                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-5-2007

Rose v. Allentown
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-5319




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                                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                               NOS. 05-5319 & 05-5507
                                 ________________

                                      JIMI ROSE,
                                                   Appellant,

                                           v.

      CITY OF ALLENTOWN; ZONING HEARING BOARD OF THE CITY OF
                              ALLENTOWN
                  ____________________________________

                   On Appeal From the United States District Court
                       For the Eastern District of Pennsylvania
                    (D.C. Civ. Nos. 02-cv-03842 & 04-cv-02853)
                     District Judge: Honorable Legrome R. Davis
                   _______________________________________

                      Submitted Under Third Circuit LAR 34.1(a)
                                  October 30, 2006

           Before: BARRY, CHAGARES AND ROTH, CIRCUIT JUDGES

                               (Filed January 5, 2007 )
                              _______________________

                                     OPINION
                              _______________________

PER CURIAM

      This case arises from a zoning dispute between the Plaintiff, Jimi Rose, and the

Defendants, the City of Allentown and the Zoning Board of the City of Allentown. Rose
operates a bring your own bottle (“BYOB”) establishment in Allentown, Pennsylvania.1

Performers dance in the nude at the club.

       The Allentown Zoning code classifies the club as a “cabaret.” While the club

violates the applicable zoning ordinances, the Zoning Hearing Board granted a special

exception to operate the club in September 1993. The Board granted the exception on the

condition that the club only be opened from noon to midnight, Monday through Saturday.

In 1998, Allentown enacted an ordinance that prohibited BYOB establishments from

operating between midnight and 8:00 a.m.

       In 1999, Rose requested a variance that the club be allowed to operate Monday

through Saturday until 2:00 a.m. Rose also requested that the club be allowed to operate

on Sundays between 1:00 p.m. and 9:00 p.m. The Zoning Hearing Board denied the

requests on September 13, 1999. Rose appealed to the Court of Common Pleas, Lehigh

County. Rose made several arguments before the Court of Common Pleas, including that:

(1) the Zoning Hearing Board’s denial was an unconstitutional infringement on his First

Amendment rights; and (2) the Zoning Hearing Board’s denial of his requests was racially

discriminatory and denied him equal protection under the law. The Court of Common

Pleas denied each of Rose’s claims. The Commonwealth Court of Pennsylvania affirmed

on February 28, 2002. The Pennsylvania Supreme Court denied Rose’s petition for



   1
    As the record indicates, the establishment has been called “Hollywood Nights” and
“Sin City Strippers” during its history. For purposes of this opinion, we will refer to the
establishment as “the club.”

                                              2
    allowance of appeal.

             As Rose’s petition for allowance of appeal was pending before the Pennsylvania

    Supreme Court, he filed his first federal complaint, District Court Dkt. No. 02-cv-03842

    (the “first federal complaint”). Rose raised several claims in his amended complaint2 ,

    including that: (1) the zoning ordinances were overly broad and violated his right to free

    speech and free expression; (2) the Zoning Hearing Board and the ordinances violated his

    First Amendment free speech rights3 ; (3) Rose was denied equal protection under the law;

    and (4) Rose was discriminated against on the basis of race.

             Initially, the District Court denied the Defendants’ motion for summary judgment

    and the case was listed for trial. On the date of trial, Rose orally moved for a voluntary

    dismissal of the case. The District Court dismissed the complaint without prejudice.

    Subsequently, Rose successfully moved to vacate the District Court’s dismissal order, and

    the matter was reopened. On October 31, 2005, the District Court dismissed the action

    with prejudice due to a lack of subject matter jurisdiction. The District Court relied on

    the Rooker-Feldman 4 doctrine in dismissing the complaint. Rose timely filed a notice of

    appeal, C.A. No. 05-5319.


       2
1          The District Court granted Rose’s request to file an amended complaint.
       3
         Rose also alleged that the zoning ordinances were overly broad in that they precluded
    his right to free speech and free expression. This allegation is subsumed within his First
    Amendment claim.
       4
          The doctrine is derived from Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923), and
    District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983).

                                                  3
       As Rose’s first federal complaint was progressing, he filed another variance

request to extend the hours of operation of the club. Rose requested that the club be

allowed to remain open until 2:00 a.m. on Monday, Thursday, Friday and Saturday nights.

The Zoning Hearing Board denied the request on January 24, 2004. Rose appealed to the

Court of Common Pleas, Lehigh County. Among his claims, Rose argued that: (1) the

regulations violated his freedom of speech and freedom of expression rights under the

Pennsylvania Constitution; and (2) the Zoning Hearing Board violated his equal

protection rights by discriminating against him because he did not have a state liquor

license. The Court of Common Pleas affirmed the Zoning Hearing Board’s denial of this

request. Rose appealed to the Commonwealth Court of Pennsylvania and additionally

argued that the Zoning Hearing Board’s decision was racially discriminatory. The

Commonwealth Court affirmed the Court of Common Pleas’ decision. However, the

Commonwealth Court stated that “a zoning hearing board, or any court on appeal from a

zoning hearing board’s decision, does not have the authority to address the type of

discrimination claims Rose is raising in his appeal before this Court. Any arguments that

Rose has been racially discriminated against by the City or the Board would have to be

raised in an appropriate action in civil court.” Rose v. Zoning Hearing Bd. of Allentown,

No. 2706 C.D. 2004 (Pa. Commw. Ct. April 22, 2005). The Pennsylvania Supreme Court

denied Rose’s petition for allowance of appeal on November 1, 2005.

       On June 28, 2004, Rose filed his second federal complaint, District Court Dkt. No.



                                             4
04-cv-02853 (the “second federal complaint”). In the complaint, Rose alleged that: (1)

his equal protection rights were violated when the Zoning Hearing Board discriminated

against him because he did not have a state liquor license; (2) his equal protection rights

were violated when the Zoning Hearing Board selectively enforced the laws and

ordinances based on race; and (3) his free expression rights under the Pennsylvania

Constitution were violated. In this complaint, Rose referenced the Zoning Hearing

Board’s January 27, 2004 decision denying his request for additional hours of operation

on Monday, Thursday, Friday and Saturday nights. The District Court granted

Defendants’ motion for summary judgment on November 18, 2005. It found that Rose’s

selective enforcement claim was barred pursuant to the Rooker-Feldman doctrine.

Additionally, the District Court found that all of the claims were barred based on res

judicata. Rose timely filed a notice of appeal, C.A. No. 05-5507. We consolidated

Rose’s two appeals, C.A. Nos. 05-5319 and 05-5507, for briefing and disposition.

       We have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review

over a District Court’s application of the Rooker-Feldman doctrine. See Turner v.

Crawford Square Apartments III, L.P., 449 F.3d 542, 547 (3d Cir. 2006). We also

exercise plenary review over the grant of summary judgment, and we apply the same

standard that the District Court should have applied. See Regents of Mercersburg Coll. v.

Republic Franklin Ins. Co., 458 F.3d 159, 163 (3d Cir. 2006)(citation omitted). Summary

judgment is proper when, viewing the evidence in the light most favorable to the non-



                                              5
movant, there is no genuine issue of material fact and the moving party is entitled to

judgment as a matter of law. See Saldana v. KMart Corp., 260 F.3d 228, 232 (3d Cir.

2001); F ED. R. C IV. P. 56(c).

       With respect to Rose’s first federal complaint, we will affirm the District Court’s

decision, albeit on different grounds. The Rooker-Feldman doctrine deprives a District

Court of jurisdiction in some circumstances to review a state court adjudication. See

Turner, 449 F.3d at 547. In Exxon Mobil Corp. v. Saudi Basic Industries Corp., 544 U.S.

280 (2005), the United States Supreme Court emphasized the narrow scope of the

Rooker-Feldman doctrine. It held that Rooker-Feldman “is confined to cases brought by

state-court losers complaining of injuries caused by state-court judgments rendered before

the district court proceedings commenced and inviting district court review and rejection

of those judgments.” See id. at 284 (emphasis added). In Exxon Mobil, the Supreme

Court stated that “the doctrine has sometimes been construed to extend far beyond the

contours of the Rooker and Feldman cases.” 544 U.S. at 283.

       In this case, the District Court erred in dismissing Rose’s first federal complaint by

applying the Rooker-Feldman doctrine beyond the contours of the Rooker and Feldman

cases. Rose’s first federal complaint did not complain of injuries caused by a state-court

judgment. Rather, Rose’s first federal complaint arose out of the variance request process

before the Zoning Hearing Board beginning in 1999. Thus, Rose’s claims in the first

federal complaint were not caused by a state-court judgment, but, rather, were attributable



                                             6
to the Defendants’ alleged actions that preceded any state-court judgment. See Turner,

449 F.3d at 547.

       We note that Rose’s first federal complaint overlaps with his adjudicated state-

court claims arising out of the state-court proceedings from the Zoning Hearing Board’s

denial of his first variance request in 1999. However, “this overlap does not mean that

the Rooker-Feldman doctrine is applicable here.” See id. As noted by the Supreme Court

in Exxon Mobil and this Court in Turner, “a district court is not divested of subject-matter

jurisdiction simply because a party attempts to litigate in federal court a matter previously

litigated in state court.” Id. (citing Exxon Mobil Corp., 544 U.S. at 292). Therefore, the

District Court erred in holding that the Rooker-Feldman doctrine deprived it of subject

matter jurisdiction over Rose’s first federal complaint.

       While we reject the District Court’s grounds for dismissing Rose’s first complaint

for lack of subject matter jurisdiction, we can affirm on other grounds. See id. at 548

(citing Wittekamp v. Gulf & W., Inc., 991 F.2d 1137, 1143 (3d Cir. 1993)). Specifically,

we will consider whether the doctrine of res judicata bars Rose’s first federal complaint.5

       A federal court refers to the preclusion law of the state in which judgment was

entered. See McNasby v. Crown Cork & Seal Co., Inc., 888 F.2d 270, 276 (3d Cir.




   5
      We note that the Defendants argued that res judicata barred Rose’s first federal
complaint in the District Court. Additionally, on appeal, the Defendants assert that if the
Rooker-Feldman doctrine does not apply, res judicata bars Rose’s claims raised in the
first federal complaint.

                                              7
1989)(quoting Marrese v. Am. Acad. of Orthopaedic Surgeons, 470 U.S. 373, 380

(1985)). Res judicata:

          bars a later action on all or part of the claim which was the subject of the
          first action. Any final, valid judgment on the merits by a court of competent
          jurisdiction precludes any future suit between the parties or their privies on
          the same cause of action. Res judicata applies not only to claims actually
          litigated, but also to claims which could have been litigated during the first
          proceeding if they were part of the same cause of action.

Balent v. City of Wilkes-Barre, 669 A.2d 309, 313 (Pa. 1995). For res judicata to apply,

the two actions must share the following four conditions: (1) the thing sued upon for; (2)

the cause of action; (3) the persons and parties to the action; and (4) the capacity of the

parties to sue or be sued. See Bearoff v. Bearoff Bros., Inc., 327 A.3d 72, 74 (Pa. 1974).

          Upon reviewing the Commonwealth Court’s decision, Rose v. Zoning Hearing Bd.

of City of Allentown, No. 1009 C.D. 2001 (Pa. Commw. Ct. Feb. 28, 2002), it is clear

that all of Rose’s claims raised in his first federal complaint are barred by res judicata.

The parties and the causes of action were the same in both the state and federal matters.

Furthermore, the Commonwealth Court entered a final judgment on the merits on all of

the claims raised in Rose’s first federal complaint. Indeed, the Commonwealth Court

stated:

          Rose argues that the ordinance violates his First Amendment right to
          freedom of speech, alleging that the [Zoning Hearing Board] is using the
          ordinance to limit erotic dancing. The ordinance is a content-neutral time
          restriction aimed at regulating the hours of operation for BYOBs, not the
          type of entertainment it can provide. In fact, the [Zoning Hearing Board]
          granted Rose’s 1993 special exception to permit the specific type of adult
          entertainment provided on the premises, and he has operated the adult

                                                8
       cabaret for the last eight years. Likewise, the Court finds no support for
       Rose’s contention that he was racially discriminated against and denied
       equal protection of the law.

Id. slip. op. at 7. Thus, it is clear that res judicata applies to bar the claims raised in

Rose’s first federal complaint.

       In his appellate brief, Rose argues that the District Court violated the law-of-the-

case doctrine by first denying the Defendants’ motion for summary judgment, and then

later dismissing the action. The Defendants argued that the Rooker-Feldman doctrine

should be applied in their summary judgment motion. The Supreme Court has stated that

the law-of-the-case doctrine merely expresses the practice of courts to generally refuse to

reopen what has been decided.       See Christianson v. Colt Indus. Operating Corp., 486

U.S. 800, 817 (1988). However, federal courts have a duty to examine their subject

matter jurisdiction at all stages of the litigation. See e.g., United States Express Lines

Ltd. v. Higgins, 281 F.3d 383, 388-89 (3d Cir. 2002). Here, the District Court

determined, albeit incorrectly, that it lacked subject matter jurisdiction pursuant to the

Rooker-Feldman doctrine. Regardless, the District Court could review whether it had

subject matter jurisdiction over the complaint. Thus, Rose’s law-of-the-case doctrine is

clearly without merit.

       Next, we will consider whether the District Court properly granted summary

judgment in favor of the Defendants on Rose’s second federal complaint. The District

Court found that the Rooker-Feldman doctrine barred Rose’s selective enforcement



                                                9
claim. Additionally, it determined that res judicata applied to the entire second federal

complaint.

       The District Court erred in finding that the Rooker-Feldman doctrine barred

Rose’s selective enforcement claim. In the second federal complaint, Rose alleged that

the Defendants were racially discriminatory when they denied his variance request to

allow the club to be open to 2:00 a.m. on Monday, Thursday, Friday and Saturday nights.

As previously noted, Rooker-Feldman “is confined to cases brought by state-court losers

complaining of injuries caused by state-court judgments rendered before the district court

proceedings commenced and inviting district court review and rejection of those

judgments.” See Exxon Mobil Corp., 544 U.S. at 484 (emphasis added). Here, Rose’s

selective enforcement claim was not caused by a state-court judgment. Therefore,

Rooker-Feldman is again inapplicable.

       We agree with the District Court that res judicata applies to Rose’s equal

protection (based on the lack of a state liquor license) claim and his free expression claim

under the Pennsylvania Constitution. The Court of Common Pleas denied both of these

claims. See Rose v. Zoning Hearing Bd. of City of Allentown, No. 2004-C-46 (Ct.

Common Pleas, Nov. 19, 2004). The Commonwealth Court of Pennsylvania affirmed the

denial of these claims. Rose v. Zoning Hearing Bd. of City of Allentown, No. 2706 C.D.

2004 (Pa. Commw. Ct. June 16, 2005). The parties are identical in this state action and in

the second federal complaint. Therefore, res judicata clearly applies.



                                             10
         Next, we find that the District Court erred in concluding that res judicata barred

Rose’s selective enforcement claim. With respect to this claim, the Pennsylvania

Commonwealth Court stated:

         Being a creature of statute, a zoning hearing board, or any court on appeal
         from a zoning hearing board’s decision, does not have the authority to
         address the type of discrimination claims Rose is raising in his appeal
         before this Court. Any arguments that Rose has been racially discriminated
         against by the City or the Board would have to be raised in an appropriate
         action in civil court.

Id. slip. op. at 8. Thus, we find that there was not a judgment on the merits of Rose’s

selective enforcement claim. We disagree that this claim should have been presented in

the 1999 state court litigation. Indeed, Rose asserts that the purported selective

enforcement occurred after the state court proceedings arising from the first variance

request were complete. Thus, res judicata does not bar Rose’s selective enforcement

claim.

         Neither res judicata nor the Rooker-Feldman doctrine is applicable to Rose’s

selective enforcement claim set forth in the second federal complaint. However, we will

affirm the grant of summary judgment in favor of the Defendants on alternative grounds.

See Turner, 449 F.3d at 547 (citation omitted).

         Rose asserts that the Defendants selectively enforced the city ordinances and

zoning laws against him because he is African-American. Rose alleged that white club

owners were given preferential treatment and that the Defendants selectively enforced the

city ordinances and zoning laws. The Equal Protection Clause prohibits selective

                                               11
enforcement of the law based on race. See Whren v. United States, 517 U.S. 806, 813

(1996); Thomas v. Independence Twp., – F.3d –, 2006 WL 2621094, at *9 (3d Cir. Sept.

14, 2006). A plaintiff can recover if it can be established that: “(1) the person, compared

with others similarly situated, was selectively treated, and (2) the selective treatment was

motivated by an intention to discriminate on the basis of impermissible considerations,

such as race.” Zahra v. Town of Southold, 48 F.3d 674, 683 (2d Cir. 1995); see also Hill

v. City of Scranton, 411 F.3d 118, 125 (3d Cir. 2005).

       In support of his claim, Rose references a “cabaret” club owned by Erv Fetherman

(hereinafter referred to as “Erv’s”), as similarly situated. Similar to Rose, Erv’s received

a special exception to operate his “cabaret” from noon to midnight, Monday through

Saturday. Erv’s requested a variance to operate from 8:00 a.m. to midnight, five days out

of a year. The Zoning Hearing Board granted the request after concluding that the

additional hours (twenty hours per year) were de minimus. Unlike Erv’s request, Rose’s

second variance request asked for over 400 hours of additional hours of operation per

year. We conclude that this difference precludes a finding that Rose’s club was similarly

situated to Erv’s. Thus, summary judgment was properly granted in favor of the

Defendants because there is no issue of material fact with respect to this selective

enforcement claim.

       In conclusion, we determine that the District Court erred in dismissing Rose’s first

federal complaint pursuant to the Rooker-Feldman doctrine. However, we will affirm the



                                             12
dismissal of the complaint because Rose’s claims are barred by res judicata. With respect

to Rose’s second federal complaint, we find that the equal protection claim (based upon

the lack of a state liquor license) and the free expression claim under the Pennsylvania

Constitution are also barred by res judicata. Additionally, we determine that Rose failed

to establish a material issue of fact with respect to his equal protection/selective

enforcement claim. Accordingly, we will affirm the judgments of the District Court.




                                              13
