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Dizzy Dottie, LLC v. Township of Jackson

November 22, 2010


The opinion of the court was delivered by: Judge James M. Munley United States District Court

(Judge Munley)


Before the court is defendants' motion to dismiss the instant complaint. Having been fully briefed, the matter is ripe for disposition.


This case arises out of a land-use dispute between defendants and the plaintiff, which operates an eating and drinking establishment, "Thrills," located in Defendant Township of Jackson, Pennsylvania. Plaintiff filed an initial cause of action in this court on April 8, 2010. (Doc. 1). That cause of action alleged that Thrills offered its patrons "live entertainment in the form of non-obscene erotic dancing by costumed female dancers." (Id. at ¶ 1). Thrills had built an extension to its pre-existing stage meant to allow dancers better to interact and receive tips from customers. (Id. at ¶ 14). A dispute arose about whether Thrills required a permit for this extension, and plaintiff complained that refusal to allow use of the stage undermined its business plan. (Id. at ¶¶ 16-21, 24). Plaintiff's complaint sought an injunction permitting use of this stage. (See Id.). Plaintiff also alleged that Thrills sought to feature topless and/or nude dancing, but that a Township of Jackson ordinance may prohibit such use. (Id. at ¶ 29-30). Plaintiff alleged that such an ordinance would violate the First Amendment of the Constitution. (Id. at ¶ 31). Two counts of the complaint sought a declaration from the court that the ordinance was unconstitutional under both federal and Pennsylvania law and an injunction from the court preventing its enforcement. The final cause of action in the complaint sought similar relief under the Pennsylvania Constitution.

Plaintiff also filed a motion for "temporary and preliminary restraints." (Doc. 5). This motion sought an order from the court directing defendants to allow plaintiff to use the extension to the stage it had constructed. After receiving this motion, the court convened a telephone conference between the parties in an attempt to resolve the issue. After discussing the situation, the parties agreed to allow plaintiff to use the stage extension pending state adjudication of plaintiff's application for a permit for that stage. (See Stipulation (Doc. 10) at ¶¶ 1-5). The parties also agreed to stay action on plaintiff's claims for relief pursuant to the federal and state constitutions, and to administratively close the case. (Id. at ¶ 6).

Plaintiff interpreted this agreement to include a promise from the defendants to negotiate over the constitutional issues raised in the complaint. (See "Certification of Counsel in Support of Motion on Short Notice" (Doc. 22) at ¶¶ 5-6). According to the plaintiff, defendants made no effort to negotiate such a settlement. Eventually, defendants informed plaintiff that no negotiations could occur until after a township meeting scheduled for May 13, 2010. (Id. at ¶ 6). Fearing that defendants would never negotiate, plaintiff wrote to this court on May 6. (Id. at ¶ 7). Defendants did not respond, and on May 7 plaintiff began featuring topless dancers at Thrills. (Id.). Despite their position that such dancing violated the Township's zoning ordinance, defendants did not issue plaintiff a notice of a zoning violation. (Id.). Instead, the township decided at its May 13, 2010 meeting to initiate a state-court action against the plaintiff for violating zoning ordinances. (Id. at ¶¶ 7-9).

Plaintiff notified this court on May 14 that the Defendant Township had decided to initiate litigation and that issues raised in the plaintiff's initial complaint had not been resolved. (Id. at ¶ 9). The court directed plaintiff to contact opposing counsel and attempt to resolve those issues, and scheduled a telephone conference for the following Monday, May 17, 2010. (Id.). Defendants then filed an action in the Court of Common Pleas for Monroe County, Pennsylvania. (Id.). That state-court action sought to enjoin operation of plaintiff's business, citing the zoning ordinance which is the subject of the instant action. (Id. at ¶ 10).

After hearing from counsel for each side during its May 17, 2010 telephonic conference, the court ordered the case reopened. (See Doc. 20). The court also ordered the defendants to file an answer or other appropriate response to the complaint by May 21, 2010. (Id.). On May 24, 2010, defendants filed a motion to dismiss (Doc. 34), arguing that abstention and estoppel doctrines should prevent the court from hearing this case. Even if the court were to consider the case, defendants contended, plaintiff could not make out a case that the ordinances violated its constitutional rights. The parties then briefed the issues. Before the court could issue any opinion on this matter, The Hon. Ronald E. Vican, Judge in the Court of Common Pleas for Monroe County, Pennsylvania, issued an opinion granting Jackson Township's motion for a preliminary injunction prohibiting topless or nude dancing at thrills. (See Exh. 4 of Appendix to Defendants' Reply Brief (Doc. 35)). On October 19, 2010, Judge Vican issued a permanent injunction that prevents Dizzy Dottie "from occupying or using the commercially zoned premises located at Route 715 and Doll Road as an adult cabaret" for up to one year. (Exh. 5 to Supplemental Appendix of Exhibits (Doc. 48) (hereinafter "Permanent Injunction Opinion") at 21).


Plaintiff brings its claim pursuant to 42 U.S.C. § 1983. The court therefore has jurisdiction pursuant to 28 U.S.C. § 1331 ("The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States."). The court has supplemental jurisdiction over the plaintiff's state law claims pursuant to 28 U.S.C. § 1367.

Legal Standard

Defendants have filed a motion to dismiss plaintiff's complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). When a defendant files a motion pursuant to Rule 12(b)(6), all well-pleaded allegations of the complaint must be viewed as true and in the light most favorable to the non-movant to determine whether "under any reasonable reading of the pleadings, the plaintiff may be entitled to relief." Colburn v. Upper Darby Township, 838 F.2d 663, 665-66 (3d Cir. 1988) (citing Estate of Bailey by Oare v. County of York, 768 F.3d 503, 506 (3d Cir. 1985), (quoting Helstoski v. Goldstein, 552 F.2d 564, 565 (3d Cir. 1977) (per curiam)). The court may also consider "matters of public record, orders, exhibits attached to the complaint and items appearing in the record of the case." Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 n.2 (3d Cir. 1994) (citations omitted). The court does not have to ...

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