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June 29, 1981

UNITED STATES of America, Plaintiff,
YONKERS BOARD OF EDUCATION; City of Yonkers; and Yonkers Community Development Agency, Defendants

The opinion of the court was delivered by: SAND

The defendants in this action have filed various motions to sever, strike, and dismiss, as well as motions directed to the form of the complaint. There is also before the Court a motion by the National Association for the Advancement of Colored People ("NAACP"), Yonkers Branch, and an individual student, by her next friend, on behalf of themselves and all individuals similarly situated, to intervene in this proceeding. The defendants' motions to sever and dismiss are denied, without prejudice to renewal at a later stage in the proceedings, principally because they have been made prematurely. Plaintiff's allegations with respect to the interrelationship between housing and school segregation raise profound and complex factual and legal questions. However, it is inappropriate to deal with the defendants' contentions prior to any discovery or evidentiary presentation. The defendants' motions addressed to the form of the complaint are denied and the motion to intervene is granted.

The Complaint

We will first deal with a series of motions addressed to the complaint itself. In dealing with these motions, it must be recognized that there has as yet been no trial or evidentiary hearing held in these proceedings and that no facts developed during discovery have been presented. For the purposes of these motions, the Court must accept the allegations of the complaint and at this stage of the litigation, assume that all of the matters alleged in the complaint are true and provable. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 101-102, 2 L. Ed. 2d 80 (1957); Shear v. National Rifle Assoc., 196 U.S. App. D.C. 344, 606 F.2d 1251, 1253 (D.C.Cir.1979); George C. Frey Ready-Mixed Concrete, Inc. v. Pine Hill Concrete Mix Corp., 554 F.2d 551, 553 (2d Cir. 1977); Gumer v. Shearson Hammill & Co., 516 F.2d 283, 286 (2d Cir. 1974). An understanding of the motions and of the respective contentions of the parties requires a review of the challenged allegations of the complaint in some detail.

 By complaint filed December 1, 1980 against the Yonkers Board of Education ("School Board"), City of Yonkers ("City") and Yonkers Community Development Agency ("CDA"), the Attorney General, on behalf of the United States, instituted this proceeding to "enforce the provisions of Title IV of the Civil Rights Act of 1964, 42 U.S.C. § 2000c-6, Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq., the regulations of the United States Department of Education which implement Title VI, 34 C.F.R. § 100.8, Title VIII of the Civil Rights Act of 1968 (the Fair Housing Act), 42 U.S.C. § 3601 et seq., the Fourteenth Amendment to the United States Constitution, and the contractual assertions made by the defendant Yonkers Board of Education in consideration of its continuing receipt of federal financial assistance." Complaint, P 1.

 The complaint alleges that the defendant Yonkers Board of Education is a body corporate entrusted with the general management and control over the educational affairs in the Yonkers School District, a department of the defendant, City of Yonkers. The defendant, the City of Yonkers, the complaint alleges, is a municipal corporation governed by an elected City Council and Mayor and an appointed City Manager. Id., P 4. It exercises, according to the complaint, control over the school board through its control over the budget and disbursal of monies to the school board "including but not limited to, expenditures for such items as employee salaries, construction of schools, and the purchase or sale of real property." Id., P 4(a). It is further alleged that the Mayor of the City of Yonkers appoints all nine members of the school board. Id., P 4(b). The defendant Yonkers Community Development Agency is, according to the complaint, a body corporate doing business in Yonkers, governed by seven members, including the City Manager of Yonkers, the Mayor of Yonkers, the Corporation Counsel for the City of Yonkers, the City Comptroller and two City residents appointed by the Mayor with the advice and consent of the City Council. Id., P 5.

 The complaint alleges further that "the schools in the Yonkers City School District are substantially segregated by race" id., P 15, and that "(t)he segregated condition of the public schools operated by the School Board has been caused, in substantial part, by intentional, racially discriminatory actions and omissions by the defendant School Board and the defendant City of Yonkers. Paragraph 17 of the complaint enumerates "specific racially discriminatory practices of the School Board which have resulted in the unlawful segregation of students by race" and paragraph 19 of the complaint alleges that "specific racially discriminatory practices of the defendant City of Yonkers which have resulted in the unlawful segregation of students by race include, but are not limited to, the following: (a) the selection of sites for public and subsidized housing units which intentionally and effectively perpetuated and seriously aggravated racial segregation in the City of Yonkers and in the Yonkers School District; and (b) the appointment to the School Board, since 1975, of individuals opposed to the desegregation of the Yonkers Public Schools."

 The Motion to Sever

 The School Board has moved, pursuant to Fed.R.Civ.P. 21, to sever the "plaintiff's claims against the Yonkers Board of Education from those against the Yonkers Community Development Agency." *fn1" In support of this motion, the School Board alleges:

"Plaintiff's Complaint contains two separate and distinct areas of alleged wrongdoing. First plaintiff alleges that the Yonkers Board of Education has unlawfully operated the public schools. Second, plaintiff alleges that the Yonkers Community Development Agency has unlawfully located, constructed and operated subsidized housing in the City of Yonkers. It is clear that the Board of Education has no authority over any aspect of public housing and that the Community Development Agency has no authority over the public schools. If either has been guilty of wrongdoing, the other cannot be held responsible or be required to undertake remedial action therefor.
These two separate claims should be ordered severed in order to reach a speedy and inexpensive determination of each of plaintiff's allegations." School Board Motion to Sever, P 1.

 Further, the Board relies on language contained in Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 22-23, 91 S. Ct. 1267, 1279, 28 L. Ed. 2d 554 (1971) and Hart v. Community School Board, 512 F.2d 37, 41 (2d Cir. 1975) wherein the federal courts are admonished not to seek, in school desegregation cases, to deal too broadly with all of the ills of our society, including all aspects of racial discrimination. The School Board also contends that discovery costs will be reduced by severance because the City and the School Board will not be required to send representatives to each other's depositions.

 Plaintiff responds that the motion to sever should be denied because misjoinder under Rule 20(a) has not occurred, and because "the gravamen of the United States' complaint (is) that the City, with and through two agencies under its jurisdiction and authority, has implemented a policy of racially motivated discrimination which has promoted unlawful racial segregation in the public schools and in housing patterns throughout Yonkers." Response of the United States in Opposition at 13. Plaintiff disputes the Board's contention that severance will reduce discovery costs, based on the identity of claims asserted against the City and the CDA. *fn2" Finally, the United States argues that it is proper to include in one lawsuit both housing discrimination and school desegregation claims.

 The School Board's motion is based on Rule 21, which grants discretion to the Court to sever a claim or party which has been misjoined. The standards for joinder of defendants are provided by Fed.R.Civ.P. 20(a), as follows:

"All persons ... may be joined in one action as defendants if there is asserted against them jointly, severally, or in the alternative, any right to relief in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all defendants will arise in the action. A plaintiff or defendant need not be interested in obtaining or defending against all the relief demanded. Judgment may be given for one or more of the plaintiffs according to their respective rights to relief, and against one or more defendants according to their respective liabilities."

 Thus, the motion to sever should be denied if plaintiff's claims against the School Board, the City and the CDA (1) relate or arise out of the same transaction or occurrence or series of transactions or occurrences and (2) if a question of law or fact common to all defendants will arise. *fn3" "There is no rigid rule as to what constitutes the same series of transactions or occurrences for purposes of joinder under Rule 20." Vulcan Society of Westchester v. Fire Department of the City of White Plains, supra note 3 at 387 (citation omitted). Moreover, Rule 20 should be interpreted to encourage "the broadest possible scope of action consistent with fairness to the parties....", United Mine Workers v. Gibbs, 383 U.S. 715, 724, 86 S. Ct. 1130, 1138, 16 L. Ed. 2d 218, and to prevent multiple lawsuits. See League to Save Lake Tahoe v. Tahoe Regional Planning Agency, 558 F.2d 914, 917 (9th Cir. 1977); Mosley v. General Motors Corp., 497 F.2d 1330, 1332-33 (8th Cir. 1974). Rule 20(a) has been described variously as requiring a logical or reasonable relationship, Mosley v. General Motors Corp., supra at 1333; or simply "enough ultimate factual concurrences that it would be fair to the parties to require them to defend jointly," Hall v. E. I. Du Pont De Nemours & Co., 345 F. Supp. 353, 381 (E.D.N.Y.1972) (quoting Eastern Fireproofing Co., Inc. v. United States Gypsum Co., 160 F. Supp. 580, 581 (D.Mass.1958) ). See generally, e.g., C.A.B. v. Carefree Travel, Inc., supra note 3, 513 F.2d at 384 (joinder proper where "(t)he operative facts are related, even if the same transaction is not involved"); Nassau County Association of Insurance Agents, Inc. v. Aetna Life & Casualty Co., 497 F.2d 1151, 1154 (2d Cir.) (thousands of unrelated transactions did not provide basis for joinder absent allegation of any connection between practices of 164 defendants) cert. denied 419 U.S. 968, 95 S. Ct. 232, 42 L. Ed. 2d 184 (1974). Under either version of the Rule 20(a) requirement, we find it satisfied here.

 Plaintiff has alleged that the City, through the School Board and the CDA, has implemented a racially discriminatory policy. The allegations in the complaint against the School Board, the City, and the CDA and their interrelated activities are logically related and constitute a series of transactions or occurrences within the meaning of Rule 20(a). See Poindexter v. Louisiana Financial Assistance Commission, 258 F. Supp. 158, 166-67 (E.D.La.1966) aff'd 393 U.S. 17, 89 S. Ct. 48, 21 L. Ed. 2d 16 (1968). In addition, questions of law and fact common to all defendants will arise in this action. Examples of common factual questions include the interrelationship, in terms of control and coordination, of the three defendants, and whether there has been intentional action by these defendants. A common legal question is whether, and by what means, such intent must be shown. We therefore conclude that the requirements and underlying purposes of Rule 20(a) have been satisfied.

 The School Board does not propose a different Rule 20(a) analysis. *fn4" Rather, the School Board appears to seek a severance primarily because of its view that school desegregation and housing discrimination claims may not be brought in one action. It is on this basis that the School Board invokes the Court's discretion to sever under Rule 21. As noted, the School Board relies on language in Swann v. Charlotte Mecklenburg Board of Education, 402 U.S. 1, 22-23, 91 S. Ct. 1267, 1279, 28 L. Ed. 2d 554 (1971) and Hart v. Community School Board, 512 F.2d 37, 41 (2d Cir. 1975), to the effect that "one vehicle can carry only a limited amount of baggage." The School Board also argues that its responsibilities are distinct from those of the CDA and that therefore, they should not be joined, with the resulting increase in discovery costs due to the necessity of attending discovery sessions applying to the other agency only.

 The United States responds that this is not a case in which an action brought solely against a school board is sought to be expanded to encompass other community problems. We agree. Here, the complaint, the allegations of which we must accept for the purposes of this motion, alleges in the first instance that the actions of the City, the School Board and the CDA have had the total and combined effect of causing and perpetuating racial segregation. According to the complaint, the School Board and the CDA are agencies of the City and cannot be viewed as unrelated. The defendants contend that the School Board is a State, rather than a City agency, but it is not contested that the City appoints all of the School Board members and that the City provides funding to the schools. Thus, with respect to plaintiff's contention that the City exercises at least some control over the School Board as ...

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