Kriedel v. Town of Newington

          ORDER ON MOTION TO DISMISS

          STEFAN R. UNDERHILL UNITED STATES DISTRICT JUDGE.

         Matthew Kriedel filed a complaint pro se, seeking to recover for the alleged taking of personal property. Complaint (“Compl.”), Doc. No. 1. He is now represented. The Town of Newington (“Newington”) filed a motion to dismiss. For the reasons set forth below, the motion (Doc. No. 11) is granted.

         I. Standard of Review

         “A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it.” Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). A party that moves to dismiss for lack of subject matter jurisdiction “may refer to evidence outside the pleadings.” Id. (quoting Kamen v. American Tel. & Tel. Co., 791 F.2d 1006, 1011 (2d Cir. 1986)). To survive a motion brought under Rule 12(b)(1), a plaintiff “has the burden of proving by a preponderance of the evidence that [subject matter jurisdiction] exists.” Id. (citing Malik v. Meissner, 82 F.3d 560, 562 (2d Cir. 1996)).

         II. Background

         During the relevant time period, Kriedel was a resident of Newington, Connecticut, and owned real property at 366 Maple Hill Avenue in Newington (“the property”). Compl., Doc. No. 1, at ¶¶ 2, 4. Kriedel and Newington were involved in litigation concerning alleged blight on the property. Id. at ¶ 4. Newington claimed that Kriedel's property violated the municipality's blight ordinance because there were abandoned vehicles and a collapsing barn on the property. Id. at ¶ 5. After administrative proceedings, Newington notified Kriedel that it would enter the property and remediate the blight in January 2016. Id. at ¶ 6. Kriedel filed an action, pro se, in Connecticut Superior Court seeking to enjoin Newington from performing the remediation. Id. at ¶ 7. The court denied Kriedel's claim for relief and ordered him to remove the blight by July 2016. Id. at ¶ 8. Kriedel appealed, but the appeal was dismissed on August 3, 2016. Id. at ¶ 9.

         On August 30, 2016, Newington provided notice of its intent to enter the property to remediate the blight. Id. at ¶ 10. On August 31, 2016, Newington entered Kriedel's property and “destroyed” his barn. Id. at ¶ 11. Town employees and agents also removed Kriedel's personal property from his garage, which Kriedel claims was never authorized. Id. at ¶¶ 11-12. Kriedel alleges those items have been destroyed. Id. at ¶ 13. Kriedel has demanded in writing that the personal property be returned or that he be justly compensated for the value of the property. Id. at ¶ 14. Newington has not complied. Id. at ¶ 16.

         Kriedel filed his complaint on August 31, 2018. Compl., Doc. No. 1. Newington filed a motion to dismiss on December 14, 2018. Doc. No. 11. Kriedel obtained counsel, who objected on January 31, 2019. Doc. No. 19. Newington replied on February 11, 2019. Doc. No. 20.

         III. Discussion

         Kriedel seeks to recover for the taken personal property under three legal theories: (1) violation of his right to due process; (2) taking the personal property without providing just compensation; and (3) negligence. Compl., Doc. No. 1, at ¶¶ 1, 17. Newington argues that I lack subject matter jurisdiction over each theory. Memorandum in Support of Defendant's Motion to Dismiss (“Def's Memo”), Doc. No. 11-1, at 3-4.

         A. Taking Without Just Compensation

         Newington argues that Kriedel's takings claim “is not yet ripe for adjudication, thereby deriving this Court of subject matter jurisdiction.” Def's Memo, Doc. No. 11-1, at 4. Kriedel argues that “Plaintiff's constitutional claims are ripe for adjudication.” Plaintiff's Objection to Defendant's Motion to Dismiss and Memorandum in Support (“Pl's Memo”), Doc. No. 19, at 1.

         “A plaintiff must show that [he] sought redress through the appropriate administrative avenues before suing in the district court. Id. at 187 (internal citation omitted). In other words, “a property owner has not suffered a violation of the Just Compensation Clause until the owner has unsuccessfully attempted to obtain just compensation through the procedures provided by the State for obtaining such compensation[.]” Norton v. Galligan, 2018 WL 564568, at *5 (D. Conn. Jan. 25, 2018) (citing Williamson, 473 U.S. at 195).

         Article First, § 11 of the Connecticut Constitution, which states that “[t]he property of no person shall be taken for public use, without just compensation, ” provides an adequate procedure for a plaintiff alleging a takings claim to obtain just compensation for a taking. Wellswood Columbia, LLC v. Town of Hebron, 2013 WL 356619, at *3 (D. Conn. Jan. 29, 2013), onreconsideration in part, 2013 WL 5435532 (D. Conn. Sept. 30, 2013).^[1] Furthermore, “[f]ederal district courts routinely dismiss-and the Supreme Court and Second Circuit routinely uphold dismissal of-Fifth Amendment claims where a ...