Palmore v. City of Pac., Case No. 4:09CV1073SNLJ.

• Decision Date: 30 March 2010
• Docket Number: Case No. 4:09CV1073SNLJ.
• Citation: 851 F.Supp.2d 1162
• Parties: Jeffrey PALMORE, et. al., Plaintiffs, v. CITY OF PACIFIC, et. al., Defendants.
• Court: U.S. District Court — Eastern District of Missouri

851 F.Supp.2d 1162

Jeffrey PALMORE, et. al., Plaintiffs,

v.CITY OF PACIFIC, et. al., Defendants.

Case No. 4:09CV1073SNLJ.

United States District Court,

E.D. Missouri,

Eastern Division.

March 30, 2010.

Joanna W. Owen, St. Louis, MO, John E. Batka, Florissant, MO, for Plaintiffs.

Talmage E. Newton, IV, James E. Godfrey, Jr., Evans and Dixon, Lawrence B. Grebel, Brown and James, P.C., St. Louis, MO, J. Christian Goeke, Law Offices of J. Christian Goeke, P.C., Clayton, MO, for Defendants.

MEMORANDUM

LIMBAUGH, District Judge.

This action was removed from the Circuit Court for Franklin County, State of Missouri on or about July 8, 2009 on grounds of subject matter jurisdiction. As the case stands presently before this Court, plaintiffs seek monetary damages for a state claim for “moneys had and received” (Count I), various constitutional violations brought pursuant to § 1983 (Count II), and a state claim for violations of the Missouri Merchandising Practices Act, §§ 407.025 et. seq. (Count III). This matter is before the Court on defendants City of Pacific and Harold Selby, City Administrator's (hereinafter referred to as the Pacific defendants) joint motion to dismiss pursuant to Rule 12(b)(1) and Rule 12(b)(6) Fed. Rules of Civil Procedure [6], filed July 15, 2009. ¹ Responsive pleadings have now all been filed and the matter is ripe for disposition.

Only Counts I and II are directed to the Pacific defendants. The Pacific defendants seek to dismiss Count I pursuant to Rule 12(b)(1) for lack of subject matter jurisdiction; and to dismiss Count II pursuant to Rule 12(b)(6) for failure to state a claim upon which relief can be granted.

Since Count II is the only count asserting federal claims, the Court will first address the viability of these claims before addressing whether the Court has subject matter jurisdiction over the state law claim of “money had and received” as contained in Count I. If the Court should determine that the federal claims, as contained in Count II, fail to survive Rule 12(b)(6) scrutiny, the Court may elect to decline to exercise supplemental jurisdiction over the state law claims of Count I (as well as Count III), making a Rule 12(b)(1) review unnecessary.

The purpose of a Rule 12(b)(6) motion to dismiss is to test the legal sufficiency of a complaint so as to eliminate those actions “which are fatally flawed in their legal premises and designed to fail, thereby sparing litigants the burden of unnecessary pretrial and trial activity.” Young v. City of St. Charles, 244 F.3d 623, 627 (8th Cir.2001)quoting Neitzke v. Williams, 490 U.S. 319, 326–27, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989). A complaint must be dismissed for failure to state a claim upon which relief can be granted if it does not plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007) (abrogating the prior “no set of facts” standard set forth in Conley v. Gibson, 355 U.S. 41, 45–46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). Courts “do not require heightened fact pleading of specifics, but only enough facts to state a claim to relief that is plausible on its face.” Id., 127 S.Ct. at 1974. A complaint must set forth factual allegations which are enough to “raise a right to relief above the speculative level.” Id., 127 S.Ct. at 1974.

In passing on a motion to dismiss, a court must view the allegations of the complaint in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); Kottschade v. City of Rochester, 319 F.3d 1038, 1040 (8th Cir.2003). While a complaint challenged by a Rule 12(b)(6) motion does not need detailed factual allegations, a plaintiff must still provide the grounds for relief, and neither “labels and conclusions” nor “a formulaic recitation of the elements of a cause of action” will suffice. Bell Atlantic Corp. v. Twombly, 127 S.Ct. at 1965 (internal citations omitted). “Although the pleading standard is liberal, the plaintiff must allege facts—not mere legal conclusions—that, if true, would support the existence of the claimed torts.” Moses.com Securities v. Comprehensive Software Systems, Inc., 406 F.3d 1052, 1062 (8th Cir.2005)citing Schaller Tel. Co. v. Golden Sky Systems, 298 F.3d 736, 740 (8th Cir.2002). In viewing the complaint in the light most favorable to the plaintiff, the court should not dismiss it merely because the court doubts that the plaintiff will be able to prove all of the necessary allegations. Bennett v. Berg, 685 F.2d 1053, 1058 (8th Cir.1982). The primary issue for a court to consider is not whether the plaintiff will ultimately prevail in the lawsuit, but whether the complaint adequately states a claim; and therefore, the plaintiff is entitled to present evidence in support of that claim. A complaint may not be dismissed based upon a district court's assessment that the plaintiff will fail to present evidentiary support for the complaint's allegations or will ultimately fail to prove one or more claims to the satisfaction of the factfinder. Bell Atlantic Corp. v. Twombly, 127 S.Ct. at 1969, n. 8;Neitzke v. Williams, 490 U.S. at 327, 109 S.Ct. 1827 (“What Rule 12(b)(6) does not countenance are dismissals based upon a judge's disbelief of a complaint's factual allegations.”).

Plaintiffs seek damages alleging that the Pacific defendants and the Bruns defendants have been conducting burial procedures in a manner contrary to local ordinance and/or charging “burial fees” beyond that mandated by local ordinance. In Count I, the plaintiffs jointly seek the return of these allegedly overpaid fees from all defendants. In Count II, plaintiff Palmore independently seeks damages, from the Pacific defendants and defendant Alan Bruns, for various constitutional violations in connection with an alleged interference with his ability to speak out at a City of Pacific Board of Alderman, an alleged refusal to allow plaintiff access to cemetery records located at the City of Pacific city hall facility, and for alleging interfering with the plaintiff's ability to conduct funeral services on June 27, 2008 in the Pacific City Cemetery.

Count II

In Count II, under § 1983, plaintiff Palmore alleges a variety of constitutional violations regarding his First Amendment free speech rights, Fourteenth Amendment due process rights, and Fourteenth Amendment equal protection rights. Firstly, plaintiff contends that beginning in October 2007 he began attending Pacific Board of Alderman meetings wherein he publically and repeatedly asserted that [defendants] were in violation of the Pacific City Code with regard to grave opening fees. He further asserts that he also, at these meetings, complained that defendant Alan Bruns did not understand the grave numbering system in the municipal cemetery and, therefore, was double-selling grave sites. As a result of these public accusations, and the filing of his earlier Small Claims Court lawsuit, plaintiff Palmore contends that he was denied immediate entrance to the municipal cemetery in order to conduct a funeral unless he signed an interment authorization. He did however enter the cemetery through another entrance and conducted the funeral. However, upon the police being called to the cemetery by defendant Bruns, Palmore ultimately signed the internment authorization. Palmore contends that the blocking of the south cemetery entrance was a violation of a Missouri statute, a violation of his due process rights because such interment authorization requirement was “not enacted into law until July 15, 2008 [eighteen (18) days after the funeral incident], a violation of his equal protection rights because he was singled out, and a violation of his right to free speech by intimidating Palmore to refrain from any further public criticism of the defendants.

Secondly, plaintiff Palmore contends that his equal protection rights were violated because he was denied access to cemetery records unless a Pacific city clerk was present, and he had submitted a “sunshine request”.

Finally, plaintiff Palmore contends that his equal protection and free speech rights were violated because he was limited to “speaking for no more than five minutes at Board of Alderman meetings, while other speakers have been allowed to speak in excess of the five minute time limit.”

Although in his complaint, plaintiff repeatedly asserts that his First Amendment free speech, and Fourteenth Amendment substantive due process and equal protection rights have been violated; he appears to backtrack in his response. In his response, he states that the defendants have “incorrectly and inaccurately” stated that his due process and equal protection claims are based on the events referenced above. Instead, he now states that “Plaintiff Palmore's Constitutional claims are based on the retaliation by the Pacific Defendants because Plaintiff Palmore spoke out at Aldermanic meetings and filed a lawsuit against the Pacific Defendants.” Document # 13, pg. 13. Furthermore, he continues to argue at great length how his First Amendment free speech rights have been violated. Thus, it would appear that plaintiff is only asserting a § 1983 First Amendment retaliation claim, and the cemetery access and cemetery records events are only set forth as support for his § 1983 First Amendment retaliation claim.

It is difficult for the Court to discern the exact substantive nature of Count II since plaintiff repeatedly argues about his due process and equal protection rights. If plaintiff were truly asserting separate § 1983 claims for violation of his due process rights, violation of his equal protection rights, and First Amendment retaliation, then such claims should have been set out in separate counts. The inartful pleading of Count II unfortunately muddies the waters in which plaintiff is asserting a constitutional claim. Thus, the Court will err on the side of...