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Harrington v. Strong

United States District Court, D. Nebraska

January 29, 2019

SHANE HARRINGTON, H & S CLUB OMAHA, INC., MELTECH, INC., and MIDWEST GIRLS CLUB, Plaintiffs,
v.
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

          Laurie Smith Camp Senior United States District Judge

         This 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.

         BACKGROUND

         The following facts are those alleged in the Amended Complaint, ECF No. 54, and assumed true for purposes of the pending motions to dismiss.[1]

         Plaintiff 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.

         Before 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).

         On 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[2](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.[3] Plaintiffs appealed the State Court's judgment to the Nebraska Court of Appeals, and that appeal is currently pending.

         On August 14, 2018, the Omaha City Council passed Ordinance #41532 (the Bottle Club Ordinance), which amended several sections[4] 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 performance.

         On July 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.

         Three 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.

         On 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.[5] 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 Procedure.

         STANDARDS OF REVIEW

         Lack of Subject-Matter Jurisdiction-Fed. R. Civ. P. 12(b)(1)

         “In 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.

         Failure to State a Claim-Fed. R. Civ. P. 12(b)(6)

         A 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).

         On a 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).

         DISCUSSION

         I. State Defendants' Motion to Dismiss

         Each of 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.

         A. Eleventh Amendment Sovereign Immunity

         The 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.

         “Under 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, [6] 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)).

         1. Tort Claims

         In 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.[7] Montin, 846 F.3d at 292-93 (citing Bohl v. Buffalo Cty., 557 N.W.2d 668, 673 (Neb. 1997)).

         Plaintiffs' 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, [8] 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).

         Plaintiffs' 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.

         2. Other State-Law Claims

         Plaintiffs' Third, [9] 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 added)).

         Plaintiffs' 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).

         B. The Rooker-Feldman Doctrine

         Plaintiffs 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.).[10]

         “The 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)).

         Plaintiffs 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 284).

         Further, 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).

         C. Res Judicata-Claim Preclusion

         As 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.[11] 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 Constitution).

         “By 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[12] 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).

         In 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.”).[13] 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.

         Thus, 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[14] with those in Plaintiffs' prior state-court action.

         The 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.

         Plaintiffs' 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.

         C. Federal Statutory Claims

         Plaintiffs' Eighth Cause of Action is duplicative, and their Ninth Cause of Action fails to state a plausible claim for relief.

         The 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 prejudice.

         The 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.

         II. City Defendants' ...


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