Beg Invs., LLC v. Alberti, Civil Action No.: 13-cv-0182 (RC)
| Decision Date | 24 March 2015 |
| Docket Number | Civil Action No.: 13-cv-0182 (RC) |
| Parties | BEG INVESTMENTS, LLC, Plaintiff, v. NICHOLAS ALBERTI, et al., Defendants. |
| Court | U.S. District Court — District of Columbia |
Plaintiff BEG Investments, LLC, operated Twelve Restaurant and Lounge, a nightclub in the District of Columbia. As a consequence, Plaintiff's business was regulated by the D.C. Alcohol Beverage Control Board ("the Board"), an administrative body tasked with approving, changing, suspending, and revoking liquor licenses for establishments serving alcoholic beverages in the District. In June 2011, after reports of multiple violent incidents at Plaintiff's establishment, the Board granted Plaintiff's application to renew its liquor license, but did so on the condition that Plaintiff hire a police detail to patrol the area surrounding its establishment when Plaintiff provided certain types of live entertainment. Plaintiff filed suit against six members of the Board in February 2013, arguing that the condition on its liquor license was discriminatory and extortionate. This Court dismissed Plaintiff's six-count complaint on March 31, 2014, on qualified immunity grounds and for failure to state a claim, but gave Plaintiff leaveto amend its First Amendment and Equal Protection Clause claims. Plaintiff filed an amended complaint on April 30, 2014.
On June 6, 2014, after an assault occurred at Plaintiff's establishment, the Board summarily suspended Plaintiff's liquor license. Plaintiff views the suspension and other actions taken by the Board after Plaintiff filed its first complaint as retaliatory, and Plaintiff filed a motion to supplement its complaint with these allegations on July 16, 2014. The supplemental complaint named two additional Board members as Defendants, as well as a Sergeant with MPD and an attorney for the District of Columbia's Office of the Attorney General ("OAG"). Now before the Court are Defendants' motion to strike the amended complaint or, in the alternative, to dismiss all claims, Plaintiff's motion to supplement its complaint, and Defendants' motion for Rule 11 sanctions. Upon consideration of the parties' motions and the memoranda in support thereof and opposition thereto, the Court will grant Defendants' motion to strike or dismiss the amended complaint, grant in part and deny in part Plaintiff's motion to supplement its complaint, and grant in part and deny in part Defendants' motion for Rule 11 sanctions.
Plaintiff is a company that formerly operated Twelve Restaurant and Lounge in the District of Columbia. Defendants Nicholas Alberti, Donald Brooks, Herman Jones, Calvin Nophlin, Mike Silverstein, and Ruthanne Miller are members of the Board who have issued a series of orders pertaining to Plaintiff's liquor license.1
As detailed in this Court's Memorandum Opinion of March 31, 2014,2 the Board was established by D.C. Code § 25-201, and it is authorized to "issue licenses to persons who meet the requirements" set forth in the Alcoholic Beverage Statute and to impose "certain conditions" on those licenses if the Board "determines that the inclusion of the conditions will be in the best interest of the locality . . . where the licensed establishment is to be located." D.C. Code § 25-104(a), (e). The Board also oversees the Alcoholic Beverage Regulation Administration ("ABRA"), which provides "professional, technical, and administrative staff assistance to the Board in the performance of its functions." D.C. Code § 25-202.
On June 22, 2011, the Board issued an order on Plaintiff's application for renewal of its liquor license. Board Order 2011-289 at 7, Defs.' Ex. A, ECF No. 19-2;3 Compl. ¶ 26, ECF No. 1.4 After finding that there had been three assaults and fifteen calls to the Metropolitan Police Department ("MPD") at the establishment's address, and that MPD had increased patrols in the area due to intoxicated individuals leaving Plaintiff's establishment, the Board granted Plaintiff's application for renewal of its license on the condition that Plaintiff hire an MPD reimbursabledetail "whenever the establishment provides any entertainment permitted by the establishment's entertainment endorsement." Board Order 2011-289 at 4, 7, Defs.' Ex. A. A reimbursable detail is comprised of "MPD officers [who] patrol the surrounding area of an establishment for the purpose of maintaining public safety." See D.C. Code § 25-798(a)(3); Emergency Suspension of Liquor Licenses Act of 2005, D.C. Act 16-20.
Upon Plaintiff's motion for reconsideration, the Board modified its June 22 order on August 10, 2011, ordering that Plaintiff hire an MPD reimbursable detail "whenever the establishment provides any DJs or live music as entertainment at the establishment." Board Order 2011-368 at 12, Defs.' Ex. B, ECF No. 19-2. Additionally, the modified order required that the MPD detail "be hired for a minimum of four hours and shall end no sooner than one hour after closing." Id. On July 11, 2012, the Board fined Plaintiff $1500 for failing to hire an MPD reimbursable detail when a DJ performed at Plaintiff's establishment on October 9, 2011. Board Order 2012-301 at 22, Defs.' Ex. C., ECF No. 19-2.
Plaintiff initiated this action by filing a six-count complaint against Defendants in their individual capacities on February 11, 2013. See generally Compl., ECF No. 1. Plaintiff claimed that the Board's orders requiring Plaintiff to hire an MPD detail at a rate of over $55 per hour - more than double the basic wage of police officers - was unlawful and extortionate. Plaintiff alleged: (1) racketeering in violation of RICO, 18 U.S.C. § 1962(c); (2) conspiracy to commit racketeering in violation of RICO § 1962(d); (3) deprivation of equal protection of the law; (4) deprivation of property in violation of the Takings Clause of the Fifth Amendment; (5) deprivation of freedom of speech in violation the First Amendment; and (6) conspiracy to deprive Plaintiff of equal protection of the laws in violation of 42 U.S.C. § 1985. Defendantsmoved to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(6), and the Court granted Defendants' motion. See Order, ECF No. 8.
In its Memorandum Opinion, this Court explained that Plaintiff's RICO claims, which were predicated on violations of the Hobbs Act, failed because the unlawfulness of Defendants' imposition of a reimbursable detail was not clearly established. BEG Investments, 34 F. Supp. 3d. at 80-84. As a result, Defendants were entitled to qualified immunity on the RICO and Hobbs Act claims. Id. Additionally, the Court found that Plaintiff's allegations were inadequate to state an Equal Protection Clause, Fifth Amendment, or First Amendment claim. Id. at 84-88. Although the Court dismissed Plaintiff's complaint in its entirety, it did grant Plaintiff leave to amend its claims brought pursuant to the Equal Protection Clause and the First Amendment because Plaintiff had alleged additional facts pertaining to those claims in its opposition brief. Order, ECF No. 8.
On April 30, 2014, Plaintiff filed an amended complaint against the same six Defendants, this time in both their individual and official capacities. Am. Compl. ¶¶ 3-4, ECF No. 12. Notably, the amended complaint was not limited to Plaintiff's Equal Protection Clause and First Amendment claims, which the Court had given Plaintiff leave to amend. Instead, the amended complaint reasserted all six of Plaintiff's previously dismissed claims and added a seventh claim that Defendants violated the Civil Rights Act of 1964 by targeting establishments like Plaintiff's "for the purpose of inhibiting the free association of young black African Americans and to inhibit the playing of 'urban' styles of music such as R&B, Hip-Hop and Go-Go music." Am. Compl. ¶ 119.
Defendants, pointing out that Plaintiff had not obtained either their consent or the Court's leave to amend as required by Federal Rule of Civil Procedure 15(a)(2), have moved to strike the amended complaint, with the exception of Plaintiff's Equal Protection Clause and First Amendment claims. Defs.' Mot. Strike at 6, ECF No. 14-1. Alternatively, Defendants move to dismiss all claims pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. Id. at 1.
On July 16, 2014, Plaintiff filed a two-page motion for leave to file a supplemental complaint to include events that occurred after Plaintiff filed its first complaint, pursuant to Federal Rule of Civil Procedure 15(d). Pl.'s Mot. Leave to Suppl. Compl. at 1-2., ECF No. 18. The supplemental complaint named four new Defendants: Amy Schmidt-Banker, an OAG attorney who prosecuted a noise violation complaint against Plaintiff; Alexander Pope, III, a Sergeant with MPD who responded to an assault at Plaintiff's establishment and reported to an ABRA investigator regarding Plaintiff's handling of the incident; and Board members Victor Rodriguez and James Short, Jr. The supplemental complaint also included six new claims: three claims of First Amendment retaliation under 42 U.S.C. § 1983,5 a defamation per se claim, a defamation per quod claim, and an equal protection claim under 42 U.S.C. § 1985.
According to Plaintiff, Ms. Schmidt violated Plaintiff's First Amendment rights by fabricating a noise complaint against Plaintiff in retaliation for the filing of this lawsuit. Suppl. Compl. ¶¶ 58-63, ECF No. 18-1. Plaintiff alleges that it received a Notice of Status Hearing andShow Cause hearing on March 13, 2013 - approximately one month after Plaintiff filed its first complaint - detailing a noise complaint that allegedly...
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