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FAIR HOUS. COUNCIL OF SUBURBAN PHILADELPHIA v. BOY

November 14, 1996

THE FAIR HOUSING COUNCIL OF SUBURBAN PHILADELPHIA Plaintiff,
v.
BOYERTOWN AREA TIMES, et al., Defendants.



The opinion of the court was delivered by: JOYNER

 Joyner, J.

 November 14, 1996

 INTRODUCTION

 In this federal question action, plaintiff Fair Housing Council of Suburban Philadelphia, (the "Fair Housing Council" ), an organization committed to the promotion of the equal availability of housing, has asserted a claim against various defendants, including Herb and Doaty Realtors, ("Herb and Doaty"), and Greg Herb, owner of Herb and Doaty. Plaintiff alleges that Herb and Doaty and Greg Herb violated the Fair Housing Act of 1968, ("Fair Housing Act") as codified at 42 U.S.C. § 3601 et seq., by placing an advertisement that was allegedly discriminatory to families with children in the Boyertown Area Times newspaper. Plaintiff also claims that defendants' actions violated the Pennsylvania Human Relations Act, as codified at 43 Pa. Stat. Ann. § 955 et seq.

 Defendants Herb and Doaty and Greg Herb have jointly filed a motion to dismiss for failure to state a claim upon which relief may be granted, pursuant to Fed. R. Civ. P. 12(b)(6). Defendants allege that the Fair Housing Council does not have standing to litigate this matter under the Fair Housing Act.

 We hold that the Fair Housing Council has standing to assert claims against defendants for injuries to itself, but does not have standing to assert claims on behalf of its members. Accordingly, defendants' motion to dismiss is granted in part and denied in part.

 BACKGROUND

 Defendants Herb and Doaty and Greg Herb claim that plaintiff lacks standing to litigate these claims under the Fair Housing Act. Defendants also claim that the advertisement was not discriminatory, that it did not result in discrimination, and that plaintiff has not alleged that anyone responded to the advertisement. Finally, defendants argue that the advertisement is no longer in the newspaper and therefore, the issue is moot.

 DISCUSSION

 When considering a motion to dismiss pursuant to Rule 12 (b)(6), the complaint's allegations must be construed in the light most favorable to the plaintiff. The court must accept as true all of the plaintiff's factual allegations and draw all reasonable inferences from them. Schrob v. Catterson, 948 F.2d 1402, 1405 (3d Cir. 1991). Thus, the court will grant a Rule 12(b)(6) motion only if the facts and reasonable inferences therefrom are legally insufficient and it is clear that the plaintiff cannot prove any facts upon which relief could be granted. Commonwealth ex. Rel. Zimmerman v. Pepsico, Inc., 836 F.2d 173, 175 (3d Cir. 1988). The court will apply this standard below.

 The Fair Housing Act prohibits housing discrimination. 42 U.S.C. §§ 3601 et seq (West 1994 & Supp. 1996). Section 3604 governs discrimination in the sale or rental of housing. Section 3604 (c) makes it illegal to "make, print, publish, or cause to be made, printed or published any notice, statement, or advertisement that indicates a preference, limitation or discrimination based on race, color, religion, sex, handicap, familial status, or national origin, or an intention to make any such preference, limitation, or discrimination." 42 U.S.C. § 3604(c).

 The Supreme Court has held that an organization dedicated to the promotion of fair housing has standing to litigate fair housing claims if it alleges that defendants' discriminatory acts caused a drain on the plaintiff organization's resources when the plaintiff had to counteract defendants' discriminatory actions. Havens Realty Corp. v. Coleman, 455 U.S. 363, 379, 71 L. Ed. 2d 214, 102 S. Ct. 1114 (1982). See also Gaskin v. Commonwealth of Pennsylvania, 1995 U.S. Dist. LEXIS 4272, 1995 WL 154801, *1 (E.D.Pa. 1995); Kessler Institute for Rehabilitation Inc. v. Mayor and Council of Borough of Essex Fells, 876 F. Supp. 641, 656 (D.N.J. 1995); Raver v. Capitol Area Transit, 887 F. Supp. 96, 98 (M.D.Pa. 1995). The Supreme Court noted that even though the organization would obviously have to prove at trial that it was impaired in its attempt to promote the availability of open housing, the district court erred when it dismissed the case for lack of standing and held that a ...


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