United States District Court, D. South Dakota, Western Division
LAMAR ADVERTISING OF SOUTH DAKOTA, INC., a South Dakota corporation, and TLC PROPERTIES, INC., d/b/a Lamar TLC Properties, Inc., a Louisiana corporation, Plaintiffs,
CITY OF RAPID CITY, a South Dakota municipal corporation, Defendant
Lamar Advertising of South Dakota, Inc, a South Dakota
corporation, TLC Properties, Inc., doing business as, Lamar
TLC Properties, Inc., a Louisiana corporation, Plaintiffs:
Ryan Nelson Boe, LEAD ATTORNEY, Larkin, Hoffman, Daly &
Lindgren, Ltd., Minneapolis, MN; Tamara O'Neill Moreland,
PRO HAC VICE, Larkin, Hoffman, Daly & Lindgren, Ltd.,
City of Rapid City, a South Dakota municipal corporation,
Defendant: G. Verne Goodsell, LEAD ATTORNEY, David S. Barari,
Goodsell Quinn, LLP, Rapid City, SD.
L. VIKEN, CHIEF JUDGE.
Lamar Advertising of South Dakota, Inc. (" Lamar"
), and TLC Properties, Inc., d/b/a Lamar TLC Properties, Inc.
(" TLC" ), collectively referenced as ("
plaintiffs" ), filed a complaint against defendant City
of Rapid City (" City" ). (Docket 1). The complaint
asserts two citizen-initiated ordinances, The Citizens'
Billboard Control Initiative and The Citizens' Reform
Initiative for Billboard Sign Credits (collectively referred
to as " Citizen Initiatives" ), were passed into
law and directly contradict South Dakota Codified Law
provisions, resulting in a taking of private property without
just compensation. Plaintiffs also claim the ordinances
violate freedom of speech and equal protection as rights
secured by the United States and South Dakota Constitutions.
Id. Plaintiffs contend they are entitled to recover
money damages as well as attorney's fees and costs under
42 U.S.C. § § 1983 and 1988. Id.
parties filed cross motions for summary judgment. (Dockets 28
& 34). The court granted in part, denied in part and reserved
in part plaintiffs' motion. (Docket 65 at p. 32). The
court also reserved ruling on plaintiffs' motion for
attorney's fees and costs. Id. at 31. The court
granted in part and denied in part defendant's motion.
Id. at 32. Following the summary judgment order, the
court indicated " the only remaining issues are whether
the spacing requirements established by the Citizen
Initiatives are reasonable and whether plaintiffs are
entitled to damages." Id. at 31. Because
neither party requested a jury trial, a court trial was
scheduled. Id.; see also Dockets 68 & 69.
court made several rulings prior to trial. (Dockets 109 &
114). The court trial commenced on November 10, 2014, and
concluded on November 14, 2014. (Docket 115). The court
ordered simultaneous briefing, and the parties submitted
post-trial briefs. (Dockets 118 & 119). In addition to the
express issues left for the court trial (Docket 65 at p. 31),
both parties made additional motions at the pretrial
conference, immediately before trial, during trial and in
post-trial briefing, including: (1) plaintiffs' motion to
amend its complaint (Docket 118 at p. 37); (2) the City's
renewed motion for summary judgment (made orally); (3) the
City's " motion to reconsider declaratory ruling on
digital signs" (Docket 119 at p. 35); and (4) the
City's motion for a directed verdict (made orally).
court incorporates the material facts from its summary
judgment order by reference. (Docket 65). Plaintiffs called
Doug Rumpca, the general manager of Lamar and a vice
president of TLC; Andy Chlebek, a Rapid City code enforcement
officer specializing in off-premise sign licensing; and Paul
Wright, Jr., an expert witness and commercial real estate
appraiser who consulted with the plaintiffs in calculating
the extent of their alleged damages. The City cross-examined
all of plaintiffs' witnesses. After the completion of
plaintiffs' evidence, the City moved for a directed
verdict. The court took the motion under advisement. The City
called David Gilley, an expert witness on billboard and
outdoor advertising issues, to critique Lamar's digital
rollout plan. Plaintiffs cross-examined Mr. Gilley. The City
rested, and the court adjourned the trial pending receipt of
the parties' post-trial briefs. Because of the wide array
of pending motions and issues before the court, further
recitation of salient facts is included in the appropriate
discussion section below.
court first addresses plaintiffs' motion to amend the
complaint. Second, the court considers whether
plaintiffs' regulatory takings claims are ripe. Third,
the court considers whether it has supplemental jurisdiction
over plaintiffs' state law claims.
Plaintiffs' Motion to Amend the Complaint
motion to amend the complaint is denied. Plaintiffs'
motion to amend the complaint is in response to the
court's pretrial ruling granting the City's second
motion in limine. (Dockets 86 & 114). In its motion
in limine, the City sought " to exclude any
evidence, testimony or argument of Plaintiffs regarding
damages incurred by the denial of six billboard applications
made two months prior to the vote on the initiated ordinance
at issue in this case." (Docket 86 at p. 1). The court
granted the City's motion and found " plaintiffs
failed to plead a plausible claim for entitlement to damages
due to the six denied billboard applications." (Docket
114 at pp. 1-2). Plaintiffs orally moved to amend their
complaint pursuant to Fed.R.Civ.P. 15(a) and (b) immediately
prior to the start of trial. The court took the motion under
advisement. In post-trial briefing, plaintiffs again sought
to amend the complaint (Docket 118 at p. 1) and submitted an
amended complaint with the alterations underlined. (Docket
118-2). Fed.R.Civ.P. 15(a)
ask the court to grant their motion to amend based solely on
Fed.R.Civ.P. 15. However, " [a] schedule may be modified
only for good cause and with the judge's consent."
Fed.R.Civ.P. 16(b)(4). " When the district court has
filed a Rule 16 pretrial scheduling order, it may properly
require that good cause be shown for leave to file an amended
pleading that is substantially out of time under that
order." In re Milk Products Antitrust Litig.,
195 F.3d 430, 437 (8th Cir. 1999) (citing Johnson v.
Mammoth Recreations, Inc., 975 F.2d 604, 607-08 (9th
Cir. 1992)); see also Popoalii v. Corr. Med. Servs.,
512 F.3d 488, 497 (8th Cir. 2008) (" If a party files
for leave to amend outside of the court's scheduling
order, the party must show cause to modify the
schedule." ) (citing Fed.R.Civ.P. 16(b)). " The
primary measure of Rule 16's 'good cause'
standard is the moving party's diligence in attempting to
meet the case management order's requirements."
Bradford v. Dana Corp., 249 F.3d 807, 809 (8th Cir.
If [the court] considered only Rule 15(a) without regard to
Rule 16(b), we would render scheduling orders meaningless and
effectively would read Rule 16(b) and its good cause
requirement out of the Federal Rules of Civil
Procedure." In re Milk Products,195 F.3d at 437-38
(internal quotation marks omitted) (quoting Sosa v.
Airprint Sys., Inc., 133 F.3d 1417, 1419 (11th Cir.
1998)). " A decision whether to allow a party to amend
her complaint is left to the sound discretion of the district
court and should be overruled only if there is an abuse of
discretion." Popoalii, 512 F.3d at 497 (citing Bell
v. Allstate Life Ins. Co., 160 F.3d 452, 454 (8th Cir.
A court abuses its discretion when it denies a motion to
amend a complaint unless there exists undue delay,
bad faith, repeated failure to cure deficiencies by
amendments previously allowed, undue prejudice to the
non-moving party, or futility of the amendment. . . . When
late tendered amendments involve new theories of
recovery and impose additional discovery requirements,
appellate courts are less likely to hold a district court
abused its discretion. . . . If a party files for leave to
amend outside of the court's scheduling order, the party
must show cause to modify the schedule.
Popoalii, 512 F.3d at 497 (emphasis added) (citing
filed their complaint on August 29, 2011. (Docket 1). The
court entered a scheduling order on October 31, 2011. (Docket
15). Plaintiffs were given until December 30, 2011, " to
move to join additional parties and to amend the
pleadings." Id. at 2. The court entered its
summary judgment order on February 21, 2014. (Docket 65). The
court twice continued the court trial. (Dockets 68 & 69). The
court already determined " plaintiffs failed to plead a
plausible claim for entitlement to damages due to the six
denied billboard applications."  (Docket 114 at pp.
1-2). Nowhere in plaintiffs' oral or written arguments do
they identify a reason, let alone demonstrate good cause, for
their failure to include a theory of recovery based on the
City's denial of Lamar's six billboard applications
made two months prior to the vote on the Citizen Initiatives.
assert " the City knew for over two years that
Plaintiffs would be requesting damages for the six
signs." (Docket 118 at p. 11). If true, plaintiffs, in
addition to having until December 30, 2011, to move to amend
their pleadings, would also have been aware of their theory
of damages for over two years and yet did not seek to amend
their complaint. Plaintiffs now seek to recover damages for
the City's " de facto" application of the
Citizen Initiatives vis-à-vis the six denied billboard
applications which constitutes $260,833 of plaintiffs'
overall $770,758 damage request, a not insubstantial amount
for a claim that was not pled. (Dockets 118 at pp. 1, 30-35;
court will not ignore Fed.R.Civ.P. 16(b) and re-start the
complaint and answer proceedings, re-open discovery, or
require further briefing on these threshold issues at this
late date. The plaintiffs filed their complaint in 2011 and
the issues, as contained in the 2011 complaint, were
well-developed and refined. Plaintiffs' request
to amend the complaint to include a claim for the City's
de facto application of the Citizen Initiatives is
denied. In addition, plaintiffs' motion to amend their
complaint is denied as moot because plaintiffs'
regulatory takings claims are not ripe.
Plaintiffs' Regulatory Takings Claims Are Not
Regulatory Takings Claims and Lingle
The Takings Clause of the Fifth Amendment, made applicable to
the States through the Fourteenth . . . provides that private
property shall not 'be taken for public use, without just
compensation.'" Lingle v. Chevron U.S.A.
Inc., 544 U.S. 528, 536, 125 S.Ct. 2074, 161 L.Ed.2d 876
(2005) (quoting U.S. Const. amend. V). " [T]he Takings
Clause 'does not prohibit the taking of private property,
but instead places a condition on the exercise of that
power.'" Id. at 536 (quoting First
English Evangelical Lutheran Church of Glendale v. County of
Los Angeles, 482 U.S. 304, 314, 107 S.Ct. 2378, 96
L.Ed.2d 250 (1987). " In other words, [the Takings
Clause] 'is designed not to limit the governmental
interference with property rights per se, but rather
to secure compensation in the event of otherwise
proper interference amounting to a taking.'"
Id. at 536-37 (emphasis in original) (quoting
First English, 487 U.S. at 315). The Court "
emphasized [the] role [of the Takings Clause] in
'bar[ring] Government from forcing some people alone to
bear public burdens which, in all fairness and justice,
should be borne by the public as a whole.'"
Id. at 537 (quoting Armstrong v. United
States, 364 U.S. 40, 49, 80 S.Ct. 1563, 4 L.Ed.2d 1554
(1960) (further citations omitted).
Supreme Court identified two categories of regulatory action
which constitute per se takings under the Fifth
Amendment. " First, where government requires an owner
to suffer a permanent physical invasion of her
property--however minor--it must provide just
compensation." Id. at 538 (citing Loretto
v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 102
S.Ct. 3164, 73 L.Ed.2d 868 (1982)). Second, regulations that
" completely deprive an owner of ' all
economically beneficial use' of her property. . . .
[require] the government [to] pay just compensation for such
'total regulatory takings,' except to the extent that
'background principles of nuisance and property law'
independently restrict the owner's intended use of the
property." Id. (original brackets omitted)
(quoting Lucas v. South Carolina Coastal Council,
505 U.S. 1003, 1019, 1026-32, 112 S.Ct. 2886, 120 L.Ed.2d 798
Lingle Court explained that outside of these two categories
of regulatory action, and the special context of land-use
exactions, see Nollan v. California Coastal
Comm'n,483 U.S. 825, 107 S.Ct. 3141, 97 L.Ed.2d 677
(1987); Dolan v. City of Tigard,512 U.S. 374, 114
S.Ct. 2309, 129 L.Ed.2d 304 (1994), " regulatory takings
challenges are governed by the standards set forth in
Penn Central Transp. Co. v. New York City,438 U.S. 104,
98 S.Ct. 2646, 57 L.Ed.2d 631 (1978)." Lingle,
544 U.S. at 538. The Penn Central Court instructs lower
courts to engage in " ad hoc, factual inquiries"
when evaluating regulatory takings claims. Penn
Central, 438 U.S. at 124; see also Lingle, 544
U.S. at 538; Tahoe-Sierra Pres. Council, Inc. v. Tahoe
Reg'l Planning Agency,535 U.S. 302, 326, 122 S.Ct.
1465, 152 L.Ed.2d 517 (2002) (" In the decades following
[Pennsylvania Coal Co. v. Mahon,260 U.S. 393, 43
S.Ct. 158, 67 L.Ed. 322 (1922)], ...