L'Europa et al v. Rhode Island Division of State Fire Marshal et al

Filing 15

MEMORANDUM AND ORDER granting 8 Motion to Dismiss. So Ordered by Chief Judge William E. Smith on 6/19/2018. (Jackson, Ryan)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
___________________________________
)
WILLIAM R. L’EUROPA; EXECTIVE
)
PUBLIC ADJUSTERS, LLC; DISASTER
)
RESTORATION GROUP, LLC; and ALL
)
STAR CONSTRUCTION, INC.,
)
)
Plaintiffs,
)
C.A. No. 17-430
)
v.
)
)
)
RHODE ISLAND DIVISION OF STATE
)
FIRE MARSHAL; JAMES GUMBLY, in
)
his capacity as acting Director
)
of the RHODE ISLAND DIVISION OF
)
STATE FIRE MARSHAL; RHODE ISLAND
)
ATTORNEY GENERAL PETER F.
)
KILMARTIN, in his capacity as
)
RHODE ISLAND ATTORNEY GENERAL;
)
and SCOTTYE LINDSEY, in his
)
capacity as Director of THE RHODE )
ISLAND DEPARTMENT OF BUSINESS
)
REGULATION,
)
)
Defendants.
)
___________________________________)
MEMORANDUM AND ORDER
WILLIAM E. SMITH, Chief Judge.
This case is before the Court on a Motion to Dismiss (ECF No.
8) the Complaint (ECF No. 1). After an overview of the alleged
facts, the Court considers and GRANTS the Motion.
I.

Background
William R. L’Europa holds a public-adjusters license, and is

the

principal

(“Executive”)

owner
a

of

Executive

public-adjusting

Public

business.

Adjusters,
(Compl.

¶¶

LLC,
3-4).

Disaster Restoration Group Public, LLC, (“Disaster”) and All Star
Construction,

Inc.,

(“All

Star”)

are

both

involved

in

the

construction business. Id. at ¶¶ 5-6. On September 13, 2017,
Defendant Scottye Lindsey, in his official capacity as the director
of the Department of Business Regulation (“DBR”), issued an Order
for L’Europa “to Show Cause why orders should not issue to revoke
L’Europa’s license, to cease and desist unlawful activity and pay
penalties based in part for a violation of R.I. Gen. Laws §2328.2-11.” Id. at ¶ 20.
On September 18, 2017, Plaintiffs asserted in their complaint
that R.I. Gen. Laws §23-28.2-11 (“Statute”) violates their First
Amendment right to freedom of speech. Id. at ¶¶ 21-27. Thereafter,
on December 13, 2017, the Department of Business Regulation amended
the Order to Show Cause, removing the Statute as grounds for
revocation of L’Europa’s license. (Mem. Supp. Pls.’ Obj. to Defs.’
Mot. to Dismiss (“MSPO”) 3, ECF No. 11).
II.

Discussion
The Statute states, in relevant part: “police, fire and

building

officials,

shall

prohibit

any

and

all

insurance

adjusters, contractors, and restoration companies from engaging in
any solicitation or inspection or any physical presence on the
premises under investigation until twenty-four (24) hours after
. . . the state fire marshal . . . releases control of the premises
to its legal owner(s) . . . .” R.I. Gen. Laws § 23-28.2-11.
2

Plaintiffs claim the Statute is unconstitutional and request
a

declaratory

injunction

judgment

preventing

to

that

effect.

Defendants

from

They

also

enforcing

request

the

an

Statute.

(Compl. at ¶¶ 36-37). Defendants claim the Younger abstention
doctrine applies to the complaint, which should therefore be
dismissed.

(Mot.

to

Dismiss

12).

Defendants

further

contend

Plaintiffs fail to state a claim and lack standing. (Defs.’ Reply
Mem. 3-7, ECF No. 13). The Court finds that even though Plaintiffs
have standing, their complaint should be dismissed pursuant to
Younger abstention.
A.

Subject Matter Jurisdiction

The

Constitution

restricts

federal

court

jurisdiction

to

“Cases” and “Controversies.” U.S. Const. art. III, § 2, cl. 1. One
element of this restriction requires a party invoking federal
jurisdiction to establish it has standing to sue. Blum v. Holder,
744 F.3d 790, 795 (1st Cir. 2014). Defendants argue Plaintiffs
lack standing because Defendant DBR removed the Statute from the
Order to Show Cause. (See Defs.’ Reply Mem. 3). This argument
misses the mark, however, because standing is assessed at the time
of filing. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 569 n.4
(1992) (noting the “longstanding rule that jurisdiction is to be
assessed under the facts existing when the complaint is filed.”);
Wheaton Coll. v. Sebelius, 703 F.3d 551, 552 (D.C. Cir. 2012)
(“[S]tanding is assessed at the time of filing . . . .”). And when
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Plaintiffs filed their complaint, the Statute was cited in the
Order to Show Cause.
B.
In

Younger Abstention
Younger

v.

Harris,

the

Supreme

Court

held,

absent

extraordinary circumstances, that federal courts should not enjoin
pending criminal proceedings in state courts. See 401 U.S. 37, 4344 (1971). The Younger doctrine was later expanded to include three
types of state proceedings: “(i) criminal prosecutions, (ii) civil
proceedings that are akin to criminal prosecutions, and (iii)
proceedings that implicate a State’s interest in enforcing the
orders and judgements of its courts.” Sirva Relocation, LLC v.
Richie, 794 F.3d 185, (1st Cir. 2015) (quoting Sprint Commc’ns,
Inc. v. Jacobs, 571 U.S. 69, 72-73 (2013)). The First Circuit has
enunciated

a

three-step

approach

to

determine

when

Younger

abstention applies. See Sirva 794 F.3d at 192. First, the court
must determine if “a particular state proceeding falls within the
Younger taxonomy,” that is, whether the case is one of the three
types mentioned above. Id. at 193. If so, the court must determine
“whether

the

Middlesex

factors

support

abstention.”

Id.;

see

Sprint, 571 U.S. at 81(referring to Middlesex Cty. Ethics Comm. v.
Garden State Bar Ass'n, 457 U.S. 423, 432 (1982)). Finally, if
both steps support abstention, the court must determine if any
doctrinal exceptions apply. See Sirva, 794 F.3d at 193.

4

Defendants contend the state license-revocation proceeding is
civil, but akin to a criminal prosecution. (Mot. to Dismiss 5.)
The Supreme Court has said civil proceedings akin to criminal
prosecutions are ones “characteristically initiated to sanction
the federal plaintiff . . . for some wrongful act.” Sprint, 571
U.S. at 79.

“In cases of this genre, a state actor is routinely

party to the state proceeding and often initiates the action[,
and] [i]nvestigations are commonly involved, often culminating in
the filing of a formal complaint or charges.” Id. at 79—80.
The Defendants are right, then, that the license-revocation
proceeding is a species found in the Younger taxonomy: the state
instituted the proceeding to sanction L’Europa by revoking his
public-adjusters license. (Compl. ¶ 20).

DBR, who initiated the

proceedings, is a state actor. (Mot. to Dismiss 5). And DBR filed
the Order to Show Cause as a result of an investigation of
L’Europa. Id.
Because this case falls within the Younger taxonomy, the next
question is whether the Middlesex factors support abstention. See
Sirva, 794 F.3d at 193. The first factor inquires whether there is
an ongoing state proceeding, which there was at the time Plaintiffs
filed their complaint. See Middlesex, 457 U.S. at 432; Coggeshall
v. Mass. Bd. of Registration of Psychologists, 604 F.3d 658, 664
(1st Cir. 2010) (The Middlesex factors “all must be assessed as of

5

the date when the federal complaint is filed.”); Bettencourt v.
Bd. of Registration in Med., 904 F.2d 772, 777 (1st Cir. 1990).
The second factor asks whether “the proceedings implicate
important state interests.” Middlesex, 457 U.S. at 432. The Statute
Defendants seek to enforce bars the solicitation or presence of
both insurance adjusters and contractors for twenty-four hours
after the premise on which there was a fire or attempted fire is
released back to its owner. R.I. Gen. Laws §23-28.2-11(c). The
license-revocation proceeding and the Statute therefore implicate
important state interests both in the regulation of licensed
practitioners and the protection of victims’ privacy. See Fla. Bar
v. Went For It, Inc., 515 U.S. 618, 625 (1995) (“[T]he State’s
interest in protecting the well-being, tranquility, and privacy of
the home is certainly of the highest order in a free and civilized
society.” (quoting Carey v. Brown, 447 U.S. 455, 471 (1980))).
The final Middlesex factor ensures there is an “adequate
opportunity

in

the

state

proceedings

to

raise

constitutional

challenges.” Middlesex, 457 U.S. at 432. Plaintiffs contend the
constitutionality of the Statute cannot be argued at the licenserevocation proceeding because DBR removed the Statute when they
amended the Order to Show Cause. (MSPO 6.) But this contention
overlooks that the Court must apply the Middlesex factors to the
state

of

affairs

extant

at

the

time

Plaintiffs

filed

their

complaint. See Coggeshall, 604 F.3d at 664. And at that time, the
6

Statute was listed in the Show Cause Order. Plaintiffs, moreover,
have “provided no evidence that overcomes the strong presumption
that

[their]

federal

claims

can

be

addressed

in

the

state

proceeding.” Amadi v. Dep’t of Children & Families, 245 F. Supp.
3d 316, 321 (D. Mass. 2017).
Plaintiffs have also provided no evidence that any of the
“isthmian” exceptions to Younger apply. See Sirva, 794 F.3d at
192-93 (“Abstention is inappropriate . . . when a state proceeding
is brought in bad faith[;] . . . if the state forum provides
inadequate protection of federal rights[;] . . . [or] when a state
statute

is

flagrantly

and

patently

violative

of

express

constitutional prohibitions.”) (quotation marks omitted)).
III. Conclusion
This case checks all the boxes under Younger, and implicates
none of the exceptions. Thus, the Court is compelled to abstain
and GRANT Defendants Motion to Dismiss (ECF No. 8). See Taal v.
St. Mary’s Bank, No. 16-cv-231-LM, 2017 WL 627391, at *5 (D.N.H.
Feb. 14, 2017) (“Because the circumstances of this case fit within
the Sirva paradigm when the case was filed, the court must abstain.
Abstention, in turn, compels the court to grant the motion to
dismiss filed by the . . . defendants.”).

7

IT IS SO ORDERED.

William E. Smith
Chief Judge
Date: June 19, 2018

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