Elsie Glickert, et al v. The Loop Trolley Trans., etc., et al

Filing

OPINION FILED - THE COURT: Diana E. Murphy, Bobby E. Shepherd and Timothy L. Brooks AUTHORING JUDGE:Bobby E. Shepherd (PUBLISHED) [4290781] [14-2272]

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 14-2272
___________________________
Elsie Beck Glickert, an individual; Jen Rivenes Jensen, an individual; Irene
Franklin, an individual; Peter Sarandos, an individual
lllllllllllllllllllll Plaintiffs - Appellants
v.
The Loop Trolley Transportation Development District, a purported political
subdivion of the State of Missouri; The Loop Trolley Company, a Missouri
non-profit corporation
lllllllllllllllllllll Defendants - Appellees
Bi-State Development Agency of the Missouri-Illinois Metropolitan District,
doing business as Metro; CB 5421-5975 Transportation Development District, a
political subdivision of the State of Missouri
lllllllllllllllllllll Defendants
City of St. Louis, Missouri, a political subdivision of the State of Missouri; City of
University City, Missouri
lllllllllllllllllllll Defendants - Appellees
St. Louis County, Missouri; Missouri Highway and Transportation Commission;
Charlie A. Dooley, in his official capacity as a member of the Board of Directors
of the purported loop Trolley Transportation Development District; Joe Edwards,
in his official capacity as a member of the Board of Directors of the purported loop
Trolley Transportation Development District; John M. Nations, in his official
capacity as a member of the Board of Directors of the purported Loop Trolley
Transportation Development District; Francis G. Slay, in his official capacity as a

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member of the Board of Directors of the purported Loop Trolley Transportation
Development District; Shelley Welsch, in her official capacity as a member of the
Board of Directors of the purported loop Trolley Transportation Development District
lllllllllllllllllllll Defendants
Anne S. Carlson, in her capacity as a purported Trustee of the Catlin Tract
Subdivision of the City of St. Louis; John Daniel, in his capacity as a Trustee of
the Catlin Tract Subdivision of the City of St. Louis; Sean Gannon, in his capacity
as a Trustee of the Catlin Tract Subdivision of the City of St. Louis; Catlin Tract
Board of Trustees, a Missouri nonprofit corporation
lllllllllllllllllllll Defendants - Appellees
____________
Appeal from United States District Court
for the Eastern District of Missouri - St. Louis
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Submitted: March 11, 2015
Filed: July 1, 2015
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Before MURPHY and SHEPHERD, Circuit Judges, and BROOKS,1 District
Judge.
____________
SHEPHERD, Circuit Judge.
In 2013, four individuals—Elsie Beck Glickert, Jen Rivenes Jensen, Irene
Franklin, and Peter Sarandos—filed a five-count complaint (“the Complaint”) against
a number of defendants seeking declaratory and injunctive relief from the

1

The Honorable Timothy L. Brooks, United States District Judge for the
Western District of Arkansas, sitting by designation.
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organization and operation of the Loop Trolley Transportation Development District
(“the District”) in University City, Missouri. Count 1 alleged federal and state
constitutional claims, while Counts 2 to 5 raised state law challenges. The district
court2 granted the defendant-appellees’ (hereinafter also referred to collectively as the
“District”) motion to dismiss Count 1 as to Glickert, Jensen, and Franklin for lack of
standing; granted the District’s motion for summary judgment on Count 1 as to
Sarandos because his claims were precluded by a state judgment; and declined to
exercise jurisdiction over the remaining state law claims. On appeal, Glickert,
Jensen, and Franklin argue the district court erred in finding they lack standing and
in failing to allow them to amend their complaint to include more particularized
allegations to establish their standing. Sarandos argues the district court erred in
applying claim preclusion because he did not receive constitutionally adequate notice
of the state lawsuit, denying him due process of law. We affirm.
I. Background
The Missouri Transportation Development District Act (“TDD Act”), Mo. Rev.
Stat. §§ 238.200-.275,3 authorizes the creation of transportation development districts
to fund and execute transportation and infrastructure projects. Mo. Rev. Stat.
§§ 238.202, .205. A transportation development district is a political subdivision of
the state. Id. § 238.205. In 2007, the governing bodies of St. Louis City and
University City, both local transportation authorities within the meaning of the TDD
Act, passed resolutions calling for the joint establishment of the proposed District.
See id. § 238.202.1(4). Pursuant to the TDD Act’s requirements, University City then
filed a petition in the Circuit Court of St. Louis County (the “Formation Lawsuit”)

2

The Honorable Stephen N. Limbaugh, Jr., United States District Judge for the
Eastern District of Missouri.
3

Statutory citations refer to the 2008 edition of the Revised Statutes of Missouri
unless otherwise indicated.
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seeking to create the proposed District to fund and build a trolley-car rail system. See
id. § 238.207.5. The petition proposed to fund the trolley-car project by imposing up
to a one percent sales tax on retail sales in the proposed District. See id. § 238.235.
Notice of the proposal was published in two newspapers, The St. Louis Daily Record
and The Countian, for four weeks, inviting persons who resided or owned property
within the proposed District to join the Formation Lawsuit. See id. § 238.212. No
one opposed the proposal or sought to join the suit. In December 2007, the circuit
court entered an order declaring the proposed District and sales tax were neither
illegal nor unconstitutional and certifying a single ballot question for voter approval
regarding creation of the proposed District, approval of the proposed trolley-car
project, and authorization of a one percent sales tax on retail sales within the
proposed District to fund the project. See id. § 238.215-.216. At the time, qualified
voters included registered voters who resided within the boundaries of the proposed
District and persons who owned real property within those boundaries. Id.
§ 238.202.2(2) (2007).4 Voters approved the ballot question and, in July 2008, the
circuit court entered a final judgment creating the District, approving the trolley-car
project, and authorizing the District to levy and collect a sales tax to fund the project
(“the TDD Judgment”). See id. § 238.215. The sales tax was imposed in the District
in August 2008 and has been paid and collected since that time.
In 2013, Glickert, Jensen, Franklin, and Sarandos filed a five-count Complaint
in federal district court, seeking a declaratory judgment stating the District was not
lawfully created and a permanent injunction barring the District from building and
operating the trolley-car system. Count 1 alleged that certain voting provisions of the
TDD Act violated the Equal Protection and Due Process Clauses of the United States
and Missouri Constitutions. Counts 2 to 5 raised state law challenges. The
Complaint noted that Glickert, Jensen, and Franklin do not reside in or own property
within the District, but are residents and taxpayers of University City and the City of
4

The definition of “qualified voters” in the TDD Act has since been amended.
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St. Louis and regular business patrons, pedestrians, and motorists in the District. It
also stated that Sarandos is a resident of St. Charles County, Missouri, and owns real
property in the District.
The District filed a motion to dismiss and for summary judgment with respect
to all counts of the Complaint. The district court dismissed Count 1 as to Glickert,
Jensen, and Franklin for lack of subject matter jurisdiction, finding these three
plaintiffs lacked standing to bring their federal claims. The district court granted the
District’s motion for summary judgment on Count 1 as to Sarandos on preclusion
grounds, finding that his failure to intervene and object in the Formation Lawsuit
precluded him from bringing his claims in Count 1. The district court declined to
exercise supplemental jurisdiction over the remaining state law claims and dismissed
Counts 2 to 5 as to all appellants, pursuant to 28 U.S.C. § 1367(c)(3).
Glickert, Jensen, Franklin, and Sarandos now appeal, arguing: (1) the district
court abused its discretion in dismissing Franklin, Glickert, and Jensen’s claims
without giving them an opportunity to amend the Complaint to add more
particularized allegations to establish their standing; (2) the district court erred in
finding Glickert, Jensen, and Franklin lack standing because they live near and
regularly frequent the District; and (3) the district court erred in applying claim
preclusion against Sarandos because he did not receive adequate notice of the
Formation Lawsuit, in violation of due process.
II. Discussion
A. Motion to Amend
Glickert, Jensen, and Franklin argue the district court abused its discretion in
dismissing their claims in Count 1 without affording them an opportunity to amend
the Complaint to supply more particularized allegations to establish their standing.
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“A decision whether to allow a party to amend her complaint is left to the sound
discretion of the district court and should be overruled only if there is an abuse of
discretion.” Popoalii v. Corr. Med. Servs., 512 F.3d 488, 497 (8th Cir. 2008).
Glickert, Jensen, and Franklin did not move to amend or file a proposed
amended pleading with the district court. Rather, in their memorandum of law in
opposition to the District’s motion to dismiss, they included a brief section noting that
“[b]ecause the District combined its motion to dismiss with a motion for summary
judgment, filed very early in the course of this suit, it was not practical for Plaintiffs
to avail themselves of their right to amend their Complaint as a matter of course” and
requesting “permission to amend their Complaint should this Court find any
insufficiencies in its allegations.” R. Doc. 91, at 18. We have held that “to preserve
the right to amend a complaint a party must submit a proposed amendment along with
its motion.” Wolgin v. Simon, 722 F.2d 389, 395 (8th Cir. 1983); see also United
States v. Mask of Ka-Nefer-Nefer, 752 F.3d 737, 742 (8th Cir. 2014) (rejecting
government’s argument that the district court departed from “typical practice” when
it dismissed government’s complaint without inviting amendment because Eighth
Circuit law requires plaintiffs to submit a motion and proposed amendment to
preserve their right to amend and does not require the district court to invite a motion
for leave to amend if plaintiffs did not file one). Appellants did not submit a motion
to amend or a proposed amendment, nor did they indicate what a proposed amended
pleading might have contained. Accordingly, the district court did not abuse its
discretion by failing to grant Glickert, Jensen, and Franklin leave to amend their
Complaint. See, e.g., Clayton v. White Hall Sch. Dist., 778 F.2d 457, 460 (8th Cir.
1985) (holding district court did not abuse its discretion in failing to grant leave to
amend where appellant did not submit a motion or proposed amendment but merely
concluded her response to the appellee’s motion to dismiss with a request for leave
to amend).

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B. Standing
The district court dismissed Glickert, Jensen, and Franklin’s claims in Count
1 because it found they lacked standing to bring their federal claims. “We review a
decision dismissing a complaint for lack of standing de novo, ‘construing the
allegations of the complaint, and the reasonable inferences drawn therefrom, most
favorably to the plaintiff.’” Tarsney v. O’Keefe, 225 F.3d 929, 934 (8th Cir. 2000)
(quoting Burton v. Cent. Interstate Low-Level Radioactive Waste Compact Comm’n,
23 F.3d 208, 209 (8th Cir. 1994)).
“In essence the question of standing is whether the litigant is entitled to have
the court decide the merits of the dispute or of particular issues. This inquiry
involves both constitutional limitations on federal-court jurisdiction and prudential
limitations on its exercise.” Warth v. Seldin, 422 U.S. 490, 498 (1975). Glickert,
Jensen, and Franklin, as the parties asserting federal jurisdiction, have the burden of
establishing their standing. See DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342
(2006). To satisfy constitutional standing requirements, the plaintiff must make out
a “case or controversy” between himself and the defendant, which requires he allege
“‘such a personal stake in the outcome of the controversy’ as to warrant his
invocation of federal-court jurisdiction and to justify exercise of the court’s remedial
powers on his behalf.” Warth, 422 U.S. at 498-99 (quoting Baker v. Carr, 369 U.S.
186, 204 (1962)). “From Article III’s limitation of the judicial power to resolving
‘Cases’ and ‘Controversies,’ and the separation-of-powers principles underlying that
limitation, we have deduced a set of requirements that together make up the
‘irreducible constitutional minimum of standing.’” Lexmark Int’l, Inc. v. Static
Control Components, Inc., 134 S. Ct. 1377, 1386 (2014) (quoting Lujan v. Defenders
of Wildlife, 504 U.S. 555, 560 (1992)). “The plaintiff must have suffered or be
imminently threatened with a concrete and particularized ‘injury in fact’ that is fairly
traceable to the challenged action of the defendant and likely to be redressed by a
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favorable judicial decision.” Id. In addition to the minimum Article III “case or
controversy” requirement, the Supreme Court “has recognized other limits on the
class of persons who may invoke the courts’ decisional and remedial powers,”
including the limitation that “the plaintiff generally must assert his own legal rights
and interests, and cannot rest his claim to relief on the legal rights or interests of third
parties.” Warth, 422 U.S. at 499.
Count 1 of appellants’ Complaint is based upon the alleged unconstitutionality
of certain voting provisions of the TDD Act. Appellants allege that the TDD Act, on
its face or as applied in this election, is unconstitutional because it: (1) violates
voters’ right to equal protection by creating discriminatory voting classifications;
(2) violates voters’ right to equal protection and due process by failing to assure
ballot secrecy; and (3) violates voters’ right to equal protection and due process by
unduly burdening voters’ ability to exercise their right to vote in a variety of ways.5
Appellants allege that, as a consequence of the statute’s unconstitutionality, the TDD
Judgment creating the District is void and thus the District has no authority to collect
taxes or undertake the trolley project. Appellants allege they are injured because the
District is collecting sales tax on purchases of goods and services in the District,
where they regularly shop, and undertaking the trolley project in an area they live
near and frequent. They asked the district court to declare that the District does not
exist and permanently enjoin the District from pursuing the trolley project.
We conclude Glickert, Jensen, and Franklin lack standing to assert equal
protection and due process claims in this case because these claims are not an
assertion of their own legal rights. “A federal court must ask ‘whether the
constitutional or statutory provision on which the claim rests properly can be

5

The Complaint also alleged that the TDD Act’s failure to assure ballot secrecy
violates Article 8, Section 3 of the Missouri constitution, which addresses methods
of voting and secrecy of the ballot.
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understood as granting persons in the plaintiff’s position a right to judicial relief.’”
Roberts v. Wamser, 883 F.2d 617, 620 (8th Cir. 1989) (quoting Warth, 422 U.S. at
500). Glickert, Jensen, and Franklin are not entitled to vote in the District, as they do
not reside in or own property within the District, and they do not assert any personal
right under the Constitution or any statute that is violated by the District’s imposition
of the sales tax and pursuit of the trolley project. Rather, the only legal basis for their
claim is that the TDD Act violates the constitutional rights of third parties, namely,
people who were entitled to vote in the TDD election. “In short the claim of these
petitioners falls squarely within the prudential standing rule that normally bars
litigants from asserting the rights or legal interests of others in order to obtain relief
from injury to themselves.” Warth, 422 U.S. at 509; cf. United States v. Hays, 515
U.S. 737, 743-44 (1995) (applying the rule against generalized grievances to note
that, in the equal protection context, the resulting injury from discriminatory conduct
“accords a basis for standing only to those persons who are personally denied equal
treatment by the challenged discriminatory conduct” (internal quotation marks
omitted)). While this prudential rule is subject to exceptions, appellants do not
present any argument that an exception should apply, nor do we find one applicable
to this case. See Warth, 422 U.S. at 509-10. Thus we affirm the district court’s
dismissal of Glickert, Jensen, and Franklin’s claims in Count 1 for lack of standing.
C. Notice
Sarandos is differently situated from the other appellants because he owned
property in the District during the TDD election and voted in the election. The
district court found it unnecessary to determine whether this fact established
Sarandos’s standing to bring his claims in Count 1, instead granting the District’s
motion for summary judgment by concluding Sarandos’s claims were precluded by
the TDD Judgment. We review a district court’s grant of summary judgment de novo.
Butler v. City of N. Little Rock, Ark., 980 F.2d 501, 503 (8th Cir. 1992). We will
affirm the grant of summary judgment “if the movant shows that there is no genuine
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dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a).
We afford the same full faith and credit to the TDD Judgment, a state court
judgment, that would apply in Missouri’s own courts. See 28 U.S.C. § 1738; Kremer
v. Chem. Constr. Corp., 456 U.S. 461, 466 (1982). The district court concluded that
Sarandos could have intervened in the Formation Lawsuit to bring his claims and that
“Missouri law is clear that the judgment establishing a transportation development
district is final and given preclusive effect over those who could have intervened in
the Formation Litigation.” Glickert v. Loop Trolley Transp. Dev. Dist., No.
4:13cv2170 SNLJ, 2014 WL 1672005, at *6 (E.D. Mo. Apr. 28, 2014). Sarandos
does not challenge these findings on appeal. Rather he argues only that the preclusive
effect of the TDD Judgment could not be applied against him because he did not
receive adequate notice of the Formation Lawsuit, in violation of due process.
The TDD Act has a notice provision, requiring the circuit clerk in whose office
a petition is filed to publish notice in “one or more newspapers of general circulation
serving the counties or portions thereof contained in the proposed district to publish
once a week for four consecutive weeks.” Mo. Rev. Stat. § 238.212. The Complaint
alleged the Formation Lawsuit file did not contain evidence showing the statutory
notice requirement was satisfied. In its motion to dismiss and for summary judgment,
the District argued res judicata barred appellants’ claims, detailed how appellants
received notice and an opportunity to be heard in the Formation Lawsuit, and
submitted affidavits showing notice was published. In their memorandum in
opposition to the motion, appellants argued Glickert, Jensen, and Franklin could not
be precluded by the TDD Judgment because they did not have the right to join the
Formation Lawsuit, stating: “The City neglects to explain how these Plaintiffs
[Glickert, Jensen, and Franklin], even had they been given notice, would have been
entitled . . . to participate in the Formation Lawsuit.” R. Doc. 91, at 20. After the
word “notice,” appellants included the following footnote:
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Plaintiffs acknowledge that, after the Formation Lawsuit was filed, the
court ordered that notice of the filing be published. Though the District
has presented a recent affidavit that this was done, the Formation
Lawsuit file does not reflect this. Though the Complaint does not raise
the issue, the constitutional adequacy of published notice to Plaintiff
Sarandos, the record owner of land within the proposed district, merits
consideration; Plaintiffs will seek to develop this issue if they are
allowed to amend their Complaint.
R. Doc. 91, at 20, n.43 (citations omitted). Sarandos now concedes publication notice
was given but claims it was constitutionally inadequate and thus argues the district
court could not apply the preclusive effect of the TDD Judgment against him. The
District argues Sarandos waived this argument by failing to raise it in the district
court. We agree.
Appellants alleged in the Complaint that the Formation Lawsuit file did not
prove statutorily required notice was provided. The District submitted evidence with
their motion for summary judgment showing the statute’s notice requirement was
satisfied. Appellants did not contradict or rebut that evidence or argue that res
judicata could not apply because publication notice was inadequate. Accordingly,
while it is true that state court proceedings must meet minimum due process
requirements to qualify for the full faith and credit guaranteed by federal law, see
Kremer, 456 U.S. at 481, in this case, there was no genuine dispute before the district
court as to the constitutional adequacy of notice that precluded it from granting
summary judgment on res judicata grounds. See Fed. R. Civ. P. 56(a); see also
Abbott v. Michigan, 474 F.3d 324, 331-32 (6th Cir. 2007) (finding summary
judgment on preclusion grounds proper where plaintiffs claimed they did not have a
full and fair opportunity to litigate their claims, defendants moved for summary
judgment and presented evidence on this claim, and plaintiffs did not challenge or
come forth with evidence to show they did not have a full and fair opportunity to
litigate).

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In his reply brief, Sarandos claims he did raise the issue of the “constitutional
adequacy of the published notice” before the district court, referring to the
aforementioned footnote in appellants’ memorandum in opposition to summary
judgment, and thus he did raise a due process challenge. While we agree that this
footnote included the words “constitutional adequacy of published notice,” having
reviewed the record, we disagree that this footnote was sufficient to alert the district
court that Sarandos was asserting that res judicata could not bar his claims because
he did not receive constitutionally adequate notice of the Formation Lawsuit. At
most, the footnote may have signaled that Sarandos might raise a challenge to the
constitutionality of the TDD Act’s notice provision in the future. Accordingly, this
claim was not pled in the district court, and we note that not only have we already
concluded the district court did not abuse its discretion by not granting appellants
leave to amend the Complaint, but appellants do not even argue on appeal that the
district court erred in failing to allow them to amend to develop Sarandos’s due
process argument. We conclude, therefore, that the due process argument Sarandos
makes on appeal was not raised before the district court, and thus we will not address
it. See Larken, Inc. v. Wray, 189 F.3d 729, 735 (8th Cir. 1999) (declining to address
arguments that were not made below “with sufficient particularity to preserve them”).
As Sarandos does not otherwise challenge the district court’s application of
preclusion, we affirm the court’s grant of summary judgment on Count 1 of the
Complaint as to Sarandos.6

6

As we conclude the TDD Judgment precludes Sarandos’s claims, we do not
need to address his secondary argument, namely, that he could not have brought his
constitutional challenges in an election contest.
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III. Conclusion
For these reasons, we affirm the district court’s dismissal of Count 1 of the
Complaint as to Glickert, Jensen, and Franklin and its grant of summary judgment on
Count 1 as to Sarandos.
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