Anr Pipeline Co. v. Lafaver, 96-1089-JTM.

• Decision Date: 09 November 1999
• Docket Number: No. 96-1089-JTM.,96-1089-JTM.
• Citation: 76 F.Supp.2d 1142
• Parties: ANR PIPELINE COMPANY, et al., Plaintiffs, v. John D. LAFAVER, et al., Defendants.
• Court: U.S. District Court — District of Kansas

76 F.Supp.2d 1142

ANR PIPELINE COMPANY, et al., Plaintiffs, v. John D. LAFAVER, et al., Defendants.

No. 96-1089-JTM.

United States District Court, D. Kansas.

November 9, 1999.

Richard D. Greene, Morris, Laing, Evans, Brock & Kennedy, Chtd., Wichita, KS, Karen L. Pauley, Rebecca H. Noecker, Colorado Interstate Gas Co., Colorado Springs, CO, for Plaintiffs.

Kevin M. Hill, Finley, Miller, Cashman, Weingart, Schmitt & Hill, Hiawatha, KS, Allen G. Glendenning, Richard L. Friedeman, Watkins, Calcara, Rondeau, Friedeman, Bleeker, Glendenning & McVay, Chtd., Great Bend, KS, Keith D. Hoffman, Abilene, KS, Robert G. Frey, Ozawkie, KS, Gordon B. Stull, Stull & Rein, Pratt, KS, Nicholas S. Daily, Depew and Gillen, L.L.C., Wichita, KS, J. Richard Lake, Holton, KS, Daniel H. Diepenbrock, Miller & Diepenbrock, P.A., Liberal, K.S, for Defendants.

MEMORANDUM ORDER

MARTEN, District Judge.

Plaintiffs ANR Pipeline Company and Colorado Interstate Gas Company brought the present action against various officers of the State of Kansas, as well as numerous Kansas counties and their officers. The pipelines complain that certain property tax exemptions were unfairly and unconstitutionally granted to railroads operating in Kansas, and that such exemptions were not granted to pipeline companies. On June 26, 1996, the court denied motions to dismiss submitted by the state defendants, which focused primarily on a claim of Eleventh Amendment immunity. Many of the county defendants joined in filing motions to dismiss, although these motions were not extensively briefed.

On July 21, 1998, the Tenth Circuit reversed the decision denying the state defendants' motion to dismiss. ANR Pipeline Co. v. Lafaver, 150 F.3d 1178 (10th Cir.1998), cert. denied, ___ U.S. ___, 119 S.Ct. 904, 142 L.Ed.2d 902 (1999). The court concluded that the doctrine of sovereign immunity barred the pipelines' claims against the state defendants. The county defendants did not participate in the appeal.

Following remand of the matter, the state defendants were dismissed from the action. (Dkt. No. 202) The matter is currently before the court on the renewed motion for dismissal of various county defendants. The court has reviewed the pleadings submitted by the parties, and finds, for the reasons stated herein, that dismissal is appropriate.¹

The history and underlying facts of the present action were set forth in detail in the earlier order of this court and in the order of the Tenth Circuit, and the court incorporates those findings herein. As to the factual contentions in the pleadings immediately before it, the court must note how, despite length of the briefs, those pleadings engage the matters stated by the other party very rarely. More particularly, the defendant counties have made a number of points, not previously made in the earlier round of briefing, which the pipeline plaintiffs have wholly failed to rebut. These include the opening section of the counties' brief in which they articulate various facts or statutory provisions in support of their contention that they, as counties, play no real role in the underlying complaint of the pipelines: that 80% of the railroad's property was exempted from valuation by the state. The plaintiffs in their response never articulate what particular powers of the counties were misused.

More important, in light of the findings below, is the evidence presented by the counties in relation to the proceedings before the state courts. A key theme of the pipelines' argument has been that the state court procedures were arbitrary and capricious in not allowing them to present their constitutional claims in CIG II and CIG III (to use the terminology relating to the state litigation, see 150 F.3d at 1183-85). The counties have produced copies of the appellate briefs submitted in those cases by the pipelines, which indicate that the pipelines did advance constitutional arguments — they just did so very briefly, in passing. Thus, rather than an unaccountable failure to address central, vital, constitutional arguments, the decisions in the state courts may be viewed as appropriate conclusions to arguments that were advanced in a peripheral and abbreviated manner. The plaintiff pipelines' response and surrebuttal do not controvert that such arguments were actually made.

Turning to the issues presented by the counties' motion, the first is the plaintiffs' invocation of the law of the case doctrine. The pipelines argue that the counties "cannot be heard" on the issues presented in their motion, since the court has already resolved those issues against the counties in its earlier order. (Surrep. at 2). To the extent that this suggests the law of the case doctrine somehow actually prohibits the court considering (or reconsidering) these issues, the court must find the pipelines construe the doctrine far too broadly.

Federal District Courts exercise broad authority to dispose of cases in stages. Decisions made by a district court during the course of litigation establish the law of the case. The law of the case doctrine does not, however, limit the court's power to reconsider or change its decision, it merely protects the ability of the court to build to its final judgment by cumulative rulings.

18 Moore's Federal Practice (3rd Ed.), § 134.22[1][a] at 134-49 (1999).

The Tenth Circuit has held that the law of the case doctrine means that "findings made at one point during litigation become the law of the case for subsequent stages of that same litigation." United States v. Webb, 98 F.3d 585, 586 (10th Cir.1996), cert. denied, 519 U.S. 1156, 117 S.Ct. 1097, 137 L.Ed.2d 229 (1997). "The law of the case `doctrine posits that when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case.'" United States v. Monsisvais, 946 F.2d 114, 115 (10th Cir.1991) (quoting Arizona v. California, 460 U.S. 605, 618, 103 S.Ct. 1382, 1391, 75 L.Ed.2d 318 (1983)). In Wilson v. Meeks, 98 F.3d 1247, 1250 (10th Cir.1996), qualified on other gds., Ensminger v. Terminix International, 102 F.3d 1571 (10th Cir.1996), the court wrote:

"The law of the case is a judicial doctrine designed to promote decisional finality. Once a court decides an issue, the doctrine comes into play to prevent the re-litigation of that issue in subsequent proceedings in the same cases." Pittsburg & Midway Coal Mining Co. v. Watchman, 52 F.3d 1531, 1536 n. 4 (10th Cir.1995) (citing Arizona v. California, 460 U.S. 605, 618-19, 103 S.Ct. 1382, 1391-92, 75 L.Ed.2d 318 (1983)). The doctrine is considered only a rule of practice and is not a limit on a court's power or authority. Id.

The court most recently addressed the issue in Wilson v. Merrell Dow Pharmaceuticals Inc., 160 F.3d 625, 628 (10th Cir. 1998). Plaintiffs argued that the trial court had erred in ruling that the plaintiffs had failed to provide adequate scientific proof that the defendant's product, Bendectin, caused their injuries. Plaintiffs argued this ruling was in error, since another judge (Judge Ellison who subsequently took senior status and transferred the matter) in the same case had denied summary judgment on the same issue. The Tenth Circuit ruled that the renewed summary judgment motion did not violate the law of the case doctrine, based upon additional rulings by the Ninth Circuit in the seminal Daubert case. The court held that "Judge Ellison could have, himself, reconsidered his earlier ruling in the light of subsequent appellate court decisions, including the opinion of the Ninth Circuit in Daubert after remand, and we see no reason why Judge Holmes could not reconsider the matter." 160 F.3d at 628.

Here, none of the county defendants appeared in the interlocutory appeal, none of their issues were presented, and the Tenth Circuit did not directly address any of their issues. Instead, the court simply decided that the state defendants were entitled to Eleventh Amendment immunity. Further, as noted earlier, the county defendants' earlier briefs on the initial motions to dismiss were extremely brief. The present motion to dismiss is the first instance in which the counties have argued extensively in this matter. The court finds that the law of the case doctrine does not bar consideration of the issues raised in the current motion to dismiss.

The first argument presented by the counties is that they, like the state defendants, are entitled to Eleventh Amendment immunity. The court must reject this argument. As a general rule municipalities and counties are not considered state actors for Eleventh Amendment purposes. The Tenth Circuit most recently addressed the issue in Robertson v. Morgan County, No. 97-1469, 1999 WL 17787, at *3-4 (10th Cir. January 6, 1999):

As a general rule, counties and political subdivisions of states are not entitled to Eleventh Amendment immunity. Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U.S. 391, 401, 99 S.Ct. 1171, 59 L.Ed.2d 401 (1979) (noting that the Court has "consistently refused to construe the Amendment to afford political protection to political subdivisions such as counties and municipalities, even though such entities exercise a `slice of state power'."); Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 280, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977) ("The bar of the Eleventh Amendment to suit in federal courts extends to States and state officials in appropriate circumstances, but does not extend to counties and similar municipal corporations.") (internal citations omitted; emphasis added); Elam Construction, Inc. v. Regional Transportation District, 129 F.3d 1343, 1345 (10th Cir.1997) (Eleventh Amendment immunity extends to entities created by state governments which operate as their alter egos or instrumentalities; it "does not ... extend to political subdivisions of the state, such as counties or municipalities."), cert. denied, 523 U.S. 1047, 118...