Metro. Omaha Prop. Owners Ass'n v. City of Omaha

Decision Date10 December 2019
Docket Number8:19CV341
PartiesMETROPOLITAN OMAHA PROPERTY OWNERS ASSOCIATION, INC., and ROOSEVELT LEE, Plaintiffs, v. THE CITY OF OMAHA, JEAN STOTHERT, in her individual and official capacity; JAY DAVIS, in his individual and official capacity; PAUL KRATZ, in his individual and official capacity; JANE DOES, and JOHN DOES, Defendants.
CourtU.S. District Court — District of Nebraska

This matter is before the Court on Defendants' Motion to Dismiss for Failure to State a Claim, ECF No. 14. For the following reasons, the Motion will be granted in part.


The following facts are those alleged in the Complaint, ECF No. 1, and are assumed true for purposes of this Motion.

Plaintiff Metropolitan Omaha Property Owners Association, Inc. (MOPOA) is a Nebraska nonprofit corporation. MOPOA consists of approximately 1,000 individuals and entities that own and operate real property located in Omaha, Nebraska.

Defendants include the City of Omaha and a list of city officials, including: Mayor Jean Stothert, Superintendent of Permits and Inspections Jay Davis, City Attorney Paul Kratz, and unknown Jane and John Does who Plaintiffs anticipate are agents or representatives of the City.

This action arises out of an earlier class action lawsuit in this Court, in which MOPOA brought a number of claims regarding the City's housing code. The parties settled that action, and the Court adopted the terms of the settlement agreement through a consent decree. Consent Decree, Metro. Omaha Prop. Owners Ass'n, Inc. v. City of Omaha (MOPOA I), No. 8:13-cv-230-LSC-FG3 (D. Neb. Mar. 4, 2015), ECF No. 36 (incorporating the terms of the Settlement Agreement & Release, ECF No. 35-2). The parties to the Consent Decree agreed to certain amendments of the Omaha Municipal Code and established standard operating procedures which were to serve as the official policies of the City's Permits and Inspection Division.

On November 17, 2015, the City adopted the Vacant and Abandoned Property Ordinance (VAPO), Omaha, Neb., Code §§ 48-141 to 48-162. The VAPO went into effect December 2, 2015. The stated purpose of the VAPO is to "establish a mechanism to protect residential and non-residential neighborhoods from becoming blighted through the lack of maintenance and security of abandoned properties . . . ." Omaha, Neb., Code § 48-142. The VAPO authorizes the Superintendent of the City's Permits and Inspection Division to investigate properties that may be abandoned, vacant, or neglected, as defined by the VAPO,1 and to notify the responsible party2 of its obligation to register theproperty under the VAPO. Omaha, Neb., Code §§ 48-145, 48-148. A responsible party must complete the necessary maintenance and security measures, such that the property no longer requires registration, within thirty days of receiving notice from the City or register the property pursuant to the VAPO. Omaha, Neb., Code § 48-148. A registration fee of $500, payable by the responsible party, is due at the time of registration as well as an additional $500 for each 90-day period during which the property is registered. Omaha, Neb., Code § 48-149.

Plaintiff Roosevelt Lee is an African-American male who resides in and owns real property in Omaha, Nebraska. Lee is a member of MOPOA. Lee owns rental property in Omaha. In or around 2018, Lee's property was registered as abandoned and/or vacant under the VAPO. The City did not provide Lee with notice prior to his registration, give him an opportunity to cure, or permit him to appeal or contest the registration.

On August 6, 2019, Plaintiffs brought this action, on behalf of themselves and a putative class, alleging seven claims for relief. Compl., ECF No. 1. On September 27, 2019, Defendants filed a Motion to Dismiss, ECF No. 14, seeking dismissal of Plaintiffs' action with prejudice.


A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). To satisfy this requirement, a plaintiff must plead "enough facts to state a claim to relief that is plausible on its face." Corrado v. Life Inv'rs Ins. Co. of Am., 804 F.3d 915, 917 (8th Cir. 2015) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonableinference that the defendant is liable for the misconduct alleged." Barton v. Taber, 820 F.3d 958, 964 (8th Cir. 2016) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Zink v. Lombardi, 783 F.3d 1089, 1098 (8th Cir. 2015) (quoting Iqbal, 556 U.S. at 678), cert. denied, 135 S. Ct. 2941 (2015). The complaint's factual allegations must be "sufficient to 'raise a right to relief above the speculative level.'" McDonough v. Anoka Cty., 799 F.3d 931, 946 (8th Cir. 2015) (quoting Twombly, 550 U.S. at 555). The Court must accept factual allegations as true, but it is not required to accept any "legal conclusion couched as a factual allegation." Brown v. Green Tree Servicing LLC, 820 F.3d 371, 373 (8th Cir. 2016) (quoting Iqbal, 556 U.S. at 678). Thus, "[a] pleading that offers 'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action will not do.'" Ash v. Anderson Merchandisers, LLC, 799 F.3d 957, 960 (8th Cir. 2015) (quoting Iqbal, 556 U.S. at 678), cert. denied, 136 S. Ct. 804 (2016).

On a motion to dismiss, courts must rule "on the assumption that all the allegations in the complaint are true," and "a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and 'that a recovery is very remote and unlikely.'" Twombly, 550 U.S. at 555 & 556 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). "Determining whether a complaint states a plausible claim for relief . . . [is] a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Mickelson v. Cty. of Ramsey, 823 F.3d 918, 923 (8th Cir. 2016) (alteration in original) (quoting Iqbal, 556 U.S. at 679).


Plaintiffs allege, on behalf of themselves and a putative class, seven claims for relief arising out of the City's enactment of the VAPO. Plaintiffs generally allege that these claims are brought under 42 U.S.C. §§ 1981-1983, 1985, 3613; the Fourth, Fifth, and Fourteenth Amendments to the United States Constitution; and the Court's inherent power to enforce its own orders, judgments, and decrees. Plaintiffs also generally allege that Defendants should be held liable both in their individual and official capacities as co-conspirators. Plaintiffs allege the VAPO constitutes a breach of the Consent Decree, is an unlawful and unconstitutional tax, violates the Fair Housing Act, is unconstitutional, deprives Plaintiffs of procedural due process, and constitutes an unlawful taking without just compensation.

Defendants argue that the Complaint does not give sufficient notice to the individual plaintiffs of the claims against them. Defendants further argue that Plaintiffs allege only conclusory legal allegations and bring every conceivable claim against every conceivable defendant in a "kitchen sink" or "shotgun" complaint.

I. "Kitchen Sink" Complaint

Rule 8 of the Federal Rules of Civil Procedure commands that a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a). "District courts in the Eighth Circuit, including this Court, have 'criticized the filing of "kitchen sink" or "shotgun" complaints—complaints in which a plaintiff brings every conceivable claim against every conceivable defendant.'" Harrington v. Strong, 363 F. Supp. 3d 984, 993 n.5 (D. Neb. 2019) (quoting Gurman v. Metro. Hous. & Redevelopment Auth., 842 F. Supp. 2d 1151, 1153 (D. Minn. 2011)). "It is the plaintiff's burden, under both Rule 8 and Rule 11, to reasonably investigate their claims, to researchthe relevant law, to plead only viable claims, and to plead those claims concisely and clearly, so that a defendant can readily respond to them and a court can readily resolve them." Id. (quoting Gurman, 842 F. Supp. 2d at 1153).

A complaint must also, "at a minimum be sufficient to give the defendant notice of the claim." Tatum v. Iowa, 822 F.2d 808, 810 (8th Cir. 1987) (per curiam) (affirming district court's dismissal of a complaint for plaintiff's failure to relate with specificity how each of the defendants were involved in his claim (citing Conley v. Gibson, 355 U.S. 41, 48 (1957))). Defendants argue the Complaint fails to provide them with adequate notice to respond to the claims against them.

A. Claims Against Individual Defendants

"Claims against individuals in their official capacities are equivalent to claims against the entity for which they work . . . . Personal capacity claims, on the other hand, are those which allege personal liability for individual actions by officials in the course of their duties . . . ." Gorman v. Bartch, 152 F.3d 907, 914 (8th Cir. 1998) (citing Hafer v. Melo, 502 U.S. 21, 24-27 (1991)); see also Elder-Keep v. Aksamit, 460 F.3d 979, 986 (8th Cir. 2006) ("A suit against a public official in his official capacity is actually a suit against the entity for which the official is an agent." (quoting Kentucky v. Graham, 473 U.S. 159, 165 (1985))).

Plaintiffs allege generally that Mayor Stothert, Superintendent Davis, City Attorney Kratz, and unknown Jane and John Does should be held liable in their official and individual capacities. Claims against the individual defendants in their official capacities are redundant because the City of Omaha is a defendant in this case. The Plaintiffs do not allege which actions by which Defendants relate to their claims. The Complaint doesnot give Defendants sufficient notice or...

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