United States District Court, D. South Dakota, Western Division
JEFFREY L. VIKEN CHIEF JUDGE
Holli Telford and Marty Noble, appearing pro se, filed this
action against the defendants. (Docket 8). The verified
amended complaint includes wide-ranging allegations, and
plaintiffs contend a variety of federal and state laws
support their case. Id. All defendants filed motions
to dismiss. Defendant Jared Eldridge (“Judge
Eldridge”), a Utah state court judge, submitted a
motion to dismiss based on Rules 12(b)(1), (4) & (6) of
the Federal Rules of Civil Procedure. (Docket 39). Defendant
American National Property & Casualty Insurance Co.
(“ANPC”) moved to dismiss under Rule 12(b)(6).
(Docket 41). Defendants Boardwalk Property Management
Company, Kevin West, Austin Cales, David Park, Lehi Oassi
LLC, Robert J. Poulsen and Poulsen & Skousen
(“Boardwalk defendants”) filed a motion to
dismiss based on Rules 12(b)(2) & (6). (Docket 43).
Defendant Larry Deiter, Director for the South Dakota
Division of Insurance, (“Director Deiter”), moved
to dismiss the claims against him via Rules 12(b)(1) &
(6). (Docket 72). Several filings from plaintiffs and
defendants relate to service and entries of default. See,
e.g., Dockets 31, 37 & 53. Plaintiffs filed various
motions in response to defendants' filings. (Dockets 37,
48, 62 & 67). The court evaluates each pending matter in
turn before addressing other issues.
order to properly dismiss for lack of subject matter
jurisdiction under Rule 12(b)(1), the complaint must be
successfully challenged on its face or on the factual
truthfulness of its averments.” Titus v.
Sullivan, 4 F.3d 590, 593 (8th Cir. 1993) (internal
citation omitted). “In a facial challenge to
jurisdiction, all of the factual allegations concerning
jurisdiction are presumed to be true and the motion [to
dismiss] is successful if the plaintiff fails to allege an
element necessary for subject matter jurisdiction.”
Id. (internal citation omitted).
“Jurisdictional issues, whether they involve questions
of law or of fact, are for the court to decide.”
Osborn v. United States, 918 F.2d 724, 729 (8th Cir.
1990). “A plaintiff has the burden of establishing
subject matter jurisdiction.” Jones v. Gable,
470 F.3d 1262, 1265 (8th Cir. 2006).
Rule 12(b)(6), a plaintiff 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). Two “working principles” underlie
Rule 12(b)(6) analysis. See Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). First, courts are
not required to accept as true legal conclusions
“couched as . . . factual allegation[s]” in the
complaint. See Id. “[A] complaint must allege
‘more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not
do.' ” Torti v. Hoag, 868 F.3d 666, 671
(8th Cir. 2017) (quoting Twombly, 550 U.S. at 555). The court
does, however, “take the plaintiff's factual
allegations as true.” Braden v. Wal-Mart Stores,
Inc., 588 F.3d 585, 594 (8th Cir. 2009). Second, the
plausibility standard is a “context-specific task that
requires the reviewing court to draw on its judicial
experience and common sense.” Iqbal, 556 U.S. at 678
(citation omitted). The complaint is analyzed “as a
whole, not parsed piece by piece to determine whether each
allegation, in isolation, is plausible.” Braden, 588
F.3d at 594. The court “will not mine a lengthy
complaint searching for nuggets that might refute obvious
pleading deficiencies.” Neubauer v. FedEx
Corp., 849 F.3d 400, 404 (8th Cir. 2017) (internal
alterations and quotation marks omitted).
applying these principles, the court must construe
plaintiff's pro se complaint liberally. See Stone v.
Harry, 364 F.3d 912, 914 (8th Cir. 2004). This means
“that if the essence of an allegation is discernible,
even though it is not pleaded with legal nicety, then the
district court should construe the complaint in a way that
permits the layperson's claim to be considered within the
proper legal framework.” Jackson v. Nixon, 747
F.3d 537, 544 (8th Cir. 2014) (internal quotation marks
omitted). The complaint “still must allege sufficient
facts to support the claims advanced.” Stone, 364 F.3d
amended complaint provides an array of legal foundations.
(Docket 8 at pp. 17-36). Those include:
• Racketeering Influenced and Corrupt Organizations Act
• Fair Housing Act (“FHA”);
• Electronic Funds Transfers Act (“EFTA”);
• Fair Credit Reporting Act (“FCRA”);
• Ex parte Young, 209 U.S. 123 (1908);
• conspiracy to violate 42 U.S.C. § 1983;
• covenant of good faith and fair dealing;
• covenant of quiet enjoyment;
• abuse of process; and
• unjust enrichment.
first half of the amended complaint features the majority of
plaintiffs' factual assertions. Id. at pp. 1-17.
There are also legal conclusions throughout the first half.
Id. The following recitation is not the court's
findings; it is an account of most of the factual assertions
in the amended complaint set forth here for the purpose of
ruling on defendants' motions. Quoted portions of the
amended complaint are included where helpful for capturing
court notes the facts of this case share many similarities
with an action Ms. Telford brought in the Central Division of
the United States District Court for the District of South
Dakota. See Telford v. Dep't of Hous. & Urban
Dev., No. 3:16-CV-03033, 2017 WL 1653305, at *1-4
(D.S.D. May 1, 2017). The Central Division case made
“various claims against multiple defendants relating to
eviction from a trailer home park in Green River, Wyoming;
relating to litigation concerning the eviction in Wyoming
state and federal court; relating to alleged deprivation of
certain telecommunication services in Wyoming; and relating
to communication with the United States Department of Housing
and Urban Development (HUD) and at least one of its employees
regarding their Wyoming housing situation.”
to this case, plaintiff Telford entered into a rental
contract with plaintiff Noble for Noble to reside in a mobile
home located in Utah. (Docket 8 at p. 3). Noble is allegedly
disabled. Id. The plaintiffs also entered into a
rental contract with the owner of the mobile home park.
Id. at p. 4. Part of the contract between plaintiffs
and the park owner made the owner “responsible for yard
care and outside maintenance activities given the tenants
[sic] disabilities of brain injury, attendant seizures, and
because the tenant was crippled and therefore mobility
challenged.” Id. A “weed tree
problem” within the mobile home park developed.
this problem made it difficult for Noble to access the mobile
home. Id. at p. 5. Telford sought payment from the
park owner based on the tree problem. Id. at pp.
5-6. The park owner refused to pay Telford or fix the tree
problem as she requested. Id. at p. 6. Plaintiffs
unsuccessfully sought payment and solutions to the tree
problem from parties the amended complaint refers to as
“the OASIS defendants[.]” Id. at pp.
owners” then made Noble's lease a month-to-month
arrangement and posted an eviction notice on the mobile home.
Id. at pp. 7-8. Defendant Boardwalk Property
Management Co. notified Telford “by text” of the
forthcoming eviction action. Id. at p. 8. Plaintiffs
allege the eviction notice failed to meet certain legal
requirements. Id. Defendants Mr. Poulsen and Poulsen
& Skousen were part of the legal team representing the
parties evicting plaintiffs. Id. at pp. 9-10.
eviction action proceeded in Utah state court before Judge
Eldridge. Id. at p. 10. Plaintiffs claim the
opposing legal representatives lied about Telford's
history of rent payments and failed to serve plaintiffs with
summary judgment filings. Id. at pp. 10-11.
According to plaintiffs, Judge Eldridge conspired against
them and granted summary judgment for the opposing side.
Id. at pp. 11-12.
amended complaint then switches gears and begins discussing
interactions between Telford and ANPC. Id. at p. 13.
In March and April of 2017, Telford obtained home and auto
insurance from ANPC. Id. Telford set up her policy
with ANPC so it automatically withdrew payments from her bank
account. Id. at p. 14. Telford alleges ANPC
overcharged her in violation of the EFTA. Id. at pp.
2017, Telford visited Noble's home in Utah and learned
the tree problem had progressed, causing water line issues,
damage to the home's interior and black mold.
Id. at p. 15. Telford “alleges that at some
time between [her] visit to the OASIS' property in July
of 2017 and when OASIS posted their lease termination notice
on [Noble's] dwelling's door, that OASIS and her
agents conspired with [ANPC] and her agents, to fraudulently
strip [Telford] of insurance coverage to properties the
OASIS' [sic] defendants planned on converting under the
abandonment laws.” Id. at p. 16. According to
Telford, ANPC canceled her auto insurance policy in violation
of EFTA and engaged in fraudulent actions with respect to her
insurance for her home. Id. Telford asserts she
attempted to contact Director Deiter about investigating
ANPC's fraud, but no investigation has occurred.
Id. at p. 17.
plaintiffs filed this lawsuit.