United States District Court, N.D. Iowa, Western Division
December 28, 2016
WILLIAM S. WOLLESEN, IOWA PLAINS FARMS, BYRITE FARM SUPPLY, INC., KRISTI J. WOLLESEN, and JOHN W. WOLLESEN, Plaintiffs,
WEST CENTRAL COOPERATIVE, JEFFERY B. STROBURG, SUSAN TRONCHETTI, DARRELL JENSEN, CHRISTOPHER S. COEN, CRAIG HEINEMAN, JAY DREES, ROGER GINDER, JAMES CARLSON, CARYL DOERDER, DELBERT CHRISTENSEN, GLEN CHRISTENSEN, SAM SPELLMAN, DANIEL HELLER, SCOTT B. CHESNUT, HARRY A. AHRENHOLTZ, LINDA BUSS, TIMOTHY WEIGEL, DAWN THIELEN, WESTCO AGRONOMY COMPANY, L.L.C., WIXTED, INC., d/b/a WIXTED POPE NORA THOMPSON, WIXTED POPE NORA THOMPSON & ASSOCIATES, L.L.C., EILEEN WIXTED, GARDINER THOMSEN, P.C., DANIEL MARK GARDINER, MILAN KUCERAK, and FARMERS COOPERATIVE COMPANY, Defendants.
ORDER REGARDING DEFENDANTS' RENEWED MOTIONS TO
W. BENNETT, U.S. DISTRICT COURT JUDGE
case is before me on the defendants' renewed dispositive
motions filed in response to the Wollesens' August 9,
2016, Second Amended Verified Complaint (docket no. 64)
(SAC). The SAC was, in turn, filed after my July 19, 2016,
Order Regarding Defendants' Motions To Dismiss (docket
no. 61), in which I denied the then-pending motions to
dismiss (docket nos. 24, 27, and 29), granted the Wollesens
leave to file a second amended complaint repleading their
RICO claim, and set a deadline for the defendants either to
file answers or motions to dismiss as to the second amended
complaint. The renewed dispositive motions now before me are
the following: The Individual WCC Defendants' September
12, 2016, Motion To Dismiss (docket no. 67); the Wixted Pope
Defendants' September 12, 2016, Motion To Dismiss (docket
no. 68); the Defendant Cooperatives' September 12, 2016,
Motion To Abstain Pursuant To The Colorado River
Abstention Doctrine Or Alternatively Dismiss (docket no. 70);
and the Gardiner Thomsen Defendants' September 13, 2016,
Motion To Dismiss (docket no. 76). Responses and replies have
been duly filed. Notwithstanding various requests for oral
arguments on these motions, I find that oral arguments are
not necessary, in light of the briefing. Therefore, these
motions are submitted on the parties' written
again, the principal issue raised in these motions is whether
or not the Wollesens' only federal claims in their SAC,
now two RICO claims instead of one, state claims upon which
relief can be granted. If not, the Wollesens request the
opportunity to offer a further amendment. Again, the
remaining issues involve some independent challenges to
state-law claims, but the defendants' primary challenge
to the state-law claims is supplemental jurisdiction, if the
RICO claims are dismissed.
reviewed the Wollesens' repleading of their RICO claims
in Count VII (“CIVIL RICO, 18 U.S.C. § 1962(a),
1962(b), and 1962(c)”) and Count VIII (“RICO
CONSPIRACY, 18 U.S.C. § 1962(d)”) of their SAC.
Although the defendants are correct that more is not
necessarily better, and I have considerable doubt that the
Wollesens will be able to marshal sufficient evidence either
to survive summary judgment or to convince a jury on their
RICO claims, or to convince me that their RICO claims are
timely, I am satisfied that the Wollesens have now plausibly
pleaded their RICO claims with sufficient particularity to
survive Rule 12(b)(6) motions to dismiss. See Fed.
R. Civ. P. 12(b)(6) and 9(b); Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929
(2007); Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct.
1937, 173 L.Ed.2d 868 (2009); Richter v. Advance Auto
Parts, Inc., 686 F.3d 847, 850 (8th Cir. 2012); see
also Crest Constr. II, Inc. v. Doe, 660 F.3d 346, 353-58
(8th Cir. 2011) (pleading RICO claims). Consequently, the
parts of the pending motions to dismiss relating to the RICO
claims in the SAC are denied.
these circumstances, I must also consider the portions of the
pending motions relating to the Wollesens' state law
claims. The Wixted Defendants contend that, even if this
court has federal question subject matter jurisdiction,
because the Wollesens have stated viable RICO claims, it does
not have supplemental jurisdiction over the state-law claims,
because those claims do not derive from a common nucleus of
operative facts, within the meaning of 28 U.S.C. §
1367(a), and those claims predominate over the RICO claims,
within the meaning of 28 U.S.C. § 1367(c)(2). I
conclude, however, that the state and federal claims are
sufficiently related-or interrelated- factually as to satisfy
§ 1367(a) and to make an argument of
“predominance” of the state law claims under
§ 1367(c)(2) ring hollow. See Wong v. Minnesota
Dep't of Human Servs., 820 F.3d 922, 931-32 (8th
Cir. 2016) (explaining that, in the absence of one of the
exceptions in § 1367(c), the court properly exercises
supplemental jurisdiction under § 1367(a) over a
state-law claim “if it ‘derive[s] from a common
nucleus of operative fact' as a claim otherwise within
the court's jurisdiction” (quoting City of
Chicago v. Int'l Coll. of Surgeons, 522 U.S. 156,
165 (1997)). As to the Wixted Defendants' contentions
that the state-law claims are subject to dismissal pursuant
to Rule 12(b)(6), I conclude that, perhaps just barely, the
Wollesens have pleaded sufficient facts to make the claims
timely and to make plausible the Wixted Defendants'
knowledge of, involvement in, and/or aiding of the wrongdoing
alleged. See Richter, 686 F.3d at 850.
the Wixted Defendants and the Defendant Cooperatives assert
that the Wollesens' malicious prosecution claim cannot
proceed, because the state court action on which that claim
is based has not finally concluded, where appeals in
state court are still pending. I conclude that the better
course, under these circumstances, is to deny the motions to
dismiss this claim, but to stay adjudication of this claim
pending disposition of appeals in state court. This is so,
because a dismissal of the claim, if it is premature, is
likely to invite a later request to amend to add it back,
when and if the state court proceedings do finally
end favorably for the Wollesens.
the parts of the defendants' motions seeking dismissal of
the state-law claims are also denied.
Defendant Cooperatives also assert that I should abstain from
exercising jurisdiction over the state-law claims pursuant to
the Colorado River abstention doctrine. Their
contention that the prior state court action and this action
are “parallel, ” to the extent required, does not
withstand scrutiny, however. Because of the differences in
the claims, considering all of the claims at issue
in this case, and the sources of law, the required
evidentiary showings, the measure of damages, and the
treatment on appeal of the claims, I have
considerable doubt that there is a substantial
likelihood-or much likelihood at all-that the state
proceeding will fully dispose of the claims present
in this court. See Cottrell v. Duke, 737 F.3d 1238,
1245 (8th Cir. 2013). In these circumstances, I cannot use
Colorado River to refuse jurisdiction. Id.
Thus, the Defendant Cooperatives' request for a stay of
the state-law claims pursuant to the Colorado River
abstention doctrine is also denied.
the pending motions to dismiss (docket nos. 67, 68, 70, and
76) are denied. However, adjudication of the Wollesens'
claim of malicious prosecution is stayed pending
disposition of appeals in state court.
IS SO ORDERED.