Village, Inc., C.A. Nos. 86-2917, 86-3196, and 86-3268. Various other suits involving related issues were pending before this Court at that time in Spann v. Carley Capital Group, C.A. No. 87-0054; Spann v. Words & Company, C.A. No. 87-1154; Spann v. Zoslow Associates, C.A. No. 87-1155; and Spann v. Restec Corporation, C.A. No. 87-1156 (hereinafter generally the " Carley actions"), and the Court on June 4, 1987, ordered plaintiffs in these cases to distinguish their claims from those asserted in Colonial Village. On June 15, 1987, the Colonial Village plaintiffs appealed from this Court's May 22, 1987 order, and on July 21, 1987, they moved for a stay of the proceedings in the Carley actions pending the outcome of the Colonial Village appeal. Some of the defendants in the Carley actions did not oppose the stay request, and others requested instead of a stay a dismissal with or without prejudice. The Court on February 11, 1988 granted plaintiffs' stay request.
In April of this year, the Court of Appeals dismissed the appeal in Colonial Village without prejudice for lack of a final order under Fed.R.Civ.P. 54(b). Subsequently, the plaintiffs filed a motion requesting this Court to enter a final judgment so that they could proceed with their appeal. On October 13, 1988, this Court entered an order denying a motion of Mobil Land Development Corporation to dismiss or quash service, and motions of another defendant for Rule 11 sanctions. The resolution of those two issues made judgment in those cases final. Mobil Land Development then moved to reconsider; the Court denied that motion on November 9, 1988, clearing the way for appeal in the Colonial Village cases; and the plaintiffs in those cases filed notices of appeal on November 10, 1988.
Given the length of time that had already elapsed and that was likely to elapse as a consequence of the second appeal, the Court decided on September 30, 1988, that, rather than to continue in effect the stay pending appeal, it would dismiss the Carley actions without prejudice, unless plaintiffs demonstrated that such a dismissal would subsequently bar these actions on statute of limitations grounds. Plaintiffs thereafter duly filed a memorandum asserting that even a subsequent reconsideration by the Court of the dismissal under Rule 60(b), Fed.R.Civ.P., would leave them vulnerable to a statute of limitations defense. Although it is not entirely clear that plaintiffs' fear in that respect is correct,
the Court has no wish to gamble with plaintiffs' causes of action. Accordingly, it will not dismiss their lawsuits on that basis.
That leaves the question of what should be done next. The Court could, of course, maintain the status quo of a stay pending the decision of the Court of Appeals in Colonial Village. However, in view of the delay that has already occurred, and the further delay that is likely from a consideration of that case by the appellate court on the merits of Colonial Village, it seems more appropriate to proceed here with the merits of the Carley actions.
All the defendants submitting responses to plaintiffs' memorandum that purports to distinguish these cases from Colonial Village claim that the Court lacks jurisdiction under the three statutes cited in the complaint -- 42 U.S.C. § 1981, 42 U.S.C. § 1982, and the Fair Housing Act, 42 U.S.C. § 3604.
The section 1981-1982 issue was addressed in the Colonial Village Opinion, and the Court sees no basis for reconsidering its view that these provisions do not establish a claim in the advertising context. Jones v. Alfred H. Mayer Co., 392 U.S. 409, 413, 20 L. Ed. 2d 1189, 88 S. Ct. 2186 (1968).
The situation is different, however, with respect to the Fair Housing Act. The Court perceived no difficulty with respect to plaintiffs' reliance on that Act then, and it perceives no difficulty with their reliance thereon now. The Act makes it unlawful inter alia to publish any advertisement with respect to the sale or rental of housing that indicates any preference or limitation based on race or color. 42 U.S.C. § 3604(c). Clearly, then, the subject matter of the lawsuit is covered by the statute. As for the limitation period under section 3610(b) and/or section 3610(d) which apply to some of these actions,
and under section 3612(a), which govern others,
plainly the suits were filed within the appropriate time periods. Nor does section 3610(d) bar these actions as claimed by GLM. That section does not permit suit to be filed pursuant to the Fair Housing Act if a state or local remedy substantially equivalent to that established by the Act is available. The District of Columbia Human Rights Law, D.C.Code § 1-2556, is governed by a one-year statute of limitations, a period that has run with respect to the practices here complained of on the part of GLM. Thus, no local remedy is available.
More substantively, the defendants argue that the Court's Colonial Village decision is dispositive here on the facts, and that the actions should be dismissed, or summary judgment granted, on the basis that the complaints fail to state claims upon which relief may be granted. In order to consider that argument it is of course necessary to restate briefly what the Court decided in Colonial Village. The Court there held that if in real estate advertisements some photographs feature white models, some black models, and some of both, no violation of the Act occurs merely because the races are not represented proportionately to population, or because black models are not included in every display, unless an intention to discriminate is shown by extrinsic evidence.
Contrary to defendants' assertions, it may be that the conditions referred to in Colonial Village as establishing violations are present here. Plaintiffs claim -- at this stage of the proceedings without contradiction
-- that during the periods of time covered by the complaints, advertisements were published by defendants that failed to include a single black model, and that in other respects as well intentional racial discrimination occurred. On this basis, there is no warrant for dismissing the complaints, in whole or in part.
Moreover, as indicated above, it is now appropriate that these actions shall proceed forward.
Accordingly, for the reasons stated, it is this 12th day of December, 1988
ORDERED that the motion of GLM Equities for summary judgment and dismissal, and the requests by the other defendants for dismissal with or without prejudice, be and they are hereby denied, except that plaintiffs' claims pursuant to 42 U.S.C. §§ 1981 and 1982 and 42 U.S.C. § 3604(a) be and they are hereby dismissed; and it is further
ORDERED that the stay entered on February 11, 1988, be and it is hereby vacated; and it is further
ORDERED that discovery shall be cut-off as of February 10, 1989; and it is further
ORDERED that any additional dispositive motions shall be filed by February 17, 1989, or they shall be deemed waived; and it is further
ORDERED that a status call will be held on February 24, 1989, at 9:45 a.m., in Courtroom No. 1, to determine a date for trial.