Croy et al v. Ravalli County et al

Filing 21

ORDER denying as moot 9 Motion to Dismiss for Failure to State a Claim; granting 11 Motion for Judicial Notice. The Second Amended Complaint 19 is accepted as filed. The case caption is amended to include Plaintiff Paula Jobe a/k/a Paula Kurtz. Signed by Judge Donald W. Molloy on 8/20/2019. (ASG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION

FILED
AUG 20 2019
Clerk, u S
District Of M Courts

Missou/a

NICOLEL. CROY; PAULA JOBE
a/k/a PAULA KURTZ; JEFFREY D.
COLLINS; CAMJ. COLLINS; SHAEN
D . MCELRAVY; JODY MCELRAVY;
KAREN M. HAYWARD; RONALD C.
HAYWARD; and BRAD
MAGRUDER,
Plaintiffs,
vs.
RAVALLI COUNTY, in its official
capacity; BOARD OF
COMMISSIONERS OF RAVALLI
COUNTY, in its official capacity; LEE
E. FOSS; FOSS REALTY, INC., a
Montana Profit Corporation;
WESTERN MONTANA
EXCAVATION LLC, a Montana
Limited Liability Company;
SUNNYSIDE ORCHARDS, LLC, a
Foreign Limited Liability Corporation;
STARLIGHT INTERESTS, LLC, a
Georgia Limited Liability Company;
and JOHN DOES 1-15,
Defendants.

RAVALLI COUNTY, in its official
capacity, and BOARD OF
COMMISSIONERS OF RAVALLI
COUNTY, in its official capacity
Cross-Claimants,
vs.

CV 19-77- M-DWM

ORDER

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LEE E. FOSS; FOSS REALTY, INC., a
Montana Profit Corporation;
STARLIGHT INTERESTS, LLC, a
Georgia Limited Liability Company;
SUNNYSIDE ORCHARDS, LLC; a
Foreign Limited Liability Corporation;
WESTERN MONTANA
EXCAVATION LLC, a Montana
Limited Liability Company; and JOHN
DOES 1-15,
Cross-Defendants.

On April 26, 2019, Plaintiffs, a group of landowners in Ravalli County, sued
the County ("Public Defendants") as well as one individual and four business
entities ("Private Defendants") in a road dispute, alleging fifteen causes of action
under both federal and state law. (Doc. l.) Plaintiffs amended their complaint as a
matter of right on May 17, 2019. (Doc. 4); Fed. R. Civ. P. 15(a)(l)(A). The Public
Defendants answered, bringing a cross-claim against the Private Defendants.
(Doc. 7.) Defendants Sunnyside Orchards, LLC and Starlight Interests, LLC
answered both the Amended Complaint (Doc. 8), and the Public Defendants'
Cross-Claims, (Doc. 14). Instead of answering, Defendants Lee E. Foss and Foss
Realty, Inc. (collectively "Foss Defendants") filed motions to dismiss both the
Amended Complaint, (Doc. 9), and the Public Defendant's Cross-Claims, (Doc.
15). The Foss Defendants also filed a motion for judicial notice. (Doc. 11.)

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On August 5, 2019, Plaintiffs sought and received an extension of time to
respond to the Foss Defendants' motion to dismiss the Amended Complaint.
(Docs. 17, 18.) Instead of responding, Plaintiffs filed a Second Amended
Complaint on August 13, 2019. (Doc. 19.) No party objects to the filing. (See id.;
Doc. 20.) The Second Amended Complaint adds to and clarifies certain factual
allegations, (see e.g. Doc. 19 at ,r,r 10, 14), but maintains the same causes of action,
(see id. at ,r,r 57- 121 ). Pursuant to the consent of the other parties and the liberal

pleading standard outlined in Federal Rule of Civil Procedure 15, the amended
pleading is properly filed. See Fed. R. Civ. P. 15(a) ("The court should freely give
leave when justice so requires."). As a result, the First Amended Complaint, (Doc.
4), is no longer the operative pleading and the Foss Defendants' pending motion to
dismiss that pleading, (see Doc. 9), is moot.
While the Foss Defendants' motion for judicial notice indicates Plaintiffs
oppose the motion, (see Doc. 11 at 3), Plaintiffs did not file a responsive pleading.
That failure is "deemed an admission that the motion is well-taken." L.R.
7.l(d)(l)(B)(ii). Exhibits A through P (attached to Doc. 10) are properly noticed
as official records that have been filed with and/or recorded by the Ravalli County
Clerk and Recorder. Fed. R. Evid. 20l(b)(2); see Lee v. City ofLos Angeles, 250
F .3d 668, 689 (9th Cir. 2001 ).

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Accordingly, IT IS ORDERED that the Second Amended Complaint (Doc.
19) is accepted as filed. The case caption is amended as reflected above to include
Plaintiff Paula Jobe a/k/a Paula Kurtz.
IT IS FURTHER ORDERED that the Foss Defendants' motion to dismiss
(Doc. 9) is DENIED as MOOT. The Foss Defendants may refile their motion, or
answer, within the 21-days provided by Rule 12. See Fed. R. Civ. P.
12(a)(l )(A)(i).
IT IS FURTHER ORDERED that the Foss Defendants' motion for judicial
notice (Doc. 11) is GRANTED. Judicial notice is taken of the following
documents (attached as Exhibits A through P to Doc. 10):
A. Quit Claim Deed recorded May 25, 2018, as Document No. 721085,
Records of Ravalli County;
B. Warranty Deed recorded January 20, 2017, as Document No.
706503, Records ofRavalli County;
C. Notice of Purchaser's Interest recorded October 7, 2016, as
Document No. 703016, Records of Ravalli County;
D. Declaration of Covenants, Road Easements, and Irrigation
Easements for Sunnyside Orchards LLC, recorded October 7, 2016, as
Document No. 703015, Records of Ravalli County;
E. Warranty Deed recorded March 25, 1999, at Book 229, Page 751,
Records of Ravalli County;
F. Warranty Deed recorded August 8, 1989, at Book 186, Page 818,
Records of Ravalli County;
G. Deed recorded June 2, 1981, at Book 159, Page 239, Records of
Ravalli County;

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H. Original and Amended Plats of Sunnyside Orchards, recorded in the
Records of Ravalli County (1909, 1913), and referenced throughout
Plaintiffs' Amended Complaint;

I. Recorded Plat of Townsite of Bitter Root (Nov. 16, 1909);
J. Certificate of Survey No. 4590, recorded 1991, Records of Ravalli
County;
K. Certificate of Survey No. 541197-TR, Records of Ravalli County;
L. Certificate of Survey No. 555816-TR, Records of Ravalli County;
M . Certificate of Survey No. 696170-TR, Records of Ravalli County;
N. Ravalli County Permanent File No. 7957;
0 . Abandonment Petition filed with Ravalli County by certain Plaintiffs
and others in February 2017, referenced throughout Plaintiffs'
Amended Complaint;
P. Amended Abandonment Petition filed with Ravalli County by
certain Plaintiffs and others in March 2017, referenced throughout
Plaintiffs' Amended Complaint.
These documents do not need to be refiled.

'-

DATED this ").P day of August, 2019.

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