Moore v. Kagler
| Decision Date | 09 October 2014 |
| Docket Number | Civil Action No. 5:14-CV-33 |
| Court | U.S. District Court — Northern District of West Virginia |
| Parties | HARRY W. MOORE, SR., Plaintiff, v. ROBERT W. KAGLER, personally and as Deputy Commissioner of Delinquent and Non-Entered Lands of Marshall County, West Virginia, MARSHALL COUNTY COMMISSION, a political subdivision, HAYHURST COMPANY, a Florida Partnership, RONALD HAYHURST, personally and as President of Hayhurst Company and President of Chestnut Holdings, Inc., a Florida holding company; CHESTNUT HOLDINGS, INC., a Florida holding company, and the STATE OF WEST VIRGINIA, Defendants. |
(BAILEY)
Currently pending before this Court is Defendant Robert W. Kagler's Motion to Dismiss Amended Complaint [Doc. 31] and the Motion of Defendants Hayhurst Company, Ronald Hayhurst, and Chestnut Holdings, Inc. to Dismiss Amended Complaint Pursuant to Rule 12(b)(6) [Doc. 33]. The parties filed their respective responses and replies, and thismatter is now ripe for decision. For the reasons set out below, this Court DENIES the Motions to Dismiss [Docs. 31 & 33].
The Amended Complaint [Doc. 30] contains the following allegations. In 1965, Everett F. Moore passed away, and his estate was devised according to his will, which left the residual to his five nieces and nephews, including plaintiff Harry W. Moore. (Id. at ¶¶ 23-24). The nieces and nephews were each bequeathed 1/5 interests in several realty and mineral right interests. (Id. at ¶ 25). The heirs each conveyed their respective 1/5 interests to plaintiff Harry Moore at various times in 1997, 1998, and 2004. (Id. at ¶¶ 27-29). Each deed was recorded in the office of the Marshall County Commission. (Id.).
The plaintiff alleges that no taxes were assessed to the property, yet the parcels of land were identified as delinquent on taxes. (Id. at ¶ 34). Neither Marshall County through defendant Robert W. Kagler, Deputy Commissioner of Delinquent and Non-entered Lands of Marshall County, nor the Sheriff provided notice of delinquency to the plaintiff. (Id. at ¶ 35).
A tax lien was placed on one of the plaintiff's properties, and at some point thereafter, Tri-County Oil & Gas acquired the same. (Id. at ¶ 37). Subsequently, either defendant Kagler or the Sheriff published notice of one right of redemption for one of the properties in the Moundsville Echo newspaper, and plaintiff Moore redeemed this property for approximately $2,000.00. (Id. at ¶¶ 38-39).
Ten other of the plaintiff's interests in various real property or oil and gas rights, which are listed in the Amended Complaint, were assessed a nominal tax. (Id. at ¶ 45 A-J). Plaintiff did not receive a tax bill, and therefore, the taxes went unpaid, and tax liens were placed on the subject properties. (Id. at ¶ 48). Subsequently, the interests were purchased by the Hayhurst defendants. The plaintiff alleges that the tax liens sold by defendant Kagler were never placed on the assessor's land book, and tax tickets were never issued. (Id.). Plaintiff further alleges that when the deed was first recorded in 1997, defendant Kagler, in concurrence with the Hayhurst defendants, undertook actions to avoid placement on the assessor's land book for taxation in order to allow five years to pass. (Id. at ¶ 49). The five years' delinquency provided the basis for defendant Kagler to have the property assessed and sold. (Id. at ¶ 50). No notice of the assessment or delinquency was provided to the plaintiff or otherwise published in the newspaper. (Id. at ¶ 51). Rather, notices of the right to redeem the properties from sale were delivered to Edward Moore, one of the five heirs who conveyed his interest to Harry Moore in 1997. (Id. at ¶ 74). Plaintiff alleges he became aware that his property had been sold in late May or early June 2013, when he expressed interest in selling it. (Id. at ¶¶ 77-78).
Plaintiff alleges defendant Kagler was acting as an agent for the Hayhurst defendants while working in his capacity as Deputy Commissioner as well as after his employment with the Commission ended. (Id. at ¶¶ 114-115). Plaintiff alleges that during this time, Deputy Kagler instructed Marshall County employees to exonerate all records of taxes owed by defendant Hayhurst Company. (Id. at ¶¶ 117-118). Exoneration requires approval from the prosecutor's office, where defendant was also employed as an Assistant Prosecuting Attorney. (Id. at ¶ 119). As part of the scheme alleged, Kagler, acting onbehalf of himself and the Hayhurst defendants, replaced land owners' names with the Hayhurst Company after the sale and before the expiration of the redemption period. (Id. at ¶ 122). Such would result in the Hayhurst defendants receiving the notice of sale rather than the true owners. (Id. at ¶ 123).
The plaintiff initiated this case in this Court on March 11, 2014 [Doc. 1]. Plaintiff filed his Amended Complaint [Doc. 30] on June 13, 2014, alleging violations of Fourteenth Amendment Due Process (Count I); Racketeering (Count II); Conspiracy (Count III); Fraud (Count IV); and Negligence (Count V).
The defendants have moved to dismiss the entire Amended Complaint. See Doc. 33. Defendants assert that this action is barred by the applicable statutes of limitation; that defendant Kagler is protected in his official capacity by the Eleventh Amendment as well as qualified immunity; and there exists no private cause of action for violations of 18 U.S.C. §§ 1341 and 1343. See Doc. 31.
A complaint must be dismissed if it does not allege Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008). When reviewing a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, the Court must assume all of the allegations to be true, must resolve all doubts and inferences in favor of the plaintiffs, and must view the allegations in a light mostfavorable to the plaintiffs. Edwards v. City of Goldsboro, 178 F.3d 231, 243-44 (4th Cir. 1999).
When rendering its decision, the Court should consider only the allegations contained in the Complaint, the exhibits to the Complaint, matters of public record, and other similar materials that are subject to judicial notice. Anheuser-Busch, Inc. v. Schmoke, 63 F.3d 1305, 1312 (4th Cir. 1995). In Twombly, the Supreme Court, noting that "a plaintiff's obligation to provide the 'grounds' of his 'entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do," id. at 1964-65, upheld the dismissal of a complaint where the plaintiffs did not "nudge[ ] their claims across the line from conceivable to plausible." Id. at 1974.
A. Statute of Limitations
The parties agree that the under Dunn v. Rockwell, 225 W. Va. 43, 689 S.E.2d 225 (2009), this Court must apply a five-step analysis to determine whether an action such as this is time-barred. In Dunn, the Supreme Court of Appeals stated:
A five-step analysis should be applied to determine whether a cause of action is time-barred. First, the court should identify the applicable statute of limitation for each cause of action. Second, the court (or, if questions of material fact exist, the jury) should identify when the requisite elements of the cause of action occurred. Third, the discovery rule should be applied to determine when the statute of limitation began to run by determining when the plaintiff knew, or by the exercise of reasonable diligence should haveknown, of the elements of a possible cause of action, as set forth in Syllabus Point 4 of Gaither v. City Hosp., Inc., 199 W.Va. 706, 487 S.E.2d 901 (1997). Fourth, if the plaintiff is not entitled to the benefit of the discovery rule, then determine whether the defendant fraudulently concealed facts that prevented the plaintiff from discovering or pursuing the cause of action. Whenever a plaintiff is able to show that the defendant fraudulently concealed facts which prevented the plaintiff from discovering or pursuing the potential cause of action, the statute of limitation is tolled. And fifth, the court or the jury should determine if the statute of limitation period was arrested by some other tolling doctrine. Only the first step is purely a question of law; the resolution of steps two through five will generally involve questions of material fact that will need to be resolved by the trier of fact.
"Generally, the statute of limitations begins to run when a tort occurs; however, under the 'discovery rule,' the statute of limitations is tolled until a claimant knows or by reasonable diligence should know of his claim." Gaither, 199 W. Va. at 711, 487 S.E.2d at 906. The discovery rule recognizes "the inherent unfairness of barring a claim when a party's cause of action could not have been recognized until after the ordinarily applicable period of limitation." Harris v. Jones, 209 W. Va. 557, 562, 550 S.E.2d 93, 98 (2001). The discovery rule is "generally applicable to all torts, unless there is a clear statutory prohibition of its application." Syl. Pt. 2, Cart v. Marcum, 188 W. Va. 241, 423 S.E.2d 644 (1992).
Thus, "the statute of limitations begins to run when the plaintiff knows, or by the exercise of reasonable diligence, should know (1) that the plaintiff has been injured, (2) the identity of the entity who owed the plaintiff a duty to act with due care, and who may have engaged in conduct that breached that duty, and (3) that the conduct of that entity has a causal relation to the injury." Syl. Pt. 4, Gaither, 199 W. Va. 706, 487 S.E.2d 901. Further, ...
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