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Mosley v. Morley

United States District Court, E.D. Arkansas, Western Division

March 30, 2019

STEVEN A. MOSLEY, SHERYL M. MOSLEY, RONALD KELTNER, and GINNY KELTNER PLAINTIFFS
v.
JIM MORLEY, in his official capacity as Director of Building, Code Enforcement and Permits for the City of Maumelle and CITY OF MAUMELLE, ARKANSAS DEFENDANTS

          OPINION AND ORDER

          KRISTINE G. BAKER UNITED STATES DISTRICT JUDGE.

         Before the Court is a motion for partial summary judgment filed by plaintiffs Steven A. Mosley, Sheryl M. Mosley, Ronald Keltner, and Ginny Keltner (Dkt. No. 44). Defendants Jim Morley, in his official capacity as Director of Building, Code Enforcement and Permits for the City of Maumelle, and the City of Maumelle, Arkansas (collectively, “the City”), have responded in opposition (Dkt. Nos. 45, 46). Plaintiffs have replied (Dkt. No. 49). For the reasons that follow, the Court denies the motion (Dkt. No. 44).

         I. Factual Background

         Plaintiffs, residents of Maumelle, Arkansas, bring this 42 U.S.C. § 1983 action seeking declaratory and injunctive relief against the City. Plaintiffs argue in their present motion that the City violated the substantive due process guarantees of both the United States and Arkansas Constitutions. The Court summarized the factual background of this matter in prior Orders and adopts and incorporates by reference those summaries (Dkt. Nos. 48, 51). Unless otherwise noted, the following additional facts are taken from plaintiffs' statement of undisputed material facts (Dkt. No. 44-2), the City's response to plaintiffs' statement of undisputed material facts (Dkt. No.46), and plaintiffs' reply to the City's response to plaintiffs' statement of undisputed material facts (Dkt. No. 49-2).

         The parties agree that both side fences on the Mosleys' property previously extended all the way down to the river inlet (Dkt. No. 44-2, ¶ 5; Dkt. No. 20, ¶ 10). In June 2016, approximately 20 feet of one of the Mosleys' side fences were damaged by a tree service company hired by the Mosleys' neighbor, Mr. Keltner (Dkt. No. 44-2, ¶ 7). Based on a measurement taken by Mr. Mosley after the onset of this litigation, the fence is approximately 156 feet in length (Id., ¶ 8). Plaintiffs contend that Mr. Keltner was threatened with criminal prosecution by the City because of a damaged side fence the City claimed extended beyond his rear property line (Id., ¶ 15). On June 26, 2014, the following email exchange occurred between City Attorney JaNan Davis and Mr. Morley (Id., ¶ 23).

Ms. Davis wrote the following:
I talked to [a resident] . . . about his fence . . . . He takes the position that the 40 foot portion of his fence that was damaged did not render his fence “materially damaged” for purposes of removing it from the protection of the grandfather provision in the fence ordinance. I told him I would view the fence in sections - not the entire perimeter of the yard and that 40 feet down would be “materially damaged” in my view. But ultimately, it did not matter my view or yours, the [planning commission] would have to grant/deny the variance.

(Id.).

Mr. Morley sent the following response:
I agree with you. My view is that we shouldn't allow the re-building or repair of any portion of a fence in a non-compliant manner.

(Id.).

         Plaintiffs submit the City's responses to interrogatories 28 through 34 to allege that, even after this action was filed challenging the validity of § 14-114(b), the City still could not articulate a rational explanation concerning the meaning of the term “materially challenged” (Id., ¶ 24).

         Plaintiffs now move for partial summary judgment on the issue of whether the City has violated plaintiffs' rights under the Due Process Clauses of the United States and Arkansas Constitutions.

         II. Summary Judgment Standard

         Summary judgment is proper if the evidence, when viewed in the light most favorable to the nonmoving party, shows that there is no genuine issue of material fact and that the defendant is entitled to entry of judgment as a matter of law. Fed.R.Civ.P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A factual dispute is genuine if the evidence could cause a reasonable jury to return a verdict for either party. Miner v. Local 373, 513 F.3d 854, 860 (8th Cir. 2008). “The mere existence of a factual dispute is insufficient alone to bar summary judgment; rather, the dispute must be outcome determinative under the prevailing law.” Holloway v. Pigman, 884 F.2d 365, 366 (8th Cir. 1989). However, parties opposing a summary judgment motion may not rest merely upon the allegations in their pleadings. Buford v. Tremayne, 747 F.2d 445, 447 (8th Cir. 1984). The initial burden is on the moving party to demonstrate the absence of a genuine issue of material fact. Celotex Corp., 477 U.S. at 323. The burden then shifts to the nonmoving party to establish that there is a genuine issue to be determined at trial. Prudential Ins. Co. v. Hinkel, 121 F.3d 364, 366 (8th Cir. 2008). “The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The quantum of proof that the nonmoving party must produce is not precisely measurable, but it must be “enough evidence so that a reasonable jury could return a verdict for the nonmovant.” Id. at 257. On a motion for summary judgment, the court views all the facts in the light most favorable to the nonmoving party and gives that party the benefit of all reasonable inferences that can be drawn from the facts. Rakes v. Life Investors Ins. Co. of Am., 582 F.3d 886, 893 (8th Cir. 2009).

         III. Discussion

         A. Federal Rule Of Civil Procedure 56(c)(1)

         In response to plaintiffs' motion for partial summary judgment, the City argues that certain of plaintiffs' assertions of fact are not supported by citations to admissible evidence pursuant to Federal Rule of Civil Procedure 56(c) (Dkt. No. 46, ¶¶ 5, 15, 24). Plaintiffs submit that their statements are supported by citation to the record evidence, in particular citations to the City's answer, a letter submitted in support of the motion for partial summary judgment, and the City's responses to interrogatories (Dkt. No. 49-2, at 2, 8, 12-13). Plaintiffs in turn argue that the City has not complied with Rule 56(c)(1) (Id., at 2).

         A party moving for, or opposing, summary judgment, must support the party's assertions by citing to particular parts of materials in the record. Fed.R.Civ.P. 56(c)(1)(A) (“A party asserting that a fact cannot be or is genuinely disputed must support the assertion by citing to particular parts of materials in the record such as depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials”). A party may also show that a fact is disputed or undisputed by “showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1)(B).

         The Court has considered the entirety of the record before it in this action. Fed.R.Civ.P. 56(c)(3) (“The Court . . . may consider other materials in the record.”). The Court rejects the City's Rule 56(c) arguments in its response to plaintiffs' statement of undisputed facts in support of their motion for partial summary judgment.

         B. Federal Rule Of Civil Procedure 56(d)

         The City argues in response to two of plaintiffs' statements of undisputed material facts that, currently, it cannot cite to portions of the record to dispute the facts alleged but once discovery has been conducted, the record may show that these facts are in dispute (Dkt. No. 46, ¶¶ 6, 7).

         Under Federal Rule of Civil Procedure 56(d), if a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition to a motion for summary judgment, the court may: (1) defer considering the motion or deny it; (2) allow time to obtain affidavits or declarations or to take discovery; or (3) issue any other appropriate order.

         “As a general rule, summary judgment is proper only after the nonmovant has had adequate time for discovery.” Hamilton v. Bangs, McCullen, Butler, Foye & Simmons, L.L.P., 687 F.3d 1045, 1049 (8th Cir. 2012) (internal quotations omitted). “This option [under Rule 56(d)] exists to prevent a party from being unfairly thrown out of court by a premature motion for summary judgment.” Id. at 1050. However, Rule 56 “does not require trial courts to allow parties to conduct discovery before entering summary judgment.” United States ex rel. Small Bus. Admin. v. Light, 766 F.2d 394, 397 (8th Cir.1985) (per curiam). Thus, district courts possess “wide discretion in denying” Rule 56(d) motions. Anzaldua v. Ne. Ambulance & Fire Prot. Dist., 793 F.3d 822, 836 (8th Cir. 2015).

         A Rule 56(d) affidavit “must set forth specific facts further discovery might uncover, or what information further discovery might reveal.” Hamilton, 687 F.3d at 1049 (affirming denial of Rule 56(d) motion where district court stayed discovery and then ruled on motion for summary judgment, determining plaintiff failed to show what further facts he would uncover through a Rule 56(d) extension). A nonmovant seeking relief under Rule 56(d) must do more than speculate that it may discover additional facts that would overcome a motion for summary judgment, see Stanback v. Best Diversified Prods., 180 F.3d 903, 911 (8th Cir.1999), and must submit an affidavit showing “‘what specific facts further discovery might unveil.'” Id. (quoting Dulany v. Carnahan, 132 F.3d 1234, 1238 (8th Cir.1997)). “Where a party fails to carry [his] burden under Rule [56(d)], ‘postponement of a ruling on a motion for summary judgment is unjustified.'” Id. (quoting Humphreys v. Roche Biomedical Labs., Inc., 990 F.2d 1078, 1081 (8th Cir.1993)).

         The City failed to submit an affidavit or declaration explaining what facts or information further discovery might uncover and why it cannot present facts essential to justify its opposition to plaintiffs' motion for partial summary judgment at this time. As a result, the Court rejects the City's arguments on this point.

         C. Due Process Claims

         Plaintiffs claim that there are no disputed material facts with respect to the issue of whether the City violated plaintiffs' rights under the Due Process Clauses of the United States and Arkansas Constitutions. Plaintiffs maintain therefore that they are entitled to partial summary judgment as a matter of law on these claims. The Court addresses each of plaintiffs' due process claims in turn.

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