UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

MIKAH FIALKA-FELDMAN,

Plaintiff,

v. Case No. 08-14922

Honorable Patrick J. Duggan

OAKLAND UNIVERSITY BOARD

OF TRUSTEES, GARY D. RUSSI,

MARY BETH SNYDER, and LIONEL

MATTEN,

Defendants.

____________________________/

OPINION AND ORDER GRANTING PLAINTIFF’S MOTION FOR

LEAVE TO FILE SECOND AMENDED COMPLAINT

At a session of said Court, held in the U.S.

District Courthouse, Eastern District

of Michigan, on June 17, 2009.

PRESENT: THE HONORABLE PATRICK J. DUGGAN

 U.S. DISTRICT COURT JUDGE

Plaintiff initiated this lawsuit against Defendant Oakland University Board of

Trustees on November 25, 2008, claiming that Defendant’s denial of his request for

housing in one of Oakland University’s (“University”) on-campus dormitory living

spaces violates the Fair Housing Act (“FHA”), 42 U.S.C. § 3604(f)(3)(B), and § 504 of

the Rehabilitation Act of 1973, 29 U.S.C. § 794(a). On April 20, 2009, this Court granted

Plaintiff leave to file an amended complaint that added University officials Gary D.

Russi, Mary Beth Snyder, and Lionel Maten as defendants and set forth the following

claims: (I) disparate impact discrimination in violation of the FHA; (II) discrimination in
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As this Court set forth in its April 20 opinion and order, the three-part burden

shifting test established in McDonnell Douglas Corporation v. Green, 411 U.S. 792, 93 S.

Ct. 1817 (1973), applies to a disparate treatment claim under the FHA. Graoch Assoc.

#33 v. Louisville/Jefferson County, 508 F.3d 366, 371-72 (6th Cir. 2007). First, a plaintiff

must set forth a prima facie case of discrimination. Id. Then, the defendant must

articulate a legitimate, non-discriminatory basis for the challenged decision. Id. Third, if

the defendant proffers such a basis, the plaintiff must establish that the articulated reason

is pretextual. Id. To state a prima facie case, Plaintiff must show that he is a member of a

protected class, that he applied for and was qualified for on-campus housing, that he was

rejected, and that housing remained available thereafter. Id.

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violation of the Rehabilitation Act; and (III) violation of the Rehabilitation Act based on a

failure to provide a reasonable accommodation. Presently before the Court is Plaintiff’s

motion for leave to file a second amended complaint. The motion has been fully briefed

and this Court held a motion hearing on June 16, 2009.

Parties’ Arguments

In his pending motion, Plaintiff seeks leave to add two counts to his pending first

amended complaint: (1) disparate treatment discrimination in violation of the FHA and

(2) disparate treatment in violation of the Americans with Disabilities Act (“ADA”), 42

U.S.C. §§ 12101-12213. Plaintiff indicates that newly discovered evidence warrants the

amendment because it shows that Defendants’ stated policy for denying him on-campus

housing is a pretext to conceal a discriminatory reason for their decision.1

Specifically, Plaintiff indicates that on April 13, 2009, his father discovered a

front-and-back copy of the original Contract for Residence Hall Services (“application”)

that Plaintiff completed in Fall 2007 in his attempt to secure on-campus housing and a

November 28, 2007 letter from Defendant Maten rejecting his application (“rejection
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The University subsequently informed Plaintiff that he in fact is not eligible for

student housing and has refused Plaintiff’s requests for an accommodation of its asserted

housing policy, thus leading to this lawsuit.

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letter”). Plaintiff states that the back page of the application, which sets forth the

eligibility requirements for on-campus housing, does not indicate that a student must be

enrolled in a degree granting program– the reason Defendants now assert for why he is

not “otherwise qualified” for on-campus housing and thus cannot prevail on his disparate

treatment claims. (Pl.’s Reply Ex. 5.) In the rejection letter, Defendant Maten states that

Plaintiff is not eligible for on-campus housing because he is “not an admitted Oakland

University student and [is] not registered for Winter 2008 classes.” (Id. Ex. 6.) Plaintiff

indicates that Defendants only added the matriculated student policy to its application in

March 2008, which was after Plaintiff first applied for housing and the University initially

informed him that he could begin living in one of its on-campus dormitories.2

Defendants raise three primary arguments in response to Plaintiff’s motion. First

Defendants argue that Plaintiff’s request is untimely and unwarranted. With respect to

the timeliness of Plaintiff’s request, Defendants argue that the application and rejection

letter are not “newly discovered” evidence because both documents have been in

Plaintiff’s possession since Fall 2007. Defendants thus maintain that Plaintiff has delayed

asserting his claims for a year and a half, which they argue is an “undue delay” that

justifies a denial of his motion. Defendants further argue that an amendment is not

warranted in light of the application and rejection letter because Plaintiff also did not
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meet the requirements for housing as set forth on the back-side of the 2007 application. 

Specifically, Defendants indicate that the 2007 application states that, to live in oncampus housing, an application “must be enrolled as a student at the University . . .” 

(Pl.’s Reply Ex. 5 ¶ I.) Defendants argue that “‘enrolled’ means that one is seeking

academic credit toward a degree.” (Defs.’ Resp. at 2.)

Defendants next argue that Plaintiff’s “newly discovered” documents do not alter

the Court’s conclusion in its April 20, 2009 opinion and order, that his FHA disparate

treatment claim fails as a matter of law. (Doc. 18 at 7-8.) In the Court’s previous

decision, it held that, because Plaintiff is not enrolled in a degree granting program, he is

not “otherwise qualified” for University housing– an element necessary to establish his

prima facie case of disparate treatment under the FHA. See supra at n. 1. This leads to

Defendants’ final argument as to why Plaintiff’s motion should be denied.

Defendants argue that Plaintiff’s proposed Second Amended Complaint fails to

allege sufficient facts to support a claim upon which relief can be granted. Specifically,

Defendants contend that Plaintiff does not allege the qualifications necessary to live in

on-campus housing and that he meets those qualifications. Defendants therefore argue

that Plaintiff fails to allege sufficient facts to support his legal conclusion that he is

“otherwise qualified” for University housing, as necessary to prevail on his disparate

treatment claim under the FHA.

Discussion

Federal Rule of Civil Procedure 15(a) provides that “[t]he court should freely give
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In fact, according to Plaintiff, he went to the University’s housing department in

early 2009, asking for a copy of his original housing application but was told that he or

his attorney had to request it from the legal department. (Pl.’s Reply Ex. 2 ¶ 4.) 

Plaintiff’s attorney sent a letter to Defendants’ attorney requesting a copy of the

application and Plaintiff’s housing file on April 6, 2009. (Id. Ex. 3.) In a letter dated

April 8, 2009, Defendants’ counsel denied the request, indicating that the documents

“will be provided in the normal course of discovery which, under the court rules, is still

not formally underway.” (Id. Ex. 4.) 

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leave when justice so requires.” Fed. R. Civ. P. 15(a). Nevertheless, a motion to amend a

complaint should be denied if the amendment is brought in bad faith or for dilatory

purposes, results in undue delay or prejudice to the opposing party, or would be futile. 

See Foman v. Davis, 371 U.S. 178, 182, 83 S. Ct. 227, 230 (1962). It is well-established,

however, “that delay alone is not a sufficient reason for denying leave.” Moore v. City of

Paducah, 790 F.2d 557, 562 (6th Cir. 1986) (citation omitted). The party opposing the

motion to amend also must demonstrate “[s]ome significant showing of prejudice” as a

result of the delay. Id.; see also Duggins v. Steak ‘N Shake, Inc., 195 F.3d 828, 834 (6th

Cir. 1999).

Defendants fail to identify any prejudice that they will suffer if Plaintiff is allowed

to file his proposed Second Amended Complaint. In any event, this Court cannot find

any undue delay by Plaintiff. While the application and rejection letter may have been in

the possession of Plaintiff’s parents since Fall 2007, they did not realize that they had the

documents until the weekend of April 11, 2009, even though Plaintiff had previously

looked for them.3

 (Pl.’s Reply Ex. 1 ¶¶ 1-3; Ex. 2 ¶¶ 2-3.) Plaintiff’s motion to amend

was filed on April 30, 2009. Moreover, the Court believes that the length of the delay in
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seeking an amendment is measured from when the case was initiated or the reason for the

amendment was discovered, whichever date is later, and when the amendment was

sought. The Court therefore does not agree with Defendants that Plaintiff delayed a year

and a half in asserting his claims based on the “new evidence.” (Defs.’ Resp. at 1.) 

The Court cannot conclude that Defendants are correct in their assertion that an

amendment is not warranted by the “new” documents. The Court is not convinced that

Plaintiff is not “enrolled as a student at the University,” as Defendants argue. If the

University previously restricted on-campus housing only to individuals enrolled as

students at the University and it is determined that Plaintiff meets that criteria, the

documents may show that Defendants discriminated against Plaintiff (by nevertheless

rejecting his application) or that Defendants’ claim that on-campus housing is restricted to

students in degree-granting programs is pretextual. For the same reason, the Court also

cannot find that it would be futile to allow Plaintiff to amend his complaint to assert his

proposed disparate treatment claim.

Finally, the Court concludes that the factual allegations in Plaintiff’s proposed

Second Amended Complaint are sufficient to state a viable disparate treatment claim

under the pleading requirements of Rule 8 of the Federal Rules of Civil Procedure. 

Plaintiff alleges that he was otherwise qualified for on-campus housing. (Compl. ¶ 67.) 

He further alleges that the application he completed for on-campus housing in late 2007

did not list among its terms and conditions that residents be matriculating students and, in

fact, the reason given for rejecting his application was that he was “not an admitted
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Oakland University student and [was] not registered for Winter 2008 classes.” (Id. ¶¶ 31,

35.) Plaintiff alleges that he in fact was enrolled in the University’s OPTIONS program

in Fall 2007, that as a student in the program he is required to take a minimum of 12

credit-hours of courses each semester and pay full tuition, and that when he applied for

housing in late Fall 2007, he was enrolled in the program and had or intended to register

for Winter classes in 2008. (Id. ¶¶ 24, 36.) These factual allegations provide more than

“a formulaic recitation of the elements of [his] cause of action.” See Bell Atlantic Corp.

v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 1965 (2007).

Conclusion

For the above reasons, the Court concludes that Plaintiff’s proposed amendment

should be allowed because “justice so requires.” Fed. R. Civ. P. 15(a).

Accordingly,

IT IS ORDERED, that Plaintiff’s motion for leave to file a second amended 
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complaint is GRANTED and Plaintiff shall file the second amended complaint within ten

(10) days.

s/PATRICK J. DUGGAN

UNITED STATES DISTRICT JUDGE

Copies to:

Chris E. Davis, Esq.

Robert A. Boonin, Esq.