Noble v. Am. Nat'l Prop.

• Decision Date: 26 February 2018
• Docket Number: CIV. 17–5088–JLV
• Parties: Marty NOBLE and Holli Telford, Plaintiffs, v. AMERICAN NATIONAL PROPERTY & CASUALTY INSURANCE CO.; Boardwalk Property Management Co.; Kevin West; Lehi Oasis, LLC; David L Parker; Austin B. Cales; Jared Eldrige in his official capacity; Larry Deiter in his official capacity as Director for the Division of Insurance for the state of South Dakota; Robert J. Poulsen and Poulsen & Skousen, Defendants.
• Court: U.S. District Court — District of South Dakota

297 F.Supp.3d 998

Marty NOBLE and Holli Telford, Plaintiffs,

v.AMERICAN NATIONAL PROPERTY & CASUALTY INSURANCE CO.; Boardwalk Property Management Co.; Kevin West; Lehi Oasis, LLC; David L Parker; Austin B. Cales; Jared Eldrige in his official capacity; Larry Deiter in his official capacity as Director for the Division of Insurance for the state of South Dakota; Robert J. Poulsen and Poulsen & Skousen, Defendants.

CIV. 17–5088–JLV

United States District Court, D. South Dakota, Western Division.

Signed February 26, 2018

Marty Noble, Oelrichs, SD, pro se.

Holli Telford, Oelrichs, SD, pro se.

Gregory J. Sperlich, Roger A. Tellinghuisen, DeMersseman Jensen Tellinghuisen & Huffman, LLP, Rebecca L. Mann, Gunderson, Palmer, Nelson & Ashmore, LLP, Clayton E. Grueb, Rapid City, SD, Darin B. Goff, Utah Office of the Attorney General, Salt Lake City, UT, Richard M. Williams, Attorney General of South Dakota, Pierre, SD, for Defendants.

ORDER

JEFFREY L. VIKEN, CHIEF JUDGE

INTRODUCTION

Plaintiffs Holli Telford and Marty Noble, appearing pro se , filed this action against the defendants. (Docket 8). The verified amended complaint includes wide-ranging allegations, and plaintiffs contend a variety of federal and state laws support their case. Id. All defendants filed motions to dismiss. Defendant Jared Eldridge ("Judge Eldridge"), a Utah state court judge, submitted a motion to dismiss based on Rules 12(b)(1), (4) & (6) of the Federal Rules of Civil Procedure. (Docket 39). Defendant American National Property & Casualty Insurance Co. ("ANPC") moved to dismiss under Rule 12(b)(6). (Docket 41). Defendants Boardwalk Property Management Company, Kevin West, Austin Cales, David Park, Lehi Oassi LLC, Robert J. Poulsen and Poulsen & Skousen ("Boardwalk defendants") filed a motion to dismiss based on Rules 12(b)(2) & (6). (Docket 43). Defendant Larry Deiter, Director for the South Dakota Division of Insurance, ("Director Deiter"), moved to dismiss the claims against him via Rules 12(b)(1) & (6). (Docket 72). Several filings from plaintiffs and defendants relate to service and entries of default. See, e.g., Dockets 31, 37 & 53. Plaintiffs filed various motions in response to defendants' filings. (Dockets 37, 48, 62 & 67). The court evaluates each pending matter in turn before addressing other issues.

LEGAL STANDARDS

"In order to properly dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), the complaint must be successfully challenged on its face or on the factual truthfulness of its averments." Titus v. Sullivan, 4 F.3d 590, 593 (8th Cir. 1993) (internal citation omitted). "In a facial challenge to jurisdiction, all of the factual allegations concerning jurisdiction are presumed to be true and the motion [to dismiss] is successful if the plaintiff fails to allege an element necessary for subject matter jurisdiction." Id. (internal citation omitted). "Jurisdictional issues, whether they involve questions of law or of fact, are for the court to decide." Osborn v. United States, 918 F.2d 724, 729 (8th Cir. 1990). "A plaintiff has the burden of establishing subject matter jurisdiction." Jones v. Gable, 470 F.3d 1261, 1265 (8th Cir. 2006).

Under Rule 12(b)(6), a plaintiff must plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Two "working principles" underlie Rule 12(b)(6) analysis. See Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). First, courts are not required to accept as true legal conclusions "couched as ... factual allegation[s]" in the complaint. See id."[A] complaint must allege 'more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.' " Torti v. Hoag, 868 F.3d 666, 671 (8th Cir. 2017) (quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955 ). The court does, however, "take the plaintiff's factual allegations as true." Braden v. Wal–Mart Stores, Inc., 588 F.3d 585, 594 (8th Cir. 2009). Second, the plausibility standard is a "context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (citation omitted). The complaint is analyzed "as a whole, not parsed piece by piece to determine whether each allegation, in isolation, is plausible." Braden, 588 F.3d at 594. The court "will not mine a lengthy complaint searching for nuggets that might refute obvious pleading deficiencies." Neubauer v. FedEx Corp., 849 F.3d 400, 404 (8th Cir. 2017) (internal alterations and quotation marks omitted).

In applying these principles, the court must construe plaintiff's pro se complaint liberally. See Stone v. Harry, 364 F.3d 912, 914 (8th Cir. 2004). This means "that if the essence of an allegation is discernible, even though it is not pleaded with legal nicety, then the district court should construe the complaint in a way that permits the layperson's claim to be considered within the proper legal framework." Jackson v. Nixon, 747 F.3d 537, 544 (8th Cir. 2014) (internal quotation marks omitted). The complaint "still must allege sufficient facts to support the claims advanced." Stone, 364 F.3d at 914.

BACKGROUND

The amended complaint provides an array of legal foundations. (Docket 8 at pp. 17–36). Those include:

• Racketeering Influenced and Corrupt Organizations Act ("RICO");

• Fair Housing Act ("FHA");

• Electronic Funds Transfers Act ("EFTA");

• Fair Credit Reporting Act ("FCRA");

• Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908) ;

• conspiracy to violate 42 U.S.C. § 1983 ;

• covenant of good faith and fair dealing;

• covenant of quiet enjoyment;

• deceit;

• conversion;

• trespass;

• abuse of process; and

• unjust enrichment.

Id.

The first half of the amended complaint features the majority of plaintiffs' factual assertions. Id. at pp. 1–17. There are also legal conclusions throughout the first half. Id. The following recitation is not the court's findings; it is an account of most of the factual assertions in the amended complaint set forth here for the purpose of ruling on defendants' motions. Quoted portions of the amended complaint are included where helpful for capturing plaintiffs' allegations.

The court notes the facts of this case share many similarities with an action Ms. Telford brought in the Central Division of the United States District Court for the District of South Dakota. See Telford v. Dep't of Hous. & Urban Dev., No. 3:16-CV-03033, 2017 WL 1653305, at *1–4 (D.S.D. May 1, 2017). The Central Division case made "various claims against multiple defendants relating to eviction from a trailer home park in Green River, Wyoming; relating to litigation concerning the eviction in Wyoming state and federal court; relating to alleged deprivation of certain telecommunication services in Wyoming; and relating to communication with the United States Department of Housing and Urban Development (HUD) and at least one of its employees regarding their Wyoming housing situation." Id.

Turning to this case, plaintiff Telford entered into a rental contract with plaintiff Noble for Noble to reside in a mobile home located in Utah. (Docket 8 at p. 3). Noble is allegedly disabled. Id. The plaintiffs also entered into a rental contract with the owner of the mobile home park. Id. at p. 4. Part of the contract between plaintiffs and the park owner made the owner "responsible for yard care and outside maintenance activities given the tenants [sic] disabilities of brain injury, attendant seizures, and because the tenant was crippled and therefore mobility challenged." Id. A "weed tree problem" within the mobile home park developed. Id.

Eventually, this problem made it difficult for Noble to access the mobile home. Id. at p. 5. Telford sought payment from the park owner based on the tree problem. Id. at pp. 5–6. The park owner refused to pay Telford or fix the tree problem as she requested. Id. at p. 6. Plaintiffs unsuccessfully sought payment and solutions to the tree problem from parties the amended complaint refers to as "the OASIS defendants[.]" Id. at pp. 6–7.

"[T]he owners" then made Noble's lease a month-to-month arrangement and posted an eviction notice on the mobile home. Id. at pp. 7–8. Defendant Boardwalk Property Management Co. notified Telford "by text" of the forthcoming eviction action. Id. at p. 8. Plaintiffs allege the eviction notice failed to meet certain legal requirements. Id. Defendants Mr. Poulsen and Poulsen & Skousen were part of the legal team representing the parties evicting plaintiffs. Id. at pp. 9–10.

An eviction action proceeded in Utah state court before Judge Eldridge. Id. at p. 10. Plaintiffs claim the opposing legal representatives lied about Telford's history of rent payments and failed to serve plaintiffs with summary judgment filings. Id. at pp. 10–11. According to plaintiffs, Judge Eldridge conspired against them and granted summary judgment for the opposing side. Id. at pp. 11–12.

The amended complaint then switches gears and begins discussing interactions between Telford and ANPC. Id. at p. 13. In March and April of 2017, Telford obtained home and auto insurance from ANPC. Id. Telford set up her policy with ANPC so it automatically withdrew payments from her bank account. Id. at p. 14. Telford alleges ANPC overcharged her in violation of the EFTA. Id. at pp. 14–15.

In July 2017, Telford visited Noble's home in Utah and learned the tree problem had progressed, causing water line issues, damage to the home's interior and black mold. Id. at p. 15. Telford "alleges that at some time between [her] visit to the OASIS' property in July of 2017 and when OASIS posted their lease termination notice on [Noble's] dwelling's door, that OASIS and her agents conspired with [ANPC] and her agents, to fraudulently strip [Telford] of insurance coverage to properties the OASIS' [sic] defendants planned on converting under the abandonment laws." Id. at p. 16...