United States District Court, D. Minnesota
Julie N. Nagorski and James M. Susag, LARKIN HOFFMAN DALY & LINDGREN LTD., 7900 Xerxes Avenue South, Suite 1500, Minneapolis, MN 55431, for plaintiffs.
Mark K. Thompson, MARK K. THOMPSON LAW OFFICE LLC, 842 Raymond Avenue, Suite 200, Saint Paul, MN 55114, for defendants Paul and Paula Caryotakis.
George C. Hoff, Jared D. Shepherd, and Justin L. Templin, HOFF BARRY & KOZAR, P.A., 775 Prairie Center Drive, Suite 160, Eden Prairie, MN 55344, for defendants City of Plymouth, Eric Jacobson, Michael Goldstein, Lara Newberger, Barb Northway, and Laurie Ahrens.
MEMORANDUM OPINION & ORDER ADOPTING REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
JOHN R. TUNHEIM, District Judge.
This case arises out of a contentious relationship between neighbors that developed as a result of vegetation growing on the portion of Andrew and Catherine Mack's property that borders the property of Defendants Paul and Paula Caryotakis ("the Caryotakises"). After the Caryotakises repeatedly complained to the City of Plymouth ("the City") about vegetation on that portion of the property, the City issued a citation to Andrew and Catherine Mack ("Plaintiffs") for violation of a city ordinance governing weed maintenance. Plaintiffs brought this action against the Caryotakises, the City, and several individual employees of the City ("City Defendants"), (collectively, "Defendants"). Plaintiffs allege constitutional claims against the City and City Defendants and state law claims against the Caryotakises. Upon the City and City Defendants' motion to dismiss for failure to state a claim and the Caryotakises' motion to dismiss for lack of jurisdiction, United States Magistrate Judge Franklin L. Noel issued a Report and Recommendation ("R&R") recommending that the Court dismiss all of Plaintiffs' claims, to which Plaintiffs objected. Although Plaintiffs have proposed amendments to the complaint, in light of the motions to dismiss, the Court concludes that the proposed amendments cannot cure the deficiencies that warrant granting both motions to dismiss because Plaintiffs have not sufficiently alleged that the issuance of the citation was vindictive or based on animus. Thus, the Court will adopt the R&R, grant both motions to dismiss, and deny Plaintiffs' motion to amend.
The Court recites the facts underlying this dispute according to Plaintiffs' allegations. Plaintiffs live on a piece of property that is adjacent to property owned by the Caryotakises. (First Am. Compl. ¶¶ 13-14, July 30, 2013, Docket No. 13.) Portions of Plaintiffs' property "are wooded and... not maintained as a traditional English-style lawn, " and Plaintiffs wished to develop those portions "as a wetland buffer strip." ( Id. ¶ 21.)
I. ONGOING DISPUTE BETWEEN PLAINTIFFS AND CARYOTAKISES
Plaintiffs allege that beginning in the summer of 2004, the Caryotakises "repeatedly entered the Mack Property" near the pond in the north portion of Plaintiffs' property, and often would mow the grasses and other plants on that portion of the property without permission. ( Id. ¶ 17-20.) From 2008 through 2010, the Caryotakises requested Plaintiffs' permission to enter Plaintiffs' property and "alter the vegetation growing there, " on several occasions but Plaintiffs refused, after which the Caryotakises promised to stop entering the property but nonetheless continued to do so. ( Id. ¶¶ 24-26.) In 2011, Andrew Mack observed Paul Caryotakis on Plaintiffs' property and demanded that he stop entering the property and altering the vegetation, although Mack again observed Paul Caryotakis on the property. ( Id. ¶¶ 28, 31.)
In response to these alleged instances of trespass by the Caryotakises, Plaintiffs made a report to the City Police Department, which then sent a trespass notice to the Caryotakises, prohibiting them from entering Plaintiffs' property for a year. ( Id. ¶ 33.) Shortly thereafter, Plaintiffs received a "nuisance weed notice from the Caryotakises on City letterhead, " citing Plymouth City Code ("City Code") section 810.01 ("the Ordinance"), which provides that "[w]eeds, tall grasses and other rank or harmful vegetation growing upon any private property... in the City exceeding the height of eight (8) inches on properties other than Agricultural or Natural Preserve or buffer strips shall be cut.... by the owner of the property." ( Id. ¶¶ 35-36; id., Ex. B.) After receiving the notice, Plaintiffs contacted a city forestry technician, who inspected Plaintiffs' property and concluded that it did not violate the Ordinance. ( Id. ¶¶ 7, 38.)
Plaintiffs then sought to build a fence to separate their property from that of the Caryotakises, for which they received a permit from the City. ( Id. ¶ 41.) In June 2011, Paula Caryotakis noticed Andrew Mack building the fence and "orally accosted him, " after which Paula Caryotakis brought two police officers to the location where the fence was being built who informed Andrew Mack that "he was trespassing and cutting down trees on the Caryotakis property, " and gave him a trespass notice prohibiting him from entering their property until December 31, 2011. ( Id. ¶ 45.) Thereafter, the Caryotakises began sending emails to the City or city employees complaining about Plaintiffs' fence, including emails on June 5, 2011, July 4, 2011, July 11, 2011, August 9, 2011, and August 10, 2011. ( Id. ¶¶ 46-53.) The City treated several of these emails as formal complaints and inspected the fence, concluding that it was not in violation of any portion of the City Code. ( Id. ¶¶ 47, 49, 52.) The Caryotakises continued to send emails, now to Plaintiffs in addition to the City. ( Id. ¶¶ 57-59.) Plaintiffs called the City to complain about the emails and the City indicated that the Caryotakises would be informed that they must stop emailing Plaintiffs. ( Id. ¶ 59.) The Caryotakises continued to send emails to and contact the City and city employees about Plaintiffs' fence, but the City never found that the fence violated the City Code. ( Id. ¶¶ 62-67.)
II. CITY ENFORCEMENT OF THE ORDINANCE
Plaintiffs received a letter from a city forestry technician on July 6, 2012, stating that they were in violation of the Ordinance because of the height of vegetation on their property. ( Id. ¶ 70.) Plaintiffs allege that at that time, the vegetation on their property did not violate the Ordinance because the City did not identify any species of vegetation that fell under the Ordinance's requirement and because that portion of their property was exempt from the Ordinance because it was a "buffer strip." ( Id. ¶ 71.) Plaintiffs also allege that the vegetation on their property "was substantially identical to that growing on other adjacent and nearby properties, as well as many City-owned properties." ( Id. ¶ 72.)
Plaintiffs allege that during the summer of 2012 the Caryotakises continued to contact city employees to complain about Plaintiffs' vegetation. ( Id. ¶¶ 74-76, 78.) On July 16, 2012, Plaintiffs received a letter from the City Attorney stating that their fence complied with the City Code, but gave no indication that the vegetation violated the Ordinance. ( Id. ¶ 77.) On September 11, 2012, Paula Caryotakis appeared at a City Council meeting and "presented false information and complained about the vegetation on the Mack Property, " including "photographs that were held out to have been thenrecently taken, " but were actually taken during the summer of 2011. ( Id. ¶ 79.) On September 14, 2012, the City Manager sent Plaintiffs a letter stating that the photographs presented at the City Council meeting showed that the vegetation on their property violated the Ordinance and that the City intended to enforce the Ordinance against them. ( Id. ¶ 80.) A city forestry technician inspected Plaintiffs' property again on September 17, 2012, without Plaintiffs' permission and concluded that the vegetation violated the Ordinance. ( Id. ¶¶ 81-82.)
On October 10, 2012, the City Manager requested that the City Police Department issue a citation to Plaintiffs for violating the Ordinance, which a police officer did on October 12, 2012. ( Id. ¶¶ 84-85.) Thereafter, Plaintiffs, through counsel, contacted city employees and officials several times, requesting that they enforce the Ordinance ...