Opinion
Civil Action No. 1:99cv352-D-D
July 7, 2000
OPINION
Before the court is the motion of Defendant City of Baldwyn, Mississippi, for summary judgment, or alternatively, to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Upon due consideration, the court finds that the motion should be granted.
The Defendant has submitted extensive memoranda and extraneous materials in support of the instant motion. It is entirely within the discretion of the court to accept material outside the pleadings when ruling on a motion to dismiss and, therefore, convert the motion into one for summary judgment. Ware v. Associated Milk Producers, Inc., 614 F.2d 413 (5th Cir. 1980); Bolton v. United States, 604 F. Supp. 1219, 1220 (S.D.Miss. 1985). Should the court decide to accept the extraneous material, it must then treat the matter as one for summary judgment. Carter v. Stanton, 405 U.S. 669, 671, 92 S.Ct. 1232, 1234, 31 L.Ed.2d 569 (1972). Thus, because the Plaintiff has submitted no supporting material and because the court is able to make a complete and rational determination absent this documentation, the court shall construe the Defendant's motion as one for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure.
The instant motion was filed approximately five months after the Defendants served an Answer to Plaintiff's Complaint. Because a Rule 12(b) motion must be filed before responsive pleadings, the Defendant's motion is untimely. Rule 12(c) motions, however, may be filed after the pleadings are closed. Such motions shall be treated as a motion for judgment on the pleadings based on a failure to state a claim on which relief may be granted. See Jones v. Greninger, 188 F.3d 322, 324 (5th Cir. 1999) (citing National Ass'n of Pharm. Mfrs. v. Ayerst Lab., 850 F.2d 904, 909 n. 4 (2d Cir. 1988)).
Factual and Procedural History
Plaintiff, Joe Murray Davis originally filed this cause of action on November 1, 1999, in the Circuit Court of Lee County, Mississippi, against Robert Coggins (Coggins) and the City of Baldwyn, Mississippi. Davis alleged, inter alia, that the Defendants' actions in removing certain items of personal property, dilapidated automobiles and similar rubbish, from his property on July 30-31, 1998, violated his procedural and substantive due process rights and constituted a taking without just compensation. Plaintiff did not appeal the decision of the City or seek any other available state remedy regarding the status of his property.
On November 15, 1999, Coggins and the City of Baldwyn filed a Notice of Removal on the basis of federal question jurisdiction. On May 15, 2000, the parties entered an agreed stipulation of dismissal as to Defendant Robert Coggins, leaving the City of Baldwyn as the sole Defendant in this cause.
Discussion A. Failure to Comply with Local Rules
Under Rule 7.2(D) of the Uniform Local Rules of the United States District Courts for the Northern District of Mississippi and the Southern District of Mississippi, "counsel for respondent shall submit the original and one copy of a memorandum of authorities in reply [to a motion or application for relief], and shall do so within ten days after service of movant's memorandum." The certificate of service attached to Defendant's motion indicates that the motion was served on May 17, 2000. On May 24, 2000, the Plaintiff filed a two-page response to Defendant's motion categorically denying Defendant's contentions, but failed to submit any memorandum of authorities. Approximately one month later, the court contacted counsel for Plaintiff, instructed that Plaintiff submit a memorandum, and granted additional time within which to respond, to no avail. The Plaintiff has yet to file any substantive opposition to the motion, or request an extension of time in which to file a memorandum. Local Rule 7.2(D) also provides that "[i]f a party fails to respond to any motion other than a motion for summary judgment within the time allotted, the court may take the motion as confessed." Therefore, treating the Defendant's motion as one to dismiss, the court may properly grant Defendant's relief as unopposed. In the interest of judicial economy, however, the court will address the merits of the Defendant's motion.
Judgment on the Pleadings Standard
A motion for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure is subject to the same standard as a Rule 12(b)(6) motion to dismiss. Resolution Trust Corp. v. Scott, 887 F. Supp. 937, 940 (S.D.Miss. 1995) (quoting Thomason v. Nachtrieb, 888 F.2d 1202, 1204 (7th Cir. 1989)). Therefore, viewing all of the facts in a light most favorable to the non-moving party, the district court may only grant the motion if it is beyond doubt that the non-movant can plead no facts that would support his claim for relief. Id. If, however, a required element, a prerequisite to obtaining the requested relief, is lacking in the complaint, dismissal is proper. Clark v. Amoco Prod. Co., 794 F.2d 967, 970 (5th Cir. 1986). The district court may not look beyond the pleadings, and all uncontested allegations to which the parties had an opportunity to respond are taken as true. Resolution Trust Corp., 887 F. Supp. at 940 (quoting Flora v. Home Fed. Sav. Loan Ass'n, 685 F.2d 209, 211 (7th Cir. 1982)). The court may, however, take into consideration documents incorporated by reference to the pleadings and may take judicial notice of matters of public record. Resolution Trust Corp., 887 F. Supp. at 940 (citing Goldman v. Belden, 754 F.2d 1059, 1065-66 (2d Cir. 1985); State of Louisiana v. United States, 656 F. Supp. 1310, 1314 n. 6 (W.D.La. 1986)).
C. Constitutional Claims
Plaintiff brought suit under 42 U.S.C. § 1983, alleging that his property had been taken without just compensation in violation of the Fifth and Fourteenth Amendments, that he was deprived of property without due process of law, that the Defendant's actions were arbitrary, capricious, and upon an unequal basis, as well as state law claims for trespass and conversion.
Defendant's principal contention is that the Plaintiff cannot maintain an action in federal court for review of a decision by a municipality where the remedies provided by state statute are adequate.
It is well-settled that a Fifth Amendment takings claim is not ripe until the owner of the property has pursued state law judicial remedies and been denied just compensation. Williamson County Reg'l Planning Comm'n v. Hamilton Bank, 473 U.S. 172, 193 n. 13, 105 S.Ct. 3108, 3120 n. 13, 87 L.Ed.2d 126 (1985); Samaad v. City of Dallas, 940 F.2d 925 (5th Cir. 1991). Because the Fifth Amendment proscribes takings without just compensation, no constitutional violation occurs until compensation has been denied. Id. It is the denial of compensation, not the taking of the property, which triggers the right to bring a cause of action under the Fifth Amendment. Herrington v. City of Pearl, 908 F. Supp. 418, 424 (S.D.Miss. 1995).
Mississippi Code Annotated section 11-51-75 provides that any person aggrieved by a decision of municipal authorities of a city, town, or village, may appeal such decision to the Circuit Court by filing a Bill of Exceptions. To date, the Plaintiff has failed to pursue an appeal of any decision of the City of Baldwyn. Although Plaintiff originally filed this cause in the Circuit Court of Lee County, the case was not filed as a Bill of Exceptions. Accordingly, since a plaintiff's Fifth Amendment takings claim is not ripe until the owner of the property has pursued state law judicial remedies and been denied just compensation, the court finds that the Plaintiff's takings claim should be dismissed.
The remaining federal claims asserted by the Plaintiff should likewise be dismissed. Merely attaching a "due process" or "equal protection" label to a property dispute does not raise a substantial federal question in the absence of allegations of a violation of the Plaintiff's fundamental constitutional rights. See Chiplin Enters. v. City of Lebanon, 712 F.2d 1524, 1527-1528 (1st Cir. 1983); Creative Env'ts Inc. v. Estabrook, 680 F.2d 822, 833 (1st Cir. 1982).
In Creative Environments, the First Circuit held that it is not enough simply to give state law claims constitutional labels such as "due process" or "equal protection" in order to raise a substantial federal question under § 1983. A plaintiff may quite possibly have state law claims on the facts alleged. If so, there appear to be adequate state law remedies to vindicate these claims without resort to a federal court.
Moreover, Plaintiff's other causes of action flow from the takings claim and would not exist but for the alleged taking. Thus, the court finds that in the absence of a properly filed takings claim, the remaining constitutional claims may not be pursued. Furthermore, if Plaintiff desired to provide substantive bases to support his allegations, he would have filed a supporting memorandum as instructed by the court. Second, all other claims asserted by the Plaintiff are brought pursuant to state law, and therefore, are not properly before this court in the absence of any viable federal claim. A district court may decline to exercise supplemental jurisdiction over a claim if the court has dismissed all claims over which it had original jurisdiction. 28 U.S.C. § 1367(c)(3). For this reason as well, the court finds that the remainder of the Plaintiff's claims should be dismissed without prejudice.
Additionally, the court strongly advises that counsel for the Plaintiff familiarize himself with this court's local rules and with the consequences of failing to follow court orders. In the future, similar displays of unprofessional conduct will not be met with such benevolence.
For the foregoing reasons, the court finds that the Defendant's motion to dismiss should be granted. A separate order in accordance with this opinion shall issue this day.
This the ___ day of July 2000.
ORDER
Pursuant to an opinion issued this day, it is hereby ORDERED that:
the Defendant's motion to dismiss is GRANTED;
the Plaintiff's federal claims are DISMISSED WITHOUT PREJUDICE;
the Plaintiff's state law claims are DISMISSED WITHOUT PREJUDICE; and
this case is closed.
SO ORDERED, this the _____ day of July 2000.