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UNITED STATES v. BEETHOVEN ASSOCS. L.P.

February 1, 1994

UNITED STATES OF AMERICA, Plaintiff,
v.
BEETHOVEN ASSOCIATES LIMITED PARTNERSHIP, SECOND BIDDLE ASSOCIATES LIMITED PARTNERSHIP, MARYLAND PROPERTY GROUP, INC., and PHYLLIS STEUFFENBERG, Defendants.



The opinion of the court was delivered by: PAUL E. PLUNKETT

 This case is premised on two complaints filed with the United States Department of Housing and Urban Development ("HUD") in June 1991. One of those complaints was filed by South Suburban Housing Center ("SSHC"), a fair housing and counseling organization, which alleged that the defendants violated the Fair Housing Act (the "Act"), 42 U.S.C. § 3601 et seq., by interfering with SSHC's efforts to promote equal opportunity in housing and by interfering with SSHC's ability to provide advice and information on available housing to families with children in the south suburban Chicago area. The second complaint filed with HUD was brought by Al Razik ("Razik"), who alleged that the Defendants violated the Act by refusing to rent or negotiate for rental a three-bedroom apartment to him, his wife, and their four minor children.

 The Act prescribes certain administrative prerequisites to the bringing of formal enforcement proceedings. As an initial matter, an aggrieved individual must file a complaint with HUD identifying the alleged discriminatory practice. 42 U.S.C. § 3610(a). Once the administrative complaint is filed, HUD is obliged to notify the respondent of the complaint and conduct an investigation of the alleged discriminatory practice. 42 U.S.C. § 3610(a) and (b). HUD notified Beethoven and Second Biddle of the complaints in September, 1991 pursuant to 42 U.S.C. § 3610(a)(B)(ii).

 After conducting its investigation, if HUD finds that reasonable cause exists to believe that a violation of the Act has occurred, HUD must issue a formal charge for further proceedings under the Act. 42 U.S.C. § 3610(g). Once such a charge is issued, any party may elect to have the matter resolved in a civil action, whereupon the Attorney General must commence an appropriate civil action. 42 U.S.C. § 3612(a) and (o). The Defendants have chosen to have the matter resolved before this court.

 Section 3610(g)(1) of the Fair Housing Act requires the Secretary of HUD to make a determination whether reasonable cause to find a violation exists within 100 days of the filing of the complaint. 42 U.S.C. § 3610(g)(1). However, where it is impracticable to proceed at that pace, the Secretary may notify the respondents in writing of the reason for not doing so. Specifically, the Act states:

 
The Secretary [of HUD] shall, within 100 days after the filing of the complaint . . ., determine based on the facts whether reasonable cause exists to believe that a discriminatory housing practice has occurred . . ., unless it is impracticable to do so. . . . If the Secretary is unable to make the determination within 100 days after the filing of the complaint . . ., the Secretary shall notify the complainant and respondent in writing of the reasons for not doing so.

 42 U.S.C. § 3610(g)(1)

 Ten days after filing the amended complaints, HUD notified Sunset Lake Apartments and Ms. Steuffenberg that processing of the complaint was delayed due to the need for additional information and analysis. (Exs. E, F to Plaintiff's Memo. in Opp.) Apparently, no further communication was sent to the Defendants until April 1, 1993, more than 539 days after the filing of the complaint, when HUD issued a finding of reasonable cause.

 The Defendants have filed a 12(b)(1) motion to dismiss for lack of subject matter jurisdiction. They argue that HUD's failure to notify them within 100 days under section 3610 acts as a jurisdictional bar to proceeding in this case.

 Discussion

 On a motion to dismiss, the court views the allegations of the complaint as true, along with reasonable inferences therefrom, and views these in the light most favorable to the plaintiff. Dawson v. General Motors, 977 F.2d 369, 372 (7th Cir. 1992); Powe v. Chicago, 664 F.2d 639, 642 (7th Cir. 1981). A complaint should not be dismissed with prejudice unless it appears beyond doubt that the plaintiff is unable to prove any set of facts consistent with the complaint which would entitle the plaintiff to relief. Bartholet v. Reishauer A.G., 953 F.2d 1073, 1078 (7th Cir. 1992). Unless otherwise provided by Rule 9 of the Federal Rules of Civil Procedure, facts need not be plead with particularity. Leatherman v. Tarrant County Narcotics and Intelligence Unit, 122 L. Ed. 2d 517, 113 S. Ct. 1160, 1163 (1993). However, we need not credit conclusions of law. See Reichenberger v. Pritchard, 660 F.2d 280, 282 (7th Cir. 1981); Mescall v. Burrus, 603 F.2d 1266, 1269 (7th Cir. 1976). See also 5A Charles Wright and Arthur Miller, Federal Practice and Procedure, § 1357 at 311-18 (2d ed. 1990). Nevertheless, a plaintiff must allege sufficient facts to outline the cause of action, proof of which is essential to recovery. Ellsworth v. Racine, 774 F.2d 182, 184 (7th cir. 1985), cert. denied, 475 U.S. 1047, 89 L. Ed. 2d 574, 106 S. Ct. 1265 (1986) (citations omitted).

 Lack of subject matter jurisdiction is appropriately raised in a motion to dismiss under Fed. R. Civ. P. 12(b)(1). Barnhart v. United States, 884 F.2d 295, 296 (7th Cir.1989), cert. denied, 495 U.S. 957, 109 L. Ed. 2d 743, 110 S. Ct. 2561 (1990). Rule 12(b)(1) motions to dismiss in the civil rights context are scrutinized with special care, Mercado v. Kingsley Area Schools Traverse City Public Schools Adult Educ. Consortium, 727 F. Supp. 335, 338 (W.D. Mich. 1989), and are disfavored. Mahoney v. NOW, 681 F. Supp. 129, 135 (D. Conn. 1987). Once questioned, however, it becomes the plaintiff's burden to establish that all jurisdictional requirements have been satisfied. Kontos v. United States Dept. of Labor, 826 F.2d 573, 576 (7th Cir. 1987).

 Because the present motion sounds under 12(b)(1), lack of subject matter jurisdiction, we may consider matters outside of the pleadings. See, e.g. 5A Charles A. Wright and Arthur R. Miller, Federal Practice and Procedure, § 1350 at 213 (2d ed. 1990) (citing Kontos, 826 F.2d at 576). Thus, we may look beyond the jurisdictional allegations in the complaint and view whatever evidence has been submitted in response to the motion. Roman v. United States Postal Serv., 821 F.2d 382, 385 (7th Cir.1987).

 The Defendants have moved to dismiss this case because HUD failed to comply with the 100-day limit of section 3610, which they regard as a jurisdictional requirement. They argue that HUD neither made a reasonable cause determination within one hundred days nor notified them in writing of the reasons for that failure. Judge Norgle has recently discussed the issue and sided with the Defendants, dismissing an essentially similar case involving the same Complainants because HUD failed to meet the requirements of § 3610(g)(1). United States v. Aspen Square Mgmt., 817 F. ...


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