Posted by: Patricia Salkin | March 21, 2020

6th Cir. Court of Appeals Holds Adult Entertainment Club Failed to State a Claim Under §1985 for Conspiracy to Violate Civil Rights

This post was authored by Matthew Loescher, Esq.

Déjà Vu of Nashville, Inc., an adult entertainment business, contracted with The Parking Guys, Inc. for valet parking services. The Metropolitan Government of Nashville and Davidson County denied the valet permit to The Parking Guys, which appealed the denial to the Traffic and Parking Commission. Metro Council Member Freddie O’Connell, private citizens Linda Schipani and Lee Molette, and Midtown Nashville businesspersons, opposed the valet permit based on stated concerns about traffic congestion and safety risks in the area. The Commission voted to deny the permit and Plaintiffs unsuccessfully appealed. Déjà Vu and The Parking Guys also brought federal civil rights claims under 42 U.S.C. §§ 1983 and 1985 against the defendants. All Defendants moved to dismiss Plaintiffs’ complaint and the district court granted their motions.

Schipani first argued that Déjà Vu lacked standing and its claims should be dismissed because TPG alone was denied the valet permit and Déjà Vu suffered no injury.

Déjà Vu pled that its injury resulted from a civil conspiracy, traceable to Schipani because of her emails and statements, and that the alleged infringement of First Amendment rights is redressable with the remedies it sought: a declaratory judgment, money damages, attorney’s fees, and costs. The court agreed, and upheld the district court’s finding that Déjà Vu had standing to bring suit against Schipani and the others.

The district court next dismissed Plaintiffs’ §1985 claim because their “complaint contains not a single allegation about a group of individuals that share their desire to engage in the same First Amendment activity opposed by Defendants, let alone that the amorphous group was subjected to racially discriminatory animus because of their desire.”

Moreover, the complaint failed to contain an indication of any class membership at all. Therefore, Plaintiffs failed to state a claim under §1985 against any of the defendants in their complaint.

Private citizens Schipani and Molette asserted immunity as witnesses under Tenn. Code Ann. § 4-21-1003(a), which granted immunity from civil liability on claims based upon any person’s communication to a governmental agency in matters of concern to that agency.

The court found that the resolution of the immunity issue was unnecessary to the district court’s determination to grant the motions to dismiss, and, as a result, Molette and Schipani did not “prevail” upon the defense of immunity. Furthermore, Molette and Schipani failed to adequately explain how this state immunity statute authorizing attorney’s fees would even apply to federal causes of action in federal court. Thus, the court affirmed the district court’s dismissal of Plaintiffs’ claims and denied Schipani’s motion for appellate sanctions. 

Deja Vu of Nashville v Metropolitan Government of Nashville & Davidson County, 805 Fed. Appx. 379 (6th Cir. CA 3/13/2020)


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