2d Cir. closes the door on Fair Housing Act case

This Fair Housing Act case alleges that the Town of Milan, Dutchess County, denied a developer certain entitlements because she is Hispanic. The Court of Appeals doesn't see it that way.

The case is McCulloch v. Town of Milan, a summary order decided on March 25. I have little understanding of what happened in this case. The extensive district court docket tells me very little, as there is no written decision explaining why the case was dismissed on summary judgment. It looks like plaintiff wanted to build a subdivision in the Town. There was a heated board meeting over this. The board did plaintiff wrong, and she sues under the FHA, which requires the plaintiff to "present evidence that animus against the protected group was a significant factor in the position taken by the municipal decisionmakers themselves or by those to whom the decisionmakers were knowingly responsive." But as the Court of Appeals (Jacobs, Pooler and Reiss [D.J.]) writes:

McCulloch presents no evidence from which a reasonable jury could find that the Defendants harbored animus against Hispanics, or that animus played a role in the restrictions imposed on McCulloch’s subdivision. McCulloch never met the Defendants; her interests were represented throughout the approval process by her husband, who is not Hispanic. McCulloch responds by arguing, among other things, that a subdivision driveway was labeled (by McCulloch) as the “Otero” driveway, that “Otero” is clearly a Hispanic surname, and that an unidentified non-Defendant made a negative comment at a public meeting about “city people.” None of these contentions gives rise to a genuine dispute that the Defendants actually knew that McCulloch was Hispanic and discriminated against her for that reason.

When the case ended, defendants moved for attorneys' fees against the plaintiff. This is always an uphill battle. The law requires that the case be totally and completely frivolous for the court to award the defendants attorneys fees, which can amount to hundreds of thousands of dollars. While the district court denied the fee application (a ruling that defendants do not appeal), it noted the rancorous nature of this litigation:

As all parties are aware, this case has not been litigated by either side in a way the Court would characterize as a cooperative, efficient, or considerate manner. This case has been fraught with delay since its inception, due in large part to one or the other or both of the parties’ not complying with directions of the Court or to each party’s general wish to make the other’s tasks as difficult as possible.

A motion for attorneys' fees only makes the litigation more heated. The district court denies fees for a variety of reasons: (1) "Defendants’ briefs are just that—brief—and rely heavily on the declaration of the Town’s attorney, Terry Rice, who outlines the evidentiary flaws in Plaintiff’s case instead of providing a considered legal basis for an award"; (2) "Defendants failed to provide billing statements and contemporaneous time records to Plaintiff and the Court until a conference was held and they were instructed to do so despite making various privilege and hardship arguments. When those records were provided, they were missing entries for several time periods, including the time period preceding the motion to dismiss"); (3) "The ... claims, by the very fact that they survived a motion to dismiss, do not rise to the level of being 'frivolous' such that an award pursuant to Section 1988 is available."