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United States v. Pelfrey

United States District Court, W.D. Oklahoma

May 14, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
ROSEMARIE PELFREY, as Trustee of the W. Ray Pelfrey Revocable Trust, dated March 1, 2002, d/b/a Pelfrey Rentals, as Trustee of the Rosemarie Pelfrey Revocable Trust, dated March 1, 2002, d/b/a Pelfrey Rentals, and as Personal Representative of the Estate of Walter Ray Pelfrey; OMEGA ENTERPRISES, LLC; and PELFREY INVESTMENT COMPANY, LLC, Defendants.

          ORDER

          JOE HEATON CHIEF U.S. DISTRICT JUDGE.

         Plaintiff United States of America filed this action alleging that defendants violated the Fair Housing Act, 42 U.S.C. §§ 3601-3619 (“FHA”). Its amended complaint alleges that Walter Ray Pelfrey (“Pelfrey”), now deceased, engaged in a pattern or practice of sexually harassing female tenants and prospective female tenants, over a period of at least sixteen years, at rental properties owned by defendants. Defendants have filed a motion to dismiss this case pursuant to Federal Rule of Civil Procedure 12(b)(6), for failure to state a claim.

         To survive a motion to dismiss under Rule 12(b)(6), the complaint must contain “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Thus, dismissal under Rule 12(b)(6) is only appropriate “if the complaint alone is legally insufficient.” Brokers' Choice of Am., Inc. v. NBC Universal, Inc., 861 F.3d 1081, 1104-05 (10th Cir. 2017) (citation omitted). “[T]he Twombly/Iqbal standard ‘is a middle ground between heightened fact pleading, which is expressly rejected, and allowing complaints that are no more than labels and conclusions or a formulaic recitation of the elements of a cause of action, which the Court stated will not do.'” Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012) (quoting Robbins v. Okla., 519 F.3d 1242, 1247 (10th Cir. 2008)).

         Analysis

         Defendants' motion is a combination of arguments which are largely premature or otherwise inappropriate for resolution at the motion to dismiss stage. None of them translate into a basis for dismissal now.

         A. Statute of Limitations

         Defendants assert plaintiff's claims are barred by the statute of limitations.[1]Because this case is brought by the United States and is in the nature of a tort claim, it appears this case must be “filed within three years after the right of action first accrues”. 28 U.S.C. § 2415(b). This time period excludes any periods during which “facts material to the right of action are not known and reasonably could not be known by an official of the United States charged with the responsibility to act in the circumstances.” 28 U.S.C. § 2416(c).

         Defendants assert plaintiff's allegations in its Amended Complaint are too vague to avoid the bar of the statute of limitations. But the plaintiff has no duty at this stage to plead its way out of the potential application of the limitations statute. The statute of limitations is an affirmative defense and, unless the complaint shows on its face that the statute bars a particular claim, it is the defendant's burden to plead and establish it. See Youren v. Tintic Sch. Dist., 343 F.3d 1296, 1304 (10th Cir. 2003); see also Aldrich v. McCulloch Props., Inc., 627 F.2d 1036, 1041 n.4 (10th Cir. 1980) (internal citations omitted).

         Here, the Amended Complaint alleges conduct occurring in 2017, within the three year statute, and hence does not show on its face that the statute bars plaintiff's claims. There is therefore no basis for dismissing now based on the statute. The statute of limitations may well limit the relief to which plaintiff is otherwise entitled, but that cannot be determined at this point.

         B. Consent Decree

         Defendants contend that a consent decree was entered into by defendants and certain victims in a prior case[2] and that plaintiff cannot seek relief on behalf of those victims. However, there is no indication in the complaint or otherwise that plaintiff is seeking relief based only on persons who were parties to the prior suit. To the extent that a particular victim released claims against defendants in the prior litigation, that will no doubt bar the recovery of any further relief for that victim here. But the complaint is not limited to those persons and therefore the consent decree is not a basis for dismissing the case now.[3]

         C. Pattern or Practice/General Public Importance

         Defendants contend the complaint does not allege a basis for either “pattern and practice” or “general public importance” as a ...


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