Golemine, Inc. v. Town of Merrillville, Indiana
| Decision Date | 13 July 2009 |
| Docket Number | Case No. 2:08 cv 145. |
| Parties | GOLEMINE, INC., dba The Rink, Antwan Thorbs, Plaintiffs v. TOWN OF MERRILLVILLE, INDIANA, Defendant. |
| Court | U.S. District Court — Northern District of Indiana |
Darnail Lyles, Lyles & Harris PC, Gary, IN, for Plaintiffs.
Martin W. Kus, Michelle L. Shirk, Newby Lewis Kaminski & Jones LLP, Laporte, IN, for Defendants.
This matter is before the court on the Motion to Dismiss Plaintiffs' Complaint for Lack of Subject Matter Jurisdiction [DE 19] filed by the defendant, Town of Merrillville, Indiana, on January 6, 2009, and the Motion to Strike [DE 22] filed by the plaintiffs, Golemine, Inc. and Antwan Thorbs, on January 24, 2009. For the reasons set forth below, the motion to dismiss is DENIED, and the motion to strike is DENIED.
Golemine, Inc., operated a successful skating rink in Merrillville, Indiana, called The Rink. It originally was owned and operated by Don Reiner. Golemine entered a contract to purchase The Rink and utilized its profits to pay the contract purchase price. Reiner, and later Golemine, operated The Rink under a valid business license from Merrillville. Antwan Thorbs, an African American, was a principal of Golemine and operated The Rink.
sent a letter to Merrillville Town officials reporting an increase in frequency and severity of problems at The Rink and its surrounding area. Issues arising from the site which concerned Huish included repeated noise complaints, fights, loitering, batteries, and an assault on a police office by a Rink security guard. Huish wrote a second letter on February 20, 2008, describing further problems at The Rink and recommending the revocation of The Rink's business license.
Golemine and Thorbs claim that Merrillville and its police department harassed and threatened them with the issuance of nuisance citations designed to affect The Rink's ability to maintain a customer base and earn a profit. In addition, on January 26, 2008, Thorbs was arrested by a Merrillville police officer issuing him a citation for a public nuisance violation. This arrest is documented in one of Huish's letters as well as in the Complaint, which states that "Thorbs was arrested and charged with resisting arrest for questioning the Merrillville Officer and for not showing the Officer his identification quick [sic] enough." (Pltf. Compl. ¶ 17)
On March 7, 2008, Tim Brown, then Merrillville Town Manager, held and recorded a meeting with Reiner, his attorney, and Thorbs concerning the problems with The Rink. At the meeting, the attendees discussed the previous incidents with the Merrillville Police Department and the negative effects on Merrillville's resources and the surrounding community. At the close of the meeting, Brown stated that he would suspend Golemine's business license for a 60-day period, but after an objection by Golemine's counsel, he decided to revoke Golemine's license for The Rink for 60 days as specifically prescribed by the Ordinance. Brown indicated that he would schedule a meeting with the Town Council, which can hear appeals from Brown's decisions, within the 60 day period. Brown revoked The Rink's business license pursuant to Merrillville Ordinances 9-62 and 9-63, which allow for suspension or revocation of any license following violations of ordinances and other laws, rules, or regulations.
On March 10, 2008, Golemine and Thorbs' counsel sent a facsimile to counsel for Merrillville indicating that they intended to request a temporary restraining order (TRO) the following day to bar the license revocation. On March 11, 2008, after a discussion with counsel for the Town and Brown, Golemine and Thorbs agreed to delay filing the lawsuit in exchange for either lifting the revocation or scheduling an expedited public hearing before the Town Council. Golemine and Thorbs also requested that they be permitted to open their business on March 14, 2008.
The parties do not appear to have made any additional contact between March 12 and May 5, 2008. The Rink remained closed. On May 5, Golemine and Thorbs filed a Complaint in federal court claiming violations of their civil rights. Specifically, Golemine sought compensation for a violation of its civil rights to engage "in commerce and its ability to make, enforce and perform contracts," and Thorbs claimed violations of his "fundamental rights in order to shut his business down." (Comp. ¶¶ 10, 18) Merrillville filed its timely answer on June 13, 2008, which included a denial of subject matter jurisdiction. ) On January 6, 2009, Merrillville filed a Motion to Dismiss under Federal Rule of Civil Procedure 12(b)(1) claiming that the court lacked subject matter jurisdiction over the case because the claims are not ripe due to the plaintiffs' failure to seek a final determination from the Town Council. Golemine and Thorbs filed a Rule 12(f) Motion to Strike the Motion to Dismiss based on the contention that a Rule 12(b)(1) motion must be filed prior to the filing of a responsive pleading.
In regards to plaintiffs' Motion to Strike the Town's Motion to Dismiss, Rule 12(f) provides:
The court may strike from a pleading an in — sufficient defense or any redundant, immaterial, impertinent, or scandalous matter. The court may act: (1) on its own; or (2) on motion made by a party either before responding to the pleading or, if a response is not allowed, within 20 days after being served with the pleading.
The Seventh Circuit disfavors motions to strike because they can be used as a means of causing delay in the judicial process. Sayad v. Dura Pharmaceuticals, Inc., 200 F.R.D. 419, 421 (N.D.Ill.2001) (citing Heller Financial, Inc. v. Midwhey Powder Co., 883 F.2d 1286, 1294 (7th Cir. 1989)). However, where motions to strike seek to "remove unnecessary clutter from the case, they serve to expedite, not delay." Heller Financial, Inc., 883 F.2d at 1294.
The Federal Rules of Civil Procedure govern a motion to dismiss for lack of subject matter jurisdiction, including the required timing of such motions. Rule 12(b) provides:
Every defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required. But a party may assert the following defenses by motion: (1) lack of subject-matter jurisdiction. . . . A motion asserting any of these defenses must be made before pleading if a responsive pleading is allowed.
Rule 12(b) expands on Rule 12(b)(1) by stating: "If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action." Rule 12, read in its entirety, indicates that subject matter jurisdiction is different from other defenses. Indeed, subject matter jurisdiction cannot be forfeited or waived by a party. Arbaugh v. Y & H Corp., 546 U.S. 500, 514, 126 S.Ct. 1235, 1244, 163 L.Ed.2d 1097 (2006) (quoting United States v. Cotton, 535 U.S. 625, 630, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002)). Additionally, the court is required to dismiss the action if it finds it lacks subject matter jurisdiction, even in the absence of a motion by a party. Arbaugh, 546 U.S. at 514, 126 S.Ct. at 1244.
Golemine and Thorbs argue that the 2007 Amendments to the Federal Rules of Civil Procedure made it mandatory for a defendant to file a motion to dismiss for lack of subject matter jurisdiction prior to filing its responsive pleading. However, this argument is negated by the Advisory Committee's Notes to the 2007 Amendments, which state that Rule 12 Advisory Committee's Note (emphasis added). The restyling of the rules was not intended to change the process for raising issues of subject matter jurisdiction. Indeed, this circuit has continued to allow subject matter jurisdiction to be raised at any time in the litigation. See, e.g., Craig v. Ontario Corp., 543 F.3d 872, 875 (7th Cir.2008) (). Because the 2007 stylistic changes to Rule 12 did nothing to change the well-settled law on subject matter jurisdiction, the Motion to Strike is DENIED.
As to Merrillville's Motion to Dismiss on a lack of subject matter jurisdiction, the party asserting federal jurisdiction has the burden of establishing its existence by competent proof. Krizan v. Apfel, 35 F.Supp.2d 672, 676 (N.D.Ind. 1999). A federal court must presume that it lacks jurisdiction unless the record affirmatively indicates that it in fact has jurisdiction. Sprint Spectrum L.P. v. City of Carmel Indiana, 361 F.3d 998, 1001 (7th Cir.2004) (quoting Renne v. Geary, 501 U.S. 312, 316, 111 S.Ct. 2331, 2336, 115 L.Ed.2d 288 (1991)). In determining the existence of subject matter jurisdiction, the court may look to evidence outside of the pleadings. Krizan, 35 F.Supp.2d at 676. In reviewing the complaint, the court takes plaintiff's well-pleaded facts as true and draws reasonable inferences in plaintiff's favor. Sprint Spectrum, 361 F.3d at 1001.
Golemine and Thorbs' Complaint states that their claims are brought under three civil rights statutes: 42 U.S.C. § 1981, 42 U.S.C. § 1982, and 42 U.S.C. § 1983. Ordinarily, the court would be vested with subject matter jurisdiction under these statutes by 28 U.S.C. § 1331, which provides federal question jurisdiction, and 28 U.S.C. § 1343, which provides jurisdiction for claims arising under the Civil Rights Acts. However, in this case...
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...The party asserting federal jurisdiction has the burden of proving its existence. Golemine, Inc. v. Town of Merrillville, Ind., 652 F. Supp. 2d 977, 981 (N.D. Ind. 2009). Moreover, "[a] federal court must presume that it lacks jurisdiction unless the record affirmatively indicates that it i......