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Lee v. Driscoll

United States District Court, D. South Dakota, Southern Division

March 31, 2016

ROGER and MARY LEE, Plaintiffs,


Lawrence L. Piersol United States District Judge

Plaintiffs Roger and Mary Lee (the Lees) have filed a motion to amend the complaint pursuant to Federal Rule of Civil Procedure 15(a)(2). For the following reasons, the motion will be denied.


All of the claims in this case arise out of repairs that were made on 219th Street, a township road that crosses Rock Creek near the intersection of 428th Avenue in Mathews Township. Rock Creek runs across a corner of the Lees' property though a natural waterway before it meets 219th Street. In the 1980's a bridge crossing Rock Creek on 219th Street was replaced with an 8-foot culvert. A 3-foot culvert was added in 2010.

Both culverts washed out in the 2011 floods. The Township applied for and was awarded FEMA funds to repair the washout. Meetings were held. There was discussion about installing 9-foot culverts, 8-foot culverts, and of restoring the road to the way it was before with an 8-foot culvert and a 3-foot culvert. The public was excluded from some of the meetings, and one meeting was adjourned. Mary Lee was the elected Township Clerk during this time period. She also was excluded from meetings when the general public was excluded. The Township eventually chose to install an 8-foot culvert and later a 3-foot culvert. The cost of the entire project was covered by FEMA funds.

The Lees own land next to the roadway where the repairs were made. They agreed to allow the contractor to use dirt and rocks from their property for the construction project because they believed at least one 9-foot culvert would be installed. The Lees contend that the Township unlawfully accepted the federal funds to simply install the same inadequate drainage structure at a lower cost and planned to use the remaining funds for repairs on other roads. The Lees allege that when they raised concerns about this plan, Defendants retaliated against them by withholding information and violating their constitutional rights. No flooding has occurred on the Lees' land since the repairs were made and they are not claiming any damages for flooding.

On September 25, 2014, the Lees brought this action against the defendants Mathews Township and the members of the Township Board of Supervisors for alleged violations of the following federal constitutional rights: 1) the right to due process; 2) the right to equal protection of the laws; 3) first amendment free speech and associational rights; and 4) taking without just compensation under the Fifth Amendment. The Lees also assert claims for a taking without just compensation under the South Dakota Constitution, as well as conversion and deceit under South Dakota law. In count 8 of the Complaint, the Lees seek declaratory and injunctive relief to end the alleged violations of their constitutional rights and to prevent future infringement of those rights.

On December 2, 2014, the Court issued a Rule 16 Scheduling Order. (Doc. 17.) The deadline to join additional parties and amend the pleadings was February 6, 2015. Later, the parties requested new dates to accomplish discovery and to file dispositive motions, but an extension of the deadline to join additional parties and amend pleadings was never requested and that date remained February 6, 2015. (Docs. 20, 22.) The motion deadline was extended to December 24, 2015. (Doc. 22.)

On December 24, 2015, Defendants filed a motion to dismiss and for summary judgment and a motion to exclude expert testimony by Roger Lee. On that same day, the Lees filed the motion to amend the complaint. All of the motions have been fully briefed.

In their proposed Amended Complaint, the Lees seek to add a new claim on behalf of Mathews Township for recovery "from the bond or other sureties covering improper acts of the township officers." They explain that the claim relates "to the bidding for work at issue in the case and failure to follow statutory requirements for official actions prior to payment of township expenses or obligations." (Doc. 31 at p. 1.) In support of their proposed new claim, the Lees allege:

During the course of investigation of facts in this case, it became known that Mathews Township has never had any official vote to approve the current drainage and road surface grade for the 219th Street repairs and no official meeting of the board of supervisors ever considered changes to the approved plan to improve the drainage by installing at least one nine-foot diameter culvert. At no time did a majority of the township board of supervisors ever consider and approve the placement of an eight-foot culvert prior to it being installed, and there is no record of proper action to ratify the contract amendments required to provide for such changes in the road drainage.
State statutes require the approval of the township board of supervisors for the transaction of business or to approve disbursement of township funds. SDCL §§ 8-5-2; 8-5-4; 8-9-1 (contracts unlawful unless made at board meeting).
Roger and Mary Lee have standing to assert the rights of landowners and taxpayers of Mathews Township and Mary Lee has standing to assert the rights of a Township Clerk to know and record the actions of the township officials.
Roger and Mary Lee, and other township residents, were not informed of the actions of township officials to change the drainage and reconstruction of 219th Street until after the work was completed. Upon discovery of the improper actions of township officials, Roger and Mary Lee ...

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