Wollesen et al v. West Central Cooperative et al
ORDER denying 67 , 68 , 70 and 76 Motions to Dismiss (See Order text). However, adjudication of the Plaintiffs claim of malicious prosecution is stayed pending disposition of appeals in state court. Signed by Judge Mark W Bennett on 12/28/2016. (des)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WILLIAM S. WOLLESEN, IOWA
PLAINS FARMS, BYRITE FARM
SUPPLY, INC., KRISTI J.
WOLLESEN, and JOHN W.
No. C 16-4012-MWB
WEST CENTRAL COOPERATIVE,
JEFFERY B. STROBURG, SUSAN
TRONCHETTI, DARRELL JENSEN,
CHRISTOPHER S. COEN, CRAIG
HEINEMAN, JAY DREES, ROGER
GINDER, JAMES CARLSON, CARYL
CHRISTENSEN, SAM SPELLMAN,
DANIEL HELLER, SCOTT B.
CHESNUT, HARRY A.
AHRENHOLTZ, LINDA BUSS,
TIMOTHY WEIGEL, DAWN
THIELEN, WESTCO AGRONOMY
COMPANY, L.L.C., WIXTED, INC.,
d/b/a WIXTED POPE NORA
THOMPSON, WIXTED POPE NORA
THOMPSON & ASSOCIATES, L.L.C.,
EILEEN WIXTED, GARDINER
THOMSEN, P.C., DANIEL MARK
GARDINER, MILAN KUCERAK, and
MOTIONS TO DISMISS
This case is before me on the defendants’ renewed dispositive motions filed in
response to the Wollesens’ August 9, 2016, Second Amended Verified Complaint (docket
no. 64) (SAC). The SAC was, in turn, filed after my July 19, 2016, Order Regarding
Defendants’ Motions To Dismiss (docket no. 61), in which I denied the then-pending
motions to dismiss (docket nos. 24, 27, and 29), granted the Wollesens leave to file a
second amended complaint repleading their RICO claim, and set a deadline for the
defendants either to file answers or motions to dismiss as to the second amended
complaint. The renewed dispositive motions now before me are the following: The
Individual WCC Defendants’ September 12, 2016, Motion To Dismiss (docket no. 67);
the Wixted Pope Defendants’ September 12, 2016, Motion To Dismiss (docket no. 68);
the Defendant Cooperatives’ September 12, 2016, Motion To Abstain Pursuant To The
Colorado River Abstention Doctrine Or Alternatively Dismiss (docket no. 70); and the
Gardiner Thomsen Defendants’ September 13, 2016, Motion To Dismiss (docket no. 76).
Responses and replies have been duly filed. Notwithstanding various requests for oral
arguments on these motions, I find that oral arguments are not necessary, in light of the
briefing. Therefore, these motions are submitted on the parties’ written submissions.
Once again, the principal issue raised in these motions is whether or not the
Wollesens’ only federal claims in their SAC, now two RICO claims instead of one, state
claims upon which relief can be granted. If not, the Wollesens request the opportunity
to offer a further amendment. Again, the remaining issues involve some independent
challenges to state-law claims, but the defendants’ primary challenge to the state-law
claims is supplemental jurisdiction, if the RICO claims are dismissed.
I have reviewed the Wollesens’ repleading of their RICO claims in Count VII
(“CIVIL RICO, 18 U.S.C. § 1962(a), 1962(b), and 1962(c)”) and Count VIII (“RICO
CONSPIRACY, 18 U.S.C. § 1962(d)”) of their SAC. Although the defendants are
correct that more is not necessarily better, and I have considerable doubt that the
Wollesens will be able to marshal sufficient evidence either to survive summary judgment
or to convince a jury on their RICO claims, or to convince me that their RICO claims
are timely, I am satisfied that the Wollesens have now plausibly pleaded their RICO
claims with sufficient particularity to survive Rule 12(b)(6) motions to dismiss. See FED.
R. CIV. P. 12(b)(6) and 9(b); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct.
1955, 167 L.Ed.2d 929 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173
L.Ed.2d 868 (2009); Richter v. Advance Auto Parts, Inc., 686 F.3d 847, 850 (8th Cir.
2012); see also Crest Constr. II, Inc. v. Doe, 660 F.3d 346, 353-58 (8th Cir. 2011)
(pleading RICO claims). Consequently, the parts of the pending motions to dismiss
relating to the RICO claims in the SAC are denied.
Under these circumstances, I must also consider the portions of the pending
motions relating to the Wollesens’ state law claims. The Wixted Defendants contend
that, even if this court has federal question subject matter jurisdiction, because the
Wollesens have stated viable RICO claims, it does not have supplemental jurisdiction
over the state-law claims, because those claims do not derive from a common nucleus of
operative facts, within the meaning of 28 U.S.C. § 1367(a), and those claims predominate
over the RICO claims, within the meaning of 28 U.S.C. § 1367(c)(2). I conclude,
however, that the state and federal claims are sufficiently related—or interrelated—
factually as to satisfy § 1367(a) and to make an argument of “predominance” of the state
law claims under § 1367(c)(2) ring hollow. See Wong v. Minnesota Dep’t of Human
Servs., 820 F.3d 922, 931-32 (8th Cir. 2016) (explaining that, in the absence of one of
the exceptions in § 1367(c), the court properly exercises supplemental jurisdiction under
§ 1367(a) over a state-law claim “if it ‘derive[s] from a common nucleus of operative
fact’ as a claim otherwise within the court’s jurisdiction” (quoting City of Chicago v. Int'l
Coll. of Surgeons, 522 U.S. 156, 165 (1997)). As to the Wixted Defendants’ contentions
that the state-law claims are subject to dismissal pursuant to Rule 12(b)(6), I conclude
that, perhaps just barely, the Wollesens have pleaded sufficient facts to make the claims
timely and to make plausible the Wixted Defendants’ knowledge of, involvement in,
and/or aiding of the wrongdoing alleged. See Richter, 686 F.3d at 850.
Both the Wixted Defendants and the Defendant Cooperatives assert that the
Wollesens’ malicious prosecution claim cannot proceed, because the state court action on
which that claim is based has not finally concluded, where appeals in state court are still
pending. I conclude that the better course, under these circumstances, is to deny the
motions to dismiss this claim, but to stay adjudication of this claim pending disposition
of appeals in state court. This is so, because a dismissal of the claim, if it is premature,
is likely to invite a later request to amend to add it back, when and if the state court
proceedings do finally end favorably for the Wollesens.
Consequently, the parts of the defendants’ motions seeking dismissal of the statelaw claims are also denied.
The Defendant Cooperatives also assert that I should abstain from exercising
jurisdiction over the state-law claims pursuant to the Colorado River abstention doctrine.
Their contention that the prior state court action and this action are “parallel,” to the
extent required, does not withstand scrutiny, however. Because of the differences in the
claims, considering all of the claims at issue in this case, and the sources of law, the
required evidentiary showings, the measure of damages, and the treatment on appeal of
the claims, I have considerable doubt that there is a substantial likelihood—or much
likelihood at all—that the state proceeding will fully dispose of the claims present in this
See Cottrell v. Duke, 737 F.3d 1238, 1245 (8th Cir. 2013).
circumstances, I cannot use Colorado River to refuse jurisdiction.
Defendant Cooperatives’ request for a stay of the state-law claims pursuant to the
Colorado River abstention doctrine is also denied.
THEREFORE, the pending motions to dismiss (docket nos. 67, 68, 70, and 76)
are denied. However, adjudication of the Wollesens’ claim of malicious prosecution is
stayed pending disposition of appeals in state court.
IT IS SO ORDERED.
DATED this 28th day of December, 2016.
MARK W. BENNETT
U.S. DISTRICT COURT JUDGE
NORTHERN DISTRICT OF IOWA
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