Reints v. City of Rapid City, South Dakota et al

Filing 47

ORDER granting 12 Motion to Dismiss for Failure to State a Claim; granting in part and denying in part 23 Motion to Extend Deadlines; denying as moot 34 Motion to Amend/Correct; denying as moot 40 Motion for Hearing; granting in part and d enying in part 42 Motion to Amend/Correct; granting 20 Motion to Dismiss for Failure to State a Claim; denying 17 Motion to Dismiss Party; denying 15 Motion to Dismiss. Signed by Chief Judge Jeffrey L. Viken on 9/24/14. (SB) Modified on 9/24/2014 to include Docket 15. (SB).

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
JOHN REINTS,
Plaintiff,
v.
CITY OF RAPID CITY, SOUTH DAKOTA;
TRAVELERS INSURANCE COMPANIES,
INC; JASON GREEN, individually & in his
official capacity; BRAD SOLON,
individually & in his official capacity;
JOEL LANDEEN, individually & in his
official capacity; WADE NYBERG,
individually & in his official capacity;
ANDY CHLEBECK, individually & in his
official capacity; RON SASSO, individually
and in his official capacity;
JANE DOE, aka “CHRISTINE O’BRIEN,”
individually; KEITH L’ESPERANCE,
individually & in his official capacity;
JIM SHAW, in his former official capacity;
ALAN HANKS, in his former official
capacity; SAM KOOIKER, in his official
capacity; BONNY PETERSON, in her
official capacity; DAVE DAVIS, in his
official capacity; JERRY WRIGHT, in his
official capacity; GARY BROWN, in his
official capacity; CHARITY DOYLE, in her
official capacity; STEVE LAURENTI, in his
official capacity; RITCHIE NORDSTROM,
in his official capacity; JORDON MASON,
in his official capacity;
JOHN ROBERTS, in his official capacity;
PAULINE SUMPTON, in her official
capacity; JANE DOE, aka “CONNIE,”
in her official capacity; GARY GARNER,
in his official capacity; BARB GARCIA,
in her official capacity; JEFF BARBIER,

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CIV. 13-0543-JLV

ORDER

in his official capacity;
BRETT LIMBAUGH, in his official
capacity; JANE & JOHN DOES 3-25,
individually & in their official capacities;
Defendants.

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INTRODUCTION
On June 7, 2013, plaintiff John Reints, appearing pro se, filed a multiple
count complaint against the defendants. (Docket 1). On October 17, 2013,
defendant Travelers Insurance Companies, Inc., (“Travelers Insurance”), filed a
motion to dismiss because no company by that name exists. (Docket 12). The
Travelers Companies, Inc., (“The Travelers Companies”), which has not been
served with the summons and complaint and which is not a defendant, joined
in the motion on the basis the complaint fails to state a claim upon which relief
can be granted. Id. Mr. Reints opposes The Travelers Companies’ motion to
dismiss. (Docket 25).
On October 24, 2013, defendant City of Rapid City (“City”) and a number
of defendants designated as the “Specially Appearing Defendants” filed a
motion to dismiss for insufficiency of service of process. (Dockets 15 & 17).
Mr. Reints opposes the motions. (Dockets 28 & 30). The same day, a number
of defendants designated as “Official Capacity Defendants” filed a motion to
dismiss the claims against them in their official capacity. (Docket 20). Mr.
Reints filed a response agreeing to dismiss claims against all defendants in
their official capacity, while preserving claims against certain defendants in
their individual capacity. (Docket 29).
2

On November 5, 2013, Mr. Reints filed a motion for an extension of time
to perfect service of process on a number of defendants. (Docket 23). Those
defendants are designated as the “Individual Capacity Defendants,” the City,
and Jane Doe, a/k/a Christine O’Brien (“Ms. O’Brien”). (Docket 23 at p. 2).
The Travelers Companies, City, and Individual Capacity Defendants oppose the
motion. (Dockets 32 & 33).
On December 1, 2013, Mr. Reints filed a motion for leave to correct
misnomer. (Docket 34). The Travelers Companies oppose the motion. (Docket
38).
On January 14, 2014, while the above motions were pending, Mr. Reints
filed a motion for leave to file an amended complaint. (Docket 42). The
proposed amended complaint accompanied the motion. (Docket 42-1). The
Travelers Companies, City, and Specially Appearing Defendants oppose the
motion. (Dockets 43 & 45). Mr. Reints also filed a motion for a hearing on all
pending motions. (Docket 40).
For the reasons stated below, The Travelers Companies’ motion to
dismiss (Docket 12) is granted; the City’s motion to dismiss on the basis of
insufficiency of service of process (Docket 15) is denied; the Specially Appearing
Defendants’ motion to dismiss for insufficiency of service of process (Docket 17)
is denied; the Official Capacity Defendants’ motion to dismiss claims against
these defendants in their official capacity (Docket 20) is granted; plaintiff’s

3

motion for an extension of time to perfect service of process (Dockets 23) is
granted in part and denied in part; plaintiff’s motion for leave to correct
misnomer (Docket 34) is denied as moot; plaintiff’s motion for leave to file an
amended complaint (Docket 42) is granted in part and denied in part; and
plaintiff’s motion for a hearing (Docket 40) is denied as moot.
STANDARD OF REVIEW
A pro se complaint must be liberally construed. “[A] pro se complaint,
however inartfully pleaded, must be held to less stringent standards than
formal pleading drafted by lawyers and can only be dismissed for failure to
state a claim if it appears beyond doubt that the plaintiff can prove no set of
facts in support of his claim which would entitle him to relief.” Estelle v.
Gamble, 429 U.S. 97, 106 (1976) (internal citations and quotation marks
omitted). Pro se pleadings are to be construed liberally, but pro se litigants are
still expected to comply with procedural and substantive law. Burgs v. Sissel,
745 F.2d 526, 528 (8th Cir. 1984). “While a court generally affords pro se
filings a liberal construction, a litigant’s pro se status does not excuse him from
reading the Federal Rules of Civil Procedure.” Jiricko v. Moser & Marsalek,
P.C., 184 F.R.D. 611, 615 (E.D. Mo. 1999), aff’d, 187 F.3d 641 (8th Cir. 1999)
(referencing McNeil v. United States, 508 U.S. 106, 113 (1993) (“[W]e have
never suggested that procedural rules in ordinary civil litigation should be
interpreted so as to excuse mistakes by those who proceed without counsel.”).

4

“[P]ro se litigants must set [a claim] forth in a manner which, taking the
pleaded facts as true, states a claim as a matter of law.” Stringer v. St. James
R-1 Sch. Dist., 446 F.3d 799, 802 (8th Cir. 2006). “A pro se [complaint] should
be ‘interpreted liberally and . . . should be construed to encompass any
allegation stating federal relief.’ ” Bracken v. Dormire, 247 F.3d 699, 704 (8th
Cir. 2001) (citing White v. Wyrick, 530 F.2d 818, 819 (8th Cir.1976)). “A
remedial interpretation of this kind often involves supplying legal or factual
statements that the [complaint] should contain, or relaxing the rule that
requires such statements, where it reasonably appears that they were omitted
merely for lack of legal know-how.” Id.
“(A) complaint should not be dismissed for failure to state a claim unless
it appears beyond doubt that the plaintiff can prove no set of facts in support of
his claim which would entitle him to relief.” Fusco v. Xerox Corp., 676 F.2d
332, 334 (8th Cir. 1982) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)
(footnote omitted)). “Where 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., Inc., 524 F.3d 866, 870 (8th Cir.
2008).

5

DISCUSSION
THE COMPLAINT
Plaintiff’s complaint is forty-four pages in length, contains numerous
conclusory statements of law, and far exceeds the boundaries contemplated by
Fed. R. Civ. P. 8(a)(2).1 (Docket 1). From the complaint, the court identifies the
following claims:
1.

The City has an unconstitutional abatement public
nuisance ordinance which its employees carry out in
an unconstitutional manner;

2.

The City and its employees carried out the public
nuisance ordinance in an unequal and unfair manner
when comparing plaintiff to other members of the
community;

3.

The City unconstitutionally and unlawfully removed a
tree, vehicle, weeds, snow and ice, and other items of
plaintiff’s personal property;

4.

Joel Landeen of the City Attorney’s Office
unconstitutionally brought criminal proceedings
against plaintiff for failure to abate a public nuisance;

5.

The City unconstitutionally and unlawfully placed
assessments against plaintiff’s real property under its
public nuisance ordinance; and

6.

The City, through its employees, engaged in a civil conspiracy with
Ms. O’Brien of Travelers Insurance to obstruct plaintiff’s rights of

1

Under Rule 8(a)(2), a “pleading that states a claim for relief must contain
. . . a short and plain statement of the claim showing that the pleader is
entitled to relief.” Fed. R. Civ. P. 8(a)(2). The purpose of this Rule is to give a
defendant fair notice of plaintiff’s claims and the grounds upon which those
claims rest. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).
6

free speech and access to redress of his complaints against the
City and its employees.
(Docket 1). Mr. Reints alleges the defendants violated his rights under the
First, Fifth, and Fourteenth Amendments to the United States Constitution,
42 U.S.C. § 1983, the corresponding sections of the South Dakota
Constitution, and state law. Id. Mr. Reints seeks compensatory damages,
punitive damages, and equitable relief. Id. at p. 44.
THE TRAVELERS COMPANIES
The Travelers Companies filed a motion to dismiss the complaint on two
grounds:
1.

No company by the name of “Travelers Insurance
Companies, Inc.,” exists; and

2.

Even if the claim is against The Travelers Companies,
the complaint fails to state a claim upon which relief
can be granted.

(Docket 12). The motion is supported by defense counsel’s corporate disclosure
statement under Fed. R. Civ. P. 7.1(a)(2). (Docket 22). In an affidavit in
support of the motion to dismiss, the Deputy Corporate Secretary of The
Travelers Companies states:
1.

The Travelers Companies . . . is a holding company
organized under the laws of the state of Minnesota.
(Docket 14 at ¶ 3);

2.

The Travelers Companies . . . does not underwrite, sell or
provide insurance, nor does it adjust insurance claims.
Id. at ¶ 4;

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3.

St. Paul Fire and Marine Insurance Company (“St. Paul”)
is a subsidiary of The Travelers Companies . . . . Id. at
¶ 7;

4.

St. Paul issued the policy [to the City, Exhibit A (Docket
14-1)] . . . . Id. at ¶ 8;

5.

Any investigation on the part of claim adjusters with
respect to any claim under said policy was made on
behalf of St. Paul. Id. at ¶ 9; and

6.

St. Paul remains liable for any claims determined to be
due on any policy issued . . . as a result of litigation
arising out of such policies, and can satisfy any
obligations under the subject policy, if required by this
Court. Id. at ¶ 10.

The Travelers Companies moves to dismiss plaintiff’s complaint under Fed. R.
Civ. P. 12(b). (Docket 12 at p. 2). Rule 12 provides in part:
(b)

. . . a party may assert the following defenses by motion:
(1)
lack of subject-matter jurisdiction;
....
(6)
failure to state a claim upon which relief
can be granted . . . .
A motion asserting any of these defenses must be made before
pleading if a responsive pleading is allowed. . . . No defense or
objection is waived by joining it with one or more other
defenses or objections in a responsive pleading or in a motion.

Fed. R. Civ. P. 12(b)(1) & (6).
“In order to properly dismiss 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) (internal citation omitted). “In a facial challenge to jurisdiction,
8

all of the factual allegations concerning jurisdiction are presumed to be true
and the motion [to dismiss] is successful if the plaintiff fails to allege an
element necessary for subject matter jurisdiction.” Id. (internal citation
omitted). While considering a Rule 12(b)(1) motion to dismiss for lack of
subject matter jurisdiction, the court must “accept all factual allegations in the
pleadings as true and view them in the light most favorable to the nonmoving
party.” Great Rivers Habitat Alliance v. Federal Emergency Management
Agency, 615 F.3d 985, 988 (8th Cir. 2010). “The burden of proving federal
jurisdiction, however, is on the party seeking to establish it, and this burden
may not be shifted to the other party.” Id. (internal quotation marks and
brackets omitted).
“While a complaint attacked by a Rule 12(b)(6) motion to dismiss does
not need detailed factual allegations, . . . a plaintiff’s obligation to provide the
grounds of his entitlement to relief requires more than labels and conclusions,
and a formulaic recitation of the elements of a cause of action will not do . . . .
Factual allegations must be enough to raise a right to relief above the
speculative level . . . .” Twombly, 550 U.S. at 555 (internal citations, quotation
marks and brackets omitted). The “plausibility standard” at the pleading stage
requires a showing greater than the mere possibility of misconduct yet less
than the probability of misconduct. Id. at 556-58. To survive a Rule 12(b)(6)
motion to dismiss for failure to state a claim upon which relief may be granted,
“a complaint must contain sufficient factual matter, accepted as true, to ‘state

9

a claim to relief that is plausible on its face.’ . . . A claim has facial plausibility
when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 570)
(other internal citation omitted). The Court in Iqbal expounded on the
“plausibility standard” articulated in Twombly:
To survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to “state a claim to relief that is
plausible on its face.” A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct
alleged. The plausibility standard is not akin to a “probability
requirement,” but it asks for more than a sheer possibility that a
defendant has acted unlawfully. Where a complaint pleads facts that
are “merely consistent with” a defendant’s liability, it “stops short of
the line between possibility and plausibility of ‘entitlement to
relief.’ ” . . .
[T]he tenet that a court must accept as true all of the allegations
contained in a complaint is inapplicable to legal conclusions.
Threadbare recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice. . . . Rule 8 marks a
notable and generous departure from the hyper-technical,
code-pleading regime of a prior era, but it does not unlock the doors
of discovery for a plaintiff armed with nothing more than conclusions
. . . . [O]nly a complaint that states a plausible claim for relief
survives a motion to dismiss. Determining whether a complaint
states a plausible claim for relief will . . . be a context-specific task
that requires the reviewing court to draw on its judicial experience
and common sense. But where the well-pleaded facts do not permit
the court to infer more than the mere possibility of misconduct, the
complaint has alleged-but it has not “show[n]”—“that the pleader is
entitled to relief.”
556 U.S. at 678-79 (internal citations omitted). See also Taxi Connection v.
Dakota, Minnesota & E. R.R. Corp., 513 F.3d 823, 826 (8th Cir. 2008) (“In
10

analyzing a 12(b)(6) motion, this court assumes all factual allegations in the
complaint are true, but the complaint must contain sufficient facts, as opposed
to mere conclusions, to satisfy the legal requirements of the claim to avoid
dismissal.”) (internal quotation marks omitted). “A motion to dismiss should be
granted if it appears beyond doubt that the plaintiff can prove no set of facts
which would entitle him to relief.” Id.
Mr. Reints’ complaint must be dismissed for lack of subject matter
jurisdiction and because it fails to state a claim upon which relief can be
granted against The Travelers Companies. The court is not required to state
findings of fact or conclusions of law when ruling on a Rule 12 motion. Fed. R.
Civ. P. 52(a)(3). However, in fairness to the parties, the court will set forth its
reasons for granting The Travelers Companies’ motion to dismiss.
For purposes of evaluating defendant’s motion, the court will assume all
factual allegations in plaintiff’s complaint are true. The facts related to The
Travelers Companies’ motion to dismiss are as follows:
Christine O’Brien, in her first contact with Reints, by email, told
Reints not to discuss the matters of harm done him and his claims
with anyone but her. (Docket 1 at ¶ 119);
Her statement was clearly intended to intimidate and isolate Reints,
and to prevent him from seeking or benefiting [sic] from legal counsel
or exercising his First Amendment rights in relation to his treatment
by the City and the conspiring City officers and agents. Id.;
O’Brien joined in the conspiracy to chill and prevent the exercise of
Reints’ First Amendment rights and to punish and retaliate against
Reints for his attempts to exercise said rights. Id. at ¶ 120; and
11

O’Brien acted in a fully-adversary manner, and in violation of SDCL
§ 58-33-67(1) and other provisions of SDCL § 58, in refusing to
answer Reints’ reasonable questions, in her contacts with Reints
generally, in falsely telling the City Risk Manager that Reints had
refused communication with her, and in reporting to the City that
Reints’ claims had no basis. Id. at ¶ 123.
In essence, plaintiff alleges Keith L’Esperance, as risk manager for the City,
and Ms. O’Brien, as a claims adjuster for The Travelers Companies, engaged in
a civil conspiracy to violate Mr. Reints’ First Amendment rights.
“To prove a § 1983 conspiracy claim against a particular defendant, the
plaintiff must show: that the defendant conspired with others to deprive him
. . . of a constitutional right; that at least one of the alleged co-conspirators
engaged in an overt act in furtherance of the conspiracy; and that the overt act
injured the plaintiff.” Askew v. Millerd, 191 F.3d 953, 957 (8th Cir. 1999). “In
order to prove the existence of a civil rights conspiracy under § 1985(3), the
[plaintiff] must prove: (1) that the defendants did ‘conspire,’ (2) ‘for the purpose
of depriving, either directly or indirectly, any person . . . of equal protection of
the laws, or equal privileges and immunities under the laws,’ (3) that one or
more of the conspirators did, or caused to be done, ‘any act in furtherance of
the object of the conspiracy,’ and (4) that another person was ‘injured in his
person or property or deprived of having and exercising any right or privilege of
a citizen of the United States.’ ” Larson by Larson v. Miller, 76 F.3d 1446,
1454 (8th Cir. 1996) (citing 42 U.S.C. § 1985(3)).

12

“To plead conspiracy, a complaint must allege specific facts suggesting
that there was a mutual understanding among the conspirators to take actions
directed toward an unconstitutional end.” Duvall v. Sharp, 905 F.2d 1188,
1189 (8th Cir. 1990). “[T]he plaintiff is additionally required to prove a
deprivation of a constitutional right or privilege in order to prevail on a § 1983
civil conspiracy claim.” Askew, 191 F.3d at 957. “[I]t remains necessary to
prove an actual deprivation of a constitutional right; a conspiracy to deprive is
insufficient . . . [w]ithout a deprivation of a constitutional right or privilege, [the
defendant] has no liability under § 1983.” Id. (citing Villanueva v. McInnis, 723
F.2d 414, 416 (5th Cir. 1984)).
Even if the court assumes Mr. L’Esperance and Ms. O’Brien conspired
with each other, there was no constitutional right violated in their relationship
with Mr. Reints. All the two defendants did was instruct the Mayor, City
Council members, and the City’s staff to not discuss Mr. Reints’ claim, or
resolution of any claim, with him. Rather, that task should be left to Ms.
O’Brien as the claims representative of the insurance company providing
coverage to the City.2 Regardless of how Mr. Reints perceives this directive,

2

St. Paul issued policy number GP06301538 to the City for the time
period beginning January 1, 2010, and ending January 1, 2011. (Docket 421). This company is a subsidiary of The Travelers Companies. (Docket 42 at
¶ 7).
13

there is no First Amendment right involved.3 There is no unconstitutional
conduct in a risk manager and a claims adjuster directing an insured, its
elected officials, and its staff to not engage in any discussion with a claimant
about the substance of a potential claim.
Before resolving The Travelers Companies’ motion to dismiss, the court
must address two additional matters. First, Mr. Reints seeks to correct his
initial error in identification through the motion to correct a misnomer.
(Docket 34). The Travelers Companies argue the motion is futile because the
complaint fails to state a claim against The Travelers Companies. (Docket 38
at p. 2). Additionally, Mr. Reints moves to file an amended complaint. (Docket
42). The Travelers Companies resist permitting the filing of an amended
complaint for the reasons stated in its motion to dismiss. (Docket 43).
Motions to amend pleadings are governed by Fed. R. Civ. P. 15. The
rule provides “a party may amend its pleading only with the opposing
party’s written consent or the court’s leave. The court should freely give
leave when justice so requires.” Fed. R. Civ. P. 15(a)(2). Leave to amend
pleadings should be denied only “in those limited circumstances in which

3

Mr. Reints also alleges Ms. O’Brien violated SDCL § 58-33-67(1).
(Dockets 1 at ¶ 123; 24 at p. 7). That section prohibits unfair or deceptive
practices by an insurance company when dealing with its insured. The South
Dakota Division of Insurance establishes the remedy for a violation of § 58-3367. See SDCL § 58-33-68. There is no “private right of action[]” granted to Mr.
Reints. SDCL § 58-33-69.
14

undue delay, bad faith on the part of the moving party, futility of the
amendment, or unfair prejudice to the non-moving party can be
demonstrated.” Roberson v. Hayti Police Department, 241 F.3d 992, 995 (8th
Cir. 2001) (internal citations omitted). “If the underlying facts or
circumstances relied upon by a plaintiff may be a proper subject of relief, [he]
ought to be afforded an opportunity to test [his] claim on the merits.” Foman v.
Davis, 371 U.S. 178, 182 (1962). “[A] motion to amend should be denied on
the merits ‘only if it asserts clearly frivolous claims or defenses.’ ” Becker v.
University of Nebraska at Omaha, 191 F.3d 904, 908 (8th Cir. 1999) (citing
Gamma-10 Plastics, Inc. v. American President Lines, Ltd., 32 F.3d 1244, 1255
(8th Cir. 1994)). “Futility is a valid basis for denying leave to amend.” United
States ex rel. Roop v. Hypoguard USA, Inc., 559 F.3d 818, 822 (8th Cir. 2009).
The proposed amended complaint identifies Ms. O’Brien as a
representative of The Travelers Companies. (Docket 42-1 at ¶ 117). However,
the essence of plaintiff’s claim against The Travelers Companies is the same
claim asserted in the original complaint. Compare Docket 42 at ¶¶ 115-126 to
Docket 42-1 at ¶¶ 117-128. The allegations in the proposed amended
complaint are the same allegations which the court concluded as a matter of
law do not state a claim upon which relief can be granted. As it relates to The
Travelers Companies, plaintiff’s amendment would be futile because the
claimed “facts or circumstances relied upon by [the] plaintiff [are not] a proper
subject of relief . . . .” Foman, 371 U.S. at 182.
15

The Travelers Companies’ motion to dismiss (Docket 12) is granted.
Plaintiff’s motion to correct a misnomer (Docket 34) is denied as moot.
Plaintiff’s motion to file an amended complaint (Docket 42), as that motion
relates to The Travelers Companies, is denied.
INSUFFICIENCY OF PROCESS MOTIONS
The City and Specially Appearing Defendants filed motions to dismiss the
complaint on the basis of insufficiency of service of process. (Dockets 15 & 17).
Mr. Reints opposes the motions. (Dockets 28 & 30). In addition, Mr. Reints
filed a motion for an extension of time to perfect service of process on a number
of defendants. (Docket 23). Those defendants are the Individual Capacity
Defendants, the City, and Jane Doe, a/k/a Christine O’Brien (“Ms. O’Brien”).
(Docket 23 at p. 2). The City and the Individual Capacity Defendants oppose
plaintiff’s motion for an extension of time to perfect service. (Dockets 32 & 33).
As a pro se litigant, Mr. Reints is expected to comply with procedural and
substantive law. Burgs, 745 F.2d at 528. “While a court generally affords pro
se filings a liberal construction, a litigant’s pro se status does not excuse him
from reading the Federal Rules of Civil Procedure.” Jiricko, 184 F.R.D. at 615
(referencing McNeil, 508 U.S. at 113 (“[W]e have never suggested that
procedural rules in ordinary civil litigation should be interpreted so as to
excuse mistakes by those who proceed without counsel.”)).

16

Plaintiff’s complaint was filed on June 7, 2013. (Docket 1). Fed. R. Civ.
P. 4(m) requires a plaintiff to serve all defendants with the summons and
complaint within 120 days of the filing of the complaint.
Time Limit for Service. If a defendant is not served within 120 days
after the complaint is filed, the court--on motion or on its own after
notice to the plaintiff--must dismiss the action without prejudice
against that defendant or order that service be made within a
specified time. But if the plaintiff shows good cause for the failure,
the court must extend the time for service for an appropriate period
....
Fed R. Civ. P. 4(m). Under Rule 4(m), Mr. Reints had until October 7, 2013, to
perfect service of process on all of the defendants.4
Fed. R. Civ. P. 4(j) requires that a municipal corporation, such as the
City, “be served by: (A) delivering a copy of the summons and of the complaint
to its chief executive officer; or (B) serving a copy of each in the manner
prescribed by that state’s law for serving a summons . . . on such a defendant.”
Fed. R. Civ. P. 4(j)(A) & (B). The mayor “is the chief executive officer of the
municipality.” Schlimgen v. City of Rapid City, 83 F. Supp. 2d 1061, 1067
(D.S.D. 2000) (citing SDCL § 9–8–1) (“The chief executive officer of a
municipality under the aldermanic form shall be a mayor.”). Under South
Dakota law, service of process is complete if served “upon the mayor or any
alderman or commissioner . . . .” SDCL § 15-6-4(d)(2)(ii).

4

Because the 120th day fell on October 5, 2013, a Saturday, Mr. Reints
was required to complete service by the following Monday, October 7, 2013.
See Fed. R. Civ. P. 6(a)(1)(C).
17

Rule 4(e) dictates the procedure for service of process on an individual:
Unless federal law provides otherwise, an individual--other than . . .
a person whose waiver has been filed--may be served in a judicial
district of the United States by:
(1)

following state law for serving a summons in an action
brought in courts of general jurisdiction in the state
where the district court is located or where service is
made; or

(2)

doing any of the following:
(A)

delivering a copy of the summons and of the
complaint to the individual personally;

(B)

leaving a copy of each at the individual’s
dwelling or usual place of abode with
someone of suitable age and discretion who
resides there; or

(C)

delivering a copy of each to an agent
authorized by appointment or by law to
receive service of process.

Fed. R. Civ. P. 4(e)(1) & (2). South Dakota requires service of process on an
individual “personally . . . .” SDCL § 15-6-4(d)(8). Alternately, “[i]f the
defendant cannot be found conveniently, service may be made by leaving a
copy at his dwelling house in the presence of a member of his family over the
age of fourteen years or if the defendant resides in the family of another, with a
member of such age of the family with which he resides.” SDCL § 15-6-4(e).

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On September 28, 2013, summonses were issued by the Clerk of Court
directed to the following defendants:5
1.
2.
3.
4.
5.
6.
7.
8.

The City of Rapid City;
Andey Chlebeck;
Brad Solon;
Joel Landeen;
Wade Nyberg;
Ron Sasso;
Keith L’Esperance; and
Jason Green.

(Docket 7 at pp. 9-10, 1-2, 13-14, 19-20, 27-28, 31-32, 37-38 & 49-50). Each
summons was issued in the name of the individual and directed to the
attention of “Mr. Joel Landeen, Attorney for the City of Rapid City & [named
individual].” Id.
The certificates of service reflect service on each of the named individuals
and the City on October 3, 2013, by personal delivery of the summons and
complaint upon “Rapid City Attorney Joel Landeen . . . .” (Docket 9 at pp. 3, 9,
12, 14, 20, 26 & 27). Copies of the summons and complaint were served on
October 3, 2013, on “Sam Kooiker, Mayor of Rapid City” and the “City of Rapid
City” by delivery through “Rapid City Attorney Joel Landeen . . . .” (Docket 9 at
pp. 18 & 22).

5

Mr. Rients agreed with the defendants that a number of defendants
sued in their official capacities could be dismissed from this litigation.
(Dockets 20 & 29). Only those remaining defendants sued in their individual
capacities are addressed in these motions.
19

It is undisputed Sam Kooiker was the mayor at the time Mr. Reints
commenced this litigation. Therefore, service upon Mayor Kooiker would have
satisfied the requirements of Rule 4(j)(A). However, at Mr. Reints’ request and
direction, the summons and complaint directed to Mayor Sam Kooiker were
served on Mr. Landeen, as City attorney. (Docket 9 at p. 18). Service on Mr.
Landeen6 does not satisfy either Rule 4(j)(A) or (B) as service on the City.
In his defense and in support of his motion for an extension of time to
perfect service (Docket 23), Mr. Reints counters that he provided each of the
defendants with a notice of lawsuit and request for waiver of service of process
to avoid unnecessary expense under Fed. R. Civ. P. 4(d)(1)(D). (Docket 23 at p.
3). That portion of Rule 4 provides in part:
(d)

Waiving Service.
(1)

Requesting a Waiver. An individual [or] corporation . . .
subject to service under Rule 4(e), (f), or (h) has a duty to
avoid unnecessary expenses of serving the summons.
The plaintiff may notify such a defendant that an action
has been commenced and request that the defendant
waive service of a summons. The notice and request
must:
(A)

be in writing and be addressed:
(i)

to the individual defendant; or

6

Mr. Landeen was personally served in his individual capacity as
required by Rule 4(e)(2)(A), so he has not joined in defendants’ motion. (Docket
9 at pp. 27-28).
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(ii)

for a defendant subject to
service under Rule 4(h), to an
officer, a managing or general
agent, or any other agent
authorized by appointment or
by law to receive service of
process;

(B)

name the court where the complaint was
filed;

(C)

be accompanied by a copy of the complaint,
two copies of a waiver form, and a prepaid
means for returning the form;

(D)

inform the defendant, using text prescribed
in Form 5, of the consequences of waiving
and not waiving service;

(E)

state the date when the request is sent;

(F)

give the defendant a reasonable time of at
least 30 days after the request was sent
. . . to return the waiver; and

(G)

be sent by first-class mail or other reliable
means.

Fed. R. Civ. P. 4(d).
Mr. Reints asserts on September 8, 2013, he sent “Rule 4 ‘Notice(s) of a
Lawsuit and Request to Waive Service of Summons’ to Joel Landeen (for
himself, for the City of Rapid City and for the individual City employee
Defendants) . . . .” (Docket 23 at p. 3). The “notice[s] were sent via USPS
Priority Mail and [were] delivered [to Mr. Landeen] on September 11, 2013
. . . .” Id. “None of the Defendants to whom waiver requests were sent waived

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service of summons.” Id. Process as to each of the defendants was then served
on City Attorney Landeen on October 3, 2013. Id.; see also Docket 9 at pp. 3,
9, 12, 14, 18, 20, 22, 26 & 27. Service on City Attorney Landeen does not
perfect service of process on the individual defendants under Rule 4(e), SDCL
§ 15-6-4(d), or SDCL § 15-6-4(e).
Mr. Reints argues these “defects in service were not mere inadvertence or
casual mistake . . . but born of confused memory of the first lawsuit Reints
ever filed against anyone.” (Docket 23 at pp. 4-5). In a previous case, “Reints
was sternly reprimanded by Seventh Circuit Judge John Delaney for having
caused a constable to personally serve the Rapid City Police Officer, after the
City Attorney had appeared at a hearing on behalf of the City and the officer.”
Id. at p. 5. Mr. Reints believes the lesson learned from that reprimand was
“that he must not serve the City or City employees and officers except through
the City Attorney.” Id. Mr. Reints “asserts that his diligence in notifying
defendants of his imminent lawsuit, his diligence and timeliness in service on
defendants albeit defective or probably defective, the contribution of an
undiagnosed and untreated medical condition7 to his confusion about the
correctness of service on the City and all City parties by service on the City

7

Mr. Reints submitted an affidavit indicating he was diagnosed on
October 23, 2013, with hypothyroidism and was prescribed levothyroxin, which
enhanced his mental functioning. (Docket 23-1 at ¶¶ 8-9). The diagnosis and
prescription are confirmed by Dr. Everson’s letter of November 10, 2013.
(Docket 27-1).
22

Attorney, the fact that no defendant has been prejudiced in his or her ability to
defend, . . . considered together, constitute good cause for extension of time to
perfect service on these parties.” Id.
The City and Specially Appearing Defendants oppose Mr. Reints’ motion
for an extension of time. (Docket 33). They argue Mr. Reints has not shown
good cause or excusable neglect for failing to timely serve these defendants as
required by Rule 4(m). Id. at pp. 5-9.
“[U]nder Rule 4(m), if the district court concludes there is good cause for
plaintiff’s failure to serve within 120 days, it shall extend the time for service.
If plaintiff fails to show good cause, the court still may extend the time for
service rather than dismiss the case without prejudice. . . . To warrant a
discretionary extension, the plaintiff must establish excusable neglect.” Kurka
v. Iowa County, Iowa, 628 F.3d 953, 957 (8th Cir. 2010) (internal citations
omitted) (italics in original). “Rule 4(m) does not define good cause, and courts
have not given conclusive meaning to the phrase.” Id. “[G]ood cause is likely
(but not always) to be found when . . . the plaintiff has acted diligently in trying
to effect service or there are understandable mitigating circumstances, or . . .
the plaintiff is proceeding pro se or in forma pauperis.” Id. (citing Wright &
Miller, Federal Practice and Procedure § 1137 (3d ed. 2002) (other citation
omitted). “Under Rule 4(m), the district court must determine whether good
cause exists for the plaintiff’s failure to serve the defendant within the 120-day

23

deadline, not whether good cause exists for an extension of time to complete
service. In determining whether good cause exists, the district court must
focus primarily on the plaintiff’s reasons for not complying with the time limit
in the first place.” Id. at 958 (internal quotation marks and citation omitted).
The court finds that Mr. Reints, appearing pro se, did not act promptly
following the filing his complaint in June 2013. However, under a mistaken
belief after his earlier state court experience, he sent Rule 4 notices and
requests to waive service on September 8, 2013, to the defendants through the
City Attorney. When waivers were not forthcoming, Mr. Reints obtained
summonses from the Clerk on September 28, 2013, and sought to complete
service of process through the City Attorney. This was well before the Rule
4(m) 120-day deadline of October 7, 2013. Mr. Reints’ mistake of the law,
based on his earlier reprimand from a state court judge, was made in good
faith and constitutes excusable neglect and good cause for granting relief.
After defendants filed their motion to dismiss for failure to complete service of
process on October 24, 2013—after the expiration of the Rule 4(m) time
frame—Mr. Reints promptly filed his motion for an extension of time to
complete service on November 5, 2013. Compare Dockets 15, 17, & Docket 23.
The court also finds defendants are not prejudiced by Mr. Reints’ earlier
mistakes. The City, its employees, and attorney had full knowledge of the
existence of this lawsuit since September 8, 2013. Other than their timeliness-

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of-service argument, defendants have not articulated any prejudice to them if
Mr. Reints’ motion is granted. On the other hand, Mr. Reints asserts, and the
defendants acknowledge, that if the court dismisses his case without prejudice
instead of allowing him additional time to complete service of process, his
claims would be barred by the statute of limitations. (Dockets 23 at ¶ 14; 33 at
p. 9).
Mr. Reints’ efforts to serve defendants during the 120-day period, his
diligence after the 120-day period had expired, the absence of prejudice to the
defendants, and the “lethal effect of the statute of limitation” justify both a
mandatory and discretionary extension. Kurka, 628 F.3d at 958.
The City’s motion to dismiss (Docket 12) and the Specially Appearing
Defendants’ motion to dismiss (Docket 17) are denied. Mr. Reints’ motion for
an extension of time to complete service (Docket 23) on the City and the
remaining Specially Appearing Defendants is granted.
AMENDED COMPLAINT
Mr. Reints filed a motion to amend the complaint. (Docket 42). In
compliance with D.S.D. Civ. LR 15.1, Mr. Reints filed a proposed amended
complaint with the appropriate editing requirements. (Docket 42-1). The City
and Specially Appearing Defendants oppose the motion. (Docket 45).
Defendants argue the amended complaint should not be allowed for all the
reasons articulated in their earlier motions. Id. at p. 3.

25

Motions to amend pleadings are governed by Fed. R. Civ. P. 15. That
rule, as pertinent to this case, provides “a party may amend its pleading only
with the opposing party’s written consent or the court’s leave. The court
should freely give leave when justice so requires.” Fed. R. Civ. P. 15(a)(2).
As discussed earlier in this order, permission to file an amended complaint
should be denied only in limited situations. Those include “undue delay, bad
faith on the part of the moving party, futility of the amendment, or unfair
prejudice to the non-moving party . . . .” Roberson, 241 F.3d at 995. “The
burden of proof of prejudice is on the party opposing the amendment.” Id. If
the facts alleged in the amended complaint may entitle Mr. Reints to relief, he
should be allowed the chance to present those claims in court. Foman, 371
U.S. at 182.
The court finds Mr. Reints filed his motion to amend in good faith and
without undue delay. The City and Specially Appearing Defendants have not
met their burden of showing prejudice.
The only issue remaining is futility. Mr. Reints’ proposed amended
complaint makes a claim that the City has an unconstitutional public nuisance
ordinance, that the City’s employees were unlawfully exercising their discretion
to apply the notice provisions of that ordinance in an unconstitutional manner
as applied to Mr. Reints, and that without good cause and in violation of his
rights the City removed a tree and vehicle and performed activities on his
property which resulted in unlawful assessments against him. If true, these

26

are not frivolous claims. Becker, 191 F.3d at 908. Mr. Reints is entitled to the
“opportunity to test his claim on the merits.” Foman, 371 U.S. 182.
For good cause shown, Mr. Reints’ motion to file an amended complaint
(Docket 42) is granted.
ORDER
Based on the above analysis, it is hereby
ORDERED the The Travelers Companies’ motion to dismiss (Docket 12)
is granted.
IT IS FURTHER ORDERED that the City’s motion to dismiss (Docket 15)
is denied.
IT IS FURTHER ORDERED that the Specially Appearing Defendants’
motion to dismiss (Docket 17) is denied.
IT IS FURTHER ORDERED that the motion to dismiss claims against the
defendants Jason Green, Brad Solon, Joel Landeen, Wade Nyberg, Andy
Chlebeck, Ron Sasso, Keith L’Esperance, Jim Shaw, Alan Hanks, Sam Kooiker,
Bonny Peterson, Dave Davis, Jerry Wright, Gary Brown, Charity Doyle, Steve
Laurenti, Ritchie Nordstrom, Jordan Mason, John Roberts, Pauline Sumpton,
a/k/a Pauline Sumption, Jane Doe, a/k/a “Connie,” Gary Garner, Barb
Garcia, Jeff Barbier, and Brett Limbaugh, and Jane and John Does 3-25 in
their official capacities (Docket 20) is granted.
IT IS FURTHER ORDERED that plaintiff’s motion for extension of time to
complete service (Docket 23) on the City and the remaining Specially Appearing
Defendants is granted in part and denied in part.
27

IT IS FURTHER ORDERED that plaintiff’s motion to correct a misnomer
(Docket 34) is denied as moot.
IT IS FURTHER ORDERED that plaintiff's motion for hearing (Docket 40)
is denied as moot.
IT IS FURTHER ORDERED that plaintiff’s motion to file an amended
complaint (Docket 42), as that motion relates to The Travelers Companies and
Ms. O’Brien, is denied.
IT IS FURTHER ORDERED that plaintiff’s motion to file an amended
complaint (Docket 42), as that motion relates to the City and the remaining
Specially Appearing Defendants and is consistent with this order, is granted.
IT IS FURTHER ORDERED that plaintiff shall file his amended complaint
(Docket 42-1), as amended by and consistent with this order, on or before
October 8, 2014.
IT IS FURTHER ORDERED that plaintiff shall deliver completed
summonses to the Clerk of Court and complete service of the summonses and
amended complaint, as required by Fed. R. Civ. P. 4, on the City and each of
the remaining individual defendants on or before November 7, 2014.
Dated September 24, 2014.
BY THE COURT:
/s/ Jeffrey L. Viken
JEFFREY L. VIKEN
CHIEF JUDGE

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