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Date: 02-23-2023

Case Style:

Karla Ann Westjohn v. Seldin Co.

Case Number: 8:21-cv-00252

Judge: Joseph F. Bataillon

Court: United States District Court for the District of Nebraska (Douglas County)

Plaintiff's Attorney:

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Defendant's Attorney: Julie A. Jorgensen

Description: Omaha, Nebraska civil rights lawyer represented Plaintiff who sued Defendant on a Fair Housing Act violation theory under 42 U.S.C. 3601.

Federal Courthouse - Omaha, Nebraska

Federal Courthouse - Omaha, Nebraska

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In her 99-page First Amended Complaint, the plaintiff, a former tenant of defendant Seldin, alleges inaccessible package delivery and inaccessible entry to her premises. Filing No. 22, First Amended Complaint. She asserts claims for violations of the Rehabilitation Act, 29 U.S.C. § 794, et seq., the Americans with Disabilities Act, 42 U.S.C. § 12102 et seq., the Fair Housing Act, 42 U.S.C. § 3605, the Nebraska Fair Housing Act, Neb. Rev. Stat. § 20-313 et seq. and the Nebraska Civil Rights Act, 20 Neb. Rev. Stat. § 20-127, and she also asserts state law claims for breach of contract and false imprisonment.

The plaintiff alleges that Seldin is a real estate company that owns thousands of apartment complexes in eight states, including Ontario Place in Omaha. Filing No. 22, First Amended Complaint at 3. She alleges that she is blind and moved into an apartment at Ontario Place in 2008. Id. She challenges defendant Seldin's use of Parcel Pending delivery service for packages beginning in 2020, and its implementation of Rently Keyless, a touchscreen keyless entry system, in 2021. Id. at 4-7, 17-18, 21. She contends she has been unable to register for the Parcel Pending service because it is inaccessible to screen readers. Id. at 4-5. She states that she suffered delayed delivery of packages. Id. at 8. Further, she alleges she is unable to register for and utilize the Rently Keyless computer application to gain entry to her apartment and has been locked out.[3] Id. at 17, 19. She states she would have been required to undergo the expense and aggravation of purchasing an iPhone and learning to use the Voice Over app to access the system. Id. at 17-19. She further alleges she could have suffered frostbite and loss of fingers and toes if she were locked out in winter. Id. at 21.

Westjohn states that Seldin did not discuss the Rently Keyless system with the her and the lease does not mention it. Id. at 88. She alleges that as a result of the installation of a new system, it was more difficult for her to gain entry to her building. Id. at 74. She does not allege that she was confined to her apartment.[4]

She also states she moved out of Ontario Place on March 13, 2021. Id. at 8, 22, 80. She currently resides at in Champaign, Illinois. Id. at 1. She acknowledges that she declined to renew her lease in 2021. Id. at 80, 81. She states she intends to return to Omaha because she does not intend to lose touch with friends, plans to attend legal conferences, remains in touch with members of her traditional Catholic parish, and plans to return for worship. Id. at 8-9, 22-23. She does not allege that she intends to return to Omaha to live or to move back to Ontario Place.

Seldin moves to dismiss Westjohn's ADA claims for lack of standing under Federal Rule of Civil Procedure 12(b)(1), and to dismiss the remaining claims, as well as the ADA claim, for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). It argues that the plaintiff lacks standing because she alleges on the face of her First Amended Complaint that she no longer resides at the subject apartment complex.

Further, Seldin argues Westjohn fails to state claims for which relief can be granted. It contends that that the apartment complex, its package delivery system, and access to the fitness room, pool, and clubhouse, are not public accommodations so as to come withing the purview of the ADA's public accommodation clauses. Seldin also argues that the plaintiff has not alleged the breach of any promise so as to state a claim for breach of contract and fails to allege any confinement in order to state a claim for false imprisonment. Further, Seldin contends that Westjohn cannot recover punitive damages for any violation of the state law claims and argues that Westjohn's prayer for punitive damages must be stricken.

The Fair Housing Act, 42 U.S.C. 3601 et seq., prohibits discrimination by direct providers of housing, such as landlords and real estate companies as well as other entities, such as municipalities, banks or other lending institutions and homeowners insurance companies whose discriminatory practices make housing unavailable to persons because of:

race or color
national origin
familial status, or

Outcome: 02/23/2023 50 COPY of Opinion of USCA - 8th Circuit, Appellate Docket Number 22-2853, regarding Notice of Appeal to USCA 44 . (Attachments:
# 1 Counsel Opinion Letter)(LKO) (Entered: 02/23/2023)
02/23/2023 51 JUDGMENT from USCA - 8th Circuit (22-2853) This appeal from the United States District Court was submitted on the record of the district court and briefs of the parties. After consideration, it is hereby ordered and adjudged that the order of the district court in this cause is affirmed in accordance with the opinion of this Court. (LKO) (Entered: 02/23/2023)

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