2302 N. Truman Entertainment Mgmt., LLC, v. City of Pevely, Missouri, et al

Filing 32

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that the City of Pevelys Motion to Remand, Doc. No. 15], is DENIED. 15 Signed by Honorable Henry E. Autrey on 3/27/12. (CLA)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
2302 N. TRUMAN ENTERTAINMENT )
MGMT., LLC, d/b/a
)
Pure Pleasure Boutique
)
)
Plaintiff,
)
)
vs.
)
)
CITY OF PEVELY, MISSOURI,
)
A Municipal Corporation,
)
)
Defendants.
)

Case No. 4:11CV171 HEA

MEMORANDUM AND ORDER
This matter is before the Court on the City of Pevely’s Motion to Remand,
[Doc. No. 15]. For the reasons set forth below, the Motion is denied.
Plaintiff in Cause Number 4:11CV171HEA, 2302 N. Truman
Entertainment, MGMT., LLC, filed its action against Defendant, City of Pevely,
Missouri, on January 25, 2011, pursuant to 28 U.S.C. § 1983 alleging that the City
violated it’s rights under the First and Fourteenth Amendments to the United
States Constitution. In a nutshell, Plaintiff, 2302 N. Truman alleged that the
City’s failure to issue a business license to Plaintiff for its “Pure Pleasure
Boutique” violated it’s constitutional rights of free speech and due process.
Subsequently, Defendant filed an action for injunctive relief in the Circuit
Court of Jefferson County, Missouri, seeking to enjoin 2302 N. Truman from

operating its “adult oriented business” without a business license, in violation of
the Municipal Code and Code of Ordinances of the City of Pevely. The City of
Pevely would not issue 2302 N. Truman a business license because it contends the
business violates the Municipal Code and Code of Ordinances of the City of
Pevely.
The Court consolidated these actions on April 14, 2011, and ordered all
pleadings to be filed in 2302 N. Truman’s case against the City of Pevely. The
City now moves to remand its action to the Circuit Court for Jefferson County,
Missouri.
The City argues that its action is based solely on Missouri State law, that
there are no issues of federal law, and therefore, the Court is without jurisdiction
to hear the matter. Pevely argues that “this case is about whether or not plaintiff
may, pursuant to the constructs and holding of the Supreme Court’s decision in
Cty of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 106 S.Ct 925, 89 L.Ed.2d
29 (1986), limit by way of zoning the secondary effects of the sale at retail of
sexually oriented material.” Defendant argues that pursuant to City of Renton, it is
within its bounds to enact ordinances which limit the locations of sexually
oriented businesses, and therefore, the matter fails to raise a federal question.
Moreover, Defendant argues that even if there is “arguably” a federal question of

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constitutional rights, the Pevely ordinances and Missouri statutes pass
constitutional muster.
Defendant’s argument, however, fails to recognize that City of Renton was
in fact brought in the federal court challenging the constitutionality of the City of
Renton’s ordinances. Realistically, Defendant’s argument goes to the merits of the
underlying issues rather than to whether the Court has jurisdiction to adjudicate
the claims herein.
Additionally, it appears as if Defendant is challenging the Court’s
jurisdiction in the initial action brought by 2302 N. Truman, even though it is
filed with regard to its action against 2302 N. Truman. As clearly set out in
Plaintiff’s Notice of Removal of Defendant’s later filed action, the Court’s
jurisdiction in Cause Number 4:11CV488HEA is premised on the Court’s
diversity of citizenship jurisdiction, pursuant to 28 U.S.C. § 1332. Defendant
completely fails to discuss the Court’s diversity of citizenship jurisdiction.
The Court has jurisdiction both over Plaintiff’s constitutional challenges
and Defendant’s action against Plaintiffs by reason of the parties’ diverse
citizenship. There is, therefore, no basis upon which the Court can, and should
remand Defendant’s action to the Circuit Court of Jefferson County.
Accordingly,

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IT IS HEREBY ORDERED that the City of Pevely’s Motion to Remand,
Doc. No. 15], is DENIED.
Dated this 27th day of March, 2012.

HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

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