Elise Beck Glickert v. The Loop Trolley Transportation Development District

In 2013, four individuals—Elsie Beck Glickert, Jen Rivenes Jensen, Irene

Franklin, and Peter Sarandos—filed a five-count complaint("the Complaint”) against

a number of defendants seeking declaratory and injunctive relief from the

The Honorable Timothy L. Brooks, United States District Judge for the

1

Western District of Arkansas, sitting by designation.

-2-

organization and operation of the Loop Trolley Transportation Development District

("the District”) in University City, Missouri. Count 1 alleged federal and state

constitutional claims, while Counts 2 to 5 raised state law challenges. The district

court granted the defendant-appellees' (hereinafter also referred to collectively asthe

2

"District”) motion to dismiss Count 1 as to Glickert, Jensen, and Franklin for lack of

standing; granted the District's motion for summary judgment on Count 1 as to

Sarandos because his claims were precluded by a state judgment; and declined to

exercise jurisdiction over the remaining state law claims. On appeal, Glickert,

Jensen, and Franklin argue the district court erred in finding they lack standing and

in failing to allow them to amend their complaint to include more particularized

allegations to establish their standing. Sarandos argues the district court erred in

applying claimpreclusion because he did not receive constitutionally adequate notice

of the state lawsuit, denying him due process of law. We affirm.

I. Background

TheMissouri Transportation Development District Act("TDDAct”),Mo.Rev.

Stat. §§ 238.200-.275, authorizesthe creation oftransportation development districts 3

to fund and execute transportation and infrastructure projects. Mo. Rev. Stat.

§§ 238.202, .205. A transportation development district is a political subdivision of

the state. Id. § 238.205. In 2007, the governing bodies of St. Louis City and

University City, both local transportation authorities within the meaning of the TDD

Act, passed resolutions calling for the joint establishment of the proposed District.

See id. § 238.202.1(4). Pursuant to the TDD Act's requirements, UniversityCity then

filed a petition in the Circuit Court of St. Louis County (the "Formation Lawsuit”)

The Honorable Stephen N. Limbaugh, Jr., United States DistrictJudge for the

2

Eastern District of Missouri.

Statutory citations refer to the 2008 edition of the Revised Statutes of Missouri 3

unless otherwise indicated.

-3-

seeking to create the proposed District to fund and build a trolley-car rail system. See

id. § 238.207.5. The petition proposed to fund the trolley-car project by imposing up

to a one percent sales tax on retail sales in the proposed District. See id. § 238.235.

Notice of the proposal was published in two newspapers, The St. Louis Daily Record

and The Countian, for four weeks, inviting persons who resided or owned property

within the proposed District to join the Formation Lawsuit. See id. § 238.212. No

one opposed the proposal or sought to join the suit. In December 2007, the circuit

court entered an order declaring the proposed District and sales tax were neither

illegal nor unconstitutional and certifying a single ballot question for voter approval

regarding creation of the proposed District, approval of the proposed trolley-car

project, and authorization of a one percent sales tax on retail sales within the

proposed District to fund the project. See id. § 238.215-.216. At the time, qualified

voters included registered voters who resided within the boundaries of the proposed

District and persons who owned real property within those boundaries. Id.

§ 238.202.2(2) (2007). Voters approved the ballot question and, in July 2008, the

4

circuit court entered a final judgment creating the District, approving the trolley-car

project, and authorizing the District to levy and collect a sales tax to fund the project

("the TDD Judgment”). See id. § 238.215. The sales tax was imposed in the District

in August 2008 and has been paid and collected since that time.

In 2013, Glickert, Jensen, Franklin, and Sarandosfiled a five-count Complaint

in federal district court, seeking a declaratory judgment stating the District was not

lawfully created and a permanent injunction barring the District from building and

operating the trolley-carsystem. Count 1 alleged that certain voting provisions of the

TDD Act violated the Equal Protection and Due Process Clauses of the United States

and Missouri Constitutions. Counts 2 to 5 raised state law challenges. The

Complaint noted that Glickert, Jensen, and Franklin do not reside in or own property

within the District, but are residents and taxpayers of University City and the City of

The definition of "qualified voters” in the TDD Act has since been amended. 4

-4-

St. Louis and regular business patrons, pedestrians, and motorists in the District. It

also stated that Sarandos is a resident of St. Charles County, Missouri, and owns real

property in the District.

The District filed a motion to dismiss and for summary judgment with respect

to all counts of the Complaint. The district court dismissed Count 1 as to Glickert,

Jensen, and Franklin for lack of subject matter jurisdiction, finding these three

plaintiffs lacked standing to bring their federal claims. The district court granted the

District's motion for summary judgment on Count 1 as to Sarandos on preclusion

grounds, finding that his failure to intervene and object in the Formation Lawsuit

precluded him from bringing his claims in Count 1. The district court declined to

exercise supplemental jurisdiction over the remaining state law claims and dismissed

Counts 2 to 5 as to all appellants, pursuant to 28 U.S.C. § 1367(c)(3).

Glickert, Jensen, Franklin, and Sarandos now appeal, arguing: (1) the district

court abused its discretion in dismissing Franklin, Glickert, and Jensen's claims

without giving them an opportunity to amend the Complaint to add more

particularized allegations to establish their standing; (2) the district court erred in

finding Glickert, Jensen, and Franklin lack standing because they live near and

regularly frequent the District; and (3) the district court erred in applying claim

preclusion against Sarandos because he did not receive adequate notice of the

Formation Lawsuit, in violation of due process.

II. Discussion

A. Motion to Amend

Glickert, Jensen, and Franklin argue the district court abused its discretion in

dismissing their claims in Count 1 without affording them an opportunity to amend

the Complaint to supply more particularized allegations to establish their standing.

-5-

"A decision whether to allow a party to amend her complaint is left to the sound

discretion of the district court and should be overruled only if there is an abuse of

discretion.” Popoalii v. Corr. Med. Servs., 512 F.3d 488, 497 (8th Cir. 2008).

Glickert, Jensen, and Franklin did not move to amend or file a proposed

amended pleading with the district court. Rather, in their memorandum of law in

opposition to the District's motion to dismiss, they included a brief section noting that

"[b]ecause the District combined its motion to dismiss with a motion for summary

judgment, filed very early in the course of this suit, it was not practical for Plaintiffs

to avail themselves of their right to amend their Complaint as a matter of course” and

requesting "permission to amend their Complaint should this Court find any

insufficiencies in its allegations.” R. Doc. 91, at 18. We have held that "to preserve

the right to amend a complaint a party must submit a proposed amendment along with

its motion.” Wolgin v. Simon, 722 F.2d 389, 395 (8th Cir. 1983); see also United

States v. Mask of Ka-Nefer-Nefer, 752 F.3d 737, 742 (8th Cir. 2014) (rejecting

government's argument that the district court departed from "typical practice” when

it dismissed government's complaint without inviting amendment because Eighth

Circuit law requires plaintiffs to submit a motion and proposed amendment to

preserve their right to amend and does not require the district court to invite a motion

for leave to amend if plaintiffs did not file one). Appellants did not submit a motion

to amend or a proposed amendment, nor did they indicate what a proposed amended

pleading might have contained. Accordingly, the district court did not abuse its

discretion by failing to grant Glickert, Jensen, and Franklin leave to amend their

Complaint. See, e.g., Clayton v. White Hall Sch. Dist., 778 F.2d 457, 460 (8th Cir.

1985) (holding district court did not abuse its discretion in failing to grant leave to

amend where appellant did not submit a motion or proposed amendment but merely

concluded her response to the appellee's motion to dismiss with a request for leave

to amend).

-6-

B. Standing

The district court dismissed Glickert, Jensen, and Franklin's claims in Count

1 because it found they lacked standing to bring their federal claims. "We review a

decision dismissing a complaint for lack of standing de novo, 'construing the

allegations of the complaint, and the reasonable inferences drawn therefrom, most

favorably to the plaintiff.'” Tarsney v. O'Keefe, 225 F.3d 929, 934 (8th Cir. 2000)

(quoting Burton v. Cent. Interstate Low-LevelRadioactive WasteCompactComm'n,

23 F.3d 208, 209 (8th Cir. 1994)).

"In essence the question of standing is whether the litigant is entitled to have

the court decide the merits of the dispute or of particular issues. This inquiry

involves both constitutional limitations on federal-court jurisdiction and prudential

limitations on its exercise.” Warth v. Seldin, 422 U.S. 490, 498 (1975). Glickert,

Jensen, and Franklin, as the parties asserting federal jurisdiction, have the burden of

establishing their standing. See DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342

(2006). To satisfy constitutional standing requirements, the plaintiff must make out

a "case or controversy” between himself and the defendant, which requires he allege

"'such a personal stake in the outcome of the controversy' as to warrant his

invocation of federal-court jurisdiction and to justify exercise of the court's remedial

powers on his behalf.” Warth, 422 U.S. at 498-99 (quoting Baker v. Carr, 369 U.S.

186, 204 (1962)). "From Article III's limitation of the judicial power to resolving

'Cases' and 'Controversies,' and the separation-of-powers principles underlying that

limitation, we have deduced a set of requirements that together make up the

'irreducible constitutional minimum of standing.'” Lexmark Int'l, Inc. v. Static

Control Components, Inc., 134 S. Ct. 1377, 1386 (2014) (quoting Lujan v. Defenders

of Wildlife, 504 U.S. 555, 560 (1992)). "The plaintiff must have suffered or be

imminently threatened with a concrete and particularized 'injury in fact' that is fairly

traceable to the challenged action of the defendant and likely to be redressed by a

-7-

favorable judicial decision.” Id. In addition to the minimum Article III "case or

controversy” requirement, the Supreme Court "has recognized other limits on the

class of persons who may invoke the courts' decisional and remedial powers,”

including the limitation that "the plaintiff generally must assert his own legal rights

and interests, and cannot rest his claim to relief on the legal rights or interests of third

parties.” Warth, 422 U.S. at 499.

Count 1 of appellants' Complaint is based upon the alleged unconstitutionality

of certain voting provisions of the TDD Act. Appellants allege that the TDD Act, on

its face or as applied in this election, is unconstitutional because it: (1) violates

voters' right to equal protection by creating discriminatory voting classifications;

(2) violates voters' right to equal protection and due process by failing to assure

ballot secrecy; and (3) violates voters' right to equal protection and due process by

unduly burdening voters' ability to exercise their right to vote in a variety of ways.5

Appellants allege that, as a consequence of the statute's unconstitutionality, the TDD

Judgment creating the District is void and thus the District has no authority to collect

taxes or undertake the trolley project. Appellants allege they are injured because the

District is collecting sales tax on purchases of goods and services in the District,

where they regularly shop, and undertaking the trolley project in an area they live

near and frequent. They asked the district court to declare that the District does not

exist and permanently enjoin the District from pursuing the trolley project.

We conclude Glickert, Jensen, and Franklin lack standing to assert equal

protection and due process claims in this case because these claims are not an

assertion of their own legal rights. "A federal court must ask 'whether the

constitutional or statutory provision on which the claim rests properly can be

The Complaint also alleged that the TDD Act's failure to assure ballotsecrecy

5

violates Article 8, Section 3 of the Missouri constitution, which addresses methods

of voting and secrecy of the ballot.

-8-

understood as granting persons in the plaintiff's position a right to judicial relief.'”

Roberts v. Wamser, 883 F.2d 617, 620 (8th Cir. 1989) (quoting Warth, 422 U.S. at

500). Glickert, Jensen, and Franklin are not entitled to vote in the District, as they do

not reside in or own property within the District, and they do not assert any personal

right under the Constitution or any statute that is violated by the District's imposition

of the sales tax and pursuit of the trolley project. Rather, the only legal basis for their

claim is that the TDD Act violates the constitutional rights of third parties, namely,

people who were entitled to vote in the TDD election. "In short the claim of these

petitioners falls squarely within the prudential standing rule that normally bars

litigants from asserting the rights or legal interests of others in order to obtain relief

from injury to themselves.” Warth, 422 U.S. at 509; cf. United States v. Hays, 515

U.S. 737, 743-44 (1995) (applying the rule against generalized grievances to note

that, in the equal protection context, the resulting injury from discriminatory conduct

"accords a basis for standing only to those persons who are personally denied equal

treatment by the challenged discriminatory conduct” (internal quotation marks

omitted)). While this prudential rule is subject to exceptions, appellants do not

present any argument that an exception should apply, nor do we find one applicable

to this case. See Warth, 422 U.S. at 509-10. Thus we affirm the district court's

dismissal of Glickert, Jensen, and Franklin's claims in Count 1 for lack of standing.



C. Notice

Sarandos is differently situated from the other appellants because he owned

property in the District during the TDD election and voted in the election. The

district court found it unnecessary to determine whether this fact established

Sarandos's standing to bring his claims in Count 1, instead granting the District's

motion for summary judgment by concluding Sarandos's claims were precluded by

the TDD Judgment. We review a district court's grant ofsummary judgment de novo.

Butler v. City of N. Little Rock, Ark., 980 F.2d 501, 503 (8th Cir. 1992). We will

affirm the grant of summary judgment "if the movant shows that there is no genuine

-9-

dispute as to any material fact and the movant is entitled to judgment as a matter of

law.” Fed. R. Civ. P. 56(a).

We afford the same full faith and credit to the TDD Judgment, a state court

judgment, that would apply in Missouri's own courts. See 28 U.S.C. § 1738; Kremer

v. Chem. Constr. Corp., 456 U.S. 461, 466 (1982). The district court concluded that

Sarandos could have intervened in the Formation Lawsuit to bring his claims and that

"Missouri law is clear that the judgment establishing a transportation development

district is final and given preclusive effect over those who could have intervened in

the Formation Litigation.” Glickert v. Loop Trolley Transp. Dev. Dist., No.

4:13cv2170 SNLJ, 2014 WL 1672005, at *6 (E.D. Mo. Apr. 28, 2014). Sarandos

does not challenge these findings on appeal. Rather he argues only that the preclusive

effect of the TDD Judgment could not be applied against him because he did not

receive adequate notice of the Formation Lawsuit, in violation of due process.

The TDD Act has a notice provision, requiring the circuit clerk in whose office

a petition is filed to publish notice in "one or more newspapers of general circulation

serving the counties or portions thereof contained in the proposed district to publish

once a week for four consecutive weeks.” Mo. Rev. Stat. § 238.212. The Complaint

alleged the Formation Lawsuit file did not contain evidence showing the statutory

notice requirement wassatisfied. In its motion to dismiss and for summary judgment,

the District argued res judicata barred appellants' claims, detailed how appellants

received notice and an opportunity to be heard in the Formation Lawsuit, and

submitted affidavits showing notice was published. In their memorandum in

opposition to the motion, appellants argued Glickert, Jensen, and Franklin could not

be precluded by the TDD Judgment because they did not have the right to join the

Formation Lawsuit, stating: "The City neglects to explain how these Plaintiffs

[Glickert, Jensen, and Franklin], even had they been given notice, would have been

entitled . . . to participate in the Formation Lawsuit.” R. Doc. 91, at 20. After the

word "notice,” appellants included the following footnote:

-10-

Plaintiffs acknowledge that, after the Formation Lawsuit was filed, the

court ordered that notice of the filing be published. Though the District

has presented a recent affidavit that this was done, the Formation

Lawsuit file does not reflect this. Though the Complaint does not raise

the issue, the constitutional adequacy of published notice to Plaintiff

Sarandos, the record owner of land within the proposed district, merits

consideration; Plaintiffs will seek to develop this issue if they are

allowed to amend their Complaint.

R. Doc. 91, at 20, n.43 (citations omitted). Sarandos now concedes publication notice

was given but claims it was constitutionally inadequate and thus argues the district

court could not apply the preclusive effect of the TDD Judgment against him. The

District argues Sarandos waived this argument by failing to raise it in the district

court. We agree.

Appellants alleged in the Complaint that the Formation Lawsuit file did not

prove statutorily required notice was provided. The Districtsubmitted evidence with

their motion for summary judgment showing the statute's notice requirement was

satisfied. Appellants did not contradict or rebut that evidence or argue that res

judicata could not apply because publication notice was inadequate. Accordingly,

while it is true that state court proceedings must meet minimum due process

requirements to qualify for the full faith and credit guaranteed by federal law, see

Kremer, 456 U.S. at 481, in this case, there was no genuine dispute before the district

court as to the constitutional adequacy of notice that precluded it from granting

summary judgment on res judicata grounds. See Fed. R. Civ. P. 56(a); see also

Abbott v. Michigan, 474 F.3d 324, 331-32 (6th Cir. 2007) (finding summary

judgment on preclusion grounds proper where plaintiffs claimed they did not have a

full and fair opportunity to litigate their claims, defendants moved for summary

judgment and presented evidence on this claim, and plaintiffs did not challenge or

come forth with evidence to show they did not have a full and fair opportunity to

litigate).

-11-

In his reply brief, Sarandos claims he did raise the issue of the "constitutional

adequacy of the published notice” before the district court, referring to the

aforementioned footnote in appellants' memorandum in opposition to summary

judgment, and thus he did raise a due process challenge. While we agree that this

footnote included the words "constitutional adequacy of published notice,” having

reviewed the record, we disagree that this footnote was sufficient to alert the district

court that Sarandos was asserting that res judicata could not bar his claims because

he did not receive constitutionally adequate notice of the Formation Lawsuit. At

most, the footnote may have signaled that Sarandos might raise a challenge to the

constitutionality of the TDD Act's notice provision in the future. Accordingly, this

claim was not pled in the district court, and we note that not only have we already

concluded the district court did not abuse its discretion by not granting appellants

leave to amend the Complaint, but appellants do not even argue on appeal that the

district court erred in failing to allow them to amend to develop Sarandos's due

process argument. We conclude, therefore, that the due process argument Sarandos

makes on appeal was not raised before the district court, and thus we will not address

it. See Larken, Inc. v. Wray, 189 F.3d 729, 735 (8th Cir. 1999) (declining to address

argumentsthat were not made below "with sufficient particularity to preserve them”).

As Sarandos does not otherwise challenge the district court's application of

preclusion, we affirm the court's grant of summary judgment on Count 1 of the

Complaint as to Sarandos.6

As we conclude the TDD Judgment precludes Sarandos's claims, we do not

6

need to address his secondary argument, namely, that he could not have brought his

constitutional challenges in an election contest.

For these reasons, we affirm the district court’s dismissal of Count 1 of the

Complaint asto Glickert, Jensen, and Franklin and its grant ofsummary judgment on

Count 1 as to Sarandos.