United States District Court, S.D. Indiana, Indianapolis Division
NANCY A. DAW, STEPHEN L. HOBACK, Plaintiffs,
CONSOLIDATED CITY OF INDIANAPOLIS AND MARION COUNTY, Defendant.
Jane Magnus-Stinson, Chief Judge
case arises out of a property dispute between pro se
Plaintiffs Nancy A. Daw and Stephen L. Hoback,
(“Plaintiffs”) and Defendant
Consolidated City of Indianapolis and Marion County
(“the City”). Plaintiffs allege that the
City violated their procedural and substantive due process
rights by acquiring a portion of their property by eminent
domain to engage in a “public works project” in
Plaintiffs' neighborhood. Plaintiffs' operative
Second Amended Complaint, [Filing No. 42], is their
third attempt at pleading a cognizable claim. Presently
pending before the Court is the third motion filed by
Defendants seeking final resolution of this matter: in this
instance, a Motion to Dismiss pursuant to Fed.R.Civ.P.
12(b)(6). [Filing No. 43.] For the reasons described
below, the Court DISMISSES Plaintiffs'
Second Amended Complaint pursuant to Fed. R. Civ. Pro.
12(b)(1), because the Court lacks subject matter
jurisdiction over this matter.
following facts are taken from Plaintiffs' Second Amended
Complaint, and where indicated, prior filings represented on
the Court's docket. While these facts are not necessarily
objectively true, the Court accepts them as true, as it is
required to do when considering a motion to dismiss.
are the holders of title to Lot No. 7 in the Dean Meadows
subdivision in Indianapolis, Indiana, and they reside in a
dwelling located on that property, accessed by a cul-de-sac
street called Ritterskamp Court. [Filing No. 42 at
5.] Plaintiffs allege that in or around 1958, when the
subdivision was initially platted, the Marion County Plan
Commission required that the developers of the Dean Meadows
subdivision dedicate land for a public cul-de-sac street
easement, and required that the developers grant a temporary
driveway easement to owners of lots that abutted the
cul-de-sac easement. [Filing No. 42 at 4.] A
temporary driveway was constructed to provide a physical
means of access to the abutting lots, and the developers were
obligated to construct a permanent vehicular turnaround at
the cul-de-sac upon the termination of the easement.
[Filing No. 42 at 4.] The developers never did so.
[Filing No. 42 at 4.]
2005, Plaintiffs hired a surveyor to complete a survey of
their property. [Filing No. 42 at 5.] That survey
indicated that the “private driveway” was located
outside of the platted cul-de-sac easement and encroached on
Lot Number 7. [Filing No. 42 at 5.] At some
point in 2012, Ms. Daw “demolished the asphalt pavement
located upon Lot No. 7 with a sledgehammer, removed asphalt
chunks to the vehicular turnaround area of the cul-de-sac
easement, and filled the remaining void with topsoil, wood
chips, and Starbucks coffee grounds.” [Filing No.
42 at 6.] Sometime after the demolition of the asphalt,
Lori Miser, the Director of Public Works for the City of
Indianapolis, “decided to establish an asphalt private
driveway, located outside of the vehicular turnaround of the
cul-de-sac easement, as a public street.” [Filing
No. 42 at 2.] Ms. Miser determined that this was
“necessary for the general welfare of subdivision
residents, ” and was “of utility and benefit to
solid waste trucks.” [Filing No. 42 at 2.]
29, 2013, the City of Indianapolis filed a Complaint in
Marion County Superior Court for the Appropriation of Real
Estate regarding a portion of Plaintiffs' Lot
[Filing No. 17-1.] According to the written judgment
issued in that matter, all Defendants “were properly
served with summons and notice as required by statute.”
[Filing No. 17-1 at 1.] The judgment states that on
June 6, 2013, Ms. Daw and Mr. Hoback appeared as trustees of
Blue Diamond Revocable Trust, another defendant in that
action. [Filing No. 17-1 at 2.] The judgment also
indicates that “[n]o Defendant filed timely objection
to the appropriation of the real estate interest the
Plaintiff seeks to acquire.” [Filing No. 17-1 at
2.] On May 2, 2014, court-appointed appraisers filed a
report stating that the defendants had sustained total
damages of $7, 500, and no party filed any exceptions to the
appraisal. [Filing No. 17-1 at 2.] The court
directed the City to deposit $7, 500 with the Clerk of the
Court, which it did on July 1, 2014. [Filing No. 17-1 at
2.] The court then decreed that the City holds a fee
simple interest in the subject portion of real estate, and
ordered that the defendants should recover $7, 500 as total
just compensation for the City's appropriation.
[Filing No. 17-1 at 2-3.]
filed their initial Complaint in this Court on September 26,
2016, [Filing No. 1], and this Court granted without
prejudice the City's Motion for Judgment on the Pleadings
as to that Complaint, [Filing No. 30]. Plaintiffs
filed an Amended Complaint on June 29, 2017, [Filing No.
31], and this Court granted without prejudice the
City's Motion to Dismiss that Amended Complaint,
[Filing No. 41]. Plaintiffs have now filed their
Second Amended Complaint, [Filing No. 42], and
presently pending before the Court is the City's Motion
to Dismiss, [Filing No. 43]. That Motion is now
fully briefed and ripe for the Court's review.
Rule of Civil Procedure 8(a)(2) “requires only
‘a short and plain statement of the claim showing that
the pleader is entitled to relief.'” Erickson
v. Pardus, 551 U.S. 89, 93 (2007) (quoting Fed. R. Civ.
Pro. 8(a)(2)). “Specific facts are not necessary, the
statement need only ‘give the defendant fair notice of
what the . . . claim is and the grounds upon which it
rests.” Erickson, 551 U.S. at 93 (quoting
Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007)).
motion to dismiss asks whether the complaint
“contain[s] 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) (quoting Twombly, 550 U.S. at 570).
In reviewing the sufficiency of a complaint, the Court must
accept all well-pled facts as true and draw all permissible
inferences in favor of the plaintiff. SeeActive
Disposal, Inc. v. City of Darien,635 F.3d 883, 886 (7th
Cir. 2011). The Court will not accept legal conclusions or
conclusory allegations as sufficient to state a claim for
relief. SeeMcCauley v. City of Chicago,
671 F.3d 611, 617 (7th Cir. 2011). Factual
allegations must plausibly state an entitlement to relief
“to a degree that rises above the speculative
level.” Muns ...