\/ LY

members of that class, and setting] forth facts that demonstrate the enforcement of that policy in
the form of actions prohibited by the FHA.” Gilligan, 108 F.3d at 248.

Plaintiffs have pled that they have attained familial status under the FHA. “‘Familial
status’ means one or more individuals (who have not attained the age of 18 years) being
domiciled with . . . a parent or another person having legal custody of such individual or
individuals.” 42 U.S.C. § 3602(k). The complaint states that “Protho’s children are under the
age of 18,” (Compl. § 17) and that these children live with their father on the weekends.
Plaintiffs have also pled that Simmons has enacted a policy, specifically a no-children policy,
that affects only members of plaintiffs’ protected group, specifically families with children. A
copy of what plaintiffs allege to be the lease (that they signed with Simmons) is attached to the
complaint and is therefore a part of the complaint. Int’l, Mktg., Ltd. v. Archer-Daniels-Midland
Co., Inc., 192 F.3d 724, 729 (7th Cir, 1999) (“Documents attached to the complaint are
incorporated into it and become part of the pleading itself.”). In it, the term “Adults Only No
Children” is written in a section designated as “Additional Covenants and Agreements” to the
lease. (“Unfurnished Apartment Lease,” (“Lease”) Att. to Compl. at 1.)

Finally, resolving all facts in favor of plaintiffs, they appear to have adequately described
actions that purportedly enforced the above no-children policy and, in the process, violated the
FHA. The court initially notes that the termination notice to which the complaint refers, and
which is attached to the complaint, suggests two possible non-discriminatory reasons for
Simmons’ actions. One was an alleged “breach” of the terms of the lease. (“Notice of
Termination of Tenancy for Chicago,” (“Notice”) Att. to Compl.) According to the notice, the

breach consisted of “persons not on lease living in apartment (children).” (/d.) This alleged


VW LJ
court is at a loss to understand why the “corrected” version of the lease, which Simmons
contends is the one attached to the complaint, is not controlling in this matter, (Def. Mtn. ¥ 1A.)
Second, a motion to dismiss is not the proper occasion to determine which lease is the true lease.
Only after more evidence is gathered can the court gain a fuller understanding of what has
transpired contractually.

Simmons also argues that plaintiffs failed to disclose their familial status on a credit
report. Simmons appears to be raising this argument in order to buttress her claim that plaintiffs
were given a notice of eviction because they breached the lease. In other words, the fact that
plaintiffs may not have disclosed the existence of their children on the credit report may lend
credibility to Simmons’ argument that the children were not listed on the lease, and that there
was no understanding to that effect. Therefore, Simmons would appear to argue, she justifiably
gave a notice of eviction once she discovered the additional people in plaintiffs’ apartment. This
argument, supported by the requisite evidence, may ultimately prevail, but only if plaintiffs fail to
show that Simmons’ articulated non-discriminatory reason is a pretext for discrimination, On
this motion to dismiss, however, the court will not prejudge whether plaintiffs may be able to
demonstrate such pretext.

Simmons additionally argues that plaintiffs were given a notice of eviction because of
their nonpayment of rent, not because of their familial status, This argument, like the one
regarding the breach of the lease, may establish a legitimate non-discriminatory reason for giving
plaintiffs a notice of eviction. As with the other argument, however, the court cannot dismiss
plaintiff's’ case without giving them a chance to demonstrate that the reason is pretextual.

Simmons further argues that she has allowed the children of other tenants to live in her building.


YY Ne

policy in the form of actions prohibited by the FHA.” Gilligan, 108 F.3d at 248.

In the present case, at least four sections of the FHA appear to be implicated by the
complaint: §§ 3604(a)-(c) and 3617. Section 3604 states:

It shall be unlawful

(a) To refuse to sell or rent after the making of a bona fide offer, or to refuse to
negotiate for the sale or rental of, or otherwise make unavailable or deny, a
dwelling to any person because of race, color, religion, sex, familial status, or
national origin.

(b) To discriminate against any person in the terms, conditions, or privileges of
sale or rental of a dwelling, or in the provision of services or facilities in
connection therewith, because of race, color, religion, sex, familial status, or
national origin.

(c) To make, print, or publish, or cause to be made, printed, or published any
notice, statement, or advertisement, with respect to the sale or rental of a dwelling
that indicates any preference, limitation, or discrimination based on race, color,
religion, sex, handicap, familial status, or national origin, or an intention to make
any such preference, limitation, or discrimination.

42 U.S.C. § 3604(a)-(c).

Section 3617 states:
It shall be unlawful to coerce, intimidate, threaten, or interfere with any person in
the exercise or enjoyment of, or on account of his having exercised or enjoyed, or
on account of his having aided or encouraged any other person in the exercise or
enjoyment of, any right granted or protected by section 3603, 3604, 3605, or 3606
of this title.

42 U.S.C. § 3617.
It appears that plaintiffs have adequately pled violations of all of the above sections.

While “bare allegations of discrimination” may suffice in pleading complaints under the FHA,

Jiang, 199 F.R.D, at 271, plaintiffs appear to have done more, alleging “that they are members of

a class protected under the FHA, identif[ying] a policy [enacted by defendant] that affects only


WY QL

infraction by plaintiffs presumably violated a portion of the lease that states that Simmons “will
not allow the Premises . . . to be occupied in whole or in part by any other persons” than those
listed on the lease, namely the plaintiffs. (Lease Att. to Compl. $5.) Therefore, it is possible that
Simmons planned to evict plaintiffs not because of their familial status but because their children
were not listed on the lease. The other possible non-discriminatory reason for an eviction was an
alleged non-payment of rent. The notice states that plaintiffs had accrued $722.50 in past-due
rent, and that if payment was not made within five days of service of the notice, plaintiffs’
tenancy would be terminated. The complaint and attachments do not indicate whether the
overdue rent was paid within the specified time.

Nevertheless, given the lease term “Adults Only No Children,” which is susceptible to an
interpretation suggesting a no-children policy (as opposed to an interpretation suggesting that
Simmons, by using the term, was indicating that only adults lived in plaintiffs’ apartment), and
resolving all facts in favor of plaintiffs, it is possible that Simmons was planning to evict
plaintiffs because of their familial status. Further, it is possible that the wording of the eviction
notice (stating that plaintiffs breached the lease) was meant to cover up Simmons’ true
intentions. If so, Simmons’ actions would violate, among other FHA sections, § 3604(a), which
states that it is unlawful to “make unavailable or deny” housing based on familial status; §
3604(b), which states that it is unlawful to “discriminate against any person in the terms,
conditions, or privileges of sale or rental of a dwelling” based on familial status; and § 3617,
which states that it shall be unlawful to “interfere with any person in the exercise or enjoyment
of, ..., any right granted or protected by section . . . 3604. . . of this title.” Furthermore, the

“Adults Only No Children” lease term would be problematic by itself. The term would appear to


YY VS

Even if Simmons’ assertion is credited, however, she may still be held to violate the FHA if she,
as plaintiffs allege, discriminated against plaintiffs based on their familial status.
Simmons’ motion to dismiss is denied.
Conclusion
For the foregoing reasons, defendant’s motion to dismiss is denied.

ENTER:

JOAN'S. GOTTSCHALL
United States District Judge

DATE: December 3, 2001


Minate Qrifer Form (06:97)

United Sta_s District Court, Northern Distric_Jf Illinois

Name of Assigned Judge
or Magistrate Judge

Sitting Judge if Other
than Assigned Judge

Joan B, Gottschall

CASE NUMBER 01 C 2136 DATE 12/3/2001
CASE Michelle Record and Michael Protho vs. Georgia Simmons
TITLE
[in the foltowing box (a) indicate the party filing the motion, e.g., plaintiff, defendant, rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented}

DOCKET ENTRY:

qd) og Filed motion of [ use listing in “Motion” box above.]
2) oO Brief in support of motion due
GB) Qo Answer brief to motion due___. Reply to answer briefdue__
(4) oO Ruling/Hearing on____set for at
(5) a Status hearing set for 1/3/2002 at 9:30 A.M..
(6) Q Pretrial conference[held/continued to] [set for/re-set for] on setfor_ at
(7) Q Trial[set for/re-set for] on at
(8) o [Bench/Jury trial} [Hearing] held/continued to at
(9) QO This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

CFRCP4(m) OGeneralRule2! O FRCP41(a)(!) © FRCP4i(a)(2).
(10) Ml [Other docket entry} Enter Memorandum Opinion and Order. Motion by defendant [4-1] to dismiss

complaint is denied. A status hearing is ordered for January 3, 2002 at 9:30 A.M.
/
(11) @ [For further detail see order attached to the original minute order.]
No notices required, advised in open court, Document
— Number

No notices required.

Notices mailed by judge’s staff.
Notified counsel by telephone.
Docketing to mail notices

Mail AO 450 form,

Copy to judge/magistrate judge.

umber of notices

DEC 0 2001

inte docke

dockeighs yy initiais

\

ffm

date maited notice
courtroom

deputy’s
initials

Date/time received in
central Clerk's Office

mailing deputy initials



Ly YQ
violate § 3604(c), which states that it is unlawful to “make, print, or publish... any...
statement . . . with respect to the sale or rental of a dwelling that indicates any preference,
limitation, or discrimination based on. . . familial status.”

Simmons argues that plaintiffs’ complaint is flawed because it references a lease that is
not the real lease but is instead a “corrected version of the lease.” (Def. Mtn. to Dismiss at J 1A.)
The real lease, Simmons argues, is a lease attached to her motion as Exhibit 2. Exhibit 2,
Simmons explains, shows that the lease did not include the term “Adults Only No Children;”
rather, it contained the sentence, “[T]he couple doesn’t have children, apt to [sic] occupied by
adults[.]” (Exh. 2 to Def. Mtn. to Dismiss.)

Before addressing the substance of defendant’s argument, it is important to address a
concern that plaintiffs have raised regarding Exhibit 2 and other documents attached to
Simmons’ briefs. Plaintiffs assert that the court cannot consider these documents without
converting Simmons’ motion to dismiss to one for summary judgment because these documents
are not attached to the complaint. Plaintiffs, however, are partly mistaken. Because the lease is
central to plaintiffs’ complaint, the court may consider the lease attached to Simmons’ motion
(that is, Exhibit 2) without converting her motion to one for summary judgment. Menominee
Indian Tribe of Wis. v. Thompson, 161 F.3d 449, 455 (7th Cir. 1998) (“[D]ocuments attached to a
motion to dismiss are considered part of the pleadings if they are referred to in the plaintiff's
complaint and are central to his claim.”). Plaintiffs are correct that the court may not review the
other documents on a motion to dismiss.

Returning to Simmons’ argument, it is true that Exhibit 2 fails to contain the term “Adults

Only No Children”; however, the complaint need not be dismissed because of this fact. First, the


V4 WV
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS New
EASTERN DIVISION den ETEp
£C ge
” 200%
MICHELLE RECORD and MICHAEL PROTHO_ )
)
Plaintiffs, ) No. 01 € 2136
)
v. ) Judge Joan B. Gottschall
)
GEORGIA SIMMONS d/b/a SIMMONS )
APARTMENTS, )
Defendants, )

MEMORANDUM OPINION AND ORDER

Michelle Record and Michael Protho have filed a single-count complaint against Georgia
Simmons, doing business as Simmons Apartments, alleging violations of the Fair Housing Act
(“FHA”), 42 U.S.C. § 3601 ef seg. Plaintiffs claim that Simmons attempted to evict them on the
basis of plaintiffs’ familial status. Simmons now moves to dismiss the complaint. For the
reasons set forth below, Simmons’ motion is denied.

Background

The following facts are taken from the complaint and are assumed to be true for the
purposes of deciding this motion to dismiss. Plaintiffs signed an apartment lease with Simmons
in September, 2000. The lease was for a term of one year at a rent of $675 per month. The lease
included a provision that said, “Adults Only No Children.” (Compl. 7.) Plaintiff Michael
Protho shares custody of his children with his ex-wife, and pursuant to their custody
arrangement, the children spend weekends with him. Plaintiffs allege that on or about February
28, 2001, Simmons served a 10-day notice of termination of the lease because Protho’s children

occupied the apartment in violation of the “Adults Only No Children” provision of the lease. \\

\


VA VU
at {9.) Plaintiffs contend that Simmons’ actions and the explicit no-children policy outlined in
the lease are violations of the Fair Housing Act’s prohibitions against discrimination on the basis
of familial status.
Analysis

Simmons moves to dismiss plaintiffs’ complaint for a number of reasons. Simmons
contends, among other things, that the complaint fails to properly describe the contents of the
lease; that plaintiffs misrepresented themselves as having no children when they initially signed
the lease; that Simmons has allowed children of other tenants to live in the building; that the
purported lease term concerning “no children” (Compl. 7) was meant not to restrict plaintiffs’
occupancy of their apartment but instead to indicate that only adults lived in the apartment; and
that plaintiffs were evicted not because they had children, but because they did not pay their rent.
Plaintiffs essentially respond that Simmons has failed to challenge the legal sufficiency of
plaintiffs’ allegations, and therefore her arguments are irrelevant on this motion to dismiss.

In order to make out a complaint of housing discrimination under the FHA, a plaintiff
“need only plead the statutory elements of the [FHA].” Scialabba v. Sierra Blanca Condo.
Number One Assoc., et al., 2000 WL 1889664, *3 (N.D. Ill. Dec. 27, 2000) (citing Gilligan v.
Jamco Dev. Corp., 108 F.3d 246, 250 (9th Cir. 1997)). One court has stated that “bare
allegation(s] of discriminat[ory] [acts prohibited by the FHA]” suffice on a motion to dismiss.
Jiang y. Allstate Ins. Corp., 199 F.R.D. 267, 271 (N.D. Ill. 2001). Another court has suggested
that a complaint will easily survive a motion to dismiss when plaintiffs “allege that they are
members of a class protected under the FHA, identify a policy [enacted by a defendant] that

affects only members of that class, and set forth facts that demonstrate the enforcement of that