United States District Court, C.D. Illinois, Peoria Division
ORDER AND OPINION
Michael M. Mihm, United States District Judge.
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.
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.
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
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
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.
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 ¶
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.
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).
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 ...