DWIGHT C. H. KAUTZMANN, Magistrate Judge.
The defendant has filed a motion for partial summary judgment in this matter, requesting that the court dismiss the allegations of paragraphs 18 through 21, paragraphs 27 through 30, and paragraphs 93 through 97 of the complaint herein for failing to state a cause of action upon which relief can be granted. Plaintiffs have strenuously objected to the defendant's motion.
In accordance with the consent of the parties, pursuant to 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73, this dispositive motion is before the undersigned Magistrate for determination.
BACKGROUND
Plaintiffs have brought suit against the defendant, claiming that defendant discriminates against women, families with children, Native Americans, unmarried couples, persons receiving public assistance, and young people in the selection of tenants, provisions of leases, and rental of housing in the City of Bismarck, North Dakota. Plaintiffs allege that defendant has violated the provisions of the Fair Housing Act [ 42 U.S.C. § 3601, et seq.], that he has violated the provisions of the North Dakota Century Code on Human Rights, Discriminatory Housing Practices by Owner or Agent, [N.D.Cent. Code § 14-02.4-12], that the defendant has committed consumer fraud in violation of N.D.Cent. Code § 51-15 and that defendant was negligent in failing to fulfill his duty to operate his rental properties in a manner that is free from unlawful discrimination, and to hire, train, supervise and discipline employees and agents to fulfill that duty.
Defendant seeks summary judgment pursuant to Rule 56 Fed.R.Civ.P. on the claims of consumer fraud, negligence and violations of N.D.Cent. Code § 14-02.4-12.
CERTIFICATION OF QUESTIONS TO THE NORTH DAKOTA SUPREME COURT
In their brief in response to defendant's motion, the plaintiffs state that defendant's motion presents two issues of first impression under North Dakota law. One, whether N.D.Cent. Code § 14-02.4-12's prohibition on housing discrimination on the basis of "status with regard to marriage" protects unmarried cohabitating persons from such discrimination, and two, whether N.D.Cent. Code § 51-15-09, which provides for a private right of action against deceptive business practices, allows a right of action by a claimant who is injured by the deceptive practice but who has not lost money or property to the person engaging in the deceptive practice. Plaintiffs indicate that if this court determines to certify these questions to the North Dakota Supreme Court pursuant to North Dakota Rules of Appellate Procedure Rule 47, they would not oppose such a decision.
Whether a federal court should certify a question to a state court is a matter of discretion. See Lehman Bros. v. Schein, 416 U.S. 386, 391, 94 S.Ct. 1741, 1744, 40 L.Ed.2d 215 (1974); Perkins v. Clark Equip. Co., 823 F.2d 207, 209 (8th Cir. 1987). Unless there is a "close" question of state law or the lack of state sources, a federal court should determine all the issues before it. Perkins, 823 F.2d at 209.
This court cannot find that the questions presented are either "close" or that there is a lack of state sources from which a determination can be made. Accordingly, the court declines to certify the questions to the North Dakota Supreme Court.
STANDARD OF REVIEW
A motion to dismiss is the proper vehicle to test the legal sufficiency of a complaint, and does not address the claims on their merits. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974). As noted by the plaintiffs in their response to defendant's motion for partial summary judgment, the motion challenges the legal sufficiency of the allegations contained in the complaint and does not refer to or rely on any matters outside the pleadings. The Eighth Circuit Court of Appeals has opined that "[A] summary judgment motion filed solely on the basis of the pleadings is the functional equivalent of a dismissal motion." North Arkansas Medical Center v. Barrett, 962 F.2d 780, 784 (8th Cir. 1992). Accordingly, the court will view defendant's motion as a motion to dismiss.
Defendant's motion requests partial dismissal of the complaint for failing to state a cause of action upon which relief can be granted. Technically, a Rule 12(b)(6) motion cannot be filed after an answer has been submitted. See Fed.R.Civ.P. 12(b). But since Rule 12(h)(2) provides that "[a] defense of failure to state a claim upon which relief can be granted" may be advanced in a motion for judgment on the pleadings under Rule 12(c), the defendant's motion will be treated as if it had been styled a 12(c) motion. See St.Paul Ramsey County Med. Ctr. v. Pennington County, 857 F.2d 1185, 1187 (8th Cir. 1988). The distinction is purely formal, since Rule 12(c) motions are reviewed under the standard that governs Rule 12(b)(6) motions. Id.
When analyzing a motion to dismiss, the court looks to the complaint as pleaded. The complaint must be liberally construed and viewed in the light most favorable to the plaintiff. The court will dismiss a complaint only when it appears that the plaintiff cannot prove any set of facts that support the claim. See Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957).
PLAINTIFFS' CLAIMS
1. Consumer Fraud.
The complaint alleges that:
Defendant knowingly acted, used, or employed deceptive acts or practices, fraud, false pretenses, false promises or misrepresentation, with the intent that each plaintiff rely thereon, in connection with the sale or advertisement of defendant's rental services and real estate for rent. In doing so, defendant committed an unlawful practice under the consumer fraud statutes of the State of North Dakota, N.D. Cent. Code section 51-15.
Defendant argues that while N.D.Cent. Code § 51-15-09 authorizes a claim for relief by any person "against any person who acquired any monies or properties" by means declared to be unlawful by the consumer fraud statutes, the plaintiffs in this case have not alleged that defendant acquired any money or property from them and, therefore, they have failed to state a claim upon which relief can be granted.
N.D.Cent. Code § 51-15-09 provides:
The provisions of this chapter do not bar any claim for relief by any person against any person who has acquired any moneys or property by means of any practice declared to be unlawful in this chapter. If the court finds the defendant knowingly committed the conduct, the court may order that the person commencing the action recover up to three times the actual damages proven and the court must order that the person commencing the action recover costs, disbursements, and actual reasonable attorney's fees incurred in the action.
Plaintiffs counter that to prevail on their claim of consumer fraud, they must only show that the defendant acquired money or property from any person as a result of his alleged unlawful practice. As an example, plaintiffs state that defendant refused to rent apartments to Native Americans on the basis of their national origin, but then presumably rented to non-Native American persons. Since he would most likely have accepted rent money from those persons, the plaintiffs postulate that the conditions of the statute are satisfied. Plaintiffs argue that if the legislature had intended to require that a claimant show a loss of his or her own property or money, the legislature would have clearly stated so in the statute.
The court must interpret the statute in light of the purposes the Legislature sought to serve, see Chapman v. Houston Welfare Rights Organization, 441 U.S. 600, 608, 99 S.Ct. 1905, 1911, 60 L.Ed.2d 508 (1979), and legislative history plays an important part in discerning these purposes. Notable among the minutes and testimony from both the Senate and House committee hearings on North Dakota's consumer fraud legislation are comments such as the following:
"Are there any provisions in here to protect the businessman so he at some point can say OK I'll give you
your money back without having to pay triple?"
Proposed Amendment of Consumer Fraud Statute: Hearing Before House Comm. on the Judiciary, HB 1255, 52d Leg. (N.D. 1991) (statement of Rep. Skar). (Emphasis added.)
"What you triple is your proven damages. You are entitled to the benefit of
your bargain."
Id. (statement of Dave Huey, Assist. Atty Gen.). (Emphasis added.)
". . . The possibility of treble damages should also encourage unethical businessmen to refund consumers
their money before legal action is commenced. . . ."
Proposed Amendment of Consumer Fraud Statute: Hearings Before House and Senate Comm. on the Judiciary, HB 1255, 52d Leg. (N.D. 1991) (testimony of Tom F. Engelhardt, Dir. Consumer Fraud Section, Office of Atty Gen.). (Emphasis added.)
Accordingly, using the legislative history as a guide to the interpretation of the N.D.Cent. Code § 51-15-09, this court must conclude that plaintiffs' theory that they must only show that the defendant acquired money or property from any person as a result of an alleged unlawful practice is in contravention of the intent behind the statute. Since it appears that the plaintiffs can prove no set of facts from their complaint that support this claim, the court must find that they have failed to state a claim upon which relief can be granted with regard to paragraph 93 of their complaint and the same shall be dismissed.
2. North Dakota's Human Rights Statute.
The paragraphs of plaintiffs' complaint alleging violations of the North Dakota Human Rights Statute which defendant seeks to dismiss concern allegations that defendant discriminated against plaintiffs Dawn Decoteau and Vinier Davis, and Neakiska Forderer and Matthew Martel, in violation of N.D.Cent. Code § 14-02.4-12, by refusing to rent to them as cohabitating couples because they were unmarried. Defendant contends that based upon N.D.Cent. Code § 12.1-20-10, which provides that "[a] person is guilty of a class B misdemeanor if he or she lives openly and notoriously with a person of the opposite sex as a married couple without being married to the other person," the act of renting an apartment to the named plaintiffs would have put him in a position of assisting them in violating the law and thereby possibly exposing himself to criminal liability. Plaintiffs counter that there is no criminal liability involved, and that N.D.Cent. Code § 12.1-20-10 is not intended to punish unmarried, opposite sex cohabitation per se, but to punish such cohabitating couples that hold themselves out to the public as married for purposes that may be unlawful.
N.D.Cent. Code § 14-02.4-12 provides:
It is a discriminatory practice for an owner of rights to housing or real property or the owner's agent or a person acting under court order, deed or trust, or will to:
1. Refuse to transfer an interest in real property or housing accommodation to a person because of race, color, religion, sex, national origin, age, physical or mental disability, or status with respect to marriage or public assistance.
2. Discriminate against a person in the terms, conditions, or privileges of the transfer of an interest in real property or housing accommodation because of race, color, religion, sex, national origin, age, physical or mental disability, or status with respect to marriage or public assistance; or
3. Indicate or publicize that the transfer of an interest in real property or housing accommodation by persons is unwelcome, objectionable, not acceptable, or not solicited because of a particular race, color, religion, sex, national origin, age, physical or mental disability, or status with respect to marriage or public assistance.
On May 7, 1990, the Office of the Attorney General for the State of North Dakota issued an opinion to State Representative Judy L. DeMers on the question of whether it is an unlawful discriminatory practice under N.D.Cent. Code § 14-02.4-12 to refuse to rent housing to unmarried persons of the opposite sex who desire to live together as a married couple in light of the prohibition against such cohabitation under N.D.Cent. Code § 12.1-20-10. See 1990 N.D. Op. Atty. Gen. 43. The Attorney General determined that such a refusal was not an unlawful discriminatory practice. Id.
"The Supreme Court of North Dakota has held that an Attorney General's opinion has the force and effect of law until a contrary ruling by a court. That court has further held that opinions of an Attorney General are `entitled to respect,' and a court should follow them if `they are persuasive.'" Fargo Women's Health Organization, et al., v. Schafer, et al., 18 F.3d 526, 530 (8th Cir. 1994) (citations omitted). In this case, the opinion is highly persuasive, and is consistent with an independent analysis of the question presented. Foremost for consideration is the fact that N.D.Cent. Code § 12.1-20-10 was not repealed when N.D.Cent. Code § 14-02.4-12 was enacted in 1983; nor was it repealed in 1995 when the discriminatory housing practices statute was last amended and reenacted, despite the issuance of the Attorney General's opinion in 1990. Additionally, when recently presented with the opportunity to speak to the "public policy/morality issue" of N.D.Cent. Code § 12.1-20-10, the North Dakota Supreme Court declined to address it. See Cermak v. Cermak, 569 N.W.2d 280, 285-86 (N.D. 1997).
These statutes can be construed ". . . so that effect may be given to both provisions. . . ." See N.D.Cent. Code § 1-02-07. The conflict between the two provisions is not irreconcilable because the statutes can be harmonized to provide an interpretation that gives effect to both provisions. The phrase "status with respect to marriage" contained within N.D.Cent. Code § 14-02.4-12 is not rendered meaningless by application of the language of the unlawful cohabitation statute to exclude unmarried, opposite sex cohabitators. The statute will still regulate against several discriminatory housing practices based on status with respect to marriage.
Accordingly, the court must find that the allegations of the plaintiffs in paragraphs 18 through 21 and 27 through 30 have failed to state a claim upon which relief can be granted with regard to plaintiffs' claims of discrimination based on status with respect to marriage contained in paragraphs 91(A), (B) (C) of their complaint and said claims shall be dismissed to the extent they allege such discrimination.
3. Negligence.
Plaintiffs' fourth cause of action states a common law claim for negligence. However, there is no duty at common law to operate a rental premises in a manner that is free from unlawful discrimination, or to obtain or provide training to fulfill that duty. "It is the general rule that if a statute creates liability (or right) and gives a special remedy for the enforcement of that liability or right, that remedy is the exclusive one." Fleming v. Miller, 47 F. Supp. 1004, 1008 (D.Minn. 1942) (citations omitted). There was no established public policy prohibiting housing discrimination prior to the passage of state and federal statutes regarding the same. The remedies contained in these statutes are arguably available to the plaintiffs in this regard. See,e.g., 42 U.S.C. § 3613(c) ("the court may award to the plaintiff actual and punitive damage") and N.D.Cent. Code § 14-02.4-20 (". . . the court may enjoin the respondent from engaging in such unlawful practice and order such appropriate relief as will be appropriate. . ."). Accordingly, plaintiffs may not state a claim for negligence in this matter, and this claim shall be dismissed.
In North Dakota, there was no established public policy prohibiting housing discrimination prior to the passage of the North Dakota Human Rights Act. "The enactment of the Human Rights Act identified important public interests in eradicating discrimination and designed remedies for violation of an individual's rights to be free of discrimination." Moses v. Burleigh County, et al., 438 N.W.2d 186, 189 (N.D. 1989). On the federal level, there was no established public policy prohibiting housing discrimination prior to Title VIII of the Civil Rights Act of 1968. "[T]he Fair Housing Title of the Civil Rights Act of 1968 and the 1866 Civil Rights Act together comprehensively spell out the right of an individual to rent or purchase housing without suffering discrimination and to obtain federal enforcement of that fundamental guarantee." Williams v. The Matthews Company, et al., 499 F.2d 819, 825 (8th Cir. 1974).
CONCLUSION
Based on the foregoing discussion and analysis, it is hereby ORDERED that the defendant's motion for partial disposition of this matter ( Docket #11 ) is hereby GRANTED. It is further ORDERED that the following claims of the plaintiff are dismissed with prejudice:
1. Consumer fraud;
2. Housing discrimination based on status with respect to marriage; and
3. Negligence.
JUDGMENT SHALL BE ENTERED ACCORDINGLY.
DWIGHT C. H. KAUTZMANN United States Magistrate