Audrain Public Water Supply District No. 1 of Audrain County, Missouri v. City of Mexico, Missouri et al
MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that defendant's motion to dismiss Count II 31 is denied without prejudice to being reraised in a later motion that complies with the Local Rule. Signed by District Judge Catherine D. Perry on July 6, 2016. (MCB)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
AUDRAIN PUBLIC WATER SUPPLY, )
DISTRICT NO. 1 OF AUDRAIN
CITY OF MEXICO, MISSOURI, &
MISSOURI AMERICAN WATER
Case No. 2:15 CV 62 CDP
MEMORANDUM AND ORDER
Plaintiff Audrain Public Water Supply District (“the District”) is a Missouri
public water supply district with the right to exclusively provide water service to a
defined tract of land within Audrain County. 1 A portion of that defined tract falls
within the geographical limits of the Defendant City of Mexico, Missouri. The
City entered into a franchise agreement with Defendant Missouri American Water
Company (MAWC), which purportedly gave MAWC the right to provide water
service within the limits of the city. MAWC then began selling water service to
customers in the city, including in the area that overlaps with the District’s
The facts that follow are based on the allegations set out in the District’s amended complaint,
and are considered true for the purpose of this Memorandum and Order. See Ashcroft v. Iqbal,
556 U.S. 662, 678–79 (2009); Neitzke v. Williams, 490 U.S. 319, 326–27 (1989).
territory. The District brought this suit to prohibit defendants from further
providing water service within the disputed overlap area, and to recover damages.
Count I of the Amended Complaint alleged a violation of 7 U.S.C. § 1926(b).
Count II seeks damages for the defendants’ failure to comply with either MO. REV.
STAT. § 247.165 or § 247.170.
In filing its answer, defendant MAWC included a section entitled Motion to
Dismiss Count II of the Amended Complaint.2 Plaintiff MAWC alleges that those
statutes apply only to public water supply districts and municipalities, and not to
regulated utility companies such as MAWC. MAWC further asserts that even if
the statutes apply, the language is permissive rather than mandatory and it was not
required to take any actions in compliance.
Plaintiff opposes the motion on substantive grounds but also argues that this
motion to dismiss should be denied on procedural grounds because MAWC failed
to comply with Local Rule 7 – 4.01.3 I agree that the motion fails to comply with
the local rule. Although at times strict compliance with the Local Rule might be
excused, this motion presents a complicated issue of state law, and I believe it
should not be decided on the limited briefing that has been presented here.
MAWC filed its motion in a single document simultaneously with its answer, in a document
entitled “Answer and Motion to Dismiss.” A motion to dismiss under FRCP 12(b)(6) must be
filed before a responsive pleading is made. When it is filed after, it is typically treated as a
motion for judgment on the pleadings.
LR 7 – 4.01 requires, in part, that “[u]nless otherwise directed by the Court, the moving party
shall file with each motion a memorandum in support of the motion.”
Plaintiff filed a brief in opposition to the motion, but defendant has not filed a
reply brief, and defendant has made no attempt to discuss the case law cited by
plaintiff or to clarify exactly why it believes the Count fails to state a claim. I will
therefore deny the motion to dismiss without prejudice. If defendant wishes to file
a motion for judgment on the pleadings, it must comply fully with the local rule
and must provide a memorandum in support that discusses the relevant Missouri
case law and explains in more detail why it believes the Count fails to state a
claim. Of course, defendant could choose instead to raise the issue through a
motion for summary judgment after discovery has been completed.
IT IS HEREBY ORDERED that defendant’s motion to dismiss Count II
 is denied without prejudice to being reraised in a later motion that complies
with the Local Rule.
CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE
Dated this 6th day of July, 2016.
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