Status Report

Congratulations to and a special thanks to Allen Garner for working on the following matter and providing a status report on Kimble et al v. Jefferson City, et al:


“Kimble et al v. Jefferson City, et al.

Status Report

January 14, 2014”

“On January 13, 2014 U.S. District Judge Nanette K. Laughrey entered an order granting all Defendants’ Motion for Judgment on the Pleadings.  This order effectively ends the trial court phase of the case unless a successful appeal by Plaintiffs results in a remand to the trial court.  It is anticipated that an order dismissing the case will be entered today or tomorrow which will commence the thirty (30) day period for the Plaintiffs to file an appeal if they so desire.

In the order which was entered Judge Laughrey addressed the three theories of recovery in the Plaintiffs’ petition that the Defendants (1) violated the equal protection clause of the United States and Missouri constitutions; (2) were unjustly enriched by collection of money through AT&T on internet access charges; and (3) violated the civil rights of Plaintiffs (42 U.S.C. §1983) by requiring payment of surcharges for business license taxes.  Judge Laughrey found that while municipalities are state actors, a requirement for both equal protection and civil rights claims, nothing in the pleadings would provide evidence that “a reasonable juror could conclude that the Defendants’ actions “caused” AT&T to charge its customers a surcharge …” Judge Laughrey rejected an assertion that the failure of the Defendants to prohibit the use of a surcharge could be treated as state action.  The Court attributed the injury to actions of AT&T related to coding error(s) and declared “Defendants did nothing to case that error.” The Court concluded that the Plaintiffs failed to show any state actor caused their injury and granted the Motions for Judgment on Counts I (Equal Protection) and III (42 U.S.C. §1983).

The Plaintiffs’ claim that the Defendants were unjustly enriched by receiving tax payments on internet access charges which were prohibited by federal law was rejected by Judge Laughrey.  The Court analyzed the nature of the money collected, whether it was a tax or something else.  The Court concluded it did not matter in terms of recovery because if it was a tax, the Plaintiffs lack standing to challenge the payment because they were not the taxpayer (AT&T), and if it was not a tax the unjust enrichment claims fails because it was premised on the illegal collection of a tax on internet access.  Based on her analysis Judge Laughrey granted the Defendants Motion for Judgment on the Pleadings as to Count III (Unjust Enrichment).

Concluding Notes

The success by the defense group in obtaining the favorable ruling from the Court prior to the commencement of discovery was significant in terms of cost avoidance and the expenditure of time by numerous city officials in responding to Requests for Production, Interrogatories and the taking of Depositions.  On the day the Court issued the order granting Judgment on the Pleadings the defense team participated in a conference call to organize discovery actions.  Those actions will not now be necessary.”

“The defense team in this case worked closely together to produce a generally unified response preventing a divide and conquer approach by Plaintiffs.  By utilizing the knowledge and expertise of the various attorneys and drawing on the work previously done by several of them in related litigation, defense costs were minimized as much as possible.  Debts of gratitude are owed to the following attorneys and firms for their assistance and cooperation in the defense of this case:

Chris Rackers and Brad Letterman with Schreimann, Rackers, Francka, and Blunt, LLC. retained by MIRMA and the Missouri Municipal League (MML).

Michael Berry and Marshall Wilson with Berry Wilson, L.L.C. retained through MOPERM.

Carl Lumley and Bob Jones with Curtis, Heinz, Garrett, & O’Keefe retained by St. Louis Municipal League and some cities directly.

David McCourt, Russell Watters, Bob Carter, and Tim Wolf of Brown & James retained through insurance with Meadowbrook/Savers.

Nancy Yendes and Marianne Banks employed in the legal department of the City of Springfield.

Patti Hageman, Nancy Kistler and Raymond Flojo employed in the legal department of the City of St. Louis.

Cindy Hoemann, Michael Hughes and Robert Grant employed in the legal department of St. Louis County with assistance from Jim White.

Stephen Walsh, John Mulligan, Angela Drake, Drew Hilpert, Howard Paperner, and Lisa Robertson also contributed to the defense.”


Respectfully Submitted,


B. Allen Garner

Allen Garner Law, LLC

Of Counsel with Kapke & Willerth L.L.C.

3808 S. Coachman Court

Independence, MO 64055

TOLL FREE: 888.487.4440

DIRECT:  816.478.3848

CELL: 816.522.4639

Fax: 816.326-0898”


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