Kitras et al v. Temple et al

Filing 36

Judge Allison D. Burroughs: MEMORANDUM AND ORDER entered. It is hereby ordered that (1) Defendant's Motion to Dismiss [ECF No. 15] is GRANTED to the extent that the Complaint is dismissed without prejudice to whatever right Plaintiffs might have to pursue both counts in state court; (2) Plaintiffs' Motion for Leave to File Amended Complaint [ECF Nos. 25 & 26] is DENIED; and (3) Plaintiffs' Motion for Hearing [ECF No. 28] is DENIED.SO ORDERED. (Montes, Mariliz)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
MARIA A. KITRAS and JAMES J.
DECOULOS, AS CO-TRUSTEES OF
THE GORDA REALTY TRUST,
Plaintiffs,
v.
PETER TEMPLE, et al.,
Defendants.

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Civil Action No. 16-cv-11428-ADB

MEMORANDUM AND ORDER
BURROUGHS, D.J.
Plaintiffs Maria A. Kitras and James J. Decoulos, as co-trustees of the Gorda Realty Trust
(the “Trust”), allege that the town of Aquinnah (the “Town”), and certain of its boards and
officials, prevented them from making improvements on their real estate through improper delay
and denial of regulatory approval, which amounted to a temporary taking of their property and a
violation of their rights to equal protection. Currently pending before the Court are Defendants’
Motion to Dismiss [ECF No. 15], Plaintiffs’ Motion for Leave to File Amended Complaint [ECF
No. 25], 1 and Plaintiffs’ Motion for Hearing on the pending motions [ECF No. 28]. 2
Plaintiffs’ Motion for Hearing is DENIED. For the reasons set forth below, the Court
GRANTS the Defendants’ Motion to Dismiss without prejudice to whatever right Plaintiffs

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Plaintiffs filed a copy of their proposed amended complaint as a separate Motion to Amend
Complaint [ECF No. 26]. The Court DENIES the motion but considers ECF No. 26 as an exhibit
to Plaintiffs’ Motion for Leave to File Amended Complaint.
2 A party making or opposing a motion who wants to request oral argument should do so “in a
separate paragraph of the motion or opposition,” as opposed to a standalone motion. See L.R., D.
Mass. 7.1(d).

might have to pursue both counts of the Complaint in state court and DENIES Plaintiffs’ Motion
for Leave to File Amended Complaint.
I.

BACKGROUND
In 1998, Plaintiffs began seeking regulatory approval to build a three-bedroom home and

related improvements on the Trust’s property located in the Town. [ECF No. 1 ¶¶ 1–2, 23]
(“Compl.”). Since then, Plaintiffs have participated in several administrative and judicial
proceedings in pursuit of their proposed construction plan, id. ¶ 25, including with the Town
Conservation Commission, the Massachusetts Department of Environmental Protection, the
Division of Administrative Law Appeals, and the Middlesex Superior Court. Id. ¶¶ 26–36.
Plaintiffs also sought and obtained approval of their proposed septic system from the Town
Board of Health and a letter from the Natural Heritage and Endangered Species Program
confirming that their proposal would not unduly harm an endangered or threatened species. Id.
¶¶ 40–44.
After this protracted series of proceedings, on July 22, 2011, Plaintiffs applied to the
Town Planning Board and its Plan Review Committee for a Special Permit pursuant to the Town
bylaws. Id. ¶ 45. The bylaws required a “Special Permit” from the Plan Review Committee for
the siting of a new structure or dwelling on the property, or for making additions to existing
structures. Id.; [ECF No. 16-1 at 9]. Plaintiffs provided the Plan Review Committee with
supporting documents to demonstrate that, among other things, their proposal satisfied the
bylaws’ requirement of a minimum amount of frontage. 3 Compl. ¶¶ 49–52. At a public hearing

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See generally Gifford v. Planning Bd. of Nantucket, 383 N.E.2d 1123, 1126 (Mass. 1978)
(“[T]he purpose of a frontage requirement is to make certain that each lot ‘may be reached by the
fire department, police department, and other agencies charged with the responsibility of
protecting the public peace, safety and welfare.’”) (quoting Mitchell v. Morris, 210 P.2d 857,
859 (Cal. App. 1949)).
2

on the application, the Plan Review Committee acknowledged that it had previously approved
applications proposing equal or less frontage compared to Plaintiffs’ application. Id. ¶ 53.
Nonetheless, on December 6, 2011, the Plan Review Committee denied the application on
several grounds, including that the application lacked the required amount of frontage. Id. ¶ 2;
[ECF No. 16-1 at 4]. The Plan Review Committee did not state its reason for treating Plaintiffs’
application differently from applications approved with equal or less frontage. Compl. ¶ 53.
Plaintiffs filed a complaint in the Massachusetts Land Court seeking review of the denial
of their Special Permit application. [ECF No. 16-1 at 3]. As a preliminary matter, the Land Court
dismissed certain claims for lack of subject matter jurisdiction, including Plaintiffs’ takings
claims and equal protection claims. [ECF No. 16-1 at 3–5]. While review of the validity of the
Special Permit denial remained pending in the Land Court, Plaintiffs refiled the dismissed claims
in Massachusetts Superior Court, essentially alleging that Defendants’ delay or denial of
regulatory approvals constituted a taking and that their Special Permit application was treated
differently than similarly situated applicants in violation of their rights to equal protection. [ECF
No. 24-5 at 32-34]. Defendants then removed the Superior Court case to federal court. Compl. ¶
5; [ECF No. 24 at 7; ECF No. 24-5 at 2]. Thereafter, on or around August 13, 2013, the parties
entered into a “stand still” agreement, pursuant to which the parties voluntarily dismissed the
case in federal court without prejudice and agreed that Plaintiffs could refile their claims after a
dispositive ruling in the Land Court action became final. Compl. ¶ 5.
On October 15, 2013, on cross motions for summary judgment, the Land Court ruled that
Plaintiffs’ application lacked sufficient frontage and failed to satisfy the applicable bylaw. [ECF
No. 16-1 at 23]. The Land Court held:
[P]laintiffs’ July 22, 2011 application for a Special Permit did not depict adequate
frontage under the [Town] Zoning By-Law, and for that reason, the decision of the

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[Town] Plan Review Committee dated December 6, 2011 . . . is not arbitrary, capricious,
or contrary to law, will not be overturned or upset by the court, and will stand as issued.
[ECF No. 16-2 at 4]. Plaintiffs appealed the decision to the Massachusetts Appeals Court, but
ultimately filed a motion to voluntarily dismiss their appeal as moot, because they “ha[d] since
obtained approvals from the [Town] for a development plan on a lot owned by the [Trust], with
rights of access pursuant to a side agreement with abutters.” [ECF No. 16-4 at 5]. The Appeals
Court allowed the motion to dismiss the appeal, but declined to vacate the Land Court’s
judgment. Id. 5-6. Shortly after the Appeals Court entered its decision, Plaintiffs filed the instant
case in this Court.
II.

LEGAL STANDARD
Defendants now move to dismiss this case for lack of subject matter jurisdiction and

failure to state a claim. “Under a Rule 12(b)(1) motion to dismiss for lack of subject-matter
jurisdiction based solely on the pleadings, ‘[i]f the well-pleaded facts, evaluated in [the light
most hospitable to the plaintiffs’ theory of recovery and drawing all reasonable inferences in the
plaintiffs’ favor], do not support a finding of federal subject-matter jurisdiction,’ the court must
dismiss the action.” Adams v. Town of Montague, No. 14–30178, 2015 WL 1292402, at *1 (D.
Mass. Mar. 23, 2015) (alterations in original) (quoting Fothergill v. United States, 566 F.3d 248,
251 & n.1 (1st Cir. 2009). “Similarly, under a Rule 12(b)(6) motion to dismiss for failure to state
a claim, if a complaint, based on the well-pleaded factual allegations, fails to allege ‘content that
allows the court to draw the reasonable inference that the defendant is liable’ based a legally
viable claim, it is subject to dismissal.” Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009)). 4
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In addition to the complaint, in reviewing a motion to dismiss, “a court may consider matters of
public record and facts susceptible to judicial notice.” United States ex rel. Winkelman v. CVS
Caremark Corp., 827 F.3d 201, 208 (1st Cir. 2016). Such documents “ordinarily include
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III.

DISCUSSION
Plaintiffs assert claims for (1) a temporary regulatory taking of property without just

compensation in violation of art. 10 of the Massachusetts Declaration of Rights and the Fifth and
Fourteenth Amendments of the United States Constitution and (2) a violation of their federal and
state rights to equal protection. The takings claims are based on the denial of the Special Permit
and delay or interference concerning other regulatory approvals that temporarily prevented
Plaintiffs from using their property. The equal protection claims essentially arise out of the
denial of the Special Permit and allegations that the Defendants previously approved applications
of other property owners that posed the same or similar frontage deficiency. Defendants set forth
a number of grounds for dismissal, but under the circumstances, the Court need only address
dismissal on the grounds of ripeness.
A. Takings Claims
Defendants argue that the takings claims are unripe and subject to dismissal, because
Plaintiffs failed to first exhaust available remedies under state law for seeking just compensation,
in accordance with the requirements set forth in Williamson Cty Reg’l Planning Comm’n v.
Hamilton Bank of Johnson City, 473 U.S. 172 (1985). In response, Plaintiffs contend that
Defendants waived this requirement when they removed Plaintiffs’ prior action filed in
Massachusetts Superior Court.
“In [Williamson], the Supreme Court held that the nature of a federal regulatory takings
claim gives rise to two ripeness requirements which plaintiffs bear the burden of proving they
have met before a federal court has jurisdiction over a takings claim.” Downing/Salt Pond
‘documents from prior state court adjudications.’” Giragosian v. Ryan, 547 F.3d 59, 66 (1st Cir.
2008) (quoting Boateng v. InterAmerican Univ., Inc., 210 F.3d at 56, 60 (1st Cir. 2000)). Neither
party disputes that the Court may take judicial notice of the relevant proceedings in the
Massachusetts Land Court. [ECF No. 16 at 4 n.1; ECF No. 24 at 5 n.1].
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Partners, L.P. v. Rhode Island and Providence Plantations, 643 F.3d 16, 20 (1st Cir. 2011) (citing
Williamson, 473 U.S. at 186). 5 “First, a regulatory takings claim is not ripe until the relevant
government entity has ‘reached a final decision regarding the application of the regulations to the
property at issue.’” Id. (quoting Williamson, 473 U.S. at 186). See Garcia–Rubiera v. Calderon,
570 F.3d 443, 452 (1st Cir. 2009) (“final decision” is where “there is no pending process that
would ‘modify the statute’s impact’ on Plaintiffs”) (citation omitted). Because Defendants do not
dispute that the denial of the Special Permit, upheld on review by the Land Court and Appeals
Court, constitutes a final decision, the Court assumes for present purposes that the Complaint
satisfies the first prong of Williamson. [ECF No. 24 at 12; ECF No. 16 at 8-12]. See Perfect
Puppy, Inc. v. City of East Providence, 98 F. Supp. 3d 408, 420 (D.R.I. 2015), aff’d 807 F.3d
415 (1st Cir. 2015).
Second, “if a State provides an adequate procedure for seeking just compensation, the
property owner cannot claim a violation of the Just Compensation Clause until it has used the
procedure and been denied just compensation.” Downing, 643 F.3d at 21 (citing Williamson, 473
U.S. at 195). See Marek v. Rhode Island, 702 F.3d 650, 653 (1st Cir. 2012) (“For a takings claim
to be ripe, prior state administrative and/or judicial processes not only must have wrought a
taking of particular property but also must have established the sovereign’s refusal to provide
just compensation for the property taken.”). Satisfying the “state-exhaustion” prong of
Williamson “entails a showing that the plaintiff has run the gamut of state-court litigation in
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The Court treats Plaintiffs’ takings claims under Massachusetts law as on the same footing as
the federal takings claims. See Stillman v. Town of Braintree, No. 12–cv–12033, 2013 WL
3830180 at *4 n.5 (D. Mass. July 22, 2013) (citing Blair v. Dep’t of Conservation and
Recreation, 932 N.E.2d 267, 270-271 (Mass. 2010)) (whether reviewing a state or federal takings
claim, “Massachusetts courts require exhaustion, or an exception to the exhaustion requirement,
to be ripe.”). See also Commonwealth v. Blair, 805 N.E.2d 1011, 1016-1017 (Mass. App. Ct.
2004) (“[T]he Supreme Judicial Court, to date, has evaluated takings claims under the Federal
analysis.”).
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search of just compensation (provided, however, that the state makes available adequate
procedures for this purpose).” Marek, 702 F.3d at 653. “[A]n exception to the second ripeness
requirement may obtain if a state’s procedures for seeking just compensation are either
‘inadequate’ or ‘unavailable.’” Id. (quoting Williamson, 473 U.S. at 196–197). “[T]his exception
is narrowly construed, and the claimant must carry the heavy burden of showing unavailability or
inadequacy.” Deniz v. Municipality of Guaynabo, 285 F.3d 142, 146 (1st Cir. 2002). Here,
Plaintiffs do not dispute that the Massachusetts inverse condemnation statute, Mass. Gen. Laws
ch. 79, provides an available, adequate procedure. 6 See Gilbert v. City of Cambridge, 745 F.
Supp. 42, 52 (1st Cir. 1990) (quoting Ackerley Commc’ns of Mass., Inc. v. Somerville, 692 F.
Supp. 1, 28 (D. Mass. 1988)) (M.G.L. c. 79, § 10 provides “a specific statutory remedy for
governmental actions which amount to a taking without formal condemnation proceedings”);
Adams v. Town of Montague, No. 14–30178, 2015 WL 1292402, at *2 (D. Mass. Mar. 23, 2015)
(plaintiffs “must first exhaust their remedies in state court under M.G.L. c. 79 before bringing a
Fifth Amendment takings claim . . . in federal court”).
Plaintiffs do not allege that they have exhausted available state remedies but rather that
Defendants waived this requirement by removing their prior state case to federal court. [ECF No.
24 at 7]. Plaintiffs rely on cases holding that the state-exhaustion requirement is a prudential
limitation that may be waived where defendants stymie attempts to exhaust remedies in state
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Plaintiffs make a passing reference in a footnote that “it remains an open question whether
[M.G.L.] c. 79, § 10, would even apply to [Plaintiffs’] takings claims here, since each of the
Town actions at issue were accomplished by ‘formal vote,’” because § 10 excludes takings
“effected by or in accordance with a formal vote.” [ECF No. 24 at 14 n.10]. The First Circuit has
held with respect to § 10 that “‘a formal vote’ cuts in only when the condemnation of property is
direct, not inverse (as in eminent domain proceedings).” Gilbert v. City of Cambridge, 932 F.2d
51, 64-65 (1st Cir. 1991). Moreover, even if the Court accepts Plaintiffs’ passing reference as
argument, an “open question” amounts at most to “lack of clarity,” which fails to meet the high
burden of inadequacy. Id. at 65 (quoting Culebras Enters. Corp. v. Rivera Rios, 813 F.2d 506,
514–515 (1st Cir. 1987)).
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court through removal. See e.g., Martini v. City of Pittsfield, No. 14–30152, 2015 WL 1476768
at *4 (D. Mass. Mar. 31, 2015) (“Plaintiffs originally brought this action, including their statelaw inverse condemnation claim under M.G.L. c. 79, in state court, but Defendants’ removal
prevented them from exhausting their remedies there.”); Athanasiou v. Town of Westhampton,
30 F. Supp. 3d 84, 88-89 (D. Mass. 2014) (where defendants removed action to federal court,
“Defendants cannot shift onto Plaintiffs the blame for non-exhaustion at the state level”).
The Court acknowledges that whether the state-exhaustion requirement is a jurisdictional
or prudential limitation may be an open question. Compare Perfect Puppy, 807 F.3d at 420-421
(“[W]e confess that we are not 100% sure that the state-exhaustion requirement actually is
jurisdictional. Williamson itself never called its requirements jurisdictional. And as [the
appellant] is quick to point out, the Supreme Court recently described the state-exhaustion
requirement as a prudential principle rather than a jurisdictional limitation.”); with Marek, 702
F.3d at 650 (“It follows inexorably that the plaintiff would have had to pursue this procedure
fully in a state court before a federal court could exercise jurisdiction over his takings claim. His
failure to do so was fatal to his federal takings claim.”). The Court need not address this
distinction here, however, because even if the state-exhaustion requirement is prudential,
Plaintiffs have not alleged any “countervailing considerations” to warrant departing from “the
relevant prudential factors that counsel against hearing [the] case.” Martini, No. 14–30152, 2015
WL 1476768 at *3 (quoting United States v. Windsor, 133 S. Ct. 2675, 2687 (2013)).
Unlike in the cases relied upon, Plaintiffs did not file this case in state court only to have
it removed to federal court. Plaintiffs filed a separate prior action that was removed, but the
parties agreed to dismiss that case voluntarily without prejudice. Plaintiffs do not dispute that
they could have refiled their state and federal claims directly in state court, and do not allege that

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gamesmanship or litigation tactics on the part of Defendants thwarted them from exhausting their
remedies in state court. Because Plaintiffs do not allege that they exhausted the adequate and
available remedies under state law prior to filing this action in federal court, and present no
credible basis for departing from the ripeness requirements of Williamson, their allegations fail
to satisfy the state-exhaustion requirement. Accordingly, the Court dismisses Plaintiffs’ takings
claims without prejudice to whatever right Plaintiffs might have to pursue those claims in state
court. 7
B.

Equal Protection Claims

The Court also dismisses the equal protection claims without prejudice to whatever right
Plaintiffs might have to pursue those claims in state court. In Downing, the district court
dismissed the takings claims as unripe under Williamson and also dismissed the claims that were
“coextensive” with the takings claims. 698 F. Supp. 2d 278, 288-289 (D.R.I. 2010) (quoting
Rocky Mountain Materials & Asphalt, Inc. v. Bd. of Cty Comm’rs of El Paso Cty, 972 F.2d 309,
311 (10th Cir. 1992)). The district court considered that the plaintiff’s remaining claims,
including one for equal protection, presented the same “key issues” as the takings claims and that
“[a]lthough the formal elements of the claims may differ, each will depend, broadly, on
demonstrating the truth of the allegations . . . the gist of which is that Defendants harmed
[plaintiff] financially by interfering with the development of its property.” Id. at 289. The district

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The Court notes, without deciding, that should Plaintiffs refile their case in state court, and
Defendants remove it to federal court, the state-exhaustion requirement could be subject to
waiver. Compare Perfect Puppy, 807 F.3d at 421 (“True, a government defendant’s removal of a
case from state court may waive otherwise valid objections to litigation in a federal forum.”);
Martini, No. 14–30152, 2015 WL 1476768 at *4-5; Athanasiou, 30 F. Supp. 3d at 87-88 (D.
Mass. 2014); with Stillman v. Town of New Braintree, No. 12–12033, 2013 WL 3830180 at *4
(D. Mass. July 22, 2013) (rejecting plaintiffs’ argument that they would have pursued available
state remedies in state court if not for defendants “gamesmanship in removing their Complaint
and then moving for its dismissal”).
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court further explained that although “unique elements of proof could protect the remaining
theories of liability,” the complaint had demonstrated that the remaining claims were “‘ancillary
to th[e] main issue.” Id. at 290 (quoting Bigelow v. Mich. Dep’t of Nat. Res., 970 F.2d 154, 160
(6th Cir. 1992)). On appeal, the First Circuit did not reach whether the ancillary claims were
properly dismissed but noted that “we have previously held that a plaintiff cannot, merely by
recasting its takings claim ‘in the raiment of a due process violation,’ evade the [Williamson]
ripeness requirements.” Downing, 643 F.3d at 28 (quoting Deniz, 285 F.3d at 149). See also
Marek, No. 11–033, 2012 WL 693566 at *4 (D.R.I. Mar. 2, 2012), aff’d 702 F.3d 650 (1st Cir.
2012) (where it appeared from the complaint that “the crux of [plaintiff’s] factual allegations and
damages claims relate to the takings claim, with due process and other constitutional violations
thrown in for good measure,” the failure to exhaust state court remedies “appear[ed] fatal to his
due process claims”).
Here, the allegations at the core of the takings claims also support the equal protection
claims. Plaintiffs allege in Count II (42 U.S.C. § 1983 and Constitutional Violations) that
Defendants violated their constitutional rights through “their treatment of the [Plaintiffs]
differently than similarly situated owners and applicants without a rational basis and their
temporary taking of the Trust’s Property without just compensation.” Compl. ¶ 70. The gist of
both claims is that the denial of the Special Permit, and any other regulatory delay or
interference, “harmed [Plaintiffs] financially by interfering with the development of [their]
property.” Downing, 698 F. Supp. 2d at 289.
Moreover, the equal protection claims appear ancillary because the allegations
concerning their unique elements are less specific and more conclusory, leaving the Court to
“judge for itself whether those claims are ‘bona fide.’” Downing, 698 F. Supp. 2d at 290

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(quoting Patel v. City of Chicago, 383 F.3d 569, 573 (7th Cir. 2004)). Under a class-of-one
theory, Plaintiffs must sufficiently allege that Defendants “(1) intentionally treated them
differently; (2) from others similarly situated; and (3) without a rational basis for the disparate
treatment.” Sampson v. Town of Salisbury, 441 F. Supp. 2d 271, 279 (D. Mass. 2006). Plaintiffs
do not squarely address the rational basis that the Land Court articulated for Defendants’ denial
of the permit in light of similar proposals receiving approval, the gist of which was that prior
approvals may have been given “improvidently,” but “[t]he fact that one house got built when it
should not have, does not authorize all who later request the same opportunity to build to do so,”
because “[i]f that were not true, a municipality, having once blundered, would not again be able
to insist that its zoning law be followed.” [ECF No. 16-1 at 27–28]. The allegations that the Plan
Review Committee itself did not express a reason for treating Plaintiffs differently are
insufficient, because “[t]he question is not what went on in the mind of the state actor but
whether anyone, including the judge, can conceive of a rational reason.” Priolo v. Town of
Kingston, 839 F. Supp. 2d 454, 462 (D. Mass. 2012) (quoting Jeneski v. City of Worcester, 476
F.3d 14, 17 (1st Cir. 2007)).
The Complaint also arguably asserts an equal protection violation for “improper selective
enforcement of lawful local regulations.” Rubinovitz v. Rogato, 60 F.3d 906, 909 (1st Cir. 1995).
Under a selective enforcement theory, Plaintiffs must sufficiently allege that “compared with
others similarly situated, [they were] selectively treated . . . based on impermissible
considerations such as race, religion, intent to inhibit or punish the exercise of constitutional
rights, or malicious or bad faith intent to injure a person.” Barrington Cove Ltd. P’ship v. R. I.
Hous. and Mortg. Fin. Corp., 246 F.3d 1, 7 (1st Cir. 2001) (quoting Rubinovitz, 60 F.3d at 909–
910). In support of their claims, Plaintiffs allege malicious or bad faith intent, the standard for

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which is “very high and must be ‘scrupulously met.’” Walsh v. Town of Lakeville, 431 F. Supp.
2d 134, 145 (D. Mass. 2006) (quoting Rubinovitz, 60 F.3d at 911). Again, Plaintiffs do not
clearly allege how Defendants acted with malice or bad faith. The Complaint contains some
allegations that suggest the actions of Defendants could have been motivated by their own selfinterest in that Defendants and local land conservation organizations (in which certain
Defendants had affiliations) were acquiring land near Plaintiffs’ property and were aware that
Plaintiffs’ property would be cheaper and easier to acquire if Plaintiffs were denied a Special
Permit. Compl. ¶¶ 58-62. Nevertheless, Plaintiffs’ allegations “focus on the ways the
Defendants’ actions have stymied development of the [] land parcel,” and not on showing how
Defendants’ conduct actually manifested any malicious intent. Downing, 698 F. Supp. 2d at 290.
Accordingly, the Court finds that the equal protection claims are ancillary to the takings claims
and dismisses them without prejudice to whatever right Plaintiffs might have to pursue them in
state court.
IV.

MOTION FOR LEAVE TO FILE AMENDED COMPLAINT
Plaintiffs filed a Motion for Leave to File Amended Complaint in order to (1) add

additional allegations concerning similarly situated properties that Defendants approved for
development, (2) make explicit reference to Mass. Gen. Laws ch. 79 in asserting their takings
claims, and (3) insert minor corrections to the case caption and background allegations. Because
the amended complaint would not have any effect on the ripeness grounds on which the Court
dismisses the case, the Court denies Plaintiffs’ Motion for Leave to File Amended Complaint.
V.

CONCLUSION
Accordingly, it is hereby ordered that (1) Defendant’s Motion to Dismiss [ECF No. 15] is

GRANTED to the extent that the Complaint is dismissed without prejudice to whatever right

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Plaintiffs might have to pursue both counts in state court; (2) Plaintiffs’ Motion for Leave to File
Amended Complaint [ECF Nos. 25 & 26] is DENIED; and (3) Plaintiffs’ Motion for Hearing
[ECF No. 28] is DENIED.
SO ORDERED.
Date: September 25, 2017

/s/ Allison D. Burroughs
ALLISON D. BURROUGHS
U.S. DISTRICT JUDGE

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