Ronald J. Clark, OSB #880328

E-Mail : ron.clark@bullivant.com

Bryana L. Blessinger, OSB #084622

E-Mail : bryana.blessinger@bullivant.com

BULLIVANT HOUSER BAILEY PC

300 Pioneer Tower

888 SW Fifth Avenue

Portland, Oregon 97204-2089

Telephone: 503.228.635 I

Facsimile: 503.295.09 1 5

Attorneys for Defendants Travelers

Robert M. Peterson, CSB #100084

Admitted Pro Hac Vice

Email : rpeterson@ccplaw.com

Michael C. Cooper, CSB #114729

Admitted Pro Hac Vice

Email : mcooper@ccplaw.com

Carlson, Calladine & Peterson, LLP

353 Sacramento Street, 16th Floor

San Francisco, CA 94lll

Teleplrone: 415.391'9411

Attorneys for Defendants Travelers

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

PORTLAND DIVISION

FAIR HOUSING COUNCIL OF

OREGON, an Oregon nonprofit corporation,

Plaintiff,

TRAVELERS CASUALTY AND

COMPANY, a foreign insurer;

TRAVELERS CASUALTY AND SURE

Bullivantll{ouscrlBailey PC

300 P¡oneer To\ter

EE8 SW Filìh Avenue

Porllû¡d, OreSon 97 2\:14-2089

Telephone: 503.228.6351

Civil No. 3:15-cv-00925 SB

DEFENDANT TRAVELERS HOME

AND MARINE INSURANCE

COMPANY AND TRAVELERS

INDEMNITY COMPANY OF

AMERICA'S MOTION FOR

SUMMARY JUDGMENT AND

MEMORANDUM OF POINTS AND

AUTHORITIES IN SUPPORT OF

TRAVELERS' MOTION FOR SUMMARY JUDGMENT

Case 3:15-cv-00925-SB Document 81 Filed 06/29/16 Page 1 of 30
COMPANY OF AMERICA, a foreign

insurer; TRAVELERS CASUALTY

INSURANCE COMPANY OF AMF,RICA,

a foreign insurer; TRAVELERS HOME

AND MARINE INSURANCE COMPANY,

a foreign insurer; TRAVELERS

PROPERTY CASUALTY COMPANY OF

AMERICA, a foreign insurer; TRA

PROPERTY CASUALTY INSURANCE

COMPANY, a foreign insurer;

TRAVELERS INDEMNITY COMPANY,

a foreign insurer; TRAVELERS

INDEMNITY COMPANY OF AMERICA,

a foreign insurer; TRAVELERS

CASUAI,TY COMPANY, a foreign insurer;

PROGRESSIVE INSURANCE

CORPORATION, INC., an Oregon

corporation, dba LLOYD PURDY & CO.,

Oregon assumed business name,

Defendants.

BullivantlHouserlBailey PC

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888 SW Fifth AYenue

Ponlônd, Or€gon 91 204 -2089

Telephone: 503.228.6351

THEIR MOTION FOR SUMMARY

JUDGMENT

ORAL ARGUMENT REQUESTED

TRAVELERS' MOTION FOR SUMMARY JUDGMENT

Case 3:15-cv-00925-SB Document 81 Filed 06/29/16 Page 2 of 30
TABLE OF CONTENTS

CERTIFICATION ......

MOTION

MEMORANDUM

I. INTRODUCTION

II. FACTUAL BACKGROUND

III. FHCO DOES NOT HAVE STANDING BECAUSE IT CANNOT ESTABLISH

BOTH A DIVERSION OF ITS RESOURCES AND A FRUSTRATION OF ITS

MISSION UNDER THE NINTH CIRCUIT STANDING TEST......

A. FHCO Did Not Divert Its Resources In Order To Test Travelers...

l. FHCO Did Not Divert Resources From Its Monitoring Of Building

Permits To Test Travelers, But Completed Such Monitoring

Activities As Required By Its HUD Grant Obligations..............

2. FHCO Did Not Divert Resources From Its Monitoring Of

Advertising On Craigslist To Test Travelers Because It Had No

Proposal or Funding To Conduct Such Monitoring

3. FHCO Has No Evidence To Support Its Claim That It Diverted

Resources From The Training Of Malia Bennett To Test Travelers

4, FHCO Has Not Undertaken Any Education And Outreach

Activities To Countelact Travelers' Alleged Conduct

B. FHCO Suffered No Drain On Its Resources Due To A Frustration Of lts

Mission

PAGE

I

I

1

I

4

10

t4

16

18

19

LJ

IV. CONCLUSION 26

BullivantlHouscrlBailey PC

30{) PioneerTo\rer

888 SW Filìh Ârenue

Porlf ând, Oregon 97 204 -208t)

Teleplìone: 503.228.6351

TRAVELERS' MOTION FOR SUMMARY JUDGMENT

Page i

Case 3:15-cv-00925-SB Document 81 Filed 06/29/16 Page 3 of 30
TABLE OF AUTHORITIES

Cases

Fair Employment Council of Greater Washington, Inc, v. BMC Market Corp.

28 F.3d 1268 (D.C. Cir. 1994)

Fair Housing Council of San Fernando Valley v. Roommate.com, LLC

666 F.3d 1216 (9thCir.2012) ,.....

Fair Housing of Marin v, Combs

28s F.3d 899 (9th Cir.2002)

Fishing Rock Owners' Ass'n. v. Roberts

6 F.Supp.3d 1132 (D. Or. 2014) ......

Friends o.f the Earth, Inc. v. Laidlaw Environmental Services, Inc.

528 U.S. t67 (2000)........

Haro v. Sebelius

7 47 F .3d I 099 (9th Cir. 2013) .......,...................... 

r.

Havens Realty Corp. v. Coleman

45s U.S. 363 (1982) ...............:..

La A,sociacion De Trabajadores De Lake Forest v. City of Lake Forest

624 F.3d 1083 (9th Cir. 2010) .

Lujan v. Defenders of Wildlife

s04 u.s. sss (1992)

Smith v. .Pacific Properties and Development Corp.

358 F.3d 1097 (9th Cir.2004)

White v. Lee

227 F.3d 1214 (gth Cir. 2000)

Yamada v. Snipes

786 F.3d I 182 (9th Cir. 2015)

Statutes

24 C.F.R. $ 100.20i(b) ............,...

42 U.S.C. $ 3602(h)

Rules

Fed. R. Civ. P. 30(bX6)

BullivantlllouserlBailey PC

PAGE(S)

l3

...12,13,22

2,1r,12,16

1

))

22

2

ll,12, 13

11,22

12,73

22

22

8

8

4

TRAVELERS' MOTION FOR SUMMARY JUDGMENT

Page ii 300 P¡oneer TÒ\Yer

E88 SW Fifth Avenue

Porllând, Oregon 97204-2089

Telephoile: 503.228.6151

Case 3:15-cv-00925-SB Document 81 Filed 06/29/16 Page 4 of 30
CERTIFICATION

Pursuant to Local Rule 7-1, counsel for Defendants Travelers Home and Marine

Insurance Company and Travelers Indernnþ Company of America (collectively,

"Travelers") certify that they conferred in person with counsel for Plaintiff Fair Housing

Council of Oregon ("FHCO"), as well as counsel for Defendant Progressive Insurance

Corporation, Inc. ("Defendant Pr"ogressive"), and made a good faith effort to resolve the

dispute. Plaintiff opposes the motion.

MOTION

Pursuant to Federal Rule of Civil Procedure 56, Travelers lnoves against Plaintiff

FHCO for summary judgment on FHCO's standing to bring this action under the Federal

Fair Housing Act (42 U.S.C. 3601 et seq.) and its Oregon counterpad (O.R.S. 659A.145,

o,R.s. 6s94.88s).

MEMORANDUM

I. INTRODUCTION

Plaintiff Fair Housing Council of Oregon ("FHCO") brought this action against

Defendants Travelers Home ancl Marine Insurance Company and Travelers Indemnity

Conrpany of America (collectively, "Travelers") under the Federal Fair Housirig Act (42

U.S.C. 3601 et seq.) and its Oregon counterpart (O.R.S.6594.145, O.R.S.6594.885),1

alleging Travelers violated those statutes by declining to offer homeowners insurance to

testers posing as homeowners with Pit Bulls, which purportedly served as "assistance

I Oregon's fair housing law mirrors federal fair housing law and the analysis of the two laws

is iderfical. Fishing Rock Owners'Ass'n, v. Roberfs,6 F.Supp.3d 1732, 1138 n.l (D. Or.

2014).

BullivantlHouscrlBailey PC TRAVELERS' MOTION F'OR SUMMARY JUDGMENT

Page I

300 Pioneer To\rer

E88 SW F¡fìh AYenùe

Pollond, Oregon 97 204 -2089

Telephone: 503.2:8.635Ì

Case 3:15-cv-00925-SB Document 81 Filed 06/29/16 Page 5 of 30
animals" for the testers. According to FHCO, Travelers' underwriting constittttes a

discrirninatory housing practice, As discussed in Travelers' Opposition to FHCO's MSJ,

Travelers has, fbr well ovel a decade, maintained an ineligible dog breed list because the

ineligible dog breeds, including and especially Pit Bulls, present st¡bstantial risks of

significant and severe loss according to Travelers' sound underwriting principles and

actuarial data.

Travelers' Motion for Summary Judgment challenges FHCO's standing to pursue a

discriniination claim against Travelers. To have direct standing under the Fair Housing Act

("FHA"), an organization, like FHCO, must suffer a "distinct and palpable injury" as a result

of a discriminatory housing practice.2 The Ninth Circuit has interpreted this injury causation

requirenrent to mean that an organization has oodirect standing to sue [when] it show[s] a

drain on its resources from both a diversion of its resources and a frustration of its mission,"

as a result of the defendant's conduct.3 Travelers' Motion should be granted because the

undisputed facts categorically demonstrate that FHCO cannot establish either prong of the

Ninth Circuit's two-prong standing test.

As to the first prong of the test, FHCO contends that it diverted resources to conduct

testing of Travelers to determine whether Travelers would insure homes with Pit Bull

assistant animals, as discussed above, FHCO's contention, however, cannot be true because

it lracl made a prior commitment uncler a grant fiom the Departrnent of Housing and Urban

t Havens Realty Corp. v. Coleman 455 U.S. 363,372, 102 S.Ct. 1114,71 L.Fd.2d 214

( r e82).

t Fai, Housing o.f Marin v. Combs,285 F.3d 899, 905 (9th Cir. 2002), cert. denied,537 U.S.

101 8 (2002) (emphasis added).

BullivântlHouserlBailcy PC- TRAVELERS' MOTION FOR SUMMARY JUDGMENT

300 P¡oneer To$'er PageZ

EE8 SW Filìh 

Poll¡nd, Oregon ^renue 91 204 -2089

Telephônè: 503.22E.6351

Case 3:15-cv-00925-SB Document 81 Filed 06/29/16 Page 6 of 30
Development ("HUD"), to conduct such testing'of insurers. Before it decided to test

Travelers, FHCO had already committed itself under the HUD grant and associated funding

to conduct testing of homeowner's insurers, such as Travelers. FHCO, therefore, did not

divert any resources to test Travelers, but to the contrary, was required to do so by its

funding obligations under its HUD grant.

FHCO's additional claim that it had to divert resources from three specific activities

is also untrue. First, FHCO did not divert resources from its monitoring of building permits

to test Travelers, as FHCO claims, but completed such rnonitoring activities in accordance

with its grant obligations under.the af.orementioned HUD grant. Second, FHCO did not

divert resources from its monitoring of advertising on craigslist, as it claims, because it had

no proposal or funding to conduct such rnonitoring activity, and therefore, could not have

undertaken such monitoring activity in any event. Third, FHCO has disclosed no evidence to

support its claim that it diverted resources from the training of its enfol'cement coordinator,

Malia Bennett, to test Travelers, nor could it have done so because FHCO was obligated to

utilize Ms. Bennett to conduct the insurance testing of Travelers to fulfìll its obligations

under the HUD grant,

As to the second prong of the Ninth Circuit test for standing, FHCO cannot establish

that it suffered a frustration of its stated mission to eliminate housing discrimination as a

result of its decision to test Travelers because FHCO, as it professed, actually advancedits

mission through the enforcement activities it conducted under its HUD Grant, which

included the testing of Travelers. Furthermore, Travelers did nothing to FHCO's knowledge,

to force, let alone prompt, FHCO to conduct such testing, For example, FHCO did not know

the identity of a single disabled individual who had been denied homeowner's insurance by

BurrivantlHouserlBailcyPC TRAVELERS'MOTION FOR SUMMARY JUDGMENT

300 P¡one€r Tower Page 3

888 SW Fiflh Avenue

Ponland, Oregon 91 204 -2089

Telepho¡e: 503.228.635 I

Case 3:15-cv-00925-SB Document 81 Filed 06/29/16 Page 7 of 30
Travelers because he or she had a Pit Bull assistant animal, FHCO never received a

complaint from any such disabled individual, nor did FHCO even have any understanding as

to how many disabled homeowners in Oregon owned Pit Bull assistance animals. FHCO,

therefore, could nof have incurred any injury to its stated mission due to Travelers alleged

conduct.

For these reasons, as more fully discussed below, the undisputed facts demonstrate

that FHCO cannot establish standing under the two-prong Ninth Circuit test'

II. FACTUAL BACKGROUND

FHCO is a private non-profit corporation in Portland, Oregon. (Complaint at !l 3 [Dkt.

#11.) FHCO alleges its mission statement is to address and eliminate illegal housing

discrimination. (Complaint at ff 3 [Dkt. #l].)

a Pegge McGuire is FHCO's Rule 30(b)(6) designated witness on topics 1-14, and 47 set

forth in Defendant Travelers' Notice of Deposition of Plaintiff Fair Housing Council of

Oregon, Pursuant to Fed. R. Civ. P. 30(bX6) (Declaration of Ronald J. Clark (hereinafter

'oClark Dec."), Ex. C, McGuire depo. at 8:2=9:8 is Deposition Ex. 1), which includes topics

relating to FHCO's expenses and claimed damages attributed to its testing of Travelers,

FHCO;s alleged diversion of resources caused by Travelers' conduct, and FHCO's purported

drain on its resources because of its frustration of its mission.

BullivantlflouserlBailcy PC TRAVELERS' MOTION FOR SUMMARY JUDGMENT

300 Pioneer Tolv€r Page 4

888 SW Fifth Ävenue

Por1land, Oregon 972(14 -2(,89

Telephone: 503.228.6351

Case 3:15-cv-00925-SB Document 81 Filed 06/29/16 Page 8 of 30
BullivantlHouserlBailcy PC

300 Pione€r Tosc¡

888 SW Fifth Avenue

Porllfl nd, Oregon 91 204 -2089

Telephone: 503.2!8.6351

TRAVELERS' MOTION FOR SUMMARY JUDGMENT

Page 5

Case 3:15-cv-00925-SB Document 81 Filed 06/29/16 Page 9 of 30
Í

BullivantlHouserlBalley PC

300 Pioneer To\r€r

888 Sw Fifth Avenue

Polltnd, Oregon 9'l 204 -2089

Tel€phone: 503.228.6351

TRAVELERS' MOTION FOR SUMMARY JUDGMENT

Page 6

Case 3:15-cv-00925-SB Document 81 Filed 06/29/16 Page 10 of 30
IIIIITIIIII

ITIIIIIIIIIIT

BullivantlHouscrlBailey PC TRAVELERS' MOTION FOR SUMMARY JUDGMENT

Page 7

300 PioneerTower

E88 SW Fifìh Av€nue

Portlmd. Oregon 91 204 -2089

Telephone: 503.228.ó351

Case 3:15-cv-00925-SB Document 81 Filed 06/29/16 Page 11 of 30
t Under the FHA, handicap/disability means, inter qlia, with reSpect to an individual, a

physical or mental impairment that substantially limits one or more major life activities (see,

42 U.S.C. $ 3602(h)) and "major life activities" includes functions such as caring for oneself,

performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and

working (see,24 C.F.R. $ 100.201(b)). To be an assistance animal, the hypothetical Pit Bull

must assist in the disability-related need or alleviate one or more of the symptoms affecting

the individual's emotional disability.

BullivantlHouscrlBailcy PC TRAVELERS' MOTION FOR SUMMARY JUDGMENT

300 PioneerToNer Page I

888 SW Fifìh Avenue

Podland, Oregon 97 204 -2()89

Telêphone: 503.228.615I

Case 3:15-cv-00925-SB Document 81 Filed 06/29/16 Page 12 of 30
II

e Ms. Bennett refers to the non-control testers as the "protected class" testers.

Bullivanilt-IouserlBailey PC TRAVELERS' MOTION FOR SUMMARY JUDGMENT

300 Pioneer ToNoÍ Page 9

888 SW F¡Rh Avenue

Ponlând, Oregon 97 204 -2089

Telephone: 503.2?8.6351

Case 3:15-cv-00925-SB Document 81 Filed 06/29/16 Page 13 of 30
III. FHCO DOES NOT HAVE STANDING BECAUSE IT

CANNOT ESTABLISH BOTH A DIVERSION OF ITS

RESOURCES AND A FRUSTRATION OF ITS MISSION

UNDER THE NINTH CIRCUIT STANDING TEST

To establish standing, FHCO must demonstrate a o'distinct and palpable injury"

suffrcient to satisfr Article III standing requirements under the FHA. The pararneters of this

injury in fact requirement were addressed by the U.S. Supreme Court in Havens Realty v.

Colernøn,455 U.S. 363 (1 982). Havens held.that an organization can demonstrate a distinct

and palpable injury if it proves a concrete and detnonstrable injury to the organization's

activities "with the consequent drain on the organization's resources," which "constitutes far

more than simply a setback to the organization's abstract social interests." Havens, supra,

455 U.S. at379. In Havens, arealtycompany and one of its ernployees were alleged to have

BullivantlHouserlBailey PC TRAVELERS' MOTION FOR SUMMARY JUDGMENT

300 Pione€r To\Yer Page 10

881ì Sw Fiftlì Avenue

Porllmd, Oregon 97 204 -2089

Telephone: 503.228.6351

Case 3:15-cv-00925-SB Document 81 Filed 06/29/16 Page 14 of 30
engaged in racial steering in violation of the FHA. The issue of star-rding was addressed by

the Supreme Court in the context of a motion to dismiss. The organization alleged that it

suffered injury as a result of the purported steering, claiming that its counseling and refèn'al

services had been frustrated with a subsequent drain on its resources to counteract such

alleged discrimination. The Court held such allegations were sufficient to establish at the

pleading stage thal" the organization had suffered injury in fact because defendants' steering

practices perceptively impaired the organization's ability to provide its counseling and

referral services to low and moderate income home seekers, and caused the organization to

divert its resources to address defendants' steering activities. Id. at 379; see also, Fair

Housing of Marin, supra, 285 F.3d at 903, Significantly, the Court noted that the

organization would still "have to demonstrate at trial that it has indeed suffered impairment

in its role of facilitating open housing befbre it will be entitled to judicial relief." Id. at 379,

n.21 .

The Supreme Court subsequently confirmed in Lujan v. Defenders of Wildlife, 504

U.S. 555 (1992), that a plaintiff in opposing a summary judgment motion in contrast to a

motion to dismiss, could not rest on the "mere allegations" of the complaint, but must set

fortlr by affidavit "specifìc facts" establishing injury in fact. Lujan, supra,504 U.S. at 561.

The LtjanCourt further reiterated the standing requirement that an injury be "concrete and

particularized" as well as "actual or imminent, not 'conjectural' or 'hypothetical."' Id. at 560.

Under the Ninth Circuit interpretation of Havens and its progeny, an organtzation

establishes standing by demonstrating it suffered "both a diversion of its resources øzd

frustration of its mission." (ernphasis added); La Asociacion De Trabajadores De Lake

Forest v. Ciry of Lake Forest, 624 F .3d 1083, 1088 (9th Cir. 20 i 0) ("An organization suing

BurrivantlflouserlBnireyPC TRAVELERS, MOTION FOR SUMMARY JUDGMENT

300PioneerroNer Page I I

888 SW Finh 

Pollând, Or€gon ^venue 97 204 -208{)

Telephone: 503.2!8.6351

Case 3:15-cv-00925-SB Document 81 Filed 06/29/16 Page 15 of 30
on its own behalf can establish an injury when it suffered 'both a diversion of its resources

and frustration of its mission,"' quoting Fair Housing of Marin v. Combs,285 F.3d 899, 905

(9th Cir. 2002)); Fair Housing Council o.f San Fernando Valley v. Roommate.com, LLC, 666

F .3d 1216, 1219 (gth Cir.2012) ("We've held that an organization has 'direct standing to sue

fwhen] it showed a drain on its resources from both a diversion of its resources and

frustration of its rnission," citing Fair Housing of Marinv. Combs, supra,285 F,3d at 905);

Smith v, Pacific Properties and Development Corp,, 358 F.3d 1097 , | 105 (9th Cir. 2004).

The Ninth Circuit has also consistently held that standing must be established

independerf of the lawsuit filed by the plaintiff organization and that such organization

"cannot nranufacture [an] injury by inculring litigation costs or simply choosing to spend

money frxing a problem that otherwise would not affect the organization at all." Fair

Housing Council oJ' San Fernando Valley, supra, 666 F.3d at l2l9; La Asociacion De

Trabajadores De Lake Forest, supra,624F.3d at 1088; Fair Housing Council of Marinv.

Combs, supra,285 F.3d at 903.

The Ninth Circuit has addressed the standing of organizations under the FHA, only in

situations in which the record was underdeveloped. For example, in Fair Housing of Marin

v, Combs, supra,285 F.3d at 905, the Ninth Circuit relied on the District Court's record,

which appears to be based on the allegations in the organization's complaint and the

organization's itemized darnage clairn submitted after the defendant's default, which,

according to the Ninth Circuit, supported the Distriet Court's finding that the organization

suffered frustration of its mission by being forced to design, print and disseminate literature

aimed at redressing the irnpact of the defendant's discrimination on the Marin housing

market, and suffered resources being diverted to investigating and other efforts to counteract

BurrivantlrlouscrlBaireyPC TRAVELERS, MOTION FOR SUMMARY JUDGMENT

i:l3iffiiilîìä,," Page 72

Pollând, Oregon 97 2(14-2049

Telephoner 503.228.6351

Case 3:15-cv-00925-SB Document 81 Filed 06/29/16 Page 16 of 30
the defendant's discrirninatory conduct, above and beyond litigation. Similarly in Smith,

supra,358 F.3d at I 106, the Ninth Circuit addressed the issue of standing in the context of a

Rule 12(b)(6) rnotion and concluded merely that the allegations in the complaint were

sufficient to demonstrate standing, and specifically, a diversion of resources because the

organizalion diverted its scarce resources from other efforts to promote awareness of - and

compliance with - federal and state accessibility laws and to benefÏt tl,e disabled community

in other ways. In La Asocíacir¡n De Trabajadores De Lake Forest, sl,tprct, 624 F.3d, the Ninth

Circuit denied standing to an organization which failed to allege any facts in its cornplaint

that it was forced to divert resources because of the defendants'action, citing with approval

Fair Employment Council of Greater Washington, Inc. v. BMC Market Corp,,28F.3d 1268,

1277 (D.C. Cir.1994), which rejected the argument that a plaintiff organization has standing

to sue based solely on its own decision regarding resource allocation, and requiring that the

organization be forced to divert resources in order to avoid an injury caused by the

defendant's alleged discriminatory conduct. Finally, in Fair Housing Council of San

Fetnanclo Valley, supra,666 F.3d at 1219, the Ninth Circuit summarily concluded that the

organization had standing because it started new education and outreach campaigns targeted

at the alleged discriminatory advertising and that the resources spent on those campaigns

were not associated with litigation.

Here, in contrast to the records before the Ninth Circuit in the foregoing decisions, the

record below is well developed and unequivocally establishes that FHCO lacks the requisite

Article III injury in fäct because it cannot show a drain on its resources from either, let alone

both, a diversion of its resources or a frustration of its rnission.

BullivantltlouserlBailey PC TRAVELERS' MOTION FOR SUMMARY JUDGMENT

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Case 3:15-cv-00925-SB Document 81 Filed 06/29/16 Page 17 of 30
A. FHCO Did Not Divert lts Resources In Order To Test Travelers

BullivantlHouserlBailcy PC

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888 SW F¡Rh AYenue

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TRAVELERS' MOTION FOR SUMMARY JUDGMENT

Page 14

Case 3:15-cv-00925-SB Document 81 Filed 06/29/16 Page 18 of 30
FHCO, therefore, did not divert resources to test

Travelers, but to the conlrary, had planned and proposed to do such testing in early 2013,

well before it decided to test Travelers, and was required to complete that testing to comply

with its Statement of Work obligations under its HUD Grant.

Notwithstanding the fact that the HUD documentation and Ms. McGuire's testimony

confirm that the testing of Travelers was preordained by the HUD 1360 Grant, and not the

result of any diversion of FHCO's resorlrces, FHCO contends, without any supporting

documentation, ìhat its testing and investigation of Travelers required FHCO to divert

BullivantlHouscrlBailey PC TRAVELERS' MOTION FOR SUMMARY JUDGMENT

Page 15 300 Pioneer ToNer

888 SW Fifìh Avenüe

Polf and, Orcgon 97 204 -2089

Telephoneì 503.2?8.6351

Case 3:15-cv-00925-SB Document 81 Filed 06/29/16 Page 19 of 30
resources from the following three purportedly planned açtivities: (1) rnonitoring building

permit activity across Oregon in order to identify and investigate those multi-family unit

construction projects that did not comply with FHA design and construction standards; (2)

monitoring advertising on craigslist and other rental advertising media to identifu language

and practices that violate Oregon's source of income protections; and (3) devoting time to the

training and professional developrnent of its Enforcement Coordinator, Ms. Bennett.

(FHCO's Responses to Defendant Traveler's First Set of Interrogatories, Response to

Interrogatory No. 5 [Ex. I to Clark Dec.], andparagraph lg of FHCO's Complaint [Dkt. #1].)

Ms. McGuire's testimony, as FHCO's Rule 30(b)(6) designated person most knowledgeable

on this diversion of resources subject matter, and the HUD documentation, disprove FHCO's

alleged diversion of resources claims, as more fully addressed below. Finally, unlike the

organizations in Fair Housing of Marin v, Combs and, Fair Housing Council o.f San

Fernando Valley, which diverted resources for education and outreach to counteract the

alleged discrimination, FHCO has never undertaken any such education and outreach

activities because of Travelers' alleged discrirnination.

1. FHCO DirI Not Divert Resources From Its Monitoring Of Builcling

Permits To Test Travelers, But Completed Such Monitoring Activities As

Required By Its HUD Grant Obligations

FHCO did not divert any resources from its monitoring of building pennits across

Oregon in order to identifu and investigate construction of multi-farnily units that did not

comply with the FHA design and construction standard, but completed such activity as

planned and required under its HUD Grant.

BullivantlHouserlBailcy PC

300 PioneerToñer

888 SW Finh Avenue

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Telephone: 503.228,6351

TRAVELERS' MOTION FOR SUMMARY JUDGMENT

Page 16

Case 3:15-cv-00925-SB Document 81 Filed 06/29/16 Page 20 of 30
BullivantlHouscrlBailey PC

300 PioneerTorvet

E88 SW Fifth Avenue

Porlland, Oregon 91204 -2089

Telephone: 503.228.6351

TRAVELERS' MOTION FOR SUMMARY JUDGMENT

Page 17

Case 3:15-cv-00925-SB Document 81 Filed 06/29/16 Page 21 of 30
FHCO Did Not Divert Resources From Its Monitoring Of Advertising On

Craigslist To Test Travelers Because It Had No Proposal or Funding To

Conduct Such Monitoring

FHCO did not divert resources, from its monitoring of advertising on craigslist for

violations of Oregon's source of income protection, to test Travelers, because FHCO had no

.concrete plan nor funding to undertake such monitoring activity.

2

BullivantlHouscrlBailey PC

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888 SW F¡Êh 

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TRAVELERS' MOTION FOR SUMMARY JUDGMENT

Page 18

Case 3:15-cv-00925-SB Document 81 Filed 06/29/16 Page 22 of 30
In short, none of FHCO's resources were diverted from the craigslist advertising

survey to test Travelers because there had not even been a proposal created by FHCO to

perform such survey by the end of 2014, when the testing of Travelers had been completed,

and no governmental entity was prepared to fund such advertising survey atthat time, even if

it had been proposed.

3. FHCO Has No Evidence To Support Its Claim That It Diverted Resources

From The Training Of Malia Bennett To Test Travelers

FHCO's claim, that it was unable to devote training and professional development of

Ms. Bennett because of its testing of Travelers, is pretextual and unfounded for many

reasons

BullivantlHouscrlBailey PC

300 Pioneer Tower

888 SW FifÌh Av€nue

Polland, Oregon 97 204 -2089

Telephone: 503.228.6351

TRAVELERS' MOTION FOR SUMMARY JUDGMENT

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Case 3:15-cv-00925-SB Document 81 Filed 06/29/16 Page 23 of 30
II

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BullivantlHouscrlBailey PC

300 Pioneer To$tr

888 SW Fifth Avenrc

Pollfl nd, Or€gon 97204 -2089

Telephone: 503.2!8.6351

TRAVELERS' MOTION FOR S'UMMARY JUDGMENT

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Case 3:15-cv-00925-SB Document 81 Filed 06/29/16 Page 24 of 30
I

FHCO's entire proposition that Ms. Callaghan was unable to

train Ms. Bennett solely because of the 19 hours Ms. Bennett spent on testing Travelers is not

only unsupported by any docurnents or testimony, but refuted by the HUD documentation,

Ms. McGuire's testimony, and common sense.

4, FIICO Has Not Undertaken Any Education And Outreach Activities To

Counteract Travelers' Alleged Conduct.

Finally, to the extent FHCO asserts that it diverted resources for education and

outreach to counteract Travelers' alleged discrimination, such argument would similarly lack

any foundational support

BullivantlUouserlBailcy PC TRAVELERS' MOTION FOR SUMMARY JUDGMENT

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888 SW Fifth Âvenüe

Port¡¡nd, Oregon 97204:2089

Telephone: 503.2:8.('351

Case 3:15-cv-00925-SB Document 81 Filed 06/29/16 Page 25 of 30
It is well established that the elements of Article lll standing, including injury in fact,

must be satisfied at the time the complaint is filed. Haro v. Sebelius,747 F.3d,1099, 1108

(9th Cir. 2013), citing Lujan, supra,504 U.S. at 569, n. 4 ("The existence of federal

jurisdiction ordinarily depends on the facts as they exist when the complaint is filed. [citation

omitted.] It cannot be that, by later participating in the suit, the State Department and AID

retroactively created a redressability (and hence a jurisdiction) that did not exist at the

outset."); Yamada v. Snipes,786 F,3d 1182, 1203-1204 (9th Cir. 2015) ("The party invoking

the jurisdiction of the court cannot rely on events that unfolded after the frling of the

complaint to establish its standing J'); llhite v. Lee,227 F.3d 1214, 1243 (9th Cir. 2000)

I

BulliVantlHouscrlBailcy PC TRAVELERS' MOTION FOR SUMMARY JUDGMENT

300 Pioneer Tower Page22 888 SW Filìh Ävenûe

Pollsnd, Or€gon 97204-2089

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Case 3:15-cv-00925-SB Document 81 Filed 06/29/16 Page 26 of 30
("standing is examined 'at the cortmencement of the litigation,"' citing the United States

Supreme Court decision in Friends of the Earth, Inc. v. Laidlaw Environmental Services,

Inc., 528 U.S. 167 (2000).) FHCO's "anticipated future diversion of resources," which have

not been incurred, and, therefore, indisputably had not been incurred at the time of FHCO's

filing of its Complaint of this action, cannot be used by FHCO to establish standing.

B. FHCO Suffered No Drain On lts Resources Due To A Frustration Of Its Mission

FHCO could not have suffered a frustration of its mission due to Travelers' conduct,

because FHCO advanced its mission in 2014 in large part through the very enforcement

activities it conducted under the HUD 1360 Grant, which activities included the testing of

Travelers.

I

FHCO, therefore, tested Travelers, as part of such

enforcement activities to comply with its HUD Grant obligations and purportedly to fuither

its mission, not frustrate it. FHCO cannot now genuinely claim that although it engaged in

such enforcement activities under its HUD Grant to advance its mission, such activities

simultaneously frustrated that same mission. For this reason alone, FHCO cannot establish it

suffered any frustration of its mission.

Fufthermore, FHCO must prove that its asserted drain on its resources due to a

frustration of its mission was more than a setback to its abstract social interest; it must be a

concrete and demonstrable injury to its mission. Havens, supra, 455 U.S. at 379. FHCO

cannot meet its burden because its claimed injury to its mission is nothing more than an

Burlivantll.IouscrlBaileyPC TRAVELERS'MOTION FOR SUMMARY JUDGMENT

;l!¡iffii¡îîï". Pase23

Porlland, Oregon 97 204 -2(t89

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Case 3:15-cv-00925-SB Document 81 Filed 06/29/16 Page 27 of 30
abstract notion

FHCO has no knowledge as to how Travelers'' alleged conduct negatively impacted

FHCO's purported mission of eliminating housing discrirnination.

Given FHCO's lack of information as to the

hypothetical, postulated discrimination giving rise to its testing and its random selection of

Travelers as the target of such testing, any purported injury to its mission due to Traveler'

purported conduct could not be less concrete, nor more abstract.

FHCO further claims that its mission was hindered in its efforts to eliminate housing

discrimination and ensure decent housing for persons regardless of disability (Complaint at fl

19 [Dkt. #ll, Clark Dec. Ex. G, Bermett deposition Ex.2) even though, as demonstrated

above, FHCO's pursuit of Travelers under the HUD 1360 Grant, actually advanced its stated

mission. Additionally, FHCO could not have suffered a frustration of its mission at the time

BullivantlHouscrlBaileyPC TRAVELERS,MOTION FOR SUMMARY JUDGMENT

;lilfrTiiliîï." Page}4

Porlland, Oregon t7204-2(t89

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Case 3:15-cv-00925-SB Document 81 Filed 06/29/16 Page 28 of 30
it decided to test Travelers because FHCO was unaware of any irnpact Travelers' alleged

conduct had on FHCO's purported mission.

FHCO also alleges it "suffered further injury to its

ability to assure rights to the irnportant social, professional, business, economic, and political

benefits of those associations that arise from living in a community tolerant of and integrated

with disabled individuals" (Complaint at T 19), which is nothing more than a boilerplate

recitation of some setback to its purely "abstract social interests," Havens, supra,455 U.S. at

379

Finally, FHCO inexplicably asserts that it has been harnpered in its ability to work

with insurers in a trusting relationship to eradicate discrimination because it was "forced to

litigate" this claim (F;x.2, FHCO Complaint at fl 18, [Dkt. #1]), even though the decision to

BullivantlllouserlBaileyPC- TRAVELERS,MOTION FOR SUMMARY JUDGMENT

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Case 3:15-cv-00925-SB Document 81 Filed 06/29/16 Page 29 of 30
file its Complaint was within its sole discretion

I

I Given these concessions, FHCO cannot credibly algue that anything Travel.ers

did "forced" it to file the Complaint in this action.

IV. CONCLUSION

' Travelers' Motion for Summary Judgment should be granted because FHCO cannot

establish both a diversion of its resources and a frustration of its mission under the Ninth

Circuit standing test. The undisputed facts demonstrate that FHCO could not have diverted

resources to test Travelers because it was required to conduct such testing to comply with

and fulfill its obligations under the HUD 1360 Grant. For this reâson alone, the Court should

grant Travelers' Motion because FHCO cannot establish any diversion of resources as

required under the first prong of the Ninth Circuit standing test. The additional reasons why

FHCO cannot establish a diversion resources or afrustration of its mission further bolster the

conclusion that FHCO lacks standing.

DATED: Iune29,2016 Bullivant Houser Bailey PC

By : /,s/ Ronald.1. Clark

Ronald J. Clarlc, OSB #880328

Bryana L. Blessinger, OSB #084622

Telephone: 503.228.6351

Robert M. Peterson, CSB #100084

Admitted Pro Hac Vice

Michael C. Cooper, CSB #114729

Admitted Pro Hac Vice

Telephone: 415.39 1.941 I

BullivantlHouserlBailey PC

300 PioneerTower

888 SW Filìh Arenue

Porlland, Oregon 97 204 -2089

Telephoüe: 503.228.6351

Attorneys for Defendants Travelers

TRAVELERS' MOTION FOR SUMMARY JUDGMENT

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