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Mangum v. Town of Wrightsville Beach

United States District Court, E.D. North Carolina, Southern Division

November 20, 2019

CHRISTOPHER T. MANGUM, individually and d/b/a Wrightsville Beach Jet Ski RENTALS, WRIGHTSVILLE BEACH JET SKI RENTALS, INC., MITCHELL CARSON SEITTER, individually and d/b/a Carolina Coast Watersports, LLC, and CAROLINA COAST WATERSPORTS, LLC, Plaintiffs,
v.
TOWN OF WRIGHTSVILLE BEACH, a North Carolina Corporation and Body Politic, TIMOTHY OWENS, individually, and JOHN WESSELL, individually and in his official capacity as Town Attorney, Defendants.[1]

          ORDER

          LOUISE W. FLANAGAN UNITED STATES DISTRICT JUDGE

         This matter is before the court on defendants' motions to dismiss for lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted, pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). (DE 15, 22). Plaintiffs failed to respond to these motions, and the time for doing so has elapsed. Also before the court is plaintiffs' motion for partial summary judgment (DE 30), defendants' motion to strike (DE 34), and defendants' motion to extend case management order deadlines (DE 36). In this posture, the issues raised are ripe for ruling. For the following reasons, the court grants defendants' motions to dismiss, denies as moot plaintiffs' motion for partial summary judgment and defendants' motion to extend case management order deadlines, and denies as moot in part defendants' motion to strike.

         STATEMENT OF THE CASE

         Plaintiffs initiated this action on February 16, 2019, filing complaint pursuant to 42 U.S.C. § 1983 seeking declaratory judgment, preliminary and permanent injunction, and damages, asserting as follows:

This action challenges the constitutional authority of the Town of Wrightsville Beach to demand a $500.00 non-refundable “appeal fee” from persons requesting appeals of adverse zoning decisions; the Town's authority to enforce zoning ordinances at the N.C. Wildlife Public Boating Access Area, the adjacent [North Carolina Department of Transportation] drawbridge right-of-way and the public trust waters of the adjoining Intracoastal Waterway; and further challenges the lawfulness and constitutionality of the Defendants' enforcement of Town ordinances against Plaintiffs for alleged zoning violations arising out of the use and enjoyment of those public lands and waters by Plaintiffs and customers of their jet ski rental businesses.

(Compl. (DE 1) ¶ 1). More specifically, plaintiffs bring 18 claims against defendant Town of Wrightsville Beach (“Town”), defendant Timothy Owens (“Owens”), the Town manager, and defendant John Wessell (“Wessell”), the Town attorney, based on the above allegations, including claims for violation of plaintiffs' federal constitutional right to freedom of speech, and North Carolina-based claims for civil conspiracy and defamation.

         On May 24, 2019, defendant Wessell filed the instant motion to dismiss, arguing plaintiffs' claims 1) are barred under the Rooker-Feldman doctrine and pursuant to res judicata, 2) currently asserted against defendant Wessell in his official capacity are duplicative of claims asserted against defendant Town, and 3) fail to state a claim upon which relief can be granted. On July 26, 2019, defendants Owens[2] and Town filed the instant motion to dismiss, which incorporates by reference the legal arguments set forth in defendant Wessell's motion to dismiss. Additionally, defendants Wessell and Town argue in the instant motion that res judicata bars plaintiffs Seitter and Carolina Coast Watersports, LLC's (“CCW”) claims because they are in privity with plaintiffs Mangum and Wrightsville Beach Jet Ski Rentals, Inc. (“WBJSR”).

         Plaintiffs failed to respond to defendants' motions. However, on October 23, 2019, plaintiffs moved for partial summary judgment on plaintiffs' first, third, and fourth claims for relief. In support, plaintiffs rely on statement of material facts, memorandum of law, and appendix including a deed of gift and a satellite map of boat access area. Thereafter, defendants moved to strike plaintiffs' motion for partial summary judgment and requested an award of reasonable costs and attorneys' fees. Finally, defendants filed motion to extend case management order deadlines on November 15, 2019.

         STATEMENT OF FACTS

         The facts alleged by plaintiffs as relevant to the instant motions may be summarized as follows.

         For over 17 years, plaintiff Mangum operated plaintiff WBJSR, utilizing the state-owned public boating access area in Wrightsville Beach to launch rented jet skis into the public waterway. (Compl. (DE 1) ¶¶ 13, 25). In or around July 2015, defendant Town began issuing plaintiff Mangum citations with $50.00 civil penalties for alleged zoning violations when he and/or his jet skis were seen in or around the North Carolina Wildlife Commission Public Boating Access Area (“public boating access area”), the adjacent North Carolina Department of Transportation (“DOT”) drawbridge right-of-way, and the adjoining Atlantic Intracoastal Waterway. (Id. ¶ 47). Plaintiffs allege the citations were inconsistent as to which town ordinance gave rise to the violation, did not provide proper notice as required by state law, and specifically did not give notice of defendant Town's policy requiring payment of a nonrefundable $500.00 zoning appeal fee. (Id. ¶¶ 51-53, 55).

         Plaintiff Mangum alleges he refused to pay $500.00 to appeal a $50.00 civil penalty and continued his attempts to appeal each violation by following the procedures set forth on the citations provided to him, which appeals were rejected. (DE 20 at 4 (citing Compl. (DE 1) ¶ 54)). Plaintiffs allege that after initially informing plaintiff Mangum the civil penalties were to be sent for collection under the state debt-setoff procedures, defendant Town filed a lawsuit against him and plaintiff WBJSR in the General Court of Justice, Superior Court Division, of the County of New Hanover (“state court”) to recover the civil penalties and enjoin his use of the aforementioned areas. (Compl. (DE 1) ¶¶ 71, 73-82). Thereafter, plaintiffs Mangum and WBJSR entered into a consent judgment with defendant Town.[3] (Id. ¶¶ 74-76). The consent judgment waived fees associated with plaintiff Mangum's citations and enjoined plaintiff Mangum from “operating a business involving the rental of jet skis in the Town of Wrightsville Beach or in the Town's extraterritorial jurisdiction.” (Id. ¶ 74).

         To mitigate losses resulting from the consent judgment, plaintiff Mangum leased his jet ski equipment to plaintiff Seitter, the owner and operator of plaintiff CCW, and appeared at the public boating access area to “ensure [plaintiff] Seitter safely and properly launched the leased equipment into the intracoastal waterway.” (Id. ¶¶ 90-91). Shortly thereafter, defendant Town began issuing plaintiff Seitter citations for alleged zoning violations. (Id. ¶¶ 93-101). Plaintiff Seitter attempted to appeal these citations, but defendants allegedly failed to timely respond. (Id. ¶¶ 102-105).

         On July 26, 2018, defendant Town filed motion to hold plaintiff Mangum in civil contempt of court, alleging his presence and activity at the public boating access area violated the consent judgment. (Id. ΒΆ 105). On September 10, 2018, the state court entered an order of contempt, concluding that plaintiff Mangum had violated the consent judgment, and ordering plaintiff to ...


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