Opinion
Case No. 00-2490-JWL
May 18, 2001
MEMORANDUM AND ORDER
This case arises out of plaintiff's rental of a self-service storage unit in Lenexa, Kansas. From May 2, 1996 until July 23, 1998, plaintiff stored personal property at the facility owned by the corporate defendants. Defendants sold the contents of plaintiff's storage unit at a public auction on July 23, 1998, asserting a lien on plaintiff's property under the Kansas Self-Service Storage Act ("KSSA"). Plaintiff filed this suit on June 30, 2000, alleging that the actions of defendants violated a number of his statutory and common law rights. Currently before the court is defendants' motion to dismiss, or in the alternative for the entry of summary judgment on, two of plaintiff's claims: (1) plaintiff's claim that defendants violated the Kansas Consumer Protection Act ("KCPA"), 50-623 et seq., and (2) plaintiff's claim that defendants violated his civil rights under 42 U.S.C. § 1983. (Doc. 21). For the reasons stated below, the motion is granted in part and denied in part with respect to plaintiff's KCPA claim, and granted with respect to plaintiff's § 1983 claim. I. Background
Defendants Storage Realty Management Company and Storage Trust Properties, L.P., purchased the storage facility in September 1996. The two later merged under the name Public Storage, Inc. in March 1999. Defendant Ellen J. Miller was the property manager at the storage facility from August 1997 until October 1998; plaintiff does not allege that Ms. Miller has an ownership interest in the facility.
This suit was originally filed in the District Court of Wyandotte County, Kansas. It was removed to this court on October 26, 2000.
Defendants' motion also sought dismissal or summary judgment on plaintiff's claim that defendants violated 42 U.S.C. § 1985, but plaintiff voluntarily withdrew this claim from his Amended Complaint, filed on May 4, 2001.
Defendants have requested oral argument on this motion but the court does not believe that oral argument would materially assist the court. Defendants' request is, therefore, denied. See D. Kan. R. 7.2.
In accordance with the summary judgment standards set forth below, these facts are either uncontroverted or set forth in the light most favorable to plaintiff as the non-moving party.
On May 2, 1996, plaintiff entered into a rental agreement with Four Seasons Self Storage, L.L.C. ("Four Seasons lease") for unit E-38 at 8830 Long, Lenexa, Kansas ("storage facility"). Pursuant to the Four Seasons lease, plaintiff submitted monthly payments to Four Seasons in the amount of $88.00.
Approximately five months after entering into the Four Seasons lease, plaintiff received a form letter dated September 30, 1996 from the chief operating officer of Storage Trust Properties, L.P. ("Storage Trust"). The letter stated that Storage Trust had purchased the storage facility from Four Seasons and directed plaintiff to begin making rental payments to Storage Trust. The letter further stated that
whenever a storage facility changes ownership or management, certain legal requirements must be followed including sending out this notice and having you fill out a new lease. Enclosed is our standard lease which all of our existing and future tenants must sign. In 30 days your old lease will no longer be valid. Therefore, you will need to complete the marked blanks, sign and date this lease, and return it in the enclosed, self-addressed envelope. . . . Your old lease is terminated. The enclosed lease agreement will govern your tenancy in the future.
Plaintiff read the letter until he reached the sentence stating, "Enclosed is our standard lease . . .," at which point plaintiff flipped to the attached document. The document, entitled "Kansas Self-Service Storage Facility Lease," was a preprinted form document containing many blank spaces.
Plaintiff received a second copy of the same form letter dated September 30, 1996, but plaintiff does not recall whether he received it before or after the first form letter. Attached to the second letter was also a document entitled "Kansas Self-Services Storage Facility Lease," but this document had the majority of the blanks-such as for rent and unit number-filled in. Plaintiff did not execute or return either of the Storage Trust leases.
Although plaintiff did not intend to enter into an agreement with Storage Trust, plaintiff began sending payments to Storage Trust in the amount of $88.00 per month, the amount that he thought was due Storage Trust as assignee of or successor in interest to Four Seasons under the Four Seasons lease. Plaintiff had intended to remove his property from the storage facility after he received the September 30, 1996 letter, but plaintiff became ill and decided that he was not physically capable of removing his belongings from the property.
Under the Four Seasons lease, plaintiff's rent was due on the first day of each month. Late fees were assessed as follows: $10.00 if rent was not paid by the fifth day of the month, an additional $10.00 if rent was not paid by the fifteenth day of the month, and an additional $30.00 when rent was thirty or more days delinquent. Under the Storage Trust standard lease, rent was due on the first day of each month. Late fees were assessed as follows: $10.00 if rent was not paid by the first day of the month and $2.00 per day thereafter "until redemption or sale."
When plaintiff paid rent after the first day of each month, Storage Trust assessed plaintiff late fees in accordance with the schedule set forth in its standard lease. Although plaintiff "could not understand the late charges imposed, . . . [plaintiff] was simply too ill to deal with what [he] suspected were overcharges by Storage Trust." In a letter dated June 26, 1998, Storage Trust gave plaintiff "Notice of Default and Intention to Sell at Public Auction." Attached to the letter was a photocopy of the back page of the Four Seasons lease containing provisions concerning the existence and enforcement of a lien against plaintiff's personal property. Plaintiff's property was sold at a public auction on July 23, 1998.
The letter was actually dated "6-26-96," but the parties agree that this was a typographical error.
II. Legal Standards
Defendants argue that the court should dismiss plaintiff's claims under Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted, or alternatively, should grant summary judgment under Fed.R.Civ.P. 56. Plaintiff has treated defendants' motion as a motion for summary judgment and has accordingly submitted a number of exhibits to support his claims. The court finds the exhibits submitted by both parties useful, and it will therefore analyze defendants' motion under summary judgment standards. See Lowe v. Town of Fairland, Oklahoma, 143 F.3d 1378, 1382 (10th Cir. 1998) ("A motion to dismiss for failure to state a claim upon which relief can be granted must be converted into a motion for summary judgment whenever the district court considers matters outside the pleadings. Fed.R.Civ.P. 12(b)(6). As Defendants recognize, courts have broad discretion in determining whether or not to accept materials beyond the pleadings.")
Summary judgment is appropriate if the moving party demonstrates that there is "no genuine issue as to any material fact" and that it is "entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In applying this standard, the court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party. See Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). A fact is "material" if, under the applicable substantive law, it is "essential to the proper disposition of the claim." Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). An issue of fact is "genuine" if "there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way." Id. (citing Anderson, 477 U.S. at 248). Finally, the court notes that summary judgment is not a "disfavored procedural shortcut;" rather, it is an important procedure "designed to secure the just, speedy and inexpensive determination of every action." Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986) (quoting Fed.R.Civ.P. 1).
III. Discussion
Defendants seek the entry of summary judgment in their favor on two of plaintiff's claims: (1) plaintiff's claim that a number of defendants' representations were in violation of the Kansas Consumer Protection Act, and (2) plaintiff's claim that defendants' actions were in violation of his constitutional rights protected by 42 U.S.C. § 1983. As discussed below, the court finds that the majority of defendants' representations did not violate the KCPA, and that defendants' actions did not violate plaintiff's constitutional rights.
A. The Kansas Consumer Protection Act
The first challenge brought by defendants is to plaintiff's claim that defendants violated the Kansas Consumer Protection Act ("KCPA"). Plaintiff's amended complaint sets forth the substance of this claim as follows:
Defendants, and each of them, willfully misrepresented, orally and in writing, (a) that plaintiff owed them rent under a written lease which had never been signed; (b) that plaintiff owed them charges and penalties in addition to rent under such non-existent leases; (c) that defendants were entitled to seize plaintiff [sic] property in the event of default in payment of such charges; (d) that an agreement which no longer had any legal effect governed the parties' legal relationship; (e) that plaintiff was in default; (f) that defendants had the right to change the lock on the storage facility containing plaintiff's property and seize plaintiff's property; (g) that defendants had the right to sell plaintiff's property in the event plaintiffs [sic] failed to pay all charges demanded; (h) that defendants had the right to impose charges connected with the seizure of such property; (i) that defendants had the right to impose charges connected with the sale of such property; (j) that plaintiff could redeem such property by paying all charges defendants were demanding prior to sale; and (k) that other matters too numerous to detail were true when in fact they were false.
Amended Complaint at 15-16. Plaintiff alleges that each of defendants' statements constituted a deceptive act in violation of K.S.A. 50-626, and/or an unconscionable act in violation of K.S.A. 50-627.
Defendants seek summary judgment on this claim under the theory that plaintiff was bound by a written rental agreement executed in accordance with the Kansas Self-Service Storage Act ("KSSA"), such that all of defendants' statements set forth above were true. Defendants assert that a written rental agreement obligated plaintiff to pay rent and late fees, and that the KSSA gave defendants the right to take action upon plaintiff's default of payment. If the statements were true, defendants did not violate the KCPA by committing deceptive or unconscionable acts in making the statements.
Defendants' theory on summary judgment is simply that the statements, if made, were correct because of the existence of a binding rental agreement. Defendants do not argue that the statements, even if false, were not willful. Thus, plaintiff's concern that discovery is not yet complete on the issue of defendants' willfulness will not delay the court's ruling on the summary judgment motion now before it.
In any event, the court notes that, while plaintiff mentions Fed.R.Civ.Pro. 56(f) in his argument that discovery is incomplete, the protections of Rule 56(f) "can be applied only if a party satisfies certain requirements." Price v. Western Res., Inc., 232 F.3d 779 (10th Cir. 2000). "A prerequisite to granting relief . . . is an affidavit furnished by the nonmovant . . . explain[ing] why facts precluding summary judgment cannot be presented." Committee for the First Amendment v. Campbell, 962 F.2d 1517, 1522 (10th Cir. 1992). "This includes identifying the probable facts not available and what steps have been taken to obtain these facts." Id. The affidavit must also "state with specificity why extra time is needed and how the additional time and material will rebut the summary judgment motion." International Surplus Lines Ins. Co. v. Wyoming Coal Refining Sys., Inc., 52 F.3d 901, 905 (10th Cir. 1995) (citing Jensen v. Redevelopment Agency, 998 F.2d 1550, 1554 (10th Cir. 1993)). Mere assertion that discovery is incomplete or that specific facts necessary to oppose summary judgment are unavailable is insufficient to invoke Rule 56(f). Id. (citing Pasternak v. Lear Petroleum Exploration, Inc., 790 F.2d 828, 833 (10th Cir. 1986)). As plaintiff has failed to meet the requirements under Rule 56(f), the court would not have postponed its ruling on Rule 56(f) grounds.
Pursuant to the KSSA, operators of self-service storage facilities in Kansas have a lien upon personal property stored in a leased unit at their facility if the existence of the lien, as well as the consequences of the lien, are disclosed to the unit's occupant in a "rental agreement." K.S.A. 58-816. The Act defines "rental agreement" as "any written statement that establishes or modifies the terms, conditions or rules concerning the use and occupancy of a self-service storage facility." Defendants argue that plaintiff was subject to the terms of either the standard Storage Trust lease or the Four Seasons lease, both of which discuss the existence of defendants' lien on plaintiff's property and both of which qualify as "rental agreements" under the KSSA. Plaintiff responds that he was not bound by either lease at the time of defendants' illegal actions. Thus, the success of defendants' summary judgment theory depends on whether either the standard Storage Trust lease or the Four Seasons lease was a "rental agreement" under the KSSA that bound plaintiff and enabled defendants to truthfully make the representations set out above.
In determining whether or not plaintiff was bound by the terms of a valid lease, the court applies Kansas law where available. Where the court has found no Kansas law on point, the court follows general principles of contract law set forth in the Restatement (Second) of Contracts (1979) and Corbin on Contracts (1993), and general principles of landlord-tenant law set forth in Am.Jur.2d (1995); all three authorities are often relied upon by Kansas courts for the statement of general legal principles.
• The Standard Storage Trust Lease
The court first examines whether or not plaintiff was bound by the standard Storage Trust lease which defendants attached to the September 30, 1996 letter. Defendants notified plaintiff in the September 30, 1996 letter that his lease with Four Seasons was "terminated" and would "no longer be valid" after thirty days. Defendants then offered to enter into a new lease with plaintiff-the attached standard Storage Trust lease. See Kansas Power Light Co. v. Burlington Northern R.R., 740 F.2d 780, 786 (10th Cir. 1984) (applying Kansas law) ("An offer is an act that reasonably leads the offeree to believe that a power to create a contract has been conferred upon him."). Plaintiff read the attached lease, but neither signed it, nor returned it to Storage Trust. Defendants argue, however, that plaintiff was nonetheless bound by the attached lease because he performed thereunder by paying rent to Storage Trust and by accepting the benefits of storing his personal property at defendants' facility. Without conceding that his actions were consistent with performance under the standard Storage Trust lease, plaintiff responds that he could not have accepted defendants' offer to enter into a new lease by performing thereunder, as Storage Trust prescribed a different specific method of acceptance. The court agrees with plaintiff, and holds that plaintiff was not bound by the terms of the standard Storage Trust lease.
Plaintiff claims that defendants mailed him two versions of the standard Storage Trust lease-one with no blank spaces filled in and the other with blank spaces for essential terms (such as rent and unit location) filled in. Since the more complete lease has a better chance of being found enforceable, it will be the focus of the court's discussion.
The law is well settled that "[i]f an offer prescribes the place, time or manner of acceptance, its terms in this respect must be complied with in order to create a contract." Restatement (Second) of Contracts § 60 (1979); 1 Corbin on Contracts § 3.34, (1993) ("The offeror creates the power of acceptance and has control over the character and extent of the power."). In this case, the offer made in the September 30, 1996 letter limited the manner of acceptance to plaintiff signing the proposed standard Storage Trust lease. The letter stated: "Enclosed is our standard lease which all of our existing and future tenants must sign. . . . Therefore, you will need to complete the marked blanks, sign and date this lease, and return it in the enclosed, self-addressed envelope." The attached lease itself further prescribed acceptance of its terms to plaintiff's signature, stating: "Owner and Occupant hereby agree, as evidenced by their respective signatures that . . . [they] will abide by the terms, conditions, and covenants herein set forth." Plaintiff took no steps to accept the offer to enter into a new lease in the manner required by Storage Trust's offer-he did not sign or return the standard Storage Trust lease. Manifestations of plaintiff's acceptance of the offer by performance, if any, did not conform to the manner of acceptance prescribed in the offer and were ineffective to create a contract that bound plaintiff. Accordingly, the court will go on to examine whether plaintiff was bound instead under the terms of the Four Seasons lease.
Although offers that merely suggest, rather than prescribe, the manner of acceptance may be accepted by other reasonable methods (such as performance), the court finds that Storage Trust's use of terms such as "must sign" and "need to . . . sign" in discussing the manner of acceptance, as well as the language in the proposed lease itself that the agreement is "evidenced by their respective signatures," clearly limited acceptance to plaintiff's signature.
The cases cited by defendants for the proposition that a party who accepts the benefits of a contract and performs under a contract is thereby bound by the contract did not involve situations in which the manner of acceptance was limited by the offeror. See, e.g., Thurman v. Trim, 433 P.2d 367 (Kan. 1967) (enforcing specific performance of lease where description of real property ambiguous); Rogers v. Dumas, 203 P.2d 165 (Kan. 1949) (successors in interest to landlord who did not sign lease were estopped from relying on the statue of frauds to defeat rights of lessees); Commercial Asphalt v. Smith, 409 P.2d 796 (Kan. 1966) (performance by the party not bound in a unilateral contract cures the contract's lack of mutuality); Crouch v. Marrs, 430 P.2d 204 (Kan. 1967) (where offer did not limit manner of acceptance, offeree's performance created a contract).
• The Four Seasons Lease
Defendants assert that, even if plaintiff was not directly bound by the standard Storage Trust lease, he was nevertheless bound by the terms of his original lease with Four Seasons, as modified by the terms of the Standard Storage trust lease. Plaintiff concedes that he "did, in fact, have a written Rental Agreement with Four Seasons Self Storage . . . [and that] when Storage Trust acquired the self-service storage facility located at 8830 Long, Lenexa, Kansas, from Four Seasons, Storage Trust obtained all the rights and liabilities associated with Plaintiff Swanson's then-existing lease." (Doc. 37 at 13-14). Plaintiff argues, however, that his obligations under the Four Seasons lease ended when Storage Trust gave notice in the September 30, 1996 letter that it was terminating the lease. While the court agrees that the September 30, 1996 letter served to terminate the Four Seasons lease, the court finds that plaintiff remained subject to its terms as a holdover tenant.
Following receipt of the September 30, 1996 letter terminating the Four Seasons lease, plaintiff took no steps to remove his personal property from the rented storage unit. "A tenant who does not abandon or relinquish the premises after the lease expires or is lawfully declared terminated by the lessor, but who remains in possession, is holding over." 49 Am.Jur.2d § 354 (1995). The parties expressly provided for this situation in the rental agreement as follows:
If Tenant elects to hold over or for any reason fails to remove his/her property from the Space after the term of this Agreement, then this Agreement shall be automatically renewed, on a month-to-month basis. In the event this Agreement is extended or renewed, it is expressly agreed that the covenants and terms of this Agreement shall remain in full force and effect.
When an express provision in the lease sets out the terms of the parties' relationship upon the tenant's holdover, the provision will govern and take the place of any presumption of tenancy otherwise provided by law. 49 Am.Jur.2d § 368 (1995). Under the holdover provision, plaintiff remained bound to the terms of the Four Seasons lease when he failed to remove his property from the rented storage unit following his receipt of the September 30, 1996 letter.
Because the parties to the lease specifically agreed that a month-to-month tenancy would arise upon holdover, a tenancy at sufferance (as that term is normally understood) was not created, contrary to plaintiff's assertion. Even without the express agreement of the parties, a landlord's acceptance of rent in recognition of a tenant's continued tenancy is typically presumed to give rise to a month-to-month or year-to-year tenancy, rather than a tenancy at sufferance. 49 Am. Jur.2d §§ 369,373, 374.
This is also consistent with the general rule that "when a tenant holds over his term with the consent of the landlord, express or implied, the law implies a continuation of the original tenancy upon the same terms and conditions." Becker v. McFadden, 561 P.2d 416, 419 (Kan. 1977). See also Restatement (Second) of Property § 14.7 (1977) ("[T]he legal relationships of the landlord and tenant during the period in which the tenant improperly holds over after the termination of the lease are the same as during the period of the lease.").
While finding that plaintiff remained bound by the terms of the Four Seasons lease, the court does not go so far as to find that the terms of that lease where modified by the terms of the standard Storage Trust lease, as defendants argue. Paragraph 18 of the Four Seasons lease bound plaintiff to the possibility that the terms of that lease could change:
All terms of this Agreement, including without limitation, monthly rental, conditions of occupancy and charges are SUBJECT TO CHANGE UPON THIRTY (30) DAYS PRIOR WRITTEN NOTICE to tenant. If changed, the Tenant may terminate this Agreement by giving Lessor TEN (10) DAYS WRITTEN NOTICE prior to the end of the last month of tenancy. If the Tenant does not give such notice, the change shall become effective and apply to his/her occupancy.
Defendants assert that the September 30, 1996 letter served as written notice, pursuant to paragraph 18, that the terms of the Four Seasons lease were changed to the terms of the standard Storage Trust lease. The court does not agree. As discussed above, the September 30, 1996 letter gave plaintiff notice that Storage Trust was cancelling the Four Seasons lease; it did not state Storage Trust's desire to change the terms of that lease. Likewise, Storage Trust offered to enter into a new lease with plaintiff, but it did not notify plaintiff it was simply changing the terms of the Four Seasons lease to the terms offered in the standard Storage Trust lease. In short, the language in the September 30, 1996 letter did not contemplate keeping the Storage Trust lease alive, let alone under modified terms, and no reasonable person reading the letter should be deemed to have construed it as a mere notice of change under paragraph 18.
In light of the fact that plaintiff was bound by the original terms of the Four Seasons lease, the court must now consider whether defendants' representations to plaintiff-set out above at supra pages 6-7-were correct, such that defendants did not violate the KCPA. While the court cannot say that defendants' representation regarding "charges and penalties in addition to rent" that plaintiff owed them was correct, the undisputed facts convince the court that no reasonable finder of fact could find defendants liable under the KCPA for the remaining representations listed.
It was defendants' contention that plaintiff was obligated to pay them the charges and late fees set out in the standard Storage Trust lease. The court has determined, however, that plaintiff was actually bound to pay defendants the less severe fees set out in the Four Seasons rental agreement. Accordingly, any representations by defendants' that plaintiff owed them fees in accordance with the standard Storage Trust were incorrect. The court notes that it does not necessarily follow from this holding that defendants violated the KCPA, but simply that the court cannot definitively say that defendants did not violate the KCPA, as defendants ask it to do.
Although plaintiff does not specifically plead in his amended complaint that defendants' alleged misrepresentations regarding "charges and penalties in addition to rent" were related to what plaintiff would have owed if obligated to the terms of the standard Storage Trust lease, the invoices attached to plaintiff's amended complaint, showing that defendants charged plaintiff late fees in accordance with the standard Storage Trust lease, clarify plaintiff's pleadings.
As to defendants' statement about rent owed, plaintiff was obligated to pay the same amount of rent under both the proposed standard Storage Trust lease and the Four Seasons lease. Thus, defendants' statement that plaintiff "owed them rent under a written lease" was true and not a violation of the KCPA.
Plaintiff's contention that a lessor's cancellation of an agreement terminates the lessee's liability to pay rent in the future, while true generally, is not applicable when the parties agree otherwise, or when the lessee holds over with the consent of the lessor, as discussed above.
The remaining representations made by defendants were that they had a lien on plaintiff's property and that the lien entitled them to certain rights under the lease agreement and the KSSA. Plaintiff admits that the Four Seasons lease was a "rental agreement" as defined in the KSSA. (Doc. 37 at 13). In accordance with K.S.A. 58-814, the lease was a written statement setting forth the terms and conditions governing plaintiff's use of the storage facility. Moreover, it met all of the requirements prescribed by K.S.A. 58-816, stating the existence of the operator's lien on plaintiff's property and discussing defendants' right to sell the property if plaintiff defaulted on his obligations under the lease. Consequently, defendants correctly informed plaintiff that they had the right to execute their lien and to sell the property in plaintiff's storage unit upon plaintiff's default of his obligations under the terms of the Four Seasons lease. The court is careful to note that it has not been asked to determine, and does not here determine, that defendants correctly followed the procedure mandated by the KSSA in enforcing their lien. The court simply finds that defendants' statements to plaintiff regarding their rights under the KSSA were not false and deceptive in violation of the KCPA.
The court therefore denies summary judgment on plaintiff's KCPA claim as it relates to defendants' representation that plaintiff owed them charges and penalties in addition to rent, and grants summary judgment as it relates to all other of defendants' representations.
The second challenge brought by defendants is to plaintiff's claim that defendants deprived him of his constitutional due process rights protected by 42 U.S.C. § 1983. Section 1983 provides a remedy for "the deprivation of any rights, privileges, or immunities secured by the Constitution and laws" by any person acting "under color of any statute, ordinance, regulation, custom, or usage, of any State." Plaintiff claims that defendants, acting under color of the KSSA, deprived plaintiff of his property without due process of law when they confiscated and sold the contents of the leased unit.
"Because a due process violation was alleged, and because the Due Process Clause protects individuals only from governmental and not from private action, plaintiff [must] demonstrate that the sale of [his] goods was accomplished by state action." Lugar v. Edmondson Oil Co., 457 U.S. 922, 930 (1982) (discussing Flagg Brothers, Inc. v. Brooks, 436 U.S. 149 (1978)). The Tenth Circuit has recognized four tests applied by the Supreme Court for determining whether there has been "state action" for the purposes of § 1983: (1) the nexus test, (2) the symbiotic relationship test, (3) the joint action test, and (4) the public function test. See Gallagher v. "Neil Young Freedom Concert," 49 F.3d 1442 (10th Cir. 1995). Plaintiff proceeds under the public function test, which declares that "[i]f the state delegates to a private party a function traditionally exclusively reserved to the State, then the private party is necessarily a state actor." Id. at 1456 (internal citations omitted). Plaintiff contends that in creating a lien under the KSSA, Kansas delegated to self-service storage operators the right to deprive occupants of their property, which is "typically a state function." Amended Complaint at 21. Plaintiff argues that prior to the passage of the KSSA, operators of self-service storage facilities "had no right to possessory liens," but rather, "were relegated to [bringing] forcible detainer actions" in state courts. (Doc. 37 at 42). Thus, whether or not defendants were state actors when they sold plaintiff's property turns on whether providing a remedy to operators of storage facilities is "a function traditionally exclusively reserved to the state."
As part of his § 1983 claim, plaintiff pleads "in the alternative, the Self-Storage Act, K.S.A. 58-813, et seq, is unconstitutional as violating the safeguards against deprivation of property without due process of law." The Supreme Court has held that where an individual "challenges the state statute as procedurally defective under the Fourteenth Amendment," § 1983 may only apply if the individual can demonstrate that state action has occurred. Lugar, 457 U.S. at 941. Whether state action occurred when defendants executed a lien created by the KSSA will be addressed below.
The Supreme Court rejected a similar theory in Flagg Brothers Inc. v. Brooks, 436 U.S. 149 (1978). In Flagg Brothers, the respondents argued that a New York state statute which gave a warehouseman a right to execute a lien on stored goods delegated a function which had traditionally been that of the state-the resolution of private disputes. 436 U.S. at 157. Finding no state action, the Court noted that "[w]hile many functions have been traditionally performed by governments, very few have been exclusively reserved to the State." Id. Traditional state functions which the Supreme Court has found to also satisfy the "exclusivity" test include the administering of elections of public officials, Terry v. Adams, 345 U.S. 461 (1953), and the operation of a company-owned town, Marsh v. Alabama, 326 U.S. 501 (1946). The Court distinguished these functions from the proposed sale under the New York state lien statute, stating that the various state statutory and common law remedies under which the parties could have resolved "this purely private dispute . . . can hardly be said to have delegated to [defendant] an exclusive prerogative of the sovereign." Id. at 160. The Court went on to observe that "the settlement of disputes between debtors and creditors is not traditionally an exclusive public function." Id. at 161.
Under the rationale in Flagg Brothers, the court finds that the passage of the KSSA did not delegate to defendants a function that was the "exclusive prerogative of the sovereign." The lien created in a self-service storage operator under the KSSA is virtually identical to the lien created in a warehouseman under the New York statute at issue in Flagg Brothers. Unlike the extraordinary cases, such as Terry and Marsh, in which the Supreme Court found the delegation of a state function to a private actor, neither statute provides the exclusive method under which the parties can resolve their disputes. For example, the parties in this case could have privately contracted for the same rights and obligations recognized by the lien statute. While plaintiff may or may not be correct in his assertion that the right to deprive occupants of self-service storage facilities of their property was a typical state function, historically pursued in forcible detainer actions, plaintiff has presented no evidence that the right was an exclusive state function.
In Flagg Brothers, the Court recognized that resolution of a dispute between a warehouseman and occupants of a warehouse was typically resolved in state court under various state statutes, but this did not lead the Court to find the resolution to be an exclusive state function.
Plaintiff attempts to distinguish the instant case from Flagg Brothers by noting that the self-service storage facility operator's statutory lien, unlike the warehouseman's statutory lien, has no precedent in common law. Whether or not the statute delegated a function traditionally exclusively reserved to the state-not whether or not the statute had precedent at common law-however, was the deciding factor in the Court's decision. If Flagg Brothers were as easily distinguished as plaintiff asserts, a private actor's violation of any state statute not premised on a common law right would give rise to a § 1983 cause of action, even when no state officials are involved in the violation. That is clearly not the type of "state action" contemplated by the civil rights statute. Summary judgment is entered on this claim in favor of defendants.
IT IS ACCORDINGLY ORDERED that Defendants' Motion to Dismiss or, Alternatively, for Summary Judgment (Doc.21) is granted in part and denied in part as to plaintiff's claim that defendants violated the Kansas Consumer Protection Act. It is denied as it relates to defendants' representation to plaintiff that plaintiff owed them charges and penalties in addition to rent, and it is granted as it relates to all other of defendants' representations. Defendants' Motion to Dismiss or, Alternatively, for Summary Judgment (Doc.21) is granted as to plaintiff's claim that defendants violated his due process rights protected by 42 U.S.C. § 1983.
IT IS SO ORDERED.