The opinion of the court was delivered by: Honorable Freda L. Wolfson, United States District Judge
Presently before the Court is a motion, filed by defendants Tower Management Service, L.P., (d.b.a. SunnyBrae Apartments); Barbara Perry; John Does 1-10; and John Doe Corporations 1-10 (collectively "Defendants"), to dismiss all claims of plaintiff Denise Bell ("Plaintiff") pursuant to Fed. R. Civ. P. 12(b)6. Plaintiff brings two counts under N.J.S.A. 10:5-12, the New Jersey Law Against Discrimination ("NJ-LAD"), and a third count under the Fair Housing Amendments Act ("FHAA").*fn1 The Court has considered the parties' moving, opposition and reply papers, as well as the parties' supplemental papers. For the reasons that follow, the Court grants Defendants' motion to dismiss Plaintiff's FHAA claim without prejudice, and Plaintiff is granted leave to amend the Complaint if she can, in good faith, plead a causal nexus between her disability and the requested accommodation, as explained herein. Further, the Court will not rule on Plaintiff's remaining state law claims until it can be ascertained whether Plaintiff can sufficiently plead an FHAA claim, because if not, the Court declines to exercise supplemental jurisdiction over the state law claims.
I. Background and Procedural History
Since Defendants move to dismiss Plaintiff's claims pursuant to Fed. R. Civ. P. 12(b)(6), the following version of events assumes Plaintiff's allegations to be true.
Plaintiff suffers from a number of disabilities, including a stroke that left her with expressive aphasia and reduced reflexes, that "have rendered her unable to work." Amended Complaint ("Complaint"), ¶7. The "Social Security Administration has adjudicated [Plaintiff] to be disabled and unable to work as of February 23, 2004." Id. at ¶8. She receives benefits under the federal Supplemental Security Income program and was approved for a personal "tenant-based" rental assistance voucher under the rental assistance program sponsored by the State of New Jersey under N.J.S.A. 52:27D-287.1 et seq. and regulations governing that program, N.J.A.C. 5:42-1.1 et seq. ("S-RAP"). This entitled her to a rent subsidy for a one-person household. Id. at ¶9. The S-RAP program provides participants with an income-based rental assistance grant, which allows them to seek market-based housing despite their low personal incomes. Id. at ¶11. Specifically, the "S-RAP program assures that the cost of an apartment will be affordable to the plaintiff and other participants in the program by ensuring that a portion of the rental payment will be paid by the State of New Jersey." Id. at ¶12.
In November 2005, Plaintiff applied for a one-bedroom apartment at defendant Sunnybrae Apartments, which requires applicants to show a minimum income of $28,000 annually, or $2,333.33 per month. Id. at ¶¶13, 15. Defendants "consider all sources of income in arriving at the minimum income amount" and "view the S-RAP payment as dollar value income," even though it subsidizes a percentage of a tenant's rental obligation. Id. at ¶15. Plaintiff's total monthly income at the time of her application, including social security income ($610.25) and potential funds from S-RAP ($874)*fn2 , would not exceed $2,333.33, and hence her annual income was below the minimum income requirement. Id. at ¶¶14-18.
At various times in December 2005, Plaintiff informed Defendants that her ability to meet her rent obligations "should not be an issue because the monies paid by S-RAP are calculated as a percentage of her rental obligation sufficient to ensure that rent will be affordable to her." Id. at ¶19. Further, she requested that the minimum income policy be waived as a reasonable accommodation of her disability, which "prevented her from working and thus meeting defendants' minimum income policy." Id. Defendants refused to waive the minimum income requirement. Id. at ¶20.
In March 2006, Plaintiff found another suitable apartment with a higher rent. Id. at ¶¶23-24. From March 2006 to February 2007, the rent was $915 per month, with Plaintiff paying $238, and the S-RAP program paying the difference of $677. As of February 2007, the base rent became $930 per month, with Plaintiff paying $214 and the S-RAP program paying the difference of $716. Id. at ¶¶24-26. Had Defendants accepted Plaintiff as a tenant, her required contribution - taken out of her social security income - would have been less than the above amounts. Id. at ¶28.
Plaintiff filed this lawsuit on April 17, 2007, in the Superior Court of New Jersey, Mercer County, asserting several state law claims. Defendants' Brief, Exhibit A. The court dismissed Plaintiff's Complaint without prejudice, providing for the right to amend. Id. at Exhibit C. Plaintiff filed an Amended Complaint on October 4, 2007, adding a federal claim under the FHAA. Id. at Exhibit D. Defendant removed the case to this Court on November 5, 2007.
When reviewing a motion to dismiss on the pleadings, courts "accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (citation and quotations omitted). Recently, in Bell Atlantic Corporation v. Twombly, 127 S.Ct. 1955 (2007), the Supreme Court clarified the 12(b)(6) standard. Specifically, the Court "retired" the language contained in Conley v. Gibson, 355 U.S. 41, 45-46 (1957), that "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Id. at 1968 (quoting Conley, 355 U.S. at 45-46). Instead, the factual allegations set forth in a complaint "must be enough to raise a right to relief above the speculative level." Id. at 1965. As the Third Circuit has stated, "[t]he Supreme Court's Twombly formulation of the pleading standard can be summed up thus: 'stating . . . a claim requires a complaint with enough factual matter (taken as true) to suggest' the required element. This 'does not impose a probability requirement at the pleading stage,' but instead 'simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of' the necessary element." Phillips, 515 F.3d at 234 (quoting Twombly, 127 S.Ct. at 1965).
B. Plaintiff's FHAA Claim
1. The Elements of an FHAA Reasonable Accommodation Claim
Plaintiff claims that Defendants violated the FHAA, 42 U.S.C.A. §§ 3601 et seq., by failing to provide a reasonable accommodation for Plaintiff's disability in the form of a waiver to Defendants' minimum income requirement. The FHAA provides in pertinent part:
[I]t shall be unlawful-- . . .
(f)(1) To discriminate in the sale or rental, or to otherwise make unavailable or deny, a dwelling to any buyer or renter because of a handicap of-
(A) that buyer or renter,
(B) a person residing in or intending to reside in that dwelling after it is so sold, rented, or made available; or
(C) any person associated with that buyer or renter.
42 U.S.C.A. § 3604. Under the FHAA, discrimination is defined to include "a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling." Id. at § 3604(f)(3)(B). The elements of an FHAA failure to accommodate claim are as follows:
In order to make out a claim for a Fair Housing Act violation based on failure to provide a reasonable accommodation, [Plaintiff] must show: i) that he is suffering from a disability as defined under 42 U.S.C. § 3602(h)(1); ii) that the Defendants knew or reasonably should have been expected to know of the disability; iii) that reasonable accommodation of [Plaintiff's] disability might be necessary to afford him an equal opportunity to use and enjoy his dwelling; and iv) that the Defendants refused to make a reasonable accommodation.
United States v. Port Liberte Condo 1 Ass'n, Inc., Docket No. 04-2783, 2006 WL 2792780, *5 (D.N.J. Sept. 27, 2006) (citation omitted); see also Feeland v. Sisao, Docket No. 07-3741, 2008 WL 906746, *3 (E.D.N.Y. Apr. 1, 2008). Thus, "[t]o establish a prima facie case, a plaintiff must show that the requested accommodation was necessary in order for handicapped persons to have an equal opportunity to use and enjoy a dwelling." Dr. Gertrude A. Barber Center, Inc. v. Peters Tp., 273 F.Supp. 2d 643, 652 (W.D. Pa. 2003) (citing Lapid-Laurel, 284 F.3d at 457). Defendants' motion to dismiss addresses only the third element: whether Plaintiff has plead sufficient facts to satisfy "the initial burden of showing that the requested accommodation is necessary to afford handicapped persons an equal opportunity to use and enjoy a dwelling." Lapid-Laurel, 284 F.3d at 457.
2. Second and Seventh Circuit Precedent
The Third Circuit has yet to address the precise question posed by Defendants' motion: whether the FHAA reasonable accommodation requirement extends to rules, policies and practices that pose obstacles to disabled persons because of their economic circumstances, when such circumstances are caused by the plaintiff's disability. However, Defendants point out that the Second and Seventh Circuits have clearly answered this question in the negative.
In Salute v. Stratford Greens Garden Apartments, 136 F.3d 293 (2d Cir. 1998), the Second Circuit held that the FHAA's accommodation requirement does not apply to a landlord's decision to reject a prospective disabled tenant because of his reliance on low-income assistance from the federal government, specifically, the Section 8 program. "When a Section 8 certificate holder finds an apartment that meets the applicable rent guidelines, and the landlord has agreed to participate in the Section 8 program, the tenant pays in rent an amount not exceeding 30% of the tenant's gross income, and the government contracts with the private landlord to pay a subsidy equal to the remainder of the market rent." Salute, 136 F.3d at 296. The court found that a "landlord's participation in the Section 8 program" was not an "'accommodation' (regardless of its reasonableness) within the meaning of the statute." Id. at 301.
The plaintiffs in Salute tried to bring their claim within the ambit of the FHAA by arguing that their economic status, and hence need for the Section 8 program, was caused by their disability: "[T]hey claim an entitlement to an accommodation that remedies their economic status, on the ground that this economic status results from their being handicapped." Id. The court rejected this claim, holding that "it is fundamental that the law addresses the ...