Lenhardt v. City of Mankato

          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 ...