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Longwood, LLC v. Voegele

United States District Court, W.D. Kentucky, Louisville Division

April 5, 2018

LONGWOOD, LLC, PLAINTIFF
v.
DAVID VOEGELE, et. al., DEFENDANTS

          MEMORANDUM OPINION AND ORDER

          THOMAS B. RUSSELL, SENIOR JUDGE UNITED STATES DISTRICT COURT

         This matter is before the Court on Defendants David Voegele, Scott Harris, Alan Bond, the Oldham County Engineer's Office, and the Oldham County Fiscal Court's motion for partial judgment on the pleadings, [DN 13.] Plaintiff Longwood, LLC (“Longwood” or “Plaintiff”) responded, [DN 14], and Defendants replied, [DN 15.] Fully briefed, this matter is ripe for adjudication. For the reasons discussed below, Defendants' motion is GRANTED IN PART AND DENIED IN PART.

         BACKGROUND

         This action arises out of Plaintiff Longwood's development of a residential community called Harmony Pointe in Oldham County, Kentucky. [DN 1 at 3-4.] Longwood began developing Harmony Pointe after “[t]he Oldham County Planning and Zoning Commission approved the development plan . . . on December 16, 2013.” [Id. at 4.] After July 13, 2016, Longwood's only business has been “to sell remaining lots not yet sold. Critically, Longwood does not engage in the construction of homes on the lots that it has sold. From time to time Longwood provides financing to contractors.” [Id.]

         On September 18, 2017, the Oldham County Engineer's Office sent Longwood a Notice of Deficiency (the “First NOD”). [Id. at 5.] The deficiencies identified on the First Notice pertained to lots 11, 12, 13, 15, 16, 18, 21, 22, 26, 29, 38, and 40. [DN 1-2 at 1-2 (Notice of Deficiency).] Defendant Alan Bond was identified on the First Notice as the “Inspector.” [Id.] Longwood contends that it owned only lots 7, 9, and 15 at the time the First Notice was issued, and that it “remedied all alleged deficiencies with those lots.” [Id. at 5.]

         Bond issued a second Notice of Deficiency (the “Second NOD”) on October 4, 2017. [Id. at 5.] According to Longwood, the Second Notice, like the First Notice, “detailed alleged “deficiencies' with specific lots which are owned and controlled by third party contractors, under no control of Longwood.” [Id. at 6.] A third Notice of Deficiency (the “Third NOD”) was issued on October 17, 2017, which Longwood contends also “alleged deficiencies with lots owned by third party contractors, including Lots 29, 18, 15, 12, and 40, ” over which Longwood has no control. [Id.]

         “On October 30, 2017, members of the Oldham County Engineer's Office met with Longwood's Engineer, Charlie E. Weiter, P.E. (“Weiter”), to discuss the NODS on behalf of Longwood.” [Id.] Notes from that “Inspection Site Visit” stated that “Longwood should ‘clean up all waste concrete throughout the project site.'” [Id. (quoting DN 1-5 at 1).] However, according to Longwood, “[t]he only ‘concrete' present on the development is on specific individual lots owned by third party contractors.” [Id.]

         On November 7, 2017, Weiter sent an email to Defendant Scott Harris informing him that Longwood has no ownership interest in the individual lots in Harmony Pointe that were being developed by builders and that each owner needed to be “responsible for their site disturbance activity”. [Id. at 7.] Later that same day, “at approximately 4:30 pm, Weiter attended a meeting with Scott Harris and [Defendant] Voegele.” [Id. at 8.] There, “Weiter explained how Longwood is not the ‘Person Responsible' under the Ordinance as the lots are owned by third party contractors.” [Id.] Longwood contends that, at the meeting, “Harris and Voegele did not have a valid explanation for attempting to enforce the Ordinance against Longwood.” [Id.] However, that same day, the Oldham County Fiscal Court issued a “NOTICE OF VIOLATION” and an “ORDER TO STOP WORK IMMEDIATELY” (“Stop Work Order”) with regard to all work on the Harmony Pointe development. [Id.]

         Longwood asserts that the Stop Work Order has required it “to stop selling any lots, including to close the property under contract, ” and has “forced third party contractors to stop construction on the lots they own.” [Id.] On this basis, Longwood brought the instant suit against Oldham County Judge Executive David Voegele, Scott Harris, Alan Bond, the Oldham County Engineer's Office, and the Oldham County Fiscal Court. [See DN 1 at 3.] Longwood contends that Defendants have wrongfully attempted to enforce an Oldham County pollution Ordinance against it “when it is not a Landowner or Permittee as defined in the Ordinance.” [Id. at 9.] Longwood asserts claims for violation of the Fourteenth Amendment under 42 U.S.C. § 1983, violation of the Contracts Clauses of the U.S. and Kentucky Constitutions, and tortious interference with contract. [Id. at 10-13.] Defendants simultaneously filed an answer, [DN 12], and the instant motion for partial judgment on the pleadings, [DN 13.]

         STANDARD

         “For purposes of a motion for judgment on the pleadings [under Rule 12(c)], all well-pleaded material allegations of the pleadings of the opposing party must be taken as true, and the motion may be granted only if the moving party is nevertheless clearly entitled to judgment.” JPMorgan Chase Bank, N.A. v. Winget, 510 F.3d 577, 581 (6th Cir. 2007) (quoting Southern Ohio Bank v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 479 F.2d 478, 480 (6th Cir. 1973)). However, the Court “need not accept as true legal conclusions or unwarranted factual inferences.” Id. at 581-82 (quoting Mixon v. Ohio, 193 F.3d 389, 400 (6th Cir. 1999)). “A Rule 12(c) motion ‘is granted when no material issue of fact exists and the party making the motion is entitled to judgment as a matter of law.' ” Id. at 582 (quoting Paskvan v. City of Cleveland Civil Serv. Comm'n, 946 F.2d 1233, 1235 (6th Cir. 1991)).

         DISCUSSION

         In its motion for partial judgment on the pleadings, Defendants contend that “[t]he proper party to Plaintiff's Complaint is Oldham County. Defendants, David Voegele, Scott Harris, Alan Bond, and the Oldham County Engineer's Office are not proper parties and Plaintiff's claims against them should be dismissed with prejudice.” [DN 13-1 at 2 (Memorandum in Support of Defendants' Motion).] The Court will address each of Defendants' arguments in turn.

         A. Claims Against David Voegele, Scott Harris, and Alan Bond

         Defendants first argue that any claims brought against Voegele, Harris, and Bond in their official capacities as Oldham County employees “are simply another way of stating a cause of action against the Oldham County Fiscal Court, ” which is duplicative since Plaintiffs also assert a claim against the Oldham County Fiscal Court. [Id. at 3.] Indeed, there is an abundance of case law confirming the principle that official capacity claims against employees of an entity, when that entity itself is also named as a defendant, are duplicative. See Colson v. City of Alcoa, Tennessee, No. 3:16-CV-377, 2017 WL 4019596, at *5 (E.D. Tenn. Sept. 11, 2017) (“In allowing the municipal liability claims against the City of Alcoa to remain intact, however, the Court will dismiss the official-capacity claims against Chief Potter, Lieutenant Fletcher, Officer Cook, and Officer Wilson because they are duplicative.”); Thorpe ex rel. D.T. v. Breathitt Cty. Bd. of Educ., 932 F.Supp.2d 799, 802 (E.D. Ky. 2013) (“[W]hen a § 1983 complaint asserts a claim against a municipal entity and a municipal official in his or her official capacity, federal courts will dismiss the official-capacity claim.”).

         In its response, Plaintiff concedes that the official capacity claims against Voegele, Harris, and Bond are properly dismissed. Accordingly, to the extent Plaintiff does sue those Defendants in their official capacities, those claims will be dismissed. However, Plaintiff contends that it also brings its claims against those Defendants in their individual capacities, and that those claims are proper and not subject to dismissal. [DN 14 at 1 (Plaintiff's Response).] Plaintiff is correct that, even when official capacity claims are dismissed as duplicative of claims against the entity itself, individual capacity claims against the same defendants can proceed. See Thorpe, 932 F.Supp.2d 799, 802 (E.D. Ky. 2013) (“Because Thorpe has also asserted a claim against the Board of Education, these official-capacity claims are duplicative . . . Therefore, the Court will dismiss the official-capacity claims. Thorpe may still pursue the § 1983 claim against the Board of Education and the claims against Defendants in their individual capacities.”); Fultz v. Whittaker, 187 F.Supp.2d 695, 708 (W.D. Ky. 2001) (“Plaintiffs' actions against the individual defendants in their official capacities do duplicate the action against the Fiscal Court and for the sake of accuracy Defendants John Black and Gene Hicks should be dismissed to the extent they are sued only in their official capacity.”) (emphasis added).

         In their reply, however, Defendants contend that Plaintiff never provided notice that it brings its claims against Voegele, Harris, and Bond both in their official and individual capacities. [DN 15 at 2-3.] In support of this argument, Defendants cite Moore v. City of Harriman, in which the Sixth Circuit states that, “while it is clearly preferable that plaintiffs explicitly state whether a defendant is sued in his or her ‘individual capacity, ' . . . failure to do so is not fatal if the course of proceedings otherwise indicates that the defendant received sufficient notice.” Moore v. City of Harriman, 272 F.3d 769, 772 (6th Cir. 2001). Defendants contend that, unlike in Moore, the “course of proceedings” test has not been satisfied here. [DN 15 at 2-3.] In support of this argument, Defendants focus on how Plaintiff characterized its claims against Voegele, Harris, and Bond in its ...


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