     11-951-cv; 11-2218-cv
     Suzanne Taylor v. Harbour Pointe Homeowners Ass’n

 1                               UNITED STATES COURT OF APPEALS
 2                                    FOR THE SECOND CIRCUIT
 3                                     _____________________
 4
 5                                             August Term, 2011
 6
 7          (Argued: April 16, 2012                                    Decided: August 2, 1012)
 8
 9                                    Docket Nos. 11-951-cv; 11-2218-cv
10                                        _____________________
11
12                                           SUZANNE K. TAYLOR,
13
14                                                                  Plaintiff-Appellant-Cross-Appellee,
15
16                                                       v.
17
18               HARBOUR POINTE HOMEOWNERS ASSOCIATION AND CANDACE GRASER,
19
20                                                             Defendants-Appellees-Cross-Appellants.
21
22   Before: JACOBS, Chief Judge, B.D. PARKER, and HALL, Circuit Judges.
23                                      ___________________
24
25           Cross-appeals from (1) a judgment of the United States District Court for the Western
26   District of New York (Curtin, J.) granting Defendants-Appellees-Cross-Appellants Harbour
27   Pointe Homeowners Association (“HPHA”) and Candace Graser’s motion for summary
28   judgment and dismissing Plaintiff-Appellant-Cross-Appellee Suzanne Taylor’s Fair Housing Act
29   claim, and (2) an order of that court denying prevailing parties’ motion for attorneys’ fees under
30   42 U.S.C. § 3613(c)(2). We dismiss Taylor’s appeal for failure to comply with Rule 28 of the
31   Federal Rules of Appellate Procedure and Local Rule 28.1. We further conclude that Taylor’s
32   claim is frivolous, and that the district court improperly denied the HPHA and Graser’s motion
33   for attorneys’ fees.
34           The appeal is DISMISSED. On the cross-appeal concerning fees, the order of the district
35   court is REVERSED, and the case is REMANDED.
36                                           ___________________
37
38                                               CHARLES L. MILLER, II (Lindy Korn, on the brief), Law
39                                                 Office of Lindy Korn, Buffalo, NY, for Plaintiff-
40                                                 Appellant-Cross-Appellee.
41
1                                         MINRYU KIM (Alan Bozer, on the brief), Phillips Lytle
2                                            LLP, Buffalo, NY, for Defendants-Appellees-Cross-
3                                            Appellants.
4    ______________________________________________________________________________
5    BARRINGTON D. PARKER, Circuit Judge:

 6           Suzanne Taylor appeals from a judgment of the United States District Court for the

7    Western District of New York (Curtin, J.). The court granted Harbour Pointe Homeowners

 8   Association (“HPHA”) and Candace Graser’s motion for summary judgment and dismissed

 9   Taylor’s failure to accommodate claim under the Fair Housing Act (“FHA”).1 The HPHA and

10   Graser cross-appeal from an order of the district court denying their motion, as prevailing

11   parties, for attorneys’ fees under 42 U.S.C. § 3613(c)(2). Because Taylor did not comply with

12   Rule 28 of the Federal Rules of Appellate Procedure or Local Rule 28.1, we dismiss her appeal.

13   In addition, because we conclude that Taylor’s FHA claim is frivolous, the HPHA and Graser are

14   entitled to an award of attorneys’ fees.

15                                              BACKGROUND

16           The material facts are not in dispute. For several years, Taylor, a member of the bar who

17   alleges that she suffers from clinical depression, has lived in Harbour Pointe Common, a private

18   community in Buffalo, New York. The community is managed by the HPHA. During the time

19   the events that gave rise to this action occurred, Graser was the president of the HPHA’s board

20   of directors.



             1
               In 1988, Congress passed the Fair Housing Amendments Act (“FHAA”), extending
     protections against housing discrimination under the FHA, 42 U.S.C. § 3601 et seq., to, among
     others, individuals with disabilities. 42 U.S.C. § 3604(f)(1). For ease of reference, we refer to
     the statute under which Taylor brought suit as the FHA.


                                                      2
 1           For a number of years, Taylor’s glass-enclosed patio, visible from the main thoroughfare

 2   of Harbour Pointe Common, was in a state of disarray. Neighbors described the patio as a

 3   “pigsty.” [A 146] At various times, residents of the complex approached Graser expressing

 4   displeasure at the patio’s disorderly state. Graser repeatedly asked Taylor to clean up her patio;

 5   Taylor repeatedly stated that she would. [A 150-53] In response to particular requests, Taylor

 6   gave Graser and other neighbors permission to move a barbecue grill off Taylor’s patio. She

 7   also permitted them to put up trellises and gave them permission to hang curtains to block the

 8   view of the patio from the road. Although Taylor’s neighbors offered to assist her in cleaning

 9   the patio, Taylor expressed a preference to clean it herself. According to Taylor, in June 2008

10   she told Graser that if her neighbors – rather than Taylor herself – were to clean up her patio, it

11   would exacerbate her depression; specifically, it would “set[] [her] back in [her] recovery . . .[,]

12   isolate [her], . . . and . . . make[] it that much harder . . . to make any progress at all.” [A 235.]

13           On June 4, 2008, Taylor took a trip out of town. While she was away, her neighbor

14   Norman Cramp noticed that Taylor’s garage door was open. [A 170-71] Cramp contacted

15   Taylor, who ultimately gave him permission to retrieve her garage door opener and close the

16   door. [A 134-36] Cramp, Graser, and a third neighbor, George Woepperer, went to Taylor’s

17   house. They closed her garage door and, while there, cleaned up Taylor’s patio and consolidated

18   several items in the corner of Taylor’s garage. [A 159-60]

19           Taylor returned home on June 10 and discovered that the mess on her patio had been

20   cleared. She subsequently e-mailed Graser and the HPHA to complain of their “trespass,” and

21   also called the police and filed a police report complaining that her neighbors had engaged in



                                                         3
 1   trespass and burglary. [A 9] Later, on August 4, Taylor filed a verified complaint against the

 2   HPHA with the Department of Housing and Urban Development (“HUD”) and the New York

 3   State Division of Human Rights (“DHR”), alleging discriminatory housing practices on the basis

 4   of her disability in violation of the FHA and Article 15 of New York Human Rights Law. [A

 5   315] In October 2008, the DHR issued a Determination and Order After Investigation

 6   concluding that there was “no evidence of [Taylor]’s disability or that the accumulation of and/or

 7   clearing away of clutter is related to a disability.” [A 19.] The next month, HUD affirmed the

 8   DHR’s decision.

 9          On March 19, 2009, Taylor filed suit against the HPHA and Graser in the district court.

10   [A 6] She raised a failure to accommodate claim under the FHA as well as state law claims of

11   trespass to real property, trespass to chattels, and conversion. See 42 U.S.C. §§ 3601 et seq. At

12   the close of discovery, the HPHA and Graser moved for summary judgment. [A 22] The district

13   court granted that motion after concluding that Taylor had never requested reasonable

14   accommodation, as was required for her to establish a prima facie claim of failure to

15   accommodate, and declined to exercise supplemental jurisdiction over Taylor’s state law claims.

16   [SPA 1-13] Taylor v. Harbour Pointe Homeowners Ass’n, No. 09-cv-257, 2011 WL 673903, at

17   *7 (W.D.N.Y. Feb. 17, 2011).

18          After judgment was entered against Taylor, the HPHA and Graser moved under 42

19   U.S.C. § 3613(c)(2), which allows district courts in their discretion to award reasonable

20   attorneys’ fees and costs to the prevailing party in an action brought under the FHA. [A 494]

21   Although Taylor had failed to make out a prima facie case for disability discrimination under the



                                                     4
 1   FHA, the district court was “reluctant to . . . convert [that] finding into a showing . . . that

 2   [Taylor] lacked any reasonable grounds for bringing suit, ” and determined that Taylor’s

 3   discrimination claim was not “entirely ‘unreasonable or without foundation.’” Taylor v.

 4   Harbour Pointe Homeowners Ass’n, No. 09-cv-257, 2011 WL 1792766, at *3 (W.D.N.Y. May 6,

 5   2011) (quoting Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 422 (1978)). [SPA 19.]

 6   The parties filed cross-appeals, with Taylor challenging the district court’s determination on the

 7   merits and the HPHA and Graser challenging the district court’s denial of their application for

 8   attorneys’ fees.

 9                                               DISCUSSION

10           As a threshold matter, we turn to the HPHA and Graser’s argument that we should strike

11   Taylor’s brief and dismiss her appeal for failure to comply with Rule 28 of the Federal Rules of

12   Appellate Procedure as well as Local Rule 28.1.

13           Rule 28(a) requires an appellant’s brief to contain, “under appropriate headings and in the

14   order indicated,” among other things,

15           (4) a jurisdictional statement . . . ; (5) a statement of the issues presented for
16           review; (6) a statement of the case briefly indicating the nature of the case, the
17           course of proceedings, and the disposition below; (7) a statement of facts relevant
18           to the issues submitted for review with appropriate references to the record . . . ;
19           (8) a summary of the argument, which must contain a succinct, clear, and accurate
20           statement of the arguments made in the body of the brief . . . ; [and] (9) the
21           argument, which must contain . . . (B) for each issue, a concise statement of the
22           applicable standard of review.
23




                                                        5
 1   Fed. R. App. P. 28(a). In addition, Local Rule 28.1(a) states the following: “A brief must be

 2   concise, logically arranged with proper headings, and free of irrelevant matter. The court may

 3   disregard a brief that does not comply with this rule.”

 4           An appellant’s failure to comply with Rule 28 invites dismissal of the appeal. For

 5   instance, in Ernst Haas Studio v. Palm Press, Inc., we dismissed the appeal where the appellant’s

 6   brief failed to cite a single statute or court decision on point or present “a coherent legal theory . .

 7   . that would sustain the complaint.” 164 F.3d 110, 111-12 (2d Cir. 1999) (per curiam). The

 8   appellant’s brief was so deficient as to amount to “an invitation to the court to scour the record,

 9   research any legal theory that comes to mind, and serve generally as an advocate for appellant.”

10   Id. at 112; see also Murray v. Mitsubishi Motors of N. Am., 462 F. App’x 88, 91(2d Cir. 2012)

11   (summary order) (noting that “noncompliance warrants dismissal of the appeal” and dismissing

12   case where “brief borders on the incomprehensible”); Sioson v. Knights of Columbus, 303 F.3d

13   458, 459-60 (2d Cir. 2002) (per curiam) (dismissing appeal where brief lacked statement of facts,

14   summary of argument, and legal argument sections). At other times, where the failure to comply

15   with Rule 28 was not so stark, we have reached the merits because “declining to consider th[e]

16   appeal would unfairly penalize plaintiffs for [their attorney’s] failings as an advocate.” Amnesty

17   Am. v. Town of W. Hartford, 361 F.3d 113, 133 (2d Cir. 2004).

18           Taylor’s brief utterly fails to comply with Rule 28 and Local Rule 28.1. The brief

19   contains no jurisdictional statement and nowhere indicates the applicable standards of review.

20   Instead of a statement of the issues, statement of the case, statement of facts, and summary of

21   argument, Taylor’s brief has a short “Preliminary Statement.” That statement does not identify


                                                        6
 1   specific, discrete issues, and instead offers a scattered summary of Taylor’s legal argument and

 2   facts, without citations to the record. Lastly, in lieu of the sort of narrative factual summary that

 3   generally constitutes a statement of facts, Taylor’s brief has a bulleted “Summary of Facts

 4   Relating to the Request for Accommodation” that contains various factual assertions and legal

 5   arguments. Some of those bulleted points cite to the record and some do not. In her reply brief,

 6   rather than acknowledging or correcting her brief’s deficiencies, Taylor “contends that the

 7   preliminary statement succinctly encompasses th[e] very points” that Rule 28 requires. We

 8   disagree. Taylor’s brief falls woefully short of complying with either Rule 28 or Local Rule

 9   28.1. Considering those failures and, as discussed below, the utter lack of merit of Taylor’s

10   claims, dismissal would not “unfairly penalize” Taylor – an attorney – for her attorney’s

11   shortcomings. Accordingly her appeal is dismissed.

12          Turning to the question whether the HPHA and Graser are entitled to an award of

13   attorneys’ fees, our analysis of the cross-appeal begins with an inspection of Taylor’s now-

14   dismissed appeal. Taylor claims that the defendants violated her rights under the FHA, and

15   specifically that they “denied Ms. Taylor facilities and services that she was due as a member of

16   the [HPHA] by . . . failing to accommodate Plaintiff Suzanne Taylor for her disability.” [A 12.]

17   She argues that the HPHA and Graser could and should have left her free to manage her cluttered

18   patio on her own and that, when Graser, Cramp, and Woepperer cleaned up the patio, they

19   discriminated against her by refusing to accommodate her depression by letting her manage her

20   messy patio in her own manner.




                                                       7
 1          The FHA makes it unlawful “[t]o discriminate in the sale or rental, or to otherwise make

 2   unavailable or deny, a dwelling to any buyer or renter because of a handicap.” 42 U.S.C. §

 3   3604(f)(1). The statute requires “that covered entities make reasonable accommodations in order

4    to provide qualified individuals with an equal opportunity to receive benefits from or to

 5   participate in programs run by such entities.” Reg’l Econ. Cmty. Action Program, Inc. v. City of

 6   Middletown, 294 F.3d 35, 45 (2d Cir. 2002). Under the FHA, an entity engages in

 7   discrimination if it refuses to make “reasonable accommodations in rules, policies, practices or

 8   services, when such accommodations may be necessary to afford [a handicapped person] equal

 9   opportunity to use and enjoy a dwelling.” 42 U.S.C. § 3604(f)(3)(B). The statute requires “that

10   changes be made to such traditional rules or practices if necessary to permit a person with

11   handicaps an equal opportunity to use and enjoy a dwelling.” Shapiro v. Cadman Towers, Inc.,

12   51 F.3d 328, 333 (2d Cir. 1995) (quoting H.R. Rep. No. 100-711, at 25 (1988), reprinted in 1988

13   U.S.C.C.A.N. 2173, 2186). A defendant must incur reasonable costs and take modest,

14   affirmative steps to accommodate the handicapped as long as the accommodations sought “do

15   not pose an undue hardship or a substantial burden.” Id. at 335.

16          To make a prima facie showing in support of her failure to accommodate claim, Taylor

17   was required to give the HPHA and Graser an opportunity to accommodate her. See

18   Tsombanidis v. W. Haven Fire Dep’t, 352 F.3d 565, 578 (2d Cir. 2003). The defendants must

19   have had an idea of what accommodation Taylor sought prior to their incurring liability for

20   failing affirmatively to grant a reasonable accommodation. Id. at 579. Here, it is undisputed that

21   Taylor never requested any accommodation. Instead, Taylor conceded at her deposition that she


                                                     8
 1   “didn’t ask for any special accommodations with regard to the patio because they had no

 2   authority to tell me.” [A 104.] Taylor also wrote to DHR, in support of her administrative claim,

 3   that she “never advised the [HPHA] that [she] required special accommodation, because [she]

4    did not need special accommodation.” [A 181.]

5           Taylor’s claim fails even in light of her alleged statement to Graser that her “recovery has

6    to be at [her] own pace and [her] own doing because . . . somebody coming and cleaning out my

 7   patio, sets me back in my recovery.” [A 235] That statement, even if true, was not a request for

 8   relief from any HPHA rules or practices, and therefore was not a request that the defendants

 9   could have granted or denied.

10          Also, as she herself testified, Taylor had repeatedly given Graser and the HPHA

11   permission to clean up her patio. In 2005, Taylor told Graser that Graser could move items,

12   including a barbecue grill, from Taylor’s patio into storage. [A 97, 127.] And in 2008, in the

13   days and weeks leading up to the patio cleaning that precipitated this lawsuit, Taylor told Graser

14   that Graser could put up trellises and curtains to block the view of Taylor’s patio from the

15   community’s main thoroughfare. [A 134.]

16          In addition, it is not clear what rules or practices Taylor could have sought

17   accommodation from. There is no dispute that, at all relevant times, the HPHA had no policy

18   requiring community residents to maintain their patios in an orderly fashion. Taylor suggests

19   that Graser had a policy of “wheedling and cajoling” Taylor to clean her patio. Far from the

20   nefarious conduct that Taylor suggests, however, the record indicates that Taylor’s neighbors

21   acted in what is best described as a neighborly manner. Out of concern for their community’s


                                                      9
 1   appearance, they directly and honestly communicated their concerns and frustrations about

 2   Taylor’s patio. When the patio remained messy, they lent their time and effort to clean it.

 3   Without Taylor’s requesting any accommodation, there was no reason for the defendants or

 4   anyone else to believe that such apparently neighborly conduct might constitute some sort of

 5   discriminatory act, or a harm of any conceivable kind.2

 6          In their cross-appeal, the HPHA and Graser contend that the district court abused its

 7   discretion when it declined to grant their motion for attorneys’ fees and costs. We agree. They

 8   further contend that they have spent significant time and money defending against Taylor’s FHA

 9   claim, which is groundless and frivolous. We again agree.

10          The FHA provides that a district court may, in its discretion, grant attorneys’ fees and

11   costs to the prevailing party in an FHA discrimination case. 42 U.S.C. § 3613(c)(2). Although

12   fees are regularly awarded to prevailing plaintiffs who obtain some significant measure of relief,

13   they are not routinely awarded to prevailing defendants “unless a court finds that his claim was

14   frivolous, unreasonable, or groundless, or that the plaintiff continued to litigate after it clearly

15   became so.” Christiansburg Garment Co., 434 U.S. at 422; see also Panetta v. Crowley, 460

16   F.3d 388, 399 (2d Cir. 2006). A fee award to a prevailing defendant is appropriate only when an

17   action is “‘unreasonable, frivolous, meritless or vexatious.’” Christiansburg Garment Co., 434

18   U.S. at 421 (quoting Carrion v. Yeshiva Univ., 535 F.2d 722, 727 (2d Cir. 1976)). Awarding fees




            2
              We neither hold nor suggest that Taylor’s failure to request an accommodation was the
     only deficiency in her federal claim.


                                                       10
 1   to prevailing defendants under such circumstances “protect[s] defendants from burdensome

 2   litigation having no legal or factual basis.” Id. at 420.

 3           The district court determined that Taylor’s claim was not entirely unreasonable or

 4   without foundation and, accordingly, the defendants were not entitled to a fee award.

 5   Specifically, the court wrote that Taylor “articulated a reasonable basis for her belief that Ms.

 6   Graser knew or should have known about [Taylor’s] disability, and should have accommodated

 7   her disability by honoring her request to be allowed to recover at her own pace without outside

 8   interference.” Taylor, 2011 WL 1792766, at *3. [SPA 19.] As discussed above, however, the

 9   record is pellucid that Taylor never requested an accommodation, and therefore the district court

10   was incorrect to criticize the defendants for failing to make one. Even if Graser knew of

11   Taylor’s disability, there simply was no way to provide relief from, or an exception to, an HPHA

12   policy that did not exist. For that reason, Taylor’s claim is meritless. To be clear, by “meritless”

13   we mean “groundless or without foundation,” and not merely that Taylor ultimately lost her case.

14   Christiansburg Garment Co., 434 U.S. at 421.

15           In addition, our Court has recognized that, even if a prior proceeding has no preclusive

16   effect, the slate still may not be clean. “[I]n view of the failure of . . . previous litigation,” a

17   plaintiff raising “substantially the same charges” is aware of the possibility that her claim lacks

18   merit and that an award of counsel fees to her adversary may be warranted. Carrion, 535 F.2d at

19   728. Here, the baseless nature of Taylor’s claim is reinforced by the DHR decision dismissing

20   her administrative complaint. As previously noted, DHR determined that there was no probable

21   cause to support Taylor’s housing discrimination claim and that there was no evidence to support


                                                        11
1    a finding that Taylor is disabled, that her messy porch was related to any disability, or that she

 2   requested any accommodation. [A 19-20.] While these conclusions did not preclude further

 3   litigation, the full extent of legal and factual shortcomings laid bare in the administrative

 4   proceedings should have been a powerful clue to Taylor, a licensed attorney, that her case had no

 5   merit. Furthermore, the fact that Taylor told DHR in writing that she never requested and did

 6   not need any special accommodation from the HPHA [A 181] should have been an even more

 7   potent signal to her that proceeding with a federal failure to accommodate claim was improper.

 8   Nevertheless, Taylor continued to pursue the claim.

 9                                                *    *    *

10          For these reasons, and those articulated above, we conclude that the claim was manifestly

11   without merit and that an award of counsel fees to the defendants is appropriate. We remand to

12   the district court to determine the proper amount of that award.

13                                             CONCLUSION

14          Taylor’s appeal is DISMISSED. On the cross-appeal, the order of the district court

15   denying attorneys’ fees is REVERSED and the case is REMANDED for further proceedings

16   consistent with this opinion.




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