Lenhardt v. City of Mankato, Kansas, et al, No. 5:2018cv04151 - Document 53 (D. Kan. 2019)
Court Description: MEMORANDUM AND ORDER granting in part and denying in part 42 Motion to Dismiss for Failure to State a Claim and Motion to Dismiss for Lack of Jurisdiction and 44 Motion to Dismiss; denying 46 Motion for Preliminary Injunction. Plaintiff shall have 30 days to file her second amended complaint. See order for details. Signed by U.S. District Senior Judge Sam A. Crow on 6/7/19. Mailed to pro se parties Ursula Lenhardt, Edward Hood, Paul Bohnert by regular mail (msb)
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Lenhardt v. City of Mankato, Kansas, et al Doc. 53 I N THE UNI TED STATES DI STRI CT COURT FOR THE DI STRI CT OF KANSAS URSULA LENHARDT, Plaint iff, vs. Case No. 18- 4151- SAC- KGG CI TY OF MANKATO, KANSAS, et al., Defendant s. MEMORANDUM AND ORDER The case com es before t he court on t he m ot ion t o dism iss pursuant t o Fed. R. Civ. P. 12( b) ( 1) , ( 4) and ( 6) filed by t he defendant Mat t hew Pierce ( ECF# 42) ; t he m ot ion t o dism iss pursuant t o Fed. R. Civ. P. 12( b) ( 1) ,( 3) and ( 6) filed by t he defendant s Cit y of Mankat o and Chris Rhea ( “ Cit y defendant s” ) ( ECF# 44) , t he plaint iff’s m ot ion for prelim inary inj unct ion ( ECF# 46) 1 , and t he plaint iff’s supplem ent al pleading in support of her prelim inary inj unct ion m ot ion ( ECF# 51) 2 . The court t akes up t hese 1 The plaint iff apparent ly int ends her filing ( ECF# 46) t o not only be a m ot ion for prelim inary inj unct ion, but also t o be a m ot ion for expedit ed discovery, a m ot ion t o add defendant s, and a response opposing Pierce’s m ot ion t o dism iss. From t his point forw ard, t he plaint iff shall file her m ot ions and responses separat ely, and m ot ions should not be j oined in a single pleading unless request ing relief in t he alt ernat ive. The court sum m arily denies her request for expedit ed discovery and her request t o add part ies. Her filing fails t o provide t he necessary grounds for grant ing t his relief now. The m agist rat e j udge will be handling such m at t ers, and t he part ies will be expect ed t o com ply wit h her orders and wit h t he rules of t his court in bringing t hese m at t ers t o t he court . 2 The plaint iff also appears t o address som e issues raised in t he Cit y defendant s’ m ot ion t o dism iss. Again, t he plaint iff shall not com bine such pleadings in t he fut ure. The court appreciat es t hat t he plaint iff’s filings at 1 Dockets.Justia.com m at t ers in t he following order, t he defendant s’ j urisdict ional challenge, t he plaint iff’s m ot ion for prelim inary inj unct ion, and t he balance of t he defendant s’ argum ent s for dism issal. As t he defendant s discuss in t heir filings, t he plaint iff’s pro se filings are am biguous, ram bling, and confusing. This order is int ended t o im prove t he sit uat ion. Am e n de d Com pla in t ( ECF# 2 0 ) The court is m indful t hat a “ pro se lit igant 's pleadings are t o be const rued liberally and held t o a less st ringent st andard t han form al pleadings draft ed by lawyers.” Hall v. Bellm on, 935 F.2d 1106, 1110 ( 10t h Cir.1991) . St ill, a pro se part y is expect ed t o follow t he sam e rules of procedure as any ot her lit igant . See Green v. Dorrell, 969 F.2d 915, 917 ( 10t h Cir. 1992) , cert . denied, 507 U.S. 940 ( 1993) . Under Fed.R.Civ.P. 8( a) , t he com plaint it self m ust include enough fact s t o give t he defendant s fair not ice of t he grounds upon which t he plaint iff's claim s rest . Conley v. Gibson, 355 U.S. 41, 77, 78 S.Ct . 99, 103 ( 1957) . Plaint iff's pro se st at us does not exem pt her from com pliance wit h t his m inim al pleading requirem ent . “ This is so because a pro se plaint iff requires no special legal t raining t o recount t he fact s surrounding his alleged inj ury, and he m ust provide such fact s if t he court is t o det erm ine whet her he m akes out a claim ECF # 46 and 51 are subst ant ially overlapping in cont ent . The plaint iff is adm onished t hat all fut ure filings should bear a t it le consist ent wit h t he plaint iff’s int ended purpose for filing and should reflect an effort at being concise and clear. 2 on which relief can be grant ed.” Hall, 935 F.2d at 1109. I t is not t he proper role of t he dist rict court t o act as an “ advocat e for t he pro se lit igant .” Hall v. Bellm on, 935 F.2d at 1110. Therefore, t he court does not “ supply addit ional fact ual allegat ions t o round out a plaint iff's com plaint .” Whit ney v. St at e of New Mexico, 113 F .3d 1170, 1173–74 ( 10t h Cir.1997) . At t he out set , t he general rule is t hat an “ am ended com plaint supersedes t he original com plaint and renders t he original com plaint of no legal effect .” Franklin v. Kansas Dept . of Correct ions, 160 Fed. Appx. 730, * 733–734, 2005 WL 3515716 at * 1 ( 10t h Cir. 2005) ( cit ing Miller v. Glanz, 948 F.2d 1562, 1565 ( 10t h Cir. 1991) ) , cert . denied, 549 U.S. 1219 ( 2007) ; see Davis v. TXO Product ion Corp., 929 F.2d 1515, 1517 ( 10t h Cir.1991) ( “ [ i] t is well est ablished t hat an am ended com plaint ordinarily supersedes t he original and renders it of no legal effect ” ) ( int ernal quot at ions m arks and cit at ions om it t ed) ) . Under Federal Rule of Civil Procedure 10, “ [ a] st at em ent in a pleading m ay be adopt ed by reference elsewhere ... in any ot her pleading or m ot ion.” Fed. R. Civ. P. 10( c) . The plaint iff’s am ended com plaint fails t o clearly and specifically reference, adopt or incorporat e t he original com plaint . There are, however, indicat ions in t he am ended com plaint t hat t he plaint iff believed she was sim ply adding “ furt her” allegat ions, fact s and exhibit s t o cure deficiencies in t he j urisdict ional allegat ions, t o support her prior alleged claim s, and t o support a new claim for inj unct ive relief. ECF# 20, p. 1. The court ’s order t hat ident ified t he plaint iff’s need for filing an 3 am ended com plaint failed t o caut ion t hat her am ended com plaint also should include a ll her claim s and allegat ions. The court will give t he plaint iff anot her opport unit y t o am end her com plaint in response t o t his court ’s order addressing t he pending m ot ions t o dism iss. The plaint iff shall include a ll allegat ions and claim s which she want s incorporat ed from her original com plaint and which she adds t o cure t he pleading deficiencies not ed in t his order. The defendant s are only m inim ally prej udiced by t his approach, because t he court will st ill address t heir pending m ot ions t o dism iss and because t he plaint iff’s am ended com plaint largely echoes t he cent ral allegat ions found in her original com plaint . I n bot h her com plaint s, t he plaint iff nam es t he following defendant s: Cit y Council of Mankat o, Cit y Adm inist rat or Chris Rhea, and her neighboring landowners, Edward Hood, Mat t hew Pierce, and Paul Bohnert . I n her original com plaint , t he plaint iff list ed “ t ort s t o t he land” and ident ified nuisance and t respassing by her neighbors, Pierce and Hood, who held “ an unperm it t ed go- cart - rally in t heir backyard” for “ five hours” on July 28, 2018. ECF# 1, p. 3 and ECF# 1.1, p. 5. She alleges t hat prior t o t he rally she subm it t ed a pet it ion t o t he Cit y opposing t he locat ion of t he go- cart rally. She alleges t he em issions from t his rally were “ highly t oxic wast e” ( ECF# 20, p. 17) and dam aged her valuable organic herbs and a rare whit e t ruffle grove in her backyard. I n her am ended com plaint , t he plaint iff sum m arily references “ t respasses” by Hood and Pierce in 2016 and in 2017 4 t o dam age her “ herbal field.” ECF# 20, p. 5. The plaint iff includes in her am ended com plaint t hat her t hree neighbors ( Hood, Pierce and Bohnert ) com bined t o harass her int o selling her propert y by j oint ly signing repeat ed com plaint s t o t he Cit y about t he condit ion of her propert y. The plaint iff alleges t he defendant s’ t respasses ( go- cart rally and run- off) “ cont am inat ed, t hereby ruined . . . [ her] “ ent ire backyard already.” ECF# 20, p. 15. She assert s t he “ defendant s ext ensively brought out pest icide on t heir propert y for t he past years and t hese addit ional chem icals . . . [ have] washed int o plaint iff’s rare whit e t ruffle grove . . . t hereby ruining t he m ushroom crop com plet ely.” ECF# 20, p. 18. I n her original com plaint , t he plaint iff set out dam ages of $10,000 for one- year’s loss of t he herbal crop, $300,000 for one- year’s loss of a m ushroom harvest ( plus t he loss for t he next t en t o t went y years based on producing 100 pounds of t ruffles annually) , and $350 in lab report cost s for analysis of her backyard soil. ECF# 1, p.4. She also alleges as loss in her am ended com plaint t he rest orat ion or “ purificat ion” of her cont am inat ed backyard soil. Against t he Cit y defendant s, t he plaint iff claim s t hey failed t o prevent her backyard’s cont am inat ion when t hey refused t o st op t he go- cart rally. They act ed on t he ot her defendant s’ baseless com plaint s about her hom e’s condit ion. They forced an inspect ion of her propert y and t hen fraudulent ly described t he condit ion of her hom e. She pet it ioned t he Cit y t o st op t he go- cart rally and t o forego t he inspect ion of propert y and any 5 subsequent Cit y proceeding t o find her propert y unsafe and dangerous. Her pet it ion accused t he com plainant s of t rying t o t ake away her propert y and of abusing t he exist ing regulat ion. ECF# 1- 1. She alleges t he defendant Cit y Council wrongly relied on t his “ fraudulent ” inspect ion report rat her t han her evidence in concluding t hat t he plaint iff’s hom e was unsafe and should be dem olished. The plaint iff seeks t o enj oin t he Cit y from proceeding wit h t he dem olit ion and t o enj oin t he ot her defendant s from cont inuing t o dam age her propert y. Ju r isdict ion a l Ch a lle n ge - - Am ou n t in Con t r ove r sy Early in t his case, Magist rat e Judge Gale filed a report and recom m endat ion t o dism iss t he act ion, in part , because “ Plaint iff, who resides in Kansas, has failed t o est ablish diversit y j urisdict ion as t o t he nam ed Defendant s, all of whom are resident s of Kansas also.” ECF# 6, p. 9. When it becam e apparent t hat t he plaint iff was not a cit izen of t his count ry and t hat t he plaint iff m ay not be lawfully adm it t ed as a perm anent resident , t he court required t he plaint iff t o offer addit ional allegat ions and evidence in support of diversit y j urisdict ion under 28 U.S.C. § 1332( a) ( 2) . ECF# 23. The court event ually accept ed t he plaint iff’s am ended com plaint , as supplem ent ed by addit ional exhibit s, ECF# # 24- 26, “ as a showing of diversit y j urisdict ion t o j ust ify t he m agist rat e j udge m oving forward wit h t he case.” ECF# 28, p. 2. Before now, neit her t he m agist rat e j udge nor t his 6 court has evaluat ed t he reasonableness of t he plaint iff’s dam age allegat ions for purposes of det erm ining t he am ount in cont roversy requirem ent . Bot h pending m ot ions t o dism iss challenge t he court ’s diversit y j urisdict ion due t o t he plaint iff’s failure t o allege a specific am ount in cont roversy in her am ended com plaint . The defendant s also argue t he plaint iff cannot allege t his t hreshold am ount as her ent ire propert y’s appraised value for propert y t ax purposes is $3,230. The defendant Pierce also challenges t he plaint iff’s valuat ion of her t ruffle grove as fact ually unreasonable and lacking in evidence. By st at ut e, a federal dist rict court has original j urisdict ion “ where t he m at t er in cont roversy exceeds t he sum or value of $75,000 . . . and is bet ween . . . cit izens of a St at e and cit izens or subj ect s of a foreign st at e.” 28 U.S.C. § 1332( a) ( 2) . A Rule 12( b) ( 1) m ot ion seeking dism issal for lack of subj ect m at t er j urisdict ion pursues eit her a facial at t ack or a fact ual at t ack. Paper, Allied- I ndust rial, Chem ical and Energy Workers I nt ern. Union v. Cont inent al Carbon Co., 428 F.3d 1285, 1292 ( 10t h Cir. 2005) . A facial at t ack challenges t he sufficiency of t he com plaint ’s allegat ions, and t he court accept s t hose allegat ions as t rue. Holt v. Unit ed St at es, 46 F.3d 1000, 1002 ( 10t h Cir. 1995) . A fact ual at t ack put s t he allegat ions in disput e, and t he court “ m ay not presum e t he t rut hfulness of t he com plaint ’s fact ual allegat ions.” I d. at 1003 ( cit at ion om it t ed) . I n m aking it s own findings, t he court “ has wide discret ion t o allow affidavit s, ot her docum ent s, and a lim it ed 7 evident iary hearing t o resolve disput ed j urisdict ional fact s under Rule 12( b) ( 1) .” I d. A court need not convert a Rule 12( b) ( 1) m ot ion t o a Rule 56 m ot ion unless “ resolut ion of t he j urisdict ional quest ion is int ert wined wit h t he m erit s of t he case.” I d. “ Because t he j urisdict ion of federal court s is lim it ed, t here is a presum pt ion against our j urisdict ion, and t he part y invoking federal j urisdict ion bears t he burden of proof.” Marcus v. Kansas Dep’t of Revenue, 170 F.3d 1305, 1309 ( 10t h Cir. 1999) ( int ernal quot at ion m arks and cit at ion om it t ed) . The defendant s appear t o m ount a fact ual challenge which is not int ert wined wit h t he m erit s of t he case. Thus, evidence out side of t he pleadings m ay be considered wit hout convert ing t he m ot ion t o a Rule 56 m ot ion. Holt , 46 F.3d at 1003. The plaint iff has not subm it t ed evidence showing her losses exceed $75,000. The Tent h Circuit analyzes a fact ual at t ack on t he am ount in cont roversy quest ion in t his way: “ When federal subj ect m at t er j urisdict ion is challenged based on t he am ount in cont roversy requirem ent , t he plaint iffs m ust show t hat it does not appear t o a legal cert aint y t hat t hey cannot recover” t he j urisdict ion am ount . I d. [ Wat son v. Blankinship, 20 F.3d 383, 386 ( 10t h Cir. 1994) ] ) . Thus, Woodm en, not Sanchez, has t he burden of est ablishing j urisdict ion. Woodm en can m eet t his burden by dem onst rat ing t hat it is not legally cert ain t hat t he claim is less t han t he j urisdict ional am ount . See Adam s v. Reliance St andard Life I ns. Co., 225 F.3d 1179, 1183 ( 10t h Cir. 2000) . The legal cert aint y st andard is very st rict . As a result , it is difficult for a dism issal t o be prem ised on t he basis t hat t he requisit e j urisdict ional am ount is not sat isfied. 14B Wright , Miller & Cooper, Federal Pract ice & Procedure: Jurisdict ion 3d § 3702, at 97–98 ( 1998) . There is a st rong presum pt ion favoring t he am ount alleged by t he 8 plaint iff. See Adam s, 225 F.3d at 1183 ( not ing t hat am ount alleged in t he com plaint can alone be sufficient t o sat isfy showing t hat it is not legally cert ain t he am ount is less t han t he j urisdict ional requirem ent ) ; see also Tongkook Am ., I nc. v. Shipt on Sport swear Co., 14 F.3d 781, 785 ( 2d Cir.1994) ( “ The legal im possibilit y of recovery m ust be so cert ain as virt ually t o negat ive t he plaint iff's good fait h in assert ing t he claim .” ( quot at ion om it t ed) ) . Generally, dism issal under t he legal cert aint y st andard will be warrant ed only when a cont ract lim it s t he possible recovery, when t he law lim it s t he am ount recoverable, or when t here is an obvious abuse of federal court j urisdict ion. 14B Wright , Miller & Cooper, Federal Pract ice & Procedure: Jurisdict ion 3d § 3702, at 98–101 ( 1998) . Woodm en of World Life I ns. Societ y v. Manganaro, 342 F.3d 1213, 1216–17 ( 10t h Cir. 2003) ( foot not e om it t ed) . The am ount in cont roversy for claim s of declarat ory and inj unct ive relief “ is m easured by t he value of t he obj ect of t he lit igat ion.” Lovell v. St at e Farm Mut . Aut o. I ns. Co., 466 F.3d 893, 897 ( 10t h Cir. 2006) . The Tent h Circuit uses t he “ eit her viewpoint rule which considers eit her t he value t o t he plaint iff or t he cost t o defendant of inj unct ive and declarat ory relief as t he m easure of t he am ount in cont roversy for purposes of m eet ing t he j urisdict ional m inim um .” I d. Despit e t hese st rict legal st andards, t he court finds here t hat t he defendant s’ evidence put s in disput e t he reasonableness of t he plaint iff’s claim ed losses for t he t ruffle grove. The plaint iff’s allegat ions sim ply lack sufficiency and consist ency as t o convince t his court t hat her recoverable dam ages “ bear a reasonable relat ion t o t he m inim um j urisdict ional floor.” Marcus Food Co. v. DiPanfilo, 671 F.3d 1159, 1171 ( 10t h Cir. 2011) ( int ernal quot at ion m arks and cit at ions om it t ed) . I n her original com plaint , t he plaint iff alleges only one loss ost ensibly t aking her act ion over t he $75,000 9 t hreshold, t hat is, her whit e t ruffle harvest . Specifically, she alleges a “ one hundred pound whit e t ruffle [ crop] a year,” and t hat “ t he loss of t he m ushroom harvest t his year is about $300,000 ( calculat ed for a bad year) .” ECF# 1, p. 4. Despit e t his allegat ion of a lucrat ive t ruffle harvest from an est ablished grove, t he plaint iff assert ed in her “ pet it ion” against t he Cit y’s inspect ion of her propert y, “ Miss Ursula Lenhardt had t o repair her propert y aft er a fire- dam age wit hout receiving t he donat ed m oney, it got st olen from her—she had t o do all t he work wit hout any financial funds—it will be highly unfair t o expert her t o m anage all t he necessary work wit hout being able t o buy cert ain needed new m at erials.” ECF# 1- 2, p. 2. The plaint iff cont inues t o assert her whit e t ruffle grove is a viable asset deserving of inj unct ive relief. ECF# 46, p. 4. Not only are t hese allegat ions difficult t o reconcile but appear inconsist ent on t heir face. They suggest t he plaint iff m ay be “ claim ing dam ages over $75,000 m erely t o sat isfy federal court j urisdict ional requirem ent s.” See Sokkia Credit Corp. v. Bush, 147 F. Supp. 2d 1101, 1104 ( D. Kan. 2001) . They call int o quest ion whet her t he am ount of t he claim ed loss is “ m ade in good fait h.” St . Paul Mercury I ndem . Co. v. Red Cab Co., 303 U.S. 283, 288 ( 1938) ( “ [ T] he sum claim ed by t he plaint iff cont rols if t he claim is apparent ly m ade in good fait h.” ) . When t he allegat ions of j urisdict ional fact s are properly challenged as here, t he “ plaint iff m ust support t hem by com pet ent proof, McNut t v. General Mot ors Accept ance Corp., 298 U.S. 178, 189, 56 S.Ct . 780, 785, 80 L.Ed. 1135 ( 1936) , 10 including am endm ent s or affidavit s, if necessary. Diefent hal . v. C.A.B., 681 F.2d 1039, 1052 ( 5t h Cir. 1982) .” Salazar v. Furr's, I nc., 629 F.Supp. 1403, 1407 ( D.N.M. 1996) . Once t he evidence is subm it t ed, t his court w ill decide t he j urisdict ional issue. Em land Builders, I nc. v. Shea, 359 F.2d 927, 929 ( 10t h Cir. 1966) ( “ [ J] urisdict ion cannot be conferred or est ablished by colorable or feigned allegat ions solely for such purpose. I f t he am ount becom es an issue, as in t he case at bar, t he t rial court m ust m ake a det erm inat ion of t he fact s.” ) . At t his j unct ure, t he court will require t he plaint iff t o file a second- am ended com plaint denom inat ing her dam ages and t o subm it evidence about t he claim ed m onet ary loss t o t he plaint iff’s herb garden and t ruffle grove. Preferably, t his evidence would be an affidavit t hat affirm at ively shows t he affiant has personal knowledge about t he plaint iff’s herb garden and her whit e t ruffle grove and is com pet ent t o t est ify about t he m onet ary value of her herb garden and her organic whit e t ruffle grove. This evidence will be considered in det erm ining whet her it is not legally cert ain t he am ount in cont roversy here is less t han t he j urisdict ional requirem ent of $75,000. The plaint iff shall have t hirt y days t o subm it her second am ended com plaint and t his evidence. Wit hout such evidence, t he court will proceed wit h dism issing t his act ion for lack of j urisdict ion. The court is m indful t hat t he Cit y defendant s have m ade a separat e j urisdict ional challenge assert ing t he plaint iff’s organic whit e t ruffle 11 grove is not part of her claim against t he Cit y. Nonet heless, if t he plaint iff could recover over $75,000 from a single defendant , t hen original j urisdict ion is proper and supplem ent al j urisdict ion m ay be properly exercised over ot her relat ed claim s and defendant s pursuant t o 28 U.S.C. § 1367( a) . See World Fuel Services, I nc. v. Nam be Pueblo Developm ent Corporat ion, 362 F.Supp.3d 1021, 1066 ( D.N.M. 2019) , appeal filed, ( 10t h Cir. Mar. 6, 2019) ; Helena Chem ical Com pany v. Holt haus, 2018 WL 623593, at * 2 ( D. Kan. Jan. 29, 2018) . Because t he plaint iff’s claim s against t he individual defendant s include t heir baseless com plaint s t o t he Cit y which t riggered t he m unicipal inspect ion and proceedings, and because t he plaint iff also claim s t he Cit y failed t o act on her pet it ion opposing t he Pierce’s go- cart rally, t he court finds t he claim s arise from a com m on nucleus of operat ive fact . See Unit ed Mine Workers of Am . v. Gibbs, 383 U.S. 715, 725 ( 1966) . Pr e lim in a r y I n j u n ct ion Ext ended proceedings over t he det erm inat ion of foreign cit izenship and t he lack of perm anent residence delayed service upon t he defendant s. I n t he m eant im e, plaint iff sought a t em porary rest raining order ( “ TRO” ) . Her init ial TRO request was denied for failure t o com ply wit h t he st rict procedural requirem ent s for t his ext raordinary relief. ECF# 28, pp. 23. The plaint iff t hen filed a separat e TRO m ot ion seeking an order rest raining t he defendant s from dem olishing her hom e and from cont inuing t o expose her backyard t o runoff t hat cont ains chem icals harm ful t o her “ rare whit e 12 t ruffle grove.” ECF# 30. To her m ot ion, t he plaint iff at t ached a proposed order arguing addit ional issues and fact s. ECF# 30- 1. This TRO m ot ion was denied for failure t o m ake t he t hreshold showing. ECF# 31. The plaint iff t hen filed a m ot ion and am ended m ot ion t o reconsider t his order. ECF# # 32 and 33. The court denied t hese m ot ions wit hout prej udice t o t he plaint iff “ pursuing a proper m ot ion for prelim inary inj unct ion filed wit h not ice t o t he defendant s.” ECF# 35, pp. 3- 4. The plaint iff now m oves for a prelim inary inj unct ion repeat ing her TRO argum ent s and supplem ent ing t hem wit h addit ional allegat ions. ECF# # 46 and 51. She adds t hat t here is no ot her place t o keep her personal propert y now st ored in t he house which t he Cit y has ordered for dem olit ion. She longer no resides in t he house because her neighborhood has becom e “ unbearably host ile.” ECF# 51, p. 7. Unable t o live in her house is em ot ionally dist ressing t o her. She cannot rem ove t he 1200 square yards of her whit e t ruffle grove. Her pet French Angora Rabbit s were recent ly killed. She seeks inj unct ive relief “ t o prevent t he dem olit ion of her hom e,” t he loss of her personal propert y, and “ t he ongoing cont am inat ion of her backyard,” all of which she argues would be irreparable harm t o her propert y. ECF# 46, p. 6. The Cit y’s order for t he rem oval of her hom e as unsafe and dangerous is allegedly “ based on a fraudulent inspect ion descript ion and does not reflect t he real sit uat ion of her house” which “ is safe and livable.” I d. She specifically disput es seven aspect s of t hat report 13 as erroneous and incom plet e st at em ent s of her propert y’s current , livable condit ion. She blam es t he cont am inat ed runoff from Pierce’s backyard on his rem oval of soil and assert s t he runoff can be st opped if he replaces t he soil. She denies t hat m onet ary dam ages would be an adequat e rem edy, because t he am ount of her dam ages “ is difficult t o det erm ine” and t he nat ure of t hose dam ages is “ irreparable.” ECF# 46. p. 11. The balance of harm accordingly favors her because t he defendant s are not harm ed by her keeping t he house and m anaging her propert y. The Cit y defendant s and Pierce oppose such relief and argue as follows. ECF# # 48 and 50. The plaint iff lacks clear proof t hat t he public int erest was not served by t he Cit y Council’s finding and order for t he dest ruct ion of her house as unsafe or dangerous. The balance of equit ies does not favor t he plaint iff as she did not seek an ext ension of t im e from t he Cit y of Mankat o and did not appeal t he Cit y’s resolut ion t o st at e dist rict court under K.S.A. 60- 2101( d) and Mankat o Cit y Ordinance 4- 613. The Cit y was fulfilling it s st at ut ory dut y in passing t he resolut ion. The plaint iff is unable t o show a likelihood of success on t he m erit s as she failed t o appeal t he Cit y’s resolut ion and her allegat ions are lacking. As for t he irreparable harm , t he Cit y defendant s point t o t he plaint iff’s new residence and t he lack of em ergency circum st ances t o keep her from rem oving and st oring her personal propert y elsewhere. The defendant Pierce j oins t he Cit y defendant s’ posit ions and separat ely argues t hat t he plaint iff’s request t o have him 14 m odify his propert y is affirm at ive relief inappropriat e for a prelim inary inj unct ion. He denies having m ade any changes t o his land’s t opography t hat cont ribut ed t o t he nat ural runoff of wat er from his land. While denying t hat he m ade a go- cart t rack in his backyard, Pierce adm it s riding go- cart s wit h friends but assert s he “ does not int end t o cont inue t o use t he propert y in t his way.” ECF# 50, p. 3. He also explains t hat no significant changes t o his backyard were m ade for t he go- cart s. “ [ T] he lim it ed purpose of a prelim inary inj unct ion ‘is m erely t o preserve t he relat ive posit ions of t he part ies unt il a t rial on t he m erit s can be held.’” Schrier v. Universit y of Co., 427 F.3d 1253, 1258 ( 10t h Cir. 2005) ( quot ing Univ. of Tex. v. Cam enisch, 451 U.S. 390, 395 ( 1981) ) . The st andards governing t he plaint iff’s m ot ion are: To obt ain a prelim inary inj unct ion, t he m oving part y m ust dem onst rat e four fact ors: ( 1) a likelihood of success on t he m erit s; ( 2) a likelihood t hat t he m ovant will suffer irreparable harm in t he absence of prelim inary relief; ( 3) t hat t he balance of equit ies t ips in t he m ovant 's favor; and ( 4) t hat t he inj unct ion is in t he public int erest . Wint er v. Nat ural Res. Def. Council, I nc., 555 U.S. 7, 129 S.Ct . 365, 374, 172 L.Ed.2d 249 ( 2008) ; see also O Cent ro [ Expirit a Beneficient e Uniao Do Veget al v. Ashcroft ] , 342 F.3d [ 1170] at 1177 [ ( 10t h Cir. 20030] . Because t he prim ary goal of a prelim inary inj unct ion is t o preserve t he pre- t rial st at us quo, court s should be especially caut ious when grant ing an inj unct ion t hat requires t he nonm oving part y t o t ake affirm at ive act ion—a m andat ory prelim inary inj unct ion—before a t rial on t he m erit s occurs. O Cent ro, 389 F.3d at 977. RoDa Drilling Co. v. Siegal, 552 F.3d 1203, 1208–09 ( 10t h Cir. 2009) ( foot not e om it t ed) . I t is t he m ovant ’s burden t o est ablish each of t hese fact ors. Heidem an v. S. Salt Lake Cit y, 348 F.3d 1182, 1188–89 ( 10t h Cir. 15 2003) ( cit at ion om it t ed) . “ I f t he plaint iff can est ablish t hat t he lat t er t hree requirem ent s t ip st rongly in his favor, t he t est is m odified, and t he plaint iff m ay m eet t he requirem ent for showing success on t he m erit s by showing t hat quest ions going t o t he m erit s are so serious, subst ant ial, difficult , and doubt ful as t o m ake t he issue ripe for lit igat ion and deserving of m ore deliberat e invest igat ion.” Great er Yellowst one Coalit ion v. Flowers, 321 F.3d 1250, 1255–56 ( 10t h Cir. 2003) ( int ernal quot at ion m arks and cit at ion om it t ed) ., “ Because a prelim inary inj unct ion is an ext raordinary rem edy, t he m ovant ’s right t o relief m ust be clear and unequivocal.” Diné Cit izens Against Ruining Our Environm ent v. Jewell, 839 F.3d 1276, 1281 ( 10t h Cir. 2016) ( cit at ion om it t ed) . As explained in RoDa Drilling Co., court s are especially caut ious in grant ing prelim inary inj unct ions t hat would alt er t he st at us quo, would require t he nonm oving part y t o t ake affirm at ive act ion, or would give t he m ovant all t he relief obt ainable from prevailing in a full t rial. 552 F.3d at 1208. The plaint iff’s inj unct ion request against t he defendant Pierce would require him t o t ake affirm at ive act ion. 552 F.3d at 1209. To prevail on a request for a disfavored inj unct ion, t he “ m ovant m ust dem onst rat e a subst ant ial likelihood of success on t he m erit s, in addit ion t o t he ot her elem ent s.” Roda Drilling Co., 552 F.3d at 1208 n.3. The court concurs wit h t he Cit y defendant s t hat t he plaint iff cannot show t he public int erest is served by enj oining t he Cit y from fulfilling it s st at ut ory dut y t o prot ect t he public from unsafe and dangerous 16 st ruct ures. The plaint iff’s allegat ions and proof t o t he cont rary fall short of t he clear and unequivocal st andard. What she has present ed in argum ent and as exhibit s fails t o dem onst rat e unequivocally t hat t he Cit y’s resolut ion does not serve t he public int erest em bodied in t he Cit y’s st at ut ory dut ies it perform ed. The balance of equit ies also does not favor t he plaint iff in t hat she has failed t o pursue and exhaust her st at e law rem edy of direct j udicial review of t he Cit y resolut ion. “ To const it ut e irreparable harm , an inj ury m ust be cert ain, great , act ual and not t heoret ical.” Heidem an, 348 F.3d at 1189 ( int ernal quot at ion m arks om it t ed) . The plaint iff “ m ust est ablish bot h t hat harm will occur, and t hat , when it does, such harm will be irreparable.” Vega v. Wiley, 259 Fed. Appx. 104, 106 ( 10t h Cir. 2007) , cert . denied, 553 U.S. 1012 ( 2008) . “ A plaint iff suffers irreparable inj ury when t he court would be unable t o grant an effect ive m onet ary rem edy aft er a full t rial because such dam ages would be inadequat e or difficult t o ascert ain.” Dom inion Video Sat ellit e, I nc. v. EchoSt ar Sat ellit e Corp., 269 F.3d 1149, 1156 ( 10t h Cir. 2001) ( cit at ion om it t ed) . The court finds it is reasonable from t he record t o hold t he plaint iff responsible for rem oving any unique personal propert y from t he fire- dam aged st ruct ure before it s dest ruct ion and for t aking reasonable m easures t o prot ect her t ruffle grove during dest ruct ion of t he st ruct ure. I n any event , t here is not hing here t o suggest t hat m onet ary dam ages would be an inadequat e rem edy for t he t aking of propert y in t hese circum st ances. Finally, for reasons discussed in it s prior order denying a 17 TRO, t he plaint iff has not shown a likelihood of success on t he m erit s in it s act ion against t he Cit y defendant s. This court is not sit t ing in j udicial review of t he m unicipalit y’s proceedings, and t he plaint iff has yet t o allege a viable const it ut ional right claim . The plaint iff’s inj unct ion request against t he defendant Pierce is a disfavored m andat ory inj unct ion t hat requires t he plaint iff “ t o m ake a height ened showing of t he four fact ors.” RoDa Drilling Co., 552 F.3d at 1209 ( cit at ion om it t ed) ; see also Fundam ent alist Church of Jesus Christ of Lat t er– Day Saint s v. Horne, 698 F.3d 1295, 1301 ( 10t h Cir. 2012) ( t he m ovant m ust show t hat t he fact ors “ weigh heavily and com pellingly” in his or her favor) . The plaint iff’s filings dem onst rat e she cannot m ake t his height ened showing. The plaint iff’s allegat ions and evidence fail t o show clearly and equivocally t hat t he defendant Pierce has m odified his land as t o cause or increase runoff t o her backyard and t hat t he plaint iff cannot prot ect her t ruffle grove from t his addit ional runoff wit hout Pierce now changing his own propert y’s t opography. “ The purpose of a prelim inary inj unct ion is not t o rem edy past harm but t o prot ect plaint iffs from irreparable inj ury t hat will su r e ly r e su lt wit hout t heir issuance.” Schrier v. Universit y of Co., 427 F.3d at 1267 ( cit at ion om it t ed) ( em phasis added) . “ [ S] im ple econom ic loss usually does not , in and of it self, const it ut e irreparable harm ; such losses are com pensable by m onet ary dam ages.” Heidem an, 348 F.3d at 1189. There is no evidence t hat m onet ary dam ages would be an inadequat e rem edy here. 18 The court sum m arily denies t he plaint iff’s request for a prelim inary inj unct ion against t he defendant Pierce. M ot ion s t o D ism iss Rule 8( a) ( 2) of t he Federal of Civil Procedure requires a com plaint t o cont ain “ a short and plain st at em ent of t he claim showing t hat t he pleader is ent it led t o relief.” Alt hough t his rule “ does not require ‘det ailed fact ual allegat ions,’” it dem ands m ore t han “ [ a] pleading t hat offers ‘labels and conclusions.’” Ashcroft v. I qbal, 556 U.S. 662, 678, 129 S.Ct . 1937, 173 L.Ed.2d 868 ( 2009) ( quot ing Bell At l. Corp. v. Tw om bly, 550 U.S. 544, 555, 127 S.Ct . 1955, 167 L.Ed.2d 929 ( 2007) ) . To survive a Rule 12( b) ( 6) m ot ion t o dism iss under Rule 12( b) ( 6) , t he pleading “ m ust cont ain sufficient fact ual m at t er, accept ed as t rue, t o ‘st at e a claim for relief t hat is plausible on it s face.’” I d. at 679 ( quot ing Twom bly, 550 U.S. at 570) . “ A claim has facial plausibilit y when t he plaint iff pleads fact ual cont ent t hat allows t he court t o draw t he reasonable inference t hat t he defendant is liable for t he m isconduct alleged.” I d. at 678 ( cit ing Twom bly, 550 U.S. at 556) . “ The plausibilit y st andard is not akin t o a ‘probabilit y requirem ent ,’ but it asks for m ore t han a sheer possibilit y t hat a defendant has act ed unlawfully.” I d. ( quot ing Twom bly, 550 U.S. at 556) . A det erm inat ion of plausibilit y binds t he court int o assum ing t he t rut h of fact ual allegat ions but not legal conclusions. I d. at 678. “ ‘Threadbare recit als of t he elem ent s of a cause of act ion, support ed by m ere conclusory st at em ent s, do not suffice’” t o st at e a claim for relief. Bixler 19 v. Fost er, 596 F.3d 751, 756 ( 10t h Cir. 2010) ( quot ing I qbal, 556 U.S. at 678, 129 S.Ct . 1937) . Also, t he com plaint ’s “ [ f] act ual allegat ions m ust be enough t o raise a right t o relief above t he speculat ive level.” Twom bly, 550 U.S. at 555. Wit h respect t o t he defendant Pierce, t he plaint iff’s am ended com plaint and her original com plaint are deficient . They do not provide m uch m ore t han conclusions and labels. They lack fact ual allegat ions showing t he individual defendant s’ st at em ent s and act ions for which t hey are allegedly liable. The fact ual allegat ions t hat are m ade lack cont ent as t o what happened, when it happened, who did it , and what harm or loss was sust ained. The allegat ions do not support drawing reasonable inferences of liabilit y on claim s for t respass, nuisance, or civil conspiracy. The court will grant t he plaint iff leave t o file a second am ended com plaint no lat er t han t hirt y days from t his order. The plaint iff shall plead sufficient fact ual cont ent m at ching up wit h t he legal elem ent s for t respass, nuisance, ( Unit ed Prot eins, I nc. v. Farm land I ndust ries, I nc., 259 Kan. 725, 915 P.2d 90 ( 1996) ) , and/ or civil conspiracy ( St oldt v. Cit y of Toront o, 234 Kan. 957, 678 P.2d 153 ( 1984) ) . I f t he plaint iff finds she is unable t o do so, t hen she should not pursue such claim s in her second am ended com plaint . The plaint iff shall plead expressly a ll allegat ions and claim s from her original and first am ended com plaint and include t hose addit ional allegat ions t o cure t he pleading deficiencies discussed in t his order. 20 The defendant Cit y argues t he court lacks j urisdict ion of plaint iff’s claim t hat challenges t he Cit y’s resolut ion ordering t he rem oval of t he unsafe st ruct ure from her propert y, because t he plaint iff did not t im ely appeal t he Cit y Council’s decision wit hin t hirt y- day period of K.S.A. 602101( d) . The defendant Cit y does not offer proof of t he plaint iff’s failure t o appeal. The plaint iff does not respond t o t his argum ent . Nonet heless, t he court recognizes t he Cit y correct ly argues t hat Cit y Council’s proceedings and resolut ion were act ions t aken in a quasi- j udicial capacit y. Dahl v. Cit y of Shawnee, 130 P.3d 1247, 2006 WL 851232, at * 11 ( Kan. Ct . App. Mar. 31, 2006) ( Table) . The rule in Kansas is t hat a plaint iff’s failure t o com ply wit h K.S.A. § 60- 2101( d) by appealing t he Cit y Council’s resolut ion t o st at e dist rict court “ ’prohibit s a collat eral act ion by an independent act ion.’” I d.( quot ing Schulze v. Board of Educat ion, 221 Kan. 351, 355, 559 P.2d 367 ( 177) , superseded by st at ut e on ot her grounds, U.S.D. No. 380 v. McMillen, 252 Kan. 451, 845 P.2d 676 ( 1993) ) . Failure “ t o perfect her appeal in t he m anner required by st at ut e” leaves a court “ wit hout j urisdict ion t o consider a collat eral at t ack on t he . . . [ Cit y’s quasi- j udicial decision] by an independent or original act ion.” I d. ( quot ing Francis v. Unified School Dist . No. 457, 19 Kan. App. 2d 476, 481, 671 P.2d 1297, rev. denied, 255 Kan. 1001 ( 1994) . Nonet heless, “ K.S.A. § 60- 2101( d) does not provide t he exclusive avenue of relief for” claim s under 42 U.S.C. § 1983. See Vannahm en v. Dodge Cit y Com m unit y College, 2018 WL 6324910, at * 5, * 9. 21 ( D. Kan. Dec. 4, 2018) . The court denies dism issal on t his ground but wit hout prej udice t o it s renewal upon proof regarding t he st at e proceedings and upon receipt of t he plaint iff’s second- am ended com plaint . The plaint iff’s claim s against t he Cit y defendant s in t he am ended com plaint and t he original com plaint are also deficient in cont ent . They random ly allege conclusions and labels and lack t he fact ual allegat ions t o show a plausible basis for liabilit y. Pursuant t o Fed. R. Civ. P. 9( b) , when “ alleging fraud or m ist ake, a part y m ust st at e wit h part icularit y t he circum st ances const it ut ing fraud.” “ [ A] com plaint alleging fraud . . . [ m ust ] set fort h t he t im e, place and cont ent s of t he false represent at ion, t he ident it y of t he part y m aking t he false st at em ent s and t he consequences t hereof.” Koch v. Koch I ndus., I nc., 203 F.3d 1202, 1236 ( 10t h Cir.) ( int ernal quot at ion m arks and cit at ion om it t ed) , cert . denied, 531 U.S. 926 ( 2000) . The court gives t he plaint iff leave t o file a second am ended com plaint no lat er t han t hirt y days from t his order. The plaint iff shall plead sufficient fact ual cont ent m at ching up wit h t he legal elem ent s for any st at e or federal claim for relief. The plaint iff shall plead expressly a ll allegat ions and claim s from her original and first - am ended com plaint and include t hose addit ional allegat ions t o cure t he pleading deficiencies discussed in t his order. I T I S THEREFORE ORDERED t hat t he defendant Mat t hew Pierce’s m ot ion t o dism iss pursuant t o Fed. R. Civ. P. 12( b) ( 1) , ( 4) and ( 6) , ( ECF# 42) and t he Cit y defendant s’ m ot ion t o dism iss pursuant t o Fed. R. Civ. P. 22 12( b) ( 1) ,( 3) and ( 6) ( ECF# 44) are grant ed insofar as t he plaint iff shall have t hirt y days t o file her second- am ended com plaint and t he evidence necessary t o est ablish t he am ount in cont roversy or face dism issal of t he act ion, and t he m ot ions are ot herwise denied but wit hout prej udice t o renewed argum ent s for dism issal aft er t he plaint iff’s filings; and I T I S FURTHER ORDERED t hat t he plaint iff’s m ot ion for prelim inary inj unct ion ( ECF# 46) is denied. Dat ed t his 7t h day of June, 2019, Topeka, Kansas. s/ Sam A. Crow Sam A. Crow, U.S. Dist rict Senior Judge 23
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