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United States v. Cochran

United States District Court, E.D. North Carolina, Eastern Division

August 13, 2014


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For United States of America, Plaintiff: Mazen M. Basrawi, U.S. Department of Justice, Washington, DC; Tamica Daniel, U.S. Department of Justice, Civil Rights Division, Washington, DC.

For William I. Cochran, III, WRC, LLC, EKP, LLC, Emlan Properties, LLC, Defendants: Charles L. McLawhorn , Jr., Serenity Shea Rasmussen, LEAD ATTORNEYS, McLawhorn & Associates, Greenville, NC.

For Richard A. Cochran, Defendant: Serenity Shea Rasmussen, LEAD ATTORNEYS, McLawhorn & Associates, Greenville, NC.

For City of Greenville, Greenville Police Department, Interested Party: William J. Little , III, Office of the City Attorney, Greenville, NC.

For Della Boyd, and other parties similarly situated as aggrieved persons or witnesses, Interested Party: Jack Holtzman, LEAD ATTORNEY, Raleigh, NC; Kelly Anne Clarke, LEAD ATTORNEY, Legal Aid of North Carolina, Raleigh, NC.

For Tammy Grimes, Vanessa Bailey, Interested Parties: Jack Holtzman, LEAD ATTORNEY, Raleigh, NC.

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LOUISE W.FLANAGAN, United States District Judge.

This matter comes before the court on defendants' motion for summary judgment (DE 102), and motion for sanctions (DE 112). Also before the court is plaintiff's motion to exclude proposed defense expert Bernard E. Kane, Jr., PhD, (" Dr. Kane" ) (DE 104). These motions have been fully briefed. In this posture, the issues raised are ripe for adjudication. For the following reasons, the court denies defendants' motions, denies without prejudice plaintiff's motion, and directs scheduling of a bifurcated trial.


In September 2012, plaintiff filed complaint asserting a claim under the Fair Housing Act (" FHA" ), 42 U.S.C. § § 3601-3619, against individual defendant William I. Cochran, III (" Cochran" ) and the various entities under which he has managed residential rental properties, namely defendants WRC, LLC (" WRC" ); EKP, LLC (" EKP" ); and EmLan Properties, LLC (" EmLan" ). Plaintiff seeks damages on behalf of certain tenants and associated persons asserted to be " aggrieved persons" allegedly injured by defendants' discriminatory conduct. Plaintiff also seeks declaratory and injunctive relief, as well as a civil penalty. Plaintiff demands trial by jury.

In February 2013, defendants filed a motion to dismiss for failure to state a claim and motion for attorneys' fees. The court denied the motion to dismiss in May 2013, and subsequently dismissed the motion for attorneys' fees without prejudice. On September 19, 2013, plaintiff filed, with leave of court, an amended complaint, adding Richard A. Cochran (" Richard Cochran" ), Cochran's brother, as a defendant.

Plaintiff moved to strike defense expert Dr. Kane on September 20, 2013, arguing that the disclosure of Dr. Kane as a defense expert was untimely. The court denied the motion and allowed an extension of discovery for deposition of Dr. Kane. On December 30, 2013, plaintiff moved for leave to identify six additional witnesses on whose behalf it may seek damages as " aggrieved persons." In opposition, defendants moved to strike designation of two additional witnesses, Justice Blow and Sterling Council, as " aggrieved persons. The court denied the motion for leave, and also denied defendants' motion to strike. The court noted that, after the court's decision on summary judgment, defendants may seek to take depositions of Blow and Council, if issues remain, prior to trial.

Defendants moved for summary judgment on January 14, 2014, and plaintiff moved to exclude defense expert Dr. Kane the next day. Defendants filed a motion for sanctions on February 13, 2014.


The facts may be summarized as follows, " taking the evidence and all reasonable inferences drawn therefrom in the light most favorable to the nonmoving party." Henry v. Purnell, 652 F.3d 524, 531 (4th Cir. 2011) (en banc).

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Defendant Cochran manages twenty (20) residential rental properties in Washington, North Carolina, that are or were owned by defendants Cochran, WRC, EKP, EmLan, or Richard Cochran. Cochran primarily handles daily management of these residential properties. His duties include leasing units, collecting rent, receiving tenants' maintenance requests, performing or arranging for maintenance, and initiating and prosecuting eviction proceedings against tenants. Cochran does so acting as the agent of defendants WRC, EKP, EmLan, and Richard Cochran.

A number of defendants' current and former tenants who are black have experienced problems with appliances, utilities, and structures, in their rental units. These tenants have at various times reported these problems to Cochran and requested repairs or replacements necessary to make their rental units habitable. In some instances, described in more detail below and in the court's discussion herein, Cochran refused to or failed to provide necessary repairs or replacements. Some of these tenants have withheld or refused to pay rent demanded due to Cochran's failure to provide necessary repairs or replacements. Cochran initiated eviction proceedings against some of these tenants who had been withholding or refusing to pay rent due to lack of sufficient repairs or replacements. With respect to several of these tenants, Cochran directed racial slurs and made other racial statements, described as follows in chronological order, in connection with the provision of repairs or initiation of eviction proceedings.

1. Ronnie and Della Boyd

Ronnie and Della Boyd (sometimes " the Boyds" ) began living at 803 North Market Street, a rooming house, in approximately 2001. The Boyds asked Cochran to repair or remedy various items in their unit, including sink and tub, hot water heater, fuse box, heating system, and washer and dryer. Cochran did not do so. Ronnie Boyd made repairs to his unit but Cochran refused to give him credit. Regarding Cochran's communications with them and other tenants in the rooming house, Della Boyd testified in a deposition as followed:

I've heard him use nigger all of the time . . . . Q. So every time you saw him he would say what? A. " These niggers don't know how to keep my house. . . . And I'll get their asses out of here, and I wish I had never put them in here . . . . I want to get them out of my house. I should have never put them in there. . . . Worst mistake I ever made," stuff like that. . . . Q. Okay. And who -- who else heard -- who else heard the comments? A. Everybody that was in there [the rooming house], I can't remember everyone's name. . . . But I know they heard it; they were told it, some of them. (DE 121-62 at 18-19).[1]

Ronnie Boyd also worked for Cochran doing repair work on other rental units. He testified that Cochran remarked about what he ate for lunch around other co-workers, saying " Oh, you know [Boyd's] going to get the -- black people really love fried chicken, now, watch him." (DE 121-63 at 30). He often addressed Boyd by calling him names, including " nigger," (id. at 39), and he would say " you need to get your black hind part on" in directing him to work faster. (Id. at 41). Boyd testified:

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Q. . . . Back to the names . . . and the words that Mr. Cochran would use, the N-word and -- and -- did you ever tell him that the use of that word made you feel uncomfortable? A. I said it plenty of times. . . . I told him straight up, I said, " I really don't like that . . . I would never talk to you like that. . . ." Q. Okay. What was his response? A. . . . " I don't give a rat's ass if you don't like it." (DE 121-63 at 92).

The Boyds moved out in approximately 2003 after Cochran posted eviction notices on the door of their unit.

2. Cynthia and Lora Grimes

Cynthia Grimes and her mother, Lora Grimes (sometimes " the Grimeses" ), rented units at 624 and 626 North Market Street, starting in approximately 2002. The Grimeses asked Cochran to repair or remedy various items in their units, including leaking sink, faulty refrigerator, insufficient heaters, roaches, and rats. Cochran did not do so sufficiently or timely. Regarding Cochran's communications with them, Cynthia Grimes testified:

We had one altercation that we had got into . . . for him [Cochran] fussing with my mother about stating that she owed him some money. . . . And he just kept going on and on and on, . . . so it kind of frustrated me. [S]o we -- me and him got into it. . . . I don't know exactly word for word that we had but it wasn't a nice argument. We called each other names and -- Q. What did he call you? A. Well, whatever he felt was suitable at the time, such as my race, my color, had called me the N. . . ." (DE 121-60 at 18-19).

Lora Grimes testified:

Q. . . . Well, what are some of the things that he's called you? A. He's called me a black B, he's called me a B, he's called me a stupid B. Q. And when you say B do you mean bitch? A. Yes. . . . Okay. And . . . in what sense did he use these words . . .[?] A. Because he said, " Y'all always need something done and something's always got to be fixed, things have always got to be done, and always complaining about something." (DE 121-61 at 36-37).

The Grimeses moved out in approximately 2007.

3. Josette Cruz

Josette Cruz (" Cruz" ) rented a unit owned by defendants at 621 North Market Street, commencing in approximately April 2007. Cruz asked Cochran to repair an electrical panel in her unit that was discharging current outside of the fuses. Cochran " kept . . . blowing [her] off" about the repair. (DE 121-39 at 53). Around that same time, Cochran had several contacts with Cruz. Cruz testified as follows:

A. . . . He's come to my home and said after I move out another -- another ignorant nigger is going to move in. . . . He pretty much said, you know, I'm on the bottom of the totem pole because, you know, I'm black and I'm a woman, and he said so many different times that, you know, . . . nigger to me, and I can't recollect every time he said it. But there were specific times when he said it where I got real offensive. (DE 121-39 at 39).

Cruz also testified as follows:

Q. . . . [H]ow many times did he come to your house with the purpose of intimidating you? A. It was quite a bit of -- pretty much on a day to day basis. Q. Okay. Over what period of time? A. The time from which we moved back in and I made a complaint about the heat and about the sparking. Before that he would come by just, you know, say give me my money and he would make a

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slanderous remark to me[.] (DE ...

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