunt v. 

Wash. State Apple Adver. Comm’n, 432 U.S. 333, 343 (1977)). Here, the Amended Complaint 

does not allege the Plaintiff is a membership organization; that the “tester” is a member; or that 

the Plaintiff is bringing suit on a member’s behalf. But in the event the Plaintiff nevertheless 

attempts to claim associational standing, the tester in the case before this Court lacks standing for 

the same reasons as the white tester in Havens. The tester did not make a bona fide offer to rent 

which means it did not have standing under Section 3604(a). See Houston v. Marod Supermarkets, 

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Inc., 733 F.3d 1323, 1333 (11th Cir. 2013) (“a plaintiff seeking redress for an alleged refusal to 

sell or to rent housing on the basis of race must have made an actual ‘bona fide’ offer—not a mere 

‘tester’ Congress said so expressly in § 804(a) of the FHA.”). Furthermore, and viewed in the 

light most favorable to the Plaintiff, the tester was truthfully told that his felony conviction 

disqualified him from available housing – not that he was falsely told that available housing was 

unavailable. Since the individual the tester spoke to did not make misrepresentations about the 

availability of units, Section 3604(d) also does not confer standing. See Havens, 455 U.S. at 373. 

The Plaintiff has consequently failed to establish “tester” standing under Havens. As such, the 

tester did not suffer a cognizable injury under the FHA and the Plaintiff lacks standing to sue on 

the tester’s behalf. This Court should consequently dismiss the Amended Complaint. 

B. The Plaintiff Lacks Standing To Sue On Its Own Behalf 

 Regarding organizational standing, the United States Supreme Court held in Havens that 

an organization may establish Article III standing if it shows “a concrete and demonstrable injury 

to the organization’s activities” that is “more than simply a setback to the organization’s abstract 

interests.” Following Havens, the United States Court of Appeals for the Eleventh Circuit has held 

an organization only has standing to sue on its own behalf if “the defendant’s illegal acts impair 

its ability to engage in its projects by forcing the organization to devote resources to counteract 

those illegal acts.” Common Cause/Georgia v. Billups, 554 F.3d 1350 (11th Cir. 2009) (emphasis 

added). For the reasons stated in Part III, the Amended Complaint does not state a plausible claim 

of unlawful discrimination so the Court does not need to consider if the Plaintiff adequately pled 

a “diversion of resources.” 

 Nevertheless, even if this Court considers the Amended Complaint’s “diversion of 

resources” allegations, those arguments like the rest of the Amended Complaint, are baseless. To 

qualify as a cognizable Article III injury, the organization’s diverted resources must be 

independent of the cost of detecting and challenging allegedly unlawful conduct. See Florida State

Conference of N.A.A.C.P. v. Browning, 522 F.3d 1153, 1166 (11th Cir. 2008) (“plaintiffs cannot 

bootstrap the cost of detecting and challenging illegal practices into injury for standing purposes”). 

For instance, in Havens the organizational plaintiff, HOME, alleged it was a housing nonprofit 

offering housing counseling and referrals. See Havens, 455 U.S. at 363. A landlord discriminated 

against HOME’s clients by falsely claiming that housing was unavailable which forced HOME to 

expend additional resources to find these clients alternative housing. See id. at 379. HOME was 

also forced to divert resources from its counseling efforts by using paired black and white testers 

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to confirm the landlord’s discriminatory policies, and engage in litigation. See id. at 368. 

 Unlike the well-plead allegations in Havens about how and why the landlord’s racial 

discrimination required HOME to divert resources from housing referrals and counseling to testing 

and litigation, the Amended Complaint merely contains impermissible “naked assertions devoid 

of further factual enhancement.” Franklin v. Curry, 738 F.3d 1246, 1251 (11th Cir. 2013). The 

Plaintiff offers no affirmative, plausible allegations – even on a general level - about how the 

Defendant’s alleged practice of rejecting an unsubmitted rental application impaired the Plaintiff’s 

“counseling,” “education” and “outreach” and “projects.” See [D.E. 6 at ¶31]. Tellingly, the 

Amended Complaint lacks any details about these interrupted services or “projects,” what 

“resources” were “diverted,” or why the Plaintiff was “forced” to pursue litigation. More 

importantly, the tester made the call on May 6, 2020, the Plaintiff informed the State of Florida 

on June 23, 2020, that it did not have expenses and the Plaintiff commenced litigation on June 26, 

2020. See Exhibit C. See generally [D.E. 1]. By its own admission to the State of Florida, the 

Plaintiff had no expenses as of June 23, 2020, and even if it incurred any expenses within the 3 

days before it filed suit, no allegation establishes the amount of funds diverted were significant 

enough to meet the Article III test that an organization’s injury be “palpable.” Without even 

general allegations on these issues, the Plaintiff cannot establish causation or redressability. It 

would also be unjust for the Plaintiff’s vague comment about a diversion of resources to force the 

Defendant to incur litigation expenses when the Plaintiff said 3 days before this lawsuit 

commenced that it has no expenses. 

 Indeed, the Amended Complaint’s only allegations of ultimate fact prove litigation is the 

Plaintiff’s raison d’être. It is easily inferred from Paragraph Sixteen’s description of the tester’s 

conversation with “Julia” that their entire exchange was extremely brief. Even if he spent an 

additional minute memorializing the words that were exchanged, the “injury” suffered is best 

described as de minimus, not palpable. See Havens Realty Corp., 455 U.S. at 379 (stating the 

injury must perceptively impair organization’s ability to provide other services). More 

importantly, because the pleading describes no costs beyond making that phone call and the 

litigation costs – a practice rejected in this circuit as impermissible bootstrapping insufficient to 

establish organizational injury – the Plaintiff has not established it suffered an injury, that the 

Defendant caused it, or that this Court can redress it. See Browning, 522 F.2d at 1166. This is 

another reason why the Court should dismiss the Amended Complaint. See also Turlock Irr. Dist. 

v. FERC, 786 F.3d 18, 24 (D.C. Cir. 2015) (finding organization “does not allege impairment of 

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its ability to provide services” when it alleges “only impairment of its advocacy”); Shield Our 

Constitutional Rights & Justice v. Hicks, 2009 U.S. Dist. LEXIS 103006, *13 (D. Md. Nov. 4, 

2009) (“Plaintiffs appear to allege that Shield suffered injury as a result of having to divert its 

resources from other programs in order to assist Plaintiff Huang. However, Plaintiffs fail to allege 

any specific facts to substantiate this bald allegation. . . . Plaintiffs’ conclusory assertions are 

insufficient to establish organizational standing.”). 

 Separately, there are no allegations supporting a “real or immediate threat of future injury” 

that would support the Plaintiff having standing to seek injunctive relief. See Am. Civil Liberties 

Union of Fla. v. Miami-Dade Cty. School Bd., 557 F.3d 1177, 1197 (11th Cir. 2009) (for injunctive 

relief, “there is either an imminent injury or there is not. If there is not, there is no standing. . . . All 

the plaintiff has to do is describe the threatened injury and why it is imminent. The penalty for failing 

to do so is dismissal for lack of standing”). Indeed, the Amended Complaint’s conclusory allegation 

of “irreparable loss and injury and a real and immediate threat of future discrimination” is 

unsupported by any factual allegations, and therefore is precisely the type of conclusory, “thedefendant-unlawfully-harmed-me” pleading deficiency disapproved by the United States Supreme 

Court. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 

III. This Court Should Dismiss The Amended Complaint Because It Fails To State A 

 Claim for Disparate Impact Discrimination 

 When a defendant files a motion to dismiss for failure to state a claim under Federal Rule 

of Civil Procedure 12(b)(6), the court must determine if the plaintiff has alleged “enough facts to 

state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 

570 (2007). The complaint must contain “factual content that allows the court to draw the 

reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 

678. “Mere labels and conclusions or a formulaic recitation of the elements of a cause of action 

will not do, and a plaintiff cannot rely on naked assertions devoid of further factual enhancement.” 

Franklin, 738 F.3d at 1251. To survive, a plaintiff must “raise a right to relief above the speculative 

level” and “nudge[] their claims across the line from conceivable to plausible.” Twombly, 550 U.S. 

at 547. Although courts are required to accept allegations as true and make all plausible inferences 

in the plaintiff’s favor, courts “are not bound to accept as true a legal conclusion couched as a 

factual allegation.” Id. at 555. 

 Cherry-picking language from Texas Department of Housing & Community Affairs v. 

Inclusive Communities Project, Inc., 135 S. Ct. 2507 (2015), the Plaintiff contends statistical 

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evidence is unnecessary to establish disparate impact liability because the Supreme Court stated 

constitutional problems would occur if liability was only imposed based on a statistical disparity. 

See [D.E. 6 at ¶36]. Based on the Plaintiff’s flawed interpretation, the Amended Complaint’s 

entire argument is that this Court should hold the Defendant allegedly denying housing to felons 

is discriminatory because a greater percentage of the nation’s total population of Black and 

Hispanic individuals are convicted of felonies more often than Caucasians. See e.g. [D.E. 6 at ¶¶1-

2 and 10-11]. The Amended Complaint then disregards Twombly’s pleading requirements and, 

without any supporting facts, makes impermissible and formulaic legal conclusions that 

“Defendant’s practice or otherwise policy regarding the criminal history of individuals seeking to 

rent,” has “a disparate impact on Black and Hispanic individuals and otherwise fails to serve a 

substantial, legitimate, nondiscriminatory interest of the housing provider.” See [D.E. 6 at ¶30]. 

The Amended Complaint next asserts the Plaintiff has been aggrieved, its goals thwarted, has 

suffered damages and will continue to suffer damages in the future. See e.g. [D.E. 6 and ¶¶46-47]. 

These boilerplate allegations and conclusions fail to state a cognizable disparate impact housing 

discrimination claim. Additionally, the Plaintiff’s argument and conclusions are fundamentally 

flawed and have been repeatedly rejected. 

 Claims of disparate impact discrimination under the Fair Housing Act are subject to 

heightened pleading standards. Pursuant to the United States Supreme Court’s decision in 

Inclusive Communities Project, Inc., racial imbalance, standing alone, does not establish a prima 

facie claim of disparate impact housing discrimination. Thus, “it is not enough to simply allege 

that there is a disparate impact . . . or point to a generalized policy that leads to such an impact.” 

Smith v. City of Jackson, 544 U.S. 228, 241 (2005)). Instead, “[d]isparate-impact liability under 

the Fair Housing Act requires proof that a policy or practice of the defendant has a 

‘disproportionately adverse effect on minorities.’” City of Miami Gardens v. Wells Fargo & Co., 

931 F.3d 1274, 1296 (11th Cir. 2019) (quoting Inclusive Cmtys., 135 S. Ct. at 2513). “Without 

adequate safeguards at the prima facie stage, disparate-impact liability might cause race to be used 

and considered in a pervasive way and ‘would almost inexorably lead’ governmental or private 

entities to use ‘numerical quotas,’ and serious constitutional questions then could arise.” Inclusive 

Cmtys., 135 S. Ct. at 2523. “Courts must therefore examine with care whether a plaintiff has made 

out a prima facie case of disparate impact and prompt resolution of these cases is important. 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. Directly rejecting 

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the Amended Complaint’s argument that the Plaintiff can satisfy its burden merely by stating Black 

and Hispanic people are convicted nationally more than Caucasians, the Supreme Court remarked: 

[d]ifficult questions might arise if disparate-impact liability under the FHA caused 

race to be used and considered in a pervasive and explicit manner to justify 

governmental or private actions that, in fact, tend to perpetuate race-based 

considerations rather than move beyond them. Courts should avoid interpreting 

disparate-impact liability to be so expansive as to inject racial considerations into 

every housing decision. 

Id. at 2524. “The limitations on disparate-impact liability discussed here are also necessary to 

protect potential defendants against abusive disparate-impact claims.” Id. 

 Based on the concerns mentioned above, a plaintiff must satisfy three requirements to plead 

a claim for disparate-impact liability. “First, a prima facie case requires ‘the identification of a 

specific, facially-neutral . . . practice’ or policy.” City of Miami Gardens, 931 F.3d at 1296 

(quoting EEOC v. Stone Crab, Inc., 220 F.3d 1263 1268 (11th Cir. Aug. 4, 2000)). “Second, the 

plaintiff must establish the existence of a ‘significant statistical disparity’ between the effects of 

the challenged policy or practice on minorities and non-minorities.” City of Miami Gardens, 931 

F.3d at 1296 (quoting Joe’s Stone Crab, 220 F.3d at 1274). “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.” Inclusive Cmtys., 135 S. Ct. at 2523. 

Furthermore, a disparate-impact claim “must fail if the plaintiff cannot point to a defendant’s 

policy or policies causing that disparity.” Id. “Third, in the light of the ‘serious constitutional 

questions that might arise . . . if such liability were imposed based solely on a showing of statistical 

disparity,’ a plaintiff proceeding on a disparate-impact theory must also establish a ‘robust 

causality’ connecting the challenged policy and the statistical disparity.” City of Miami Gardens, 

931 F.3d at 1296 (quoting Inclusive Cmtys., 135 S. Ct. at 2512). “A robust causality requirement 

ensures that ‘[r]acial imbalance . . . does not, without more, establish a prima facie case of disparate 

impact’ and thus protects defendants from being held liable for racial disparities they did not 

create.” Inclusive Cmtys., 135 S. Ct. at 2523 (citing Wards Cove Packing Co. v. Atonio, 490 U. S. 

642, 653 (1989), superseded on other grounds, 42 U. S. C. §2000e-2(k)). The Plaintiff has not 

satisfied its’ burden. 

 A. The Amended Complaint Fails To Utilize Relevant Statistics And Data

 As stated above, the Eleventh Circuit held in City of Miami Gardens that “the plaintiff must 

establish the existence of a ‘significant statistical disparity’ between the effects of the challenged 

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policy or practice on minorities and non-minorities.” 931 F.3d at 1296. The Eleventh Circuit has 

held a plaintiff fails to satisfy that requirement if the plaintiff did not utilize statistics from the 

relevant geographic area. For instance, in Oviedo Town Ctr. II, L.L.L.P. v. City of Oviedo, 759 

Fed. Appx. 828 (11th Cir. 2018), real estate developers in the Oviedo Town Center sued the City 

of Oviedo (the “City”) for violating the Fair Housing Act and asserted the City changing its utility 

rate policies caused a disparate impact on minorities. According to the Eleventh Circuit, “in order 

to establish a prima facie case of disparate impact, the appellants would have needed to draw a 

comparison between (a) the percentage of racial minorities occupying multifamily properties 

impacted by the 2012 Policy throughout the City of Oviedo and (b) the percentage of nonminorities living in such properties, again throughout the City of Oviedo.” Oviedo Town Ctr. II, 

L.L.L.P., 759 Fed. Appx. at 835. “This kind of citywide comparative analysis would be necessary 

because, since the policy impacts the whole city, the whole city would need to be evaluated before 

we could determine that the claimed impact might have disparately fallen on certain insular 

groups.” Id. Instead of submitting that information, the plaintiffs relied on data showing the 

percentage of racial minority heads of households in the Oviedo Town Center was greater than the 

percentage of racial minority households throughout the City of Oviedo. See id. at 833. The 

Eleventh Circuit held “this data revealed only that more racial minorities live in Oviedo Town 

Center than lived in the rest of the City of Oviedo. It does not establish a disparate impact, let 

alone any causal connection between the 2012 Policy and the disparate impact.” Id. at 835. The 

Eleventh Circuit said its evaluation “need go no further because this necessarily fails to make out 

a prima facie case.” Id. at 836. “[T]he developers here have ‘completely failed to present relevant 

comparative evidence’ and ‘the district court was right to reject [the] disparate impact claim.’” Id.

(quoting Schwarz v. City of Treasure Island, 544 F.3d 1201, 1218 (11th Cir. 2008)). 

 Like the developers in Oviedo Town Ctr. II, L.L.L.P., the Plaintiff in this action has also 

failed to satisfy its burden. In addition to having boilerplate allegations and conclusions, the 

Amended Complaint is devoid of relevant statistics or data and a causal connection. Pursuant to 

Oviedo Town Ctr. II, L.L.L.P, the Plaintiff would have needed to draw a comparison between (a) 

the percentage of African Americans and Hispanic individuals occupying apartments at the Palm 

Bay Grand and (b) the percentage of African Americans and Hispanic individuals who applied for 

housing at Palm Bay Grand. Disregarding the binding precedent, the Amended Complaint merely 

relies on HUD Guidelines, national arrest and incarceration data from the Bureau of Justice 

Statistics, and the U.S. Department of Commerce’s data from 2010 about the total number of 

Case 1:20-cv-22665-DPG Document 8 Entered on FLSD Docket 08/24/2020 Page 12 of 21
minorities in the United States compared to non-minorities. See [D.E. 6 at ¶¶10-11]. More 

specifically, even though the Amended Complaint contends statistics are not required, and despite 

this lawsuit concerning whether discrimination occurred in 2020 at a property in Melbourne, 

Florida, the Amended Complaint perplexingly relies on 2010 national statistics for its’ argument 

that “63% of the population is White, 13% of the population is Black, 16% of the population is 

Hispanic.” [D.E. 6 at ¶10]. Not only are 2010 national averages irrelevant because they do not 

pertain to the appropriate geographic area, the 2010 national averages are significantly different 

from the U.S. Census Bureau’s 2019 statistics for Melbourne. According to the U.S. Census 

Bureau, in 2019 Brevard County, which is where Melbourne is located, had a population that was 

82.7% White.4

 Focusing on Melbourne, in 2019 it had a population that was 78.9% White, which 

is 15.9% greater than the 2010 national average.5 Regarding minorities, the 2019 Melbourne 

statistics for Black and Hispanic individuals are lower than the 2010 national averages. In 2019 

Melbourne’s population had 2% fewer Black people and 4.5% fewer Hispanics than the 2010 

national averages. See id. Those differences are important because the U.S. Supreme Court and 

Eleventh Circuit require statistics and data to be comparative to the property in question. 

 The Plaintiff’s reliance on nationwide arrest and incarceration data and statistics is equally 

misplaced because the total number of people incarcerated in the United States, or even the total 

just for Florida, is irrelevant to this lawsuit because the Defendant is not being sued for a policy it 

imposed on the entire Country or on individuals who are incarcerated. Instead, the issue before 

this Court is whether the Defendant’s policy at a Melbourne property discriminates against 

individuals who are Black or Hispanic, are not incarcerated and are interested in living at the 

property. None of the Plaintiff’s sources or data contains pertinent information such as the 

percentage of felons living in Melbourne compared to Melbourne’s total population, the races of 

people living in Melbourne who are and are not felons, or any information regarding the races or 

criminal histories of the people who are living at, or merely applied to, the Melbourne property. 

The Amended Complaint has not even alleged the property’s racial composition is not 

representative or either Melbourne or Brevard County. Thus, pursuant to the Eleventh Circuit 

prohibiting a “bald assumption” with “no comparative data at all,” the Plaintiff has failed to plead 

that a robust causal connection shows the Defendant’s policy of excluding felons has caused a 

disparate impact. This is another reason why the Court should dismiss the Amended Complaint. 

 

4 See https://data.census.gov/cedsci/profile?g=0500000US12009. 5 See https://www.census.gov/quickfacts/fact/table/melbournecityflorida/PST045219

Case 1:20-cv-22665-DPG Document 8 Entered on FLSD Docket 08/24/2020 Page 13 of 21
See Oviedo Town Ctr. II, L.L.L.P., 759 F. App’x at 835. See also Schwarz v. City of Treasure 

Island, 544 F.3d 1201, 1218 (11th Cir. 2008) (“Gulf Coast presented no comparative data at all, 

relying instead on the bald assumption that because the halfway houses at issue in this case cannot 

be used for short-term group living, the occupancy-turnover rule must necessarily create a 

disparate impact on the handicapped. . . . Because Gulf Coast has completely failed to present 

relevant comparative evidence, the district court was right to reject its disparate impact claim.”).

 B. The Amended Complaint Does Not Satisfy The Supreme Court’s Robust 

 Casualty Standard 

 Along with omitting relevant statistics and data, the Amended Complaint also fails to allege 

a causal link between the policy and statistical disparities as required by the Supreme Court’s 

“robust causation standard.” The Amended Complaint would have needed to plead that the 

Defendant’s policy of allegedly denying applications submitted by felons has caused a disparate 

impact at that Melbourne, Florida location. Instead, the Amended Complaint merely repeatedly 

argues the policy is discriminatory because individuals affected by it are minorities and in 2010 

the national averages for Black and Hispanic people convicted of felonies was greater than the 

number of Caucasians who were convicted. Since the Plaintiff has not asserted any data showing 

the racial makeup of convicted felons in the Defendant’s actual or potential tenant pool of 

Melbourne, Florida, the Plaintiff is apparently hoping that extrapolation of nationwide data 

regarding arrests and incarcerations will yield parallel results at the community level and in 

particular the property in Melbourne, Florida where the alleged discrimination took place. Such 

speculation, however, hardly establishes the required “robust” causation necessary to state a claim 

for disparate impact regarding felonies in Melbourne. Nor is this extrapolation even possible 

because the 2019 statistics for Melbourne are significantly different from the 2010 national 

averages. Furthermore, the Honorable Jose A. Gonzalez, Jr. of the United States District Court for 

the Southern District of Florida already rejected the argument that all policies have a disparate 

impact against minorities. See E.E.O.C. v. Carolina Freight Carriers Corp., 723 F. Supp. 734, 

752 (S.D. Fla. 1989) (“plaintiff’s position that minorities should be held to lower standards is an 

insult to millions of honest Hispanics.”). The Amended Complaint therefore fails to plead a cause 

of action that the Defendant allegedly denying housing to felons caused a disparate impact at that 

Melbourne, Florida location. This is yet another reason why the Plaintiff has failed to satisfy its 

burden and this Court should dismiss the Amended Complaint. See also Inclusive Communities 

Project, Inc. v. Heartland Cmty. Ass’n, Inc., 399 F. Supp. 3d 657, 667 (N.D. Tex. 2019) (granting 

Case 1:20-cv-22665-DPG Document 8 Entered on FLSD Docket 08/24/2020 Page 14 of 21
motion to dismiss disparate impact housing discrimination claim for failure to plead robust 

causation between policy and statistical racial disparities). 

C. Courts Have Held Denying Housing To Felons Can Serve A Legitimate 

 Purpose

 As stated above, the Amended Complaint contends a blanket denial of housing to felons is 

always discriminatory. However, courts throughout the United States have held defendants do not 

violate the Fair Housing Act when their race neutral policies result in denying housing to felons. 

For instance, in Carson v. Hernandez, 2018 U.S. Dist. LEXIS 185782 (N.D. Tex. July 26, 2018), 

the plaintiff sued VOA/Prairie Creek Village Apartments and its manager, Sofia Hernandez, 

alleging violations of the Fair Housing Act. See Carson v. Hernandez, CIVIL CASE NO. 3:17-

CV-1493-L-BK, 2018 U.S. Dist. LEXIS 185782 *1 (N.D. Tex. July 26, 2018). The plaintiff in 

that case, like the Plaintiff in the instant action, contended the facility denying his rental application 

because of felony convictions “‘amounts to a ban against African-Americans and has an adverse 

discriminatory effect,’ because, as an African American, he ‘is part of a disproportionate number 

of those convicted and imprisoned and convicted in Texas.’” Carson, 2018 U.S. Dist. LEXIS 

185782 at *2. In support of that argument the plaintiff asserted: 

In 2014, African-American [sic] comprised approximately 36 percent of the total 

population, yet [sic] incarcerated at a rate nearly three times their proportion of the 

General Population. The Defendants [sic] Practice and Policy that deny Housing to 

those Released from Prison is critical for any successful reentry to society, and such 

policy is equally disparate and discriminates against African-Americans. 

This in conjunction with the racial aspect of those that are convicted in Texas, in 

2005, the racial conviction rate in Texas per 100,000 of the Population came to: 

‘Whites 667; Blacks 3167; Hispanics 830.’ . . . The Defendants Policy represents a 

discriminatory policy. 

Id. at *3-4 

 When ruling on the defendant’s motion to dismiss the United States District Court for the 

Northern District of Texas noted the “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 to those released from prison and cites a purported disparate 

impact on African Americans based on statistical data.” Id. at *6. That court further stated 

“[a]ssuming, arguendo, that Defendants had a policy of rejecting applicants with felony 

convictions, regardless of the age of those convictions, Plaintiff has wholly failed to demonstrate 

a ‘robust’ causal connection between the alleged policy or practice and the perceived adverse 

Case 1:20-cv-22665-DPG Document 8 Entered on FLSD Docket 08/24/2020 Page 15 of 21
discriminatory effect.” Id. This is because “a policy of excluding convicted felons from tenancy 

did not cause the underlying disparity Plaintiff cites, to-wit, the historical disproportion of African 

Americans convicted of felony offenses in the United States. [] In any event, such a policy is not 

‘otherwise unjustified by a legitimate rationale,’ as it is obviously pertinent to maintaining a crimefree environment.” Id. at *7. Since the complaint contained “no facts that would support the 

plausible inference of a ‘robust’ causal link between a specific policy or custom of Defendant and 

an adverse effect on African Americans,” the court dismissed the complaint with prejudice See 

id. at *7, 11. Just like the complaint in that case, the Plaintiff’s Amended Complaint should be 

dismissed because it lacks data showing (1) the alleged policy excluding convicted felons from the 

subject housing causes a disparate impact and (2) there is a robust causal connection. 

 The United States District Court for the Southern District of New York reached the same 

conclusion. In McKins v. Pye, 2019 U.S. Dist. LEXIS 123450 (S.D.N.Y. July 22, 2019), an 

African American male was arrested in 1983 and convicted in 1984. In 2018 an apartment 

complex informed him that a unit was available to rent but his application was denied because of 

his prior arrest and conviction. The district court held those allegations failed to establish a 

disparate-impact claim under the Fair Housing Act because they do not “plead facts demonstrating 

that [the apartment complex] has a policy or practice that has caused or predictably will cause a 

discriminatory effect.” McKins, 2019 U.S. Dist. LEXIS 123450 at *5. See also Hall v. Phila. 

Hous. Auth., 2019 U.S. Dist. LEXIS 60679 *10-11 (E.D. Pa. April 9, 2019) (dismissing a 

complaint because it was permissible to have a policy that rejected all applicants who had a 

household member who had been convicted of a homicide-related offense); Evans v. UDR, Inc., 

644 F. Supp. 2d 675, 691 (E.D.N.C. 2009) (“the FHAA clearly does not prohibit landlords from 

denying a person occupancy on the basis of his criminal record”). Thus, the premise advanced by 

the Plaintiff in the instant action does not support a claim as a matter of law and the Court should 

dismiss the Amended Complaint with prejudice. 

D. The Amended Complaint’s Reliance On HUD Guidance Is Irrelevant 

 As stated above, the Amended Complaint contends this Court should hold a denial of 

housing to felons is discriminatory based on HUD’s Guidance from 2016. See [D.E. 6, Page 7]. 

The Plaintiff’s reliance on, and citations to the 2016 HUD Guidance is woefully misplaced. The 

HUD Guidance does not say an entity violates the FHA by utilizing a policy that denies all rental 

applications submitted by felons. The HUD Guidance actually says blanket denials, like any other 

challenged policy, that are shown to have a discriminatory effect would violate the FHA. The 

Case 1:20-cv-22665-DPG Document 8 Entered on FLSD Docket 08/24/2020 Page 16 of 21
HUD Guidance further explains that a policy which implements an “individualized assessment” 

of criminal record “is likely to have a less discriminatory effect.” See HUD Guidance at Page 7. 

 Disregarding what the HUD Guidance states, the Plaintiff has stretched HUD’s proposition 

and contends a blanket prohibition regarding an applicant’s “felony” criminal history “is unlawful 

under the Fair Housing Act” because all blanket prohibitions are allegedly discriminatory. See

[D.E. 6 at ¶28]. Based on its misconception about what the HUD Guidance says, the Plaintiff 

asserts Palm Bay Grand should be required to revise the way it uses criminal records. See [D.E. 

6 at ¶ 32]. However, HUD’s Guidance cannot be stretched to conclude that every policy which 

omits an individualized assessment is discriminatory. Any particular race-neutral policy may only 

be discriminatory when shown statistically to have caused a disparate impact on a protected class. 

The Plaintiff’s statement regarding the HUD Guidance is therefore incorrect, its application to the 

facts before this Court reaches an unsubstantiated conclusion and the alleged failure to conduct an 

individualized assessment of an applicant’s background does not support a claim for disparate 

impact discrimination. 

 Not only has the Plaintiff misconstrued HUD’s 2016 Guidance, its reliance on that 

document is immaterial because Agency Guidance is not the law. Courts allow an agency “a 

measure of deference proportional to 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.” Christopher v. SmithKline Beecham Corp., 567 U.S. 142, 159 (2012) 

(quoting United States v. Mead Corp., 533 U. S. 218, 228 (2001)). The United States Court of 

Appeals for the Eleventh Circuit has previously held Skidmore affords a “lesser,” and “more 

limited” degree of deference than Chevron. See Rodriguez v. Farm Stores Grocery, Inc., 518 F.3d 

1259, 1268 n.5 (11th Cir. 2008). Thus, an agency’s interpretation has the “power to persuade” but 

“lack[s] the power to control.” Skidmore v. Swift & Co., 323 U. S. 134, 1140 (1944). 

 In Stein v. Paradigm Mirasol, LLC, 586 F.3d 849 (11th Cir. 2009), the Eleventh Circuit 

discussed how much weight should be given to HUD Guidelines. According to the Eleventh 

Circuit, “[b]ecause the HUD Guidelines are not ‘published regulations subject to the rigors of the 

Administrative Procedure Act, including public notice and comment,’ they do not deserve full 

Chevron deference.” Stein, LLC, 586 F.3d at *6. The Eleventh Circuit explicitly said “great 

weight” was “far more weight than we can give them under Skidmore v. Swift & Co., 323 U.S. 

134, 140 (1944).” Stein, 586 F.3d at n.4. In fact, the Eleventh Circuit said “[l]ittle or no deference 

is due to the guidelines,” because “[n]o reasoning at all, much less thorough reasoning, is provided” 

Case 1:20-cv-22665-DPG Document 8 Entered on FLSD Docket 08/24/2020 Page 17 of 21
for a proposition and the guidelines were internally inconsistent. Id. at n.6. 

 Finally, even if the HUD Guidance was binding on this Court, which it is not, the HUD 

Guidance heavily relies on the United States Court of Appeals for the Eighth Circuit’s decision in 

Green v. Missouri Pac. R.R. Co., 523 F. 2d 1290 (8th Cir. 1975), for the proposition that blanket 

denials for “any conviction,” could support a disparate impact claim. In Green, the plaintiff sued 

for employment discrimination based on the employer’s policy of disqualifying all job applicants 

with a conviction for any crime other than a minor traffic offense. See Green, 523 F.2d at 1292. 

The Eighth Circuit held the company’s policy violated Title VII because it could not meet the 

business necessity test. See id. at 1296-98. 

 Not only does the case before this court not concern employment discrimination, after 

HUD issued the 2016 Guidance the Eighth Circuit clarified Green in Eggers v. Wells Fargo Bank 

N.A., 899 F.3d 629, 634-35 (8th Cir. 2018). In Eggers the Eighth Circuit discussed Green and said 

blanket denials for all for employment applicants convicted of theft crimes did not support a prima 

facie claim for disparate impact discrimination. Since the Eighth Circuit has modified Green, 

HUD’s reliance on Green is no longer justified. 

 Despite the Eighth Circuit using Eggers to clarify Green, the Plaintiff has misconstrued 

Green to mean that any policy which excludes applicants on the basis of any conviction is 

prohibited. As stated above, that is not the law in the Eighth Circuit and, more importantly, it is 

also not the law in the United States District Court for the Southern District of Florida. In EEOC 

v. Carolina Freight Carriers Corp., 723 F. Supp. 734 (S.D. Fla. 1989) Francisco Rios was 

convicted of a felony and sentenced to prison. When he applied to work at Carolina Freight 

Carriers Corp. he lied on the application and said he was never convicted of a crime other than a 

traffic offense. See EEOC, 723 F. Supp. at 737. Although he was initially hired, the district 

manager eventually fired him because of his conviction. See id. at 742, 749. 

 The Equal Employment Opportunity Commission (“EEOC”) subsequently sued Carolina 

Freight Carriers Corp. in the Southern District of Florida for maintaining a discriminatory 

employment practice. See id. at 750. Relying on Green, the EEOC asserted Carolina Freight 

Carriers Corp. refusing to employ people with a felony conviction had a disparate impact upon 

Hispanics. See id. The Southern District of Florida rejected that argument because 

While Green could be limited to those situations where the linkage between the 

employer’s business needs and the conviction policy is minimal, the case may also 

be broadly read to bar all employment conviction policies. With all due respect to 

the members of the Eighth Circuit, their holding is ill founded. 

Case 1:20-cv-22665-DPG Document 8 Entered on FLSD Docket 08/24/2020 Page 18 of 21
Id. at 752. The Southern District further said the EEOC failed to establish that any imbalance in 

the number of Hispanic drivers was caused by the conviction bar. See id. at 751. Nor did the 

EEOC establish a “significant number” of Hispanic drivers were disqualified because of the 

conviction policy or deterred from applying because of the policy. See id. When entering a 

judgment against the EEOC, The Honorable Jose A. Gonzalez, Jr. stated “plaintiff’s position that 

minorities should be held to lower standards is an insult to millions of honest Hispanics.” Id. at 

752, 756. He also stated the following, which contradicts this action’s Amended Complaint: 

[a] past criminal record affords no basis to predict that a given person will commit 

a future crime. But the evidence indicates that a group of persons who have been 

convicted of serious crimes will have a higher incidence of future criminal conduct 

than those who have never been convicted. 

E.E.O.C., 723 F. Supp. at 753. Accordingly, the Plaintiff’s Amended Complaint is fundamentally 

flawed because it is based on Green, a non-binding decision from the Eighth Circuit, that is 

contrary to that Circuit’s law governing criminal background policies in the disparate impact 

discrimination context. More importantly, the Southern District of Florida has rejected Green. 

The Amended Complaint consequently fails to state a cause of action and should be dismissed. 

 Other federal appellate courts have also held a plaintiff cannot rely on agency guidelines 

to establish disparate-impact liability. For instance, in Hardie v. NCAA, 876 F.3d 312 (9th Cir. 

2017), the plaintiff, who was an African American, sued the National Collegiate Athletic 

Association (“NCAA”) because the NCAA excluded individuals with felony convictions from 

coaching at youth athletic tournaments. The plaintiff contended that excluding all individuals with 

felony convictions has a disparate impact on African Americans. See id. at 315, 318. In addition, 

the plaintiff in that case, like the Plaintiff in the case before this Court, relied on EEOC Guidelines 

to avoid discriminating based on race. See id. at 323. The EEOC Guidelines were similar to 

HUD’s and recommended employers adopt individualized assessments as a tool to avoid Title VII 

liability in the employment context. See id. 

 On appeal to the United States Court of Appeals to the Ninth Circuit, the NCAA asserted 

excluding coaches with felony convictions served the interest in protecting children and the 

integrity of the NCAA’s recruiting process because “even after many years have passed, the risk 

of future arrest for someone who has a criminal record may remain higher than the risk of future 

arrest for someone who has never been arrested.” See id. at 321. The United States Court of 

Appeals for the Ninth Circuit ultimately rejected the plaintiff’s reliance on the EEOC Guidelines 

and affirmed the order appealed. See id. at 323. That decision consequently provides an additional 

Case 1:20-cv-22665-DPG Document 8 Entered on FLSD Docket 08/24/2020 Page 19 of 21
reason why this Court should reject the Amended Complaint’s flawed assertion that failing to 

conduct HUD’s suggested individualized assessment constitutes discrimination. 

IV. The Plaintiff’s Citations Are Improper And Do Not Plead A Cause Of Action 

 Divisions of the Southern District of Florida have held it is inappropriate for complaints to 

contain citations. See e.g. Drummond v. Zimmerman, CASE NO. 19-81532-CIV-SINGHAL, 

2020 U.S. Dist. LEXIS 65234, *9 (S.D. Fla. April 13, 2020) (stating “legal arguments and citations 

to other cases [] are not matters properly raised in a Complaint.”). The Amended Complaint 

nevertheless spends contains a voluminous quantity of case’s quotations in an attempt to plead a 

cause of action. Including those quotations does not excuse or justify the Plaintiff’s failure to 

plead facts or relevant data and statistics. Nor should the Court presume the quotations have any 

relevance to the instant action. For example, the Amended Complaint quoted language from 

Inclusive Communities regarding “heartland” lawsuits. See [D.E. 6 at ¶34]. But, the case before 

this Court is not a “heartland” case because the Supreme Court identified that type of claim as one 

concerning challenges to zoning laws, ordinances, and other governmental housing restrictions. 

See Inclusive Communities, 576 U.S. at 539-40. 

V. A Single Call Does Not Establish A Disparate Impact 

 To demonstrate actionable discrimination, a defendant’s misconduct must be more than 

isolated to rise to the level of actionable pattern or practice. See Bryant Woods Inn, Inc. v. Howard 

Cty., Md., 911 F. Supp. 918, 940 (D. Md. 1996). Yet, based on a single telephone call, the Plaintiff 

contends it brought this action based on how the Plaintiff believes the Defendant would act if the 

Defendant merely “suspected” someone of being a felon. See [D.E. 6 at ¶¶1-2]. Julia’s response 

to a single tester regarding that tester stating he is a felon does not constitute a practice and the 

Plaintiff cannot be permitted to extrapolate what Julia said the Defendant would do if the tester 

was a felon to plead a cause of action regarding how the Defendant might act if it merely suspected 

someone is a felon. 

 For all these reasons, this Court should dismiss the Plaintiff’s Amended Complaint. The 

dismissal should be entered with prejudice because any attempt to amend would be futile. 

 Respectfully submitted, 

 HINSHAW AND CULBERTSON, LLP 

 s/MELISSA GILLINOV 

 Melissa Gillinov, Esq. 

 Florida Bar No. 11892 

Case 1:20-cv-22665-DPG Document 8 Entered on FLSD Docket 08/24/2020 Page 20 of 21
 mgillinov@hinshawlaw.com 

 2525 Ponce de Leon. Blvd. 

 Miami, Florida 33434 

 Telephone: 305-358-7747 

 Facsimile: 305-577-1063 

 Counsel for The Palm Bay Grand, LLC 

CERTIFICATE OF SERVICE 

I HEREBY CERTIFY that on August 24, 2020, I e-filed this document using the CM/ECF 

system. I further certify that I am unaware of any non-CM/ECF participants. 

 /s/MELISSA GILLINOV 

 Melissa Gillinov 

Case 1:20-cv-22665-DPG Document 8 Entered on FLSD Docket 08/24/2020 Page 21 of 21