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UNITED STATES v. NALLY

October 6, 1994

UNITED STATES OF AMERICA, Plaintiff,
v.
EARL H. NALLY; RUTH A. NALLY; WARREN GILLETTE; AND BENONA GILLETTE, Defendants.


PATEL


The opinion of the court was delivered by: MARILYN HALL PATEL

Plaintiff United States brought this action under the Fair Housing Act, 42 U.S.C. § 3612(o), against defendants, landlords Earl and Ruth Nally ("the Nallys"), and managers Warren and Benona Gillette ("the Gillettes"), on behalf of tenants who allege that defendant discriminated against them on the basis of familial status. Now before the court is defendants' motion for summary judgment on the basis that the Secretary of Housing and Urban Development ("the Secretary") failed to comply with statutorily mandated procedures under 42 U.S.C. §§ 3610(a) & 3610(g).

 Having considered the parties' arguments and submissions, and for the reasons set forth below, the court enters the following memorandum and order.

 BACKGROUND *fn1"

 On or about January 10 and March 15, 1991, respectively, Brian Johnsgard and Sue Corley, and Ronald Sanchez and Lamoyne Brown ("complainants") filed complaints with the United States Department of Housing and Urban Development ("HUD") alleging that defendants, the owners and managers of Nally's Recreational Vehicle Park ("Nally's RV Park"), discriminated against them on the basis of family status in violation of the Fair Housing Act.

 During February, March and April of 1991 HUD investigator Robert Zurowski investigated the complaints, including interviewing all four defendants, their attorney, and tenants of Nally's RV Park. Defendants informed Zurowski that they evicted Johnsgard and Corley for nonpayment of rent and violating park rules, and that they evicted Sanchez and Brown for violating park rules.

 Investigator Zurowski and his immediate supervisors in HUD's Region IX Office of Fair Housing and Equal Opportunity signed the Final Investigative Reports for the complaints on September 3 and 4, 1991. On August 30, 1993 HUD's Regional Counsel for Region IX issued Determinations of Reasonable Cause and Charges of Discrimination, pursuant to 42 U.S.C. § 3610(g)(2)(A), charging defendants with engaging in discriminatory housing practices. Because HUD was unable to serve defendants Warren and Benona Gillette, HUD and defense counsel stipulated to dismiss those charges without prejudice on October 13, 1993 in order to permit HUD to locate and serve the Gillettes.

 On December 13, 1993 HUD again issued Charges of Discrimination against all defendants. On or about January 10, 1994 Lamoyne Brown and the defendants elected to have the matter resolved in federal district court. The administrative action was again dismissed and this complaint was filed on February 9, 1994. Defendants now move for summary judgment on all claims.

 LEGAL STANDARD

 Under Federal Rule of Civil Procedure 56, summary judgment shall be granted "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial . . . since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). See also T.W. Elec. Serv. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987) (the nonmoving party may not rely on the pleadings but must present significant probative evidence supporting the claim); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986) (a dispute about a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.").

 The court's function, however, is not to make credibility determinations, Anderson, 477 U.S. at 249, and the inferences to be drawn from the facts must be viewed in a light most favorable to the party opposing the motion. T.W. Elec. Serv., 809 F.2d at 631.

 DISCUSSION

 Under the Fair Housing Act, an aggrieved person alleging a discriminatory housing practice may file a complaint with the Secretary of HUD. 42 U.S.C. § 3610(a). Upon receipt of the complaint, the Secretary must attempt conciliation of the complaint. Id. at § 3610(b). If unable to effectuate conciliation, the Secretary must (1) conduct an investigation into the alleged discriminatory housing practice, and (2) determine whether reasonable cause exists to believe that such practice has occurred or is about to occur. Id. at §§ 3610(a)(1)(B)(iv), 3610(g)(1). The Secretary must do so within 100 days after the filing of a complaint "unless it is impracticable." Id. at §§ 3610(a)(1)(C), 3610(g)(1). If the Secretary is unable to complete this investigation and determination within the 100 days, "the Secretary shall notify the complainant and respondent in writing of the reasons for not doing so." Id. Following each investigation the Secretary must file a "final investigative report." Id. at § 3610(b)(5)(A).

 Defendants claim that the Secretary failed to complete its investigation into this matter within the required 100 days and failed to issue a notice to defendants explaining the delay. Defendants argue that failure to comply with these requirements warrants summary judgment in their favor because the language of the statute is ...


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