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Myers v. Condominiums of Edelweiss, Inc.

United States District Court, Seventh Circuit

August 29, 2013



GARY FEINERMAN, District Judge.

Barbara Myers brought this suit against Condominiums of Edelweiss, Inc. ("Condominiums"), the governing body of her residential development, and five members of its Board of Managers, Eugene Smaciarz, Clorinda Lopez, Judith A. Galati, Mary Lou Degedio, and Renee Weighill, alleging violations of the Fair Housing Act ("FHA"), 42 U.S.C. § 3601 et seq., and state law claims for intentional and negligent infliction of emotional distress. Doc. 1. Months after the case was filed, Myers moved for judgment on the pleadings on the FHA claim, and Defendants cross-moved for summary judgment on all three claims. Docs. 31, 33. The court denied both motions, 2011 WL 4337018 (N.D. Ill. Sept. 14, 2011), and the parties proceeded to discovery. Now before the court is Myers's motion for summary judgment on the FHA claim and Defendants' cross-motion for summary judgment on all three claims. Docs. 62, 70. For the following reasons, Myers's motion is denied and Defendants' motion is granted in part and denied in part.


Defendants' Local Rule 56.1(b)(3)(B) response, Doc. 73, fails to address ¶¶ 1-3, 5-28, 31-32, 39-42, 47, and 49-51 of Myers's Local Rule 56.1(a)(3) statement, Doc. 65. Accordingly, the facts set forth in those paragraphs are deemed admitted. See N.D.Ill. Local Rule 56.1(b)(3)(C) ("All material facts set forth in the statement required of the moving party will be deemed to be admitted unless controverted by the statement of the opposing party."); Keeton v. Morningstar, Inc., 667 F.3d 877, 880, 884-85 (7th Cir. 2012); Parra v. Neal, 614 F.3d 635, 636 (7th Cir. 2010); Rao v. BP Prods. N. Am., Inc., 589 F.3d 389, 393 (7th Cir. 2009); Cady v. Sheahan, 467 F.3d 1057, 1061 (7th Cir. 2006); Raymond v. Ameritech Corp., 442 F.3d 600, 608 (7th Cir. 2006); Schrott v. Bristol-Myers Squibb Co., 403 F.3d 940, 944 (7th Cir. 2005); Koszola v. Bd. of Educ. of City of Chi., 385 F.3d 1104, 1109 (7th Cir. 2004); Smith v. Lamz, 321 F.3d 680, 682-83 (7th Cir. 2003). In certain instances, Defendants moved "to strike" particular assertions in Myers's Local Rule 56.1(a)(3) statement. Doc. 73 at ¶¶ 29-30, 33-38, 43-46, 48, 52. Because Defendants' arguments are unpersuasive, those paragraphs of Myers's Local Rule 56.1(a)(3) statement are deemed admitted as well.

Myers's Local Rule 56.1(b)(3)(B) response, Doc. 79, to Defendants' Local Rule 56.1(a)(3) statement, Doc. 72, in some instances fails to cite the record or other material to support her denial of Defendants' factual assertions. Doc. 79 at ¶¶ 5, 7, 9. Under Local Rule 56.1(b)(3)(B), a movant's asserted fact is deemed admitted despite a non-movant's denial if evidence cited by the movant's Local Rule 56.1(a)(3) statement supports the factual assertion and the non-movant's Local Rule 56.1(b)(3)(B) response cites no evidence to support its denial. See N.D.Ill. L.R. 56. 1(b)(3)(B) (requiring the non-movant to file "(3) a concise response to the movant's statement that shall contain:... (B) a response to each numbered paragraph in the moving party's statement, including, in the case of any disagreement, specific references to the affidavits, parts of the record, and other supporting materials relied upon ") (emphasis added); Smith, 321 F.3d at 682-83; Leibforth v. Belvidere Nat'l Bank, 337 F.3d 931, 934 n.1 (7th Cir. 2003); Bordelon v. Chi. Sch. Reform Bd. of Trs., 233 F.3d 524, 528 & n.4 (7th Cir. 2000). Accordingly, ¶¶ 5, 7, and 9 of Defendants' Local Rule 56.1(a)(3) statement are deemed admitted.

When considering Myers's summary judgment motion, the facts are considered in the light moved favorable to Defendants, and when considering Defendants' summary judgment motion, the facts are considered in the light most favorable to Myers. See In re United Air Lines, Inc., 453 F.3d 463, 468 (7th Cir. 2006) ("With cross summary judgment motions, we construe all facts and inferences therefrom in favor of the party against whom the motion under consideration is made.") (internal quotation marks omitted). That said, the following facts are undisputed, either by the parties' agreement, because a party's objection to the fact fails to comply with Local Rule 56.1(b)(3), or because the fact simply reflects a historical account of what a person said or a document states.

A. The Parties and Procedural History

In 1997, Myers purchased a condominium unit in a residential development in Palos Park, Illinois, called the Condominiums of Edelweiss. Doc. 79 at ¶ 1. Myers has resided in the unit since then, and her husband resided with her until he died in August 2010. Doc. 65 at ¶ 7. Condominiums is the development's governing body. Id. at ¶ 2; Doc. 79 at ¶ 2. The individual defendants are current or former board members of Condominiums. Doc. 79 at ¶ 2.

In 1992, five years before Myers purchased her unit, Condominiums adopted and duly recorded an Amendment to the Condominium Declaration prohibiting pets, which will be called the "no-pet policy." Id. at ¶ 3. Despite the no-pet policy, Myers kept cats in her unit. Id. at ¶ 4. Defendants did not know this until April 2008, when Lopez noticed a cat in the window of Myers's unit. Id. at ¶ 5. Lopez told Myers that the cats must be removed, but Myers refused. Id. at ¶ 5. During that conversation, Myers did not mention anything about a medical condition that required her to have cats. Ibid.

On May 16, 2008, Myers received a letter from Condominiums's attorneys demanding the cats' removal and threatening an eviction suit if she refused. Doc. 65 at ¶ 11; Doc. 79 at ¶ 6. On May 28, 2008, Myers received a 30-day Notice and Demand to remove the cats from the premises. Doc. 65 at ¶ 12. Days later, Condominiums received a letter from Myers's attorney stating that Myers no longer had a cat in her unit. Doc. 79 at ¶ 7; Doc. 72-8. The letter did not mention that the cats were medically necessary support animals for Myers. Ibid.

Notwithstanding the representation in her attorney's letter, Myers has kept or maintained a cat or cats in her unit "for the entire time" she resided there. Doc. 65 at ¶ 8. On June 5, 2008, Myers placed a letter from her family physician, Dr. Susan Locke, in the mailbox used for the collection of assessments. Doc. 79 at ¶ 8. The letter states: "To Whom It May Concern: Barbara Myers is a longtime patient of mine. It is imperative that she keep pets [for] emotional support. This is medically necessary per the Americans with Disabilities Act. Thank you for your cooperation." Ibid.

In a letter written by their attorney, Gerald J. Sramek, on July 31, 2008, Defendants acknowledged receiving Dr. Locke's letter. Doc. 65 at ¶ 16. Sramek's letter recognized that Dr. Locke had opined that Myers needed her cats for "emotional support" and that Dr. Locke believed Myers was justified in keeping the cats "under the Americans with Disabilities Act." Id. at ¶ 17; Doc. 65-5. But Sramek disagreed with Dr. Locke's position and denied the request for an accommodation. Doc. 65 at ¶ 18; Doc. 65-5. The letter also threatened Myers with further legal action if the cats were not removed from her unit. Ibid.

No board member ever communicated with Myers about her medical condition or her request to keep cats in her unit. Doc. 65 at ¶ 41. Condominiums never sought or obtained any medical opinion concerning Myers prior to denying her request for an accommodation or prior to pursuing the below-referenced suit against her in state court. Id. at ¶ 42. There are no minutes from any formal or informal board meetings relating to the decision to sue Myers or to deny her request for an accommodation. Id. at ¶ 43. Myers was never given notice of any board meeting in which the directors would be discussing her request for an accommodation. Id. at ¶ 44. Condominiums's Declaration and Bylaws require that any matter involving an alleged violation of Condominiums's rules be addressed at a meeting open to all unit members. Id. at ¶ 45. The Declaration and Bylaws also require that the board reasonably accommodate the needs of a unit owner with a disability. Id. at ¶ 46.

On October 24, 2008, Condominiums filed a forcible entry and detainer action in Illinois state court seeking Myers's eviction. Doc. 65 at ¶¶ 19-20; Doc. 79 at ¶ 10; Condominiums of Edelweiss, Inc. v. Myers, No. 08 M5 1993 (Cir. Ct. Cook Cnty, Ill.). Condominiums amended the complaint on November 18, 2008, and on December 23, 2008, the state court dismissed the amended complaint. Doc. 65 at ¶¶ 21-22; Doc. 79 at ¶ 10. On January 20, 2009, Condominiums filed a second amended complaint, which sought only injunctive relief. Doc. 65 at ¶ 23; Doc. 79 at ¶ 10. Myers answered and asserted an affirmative defense under the FHA. Doc. 65 at ¶ 24. On October 6, 2009, Condominiums's attorneys deposed Myers and ...

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