United States District Court, D. Oregon, Portland Division
TERRY W. EMMERT sometimes doing business under the name EMMERT DEVELOPMENT COMPANY, Plaintiff,
CLACKAMAS COUNTY, Defendant.
Hollis K. McMilan, HOLLIS K. McMILAN, P.C., Portland, OR, Kenneth C. Bauman, Portland, OR, Attorneys for Plaintiff.
Stephen L. Madkour, Alexander Gordon, OFFICE OF CLACKAMAS COUNTY COUNSEL, Oregon City, OR, Attorneys for Defendant.
OPINION AND ORDER
DENNIS J. HUBEL, Magistrate Judge.
Before the Court is Defendant Clackamas County's motion to dismiss Plaintiff Terry Emmert's ("Plaintiff") complaint without prejudice and with leave to amend, pursuant to Federal Rules of Civil Procedure ("Rule") 8(a)(2), 9(b) and 12(b)(6). At oral argument and in his response brief, Plaintiff essentially conceded that his complaint fails to state a claim for fraud in light of the requirements imposed by Rule 9(b). The Court will therefore limit its analysis to Plaintiff's remaining inverse condemnation and equal protection claims. For the reasons that follow, Defendant's motion (Docket No. 9) to dismiss is granted.
I. FACTS AND PROCEDURAL HISTORY
The present action concerns thirteen tracts of land located within Clackamas County that were or are owned by Plaintiff in his individual capacity or as the sole member of Emmert Development Company, an Oregon limited liability company. Those tracts of land are generally referred to by the parties as: (1) the Hubbard Road Properties; (2) the 142nd Avenue East Properties; (3) the 142nd Avenue West Properties; (4) the Morning Way Properties; (5) the Con Battin Road Property; (6) the Sunnyside Road Property; (7) the 13171 Property; (8) the 15576 Property; (9) the 14785 Property; (10) the Clear Creek Estates Property; (11) the Emmert View Court Property; (12) the 11791 Property; and (13) the Southeast 114th Properties.
Plaintiff's complaint alleges the following facts, which the Court accepts as true. In paragraphs ten through fifteen of the complaint, Plaintiff alleges that Defendant broke a verbal promise to purchase the Hubbard Road Properties and the 142nd Avenue East Properties, and then proceeded to discourage buyers from purchasing the 142nd Avenue East Properties and threatened to eliminate certain entries and/or attempt to thwart historic uses on two of the Hubbard Road Properties - one of which sold in November 2009.
In paragraphs sixteen through nineteen of the complaint, Plaintiff alleges that a potential buyer rescinded an offer to purchase the 142nd Avenue West Properties in June 2008, when it became apparent that a zone change approved by Defendant in July 2007 would make development of the land "impossible." In paragraphs twenty through twenty-three of the complaint, Plaintiff alleges that Defendant broke a verbal promise to purchase the Morning Way Properties sometime around November 2008, causing him to lose a sale.
In paragraphs twenty-four through twenty-seven of the complaint, Plaintiff alleges that a light rail project caused a piece of land formerly owned by Defendant to revert to the State of Oregon at some unspecified time, and as a result, a buyer rescinded his offer to purchase the Con Battin Road Property on January 28, 2010. In paragraphs twenty-eight through twenty-nine, Plaintiff alleges that he has been unable to obtain access to the Sunnyside Road Property after a road widening project, which in turn has greatly impaired, if not eliminated, Plaintiff's ability to develop or sell the property.
In paragraphs thirty through thirty-two of the complaint, Plaintiff alleges that Defendant broke a verbal promise to purchase the 13171 Property, causing Plaintiff to lose to an unspecified purchaser at an unspecified time. In paragraphs thirty-three through thirty-five of the complaint, Plaintiff generally alleges that Defendant broke a verbal promise to purchase the 15576 Property.
In paragraph thirty-six of the complaint, Plaintiff generally alleges that potential buyers were given false information by Defendant "regarding the lots making up" the 14785 Property, and an unnamed individual who purchased a lot was given unspecified false information that delayed construction and apparently caused Plaintiff to refund her purchase money. In paragraph thirty-seven of the complaint, Plaintiff alleges that a buyer rescinded his offer to purchase a home at the Clear Creek Estates Property after Defendant repeatedly provided false information regarding the suitability of the septic system.
In paragraphs thirty-eight through forty of the complaint, Plaintiff alleges that an unnamed developer refused to purchase the remaining lots at the Emmert View Court Property because Defendant "caused the developer so many problems on the first four lots on which it wanted to build." Plaintiff also alleges that a couple has unsuccessfully tried to obtain a building permit from Defendant after purchasing a lot in 2006. In paragraphs forty-one through forty-two of the complaint, Plaintiff alleges that he lost a sale after Defendant misrepresented the boundary lines of the 11791 Property and that Defendant has refused to allow Plaintiff to develop or sell the property prior to competing a "comprehensive plan."
In paragraphs forty-three through forty-four of the complaint, Plaintiff alleges that Defendant agreed to allow him to use the Southeast 114th Properties for storage purposes and then proceeded to cite him for "illegal storage." In the process of challenging the citation, presumably at some administrative level, Plaintiff alleges that Defendant's employees lied about whether Plaintiff had received permission to use the Southeast 114th Properties for storage purposes.
Based on the foregoing events, Plaintiff filed the present action against Defendant on July 31, 2013, alleging a claim for inverse condemnation under the Oregon and United States Constitutions, a claim under 42 U.S.C. § 1983 for violation of Plaintiff's constitutional right to equal protection under the Fourteenth Amendment, and a claim for common law fraud. On February 19, 2014, the Court heard argument on Defendant's pending motion to dismiss. On April 21, 2014, before this Court issued its opinion, Plaintiff filed an unopposed motion to correct the record, or alternatively, to make roughly 100 pages of exhibits part of the record at the motion to dismiss stage. The following day, April 22, 2014, the Court issued a ...