225px-The_Blob_posterOn April 30, 2008 a group of institutional plaintiffs sued a collection of architects and owners of mixed use properties claiming violations of the accessibility provisions of the Fair Housing Act. Miami Valley Fair Housing Center, Inc. et al v. Steiner + Associates, Inc. et al, Case No. 3:08-cv-00150 (S.D. Ohio). More than four years later, on December 10, 2012, the parties entered into a stipulated judgment that called for an agreed scope of remediation of the three properties named in the original complaint. The case is an example of what I think of as the “too big to finish” problem in FHA litigation. The case as filed was so big, and included so many parties, that it became a procedural quagmire instead of an efficient means to resolve accessibility problems.

In September of 2008, five months after the case was filed the parties all requested that the Court stay the litigation while their respective experts inspected the properties at issue.  The stay was extended for an additional 90 days by a stipulation filed on January 29, 2009.  It isn’t clear what the delays accomplished, but on August 8, 2009, more than a year after the case was filed, the Court finally entered a pre-trial order setting the case for trial in December of 2010.

The case got more complex in the fall of 2009 when some of the Defendants received leave to bring in 19 new third party defendants.  By early 2010 it was clear that the original pre-trial order was not going to work the Court vacated it.  Some of the third party defendants filed motions to dismiss, and it appears that only in February of 2010 were all the parties finally before the Court with an answer or dilatory motion. In April of 2010, two full years after suit was filed, the Court was still occupied with motion practice involving the third party defendants. Only in September of 2010 had the Court finally granted most of the third party motions to dismiss. The third party plaintiffs were granted leave to appeal and did so. On January 31, 2011, the Court stayed the original action pending the outcome of those appeals.

The January 2011 Stay was continued in December of 2011.  The Court of Appeals ruled in May of 2012, but did not reach the merits of the issue of appeal because it found the District Court had failed to first consider personal jurisdiction.  The District Court then lifted its stay of the litigation and began reconsideration of the personal jurisdiction issues.  That process took place through the fall of 2012, with most of the third party defendants being dismissed at about the same time the original parties settled based on agreed remediation of the three original properties.

Why did it take four years to settle on an agreed remediation? I believe one reason was the scope of the original Complaint, which sought not only remediation of the three named properties, but also a blanket injunction against the future construction of non-complying properties and an order requiring an accessibility survey of every property constructed or designed by the principal architect defendant. The threat posed by such a comprehensive complaint demanded an equally comprehensive effort to share the blame and, more important, the cost of litigation and remediation.

And why did the case finally settle? I did not represent any party in the case, so I don’t have any inside information; however, I imagine it was nothing more complicated than exhaustion on the part of the plaintiffs, who had achieved nothing substantive in four years of litigation and the defendants, who had undoubtedly incurred very large legal fees defending the cases.

This is only an example of a fairly common phenomena; that is, the massive FHA lawsuit that is litigated for years before the parties reach a solution that was available from the time the case was filed. Such cases are profitable for defense counsel and probably for plaintiff’s counsel as well, but in the end seem to delay rather than accomplish the remediation that should be the original goal. All the parties might be better off if plaintiffs chose to bite off smaller challenges with the goal of reaching a conclusion quickly so that the litigation can end and remediation begin.