KTK Mining of Virginia, LLC v. City of Selma, Alabama et al

Filing 44

ORDER ADOPTING IN PART 40 REPORT AND RECOMMENDATIONS re: 29 MOTION to Dismiss. Accordingly, these specific claims, as set forth in the following Counts, are NOT DISMISSED and remain in this case: Count One (First Amendment and procedur al due process claim); Count Four (conversion as to personal property); Count Five (negligence and wantonness); Count Seven (permanent injunctive relief); and Count Eight (appeal of the suspension/revocation of KTK's building permit by the City of Selma). Signed by Judge Kristi K. DuBose on 7/2/2013. (sdb)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
NORTHERN DIVISION
KTK MINING OF VIRGINIA, LLC, et al., :
:
Plaintiffs,
:
:
v.
:
:
CITY OF SELMA, ALABAMA and
:
CHIEF OF POLICE WILLIAM T. RILEY, :
:
Defendants.
:

CIVIL ACTION: 12-00655-KD-C

ORDER
After due and proper consideration of all portions of this file deemed relevant to the
issues raised, and a de novo determination of those portions of the Report and Recommendation
to which objection is made (Doc. 42), the Report and Recommendation of the Magistrate Judge
(Doc. 40) made under 28 U.S.C. § 636(b)(l)(B) and dated June 10, 2013 is ADOPTED IN
PART as the opinion of this Court as follows:
1) That portion of the Report and Recommendation recommending the dismissal with
prejudice of Plaintiff Todd Kiscaden’s claims, all claims against Defendant William T.
Riley, Count One (Fifth Amendment and Fourteenth Amendment substantive due
process), Counts Two and Three (tortious interference), Count Four (conversion of real
property), Count Six (fraud), and Count Seven (for preliminary injunctive relief), is
ADOPTED. Thus, it is ORDERED that these specific claims are DISMISSED WITH
PREJUDICE.
2) That portion of the Report and Recommendation recommending the dismissal of
Count Five (negligence and wantonness) is NOT ADOPTED;
3) Plaintiffs object to the dismissal of Todd Kiscaden. Specifically, Kiscaden alleges
that his First Amendment rights were infringed. However, no such claim appears in the
Complaint where the First Amendment claim is grounded in the revocation of KTK’s
permit.
4) KTK also objects to the dismissal of its negligence claim against the City of Selma.
The Court agrees that additional facts are needed to determine whether the City may
invoke the substantive immunity doctrine.

Accordingly, these specific claims, as set forth in the following Counts, are NOT
DISMISSED and remain in this case: Count One (First Amendment and procedural due process
claim); Count Four (conversion as to personal property); Count Five (negligence and
wantonness); Count Seven (permanent injunctive relief); and Count Eight (appeal of the
suspension/revocation of KTK’s building permit by the City of Selma).
DONE and ORDERED this the 2nd day of July 2013.
/s/ Kristi K. DuBose
KRISTI K. DuBOSE
UNITED STATES DISTRICT JUDGE

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