Mitchell v. Hill et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Robin Mitchell
v. Case No. 21-cv-1068-LM
Janet Hill,
Central Gold Key Realty,
Peter and Marlene Desjardins, and
Charley Arena, Top to Bottom Home
Inspections
REPORT AND RECOMMENDATION
Pro se plaintiff Robin Mitchell, proceeding in forma
pauperis, has filed an amended complaint against several
businesses and individuals in connection with her purchase of a
home. Ms. Mitchell claims that the defendants defrauded her by
misrepresenting the condition of the home and discriminated
against her on the basis of her disability. The amended
complaint (Doc. No. 4) is before the court for preliminary
review pursuant to LR 4.3(d)(2) and 28 U.S.C. § 1915(e)(2).1
1Ms. Mitchell originally filed a complaint on December 14,
2021. (Doc. No. 1). On January 5, 2022, the court granted Ms.
Mitchell leave to amend her complaint to include additional
facts to support her claim of disability discrimination. (Doc.
No. 3). In conducting this preliminary review, the court will
consider Ms. Mitchell’s allegations in both the original and
amended complaints, as well as the documents she has submitted
in connection with those complaints.
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Preliminary Review Standard
The magistrate judge conducts a preliminary review of
pleadings, like Ms. Mitchell’s that are filed in forma pauperis.
See LR 4.3(d). The magistrate judge may recommend to the
district judge that one or more claims be dismissed if, among
other things, the court lacks jurisdiction, a defendant is
immune from the relief sought, or the complaint fails to state a
claim upon which relief may be granted. See 28 U.S.C. §
1915(e)(2); LR 4.3(d). In conducting its preliminary review,
the court construes pro se complaints liberally. See Erickson
v. Pardus, 551 U.S. 89, 94 (2007) (per curiam). The complaint
must contain “sufficient factual matter, accepted as true, to
‘state a claim to relief.’” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (citation omitted). The court treats as true all
well-pleaded factual allegations, and construes reasonable
inferences in plaintiff’s favor. See Ocasio-Hernández v.
Fortuño-Burset, 640 F.3d 1, 12 (1st Cir. 2011).
Background
Ms. Mitchell alleges that, in November 2021, she purchased
a mobile home and property in Northfield, NH from defendants
Peter and Marlene Desjardins for $180,000. In connection with
the sale, defendant Janet Hill, a real estate agent working for
defendant Central Gold Key Realty, was serving as an agent for
both Ms. Mitchell and the sellers. Defendant Charley Arena, of
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Top to Bottom Home Inspections, performed a pre-sale inspection
of the home.
Ms. Mitchell alleges that she has mobility issues that the
defendants were aware of. She asserts that despite being told
before the sale that she could live “comfortably” in the home,
“the facilities” do not work, so she must stay at hotels to get
clean. She claims that the sellers lied on property disclosures
with respect to water, well, drainage, septic and other issues.
She also suggests that defendants Hill and Arena knew or should
have known of the home’s deficits, but failed to warn her.
Analysis
The court first addresses whether it has jurisdiction over
Ms. Mitchell’s claims. The court is “under an unflagging duty
to ensure that it has jurisdiction over the subject matter of
the cases it proposes to adjudicate.” Am. Policyholders Ins.
Co. v. Nyacol Prod., Inc., 989 F.2d 1256, 1258 (1st Cir. 1993);
see also Fideicosimo de la Tierra del Caño Martin Peña v.
Fortuño, 604 F.3d 7, 16 (1st Cir. 2010) (“[O]ur ‘obligation to
inquire sua sponte into our jurisdiction over the matter’ exists
in every case.” (quoting Doyle v. Huntress, Inc., 419 F.3d 3, 6
(1st Cir. 2005))).
“‘Federal courts are courts of limited jurisdiction,’
possessing ‘only that power authorized by Constitution and
statute.’” Gun v. Minton, 568 U.S. 251, 256 (2013) (quoting
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Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377
(1994). The plaintiff has the burden to establish the court's
jurisdiction. Calderón–Serra v. Wilmington Trust Co., 715 F.3d
14, 17 (1st Cir. 2013).
To invoke this court's subject matter jurisdiction, a
plaintiff must allege either that this action raises a federal
question, in that the cause of action arises under federal law,
or that this court has diversity jurisdiction over the matter.
See 28 U.S.C. § 1331 (federal question) and § 1332 (diversity).
To establish diversity jurisdiction, plaintiff must assert that
the parties are citizens of different states, see id. at §
1332(a)(1), and that the amount in controversy in this action
exceeds $75,000. See id. at § 1332(b).
A. Diversity Jurisdiction
According to the complaint, Ms. Mitchell is a citizen of
New Hampshire, as are defendants Hill, Central Gold Key Realty
and Arena/Top to Bottom Home Inspections. Therefore, Ms.
Mitchell cannot invoke diversity jurisdiction with respect to
any potential state law claims she could assert in this case.
See Alvarez–Torres v. Ryder Mem'l Hosp., Inc., 582 F.3d 47, 53–
54 (1st Cir. 2009) (observing that diversity jurisdiction does
not exist where “any plaintiff is a citizen of the same state as
any defendant”).
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B. Federal Question Jurisdiction
The court liberally construes Ms. Mitchell’s references to
her disability as asserting violations of the Fair Housing Act
(“FHA”), 42 U.S.C. § 3601 et seq. Under the FHA, it is unlawful
to discriminate in the sale or rental of a dwelling to any buyer
or renter because of a handicap of (A) that buyer or renter. 42
U.S.C. § 3604(f)(1) (A)–(C). It is also “unlawful for any
person or other entity whose business includes engaging in
residential real estate-related transactions to discriminate
against any person in making available such a transaction, or in
the terms or conditions of such a transaction, because of . . .
handicap.” 42 U.S.C. § 3605(a).
“The FHA contemplates three types of claims for perceived
discrimination: disparate treatment, disparate impact, and
failure to make reasonable accommodations.” Astralis Condo.
Ass'n v. Sec., U.S. Dept. of Hous. and Urb. Dev., 620 F.3d 62,
66–67 (1st Cir. 2010) (internal citations omitted). Ms.
Mitchell, who asserts that she was “taken advantage of,” Compl.
(Doc. No. 1) at 2, appears to be asserting a claim for disparate
treatment. To prevail on her claim, Ms. Mitchell’s complaint
must allege that “some discriminatory purpose was a motivating
factor behind the challenged action.” Vanderburgh House, LLC v.
City of Worcester, 530 F. Supp. 3d 145, 154 (D. Mass. 2021).
“The discriminatory purpose need not be malicious or invidious,
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nor need it figure in solely, primarily, or even predominantly
into the motivation behind the challenged action . . . . The
plaintiff is only required to show that a protected
characteristic played a role in the defendant's decision to
treat her differently.” Id.
Ms. Mitchell has provided the court with both descriptions
and documents to support her allegations that she purchased a
home that was defective in many relevant aspects that were not
made known to her, that she was deceived about other home
conditions, and that a post-purchase inspection revealed
significantly more defects than did the pre-purchase inspection
allegedly performed by defendant Arena. See Am. Compl (Doc. No.
4), Exh. A-G (Doc. Nos. 4-1 -4-14). She also asserts that her
physical disabilities were obvious. Nevertheless, there are no
facts that would tend to support the necessary legal conclusion
that the acts of any defendant were motivated in any way by Ms.
Mitchell’s disability. Her conclusory assertions that she was
“treated differently” because of her disabilities, Am. Comp.
(Doc. No. 4) at 2, or the assertion that defendants lied to her
about the condition of the home because of her disability, id.
at 4, are unsupported conclusions. Moreover, none of the
documents Ms. Mitchell has submitted that relate to the
inspection and sale make mention of her disabilities. Finally,
although Ms. Mitchell alleges that a post-purchase inspection
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revealed numerous defects in her home, none are necessarily
related to a disabled person’s ability to live there, a fact
which might support her FHA claim. Thus, her reliance on the
fact that her disabilities were “obvious” is insufficient to
state a claim for disability discrimination.
Accordingly, the district judge should dismiss Ms.
Mitchell’s FHA claim for failure to state a claim upon which
relief can be granted. Moreover, to the extent Ms. Mitchell has
asserted state law claims such as negligence or
misrepresentation, the district judge should decline to exercise
supplemental jurisdiction over those claims, and dismiss them
without prejudice to Ms. Mitchell’s ability to file suit in
state court. See Rodriguez v. Doral Mortg. Corp., 57 F.3d 1168,
1177 (1st Cir. 1995) (“As a general principle, the unfavorable
disposition of a plaintiff's federal claims at the early stages
of a suit, well before the commencement of trial, will trigger
the dismissal without prejudice of any supplemental state-law
claims.”).
Conclusion
For the foregoing reasons, the district judge should
dismiss the federal claims in this case for failure to state a
claim upon which relief can be granted, should decline to
exercise supplemental jurisdiction over the state law claims,
and dismiss the state claims without prejudice. Any objections
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to this Report and Recommendation must be filed within fourteen
days of receipt of this notice. See Fed. R. Civ. P. 72(b)(2).
The fourteen-day period may be extended upon motion. Only those
issues raised in the objection(s) to this Report and
Recommendation are subject to review in the district court. See
Sch. Union No. 37 v. United Nat'l Ins. Co., 617 F.3d 554, 564
(1st Cir. 2010). Any issues not preserved by such objection(s)
are precluded on appeal. See id. Failure to file any objections
within the specified time waives the right to appeal the
district court's Order. See Santos-Santos v. Torres-Centeno,
842 F.3d 163, 168 (1st Cir. 2016).
______________________________
Andrea K. Johnstone
United States Magistrate Judge
April 25, 2022
cc: Robin Mitchel, pro se
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