Young v. Heineman et al
MEMORANDUM AND ORDER that Plaintiff's motion for summary judgment, Filing No. 153, is denied, and her motion for hearing, Filing No. 156, is likewise denied; Defendant's motion for summary judgment, Filing No. 151, is granted. A separate judgment will be entered in accordance with this memorandum and order. Ordered by Senior Judge Joseph F. Bataillon. (ADB)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
LESLIE RAE YOUNG,
MEMORANDUM AND ORDER
PETE RICKETTS, Governor of the State of
Nebraska, in his official capacity; DOUG
PETERSON, Attorney General of
Nebraska, in his official capacity; JOHN A.
GALE, Secretary of State & Chairperson of
the Nebraska Real Estate Commission, in
their official capacities; GREG LEMON,
Director of the Nebraska Real Estate
Commission, in their official capacities; AL
AVERY, in their official capacities as
members of the Nebraska Real Estate
Commission; DREW STANGE, in their
official capacities as members of the
Nebraska Real Estate Commission;
VINCENT LEISEY, in their official
capacities as members of the Nebraska
Real Estate Commission; ROBERT
DOVER, in their official capacities as
members of the Nebraska Real Estate
Commission; KATHRYN ROUCH, in their
official capacities as members of the
Nebraska Real Estate Commission; and
DAVID PTAK, in their official capacities as
members of the Nebraska Real Estate
This matter is before the Court on defendants’ motion for summary judgment,
Filing No. 151, and plaintiff’s motion for summary judgment and request for hearing,
Filing No. 153 and Filing No. 156. The Parties have agreed that this case can be
submitted for final judgment, based on the summary judgment motions, the pleadings
and the supporting evidence. See Filing No. 168. Plaintiff filed this lawsuit alleging her
First and Fourteenth Amendment rights are violated by the licensing requirements of
Neb. Rev. Stat. § 81-885.01(2) and 299 Neb. Admin Code § 2-004.1 The court is only
asked to address the constitutionality of the statute in question and to find prospective
injunctive relief in this case.
This case involves a challenge to recent amendments to the Nebraska Real
Estate License Act, Neb. Rev. Stat. § 81-885 (2010) (“the Act”) under 42 U.S.C. § 1983.
Plaintiff says the Act violates her Free Speech, Due Process, Equal Protection, and
Privileges or Immunities Clause rights under the First and the Fourteenth Amendments
of the United States Constitution. See Filing No. 91, First Amended Complaint.
Defendants Pete Ricketts in his official capacity as the Governor of Nebraska; Doug
Peterson, in his official capacity as the Attorney General of Nebraska; John Gale, in his
official capacity as Chairperson of the Nebraska Real Estate Commission; Greg Lemon,
Director of the Nebraska Real Estate Commission, in his official capacity; Al Avery,
Drew Strange, Vincent Leisey, Robert Dover, Kathryn Rouch, and David Ptak, in their
official capacities as members of the Nebraska Real Estate Commission (hereafter
collectively “the defendants”), move for summary judgment pursuant to Fed. R. Civ. P.
The court made the following factual summary in its preliminary order on the
request for injunction, and the facts are not substantially different for purposes of this
This section states: “A broker shall not advertise to sell, buy, exchange, rent, or lease real
property in a manner indicating that the offer to sell, buy, exchange, rent, or lease such real property is
being made by a private party not engaged in the real estate business, and no advertisement shall be
inserted in any publication where only a post office box number, telephone number, or street address
The evidence shows that the plaintiff has posted Nebraska listings on
Awww.realtor.com@ which advertises itself as the Official Site of the National
Association of REALTORS, and on www.forsalebyowner.com. See Filing No. 30
at pp. 3-56. Affidavit of Greg Lemon (“Lemon Aff.”), Exhibit (Ex.) 1, Exs. A & B.
The plaintiff is licensed as a real estate broker in California, but not in Nebraska.
See Filing No. 12-1, Index of Evid., Ex. 1, Declaration of Leslie Ray Young
(“Young Decl.”). She owns and operates the Internet website, “www.elist.me.” Id.
A Nebraska State Real Estate Commission investigation showed Young was
listing Nebraska properties for sale via that website. Filing No. 30, Lemon Aff. at
3-4, and attachments. Such listings stated “Presented by Leslie Young” and
contained hyperlinks that allowed the user to e-mail the agent, visit the agent’s
website and view the agent’s other listings. Id. at 1-2. Realtor.com’s Internet site
contains certain template language that appears on each advertisement (for
example: “email agent,” “agent’s other listings,” “this listing brokered by”) that
cannot be altered by the plaintiff. Filing No. 31 at p.3, Supplemental Decl. of
Leslie Rae Young. The information about the plaintiff that is included with the
advertisement of a home on Realtor.com is obtained by Realtor.com from the
data entered into a multi-state listing service (“MLS”) of which the plaintiff is a
member. Id.. At or near the time of the hearing, the plaintiff had 14 Nebraska
clients. Filing No. 36 at p.1, Supplemental Decl. of Leslie Rae Young. The
plaintiff contracts with Nebraska residents to list their homes and receives
remuneration for doing so. Id. at 1-2.
On March 11, 2010, and July 20, 2010, the Nebraska Real Estate Commission
issued cease and desist orders and sent them to Young. Filing No. 30 at p.3,
Lemon Aff.; Exs. A & B. The cease and desist orders specifically refer to
advertising for sale of real property located in the state of Nebraska. Id. They
also advise the plaintiff that the order would become final in ten days unless she
requested a hearing before the Commission, and referred to a civil fine of
$1,000.00 per day. Id.
The challenged amendment to the Nebraska Real Estate Licensing Act added
language indicating that committing any of the acts listed in the statute under the
Act’s definition of broker would constitute sufficient contact with the state to
confer personal jurisdiction…. She also contends that the only remedy available
to a person who receives the cease-and-desist order is to request an
administrative hearing, which does not allow or provide relief based on a
constitutional challenge to the statute, and consequently forego constitutional
protections and waive personal jurisdiction challenges.
Memorandum and Order, Filing No. 55, at 2-4.
Plaintiff is a resident of Volcano, California…. The plaintiff’s listings include
pictures and descriptions of various Nebraska properties, and plaintiff is listed as
an “advertising broker” and as a “listing broker.”
Plaintiff agrees that she assists persons who wish to sell their properties on a “for
sale by owner” basis without using a real estate agent. She assists with
preparation of advertisements and puts these ads in a computer program which
sends the ads to the Internet websites that publish them. She argues she does
not negotiate prices, show homes, counsel the buyers or sellers, or interact with
the homebuyers directly. She does not receive a commission for the sale. She is
paid a flat fee for her advertising services, regardless of whether a home sells or
In this lawsuit, plaintiff requests prospective relief only. She does not ask this
court to address any of the previously decided issues but only to stop the
prosecution of her under the Nebraska statute. She argues this is a prior restraint
and is a content-based restriction on her free speech rights and the law subjects
her to civil and criminal penalties. Further, she alleges that her equal protection
rights are violated, as she is unable to engage in Internet advertising, but
newspapers, radio and television advertisers, publishing “for sale by owner”
advertisements, are permitted to do so. Finally, she contends this violates the
privileges and immunities clause by barring her from engaging in her chosen
Filing No. 102, at 3-4, Memorandum and Order.
The plaintiff initially filed a motion for a temporary restraining order. Filing No. 7.
The Court granted the motion, and the Court later granted an amended temporary
restraining order and second amended restraining order. Filing No. 23, Filing No. 33
and Filing No. 37. Subsequently, the Court issued a memorandum and order denying
plaintiff’s motion for a preliminary injunction and dissolved the temporary restraining
order. Filing No. 55. Defendant then filed a motion to dismiss, Filing No. 94, which this
Court denied, finding that it would abstain from deciding the case until such time as the
state action was completed.
Filing No. 102. The plaintiff thereafter moved to lift the
stay. The Court lifted the stay finding that the State of Nebraska had fully addressed it
at that point. Filing No. 110. Defendants then moved to dismiss again, Filing No. 112,
and this Court denied the same. Filing No. 118.
STANDARD OF REVIEW
Summary judgment is appropriate when, viewing the facts and inferences in the
light most favorable to the nonmoving party, “the pleadings, the discovery and
disclosure materials on file, and any affidavits show that there is no genuine issue as to
any material fact and that the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(c). The plain language of Rule 56(c) mandates the entry of summary
judgment, after adequate time for discovery and upon motion, against a party who fails
to make a showing sufficient to establish the existence of an element essential to that
party’s case, and on which that party will bear the burden of proof at trial. Celotex Corp.
v. Catrett, 477 U.S. 317, 322 (1986). “The movant ‘bears the initial responsibility of
informing the district court of the basis for its motion, and must identify ‘those portions of
[the record] …. which it believes demonstrate the absence of a genuine issue of
material fact.’” Torgerson v. City of Rochester, 643 F.3d 1031, 1042, (8th Cir. 2011) (en
banc) (quoting Celotex, 477 U.S. at 323). If the movant does so, “the nonmovant must
respond by submitting evidentiary materials that set out ‘specific facts showing that
there is a genuine issue for trial.’” Id. (quoting Celotex, 477 U.S. at 324). “The inquiry
performed is the threshold inquiry of determining whether there is the need for a trial—
whether, in other words, there are any genuine factual issues that properly can be
resolved only by a finder of fact because they may reasonably be resolved in favor of
either party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). A “genuine”
issue of material fact exists when “there is sufficient evidence favoring the nonmoving
party for a jury to return a verdict for that party.” Id. at 251-52 (1986) (noting the inquiry
is whether the evidence presents a sufficient disagreement to require submission to a
jury or whether it is so one-sided that one party must prevail as a matter of law). If
“reasonable minds could differ as to the import of the evidence,” summary judgment
should not be granted. Id. at 251.
The evidence must be viewed in the light most favorable to the nonmoving party,
giving the nonmoving party the benefit of all reasonable inferences. Kenney v. Swift
Transp., Inc., 347 F.3d 1041, 1044 (8th Cir. 2003). “In ruling on a motion for summary
judgment, a court must not weigh evidence or make credibility determinations.” Id.
“Where the unresolved issues are primarily legal rather than factual, summary judgment
is particularly appropriate.” Koehn v. Indian Hills Cmty. Coll., 371 F.3d 394, 396 (8th
A filing of cross-motions for summary judgment does not “necessarily indicate
that there is no dispute as to a material fact, or have the effect of submitting the cause
to a plenary determination on the merits.” Wermager v. Cormorant Twp. Bd., 716 F.2d
1211, 1214 (8th Cir. 1983).
Consequently, “[w]here conflicting inferences as to a
material fact may reasonably be drawn from the materials before the court, the case is
not appropriate for summary judgment.” Id.
A. Administrative Exhaustion
Defendants again argue that Plaintiff failed to exhaust her administrative
remedies in the State of Nebraska.
The Court previously denied this claim, Filing No.
110 and Filing No. 118. The Court reviewed the current request by the defendants and
finds there is no new evidence for review. Accordingly, the Court denies this part of the
motion on the basis of its previous orders.
B. Constitutional Issues
Under the License Act, a "broker" is defined in relevant part as follows:
Broker means any person who, for any form of compensation or
consideration or with the intent or expectation of receiving the same from
another, negotiates or attempts to negotiate the listing, sale, purchase,
exchange, rent, lease, or option for any real estate or improvements
thereon, or assists in procuring prospects or holds himself or herself out
as a referral agent for the purpose of securing prospects for the listing,
sale, purchase, exchange, renting, leasing, or optioning of any real estate
or collects rents or attempts to collect rents, gives a broker's price opinion
or comparative market analysis, or holds himself or herself out as
engaged in any of the foregoing.
NEB. REV. STAT. § 81-885.01(2).
The challenged provision of the Act, as amended, provides:
(1) Any person who, directly or indirectly for another, with the intention or
upon the promise of receiving any form of compensation or
consideration, offers, attempts, or agrees to perform or performs any
single act described in subdivision (2) of section 81-885.01, whether
as a part of a transaction, or as an entire transaction, shall be
deemed a broker, associate broker, or salesperson within the
meaning of the Nebraska Real Estate License Act, and such action
shall constitute sufficient contact with the state for the exercise of
personal jurisdiction over such person in any action arising out of such
action. Committing a single act described in such subdivision by a
person required to be licensed under the Nebraska Real Estate
License Act and not so licensed shall constitute a violation of the act
for which the commission may impose sanctions pursuant to this
section for the protection of the public health, safety, or welfare.
(2) Notwithstanding any other provision of the law to the contrary, the
director may issue a cease and desist order against any person who
violates this section by performing any action described in subsection
(1) of this section without the appropriate license. Such order shall be
final ten days after issuance unless the violator requests a hearing
pursuant to section 81-885.25.2
Neb. Rev. Stat. § 81-885.03 (1) &(2).
The Nebraska Real Estate Commission’s mission is "To protect the public
interest of Nebraska citizens through the efficient and effective administration of the
Nebraska Real Estate License Act …." Mission Statement, NEBRASKA REAL ESTATE
COMMISSION, http://www.nrec.ne.gov (July 24, 2014).
Likewise, the Nebraska
legislature enacted the License Act and declared its purposes to be as follows:
1. To protect the Public against unfair practices and to elevate the
2. To protect persons dealing in the Real Estate either as seller or buyer
and to maintain dignity in the profession.
3. Purpose of the Real Estate License Law is to license all brokers and
salesmen to insure clean competition and also to assure the Public that its
interests are protected and that those engaged in this business have
passed an examination and know something about it.
4. Purpose is for protection of honest square dealing.
5. To place the Real Estate business on a high and fair standard and for
protection of the Public against swindlers.
6. To eliminate unfair trade practices thereby protecting the public and put
the Real Estate business on a higher level.
7. To control Real Estate dealers so the public will be protected.
8. To maintain a high standard of ethics and competence to carry on the
Real Estate activity.
9. For the protection of the people, especially the buyer and seller of Real
10. To be sure that capable and honorable persons handle the business of
the Real Estate Profession.
11. To license only trustworthy legitimate agencies and brokers.
12. To increase standards and reliability of Real Estate Dealers.
13. To avoid people being swindled to make the business a just and fair
14. To control and maintain high standards in the profession, to prevent
unfair practices and eliminate unqualified brokers.
15. To license every real estate broker and salesman thereby protecting
them against unlawful practices and protecting the public.
16. The purpose of the License Law is to protect the Public.
17. The purpose of the Real Estate License Law is to have fair dealing
and cut out the fraud.
18. It is to put it on a more sound basis and insure moral obligations.
See Doc. No. 152-1, ¶ 13; Doc. No. 152-14, LB 100, 1943 Leg., Pub. Health and Misc.
Subj. Committee (Neb. 1943).
In a constitutional challenge to a statute, courts recognize that “[i]f a law is
susceptible of a reasonable interpretation which supports its constitutionality, the court
must accord the law that meaning.” Jones v. Gale, 470 F.3d 1261, 1268 (8th Cir. 2006)
(quoting Planned Parenthood of Minn. v. State of Minn., 910 F.2d 479, 482 (8th
Facial challenges to statutes are disfavored “as they ‘often rest on
speculation’ and ‘raise the risk of premature interpretation of statutes on the basis of
factually barebones records.’” Roach v. Stouffer, 560 F.3d 860, 870 n. 5 (8th Cir. 2009)
(quoting Washington State Grange v. Washington State Republican Party, 552 U.S.
442, 450 (2008)). In a facial challenge, the plaintiff “must establish that no set of
circumstances exists under which the Act would be valid.” United States v. Stephens,
594 F.3d 1033, 1037 (8th Cir. 2010).
Plaintiff alleges "that both on their face and as applied to her, the challenged laws
violate her rights to Free Speech, Due Process, Equal Protection, and the Privileges or
Immunities of United States Citizenship guaranteed to her under the First and
Fourteenth Amendments." See Filing No. 91, ¶ 41. Plaintiff argues that the statutes are
both overbroad and vague, particularly as a person exercising common sense cannot
determine the meaning of “Negotiating a Listing” or “Procuring Prospects”. She further
contends that she is an advertising broker, not a real estate broker. She uses such
phrases as “Presented by Leslie Young Real Estate Advertising Services”.
Plaintiff alleges that advertising these properties is protected First Amendment
speech, Foresalebyowner.com v. Zinnemann, 347 F. Supp. 2d 868, 879 (E.D. Calif.
2004), and is not commercial speech. Id. at 876; see also Skynet Corp. v. Slattery, No.
06-cv-218, 2008 WL 924531, at *9 (D.N.H. Mar. 31, 2008) (requiring licensure for
publishing FSBO ads would be “absurd”). She argues there is no evidence that the use
of the words “brokered by” (which she argues were part of a Realtor.com template and
nothing she added) ever mislead any members of the public. Finally, plaintiff contends
that her ads propose that there be a transaction between the reader and the seller, but
not with her.
According to plaintiff, she assists the sellers with communicating
information, and defendant has submitted no evidence that the use of these terms has
in any way misled the public. Plaintiff argues that her disclaimer language in the actual
contracts with the sellers includes:
“THIS AGREEMENT IS FOR AN MLS ENTRY
LISTING ONLY for the sole purpose of advertising. Broker does not perform real estate
services outside the State of California. Broker is performing data entry into the MLS
OBLIGATION IS BEING CREATED HEREIN.” Young Dec. Ex. 1, Filing No. 153-3, ¶ 3.
Defendant contends that plaintiff has no constitutional right to the protection she
seeks. Defendant points out that plaintiff entered into nearly thirty “listing Agreements”
with Nebraska residents, and these agreements listed the plaintiff as the broker and the
Nebraskans as the sellers. See Affidavit of Adam Prochaska, Filing No. 152-1, §§ 2, 3,
Plaintiff's Responses to Defendants' First Set of Interrogatories, Filing No. 152-2, p.14
(Interrogatory No. 8); Deposition of Leslie Rae Young ("Young Deposition"), Filing No.
152-3, p.21. Further, plaintiff helped Nebraska residents obtain Multiple Listing Service
numbers and communicated with Nebraska residents. See Filing No. 152-1, § 3, Young
Deposition, Filing No. 152-3, p. 17: 19-21; See Filing No. 152-1, § 5, Email with Chad &
Suzanne Phinney, Filing No. 152-6 ("Thank you for all your help managing our home for
sale."); Filing No. 152-1, § 6, Email to Linda Swanson, Filing No. 152-7 ("I have your
forms. They look great."). Plaintiff also gave some customers some advice regarding
See Filing No. 152-1, § 7, Email to Jeff Berggren, Filing No. 152-8; See Filing
No. 152-1, § 8, Emails with Susan Geise, Filing No. 152-9. She also signed her regular
mail communication as "Leslie Young, Broker." See Filing No. 152-1, § 9, Email to Mary
Zimmer, Filing No. 152-10.
Plaintiff additionally gave her clients MLS numbers for
Nebraska properties and made requests for changes for these customers.
defendants argue that only licensed realtors are permitted to access Realtor.com. See
Filing No. 152-1, §§ 3, 10, Young Deposition, Filing No. 152-3, p. 35: 10-17; Deposition
of Director Greg Lemon, Filing No. 152-11 ("Lemon Deposition"), p. 43: 22-25.
Defendants contend plaintiff represented herself in her agreements as broker/agent.
See, e.g., Filing No. 152-1, §§ 11, 12, Property Agency Listing Agreement, Filing No.
152-12; Disclosure Regarding Real Estate Agency Relationships, Filing No. 152-13
(referring repeatedly to Plaintiff and/or eList.me as a "Broker" and "Agent"). Further, the
defendants argue plaintiff is procuring prospects and being paid to do so.
The Court believes it is questionable whether the plaintiff’s speech is even
protected speech. Plaintiff calls her speech “advertising activities.” The Court agrees
with the defendant that this is a conduct regulation and not a speech regulation.
Liberty Coins, LLC v. Goodman, 748 F.3d 682, 686 (6th Cir. 2014) (plaintiff challenged
the statute on first amendment grounds prohibiting a person from “holding himself out”
as a precious metal dealer and “advertising” for sales without a license, and court held
the statute was not content based, as it just regulated conduct and not speech). The
The PMDA does not burden the commercial speech rights of unlicensed
precious metals dealers because such dealers do not have a
constitutional right to advertise or operate an unlicensed business that is
not in compliance with the reasonable requirements of Ohio law. Such
dealers cannot "hold themselves out" to the public without a license,
regardless of whether they advertise. This case does not turn on
advertising or solicitation, it turns on whether the business in question
holds itself out to the public, which can occur by posting a sign, placing
goods in an open window, simply conducting business in a manner that is
visible to the public, or otherwise making its wares available to the public.
This Court properly applies rational basis review in concluding that the
statute does not violate Plaintiffs' First Amendment rights.
Liberty Coins, LLC, 748 F.3d at 697.2 The Court agrees with the analysis set forth in
the Sixth Circuit. Plaintiff calls herself a broker and agent on her websites and in her
listing agreements. The Nebraska statutory scheme regulates licensing, hence conduct,
but does not prohibit protected speech.
As the Sixth Circuit stated:
The statute proscribes business conduct and economic activity, not
speech. Without first obtaining a license from the State, a precious metals
dealer may not have a storefront with or without signage, may not spread
word to the public that it is open for business, may not place
advertisements in the newspaper, and may not function as an open,
public, and visible business.
Id. at 697. In a similar case in the State of Vermont, the Supreme Court stated:
The difficulty with McElroy's argument is that he has posed the wrong
question. He is not being restrained from publishing advertisements; he is
being restrained from publishing misleading statements about his own
status as a broker. The statute prohibits him from holding himself out as a
Vermont broker engaged in the real estate business without a license.
The Court notes that it appears as though plaintiff in this case filed an amicus brief in the Liberty
Coins case making the same argument in that case.
Office of Prof'l Reg. v. McElroy, 175 Vt. 507, 510 (Vt. 2003); Gruwell v. Ill. Dep't of Fin.
& Prof'l Reg., 406 Ill. App. 3d 283 (Ill. Ct. App. 2010) (same). As stated by the United
States Supreme Court:
"the state does not lose its power to regulate commercial
activity deemed harmful to the public whenever speech is a component of the activity."
Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447, 456 (1978).
The Court agrees that plaintiff does not show homes in person, that she does not
negotiate terms of purchase and sale, that she does not arrange or attend meetings
between buyers and sellers, that she does not answer questions about properties for
sale, and that she does not handle earnest money or other client funds. However, on
several occasions she has communicated with the Nebraska residents and provided
services or advice. See Filing No. 152-1, §§ 5 and 6; Filing No. 152-6 ("Thank you for
all your help managing our home for sale."); Filing No. 152-7 ("I have your forms. They
look great."). She also advised one customer:
When buyers write or call for information, most do not have agents
representing them. You will want to contact the buyer quickly BEFORE
THEY HIRE a local agent to represent them. This gives the seller an
opportunity to sell their property without paying a commission to the
But there are up-to-date Agents who also use Realtor.com. This is
because Realtor.com is the official website of the National Association of
Realtors. If agents are telling you that you are not in your local MLS.…
then they know about your property. They also know where they can look
to get more information about your property. And they know how to talk to
you to bring you a buyer. There is nothing to stop them from bringing you
a buyer. In this case, you may not need a local MLS listing.
See Filing No. 152-1, § 7; Filing No. 152-8.3
The Court finds the plaintiff acted as an unlicensed broker in Nebraska. The
Nebraska statutory regulation is “content neutral”, as it “regulate[s] people without
regard to speech on any particular topic or viewpoint.” Phelps-Roper v. Koster, 713
F.3d 942, 950 (8th Cir. 2013). The Court agrees with the defendant that “A person may
list his or her own property for sale on the internet without a license. A licensed broker
may list a client's property for sale on the internet. However, an unlicensed broker who
describes herself as a "broker" may not list a client's property for sale on the internet or
hold herself out as a "broker" without a license. See NEB. REV. STAT. §§ 81-885.01
and 81-885.02.” Filing No. 154, at 31.
For these reasons, the Court finds this case is not about the First Amendment
freedom of speech. This case is about regulating brokers of real estate transactions.
The facts as set forth herein clearly show plaintiff met the definition by her actions of
acting as a real estate broker via the language she used in the listing agreements. As
such, she is subject to the regulatory scheme set forth by the Nebraska Unicameral.
Plaintiff’s claim that she is not acting as a broker but is more like a newspaper is without
merit. Plaintiff represents herself as an "advertising broker" and a "listing broker," and
her postings on Realtor.com have no disclaimer stating that she is not a real estate
Plaintiff signed her direct email communication to her "customers" as "Leslie Young, Broker.";
Filing No. 12-1, pp. 8, 9, 10, 11, 12, 14, 16, 18, 20, 22, 24, 26 and 27; Filing No. 12-2, pp. 3, 5, 7, 11, 13,
15, 17, 19, 21, 23, 25, and 27 (The listings include pictures and descriptions of the Nebraska properties,
and they identify Plaintiff by name as an "agent," "advertising broker" and a "listing broker"); Filing No. 121, pp. 8, 9, 10, 11, 14, 15, 16, 18, 19, 20, 22, 23, 24, 26 and 27; Filing No. 12-2, pp. 3, 4, 5, 7, 8, 11, 12,
13, 15, 16, 17, 19, 20, 21, 23, 24, 25, and 27 (The listings encourage viewers to "Email Agent" and view
"Agent’s Other Listings," and to call "Leslie Young, Advertising Broker" for "Information and Showings").
agent or broker. See Filing No. 12-1, pp. 8, 9, 10, 11, 12, 14, 16, 18, 20, 22, 24, 26 and
27; see also Filing No. 12-2, pp. 3, 5, 7, 11, 13, 15, 17, 19, 21, 23, 25, and 27.
The Court finds that plaintiff does in fact list herself as an “advertising broker” and
an “agent” for the Nebraska real estate listings.
At the time of the issuance of the
cease and desist order, plaintiff referred to herself as an "advertising broker", a "listing
broker" and an "agent." See Filing No. 12-1; see also Filing No. 12-2. The websites
further stated "Email Agent", "Presented by Leslie Young, Advertising Broker," "Agent's
Other Real Estate Listings", and "Send My Question to Leslie Young, Advertising Broker
(Agent)." See Filing No. 12-1; see also Filing No. 12-2. Plaintiff, because she is a
California real estate broker, is permitted to list properties into the MLS database under
California regulations. However, it is then picked up by Realtor.com which operates in
Nebraska. It is then viewed by potential buyers for Nebraska property.
lists these properties in the broker only MLS database and the broker only website,
The average person may not list on Realtor.com or in the MLS service.
She charges a fee for her services, and provides the sellers with at least some advice
The Court further finds plaintiff is a California broker, who has renamed herself
an advertising broker, and who gets paid for that service. It is true that plaintiff does not
receive a percentage of the sale price as a commission, but instead she is paid a flat
fee of $95.00, and her payment apparently comes from the Chicago Tribune and not the
She testified that she provided them with a CD containing information and weblinks. See Filing
No. 152-4, pp. 92-93. When Defendants asked her to produce a copy of the CD, plaintiff was unable to
produce the same, indicating that she has no way of obtaining a copy. Id. See Supplemental Affidavit of
Adam Prochaska, Doc. No. 157-1, ¶ 10.
sellers. If it was nothing more than that set of facts, that is listing the property without
any representations as broker or agent or providing advice, the Court might indeed
conclude that plaintiff is only in the business of advertising. However, that is not the
case. Based on the facts of this particular case, the Court concludes that plaintiff has
violated the Nebraska statutory requirements for real estate brokers. For these same
reasons, the Court finds that all other claims of the plaintiff must fail. Accordingly, the
Court will enjoin plaintiff from further violating the Nebraska laws in this regard.
THEREFORE, IT IS ORDERED THAT:
1. Plaintiff’s motion for summary judgment, Filing No. 153, is denied, and her
motion for hearing, Filing No. 156, is likewise denied;
2. Defendant’s motion for summary judgment, Filing No. 151, is granted.
A separate judgment will be entered in accordance with this memorandum
Dated this 28th day of January, 2015
BY THE COURT:
s/ Joseph F. Bataillon
Senior United States District Judge
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