Alexander v. Riga Reply Brief of Appellants

    No. 98-3597 
No. 98-3622

IN THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

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

Appellants,
v.

JOSEPH RIGA , MARIA A. RIGA 

Appellees.

On Appeal From Judgment Entered In The United States District 
Court For The Western District Of Pennsylvania

REPLY BRIEF OF APPELLANTS

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

Attorney for Fair Housing 
Partnership of Greater 
Pittsburgh, Inc.
Appellant

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

Attorney for Ronald Alexander 
and Faye Alexander, Appellants 
and Fair Housing Partnership 
of Greater Pittsburgh



TABLE OF CONTENTS
REPLY BRIEF OF APPELLANTS

Table of Cites ................................. . . . . i

Table of Authorities .................................. v

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

II. Counter-Statement of Issues........ ..............1

III. Counter-Statement of Questions Presented .........1

IV. Counter-Statement of the Case..................... 4

V. Counter-Statement of Facts.........................5

VI. Statement of Scope of Review on Cross-Appeal......5

VII. Summary of the Argument........................... 5

VIII. Argument........................................... 8

I. Punitive Damages do not require
egregious conduct, award of actual
damages, or proof of 'legal' harm or
injury .......   8

Appellants preserved the argument that 
217C Restatement of the Law of Agency 
is proper grounds for damages against 
a principal for acts of his managerial 
agent ..............   10

II. Plain Error was committed in
instructing the jury that nominal
damages were discretionary and could 
not be awarded unless it found 
'insubstantial actual' damages .........11

Appellants excepted to the 'legal harm' 
instruction, and are not barred by 
invited error ........................ 14

III. Appellants are entitled to an
additur of actual damages, or new 
trial . ...................................15



IV Appellant FHP is a prevailing party 
entitled to costs, as landlords failed 
to prove 'exceptional circumstances' 
..........................................17

Appellants Alexander should be deemed 
prevailing parties because their 
verdicts changed Landlords' legal status 
..........................................18

The lower Court properly denied 
landlords costs, as the jury verdicts 
of violation of the Fair Housing Act 
render FHP, not Landlords, prevailing 
parties ................................ 19

VI. Appellants are entitled to 
injunctive and equitable relief on the 
record below ....... ................. 21

ARGUMENT ON CROSS-APPEAL
VII. A Landlords waived standing by
failure to file Rule 50 motion .... 22

VI I. B FHP proved 'injury' and has 
standing as an aggrieved person under 
Title VIII and the HUD Guidelines ...23

VIII. The lower Court properly exercised
its discretion to bar irrelevant 
after-acquired evidence of appellant- 
Alexander's bad credit and other bad 
acts ................................... 29

IX. Conclusion ............................... 32

X. Certificate of Bar Membership .......... 33

XI. Certificate of Compliance ............... 34

XII. Certificate of Service 35



TABLE OF CITES

Page
Baabv v. Beal,
606 F .2d 411, 415 (3d Cir. 1979).........................  19

Chauhan v. Alfieri,
897 F . 2d 123 (3rd Cir 1989)..............................  29
Chnapkova v. Koh.
985 F . 2d 79 (2d Cir. 1993) ................................  31

Christianbura Garment Co. v. EEOC,
434 U.S. 412 (1978)...................................... 17

CPR Associates Inc. Center for 
Emergency Medicine Education v.
South Eastern Pa. Chapter of American 
Heart Association. 1991 U.S. Dist. Lexis
4596, *38 (E.D. Pa. 1991)..............................  30

Crossman v. Marcoccio,
806 F . 2d 329 (1st Cir. 1986).............................  21

Curtis v. Loether.
415 U. S. 189, 197 (1974).................................. 15

Davet v. Maccarone,
973 F . 2d 22, 27 (1st Cir. 1992)............................ 12

Dr. Franklin Perkins School v. Freeman
741 F . 2d 1503 (7th Cir. 1984)............................  8

EEOC vs. L .B . Foster Co.,
___ F. 3d ___, (3rd Cir. 1998).........................  19

Emerick v. U.S. Suzuki Motor Corporation.
750 F .2d 19 (3d Cir. 1984).................................  8

Fair Employment Counsel of 
Greater Washington, Inc., v. BMC
Marketing Coro.. 28 F.3d 1268 (D.C. Cir.1994)............  26

Fair Housing Council of Suburban 
Philadelphia v. Montgomery Newspapers,
141 F .3d 71 (3d Cir. 1998)................................  24

x



Flvnn v. Marrvshov/, 986 F.2d 689 21

Garland vs, Texas State Teachers _
Association, 489 U.S.788 at 789,
109 S. Ct.1486 at 1492,99 L .Ed.44(1989) ................. 17

Gibeau v. Ellis. 18 F.3d 107, 110 (2d Cir. 1994)........  13

Gladstone Realtors v. Village of Bellwood,
441, U.S. 91, 99 S.Ct. 1601, 60 L .Ed. 2d 66 (1979).......  24

Gore v . Turner, 563 F.2d 159 (5th Cir. 1977).............  17

Gunbv v. Pa. Electric Company,
840 F . 2d 1108 (3d 1988)........................... ........ 17

Havens Realty Corp. v. Coleman.
455 U.S. 363, 102 S.Ct. 1114, 71 L.Ed. 2d 214 (1982)... 18,21 

Hooker v. Weathers,
990 F . 2d 913 (6th Cir. 1993)..............................  27

Housing Opportunities Made Equal v.
Cincinnati Enquirer,
943 F. 2d 644 (6th Cir. 1991)............................  27

Hughes v . Rowe. 449 U. S. 5 (1980).................... 17

Johnson v. Hale, 13 F. 3d 1351(9th Cir. 1995)..........  12

Kolstad v. American Dental Association,
___U.S.___, 1999 U.S. Lexis 4372 (6/22/99)......... . 7

Lataille v. Ponte.
754 F. 2d 33 (1st Cir. 1985).............................  25
LeBlanc-Sternberg v. Fletcher,
67 F. 3d 412 (2nd Cir. 1998)..............................  9

Lester H. v. Gilhool.
916 F . 2d 865, 869 (3d Cir. 1990).........................  23
Mardell vs. Harlevsville Life Ins. Co.,
31 F. 3d 1221 (3rd Cir. 1994),
after remand 65 F. 3d 1072 (3rd Cir. 1995)............  23

McDonnell-Douglas Corn, v. Green,
411 U.S. 792 (1973).............................. ........ 23

li



McKennon v. Nashville Banner Publishing Co.,
513 U.S. 352, 359-360, 363, 130 L.Ed.
2d 852, 115 S.Ct. 879 (1995).............................  23

Memphis Community School Dist. v. Stachura 
477 U. S. 299, 308, 91 L.Ed.2d 249,
106 S. Ct. 2537(1986)..................................... 9

Miller v Runvon,
130 F. 3rd 568, (3rd Cir. 1997).........................  23

NAACP vs. Wilmington Medical Center,
689 F. 2d 1161 (3rd Cir. 1982)......... .................  20

New Jersey Coalition of Rooming 
Houses v. Mayor of Asburv Park
152 F. 3d 217 (3rd Cir. 1998)............................  16

Racrin v. Harrv Macklowe Real Estate Co. ,
6 F . 3d 898 (2nd Cir. 1993)...............................  27

Rhoads v. Heberlina, 451 A.2d 1378 (Pa. Super. 1982) .... 8

Smith v. Wade. 461 U.S. 30 (1983).........................  10

Strauss v. Springer,
817 F. Supp. 1237 (E.D. Pa. 1993).........................  21

Trafficante v. Metropolitan Life Insurance Co.,
409 U.S. 205, 209, 93 S.Ct. 364, 367,
34 L . Ed2d 415 (1972)......................................  24

Tvus v .Urban Search Management.
102 F .3d 256,(7th Cir.
1996).......................... ..........................13,16

United States v. Balistrieri,
981 F . 2d 916, 933 (7th Cir. 1992).........................  27

United States v. Beros.
833 F . 2d 455 (3d Cir. 1987)...............................  25

United States v. Elliot,
89 F. 3d 1360, (8th Cir. 1996)............................  24

United States v. Jackson,
882 F .2d 455 (3d Cir. 1987)...............................  25

United States v. McNeill,
887 F .2d 448 (3d Cir. 1989) 25



United States v. Rosa.
891 F .2d 1063 (3d Cir. 1989) 26

Village of Bellwood v. Dwivedi.
895 F .2d 1521, 1526 (7th Cir. 1990)..................... 27

Warren v , Fanning.
950 F . 2d 1370 (8th Cir. 1991)............................  12

Warth v. Seldin. 422 U.S. 490 (1975)....................... 24

Watchorn v. Town of Davie,
795 F. Supp. 1112 (S.D. Fla. 1992)........................  12

White v. Moses Tavlor Hospital,
763 F . Supp 776, 792 (M.D. Pa. 1991).......................  8

Williams v. Runvon.
130 F .3d 568 (3rd Cir. 1997)..............................  23

Woods-Drake v . Lundv,
667 F . 2d 1198 (5th Cir. 1982).............................  17

iv



TABLE OF STATUTES AND AUTHORITIES
STATUTES

The Civil Rights Act of 1964, as amended 1991
42 USC 1981a ..............................................  9

42 USC 1988, The Civil Rights Attorney
Fee Award Act of 1966. .................................. 3, 17

The Fair Housing Act of 1968, as amended 1988:
42 USC 3602 (o) (2)...... .................... ........... 17, 19

42 USC 3604 (d)....... ..............................  23,28, 29

42 USC 3612 (A) (B) (C) ......................................18
42 USC 3613(c).....................................6, 12,16,21

HUD Guidelines, 24 CFR 982.306 ............................  18

HUD Regulations, 53 Fed. Reg. 44995 (Nov. 7, 1998).......  26

RULES
F.R.C.P. 50 .................................. 3,4, 15, 22,23

F.R.C.P. 54...............................................  16

F.R.C.P. 68.............................................. 20,21

Fed. R. Evidence 403 ...................................... 3 0

Fed. R. Evidence 404    30,31

Fed. R. Evidence 608(b)    30
Fed. R. Evidence 609 ...................................... 31

AUTHORITIES
D. Dobbs, Law of Remedies, (1973) p. 279.... 9,11

p. 305......  7
p. 295 ....  11

Restatement(Second) Law of Agency, Section 217(c).. 6,10

HEARINGS
U.S. House of Representatives, Committee on the 
Judiciary, Report 100-711: the Fair Housing Amendments 
Act of 1988, 23 100th Cong., 2nd Sess. (1988)(hereinafter
"House Report")............................................ 17



I. STATEMENT OF SUBJECT MATTER AND APPELLATE 
JURISDICTION IN REPLY TO CROSS-APPEAL

This court has subject matter jurisdiction under 42 

U.S.C. 3601 and 28 U.S.C. 1331, and appellate 
jurisdiction over the cross appeal as timely taken from 

the final judgment and order of the district court 

pursuant to 28 U.S.C. 1291.

II. COUNTER STATEMENT OF QUESTIONS PRESENTED 
(DIRECT APPEAL 98-3597)

1. Is a finding of 'legal harm' and 'actual injury' 

and/or an award of actual damages a prerequisite for 

awards of punitive damages under the Fair Housing Act? 

(answered in the affirmative below)

2. Did the lower court err in refusing to submit 

punitive damages to the jury because Landlord-Wife's 
violations of the Act were deemed not to cause 'legal 

harm' and were 'not egregious', and in failing to submit 
punitive damages against Landlord-Husband under Sec.217(c) 

Restatement (Second) of Agency ? (answered in the 

negative below)

3.1s it plain error to charge the jury that it

could award nominal damages for civil rights violations

page 1



only if 'insubstantial actual damages' and 'legal harm' 

were found, and could refuse to award nominal damages as 

a matter of law for violations of the Fair Housing Act? 

(answered in the negative below)

4. Did the lower court abuse its discretion in 

refusing to grant a new trial or additur on compensatory 

damages where appellants provided uncontroverted proof of 

actual damages ? (answered in the negative below)

5. Did the lower court abuse its discretion in 

refusing to enter declaratory and/or injunctive relief 

despite the jury's findings of violations, and refusing 

a hearing to Plaintiffs while accepting inadmissible 

evidence post-trial from Landlords' current Section VIII 

black tenants that 'Landlords were not discriminating? ' 

(answered in the negative below)

6. Did the lower court abuse its discretion in not 

admitting eyewitness evidence that Landlords discriminated 
against other blacks, to refute Wife's claim at trial she 

treated those blacks well? (answered in the negative 

below)

7. Did the court abuse its discretion in refusing to 

award costs and fees to appellant FHP as prevailing party,

page 2



and in denying prevailing party status, costs and fees to 

Appellants Alexander? (answered in the negative below)

QUESTIONS ON CROSS APPEAL 98-3622:

8. Whether landlords waived Article III standing of FHP

by failure to preserve the issue of sufficiency of 

FHP's evidence of injury by Rule 50 motion at

close of evidence , and in posttrial pleadings ? (not 

addressed by the court below)

9. Whether FHP has standing because it proved that it 

suffered injury by diversion of resources to investigate 

and combat Landlords' discrimination? (answered in the 

affirmative by court below)

10. Whether the lower court abused its discretion

in not admitting after-acquired evidence of applicants' bad 

credit and other acts learned by Landlords in discovery? 

(answered in the negative by court below)

11. Whether the court abused its discretion in

denying all costs to Landlords whom it found not to 
be 'prevailing parties' under 42 USC 1988? (answered in 

the negative by court below)

page 3



THE CASEIII. SUPPLEMENTAL COUNTER-STATEMENT OF
FOR CROSS-APPEAL

Landlords failed to preserve their argument as to 

sufficiency of the evidence as to FHP's standing, by 

failure to file a Rule 50(b) written motion or make 

adequate oral 50(b) motion at close of all evidence.

( A1158-1169.) Landlords cannot defend this 3604(d) claim 

of failure to negotiate on grounds that applicants were 

not 'qualified' to rent housing because of bad credit.

IV. COUNTER-STATEMENT OF FACTS ON CROSS-APPEAL
The Alexanders testified to emotional distress each 

suffered (A196, A575-578), his 5 days' lost wages (A575- 
578) and $135.30 forinvestigator Lang (04374,) . FHP spent 

$2250 in diverted resources and $100 for testers. (A1164- 

1167) as FHP was obligated to investigate, litigate and 

counteract Landlords' acts. (A664-701).

Landlords had no way of knowing Plaintiffs' credit 

at the time of Landlord-Wife's refusals to negotiate 
about #2 Darlington; credit information was not requested 

by Landlords for any tester until after they viewed the 
apartment. Credit reports, based on credit information, 

were not done at all on certain tenants. See Plaintiffs' 

Reply, Dckt.41 and Appendix in Opposition to Summary 

Judgment, Dkt.#42- Ex.6,7 (Maria Riga Deposition, Joseph

Riga Deposition.) Landlord-Wife produced 'no records'

page 4



of credit reports for Landlords' tenants Augustitus 

and Chan. Landlord-Husband stated that tenants were sent 
for credit reports through Landlord Service Bureau, This 

is contradicted by Dckt..#42- Ex.5 (John Kostelac Deposition)
stating that Landlord Service Bureau had no record of
credit reports for Landlords' tenants Augustitus, Chan,
or numerous other tenants of Landlords. (A151) Three
white testers were not asked about credit before Landlord- 

Wife set up appointments for each to see #2 Darlington .

See Dkt. #42- Ex.10, (Declaration of Dennis Orvosh) ; Ex.9

Declaration of Robin McDonough . Tester Lang testified 

that he was given a credit application only after being 

allowed to view the apartment. Lang A343-357. Landlords 

did not know the Alexanders' credit at the times 

Landlord-Wife lied to the Alexanders, refused to return 

phone calls, and denied a view of the apartment.

V. STANDARD OF REVIEW FOR CROSS-APPEAL

This court's review of the sufficiency of 

Landlords' Rule 50 motion is plenary. Lester H. v. 

Gilhool, 916 F .2d 865, 869 (3rd Cir. 1990)

VI . SUMMARY OF THE ARGUMENT

1. The lower court clearly erred in requiring 'legal' 

harm 'actual injury' and 'egregious conduct' as

page 5



prerequisites for submitting punitive damages against 

Landlord-Wife , and in refusing to submit punitive damages 

against Landlord-Husband for reckless managerial acts of 

Landlord-Wife, under Section 217 Hesfcalenient of the Law 

(Second) of Agency, (This issue was preserved by 

Plaintiffs' Trial Brief and exceptions of record.)

2. The Lower Court committed plain error in charging 

the jury that they had discretion to award nominal 

damages for civil rights violations only if 'insubstantial' 
actual damages' and 'legal' harm were proven.

3 . The lower court clearly erred in refusing to grant a

new trial or additur on compensatory damages where 

appellants provided unrebutted proof of actual damages.

4. The lower court abused its discretion in refusing 

to enter the declaratory relief and injunctive relief 

required under 3613(c) based on post-trial evidence that 
Landlords were not discriminating.

5. The lower court abused its discretion in 

refusing rebuttal eyewitness testimony to refute Wife's 
claim at trial that she treated black CMU students well.

6. The court abused its discretion in refusing to find 

the Alexanders to be prevailing parties, in denying them

page 6



costs and fees, and in denying fees and costs to FHP 

as a prevailing party, where Appellants proved

Landlords to be violators of the Fair Housing Act .

QUESTIONS ON CROSS APPEAL 98-3622:

7. Landlords waived FHP's standing by failure to 

preserve the issue of sufficiency of FHP's evidence 

on standing by Landlords' failure to make appropriate 

Rule 50(b) motions and/or post trial pleadings .

8. FHP has proven facts entitling it to standing to 

sue for Title VIII violations, because it proved that it 

diverted resources to investigate and combat Landlords' 
discrimination as it was obligated to do under HUD 
Guidelines.

9. The lower court did not abuse its discretion in 

refusing to admit Landlords' after-acquired evidence of 

applicants' bad credit and other bad acts, since Landlords 

never asked white applicants for such information 

before showing them the apartment.

10. Where Landlords violated the Fair Housing Act and 

failed to prove entitlement to costs as 'prevailing 

parties' under 42 USC 1988, the court did not abuse 

its discretion in denying costs to Landlords.

page 7



VII ARGUMENT AS TO APPEAL

Landlords' Principal Brief entirely fails to address 

certain issues1 raised in Appellants' Principal Brief, 

and addresses other issues minimally. 2 This Reply Brief 

will address only those major arguments substantively 
addressed by Landlords.

I.C.2 PUNITIVE DAMAGES DO NOT REQUIRE OF 
'EGREGIOUS' CONDUCT OR ACTUAL DAMAGES

Landlords do not refute Appellant's argument that 

a majority of courts have held that punitive damages 

can be awarded for civil rights violations without a 

prerequisite of 'actual damages', see pp.29-31 Appellants' 
Brief. Landlords contend 'legal harm' and 'actual damages' 

are required for punitive damages. The jury found 'legal

For example , Landlords fail to address Appellants' 
arguments that legislative history and precedent 
support an award of punitive damages, pp. 16-21 
Appellants' Brief.

For example, Landlords' Brief p. 29 cites state-law cases 
for the well-known proposition that when no violation 
of Plaintiff's rights is proved against Defendant, no 
damages whatsoever are recoverable , see Dr.Franklin 
Perkins School v. Freeman, 741 F.2d 1503 (7 th Cir. 1984) 
(breach of contract, fraud; infliction of emotional 
distress); Emerick v. U.S. Suzuki Motor Corporation, 750 F.2d 
19 (3rd Cir. 1984) (products liability ); White v. Moses 
Taylor Hospital, 763 F.Supp 776, 792 (M.D. Pa. 1991). (breach 
of contract in violation of Hill- Burton Act); Rhodes v. 
Heberling 451 A.2d 1378 (Pa. Super. 1982), (assault and 
battery, allowing punitive damages without 
compensatory damages where Defendant shot Plaintiffs)

page 8



harm to FHP; the lower court nevertheless refused to
send punitive damages to the j ury as to FHP.

Landlords claim that appellants-Alexanders' failure
to have the jury return a verdict finding Appellants-
Alexander to have suffered 'legal harm' from landlords'
violations of law bar an award of Title VIII punitive
damages. The Civil Rights Act of 1991, 42 USC 1981a
amended Title VII to allow for the same punitive
damages for employment discrimination as were available 

under 42 USC 1981 and Title VIII. Neither 42 USC 1981, 

Title VIII nor 1981a contain any legislative history 

or statutory provision requiring 'legal harm'3 or 'actual 

damages' before punitive damages are available.

D.Dobbs, Law of Remedies p.279 (1993) cautions that if 

a Plaintiff is deprived of a constitutional right under 

the 1st amendment, "P undoubtedly suffers 'loss harm or 

injury' , but may have no damages unless P proves some 

consequence such as emotional harm ..." 'Legal' harm is 

committed per se by Landlords' violations of Appellants'

Dobbs, Law of Remedies (1973), at 279 cautions 
precision in use of the terms 'harm' and 'damage:' 
'Damages' means 'harm or loss' suffered by a Plaintiff. 
'Harm' may be more or less than 'damages' actually 
awarded by a factfinder. For example, D trespasses on P 's 
land. P's right to peaceful possession is violated. There is 
no tangible 'harm' done to the land by D, and P 
suffers no 'harm' except the intangible harm of violation 
of his legal right. P nevertheless is entitled to 
compensatory, punitive and nominal damages to recognize 
invasion of his right.

page 9



Title VIII rights, just as violations of constitutional 

rights cause ' harm ' and injury, but not necessarily 
'damage '.

A ruling that egregious conduct is required for 
punitive damages is clearly erroneous and was rejected in

Kolstadt v. American Dental Association, ___ U.S. ___, 1999

U.S.Lexis 4372 (6/22/99.) Kolstad reaffirmed Smith v. Wade,

461 U.S. 3 0 (1983) as the standard for punitive damages,

and validated 217 (C) Restatement of Agency as grounds for 

punitive damages for acts of an agent.

Appellants properly preserved Sec.217(c) which was 

proposed to the lower court as the standard for

Landlord-Husband's liability by Appellants' Trial Brief and 

by argument on the record. 4 The evidence was sufficient 

for a jury to award punitive damages under Smith against 

Landlord-Wife for her direct acts and against Landlord- 

Husband for his managerial agent's5 conduct.

Landlords's Brief p.32 fn.10 pejoratively claims that 
Plaintiffs failed to preserve this issue, but see 
Plaintiffs' Trial Brief on Agency Issues (Dkt.#72,p .3-4) 
('Section 217C RESTATEMENT OF THE LAW (SECOND) of 
AGENCY allows punitive damages against Landlord-Husband 
for acts of his managerial agent Landlord-Wife'.)
(Landlords conceded managerial agency.) Counsel excepted, 
citing 217(c), to the Court's ruling refusing to submit 
punitive damages against Landlord-Husband. /A657-661).

5 Landlords concede managerial agency was proven, and failed 
to appeal the lower court's directed verdict against 
Landlords on this issue. The lower Court accepted 
Appellants' argument that the jury should be instructed 
they 'must' enter a verdict against both Landlords on

page 10



Landlords' Brief p.31 references punitive
damages cases, all distinguishable from the instant case 

because in none of Landlords' cited cases was 

217(c) considered and rejected as the basis for a 

principal's liability for punitive damages for acts of 

one proved to be a 'managerial' agent. Appellants 

seek remand with direction for a new trial on punitive 
damages against both Landlords.

II. PLAIN ERROR IN NOT INSTRUCTING JURY THAT 
NOMINAL DAMAGES MUST BE AWARDED 
FOR VIOLATIONS OF CIVIL RIGHTS

Landlords' principle argument is that nominal

damages cannot be awarded unless an 'absolute

constitutional' right is violated. They concede that this 

argument, rejected by a majority of circuits, may not be 

entirely persuasive. Landlords fail to refute Appellants' 

claims that nominal damages have been awarded for

violations of patent and commercial 'statutory'6 rights as

proof of a violation by Landlord-Wife, as the court had 
directed a verdict that Husband as principal acted through 
his managerial agent Wife. The court accepted Plaintiffs' 
counsel's proposed charge; "Did Maria Riga discriminate 
against Ron or Faye Alexander? (2) Did Maria Riga violate 
the Fair Housing Act as to the Fair Housing Partnership?
Yes or no . If the answer to No. 1 is yes, then
you will enter a verdict against Joseph and Maria 
Riga. Tell them that the law says that they have to 
do that ..." Ap. 835.

6 Brief, p.33

page 11



well as civil rights violations.7 Historically, nominal 
damages were even awarded for tort violations.8

Landlords' Principal Brief, p.26 cites three civil 

rights cases where nominal damages were not awarded at

trial. Dicta in each notes that 'nominal damages are

mandatory' where civil-rights violations are proved.
Warren v. Fanning, 950 F. 2d 1370 (8 th Cir. 1991) held

there was no error where prisoner-plaintiff asked only

for compensatory damages, not nominal damages, and then 

did not receive any damages (noting that if the jury 

found violation of rights, it was 'required' to award
nominal damages if so instructed .)

Citing Warren, the court in Davet v. Maccarone, 973 F. 
2d 22, 27 (1st Cir. 1992) refused Plaintiff a new 

trial on punitive damages for false arrest. No appeal 

was taken on failure to award nominal damages. Dicta 

notes that 'nominal damages are mandatory' for 

violation of civil rights. In Watchorn v. Town of Davie, 

795 F .Supp. 1112 (S.D.Fla.1992) , zero damages were awarded 

for due process violations; dicta notes that nominal

Brief p .29-31.

8 'Nominal damages could be awarded in tort cases that 
have their roots in the writ of trespass, as distinct from 
the action on the case... Trespass to land, assault, 
battery, and false imprisonment are all trespassory 
claims and nominal damages can be awarded in all of 
them..." Dobbs, op.cit. VI p.295;see p .25,Appellants ' Brief.

page 12



for civildamages are mandatory 

Plaintiff drafted the nominal 

and was not entitled

'invited error' doctrine.

rights violations. 

damages instructions herself, 

to new trial under the

Citing these authorities, Landlords nevertheless 

claim that the lower court's boilerplate 'permissive' 

nominal damages instruction was not 'plain error.' The lower 

court gave the jury discretion to award nominal 

damages for Landlords' civil rights violations and then only 

if it first found 'insubstantial actual' damages. Nominal 

damages are mandatory, not discretionary for violation 

of civil rights, and do not require 'insubstantial 

actual' damages as a prerequisite. "Nominal damages are the 

appropriate means of vindicating rights where the 

violation has not caused actual injury." Memphis 

Community School Dist. v.Stachura, 477 U.S. 299,308, 91 

L .Ed.2d 249, 106 S.Ct. 2537(1986).
An instruction to the contrary is reviewable for 

'plain error, ' see Giheau v. Ellis, 18 F.3d 107,110 (2nd 

Cir.1994) (holding it is plain error to give jury 

discretion to award nominal damages where civil right is 
violated;,- LeBlanc-Sternberg v. Fletcher, 67 F.3d 412 (2nd 

Cir. 1998) (error to refuse nominal damages for civil rights 

violations, entry of judgment for Defendants vacated 

with directive to enter nominal damages on remand); 

Tyus v.Urban Search Management, 102 F.3d 256 (7th Cir. 1996)

page 13



(vacating judgment and costs awarded to Defendants, remanding 

for new trial, holding it error to instruct that 

'actual injury' was required before compensatory damages 

could be awarded, on remand, punitive damages should be 

submitted to jury.)

Landlords miss the point of Appellants' 'plain 

error' argument. Appellants did not propose9 the specific 

nominal damages 'boilerplate'; nor except after the charge to 

the court's standard 'legal harm'10 language, but it is 

plain error to give the jury discretion not to award 

nominal damages for proven violations, instructing that it 

could not award nominal damages UNLESS it found

Appellants are not barred by the 'invited error' 
doctrine; the Court used its own 'standard' charges 
on nominal damages and 'legal harm.' The Court instructed 
counsel at the charge conference that 'any points that 
you raise and I rule on in these discussions, you 
need not raise after the charge as an exception,' 
A.827-828. The court passed out a 'rough draft' of its 
instructions and special verdict omitting nominal damages. 
Appellants' Counsel stated that plaintiffs were seeking an 
award of nominal damages, the court replied, 'we have 
something for that...' A.853 While the jury was still 
empaneled immediately after the jury returned its 
verdict, Appellants' Counsel noted that the jury's 
failure to award nominal damages when violations were 
proved was erroneous, and asked the court to resubmit 
nominal damages, A913-914. Counsel also requested that 
the court send punitive damages to the jury.A914-915 
The court refused and instead discharged the jury.

10 Appellants' counsel objected to the court's special 
verdict questions charging 'legal harm' and 'Iggal cause' 
A858-861 and proposed A859 that the special verdict ask 
only whether 'harm' was caused; the Court refused, stating 
'...My instructions are clear...'A859.

page 14



'insubstantial' actual damages and 'legal harm.' This 

instruction affected the fairness of the trial.

If the law means what the Supreme Court says, 

nominal damages are mandatory against Landlords for civil 

rights violations without requiring 'insubstantial actual 

damages' or 'legal' harm. Lower courts cannot use

boilerplate instructing otherwise, and their doing so 

deprives victims of a fair trial for civil rights 

violations. Such errors will continue to recur in 

civil rights cases, unless this Circuit makes the law

of nominal damages clear in this plain-error review.

III. PLAINTIFFS ARE ENTITLED TO A NEW TRIAL ON
COMPENSATORY DAMAGES WHERE PLAINTIFFS ADDUCED 

UNREBUTTED EVIDENCE OF HARM

Landlords' Brief, p .18,concedes that where "Plaintiff

proves unlawful discrimination and actual damages, he 

is entitled to a judgment for that amount..." Curtis 

v. Loether, 415 U. S. 189, 197 (1974) . Landlords contend

that compensatory damages are not awardable unless the 
jury finds 'legal harm.' Landlords fail to rebut FHP's 

contention that since the jury found that Landlords'

discrimination caused 'legal harm' to FHP, the lower

court erred in refusing additur of actual damages or 

a new trial on damages.

page 15



A plaintiff need not prove 'actual.' or 'tangible' 

injury 11 to be entitled to compensatory damages. Tyus v. 

Urban Search Management, 102 F.3d 256 (7 th Cir. 1996)

(reversible error to charge jury that Plaintiffs needed 

to prove 'tangible injury ' for compensatory damages from 

housing violations.) Here, Plaintiffs proved violations, and 

adduced unrebutted evidence of tangible damages. Civil

rights cases cited in Appellants' Brief p.33-37, ignored 

by Landlords, hold that it is reversible error for

the factfinder to disregard unrebutted evidence of 

actual damages if violation is proven.

Landlords ignore their violations of each plaintiffs' 

rights, and the unrebutted evidence of actual damages.12 

Since "if a Plaintiff proves unlawful discrimination and 

actual damages, he is entitled to a judgment for

that amount.." , a new trial or additur of actual damages 

is required on compensatory damages for each appellant.

Landlords fail to distinguish compensatory damages 

cases cited in Appellants' Brief at 34-36, including

Johnson v. Hale, 13 F.3d 1351(9th Cir. 1995); New Jersey

11 Plaintiffs claim plain error in the court's 
instructing the jury that 'legal harm' and 'insubstantial 
actual damages' were both required before the jury 
could award nominal damages, with a special verdict 
instructing the jury to skip 'all' damages, including 
nominal damages, unless the jury found 'legal harm,-' and 
objected to use of 'legal' harm. Brief at 24-27, A.858-60
12 See Counter-Statement of Facts, p.3 infra.

page 16



Coalition of Rooming Houses v. Mayor of Asbury Park, 152

F .3d 217 (3rd Cir. 1998) and Woods-Drake v. Lundy , 13 667

F .2d 1198, 1203 (5th Cir.1982) where appellate courts

remanded for new trials on damages where violations of

housing law and proof of damages was adduced, but

insufficient damages were awarded.

IV. A APPELLANTS AS PREVAILING PARTIES 
ENTITLED TO 3602(0) COSTS

All Plaintiffs as 'prevailing parties' moved for award 

of attorney fees and costs under 42 U.S.C .3613(c)(2) and 

3602(o) (incorporating 42 USC 1988, the Attorney Fee 

Awards Act of 1976.) The lower Court found FHP to be 

a prevailing party14 , not the Alexanders, but denied FHP 

fees and costs. Under Garland vs. Texas State Teachers 

Association, 489 U.S. 788,789, 109 S.Ct. 1486,1492, 99 L.

13 Landlords' discussion of Woods-Drake and Gore is
perplexing and factually erroneous. Both appellate courts 
reversed and remanded insufficient damage awards for
violations of housing rights. Woods-Drake remanded for
award of compensatory damages for threats made in 
violation of housing law to a tenant who invited
blacks to dinner; Gore v. Turner, 563 F.2d 159 (5th Cir.
1977) found the lower court's damages award of out-of­
pockets but no emotional distress or punitive damages to be 
insufficient and remanded for new trial on̂  damages,
holding that award of zero damages for emotional distress or 
attorney's fees was error.) Landlords' cite to Gunby v. 
Pennsylvania Elec. Co. 840 F. 2d 1108 (3rd Cir. 1988) is
distinguishable on the facts. This Circuit vacated Gunby s 
$15,000 compensatory damages award based on insufficient 
evidence to prove emotional distress for a promotion
denial; because Gunby did not prove a basis for the award. )

14 Landlords moved for costs;42 USC 3602 (o), 42 USC 1988 and
Chris tianburg Gairment Co.v. EEOC, 434 U.S. 412 (1978) control.

page 17



Ed.2d 44 (1989) plaintiffs prevail if they succeed on 

'any significant issue in the litigation which achieves 

some of the benefit the parties sought '.Id. at 792. Each 

Plaintiff sought and received verdicts and a judgment 

that Landlords' conduct violated the Act, which altered 

each Landlord's legal status to Plaintiffs and society.

A material alteration of legal relationship to 

Landlords' detriment and society's benefit occurred by the 

verdict proving Landlords violated 3604(d). As violators of 

the Fair Housing Act, each Landlord is now liable under 

42 USC 3612(B) and (C) for increased penalties of $25,000 

to $50,000 for violations of the Fair Housing Act, 

contrasted to the $10,000 of 3612(A) for those never 

adjudged as previous violators. Landlords' changed 

'violator' status now bars them from HUD approval as 

owner-providers of Section 8 housing. (see HUD 

Guidelines, 24 CFR 982.306; owners found guilty of Fair 

Housing Act violations cannot be approved by HUD as 

providers for Section 8 programs.) Plaintiffs' suit caused 

these changes in Landlords' legal status and resulted in 

the judgment that Landlords are proven violators. 

Both Alexanders and FHP acted as 'private attorneys general' 

at great cost to each, and are entitled to prevailing 

party status on the jury's verdicts. Plaintiffs 

established causation between their litigation and "some of

page 18



the benefits" sought. Bagby v. Beal, 606 F.2d at 415, (3rd.

Cir.1979)

Plaintiffs sued as private attorneys-general because 

Plaintiffs wanted to stop Landlords' discrimination. 

Their reward for this public service is to have spent 

their own money proving Landlords violated the Fair 

Housing Act, and to be denied prevailing-party status, and 

denied costs by the lower court with no exceptional 

circumstances proven of record. If Plaintiffs' victory in 

proving Landlords as violators serves an important national 

policy , the lower court's entry of judgment against 

the Alexanders, and its judgment denying costs to FHP must 

be reversed.

V.B THE LOWER COURT PROPERLY DENIED 
LANDLORDS THEIR COSTS

The costs recoverable in a Fair Housing Act case

under Section 3602 (o) are those of a prevailing

Plaintiff under 42 USC 1988. The legislative history of 

Title VIII is devoid of any legislative intent to award 

costs to prevailing Defendants. For Landlords to recover 

costs, Landlords must prove prevailing-party status and

entitlement under Christianburg for a frivolous suit. See 

EEOC vs. L.B. Foster Co., 123 F.3d 746 (3rd Cir. 

1998),(reversing award of costs to defendant, under

Christianburg, where Plaintiff-EEOC's action was

unsuccessful but not frivolous.) The record is devoid of

page 19



such proof, as Plaintiffs' action was not frivolous, and 

Landlords were not granted 'prevailing parties' status 

against FHP -- FHP was. Landlords lost the verdicts to 

Alexanders; Landlords did not 'win.' See Hughes v. Rowe, 

449 U.S. 5 (1980).

The specific language of the Civil Rights Attorneys' 

Fee Awards Act authorize costs and fees to prevailing 

Plaintiffs, not to prevailing Defendants. The lower court 

had broad discretion under the Fair Housing Act and 

Federal Rules of Civil Procedure to make such orders as 

are just, and properly refused Landlords' request for 

prevailing-party status and rule 68 costs under the 

policy considerations of the Fair Housing Act explicitly 

incorporating 42 USC 1988. The lower court properly 

denied Rule 68 costs to Landlords, reasoning 'there must 

be some consequence' for Landlords' violations.

Even if Landlords ultimately succeed in not 

having additional compensatory, punitive injunctive or 

declaratory relief after remand, Defendants are not 

necessarily 'prevailing parties.' See Sassower v. Field, 

973 F . 2d 75 (2nd Cir.1992); NAACP vs. Wilmington Medical 

Center, 689 F.2d 1161(3rd Cir.1982) (not dispositive as to 

'prevailing party' status that Defendant won action for 

injunctive relief ; fees awarded to prevailing 

plaintiffs.)

page 20



Assuming arguendo Rule 68 trumps 3604(o), it is 

premature to attempt to determine 'prevailing party' 

status for Rule 68 until this Court's disposition of 

this appeal. Landlords' Rule 68 offer was insufficient 

to appellants' cover fees and expenses as of date of the 

offer, see Dckts.#93,94 Plaintiff's Reply to

Defendant's Motion to Tax Costs.) Such an offer is

ineffective to cause a shift of post--offer costs /

Flynn v. Marry show, 986 F .2d 689 (4 th Cir. 1993) . Crossman

v. Marcoccio, 806 F. 2d 329 (2nd Cir. 1986), cited by

Landlords, does not control; the Crossman plaintiffs 

lost, and their costs and attorney fees were not 

greater than Defendant's Rule 68 offer. FHP is 

entitled to fees and costs through date of the Rule 

68 offer. Strauss v. Springer, 817 F.Supp. 1237 

(E.D.Pa.1993)

V I . ENTITLEMENT TO INJUNCTIVE AND DECLARATORY RELIEF
Injunctive relief is mandatory under 3613(c) on the 

jury's verdicts finding violations. Landlords persist in 

denying all discrimination; as owners they continue to 

control availability of housing units in the area FHP

serves. Landlords' refusals to deal with blacks ten

times is a 'pattern and practice' entitling Appellants to

page 21



entry of injunctive and declaratory relief on this record, 

see U.S. v. Pelzer, 484 F. 2d 438, 443 (5th Cir. 1973) 

(reversing as clearly erroneous trial court's judgment in 

favor of Defendant, remanding for entry of decree against 

realty company for two refusals to deal with blacks, 

noting it is a matter of 'public importance' . The amendments 

to Title VII , 42 USC 1981a, allow declaratory and 

injunctive relief and costs to plaintiffs even in in 

'mixed-motive' cases where Defendant had both legitimate 

and discriminatory reasons, see e.g. Sheppard v. 

Riverview Nursing Center Inc., 88 F. 3d 1332 (4th Cir. 1996) 

(where Title VII plaintiff is illegally fired due to 

pregnancy; and employer proves it would not have 

retained her regardless of pregnancy Plaintiff still 

eligible for declaratory and injunctive relief. )

ARGUMENT IN REPLY TO LANDLORDS' DIRECT APPEAL:
VII.A LANDLORDS' WAIVER OF 'STANDING'

Landlords' oral Rule 50 Motion at close of evidence,

and post trial papers did not ask for judgment as a matter 

of law for Landlords against FHP on lack of standing, 

or raise insufficiency of evidence of FHP's injury. At 
close of all evidence, Landlords' counsel merely

stated, "defendants filed a cross motion pursuant to

Rule 50 " failing to mention evidentiary insufficiency for 

FHP's standing. A1169. (No written Rule 50 motion was 

filed.) The lower court entered judgment for FHP.

page 22



judgment' toLandlords appealed denial of 'summary

Landlords, not the post-trial entry of judgment for FHP. 

Failure to raise sufficiency of FHP's standing evidence 

by Rule 50 motion at close of evidence constitutes a 

waiver of the issue. Williams v. Runyon , 130 F.3d 568

(3rd Cir. 1997)

Landlords also judicially admitted that FHP had 

standing, in response to the lower court's query:

THE COURT: '...suppose that the Alexanders never
had done anything and the Fair Housing Partnership 
comes in and runs these testers. Aren't they 
entitled to recover?'

MR. HARDIMAN: 'On those facts, yes, sir. Yes, your 
Honor because under those facts Fair Housing
Partnership contributed something to the corpus of 
evidence that the Plaintiffs themselves did not
already have, and here all they contributed to
the corpus of evidence is that the African
American tester was shown the apartment...' A.678.

VIII .B FHP HAS STANDING TO SUE AS AN 'AGGRIEVED 
PERSON' UNDER HUD REGULATIONS

FHP, the only housing agency in Western Pennsylvania 

certified by the U.S. Department of Housing and

Urban Development,)' P .Ex. 30, A. 664) received Plaintiff-

Alexander's complaint. FHP was obligated to investigate,

litigate and counteract Landlords' acts.(A664-701) Staff

'stopped everything else' and devoted all her attention 

to this case.A669.

page 23



Congress conferred primary responsibility for

enforcing Title VIII upon fair-housing organizations. See 

H.R.Rep.No.100-711, Amendments to Fair Housing Act, at 16 

(1988) ("private persons and fair-housing organizations are 

burdened with primary enforcement responsibility" under the 

Act.") Congress intended standing under the Fair Housing Act 

to be as broadly defined as constitutionally permissible. 

Trafficante v. Metropolitan Life Insurance Co., 409 U.S. 205, 

209, 93 S.Ct. 3 64,3 67, 3 4 L.Ed.2d 415 (1972) The Supreme

Court acknowledged private fair housing councils' role “as 

private attorneys general in vindicating a policy that

Congress considered to be of the highest priority."

Trafficante, 409 U.S. at 211. See also Gladstone Realtors

v. Village of Bellwood, 441 U.S. 91, 99 S.Ct. 1601, 60

L .Ed.2d 66 (1979). The legislative intent of Congress in

enacting Title VIII "cannot be overlooked" in determining 

whether [plaintiffs] have standing to sue. Havens Realty 

Corp. v. Coleman, 455 U.S. 363,373, 102 S.Ct. 1114, 71

L .Ed.2d 214 (1982).

Congress has authority to relax requirements of 

prudential standing to serve the public interest. A

Plaintiff may, 'where Congress directs, have standing 

to seek relief on the basis of the legal rights and 

interests of others, and . . .may invoke the general 

public interest. . . ' Warth v. Seldin, 422 U.S. 490,499- 

500, 95 S.Ct.2197, 2205-2206, 45 L.Ed.2d 343 (1975) In Fair

Housing Council v. Montgomery Newspapers, 141 F.3d 71,74

page 24



(3rd Cir.1998) this Circuit noted that 'prudential standing 

requirements have been eliminated in cases arising 

under the Fair Housing Act.' Havens states that the 

only injury which must be shown to confer standing on 

a fair housing agency is deflection of time and money to 

legal efforts directed against discrimination. Havens, Id. 

363-364.

Landlords' misrepresentations violated Plaintiffs' 

3604(d) rights and caused harm, injury and damages to the 

Alexanders and FHP. The Alexanders' damnun are 

embarassment, humiliation, 5 days' lost wages, and tester 

fees. FHP's damnum are resources FHP diverted to investigate 

and counter Landlords' conduct.

Congress amended the Fair Housing Act "to provide 

an effective enforcement system" and make the promise of 

fair housing a reality "by removing barriers to the use of 

court enforcement by private litigants." Fair Housing 

Amendments Act of 1988, 100th Cong.,2nd Sess.(1988) (U.S. 

House of Representatives, Committee on the Judiciary, Report 

100-711,p .16,hereinafter "Report").The Report noted the major 

role fair housing organizations played as litigants in 

enforcing Title VIII, in light of " limited financial 

resources of the litigants and the bar, and disincentives in 

the law itself," Report at 13-16. In response thereto, HUD 

Regulations were amended to provide a definition of 

'aggrieved persons' entitled to maintain suit to include

page 25



fair housing organizations. 53 Fed.Reg.44995 (Nov.7,1988) 

and Preamble II, 24 C.F.R. ch.l, subch. A, app. 1, 54

Fed.Reg.3238 (January 23, 1989). FHP is an 'aggrieved

person' with standing to sue under HUD regulations.

Fair Employment Council of Greater Washington, Inc. 

v. BMC Marketing Corp., 28 F.3d 1268 (D.C.1994) stated 

that frustration of mission provided injury sufficient 

for standing:"discrimination ...has made [a fair employment] 

council's overall task more difficult" for example, by 

" increas [ ing] the number of people in need of counseling," or 

mak[ing] it hard for minorities to find jobs," thereby 

"reducing the effectiveness of any given level of [the 

council's] outreach efforts .. "here can be no question the 

organization has suffered injury in fact." 28 F.3d at 1277.

Havens 455 U.S. at 379 recognized that a fair-housing 

organization suffers injury where a violator causes the 

organization to divert resources to redress the violator's 

discrimination. BMC dicta was incorrectly cited by 

Landlords as holding that 'diversion of resources to 
investigate discrimination through testers or litigation 

cannot provide injury needed for standing.' But BMC 

held thata plaintiff had standing, if it proved injury 

suffered to its programs as a result of unlawful conduct.

page 26



The diversion of resources 15 discussed in BMC was 

suffered by FHP.

Landlords claim that FHP made a programmatic 

choice to divert resources to investigate complaints 

about Landlords, and therefore has no standing. This choice 

was not 'voluntary'; it is FHP's legal obligation and 

mission. HUD guidelines mandate that FHP take such 

actions to stop housing discrimination . FHP's failure to 

do so would disobey HUD Guidelines, imperil FHP's 

certification, and renounce FHP's mission.

In Fair Housing Council of Philadelphia v. 

Montgomery Newspapers , 141 F.3d 71,76-7 8 (3rd Cir.1998) 

summary judgment was granted against FHC on its 

Sec. 3 604 claim for discriminatory ads read by its 

staff and its 3617 claim for retaliation. In sustaining 

the lower court's grant of summary judgment on the 3604 

claim, this Court found no injury in fact , where FHC

15 To demonstrate injury in fact, a fair-housing 
organization does not have to show "specific quantifiable 
expenditures", caused by defendants' discrimination as 
FHP showed, but rather only "perceptible impairment" in 
ability to provide services. Ragin v. Harry Macklowe Real 
Estate Co., 6 F.3d 898 (2nd Cir. 1993) ; Village of Bellwood v. 
Dwivedi, 895 F.2d 1521, 1526 (7th Cir. 1990) ("the only 
injury which need be shown to confer standing on a fair­
housing agency is deflection of time and money from 
counseling to legal efforts against discrimination); see 
also Hooker v. Weathers, 990 F.2d 913 (6th Cir. 1993); 
Housing Opportunities Made Equal v. Cincinnati Enquirer, 
943 F. 2d 644 (6th Cir. 1991); U.S. v. Balistrieri, 981 F.2d 
916, 933 (7 th Cir. 1992) (organization compensated for 
time and money diverted to legal efforts, conducting 
tests and "following up on the results of those tests.)

page 27



investigators found discriminatory ads , then sued the 

newspaper under 3604. No victim had complained to FHC. 

This court found that no FHP resources were diverted 

to 'investigation', as staff's perusals of newspapers 

were part of their daily routine. Id. at 77. No 

resources were diverted to counter the ads or educate the 

public, and no connection was proven between the ads 

and a need for a remedial education campaign. FHC' s 

claim was that in the future it would spend costs to 

counteract the ads.

This court sustained the lower court's finding of 

no evidence of Article III injury other than dedicating 

funds to the instant litigation. Since FHC 

'manufactured' the litigation, 'expenses of litigation 

alone do not constitute damage sufficient to support 

standing.' Id. at 80. See also FHC v. Main Line Times, 141 

F. 3d 43 9 ( 3rd Cir. 1998) (holding that FHC failed 

to establish 'perceptible impairment' to operations caused 

by discrimination, it lacked standing.)

Appellants ask this Court to make it clear that 

agencies such as FHP have status to enforce Title 

VIII as 'aggrieved persons.' The purpose of including 

agencies as aggrieved persons under the HUD guidelines 

was to allow the agency to sue on behalf of persons 

discriminated against. Those illegally denied housing

page 28



are often ignorant and unsophisticated, and require 

agency assistance.

VIII.A No Abuse of Discretion to Bar 
After-Acquired Bad Acts Evidence as Irrelevant

Lies and refusals to deal with Plaintiffs

prove violations of 3604(d) regardless of their credit 

under McDonnell-Douglas Corp. v. Green , 411 U.S. 792. 

(1973). The lower court properly ruled that only

relevant evidence was Landlords' reasons in fall 1995

for refusals to deal with Plaintiffs, barring the 'after- 

acquired evidence ' of bad credit obtained in February 

1997. See McKennon vs. Nashville Banner Publishing Co., 

513 U.S. 352, 359-60, 363 , 130 L. Ed. 2d 852, 115 S. Ct.

879 (1995), and Mardell vs. Harleysville Life Ins.

Co., 31 F.3d 1221, 1238 (3rd Cir. 1994), after remand 65

F .3d 1072 (3rd Cir. 1995).
Landlords argue that status as a 'qualified'

applicant is required before Landlords have a duty
under 3604(d) to tell the truth to applicants . They

cite Chauhan v. Alfieri , 897 F.2d 123 (3rd Cir. 1990), but 

Chauhan is inapposite. Plaintiff lost summary

judgment , for failure to prove that Landlord's refusal 

to lease was pretext . This Court reversed, to grant

Chauhan an opportunity to produce evidence of pretext.

page 29



VIII.B NO ABUSE OF DISCRETION IN NOT ADMITTING
AFTER-ACQUIRED EVIDENCE OF BAD ACTS

"Evidence of other crimes, wrongs or acts is not 

admissible to prove the character of a person in order to 

show action in conformity therewith." Federal Rule of

Evidence 404(b). Landlords sought to 'put character in 

issue' and introduce afteracquired 16 evidence of

misleading statements on employment applications to cross- 

examine plaintiffs, using extrinsic documents. This evidence 

was extremely prejudicial and not relevant. 'Other crimes, 

wrongs, or acts' are only admissible under Rule 404(b) 

if relevant to prove scheme, plan, motive or intent, or if 

proferred as convictions 'crimen falsi' under R. 609.

Under R.403,404 and 608, the lower court properly

exercised discretion to bar cross-examination of

plaintiffs on 'other acts' evidence, which would have

required numerous witnesses and documents from credit 

providers, employers and others. See U.S. v. Elliot, 89 F.3d 

1360,(8th Cir. 1996)(defendant cannot introduce paralegal- 

witness's 'resume fraud' on cross-examination to impeach ); 

CPR Associates Inc. Center for Emergency Medicine

Education vs. South Eastern Pa. Chapter of American Heart 

Association, 1991 U.S. Dist. Lexis 4596, *38 (E.D. Pa.

1991) ( Plaintiff lied in deposition about conviction

16 In November 1996, Defendants obtained certain of these 
documents by illegal ex parte Rule 45 discovery 
subpoenas,issued without notices of deposition or notice 
to plaintiffs' counsel, to use at plaintiffs' deposition.

page 30



of a crime, court barred evidence as not relevant and too 

prejudicial ); Lataille v. Ponte, 754 F. 2d 33 (1st Cir. 

1985) (reversible error to introduce acts of 

violence committed by prisoner against jail guard in 

police brutality case to show prisoner likely was 

first aggressor).

Landlords cite numerous criminal cases where 

impeachment is permitted under Rule 404(a)(1) because 

character is in issue, and where convictions crimen 

falsi are admissible under F.R.E. 609(a). See U.S.v. 

McNeill, 887 F. 2d 448 (3rd.Cir. 1989)(excluding both 

extrinsic bad acts and impeachment of government witness 

soliciting others for murder, though Defendant is 
accused of soliciting murder) ; U.S. v. Jackson, 882 F. 

2d 1444 (9th Cir. 1989) (barring impeachment of witness 

who falsified documents; while allowing crimen falsi 

against Defendant ); U.S. v. Rosa, 891 F. 2d 1063 (3rd Cir. 

1989) (witness impeached on crimen falsi but not on 

bribery); Chnapkova v. Koh, 985 F.2d 79 (2nd Cir. 1993) 

(allowing crimen falsi failure to file tax returns) . 

See U.S. v. Beros, 833 F. 2d 455 ( 3rd Cir. 1987) (In 

embezzlement where character in issue ; no error in 

admitting prior inconsistent statement on Nevada marriage 

license to impeach character witnesses. 'The propriety 

of the district court's exercise of discretion in this 

matter is too evident to merit discussion where the

page 31



Defendant has put character in issue...." 833 F.2d at 

463 fn.5.)
This court should properly be concerned with

upholding the lower court's discretion to prohibit the

trial tactics of subjecting witnesses to scathing

crossexaminations for every misdeed committed

Disinterested witnesses are increasingly reluctant to

participate in trials, given the possibility of such

scrutiny.

IX. CONCLUSION

Landlords did not appeal the sufficiency of the

evidence on which the jury returned verdicts of 

Landlords' violations of the Fair Housing Act; liability 

has been established and need not be revisited.

Kolstad entitles Appellants to a remand on punitive

damages. This Court should reverse entry of judgment 

against appellants Alexander, and remand for entry of 
actual damages, injunctive, and declaratory relief in 

favor of each appellant against each Landlord, and order a 

new trial on nominal and punitive damages .

July 29,1999 BY: ________________
Caroline Mitchell, Esquire 
Pa. I.D. #18601 
3700 Gulf Building 
707 Grant Street 
Pittsburgh, PA 15219-1913 
(412) 232-3131
Attorney for All Appellants

page 32



CERTIFICATE OF BAR MEMBERSHIP

I certify that I am a member of the Bar of the Third 

Cuircuit Court of Appeals.

_____________

Caroline Mitchell, Esquire 
Pa. I.D. #18601 
3700 Gulf Building 
707 Grant Street 
Pittsburgh, PA 15219-1913 
(412) 232-3131
Attorney for All Appellants



C ertificate o f Com pliance

I, the undersigned, certify that this Reply Brief is in compliance 
with the word limitations of F.R.A.P. 28 and L.A.R. 28.0 for Courier 12 
non-proportional font with word limitation of 7,000 words, as it contains 

words.

BY:_
Caroline Mitchell, Esquire 
Pa. I.D. #18601
3700 Gulf Building 
707 Grant Street
Pittsburgh, PA 15219-1913 
(412) 232-3131 
Attorney for Plaintiff



CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the within Reply 
Brief lhas been served upon the following counsel of Record by first class 
mail, postage prepaid on the 29th day of July, 1999.

Thomas M. Hardiman, Esquire 
Titus &  McConomy LLP 
20th Floor, Four Gateway Center 
Pittsburgh, PA 15222-1207
Timothy O ’Brien, Esquire 
1705 Allegheny Building 
429 Forbes Avenue 
Pittsburgh, PA 15219
Charles Stephen, Ralston, Esquire 
NAACP Legal Defense and 
Educational Fund, Inc.
99 Hudson Street, Suite 1600 
New York, NY 10013
Rebecca K. Troth, Esquire 
Department of Justice 
P.O. Box 66078 
Washington, D.C. 20035-6078

BY:
Caroline Mitchell, Esquire 
Pa. I.D. #18601 
3700 Gulf Building 
707 Grant Street 
Pittsburgh, PA 15219-1913 
(412) 232-3131 
Attorney for Plaintiff