The opinion of the court was delivered by: Hon. Norman A. Mordue, Chief U.S. District Judge
MEMORANDUM-DECISION AND ORDER
The United States brings this action to enforce Title VIII of the Civil Rights Act of 1968, as amended by the Fair Housing Amendments Act of 1988 ("Fair Housing Act"), 42 U.S.C. § 3601, et seq. Presently before the Court are the following motions
(1) A motion by plaintiff United States of America (Dkt. No. 123) for partial summary judgment awarding it summary judgment as to liability against all defendants except Clifton Court Apartments, L.L.C.,*fn1 requiring them to submit a detailed remedial plan; and setting trial on compensatory and punitive damages;
(2) A cross motion (Dkt. No. 138) by defendant Yates Scott Lansing for summary judgment dismissing all claims against him;
(3) A cross motion by Mountain Ledge Development Corp., Mountain Ledge L.P., Mountain Ledge L.L.C., and Michael Dennis (Dkt. No. 142) to dismiss all claims against them;
(4) A cross motion (Dkt. No. 140) by defendants Bruce Tanski and Bruce Tanski Construction and Development Company, L.L.C. to dismiss certain claims against them; and
(5) A letter motion (Dkt. No. 149) by the United States to strike an exhibit to the Mountain Ledge defendants' motion papers and to compel the Mountain Ledge defendants to produce documents.
For the reasons set forth below, the United States' motion for partial summary judgment is granted in part and denied in part; the cross motions are denied; and the United States' letter motion is granted.
In the second amended complaint (Dkt. No. 122), the United States alleges that defendants failed to design and construct apartment units in compliance with the Fair Housing Act. There are seven apartment complexes in issue: the McGregor Village Apartments and six properties referred to herein as the "Tanski properties," viz., Clifton Court North Apartments; Carol Jean Estates; Cranberry Estates; Andrea Court; Halfmoon Court; and Pine Ridge II Apartments. The United States also claims that defendants Mountain Ledge Development Corp., Mountain Ledge L.P., Mountain Ledge L.L.C., and Michael Dennis ("Mountain Ledge defendants") failed to give reasonable accommodation to a handicapped tenant, also in violation of the Fair Housing Act.
The second amended complaint alleges that the Mountain Ledge defendants own and operate McGregor Village Apartments. Michael Dennis is the sole shareholder, officer, and director of Mountain Ledge Development Corp.*fn2 , which is the general partner in Mountain Ledge, L.P., a member of Mountain Ledge, L.L.C. The sole business of Mountain Ledge, L.L.C. is to own and operate the McGregor Village Apartments. Dennis participated in the design and construction of the McGregor Village Apartments and in its management.
Defendant Yates Scott Lansing ("Lansing") is an engineer. The second amended complaint alleges that he provided architectural or engineering services in connection with the design or construction of McGregor Village Apartments.
Defendant Bruce Tanski built the Tanski properties in his individual capacity. In April 1998 he formed defendant Bruce Tanski Construction and Development, L.L.C., of which he is sole officer and director. Bruce Tanski Construction and Development, L.L.C. has engaged in the business of constructing single-family homes, townhouses, and the McGregor Village Apartments. Defendants Bruce Tanski and Bruce Tanski Construction and Development, L.L.C. are referred to herein as the "Tanski defendants."
The United States alleges that the Mountain Ledge defendants, the Tanski defendants, and Lansing failed to design and construct 106 covered units in the McGregor Village Apartments in the Town of Wilton, New York, to be accessible to persons with disabilities. The United States alleges that the Mountain Ledge and Tanski defendants committed these violations despite actual and repeated notice of the accessibility requirements of state and federal law. The United States further claims that the Mountain Ledge defendants, despite actual knowledge that they had participated in designing and constructing inaccessible apartments, repeatedly refused to respond to the reasonable accommodation requests of Gloria Minet, a handicapped tenant at McGregor Village Apartments, to correct certain of those violations.
The United States also alleges that the Tanski defendants failed to design and construct 256 covered units at the Tanski properties to be accessible to persons with disabilities.
The second amended complaint sets forth three counts. Count I states a claim under 42 U.S.C. § 3612(o). Count II states a claim under 42 U.S.C. § 3614(a).*fn3 Count III is not in issue in these motions.
Count I -- Section 3612(o) -- Complaint of Housing Discrimination
Count I of the second amended complaint states a claim under 42 U.S.C. § 3612(o), founded on a housing discrimination complaint filed with HUD on February 19, 2002, by Gloria Minet, an allegedly handicapped tenant at McGregor Village Apartments.*fn4 Upon receiving her complaint, HUD investigated, determined that there was reasonable cause to believe that the defendants engaged in discriminatory housing practices, and, on April 28, 2004, issued a charge of discrimination pursuant to 42 U.S.C. § 3610(g)(2)(A).*fn5 Instead of having the charge heard by an administrative law judge, defendants elected to have it decided in a civil action on behalf of Gloria Minet in United States district court, as permitted by 42 U.S.C. § 3612(a). Accordingly, HUD terminated the administrative proceeding on Gloria Minet's complaint and authorized the United States Attorney General to commence a civil action pursuant to section 3612(o).
In Count I, based on Gloria Minet's HUD complaint, the United States claims that defendants failed to design or construct McGregor Village Apartments so that:
(a) the public use and common use portions are readily accessible to and usable by individuals with disabilities;
(b) all doors within the ground-floor units are sufficiently wide to allow passage by persons with disabilities who use wheelchairs; and
(c) the ground-floor units contain the following features of adaptive design: (i) an accessible route into and through the dwelling; (ii) electrical outlets, thermostats and other environmental controls in accessible locations; (iii) reinforcements in bathroom walls to allow later installation of grab bars; and (iv) usable kitchens and bathrooms such that an individual using a wheelchair can maneuver about the space.
Count I charges that, through the above conduct, defendants have discriminated on the basis of handicap in the rental of dwellings, in violation of 42 U.S.C. § 3604(f)(1); discriminated on the basis of handicap in the rental of a dwelling or in the provision of services or facilities in connection with a dwelling, in violation of 42 U.S.C. § 3604(f)(2); and failed to design or construct dwellings in compliance with the accessibility and adaptability features mandated by 42 U.S.C. § 3604(f)(3)(C). Count I alleges that the Tanski and Mountain Ledge defendants had notice, before the design or construction of McGregor Village Apartments was completed, that it was not designed or constructed in compliance with federal accessibility requirements.
Count I further alleges that the Mountain Ledge defendants discriminated on the basis of handicap by failing to make reasonable accommodations in their rules, policies, practices, and services, such as are necessary to afford the handicapped person equal opportunity to use and enjoy the dwelling, in violation of 42 U.S.C. § 3604(f)(1) and (f)(3)(B). This claim is not asserted against the Tanski defendants or Lansing.
Count I avers that Gloria Minet is an aggrieved person, as defined in 42 U.S.C. § 3602(i); that she has suffered damages as a result of the defendants' conduct; and that the defendants' discriminatory actions were intentional, willful, and taken in disregard of Gloria Minet's rights.
Count II -- Section 3614(a) - Pattern or Practice of Housing Discrimination Count II of the second amended complaint relies on section 3614(a),*fn6 which authorizes the Attorney General to bring suit where he has reasonable cause to believe defendant (1) has engaged in a pattern or practice of discrimination; or (2) has denied rights to a group of persons, and the denial raises an issue of "general public importance."
During its investigation of Gloria Minet's complaint, HUD concluded that it had reason to believe that grounds existed for commencement of proceedings against defendants under section 3614(a). In March 2004, in accordance with 42 U.S.C. § 3610(e)(2), HUD transmitted to the United States Attorney General the information upon which HUD based such belief. On June 21, 2004, the United States brought this action.
Count II is founded on the United States' contention, based upon its investigations, that the ground-floor units at McGregor Village Apartments and the Tanski properties are subject to the design and construction requirements of 42 U.S.C. § 3604(f)(3)(C) and that they fail to comply therewith, resulting in the same Fair Housing Act violations as are charged in Count I.
The evidence, the United States contends, establishes a cause of action under section 3614(a) in two ways: first, it establishes that defendants engaged in a pattern or practice of resistance to the full enjoyment of rights under the Fair Housing Act, and second, it establishes that defendants' violations of the Fair Housing Act deny a group of people rights guaranteed under the Fair Housing Act and raises an issue of general public importance.
Count III alleges discrimination by Bruce Tanski and Clifton Court Apartments, L.L.C., on the basis of familial status. Count III is not at issue in the motions presently before the Court.
In connection with Counts I and II, the second amended complaint requests the following relief: (1) an order declaring that the defendants' policies and practices violate the Fair Housing Act; (2) an order enjoining defendants from the following: failing or refusing to bring the covered units and public and common use areas at the subject complexes into compliance with 42 U.S.C. § 3604(f)(3)(C); failing or refusing to take such affirmative steps as may be necessary to restore, as nearly as practicable, the victims of the defendants' unlawful practices to the position they would have been in but for the discriminatory conduct; designing or constructing covered multifamily dwellings in the future that do not contain the accessibility and adaptability features required by 42 U.S.C. § 3604(f)(3)(C); and failing or refusing to make reasonable accommodations as required by 42 U.S.C. § 3604(f)(3)(B); (3) an award of monetary damages, pursuant to 42 U.S.C. §§ 3612(o)(3), 3613(c)(1), and 3614(d)(1)(B), to all persons harmed by the defendants' discriminatory practices, including Gloria Minet; and (4) an assessment of a civil penalty against each defendant in an amount authorized by 42 U.S.C. § 3614(d)(1)(C), to vindicate the public interest.
The United States' Motion
The United States contends that it has established as a matter of law that defendants discriminated against the handicapped by designing and constructing covered dwellings that do not have the accessibility features required by 42 U.S.C. § 3604(f)(3)(C). It further contends that it has established a matter of law that the Mountain Ledge defendants discriminated against Gloria Minet by failing to make reasonable accommodations as required by 42 U.S.C. § 3604(f)(3)(B). The United States moves (Dkt. No. 123) for partial summary judgment awarding judgment as to liability against all defendants; requiring defendants to submit detailed remedial plans; and setting trial on compensatory and punitive damages.
Lansing cross-moves (Dkt. No. 138) for summary judgment dismissing all claims against him on the grounds that they are barred by statutes of limitations and that he did not participate in the design or construction of the McGregor Village Apartments within the meaning of 42 U.S.C. § 3604(f)(3)(C).
The Mountain Ledge Defendants' Cross Motion
The Mountain Ledge defendants cross-move (Dkt. No. 142) for summary judgment on the following grounds: that they did not design or construct the McGregor Village Apartments within the meaning of 42 U.S.C. § 3604(f)(3)(C); that there are questions of fact regarding whether McGregor Village Apartments fail to comply with that section; that the Mountain Ledge defendants made reasonable accommodations for allegedly handicapped tenants; that there is indisputable evidence that Gloria Minet is not handicapped; that there is no evidence to support a claim for civil penalties or punitive damages; and that claims by plaintiff and Gloria Minet for monetary damages are barred by the applicable statutes of limitations.
The Tanski Defendants' Cross Motion
The Tanski defendants cross-move (Dkt. No. 140) for partial summary judgment dismissing, on statute of limitations grounds, the United States' claims (a) on behalf of Gloria Minet; (b) for monetary damages behalf of aggrieved persons, and (c) for civil penalties.
The United States' Letter Motion
Finally, the United States moves by letter motion (Dkt. No. 149) (1) to strike Exhibit 19 to the Mountain Ledge defendants' cross-motion for summary judgment; and (2) to compel the Mountain Ledge defendants to disclose responses to questionnaires they sent to residents at McGregor Village Apartments.
The Court first addresses the United States' letter motion. Then, in an effort to simplify the discussion, the Court addresses certain issues that arise in two or more motions. These issues are: (1) statutes of limitations; (2) design and construction violations; and (3) handicapped status of Gloria Minet. The Court then addresses the cross motions (and related issues in the United States' motion) as follows: (1) Lansing's cross motion; (2) Mountain Ledge defendants' cross motion; and (3) Tanski defendants' cross motion. Finally, the Court sets forth its conclusions on liability and its rulings on the relief requested by the United States.
United States' Letter Motion
By letter motion (Dkt. No. 149) the United States seeks relief related to certain exhibits attached to the papers submitted by the Mountain Ledge defendants in opposition to the United States' motion and in support of the Mountain Ledge defendants' cross motion (Dkt. No. 142).
First, the United States seeks to strike Exhibit 19, a declaration from a private investigator and videotaped footage of Gloria Minet taken in March 2006. The Court grants this request to the extent that Exhibit 19 will not be considered on this motion. In itself, Exhibit 19 is not relevant to the question of whether Gloria Minet was handicapped within the meaning of the Fair Housing Act during the times in issue. The Court does not now rule on its admissibility at trial.
The United States also seeks disclosure of all responses to a questionnaire sent by the Mountain Ledge Companies to residents at McGregor Village Apartments. The responses received from five tenants -- Christy Morey, Joanne Guljas, Wayne Brown, Linda Walowit, and Melissa Harrington -- along with supporting declarations, are attached as Exhibits 6 through 10 to the Mountain Ledge defendants' papers. In response to the United States' request for disclosure of any other tenants' responses to the questionnaire, the Mountain Ledge defendants simply asserted that they were "protected by the work-product privilege."
The Court holds that the United States is entitled to discovery of all tenants' responses to the questionnaire, not just those which the Mountain Ledge defendants choose to disclose. By relying on some tenants' responses, the Mountain Ledge defendants have waived any right to protection with respect to any other tenants' responses. It would be manifestly unfair to permit the Mountain Ledge defendants to adduce five tenants' responses (presumably the most favorable to the Mountain Ledge defendants) in support of their position and conceal whatever others they have received. See generally Trudeau v. New York State Consumer Protection Bd., 237 F.R.D. 325, 340 (N.D.N.Y. 2006). And to the extent that the questionnaire itself (as distinguished from the tenants' responses) may be said to disclose the litigation strategy or legal theories of the Mountain Ledge defendants or their attorneys, any protection was waived when the content of the questionnaire itself was disclosed along with the five tenants' responses. The Mountain Ledge defendants are not entitled to the protection of the work-product doctrine in this respect.
Thus, the letter motion (Dkt. No. 149) is granted, the Mountain Ledge defendants' Exhibit 19 to Dkt. No. 142 is stricken for purposes of these motions, and the Mountain Ledge defendants are directed to disclose all tenants' responses to the questionnaire in issue.
Statute of Limitations Issues
The motions before the Court raise a number of issues regarding statutes of limitations.
Because these issues affect aspects of more than one motion, the Court now addresses the issues independently of any particular motion. The issues are addressed in the following order:
1. The United States' claims for equitable relief;
2. The United States' claims for civil penalties relative to McGregor Village Apartments; and
3. The United States' claims for compensatory damages for aggrieved persons. Section 3614(a) itself does not have a specific statute of limitations attached to it; accordingly, the statute of limitations controlling actions under that section varies according to the requested remedy. See United States v. Hallmark Homes, Inc., 2003 WL 23219807, *3 (D.Idaho).
The United States argues that no statute of limitations applies to its requests for equitable relief in the form of declaratory and injunctive relief. It is well established that, unless Congress expressly provides otherwise, the United States is not bound by statutes of limitations. See United States v. Incorporated Village of Island Park, 791 F.Supp. 354, 364 (E.D.N.Y.1992) (citing Guaranty Trust Co. of N.Y. v. United States, 304 U.S. 126, 132-33 (1938)). Neither the Fair Housing Act nor any other federal law imposes a statute of limitations on actions for injunctive relief brought by the United States under section 3614(a); as a result, such actions are not subject to any statute of limitations. See, e.g., United States v. Harrison, 188 F.Supp.2d 77, 80 (D.Mass. 2002); Island Park, 791 F.Supp. at 365. Thus, the United States' claims for injunctive and declaratory relief under the Fair Housing Act are not time-barred.
Civil Penalties for McGregor Village Apartments
The applicable statute of limitations for actions for civil penalties stemming from violations of 42 U.S.C. § 3614(a) is found in 28 United States Code § 2462, "Time for commencing proceedings," which provides:
Except as otherwise provided by Act of Congress, an action, suit or proceeding for the enforcement of any civil fine, penalty, or forfeiture, pecuniary or otherwise, shall not be entertained unless commenced within five years from the date when the claim first accrued if, within the same period, the offender or the property ...