United States District Court, Eastern District of Arkansas, Jonesboro Division
ANTHONY DURBIN, CHRISTINA DURBIN, DAVID TIMMS, BEVERLY TIMMS, DEBBIE HARRIS, JOE HUDSON, and JANICE VANN PLAINTIFFS
CITY OF WEST MEMPHIS, ARKANSAS, JOHN RIMMER, In his official capacity as general manager of the West Memphis Utility Commission, DANA PARKER, In his official capacity as the chairman of the West Memphis Utility Commission, WILLIE BRUCE, LOUTELIOUS HOLMES, JOHN ROSS, SUSAN MARSHALL, BILL BECK, and CARL HOLDEN in their official capacity as Commissioners on the West Memphis Utility Commission DEFENDANTS
Kristine G. Baker, United States District Judge
Plaintiffs allege violations of the Due Process Clause of the Fourteenth Amendment to the United States Constitution and article 2, section 8 of the Arkansas Constitution. Before the Court is the motion to dismiss filed by separate defendants the City of West Memphis, Arkansas (the “City”), and John Rimmer, in his official capacity as the general manager of the West Memphis Utility Commission (Dkt. No. 4). Plaintiffs have responded (Dkt. No. 8), and the City and Mr. Rimmer have replied (Dkt. No. 10). For the reasons that follow, the Court denies the City and Mr. Rimmer’s motion to dismiss (Dkt. No. 4).
According to plaintiffs’ complaint, plaintiffs are tenants of River Town Enterprises, Inc. (“River Town”) and live at the Midway Trailer Park (“Midway”) in West Memphis, Arkansas. Plaintiffs state that River Town owns and operates Midway and that each plaintiff lives at Midway pursuant to a lease agreement with River Town. Plaintiffs state that the West Memphis Utility Commission (the “Commission”) is an entity of the City established under Arkansas Code Annotated § 14-201-105 et seq.
Plaintiffs allege that defendants have contracted with River Town to provide electricity to Midway. Plaintiffs further allege that, under the lease agreements between plaintiffs and River Town, River Town is responsible for paying all utility bills associated with the operation of Midway. Plaintiffs allege that each plaintiff is current on his, her, or their rent payments under his, her, or their respective lease agreement with River Town. Plaintiffs claim that River Town’s account with defendants has become delinquent as a result of River Town’s failure over the last several months to make timely payments under its contract with defendants. Plaintiffs state that they were unaware of River Town’s failure to make payments to defendants.
Plaintiffs claim that defendants terminated the utility services provided to River Town, leaving over 20 residences at Midway, including the homes of all named plaintiffs, without electricity. Plaintiffs allege that the termination of utility services occurred abruptly and without notice to any plaintiff. Plaintiffs state that they have been informed that defendants will not restore utility services to Midway until after River Town’s debt is paid in full. Plaintiffs state that, as a result of the termination of utility services, they are unable to heat their residences, keep and cook food, and are subject to unsafe and unsanitary conditions.
Plaintiffs claim that defendants violated the Due Process Clause of the Fourteenth Amendment to the United States Constitution by terminating plaintiffs’ utility services without notice or an opportunity to contest the termination. Plaintiffs assert an analogous violation of article 2, section 8 of the Arkansas Constitution. Plaintiffs bring their federal claim under 42 U.S.C. § 1983 and their state claim under Ark. Code Ann. § 16-123-105. The City and Mr. Rimmer move to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure and argue that plaintiffs lack standing and fail to set forth in their complaint a legitimate claim of entitlement to utility services that would support a due process claim.
Although the City and Mr. Rimmer move to dismiss pursuant to Rule 12(b)(6), the Court construes their argument on the basis of standing as a motion to dismiss for lack of subject-matter jurisdiction pursuant to Rule 12(b)(1). “It is well established that standing is a jurisdictional prerequisite that must be resolved before reaching the merits of a suit.” City of Clarkson Valley v. Mineta, 495 F.3d 567, 569 (8th Cir. 2007). “We have stated numerous times that “standing is a ‘threshold inquiry’ that ‘eschews evaluation on the merits.’” Id. (quoting McCarney v. Ford Motor Co., 657 F.2d 230, 233 (8th Cir .1981)) (internal quotation marks omitted).
In deciding a Rule 12(b)(1) motion, the Court must first decide if the City and Mr. Rimmer are making a facial or factual challenge to plaintiffs’ complaint. Osborn v. United States, 918 F.2d 724, 729 n.6 (8th Cir. 1990). A facial attack addresses a deficiency in the pleadings, and “the non-moving party receives the same protections as it would defending against a motion brought under Rule 12(b)(6).” Id. The Court must accept as true all factual allegations in the complaint, giving no effect to conclusory allegations of law. Stalley v. Catholic Health Initiatives, 509 F.3d 517, 521 (8th Cir .2007). In a factual attack, the Court is presented with matters outside the pleadings and the non-moving party does not have the benefit of having all his allegations assumed as true. Osborn, 918 F.2d at 279 n.6. Here, the City and Mr. Rimmer raise a facial attack, arguing that plaintiffs “make no allegation of being utility customers of the City of West Memphis” (Dkt. No. 5, at 3).
Standing consists of three elements: (1) injury, (2) causation, and (3) redressability. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992); Stalley, 509 F.3d at 521. However, in cases where the plaintiffs assert a procedural injury, they “can assert that right without meeting all the normal standards for redressability and immediacy, ” Lujan, 504 U.S. at 572 n.7, “so long as the procedures in question are designed to protect some threatened concrete interest of [theirs] that is the ultimate basis of [their] standing.” Id. at 573 n.8; see Mineta, 495 F.3d at 569-70.
As stated above, the City and Mr. Rimmer argue that plaintiffs lack standing because they do not allege that they are utility customers of the City. The Court is not persuaded by this argument. Plaintiffs claim that due process required defendants to provide them notice of the termination of their utility services; plaintiffs’ allegation is not premised on their being the actual utility customers. This may prove significant to their claim on the merits. However, for purposes of standing, the Court finds that the process that plaintiffs claim they were denied, notice and a hearing, is designed to protect a concrete interest in utility services. Based on this, the Court finds plaintiffs’ allegations sufficient to establish standing. The Court denies the City and Mr. Rimmer’s motion to dismiss for lack of standing.
III. Rule 12(b)(6)
To survive a motion to dismiss under Rule 12(b)(6), a complaint must satisfy the pleading requirement of Rule 8(a)(2), which requires “a short and plain statement of the claim that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2); see Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 594 (8th Cir. 2009). “Specific facts are not necessary; the statement need only give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)) (internal quotation marks omitted). However, the complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). “A pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’ Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Id. (citations omitted). “A claim has facial plausibility when the plaintiff pleads factual content that allows the ...