Opinion
Civil Action No. 3:00CV-2481-D
October 7, 2002
ORDER
The four defendants who have been served with process in this case move for partial judgment on the pleadings and for partial summary judgment. The court grants the motion for partial summary judgment and, pursuant to Fed.R.Civ.P. 4(m), directs plaintiffs to demonstrate good cause for not effecting service on the other 23 defendants.
I
This is an action by plaintiffs Florentino Ramirez, individually as a Trustee of the Carmen L. Ramirez Testamentary Trust, Florentino A. Ramirez, Mario E. Ramirez, and Evangelina Ramirez-Smith against defendants City of Dallas ("City"), Dallas Landmark Commission ("DLC"), the DLC's 23 commissioners, sued individually and in their official capacities, and City employees Jim Anderson ("Anderson") and Jack Guerra ("Guerra"), sued individually and in their official capacities, arising from the DLC's 1994 designation of a tract of real property ("Property") located at 1615 McKinney Avenue, Dallas, Texas, as a historical landmark, which effected a demolition moratorium. Plaintiffs contend that other structures in the neighborhood were systematically demolished and replaced with major business building developments and highways with the City's consent and encouragement. They maintain that the Property was designated as a historical landmark without prior notice to them and an opportunity to be heard, and that the moratorium adversely affected the marketability and economic use of the Property. Plaintiffs allege that a prospective purchaser of the Property rescinded its offer of $1.4 million when defendant Anderson advised plaintiffs' broker of the historical landmark designation, and that they have since received no other offers to purchase the Property. They posit that they tried unsuccessfully to obtain a decision from DLC rescinding the designation, and that defendants Anderson and Guerra announced a decision to approve the historical landmark designation of the Property and prepared a proposed ordinance that restricted its use. Plaintiffs aver that their civil rights have been violated because, had they not been Hispanic, defendants would not have designated the Property as a historical landmark and would have assured that plaintiffs received actual notice of their proposed actions and an opportunity to oppose them.
Plaintiffs brought five claims for relief, alleging that defendants (1) had violated 42 U.S.C. § 1982 by depriving them of legitimate use of their real property; (2) were liable under 42 U.S.C. § 1983 for depriving them of their civil rights; (3) had effected the inverse condemnation of plaintiffs' property, intitling plaintiffs to fair compensation; (4) had violated plaintiffs' Fourteenth Amendment right to due process; and (5) had violated plaintiffs' civil rights and right to due process by the unequal application of law. In a January 17, 2001 order, the court granted defendants' December 5, 2000 motion to dismiss federal claims to the extent that it dismissed without prejudice plaintiffs' third and fourth causes of action and the due process component of their fifth cause of action. The court held that these claims were not ripe because there are adequate state remedies available to plaintiffs.
Defendants filed two motions on July 24, 2002 to which plaintiffs have not responded. In one motion, defendants City, DLC, Anderson, and Catalina Valdez-Scott ("Valdez-Scott") (who is the only DLC commissioner who has been served) move under Rule 12(c) for partial judgment on the pleadings. The City, DLC, Anderson, and Valdez-Scott also move for partial summary judgment. They contend that (1) plaintiffs' remaining claims are time-barred; (2) defendants did not deprive plaintiffs of a constitutionally recognized property right; (3) defendants did not deprive plaintiffs of procedural due process; (4) defendants did not deprive plaintiffs of substantive due process; and (5) defendants did not deprive plaintiffs of equal protection of the law.
They move to dismiss on the following grounds: (1) plaintiffs cannot recover punitive damages against the City under §§ 1982 and 1983; (2) they cannot recover on their equal protection claim because they have not pleaded that they are members of a racial minority; (3) they cannot recover on their equal protection claim because they have not pleaded that defendants have refused to establish historic districts on properties owned by non-Hispanics; (4) their equal protection claim fails because they have not alleged that defendants have refused to establish historic overlay districts on similar historic properties because of the race or ethnicity of their owners; (5) they cannot recover under § 1982 because they have failed to plead that they are members of a racial minority; (6) they cannot recover under § 1982 because they have failed to plead that defendants have refused to establish historic districts on properties that are owned by non-Hispanics; (7) they cannot recover under § 1982 because they have failed to plead that defendants have refused to establish historic overlay districts on properties because of the race or ethnicity of their owners; (8) they cannot recover against Anderson and Valdez-Scott in their official capacities because these claims are really against the City; (9) they cannot recover against Anderson and Valdez-Scott in their individual capacities because they have failed to allege actions that violated clearly established law; (10) they cannot recover against Anderson and Valdez-Scott in their individual capacities because they have failed to allege the basis on which they reasonably should have known that their actions violated clearly established law; and (11) they cannot recover against Anderson and Valdez-Scott in their individual capacities because they have failed to allege that they deprived plaintiffs of an interest in property recognized by law.
II
The court need only address defendants' motion for partial summary judgment, and it therefore denies without prejudice as moot defendants' Rule 12(c) motion for partial judgment on the pleadings.
A
As the court has already noted, defendants filed their motion for partial summary judgment on July 24, 2002. Under N.D. Tex. Civ. R. 7.1(e), plaintiffs' response was due August 13, 2002. Defendants even pointed out to plaintiffs in their September 18, 2002 motion for a trial continuance that plaintiffs had not timely responded to the motion. See Ds. Sept. 18, 2002 Mot. Cont. at 2 ¶ 3. Plaintiffs did not attempt to respond after that notice. Although plaintiffs' failure to respond does not permit the court to enter a "default" summary judgment, the court is permitted to accept defendants' evidence as undisputed. Tutton v. Garland Indep. Sch. Dist., 733 F. Supp. 1113, 1117 (ND. Tex. 1990) (Fitzwater, J.).
B
The claims that remain in this case are plaintiffs' causes of action under §§ 1982 and 1983 and their equal protection claim (which necessarily is brought under § 1983). Defendants contend first that plaintiffs' causes of action are time-barred. Limitations is an affirmative defense on which they will have the burden of proof at trial. To obtain summary judgment, "if the movant bears the burden of proof on an issue, . . . he must establish beyond peradventure all of the essential elements of the claim or defense to warrant judgment in his favor." Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986). In the absence of a response from plaintiffs, the court can accept defendants' evidence as undisputed. Tutton, 733 F. Supp. at 1117.
Defendants have adduced evidence that plaintiffs were told that the DLC had initiated the procedure to establish a historic overlay on the Property by April 1996. They also saw a notice of zoning request on the property at that time. The applicable limitations period for plaintiffs' claims under §§ 1982 and 1983 is two years. Plaintiffs did not file this lawsuit until November 13, 2000, well after the two-year limitations period had expired. Defendants have established that plaintiffs' claims are barred by limitations.
C
Defendants also rely on other grounds to argue that, even if the claims are not time-barred, plaintiffs are not entitled to recover. Where the summary judgment movants will not have the burden of proof at trial, they can meet their summary judgment obligation by pointing the court to the absence of evidence to support plaintiffs' claims. See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once they do so, the opposing parties must go beyond their pleadings and designate specific facts showing that there is a genuine issue for trial. See id at 324; Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (per curiam). Summary judgment is mandatory if the parties fail to meet this burden. Little, 37 F.3d at 1076. Their failure to adduce proof on any essential element of a claim renders all other facts immaterial concerning that claim. See Celotex, 477 U.S. at 323.
Plaintiffs have not responded to defendants' motion and have therefore failed to raise genuine issues of material fact. Accordingly, even if the claims were not barred by limitations, defendants would be entitled to summary judgment on these additional grounds.
The court therefore holds that plaintiffs' remaining claims against defendants City, DLC, Anderson, and Valdez-Scott must be dismissed with prejudice.
III
Pursuant to Rule 4(m), the court orders that plaintiffs demonstrate good cause, in accordance with Rules 4(m) and 6(b), for failing to effect service on the remaining defendants in this case. This must be done by filing a written response with the clerk of court no later than October 28, 2002. If the court does not receive the required response on or before the response date, or if the response received by the court fails to demonstrate good cause, the court will dismiss this action as to those defendants without prejudice by authority of Rule 4(m).
* * *
Plaintiffs' claims under §§ 1982 and 1983 are dismissed with prejudice. The claims that are the subject of the court's January 17, 2001 order are dismissed without prejudice. The court will defer entering a final judgment until it has determined whether the balance of this action that relates to the unserved defendants is subject to dismissal under Rule 4(m).