Kelly Smith v. CPNRD ( 2018 )

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 17-3640
___________________________
Kelly L. Smith; Karla G. Smith
lllllllllllllllllllllPlaintiffs - Appellants
v.
Central Platte Natural Resources District, also known as CPNRD; Dick Mercer,
the following individually and in their official capacity as Central Platte Natural
Resources Board members; Jay Richeson, the following individually and in their
official capacity as Central Platte Natural Resources Board members; Bryan
Ketson, the following individually and in their official capacity as Central Platte
Natural Resources Board members; Dwayne Margrits, the following individually
and in their official capacity as Central Platte Natural Resources Board members;
Bill Vasey, the following individually and in their official capacity as Central
Platte Natural Resources Board members; Marvion Reichert, the following
individually and in their official capacity as Central Platte Natural Resources
Board members; Steve Sheen, the following individually and in their official
capacity as Central Platte Natural Resources Board members; Keith Stafford, the
following individually and in their official capacity as Central Platte Natural
Resources Board members; Bob Schanou, the following individually and in their
official capacity as Central Platte Natural Resources Board members; Jim Shiers,
the following individually and in their official capacity as Central Platte Natural
Resources Board members; Jim Bendfeldt, the following individually and in their
official capacity as Central Platte Natural Resources Board members; Mick
Reynolds, the following individually and in their official capacity as Central Platte
Natural Resources Board members; Jerry Milner, the following individually and in
their official capacity as Central Platte Natural Resources Board members; Jerry
Wiese, the following individually and in their official capacity as Central Platte
Natural Resources Board members; Ed Stoltenberg, the following individually and
in their official capacity as Central Platte Natural Resources Board members;
Leroy Arends; Alicia Haussler, the following individually and in their official
capacity as Central Platte Natural Resources Board members; Ed Kyes, the
following individually and in their official capacity as Central Platte Natural
Resources Board members; Ladd Reeves, the following individually and in their
official capacity as Central Platte Natural Resources Board members; Charles
Maser, the following individually and in their official capacity as Central Platte
Natural Resources Board members; Barry Obermiller, the following individually
and in their official capacity as Central Platte Natural Resources Board members;
Lyndon Vogt, the following individually and in their official capacity as Central
Platte Natural Resources District Employees- General Manager; Jesse Mintken,
the following individually and in their official capacity as Central Platte Natural
Resources District Employees - GIS Coordinator; Luke Zakrzewski, the following
individually and in their official capacity as Central Platte Natural Resources
District Employees- GIS Image Analyst; Brian Keiser, individually and in his
official capacity as a Central Platte Natural Resources Board member
lllllllllllllllllllllDefendants - Appellees
____________
Appeal from United States District Court
for the District of Nebraska - Lincoln
____________
Submitted: August 23, 2018
Filed: August 27, 2018
[Unpublished]
____________
Before BENTON, SHEPHERD, and STRAS, Circuit Judges.
____________
PER CURIAM.
-2-
Kelly Smith and Karla Smith appeal after the district court1 dismissed their
claims against the Central Platte Natural Resources District, its board members, and
several of its employees. Having jurisdiction under 28 U.S.C. § 1291, this court
affirms.
The Smiths argue that the district court procedurally erred in considering a
successive Federal Rule of Civil Procedure 12(b) motion to dismiss, which they
contend violated Federal Rule of Civil Procedure 12(g)(2). Upon careful de novo
review, this court finds no basis for reversal. See Kuelbs v. Hill, 615 F.3d 1037, 1041
(8th Cir. 2010) (district court’s interpretation of Federal Rules of Civil Procedure is
reviewed de novo). As to the defenses and objections raised by defendants in their
successive Rule 12(b) motion, all had been asserted in an earlier motion to dismiss,
except for an abstention argument based on Burford v. Sun Oil Co., 319 U.S. 315
(1943), which the district court had authority to consider sua sponte. See Fed. R. Civ.
P. 12(g)(2) (generally prohibiting filing of successive Rule 12 motion “raising a
defense or objection that was available to the party but omitted from its earlier
motion”); Leyse v. Bank of Am. Nat’l Ass’n, 804 F.3d 316, 320 (3d Cir. 2015) (Rule
12(g)(2) “is intended to eliminate unnecessary delay at the pleading stage by
encouraging the presentation of an omnibus pre-answer motion in which the
defendant advances every available Rule 12 defense simultaneously rather than
interposing these defenses and objections in piecemeal fashion.”); cf. Int’l Coll. of
Surgeons v. City of Chi., 153 F.3d 356, 360-61 (7th Cir. 1998) (appellate court may
raise Burford doctrine sua sponte); Grimes v. Crown Life Ins. Co., 857 F.2d 699,
706-07 (10th Cir. 1988) (same; collecting cases).
The judgment is affirmed.
______________________________
1
The Honorable John M. Gerrard, United States District Judge for the District
of Nebraska.
-3-