KTK Mining of Va., LLC v. City of Selma

• Decision Date: 31 October 2013
• Docket Number: Civil Action No. 12–00655–KD–C.
• Parties: KTK MINING OF VIRGINIA, LLC, Plaintiff, v. CITY OF SELMA, ALABAMA, Defendant.
• Court: U.S. District Court — Southern District of Alabama

984 F.Supp.2d 1209

KTK MINING OF VIRGINIA, LLC, Plaintiff,

v.CITY OF SELMA, ALABAMA, Defendant.

Civil Action No. 12–00655–KD–C.

United States District Court,

S.D. Alabama,

Northern Division.

Oct. 31, 2013.

E. Elliott Barker, John E. Pilcher, Pilcher & Pilcher, P.C., J. Wesley Kelly, IV, John W. Kelly, III, Selma, AL, for Plaintiff.

Rick A. Howard, Holtsford, Gilliland Higgins Hitson & Howard, PC, April W. McKay, Montgomery, AL, Jimmy L. Nunn, Selma, AL, for Defendant.

ORDER

KRISTI K. DuBOSE, District Judge.

This action is before the Court on the Motion for Partial Summary Judgment (Doc. 58) filed by Plaintiff KTK Mining of Virginia, LLC (“KTK”) and the Motion for Summary Judgment (Doc. 57) filed by the Defendant City of Selma, Alabama (“the City”) along with the various briefs and exhibits (Doc. 59–61, 63–1, 67–73) in support of or opposition to same. The motions have been taken under submission ( see Docs. 62, 78) and are ripe for adjudication. Upon consideration, and for the reasonsset forth herein, the Court finds that KTK's motion is due to be GRANTED and that the City's motion is due to be DENIED as to KTK's procedural due process claims.¹

I. Procedural History

On October 17, 2012, Plaintiffs KTK and Todd Kiscaden (“Kiscaden”) initiated this action by filing a Complaint (Doc. 1) with the Court, asserting causes of action against the City and its Chief of Police, William T. Riley (“Riley”), pursuant to 42 U.S.C. § 1983 (for alleged violations of their rights under the First, Fifth, and Fourteenth Amendments of the United States Constitution) and state law. On March 19, 2013, Plaintiffs, with leave of the Court (Doc. 23), filed an Amended Complaint (Doc. 28), the operative pleading in this action.²See, e.g., Pintando v. Miami–Dade Hous. Agency, 501 F.3d 1241, 1243 (11th Cir.2007) (“As a general matter, an amended pleading supersedes the former pleading; the original pleading is abandoned by the amendment, and is no longer a part of the pleader's averments against his adversary.” (quotation omitted)). The Amended Complaint also asserted claims pursuant to both § 1983 and state law.³

Both the City and Riley filed a motion to dismiss all claims asserted in the Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). (Doc. 29). Briefing was conducted on the motion to dismiss, after which the Magistrate Judge issued a Report and Recommendation on the motion. (Doc. 40). On July 2, 2013, the Court adopted in part the Report and Recommendation and dismissed all of Kiscaden's claims, all claims against Riley, and some claims against the City. (Doc. 44). The Court expressly found that the following counts of the Amended Complaint were not dismissed and remained pending against the City: “Count One (First Amendment and procedural due process claim); Count Four (conversion as to personal property); Count Five (negligence and wantonness); Count Seven (permanent injunctive relief); and Count Eight (appeal of the suspension/revocation of KTK's building permit by the City of Selma).” ( Id. at 2). KTK's present motion requests partial summary judgment in its favor “for the relief demanded for the violation of [KTK]'s Fourteenth Amendment procedural due process claims under Count I and Count VIII of the [ ]First Amended Complaint.” (Doc. 58 at 1). Though the City has moved for summary judgment on all of KTK's claims, the Court will presently only address the motion as it relates to KTK's procedural due process claim.

II. Standard of Review

“The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Rule 56(c) governs procedures and provides as follows:

(1) Supporting Factual Positions. A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:

(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or

(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.

(2) Objection That a Fact Is Not Supported by Admissible Evidence. A party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.

(3) Materials Not Cited. The court need consider only the cited materials, but it may consider other materials in the record.

(4) Affidavits or Declarations. An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.

Fed.R.Civ.P. 56(c).

A party seeking summary judgment bears the initial responsibility of informing the district court of the basis for its motion and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact. Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir.1991) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). The mere existence of a factual dispute will not automatically necessitate denial; rather, only factual disputes that are material preclude entry of summary judgment. Lofton v. Sec'y of Dep't of Children & Family Servs., 358 F.3d 804, 809 (11th Cir.2004).

If a non-moving party fails to make a sufficient showing on an essential element of its case with respect to which it has the burden of proof, the moving party is entitled to summary judgment. Celotex, 477 U.S. at 323, 106 S.Ct. 2548. In reviewing whether a non-moving party has met its burden, the Court must stop short of weighing the evidence and making credibility determinations of the truth of the matter. Instead, the evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in its favor. Tipton v. Bergrohr GMBH–Siegen, 965 F.2d 994, 998–99 (11th Cir.1992) (internal citations and quotations omitted).

“ ‘Cross-motions for summary judgment will not, in themselves, warrant the court in granting summary judgment unless one of the parties is entitled to judgment as a matter of law on facts that are not genuinely disputed ... Nonetheless, cross-motions may be probative of the non-existence of a factual dispute when ... they demonstrate a basic agreement concerning what legal theories and material facts are dispositive.’ ” United States v. Oakley, 744 F.2d 1553, 1555–56 (11th Cir.1984) (quoting Bricklayers Int'l Union, Local 15 v. Stuart Plastering Co., 512 F.2d 1017 (5th Cir.1975)) (per curiam) (second ellipsis added). See also Wermager v. Cormorant Twp. Bd., 716 F.2d 1211, 1214 (8th Cir.1983) (“[T]he filing of cross motions for summary judgment does not necessarily indicate that there is no dispute as to a material fact, or have the effect of submitting the cause to a plenary determination on the merits.”).

III. Facts

The Confederate Memorial Circle (“the Circle”) is a one-acre tract of land located in the City's Old Live Oak Cemetery. The Circle was established in 1877 by a resolution of the Selma City Counsel granting a petition by members of the Ladies of the Confederate Memorial Association requesting a donation of one acre of ground located in that area upon which to erect a monument to the Confederate dead. In addition to hosting a Confederate memorial, the Circle serves as a burial place for 195 Confederate dead and is the site of a World War I memorial. A monument to Confederate General Nathan Bedford Forrest was added to the Circle in 2001 after the Selma City Council ordered that it be moved there from another location, where it had been erected in 2000 by an organization known as the Friends of Forrest (“FOF”). In March 2012, persons unknown vandalized the Forrest monument.

On August 2, 2012, KTK entered into a contract with Selma Chapter 53 of the United Daughters of the Confederacy (“UDC”), for the sum of $1.00 and other consideration, to perform construction work on the Circle for the purpose of making improvements. The UDC, along with the City, has taken part in the maintenance of the Circle for over 100 years. KTK estimates that, when completed, the work it planned to perform for the UDC would have a value of $163,200. KTK agreed to perform this work on a non-profit basis, with all costs and expenses to be either borne by KTK or reimbursed by private contributions. On August 6, 2012, KTK entered into a contract with FOF to make improvements to the Circle and to relocate and secure the Forrest monument within the Circle. KTK estimates that, when completed, the work it planned to perform for FOF would have a value of $56,300. KTK also agreed to perform this work on a non-profit basis and to bear most costs and expenses, other than those which FOF members might wish to cover voluntarily.

On August 3, 2012, pursuant to City Ordinance No. 01–9091, the Selma Historic Development Commission issued UDC and FOF a Certificate of Appropriateness for the Circle refurbishing project. That same day, the required Certificate of Appropriateness having been first obtained (due to the fact that the planned work was taking place in a historic district), KTK was issued a building permit from the City's Department of the Building Inspector to proceed with the project. KTK then began its work on the Circle.

On August 9, 2012, a protester, Rose Sanders a/k/a Faya Toure (“Toure”), entered the construction site and caused a disruption. On or about August 23, 2012, Toure and other protesters entered the construction site and attempted to...