Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Stanko v. Big D Oil Co.

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

August 30, 2017

RUDY STANKO, a/k/a “Butch” Stanko, d/b/a The Stampede News, Plaintiff,
v.
BIG D OIL COMPANY; DISTRICT MANAGER BRENDA STEEJDEE, individually and in her official capacity; DON POLICKY, Chief Executive Officer, individually and in his official capacity; and Defendants IX through 3x, individually, will be named after discovery, Defendants.

          ORDER

          JEFFREY L. VIKEN CHIEF JUDGE.

         INTRODUCTION

         Plaintiff Rudy Stanko, d/b/a The Stampede News, filed a two-count complaint against the defendants. (Docket 1). Defendants Big D Oil Company (“Big D Oil”), Brenda Steejdee and Don Policky filed motions to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(6). (Dockets 10, 15 & 20). Mr. Stanko opposes the motions.[1] (Docket 13). Mr. Stanko filed a motion to compel Mr. Policky to file an answer to the complaint. (Docket 14). Mr. Policky opposes the plaintiff's motion. (Docket 17). For the reasons stated below, defendants' motions to dismiss are granted and plaintiff's motion is denied.

         ANALYSIS

         Defendants Big D Oil, Ms. Steejdee and Mr. Policky filed motions to dismiss plaintiff's complaint pursuant to Fed.R.Civ.P. 12(b)(6). (Dockets 10, 15 & 20). Because the three motions assert the same grounds for dismissal under Rule 12(b)(6), the court will only reference the argument of Big D Oil, unless otherwise indicated. The grounds asserted for dismissal are:

1. [The defendants are] not alleged to have acted under color of state law as required by § 1983. (Docket 11 at p. 2);
2. [The defendants] did not conspire with a state actor. Id. at p. 4; and
3. [The defendants are] not state actors under the equal-benefits clause of § 1981, and Stanko is not a minority under the right-to-contract clause of § 1981. Id. at p. 5.

         Rule 12(b)(6) provides for dismissal if the plaintiff fails to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). In evaluating the defendants' Rule 12(b)(6) motion, the court accepts as true all of the factual allegations contained in plaintiff's complaint and grants all reasonable inferences in favor of plaintiff as the nonmoving party. Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 594 (8th Cir. 2009) (“a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.' ”) (citing Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009). See also Crooks v. Lynch, 557 F.3d 846, 848 (8th Cir. 2009) (the court must review “a Rule 12(b)(6) motion to dismiss for failure to state a claim, accepting the facts alleged in the complaint as true and granting all reasonable inferences in favor of the plaintiff, the nonmoving party.”) (brackets omitted). “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the ‘grounds' of his ‘entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do[.]” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations omitted). “[O]nly a complaint that states a plausible claim for relief survives a motion to dismiss.” Iqbal, 556 U.S. at 679.

         Plaintiff's complaint asserts jurisdiction pursuant to Article III, Section 2, of the United States Constitution, the Seventh Amendment and 28 U.S.C. §§ 1331 & 1343. (Docket 1 ¶¶ 1-4). The complaint alleges the following pertinent facts:

a. Big D Oil runs public gas stations throughout Western South Dakota. Id. ¶ 10.
b. Big D Oil Co runs news stands at these gas stations that . . . distribute free literature. Id. ¶ 11.
c. On or about October 1st, 2016, defendant Brenda Steejdee informed the Plaintiff that she would no longer allow the defendant's newspaper at her gas stations that she manages, because of its content. Id. ¶ 12.
d. Defendant Steejdee informed the Plaintiff that she would order all of the store managers to ban The Stampede. Id. ¶ 13.
e. Plaintiff's speech is a cowboy newspaper and is freely distributed. Id. ¶ 14.
f. The Plaintiff's newspaper advertises for the local livestock sale auctions. Id. ¶ 15.
g. The Plaintiff is a professional cattle buyer. Id. ¶ 16.
h. On or about October 1st, 2016, defendant Brenda Steejdee informed the Plaintiff that she would confer with the Chief Executive Officer, and get back to the Plaintiff. Id. ¶ 17.
i. Defendant Steejdee failed to get back to the Plaintiff, and has ignored the Plaintiff's continual request for placement [of The Stampede] in the Big D's gas stations. Id. ¶ 18.

         Count I of the complaint alleges: “Defendants violated the Plaintiff's First Amendment right of speech by banning the distribution of [The Stampede] in the Big D gas stations in an attempt to exercise his First Amendment right of speech, while at the same time allowing other newspapers to be freely distributed or sold.” Id. at pp. 3-4. Count II alleges: “Defendants Bi[g] D Oil CO, Brenda Steejdee, Don Policky, and defendants lX thru 3X conspired to violate the Plaintiff's Constitutional and Statutory rights (Title 42 USC §§ 1981 thru 1985). Especially see 1985(3) (‘Conspiracy to interfere with civil rights―depriving persons ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.