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Harrington v. Hall County Nebraska

United States District Court, D. Nebraska

July 1, 2016

SHANE HARRINGTON, Plaintiff,
v.
HALL COUNTY NEBRASKA, a municipal entity; KEITH BAUMFALK, individually and in their official capacities; JOHN JOE, AND JANE DOES, 1-1000, Defendants.

          FINDINGS, RECOMMENDATION, AND ORDER

          CHERYL R. ZWART UNITED STATES MAGISTRATE JUDGE

         This matter is before the court on Plaintiff’s motion to amend his complaint. (Filing No. 135). For the reasons set forth below, the motion for leave to amend should denied.

         BACKGROUND

         Plaintiff Shane Harrington filed his initial complaint in this matter on May 15, 2015. (Filing No. 1). The initial complaint raised numerous allegations against multiple defendants claiming Defendants were unlawfully impeding his ability to open an adult entertainment venue in Hall County, Nebraska, and Harrington had incurred damages as a result of this conduct. Various named defendants filed motions to dismiss. With respect to defendant Hall County, Nebraska, Harrington’s initial complaint alleged the county’s zoning ordinances violated his First Amendment right to free speech, the Establishment Clause, the Equal Protection Clause of the Fourteenth Amendment, the Due Process Clause of the Fourteenth Amendment, and anti-trust statutes. The initial complaint also alleged common law claims for defamation, interference with a business relationship, infliction of emotional distress, negligence, and negligent hiring, supervision, and training.

         All claims within Plaintiff’s initial complaint were dismissed. (Filing No. 132). Judge Gerrard’s order of dismissal further stated:

The plaintiff may file a new motion to amend his complaint by April 21, 2016, provided his proposed amended complaint takes into consideration the principles and analysis set forth above. To the extent the plaintiff believes there are any claims or allegations in his previously filed proposed amended complaint that could survive a motion to dismiss, he may reassert those claims and allegations.

Filing No. 132 at CM/ECF p. 30, ¶9.

         On April 5, 2016, Harrington filed an amended complaint naming only Hall County, Nebraska; the Law Office of Scott D. Bergthold; and attorney Scott D. Bergthold as defendants. (Filing No. 135). Harrington then moved to strike his filed amended complaint, moved for leave to file an amended complaint, (Filing No. 135), and then filed a motion to amend his motion for leave to file an amended complaint. (Filing No. 138). In the end, the operative proposed amended complaint is Filing No. 138-1, and it names Harrington and Midwest Girls Club as plaintiffs and Hall County, Nebraska as the sole defendant. (Filing No. 138-1).

         The proposed amended complaint alleges the Hall County zoning amendments passed in 2015 are vague, overbroad, and violate Plaintiffs’ rights of association, assembly, and free speech.[1] (Filing No. 138-1 at CM/ECF p. 4, ¶ 14). Specifically, Plaintiffs allege they are “prohibited from assembling, associating, and engaging in free speech, free expression, nudity, sexual contact, or non-sexual contact in Hall County . . . .” (Filing No. 138-1 at CM/ECF p. 5, ¶ 18.) Claims one through six of the proposed amended complaint purport to address the alleged constitutional deficiencies of the initial complaint as previously identified by Judge Gerrard. Plaintiffs’ seventh claim raises various alleged violations of Plaintiffs’ right to equal protection, and the eighth claim alleges Defendant violated the Twenty-First Amendment. The remaining claims are based on Nebraska law: Claim nine alleges violations of the Nebraska Open Meetings Act, and claims ten and eleven allege negligence claims.

         ANALYSIS

         If the time for amending a pleading of a matter of course has expired, or a party has previously amended the complaint, a pleading may be amended only if the opposing party consents or with leave of court. Fed.R.Civ.P. 15. Courts are encouraged to allow amendments liberally, (see Shen v. Leo A. Daly Co., 222 F.3d 472, 478 (8th Cir. 2000), but there is no absolute right to amend a pleading. Hammer v. City of Osage Beach, Mo., 318 F.3d 832, 844 (8th Cir. 2003). Leave to amend may be denied for good reason, including “undue delay, bad faith or dilatory motive, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the non-moving party, or futility of amendment[.]” Kozohorsky v. Harmon, 332 F.3d 1141, 1144 (8th Cir. 2003).

         Leave to amend should be denied as futile “where the proposed amendment would not cure the defect the party sought to correct.” Asbury Square, L.L.C. v. Amoco Oil Co., 218 F.R.D. 183, 195 (S.D. Iowa 2003); see also Mississippi River Revival, Inc. v. City of Minneapolis, 319 F.3d 1013, 1018 (8th Cir. 2003); K-tel, Int'l, Inc., 300 F.3d at 899; Wiles v. Capitol Indemnity Corp., 280 F.3d 868, 871 (8th Cir. 2002); Ingrim v. State Farm Fire & Cas. Co., 249 F.3d 743, 745-46 (8th Cir. 2001). That is, “a court may deny a motion for leave to amend for futility if the proposed amendments would not save the party's claim from dismissal.” Asbury Square, L.L.C., 218 F.R.D. at 195 (citing Mississippi River Revival, Inc., 319 F.3d at 1018).

         In this case, Defendant essentially argues the proposed amended complaint is futile because it reasserts the claims previously dismissed by the court without curing the fatal defects. The court will address each of the proposed claims below.

         Claims One through Six: Constitutional Challenges to Zoning Ordinances

         The first six claims in the proposed amended complaint allege constitutional violations based on Hall County’s zoning restrictions. Defendant argues Plaintiffs do not have standing to bring these claims. And, Defendant further argues, because Judge Gerrard previously determined Plaintiff Harrington lacked standing to challenge Hall ...


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