Grundy v. City of Burlington, 21-CV-03247

Case DateNovember 14, 2022
CourtSuperior Court of Vermont

Grundy, Alexus and Barreda, Grey

City of Burlington

No. 21-CV-03247

Superior Court of Vermont

November 14, 2022


Samuel Hoar, Jr. Superior Court Judge

Plaintiffs Alexus Grundy and Grey Barreda, former occupants of a homeless encampment located off Sears Lane in Burlington, seek to amend their complaint to add other former occupants and assert new claims stemming from the City of Burlington's removal of all occupants from the property. They seek a declaration that all occupants were tenants with the legal right to occupy the encampment. They allege that the City violated their due process rights by unlawfully ejecting them from the property, and their Fourth Amendment and Article 11 rights by unlawfully seizing and destroying personal property (Counts I and II). Plaintiffs also assert claims for false imprisonment (Count III) and intentional infliction of emotional distress ("IIED") (Count IV). The court grants the motion in part and denies it in part.[1]

Procedural Background

Ms. Grundy and Mr. Barreda originally brought this action to enjoin the City's removal action. After an evidentiary hearing, the court denied the request for a preliminary injunction, and the City proceeded to remove the occupants and their possessions from the encampment. The City then moved to dismiss the action as moot. The court granted that motion, without prejudice to Ms. Grundy and Mr. Barreda's right to move to amend to state a live claim.

On April 5, 2022, Ms. Grundy and Mr. Barreda filed a "Motion for Leave to File Amended Complaint," but failed to submit a proposed amended complaint. Accordingly, by entry dated May 10, 2022, the court allowed them until May 31, 2022 to submit a proposed amended complaint. On May 31, they filed that paper. On July 1, the City filed a "Motion to Dismiss Amended Complaint." Technically, this motion was premature, as the court had not yet ruled on the motion to amend. Rather than rejecting the filing on this technicality, the court instead treats the motion and subsequent briefing as supplemental briefing on the motion to amend.



The standard on a motion to amend a complaint is familiar. Amendments to the pleadings may be allowed at any time by leave of the court. See V.R.C.P. 15(a); Gauthier v. Keurig Green Mountain, Inc., 2015 VT 108, ¶ 43, 200 Vt. 125; Hunters, Anglers and Trappers Ass'n of Vermont, Inc. v. Winooski Valley Park Dist., 2006 VT 82, ¶ 17, 181 Vt. 12 (quoting Bevins v. King, 143 Vt. 252, 25455 (1983)); Lillicrap v. Martin, 156 Vt. 165 (1991). Nevertheless," 'denial of a motion under Rule 15(a) may be justified based upon . . . futility of amendment.'" Prive v. Vermont Asbestos Group, 2010 VT 2, ¶ 13, 187 Vt. 280, 286-87 (2010) (quoting Colby v. Umbrella, 2008 VT 20, ¶¶ 12-13, 184 Vt. 1). "Amendment is futile if the amended complaint cannot withstand a motion to dismiss." Vasseur v. State, 2021 VT 53, ¶ 7.

As a threshold matter, the City asserts that all of the new claims are premised on the existence of a landlord-tenant or other contractual relationship. It asserts further that in its November 1, 2021 decision, the court has already found that no such relationship exists. Thus, under the law of the case doctrine, the City asserts that the proposed amended complaint is futile because it fails to state a claim.

This argument, however, fails to acknowledge either the context of the court's prior decision or that decision's express limitation of its scope. That decision followed an evidentiary hearing on what the court interpreted as Plaintiffs' request for a preliminary injunction. The decision concluded that Plaintiffs had failed to adduce evidence sufficient to meet their burden of demonstrating standing to pursue their claims. The court took pains to limit the scope of its decision: "It may go without saying, but it nevertheless bears emphasis that this decision is made on Plaintiffs' request for a provisional remedy, and so is made based only on the evidence before the court at this time." Grundy v. City of Burlington, no. 21-CV-3247, 3 (Vt. Super. Ct. Nov. 1, 2021). The court expressed no opinion as to whether Plaintiffs had or could state a claim; indeed, the claim as then stated survived, and was later dismissed only because the single prayer for relief had become moot.

At the risk of again belaboring the obvious, different burdens apply to a request for a preliminary injunction and the determination whether a complaint states a claim. In the former context, "[t]he movant bears the burden of establishing that the relevant factors call for imposition of a preliminary injunction." Taylor v. Town of Cabot, 2017 VT 92, ¶ 19, 205 Vt. 586 (citing Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008)). To state a claim, however, the "threshold a plaintiff must cross in order to meet our notice-pleading standard is such a low one, requiring only that pleadings contain a 'short and plain statement of the claim showing that the pleader is entitled to relief.'" Montague v. Hundred Acre Homestead, LLC, 2019 VT 16, ¶ 10, 209 Vt. 514 (quoting


V.R.C.P. 8(a)) (other quotations and citation omitted). Thus, "[o]n a motion to dismiss, the court must assume that the facts pleaded in the complaint are true and make all reasonable inferences in the plaintiff's favor." Id.

Here, Plaintiffs allege in their Proposed Amended Complaint that they were tenants of the City with a right to possess 68 Sears Lane, and that the City violated their due process rights through a wrongful ejectment. Proposed Am. Compl. ¶¶ 45-46. While the court's earlier decision may suggest that Plaintiffs could have difficulty proving these allegations, at least at the pleading stage, the court must accept these allegations as true. Thus, to the extent the newly asserted claims rely on a tenancy, those allegations are sufficient under Rules 8(a) and 12(b)(6).

This conclusion, however, does not end the inquiry. The City does not rest its opposition exclusively on the preclusive effect of the court's earlier decision. Accordingly, the court examines each of Plaintiffs' new claims to assess the extent to which they assert colorable claims.

In their proposed Count I, Plaintiffs assert violations of their 4th Amendment rights "when Defendants seized and destroyed [their] property." Proposed Am. Complaint ¶ 47. The City opposes this amendment, asserting that Plaintiffs received due process prior to such seizure and destruction. It argues also that Plaintiffs have failed to allege a City policy or custom that deprived them of their rights, so as to allow municipal liability.

On the first of these arguments, the City relies on what it asserts to be sufficiency of notice. It points out that the Proposed Amended Complaint acknowledges that on two occasions, the City provided notice of the threatened removal action. Proposed Am. Compl. ¶¶ 25-26. It asserts also that the two notices "were part of the preliminary injunction proceedings" and so may be considered in assessing the sufficiency of the current allegations. This argument misses the mark, for several reasons. First, while the City filed copies of the notices in anticipation of the preliminary injunction hearing, they never became part of the record. Second, the notices on their face threaten removal actions on October 19 and October 26, 2021, respectively; it is at best questionable to what extent they provided sufficient notice of an action that occurred over a month later. Third, the notices describe a process for storage and reclaiming personal property; the Proposed Amended Complaint alleges, inferentially, that that process was not followed. Finally, to the extent that Plaintiffs may establish their right to the protections of Vermont landlord-tenant laws, the City's notices on their face do not comply with the notice requirements of those laws. See 9 V.S.A. § 4467. In short, the Proposed Amended Complaint sufficiently pleads a lack of due process prior to the removal and destruction of personal property.


The "policy or custom" argument is a bit more complicated. 42 U.S.C.A. § 1983 provides a right of action where a "person," under color of state law, subjects another person to the deprivation of any federal constitutional rights. A municipality can be...

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