Hamidi v. City of Kirksville, Missouri et al

Filing 50

MEMORANDUM AND ORDER. This matter comes before the Court on Plaintiff's Motion for Leave to File Plaintiff's Second Amended Complaint [ECF No. 38 ], and Motion for Leave to Add Additional Parties [ECF No. 39 ]. (See Full Order.) The Cou rt will allow Plaintiff's request to file a Second Amended Complaint and to add parties, except as it applies to Troy Paino. IT IS HEREBY ORDERED that Plaintiff's Motion for Leave to File Plaintiffs Second Amended Complaint [ECF No. 38 ], and Motion for Leave to Add Additional Parties [ECF No. 39 ] are GRANTED, in part, and DENIED, in part. The parties shall file an amended case management order within thirty days of this order accommodating the amendment and addition of parties, should any dates need to be extended. Signed by District Judge E. Richard Webber on 10/21/2015. (CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
NORTHERN DIVISION

AMIR HAMIDI,
Plaintiffs,
vs.
CITY OF KIRKSVILLE, et al.,
Defendants.

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Case No. 2:14CV00087 ERW

MEMORANDUM AND ORDER
This matter comes before the Court on Plaintiff’s Motion for Leave to File Plaintiff’s
Second Amended Complaint [ECF No. 38], and Motion for Leave to Add Additional Parties
[ECF No. 39].
I.

BACKGROUND
Plaintiff Amir Hamidi (“Plaintiff”) initiated this lawsuit by filing a complaint on

September 2, 2014 [ECF No. 1]. On February 27, 2015, Plaintiff filed an Amended Complaint
[ECF No. 16]. On March 16, 2015, Defendants City of Kirksville, Missouri (“Defendant
Kirksville”) and Brad Selby (“Defendant Selby”) filed a Motion to Dismiss [ECF No. 20] for
failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil
Procedure (“FRCP”) 12(b)(6) seeking to dismiss Counts II, III, and IV of Plaintiff’s Amended
Complaint. The Court dismissed Counts II and III against Defendants on April 28, 2015. The
following are the allegations included in Plaintiff’s First Amended Complaint.
Plaintiff, a resident of Kirksville, is an Iranian-American and practicing Muslim of
Persian ancestry [ECF No. 16]. Plaintiff owns a used goods resale shop in Kirksville. In 2010,
Plaintiff purchased a house and lot, initially renting it but with the plan of eventually converting

the house into a retail store and moving his business from its current location. The property
would need to be rezoned under Plaintiff’s plan.
Defendant Brad Selby is the Planning and Coding Director of Kirksville. According to
the Complaint, in 2010, Defendant Selby began accusing Plaintiff of code violations, many of
which were not in the Kirksville Municipal Code. Defendant Selby prevented Plaintiff from
holding yard sales on his property, even though there was no ordinance or municipal code policy
prohibiting such sales. Plaintiff complained to City Manager Marie Macomber about Defendant
Selby’s actions. A public vote was held via public utility water bills, as to whether or not yard
sales should be permitted in Kirksville. The public voted against such a prohibition. Subsequent
to the vote, City Manager Macomber advised Plaintiff he could only hold yard sales twice a
month on his property.
Sometime in 2011 or 2012, Defendant Selby sent Plaintiff a letter demanding Plaintiff
remove snow from his sidewalk or face sanctions. None of Plaintiff’s neighbors received similar
letters. When Plaintiff confronted Defendant Selby, he admitted he had not inspected Plaintiff’s
property before sending the letter. During this time period, Defendant Selby forbid Plaintiff’s
tenants from holding yard sales.
In March 2013, Plaintiff filed an application to rezone his property with Defendant Selby.
On March 11, 2013, Plaintiff received a letter from Defendant Selby after Defendant Selby
inspected the property and discovered construction materials on Plaintiff’s property. The letter
requested the “rubbish” on Plaintiff’s property be removed or sanctions would be imposed. On
April 10, 2013, the Kirksville Planning and Zoning Commission (“Commission”) held an official
hearing at Kirksville City Hall to decide if they would recommend the rezoning of Plaintiff’s
property from “residential” to “low density corridor zone” to the City Council. At the hearing,

the Commission recognized Plaintiff’s property had enough “points” to qualify for a
recommendation of rezoning. 1 To qualify for rezoning to a “low density corridor zone,” as
Plaintiff requested, a lot needs 250 points. The Commission found Plaintiff’s lot had 275 points.
The Commission approved a motion to rezone Plaintiff’s property subject to the following
stipulations: 1) any and all sale materials be kept inside buildings, 2) any sign for the business
be attached to the building, 3) entrance and parking meet city requirements, 4) if lighting is used,
only low wattage lighting is permitted, and 5) if requested by neighbors, a six-foot privacy fence
be built. According to Plaintiff, the Kirksville Municipal Code specifically lists privileges and
limitations of low density corridor zone property, as to signage, and the Commission’s
stipulations are contrary to the Municipal Code requirements. Defendant Selby approached
Plaintiff and required him to sign-off on the stipulations or the Commission would not
recommend rezoning.
In Plaintiff’s Second Amended Complaint, Plaintiff seeks to add Mari Macomber,
Kirksville City Manager, Bob Russel, City Council Representative, Mike Labeth, Chairman of
the City of Kirksville Planning and Zoning Commission, David Jacobs, Member of the City of
Kirksville Planning and Zoning Commission, Clark Wilson, Member of the City of Kirksville
Planning and Zoning Commission, and Troy Paino, President of Truman State University as
defendants. The Second Amended Complaint asserts five counts against all Defendants: (1)
Equal Protection under the Fourteenth Amendment; (2) Conspiracy to Interfere with Civil Rights
under the Fourteenth Amendment and 42 U.S.C. § 1985(3); (3) Failure to Prevent a Conspiracy
to Interfere with Civil Rights under 42 U.S.C. § 1986; (4) Unlawful Discriminatory Practice,

1

The Kirksville Planning and Zoning Commission uses a point value system to determine whether to recommend a
property be rezoned. A property must meet the minimum number of points for the Commission to recommend
rezoning to the City Council. The point values correspond to various property attributes such as the size of the lot,
location, etc.

Retaliation pursuant to Missouri Revised Statute § 213.070; and (5) Denial of Equal Rights
Under the Law pursuant to 42 U.S.C. § 1981.
II.

STANDARD
Federal Rule of Civil Procedure 15(a) governs amendment of pleadings. Sherman v.

Winco Fireworks, Inc., 532 F.3d 709, 716 (8th Cir. 2008). Under Rule 15(a), when leave to
amend is not sought “as a matter of course,”- i.e., before being served with a responsive pleading
or within 20 days after serving the pleading if no responsive pleading is allowed and trial has not
yet been set, see Fed. R. Civ. P. 15(a)(1) - leave to amend pleadings should still be “freely given
when justice so requires.” See Fed. R. Civ. P. 15(a)(2). Even under this standard, however, “[a]
district court appropriately denies the movant leave to amend if ‘there are compelling reasons
such as undue delay, bad faith, or dilatory motive, repeated failure to cure deficiencies by
amendments previously allowed, undue prejudice to the non-moving party, or futility of the
amendment.’ ” Sherman, 532 F.3d at 715 (quoting Moses.com Sec., Inc. v. Comprehensive
Software Sys., Inc., 406 F.3d 1052, 1065 (8th Cir. 2005); Baptist Health v. Smith, 477 F.3d 540,
544 (8th Cir. 2007).
III.

DISCUSSION
Plaintiff seeks leave to add several defendants and new claims and states there has not

been undue delay, Defendants will not be prejudiced, and his amendments are not futile.
Defendants oppose Plaintiffs request stating Plaintiff has made an effort to cause undue delay
and failed to cure deficiencies in previous amendments. Defendants assert Plaintiff has not
conducted any discovery, therefore, the new allegations in the complaint were known to Plaintiff
when the lawsuit was filed.

Plaintiff filed his motion to amend the complaint within the deadline to amend pleadings
in the Case Management Order [ECF No. 36]. There is no indication Plaintiff has missed any
other deadlines. Although Plaintiff did not disclose any experts by the deadline for disclosure of
experts, Plaintiff stated he did not have any experts to disclose. Although Defendants suggest
Plaintiff is attempting to cause undue delay through these requests, the Court finds no evidence
of such suggestion. As such, the Court will allow Plaintiff’s request to file a Second Amended
Complaint and to add parties, except as it applies to Troy Paino.
Plaintiff’s Second Amended Complaint contains conclusory allegations as to Mr. Paino
and provides no factual basis for including him in this lawsuit. The only allegations which are
not conclusory as to Mr. Paino are paragraphs 81, 104, and 131 stating Mr. Paino called
Defendant LaBeth regarding his opposition to Plaintiff’s request for rezoning because it would
increase auto traffic to a dangerous level. These allegations are insufficient, and any claims
against Mr. Paino would quickly be dismissed if such an amendment were allowed. It is futile
and the Court will not permit such an amendment.
The parties shall file an amended case management order within thirty days of this order
accommodating the amendment and addition of parties, should any dates need to be extended.
Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s Motion for Leave to File Plaintiff’s Second
Amended Complaint [ECF No. 38], and Motion for Leave to Add Additional Parties [ECF No.
39] are GRANTED, in part, and DENIED, in part.
So Ordered this 21st day of October, 2015.

E. RICHARD WEBBER
SENIOR UNITED STATES DISTRICT JUDGE