routhier v. benoit

VERMONT SUPERIOR COURT CIVIL DIVISION
Washington Unit Case No. 23-CV-00206
65 State Street
Montpelier VT 05602
802-828-2091
www.vermontjudiciary.org

Seras Routhier et al v. Lynda Benoit et al

Ruling on Landon Denise Benoit’s Motions to Dismiss

Plaintiffs Sera Routhier and Jameson Landrum leased an apartment in a 4-unit

building owned by Defendant Lynda Benoit. They describe themselves as white (Ms.

Routhier) and black (Mr. Landrum). They allege that Ms. Benoit failed to remedy

serious habitability problems with the premises and that she and members of her family

later staged a campaign of harassment on the basis of race and color that continued at

least until this case was filed, including terminating their lease and forcing them into

homelessness. The other family members alleged to have participated in the campaign

include Defendant Lanny Benoit (Lynda’s husband), Defendant Landon Benoit (Lynda’s

son), and Defendant Denise Benoit (Lynda’s daughter-in-law).1

Against all the Defendants, Plaintiffs assert numerous violations of Vermont’s

Fair Housing and Public Accommodations Act (VHPA), 9 V.S.A. §§ 4500–4507; the

analogous federal Fair Housing Act (FHA), 42 U.S.C. §§ 3601–3631 (together, Counts 1–

8); and intentional infliction of emotional distress (IIED, Count 13). Counts 9–11 are

asserted against Lynda only; Count 12 is asserted against Lynda and Lanny only.

Defendants Landon and Denise (son and daughter-in-law) have filed separate Rule

1 Because Defendants all have the same surname, the Court refers to them by their first

names for the sake of clarity.
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12(b)(6) motions to dismiss all claims, including those not asserted against them. They

argue that the VHPA/FHA claims should be dismissed because they are not alleged to be

the owners of the leased premises or involved in leasing decisions in any manner, there

are no alleged discriminatory statements for purposes of Counts 3 and 4, and that the

allegations are generally insufficient to state a claim for IIED. They purport to seek

dismissal of the claims not asserted against them because those claims are not asserted

against them. Plaintiffs oppose the motion, at least, as it regards the claims asserted

against Landon and Denise. The Court determines as follows.

I. Procedural Standard

The Vermont Supreme Court has described the familiar standard for Rule 12(b)(6)

motions to dismiss for failure to state a claim as follows:

“A motion to dismiss . . . is not favored and rarely granted.” This is
especially true “when the asserted theory of liability is novel or extreme,” as
such cases “should be explored in the light of facts as developed by the
evidence, and, generally, not dismissed before trial because of the mere
novelty of the allegations.” In reviewing a motion to dismiss, we consider
whether, taking all of the nonmoving party’s factual allegations as true, “‘it
appears beyond doubt’ that there exist no facts or circumstances that would
entitle the plaintiff to relief.” We treat all reasonable inferences from the
complaint as true, and we assume that the movant’s contravening
assertions are false.

Alger v. Dep’t of Labor & Indus., 2006 VT 115, ¶ 12, 181 Vt. 309, 316–17 (citations

omitted).

II. Background

The amended complaint is not a model of clarity. It consists of 87 paragraphs of

factual allegations that mark moments in time along a narrative beginning in 2018,

when Plaintiffs leased the apartment, to 2023, when the complaint in this case was filed.

Eight counts of state and federal housing discrimination follow, but they are asserted in
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a completely conclusory manner, to some extent leaving the reader to guess at their

nature and which of the foregoing 87 paragraphs of allegations may have been intended

to support each. The IIED claim is similarly conclusory.

Briefly, the basic narrative alleged is as follows. Plaintiffs leased the apartment

from Lynda in 2018. They complained about serious habitability problems, and she took

no corrective action. They complained to city officials, who documented myriad code

violations, and still she took no corrective action.

Landon and Denise moved into one of the apartments in the same building in

2020. Landon and Lanny arrived one day and saw a Black Lives Matter lawn sign that

Ms. Routhier had just placed in front of Plaintiffs’ apartment. Lanny became enraged,

started screaming at Ms. Routhier, and attempted to remove or destroy the sign. During

the encounter, he made statements in opposition to his apparent understanding of the

message the lawn sign was intended to convey, including protests of: “All Lives Matter,”

“White Lives Matter,” “My life matters too,” and “This is liberal garbage.” Ms. Routhier

engaged in a physical struggle with Lanny and was able to wrest the sign from him, but

it was damaged. Up to this point, Lynda is alleged to have entirely ignored habitability

violations, but no active harassment is asserted. After this encounter, however,

everything went downhill.

Ms. Routhier told Lynda that she planned to “press charges” over the incident.

Lynda responded by demanding that Plaintiffs vacate the apartment. She later delivered

formal notice to terminate the tenancy for no cause. Ms. Routhier installed a security

camera. Landon and Denise started loitering in front of it and staring into it. Landon

threw dog feces on Plaintiffs’ front porch and would take his dog to urinate there.

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Landon and Denise’s vehicles (presumably driven by them) did “burnouts” in the

driveway in front of Plaintiffs’ apartment, apparently to intimidate them.

Eventually, Plaintiffs moved out of the apartment. But their efforts at renting a

new apartment were foiled for a protracted time because Lynda would disparage them to

prospective landlords. They ended up in a homeless shelter. Landon and Denise would

drive by the homeless shelter directing intimidating looks towards them. Denise once

encountered Ms. Routhier, both in cars, at Spaulding High School. Denise honked her

horn and accelerated towards Ms. Routhier. Whenever Lanny, Landon, or Denise saw

either of Plaintiffs, they would shout obscenities and, if driving, would swerve at

Plaintiffs threateningly.

There is a general allegation that Landon and Denise would act as Lynda’s agent

for landlord business when Lynda could not be there. The Court perceives no allegation

that anything Landon or Denise is alleged to have done in furtherance of the campaign of

harassment was undertaken while they were acting in that agency capacity.

III. Analysis

Landon’s and Denise’s motions to dismiss are as conclusory as Plaintiffs’

descriptions of their legal claims in the amended complaint. As to the housing

discrimination claims, they summarily assert that because they did not own the rental

property or make any leasing decisions, they cannot be liable. They do not attempt to

describe, however, what specifically the legal claims are, what their elements may be,

and why not being the owner or decisionmaker as to leasing decisions means that they

cannot be liable. They argue that they are not alleged to have made any statements

indicating any discriminatory intent for purposes of Counts 3 and 4. As for the IIED

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claims, they simply argue that nothing in the complaint can possibly rise to the level

necessary to support such claims.

A. Counts 1 and 2

In Counts 1 and 2, Plaintiffs assert violations of 9 V.S.A. § 4503(a)(1) and 42

U.S.C. § 3604(a). Section 4503(a)(1) provides:

(a) It shall be unlawful for any person:

(1) To refuse to sell or rent, or refuse to negotiate for the sale or rental of, or
otherwise make unavailable or deny, a dwelling or other real estate to any
person because of the race, sex, sexual orientation, gender identity, age,
marital status, religious creed, color, national origin, or disability of a
person, or because a person intends to occupy a dwelling with one or more
minor children, or because a person is a recipient of public assistance, or
because a person is a victim of abuse, sexual assault, or stalking.

By its terms, this provision can apply to “any person.” While much of it might only

reasonably apply to one in a position to, for example, lease out the apartment, the “or

otherwise make unavailable or deny” provision is at least arguably broader. See Vermont

Human Rights Commission v. Polak, No. 21-CV-2095, 2022 WL 1242683 (Vt. Super. Ct.

Feb. 2, 2022) (explaining that 9 V.S.A. § 4503(a)(1) at least arguably could extend to

circumstances in which a neighbor’s conduct has a discriminatory effect on one’s

housing). Other interpretations are also possible.

The Court need not rule at this time that the allegations asserted against Landon

and Denise satisfy § 4503(a)(1) despite not being owners or involved in leasing decisions.

It is enough to observe that this provision might be determined to apply in these

circumstances. See Ass’n of Haystack Prop. Owners, Inc. v. Sprague, 145 Vt. 443, 447

(1985) (“Moreover, courts should be especially reluctant to dismiss on the basis of

pleadings when the asserted theory of liability is novel or extreme.”). Further,

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consideration of the need for interpretation of and how to interpret this provision are

better made on a more complete factual record. The motions to dismiss are denied as to

Count 1 (the state claim) and, because the parties do not distinguish between the state

and federal claims for dismissal purposes, Count 2 (the federal claim) as well.

B. Counts 3 and 4

In Counts 3 and 4, Plaintiffs assert violations of 9 V.S.A. § 4503(a)(3) and 42

U.S.C. § 3604(c). Section 4503(a)(3) provides:

(a) It shall be unlawful for any person:

. . .

(3) To make, print, or publish, or cause to be made, printed, or published any notice,
statement, or advertisement, with respect to the sale or rental of a dwelling or other real
estate that indicates any preference, limitation, or discrimination based on race, sex,
sexual orientation, gender identity, age, marital status, religious creed, color, national
origin, or disability of a person, or because a person intends to occupy a dwelling with
one or more minor children, or because a person is a recipient of public assistance, or
because a person is a victim of abuse, sexual assault, or stalking.

Defendants’ argument that this provision applies only to the owner of the leased

premises or one directly involved in leasing decision is not accurate. By its terms, it

could apply to “any person,” not just landlords.

They also argue, however, that the Plaintiffs have alleged no discriminatory

statements “with respect to the sale or rental” of housing in violation of this provision. In

briefing, Plaintiffs have also pointed to no such alleged statement. Instead, they argue

that the mere fact that Landon and Denise are alleged to have harassed Plaintiffs in a

discriminatory manner is sufficient for purposes of 9 V.S.A. § 4503(a)(3). In other words,

they suggest that any act of discrimination operates as a statement indicating an intent

to discriminate in violation of this provision.

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Plaintiffs’ argument is substantially overbroad. Case law under the analogous

federal provision, 42 U.S.C. § 3604(c), makes unassailably clear that the “notice,

statement, or advertisement” that must be made, printed, or published is some sort of

actual notice, statement, or advertisement—the plain meaning prevails. See, e.g., Soules

v. U.S. Dep’t of Hous. & Urb. Dev., 967 F.2d 817, 824 (2d Cir. 1992) (test is whether

“ordinary reader [or listener]” would interpret “ad or statement” as indicating

discriminatory preference); United States v. Hunter, 459 F.2d 205, 210 (4th Cir. 1972)

(applying plain meaning of statute to publication by newspaper); Hous. Rts. Ctr. v.

Donald Sterling Corp., 274 F. Supp. 2d 1129, 1137 (C.D. Cal.), aff’d sub nom. Hous. Rts.

Ctr. v. Sterling, 84 F. App’x 801 (9th Cir. 2003) (“The governing regulations interpret this

provision to cover ‘all written or oral notices or statements by a person engaged in the

sale or rental of a dwelling.’”). Neither party argues that the Vermont provision, which is

virtually identical, should be interpreted any differently.

The amended complaint includes no allegation that either Landon or Denise made

any statement indicating a discriminatory preference regarding housing. Accordingly,

Counts 3 (the state claim) and 4 (the federal claim) are dismissed.

C. Counts 5 and 6

In Counts 5 and 6, Plaintiffs assert violations of 9 V.S.A. § 4506(e) and 42 U.S.C. §

3617. The Vermont provision is as follows:

(e) A person shall not coerce, threaten, interfere, or otherwise discriminate
against any individual who:

(1) has opposed any act or practice that is prohibited under section 4502
or 4503 of this title;
(2) has lodged a complaint or has testified, assisted, or participated in
any manner with the Human Rights Commission in an investigation of
acts or practices prohibited by this chapter;
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(3) is known by the person to be about to lodge a complaint, testify,
assist, or participate in any manner in an investigation of acts or
practices prohibited by this chapter;
(4) is exercising or enjoying a right granted or protected by this chapter;
or
(5) is believed by the person to have acted as described in subdivisions
(1) through (4) of this subsection.

9 V.S.A. § 4506(e). The corresponding federal provision is more succinct:

It shall be unlawful to coerce, intimidate, threaten, or interfere with any
person in the exercise or enjoyment of, or on account of his having exercised
or enjoyed, or on account of his having aided or encouraged any other person
in the exercise or enjoyment of, any right granted or protected by section
3603, 3604, 3605, or 3606 of this title.

42 U.S.C. § 3617.

Neither provision applies exclusively to the owners of rental property or those

directly involved in leasing decisions. See, e.g., Antonio v. Sec. Servs. of Am., LLC, 701 F.

Supp. 2d 749, 783 (D. Md. 2010), on reconsideration in part, No. CIV.A. AW-05-2982,

2010 WL 2858252 (D. Md. July 19, 2010), and aff'd in part sub nom. Antonio v. SSA Sec.,

Inc., 782 F.3d 173 (4th Cir. 2015) (“[N]on-landlords are liable under the FHA [including §

3617] and such entities that ‘make housing unavailable,’ through such activities as

intimidation, have been found to violate the FHA.”); Human Rights Commission v. Polak,

No. 21-CV-2095, 2022 WL 1242683 (Vt. Super. Ct. Feb. 2, 2022) (neighbor’s alleged

conduct falls within 9 V.S.A. § 4506(e)(4).

Accordingly, the motions to dismiss are denied as to Counts 5 (the state claim) and

6 (the federal claim).

D. Counts 7 and 8

In Counts 7 and 8, Plaintiffs assert violations of 9 V.S.A. § 4503(a)(2) and 42

U.S.C. § 3604(b). The Vermont provision is as follows:

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(a) It shall be unlawful for any person:

. . .

(2) To discriminate against, or to harass, any person in the terms,
conditions, privileges, and protections of the sale or rental of a dwelling or
other real estate, or in the provision of services or facilities in connection
with a dwelling or other real estate, because of the race, sex, sexual
orientation, gender identity, age, marital status, religious creed, color,
national origin, or disability of a person, or because a person intends to
occupy a dwelling with one or more minor children, or because a person is a
recipient of public assistance, or because a person is a victim of abuse,
sexual assault, or stalking.

Similar to Counts 1 and 2, by its terms, this provision can apply to “any person.”

While much of the law might only reasonably apply to a person in a position to, for

example, lease out the apartment, the references to harassment and the ongoing

privilege of housing indicate that it may well apply to third-party conduct. See Vermont

Human Rights Commission v. Polak, No. 21-CV-2095, 2022 WL 1242683 (Vt. Super. Ct.

Feb. 2, 2022) (explaining that 9 V.S.A. § 4503(a)(2) at least arguably could extend to

circumstances in which a neighbor’s conduct has a discriminatory effect on one’s

housing). But other interpretations are also possible.

The Court need not rule at this time that the allegations asserted against Landon

and Denise satisfy § 4503(a)(2) despite not being owners or involved in leasing decisions.

As above, it is enough to observe that this provision might be determined to apply in

these circumstances. See Ass’n of Haystack Prop. Owners, Inc. v. Sprague, 145 Vt. 443,

447 (1985) (“Moreover, courts should be especially reluctant to dismiss on the basis of

pleadings when the asserted theory of liability is novel or extreme.”). Further,

consideration of the need for interpretation of and how to interpret this provision are

better made on a more complete factual record. The motions to dismiss are denied as to

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Count 7 (the state claim) and, because the parties do not distinguish between the state

and federal claims for dismissal purposes, Count 8 (the federal claim) as well.

E. Counts 9–12

Counts 9–12 are expressly not asserted against Landon and Denise. They

nevertheless argue that these claims should be dismissed as to them precisely because

they are not asserted against them. In response, Plaintiffs confirm that these claims are

not asserted against Landon and Denise and assent to dismissal as against them but

only on condition that dismissal is without prejudice.

Landon’s and Denise’s requests and Plaintiffs’ response are nullities. If a claim is

not asserted against a party, there is nothing to dismiss as to that party; nor is there

anything to preserve by dismissing without prejudice. The Court does not rule when

there is no controversy. See Sweezey v. Neel, 2006 VT 38, ¶ 28, 179 Vt. 507, 519.

F. Count 13

Landon and Denise argue that Count 13, intentional infliction of emotional

distress (IIED), should be dismissed because nothing alleged in the complaint is

sufficiently extreme and outrageous to support such a claim. In response, Plaintiffs rely

heavily on Vermont’s tolerant dismissal standard and argue that the claim should

survive.

A successful IIED claim requires: (1) conduct that is extreme and outrageous; (2)

conduct that is intentional or reckless; and (3) conduct that causes severe emotional

distress.” Baptie v. Bruno, 2013 VT 117, ¶ 24, 195 Vt. 308, 318. To satisfy the

outrageousness element, the defendant’s behavior must “surpass the bounds of decency

that can be tolerated in a civilized society.” Fromson v. State, 2004 VT 29, ¶ 15, 176 Vt.

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395; see also Restatement (Second) of Torts § 46, cmt. d (1965). The test is objective.

Conduct amounting only to “insult, indignities, and annoyances” do not rise to the level

of extreme and outrageous conduct. Denton v. Chittenden Bank, 163 Vt. 62, 66–67

(1994).

As to this claim, Landon’s and Denise’s motions strike too soon. The thrust

of the complaint is that they engaged in a campaign of harassment, in concert with

Landon’s parents, against Plaintiffs on the basis of race, which lasted years and followed

them when they relocated. The conduct included having pets urinate and defecate on

Plaintiffs’ porch, made car burnouts in front of their home to intimidate Plaintiffs, made

obscene gestures towards Plaintiffs, and swerved moving cars towards them. Although

the complaint leaves any other details unstated, Plaintiffs should have the opportunity to

develop these claims so they may be addressed on the merits. “The purpose of a

dismissal motion ‘is to test the law of the claim, not the facts which support it.’”

Montague v. Hundred Acre Homestead, LLC, 2019 VT 16, ¶ 10, 209 Vt. 514, 519 (The

“‘threshold a plaintiff must cross in order to meet our notice-pleading standard’ is . . . a

low one.”) (citations omitted). Given the tenor and descriptions of the events alleged thus

far, the Court cannot conclude that “it is beyond doubt that there exist no facts or

circumstances that would entitle [Plaintiffs] to relief.” Id. (citation omitted). The

allegations go well beyond mere “indignities.” Denton, 163 Vt. at 66–67.

Landon’s and Denise’s motions are denied as to Count 13.

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Conclusion

For the foregoing reasons, Landon’s and Denise’s motions to dismiss are (a) denied

as to Counts 1, 2, 5–8, 13 (b) granted as to Counts 3 and 4, and (c) moot as to Counts 9–

12.

Electronically signed on Wednesday, March 6, 2024, per V.R.E.F. 9(d).

_______________________
Timothy B. Tomasi
Superior Court Judge

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