Harrington v. Strong

Decision Date29 January 2019
Docket Number8:18CV383
Citation363 F.Supp.3d 984
CourtU.S. District Court — District of Nebraska
Parties Shane HARRINGTON, H & S Club Omaha, Inc., Meltech, Inc., and Midwest Girls Club, Plaintiffs, v. Susan STRONG, Pete Ricketts, Theresa Thibodeau, Patty Pansing Brooks, Doug Peterson, Hobert Rupe, Robert Batt, John Bolduc, Brenda Konfrst, Jean Stothert, Todd Schmaderer, Ken Kanger, Michelle Bang, Colene Hinchy, Paul Kratz, Aimee Melton, Chris Jerram, John and Jane Doe Nebraska State Patrol Officers #1-#800, in Their Individual Capacities and Official Capacities as Employees of the State of Nebraska; the City of Omaha Nebraska, John Doe Omaha Building Inspectors #1 and #2, John Doe Omaha Police Officers #1 - #9, in Their Individual Capacities and Official Capacities as Employees of the City of Omaha Nebraska; John and Jane Doe Omaha Police Officers #1 - #900, in Their Individual Capacities and Official Capacities as Employees of the City of Omaha Nebraska; Carol Blood, William Acosta-Trejo, and Fender, Omaha Police Officer, Defendants.

Evan Spencer, New York, NY, Travis J. Penn, Penn Law Firm, Omaha, NE, for Plaintiffs.

Benjamin M. Goins, Ryan S. Post, Attorney General's Office - Nebraska, Lincoln, NE, Michelle A. Peters, City Of Omaha, Omaha, NE, for Defendant.


Laurie Smith Camp, Senior United States District JudgeThis matter is before the Court on the Amended Motion to Dismiss, ECF No. 57, filed by Defendants Michelle Bang, Colene Hinchy, Chris Jerram, Ken Kanger, Paul Kratz, Aimee Melton, Todd Schmaderer, Jean Stothert, William Acosta-Trejo, Fender, and the City of Omaha (collectively, the City Defendants). Also before the Court is the Motion to Dismiss, ECF No. 59, filed by Defendants Robert Batt, Carol Blood, John Bolduc, Patty Pansing Brooks, Brenda Konfrst, Doug Perterson, Pete Ricketts, Hobert Rupe, Susan Strong, and Theresa Thibodeau (collectively, the State Defendants). For the reasons stated below, the Motions will be granted.


The following facts are those alleged in the Amended Complaint, ECF No. 54, and assumed true for purposes of the pending motions to dismiss.1

Plaintiff Shane Harrington is a resident of Omaha, Nebraska, and the principal officer of Plaintiffs H & S Club Omaha, Inc., Midwest Girls Club, and Meltech, Inc., which are Nebraska corporations. In March 2017, H & S Club Omaha, Inc., executed a three-year lease for the property at 7301 Farnam Street in Omaha and opened a private-member establishment called Club Omaha. Club Omaha offers live nude dancing as its primary form of entertainment, and although Club Omaha never sold or otherwise provided alcohol to its members, it permitted members to bring in their own alcohol for consumption prior to the enactment of the legislation described below. Club Omaha's membership includes persons under the age of twenty-one. Plaintiffs Midwest Girls Club and Meltech, Inc., separately owned and operated similar establishments in other Nebraska municipalities outside of Omaha, but those clubs are no longer in operation.

Before H & S Club Omaha, Inc., executed its lease in March 2017, Plaintiffs' counsel exchanged emails with the Omaha City Attorney's office regarding state and local laws applicable to "sexually oriented business[es]" and businesses which permit customers to bring in their own alcohol for consumption. Id. at ¶ 2, Page ID 279. Plaintiffs alleged that in these email communications, City Defendants Paul Kratz, the Omaha City Attorney, and William Acosta-Trejo, an Assistant City Attorney, "gave Plaintiffs consent to open Club Omaha[.]" Id. (alleging email communications occurred on October 25, 2016, October 31, 2016, and January 30, 2017, and alleging the content of the October 31, 2016, email).

On April 18, 2018, the Nebraska Legislature passed L.B. 1120, which amended the Nebraska Liquor Control Act (NLCA), Neb. Rev. Stat. § 53-101 to § 53-1,122, and included new licensure requirements and regulations for "bottle clubs." Neb. Laws L.B. 1120, 106th Leg. Second Reg. Sess. (2018). A bottle club is any "operation ... keeping and maintaining premises where persons who have made their own purchases of alcoholic liquor congregate for the express purpose of consuming alcoholic liquor upon the payment of a fee or other consideration." Neb. Rev. Stat. § 53-103.47. Plaintiffs filed a complaint in the District Court for Lancaster County, Nebraska, on July 3, 2018, and sought to enjoin enforcement of L.B. 1120, which took effect on July 19, 2018. Plaintiffs claimed L.B. 1120 violated several provisions of the U.S. and Nebraska Constitutions and that Club Omaha did not constitute a bottle club. The Lancaster County District Court2 (State Court) dismissed Plaintiffs' amended complaint on July 18, 2018, finding Plaintiffs' claims against the State of Nebraska were barred by Eleventh Amendment sovereign immunity and that their claims for declaratory and injunctive relief failed to state claims for relief.3 Plaintiffs appealed the State Court's judgment to the Nebraska Court of Appeals, and that appeal is currently pending.

On August 14, 2018, the Omaha City Council passed Ordinance # 41532 (the Bottle Club Ordinance), which amended several sections4 of Chapter 15 of the Omaha Municipal Code—titled Liquors—to make those sections applicable to bottle clubs, specifically. Omaha, NE, Municipal Code § 15-1 et seq. As amended by the Bottle Club Ordinance, § 15-42 permits, but does not require, the city council to revoke a bottle club license if the licensee offers live nude dancing on the licensed premises. Previously, on May 16, 2017, the Omaha City Council also passed Ordinance # 41153 (the Nuisance Ordinance), which amended §§ 18-90 and 18-91 of Chapter 18 of the Omaha Municipal Code—titled Nuisances—to make them applicable to businesses "where alcoholic liquor is served or consumed while viewing either a live or video performance...." Section 18-91 requires such businesses, as well as those engaged in the retail sale of alcoholic liquors, to comply with listed "nuisance prevention standards." Omaha, NE, Municipal Code § 18-91(a). Accordingly, the effect of the Bottle Club Ordinance and the Nuisance Ordinance (collectively, the Ordinances) was to expand the application of certain, already-existing sections of Chapter 15 and Chapter 18 of the Omaha Municipal Code to bottle clubs and businesses where alcoholic liquor is served or consumed by patrons viewing either a live or video performance.

On July 21, 2018, Harrington and four women stood at the intersection of 72nd and Dodge Streets in Omaha holding signs that read "Honk if you [heart] boobs." The women wore only flesh-colored g-strings and areola pasties, and Harrington wore only underwear. They engaged in this conduct to protest state and municipal laws regulating Club Omaha's business. Police officers with the Omaha Police Department (OPD) arrived at the scene and Defendant Fender, an OPD officer, explained to Harrington that "our command is possibly looking at citing everyone that is involved in this for lewd conduct and indecent exposure ... If our Command says to do it we're going to do it." Am. Compl. ¶ 86, ECF No. 54, Page ID 289. Harrington and the other four protesters stopped protesting and walked back to Club Omaha. Fender and other unnamed OPD officers followed Harrington and the women back to Club Omaha, "walked up the entry stairs of [the] Club Omaha [building], opened the outer door, and occupied the curtilage of the building." Id. ¶ 101, Page ID 291. One or more persons inside the club told the officers they were trespassing and asked them to leave, but the officers "held the exterior door of [the] club open with their boots while they [ ] interrogated the manager on duty and searched the curtilage of the property and the interior of the building from the open entrance door." Id. ¶ 104. The officers also "demanded entry for the purpose of ‘copying everyone's I.D.’ " Id. ¶ 102.

Three days later, on July 24, 2018, the Omaha City Prosecutor issued a statement, published in the Omaha World-Herald newspaper, concluding that the conduct of Harrington and the four women did not violate any municipal laws.

On August 13, 2018, Plaintiffs filed their Complaint with this Court, ECF No. 1, and, the next day, they filed a Motion for Preliminary Injunction and Temporary Restraining Order, ECF No. 5. The Court denied that Motion, Mem. and Order, ECF No. 33, and on October 9, 2018, Plaintiffs filed an Amended Complaint, ECF No. 54, which enumerated twenty separate causes of action under federal and Nebraska state law.5 The State Defendants and the City Defendants now move to dismiss the claims against them under Rule 12(b)(1) and Rule 12(b)(6) of the Federal Rules of Civil Procedure.

Lack of Subject-Matter Jurisdiction— Fed. R. Civ. P. 12(b)(1)

"In order to properly dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), the complaint must be successfully challenged on its face or on the factual truthfulness of its averments." Titus v. Sullivan , 4 F.3d 590, 593 (8th Cir. 1993) ( Osborn v. United States , 918 F.2d 724, 729 n.6 (8th Cir. 1990) ). "In a facial challenge to jurisdiction, the court presumes all of the factual allegations concerning jurisdiction to be true and will grant the motion only if the plaintiff fails to allege an element necessary for subject matter jurisdiction." Young Am. Corp. v. Affiliated Comput. Servs., 424 F.3d 840, 843-44 (8th Cir. 2005) (citing Titus , 4 F.3d at 593 ). In a factual challenge to jurisdiction, "there is substantial authority that the trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case." Osborn , 918 F.2d at 730. "In short, no presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims." Iowa League of Cities v. EPA , ...

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