United States District Court, D. Rhode Island
WILLIAM R. L'EUROPA; EXECTIVE PUBLIC ADJUSTERS, LLC; DISASTER RESTORATION GROUP, LLC; and ALL STAR CONSTRUCTION, INC., Plaintiffs,
RHODE ISLAND DIVISION OF STATE FIRE MARSHAL; JAMES GUMBLY, in his capacity as acting Director of the RHODE ISLAND DIVISION OF STATE FIRE MARSHAL; RHODE ISLAND ATTORNEY GENERAL PETER F. KILMARTIN, in his capacity as RHODE ISLAND ATTORNEY GENERAL; and SCOTTYE LINDSEY, in his capacity as Director of THE RHODE ISLAND DEPARTMENT OF BUSINESS REGULATION, Defendants.
MEMORANDUM AND ORDER
WILLIAM E. SMITH, CHIEF JUDGE.
case is before the Court on a Motion to Dismiss (ECF No. 8)
the Complaint (ECF No. 1). After an overview of the alleged
facts, the Court considers and GRANTS the Motion.
R. L'Europa holds a public-adjusters license, and is the
principal owner of Executive Public Adjusters, LLC,
(“Executive”) a public-adjusting business.
(Compl. ¶¶ 3-4). Disaster Restoration Group Public,
LLC, (“Disaster”) and All Star Construction,
Inc., (“All Star”) are both involved in the
construction business. Id. at ¶¶ 5-6. On
September 13, 2017, Defendant Scottye Lindsey, in his
official capacity as the director of the Department of
Business Regulation (“DBR”), issued an Order for
L'Europa “to Show Cause why orders should not issue
to revoke L'Europa's license, to cease and desist
unlawful activity and pay penalties based in part for a
violation of R.I. Gen. Laws §23-28.2-11.”
Id. at ¶ 20.
September 18, 2017, Plaintiffs asserted in their complaint
that R.I. Gen. Laws §23-28.2-11 (“Statute”)
violates their First Amendment right to freedom of speech.
Id. at ¶¶ 21-27. Thereafter, on December
13, 2017, the Department of Business Regulation amended the
Order to Show Cause, removing the Statute as grounds for
revocation of L'Europa's license. (Mem. Supp.
Pls.' Obj. to Defs.' Mot. to Dismiss
(“MSPO”) 3, ECF No. 11).
Statute states, in relevant part: “police, fire and
building officials, shall prohibit any and all insurance
adjusters, contractors, and restoration companies from
engaging in any solicitation or inspection or any physical
presence on the premises under investigation until
twenty-four (24) hours after . . . the state fire marshal . .
. releases control of the premises to its legal owner(s) . .
. .” R.I. Gen. Laws § 23-28.2-11.
claim the Statute is unconstitutional and request a
declaratory judgment to that effect. They also request an
injunction preventing Defendants from enforcing the Statute.
(Compl. at ¶¶ 36-37). Defendants claim the
Younger abstention doctrine applies to the
complaint, which should therefore be dismissed. (Mot. to
Dismiss 12). Defendants further contend Plaintiffs fail to
state a claim and lack standing. (Defs.' Reply Mem. 3-7,
ECF No. 13). The Court finds that even though Plaintiffs have
standing, their complaint should be dismissed pursuant to
Subject Matter Jurisdiction
Constitution restricts federal court jurisdiction to
“Cases” and “Controversies.” U.S.
Const. art. III, § 2, cl. 1. One element of this
restriction requires a party invoking federal jurisdiction to
establish it has standing to sue. Blum v. Holder,
744 F.3d 790, 795 (1st Cir. 2014). Defendants argue
Plaintiffs lack standing because Defendant DBR removed the
Statute from the Order to Show Cause. (See
Defs.' Reply Mem. 3). This argument misses the mark,
however, because standing is assessed at the time of filing.
See Lujan v. Defs. of Wildlife, 504 U.S. 555, 569
n.4 (1992) (noting the “longstanding rule that
jurisdiction is to be assessed under the facts existing when
the complaint is filed.”); Wheaton Coll. v.
Sebelius, 703 F.3d 551, 552 (D.C. Cir. 2012)
(“[S]tanding is assessed at the time of filing . . .
.”). And when Plaintiffs filed their complaint, the
Statute was cited in the Order to Show Cause.
Younger v. Harris, the Supreme Court held, absent
extraordinary circumstances, that federal courts should not
enjoin pending criminal proceedings in state courts.
See 401 U.S. 37, 43-44 (1971). The Younger
doctrine was later expanded to include three types of state
proceedings: “(i) criminal prosecutions, (ii) civil
proceedings that are akin to criminal prosecutions, and (iii)
proceedings that implicate a State's interest in
enforcing the orders and judgements of its courts.”
Sirva Relocation, LLC v. Richie, 794 F.3d 185, (1st
Cir. 2015) (quoting Sprint Commc'ns, Inc. v.
Jacobs, 571 U.S. 69, 72-73 (2013)). The First Circuit
has enunciated a three-step approach to determine when
Younger abstention applies. See Sirva 794
F.3d at 192. First, the court must determine if “a
particular state proceeding falls within the Younger
taxonomy, ” that is, whether the case is one of the
three types mentioned above. Id. at 193. If so, the
court must determine “whether the Middlesex
factors support abstention.” Id.; see
Sprint, 571 U.S. at 81(referring to Middlesex Cty.
Ethics Comm. v. Garden State Bar Ass'n, 457 U.S.
423, 432 (1982)). Finally, if both steps support abstention,
the court must determine if any doctrinal exceptions apply.
See Sirva, 794 F.3d at 193.
contend the state license-revocation proceeding is civil, but
akin to a criminal prosecution. (Mot. to Dismiss 5.) The
Supreme Court has said civil proceedings akin to criminal
prosecutions are ones “characteristically initiated to
sanction the federal plaintiff . . . for some wrongful
act.” Sprint, 571 U.S. at 79. “In cases
of this genre, a state actor is routinely party to the state
proceeding and often initiates the action[, and]
[i]nvestigations are commonly involved, often culminating in
the filing of a formal complaint or charges.”
Id. at 79-80.
Defendants are right, then, that the license-revocation
proceeding is a species found in the Younger
taxonomy: the state instituted the proceeding to sanction
L'Europa by revoking his public-adjusters license.
(Compl. ¶ 20). DBR, who initiated the proceedings, is a
state actor. (Mot. to Dismiss 5). And ...