United States District Court, D. Nebraska
METROPOLITAN OMAHA PROPERTY OWNERS ASSOCIATION, INC., and ROOSEVELT LEE, Plaintiffs,
THE CITY OF OMAHA, JEAN STOTHERT, in her individual and official capacity; JAY DAVIS, in his individual and official capacity; PAUL KRATZ, in his individual and official capacity; JANE DOES, and JOHN DOES, Defendants.
MEMORANDUM AND ORDER
SMITH CAMP SENIOR UNITED STATES DISTRICT JUDGE
matter is before the Court on Defendants' Motion to
Dismiss for Failure to State a Claim, ECF No. 14. For the
following reasons, the Motion will be granted in part.
following facts are those alleged in the Complaint, ECF No.
1, and are assumed true for purposes of this Motion.
Metropolitan Omaha Property Owners Association, Inc. (MOPOA)
is a Nebraska nonprofit corporation. MOPOA consists of
approximately 1, 000 individuals and entities that own and
operate real property located in Omaha, Nebraska.
include the City of Omaha and a list of city officials,
including: Mayor Jean Stothert, Superintendent of Permits and
Inspections Jay Davis, City Attorney Paul Kratz, and unknown
Jane and John Does who Plaintiffs anticipate are agents or
representatives of the City.
action arises out of an earlier class action lawsuit in this
Court, in which MOPOA brought a number of claims regarding
the City's housing code. The parties settled that action,
and the Court adopted the terms of the settlement agreement
through a consent decree. Consent Decree, Metro. Omaha
Prop. Owners Ass'n, Inc. v. City of Omaha (MOPOA
I), No. 8:13-cv-230-LSC-FG3 (D. Neb. Mar. 4, 2015), ECF
No. 36 (incorporating the terms of the Settlement Agreement
& Release, ECF No. 35-2). The parties to the Consent
Decree agreed to certain amendments of the Omaha Municipal
Code and established standard operating procedures which were
to serve as the official policies of the City's Permits
and Inspection Division.
November 17, 2015, the City adopted the Vacant and Abandoned
Property Ordinance (VAPO), Omaha, Neb., Code §§
48-141 to 48-162. The VAPO went into effect December 2, 2015.
The stated purpose of the VAPO is to “establish a
mechanism to protect residential and non-residential
neighborhoods from becoming blighted through the lack of
maintenance and security of abandoned properties . . .
.” Omaha, Neb., Code § 48-142. The VAPO authorizes
the Superintendent of the City's Permits and Inspection
Division to investigate properties that may be abandoned,
vacant, or neglected, as defined by the VAPO,  and to notify the
responsible party of its obligation to register the property
under the VAPO. Omaha, Neb., Code §§ 48-145,
48-148. A responsible party must complete the necessary
maintenance and security measures, such that the property no
longer requires registration, within thirty days of receiving
notice from the City or register the property pursuant to the
VAPO. Omaha, Neb., Code § 48-148. A registration fee of
$500, payable by the responsible party, is due at the time of
registration as well as an additional $500 for each 90-day
period during which the property is registered. Omaha, Neb.,
Code § 48-149.
Roosevelt Lee is an African-American male who resides in and
owns real property in Omaha, Nebraska. Lee is a member of
MOPOA. Lee owns rental property in Omaha. In or around 2018,
Lee's property was registered as abandoned and/or vacant
under the VAPO. The City did not provide Lee with notice
prior to his registration, give him an opportunity to cure,
or permit him to appeal or contest the registration.
August 6, 2019, Plaintiffs brought this action, on behalf of
themselves and a putative class, alleging seven claims for
relief. Compl., ECF No. 1. On September 27, 2019, Defendants
filed a Motion to Dismiss, ECF No. 14, seeking dismissal of
Plaintiffs' action with prejudice.
complaint 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). To satisfy this
requirement, a plaintiff must plead “enough facts to
state a claim to relief that is plausible on its face.”
Corrado v. Life Inv'rs Ins. Co. of Am., 804 F.3d
915, 917 (8th Cir. 2015) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). “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.”
Barton v. Taber, 820 F.3d 958, 964 (8th Cir. 2016)
(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009)). “Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do
not suffice.” Zink v. Lombardi, 783 F.3d 1089,
1098 (8th Cir. 2015) (quoting Iqbal, 556 U.S. at
678), cert. denied, 135 S.Ct. 2941 (2015). The
complaint's factual allegations must be “sufficient
to ‘raise a right to relief above the speculative
level.'” McDonough v. Anoka Cty., 799 F.3d
931, 946 (8th Cir. 2015) (quoting Twombly, 550 U.S.
at 555). The Court must accept factual allegations as true,
but it is not required to accept any “legal conclusion
couched as a factual allegation.” Brown v. Green
Tree Servicing LLC, 820 F.3d 371, 373 (8th Cir. 2016)
(quoting Iqbal, 556 U.S. at 678). Thus, “[a]
pleading that offers ‘labels and conclusions' or
‘a formulaic recitation of the elements of a cause of
action will not do.'” Ash v. Anderson
Merchandisers, LLC, 799 F.3d 957, 960 (8th Cir. 2015)
(quoting Iqbal, 556 U.S. at 678), cert.
denied, 136 S.Ct. 804 (2016).
motion to dismiss, courts must rule “on the assumption
that all the allegations in the complaint are true, ”
and “a well-pleaded complaint may proceed even if it
strikes a savvy judge that actual proof of those facts is
improbable, and ‘that a recovery is very remote and
unlikely.'” Twombly, 550 U.S. at 555 &
556 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236
(1974)). “Determining whether a complaint states a
plausible claim for relief . . . [is] a context-specific task
that requires the reviewing court to draw on its judicial
experience and common sense.” Mickelson v. Cty. of
Ramsey, 823 F.3d 918, 923 (8th Cir. 2016) (alteration in
original) (quoting Iqbal, 556 U.S. at 679).
allege, on behalf of themselves and a putative class, seven
claims for relief arising out of the City's enactment of
the VAPO. Plaintiffs generally allege that these claims are
brought under 42 U.S.C. §§ 1981-1983, 1985, 3613;
the Fourth, Fifth, and Fourteenth Amendments to the United
States Constitution; and the Court's inherent power to
enforce its own orders, judgments, and decrees. Plaintiffs
also generally allege that Defendants should be held liable
both in their individual and official capacities as
co-conspirators. Plaintiffs allege the VAPO constitutes a
breach of the Consent Decree, is an unlawful and
unconstitutional tax, violates the Fair Housing Act, is
unconstitutional, deprives Plaintiffs of procedural due
process, and constitutes an unlawful taking without just
argue that the Complaint does not give sufficient notice to
the individual plaintiffs of the claims against them.
Defendants further argue that Plaintiffs allege only
conclusory legal allegations and bring every conceivable
claim against every conceivable defendant in a “kitchen
sink” or “shotgun” complaint.
“Kitchen Sink” Complaint
of the Federal Rules of Civil Procedure commands that a
complaint must contain “a short and plain statement of
the claim showing that the pleader is entitled to
relief.” Fed.R.Civ.P. 8(a). “District courts in
the Eighth Circuit, including this Court, have
‘criticized the filing of “kitchen sink” or
“shotgun” complaints-complaints in which a
plaintiff brings every conceivable claim against every
conceivable defendant.'” Harrington v.
Strong, 363 F.Supp.3d 984, 993 n.5 (D. Neb. 2019)
(quoting Gurman v. Metro. Hous. & Redevelopment
Auth., 842 F.Supp.2d 1151, 1153 (D. Minn. 2011)).
“It is the plaintiff's burden, under both Rule 8
and Rule 11, to reasonably investigate their claims, to
research the relevant law, to plead only viable claims, and
to plead those claims concisely and clearly, so that a
defendant can readily respond to them and a court can readily
resolve them.” Id. (quoting Gurman,
842 F.Supp.2d at 1153).
complaint must also, “at a minimum be sufficient to
give the defendant notice of the claim.” Tatum v.
Iowa, 822 F.2d 808, 810 (8th Cir. 1987) (per curiam)
(affirming district court's dismissal of a complaint for
plaintiff's failure to relate with specificity how each
of the defendants were involved in his claim (citing
Conley v. Gibson, 355 U.S. 41, 48 (1957))).
Defendants argue the Complaint fails to provide them with
adequate notice to respond to the claims against them.
Claims Against Individual Defendants
against individuals in their official capacities are
equivalent to claims against the entity for which they work .
. . . Personal capacity claims, on the other hand, are those
which allege personal liability for individual actions by
officials in the course of their duties . . . .”
Gorman v. Bartch, 152 F.3d 907, 914 (8th Cir. 1998)
(citing Hafer v. Melo, 502 U.S. 21, 24-27 (1991));
see also Elder-Keep v. Aksamit, 460 F.3d 979, 986
(8th Cir. 2006) (“A suit against a public official in
his official capacity is actually a suit against the entity
for which the official is an agent.” (quoting
Kentucky v. Graham, 473 U.S. 159, 165 (1985))).
allege generally that Mayor Stothert, Superintendent Davis,
City Attorney Kratz, and unknown Jane and John Does should be
held liable in their official and individual capacities.
Claims against the individual defendants in their official
capacities are redundant because the City of Omaha is a
defendant in this case. The Plaintiffs do not allege which
actions by which Defendants relate to their claims. The
Complaint does not give Defendants sufficient notice or allow
them to readily respond to the claims against them.
Therefore, all claims are dismissed, without prejudice, as
against the individual Defendants.
Count III - VAPO is Unlawful and Unconstitutional
III alleges the VAPO is unlawful and unconstitutional because
it violates the Consent Decree, unjustly enriches the City,
is discriminatory toward, and has a disparate impact on,
minorities, and violates the due process clauses of the Fifth
and Fourteenth Amendments. To the extent these arguments may
state a cause of action, they are addressed by
Plaintiffs' other claims. Count I addresses
Plaintiffs' allegations that the VAPO violates the
Consent Decree. Count II addresses Plaintiffs'
allegations that the VAPO is an unlawful and unconstitutional
tax. Count IV addresses Plaintiffs' allegations that the
VAPO is discriminatory toward, and has a disparate impact on,
minorities in violation of the Fair Housing Act. Count VI
addresses Plaintiffs' allegations that the VAPO deprives
Plaintiffs of due process. Count III contains no factual
allegations, nor does it contain short and plain statements
as to Plaintiffs' theory of each claim. Therefore, Count
III will be dismissed, without prejudice.
Count V - VAPO is Unconstitutional
of the Complaint alleges the VAPO is unconstitutional in its
entirety, and that eight sections are unconstitutional for
numerous reasons. Plaintiffs list the full text of each
section alleged to be unconstitutional, followed by a list of
reasons each section is unconstitutional. For example, the
Section 48-145 is vague and ambiguous, fails to provide
property owners with sufficient notice of their basic
obligations under law, fails to inform property owners of
what the City commands or forbids, does not set forth
adequate standards to prevent arbitrary enforcement and, in
fact, permits arbitrary enforcement, illegally and improperly
delegates the authority to make housing law, including in
violation of Article II, § 1 of the Nebraska
Constitution, provides individuals with unwarranted and
unfettered discretion to determine whether a violation of law
occurs, does not convey sufficiently definite warning as to
the proscribed conduct when measured by common understanding
or practice, affords inadequate due process, expressly
authorizes trespass, warrantless searches, and seizures in
violation of the Fourth Amendment to the United States
Constitution and Article I, § 21 of the Nebraska
Constitution, and permits taking of private property without
compensation in violation of the Fifth Amendment to the
United States Constitution and Article I, § 21 of the
Compl. ¶ 96, ECF No. 1. Plaintiffs argue that because of
the class nature of the complaint, “specific factual
allegations would create a risk of inconsistent or varying
adjudications with respect to individual class members . . .
.” Pls.' Br. 25, ECF No. 18 (internal quotations
omitted). However, a plaintiff must plead “enough facts
to state a claim to relief that is plausible on its
face.” Corrado, 804 F.3d at 917 ...