IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

BELLAGIO PARTNERS LLC, §

HAI C. VU, d/b/a Blue Star, §
SANGWAN ANUSAN, d/b/a §
Aloha Spa and d/b/a Cleopatra §
Day Spa, SOON D. YOON, d/b/a §
Hawaii Spa, ANTONIO FLORES, d/b/a §
Jasmine, PHABOON PROMNIANG, §
d/b/a Moon Night, REGINALD §
VILLAVIDENDIO, d/b/a The Passion, §
SOK UN NG, d/b/a 333 Bodyworks, §
LARRY KELLER, d/b/a 7th Heaven §
Plaintiffs, §
§
v. § CIVIL ACTION NO. 3-09-CV-2369-K
§ ECF
CITY OF DALLAS, §
Defendant. §

CITY’S BRIEF ON PLAINTIFFS’ REQUESTS FOR INJUNCTIVE RELIEF

TO THE HONORABLE COURT:

The City of Dallas (the “City”), Defendant, hereby files its arguments and authorities

regarding the requests for injunctive relief of Dallas Bellagio Partners LLC et al., Plaintiffs. The

Court should deny the requests because Plaintiffs cannot show that injunctive relief is

appropriate.

I. Background

Plaintiffs, Bellagio Partners LLC, Hai C. Vu, d/b/a Blue Star, Sangwan Anusan, d/b/a

Aloha Spa and d/b/a Cleopatra Day Spa, Soon D. Yoon, d/b/a Hawaii Spa, Antonio Flores, d/b/a

Jasmine, Phaboon Promniang, d/b/a Moon Night, Reginald Villavidendio, d/b/a the Passsion,

Sok Un Ng, d/b/a 333 Bodyworks, Larry Keller, d/b/a 7th Heaven, filed this suit on December

City’s Brief on Plaintiffs’ Requests for Injunctive Relief Page 1

11, 2009, and have not served the City. Plaintiffs challenge Dallas City Code chapter 25A (App.

A). Plaintiffs claim as follows:

• Chapter 25A and the revocation of Plaintiffs’ certificates of occupancy are a facial and

as-applied violation of Plaintiffs’ procedural and substantive due process rights under the

United States Constitution and the Texas Constitution. (Complaint at 7.)

• Chapter 25A is overbroad and vague, facially and as applied to Plaintiffs, in its

definitions of “massage” and “massage establishment.” (Complaint at 7.)

• The City’s alleged “targeted” enforcement of Chapter 25A is discriminatory. (Complaint

at 8.)

• Chapter 25A violates Texas Occupations Code section 455.05(c) because it is more

restrictive for massage therapists or massage establishments than for other health care

professionals or establishments. (Complaint at 8.)

• For certain Plaintiffs whose businesses are closed by the City’s enforcement of Chapter

25A, the City has taken Plaintiffs’ property without just or adequate compensation under

the Fifth Amendment to the United States Constitution and article I, section 17 of the

Texas Constitution. (Complaint at 8.)

Plaintiffs seek the following relief:

• a declaratory judgment “that Dallas City Code Chapter 25A is an unconstitutional

violation of the United States Constitution and Texas Constitution, both facially and as

applied to Complainants”;

• preliminary and permanent injunctions against the enforcement of chapter 25A, including

but not limited to section 25A-2, of the city code;

City’s Brief on Plaintiffs’ Requests for Injunctive Relief Page 2

 • actual damages and/or nominal damages of $1 for the violation of Plaintiff’s

constitutional rights; and

• attorney fees, costs, and expenses.

(Complaint at 9-10.)

The evidence at the preliminary injunction hearing will show that all Plaintiffs have

received letters from the City’s building official revoking their certificates of occupancy at the

premises at issue. The evidence will also show that the revocations were based on information

that the premises at issue were being operated as a massage establishment for which a license

was required under Texas Occupations Code section 455.151 and Dallas City Code section 25A-

2. Furthermore, the evidence will show that the certificates of occupancy were revoked because

each application for a certificate of occupancy did not state that the use would be operated as a

massage establishment, nor did the applicant supply a copy of a massage establishment license.

Finally, the City anticipates that the evidence will show that Plaintiffs are in various stages of the

process of enforcement of section 455.151:

• One or more Plaintiffs have timely appealed to the board of adjustment from the building

official’s revocation decision, or the time to appeal has not expired.

• One or more Plaintiffs have not timely appealed to the City’s board of adjustment.

• One or more Plaintiffs have timely appealed to the board of adjustment and have timely

appealed to state district court for substantial evidence review of the board’s decision

affirming the building official’s decision, or the time to appeal has not expired.

• One or more Plaintiffs have timely appealed to the board of adjustment but have not

timely appealed to state district court for substantial evidence review of the board’s

decision affirming the building official’s decision.

City’s Brief on Plaintiffs’ Requests for Injunctive Relief Page 3

 Plaintiff Dallas Bellagio Partners, L.L.C. (which according to the Texas Secretary of

State, forfeited its existence in 2008), operates a “spa” known as “Bellagio” at 2018 W.

Northwest Highway, Ste. B2, Dallas County, Dallas, Texas (“Bellagio”). The city’s building

official revoked Bellagio’s Certificate of Occupancy on August 25, 2009. Bellagio (through an

individual self-identified as Un Sun Toner-Chang) appealed the building official’s decision to the

city’s Board of Adjustment (the “Board”). A hearing before the Board was scheduled for

November 16, 2009. On November 16, 2009, the Board denied Bellagio’s appeal when Bellagio

failed to appear for the hearing. Bellagio did not seek district court review of the Board’s

decision.

Plaintiff Sangwan Anusan claims in this lawsuit to own and operate a “spa” located at

2110 W. Northwest Highway, Suite B, Dallas County, Dallas, Texas, known as “Aloha.” The

city’s building official revoked the Certificate of Occupancy for this business on April 21, 2009.

An individual self-identified as Waraporn Songmuang and claiming to be the owner/operator of

the business, appealed the building official’s decision to the city’s Board of Adjustment. After a

hearing on August 17, 2009, the Board denied Songmuang’s appeal. Songmuang appealed the

Board’s decision to state district court, and that case is currently pending in the 191st Judicial

District, cause number 09-12121. The City did not assert a counterclaim for injunctive relief

because the business had ceased operating.

Plaintiff Sangwan Anusan also claims in this lawsuit to own and operate a “spa” located

at 2110 W. Northwest Highway, Suite A, Dallas County, Dallas, Texas, known as “Cleopatra.”

The city’s building official also revoked the Certificate of Occupancy for this business on April

21, 2009. An individual self-identified as Jimmy Gibson and claiming to be the real property

owner of the location, appealed the building official’s decision to the city’s Board of Adjustment.

City’s Brief on Plaintiffs’ Requests for Injunctive Relief Page 4

 After a hearing on August 17, 2009, the Board denied Gibson’s appeal. When the

business continued to operate without a Certificate of Occupancy, the city sued Mr. Gibson in

state district court for injunctive relief and civil penalties under cause number 09-11306. In this

suit, the city’s obtained an agreed temporary injunction enjoining Mr. Gibson from operating or

allowing the operation of a business on the property without a Certificate of Occupancy. That

case is currently pending in the 134th Judicial District for Dallas County. In a separate case, an

individual self-identified as Phaiboon Promwaing and claiming to be the owner/operator of

Cleopatra, filed suit requesting an appeal of the Board’s decision. That case is currently pending

in the 44th Judicial District for Dallas County, cause number 09-12124. The City did not assert a

counterclaim in this case for injunctive relief because the business had ceased operating.

Plaintiff Phaiboon Promniang claims in this lawsuit to own and operate a “spa” known as

“Moon Night” located at 11308 Emerald Street, Ste. 102, Dallas County, Dallas Texas. The

city’s building official revoked the Certificate of Occupancy for this business on May 15, 2009.

Promniang appealed the building official’s decision to the city’s Board of Adjustment. After a

hearing on September 15, 2009, the Board denied the appeal. Promniang did not appeal the

Board’s decision to state district court.

Plaintiff Larry Keller claims in this lawsuit to own and operate a” relaxation studio”

known as “Seventh Heaven” located at 2520 Electronic Street, Ste. 801, Dallas County, Dallas,

Texas. The city’s building official revoked the Certificate of Occupancy for this business on July

29, 2009. Keller appealed the building official’s decision to the city’s Board of Adjustment.

After a hearing on October 19, 2009, the Board denied Keller’s appeal. Keller appealed the

Board’s decision to state district court, and that case is currently pending in the 116th Judicial

City’s Brief on Plaintiffs’ Requests for Injunctive Relief Page 5

District for Dallas County, cause number 09-14471. The City has asserted counterclaims for

injunctive relief and civil penalties.

Plaintiff Soon D. Yoon claims in this lawsuit to own and operate a “spa” known as

“Hawaii Spa” located at 2006 Market Center Blvd., Ste. A, Dallas County, Dallas, Texas. The

city’s building official revoked the Certificate of Occupancy for this business on August 25,

2009. Yoon appealed the building official’s decision to the city’s Board of Adjustment. A

hearing before the Board was scheduled for November 16, 2009. On November 16, 2009, the

Board denied the appeal when Yoon failed to appear for the hearing. Yoon did not seek district

court review of the Board’s decision.

Plaintiff Hai C. Vu claims in this suit to own and operate a “spa” known as “Blue Star”

located at 11309 Emerald , Ste. C, Dallas County, Dallas, Texas. The city’s building official

revoked the Certificate of Occupancy for this business on April 28, 2009. Vu appealed the

building official’s decision to the city’s Board of Adjustment. A hearing before the Board was

scheduled for November 17, 2009. On November 17, 2009, the Board denied the appeal when

Vu failed to appear for the hearing. Vu did not seek district court review of the Board’s decision.

Plaintiff Antonio Flores claims in this lawsuit to own and operate a “spa” known as

“Jasmine” located at 11309 Emerald Street, Ste. A, Dallas County, Dallas Texas. The city’s

building official revoked the Certificate of Occupancy for this business on August 25, 2009.

Flores did not appeal the building official’s decision.

Plaintiff Reginald Villavidendio claims to own and operate a “spa” known as “Passion”

located at 11309 Emerald Street, Ste. B, Dallas County, Dallas Texas. The city’s building official

revoked the Certificate of Occupancy for this business on April 28, 2009. Villavidendio did not

seek district court review of the Board’s decision.

City’s Brief on Plaintiffs’ Requests for Injunctive Relief Page 6

 Plaintiff Sok Un Ng claims in this lawsuit to own and operate a “spa” known as “333

Bodyworks” located at 2642 Walnut Hill Lane, Ste. 100, Dallas County, Dallas, Texas. The

city’s building official revoked the Certificate of Occupancy for this business on July 1, 2009.

Ng did not appeal the building official’s decision to the city’s Board of Adjustment. When the

business did not cease operating, the city filed a lawsuit against Ng seeking injunctive relief and

civil penalties. That case is currently pending in the 14th Judicial District for Dallas County,

cause number 09-15354.

II. Argument and Authorities

A. Standard of Review

The purpose of a preliminary injunction is to preserve the status quo pending either a

permanent injunction or a trial on the merits. The necessary elements to demonstrate the

appropriateness of a preliminary injunction are

(1) a substantial likelihood of success on the merits, (2) a

substantial threat of irreparable injury if the injunction is not
issued, (3) that the threatened injury if the injunction is denied
outweighs any harm that will result if the injunction is granted, and
(4) that the grant of an injunction will not disserve the public
interest.

Speaks v. Kruse, 445 F.3d 396, 399-400 (5th Cir. 2006) (internal quotations omitted). If factual

disputes are involved, the district court is required to conduct an evidentiary hearing before

issuing a preliminary injunction. See, e.g., Kaepa, Inc. v. Achilles Corp., 76 F.3d 624, 628 (5th

Cir. 1996.) If no factual dispute is involved, an evidentiary hearing is not required, and the

parties need only be given ample opportunity to present their views on the legal issues involved.

Id.

City’s Brief on Plaintiffs’ Requests for Injunctive Relief Page 7

B. Applicable Penal Provisions and Administrative Procedures

Under Texas law, the governing body of a municipality is authorized to regulate the use

of buildings for business, industrial, residential, or other purposes. Tex. Loc. Gov’t Code

§ 211.003(a)(5). The Dallas City Code prohibits the use or occupancy of a structure without a

certificate of occupancy. Dallas, Tex., Code §§ 51A-1.104, 52-306.1 (App. at 1, 4). A person

commits an offense if he uses a structure in violation of any provision of chapter 52 of the Dallas

City Code, including section 52-306.1. Id. § 52-210.1 (App. at 2). A person who violates

chapter 52 is guilty of a separate offense for each day or portion of a day during which the

violation occurred, and each offense is punishable by a fine not to exceed $2,000. Id. §§ 51A-

1.103, 52-210.3 (App. at 2A, 3.) In addition to imposing the criminal penalty, the City may

bring a civil action against a person violating a provision of chapter 52 to recover a civil penalty.

Id. § 52-210.4 (App. at 3); Tex. Loc. Gov’t Code § 211.012(b).

State law allows the governing body of a municipality to provide for the appointment of a

board of adjustment. Tex. Loc. Gov’t Code § 211.008(a). The City has a board of adjustment.

Dallas, Tex., Code § 51A-3.102 (App. at 5). The board of adjustment may hear and decide an

appeal from a decision made by an administrative official in the enforcement of subchapter A

(“General Zoning Regulations”) of Texas Local Government Code chapter 211 or an ordinance

adopted under that subchapter. Tex. Loc. Gov’t Code § 211.009(a)(1).

The City’s building official is required to revoke a certificate of occupancy if the building

official determines that the certificate of occupancy is issued in the basis of false, incomplete, or

incorrect information, the use is being operated in violation of the Dallas Development Code,

other city ordinances, or any state laws or regulations, or a required license to operate the use has

not been issued. Dallas, Tex., Code § 52-306.13(2)-(3), (5) (App. at 7-8). A person aggrieved

City’s Brief on Plaintiffs’ Requests for Injunctive Relief Page 8

by the building official’s decision may appeal to the board of adjustment. Tex. Loc. Gov’t Code

§ 211.010(a)(1). The appeal must be filed within a reasonable time as determined by the rules of

the board. Id. § 211.010(b). A determination by the building official is final unless appealed

within 15 days after receipt of the determination. Dallas, Tex., Code §§ 51A-4.703(a)(2), 52-

306.15(2) (App. at 8). An appeal stays all proceedings in furtherance of the action that is

appealed unless the official certifies in writing to the board facts supporting the official’s opinion

that a stay would cause imminent peril to life or property. Tex. Loc. Gov’t Code § 211.010(c).

A person aggrieved by the decision of the board of adjustment may present to a district

court, county court, or county court at law a verified petition stating that the decision of the

board of adjustment is illegal in whole or in part and specifying the grounds of the illegality. Id.

§ 211.011(a)(1). The petition must be presented within 10 days after the date the decision is

filed in the board’s office. Id. § 211.011(b). On presentation of the petition, the court may grant

a writ of certiorari directed to the board to review the board’s decision. Id. § 211.011(c). On

application and after notice to the board, the court may grant an order restraining enforcement of

the board’s order if due cause is shown. Id. At the hearing, the court may take evidence or

appoint a referee to take evidence that is determined to be necessary for the proper disposition of

the matter. Id. § 211.011(d). The court applies a substantial evidence standard of review, and

the ultimate question is whether the board abused its discretion. E.g., City of Lubbock v.

Bownds, 623 S.W.2d 752, 755-56 (Tex. App.—Amarillo 1981, no pet.) (citing Currey v. Kimple,

577 S.W.2d 508, 512 (Tex. Civ. App.—Texarkana 1978, writ ref’d n. r. e.)), disapproved of on

other grounds, Davis v. Zoning Bd. of Adjustment, 865 S.W.2d 941, 942 (Tex. 1993).

City’s Brief on Plaintiffs’ Requests for Injunctive Relief Page 9

C. The claims of some Plaintiffs are barred by administrative res judicata.

To the extent some Plaintiffs have appealed to the City’s board of adjustment, that board

has affirmed the building official’s decision, and the deadline to appeal to district court has

expired but those Plaintiffs have not appealed, those Plaintiffs’ claims are barred by both res

judicata and collateral estoppel. Texas courts would give the board’s fact-findings preclusive

effect because the board acts in a judicial capacity and affords parties a full and fair opportunity

to litigate. See Igal v. Brightstar Tech. Group, Inc., 250 S.W.3d 78, 86-89 (Tex. 2007). In

University of Tennessee v. Elliott, 478 U.S. 788, 799 (1986), the Supreme Court held that a

presumption in favor of the common law doctrines of preclusion applies to the fact findings of

state administrative tribunals. In Astoria Federal Savings and Loan Association v. Solimino, 501

U.S. 104 (1991), the Court confirmed that the application of claim and issue preclusion “holds

true when a court has resolved an issue, and should do so equally when the issue has been

decided by an administrative agency, be it state or federal, which acts in a judicial capacity. Id.

at 108 (citation omitted; citing Univ. of Tenn. v. Elliott, 478 U.S. at 798). The Fifth Circuit has

explained that the rule fashioned in Elliott allows courts “to determine whether common law

preclusion should apply . . . [to administrative fact-finding by considering] whether the policies

favoring full faith and credit, including repose and federalism concerns . . . outweigh the federal

interest present.” Am. Airlines, Inc. v. Dep’t of Transp., 202 F.3d 788, 800 (5th Cir. 2000).

Res judicata, or claim preclusion, prevents the relitigation of a claim or cause of action

that has been finally adjudicated, as well as related matters that, with the use of diligence, should

have been litigated in the prior suit. See Barr v. Resolution Trust Corp. ex rel. Sunbelt Fed.

Savs., 837 S.W.2d 627, 628-29 (Tex. 1992). “The doctrine is intended to prevent causes of

action from being split, thus curbing vexatious litigation and promoting judicial economy.”

City’s Brief on Plaintiffs’ Requests for Injunctive Relief Page 10

Ingersoll-Rand Co. v. Valero Energy Corp., 997 S.W.2d 203, 207 (Tex. 1999) (citing Barr, 837

S.W.2d at 629). The elements of res judicata under Texas law are: (1) a prior final judgment on

the merits by a court of competent jurisdiction; (2) identity of parties or those in privity with

them; and (3) a second action based on the same claims that were raised or could have been

raised in the first action. Igal, 250 S.W.3d at 86.

The scope of res judicata is not limited to matters actually litigated; the judgment in the

first suit precludes a second action by the parties and their privies not only on matters actually

litigated, but also on causes of action or defenses which arise out of the same subject matter and

which might have been litigated in the first suit. Barr, 837 S.W.2d at 630 (emphasis in original).

There is no dispute that the revocation of Plaintiffs certificates of occupancy is the same

transaction out of which arises both this lawsuit and the board of adjustment proceeding. If

Plaintiffs should have added their constitutional claims to the judicial review that was available

to them in state court. Because they failed to pursue those claims and the decision of the board

of adjustment became final, res judicata bars their claims in this Court.

C. This Court should abstain from exercising jurisdiction over the claims of those
Plaintiffs whose certificate of occupancy revocations have not been finally reviewed
by the board of adjustment or a state court.

The appeals by some Plaintiffs are pending administrative review before the City’s board

of adjustment or are pending judicial review of the board’s decision in state court. As to those

appeals, this Court and the board or state court are exercising concurrent jurisdiction of the same

subject matter, and the declaratory relief that Plaintiff requests in this case would directly

interfere with the pending administrative and judicial review proceedings. This Court should

dismiss the claims of those Plaintiffs without prejudice, and those Plaintiffs should raise and

exhaust their claims in the pending state proceedings before seeking federal-court intervention.

City’s Brief on Plaintiffs’ Requests for Injunctive Relief Page 11

 The Supreme Court held in Younger v. Harris, 401 U.S. 37, that a federal court may not

enjoin a pending state criminal proceeding unless there is a threat of great and immediate

irreparable injury. The Court wrote that abstention was necessary in the interest of

‘comity,’ that is, a proper respect for state functions, a recognition

of the fact that the entire country is made up of a Union of separate
state governments, and a continuance of the belief that the National
Government will fare best if the States and their institutions are left
free to perform their separate functions in their separate ways.
This, perhaps for lack of a better and clearer way to describe it, is
referred to by many as ‘Our Federalism’ . . . . What the concept
does represent is a system in which there is sensitivity to the
legitimate interests of both State and National Governments, and in
which the National Government, anxious though it may be to
vindicate and protect federal rights and federal interests, always
endeavors to do so in ways that will not unduly interfere with the
legitimate activities of the States.

Id. at 44. In a companion case, Samuels v. Mackell, 401 U.S.66 (1971), the Court recognized

that the Younger prohibition applies also to intervention by way of declaratory relief.

The Younger doctrine is not limited to state criminal proceedings but also applies to “civil

proceedings in which important state interests are involved.” Moore v. Sims, 442 U.S. 415, 423

(1979). This extension of Younger was first recognized in Huffman v. Pursue, Ltd. 420 U.S. 592

(1975), in which the Court found the doctrine to apply with equal force when the parallel state

proceeding was a nuisance action brought by law enforcement authorities to close down a theater

for showing obscene movies. The Court noted that Younger rested in part on the traditional

reluctance of equity courts to interfere with criminal proceedings, but reasoned that the parallel

state proceeding there, although civil in character,

in important respects is more akin to a criminal prosecution than

are most civil cases. The State is a party to the Court of Common
Pleas proceeding, and the proceeding is both in aid of and closely
related to criminal statutes which prohibit the dissemination of
obscene materials. Thus, an offense to the State’s interest in the
nuisance litigation is like to be every bit as great as it would be

City’s Brief on Plaintiffs’ Requests for Injunctive Relief Page 12

 were this a criminal proceeding. Similarly, while in this case the
District Court’s injunction has not directly disrupted Ohio’s
criminal justice system, it has disrupted that State’s efforts to
protect the very interests which underlie its criminal laws and to
obtain compliance with precisely the standards which are
embodied in its criminal laws.

Id. At 604-05 (citation omitted). The Supreme Court has also found the following types of state

civil proceedings to be appropriate for federal abstention: civil contempt, see Juidice v. Vail, 430

U.S. 327 (1977); civil enforcement action seeking return of fraudulently obtained welfare

checks, see Trainor v. Hernandez, 431 U.S. 434 (1977); state proceeding to seize custody of

abused children, see Moore v. Sims, 442 U.S. 415 (1979); attorney discipline proceeding, see

Middlesex Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423 (1982); enforcement of

judgment for damages, see Pennzoil Co. v. Texaco, Inc., 481 U.S. 1 (1987).

In considering whether Younger abstention applies, then, this Court

must answer three relevant questions: (1) whether the state

proceedings “constitute an ongoing state judicial proceeding;” (2)
whether the proceedings “implicate important state interests:” and
(3) whether there is “an adequate opportunity in the state
proceedings to raise constitutional challenges.”

Louisiana Debating & Literary Ass’n v. City of New Orleans, 42 F.3d 1483, 1490 (5th Cir. 1995)

(quoting County Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 432 (1982)). All three

of these conditions are met in this case.

First, the state administrative and court cases are “judicial” and furthermore are

“ongoing.” Younger abstention can be applied to “state administrative proceedings in which

important state interests are vindicated, so long as in the course of those proceedings, the federal

plaintiff would have a full and fair opportunity to litigate his constitutional claim.” Ohio Civil

Rights Comm’n v. Dayton Christian Schs., Inc., 477 U.S. 619, 627 (1986). In this case, Plaintiffs

will have a full and fair opportunity to litigate their constitutional claims upon state-court judicial

City’s Brief on Plaintiffs’ Requests for Injunctive Relief Page 13

review. The test for whether a state judicial proceeding is “ongoing” so as to invoke the Younger

doctrine is not whether the state proceeding was commenced before the federal case was filed

but rather whether the state proceeding was commenced “before any proceedings of substance on

the merits have taken place in the federal court.” Hicks v. Miranda, 422 U.S. 332, 349 (1975).

Because there have been no proceedings on the merits of this case, the administrative and

judicial review proceedings are “ongoing.”

Second, the City has an important interest in acting through its board of adjustment and

the state courts to prevent violations of its certificate of occupancy requirement without

interference by the federal courts. Here, as was the case in Huffman, the City is a party to the

concurrent state case. The state case is a “proceeding both in aid of and closely related to [a]

criminal statute[]” because it is an action to prevent conduct that is an offense under the Dallas

City Code Finally, in the state proceedings the City is acting to protect the same interest that

underlies the penalties for a violation of the certificate of occupancy requirement and to obtain

compliance with that requirement.

Third, the Texas Rules of Civil Procedure provide “an opportunity to fairly pursue

Plaintiff’s constitutional claims in the ongoing state proceedings,” Justice v. Vail, 430 U.S. at

337. See Tex. R. Civ. P. 51(a); Moore v. Sims, 442 U.S. at 426 (“On this point, Texas law is

apparently as accommodating as the federal forum.”) & n.9 (noting that rule 51 is modeled on

Federal Rule of Civil Procedure 18 and that “Texas procedural law has long encouraged joinder

of claims in civil actions”).

Because this case falls squarely within the principles of Younger and its progeny, this

Court should abstain and allow the state proceedings to proceed without interference.

City’s Brief on Plaintiffs’ Requests for Injunctive Relief Page 14

D. The Anti-Injunction Act prohibits this Court from interfering with state-court
proceedings to which some Plaintiffs are parties.

The Anti-Injunction Act provides:

A court of the United States may not grant an injunction to stay

proceedings in a State court except as expressly authorized by Act
of Congress, or where necessary in aid of its jurisdiction, or to
protect or effectuate its judgments.

28 U.S.C. § 2283. Thus, the Act prohibits federal courts from enjoining proceedings in state

courts unless the injunction falls within one of three exceptions. Atl. Coast Line R.R. v.

Brotherhood of Locomotive Eng’rs, 398 U.S. 281, 286-87 (1970). This prohibition applies even

where, as here, the injunction would technically be directed at a litigant instead of the state court

proceeding itself. Id. Courts must construe the exceptions to the Anti-Injunction Act narrowly

and resolve doubts in favor of letting the state action proceed. Kan. Pub. Employees Retirement

Sys. v. Reimer & Koger Assocs., 77 F.3d 1063, 1068 (8th Cir. 1996).

Any preliminary injunction in this case must not include those Plaintiffs who are parties

to pending state-court proceedings in which the City is enforcing its certificate of occupancy

requirement.

E. Conclusion and Prayer

Plaintiffs cannot show that a preliminary injunction is appropriate. Some Plaintiffs’

claims are barred by administrative res judicata, and other claims are subject to Younger

abstention. Finally, the Anti-Injunction Act prohibits the requested preliminary injunction

insofar as it would interfere with pending state-court enforcement proceedings.

Respectfully submitted,

THOMAS P. PERKINS, JR.

Dallas City Attorney

s/ James B. Pinson
Texas Bar No. 16017700
City’s Brief on Plaintiffs’ Requests for Injunctive Relief Page 15
 Christopher J. Caso
Texas Bar No. 03969230
Melissa A. Miles
Texas Bar No. 90001277
Assistant City Attorneys

Office of the City Attorney

1500 Marilla Street, Room 7BN
Dallas, Texas 75201-6318
Telephone: 214-670-1330
Telecopier: 214-670-0622
james.pinson@dallascityhall.com

Counsel for the City of Dallas

CERTIFICATE OF FILING AND SERVICE

I certify that on December 16, 2009, I electronically filed the foregoing document with

the clerk of court for the United States District Court for the Northern District of Texas using the

electronic case failing system of the court. The electronic case filing system sent a “Notice of

Electronic Filing” to all counsel of record who have consented in writing to accept this Notice as

service of this document by electronic means.

s/ James B. Pinson

City’s Brief on Plaintiffs’ Requests for Injunctive Relief Page 16