United States District Court, M.D. Florida, Fort Myers Division
GRACE CLAY and STEPHEN CLAY, individually, and on behalf of their minor son, S.C., Plaintiffs,
IH4 PROPERTY FLORIDA, L.P. and INVITATION HOMES REALTY, LLC, Defendants.
OPINION AND ORDER
E. STEELE, SENIOR UNITED STATES DISTRICT JUDGE
matter comes before the Court on defendants’ Motion to
Dismiss Counts I and II of plaintiffs’ Amended
Complaint (Doc. #13) filed on July 26, 2019. Plaintiffs filed
a Response in Opposition (Doc. #16) on August 9, 2019. For
the reasons set forth below, the Motion is granted in part
and denied in part.
a landlord tenant dispute stemming from water damage and mold
growth caused by Hurricane Irma that resulted in exacerbation
of S.C.’s asthma. Plaintiffs are currently proceeding
on a five-count Amended Complaint (Doc. #11), but only the
fair housing claims (the federal Act and its Florida
counterpart) are at issue here.
Amended Complaint alleges the following: In August 2016,
plaintiffs entered into a lease with IH4 Property Florida,
L.P. for a single-family residence in Cape Coral, Florida.
(Doc. #11, ¶ 19.) Invitation Homes Realty, LLC operated
as IH4’s property manager for the home. (Id.)
In 2017, plaintiffs Grace and Stephen Clay, entered a new
lease with IH4 for a one-year period, beginning on August 1,
2017. (Id., ¶ 20.) Grace and Stephen are the
parents of a minor child, S.C., who lives with his parents at
the Cape Coral home. (Id., ¶¶ 4-5.) S.C.
suffers from asthma.
September 2017, Hurricane Irma impacted the home, resulting
in damage to the roof and an intrusion of water and moisture
into the home. (Doc. #11, ¶ 21.) In the aftermath of
Hurricane Irma, using a work order process established by
defendants, plaintiffs requested that defendants repair
and/or remedy damage to the home. Specifically, the work
order identified damage to the roof, water in the interior of
the home, and mold. (Id., ¶ 22.) The initial
work order was pending for over two months without any
response by defendants, notwithstanding the fact that
defendants’ representatives inspected the home in
September 2017 – shortly after the work order was
submitted. (Id., ¶ 23.)
the next few months, the mold growth continued and was
exacerbated by subsequent storm events. (Doc. #11, ¶
24.) During this time, plaintiffs were told by defendants
that they were awaiting “approval” for the
required repairs and remediation. (Id.) However, no
such repairs or remediation were attempted or completed.
December 29, 2017, as a result of the toxic mold present at
the home, S.C. fell ill, suffering from “PICU Acute
Severe Asthma Exacerbation.” (Doc. #11, ¶ 25.)
S.C. was admitted to the hospital and remained there for
three days. (Id.) Shortly thereafter, Grace reached
out to defendants’ representatives and disclosed
S.C.’s severe asthma and demanded that they take
immediate action to remedy the unsafe conditions at the home
or provide alternative housing. (Id., ¶ 26.)
Defendants took no action. (Id.)
various times over the next 6-8 months, S.C. and Grace were
required to live elsewhere when the mold growth would cause
flare ups to S.C.’s asthma. (Doc. #11, ¶ 27.)
Despite multiple inspections by defendants, and multiple
requests by the Clay family to address the conditions at the
home, no action was taken. During this time, notwithstanding
the fact that plaintiffs were unable to peacefully enjoy
their home, plaintiffs continued in good faith to pay their
in December 2018 – more than 14 months after Hurricane
Irma – with no other options available to them,
plaintiffs were forced to notify defendants that they were
withholding rent until such time as leaks in the roof and
other areas of the home were fixed and the mold remediated.
(Doc. #11, ¶ 28.) In January 2019, defendants tried to
make a modest repair of the roof, but it was ineffective and
did not pass final inspection by the Lee County Building
Department. (Id., ¶ 29.) Around this same time,
defendants attempted to remediate the moisture and/or mold in
the home by using unqualified personnel but failed to conduct
the remediation in accordance with industry standards.
(Id., ¶ 30.) After the attempted remediation an
analysis showed the presence of Stachybotrys, a type of toxic
mold inside the home. (Id., ¶ 31.) Ultimately,
because of the defendants’ inaction, the Clay family
was forced to vacate the home to avoid further injury.
(Id., ¶ 32.)
allege that defendants have unfairly discriminated against
them in the rental of the home by failing to make reasonable
accommodations for S.C.’s disability, specifically, his
severe asthma, where such accommodations are necessary to
afford him full enjoyment of the property. Plaintiffs alleged
damages include personal injuries, property damage, loss of
income, emotional distress, and pain and suffering. (Doc.
#11, ¶ 34.)
move to dismiss plaintiff’s Federal Fair Housing Act
(FHA) (Count I) and Florida Housing Rights Act (FFHA) (Count
II) claims pursuant to Fed.R.Civ.P. 12(b)(6) for failure to
state a claim upon which relief may be granted. Defendants
also move to dismiss the FFHA claim, Fla. Stat. §
760.23(9)(b), for failure to exhaust administrative remedies.
Federal Rule of Civil Procedure 8(a)(2), a Complaint must
contain a “short and plain statement of the claim
showing that the pleader is entitled to relief.”
Fed.R.Civ.P. 8(a)(2). This obligation “requires more
than labels and conclusions, and a formulaic recitation of
the elements of a cause of action will not do.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(citation omitted). To survive dismissal, the factual
allegations must be “plausible” and “must
be enough to raise a right to relief above the speculative
level.” Id. at 555. See also Edwards v.
Prime Inc., 602 F.3d 1276, 1291 (11th Cir. 2010). This
requires “more than an unadorned,
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
deciding a Rule 12(b)(6) motion to dismiss, the Court must
accept all factual allegations in a complaint as true and
take them in the light most favorable to plaintiff,
Erickson v. Pardus, 551 U.S. 89 (2007), but
“[l]egal conclusions without adequate factual support
are entitled to no assumption of truth.” Mamani v.
Berzain, 654 F.3d 1148, 1153 (11th Cir. 2011) (citations
omitted). “Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do
not suffice.” Iqbal, 556 U.S. at 678.
“Factual allegations that are merely consistent with a
defendant’s liability fall short of being facially
plausible.” Chaparro v. Carnival Corp., 693
F.3d 1333, 1337 (11th Cir. 2012) (internal citations
omitted). Thus, the Court engages in a two-step ...