United States District Court, E.D. Missouri, Eastern Division
A.L.L. CONSTRUCTION, LLC, Plaintiff,
METROPOLITAN ST. LOUIS SEWER DISTRICT, JAMES FAUL, RUBY BONNER, RONALD BOBO, MICHAEL YATES, and JAMES I. SINGER, Defendants.
MEMORANDUM AND ORDER
G. FLEISSIG, UNITED STATES DISTRICT JUDGE
matter is before the Court on the motions of Defendants
Metropolitan St. Louis Sewer District (“MSD”) and
five of the six members of MSD's Board of Trustees
(“Trustees”), in their individual capacities, to
dismiss the complaint of Plaintiff ALL Construction, LLC
(“ALL”) for lack of standing and failure to state
a claim. ECF Nos. 10 & 12. In the event that the Court
does not dismiss the complaint, Defendants have also moved to
strike certain allegations. ECF No. 8. For the following
reasons, the Court will deny the motion to strike and will
hold the motion to dismiss in abeyance, subject to ALL
amending its complaint.
alleged in the complaint, ALL is a construction company that
aids in the construction of sewer systems, and has worked as
a general contractor or subcontractor for MSD for
approximately 20 years. MSD is a “municipal corporation
and political subdivision of the State of Missouri, organized
and existing pursuant to powers conferred by Article VI,
Section 30 of the Missouri Constitution.” Compl., ECF
No. 5 ¶ 2.
a policy providing that “a bidder on non-building
construction projects exceeding $50, 000.00 must utilize
Minority Business Enterprises (African American) on 17% of
the project. A bidder who fails to achieve this percentage of
MBE participation will have its bid rejected as
nonresponsive, unless the bidder can demonstrate a good faith
effort to achieve the MBE goal.” Compl. ¶ 11. ALL
qualifies as a “Minority Business Enterprise”
(“MBE”) under MSD's policy in that its owner,
Anton Lumpkins, is African American. ALL was awarded
MSD's “Minority Contractor of the Year” in
worked as an MBE subcontractor for general contractors that
frequently do business with MSD, including Bates Utility
Company (“Bates”) and SAK Construction, LLC
(“SAK”). Beginning in 2016, Bates included ALL as
a subcontractor on several projects for MSD, with ALL helping
Bates achieve MSD's MBE requirements. However, a Chief
Estimator and Project Manager with Bates soon expressed his
“distaste” for MSD's MBE requirements, and
“beginning in early 2016, Bates used ALL on bids to
meet MSD's MBE participation requirements so that it
would be awarded MSD projects but did not actually use ALL on
these projects, ” at times not even calling ALL to the
job site. Compl. ¶¶ 23, 27, 29.
contacted MSD staff in an effort to obtain Bates's
compliance with MSD's MBE participation requirements.
Lumpkins, ALL's owner, “believed that ALL was not
the only MBE that was being exploited on MSD projects and
that other MBEs were being listed on bids to meet MSD's
MBE participation requirements and then not being used on the
projects.” Compl. ¶ 33.
alleges that “[o]n or about April 14, 2016, Lumpkins,
as a private citizen, spoke at a public meeting of MSD's
Board of Trustees.” Compl. ¶ 34. Lumpkins told the
Board about the issues that he and other minority
subcontractors were having with Bates. Specifically, Lumpkins
told the Board that Bates was using ALL and other MBEs in
bids to achieve MSD's diversity requirements, while
excluding them from performing work on projects. Compl.
¶ 35. During the meeting, Defendant James Singer, one of
the Trustees, “noted that Lumpkins was ‘like a
whistleblower' given the ‘pretty serious'
allegations regarding Bates'[s] circumvention of
MSD's MBE participation requirements.” Compl.
to the complaint, a few days after the meeting, “MSD
staff began contacting ALL complaining about various issues
with ALL's work, ” and “MSD also refused to
approve a change order on an ALL project, forcing it to pay
thousands of dollars out of pocket[.]” Compl.
¶¶ 41-42. Then, on June 19, 2016, “ALL was
removed from the Small Contractor
Program.” Compl. ¶ 44. ALL further alleges that
“the most egregious retaliation” occurred during
the bid and award process for an MSD project known as the
“Deer Creek Project.” On September 29, 2016,
MSD's professional staff of engineers awarded the Deer
Creek Project to a general contractor, Jay Dee and Frontier-
Kemper (“Jay Dee”), who had submitted the lowest
and best bid of $147, 777, 777.77. Jay Dee listed ALL as a
subcontractor in the bid to perform $5 million worth of
tunneling construction work, helping Jay Dee meet MSD's
another general contractor that had previously employed ALL,
had also submitted a bid for the Deer Creek Project and lost.
SAK thereafter filed with MSD a formal protest of the award
of the Deer Creek Project to Jay Dee. In its protest, SAK
claimed that ALL was not qualified to do the tunneling work
on the Deer Creek Project.
professional staff of engineers denied the protest, finding
that the assertions were without merit and that ALL was a
qualified subcontractor. SAK appealed, and on November 29,
2016, MSD's professional staff denied the appeal.
Nevertheless, on December 8, 2017, the Trustees “voted
against introducing the ordinance that would have approved
MSD's professional staff's award of the bid to Jay
Dee, ” by a 5-1 vote. According to ALL, “the MSD
Board of Trustees has rarely-if ever-refused to ratify a
notice of award to a contractor recommended by its
professional staff of engineers, ” and in the last five
years, the Trustees have ratified every single notice of
award given by MSD's professional staff for projects in
excess of $10 million with the “lone exception of Jay
Dee and the Deer Creek Project.” Compl. ¶¶
following day, December 9, 2016, MSD's Director of
Engineering wrote two letters to Jay Dee. The first letter
stated that MSD was “rescinding the Notice of Award
previously issued . . . for the [Deer Creek Project] due to
the proposed contract not being confirmed.” The second
letter stated, “as a follow up to the recension of the
Notice of Award, ” that MSD “object[ed] to the
utilization of ALL Construction as a subcontractor” for
the Deer Creek Project, and that MSD was requesting that Jay
Dee submit “an acceptable MBE substitute(s) to ALL
Construction.” Compl. ¶¶ 66-67.
“MSD's request that Jay Dee remove [ALL] from the
Deer Creek Project was, according to [MSD's Executive
Director, ] Brian Hoelscher, the ‘first time in
MSD's staff's recollection' that it had ever
specifically requested the removal of a single
subcontractor.” Compl. ¶ 69. Jay Dee subsequently
“removed and replaced ALL from the Deer Creek Project,
as required by MSD and its Board of Trustees.” Compl.
alleges that the “Board of Trustees caused [ALL] to be
removed a subcontractor from the Deer Creek Project,
resulting in financial injury to [ALL], ” and that the
“Board of Trustees has final policymaking authority in
MSD.” Compl. ¶¶ 78-79.
Lumpkins'[s] speech, and more specifically, his
expressions as a private citizen to the Board of Trustees
that Bates was not complying with MSD's MBE participation
requirements on its projects (and potentially engaging in
fraud as it relates to such participation) designed to
ameliorate the legacy of race discrimination in the St.
Louis-area construction community, made at a reasonable time
and in a reasonable manner, was a motivating factor and/or
played a part in the decisions to retaliate against [ALL] by
among other things, removing it from the Deer Creek Project.
Compl. ¶ 80.
filed suit in state court on August 9, 2017, asserting claims
under 42 U.S.C. § 1983 against MSD and the Trustees, in
their individual capacities, for First Amendment retaliation.
Defendants removed the case to this Court on September 6,
2017, on the basis of federal question jurisdiction.