United States District Court, D. South Dakota, Western Division
HOLLI TELFORD personally and as assignee of the claims of Brenda Burton, Plaintiff,
RON A. BRADEEN, BRADEEN REAL ESTATE, JEFF STORM, JIM BULTSMA, JIM ASHMORE, SOUTHERN HILLS TITLE COMPANY, MORNINGSIDE PROPERTIES LLP, HEARTLAND REAL ESTATE, VERYLIS R. BOYD, WARNER C. BOYD, FALL RIVER COUNTY SHERIFF ROBERT EVANS and SA DANE RASMUSSEN, in their official capacities, Defendants.
JEFFREY L. VIKEN CHIEF JUDGE
Holli Telford, appearing pro se, filed this action
against the defendants. (Docket 1). The complaint includes
wide-ranging allegations, and plaintiff contends a variety of
federal and state laws support her case. Id. Based
on the record, defendants Robert Evans and Dane Rasmussen
have not been served. Defendants Bradeen Real Estate, Jeff
Storm and Ron A. Bradeen filed answers to the complaint.
(Dockets 20, 21 & 22). Without answering the complaint,
defendants Verylis R. Boyd, Warner C. Boyd and Morningside
Properties LLP filed a motion to dismiss the complaint
(Docket 18) as did defendants Jim Bultsma and Heartland Real
Estate. (Docket 23). After filing an answer, defendants Jim
Ashmore and Southern Hills Title Company (“Southern
Hills”) submitted a motion for judgment on the
pleadings. (Docket 37). In response to the motions defendants
filed, plaintiff filed cross-motions and a request for the
court to take judicial notice. (Dockets 32, 33, 41 & 47).
The court evaluates each pending matter in turn before
addressing other issues.
12(b)(6) of the Federal Rules of Civil Procedure is the basis
on which defendants Verylis R. Boyd, Warner C. Boyd,
Morningside Properties LLP, Jim Bultsma and Heartland Real
Estate move to dismiss the complaint. (Dockets 18 & 23).
A court may dismiss a complaint under Rule 12(b)(6) if it
fails to state a claim upon which the court can grant relief.
Fed.R.Civ.P. 12(b)(6). Defendants Jim Ashmore and Southern
Hills ground their motion to dismiss in Rule 12(c). (Docket
37). “The same standards that govern motions to dismiss
under Rule 12(b)(6) also govern motions for judgment on the
pleadings under Rule 12(c).” Ellis v. City of
Minneaplis, 860 F.3d 1106, 1109 (8th Cir. 2017).
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 plaintiffs 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 plaintiffs
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 at 914.
complaint consists of two halves. (Docket 1). First, the
complaint provides several legal foundations. Id. at
pp. 1-8. Those include:
. Interstate Land Sales Full Disclosure Act
.Americans with Disabilities Act
(“ADA”); .Fair Housing Act
.regulations of the United States Department
of Housing and Urban Development (“HUD”);
.“Equal Protection Clause Of The Civil
.Real Estate Settlement Procedures Act
.Ex parte Young, 209 U.S. 123
.covenant of quiet enjoyment;
.the South Dakota Deceptive Trade Practices
.conversion; .fraud or
constructive fraud; and
Id. at pp. 1-7.
second half of the complaint features plaintiffs factual
claims, along with some legal conclusions. Id. at p.
7-16. The following recitation is not the court's
findings; it is an account of the assertions in the complaint
set forth here for purposes of ruling on defendants'
motions. Quoted portions of the complaint are included where
online sale of undeveloped lots of land in South Dakota
occurred on November 21, 2106. Id. at p. 8.
Defendants Ron A. Bradeen, Bradeen Real Estate and Jeff Storm
conducted the sale, and defendants Morningside Properties
LLP, Verylis R. Boyd and Warner C. Boyd had some ownership
connection to the land.1 Id. From the state of Utah,
plaintiff engaged in the land auction, bid on property and
won. Id. at p. 9. Plaintiff then made a request to
Mr. Storm to move the closing date for the property to the
earlier date of November 30, 2016. Id. She based the
request on her status “as a disabled ‘cash'
buyer[ ]” and her interest in transporting personal
property to South Dakota from a storage unit in Utah.
Id. at pp. 9-10. Mr. Storm agreed, as long as
plaintiff paid in full with cash, which plaintiff did.
Id. at p. 10.
asserts “the Developers” learned she “was a
disabled and poor buyer” and then “made promises
they had no intention of keeping, employed a scheme and
artifice to defraud Plaintiff's [sic] of their [sic]
entire purchase funds; obtained money with respect to the
sales based on untrue statements or omissions; and[ ] engaged
in a course of business which operated as a fraud and deceit
upon Plaintiff and Burton, the purchasers.”
had been working with Southern Hills on a title insurance
policy. Id. Plaintiff began coordinating with
Southern Hills, someone referred to as “ARMSTRONG[,
]”Bradeen Real Estate and Mr. Bradeen
about obtaining a warranty deed for the land auctioned.
Id. Armstrong informed plaintiff that Mr. Bradeen
wanted the closing date to be December 21, 2016, but
plaintiff resisted because that did not work with her plan to
move personal property from Utah to South Dakota.
Id. at pp. 10-11. Eventually, Armstrong agreed the
transaction would close on December 1, 2016. Id. at
p. 11. The closing did not occur on that day because,
according to Armstrong, Mr. Bradeen did not provide the
necessary documents to Southern Hills. Id.
caused problems for plaintiff because she needed to remove
her personal property from the Utah storage unit by December
1, 2016. Id. at pp. 11-12. Plaintiff provided the
storage unit owner with Bradeen Real Estate's phone
number. Id. at p. 12. The storage unit owner
contacted Bradeen Real Estate, who allegedly
“encouraged the Utah storage owner to seize
Plaintiffs' [sic] personal properties[.]”
Id. After the storage unit owner seized
plaintiff's property, plaintiff filed suit in Utah.
Id. Plaintiff alleges “Bradeen defendants
contacted” the court in Utah and “procured th[e]
court officer to obtain a dismissal of the Utah
goes on to assert Armstrong and Southern Hills prepared
documents that are not consistent with federal regulations
and laws. Id. at p. 13. Southern Hills eventually
withdrew from the transaction. Id. at pp. 13-14.
Plaintiff and Mr. Bradeen attempted to work together and
finish the transaction, but the efforts were unsuccessful
because they could not agree and Mr. Bradeen allegedly
drafted unlawful documents. Id. at p. 14.
moved her trailer home in January 2017 to the land from the
auction. Id. Plaintiff ended up interacting with
Dane Rasmussen, who indicated plaintiff lacked proper title
to the land where she positioned her trailer home.
Id. at pp. 14-15. Plaintiff sought services from
utility providers, but she alleges “[t]he Developers
instructed the utility companies that Plaintiffs were
squatting on the ...