Backus v. I.Q. Data Int'l, Inc., Case No. 20-CV-0215-CVE-JFJ

CourtUnited States District Courts. 10th Circuit. Northern District of Oklahoma
Decision Date04 March 2021
Docket NumberCase No. 20-CV-0215-CVE-JFJ


Case No. 20-CV-0215-CVE-JFJ


March 4, 2021


Now before the Court are Defendants Tulsa Greenbriar I, LLC and Gaines Investment Trust's Motion to Dismiss and Brief in Support (Dkt. # 13) and I.Q. Data International, Inc.'s Motion to Dismiss and Brief in Support (Dkt. # 24). Defendants argue that plaintiff has failed to state a claim against them under the Fair Housing Act, 42 U.S.C. § 3601 et seq. (FHA) and the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1691 et seq. (RICO). Defendants request the dismissal of plaintiff's state law negligence claim, because the alleged failure to comply with or be familiar with federal anti-discrimination laws is not a recognized tort duty under Oklahoma law. Finally, defendant I.Q. Data International, Inc. (I.Q. Data) argues that plaintiff's claim under the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. (FDCPA) is time-barred.


Joseph Backus is a 74 year old male who uses a cane for support when walking, and beginning in 2015 he leased an apartment at Greenbriar Apartments in Tulsa, Oklahoma. Dkt. # 2, at 3. He alleges that Tulsa Greenbriar I, LLC (Greenbriar) owns the apartment complex and Gaines

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Investment Trust (Gaines) is listed as an "agent" on the lease agreement. Id. at 3. The most recent lease agreement was for a six month term from November 20, 2017 to May 20, 2018. Dkt. # 2-1. Upon expiration of the lease term, the lease agreement states that it would remain in effect on a month to month basis until either party to the lease provided written notice of termination. Id. at 1. An addendum to the lease contains additional provisions concerning the procedure for terminating the lease:

a) Management must receive written notice of Residents [sic] intent to move out at least 60 days prior to the move-out date. The advance notice must be at least 60 days in advance even if the Lease has become a month-to-month lease. If a move-out notice is received on the first, the notice shall be deemed sufficient for move-out on the last day of the month of intended move-out, provided that all other requirements below are met:

b) Move-out notice must be in writing. Oral move-out notice will not be accepted and will not terminate this Lease.

c) Your move-out notice must not terminate the Lease sooner than the end of the Lease term or renewal period.

Id. at 14.

Backus states that he fell several times while walking from his apartment to the mailbox, and he claims that on April 24, 2018 he "asked the manager of the Greenbriar Apartments for a reasonable accommodation of his disabilities to allow him to move and relocate to an apartment that was closer in proximity to the mailbox at the Greenbriar Apartments." Dkt. # 2, at 4. Backus does not allege that he made any prior requests for an accommodation, and it is unclear from the allegations of the complaint whether he actually requested an accommodation on April 24, 2018 that was separate from submitting a notice of vacancy. Backus claims that the property manager was aware of his request for an accommodation, because he submitted a notice to vacate on April 24,

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2018 stating that his reason for moving was "location for walking shorter distance."1 Dkt. # 2-2. Backus claims that the property manager denied his request for an accommodation, and he believed he had no alternative but to move out of his apartment and relocate to another apartment in order to avoid injuring himself. Id. at 5-6. However, it is not clear from the complaint whether Backus made a request for an accommodation in addition to submitting a notice to vacate his apartment.

Backus moved out of his apartment on May 18, 2018 and he was charged $175 for carpet repair and cleaning fees as a result of an inspection. Dkt. # 2-4. Greenbriar Apartments also charged Backus additional amounts for unpaid utilities and for rent from the time period of May 19 to June 20, 2018. Dkt. # 2-3, at 1. Backus received a credit for his security deposit and for a prior rent payment, but Greenbriar Apartments sent Backus a bill for $711.08. On June 15, 2018, Backus received a letter from I.Q. Data stating that it was attempting to collect the outstanding debt, and Backus disputed that he owed the debt. Dkt. # 2, at 8. Backus received a second letter from I.Q. Data on July 6, 2018, and the amount of the debt had increased to $716.81 due to an interest charge of $5.73. Id. Backus sent a letter to I.Q. Data demanding verification of the debt, and I.Q. Data responded that it had confirmed the debt with Greenbriar Apartments in the amount of $724.64. Id. Backus alleges that I.Q. Data reported the debt to consumer reporting agencies. Id. at 9.

On May 20, 2020, Backus filed this case alleging claims under the FHA (count I), the FDCPA (count III), and RICO (count V). Backus also alleges a negligence claim under Oklahoma law (count II), and he seeks a declaratory judgment (count IV) that defendants' attempts to collect a debt from plaintiff violate state and federal law. Each of plaintiff's claims, except for his FDCPA

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claim, is alleged against all defendants, and the FDCPA claim is alleged against I.Q. Data only. Plaintiff alleges that "a joint venture and de facto partnership exist between" the defendants, and he claims that "[a]ll three Defendants are accountable, responsible and answerable for all of Plaintiff's damages and claims herein." Dkt. # 2, at 4.


In considering a motion to dismiss under Fed. R. Civ. P. 12(b)(6), a court must determine whether the claimant has stated a claim upon which relief may be granted. A motion to dismiss is properly granted when a complaint provides no "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). A complaint must contain enough "facts to state a claim to relief that is plausible on its face" and the factual allegations "must be enough to raise a right to relief above the speculative level." Id. (citations omitted). "Once a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint." Id. at 562. Although decided within an antitrust context, Twombly "expounded the pleading standard for all civil actions." Ashcroft v. Iqbal, 556 U.S. 662, 683 (2009). For the purpose of making the dismissal determination, a court must accept all the well-pleaded allegations of the complaint as true, even if doubtful in fact, and must construe the allegations in the light most favorable to a claimant. Twombly, 550 U.S. at 555; Alvarado v. KOB-TV, L.L.C., 493 F.3d 1210, 1215 (10th Cir. 2007); Moffett v. Halliburton Energy Servs., Inc., 291 F.3d 1227, 1231 (10th Cir. 2002). However, a court need not accept as true those allegations that are conclusory in nature. Erikson v. Pawnee Cnty. Bd. of Cnty. Comm'rs, 263 F.3d 1151, 1154-55 (10th Cir. 2001). "[C]onclusory allegations without supporting factual

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averments are insufficient to state a claim upon which relief can be based." Hall v. Bellmon, 935 F.2d 1106, 1109-10 (10th Cir. 1991).


Defendants have filed motions to dismiss (Dkt. # 13, 24) each of plaintiff's claims for failure to state a claim upon which relief can be granted, and they argue that many of plaintiff's claims are also time-barred under the applicable statute of limitations. Plaintiff responds that has made sufficient factual allegations in support of each of his claims, and each of his claims was filed within the applicable statute of limitations.2


Defendants ask the Court to dismiss plaintiff's claim under the FHA (count I), because the complaint fails to sufficiently allege that plaintiff actually requested an accommodation before he vacated his apartment or that he provided defendants a meaningful opportunity to consider any request for accommodation. Dkt. # 13, at 11-14. Defendants also argue that plaintiff did not file his failure to accommodate claim within the two year statute of limitations. Id. at 15-16; Dkt. # 23, at 1-6. Plaintiff responds that he has adequately alleged that he requested an accommodation for an obvious disability, and he claims that defendants retaliated against him by forcing him to sign a notice that he would not vacate his apartment for 60 days. Dkt. # 22, at 6. Plaintiff also argues that his claims are not time-barred, because defendants continued to attempt to collect a fraudulent debt after he had vacated the apartment.

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Under the FHA, it is unlawful to "discriminate in the sale or rental, or to otherwise make unavailable or deny, a dwelling to any buyer or renter because of a handicap of . . . that buyer or renter." 42 U.S.C. § 3604(f)(1). The FHA also prohibits discrimination "in the terms, conditions, or privileges of sale or rental of a dwelling" because of a person's handicap. 42 U.S.C. § 3604(f)(2). Discrimination is defined as "a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling . . . ." 42 U.S.C. § 3604(f)(3)(B). A failure to accommodate claim under the FHA has five elements: "(1) that the plaintiff . . . is handicapped as defined by the FHA; (2) that the defendant knew or reasonably should have known of the claimed handicap; (3) that accommodation of the handicap may be necessary to afford the handicapped person an equal opportunity to use and enjoy the dwelling; (4) that the accommodation is reasonable; and (5) that defendants refused to make such accommodation." Arnal v. Aspen View Condominium Assoc., Inc., 226 F. Supp. 3d 1177, 1183 (D. Colo. 2016). The FHA "requires accommodations that are necessary (or indispensable or...

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