United States District Court, D. Nebraska
METROPOLITAN OMAHA PROPERTY OWNERS ASSOCIATION, INC., PIERCE CARPENTER, AND HILLCREST APARTMENTS Plaintiff,
THE CITY OF OMAHA, NEBRASKA, Defendant.
MEMORANDUM AND ORDER
SMITH CAMP SENIOR UNITED STATES DISTRICT JUDGE
matter is before the Court on Defendant City of Omaha's
Motion to Dismiss, ECF No. 9, and the Application for a
Preliminary Injunction, ECF No. 12, submitted by Plaintiffs
Metropolitan Omaha Property Owners Association, Inc. (MOPOA),
Pierce Carpenter, and Hillcrest Apartments (Hillcrest). For
the following reasons, Plaintiffs' Application for a
Preliminary Injunction will be denied and the City's
Motion to Dismiss will be denied as moot, subject to
material facts of the case do not appear to be in dispute.
The following facts are those found in the pleadings, briefs,
and evidentiary submissions.
MOPOA is a Nebraska nonprofit corporation. MOPOA consists of
approximately 1, 000 individuals and entities that own and
operate real property located in Omaha, Nebraska.
Carpenter is a member of MOPOA and owns rental property in
Omaha. Carpenter “sometimes does business under the
name of Hillcrest Apartments.” Am. Compl. ¶ 9, ECF
No. 18 at Page ID # 297.
action arises out of an earlier lawsuit before this Court, in
which MOPOA raised several issues regarding the City's
housing code. The parties settled that action, and the Court
adopted the terms of the settlement agreement through a
consent decree. Consent Decree, Metro. Omaha Prop. Owners
Ass'n, Inc. v. City of Omaha (MOPOA I), No.
8:13-cv-230-LSC-FG3 (D. Neb. Mar. 4, 2015), ECF No. 36
(incorporating the terms of the settlement agreement found at
ECF No. 35-2). Under the Consent Decree, MOPOA agreed to
dismiss its case, and the City agreed to amend certain
sections of the Omaha Municipal Code and adopt a set of
standard operating procedures which were to serve as the
official policy of the City's Permits and Inspection
about April 17, 2019, the City enacted the Rental Property
Registration and Inspection Ordinance (RPRIO), to take effect
January 1, 2020. Omaha, Neb., Ordinance 41, 767 (to be
codified at Omaha, Neb., Code §§ 48-201 to 48-209).
The stated purpose of the RPRIO is to “implement
uniform residential rental property registration, and a
regular inspection program . . . to address the issue of
substandard rental properties, promote greater compliance
with health and safety standards, and preserve the quality of
the city's neighborhoods and available housing.”
§ 48-201(b). The RPRIO requires all rental dwellings in
the City of Omaha and within its three-mile extraterritorial
jurisdiction to be registered with the City's Permits and
Inspections Division. § 48-204. There are no fees to
file a registration application. § 48-205. All
registered properties are subject to inspection by the City
every ten years, or annually if the property has had prior
violations or was not timely registered. § 48-206. The
landlord must pay an inspection fee of $125 for each
decennial or annual inspection. § 48-206(g).
action was initially brought by MOPOA on October 3, 2019, in
a three-count Complaint, ECF No. 1, asking the Court to find
the RPRIO unconstitutional and in violation of the Consent
Decree. On November 27, 2019, the City filed a Motion to
Dismiss, ECF No. 9. On November 29, 2019, MOPOA filed an
Application for Preliminary Injunction, ECF No. 12. On
December 15, 2019, Plaintiffs filed an Amended Complaint, ECF
No. 18, joining Carpenter and Hillcrest, and Carpenter and
Hillcrest filed a Notice of Joinder regarding the Application
for Preliminary Injunction, ECF No. 19.
in the Eighth Circuit apply the factors set forth in
Dataphase Systems, Inc. v. CL Systems, Inc., 640
F.2d 109, 114 (8th Cir. 1981) (en banc), when determining
whether to issue a preliminary injunction or temporary
restraining order. See, e.g., Rodgers v.
Bryant, 942 F.3d 451, 455 (8th Cir. 2019) (reviewing
district court's balancing of the Dataphase
factors). Those factors are: “(1) the threat of
irreparable harm to the movant; (2) the state of balance
between this harm and the injury that granting the injunction
will inflict on other parties litigant; (3) the probability
that movant will succeed on the merits; and (4) the public
interest.” Dataphase, 640 F.2d at 114.
“[N]o single factor is determinative.” Home
Instead, Inc. v. Florance, 721 F.3d 494, 497 (8th Cir.
2013) (quoting Dataphase, 640 F.2d at 113). “A
preliminary injunction is an extraordinary remedy and the
burden of establishing the propriety of an injunction is on
the movant.” Roudachevski v. All-Am. Care Ctrs.,
Inc., 648 F.3d 701, 705 (8th Cir. 2011) (citing
Watkins, Inc. v. Lewis, 346 F.3d 841, 844 (8th Cir.
state two claims for relief arising out of the City's
enactment of the RPRIO. They generally state these claims are
brought under 42 U.S.C. §§ 1983, 1985, and 3613;
the Fourth, Fifth, and Fourteenth Amendments to the United
States Constitution; and the Court's inherent power to
enforce its own orders, judgments, and decrees. Plaintiffs
assert the RPRIO is unconstitutional and constitutes a breach
of the Consent Decree, and they move for preliminary and
permanent injunctive relief.
Likelihood of Success on the Merits
deciding whether to grant a preliminary injunction,
likelihood of success on the merits is most
significant.” S.J.W. ex rel. Wilson v. Lee's
Summit R-7 Sch. Dist., 696 F.3d 771, 776 (8th Cir. 2012)
(quoting Minn. Ass'n of Nurse Anesthetists v. Unity
Hosp., 59 F.3d 80, 83 (8th Cir.1995)); see also Home
Instead, 721 F.3d at 497 (“[T]he probability of
success factor is the most significant.” (citing
Barrett v. Claycomb, 705 F.3d 315, 320 (8th Cir.
2013))). With respect to this factor, it is not necessary for
the movants to prove they are more likely than not to
prevail; the movants need only show a reasonable probability
of success, that is, a fair chance of prevailing on the
merits. Kroupa v. Nielsen, 731 F.3d 813, 818 (8th