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Telford v. Bradeen

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

February 27, 2018

HOLLI TELFORD personally and as assignee of the claims of Brenda Burton, Plaintiff,




         Plaintiff 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.


         Rule 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).

         Under 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).

         In 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.


         The 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 (“ISLA”);
.Americans with Disabilities Act (“ADA”); .Fair Housing Act (“FHA”);
.regulations of the United States Department of Housing and Urban Development (“HUD”);
.“Equal Protection Clause Of The Civil Rights Statute[;]”
.Real Estate Settlement Procedures Act (“RESPA”);
.Ex parte Young, 209 U.S. 123 (1908);
.covenant of quiet enjoyment;
.the South Dakota Deceptive Trade Practices Act;
.conversion; .fraud or constructive fraud; and
.civil conspiracy.

Id. at pp. 1-7.[1]

         The 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 helpful.

         An 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.

         Plaintiff 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.” Id.

         Plaintiff had been working with Southern Hills on a title insurance policy. Id. Plaintiff began coordinating with Southern Hills, someone referred to as “ARMSTRONG[, ]”[2]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.

         This 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 action[.]” Id.

         Plaintiff 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.

         Plaintiff 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 ...

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