Swiish, LLC. et al v. Nixon et al

Filing 25

MEMORANDUM AND ORDER -....IT IS HEREBY ORDERED that defendants Nixon, Replogle, and Missouri State Highway Patrol's Motions to Dismiss, construed as motions pursuant to Rule 12(b)(1), Fed. R. Civ. P., are GRANTED as to plaintiffs' claims under 42 U.S.C. § 1983, and those claims are DISMISSED for lack of subject matter jurisdiction based on Eleventh Amendment immunity and lack of ripeness. [Docs. 5,7,9] IT IS FURTHER ORDERED that on the Court's own motion, plaintiffs' claims against defendants City of Ferguson, City of Jennings, and St. Louis County under 42 U.S.C. § 1983 areDISMISSED for lack of ripeness. IT IS FURTHER ORDERED that defendant City of Ferguson's Motion to Dismiss is DENIED as moot, without prejudice. [[Doc. 18] IT IS FURTHER ORDERED that plaintiffs' state law claims will be remanded to the Circuit Court for the County of St. Louis, State of Missouri, from which this case was removed. An appropriate order of partial dismissal and remand will accompany this Memorandum and Order.. Signed by District Judge Charles A. Shaw on 2/27/2015. (MRC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

SWIISH, a Missouri Limited Liability
Corporation, et al.,
Plaintiffs,
v.
GOVERNOR JAY NIXON, et al.,
Defendants.

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No. 4:14-CV-2089 CAS

MEMORANDUM AND ORDER
This removed matter is before the Court on separate motions to dismiss filed by defendants
Governor Jay Nixon, Ronald K. Replogle, Superintendent of the Missouri State Highway Patrol, and
the Missouri State Highway Patrol (collectively the “State defendants”), pursuant to Rule 12(b)(6)
of the Federal Rules of Civil Procedure. Plaintiffs oppose the motions, which are fully briefed and
ready for decision. For the following reasons, the State defendants’ motions, construed as motions
pursuant to Rule 12(b)(1), Fed. R. Civ. P., will be granted and this matter will be remanded to state
court for lack of subject matter jurisdiction.
I. Background
Plaintiffs Swiish, LLC, Corey Nickson-Clark and Chantelle Nickson-Clark own and operate
the Swiish Bar and Grill (the “Bar”) located at 8021 West Florissant Avenue in St. Louis County,
Missouri. Plaintiffs allege that on August 10, 2014, they were ordered to close the Bar and the
defendants established a police command center immediately in front of the Bar and occupying all

of its dedicated parking lot.1 Plaintiffs allege that the command center blocked access to the Bar and
caused it to be closed from August 10, 2014 until August 27, 2014.
Plaintiffs assert the Bar’s closure constituted a taking of their property for public use by the
defendants in violation of the “Missouri and United States Constitutions, pursuant to Missouri
common law and 42 U.S.C. § 1983.” Petition at 4, ¶ 22. Plaintiffs allege they suffered damages as
a result of the Bar’s closure, for lost income and damage to food stock in an amount in excess of
$25,000. Plaintiffs seek judgment against “all defendants, jointly and severally, for damages in an
amount exceeding $25,000 pursuant to Missouri Common Law and 42 U.S.C. § 1983[.]” Petition
at 4.
The State defendants removed the case to federal court pursuant to 28 U.S.C. §§ 1331, 1441
and 1446, on the basis that plaintiffs’ petition alleged violations of their constitutional rights under
42 U.S.C. § 1983. The State defendants move to dismiss plaintiffs’ petition on the grounds that (1)
plaintiffs fail to allege facts establishing a claim against the State defendants; (2) plaintiffs fail to
allege facts showing any personal involvement by the State defendants in the actions complained
of; and (3) the State defendants are entitled to Eleventh Amendment immunity.
II. Legal Standard
Although the State defendants’ motions to dismiss include arguments that plaintiffs’ petition
fails to state a claim upon which relief can be granted, the Court only addresses the arguments based
on Eleventh Amendment immunity. These arguments affect subject matter jurisdiction, as the
“Eleventh Amendment presents a jurisdictional limit on federal courts in civil rights cases against

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Other defendants named in this action are the City of Jennings, Missouri, the City of
Ferguson, Missouri, and St. Louis County, Missouri. Plaintiffs’ petition does not specify which of
the defendants took the actions they complain of.
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states and their employees.” Nix v. Norman, 879 F.2d 429, 431 (8th Cir. 1989); see Murphy v. State
of Ark., 127 F.3d 750, 755 (8th Cir. 1997). Thus, the State defendants’ motions to dismiss are
properly construed as challenging subject matter jurisdiction under Rule 12(b)(1).
“In order to properly dismiss [an action] for lack of subject matter jurisdiction under Rule
12(b)(1), the complaint must be successfully challenged on its face or on the factual truthfulness of
its averments.” Titus v. Sullivan, 4 F.3d 590, 593 (8th Cir. 1993) (citing Osborn v. United States,
918 F.2d 724, 729 n.6 (8th Cir. 1990) (citation omitted)). Here, the State defendants’ motions to
dismiss on Eleventh Amendment grounds asserts a facial challenge to plaintiffs’ petition. Under a
facial challenge to jurisdiction, a court restricts itself to the face of the pleadings, Osborn, 918 F.2d
at 729, n.6, and all of the factual allegations concerning jurisdiction in the complaint are presumed
to be true. See Titus, 4 F.3d at 593 & n.1. The standard for a motion to dismiss under Rule 12(b)(6)
applies equally to a motion to dismiss for lack of subject matter jurisdiction which asserts a facial
challenge under Rule 12(b)(1). See id.; Osborn, 918 F.2d at 729 n.6.
To survive a motion to dismiss pursuant to Rule 12(b)(6) for failure to state a claim upon
which relief can be granted, “a complaint must contain sufficient factual matter, accepted as true,
to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A plaintiff “must include
sufficient factual information to provide the ‘grounds’ on which the claim rests, and to raise a right
to relief above a speculative level.” Schaaf v. Residential Funding Corp., 517 F.3d 544, 549 (8th
Cir. 2008) (citing Twombly, 550 U.S. at 555 & n.3). This obligation requires a plaintiff to plead
“more than labels and conclusions, and a formulaic recitation of the elements of a cause of action
will not do.” Twombly, 550 U.S. at 555.

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III. Discussion
A. State Defendants
The State defendants assert that they are entitled to Eleventh Amendment immunity. The
Eleventh Amendment bars suits against non-consenting states by their own citizens, citizens of
another states, citizens of foreign states, or foreign nations. U.S. Const. amend. XI; Pennhurst State
School and Hospital v. Halderman, 465 U.S. 89, 97-98 (1984). This immunity extends to states and
“arms” of the state, which can include state agencies. See, e.g., Edelman v. Jordan, 415 U.S. 651
(1974); Union Electric Co. v. Missouri Dep’t of Conservation, 366 F.3d 655, 660 (8th Cir. 2004)
(Missouri Department of Conservation was an arm of the State for Eleventh Amendment purposes).
Section 1983 damage claims against individual defendants acting in their official capacities are
likewise barred, either by the Eleventh Amendment or because in these capacities they are not
“persons” within the meaning of § 1983. Murphy, 127 F.3d at 754 (citing Will v. Michigan Dept.
of State Police, 491 U.S. 58 (1989)).
Defendants Nixon and Replogle, who are sued only in their official capacities, argue that
plaintiffs’ claims against them are barred by the Eleventh Amendment, as it prohibits the imposition
of money damages against a state or against state officials in their official capacities, citing Edelman,
415 U.S. at 663. Defendant Missouri State Highway Patrol (“MSHP”) argues it is entitled to
Eleventh Amendment immunity from claims for money damages as an arm or agency of the State
of Missouri, citing Aubuchon v. State of Missouri, 631 F.2d 581, 582 (8th Cir. 1980) (State of
Missouri is not a proper party to an action under § 1983); and Holloway v. Ameristar Casino St.
Charles, Inc., 2007 WL 2199566, at *7 (E.D. Mo. July 21, 2007) (MSHP is a state agency entitled
to Eleventh Amendment immunity).

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In response, plaintiffs concede that the State defendants are not “persons” under § 1983, but
contend the motions to dismiss are moot because the petition does not assert § 1983 claims against
the State defendants. Plaintiffs contend that the petition asserts only state common law actions for
taking and inverse condemnation against the State defendants, and argue that the Court has no
subject matter jurisdiction over the claims and must remand the case to state court. Plaintiffs further
respond that if the Court determines federal subject matter jurisdiction does exist, the State
defendants have waived Eleventh Amendment immunity by removing the case to federal court,
citing Lapides v. Board of Regents of the University System of Georgia, 535 U.S. 613, 624 (2002).
The State defendants reply that the petition specifically asserts claims against them under
§ 1983 and Missouri common law, and that plaintiffs seek damages against all defendants under
§ 1983. Thus, the State defendants argue plaintiffs have alleged a claim arising under the laws of
the United States, federal subject matter jurisdiction exists, and their motions to dismiss are not
moot. The State defendants further reply that their removal of this case does not waive Eleventh
Amendment immunity, as the Supreme Court’s holding in Lapides is limited to the situation where
a state waives its underlying sovereign immunity from suit for common law tort claims in its own
state courts and then removes the suit to federal court, which has not happened here. In support, the
State defendants cite Belkin v. Casino One Corp., 2014 WL 1727896, at **3-4 (E.D. Mo. May 1,
2014); Lacy v. Gray, 2013 WL 3766567, at *3 (E.D. Mo. July 16, 2013); and Johnson v. Board of
Police Commissioners, 2007 WL 1629909, at *3 (E.D. Mo. June 7, 2007).
Plaintiffs’ assertion that they did not plead any federal claims against the State defendants
is belied by a review of the petition, which shows that plaintiffs have asserted § 1983 claims against
the State defendants. The petition alleges that the defendants’ actions, collectively, constitute a
taking of plaintiffs’ property pursuant to the Missouri and United States Constitutions, and that this
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taking without compensation violates the Missouri and United States Constitutions pursuant to
Missouri common law and 42 U.S.C. § 1983. Petition, ¶¶ 19. The prayer for relief seeks judgment
“against all defendants, jointly and severally, for damages in an amount exceeding $25,000 pursuant
to Missouri Common Law and 42 U.S.C. § 1983.” Id. at 4 (emphasis added). The Court therefore
finds plaintiffs’ contention that their petition does not assert § 1983 claims against the State
defendants to be specious.
As a threshold matter, the Court rejects plaintiffs’ argument that the State defendants waived
their Eleventh Amendment immunity by removing the case to federal court. This Court has
previously rejected similar arguments and held that Lapides does not extend to situations where, as
here, the defendants did not waive immunity at the state level. See Belkin, 2014 WL 1727896, at
**3-4; Lacy, 2013 WL 3766567, at *3; Johnson, 2007 WL 1629909, at *3. The undersigned adheres
to these holdings and adopts the well-reasoned decisions of Judges Webber, Sippel and Perry.
Plaintiffs’ § 1983 claims for money damages against defendants Nixon and Replogle, state
officials sued in their official capacity, are barred either by the Eleventh Amendment or because in
these capacities they are not “persons” for § 1983 purposes. See Murphy, 127 F.3d at 754. The
MSHP is an agency of the State of Missouri entitled to Eleventh Amendment immunity. See
Theisen v. Stoddard County, 2014 WL 4229793, at *1 (E.D. Mo. Aug. 26, 2014); Belkin, 2014 WL
1727896, at **2-3; Leith v. State of Mo. Highway Patrol, 2007 WL 869508, at *2 (W.D. Mo. Mar.
20, 2007). Accordingly, plaintiffs’ § 1983 claims for money damages against the MSHP are barred
by the Eleventh Amendment.2 The State defendants’ motions to dismiss on the basis of Eleventh
Amendment immunity should therefore be granted.

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Plaintiffs’ petition does not seek injunctive or declaratory relief against any defendant.
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In addition, the Court lacks subject matter jurisdiction over plaintiffs’ § 1983 claims against
the State defendants because the claims are not ripe. “The ripeness doctrine is aimed at preventing
federal courts, through premature adjudication, from ‘entangling themselves in abstract
disagreements.’” Citizens for Equal Protection v. Bruning, 455 F.3d 859, 863 (8th Cir. 2006)
(quoting Thomas v. Union Carbide Agr. Prods. Co., 473 U.S. 568, 580 (1985)). “[T]he question of
ripeness may be considered on a court’s own motion.” National Park Hospitality Ass’n v.
Department of Interior, 538 U.S. 803, 808-09 (2003).
Under both the United States and Missouri Constitutions, private property may not be taken
or damaged for public use without just compensation. U.S. Const. amend V, Mo. Const. Art. I, § 26.
The Supreme Court has held that a property owner may not bring a federal claim for violation of the
Fifth Amendment’s Just Compensation Clause until it has exhausted any available state procedure
for seeking just compensation, and been denied it. Williamson Cnty. Reg’l Planning Comm’n v.
Hamilton Bank of Johnson City, 473 U.S. 172, 195 (1985); see Snaza v. City of St. Paul, Minn., 548
F.3d 1178, 1181-82 (8th Cir. 2008); Kottschade v. City of Rochester, 319 F.3d 1038, 1040 (8th Cir.
2003). This is because “a property owner has not suffered a violation of the Just Compensation
Clause until the owner has unsuccessfully attempted to obtain just compensation through the
procedures provided by the State[.]” Williamson County, 473 U.S. at 195. The principle announced
in Williamson County is a prudential ripeness requirement. Suitum v. Tahoe Reg’l Planning
Agency, 520 U.S. 725, 733-34 (2010).
Missouri has an adequate procedure pursuant to Article I, Section 26 of the Missouri
Constitution, by which property owners may seek just compensation in state circuit courts. See State

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ex rel. State Highway Comm’n v. Swink, 537 S.W.2d 556, 558 (Mo. 1976) (en banc).3 Under
Missouri law, “Inverse condemnation is the proper remedy whenever a condemning authority takes
or damages private property for a public use without just compensation.” Heins Implement Co. v.
Missouri Highway & Transp. Comm’n, 859 S.W.2d 681, 693 n.18 (Mo. 1993) (en banc) (citing Mo.
Const., art. I, § 26; Swink, 537 S.W.2d at 558), abrogated in part on other grounds by Southers v.
City of Farmington, 263 S.W.3d 603, 614 n.13 (Mo. 2008) (en banc).
Plaintiffs do not plead any facts to show that they have filed an inverse condemnation action
in the state courts and just compensation has been refused. Thus, plaintiffs have failed to plead facts
showing that their Fifth Amendment claim under § 1983 is ripe for determination by this Court, and
it will be dismissed for lack of subject matter jurisdiction. Cf. Remmen v. City of Ashland, 2009
WL 3020151, at *4 (D. Neb. Sept. 18, 2009) (dismissing § 1983 just compensation claim for lack
of subject matter jurisdiction where plaintiffs did not plead any facts to establish ripeness), aff’d,
373 F. App’x 644 (8th Cir. 2010).
The Court also lacks subject matter jurisdiction over plaintiffs’ state law claims against the
State defendants. A state common law inverse condemnation action may be brought in federal court,
but only where the traditional requirements of federal diversity jurisdiction are met. See, e.g.,
Vulcan Materials Co. v. City of Tehuacana, 238 F.3d 382, 385-86 (5th Cir. 2001); SK Finance SA
v. La Plata Cnty. Bd. of Cnty. Comm’rs, 126 F.3d 1272, 1276 (10th Cir. 1997). The parties to this

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“Art. I, sec. 26, Mo. Const., provides in part: ‘That private property shall not be taken or
damaged for public use without just compensation. Such compensation shall be ascertained by a
jury or board of commissioners of not less than three freeholders, in such manner as may be
provided by law; and until the same shall be paid to the owner, or into court for the owner, the
property shall not be disturbed or the proprietary rights of the owner therein divested.’ This
constitutional provision is self-enforcing.” State ex rel. State Highway Comm’n v. Swink, 537
S.W.2d 556, 558 (Mo. 1976) (en banc).
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action are not of diverse citizenship and there is no allegation that the amount in controversy exceeds
$75,000, see 28 U.S.C. § 1332(a), so diversity jurisdiction does not exist. Further, Williamson
County’s exhaustion requirement cannot be satisfied by simultaneously bringing federal and state
takings claims. See Samaad v. City of Dallas, 940 F.2d 925, 934 (5th Cir. 1991), abrogated in part
on other grounds by Williamson County, 473 U.S. at 195. Finally, there can be no supplemental
jurisdiction over plaintiffs’ state law claims under 28 U.S.C. § 1367, because the federal claims that
provided the sole basis of supplemental jurisdiction are not ripe. Id.; Vulcan, 238 F.3d at 385.
As a result, the State defendants’ motions to dismiss plaintiffs’ § 1983 claims must be
granted for lack of subject matter jurisdiction, and the Court does not reach the State defendants’
arguments that plaintiffs’ petition fails to state a claim upon which relief can be granted.
B. Municipal and County Defendants
Remaining in this action are plaintiffs’ § 1983 and state law taking and inverse condemnation
claims against the municipal and county defendants. Defendant City of Ferguson has filed a motion
to dismiss plaintiffs’ petition, but with its consent plaintiffs were granted an extension of time to
respond to the motion to dismiss, until such time as the City of Jennings and St. Louis County are
served with process and file their answers or motions to dismiss. The Court therefore does not
address the City of Ferguson’s motion to dismiss.
On its own motion, the Court concludes that plaintiffs’ § 1983 claims against the municipal
and county defendants are not ripe for the same reason that their claims against the State defendants
are not ripe:

Plaintiffs have not alleged that they exhausted the state procedures for just

compensation available to them. See Williamson County, 473 U.S. at 195. The Court does not have
diversity or supplemental jurisdiction over plaintiffs’ state law claims against the municipal and
county defendants for the same reasons discussed above with respect to the State defendants. The
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Court will therefore dismiss plaintiffs’ § 1983 claims against the municipal and county defendants
for lack of subject matter jurisdiction and remand this action to state court.
IV. Conclusion
For the foregoing reasons, the State defendants’ motion to dismiss plaintiffs’ § 1983 claims
against them on the basis of Eleventh Amendment immunity should be granted, as the Court lacks
subject matter jurisdiction over those claims. In addition, all of plaintiffs’ claims under § 1983 must
be dismissed for lack of subject matter jurisdiction because they are not ripe. The Court does not
have diversity jurisdiction over plaintiffs’ state law claims for taking and inverse condemnation, and
cannot exercise supplemental jurisdiction over those claims because the federal claims on which
supplemental jurisdiction would be based are not ripe. As a result, the state law claims in this matter
must be remanded to the state court from which the case was removed.4
Accordingly,
IT IS HEREBY ORDERED that defendants Nixon, Replogle, and Missouri State Highway
Patrol’s Motions to Dismiss, construed as motions pursuant to Rule 12(b)(1), Fed. R. Civ. P., are
GRANTED as to plaintiffs’ claims under 42 U.S.C. § 1983, and those claims are DISMISSED for

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At the conclusion of plaintiffs’ opposition to the State defendants’ motions to dismiss,
plaintiffs ask for leave to file an amended complaint if the Court concludes that federal jurisdiction
exists and that they have failed to state a claim. As neither of these prerequisites to plaintiffs’
request has occurred, the Court deems the request moot. Further, although leave to amend is
normally to be freely granted, see Fed. R. Civ. P. 15(a)(2), the Eighth Circuit has held that a district
court properly denies leave to amend where a plaintiff does not submit a motion for leave to amend,
but merely concludes his response to the defendant’s motion to dismiss with a request for leave to
amend and does not offer a proposed amended complaint or even the substance of the proposed
amendment. See Minneapolis Firefighters’ Relief Ass’n v. MEMC Electronic Materials, Inc., 641
F.3d 1023, 1030 (8th Cir. 2011); In re 2007 Novastar Financial, Inc., Secs. Litig., 579 F.3d 878, 88485 (8th Cir. 2009).
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lack of subject matter jurisdiction based on Eleventh Amendment immunity and lack of ripeness.
[Docs. 5,7,9]
IT IS FURTHER ORDERED that on the Court’s own motion, plaintiffs’ claims against
defendants City of Ferguson, City of Jennings, and St. Louis County under 42 U.S.C. § 1983 are
DISMISSED for lack of ripeness.
IT IS FURTHER ORDERED that defendant City of Ferguson’s Motion to Dismiss is
DENIED as moot, without prejudice. [Doc. 18]
IT IS FURTHER ORDERED that plaintiffs’ state law claims will be remanded to the
Circuit Court for the County of St. Louis, State of Missouri, from which this case was removed.
An appropriate order of partial dismissal and remand will accompany this Memorandum and
Order.

CHARLES A. SHAW
UNITED STATES DISTRICT JUDGE

Dated this 27th day of February, 2015.

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