United States District Court, N.D. Mississippi, Aberdeen Division
MEC, INC. d/b/a THE PONY PLAINTIFF
LOWNDES COUNTY BOARD OF SUPERVISORS; LOWNDES COUNTY CHANCERY CLERK; LOWNDES COUNTY, MISSISSIPPI; and JOHN DOES 1-10 DEFENDANTS
OPINION GRANTING DEFENDANTS' MOTION FOR SUMMARY
before the Court is the Defendants' motion for summary
judgment [Doc. No. 38]. Upon due consideration, the Court
finds that the motion should be granted and the Plaintiffs
Factual and Procedural Background
2008, the Plaintiff MEC, Inc. d/b/a/ The Pony, has operated
an adult entertainment club (known as The Pony) on Highway 45
Alternate North in Lowndes County. On August 15, 2013, the
Defendant Lowndes County Board of Supervisors ("the
Board of Supervisors") passed an ordinance known as the
Nightclubs and Nightclub Promoter Ordinance ("the
Ordinance") that restricts, inter alia, the
operating hours of nightclubs in Lowndes County. See
Ordinance, Doc. No. 37-2. The Ordinance further provides that
nightclubs may apply for a "restaurant exemption"
to the Ordinance's restricted hours provision, which, if
approved by the Board of Supervisors, will permit qualifying
establishments to maintain longer operating hours than
nightclubs are allowed under the Ordinance. Id.
February 10, 2015, the Plaintiff applied to the Board of
Supervisors for a restaurant exemption under the Ordinance.
See Plaintiffs Amended Compl., Doc. No. 35, at
¶ 6. Following a September 10, 2015, hearing in front of
the Board's Nightclub Regulation Committee ("the
Committee"), the Committee unanimously recommended that
the Plaintiffs request for an exemption be denied.
See Denial of Exemption, Doc. No. 37-7. The
Plaintiff appealed that recommendation to the full Board of
Supervisors, which held public hearings on the Plaintiffs
request on November 13, 2015, and again on December 7, 2015.
See Transcript of Proceedings and Minutes of
Proceedings, Doc. No. 37-7. Following the December 7, 2015,
public hearing, the Board of Supervisors voted 3-2 to deny an
exemption to the Plaintiff, stating in its written Order that
the Committee and the Board were "not satisfied the
business was in fact a bona-fide restaurant and separate from
the nightclub operation." See Board Order, Doc.
No. 37-6; and Minutes of Proceedings, Doc. No. 37-7.
Plaintiff then timely appealed the Board of Supervisors'
Order to the Circuit Court of Lowndes County on December 16,
2015, via a Bill of Exceptions (subsequently amended on June
30, 2016), in which the Plaintiff appealed the denial of its
application for a restaurant exemption and alleged that the
Ordinance was unconstitutional and that its provisions
amounted to a "taking" of the Plaintiffs property
rights (the same claims as asserted in the case sub
judice). That court held a hearing on the appeal on July
21, 2016, and on January 6, 2017, issued an Order that denied
and dismissed with prejudice the Plaintiffs appeal on the
merits, specifically holding both that there was no
"taking" of the Plaintiffs property or deprivation
of its due process rights, and that the Board of
Supervisors' decision was not arbitrary or capricious.
See Circuit Court Order, Doc. No. 37-8. The
Plaintiff did not appeal the Circuit Court of Lowndes
County's Order to the Mississippi Supreme Court.
litigation followed, with the Plaintiff filing its Amended
Complaint on May 25, 2017, asserting that the Ordinance's
provisions resulted in an unlawful taking of the Plaintiffs
property and that the Defendants' conduct has violated
the Plaintiffs due process rights. Plaintiff seeks, inter
alia, compensatory and punitive damages as well as an
immediate restaurant exemption under the Ordinance.
See Plaintiffs Amended Compl., Doc. No. 35, at pp.
3-5. Defendants now move for summary judgment as to the
Summary Judgment Standard
Court grants summary judgment "if the pleadings, the
discovery and disclosure materials on file, and any
affidavits show that there is no genuine dispute as to any
material fact and that the movant is entitled to judgment as
a matter of law." See Fed. R. Civ. P. 56(a);
Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106
S.Ct. 2548, 91 L.Ed.2d 265 (1986); Weaver v. CCA Indus.,
Inc., 529 F.3d 335, 339 (5th Cir. 2008). The rule
"mandates the entry of summary judgment, after adequate
time for discovery and upon motion, against a party who fails
to make a sufficient showing to establish the existence of an
element essential to that party's case, and on which that
party will bear the burden of proof at trial."
Celotex Corp., 477 U.S. at 322, 106 S.Ct. 2548.
party moving for summary judgment bears the initial
responsibility of informing the Court of the basis for its
motion and identifying those portions of the record it
believes demonstrate the absence of a genuine dispute of
material fact. See Id. at 477 U.S. 323, 106 S.Ct.
2548. Under Rule 56(a), the burden then shifts to the
nonmovant to "go beyond the pleadings and by . . .
affidavits, or by the 'depositions, answers to
interrogatories, and admissions on file, ' designate
'specific facts showing that there is a genuine issue for
trial.' " Id. at 477 U.S. 324, 106 S.Ct.
2548; Little field v. Forney Indep. Sch. Dist, 268
F.3d 275, 282 (5th Cir. 2001); Willis v. Roche Biomedical
Labs., Inc., 61 F.3d 313, 315 (5th Cir. 1995). When the
parties dispute the facts, the Court must view the facts and
draw reasonable inferences in the light most favorable to the
non- moving party. See Scott v. Harris, 550 U.S.
372, 378, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (internal
citations omitted). "However, a nonmovant may not
overcome the summary judgment standard with conclusional
allegations, unsupported assertions, or presentation of only
a scintilla of evidence." McClure v. Boles, 490
Fed.Appx. 666, 667 (5th Cir. 2012) (per curiam) (citing
Hathaway v. Bazany, 507 F.3d 312, 319 (5th Cir.
Analysis and Discussion
Defendants argue that summary judgment is appropriate on all
claims asserted in the case sub judice because,
inter alia, the claims are barred by the doctrine of
res judicata. Specifically, the Defendants argue
that application of the doctrine ofres judicata is
proper because the claims and issues to be litigated in the
case sub judice were previously litigated and
dismissed with prejudice by the Circuit Court of Lowndes
the judgment at issue was issued by the Circuit Court of
Lowndes County, which is a state court, the Court must look
to Mississippi law in applying the doctrine of res
judicata. 28 U.S.C. § 1738; see Kremer v.
Chemical Construction Corp., 456 U.S. 461, 481-482, 102
S.Ct. 1883, 1897, 72 L.Ed.2d 262 (1982) ("It has long
been established that § 1738 does not allow federal
courts to employ their own rules of res judicata in
determining the effect of state judgments. Rather, it goes
beyond the common law and commands a federal court to accept
the rules chosen by the State from which the judgment is
taken."); see also Marrese v. Am. Acad, of
Orthopaedic Surgeons, 470 U.S. 373, 380, 105 S.Ct. 1327,
1331-32, 84 L.Ed.2d 274 (1985); Allen v. McCurry,
449 U.S. 90, 96, 101 S.Ct. 411, 415, 66 L.Ed.2d 308
(1980); Griffin v. Am. Zurich Ins. Co., 697
Fed.Appx. 793, 797 (5th Cir. 2017), as revised (June
8, 2017); Cox v. Nueces Cty., 839 F.3d 418, 421
& n.3 (5th Cir. 2016).
the Court refers to Mississippi law, which states that
res judicata applies to judgments that are
"final and on the merits, " and provides that
"when a court of competent jurisdiction enters a final
judgment on the merits of an action, the parties or their
privies are precluded from re-litigating claims that were
decided or could have been raised in that
action." Anderson v. LaVere,895 So.2d 828, 833
(Miss. 2004) (emphasis added); Dean v. Mississippi Bd. Of
Bar Admissions, 394 Fed.App'x 172, 175