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Case 4:15-cv-04137-KES Document 5 Filed 09/24/15 Page 1 of 6 PageID #: 16

UNITED STATES DISTRICT COURT


DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
UNITED STATES OF AMERICA,

15-CV-4137

Plaintiff,
vs.
CALVIN L. SALEM and ALICE B.
SALEM FAMILY TRUST and CALVIN
L. SALEM, Individually and as Trustee of
the CALVIN L. SALEM and ALICE B.
SALEM FAMILY TRUST,

ANSWER and DEMAND


FOR TRIAL BY JURY

Defendants.
ANSWER
Comes now the above-named defendants, by and through attorney David Alan
Palmer, who state in answer to the complaint as follows:
1.

Defendants deny each and every allegation in the complaint except those

hereinafter specifically admitted.


2.

Defendants admit paragraphs 1, 2, 3, 4, 5, 6, 7, 9, 11, 12, 25, 31, 36, 37,

39, and 40.


3.

Defendants deny paragraphs 14, 17, 27, 29, 33, 34, 42, 43, and 44.

4.

Defendants are without sufficient information to admit or deny the

allegations in paragraph 8 of the complaint and remit plaintiff to strict proof thereof.
5.

In answer to paragraph 10, defendants admit Mr. Loring was admitted to a

skilled nursing facility sometime in January 2014. However, defendants have not
reviewed Mr. Lorings medical records or the nursing facility records; are without

Case 4:15-cv-04137-KES Document 5 Filed 09/24/15 Page 2 of 6 PageID #: 17

sufficient information to admit or deny the remainder of the allegations contained therein;
and remit plaintiff to strict proof thereof.
6.

In answer to paragraph 13, defendants admit that defendant Dr. Salem

wrote a letter to the nursing facilitys staff stating that in the short period of time Mr.
Loring resided at the apartment he fell three times and had been hospitalized twice;
expressed his concern that Mr. Loring was not capable of living independently; hoped
that Mr. Loring would be eligible for federal funding to assist in payment of his living
expenses; and respectfully requested that nursing staff consider Mr. Loring for nursing
home care. Defendants deny stating that Mr. Loring should not return to the property.
7.

In answer to paragraph 15, defendants admit having telephone

conversations with Marlene Loring but deny stating that Mr. Loring could not return to
the subject property because the wheelchair would cause damage to the carpets.
8.

In answer to paragraph 16, defendants admit having conversations with

Mr. Loring; discussed damage to the carpets caused by use of a wheelchair; and
discussed removing the carpeting from the subject property. Defendants deny telling Mr.
Loring that he could continue to live at the apartment as long as he was not in a
wheelchair.
9.

In answer to paragraph 18, defendants admit to visiting with Mr. Loring

concerning his ability to return to the premises and his use of a wheelchair. Mr. Loring is
a very large man, claiming to be six foot three inches tall and weighing in excess of 400
pounds. Defendants told Mr. Loring that the carpet and pad would be removed.
Defendants deny telling Mr. Loring that he could not return to the apartment if he used a
wheelchair.

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10.

In answer to paragraph 19, defendants admit that Mr. Loring was residing

in Covington Heightss nursing home in January, February, and March of 2014; admit
that Mr. Loring continued to use the subject property during this time period for his own
personal use and for the use and benefit of his friends; admit that Mr. Loring was
contractually obligated to continue to pay rent for January, February, and March; and
admit that he did pay rent during this time frame.
11.

In answer to paragraph 20, defendants admit that Mr. Loring allowed

another person to occupy the subject property without permission while Mr. Loring was
residing at Covington Heights skilled nursing home in violation of paragraphs 13, 19, 28,
and 33 of the House Rules and Conditions of Occupancy, which operated to terminate the
lease pursuant to SDCL 43-32-18.
12.

In answer to paragraph 21, defendants admit to retaining an attorney for

the purpose of commencing an eviction proceeding against Mr. Loring; admit that the
notice to quit and vacate was dated March 18, 2014; and admit that eviction proceedings
were initiated because Mr. Loring was violating paragraphs 13, 19, 28, and 33 of the
House Rules and Conditions of Occupancy, which operated to terminate the lease
pursuant to SDCL 43-32-18.
13.

In answer to paragraph 22, defendants deny that Mr. Loring cured lease

violations, deny that defendants waived any lease violations; and are without knowledge
to admit or deny the date on which Mr. Lorings friend vacated the premises.
14.

In answer to paragraph 23, defendants admit that Mr. Loring orally gave

notice of his intent to vacate the premises. However, defendants believe that the oral
notice of his intent to vacate was given approximately 3 days before the end of the month

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and after Mr. Loring was served the Summons and Complaint for eviction on or about
March 26, 2014.
15.

In answer to paragraph 24, defendants deny serving a second notice to quit

and vacate on Mr. Loring; admit serving a summons and complaint on Mr. Loring on or
about March 26, 2014; and admit that the summons and complaint were not filed with a
court and the eviction proceeding was not completed because Mr. Loring vacated the
premises.
16.

In answer to paragraph 26, defendants do not know all the factors that

resulted in Mr. Lorings decision to vacate the premises and remit plaintiff to strict proof
thereof. Defendants admit that Mr. Loring vacated the premises on or about March 29,
2014.
17.

In answer to paragraph 28, defendants do not have a copy of the letter

dated April 10, 2014 and are without sufficient information to admit or deny the
allegations and remit plaintiff to strict proof thereof.
18.

In answer to paragraph 30, defendants admit that paragraph 4 within the

Response to Second Data Request dated February 10, 2015 stated that Mr. Loring never
provided a forwarding address. Said response may have to be amended following
discovery in lieu of defendant Dr. Salems alleged April 10, 2014 letter to Mr. Loring.
19.

Defendants are without sufficient information to admit or deny the

allegations in paragraph 32 of the complaint and remit plaintiff to strict proof thereof.
20.

In further denial of paragraph 33, defendants assert that Dr. Salems

statements are protected by the First Amendment to the Constitution of the United States

Case 4:15-cv-04137-KES Document 5 Filed 09/24/15 Page 5 of 6 PageID #: 20

of America and that a negative reference per se does not constitute a violation 42 U.S.C.
3617.
21.

Defendants are without sufficient information to admit or deny the

allegations in paragraph 35 of the complaint and remit plaintiff to strict proof thereof.
22.

In answer to paragraph 38, defendants deny that HUD attempted

conciliation without success but admit the remainder of the paragraph.


23.

In answer to paragraph 41, defendants reallege and incorporate herein

their answers to paragraphs 1 through 40 of the complaint.


24.

As affirmative defenses, defendants assert the affirmative defenses

enumerated within Rule 8(c) of the Federal Rules of Civil Procedure.


25.

Defendants further assert that the complaint fails to state a claim upon

which relief can be granted.


WHEREFORE, defendants respectfully pray for judgment as follows:
1.

That the complaint be dismissed with prejudice.

2.

That defendants be awarded reasonable attorney fees, costs, taxes, and

disbursements associated with this proceeding.


3.

For such other and further relief as may be equitable and just under the

circumstances of this controversy.


Dated and electronically filed on September 24, 2015.
DAVID ALAN PALMER, P.C.
/s/ David Alan Palmer__________________
David Alan Palmer
427 North Minnesota Avenue, Suite 103
Sioux Falls, South Dakota 57104

Case 4:15-cv-04137-KES Document 5 Filed 09/24/15 Page 6 of 6 PageID #: 21

Telephone: 605-339-0780
Facsimile: 605-357-0302
E-Mail: dpalmer@davidpalmerlaw.com
Attorney for Defendants
DEMAND FOR TRIAL BY JURY
Defendants demand trial by jury.
/s/ David Alan Palmer__________________
David Alan Palmer
CERTIFICATE OF SERVICE
The undersigned certifies that the within document was served by electronic filing
upon Assistant United States Attorney Alison J. Ramsdell on September 24, 2015.
/s/ David Alan Palmer__________________
David Alan Palmer

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