Delaware Human and Civil Rights Commission v. Greenbrier Condos, L.L.C.

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

DELAWARE HUMAN AND CIVIL )
RIGHTS COMMISSION )
)
Plaintiff ex. rel., )
)
GABRIELLE MILLAR, )
)
Relator, ) C.A. No. N24C-02-153 EMD
)
v. )
)
GREENBRIER CONDOS, L.L.C. and )
DELAWARE PROPERTY )
MANAGEMENT, L.L.C., )
)
Defendants. )

Submitted: May 14, 2024
Decided: August 6, 2024

Upon Consideration of
Defendants’ Motion to Dismiss Plaintiff’s Complaint
DENIED in part and RESERVED in part pending oral argument.

Kemba S. Lydia-Moore, Esquire, DAG, Delaware Department of Justice, Wilmington,
Delaware. Attorney for Plaintiff Delaware Human and Civil Rights Commission.

Donald L. Gouge, Jr., Esquire, Donald J. Gouge, Jr., LLC, Wilmington, Delaware. Attorney for
Defendants Greenbrier Condos, L.L.C. and Delaware Property Management Company, L.L.C.

DAVIS, J.

I. INTRODUCTION

This is a civil discrimination action under the Delaware Fair Housing Act (“DFHA”).1

Plaintiff Delaware Human and Civil Rights Commission (the “Commission”) filed a complaint

(as subsequently amended, the “Amended Complaint”),2 alleging that Defendants Greenbrier

1
6 Del. C. §§ 4600 et seq.
2
D.I. No. 5 (hereinafter “Am. Compl.”).
Condos, L.L.C. (“Greenbrier Condos”) and Delaware Property Management, L.L.C. (“DPM”

and with Greenbrier Condos, “Defendants”) discriminated against Relator Gabrielle Millar. The

Commission contends that Greenbrier Condos and DPM made housing unavailable to Ms. Millar

due to Ms. Millar’s disability.

The Amended Complaint contains three claims under the DFHA. The Commission

alleges that Defendants violated Section 4603(b)(1) (“Count I”) and Section 4603(b)(2) (“Count

II”) of the DFHA by refusing to rent to Ms. Millar.3 In addition, the Commission maintains that

Defendants failed to accommodate relator Ms. Millar’s request for reasonable accommodations

in violation of Section 4603A(a)(2) (“Count III”) of the DFHA.4

On April 15, 2024, Defendants moved to dismiss (the “Motion”) the Amended Complaint

(the “Motion”).5 Defendants argue that (i) the Amended Complaint should be dismissed because

the Attorney General failed to pursue this civil action within the deadline proscribed by the

applicable statute; and (ii) Counts I and III should be dismissed as the Commission has not been

charged by the Division of Human and Civil Rights (the “Division”) to pursue those claims

under DFHA.6

For the reasons stated below, the Court DENIES the Motion as it relates to timeliness of

the filing of this civil action. In addition, the Court RESERVES decision on whether Counts I

and III should be dismissed as exceeding the scope of the Commission’s charge. The parties

should contact Chambers to schedule oral argument on this remaining issue.

3
Am. Compl. ¶¶ 51-55.
4
Id. ¶¶ 56-59/
5
Defs. Mot. to Dismiss (hereinafter “Mot.”) (D.I. No. 11).
6
See generally id.
2
II. RELEVANT FACTS

A. THE PARTIES

1. Plaintiffs

The Commission is an agency of the State of Delaware. Delaware law charges the

Commission with administering the DFHA.7

Ms. Millar is a Delaware resident who “did not have a permanent residence and fluctuated

between living at her friend’s and mother’s homes.”8 Ms. Millar is a disabled person.9 Ms.

Millar has an emotional support animal (“ESA”) and preferred to lease a first-floor apartment

because she has difficulty walking. 10

2. Defendants

Greenbrier Condos is a Delaware corporation.11 Greenbrier condos owns Greenbrier

Village Apartments (“Greenbrier Village”), which is a residential community consisting of

apartments available for lease.12 Greenbrier Village is located at 101 Brier Avenue, Wilmington,

DE 19801.13

DPM is a Delaware corporation.14 DPM is a property management company located in

Newark, Delaware.15 During all relevant times, DPM was the property management company

for Greenbrier Village.16

7
Am. Compl. ¶ 1.
8
Id. ¶ 9.
9
Id. ¶ 35.
10
Id. ¶ 10.
11
Id. ¶ 3.
12
Id. ¶ 4.
13
Id.
14
Id. ¶ 5.
15
Id. ¶ 6.
16
Id. ¶ 7.
3
B. RELEVANT FACTS

The facts concerning Ms. Millar’s attempts to rent an apartment at Greenbrier Village17

are not relevant to the legal issues raised in the Motion. The Amended Complaint lays out facts

that, if taken as true, could constitute valid claims against the Defendants.18

On May 12, 2023, the Division issued written findings that reasonable cause existed to

conclude that Defendants violated Section 4603(b)(3) and Section 4603(b)(2) of the DFHA.19

The Division also found that Defendants violated federal law, specifically 42 U.S.C. § 3604(c)

and 42 U.S.C. § 3604(b).20 The director of the Division (the “Director”) concluded that no

reasonable cause existed as to three other violations.21

On May 23, 2023, the Director informed Defendants that the Division had issued a

charge, under DFHA 4610(f), that Defendants had violated the federal Fair Housing Act and the

DFHA.22 The Division appraised the parties of their right to have the claims asserted in the

Charge decided in this Court or through an administrative hearing.23 On June 1, 2023, the

Director issued a charge against Defendants alleging two violations of the DFHA—Section

4603(b)(3) and Section 4603(b)(2).24

On July 6, 2023, the Director sent a letter to the Delaware Department of Justice (the

“DOJ”).25 The Director informed DOJ that the “parties have elected to have this case

‘heard/decided through a Civil Action’ pursuant to 6 Del. C. § 4610(g).”26 The Director

17
Id. ¶¶ 10-49.
18
Id. ¶¶ 41-50.
19
Written Findings (D.I. No. 11, Ex. A).
20
Id.
21
Id.
22
D.I. No. 11, Ex. B.
23
Id.
24
D.I. No. 11, Ex. C.
25
D.I. No. 11, Ex. D.
26
Id.
4
authorized referral of the matter to the DOJ.27

The Commission, through the DOJ, initiated this civil action on February 14, 2024.28

III. STANDARD OF REVIEW

Upon a motion to dismiss, the Court (1) accepts all well-pled factual allegations as true,

(2) accepts even vague allegations as well-pled if they give the opposing party notice of the

claim, (3) draws all reasonable inferences in favor of the non-moving party, and (4) only

dismisses a case where the plaintiff would not be entitled to recover under any reasonably

conceivable set of circumstances.29 However, the court must “ignore conclusory allegations that

lack specific supporting factual allegations.”30

IV. DISCUSSION

A. DFHA 4612(N) DOES NOT BAR THE AMENDED COMPLAINT’S CLAIMS.

Defendants argue that the Amended Complaint should be dismissed because the

Commission did not pursue this civil action within the timeframe set out in Section 4612(n).31

Defendant contends that the Commission had thirty days from July 6, 2023 to file suit.32 The

Commission counters, arguing that Section 4612(n) does not impose a thirty-day timeline for

commencing suit.33

Section 4612(n) provides in part:

Civil Action for enforcement when election is made for such civil action.—

(1) if an election is made under subsection (a) of this section, the commission
shall authorize a civil action on behalf of the aggrieved person or persons in

27
Id.
28
Complaint (D.I. No. 1).
29
See Central Mortg. Co. v. Morgan Stanley Mortg. Capital Holdings LLC, 227 A.3d 531, 536 (Del. 2011); Doe v.
Cedars Academy, 2010 WL 5825353, at *3 (Del. Super. Oct. 27, 2010).
30
Ramunno v. Crawley, 705 A.2d 1029, 1034 (Del. 1998).
31
Mot. at 9.
32
Id. at 11-12.
33
Pls. Resp. to Defs. Mot. to Dismiss ¶ 8 (hereinafter “Resp.”) (D.I. No. 14).
5
the county in which the discriminatory practice alleged to have occurred. The
commission shall immediately refer the matter to the attorney general for
appropriate action.

(2) Not later than 30 days after the Commission’s referral, the Attorney General
in the absence of any conflict of duty shall pursue a civil action on behalf of
the Commission in the name of the aggrieved person or persons.

(3) If the Attorney General does not commence a civil action, the Commission
shall employ a special counsel to pursue such action in accordance with
§2507 of title 29. Whenever a civil action under this subsection will be
pursued by a special counsel, such action shall be commenced promptly
after the commission employs such counsel.34

The Court finds that Defendants’ interpretation of Section 4612(n) does not

track with the unambiguous language of the statute. Section 4612(n) does not require

the Attorney General to file suit within thirty days of the Commission’s referral.

Instead, Section 4612(n) requires the Attorney General (i.e., the DOJ), in the absence

of conflict, to “pursue” a civil action withing thirty days of a referral from the

Commission.

“Pursue,” as defined by Merriam-Webster, means “to find or employ measures

to obtain or accomplish,” “to proceed along,” or “to engage in.”35 Using this plain

meaning, the Court finds that it is evident that the General Assembly wanted the word

“pursue” to mean “to proceed along or engage in.” This is especially true given that

the words “commence a civil action” is not used in Section 4612(n)(2) but rather in

Section 4612(n)(3). Moreover, Section 4612(n)(3) does not set a deadline other than to

say that “such action shall be commenced promptly after the Commission employs

such counsel.”36

34
6 Del. Code §4612(n).
35
Pursue, MERRIAM-WEBSTER DICTIONARY, https://www.merriam-webster.com/dictionary/pursue (last visited Aug.
4, 2024).
36
6 Del. C. § 4612(n) (emphasis added).
6
When the Commission referred the action to the Attorney General, Section

4612(n)(2) required the DOJ to begin pursuit of a civil action within thirty days. This

could include determining whether a conflict exists, undertaking due diligence and

alike. Section 4612(n)(2) does not provide that the DOJ file a complaint within thirty

days. If the Attorney General decides not to file suit, the Commission is empowered to

employ special counsel to pursue an action. The special counsel is to commence suit

promptly. The Court reads the statue to require the DOJ to begin action on the matter

within thirty days after the Commission makes a referral or charge.

Additionally, the General Assembly amended Section 4612(n) in 1994.37 The

amendment removed “commenced promptly” language from Section 4612(n)(2). The

removal of this language supports a finding that there is no hard deadline—e.g., thirty

days—by which the DOJ must commence a civil action in this Court. Now, DFHA

mentions commencing an action only in connection with the retention of special

counsel.

At this stage in the proceedings, the Court finds there are no facts that show that

the DOJ did not begin pursuing a civil action within thirty days from when the Director

authorized referral of the matter to the DOJ. Accordingly, the Court DENIES the

Motion as it relates whether this action is time barred.38

37
6 Del. Code Ann. §4612 (1969), amended by 6 Del. Code Ann. §4612 (2005 Replacement Vol.).
38
See, e.g., Delaware Human and Civil Rights Comm’n v. Schell Bros., LLC, 2023 WL 6793185, at *2 (Del. Super.
Oct. 13, 2023) (denying motion to dismiss in situation where complaint filed by special counsel nine months after
charge and two months after DOJ determined that it had a conflict). Defendants attempt to distinguish Schell as it
deals with prompt commencement by the special counsel. Id. However, if Defendants’ legal argument were applied
to the facts in Schell, the Court should have dismissed that matter as the DOJ had the Commission’s change for over
seven months before determining that a conflict existed. Id. Then, two months later, the Commission retained
special counsel. Id.
7
B. THE COURT ORDERS DEFENDANTS TO FILE A REPLY BRIEF ON THEIR DFHA
4612(A) ARGUMENT.

Next, Defendants contend that Counts I and III must be dismissed because

those claims were not included within the Commission’s charge to the Attorney

General.39 Defendants rely on the language of Section 4612(a) but cite no additional

authority for their position that a complaint filed in the Court cannot exceed the scope

of the Commission’s charge.

The Commission contends that Count I and III are valid because the charges

are reasonably related to the claims filed with the Commission.40 Moreover, the

Commission argues that Counts I and III are valid claims because the scope of the

Amended Complaint is only limited by the Commission’s charge and the

“investigation which can reasonably be expected to grow out of that charge.”41 The

Commission relies on Rhode Island Commission for Human Rights v. Graul42 to

support its argument.

The Court has not found any Delaware decisions addressing this issue.

Defendants make their argument on the language of the statute but refer to no authority

interpreting this statute or a comparable statute. The Commission’s reliance on Graul

seems factually distinguishable As this may be a case of first impression, the Court

will set a hearing and hear oral argument on this remaining issue.

39
Mot. at 14-15.
40
Resp. ¶ 17.
41
Id. ¶¶ 17-19.
42
120 F. Supp. 3d 110 (D.R.I. 2015).
8
V. CONCLUSION

For the reasons stated above, the Court DENIES in part the Motion and RESERVES

decision on dismissal of Counts I and III under DFHA 4216(a) pending a hearing and oral

argument.

IT IS SO ORDERED.

Dated: August 6, 2024
Wilmington, Delaware

/s/ Eric M. Davis
Eric M. Davis, Judge

cc: File&ServeXpress

9