Nitschke et al v. 326 Welch Partners et al

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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
CHELSIE NITSCHKE AND
CYNTHIA GEORGE,
Plaintiffs,
v.
326 WELCH PARTNERS;
AVENUE CONSTRUCTION, LLC;
BARNETT DESIGN STUDIO, LLC
Defendants.
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No. 3:25-cv-00217
MEMORANDUM OPINION
I. 	INTRODUCTION
This case alleges violations of the Fair Housing Act (“FHA”), 42 U.S.C. § 3601 et seq, at
an apartment complex in Nashville, Tennessee. The Defendants 326 Welch Partners and Avenue
Construction, LLC, have moved for judgment on the pleadings (Doc. No. 28), and admit most
allegations in the Complaint. Additionally, they admit allegations on liability for these violations.
Plaintiffs’ motion will be granted and Defendants are liable for FHA violations. 	The Court
reserves determination of damages and injunctive relief.
II. STATEMENT
Cynthia George and Chelsie Nitschke are both residents of Tennessee and have a disability.
(Doc. No. 1 at 2–3 (¶¶ 8–9)). They attempted to access the apartment complex but could not due
to their disability.
326 Welch Partners participated in the design and construction of the apartment complex,
hired various contractors to design and build it, and is its owner. (Doc. No. 1 at 3 (¶ 10); Doc. No.
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19 at 2 (¶ 10)). 	Avenue Construction served as the construction company for the apartment
complex, hired contractors to build it, and supervised its construction. (Doc. No. 1 at 3 (¶ 11); Doc.
No. 19 at 2 (¶ 11)).
Barnett Design Studio, LLC, (“BDS”) is also named as a defendant and provided “certain
architectural services with respect to” the apartment complex (Doc. No. 12 at 3 (¶ 12)). BDS denies
it owns or has ever owned any interest in the apartment complex and denies that they are its
apartments. (Id. at 5 (¶ 27)). BDS has not participated in this motion.
The apartment complex is a four-story building with approximately 129 units. (Doc. No. 1
at 6 (¶ 21); Doc. No. 19 at 3 (¶ 21)). 	It was designed and constructed for first occupancy after
March 12, 1991. (Doc. No. 1 at 7 (¶ 22); Doc. No. 19 at 3 (¶ 22)). 	Plaintiffs allege, and the
Defendants admit, that the apartment complex contains “covered multifamily dwellings” within
the meaning of 42 U.S.C. § 3604(f)(7), and that the covered multifamily dwellings at the property
are subject to the requirements of 42 U.S.C. § 3604(f)(3)(C). (Doc. No. 1 at 7 (¶¶ 21–24); Doc.
No. 19 at 3 (¶¶ 21–24); Id. at 4 (¶¶ 40, 42)).
Defendants admit, generally, that there are certain elements of the apartment complex that
do not comply with the FHA, the Fair Housing Act Accessibility Guidelines, and other
accessibility standards (Doc. No. 19 at 2–4 (¶¶ 17, 26–27, 34–38)). Defendants, however, deny
Plaintiffs’ allegations that Defendants committed “discrimination” (Id. at 1 (¶ 4), 3 (¶¶ 29–33) and
4 (¶¶ 38, 41, 42–43)), but “acknowledge that Plaintiffs are entitled to judgment against them.
Defendants are willing to remediate the violations of the FHA and remove barriers to the extent
that removal is structurally and technically feasible or readily achievable. Defendants are willing
to pay Plaintiffs the reasonable attorneys’ fees that they have incurred, as well as any actual
damages that they have suffered.” (Id. at 5.)
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III. STANDARD OF REVIEW
The standard of review applicable to a motion for “judgment on the pleadings” pursuant to
Federal Rule of Civil Procedure 12(c) is the same as the standard of review applicable under Rule
12(b)(6). Grindstaff v. Green, 133 F.3d 416, 421 (6th Cir.1998), accord JPMorgan Chase Bank,
N.A. v. Winget, 510 F.3d 577, 581 (6th Cir. 2007). “For purposes of a motion for judgment on the
pleadings, all well-pleaded material allegations of the pleadings of the opposing party must be
taken as true, and the motion may be granted only if the moving party is nevertheless clearly
entitled to judgment.” Tucker v. Middleburg-Legacy Place, 539 F.3d 545, 549 (6th Cir. 2008)
(quoting S. Ohio Bank v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 479 F.2d 478, 480 (6th Cir.
1973)). “[T]he court ‘need not accept the plaintiff's legal conclusions or unwarranted factual
inferences as true,’ ” and the “ ‘complaint must contain direct or inferential allegations respecting
all the material elements under some viable legal theory’ ” to survive dismissal. Barany-Snyder v.
Weiner, 539 F.3d 327, 332 (6th Cir. 2008) (internal citations omitted).
It is “inappropriate” for courts “to consider evidence outside of the pleadings for the
purposes of a Rule 12(c) motion.” Ross v. PennyMac Loan Servs. LLC, 761 F. App’x 491, 494
(6th Cir. 2019). If a court considers “matters outside the pleadings” when analyzing a Rule 12(c)
motion, “the motion must be treated as one for summary judgment under Rule 56.” Fed. R. Civ.
P. 12(d). Courts may not convert Rule 12(c) motions into Rule 56 motions unless all parties are
“given a reasonable opportunity to present all the material that is pertinent to the motion.” Id.
“[W]e have never held that consideration or reliance was required under Rule 12(c) for conversion
to a motion for summary judgment. . . . [T]he plain language of Rule 12(c) does not require these
additional steps; it only requires the presentation of matters outside the pleadings and the district
court’s failure to exclude such matters.” Max Arnold & Sons, LLC v. W.L. Hailey & Co., 452
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F.3d 494, 503 (6th Cir. 2006). “The district court remains free to refuse to accept materials outside
the pleadings in order to keep the motion under Rule 12(c).” Id. (quoting 5C Charles Alan Wright
& Arthur R. Miller, Federal Practice and Procedure § 1371 (3d ed. 2004)).
IV. ANALYSIS
A. The Court excludes the Heybeck Report
The Court exercises its discretion and declines to consider the Heybeck Report. By doing
so, the Court avoids conversion of Plaintiffs’ motion into a motion for summary judgment. Max
Arnold, 452 F.3d at 503. Many other courts have done the same. See Shelby Cnty. Health Care
Corp. v. S. Council of Indus. Workers Health & Welfare Trust Fund, 203 F.3d 926, 931 (6th
Cir.2000); Tang Cap. Partners, LP. v. BRC Inc., 661 F. Supp. 3d 48, 60 (S.D.N.Y. 2023) (declining
to consider expert report attached to plaintiff’s opposition to a motion to dismiss); Pyatt v.
Raymond, 462 F. App’x 22, 24 (2d Cir. 2012), as amended (Feb. 9, 2012) (summary order) (“[t]he
district court did not err by declining to examine” documents not attached, incorporated, or
integrated into the complaint, including expert reports, attached to plaintiff's opposition to a motion
to dismiss); Jordache Enterprises, Inc. v. Affiliated FM Insurance Co., No. 21-CV-5433, 2022 WL
986109, at *6 n.8 (S.D.N.Y. March 31, 2022) (declining to consider expert reports submitted with
plaintiff's opposition to a motion to dismiss because they were not “written instruments” attached
to the complaint as exhibits, incorporated into it by reference, or integral to the complaint);
Marsilio v. Vigluicci, 924 F. Supp. 2d 837, 847 (N.D. Ohio 2013) (declining to consider a letter,
not referenced in the complaint, attached to an opposition to a motion to dismiss); McLaughlin v.
Copeland, 435 F. Supp. 513, 519 (D. Md. 1977) (declining to consider “appendix” attached to
opposition to motion under Fed. R. Civ. Pro. 12(b)(2)).
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B. The Court considers only liability
The Court grants the motion for judgment on the pleadings and finds Defendants liable for
violation of the FHA. The apartment complex contains residential apartments that are dwellings
within the meaning of 42 U.S.C. § 3602(b). The Plaintiffs have standing to sue as “aggrieved
persons as defined in 42 U.S.C. § 3602(i). At the apartment complex, all ground-floor units and
upper floor units served by elevators are “covered multifamily dwellings” within the meaning of
42 U.S.C. § 3604(f)(7)(A), were built for occupancy after March 13, 1991, and are subject to the
design and construction requirements set forth in 42 U.S.C. § 3604(f)(3)(C) of the FHA. As a result
of the admitted violations, Defendants have failed to design and construct dwellings in compliance
with the requirements mandated by 42 U.S.C. § 3604(f)(3)(C) and the applicable regulations, 24
C.F.R. Part 100.205 (2008). 	Additionally, the public- and common-use areas of the apartment
complex are also subject to the design and construction requirements of the Americans with
Disabilities Act (“ADA”), 42 USC. § 3604(f)(3)(C) and 42 U.S.C. § 12101, et seq. The Defendants
have discriminated against disabled persons by failing to maintain public and common areas in
compliance with the ADA.
The Court notes certain discrepancies between the Complaint and the Answer, including
Defendants’ 	denial 	of 	Plaintiffs’ 	claims 	regarding 	discrimination 	at 	paragraphs 	29–33.
Additionally, in their moving papers, the Plaintiffs raise concern that the Defendants have denied
liability under, they argue, the different standards of the FHA as compared to the ADA.
[B]ecause the defendant in this case has denied certain factual allegations in its
answer, the plaintiffs suggest that the Court cannot, as a matter of law, grant the
underlying motion.
But the plaintiffs misinterpret the governing standards. While it is true that the
moving party in a Rule 12(c) motion must “clearly establish[ ] that no material issue
of fact remains to be resolved,” it need not—as the plaintiffs suggest—admit or
concede all factual allegations to satisfy this burden. Iowa Beef Processors, Inc. v.
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Amalgamated Meat Cutters, 627 F.2d 853, 855 (8th Cir. 1980). Rather, in
evaluating a Rule 12(c) motion, the Court must view all facts pleaded by the
nonmoving party as true. Poehl [v. Countrywide Home Loans, Inc., 528 F.3d
1093,[] 1096 [(8th Cir. 2008).] And if the moving party has previously denied the
validity of those facts, such denials are “assumed to be false” or are otherwise
without effect, for the purposes of the motion. Rimmer v. Colt Indus. Operating
Corp., 656 F.2d 323, 326 (8th Cir. 1981). Accordingly, the defendant’s denials in a
previously filed responsive pleading are of no concern to the Court at this stage of
the proceedings.
Meyer Nat. Foods, LLC v. Liberty Mut. Fire Ins. Co., 218 F. Supp. 3d 1034, 1037 (D. Neb. 2016).
This principle applies in the present matter.
The Court reserves determination of the appropriate remedy in this case. The Parties have
agreed to proceed to mediation on February 19, 2026.
An appropriate order will enter.
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WAVERLY D. CRENSHAW, JR.
UNITED STATES DISTRICT JUDGE
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