United States District Court, D. Kansas
MEMORANDUM & ORDER
JOHN W. LUNGSTRUM, District Judge.
Plaintiffs Amy Hover, Brad Jordan and Gary Jordan filed suit under 42 U.S.C. § 1983 alleging that defendants violated their Fourth, Fifth and Fourteenth Amendment rights in connection with defendants' seizure and subsequent sale of plaintiffs' property to satisfy tax indebtedness of delinquent taxpayers. The seizure was executed by agents of the Kansas Department of Revenue (KDOR) and the Wyandotte County Sheriff's Department. This matter is presently before the court on a motion to dismiss filed by the KDOR defendants-KDOR agent Carrie Purney-Crider; KDOR's Secretary Nick Jordan; and KDOR's Director of Taxation Steve Stotts. Specifically, the KDOR defendants move to dismiss plaintiffs' amended complaint for lack of subject-matter jurisdiction and failure to state a claim upon which relief can be granted. As will be explained, the motion is granted in part and denied in part.
The KDOR defendants' motion to dismiss is based primarily on Federal Rule of Civil Procedure 12(b)(6). In analyzing that motion, the court accepts as true "all well-pleaded factual allegations in the complaint and view[s] them in the light most favorable to the plaintiff." Burnett v. Mortgage Elec. Registration Sys., Inc., 706 F.3d 1231, 1235 (10th Cir. 2013) (citation omitted). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007))). Consistent with this standard, the following well-pleaded allegations, taken from plaintiffs' amended complaint, are accepted as true for purposes of defendants' motion.
On September 18, 2012, the Kansas Department of Revenue issued a writ of execution to seize property owned by Emmett Jordan and his spouse Amy Jordan at their residence in Kansas City, Kansas to satisfy the tax liabilities of Emmett and Amy Jordan. The property to be seized pursuant to the writ included 22 vehicles and any other real or personal property owned by Emmett Jordan and Amy Jordan. The writ was executed by more than 80 agents, including defendant Carrie Purney-Crider and other unnamed agents of both the Kansas Department of Revenue and the Wyandotte County Sheriff's Department. Plaintiffs allege that the agents were all armed with automatic weapons and dressed in combat gear.
Plaintiff Gary Jordan was present on Emmett Jordan's property at the time the writ was executed. The amended complaint does not allege the relationship, if any, between Gary Jordan and Emmett or Amy Jordan. Plaintiff Gary Jordan, identified in the amended complaint as a "man in his 60s" was allegedly "shoved to the ground by officers while they pointed automatic weapons at him" and "was detained in a state car for more than two hours with no explanation of why he was being held." Plaintiffs Amy Hover and Brad Jordan were not present on the property at the time the writ was executed and the amended complaint does not allege the relationship between these plaintiffs and Emmett or Amy Jordan. According to the allegations in the amended complaint, items of personal property belonging to plaintiffs were seized and removed from Emmett Jordan's residence despite the fact that such property was not identified in the writ.
Upon learning that agents had seized their personal property, plaintiffs notified "defendants" via phone calls and letters that they claimed ownership of certain property that had been seized. Plaintiffs assert that they repeatedly requested that the Department of Revenue return their personal property but that the KDOR refused to return the items wrongfully seized and that a large portion of those items were sold at auction by the KDOR. On October 15, 2012, plaintiffs provided written notice to Ms. Purney-Crider, including proof of ownership, that many of the items seized in fact were owned by plaintiffs. Plaintiffs allege that the KDOR caused a trailer owned by plaintiff Amy Hover to be titled in KDOR's name despite notice that the trailer was owned by Ms. Hover and had been titled in her name. After learning that the KDOR intended to sell plaintiffs' property at auction, plaintiffs again provided notice to Ms. Purney-Crider that some of the items intended to be sold at auction were owned by plaintiffs. Plaintiffs allege that they received no response "from defendants" and the auction proceeded as scheduled. They further contend that defendant Nick Jordan, the Secretary of the KDOR, adopted and implemented policies, customs or practices that permitted employees to take property without lawful justification from innocent parties and to do so using excessive force when other more reasonable and less drastic methods are available. Plaintiffs further allege that Mr. Jordan failed to adequately train or supervise Ms. Purney-Crider. Other than a preliminary paragraph identifying defendant Steve Stotts as the Director of Taxation for the KDOR, there are no allegations in the amended complaint concerning Mr. Stotts.
In their amended complaint, all plaintiffs allege that the KDOR defendants violated their Fourth, Fifth and Fourteenth Amendment rights based on unlawful search and seizure and deprivation of property without due process or just compensation. In addition, plaintiff Gary Jordan asserts claims based on the use of excessive force and unlawful detention. The KDOR defendants move to dismiss all claims against them.
Subject Matter Jurisdiction
In their motion to dismiss, the KDOR defendants assert that the Eleventh Amendment prohibits this court from exercising subject matter jurisdiction over plaintiffs' claims. This argument is premised on defendants' related argument that plaintiffs have sued each of the KDOR defendants only in their official capacities such that dismissal is required in any event. See Will v. Michigan Dep't of State Police, 491 U.S. 58, 71 (1989). In support of this argument, defendants highlight that plaintiffs have expressly indicated that Mssrs. Jordan and Stotts have been named in their official capacities and that the court should presume that Ms. Purney-Crider is named in her official capacity. Plaintiffs, in response, seek permission to amend their complaint to include individual capacity claims against Mssrs. Jordan and Stotts (in addition to the official capacity claims) and to clarify, to the extent the court deems necessary, that they are asserting claims against Ms. Purney-Crider only in her individual capacity.
The court concludes that plaintiffs may amend their complaint to assert claims against defendants Jordan and Stotts in their individual capacities to the extent that such claims are consistent with the remaining aspects of the court's memorandum and order. In permitting that amendment, the court rejects defendants' contention that the amendment is barred by the statute of limitations and does not relate back to the amended complaint. Significantly, defendants do not dispute that the amendment arises out of the same occurrence as set forth in the amended complaint. They do not contend that they will be prejudiced in any respect by having to defend against individual-capacity claims. Finally, they do not dispute that they had sufficient notice of potential individual-capacity claims-a fact evidenced by defendants' assertion of a qualified immunity defense as well as the amended complaint's request for punitive damages. In other words, Mssrs. Jordan and Stotts have been on notice at all times that plaintiffs likely intended to assert claims against them in their individual capacities. See Sanders-Burns v. City of Plano, 594 F.3d 366, 377-78 (5th Cir. 2010) (amendment substituting individual capacity claim for official capacity claim satisfied Rule 15(c)(1)(C) where defendant had sufficient notice that claim would be brought in individual capacity and suffered no prejudice in preparing defense). For these reasons, the court will permit the amendment consistent with other admonitions in this memorandum and order. Because plaintiffs have not responded to the merits of defendants' arguments concerning the dismissal of the official capacity claims against Mssrs. Jordan and Stotts, those claims are dismissed.
Similarly, the court will permit plaintiffs to clarify that the claims asserted against defendant Purney-Crider are asserted only in her individual capacity, which should come as no surprise to Ms. Purney-Crider. She has asserted qualified immunity as a defense to the claims (indicating an awareness that she had been sued in her individual capacity) and the amended complaint seeks punitive damages based in part on her alleged conduct. Moreover, the amended complaint as it relates to Ms. Purney-Crider reads like an individual capacity suit. See id. While defendants urge that the claim should be deemed an official capacity claim because Ms. Purney-Crider was not served individually but only through the Kansas Department of Revenue, the court-regardless of how and whether Ms. Purney-Crider was served-will permit the clarification as indicated. In other words, even if the court were to conclude that plaintiffs have asserted only an official capacity suit against Ms. Purney-Crider, the court would nonetheless permit plaintiffs to amend their complaint at this juncture. Thus, regardless of whether the court permits a "clarification" or an "amendment, " plaintiffs may pursue claims against Ms. Purney-Crider in her individual capacity and may file an amended complaint to the extent it is consistent with the additional admonitions in this memorandum and order.
For the foregoing reasons, the court dismisses any official capacity claims against the KDOR defendants and will permit plaintiffs to clarify or amend their complaint to assert ...