MIB, LLC v. Field
| Docket Number | 1:23-cv-00001-TWP-TAB |
| Decision Date | 24 August 2023 |
| Parties | MIB, LLC, RYAN POLOKOFF, SABINE KISSEE, Plaintiffs, v. MIKE FIELD individually, and in their official capacities as Members of the Board of Zoning Appeals for the City of Noblesville, Indiana, DAVE BURTNER individually, and in their official capacities as Members of the Board of Zoning Appeals for the City of Noblesville, Indiana, JIM HANLON individually, and in their official capacities as Members of the Board of Zoning Appeals for the City of Noblesville, Indiana, DAN MAC INNIS individually, and in their official capacities as Members of the Board of Zoning Appeals for the City of Noblesville, Indiana, LAUREN WAHL individually, and in their official capacities as Members of the Board of Zoning Appeals for the City of Noblesville, Indiana, CALEB GUTSCHALL individually, and in his official capacity as Director, Department of Planning and Development, City of Noblesville, Indiana, AARON SMITH Individually, and in their Official Capacities Members of the Common Council of the City of Noblesville, DARREN PETERSON Individually, and in their Official Capacities Members of the Common Council of the City of Noblesville, BRIAN AYER Individually, and in their Official Capacities Members of the Common Council of the City of Noblesville, MARK BOICE Individually, and in their Official Capacities Members of the Common Council of the City of Noblesville, MIKE DAVIS Individually, and in their Official Capacities Members of the Common Council of the City of Noblesville, PETE SCHWARTZ Individually, and in their Official Capacities Members of the Common Council of the City of Noblesville, DAN SPARTZ Individually, and in their Official Capacities Members of the Common Council of the City of Noblesville, GREG O'CONNOR Individually, and in their Official Capacities of Members of the Common Council of the City of Noblesville, MEGAN WILES Individually, and in their Official Capacities Members of the Common Council of the City of Noblesville, Defendants. |
| Court | U.S. District Court — Southern District of Indiana |
ORDER ON DEFENDANTS' MOTION TO DISMISS PLAINTIFFS' VERIFIED MOTION FOR IMMEDIATE, EX PARTE TEMPORARY RESTRAINING ORDER, AND DEFENDANTS' MOTION TO EXCLUDE TESTIMONY
This matter is before the Court on a Motion to Dismiss filed by Defendants, who are members and staff of the Noblesville Board of Zoning Appeals ("BZA"), members of the Common Council of the City of Noblesville (the "Council"), and the Director of the Department of Planning and Development for the City of Noblesville (collectively, "Defendants") (Filing No 49). Also before the Court is a Verified Motion for Immediate, Ex Parte Temporary Restraining Order ("Motion for TRO") filed by Plaintiffs MIB, LLC ("MIB"), Ryan Polokoff, and Sabine Kissee (collectively, "Plaintiffs") (Filing No 32) and Defendants' Motion to Exclude Testimony at September 6 Hearing ("Motion to Exclude Testimony") (Filing No. 57).
In November 2020, MIB began operating a business in the City of Noblesville, Indiana ("Noblesville" or the "City"). Plaintiffs initiated this action after the BZA determined that MIB was operating a "Sex Shop," as defined by City ordinance, and prohibited MIB from operating its retail and internet business from its leased property in Noblesville. For the following reasons, the Court grants Defendants' Motion to Dismiss and denies as moot Plaintiffs' Motion for TRO and Defendants' Motion to Exclude Testimony.
The following facts are not necessarily objectively true, but as required when reviewing a motion to dismiss, the Court accepts as true all factual allegations in the complaint and draws all inferences in favor of Plaintiffs as the non-moving party. See Bielanski v. County of Kane, 550 F.3d 632, 633 (7th Cir. 2008).
MIB has operated a retail and internet business, known as "My Inner Baby," from a leased property in Noblesville since November 3, 2020 (Filing No. 34-1 at ¶ 25). MIB primarily sells adult-size baby products, including adult diapers, adult-sized changing pads, other adult incontinence supplies, adult-sized "onesies," baby bottles, rattles, and other baby toys. Id. at ¶¶ 27-28. MIB uses several "hashtags" in its social media posts and marketing materials, including: #CGL (Care Giver/Little); #ddlg (Daddy Dom/Little Girl); and #AB/DL (Adult Baby/Diaper Lover). Id. at ¶¶ 32, 54.
On or about April 26, 2022, MIB received a Letter of Determination from Defendant Caleb Gutshall ("Gutshall"),[1]the Director of the Department of Planning and Development for Noblesville. Id. at ¶ 34. The letter stated the City had made a determination (the "Determination") that MIB was a "Sex Shop" and was selling sexually oriented toys and/or novelties in violation of Article 2 of the Noblesville Unified Development Ordinances (the "UDO"). Id.
MIB appealed the Determination on May 27, 2022. Id. at ¶ 37. On August 1, 2022, the BZA held a public hearing on MIB's appeal. The BZA received evidence and testimony from the City, MIB, and third parties. Id. at ¶¶ 39-45. At the conclusion of the hearing, the BZA voted unanimously to deny MIB's appeal. Id. at ¶ 46. On August 8, 2022, Gutshall sent a letter to MIB stating its appeal had been denied based on his determination that the proposed use of MIB's leased property would fall under the "Sex Shop land use classification" based on the UDO. Id. at ¶¶ 48-50. The City also sent an email to counsel for MIB, stating that e-commerce may not take place at any address subject to zoning enforcement. MIB therefore could not operate its retail or internet business from its leased property in Noblesville. Id. at ¶¶ 51-52.
On August 9, 2022, MIB sought judicial review of the Determination. MIB filed a Verified Petition for Judicial Review in the Hamilton County Circuit Court under Case No. 29C01-2208-PL-005996 (the "State Court Case"). Id. at ¶ 60; MIB LLC v. Board of Zoning Appeals for the City of Noblesville, Indiana, No. 29C01-2208-PL-005996 ("MIB I").[2] MIB named the BZA and Gutshall as defendants.[3]Under Indiana Code § 36-7-4-1613, a petitioner seeking judicial review of a board determination must file an original or certified copy of the board record within thirty days of filing a petition for judicial review, or within further time allowed by the court.
On August 24, 2022, counsel for the BZA informed MIB's counsel that the certified board record would be "available in short order" (Filing No. 34-1 at ¶ 62). BZA's counsel gave no indication that the board record would not be available before September 8, 2022. Id. at ¶ 63. However, MIB did not receive the board record, so on September 9, 2022, MIB filed a certified transcript from the August 1, 2022 public hearing. Id. at ¶ 64. MIB did not request an extension of its deadline to file the original or certified board record. See generally MIB I.
On September 20, 2022, the defendants in the State Court Case moved to dismiss the case, arguing that MIB failed to timely file the board record under Indiana Code § 36-7-4-1613 (Filing No. 341 at ¶ 66).[4] MIB filed a response in opposition on September 29, 2022.[5] On October 10, 2022, the state court granted the motion to dismiss. Id. at ¶ 67.[6]
On January 1, 2023, MIB and its members, Ryan Polokoff and Sabine Kissee, initiated this federal action (Filing No. 1). On May 31, 2023, Plaintiffs filed their Motion for TRO, which is set for hearing on September 6, 2023 (Filing No. 32; Filing No. 40). On July 17, 2023, Defendants filed the instant Motion to Dismiss, which is now fully briefed and ripe for review (Filing No. 49). Defendants recently filed their Motion to Exclude Testimony (Filing No. 57) in preparation for the September 6, 2023 TRO hearing. The Court will address Defendants' Motion to Dismiss and, because Defendants are entitled to judgment, the Court will briefly address Plaintiffs' Motion for TRO and Defendants' Motion to Exclude Testimony.
Federal Rule of Civil Procedure 12(b)(6) allows a defendant to move to dismiss a complaint that has failed to "state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). When deciding a motion to dismiss under Rule 12(b)(6), the Court accepts as true all factual allegations in the complaint and draws all inferences in favor of the plaintiff. Bielanski, 550 F.3d at 633. However, courts "are not obliged to accept as true legal conclusions or unsupported conclusions of fact." Hickey v. O'Bannon, 287 F.3d 656, 658 (7th Cir. 2002).
The complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). In Bell Atlantic Corp. v. Twombly, the United States Supreme Court explained that the complaint must allege facts that are "enough to raise a right to relief above the speculative level." 550 U.S. 544, 555 (2007). Although "detailed factual allegations" are not required mere "labels," "conclusions," or "formulaic recitation[s] of the elements of a cause of action" are insufficient. Id.; see also Bissessur v. Ind. Univ. Bd. of Trs., 581 F.3d 599, 603 (7th Cir. 2009) (). The allegations must "give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Twombly, 550 U.S. at 555. Stated differently, the complaint must include "enough facts to state a claim to relief that is plausible on its face." Hecker v. Deere & Co., 556 F.3d 575, 580 (7th Cir. 2009) (citation and quotation marks omitted). To be facially...
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