Mojo Built v. City of Prairie Village

• Court: Court of Appeals for the Tenth Circuit
• Decided: February 1, 2022
• Docket: 21-3054
• Status: Unpublished

Opinion

Appellate Case: 21-3054 Document: 010110639605 Date Filed: 02/01/2022 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT February 1, 2022 _________________________________ Christopher M. Wolpert Clerk of Court MOJO BUILT, LLC,

Plaintiff - Appellant, No. 21-3054 v. (D.C. No. 2:20-CV-02407-HLT-GEB) (D. Kan.) CITY OF PRAIRIE VILLAGE, KANSAS,

Defendant - Appellee. _________________________________

ORDER AND JUDGMENT * _________________________________

Before HARTZ, BACHARACH, and ROSSMAN, Circuit Judges. _________________________________

Plaintiff Mojo Built, LLC, appeals from the dismissal under Federal Rule of Civil

Procedure 12(b)(6) of its equal protection claim against Defendant City of Prairie

Village, Kansas. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

I. Background

Mojo Built, LLC is a developer, builder, and property owner. In 2018, it

applied to rezone a parcel into two separate lots, and the City approved. As a result,

Mojo Built tore down the existing house on the original lot, built two single-family

homes on the new lots, and sold them at a profit. In 2020, Mojo Built made similar

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 21-3054 Document: 010110639605 Date Filed: 02/01/2022 Page: 2

applications for two other lots, materially identical to the lot rezoned two years

earlier. This time, however, Mojo Built was unsuccessful. The City Council, whose

membership had changed since 2018 as a result of municipal elections, denied Mojo

Built’s zoning applications despite unanimous approval by the City’s planning

commission.

Mojo Built sued the City and members of the City Council individually under

42 U.S.C. §§ 1983 and 1988. It asserted claims based on alleged violations of

procedural due process, substantive due process, and equal protection. When the

individual defendants moved for dismissal, Mojo Built effectively conceded the

motion and filed an amended complaint against only the City. The City then moved

to dismiss the amended complaint. After briefing, the district court granted the

motion in a written order and entered a separate judgment. The district court

dismissed the amended complaint without prejudice. This appeal followed.

II. Discussion

A. Appellate Jurisdiction

Before addressing the merits of Mojo Built’s appeal, we must first determine

whether the dismissal of its amended complaint without prejudice was a “final

decision” over which we have appellate jurisdiction. See 28 U.S.C. § 1291. 1 “A

dismissal of the complaint is ordinarily a non-final, nonappealable order (since

1 It is unclear to us why the district court’s dismissal was without prejudice. In any event, neither party questions the finality of the district court’s order, but appellate courts have an independent obligation to confirm that jurisdiction is proper. See, e.g., Amazon, Inc. v. Dirt Camp, Inc., 273 F.3d 1271, 1274 (10th Cir. 2001).

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amendment would generally be available), while a dismissal of the entire action is

ordinarily final.” Moya v. Schollenbarger, 465 F.3d 444, 449 (10th Cir. 2006)

(internal quotation marks omitted) (quoting Mobley v. McCormick, 40 F.3d 337, 339

(10th Cir. 1994)). We scrutinize complaint dismissals “to pinpoint those situations

wherein, in a practical sense, the district court by its order has dismissed a plaintiff’s

action as well.” Id. (internal quotation marks omitted) (quoting Petty v. Manpower,

Inc., 591 F.2d 615, 617 (10th Cir. 1979) (per curiam)). In doing so, we “look to the

substance and objective intent of the district court’s order, not just its terminology.”

Id. (citation omitted) (emphasis omitted).

Here, the district court effectively determined that legal deficiencies in the

amended complaint rendered the action incapable of being saved by further

amendment. As a practical matter, therefore, the order dismissing the amended

complaint without prejudice disposed of the entire action and rendered the decision

final for purposes of § 1291. Thus, we have jurisdiction and proceed to the merits.

B. Class-of-One Equal Protection Claim

“We review de novo the dismissal of a complaint for failure to state a claim.”

Kan. Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1214 (10th Cir. 2011) (citation

omitted). Mojo Built’s appeal challenges only the district court’s dismissal of its

equal protection claim against the City. The Equal Protection Clause says, “No State

shall . . . deny to any person within its jurisdiction the equal protection of the laws.”

U.S. Const. amend. XIV, § 1. “Equal protection jurisprudence has traditionally been

concerned with governmental action that disproportionally burdens certain classes of

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citizens.” Kan. Penn Gaming, 656 F.3d at 1215-16. But it is well-settled the Equal

Protection Clause “protect[s] persons, not groups.” Adarand Constructors, Inc. v.

Pena, 515 U.S. 200, 227 (1995) (emphasis omitted).

Mojo Built does not allege membership in a particular class. Rather, its equal

protection claim proceeds on a “class-of-one” theory, which the Supreme Court

recognized in Village of Willowbrook v. Olech, 528 U.S. 562 (2000) (per curiam).

In Olech, a property owner wanted the Village of Willowbrook to connect her

home to the public water system. Id. at 563. The Village agreed as long as she

granted the municipality a 33-foot easement, even though it required only a 15-foot

easement from every other property owner seeking access to the municipal water

supply. Id. The Supreme Court held the plaintiff had stated a valid claim under the

Equal Protection Clause because the municipality’s demand for a longer easement

was alleged to be “irrational and wholly arbitrary.” Id. at 565.

To prevail on a class-of-one theory, “a plaintiff must allege and prove (1) ‘that

[it] has been intentionally treated differently from others similarly situated’ and

(2) ‘that there is no rational basis for the difference in treatment.’” Planned

Parenthood Ass’n of Utah v. Herbert, 828 F.3d 1245, 1253 (10th Cir. 2016)

(alteration in original) (quoting Olech, 528 U.S. at 564). “In the paradigmatic

class-of-one case, a public official inflicts a cost or burden on one person without

imposing it on those who are similarly situated in material respects, and does so

without any conceivable basis other than a wholly illegitimate motive.” Jicarilla

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Apache Nation v. Rio Arriba Cnty., 440 F.3d 1202, 1209 (10th Cir. 2006) (citation

omitted).

Mojo Built concedes it can point to no other similarly situated persons or

entities whom the City is alleged to have intentionally treated differently. This

deficiency, without more, would seem to doom its equal protection claim. See id. But

Mojo Built asserts there was, in fact, a similarly situated entity—a prior version of

itself. Mojo Built maintains the 2018 version of Mojo Built, whose rezoning

application was approved by the City, was treated differently from the 2020 version

of Mojo Built, whose materially identical applications were rejected. Even if Mojo

Built could satisfy the similarly situated comparator element at the motion to dismiss

stage under this theory, its class-of-one equal protection claim fails for a different

reason. 2 See Elkins v. Comfort, 392 F.3d 1159, 1162 (10th Cir. 2004) (We may

“affirm [the district court] on any ground adequately supported by the record.”)

(citation omitted).

Class-of-one claims require the plaintiff to show the challenged government

decision was “irrational and wholly arbitrary.” Olech, 528 U.S. at 565. The

class-of-one theory of equal protection “presupposes that like individuals should be

treated alike, and that to treat them differently is to classify them in a way that must

survive at least rationality review[.]” Engquist v. Or. Dep’t of Agric., 553 U.S. 591,

2 We therefore need not decide whether a plaintiff can make out a class-of-one equal protection claim by using an earlier version of itself as the similarly situated comparator. The only court to have discussed this argument was profoundly skeptical. See Carruth v. Bentley, 942 F.3d 1047, 1058-59 (11th Cir. 2019).

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605 (2008). Although Mojo Built alleges in its first amended complaint there was “no

rational basis” for the City’s actions and the City’s decision was “wholly unrelated to

any legitimate decision,” Aplt. App. at 26, 28, these allegations are mere legal

conclusions and lack plausible factual detail. See Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (setting forth the plausibility standard, which requires a plaintiff to “plead[]

factual content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged”); see also Bell Atl. Corp. v. Twombly,

550 U.S. 544, 555 (2007) (concluding mere “labels and conclusions” and “a

formulaic recitation of the elements of a cause of action” will not suffice to withstand

a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6)).

Not only are Mojo Built’s allegations conclusory, but its own characterization

of the City Council’s decision belies any inference that the decision was irrational,

arbitrary, or motivated by wholly illegitimate concerns. Mojo Built notes the

membership of the City Council changed after 2018 due to local elections, and in

2020 the City Council remanded one of Mojo Built’s applications to the planning

commission to reconsider the application in the context of “a broader[,] more holistic

approach to planning” that considers “public engagement” and “diversity in the

[housing] stock in Prairie Village.” Aplt. Op. Br. at 10. These were rational reasons

for the City Council’s differential treatment of Mojo Built’s applications between

2018 and 2020, and Mojo Built has not shown otherwise. Because Mojo Built has not

adequately alleged the City’s decision was irrational, arbitrary, or illegitimate, its

class-of-one claim fails.

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For the reasons stated above, we hold Mojo Built failed to plausibly plead a

class-of-one equal protection claim, and we affirm the district court’s dismissal of the

first amended complaint.

Entered for the Court

Veronica S. Rossman Circuit Judge