Deja Vu of Kentucky v. Lexington-Fayette Urban

Decision Date17 April 2002
Docket NumberNo. CIV.A. 01-51-KSF.,CIV.A. 01-51-KSF.
Citation194 F.Supp.2d 606
CourtU.S. District Court — Eastern District of Kentucky

H. Louis Sirkin, Sirkin, Pinales, Mezibov & Schartz, Cincinnati, OH, Bradley J. Shafer, Shafer & Associates, P.C., Lansing, MI, for Plaintiffs.

Edward W. Gardner, Andrea Lynne Weddle, Lexington-Fayette Urban County Government, Lexington, KY, for Defendant.


FORESTER, Chief Judge.

This matter is before the Court upon the following motions: defendant's motion to dismiss [DE # 16] and plaintiffs' motion for summary judgment [DE # 13]. The plaintiffs have responded to the defendant's motion to dismiss and the time has expired for the defendant to file a reply. The plaintiffs' motion for summary judgment is fully briefed.


The plaintiffs seek to declare as unconstitutional, and to enjoin enforcement of, Lexington-Fayette Urban County Ordinance No. 56-97, as amended. This Ordinance, originally passed in 1997, regulates and licenses adult entertainment establishments and adult entertainers. The defendant Lexington-Fayette Urban County Government (hereinafter "LFUCG" or "defendant") amended this ordinance on March 2, 1999, and the amended version was designated at Ordinance No. 47-99 and published on March 10, 1999. The Ordinance was codified into the Lexington-Fayette County Code as Section 14-13, and its original version and all amendments are collectively referred to as the "Ordinance."

Plaintiff Deja Vu of Kentucky, Inc., owns and operates "Deja Vu," an adult cabaret style nightclub located in Lexington, Kentucky. Deja Vu features clothed, nude and semi-nude nonobscene performance dance entertainment. Deja Vu opened to the public in 1995, and has continually operated on the premises since that time. The club does not serve alcoholic beverages.

Plaintiff One Solid, Inc. owns and operates "Solid Platinum," a separate adult cabaret style nightclub located in Lexington. Solid Platinum also features clothed, nude, and semi-nude non-obscene performance dance entertainment, and possesses an alcohol license permitting it to sell alcoholic beverages on the premises.

Plaintiff Jane Roe I is a 22 year old female resident of the Commonwealth of Kentucky. She currently works as an exotic danger at the Deja Vu Club. In 2000, she pled guilty to the possession of two "Ecstasy" tablets in Ohio. This drug possession conviction renders Jane Roe I unable to obtain a license to dance pursuant to provisions of the Ordinance.

Plaintiff Jane Roe II is a 29 year old female resident of the Commonwealth of Kentucky. She also works as a dancer at the Deja Vu Club, and alleges that the Ordinance unconstitutionally infringes on her right to expression.

Separate plaintiffs, none of whom are common to this action, filed suit in Fayette Circuit Court presenting primarily state law challenges to the Ordinance at bar. The Commonwealth of Kentucky Court of Appeals rendered an opinion styled Restaurant Ventures, LLC, et. al. v. Lexington-Fayette Urban County Government, upholding the Ordinance on January 5, 2001. On January 22, 2001, one of the four plaintiff groups in Restaurant Ventures filed a motion for discretionary review with the Kentucky Supreme Court. The Kentucky Supreme Court denied the motion for discretionary review in the state appellate proceeding styled King Kelly, Inc., et. al. v. Lexington-Fayette Urban County Government on December 12, 2001.


The defendant requests that the Court, in its discretion, decline jurisdiction under the Declaratory Judgment Act. In addition, the defendant argues that the Court should dismiss the plaintiffs' claims on the basis of the Younger and Colorado River abstention doctrines, as well as the Pullman deferral doctrine. Finally, the defendant cites the principles of comity, equity and federalism, as well as judicial economy, as bases for the Court to dismiss this case. The defendant's separate arguments for dismissal will be addressed in turn below.

A. Declaratory Judgment Jurisdiction

Under the Federal Declaratory Judgment Act, 28 U.S.C. § 2201, this Court may exercise jurisdiction over declaratory judgment suits, but is "under no compulsion to exercise that jurisdiction." Wilton v. Seven Falls Co., 515 U.S. 277, 278, 115 S.Ct. 2137, 132 L.Ed.2d 214 (1995); Brillhart v. Excess Ins. Co. of America., 316 U.S. 491, 494, 62 S.Ct. 1173, 86 L.Ed. 1620 (1942). The Court considers five factors in deciding whether to exercise discretionary jurisdiction under the Declaratory Judgment Act: (1) whether a judgment would settle the controversy; (2) whether the declaratory judgment action will serve a useful purpose in clarifying the legal relations at issue; (3) whether a declaratory remedy is being used merely for "procedural fencing" type purposes; (4) whether use of the declaratory judgment action would increase friction between federal and state courts and improperly encroach on state jurisdiction; and (5) whether there is an alternative remedy that is better or more effective. See e.g., Omaha Prop. & Cas. Ins. Co. v. Johnson, 923 F.2d 446, 448 (6th Cir.1991); see also State Farm Mutual Automobile Ins. Co. v. Brewer, et. al., 778 F.Supp. 925, 928 (E.D.Ky.1991). In addition to consideration of the five listed factors, the Court must make a full inquiry into all relevant considerations. See Allstate Ins. Co. v. Green, 825 F.2d 1061, 1065 (6th Cir.1987).

For the reasons stated below, none of the five discretionary factors weigh in the defendant's favor. The defendant first argues that the decision in the state court action is "broader in scope than this federal proceeding, [and] has settled almost all of the issues raised herein as well as a number of parallel issues involving Kentucky law and the Kentucky Constitution." See defendant's memorandum in support of motion to dismiss, p. 6. The defendant then states that a decision by this Court could "create rather than settle the controversy between the parties." Id. Regardless of the breadth of the Kentucky Appellate decision, numerous federal constitutional claims presented here were not presented to that court and thus were omitted from the court's analysis. For example, the Kentucky appellate opinion does not resolve (or even address) the statutory licensing scheme in terms of First Amendment prior restraint analysis. The present action and the state action do not involve common plaintiffs, only common defendants. Indeed, the present action is a separate "controversy" for declaratory judgment purposes and involves different "legal relations" between different plaintiffs. Regardless, this Court is in a position to clarify the legal relations between the litigants and directly settle the controversy based upon the federal constitutional claims squarely before the Court.

As for the remaining discretionary considerations for declaratory judgment actions, the defendant fails to grasp the fact that this case does not present the federalism issues normally involved with parallel federal and state actions. The obvious reason is that this case involves separate plaintiffs and is not parallel to the state court proceeding raising similar issues. In addition, the defentant cites Hayse v. Wethington, 110 F.3d 18, 20 (6th Cir.1997) for the proposition that "it makes sense to wait for the resolution in the state appellate court, because an appellate court is particularly suited to hearing constitutional questions." Here, the Kentucky appellate decision was rendered on January 5, 2001, and the Kentucky Supreme Court declined discretionary review on December 12, 2001. See plaintiffs' response to defendant's motion to dismiss, Exhibit A. Therefore, there is no pending state court proceeding and federal resolution of the plaintiffs' complaint raising federal claims will not encroach on state jurisdiction because there is no alternative remedy that is more effective for these plaintiffs. Cf. Brillhart 316 U.S. at 495, 62 S.Ct. 1173 ("Ordinarily it would be uneconomical as well as vexatious for a federal court to proceed in a declaratory judgment suit where another suit is pending in a state court presenting the same issues, not governed by federal law, between the same parties.").1

Finally, the defendant analogizes to the Rooker-Feldman doctrine, apparently in an attempt to convince the court that the declaratory judgment action before the Court is being used for "procedural fencing" type purposes. The Rooker-Feldman doctrine, per se, is entirely inapplicable to the case before the Court. Rooker v. Fidelity Trust Co., 263 U.S. 413, 415-16, 44 S.Ct. 149, 68 L.Ed. 362 (1923) and District of Columbia Ct. of Appeals v. Feldman, 460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983), construed together broadly stands for the proposition that a plaintiff may not directly appeal a case decided in state court to the lower federal courts. See Gottfried v. Medical Planning Services, Inc., 142 F.3d 326, 330 (6th Cir. 1998). Obviously, the Rooker-Feldman doctrine does not apply when the plaintiff in the federal lawsuit was not the plaintiff in the state court action. As explained by the Sixth Circuit:

As we stated in United States v. Owens, 54 F.3d 271 (6th Cir.1995), `Clearly, a party cannot be said to be appealing a decision by a state court when it was not a party to the case. The Rooker-Feldman doctrine does not apply to bar a suit in federal court brought by a party that was not a party in the preceding action in state court.' Id. at 274. Because Gottfried was not a party to the lawsuit underlying the state court injunction, Rooker-Feldman does not bar the case any more than res judicata and collateral estoppel do.

Gottfried, 142 F.3d at 330.

Apparently, the defendant is attempting to argue that by analogy, the plaintiffs are avoiding the spirit of the Rooker-Feldman doctrine by...

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