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LMSP, LLC v. Town of Boone

United States District Court, W.D. North Carolina, Statesville Division

September 29, 2017

LMSP, LLC, a North Carolina Limited Liability Company; NICHOLAS A. GELLER; CHANDLER CLARK; AND JAMES COOK; Plaintiff,
v.
TOWN OF BOONE, a body politic, and DANA CRAWFORD, individually, Defendant.

          ORDER

          Frank D. Whitney Chief United States District Judge.

         This matter is before the Court on the Motion to Dismiss (Doc. No. 7) filed by Defendants Town of Boone and Dana Crawford. The parties fully briefed that motion (Docs. Nos. 10, 13). With the Court's permission (Doc. No. 19), the parties filed supplemental pleadings (Docs. Nos. 20, 21, 22), and the motion is now ripe. For the reasons that follow, the Court GRANTS Defendants' Motion to Dismiss.

         I. Background

         Plaintiffs originally filed this action in the General Court of Justice, Superior Court Divison, Watauga County. (Doc. No. 1-1). Defendants subsequently removed the action to this Court based on federal question jurisdiction. (Doc. No. 1). The allegations in the verified[1]Complaint are fairly straightforward. Plaintiff LMSP is a North Carolina Limited Liability Company whose primary business is the immobilization of vehicles wrongfully parked in parking lots and spaces. LMSP contracts with real property owners to monitor their parking lots for trespassing vehicles. LMPS employed the individual Plaintiffs Geller, Clark, and Cooke as subcontractors who immobilize the vehicles and collect money for the illegally parked vehicles.

         Plaintiffs contend Defendant Crawford, the Police Chief for the Town of Boone Police Department, improperly enforced three ordinances found in Chapter 73 of the Boone, North Carolina Code of Ordinances: Chapter 73.09 Signs or notifications required before parking control devices or methods may be utilized in lots; Chapter 73.10 Operational requirements or person involved in the use of parking control devices or methods in parking lots or spaces; and Chapter 73.99 Penalty (collectively, “Ordinances”).[2]

         Specifically, Plaintiffs allege Crawford ordered his law enforcement officers to perform surveillance on Plaintiff Cooke, while he was performing his duties for LMSP. Plaintiffs contend the Boone Police Department “sent a citizen over to initiate a confrontation with Plaintiff Cooke in regards to the immobilization of [a] woman's car, ” whereby “an altercation ensued.” (Doc. No. 1-1, p. 3). Plaintiffs' complaint is void of any reference to what occurred during the “altercation.” Their Complaint simply says, as a result of the altercation, Plaintiff Cooke now has a “case [that] continues through the court system, ” and as such, “the Town of Boone has not allowed him to continue his occupation . . . as a vehicle immobilizer.” Id.

         Plaintiffs also contend the Boone Police Department, on two occasions, improperly issued citations to Plaintiffs Clark and Geller based on improper interpretations of the Ordinances requiring insignia on vehicles engaged in immobilization. Plaintiffs contend an unidentified “principal” for LMSP met with the Town of Boone Manager and Defendant Crawford to discuss the enforcement of Ordinances, who agreed that, in certain circumstances, immobilizer vehicles do not need to bear an insignia. (Doc. No. 1-1, p. 4).

         Plaintiffs' complaint here sues both the Town of Boone and Defendant Crawford, in his official and individual capacities, asserting multiple causes of action related to the above instances and the Town of Boone's enforcement of the Ordinances for alleged violations of both the United States and North Carolina Constitutions, violations of 42 U.S.C. § 1983, negligence, and malicious prosecution. Plaintiffs also seek to enjoin the Town of Boone from enforcing portions of the Ordinances. Defendants have moved, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, to dismiss all claims against them. While the motion to dismiss was pending, the Town of Boone enacted an Amended Chapter 73 (“Amended Ordinances”), which revised and replaced each of the three Ordinance provisions challenged by Plaintiffs. Defendants supplemented their motion to dismiss arguing the Amended Ordinances mooted Plaintiffs' claims, and Plaintiffs responded.

         II. Standard of Review

         Defendants' motion to dismiss requires this Court to consider whether Plaintiffs' complaint, on its face, articulates plausible claims upon which relief can be granted. The standard to review a motion challenging the sufficiency of the complaint is well-settled, particularly as the Fourth Circuit has explained application of Supreme Court precedent:

[T]Supreme Court has brought to the forefront the Federal Rules' requirements that permit courts to evaluate complaints early in the process. Thus, in Iqbal, the Court stated that “[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.' ” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (emphasis added) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The plausibility standard requires a plaintiff to demonstrate more than “a sheer possibility that a defendant has acted unlawfully.” Id. It requires the plaintiff to articulate facts, when accepted as true, that “show” that the plaintiff has stated a claim entitling him to relief, i.e., the “plausibility of ‘entitlement to relief.'” Id. (quoting Twombly, 550 U.S. at 557).
To emphasize the Federal Rules' requirements for stating claims that are warranted and therefore form a plausible basis for relief, the Supreme Court has held that a complaint must contain “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555. To discount such unadorned conclusory allegations, “a court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth.” Iqbal, 556 U.S. at 679. This approach recognizes that “naked assertions” of wrongdoing necessitate some “factual enhancement” within the complaint to cross “the line between possibility and plausibility of entitlement to relief.” Twombly, 550 U.S. at 557 (internal quotation marks omitted).
At bottom, determining whether a complaint states on its face a plausible claim for relief and therefore can survive a Rule 12(b)(6) motion will “be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not ‘show[n]'-‘that the pleader is entitled to relief, ' ” as required by Rule 8. Iqbal, 556 U.S. at 679 (alteration in original) (citation omitted) (quoting Fed.R.Civ.P. 8(a)(2)). The Court noted that even though Rule 8 “marks a notable and generous departure from the hyper-technical, codepleading regime of a prior era, . . . it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.” Id. at 678-79.

Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009). Bearing these principles in mind, the Court turns to each cause of action asserted in the Complaint: (1) Plaintiff Cooke's claim against Defendant Town of Boone for substantive due process violations under the Fourteenth Amendment of the United States Constitution and the North Carolina Constitution; (2) Plaintiffs' claim against Town of Boone and Crawford, in his official capacity, for negligence; (3) Plaintiff Geller's claim against Crawford in his individual capacity for malicious prosecution; (4) Plaintiff Clark's claim against Crawford in his individual capacity for malicious prosecution; (5) Plaintiff LMSP's claim against Town of Boone for substantive due process violations under the Fourteenth Amendment of the United States Constitution and the North Carolina Constitution; (6) Plaintiff LMSP's claim against Town of Boone for violation of the Equal Protection Clause; (7) Plaintiffs' claim against Town of Boone for violation of the North Carolina Constitution Article I, Section I and N.C. Gen. Stat. § 160A-174; (8) Plaintiff LMSP's claim against Town of Boone for violation of the First Amendment of the United States Constitution as applied to North Carolina by the Fourteenth Amendment; (9) Plaintiff Geller's claim against Crawford in his individual capacity for violation of 42 U.S.C. § 1983; (10) Plaintiff Clark's claim against Crawford in his individual capacity for violation of 42 U.S.C. § 1983; (11) Plaintiff Clark's and Geller's claim against Town of Boone for violation of 42 U.S.C. § 1983; (12) Plaintiff Cooke's claim against Town of Boone for violation of the North Carolina Constitution Article I, Section I and N.C. Gen. Stat. § 160A-174; and (13) declaratory judgment finding certain Town of Boone ordinances violate Plaintiffs' constitutional rights and exceed the statutory scope and authority.

         III. Analysis

         A. Claims under the United States and North Carolina Constitutions

         The Court notes at the outset the Town of Boone enacted the Amended Ordinances on January 19, 2017, after the filing of this action and following the filing of Defendants' initial motion to dismiss. Plaintiffs never objected to supplemental briefing on these Amended Ordinances; accordingly, the Court permitted supplemental pleadings as to the impact on Plaintiffs' claims. In response to Defendants' supplemental memorandum, Plaintiffs do not contest the authenticity of the Amended Ordinances and concede the amendments “drastically altered the rules governing Plaintiffs' business operations including completely changing some rules including signage, warning and convictions.” (Doc. No. 22, pp. 1-2). Furthermore, Plaintiffs recognize several portions of their causes of action were mooted by removal of the “offending section of the ordinance, ” but argue their claims survive because Plaintiff seeks monetary damages.

         Mootness is primarily a function of the Article III “case or controversy” limitation on the jurisdiction of the Federal courts. However, because of the possibility of reenactment of an ordinance, “mere amendment or repeal of a challenged ordinance does not automatically moot a challenge to that ordinance.” Am. Legion Post 7 of Durham, N.C. v. City of Durham, 239 F.3d 601, 605 (4th Cir. 2001) (citation omitted).

The Supreme Court has held that in some circumstances, the repeal or amendment of a statute moots a challenge even where re-enactment of the statute at issue is within the power of the legislature. See Massachusetts v. Oakes, 491 U.S. 576, 582, 109 S.Ct. 2633, 105 L.Ed.2d 493 (1989) (holding that the amendment of a law prohibiting nude photography of minors mooted First Amendment overbreadth challenge to law); Kremens v. Bartley, 431 U.S. 119, 132, 97 S.Ct. 1709, 52 L.Ed.2d 184 (1977) (holding that the repeal of a statute permitting involuntary commitment of juveniles mooted challenge to statute). The practical likelihood of reenactment of the challenged law appears to be the key to the Supreme Court's mootness jurisprudence in situations such as this one. See Erwin Chemerinsky, Federal Jurisdiction 139 (3d ed.1999) (summarizing the Supreme ...

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