United States District Court, S.D. Indiana, Indianapolis Division
SHEMECA YOUNG, RACQUEL YOUNG, and K.W. by Next Friend, SHEMECA YOUNG, Plaintiffs,
RICHARD SMITH Deputy Constable, in his individual capacity, LAURA B. CONWAY, MAIN STREET RENEWAL, LLC, NICK'S PACKING SERVICES, INC., and CRAIG HUFF, Defendants.
ENTRY ON DEFENDANTS' MOTION TO DISMISS AND MOTION
FOR SUMMARY JUDGMENT
WALTON PRATT, JUDGE.
matter is before the Court on a Motion to Dismiss filed by
Laura Conway (“Conway”) (Filing No.
107), and a Motion for Summary Judgment filed by
Nick's Packing Services, Inc. (“Nick's”)
(Filing No. 126). Also before the Court is a Motion
for Leave to File a Surreply in Opposition to Defendant Laura
Conway's Motion to Dismiss. (Filing No. 119).
Plaintiffs Shemeca Young (“Shemeca”), Racquel
Young (“Racquel”), and K.W. by Next Friend,
Shemeca Young (“K.W.”) (collectively,
“Plaintiffs”), allege in their Second Amended
Complaint claims under 42 U.S.C. § 1983, as well as
Indiana state law claims for statutory deception and civil
conversion. (Filing No. 103.) For the reasons that
follow, the Court grants Conway's Motion
to Dismiss and denies Nick's Motion for
following facts are not necessarily objectively true, but as
required by Federal Rule of Civil Procedure 56, the facts are
presented in the light most favorable to Plaintiffs as the
non-moving party. See Zerante v. DeLuca, 555 F.3d
582, 584 (7th Cir. 2009); Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986). In reviewing
the facts for Conway's Motion to Dismiss, the Court
accepts as true all well-pleaded facts alleged in the Amended
Complaint, and draws all possible inferences in the
Plaintiff's favor. See Erickson v. Pardus, 551
U.S. 89, 94 (2007) (“[W]hen ruling on a defendant's
motion to dismiss, a judge must accept as true all of the
factual allegations contained in the complaint.”).
March 2015, Shemeca signed a lease to occupy the real estate
located at 8136 Carina Drive, Indianapolis, Indiana (the
“Residence” or the “Property”).
(Filing No. 103 at 2.) Shemeca leased the Residence
from its owners Dennis and Katherine Young (collectively,
“the Youngs”), who are not related to any of the
Plaintiffs despite their common surname. Id. at 3.
Shemeca moved into the Residence with her minor son, K.W.,
and made monthly lease payments to the Youngs in the amount
of $1, 250.00. Id. At some point during the lease,
Shemeca's sister, Racquel moved into the Residence.
Id. Racquel suffers from a serious medical condition
that requires daily kidney dialysis, and she kept special
medical equipment at the Residence to perform her daily
kidney dialysis. Id. The equipment consisted of a
home dialysis unit, IV fluids, an IV pole, and other items.
point in late 2014, before Shemeca signed the lease, the
Residence became part of a foreclosure action against the
Youngs. Id. The Plaintiffs were unaware of the
Property's foreclosure status, and Shemeca continued
making monthly payments to the Youngs. Periodically, Shemeca
received “court papers”, addressed to the Youngs,
left on the door of the Property, which she forwarded to the
Youngs without reading. Id. The foreclosure action
did not name any of the Plaintiffs. Id.
decree of foreclosure was entered against the Property on
June 21, 2016, and Jeff 1, LLC purchased the Property at a
sheriff's sale. (Filing No. 69-1.) Main Street
Renewal, a party not included in the Second Amended
Complaint, provided property management services for Jeff 1
LLC. (Filing No. 103 at 3.) On August 2, 2016,
Conway, an attorney who acted on behalf of Main Street
Renewal, filed a “Notice of Claim for Possession of
Real Estate” (“Eviction Notice”) in the
Pike Township Division of the Marion County Small Claims
Court. Id. at 4. The Eviction Notice named the
defendants as “Dennis P. Young, Katherine L. Young, and
all unknown occupants.” Id. On August 30,
2016, Conway requested and received a Writ of Restitution
(the “Writ”) following the eviction hearing.
Id. Conway presented the Writ to the Constable of
Pike Township Richard Smith (“Smith”), along with
payment, and requested Smith to execute the Writ.
Id. The Writ is reproduced below.
September 29, 2016, at approximately 10:00 a.m., Shemeca and
K.W. were at the Residence when Conway and Smith knocked on
the door to serve the Writ. (Filing No. 103 at 5.)
Smith asked Shemeca if she was either of the persons named on
the Writ, to which Shemeca told Smith the individuals named
were her landlords who did not live there. Id. Smith
responded, “Well it doesn't matter; you have to
leave.” Id. Shemeca asked to get dressed, as
she walked away, Smith and Conway entered the residence.
Id. Conway took a seat at Plaintiffs' dining
room table. Id. Smith drew his firearm and proceeded
upstairs where then four (4) year old K.W. was located.
Id. Smith entered K.W.'s bedroom and pointed his
firearm at K.W. and ordered both K.W. and Shemeca to leave
the home. Id. Shemeca did not understand what was
taking place because she was current on her rent.
Id. She informed Smith and Conway that Racquel
needed her kidney dialysis equipment and asked to retrieve
it. Id. at 6. Smith told Shemeca she could not
retrieve it and ordered her out of the house. Id.
Shemeca also informed Nick's employees that Racquel
needed her dialysis equipment, to which the agent for
Nick's provided her with the inventory sheet and told her
to call Nick's. Id.
took possession of the Plaintiffs' belongings following
the eviction on September 29, 2016. Because Nick's did
not have sufficient storage capacity at its Beech Grove
Warehouse to store Plaintiffs' belongings, Nick's
took approximately seventy-five percent (75%) of the property
to another storage facility, Public Storage. (Filing No.
128 at 4.) On October 5, 2016, Shemeca went to
Nick's Beech Grove office where Nick's employee,
Lorena Braun (“Braun”), presented Shemeca with a
customer intake sheet. (Filing No. 132 at 59.) The
customer intake sheet provided that Shemeca's personal
belongings were being stored in 12 vaults at the price of
$250.00 per vault with an additional $10.84 charge for each
day. Id. As of October 5, 2016, Shemeca's
balance for storage fees was $3, 075.88. Id. Braun
noted that Young did not make payment or a contract for
payment. Id. An inventory list was taken, to which
Shemeca noted in her own handwriting that she disputed the
inventory list because a television and four other items were
missing. Id. However, Nick's Answer to
Plaintiffs' discovery requests indicated that on October
5, 2016, that Plaintiffs' personal belongings were being
stored at a different location, Public Storage-4305 W.
86th Street, Indianapolis, Indiana 46268, for
$212.00. Id. at 61.
motion to dismiss under Rule 12(b)(1) challenges the
court's subject matter jurisdiction. Fed.R.Civ.P.
12(b)(1). The burden of proof is on the plaintiff, the party
asserting jurisdiction. United Phosphorus, Ltd. v. Angus
Chem. Co., 322 F.3d 942, 946 (7th Cir. 2003),
overruled on other grounds by Minn-Chem, Inc. v. Agrium,
Inc., 683 F.3d 845 (7th Cir. 2012) (en banc). “The
plaintiff has the burden of supporting the jurisdictional
allegations of the complaint by competent proof.”
Int'l Harvester Co. v. Deere & Co., 623 F.2d
1207, 1210 (7th Cir. 1980). “In deciding whether the
plaintiff has carried this burden, the court must look to the
state of affairs as of the filing of the complaint; a
justiciable controversy must have existed at that
Rule of Civil Procedure 56 provides that summary judgment is
appropriate if “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a
judgment as a matter of law.” Hemsworth v.
Quotesmith.Com, Inc., 476 F.3d 487, 489-90 (7th Cir.
2007). In ruling on a motion for summary judgment, the court
reviews “the record in the light most favorable to the
nonmoving party and draw[s] all reasonable inferences in that
party's favor.” Zerante v. DeLuca, 555
F.3d 582, 584 (7th Cir. 2009) (citation omitted). However,
“[a] party who bears the burden of proof on a
particular issue may not rest on its pleadings, but must
affirmatively demonstrate, by specific factual allegations,
that there is a genuine issue of material fact that requires
trial.” Hemsworth, 476 F.3d at 490 (citation
omitted). “In much the same way that a court is not
required to scour the record in search of evidence to defeat
a motion for summary judgment, nor is it permitted to conduct
a paper trial on the merits of a claim.” Ritchie v.
Glidden Co., 242 F.3d 713, 723 (7th Cir. 2001) (citation
and internal quotations omitted). ...