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Eblen v. City of Kansas City

United States District Court, W.D. Missouri, Western Division

July 18, 2018

CAROL J. EBLEN, Plaintiff,
v.
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

          GREG KAYS, CHIEF JUDGE

         Pro se 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.

         Now 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 proceedings.[1]

         Background

         Taking Plaintiff's allegations as true and drawing all reasonable inferences in her favor, the Court finds the facts to be as follows.

         Plaintiff 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. Id.

         Prior 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 ¶ 1.[2]

         As a 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.

         Plaintiff 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.[3] 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.

         On January 31, 1983, Plaintiff paid $3, 848.60, her portion of the special assessment, and signed a sewer easement to the City.

         Construction 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.

         Plaintiff 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, 11.

         Plaintiff alleges that the public contract[4] 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.

         In 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.

         From 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.

         From 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.

         Plaintiff 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.

         Plaintiff 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.

         In 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.

         Plaintiff 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 ...


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