Dizzy Dottie, LLC v. Township of Jackson et al

Filing 33

MEMORANDUM and ORDER denying 22 Motion for Injunctive Relief Signed by Honorable James M. Munley on 5/19/10 (sm, )

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA DIZZY DOTTIE, LLC, Plaintiff : No. 3:10cv752 : : (Judge Munley) : : v. : : TOWNSHIP OF JACKSON; : MICHELLE ARNER; and : JOHN DOES 1-15, : Defendants : ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
M E M O R AN D U M B e fo re the court is plaintiff's motion for injunctive relief (Doc. 22), which seeks an order preventing defendants from bringing suit in the Court of Common P le a s of Monroe County Pennsylvania. Background T h is case arises out of a land-use dispute between the plaintiff, which o p e ra te s an eating and drinking establishment, "Thrills," located in Defendant T o w n s h ip of Jackson, Pennsylvania. Plaintiff filed an initial cause of action in this c o u rt on April 8, 2010. (Doc. 1). That cause of action alleged that Thrills offered its p a tro n s "live entertainment in the form of non-obscene erotic dancing by costumed fe m a le dancers." (Id. at ¶ 1). Thrills had built an extension to its pre-existing stage m e a n t to allow dancers better to interact and receive tips from customers. (Id. at ¶ 1 4 ). A dispute arose about whether Thrills required a permit for this extension, and

plaintiff complained that refusal to allow use of the stage undermined its business p la n . (Id. at ¶¶ 16-21, 24). Plaintiff's initial complaint sought an injunction permitting u s e of this stage. (See Id.). That complaint also represented that plaintiff sought to fe a tu re topless and/or nude dancing, but that a Township of Jackson ordinance may p ro h ib it such use. (Id. at ¶ 29-30). Plaintiff alleged that such an ordinance would vio la te the First Amendment of the Constitution. (Id. at ¶ 31). The complaint sought a declaration from the court that the ordinance was unconstitutional and an in ju n c tio n from the court preventing its enforcement. The final cause of action in the c o m p la in t sought similar relief under the Pennsylvania Constitution. Plaintiff also filed a motion for "temporary and preliminary restraints." (Doc. 5). This motion sought an order from the court directing defendants to allow plaintiff to u s e the extension to the stage it had constructed. After receiving this motion, the c o u rt convened a telephone conference between the parties in an attempt to resolve th e issue. After discussing the situation, the parties agreed to allow plaintiff to use th e stage extension pending state adjudication of plaintiff's application for a permit fo r that stage. (See Stipulation (Doc. 10) at ¶¶ 1-5). The parties also agreed to stay a c tio n on plaintiff's claims for relief pursuant to the federal and state constitutions, a n d to administratively close the case. (Id. at ¶ 6). Plaintiff interpreted this agreement to include a promise from the defendants to n e g o tia te over the constitutional issues raised in the complaint. (See "Certification of C o u n s e l in Support of Motion on Short Notice" (Doc. 22) at ¶¶ 5-6). According to the

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plaintiff, defendants made no effort to negotiate such a settlement. Eventually, d e fe n d a n ts informed plaintiff that no negotiations could occur until after a township m e e tin g scheduled for May 13, 2010. (Id. at ¶ 6). Fearing that defendants would n e ve r negotiate, plaintiff wrote this court on May 6. (Id. at ¶ 7). Defendants did not re s p o n d , and on May 7 plaintiff began featuring topless dancers at Thrills. (Id.). Despite their position that such dancing violated the Township's zoning ordinance, d e fe n d a n ts did not issue plaintiff a notice of a zoning violation. (Id.). Instead, the to w n s h ip decided at its May 13, 2010 meeting to initiate a state-court action against th e plaintiff for violating zoning ordinances. (Id. at ¶¶ 7-9). Plaintiff notified this court on May 14 that the Defendant Township had d e c id e d to initiate litigation and that issues raised in the plaintiff's initial complaint h a d not been resolved. (Id. at ¶ 9). The court directed plaintiff to contact opposing c o u n s e l and attempt to resolve those issues, and scheduled a telephone conference fo r the following Monday, May 17, 2010. (Id.). Defendants then filed an action in the C o u rt of Common Pleas for Monroe County, Pennsylvania. (Id.). That state-court a c tio n seeks to enjoin operation of plaintiff's business, citing the zoning ordinance w h ic h is the subject of the instant action. (Id. at ¶ 10). A fte r hearing from counsel for each side during its May 17, 2010 telephonic c o n fe re n c e , the court ordered the case reopened. (See Doc. ). The court also o rd e re d the defendants to file an answer or other appropriate response to the c o m p la in t by May 21, 2010. (Id.). Before defendants could file this response,

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plaintiff filed the instant motion, which seeks immediate relief. The court ordered the d e fe n d a n ts to respond and scheduled a hearing. The court received the parties' b rie fs and held a hearing on the matter on May 18, 2010, bringing the case to its p re s e n t posture. J u r is d ic tio n P la in tiff brings its claim pursuant to 42 U.S.C. § 1983. The court therefore has ju ris d ic tio n pursuant to 28 U.S.C. § 1331 ("The district courts shall have original ju ris d ic tio n of all civil actions arising under the Constitution, laws, or treaties of the U n ite d States."). The court has supplemental jurisdiction over the plaintiff's state law c la im s pursuant to 28 U.S.C. § 1367. Discussion P la in tiff seeks an order from the court enjoining the Defendant Township from b rin g in g suit in state court to enforce its zoning ordinance. Plaintiff argues that by filin g action in state court the defendants have "creat[ed] a significant danger of in c o n s is te n t verdicts, not to mention irreparable violations of federal civil rights." (Memorandum of Law in Support of Motion on Short Notice (Doc. 22) at 14). Under th o s e conditions, "principles of federalism and comity require the court in which the s e c o n d suit is filed to give way to the first-filed suit." (Id.). In addition, the plaintiff c o n te n d s that the state-court suit should be "dismissed because the Defendant T o w n s h ip seeks the enforcement of a flagrantly unconstitutional . . . interpretation of th e zoning ordinance." Id. at 14-15. As grounds for this court to act to prevent the 4

second, state-court action from going forward, plaintiff cites to Younger v. Harris, 401 U .S . 37 (1971) and Bettencourt v. Board of Registration, 904 F.2d 772 (1st Cir. 1 9 9 0 ). T h e cases cited by the plaintiff do not provide this court with grounds to enjoin d e fe n d a n ts from bringing action in state court, and plaintiff has not provided the court w ith any other argument to justify such extraordinary action. Those cases discuss th e Supreme Court's abstention doctrine, which provides a basis for a federal court to decline to entertain a case when hearing that case would disrupt ongoing statec o u rt proceedings. Younger establishes that "it has been perfectly natural for our c a s e s to repeat time and again that the normal thing to do when federal courts are a s k e d to enjoin proceedings in state courts is not to issue such injunctions." 401 U .S . at 37. The Third Circuit Court of Appeals has declared that "[a]bstention under Y o u n g e r is appropriate only where (1) there are ongoing state proceedings that are ju d ic ia l in nature; (2) the state proceedings implicate important state interests; and (3 ) the state proceedings afford an adequate opportunity to raise federal claims." Lui v. Comm'n on Adult Entm't Establishments, 369 F.3d 319, 326 (3d Cir. 2004). W h ile the court is not certain that abstention should apply in these circumstances, if it did, the court would not act to prevent the state court action but would instead d e c lin e to exercise its own jurisdiction. Plaintiff appears to argue that this court s h o u ld enforce the abstention doctrine against a state court. That is not a decision fo r this court to make, however. Plaintiff has therefore failed to articulate grounds

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justifying action by this court. The court recognizes that plaintiff also argues that the zoning ordinance at q u e s tio n is unconstitutional. At argument, however, plaintiff conceded that the state c o u rt is competent both to interpret the local zoning ordinance and to determine w h e th e r the ordinance complies with the federal and state constitutions. As such, p la in tiff will be afforded an opportunity to vindicate its rights and advance its in te rp re ta tio n of the Constitution, and thus will suffer no prejudice. The court will th e re fo re deny the plaintiff's motion. C o n c lu s io n F o r the reasons stated above, the court will deny the plaintiff's motion for in ju n c tiv e relief. An appropriate order follows.

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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA DIZZY DOTTIE, LLC, Plaintiff : No. 3:10cv752 : : (Judge Munley) : : v. : : TOWNSHIP OF JACKSON; : MICHELLE ARNER; and : JOHN DOES 1-15, : Defendants : ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
ORDER AN D NOW, to wit, this 19th day of May 2010, the plaintiff's motion for in ju n c tiv e relief (Doc. 22) is hereby DENIED. B Y THE COURT:

s / James M. Munley JUDGE JAMES M. MUNLEY U N IT E D STATES DISTRICT COURT

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