Memo from Stephanie Cotter to Lani Guinier

    IN THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

No. 98-3622 
No. 98-3597

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

Appellants,
v.

JOSEPH RIGA , MARIA A. RIGA

Appellees.

APPEAL FROM JUDGMENT ENTERED IN THE UNITED STATES DISTRICT 
COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

APPELLANTS' SUPPLEMENTAL APPENDIX (VOLUME IV)

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 of 
Supplemental Appendix - Vol. IV

Landlords' Rule 50 Motion..........................  A-1158
(Tr. 672-674) at close of Plaintiff's Case

as to Alexanders............................. A-1158
as to FHP....................................  A-1159

Landlords' Rule 50 Motion............................ A-1169
(Tr. 862) at close of all evidence

as to all Plaintiffs.........................  A-1169



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672

Q. "That was mid-September?

MR. HARDIMAN: Excuse me. The transcript does not 
indicate a question on line 14.

MR. O'BRIEN: It says that was mid-September, 
question mark.

MR. HARDIMAN: No Q next to it?

MR. O'BRIEN: No.

MR. HARDIMAN: A little confusing. Apparently 

Attorney Mitchell asked a question at line 14 that said that 
was mid-September.

A. "I not remember. I sent him that letter on the 10th.

MR. HARDIMAN: Thank you, Your Honor. That is all 

we have of this deposition.

THE COURT: All right.

MR. O'BRIEN: Probably to everyone's pleasure, we 
have no further material to read in.

THE COURT: So that ends it. We still have a
witness.

MR. O'BRIEN: I have Andrea Blinn.
THE COURT: I think we will take our afternoon

recess.
(Jury out.)

THE COURT: I understand you want to make your 
Rule 50 motion now.

MR. HARDIMAN: Yes, Your Honor, if that is what

A U56



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673

the court would like.

THE COURT: At the end of plaintiffs' case is 

probably the time to make the motion the first time anyway.
MR. HARDIMAN: Right.

Now, Mr. O'Brien was still going to call Ms. Blinn 

on damages. Would the court entertain a Rule 50 motion now 
on that?

THE COURT: If you still have more testimony --
MR. O'BRIEN: All I have is Ms. Blinn, and the 

only thing on liability she will testify to is admitting the 

bylaws of the Fair Housing Partnership. It sets out the 

mission. I am not sure if that is a damages issue or 

liability. I'll incorporate by reference, and I will do it 

now, the testimony that has gone before.

THE COURT: Okay. Then, Mr. Hardiman, You can 
make your motion as to the Alexander case.

MR. HARDIMAN: Your Honor, we move for judgment as 
a matter of law pursuant to Rule 50 of the Federal Rules of 
Civil Procedure on behalf of both Mr. and Mrs. Riga.

The testimony indicated that there was great 
conflict among Mr. Alexander's testimony and their documents 
that they produced as to when he claimed he visited the 
property. And based upon the contradictory evidence that 

was submitted, we don't believe that a reasonable jury could 

conclude that they have proved their case.

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674

THE COURT: You mean that isn't a matter of 

credibility for the jury.

MR. HARDIMAN: Well, Your Honor, it's their own 

testimony and their own documents. That is why we think if 

the conflicting testimony came from our side, we would 

believe that certainly that had to go to the jury, if the 

plaintiff said X, and my client said Y. But the plaintiffs' 
testimony and their own documents was all over the place, so 

much so that a reasonable jury could not conclude that this 
truly happened on the dates that I guess now that they say 

that it happened.
THE COURT: September 18 and September 29?

MR. HARDIMAN: Right.
MS. MITCHELL: This is certainly one of the 

strongest cases in the files of discrimination I have ever 

seen. It clearly develops availability of the apartment and 

lying as to that, and all of that is appropriately resolved 

by a jury. It is a credibility issue that must go to the , 
jury under Rule 50.

THE COURT: I think it is a credibility issue at 
least at this stage. I will deny the motion. You can renew 
it at the end of all the evidence.

MR. HARDIMAN: Thank you, Your Honor. We have a 

motion regarding punitive damages if the court would 

entertain that.



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675

THE COURT: I don't think it is appropriate at 

this point until I have heard all the evidence. I don't 

know if it is premature to hear a motion as to the Fair 

Housing, but I hate to take a break after just a few more 

minutes.
MR. O'BRIEN: I have no objections to them making 

the same motion that they just made regarding issues of 

credibility. If they are going to raise something that 

implies Ms. Blinn's testimony which hasn't been presented, 

the court can rule on it. Otherwise, I would be interested 

in hearing it.
MR. HARDIMAN: Your Honor, we would move for 

judgment as a matter of law under Rule 50 of the Federal 

Rules as to plaintiff Fair Housing Partnership specifically 

because the Fair Housing Partnership, by their own testimony 
and by the testimony of the plaintiffs, the Alexanders, they 

didn't get involved in this case until after the following 
happened, and I'm going to grant for purposes of this motion 
only that the plaintiffs testified credibly and truthfully.

The plaintiffs claim they jointly viewed the 
property on the 18th of September, Mr. Alexander.

THE COURT: Well, they visited the property, 

didn't view it.
MR. HARDIMAN: I am sorry. Visited the property

and attempted to view it.



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676

THE COURT: Yes.

MR. HARDIMAN: And Mr. Alexander testified that he 
came back on the 29th.

THE COURT: Yes.

MR. HARDIMAN: Their witness, Robin McDonough, 

testified that pursuant to Mr. Alexander's request on the 
26th of September, she called to see if the place was 

available. And the reason Mr. Alexander wanted her to do 

that was because Mr. Alexander claimed, and again accepting 

as true for purposes of this motion, that he had been told 

it was unavailable. Ms. McDonough calls on the 26th and 
she's told that it is available. He then goes back on the 

29th and he claims that he's denied the opportunity to view 
it again.

All this has happened before the Fair Housing 
Partnership has even come on to the scene. The 
discrimination really occurred here. The Alexanders have 
proven it. They have proven it by their own testimony and 
through the testimony of Ms. McDonough that on the 26th she 
demonstrated the property was available. The Fair Housing 

Partnership came late on the scene. In fact, the Fair 

Housing Partnership helps our case. Mrs. Riga is going to 

testify that she showed the apartment to four 
African-Americans. Daria Mitchell was one. Two

Carnegie-Mellon students were the others. And she is going



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to say another African-American woman saw the property. She 

doesn't remember any of these people's names. But for the 

Fair Housing Partnership producing documents to us showing 
us that Daria Mitchell was in fact the person who saw the 

property, Mrs. Riga never would have remembered her name, 
and that in fact helps our case because Daria Mitchell 

admitted that she was shown the property. And this is not a 

failure to rent case. This is a failure to show case. The 
court ruled early on in pretrial that this is a failure to 

show case.

THE COURT: The 1982 and '81 claims have been

withdrawn.

MR. O'BRIEN: It is now a failure to show case.

It is a failure to give accurate information about the 
availability. If I tell you to come in and say here's the 
unit. It is a beautiful unit. It has got a living room, 
bedroom, and 16 coke machines. Oh, by the way, it is not 
available to you. That violates the Fair Housing Act.

If you will stipulate that your client 

discriminated against the Alexanders before the Fair Housing 
Partnership got involved, if you will put that on the 
record, that will be fine. But if he's not going to 

stipulate to that, the motion ought to be dismissed.

MR. HARDIMAN: I am trying to explain to the 

court. Obviously,' I'm not going to stipulate that my



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clients are liable. I am trying to explain to the court in 

a time line fashion when the Fair --

THE COURT: I don't understand what difference it 

makes what the time line is. 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 the 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.

MR. O'BRIEN: That is not accurate.

MR. HARDIMAN: If I may finish my motion, I will 
be quiet, and then they can respond.

MR. O'BRIEN: I am sorry.
MR. HARDIMAN: We should also add, Your Honor, and 

I know that this is something the court disagrees with, but 

I want the record --
THE COURT: She was telling us she was shown the 

apartment, but she was told it was not available.

MR. HARDIMAN: That is what she said.
THE COURT: She couldn't rent it.

MR. HARDIMAN: That is what she testified to, yes.

h  WlsX



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679

But she didn't come on the scene until the 30th of 

September. That is our basic point.

THE COURT: I don't understand what difference 

that makes if it tends to corroborate what the other 

plaintiffs have testified to.

MR. HARDIMAN: Well, I guess I argued a minute 

ago. I don't think it corroborates it because the 
Alexanders claim they were turned away spurned.

THE COURT: I think what Tim is arguing is it 

doesn't matter whether you look at the apartment or not.

What matters is whether you are told -- you are denied 

further opportunity to bargain for it; you are told it is 
not available.

MR. HARDIMAN: I understand that is his argument, 
Your Honor.

If I might just add, under the cases we have cited 
in our brief, which I believe that the court already 
disagreed with, I want the record to be clear, under the 

holdings of the Circuit, the Third Circuit, and not yet 
ruled on under the DC Circuit cases, a fair housing 

corporation, non-profit, such as the Fair Housing 
Partnership here, cannot confer standing upon itself by 

getting involved in a lawsuit. It has to demonstrate a 

diversion of resources from the core of its program, and it 
is not enough that" it shows up and says let's get involved

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in this potential lawsuit. And that is all of the evidence 
that exists here, is that someone came to them.

THE COURT: Wouldn't that always be the case? I 

mean, somebody goes to the Fair Housing Partnership and says 

look I'm being discriminated against by the owner of the 

building. And so the Fair Housing Partnership people get 
involved and send testers out to see if that is what is 
happening.

MR. HARDIMAN: Well, they have a right, and the 

tester, if a tester is discriminated against, has a right to 
bring an action on his or her own behalf. Testers have 

standing if they are discriminated against. If Ms. Daria 

Mitchell had brought an action, we wouldn't have argued that 

they didn't have standing. But the Housing Partnership 

itself has to show a diversion of its resources away from 

its core programs. Just getting involved in one lawsuit is 

not sufficient under the cases we cited under the DC 
Circuit.

MS. MITCHELL: With all due respect, the D.C. 

Circuit is a fair practices case. Title 7 doesn't 
specifically authorize testers. Title 8 specifically 
authorizes testers. The cases would indicate that exactly 
what the Fair Housing Partnership did in this case is what 

the court believes a fair housing agency has to do to assist 
plaintiffs in these cases.



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Your Honor, they filed a motion for summary 

judgment making that same argument. This court entered its 

opinion saying that we do have standing. So the standing 

issue can't possibly be the basis for the Rule 50 motion.

As to the Rule 50 motion as it relates to this concept that 

because the Fair Housing Partnership showed up the next day 
they don't have a claim to me is wholly inappropriate 

argument. The Fair Housing Partnership -- the reason I said 

if they will stipulate to liability then you wouldn't need 

the Fair Housing Partnership is since they are contesting 

that the Alexanders were discriminated against based on 

their race, that is exactly why the Fair Housing Partnership 
becomes involved, because they helped prove it.

THE COURT: Well, they helped prove it by offering 

evidence that there was similar discrimination against --
MR. O'BRIEN: For the testers.
THE COURT: The testers.

MR. O'BRIEN: That is exactly right.
THE COURT: At a later time.

MR. O'BRIEN: The next day, as soon as they could 
get there. It is a little bit like an ambulance company. 

Somebody calls up and says a person is having a heart 
attack, so they send the ambulance out.

THE COURT: Yes, you can't very well get involved 
in advance as you wouldn't know about it.

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I am going to deny the motion at this point 

without prejudice of your right to raise it again at the end 

of all the evidence. That should take care of the motions.
MR. HARDIMAN: I do think we will be able to 

finish the defendant's case today, but possibly there will 

be a small amount of cross-examination for tomorrow morning.

MR. O'BRIEN: It is five to four. I have to put 

Andrea Blinn on.
THE COURT: What?

MR. O'BRIEN: Andrea Blinn is going to be put on.

THE COURT: The defendants are going to call -- 

let me talk about scheduling for a minute. It seems to me 

it's unlikely we are going to finish all the testimony 

today. We will have to bring the jury back tomorrow. And I 
think we are going to have our charge conference tomorrow 

after we finish up, and then we will go to the jury on 
Friday. I had not planned on doing that. And I have 
discovery motions Friday morning at 9:30. So I will bring 
the jury in at ten. I don't think it is going to delay 
anything because we wouldn't in any event be able to the 

proceed to the next stage until Monday or until Tuesday. It 

could possibly be until Tuesday. I mean, there is a 

punitive damages issue in this case. We couldn't have 
reached it until Tuesday because if we had gone to the jury 

tomorrow, I was going to schedule it for Friday sometime.

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862

1 me to do?

2 Q. "No. I want you to tell me if you know who that number

3 is?

4 A. "No, I don't recall.

5 MR. HARDIMAN: Your Honor, with that the , i
6 defendants rest.

7 THE COURT: All right.
i

8 MS. MITCHELL: Will the court entertain motions at 1

9 side bar.

10 THE COURT: Pardon me?

11 MS. MITCHELL: Would the court entertain motions I

12 at side bar.

13 THE COURT: All right. !

14 (Side bar conference.)
!
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15 MS. MITCHELL: Your Honor, on behalf of plaintiffs

16 Ron and Faye Alexander and the Fair Housing Partnership,

17 plaintiffs move for a directed verdict and judgment as a

18 matter of law in favor of each plaintiff and against the

19 defendants.

20 MR. HARDIMAN: Your Honor, the defendants filed a

21 cross motion pursuant to Rule 50.

22 THE COURT: All right. For the reasons I've

23 already articulated, both motions are denied.

24 MR. HARDIMAN: Thank you.

25 (Conclusion of side bar conference.)

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CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the
within Supplemental Appendix has 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 Appellants