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), as well as 

Southern District Local Rule 7.1, The Palm Bay Grand, LLC d/b/a Palm Bay Grand moves to 

dismiss the Plaintiff’s Amended Complaint.1

 For the reasons stated below, this Court should grant 

the requested relief. 

INTRODUCTION 

 The Plaintiff, the Florida Fair Housing Alliance, Inc., was incorporated by its president, 

Ryan Turizo, who is a serial litigant that has filed over 20 lawsuits in the Southern District of 

Florida in the past 18 months. The earlier Fair Housing Act complaints named Mr. Turzio as the 

plaintiff, and described him as a Hispanic male with several felony convictions who serves as a 

tester. See e.g. Turizo v. Tamarac Pointe, Ltd, USDC Case No.: 20-cv.60073-RUIZ at [D.E. 1 at 

¶¶4, 8]. However, he recently changed his tactics and the complaints now list the Florida Fair 

Housing Alliance, Inc. as the plaintiff. Despite changing who is the plaintiff, the more recent 

complaints, including the one pending before this Court, still suffer from the same defects as his 

prior lawsuits. For example, the instant action was brought in the Southern District against the 

Palm Bay Grand, LLC, whose principal place of business is in the Middle District of Florida, 

regarding an apartment complex located in Melbourne, Florida. The Amended Complaint’s 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. Not only does the Amended Complaint fail to 

 

1 In accordance with Local Rule 5.1, this documents contains one and one-half inch spacing.

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establish the claim is ripe for adjudication, it also fails to establish that the requisite standing exists, 

the ability to ever state a plausible claim or that the Plaintiff even commenced this action in the 

proper venue. For those reasons, this Court should dismiss the Amended Complaint. 

I. 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 

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. 

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

Complaint’s clearly establishes the Plaintiff has failed to satisfy its burden. 

 A. The Amended Complaint does not establish Plaintiff’s standing to sue on 

 behalf of its members 

 As stated above, the Plaintiff is suing Palm Bay Grand 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 Florida Fair Housing Alliance 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 Florida Fair Housing Alliance is a membership 

organization; that the “tester” is a member; or that the Florida Fair Housing Alliance is bringing 

suit on a member’s behalf. But in the event the Florida Fair Housing Alliance 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 has no right to bring an 

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

lack of standing. 

B. The Amended Complaint Does Not Allege Standing To Sue On The 

 Plaintiff’s Behalf 

 Regarding organizational standing, the 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 

organizational standing requires the pleader to show “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). 

Importantly, 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.2d 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. The 

defendant landlord discriminated against HOME’s clients by falsely claiming that housing was 

unavailable, forcing HOME to expend additional resources to find these clients alternative 

housing. See id. at 379. When the landlord’s “racial steering practices” interfered with HOME’s 

ability to place clients in housing, HOME was forced to divert resources from its counseling efforts 

by using paired black and white testers to confirm the landlord’s discriminatory policies, and, later, 

engage in litigation. See id. at 368. 

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 It cannot be overstated that diversion of resources supports an organizational injury for 

standing purposes only when coupled with a plausibly illegal act. See Common Cause/Georgia, 

554 F.3d at 1350 (explaining that “an organization 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 

divert resources to counteract those illegal acts”) (emphasis added). For the reasons stated below 

in Section IV, 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 inadequate. 

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 offers no affirmative, plausible allegations – even on a 

general level - about how Palm Bay Grand’s alleged practice of rejecting an unsubmitted rental 

application impaired the Plaintiff’s vague “counseling,” “education” and “outreach” and 

“projects.” See [D.E. 1 at ¶32]. 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. Plus, no allegation establishes the amount of funds diverted were 

significant enough to meet the Article III test that an organization’s injury be “palpable.” 

 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 Seventeen’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 Palm 

Bay Grand caused it, or that this Court can redress it. See Browning, 522 F.2d 1153, 1166 (11th 

Cir. 2008). 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 its ability to provide services” when it alleges “only impairment of its 

advocacy”); Shield Our Constitutional Rights & Justice v. Hicks, No. DKC 09-0940, 2009 U.S. 

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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 Florida Fair Housing Alliance having standing to seek injunctive relief. 

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, “the-defendant-unlawfully-harmed-me” pleading 

deficiency disapproved by the United States Supreme Court. See Iqbal, 556 U.S. at 678. 

II. 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. Section 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. 1 at ¶7]. 

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, No. CIV. NO. 14-00254 

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HG, 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). The Plaintiff 

concedes Palm Bay Grand has its principle place of business in Winter Park Florida and the 

property at issue is located in Melbourne, Florida. Both of those locations are in the Middle 

District. Furthermore, Palm Bay Grand’s business activities are limited to owning the property in 

question, Palm Bay Grand 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 Palm Bay Grand 

are located in the Southern District, it does not solicit potential tenants known to be living in the 

Southern 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 Palm Bay Grand, LLC’s 

members resides in Brevard County, Florida and the other member resides in Tennessee. See the 

Affidavit of Justin Trimback, attached as Exhibit “A.” Section 1391(b)(1) does not confer venue 

in the Southern District. See [D.E. 1 at 9, 13]. 

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

the Palm Bay Grand’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, Palm Bay Grand, whose principal place 

of business is located in the Middle District of Florida, has a practice of turning away felons who 

seek to rent units at its Melbourne, Florida complex. See [D.E. 1 at ¶¶3 and 38]. 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. 1 at ¶17]. The field tester allegedly asked Julia 

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

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affirmatively. See [D.E. 1 at ¶17]. 

 Since the only relevant actions are Palm Bay Grand’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, 

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 Florida Fair Housing Alliance 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. 

III. To The Extent The Court Does Not Dismiss The Amended Complaint, The Court 

 Should Transfer The Litigation To The Middle District of Florida 

“Congress authorized courts to transfer the venue of a case in order to avoid unnecessary 

inconvenience to the litigants, witnesses, and the public, and to conserve time, energy, and 

money.” Cellularvision Tech. & Telecomms., L.P. v. Alltel Corp., 508 F. Supp. 2d 1186, 1188-89 

(S.D. Fla. 2007). “To prevail on a motion to transfer made pursuant to Section 1404(a), the moving 

party must show that: (1) an adequate alternative forum is available; (2) the public and private 

factors weigh in favor of transfer; and (3) the plaintiff can reinstate his suit in the alternative forum 

without undue inconvenience or prejudice.” Podhurst Orseck, P.A. v. Servicios Legales De 

Mesoamerica S. De R.L., 699 F. Supp. 2d 1344, 352 (S.D. Fla. 2010). 

Regarding the first factor listed in Podhurst Orseck, P.A. “[t]he burden of establishing 

whether an alternative forum exists is not a heavy one.” Warter v. Boston Sec., SA., 380 F. Supp. 

2d 1299, 1306-07 (S.D. Fla. 2004) (internal quotation marks and citation omitted). “[A] forum is 

available if it is amenable to service of process or the opposing party consents to jurisdiction in 

the alternative forum.” Perez-Lang, S.A., 575 F. Supp. 2d at 1349. Moreover, “[a] forum is 

generally adequate if it can provide some relief for Plaintiff’s claims.” Id. “An alternative forum 

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is presumed ‘adequate’ unless the plaintiff makes some showing to the contrary.” Da Rocha v. 

Bell Helicopter Textron, Inc., 451 F. Supp. 2d 1318, 1322 (S.D. Fla. 2006). Here, the United States 

District Court for the Middle District of Florida is an appropriate forum because Palm Bay Grand 

is a resident of the Middle District of Florida and a substantial part of the alleged events or 

omissions giving rise to the lawsuit occurred there. 

 A. The Private Factors Strongly Favor Transferring This Action If The 

 Court Does Not Dismiss The Lawsuit 

As stated by the Supreme Court when discussing inconvenient forums, “[a] citizen’s forum 

choice should not be given dispositive weight. . . . As always, if the balance of conveniences 

suggests that trial in the chosen forum would be unnecessarily burdensome for the defendant or 

for the court, dismissal is proper.” Piper Aircraft v. Reyno, 454 US 235, 246 n.23 (1981). Thus, 

courts consider a number of factors when deciding whether to transfer a case. The “[p]rivateinterest factors include ‘the relative ease of access to sources of proof; availability of compulsory 

process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; 

possibility of view of premises, if view would be appropriate to the action; and all other practical 

problems that make trial of a case easy, expeditious and inexpensive.’” Gaub v. Wal-Mart Stores, 

Inc., CASE NO. 12-80654-CIV-MARRA, 2012 U.S. Dist. LEXIS 158991, *9 (S.D. Fla. Nov. 6, 

2012) (quoting American Dredging Co. v. Miller, 510 U.S. 443, 448 (1994)). 

The first factor weighs heavily in favor of the Middle District of Florida because all of 

Palm Bay Grand’s records are located in the Middle District of Florida. Turning to the second 

private factor, at least one of Florida’s federal courts has remarked that “[o]f all of the private 

interest factors, the relative ability of the forums to compel the attendance of significant unwilling 

witnesses at the trial often is considered the most important factor, because the presentation of live 

testimony is essential to a fair trial.” Estate of Gutierrez v. Ford Motor Co., No., CASE NO: 8:02 

CV-676-T-17 EAJ, 2004 U.S. Dist. LEXIS 7535, *28 (M.D. Fla. Apr. 19, 2004). In fact courts 

in the Eleventh Circuit, including the Southern District of Florida, have already held the need to 

resort to videotaped depositions or letters rogatory strongly supports dismissing an action: 

Plaintiff argues that the witnesses’ testimony could be obtained through other 

means, such as videotaped depositions or letters rogatory. But given the importance 

of these witnesses in assessing the disputed factual issues, the Court finds that no 

adequate substitute exists for the witnesses’ live testimony and that the lack of 

access to this testimony weighs very strongly in favor of dismissal. 

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Montgomery v. Oberti, 945 F. Supp. 2d 1367, 1376 (S.D. Fla. May 16, 2013). 

Palm Bay Grand does not have any employees and the property is managed through a nonparty whose employees would be called as witnesses. See Exhibit A. Those individuals, including 

Julia Williams, have knowledge of the policies and procedures regarding potential applications, 

the submitted rental applications, which applications were denied and reasons for the denials. See 

id. Julia Williams is also an important witness because the Plaintiff brought this action based on 

her alleged conversation with the Plaintiff’s tester. None of these non-party witness can be 

compelled to testify in the Southern District of Florida’s Miami Division because they reside 

beyond the 100-mile radius of the trial location. See Fed. R. Civ. P. 45(c)(1)(A). Securing 

testimony of these witnesses without the availability of compulsory process would likely cause 

inconvenience and unnecessary expenses. In contrast, the identified witnesses would be subject 

to compulsory service if the litigation occurred in the Middle District of Florida’s Orlando 

Division. Thus, if this Court does not dismiss the Amended Complaint, it should transfer the 

lawsuit to the United States District Court for the Middle District of Florida. 

B. The Public Interest Factors Strongly Favor Transferring The Action If The 

 Court Does Not Dismiss The Lawsuit 

The public factors also weigh heavily in favor of transferring the case to Middle District of 

Florida if the Court declines to dismiss the lawsuit. The public interest factors include (1) “the 

administrative difficulties flowing from court congestion”; (2) “the local interest in having 

localized controversies decided at home”; (3) “the interest in having the trial of a diversity case in 

a forum that is at home with the law that must govern the action”; (4) “the avoidance of 

unnecessary problems in conflict of laws, or in the application of foreign law”; and (5) “the 

unfairness of burdening citizens in an unrelated forum with jury duty.” McLane v. Marriott Int’l, 

Inc., 547 Fed. Appx. 950, 958 (11th Cir. 2013) (quoting Piper Aircraft v. Reyno, 454 U.S. 235, 

240 n.6) (internal quotation marks omitted). As remarked by the United States Supreme Court, 

“[j]ury duty is a burden that ought not to be imposed upon the people of a community which has 

no relation to the litigation.” Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508-9, (1947). Furthermore, 

“[t]he Southern District of Florida has one of the busiest dockets in the country.” Ballard, 2014 

U.S. Dist. LEXIS 133512 at *9. “Indeed, the action would be an unfair burden on jurors in this 

district” because the litigation involves an apartment complex in Melbourne, Florida. See id. 

Thus, the public interest factors also weigh heavily in favor of the Middle District of Florida. 

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IV. 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.” Ashcroft v. Iqbal, 

556 U.S. 662, 678 (2009). “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 v. Curry, 738 F.3d 1246, 1251 (11th Cir. 2013). 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. 

 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 Texas 

Department of Housing & Community Affairs v. Inclusive Communities Project, Inc., 135 S. Ct. 

2507 (2015), racial imbalance, standing alone, does not establish a prima facie claim of disparate 

impact housing discrimination. 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. “Difficult 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 

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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, three requirements must be satisfied in order 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 v. Wells Fargo & 

Co., 931 F.3d 1274, 1296 (11th Cir. 2019) (quoting EEOC v. Joe’s 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 (Joe’s Stone Crab, 220 

F.3d at 1274). “A plaintiff who fails to . . . 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.” Tex. Dep’t of Hous. & Cmty. Affairs, 135 S. Ct. at 2523 (citing 

Wards Cove Packing Co. v. Atonio, 490 U. S. 642, 653 (1989), superseded by statute on other 

grounds, 42 U. S. C. §2000e-2(k)). Put simply, a disparate impact discrimination claim fails at the 

pleading stage unless the plaintiff demonstrates both relevant statistical disparity and a plausible 

showing of “robust causality” between the offending policy and the statistical disparity. See

Inclusive Cmtys., 135 S. Ct. at 2522-23. This is a burden the Fair Housing Alliance has not met. 

 Regarding the mandatory statistics, the United States Court of Appeals for the Eleventh 

Circuit has already held a plaintiff is required to 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 

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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 non-minorities 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 in that case 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 of the lawsuit “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.

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

 A. The Amended Complaint Fails To Provide The Required Statistics 

 Like the developers in Oviedo Town Ctr. II, L.L.L.P., the Florida Fair Housing Alliance 

has also woefully failed to satisfy its burden. Based solely on a single telephone call, the Amended 

Complaint asserts “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. 1 at ¶31]. The Amended Complaint does not allege the tester applied for 

housing and was denied. In fact, the Amended Complaint does not state the tester even submitted 

an application. The Florida Fair Housing Alliance nevertheless alleges “it has suffered, is 

suffering, and will continue to suffer irreparable loss and injury and a real and immediate threat of 

future discrimination by Defendant.” [D.E. 1 at ¶41]. These boilerplate allegations and 

conclusions fail to state a cognizable disparate impact housing discrimination claim. 

 In addition, the Amended Complaint is devoid of the required statistics and causal 

connection, which would consist of data concerning any racial disparities in the number of black 

and Hispanic rental applicants in proportion to the pool of potentially qualified tenants for Palm 

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Bay Grand’s units. Pursuant to Oviedo Town Ctr. II, L.L.L.P, the Plaintiff would have needed to 

draw a comparison between (a) the percentage of minorities occupying apartments at the Palm 

Bay Grand and (b) the percentage of minorities living in Melbourne, Florida. 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 about the total number of minorities in the United States compared to non-minorities. See

[D.E. 1 at ¶¶11-12]. Those documents and the Amended Complaint lack statistical support for the 

alleged disparate impact of a policy excluding only convicted felons. Moreover, the data the 

Amended Complaint relies on is from nationwide arrest and incarceration statics and is devoid of 

information regarding felony convictions in Melbourne, Florida. Thus, in accordance with the 

Eleventh Circuit prohibiting “bald assumption” with “no comparative data at all” about alleged 

disparate impacts, this Court should dismiss the Amended Complaint. 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 fatally omitting the required statistics, 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 then needed to show 

Palm Bay Grand’s policy of allegedly denying applications submitted by felons has caused a 

disparate impact in that Melbourne, Florida location. Instead, the Amended Complaint merely 

repeatedly argues the policy is discriminatory because the individuals affected by it are minorities. 

Tellingly, the Plaintiff has not even asserted any data showing the racial makeup of convicted 

felons in the Defendant’s actual or potential tenant pool of Melbourne, Florida, or that there are 

racial disparities in housing in 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” 

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causation necessary to state a claim for disparate impact regarding felonies in Melbourne. 

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.”). Since the Amended Complaint woefully fails to show a robust 

causation, the Plaintiff has failed to plead a cause of action that minorities are disproportionately 

convicted of felonies and the Palm Bay Grand’s alleged policy of denying applications submitted 

by 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 motion to dismiss disparate impact housing 

discrimination claim for failure to plead robust causation between policy and statistical racial 

disparities). 

C. Absent Evidence Of Disparate Impact Upon A Protected Class, A Facially 

 Neutral “Criminal Record” Policy Is Lawful.

 The Plaintiff’s main allegation is that Palm Bay Grand has a “practice” of “without any 

review or investigation, turning away individuals with a felony criminal record.” [D.E. 1 at ¶38]. 

Courts throughout the United States have recognized 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, CIVIL CASE NO. 3:17-CV-1493-L-BK, 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 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 that 

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 

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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. 

*3-4 

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

Northern District of Texas asserted “[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. at *5 (quoting Inclusive Cmtys., 135 S. Ct. at 2523). Reviewing the 

complaint showed the plaintiff had “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 held “[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 discriminatory effect.” 

Id. at *6. 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 crime-free 

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.

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

conclusion. In McKins v. Pye, 19-CV-4633 (LLS), 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 

Case 1:20-cv-22665-DPG Document 5 Entered on FLSD Docket 07/27/2020 Page 16 of 21
v. Phila. Hous. Auth., CIVIL ACTION No. 17-5753, 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”). 

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

 As stated above, the Amended Complaint contends this Court should be rely on HUD 

Guidance from 2016. See [D.E. 1, Page 7]. The Florida Fair Housing Alliance’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 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 is allegedly discriminatory. See [D.E. 

1 at ¶31]. 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. 1 at ¶¶ 

19 and 33]. 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 of the law regarding the HUD Guidance is therefore incorrect and its 

application to the facts before this Court reaches an unsubstantiated conclusion. 

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

document is also 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) (quoting Skidmore v. Swift & 

Co., 323 U. S. 134, 140 (1944)). The United States Court of Appeals for the Eleventh Circuit has 

previously held Skidmore affords a “lesser,” Quinchia v. United States Attorney General, 552 F.3d 

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1255, 1258-59 (11th Cir. 2008), and “more limited,” Rodriguez v. Farm Stores Grocery, Inc., 518 

F.3d 1259, 1268 n.5 (11th Cir. 2008), degree of deference than Chevron — meaning, a fortiori, 

that an interpretation under the Skidmore standard must be more than merely “reasonable.” Thus, 

while an agency’s interpretation has the “power to persuade,” it “lack[s] the power to control.” 

Skidmore, 323 U.S. at 140. 

 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” 

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 United States Court of Appeals for 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 that 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, some plaintiffs, including the 

Florida Fair Housing Alliance, have 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 it is also not the law in the United States District Court for the Southern District 

Case 1:20-cv-22665-DPG Document 5 Entered on FLSD Docket 07/27/2020 Page 18 of 21
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 United States District Court for the Southern District 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. 

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, Senior District Judge Jose A. Gonzalez, Jr. specifically 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 unambiguously contradicts 

the Amended Complaint before this Court: 

[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. 

Case 1:20-cv-22665-DPG Document 5 Entered on FLSD Docket 07/27/2020 Page 19 of 21
 Other federal appellate courts have also held a plaintiff cannot establish a disparate-impact 

simply because of Agency Guidelines. 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, also 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 

reason why this Court should reject the Amended Complaint’s flawed assertion that failing to 

conduct HUD’s suggested individualized assessment constitutes discrimination. 

 For all these reasons, this Court should dismiss the operative complaint pursuant to Federal 

Rules of Civil Procedure 12(b)(1), 12(b)(3) and 12(b)(6). The dismissal should be entered with 

prejudice as it is clear that an any attempt to amend would be futile because the Florida Fair 

Housing Alliance will never be able to establish a claim for disparate impact. 

 Respectfully submitted, 

 HINSHAW AND CULBERTSON, LLP 

 s/MELISSA GILLINOV 

 Melissa Gillinov, Esq. 

 Florida Bar No. 11892 

 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 

Case 1:20-cv-22665-DPG Document 5 Entered on FLSD Docket 07/27/2020 Page 20 of 21
CERTIFICATE OF SERVICE 

I HEREBY CERTIFY that on July 27, 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 5 Entered on FLSD Docket 07/27/2020 Page 21 of 21