It all started..

Sun 1.3.21

      I should fill you in on my case in federal court.  It starts with my filing a suit against my landlord (corporate entity) because I was given written permission to place a gazebo in the backyard, and two weeks later was ordered to take it down.  The case is ongoing.  At some point, landlord served me with a Forcible Entry and Detainer Complaint which lacked any serious allegations, save for the gazebo I placed in the yard, which was removed, along with a small garden.  There are many tenant gardens, not just mine.

         I made a number of motions before trial, but first I submitted a response to Landlord’s complaint and a Motion to Continue (Me. R. Civ. P. 7(4)) to hold the case till my own gazebo case was heard, since the two are tied primarily by my own complaint.  I then filed an Affidavit in which I give evidence that there is a mold problem in my apartment and I’ve made a complaint to landlord in writing about it, that I was being harassed, with evidence, I also provided evidence that landlord denied the existence of the very complaints he now asserted in his eviction case.  Along with the affidavit I added a Motion for Partial Summary Judgment (Me. R. Civ. P. 56) to eliminate the complaints he denied having made in my own suit. Because landlord did not serve me a 30-day Notice of Termination before his eviction complaint, I filed a Motion to Quash, Insufficiency of Process (Me. R. Civ. P. 12 (b)(5)) along with a 2nd Affidavit where I bring evidence to prove I was not served the notice, and more evidence on the false complaints.

      My last set of motions were, Motion To Dismiss, (14, M.R.S.A. §6001.3) Presumption of Retaliation, the evidence in 1st affidavit and lastly a Special Motion to Dismiss, (14, M.R.S.A. §556) the anti-SLAPP statute.  SLAPP stands for Strategic Lawsuit Against Public Participation.  Landlord eviction suit has been initiated because he wants to bypass my suit against him by evicting me.  As you can see a lot of work is involved that the court informs me it will not rule on unless it is presented at trial.  Regardless, the evidence and charges have been filed with the court and is a record.

      Before end of trial, Judge, in a Procedural Order, seeks the federal and state rules and statutes to be employed in our court presentation.  That order allows me to file with federal court a Notice of Removal (28 USC  § 1446 (b) (3) to transfer the case from state to federal court.  First Affidavit, I testify that I have, as per ordered, produced the entirety of the case, arranged in the order it was filed.  Landlord has acquired another attorney for the federal court who quickly files a Motion to Remand (28 U.S. § 1447. (c)) seeking to return the case to state court.  I file an Answer for federal court to the Forcible Entry and Detainer Complaint in which I include the pleadings from my own case as I hope to attach it to the eviction because of cases’ correspondence and I attach a Motion to Consolidate (F.R.C. P. 42.) Then  I respond to landlord’s motion to remand and, realizing the motion to consolidate is the wrong approach, I file a Motion For Supplemental Jurisdiction (28 U.S. Code § 1367) See below.  Landlord has filed a response to which I am now working on a reply

MOTION FOR SUPPLEMENTAL JURISDICTION

28 U.S. CODE §1367

Except as provided in subsections (b) and (c) or as expressly provided otherwise by Federal statute, in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution. Such supplemental jurisdiction shall include claims that involve the joinder or intervention of additional parties.

1.      In its attempt to join instant case with Respondent’s state action, Lorraine Saint Pierre v. Preservation Management Inc. docket # DC 19-386 a state civil court action, she chose the wrong path, which was an attempt at consolidating the two cases.  The proper course as stated above is through 28 U.S. Code § 1367 (a).  Although, it must be pointed out that Petitioner’s response and opposition to the consolidation motion was a manifest example that this is a Slapp suit.  It would have been to its advantage to have the matter, which is at the heart of both cases, settled in one setting and not let it drag on for an extended period of time.

2.      In Respondent’s response to the Forcible Entry and Detainer complaint to this court filed on December 7, 2020, she asserted a number of counterclaims, (Fed. R.Civ.P.13(a):

a) That she was being discriminated against for noise complaints for her hearing disability per the Fair Housing Act and also 14 M.R.S.A. §6001(5).

b) Petitioner’s complaints, save for the gazebo and garden, were not part of her HUD lease, hence not legitimate reasons for eviction per HUD rules.

c) That the complaints were part of Landlord Agent’s House rules which are not permissible.  Only Landlord may create House Rules.  It did not.

d) That the House Rules were denied existence in Respondent’s own case against Agent, hence could not be employed in instant case -- judicial estoppel in common law.

e) According to HUD eviction rules Respondent was not served a 30-day Notice of Termination.

f) The eviction was retaliatory because Respondent complained to Landlord in writing, 2 months before it filed for eviction, about the mold situation in her home -- Fair Housing Act.

g)  The eviction was a Slapp suit because of its specious complaints, its ongoing  harassment since Respondent own suit, the seizure of her property -- 1st amendment.

h) Respondent was given written permission to place the gazebo in the yard per HUD lease requirement.  Landlord breached said lease by not honoring its obligation.

i) The Waiver doctrine. Through Landlord’s course of conduct he waived his right to the yard as a “common area” per permission granted for Respondent’s gazebo to be placed there, for permission granted to another tenant to have a patio in front of her unit, for others to have gardens, outdoor furniture, enclose their areas with fencing, stones, hedging, and so forth -- equitable estoppel.

j) Curtilage, common law.  The area surrounding a tenant’s home, what Landlord has labeled, “the front of their units” is the curtilage of Respondent’s home, a private space not to be violated.  

k) Mistreatment of residents, arbitrary and capricious actions, lack of equity, encouraging friction among tenants, which are against HUD rules, the Fair Housing Act.

3.      Some of the above stated counterclaims may be considered compulsory and others permissive, but most have federal question jurisdiction.  Federal Rule of Civil Procedure 13(b) states the rule for permissive counterclaims.  Under the rule, “[a] pleading may state as a counterclaim any claim against an opposing party not arising out of the transaction or occurrence that is the subject matter of the opposing party’s claim.”  These claims form part of the “same case or controversy.”

In the case of City of Chicago, et al., petitioners, v. international college of Surgeons et al. 522 U.S. 156 118 S.Ct.523, 139 L.Ed.2d 525, the court held that “The District Court properly exercised federal question jurisdiction over ICS's federal claims, and properly recognized that it could thus also exercise supplemental jurisdiction over ICS's state law claims. Defendants generally may remove "any civil action brought in a State court of which the [federal] district courts . . . have original jurisdiction.'' 28 U.S.C. §1441(a).”

4.      Section 1367(a) “is a broad grant of supplemental jurisdiction over other claims within the same case or controversy, as long as the action is one in which the district court would have original jurisdiction.”  Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 558 (2005).  This “broad grant of supplemental jurisdiction” extends to “claims involving joinder or intervention of additional parties.” 

5.      Respondent’s own suit has unfolded to a point in which both parties submitted pre-trial memos in May of 2020 and await the court’s decision to schedule its pretrial conference and trial.  The Covid-19 virus has put a damper on its progress.  Attached is Respondent’s filed Pre-Trial Memo, which reflect the same federal issues presented in instant case. 

6.      In Channell v. Citicorp National Services, Inc. 89 F.3d at 385, the court held that “§ 1367 has extended the scope of supplemental jurisdiction, as the statute’s language says, to the limits of Article III—which means that ‘[a] loose factual connection between the claims can be enough, quoting from Ammerman v. Sween, 54 f.3d 423 424 (7th cir. 1995.  See also the 2nd Circuit in Jones v. Ford Motor Credit Co., 358 F.3d at 213 which hold that permissive counterclaims may be subject to supplemental jurisdiction under §1367.

7.      Petitioner, that is, the limited partnership of NFG Housing Partners is comprised of 4 individuals, Cullen Ryan, Erin Cooperrider, Kyra Walker, James Gwilym and its general partner, CHOM Development Corporation whose head is Drew Anderson.  He has full oversight, complete control of the limited partnership and bears liability for the debts and obligations of the business.

There is CHOM – Community Housing of Maine, another corporation which appears to be an arm of Drew Anderson’s, CHOM Development Corporation located a 1 City Center in Portland.  And the four partners of NFG Housing Partners, LP, Ryan, Cooperrider, Walker  and Gwilym are also partners at CHOM and similarly located a 1 City Center where the partners have their offices.  Then again there is Northfield Green Associates, which is another corporation with the same 4 partners. These corporations have relegated responsibility for the complex of buildings and the tenants at Northfield Green to a maintenance company.

8.      Petitioner in instant case is Landlord of the premises where Respondent resides.  In her state court case, Respondent is Landlord’s agent, Preservation Management, Inc.  Lucia Rivera the manager, of said premises, stated at trial when confronted with HUD rules that her company was subject to Landlord’s dictates; it is they that her company serves, not HUD.  For all intent and purposes, Landlord and its agent act as one in both cases.

9.      Respondent hereby moves, pursuant to 28 U.S. CODE §1367(a), that the Court establish ancillary jurisdiction to Lorraine Saint Pierre v. Preservation Management Inc.s) docket # DC 19-386 a state civil court action.  Both cases substantially involve facts concerning the right of Tenant to use and enjoy the yard abutting her apartment, what courts have considered the curtilage of a person’s home, the permission granted for the placement of gazebo in yard and the Department of Housing and Urban Development, HUD Occupancy Handbook Rules on House Rules that may solely be created by Landlord and not its agent.

10.    Ancillary jurisdiction in these circumstances advances the policy that considerations of judicial economy strongly favor simultaneous resolution of all claims growing out of one event.  Here these considerations overwhelmingly support the Court’s ancillary jurisdiction of instant action with the Saint Pierre v. Preservation Management Inc. case because the crux of Landlord’s eviction case rests primarily on the only two legitimate lease violation complaints, the gazebo placed in yard and her garden.

         For the foregoing reasons, supplemental jurisdiction is appropriate under the circumstances of these cases as it will not cause inconvenience, confusion, or prejudice to any party.  Accordingly, the Court should grant Respondent motion for supplemental jurisdiction.

Dated December 21, 2020                                           Respectfully submitted,

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 The favorite essay this past month has been Nagual