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L.L. Nelson Enterprises, Inc.; Laura L. Nelson-Smith v. County of St. Louis

March 9, 2012

L.L. NELSON ENTERPRISES, INC.; LAURA L. NELSON-SMITH, PLAINTIFFS/APPELLANTS,
v.
COUNTY OF ST. LOUIS, MISSOURI, DEFENDANT/APPELLEE, CURLEY HINES; MARCUS LIPE, DEFENDANTS, RICHARD ROBINSON, DEFENDANT/APPELLEE, DAVID RODRIGUEZ, DEFENDANT, GENE OVERALL; JAMES D. BUCKLES; LAURIE MAIN; INDEPENDENT EVICTION AGENCY, LLC; JAMES SIEBELS; PAUL FOX, DEFENDANTS/APPELLEES.



Appeal from the United States District Court for the Eastern District of Missouri.

The opinion of the court was delivered by: Colloton, Circuit Judge.

Submitted: September 22, 2011

Before RILEY, Chief Judge, COLLOTON, and GRUENDER, Circuit Judges.

L.L. Nelson Enterprises, Inc., doing business as Landlords Moving Service, Inc., and its principal Laura L. Nelson-Smith (collectively, "Landlords Moving") brought civil rights claims under 42 U.S.C. §§ 1983 and 1985 against the County of St. Louis, several employees of the County, and a competitor firm Independent Eviction Agency, LLC, and its principal, James Siebels (collectively, "IEA"). The amended complaint alleged violations of constitutional rights under the First, Fifth, and Fourteenth Amendments and sought damages and declaratory and injunctive relief. The district court dismissed the plaintiffs' amended complaint for failure to state a claim against all but three defendants, and entered a final judgment pursuant to Federal Rule of Civil Procedure 54(b). Landlords Moving appeals. We reverse *fn1 the dismissal of Landlords Moving's First Amendment retaliation claim against defendant Laurie Main, affirm the dismissal of all other claims, and remand for further proceedings.

I.

The amended complaint alleges the following facts. The St. Louis County Sheriff's Office has for decades permitted real estate owners to hire private moving companies like Landlords Moving and IEA to remove their tenants' personal property during the execution of eviction orders. For a number of years, deputy sheriffs Laurie Main, Hines, Lipe, Rodriguez, and Richard Robinson allegedly executed an illegal kickback scheme in which they funneled eviction business to private moving companies in exchange for cash payments. Landlords Moving initially participated in this "illegal payments scheme," but began to express reluctance in 2003 and then withdrew from participation by mid-2004.

The scheme's participants implemented a written schedule in February 2004 for the execution of eviction orders. This schedule singled out Landlords Moving and limited the days on which it could receive eviction business. Landlords Moving complained about the schedule to Gene Overall, who was then the sheriff of St. Louis County, Paul Fox, the County's director of judicial administration, and others at the sheriff's office. After Landlords Moving exchanged a number of written and oral communications with the sheriff's office, Main announced to most of the deputy sheriffs named in the amended complaint that she would put Landlords Moving out of business.

With the cooperation of both the deputies and the entire sheriff's office, Main allegedly implemented procedures and practices that were designed to disadvantage Landlords Moving. These new practices, it is alleged, eventually shifted a substantial portion of Landlords Moving's business to IEA and other competitors. According to the amended complaint, Fox, Overall, and later Sheriff James Buckles either participated in, knew of, or should have known of this conspiracy, yet took no action to halt it.

In the second half of 2004, Landlords Moving contacted the United States Attorney's Office for the Eastern District of Missouri and reported the illegal kickback scheme and alleged retaliatory practices of the sheriff's office. Landlords Moving cooperated with federal prosecutors in the subsequent investigation and prosecution of various officials, including Hines, Lipe, Robinson, and Rodriguez. Laura Nelson-Smith also testified for the prosecution in federal court, and all of the defendants have known for some time of Landlord Moving's role in the investigation and prosecutions. The amended complaint alleged that in retaliation, Main and others in the sheriff's office "have continued and even increased the extent of their conspiracy," taking such measures as forcing Landlords Moving's clients to "wait inordinately" for enforcement of their eviction orders.

Landlords Moving filed a four-count amended complaint against each of the eleven defendants. The first two counts arise under 42 U.S.C. § 1983 and allege the deprivation of constitutional rights. As relevant here, Count I alleges that the illegal kickback scheme violated Landlord Moving's rights under the Due Process Clause, Equal Protection Clause, and the Takings Clause of the Constitution, while Count II avers that retaliation against Landlords Moving for protesting the kickback scheme infringed its rights to freedom of speech and to petition for the redress of grievances under the First and Fourteenth Amendments. Count III is a claim for damages under 42 U.S.C. § 1985, alleging that the defendants conspired to retaliate against Landlords Moving because of Laura Nelson-Smith's testimony in federal court. In the fourth count, Landlords Moving seeks declaratory and injunctive relief "to define reasonable commercial and noncommercial public expectations with respect to tasks to be performed by the Sheriff's offices in connection with eviction executions," in order to "effect a reasonably complete redress of plaintiffs' injuries."

The County, Overall, Buckles, Fox, Main, Robinson, and IEA moved to dismiss Landlords Moving's amended complaint. The district court granted the motions, concluding that the amended complaint did not plausibly allege either the deprivation of a constitutional right or that the defendants deterred Nelson-Smith from testifying. The district court entered final judgment as to these defendants pursuant to Rule 54(b), and Landlords Moving appeals.

II.

We review de novo a district court's decision to grant a motion to dismiss, accepting the allegations of the amended complaint as true. See Schmidt v. Des Moines Pub. Schs., 655 F.3d 811, 816 (8th Cir. 2011). To survive a motion to dismiss, a complaint must plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Facial plausibility, in turn, requires that the claim plead facts from which a court may "draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). At the same time, "[s]pecific 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 v. Pardus, 551 U.S. 89, 93 (2007) (internal quotation omitted); see Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002).

The essential elements of a constitutional claim under § 1983 are (1) that the defendant acted under color of state law, and (2) that the alleged wrongful conduct deprived the plaintiff of a constitutionally protected federal right. Schmidt v. City of Bella Villa, 557 F.3d 564, 571 (8th Cir. 2009). The district court assumed the first element was satisfied, see Monroe v. Pape, 365 U.S. 167 (1961), but determined that the amended complaint alleged no constitutional violation. ...


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