Argued: May 19, 2016
FROM THE DISTRICT COURT OF THE VIRGIN ISLANDS (D.C. Nos.
3-12-cv-00024 & 3-12-cv-00025) District Judge: Honorable
Curtis V. Gomez
A. Bentz, Esq. [ARGUED] Gregory A. Thorp, Esq. Counsel for
Todd Boyd, Esq. James K. Parker, Jr., Esq. [ARGUED] Yvette R.
Lavelle, Esq. Boyd, Richards, Parker & Colonnelli, P.L.
Joseph G. Riopelle, Esq. Carl R. Williams, Esq. Counsel for
Appellees Cowpet Bay West Condominium Association, Inc.,
Board of the Cowpet Bay West Condominium Association, Robert
Cockayne and Vincent Verdiramo; former counsel for Appellee
Max Harcourt, deceased
H. Benham, III, Esq, Boyd L. Sprehn, Esq. Counsel for
Appellee Lance Talkington
R. Waldner, Esq. [ARGUED] Ryan C. Meade, Esq. Former counsel
for Appellee Alfred Felice, deceased
Gupta, Esq. Mark L. Gross, Esq. April J. Anderson, Esq.
[ARGUED] Counsel for Amicus Appellant United States of
Before: FUENTES, [*] VANASKIE and RESTREPO, Circuit
RESTREPO, Circuit Judge
Barbara Walters and Judith Kromenhoek filed these civil
rights actions under the Fair Housing Act. Walters and
Kromenhoek sought accommodations for their disabilities in
the form of emotional support animals, which were not
permitted under the rules of their condominium association.
They allege violations of their right to a reasonable
accommodation of their disabilities, 42 U.S.C. §
3604(f)(3)(B), and interference with the exercise of their
fair housing rights, 42 U.S.C. § 3617. They also allege
supplemental territorial claims.
other issues, these cases raise the question whether a Fair
Housing Act claim survives the death of a party. We hold that
the District Court improperly answered this question by
applying a limited gap-filler statute, 42 U.S.C. §
1988(a), and, in turn, territorial law. We conclude that the
survival of claims under the Fair Housing Act is not governed
by Section 1988(a), but rather by federal common law, under
which a Fair Housing Act claim survives the death of a party.
Accordingly, we will reverse the District Court's grant
of summary judgment against Walters' executrix.
merits of the summary judgment motions, we will reverse in
part and vacate in part. We will remand to the District Court
with instructions to consider whether to permit substitution
for two deceased Appellees.
Walters and Kromenhoek suffered from disabilities, for which
each was prescribed an emotional support animal. Each woman
obtained a dog. This violated the "no dogs" rule of
their condominium association, Cowpet Bay West. Cowpet's
"no dogs" rule provided that "Dogs and farm
animals are prohibited, and owners will be fined as specified
by the Board of Directors." App. 104. The rule had no
exceptions and Cowpet had no policy regarding assistive
animals, such as emotional support animals. The "no
dogs" rule was enforced by the Cowpet Board of
Directors, which has the authority to enforce the Cowpet
"Rules and Regulations with monetary fines and other
sanctions . . . ." App. 100.
and Kromenhoek each attempted to request an accommodation for
an emotional support animal by filing paperwork with
Cowpet's office manager, Louanne Schechter. The paperwork
included a doctor's letter prescribing an emotional
support animal, and a dog certification. Each certification
stated that the dog was "prescribed and deemed necessary
to assist . . . the confirmed disabled handler" and that
"property managers and landlords are required to make
reasonable accommodation" under the Fair Housing Act.
App. 1304, 2231. Walters submitted her paperwork in February
2011 and Kromenhoek in July 2011. Cowpet took no action at
presence of dogs at Cowpet drew the ire of some residents.
One resident, Appellee Lance Talkington, fanned the flames by
writing about dogs at Cowpet on his blog about the community.
In October 2011, Talkington wrote on his blog that
"Barbara [Walters] has a dog and claims to have
'papers' that allow her to have it." App. 1904.
He also wrote that he had asked the office manager
"whether the office has Barbara [Walters']
paperwork in their files and whether monetary fines have been
assessed if not, " but had not received an answer.
response to this blog post, Appellee Alfred Felice posted the
first of many inflammatory comments on Talkington's
blog. Felice wrote that dog owners might be
"happier in another community rather than ostracized at
[Cowpet], which would be another fine recourse, besides a
significant $$ fine, with progressive amounts." App.
having been named by Talkington, responded on the blog. She
wrote that "[s]ince you so tactfully used my name in
this blog, I am required to defend myself, not as a
'violator' of any laws, but a person with a
disability . . . ." App. 1906. Walters also wrote that
she was "mortified, that my personal business has been
laid out over the internet without my permission or
forewarning." App. 1912. Felice replied that someone who
needed an emotional support dog "might go off his/her
gourd without the pet at his/her side" in a
"violent reaction. We don't even know we need
protection! Bad Law!" App. 1906-07. Talkington also
commented that Walters "has a pet and should be
fined." App. 1910.
followed a flurry of emails among the Cowpet Board, Walters
and Kromenhoek. On October 27, 2011, Walters emailed the
members of the Board that "[m]y paperwork is on file in
the office, but my medical information is no ones [sic]
business and since this board has a history of violating
confidentiality, how the hell can I trust any one of you to
keep their mouth shut. Am I going to find my information on
Lance [Talkington's] blog again?" App. 492.
October 28, 2011, the Board president, Appellee Max Harcourt,
notified Walters and Kromenhoek by email that they were in
violation of the "no dogs" rule. Harcourt wrote
that the office manager "tells me that both you have
'papers in the office' regarding service dogs;
however you have not applied for an exception to the
rule." App. 495. Harcourt gave Walters and Kromenhoek
ten days to submit a request to the Board or be fined.
Harcourt copied his email to Talkington, who posted it on his
same day, Walters emailed the Board that "I am in
possession of a service dog, and under the disabilities act
set forth in the Fair Housing Amendment . . . I qualify to
keep [a] service animal even when policy explicitly prohibits
pets. . . . If any medical information is disclosed to
Anderson, Talkington or any one [sic] else, that will be
taken as violation of privacy, and will be dealt with
accordingly." App. 581.
also emailed Harcourt, although the copy of the email in the
record is undated. Like Walters, Kromenhoek wrote that she
had "filed the necessary paperwork in the office and
according to the Disabilities Act set forth in the Fair
Housing Amendment . . . I qualify to keep a service animal
even when policy explicitly prohibits pets." App. 583.
She further wrote that she trusted the office manager with
her medical information, but not the Board "as you have
proved time and again that you cannot be trusted. . . . This
is not a request for you to consider but this is informing
you that I have a service dog and I am not in any
violation." Id. Kromenhoek wrote that she would
"disclose my history and paperwork [to Harcourt]
provided you sign a confidentiality agreement with a monetary
penalty for disclosure . . . ." App. 584. Kromenhoek
avers that she personally spoke to Harcourt and "invited
him" to review her paperwork and to sign a
confidentiality agreement, which he refused to sign. App.
the parties dispute how the Board responded. According to
Walters and Kromenhoek, Harcourt did review their paperwork
in the Cowpet office. They point to the affidavit of the
office manager, Schechter, who avers that Harcourt "came
to the office and reviewed the documents . . . ." App.
263, 349. Schechter further avers that Harcourt "also
sent his 'representative' Bill Canefield, another
Board member to review the documents." App. 263-64,
deny that the Board reviewed the paperwork on file in the
Cowpet office. They rely on the affidavit of Board treasurer,
Sharon Koehler, who avers that the Board "neither
reviewed nor discussed the content of [Walters and
Kromenhoek]'s medical verification and accommodation
request, until March 2012, when Plaintiff submitted same to
then president, Ed Wardwell." App. 526, 612. There is no
testimony from Harcourt, who died while the case was pending
in the District Court.
Board did not grant an accommodation to Walters or Kromenhoek
in the fall of 2011. To the contrary, at a January 2012 Board
meeting, Appellee Vincent Verdiramo moved to impose fines on
dog owners. The Board voted to fine Walters and Kromenhoek
for violating the "no dogs" rule. The fine was
fifty dollars per day. These fines were held in abeyance,
pending legal advice.
Talkington's blog, Felice and Talkington continued to
denigrate dog owners at Cowpet. For example, in November
2011, Felice wrote "If you can't remove the guilty,
you can certainly ostracize them." App. 1920. In
December 2011, Talkington wrote a blog post naming and
labeling Walters and Kromenhoek as "known
violators" and their emotional support animals as
"illegal neighborhood puppy dogs." App. 1924.
Talkington also reported that a neighbor heard one dog
barking and added, sarcastically, that "trained service
dogs are specifically trained to not bark unless the owner is
in imminent danger. Maybe one of the pups pooped in the
owner's unit and was warning the owner to watch
out?" App. 1924.
subsequently wrote a blog post stating that Walters and
Kromenhoek have "certified" emotional support dogs,
but that such certifications are issued without
"verify[ing] either the animal's credentials or the
purported disability." App. 1930. Talkington later
posted that "[t]hese r[i]diculous puppy dog diplomas
from the paper mills are out of line." App. 1934.
Talkington wrote that the "diploma mill" would
accept "stress" as "a disability that
qualifies for their certification" without any doctor
confirmation. App. 1935. Felice echoed this sentiment in
belligerent terms. He wrote: "PAY a few $'s on the
internet and 'PRESTO' a service dog is born . . . I
could 'certify' my ceramic toy with THAT
process." App. 1935.
that winter, Talkington wrote on his blog that Cowpet should
"go on the offensive and lawyer up to pursue an action
against owners who are noncompliant with the policy on
service dogs. . . . This is the type of action where each
party will bear their own legal costs regardless of the
outcome, so each party will have to decide how badly they
want to pursue it." App. 1938. Felice then posted a
comment, describing Walters and Kromenhoek as
"miscreants." App. 1939. Felice wrote that
"failure to comply [with the no dogs rule] must lead to
liens and even foreclosure, if needed, for compliance to be
effective. These ungracious owners are totally selfish,
spoiled, brats, willing to flaunt their illegality in every
one[']s face . . . . Such gall and nerve require full
responce [sic], with ostracizing the offenders in every
manner at our disposal! Isolate them completely to their
little 'dog patch' on the beach and ignore them at
every venue or occasion!" Id. Talkington
followed up by writing that Walters and Kromenhoek are
"playground bullie[s]" attempting to "hang
onto their puppies." App. 1940. He wrote that "it
is time for the association to go on the offensive and file
suit in a court of law to force the issue. When these ladies
have to start spending their own cash . . . the rubber will
meet the road on how far everyone is willing to go on this
issue." App. 1940-41.
ferment finally came to a close after Harcourt completed his
term as President of the Cowpet Board and was succeeded by a
new President, Ed Wardwell. In March 2012, Walters and
Kromenhoek submitted to Wardwell formal requests for
accommodation. In April 2012, the Board granted the requests
and waived the accrued fines.
and Kromenhoek, nevertheless, filed these civil rights cases
under the Fair Housing Act. They raised two federal claims:
(1) that Cowpet denied their reasonable requests for
accommodation in violation of 42 U.S.C. § 3604(f)(3)(B)
and (2) that Cowpet and three individual Appellees
(Talkington, Felice and Harcourt) interfered with the
exercise of their fair housing rights in violation of 42
U.S.C. § 3617. Walters and Kromenhoek also asserted
supplemental territorial law claims against all
Walters committed suicide while her case was pending in the
District Court. Appellees moved for summary judgment. The
District Court dismissed Walters' Fair Housing Act claims
entirely due to her death. As to Kromenhoek, the District
Court denied her Fair Housing Act claims on the merits. The
District Court declined to exercise supplemental jurisdiction
over the territorial claims in both cases because no federal
claims remained. See 28 U.S.C. § 1367(c)(3).
and Kromenhoek now appeal the District Court's dismissal
of their claims at summary judgment. In addition, Walters and
Kromenhoek have filed motions to substitute representatives
for Appellees Felice and Harcourt, who died while these cases
were pending in the District Court.
District Court had jurisdiction pursuant to 28 U.S.C. §
1331 and 48 U.S.C. § 1612(a). We have jurisdiction under
28 U.S.C. § 1291.
existence and scope of our jurisdiction are disputed issues
because, some Appellees contend, Walters and Kromenhoek filed
their notices of appeal prematurely. However, to the extent
that the initial judgment Walters and Kromenhoek appealed was
non-final, it was later replaced with revised judgments on
both dockets that ended the litigation on the merits for all
parties. See Morton Int'l, Inc. v. A.E. Staley Mfg.
Co., 460 F.3d 470, 476 (3d Cir. 2006) (explaining that a
decision is "final" under § 1291 when all
claims against all parties have been resolved). Within thirty
days of the entry of the revised judgments, and at the
request of the Clerk of our Court, Walters and Kromenhoek
filed jurisdictional statements identifying these final
judgments as the decisions to be challenged on appeal.
simplest route to finding jurisdiction and defining its scope
is thus through Smith v. Barry, 502 U.S. 244 (1992),
under which we may consider a document to be the equivalent
of a notice of appeal so long as it meets the requirements of
Federal Rule of Appellate Procedure 3(c) and is filed within
the time limits of Federal Rule of Appellate Procedure 4(a).
See id. at 248-49; In re FMC Corp. Packaging
Sys. Div., 208 F.3d 445, 451 (3d Cir. 2000) (treating
petition for mandamus that satisfied Rule 3 as notice of
appeal "provided that it was filed, as it was, within
the 30-day limit set by Fed. R. App. P. 4(a)(1)");
see also Benn v. First Judicial Dist. of Pa., 426
F.3d 233, 237 (3d Cir. 2005) (emphasizing liberal
construction of Rule 3); Intel Corp. v. Terabyte
Int'l, Inc., 6 F.3d 614, 618 (9th Cir. 1993)
(treating opening brief as amended notice of appeal that
extended appellate jurisdiction over post-judgment
attorney's fees order). The jurisdictional responses were
both timely under Rule 4 and appropriately fashioned under
Rule 3. We thus have jurisdiction over the appeal extending
to all of the Appellees.
exercise plenary review over the question whether a Fair
Housing Act claim survives the death of a party, as this is
an issue of law. We also exercise plenary review over a grant
of a motion for summary judgment. Goldenstein v.
Repossessors Inc., 815 F.3d 142, 146 (3d Cir. 2016). We
draw all reasonable inferences in favor of the nonmoving
party. Id. at 146. We will affirm if "there is
no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law." Fed.R.Civ.P.
Fair Housing Act was enacted in 1968 "to eradicate
discriminatory practices within a sector of our Nation's
economy." Texas Dep't of Hous. & Cmty.
Affairs v. Inclusive Communities Project, Inc., 135
S.Ct. 2507, 2521 (2015). The stated policy is "to
provide, within constitutional limitations, for fair housing
throughout the United States." 42 U.S.C. § 3601. In
1988, Congress extended the Fair Housing Act to protect
against discrimination on the basis of disability. City
of Edmonds v. Oxford House, Inc., 514 U.S. 725, 728 n.1
(1995); Fair Housing Amendments Act of 1988, Pub. L. No.
100-430, 102 Stat. 1619 (1988). This was "a clear
pronouncement of a national commitment to end the unnecessary
exclusion of persons with handicaps from the American
mainstream." Hovsons, Inc. v. Twp. of Brick, 89
F.3d 1096, 1105 (3d Cir. 1996) (emphasis and citations
omitted). The Supreme Court has held that when construing the
Fair Housing Act, "we are to give a 'generous
construction' to the statute's 'broad and
inclusive' language." Lakeside Resort Enters.,
LP v. Bd. of Supervisors of Palmyra Twp., 455 F.3d 154,
156 (3d Cir. 2006) (quoting Trafficante v. Metro. Life
Ins. Co., 409 U.S. 205, 209 (1972)).
cases require us to address an issue of first
impression-whether claims under the Fair Housing Act survive
the death of a party. The Fair Housing Act is silent as to
survival. In the face of this interstice, the District Court
answered the survival question by applying a limited
gap-filler statute, 42 U.S.C. § 1988(a), which in turn
led the District Court to apply territorial law. The District
Court applied a Virgin Islands statute, ...