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LEE v. MINNOCK

August 5, 1976

OTIS LEE, JR., Plaintiff
v.
PATRICK MINNOCK and MINNOCK CONSTRUCTION COMPANY, Defendants


Cohill, J.


The opinion of the court was delivered by: COHILL

This case comes before the court on Defendants' Motion for Judgment on the Pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, which states:

 
"After the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings. If on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56."

 As will be seen, matters outside the pleadings have been presented to and not excluded by the court in this case; this motion, therefore, will be treated as one for summary judgment under Rule 56.

 We will grant the motion.

 Plaintiff, a tenant of the defendant landlords, alleged in his complaint that the defendants "caused gases, fumes, and noxious vapors to come up through the heating plant" into his apartment. He alleged that the landlords were doing this intentionally "for the sole purpose of forcing the plaintiff from premise" because plaintiff "is a negro and a male nurse."

 The plaintiff alleged that defendants' conduct violated the Civil Rights Act of 1866 ("Civil Rights Act") and the Fair Housing Act of 1968 ("Fair Housing Act").

 The Civil Rights Act states:

 
"All citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold and convey real and personal property." Act of April 9, 1866, c.31, Section 1, 14 Stat. 27, 42 U.S.C. Section 1982.

 The Fair Housing Act provides in part that it shall be unlawful:

 
"(a) To refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate for sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex or national origin.
 
(b) To discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of race, color, religion, sex, or national origin."
 
As amended Pub. L. 93-383, Title VIII, Section 808 (b) (i), Aug. 22, 1974, 88 Stat. 729, 42 U.S.C. Section 3604.

 Defendants generally denied the allegations of the complaint in their answer and, in a counterclaim, sought to recover rent they claimed plaintiff owed and a judgment evicting plaintiff from the premises.

 In an Opinion dated December 15, 1975, Judge Ralph Scalera, formerly of this court, considered the motion of defendants for a default judgment under Rule 55 of the Federal Rules of Civil Procedure and the motions of plaintiff for a Temporary Restraining Order against defendants and for a jury trial. All three of the motions were denied, except that plaintiff was given ten days to file "appropriate material setting forth reasons to account for the untimely filing of his demand" for a jury trial, and defendants were given ten days to file ...


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