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Daw v. Consolidated City of Indianapolis and Marion County

United States District Court, S.D. Indiana, Indianapolis Division

January 18, 2018



          Hon. Jane Magnus-Stinson, Chief Judge

         This 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.



         The 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.

         Plaintiffs 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.]

         In 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.[1] [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.”[2] [Filing No. 42 at 2.]

         On May 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 7.[3] [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.]

         Plaintiffs 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.


         Legal Standard

         Federal 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)).

         A 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 ...

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