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Croy v. Ravalli County

United States District Court, D. Montana, Missoula Division

August 20, 2019

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,
v.
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,
v.
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.

          ORDER

          DONALD W. MOLLOY, DISTRICT JUDGE

         On 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.)

         On 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 moot.

         While 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).

         Accordingly, 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.

         IT IS 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).

         IT IS 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 ...

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