Croy v. Ravalli Cnty.

Decision Date15 July 2020
Docket NumberCV 19-77-M-DWM
Citation472 F.Supp.3d 877
Parties Nicole L. CROY, et al., Plaintiffs, v. RAVALLI COUNTY, et al., Defendants.
CourtU.S. District Court — District of Montana

Lindsey W. Hromadka, Michelle R. Tafoya Weinberg, Weinberg & Hromadka, PLLC, Whitefish, MT, Timothy M. Bechtold, Bechtold Law Firm, Missoula, MT, for Plaintiffs.

Mark F. Higgins, Maco Defense Services, Helena, MT, for Defendants Ravalli County, Board of Commissioners of Ravalli County.

Jeffrey Russel Kuchel, Lindy M. Lauder, Gabrielle N. Gee, Crowley Fleck PLLP, Missoula, MT, for Defendants Lee E. Foss, Foss Realty, Inc.

Nicholas John Pagnotta, James David Johnson, Williams Law Firm, Missoula, MT, for Defendant Western Montana Excavation LLC.

Perry J. Schneider, Rachel H. Parkin, Milodragovich Dale Steinbrenner, Missoula, MT, for Defendants Sunnyside Orchards, LLC, Starlight Interests, LLC.


Donald W. Molloy, District Judge

In June 2017, Western Montana Excavation, LLC graded a road between Teddy Bear Lane and Northview Drive in Stevensville, Montana apparently to provide access to a parcel owned by Sunnyside Orchards, LLC. Nicole Croy and other adjacent property owners (collectively "Croy") sued Sunnyside Orchards, its registered manager Starlight Interests, LLC, its realtor Lee Foss, Western Montana Excavation, Ravalli County, and the Ravalli County Board of Commissioners, alleging that the road was illegally built. The crux of the case is whether the disputed road was built on a properly platted public highway, which requires an examination of county records going back over a century.

Foss seeks summary judgment that a public highway was established in 1909 by the plat submitted as Exhibit V, (Doc. 57-1). (Doc. 55.) The other defendants join his motion. (Docs. 59, 60, 63.) Croy seeks to defer a ruling on Foss's motion pending further discovery. (Doc. 66.) On the merits, she responds that the relevant plat is found at page 2 of Exhibit H, (Doc. 10-8), and is invalid for failing to comply with the statutory requirements for subdividing property. Alternatively, she argues that if a public highway were properly established, it has since been abandoned. For the following reasons, Croy's motion for further discovery is denied and Foss's motion for summary judgment is granted.


The following facts are undisputed unless otherwise noted, (see Docs. 57, 65-2), and viewed in the light most favorable to Croy, Tolan v. Cotton , 572 U.S. 650, 657, 134 S.Ct. 1861, 188 L.Ed.2d 895 (2014) (per curiam). At the outset, it is necessary to address the dispute over the relevant plat since it pervades the parties’ factual presentations. Croy's property and the disputed road are in the Sunnyside Orchards No. 1, or Sunnyside Orchards Eastland Benches, subdivision. (See Doc. 65-2 at ¶¶ 42, 78–80, 87.) Foss contends that Exhibit V is the original plat of the subdivision and that Exhibit H at 2 is a copy. (Id. at ¶¶ 5, 37.) Croy takes the opposite position. (Id. ) The plats include different notations and certifications, but they show the same subdivision. (Compare Ex. H at 2, Doc. 10-8 at 2 with Ex. V, Doc. 57-1.)

However, because Croy asserts that Exhibit H at 2 never validly established Sunnyside Orchards No. 1, she disputes every reference to the subdivision. For example, to the straightforward assertion that "[e]ach of the parcels of property owned by the Plaintiffs at issue in this case is within the Sunnyside Orchards No. 1 subdivision," Croy responds "[d]isputed as to the existence of Sunnyside Orchards No. 1 subdivision and Plaintiffs’ ownership of property within it." (Doc. 65-2 at ¶ 42.) Similarly, to a figure illustrating the property at issue in relation to the disputed road, she responds "[d]isputed as to the existence of the Sunnyside Orchards No. 1 subdivision and thus the ‘Block 7 Road.’ " (Id. at ¶ 70.) Her persistence in disputing basic facts, such as the location of the property at issue, is unhelpful and distracting. The factual recitation below disregards Croy's legal objections to Exhibit V couched as factual disputes.

I. History of Sunnyside Orchards No. 1

In the early 1900s, the Bitter Root Valley Irrigation Company owned and subdivided land in Ravalli County. (Id. at ¶ 1.) Relevant here, the Company subdivided the Townsite of Bitter Root in 1909 and four Sunnyside Orchards subdivisions in 1909 and 1910. (Id. at ¶¶ 2–8.) In 1913, the Company filed an amended Sunnyside Orchards No. 1 plat. (See id. at ¶¶ 26–28.) From 1972 to 1998, various lots in Sunnyside Orchards No. 1 were further subdivided. (Id. at ¶¶ 32–34.) Additionally, certain lots and blocks in the Townsite were abandoned, or "return[ed] to acreage," in 1926. (Id. at ¶ 13.) The parties disagree about whether the amendments to Sunnyside Orchards No. 1 are effective but seem to agree that, in any event, the changes do not implicate the disputed road. (See id. at ¶¶ 31–34, 80.) The parties dispute whether the partial abandonment of the Townsite affects this case. (Id. at ¶ 17.)

II. The Disputed Road

The disputed road is a segment of a 40-foot wide street that runs north-to-south between Blocks 6 and 7 on the Sunnyside Orchards No. 1 plats. (Id. at ¶¶ 75, 77–78.) The image below shows the platted road, with an arrow pointing approximately to the disputed segment.

(Id. at ¶ 75 (image cropped).) Though the road is one continuous street on the plat, that is not the reality on the ground. The actual road was constructed piecemeal.

In 1990, Ravalli County approved a petition to name as "Teddy Bear Lane" the portion of the street from what is now Croy's parcel north toward Porter Hill Road and Dry Gulch Road. (Id. at ¶ 82; Ex. AAA, Doc. 57-32.) In 1992, the County approved a petition to name as "Northview Drive" a portion of the street below Teddy Bear Lane, from the southerly junction with Porter Hill Road. (Doc. 65-2 at ¶ 83; Ex. BBB, Doc. 57-33.) Teddy Bear Lane and Northview Drive were not connected to each other; approximately 700 feet separated the southern terminus of Teddy Bear Lane from the northern terminus of Northview Drive, as shown in the aerial photo below. (Doc. 65-2 at ¶¶ 85, 120.)

(Doc. 64-1 at 60 (annotation added).)

In early 2017, certain landowners, including some of the plaintiffs in this suit, petitioned Ravalli County to abandon the 700 feet of platted but undeveloped road between Northview Drive and Teddy Bear Lane. (Doc. 65-2 at ¶¶ 120, 122–23.) The County did not act on the petition. (Id. at ¶ 128.) The landowners sought administrative review under Montana law, which ended unfavorably to them. (Id. at ¶¶ 129–30, 134–35.) Then, in June 2017, Western Montana Excavation constructed the disputed road to connect Teddy Bear Lane and Northview Drive. (Id. at ¶ 104.)

III. Procedural History

Croy filed this suit on April 26, 2019. (Doc. 1.) She asserts 15 claims in her Third Amended Complaint: Counts I through X are state and federal constitutional claims against the County and Board of Commissioners, (Doc. 48 at ¶¶ 58–101), Counts XI through XIII are state trespass, nuisance, and negligence claims, respectively, against all defendants, (id. at ¶¶ 102–13), and Counts XIV and XV seek declaratory judgments under federal and state law, respectively, on the status of the disputed road, (id. at ¶¶ 114–22). Foss moved for summary judgment on February 24, 2020. (Doc. 55.) The other defendants joined his motion soon after. (Docs. 59, 60, 63.) Croy responded and sought relief under Rule 56(d) of the Federal Rules of Civil Procedure on March 24. (Docs. 65, 66.) On July 8, the Court ordered Foss to supplement the record under Rule 56(e) to address evidentiary concerns with Exhibit V. (Doc. 75.) Foss complied on July 13. (Doc. 77.)

I. Croy's Rule 56(d) Motion

Croy moves under Rule 56(d) to defer consideration of Foss's motion for summary judgment pending further discovery. (Doc. 66.) That motion is denied.

A. Legal Standard

Rule 56(d) "provides a device for litigants to avoid summary judgment when they have not had sufficient time to develop affirmative evidence." Stevens v. Corelogic, Inc. , 899 F.3d 666, 678 (9th Cir. 2018) (internal quotation marks omitted). Under the rule, when the party opposing summary judgment "shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may: (1) defer considering the motion or deny it; (2) allow time to obtain affidavits or declarations or take discovery; or (3) issue any other appropriate order." Fed. R. Civ. P. 56(d).1 The party must show "(1) it has set forth in affidavit form the specific facts it hopes to elicit from further discovery; (2) the facts sought exist; and (3) the sought-after facts are essential to oppose summary judgment." Stevens , 899 F.3d at 678 (internal quotation marks omitted). Speculation that additional discovery may uncover material facts is not enough. Id. Relief should be granted "fairly freely" if a summary judgment motion is filed "before a party has had any realistic opportunity to pursue discovery relating to its theory of the case." B.N.S.F. Ry. Co. v. Assiniboine & Sioux Tribes of the Fort Peck Reservation , 323 F.3d 767, 773 (9th Cir. 2003).

B. Analysis

Croy's Rule 56(d) motion presents a chicken-and-egg problem. While courts are required to first rule on a Rule 56(d) motion before addressing summary judgment under Rule 56(a), Doe v. Abington Friends Sch. , 480 F.3d 252, 257 (3d Cir. 2007), the substantive law governing the merits analysis determines what facts are essential to summary judgment, see Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Put differently, to satisfy her burden under Rule 56(d), Croy must "make clear" how the facts she claims to need "would preclude summary judgment." Rocky Mtn. Biologicals, Inc. v. Microbix Biosystems, Inc. , 986 F. Supp. 2d 1187, 1201 (D. Mont. 2013). Croy has identified six facts on which she seeks further discovery:

(a) the

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