Scott Family Props., LP v. Mo. Highway & Transp. Comm'n

Decision Date03 June 2016
Docket NumberCase No. 4:16-CV-263 (CEJ)
Citation190 F.Supp.3d 864
Parties Scott Family Properties, LP, Plaintiff, v. Missouri Highway and Transportation Commission, et al., Defendants.
CourtU.S. District Court — Eastern District of Missouri

Timothy E. Hayes, Timothy E. Hayes and Associates, St. Louis, MO, for Plaintiff.

Adam S. Brown, Missouri Department of Transportation, Jefferson City, MO, Peter J. Dunne, Robert T. Plunkert, Pitzer

Snodgrass, P.C., St. Louis, MO, for Defendants.



This matter is before the Court on defendants' motion to dismiss plaintiff's amended complaint for lack of subject matter jurisdiction and for failure to state a claim for relief, pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6). Plaintiff has filed a response in opposition and the issues are fully briefed.

I. Background

Plaintiff Scott Family Properties, LP, is the owner of an office building located adjacent to Interstate 64 in Chesterfield, Missouri. In late 2015, the Missouri Highway and Transportation Commission built a sound wall between the office building and the highway. Plaintiff alleges that the Commission failed to provide it with notice of the proposed sound wall as required by federal and state regulations. Plaintiff also alleges that the sound wall impairs its ability to attract tenants and has resulted in a $5 million reduction in the value of the building. Plaintiff further alleges that the Commission has refused to remove the sound wall or pay it just compensation. Plaintiff finally alleges that its rights to procedural due process and equal protection under the state and federal constitutions were violated.

Plaintiff filed suit against the Commission in state court, asserting both state law and federal claims. The Commission timely removed the case to this Court pursuant to federal question jurisdiction. After removal, plaintiff amended its complaint to add the individual commissioners, in their official capacities, as defendants.

In Count I of the amended complaint, plaintiff asserts a claim against the Commission for inverse condemnation based on private nuisance and for damages in the amount of $5 million. In Counts II and III, plaintiff asserts claims against the commissioners for deprivation of due process and equal protection. Plaintiff seeks an order directing the commissioners to remove the sound wall in front of its building, together with attorney's fees and expenses.

II. Legal Standard

"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) (citingOsborn v. United States, 918 F.2d 724, 729 n. 6 (8th Cir.1990) ). In this case, defendants assert a facial challenge based on immunity and failure to exhaust available state remedies. In a facial challenge to jurisdiction, all of the factual allegations concerning jurisdiction are presumed to be true and the motion is successful if the plaintiff fails to allege an element necessary for subject matter jurisdiction. Id.

The purpose of a motion to dismiss under Rule 12(b)(6) is to test the legal sufficiency of the complaint. Fed. R. Civ. P. 12(b)(6). The factual allegations of a complaint are assumed true and construed in favor of the plaintiff, "even if it strikes a savvy judge that actual proof of those facts is improbable." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (citing Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508 n. 1, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002) ); Neitzke v. Williams, 490 U.S. 319, 327, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989) (" Rule 12(b)(6) does not countenance...dismissals based on a judge's disbelief of a complaint's factual allegations."); Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974) (stating that a well-pleaded complaint may proceed even if it appears "that a recovery is very remote and unlikely"). The issue is not whether the plaintiff will ultimately prevail, but whether the plaintiff is entitled to present evidence in support of his claim. Id. A viable complaint must include "enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570, 127 S.Ct. 1955 ; seeid. at 563, 127 S.Ct. 1955 (stating that the "no set of facts" language in Conley v. Gibson, 355 U.S. 41, 45–46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957), "has earned its retirement"); see alsoAshcroft v. Iqbal, 556 U.S. 662, 678–84, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (holding that the pleading standard set forth in Twombly applies to all civil actions). "Factual allegations must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555, 127 S.Ct. 1955.

III. Discussion
A. Count I — Inverse Condemnation

Under Missouri law, inverse condemnation is the exclusive remedy when private property is taken or damaged without compensation as a result of a nuisance operated by an entity that has the power of eminent domain. Miller v. City of Wentzville, 371 S.W.3d 54, 57 (Mo.Ct.App.2012) (citations omitted). The property owner need not show an actual taking of property, but "must plead and prove an invasion or appropriation of some valuable property right which the landowner has to the legal and proper use of his property, which invasion or appropriation directly and specially affects the landowner to his injury." Dynasty Home, L.C. v. Pub. Water Supply Dist. No. 3 of Franklin Cty., Missouri, 453 S.W.3d 876, 879 (Mo.Ct.App.2015) ; Heuer v. City of Cape Girardeau, 370 S.W.3d 903, 913–14 (Mo.Ct.App.2012).

The Commission first argues that it is immune from suit under the Eleventh Amendment which generally bars suits by private citizens against a state in federal court. Balogh v. Lombardi, 816 F.3d 536, 544, (8th Cir.2016). Eleventh Amendment immunity extends to arms of the state, including the Commission. Hall v. Missouri Highway & Transp. Comm'n, 995 F.Supp. 1001, 1006 (E.D.Mo.1998). However, a state remains free to waive its Eleventh Amendment protection from suit in federal court. Lapides v. Board of Regents of University System of Georgia, 535 U.S. 613, 618, 122 S.Ct. 1640, 152 L.Ed.2d 806 (2002). Plaintiff argues that the Commission has waived its immunity.

In Lapides, the Supreme Court held that a state waives Eleventh Amendment immunity by removing a case to federal court. The Supreme Court reasoned that it "would be anomalous or inconsistent" to permit a state both to invoke federal jurisdiction through removal and to claim Eleventh Amendment immunity from federal jurisdiction. Id. at 619, 122 S.Ct. 1640. Permitting the states "to freely assert[ ] both claims in the same case could generate seriously unfair results." Id. However, the holding in Lapides is limited "to the context of state-law claims, in respect to which the State has expressly waived immunity from state-court proceedings." Id. at 617–18, 122 S.Ct. 1640 ; see alsoKruger v. Nebraska, 820 F.3d 295 (8th Cir.2016) (Lapides decision "does not necessarily apply to federal claims or state claims in which state has not waived immunity in state courts").

As defendants note, judges in this district applying Lapides have held that Missouri does not waive its Eleventh Amendment immunity by removing state-law tort claims to federal court. SeeFranklin v. State of Missouri, 4:15CV1283 NCC, 2016 WL 366799, at *3 (E.D.Mo. Jan. 29, 2016) (finding state had immunity against battery claim); Belkin v. Casino One Corp., No. 4:14CV00452 ERW, 2014 WL 1727896, at *4 (E.D.Mo. May 1, 2014) (state agency did not waive its Eleventh Amendment immunity over tort claims "through the simple act of removing to federal court, because under the facts of this case, the narrow holding of Lapides does not apply"); Lacy v. Gray, No. 4:13CV370 RWS, 2013 WL 3766567, at *2 (E.D.Mo. July 16, 2013) (rejecting argument under Lapides that state entity waived immunity over state law claims by removing action); Johnson v. Board of Police Comm'rs, 4:06CV605 CDP, 2007 WL 1629909, at *3–4 (E.D.Mo. June 4, 2007) (finding that board retains Eleventh Amendment immunity for plaintiff's assault and battery claims). These cases are entirely consistent with Lapides because, under Missouri law, state entities are entitled to sovereign immunity from all tort claims, with exceptions for claims arising from motor vehicle accidents or dangerous conditions of land. Mo. Rev. Stat. § 537.600.1 ; Southers v. City of Farmington, 263 S.W.3d 603, 609 (Mo.2008).

The inverse condemnation claim in Count I is not a tort claim. Under Missouri law, inverse condemnation claims arise from Article I, Section 26 of the Missouri Constitution, which provides that "private property shall not be taken or damaged for public use without just compensation." The Missouri Supreme Court has observed that inverse condemnation claims are not subject to sovereign immunity. SeeTierney v. Planned Indus. Expansion Auth. of Kansas City, 742 S.W.2d 146, 155 (Mo.1987) (inverse condemnation actions "may be maintained in spite of sovereign immunity to fulfill the constitutional command that property not be taken without just compensation"); see alsoHeins Implement Co. v. Missouri Highway & Transp. Comm'n, 859 S.W.2d 681, 694 (Mo.1993), abrogated on other grounds bySouthers v. City of Farmington, 263 S.W.3d 603 (Mo.2008) (trial court properly dismissed nuisance and negligence claims pursuant to sovereign immunity while retaining inverse condemnation claims). Had this case remained in state court, the Commission would not have been entitled to assert sovereign immunity as a defense to plaintiff's inverse condemnation claim. Under the reasoning of Lapides, thus, it would be unfair to allow the Commission to remove this case to federal court and obtain the benefit of Eleventh Amendment immunity. The Court finds that the Commission waived its ...

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