United States District Court, D. Kansas
MEMORANDUM AND ORDER
SAM A.
CROW, U.S. DISTRICT SENIOR JUDGE
The
case comes before the court on the motion to dismiss pursuant
to Fed.R.Civ.P. 12(b)(1), (4) and (6) filed by the defendant
Matthew Pierce (ECF# 42); the motion to dismiss pursuant to
Fed.R.Civ.P. 12(b)(1), (3) and (6) filed by the defendants
City of Mankato and Chris Rhea (“City
defendants”) (ECF# 44), the plaintiff's motion for
preliminary injunction (ECF# 46)[1], and the plaintiff's
supplemental pleading in support of her preliminary
injunction motion (ECF# 51)[2]. The court takes up these matters
in the following order, the defendants' jurisdictional
challenge, the plaintiff's motion for preliminary
injunction, and the balance of the defendants' arguments
for dismissal. As the defendants discuss in their filings,
the plaintiff's pro se filings are ambiguous, rambling,
and confusing. This order is intended to improve the
situation.
Amended
Complaint (ECF# 20)
The
court is mindful that a “pro se litigant's
pleadings are to be construed liberally and held to a less
stringent standard than formal pleadings drafted by
lawyers.” Hall v. Bellmon, 935 F.2d 1106, 1110
(10th Cir.1991). Still, a pro se party is expected to follow
the same rules of procedure as any other litigant. See
Green v. Dorrell, 969 F.2d 915, 917 (10th Cir. 1992),
cert. denied, 507 U.S. 940 (1993). Under
Fed.R.Civ.P. 8(a), the complaint itself must include enough
facts to give the defendants fair notice of the grounds upon
which the plaintiff's claims rest. Conley v.
Gibson, 355 U.S. 41, 77, 78 S.Ct. 99, 103 (1957).
Plaintiff's pro se status does not exempt her from
compliance with this minimal pleading requirement.
“This is so because a pro se plaintiff requires no
special legal training to recount the facts surrounding his
alleged injury, and he must provide such facts if the court
is to determine whether he makes out a claim on which relief
can be granted.” Hall, 935 F.2d at 1109. It is
not the proper role of the district court to act as an
“advocate for the pro se litigant.” Hall v.
Bellmon, 935 F.2d at 1110. Therefore, the court does not
“supply additional factual allegations to round out a
plaintiff's complaint.” Whitney v. State of New
Mexico, 113 F .3d 1170, 1173-74 (10th Cir.1997).
At the
outset, the general rule is that an “amended complaint
supersedes the original complaint and renders the original
complaint of no legal effect.” Franklin v. Kansas
Dept. of Corrections, 160 Fed.Appx. 730, *733-734, 2005
WL 3515716 at *1 (10th Cir. 2005) (citing Miller v.
Glanz, 948 F.2d 1562, 1565 (10th Cir. 1991)), cert.
denied, 549 U.S. 1219 (2007); see Davis v. TXO
Production Corp., 929 F.2d 1515, 1517 (10th Cir.1991)
(“[i]t is well established that an amended complaint
ordinarily supersedes the original and renders it of no legal
effect”) (internal quotations marks and citations
omitted)). Under Federal Rule of Civil Procedure 10,
“[a] statement in a pleading may be adopted by
reference elsewhere ... in any other pleading or
motion.” Fed.R.Civ.P. 10(c). The plaintiff's
amended complaint fails to clearly and specifically
reference, adopt or incorporate the original complaint. There
are, however, indications in the amended complaint that the
plaintiff believed she was simply adding
“further” allegations, facts and exhibits to cure
deficiencies in the jurisdictional allegations, to support
her prior alleged claims, and to support a new claim for
injunctive relief. ECF# 20, p. 1. The court's order that
identified the plaintiff's need for filing an amended
complaint failed to caution that her amended complaint also
should include all her claims and
allegations. The court will give the plaintiff another
opportunity to amend her complaint in response to this
court's order addressing the pending motions to dismiss.
The plaintiff shall include all allegations
and claims which she wants incorporated from her original
complaint and which she adds to cure the pleading
deficiencies noted in this order. The defendants are only
minimally prejudiced by this approach, because the court will
still address their pending motions to dismiss and because
the plaintiff's amended complaint largely echoes the
central allegations found in her original complaint.
In both
her complaints, the plaintiff names the following defendants:
City Council of Mankato, City Administrator Chris Rhea, and
her neighboring landowners, Edward Hood, Matthew Pierce, and
Paul Bohnert. In her original complaint, the plaintiff listed
“torts to the land” and identified nuisance and
trespassing by her neighbors, Pierce and Hood, who held
“an unpermitted go-cart-rally in their backyard”
for “five hours” on July 28, 2018. ECF# 1, p. 3
and ECF# 1.1, p. 5. She alleges that prior to the rally she
submitted a petition to the City opposing the location of the
go-cart rally. She alleges the emissions from this rally were
“highly toxic waste” (ECF# 20, p. 17) and damaged
her valuable organic herbs and a rare white truffle grove in
her backyard. In her amended complaint, the plaintiff
summarily references “trespasses” by Hood and
Pierce in 2016 and in 2017 to damage her “herbal
field.” ECF# 20, p. 5. The plaintiff includes in her
amended complaint that her three neighbors (Hood, Pierce and
Bohnert) combined to harass her into selling her property by
jointly signing repeated complaints to the City about the
condition of her property. The plaintiff alleges the
defendants' trespasses (go-cart rally and run-off)
“contaminated, thereby ruined . . . [her] “entire
backyard already.” ECF# 20, p. 15. She asserts the
“defendants extensively brought out pesticide on their
property for the past years and these additional chemicals .
. . [have] washed into plaintiff's rare white truffle
grove . . . thereby ruining the mushroom crop
completely.” ECF# 20, p. 18. In her original complaint,
the plaintiff set out damages of $10, 000 for one-year's
loss of the herbal crop, $300, 000 for one-year's loss of
a mushroom harvest (plus the loss for the next ten to twenty
years based on producing 100 pounds of truffles annually),
and $350 in lab report costs for analysis of her backyard
soil. ECF# 1, p.4. She also alleges as loss in her amended
complaint the restoration or “purification” of
her contaminated backyard soil.
Against
the City defendants, the plaintiff claims they failed to
prevent her backyard's contamination when they refused to
stop the go-cart rally. They acted on the other
defendants' baseless complaints about her home's
condition. They forced an inspection of her property and then
fraudulently described the condition of her home. She
petitioned the City to stop the go-cart rally and to forego
the inspection of property and any subsequent City proceeding
to find her property unsafe and dangerous. Her petition
accused the complainants of trying to take away her property
and of abusing the existing regulation. ECF# 1-1. She alleges
the defendant City Council wrongly relied on this
“fraudulent” inspection report rather than her
evidence in concluding that the plaintiff's home was
unsafe and should be demolished. The plaintiff seeks to
enjoin the City from proceeding with the demolition and to
enjoin the other defendants from continuing to damage her
property.
Jurisdictional
Challenge--Amount in Controversy
Early
in this case, Magistrate Judge Gale filed a report and
recommendation to dismiss the action, in part, because
“Plaintiff, who resides in Kansas, has failed to
establish diversity jurisdiction as to the named Defendants,
all of whom are residents of Kansas also.” ECF# 6, p.
9. When it became apparent that the plaintiff was not a
citizen of this country and that the plaintiff may not be
lawfully admitted as a permanent resident, the court required
the plaintiff to offer additional allegations and evidence in
support of diversity jurisdiction under 28 U.S.C. §
1332(a)(2). ECF# 23. The court eventually accepted the
plaintiff's amended complaint, as supplemented by
additional exhibits, ECF## 24-26, “as a showing of
diversity jurisdiction to justify the magistrate judge moving
forward with the case.” ECF# 28, p. 2. Before now,
neither the magistrate judge nor this court has evaluated the
reasonableness of the plaintiff's damage allegations for
purposes of determining the amount in controversy
requirement.
Both
pending motions to dismiss challenge the court's
diversity jurisdiction due to the plaintiff's failure to
allege a specific amount in controversy in her amended
complaint. The defendants also argue the plaintiff cannot
allege this threshold amount as her entire property's
appraised value for property tax purposes is $3, 230. The
defendant Pierce also challenges the plaintiff's
valuation of her truffle grove as factually unreasonable and
lacking in evidence.
By
statute, a federal district court has original jurisdiction
“where the matter in controversy exceeds the sum or
value of $75, 000 . . . and is between . . . citizens of a
State and citizens or subjects of a foreign state.” 28
U.S.C. § 1332(a)(2). A Rule 12(b)(1) motion seeking
dismissal for lack of subject matter jurisdiction pursues
either a facial attack or a factual attack. Paper,
Allied-Industrial, Chemical and Energy Workers Intern. Union
v. Continental Carbon Co., 428 F.3d 1285, 1292 (10th
Cir. 2005). A facial attack challenges the sufficiency of the
complaint's allegations, and the court accepts those
allegations as true. Holt v. United States, 46 F.3d
1000, 1002 (10th Cir. 1995). A factual attack puts the
allegations in dispute, and the court “may not presume
the truthfulness of the complaint's factual
allegations.” Id. at 1003 (citation omitted).
In making its own findings, the court “has wide
discretion to allow affidavits, other documents, and a
limited evidentiary hearing to resolve disputed
jurisdictional facts under Rule 12(b)(1).” Id.
A court need not convert a Rule 12(b)(1) motion to a Rule 56
motion unless “resolution of the jurisdictional
question is intertwined with the merits of the case.”
Id. “Because the jurisdiction of federal
courts is limited, there is a presumption against our
jurisdiction, and the party invoking federal jurisdiction
bears the burden of proof.” Marcus v. Kansas
Dep't of Revenue, 170 F.3d 1305, 1309 (10th Cir.
1999) (internal quotation marks and citation omitted).
The
defendants appear to mount a factual challenge which is not
intertwined with the merits of the case. Thus, evidence
outside of the pleadings may be considered without converting
the motion to a Rule 56 motion. Holt, 46 F.3d at
1003. The plaintiff has not submitted evidence showing her
losses exceed $75, 000.
The
Tenth Circuit analyzes a factual attack on the amount in
controversy question in this way:
“When federal subject matter jurisdiction is challenged
based on the amount in controversy requirement, the
plaintiffs must show that it does not appear to a legal
certainty that they cannot recover” the jurisdiction
amount. Id. [Watson v. Blankinship, 20 F.3d
383, 386 (10th Cir. 1994)]). Thus, Woodmen, not Sanchez, has
the burden of establishing jurisdiction. Woodmen can meet
this burden by demonstrating that it is not legally certain
that the claim is less ...