United States District Court, W.D. Oklahoma
HEATON CHIEF U.S. DISTRICT JUDGE.
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
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
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.
Statute of Limitations
assert plaintiff's claims are barred by the statute of
limitations.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).
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).
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.
contend that a consent decree was entered into by defendants
and certain victims in a prior case 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.
Pattern or Practice/General Public Importance
contend the complaint does not allege a basis for either
“pattern and practice” or “general public
importance” as a ...