United States District Court, D. Kansas
MEMORANDUM AND ORDER
KATHRYN H. VRATIL United States District Judge.
matter is before the Court on BP Corporation North
America Inc.'s Rule 12(c) Motion For Judgment On The
Pleadings (Doc. #21) filed June 6, 2016 and BP's
oral motion to dismiss with prejudice under Rule 41(b),
Fed.R.Civ.P. Also before the Court are the City Of
Neodesha's Second Motion For Remand (Doc. #41) filed
April 28, 2017 and the City's oral motion to dismiss the
amended complaints without prejudice under Rule 41(a)(2),
Fed.R.Civ.P. For reasons set forth below, the Court sustains
in part defendant's motion for judgment on the pleadings,
dismisses plaintiff's claims with prejudice and overrules
plaintiff's motion to remand and motion to dismiss
Rule 12(c), Fed. R. Civ. P., a party may move for judgment on
the pleadings after the pleadings are closed as long as the
motion does not delay trial. Fed.R.Civ.P. 12(c). Judgment on
the pleadings is appropriate when “the moving party has
clearly established that no material issue of fact remains to
be resolved and the party is entitled to judgment as a matter
of law.” Sanders v. Mountain Am. Fed. Credit
Union, 689 F.3d 1138, 1141 (10th Cir. 2012). The
standard for dismissal under Rule 12(c) is the same as a
dismissal under Rule 12(b)(6), Fed. R. Civ. P.
Rule 12(b)(6), the Court assumes as true all well-pleaded
factual allegations and determines whether they plausibly
give rise to an entitlement of relief. Ashcroft v.
Iqbal, 556 U.S. 662, 679 (2009). To survive a motion to
dismiss, a complaint must contain sufficient factual matter
to state a claim which is plausible - and not merely
conceivable - on its face. Id. at 679-80; Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). In
determining whether it states a plausible claim for relief,
the Court draws on its judicial experience and common sense.
Iqbal, 556 U.S. at 679.
Court need not accept as true those allegations which state
only legal conclusions. See id.; Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). Plaintiff
bears the burden of framing its claim with enough factual
matter to suggest that it is entitled to relief; it is not
enough to make threadbare recitals of a cause of action
accompanied by conclusory statements. Twombly, 550
U.S. at 556. Plaintiff makes a facially plausible claim when
it pleads factual content from which the Court can reasonably
infer that defendants are liable for the misconduct alleged.
Iqbal, 556 U.S. at 678. Plaintiff must show more
than a sheer possibility that defendants have acted
unlawfully - it is not enough to plead facts that are
“merely consistent with” liability. Id.
(quoting Twombly, 550 U.S. at 557).
pleading which offers labels and conclusions, a formulaic
recitation of the elements of a cause of action, or naked
assertions devoid of further factual enhancement will not
stand. Iqbal, 556 U.S. at 678. Similarly, where the
well-pleaded facts do not permit the Court to infer more than
the mere possibility of misconduct, the complaint has alleged
- but has not “shown” - that the pleader is
entitled to relief. Id. at 679. The degree of
specificity necessary to establish plausibility and fair
notice depends on context, because what constitutes fair
notice under Rule 8(a)(2), Fed. R. Civ. P., depends on the
type of case. Robbins v. Oklahoma, 519 F.3d 1242,
1248 (10th Cir. 2008) (citing Phillips v. Cnty. of
Allegheny, 515 F.3d 224, 23-32 (3d Cir. 2008)).
December 19, 2014, the City filed 821complaints in Neodesha
Municipal Court, alleging that BP had violated newly revised
provisions of the Neodesha waste ordinance, Section 36-407 of
the Neodesha City Code. On January 27 and 28, 2015, BP
removed those cases to this Court. See Case Nos.
15-4025-KHV through 15-4844-KHV, and Case No. 15-4847-KHV
(Municipal Court Nos. 2014-1202, et
seq.). The City filed a motion to remand, arguing
that the Court lacked subject matter jurisdiction because the
cases were not “civil actions” that could be
removed under 28 U.S.C. §§ 1332 and 1441. BP
asserted that the complaints were civil in nature. The Court
agreed, and ruled that the alleged violations of revised
Neodesha Code § 36-407 were “civil actions”
for purposes of removal under Section 1441. See
Memorandum And Order (Doc. #69) filed March 31, 2016 in
Case No. 15-4014 (incorporated herein by reference).
April 19, 2016, as a matter of right, the City filed amended
complaints in each of the 821 cases. In answer to the amended
complaints, BP asserted six counterclaims. See Answer,
Affirmative Defenses And Counterclaims Of BP Corporation
North America Inc. To City Of Neodesha's First Amended
Complaints (Doc. #18) filed May 17, 2016.
6, 2016, BP filed a motion for judgment on the pleadings.
See BP Corporation North America Inc.'s Rule 12(c)
Motion For Judgment On The Pleadings On The City Of
Neodesha's Amended Complaints (Doc. #21). The City
responded on July 18, 2016, by filing a motion for leave to
file a consolidated second amended complaint. See
City's Motion For Leave To File Consolidated Second
Amended Complaint (Doc. #31).
March 16, 2017, the Court overruled the City's motion for
leave to file the consolidated second amended complaint.
See Memorandum And Order (Doc. #39). The Court noted
that the proposed second amended complaint sought only one
form of relief: punishment by a term of confinement in the
county jail for up to one month and/or a criminal fine not to
exceed $500. The Court observed that “the City [had]
cited no authority which would authorize this Court to order
defendants to pay punitive municipal fines or serve sentences
of confinement in a county jail.” Id. at 9. It
concluded that proposed second amended complaint was
factually plausible but only demanded relief which the Court
could not grant, and that the proposed amendment would be
April 28, 2017, the City filed a second motion to remand,
which seeks to capitalize on deficiencies in the amended
complaints which the Court had called into focus in ruling
that the proposed second amended complaint was futile because