United States District Court, D. Utah, Central Division
CHARLES A. SCHULTZ, Plaintiff,
MICHAEL AVERETT, HEATHER BATEMAN, KASEY BATEMAN, JAY BINKERD, JONATHAN BLOTTER, ERIC BUNKER, LYNN CRISLER, LAMBERT DEEGAN, MICHAEL DUGGIN, JOHN GLODOWSKI, DIANE GROASE, DANIEL HARVATH, KIM NORRIS, ED PRESSGROVE, LANCE TURNER, PAM SKINNGER, LYNNE SCHINDURLING, FRANCIS SMITH, GARY WALTON, GARY WEIGHT, and THE TOWN OF DANIEL, Defendants.
N. PARRISH DISTRICT JUDGE
REPORT AND RECOMMENDATION RE: THE DEFENDANTS'
MOTION TO DISMISS, IN PART, PLAINTIFF'S SECOND AMENDED
COMPLAINT (ECF NO. 57)
J. FURSE UNITED STATES MAGISTRATE JUDGE
Defendants the Town of Daniel (“the Town”) and
Eric Bunker (collectively “the Town Defendants”)
move the Court to dismiss the eighth cause of action for
an unlawful government taking and all claims against Mr.
Bunker in Plaintiff Charles Schultz's Second Amended
Complaint for failure to state a claim upon which this Court
can grant relief. (Defs.' Mot. to Dismiss, in Part,
Pl.'s 2nd Am. Compl. (“Mot.”) 1-2, ECF No.
57.) The Town Defendants argue Mr. Schultz's takings
claim and his claims against Mr. Bunker fail because Mr.
Schultz failed to cure the deficiencies in his first Amended
Complaint. (Id. at 4-8.) Mr. Bunker specifically
argues Mr. Schultz's claims against him in his individual
capacity fail because he only alleges actions taken “in
a representative capacity on behalf of the
Town.” (Mot. 4, ECF No. 57). Mr. Bunker further
contends, to the extent Mr. Schultz alleges claims against
him in his individual capacity, his claims again fail as a
matter of law because he failed to state a claim against him
under 42 U.S.C. § 1983. (Id. at 6.)
Additionally, the Town argues this Court should dismiss Mr.
Schultz's eighth cause of action because he again
presents an unripe takings claim. (Id. at 7-8.) The
Town seeks its attorneys' fees for bringing the present
Motion because Mr. Schultz reasserts claims “previously
dismissed by the Court without curing any of the defects
specifically identified by the Court.” (Id. at
21, 2019, the United States Supreme Court issued its decision
in Knick v. Twp. of Scott, __ U.S. __, 139 S.Ct.
2162, 2179 (2019), overturning the state-level exhaustion
requirement established in Williamson Cty. Reg'l
Planning Comm'n v. Hamilton Bank, 473 U.S. 172
(1985). The Court held that a plaintiff may bring a Fifth
Amendment unlawful takings claim under 42 U.S.C. § 1983
at the time a government takes his or her property without
just compensation and need not first pursue a state-level
action before seeking relief in federal court.
Knick, 139 S.Ct. at 2167-68. In light of the Supreme
Court's ruling, the undersigned issued an Order directing
the parties to file a statement as to whether, and/or how,
the decision in Knick altered their positions with
respect to Mr. Schultz's takings claim. (Docket Text
Order, ECF No. 102.) On July 8, 2019, the Town Defendants
filed their statement withdrawing their pending Motion as to
Mr. Schultz's takings claim. (Defs.' Statement Re:
Knick v. T'ship of Scott Ordered by Docket No.
102 (“Defs.' Statement”), ECF No. 105 at 2.)
Therefore, the Town Defendants' Motion to Dismiss now
addresses only the claims against Mr. Bunker.
carefully considered the parties' briefing,
taking all factual allegations as true, the undersigned
RECOMMENDS the District Judge GRANT the Town Defendants'
Motion to Dismiss all claims against Mr. Bunker because the
Second Amended Complaint fails to state a claim under §
1983. Lastly, the undersigned RECOMMENDS the District Judge
DENY the Town Defendants' request for attorneys' fees
under 28 U.S.C. § 1927 because Mr. Schultz's actions
do not constitute unreasonable and vexatious conduct.
AND PROCEDURAL HISTORY
October 12, 2017, Mr. Schultz filed his first Amended
Complaint alleging seventeen causes of action. (Am. Compl.,
ECF No. 32.) Defendants Michael Averett, Heather Bateman,
Kasey Bateman, Jay Binkerd, Jonathan Blotter, Eric Bunker,
Lynn Crisler, Lambert Deegan, Michael Duggin, John Glodowski,
Diane Groase, Daniel Harvath, Kim Norris, Ed Pressgrove,
Lynne Schindurling, Pam Skinnger, Francis Smith, Lance
Turner, Gary Walton, Gary Weight, and the Town of Daniel
(collectively the “Daniel Defendants”) filed a
Motion to Dismiss for failure to state a claim. (Defs.'
Mot. to Dismiss & Supp'g Mem., ECF No. 33.)
August 22, 2018, the undersigned issued a Report and
Recommendation to grant in part and deny in part the Daniel
Defendants' Motion. With specific relevance to the
instant Motion to Dismiss, the undersigned recommended
dismissing all claims against the individual defendants
without prejudice because the Amended Complaint failed to
plead any facts explaining “what actions the
individuals took or failed to take, and in what capacity they
acted.” (R&R to Grant the Defs.' Mot. to
Dismiss (“R&R”) 9, ECF No. 49.) The
undersigned recommended giving Mr. Schultz an opportunity
“to amend his Complaint to include more detailed
factual pleadings against the individuals.”
(Id.) The undersigned further noted if Mr. Schultz
intended to make a claim for financial damages against the
individual defendants for any federal constitutional
violations, then he must state a claim pursuant to 42 U.S.C.
§ 1983. (Id. at 9-11 .)
September 12, 2018, the District Judge adopted the Report and
Recommendation in its entirety and granted Mr. Schultz
“twenty-one days to file an amended complaint that
remedies the deficiencies identified in the Report and
Recommendation, if he can.” (Order Adopting R&R
(“Order”) 4-5, ECF No. 51.)
November 2, 2018, Mr. Schultz filed his Second Amended
Complaint. (2d. Am. Compl., ECF No. 54.) Taking the factual
allegations in the Second Amended Complaint as true, Kan.
Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1214 (10th
Cir. 2011) (citing Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007)), the following facts provide the
background for this decision.
1, 1999, Mr. Schultz purchased a home on 3.71 acres in
Wasatch County, Utah. (2d. Am. Compl. ¶¶ 8, 12, 13,
ECF No. 54.) At the time Mr. Schultz purchased the property,
Wasatch County had zoned the property along with all of the
property on that street, 3000 South, residential/agriculture
(“RA”). (Id. at ¶ 15.) On May 1,
2002, a fire destroyed Mr. Schultz's property.
(Id. at ¶ 12.) Mr. Schultz's property,
along with all of the property on 3000 South, retained its RA
designation “until sometime in 2006, after the Town of
Daniel became a town, and rezoned the property along 3000
South to RA-5 (residential/agriculture, five acre
minimum).” (Id. at ¶ 17) (footnote
February 2006, the Town of Daniel filed articles of
incorporation with the Wasatch County Recorder. (See
id. at ¶¶ 8, 16.) Mr. Schultz's property
sits in the Town of Daniel. (Id. at ¶ 17.) No
one notified Mr. Schultz of the Town of Daniel's
incorporation, and he did not know the area became a town
until April or May of 2014. (Id. at ¶¶ 16,
20-21.) In fact, Mr. Schultz continued to pay taxes on his
property as a residential lot and therefore overpaid his
property taxes to the Town of Daniel. (Id. at
or 2007, the Town of Daniel passed a code that changed Mr.
Schultz's property's zoning from RA to RA-5.
(Id. at ¶¶ 18-19.) Mr. Schultz first
learned the Town of Daniel had changed the zoning of his
property in April or May of 2014 while attempting to sell his
property. (Id. at ¶¶ 23-25.) After
experiencing difficulty selling his property, Mr. Schultz
contacted the Town of Daniel who
told [him] a home could not be built on his property, because
the Town of Daniel had passed Daniel Town Code, Section
8.22.03, that states that [he] could not build a new home on
his property, because he did not rebuild a new home on his
property, within one year after the home on his property was
destroyed by fire, on May 1, 2002, unless [he] could provide
the Town of Daniel with a document called a “Lot of
Record, ” even though the Town of Daniel did not exist,