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C. Line, Inc. v. City of Davenport

United States District Court, S.D. Iowa

August 2, 2013

C. LINE, INC., Plaintiff,

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For City of Davenport, Iowa, Defendant: Rand S Wonio, Samuel J. Skorepa, LANE & WATERMAN LLP, DAVENPORT, IA.

For Craig Malin, Alan Guard, Defendants: Rand S Wonio, LANE & WATERMAN LLP, DAVENPORT, IA.

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Before the Court are the following motions: 1) a partial [1] Motion for Summary Judgment (Clerk's No. 35), filed by C. Line, Inc. (" Plaintiff" or " C. Line" ); and 2) a Motion for Summary Judgment (Clerk's No. 47) filed by the City of Davenport (" Davenport" ), Craig Malin (" Malin" ), and Alan Guard (" Guard" ) (collectively " Defendants" ). Defendants filed a resistance (Clerk's No. 46) to Plaintiff's Motion (Clerk's No. 46). Plaintiff filed a resistance (Clerk's No. 51) to Defendants' Motion, and Defendants filed a Reply (Clerk's No. 53). The matters are fully submitted.


C. Line is an Iowa limited liability company with its principal place of business in Davenport, Iowa. Pl.'s Statement of Material Facts (" Pl.'s Facts" ) ¶ 1 (Clerk's No. 35.1).

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Davenport is a municipal corporation organized and existing under the Constitution and laws of the State of Iowa. Id. ¶ 2. At the times relevant to this case, Malin was Davenport's city administrator, and Guard was Davenport's finance director. Id. ¶ ¶ 3-4; Defs.' Resp. to Pl.'s Facts (" Defs.' Resp. to Pl.'s Facts" ) ¶ 4 (Clerk's No. 46.2). The parties agree that all of Defendants' actions in relation to this case were taken in the course and scope of official duties and under color of state law and authority. Pl.'s Facts ¶ 5.

In February 1997, C. Line opened an adult cabaret business called " Chorus Line" at 4128 North Brady Street in Davenport. [2] Id. ¶ 10. In 2001, Davenport adopted ordinance No. 2001- 228, which established Chapter 5.16 of the Davenport Municipal Code to provide for the licensing and regulation of " adult entertainment" businesses. Id. ¶ 11. On August 19, 2003, C. Line was informed by a letter that Chorus Line must cease operating as an adult business. Id. ¶ 12. On October 14, 2003, C. Line filed suit against Davenport in this Court. Id. ¶ 13 (citing C. Line, Inc. d/b/a Chorus Line v. City of Davenport, Iowa , Case No. 3:03-cv-90113). On August 20, 2004, C. Line and Davenport entered into a Consent Decree. Id. ¶ 14. The Consent Decree was signed on behalf of Davenport by Assistant City Attorney Brian Heyer (" Heyer" ), approved by the Court, and is fully binding on Davenport and its officers and employees. Id. ¶ ¶ 14, 18. Amongst other things, the Consent Decree provides:

1. The City of Davenport will issue an adult cabaret license to C. Line, Inc., d/b/a Chorus Line; § 5.16.120 notwithstanding. Said license shall be subject to the regulations of Chapter 5.16 and shall be renewable as provided thereunder.
2. C. Line, Inc. shall be allowed to amend its corporate structure, if necessary, such that the majority interest in C. Line, Inc., the owner of the adult cabaret license, may be sold or transferred to any otherwise qualified person or entity pursuant to Chapter 5.16 of the Davenport Municipal Code.
3. The Chorus Line is a pre-existing non-conforming use. . . .
[5]. The provisions of Chapter 5.16 may be enforced by the City of Davenport, except as modified by this Consent Decree . . . .

Id. ¶ ¶ 14-17.

At the time of the Consent Decree, C. Line was owned by Michael Cline (" Cline" ). Id. ¶ 25. Cline sold C. Line to Larry Starkman, Michael Siegel, and Steven Brown in 2007. Id. In November 2008, C. Line voluntarily closed Chorus Line. Id. In December 2008, Chorus Line was evicted from 4128 Brady Street by a forcible entry and detainer petition granted in favor of the landlord of the property. Id. In early 2009, the corporate ownership of C. Line was transferred to Nadeem Mazhar (" Mazhar" ). Id. ¶ 26.

On July 28, 2009, C. Line applied to Davenport for an adult entertainment license as part of the reopening of the Chorus Line adult cabaret business at 4128 Brady Street. Id. ¶ 30. Pursuant to Davenport Municipal Code § 5.16.050(A), three " reviewing departments" must approve adult entertainment licenses: the Fire Department, the Zoning and Land Use Department, and the Police Department. Id. ¶ 32. Each of the three reviewing departments recommended approving C. Line's application, and the matter was returned to Davenport's Finance Department for issuance of an adult entertainment business license under Davenport

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Municipal Code § § 5.16.040 and 5.16.050. Id. ¶ ¶ 31, 33-34.

On September 21, 2009, while C. Line's application was pending before the Finance Department, Malin performed a site inspection at Dr. John's Lingerie Boutique (" Dr. John's" ), also located at 4128 North Brady Street. Id. ¶ 36. Dr. John's sells lingerie, shoes, hosiery, and adult novelties, movies, and magazines. Id. Since opening, it had operated under a general retail business license issued by Davenport in August 2008. Id. ¶ ¶ 36, 42. Indeed, Dr. John's had never been notified by Defendant that is was considered an " adult entertainment business" as defined by Chapter 5.16 of the Davenport Municipal Code. [3] Id. ¶ 44. After observing Dr. John's advertising and merchandise, Malin returned to City Hall and met with Matt Flynn (" Flynn" ), the senior manager of the Community Planning and Economic Development Department, and Tom Warner (" Warner" ), corporate counsel. Id. Under Warner's guidance, a letter was drafted denying C. Line an adult cabaret license pursuant to Davenport Municipal Code § 17.47.030(B), which prohibits two adult entertainment businesses from being located on the same lot or within 500 feet of each other. Id. According to the letter, Dr. John's was an adult business establishment situated in the same building and on the same lot as C. Line. Id. ¶ 41. Guard signed the letter and mailed it to Mazhar by certified mail on September 24, 2009. Id. ¶ ¶ 36, 39, 40.

On October 9, 2009, C. Line appealed Guard's denial of an adult entertainment license pursuant to Davenport Municipal Code § 5.16.050(F), which permits license denials to be appealed to the city administrator or his designee. Id. ¶ 46; Defs.' Statement of Add'l Material Facts (" Defs.' Facts" ) ¶ 1 (Clerk's No. 47.2). A hearing was held on the appeal on October 22-23, 2009, with Malin presiding. [4] Pl.'s Facts ¶ 49. During the hearing, Davenport presented only the testimony of Warner, who stated that he inspected Dr. John's on October 20, 2009, and based on his observations, believed that it was an " adult store." [5] Id. ¶ 52. Based on the assertion that Dr. John's was an adult store, Defendants maintained throughout the hearing that the nonconforming use established by the Consent Decree ran with the parcel of land and that it " leapfrogged" to Dr. John's when Chorus Line was evicted from the Brady Street location. [6] Defs.' Facts ΒΆ 4.

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Warner admitted, however, that C. Line had an adult entertainment license under the terms of the 2004 Consent Decree and that a nonconforming use had to be out of business for more than one year to lose its rights to a nonconforming use under Davenport's zoning ordinances. Pl.'s Facts ¶ ¶ 53-54.

For its part, C. Line admitted the Consent Decree into evidence, argued that C. Line had a right to an adult entertainment license thereunder, [7] and called several witnesses. [8] Id. ¶ ¶ 50-51. Dr. John's store manager, Kelly Smith (" Smith" ), opined that Dr. John's was not an " adult store," because it holds a retail business license, has never been advised that it needed an adult entertainment business license, and sells many items that could be found at similar retail stores like Victoria's Secret and Spencer Gifts. [9] Id. ¶ 56. Flynn testified that, on behalf of the land use department, he signed off on C. Line's license application after merely looking in the windows of Dr. John's. Id. ¶ 58. Guard testified that: 1) he signed the letter denying C. Line's license application without having the application in front of him ( id. ¶ 61); 2) in the three years before the hearing, he had not renewed any of the three other adult entertainment business licenses issued by Davenport [10] ( id. ¶ 60); 3) he never personally inspected Dr. John's before issuing the denial letter; rather, he relied solely on information given to him by Warner or by Malin after Malin's September 21, 2009 site inspection [11] ( id. ¶ ¶ 59, 63); and 4) at the time he denied C. Line's application, he did not know whether or not the Chorus Line had been closed for more than twelve months. Id. ¶ 64.

On October 23, 2009, following the conclusion of the hearing, Malin performed a " follow up" site inspection to Dr. John's to ascertain for himself the approximate percentage of adult material for sale in the store. [12] Id. ¶ 66. On October 26, 2009,

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Malin entered a decision denying C. Line's appeal and upholding Guard's September 24, 2009 denial of C. Line's application for a new adult entertainment business license. Id. ¶ 68. Malin based his decision predominantly on his own inspection of Dr. John's. Id. ¶ ¶ 69-70; see Pl.'s App. in Supp. of Pl.'s Mot. for Summ. J. (" Pl.'s App." ) at 66 (Clerk's No. 35.2) (Malin explaining his observations from the October 23, 2009 visit and concluding that " [i]t is the undersigned's opinion, confirmed by direct inspection and calculation at the post hearing site inspection, that Dr. John's is, by its inventory, advertisement and admission of its own employees, an adult establishment" ). Although Malin acknowledged the Consent Decree in his ruling, he did not address Defendants' arguments about it, concluding instead that Dr. John's status as an adult establishment was dispositive. Pl.'s Facts ¶ 71; Defs.' Resp. to Pl.'s Facts ¶ 71.

On October 26, 2009, C. Line filed an appeal from Malin's decision with the Zoning Board of Adjustment (" ZBA" ) and paid a $250 filing fee. Pl.'s Facts ¶ 75. Although Scott Koops (" Koops" ) of the Davenport Community Planning and Economic Development Department initially accepted the appeal and fee, he sent an email to C. Line the following day stating that Davenport refused to permit C. Line to appeal Malin's decision to the ZBA. [13] Id. ¶ ¶ 75-76. On October 29, 2009, Koops returned C. Line's appeal application and filing fee. Id. ¶ 77. C. Line's attorney demanded that the appeal be placed on the ZBA's agenda for an upcoming November 4, 2009 meeting, but Koops denied the request. Id. ¶ ¶ 78-79. C. Line's attorney appeared at the November 4 agenda meeting and again requested, without success, that the appeal be placed on the agenda. Id. ¶ 80.

On November 13, 2009, C. Line filed a petition in the Iowa District Court for Scott County against Defendants Davenport and Malin requesting a writ of certiorari, declaratory judgment, a writ of mandamus, and a writ of injunction. [14] Id. ¶ 82. On June 10, 2010, Iowa District Court Judge James E. Kelley issued a ruling on C. Line's request for summary judgment in the case. See Pl.'s App. at 90-104. In particular, Judge Kelley granted Plaintiff's request for a writ of certiorari, finding that " the Decision of Craig Malin in this case is illegal and the Plaintiff is entitled to a hearing by a disinterested, impartial hearing officer to be appointed by the court." [15] Id. at 98. Judge Kelley did not address C. Line's mandamus and injunction claims, but did conclude that his decision to grant

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the writ of certiorari made C. Line's request for declaratory judgment unripe for decision. Id. at 98.

C. Line moved to enlarge Judge Kelley's findings. Id. at 105. Because Judge Kelley had retired, the motion was referred to Judge Marlita Greve. Id. at 106. Following a hearing, Judge Greve ruled on September 22, 2010 that C. Line was entitled to a declaratory judgment that " C. Line has a valid and existing Adult Entertainment Business License, which does not need to be renewed under Chapter 5.16 of the City of Davenport Code" and that " C. Line can immediately open its cabaret business at 4128 Brady Street, Davenport, Iowa as a legal nonconforming use without the necessity of obtaining a renewed license from the City because of the federal consent decree in place." [16] Id. at 110. Judge Greve further found that, in light of this ruling, C. Line was entitled to a writ of mandamus " ordering that C. Line has a valid and existing Adult Entertainment Business License and that Defendants shall immediately allow C. Line to open its cabaret business at 4128 Brady Street, Davenport, Iowa as a legal nonconforming use." Id. at 110-11. Judge Greve additionally ruled that in light of the grant of declaratory judgment and mandamus, " the appointment of a special master under a

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writ of certiorari to hear the appeal [is now] moot." Id. at 102. On December 7, 2010, Judge Greve further ruled that she " cannot make a finding establishing Defendants' liability regarding due process violations or that Defendants' conduct was unreasonable, arbitrary and capricious based on the summary judgment record only." [17] See Pl.'s App. in Resistance to Defs.' Mot. for Summ. J. (Clerk's No. 50-3) at 2.

Defendants appealed Judge Kelley's June 10, 2010 decision and Judge Greve's September 22, 2010 decision. See Pl.'s Facts ¶ 86; Pl.'s App. at 116-29. C. Line filed a cross-appeal on Judge Greve's December 7, 2010 Order denying summary judgment. Defs.' Facts ¶ 11; Pl.'s App. at 122. The appeals were adjudicated by the Iowa Court of Appeals on December 7, 2011. See Pl.'s Facts ¶ 86; Pl.'s App. at 116-129. The Court of Appeals affirmed Judge Greve's grant of declaratory relief in favor of C. Line and agreed that Judge Kelley's writ of certiorari was rendered moot by the grant of declaratory relief. Pl.'s App. at 121-22. Regarding C. Line's claim that it was entitled to summary judgment on its due process claims, the Court of Appeals held: " One of the byproducts of [C. Line's] procedural move [of seeking a declaratory judgment which had the effect of mooting the writ of certiorari] is that there are no findings on the remand which might demonstrate the violations alleged by C. Line." Id. at 122. Thus, the Court of Appeals affirmed the trial court's denial of C. Line's request for summary judgment, finding that it " correctly ruled that summary judgment on the due process claim for damages and attorney fees could not be granted based on the record at that time." Id. at 122-23. The matter was remanded to the district court for further proceedings. Id. at 123.

Defendants sought further review from the Court of Appeals, but its request was denied. Defs.' Facts ¶ 13. C. Line did not request further review of the Court of Appeals decision. Id. Rather, C. Line dismissed its state court action on July 23, 2012, opting instead to proceed solely in the present federal action, wherein Plaintiff has asserted claims against Defendants for: 1) enforcement of the August 20, 2004 Consent Decree; 2) takings pursuant to the Fifth and Fourteenth Amendments; 3) procedural due process violations; and 4) substantive due process violations. [18] See Compl. (Clerk's No. 1).


The term " summary judgment" is something of a misnomer. See D. Brock Hornby, Summary Judgment Without Illusions , 13 Green Bag 2d 273 (Spring 2010). It " suggests a judicial process that is simple, abbreviated, and inexpensive," while in reality, the process is complicated, time-consuming, and expensive. [19] Id. at 273,

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281. The complexity of the process, however, reflects the " complexity of law and life." Id. at 281. " Since the constitutional right to jury trial is at stake," judges must engage in a " paper-intensive and often tedious" process to " assiduously avoid deciding disputed facts or inferences" in a quest to determine whether a record contains genuine factual disputes that necessitate a trial. Id. at 281-82. Despite the seeming inaptness of the name, and the desire for some in the plaintiffs' bar to be rid of it, the summary judgment process is well-accepted and appears " here to stay." [20] Id. at 281. Indeed, " judges are duty-bound to resolve legal disputes, no matter how close the call." Id. at 287.

Federal Rule of Civil Procedure 56(a) provides that " [a] party may move for summary judgment, identifying each claim or defense--or the part of each claim or defense--on which summary judgment is sought." " [S]ummary judgment is an extreme remedy, and one which is not to be granted unless the movant has established his right to a judgment with such clarity as to leave no room for controversy and that the other party is not entitled to recover under any discernible circumstances." Robert Johnson Grain Co. v. Chem. Interchange Co. , 541 F.2d 207, 209 (8th Cir. 1976) (citing Windsor v. Bethesda Gen. Hosp. , 523 F.2d 891, 893 n.5 (8th Cir. 1975)). The purpose of summary judgment is not " to cut litigants off from their right of trial by jury if they really have issues to try." Poller v. Columbia Broad. Sys., Inc. , 368 U.S. 464, 467, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962) (quoting Sartor v. Ark. Natural Gas Corp. , 321 U.S. 620, 627, 64 S.Ct. 724, 88 L.Ed. 967 (1944)). Rather, it is designed to avoid " useless, expensive and time-consuming trials where there is actually no genuine, factual issue remaining to be tried." Anderson v. Viking Pump Div., Houdaille Indus., Inc. , 545 F.2d 1127, 1129 (8th Cir. 1976) (citing Lyons v. Bd. of Educ. , 523 F.2d 340, 347 (8th Cir. 1975)). Summary judgment can be entered against a party if that party fails to make a showing sufficient to establish the existence of an element essential to its case, and on which that party will bear the burden of proof at trial. See Celotex Corp. v. Catrett , 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

Federal Rule of Civil Procedure 56 mandates the entry of summary judgment upon motion after there has been adequate time for discovery. Summary judgment is appropriately granted when the record, viewed in the light most favorable to the nonmoving party and giving that party the benefit of all reasonable inferences, shows that there is no genuine issue of material fact, and that the moving party is therefore entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(a); Harlston v. McDonnell Douglas Corp. , 37 F.3d 379, 382 (8th Cir. 1994). The Court does not weigh the evidence, nor does it make credibility determinations. The Court only determines whether there are any disputed issues and, if so, whether those issues are both genuine and material. See Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Wilson v. Myers , 823 F.2d 253, 256 (8th Cir. 1987) (" Summary judgment is not designed

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to weed out dubious claims, but to eliminate those claims with no basis in material fact." ) (citing Weightwatchers of Quebec, Ltd. v. Weightwatchers Int'l, Inc. , 398 F.Supp. 1047, 1055 (E.D.N.Y. 1975)).

In a summary judgment motion, the moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact based on the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits, if any. See Celotex , 477 U.S. at 323; Anderson , 477 U.S. at 248. If the moving party has carried its burden, the nonmoving party must then go beyond its original pleadings and designate specific facts showing that there remains a genuine issue of material fact that needs to be resolved by a trial. See Fed.R.Civ.P. 56(c). This additional showing can be by affidavits, depositions, answers to interrogatories, or the admissions on file. Id.; Celotex , 477 U.S. at 322-23; Anderson , 477 U.S. at 257. " [T]he mere existence of some alleged factual dispute between the parties will not defeat a motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson , 477 U.S. at 247-48. An issue is " genuine" if the evidence is sufficient to persuade a reasonable jury to return a verdict for the nonmoving party. See id. at 248. " As to materiality, the substantive law will identify which facts are material . . . . Factual disputes that are irrelevant or unnecessary will not be counted." Id. Particularly in the presence of competing cross motions for summary judgment, a court must keep in mind that summary judgment is not a paper trial. Therefore, a " district court's role in deciding the motion is not to sift through the evidence, pondering the nuances and inconsistencies, and decide whom to believe." Waldridge v. Am. Hoechst Corp. , 24 F.3d 918, 920 (7th Cir. 1994). In a motion for summary judgment, the Court's job is only to decide, based on the evidentiary record that accompanies the moving and resistance filings of the parties, whether there really is any material dispute of fact that still requires a trial. See id. (citing Anderson , 477 U.S. at 249 and 10 Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure § 2712 (3d ed. 1998)).

Neither does filing cross motions for summary judgment mean the parties have waived their right to trial. See Wermager v. Cormorant Twp. Bd. , 716 F.2d 1211, 1214 (8th Cir. 1983) (" [T]he filing of cross motions for summary judgment does not necessarily indicate that there is no dispute as to a material fact, or have the effect of submitting the cause to a plenary determination on the merits." ) (citations omitted). Rather, for the purposes of summary judgment, a party concedes there are no factual issues and accepts the other party's allegations only for the purpose of their own motion. See Federal Practice and Procedure § 2720; see also Metro. Life Ins. Co. v. Johnson , 297 F.3d 558, 561-62 (7th Cir. 2002) (reviewing the record with " all inferences in favor of the party against whom the motion under consideration is made" ) (citing Hendricks-Robinson v. Excel Corp. , 154 F.3d 685, 692 (7th Cir. 1998)). " Cross motions simply require [a court] to determine whether either of the parties deserves judgment as a matter of law on facts that are not disputed." Barnes v. Fleet Nat'l. Bank , 370 F.3d 164, 170 (1st Cir. 2004) (quoting Wightman v. Springfield Terminal ...

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