Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Glass v. City of Gulfport

United States District Court, S.D. Mississippi, Southern Division

July 7, 2015

CITY OF GULFPORT, MISSISSIPPI, a Municipal Corporation, and UNKNOWN JOHN AND JANE DOES, A-Z, Defendants.



BEFORE THE COURT is the Motion to Dismiss [2], or alternatively for Summary Judgment, filed by Defendant City of Gulfport, Mississippi. This Motion is now fully briefed. After due consideration of the Motion, the record, and relevant legal authorities, the Court finds that Defendant's Motion to Dismiss [2] should be granted in part as to Plaintiff's federal claims and denied in part without prejudice as to Plaintiff's state law claims. Pursuant to 28 U.S.C. § 1367(c), the Court declines to exercise supplemental jurisdiction over Plaintiffs' remaining state law claims and will remand this matter to state court.


Plaintiff Rebecca Pate Glass ("Plaintiff") filed her Complaint [1-2] against the City of Gulfport, Mississippi (the "City" or "Defendant"), in the Circuit Court of Harrison County, Mississippi, First Judicial District, on January 22, 2015. The Complaint alleges that the City was aware of an open drain in Plaintiff's mother's yard that was in need of a grate, and appears to suggest that Plaintiff's mother's dog may have fallen into the open drain. Compl. [1-2] at 6. Plaintiff also claims that the construction, design, maintenance, or lack of maintenance of the street fronting her mother's real property, which later became Plaintiff's property (the "Property"), has "diverted increased quantities of surface water upon the Property so as to cause unnatural flooding" and "significant damage to the Property." Id. at 7. Plaintiff has attached a Forensic Structural Investigation report prepared by civil engineer Kenneth B. Piaskowski to her Complaint. Id. at 6; Report [1-2] at 10-15. The Complaint advances claims against the City for inverse condemnation, negligence, and purported civil rights violations under 42 U.S.C. §§ 1983, 1985, and 1986. Compl. [1-2] at 7-8. The City removed the case to this Court on February 23, 2015, invoking federal question jurisdiction pursuant to 28 U.S.C. § 1331. Notice of Removal [1] at 2-3.

On March 2, 2015, the City filed its Motion to Dismiss [2] pursuant to Federal Rule of Civil Procedure 12, or alternatively for summary judgment pursuant to Rule 56. Def.'s Mot. [2] at 1-2. The City contends that "[n]one of Plaintiff's federal law claims have merit." Def.'s Mem. in Supp. of Mot. [3] at 2. The City argues that Plaintiff's § 1985 claim fails because Plaintiff has not pleaded any racial or class-based discriminatory animus. Id. at 2-3. The City maintains that because she has pleaded no valid § 1985 claim, Plaintiff's § 1986 claim cannot succeed. Id. at 4. According to the City, the basis of Plaintiff's § 1983 claim appears to be the Takings Clause of the Fifth Amendment, made applicable to the States through the Fourteenth Amendment. Id. at 4-5. The City asserts that Plaintiff has not shown that this claim is ripe for review. Id. at 5-6.

The City also argues that Plaintiff's state law claim for negligence falls within the purview of the Mississippi Tort Claims Act, Miss. Code §§ 11-46-1, et seq. ("MTCA"), but that Plaintiff has not submitted a requisite notice of claim such that her negligence claim should be dismissed. Id. at 6-7 (citing Miss. Code § 11-46-11(1)). The City alternatively contends that the negligence claim is barred by the applicable one-year statute of limitations. Id. (citing Miss. Code § 11-46-11(3)).

In her Response [4], Plaintiff points to the Forensic Structural Investigation report attached to her Complaint and posits that "the improperly diverted water constitutes an unconstitutional taking' of the property of the Plaintiff...." Pl.'s Resp. [4] at 1. Plaintiff argues that "the interests of justice demands [sic] that a Plaintiff be allowed the right to pursue discovery to pursue their [sic] claims." Id. at 2. According to Plaintiff, "Defendant's Motion to Dismiss... is premature and not well founded." Id. at 3. Plaintiff, who is represented by counsel, has not sought leave to amend her Complaint.


A. Relevant Legal Standards

"Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a short and plain statement of the claim showing that the pleader is entitled to relief.'" Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009) (quoting Fed.R.Civ.P. 8(a)(2)). "[T]he pleading standard Rule 8 announces does not require detailed factual allegations, ' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.'" Id. at 678 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). "To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead enough facts to state a claim to relief that is plausible on its face." Gil Ramirez Group, L.L.C. v. Houston Indep. School Dist., 786 F.3d 400, 408 (5th Cir. 2015) (quotation omitted); see also Iqbal, 556 U.S. at 678. "The fundamental question is whether the plaintiff states a claim on which relief may be granted." Morris v. PLIVA, Inc., 713 F.3d 774, 776 (5th Cir. 2013).

"If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56. All parties must be given a reasonable opportunity to present all the material that is pertinent to the motion." Fed.R.Civ.P. 12(d). However, documents attached to a motion to dismiss which are referred to in a complaint and are central to the plaintiff's claims may be considered in assessing a motion to dismiss. In re Katrina Canal Breaches Litigation, 495 F.3d 191, 205 (5th Cir. 2007); see also Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007). The Court may also take judicial notice of public records under Federal Rule of Evidence 201 when considering a Rule 12(b)(6) motion to dismiss. Funk v. Stryker Corp., 631 F.3d 777, 783 (5th Cir. 2011).

The City attached to its Rebuttal [5] a Warranty Deed [5-1] and a plat map [5-2]. While these appear to be public records, the Court will not consider these two exhibits pursuant to Rule 12(d), and will treat the City's Motion as one to dismiss under Rule 12(b)(6).

B. Plaintiff's Federal Claims

1. Plaintiff's Claim Under 42 ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.