Frazier v. Luther

• Court: District Court, N.D. Mississippi
• Decided: April 7, 2025
• Docket: 3:24-cv-00262
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF MISSISSIPPI OXFORD DIVISION LANCE FRAZIER PLAINTIFF VS. Civil No. 3:24-cv-00262-GHD-JMV JUSTIN LUTHER, individually and d/b/a LUTHER PROPERTIES, LLC; PHILLIP KENNEDY; and ANGIE KENNEDY DEFENDANTS

MEMORANDUM OPINION Presently before this Court is Defendants Justin Luther and Luther Properties, LLC’s (collectively “Defendant Luther’) Motion to Dismiss [Doc. No. 7] which Defendants Phillip and Angie Kennedy (“the Kennedys”) joined, submitting their own Motion to Dismiss [13] simultaneously. This is in response to Plaintiff Lance Frazier’s (“Plaintiff”) Complaint [1] alleging Fair Housing Act (FHA)! violations, a Mississippi trespass claim, and a Mississippi conversion claim against Defendant Luther while also alleging a breach of contract claim against the Kennedys [1]. Plaintiff has responded to the defendants’ motions to dismiss [7; 13], making the issue ripe for decision. Having duly considered arguments from both parties, the Court finds Defendant Luther’s Motion to Dismiss [7] should be granted in part and denied in part while Defendants Phillip and Angie Kennedy’s Motion to Dismiss [13] should be denied for the reasons set forth in this opinion. I Background Beginning on October 1, 2015, Plaintiff—a black man—began renting a home from the Kennedys at 205B West Reynolds Street in Pontotoc, Mississippi [1]. He continued to do so when he entered a new lease with the Kennedys on March 22, 2022, with its term ending on ' 42 U.S.C. § 3601 ef seq. ? Miss. Code Ann. § 89-8-39.

March 31, 2023 [/d.]. At some point thereafter, Plaintiff applied to the state Rental Assistance for Mississippians Program (RAMP) and received an approval letter on June 9, 2022 [1-2]. That letter clarified payment was to be made to the landlord, listing Phillip D. Kennedy as such, with a “Period of Assistance” from ‘6/1/2022 to 8/31/2022” [1-2]. Plaintiff alleges the Kennedys accepted the RAMP payments for those months [1]. However, the Kennedys sold and deeded 205B West Reynolds Street to Luther Properties, LLC on May 31, 2022 [13-1].> Defendant Luther Properties, LLC “is a Mississippi limited liability company” with Defendant Justin Luther acting as its sole member [1]. Sometime prior to August 22, 2022, Defendant Luther began demanding payment from Plaintiff who claimed, and allegedly provided proof, RAMP had paid the rent [1]. Strained tensions between Plaintiff and his landlord continued until Defendant Luther’ filed to evict Plaintiff in the Justice Court of Pontotoc County on August 22, 2022 [7-1]. A hearing was set for September 13, 2022, but Defendant Luther filed a police report [7-2] on September 2, 2022, claiming Plaintiff stole an air conditioning unit from the rental property [7-2]. Plaintiff claims he owned the air conditioning unit [1]. Plaintiff further alleges, after Defendant Luther filed the police report, Defendant Luther changed the locks on the rental property’s doors, told Plaintiff, “Ain’t no black man going to owe me money,” and then “disposed of all of Plaintiff’s property” [1]. The Justice Court then granted Plaintiff’s eviction on September 13, 2022, and later, Plaintiff was found guilty of petit larceny in Pontotoc Municipal Court on October 18, 2022 for stealing the air conditioner [7-2]. This litigation followed.

3 The Court may take judicial notice of matters of public record, including judicial records. Norris □□ Hearst Trust, 500 F.3d 454, 461 n.9 (5th Cir. 2007); Binh Hoa Le v. Exeter Fin. Corp., 990 F.3d 410, 416 (Sth Cir. meh 4 For clarity’s sake, the “Complaint for Residential Eviction” filed in the Justice Court of Pontotoc County lists “Luther Properties” as the landlord.

i. Standard of Review When deciding a Rule 12(b)(6) motion to dismiss, the Court is limited to the allegations set forth in the complaint and any documents attached to the complaint. Walker v. Webco Indus., Inc., 562 F. App’x 215, 216-17 (Sth Cir. 2014) (per curiam) (citing Kennedy v. Chase Manhattan Bank USA, NA, 369 F.3d 833, 839 (Sth Cir. 2004)). “[A plaintiff’s] complaint therefore must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Phillips v. City of Dallas, Tex., 781 F.3d 772, 775-76 (Sth Cir. 2015) (quoting Ashcroft v. Igbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007))). A claim is facially plausible when the pleaded factual content “allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Jgbal, 556 U.S. at 678, 129 S. Ct. 1937 (citing Jwombly, 550 U.S. at 556, 127 S. Ct. 1955). In other words, “plaintiffs must allege facts that support the elements of the cause of action in order to make out a valid claim.” Webb v. Morella, 522 F. App’x 238, 241 (Sth Cir. 2013) (per curiam) (quoting City of Clinton, Ark. v. Pilgrim’s Pride Corp., 632 F.3d 148, 152-53 (5th Cir. 2010) (internal quotation marks omitted)). “[C]onclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss.” Id. (quoting Fernandez—Montes v. Allied Pilots Ass'n, 987 F.2d 278, 284 (Sth Cir. 1993) (internal quotation marks omitted)). “Dismissal is appropriate when the plaintiff has not alleged ‘enough facts to state a claim to relief that is plausible on its face’ and has failed to ‘raise a right to relief above the speculative level.’” Emesowum v. Houston Police Dep't, 561 F. App’x 372, 372 (Sth Cir. 2014) (per curiam) (quoting Twombly, 550 U.S. at 555, 570, 127 8. Ct. 1955).

As for Rule 12(b)(1), motions filed under Rule 12(b)(1) of the Federal Rules of Civil Procedure allow a party to challenge the subject matter jurisdiction of the district court to hear a case. Fed. R. Civ. P. 12(b)(1). Lack of subject matter jurisdiction may be found in any one of three instances: (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court’s resolution of disputed facts. Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001); Barrera—Montenegro v. United States, 74 F.3d 657, 659 (5th Cir. 1996). The burden of proof for a Rule 12(b)(1) motion to dismiss is on the party asserting jurisdiction. Ramming, 281 F.3d at 161. Accordingly, the plaintiff constantly bears the burden of proof that jurisdiction does in fact exist. Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 511 (5th Cir. 1980). As the Fifth Circuit directs, “When a 12(b)(1) motion is filed with other Rule 12 motions, [this Court] first considers its jurisdiction.” McLin v. Twenty-First Jud. Dist., 79 F.4th 411, 415 (Sth Cir. 2023) (citing Ramming, 281 F.3d at 161). HI. “Discussion and Analysis A. Subject Matter Jurisdiction Defendants contend this Court should dismiss Plaintiff's claims pursuant to the Rooker- Feldman doctrine? [8; 15] which “[rJeduced to its essence, . . . holds that inferior federal courts do not have the power to modify or reverse state court judgments except when authorized by Congress.” Burciaga v. Deutsche Bank Nat'l Trust Co., 871 F.3d 380, 384 (Sth Cir. 2017) (citing Truong v. Bank of America, N.A., 717 F.3d 377, 382 (Sth Cir. 2013) (quoting Union Planters Bank Nat’! Ass'n v. Salih, 369 F.3d 457, 462 (Sth Cir. 2004))) (internal quotation marks omitted).

5 The doctrine derives its name from District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983) and Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923)).

To be sure, the Rooker-Feldman doctrine “is a ‘narrow’ jurisdictional bar,’”® but it “does not prohibit a plaintiff from presenting some independent claim, albeit one that denies a legal conclusion that a state court has reached in a case to which [the plaintiff] was a party.” Uptown Grill, L.L.C., v. Camellia Grill Holdings, Inc., 46 F.4th 374, 384 (Sth Cir. 2022) (citing Truong, 717 F.3d at 382) (internal quotation marks omitted) (emphasis added). However, those claims which are not independent but are “inextricably intertwined”—that is, “reversal of the state court’s judgment would be a necessary part of the” plaintiff’s requested relief—are barred. Salinas v. U.S. Bank Nat. Ass’n, 585 F. App’x 866, 867 (Sth Cir. 2014) (citing Exxon, 544 U.S. at 291; Davis v. Bayless, 70 F.3d 367, 375 (Sth Cir. 1995)) (internal quotation marks omitted). The doctrine is comprised of “four elements: (1) a state-court loser; (2) alleging harm caused by a state-court judgment; (3) that was rendered before the district court proceedings began; and (4) the federal suit requests review and reversal of the state-court judgment.” Burciaga, 871 F.3d at 384 (quoting Houston v. Venneta Queen, 606 F. App’x 725, 730 (Sth Cir. 2015) (citing Exxon Mobil, 544 U.S. at 280)) (internal quotation marks omitted). In the case sub judice, it is clear the first three elements are met. Specifically, Plaintiff lost regarding his eviction and was convicted of his petit larceny charge [7-1; 7-2]; he repeatedly claims his eviction and conviction were “wrongful,” causing “emotional distress, lost family heirlooms, and [deprivation] of personal property” [1]; and both the eviction [7-1] and conviction [7-2] were rendered approximately two years prior to Plaintiff filing his Complaint [1] in this Court. Thus, this Court need only determine whether Plaintiff’s suit “requests review and reversal of the state- court judgment[s].” Burciaga, 871 F.3d at 384.

6 Miller v. Dunn, 35 F.4th 1007, 1010 (Sth Cir. 2022) (citing Lance v. Dennis, 546 U.S. 459, 464 (2006) (per curiam); Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S, 280, 284 (2005).

In Land and Bay Gauging, L.L.C. yv. Shor, the Fifth Circuit placed considerable emphasis on the timing of a plaintiff’s injury in determining whether the Rooker-Feldman doctrine applies. 623 F. App’x 674, 679-80 (Sth Cir. 2015) (citing Great W. Mining & Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159, 166 (3d Cir. 2010)). There, in discussing claims barred by Rooker-Feldman, the Fifth Circuit wrote, “The timing of the injury was when the Appellees took possession of the property belonging to Black after obtaining the court orders. Thus, the timing indicatef{d] that the judgment itself was the source of these injuries.” /d. at 679 (emphasis added). The reasoning in Shor is applicable in the case sub judice because each of the injuries Plaintiff pleads occurred prior to Defendant Luther’s obtaining any court orders. The Shor plaintiff, arguing a separate claim from those discussed above, “allege[d] the [defendant] entities’ conduct in seeking the judgment—not the judgment itself—” was the basis for his claim. /d. at 680 (emphasis in original). The Fifth Circuit found Rooker-Feldman did not bar this claim. /d. This reasoning is more in line with the case at hand; therefore, the Rooker-Feldman doctrine does not bar this Court from maintaining jurisdiction over Plaintiff’s claims. B. Motion to Dismiss Having found Rooker-Feldman does not bar Plaintiff’s claims, the Court conducts a 12(b)(6) analysis. Plaintiff’s Complaint [1] alleges Defendant Luther violated Title VIII of the Civil Rights Act of 1968 or, more colloquially, the Fair Housing Act (FHA), which prohibits discrimination in housing based on race and other protected classes. 42 U.S.C. § 3601 et. seq. Specifically, Plaintiff claims Defendant Luther violated 42 U.S.C. §§ 3604 and 3617 when he stated, “Ain’t no black man going to owe me money” and evicted Plaintiff [1, p.6 (internal quotation marks omitted)]. Further, Plaintiff alleges a Mississippi trespass claim,’ and a Mississippi conversion claim against Defendant Luther while also alleging a breach of contract 7 Miss, Code Ann. § 89-8-39.

claim against the Kennedys [1]. The Court begins with the FHA claim brought under 28 U.S.C. § 1331 federal question jurisdiction because the state law claims brought under 28 U.S.C. § 1367 supplemental jurisdiction require a companion federal claim or face dismissal. I, 42 U.S.C. §§ 3604(a)-(b) Starting with Section 3604, Plaintiff’s Complaint [1] specifically points to subsections (a), (b), and (c) of that statute. Those subsections state in relevant part: (a) To refuse to .. . rent after the making of a bona fide offer, or to refuse to negotiate for the . . . rental of, or otherwise make unavailable or deny, a dwelling to any person because of race [or] color. (b) To discriminate against any person in the terms, conditions, or privileges of . . . rental of a dwelling, or in the provision of services or facilities in connection therewith, because of race [or] color. (c) To make, print, or publish, or cause to be made, printed, or published any notice, statement, or advertisement, with respect to the sale or rental of a dwelling that indicates any preference, limitation, or discrimination based on race [or] color, . . . or an intention to make any such preference, limitation, or discrimination. 42 U.S.C. § 3604(a)-(c). Section 3604(a) applies to the case sub judice because “the Fifth Circuit held open the possibility that actual or constructive eviction could qualify as refusal to rent under section 3604(a).” Hughes v. Bouchon Prop. LLC, Civ. Action No.: 24-103, 2024 WL 2784626, *3 (E.D. La. May 30, 2024) (citing Cox v. City of Dallas, 420 F.3d 734, 742 (Sth Cir. 2005) (citing supporting authority from other circuits))). The same is true for section 3604(b) because it “may encompass the claim of a current . . . renter for attempted and unsuccessful discrimination relating to the initial . . . rental or for actual or constructive eviction.” Cox, 430 F.3d at 746-47 (citing Woods Drake v. Lundy, 667 F.2d 1198 (5th Cir. 1982)). For the purposes of this opinion then, both sections require a full analysis as this Court accomplishes collectively below. “Disparate treatment is deliberate discrimination,” which Plaintiff alleges. Inclusive Cmtys. Project, Inc. v. Lincoln Prop. Co., 920 F.3d 890, 909 (Sth Cir. 2019) (citing Munoz v. Orr,

- 200 F.3d 291, 299 (Sth Cir. 2000)) (internal quotation marks omitted). With a disparate treatment claim, a plaintiff must show a “protected trait (e.g., race) motivated the challenged action.” Treece v. Perrier Condo. Owners Assoc., Inc., 593 F.Supp.3d 422, 435 (E.D. La. 2022) (citing inclusive Cmtys., 920 F.3d at 910). “A plaintiff may prove disparate treatment by direct evidence or circumstantial evidence.” /d. (citing Inclusive Cmtys., 920 F.3d at 909-10; see also, Zexas v. Crest Asset Mgmt, Inc., 85 F.Supp.2d 722, 728 (S.D. Tex. 2000)). “Whether a plaintiff presents direct or circumstantial evidence of discrimination determines the framework in which the court must analyze the claim.” /d. (citing Crest Asset Mgmt., 85 F.Supp.2d at 728-30). The Fifth Circuit defines “[d]irect evidence of discrimination [as] evidence which, if believed, would prove the existence of a fact . . . without any inferences or presumptions.” Bodenheimer v. PPG Indus., Inc., 5 F.3d 955, 958 (Sth Cir. 1993); see also, McMichael v. Transocean Offshore Deepwater Drilling, Inc., 934 F.3d 447, 456 (Sth Cir. 2019) (emphasis added). Plaintiff contends Defendant Luther’s alleged statement, ‘“‘[a]in’t no black man going to owe me money,” [1, p. 6] is direct evidence of discrimination. This Court disagrees. While the statement seems “racially-tinged,” inferences and presumptions are necessary to prove the existence of any discriminatory intent regarding the complained of actions and is therefore not direct evidence. Gibson v. Verizon Serv. Org., Inc., 498 F. App’x 391, 394 (Sth Cir. 2012); Bodenheimer, 5 F.3d at 958. Because no direct evidence is provided, Plaintiff’s claims must be based on circumstantial evidence. The Court must therefore use the McDonnell Douglas burden- shifting framework® to determine whether Plaintiff’s section 3604(b) claim is plausible. Mandawala v. Struga Mgmt., No. 21-50644, 2023 WL 2712500, *4 (Sth Cir. March 30, 2023) (citing Crain v. City of Selma, 952 F.3d 634, 641 (Sth Cir. 2020) (citations omitted)).

8 McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).

Under McDonnell Douglas, a plaintiff must first make a prima facie claim of disparate treatment under the FHA; that is, “(1) membership in a protected class, (2) that he applied and was qualified to rent or purchase housing[,] (3) that [he] was rejected, and (4) that the housing thereafter remained open to similarly situated applicants.” Jd. (citing Crain, 952 F.3d at 640-41) (edits in original) (internal quotation marks omitted). “The defendant is [then] given a chance to put forth a ‘legitimate, non-discriminatory reason for the rejection.’” /d. (citing Inclusive Comms., 920 F.3d at 911). Next, “‘[t]he burden . . . shifts back to the plaintiff to rebut the reason offered . . . by showing it is a pretext for discrimination.’” /d. However, “[u]nder a disparate treatment theory, ‘there can be no liability without a finding . . . the protected trait (¢.g., race) motivated the challenged action.’” /d. (citing Inclusive Comms., 920 F.3d at 910). “The ultimate burden, however, remains with the plaintiff.” /d. (citing Raggs v. Miss. Power & Light Co., 278 F.3d 463, 468 (Sth Cir. 2002)). Ensuring it “liberally construe[s] [the complaint], with all reasonable inferences drawn in the light most favorable to [Plaintiff],” the Court begins with the prima facie showing. Woodard, 419 F.3d at 351. As a black man, Plaintiff is a member of a protected class. He was also qualified to rent the home, as evidenced by his residence there from 2015 until his eviction in 2022. An eviction is comparable to a rejection; therefore, the first three prongs are met. Hughes, 2024 WL 2784626 at *3. The final prong requires the rented property “remained available to rent for others,” and while “the pleadings do not directly discuss this element, the Court can plausibly infer the property remained open for rental” because Defendant Luther Properties is in business to rent its owned properties for Defendant Luther’s commercial benefit. /d. As in Hughes v. Bouchon Properties LLC, “[t]here is no affirmative evidence suggesting otherwise and, at this

early stage, these facts are sufficient.” /d. Therefore, Plaintiff’s sections 3604(a) and (b) claims are reasonably plausible and survive 12(b)(6). 2. 42 U.S.C. § 3604(c) The Court turns now to 42 U.S.C. § 3604(c). “To succeed on a claim under § 3604(c), a plaintiff must prove a defendant (1) made a statement (2) with respect to the .. . rental of a dwelling (3) that indicated a preference based on protected class membership.” Treece v. Perrier Condo. Owners Ass’n, Inc., Civ. Action No. 17-10153, 2049 WL 6464984, *5 (E.D. La. Dec. 2, 2019) (citing Greater New Orleans Fair Hous. Action Ctr. y. Kelly, 364 F.Supp.3d 635, 653 (E.D. La. 2019) (quoting White v. United States Dept of Hous. and Urb. Dev., 475 F.3d 898, 904-05 (7th Cir. 2007)). These prongs are considered under the 12(b)(6) standard where a “dismissal will be upheld only if ‘it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Woodard v. Andrus, 419 F.3d 348, 351 (Sth Cir. 2005) (citing Lowrey v. Texas A & M Univ. Sys., 117 F.3d 242, 247 (Sth Cir. 1997) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957))) (emphasis added). That said, Plaintiff clearly alleges Defendant Luther (1) made a statement (2) regarding the rental of a dwelling when he said, “Ain’t no black man going to owe me money.” It is too early at this juncture for the Court to make a full determination on prong three, but Plaintiff at least alleges the above statement satisfies prong three. Therefore, Plaintiff’s section 3604(c) claim is plausible on its face and survives 12(b)(6). 3. 42 U.S.C § 3617 The Court now considers Plaintiff’s final federal claim pled under 42 U.S.C. § 3617. That statue states in relevant part:

It shall be unlawful to coerce, intimidate, threaten, or interfere with any person in the exercise or enjoyment of, or on account of his having exercised or enjoyed .. . any right granted or protected by section... . 3604... of this title. 42 U.S.C. § 3617. A section 3617 claim cannot stand alone but must be paired with another protected right (e.g., section 3604 claims). McZeal v. Ocwen Fin. Corp., No. 00-20817, 2001 WL 422375, *2 (Sth Cir. March 28, 2001) (“Because his § 3605 claim fails, McZeal’s claim under § 3617 must also fail.”), Because Plaintiff’s section 3604 claims survive 12(b)(6), a section 3617 analysis is necessary. Section 3617 claims are essentially retaliation claims under the FHA, and “[t]he burden-shifting framework applied in disparate treatment cases under Title VII is also used in retaliation cases.” Brown v. Harris Cnty. Hous. Auth., Civ. Action No. H-15-2847, 2018 WL 3080880, *11 (S.D. Tex. Jan. 11, 2018) (citing Crest Asset Mgmt, 85 F.Supp.2d at 733 (citing Long v. Eastfield Coll., 88 F.3d 300, 304 (Sth Cir. 1996) (citing McMillan v. Rust. Coll., Inc., 710 F.2d 1112, 1116 (Sth Cir. 1983))). To succeed on such a claim, a plaintiff must show: “[1] [he] was engaging in a ‘protected activity;’ [2] the subsequent actions of the defendant were causally linked with [his] exercise of that protected activity; and [3] [he] suffered some resulting damage.” Scruggs v. Marshall Hous. Auth., No. 00-40216, 2000 WL 1273473, *2 (5th Cir. Aug. 23, 2000) (citing San Pedro Hotel Co., Inc. v. City of Los Angeles, 159 F.3d 470, 477 (9th Cir. 1998); 42 U.S.C. § 3617). Plaintiff has failed to plead he engaged in any protected activity; therefore, Plaintiff’s section 3617 claim must be dismissed. 4. Trespass The Court turns now to Plaintiff’s state law claims,” the first of which is trespass under Miss. Code Ann. § 89-8-39 which is Mississippi’s eviction statute. Necessarily, the Court looks to the Residential Lease [7-3] attached in lengthier form to Defendant Luther’s Motion to

9 The Court notes at the outset the Erie doctrine applies; thus, the Court’s determinations regarding the Plaintiff's state law claims are guided by Mississippi state law. Erie R. Co. v. Tompkins, 304 U.S. 64, 78-80 (1938): Centennial Ins. Co. v. Ryder Truck Rental, Inc., 149 F.3d 378, 382 (Sth Cir. 1998). 1]

Dismiss and partially to Plaintiff's Complaint [1-1]. The Fifth Circuit has carved out a narrow exception to the general 12(b)(6) standards listed above where courts “may also consider documents that a defendant attaches to a motion to dismiss .. . if they are referred to in the plaintiff's complaint and are central to [his] claim.” Sligh v. City of Conroe, Texas, 87 F.4th 290, 297-98 (Sth Cir. 2023) (citing Villarreal v. Well Fargo Bank, N.A., 814 F.3d 763, 766 (Sth Cir. 2016) (quoting Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498-99 (Sth Cir. 2000))) (cleaned up) (internal quotation marks omitted). Plaintiff refers to the Residential Lease in his Complaint [1], attaches a portion of that Residential Lease to the Complaint [1-1], and relies heavily on that Residential Lease to make his state law claims; therefore, this Court may consider Defendant’s attached Residential Lease [7-3]. Returning to the substance, Plaintiff alleges Defendant Luther committed trespass when he “changed Plaintiff’s locks without warrant [depriving] Plaintiff of the opportunity to retrieve his personal property from the rental home” [1]. In Mississippi, “common-law trespass is simply an entry ‘upon the land of another without a license or other right for one’s own purpose.” Okhuysen v. City of Starkville, 333 So.3d 573, 582 (Miss. Ct. App. 2022) (citing Thomas y. Harrah’s Vicksburg Corp., 734 So.2d 312, 316 (§ 10) (Miss. Ct. App. 1999)). Here, it is clear Plaintiff’s trespass claim is not plausible on its face because defendant had a legal right to enter the premises. The lease clearly grants Defendant the right to enter the property; specifically, it states: Lessee shall permit Lessor or Lessor’s agents, representatives, or employees to enter the premises at all reasonable times for the purpose of inspecting the premises to determine whether Lessee is complying with the terms of this lease and for the purpose of doing other lawful acts that may be necessary to protect Lessor’s interest in the premises under this lease. [7-3, p. 4]. Further, the “Lessee shall be guilty of a material default and breach ... should... any rent... be unpaid when due under this lease” [7-3, pp. 5-6]. If a material breach occurs the 12

lease grants the lessor the ability to “terminate Lessee’s right to possession of the premises,” which Defendant Luther did when he changed the locks. Therefore, Defendant Luther had a legal right to enter the premises and change the locks based on the Residential Lease. As a result, Plaintiff’s trespass claim is not plausible on its face and must be dismissed pursuant to Rule 12(b)(6). 5. Conversion The Mississippi Supreme Court has held: [T]o maintain an action for conversion, there must have been, on the part of the defendant, some unlawful assumption of dominion over the personal property involved, in defiance or exclusion of the plaintiffs rights, or else a withholding of the possession under a claim of right or title inconsistent with that of the plaintiff. 4-Way Electric Serv, LLC v. Huntcole, LLC, 366 So.3d 844, 850 (Miss. 2023) (quoting First Investors Corp. v. Rayner, 738 So.2d 228, 235 (Miss. 1999)) (edits in original). Plaintiffs Complaint [1] properly alleges an “unlawful assumption of dominion” by Defendant Luther over his property when Plaintiff was locked out of the rental premises and unable to gain access to his personal effects inside. Further, it is alleged Defendant Luther disposed of this property, and Plaintiff never regained dominion over it. This is enough to make a plausible claim for conversion; therefore, Plaintiff’s conversion claim survives 12(b)(6). 6. Breach of Contract Plaintiff’s final claim of breach of contract applies only to Defendants Phillip and Angie Kennedy [1]. More specifically, Plaintiff alleges “the Kennedys wrongfully breached the covenant of quiet enjoyment when they failed to transfer RAMP funds to [Defendant] Luther, which resulted in Frazier’s and his daughter’s eviction” [/d.]. The Supreme Court of Mississippi clearly held in Meyn v. City of Gulfport, 570 So.2d 1198, 1200 (Miss. 1990), “absent express language to the contrary, real estate leases contain an

implied covenant of quiet enjoyment against lessor interference.” Nothing in the Residential Lease [7-3] contradicts an implied covenant of quiet enjoyment; therefore, the Court must assume one exists. What is more, the covenant of quiet enjoyment is “broken only by eviction or the equivalent of eviction.” Bridges v. Heimburger, 360 So.2d 929, 931 (Miss. 1978) (citing Green v. Irving, 54 Miss. 450 (1877); Brunt v. McLaurin, 178 Miss. 86, 172 So. 309 (1937)); see also, Seymour v. Evans, 608 So.2d 1141, 1147 (Miss. 1992). Further, “[t]he covenant[] of quiet enjoyment . . . [is] held to run with the land, and as such may be taken advantage of by a remote grantee.” Howard v. Clanton, 481 So.2d 272, 275 (Miss. 1985). With this in mind, Plaintiff has stated a claim plausible on its face by alleging the Kennedys withheld rent from Defendant Luther causing Plaintiff’s ultimate eviction. IV. Conclusion For all the foregoing reasons, the Court finds Defendant Justin Luther and Defendant Luther Properties, LLC’s Motion to Dismiss [7] should be denied in part regarding Plaintiff’s 42 U.S.C. § 3604(a)-(c) and conversion claims; and granted in part regarding Plaintiff’s 42 U.S.C. § 3617 and trespass claims. The Court is also of the opinion Defendants Phillip and Angie Kennedy’s Motion to Dismiss [13] should be denied. An order in accordance with this opinion shal! issue this day. Deis oto THIS the day of April, 2025.

ie MN ctlioe SENIOR U.S. DISTRICT JUDGE