Mannheim Video, Inc. v. County of Cook

• Decision Date: 14 November 1989
• Docket Number: 89-1060,Nos. 88-3511,s. 88-3511
• Parties: MANNHEIM VIDEO, INC., an Illinois corporation, Plaintiff-Appellant, Cross-Appellee, v. COUNTY OF COOK, a body politic and corporate, Defendant-Appellee, Cross-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1043

884 F.2d 1043

15 Fed.R.Serv.3d 178

MANNHEIM VIDEO, INC., an Illinois corporation, Plaintiff-Appellant, Cross-Appellee, v. COUNTY OF COOK, a body politic and corporate,

Defendant-Appellee, Cross-Appellant.

Nos. 88-3511, 89-1060.

United States Court of Appeals, Seventh Circuit.

Argued June 12, 1989.

Decided Sept. 20, 1989.

Rehearing Denied Nov. 14, 1989.

Michael Null, Reed Lee, Adam Bourgeois, Chicago, Ill., for Mannheim Video, Inc., an Illinois Corp., plaintiff-appellant, cross-appellee.

Madeleine S. Murphy, Asst. State Atty., Office of the State's Atty. of Cook County, Chicago, Ill., for County of Cook, a Body Politic and Corporate, defendant-appellee, cross-appellant.

Before BAUER, Chief Judge, and CUMMINGS and FLAUM, Circuit Judges.

CUMMINGS, Circuit Judge.

Mannheim Video, Inc. appeals the decision of the district court to dismiss its lawsuit sua sponte in favor of a parallel state court action. The defendant County of Cook cross-appeals the district court's decision not to impose sanctions under Rule 11 of the Federal Rules of Civil Procedure. We affirm the district court's decisions in both respects.

I. Procedural History

Mannheim Video ("Mannheim") operates a video arcade and gift shop within Cook County, Illinois. A portion, less than half, of Mannheim's business is comprised of sexually explicit materials, including books, magazines and novelties. The Mannheim video arcade houses individual, coin-operated booths, which feature sexually explicit selections.

Mannheim initiated this lawsuit challenging the constitutionality of Cook County's zoning ordinance, Adult Use Provisions of the County's Zoning Ordinance, C.B. No. 107756 (1981). The zoning ordinance regulates establishments "having as a substantial or significant portion of its stock" materials that are sexually explicit in nature. The ordinance also includes particularized regulations for "adult mini motion picture theatres." Mannheim's three-count complaint sought declaratory and injunctive relief and alleged that: (1) the term "substantial or significant portion of its stock" is unconstitutionally vague; (2) its video viewing booths are not theatres within the definition of the zoning ordinance; and (3) the zoning ordinance otherwise impermissibly infringes upon Mannheim's First Amendment rights.

When Mannheim filed this suit in May 1988, it was already defending a state action brought by the County in April 1987. The state action alleged various infractions of the County's building ordinances. The state action did not allege any violations of the adult use zoning ordinance, presumably because County of Cook v. Renaissance Arcade and Bookstore, 122 Ill.2d 123, 118 Ill.Dec. 618, 522 N.E.2d 73 (1988), in which the Illinois Supreme Court upheld the constitutionality of certain parts of the adult use zoning ordinance, was then pending on appeal in the United States Supreme Court.

Cook County responded to Mannheim's complaint by moving to dismiss each of the three counts contained in the complaint for failing to state a claim upon which relief could be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). Judge Marshall dismissed the second count, finding that Mannheim's video booths fell squarely within the ordinance's definition of a mini theatre. He stayed the third count pending the Supreme Court's disposition of Renaissance Arcade. Finally, Judge Marshall held that the first count stated a valid claim under Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957), and he refused to dismiss that claim. Thus all that remained of Mannheim's suit was a single count alleging that the term "substantial and significant portion" was unconstitutionally vague.

On October 11, 1988, the Supreme Court summarily dismissed the appeal in Renaissance Arcade, sub nom. Mannheim Books v. County of Cook, --- U.S. ----, 109 S.Ct. 209, 102 L.Ed.2d 201. ¹ On October 27, 1988, the County amended its state court complaint against Mannheim, this time including allegations of violations of the adult use zoning ordinance. Besides answering the amended state court complaint and asserting a counterclaim similar to its complaint here, Mannheim moved the district court to enjoin the County from prosecuting the alleged violations of the adult use zoning ordinance in state court, and instead to compel the County to continue to contest the ordinance's validity in federal court. Upon learning that the state action now essentially included the same claim as that being asserted in federal court, Judge Marshall dismissed the federal action in favor of the state action, citing Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971).

II. Younger Abstention

In Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, the Supreme Court held generally that principles of equity, comity and federalism require a federal court to abstain from hearing a federal action challenging the constitutionality of a state criminal statute while the state is prosecuting the federal plaintiff in state court for violating that same statute. Id. at 43-44, 91 S.Ct. at 750. Younger, which involved a state criminal prosecution, has been applied to quasi-criminal actions as well. Ciotti v. County of Cook, 712 F.2d 312, 313 (7th Cir.1983); see also Trainor v. Hernandez, 431 U.S. 434, 97 S.Ct. 1911, 52 L.Ed.2d 486 (1977); Juidice v. Vail, 430 U.S. 327, 97 S.Ct. 1211, 51 L.Ed.2d 376 (1977); Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975).

When the state proceedings follow the initiation of the federal action the district court should look to two factors before deciding whether to abstain. First the court should consider whether the federal plaintiff will have an adequate opportunity to raise its constitutional challenges in the state proceedings. Middlesex County Ethics Committee v. Garden State Bar Ass'n, 457 U.S. 423, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982). Abstention certainly accomplishes nothing if the federal plaintiff cannot even raise its federal constitutional challenges in the state proceeding; it merely delays the inevitable federal action following the state proceeding and postpones the possible vindication of the federal plaintiff's constitutional rights. Second, the district judge must consider the progress of the federal action. The federal action should be dismissed in favor of the state action if there have been no "proceedings on the merits ... in the federal court." Hicks v. Miranda, 422 U.S. 332, 95 S.Ct. 2281, 45 L.Ed.2d 223 (1975); see also Hawaii Housing Authority v. Midkiff, 467 U.S. 229, 104 S.Ct. 2321, 81 L.Ed.2d 186 (1984); Doran v. Salem Inn, Inc., 422 U.S. 922, 929, 95 S.Ct. 2561, 2566, 45 L.Ed.2d 648 (1975) (abstention appropriate when federal action still in an embryonic stage); Ciotti v. County of Cook, 712 F.2d at 313-314; State of Illinois v. General Electric Co., 683 F.2d 206, 212 (7th Cir.1982).

Neither party contends that Mannheim would not have the opportunity to raise its constitutional challenges in the state action, so that only the second criterion under Younger is in dispute. ² Mannheim argues that its federal action had progressed beyond an embryonic stage, see Doran, supra, and that substantial findings on the merits of its constitutional claim had been reached. We disagree.

Mannheim's contention is put to rest by this Court's previous decision in Ciotti, as Judge Marshall recognized. In Ciotti too, a bookstore challenged the constitutionality of the Cook County adult use zoning ordinance. The County unsuccessfully moved to dismiss the case for want of a case or controversy, specifically arguing that the plaintiff lacked standing. The County then filed an action against the federal plaintiff in state court alleging violations of the ordinance. This Court affirmed the district judge's decision in that case to dismiss the federal action under Younger abstention grounds, noting that:

The district court's decision that plaintiffs presented a case or controversy went to the issue of plaintiffs' standing, but it was not a decision relating to the merits of the underlying issue in the case--the constitutionality of the ordinance.

Ciotti, 712 F.2d at 314. Here too the merits of Mannheim's first count had not yet been decided.

Reasoning analogous to Ciotti applies to this case. Mannheim, however, contends that Judge Marshall's consideration of the County's motion to dismiss somehow "reached the merits of Mannheim's constitutional claims" (Br. 12). The federal action had yet to consider anything approaching the merits. All Judge Marshall decided was that the third count was directly dependent upon the Supreme Court's disposition of the Renaissance appeal, that the second count was too insubstantial to merit trial, ³ and that the first count--the only viable count at the time of dismissal--merely satisfied the liberal standards of a complaint under Rule 12(b)(6). As for the only remaining viable issue, Judge Marshall's determination not to dismiss the first count merely meant the County was unable to show "beyond doubt that the plaintiff can prove no set of facts in support of his claim which could entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102. ⁴

As in Ciotti, apart from the district court's decision on the County's motion to dismiss the second count, "the record indicates no other proceedings--for instance, depositions taken, discovery completed, or briefs filed on the issues--that would suggest advancement toward a determination on the merits. The federal proceeding was still in an embryonic stage." Ciotti, 712 F.2d at 314; see also citations therein.

III. Motion For Sanctions

The County also appeals Judge Marshall's refusal to award the County attorneys' fees as sanctions under Rule 11. The County argues that on two occasions attorneys Michael Null and Adam Bourgeois, counsel for Mannheim, failed to cite a relevant case which was adverse to their position. In both...