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Swiish v. Nixon

United States District Court, Eastern District of Missouri, Eastern Division

February 27, 2015

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



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 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.

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 ยง ...

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