United States District Court, Eastern District of Missouri, Eastern Division
ARNOLD S. JACOBSON, et al., Plaintiffs,
METROPOLITAN ST. LOUIS SEWER DISTRICT, et al., Defendants.
MEMORANDUM AND ORDER
AUDREY G. FLEISSIG, UNITED STATES DISTRICT JUDGE.
This matter is before the Court on the motion (Doc. No. 7) of Defendants Metropolitan St. Louis Sewer District (“MSD”) and the chairman of its board of trustees, James Buford (“Buford”), to dismiss Counts III, IV, VI, and VII of Plaintiffs’ petition. Oral argument was held on December 10, 2014. For the reasons set forth below, the motion shall be granted in part and denied in part.
Plaintiffs Arnold S. Jacobson and Joan G. Jacobson, individually and as trustees of the Jacobson Family Trust Dated 8/25/10, brought this action in state court on June 30, 2014, asserting a variety of federal and state law claims arising from the connection of a storm water sewer on Plaintiffs’ property. Plaintiffs assert state law claims for trespass (Counts I and II), inverse condemnation (Count III), assault (Count IV), slander (Count VI), and negligence (Count VII), and a federal 42 U.S.C. § 1983 claim for violation of their constitutional rights to free speech (Count V). Defendants removed the action to this Court on July 29, 2014, asserting federal question jurisdiction under 28 U.S.C. § 1331 and supplemental jurisdiction under 28 U.S.C. § 1367(a). (Doc. No. 1.)
Plaintiffs’ claims arise from the discovery of an unrecorded storm water sewer on their property. The sewer was discovered when a contractor hit and damaged it during the demolition of a house on neighboring property. (Doc. No. 5 at 3.) Plaintiffs allege that the storm water sewer is controlled by Defendant MSD, and when MSD discovered the sewer, it disconnected the sewer and rerouted it away from the neighboring demolished property and directly through Plaintiffs’ property. (Id. at 4.)
Plaintiffs allege that because MSD does not have an easement on Plaintiffs’ property, the existence of the sewer is a “continuing trespass.” (Id. at 4.)
Plaintiffs further allege that the sewer “leaks, has other defects, and was in a dangerous condition at the time Defendant MSD reconnected the storm water sewer line to [Plaintiffs’ property]”; “Defendant MSD had actual notice of the dangerous condition in sufficient time prior to reconnecting the storm water sewer to have taken measures to protect against the dangerous condition”; “[t]he dangerous condition and the location of the storm water sewer created a reasonably foreseeable risk of harm” to Plaintiffs’ property; and “the injury to [Plaintiffs’ property] directly results from the dangerous condition of the storm water sewer and its location.” (Id. at 4-5.) Plaintiffs allege that “[t]he damage to Plaintiffs’ home and property substantially impairs Plaintiffs’ peaceful employment of their property.” (Id. at 5.) The only specific property damage alleged is Plaintiffs’ single allegation under its negligence claim that “[a]s a direct result of Defendants’ negligence Plaintiff was injured by the devaluation of their property and water damage to their property.” (Id. at 10.)
Next, Plaintiffs allege that when Plaintiff Joan G. Jacobson attempted to discuss these issues at a September 12, 2013 meeting of the board of trustees of MSD, Defendant Buford caused Ms. Jacobson to be physically removed from the meeting. Plaintiffs allege that these actions resulted in an assault on Ms. Jacobson and a violation of her constitutional right to free speech.
Finally, Plaintiffs allege that after the board meeting, MSD public information manager, Lance LeComb, made slanderous and defamatory statements to a newspaper regarding Ms. Jacobson. Plaintiffs allege that the defamatory statements damaged Ms. Jacobson’s reputation and caused her “emotional, mental, and physical pain[.]” (Doc. No. 5 at 9-10.)
On August 28, 2014, Defendants moved to dismiss the inverse condemnation, assault, slander, and negligence claims in Counts III, IV, VI, and VII. (Doc. No. 7.) Defendants do not seek to dismiss the remaining trespass and § 1983 claims and have instead answered those claims. (Doc. No. 9.)
Defendants argue that Plaintiffs’ negligence, assault, and slander claims against MSD are barred by the doctrine of sovereign immunity. Defendants contend that although sovereign immunity may be waived with respect to the negligence claim, pursuant to Mo. Rev. Stat. § 537.600.1(2), Plaintiffs have not sufficiently pleaded the elements of such waiver. Defendants argue there are no grounds for waiver of sovereign immunity with respect to the assault and slander claims.
Defendants also argue that Plaintiffs’ assault claim against Buford is barred by the doctrine of official immunity. Defendants argue that Buford is immune from liability for assault because his actions were committed during the course of his duties as a public official performing a discretionary act.
Defendants do not assert immunity from Plaintiffs’ inverse condemnation claim. However, Defendants argue that Plaintiffs fail to state a claim for inverse condemnation based on nuisance because they fail to adequately plead the elements of that claim, including that the sewer was defective or inadequate, that MSD had notice of such defective or inadequate condition, and that Plaintiffs suffered any damage as a result of such defective or inadequate condition.
Plaintiffs argue that sovereign immunity does not apply to their claims against MSD. With respect to their negligence claim, Plaintiffs argue that they have sufficiently pleaded waiver of immunity under Mo. Rev. Stat. § 537.600.1(2). Plaintiffs do not claim to have pleaded waiver with respect to the assault or slander claims. However, in response to the motion to dismiss, Plaintiffs suggest for the first time that there is an issue “whether Defendant ...