United States District Court, W.D. Missouri, Western Division
CAROL J. EBLEN, Plaintiff,
CITY OF KANSAS CITY, MISSOURI, et al., Defendants.
ORDER GRANTING IN PART DEFENDANTS' MOTION TO
DISMISS, GRANTING PLAINTIFF'S MOTION TO AMEND THE
COMPLAINT, AND REMANDING CASE
KAYS, CHIEF JUDGE
Plaintiff is a ninety-year old widow who is suing the City of
Kansas City, Missouri, (the “City”), various city
employees, the City Mayor, and a City Council member, for
claims arising out of her efforts to connect her home to the
City's sewer system. Plaintiff alleges Defendants
violated her constitutional and civil rights and breach their
contract with her.
before the Court is Defendants' motion to dismiss for
failure to state a claim (Doc. 6). As explained below, the
motion is GRANTED IN PART. Because the Court dismisses the
federal claims and only a state-law claim remains, the Court
exercises its discretion and REMANDS this case the Circuit
Court of Jackson County, Missouri for all further
Plaintiff's allegations as true and drawing all
reasonable inferences in her favor, the Court finds the facts
to be as follows.
is a ninety-year old widow who owns a home at 6205 N.W.
Westwood Lane, in Kansas City, Missouri, located at the
corner of Westwood Lane and N.W. 63rd street, in block 6 of
the Breen Hills neighborhood. Pl's Cmpl. (Doc. 1-1 at
¶ 1). She has lived in that home since at least 1980.
to the acts which led to this lawsuit, all of the homes in
the Breen Hills neighborhood utilized a septic system because
there was no available City sewer system. In 1979, residents
of Breen Hills voted to establish a sewer district. The vote
passed, establishing sewer district 15075. Id. at
result of the newly established sewer district, each resident
was assessed a portion of the sewer project costs. Residents
of Breen Hills who voted for the sewer project paid a special
assessment and could then chose to connect to the City's
sewer, or they could chose to remain on their septic systems
and connect at a later date. Id. at 39. Those who
voted against the sewer project, had a lien attached to their
property for the amount of the special assessment that became
payable at the time the resident chose to connect to the City
sewer system. Id. at ¶ 8.
alleges the sewer construction project included a sewer main
beneath N.W. 63rd street and stub connections for those who
voted in favor of the sewer district and paid the
assessment. A stub is a connector that residents use
to connect their homes to the sewer main. Id. at
¶¶ 1, 2. Those who voted against the sewer project
were not given a stub. Id. at ¶¶ 9, 11.
January 31, 1983, Plaintiff paid $3, 848.60, her portion of
the special assessment, and signed a sewer easement to the
of sewer district 15075 began around 1980 but was stalled
when the original contractor went out of business. The
project was completed in 1982 by a second contractor.
Id. at 34. Plaintiff alleges that all of her
neighbors who voted in favor of the sewer project were given
a stub to the sewer main but that she was not. She implies
that her property could have been missed during the time the
project transitioned to the new contractor.
alleges the sewer project created three categories of
residents: (1) those who paid the assessment and connected to
the City sewer at the time of construction; (2) those who
paid the assessment but did not connect to the City sewer;
and (3) those who did not pay the assessment. Id. at
¶ 10. Plaintiff alleges Category One residents were
labeled “on sewer” and as such, the City billed
Category One residents for sewer volume charges. Category Two
residents were considered to have an “actual and
available” connection to the sewer, i.e. a stub, but
were treated as “on sewer” for billing purposes,
and as such were billed for sewer volume charges.
Id. at ¶¶ 2, 6, 10. Category Three
residents had no “actual and available”, i.e. no
stub, connection to the sewer and thus, were exempted from
paying sewer volume charges. Id. at ¶¶ 8,
alleges that the public contract made between the City and
the customers of sewer district 15075, required residents in
Category Two to pay sewer volume charges, even though they
were not connected to the sewer. Id. at ¶ 6.
Plaintiff alleges this charge was part of the consideration
of the contract. The benefit of the bargain being that
Category Two residents had a stub available to them, making
connecting to the sewer a less intrusive process than those
without access to a stub.
2012, the City implemented a change to its sewer fees
imposing a sewer service charge, a flat fee, for those with
an “actual and available” connection to the sewer
system. Id. at ¶ 7; Id. at 24
(purporting to be Kansas City Ordinance 60-2, with an
effective date of May 1, 2014). Those without sewers
available for connection were exempt from the new sewer
service charge. Id. at 24 (purporting to be Kansas
City Ordinance 60-5, with an effective date of May 1, 2014).
Plaintiff alleges the City defines “actual and
available” as a sewer connection abutting or adjoining
the property and within 200 feet of the building served.
Id. at ¶ 12; Id. at 26, 28 (defining
available connection to a public sewer for purposes of
obtaining a permit). This definition imposes the new sewer
service charge on all categories of residents. Id.
¶¶ 12, 13.
the time she paid the special assessment for the sewer
project in Breen Hills, Plaintiff believed she had a stub
connection to the sewer main at the edge of her property
line, at the corner of Westwood Lane and N.W. 63rd Street.
Reinforcing this belief was that she paid sewer volume
charges each month since 1983. She believed she was required
to pay these charges under the contract because she was an
individual who had a stub available.
1983 when construction of the sewer was complete until March
2017, Plaintiff remained on her septic system because it was
in good working order. In March 2017, her septic system began
having problems and Plaintiff decided to connect to the
City's sewer system. She hired a plumber to dig up her
yard and install a lateral line connecting her home's
sewer drain to the sewer main via the stub connection.
Id. at ¶ 17. Plaintiff's plumber was unable
to locate the stub where Plaintiff believed it was located.
After some research, the plumber determined she did not have
a stub and in order to connect to the City's sewer she
would need to install a stub connection which involved
excavating N.W. 63rd Street, a public right of way.
Id. at ¶ 17. The cost of this effort was
estimated at $10, 000.
contacted the City's Water Department for an explanation
of the missing stub. The Water Department confirmed there was
no stub and stated that the sewer project for her sewer
district never included a stub for residents. The Water
Department stated that if Plaintiff wanted to connect to the
sewer, she would need to hire a master plumber, request the
proper permits to access the main in the public right of way,
and pay for all construction costs. Id. at 33.
Plaintiff then contacted others within the City because she
believed this information was contrary to the original
agreement made with the residents of sewer district 15075.
E.g., Id. at ¶ 18.
alleges the individual defendants lied when they stated
construction of sewer district 15075 never included private
connections. E.g., Id. at ¶¶ 18,
19, 20. She also alleges that the individual defendants
conspired with each other to give her this false information.
Id. at ¶¶ 21, 27, 34, 38.
researching Plaintiff's water account, the City confirmed
Plaintiff's statements that she had been billed, and was
paying sewer volume charges each month. The City believed
this was in error because she was not connected to the
City's sewer system. The City researched Plaintiff's
account back to May 7, 2004, the earliest its billing system
permitted. Id. at 37. The City sent Plaintiff a
check for $1, 574.08, a refund of the sewer volume charges
from May 7, 2004. Plaintiff returned the check to the City.
As a result, the City applied a credit to Plaintiff's
water account. Id. at ¶ 35. Plaintiff alleges
these sewer volume charges are not an error and that she is
required to pay these fees under the sewer district contract
and as a Category Two resident. Id. Plaintiff
alleges the City is attempting to re-classify her breach of
contract issue as a billing error. Id.
asserts at least three claims: (1) violation of 42 U.S.C.
§ 1983 by the City and City employees; (2) conspiracy to
deprive her of equal protection under 42 U.S.C. §
1985(3) by City ...