IN THE UNITED STATES DISTRICT COURT
For The
MIDDLE DISTRICT OF NORTH CAROLINA
NICOLE JOHNSON; RICHARD
JOHNSON; N.J., minor child by Nicole
Johnson and Richard Johnson, her parents
and general guardians; and R.J., minor child
by Nicole Johnson and Richard Johnson, his
parents and general guardians;
Plaintiffs,
v.
JUDITH FLEMING, HOWARD J.
FLEMING III, RONALD L. GOLDBERG,
and WHISPERING PINES PROPERTIES,
Defendants.
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Civil Action No. 1:08-cv-418
FIRST AMENDED COMPLAINT
COME NOW Plaintiffs, pursuant to Rule 15(a)(1)(b) of the Federal Rules of Civil Procedure,
by and through the undersigned counsel, and amend their original complaint to allege and say:
INTRODUCTION
1. This is an action for denial of access to rental housing on the basis of race and family
status, discrimination in contracting for real property on the basis of race, wrongful eviction of
residential tenants without resort to judicial process, breach of covenant of quiet enjoyment, trespass
to real property, trespass to personal property, unfair or deceptive trade practices, and interference
with Plaintiffs’ civil rights arising from Defendants’ actions to evict Plaintiffs from their leased
premises. Plaintiffs seek relief to recover actual, compensatory, and punitive damages.
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JURISDICTION AND VENUE
2. Jurisdiction is conferred on this Court by 42 U.S.C. §§ 3613 (a), 3612(a), and 28 U.S.C.
§§ 1331, 1343(a)(3) - (4), and 1367.
3. Venue is proper in this Court under 28 U.S.C. § 1391(b) because Defendants reside in
this judicial district and the events giving rise to this claim occurred in this judicial district.
PARTIES
4. Plaintiff Nicole Johnson is an African-American citizen and resident of Moore County,
North Carolina who attempted to rent, and did rent, residential property from Defendants Judith and
Howard Fleming, and who received real estate services from Defendant Ron Goldberg, an employee
or agent of Defendant Whispering Pines Properties.
5. Plaintiff Richard Johnson is an African-American citizen and resident of Moore County,
North Carolina who attempted to rent, and did rent, residential property from Defendants Judith and
Howard Fleming, and who received real estate services from Defendant Ron Goldberg, an employee
or agent of Defendant Whispering Pines Properties.
6. Plaintiff N.J. is a minor child and the daughter of Plaintiffs Richard and Nicole Johnson
and is an African-American citizen and resident of Moore County, North Carolina. This action is
brought on behalf of N.J. by her guardian and representative, Nicole Johnson.
7. Plaintiff R.J. is a minor child and the son of Plaintiffs Richard and Nicole Johnson, and is
an African-American citizen and resident of Moore County, North Carolina. This action is brought
on behalf of R.J. by his guardian and representative, Nicole Johnson.
8. Upon information and belief, Defendant Judith Fleming is a citizen and resident of Moore
County, North Carolina.
9. Upon information and belief, Defendant Howard Fleming is a citizen and resident of
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Moore County, North Carolina.
10. Upon information and belief, at all times relevant to this action, Judith Fleming, along
with her husband Howard Fleming, (collectively, “Landlords”) owned the house located at 27 Pine
Ridge Drive, Whispering Pines, North Carolina (the “Rental Unit”).
11. Upon information and belief, Defendant Ron Goldberg is a real estate broker licensed in
the state of North Carolina and is involved in the business of renting or selling dwellings. At all
times relevant to this action, Defendant Goldberg was an employee or agent of Defendant
Whispering Pines Properties. Defendant Goldberg provided his professional services to the
Landlords in renting the Rental Unit.
12. Upon information and belief, Defendant Whispering Pines Properties is a private real
estate agency located at One Clubhouse Boulevard, Whispering Pines, North Carolina, 28327.
George Ellis is the Broker-In-Charge. Upon information and belief, Defendant Whispering Pines
Properties is not registered with the North Carolina Secretary of State as a corporation, limited
liability company, or partnership.
FACTS
13. In January 2008, Plaintiffs sought to relocate from Columbus, Ohio to Moore County,
North Carolina.
14. Plaintiffs engaged the services of Defendants Ron Goldberg and Whispering Pines
Properties for assistance in finding a rental home in or around Whispering Pines, North Carolina.
15. On January 21, 2008, Plaintiff Richard Johnson met Defendant Ron Goldberg at the
offices of Defendant Whispering Pines Properties. Mr. Goldberg then took Mr. Johnson to view
single family homes available for rent in Whispering Pines.
16. Mr. Johnson has light skin and red hair.
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17. Among the rental homes Mr. Goldberg showed Mr. Johnson was the Rental Unit owned
by the Landlords, located at 27 Pine Ridge, Whispering Pines, North Carolina.
18. Mr. Goldberg had an agreement with the Landlords that he would help them rent the
Rental Unit.
19. Upon information and belief, Mr. Goldberg accessed the Rental Unit by opening a
lockbox, entering the security code, and then entering the home through the garage.
20. Mr. Goldberg escorted Mr. Johnson inside the Rental Unit.
21. Mr. Goldberg gave Mr. Johnson a complete showing of the Rental Unit.
22. Mr. Goldberg provided Mr. Johnson detailed information about the Rental Unit
including, but not limited to the number of bedrooms, number of bathrooms, and available amenities.
23. When Mr. Johnson expressed interest in the Rental Unit, Mr. Goldberg gave him the
Landlords’ contact information.
24. On or about January 23, 2008, Plaintiffs and Landlords finalized the availability of the
Rental Unit and terms of rent over the telephone. Plaintiffs and Landlords agreed that the move-in
date would be January 26, 2008.
25. In reliance upon the agreed terms regarding the Rental Unit and move in date, Plaintiffs
arranged to sub-lease their residence in Ohio beginning January 26, 2008 and to relocate to Moore
County, North Carolina.
26. At no time during these initial conversations did the Landlords or Mr. Goldberg discuss
or require a review of Plaintiffs’ credit history.
27. On January 26, 2008, Mrs. Johnson called Defendant Judith Fleming and confirmed that
Mrs. Fleming would meet Plaintiffs at the Rental Unit on January 27, 2008 to execute the lease and
to allow Plaintiffs to move into the Rental Unit.
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28. On January 27, 2008, Plaintiffs and Defendant Judith Fleming met at the Rental Unit.
Plaintiffs arrived with friends and all of their belongings. This was the first time Mrs. Fleming met
Plaintiffs in person, and the first time any Defendant met Mrs. Johnson, who, unlike her husband,
has ebony skin.
29. Mr. Goldberg had provided to the Landlords a lease for Plaintiffs to sign to rent the
Rental Unit.
30. Plaintiffs signed the lease, tendered a check in the amount of $2,200 for a security deposit
and first month’s rent, and completed a form providing income information and permission to obtain
the Johnsons’ credit report.
31. Mrs. Fleming also signed a copy of the lease. Mrs. Fleming then allowed Plaintiffs to
move all their possessions into and occupy the Rental Unit.
32. Pursuant to Mr. Goldberg’s advice and suggestion, Mrs. Fleming requested that
Plaintiffs pay a pro-rated rent for the period from January 27, 2008 to February 1, 2008. Plaintiffs
agreed to pay a pro-rated amount of $40.00.
33. When she left the Rental Unit, Mrs. Fleming took the only copy of the signed lease with
her.
34. After moving all of the Plaintiffs’ possessions into the Rental Unit, Mrs. Johnson called
utility companies to open accounts in Plaintiffs’ names at the Rental Unit. Plaintiffs continued
unpacking their possessions and were in and out of the Rental Unit on January 27 and January 28,
2008.
35. On January 29, 2008, Mr. Goldberg called Mrs. Johnson on behalf of the Landlords to
inform her that the Landlords would no longer rent the Rental Unit to Plaintiffs, and that the
Landlords requested that Plaintiffs vacate the Rental Unit.
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36. During the same conversation, Mr. Goldberg told Mrs. Johnson that Mr. Fleming wanted
them to vacate the property because Mr. Fleming needed to move his mother into the Rental Unit.
37. Also during this conversation, Mr. Goldberg attempted to negotiate on behalf of the
Landlords for the Plaintiffs’ to voluntarily vacate the Rental Unit.
38. On January 30, 2008, Mr. Fleming contacted Mrs. Johnson and again asked Plaintiffs to
vacate the Rental Unit. Mrs. Johnson stated that they intended to stay in the Rental Unit, pursuant to
the lease.
39. On January 31, 2008, Mr. Goldberg called Plaintiffs on behalf of the Landlords to inform
them that the Landlords refused to continue to allow them to occupy the Rental Unit because of an
unsatisfactory credit report.
40. During this conversation, Mr. Goldberg also told Plaintiffs that the Landlords stated that
the Plaintiffs need to remove all of their belongings from the Rental Unit immediately and that the
Landlords intended to change the locks to the Rental Unit and evict Plaintiffs.
41. On or about February 1, 2008, Landlords placed a “No Trespassing” sign on the Rental
Unit and changed the locks and security code, depriving Plaintiffs access to or use of the Rental Unit
and to all of their personal possessions, which were locked inside the Rental Unit.
42. On or about February 1, 2008, Landlords also contacted the Whispering Pines Police
Department to alert them that former tenants may try to re-enter the home.
43. On February 1, 2008, Plaintiffs arrived at the Rental Unit and discovered that the
Landlords changed the locks and security code, depriving Plaintiffs access to or use of the Rental
Unit and to all of their personal possessions, which were locked inside the Rental Unit. Plaintiffs
called the Moore County Sheriff Department, who subsequently called Whispering Pines Police
Department.
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44. Upon arriving at the Rental Unit, a Whispering Pines police officer asked Mrs. Johnson
to come to the Whispering Pines police station in order to tell the police chief what had happened.
After telling her story, the police chief informed Mrs. Johnson that the Landlords had already called
and the police department could not help her. Upon leaving the police chief’s office, Mrs. Johnson
saw that her day care provider had brought minor Plaintiffs N.J. and R.J. to the police station, where
they overheard Mrs. Johnson’s conversation with the police chief and were crying.
45. The Landlords refused to allow Plaintiffs to re-enter the Rental Unit or retrieve their
possessions until March 1, 2008, and then only in the presence of Defendants’ counsel.
46. Upon information and belief, as early as March 21, 2008 the Landlords made the Rental
Unit available and have listed the Rental Unit with Sarvis Management.
47. Upon information and belief, the Rental Unit is currently available for rent.
48. As a result of the Defendants’ actions, Plaintiffs have each suffered and are continuing to
suffer great harm and injury, including but not limited to having to accept housing that is outside of
the Town of Whispering Pines and the amenities of that community, less conveniently located and
more expensive than the Rental Unit, economic loss, humiliation, embarrassment, emotional distress,
mental anguish, stress, depression, and the deprivation of their civil rights.
FIRST CLAIM FOR RELIEF
Violation of the Fair Housing Act of 1968, 42 U.S.C. § 3601, et. seq.
49. The allegations of paragraphs 1 through 48 are re-alleged and incorporated by reference
as if fully set forth herein.
50. The Rental Unit is a dwelling as defined by 42 U.S.C. § 3602 (b). Landlords owned the
property at the time Plaintiffs sought to rent the dwelling.
51. Plaintiffs are African-American and are members of a protected class under 42 U.S.C. §
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3604 (a), (b) and (d).
52. Plaintiffs were qualified to and did rent the dwelling on January 27, 2008.
53. Defendants Howard and Judith Fleming, in their capacity as owners and landlords, and
using the services of Defendant Goldberg, in his capacity as a real agent and person in the business
of selling and renting dwellings, made the Rental Unit unavailable to Plaintiffs and evicted them on
February 1, 2008.
54. Following the eviction of the Plaintiffs, the Rental Unit remained available for rent.
55. Defendants have discriminated against Plaintiffs because of their race and family status,
in violation of the Fair Housing Act of 1968, 42 U.S.C. § 3601, et. seq., and have acted intentionally,
willfully, and with reckless disregard for Plaintiffs’ federally protected civil rights.
56. Defendant Whispering Pines Properties is liable for the violation of Plaintiffs’ rights
under 42 U.S.C. § 3601, et. seq. because, at all times relevant hereto, Defendant Goldberg was
acting with the consent of, under the control and supervision of, and within his authority as
employee or agent of Whispering Pines Properties.
57. As a result of the Defendants’ actions, Plaintiffs have suffered and are continuing to
suffer great harm and injury, including but not limited to economic loss, humiliation,
embarrassment, emotional distress, mental anguish, stress, depression, and the deprivation of the
right to housing on an equal basis with other persons regardless of race and family status.
SECOND CLAIM FOR RELIEF
Violation of the Civil Rights Act of 1866, 42 U.S.C. §§ 1981 and 1982
58. The allegations of paragraphs 1 through 57 are re-alleged and incorporated by reference
as if fully set forth herein.
59. Defendant Landlords and Defendant Goldberg have discriminated against Plaintiffs
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because of their race in violation of the Civil Rights Act of 1866, 42 U.S.C. §§ 1981 and 1982 and
have acted intentionally, willfully, and with reckless disregard for Plaintiffs’ federally protected civil
rights.
60. Defendant Whispering Pines Properties is liable for the violation of Plaintiffs’ rights
under 42 U.S.C. § 3601, et. seq. because, at all times relevant hereto, Defendant Goldberg was
acting with the consent of, under the control and supervision of, and within his authority as
employee or agent of Whispering Pines Properties.
61. As a result of the Defendants’ actions, Plaintiffs have suffered and are continuing to
suffer great harm and injury, including but not limited to economic loss, humiliation,
embarrassment, emotional distress, mental anguish, stress, depression, and the deprivation of the
right to be treated on an equal basis with other persons regardless of race.
THIRD CLAIM FOR RELIEF
Violation of N.C. Gen. Stat. § 42-25.6, et. seq.
62. The allegations of paragraphs 1 through 61 are re-alleged and incorporated by reference
as if fully set forth herein.
63. Plaintiffs became tenants of the Landlords on or about January 27, 2008 when both
parties signed the lease.
64. Once the tenancy was in effect, Landlords’ exclusive remedy to regain possession of the
Rental Unit was by means of Article 3 of Chapter 42 of the North Carolina General Statutes
(“Summary Ejectment”).
65. Defendants Howard and Judith Fleming, in their capacity as owners and landlords, and
using the services of Defendant Goldberg, in his capacity as an agent of the Landlords, removed
Plaintiffs from the Rental Unit in contravention of the statutory Summary Ejectment procedures and
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denied Plaintiffs access to and use of the Rental Unit.
66. Plaintiffs were denied access to and use of the Rental Unit until March 1, 2008, at which
time they removed their possessions in presence of Landlords’ counsel.
67. Pursuant to N.C. Gen. Stat. § 42-25.9, Plaintiffs are entitled to actual damages to be
determined at trial.
FOURTH CLAIM FOR RELIEF
Breach of Covenant of Quiet Enjoyment
68. The allegations of paragraphs 1 through 67 are re-alleged and incorporated by reference
as if fully set forth herein.
69. Plaintiffs’ tenancy carried with it an implied covenant of quiet enjoyment and peaceable
possession of the Rental Unit during the terms of the lease.
70. Defendants Howard and Judith Fleming and Defendant Goldberg, in his capacity as agent
of the Landlords, breached Plaintiffs’ right to quiet enjoyment and possession of the Rental Unit by
evicting Plaintiffs from the Rental Unit without resorting to judicial process.
71. Defendants have acted intentionally, willfully, and with reckless disregard for Plaintiffs’
rights and privileges under the covenant of quite enjoyment. As a result, Plaintiffs are entitled to
damages in an amount to be determined at trial.
FIFTH CLAIM FOR RELIEF
Trespass to Real Property
72. The allegations of paragraphs 1 through 71 are re-alleged and incorporated by reference
as if fully set forth herein.
73. Upon becoming tenants, Plaintiffs had the exclusive right of possession of the Rental
Unit.
74. Subsequent to Plaintiffs becoming tenants, Landlords entered the Rental Unit without the
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Plaintiffs’ authorization.
75. After entering the Rental Unit without authorization, Landlords changed the locks and
security codes, denied Plaintiffs access to or use of the Rental Unit, posted a “No Trespassing” sign
in the window, and falsely informed the Whispering Pines Police Department that Plaintiffs may
trespass upon the property.
76. Defendant Landlords have acted intentionally, willfully, and with reckless disregard for
Plaintiffs rights to exclusive possession of the Rental Unit, as a result Plaintiffs, are entitled to actual
and punitive damages in an amount to be determined at trial.
SIXTH CLAIM FOR RELIEF
Trespass to Personal Property
77. The allegations of paragraphs 1 through 76 are re-alleged and incorporated by reference
as if fully set forth herein.
78. On or about January 27, 2008, pursuant to their rights and privileges under the lease,
Plaintiffs moved their personal property into the Rental Unit.
79. Subsequent to Plaintiffs placing all of their personal property in the Rental Unit,
Landlords entered the Rental Unit without authorization, changed the locks and security codes,
posted a “No Trespassing” sign in the window, and falsely informed the Whispering Pines Police
Department that Plaintiffs may trespass upon the property.
80. Upon information and belief, Defendant Landlords removed a folder from the Rental
Unit. The folder contained information that would have assisted Plaintiffs’ transition to the area.
81. Defendants Judith and Howard Fleming, in their capacity as owners and landlords,
constructively seized and interfered with access to and use of all of Plaintiffs’ personal property
inside the Rental Unit on February 1, 2008 until March 1, 2008.
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82. Defendant Landlords have acted intentionally, willfully, and with reckless disregard for
Plaintiffs’ rights to exclusive possession of their personal property. As a result, Plaintiffs are
entitled to damages in an amount to be determined at trial.
SEVENTH CLAIM FOR RELIEF
Unfair and Deceptive Trade Practices
83. The allegations of paragraphs 1 through 82 are re-alleged and incorporated by reference
as if fully set forth herein.
84. Defendants Howard and Judith Fleming and Defendant Goldberg in breaching Plaintiffs’
right to quiet enjoyment, wrongfully evicting Plaintiffs from the Rental Unit, and discriminating
against Plaintiffs in access to housing engaged in unfair and deceptive trade practices affecting
commerce in violation of N.C. Gen. Stat. § 75-1.1.
85. Defendant Landlords’ trespass to real property and trespass to personal property are
unfair and deceptive trade practices affecting commerce in violation of N.C. Gen. Stat. § 75-1.1.
86. Defendant Whispering Pines Properties is liable for the violation of Plaintiffs’ rights
under N.C. Gen. Stat. § 75-1.1 because, at all times relevant hereto, Defendant Goldberg was acting
with the consent of, under the control and supervision of, and within his authority as an employee or
agent of Whispering Pines Properties.
87. Defendants have acted intentionally, willfully, and with reckless disregard for Plaintiffs’
rights and for the established public policy in the state, and are immoral, unethical, and
unscrupulous, and as a result, Plaintiffs have suffered damages in an amount to be determined at
trial.
88. Pursuant to N.C. Gen. Stat. § 75-16, Plaintiffs are entitled to recover treble their actual
damages resulting from Defendants’ unfair and deceptive trade practices.
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EIGHTH CLAIM FOR RELIEF
Interference with Civil Rights
89. The allegations of paragraphs 1 through 88 are re-alleged and incorporated by reference
as if fully set forth herein.
90. Defendants Howard and Judith Fleming and Defendant Goldberg discriminated against
Plaintiffs because of their race and conspired to interfere with Plaintiffs civil rights to equal access to
housing and housing opportunities.
91. Defendants’ actions constitute a pattern of repeated harassment and indirect threats to
property which were designed and committed to interfere with Plaintiffs’ civil rights, violating N.C.
Gen. Stat. § 99D-1.
92. Defendants’ actions interfered with Plaintiffs’ civil rights to equal housing and equal
housing opportunities without discrimination.
93. Defendants have acted intentionally, willfully, and with reckless disregard for Plaintiffs’
civil rights, and as a result, Plaintiffs are entitled to actual and punitive damages in an amount to be
determined at trial.
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs pray that the Court:
1.
Find all Defendants’ actions complained of in violation of the Fair Housing Act of
1968, as amended, 42 U.S.C. § 3601, et. seq.; and the Civil Rights Act of 1866, 42
U.S.C. §§ 1981 and 1982.
2.
Find Defendant Landlords’ and Defendant Goldberg’s actions complained of as a
violation of the North Carolina Residential Ejectment of Tenants Act, N.C. Gen. Stat. §
42-25.6, a breach of Plaintiffs’ covenant of quiet enjoyment, and a violation of N.C.
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Gen. Stat. § 99D-1.
3.
Find Defendant Landlords’ actions complained of as trespass to real property and
trespass to personal property.
4.
Find all Defendants’ actions complained of an unfair and deceptive trade practice in
violation of N.C. Gen. Stat. § 75-1.1, and award Plaintiffs treble damages and civil
penalties.
5. Permanently enjoin Defendants, their agents, and employees from discriminating against
any person in violation of the Fair Housing Act of 1968, as amended, or the Civil Rights
Act of 1866.
6.
Award Plaintiffs appropriate actual, compensatory, and punitive damages in an amount
in excess of $10,000 and against the Defendants, jointly and severally.
7.
Award Plaintiffs costs and reasonable attorneys’ fees in this action.
8.
Award Plaintiffs such other relief as the Court deems just and equitable.
JURY DEMAND
Pursuant to Rule 38(b) of the Federal Rules of Civil Procedure, Plaintiffs demand a trial by
jury of all issues so triable in the matter.
This the 28 day of July, 2008.
UNC CENTER FOR CIVIL RIGHTS
VAN CAMP, MEACHAM, & NEWMAN,
PLLC
/s/ Evelyn Savage
NC Bar No. 34374
PO Box 1389
2 Regional Circle
Pinehurst, North Carolina 28374
evelyn@vancamplaw.com
Phone: (910) 295-2525
Fax: (910) 295-1520
/s/ Julius Chambers
NC Bar No. 769
UNC School of Law, CB 3382
Chapel Hill, NC 27599
jchambe1@email.unc.edu
Phone: (919) 962-4332
Fax: (919) 843-8784
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/s/Mark Dorosin
NC Bar No. 20935
UNC School of Law, CB 3382
Chapel Hill, NC 27599
dorosin@email.unc.edu
Phone: (919) 843-7896
Fax: (919) 843-8784
/s/Diane Standaert
NC Bar No. 35734
UNC School of Law, CB 3382
Chapel Hill, NC 27599
diane@email.unc.edu
Phone: (919) 962-0226
Fax: (919) 843-8784
Attorneys for Plaintiffs
CERTIFICATE OF SERVICE
I hereby certify that I have served the foregoing First Amended Complaint upon the below listed
individuals by electronically filing the document with the Court on this date using the CM/ECF
system.
D. Beth Langely, Esq.
Hagan, Davis, Mangum, Barrett,
Langley, & Hale, PLLC
300 N. Greene Street, Suite 200
Greensboro, NC 27401
blangley@hagandavis.com
William P.H. Cary, Esq.
D.J. O’Brien, Esq.
Brooks, Pierce, McLendon
Humphrey, & Leonard LLP
PO Box 26000
Greensboro, NC 27401-6000
wcary@brookspierce.com
dobrien@brookspierce.com
E. Lawson Brown, Jr. Esq.
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Vernon, Vernon, Wooten, Brown,
Andrews, & Garrett, P.A.
P.O. Drawer 2958
Burlington, NC 27216-2958
elb@varnonlaw.com
This the 28 day of July, 2008
VAN CAMP, MEACHAM, & NEWMAN, PLLC
/s/ Evelyn Savage
NC Bar No. 34374
PO Box 1389
2 Regional Circle
Pinehurst, North Carolina 28374
Phone: (910) 295-2525
Fax: (910) 295-1520
evelyn@vancamplaw.com
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