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April 1, 1997

ANNA AMBRUSTER, individually, and on behalf of the GENERAL PUBLIC, Plaintiff,
MONUMENT 3: REALTY FUND VIII LTD., et al., Defendants.

The opinion of the court was delivered by: WILLIAMS

 Plaintiff Anna Ambruster died shortly after filing the Complaint in this action. In this motion, two of Ms. Ambruster's children seek this Court's permission under Fed. R. Civ. P. 15 and Fed. R. Civ. P. 25(a) to amend the Complaint to substitute themselves as plaintiffs in place of their mother. The parties do not dispute that Ambruster's successors should be allowed to amend the Complaint and substitute themselves as plaintiffs. However, the Defendants raise one significant question concerning the propriety of the substitution: when a plaintiff making a discrimination claim under the federal Fair Housing Act dies, and is succeeded in the suit by his or her successors, does the original plaintiff's claim for emotional distress damages survive? The question presented is one of law, and one of first impression in this Circuit.


 Plaintiff alleges the following facts. Anna Ambruster ("Mrs. Ambruster") was a tenant at Heritage Park Apartments, a 508-unit apartment complex in Sunnyvale, Calif. Pat Forward and Christopher Ambruster are two of Mrs. Ambruster's children (together, the "Ambruster children"). Monument 3: Realty Fund VIII Ltd., a California Limited Partnership, owns and operates Heritage Park Apartments ("Heritage").

 Mrs. Ambruster was an elderly woman who suffered from asthma and a heart condition. Mrs. Ambruster's sole sources of income were Social Security and Supplemental Security Income. She also received a rental subsidy through the Section 8 Certificate Program under which she paid a portion of her rent directly to Heritage, and the remainder of her rent was paid by the Housing Authority of Santa Clara County.

 In June of 1996, she learned she would have to undergo open heart surgery to replace one of the valves in her heart. She was also hospitalized for pneumonia and bronchitis. Mrs. Ambruster contacted the on-site manager of Heritage to request a transfer to a two-bedroom apartment, so that she could accommodate a live-in assistant in light of her increased incapacity. It is alleged that Mrs. Ambruster needed a live-in attendant to administer medications, prepare meals, run errands, and transport her to doctors' appointments, among other things. Mrs. Ambruster's doctors certified that she required a live-in attendant on a long-term basis. Heritage's manager told Mrs. Ambruster that the wait list for a two-bedroom apartment would be five years.

 One week later, Mrs. Ambruster wrote a letter to the manager of Heritage again requesting that she be allowed to transfer to a larger apartment to accommodate a live-in attendant. Heritage never responded to this letter.

 On August 20, 1996, Heritage served Mrs. Ambruster with a 30-day notice terminating her tenancy. Mrs. Ambruster's legal representatives requested that Heritage rescind the notice, because Mrs. Ambruster was scheduled to undergo open heart surgery on August 26, 1996, and would require up to a year to fully recuperate.

 On August 26, 1996, Mrs. Ambruster filed this lawsuit. The Complaint alleges the Defendants violated the federal Fair Housing Act ("FHA"), 42 U.S.C. §§ 3604(f)(1), 3604(f)(2), 3604(f)(3)(B), 3617; the California Fair Employment and Housing Act, Cal. Gov. Code §§ 12955(a), (d), (f), (g); the California Unruh Civil Rights Act, Cal. Civ. Code § 51 et seq.; and California Civil Code § 54.1. The Complaint also contains allegations of negligence and unfair business practices. It seeks the following relief: an injunction; declaratory relief; compensatory, statutory, and punitive damages; treble damages under the Unruh Act and Civ. Code § 54 et seq.; treble damages under Civ. Code § 3345; reasonable attorneys' fees and costs. Presumably, the compensatory damages described include damages for the emotional distress alleged in the Complaint.

 On August 27, 1996, Defendants rescinded the 30-day notice terminating Mrs. Ambruster's tenancy. On September 4, 1996, while undergoing open heart surgery, Mrs. Ambruster died.


 Defendants have not yet filed a responsive pleading. Therefore, the Court will permit amendment of the Complaint as a matter of right. Fed. R. Civ. P. 15(a). This does not, however, dispose of the question of substitution of parties under Fed. R. Civ. P. 25(a)(1). The Court may, in its discretion, order substitution of the proper parties if the claim is not extinguished by the original party's death. Fed. R. Civ. P. 25(a)(1); McKenna v. Pacific Rail Service, 32 F.3d 820, 836 (3d Cir. 1994). As discussed above, the critical question facing the Court at this juncture is whether substitution of the Ambruster children for the deceased Plaintiff extinguishes the claim for emotional distress damages under the federal Fair Housing Act.

 The Fair Housing Act and its amendments contain no specific provision explaining whether an individual's right to bring a civil claim is inherited by that person's heirs. To construe civil rights, including the FHA, the Court turns to 42 U.S.C. § 1988. See Glanz v. Vernick, 750 F. Supp. 39, 42 (D. Mass. 1990). The default rule of § 1988 provides that state law governs issues upon which the federal statute is silent. "When federal law is thus 'deficient,' § 1988 instructs us to turn to the common law, as modified and changed by the constitution and statutes of the [forum] State," as long as not inconsistent with the federal constitution and laws of the United States. Robertson v. Wegmann, 436 U.S. 584, 588, 56 L. Ed. 2d 554, 98 S. Ct. ...

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