The opinion of the court was delivered by: Paul L. Friedman United States District Judge
This matter is before the Court on the defendant's motion to dismiss or, in the alternative, for summary judgment, and the plaintiffs' motion to amend their complaint. After careful consideration of the parties' filings, the relevant legal authorities, and the entire record in this case, by Order of September 28, 2012, the Court granted the defendant's motion to dismiss, granted the plaintiffs' motion to amend, and dismissed all but one count of the amended complaint. See Order (Sept. 28, 2012). This Opinion explains the reasoning behind that Order.*fn2
This action was commenced in October 2010 on behalf of nine individual plaintiffs who formerly inhabited La Casa Shelter, an emergency, low-barrier housing facility for the homeless that was located in the Columbia Heights neighborhood of the District of Columbia. Am. Compl. ¶¶ 2-14. La Casa, the facilities of which consisted of portable trailers, was operated by a contractor of the District of Columbia until October 15, 2010, when the shelter was closed at the direction of the District. See Memorandum Opinion and Order at 2 (Aug. 3, 2011). The District says that its closure of La Casa was part of its efforts to expand its Permanent Supportive Housing ("PSH") program, which involves the placement of chronically homeless individuals in permanent housing where they can gain access to long-term supportive services. Id. According to the plaintiffs, the District uses the PSH program "as an excuse for closing the shelters in the predominantly white parts of the city." Id. The plaintiffs brought claims of discrimination based on race, disability, and place of residence under the Fair Housing Act, 42 U.S.C. §§ 3601 et seq., the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq., and the District of Columbia Human Rights Act, D.C. Code §§ 2-1401.01 et seq., alleging that the District is "systematically removing persons who are disabled, indigent, and predominantly minority" from areas inhabited by "the most affluent, white populations" in the city, and placing those homeless individuals in poorer neighborhoods "with the least resources available." Id. at 2-3. In support of these claims, the plaintiffs have noted that La Casa was the "last remaining public shelter in Ward 1" and that Wards 2, 3, and 4 of the District already lacked public shelters. Id.
The plaintiffs' complaint was accompanied by a motion requesting a temporary restraining order and both preliminary and permanent injunctive relief. See Plaintiffs['] Motion for Temporary Restraining Order, Preliminary and Permanent Injunctions [Dkt. No. 11]. Treating the motion as a request for an immediate temporary restraining order, a motions judge promptly denied it, stating that the plaintiffs' asserted injuries "provides no basis for entering an emergency injunction before the District may be heard on the matter." Memorandum and Order at 2 (Oct. 22, 2010). The plaintiffs filed an amended motion in November 2010, seeking preliminary injunctive relief. This Court denied that motion upon concluding that the plaintiffs had not satisfied the four-part standard necessary to obtain such relief. See Opinion (Dec. 17, 2010). In particular, the Court found no substantial likelihood that the plaintiffs were likely to succeed on their claims. Id. at 6-11.
In December 2010, the District of Columbia filed its motion to dismiss or, in the alternative, for summary judgment. Over the next several months, however, the plaintiffs filed four separate motions to amend their complaint, which they already had amended once as of right.*fn3 Explaining that it did not intend to review four separate and likely redundant motions, the Court denied without prejudice the motions to amend and directed the plaintiffs instead to file a single motion specifically identifying all proposed changes to the complaint. See Memorandum Opinion and Order at 3-4 (Aug. 3, 2011). The plaintiffs subsequently filed their pending motion to amend.
In their proposed second amended complaint, the plaintiffs seek to add
thirty-three new plaintiffs to the action, to provide additional
information relating to their claims, and to add two new claims,
arising under the District of Columbia's Homeless Services Reform Act,
D.C. Code § 4-751 et seq., and the Due Process Clause of the United
States Constitution. Mot. Am. at 2, 5-7; see 2d Am. Compl.*fn4
The District opposes the plaintiffs' motion, arguing that the
proposed amendment is futile.
"Whether to grant a motion to amend is within the sound discretion of the district court." Gerlich v. United States DOJ, 828 F. Supp. 2d 284, 290-91 (D.D.C. 2011). Under Rule 15(a) of the Federal Rules of Civil Procedure, a court should "freely give leave" to amend a pleading "when justice so requires." FED. R. CIV. P. 15(a). "However, a district court may properly deny a motion to amend if the amended pleading would not survive a motion to dismiss." In re Interbank Funding Corp. Sec. Litig., 629 F.3d 213, 218 (D.C. Cir. 2010) (citing Foman v. Davis, 371 U.S. 178, 182 (1962)); accord Nat'l Wrestling Coaches Ass'n v. Dep't of Educ., 366 F.3d 930, 945 (D.C. Cir. 2004). Where granting a motion to amend would "waste time and judicial resources" because the complaint "must fail, as a matter of law, in light of the record in the case," justice does not require permitting amendment. Ross v. DynCorp, 362 F. Supp. 2d 344, 364 n.11 (D.D.C. 2005). "In other words, if the proposed amendment would still render the complaint deficient, courts need not grant leave." S.K. Innovation, Inc. v. Finpol, 854 F. Supp. 2d 99, 106-07 (D.D.C. 2012). Leave to amend also may be denied based on "undue delay, bad faith, undue prejudice to the opposing party, [or] repeated failure to cure deficiencies." Richardson v. United States, 193 F.3d 545, 548-49 (D.C. Cir. 1999).
Rule 12(b)(6) allows dismissal of a complaint if a plaintiff fails "to state a claim upon which relief can be granted." FED. R. CIV. P. 12(b)(6). "Federal Rule of Civil Procedure 8(a)(2) requires only 'a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests[.]'" Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Although "detailed factual allegations" are not necessary to withstand a Rule 12(b)(6) motion to dismiss, id., the complaint "must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotations omitted). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." In re Interbank Funding Corp. Sec. Litig., 629 F.3d 213, 218 (D.C. Cir. 2010) (quoting Ashcroft v. Iqbal, 556 U.S. at 678). The Court "must accept as true all of the factual allegations contained in the complaint." Erickson v. Pardus, 551 U.S. 89, 94 (2007); see also Bell Atlantic Corp. v. Twombly, 550 U.S. at 555. The complaint "is construed liberally in the [plaintiff's] favor, and [the Court should] grant [the plaintiff] the benefit of all inferences that can be derived from the facts alleged." Kowal v. MCI Commc'ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). Nevertheless, the Court need not accept inferences drawn by the plaintiff if those inferences are unsupported by facts alleged in the complaint, nor must the Court accept the plaintiff's legal conclusions. See id.; Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002).
In deciding a motion to dismiss under Rule 12(b)(6), the Court "may consider the facts alleged in the complaint, documents attached to the complaint as exhibits or incorporated by reference, and matters about which the [C]court may take judicial notice." Cole v. Boeing Co., 845 F. Supp. 2d 277, 283 (D.D.C. 2012) (citing Abhe & Svoboda, Inc. v. Chao, 508 F.3d 1052, 1059 (D.C. Cir. 2007)). "In determining whether to dismiss, courts treat documents attached to a complaint as if they are part of the complaint." In re Cheney, 406 F.3d 723, 729 (D.C. Cir. 2005) (citing EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624-25 (D.C. Cir. 1997)).*fn5
A. Disparate Treatment Based on Race under the FHA (Count I)*fn6
1. "Dwellings" under the FHA
The Fair Housing Act prohibits discrimination in the sale and rental of properties and also makes it unlawful to "otherwise make unavailable or deny a dwelling to any person because of race, color, religion, sex, familial status, or national origin." 42 U.S.C. § 3604. If La Casa qualifies as a "dwelling" under this provision, then its closure would appear to "make [it] unavailable" to its former inhabitants and "deny" them a dwelling there within the meaning of the FHA. Cf. 2922 Sherman Ave. Tenants' Ass'n v. District of Columbia, 444 F.3d 673, 685 (D.C. Cir. 2006) (holding that instructing tenants that their occupancy is prohibited and that they must seek alternative housing qualifies as making a dwelling "unavailable" under the FHA); Greater New Orleans Fair Hous. Action Ctr. v. U.S. Dept. of Hous. & Urban Dev., 723 F. Supp.
In addition, the plaintiffs' proposed amended complaint purports to "incorporate by reference in their entirety . . . [p]laintiffs' evidence previously filed, and points and authorities and facts provided in Plaintiffs' Reply to Defendant's Opposition to injunctive and declaratory relief, filed December 6, 2010, and the evidence filed Dec. 26, 2010 in Plaintiffs' Motion for Reconsideration." 2d Am. Compl. at 8 n.3. There is no basis in the Federal Rules for incorporating these materials into the plaintiffs' complaint. Rule 10 provides only that a "statement in a pleading may be adopted by reference . . . in any other pleading or motion." FED. R. CIV. P. 10(c) (emphasis added). The plaintiffs' prior memoranda and attachments thereto are not statements in a pleading, see FED. R. CIV. P. 7(a) (listing documents that constitute pleadings) and may not be incorporated by reference into a complaint. Finally, in assessing the sufficiency of this complaint, the Court will not consider factual allegations made by the plaintiffs exclusively in their briefing, as opposed to within the proposed complaint itself. The plaintiffs have had ample opportunity to fashion a comprehensive complaint, and ample warnings about the consequences of failing to do so.
2d 14, 22-23 (D.D.C. 2010) ("[T]he D.C. Circuit has made clear that 'make unavailable' means not just preventing access to new housing by prospective buyers and renters but also the loss of housing to those who already occupy it.").
As a preliminary matter, the Court rejects - at least at this stage of the proceedings - the District's contention that La Casa was not a "dwelling" within the meaning of the FHA and that the plaintiffs' FHA claims must fail on that basis alone.*fn7 The District maintains that "several" courts "have found that the FHA does not apply to low barrier homeless shelters because such shelters do not fall within the FHA's definition of a 'dwelling.'" MTD at 22; see Opp. Am. at 7 n.6. In support, the District cites only two decisions, one of which did not rule on the issue at all, but instead assumed without deciding that homeless shelters do qualify as dwellings under the Act, while expressing some doubt about that point. See Johnson v. Dixon, 786 F. Supp. 1, 4 (D.D.C. 1991). The other decision found that a particular homeless shelter did not qualify as a "dwelling" based on ten context-specific factors regarding the terms of residence at that shelter - information that was presented at summary judgment. See Intermountain Fair Hous. Council v. Boise Rescue Mission Ministries, 717 F. Supp. 2d 1101, 1111 (D. Idaho 2010). Here, such detailed information about the terms of residence at La Casa shelter has not been provided.
The District cites the definition of a "low barrier shelter" under D.C. Code § 4-751.01(26) in support of its contention that such shelters constitute "transient" housing similar to "hotels and bed and breakfasts," but the District fails to note that the provision it cites defines low-barrier facilities as offering shelter "without imposition of . . . time limits." Id. This definition undermines the District's argument that La Casa "was neither intended nor designed for long term stay," MTD at 24, a claim that is further belied by the plaintiffs' declarations attesting to their habitual and regular stay at La Casa. See 2d Am. Compl., Exh. 1.; cf. Intermountain Fair Hous. Council v. Boise Rescue Mission Ministries, 717 F. Supp. 2d at 1111 (relying in part on fact that residents of shelter in question "generally are allowed to stay for a maximum of seventeen consecutive nights"). Furthermore, the District concedes that at least three decisions have applied the FHA to homeless shelters, while maintaining that these decisions "have not squarely addressed whether all homeless shelters constitute a 'dwelling' under the FHA." MTD at 23.
Mindful that "the FHA should be broadly construed to effectuate its remedial purpose," Nat'l Fair Hous. Alliance, Inc. v. Prudential Ins. Co. of Am., 208 F. Supp. 2d 46, 55 (D.D.C. 2002) (citing Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205, 211-12 (1972)), and lacking evidence about La Casa of the type that was relied on in Intermountain Fair Housing Council, the Court does not find the FHA categorically inapplicable based on its definition of the word "dwelling."
2. Sufficiency of the Plaintiffs' Allegations "[P]laintiffs alleging disparate treatment must establish . . . that the defendant intentionally discriminated against them on the basis of race or ethnicity." 2922 Sherman Ave. Tenants' Ass'n v. Dist. of Columbia, 444 F.3d at 682; see id. at 684 ("In disparate treatment cases . . . we focus on the defendant's motivation, not the effects of its actions."). In disparate treatment claims under the FHA, this circuit has utilized the burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973), for employment discrimination cases. 2922 Sherman Ave. Tenants' Ass'n v. Dist. of Columbia, 444 F.3d at 682. That framework applies "where direct evidence of discriminatory intent is not available," Hall v. Giant Food, Inc., 175 F.3d 1074, 1077 (D.C. Cir. 1999), and plaintiffs may proceed by "present[ing] sufficient evidence to permit an inference of discrimination," which the defendant must rebut by articulating "a legitimate, nondiscriminatory reason for its actions," which in turn may be rebutted "by showing that the defendant's proffered reason was pretext for discrimination." Id. (citing McDonnell Douglas Corp. v. Green, 411 U.S. at 802-04). The plaintiff "may meet her burden of proof by either direct or circumstantial evidence." Dunaway v. Int'l Broth. of Teamsters, 310 F.3d 758, 763 (D.C. Cir. 2002) (citing U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 714 n.3 (1983)).
That having been said, under the burden-shifting framework the question of whether a prima facie case has been established "is almost always irrelevant. At the motion to dismiss stage, the district court cannot throw out a complaint even if the plaintiff did not plead the elements of a prima facie case." Brady v. Office of Sergeant at Arms, 520 F.3d 490, 493 (D.C. Cir. 2008) (citing Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510-11 (2002)). Rather, "the ordinary rules for assessing the sufficiency of a complaint apply." Swierkiewicz v. Sorema N. A., 534 U.S. at 511. "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face," meaning that "the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." In re Interbank Funding Corp. Sec. Litig., 629 F.3d at 218 (quoting Ashcroft v. Iqbal, 556 U.S. at 678). The Supreme Court has explained that "a court considering a motion to dismiss can choose ...