reVamped LLC v. Pipestone, City of

U.S. District Court, District of Minnesota December 18, 2024

Trial Court Opinion

            UNITED STATES DISTRICT COURT                             
                DISTRICT OF MINNESOTA                                


reVamped  LLC,   Heliocentrix  LLC,    File No. 22-CV-02881 (JMB/TNL)     
Minnesota  limited  liability  companies;                                 
Tammy Grubbs; and Vanda Smrkovski;                                        

     Plaintiffs,

ORDER

City of Pipestone, a Minnesota municipality;
and Doug Fortune, in his individual and
official capacities;

Defendants.

Gregory M. Erickson and Benjamin Paul Lanari, Mohrman, Kaardal & Erickson, P.A.,
Minneapolis, MN, for Plaintiffs reVamped LLC, Heliocentrix LLC, Tammy Grubbs, and
Vanda Smrkovski.
Paul D. Reuvers, Jason J. Kuboushek, and Andrew A. Wolf, Iverson Reuvers, LLC,
Bloomington, MN, for Defendants City of Pipestone and Doug Fortune.

This matter is before the Court on Plaintiffs reVamped LLC’s, Heliocentrix LLC’s
Tammy Grubbs’s and Vanda Smrkovski’s (together, Plaintiffs) and Defendants City of
Pipestone’s (City) and Doug Fortune’s (together, Defendants) cross-motions for summary
judgment. (Doc. Nos. 46, 65.) In this action, Plaintiffs allege that Defendants violated
their procedural due process rights and committed an unconstitutional regulatory taking in
violation of the Fifth Amendment by identifying Plaintiffs’ hotel as a hazardous building
and ordering it to be closed from March 10, 2020, through April 30, 2020. For the reasons
explained below, the Court denies Plaintiffs’ motion and grants Defendants’ motion.
STATEMENT OF UNDISPUTED FACTS
A. Regulation of Unsafe and Hazardous Buildings in Pipestone, Minnesota
The City Code of Pipestone, Minnesota (City Code)1 includes provisions for the

closure and vacation of unsafe buildings, consequences for failure to remedy code
violations, and for emergency closure of hazardous buildings. Pipestone City Code
[hereinafter, “City Code”] § 151.08(A) (“When a structure or equipment is found by the
code official to be unsafe, or when a structure is found unfit for human occupancy, or is
found unlawful, such structure shall be condemned pursuant to the provisions of this

code.”); id. § 151.09(A) (“When, in the opinion of the code official, there is imminent
danger of failure or collapse of a building or structure which endangers life . . . , then the
code official may order and require the occupants to vacate the premises forthwith.”).
Together, these provisions mirror state-law requirements related to the regulation, closure,
vacation, and abatement of unsafe buildings. See

Minn. Stat. §§ 463

.15–.26 (relating to

regulation of hazardous buildings and acquisition of property through exercise of eminent
domain); Minn. Admin. R. 1300.0180 (providing authority for ordering a building to be
vacated “in case of an emergency” if “continued use is dangerous to life, health, or safety
of the occupants”).2

1 The City Code provides that “[t]he City Council shall appoint an individual to serve as
code official.” City Code § 151.03(A). The parties agree Fortune is a “code official.”
2 The City Code and the state rules do not use the same words to refer to an emergency
closure of a building. Compare City Code § 151.08(A) (“condemn”), with Minn. Admin.
R. 1300.0180 (“vacate”).
A property owner may appeal an order of the code official to the City Council and
may thereafter seek judicial review. City Code § 151.11(A), (E). In addition, under state

rules, if a municipality has no means of appeal, or if no municipal appeals committee hears
a “properly completed application for appeal” within ten days, the property owner may
appeal to the State Building Code Appeals Board and thereafter seek judicial review.
Minn. Admin. R. 1300.0230, subpt. 1.3
B. Relevant History of the Calumet Inn
The Calumet Inn (Calumet) opened in Pipestone, Minnesota, in 1888 and was added

to the National Register of Historic Places in the 1970s. (Doc. No. 50-1 at 3.) In 2012,
Heliocentrix purchased the Calumet. (Doc. No. 50-5 at 2; Doc. No. 50-12 at 1; Doc. No.
50-24 at 23:2–5, 23:11–18, 29:2–7.) Vanda Smrkovski is the sole owner of Heliocentrix.
(Doc. No. 50-24 at 21:16–19.) Smrkovski operated the Calumet for about three years4
(Doc. No. 50-12; Doc. No. 50-24 at 29:2–4), until Texas-based Pipestone Lodging, LLC

took over. (Doc. No. 50-14.) Heliocentrix and Pipestone Lodging eventually entered into
a three-year contract for deed. (Doc. No. 50-24 at 10:1–7, 29:23–30:10; Doc. No. 50-14;
Doc. No. 50-15.) However, the Calumet sank into physical disrepair under Pipestone

3 The State Appeals Board advises the public that, “[i]f you disagree with a municipality’s
decision about application of the State Building Code . . . , you can appeal that decision,”
and advises that it “hears appeals of building code orders, decisions or determinations
where the affected code jurisdiction does not have an appeals board.” State Appeals Board,
Minn. Dep’t of Labor & Indus., https://www.dli.mn.gov/about-department/boards-and-
councils/state-appeals-board (last visited Dec. 4, 2024) [https://perma.cc/ZX62-NHB8 ].
4 Smrkovski operated the hotel through another entity, Agora, LLC, which is not a party to
this lawsuit. (Doc. No. 50-24 at 21:20–22:1.)
Lodging’s management. City of Pipestone Building Inspector Doug Fortune’s periodic
inspections resulted in code violation notices that went unremedied, which brought the

Calumet to the brink of closure more than once. (See, e.g., Doc. No. 50-16; Doc. No. 50-
17; Doc. No. 50-18; Doc. No. 50-19; Doc. No. 50-21; Doc. No. 50-22; Doc. No. 50-24 at
85:9–11.) By January 2018, Fortune informed the City’s Heritage Preservation
Commission that the Calumet was “on his blighted list.” (Id.)
In mid-2018, Pipestone Lodging defaulted under the contract with Heliocentrix,
which thereafter resumed operations and hired a contractor to address outstanding code

violations and avert shutdown. (Doc. No. 50-24 at 30:11–33:15; Doc. No. 50-21 at 2–3.)
Around this time, Tammy Grubbs—the hotel’s then-general manager and a friend of
Smrkovski—expressed her desire to purchase the Calumet from Heliocentrix. In August
2018, Heliocentrix entered into a contract for deed with reVamped, an entity created and
solely owned by Grubbs. (Doc. No. 50-24 at 37:25–38:11; Doc. No. 50-28; Doc. No. 50-

29.) The five-year contract for deed contemplated the sale of the Calumet from
Heliocentrix to reVamped. (Doc. No. 50-24 at 41:7–15; Doc. No. 50-28 at 1, 2; Doc. No.
50-29 at 1.) While under contract, Grubbs operated the Calumet but Heliocentrix remained
its legal owner. (Doc. Nos. 50-28, 50-29.)
C. The 2019 Fire Order

On November 13, 2019, Deputy State Fire Marshal George Shellum conducted a
fire inspection at the Calumet. (Doc. No. 50-31.) Upon Shellum’s arrival at the Calumet,
he met Chris de Gruchy, Grubbs’s adult son who worked at the Calumet as the kitchen
manager. (Doc. No. 50-32 at 31:10–14; Doc. No. 50-35 at 8:18–25, 10:3–4; Doc. No. 50-
38 at 10:8–12.) Following the inspection, Shellum issued an Inspection and Compliance
Order (2019 Fire Order) to the Calumet. (Doc. No. 50-31; Doc. No. 50-42 at 2.) It listed

nine fire code violations, provided guidance for how to remedy each violation, noted the
time by which repairs were to be completed, and requested “valid documentation of
compliance.” (Id. at 2.) The following day, Shellum put the building “on Fire Watch” due
to a malfunction in the Calumet’s fire alarm system. (Doc. No. 50-33.) De Gruchy testified
that throughout November or December 2019, he and Grubbs “split” up action items,5
aiming to complete them “[i]mmediately” or “[a]s soon as possible.” (Doc. No. 50-35 at

21:14–25.) De Gruchy also testified that, as he cleared an item, he reached out to Shellum
and notified Grubbs. (See Doc. No. 50-35 at 29:3–7; Doc. No. 50-33; Doc. No. 50-34.)
Then, in early January 2020, when de Gruchy was on the fourth floor of the Calumet,
he smelled smoke and heard the fire alarm. (Doc. Nos. 50-36, 50-37.) After observing
smoke coming from beneath a door to a room on the fourth floor, de Gruchy unlocked the

door and used a fire extinguisher to put out the fire. (Doc. No. 50-37; Doc. No. 50-35 at
33:2–7.) The sprinklers in the room had not turned on, and there were two children present
in the room at the time of the fire. (Doc. No. 50-35 at 33:16–18.)
On February 20, 2020, Shellum sent de Gruchy an email noting that notice of
compliance with the 2019 Fire Order was overdue. (Doc. No. 50-42 at 3.) De Gruchy

5 For her part, Grubbs testified that she did not see the 2019 Fire Order until March 2020.
(Doc. No. 50-38 at 72:5–73:5.) However, de Gruchy testified that he refused to sign an
affidavit prepared by Plaintiffs’ counsel in this litigation that represented that de Gruchy
and Grubbs never reviewed the 2019 Fire Order until March 2020 because it was not true.
(Doc. No. 50-35 at 37:15–18.)
responded and informed Shellum that he “no longer work[s] for the Calumet”6 and that he
“passed all info along to Tammy Grubbs.” (Id. at 1–2.) Shellum then forwarded the email

chain, attaching a copy of the 2019 Fire Order, to a defunct email address that he believed
belonged to Grubbs. (See id. at 1.)
D. Emergency Closure of the Calumet
Fortune testified that, on March 5, 2020, Shellum contacted him regarding the
failure of Calumet’s sprinklers to deploy during the January fire and inquired whether
Fortune had ever closed down a building in Pipestone. (Doc. No. 50-48 at 136:7–137:16.)

That same day, Shellum also contacted Southwest Health and Human Services
Environmental Health Manager John Kloss (i.e., the health inspector) about the Calumet’s
unremedied fire-code violations and to inform him that the hotel’s sprinklers did not deploy
during the January 2 fire. (See Doc. No. 50-43; Doc. No. 50-46 at 1.)
On March 6, 2020, Kloss contacted Grubbs by letter regarding overdue items on the

2019 Fire Order. (Doc. No. 50-43.) He advised Grubbs that unremedied violations may
require the health inspector to close the hotel, and he also noted, in bolded text, as follows:
George Shellum, Deputy State Fire Marshal Inspector, will be
conducting an inspection on Monday, March 9 to assess the
fire safety measures in this establishment. Be advised that
failure to comply with the orders issued on the fire marshal
inspection report by the specified date will result in emergency
closure of your hotel.

6 De Gruchy left employment with the Calumet around January 2020; he and Grubbs have
not spoken since his departure. (Doc. No. 50-47.)
(Id.) He also enclosed a copy of the 2019 Fire Order. (Id.) Despite Grubbs’s claim that
she had never before seen the 2019 Fire Order, Shellum informed Grubbs that the

upcoming March 9 inspection would proceed as planned. (Doc. No. 50-44 at 2–3.)
On March 9, 2020, Shellum, Fortune, and Kloss conducted their inspection. (Doc.
No. 50-38 at 76:11–14; Doc. No. 45 at 47:15–17.) Shellum identified five items from the
2019 Fire Order that had not been remedied. (Doc. No. 50-45; Doc. No. 50-46.) He also
identified eight new violations that required correction within specified time periods of
seven to thirty days. (Doc. No. 50-45; Doc. No. 50-46.) The next day, Fortune issued a

notice (Building Closure Order), which read as follows:
After the [March 9] inspection was completed it was
determined that the [C]alumet Hotel is a “distinct fire hazard.”
Per the current Minnesota Building Code and State Fire Code
the hotel is CONDEMNED. With that determination all
occupants must vacate the premises by 5:00 PM March 10,
2020.
Minnesota Administrative Rule 1300.0180 states: “A building
or structure regulated by the code is unsafe, for the purposes of
this part, if it is structurally unsafe, not provided with adequate
egress, a fire hazard, or otherwise dangerous to human life.”
It further states: “The building official SHALL order any
building or portion of a building to be vacated if continued use
is dangerous to life, health, or safety of the occupants[.]
(Doc. No. 50-47 at 2 (emphasis in original); Doc. No. 50-47.) The Building Closure Order
then set forth a checklist of code violations that had to be abated before the Calumet could
reopen. (Doc. No. 50-47 at 2–3.) Fortune testified that, during the March 9 inspection, he
observed hazardous conditions on the property, which caused him to conclude that “what
I saw doing the inspection with George Shellum endangered life.” (Doc. No. 50-47 at
159:6–10.) Fortune testified that he did not want to “tak[e] that chance on the life, safety
and health of the occupants of that building,” he viewed his options as either “have the

hazard removed or the occupants removed from the hazard,” and he chose the latter. (Doc.
No. 50-48 at 88:12–15; 89:9–11; see also id. at 47:15–18, 93:22–94:2; 143:22–144:1,
159:6–10.) He viewed the hazards as “not just the fire stuff, but some of the structural stuff
that I saw that I thought the building needed to be closed.” (Doc. No. 50-48 at 54:9–11.)
E. Disagreement with the Building Closure Order
On March 20, 2020, Plaintiffs’ counsel sent a nineteen-page document to the

Pipestone City attorney,7 and asked that it be circulated to the entire Pipestone City
Council. (See Doc. No. 69 ¶ 500.) Three days later, Plaintiffs’ counsel attended a City
Council meeting. (Pipestone City Council Meeting, March 23, 2020, at 1.)8 Meeting
minutes show that “the purpose for the special meeting was to discuss the Calumet Inn and
the COVID-19 Pandemic.” (Id.) The minutes also reflect that Plaintiffs’ counsel “disputed

the process by which the Calumet was closed by the City,” that he threatened litigation in
federal court, and “requested that a meeting of the Board of Appeals be scheduled.” (Id.;
see also Doc. No. 69 ¶ 499.) The minutes neither reflect any motions or resolutions relating

7 The contents of this document are unknown because the parties did not submit it in
support of their summary judgment motions, and, to the Court’s knowledge, it does not
appear elsewhere in the record.
8 The meeting minutes from the March 23, 2020 City Council meeting can be accessed at
https://www.progressivepipestone.com/AgendaCenter/ViewFile/Agenda/_03232020-342.
[https://perma.cc/TE8N-8BPA]. The Court may take judicial notice of public records.
Levy v. Ohl,

477 F.3d 988, 991

 (8th Cir. 2007); Stutzka v. McCarville,

420 F.3d 757

, 761
n.2 (8th Cir. 2005).
to the Calumet nor any vote concerning the Building Closure Order. (See Pipestone City
Council Meeting, March 23, 2020, at 1.)

Then, by letter dated April 13, 2020 (more than one month after Fortune issued the
Building Closure Order),9 Pipestone’s City Attorney advised Plaintiffs to perfect an appeal
with the Minnesota Department of Labor and Industry if they desired to dispute or appeal
the Building Closure Order, as follows:
[The Pipestone] City Code does not provide for—via its Board
of Appeals and Adjustments—an appeal of a violation of than
one of zoning or land-use regulation. Additionally, the
COVID-19 pandemic-flu emergency declarations have
hindered any convening, within 10 days, or an appeal hearing
as would allow due process, full opportunity to be heard, and
composition of a record in a manner as can be cogently, fully
reviewed whether by a court or another body.
. . .

Accordingly, on behalf of the City of Pipestone, I suggest that
your client as soon as possible file and perfect an appeal with
the Minnesota Department of Labor & Industry. The necessary
forms for this are enclosed, as are the four requisites as detailed
in the City’s correspondence of April 8, 2020, and Affidavit of
Mailing of all of these.

(Doc. No. 81-1 at 13–14.) Plaintiffs’ counsel prepared an appeal packet to the state Board
of Appeals on April 28, 2020, but never submitted it. (See Doc. No. 81-1 at 2–12.)
On April 30, 2020, Fortune determined that the Calumet had remedied the code
violations such that condemnation placards on the building could be removed. (Doc. No.

9 In a sworn declaration, Smrkovski references—but does not attach—additional
communications between Plaintiffs’ counsel and City officials in the days after the March
23, 2020 City Council meeting. (See Doc. No. 69 ¶¶ 499–516.)
50-54; see also Doc. No. 50-52; Doc. No. 50-53.) Grubbs arranged for Kloss’s reinspection
on November 5, 2020, at which point he reissued the relevant licenses to operate. (Doc.

No. 50-59.) However, on May 6, 2022, the Calumet posted on Facebook that it would be
closing indefinitely. (Doc. No. 50-67.) It remains closed today.
F. This Action
On November 10, 2022, Plaintiffs10 filed this action. In Count I of their two-count
Amended Complaint, Plaintiffs assert a claim under

42 U.S.C. § 1983

, in which they allege 
that Fortune and the City violated their procedural due process rights under the Fourteenth 

Amendment by depriving them of adequate process before and after issuing the Building 
Closure Order.  In Count II, they allege that Defendants engaged in an uncompensated 
regulatory taking in violation of the Fifth Amendment by ordering the Calumet to close 
from March 10 through April 30, 2020.                                     
                      DISCUSSION                                     

The parties now bring cross-motions for summary judgment.  (Doc. Nos. 46, 65.)  
Summary judgment is warranted “if the movant shows that there is no genuine dispute as 
to any material fact and the movant is entitled to judgment as a matter of law.”  Fed. R. 
Civ. P. 56(a).  The substantive law determines which facts are “material” and which are 
irrelevant: material facts are those whose resolution affects the outcome of the case.  



10 Smrkovski and Grubbs are named plaintiffs in this action.  However, in the briefing on 
the pending motions, Plaintiffs concede that Smrkovski and Grubbs, as individuals, have 
no legal interest in this dispute and, thus, no Article III standing.  (Doc. No. 80 at 41–42; 
see also Doc. No. 48 at 15–16.)                                           
Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 248

 (1986).  To survive the motion, a non-
moving party must demonstrate the existence of specific facts in the record which create a 

genuine issue for trial.  Krenik v. Cnty. of Le Sueur,

47 F.3d 953, 957

 (8th Cir. 1995).  As 
is normally the case in a summary judgment motion, all justifiable inferences are to be 
drawn in the non-moving party’s favor, Anderson,

477 U.S. at 255

, meaning that the Court 
views the record in the light most favorable to Defendants when considering Plaintiffs’ 
motion, and in the light most favorable to Plaintiffs when considering Defendants’ motion.  
See, e.g., Fjelstad v. State Farm Ins. Co.,

845 F. Supp. 2d 981, 984

 (D. Minn. 2012). 

I.   COUNT I: PROCEDURAL DUE PROCESS                                      
Although the Complaint and Plaintiffs’ legal memoranda are not very precise, the 
Court determines that Plaintiffs advance the following three theories of liability against 
Defendants in Count I: (1) the City deprived Plaintiffs of procedural due process because 
it did not consider an appeal of the Building Closure Order;11 (2) the City and Fortune, in 


11 A municipality such as the City “can be found liable under § 1983 only where the 
municipality itself causes the constitutional violation at issue,” as opposed to the actions 
of a tortfeasor the municipality employs.  City of Canton, Ohio v. Harris,

489 U.S. 378, 385

 (1989); see also Webb v. City of Maplewood,

889 F.3d 483, 487

 (8th Cir. 2018) 
(“[T]here must be an unconstitutional act by a municipal employee before a municipality 
can be held liable.”).  More precisely, a municipality may be liable under section 1983 
under any of the following four circumstances: (1) an official municipal policy violates the 
constitution; (2) an authorized municipal representative directs another employee to take 
unconstitutional  action;  (3)  an  unwritten  custom,  that  violates  the  constitution,  is  so 
widespread that it has the force of law; and (4) the municipality fails to train or supervise 
municipal employees.  See Atkinson v. City of Mountain View,

709 F.3d 1201, 1214

 (8th 
Cir. 2013) (citing Monell v. Dep’t of Soc. Servs.,

436 U.S. 658, 694

 (1978) for the 
proposition that a municipality may be liable under section 1983 if the constitutional 
violation resulted from “an official municipal policy” or “an unofficial custom,” and citing 
Canton for the proposition that a municipality may be liable if the constitutional violation 
resulted from “a deliberately indifferent failure to train or supervise”) (quotations omitted); 
his  official  capacity,  deprived  Plaintiffs  of  procedural  due  process  by  not  providing 
Plaintiffs with an opportunity to remedy the safety concerns identified in the Building 

Closure Order prior the closure of the Calumet; and (3) Fortune, in his individual capacity, 
deprived Plaintiffs of procedural due process through the actions that he took leading up to 
and including issuing the Building Closure Order.  The Court analyzes each of these three 
theories  in  turn  and  ultimately  concludes  that  none  of  Plaintiffs’  theories  survive 
Defendants’ motion because, as defendants argue, they are contrary to law, contrary to the 
factual record presented to the Court, or both.                           

A.   Sufficiency of Procedures for Appeal of the Building Closure Order 
Plaintiffs argue that the City deprived them of their constitutional due process rights 
to post-closure due process (i.e., the right to appeal the substantive merits of the Building 
Closure Order).  However, as discussed below, this argument overlooks the avenues of 
review available to Plaintiffs, which are constitutionally sufficient as a matter of law. 

Procedural due process constrains government decisions “which deprive individuals 
of ‘liberty’ or ‘property’ interests within the meaning of the Due Process Clause of the 


see also Pembaur v. City of Cincinnati,

475 U.S. 469

, 480–81 (1986) (explaining that a 
municipality may be liable under section 1983 if an authorized decisionmaker directed a 
particular unconstitutional course of action that resulted in the complained-of injury). 
In this case, Plaintiffs do not raise a Pembaur variety of municipal liability.  In addition, to 
the extent that any factual statements from the Amended Complaint could be construed as 
asserting an “unwritten custom” or “failure to supervise” variety of municipal liability, no 
party developed any arguments to suggest that such claims remain at issue.  Accordingly, 
the Court construes Plaintiffs’ arguments as advancing only one theory of municipal 
liability regarding an appeal or review of the Building Closure Order: that the City had 
official policies precluding appeal or review of the Building Closure Order. 
Fifth or Fourteenth Amendment.”  Mathews v. Eldridge,

424 U.S. 319, 332

 (1976).  Under 
Mathews, courts balance the following three factors to determine the required procedural 

protections: (1) the private interest affected by the official action; (2) “the risk of an 
erroneous deprivation of such interest through the procedures used” and the probable value 
of additional procedure safeguards; and (3) the government’s interest, “including the fiscal 
or administrative burdens” of additional procedures.  Mathews,

424 U.S. at 321

.
1. The Private Interest Affected
Defendants initially took a conciliatory position concerning the first prong of the

Mathews balancing test, noting that “[c]losing the Calumet . . . implicates procedural due
process.” (Doc. No. 48 at 17.) Subsequently, however, Defendants argued that the
Building Closure Order did not impact any of Plaintiffs’ constitutionally protected property
interests. (Doc. No. 74 at 10–13.) For purposes of its analysis here, the Court assumes
without deciding that Plaintiffs have identified a protected property interest.

2. The Risk of Erroneous Deprivation
Plaintiffs assert that city policy prevented them from appealing the Building Closure
Order. The Court, however, disagrees for several reasons.
First, pursuant to the City Code, all parties whose property interests have been
affected by a building closure decision have a right to appeal that decision to the Pipestone

City Council:
Any person directly affected by a decision of the code official,
or a notice or order issued under this code shall have the right
to appeal to the City Council provided that a written
application for appeal is filed within 20 days after the day the
decision, notice, or order was served. An application for
appeal shall be based on a claim that the true intent of this code
or the rules legally adopted hereunder have been incorrectly
interpreted, the provisions of this code do not fully apply, or
the requirements of this code are adequately satisfied by other
means.
City Code § 151.11(A) (concerning appeals of building closure decisions due to failure to
remedy code violations under section 151.08 and due to emergency decisions in the event
of imminent danger under section 151.09).
The appeal hearing contemplated by City Code § 151.11(A) includes several
procedural protections. For instance, after receiving “[a]n application for appeal,” the
Pipestone City Council must follow the statutory open meeting notice requirements and
schedule a time to hear the appeal: “The City Council shall meet to hear the appeal upon
proper notice as determined by M.S. Chapter 13D et seq.” Id. § 151.11(B).12 In addition,
among other procedural provisions, the City Code sets forth evidentiary requirements and
establishes which individuals “shall be given an opportunity to be heard” at the appeal

hearing. Id. § 151.11(C). Importantly, any modification or reversal of the building closure
decision can only occur “by a vote of a majority of the total number of Council members,”
and that decision “shall be recorded,” with copies “furnished to the appellant and the code
official,” who is required “to take immediate action in accordance with the decision of the
City Council.” Id. § 151.11(D).

12 Among other requirements, the open meeting statute provides that for any special
meetings, “the public body shall post written notice of the date, time, place, and purpose
of the meeting . . . .” Minn. Stat. § 13D.04, subd. 2.
Second, Minnesota state law provides for appeals to the State Building Code
Appeals Board. Administrative Rules specifically mandate that if a municipal appellate

board has not held an appeal hearing “within ten working days from the date the
municipality receives a properly completed application for appeal . . . the applicant may
appeal directly to the State Building Code Appeals Board.” Minn. Admin. R. 1300.0230,
subpt. 1.
Third, both the City Code and state law provide for judicial review of building
closure decisions by writ of certiorari.13 City Code § 151.11(E) (“Any person, whether or

not a previous party of the appeal, shall have the right to apply to the appropriate court for
a writ of certiorari to correct errors of law.”); Khan v. City of Minneapolis, No. A12-1424,

2013 WL 2371807

, at *1 (Minn. App. June 3, 2013) (observing that property owners may 
challenge a municipality’s decision to condemn and demolish property by writ of certiorari 
and concluding that the city improperly considered evidence at the municipal appeal 

hearing in violation of the city code); A & M Prop. Servs., LLC v. City of Minneapolis, No. 
A12-0007,

2012 WL 5990237

,  at  *1  (Minn.  App.  Dec.  3,  2012)  (upholding  a 
municipality’s condemnation order on certiorari review and affirming the district court’s 



13 In addition, parties commencing an inverse condemnation proceeding or challenging a 
municipality’s interpretation of law—including claims that a municipality failed to comply 
with its code or state law—may seek compliance through a writ of mandamus.  E.g.,

Minn. Stat. § 586.01

; see also N. States Power Co. v. Minn. Metro. Council,

684 N.W.2d 485, 491

(Minn. 2004). There is no indication in this record that Plaintiffs sought a writ of
mandamus compelling the Pipestone City Council to review the Building Closure Order.
determination that the municipality did not deprive the property owner of procedural due
process under the U.S. Constitution).

Plaintiffs could have sought review of Fortune’s basis for and decision to issue the
Building Closure Order by submitting “an application for appeal” to the Pipestone City
Council, by submitting “a properly completed application for appeal” to the State Building
Code Appeals Board, or by seeking certiorari review (or judicial review through a writ of
mandamus) of any appeal proceedings that did occur.
As noted above, Plaintiffs’ arguments to this Court are not very precise, but to the

extent that Plaintiffs separately argue that, as a factual matter, the City prevented them from
appealing the Building Closure Order, the Court disagrees. None of the parties submitted
the nineteen-page document that Plaintiffs provided to the Pipestone City attorney, so the
Court cannot definitively determine whether this document constitutes “an application for
appeal” pursuant to City Code § 151.11(A). But the record is clear and undisputed that the

Pipestone City Council never convened an appeal hearing pursuant to City Code
§ 151.11(A). Though the City Council met on March 23, 2020, thirteen days after the
issuance of the Building Closure Order, and although the agenda included a discussion of
the fact that Plaintiffs “disputed the process by which the Calumet was closed by the City,”
the meeting minutes do not reflect that an appeal proceeding took place at this meeting.

(Pipestone City Council Meeting, March 23, 2020, at 1.) No vote concerning whether to
uphold, modify, or reverse the Building Closure Order is recorded. (Id.) Moreover,
Plaintiffs describe this meeting as “not an appeal.” (Doc. No. 68 at 35.) Thus, the record
does not support any inference that Plaintiffs invoked the appeal process set forth in City
Code § 151.11(A). Likewise, although Plaintiffs’ counsel prepared an appeal packet to the
state Board of Appeals, Plaintiffs never submitted it and, therefore, never invoked the

administrative appeal process set forth in Minnesota Administrative Rule 1300.0230. (See
Doc. No. 81-1 at 2–12.) Finally, there was no request for certiorari review (or a request
for a writ of mandamus) concerning the March 23, 2020 meeting, or the April 13, 2020
letter, in which the Pipestone City Attorney advised Plaintiffs’ Council to seek review
through Rule 1300.0230.
Further, Plaintiffs make no argument that the appeal processes contemplated by City

Code § 151.11(A) or Minnesota Administrative Rule 1300.0230 are constitutionally
inadequate.14 Plaintiffs also make no argument that certiorari review would be inadequate.
Absent any argument and absent any legal authority that procedural due process demands
something above and beyond the appellate procedure as contemplated in City Code
§ 151.11(A), as provided for in Rule 1300.0230, including subsequent certiorari review

(none of which Plaintiffs pursued), the Court concludes that as a matter of law, Plaintiffs
were very unlikely to experience an erroneous deprivation of their property interest. Thus,
Defendants did not preclude Plaintiffs from exercising any rights of appeal.

14 Though not binding on this Court, the Court acknowledges that Minnesota Court of
Appeals concluded that Rule 1300.0230 satisfied the requirements of procedural due
process under both the Minnesota and U.S. Constitutions. See Hous. First Minn. v. City of
Corcoran, No. A23-1049,

2024 WL 1244047

, at *6 (Minn. App. Mar. 25, 2024), review 
denied (June 26, 2024), cert. denied sub nom.  Hous. First Minn. v. Corcoran, MN, No. 
24-268,

2024 WL 4486403

(U.S. Oct. 15, 2024).
3. The Burden of Additional Process
Plaintiffs only argument concerning the third Mathews factor is that the burden of

allowing an appeal of the Building Closure Order was minimal. Given the Court’s
conclusion that multiple avenues of appeal were, in fact, available to Plaintiffs to dispute
the merits of the Building Closure Order, this argument is misplaced.
In sum, even assuming that Plaintiffs’ property interest is a protected interest under
the first Mathews factor, on balance, and based on the record presented, the Court
concludes there was no procedural due process violation in this case.

B. Lack of Constitutional Requirement for Pre-Closure Procedures
Plaintiffs also take issue with the lack of any opportunity to contest the
determination that the Calumet was an immediate danger as well as the lack of any
opportunity for repair or abatement of any identified hazards. This argument is also
unsupported by legal authority.

Here, it is undisputed that the City Code and state rules provide for an expedited
procedure by which to close a hazardous building that does not allow any pre-closure
opportunity to be heard. See City Code § 151.09; Minn. Admin. R. 1300.0180. Plaintiffs
do not make a facial attack on the constitutionality of these ordinances and rules.15 In fact,

15 In their briefing and at oral argument, Plaintiffs’ counsel asserted that the pre-
condemnation procedures described in Minnesota Statutes chapter 117, which apply when
a government entity condemns property under its eminent domain powers, should have
applied in this case. An eminent-domain condemnation under chapter 117 requires, for
example, that the condemning government entity engage in pre-condemnation negotiation
and thereafter follow certain judicial procedures involving a petition, hearing, and appeal.
See Minn. Stat. ch. 117. However, the City did not condemn the Calumet under its eminent
domain powers. Although the Building Closure Order used the word “condemned” instead
Plaintiffs concede that, under Gilbert v. Homar,

520 U.S. 924

 (1997), the Constitution 
allows deprivations of a property interest without any opportunity to be heard: “on many 

occasions . . . where a State must act quickly, or where it would be impractical to provide 
predeprivation  process,  postdeprivation  process  satisfies  the requirements  of  the  Due 
Process Clause.”

Id. at 930

 (“[W]e have rejected the proposition that due process always 
requires  the  State  to  provide  a  hearing  prior  to  the  initial  deprivation  of  property.” 
(quotation omitted) (emphasis in original)).                              
Plaintiffs nevertheless argue that “Fortune knew that there was no need for prompt 

action, that the action was neither necessary nor justified, and moreover, not necessary to 
secure an important governmental or general public interest.”   (Doc. No. 68 at 20.)  
However,  whether  Fortune  and  the  City  were  correct  to  conclude  that  the  Calumet 
presented  an  immediate  danger  is  irrelevant  to  the  question  presented  here:  whether 
Plaintiffs deprived of procedural due process to which they were entitled under the U.S. 

Constitution.  Parrish v. Mallinger,

133 F.3d 612, 615

(8th Cir. 1998) (observing that the
focus in assessing a procedural due process claim is “not on the merits of a deprivation, but
on whether the State circumscribed the deprivation with constitutionally adequate
procedures”). The Court is limited to the arguments presented. Accordingly, absent any
argument that Gilbert does not extend to the emergency closure provisions set forth in City

of “vacated,” the Order duly cited the emergency authority under which the closure was
made: Rule 1300.0180 of the Minnesota Administrative Rules. The use of the word
“condemned” does not materially affect or otherwise convert the emergency closure that
occurred here into a “condemnation” contemplated by chapter 117.
Code § 151.09 and Minnesota Administrative Rule 1300.0180, Plaintiffs have not
demonstrated that the Constitution required Fortune or the City to implement additional
pre-closure procedures.16 This is especially true where, as here, Plaintiffs had several post-

closure procedures available to ensure that their interests were not erroneously deprived.
C. Fortune’s Immunity from Suit
The Court also construes Plaintiffs’ written submission to assert an independent due
process violation against Fortune in his individual capacity. The Court remains
unconvinced by Plaintiffs’ arguments because, as noted above, Plaintiffs do not identify a

clearly established right that Fortune’s actions violated.
As a municipal official, the doctrine of qualified immunity, if applicable, would
shield Fortune from liability in his individual capacity. Courts analyze the applicability of
qualified immunity in two steps: first, courts determine “whether the official’s conduct

16 To the extent the portions of the Amended Complaint or Plaintiffs’ written submission
assert a separate section 1983 claim based on the fact that the Building Closure Order did
not include a notice of Plaintiffs’ avenues of appeal, the Court concludes that such an
argument is foreclosed by binding case law. See, e.g., City of W. Covina v. Perkins,

525 U.S. 234, 241

  (1999)  (concluding  that  constitutional  due  process  does  not  require 
“individualized notice of state-law remedies which, like those at issue here, are established 
by published, generally available state statutes and case law”); Grayden v. Rhodes,

345 F.3d 1225

, 1241–42 (11th Cir. 2003) (concluding that notice was constitutionally sufficient 
where tenants could have referenced city code to determine right to hearing); Mathews v. 
Ohio Pub. Empls. Retirement Sys.,

91 F. Supp. 3d 989, 1005

 (S.D. Ohio 2015) (concluding 
that individualized notice regarding appeal rights was not necessary when such rights were 
in publicly available state law); Crum v. Missouri Director of Revenue,

455 F. Supp. 2d 978, 990

  (W.D.  Mo.  2006)  (concluding  that  because  plaintiffs  appeal  rights  were 
“established by published, generally available state statutes and case law . . . the Due 
Process clause of the United States Constitution did not mandate notice to the Plaintiffs of 
their administrative appeal rights”).                                     
violated a constitutional right; and second, courts determine “whether the right was clearly 
established at the time of the deprivation such that a reasonable official would understand 

his conduct was unlawful in the situation he confronted.”  Ambrose v. Young,

474 F.3d 1070, 1077

 (8th Cir. 2007).  Plaintiffs can establish the second prong by identifying “some 
existing precedent [that] place[s] the question beyond debate,” or by showing that the 
conduct  is  “so  obviously  unconstitutional  that  no  precedent  is  needed.”    Dillard  v. 
O’Kelley,

961 F.3d 1048, 1053

 (8th Cir. 2020) (quotation omitted).  Courts need not 
analyze  both  prongs,  Wimbley  v.  Cashion,

588 F.3d 959, 961

  (8th  Cir.  2009),  and 

ultimately, whether the doctrine applies is a question of law.  Hunter v. Bryant,

502 U.S. 224

, 227–28 (1991).                                                       
Here, Plaintiffs do not identify legal authorities to “place the question beyond 
debate.”  Plaintiffs rely on a single case, but that case does not involve the constitutionality 
of any analogous pre-closure action or process involving a code official.  Instead, the case 

cited by Plaintiffs merely reiterates an uncontroversial and general statement of law: “the 
fundamental requisite of due process of law is the opportunity to be heard.”  (Doc. No. 80 
at 34 (quoting Grannis v. Ordean,

234 U.S. 385, 394

 (1914)).)  As discussed in the 
preceding section, Gilbert allows for emergency action, and Plaintiffs do not identify a 
clearly established exception to Gilbert that applies in this case.  Because there is no clearly 

established right to pre-closure process when a city official issues a closure order under 
emergency closure authority, such as City Code § 151.09 and Rule 1300.0180, Fortune is 
entitled to qualified immunity from suit in his individual capacity.      
II.  COUNT II: REGULATORY TAKING                                          
Plaintiffs argue that the temporary closure of the Calumet amounted to a regulatory 

taking under the Fifth Amendment.  (Doc. No. 48 at 35–39.)  Because prohibiting use of a 
property to protect public safety is not a taking, the Court also grants Defendants’ motion 
as to this claim, as well.                                                
“[G]overnment regulation of private property may, in some instances, be so onerous 
that its effect is tantamount to a direct appropriation or ouster.”  Lingle v. Chevron U.S.A. 
Inc.,

544 U.S. 528, 537

 (2005).  Assuming that Plaintiffs have identified a protected 

property interest in their ownership of the real property of the Calumet, see Dukuly v. City 
of New Hope, No. 23-CV-3351 (ECT/ECW)

2024 WL 3251733

, at *5–6 (D. Minn. June 
21, 2024) (concluding that, for purposes of a takings analysis, Minnesota law recognizes a 
real property interest but does not recognize a party’s right to profit streams from a license 
to operate a business), the Court observes that whether a regulatory takings has occurred 

typically requires consideration of a three-factor test.  See, e.g., Northland Baptist Church 
of St. Paul, Minn. v. Walz,

530 F. Supp. 3d 790

, 816 (D. Minn. Mar. 30, 2021) (citing Penn 
Cent. Transp. Co. v. City of N.Y.,

438 U.S. 104, 124

 (1978)).             
However, it well-established that reasonable building codes and ordinances that 
permit closure of buildings for public safety reasons do not give rise to constitutional 

takings.  Outdoor Graphics, Inc. v. City of Burlington, Iowa,

103 F.3d 690, 695

 (8th Cir. 
1996) (“It has long been recognized that reasonable zoning ordinances are generally a 
lawful exercise of a state’s police power to regulate in the interest of public health, comfort, 
safety, convenience and maintenance of property values.” (citation omitted)); see also 
Cedar Point Nursery v. Hassid,

594 U.S. 139, 160

 (2021) (“[T]he government owes a 
landowner no compensation for requiring him to abate a nuisance on his property, because 

he never had a right to engage in the nuisance in the first place.”); Mugler v. Kansas,

123 U.S. 623, 668

 (1887) (“[P]rohibition simply upon the use of property for purposes that are 
declared,  by  valid  legislation,  to  be injurious  to  the  health, morals,  or  safety of  the 
community, cannot, in any just sense, be deemed a taking or appropriation of property.”); 
Dukuly,

2024 WL 3251733

, at *9; Zeman v. City of Minneapolis,

552 N.W.2d 548, 554

 
(Minn. 1996) (“A harm-prevention regulation, if not a ruse for a state purpose other than 

protecting  the  public  from  noxious  harm  or  illegal  activity,  is  a  powerful  rationale 
militating against finding a taking.”)                                    
Here, the parties do not dispute the fact that Plaintiffs were unable to conduct 
business at the Calumet during the period of March 10, 2020, through April 30, 2020, 
which undoubtedly caused an adverse economic impact—especially for the six days before 

Governor Walz issued Emergency Executive Order 20-04, which ordered the closure of 
bars, restaurants, and other places of public accommodation in Minnesota.  See Gov. Tim 
Walz, Emergency Exec. Order 20-04 (Mar. 16, 2020).  It is likewise undisputed that the 
temporary condemnation was not meant to benefit Fortune, and Plaintiffs do not contend 
that the code violations cited in the Building Closure Order were pretextual or in excess of 

the City’s lawful regulatory authority.  Further, Plaintiffs do not cite to any legal authority 
in which a court determined that the exercise of such regulatory authority for public-health 
and  safety  reasons  or  a  less-than-two-month  closure  of  a  business  amounted  to  a 
compensable taking under the Fifth Amendment.  (See Doc. No. 68 at 30–34.)  The decision 
to issue the Building Closure Order cannot constitute a taking given the well-established 
case law permitting the prohibition of property uses that present a danger to the public.  

Therefore, the Court grants Defendants’ motion for summary judgment on Count II.

ORDER

Based on the foregoing, and on all of the files, records, and proceedings herein, IT 
IS HEREBY ORDERED THAT:                                                   
1.   Plaintiffs’ motion for summary judgment (Doc. No. 65) is DENIED. 
2.   Defendants’ motion for summary judgment (Doc. No. 46) is GRANTED and 
     all counts in Plaintiffs’ Amended Complaint are DISMISSED.      
3.   The pending motions to exclude expert testimony (Doc. Nos. 51, 58) are 
     DENIED as moot.                                                 
LET JUDGMENT BE ENTERED ACCORDINGLY.                                 
Dated:  December 18, 2024               /s/ Jeffrey M. Bryan              
                                   Judge Jeffrey M. Bryan            
                                   United States District Court

Trial Court Opinion

            UNITED STATES DISTRICT COURT                             
                DISTRICT OF MINNESOTA                                


reVamped  LLC,   Heliocentrix  LLC,    File No. 22-CV-02881 (JMB/TNL)     
Minnesota  limited  liability  companies;                                 
Tammy Grubbs; and Vanda Smrkovski;                                        

     Plaintiffs,

ORDER

City of Pipestone, a Minnesota municipality;
and Doug Fortune, in his individual and
official capacities;

Defendants.

Minn. Stat. §§ 463

.15–.26 (relating to

477 F.3d 988, 991

 (8th Cir. 2007); Stutzka v. McCarville,

420 F.3d 757

, 761
n.2 (8th Cir. 2005).
to the Calumet nor any vote concerning the Building Closure Order. (See Pipestone City
Council Meeting, March 23, 2020, at 1.)

42 U.S.C. § 1983

, in which they allege 
that Fortune and the City violated their procedural due process rights under the Fourteenth 

Amendment by depriving them of adequate process before and after issuing the Building 
Closure Order.  In Count II, they allege that Defendants engaged in an uncompensated 
regulatory taking in violation of the Fifth Amendment by ordering the Calumet to close 
from March 10 through April 30, 2020.                                     
                      DISCUSSION                                     

The parties now bring cross-motions for summary judgment.  (Doc. Nos. 46, 65.)  
Summary judgment is warranted “if the movant shows that there is no genuine dispute as 
to any material fact and the movant is entitled to judgment as a matter of law.”  Fed. R. 
Civ. P. 56(a).  The substantive law determines which facts are “material” and which are 
irrelevant: material facts are those whose resolution affects the outcome of the case.  



10 Smrkovski and Grubbs are named plaintiffs in this action.  However, in the briefing on 
the pending motions, Plaintiffs concede that Smrkovski and Grubbs, as individuals, have 
no legal interest in this dispute and, thus, no Article III standing.  (Doc. No. 80 at 41–42; 
see also Doc. No. 48 at 15–16.)                                           
Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 248

 (1986).  To survive the motion, a non-
moving party must demonstrate the existence of specific facts in the record which create a 

genuine issue for trial.  Krenik v. Cnty. of Le Sueur,

47 F.3d 953, 957

 (8th Cir. 1995).  As 
is normally the case in a summary judgment motion, all justifiable inferences are to be 
drawn in the non-moving party’s favor, Anderson,

477 U.S. at 255

, meaning that the Court 
views the record in the light most favorable to Defendants when considering Plaintiffs’ 
motion, and in the light most favorable to Plaintiffs when considering Defendants’ motion.  
See, e.g., Fjelstad v. State Farm Ins. Co.,

845 F. Supp. 2d 981, 984

 (D. Minn. 2012). 

I.   COUNT I: PROCEDURAL DUE PROCESS                                      
Although the Complaint and Plaintiffs’ legal memoranda are not very precise, the 
Court determines that Plaintiffs advance the following three theories of liability against 
Defendants in Count I: (1) the City deprived Plaintiffs of procedural due process because 
it did not consider an appeal of the Building Closure Order;11 (2) the City and Fortune, in 


11 A municipality such as the City “can be found liable under § 1983 only where the 
municipality itself causes the constitutional violation at issue,” as opposed to the actions 
of a tortfeasor the municipality employs.  City of Canton, Ohio v. Harris,

489 U.S. 378, 385

 (1989); see also Webb v. City of Maplewood,

889 F.3d 483, 487

 (8th Cir. 2018) 
(“[T]here must be an unconstitutional act by a municipal employee before a municipality 
can be held liable.”).  More precisely, a municipality may be liable under section 1983 
under any of the following four circumstances: (1) an official municipal policy violates the 
constitution; (2) an authorized municipal representative directs another employee to take 
unconstitutional  action;  (3)  an  unwritten  custom,  that  violates  the  constitution,  is  so 
widespread that it has the force of law; and (4) the municipality fails to train or supervise 
municipal employees.  See Atkinson v. City of Mountain View,

709 F.3d 1201, 1214

 (8th 
Cir. 2013) (citing Monell v. Dep’t of Soc. Servs.,

436 U.S. 658, 694

 (1978) for the 
proposition that a municipality may be liable under section 1983 if the constitutional 
violation resulted from “an official municipal policy” or “an unofficial custom,” and citing 
Canton for the proposition that a municipality may be liable if the constitutional violation 
resulted from “a deliberately indifferent failure to train or supervise”) (quotations omitted); 
his  official  capacity,  deprived  Plaintiffs  of  procedural  due  process  by  not  providing 
Plaintiffs with an opportunity to remedy the safety concerns identified in the Building 

Closure Order prior the closure of the Calumet; and (3) Fortune, in his individual capacity, 
deprived Plaintiffs of procedural due process through the actions that he took leading up to 
and including issuing the Building Closure Order.  The Court analyzes each of these three 
theories  in  turn  and  ultimately  concludes  that  none  of  Plaintiffs’  theories  survive 
Defendants’ motion because, as defendants argue, they are contrary to law, contrary to the 
factual record presented to the Court, or both.                           

A.   Sufficiency of Procedures for Appeal of the Building Closure Order 
Plaintiffs argue that the City deprived them of their constitutional due process rights 
to post-closure due process (i.e., the right to appeal the substantive merits of the Building 
Closure Order).  However, as discussed below, this argument overlooks the avenues of 
review available to Plaintiffs, which are constitutionally sufficient as a matter of law. 

Procedural due process constrains government decisions “which deprive individuals 
of ‘liberty’ or ‘property’ interests within the meaning of the Due Process Clause of the 


see also Pembaur v. City of Cincinnati,

475 U.S. 469

, 480–81 (1986) (explaining that a 
municipality may be liable under section 1983 if an authorized decisionmaker directed a 
particular unconstitutional course of action that resulted in the complained-of injury). 
In this case, Plaintiffs do not raise a Pembaur variety of municipal liability.  In addition, to 
the extent that any factual statements from the Amended Complaint could be construed as 
asserting an “unwritten custom” or “failure to supervise” variety of municipal liability, no 
party developed any arguments to suggest that such claims remain at issue.  Accordingly, 
the Court construes Plaintiffs’ arguments as advancing only one theory of municipal 
liability regarding an appeal or review of the Building Closure Order: that the City had 
official policies precluding appeal or review of the Building Closure Order. 
Fifth or Fourteenth Amendment.”  Mathews v. Eldridge,

424 U.S. 319, 332

 (1976).  Under 
Mathews, courts balance the following three factors to determine the required procedural 

protections: (1) the private interest affected by the official action; (2) “the risk of an 
erroneous deprivation of such interest through the procedures used” and the probable value 
of additional procedure safeguards; and (3) the government’s interest, “including the fiscal 
or administrative burdens” of additional procedures.  Mathews,

424 U.S. at 321

.
1. The Private Interest Affected
Defendants initially took a conciliatory position concerning the first prong of the

not a previous party of the appeal, shall have the right to apply to the appropriate court for
a writ of certiorari to correct errors of law.”); Khan v. City of Minneapolis, No. A12-1424,

2013 WL 2371807

, at *1 (Minn. App. June 3, 2013) (observing that property owners may 
challenge a municipality’s decision to condemn and demolish property by writ of certiorari 
and concluding that the city improperly considered evidence at the municipal appeal 

hearing in violation of the city code); A & M Prop. Servs., LLC v. City of Minneapolis, No. 
A12-0007,

2012 WL 5990237

,  at  *1  (Minn.  App.  Dec.  3,  2012)  (upholding  a 
municipality’s condemnation order on certiorari review and affirming the district court’s 



13 In addition, parties commencing an inverse condemnation proceeding or challenging a 
municipality’s interpretation of law—including claims that a municipality failed to comply 
with its code or state law—may seek compliance through a writ of mandamus.  E.g.,

Minn. Stat. § 586.01

; see also N. States Power Co. v. Minn. Metro. Council,

684 N.W.2d 485, 491

2024 WL 1244047

, at *6 (Minn. App. Mar. 25, 2024), review 
denied (June 26, 2024), cert. denied sub nom.  Hous. First Minn. v. Corcoran, MN, No. 
24-268,

2024 WL 4486403

(U.S. Oct. 15, 2024).
3. The Burden of Additional Process
Plaintiffs only argument concerning the third Mathews factor is that the burden of

520 U.S. 924

 (1997), the Constitution 
allows deprivations of a property interest without any opportunity to be heard: “on many 

occasions . . . where a State must act quickly, or where it would be impractical to provide 
predeprivation  process,  postdeprivation  process  satisfies  the requirements  of  the  Due 
Process Clause.”

Id. at 930

 (“[W]e have rejected the proposition that due process always 
requires  the  State  to  provide  a  hearing  prior  to  the  initial  deprivation  of  property.” 
(quotation omitted) (emphasis in original)).                              
Plaintiffs nevertheless argue that “Fortune knew that there was no need for prompt 

action, that the action was neither necessary nor justified, and moreover, not necessary to 
secure an important governmental or general public interest.”   (Doc. No. 68 at 20.)  
However,  whether  Fortune  and  the  City  were  correct  to  conclude  that  the  Calumet 
presented  an  immediate  danger  is  irrelevant  to  the  question  presented  here:  whether 
Plaintiffs deprived of procedural due process to which they were entitled under the U.S. 

Constitution.  Parrish v. Mallinger,

133 F.3d 612, 615

525 U.S. 234, 241

  (1999)  (concluding  that  constitutional  due  process  does  not  require 
“individualized notice of state-law remedies which, like those at issue here, are established 
by published, generally available state statutes and case law”); Grayden v. Rhodes,

345 F.3d 1225

, 1241–42 (11th Cir. 2003) (concluding that notice was constitutionally sufficient 
where tenants could have referenced city code to determine right to hearing); Mathews v. 
Ohio Pub. Empls. Retirement Sys.,

91 F. Supp. 3d 989, 1005

 (S.D. Ohio 2015) (concluding 
that individualized notice regarding appeal rights was not necessary when such rights were 
in publicly available state law); Crum v. Missouri Director of Revenue,

455 F. Supp. 2d 978, 990

  (W.D.  Mo.  2006)  (concluding  that  because  plaintiffs  appeal  rights  were 
“established by published, generally available state statutes and case law . . . the Due 
Process clause of the United States Constitution did not mandate notice to the Plaintiffs of 
their administrative appeal rights”).                                     
violated a constitutional right; and second, courts determine “whether the right was clearly 
established at the time of the deprivation such that a reasonable official would understand 

his conduct was unlawful in the situation he confronted.”  Ambrose v. Young,

474 F.3d 1070, 1077

 (8th Cir. 2007).  Plaintiffs can establish the second prong by identifying “some 
existing precedent [that] place[s] the question beyond debate,” or by showing that the 
conduct  is  “so  obviously  unconstitutional  that  no  precedent  is  needed.”    Dillard  v. 
O’Kelley,

961 F.3d 1048, 1053

 (8th Cir. 2020) (quotation omitted).  Courts need not 
analyze  both  prongs,  Wimbley  v.  Cashion,

588 F.3d 959, 961

  (8th  Cir.  2009),  and 

ultimately, whether the doctrine applies is a question of law.  Hunter v. Bryant,

502 U.S. 224

, 227–28 (1991).                                                       
Here, Plaintiffs do not identify legal authorities to “place the question beyond 
debate.”  Plaintiffs rely on a single case, but that case does not involve the constitutionality 
of any analogous pre-closure action or process involving a code official.  Instead, the case 

cited by Plaintiffs merely reiterates an uncontroversial and general statement of law: “the 
fundamental requisite of due process of law is the opportunity to be heard.”  (Doc. No. 80 
at 34 (quoting Grannis v. Ordean,

234 U.S. 385, 394

 (1914)).)  As discussed in the 
preceding section, Gilbert allows for emergency action, and Plaintiffs do not identify a 
clearly established exception to Gilbert that applies in this case.  Because there is no clearly 

established right to pre-closure process when a city official issues a closure order under 
emergency closure authority, such as City Code § 151.09 and Rule 1300.0180, Fortune is 
entitled to qualified immunity from suit in his individual capacity.      
II.  COUNT II: REGULATORY TAKING                                          
Plaintiffs argue that the temporary closure of the Calumet amounted to a regulatory 

taking under the Fifth Amendment.  (Doc. No. 48 at 35–39.)  Because prohibiting use of a 
property to protect public safety is not a taking, the Court also grants Defendants’ motion 
as to this claim, as well.                                                
“[G]overnment regulation of private property may, in some instances, be so onerous 
that its effect is tantamount to a direct appropriation or ouster.”  Lingle v. Chevron U.S.A. 
Inc.,

544 U.S. 528, 537

 (2005).  Assuming that Plaintiffs have identified a protected 

property interest in their ownership of the real property of the Calumet, see Dukuly v. City 
of New Hope, No. 23-CV-3351 (ECT/ECW)

2024 WL 3251733

, at *5–6 (D. Minn. June 
21, 2024) (concluding that, for purposes of a takings analysis, Minnesota law recognizes a 
real property interest but does not recognize a party’s right to profit streams from a license 
to operate a business), the Court observes that whether a regulatory takings has occurred 

typically requires consideration of a three-factor test.  See, e.g., Northland Baptist Church 
of St. Paul, Minn. v. Walz,

530 F. Supp. 3d 790

, 816 (D. Minn. Mar. 30, 2021) (citing Penn 
Cent. Transp. Co. v. City of N.Y.,

438 U.S. 104, 124

 (1978)).             
However, it well-established that reasonable building codes and ordinances that 
permit closure of buildings for public safety reasons do not give rise to constitutional 

takings.  Outdoor Graphics, Inc. v. City of Burlington, Iowa,

103 F.3d 690, 695

 (8th Cir. 
1996) (“It has long been recognized that reasonable zoning ordinances are generally a 
lawful exercise of a state’s police power to regulate in the interest of public health, comfort, 
safety, convenience and maintenance of property values.” (citation omitted)); see also 
Cedar Point Nursery v. Hassid,

594 U.S. 139, 160

 (2021) (“[T]he government owes a 
landowner no compensation for requiring him to abate a nuisance on his property, because 

he never had a right to engage in the nuisance in the first place.”); Mugler v. Kansas,

123 U.S. 623, 668

 (1887) (“[P]rohibition simply upon the use of property for purposes that are 
declared,  by  valid  legislation,  to  be injurious  to  the  health, morals,  or  safety of  the 
community, cannot, in any just sense, be deemed a taking or appropriation of property.”); 
Dukuly,

2024 WL 3251733

, at *9; Zeman v. City of Minneapolis,

552 N.W.2d 548, 554

 
(Minn. 1996) (“A harm-prevention regulation, if not a ruse for a state purpose other than 

protecting  the  public  from  noxious  harm  or  illegal  activity,  is  a  powerful  rationale 
militating against finding a taking.”)                                    
Here, the parties do not dispute the fact that Plaintiffs were unable to conduct 
business at the Calumet during the period of March 10, 2020, through April 30, 2020, 
which undoubtedly caused an adverse economic impact—especially for the six days before 

Governor Walz issued Emergency Executive Order 20-04, which ordered the closure of 
bars, restaurants, and other places of public accommodation in Minnesota.  See Gov. Tim 
Walz, Emergency Exec. Order 20-04 (Mar. 16, 2020).  It is likewise undisputed that the 
temporary condemnation was not meant to benefit Fortune, and Plaintiffs do not contend 
that the code violations cited in the Building Closure Order were pretextual or in excess of 

the City’s lawful regulatory authority.  Further, Plaintiffs do not cite to any legal authority 
in which a court determined that the exercise of such regulatory authority for public-health 
and  safety  reasons  or  a  less-than-two-month  closure  of  a  business  amounted  to  a 
compensable taking under the Fifth Amendment.  (See Doc. No. 68 at 30–34.)  The decision 
to issue the Building Closure Order cannot constitute a taking given the well-established 
case law permitting the prohibition of property uses that present a danger to the public.  

Therefore, the Court grants Defendants’ motion for summary judgment on Count II.

ORDER

Based on the foregoing, and on all of the files, records, and proceedings herein, IT 
IS HEREBY ORDERED THAT:                                                   
1.   Plaintiffs’ motion for summary judgment (Doc. No. 65) is DENIED. 
2.   Defendants’ motion for summary judgment (Doc. No. 46) is GRANTED and 
     all counts in Plaintiffs’ Amended Complaint are DISMISSED.      
3.   The pending motions to exclude expert testimony (Doc. Nos. 51, 58) are 
     DENIED as moot.                                                 
LET JUDGMENT BE ENTERED ACCORDINGLY.                                 
Dated:  December 18, 2024               /s/ Jeffrey M. Bryan              
                                   Judge Jeffrey M. Bryan            
                                   United States District Court

Reference

Status: Unknown