Ellis et al v. Minneapolis, City of et al
Filing
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MEMORANDUM OPINION AND ORDER granting 2 Motion to Dismiss/General (Written Opinion). Signed by Judge Ann D. Montgomery on 8/15/2012. (GS) (cc: Andrew Ellis, Harriet Ellis) Modified on 8/15/2012 (jz).
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Andrew Ellis and Harriet Ellis,
Plaintiffs,
MEMORANDUM OPINION
AND ORDER
Civil No. 12-57 ADM/SER
v.
City of Minneapolis, a municipal
corporation, John and Jane Does 1-10,
Defendants.
______________________________________________________________________________
Andrew Ellis and Harriet Ellis, pro se.
Kristin R. Sarff, Esq., and Sara J. Lathrop, Esq., City Attorney’s Office, Minneapolis, MN, on
behalf of Defendants.
______________________________________________________________________________
I. INTRODUCTION
This matter is before the undersigned United States District Judge for a ruling on
Defendant City of Minneapolis and John and Jane Does’ (collectively, the “City Defendants”)
Motion to Dismiss [Docket No. 2].1 For the reasons stated below, the City Defendants’ Motion
is granted.
II. BACKGROUND2
Andrew and Harriet Ellis (the “Ellises”) owned a rental property (the “Property”) in
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No oral argument of this motion was held because Andrew Ellis communicated to the
Court that he was unable to procure counsel, that he was not confident in his ability to engage in
oral argument, and that he would not be attending the hearing scheduled for July 27, 2012. July
19, 2012 Letter [Docket No. 10]. The Court, therefore, will decide the case on the written
pleadings, as Ellis asked to “respectfully stand on [his] pro-se pleadings.” Id.
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In considering the City Defendants’ Motion to Dismiss, the Court takes the facts
alleged in the Ellises’ Complaint [Docket No. 1] to be true. See Hamm v. Groose, 15 F.3d 110,
112 (8th Cir. 1994). The Court will also consider public records and documents to which the
Complaint refers. Illig v. Union Electric Co, 652 F.3d 971, 976 (8th Cir. 2011).
Minneapolis which was severely damaged by fire on January 10, 2006. Ellis v. City of
Minneapolis (“Ellis II”), No. A07-2440, 2009 WL 113256, at *1 (Minn. Ct. App. Jan. 20, 2009)
rev. denied Mar. 31, 2009; see also Compl. at 3. The City of Minneapolis (the “City”) sought to
demolish the Property immediately after the fire, but the demolition was postponed because
Andrew Ellis stated he would provide an inspection report to assure the City that temporary
shoring was feasible. Ellis v. City of Minneapolis (“Ellis I”), No. A06-1063, 2007 WL 1815743,
at *1 (Minn. Ct. App. June 26, 2007). On January 12, 2006, the City required them to begin
“stabilization work” or face demolition of the Property. Id. By April, no rehabilitation of the
building had occurred. Id.
On April 21, the City notified the Ellises that the Property had been declared a nuisance
and that on May 17, 2006, a hearing would be held before the Public Safety and Regulatory
Services (“PSRS”) Committee to recommend that the Property be rehabilitated or demolished.
Id. The PSRS Committee held its meeting as scheduled, and after hearing from the City Director
of Inspections, the Ellises and their counsel, as well as from three neighborhood members, the
PSRS Committee approved the recommendation for demolition of the Property. Id. at *2. On
May 26, 2006, the Minneapolis City Council voted unanimously to approve the PSRS
Committee’s recommendation to demolish. Id. The Ellises then appealed the demolition to the
City and subsequently to the Minnesota Court of Appeals. Id. The Property was demolished in
June 2006. Id.
In June 2007, the Minnesota Court of Appeals affirmed in part, reversed in part, and
remanded in part because the record and findings were inadequate. Id. at *8. On remand, the
City drafted new findings and provided them to members of the PSRS Committee in advance of
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the November 28, 2007 meeting. Ellis II, 2009 WL 113256, at *1. The city attorney presiding
over the meeting recreated the record from the May 2006 hearing, identifying the evidence upon
which the PSRS Committee was basing its recommendation to demolish. Id. The Ellises did not
attend the November 28, 2007 meeting, but instead sent a letter. Id. On December 7, 2007, the
Minneapolis City Council approved the recommended demolition. Id. at *2. The Ellises
challenged the City’s finding and final order, but the Minnesota Court of Appeals found the
record a sufficient basis for the decision and affirmed the City’s actions. Id. at *4.
On January 9, 2012, the Ellises commenced this current action against City Defendants,
and on February 21, 2012, the City Defendants filed their Motion to Dismiss.
III. DISCUSSION
A. Standard of Review
Rule 12(b)(6) of the Federal Rules of Civil Procedure governs a motion to dismiss for
failure to state a claim. In considering a Rule 12(b)(6) motion, the court views the pleadings in
the light most favorable to the nonmoving party and treats the alleged facts as true. See Ossman
v. Diana Corp., 825 F. Supp. 870, 879-80 (D. Minn. 1993). Conclusions of law made by the
nonmoving party, however, are not “blindly accept[ed].” Westcott v. City of Omaha, 901 F.2d
1486, 1488 (8th Cir. 1990). A Rule 12(b)(6) motion to dismiss is granted when the factual
allegations, even assumed to be true, do not entitle that party to relief. See, e.g., Taxi
Connection v. Dakota, Minn. & E. R.R. Corp., 513 F.3d 823, 826-27 (8th Cir. 2008).
Pleadings must “contain a short and plain statement of the claim showing that the pleader
is entitled to relief.” Fed. R. Civ. P. 8(a). Rule 8(a) has been interpreted to mean that a pleading
must allege “enough facts to state a claim of relief that is plausible on its face.” Bell Atl. Corp.
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v. Twombly, 550 U.S. 544, 570 (2007). To satisfy the standard of facial plausibility, a claim
must “plead[] factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009).
This plausibility determination is “context-specific” and “requires the reviewing court to draw
on its judicial experience and common sense.” Id. at 679. However, “where the well-pleaded
facts do not permit the court to infer more than the mere possibility of misconduct, the
complaint has alleged—but not ‘shown’—‘that the pleader is entitled to relief.’” Id. (quoting
Fed. R. Civ. P. 8(a)(2)). Pro se complaints are to be “liberally construed,” Estelle v. Gamble,
429 U.S. 97, 106 (1976), and held to “less stringent standards than formal pleadings drafted by
lawyers.” Id. (quoting Haines v. Kerner, 404 U.S. 519, 520-21 (1972)). However, “such
pleadings may not be merely conclusory: the complaint must allege facts, which if true, state a
claim as a matter of law.” Martin v. Aubuchon, 623 F.2d 1282, 1286 (8th Cir. 1980).
B. Analysis
The Ellises’ Complaint alleges violations of the Federal Fair Housing Act (“FHA”),
negligence, violations of the state building code, and violations of due process. The Complaint
also seeks injunctive relief under the FHA. The City Defendants contend that the Complaint
should be dismissed with prejudice for failure to state a claim under Federal Rule of Civil
Procedure 12(b)(6), or in the alternative that the Ellises should provide a more definite statement
as required by Federal Rule of Civil Procedure 12(e).
1. The Ellises’ FHA Claims
The Ellises’ claims in Counts One, Two, and Six all specifically assert violations of the
FHA. The FHA statute of limitations requires aggrieved parties to file a civil action “not later
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than two years after the occurrence or termination of an alleged discriminatory housing practice
to obtain appropriate relief.” 42 U.S.C. § 3613(a)(1)(A). The statute of limitations does not run
during any time in which an administrative proceeding was pending with respect to an FHA
complaint or charge alleging a discriminatory housing practice. 42 U.S.C. § 3613(a)(1)(B).
Here, the FHA claims are time-barred. Whether calculated from the time of the fire in
January 2006 or from the time of the Property’s demolition in June 2006, the Ellises’ current
FHA claims are made significantly after the two-year statute of limitations provided in 42 U.S.C.
§ 3613. Although the Ellises argue in their Memorandum in Opposition [Docket No. 9] that the
FHA violations are ongoing, no specific allegations or evidence have been offered to support this
contention; rather, the only events specified in the Complaint date back to 2006. Moreover, none
of the Ellises’ claims allege FHA violations which were previously pursued in an administrative
proceeding. Therefore, because the pending administrative exception does not apply, the Ellises’
FHA claims in Counts One, Two, and Six are time-barred and are dismissed with prejudice.
a. Count One
Even if the FHA claims were not time-barred, they would also be subject to dismissal
under Rule 12(b)(6) for failure to state a claim. In Count One, the Ellises allege that the City
Defendants had ministerial duties not to cause disparate impact, that they rented to protected
class members, and that the City Defendants violated their ministerial duties thereby causing
disparate impact. Compl. ¶¶ 195–197. The Ellises also appear to allege that the City Defendants
made false statements. Compl. ¶¶ 198–201. However, under Twombly, the Ellises’ Complaint
must plead more than just a “formulaic recitation of the elements of a cause of action.” 550 U.S.
at 555. The Complaint fails to do so.
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The Ellises’ Complaint states that they rented, or attempted to rent, to members of
protected classes. Compl. ¶ 196. The FHA does make it unlawful to “refuse to sell or rent . . . .
or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion,
sex, familial status, or national origin.” 42 U.S.C. § 3604(a). The Ellises’ Complaint, however,
fails to recite any facts to support that they rented to a member of any protected class. The
Ellises also allege that the City Defendants violated a ministerial duty, see Compl. ¶¶ 195, 197,
but they fail to plead how the City Defendants violated that duty. Because the Complaint merely
recites the legal elements of an FHA cause of action, without alleging plausible facts to support
such a claim, it fails the pleading standards of Rule 12(b)(6) and warrants dismissal. See Beck v.
Lafluer, 257 F.3d 764, 766 (8th Cir. 2001) (dismissing complaint because it failed to make any
allegations of defendants’ direct involvement).
Finally, Count One also attempts to claim that the City Defendants violated the FHA by
making and certifying false statements to government agencies. See Compl. ¶¶ 198–200. The
filing of false FHA statements is actually a violation of the False Claims Act (“FCA”). See
United States v. Anchor Mortg. Corp., No. 06 C 210, 2010 WL 3184210, at *5 (N.D. Ill. Aug.
12, 2010) (“[A]n application for FHA insurance nonetheless constitutes a claim within the
meaning of the FCA.”). A person who “knowingly presents, or causes to be presented, a false or
fraudulent claim for payment or approval” or “knowingly makes, uses, or causes to be made or
used, a false record or statement material to a false or fraudulent claim” is liable for damages
under the FCA. 31 U.S.C. § 3729(a)(1). The Ellises, however, have not pleaded an FCA claim,
and this Court need not “divine the litigant’s intent and create claims that are not clearly raised.”
Bediako v. Stein Mart, Inc., 354 F.3d 835, 840 (8th Cir. 2004). Further, even if the Ellises had
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properly asserted an FCA claim, such a claim has not been pleaded with the required specificity.
Nowhere in the Ellises’ Complaint do they make a plausible factual allegation that the City
Defendants knowingly made or used a false statement. Even if the Court were to accord the
Ellises the latitude so that their FHA claim in Count One would be considered as a claim under
the FCA, the claims language is merely conclusory and has not been properly pleaded. For all
these reasons, Count One is dismissed.
b. Count Two
In addition to being time-barred, Count Two of the Complaint also fails because it lacks
the required specificity. The Ellises merely allege that the City Defendants “knew or should
have known that their conduct . . . did evidence retaliation against” them for associating with
protected class members, Compl. ¶¶ 205–08, but the cause of action fails to identify a single
factual instance of retaliation. Accordingly, Count Two is dismissed.
c. Count Six
The Ellises’ claim for injunctive relief under the FHA in Count Six also fails for several
reasons. As previously stated, it is time-barred, and as discussed more fully later, the claim for
injunctive relief is barred by the doctrine of res judicata and the Rooker-Feldman doctrine.
Moreover, the Ellises lack standing to assert a claim for injunctive relief. The Ellises claim that
the City Defendants have violated a consent decree imposed on them in Hollman v. Cisneros, but
they fail to cite the case or attach a copy of the alleged consent decree. The Ellises may be
referring to a consent decree issued in the case of Hollman v. Cuomo, 92-cv-712 (D. Minn.);
however, the Ellises are not listed as a party to that action, and therefore generally lack standing
to challenge the City Defendants’ alleged violation of that consent decree. See Blue Chip
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Stamps v. Manor Drug Stores, 421 U.S. 723, 750 (1975) (“[A] well-settled line of authority from
this Court establishes that a consent decree is not enforceable directly or in collateral
proceedings by those who are not parties to it even though they were intended to be benefited by
it.”). Third parties are only permitted to enforce a consent decree when the third party has
shown that the parties to the consent decree intended to confer a benefit upon the third party and
intended to give that third party a “legally binding and enforceable right to that benefit.” Pure
Country, Inc. v. Sigma Chi Fraternity, 312 F.3d 952, 958 (8th Cir. 2002). The Ellises have made
no such showing here, and therefore they lack standing to seek enforcement of this consent
decree. Count Six of the Ellises’ Complaint is accordingly dismissed for lack of standing.
2. The Ellises’ Negligence Claim
In Count Three, the Ellises allege that the City Defendants were negligent in their
response and conducting of the firefighting on January 10, 2006. See Compl. ¶¶ 209–214. Like
the FHA claims, the negligence claim is both untimely and without merit. The statute of
limitations for negligence actions in Minnesota is six years. Minn. Stat. § 541.05, subd. 1(5);
Christian v. Birch, 763 N.W.2d 50, 56 (Minn. Ct. App. Mar. 24, 2009). In Minnesota, an action
is not commenced until the summons is served upon the defendant. Minn. R. Civ. P. 3.01.
Where state law requires service to commence an action, state law governs the state statute of
limitations, not Federal Rule of Civil Procedure 3. See Johnson v. Carroll, 658 F.3d 819, 829
(Minn. 2011) (citing Anderson v. Unisys Corp., 47 F.3d 302, 309 (8th Cir. 1995)). Since the
statutory limitations period began running on the date of the fire, the six-year statute of
limitations elapsed on January 10, 2012. Although the Ellises filed their Complaint on January
9, 2012, they did not issue a summons until February 21, 2012. Accordingly, the negligence
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claim is time-barred and therefore warrants dismissal.
Moreover, the negligence claim fails on its merits because the City Defendants did not
owe any legal duty to the Ellises regarding in their firefighting strategy. The elements of
negligence are: (1) duty, (2) breach, (3) causation, (4) damages. Schweich v. Ziegler, Inc., 463
N.W.2d 722, 729 (Minn. 1990). In Minnesota for more than a century, firefighting has been
viewed as a general duty rather than a special duty owed to individuals. Dahlheimer v. City of
Dayton, 441 N.W.2d 534, 537 (Minn. Ct. App. 1989). The Dahlheimer court determined that a
city cannot be liable for the general allegations of negligent firefighting or for tactical
firefighting decisions. Id. at 536, 539. In a more recent case, the Minnesota Court of Appeals
held that a plaintiff cannot sue a city for negligent firefighting because no individual duty existed
between the city and the plaintiffs. Woehrle v. City of Mankato, 647 N.W.2d 549, 552–53
(Minn. Ct. App. 2002). Here, the Ellises claim the City Defendants acted negligently in
extinguishing the fire on the Property, but this claim fails because the City Defendants owed no
individual duty to the Ellises. Therefore, the negligence claim fails on its merits and is dismissed
for this reason as well.
3. The Ellises’ Building Code and Due Process Claims
Count Four of the Ellises’ Complaint alleges that the City Defendants violated state
building codes by finding the Property a nuisance, refusing to allow the Ellises to repair and
rehabilitate the Property, and ultimately demolishing it. Compl. ¶¶ 215–223. The Ellises also
allege in Count Five that the City Defendants violated their due process rights by failing to
provide them fair notice and an opportunity to be heard. Compl. ¶¶ 224–229. These claims
warrant dismissal because they are barred by res judicata and the Rooker-Feldman doctrine.
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a. Res judicata
Minnesota law of res judicata analysis is that the law of the forum which rendered the
first judgment controls. Res judicata is an absolute bar to a later claim when: (1) an earlier claim
involved the same set of factual circumstances; (2) the earlier claim involved the same parties or
their privies; (3) there was a final judgment on the merits; and (4) the estopped party had a full
and fair opportunity to litigate the matter. State v. Joseph, 636 N.W.2d 322, 327 (Minn. 2001).
Res judicata is an absolute bar in these circumstances, whether the claims were actually litigated
or merely could have been litigated in the earlier action. Id.
The Ellises are barred by res judicata from now pursuing their state law claims of
building code violations. First, the Ellises’ previous appeals to the Minnesota Court of Appeals
involved the same set of factual circumstances (i.e. the fire and the subsequent demolition of
their house). Second, the previous appeals involved the same parties or privies — the City of
Minneapolis was a Defendant in the previous actions, and although Andrew Ellis was the only
named plaintiff in the previous actions, Harriet Ellis is in privy with Andrew as a co-owner and a
co-landlord. Compl. ¶ 4. Privity involves a person so identified in interest with another that he
represents the same legal right. Joseph, 636 N.W.2d at 327 n.2. Here, Harriet Ellis is in privity
with Andrew Ellis.
Third, the Court of Appeals made a final judgment on the merits, ruling that the
demolition was proper. Ellis II, 2009 WL 113256, at *4. The Minnesota Supreme Court denied
Andrew Ellis’s petition for review, thereby making the judgment final. Fourth, the Ellises had a
full and fair opportunity to litigate this matter. The Ellises contested the demolition decision
during two city council proceedings and two appeals to the Minnesota Court of Appeals. Ellis II,
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2009 WL 113256, at *1. In their first appeal, the Ellises, through counsel, challenged the City’s
decision to demolish the Property. Ellis I, 2007 WL 1815743, at *1. In their second appeal, the
Ellises argued that the City failed to specify which factors persuaded them to demolish the
building instead of allowing reconstruction. Ellis II, 2009 WL 113256, at *4. Throughout these
lengthy proceedings, the Ellises have had full and fair opportunity to litigate this exact issue of
the appropriateness of demolition, an issue which the Minnesota Court of Appeals in 2009
definitively ruled was appropriate. Ellis II, 2009 WL 113256, at *4. Therefore, Counts Four and
Five of the Complaint are barred by res judicata.
b. Rooker-Feldman Doctrine
Counts Four and Five also warrant dismissal under the Rooker-Feldman doctrine. The
Rooker-Feldman doctrine stands for the concept that federal courts lack subject matter
jurisdiction over certain challenges to state court judgments. Rooker v. Fidelity Trust Co., 263
U.S. 413 (1923); District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983).
Federal courts also lack jurisdiction over federal claims “inextricably intertwined” with claims
already adjudicated in state court. Fielder v. Credit Acceptance Corp., 188 F.3d 1031, 1034 (8th
Cir. 1999). A claim is “inextricably intertwined” with a state court judgment when it would
succeed only if the state court wrongly decided the issues or if the requested relief would
effectively reverse or void a state court decision. Id. at 1034–35. The Ellises’ claims in the
present action are inextricably intertwined with the claims already decided by the Minnesota
Court of Appeals in Ellis II. The Ellises could only prevail on their present challenges to the
City Defendants’ demolition determination if this Court were to find the Minnesota state courts
wrong, and the Ellises could only receive relief if this Court were to reverse the Minnesota state
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decision in Ellis II. Therefore, the Ellises’ current claims in Counts Four and Five are barred by
the Rooker-Feldman doctrine and are dismissed with prejudice.
IV. CONCLUSION
Based upon the foregoing, and all the files, records, and proceedings herein, IT IS
HEREBY ORDERED that:
1.
Defendants’ Motion to Dismiss [Docket No. 2] is GRANTED; and
2.
Plaintiff’s Complaint [Docket No. 1] is DISMISSED with prejudice.
LET JUDGMENT BE ENTERED ACCORDINGLY.
BY THE COURT:
s/Ann D. Montgomery
ANN D. MONTGOMERY
U.S. DISTRICT JUDGE
Dated: August 15, 2012
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