The opinion of the court was delivered by: Prentice H. Marshall, District Judge.
This is an action under the Fair Housing Act, 42 U.S.C. § 3612
(1982), and two civil rights statutes, id. §§ 1981, 1982, alleging
racial discrimination in the rental of apartments at a two hundred unit
complex called Westmore Apartments in Lombard, Illinois. Plaintiffs are
black persons who sought apartments at the Westmore Apartments in April,
May, and June 1983. They were told that none was available; that is
alleged to have been untrue.*fn1 Plaintiffs seek damages and injunctive
Among the defendants are Southmark Management Corp. ("Southmark"),
which was responsible for rentals at the Westmore Apartments at the time
in question, and Renay Baron and Mary Theodore, two Southmark employees.
At the time of the conduct alleged in the complaint, defendant North
American Mortgage Investors ("North American") owned the Westmore
Apartments. "Westmore Apartments" is named as a defendant but is not
identified in the second amended complaint as being a legal entity. The
last defendant is Westmore Associates. The complaint alleges that
Westmore Associates purchased the Westmore Apartments from North American
shortly after the conduct alleged in the complaint.
Westmore Associates has moved to dismiss the second amended complaint
under Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which
relief may be granted. With respect to Westmore Associates, the only
allegations in the complaint are that shortly after the alleged wrongful
conduct, North American "sold Westmore Apartments to Westmore
Associates, an Illinois limited partnership, which continued the
discriminatory policies of the prior owner and manager . . . . Defendant
[Mary] Theodore continues as an agent of defendant, Westmore Associates."
Second Amended Complaint ¶ 9. Westmore Associates argues that this
allegation is not sufficiently detailed.
We must begin our consideration of defendant's motion with
Fed.R.Civ.P. 8(a), which requires only that a complaint contain "a short
and plain statement of the claim showing that the pleader is entitled to
relief." The Federal Rules of Civil Procedure do not require "fact
pleading," as shown by the form complaints appended to the rules. See,
e.g., Fed.R.Civ.P. forms 9 (complaint for negligence), 11 (complaint for
In Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 102, 2 L.Ed.2d 80
(1957), the Supreme Court addressed an argument similar to that made by
defendant here. The complaint in Conley alleged that plaintiffs, all
black persons, were employees of a railroad working in Texas. Defendant
labor union was the designated bargaining agent for the unit to which
plaintiffs belonged. The union's contract with the railroad protected
employees in certain respects from discharge and loss of seniority. In
May 1954 the railroad purported to abolish 45 jobs held by blacks and
discharged or demoted plaintiffs. Actually the jobs were not abolished
but were filled by whites. Despite repeated requests by plaintiffs, the
union, "acting according to plan," did nothing to protect plaintiffs and
refused to give them protection comparable to that given white
employees. The complaint alleged that the union had violated the Railway
Labor Act in that it had failed in general to represent blacks equally
and in good faith.
The defendants in Conley argued that the complaint failed to set forth
specific facts to support its "general allegations of discrimination and
that its dismissal [was] therefore proper." 355 U.S. at 47, 78 S.Ct. at
102. The Court resoundingly rejected this argument:
The decisive answer to this is that the Federal Rules
of Civil Procedure do not require a claimant to set
out in detail the facts upon which he bases his
claim. To the contrary, all the Rules require is a
short and plain statement of the claim that will give
the defendant fair notice of what the plaintiff's
claim is and the grounds upon which it rests. The
illustrative forms appended to the Rules plainly
demonstrate this. Such simplified "notice pleading" is
made possible by the liberal opportunity for discovery
and the other pretrial procedures established by the
Rules to disclose more precisely the basis of both
claim and defense and to define more narrowly the
disputed facts and issues. Following the simple guide
of Rule 8(f) that "all pleadings shall be so
construed as to do substantial justice," we have no
doubt that petitioners' complaint adequately set forth
a claim and gave the respondents fair notice of its
Id. at 47-48, 78 S.Ct. at 102-03 (footnotes omitted).
Similarly in this case, we have no doubt that the complaint gave
defendant fair notice of its basis. The complaint describes the policies
and practices of Westmore Associates' predecessors and states that
Westmore Associates has continued those policies. That provides defendant
with a sufficient basis for determining what it is alleged to have done.
If defendant did nothing to continue its predecessors' policies and
practices, it may be entitled to summary judgment under Fed.R.Civ.P. 56
(b), but that is not a basis for dismissing the complaint under
The three Seventh Circuit cases upon which defendant relies do not
dictate dismissal here. In Tamari v. Bache & Co., 565 F.2d 1194, 1199
(7th Cir. 1977), the court stated that on a motion to dismiss, "well
pleaded allegations of the complaint are to be taken as admitted, but mere
unsupported conclusions of fact or mixed fact and law are not admitted."
Tamari itself did not involve a pleading question; in any event, it must
be read in light of Conley v. Gibson, which states that the test is
whether plaintiff's allegations, if proved, would entitle plaintiff to
relief. That is plainly true here.
In Cohen v. Illinois Institute of Technology, 581 F.2d 658 (7th Cir.
1978), cert. denied, 439 U.S. 1135, 99 S.Ct. 1058, 59 L.Ed.2d 97 (1979),
the district court originally dismissed plaintiff's complaint under
42 U.S.C. § 1983 for failure to allege the requisite state action.
All that was alleged was that the state had offered some financial
support to defendant college. The court of appeals affirmed the first
dismissal because the level of financial support itself was not
sufficient to make defendant's actions "state action," and because there
was no factual allegation that the state had in any way approved the
conduct alleged. Plaintiff then sought leave to amend to allege that the
financial aid "significantly supports and contributes to the
effectiveness of the Defendants' conduct." The district court denied
leave to amend, stating that financial aid alone did not make the
college's actions state action. Funding alone, moreover, did not connote
approval for defendant's discriminatory conduct. The court of appeals
affirmed because there was no allegation of affirmative governmental
support or approval of defendant's conduct other than the financial
support, which alone did not show approval, and because plaintiff had
added nothing to the allegation of the amount of financial support to
support a claim that support alone made defendant a state actor. 581 F.2d
at 662-63. Cohen essentially presented an issue of the legal sufficiency
of the facts actually pleaded, not of the sufficiency of the factual
detail in the complaint.
Finally, defendant relies on Jafree v. Barber, 689 F.2d 640 (7th Cir.
1982) (per curiam). In Jafree plaintiff alleged that he was a "brown
oriental semite," that he filed with the Chicago office of the FBI
charges of criminal violations of his civil rights by state officers, and
that the FBI failed to investigate those charges "because of plaintiff's
race." Id. at 641-42. The district court dismissed the complaint because
plaintiff's allegations were "conclusory." Id. at 643. The court of
appeals affirmed, stating that "[t]o sufficiently state a cause of action
the plaintiff must allege some facts that demonstrate that his race was
the reason for the defendant's inaction," id. (emphasis in original), and
that plaintiff's failure to do so rendered his complaint insufficient.
We have serious doubt as to whether Jafree accords with Conley v.
Gibson, as we are hard pressed to see how a plaintiff can allege that a
defendant treated him differently due to his race other than by simply
stating that proposition.*fn3 In any event, this case is not Jafree.
Here the issue as presented by defendant relates not to defendant's
motivation but to what it did. The complaint, as we have stated, alleges
that defendant continued the policies of its ...