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Franck v. Bannock County

United States District Court, D. Idaho

October 24, 2019

KEVIN FRANCK, Plaintiff,
BANNOCK COUNTY an independent body politic and corporate organized pursuant to Idaho law; STEVE BROWN, an individual; TERREL TOVEY, an individual; ERNIE MOSER, an individual; and SHERI DAVIES, an individual, Defendant.


          B. Lynn Winmill U.S. District Court Judge.


         Pending 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.


         Plaintiff, 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.

         On 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.


         1. Motion to Dismiss

         When 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 jurisdiction.

         In a 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).

         2. Contract Clause

         Section 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).

         The 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. 1996)).

         The 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 ...

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