
    NATIONAL ASSOCIATION FOR the ADVANCEMENT OF COLORED PEOPLE (NAACP), Plaintiff, v. AMERIQUEST MORTGAGE COMPANY, et al. Defendants.
    Case No. SACV 07-0794 AG (ANx).
    United States District Court, C.D. California.
    Jan. 12, 2009.
    As Amended Jan. 13, 2009.
    
      Angela Ciccolo, NAACP, Baltimore, MD, Austin Tighe, Vic Feazell, Feazeall and Tighe, Gary L. Bledsoe, Law Offices of Gary L. Bledsoe & Associates, Austin, TX, Brian S. Kabateck, Joshua H. Haffner, Richard L. Kellner, Kabateck Kellner LLP, Los Angeles, CA, fowPlaintiff.
    Brian P. Brooks, Elizabeth Lemond McKeen, O’Melveny & Myers, Newport Beach, CA, Michael J. Agoglia, Wendy Marie Garbers, Morrison and Foerster, Tyree P. Jones, Jr., Reed Smith LLP, San Francisco, CA, Kirk D. Jensen, Matthew P. Previn, BuckleySandler LLP, Thomas M. Hefferon, Goodwin Procter LLP, Washington, DC, Richard J. Sahatjian, BuckleySandler LLP, Amir Shlesinger, David S. Reidy, Abraham J. Colman, Reed Smith LLP, Julia B. Strickland, Matthew David Moran, Stephen J. Newman, Lisa M. Simonetti, Stroock and Stroock and Lavan, Brooks R. Brown, Goodwin Procter LLP, Los Angeles, CA, Mark S. Melodía, Reed Smith LLP, Princeton, NJ, Joyce S. Huang, Theodore V. Wells, Jr., Paul Weiss Rifldnd Wharton & Garrison LLP, New York, NY, Stacey M. Garrett, Esther E. Cho, Keesal Young & Logan, Long Beach, CA, for Defendants.
   ORDER DENYING DEFENDANTS’ MOTION TO DISMISS PLAINTIFF’S SECOND AMENDED COMPLAINT

ANDREW J. GUILFORD, District Judge.

Before the Court is the Joint Motion to Dismiss Plaintiffs Second Amended Complaint (“Motion”) filed by defendants Accredited Home Lenders, Inc., Ameriquest Mortgage Co., Bear Stearns Residential Mortgage Corp. d/b/a Encore Credit, Chase Bank USA, CitiMortgage, First Franklin Financial Corp., First Tennessee Bank d/b/a First Horizon National Corp., Fremont Investment & Loan, GMAC Mortgage Group, LLC, GMAC ResCap, HSBC Finance Corp., J.P. Morgan Chase & Co., Long Beach Mortgage Co., National City Corp., Option One Mortgage Corp., SunTrust Mortgage, Washington Mutual, Inc., and WMC Mortgage, LLC (“Defendants”). After considering all arguments presented by the parties, the Court DENIES the Motion.

BACKGROUND

The following facts are taken from the Second Amended Complaint (“SAC”) filed by plaintiff NAACP (“Plaintiff’), and for the purposes of this Motion the Court assumes them to be true. Plaintiff is the nation’s oldest civil rights organization. (SAC ¶ 12.) Its goals involve combating racial discrimination, including discrimination in housing. (SAC ¶ 12.) The Defendants are lenders who provide residential mortgage loans. (SAC ¶ 1.)

Plaintiff filed the SAC in its individual capacity, in its representative capacity, and as a class action. (SAC ¶ 1.) The SAC alleges violations of the Fair Housing Act (“FHA”), 42 U.S.C. § 3601 et seq.; the Equal Credit Opportunity Act (“ECOA”), 15 U.S.C. § 1691 et seq.; and the Civil Rights Act, 42 U.S.C. § 1981 et seq. (SAC ¶¶ 7-8.) Specifically, the SAC alleges discrimination based on “numerous empirical studies that all confirm that African-Americans are substantially more likely to receive higher-rate residential mortgage loans than” equally qualified Caucasian borrowers. (SAC ¶ 1.)

Plaintiff alleges that Defendants have injured Plaintiff, individually and on behalf of its members. (SAC ¶ 13.) Plaintiff alleges that its members are in real and imminent danger of suffering immediate or threatened injury caused by Defendants’ “predatory lending policies.” (SAC ¶ 13.) Plaintiff alleges that it also has suffered injury because “Defendants’ discriminatory mortgage lending policies and practices tend to frustrate the association’s mission, reduce contributions and divert its resources, including through investigation, advocacy and counseling, and litigation costs.” (SAC ¶ 13.)

LEGAL STANDARDS

Federal Rule of Civil Procedure 12(b)(1) provides for dismissal of a complaint for lack of subject matter jurisdiction. Because federal courts are courts of limited jurisdiction, it is “presumed that a cause lies outside this limited jurisdiction, and the burden of establishing the contrary rests upon the party asserting jurisdiction.” Vacek v. United States Postal Serv., 447 F.3d 1248, 1250 (9th Cir.2006) (quoting Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994) (citations omitted)).

Under Federal Rule of Civil Procedure 12(b)(6), a complaint must be dismissed when a plaintiffs allegations fail to state a claim upon which relief can be granted. Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the claim showing that the pleader is entitled to relief.” This is because “Mrdinary pleading rules are not meant to impose a great burden upon a plaintiff.” Dura Pharms., Inc. v. Broudo, 544 U.S. 336, 347, 125 S.Ct. 1627, 161 L.Ed.2d 577 (2005). “Specific facts are not necessary; the statement need only ‘give the defendant fair notice of what the ... claim is and the grounds upon which it rests.’ ” Erickson v. Pardus, 551 U.S. 89, 127 S.Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007) (per curiam) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1964, 167 L.Ed.2d 929 (2007)). Thus, a complaint may not be dismissed for failure to state a claim where the allegations plausibly show “that the pleader is entitled to relief.” Twombly, 127 S.Ct. at 1965. Conversely, a complaint should be dismissed for failure to state a claim where the factual allegations do not raise the “right of relief above the speculative level.” Id.

The Court must accept as true all factual allegations in the complaint and must draw all reasonable inferences from those allegations, construing the complaint in the light most favorable to the plaintiff. Westlands Water Disk v. Firebaugh Canal, 10 F.3d 667, 670 (9th Cir.1993). But courts are not required “to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences.” Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir.2001).

ANALYSIS

1. PLAINTIFF HAS ORGANIZATIONAL STANDING

Defendants claim that Plaintiff lacks organizational standing under the FHA, the CRA, and the ECOA. To satisfy Article Ill’s standing requirement, a plaintiff must show: (1) an injury that is concrete, particularized, and actual or imminent; (2) a causal connection between the injury and the challenged conduct, such that the injury may be fairly traceable to that conduct; and (3) a likelihood that the injury will be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992).

1.1 Plaintiff has Alleged an Injury Sufficient to Establish Standing to Bring its FHA Claims

To determine whether an organization asserts a cognizable injury under the FHA, a court asks whether the defendant caused only “a setback to the [plaintiff] organization’s abstract social interests,” or whether the defendant caused the plaintiff to suffer a “concrete and demonstrable injury.” Havens Realty Corp. et al. v. Coleman et al., 455 U.S. 363, 379, 102 S.Ct. 1114, 71 L.Ed.2d 214 (1982). In making this determination, a court asks whether the defendant’s actions “perceptibly impaired” the plaintiffs work, id., and led to a “consequent drain on the organization’s resources,” id. at 369, 102 S.Ct. 1114.

Defendants argue that Plaintiff alleges nothing more than a setback to Plaintiffs abstract social interests. (Mot. 6:18-20.) Defendants distinguish Havens, where the Court found that the plaintiffs six-month investigation into the defendant’s rental practices amounted to a concrete and demonstrable injury sufficient to establish standing. (Mot. 6:10-14.) Plaintiff disagrees, pointing to the language in the SAC that says Defendants’ “discriminatory mortgage lending policies tend to frustrate [Plaintiffs] mission, reduce contributions and divert its resources, including through investigation, advocacy and counseling, and litigation costs.” (SAC ¶ 13.)

Defendant is correct in observing that Plaintiff does not allege injury with the same level of specificity as the plaintiff in Havens. But Defendant is incorrect in assuming that this means Plaintiff fails the Havens test de jure. Plaintiffs allegations rise beyond the level of a “general allegation ... that [it has] been adversely affected.” Hood River County v. United States, 532 F.2d 1236, 1239 (9th Cir.1976). Plaintiff has alleged that Defendants’ actions perceptibly impaired Plaintiffs work, drained Plaintiffs resources, and resulted in concrete and demonstrable injury. Plaintiffs allegations are sufficient to establish organizational standing under the FHA.

1.2 Plaintiff is in the CRA’s Zone of Interests

Defendants argue that Plaintiff is not in the zone of interests protected by the CRA. (Reply 8:21-24.) Defendants argue that the CRA protects the right to make and enforce contracts and to hold property free from racial discrimination, but Plaintiff has not alleged it sought or entered into contracts for mortgage loans with any Defendant. (Reply 8:21-24.) Plaintiff counters that Defendants construe the CRA too narrowly. (Opp’n 11:5-12:13.)

The Court agrees with Plaintiff. The CRA denies a right of review only if “the plaintiffs interests are so marginally related to or inconsistent with the purposes implicit in the statute that it cannot be reasonably assumed that Congress intended to permit the suit.” Clarke v. Sec. Indus. Ass’n, 479 U.S. 388, 399, 107 S.Ct. 750, 93 L.Ed.2d 757 (1987); see also Ashley Creek Phosphate Co. v. Norton, 420 F.3d 934, 940 (9th Cir.2005) (“The zone of interests test is not intended to impose an onerous burden on the plaintiff and is not meant to be especially demanding.”) (internal citation omitted). Sections 1981 and 1982 of the CRA were properly enacted under the Thirteenth Amendment. Defendants do not dispute that Plaintiffs interests are consistent with these statutory purposes. Since Plaintiffs interests are more than marginally related to the CRA’s purposes, Plaintiff is in the CRA’s zone of interests.

1.3 Organizational Standing under the ECOA

Defendants argue that Plaintiff is not within the ECOA’s zone of interests. (Mot. 7:24-8:16.) Plaintiff concedes this point. (Opp’n 10:22 n. 2.) Plaintiff does not have organizational standing under the ECOA. But since the Court concluded in section 1.2 that Plaintiff is in the CRA’s zone of interests, Plaintiff has organizational standing under the CRA and does not need to have organizational standing under the ECOA.

1.4 Causation

Defendants argue that even if the SAC contains facts sufficient to allege injury, it does not contain facts sufficient to allege causation. (Mot. 9:10-14.) The Court disagrees. Plaintiff alleges that Defendants’ actions caused frustration of Plaintiffs mission, reduction of contributions, and diversion of resources. (SAC ¶ 13.) This is sufficient to satisfy the causation element.

1.5 Conclusion

Plaintiff has organizational standing to bring its claims under the FHA and the CRA.

2. PLAINTIFF HAS ASSOCIATIONAL STANDING

“Even in the absence of injury to itself, an association may have standing solely as the representative of its members.” Warth v. Seldin, 422 U.S. 490, 511, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). Associational standing requires that (1) at least one member has standing, in his own right, to present a claim asserted by the association; (2) the interests sought to be protected are germane to the association’s purpose; and (3) neither the claim asserted nor the relief requested requires that the members participate individually in the suit. Hunt v. Wash. State Apple Adver. Comm’n, 432 U.S. 333, 343, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977). Defendants argue that Plaintiff fails to satisfy prongs one and three of the Hunt test.

2.1 Plaintiff Alleges that its Members Have Standing

Defendants argue that Plaintiff fails to satisfy the first Hunt element because the SAC neither identifies a member with individual standing nor provides a way for the Court to determine whether such a member exists. (Mot. 10:17-19.) Defendants cite Bayaa v. United Airlines, Inc., 249 F.Supp.2d 1198, 1204 (C.D.Cal.2002), as stating that a plaintiff does not have associational standing when it fails adequately to plead that even one of its members has standing. (Mot. 11:19-20.)

Plaintiff responds that it need not identify a specific member with individual standing to satisfy the first prong of the Hunt test. Plaintiff distinguishes Bayaa, arguing that in that case the plaintiff failed not because it failed to identify a specific member with individual standing, but because it did not allege that the injured individuals were its members. (Opp’n 7:16-17.)

Defendants’ reliance on Bayaa is misplaced. In that case, the court explained that the .plaintiffs claim failed because it did “not claim that the eleven individuals allegedly removed from UAL flights are its members,” not because it failed to identify specific members. Bayaa, 249 F.Supp.2d at 1203-04. Here, Plaintiff does claim that its members were harmed by Defendants: “Members of the NAACP have been injured in fact by each Defendant as complained herein,” and the “members, or any one of them, are in real and imminent danger of suffering an immediate or threatened injury as a result of [Defendants’ alleged] predatory lending policies, which said members could directly pursue.” (SAC ¶¶ 13-14).

2.2 Individual Members Need Not Participate Directly in the Suit

Defendants argue that Plaintiff fails to satisfy the third prong of the associational standing test. This prong “is best seen as focusing [] on matters of administrative convenience and efficiency, not oh elements of a case or controversy within the meaning of the Constitution.” United Food and Commercial Workers Union Local 751 v. Brown Group, Inc., 517 U.S. 544, 557, 116 S.Ct. 1529, 134 L.Ed.2d 758 (1996). Thus, “once an association has satisfied Hunt’s first and second prongs assuring adversarial vigor in pursuing a claim for which member Article III standing exists, it is difficult to see a constitutional necessity for anything more.” Id. at 556, 116 S.Ct. 1529.

Defendants argue that Plaintiff seeks “declaratory, monetary and injunctive relief,” (SAC ¶ 11) and that associational standing is never appropriate in an action where an organization seeks damages on behalf of its members. (Mot. 12:5-6.) Defendants state that even if Plaintiff is not seeking actual damages, its request for restitution and disgorgement requires member participation. (Mot. 12:24-27.) Plaintiff responds that it does not seek damages, restitution, or disgorgement. (Opp’n 8:24 n. 1.) The reference to “monetary ... relief’ refers only to costs and attorney’s fees. (Opp’n 8:24 n. 1.) Plaintiff confirms that the SAC does “not set forth a claim for recovery of monetary damages,” and that “[n]owhere in the prayer for relief is [restitution or disgorgement] sought.” (Opp’n 8:24; 9:23.) Because Plaintiff does not seek damages, restitution, or disgorgement, Plaintiff is not per se barred from claiming associational standing.

Defendants also argue that regardless of the form of relief Plaintiff seeks, Plaintiffs discrimination allegations require individualized proof, and thus member participation is necessary. (Opp’n 13:17-14:15.) To support their argument, Defendants rely heavily on American Baptist Churches v. Meese, 712 F.Supp. 756, 766 (N.D.Cal.1989), and Rent Stabilization Ass’n v. Dinkins, 5 F.3d 591, 596 (2nd Cir.1993). Plaintiff distinguishes these cases, citing a string of cases to the contrary. (Opp’n 9:8-13.)

Defendants’ arguments are not persuasive. Rent Stabilization Ass’n is a takings case, not a discrimination case. Rent Stabilization Ass’n, 5 F.3d at 594. In American Baptist Churches, the denial of associational standing was based on the specific reasons why aliens entered the United States, not on the fact that the case raised a discrimination claim. American Baptist Chitrches, 712 F.Supp. at 759. Further, American Baptist Churches actually argues against Defendants’ position. In that case, the court notes that “where injunctive relief is sought, individualized proof is ordinarily unnecessary.” Id. at 756-66; see also NAACP v. Harris, 567 F.Supp. 637, 639-40 (D.Mass.1983) (“[W]here only declaratory and injunctive relief are sought, [the NAACP] qualifies under [the third Hunt prong].”).

Thus, the caselaw favors a finding that Plaintiff fulfills the third prong of the Hunt test. Since the first two prongs satisfy the Court’s constitutional concerns, Brown Group, Inc., 517 U.S. at 556, 116 S.Ct. 1529, questions of administrative convenience and efficiency do not persuade the Court that Plaintiff fails the third prong.

2.3 Conclusion

Plaintiff sufficiently satisfies the Hunt test. Plaintiff has associational standing to bring claims for declarative and injunctive relief on behalf of its members.

3. PLAINTIFF DOES NOT FAIL TO STATE A CLAIM

3.1 Plaintiff Pleads with Adequate Specificity

Defendants argue that by repeating the exact same claims against each Defendant, Plaintiff treats “a host of disparate parties identically without explanation,” and thus fails to plead a claim adequately against any of them. (Mot. 15:4-17; 16:20-22.) The Court disagrees. As long as a complaint pleads with adequate specificity to satisfy Federal Rule of Civil Procedure 8(a)(2) as to each defendant, it is irrelevant that the complaint brings the same allegations against all defendants. The SAC is not a priori deficient simply because Plaintiff alleges the same claims against all Defendants.

3.2 Plaintiff States a Disparate Impact Claim under the FHA and the ECOA

For a disparate impact claim to succeed, a plaintiff must adequately plead: (1) a specific and clearly delineated practice or policy adopted by a defendant, (2) a disparate impact on a protected group, and (3) facts demonstrating a causal connection between the specific challenged practice or policy and the alleged disparate impact. Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 657-58, 109 S.Ct. 2115, 104 L.Ed.2d 733 (1989).

Plaintiff satisfies the first prong of this test. Defendants argue that Plaintiff fails to plead a specific policy adopted by Defendants, instead making allegations that are “incomprehensible” and too “vague.” (Mot. 19:15-16.) The Court disagrees. In fact, Plaintiff alleges several specific policies. Plaintiff attacks Defendants’ marketing of subprime loans, deployment of financial incentives, and lack of meaningful review of loan applications. (SAC ¶ 76.) Plaintiffs allegations are sufficient at this stage of the proceedings. See, e.g., Zamudio v. HSBC N. Am. Holdings, Inc., 2008 WL 517138, at *2, 2008 U.S. Dist. LEXIS 13952, at *4 (N.D.Ill. Feb. 20, 2008) (finding, that a plaintiffs allegations were “sufficient to meet the basic pleading requirements under Twombly,” especially considering that “[t]he only way for [the plaintiff] to ascertain a more detailed picture [is] through discovery.”).

Plaintiff also satisfies the test’s second prong. Plaintiff alleges that Defendants’ policies and practices caused a disparate impact on African Americans. Plaintiff states, “The adverse impact of [Defendants’] policies and practices is felt disproportionately by African American consumers and members of the NAACP, compared to similarly situated Caucasians .... ” (SAC ¶ 53.) Plaintiff satisfies the third prong because it alleges a causal connection: “The foregoing policies and practices have a disproportionately adverse effect on African Americans compared with similarly situated Caucasian applicants.” (SAC ¶ 68.) Thus, Plaintiff successfully alleges all three elements of the disparate impact test.

3.3 Plaintiff States a Claim under Section 1982 of the CRA

Plaintiff has properly alleged a disparate impact claim under section 1982. The Ninth Circuit has held that disparate impact claims are appropriate under section 1982. See, e.g., Phiffer v. Proud Parrot Motor Hotel, 648 F.2d 548, 551 (9th Cir.1980) (“Racial motivation is not an element of the section 1983 prima facie case; only a racial impact need be shown. Defendants erroneously argue that we must ... require that plaintiffs prove racial animosity .... ”). Defendants argue that Plaintiff fails to allege a disparate impact claim under section 1982. (Reply 16:19— 25.) But Plaintiff does allege a disparate impact claim: “By charging higher rates [Defendants] unlawfully discriminated [] in (I) formation of contracts, (ii) making, performance, modification, and termination of contracts, and/or (iii) the enjoyment of all benefits [ ] of the contractual relationship ....” (SAC ¶97.)

3.4 Conclusion

Plaintiff properly alleges claims under the FHA, the ECOA, and the CRA.

4. THE FHA AND THE ECOA PERMIT DISPARATE IMPACT CLAIMS

Defendants argue that Smith v. City of Jackson, 544 U.S. 228, 125 S.Ct. 1536, 161 L.Ed.2d 410 (2005), overrules prior Ninth Circuit holdings that permitted disparate impact claims under the FHA and the ECOA. (Mot. 24:14-17.) Smith does not address FHA or ECOA claims at all. Instead, it finds that disparate impact claims are permitted under the Age Discrimination in Employment Act (“ADEA”) because, in part, the ADEA prohibits “actions that deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race or age.” Smith, 544 U.S. at 235, 125 S.Ct. 1536 (emphasis in original; citation omitted). Defendants argue that since this language is absent from the FHA and the ECOA, those statutes must not permit disparate impact claims in the wake of Smith. (Mot. 25:9-19.) But the Ninth Circuit has found disparate impact claims under the FHA after Smith. See, e.g., Affordable Housing Dev. Corp. v. City of Fresno, 433 F.3d 1182, 1194 (9th Cir.2006) (concluding that a plaintiff “made a prima facie showing of [disparate impact] discrimination” under the FHA); Budnick v. Town of Carefree, 518 F.3d 1109, 1118 (9th Cir. 2008) (explaining how a plaintiff can establish a “prima facie ease of disparate impact under the FHA”).

Our sister court in the Central District of California recently considered the same argument Defendants raise here. That court concluded that Smith “did not hold that a statute must contain this ‘effects’ language in order to authorize disparate impact claims.” Garcia v. Countrywide Fin. Corp., No. 07-1161-VAP (JCRx), slip op. at 7-11 (C.D.Cal. Jan. 15, 2008) (emphasis in original). In fact, the Smith court “did not rely only on this textual analysis of the statutes, but also held that the purpose and legislative history of the ADEA, as well as unanimous circuit court treatment of the Act, supported disparate treatment claims.” Id. The court concluded, “[T]his Court declines to hold that Smith overturned Ninth Circuit precedent recognizing disparate impact claims under the FHA and ECOA.” Id. This Court also declines to conclude that Smith had this effect.

5. PLAINTIFF MAY BRING CLAIMS UNDER BOTH THE FHA AND THE ECOA

The ECOA says, “No person aggrieved by a violation of this title and by a violation of [§ 805 of the FHA] shall recover under [both], if such violation is based on the same, transaction.” 15 U.S.C. § 1691e(i). The parties disagree as to whether this wording provides a plaintiff with alternative, or mutually exclusive, rights of recovery. Defendants argue that this means Plaintiff may not bring both claims. (Mot. 31:1-11.) Plaintiff argues that this means Plaintiff may bring both claims but may only recover under one. (Opp’n 35:10.) Plaintiff argues that where Congress has sought to preclude the assertion of parallel legal claims under the ECOA, it has done so explicitly, as in 15 U.S.C. § 1691d(e), where it notes that “a person [] may bring a legal action to recover monetary damages either under this title [15 U.S.C. §§ 1691 et seq.] or under such State law, but not both.” (Opp’n 35:9-15.)

The Court finds Plaintiffs logic persuasive. The few courts that have addressed this issue have found the ECOA and the FHA to be alternative, rather than mutually exclusive, rights of recovery. See, e.g., Ware v. Indymac Bank F.S.B., 534 F.Supp.2d 835, 840 (N.D.Ill.2008) (allowing a plaintiff to proceed under both the ECOA and FHA causes of action). Even the sole case that Defendants reference does not support their argument. Cooley v. Sterling Bank, 280 F.Supp.2d 1331, 1337 n. 4 (M.D.Ala.2003) states, “Although the Plaintiff raises claims under both the ECOA and the FHA, the court notes that the Plaintiff would only be entitled to recovery under one statute.” Plaintiff does not say it should be entitled to recovery under both statutes. Plaintiff only says it should be entitled to pursue claims under both statutes and decide later under which one to recover. The Court agrees.

DISPOSITION

The Court DENIES the Motion.

IT IS SO ORDERED.  