Alexander v. Riga Appeal from Judgment of the Western District of Pennsylvania

    Timothy P. O’Brien
Attorney-at-Law

1705 Allegheny Building 
429 Forbes Avenue

Pittsburgh, Pennsylvania 15219
(412) 232-4400 
(412) 232-3730 FAX 
E-Mail: tpob@icubed.com

June 14, 1999

Steven Ralston, Esquire 
NAACP Legal Defense Fund 
Suite 1600 
New York, NY 10013

Re: Alexander, et. al. v. Riga
No. 98-3597

Dear Mr. Ralston:

Enclosed herewith please find a copy of the appellants’ brief filed with the 
Commonwealth Court on May 27, 1999 for your records.

Please let me know if you have any questions whatsoever regarding the above or 
the enclosed.

Very truly yours,

Timothy P/O’Brien 
Attorney at Law

TOB/sis
Enclosure
cc: Caroline Mitchell, Esquire (w. enc.)

mailto:tpob@icubed.com


UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

No. 98-3597

Ronald Alexander, Faye Alexander, and 
Fair Housing Partnership of Greater Pittsburgh, Inc.

Appellants

Joseph and Maria Riga,

Appellees

(W.D. Pa. Civ. 96-0049)

Appeal From Judgment of the United States 
District Court for the Western District of 

Pennsylvania in Favor of Defendants Dated October 8, 1998

Caroline Mitchell, Esquire 
PA I.D . #18601 
3700 Gulf Tower 
707 Grant Street 
Pittsburgh, PA 15219-1913 
(412) 232-3131

Timothy P. O'Brien, Esquire 
PA I.D. #22104 
1705 Allegheny Building 
429 Forbes Avenue 
Pittsburgh, PA 15219 
(412) 232-4400



TABLE OF CONTENTS
Table of C i t e s .................................. i-iv

Table of A u t h o r i t i e s .............................. v-vi

I. Statement of Subject Matter and
Appellate Jurisdiction ..............................  1

II. Statement of Questions Presented ...................  2
III. Statement of the C a s e .................................3-6

IV. Statement of F a c t s ............................... 6-11

V. Statement of Related Cases ........................ 11

VI. Standard of Review ...................  . . . . .  12-13
VII. Summary of Argument................................13-15
VIII. A r g u m e n t .............................................. ..

I. Punitive Damages Are Awardable without a
Prerequisite Finding of Actual Damages . . . 15-16

A. Title VIII's Plain Language Does Not 
Require Actual Damages as A Condition
for Punitive Damages .   16-17

B. The Legislative History Does Not 
Discuss Actual Damages as a Prerequisite
to Punitive Damages ......................17-18

C. The Remedial Purpose of Title VIII is
Not Served By Narrow Limitations on 
Punitive Damages .....................  18-19

2. Federal Civil Rights Law Permits An 
Award Of Punitive Damages Without
Actual Damages .......................  19-21

3. A Managerial Agent's Direct 
Liability for Punitive Damages For
Bar Own Discrimination.................21-23

4. Vicarious Liability of Husband 
as Principal For Managerial 
Acts of Landlord-wife as Agent

23-24



II. Plain Error in Instructing The Jury That Legal 
Harm and 'Insubstantial' Actual Damages Are 
Prerequisite for an Award of Nominal Damages 24-29

B. Cases Awarding Nominal Damages 
to Recognize Violations of
Federal Civil Rights . ................29-31

C. Since Fair Housing Rights are 
“Fundamental”, The Lower Court 
Erred In Denying Nominal
Damages................................ 31-33

III. Plaintiffs, Whose Damages Testimony Was 
Uncontradicted, Are Entitled to an
Award of Compensatory . . . ................33-37

IV. The Plaintiffs Are Entitled to
Injunctive, and Declaratory Relief Based 
upon the Jury's Finding of Unlawful
Discrimination ..............................  37-40

A. The Denial of Injunctive and 
Declaratory Relief to 
Plaintiffs was an Abuse of 
Discretion not Supported by
any Waiver of R e c o r d ...................40-42

V. Refusal to Admit Evidence of Landlord's
Discrimination to Other Blacks is Abuse Of 
Discretion....................................42-44

VI. The Trial Court Abused its Discretion by
Denial of Costs to Plaintiffs, as Prevailing 
Parties . . . . .    44-47

IX. Conclusion . . . . .    47

X. Certificate of Bar Membership........................vii

XI. Disclosure of Corporate Affiliations
and Financial Interest .......................... viii

XII. District Court Final Order and Opinion ........... ix

XIII. Judgment Order . . . . .  ............................ x
XIV. Certificate of S e r v i c e ............................... xi

XV. Certificate of Compliance ............................ xii



TABLE OF CITES
Asbury v Brougham
866 F-2 d 1276 (10th Cir. 1 9 8 9 ) ........................ 24

Atlantic & Gulf Stevedores, Inc. v. Ellerman Lines, Ltd., 
369 U.S. 355, 364, 7 L. Ed. 2d 798,
82 S. Ct. 780 (1962) .................................. 37

Banai v. Sec'y U.S. Dep. of Housing
102 F . 3d 1203 (11th Cir. 1997) ........................ 38
Basista v. Weir
340 F . 2d at 87 (3d Cir. 1 9 6 5 ) .....................  20, 25
Bennett v. Spear
137 L. Ed. 2d 281, 117 S. Ct. 1154, 1166 (1997) . . . .  17
Caban-Wheeler v. Elsea,
71 F.3d 837, 840 (11th Cir. 1996) .....................  31
Cabrera v Jakabovitz
24 F . 3d 372. (2nd Cir 1 9 9 4 ) ............................ 30
Carey v. Piphus
435 U.S. 247, 266-67, 98 S. Ct. 1042
1054, 55 L. Ed. 2d 252 (1978)............. 25, 26, 27, 28

Clients' Council v. Pierce
711 F.2d 1406 (8th Cir. 1993) ..........................  38

Civil Rights Cases, 109 U.S. 3, 22-23 (1876)
Id. at 22-23 ........................................... 32

Curtis v. Loether, 415 U.S. 189, 39 L Ed 2d 260
94 S.Ct 1005 (1974)................................  17, 34

Czurlanis v. Albanese
721 F . 2d 98, 107 (3d Cir. 1 9 8 3 ) .......................  25
Delta Air Lines, Inc. v. August 
450 U.S. 346, 352, 67 L. Ed. 2d 287
101 S. Ct. 1146 (1981) ................................  46

Dillon v AFBIC Development Corp.
597 F.2d 556, (5th Cir. 1 9 7 9 ) .......................... 22
Erwin v. Manitowoc County
872 F . 2d 1292, 1299 (7th Cir. 1 9 8 9 ) ............. 20

1



Faragher v. City of Boca Raton
524 U.S. 775, 141 L. Ed. 2d 662 at 690 30

Farrar v. Cain
756 F . 2d 1148 (5th Cir. 1 9 8 5 ) .......... ............... 29
Fassett v. Haeckel
936 F.2d 118 (2nd Cir. 1991) ..........................29

Fountila v. Carter
571 F . 2d 487 (9th Cir. 1978) .......................... 22
Gibeau v. Ellis
18 F . 3d 107 (2nd Cir. 1 9 9 4 ) ............................  29

Gudenkauf v. Stauffer Communications, Inc.
158 F . 3d 1074 (10th Cir. 1998) ........................ 31
Gunby v. Pa. Electric Co.
840 F . 2d 1108 (3rd Cir. 1988)at 42 USC 1 9 8 1 ...........40

Gautreaux v. Chicago Housing Authority
690 F . 2d 601 (7th Cir. 1982) .......................... 38
Havens Realty Corp. v. Coleman 
455 U.S. 363, 71 L. Ed. 2d 214,
102 S. Ct. 1114 (1982) ................................  20

Hennessy v. Penril Datacomm Networks, Inc.
69 F . 3d 1344 (7th Cir. 1995) .......................... 21
Hogg v. Emerson
47 U. S. 437, 12 L. Ed 505, 6. How. 437 (1846) . . . .  32
Johnson v. Hale,
13 F . 3d 1351, (9th Cir. 1 9 9 5 ) ................. .. . 35, 37
Johnson v. Hale
940 F . 2d 1192 (9th Cir. 1 9 9 2 ) ..........................37

Jones v. Alfred H. Mayer Co.
392 U.S. 409

La Blanc Sternberg v. Fletcher
67 F.3d 412 (2nd Cir. 1 9 9 8 ) ............................ 30

Lebow v. American Trans Air, Inc.
86 F . 3d 661,669 n.ll (7th Cir. 1996) .................  21
Link v. Mercedes-Benz of North America, Inc.
788 F .2d 918, 921 (3d Cir. 1986) ........................

ii



Marable v. Walker
704 F .2d 1219 (11th Cir. 1983) 38
Meyer v. Pennypack Woods
559 F . 2d 894 (3d Cir. 1 9 7 7 ) ............................ 43

Miller v Apartments & Homes, Inc.
646 F2d 101 (3d Cir. 1981) ............................21

National Credit Union Admin, v. First Nat'1 
Bank & Trust Co.
140 L. Ed. 2d 1, 118 S. Ct. 927, 938-40 (1998) . . . .  17

New Jersey Coalition of Rooming & Boarding House 
Owners v. Mayor of Asbury Park
152 F.3d 217 (3d Cir. N.J. 1998) ............. 35, 36, 46
Norwood Lumber Co. v. McKean
153 F.2d 753 (3d Cir. 1 9 4 6 ) ............................33

Open Housing Center v. Jakabovitz
24 F . 3d 372, 380 (2nd Cir. 1994) .....................  23
Patterson v PHP Health Care
90 F . 3d 927 (5th 1996) ................................  30

Phiffer v. Proud Parrot Motel
648 F . 2d 548, 552 (9th Cir. 1 9 8 0 ) .....................  22
Portee v. Hastava
853 F.Supp. 597 (E.D. N.Y. 1994) .....................  23

Public Interest Research Group of N.J., Inc. v. Windall 
51 P .3d 1179, 1185 (3d Cir. 1995) ..........................

Ragin v. Harry Macklowe Real Estate Co.
801 F. Supp. 1213 (S. D. N. Y. 1992) .................  23

Rogers v. Loether
467 F . 2d 1110, (7th Cir. 1972) .......................  19
Sahagian v. Dickey
827 F . 2d 90, 100 (7th Cir. 1987) .....................  22
Seaton V. Sky Realty Co.
491 F . 2d 634(1974 CA7 III) ............................23
Sanborn v. Wagner
354 F. Supp. 291 (D.C. Md. 1976) .....................  22

iii



Shea vs. Galaxie Lumber Co.
152 F. 3d 729 (7th Cir. 1998) ........................ 21

Smith v. Wade
461 U.S. 30, 75 L. Ed. 2d 632,
103 S. Ct. 1625 (1983) ................................  21

Story Parchment Co. v. Paterson Parchment Paper Co.
282 S Ct. 555, 51 S. Ct. 248, 75 L. Ed. 544 (1931) . . 33
Timm v. Progressive Steel Treating, Inc.
137 F . 3d 1008 (7th Cir. 1 9 9 8 ) .......................... 21

Traficante v. Metropolitan Life Ins Co.
409 U.S. 205, 211, 34 L. Ed. 2d 415
93 S. Ct. 364 (1972) ..................................  18

Tyus v. Urban Search Management
102 F . 3d 256, 266 (7th Cir. 1 9 9 6 ) .....................  20

U.S. v. City of Hayward
36 F . 3d at 832 .........................................34

Walker v. Anderson Electrical Connectors 
944 F .2d 841, 844-45 (11th Cir. 1991)
cert, denied, 122 L.Ed. 2d 352, 113 S. Ct. 1043 (1993) 31

Walker v. Crigler
976 F. 2d 900, 904 (4th Cir. 1992) ...................  15
Walker v. Fox
395 F. Supp. 1303, (1975, SD Ohio) ................... 23
Woods-Drake v. Lundy
667 F . 2d 1198 (5th Cir, 1 9 8 2 ) .......................  22,34
U.S. v. Hunter
459 F . 2d 205 (4th Cir. 1972) .......................... 39

iv



TABLE OF STATUTES AND AUTHORITIES

28 U.S.C. 1291     1

28 U.S.C. 1343(a)   1

28 U.S.C. 1343  1

42 U.S.C 1981,1982
The Civil Rights Act of 1866 .................................. 3

42 U.S.C. 2000
Title VII of the Civil Rights Act of 1964,
as amended 1991,42 U.S.C.1981a ..............................  20

42 U.S.C. 3601 et. seq.,
The Fair Housing Act of 1968, 
as amended, 1988

42 U.S.C. 3601 ......................................  1,2,16

42 U.S.C. 3 6 1 2 ...................................... 16, 18

42 U.S.C. 3613 ..................................  18, 33, 46

AUTHORITIES
Black's Law Dictionary, 351-52 (1979)   28

Dobbs, Law of Remedies @ 3.8, pp. 191-193 (1973) ........... 24

James A. Kushner, Fair Housing 9 4.22 at 2SS (1983) ........  16

C. McCormick, Law of Damages Sec. 20-22 (1935)............. 25
5(a) J. Moore and T. Lucas, Moore's Federal Practice,
sec.51.04 N. 3 (1980)......................................... 26
W. Prosser, Law of Torts 9-10 (4th Ed. 1971) ............... 19

Restatement of the Law, Agency (Second) Sec. 214
comment A ........................................................ 16
Restatement of the Law, Agency (Second) Sec. 217 C . . 1, 13, 24

v



Restatement of the Law of Torts, Sec. 909 (1939) ........... 16

B. Schwartz, Statutory History of the United States 
p. 1690(1970).................................................  18

N. Webster, NEW WEBSTER'S DICTIONARY OF THE
ENGLISH LANGUAGE, at p. 12 (1981 E d . ) ........................28

9 C. Wright and A. Miller, Federal Practice and
Procedure at 2253 (1971) .......... .........................  26

HEARINGS

Hearings on S.3296, 89th Cong. 2nd Sess.
Hearings on Civil Rights Proposals, (1996) .................  17

Hearings on H.R. 15171, Hearings on Miscellaneous Proposals 
Regarding Civil Rights before Subcommittee No. 5 of the House 
Committee on the Judiciary, 89th Cong. 2d Sess.
ser. 16, p. 1183 (1966)....................................... 17

vi



I . STATEMENT OF SUBJECT MATTER AND APPELLATE JURISDICTION.

1. The district court has subject matter jurisdiction over 

this action pursuant to the Fair Housing Act of 1968, as amended, 

42 U.S.C. § 3601, et. seq., and pursuant to 28 U.S.C. § 1331, and 
1343 (a) (4) .

2. This court has appellate jurisdiction pursuant to 28 

U.S.C. § 1291 inasmuch as this is an appeal from a final decision 
of the district court.

II. STATEMENT OF QUESTIONS PRESENTED

1. Is an award of actual damages a necessary prerequisite 

for an award of punitive damages to a victim whose rights under 

the Fair Housing Act have been violated by a landlord? (answered 
in the affirmative by the court below)

2. Can the owner of property whose managerial agent 

recklessly violated the principal's non-delegable duty not to 
racially discriminate under the Fair Housing Act be held 

vicariously liable for punitive damages under 217 (c) Restatement 

of Agency 2nd(c)? (answered in the negative by the court below)

3. Did the lower court err in refusing to enter an award 
of nominal damages as a matter of law in favor of each party 
whose rights under the Fair Housing Act were violated? (answered 
in the negative by the court below)

4. Is it plain error for the lower court to have 
instructed the jury that it could award nominal damages for 

housing discrimination under the Fair Housing Act only if the 
jury first found “insubstantial” actual damages and legal harm,



caused by the discrimination? (answered in the negative by the 
court below)

5. Did the lower court abuse its discretion in refusing 
to grant a new trial, or additur of actual damages, for 

violations of applicants' rights under the Fair Housing Act, 

where evidence of damages was uncontroverted? (answered in the 
negative by the court below)

6. Where the jury returned special verdicts finding 

victims’ rights to have been violated did the lower court abuse 

its discretion in refusing to enter a declaratory judgment in 

favor of each victim and instead entering judgment for Landlords? 
(answered in the negative).

7. Where the jury returned special verdicts finding 

applicants' rights under the Fair Housing Act to have been 

violated, did the lower court abuse its discretion in refusing to 
hold a hearing or order injunctive relief against Landlords? 
(answered in the negative by the court below)

8. Did the lower court abuse its discretion in refusing 

to award costs to victims as prevailing parties, where the jury 

returned special verdicts finding victims' rights under the Fair 

Housing Act to have been violated? (answered in the negative by 
the court below)

9. Did the lower court abuse its discretion in refusing 
to admit the testimony of an eyewitness who personally observed 

Landlord discriminating against other black applicants? (answered

2



in the negative by the court below).

III. STATEMENT OF THE CARE

Ronald Alexander and Faye Alexander, both African-American, 

and the Fair Housing Partnership of Greater Pittsburgh Inc.

(FHP) filed suit for race discrimination against Joseph and Maria 

Riga, husband and wife, as Landlords and owners of residential 

apartment buildings in the City of Pittsburgh. The Amended 

Complaint (A22) alleged that Landlords-wife, on account of the 

Alexanders' race, repeatedly and intentionally lied to the 

Alexanders in September and October, 1995, and falsely informed 

the Alexanders that an advertised apartment unit owned by the 

Landlords was not available for rent. Landlord refused to deal 

with black applicants, and lied to them, and falsely claimed the 
unit was unavailable. The suit was timely filed alleging 

violations of the Fair Housing Act of 1968, as amended, 42 U.S.C.

§ 3601, et seq., and the Civil Rights Act of 1866, as amended, 42 

U.S.C. § 1981 and 1982. The lower court denied the Landlords' 

Motion for Summary Judgment, concluding that material issues of 

fact existed as to the Landlords' refusal to deal with blacks, 
and lies to them, and that the FHP, as a matter of law, had 

standing to sue Landlords because of Landlords' treatment of 
FHP's black tester. The lower court found standing based on the 

FHP's investigation of Ronald Alexander's complaint, and its 

diversion of resources to combat the Landlords' discriminatory 
conduct. (A13 2)

3



An eight day jury trial was commenced on May 13, 1998. The 

jury returned Special Verdicts (A917) on May 27, 1998, finding 

that: 1) the Rigas discriminated against Ronald and Faye 

Alexander on the basis of race, in violation of the Fair Housing 

Act1; 2) that the Rigas' discriminatory conduct was not the 

“legal cause” of harm to the Alexanders; 3) that the Rigas' 

racially discriminatory conduct was the “legal cause” of harm to 

the FHP. The jury awarded neither compensatory nor nominal 

damages to any appellant (A902-905). The court refused to submit 

punitive damages to the jury, and granted Landlords' Motion for 

Judgment as a matter of law as to Landlord-husband on punitive 

damages (A657-660). After the jury returned a zero damages 

verdict, the court refused to submit punitive damages to the jury 

against Landlord-wife (A907). Plaintiffs' request after the 
verdict was returned that the court direct the jury to award 

nominal damages was also denied (A905). Plaintiffs' post-trial 

motions for judgment as a matter of law for nominal, 

compensatory, exemplary damages and costs, and a new trial on 
punitive damages were denied (A921,940,926).

Plaintiffs requested an award of nominal damages (A853).
The lower court's instruction to the jury on nominal damages 
stated:

1

The case was submitted to the jury on the Fair Housing claim only; 
the Plaintiffs expressly withdrew the claims under the Civil Rights 
Act of 1866, as amended, 42 U.S.C. § 1981-81 at the time of trial.

4



“Finally, in connection with the issue of 
damages, if you find that the Plaintiffs are 
entitled to verdicts in their favor in 
accordance with these instructions, but you 
do not find that the Plaintiffs have 
sustained substantial actual damages, then 
you may return a verdict for the Plaintiffs 
in some nominal sum, such as one dollar, on 
account of actual damages.” (A887).

There was no special interrogatory in the “Special Verdict” 
form submitted to the jury for the award of nominal damages. 

(A917-920). On the form, the jury was told to skip damages 
entirely unless it had found “legal harm” to a Plaintiff. The 

jury found Maria Riga discriminated against each Plaintiff in 

violation of the Fair Housing Act. Despite the “Special 

Verdicts”, the lower court, on May 27, 1998 entered judgment in 

favor of Joseph and Maria Riga, and against the Alexanders and 

the FHP. Plaintiffs' motions to tax costs in their favor as 

prevailing parties (A921) and for attorney's fees (A935) and for 
injunctive and equitable relief was denied (A931,939).

In a Memorandum Order and Opinion, dated October 9,

1998,(A940) the lower court denied the Alexanders' and the FHP's 
post-trial motions, and refused to tax costs against Landlords, 

or award attorney's fees to Plaintiffs. The court also denied 
the Landlords' motion to tax costs against the Plaintiffs. The 

lower court, however, granted the FHP's Rule 60 and 59(e) motion 

to vacate its entry of judgment in favor of the Landlords against 
FHP, and entered judgment in favor of the FHP, and against the 

Landlords as to liability under the Fair Housing Act, but refused

5



to tax costs in favor of FHP (A939).

IV. STATEMENT OF FACTS

From September. 17, 1995 to November 7, 1995, Landlords 

Joseph and Maria Riga, husband and wife, placed Sunday newspaper 

ads advertising an apartment for rent in their building at 5839 

Darlington Rd., Squirrel Hill, Pittsburgh PA. (A19 0,1036-1041,

Ex. 2A-2H, ads 9/17, 9/24, 10/1, 10/8, 10/15, 10/23, 10/30, 

11/7/95) The ad listed 963-8706, Landlords' phone number 

(A190,1000). Landlord-wife was manager of the apartments, (A763) 

handled the rent, (A1003-08) and was responsible for showing and 

leasing 50 to 100 apartments owned by them (A725,1009, 1038- 
1042) .

From September 17, 1995 through October 8, 1995, on ten 

separate occasions, Ronald Alexander and his wife Faye, African- 

Americans, inquired about the apartment in the ad. They were 

falsely told by Landlord-wife it was unavailable, and were denied 

a view; their phone calls were not returned. Daria Mitchell, a 
black, was falsely told the apartment had been rented and 

thereafter Landlord-wife refused to call Mitchell (A 777-779).

From September 18th to October 9, 1995 on ten separate 
occasions, Landlord-wife truthfully told whites Robin McDonough A 

402, Jeff Lang (A356,357j Dennis Orvosh (A448,450) and Heidi

Sestrich (A432,435) that the apartment was available, and allowed

each a view; their phone calls were returned (A342,432,435).

Faye Alexander set up an appointment after reading the

6



ad of 9/17(Ex.2A). On Monday September 18, 1995 Ronald Alexander 

and Faye Alexander were lied to in person by Landlord-wife who 

falsely told them that “they had just missed” the apartment; she 

refused to show it to them (A367-377). When the same ad(Ex.2B) 

appeared 9/24/95, Ronald asked his friend Robin McDonough to 

call; Robin was told on 9/26/95 that the unit was available 

(A20 2- 2 05) . Using a different name “James Irwin”, Ronald 

arranged to see the unit Friday September 29, 1995 and called 

twice to confirm his appointment. (Cell Phone Records, Ex. 17). 

When he met Landlord-wife at the building, she falsely stated she 

had forgotten her keys, and could not show him the apartment, as 

her hand covered up her keys (A392) . He “couldn't believe it, it 

made him angry; he thought she was lying” (A392) . When he 

asked to reschedule, Landlord-wife said he could call her. A.385- 
395) . He was feeling “a little bit too sick to say anything 

else...” (A393) . He walked away, then turned around and saw her 

entering the building (A394). He called to reschedule, and left 
messages, but never received a call back on Friday 9/29 or 

Saturday 9/30 (A394-395). On 9/29, Mr. Alexander complained

about Landlord-wife to Fair Housing Partnership, “FHP” (A228).
FHP is an independent non-profit organization (A46)whose object 

and mission is to eliminate housing discrimination through 

programs for education, outreach, testing and enforcement (A48). 
Testing involves sending a black tester and a white tester out to 
the same landlord to find out what information is given about an

7



apartment. Based on how each testers is treated , FHP can 

determine whether racial discrimination took place (A54,55). FHP 

assigned two testers, black female Daria Mitchell and white male 
Dennis Orvosh, to call Landlords (A67).

Dennis Orvosh received a call from Landlord-wife at 4:00 p.m. on 

9/29 and scheduled an appointment with her to see the apartment, 

Saturday 9/30 at 11:00 o'clock. (Ex. 20, Orvosh Telephone Test 9- 
29-95)(A264). He was shown the apartment and told it was 

available (A265,268). Jeff Lang, a white, was retained to 

conduct a test for the Alexanders by attorney Caroline Mitchell 

(A13 9,14 0) . He was shown the vacant apartment on Saturday 

9/30/95 by Landlord-wife, who told him it was available and 

requested his phone number, which he wrote on a paper. Lang did 

not fill out an application(A350-359). As Lang saw a black,

Daria Mitchell approaching, Landlord-wife rolled her eyes, 

grimaced and stated “this woman is driving me up a wall” (A3 64- 

368) . Landlord-wife treated Mitchell “with disgust”; which Lang 

believed was racially motivated(A392,393). Lang submitted a bill 
for $135.30 for his services (A374).

Daria Mitchell, the black tester for FHP, set up an 

appointment by telephone(A478-483) on 9/29 with Landlord-wife to 
see the apartment on Saturday 9/30/95, but was given only 3 

digits of the 4-digit street address and the false name “Maria 
Agnotti” by Landlord-wife (A485,486). Mitchell was late due to 
the incorrect address, and rescheduled for 5:30 pm. When she

8



appeared at the building, Landlord-wife (whose maiden name is 

Agnotti)(A1853-55) told Mitchell that “Jeff” filled out an 

application (A490) and wife "did not really seem like she wanted 

to show me the apartment" (A301,304,490-493). Daria asked "was 

Jeff going to get the apartment”? Landlord-wife said yes and 

showed a piece of paper acting like that was his application fee 

deposit. Wife then stated "that she had my number and if 

anything became available she would give me a call"; Landlord- 

wife never called and stated that the apartment was still 

available (A494-495).
On Sunday 10/1, Ron Alexander, having received no return 

phone calls from Landlord-wife, and seeing the same ad(Ex. 2C) 

called and spoke to Landlord-wife who told him the unit was 

unavailable but promised to call him if space became available. 

A560-564). He told Faye who then called and was also told the 

unit was unavailable (A 191-195). Ronald continued to inquire on 

10/3 and 10/4 his phone calls were not returned (A 563-567) .
Mr. Orvosh called on 10/2 to set up another appointment to 

see the place and received an appointment for 10/3. (P. Ex. 7,

Orvosh Report Oct. 221, 1995 (A453-456). He called on 10/3 to

cancel his appointment and was told by Landlord-wife that the 

apartment was available. (Ex. 21 Orvosh Report Oct. 3, 1995 

(A457-462).
On 10/5, at 10 am 11 am and 12:15 pm ,Ron Alexander left 

messages at 963-8706 about the apartment; his calls were not

9



returned (Ex. 17, A564-65). He called a fourth time and spoke 

directly to Landlord-wife stating he was there when she forgot 

her keys; she stated the apartment was not available (A565). He 

asked if “anything else came up in the building would she give 

him a call” and she agreed to do so, but never did (A566). Heidi 

Sestrich, a white female agreed to serve as a tester at request 

of Caroline Mitchell and was asked to make phone calls to 963- 

8706 about the apartment which she did (A423-429). Ronald 

Alexander received no call on Thursday 10/5 (A405,406) so left a

message on 963-8706 for Maria to call him (A407). On 10/6,

Ronald Alexander spoke directly to Landlord-wife and was told 

that the apartment was not available (A566-568). Ronald asked 

her to put him on a list for the building and she stated it will 

be a long time till a unit is available (A568-569). On 10/6, 

Sestrich received a message in which the caller identified 

herself as Maria Riga and stated that the Darlington apartment 

was available and could be seen on Saturday (A427). On 10/7, 

Landlord-wife left a message again at 9:08 am stating, “I haven't 

heard from you and was wondering what time you wanted to go see 

the apartment this afternoon, call me and leave a message” (A427- 

435);tape recording (EX.19A&B)
On 10/8/95 Ronald had received no call from Landlord-wife 

(A569-570). A slightly different ad was in the Sunday newspaper 

(Ex. 2 D), the apartment was now a two bedroom, with the same 

tent same phone number and same features (A570-73). He called

10



and Landlord-wife told him she placed the ad prematurely because 

the people had not yet moved out” and that he couldn't see it 

(A570-573) . At 1:35 pm SUNDAY 10/8, Ronald called Robin 

McDonough; he felt he had to tell her why he was asking her to 

call 963-8706 again. He felt “hurt and discouraged, it is sort 

of degrading , it discourages you from trying... to find a place 

for your family to live, it is just sickening, I really can't 

describe it. It is terrible...” (A573-574). This time, Ronald 

Alexander explained to Robin McDonough that he believed that he 

was being discriminated against getting an apartment merely 

because he was black, and he asked Robin to make another call 

which she did on October 8(A404,574). Robin spoke directly to 

Landlord-wife and set up an appointment for Monday, October 9, 

1995. McDonough saw the vacant apartment at 5839 Darlington Road; 

Landlord-wife said it was available immediately (A404-406).

Robin advised Ron Alexander of this (A207,412). Ron Alexander 

and his wife Fay listened to the tapes of Landlord-wife's calls 

to Heidi . Ron said it really hurt me -- it is the nineties, and 

we got somebody like this ...(A574-575). He decided to go with a 

federal lawsuit because she turned me down time after time, eight 

or nine times she refused me. I knew what she was doing and I 

wanted to stop her I still do...” (A574-575). The apartment was 

not rented until 11/18/95. (Ex. 23 Lease, A1036-1041).
V. STATEMENT OF RELATED CASES AND PROCEEDINGS...

A cross-appeal was filed by the Defendants.

11



VI. STANDARDS OF REVIEW

This court exercises plenary review over an order granting 

or denying Plaintiffs' motions for judgment as a matter of law as 

to punitive damages, nominal damages, injunctive, equitable, 

declaratory relief, and costs applying the same standard as the 

district court. See Failla v. City of Passaic, 146 F.3d 149,

(3rd Cir. 1998), Lightning Lube, Inc. v. Witco Corp., 4 F.3d

1153, 1166 (3d Cir. 1993) . Where the district court's decision

rests on the application of legal precepts , this Court exercises 

plenary review. Link v. Mercedes-Benz of North America.,Inc., 788

F. 2d 918, 921 (3d Cir. 1986) .
Appellants, challenges to the district court's evidentiary 

rulings relate to their right to injunctive relief and to a new 

trial on punitive damages , and an abuse of discretion standard 

applies to the district court's decision to admit evidence and to 

grant or deny a new trial. Rotondo v. Keene Corp., 956 F.2d 436,

438 (3d Cir. 1992).
In considering appellants' arguments that the district 

court improperly determined plaintiffs not to be the prevailing 

parties, this court applies an abuse of discretion standard. Rode

v. Dellarciprete, 892 F.2d 1177, 1182-83 (3d Cir. 1990).

The lower court's refusal to grant a new trial or additur 

of compensatory damages is reviewed as an error of law de novo.

New Jersey Coalition of Rooming and Boarding House Owners v.

12



Mayor of Asbury Park, 152 F.3d 217 (3d Cir. 1998).

VII. SUMMARY OF THE ARGUMENT

Under the plain language and legislative history of the 

Fair Housing Act, an award of actual damages is not a necessary 

prerequisite to an award of punitive damages under the Fair 

Housing Act. A majority of courts have held that punitive 

damages can be awarded in the absence of actual damages for 

federal civil rights violations.
Because a principal is vicariously liable under Section 

217(c) of Restatement of Agency for punitive damages where a 

managerial agent has recklessly violated a nondelegable duty not 

to discriminate under the Fair Housing Act, the lower court erred 

in refusing to submit punitive damages to be decided by the jury 

against Landlord-husband as principal. Because the acts of the 

Landlord-wife, acting as principal and as managerial agent, 

directly violated the Fair Housing Act, and were done recklessly, 

the lower court erred in refusing to submit punitive damages 

against Landlord-wife to be decided by the jury.
Because an award of nominal damages recognizes violation of 

a federal right, an award of nominal damages must be entered as a 

matter of law for a victim where a jury has found that victims' 

federal civil rights under the Fair Housing Act have been 
violated, but has awarded no actual damages. Since an award of 

nominal damages recognizes violation of a federal right, and is 

not intended to “compensate” a victim, it is plain error to

13



charge the jury that an award of nominal damages requires a 

finding of “insubstantial”, actual damages, or of “legal harm”.

The court must enter nominal damages as a matter of law in favor 

of each victim whose federal rights have been violated, as the 

right to be free from race discrimination in leasing property is 

a “fundamental” right under federal law.

Where victims of race discrimination presented 

uncontroverted testimony of actual damages suffered, the court 

must enter a judgment for actual damages as a matter of law under 

the Fair Housing Act.
Where the jury returned special verdicts finding victims' 

Fair Housing rights to have been violated by Landlords, victims 

are entitled to a declaratory judgment in their favor against 

Landlords, and an award of costs in victims, favor as prevailing 

parties.
Where the jury returned special verdicts finding the Fair 

Housing Act to have been violated by Landlords' continuing course 

of refusals to deal with blacks, a grant of injunctive relief is 

necessary to afford full relief to victims, and to safeguard 

society's interests in insuring fair housing opportunities. The 

court's unfounded belief that Landlords may have stopped 

discriminating after the trial is no justification for refusing 

injunctive relief. Appellants properly preserved their 
entitlement to injunctive relief, and the lower court erred in 

finding a waiver of injunctive and declaratory relief.

14



Where Plaintiffs tendered testimony of an eyewitness who 

personally observed Landlord discriminating against other black 

applicants, and where this witness's address was only discovered 

by Plaintiffs during the trial due to Defendants' counsels' 

refusal to supply his address to Plaintiffs in discovery, the 

testimony of this witness should have been permitted, as no 

surprise or prejudice resulted to Defendants whose own counsel 

had interviewed the witness, then knowingly concealed the witness 

from Plaintiffs.
VIII. ARGUMENT

I . Punitive Damages Are Awardable without a 
Prerecruisite Finding of Actual Damages

Section 3604 of The Fair Housing Act is violated by 
representing to any person that an apartment is not available for 

inspection or rental, when such apartment is in fact available, 

and by refusing to negotiate for rental of an apartment, because 

of race. The Fair Housing Act, Sec.804, 82 Stat.88,P .L .90-284,

42 U.S.C. 3604 (1988).The duty not to violate this law is a

“nondelegable duty” because of the national public policy in 
guaranteeing housing opportunities to persons regardless of race, 

religion, or sex. Walker v. Crigler, 976 F.2d 900, 904 (4th Cir.

1992)
Landlord Husband and Landlord Wife admitted that Wife was 

acting as managerial agent for Husband. A principal is liable 
for punitive damages for discriminatory acts done by a managerial 

agent acting within the scope of her duties. Restatement of the

15



law , Torts, Sec. 909. Where the duty is nondelegable, if an

agent violates the law, the principal is liable for acts of his 

agent. A principal cannot escape legal responsibility for an 

agent's refusing to perform a nondelegable duty. Restatement of

the Law, Agency (Second) Sec.214, comment A."It would be too easy

for the broker or owner to plead ignorance when an agent was 

caught, and it would be unfair to only punish a manager or agent 

for what the owner or employer should have controlled and trained 

the employee to avoid.” James A. Kushner, Fair Housing , Sec.

4.22 at 255 (1983) .
A. Title VIII's Plain Language Does Not Require 

Actual Damages as A Condition for Punitive Damages
42 U.S.C. 3612, section 812(c) of the Fair Housing Act,

provides that "the court may grant as relief, as it deems

appropriate, any permanent or temporary injunction, temporary

restraining order, or other order, and may award to the Plaintiff

actual damages and not more than $1,000 punitive damages2,

together with court costs and reasonable attorney fees." Because

no actual damages were awarded for housing discrimination, the

lower court refused to send punitive damages to the jury (A907).

2
The standard for punitive damages in a federal civil rights 
action was set by Smith v. Wade, 461 U.S. 30, 56, 103 S. Ct.
1625, 75 L .Ed.2d 632 (1983). "A jury may be permitted to assess
punitive damages in an action under 42 U.S.C. 1983 when the 
defendant's conduct is shown to be motivated by evil motive or 
intent, or when it involves reckless or callous indifference to 
the federally protected rights of others."

16



There is no requirement of an award of actual damages as a 

precondition for an award of punitive damages in the plain 

language of this statute. There is a specific damages provision 

in Title VIII. The court's duty is to "give effect, if possible, 

to every clause and word of [the] statute," Bennett v. Spear, 520

U.S. 154, 117 S. Ct. 1154, 1166, 137 L.Ed.2d 281 (1997) and must

interpret it as written by Congress. See National Credit Union

Admin, v. First Nat'l Bank & Trust Co., 118 S.Ct.927, 938-40 140

L.Ed.2d 1, (1998) .
B . The Legislative History Does Not Discuss Actual 

namagpR as a Prerequisite to Punitive Damages

The legislative history of predecessor fair housing bills 

contains no proposal that an award of actual damages is a 

prerequisite for an award of punitive damages. See Hearings on

S.3296, 89th Cong. 2nd Sess. (1966), Hearings before the

Subcommittee on Constitutional Rights of the Committee on the 

Judiciary, 89th Cong. 2nd Sess. (1966) and H.R. 15171 , Hearings 

on Miscellaneous Proposals Regarding Civil Rights before 

Subcommittee No.5 of the House Committee on the Judiciary, 89th

Cong., 2d Sess., ser. 16, p.1183 (1966). The original house bill

HR 15171 provided for ,injunctive relief, actual damages, and 

punitive damages capped at $500.00 ...' Hearings, H. 15171 p. 

1057.
In 1968, the civil rights protection bill, HR 2516,

17



incorporated the fair housing provisions from HR 151713 but with 

a $1,000 cap on punitive damages in sec. 812(c). The explanatory- 

memoranda for HR 2516 discuss no requirement of actual damages as 

precondition to punitive damages. B. Schwartz, Statutory History

of the United States, V. 2, p. 1798-1809 (1970) HR 2516 passed as

the Civil Rights Act of 1968, and contained the Fair Housing Act 

as Title VIII , Sec. 801-814.

The Fair Housing Act was amended in 1988 to eliminate the

$1,000 cap on punitive damages4. No requirement of actual

damages as a condition for punitive damages was proposed during

debate on these amendments.

C . The Remedial Purpose of Title VIII is Not 
Served By Narrow Limitations on Punitive Damages

Title VIII has a broad remedial purpose of eradicating 

racially-segregated housing, Traficante v. Metropolitan Life Ins

Co.,409 U.S.205,211, 34 L.Ed.2d 415, 93 S.Ct.364 (1972),that

purpose is not served by requiring an award of actual damages

3The Attorney General's remarks on HR 15171 state that 
punitive damages are in addition to an award of actual damages: 
“Damages included... any damages he might have sustained and could 
also be awarded up to $500 exemplary damages.” Hearings, H 15171 
p. 1070 (remarks of N. Katzenbach).

4

The relief provisions of §813 (c) as added in 1988 are 
virtually identical to former §812 of the original Housing Act, 
Pub. L. No. 90-284, §812, 82 Stat. 88 (1968). The only
significant differences between current §813 (c) and former §
812(c) are §813 eliminates the $ 1000 cap on punitive damages and 
broadens discretion to award attorney's fees. See H.R.
REP.No.100-711, at 39-40 (1988); 1988 U .S .C .C .A .N .2173, 2200.

18



before allowing punitive damages. "Punitive damages are not 

intended to compensate the victim, but rather to punish the 

tortfeasor whose wrongful action was intentional or malicious, 

and to deter him and others from similar conduct.” W.Prosser, Law

Of Torts 9-10 (4th Ed.1971). Actual damages are often impossible

to prove in housing cases. An award of punitive damages is 

particularly important for its deterrent effect against other 
racist Landlords.

2 • Federal Civil Rights Law Permits An Award Of 
Punitive Damages Without Actual Damages

In Rogers v Loether, 467 F.2d 1110 (7th Cir. 1972) aff'd in

part, rev'd on other grounds sub.nom Curtis v. Loether, 415

U.S.189, 39 L.Ed.2d 260, 94 S.Ct.1005, the Seventh Circuit, in a 

Fair Housing Act claim of race discrimination in rental of an 

apartment , approved the trial court's nonjury award of $250 in 

punitive damages despite absence of any actual loss to the 

Plaintiff. The court noted that the language of the Fair Housing 

Act does not require a finding of actual damages as a condition 

to an award of punitive damages. On appeal, sub. nom. Curtis v.

Loether id., the Supreme court noted that an award of punitive

damages for a Title VIII violation was authorized notwithstanding 
the absence of actual loss', but remanded for jury trial to set 

the amount of punitive damages.

Even "testers" who apply for housing solely to test whether

19



discrimination is being committed have standing to recover 

exemplary damages. See Havens Realty Corp. v. Coleman, 455 U.S.

363, 71 L .Ed.2d 214, 102 S .Ct. 1114 (1982). The Havens standard

was recently applied in Tyus v. Urban Search Management, 102 F.3d

256,266 (7th Cir. 1996), which holds that testers who read 

newspaper ads that depict racially unbalanced groups of models

may be entitled to punitive damages. In Tyus, a jury found that

Defendants violated the Fair Housing Act by publishing racially 

preferential ads, but awarded no actual damages. The trial court 

granted judgment as a matter of law for Defendants as to punitive 

damages, and awarded costs to Defendants. On appeal, the Seventh 

Circuit reversed and remanded for new trial on punitive damages 

because of plain error of requiring proof that the discriminatory 

advertising caused actual injury, as precondition for punitive 

damages .
The Third Circuit has allowed a jury award of punitive 

damages to stand in a due process case under 42 U.S.C. 1983 

without an award of compensatory damages. See Basista v. Weir,

340 F .2d 74 (3rd Cir. 1965) The Seventh Circuit cited Basista in

holding that punitive damages can be awarded when the jury has 

awarded neither compensatory nor nominal damages. Erwin v.

Manitowoc County, 872 F.2d 1292, 1299 (7th Cir. 1989) .

Employment discrimination decisions under Title VII have 

held that punitive damages can be awarded without compensatory

20



damages. Hennessy v. Penril Datacomm Networks Inc., 69 F.3d

1344,1351-1352(7th Cir. 1995). The Hennessy court held that

punitive damages are available under Title VII even when the jury 

does not assess compensatory damages as "nothing in the plain 

language of section 1981a conditions an award of punitive damages 

on an underlying award of compensatory damages." The court 

cautioned that “extra statutory requirements for recovery should 

not be invented”. See also Lebow v. American Trans Air, Inc. , 86

F. 3d 661, 669 n.ll (7th Cir. 1996), Timm v. Progressive Steel

Treating, Inc., 137 F.3d 1008 (7th cir. 1998), and Shea v.

Galaxie Lumber Co., 152 F.3d 729 (7th Cir. 1998)

3. A Managerial Agent's 'Direct.Liabdlitgj
for Punitive Damages For Bar Own Discrimination

In Miller v. Apartments & Homes,Inc., 646 F.2d 101 (3rd

Cir. 1981) punitive damages were awarded where defendant acted 

with reckless disregard5 of whether he is violating a federally 

protected right, or consciously and deliberately disregards the 

consequences of his actions. Landlord Wife's conduct was 
reckless and in deliberate disregard of Plaintiffs' rights 
because Landlord Wife repeatedly lied and refused to deal with 

blacks about the apartment.

5

Smith v.Wade, supra fn.l was proposed by Plaintiffs as the 
punitive damages standard (A 265, 278), but the trial court ruled 
that “outrageous” conduct was required (A950).

21



Other courts have awarded punitive damages for such 

conduct. See Fountila v. Carter, 571 F.2d 487 (9th Cir. 1978)

(landlord lied about availability of apartment, hung up phone 

when applicant called again; continued to advertise and try to 

rent to whites; court found “deliberate disregard” of rights. )

In Woods-Drake v. Lundy, 667 F.2d 1198 (5th Cir. 1982) a “wilful

and gross” violation of the Fair Housing Act supported punitive 

damages where landlord evicted tenants for having black guests; 

on remand, the trial court was directed to assess compensatory 

damages and to assess punitive damages to deter future 

violations.
Repeated refusals to deal will support punitive damages.

In Phiffer v. Proud Parrot Motel, 648 F.2d 548, 552 (9th Cir.

1980), a motel's repeated refusals to rent established the 

“wanton nature” of violations sufficient for punitive damages. 

“Systematic” discrimination was sufficient for punitive damages 

in Seaton v. Sky Realty Co. 491 F.2d 634 (7th Cir. 1974)

(racially motivated refusals to negotiate for house in a 

predominantly white area.) But systematic discrimination is not 

required; punitive damages were awarded for a one time, wilful 

failure to deal in Dillon v. AFBIC Development Corp., 597 F.2d

556 (5th Cir. 1979) (remand to consider punitive damages against 

developer who refused to sell a house due to race); and Sanborn

v. Wagner, 354 F .Supp. 291 (D.C. Md. 1975) (punitive damages

22



against broker who told, hontsownsr that "blacks are moving in and 

you should sell while you can still get a good price”) ; Portee v.

Hastava, 853 F.Supp.597 (E.D.N.Y. 1994) (willful acts of real

estate agent in refusing to lease to interracial couple or allow 

black husband to sign lease, refusing to shake black's hand or to 

return deposit supported punitive damages) ,* Walker v. Fox, 3 95 F

Supp. 1303 (S.D. Oh. 1975) ($250 in punitive damages for

landlady's “willful disregard” by discriminating in rentals on 
the basis of race, noting punitive damages available where a 

deterrent effect would be accomplished.) Contra, see Ragin v.

Harry Macklowe Real Estate Co., 801 F .Supp.1213(S.D . N.Y.

1992)(denying punitive damages for one-time use of all-white 
models in ad.)

Punitive and compensatory damages were awarded to a fair 

housing agency for owner's agent's discriminatory conduct to 

black testers in Open Housing Center v. Jakabovitz, 24 F.3d 372,

380 (2nd Cir.1994)(jury held principal liable for punitive

damages for acts of his real estate agent, and awarded

compensatory and punitive damages against brokers as agents and
against owner as principal.)

4. Vicarious Liability of Husband as Principal For 
Managerial Acts of Landlord-wife as Agent

The issue of first impression is whether Landlord husband

23



as principal can be vicariously6 liable for punitive damages for 

violations of the nondelegable duty under Title VIII by the 

reckless discriminatory acts of his managerial agent. Since 

Landlord's duty under the Fair Housing Act is “nondelegable” a 

principal is not insulated from liability for punitive damages 

for discriminatory acts done by a managerial agent acting within 

the scope of her authority. Restatement (Second) Agency, 217(c).

When Title VIII's nondelegable duty not to discriminate is 

violated, violators must be punished by an award of punitive

damages to serve as an example to the community. The remedial 

purpose of Title VIII is not served by refusing to assess 

punitive damages against a principal husband for reckless acts by

his managerial agent, Landlord-wife.
II. Plain Error in Instructing The Jury That Legal 

Harm and 'Insubstantial1 Actual Damages Are 
Prerequisite for an Award of Nominal Damages

D. Dobbs, Law of Remedies, Sec.3.8, pp.191-193 (1973),

notes that nominal damages recognize violation of a right:

6

A principal is directly liable where he himself commits, 
authorizes or ratifies discriminatory treatment Miller v. 
Apartments & Homes, Inc. 646 F.2d 101, 111 (3rd Cir.1981) (award 
of $ 25,000 in punitive damages for discrimination against 
Principal for agent's action, where principal was involved in 
wrongdoing or authorized, ratified or fostered the agent s 
discriminatory acts) ; see also Asbury v. Brougham, 866 F.2d 1276 
(10th Cir. 1989) (owner of management company and agent who 
refused to rent both liable punitive damages against owner
sustained. )

24



“..Nominal damages are awarded in some cases to 
vindicate legal rights, even though it is clear that 
no economic harm has been done ... Nominal damages are 
sometimes awarded to vindicate and judicially 
establish a right. In many cases, the Plaintiff is 
entitled to expect certain conduct of a defendant even 
if no harm is done ... Since nominal damages are not 
aimed at compensation for harm done by defendant's 
actionable conduct, they do not represent damages at 
all. "

In Carey v. Piphus, 435 U.S.247,266-67,98 S .Ct. 1042, 1054,

55 L.Ed.2d 252 (1978), the Court held that where due process was

denied, absent proof of actual injury, Plaintiffs are entitled to 
recover only nominal damages:

..Common-law courts traditionally have vindicated 
deprivations of certain "absolute" rights that are not 
shown to have caused actual injury through the award 
of a nominal sum of money. By making the deprivation 
of such rights actionable for nominal damages without 
proof of actual injury, the law recognizes the 
importance to organized society that those rights be 
scrupulously observed; but at the same time, it re­
mains true to the principle that substantial damages 
should be awarded only to compensate actual injury or, 
in the case of exemplary or punitive damages, to deter 
or punish malicious deprivations of rights ... "

As a matter of federal common law, nominal damages are

proved by proof of a deprivation of a right of which the

Plaintiff was entitled. C. McCormick, Law of Damages Sec. 2022

(1935); Restatement Of Torts Sec. 907 (1939), Basista v. Weir,

340 F .2d 74,87 (3rd. Cir.1965) (Plaintiff in due process case
who proved no actual damages entitled to punitive and nominal 

damages) ; Czurlanis v. Albanese, 721 F.2d 98, 107 (3d Cir. 1983)

(jury awarded no compensatory or punitive damages; appellate 
court notes nominal damages award was appropriate and remands for

25



new trial on damages.)

Plaintiffs requested an award of nominal damages (A853)7 

The court used boilerplate nominal and compensatory damages 

charges, which when read in conjunction with the court's special 

verdict form, made it impossible for the jury to award nominal 

damages unless legal harm and “insubstantial” actual damages were 
first found:

“...Finally, in connection with the issue of damages, 
if you find that Plaintiffs are entitled to verdicts 
in their favor in accordance with these instructions, 
but you do not find that the Plaintiffs have sustained 
substantial actual damages, then you may return a 
verdict for the Plaintiffs in some nominal sum, such 
as one dollar, on account of actual damages..."
(A887).

The jury was told that in essence it could award nominal 

damages if it found “insubstantial” actual damages. The court 

then gave a special verdict which directed the jury to skip all 

damages, (including nominal damages) unless the jury had found 

“legal harm”. This was plain error under Carey, since “absent

proof of actual injury”, nominal damages are to be awarded to 

recognize violation of a federal right, regardless of absence of

7

The lower Court specifically instructed counsel at the charge 
conference that if a matter was dealt with in the charge 
conference, there was no need to object further (A827-828). 
Plaintiffs did not except to the damages charge, so it is 
reviewable as plain error. The plain error review under Rule 51 
is suited to correcting obvious instances of injustice or 
misapplied law. C. Wright and A. Miller, Federal Practice and 
Procedure at 2253 (1971); 5(a) J.Moore, Moore's Federal Practice
Para.51-04 n3 (1980)

26



an “actual” injury.

Under the court's Special Verdict form, (A888-891) it was

impossible for a jury to answer the damages question so as to

award nominal damages if it had not found “legal harm”, i.e.

awarded “actual” damages. Before the jury saw the special

verdict form, it had been instructed that it could not award any

damages whatsoever, nominal or actual, unless it found “legal

harm”, that is, “actual” injury. So if a violation of the Fair

Housing Act was committed, but no “actual” injury or “legal harm”

was caused to a Plaintiff, this jury could not return a verdict

of nominal damages on the form. The court also instructed:

“...You may only award such amount as you find will 
fairly and adequately compensate the Alexanders for 
their actual damages, and only if those damages were 
legally caused by Mrs. Riga's unlawful race 
discrimination...” A884.

The court gave a boilerplate “legal” harm instruction to the 

jury. But there was no definition of “actual damages”, “actual 

injury” or “actual harm”, as prerequisites to an award of nominal 

damages. No evidence of the “actual” loss of $1.00 was, of 

course, presented by any Plaintiff to support a nominal damages 

award. These nominal damages instructions were plain error under 

Carey, as Plaintiffs did not need to prove they suffered any

actual, injury, substantial or insubstantial, as a prerequisite 

for recovery of nominal damages for violation of the law.

The court did not define “actual damages”; thus the jury 

could have believed each Plaintiff needed to prove “real” or

27



“tangible”, or “currently existing”, damages, to prove “legal harm” 

(such as the loss of one dollar, or higher rent payments, or 

medical bills for emotional distress) Under the court's 

instructions, if Plaintiffs failed to provide proof of “actual 

damages with certainty”, no nominal damages could be awarded by 

the jury despite the jury findings that Landlord had 

discriminated. The same error of requiring “insubstantial”, 

actual damages as a prerequisite for nominal damages taints the 

jury's verdict and results in an inability to award nominal 

damages to each appellant. Nominal damages are mandated for a 

violation of federal civil rights under Carey. Instructions

under which the jury was required to find as prerequisites for an 

award of nominal damages either “legal harm” or insubstantial 
"actual* injury, are plainly erroneous.

Such plain error seriously misled the jury and compromised 

its understanding of its obligation to award nominal damages for 

violations of rights under the Fair Housing Act. Each appellant 

seeks an order vacating the entry of judgment for Defendants and

8

The word "damages" has a commonly understood meaning, payment in 
money for losses caused by a defendant's breach of duty, see 
Black's Law Dictionary, 351-52 (1979). 'Actual' means acting or
existing truly or objectively; real, effectively operative, 
effectual; as opposed to potential or nominal; now existing, 
present or current.1 N. Webster, New Webster's Dictionary Of The 
English Language, at p.12 (1981 Ed.) "Actual damages" to which a
Plaintiff could be entitled includes compensatory damages for 
injuries such as emotional distress, and out-of-pocket losses.

28



directing the lower court to enter an award of nominal damages

for each appellant whose rights were violated.

B . Cases Awarding Nominal Damages to Recognize 
Violations of Federal Civil Rights

The appellate court may vacate the entry of judgment for 

defendant and remand with an order to enter award of nominal 

damages where Plaintiff's rights were violated and the error is 

plain. See Gibeau v. Ellis, 18 F.3d 107,110 (2nd Cir. 1994)

(lower court erroneously instructed jury it “may” award nominal 

damages but did not instruct that it “must” when it found a 

constitutional violation; lower court refused to award nominal 

damages to inmate; appellate court reversed, applying plain error 

doctrine and finding that because of the erroneous structure of 

the special verdict form, jury was precluded from considering an 

award of nominal damages once it found that excessive force 

caused no injury.) See also Fassett V. Haeckel 936 F.2d 118 (2nd

Cir. 1991) (after erroneous instruction that jury “may” award 

nominal damages for violation of constitutional rights, jury 

found violation but awards zero damages, Plaintiff's post trial 

motion granted for $1 in nominal damages; on appeal, no error 

found in trial court's grant of nominal damages ); Basista v.

Weir, 340 F.2d, at 87 (3rd Cir.1965)(noting trial court's entry

of nominal damages of $1 and holding that jury may award punitive 

damages despite no award of actual damages), Farrar v. Cain, 756

F. 2d 1148 (5th Cir.1985)(jury found constitutional violation but

29



awarded no actual damages; on appeal, remanded with order to 

enter judgment for nominal damages)

An award of nominal damages is proper where a fact finder 

has returned a verdict finding employment or housing 

discrimination, but awards no actual damages. This is the rule 

in the 1st, 2nd, 5th, 8th, 10th and 11th circuits. In 1998, the 

Supreme Court reinstated the trial court's entry of nominal 

damages for an employee subjected to sexual harassment under 

Title VII in Faragher v. City of Boca Raton, 524 U.S. 775, 141

L.Ed.2d 662 at 690 (1998) (reversing en banc judgment of the

eleventh circuit court of appeals, which vacated district court's 

findings of liability of Employer and entry of nominal damages 

for employee. ) See also Cabrera v Jakabovitz, 24 F. 3d 372 (2nd

Cir. 1994) (appellate court remands with directive to enter 

nominal damages in favor of tester in Title VIII case against 

landlord, where landlord violated the law, but jury refused to 

award even nominal damages), Le Blanc-Sternberg v. Fletcher, 67

F.3d 412 (2nd Cir. 1998), (jury found Plaintiff's rights under 

Fair Housing Act and first amendment violated, found no actual 

damages, entry of judgment as matter of law for Defendants 

reversed and remanded to award nominal damages); Patterson v. PHP

Health-Care, 90 F.3d 927 (5th Cir.1996) (reversing compensatory

damages award, and imposing nominal damages for 42 U.S.C. 1981 

and Title VII violations ); Bailey v. Runyon, 167 F.3d 466 (8th

30



Cir. 1999) (lower court directed to award nominal damages on 

remand where jury had found employee was sexually harassed but 

awarded no damages ); Gudenkauf v. Stauffer Communications, Inc.,

158 F.3d 1074 (10th Cir. 1998) (award of nominal damages

appropriate for pregnancy discrimination where jury found 

liability but failed to award compensatory damages, affirming 

lower court award of nominal damages) and Caban-Wheeler v. El sea,

71 F.3d 837, 840 (11th Cir. 1996)(where jury awarded $100,000 in 

punitive damages under Title VII and 42 U.S.C. 1981, but 

Plaintiff had requested no nominal damages, trial court granted 

additur of $1 nominal damages on Plaintiff's post trial motion, 

although Plaintiff had not requested jury charge; appellate court 

held this to be proper and not an abuse of discretion)

C • Since Fair Housing Rights are “Fundamental”.
The Lower Court Erred In Denying Nominal Damages

The lower court ruled that Title VIII Plaintiffs are not 

entitled to an award of nominal damages because such rights are 

not “fundamental”. The lower Court relied on a minority view, 

first advanced in Landlords' post trial brief, that nominal 

damage awards are impermissible in cases not involving 

“fundamental” constitutional rights. The lower court denied 

nominal damages on authority of Walker v. Anderson Electrical

Connectors, 944 F.2d 841,844-45 (11th Cir. 1991), cert, denied,

122 L. Ed. 2d 352, 113 S .Ct. 1043 (1993) (denying Title VII

31



Plaintiff nominal damages9, holding that Title VII rights are 
merely “statutory” not “fundamental”.)

But the right to hold and use property has been recognized 

as a fundamental right by the Supreme Court since 1883. In dicta 

in Civil Rights Cases, 109 U.S. 3,2223, 3 S. Ct. 18 (1883), the

Supreme Court stated that the right to public accommodations and 

to hold property are among the “fundamental rights” of mankind: 

"...An individual cannot deprive a man of his right to vote, to 

hold property, to buy and sell, to sue in the courts, or to be a 

witness or a juror... " Id. at 22-23. The disability to hold

property was an inseparable incident of slavery which Congress 

sought to wipe out by passage of the 1866 Civil Rights Act, to 

guarantee “fundamental” rights to blacks the same as those 

enjoyed by white citizens. Id. at 23.

The Eleventh Circuit was wrong in its holding in Walker

that nominal damages are unavailable for the violation of mere 

"statutory”10 rights. The lower court here is likewise wrong in

9

Walker is distinguishable from the instant case. Here,
Appellants requested a nominal damages charge and filed a post 
trial motion for judgment as matter of law for nominal damages. 
Walker failed to request any nominal damages charge at trial and 
failed to file a post trial motion requesting nominal damages 
additur.

10

See, e.g.,the earliest reported Supreme Court decision upholding 
nominal damages for a statutory right, Hogg v. Emerson, 47 
U-S.437, 12 L .Ed 505, 6 How. 437 (1846) (upholding an award of 
nominal damages for infringement of a patent under the Patent Act

32



refusing to permit an award of nominal damages to recognize the 

fundamental right to be free of race discrimination in the lease 
of property.

Ill. Plaintiffs, Whose Damages Testimony Was 
Uncontradicted. Are Entitled to an Award of Compensatory 

Damages Upon Finding of Fair Housing Act Violation.

“In a civil action under Subsection (a)of this section, if 

the court finds that a discriminatory housing practice has 

occurred, or is about to occur, the court may award to the 

Plaintiff actual and punitive damages.” 42 U.S.C. § 3613(c) (1) . 

The jury in this case found that the Fair Housing Act was 

violated as to each Plaintiff. The jury also found that the 

Landlords' discriminatory conduct inflicted legal harm upon the 

FHP. (A917). The FHP sustained actual damages, including fees 

paid to black and white testers in the sum of $50.00, and other 

costs incurred for the services of staff needed to combat the 

Landlords' discriminatory conduct. The damages testimony of 

Andrea Blinn, the FHP's Executive Director, was not disputed or 

contradicted in any way by the Landlords. The jury, 

nevertheless, awarded zero actual damages to FHP. The Alexanders 

sustained costs of $135.30 for private detective, Jeff Lang 
(A374) .

of 1793); see also Story Parchment Co. v. Paterson Parchment 
Paper Co., 282 U.S. 555, 51 S.Ct.248, 75 L .Ed. 544 (1931)
(nominal damages available for antitrust violations); and Norwood 
Lumber Co. v. McKean, 153 F. 2d 753 (3rd Cir. 1946) (nominal 
damages appropriate for violation of a contract or Uniform 
Commercial Code provision.)

33



The lower court refused to award compensatory damages to 

the FHP, or the Alexanders, or in the alternative to grant a new 

trial on the issue of compensatory damages. The court1s opinion 

states that the jury could properly award no damages on the 

grounds that it "... may have concluded that the services of FHP 

were insignificant, and/or of no value...” or that, “since FHP 

received federal funding ...a reasonable jury could have 

concluded that ... FHP sustained no actual damages”.

The lower court's refusal to award damages, or in the 

alternative, to grant a new trial on damages was an abuse of 

discretion. Compensatory damages are mandatory where the fact­

finder has determined that the Fair Housing Act was violated. In 

Curtis v. Loether, 415 U.S. 189 (1974), which held that a party

has a right to a jury trial on a claim under the Fair Housing 

Act, the Court specifically noted that “if a Plaintiff proves

unlawful discrimination and actual damages, he is entitled to a 

-judgment for that amount. Id. at 197 (emphasis added) .

Based on Curtis, if a party proves actual damages “. . .a

district court's award of compensatory damages is mandatory, not 

discretionary” U.S. v. City of Hayward, 36 F.3d 832, 839 (9th 

Cir. 1994), Jordon v. Dellway Villa of Tennessee Ltd., 662 F.2d

588, 596 (“If race played a part in the claimant's denial, then 

recovery of damages is mandated”); Woods-Drake v. Lundy, 667 F.2d

1198, 1203 (5th Cir. 1982) (directing district court “to award

34



Plaintiffs an amount to compensate them for their actual 

losses”.) See, also, Johnson v. Hale, 13 F.3d 1351 (9th Cir.

1995)where the Court of Appeals concluded that violation of Title 

VIII resulting from one racially-biased refusal to rent an 

apartment to a black applicant entitled the Plaintiffs to an 

award of “adequate” damages, remanding to the lower court for 

such award.

This court in New Jersey Coalition of Rooming and

Boardinghouse Owners v. Mayor of Asbury Park, 152 F.3d 217 (3rd

Cir. 1998) followed the Ninth Circuit's analysis in U.S. v.

Hayward, supra, that damages under the Fair Housing Act are 

mandatory. In rejecting the district court's conclusion that the 

Plaintiffs, in New Jersey Coalition of Rooming and Boardinghouse

Owners were not entitled to damages because they were, according

to the lower court, not "... members of the protected group...”, 

this court stated:
“While at first glance this language ('may 
award') appears discretionary, we decline to 
accept the district court's reading, and 
instead, endorse the Ninth Circuit's 
thoughtful opinion in U.S. v. Hayward, which 
concluded that the compensatory damages 
provisions of the FHA are mandatory”.
(citation omitted).
Id. at 223.

This court concluded:
. . we agree with the Ninth Circuit that 

'Congress did not intend the court's to have 
discretion to award actual compensatory

35



damages if a party has actual damages,' for 
if it did, 'it would have changed the 
language of the new damages provision when 
it enacted the 1998 Amendments. ' ... thus,
'if a party proves actual damages, a 
district court's award of compensatory 
damages is mandatory, not discretionary'.”
(citations omitted) Id. at 224. (emphasis 
added).

In this case, the FHP proved “unlawful discrimination”, 

suffered “legal harm”, and offered uncontradicted testimony of 

“actual damages”. Indeed, landlord's only challenge to the FHP' s 

damages was that it received federal funding. The source of a 

Fair Housing organization's funding, however, cannot, as a matter 
of law, disprove actual damages.

Similarly, the Alexanders also offered uncontradicted 

testimony that Maria Riga's deliberate, racially discriminatory 

conduct caused them embarrassment, humiliation and emotional 

distress. Ronald Alexander was “more than upset” (A621). 

Landlord-wife's conduct made Ronald Alexander “angry” (A 554, 

“really hurt me” (A575) He knew what she was doing and wanted to 

stop her (A576), it was embarrassing (A578). Faye Alexander 

testified that she was pretty disgusted (A195), and pretty upset 

(A196) at being lied to. The Alexanders also offered 

uncontradicted testimony of Lang's bill in the sum of $135.30 
(A374) . While it might be justifiable to refuse to award any 

compensatory damages in a case involving a single incident of 

discriminatory conduct or in a circumstance where no racially

36



discriminatory intent is found, the failure to award compensatory 

damages for out-of-pocket expenses, embarrassment, and 

humiliation where there were repeated instances of racially 

motivated refusals to deal is not acceptable. As the Ninth 

Circuit ruled in Johnson v. Hale,11 Id. at 1354, not only are

compensatory damages required in such circumstances, the damages

must be “in an appropriate amount, such as $3500".

IV. The Plaintiffs Are Entitled to In~iunctive. 
and Declaratory Relief Based upon the Jury's Finding 

of Unlawful Discrimination.

The jury's verdict found that the Landlords intentionally 

discriminated against each Plaintiff on the basis of race. This 

verdict required the lower court to grant appropriate equitable, 

declaratory and injunctive relief, and costs to Plaintiffs as 

prevailing parties. The court cannot properly enter a judgment 

that disregards a material finding of fact by the jury. Atlantic

& Gulf Stevedores, Inc. v. Ellerman Lines,Ltd., 369 U.S. 355,

364, 82 S.Ct. 780, 7 L .Ed. 2d 798 (1962).

Once discrimination has occurred, a federal court has 

“•..not merely the power but the duty to render a decree which

11In Johnson, the district court found that the Hales had 
overtly discriminated against the Plaintiff on the basis of their 
race (African-American) by refusing to allow them to rent or 
inspect the advertised rental units. Because the landlord was 
polite”, and since there was only one refusal, the lower court 
improperly concluded that compensatory damages were unnecessary; 
the appellate court reversed and remanded for entry of 
‘appropriate damages”.

37



will, so far as possible, eliminate the discriminatory effects of 
the past as well as bar like discrimination in the future”. 

Albermarle Paper Co. v. Moody, 42 2 U.S. 405, 45 L.Ed.2d 280

(1975). Where a fair housing violation has been shown, “a 

district court has broad and flexible equitable powers to fashion 

a remedy that will fully correct past wrongs.” Atkins v.

Robinson, 545 F .Supp. 852, 889 (E.D. Va. 1982), aff'd, 733 F.2d

318 (4th Cir. 1984); see also Clients' Council v. Pierce, 711 

F.2d 1406, 1425-26 (8th Cir. 1983); Marable v. Walker, 704 F.2d 

1219, 1221 (11th Cir. 1983); Gautreaux v. Chicago Housing 

Authority, 690 F.2d 601, 609 (7th Cir. 1982), cert. denied, 461 

U.S. 961 (1983) .

Moreover, equitable relief is warranted upon a finding of a 

violation of the Fair Housing Act. 42 U.S.C. § 3613(c), 3614(d); 

Banai v. Secy. U.S. Dept, of Housing, 102 F.3d 1203, 1206 n. 2.

(11th Cir. 1997) (on a finding of a violation of the Act "... the 

district court may order appropriate equitable relief ...”.)

While refusing to grant a post trial hearing on injunctive 

relief to Plaintiffs, the lower court received hearsay “evidence” 

contained solely in Landlord's post trial brief to erroneously 

conclude that Landlords were not presently discriminating and 
found that injunctive relief was inappropriate (A955).

It is erroneous to automatically deny injunctive relief on 
the ground that the discriminatory conduct has ceased. As stated

38



in U.S. v. Hunter, 459 F.2d 205 (4th Cir. 1972) : “An injunction

should not be refused upon the mere ipse dixit of a defendant 

that not withstanding his past misconduct, he is now repentant 
and will ... abide by the law.”

Likewise, declaratory relief, apart from injunctive relief 

should not be denied even where it is concluded that injunctive 

relief is not necessary. Super Tire Engineering Co. v. McCorkle,

416 U.S. 94 S.Ct., 1694, 40 L.Ed. 1 (1974) (a district court had

a duty to decide the merits of the declaratory request 

irrespective of its conclusions as to the issuance of the 
injunction) .

In this case, the lower court denied injunctive and 

declaratory relief without a hearing stating that Plaintiffs 

waived these issues and that the discriminatory conduct would not 

recur. There was no basis for the court's conclusion that 

Plaintiffs “waived” injunctive and declaratory relief.

Plaintiffs' request for declaratory, equitable, and injunctive 

relief was specifically set forth in their complaint and pretrial 

statement. The court abused its discretion in concluding 

Landlords “were not currently discriminating”, given Landlord 

wife's past conduct and her brazen denials that she discriminated 

on the basis of race. Under such circumstances, at a minimum, 

the Alexanders, and the FHP were entitled to a declaratory 

judgment order declaring Landlords' conduct to be in violation of 

The Fair Housing Act, enjoining such conduct in the future, and

39



requiring affirmative steps to overcome the effects of such 
discrimination.12

A. The Denial of Injunctive and Declaratory- 
Relief to Plaintiffs was an Abuse of Discretion 

not Supported by any Waiver of Record.

After the jury's verdict that the Fair Housing Act was 

violated, the court was required to enter a declaratory judgment 

in favor of each individual Plaintiff and FHP, and to hold a 

hearing on injunctive relief.13 On post-trial motions, the court 

reversed itself and entered a judgment as a matter of law for 

Fair Housing Partnership, refused to enter a declaratory 

judgment, refused to schedule a hearing on injunctive relief and 

refused to award costs in favor of any Plaintiff. Plaintiffs 

were shocked to receive the court's order dismissing the claims 

for injunctive and declaratory relief on grounds that Plaintiffs 

had somehow “waived” their claims to injunctive and declaratory 
relief .

There is no waiver of the claims for injunctive and

12
Such relief as requiring Landlords to include in its 
advertisements a notice that it abided by the fair housing laws 
or to advertise in minority communities would have been 
appropriate. Likewise, declaratory relief would have helped 
remedy the harm done to the FHP's mission of achieving fair 
housing opportunities in Pittsburgh by declaring Landlords' 
conduct unlawful.

13

See, e.g. Gunby v. Pa. Electric Co., 840 F.2d 1008 (3rd Cir.
1988) a 42 U.S.C. 1981 and Title VII case describing the common 
Practice where claims for legal relief under 42 U.S.C. 1981 are 
first decided by the jury, and claims for equitable relief under 
Title VII are then determined by the court.

40



declaratory relief of record here. The lower court found that 

Plaintiffs had indeed included these claims in the Complaint and 

Pretrial Narrative Statements. At the pretrial conference, the 

district court asked the pro forma routine questions as to length

of trial and number of witnesses. The court did not ask whether 

Plaintiffs intended to waive injunctive and declaratory relief; 

at no time did Plaintiffs volunteer to dismiss these claims. At 

no time did the court issue a written Rule 16 pretrial order 

stating that it was dismissing all claims for injunctive and 

declaratory relief due to some action or inaction of Plaintiffs.

If it had, Plaintiffs would have received proper notice that the 

court intended to rule against them on “waiver” grounds.

In ruling on Plaintiffs' motion for declaratory judgment, 

the lower court is, of course, bound by the jury's findings of 

fact as to violations of the Fair Housing Act having been 

committed. Defendants did not move for summary judgment, 

judgment as a matter of law, or directed verdict on Plaintiffs' 

claims for declaratory or injunctive relief, or argue that, as a 

matter of law, the record was insufficient to support such 

claims. Landlord has thus waived its rights to challenge the 

sufficiency of the evidence to support the court's entry of 

declaratory or injunctive relief.

The court's conclusion that Plaintiffs somehow “waived” 

claims for injunctive and declaratory relief is totally devoid of 

any support in the record. On these facts, the lower court's

41



refusal to grant declaratory relief and an injunction is an abuse 

of discretion.

V. Refusal to Admit Evidence of Landlord's 
Discrimination to Other Blacks is Abuse Of Discretion

Plaintiffs proffered the deposition of Steven Denson, an 

Oklahoma resident, taken for trial. A651. This eyewitness, a 

housing coordinator for Carnegie Mellon University, claimed that 

Landlord Wife discriminated against black students at Darlington 

A652-653 and falsely told them, too, that the apartment was 

“unavailable.” A653. The lower court refused to allow the Denson 
deposition into evidence.14

Plaintiffs sought applicant information in their Request 

for Production of Documents and by deposition subpoenas duces 

tecum to Landlords. Counsel Mitchell called Defendants, Counsel 

Joseph McHugh and requested that he supply address and phone 

numbers for Steve Denson, and the 2 “colored” students Michael 

Bowen and Chris Snow, whom Maria Riga claimed had applied to 

Darlington. Defendants' Counsel McHugh refused, claiming that

14After refusing the Denson evidence at trial, the court 
referenced in its opinion two post trial hearsay declarations 
solicited by Landlords from two current black tenants at their 
other Section 8 properties. The opinion stated inter alia that 
Plaintiffs were not entitled to injunctive relief because the 
jury had not found that the violations committed by Landlords 
were 'outrageous'. Since the court had refused to submit 
Punitive damages to the jury, the court had no rational basis 
whatsoever for inferring that the jury's zero actual damages 
award meant that Landlords' conduct was not “outrageous”. The 
court also found injunctive relief inappropriate because 
landlords “were not currently discriminating”, based on the black 
Section 8 tenants' hearsay declarations.

42



Denson and the 2 blacks were irrelevant as they had not been 

shown Darlington. Maria Riga then testified at trial that they 

had.

Denson was an eyewitness to landlord wife's discriminatory 

behavior towards blacks at Darlington. Denson Deposition, Ex. 34,

A.681-723. His testimony rebuts Landlord Wife's claims of 

nondiscriminatory treatment, and supports liability for punitive 

damages. Landlords cannot plead surprise,, as their counsel had 

interviewed15 Mr. Denson prior to his deposition. A685.

The lower Court justified the exclusion of Mr. Denson in 

its post trial opinion on a ground never raised by Landlords, 

“unfair surprise” to Landlords (because Plaintiffs had listed 

only Denson's name, not also his address, in their pretrial.) But 
Landlords cannot claim “surprise” where their own counsel had 

concealed this witness' identity from Plaintiffs.

In Meyers v. Pennypack Woods, 559 F.2d 894, (3rd Cir. 1977

this court cautions that the remedy for a “surprise” witness is 

not to bar the witness, but to to afford the opponent a 

reasonable opportunity to investigate the court's refusal to 

admit the Denson testimony is an abuse of discretion. Here there

15Plaintif f s ' counsel, Mitchell asked for the Denson 
information; Defendants' counsel, McHugh stated that Landlord- 
wife had not shown Darlington to “Steve and the two blacks”. In 
reliance on McHugh's statement, Plaintiffs chose not to file a 
motion to compel the Denson information, as the court had ruled 
as law of the case that only events at Darlington were relevant 
to proof of discrimination.

43



was no bad faith on the part of Plaintiff , see Clark v. Pa.

R.R. Co., 328 F .2d 591 (2d Cir. 1964), cert, denied, 377 U.S.

1006, 84 S. Ct. 1943, 12 L. Ed. 2d 1054 (1965); no ability of

Plaintiff to have discovered the witness earlier, see Hunt v. Pa.

R.R. Co., 41 F.R.D. 349 (E.D. Pa. 1967); a valid excuse of

Defendants' refusal to provide the witness address to Plaintiffs, 

Thompson v. Calmar Steamship Corp., 331 F.2d 657, 662 (3d Cir.

1964); and no wilful failure of Plaintiffs to identify the 

witness. Taggart v. Vermont Transportation Co., 32 F.R.D. 587

(E.D. Pa. 1963), affirmed 325 F.2d 1022 (3d Cir. 1964) or intent

by Plaintiffs to mislead or confuse Landlords. Pakech v.

American Export Tsbrandtsen Lines, Inc., 69 F.R.D. 534 (E.D. Pa.

1967) . Reading the short deposition of Mr. Denson would not

disrupt the orderly and efficient trial of the case .

The exclusion of critical evidence is an "extreme" 

sanction, Dudley v. South Jersey Metal, Inc., 555 F.2d 96, at

99 (3d Cir. 1977), not normally imposed by the court absent a

showing of willful deception or "flagrant disregard" by

Plaintiffs. No such showings were made here. The district court

abused its discretion in excluding Mr. Denson.

VI. The Trial Court Abused its Discretion by 
Denial of Costs to Plaintiffs, as Prevailing Parties

Ronald Alexander testified that he brought this case 

because he thought he had been treated in a discriminatory manner

44



(A575) . The jury vindicated this belief by its finding Landlords 

to have violated the law. Plaintiffs filed this suit as a matter 

of principle to vindicate their unlawful treatment and the public 

interest in fair housing practices. There was no claim for 

substantial compensatory damages, either in pleadings or during 

the jury trial. Plaintiff, Ronald Alexander, lost 5 days of 

wages from his job (A577-578) to testify in this litigation. 

Plaintiffs' counsel and Fair Housing Partnership spent thousands 

of their own dollars for testers, private detectives, trial 

costs, and deposition expenses to prove that Landlords were 

engaging in a pattern and practice of lying to blacks and refuse 

to show their properties or return phone calls.

Following the jury's verdicts of violations of the Fair 

Housing Act in favor of Plaintiffs, each filed a Bill of Costs 

under Rule 54(d) and moved for costs to be taxed in their favor 

as a matter of course, as prevailing parties (A921). Rule 54 

provides, “Except when express provision therefor is made either 
in a statute of the United States or in these rules, costs other 

than attorney's fees shall be allowed as a matter of course to 

the prevailing party16 unless the court otherwise directs...”

16

"Prevailing party” has the same meaning under the Fair Housing 
Act as it does under 42 U.S.C. §1988; see 42 U.S.C. §3602(o) .
The standard for determining prevailing party status under Title 
VII under 2000e-5(k)is the same as 42 U.S.C. §1988. Brown v. 
Borough of Chambersburg, 903 F.2d 174, 177 n.l (3d Cir. 1990). A 
finding that Mr. and Mrs. Riga committed a violation of the Fair 
Housing Act was rendered by the jury. This "changes' Landlord's 
legal status for the worse, as the Rigas are now subject to

45



Prevailing parties are presumptively entitled to costs, see Delta

Air Lines, Inc. v. August, 450 U.S. 346, 352, 67 L .Ed. 2d 287,

101 S .Ct. 1146 (1981) but the rule does not assist the court in

determining who is a prevailing party.

The district court here overlooked the jury's finding of a 

violation, and denied each Plaintiffs' motion to tax costs to 

which Plaintiffs, as prevailing party, were absolutely entitled 

under 42 U.S.C. §3613 (c) (2) . This was an abuse of discretion 

under New Jersey Coalition. One who proves a violation of Fair

Housing rights is absolutely entitled to an award of costs. The 

court found that Fair Housing Partnership was a “prevailing 

party”, but then refused to tax costs in favor of FHP. As the 

Third Circuit has noted, The costs provision of the Fair Housing 

Act, which sounds fully discretionary “...the court, in its 

discretion, may allow the prevailing party, other than the United 

States, a reasonable attorney's fee and costs... actually is 

not... In fact, a district court's discretion not to grant 

attorney's fees and costs in civil rights cases is tightly 

cabined.” Id. at 225. Here, the district court abused its

discretion. It found no “special circumstances” whatsoever to

debarment from federally funded HUD Title VIII programs as guilty 
of race discrimination. They are also liable for enhanced 
Penalties under federal and state housing law as 'known 
violators'. This changes the 'legal relationship' of the 
Landlords to the community for the worse, and penalizes them more 
severely for future violations.

46



justify denying an award of costs to Plaintiffs, and then denied 

all costs to all Plaintiffs.

Appellants seek remand for a new trial on punitive damages 

against both Landlords, and a decision holding that actual 

damages are not a prerequisite for an award of punitive damages 

in federal civil rights litigation under Smith v. Wade.

Plaintiffs urge this Court to find that the lower court committed 

plain error in requiring the jury to award actual damages and 

find legal harm as prerequisites for an award of nominal damages, 

and directing the lower court to enter an award of nominal 

damages and costs to each plaintiff, as prevailing parties, and 

awarding appropriate compensatory damages and out-of-pocket 

expenses. The lower court should be directed to enter 

declaratory judgment on behalf of each Plaintiff against both 

Landlords, and granting injunctive relief against Landlords.

The testimony of Steven Denson is admissible at the new 

trial on punitive damages and injunctive relief.

Appellants seek an order awarding costs to each Plaintiff.

CONCLUSION

Respectfully submitted,

Timothy P. O'Brien, Esquire 
PA I. D. #22104

47



CERTIFICATE OF BAR MEMBERSHIP

I hereby certify that Timothy P. O'Brien, Esquire, and 

Caroline Mitchell, Esquire, counsel for the Appellants, Ronald 

and Faye Alexander, and the Fair Housing Partnership of Greater 

Pittsburgh, are admitted to the practice before the Third Circuit 

Court of Appeals, and are in good standing.

Caroline Mitchell, Esquire

vii



DISCLOSURE OF CORPORATE AFFILIATIONS AND FINANCIAL INTERESTS.

Ronald Alexander and Faye Alexander, and the Fair Housing 

Partnership of Greater Pittsburgh, Inc. are not subsidiaries or 

affiliates of a publically owned corporation, nor is there a 

publically owned corporation, not a party to this appeal, that 

has a financial interest in the outcome.

Timothy P. O'Brien, Esquire

viii



IN THE UNITED STATES DISTRICT COURT |BY:_
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

RONALD ALEXANDER, FAYE )
ALEXANDER and the FAIR }
HOUSING PARTNERSHIP OF )
GREATER PITTSBURGH, INC., )

)
Plaintiffs, )

)
vs. ) Civil Action No. 96-49

)
JOSEPH RIGA and MARIA A. RIGA, ) 
a/k/a CARLA AGNOTTI, )

)
Defendants )

MEMORANDUM

I
Before the court are the following post-trial motions 

filed by the parties in this action brought pursuant to the Fair 

Housing Act (FHA), Title VIII of the Civil Rights Act of 1968, 42 

U.S.C. § 3601 et seq. :1

1. Plaintiffs' Motion for Judgment Notwithstanding the 

Verdict or for a New Trial on Damages (Document No. 82);

2. Plaintiffs' Motion for Hearing on Injunctive and 

Equitable Relief (Document No. 83);

3. Plaintiffs' Motion for Award of Attorneys' Fees, 

Costs and Expenses in their Favor as Prevailing Parties (Document 
No. 84) ;

Before the commencement of trial, plaintiffs abandoned the 
claims they had asserted against defendants under Sections 1981 
ar>d 1982 of the Civil Rights Act of 1866, 42 U.S.C. §§ 1981 and 
1982 .



4. Plaintiffs' Motion to Tax Costs against Defendants 

(Document No. 85) ;

5. Plaintiffs' Rule 60 Motion Nunc Pro Tunc to Correct 

Error in Judgment and for Rule 59(e) Relief Nunc Pro Tunc from 

Judgment (Document No. 96) ; and

6. Defendants' Motion to Tax Costs Against Plaintiffs 

(Document No. 87 ) .

After consideration, and for the reasons set forth 

below, the motions will be denied, with the exception of 

plaintiffs' Rule 60 Motion Nunc Pro Tunc to Correct Error in 

Judgment and for Rule 59(e) Relief Nunc Pro Tunc from Judgment, 

which will be granted in part and denied in part.

II

The procedural history of this case may be summarized 

as follows:

On January 11, 1996, plaintiffs, Ronald Alexander, Faye 

Alexander and the Fair Housing Partnership of Greater Pittsburgh, 

Inc. (FHP), filed this civil action against defendants, Joseph 

Riga and Maria A. Riga. In their complaint, plaintiffs sought 

damages, as well as equitable and injunctive relief, for alleged 

race discrimination. Specifically, plaintiffs alleged that 

defendants discriminated against the individual plaintiffs on the 

basis of their race in violation of the FHA in connection with 

the attempts of Mr. and Mrs. Alexander to view a rental property

2



owned by defendants in the Squirrel Hill section of the City of 

Pittsburgh.2

Following an eight-day trial in May, 1998, a jury 

returned eight special verdicts. With respect to Mr. and Mrs. 

Alexander, the jury found that Mrs. Riga had discriminated 

against them in violation of the FHA. However, the jury found 

that the discriminatory conduct of Mrs. Riga was not a legal 

cause of harm to either Mr. or Mrs. Alexander, and awarded them 

no monetary damages.3 As to the FHP, the jury found that the 

discriminatory conduct of Mrs. Riga was a legal cause of harm to 

the FHP. However, the jury awarded no monetary damages to the 

FHP.4 Based on the special verdicts, the court entered judgment

2. The FHA prohibits discrimination in the sale or rental of 
housing, including the refusal to negotiate for the rental of, or 
otherwise make unavailable or deny, a dwelling to any person 
because of race; to discriminate against any person in the terms, 
conditions or privileges of rental of a dwelling because of race; 
or to represent to any person because of race that any dwelling
is not available for inspection, sale or rental when such 
dwelling is, in fact, so available. See 42 U.S.C. §§ 3604(a),
(b) and (d) .
3. Although both Mr. and Mrs. Riga were defendants at trial, the 
special verdicts that were submitted to the jury were limited to 
determining the liability of Mrs. Riga for discriminatory conduct 
because only Mrs. Riga was involved in the events leading to this 
lawsuit. Mr. Riga was in Italy at all relevant times. However, 
under the law of agency, as well as the fact that the duties 
imposed by the FHA are non-delegable, Mr. Riga would be liable 
for any compensatory or nominal damages resulting from his wife's 
discriminatory conduct in connection with the rental of their 
jointly owned apartments.
4. The issue of punitive damages had been bifurcated from the 
issues of liability and compensatory or nominal damages. After

(continued...)

3



in favor of defendants and against plaintiffs, together with 

costs, on May 26, 1988.

Ill
The court will discuss the parties' post-trial motions 

sequentially.

A, Plaintiffs' Motion for Judgment Notwithstanding the Verdict 
or for a New Trial on Damages

In this motion, plaintiffs assert that a judgment

notwithstanding the verdict,5 as well as the additur of nominal

damages in the amount of one dollar for each plaintiff, is

required based on evidence that each plaintiff sustained actual

harm. In the alternative, plaintiffs assert that a new trial on

damages is required because (1) the court erred in refusing to

instruct the jury that an award of nominal damages in favor of

each plaintiff was required based on the evidence; (2) the court

erred in refusing to charge the jury on the issue of punitive

damages, despite the jury's failure to award compensatory

damages; (3) the court erred in refusing to instruct the jury

that an award of compensatory and exemplary damages in favor of

the FHP was required based on the evidence; and (4) the court

erred in refusing to admit the testimony of Steve Denson, Michael

4- (. . . continued)
the return of the jury's special verdicts, the court declined to 
Put the issue of punitive damages to the jury.

5- As noted by defendants, plaintiffs should have filed this 
Notion under Rule 50(b) of the Federal Rules of Civil Procedure, 
Seeking a judgment in their favor as a matter of law.

4



Bowen and Michael Snow regarding other alleged acts of 

intentional race discrimination by Mrs. Riga against black 

applicants for apartments.

1. Turning first to the issue of nominal damages, 

during the charge conference on May 21, 1998, Caroline Mitchell, 

Esquire, one of plaintiffs' co-counsel, requested the inclusion 

of a charge on nominal damages in the court's instructions to the 

jury. The request was granted, and the court included an 

instruction on nominal damages in its proposed charge, which was 

provided to counsel in its entirety prior to the time the jury 

was charged.

The jury was instructed, in relevant part, as follows:
★  *  *

...Finally, in connection with the issue of damages, if 
you find that the plaintiffs are entitled to verdicts 
in their favor in accordance with these instructions, 
but you do not find that the plaintiffs have sustained 
substantial actual damages, then you may return a 
verdict for the plaintiffs in some nominal sum, such as 
one dollar on account of actual damages....

* * *

Neither Ms. Mitchell nor her co-counsel, Timothy P. O'Brien, 

Esquire, objected to the form of the charge on nominal damages 

before or after it was given to the jury, despite the fact that 

the charge permitted, but did not require, the jury to award 

nominal damages if the jury found that plaintiffs did not sustain 

substantial actual damages. The first time the language of the

5



charge on nominal damages was challenged by plaintiffs was in a 

post-trial motion, after the jury had been discharged.

Plaintiffs argue that the holding of the Supreme Court 

of the United States in Carey v. Piphus. 435 U.S. 247, 98 S.Ct. 

1042, 55 L.Ed.2d 252 (1978), requires an award of nominal damages 

when a fact finder determines that a violation of an "absolute 

right," such as the right to be free from race discrimination, 

has occurred without proof of actual injury. In response to this 

argument, defendants take the position that the "absolute right" 

referred to in Carey, a denial of procedural due process, was 

"absolute" because the denial was a constitutional tort in 

violation of 42 U.S.C. § 1983, and that the violation of a 

statutory right, such as a violation of the FHA, is not a 

violation of an "absolute right," entitling the victim to nominal 

damages in the absence of proof of injury.

In support of their position, defendants cite Walker v. 

Anderson Elec. Connection. 944 F.2d 841 (8th Cir.), cert. denied, 

506 U.S. 1078, 113 S.Ct. 1043, 122 L.Ed.2d 352 (1998), a case 

involving sexual harassment in violation of Title VII of the 

Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000(e) ei 

seep, in which the United States Court of Appeals for the Eighth 

Circuit stated:
* * ★

Walker argues that Carev v. Piphus, 435 U.S. 247,
98 S.Ct. 1042, 55 L.Ed.2d 252 (1978), requires the 
automatic award of nominal damages upon the finding of

6



a Title VII violation regardless of Rule 51 and the 
federal Courts' dislike of additur. Carey does not, 
however, address the issue of nominal damages in a 
Title VII action.

Carey involved interpretation of 42 U.S.C. § 1983, 
(footnote omitted) which provides a remedy for 
violations of constitutional rights by persons acting 
under color of state law. Emphasizing the absolute 
nature of constitutional rights and "the importance to 
organized society that those.rights be scrupulously 
observed," Carey, 435 U.S. at 266, 98 S.Ct. at 1053, 
the Court mandated the award of nominal damages upon 
the finding of a procedural due process violation even 
where no actual injury had been shown. By contrast, 
this case involves, not a violation of constitutional 
rights, but merely, a violation of purely statutory 
rights under Title VII. Nothing in Carey mandates the 
award of nominal damages for statutory violations, 
(footnote omitted).

★ ★ ★

944 F. 2d at 845.

After consideration, the court believes that the 

distinction made by the Eighth Circuit in Walker concerning 

statutory violations as opposed to violations of "absolute 

rights" confirmed by the Constitution is a valid one, and that 

the violation of the Alexanders' rights under the FHA did not 

mandate an award of nominal damages in favor of them or the FHP.6

6. In connection with plaintiffs' motion for the additur of one 
dollar in nominal damages for each plaintiff, on September 21, 
1998, plaintiffs' co-counsel, Mr. O'Brien, sent a letter to the 
court to bring to the court's attention the decision of the 
United States Court of Appeals for the Second Circuit in Gibeau,
Y. Nel1is. 18 F.3d 107 (2d Cir.1994). In Gibeau, a criminal
contemnor, who was incarcerated, brought a Section 1983 action 
against a jail officer, alleging excessive use of force. The 
district court entered judgment on the jury verdict, finding that 
the officer had used excessive force, but awarding no damages.

(continued...)

7



In any event, it appears to the court that plaintiffs 

have waived their right to assert a post—trial claim of error 

based on the form of the nominal damage charge given to the jury 

by failing to object to the charge, as written, either before or 

after the charge was given to the jury. When a party fails to 

make a timely objection to a jury instruction, the objection is 

waived and the instruction is reviewed only for "plain error."

In riyie v. Medical College of Pennsylvania. 937

F.2d 876 (3d Cir.1991), the United States Court of Appeals for 

the Third Circuit addressed the issue of plain error, stating:

* * *

Plain errors are those errors that "seriously 
affect the fairness, integrity or public reputation of

6. (...continued)
On appeal, the Second Circuit held, inter alia, that the district 
court should have instructed the jury that it was required to 
award nominal damages if it found that the plaintiff's Eighth 
Amendment rights were violated. The Second Circuit then remanded 
the case to the district court for the entry of nominal damages 
in favor of the plaintiff, concluding that such action would not 
impermissibly invade the province of the jury because nominal 
damages were mandatory under the circumstances of that case.

Defense counsel, Thomas M. Hardiman, Esquire, responded 
to Mr. O'Brien's letter on September 24, 1998, noting that the 
decision of the Second Circuit in Gibeau is inapposite because 
the case involved a claim under Section 1983 for the violation of 
a constitutional right by a state actor, not a statutory claim 
against a private citizen. Based on the court's conclusion that 
the distinction made by the Eighth Circuit in Walker concerning 
statutory violations as opposed to violations of "absolute 
rights" under the Constitution is a valid one, the decision of 
the Second Circuit in Gibeau does not alter the court's 
conclusion that an award of nominal damages is not mandated in 
this case.

8



judicial proceedings." United States v. Atkinson. 297 
U.S. 157, 160, 56 S.Ct. 391, 392, 80 L.Ed.2d 555 
(1936). They are errors that "undermine the 
fundamental fairness of the trial and contribute to a 
miscarriage of justice." United States v. Young. 470 
U.S. 1, 16, 105 S.Ct. 1038, 1047, 84 L.Ed.2d 1 (1985). 
The Supreme Court has cautioned that the doctrine is to 
be used "sparingly," United States v. Fradv. 456 U.S. 
152, 163 n. 14, 102 S.Ct. 1584, 1592 n. 14, 71 L.Ed.2d 
816 (1982), and only where the error was sure to have 
had "an unfair prejudicial impact on the jury's 
deliberations," Young, 470 U.S. at 16 n. 14, 105 S.Ct. 
at 1047 n. 14.

★ ★ ★

937 F. 2d at 881-882.

Applying this standard in the present case, the court simply 

cannot conclude that the nominal damage charge given to the jury 

"undermine[d] the fundamental fairness of the trial and 

contribute[d] to a miscarriage of justice," or that the charge 

had "an unfair prejudicial impact on the jury's deliberations." 

Therefore, the court declines to grant plaintiffs' request for 

judgment notwithstanding the verdict or for the additur of one 

dollar in nominal damages for each plaintiff.

2. As to the issue of punitive damages, such damages 

may be awarded for violations of federal law when a defendant's 

conduct is "motivated by evil motive or intent, or when it 

involves reckless or callous indifference to the federally 

protected rights of others." Samaritan Inns. Inc, v. District of 

Columbia, 114 F.3d 1227, 1239 (D.C.Cir.1997), quoting. Smith v. 

Wade, 461 U.S. 30, 56, 103 S.Ct. 1625, 1640, 75 L.Ed.2d 632 

(1982) . As noted in footnote 4, the issue of punitive damages

9



was bifurcated and was not submitted to the jury with the issues 

of liability and compensatory or nominal damages. After the jury 

returned its verdicts awarding neither compensatory nor nominal 

damages to any plaintiff, the court declined to submit to the 

jury the issue of punitive damages and the jury was discharged.

The court believed, and continues to believe, that, by 

its refusal to award compensatory or nominal damages, the jury 

did not consider the conduct of Mrs. Riga to have been the result 

of an evil motive or intent or to have involved reckless or 

callous indifference to the federally protected rights of 

plaintiffs. Moreover, as to Mr. and Mrs. Alexander, the jury 

found that Mrs. Riga's conduct was not a legal cause of harm to 

them. After the jury verdicts were returned, the court concluded 

that, because the jury had found that Mrs. Riga's discrimination 

did not cause harm to the Alexanders, it would be inappropriate 

to permit the jury to award punitive damages to them.

The court agrees with defendants that, in order to 

recover punitive damages, the Alexanders should be required to 

prove more than intentional discrimination by Mrs. Riga.

Otherwise, punitive damages would follow as a matter of course in 

every case in which intentional discrimination were established, 

contrary to the general principle that punitive damages 

"represent a limited remedy, to be reserved for special 

circumstances." Savarese v. Aariss, 883 F.2d 1194, 1205 (3d 

Cir.1989). (Defendants' Response to Plaintiffs' Motion for

10



Judgment Notwithstanding the Verdict or for a New Trial on 

Damages, p. 12) .

According to the court's recollection of the trial 

testimony and the court's trial notes, Mrs. Alexander testified 

that Mrs. Riga's conduct did not cause her to cry, to become ill, 

to suffer any emotional distress or to.seek medical or 

psychological care, and Mr. Alexander testified that, although he 

suffered emotional distress as a result of Mrs. Riga's conduct, 

he sought no medical attention or psychological counseling.

Based on the Alexanders' own testimony, the court agrees with 

defendants that there was no evidence suggesting outrageous 

conduct on the part of Mrs. Riga "beyond that which may attach to 

any finding of intentional discrimination." (Defendants'

Response to Plaintiffs' Motion for Judgment Notwithstanding the 

Verdict or for a New Trial on Damages, pp. 13-14). Accordingly, 

the court believes that the evidence offered by plaintiffs at 

trial did not support an award of punitive damages in the 

Alexanders' favor.

With respect to the FHP, the jury did find that Mrs. 

Riga's discrimination was a legal cause of harm to the FHP, but 

declined to award damages. There was no evidence, however, that, 

prior to the initiation of this action, Mrs. Riga was aware of 

the existence of the FHP or its involvement in the matter during 

the period in which the discriminatory conduct occurred. Because 

of her lack of awareness of the involvement of the FHP, Mrs. Riga

11



could not have acted with an evil motive or intent toward the 

FHP, or with reckless or callous indifference to its federally- 

protected rights. Further, when the jury verdicts were returned, 

the court believed it would be inappropriate to permit an award 

of punitive damages in favor of the FHP, in light of the fact 

that the jury had awarded neither compensatory nor nominal 

damages to it, as well as the failure of Mr. and Mrs. Alexander 

to offer any evidence suggesting outrageous conduct on the part 

of Mrs. Riga "beyond that which may attach to any finding of 

intentional discrimination." Accordingly, the court declines to 

grant plaintiffs' request for a new trial based on the court's 

alleged error in refusing to charge the jury on the issue of 

punitive damages.

3. Regarding the court's refusal to instruct the jury 

that an award of compensatory damages in favor of the FHP was 

required based on the evidence, the court believes that a 

reasonable jury could have concluded that the FHP was not 

entitled to recover any damages as a result of Mrs. Riga's 

discriminatory conduct. Prior to the involvement of the FHP in 

this case, Mr. Alexander had procured evidence of discrimination 

through the use of his own "tester," Robin McDonough, a white, 

female friend.7 In addition, Ms. Mitchell, one of plaintiffs'

7- "Testers" are individuals who, without any intent to rent or 
Purchase a home or apartment, pose as renters or purchasers for 
the purpose of collecting evidence of discriminatory housing

(continued...)
12



co-counsel, employed a private investigator, Jeffrey Lang, to act 

as a "tester" to gather evidence of discrimination against Mrs. 

Riga. Under the circumstances, the jury may have concluded that 

the services of the FHP were insignificant or of no value in this 

case, and that, therefore, the FHP should not recover any 

compensatory damages.

Further, with respect to the testimony offered by the 

FHP through Andrea Blinn, its Executive Director, concerning its 

alleged damages, which consisted of "tester" fees, Ms. Blinn's 

time and the time of in-house counsel for the FHP, defendants 

elicited testimony from Ms. Blinn on cross-examination regarding 

the substantial federal funding received by the FHP in 1995.

Based on this testimony, a reasonable jury could have concluded 

that the FHP sustained no actual damages as a result of 

investigating Mrs. Riga's conduct. Accordingly, the court 

declines to grant plaintiffs' request for a new trial based on 

the court's alleged error in refusing to charge the jury that it 

was required to award compensatory damages in favor of the FHP 

based on the evidence.

4. Finally, in connection with plaintiffs' assertion 

that the court erred by excluding the testimony of Steve Denson, 

Michael Bowen and Michael Snow, this testimony was apparently to

7 • ( . . .continued)
Practices. Havens Realty Corp. v. Coleman. 455 U.S. 363, 102 
S-Ct. 1114, 71 L .Ed.2d 214 (1982).

13



be proffered by plaintiffs to show other intentional acts of race 

discrimination by Mrs. Riga. Specifically, in their amended 

pretrial statement, plaintiffs state: "Michael Snow will testify 

that he and other CMU students Michael Bowen (black) and Steven 

Denson (native american) were shown an apartment in Squirrel Hill 

by Maria Riga, and were treated less favorably when the Rigas 

learned that one of the roommates (Bowen) would be a black man. 

Bowen and Snow will testify that the students were so troubled by 

such behavior that it was felt that the Rigas should not be 

allowed to participate in the campus housing program due to their 

discriminatory attitude against blacks." (Plaintiffs' Amended 

Pretrial Statement, p. 12).

With respect to Mr. Denson, the court notes, as an 

initial matter, that, although Mr. Snow and Mr. Bowen were listed 

as potential liability witnesses in plaintiffs' amended pretrial 

statement, Mr. Denson was not so listed. In any event, the 

present case was a disparate treatment, not a disparate impact, 

case. Therefore, the court ruled that the deposition testimony 

of Mr. Denson should not be admitted in evidence pursuant to 

federal Rule of Evidence 404(b), because the court believed that 

the relevance of such testimony would be substantially outweighed 

hy the danger of unfair prejudice under Federal Rule of Evidence 

403. Regardless whether the exclusion of the testimony of Mr. 

Denson was proper under the Federal Rules of Evidence, his 

testimony would have been relevant only to the issue of Mrs.

14



Riga's discriminatory conduct, and not to the issue of the harm 

legally caused to the Alexanders by such conduct or to the issue 

of damages. For this reason alone, the exclusion of the 

testimony of Mr. Denson could not justify the grant of a new 

trial in this case.

As to Mr. Snow and Mr. Bowen, the court does not 

believe that plaintiffs proffered their testimony at trial. 

However, if their testimony was also excluded, it was for the 

same reason as the exclusion of Mr. Denson's testimony and does 
not justify a new trial in this case.

B. Plaintiffs' Motion for Hearing on Injunctive and Equitable 
Relief

On May 28, 1998, six days after the jury's verdicts 

were returned in this case, and the jury was discharged, 

plaintiffs filed their Motion for Hearing on Injunctive and 

Equitable Relief. Although plaintiffs had requested injunctive 

and equitable relief in their complaint and in their original and 

amended pretrial statements, at no time during the pretrial 

conferences with the court or during the trial itself, did 

plaintiffs' attorneys refer to their requests for injunctive and 

equitable relief. Based on the failure of plaintiffs' counsel to 

raise the issue of injunctive and equitable relief prior to the 

conclusion of the trial of this case, the court declines to grant 

their request for such relief.

15



Assuming, arguendo, that plaintiffs had timely raised 

the issue of equitable and injunctive relief, the court 

nevertheless would decline to grant such relief based on the 

conclusion that it is unnecessary. First, the conduct of Mrs.

Riga that was the subject of plaintiffs' discrimination claims 

occurred in 1995. No evidence was offered of any such 

discriminatory conduct since 1995, and the court believes that 

there is very little risk of recurrent violations of federal law 

by Mrs. Riga that would warrant injunctive relief. Second, in 

the court's opinion, it is significant that the Rigas have rented 

units in their apartment buildings to African Americans since the 

events giving rise to this lawsuit as evidenced by the affidavits 

of Vera Jefferson and Dorothy Williamson, which were submitted by 

defendants in opposition to plaintiffs' Motion for Hearing on 

Injunctive and Equitable Relief. Under the circumstances, this 

post-trial motion will also be denied.

C. Plaintiffs' Motion for Award of Attorneys' Fees, Costs and 
Expenses in their Favor as Prevailing Parties

Next, plaintiffs assert that they are prevailing 

parties in this action, and they seek an award of attorneys' fees

and costs under the FHA, which provides in relevant part:
★ ★ ★

§ 3613 Enforcement by private persons
★ * *

(c) Relief which may be granted

16



* ★ *

(2) In a civil action under subsection (a) of this 
section, the court, in its discretion, may allow the 
prevailing party, other than the United States, a 
reasonable attorney's fee and costs....

42 U.S.C. § 3613(c)(2).

In turn, Section 3602(o) of the FHA provides that "prevailing 

party" has the same meaning as such term has in the Civil Rights 

Attorney's Fees Awards Act of 1976, 42 U.S,C. § 1988.®

In Farrar v. Hobby. 506 U.S. 103, 113 S .Ct. 566, 121 

L.Ed.2d 494 (1992), the Supreme Court of the United States 

discussed the standard to be applied in determining whether a 

civil rights plaintiff was a prevailing party in order to qualify 

for attorney's fees under Section 1988 as follows:
* * *

...to qualify as a prevailing party, a civil rights 
plaintiff must obtain at least some relief on the 
merits of his claim. The plaintiff must obtain an 
enforceable judgment against the defendant from whom 
fees are sought, Hewitt, supra, at 760, or comparable 
relief through a consent decree or settlement, Maher v. 
Gagne, 448 U.S. 122, 129 (1980). Whatever relief the 
plaintiff secures must directly benefit him at the time 
of the judgment or settlement. See Hewitt, supra. at 
764. Otherwise the judgment or settlement cannot be 
said to "affec[t] the behavior of the defendant toward

8. 42 U.S.C. § 1988 provides in relevant part:

"In any action or proceeding to enforce a provision of 
sections 1981, 1982, 1983, 1985, and 1986 of this 
title, title IX of Public Law 92-318 ..., or title VI 
of the Civil Rights Act of 1964 ..., the court, in its 
discretion may allow the prevailing party, other than 
the United States, a reasonable attorney's fee as part 
of the costs."

17



the plaintiff." Rhodes, supra, at 4. Only under these 
circumstances can civil rights litigation effect "the 
material alteration of the legal relationship of the 
parties" and thereby transform the plaintiff into a 
prevailing party. Garland, supra, at 792-793. In 
short, a plaintiff "prevails" when actual relief on 'the 
merits of his claim materially alters the legal 
relationship between the parties by modifying the 
defendant's behavior in a way that directly benefits 
the plaintiff....

★ ★ ★

....To be sure, a judicial pronouncement that the 
defendant has violated the Constitution, unaccompanied 
by an enforceable judgment on the merits, does not 
render the plaintiff a prevailing party. Of itself,
"the moral satisfaction [that] results from any 
favorable statement of law" cannot bestow prevailing 
party status. Hewitt. 482 U.S., at 762. No material 
alteration of the legal relationship between the 
parties occurs until the plaintiff becomes entitled to 
enforce a judgment, consent decree, or settlement 
against the defendant....

★ ★ ★

506 U.S. at 111-113, 113 S .Ct. at 573-574.

Based on the special verdicts returned by the jury in 

this case, as well as the court's determination that plaintiffs 

are not entitled to injunctive or equitable relief, the court 

concludes that plaintiffs are not prevailing parties. Simply 

put, this litigation did not effect a "material alteration of the 

legal relationship of the parties." The defendants' behavior has 

not been modified "in a way that directly benefits the 

plaintiffs." At best, the jury's special verdicts provided 

plaintiffs with "moral satisfaction," which is insufficient to 

bestow prevailing party status on them. Under the circumstances,

18



plaintiffs' Motion for Award of Attorneys' Fees, Costs and 

Expenses in their Favor as Prevailing Parties will be denied.

D. Plaintiffs' Motion to Tax Costs against Defendants

Because the court concludes that plaintiffs are not 

prevailing parties in this litigation for the reasons set forth 

above, the court will also deny their Motion to Tax Costs against 

Defendants.

E. Plaintiffs' Rule 60 Motion Nunc Pro Tunc to Correct Error in 
Judgment and for Rule 5 9 (e) Relief Nunc Pro Tunc from Judgment

As noted above in connection with the procedural

history of this case, the court entered a judgment in favor of

defendants and against plaintiffs on May 26, 1998 based on the

jury's special verdicts. That judgment reads as follows:

IT IS ORDERED AND ADJUDGED that, in accordance with 
the special verdicts returned by the jury on May 22, 
1998, judgment be, and hereby is, entered in favor of 
Defendants Joseph Riga and Maria A. Riga, a/k/a Carla 
Agnotti, and against the Plaintiffs Ronald Alexander 
and Faye Alexander and the Fair Housing Partnership of 
Greater Pittsburgh, Inc., together with costs.

(Document No. 80).

In their Rule 60 Motion Nunc Pro Tunc to Correct Error in 

Judgment and for Rule 59(e) Relief Nunc Pro Tunc from Judgment, 

plaintiffs seek "an order granting judgment as a matter of law 

for Plaintiffs, correcting the entry of judgment to reflect 

declaratory and nominal damages and costs for Plaintiffs, not 

Defendants, opening the entry of judgment and costs for 

defendants as prematurely granted, and continuing generally the

19



time within which Plaintiffs must file a Fee Petition until after 

a final order is entered disposing of Plaintiffs' post trial 

motions." (Document No. 96, p. 4).

After consideration, this post-trial motion of 

plaintiffs will be granted to the extent that an amended judgment 

will be filed, entering judgment in favor of the FHP and against 

defendants on the issue of liability under the FHA only and 

directing each party to bear their own costs. In all other 

respects, the judgment, as entered on May 26, 1998, will remain 

the same.9

F. Defendants' Motion to Tax Costs against Plaintiffs

Finally, with respect to defendants' Motion to Tax 

Costs against Plaintiffs, as noted above, the court, upon further 

consideration, concludes that the judgment entered on May 26,

1998 should be amended to direct that the parties bear their own 

costs.10 Because the jury found that Mrs. Riga's discriminatory 

conduct was not the legal cause of harm to the Alexanders and 

declined to award compensatory or nominal damages in favor of any 

plaintiff, defendants argue that they were the prevailing parties

9. The court's willingness to amend the judgment originally 
entered on May 26, 1998 in favor of defendants and against the 
FHP does not affect, in any way, the court's conclusions 
regarding the FHP's motion for nominal damages or motion for a 
new trial on compensatory and punitive damages or alter the 
court's conclusion that the FHP is not a prevailing party in this 
action.
10. Defendants seek to recover costs in the amount of $5,327.95 
from plaintiffs.

20



in this case and that they should be entitled to recover their 

costs in defending this action. However, in view of the jury's 

determination that Mrs. Riga did, indeed, violate the FHA by 

engaging in discriminatory conduct, the court believes that there 

should be some consequence to the Rigas for such conduct. 

Accordingly, regardless whether defendants were, technically, the 

prevailing parties as to the Alexanders, the court declines to 

exercise its discretion to award costs in favor of defendants and 

against the Alexanders.

An order follows.



IN THE UNITED STATES DISTRICT COURT 
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

RONALD ALEXANDER, FAYE )
ALEXANDER and the FAIR )
HOUSING PARTNERSHIP OF )
GREATER PITTSBURGH, INC., )

)
Plaintiffs, )

)
vs. ) Civil Action No. 96-49

)
JOSEPH RIGA and MARIA A. RIGA, ) 
a/k/a CARLA AGNOTTI, )

)
Defendants )

ORDER

AND NOW, this 9th day of October, 1998, in accordance 

with the foregoing memorandum, it is ORDERED as follows:

1. Plaintiffs' Motion for Judgment Notwithstanding the 

Verdict or for a New Trial on Damages (Document No. 82) is 

denied.

2. Plaintiffs' Motion for Hearing on Injunctive and 

Equitable Relief (Document No. 83) is denied.

3. Plaintiffs' Motion for Award of Attorneys Fees,

Costs and Expenses in their Favor as Prevailing Parties (Document 

No. 84) is denied.
4. Plaintiffs' Motion to Tax Costs against Defendants

(Document No. 85) is denied.
5. Plaintiffs' Rule 60 Motion Nunc Pro Tunc to Correct 

Error in Judgment and for Rule 59(e) Relief Nunc Pro Tunc from 

Judgment (Document No. 96) is granted in part and denied in part.

22



6. Defendants' Motion to Tax Costs Against Plaintiffs

(Document No. 87) is denied.

William L. Standish 
United States District Judge

cc: Caroline Mitchell, Esq.
3700 Gulf Tower 
707 Grant Street 
Pittsburgh, PA 15219

Timothy P. O'Brien, Esq. 
429 Forbes Avenue 
1705 Allegheny Building 
Pittsburgh, PA 15219

Thomas M. Hardiman, Esq. 
TITUS & MCCONOMY LLP 
Twentieth Floor 
Four Gateway Center 
Pittsburgh, PA 15222



AO 4SO ( R « v . S/85) Judgment In « Civil Ca«« ®

plntieh S ta te s  ^ its trtc t C ourt
WESTERN

DISTRICT OF PENNSYLVANIA
RONALD ALEXANDER, FAYE ALEXANDER 
and the FAIR HOUSING PARTNERSHIP 
OF GREATER PITTSBURGH, INC.

AMENDED
JUDGMENT IN A CIVIL CASE

v.
JOSEPH RIGA and MARIA A. RIGA, 
a/k/a CARLA AGNOTTI

CASE NUMBER: CA 9 6-49

[3  Jury Verdict. This action came before the Court for a trial by jury. The issues have been tried and the jury has rendered 
its verdict, b y  special verdicts.

D  Decision by Court. This action came to trial or hearing before the Court. The issues have been tried or heard and a 
decision has been rendered.

IT IS ORDERED AND ADJUDGED as follows:
1. The judgment entered by the court on May 26, 1998 is hereby 

vacated.

2. In accordance with the Special Verdicts returned by the jury 
on May 22, 1998, judgment is entered in favor of defendants and against 
plaintiffs Ronald Alexander and Faye Alexander.

3. In accordance with the Special Verdicts returned by the jury 
on May 22, 1998, judgment is entered in favor of plaintiff Fair Housing 
Partnership of Greater Pittsburgh, Inc. and against defendants as to 
liability under the Fair Housing Act. No damages are awarded in favor 
of said plaintiff.

4. The parties are to bear their own costs.

JUDGMENT IS HEREBY ENTERED ACCORDINGLY.



CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the within 

Brief of Appellants has been served upon the following counsel of 

record by first class mail, postage prepaid on the 27tn day of May, 

1999 :
Thomas M. Hardiman, Esquire 
Titus & McConomy LLP 
20th Floor, Four Gateway Center 
Pittsburgh, PA 15222-1207

Ti-mo-thy d? . O ' Brien, Esquire

XI



Certificate of Compliance

I, the undersigned, certify that this brief is in compliance 
with the line and word limitations of F.R.A.P. 28 and L.A.R.
28.0.

Timothy P. O'Brien, Esquire

\

xii