United States District Court, D. Montana, Missoula Division
NICOLE L. CROY; PAULA JOBE a/k/a PAULA KURTZ; JEFFREY D. COLLINS; CAM J. COLLINS; SHAEN D. MCELRAVY; JODY MCELRAVY; KAREN M. HAYWARD; RONALD C. HAYWARD; and BRAD MAGRUDER, Plaintiffs,
RAVALLI COUNTY, in its official capacity; BOARD OF COMMISSIONERS OF RAVALLI COUNTY, in its official capacity; LEE E. FOSS; FOSS REALTY, INC., a Montana Profit Corporation; WESTERN MONTANA EXCAVATION LLC, a Montana Limited Liability Company; SUNNYSIDE ORCHARDS, LLC, a Foreign Limited Liability Corporation; STARLIGHT INTERESTS, LLC, a Georgia Limited Liability Company; and JOHN DOES 1-15, Defendants. RAVALLI COUNTY, in its official capacity, and BOARD OF COMMISSIONERS OF RAVALLI COUNTY, in its official capacity Cross-Claimants,
LEE E. FOSS; FOSS REALTY, INC., a Montana Profit Corporation; STARLIGHT INTERESTS, LLC, a Georgia Limited Liability Company; SUNNYSIDE ORCHARDS, LLC; a Foreign Limited Liability Corporation; WESTERN MONTANA EXCAVATION LLC, a Montana Limited Liability Company; and JOHN DOES 1-15, Cross-Defendants.
W. MOLLOY, DISTRICT JUDGE
April 26, 2019, Plaintiffs, a group of landowners in Ravalli
County, sued the County ("Public Defendants") as
well as one individual and four business entities
("Private Defendants") in a road dispute, alleging
fifteen causes of action under both federal and state law.
(Doc. 1.) Plaintiffs amended their complaint as a matter of
right on May 17, 2019. (Doc. 4); Fed.R.Civ.P. 15(a)(1)(A).
The Public Defendants answered, bringing a cross-claim
against the Private Defendants. (Doc. 7.) Defendants
Sunnyside Orchards, LLC and Starlight Interests, LLC answered
both the Amended Complaint (Doc. 8), and the Public
Defendants' Cross-Claims, (Doc. 14). Instead of
answering, Defendants Lee E. Foss and Foss Realty, Inc.
(collectively "Foss Defendants") filed motions to
dismiss both the Amended Complaint, (Doc. 9), and the Public
Defendant's Cross-Claims, (Doc. 15). The Foss Defendants
also filed a motion for judicial notice. (Doc. 11.)
August 5, 2019, Plaintiffs sought and received an extension
of time to respond to the Foss Defendants' motion to
dismiss the Amended Complaint. (Docs. 17, 18.) Instead of
responding, Plaintiffs filed a Second Amended Complaint on
August 13, 2019. (Doc. 19.) No party objects to the filing.
(See id.; Doc. 20.) The Second Amended Complaint
adds to and clarifies certain factual allegations, (see
e.g. Doc. 19 at ¶¶ 10, 14), but maintains the
same causes of action, (see Id. at ¶¶
57-121). Pursuant to the consent of the other parties and the
liberal pleading standard outlined in Federal Rule of Civil
Procedure 15, the amended pleading is properly filed.
See Fed. R. Civ. P. 15(a) ("The court should
freely give leave when justice so requires."). As a
result, the First Amended Complaint, (Doc. 4), is no longer
the operative pleading and the Foss Defendants' pending
motion to dismiss that pleading, (see Doc. 9), is
the Foss Defendants' motion for judicial notice indicates
Plaintiffs oppose the motion, (see Doc. 11 at 3),
Plaintiffs did not file a responsive pleading. That failure
is "deemed an admission that the motion is
well-taken." L.R. 7.1(d)(1)(B)(ii). Exhibits A through P
(attached to Doc. 10) are properly noticed as official
records that have been filed with and/or recorded by the
Ravalli County Clerk and Recorder. Fed.R.Evid. 201(b)(2);
see Lee v. City of Los Angeles, 250 F.3d 668, 689
(9th Cir. 2001).
IT IS ORDERED that the Second Amended Complaint (Doc. 19) is
accepted as filed. The case caption is amended as reflected
above to include Plaintiff Paula Jobe a/k/a Paula Kurtz.
FURTHER ORDERED that the Foss Defendants' motion to
dismiss (Doc. 9) is DENIED as MOOT. The Foss Defendants may
refile their motion, or answer, within the 21-days provided
by Rule 12. See Fed. R. Civ. P. 12(a)(1)(A)(i).
FURTHER ORDERED that the Foss Defendants' motion for
judicial notice (Doc. 11) is GRANTED. Judicial notice is
taken of the following documents (attached as Exhibits A
through P to Doc. 10):
A. Quit Claim Deed recorded May 25, 2018, as Document No.
721085, Records of Ravalli County;
B. Warranty Deed recorded January 20, 2017, as Document No.
706503, Records of Ravalli County;
C. Notice of Purchaser's Interest recorded October 7,
2016, as Document No. 703016, Records of Ravalli County;
D. Declaration of Covenants, Road Easements, and Irrigation
Easements for Sunnyside Orchards LLC, recorded October 7,
2016, as Document No. 703015, Records of Ravalli County;
E. Warranty Deed recorded March 25, 1999, at Book 229, Page
751, Records of Ravalli County;
F. Warranty Deed recorded August 8, 1989, at Book 186, Page
818, Records ...