Sample v. City of Woodbury et al

Filing 65

MEMORANDUM OPINION AND ORDER granting in part and denying in part 56 Motion to Dismiss. (Written Opinion) Signed by Judge Susan Richard Nelson on 05/12/2017. (SMD)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

David J. Sample,

Civil No. 15-cv-602 (SRN/BRT)

Plaintiff,
v.

MEMORANDUM OPINION
AND ORDER

City of Woodbury, a Minnesota municipal
corporation, Eckberg, Lammers, Briggs,
Wolff & Vierling, PLLP, Mark J. Vierling,
Sean P. Stokes, Rebecca Christensen and
Joseph Van Thomme,
Defendants.

Kevin K. Shoeberg, Kevin K. Shoeberg, P.A., 1805 Woodlane Drive, Woodbury,
Minnesota 55125, for Plaintiff.
Leonard J. Schweich and Vicki A. Hruby, Jardine, Logan & O’Brien, P.L.L.P., 8519
Eagle Point Boulevard, Suite 100, Lake Elmo, Minnesota 55042, for Defendant City of
Woodbury.
Paul C. Peterson and Ryan P. Myers, Lind, Jensen, Sullivan & Peterson, PA, 901
Marquette Avenue South, Ste. 1300, Minneapolis, Minnesota 55402, for Defendants
Eckberg, Lammers, Briggs, Wolff & Vierling, PLLP, Mark J. Vierling, Sean P. Stokes,
Rebecca Christensen, and Joseph Van Thomme.

SUSAN RICHARD NELSON, United States District Judge
This matter is before the Court on Defendant City of Woodbury’s Renewed
Motion to Dismiss (“Renewed Mot. to Dismiss”) [Doc. No. 56]. For the reasons set forth
below, that Motion is granted in part and denied in part.

I.

BACKGROUND
A. Facts
This lawsuit arises out of the prosecution of Plaintiff David J. Sample (“Sample”) by

Defendant Eckberg, Lammers, Briggs, Wolff & Vierling, PLLP (the “Firm”), the law
firm retained to prosecute certain criminal matters on behalf of Defendant City of
Woodbury (the “City”).

(See Second Am. Compl. at ¶¶ 3, 5, 17 [Doc. No. 7].)

Defendants Mark Vierling (“Vierling”), Rebecca Christensen (“Christensen”), Sean
Stokes (“Stokes”), and Joseph Van Thomme (“Thomme”) (collectively, the “Attorneys”)
were all lawyers at the Firm during the time in question. (Id. at ¶ 4.) The contract
between the City and the Firm contained the following relevant clause:
Conflicts of Interest: The Law Firm will notify the City if the Law Firm
represents or has ever represented an opposing party in a legal matter,
whether within or outside of any of the retainers.
(Aff. of Jamie L. Jonassen [Doc. No. 19], Ex. 1 (“City-Firm Contract”) at 2 [Doc. No. 191].) 1
According to Sample, the Woodbury Police Department responded to a 911 call at
Sample’s Woodbury residence on August 29, 2013, regarding an incident in which Julie
Dale (“Dale”) was the alleged victim. (Sec. Am. Compl. at ¶¶ 6, 8.) Sample contends
that the police impermissibly (i.e., without a warrant or permission) searched a saddlebag
on a motorcycle in his garage and seized a handgun. (Id. at ¶ 8.) He also claims that the
following day, police reports regarding the incident were forwarded to the Washington
1

The City-Firm Contract is properly considered on the City’s Renewed Motion to
Dismiss because it is embraced by the Second Amended Complaint and is a public
record. See Porous Media Corp. v. Pall Corp., 186 F.3d 1077, 1079 (8th Cir. 1999).
2

County Attorney’s Office, but that Washington County declined to prosecute. (Id. at ¶
10.)
According to Sample, on September 13, 2013, Vierling filed a certificate of
representation in Hennepin County District Court, indicating that he represented Dale in a
civil matter. (Id. at ¶ 13.) At some point that month, Dale filed a petition for an order for
protection against Sample. (Id. at ¶ 16.) Meanwhile, Sample alleges, Vierling obtained
copies of the police reports regarding the August 29 incident, despite knowing that he and
his firm had a conflict of interest due to their representation of Dale in the civil matter.
(Id. at ¶ 12.) On September 26, 2013, Christensen filed a criminal complaint on behalf of
the City against Sample. (Id. at ¶ 17.) Less than two months later, however, the Firm
requested that another law firm prosecute the case due to the conflict of interest. (Id. at ¶
18.)

Sample subsequently brought a motion to dismiss the criminal charges in

Washington County District Court, alleging prosecutorial misconduct and a violation of
his constitutional rights, which was granted on August 29, 2014. (Id. at ¶¶ 22, 24 & Ex.
A.) The state court held that the Firm violated Sample’s constitutional right to due
process by failing to refer Sample’s prosecution to another law firm considering its
conflict of interest (i.e., the fact that the Firm was representing Dale at the same time it
was prosecuting Sample). (Id., Ex. A at 11–19 2.)
Sample alleges that two additional incidents involving him and Dale occurred in
2014. First, Sample contends that Dale assaulted him in January 2014. (Id. at ¶ 27.)
According to Sample, the Firm acted as the prosecutor in that matter and provided
2

The Court cites to the page numbers at they appear in Exhibit A.
3

Sample with a victim notice, but Sample’s attorney notified the Firm of the conflict of
interest at the pre-trial conference in June 2014. (Id. at ¶¶ 27–28.) The Firm apparently
then dismissed the assault charge against Dale. (Id. at ¶ 29.) Second, Sample alleges
that, in May 2014, the Firm brought two new criminal citations against him. (Id. at ¶ 30.)
Sample’s attorney advised the Firm of the conflict of interest at Sample’s first appearance
and the Firm subsequently sent the file to a different firm in September 2014. (Id. at ¶¶
31–32.) There is no allegation that the City was ever aware of any of the conflicts of
interest described above until this lawsuit was filed.
B. Procedural Posture
Sample filed this lawsuit in February 2015 and amended the complaint twice. (See
Compl. [Doc. No. 1]; Am. Compl. [Doc. No. 5]; Second Am. Compl.) The Second
Amended Complaint is now the operative complaint and it asserts four causes of action
against Defendants. Counts I and II contain state law claims for abuse of legal process
and malicious prosecution, respectively. (See id. at ¶¶ 33–44.) In Count III, Sample
asserts a claim under 42 U.S.C. § 1983. (See id. at ¶¶ 45–52.) In particular, Sample
alleges that Defendants violated his constitutional rights by “bringing criminal charges
against him” because the Firm disregarded the conflict of interest and because
Defendants “had no policy in place that would have required [the Firm] to conflict the
case out or that did not allow the City Attorney to also represent other people or
businesses when the action was adverse to one of their own residents.” (See id. at ¶¶ 46–
49.) Finally, Count IV alleges a claim for negligence based on the theory that Defendants
violated their “duty to the Plaintiff to ensure that proper conflict procedures were in place,”
4

their “duty to properly train[] the Woodbury Police Department on the Plaintiff’s rights to
bear arms and be free of unreasonable searches and seizures,” and their duty to “properly
train [their] officers and employees and contractors.” (Id. at ¶¶ 54–56.)
Previously, Defendants moved to dismiss the complaint and this Court granted that
motion. (See Order dated 9/3/2015 [Doc. No. 41].) In relevant part, the Court dismissed
all of Sample’s claims against the City, the Firm, and the Attorneys, with prejudice, based
on a finding that Defendants were entitled to absolute prosecutorial immunity. (See id.)
Sample appealed this decision and the United States Court of Appeals for the Eighth
Circuit affirmed in part, reversed in part, and remanded. Sample v. City of Woodbury,
836 F.3d 913 (8th Cir. 2016). The Eighth Circuit affirmed this Court’s dismissal of
Sample’s claims against the Firm and the Attorneys based on absolute prosecutorial
immunity. See id. at 916–17. However, it also held that this same immunity did not bar
Sample’s claims against the City and reversed this Court’s decision on that basis. 3 See id.
at 917–18.
The City now moves that Sample’s remaining claims be dismissed with prejudice,
and for an award of the City’s reasonable costs. 4 (See Renewed Mot. to Dismiss; City’s

3

The Eighth Circuit noted that Sample had not challenged the dismissal of his negligent
failure to train claims contained in Count IV. Sample, 836 F.3d at 915 n.2. At the
hearing on the Renewed Motion to Dismiss, Sample conceded that he had not appealed
the dismissal of that claim against the City. Thus, Sample’s negligent failure to train
claim against the City is dismissed with prejudice based on statutory discretionary
immunity. (See Order dated 9/3/2015 at 14–15.)

4

Although the City’s Renewed Motion seeks “reasonable costs,” the City offers no
argument regarding why it is entitled to fees and costs, or on what basis there would be
such an award. Thus, to the extent the City’s Renewed Motion contains a request for
5

Mem. in Supp. [Doc. No. 57]; City’s Reply [Doc. No. 62].) Sample opposes the City’s
Renewed Motion. (See Pl.’s Mem. in Opp. [Doc. No. 61].)
II.

DISCUSSION
A. Legal Standard
When evaluating a motion to dismiss under Rule 12(b)(6) of the Federal Rules of

Civil Procedure, for failure to state a claim upon which relief can be granted, the Court
assumes the facts in the complaint to be true and construes all reasonable inferences from
those facts in the light most favorable to the plaintiff. Morton v. Becker, 793 F.2d 185, 187
(8th Cir. 1986). However, the Court need not accept as true wholly conclusory allegations,
see Hanten v. Sch. Dist. of Riverview Gardens, 183 F.3d 799, 805 (8th Cir. 1999), or legal
conclusions the plaintiff draws from the facts pled, Westcott v. City of Omaha, 901 F.2d
1486, 1488 (8th Cir. 1990). In addition, the Court ordinarily does not consider matters
outside the pleadings on a motion to dismiss. See Fed. R. Civ. P. 12(d). The Court may,
however, consider exhibits attached to the complaint and documents that are necessarily
embraced by the pleadings, Mattes v. ABC Plastics, Inc., 323 F.3d 695, 697 n.4 (8th Cir.
2003), and may also consider public records, Levy v. Ohl, 477 F.3d 988, 991 (8th Cir. 2007).
Under Rule 8(a)(2) of the Federal Rules of Civil Procedure, a complaint “must
contain . . . a short and plain statement of the claim showing that the pleader is entitled to
relief.” The U.S. Supreme Court, in Ashcroft v. Iqbal, 556 U.S. 662 (2009), and Bell
Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), clarified that this Rule does not require
that a complaint contain “detailed factual allegations,” but it does require that it contain facts
attorneys’ fees, that request is denied.
6

with enough specificity “to raise a right to relief above the speculative level.” Twombly,
550 U.S. at 555. In other words, this standard “calls for enough fact[s] to raise a reasonable
expectation that discovery will reveal evidence of [the claim].” Id. at 556. “Threadbare
recitals of the elements of a cause of action, supported by mere conclusory statements, do
not suffice.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555). Thus, to survive a
motion to dismiss, a complaint must contain “enough facts to state a claim to relief that is
plausible on its face.” Twombly, 550 U.S. at 570.
B. Sample’s Remaining Claims
As described above, Sample’s § 1983 claim, along with his state law claims for
abuse of process, malicious prosecution, and negligence related to the City’s lack of a
conflicts policy (but not the City’s failure to train) remain. However, in opposing the
City’s Renewed Motion to Dismiss, Sample contends that his § 1983 claim is more
expansive than the City—or this Court—initially understood. (See Pl.’s Mem. in Opp. at
8–19.) Sample now argues that he alleged substantive violations of his Second, Fourth,
Fifth, and Fourteenth Amendment rights related to the warrantless search and seizure of
his motorcycle and gun in addition to the alleged violations of his constitutional rights
that resulted from the City’s failure to have a conflicts policy. 5 (See id. at 14–19.)
Notably, the alleged illegal search and seizure and associated constitutional violations are
mentioned in only two paragraphs of the Second Amended Complaint and not at all in
Count III, which contains Sample’s § 1983 claim. (Second Am. Compl. at ¶¶ 8, 25.)
5

Sample did not advance this argument to the Court on Defendants’ prior motion to
dismiss, nor to the Eighth Circuit on appeal. See Sample, 836 F.3d at 915 (describing
Sample’s § 1983 claim and making no mention of alleged search and seizure violations).
7

Moreover, Sample has not named any of the officers involved in this search and seizure
as defendants.
C. The Section 1983 Claims
The Court addresses Sample’s § 1983 claims in two parts. First, the Court finds
that Sample has not properly plead any claim related to the alleged illegal search and
seizure. Second, the Court holds that Sample’s claim related to the City’s lack of an
adequate conflicts policy fails as a matter of law.
1. Search and Seizure Claim
Municipalities may not be held liable under § 1983 for injuries caused by their
agents or employees on a theory of vicarious liability like respondeat superior. Atkinson
v. City of Mountain View, Mo., 709 F.3d 1201, 1214 (8th Cir. 2013); Parrish v. Ball, 594
F.3d 993, 997 (8th Cir. 2010); Brockinton v. City of Sherwood, Ark., 503 F.3d 667, 674
(8th Cir. 2007). Instead, to reach a municipality, a plaintiff must bring a § 1983 claim
against a specific agent or employee in his/her official capacity. Parrish, 594 F.3d at 997
(“As we have noted, a suit against a public official in his official capacity is actually a
suit against the entity for which the official is an agent.” (alterations and quotation marks
omitted)). In addition, “Section 1983 liability for a constitutional violation may attach to
a municipality if the violation resulted from (1) an official municipal policy; (2) an
unofficial custom; or (3) a deliberately indifferent failure to train or supervise[.]”
Atkinson, 709 F.3d at 1214 (quotation marks and citations omitted) (unconstitutional
policy, custom, or failure to train claims against a municipality are often called “Monell
claims” after Monell v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 658 (1978)).
8

However, “[the Eighth Circuit] has consistently recognized a general rule that, in order
for municipal liability to attach, individual liability first must be found on an underlying
substantive claim.” McCoy v. City of Monticello, 411 F.3d 920, 922 (8th Cir. 2005); see
Brockinton, 503 F.3d at 674.
Sample has not named any of the police officers involved in the alleged illegal
search and seizure as defendants. To the extent Sample alleges that his constitutional
rights were violated by this specific search and seizure, he must bring that claim against
the officer(s) involved. See Parrish, 594 F.3d at 997. Sample’s failure to plead a
substantive claim against the officer(s) also precludes him from asserting any Monell
claim for failure to train against the City. 6 See McCoy, 411 F.3d at 922.
2. Inadequate Conflicts Policy Claim
Sample’s § 1983 claim premised on the City’s alleged lack of an adequate
conflicts policy fails for at least three reasons. First, as just described, for the City to be
held liable on this Monell claim, there must be individual liability on an underlying
substantive claim. McCoy, 411 F.3d at 922; Brockinton, 503 F.3d at 674. Here, the
relevant individuals are the Firm and the Attorneys since Sample has not sued any City
official. However, this Court and the Eighth Circuit have already determined that neither
the Firm nor the Attorneys are individually liable on any of Sample’s claims. Sample,
836 F.3d at 916–17. Thus, Sample’s Monell claim related to the lack of a conflicts policy
6

Besides these fatal legal flaws, Sample’s pleadings are inadequate, consisting of legal
conclusions and almost no factual allegations about the search and seizure itself.
Twombly, 550 U.S. at 570 (a complaint must contain “enough facts to state a claim to relief
that is plausible on its face”). Moreover, any failure to train claim related to the search and
seizure would fail for the reasons described below. See infra Part II.C.2.
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must be dismissed. See McCoy, 411 F.3d at 922 (dismissing the plaintiff’s Monell claims
against a municipality where there was no individual § 1983 liability against the officers).
Second, as previously discussed, municipal liability on a Monell claim cannot be
premised on a theory of vicarious liability like respondeat superior. Atkinson, 709 F.3d at
1214; Parrish, 594 F.3d at 997; Brockinton, 503 F.3d at 674. Thus, Sample cannot rely
on the acts of the Firm or the Attorneys to establish that the City’s alleged lack of an
adequate conflicts policy caused the violation of his constitutional rights. Nonetheless,
the vast majority of Sample’s allegations focus on how the acts of the Firm and the
Attorneys violated his constitutional rights. (See Second Am. Compl. at ¶¶ 7, 11–13, 16–
18, 23, 27–32, 46–48.)
Third, Sample’s Monell claim is legally insufficient.
The failure to have a policy does not give rise to municipal liability unless
such failure reflects a deliberate indifference to the citizenry’s
constitutional rights. In most cases, a plaintiff can show deliberate
indifference only by proving the existence of a history or pattern of
constitutional violations such that the need for additional training or more
detailed policies was obvious. But an isolated incident of a constitutional
violation may trigger municipal liability if the violation is accompanied by
a showing that the municipality had failed to train its employees to handle
recurring situations presenting an obvious potential for such a violation.
Der v. Connolly, 825 F. Supp. 2d 991, 1000 (D. Minn. 2010) (citations and quotation
marks omitted). “[A] municipality may not be held liable under § 1983 merely because it
failed to implement a policy that would have prevented an unconstitutional act by an
employee otherwise left to his own discretion.”
Municipalities

are

not

required

to

have

Atkinson, 709 F.3d at 1216.

policies

regarding—or

train

their

employees/agents on—things that are obvious. See Parrish, 594 F.3d at 998–99 (holding
10

that a county was not required to provide training to its sheriff’s deputies that they could
not sexually assault women who were in custody). The lack of the relevant policy must
be the “moving force” behind the plaintiff’s injuries (i.e., it must cause the plaintiff’s
injury). Id. at 1000. This is a rigorous causation standard. Id.
Sample contends that the City “had no policy in place that would have required the
[Firm] to conflict the case out . . . .” (Second Am. Compl. at ¶ 49.) But the City needed
no such policy considering that the Attorneys were under ethical obligations not to pursue
any case that created a conflict of interest. See Minn. R. Prof. Conduct 1.7–1.10; Parrish,
594 F.3d at 998–99. Moreover, the City was not deliberately indifferent when it relied on
the Attorneys’ ethical training and obligations to assume that they would properly handle
conflicts of interest (by referring them to another law firm), regardless of any City policy.
See Der, 825 F. Supp. 2d at 1000–01 (holding that a county’s reliance on the training of
its officers was not deliberate indifference).
Furthermore, it is impossible to conclude that the City’s lack of a conflicts policy
was the “moving force” behind Sample’s injuries.

See Parrish, 594 F.3d at 1000

(deciding that the causal link between the county’s alleged failure to train and the
plaintiff’s injuries was so tenuous that it failed as a matter of law); see also Szabla v. City
of Brooklyn Park, Minnesota, 486 F.3d 385, 395 (8th Cir. 2007) (rejecting plaintiff’s §
1983 Monell claim premised on the municipal defendant’s lack of a policy regarding the
use of canine units in part because such a claim “conflicts with the rule that a claim for
municipal liability premised on actions taken pursuant to an official municipal policy
must demonstrate that the policy itself is unconstitutional”). The Firm and the Attorneys
11

exercised considerable discretion when deciding to prosecute Sample despite their
conflict of interest. Put another way, there is no reason to believe that a City policy
prohibiting a prosecution under those circumstances would have deterred them and
prevented Sample’s injuries. However, even assuming that such a policy might have
prevented Sample’s injuries, the lack of that policy it is not enough to sustain a Monell
claim against the City. See Atkinson, 709 F.3d at 1216.
The deficiencies just described are legal in nature and cannot be remedied through
amendment. Thus, even if Sample requested leave to amend, the Court would deny such
a motion based on futility. 7 See Cornelia I. Crowell GST Trust v. Possis Med., Inc., 519
F.3d 778, 782 (8th Cir. 2008) (a proposed amended complaint is properly denied as futile
where it could not withstand a Rule 12(b)(6) motion to dismiss).

For this reason,

Sample’s § 1983 Monell claim against the City is dismissed with prejudice.
D. Sample’s State Law Claims
As previously described, Sample asserts several state law claims against the City.
See supra Part I.B. However, the Court’s subject matter jurisdiction is based on the
federal question presented by Sample’s § 1983 claim. Because Sample’s § 1983 claim
fails as a matter of law, the question is whether this Court should exercise supplemental
jurisdiction over the remaining state law claims.

7

Sample has not formally moved to amend his complaint, see Fed. R. Civ. P. 15(a)(2),
but did request that “[i]f the Court deems it necessary, . . . that he be allowed to amend
the pleadings to more consistently and succinctly plead any claims against the [City].”
(Pl.’s Mem. in Opp. at 13–14.)
12

Federal district courts “have supplemental jurisdiction over all other claims that
are so related to claims in the action within [the court’s] original jurisdiction that they
form part of the same case or controversy . . . .” 28 U.S.C. § 1367(a). Important here, a
court may decline to exercise supplemental jurisdiction where it “has dismissed all claims
over which it has original jurisdiction.” 28 U.S.C. § 1367(c)(3). “A district court’s
decision whether to exercise that jurisdiction after dismissing every claim over which it
had original jurisdiction is purely discretionary.” Carlsbad Tech., Inc. v. HIF Bio, Inc.,
556 U.S. 635, 639 (2009).
The factors a court should consider in determining whether to exercise
jurisdiction over pendent state law claims are judicial economy,
convenience, fairness, and comity. In the usual case in which all federallaw claims are eliminated before trial, the balance of factors to be
considered under the pendent jurisdiction doctrine will point toward
declining to exercise jurisdiction over the remaining state-law claims.
Wilson v. Miller, 821 F.3d 963, 970–71 (8th Cir. 2016) (alterations, citations, and
quotations omitted); see United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966)
(“Certainly, if the federal claims are dismissed before trial, even though not insubstantial
in a jurisdictional sense, the state claims should be dismissed as well.”).
As it does in many cases with a similar procedural posture, the balance of the
factors just described weigh in favor of dismissing Sample’s remaining state law claims
without prejudice. See Wilson, 821 F.3d at 970–71. These claims deal solely with
matters of state law that would be best addressed in state court. Moreover, since no
discovery has been conducted and both parties are located in Minnesota, convenience,

13

fairness, and judicial economy are also served—or at least not negatively impacted—by
this Court declining to exercise supplemental jurisdiction.
III.

ORDER
Based on the foregoing, and all the files, records, and proceedings herein, IT IS

HEREBY ORDERED THAT:
1. Defendant City of Woodbury’s Renewed Motion to Dismiss (“Renewed Mot.
to Dismiss”) [Doc. No. 56] is GRANTED IN PART AND DENIED IN
PART as follows:
a. Plaintiff’s 42 U.S.C. § 1983 Monell claim against the City is
DISMISSED WITH PREJUDICE;
b. Plaintiff’s state law claims against the City are DISMISSED
WITHOUT PREJUDICE with the exception of his negligent failure to
train claim, which is DISMISSED WITH PREJUDICE;
c. To the extent that the Renewed Motion to Dismiss contains a request for
attorneys’ fees, that request is DENIED.
2. This Order, in conjunction with the Court’s previous order dated September 3,
2015 [Doc. No. 41] and the Eighth Circuit’s decision dated September 6, 2016
[Doc. No. 48], disposes of all of Plaintiff’s claims against Defendants.
LET JUDGMENT BE ENTERED ACCORDINGLY.

Dated: May 12, 2017

s/ Susan Richard Nelson
SUSAN RICHARD NELSON
United States District Judge

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