Higgins Electric, Inc. et al v. O'Fallon Fire Protection District

Filing 29

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that Defendant's Rule 12(b)(6) Motion to Dismiss (ECF No. 14) is GRANTED. A separate Order of Dismissal will accompany this Memorandum and Order. IT IS FURTHER ORDERED that Plaintiffs' Motion for Oral Argument (ECF No. 25) is DENIED as MOOT.. Signed by District Judge Ronnie L. White on 1/14/15. (JWJ)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
HIGGINS ELECTRIC, INC., and
LOCAL 57 OF THE ST. LOUIS
DISTRICT COUNCIL OF CARPENTERS
OF GREATER ST. LOUIS AND VICINITY,
Plaintiff,
v.
O' FALLON FIRE PROTECTION DISTRICT,
Defendant.

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No. 4:14CV956 RLW

MEMORANDUM AND ORDER
This matter is before the Court on Defendant' s Rule 12(b)(6) Motion to Dismiss (ECF
No. 14). The motion is fully briefed and ready for disposition. For the reasons set forth below,
the Court will grant Defendant's Motion to Dismiss.

I. Background
Plaintiff Higgins Electric, Inc. ("Higgins") is a Missouri corporation located in
Montgomery City, Missouri. (Second Am. Compl., 1, ECF No. 7) Plaintiffs Local 57 of the St.
Louis District Council of Carpenters of Greater St. Louis and Vicinity ("Carpenters") are a labor
organization and bring the action on behalf of the class of members employed by Higgins. (Id. at
, 2) Plaintiffs' action arises under 42 U.S.C. § 1983 and alleges violations of their equal
protection and due process rights under the First and Fourteenth Amendments to the United
States Constitution. (Id. at,, 4, 27-40) Plaintiffs also raise a claim of interference with freedom
of association rights under the Fourteenth Amendment. (Id. at ,, 41-46) Finally, Plaintiffs
claim that Defendant O' Fallon Fire Protection District ("District") violated Mo. Rev. Stat. §
321.220(4) and the Missouri Constitution. (Id. at,, 47-56)

According to Plaintiffs, during the Spring of 2014, Defendant District solicited bids for
the construction of a new fire house. (Id. at ii 9) The "INSTRUCTIONS TO BIDDERS"
contained an "INVITATION TO BID" with a Recommended Guide for Bidding Procedures and
Contract Awards. (Id. at ii 10) This guide provided that "the contract should be awarded to the
lowest responsible bidder." (Id. at ii 14) The guide also noted that the owner retained the right
to reject any and all bids but that rejection should not be used as a subterfuge to award a contract
to a bidder selected in advance. (Id. at ii 12) Plaintiffs maintain that Higgins submitted the
lowest responsible bid for the electrical construction on the fire house but was informed by an
agent of the District that Higgins did not receive the award for electrical construction because
Higgins' employees were represented by the Carpenters, which were not affiliated with the AFLCIO. (Id. at iiii 15-17) According to Plaintiffs, an agent of Defendant District represented that
the District was a signatory to a Project Labor Agreement ("PLA") and that the terms of said
PLA barred Higgins from participating in the fire house construction. (Id. at ii 18) However, at
the time of bidding, the District had not entered into a PLA, and a document entitled
"Determination of the O' Fallon Fire Protection District to Enter into a Union Project Labor
Agreement" merely indicated that the District was authorized to enter into a union-only PLA.
(Id. at iiii 19-24) On May 27, 2014, the District awarded the electrical construction work on the

fire house to another electrical contractor who employed members of the Laborers ' International
Union of North America and were not affiliated with the AFL-CIO. (Id. at iiii 25-26)
In their Second Amended Complaint, Plaintiffs allege that the Defendant District targeted
Plaintiffs Higgins and the Carpenters and attempted to interfere with Higgins' business and
employment of Carpenters because Higgins is not a signatory to a collective bargaining
agreement with Local 1 of the International Brotherhood of Electrical Workers ("IBEW"). (Id.

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at~

28) Plaintiffs contend that Defendant arbitrarily and maliciously treated Plaintiffs differently

from other similarly situated electrical contractors and employees of said contractors, depriving
Plaintiffs of their Equal Protection rights under the Fourteenth Amendment to the United States
Constitution. (Id.

at~~

29-30) Further, Plaintiffs assert that the District failed to meet the basic

standards of Due Process under the Fourteenth Amendment because it did not have objective
data to not award the electrical construction contract to Plaintiffs on more than surmise,
guesswork, or a gut feeling. (Id.

at~~

35-37) Plaintiffs also claim that Defendant targeted

Higgins and the Carpenters and attempted to interfere with the freedom of association because
Higgins is not a signatory to a collective bargaining agreement with Local 1 of the IBEW. (Id. at
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42) Finally, Plaintiffs maintain that Defendant violated the Missouri Constitution and Mo.

Rev. Stat. § 321.220(4) by not awarding the contract to the lowest responsible bidder and not
allowing all bidders for electrical construction of the fire house to compete on equal terms. (Id.
at~~

48-52) Plaintiffs seek compensatory and punitive damages.
II. Standard for Ruling on a Motion to Dismiss
A complaint must be dismissed under Federal Rule 12(b)(6) for failure to state a claim

upon which relief can be granted if the complaint fails to plead "enough facts to state a claim to
relief that is plausible on its face. " Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 570 (2007)
(abrogating the "no set of facts" standard set forth in Conley v. Gibson, 355 U.S. 41 , 45-46
(1957)). While the Court cautioned that the holding does not require a heightened fact pleading
of specifics, "a plaintiffs obligation to provide the ' grounds' of his ' entitle[ment] to relief
requires more than labels and conclusions, and a formulaic recitation of the elements of a cause
of action will not do." Id. at 555. In other words, " [f]actual allegations must be enough to raise

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a right to relief above the speculative level . ... " Id. This standard simply calls for enough facts
to raise a reasonable expectation that discovery will reveal evidence of the claim. Id. at 556.
Courts must liberally construe the complaint in the light most favorable to the plaintiff
and accept the factual allegations as true. See Id. at 555 ; see also Schaaf v. Residential Funding
Corp. , 517 F.3d 544, 549 (8th Cir. 2008) (stating that in a motion to dismiss, courts accept as

true all factual allegations in the complaint); Eckertv. Titan Tire Corp., 514 F.3d 801 , 806 (8th
Cir. 2008) (explaining that courts should liberally construe the complaint in the light most
favorable to the plaintiff). Further a court should not dismiss the complaint simply because the
court is doubtful that the plaintiff will be able to prove all of the necessary factual allegations.
Twombly, 550 U.S. at 556. However, " [w]here the allegations show on the face of the complaint

there is some insuperable bar to relief, dismissal under Rule 12(b)(6) is appropriate." Benton v.
Merrill Lynch & Co., 524 F.3d 866, 870 (8th Cir. 2008) (citation omitted). Courts "'are not

bound to accept as true a legal conclusion couched as a factual allegation. "' Ashcroft v. Iqbal,
U.S._ , 129 S. Ct. 1937, 1950 (2009) (quoting Twombly, 550 U.S. at 555). When considering
a motion to dismiss, a court can "begin by identifying pleadings that, because they are no more
than conclusions, are not entitled to the assumption of truth." Id. Legal conclusions must be
supported by factual allegations to survive a motion to dismiss. Id.

III. Discussion
A. Standing
Defendant District first argues that Plaintiffs lack standing to bring this suit. Defendant
contends that it was not bound to award Higgins the contract, whether or not Higgins submitted
the lowest bid. Thus, Defendant asserts that Plaintiffs were not deprived of anything to which it
was legally entitled and cannot state a cause of action. Metcalf & Eddy Servs., Inc. v. City ofSt.

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Charles, 701 S.W.2d 497, 499 (Mo. Ct. App. 1985). Plaintiffs, on the other hand, argue that they
have standing to challenge a contract award where the contracting authority exercises its
discretion to solicit and assess bids unlawfully or capriciously, or where the bidding procedure
did not permit all bidders to compete on equal terms. Metro. Express Servs., Inc. v. City of
Kansas City, 23 F.3d 1367, 1371 (8th Cir. 1994).
"[S]tanding is a jurisdictional prerequisite that must be resolved before reaching the
merits of a suit." City of Clarkson Valley v. Mineta, 495 F.3d 567, 569 (8 1h Cir. 2007). Standing
requires (1) that the plaintiff suffer an "injury in fact"; (2) that a causal connection exists
between the injury and the conduct complained of; and (3) that the injury will likely be redressed
by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) (citations
and internal quotations omitted).

When standing is challenged in a motion to dismiss, "the

standing inquiry must ... be done in light of the factual allegations of the pleadings." City of
Clarkson Valley, 495 F .3d at 570 (citation omitted). The party invoking federal jurisdiction has
the burden of establishing standing. Defenders of Wildlife , 504 U.S. at 561.
"[M]ultiple Missouri cases have held that a disappointed bidder competing for a
government contract does not have a special pecuniary interest in the award of the contract to it,
and therefore generally lacks standing to challenge the award of the contract to another bidder."
Pub. Commc 'ns Servs., Inc. v. Simmons, 409 S.W.3d 538, 546 (Mo. Ct. App. 2013); see also
Brannum v. City of Poplar Bluff, 439 S.W.3d 825, 829 (Mo. Ct. App. 2014); Metcalf & Eddy
Servs., Inc. v. City of St. Charles, 701 S.W.2d 497, 499 (Mo. Ct. App. 1985); La Mar Constr. Co.
v. Holt Cnty. , R-II Sch. Dist., 542 S.W.2d 568, 570-71 (Mo. Ct. App. 1976). Indeed, the
Missouri Supreme Court has explained that a disappointed bidder generally lacks standing
because the advertisement was an offer to receive proposals for a contract, not an offer of a

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contract, and because the statute requiring contracts to be given to the lowest and best bidder was
designed to benefit and protect the public, not the bidders. State ex rel. Johnson v. Sevier, 98
S.W.2d 677, 679 (Mo. 1936) (citation and internal quotations omitted). However, Missouri
courts also "recognize that members of the public have standing to challenge a contract award
where the contracting authority exercises its discretion to solicit and evaluate bids unlawfully or
capriciously." Simmons, 409 S.W.3d at 546. In addition, the Eighth Circuit Court of Appeals
has held that an unsuccessful bidder has standing to challenge a contract award where "the
bidding procedure did not permit all bidders to compete on equal terms." Metro. Express Servs.,
23 F.3d at 1371.
In the present case, Plaintiffs rely on Metropolitan Express Services to argue that they
have standing to challenge the District's contract award to a higher bidder because the procedure
did not permit all bidders to compete on equal terms. However, the facts of this case are
distinguishable from those in Metropolitan Express Services, where the plaintiff did not submit a
bid because the defendant provided the successful bidder with information not supplied to other
bidders, and, in tum, the defendant offered the successful bidder a contract materially different
from the contract proposed in the bid package. 23 F .3d at 13 71. The Eighth Circuit Court of
Appeals determined that the plaintiff had standing to challenge the bidding procedure where said
procedure prevented the plaintiff from submitting a bid. Id. at 1372.
Here, on the other hand, Higgins was invited to and did submit a bid on the fire house
project. Plaintiffs simply claim that the bidding procedures did not permit all bidders to compete
on equal terms; the contract was not fairly bid; the District's award was based on "surmise,
guesswork, or gut feeling"; and the failure to award the contract to Plaintiffs was "arbitrary,
capricious, and fraudulent." (Second Am. Compl.

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36, 50-56) Twombly requires that a

plaintiff plead facts sufficient to support conclusory allegations. 550 U.S. at 556. However,
here, Plaintiffs merely present bare assertions and have failed to present facts adequate to show
that the bidding procedure did not allow bidders to compete on equal and fair terms. Instead, the
facts presented in the Second Amended Complaint demonstrate that the District solicited bids,
Plaintiffs submitted a bid, and the District awarded the contract to another bidder. Plaintiffs are
merely disappointed bidders that did not have a special pecuniary interest in the award of a
contract. Metcalf & Eddy, 701 S.W.2d at 499. Thus, Plaintiffs have failed to meet their burden
of establishing standing to challenge the award of the contract at issue. See Demien Constr. Co.

v. O 'Fallon Fire Prot. Dist., No. 4:14-CV-1014 JAR, 2014 WL 7027626, at *3 (E.D. Mo. Dec.
11 , 2014) (finding that plaintiff lacked standing to challenge a contract awarded by O' Fallon Fire
Protection District where plaintiff failed to plead facts supporting its conclusory allegations that
the award did not permit bidders to compete on equal terms, that the contract was not fairly bid,
that the award was based on guesswork, and that the failure to award the contract to plaintiff was
arbitrary, capricious, and fraudulent).
Defendant additionally claims that Plaintiff Carpenters does not have standing to sue
because a labor union cannot bring a suit against a municipal entity on behalf of memberemployees that lack standing themselves to sue the entity. The Court agrees.
In Hunt v. Washington State Apple Adver. Comm 'n, 432 U.S. 333 (1977), the United
States Supreme Court held that, inter alia, an association has standing to sue on behalf of its
members where the members would otherwise have standing to sue in their own right. Id. at
343. As stated above, Higgins, and thus employees of Higgins, does not have standing to sue as
unsuccessful bidders under Missouri law, as Plaintiffs have failed to allege sufficient facts to
meet the standing requirements. Therefore, Carpenters does not have standing to bring a claim

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on behalf of its members. See Nat '! Fed 'n of the Blind of Missouri v. Cross, 184 F.3d 973 , 981
(8th Cir. 1999) (finding that the association did not have representational standing to bring the
claims of its members where the alleged injuries were merely hypothetical and thus the members
did not have standing); Disabled Citizens Alliance for Independence, Inc. v. Pratte, No.
4:08CV1021 JCH, 2008 WL 4488972, at *2-3 (E.D. Mo. Oct. 1, 2008) (holding that the
organization' s allegations did not satisfy the standing requirement where the organization failed
to demonstrate that the members would otherwise have standing to sue in their own right).
B. Claims under 42 U.S.C. § 1983

Although the Court finds that the Plaintiffs do not have standing to bring this law suit, the
Court will address the merits of the Plaintiffs' claims out of an abundance of caution. Plaintiffs
bring their federal claims under 42 U.S.C. § 1983 for alleged violations of their First and
Fourteenth Amendment rights to Equal Protection and Due Process. Under 42 U.S.C. § 1983:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State ... subjects, or causes to
be subjected, any citizen of the United States ... to the deprivation
of any rights, privileges, or immunities secured by the Constitution
and laws, shall be liable to the party injured in an action at law . ..
In order to establish liability under 42 U.S.C. § 1983, Plaintiffs "must establish that (1)
defendant(] acted under color of state law and (2) defendant[' s] wrongful conduct deprived them
of a constitutionally protected right." Soltan v. Accor North Am. , Inc., No. 09-1412(DSD/SRN),
2010 WL 187477, at *2 (D. Minn. Jan. 11 , 2010) (citation omitted).
1. Equal Protection

Under the Equal Protection Clause of the United States Constitution, the government
must treat all similarly situated people alike. Palmore v. City of Pacific, 851 F. Supp. 2d 1162,
1170 (E.D. Mo. 2010) (citation omitted). The Plaintiffs in this case must show that they were

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intentionally treated differently from other similarly situated bidders. Barstad v. Murray Cnty.,
420 F.3d 880, 884 (8th Cir. 2005). In their Second Amended Complaint, Plaintiffs aver that
Defendant District did not award the electrical construction contract to Higgins, even though
Higgins made the lowest responsible bid, because Higgins affiliates with the Carpenters instead
of the IBEW. (Second Am. Compl. iii! 15, 28, ECF No. 7) Plaintiffs maintain that Higgins and
Carpenter members were arbitrarily and maliciously treated differently from other similarly
situated electrical contractors and employees, thus violating Plaintiffs right to Equal Protection
under the Fourteenth Amendment. 1 (Id. at iii! 29-30)
The Court finds that Plaintiffs' broad and conclusory allegations are insufficient to
demonstrate an Equal Protection claim. First, Plaintiffs have failed to demonstrate that they are
members of a protected class for Equal Protection purposes. See McDonald v. City of Cape

Girardeau, MO, No. 1:04CV44 FRB, 2006 WL 1153896, at *7 (E.D. Mo. Apr. 26, 2006)
(finding that plaintiffs failed to show that the manner in which they conducted their banding
business brought them within a protected class). " [A] suspect class is one ' saddled with such
disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a
position of political powerlessness as to command extraordinary protection from the majoritarian
political process. "' Massachusetts Bd. ofRet. v. Murgia, 427 U.S. 307, 313 (1976) (quoting San

Antonia Sch. Dist. v. Rodriguez, 411 U.S. 1, 28 (1973)). Plaintiffs have not shown that they are
members of a protected class and simply assert that awarding the contract to another bidder,
which the District was entitled to do under the bidding procedures, constituted arbitrary and

1

Although Plaintiffs purport to bring an Equal Protection claim under the First Amendment as
well, the Equal Protection count references only a claim under the Fourteenth Amendment.
Plaintiffs do not provide any support for bringing an Equal Protection claim under the First
Amendment in either the Second Amended Complaint or any of its briefs pertaining to the
Motion to Dismiss. Thus, the Court finds that Plaintiffs have failed to state a First Amendment
claim for an Equal Protection violation.
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malicious treatment different from other similarly situated electrical contractors. Plaintiffs
merely proffer "'naked assertion[s]' devoid of ' further factual enhancement. "' Iqbal, 556 U.S. at
687 (quoting Twombly, 550 U.S. at 555, 557)). The Court finds that Plaintiffs are electrical
contractors and not part of a protected class warranting extraordinary protection.
Even if Plaintiffs can assert a claim as a "class of one", however, their Equal Protection
claims nevertheless fail. Plaintiffs acknowledge that the District solicited several bids for the
construction of the fire house. The "INSTRUCTIONS TO BIDDERS" and "INVITATION TO
BID" were provided to all electrical contract bidders. The District chose one bidder from the
pool of bidders. While Plaintiffs claim that Defendant District "arbitrarily and maliciously"
treated them differently from other similarly situated electrical contractors, they provide no facts
to support this claim. In the instant case, Plaintiffs must demonstrate that the District
intentionally treated them different from other, similarly situated electrical contractors. Barstad,
420 F.3d at 884 (" [A] class of one claimant may prevail by showing ' [it] has been intentionally
treated differently from others similarly situated and that there is no rational basis for the
difference in treatment. "') (quoting Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000)).
However, other than the bald assertions contained in the Second Amended Complaint, Plaintiffs
has failed to present any evidence that similarly situated electrical contractors received favorable
treatment over them. All bidders were subjected to the same bidding procedures and
requirements. Plaintiffs do not identify any bidders who were not required to follow these
instructions or show that they were the only electrical contractor denied the contract award on
allegedly impermissible grounds. Therefore, Plaintiffs' equal protection claim must fail. See

Barstad, 420 F.3d at 885-86 (denying plaintiff landowners' equal protection claim where
plaintiffs failed to show that they were intentionally treated differently from other similarly

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situated landowners and where they failed to demonstrate that they were the only landowners
wrongfully denied a permit).

2. Due Process
Next, Plaintiffs argue that Defendant District violated their Fourteenth Amendment rights
to Due Process. Although the Complaint is unclear, Plaintiffs argue in their Response to the
Motion to Dismiss, that they are raising both procedural and substantive Due Process claims.
"Analysis of either a procedural or substantive due process claim must begin with an
examination of the interest allegedly violated." Dover Elevator Co. v. Arkansas State Univ., 64
F .3d 442, 445-46 (8th Cir. 1995) (citation omitted). Plaintiffs argue that bidding procedures
required that the bid be awarded to the "lowest responsible bidder" and that they were, in fact,
the lowest responsible bidder and fulfilled all the requirements set forth in the bidding
documents. Therefore, Plaintiffs assert that they had an interest in receiving the contract award.
Defendant District contends that Plaintiffs had no property interest in the contract award such
that the claim should be dismissed.
"To establish a procedural due process violation, a plaintiff must demonstrate that he has
a protected property or liberty interest at stake and that he was deprived of that interest without
due process oflaw." Hopkins v. Saunders, 199 F.3d 968, 975 (8th Cir. 1999); see also Swipies v.

Kojka., 419 F.3d 709, 715 (8th Cir. 2005). Further, to possess a property interest in a benefit, a
person must have more than an abstract need or desire and more than a unilateral expectation.
Bd. of Regents v. Roth, 408 U.S. 564, 577 (1972). Instead, the person must "have a legitimate
claim of entitlement to it." Id. "State law determines the sufficiency of the claim of entitlement
to a property interest." Hanten v. Sch. Dist. Of Riverview Gardens, 183 F.3d 799, 808 (8th Cir.
1999) (citation omitted). As stated above, Missouri law does not recognize a property right to a

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contract by an unsuccessful bidder on a construction project. Id ; see also Brannum, 429 S.W.3d
at 830; Metcalf, 701 S.W.2d at 499. Plaintiffs are unable to demonstrate a property interest in a
right to the electrical construction contract based on its status as an unsuccessful bidder.
Further, the language in the bidding procedures upon which Plaintiffs rely does not
obligate Defendant to award the contract to the lowest responsible bidder. The invitation states
that "[i]t is the intent of the Owner to award a contract to the lowest responsible bidder provided
the bid has been submitted in accordance with all requirements of the bidding documents ....
The Owner reserves the right, however, to award Contract in his best interest, and, therefore,
reserves right to select a Bidder other than the lowest." (Invitation to Bid, p. 7, ECF No. 7-1)
The INVITATION TO BID also incorporates the "Recommended Guide for Bidding Procedures
and Contract Awards," which provides, " [t]he contract should be awarded to the lowest
responsible bidder." (Recommended Guide for Bidding Procedures and Contract Awards, p. 10,
ECFNo. 7-2)
Plaintiffs maintain that the language contained in the recommended guide obligated
Defendant District to award the contract to Plaintiffs. However, the guide merely states that the
contract "should be" awarded to the lowest responsible bidder, not "must be." Read together, the
provisions clearly give the District the discretion to choose or not choose the lowest responsible
bidder. Plaintiffs' unilateral expectation that it would receive the contract award does not
amount to a property interest. See Hanten , 183 F.3d at 809 (finding that a one-sided expectation
of a subcontractor award was insufficient to create a property interest); see also Indep. Enters. ,

Inc. v. Pittsburgh Water & Sewer Auth. , 103 F.3d 1165, 1178 (3rd Cir. 1997) (stating that a
contractor bidding on a public contract had not legitimate expectation of receiving that contract
until the contract was actually awarded); Kim Constr. Co., Inc. v. Bd of Trustees of Vil!. of

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Mudelein, 14 F.3d 1243, 1245-50 (7th Cir. 1994) (finding the low bidder for a construction
contract did not have a property interest); Assoc. Builders & Contractors, Inc. v. City ofSeward,
966 F.2d 492, 499 (9th Cir. 1992) (overruled on other grounds by Chamber of Commerce of US.
v. Lockyer, 463 F.3d 1076 (9th Cir. 2006)) (holding that wishful bidders to a construction contract
had no property interest in a renovation project).
Likewise, Plaintiffs are unable to show that Defendant District violated Plaintiffs'
substantive Due Process rights. The substantive component of the Due Process Clause "protects
individual liberty against ' certain government actions regardless of the fairness of the procedures
used to implement them. "' Collins v. City of Harker Heights, 503 U.S. 115, 125 (1992) (quoting
Daniels v. Williams, 474 U.S. 327, 331 (1986)). " (T]he theory of substantive due process is
properly reserved for the truly egregious and extraordinary cases .. . ." Myers v. Scott Cnty., 868
F.2d 1017, 1018 (8th Cir. 1989). "To prevail on a substantive due process claim, [Plaintiffs] must
show ' a constitutionally protected property interest and that .. . officials used their power in such
an arbitrary and oppressive way that it ' shocks the conscience."' Novotny v. Tripp Cnty., S.D.,
664 F.3d 1173, 1178 (8th Cir. 2011) (quoting Gallagher v. Magner, 619 F.3d 840 (8th Cir. 2010)).
As stated above, Plaintiffs have faiied to demonstrate that they have a constitutionally
protected property interest. Further, Plaintiffs' Due Process allegations in the Complaint do not
assert factual allegations that Defendant District's decision to choose a different bidder shocked
the conscience. Instead, Plaintiffs merely present naked assertions of a substantive Due Process
violation.2 Iqbal, 556 U.S. at 687. The Court therefore finds that Plaintiffs fail to state a claim
that the District violated their Due Process rights.

2

Plaintiffs cite to Mo. Rev. Stat. § 321.220(4) for the proposition that the statutory "bidding
procedure" conveys entitlement to a contract at the bidding stage. This statute merely sets out
the powers of a fire protection district and does not create a property right to a contract award.
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3. Freedom of Association
Plaintiffs claim that Defendant violated their constitutional right of freedom of
association by choosing an IBEW affiliated contractor over Higgins. Defendant District
contends that the Freedom of Association does not prevent an entity from choosing one union
contractor over another based in part on the unions involved.
"There is no doubt that 'the freedom of an individual to associate for the purpose of
advancing beliefs and ideas is protected by the First and Fourteenth Amendments. "' Hanten ,
183 F.3d at 805 (quotingAboodv. Detroit Bd. of Educ., 431U.S. 209, 233 (1977)). However,
the First Amendment does not require an entity "to recognize and bargain with all unions equally
. .. [and] [i]ts decision to recognize [other] unions does not implicate the First Amendment."
Sacco v. Pataki, 982 F. Supp. 231 , 242 (S.D.N.Y. 1997). Further, the Eighth Circuit Court of
Appeals has held that a governmental preference for hiring union labor in the construction
industry does not "directly or substantially" interfere with the rights of laborers from joining a
umon. Hanten, 183 F.3d at 806.
Plaintiffs' Complaint fails to claim that Defendant's preference for an IBEW contractor
would prevent Higgins employees from associating with the Carpenters. Int 'l Ass 'n of
Firefighters, Local No. 3038 v. City of Kansas City, upon which Plaintiffs rely, is inapposite.
220 F.3d 969, 973 (8th Cir. 2000). In that case, a city ordinance prohibited supervisory-level
employees from belonging to the same labor organization as the employees they supervised. Id.
at 971. The Eighth Circuit held that the ordinance was unconstitutional because it infringed on

Indeed, the statute merely states that "notice shall be published for the bids on all construction ..
." Mo. Rev. Stat.§ 321.220(4). Plaintiffs concede that they received notice, and the Court finds
that the District complied with the directives of the statute. Demien Constr., 2014 WL 7027626,
at *5. Further, even if the District misapplied the statute, "state-law error, no matter how
fundamental, cannot in and of itself create a federal due-process violation." Chesterfield Dev.
Corp. v. City of Chesterfield, 963 F.2d 1102, 1105 (8th Cir. 1992) (citations omitted).
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the union members' associational rights, and the justification proffered by the city was
unreasonable. Id. at 975.
Here, Plaintiffs' Complaint merely asserts that Defendant District "attempted to interfere
with the freedom of association," not that the decision to choose a contractor associated with a
different union somehow prevented Plaintiffs and their employees from associating with a union.
(Second Am. Compl. if 42, ECF No. 7) Indeed, a claim that "one union was favored over
another . .. does not state a claim of violation of the First Amendment." Sacco, 982 F. Supp. at
242. Thus, the Court finds that Defendant District's decision to choose a contractor associated
with a different union does not implicate Plaintiffs' First Amendment right to freedom of
association. As such, dismissal of that claim under Rule 12(b)(6) is appropriate.

C. State Law Claims
In Count IV of the Second Amended Complaint, Plaintiffs assert that Defendant District
violated Mo. Rev. Stat. § 321.220(4) and the Missouri Constitution. The undersigned notes that
the Court has jurisdiction over the remaining claims on the basis of supplemental jurisdiction. 28
U.S.C. § 1367. "Whether to exercise supplemental jurisdiction over a remaining state law claim
is within the court's discretion; however, federal district courts generally should exercise judicial
restraint and avoid state law issues when possible because such claims are more properly heard
by state courts." Demien, 2014 WL 7027626, at *5 (citation omitted). Because this Court has
determined that Plaintiffs' federal claims must be dismissed, it will decline to exercise
supplemental jurisdiction over Plaintiffs' state law claims.
Accordingly,

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IT IS HEREBY ORDERED that Defendant's Rule 12(b)(6) Motion to Dismiss (ECF

No. 14) is GRANTED. A separate Order of Dismissal will accompany this Memorandum and
Order.
IT IS FURTHER ORDERED that Plaintiffs' Motion for Oral Argument (ECF No. 25)

is DENIED as MOOT.
Dated this 14th day of January, 2015.

~£~

UNITED STATES DISTRICT JUDGE

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