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Revock v. Cowpet Bay West Condominium Association

United States Court of Appeals, Third Circuit

March 31, 2017

LIANA REVOCK, Executrix of the Estate of Barbara Walters

          Argued: May 19, 2016

         APPEAL 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

          Karin A. Bentz, Esq. [ARGUED] Gregory A. Thorp, Esq. Counsel for Appellants

          W. 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

          John H. Benham, III, Esq, Boyd L. Sprehn, Esq. Counsel for Appellee Lance Talkington

          Kyle R. Waldner, Esq. [ARGUED] Ryan C. Meade, Esq. Former counsel for Appellee Alfred Felice, deceased

          Vanita Gupta, Esq. Mark L. Gross, Esq. April J. Anderson, Esq. [ARGUED] Counsel for Amicus Appellant United States of America

          Before: FUENTES, [*] VANASKIE and RESTREPO, Circuit Judges


          RESTREPO, Circuit Judge

         Appellants 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.

         Among 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.

         On the 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.

         I [1]

         Appellants 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.[2] 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.

         Walters 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 the time.

         The 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. Id.

         In response to this blog post, Appellee Alfred Felice posted the first of many inflammatory comments on Talkington's blog.[3] 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. 1905.

         Walters, 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.

         There 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.

         On 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 blog.

         The 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.

         Kromenhoek 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. 110.

         Significantly, 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, 349-50.

         Appellees 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.

         The 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.[4]

         On 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.

         Talkington 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.

         Later 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.

         The 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.

         Walters 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 Appellees.[5]

         Tragically, Walters committed suicide while her case was pending in the District Court.[6] 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).

         Walters 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.[7]


         The 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.

         The 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.

         The 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.[8]


         We 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. 56(a).


         The 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)).

         These cases require us to address an issue of first impression-whether claims under the Fair Housing Act survive the death of a party.[9] 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. ยง 1988(a), which in turn led the District Court to apply territorial law. The District Court applied a Virgin Islands statute, ...

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