govinfo:USCOURTS-mnd-0_25-cv-02245-1

1 
 
UNITED STATES DISTRICT COURT 
DISTRICT OF MINNESOTA 
 
 
Victoria McCartney; Shane McCartney; 
Guerrilla Entertainment LLC, 
d/b/a Midwest Drone Racing,  
 
   Plaintiffs,  
v.        MEMORAMDUM OF LAW & 
                  ORDER  
Civil File No. 25-02245 (MJD/DJF) 
City of 
Welcome; Welcome Historical Society,  
 
   Defendants. 
Elizabeth A. Nielsen, Erick G. Kaardal, Mohrman, Kaardal & Erickson, P.A., 
Counsel for Plaintiffs.  
 
Gregory E. Kuderer, Robert E. Kuderer, Erickson Zierke Kuderer & Madsen PA, 
Counsel for Defendant Welcome Historical Society.  
 
I. INTRODUCTION 
Before the Court is Defendant Welcome Historical Society (“WHS”)’s  
Motion to Dismiss. (Doc. 37.) For the reasons stated below, the Court grants 
WHS’s Motion to Dismiss.  
II. BACKGROUND  
The following facts are relevant to WHS’s motion to dismiss. The Court  
takes all facts alleged in the Amended Complaint as true. Zutz v. Nelson, 601 
F.3d 842, 848 (8th Cir. 2010).    
CASE 0:25-cv-02245-MJD-DJF     Doc. 50     Filed 06/10/26     Page 1 of 25
2 
 
A. Plaintiffs’ Relationship with the Welcome Historical Society 
Plaintiffs Shane and Victoria McCartney have resided in Welcome, a city in 
Martin County, Minnesota, for about five years.  (Doc. 4 ¶ 13.)  Soon after they 
moved to the area, Plaintiffs decided to participate in a partially-government-
sponsored program called “Going Hog Wild in Martin County,” which 
distributes “dozens of artistically painted cement pigs throughout the county as a 
promotion of Martin County.”  (Id. ¶¶ 14, 17-18.)  Martin County is the number 
one hog-producing county in Minnesota and the sixth-largest hog producer in 
the country.  (Id. ¶ 16.)  The “Going Hog Wild in Martin County” event is 
“dedicated to celebrating and enhancing the unique charm of our community by 
spotlighting local businesses, artists, and the vibrant pork community.” (Id. ¶ 
46.) Plaintiffs wanted to participate in the program to support the community 
and to promote their new Midwest Drone Racing business.  (Id. ¶ 15.)    
 To participate in the program, Plaintiffs offered a pig statue as a donation 
to WHS. (Id. ¶ 51.)  WHS is a section 501(c)(3) charitable organization in the City 
of Welcome that operates as a museum. (Id. ¶¶ 40–43). Plaintiffs volunteered for 
WHS in the past and joined as members in 2021. (Id. ¶¶ 36–37.) Plaintiffs 
specifically offered the pig statue to WHS to be placed at the museum entrance. 
(Id. ¶ 51.)  
CASE 0:25-cv-02245-MJD-DJF     Doc. 50     Filed 06/10/26     Page 2 of 25
3 
 
B. Plaintiffs’ Pig Statue Donation to the Welcome Historical Society 
Plaintiffs decided to donate a $2,400 pig statue to WHS. (Id. ¶ 19.) At the 
March 2022 WHS Board Meeting, Plaintiffs’ gift of a pig statue, to be located at 
the WHS Museum entrance, was unanimously accepted.  (Id. ¶ 52.)  Thereafter, 
Plaintiffs spent approximately $2,400 on a cement pig and custom-designed 
artwork for the pig that was to be located at the WHS museum entrance.  (Id. ¶¶ 
54-56, 70.)    
However, on May 19, 2022, one week before the scheduled public 
unveiling of the pig statues in Fairmont, Minnesota, Plaintiffs received an email 
from the WHS Clerk/Treasurer that stated the City of Welcome (“the City”) 
owned the building that the WHS Museum occupied, and that the Welcome City 
Council had met the previous night and decided that it did not want Plaintiffs’ 
pig placed at WHS.  (Id. ¶¶ 60–61.)  The WHS Clerk/Treasurer then informed 
Plaintiffs that they would have to find another location for their pig.  (Id.)    
Plaintiffs were “completely dumbfounded by this news” and noted that 
they had no idea the City of Welcome had anything to do with their pig statue 
donation. (Id. ¶¶ 66–67.) Plaintiffs met with the WHS president shortly after 
receiving the email, and the president stated the WHS “was not willing to ‘bite 
CASE 0:25-cv-02245-MJD-DJF     Doc. 50     Filed 06/10/26     Page 3 of 25
4 
 
the hand that feeds them’ since the City of Welcome owns the building WHS 
occupies, and the City of Welcome pays the utilities for WHS.”  (Id. ¶¶ 71–72.)   
Plaintiffs never believed they needed the City’s approval to place a pig at 
the WHS Museum because they had previously purchased and installed new 
front doors for the WHS, with a $1,000 donation from Plaintiff Victoria’s 
employer, without the City of Welcome’s approval.  (Id. ¶¶ 38, 81–82.)    
C. Plaintiffs’ Communications with WHS After WHS’s Rejection of the 
Pig Statue 
Following the conversation with WHS’s president, Plaintiffs sent a  
certified letter three separate times to WHS.  (Id. ¶ 74.) Plaintiffs did not provide 
the content of these three letters. However, Plaintiffs filed as an attachment the 
only response they received, which was from the Edman & Edman law firm 
hired by the City of Welcome and WHS. (Id. ¶ 75.) The letter, dated September 
16, 2022, indicated that the location of WHS is on City-owned property, and the 
City determined it does not want the pig at the location. (Doc. 4-4.) The letter also 
stated that the City of Welcome’s decision was “not negotiable, and not 
something that [WHS] can override.” (Id.) 
 Plaintiffs also stated that upon reviewing the Welcome City Council 
minutes from July 19, 2022, the City Council noted that “[Plaintiffs] can place his 
CASE 0:25-cv-02245-MJD-DJF     Doc. 50     Filed 06/10/26     Page 4 of 25
5 
 
pig in the City of Welcome, but not on City property.” (Doc. 4 ¶ 77 (quoting July 
19, 2022 City Council minutes).)  Plaintiffs were not notified of this meeting, were 
not in attendance, and did not know why this issue was discussed at the 
meeting. (Id. ¶¶ 77–79.) 
 Plaintiffs assert that they did not believe they needed the City’s approval 
to place a pig at WHS following WHS’s unanimous vote. (Id. ¶ 81.) Plaintiffs 
argue this was not their understanding, particularly because WHS had 1) 
replaced the museum doors, and 2) placed a bench at WHS to honor a WHS 
employee, both without City approval. (Id. ¶¶ 82–83.)  
 While not immediately clear from the pleadings, Plaintiffs’ pig was, in fact, 
on display at the “Going Hog Wild” unveiling event on May 26, 2022. (Doc. 49.) 
However, Plaintiffs’ counsel indicated that “on that day, Ziggy the pig was 
homeless and would not be placed at the WHS as agreed-to.” (Id.) 
Plaintiffs’ pig was also later displayed in Martin County, including outside 
the Loxley Coffee establishment, located in Fairmont. (Doc. 40-3.)   
D. Plaintiffs’ Claims  
Plaintiffs assert three claims against Defendant WHS. First, Plaintiffs assert  
that WHS and the City of Welcome violated their Procedural Due Process Rights 
(Count VII). (Doc. 4 ¶¶ 255–68.) Specifically, Plaintiffs assert that WHS had 
CASE 0:25-cv-02245-MJD-DJF     Doc. 50     Filed 06/10/26     Page 5 of 25
6 
 
agreed to accept the pig donation, and that when the City of Welcome alerted 
Plaintiffs that they would not accept the pig donation without a hearing or 
notice, Plaintiffs were deprived of their procedural due process rights. (Id. ¶¶  
256–63.) As part of this argument, Plaintiffs maintain that they had a property 
interest in the cement pig after WHS accepted the donation. (Id. ¶ 258.) Plaintiffs 
also state that they suffered nominal, general, and special damages as a result of 
this deprivation in the form of “lost income, reputational loss, emotional distress, 
shame and humiliation.” (Id. ¶ 267.)  
 Second, Plaintiffs assert that WHS breached their contract with Plaintiffs 
(Count VIII). (Id. ¶¶ 269–74.) To plead this claim, Plaintiffs argue that WHS 
agreed to accept the pig donation, Plaintiffs spent money purchasing/designing 
the pig, and WHS then breached by refusing to accept delivery of the pig. (Id. ¶¶ 
270–272.) Plaintiffs plead the same damages as in their procedural due process 
claim. (Id. ¶ 273.) 
 Third, Plaintiffs bring a claim for promissory estoppel (Count IX) against 
WHS. (Id. ¶¶ 275–80.) Plaintiffs assert that WHS promised to accept the pig 
donation from Plaintiffs, and Plaintiffs relied to their detriment on that promise 
by spending $2,400 out-of-pocket. (Id. ¶¶ 276–77.) Plaintiffs plead the same 
CASE 0:25-cv-02245-MJD-DJF     Doc. 50     Filed 06/10/26     Page 6 of 25
7 
 
damages as their procedural due process and breach of contract claims. (Id. ¶ 
279.)   
III. DISCUSSION 
Welcome Historical Society seeks to dismiss all three claims Plaintiff  
brought against it (Count VII, Count VIII, and Count IX).   
A. Rule 12(b)(6) Legal Standard for Motion to Dismiss  
Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a party may 
move the Court to dismiss a claim if, on the pleadings, a party has failed to state 
a claim upon which relief may be granted.  In reviewing a motion to dismiss, the 
Court takes all facts alleged in the complaint to be true.  Bell Atl. Corp v. 
Twombly, 550 U.S. 544, 555-56 (2007); Zutz, 601 F.3d at 848.  However,   
To survive a motion to dismiss, a complaint must contain sufficient 
factual matter, accepted as true, to state a claim to relief that is 
plausible on its face.  Thus, although a complaint need not include 
detailed factual allegations, a plaintiff’s obligation to provide the 
grounds of his entitlement to relief requires more than labels and 
conclusions, and a formulaic recitation of the elements of a cause of 
action will not do.  
Zutz, 601 F.3d at 848 (citations omitted); Ashcroft v. Iqbal, 556 U.S. 662, 678 
(2009) (“Threadbare recitals of the elements of a cause of action, supported by 
mere conclusory statements, do not suffice.”).  
CASE 0:25-cv-02245-MJD-DJF     Doc. 50     Filed 06/10/26     Page 7 of 25
8 
 
  “A claim has facial plausibility when the plaintiff pleads factual content 
that allows the court to draw the reasonable inference that the defendant is liable 
for the misconduct alleged.”  Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 
556).  Thus, the Court “need not accept as true a plaintiff’s conclusory allegations 
or legal conclusions drawn from the facts.”  Glick v. W. Power Sports, Inc., 944 
F.3d 714, 717 (8th Cir. 2019) (citation omitted).     
  Generally, when considering a motion to dismiss, a court must ignore 
materials outside of the pleadings.  Porous Media Corp. v. Pall Corp., 186 F.3d 
1077, 1079 (8th Cir. 1999).  However, the court may consider some materials that 
are 1) “part of the public record,” 2) “do not contradict the complaint,” or 3) are 
“necessarily embraced by the pleadings.”  Id. (quotations omitted) (citing 
Missouri ex rel. Nixon v. Coeur D’Alene Tribe, 164 F.3d 1102, 1107 (8th Cir.  
1999); Piper Jaffray Cos. v. Nat’l Union Fire Ins. Co., 967 F. Supp. 1148, 1152 (D.  
Minn. 1997)).  
B.  Procedural Due Process Claim (Count VII) 
In their Amended Complaint, Plaintiffs assert that WHS violated their 
Fourteenth Amendment Due Process rights by not providing them with a 
hearing prior to making a decision about the cement pig, which resulted in the 
loss of their property interest in the donation of the statue. (Doc. 4 ¶¶ 259–60.)  
CASE 0:25-cv-02245-MJD-DJF     Doc. 50     Filed 06/10/26     Page 8 of 25
9 
 
WHS argues in their motion to dismiss that 1) it is not a state actor and is 
therefore excluded from liability; 2) Plaintiffs did not have a property interest in 
having their pig displayed at WHS; 3) Plaintiffs were not owed any “process” 
from WHS; and 4) Plaintiffs were not deprived of any property interest. (Doc. 39 
at 13–24.) 
1. State Action Doctrine  
The Due Process Clause of the Fourteenth Amendment provides, in  
pertinent part, that no State shall “deprive any person of life, liberty, or property, 
without due process of law.” U.S. Const. amend. XIV. The Fourteenth 
Amendment’s protections extend only to state actions, not private conduct. See 
Jackson v. Metro. Edison Co., 419 U.S. 345, 350 (1974).  
 To determine if there is state action, the record must identify conduct that 
is “fairly attributable” to the state. Montano v. Hedgepeth, 120 F.3d 844, 848 (8th 
Cir. 1997) (quoting Lugar v. Edmondson Oil Co., 457 U.S. at 937). Whether a 
private entity may be appropriately characterized as a state actor is “a matter of 
normative judgment, and the criteria lack rigid simplicity.” Brentwood Acad. v. 
Tennessee Secondary Sch. Athletic Ass’n, 531 U.S. 288, 295 (2001). Still, the Court 
has identified certain circumstances where private conduct is “fairly attributable 
CASE 0:25-cv-02245-MJD-DJF     Doc. 50     Filed 06/10/26     Page 9 of 25
10 
 
to the state,” such as when there is such a “‘close nexus between the State and the 
challenged action” that seemingly private behavior ‘may be fairly treated as that 
of the State itself.’” Id. (citing Jackson, 419 U.S. at 351).  
Plaintiffs argue a close nexus existed between WHS and the City under 
three theories: 1) coercive control; 2) pervasive entwinement; and 3) symbiotic 
relationship. (Doc. 43 at 10–14.) None of Plaintiffs’ state action theories persuade 
the Court.  
a. Coercive Control  
A challenged activity may be state action when it results from the State’s 
exercise of “coercive power,” meaning when a State demonstrates “significant 
encouragement, either overt or covert” over a private entity. Brentwood Acad., 
531 U.S. at 296 (citing Blum v. Yaretsky, 457 U.S. 991, 1004 (1982)). Plaintiffs 
argue that the City exercised “coercive control” over WHS by prohibiting 
placement of the pig at WHS despite WHS’s previous acceptance of the pig. 
(Doc. 43 at 11–12.) WHS maintains, however, that Plaintiffs alleged no facts to 
suggest that the City coerced WHS into declining the pig statue (e.g., the City did 
not threaten to evict them, did not threaten to cut off utilities, etc.). (Doc. 44 at 5.)  
CASE 0:25-cv-02245-MJD-DJF     Doc. 50     Filed 06/10/26     Page 10 of 25
11 
 
As an initial matter, while not directly addressed in Eighth Circuit case 
law, the coercive control theory appears mostly as a mechanism to hold the state 
accountable for private actions, not the other way around. See Flagg Bros. v. 
Brooks, 436 U.S. 149, 164 (1978) (“Our cases state ‘that a State is responsible for 
the . . . act of a private party when the State, by its law, has compelled the act.’”) 
(citing Adickes v. S. H. Kress & Co., 398 U.S. 144, 170 (1970)); see also Blum, 457 
U.S. at 1004 (holding that “a State normally can be held responsible for a private 
decision only when it has exercised coercive power or has provided such 
significant encouragement, either overt or covert, that the choice must in law be 
deemed to be that of the State”) (emphasis added). 
In any event, the level of coercion required to find coercion that amounts 
to state action is substantial. The Supreme Court has indicated that to state a 
claim that the government violated the Constitution through coercion of a third 
party, a plaintiff must allege conduct that “could be reasonably understood to 
convey a threat of adverse government action.” Nat’l Rifle Ass’n of Am. v. Vullo, 
602 U.S. 175, 191 (2024). For instance, in U.S. v. Stein, the Second Circuit found 
that the actions of an accounting firm amounted to state action under a coercion 
theory. 541 F.3d 130 (2d Cir. 2008). In Stein, an accounting firm adopted a 
CASE 0:25-cv-02245-MJD-DJF     Doc. 50     Filed 06/10/26     Page 11 of 25
12 
 
Department of Justice policy regarding the payment of legal fees. Id. at 147.  The 
Stein court found that the government had put significant pressure on the 
accounting firm to adopt the policy, indicating that “[the firm’s] survival 
depended on its role in a joint project with the government to advance 
government prosecutions.” Id. The government also assisted in the enforcement 
of the accounting firm’s policy, intervened in the firm’s decision making, and 
supervised individual cases, to the point where “prosecutors became ‘entwined 
in the control . . .’ of the [firm].” Id. at 148 (citing Flagg, 396 F.3d at 187).  
By contrast, in Blum, the Supreme Court rejected a coercion theory of state 
action despite extensive state regulation. See 457 U.S. 991. In Blum, a class of 
Medicaid patients attempted to challenge the transfer/discharge decisions of 
private nursing homes. Id. at 994–98. The patients sought to attribute the actions 
to New York state, pointing to state regulations that encouraged certain transfer 
decisions and imposed penalties on nursing homes that failed to abide by the 
transfer/discharge regulations. Id. at 1007–09. The Court emphasized that state 
regulation, even with penalties attached, does not necessarily establish the 
required coercion to attribute private conduct to the state. Id. at 1010–11.  
CASE 0:25-cv-02245-MJD-DJF     Doc. 50     Filed 06/10/26     Page 12 of 25
13 
 
There is no evidence in the record that the City coerced WHS into rejecting 
Plaintiffs’ pig. Plaintiffs’ theory appears to rest not on threats or penalties, but on 
the City’s instruction that WHS could not display the pig on City-owned 
property. However, the relevant inquiry for coercion focuses on a “threat of 
adverse government action,” as opposed to mere government 
regulation/instruction, of which, Plaintiffs allege no facts. For instance, Plaintiffs 
do not allege that WHS faced any potential consequence for noncompliance: 
Plaintiffs do not indicate that the City threatened WHS with eviction, termination 
of its lease, loss of utilities, or any other adverse government action if it 
displayed the pig.  
Instead, Plaintiffs’ argument appears largely to rely on WHS’s statement 
that it did not want to “bite the hand” that feeds it. (Doc. 43 at 11–12.) Such a 
statement may indicate a fear of consequence for noncompliance, but one of 
WHS’s own making. Plaintiffs even later concede that “nothing in the pleadings 
supports that the City would actually turn against WHS had WHS allowed the 
pig delivery and display to happen as planned.” (Doc. 43 at 19.)  
CASE 0:25-cv-02245-MJD-DJF     Doc. 50     Filed 06/10/26     Page 13 of 25
14 
 
Absent any plausible allegation of threatened adverse consequence, the 
Court concludes that the City’s conduct cannot be understood as coercive so as to 
support a finding of state action.  
b. Pervasive Entwinement 
 A private party may be characterized as a state actor where there is 
“pervasive entwinement”1 between the private entity and the state. See 
Wickersham v. City of Columbia, 481 F.3d 591, 597 (8th Cir. 2007). Although no 
single factor is dispositive, “pervasive entwinement,” exists where the 
government is significantly entwined with the management or control of the 
private entity. See Brentwood Acad. , 531 U.S. at 296 (citing Evans v. Newton, 
382 U.S. 296, 299 (1966)); see also Americans United for Separation of Church & 
State v. Prison Fellowship Ministries, Inc., 509 F.3d 406, 421 (8th Cir. 2007) 
 
1 The “pervasive entwinement” test is sometimes referred to as the “joint action” 
test. See Wickersham, 481 F.3d at 598–99 (applying joint action and entwinement 
Supreme Court cases in the same analysis); see also Loe v. Jett, 796 F. Supp. 3d 
541, 562–65 (D. Minn. 2025) (referring to “joint-action/entwinement” test to 
analyze alleged state action). The actual distinction between tests is not what is 
important; instead, what matters is that there “be a close nexus not merely 
between the state and the private party, but between the state and the alleged 
deprivation itself.” Meier v. City of St. Louis, 934 F.3d 824, 829 (8th Cir. 2019) 
(quoting Wickersham v. City of Columbia, 481 F.3d 591, 597 (8th Cir. 2007) 
(cleaned up)). The tests themselves merely provide factual comparisons to reach 
such conclusion.  
CASE 0:25-cv-02245-MJD-DJF     Doc. 50     Filed 06/10/26     Page 14 of 25
15 
 
(holding that “[i]n certain circumstances the government may become so 
entangled in private conduct that ‘the deed of an ostensibly private organization 
or individual is to be treated . . . as if a State had caused it to be performed”) 
(quoting Wickersham, 481 F.3d at 597). But “mere regulation” as “a precondition 
for the receipt of public funds . . . does not convert a private organization's 
actions into state action . . . ‘even if the regulation is extensive and detailed.’” 
Sabri v. Whittier All., 833 F.3d 995, 1000 (8th Cir. 2016) (quoting Rendell–Baker v. 
Kohn, 457 U.S. 830, 841 (1982)) (cleaned up). 
Plaintiffs argue that the “City’s authority over WHS operations and 
displays” demonstrates such entwinement. (Doc. 43 at 12.) WHS disputes this 
characterization, maintaining that there is no contractual relationship between 
WHS and the City, no joint planning/coordinating between the two entities, and 
no day-to-day oversight by the City. (Doc. 44 at 7.) 
 Governing precedent supports WHS’s position. For instance, i n Brentwood 
Acad., the Supreme Court examined whether a high school interscholastic 
athletic association was sufficiently intertwined with public institutions and 
public officials so as to make it a “state actor.” See 531 U.S. at 290. The Court 
determined that the association was, in fact, a state actor because 84% of the 
CASE 0:25-cv-02245-MJD-DJF     Doc. 50     Filed 06/10/26     Page 15 of 25
16 
 
association’s membership was constituted of public schools and school 
faculty/administrators made up the association’s leadership. Id. at 299–300.  
 Along a similar vein, the Eighth Circuit found state action in Wickersham 
where a nonprofit corporation, Salute, worked closely with the City of Columbia 
to host a Veterans Day airshow at the city-owned airport. See 481 F.3d at 593–94. 
In Wickersham, the City of Columbia provided police officers as security for the 
event, which included prohibiting protesters from demonstrating at the airshow. 
Id. at 594. Police arrested two demonstrators, who sued Salute and the City of 
Columbia on First Amendment grounds. Id. at 595.  
 The Eighth Circuit determined that Salute was acting as a state actor when 
it interfered with the demonstrators. Id. at 599. Specifically, the Court noted that 
the City’s involvement with Salute went far beyond “mere acquiescence”: the 
City played an active role in enforcing the speech regulations and provided 
substantial assistance in planning the airshow in the first place. Id. at 598–99.  
Therefore, Salute and the City of Columbia were “knowingly and pervasively 
entangled in the enforcement of the challenged speech restrictions.” Id. at 599.  
 The circumstances here differ significantly from the circumstances in the 
precedent cases. Plaintiffs do not plead facts showing that the City is involved in 
CASE 0:25-cv-02245-MJD-DJF     Doc. 50     Filed 06/10/26     Page 16 of 25
17 
 
WHS’s management or control. There is no indication that City officials serve on 
WHS’s board, that the City participates in WHS’s day-to-day operations, or that 
the parties jointly plan or coordinate activities. Absent such allegations, the level 
of integration between the two entities is not plausibly established.  
 Further still, the landlord/tenant relationship is not likely enough on its 
own to establish the kind of significant entanglement required for the state action 
doctrine. In Lubin v. Crittenden Hosp. Ass’n, the Eighth Circuit considered 
whether a private hospital’s disciplinary action against an employee could 
constitute state action under § 1983. 713 F.2d 414, 415 (8th Cir. 1983). Crittenden 
Hospital operated as a private non-profit entity organized under the laws of 
Arkansas and was located on county land in a building owned by the county. Id. 
The Eighth Circuit noted that public ownership of the property “[was] not 
significant” at least because the lease afforded “full and complete charge of the 
management and operation” to the hospital. Id. at 416.  
 Here, the facts as pled do not indicate that any special landlord/tenant 
relationship exists between WHS and the City. While Plaintiffs’ counsel indicated 
in oral argument that “no lease agreement has been . . . produced,” Plaintiffs’ 
own allegations still suggest even less entwinement than was present in Lubin. 
CASE 0:25-cv-02245-MJD-DJF     Doc. 50     Filed 06/10/26     Page 17 of 25
18 
 
Plaintiffs concede that that “WHS purchased and installed the doors without the 
landlord City’s approval.” (Doc. 4 ¶ 38.) Such an undertaking only further cuts 
against Plaintiffs’ argument because it indicates a complete lack of day-to-day 
management from the City over WHS and its use of the property.  
c. Symbiotic Relationship  
 Finally, a “symbiotic relationship”2 between a State and a private entity 
justifies a finding of state action. See Burton v. Wilmington Parking Auth., 365 
U.S. 715 (1961). The “symbiotic relationship” test asks whether the state is so 
significantly involved with the activities of a private entity that the private 
entity’s conduct can be attributed to the government itself. See Gilbreath v. E. 
Ark. Plan. & Dev. Dist., Inc., 471 F. Supp. 912, 922 (E.D. Ark. 1979). Plaintiffs 
acknowledge that their symbiotic relationship argument is “closely related” to 
their entwinement theory, once again pointing to the City’s “control of [WHS’s] 
 
2 Like the “pervasive entwinement” test, the “symbiotic relationship” discussed 
in Burton has been referred to as the “joint participation test.” American Mfrs. 
Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 57 (1999) (“Burton was one of our early 
cases dealing with “state action” under the Fourteenth Amendment, and later 
cases have refined the vague “joint participation” test embodied in that case.”). 
The blurred lines between the tests themselves merely reinforce that no one 
theory/test is dispositive; state action is a “necessarily fact-bound” analysis. See 
Lugar, 457 U.S. at 939.  
CASE 0:25-cv-02245-MJD-DJF     Doc. 50     Filed 06/10/26     Page 18 of 25
19 
 
display” and arguing that the City pays WHS’s utilities. (Doc. 43 at 12–13.) WHS 
disputes these allegations, stating that “there is nothing suggesting the City [] 
funded construction, repairs, or interior improvements for WHS.” (Doc. 44 at 9.)  
 The Supreme Court first announced the “symbiotic relationship” test in 
Burton v. Wilmington Parking Auth., in response to a parking authority that 
leased space to a private restaurant. 365 U.S. at 718. The restaurant denied 
service to a customer because of that person’s race. Id. at 716. In concluding that 
there was a “symbiotic relationship” between the city and the restaurant, the 
Court emphasized the mutually beneficial relationship between the government 
and the restaurant: the government benefitted from the revenue of the restaurant 
and the government, in turn, had “elected to place its power, property, and 
prestige behind the admitted discrimination.” Id. at 724–25. The decision rested 
on the degree of mutual benefit between the two entities, emphasizing the 
financial benefit and the state’s implicit endorsement of the challenged conduct. 
 Subsequent decisions of the Supreme Court and Eighth Circuit have 
narrowed Burton’s reach. The Eighth Circuit has indicated that Burton’s 
symbiotic relationship test is “limited generally to cases involving racial 
discrimination.” See Lubin, 713 F.2d at 416. Moreover, since Burton was decided, 
CASE 0:25-cv-02245-MJD-DJF     Doc. 50     Filed 06/10/26     Page 19 of 25
20 
 
“the Supreme Court has retreated . . . from its holding.” See Sabri v. Whittier All., 
122 F. Supp. 3d 829, 839 (D. Minn. 2015), aff’d, 833 F.3d 995 (8th Cir. 2016). The 
Supreme Court has clarified that Burton was an early, expansive theory of state 
action that has since been refined: 
Burton was one of our early cases dealing with “state action” under the 
Fourteenth Amendment, and later cases have refined the vague “joint 
participation” test embodied in that case. Blum and Jackson, in particular, 
have established that privately owned enterprises providing services that 
the State would not necessarily provide, even though they are extensively 
regulated, do not fall within the ambit of Burton. 
 
American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 57 (1999) (internal citations 
omitted) (emphasis added).  
This clarification of the “symbiotic relationship” doctrine is particularly 
relevant here. WHS is a charitable organization that operates a museum 
celebrating the history of the City of Welcome. (Doc. 39 at 5.) WHS is not a public 
entity providing services that are traditionally governmental in nature. Further, 
running a small city historical society is not even an “extensively regulated 
service.”  
 Even assuming the Burton  symbiotic relationship test for state action is 
fully intact, Plaintiffs cannot prevail. There are no allegations of a mutually 
beneficial relationship between the City and WHS beyond the traditional 
CASE 0:25-cv-02245-MJD-DJF     Doc. 50     Filed 06/10/26     Page 20 of 25
21 
 
landlord-tenant arrangement. At most, Plaintiffs allege that WHS operates on 
City-owned property and may receive incidental benefits such as utilities. But 
without more, the facts do not establish the kind of “symbiotic relationship” 
contemplated in Burton. 
In sum, across the various state-action frameworks that Plaintiffs allege– 
coercion, entwinement, and symbiotic relationships – Plaintiffs fail to plausibly 
plead facts showing that the City meaningfully controlled, compelled, or was 
responsible for WHS’s decision. At most, the allegations indicate that the City, 
acting as a property owner, placed a limitation on the use of its property, and 
that WHS complied with that limitation of its own free will. Under binding 
precedent, such circumstances are insufficient to transform a private entity’s 
conduct into state action. 
2. State Action Doctrine at the Motion to Dismiss Stage 
It is worth noting that the Court, on its own initiative, has identified some 
cases in the District of Minnesota in which the court has stated that determining 
whether parties are state actors is not appropriate at the motion to dismiss stage. 
See Roe v. N. Homes, Inc., No. CV 18-3428 (PAM/LIB), 2019 WL 2296876, at *2 
(D. Minn. May 30, 2019) (“[W]hether Defendants were state actors is 
CASE 0:25-cv-02245-MJD-DJF     Doc. 50     Filed 06/10/26     Page 21 of 25
22 
 
inappropriate for resolution on a motion to dismiss.”); Loe v. Jett, No. 23-CV-
1537) (NEB/JFD) (D. Minn. March 18, 2024) (“The Court declines to resolve this 
fact-
intensive issue on a motion to dismiss because the parties have not yet had 
an opportunity to develop the factual record through discovery.”). As these 
decisions point out, the reason for declining to dismiss the action at this stage is 
because such determination is a “necessarily fact-bound inquiry.” See Lugar, 457 
U.S. at 939.   
However, dismissing a claim based on a lack of state action is not always 
disfavored. In Magee v. Trs. of the Hamline Univ, Judge Tunheim adopted a 
report and recommendation, recommending dismissal of claims brought by a 
law professor at Hamline University School of Law against the dean and a St. 
Paul police officer. 957 F. Supp. 2d 1047, 1053 (D. Minn. 2013). The Court 
determined at the motion to dismiss stage that the Hamline defendants and 
police officers were not “state actors.” See id. at 1059 (“[the Plaintiff’s] proposed 
amended complaint does not contain sufficient factual allegations to state a § 
1983 claim against [police officer], because he was not acting under color of state 
law at the time of the alleged constitutional violations.”). This decision was later 
affirmed by the Eighth Circuit. See Magee v. Trs. of Hamline Univ., 747 F.3d 532, 
CASE 0:25-cv-02245-MJD-DJF     Doc. 50     Filed 06/10/26     Page 22 of 25
23 
 
535 (8th Cir. 2014) (stating that the plaintiff failed to plausibly plead sufficient 
facts that the university officials or police officer were state actors).  
 Further, neither party even argued that it is inappropriate for the Court to 
consider whether WHS is a state actor at this stage. The closest Plaintiffs’ counsel 
came to making this argument was pointing out during oral argument that the 
parties are “in the middle of discovery” and that no lease agreement had been 
produced, although such comments were not tied to an argument about whether 
the Court could presently consider the question. Instead, the parties spend a 
combined 13 pages of briefing on the state action doctrine question alone.  
Therefore, because this analysis is not necessarily precluded at this stage, 
the parties briefed the issue, and no party argued otherwise, the Court concludes 
it is appropriate to review the state action doctrine question under these 
circumstances and considers any argument to the contrary waived.  
Accordingly, because the Fourteenth Amendment’s due process 
protections can only be violated by conduct fairly characterized as “state action,” 
not private conduct, and Plaintiffs failed to plausibly plead that WHS is a state 
actor, Plaintiffs’ Procedural Due Process claim (Count VII) must be dismissed. 
  
CASE 0:25-cv-02245-MJD-DJF     Doc. 50     Filed 06/10/26     Page 23 of 25
24 
 
C. Breach of Contract Claim (Count VIII) and Promissory Estoppel 
Claim (Count IX) 
Plaintiffs also raised both a state law breach of contract claim and 
a state law promissory estoppel claim against WHS. (Doc. 4 ¶¶ 269–280.) While 
WHS argues that these claims should similarly be dismissed, the Court need not 
address these arguments at all.  
 Under 28 U.S.C. § 1367(c)(3), the Court may decline to exercise 
supplemental jurisdiction over a state law claim if the district court has 
“dismissed all claims over which it has original jurisdiction.” See, 601 F.3d 842, 
850 (8th Cir. 2010). In such circumstance, the Court’s discretion to decline to 
exercise supplemental jurisdiction “is very broad.” Brown v. Mortg. Elec. 
Registration Sys., Inc., 738 F.3d 926, 933 (8th Cir. 2013). In considering dismissal 
of state law claims, the district court is instructed to consider “factors such as 
judicial economy, convenience, fairness, and comity.” Id.  
 Here, it is in the interest of the parties for a Minnesota state court to 
resolve state claims involving Minnesota parties. See, e.g., Elmore v. Harbor 
Freight Tools USA, Inc., 844 F.3d 764, 767 (8th Cir. 2016) (affirming district 
court’s dismissal of state law claims after determining that “a Missouri state 
court should resolve state claims involving Missouri residents and that it would 
CASE 0:25-cv-02245-MJD-DJF     Doc. 50     Filed 06/10/26     Page 24 of 25
25 
 
be more fair and convenient to allow a Missouri state court to hear these 
claims.”).  
 Accordingly, the Court declines to consider Plaintiffs’ state law claims for 
breach of contract (Count VIII) and promissory estoppel (Count IX) against 
WHS.  
IV. ORDER  
Based on the foregoing reasons, as well as the files, records, and  
proceedings herein, IT IS HEREBY ORDERED: 
1. Defendant Welcome Historical Society’s Motion to Dismiss [Doc. 37] 
is GRANTED; and  
 
2. Claims VII, VIII, and IX of the Amended Complaint are 
DISMISSED with prejudice. 
 
 LET JUDGMENT BE ENTERED ACCORDINGLY. 
 
Dated:   June 10, 2026    s/Michael J. Davis      
      Michael J. Davis  
      United States District Court  
 
 
 
 
CASE 0:25-cv-02245-MJD-DJF     Doc. 50     Filed 06/10/26     Page 25 of 25

Passage view · GavelSight