United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
Lynn Winmill U.S. District Court Judge.
before the Court is Defendants' Motion to Dismiss (Dkt.
5). The motion is fully briefed and at issue. The Court will
grant the motion for the reasons discussed below.
Kevin Franck, is a Certified Property Tax Appraiser who
performs appraisals of property in Idaho. Compl.
¶ 1. Bannock County is an Idaho County, empowered to act
through a board of county commissioners who are Steve Brown,
Terrel N. Tovey, and Ernie Moser. Compl. ¶ 2-5,
16. On October 4, 2018, Franck and the County through Brown,
Tovey, and Moser's predecessor, Ken Bullock, executed a
Commercial Appraiser-Independent Contractor Agreement.
Compl. ¶ 16. This Agreement established that
Franck would complete twenty percent of the assessments for
parcels due each year in the County, with a maximum of 1, 100
parcels per year and a minimum of 250 parcels per quarter.
Compl. ¶ 15. The County would determine which
parcels Frank would assess and Frank would then complete the
assessment. Compl. ¶ 19.
November 6, 2018, Sheri Davies was elected Bannock County
Assessor and was sworn in on January 14, 2019.
Compl. ¶ 22. The next day, Davies requested
that Franck return all County files used to complete his
appraisals. Compl. ¶ 27. Franck did not return
the files at that time. See Compl. ¶ 29. The
Commissioners Brown, Tovey, and Moser sent Franck a letter on
January 24, 2019, which stated that the Agreement between the
County and Franck was terminated and issued a demand for
Franck to return all County property. Compl. ¶
28. Franck then returned the files to the County and thus
could not complete any further appraisals under the
Agreement. Compl. ¶ 29. On March 6, 2019,
Franck filed a Notice of Tort Claim with the clerk of the
County and the County did not respond, which is deemed a
denial. Compl. ¶ 30-31. This complaint
followed. Counts One and Two allege a deprivation of rights
under 42 USC § 1983 against Bannock County, Brown,
Tovey, and Moser respectively. Compl. ¶ 32-44.
Count Three alleges breach of contract against Bannock County
and Count Four alleges tortious interference with a contract
against Davies. Compl. ¶ 45-58. The Defendants
filed a motion to dismiss the complaint for want of subject
matter jurisdiction under Federal Rule of Civil Procedure
12(b)(1). Def.'s Mot. Dismiss, Dkt. 5.
Motion to Dismiss
subject matter jurisdiction is challenged pursuant to Rule
12(b)(1), the plaintiff bears the burden of persuasion.
Indus. Tectonics, Inc. v. Aero Alloy, 912 F.2d 1090,
1092 (9th Cir. 1990) (citations omitted). A Rule 12(b)(1)
jurisdictional attack may be facial or factual. Safe Air
for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir.
2004) (citation omitted). “In a facial attack, the
challenger asserts that the allegations contained in a
complaint are insufficient on their face to invoke federal
jurisdiction. By contrast, in a factual attack, the
challenger disputes the truth of the allegations that, by
themselves, would otherwise invoke federal
jurisdiction.” Id. Here, the jurisdictional
attack is facial because it asserts that the allegations
contained in the complaint are insufficient to invoke federal
facial attack, the Court accepts as true all factual
allegations in the complaint. Whisnant v. United
States, 400 F.3d 1177, 1179 (9th Cir. 2005). Still,
though, to survive a Rule 12(b)(1) motion, plaintiff must
allege a plausible set of facts that establish subject-matter
jurisdiction. Terenkian v. Republic of Iraq, 694
F.3d 1122, 1131 (9th Cir. 2012) (Twombly/Iqbal
applies to facial attacks on subject matter jurisdiction).
1983 allows an individual to seek redress for a deprivation
of their constitutional rights under color state law. 42
U.S.C. § 1983; Connick v. Thompson, 563 U.S.
51, 60 (2011).
deprivation of rights alleged here involves the right to
contract under the Contracts Clause of the Constitution. U.S.
Const. art. I, § 10, cl. 1. The Contracts Clause states
in relevant part that, “[n]o State shall… pass
any… Law impairing the Obligation of Contracts.”
Id. Determining whether a contract has been impaired
involves analyzing three components: (1) “whether there
is a contractual relationship, ” (2) “whether a
change in law impairs that contractual relationship, ”
and (3) “whether the impairment is substantial.”
University of Hawai'i Professional Assembly v.
Cayetano, 183 F.3d 1096, 1101 (9th Cir. 1999) (quoting
Seltzer v. Cochrane, 104 F.3d 234, 236 (9th Cir.
first and third components are not in dispute here. The
second component of the substantial impairment test, whether
a change in law impairs the contractual relationship,
“turns on whether the State has used its law-making
powers not merely to breach its contractual obligations, but
to create a defense to the breach that prevents the recovery
of damages.” Cayetano, 183 F.3d at 1102. In
other words, “the question should be whether the
modification that the legislation imposes simply breaches the
contract like any other unilateral attempt to modify an
agreement, or whether the statute prevents or materially
limits the contractor's ability to enforce his