Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF MISSOURI

SOUTHERN DIVISION

GALEWOOD WEST DEVELOPMENT, INC., )

)

Plaintiff, )

)

vs. ) Case No. 6:23-cv-03024-MDH

)

CITY OF NIXA, MISSOURI, )

)

Defendant. )

ORDER

Before the Court is Defendant City of Nixa, Missouri’s (“Defendant” or “City”) Motion

for Summary Judgment on Count II of Plaintiff’s Third Amended Complaint. (Doc. 137).

Defendant filed Suggestions in Support (Doc. 138), Plaintiff filed Suggestions in Opposition (Doc.

147), and Defendant has filed a reply. (Doc. 148). Pursuant to the Court’s September 02, 2025,

Order the parties were to file supplemental responses. Plaintiff filed his Supplemental Suggestions

in Opposition (Doc. 157) and Defendant filed a supplemental reply. (Doc. 159). The motion is now

ripe for adjudication on the merits. For the reasons stated herein, Defendant’s Motion for Summary

Judgment is GRANTED.

BACKGROUND

This case arises from an alleged dispute of payment for the development and facilitation of

a comprehensive water and sewer system for property that would be annexed into the City of Nixa.

Plaintiff is an Illinois Corporation in good standing with the State of Illinois. Plaintiff was

registered to do business in Missouri starting in 2002 but was administratively dissolved in

Missouri for failure to file a registration report in 2008. Defendant is a city in Christian County,

Missouri, and is a political subdivision of the State of Missouri.

Plaintiff agreed to undertake and facilitate the creation of a comprehensive water and sewer

system for property that would be annexed into the City. Plaintiff prepared a master drainage plan

for the City and constructed all improvements and infrastructure for the development. Plaintiff

alleges the Defendant was to pay Plaintiff for its services, as well as for reimbursement of the

infrastructure installation, as set forth in the Annexation Agreement and its Sanitary Sewerline

Reimbursement Policy of July 14, 1997.1

Plaintiff alleges it contacted the City in June 2015 to inquire about the status of the

reimbursement payments based on connections to the master sewer line to serve the community

and connect it to the lift station. Development of the property did not take place until late 2017 and

Plaintiff claims it did not learn that development had begun until July 2022. Plaintiff alleges

Defendant failed to reimburse money owned to Plaintiff based upon the improvements and

infrastructure for the development. Plaintiff alleges that other similarly situated contractors were

paid by the City for similar developments, but that Plaintiff was not based upon his race.

Defendant now brings its Motion for Summary Judgment arguing that its entitled to

Summary Judgment on Plaintiff’s sole remaining count, Count II – Racial Discrimination Pursuant

to 42 U.S.C. §§ 1981(b) and 1983.2 Defendant argues that the undisputed facts establish that the

1 The reimbursement procedure as defined in the Sanitary Sewerline Reimbursement Policy is as follows: Step One

was to determine the maximum capacity of the offsite sewer line in gallons per day. Step Two was to determine the

final cost of the offsite sewer line, including construction costs, engineering costs, surveying costs, permit fees, change

orders, and other costs directly pertaining to the offsite sewer line. Step Three was to divide the total cost of the offsite

sewer line by the maximum capacity of the offsite sewerline to determine the cost of gallons per day. Step Four

required all persons connecting to the offsite sewer line to pay the installing person the product of their maximum

daily flow and the cost per gallon per day as determined in Step Three.

2 On October 7, 2024, this Court granted in part and denied in part the City of Nixa’s Motion to Dismiss. (Doc. 107).

The Court granted Defendant’s Motion to Dismiss as to Counts I, III and IV. The Court denied Defendant’s Motion

Defendant has no official policy that is discriminatory; no widespread discriminatory custom; there

is no written contract complying with Mo. Rev. Stat. § 432.070 that requires Defendant to pay

Plaintiff any money; Plaintiff has not been authorized to transact business in the State of Missouri

since 2008; and Plaintiff’s minority status played no role in Defendant’s consideration and denial

of Plaintiff’s payment inquiry made in 2022.

STANDARD

Summary judgment is proper where, viewing the evidence in the light most favorable to

the non-moving party, there are no genuine issues of material fact and the moving party is entitled

to judgment as a matter of law. Fed. R. Civ. P. 56(a); Reich v. ConAgra, Inc., 987 F.2d 1357, 1359

(8th Cir. 1993). “Where there is no dispute of material fact and reasonable fact finders could not

find in favor of the nonmoving party, summary judgment is appropriate.” Quinn v. St. Louis

County, 653 F.3d 745, 750 (8th Cir. 2011). Initially, the moving party bears the burden of

demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S.

317, 323 (1986). If the movant meets the initial step, the burden shifts to the nonmoving party to

“set forth specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986). To satisfy this burden, the nonmoving party must “do more than

simply show there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus.

Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).

ANALYSIS

I. Statement of Unconverted Facts

as to Count II. This Court also granted the Motion to Dismiss Defendants Cossey, Steele, Bingle and Colvin in addition

to the Motion to Dismiss Defendant Covington. The only remaining claim is Plaintiff’s Count II against the City of

Nixa.

Defendant argues that Plaintiff denied paragraphs 1, 6, 7, 11, 12, 20, 22, 25, 26, 27, 28, 32,

and exhibited 104 pages of documents with its Suggestions in Opposition for the reason of its

denials. Defendant asserts that Plaintiff failed to cite to the Court any particular pages or

paragraphs within the 104 pages exhibited that would support its denials and thus runs afoul of

Federal Rule of Civil Procedure 56 and Local Rule 56.1. Defendant argues that as a consequence

the host of unsupported factual allegations scattered throughout Plaintiff’s Brief cannot be

considered by this Court in ruling on its Motion for Summary Judgment.

Federal Rule of Civil Procedure 56 governs the procedures for summary judgment. It

states:

(1) Supporting Factual Positions. A party asserting that a fact cannot be or is

genuinely disputed must support the assertion by:

(A) Citing to particular parts of materials in the record, including

depositions, documents, electronically stored information, affidavits or

declarations, stipulations (including those made for purpose of the motion

only), admissions, interrogatory answers, or other materials; or

(B) Showing that the materials citied do not establish the absence or

presence of a genuine dispute, or that an adverse party cannot produce

admissible evidence to support the fact.

Fed. R. Civ. P. 56(c)(1). Local Rule 56.1(b) states:

1. A party opposing a motion for summary judgment must begin its opposing

suggestions by admitting or controverting each separately numbered paragraph

in the movant’s statement of facts. If the opposing party controverts a given

fact, it must properly support its denial in accordance with Fed. R. Civ. P. 56(c).

Unless specifically controverted by the opposing party, all facts set forth in the

statement of the movant are deemed admitted for the purpose of summary

judgment.

2. If the opposing party relies on any facts not contained in the movant’s

suggestions, the party must add a concise listing of material facts. Each fact in

dispute must be set forth in a separately numbered paragraph and properly

supported in accordance with Fed. R. Civ. P. 56(c).

Local Rule 56.1(b)(1)-(2).

The Court agrees with Defendant. Plaintiff in its Suggestions in Opposition has failed to

adhere to Federal Rule of Civil Procedure 56(c)(1) or Local Rule. 56.1(b). Plaintiff generally cites

materials in the record such as “See Plaintiff’s Third Amended Complaint” and “Exhibit B

consisting of ten pages”. (Doc. 147, Response to ¶¶ 5 and 6). Plaintiff however fails to cite to

particular parts of the material in support of its position to contest Defendant’s Statement of

Uncontroverted Facts. Further, even though Plaintiff disagrees with portions of Defendants

Statement of Uncontroverted Facts, it fails to produce any additional material facts not contained

in the movant’s listing. For the reasons stated, the Court will not take into account any material

fact that was not added as a concise listing of material fact.

II. Racial Discrimination Pursuant to 42 U.S.C. § 1981

Defendant next argues that there is no claim against the City based upon 42 U.S.C. § 1981.

Specifically, Defendant argues that claims based upon 42 U.S.C. § 1981 cannot be directly raised

against a state actor bur rather must be brought pursuant to 42 U.S.C. § 1983. Plaintiff argues that

it has pled a prima facie cause of action under 42 U.S.C. § 1981.

42 U.S.C. § 1981 is titled equal rights under the law. Section 1981 states:

All persons within the jurisdiction of the United States shall have the same right in

every State and Territory to make and enforce contracts, to sue, be parties, give

evidence, and to the full and equal benefit of all laws and proceedings for the

security of person and property as is enjoyed by white citizens, and shall be subject

to like punishment, pains, penalties, taxes, licenses, and exactions of every kind,

and to no other.

42 U.S.C. § 1981(a). However, the United States Supreme Court examined the text and history of

42 U.S.C. § 1981 and 42 U.S.C. § 1983 and concluded that “the explicit remedial provisions of §

1983 [are] controlling in the context of damages actions brought against state actors alleging

violation of the rights declared in § 1981.” Davis v. Kansas City Area Transportation Auth., No.

4:22-CV-00102-RK, 2022 WL 3220388, at *3 (W.D. Mo. Aug. 9, 2022) (quoting Jett v. Dallas

Independent School District, 491 U.S. 701 (1989)). In other words, “[a] federal action to enforce

rights under § 1981 against a state actor may only be brought pursuant to § 1983.” Davis v. Kansas

City Area Transportation Auth., No. 4:22-CV-00102-RK, 2022 WL 3220388, at *3 (W.D. Mo.

Aug. 9, 2022) (quoting Artis v. Francis Howell N. Band Boosters Ass’n, Inc., 161 F.3d 1178, 1181

(8th Cir. 1998)).

The Court finds that 42 U.S.C. § 1981 does not provide for a general cause of action against

a state actor. To the extent Plaintiff is seeking a cause of action against Defendant he must do so

through 42 U.S.C. § 1983. To the extent Plaintiff is attempting to state a claim against Defendant

under 42 U.S.C. § 1981, Plaintiff is unable to do. For the reasons stated, Defendant’s Motion for

Summary Judgment as to Count II – Racial Discrimination Pursuant to 42 U.S.C. § 1981 is

GRANTED.

III. Racial Discrimination Pursuant to 42 U.S.C. § 1983

Defendant argues that Plaintiff cannot prove the City has an official policy that is

discriminatory, or any widespread discriminatory custom. Defendant argues that Plaintiff must

plead and prove that the City had an official policy or widespread custom that violated the law and

caused its injury. Defendant argues Plaintiff has not alleged and cannot show any policy statement,

ordinance, regulation, or decision officially adopted and promulgated by the City that is

discriminatory on its face and was used by the City to deny payment to Plaintiff. Defendant

likewise argues that Plaintiff has not alleged and cannot show a widespread custom that violated

the law and caused its injury, or that the City’s alleged misconduct was so pervasive among the

non-policy making employees of the municipality as to constitute a custom or usage with the force

of law.

Plaintiff argues that it has pleaded a prima facie cause of action under 42 U.S.C. § 1983.

Plaintiff additionally argues that the conduct of Defendant in its discharge of its obligations is

indicia of discriminatory intent, its impact on a contractual relationship, and demonstrates that

Defendant withheld payment against the only contractor/developer who is black and doing

business with the City of Nixa. Plaintiff further argues that summary judgment is not appropriate

at this stage of the litigation as not a single deposition of a single party has been undertaken, and

discovery is still open in the case.

42 U.S.C. § 1983 provides a private right of action allowing individuals to sue state

officials who, under color of state law, subject them to the deprivation of any rights, privileges or

immunities secured by federal law. Where, as here, Plaintiff seeks to impose lability for violations

of a constitutional right on a local governmental body via 42 U.S.C. § 1983, they “must show that

there is an official policy or a widespread custom or practice of unconstitutional conduct that

caused the deprivation of a constitutional right.” Marksmeier v. Davie, 622 F.3d 896, 902 (8th Cir.

2010) (citing Monell v. Dept. of Social Servs., 436 U.S. 658, 690–91, 98 S.Ct. 2018, 56 L.Ed.2d

611 (1978)). The relevant custom or practice of unconstitutional conduct must be “so widespread

as to have the force of law.” Bd. of Cnty. Commrs. v. Brown, 520 U.S. 397, 404, 117 S.Ct. 1382,

137 L.Ed.2d 626 (1997) (citing Monell, 436 U.S. at 690, 98 S.Ct. 2018).

A plaintiff may prove unlawful racial discrimination through either direct or circumstantial

evidence. Lucke v. Solsvig, 912 F.3d 1084, 1087 (8th Cir. 2019) (citing Young v. Builders Steel

Co., 754 F.3d 573, 577 (8th Cir. 2014). If he presents circumstantial evidence, he must proceed

under the framework laid out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817,

36 L.Ed.2d 668 (1973). Under McDonnell Douglas, a plaintiff may establish a prima facie case of

racial discrimination through evidence giving rise to an inference that he has been intentionally

discriminated against because of his race. Lucke v. Solsvig, 912 F.3d 1084, 1087 (8th Cir. 2019)

(citing Young, 754 F.3d at 577). He may do so by showing that a similarly-situated person of

another race received more favorable treatment. Young, at 578. That person must be “similarly

situated in all relevant respects.” Id. (quoting Chappell v. Bilco Co., 675 F.3d 1110, 1119 (8th Cir.

2012)).

A person is similarly situated to the plaintiff if he or she possesses all the relevant

characteristics the plaintiff possesses except for the characteristic about which the plaintiff alleges

discrimination. See Barstad v. Murrary Cnty., 420 F.3d 88, 886§87 (8th Cir. 2005). What

constitutes a “relevant respect” or characteristic varies based on the context. See id. The plaintiff

has the burden of locating similarly-situated comparators. Lucke v. Solsvig, 912 F.3d 1084, 1087

(8th Cir. 2019) (citing Harvey v. Anheuser-Busch, Inc., 38 F.3d 968, 972 (8th Cir. 1994)). If a

plaintiff succeeds in establishing his prima facie case, the defendant must then show a “legitimate,

non-discriminatory reason” for the challenged conduct. Young, 754 F.3d at 577–78. Legitimate,

non-discriminatory reason must be “clear and reasonably specific.” Tex. Dep’t of Cmty. Affairs v.

Burdine, 450 U.S. 248, 258, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). Should the defendant

articulate such a reason, the burden shifts back to the plaintiff to show that the offered reason is

pretextual. Young, 754 F.3d at 578. This requires more than merely disputing the reasons; the

plaintiff must present evidence “that the reason was false, and that discrimination was the real

reason.” Ryther v. KARE 11, 108 F.3d 832, 838 n.5 (8th Cir. 1997) (quoting St. Mary’s Honor Ctr.

v. Hicks, 509 U.S. 502, 515, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993)).

The plaintiff may show pretext either though discrediting the proffered reasons or through

showing “that a discriminatory reason more likely motivated the [defendant]….” White v.

McDonnell Douglas Corp., 985 F.2d 434, 436 (8th Cir. 1993) (quoting Burdine, 450 U.S. at 256,

101 S.Ct. 1089). In this Court, “the applicable standard … on summary judgment … ‘require[s]

only that [the] plaintiff adduce enough admissible evidence to raise a genuine doubt as to the

legitimacy of the defendant’s motive, even if that evidence [does] not directly contradict or

disprove [the] defendant’s articulated reason for its actions.’” Strate v. Midwest Bankcentre, Inc.,

398 F.3d 1011, 1021 (8th Cir. 2005) (quoting Davenport v. Riverview Gardens Sch. Dist., 30 F.3d

940, 945 n.8 (8th Cir. 1994)). However, “[t]he ultimate burden of persuading the trier of fact that

the defendant intentionally discriminated against the plaintiff remains at all times with the

plaintiff.” Burdine, 450 U.S. at 253, 101 S.Ct. 1089.

Here, Plaintiff has alleged that similarly situated persons, white contractors, were

reimbursed while Defendant has failed to fully reimburse Plaintiff alleging discrimination based

on race was the defining factor. Plaintiff has alleged in his affidavit that:

The white contractors that were paid without complying with the requirements

imposed upon black contractors, the developer of the Springs through June 2003,

2004, which totaled which reimbursed white developers the sum of $60,062.91, the

developers of Maplewood November 2002 through November 2004, which is

reimbursed white developers $115,930.35, the developers of Park Hill Place and

Jeff Lervy in July of 2004, which reimbursed white developers $34,993.35, the

developers of Spring Valley, which reimbursed white developers on September 14,

2004, which reimbursed white developers $30,216.90, the White Villages Wicklow

and Pat O’Riley for wok between July 2004 and January 2005, which reimbursed

white developers $28,566.00 and $1,009.04, respectively, Fourteen Park Place in

2003 which reimbursed white developers $7,158.90, and Bud Gher, which during

the same in 2003 which reimbursed white developers $10,474.20, Copper Leaf in

June of 2005, which reimbursed white developers and developers/contractors

$40,230.45, Morelock Builder and Wayne Morelock in May of 2021, $208,130.49,

Summit and Meadows and Rose Hill Homes, LLC, 2015, which reimbursed

developers an undisclosed amount, Lampe and Lampe Partners in July 2025, which

reimbursed white developers $30,180.00.

(Doc. 158, ¶ 31). Defendant argues that although Plaintiff’s affidavit states that it is made under

oath, and under penalty of perjury, it does not state that it is being made based upon his personal

knowledge. Defendant argues that Plaintiff does not state or describe anywhere in his affidavit: (a)

how or when he learned of any of the information alleged in paragraph 31; (b) the course of the

evidence upon which he bases his allegation that any of the developers listed in paragraph 31 are

white developers; (c) that he was a party to, or personally involved with, any of the transactions

described in paragraph 31; (d) that he has spoken with anyone in order to obtain the information

contained in paragraph 31, or with whom he has spoken; (e) that he has reviewed any documents

of any kind in order to obtain the information alleged in paragraph 31; or (f) what particular

documents that he has reviewed, researched or analyzed to make himself aware of the facts alleged

in paragraph 31. As such, Defendant has objected to paragraph 31 of Plaintiff’s Second Affidavit

pursuant to Rule 56(c)(2).

Federal Rule of Civil Procedure 56 governs summary judgment. It states in relevant part:

(2) Objection That a Fact Is Not Supported by Admissible Evidence. A party may

object that the material cited to support tor dispute a fact cannot be presented in a

form that would be admissible in evidence.

(4) Affidavits or Declarations. An affidavit or declaration used to support or oppose

a motion must be made on personal knowledge, set out facts that would be

admissible in evidence, and show that the affiant or declarant is competent to testify

on the matters stated.

Fed. R. Civ. P. 56(c)(2) and (4). In support of its position Defendant has filed two affidavits, one

by Travis Cossey, who is the current Assistant Director of Nixa Utilities and Public Works and

one by Jennifer Evans, the Director of Finance for the City of Nixa, Missouri. Defendant argues

that the City has constructed two regional lift stations at significant cost to the City.3 (Doc. 159-1,

¶ 6). When a developer desires to connect its new development to one of the City’s two regional

lift stations to enable sewer service by and through the City’s sewer system, the developer pays

the City, among other things, a fee for connecting to the appropriate regional lift station for sewer

3 A lift station is a facility in a waste-water collection system that uses pumps to move sewage or stormwater from a

lower elevation to a higher elevation when gravity flow is insufficient. (Doc. 159-1, ¶ 7).

service to its development, in order for the City to recoup a portion of the City’s construction costs

for the particular regional lift station. Id. at ¶ 8. The amount charged to the developer by the City

is based upon a formula that takes into account the pro-rata burden placed upon the regional lift

station by the particular development. Id. at ¶ 9. Defendant argues that those white developers

Plaintiff mentioned in ¶ 31 of his Second Affidavit did not get reimbursed by the City but those

amounts were in actuality money the developers paid the City to connect to the regional lift

systems.

To further illustrate the point, Defendant submitted the affidavit of Jennifer Evans, the

Director of Finance for the City of Nixa, Missouri. The affidavit states:

I have researched, reviewed and analyzed the City’s financial records from 2003

forward with respect to the particular developers and payments alleged by Mr.

Benas in paragraph 31 of his second affidavit. The financial records that I have

reviewed include, but are not limited to, cost-share ledger records, which

memorialize lift station payments made by developers to the City; lift station

receipts for the payments made by the developers to the City as identified in the

City’s cost-share ledgers; the City’s available financial statements between 2003

and 2025; and the City’s check ledger system and records to determine if checks

were issued by the City made payable to the developers identified by Mr. Benas in

paragraph 31 of his second affidavit during the years referenced. Based upon my

research, review and analysis of the City’s financial records, I can confirm that the

following reimbursements alleged in paragraph 31 of Mr. Benas’ second affidavit

were made by developers to the City[.]

(Doc. 159-2, ¶¶ 3-5). The following table reflects the information presented in Ms. Evan’s

affidavit.

Date Developer Amounts

Paid to the

City by

Developer

09/01/2004 Larry Ballard (Paid to Shaffer) 24,053.50

10/15/2003 Larry Ballard (The Springs Phase I) 2,354.51

06/01/2004 Larry Ballard (The Springs Phase II) 30,561.30

12/21/2004 Larry Ballard (The Springs) 3,093.91

60,063.22

11/08/2004 Brent Peltzer (Maplewood) 15,147.45

09/01/2004 Brent Peltzer (Maplewood-pd to Shaffer) 100,782.90

115,930.35

08/01/2004 Jud Lurvey (Park Hill Lots 1-56) 12,797.68

11/03/2005 JJL Enterprises 22,195.67

34,993.35

09/01/2004 John Chandler (Spring Valley) 30,216.90

07/01/2004 Ron Middleton (Village @ Wicklow Ph I) 27,423.60

01/31/2005 Ron Middleton (Village @ Wicklow Ph I) 1,142.40

28,566.00

08/10/2005 14 Park Place 2,451.00

12/31/2005 14 Park Place Phase I 11,473.25

12/31/2005 14 Park Place Phase II 5,921.80

17,395.05

06/21/2005 Copperleaf 40,230.45

Id. at ¶ 5. Ms. Evans also stated that:

Based upon my research, review and analysis of the City financial records, that (a)

no checks were written by the City made payable to Bud Gehr for any reason in

2003; (b) no checks were written by the City made payable to Morelock Builder

and/or Wayne Morelock for any reason in 2021; (c) no checks were written by the

City made payable to Summit and Meadows and Rose Hill Homes, LLC, in 2015

for any reason; and (d) no checks were written by the City made payable to Lampe

and Lampe Partners for any reason in 2025.

Id. at ¶ 6.

The information Plaintiff has submitted within his Second Affidavit is roughly

approximate to the values provided by Ms. Evans within her affidavit. However, the difference

between the two is that Plaintiff argues that these contractors were paid by the City while

Defendant asserts that these contractors paid the City these amounts to reimburse the cost of the

regional lift stations to service the sewer of those developments. Defendant is correct that Plaintiff

has failed to cite within his second affidavit any indication of where he has a basis for this

information or how he would be competent to testify within these matters. Given that, the Court

will SUSTAIN Defendant’s objection to ¶ 31 of Plaintiff’s Second Affidavit. Further, the Court

finds that based upon Mr. Cossey and Ms. Evan’s affidavits that Plaintiff has failed to show

reimbursements paid by the City to those similarly situated to Plaintiff with exception to race.

Plaintiff having failed to prove a prima facie case of racial discrimination against Defendant, the

Court will find in favor of Defendants for Count II. For the reasons stated, Defendant’s Motion for

Summary Judgment as to Count II – Racial Discrimination Pursuant to 42 U.S.C. § 1983

GRANTED.

CONCLUSION

For the foregoing reasons, Defendant’s Motion for Summary Judgment is GRANTED.

Summary Judgment is hereby entered in favor of Defendant regarding Count II – Racial

Discrimination Pursuant to 42 U.S.C. § 1981 and § 1983.

IT IS SO ORDERED.

DATED: October 14, 2025

/s/ Douglas Harpool

DOUGLAS HARPOOL

UNITED STATES DISTRICT JUDGE