Hall v. Doering
| Decision Date | 06 January 1998 |
| Docket Number | No. Civ.A. 97-2203-KHV.,Civ.A. 97-2203-KHV. |
| Citation | 997 F.Supp. 1445 |
| Parties | George Milam HALL and Mary Milam Hall, Plaintiffs, v. Steve DOERING, et al., Defendants. |
| Court | U.S. District Court — District of Kansas |
George Milam Hall, Greeley, KS, plaintiff, pro se.
Mary Milam Hall, Greeley, KS, plaintiff, pro se.
Michael E. Waldeck, Laura E. Thompson, Niewald, Waldeck & Brown, P .C., Kansas City, MO, for Steve Doering.
Wendell F. Cowan, Jr., Celia K. Garrett, Shook, Hardy & Bacon L.L.P., Overland Park, KS, for David Vaughn, Andy Bair, John Kersley, John Dowell, Gene Highberger, Ann Callahan, Dudley Feuerborn, Howard Thompson, Defendants.
Michael T. Halloran, Knipmeyer, McCann, Smith, Manz & Gotfredson, Kansas City, MO, for Bernard J. Lickteig, Mike Lickteig, Steve Lickteig, Defendants.
Terry J. Solander, Garnett, KS, for Kathy Feuerborn, Defendant.
James D. Griffin, Scott R. Ast, Blackwell, Sanders, Matheny, Weary & Lombardi, L.L.P., Overland Park, KS, for Terry J Solander, Defendant.
Lee H. Tetwiler, Winkler, Lee, Tetwiler & Domoney, Paola, KS, for Crown Realty of Kansas, Inc., Janie Burkdahl, Willie Duethman, Defendants.
James C. Morrow, Myerson & Morrow, Kansas City, MO, for Anderson County Review, Defendant.
M. Joan Klosterman, James C. Morrow, Myerson & Morrow, Kansas City, MO, for Garnett Publishing, Inc., Duane Hicks, as Editor of the Anderson County Review, Defendants.
In their second amended complaint, pro se plaintiffs George Milam Hall and Mary Milam Hall, his mother, allege that defendants Steve Doering, Bernard J. Lickteig, Mike Lickteig, Steve Lickteig, Kathy Feuerborn and Terry J. Solander denied and conspired to deny their civil rights under 42 U.S.C. §§ 1983 and 1985, violated and conspired to violate their rights under the Racketeer Influenced and Corrupt Organizations Act [RICO], 18 U.S.C. § 1961 et seq., and committed fraud, conspiracy to defraud, intentional infliction of emotional distress, negligent infliction of emotional distress, and intentional interference with prospective business relations in violation of state law. Plaintiffs' Second Amended Complaint (Doc. # 152) filed October 9, 1997. This action comes before the Court on various motions to dismiss: the Motion Of Terry Solander To Dismiss Plaintiffs' Second Amended Complaint (Doc. # 168) filed October 24, 1997; Defendant Steve Doering's Motion To Dismiss Plaintiffs' Second Amended Complaint (Doc. # 169) filed October 24, 1997; Defendant Kathy Feuerborn's Motion To Dismiss Plaintiffs' Second Amended Complaint (Doc. # 172) filed October 27, 1997; and the Separate Defendants Bernard Lickteig, Mike Lickteig And Steve Lickteig's Motion To Dismiss Second Amended Complaint And Objection To Jurisdiction (Doc. 173) filed October 27, 1997. The matter also comes before the Court on the Motion For Summary Judgment Of Terry Solander And Kathy Feuerborn (Doc. # 167) filed October 24, 1997. Having considered the arguments of record, the Court finds that said motions should be sustained in part and overruled in part for the reasons stated below.
In ruling on a motion to dismiss, the Court must assume the truth of all well-pleaded facts in plaintiffs' complaint and view them in a fight most favorable to plaintiffs. Zinermon v. Burch, 494 U.S. 113, 118, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990); California Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508, 515, 92 S.Ct. 609, 30 L.Ed.2d 642 (1972); see also Swanson v. Bixler, 750 F.2d 810, 813 (10th Cir.1984) (). The Court must make all reasonable inferences in favor of plaintiffs, and the pleadings must be construed liberally. Id.; see also Fed.R.Civ.P. 8(a); Lafoy v. HMO Colorado, 988 F.2d 97 98 (10th Cir.1993). The issue in reviewing the sufficiency of plaintiffs' complaint is not whether they will prevail, but whether they are entitled to offer evidence to support their claims. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). The Court may not dismiss a cause of action for failure to state a claim unless it appears beyond a doubt that plaintiffs can prove no set of facts in support of their theory of recovery that would entitle them to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Jacobs, Visconsi & Jacobs, Co. v. City of Lawrence, 927 F.2d 1111, 1115 (10th Cir.1991). Although plaintiffs need not precisely state each element of their claims, they must plead minimal factual allegations on those material elements that must be proved. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991).
Plaintiffs allege the following facts, which we deem to be true for purposes of the pending motions to dismiss:1
In August, 1994, Bernard Lickteig sold Mary Hall [Mrs. Hall] certain farm property in Greely, Kansas. The property contained various chattels, including several horses which Bernard Lickteig kept on the property and which he claimed to own. As part of the transaction between Bernard Lickteig and Mrs. Hall, the parties executed a purchase agreement which contained certain conditions and which conveyed to plaintiffs certain items of personal property that remained on the real estate. The conditions included agreements that Bernard Lickteig would deliver titles to mobile homes and trucks, repair fencing on the property, plant wheat and cultivate 40 acres of crops on the farm, compensate plaintiffs for care of his horses, and pay for soybeans harvested from the property. Bryan Lickteig, Bernard Lickteig's nephew, later told Hall that the horses belonged not to Bernard Lickteig but to the estate of the Lickteig children [the conservatorship]. After Hall expressed concern about who owned the horses, Bryan Lickteig agreed to provide proof that the conservatorship owned the horses. He also expressed a willingness to compensate plaintiffs for costs which they incurred in caring for the horses.
On April 17, 1995, Hall sent a letter to Steve Doering, the attorney for Bernard Lickteig, to tell him about a dispute between Bernard Lickteig and Mrs. Hall. The letter alleged that Bernard Lickteig had breached the conditions of the parties' agreement, in that he had failed to deliver the titles, repair the fencing, plant the wheat and cultivate 40 acres, or pay for either the soybeans or the horse care. The letter also stated that Bernard Lickteig had removed property that he was not authorized to take from the farm and notified Doering that Bernard Lickteig should not try to remove additional items. Hall also demanded immediate payment of $50,300.
On April 21, 1995, Kathy Feuerborn, acting as conservator of the Lickteig estate, gave Bernard Lickteig and Mike Lickteig written permission to move four horses which belonged to the conservatorship. That same date, Doering contacted the sheriff's office to request a "civil standby" to recover certain property (including the horses) from plaintiffs' farm.2 The sheriff's office complied and on April 22, 1995, a deputy sheriff assisted some or all of the defendants in entering plaintiffs' farm, searching it, and seizing plaintiffs' property, including nine horses in which plaintiffs held a security interest under Kansas law.3
Plaintiffs contend that while a state court had authorized the Lickteigs to recover certain property, they removed additional property with knowledge that Hall had a "civil arrangement [i.e., contract] with the beneficiaries of the collateral." Plaintiffs claim that by their conduct, defendants conspired and committed fraud, "cover up," and malicious prosecution of plaintiffs and their rights. Plaintiffs also allege that defendants acted as part of the "Anderson County Fraud Group" [ACFG] and that defendants acted maliciously to injure plaintiffs and deprive them of constitutional rights.4
Plaintiffs assert overlapping theories against the six named defendants, claiming that each acted individually and collectively under the aegis of the ACFG. All defendants argue that plaintiffs' claims should be dismissed because (1) plaintiffs fail to allege facts which establish an actionable claim under 42 U.S.C. § 1983; (2) plaintiffs fail to allege either a conspiracy or a legally sufficient class-based animus under 42 U.S.C. § 1985; (3) plaintiffs fail to allege either a predicate racketeering activity or a pattern of racketeering activity under civil RICO; and (4) the Court should decline to exercise supplemental jurisdiction over plaintiffs' state law claims under 28 U.S.C. § 1367(c)(3). Certain defendants assert additional grounds for dismissal, which the Court addresses below.
To state a claim under Section 1983, plaintiffs must allege that a person has deprived them of a federal right, constitutional or statutory, and that the person acted under of color of state law in doing so. Morris v. State of Kansas Dept. of Revenue, 849 F.Supp. 1421, 1425 (D.Kan.1994); Gomez v Toledo, 446 U.S. 635, 640, 100 S.Ct. 1920, 64 L.Ed.2d 572 (1980); Christy v. Randlett, 932 F.2d 502, 504 (6th Cir.1991) (). To defeat a motion to dismiss, plaintiffs' claim under Section 1983 must state specific facts—not simply legal and constitutional conclusions. Fee v. Herndon, 900 F.2d 804, 805 (5th Cir.1990), cert. denied, 498 U.S. 908, 111 S.Ct. 279, 112 L.Ed.2d 233 (1990).
Defendants advance various reasons—none of them persuasive—why plaintiffs cannot prevail on their claims under Section 1983. Doering contends that plaintiffs have failed to meet the pleading requirements of Section 1983, in that they have identified no right which Doering violated and have not alleged facts which suggest that Doering acted under color of...
To continue reading
Request your trial
-
Brooks v. Sauceda
...act under color of state law. An action under 42 U.S.C. § 1983 requires that defendant act under color of state law. Hall v. Doering, 997 F.Supp. 1445, 1450 (D.Kan.1998). In addition, to the extent plaintiff brings claims against Roe under Sections 1981, 1982, 1985 or 1986, these claims are......
-
Hall v. Doering
...issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c). See Hall, 997 F.Supp. 1445 n. 7. Analysis A. Claims Under 42 U.S.C. § 1983 In its memorandum and order of January 5, 1998, which overruled defendants' motions to dismiss......
-
Yeager v. Nat'l Pub. Radio
... ... between the plaintiff and an agent of the principal[]” ... for purposes of res judicata. Hall v. Doering , 997 ... F.Supp. 1445, 1462 (D. Kan. 1998) (applying Kansas law ); ... see also Midwest Crane & Rigging, LLC v. Schneider , ... ...
-
Zhu v. St. Francis Health Center
...re-litigation of an issue by a party against whom the issue has been conclusively determined in a prior action. Hall v. Doering, 997 F.Supp. 1445, 1459 (D.Kan.1998); Am. Home Assurance Co. v. Pac. Indem. Co., 672 F.Supp. 495, 498 (D.Kan.1987); Crutsinger v. Hess, 408 F.Supp. 548, 551 (D.Kan......