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Clay v. IH4 Property Florida, L.P.

United States District Court, M.D. Florida, Fort Myers Division

September 20, 2019

GRACE CLAY and STEPHEN CLAY, individually, and on behalf of their minor son, S.C., Plaintiffs,



         This 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.


         This is 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.

         The 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.

         In 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.)

         Over 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. (Id.)

         On 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.)

         At 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 rent. (Id.)

         Ultimately, 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.)

         Plaintiffs 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.)

         Defendant 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.


         Under 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, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citations omitted).

         In 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 ...

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