Platunov v. Nye County

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA [3] VASILI PLATUNOV, ) 4 ) Plaintiff, ) Case No.: 2:18-cv-00917-GMN-BNW [5] vs. ) 6 ) ORDER NYE COUNTY, et al., ) 7 ) Defendants. ) [8] ) [9] 10 Pending before the Court is Defendants Nye County’s and Angela Bello’s (collectively, 11 “Defendants”) Motion for Younger Abstention, (ECF No. 14). Plaintiff Vasili Platunov 12 (“Plaintiff”) filed a Response, (ECF No. 17), and Defendants filed a Reply, (ECF No. 20). 13 I. BACKGROUND 14 This is a 42 U.S.C. § 1983 action for damages and declaratory relief, alleging an 15 unlawful taking of Plaintiff’s property rights under a grandfather clause without due process. 16 (See Compl., ECF No. 1). Defendant Nye County is a political subdivision of the State of 17 Nevada; Defendant Bello is a Nye County District Attorney. (Compl. at 2). Plaintiff is a 18 professional dog breeder doing business as Est-Alfa K-9 Security Services, LLC. (Id.). 19 On or about February 20, 2007, Plaintiff purchased certain real property located at 2790 20 East Camellia Street, Pahrump, Nevada 89048 (the “Property”), for purposes of commercial 21 kennel use. (Compl. at 2–3); (see ECF No. 1-7). Plaintiff alleges that his commercial kennel 22 use was in compliance with use regulations in effect at the time his use was established. 23 (Compl. at 3–4). 24 On October 24, 2007, the Nye County Board of Commissioners adopted Bill No. 200725 13, Nye County Ordinance No. 346 (effective Nov. 19, 2007) (“Ordinance 346”), which amended zoning regulations applicable to the Property by adding regulations and amendments 1 regarding animal related uses and definitions. Nye County Code (“NCC”) 17.04.220 allows 2 commercial kennel use on real property located in Plaintiff’s zoning district with the approval 3 of a conditional use permit (“CUP”). NCC 17.04.100 provides that “[c]ommercial kennels 4 existing prior to the adoption hereof, shall not be required to obtain a conditional use permit,” 5 under specified conditions (“Grandfather Clause”). Absent otherwise, only three (3) dogs are 6 permitted per property. See NCC 17.04.100 (defining Kennel, Breeder’s); (ECF Nos. 1, 14). 7 In 2009, Plaintiff submitted a CUP application (CU-10-0013) for a commercial kennel 8 use with up to 30 dogs to be maintained on the Property, which was approved in 2010. (Compl. 9 at 4); (see ECF No. 14-1). In 2015, Plaintiff requested modification of CU-10-0013 to allow a 10 commercial kennel use with up to 150 dogs, which was denied. (See Compl. at 4); (ECF No. 11 14-3). Plaintiff appealed the modification denial, but his appeal was likewise denied in 2017. 12 (Compl. at 4–5). On April 30, 2018, the Nye County Planning Department, Division of Code 13 Enforcement, issued an Enforcement Order to Plaintiff notifying Plaintiff that his appeal rights 14 have been exhausted and ordering Plaintiff to reduce the number of dogs on the Property in 15 compliance with the CUP ( “Enforcement Order”). (Compl. at 5). 16 Plaintiff alleges that his existing use of the Property for raising dogs is protected by the 17 Grandfather Clause and that the new limitations placed on property owners are inapplicable to 18 prior-established use. (Compl. at 3). Plaintiff further alleges that notwithstanding this 19 grandfathered protection, agents of the Nye County Planning Commission misled him to 20 believe that a CUP approving Plaintiff’s commercial kennel use on the Property was necessary 21 to be in compliance. (Compl. at 4). Plaintiff thus alleges that by granting CU-10-0013, “the 22 [Regional Planning Commission] arbitrarily, and without authority, put conditions on 23 [Plaintiff’s] grandfathered CUP” and that Ordinance 346 violated his procedural due process 24 rights. (Compl. at 4, 7). [25] 1 On May 18, 2018, Plaintiff filed the underlying Complaint against Defendants1 asserting 2 two claims for relief: (1) damages pursuant to 42 U.S.C. §§ 1983 , 1988; and (2) declaratory 3 judgment pursuant to 42 U.S.C. §§ 1983 , 1988, 28 U.S.C. § 2201 (a), and Fed. R. Civ. P. 57. 4 (ECF No. 1). The Complaint seeks damages and a declaration that Ordinance 346 “is void for 5 failure to observe notice and hearing requirements under State and Federal Law” or, 6 alternatively, that Defendants “shall recognize Plaintiff’s grandfather clause rights and shall 7 cease and desist further attempts to enforce compliance with Nye County Ordinance No. 346.”2 8 (Compl. at 7). On September 19, 2018, Defendants filed their Answer. (Answer, ECF No. 12). 9 On September 25, 2018, Nye County filed suit against Plaintiff in Nevada state court to 10 enforce the Enforcement Order (“Enforcement Action”)3—specifically, seeking an injunction 11 enjoining and restraining Plaintiff from a commercial kennel use on the Property and removal 12 of the same. (See ECF No. 14-2); (Mot. to Dismiss (“MTD”) at 7, ECF No. 14). 13 In the instant Motion, Defendants move for dismissal or stay of this action pending the 14 resolution of the Enforcement Action pursuant to Younger abstention. (MTD at 1, ECF No. 14). 15 In response, Plaintiff urges this Court to retain jurisdiction of this action pursuant to the “first16 to-file” rule. (Resp. at 5, ECF No. 17). 17 II. DISCUSSION 18 The Court will first address Plaintiff’s First-to-File arguments followed by the issue of 19 Younger abstention. 20 /// [23] 1 Defendant Nye County Board of Commissioners was dismissed pursuant to a stipulation. (ECF Nos. 9, 10). 24 2 While characterized as “declaratory relief,” Plaintiff’s alternative request appears to be a request for injunctive relief. 25 3 Nye County v. Platunov, No. CV39682, Fifth Judicial District Court, Nye County, Nevada. The Enforcement Action is currently pending, but has been held in abeyance pending resolution of the instant Motion. (See Status Report, ECF No. 21). 1 A. First-to-File 2 In his Response, Plaintiff asks this Court to retain jurisdiction pursuant to the first-to-file 3 rule. (Resp., ECF No. 17). Plaintiff asserts that this first-filed action involves “essentially 4 identical” parties and issues as the later-filed Enforcement Action. (Id. at 6–7). Thus, Plaintiff 5 contends that this Court—as the court with first or earlier possession of the subject matter— 6 must decide the instant action. (Id. at 6). 7 The Court disagrees. “When two cases involving the same parties and issues are filed in 8 two federal districts, the first-to-file rule permits the second district to exercise its discretion to 9 transfer, stay, or dismiss the second suit in the interests of efficiency and judicial economy.” 10 Olin Corp. v. Cont’l Cas. Co., No. 2:10-cv-00623-GMN, 2011 WL 1337407 , at *2 (D. Nev. 11 Apr. 6, 2011) (quoting AmerisourceBergen Corp. v. Roden, 495 F.3d 1143, 1156 (9th Cir. 12 2007)) (emphasis added). Here, the two cases were not filed in two federal districts; nor is this 13 Court the second district. 14 Notably, Plaintiff’s Response does not appear to dispute these points. Plaintiff 15 acknowledges that the first-to-file rule applies to competing or parallel litigation filed in 16 separate federal district courts, and that the Enforcement Action was filed in state court. (See 17 Resp. 5:4–13, 7:2–4, 21). Plaintiff also acknowledges that the first-to-file rule permits the 18 second district to exercise discretion, and that the matter was first-filed in this Court. (Id. 6:27– 19 28; 7:18–20, 8:25–26). 20 Accordingly, as correctly contended in Defendants’ Reply, the first-to-file rule is 21 inapplicable here. (Reply at 3, ECF No. 20). 22 B. Younger Abstention 23 Defendants argue that Younger abstention allows this Court to refrain from interfering 24 with ongoing state proceedings such as the Enforcement Action. (MTD at 8). In Response, 25 Plaintiff does not address the applicability of Younger abstention; rather, the entirety of 1 Plaintiff’s Response is predicated on the first-to-file rule, which, for the reasons set forth above, 2 is inapplicable. (Resp. 5:14–9:8, ECF No. 17). 3 The abstention doctrine, established in Younger v. Harris, “is an exception to the usual 4 rule that federal courts should exercise the jurisdiction conferred on them by statute.” 401 U.S. 5 37 (1971); see also Gartrell Const. Inc. v. Aubry, 940 F.2d 437 , 441 (9th Cir. 1991). “Younger 6 principles apply to actions at law as well as for injunctive or declaratory relief[.]” Gilbertson v. 7 Albright, 381 F.3d 965, 968 (9th Cir. 2004). Absent extraordinary circumstances, Younger 8 abstention applies where the following four elements are met: 9 (1) a state-initiated proceeding is ongoing; (2) the proceeding implicates important state interests; (3) the federal plaintiff is not barred from litigating 10 federal constitutional issues in the state proceeding; and (4) the federal court action would enjoin the proceeding or have the practical effect of doing so, i.e., [11] would interfere with the state proceeding in a way that Younger disapproves. [12] 13 San Jose Silicon Valley Chamber of Commerce Political Action Comm. v. City of San Jose, 546 14 F.3d 1087, 1092 (9th Cir. 2008); Logan v. U.S. Bank N.A., 722 F.3d 1163, 1167 (9th Cir. 2013); 15 see also Middlesex Cty. Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 432 (1982) 16 (“The policies underlying Younger are fully applicable to noncriminal judicial proceedings 17 when important state interests are involved.”). 18 Here, the instant circumstances fit within the Younger doctrine: the Enforcement Action 19 is an ongoing state-initiated proceeding that implicates important state interests; Plaintiff is/was 20 not barred from litigating federal constitutional issues in the state proceedings (nor does he 21 contend otherwise); and this action would have the practical effect of enjoining the state court 22 proceeding. See, e.g., Sprint Commc’ns, Inc. v. Jacobs, 571 U.S. 69 , 72–73 (2013) 23 (“Circumstances fitting within the Younger doctrine . . . include . . . ‘civil enforcement 24 proceedings[.]’”); Huffman v. Pursue, Ltd., 420 U.S. 592, 607 (1975) (“[W]e conclude that the 25 District Court should have applied the tests laid down in Younger in determining whether to 1 proceed to the merits of appellee’s prayer for relief against this Ohio civil nuisance 2 proceeding.”). 3 The Enforcement Proceeding is an ongoing state proceeding implicating important state 4 interests worthy of abstention under Younger principles. Nye County’s complaint in the 5 pending Enforcement Action seeks injunctive relief and the abatement of a nuisance at the 6 Property based on violations of certain provisions of the Nye County Code. (ECF No. 14-2); 7 (see also MTD at 7). “[A]n offense to the State’s interest in the nuisance litigation is likely to 8 be every bit as great as it would be were this a criminal proceeding.” See Huffman, 420 U.S. at 9 604. Thus, “the principles of Younger and Huffman are broad enough to apply to interference 10 by a federal court with an ongoing civil enforcement action such as this, brought by the State in 11 its sovereign capacity.” Trainor v. Hernandez, 431 U.S. 434, 444 (1977); see also id. at 445 12 (“For a federal court to proceed with its case rather than to remit appellees to their remedies in 13 a pending state enforcement suit would confront the State with a choice of engaging in 14 duplicative litigation, thereby risking a temporary federal injunction, or of interrupting its 15 enforcement proceedings pending decision of the federal court at some unknown time in the 16 future.”); AmerisourceBergen Corp. v. Roden, 495 F.3d 1143, 1150 (9th Cir. 2007) (“The goal 17 of Younger abstention is to avoid federal court interference with uniquely state interests such as 18 preservation of these states’ peculiar statutes, schemes, and procedures.”). 19 The state proceeding will provide Plaintiff with the opportunity to raise his federal 20 concerns. Plaintiff’s Complaint, (ECF No. 1), alleges procedural due process violations 21 pursuant to § 1983, which the state court is competent to hear. See, e.g., Coats v. Woods, 819 22 F.2d 236, 237 (9th Cir. 1987) (“If the constitutional claims in the case have independent merit, 23 the state courts are competent to hear them.”). Further, Plaintiff has provided no basis 24 indicating that he would otherwise be barred from litigating the underlying federal [25] 1 constitutional issues in the state proceeding; nor does Plaintiff allege that the stat remedies were 2 inadequate to litigate his federal due process claim. (See generally ECF Nos. 1, 17). 3 In comparison, Plaintiff’s requested relief—for damages and a declaration that 4 Ordinance 346 is void as violating his procedural due process rights—would have the practical 5 effect of enjoining the state court proceeding. (See Compl. at 7). “[This] federal court would 6 necessarily have to determine whether the federal plaintiff’s constitutional rights were violated, 7 and any such determination would have the same practical effect on the state proceedings as the 8 injunctive relief condemned in Younger and the declaratory relief constrained in Samuels.” 9 Gilbertson, 381 F.3d at 984 . 10 Further, while Plaintiff fails to specifically address Younger abstention, the arguments in 11 Plaintiff’s Response nonetheless fail to prevent the application of the Younger abstention 12 doctrine. See, e.g., Meadow Valley Contractors, Inc. v. Johnson, 89 F. Supp. 2d 1180, 1184 (D. 13 Nev. 2000 ) (“Contrary to Plaintiffs’ assertions, propriety of Younger abstention is determined 14 not by a comparison of the starting dates of the federal and state proceedings, but rather 15 whether state proceedings have been initiated before the performance of any ‘proceedings of 16 substance on the merits” in the federal action.’”). Nor does Plaintiff’s Response present any 17 extraordinary circumstances that would otherwise warrant federal interference. See Trainor, [18] 431 U.S. at 446 (“The pendency of the state-court action called for restraint by the federal court 19 and for the dismissal of appellees’ complaint unless extraordinary circumstances were present 20 warranting federal interference or unless their state remedies were inadequate to litigate their 21 federal due process claim.”). 22 Based on the foregoing, the Court finds that the interests of comity and federalism upon 23 which Younger primarily rests apply here, and that Younger abstention is proper. See New 24 Orleans Pub. Serv., Inc. v. Council of City of New Orleans, 491 U.S. 350 , 367–68 (1989) 25 (finding that “our concern for comity and federalism has led us to expand the protection of 1 Younger beyond state criminal prosecutions, to civil enforcement proceedings”); Huffman, 420 2 U.S. at 606–07 (“Younger turned on considerations of comity and federalism peculiar to the 3 fact that state proceedings were pending . . . . The propriety of federal-court interference with 4 an Ohio nuisance proceeding must likewise be controlled by application of those same 5 considerations of comity and federalism.”). Accordingly, the Court GRANTS Defendants’ 6 Motion, (ECF No. 14), and DISMISSES Plaintiff’s Complaint, (ECF No. 1), without prejudice. 7 III. CONCLUSION 8 IT IS HEREBY ORDERED that Defendants’ Motion for Younger Abstention, (ECF 9 No. 14), is GRANTED. 10 IT IS FURTHER ORDERED that Plaintiff’s Complaint, (ECF No. 1), is DISMISSED 11 without prejudice. 12 DATED this _2_9___ day of September, 2019. [14] ___________________________________ Gloria M. Navarro, District Judge [15] United States District Court