McLinn v. Thomas Cnty. Sheriff's Dep't

• Citation: 535 F.Supp.3d 1087
• Decision Date: 26 April 2021
• Docket Number: Case No. 20-2385-JWB
• Parties: Kyle MCLINN; and Outlaw Towing & Recovery Inc., Plaintiffs, v. THOMAS COUNTY SHERIFF'S DEPARTMENT; Joel Thomas Nickols, Jr., Individually and in his capacity as Thomas County Sheriff; Jacob Cox, Individually and in his capacity as Deputy Thomas County Sheriff; First State Bank of Healy, also known as First State Bank of Healey; Travis Ryburn; Triple T. Towing; and Thomas County, Kansas, Board of Commissioners, Defendants.
• Court: U.S. District Court — District of Kansas

535 F.Supp.3d 1087

Kyle MCLINN; and Outlaw Towing & Recovery Inc., Plaintiffs,

v.THOMAS COUNTY SHERIFF'S DEPARTMENT; Joel Thomas Nickols, Jr., Individually and in his capacity as Thomas County Sheriff; Jacob Cox, Individually and in his capacity as Deputy Thomas County Sheriff; First State Bank of Healy, also known as First State Bank of Healey; Travis Ryburn; Triple T. Towing; and Thomas County, Kansas, Board of Commissioners, Defendants.

Case No. 20-2385-JWB

United States District Court, D. Kansas.

Signed April 26, 2021

Everett M. Upshaw, Pro Hac Vice, Upshaw, Uhrich, Taylor, & Dykema PLLC, Dallas, TX, Allison Greer Kort, Kort Law Firm, LLC, Kansas City, MO, for Plaintiffs.

Allen G. Glendenning, Jeffrey M. Kuhlman, Watkins Calcara, Chtd., Great Bend, KS, for Defendants Thomas County Sheriff's Department, Joel Thomas Nickols, Jr., Jacob Cox, Thomas County, Kansas, Board of Commissioners.

Joseph E. Bant, Thomas M. Martin, Lewis Rice, LLC, Kansas City, MO, for Defendant First State Bank of Healy.

Tracy M. Hayes, Tyler Waugh, Colin J. Finnegan, Sanders Warren Russell & Scheer, LLP, Overland Park, KS, for Defendants Travis Ryburn, Triple T. Towing.

MEMORANDUM AND ORDER

JOHN W. BROOMES, UNITED STATES DISTRICT JUDGE

This matter comes before the court on motions to dismiss by the Thomas County Defendants¹ (Doc. 50), Travis Ryburn and Triple T Towing (Doc. 46), and First State Bank of Healy ("FSB") (Doc. 52), as well as on Plaintiffs’ motions for a hearing (Doc. 71) and for leave to file a surreply (Doc. 77.) The motions are fully briefed and the court is prepared to rule. (Docs. 47, 51, 58, 66, 72, 73, 75, 78, 79.) For the reasons stated herein, Plaintiffs’ motions for a hearing and to file a surreply are DENIED; the motion to dismiss of FSB is DENIED without prejudice to refiling;² and the motions to dismiss of the Thomas County Defendants (Doc. 50), Ryburn and Triple T Towing (Doc. 46) are GRANTED IN PART and DENIED IN PART.

I. Preliminary Matters

A. Materials outside the pleadings. The claims in this case arise from the allegedly unlawful repossession of Plaintiffs’ vehicle on August 10, 2018. The Thomas County Defendants’ motion to dismiss relies in part on a video (with audio) recording of the incident captured by Deputy Cox's law enforcement body camera ("body cam"). Defendants argue the court should consider the body cam video because it is referenced in and relied on by Plaintiffs in the amended complaint. (Doc. 51 at 2-3.) In response, Plaintiffs "do not object" to the court's consideration of the video, but only to the extent it does not conflict with the amended complaint, and they argue that a number of factual inferences arise from the video. (Doc. 73 at 4-8.) Defendants dispute those inferences, arguing in reply that the "video speaks for itself, and completely contradicts" Plaintiffs’ allegations of (among other things) a threatening encounter. (Doc. 75 at 2.)

Courts considering videos attached to dispositive motions usually do so at the summary judgment stage. Estate of Holmes by and through Couser v. Somers, 387 F. Supp. 3d 1233, 1243-44 (D. Kan. 2019). Given that summary judgment motions are designed to evaluate and consider whether there is evidence to support the allegations in the complaint, that is hardly surprising. After considering the particular arguments made by the parties, and the nature of the video, the court declines to consider the video in connection with the Thomas County Defendants’ motion to dismiss the amended complaint under Rule 12(b)(6). Although the court has discretion to consider materials outside the pleadings on a motion to dismiss (see Lowe v. Town of Fairland, 143 F.3d 1378, 1381 (10th Cir. 1998) ), in this case additional evidence or testimony may be necessary to establish whether the video shows all of the relevant events, and to explain events depicted in the video. Under the circumstances, the court will limit its consideration to the allegations in the amended complaint.

B. Motion for leave to file surreply. (Doc. 77.) Plaintiffs ask to file a surreply to address what they characterize as several new issues raised by the Thomas County Defendants in their reply. (Doc. 77 at 1.) Surreplies "are permitted only with leave of court and under ‘rare circumstances’ after good cause is shown." James v. Boyd Gaming Corp. , No. 19-2260-DDC-JPO, 522 F.Supp.3d 892, 902-03 (D. Kan. Mar. 2, 2021) (citations omitted). Much of Plaintiffs’ proposed surreply deals with inferences from the body cam video. (Doc. 77-1 at 1-2.) Given that the court has excluded the video from consideration, this provides no basis for a surreply. Plaintiffs also seek to make additional legal arguments about breaches of the peace, qualified immunity, and the requirements of the Kansas Tort Claims Act, but they fail to show these are necessary responses to new issues, as opposed to attempts to have the last word on issues raised by the motion to dismiss. (Id. at 3-5.) Finally, Plaintiffs want to respond to what they say is Defendants’ "unwarranted Rule 11 accusation," but the surreply fails to address the substance of the underlying issue. See (Doc. 73 at 4) (Plaintiffs asserting that Defendants produced the body cam footage "but deliberately produced no other relevant evidence....") In any event, Defendants have asserted no Rule 11 motion, so a surreply on that issue is unnecessary. The motion for leave to file a surreply (Doc. 77) is therefore denied.

C. Motion for hearing. (Doc. 71.) Plaintiffs seek oral argument on the motions to dismiss because "further explanation and arguments regarding certain actions ... in the [body cam] footage would be beneficial...." (Doc. 71 at 1.) Again, the court has excluded the video from consideration, so argument is not merited on that point. Moreover, the court determines that oral argument would not assist in deciding the issues presented. See D. Kan. R. 7.2 (court may allow oral argument); Carter v. Spirit Aerosystems, Inc., 827 F. App'x 864, 870 (10th Cir. 2020) (denial of oral argument reviewed for abuse of discretion).

II. Facts

The following allegations are taken from the amended complaint (Doc. 45) and are assumed to be true for purposes of deciding the motions to dismiss.

Plaintiff McLinn is a resident of Oakley, Kansas. He is the sole shareholder and director of Outlaw Towing & Recovery, Inc. ("Outlaw Towing"). Defendant Cox is a deputy sheriff for Thomas County. Defendant Nickols is the Thomas County Sheriff. Defendant Triple T Towing ("Triple T") is a tow company located in Oakley and is operated by Defendant Ryburn. (Doc. 45 at 1-4.)

In February 2017, Plaintiffs purchased a 2006 Ford F350 ("the F350") with a loan from First State Bank of Healy, Kansas ("FSB"). The F350 was collateral for the loan. Payments on the loan were due the third day of each month, and late charges became due if payments were ten or more days late. (Id. at 6.) Plaintiffs’ payment "made in July 2018 was dishonored." (Id. )

On August 10, 2018, sometime before 9 a.m., Ryburn/Triple T, acting under the direction of FSB, arrived on Plaintiff McLinn's property to repossess the F350. (Id. ) Ryburn/Triple T were Plaintiffs’ direct competitors. No notice of any kind was sent by FSB, nor did it obtain any court order to authorize the repossession. The F350 was parked on land rented by McLinn and Outlaw Towing, about a tenth of a mile from the nearest entrance to the property. (Id. at 7.) Deputy Cox arrived at the same time as Ryburn/Triple T. Greg Jirak, a Trooper with the Kansas Highway Patrol, also arrived at that time and remained by the highway near Plaintiffs’ property. The officers arrived because Triple T/Ryburn had requested law enforcement presence to facilitate the repossession. (Id. at 7-9.)

McLinn, who was inside the building on the premises, heard some noise and came outside to investigate. Cox was near the door. McLinn informed Cox that Triple T/Ryburn had been told they were not to come on McLinn's property and that they were not welcome on the property. McLinn demanded that Triple T/Ryburn and Cox leave the F350 alone and leave the property. Cox nonetheless instructed McLinn not to resist and to allow the repossession to happen. McLinn became agitated and yelled to demand that they leave the vehicle alone and leave the property. At more than one point, Cox put his hand on his gun. (Id. at 11.) When McLinn asked Cox the identity and purpose of the Highway Patrol Trooper, Cox informed him it was Greg Jirak and that he was there as "backup." (Id. at 8.)

McLinn attempted to retrieve his personal items from the F350. Cox imposed himself between McLinn and the F350 and put his hand on his gun. Cox stood close to McLinn throughout the encounter. When it became clear to McLinn that he could not stop the tow, he attempted to go back inside to get dressed. Cox stopped him and demanded that McLinn confirm he was not going back inside to get a weapon. (Id. at 12-13.)

McLinn was not given any paperwork justifying the repossession. He continued to protest and demand that they leave, but Cox ignored his protests. The tow was completed and the F350 was removed from the property. Cox remained until the repossession was complete. (Id. at 13.)

According to the amended complaint, the towing insurance of Triple T/Ryburn had been canceled as of June 30, 2018, and was not effective again until June 30, 2019, such that Triple T/Ryburn was uninsured on August 10, 2018. (Id. at 14.)

When McLinn first called the Thomas County Sheriff's Office after the incident to complain about the repossession, Sheriff Nickols allegedly laughed and said he saw nothing wrong with what was done. (Id. at 15.)

On the same day the F350 was repossessed, the Thomas County Sheriff's Office represented to the Thomas County Attorney that Cox had been in possession of a court order allowing the repossession. The Thomas County Attorney took the position with McLinn that nothing wrong had been done because Cox was enforcing a valid court order...