United States District Court, D. Nebraska
SHANE HARRINGTON, H & S CLUB OMAHA, INC., MELTECH, INC., and MIDWEST GIRLS CLUB, Plaintiffs,
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.
MEMORANDUM AND ORDER
Smith Camp Senior United States District Judge
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.
following facts are those alleged in the Amended Complaint,
ECF No. 54, and assumed true for purposes of the pending
motions to dismiss.
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.
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).
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 Court(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. Plaintiffs appealed the State
Court's judgment to the Nebraska Court of Appeals, and
that appeal is currently pending.
August 14, 2018, the Omaha City Council passed Ordinance
#41532 (the Bottle Club Ordinance), which amended several
sections 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
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.
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.
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. 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
of Subject-Matter Jurisdiction-Fed. R. Civ. P.
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, 711
F.3d 844, 861 (8th Cir. 2013) (citing Osborn, 918
F.2d 724, 730). The plaintiff has the burden of proving
jurisdiction exists; “[h]owever, the ‘heavy'
burden of proving mootness falls on the party asserting the
case has become moot.” Kennedy Bldg. Assocs. v.
Viacom, Inc., 375 F.3d 731, 745 (8th Cir. 2004) (citing
Cty. of Los Angeles v. Davis, 440 U.S. 625, 631
(1979)). “Once the evidence is submitted, the district
court must decide the jurisdictional issue, not simply rule
that there is or is not enough evidence to have a trial on
the issue.” Osborn, 918 F.2d at 730.
to State a Claim-Fed. R. Civ. P. 12(b)(6)
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). To satisfy this
requirement, a plaintiff must plead “enough facts to
state a claim to relief that is plausible on its face.”
Corrado v. Life Inv'rs Ins. Co. of Am., 804 F.3d
915, 917 (8th Cir. 2015) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). “A claim has
facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
Barton v. Taber, 820 F.3d 958, 964 (8th Cir. 2016)
(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009)). “Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do
not suffice.” Zink v. Lombardi, 783 F.3d 1089,
1098 (8th Cir. 2015) (quoting Iqbal, 556 U.S. at
678), cert. denied, 135 S.Ct. 2941 (2015). The
complaint's factual allegations must be “sufficient
to ‘raise a right to relief above the speculative
level.'” McDonough v. Anoka Cty., 799 F.3d
931, 946 (8th Cir. 2015) (quoting Twombly, 550 U.S.
at 555). The Court must accept factual allegations as true,
but it is not required to accept any “legal conclusion
couched as a factual allegation.” Brown v. Green
Tree Servicing LLC, 820 F.3d 371, 373 (8th Cir. 2016)
(quoting Iqbal, 556 U.S. at 678). Thus, “[a]
pleading that offers ‘labels and conclusions' or
‘a formulaic recitation of the elements of a cause of
action will not do.'” Ash v. Anderson
Merchandisers, LLC, 799 F.3d 957, 960 (8th Cir. 2015)
(quoting Iqbal, 556 U.S. at 678), cert.
denied, 136 S.Ct. 804 (2016).
motion to dismiss, courts must rule “on the assumption
that all the allegations in the complaint are true, ”
and “a well-pleaded complaint may proceed even if it
strikes a savvy judge that actual proof of those facts is
improbable, and ‘that a recovery is very remote and
unlikely.'” Twombly, 550 U.S. at 555, 556
(quoting Scheuer v. Rhodes, 416 U.S. 232, 236
(1974)). “Determining whether a complaint states a
plausible claim for relief . . . [is] a context-specific task
that requires the reviewing court to draw on its judicial
experience and common sense.” Mickelson v. Cty. of
Ramsey, 823 F.3d 918, 923 (8th Cir. 2016) (alteration in
original) (quoting Iqbal, 556 U.S. at 679).
State Defendants' Motion to Dismiss
Plaintiffs' claims against the State Defendants will be
dismissed under either Rule 12(b)(1) for lack of
subject-matter jurisdiction or Rule 12(b)(6) for failure to
state a claim upon which relief can be granted.
Eleventh Amendment Sovereign Immunity
Amended Complaint enumerates twenty causes of action, sixteen
of which are asserted against one or more of the State
Defendants who are Nebraska state government officials. As
such, the Court will first address the threshold issue of
state sovereign immunity under the Eleventh Amendment.
the Eleventh Amendment and constitutional principles of
sovereign immunity, ‘an unconsenting State is immune
from suits brought in federal courts by her own citizens as
well as by citizens of another state.'”
Fryberger v. Univ. or Ark., 889 F.3d 471, 473 (8th
Cir. 2018) (quoting Port Auth. Trans-Hudson Corp. v.
Feeney, 495 U.S. 299, 304 (1990)). “Congress can
abrogate sovereign immunity, like it has for claims filed
pursuant to 42 U.S.C. § 1983,  or states can waive
sovereign immunity, but in the absence of such abrogation or
waiver, sovereign immunity bars all suits.” Montin
v. Moore, 846 F.3d 289, 292-93 (8th Cir. 2017).
Plaintiffs may also seek prospective injunctive relief
“in federal court from state officials sued in their
official capacities, notwithstanding the state's
sovereign immunity, under Ex Parte Young, 209 U.S.
123, [ ] (1908).” Bennie v. Munn, 822 F.3d
392, 397 (8th Cir. 2016). The Ex Parte Young
exception to state sovereign immunity is not, however,
applicable “to suits brought against state officials
alleging violations of state law.” Frew ex
rel. Frew v. Hawkins, 540 U.S. 431, 439 (2004) (emphasis
added) (citing Pennhurst State Sch. and Hosp. v.
Halderman, 465 U.S. 89, 106 (1984)); see also Greene
v. Dayton, 806 F.3d 1146, 1150 (8th Cir. 2015)
(“[F]ederal courts are unable to order state officials
to conform their conduct to state law.”) (citing
Pennhurst, 465 U.S. at 106)).
their Fourth Cause of Action, Plaintiffs claim Defendants
Thibodeau, Brooks, and Blood, each Nebraska State Senators,
“defamed Harrington on 3/28/18, with actual malice, on
the Nebraska Senate Floor during a hearing regarding LB 1132
in violation of [Neb. Rev. Stat.] § 25-839.” Am.
Compl. ¶ 127, ECF No. 54, Page ID 293. In their Sixth
Cause of Action, Plaintiffs claim the same senators placed
Harrington in a false light with certain statements made on
the Nebraska Senate Floor on 3/28/18. Id. at ¶
135, Page ID 296. In their Twentieth Cause of Action,
Plaintiffs claim, in part, Defendant Ricketts, the Governor
of Nebraska, negligently hired Senator Thibodeau and
negligently appointed Judge Strong to the Lancaster County
District Court. Id. at ¶ 260-61, Page ID 314.
Because the alleged acts or omissions that are the bases for
these claims occurred in the scope of state employment, the
claims are against Thibodeau, Brooks, Blood, and Ricketts in
their official capacities. Montin, 846 F.3d at 292-93
(citing Bohl v. Buffalo Cty., 557 N.W.2d 668, 673
false-light claim is based on the same statements and
comments which are the basis of their defamation claim. The
false-light claim is, therefore, subsumed within the
defamation claim,  Moats v. Republican Party of
Neb., 796 N.W.2d 584, 598 (Neb. 2011), and “[i]t
is clear that the State [of Nebraska] has not waived its
sovereign immunity with respect to claims against its
officers and employees who, while acting in the scope of
their duties, are alleged to have committed libel[ ] [or]
slander[.]” Bojanski v. Foley, 798 N.W.2d 134,
144 (Neb. Ct. App. 2011) (citing Neb. Rev. Stat. § 81-8,
219(4)). As such, Plaintiffs' Fourth and Sixth Causes of
Action will be dismissed, without prejudice, for lack of
subject-matter jurisdiction. Lors v. Dean, 746 F.3d
857, 861 (8th Cir. 2014) (“sovereign immunity . . . is
a jurisdictional threshold matter) (internal quotation
omitted) (alteration in original).
negligence claim against Ricketts is similarly barred by
sovereign immunity unless Nebraska waived its immunity. But,
even if it had, Plaintiffs failed to comply with the Nebraska
State Tort Claims Act (NSTCA) when they brought this claim in
federal court. See Montin, 846 F.3d at 292-93
(citing Neb. Rev. Stat. § 81-8, 214 (requiring all
claims under Nebraska's State Tort Claims Act be brought
in state district court)). Thus, under either the Eleventh
Amendment or the NSTCA, this Court lacks subject-matter
jurisdiction over Plaintiffs' Twentieth Cause of Action,
as asserted against Defendant Ricketts, and it will be
dismissed to that extent, without prejudice. See id.
Other State-Law Claims
Third,  Eighteenth, and Nineteenth Causes of
Action seek declaratory and injunctive relief based
exclusively on the interpretation of a Nebraska state
statute-Third Cause of Action-or on allegations that certain
provisions of the NLCA violate Nebraska's
constitution-Eighteenth and Nineteenth Causes of Action.
Thus, these claims are barred by Eleventh Amendment sovereign
immunity and will be dismissed, without prejudice, for lack
of subject-matter jurisdiction. See McDaniel v.
Precythe, 897 F.3d 946, 952 (8th Cir. 2018) (quoting
Verizon Md. Inc. v. Pub. Serv. Comm'n of Md.,
535 U.S. 635, 645 (2002) (“In determining whether the
doctrine of Ex parte Young avoids an Eleventh
Amendment bar to suit, a court need only conduct a
straightforward inquiry into whether the complaint alleges an
ongoing violation of federal law and seeks relief
properly characterized as prospective.”) (emphasis
Tenth, Twelfth, Thirteenth, Fourteenth, Fifteenth, Sixteenth,
and Seventeenth Causes of Action all seek, in part,
declaratory and injunctive relief based on claims that
various provisions of the NLCA violate both the U.S. and
Nebraska constitutions. Under Eleventh Amendment sovereign
immunity, the Court lacks subject-matter jurisdiction over
these claims to the extent they are based on violations of
state law. McDaniel, 897 F.3d at 952; see also
Greene, 806 F.3d at 1150 (citing Pennhurst, 465
U.S. at 106). Accordingly, those aspects of Plaintiffs'
Tenth, Twelfth, Thirteenth, Fourteenth, Fifteenth, Sixteenth,
and Seventeenth Causes of Action which seek equitable relief
based on an allegation that the NLCA violates Nebraska state
law will be dismissed, without prejudice. They will also be
dismissed, without prejudice, to the extent they seek money
damages. See Coleman v. Court of Appeals of Md., 566
U.S. 30, 35 (2012); Yamaha Motor Corp., U.S.A. v.
Stroud, 179 F.3d 598, 603-04 (8th Cir. 1999).
The Rooker-Feldman Doctrine
previously pursued many of their claims against some of the
State Defendants in state court and received an unfavorable
judgment prior to initiating this federal action.
See Attach. State Ct. Order. Their Seventh Cause of
Action requests “a declaratory judgment enjoining
Defendants from enforcing [the State Court's judgment]
against Plaintiffs and monetary and punitive damages against
[Judge] Strong in her individual capacity.” Am. Compl.
¶ 155, ECF No. 54, Page ID 302. Under the
Rooker-Feldman doctrine, the Court lacks
subject-matter jurisdiction over this cause of action.
See generally King v. City of Crestwood, 899 F.3d
643, 647 (8th Cir. 2018); 18B Charles Alan Wright &
Arthur R. Miller, Federal Practice and Procedure
§ 4469.1 (2d ed.).
Rooker-Feldman doctrine ‘recognizes that, with
the exception of habeas corpus petitions, lower federal
courts lack subject matter jurisdiction over challenges to
state court judgments.'” King, 899 F.3d at
647 (quoting Lemonds v. St. Louis Cty., 222 F.3d
488, 492 (8th Cir. 2000)). This doctrine is narrow and
“confined to ‘cases brought by state-court losers
complaining of injuries caused by state-court judgments
rendered before the district court proceedings commenced and
inviting district court review and rejection of those
judgments.'” Shelby Cty. Health Care Corp. v.
S. Farm Bureau Cas. Ins. Co., 855 F.3d 836, 840 (8th
Cir. 2017) (quoting Exxon Mobil Corp. v. Saudi Basic
Indus. Corp., 544 U.S. 280, 284 (2005)).
lost their state-court action, and, with this claim, they
complain of injuries caused by the State Court's
judgment, which was rendered before this federal action
commenced. They invite this court to review and reject that
judgment. This claim is, therefore, one of the few claims
that falls within the narrow confines of the
Rooker-Feldman doctrine, and the Court will dismiss
it, without prejudice, for lack of subject-matter
jurisdiction. Shelby Cty. Health Care Corp., 855
F.3d at 840 (quoting Exxon Mobil Corp., 544 U.S. at
Judge Strong is entitled to judicial immunity with respect to
any claims against her in her individual capacity because
none of her judicial actions was taken in the complete
absence of all jurisdiction. See Woodworth v.
Hulshof, 891 F.3d 1083, 1091 (8th Cir. 2018) (quoting
Schottel v. Young, 687 F.3d 370, 373 (8th Cir.
2012)); Penn v. United States, 335 F.3d 786, 789
(8th Cir. 2003).
Res Judicata-Claim Preclusion
asserted against the State Defendants, Plaintiffs' Tenth,
Twelfth, Thirteenth, Fourteenth, Fifteenth, Sixteenth, and
Seventeenth Causes of Action claim certain aspects of the
NLCA violate various provisions of the U.S. and Nebraska
Constitutions. The Court need only address these
claims insofar as they allege violations of the U.S.
Constitution. See supra Section I.A.2. (finding the
Court lacks subject-matter jurisdiction over these claims to
the extent they allege violations of the Nebraska
enacting the Full Faith and Credit Statute, 28 U.S.C. §
1738, ‘Congress has specifically required all federal
courts to give preclusive effect to state-court judgments
whenever the courts of the State from which the judgments
emerged would do so.'” Laase v. Cty of
Isanti, 638 F.3d 853, 856 (8th Cir. 2011) (quoting
Allen v. McCurry, 449 U.S. 90, 96 (1980)).
“The law of the forum that rendered the first judgment
controls the res judicata analysis.” Id.
(quoting St. Paul Fire and Marine Ins. Co. v. Compaq
Comput. Corp., 539 F.3d 809, 821 (8th Cir. 2008)). The
State Court previously rendered a judgment on several claims
which the Plaintiffs reassert in this action, and,
“[u]nder Nebraska law, claim preclusion bars
relitigation of any right, fact, or matter directly addressed
or necessarily included in a former adjudication if (1) the
former judgment was rendered by a court of competent
jurisdiction, (2) the former judgment was a final judgment,
(3) the former judgment was on the merits, and (4) the same
parties or their privies were involved in both
actions.” Hill v. AMMC, Inc., 915 N.W.2d 29,
33 (Neb. 2018). “The doctrine bars relitigation not
only of those matters actually litigated, but also of those
matters which might have been litigated in the prior
action.” Fetherkile v. Fetherkile, 907 N.W.2d
275, 286 (Neb. 2018).
their prior state-court action, Plaintiffs specifically
asserted ten separate claims that certain aspects of the NLCA
violated various provisions of the U.S. and Nebraska
Constitutions, many of which are reasserted in this action.
Compare Attach. State Ct. Order, with Am.
Compl., ECF No. 54 (asserting several of the same
constitutional challenges to the NLCA). To the extent those
ten claims sought declaratory and injunctive relief against
state officials, in their official capacities, the State
Court dismissed them for failure to state a claim upon which
relief can be granted. See Calzone v. Hawley, 866
F.3d 866, 869 (8th Cir. 2017) (“A suit for injunctive
or declaratory relief avoids [Eleventh Amendment] immunity if
the [state] official has some connection to the enforcement
of the challenged laws.”). To the extent those
claims sought relief against the State of Nebraska and its
agencies, including money damages against state officials in
their official capacities, the State Court expressly
dismissed those claims under the Eleventh Amendment for lack
of subject-matter jurisdiction. See Id. Plaintiffs
appealed the State Court's judgment to the Nebraska Court
of Appeals, and that appeal is currently pending.
the State Court rendered a final judgment on the merits with
respect to the ten claims which challenged the
constitutionality of the NLCA and sought declaratory and
injunctive relief against state officials. See Attach. State
Ct. Order., pgs. 5-21 (enumerating ten constitutional claims
and dismissing each for failure to state a claim); Riddle
v. CharterWest Bank, 8:18-CV-17, 2018 WL 2120390, at *4
(D. Neb. May 8, 2018) (citing Cole v. Clarke, 641
N.W.2d 412, 416 (Neb. Ct. App. 2002) (“A judgment of
dismissal based on the failure of a claimant to state a cause
of action is considered a judgment on the merits even where
by amendments a good cause of action might be
stated.”). The State Court was also a court of
competent jurisdiction, see Neb. Rev. Stat. §
24-302, and Plaintiffs' pending appeal does not affect
the finality of the State Court's judgment, Cf.
Peterson v. Neb. Nat. Gas Co., 281 N.W.2d 525, 527-28
(Neb. 1979); see also Restatement (Second) of
Judgments § 13 cmt. f (Am. Law Inst. 1982). Further, the
Court finds that the parties in this action are either the
same or in privity with those in Plaintiffs' prior
Tenth, Twelfth, Thirteenth, Fourteenth, Fifteenth, Sixteenth,
and Seventeenth Causes of Action either reassert the same
constitutional challenges to the NLCA which were previously
asserted in Plaintiffs' state-court action, or they
assert a constitutional challenge to the NLCA which could
have been asserted in Plaintiffs' state-court action.
These claims are, therefore, barred by the doctrine of claim
preclusion to the extent they are asserted against the State
Defendants for declaratory and injunctive relief, and they
will be dismissed, with prejudice, to that extent. These
claims will also be dismissed to the extent they seek money
damages. See Coleman, 566 U.S. at 35;
Stroud, 179 F.3d at 603-04.
argument that the State Court's judgment was not on the
merits because that court lacked subject-matter jurisdiction
over the claims fails to distinguish between the claims that
were dismissed under the Eleventh Amendment and the claims
that were dismissed on the merits. Although a dismissal based
on lack of subject-matter jurisdiction is not a judgment on
the merits, Kerndt v. Ronan, 458 N.W.2d 466, 469-70
(Neb. 1990), the State Court did not find that it lacked
subject-matter jurisdiction over the above-mentioned claims
entirely. As noted above, the State Court held, under
Eleventh Amendment sovereign immunity, that it lacked
subject-matter jurisdiction only over the claims against the
State of Nebraska and its agencies, including claims for
money damages against state officials, in their official
capacities. It addressed and dismissed the claims against
state officials for declaratory and injunctive relief on the
merits. Thus, Plaintiffs' argument fails.
Federal Statutory Claims
Eighth Cause of Action is duplicative, and their Ninth Cause
of Action fails to state a plausible claim for relief.
Eighth Cause of Action is titled “Additional Violations
of 42 U.S.C. § 1983” and alleges “Defendants
violated the rights of Plaintiffs guaranteed under Federal
and State law, including 42 U.S.C. § 1983, the First,
Fourth, and Fourteenth Amendment to the U.S. Constitution,
Article I, § 3, Article I, § 5, and Article I,
§ 7 of the Nebraska Constitution[.]” Am. Compl.
¶ 156, ECF No. 54, Page ID 302. This claim is repetitive
of Plaintiffs' other, separately enumerated claims;
§ 1983 does not provide a claim for violations of state
law, Doe v. Gooden, 214 F.3d 952, 955 (8th Cir.
2000); and, “[s]tanding alone, [§] 1983 does not
establish any substantive rights[, ]” Henley v.
Brown, 686 F.3d 634, 640 (8th Cir. 2012).
Plaintiffs' Eighth Cause of Action, as asserted against
the State Defendants, will, therefore, be dismissed, without
Ninth Cause of Action alleges the State Defendants conspired
to violate Plaintiffs' rights under 42 U.S.C.
§§ 1985(2) and (3). To state a conspiracy claim
under § 1985, “a plaintiff ‘must allege with
particularity and specifically demonstrate with material
facts that the defendants reached an agreement.'”
Kelly v. City of Omaha, 813 F.3d 1070, 1077-78 (8th
Cir. 2016) (quoting City of Omaha Emps. Betterment
Ass'n v. City of Omaha, 883 F.2d 650, 652 (8th Cir.
1989)). “This standard requires that ‘allegations
of a conspiracy be pleaded with sufficient specificity and
factual support to suggest a meeting of the minds directed
toward an unconstitutional action.'” Id.
(quoting Nelson v. City of McGehee, 876 F.2d 56, 59
(8th Cir. 1989)). Although the Amended Complaint makes many
general allegations of a widespread conspiracy, the Court
finds that Plaintiffs failed to allege sufficient facts to
satisfy this pleading standard and this claim will be
dismissed, without prejudice, as asserted against the State
Defendants, in their individual capacities. To the extent
this claim is asserted against the State Defendants in their
official capacities, and thereby against the State of
Nebraska, it is dismissed, without prejudice, under Eleventh
Amendment sovereign immunity.
City Defendants' ...