Mojo Built v. City of Prairie Village ( 2022 )

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This order and judgment is not binding precedent, except under the doctrines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
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