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Price v. Carri Scharf Trucking, Inc.

United States District Court, C.D. Illinois, Peoria Division

October 1, 2019

WILLIAM BROKAW PRICE, Plaintiff,
v.
CARRI SCHARF TRUCKING, INC., an Illinois Corporation, and JOSEPH A. SCHARF, Defendants.

          ORDER AND OPINION

          Michael M. Mihm, United States District Judge.

         This matter is now before the Court on a Motion to Dismiss Plaintiff’s Amended Complaint (ECF No. 19) filed by Defendants Carri Scharf Trucking, Inc. (“CST”) and Joseph A. Scharf (“Scharf”) (referred to collectively as “Defendants”). For the reasons stated below, Defendants’ Motion to Dismiss Plaintiff’s Amended Complaint is DENIED.

         This Court has jurisdiction pursuant to 28 U.S.C. § 1332(a)(1) as diversity of citizenship exists between Plaintiff and Defendants. Plaintiff is alleged to be a citizen of the State of Washington. (ECF No. 18 at ¶ 1). CST is an Illinois corporation with its principal place of business in Bloomington, McLean County, Illinois. Id. at ¶ 2, 3. Scharf is alleged to be a citizen of the State of Illinois. Id. at ¶ 5. Additionally, the amount in controversy is alleged to exceed $75, 000.00. Id. at ¶ 8.

         PROCEDURAL HISTORY

         Plaintiff William Brokaw Price, (“Plaintiff”) filed a Complaint on May 13, 2019. (ECF No. 1). Defendants filed a Motion to Dismiss Plaintiff’s Complaint under Federal Rules of Civil Procedure (“Rule”) 12(b)(1), 12(b)(6), 12(b)(7), and 19 on June 11, 2019, along with an Answer to the Complaint. (ECF No. 6, 11). The Court heard oral arguments on the matter on August 20, 2019. After oral arguments, the Court denied Defendants’ Motion to Dismiss and ordered Plaintiff to amend their Complaint. (Text Order 8/20/19). Specifically, the Court requested that Plaintiff include

the date when Theodosia became Trustee, when the Trusts came into possession of the “Farm Tract” and “Mining Tract, ” when Plaintiff became owner of the "Farm Tract" and assignee of all claims or causes of action, as well as allege in good faith that Defendant Scharf actively participated, and include any portions of land that are referenced in the Complaint which may remain in the Trusts.

Id. On August 27, 2019, Plaintiff filed an Amended Complaint. (ECF No. 18). On September 10, 2019, Defendants filed a Motion to Dismiss Plaintiff’s Amended Complaint under Rule 12(b)(6) or 12(e). (ECF No. 19). This Opinion follows.

         BACKGROUND

         The alleged facts contained in the Amended Complaint stem from a Contract for the Sale of Sand, Gravel, and Topsoil (“Contract”) that Plaintiff’s parents and CST entered into on or about January 7, 1997. (ECF No. 18 at ¶ 15). The Contract gave CST certain rights to mine and remove materials on what has been described as the “East Portion of the Farm Tract” or the “Mining Tract”. Id. at ¶¶ 16, 23. The Contract attached to the Amended Complaint did not contain a map of the land at issue; however, the Court notes a map was referenced in the Contract. (ECF No. 18-1 at 1). Plaintiff’s parents jointly owned certain real property, inclusive of both “East” and “West Portions of the Farm Tract.” Id. at ¶ 12. Legal descriptions of both the “East” and “West Portions of the Farm Tract” are contained in the Amended Complaint. Id. at 17, 18.

         On July 11, 2003, Plaintiff’s parents conveyed by warranty deed an undivided one-half interest of the “East Portion of the Farm Tract” to Plaintiff’s father as Trustee of the William Brokaw Price Trust, and an undivided one-half interest of the “East Portion of the Farm Tract” to Plaintiff’s mother as Trustee of the Barbara Scott Price Trust (referred to collectively as “Trusts”). Id. at ¶ 17. The same was done for the “West Portion of the Farm Tract.” Id. at ¶18. The land conveyed to the Trusts included the “Mining Tract.” Id. at ¶ 19. Plaintiff’s father passed away on August 26, 2010, and his mother passed away on September 8, 2017. Id. at ¶¶ 20, 21. On May 31, 2018, in her capacity of Trustee of the Trusts, Plaintiff’s sister conveyed the “West Portion of the Farm Tract” to Plaintiff. Id. at ¶ 22. The “East Portion of the Farm Tract” or the “Mining Tract” remains the property of the Trusts. Id. at ¶ 24. Scharf is the current President, and past Secretary, of CST. Id. at ¶ 6.

         In Count I, Plaintiff alleges that Defendants trespassed on the “West Portion of the Farm Tract” while mining. Id. at ¶ 32. “As part of its continuing trespass upon the West Portion of the Farm Tract, CST has caused economic damage…by means that include the removal of topsoil, diversion of the flow of run-off water, construction of a large swale and installation of pipes and related drainage infrastructure.” Id. at ¶ 33. Plaintiff contends the trespass CST undertook on the “West Portion of the Farm Tract” was at the direction and control of Scharf and that he actively participated in the tort. Id. at ¶¶ 36, 37. In Count II, Plaintiff alleges Defendants entered upon the “West Portion of the Farm Tract” and converted for its own use topsoil and materials. Id. at ¶ 39. Plaintiff also states that this alleged conversion was conducted at the direction and control of Scharf and that he actively participated in the tort. Id. at ¶¶ 42, 43.

         STANDARD OF REVIEW

         Dismissal under Rule 12(b)(6) is proper if a complaint fails to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). To survive a motion to dismiss, a complaint must contain sufficient factual matter, which when accepted as true, states a claim for relief that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Plausibility means alleging factual content that allows a court to reasonably infer that the defendant is liable for the alleged misconduct. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 547 (2007). A plaintiff’s claim must “give enough details about the subject matter of the case to present a story that holds together” to be plausible. Swanson v. Citibank, N.A., 614 F.3d 400, 404 (7th Cir. 2010). A court must draw all inferences in favor of the non-moving party. Bontkowski v. First Nat’l Bank of Cicero, 998 F.2d 459, 461 (7th Cir. 1993).

         When evaluating a motion to dismiss, courts must accept as true all factual allegations in the complaint. Ashcroft, 556 U.S. at 678. However, the court need not accept as true the complaint’s legal conclusions; “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. (citing Bell Atlantic ...


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