Glickert et al v. The Loop Trolley Transportation Development District, et al.

Filing 120

MEMORANDUM..Defendant Loop Trolley TDDs motion to dismiss and for summary judgment (#44) will be granted in a separate order. Motions filed by the remaining defendants will be denied as moot. Signed by District Judge Stephen N. Limbaugh, Jr on 4/28/14. (MRS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

ELSIE BECK GLICKERT, et al.
Plaintiffs,
vs.
THE LOOP TROLLEY
TRANSPORTATION DEVELOPMENT
DISTRICT, et al.
Defendants

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No. 4:13cv2170 SNLJ

MEMORANDUM
Plaintiffs filed a five-count complaint against seventeen defendants related to the
formation of the Loop Trolley Transportation Development District (the “District”) in St.
Louis County, Missouri. Several defendants have been dismissed, and the following
defendants remain: the District, a member of its Board of Directors (John Nations, in his
capacity as a member of that Board), the Loop Trolley Company (“Company”), the City of
St. Louis, University City, the Catlin Tract Board of Trustees (“Catlin Corporation”), two
members of the Catlin Tract Subdivision Board of Trustees (John Daniel and Sean
Gannon, in their capacity as Board members), and one purported Trustee of the Catlin
Tract Subdivision Board of Trustees (Anne S. Carlson, in her capacity as a purported
Board member).
Presently before the Court are several Motions to Dismiss, a Motion for Summary

Judgment, and a Motion to Strike. After an extended briefing schedule, the motions are
now ripe for disposition.
I.

Background
At the heart of this matter is the formation of the Loop Trolley Transportation

Development District (the “District”). A “transportation development district” is a
creature of statute, the Transportation Development District Act, § 238.205 et seq. RSMo
(“TDD Act”). A transportation development district may be “created to fund, promote,
plan, design, construct, improve, maintain, and operate one or more projects or to assist in
such activity.” § 238.205 RSMo. Such districts are considered political subdivisions of
the state. Id. The statute outlines procedures for creation of transportation development
districts, which involves filing a petition with a circuit court of any county partially or
totally within the proposed district. § 238.207 RSMo.
In the case of the District at issue here, University City filed such a petition with the
Circuit Court of St. Louis County in accordance with § 237.207.2 RSMo in August 2007
(the “Formation Lawsuit” or “Formation Petition”). University City is a municipal
corporation and political subdivision of Missouri located within St. Louis County, and it is
also “local transportation authority” under § 238.202.1(4) RSMo. The project University
City had in mind was the development of a trolley-car system from the Delmar Loop in
University City to Forest Park in the City of St. Louis, funded in part by the levy of a retail
sales tax within the District’s geographical boundaries. The petition named as respondents

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the Missouri Highways and Transportation Commission, the City of St. Louis, and the
County of St. Louis, among others. In accordance with the TDD Act, the Petition
requested that the question of whether to establish the District be submitted to qualified
voters within the District limits.
Under the TDD Act — which governed the process by which the parties and the
Court proceeded — such a petition is served on the respondents, and the court also
publishes notice of the Formation Petition once a week for four consecutive weeks through
publication in area newspapers. § 238.212 RSMo. Respondents to the petition could
oppose the petition and seek a declaratory judgment from the circuit court that the
proposed district is illegal or unconstitutional. § 238.210.1 RSMo. In addition, “[a]ny
resident, taxpayer, any other entity, or any local transportation authority within the
proposed district may join in or file a petition supporting or answer opposing the creation
of the district and seeking a declaratory judgment respecting these same issues within
thirty days after the date notice is last published by the circuit court.” Id.
The TDD Act supplies the language of the ballot question to be posed to voters and
other election procedures. §§ 238.215-6 RSMo. At the time of the Formation Petition at
issue here, “qualified voters” included both registered voters residing in the proposed
district and property owners.1 Registered voters received one vote each, and property
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In 2008, the definition of “qualified voters” set forth in the TDD Act was amended such
that property owners are designated qualified voters only if there are no registered voters residing
in the district. That new definition of qualified voters remains the current state of the law at this
time.
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owners received one vote per acre. Id.
On December 18, 2007, after no opposition to the Formation Petition had been
filed, the circuit court ordered that the mail-in election occur. On May 14, 2008, the
election judges transmitted to the circuit court the certified results of the mail-in election,
in which 38.097 votes were cast in favor and 0.88 votes were cast against the formation of
the District. On July 1, 2008, the Circuit Court entered a final judgment that the “Loop
Trolley District and the method of funding are neither illegal nor unconstitutional.” That
“TDD Judgment” established the District as a political subdivision in accordance with the
Act and approved the sales tax and funding of the District through imposition of the tax.
The sales tax was imposed and has been collected since August 7, 2008.
A portion of the Loop Trolley’s planned route traverses a part of Lindell Boulevard
known as the South Strip, which is located in a private subdivision known as the Catlin
Tract. That subdivision was created and is governed by an indenture of trust dated
December 19, 1908 (“Indenture”). On December 6, 1909, the Trustees of the Catlin Tract
Subdivision (“Trustees”) deeded the South Strip to the City of St. Louis with a restriction
against building a railroad or street railway on the South Strip. On January 7, 2013, the
trustees of the Catlin Subdivision held a meeting, and one Trustee called for a vote of the
homeowners on the question of whether the Trustees should be authorized to waive the
Indenture’s restrictions to allow the Loop Trolley District to build and operate a streetcar
across Lindell Boulevard. Sometime after the vote on January 7, 2013, that Trustee

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announced that the homeowners had voted to waive the aforesaid indenture restriction.
The “Catlin Tract Waiver” was recorded with the City of St. Louis on January 29, 2013,
granting the Loop Trolley District a waiver to construct and operate the trolley on the
South Strip.
Plaintiffs are four individuals. None of the four plaintiffs resides within the
District, but one (Peter Sarandos) owns property in the District. Another plaintiff resides
in the Catlin Subdivision. Together, the four plaintiffs brought a five-count complaint
pertaining to the formation and development of the Loop Trolley District. Remaining
defendants include the District, board member John Nations, the City of St. Louis,
University City, the Catlin Tract Board of Trustees (“Catlin Corporation”), two members
of the Catlin Tract Subdivision Board of Trustees (John Daniel and Sean Gannon), and
one purported Trustee of the Catlin Tract Subdivision Board of Trustees (Anne S.
Carlson). Each of the five counts seeks a declaratory judgment and permanent injunction.
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Count I seeks a finding that the TDD Act’s voting and balloting provisions
are, on their face or as applied, unconstitutional and thus that the judgment
creating the District is void. Plaintiffs’ claims are made under both the
Missouri and United States Constitutions.

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Count II seeks a finding that the judgment creating the District is invalid
due to the defendant cities’ failure to enact ordinances, irregular balloting
issues, and the failure of the court clerk to effect public notice. This Count

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is based upon state law claims and is brought under the Court’s supplemental
jurisdiction, 28 U.S.C. § 1367.
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Count III seeks a holding that the District cannot construct its system
outside the District’s geographical boundaries. This Count is based upon
state law claims and is brought under the Court’s supplemental jurisdiction,
28 U.S.C. § 1367.

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Count IV asserts that the Catlin Tract Waiver provided by the Trustees is
invalid and seeks to prohibit construction of the trolley across the
Subdivision land. This Count is based upon state law claims and is brought
under the Court’s supplemental jurisdiction, 28 U.S.C. § 1367.

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Count V alleges that the various defendants lack conditional use permits
from the City of St. Louis and University City to build and operate the
trolley system. This Count is based upon state law claims and is brought
under the Court’s supplemental jurisdiction, 28 U.S.C. § 1367.

Numerous dispositive motions and voluminous memoranda for and against the
motions have been filed. They are ripe for disposition. However, because the Court holds
that the Loop Trolley District prevails in its motion to dispose of Count I, and the Court
will dismiss the remaining counts as described below, the Court need not reach the
remaining motions.

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II.

Legal Standard
Federal Rule of Civil Procedure 12(b)(1) requires dismissal if the court lacks

subject matter jurisdiction over the claim. The standards applied to a Rule 12(b)(1) motion
to dismiss are the same as those that apply to a Rule 12(b)(6) motion to dismiss for failure
to state a claim. Vankempen v. McDonnell Douglas Corp., 923 F. Supp. 146, 147
(E.D.Mo.1996) (citing Satz v. ITT Fin. Corp., 619 F.2d 738, 742 (8th Cir.1980)).
The purpose of a Rule 12(b)(6) motion to dismiss for failure to state a claim is to
test the legal sufficiency of a complaint so as to eliminate those actions “which are fatally
flawed in their legal premises and designed to fail, thereby sparing litigants the burden of
unnecessary pretrial and trial activity.” Young v. City of St. Charles, 244 F.3d 623, 627
(8th Cir. 2001) (quoting Neitzke v. Williams, 490 U.S. 319, 326-27 (1989)). Although a
complaint challenged by a Rule 12(b)(6) motion does not need detailed factual allegations,
a petitioner must still provide the grounds for relief, and neither “labels and conclusions”
nor “a formulaic recitation of the elements of a cause of action” will suffice. Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations omitted). “To survive a
motion to dismiss, a claim must be facially plausible, meaning that the ‘factual content . . .
allows the court to draw the reasonable inference that the respondent is liable for the
misconduct alleged.’” Cole v. Homier Dist. Co., Inc., 599 F.3d 856, 861 (8th Cir. 2010)
(quoting Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009)). The Court must “accept the
allegations contained in the complaint as true and draw all reasonable inferences in favor

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of the nonmoving party.” Id. (quoting Coons v. Mineta, 410 F.3d 1036, 1039 (8th Cir.
2005)).
Pursuant to Rule 56(c), a district court may grant a motion for summary judgment if
all of the information before the court demonstrates that “there is no genuine issue as to
material fact and the moving party is entitled to judgment as a matter of law.” Poller v.
Columbia Broadcasting System, Inc., 368 U.S. 464, 467 (1962).
III.

Discussion
Plaintiffs seek relief in Counts I under both the United States and Missouri

Constitutions. The remaining four Counts are state law claims brought pursuant to this
Court’s supplemental jurisdiction under 28 U.S.C. § 1367. Because this Court holds that
plaintiffs Elsie Beck Glickert, Jen Rivenes Jensen, and Irene Franklin lack standing to
bring their federal claims, those claims are dismissed. As for plaintiff Peter Sarandos, his
claims are barred by the TDD Judgment. Because this Court declines to exercise its
jurisdiction over the remaining state law claims, all remaining claims will be dismissed as
well.
A.

Motion to Dismiss for Lack of Subject Matter Jurisdiction

Plaintiffs’ Count I attacks the TDD Act and Judgment as unconstitutional, and they
seek a declaration that the District does not exist. Article III of the United States
Constitution limits federal judicial power to “cases or controversies,” and that power exists
only to redress or otherwise protect against injury to the complaining party. Warth v.

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Seldin, 422 U.S. 490, 499 (1975). The question of standing “involves both constitutional
limitations on federal-court jurisdiction and prudential limitations on its exercise.” Warth,
422 U.S. at 498.
First, “to satisfy Article III’s standing requirements, a plaintiff must show (1) it has
suffered an ‘injury in fact’ that is (a) concrete and particularized and (b) actual or
imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the
challenged action of the defendant; and (3) it is likely, as opposed to merely speculative,
that the injury will be redressed by a favorable decision.” Friends of the Earth, Inc. v.
Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000) (citing Lujan v. Defenders
of Wildlife, 504 U.S. 555, 560-561 (1992)).
In addition to Article III standing, plaintiffs must also establish prudential standing
that is designed to ensure that the role of federal courts is properly limited. Bennett v.
Spear, 520 U.S. 154, 162 (1997). For instance, standing may be denied where the plaintiff
asserts a generalized harm shared by a large class of citizens or where the plaintiff’s claims
rest on the legal rights or interests of third parties. Warth, 422 U.S. at 499.
In determining whether plaintiffs have established standing, the Court assumes the
facts stated in the Complaint to be true and construes the Complaint liberally in the light
most favorable to the Plaintiffs. Miller v. Redwood Toxicology Lab., Inc., 688 F.3d 928,
933-34 n. 4 & 5 (8th Cir. 2012). Nevertheless, it is still necessary to include some
“‘well-pleaded factual allegations’” to support the claim. Id.

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Three of the four plaintiffs are residents of St. Louis and University City. The
fourth plaintiff, Peter Sarandos, lives in St. Charles County and owns property in the
District.
First, plaintiffs suggest they have standing to bring these claims as taxpayers.
However, the sales tax is not imposed on plaintiffs; it is imposed on sellers. The TDD
Judgment provides that “[t]he District shall be funded through the imposition of the Sales Tax
pursuant to Section 238.235 of the Act.” Section 238.235.2 reads, in relevant part, “[t]he
resolution imposing the sales tax pursuant to this section shall impose upon all sellers a tax
for the privilege of engaging in the business of selling tangible personal property or
rendering taxable services at retail to the extent and in the manner provided in sections
144.010 to 144.525.” § 238.235(2) RSMo (emphasis added).
Plaintiffs claim they nonetheless bear the burden of the tax, but that argument has
been rejected by the Missouri Supreme Court: the “fact that the purchaser bears the
economic burden of the sales tax does not alter the statutory scheme which imposes the
sales tax on sellers.” Centerre Bank of Crane v. Dir. of Revenue, 744 S.W.2d 754, 759
(Mo. banc 1988). Although not stated in the context of standing issues, the Missouri
Supreme Court could not be more clear: “ the seller is the taxpayer for purposes of our
sales tax law.” Id. at 760. In addition, even if the Court accepted their “pass-through”
taxpayer status, plaintiffs’ decision to shop in the District and thus pay taxes is entirely
voluntary. See In re Clarkson Kehrs Mill Transp. Dev. Dist., 308 S.W.3d 748, 754 (Mo.

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App. E.D. 2010) (observing that “[m]ovants will only have to pay the Sales Tax if they
choose to utilize the improvements to access the development of which they complain”
and holding that, as a result, they did “not have an interest constituting a direct and
immediate claim to the subject of the underlying action” to justify intervention in the TDD
proceedings as a matter of right). The mere fact that plaintiffs may choose to shop in the
District does not grant them taxpayer standing. See also, e.g., Winter Bros. Underground
Inc. v. City of Beresford, 652 N.W.2d 99, 105 (S.D. 2002) (rejecting taxpayer standing
argument based on payment of sales tax).
Next, plaintiffs allege that they are patrons of the District businesses and that they
are pedestrians and motorists within the District and along the proposed trolley route, thus
they will be affected by the Loop Trolley. However, prudential standing considerations
prohibit federal courts from exercising jurisdiction over litigation of “a generalized
grievance shared in substantially equal measure by all or a large class of citizens.” Warth,
422 U.S. at 499. Grievances such as plaintiffs’ — which amount to perceived
inconveniences which will be shared by the general public — are within the purview of the
political process and not the courts. United States v. Richardson, 418 U.S. 166, 179
(1974).
Plaintiffs say that they are proximate to the Trolley route, so, like the Friends
environmental plaintiffs, plaintiffs contend their harm is special and sufficient to allow for
standing. But in Friends, standing was made available by a statute that conferred standing

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to any person “having an interest which is or may be adversely affected” to bring suit to
enjoin pollution. Friends of the Earth, 528 U.S. at 173 (quoting 33 U.S.C. §§ 1365(a),
(g)). Those environmental plaintiffs — and others suing under a statute — need not meet
prudential standing requirements because Congress may eliminate such requirements
through legislation. Defenders of Wildlife, Friends of Animals & Their Env't v. Hodel, 851
F.2d 1035, 1039 (8th Cir. 1988). Plaintiffs here, on the other hand, rely on no such statute,
and their generalized grievances pertaining to traffic, pedestrian flow, or general distaste
for the Trolley project are grievances within the purview of the political process. See
Richardson, 418 U.S. at179; see also Warth, 422 U.S. at 499.
Plaintiffs Sarandos stands, however, in somewhat different shoes. He is the only
one of the four plaintiffs who owns property within the District. Although such a status
may provide him with standing in this case, the Court need not address it because his
claims fail for a separate reason, discussed below.
B.

Summary Judgment: The TDD Judgment Bars Sarandos’s Claim

It is undisputed that the Circuit Court of St. Louis County entered the TDD
Judgment establishing the District on July 1, 2008. This Court must give the same
preclusive effect to the state court judgment that it would be given in the courts of
Missouri. 28 U.S.C. § 1738. Missouri law is clear that the judgment establishing a
transportation development district is final and given preclusive effect over those who
could have intervened in the Formation Litigation. KCAF Investors, L.L.C. v. Kansas City

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Downtown Streetcar Transp. Dev. Dist., 414 S.W.3d 470, 483 (Mo. App. W.D. 2013),
reh’g and/or transfer denied (Oct. 1, 2013), transfer denied (Dec. 24, 2013).
KCAF Investors is precisely on point against plaintiff Sarandos, who owned
property in the District and in fact took part in the vote regarding the District’s
establishment. In that case, a group of property owners filed a lawsuit in Missouri state
court that challenged the creation of a district created for the purpose of operating a street
car system in Kansas City. The state court held that the property owners were barred from
bringing their suit after the Jackson County Circuit Court had entered a final order
approving the district, the imposition of a sales tax, and imposition of a real property
assessment. KCAF Investors, 414 S.W.3d at 483. The court relied on § 238.210.1 RSMo,
which states “[a]ny resident, taxpayer, any other entity, or any local transportation
authority within the proposed district may join in or file a petition supporting or answer
opposing the creation of the district and seeking a declaratory judgment respecting these
same issues within thirty days after the date notice is last published by the circuit court.”
Pursuant to that section, then, and in accordance with the requirement that the Court
publish notice of the proposed District for four weeks, § 238.212 RSMo, the court held
that the property owners were required to voice their objections in the formation lawsuit,
and not through separate litigation. 414 S.W.3d at 483.
The court observed that “the Act’s structure and wording clearly indicate that the
legislature intended that the circuit court’s ruling on the legality of the proposed

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transportation development district, and its funding mechanisms, would be definitive, and
that any person or entity objecting to the proposed district would voice their objections
during the formation litigation itself.” Id. That is, to the extent an affected party had — as
plaintiff Sarandos has here — “threshold objections to the legality or constitutionality of
the proposed district or funding mechanisms,” such “affected parties have an obligation to
intervene in the formation litigation” or else face a bar from later raising those claims
separately. Id.
Here, plaintiffs admit that plaintiff Sarandos could have intervened in the
Formation Litigation (#91 at 20), and he is thus barred from bringing his claims in Count I.
See KCAF Investors, 414 S.W.3d at 483.2
The Court also notes that, although neither party raised this matter in the briefing,
plaintiff Sarandos makes both facial and as-applied challenges to the TDD Act. To the
extent Sarandos could not have objected to the balloting procedures until after the time to
intervene under § 328.210.1 RSMo had passed, Sarandos is still barred from bringing his
claim because the TDD statute required him to bring an election contest under Chapter 115
RSMo. § 238.216.5 RSMo. Indeed, in KCAF Investors, the trial court held that the
property owners’ challenges were in fact “election contests” which were untimely under §
115.577 RSMo. 414 S.W.3d at 473. Plaintiff Sarandos similarly should have brought all
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The District argues that all four plaintiffs are barred from bringing claims because they
should have intervened in the Formation Lawsuit in accordance with § 238.210.1. The Court
need not reach that argument, however, because it has already held that plaintiffs Glickert,
Jensen, and Franklin lack standing to bring their federal claims.
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of his claims either as an intervener in the Formation Lawsuit, or, perhaps, through an
election contest under Chapter 115 RSMo. Those were his sole remedies, and he is barred
from making those claims here as a result.
C.

Remaining State Law Claims

Plaintiffs have no standing or are barred from bringing their lawsuit as to Count I,
which leaves the Court with Counts II through V. All four of those counts are state law
claims brought under this Court’s supplemental jurisdiction pursuant to 28 U.S.C. § 1367.
Having disposed of the federal claims on which those four counts depend for jurisdiction,
the Court will dismiss those remaining claims pursuant to 28 U.S.C. § 1367(c)(3). See,
e.g., Ventimiglia v. AT&T Yellow Pages, 543 F. Supp. 2d 1038, 1045 (E.D. Mo. 2008).
IV.

Conclusion
Defendant Loop Trolley TDD’s motion to dismiss and for summary judgment (#44)

will be granted in a separate order. Motions filed by the remaining defendants will be
denied as moot.
Dated this 28th day of April, 2014.

STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE

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