Martin Marietta Materials, Inc. et al v. Kansas Department of Transportation et al

Filing 59

MEMORANDUM AND ORDER. The 22 Motion of defendants' for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c) is granted in part and denied in part; and the 31 Motion of plaintiffs' for leave to amend complaint pursuant to Fed. R. Civ. P. 15(a)(2) is granted in part and denied in part. Defendant KDOT is dismissed from all counts and leave to amend to include KDOT as a party defendant in any count is denied. See attached for more details. Signed by U.S. District Senior Judge Sam A. Crow on 5/21/2013. (Attachments: # 1 Appendix 1, # 2 Appendix 2, # 3 Appendix 3, # 4 Appendix 4, # 5 Appendix 5, # 6 Appendix 6.) (bmw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
MARTIN MARIETTA MATERIALS,
INC., and HUNT MARTIN
MATERIALS, LLC,
Plaintiffs,
vs.

Case No. 12-2699-SAC

KANSAS DEPARTMENT OF
TRANSPORTATION, and MIKE
KING, in his individual and official
Capacity as Kansas Secretary of
Transportation, and JERRY YOUNGER,
in his individual and official capacity
as Deputy Secretary of Transportation
State Transportation Engineer,
Defendants.
MEMORANDUM AND ORDER
The case comes before the court on the defendants’ motion for
judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c) (Dk. 22), and
on the plaintiffs’ motion for leave to file first amended complaint pursuant to
Fed. R. Civ. P. 15(a)(2). (Dk. 31). Asserting diversity and subject matter
jurisdiction, the plaintiffs, collectively referred to as “Martin Marietta,” are
suing due to the removal of their two Kansas limestone quarries from the
Kansas Department of Transportation’s (“KDOT”) approved or pre-qualified
list of concrete aggregate suppliers. Martin Marietta’s complaint includes 12
counts alleging violations of federal constitutional rights, state regulations

and state tort law entitling them to monetary, declaratory and injunctive
relief. The defendants have filed their answer. (Dk. 6).
After the defendants filed their Fed. R. Civ. P. 12(c) motion, the
plaintiffs sought leave to file an amended complaint. (Dk. 31). The plaintiffs
explain in their motion that the requested amendments include the
defendants’ wrongful removal of another Martin Marietta quarry from KDOT’s
approved listings, incorporate recently acquired information on more
wrongful acts by the defendants, and offer additional facts to support the
claims challenged in the defendants’ motion. The plaintiffs do not state that
their proposed amendments concede any legal challenges that have been
raised in the defendants’ Rule 12(c) motion. In their last filing, the reply in
support of their motion to amend, the plaintiffs state they “will dismiss
without prejudice” their “claims under K.A.R. § 36-31-2 (Count One), the
Takings Clause (Count Ten), and . . . for negligent interference with
contractual relationships (Count Five), and would have no objection to the
Court dismissing these claims without prejudice.” (Dk. 47, p. 3 n. 1).
While a motion for leave to amend is typically regarded as a nondispositive
matter routinely handled by the magistrate judge, the district judge will
handle both motions at the same time due to the overlapping issues. Thus,
for the sake of convenience and simplicity, the court will collapse its analysis
of the defendants’ Rule 12(c) motion and the defendants’ legal arguments on
futility in opposing leave to amend.
2

STANDARDS ON MOTIONS
After a responsive pleading has been served, “a party may
amend its pleading only with the opposing party’s written consent or the
court’s leave.” Fed. R. Civ. P. 15(a)(2). The Rule directs that a “court should
freely give leave when justice so requires.” Id. “The purpose of the Rule is to
provide litigants ‘the maximum opportunity for each claim to be decided on
its merits rather than on procedural niceties.’” Minter v. Prime Equipment
Co., 451 F.3d 1196, 1204 (10th Cir. 2006) (quoting Hardin v. ManitowocForsythe Corp., 691 F.2d 449, 456 (10th Cir.1982)). A plaintiff is entitled to
test the merits of a claim assuming “the underlying facts or circumstances
relied upon . . . may be a proper subject of relief.” Foman v. Davis, 371 U.S.
178, 182 (1962). Proper grounds for denying leave include “’undue delay,
bad faith or dilatory motive on the part of the movant, repeated failure to
cure deficiencies by amendments previously allowed, undue prejudice to the
opposing party by virtue of allowance of the amendment, futility of
amendment, etc.’” Minter, 451 F.3d at 1204 (quoting Foman, 371 U.S. at
182).
“A court properly may deny a motion for leave to amend as futile
when the proposed amended complaint would be subject to dismissal for any
reason, including that the amendment would not survive a motion for
summary judgment.” Bauchman for Bauchman v. West High School, 132
F.3d 542, 562 (10th Cir. 1997), cert. denied, 524 U.S. 953 (1998). Simply
3

stated, “a proposed amendment is futile if the complaint, as amended, would
be subject to dismissal.” Bradley v. Val-Mejias, 379 F.3d 892, 901 (10th Cir.
2004) (internal quotation marks and citation omitted). “The futility question
is functionally equivalent to the question whether a complaint may be
dismissed for failure to state a claim.” Gohier v. Enright, 186 F.3d 1216,
1218 (10th Cir. 1999) (citations omitted). “The burden of showing futility
rests with the defendants who assert this ground in opposing the plaintiff's
leave to amend.” Meyer v. City of Russell, 2012 WL 5878613, at *2 (D.
Kan. 2012) (citing Synthes, Inc. v. Marotta, 281 F.R.D. 217, 231–32 (E.D.
Pa. 2012); Boykin v. CFS Enterprise, Inc., 2008 WL 4534400 at *3 (D. Kan.
2008)). Thus, a court may deny leave to amend if the proposed
amendments fail to state plausible claims under Rule 12(b)(6).
“A motion for judgment on the pleadings under Rule 12(c) is
treated as a motion to dismiss under Rule 12(b)(6),” Atlantic Richfield Co. v.
Farm Credit Bank of Wichita, 226 F.3d 1138, 1160 (10th Cir.2000), and the
same standards apply to both motions, Ward v. Utah, 321 F.3d 1263, 1266
(10th Cir. 2003). The court will apply the same standards for evaluating
both motions. If the allegations in the petition lack plausibility, defendants
are entitled to judgment on the pleadings, and if the allegations in the
proposed amended complaint lack plausibility, then leave to amend should
be denied as futile.

4

In determining whether to grant or deny the Rule 12(c) motion,
or in determining whether amendment would be futile, the court looks to the
same following standards. The court accepts as true “all well-pleaded factual
allegations in a complaint and view[s] these allegations in the light most
favorable to the plaintiff.” Smith v. United States, 561 F.3d 1090, 1098
(10th Cir. 2009), cert. denied, 558 U.S. 1090 (2010). This duty to accept a
complaint's allegations as true is tempered by the principle that “mere labels
and conclusions,' and ‘a formulaic recitation of the elements of a cause of
action’ will not suffice; a plaintiff must offer specific factual allegations to
support each claim.” Kansas Penn Gaming, LLC v. Collins, 656 F.3d 1210,
1214 (10th Cir. 2011) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555 (2007)). As recently clarified by the Supreme Court, the standard under
Rule 12(b)(6) is that to withstand a motion to dismiss, “a complaint must
contain enough allegations of fact, taken as true, to state a claim to relief
that is plausible on its face.“ Al–Owhali v. Holder, 687 F.3d 1236, 1239
(10th Cir. 2012) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)1).
Thus, “a plaintiff must offer sufficient factual allegations to ‘raise a right to
relief above the speculative level.’“ Kansas Penn Gaming, 656 F.3d at 1214
(quoting Twombly, 550 U.S. at 555). “The plausibility standard is not akin to
Iqbal requires two prongs of analysis. First, the court separates out “the
allegations in the complaint that are not entitled to the assumption of truth,”
that is, those allegations which are legal conclusion, bare assertions, or
merely conclusory. 556 U.S. at 680–81. Second, the court evaluates the
factual allegations “to determine if they plausibly suggest an entitlement to
relief.” Id. at 681

1

5

a ‘probability requirement,’ but it asks for more than a sheer possibility that
a defendant has acted unlawfully.'“ Iqbal, 556 U.S. at 678 (quoting
Twombly, 550 U.S. at 556). It follows then that if the “complaint pleads facts
that are ‘merely consistent with’ a defendant's liability it ‘stops short of the
line between possibility and plausibility of “entitlement to relief.”‘“ Id. “‘A
claim has facial plausibility when the [pleaded] factual content . . . allows
the court to draw the reasonable inference that the defendant is liable for
the misconduct alleged.’“ Rosenfield v. HSBC Bank, USA, 681 F.3d 1172,
1178 (10th Cir.2012). “Thus, in ruling on a motion to dismiss, a court should
disregard all conclusory statements of law and consider whether the
remaining specific factual allegations, if assumed to be true, plausibly
suggest the defendant is liable.” Kansas Penn Gaming, 656 F.3d at 1214.
The Tenth Circuit regards the Twombly–Iqbal decisions as crafting a new
“refined standard” whereby “plausibility refers to ‘the scope of the
allegations in a complaint: if they are so general that they encompass a wide
swath of conduct, much of it innocent, then the plaintiffs “have not nudged
their claims across the line from conceivable to plausible.”‘“ Khalik v. United
Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012) (quoting Robbins v.
Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting in turn Twombly,
550 U.S. at 570).
On a motion to dismiss or for judgment on the pleadings, courts
apply the general rule of considering only the contents of the complaint. Gee
6

v. Pacheco, 627 F.3d 1178, 1186 (10th Cir.2010). Exceptions include the
following: documents incorporated by reference in the complaint; documents
referred to in and central to the complaint, when no party disputes its
authenticity; and “‘matters of which a court may take judicial notice.’” Id.
(quoting Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322
(2007)). In this circuit, the exception has been explained that:
if a plaintiff does not incorporate by reference or attach a document to
its complaint, but the document is referred to in the complaint and is
central to the plaintiff's claim, a defendant may submit an indisputably
authentic copy to the court to be considered on a motion to dismiss.
GFF Corp. v. Associated Wholesale Grocers, Inc., 130 F.3d 1381, 1384 (10th
Cir. 1997).
COMPLAINT
Martin Marietta has provided aggregate, crushed limestone and
granite, from its quarries to make concrete pavement on KDOT projects. All
aggregate used on KDOT projects must be supplied from a quarry appearing
on KDOT’s maintained list of pre-approved quarries. KDOT sets the
standards required for a quarry to appear on the pre-approved list.
Martin Marietta’s quarry located near Ottawa, Kansas, (“Ottawa
Quarry”) had appeared on KDOT’s approved list (“A-Listing”) for a couple
decades. KDOT recently adopted a policy of removing quarries based on
observed and confirmed D-Cracking on three stretches of road less than 20years old in which aggregate from the same quarry was used. KDOT defines
D-Cracking as the process whereby limestone paving cracks from expanding
7

and contracting during freeze-thaw cycles. KDOT applies this new policy as a
rule or regulation on performance specification for quarries.
By letter in October of 2010, KDOT informed Martin Marietta that
the Ottawa Quarry was removed from the A-listing. It is alleged that then
Secretary of Transportation Debra Miller and Deputy Secretary of
Transportation Jerry Younger “authorized the removal” and did not give prior
notice of any intent to remove. (Dk. 1, ¶¶ 13-14). Martin Marietta made
numerous requests for a hearing to challenge this removal, and these
requests were denied. Current Secretary of Transportation Mike King has
continued to deny these requests.
Martin Marietta challenges KDOT’s findings and conclusion of DCracking and allege that independent testing reveals KDOT wrongly
attributed the cracking to the limestone aggregate. Martin Marietta asserts
that if a hearing had been held before or after the removal of the Ottawa
quarry, then it would have proved the defendants were wrong in believing
the observed D-Cracking was due to the limestone coming from Ottawa
quarry. Martin Marietta also alleges the Ottawa Quarry’s removal from the AListing is a continuing representation to the public that has resulted in the
loss of business.
Since the 2010 removal, the defendants are alleged to have
selected arbitrarily some quarries for the prequalified list and have refused
or delayed to test other quarries, including the plaintiffs’. Martin Marietta
8

alleges the defendants have agreed to test some but not all of its quarries
for the A-Listing. Martin Marietta further alleges when the defendants have
tested the plaintiffs’ quarries a compliance standard was used on its quarries
that was different from what was used on other quarries. Additionally, Martin
Marietta sought to have a granite quarry in Oklahoma approved for
aggregate, “but KDOT refused, despite the fact that it had no evidence that
Martin Marietta’s granite does not meet all applicable KDOT specifications.”
(Dk. 1, ¶ 33). It is alleged that KDOT pre-qualified two other out-of-state
quarries and only denied Martin Marietta’s Oklahoma quarry.
On these facts, the plaintiffs fashion the following counts for
relief: “Count I: Violation of K.A.R. § 36-31-2,” as the defendants did not
comply with the debarment procedures required in this regulation, (Dk. 1, p.
10); “Count II: Violation of Procedural Due Process” guaranteed in federal
and state constitutions by not providing a pre-deprivation hearing before
depriving Martin Marietta of its asserted property interest and liberty interest
“in being on the A-Listing and in supplying limestone from its Ottawa quarry
from A-Listing,” (Dk. 1, p. 11-12); “Count III: Violation of Procedural Due
Process” guaranteed in federal and state constitutions by not providing a
post-deprivation hearing after depriving Martin Marietta of its asserted
property and liberty interests, (Dk. 1, p. 13); “Count IV: Intentional
Interference with Business Relationships” in the loss of contracts and
business caused by the defendants’ removal of the Ottawa quarry from the
9

A-Listing and refusal to return it to the A-Listing, (Dk. 1, p. 15); “Count V:
Negligent Interference with Business Relationships” in the loss of contracts
and business caused by the defendants’ removal of the Ottawa quarry from
the A-Listing and refusal to return it to the A-Listing, (Dk. 1, p. 17); “Count
VI: Defamation” for falsely representing that Ottawa Quarry did not satisfy
the requirements for the A-Listing, (Dk. 1, p. 18); “Count VII: Violation of
Equal Protection” clause in federal and state constitutions for the defendants’
testing of quarries and decisions to prequalify some quarries but not the
plaintiffs’ quarries, (Dk. 1, p. 19); “Count VIII: Violation of Substantive Due
Process” in federal and state constitutions for the defendants’ arbitrary and
irrational actions that denied the plaintiffs of their liberty and property
interests, (Dk. 1, p. 21); “Count IX: Violation of the Takings Clause” by the
deprival of plaintiffs’ property right to be on A-Listing, (Dk. 1, p. 22); “Count
X: Request for Preliminary and Injunctive Relief” that would put the Ottawa
Quarry on A-Listing until the hearings were held and would require the
prequalification and testing of all Martin Marietta quarries, (Dk. 1, p. 23);
and “Count XI: Request for Declaratory Relief,” (Dk. 1, p. 24).
FIRST AMENDED COMPLAINT
The plaintiffs seek to add the following factual allegations. In
January of 2013, the defendants changed the name of the A-Listing to the
Prequalified List (“PQL”). Martin Marietta alleges that the Federal Highway
Administration (“FHWA”) did petrographic analysis of the concrete cores and
10

determined that the initial cracking was not due to D-cracking. KDOT then
allegedly hired the testing laboratory, CTL, to perform multiple petrographic
examinations, and CTL also concluded the cracking mechanism was not Dcracking. KDOT documents allegedly reveal that KDOT had not done its own
petrographic examinations to confirm D-cracking before removing the
Ottawa quarry from the A-Listing. The plaintiffs allege the FHWA and CTL
test results were concealed from Martin Marietta.
Martin Marietta alleges that the defendants acted arbitrarily and
capriciously in adopting sometime on or before January 2013 a new “rule,
regulation, standard specification, or policy of requiring concrete aggregate
to pass a 660 cycle freeze-thaw test with a 95% durability factor to be on
the PQL.” (Dk. 31-1, ¶ 32). Without notice or hearing, KDOT removed Martin
Marietta’s Sunflower Quarry from the PQL for allegedly failing this new
policy.
Martin Marietta proposes adding a count of void for vagueness,
Count IX, as an alternative claim for relief to counts one through three,
seven and eight. The allegations are that if the defendants have, as they
claim, the unfettered discretion to remove quarries from the A-Listing/PQL,
then the defendants’ asserted power is unconstitutional and void for
vagueness.
ELEVENTH AMENDMENT

11

The Eleventh Amendment states: “The Judicial power of the
United States shall not be construed to extend to any suit in law or equity,
commenced or prosecuted against one of the United States by Citizens of
another State, or by Citizens or Subjects of any Foreign State.” This
Amendment creates an immunity that “accord[s] states the respect owed
them as joint sovereigns,” “applies to any action brought against a state in
federal court, including suits initiated by a state’s own citizens,” and “applies
regardless of whether a plaintiff seeks declaratory or injunctive relief, or
money damages.” Steadfast Ins. Co. v. Agricultural Ins. Co., 507 F.3d 1250,
1252 (10th Cir. 2007). “The ultimate guarantee of the Eleventh Amendment
is that nonconsenting States may not be sued by private individuals in
federal court.” Bd. Of Trustees of Univ. of Ala. V. Garrett, 531 U.S. 356, 363
(2001). “’The Eleventh Amendment is a jurisdictional bar that precludes
unconsented suits in federal court against a state and arms of the state.’”
Peterson v. Martinez, 707 F.3d 1197, 1205 (10th Cir. 2013) (quoting
Wagoner County Rural Water Dist. No. 2. v. Grand River Dam Authority, 577
F.3d 1255, 1258 (10th Cir. 2009)).
Eleventh Amendment immunity extends to state entities that are
deemed to be “arm[s] of the state.” See Regents of the Univ. of Cal. v. Doe,
519 U.S. 425, 429-30 (1997); Steadfast Ins. Co., 507 F.3d at 1253. As a
state agency, KDOT is afforded Eleventh Amendment immunity. See
Gorsline v. State, Dept. of Transp., 1993 WL 455254 (D. Kan. 1993), aff’d,
12

21 F.3d 1121, 1994 WL 118174 (10th Cir. 1994); cf. Logistics Exp. Inc. v.
Kansas State Dept. of Transp., 1991 WL 287212 (D. Kan. 1991) (“KDOT is
an arm or alter ego of the State of Kansas.”). As applied against a state,
Eleventh Amendment immunity is subject to two exceptions: “(1) Congress
may abrogate a State’s Eleventh Amendment immunity in the exercise of its
power to enforce the Fourteenth Amendment and (2) a State may waive its
Eleventh Amendment immunity by consenting to suit.” Harris v. Oklahoma
Office of Juvenile Affairs ex rel. Cent. Oklahoma, 2013 WL 828859 at *1
(10th Cir. 2013) (citing Coll. Sav. Bank v. Fla. PrePaid Postsecondary Educ.
Expense Bd., 527 U.S. 666, 670 (1999)). The exception established in Ex
Parte Young, 209 U.S. 123 (1908), for official capacity actions against state
officers seeking only prospective relief, “’has no application in suits against
the States and their agencies, which are barred regardless of the relief
sought.’” Higganbotham v. Oklahoma ex rel. Oklahoma Transp. Com’n, 328
F.3d 638, 644 (10th Cir. 2003) (quoting Puerto Rico Aqueduct v. Metcalf &
Eddy, Inc., 506 U.S. 139, 146 (1993)). The plaintiffs concede the State of
Kansas has invoked and preserved its Eleventh Amendment immunity. (Dk.
36, p. 27). Thus, KDOT is entitled to dismissal,2 and the plaintiffs’ motion for
leave to amend is denied as futile insofar as it continues to name KDOT as a
party defendant.

With the dismissal of KDOT, the defendants’ argument for dismissing the
official capacity actions as duplicative is groundless.
2

13

In their combined memorandum that serves as a reply to their
Rule 12(c) motion and as a response to the plaintiffs’ motion to amend, the
defendants raise additional Eleventh Amendment arguments in response to
the plaintiffs’ latest filings. Suits against state officials in their official
capacity are regarded as suits against the official’s office and, thus, are
treated as if suits against the state and subject to Eleventh Amendment
immunity. Kentucky v. Graham, 473 U.S. 159, 165-66 (1985); see Will v.
Michigan Dep't of State Police, 491 U.S. 58, 71 (1989). The exception
argued here is as follows:
In Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714
(1908), the Supreme Court carved out an exception to Eleventh
Amendment immunity for suits against state officials seeking to enjoin
alleged ongoing violations of federal law. See id. at 159–60, 28 S.Ct.
441; Hill v. Kemp, 478 F.3d 1236, 1255–59 (10th Cir. 2007)
(discussing rationale and subsequent history of Ex parte Young). The
Ex parte Young exception proceeds on the fiction that an action
against a state official seeking only prospective injunctive relief is not
an action against the state and, as a result, is not subject to the
doctrine of sovereign immunity. See Pennhurst State Sch. & Hosp. v.
Halderman, 465 U.S. 89, 105, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984)
(noting “fiction of Young ”); Hill, 478 F.3d at 1256 (same). By
adhering to this fiction, the Ex parte Young doctrine enables “federal
courts to vindicate federal rights and hold state officials responsible to
the supreme authority of the United States.” Pennhurst, 465 U.S. at
105, 104 S.Ct. 900; see also Buchwald v. Univ. of N.M. Sch. of Med.,
159 F.3d 487, 495 (10th Cir. 1998) (internal quotation marks
omitted).
Crowe & Dunlevy, P.C. v. Stidham, 640 F.3d 1140, 1154 (10th Cir. 2011).
The Young exception only applies to allegations of “ongoing violation[s] of
federal law.” Id. at 1155 (quoting Verizon Maryland, Inc. v. Public Service
Com’n of Maryland , 535 U.S. 635, 645 (2002)). Thus, “federal courts have
14

no jurisdiction to entertain a suit that seeks to require the state official to
comply with state law.” ANR Pipeline Co. v. Lafaver, 150 F.3d 1178, 1188
(10th Cir. 1998) (citing and quoting Pennhurst, 465 U.S. at 106, for, “’[I]t is
difficult to think of a greater intrusion on state sovereignty than when a
federal court instructs state officials on how to conform their conduct to
state law. . . . We conclude that Young and Edelman are inapplicable in a
suit against state officials on the basis of state law.’”)), cert. denied, 525
U.S. 1122 (1999). The plaintiffs may not resort to the Young exception in
bringing any state law or state constitutional claim against the individual
defendants in their official capacity. The individual defendants in their official
capacities are entitled to dismissal on all such state claims, and the plaintiffs’
motion for leave to amend is denied as futile insofar as pleading any state
law or state constitutional claims and seeking relief for the same against the
individual defendants in their official capacities.
In challenging the plaintiffs’ use of the Ex Parte Young exception,
the defendants also contend that the plaintiffs’ pleadings fail to allege federal
law violations. The Tenth Circuit characterizes this inquiry as whether the
“the plaintiffs have alleged a non-frivolous violation of federal law.” Lewis v.
N.M. Dept. of Health, 261 F.3d 970, 975 (10th Cir. 2001) (citation omitted).
The court reserves its discussion here for later when it addresses all of the
defendants’ substantive challenges to the plaintiffs’ federal claims of relief.
Next, the defendants summarily contend that the plaintiffs’
15

claimed relief is not prospective in character as they seek declaratory relief
about past conduct and they seek injunctive relief to redress something that
has already happened. “To determine whether the Ex Parte Young doctrine
applies, ‘a court need only conduct a straightforward inquiry into whether
[the] complaint alleges an ongoing violation of federal law and seeks relief
properly characterized as prospective.” Guttman v. Khalsa, 669 F.3d 1101,
1126-27 (10th Cir. 2012) (quoting Verizon Maryland, Inc. v. Public Service
Com’n of Maryland , 535 U.S. at 645). “A prayer for injunctive relief asking
‘that state officials be restrained from enforcing an order in contravention of
controlling federal law’ satisfies Verizon’s straightforward inquiry.” Crowe &
Dunlevy, 640 F.3d at 1155. So long as the count alleges an ongoing federal
law violation and seeks to enjoin the violation and/or to have it declared
unlawful, the pleaded relief is prospective and meets the straightforward
inquiry. See e.g., Muscogee (Creek) Nation v. Oklahoma Tax Com’n, 611
F.3d 1222, 1232-33 (10th Cir. 2010); Tarrant Regional Water Dist. v.
Sevenoaks, 545 F.3d 906, 912-13 (10th Cir. 2008); cf. Virginia Office for
Protection and Advocacy v. Stewart, ---U.S.---, 131 S. Ct. 1632, 1639
(2011) (“There is no doubt VOPA’s suit satisfies the straightforward inquiry.
It alleges that respondents’ refusal to produce the requested medical records
violates federal law; and it seeks an injunction requiring the production of
the records, which would prospectively abate the alleged violation.”);
Chester Bross Const. Co. v. Schneider, 886 F. Supp. 2d 896, 905 (C.D. Ill.
16

2012) (“An allegation that a state official enforces a law in contravention of
controlling federal law is sufficient to allege an ongoing violation of federal
law for the purposes of Ex parte Young.” (citation omitted)).
Looking principally at the proposed first amended complaint, in
their procedural due process counts, two and three, the plaintiffs seek
declaratory relief against King and Younger in their official capacities that the
plaintiffs are entitled to notice and a hearing before removal from the AListing/PQL and injunctive relief against them to provide the plaintiffs with
notice and hearing and to restore the quarries to the A-Listing/PQL until the
hearings are held. Count seven (equal protection) seeks injunctive relief
against the individual defendants in their official capacities by enjoining
enforcement of the new testing regimes, by requiring the prequalification of
the plaintiffs’ quarries, or by ordering the testing of the plaintiffs’ quarries
within a reasonable period of time. Count eight (substantive due process)
seeks injunctive relief against defendants in their official capacities by
enjoining enforcement of the new testing regimes and by restoring the
plaintiffs’ quarries to the A-Listing/PQL. Count nine (void for vagueness)
seeks to enjoin the defendants in their official capacities from removing the
plaintiffs’ quarries for any reason that is not based on KDOT’s rules or
regulations. On the face of these allegations, the plaintiffs have put forward
claims of ongoing federal violations for which they seek prospective relief. At

17

this juncture, it would appear that these claims do fall within the Ex Parte
Young exception and are not barred by the Eleventh Amendment.
Finally, the defendants argue the plaintiffs are throwing out the
“individual capacity” label just to avoid Eleventh Amendment immunity for
monetary relief. The defendants say their activities from which the plaintiffs
claim injury and seek relief were simply a function of the defendants’ official
positions at KDOT. The defendants posit that “[o]nly KDOT is charged with
overseeing the construction of roads in Kansas and it is KDOT—not one or
more individuals—that establishes the standards and policies that ensure
that roads are of the property (sic) quality and durability.” (Dk. 40, p. 20).
Contending the plaintiffs’ claims are really official capacity actions for
monetary damages, the defendants believe the Eleventh Amendment should
bar the plaintiff’s claims for monetary damages.
Because the plaintiffs sue for monetary damages against the
individual defendants in their individual capacities, they seek damages only
from the individuals and not the state. It is clear that Eleventh Amendment
immunity does not protect the individual defendants from such suits:
Eleventh Amendment immunity is available when suits seeking
damages are brought directly against a state. See Buchwald v. Univ. of
N.M. Sch. of Med., 159 F.3d 487, 494 n. 3 (10th Cir. 1998); Johns v.
Stewart, 57 F.3d 1544, 1552 (10th Cir. 1995). As a general rule, suits
seeking damages from state officials in their individual capacities are
not barred by the Eleventh Amendment. See Hafer, 502 U.S. at 30-31,
112 S.Ct. 358; Papasan v. Allain, 478 U.S. 265, 277 n. 11, 106 S.Ct.
2932, 92 L.Ed.2d 209 (1986). “[A] suit for money damages may be
prosecuted against a state officer in his individual capacity for
unconstitutional or wrongful conduct fairly attributable to the officer
18

himself, so long as the relief is sought not from the state treasury but
from the officer personally.” Alden v. Maine, 527 U.S. 706, 757, 119
S.Ct. 2240, 144 L.Ed.2d 636 (1999). The Eleventh Amendment is not
implicated in such suits because any award of damages will be
satisfied from the individual's personal assets and will not be paid from
the state treasury. If the sovereign is obligated to pay any damage
award entered against the state official, however, the Eleventh
Amendment bars the suit. See Edelman v. Jordan, 415 U.S. 651, 663,
94 S.Ct. 1347, 39 L.Ed.2d 662 (1974).
Cornforth v. University of Oklahoma Bd. of Regents, 263 F.3d 1129, 1132-33
(10th Cir. 2001), cert. denied, 534 U.S. 1162 (2002). None of the
defendants’ arguments finds any traction in Tenth Circuit precedent. The
defendants cite and discuss case law that relied on other kinds of immunity
having no application here.3 The defendants misplace their reliance on the
rule of municipal liability under § 1983 as discussed in Myers v. Oklahma
County Bd. Of County Com’rs, 151 F.3d 1313, 1316 (10th Cir. 1998), and on
an Eleventh Amendment immunity ruling where the plaintiff prisoner brought
a claim for indemnity against the Kansas Department of Corrections seeking
to hold it liable for the plaintiff’s default judgment obtained against its
correctional officer, Jones v. Courtney, 466 Fed. Appx. 696 (10th Cir. 2012).
The defendants have not fashioned any viable Eleventh Amendment
argument for barring the monetary damage claims brought against them in
their individual capacities.
PERSONAL PARTICIPATION OF DEFENDANTS
At page 19, the defendants give an incomplete citation to a Martin case
that relied on immunity created under the Local Government Antitrust Act,
and a citation to Turpin v. Koropchak, 567 F.3d 880 (7th Cir. 2009), that
relied on an Illinois sovereign immunity statute.
3

19

To their Eleventh Amendment arguments, the defendants
append two paragraphs challenging the plaintiffs’ failure to allege their
personal participation in some claims for relief. King did not become
Secretary of Transportation until over a year after the Ottawa quarry was
removed from the A-Listing. Both defendants argue the plaintiffs have failed
to allege their personal roles in the exclusion of the Mill Creek Quarry from
prequalification. The defendants seek dismissal on these claims.
“[F]or liability to arise under § 1983, a defendant's direct
personal responsibility for the claimed deprivation of a constitutional right
must be established.” Trujillo v. Williams, 465 F.3d 1210, 1227 (10th Cir.
2006). Paragraph 55 of the proposed First Amended Complaint alleges only
Younger removed the Ottawa Quarry from the A-Listing. (Dk. 31-1, p. 14).
As the plaintiffs also allege, King has refused to restore the Ottawa quarry to
the A-Listing or to grant them a due process hearing. Thus, the plaintiffs
have alleged King’s personal involvement in the ongoing constitutional
violation concerning the Ottawa quarry. With regard to the Mill Creek
quarry, the plaintiffs allege in their First Amended Complaint that King and
Younger “refused to prequalify Martin Marietta’s Mill Creek quarry until after
this suit was filed.” (Dk. 31-1, ¶ 102); see ¶ 111. The complaint plainly
alleges that King and Younger are personally responsible for refusing to
prequalify the Mill Creek quarry. The complaint is sufficient and not subject
to dismissal on this ground.
20

COUNT ONE: VIOLATION OF K.A.R. § 36-31-2
The defendants deny that this regulation or its enabling statute,
K.S.A. 68-404(1), supports the availability of any private right of action.
The defendants correctly argue there is nothing to demonstrate that the
legislature intended to create such a right. Additionally, the defendants
explain that none of KDOT’s actions challenged here meet the regulatory
definition of “debarment,” that is, “an exclusion or bar from contracting with
or bidding on contracts let by the secretary for a specified period of time.”
K.A.R. § 36-31-1(f). The plaintiffs argue that the detailed debarment
proceedings “suggest a desire to insure that persons who are debarred get
their day in court, which is consistent with a private right of action.” (Dk. 36,
p. 25). It is noteworthy that instead of replying to the defendants’ additional
arguments regarding K.A.R. § 36-31-2, the plaintiffs concede the dismissal
without prejudice of this count should the court grant leave to amend.
The court dismisses this count without prejudice at the plaintiffs’
invitation. If this issue had been fully discussed and analyzed, the court
would have likely concluded that Kansas case law does not support a private
right of action under this regulation. The parties offer nothing from
legislative history to suggest that a private right of action was intended.
Pullen v. West, 278 Kan. 183, 194, 92 P.3d 584 (2004). The parties cite to
no relevant implementing statutes that reveal any legislative intent to create
a private right of action or to have KDOT create one. Id. at 195. Even
21

presuming the debarment procedures are relevant to this analysis, one
would likely consider the scheme to be a comprehensive effort to have these
matters addressed administratively by KDOT and subject to any appropriate
judicial review. Count one is dismissed without prejudice.
COUNTS TWO AND THREE—PROCEDURAL DUE PROCESS
The plaintiffs propose pleading in their First Amended Complaint
that they have “a liberty and property interest in being on the A-Listing/PQL
and in supplying limestone from its Ottawa and Sunflower Quarries to KDOT
projects, provided it meets all validly adopted requirements to be on the AListing/PQL.” (Dk. 31-1, ¶ 52). They allege their due process rights were
violated when the two quarries were removed from the A-Listing/PQL
without providing prior notice and a hearing and without granting their
subsequent requests for a hearing.
The Fourteenth Amendment forbids a State from depriving “any
person of life, liberty, or property, without due process of law.” U.S. Const.
amend. XIV, § 1. To bring a procedural due process claim, the plaintiff “must
have a liberty or property interest in the outcome of the proceedings,”
Aguilar-Aguilar v. Napolitano, 700 F.3d 1238, 1244 (10th Cir. 2012)
(internal quotation marks and citation omitted), or must have had a liberty
or property interest “that was injured or revoked without proper procedural
protections,” Schanzenbach v. Town of La Barge, 706 F.3d 1277, 1283-84
(10th Cir. 2013) (citation omitted).
22

Property Interest
“To have a property interest in a benefit, a person clearly must
have more than an abstract need or desire for it. He must have more than a
unilateral expectation of it.” Board of Regents of State Colleges v. Roth, 408
U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). Instead, he must
“have a legitimate claim of entitlement to it.” Id. Protected entitlements do
not arise from the Constitution but “are created and their dimension are
defined by existing rules or understandings that stem from an independent
source such as state law.” Town of Castle Rock, Colo. v. Gonzales, 545 U.S.
748, 756 (2005) (internal quotation marks and citation omitted). “[A]
benefit is not a protected entitlement if government officials may grant or
deny it in their discretion.” Id. The determination of whether a property
interest exists has “state-law underpinnings, [but] is ultimately one of
federal constitutional law.” Id. The Supreme Court has explained:
Although the underlying substantive interest is created by an
independent source such as state law, federal constitutional law
determines whether that interest rises to the level of a legitimate claim
of entitlement protected by the Due Process Clause. . . . Resolution of
the federal issue begins, however, with a determination of what it is
that state law provides.
Id. “Whether a protected property interest exists is a legal question that the
Court may decide on a Motion to Dismiss.” Maple Ave. Repair Service, LLC v.
Town of North Haven, --- F. Supp. 2d ---, 2013 WL 593783 at *3 (D. Conn.
2013) (internal quotation marks and citation omitted); see Natale v. Town of
Ridgefield, 170 F.3d 258, 263 (2nd Cir. 1999) (“In almost all cases, the
23

existence of a federally protectable property right is an issue of law for the
court,” unless the existence of this right or interest turns on disputed factual
issues.); Continental Coal, Inc. v. Cunningham, 511 F. Supp. 2d 1065, 1079
(D. Kan. 2007) (the existence of a “protectable interest is a question of law
for the Court.”). The plaintiffs contend they have alleged sufficient facts to
state a claim that is plausible on its face and that raises a right to relief
which is above speculative. The plaintiffs believe their allegations are enough
to show that with discovery they can prove the existence of protected
constitutional interests.
The plaintiffs allege that “KDOT has adopted standards and
specifications for construction aggregate it will accept for inclusion on it’s Alisting/PQL” and that these “specifications are objective and address the
requirements” for materials acceptable on KDOT projects. (Dk. 31-1, ¶ 51).
The plaintiffs also allege that the defendants “apply these standards and
specifications as a rule or regulation” and that neither these provisions nor
any other Kansas law permits the defendants to keep off a quarry or to
remove a quarry from “the A-Listing/PQL if it meets the objective standards
and specifications.” (Dk. 31-1, ¶ 51). While not alleged in the proposed
amended complaint, the plaintiffs point to the statutory power given the
Secretary of KDOT to “devise and adopt standard plans and specifications for
road . . . construction,” K.S.A. 68-404(c), and “to adopt rules and
regulations to carry out the provisions of this act,” K.S.A. 68-404(k).
24

The plaintiffs assert the defendants have exercised this authority
in adopting the “Standard Specifications for State Road and Bridge
Construction (2007)” and supplemented them with “Special Provision to the
Standard Specifications, 2007 Edition.” (Dk. 36, p. 11). The plaintiffs quote
from these specifications the following: “The Engineer will accept
aggregates for on-grade concrete based on the prequalification required by
this specification, and by the requirements of subsection 1101.5” Id. at 1112. The plaintiffs read none of the specifications as giving the defendants the
discretion to bar or remove a quarry from the prequalified list if it satisfies
the fixed and readily ascertainable specifications. The plaintiffs refer to §
1101.4 that provides, “[a]pproved sources remain approved only if there are
no major changes in the production methods or deposit characteristics.”
Based on these provisions, the plaintiffs claim a reasonable expectation that
their quarries would remain prequalified so long as they complied with the
adopted specifications. Finally, the plaintiffs argue they will show a course of
dealing that created the same mutual understanding between the
defendants and the industry, that KDOT publishes the specifications for this
purpose, and that KDOT personnel relies on the specifications in determining
which quarries are on the prequalified list.
The defendants clarify that the removal of the plaintiffs’ quarries
from the A-Listing/PQL only keep the defendants from supplying one class of
quarry aggregate for concrete used by contractors in on-grade pavement
25

projects. The defendants have not denied the plaintiffs from doing business
in Kansas or from using their quarry material for other uses in the
construction of state highways. The defendants point out that there is no
express or implied contract created by the quality specifications adopted by
KDOT. The defendants have no objection to the Court taking judicial notice
of KDOT’s specifications or other public documents discussed in the parties’
briefings.
At the outset, the defendants observe that the specifications
define the contract as between the contractor and the Secretary of KDOT
and specifically define suppliers as follows:
An individual, partnership, corporation, other legal entity, or any
combination thereof (joint venture) from which the Contractor obtains
commodities needed to fulfill the contract. Suppliers are not a party to
the contract between the Secretary and Contractor. However, the
Contractor assumes liability for the suppliers as if the Contractor were
providing the commodities with its own forces. Thus, when the
specifications refer to the word “Contractor” but suppliers are
providing the commodities the word “Contractor” includes the
suppliers.
KDOT 2007 Standard Specifications for State Road and Bridge Construction,
Definitions, § 101, p. 100-9.4 Besides the lack of privity, the defendants
argue that the Engineer retains the discretion to remove material from the
prequalified list of quarries. In particular, the defendants look to subsection
1101.5 that states, even for aggregates from approved sources, “KDOT
reserves the right to re-sample, test and reject any previously accepted
4

http://www.ksdot.org/burconsmain/specprov/2007/101.pdf A copy
appears as Appendix One.
26

aggregate if the Engineer has reason to believe it no longer complies with
the Contract Documents.” KDOT 2007 Standard Specifications for State Road
and Bridge Construction, General Requirements for Aggregates, § 1101.5, p.
2 (bolding added).5 Similar provisions are found in § 106 that govern the
source of supply and give the Engineer or Inspector the authority to “reject
materials at the project site even if the Engineer or Inspector previously
approved the materials at the source of supply” and the authority to “reject
the materials if, at any time, the Engineer determines the materials do not
meet the Contract Documents.” KDOT 2007 Standard Specifications, Control
of Materials, § 106.1(b).6 Finally, the defendants point to Part V of the
Construction Manual, incorporated into a contract pursuant to Specifications
at § 101.3. This part of the Manual includes the following relevant
provisions in Part V that govern the inspection, sampling, testing and
acceptance of aggregates are the following:
Class I and Class II Aggregates are composed of crushed
limestone or dolomite. Additional testing is performed on concrete
produced with Class I and Class II Aggregates to determine if
acceptable levels of concrete freeze/thaw resistance are provided. The
freeze/thaw testing is intended to reduce the risk of the occurrence of
premature “D-Cracking”. Class I and Class II Aggregates are intended
for use in “on-grade” concrete slabs such as Portland cement concrete
pavement. Prequalification to produce Class I and Class II Aggregate is
granted to a quarry on a bed by bed basis for each distinct bed in the
quarry face. “Official Quality” sampling and testing is also required.
The acceptance of Class I and Class II aggregate is contingent upon
http://www.ksdot.org/burconsmain/specprov/2007/1101.pdf A copy
appears as Appendix Two.
6
http://www.ksdot.org/burconsmain/specprov/2007/106.pdf A copy appears
as Appendix Three.
5

27

production being from approved beds and in compliance with “Official
Quality” requirements.
....
(5) Continuation of Prequalified Status for Class I and Class
Aggregates
After a quarry has been prequalified to produce Class I and Class
II Aggregate from a specific bed(s) the prequalified status will continue
as long as no major changes are made in the production process or
occur in the deposit characteristics. Changes in deposit characteristics
may be discovered either visually or through test results performed on
Production Samples.
....
When any party feels that any change in the prequalified status
of a quarry is warranted they should notify the DME [District Materials
Engineer] responsible for quarry inspection who in turn will advise the
Chief of Materials and Research. The Chief of Materials and Research
will review all available information on the changed conditions and
render a decision on any such changes. Official notification of any
change in Class I and Class II Aggregate Production status for a quarry
will be provided by the DME to the quarry owner/operator and the
appropriate contractors.
KDOT Construction Manual Part V-Materials § 5.02.05(c)(1) and (5) (2007).7
From these provisions, the defendants argue that KDOT reserves the right to
reject materials even from prequalified sources based on the Engineer’s
judgment and that KDOT retains the discretion to change the prequalified
status of a quarry based on its review and evaluation of available
information. Because this discretion resides with KDOT, the defendants insist
the plaintiffs cannot have a legitimate expectation to remain on the AListing/PQL indefinitely and to supply limestone as an aggregate for KDOT
on-grade concrete projects.

http://www.ksdot.org/burConsMain/Connections/ConstManual/pdfact5/02.p
df. A copy appears as Appendix Four.
7

28

After a close review of the cited state laws and KDOT’s
specifications and construction manual, the court concludes for all the
reasons discussed below that, the plaintiffs are unable to allege a plausible
claim of a protected property interest in remaining on the A-Listing/PQL or in
supplying aggregate for concrete in KDOT’s on-grade pavement projects.
The plaintiffs place great weight upon the KDOT’s development of detailed
specifications for concrete aggregate used on KDOT’s on-grade pavement
projects. The plaintiffs rely on case law from other settings where the use of
detailed and objective criteria indicated the government’s discretion was so
circumscribed as to give rise to certain expectations of entitlement. The
court is not inclined to apply these propositions wholesale to the allegations
in this case. To assume that the detailed, technical and objective nature of
the specifications and testing criteria reflects an effort to limit KDOT’s
discretion in enforcing and applying these standards ignores the nature and
function of KDOT’s highly technical work and its compelling public safety
responsibility. This assumption too would open up much of KDOT’s express
statutory responsibility of testing, researching and inspecting materials used
for state highway projects to scrutiny on constitutional grounds. See K.S.A.
68-404(h). Owing to its breadth, this statutory mandate plainly and
necessarily vests all such matters in the full discretion of KDOT to develop its
own criteria, methods and procedures for this public safety purpose. The
related regulations and specifications do not otherwise restrict or delimit the
29

manner, the scope or content of that discretion to such an extent as to give
rise to an entitlement. This is not instance where the discretion is
“constrained by particularized and comprehensive standards, criteria or
conditions outlined by statute such that the public decisionmaker acts more
like a conduit for distributing benefits to qualified bidders than an officer
charged with making a determination that is judicial in its nature and
character.” Interior Contractors, Inc. v. Board of Trustees of Newman
Memorial County Hosp., 185 F. Supp. 2d 1216, 1228 (D. Kan. 2002)
(quotation marks and citations omitted). The court takes this approach in
part because these statutes are not the government’s efforts to regulate or
license an industry, trade or business but rather are the government’s
efforts to insure that only quality materials are used in state highway
construction. See Interior Contractors, Inc., 185 F. Supp. 2d at 1229
(“Because Kansas competitive bidding laws do not exist to benefit bidders,
the lowest bidder is unable to assert any interest thereunder entitled to
constitutional protection.”) When placed against this backdrop of apparent
governmental purposes and goals, the construction specifications and
standards isolated and cited by the plaintiffs, as well as the purported
practices involving them, are simply not enough to allege a plausible claim of
a property interest.
The plaintiffs allege they have a property interest in remaining
on the A-Listing/PQL and in supplying its aggregate based on having met the
30

published state specifications for that particular concrete aggregate. The
plaintiffs argue that the specifications do not empower the defendants to
remove a quarry from the A-Listing/PQL if the quarry meets the standard
specifications so long as there are no major changes in production methods
or deposit characteristics. In making this argument, the plaintiffs rely on §
1101 of the specifications that speak to the basis of approving, certifying
and accepting aggregates.
This specification at § 1101 indicates that approval or
prequalification remains only an initial determination and plainly
distinguishes between approving a source and accepting aggregates. The
specification then conditions acceptance of aggregates upon KDOT’s express
reservation of “the right to re-sample, test and reject any previously
accepted aggregate if the Engineer has reason to believe it no longer
complies with the Contract Documents.” KDOT 2007 Standard Specifications
§ 1101.5(b).8 Thus, the acceptance of aggregate on a project is left to the
Engineer having no reason to believe that the aggregate fails to comply with
all applicable requirements found within “Contract Documents,” defined to
include: “the proposal, exploratory work documents, addenda, amendments,
contract form, contract bond, standard specifications, special provisions,
project special provisions, general plans, detailed plans, the notice to
proceed, material test methods, material test reports, materials

8

See supra footnote 5.
31

certifications, Part V of the KDOT Construction Manual, change orders, . . . .”
KDOT 2007 Standard Specifications § 101.9 Thus, that a source or supplier
has been approved is not a guarantee that its product will be accepted and
used on a project. See Interior Contractors, Inc. v. Board of Trustees of
Newman Memorial County Hosp., 185 F. Supp. 2d 1216, 1226 (D. Kan.
2002) (no legitimate claim of entitlement to a public contract when public
body retains discretion to reject all bids); Ruby-Collins, Inc. v. Cobb County,
237 Ga. App. 517, 515 S.E.2d 187, 189 (1999) (“The existence of such a
discretion to reject bids is incompatible with an objectively reasonable
expectation of legitimate claim of entitlement by any prospective bidder. . . .
Consequently, we hold that RCI has no protected property interest in
remaining on a list of potential bidders pre-qualified to bid on future public
works contracts.”), reconsideration denied (Apr. 7, 1999), and cert. denied
(Sept. 10, 1999).
Being on the prequalified list is not a protected interest, since it
does not assure the particular outcome, that is, KDOT’s acceptance of the
aggregate. “[I]t is well established that an entitlement to nothing but
procedure [to be considered as a possible supplier on a KDOT project]
cannot be the basis for a property interest.” Teigen v. Renfrow, 511 F.3d
1072, 1081 (10th Cir. 2007) (quotation marks and citation omitted) (“To be
considered for a promotion in accordance with the state system of merit is
http://www.ksdot.org/burconsmain/specprov/2007/101.pdf A copy
appears as Appendix Five.
9

32

no more than a claim of entitlement to a fair process,” and this is not “a
substantive right” creating a “property interest.”). KDOT retains its own
discretion to inspect, test and judge whether the aggregate complies with all
contract documents, and KDOT is not bound under the different
specifications to reach a particular outcome. See Schanzenbach v. Town of
La Barge, 706 F.3d 1277, 1284-85 (10th Cir. 2013). KDOT is expressly
vested with the discretion to reject the aggregate material if it has “reason
to believe” the aggregate does not comply with any applicable contract
document, including the standard specifications.
Nor do the plaintiffs cite any statutes, standards or regulations
from which one plausibly can infer that the prequalified status is to serve as
or equate to a license or certificate to do business. Cf. Glover v. Mabrey, 384
Fed. Appx. 763, 2010 WL 2563032 (10th Cir. 2010) (Oklahoma provided
that prequalification to bid on ODOT contracts is not a license). Instead, the
specifications reveal that they function like a contract term giving KDOT the
final authority and discretion to oversee and insure that only quality
materials are used on state projects. “Inspection, testing and approval of
Contractor-furnished sources of supply are for KDOT’s benefit, not to ensure
Contractor quality control (QC) results. This inspection, testing, and approval
is (sic) not a substitute for the Contractor’s obligation to provide acceptable
sources of supply.” KDOT Standard Specifications § 106.1(a)(6).10 In short,

10

See supra footnote 6.
33

KDOT’s approval of a source is nothing on which a Contractor can rely as
absolving it of responsibility of providing quality product. This process of
inspection, testing and approval is to benefit KDOT, not the contractor or its
third-party suppliers.
The defendants offer other standard specifications that restate
the discretion retained by KDOT’s Engineer or Inspector to inspect materials
at any time, even those from previously approved sources, and to reject
them if the Engineer determines the materials are not meeting the contract
documents. KDOT 2007 Standard Specifications § 106.1. “The Engineer,
Inspector, or both may inspect, test, and approve or reject all materials
before, during, and after incorporation into the work.” KDOT 2007 Standard
Specifications § 106.3.11 Among the referenced contract documents is Part V
of the Construction Manual which spells out that the prequalification of Class
I and Class II aggregates (crushed limestone or dolomite) as being done “on
a bed by bed basis for each distinct bed in the quarry face” and that “official
quality sampling and testing is also required.” KDOT Construction Manual,
Part V, § 5.02.05(c)(1).12 “[T]he Engineer of Tests will review sample
records and perform Class I and Class II testing on at least three samples
per quarry per year provided sufficient samples are submitted for testing.”

http://www.ksdot.org/burconsmain/specprov/2007/106.pdf A copy appears
as Appendix Six.
12
See supra footnote seven.
11

34

Id. at (c)(4)(c).13 This same section also conditions prequalification for “as
long as no major changes are made in the production process or occur in the
deposit characteristics,” but should “any party feel[] that any change in the
prequalified status of a quarry is warranted” then it falls to the “Chief of
Materials and Research . . . to review all available information on the
changed conditions and render a decision on any such changes.” Id. at §
5.02.05(c)(5).14
Besides annual testing, a quarry’s prequalified status is subject
to review whenever any party “feels” a change “is warranted,” and the
status is then subject to a KDOT official’s discretionary review of all available
information on the changed conditions. As the defendants argue, these
provisions do not show that KDOT’s discretion to remove a quarry’s
prequalified status is restricted to a specific and established finding that the
quarry no longer meets a particular standard specification. This is even more
so the case because the plaintiffs have not alleged that KDOT’s discretion to
change or add to the specifications or to the requirements found in contract
documents is subject to any procedural limitations outside of a specific
contractual relationship which has not been alleged here. The plaintiffs
cannot plausibly allege a property interest from complying with some criteria
or specifications when KDOT apparently has full discretion to change or add
testing, inspection and quality criteria or provisions and to reject materials
13
14

Id.
Id.
35

and to remove the prequalified status based on the latest required criteria.
In sum, the court is convinced that these provisions reveal the prequalified
status to be too impermanent—reviewable at any time based on something
as little as a “feeling” and subject to KDOT’s significant discretion in
establishing required material criteria--as to defeat any reasonable inference
of a property interest existing in this status. See John Gil Const., Inc. v.
Riverso, 72 F. Supp. 2d 242, 252-53 (S.D.N.Y. 1999), judgment aff’d, 7 Fed.
Appx. 134 (2nd Cir. 2001). These provisions cannot be plausibly interpreted
as meaningfully limiting KDOT’s discretion as to allow removal only upon
what could be likened to just cause.
This finding of no protected property interest need not be
delayed, as plaintiffs argue, for discovery over industry understandings and
course of dealing. It is one thing for an employer’s custom and practice to
emerge from guidelines or criteria limiting the employer’s discretion and
benefitting the employee and thereby offer an alleged basis for a protected
property interest. See Gunasekera v. Irwin, 551 F.3d 461, 467 (6th Cir.
2009); Bjorklund v. Miller, 467 Fed. Appx. 758, 764-65 (10th Cir. 2012). It
is quite another to allege a custom or practice rooted in standard
specifications and related processes all of which exist to benefit the State
and protect the public, not third-party suppliers, and all of which exist,
operate, and are modifiable at the State’s full discretion. The plaintiffs offer
no allegations concerning KDOT’s acceptance of the plaintiffs’ aggregate that
36

resemble those in Martin v. Stites, 203 F. Supp. 2d 1237, 1249 (D. Kan.
2002), of a mutually explicit understanding that they “would receive all calls
to which they were entitled under the geographic and rotational tow policies
as adopted and administered.” The plaintiffs have not alleged a claim based
on mutual understandings arising apart from state policy or law. See Veile v.
Martinson, 258 F.3d 1180, 1185-1186 (10th Cir. 2001) (a property interest
claim based on county rotation policies “turn on whether the alleged claim of
entitlement is supported or created by state law such as a state statute or
regulatory scheme or decisional law.” (internal quotation marks and citation
omitted)). In sum, the record does not show the plaintiffs are capable of
alleging a protected property interest that would arise from any mutual
understandings about the A-Listing/PQL.
Liberty Interest
The plaintiffs’ proposed first amended complaint alleges a liberty
interest in being on the “A-listing/PQL” and “reputational damage from the
removal of the Ottawa quarry from the A-Listing/PQL based on the alleged
failure to produce durable concrete using Martin Marietta’s aggregate, which
impacts Martin Marietta’s ability to earn a living by selling construction
aggregate,” and “reputational damage from the removal of the Sunflower
Quarry from the PQL based on its alleged failure of KDOT’s unconstitutional
testing regime, which impacts Martin Marietta’s ability to earn a living by
selling construction aggregate.” (Dk. 31-1, ¶¶ 53, 54, 57, 58, 69, and 70).
37

The defendants argue for dismissal of these allegations because damage to
reputation alone is not a protected liberty interest and there is no additional
stigma or loss in status that has been alleged to support a stigma-plus claim
for a business plaintiff. The plaintiffs say they have an actionable liberty
interest claim by alleging that the defendants made false statements about
the quality of the aggregate taken from the plaintiffs’ quarries and that the
plaintiffs have sustained a change in legal status by the removal of the
quarries from the approved listings and the denial of property rights to
remain on that approved listings.
First, as discussed above, the plaintiffs are unable to allege a
protected property interest in having their quarries on A-listing/PQL.
“Protected liberty interests may arise from two sources—the Due Process
Clause itself and the laws of the States.” Kentucky Dept. of Corrections v.
Thompson, 490 U.S. 454, 460 (1989) (internal quotation marks and citation
omitted). The court has already concluded from the different statutes,
standard specifications, and construction manual provisions that KDOT
retains vast discretion to inspect, test and judge whether aggregate
complies with all contract documents, that KDOT is not bound by the
different specifications to reach a particular outcome, and that KDOT has the
express discretion to reject aggregate material whenever it has “reason to
believe” the aggregate does not comply with any applicable contract
document. Because the applicable Kansas law alleged here does not
38

mandate a particular outcome from a given set of predicates, the plaintiffs
cannot allege a protected liberty interest arising from state law. See
Thompson, 490 U.S. at 460-62; Elliot v. Martinez, 675 F.3d at 1241, 1246
(10th Cir. 2012); Glover v. Mabrey, 384 Fed. Appx. 763, 777 (10th Cir.
2010).
The plaintiffs do not dispute the defendants’ characterization that
their claimed liberty interest is subject to the stigma-plus standard. Instead,
the plaintiffs stand on the allegation that the removal of the quarries from
the A-Listing/PQL is enough to state a plausible claim on its face. “Damage
to one’s reputation alone, however, is not enough to implicate due process
protections. See Paul v. Davis, 424 U.S. 693, 701 (1976) (stating that
‘reputation alone, apart from some more tangible interests such as
employment, is neither ‘liberty’ or ‘property’ by itself sufficient to invoke the
procedural protection of the Due Process Clause’).” Gwinn v. Awmiller, 354
F.3d 1211, 1216 (10th Cir.), cert. denied, 543 U.S. 860 (2004). The Tenth
Circuit has laid out this stigma-plus standard in these terms:
[A] plaintiff asserting that the government has violated the Due
Process Clause by impugning his or her “good name, reputation,
honor, or integrity,” Jensen [v. Redevelopment Agency of Sandy City],
998 F.2d [1550] at 1558 [(10th Cir. 1993)], must demonstrate that:
(1) the government made a statement about him or her that is
sufficiently derogatory to injure his or her reputation, that is capable of
being proved false, and that he or she asserts is false, and (2) the
plaintiff experienced some governmentally imposed burden that
“significantly altered [his or] her status as a matter of state law.” Paul,
424 U.S. at 710-11, 96 S.Ct. 1155.

39

Id. at 1216. The plaintiffs’ complaint and arguments offer no authority,
factual or legal, for regarding the removal from the A-Listing/PQL to be a
significant change in status under state law. Because the court already has
held the removal from the A-Listing/PQL is not the denial of a federally
protected property, the plaintiffs cannot rely on the “plus” being the denial
of a property right. See WMX Technologies, Inc. v. Miller, 197 F.3d 367, 376
(9th Cir. 1999).
The plaintiffs’ complaint alleges “reputational damage” due to
the quarries’ removal from the approved listings and the “impact” or lost
opportunities for Martin Marietta to compete for contracts and profit from the
sale of construction aggregate. (Dk. 31-1, ¶¶ 57 and 58). “[P]laintiffs must
allege and present evidence of present harm to established business
relationships,” as “[d]amage to prospective employment opportunities is too
intangible to constitute deprivation of a liberty interest.” Jensen v.
Redevelopment Agency of Sandy City, 998 F. 2d 1550, 1558-59 (10th Cir.
1993) (citations omitted); See Williams v. Jaudegis, 2012 WL 3839610 at *8
(D. Kan. 2012) (“allegations of speculative future harm are too intangible to
constitute a deprivation of a liberty interest”). As a business, Martin Marietta
certainly enjoys “the freedom to operate a legitimate business . . . [as] a
protected liberty interest” but the lost ability to compete for contracts “does
not typically qualify as the kind of ‘tangible interest’ that Paul contemplated.”
Thinkstream, Inc. v. Adams, 251 Fed. Appx. 282, 284, 2007 WL 3013210 at
40

*1 (5th Cir. 2007), cert. dismissed, 553 U.S. 1050 (2008). Nor has Martin
Marietta alleged that the loss of specific contracts “itself will entail a
significant impairment to operating a business.” Id. (citing San Jacinto Sav.
& Loan v. Kacal, 928 F. 2d 697, 702 (5th Cir. 1991) (“holding that state
harassment of arcade patrons such that the arcade was forced out of
business was sufficient evidence of a § 1983 liberty interest”); State of Tex.
v. Thompson, 70 F.3d 390, 392 (5th Cir. 1995) (“holding that defamation of
a business by state officials that forced the business into bankruptcy would
qualify as a violation of a liberty interest”)); Bryn Mawr Care v. Sebelius,
898 F. Supp. 2d 1009, 1014 (N.D. Ill. 2012) (“[F]or a plaintiff corporation to
satisfy the stigma-plus standard, the plaintiff must show that its alleged
reputational harm entirely destroyed its property right.”); Martin v. Stites,
203 F. Supp. 2d at 1250-51 (economic hardship from the loss of government
business does not amount to the deprivation of a liberty interest if the
plaintiff still has private business available). Finally, this is not an instance
where the plaintiff has alleged a bidder’s liberty interest affected by a denial
or debarment for lack of business integrity or honesty. See Gaylor, Inc. v.
Franklin County Board of Commissioners, 2010 WL 909679, at *5 (S.D. Ohio
2010).
The court concludes that the plaintiffs’ proposed amended
complaint still does not allege a plausible liberty interest claim. The plaintiffs’
factual allegations do not plausibly support the destruction of a property
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interest or a significant impairment to its operating business due to the
quarries’ removal from the A-Listing/PQL. For these reasons, on counts two
and three, the court grants the defendants’ motion for judgment on the
pleadings and denies on futility grounds the plaintiffs’ motion for leave to file
a first amended complaint.
COUNTS FOUR, FIVE AND SIX—STATE TORT CLAIMS
As they appear in the proposed amended complaint, these
counts allege claims of intentional interference with business relationships,
negligent interference with business relationships, and defamation,
respectively.
Discretionary Function
There is no dispute that the defendants are “employees” of the
state, that is, “persons acting on behalf of or in service of a governmental
entity in any official capacity” for purposes of the Kansas Tort Claims Act
(“KTCA”). K.S.A. 75-6102(c), (d). The KTCA makes governmental entities
and their employees liable for a “negligent or wrongful act or omission.”
K.S.A. § 75–6103(a). “Under the KTCA, liability is the rule and immunity
from liability is the exception.” Thomas v. Board of Shawnee County
Comm’rs, 293 Kan. 208, 233, 262 P.3d 336 (2011) (citations omitted). The
defendants argue for the discretionary function exception under K.S.A. 756104(e), and they “bear the burden of demonstrating entitlement to
immunity under an exception.” Id. (citation omitted). “Only negligent or
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wrongful acts or omissions of employees are excepted from liability by 756104, while acts or omissions involving more than the lack of ordinary care
and diligence are not.” Moran v. State, 267 Kan. 583, 596, 985 P.2d 127
(1999) (internal quotation marks and citation omitted). Thus, the defendants
may “not be granted immunity under K.S.A. 1998 Supp. 76-6104(e) for
defamatory statements,” id., or for intentional interference with business
relations. The court will not discuss the applicability of this exception to
count five, as Kansas law does not recognize this tort action on the facts
alleged here.
Count Five--Negligent Interference with Business Relationships
The plaintiffs do not come forward with any Kansas case law,
and the court has found none, that would recognize this to be a viable legal
claim for relief in Kansas. The plaintiffs’ memoranda lack any cogent reasons
for not following the unpublished Kansas federal district court opinion that
has summarily rejected and dismissed a similar claim as a matter of Kansas
law. Aces Transport, Inc. v. Ryan Transp. Services, Inc., 2006 WL 1487008
at *9 (D. Kan. 2006). The court notes the plaintiffs’ willingness to dismiss
this claim without prejudice should the court grant their motion for leave to
amend. (Dk. 47, p.3 n.1). The court, however, grants the defendants’
motion and dismisses this claim with prejudice because there is no Kansas
case law to sustain such a legal theory on these facts. The court also denies
the plaintiffs’ leave to file an amended complaint with this claim.
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Count Six-Defamation
The plaintiffs allege in their proposed first amended complaint
the defendants have made defamatory representations that their quarries do
not meet the specifications and “validly adopted, constitutional
requirements” to be on the A-Listing/PQL. (Dk. 31-1). The defendants first
argue that assuming the removal of the quarries is a representation then the
plaintiffs are bringing a tort of product disparagement or injurious falsehood
that is not recognized in Kansas. In response, the plaintiffs expand their
claim arguing that the defendants’ representations also implicate Martin
Marietta’s work and processes involved in extracting and preparing the
aggregate for concrete use. The plaintiffs construe the defendants’
representations to be an accusation “that Martin Marietta’s mining plans,
production plans, and quality-control mechanisms are unreliable.” (Dk. 36,
p. 29). The plaintiffs believe their claim is for the defamation of “the quality
of Martin Marietta itself, as a company, and its quarries.” Id. In reply, the
defendants note that the proposed amended complaint does not allege any
direct representations about Martin Marietta’s abilities and that the claim
alleges only the act of removing the quarries from the pre-qualified list. The
defendants argue that Kansas law has not recognized a defamation claim for
insinuations drawn from actions and that interpreting the removal of the
quarries from this approved list as a statement that Martin Marietta is a bad
quarry operator is an insufficient basis for stating a claim. Finally,
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defendants say that Martin Marietta has admitted their Sunflower Quarry
failed the 660 cycle testing (Dk. 31-1, ¶ 114) and was removed for that
reason, so this truth prevents any defamation claim on these facts. The
plaintiffs do not address these additional points in their reply. (Dk. 40).
“Kansas courts have not recognized the tort of product
disparagement.” Hartford Fire Ins. Co. v. Vita Craft Corp., --- F. Supp. 2d
---, 2012 WL 6003027 at *10 n.12 (D. Kan. 2012) (citing St. Catherine
Hosp. v. Rodriguez, 25 Kan. App. 2d 763, 768, 971 P.2d 754. 757 (1998)).
This tort “is known variously as commercial disparagement, trade libel,
slander of goods and disparagement of property.” Williams v. Evogen, Inc.,
2013 WL 969808 at *7 n.3 (D. Kan. 2013). This tort turns on a critical
statement being made about “the quality of the plaintiff’s goods or services.”
Hartford Fire Ins. Co., 2012 WL 6003027 at *10 n. 12.
Martin Marietta proposes alleging in count six no more than the
defendants made critical representations about their goods (aggregate) or
property (quarries) by removing the Ottawa and Sunflower Quarries from
the A-Listing/PQL. There is no allegation the defendants represented that
Martin Marietta lies about its products which was the business defamation
claim recognized in Sunlight Saunas, Inc. v. Sundance Sauna, Inc., 442 F.
Supp. 2d 1160, 1167 (D. Kan. 2006). Nor are there allegations of
representations relating to Martin Marietta’s financial integrity, financial
soundness, or ethical business practices. See National Motor Club of
45

America, Inc. v. Auto Club of America Corp., 2003 WL 715902 at *4-*5 (D.
Kan. 2003). As alleged, count six is a claim for product disparagement which
is not a recognized tort under Kansas law.
The defendants argue that the defendants’ removal of the
quarries somehow implicates Martin Marietta’s business plans and practices.
The court fails to see how this implication, tenuously argued and never
alleged, approaches what Kansas courts have recognized as actionable
claims of business defamation. More importantly, the court fails to see how
this claim is plausible given that the plaintiffs have alleged at paragraph 19
of their proposed first amended complaint that:
KDOT, Miller, and Younger purportedly removed the Ottawa Quarry
from the A-Listing because a KDOT employee allegedly observed DCracking in the pavement at multiple stretches of road containing
limestone from a quarry that is now operated by Martin Marietta, but,
at the time of construction of the pavement, was operated by another
entity.
(Dk. 31-1, ¶ 19). Thus, the defendants’ removal of Ottawa quarry from the
A-Listing does not implicate Martin Marietta’s business practices because it
did not even own the quarry when the aggregate in question for D-Cracking
was provided. As for the Sunflower Quarry, the plaintiffs alleged the
defendants removed it from the PQL because it “allegedly failed the
durability-factor standard at 660 cycles by a very narrow margin, while
passing other criteria.” (Dk. 31-1, ¶¶ 35-37). The defendants rightly
challenge how the plaintiffs have alleged or can allege any false statement
with respect to Sunflower Quarry’s removal. For all these reasons, the court
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grants the defendants’ motion against this defamation claim and denies the
plaintiffs’ leave to file an amended complaint with this count.
COUNT SEVEN: 42 U.S.C. § 1983--EQUAL PROTECTION
The defendants repeat only their Eleventh Amendment challenge
to this count. The court’s above rulings on the Eleventh Amendment issues
applies to this count.
COUNT EIGHT: 42 U.S.C. § 1983—SUBSTANTIVE DUE PROCESS
The court’s above rulings on the plaintiffs’ inability to allege a
liberty or property interest in being on the A-listing/PQL and in supplying
construction aggregate from its quarries precludes them from pursuing this
count too. The court grants the defendants’ motion on this count and denies
the plaintiffs’ leave to include this count in their amended complaint.
COUNT NINE: VOID FOR VAGUENESS, IN THE ALTERNATIVE TO
COUNTS I THROUGH III, VII, AND VIII
The plaintiffs seek to add this count in their proposed amended
complaint. The defendants offer no arguments for opposing its addition.
Thus, the court will grant the plaintiffs’ leave to add this count.
COUNT TEN: VIOLATION OF THE TAKINGS CLAUSE
Having already ruled that the plaintiffs have not alleged a
protected property interest in being on the A-Listing/PQL, the court will
dismiss this claim and deny leave to include this claim in the proposed
amended complaint.

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COUNTS ELEVEN AND TWELVE: INJUNCTIVE AND DECLARATORY
RELIEF
Because these counts only allege particular kinds of relief and do
not allege separate causes of action, their legal force depends on construing
and linking them to the counts where such relief may be available. As
pleaded and here construed, counts eleven and twelve seek injunctive and
declaratory relief with respect to the remaining counts seven (equal
protection) and nine (void for vagueness).
ATTORNEYS’ FEES
The defendants note that the plaintiffs repeat in each count a
request for “attorneys’ fees.” The plaintiffs explain that they are entitled to
pursue fees under the plain language of 42 U.S.C. § 1988. The plaintiffs
offer no authority for seeking fees in their remaining state tort claim, count
four: “intentional interference with business relationships.” The court grants
the defendants’ motion to strike this request for fees from count four of the
proposed amended complaint.
IT IS THEREFORE ORDERED that with respect to the following
counts: One (Violation of K.A.R. § 36-31-2), Two (Violation of 42 U.S.C. §
1983: Procedural Due Process—Pre-Deprivation Notice and Hearing), Three
(Violation of 42 U.S.C. § 1983: Procedural Due Process—Post-Deprivation
Notice and Hearing), Five (Negligent Interference with Business
Relationships), Six (Defamation), Eight (Violation of 42 U.S.C. § 1983:
Substantive Due Process) and Nine (Ten in Amended Complaint) (Violation
48

of the Takings Clause), the defendants’ motion for judgment on the
pleadings pursuant to Fed. R. Civ. P. 12(c) (Dk. 22) is granted, and the
plaintiffs’ motion for leave to file first amended complaint pursuant to Fed.
R. Civ. P. 15(a)(2) (Dk. 31) is denied;
IT IS FURTHER ORDERED that the plaintiffs’ request for
attorneys’ fees is stricken from the remaining state law count Four
(Intentional Interference with Business Relationships) and that counts Ten
and Eleven (Eleven and Twelve in amended complaint) are construed as
not alleging separate causes of action but only as seeking injunctive and
declaratory relief for the remaining counts Seven (Violation of 42 U.S.C. §
1983: Equal Protection) and Nine (Amended Complaint Alternative Count of
Void for Vagueness);
IT IS FURTHER ORDERED that KDOT is dismissed from all counts
and leave to amend to include KDOT as a party defendant in any count is
denied; and that with respect to any count claiming relief for a violation of
state tort law or state constitutional law, the individual defendants in their
official capacities are dismissed and leave to amend to include them in their
official capacities is denied;
IT IS FURTHER ORDERED that the defendants’ motion for
judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c) (Dk. 22) is
denied, and the plaintiffs’ motion for leave to file first amended complaint
pursuant to Fed. R. Civ. P. 15(a)(2) (Dk. 31) is granted with respect to
49

counts Four (Intentional Interference with Business Relationships), Seven
(Violation of 42 U.S.C. § 1983: Equal Protection), Nine (Amended
Complaint Alternative Count of Void for Vagueness), and counts Ten and
Eleven (Eleven and Twelve in amended complaint) seeking injunctive and
declaratory relief respectively, as subject to all other rulings in this order.
Dated this 21st day of May, 2013, Topeka, Kansas.

s/ Sam A. Crow
Sam A. Crow, U.S. District Senior Judge

50