Movers Warehouse, Inc. v. City of Little Canada, 95-1380

• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)
• Writing for the Court: Before McMILLIAN, ROSS, and BOWMAN; BOWMAN
• Citation: 71 F.3d 716
• Parties: MOVERS WAREHOUSE, INC., a Minnesota corporation, Appellant, v. CITY OF LITTLE CANADA, a municipal corporation; M.K.P., Inc., a Minnesota corporation, Appellees.
• Docket Number: No. 95-1380,95-1380
• Decision Date: 18 January 1996

Page 716

71 F.3d 716 MOVERS WAREHOUSE, INC., a Minnesota corporation, Appellant,
v.
CITY OF LITTLE CANADA, a municipal corporation; M.K.P.,
Inc., a Minnesota corporation, Appellees. No. 95-1380. United States Court of Appeals,
Eighth Circuit. Submitted Oct. 20, 1995.
Decided Dec. 7, 1995.
Rehearing and Suggestion for Rehearing
En Banc Denied Jan. 18, 1996.

Page 717

Pierre N. Regnier, St. Paul, Minnesota, argued (Thomas M. Countryman and Thomas M. Sweeney, on the brief), for appellee, The City of Little Canada.

Alan Silver, Minneapolis, Minnesota, argued (Todd J. Thun, on the brief), for appellee, M.K.P., Inc.

Before McMILLIAN, ROSS, and BOWMAN, Circuit Judges.

BOWMAN, Circuit Judge.

This case requires us to decide whether, under Minnesota law, a bingo hall operator has a protected property interest in the renewal of its bingo hall license. We conclude that Minnesota law creates no such interest.

From 1986 to 1993 Movers Warehouse, Inc., operated the lone bingo hall in Little Canada, Minnesota. When Movers Warehouse began its bingo hall operation in 1986, Little Canada issued a conditional use permit for the bingo hall. As a result of the adoption of a city ordinance at the same time, only one bingo hall may operate within the city limits. In 1988, the state of Minnesota began regulating bingo halls, and Movers Warehouse was thereafter required to obtain a state license as well as the city's conditional use permit. In 1989, state law was amended to require applicants for bingo hall licenses to submit with their applications a resolution from the municipal authority approving the application. From 1989 to 1992, Movers Warehouse obtained Little Canada's approval of the application for renewal of its state bingo hall license. In 1993, however, the city council did not approve Movers Warehouse's renewal application and instead approved the application of M.K.P., Inc. Movers Warehouse claims that this action of the council deprived it of property without due process of law in violation of the Fourteenth Amendment. Movers Warehouse filed this action under 42 U.S.C. Sec. 1983 (1988) seeking damages and injunctive relief. Little Canada moved for summary judgment, and the District Court ¹ granted the motion. ² We affirm.

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"We review de novo the granting of a summary judgment motion. We will affirm the judgment if the record shows there is no genuine issue of material fact and that the prevailing party is entitled to judgment as a matter of law." Maitland v. University of Minnesota, 43 F.3d 357, 360 (8th Cir.1994) (citations omitted); see also Fed.R.Civ.P. 56(c).

Movers Warehouse argues that summary judgment was improper because there is a factual dispute between the parties as to whether the mayor or city council of Little Canada in 1986 promised Movers Warehouse that (1) it would be able to operate its bingo hall for an "indeterminate" length of time and (2) its conditional use permit would not be terminated unless it engaged in unlawful or improper conduct. We conclude that the alleged factual dispute over what the city promised Movers Warehouse is neither genuine nor material.

First, even if the city promised Movers Warehouse that it could operate its bingo hall for an indeterminate length of time, nothing in the complaint alleges, nor does the record indicate, that the city failed to live up to this promise. "Indeterminate" means "not clearly established" or "not fixed." Webster's Third New Int'l Dictionary 1148 (1981). As the District Court noted, "Warehouse does not provide facts even suggesting the City knew in 1986, when the alleged promise was made, that it then determined it would pass a resolution denying Warehouse's renewal application seven years later." Mem. & Order at 9-10, Movers Warehouse, Inc. v. City of Little Canada, No. 3-93-809 (D.Minn. Jan. 17, 1995) (emphasis in original).

Second, Movers Warehouse presented insufficient evidence of the alleged promise to create a triable issue of fact. Thomas Short, co-owner and chief executive officer of Movers Warehouse and the primary manager of its bingo hall, testified at his deposition that Movers Warehouse's understanding of its alleged agreement with the city is reflected in the minutes of the Little Canada City Council. Deposition of Short at 145-46, reprinted in Appellant's Appendix at 972-73. Movers Warehouse, however, never introduced any city council minutes that reflect Movers Warehouse's understanding of the alleged agreement.

We thus conclude that no genuine disputes of material fact exist that would prevent the entry of summary judgment. Resolution of this appeal requires us to determine only whether, as a matter of law, Movers Warehouse had a property interest in the renewal of its license to operate a bingo hall.

The Fourteenth Amendment prohibits state action that deprives "any person of life, liberty or property, without due process of law." U.S. Const. amend. XIV, Sec. 1. The possession of a protected life, liberty, or property interest is thus a condition precedent to the government's obligation to provide due process of law. In this case, no such interest exists. There is therefore no due process violation.

Movers Warehouse has alleged that it has a protected property interest in the renewal of its bingo hall license. To show the existence of a property interest in the renewal of a license, a person "must have more than a unilateral expectation of it. He [or she] must, instead,...