Shooting Point, L.L.C. v. Cumming

• Decision Date: 20 December 2002
• Docket Number: No. 2:02CV193.,2:02CV193.
• Citation: 238 F.Supp.2d 729
• Parties: SHOOTING POINT, L.L.C., et al., Plaintiffs, v. W.M. CUMMING, Jr., John W. Wescoat, Suzanne Wescoat, John W. Wescoat, Jr., and Curtis H. Jones, Jr., Defendants.
• Court: U.S. District Court — Eastern District of Virginia

238 F.Supp.2d 729

SHOOTING POINT, L.L.C., et al., Plaintiffs, v. W.M. CUMMING, Jr., John W. Wescoat, Suzanne Wescoat, John W. Wescoat, Jr., and Curtis H. Jones, Jr., Defendants.

No. 2:02CV193.

United States District Court, E.D. Virginia, Norfolk Division.

December 20, 2002.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Andrew M. Sacks, Esquire, Sacks & Sacks, Norfolk, VA, for Plaintiff.

James C. Stuchell, Assistant Attorney General, Richmond, VA, for Defendant W.M. Cumming, Jr.

James A. Cales, III, Esquire, Furniss, Davis, Rashkind & Saunders, Norfolk, VA, for Wescoat Defendants and Defendant Jones.

MEMORANDUM OPINION AND FINAL ORDER

REBECCA BEACH SMITH, District Judge.

Plaintiffs, Shooting Point L.L.C., Lemoin B. Cree, Marlene Cree, Nicole Killebrew, Montaigne Cree, L. Barrett Cree, and Shooting Point Property Owners Association, Inc. bring this action against defendants, W.M. Cumming, Jr., John W. Wescoat, Suzanne Wescoat, John W. Wescoat, Jr., and Curtis H. Jones, Jr., alleging violations of federal and constitutional rights, pursuant to 42 U.S.C. §§ 1983 and 1985 and various state law claims. This matter is currently before the court on the motion by defendants to dismiss the action, pursuant to Federal Rules of Civil Procedure 12(b)(1) and (6). Additionally before the court is defendant W.M. Cumming's motion for judgment on the pleadings pursuant to Rule 12(c).

I. FACTUAL AND PROCEDURAL HISTORY

This case involves a private property dispute in Northampton County, on the Eastern Shore of Virginia, between adjoining landowners with different visions for the development of the land. Plaintiffs are individuals and entities that own a parcel of land, comprising roughly 176 acres, known as Shooting Point.¹ The Shooting Point property is surrounded by a 900 acre tract of land owned by defendants John and Suzanne Wescoat (the "Wescoat property"). The Wescoat property is subject to a fifteen-foot wide easement benefitting the Shooting Point property for the purpose of ingress and egress to state highway Route 622. The easement, granted by deed in 1974, is a non-exclusive easement to be used by both the servient and dominant estates.

On December 29, 1999, plaintiff Shooting Point, L.L.C. recorded a plat, approved by Northampton County, which divided Shooting Point into eighteen separate parcels for sale to private property owners. Many of the lots have already been sold or placed under contract. According to the complaint, the Wescoats, unhappy with the plaintiffs' plans for the property, are attempting to restrict access to the easement, hoping to cause plaintiffs to abandon the property and sell it to the Wescoats at a depressed price. (Compl.¶¶ 72-76).

In January of 2000, the Wescoats contacted defendant W.M. Cumming ("Cumming"), the local Resident Engineer for the Virginia Department of Transportation ("VDOT"), as to whether VDOT could revoke the plat. Upon learning revocation was not feasible, Suzanne Wescoat telephoned Cumming personally, asking for his assistance in enforcing the VDOT commercial entrance regulations against the plaintiffs. (Compl.¶ 87).² According to plaintiffs, however, Northampton County officials had a longstanding policy of not requiring these permits for existing private roads serving subdivisions. (Compl.¶ 79). Plaintiffs allege that there are hundreds of similarly situated existing state road entrances to private roads serving subdivisions that were not required to obtain a permit. (Compl.¶¶ 79-81).

On January 13, 2000, John Wescoat and John Wescoat, Jr., sent a letter to current owners of land in Shooting Point, as well as prospective landowners allegedly containing knowing misrepresentations, exaggerations and threats of legal action designed to interfere with plaintiffs' ability to sell parcels of land. (Compl.¶ 87). The following day, Cumming asked one of his employees, K.M. Wright, to write a letter to Sandra Benson, Director of Planning and Zoning for Northampton County, advising her that VDOT would require Shooting Point to obtain an entrance permit. According to plaintiffs, Cumming also provided knowingly erroneous information to VDOT headquarters in order to discredit Lemoin B. Cree. Id.

On February 16, 2000, the Wescoats filed suit in the Circuit Court of Northampton County, seeking to enjoin plaintiffs' proposed use of Shooting Point. They argued that converting Shooting Point into a subdivision was not a reasonable use of the parcel; that the proposed use of Shooting Point would overburden the fifteen foot wide easement; and that such use of the easement required Shooting Point to obtain a commercial entrance permit, pursuant to Virginia law. (Wescoats' Bill of Complaint, Feb. 16, 2000, Circuit Court of Northampton County, attached as Exhibit A to Motion to Dismiss).

On March 23, 2000, Cumming testified at a hearing in the case that he would require plaintiffs to apply for an entrance permit, even though he had not made a study of the property. Cumming also testified that he normally reviewed plats with private roads connected to state roads but, according to plaintiffs, he had previously informed VDOT that VDOT had no jurisdiction over private roads. Id.

After the hearing, but before the state judge visited the site, defendant Curtis Jones destroyed the vegetation and shrubbery in the state right-of-way on each side of Route 622 near its connection with the Shooting Point easement. His alleged goal was to mislead the court into believing that the public road was larger than it actually was. Id.

In the midst of the proceedings, plaintiffs applied for a commercial entrance permit from Cumming. Plaintiffs contend that Cumming resisted issuing the permit, in bad faith, as long as he could. On August 14, 2000, Cumming issued plaintiffs a permit for Shooting Point. Subsequently, the Wescoats filed a second action, seeking a declaratory judgment that the permit was unlawfully issued because the regulation requirements were not met. (Wescoats' Bill for Declaratory Judgment, Circuit Court for Northampton County, attached as Exhibit B to Motion to Dismiss).

The two suits were consolidated for trial. The court (1) determined that the easement existed; (2) established the specific location of the easement; (3) held that the use of Shooting Point as a subdivision would not overburden the easement; (4) determined that the commercial entrance permit regulation applied to the Shooting Point Subdivision; and (5) ruled that the permit issued to the plaintiffs by Cumming was invalid as a matter of law because the road did not meet the statutory requirements for an entrance permit. Both parties have appealed to the Supreme Court of Virginia.³

Despite the pending appeal, on March 25, 2002, plaintiffs filed the instant action in federal court, pursuant to 42 U.S.C. §§ 1983 and 1985, for alleged violations of rights guaranteed by the Fifth and Fourteenth Amendments. Count One alleges that all defendants participated in a conspiracy to deprive the plaintiffs of their federal civil and constitutional rights. Counts Two through Five allege that defendant Cumming, in his individual capacity, deprived the plaintiffs of their rights to equal protection under the Fourteenth Amendment, to just compensation under the Fifth Amendment, and to procedural and substantive due process under the Fourteenth Amendment. Count Six comprises various supplemental state law claims arising out of the same incidents.

On July 29, 2002, defendant Cumming filed an answer, which contained an affirmative defense of failure to state a claim. On the same day, the other defendants, filed a motion to dismiss. On August 12, 2002, defendant Cumming responded to the other defendants' motion to dismiss, joining their arguments. On October 4, 2002, defendant Cumming filed a motion for judgment on the pleadings. Plaintiffs have replied to these motions and the defendants have submitted rebuttals.⁴ Because the issues have been extensively, and exhaustively, briefed by all the parties, the court has determined that a hearing is unnecessary. The matter is therefore ripe for review.

II. STANDARD OF REVIEW

There are "two critically different ways in which to present a motion to dismiss for lack of subject matter jurisdiction." Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir.1982); Fed.R.Civ.P. 12(b)(1). The attack to jurisdiction may be based upon a facial deficiency in the pleadings, or on facts that exist separately from the pleadings. The burden of establishing jurisdiction rests with the plaintiff. Id.

A motion to dismiss, pursuant to Rule 12(b)(6), should not be granted unless it appears to a certainty that the nonmoving party cannot prove any set of facts in support of its claim that would entitle it to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Labram v. Havel, 43 F.3d 918, 920 (4th Cir. 1995). The standard governing Rule 12(b)(6) dismissal motions requires that a court reviewing such a motion accept the complaint's factual allegations as true and view the allegations in a light most favorable to the nonmoving party. Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 164, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993); GE Inv. Private Placement Partners II v. Parker, 247 F.3d 543, 548 (4th Cir.2001).

As a general rule, in the context of a motion to dismiss under Rule 12(b), the court may not consider matters outside the pleadings without converting the motion to dismiss into a motion for summary judgment. Gay v. Wall, 761 F.2d 175, 178 (4th Cir.1985). However, the court may consider dispositive documents that are either attached to, or referenced in, the complaint. Moore v. Flagstar Bank, et al., 6 F.Supp.2d 496 (E.D.Va.1997); see also Papasan v. Allain, 478 U.S. 265, 268 n. 1, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986) (noting that the public record could be considered on motion to dismiss); Anheuser-Busch, Inc. v. Schmoke, 63 F.3d 1305,...