United States District Court, D. Colorado
SUREN TATUYLAN and PET SISTERS, a Florida charitable organization, Plaintiffs,
CITY OF AURORA, and JENEE aka JENNEE SHIPMAN, in her individual and official capacity, Defendants.
RAYMOND P. MOORE UNITED STATES DISTRICT JUDGE.
matter is before the Court on Plaintiffs' Motion for
Temporary Restraining Order (“Motion”) (ECF No.
31), requesting an order to restrain Defendants from
euthanizing Plaintiffs' dog, Bandit, pending the final
outcome of this case. Defendants filed a response, to which
Plaintiffs did not reply. Thereafter, the Court sua
sponte directed the parties to brief the application, if
any, of the Rooker-Feldman doctrine. The Motion is
now ripe for consideration. Upon consideration of the Motion,
Response, the Rooker-Feldman briefs, the court file,
and the applicable rules, case law, statutes, and Aurora
Municipal Ordinances, and being otherwise fully advised, the
Motion is DENIED.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiffs' second motion requesting temporary injunctive
relief. Their first motion for temporary restraining order
was denied for failure to show the requirements for relief
are met. The Court denied the first motion without prejudice.
The second Motion, along with the record, shows the
Suren Tatulyan (“Mr. Tatulyan”) resides in
Aurora, Colorado where he owns a dog named Bandit. In Aurora,
pit bulls are a restricted breed.
January 4, 2017, Bandit bit a FedEx driver who was delivering
a package at Mr. Tatulyan's residence. (See
Scheduling Order, Undisputed Facts at ¶2, ECF No. 27.)
The City of Aurora impounded Bandit and issued a Notice of
Hearing Regarding Disposition of Animal
(“Notice”), charging Mr. Tatulyan with violations
of four sections of the Aurora Municipal Code
(“Code”), and setting a disposition
hearing/arraignment date for January 13, 2017. The Notice
stated that “[t]he City Attorney will request that the
Court hear any relevant, admissible evidence either party
desires to submit regarding appropriate disposition of this
animal.” (ECF No. 35-1.) The Notice also advised:
“YOU ARE URGED TO PRESENT ANY EVIDENCE
YOU DEEM RELEVANT TO THE APPROPRIATE
DISPOSITION OF THE ANIMAL.” (Id.
(emphasis in original).)
Tatulyan appeared pro se at the hearing with his
son, Albert Tatulyan (“Son”), who speaks English.
At the hearing, Judge Dion Arguelles of the Aurora Municipal
Court asked Son if Mr. Tatulyan has a vision or language
issue, to which Mr. Tatulyan replied “vision.”
(ECF No. 35-2, page 1.) The Aurora Court then engaged in a
colloquy with Mr. Tatulyan in English. Mr. Tatulyan advised
the Aurora Court that his native language is Russian, but he
has been in the United States for almost 20 years, using,
speaking, and writing English. (ECF No. 35-2, page
The Aurora Court specifically asked Mr. Tatulyan whether he
would “feel that you'd be better off with a Russian
interpreter, ” but he declined. After “find[ing]
that we are conversing in English, it seems, adequately,
” the Aurora Court proceeded with the hearing on the
charge of aggressive or dangerous animal. (ECF No. 35-2,
pages 2, 4.) The issue of whether Bandit is a restricted
breed was continued until the DNA test results were obtained.
(ECF No. 35-2, page 3.) At the end of that hearing, the
Aurora Court found that Bandit posed a danger to the
community and ordered Bandit surrendered to Animal Care for
disposition (the “Surrender Order”). (ECF No.
35-2, page 6.)
Tatulyan retained an attorney after that hearing, whose
request for a translator was granted. There were apparently
two other hearings before the Aurora Court after the impound
hearing. One hearing involved Mr. Tatulyan's request to
allow his expert to conduct a “SAFER test” on
Bandit, to evaluate his temperament. Such request was
allegedly denied. Instead, Defendant Aurora conducted a Mars
Wisdom DNA test.
other hearing occurred on March 29, 2017, before Judge Shawn
Day. (ECF No. 31-1.) As shown by the transcript of that
hearing, as relevant here, three things occurred. First, Mr.
Tatulyan's attorney informed Judge Day that she had filed
an appeal to the Arapahoe District Court of the Surrender
Order. Next, Mr. Tatulyan, with the assistance of counsel,
pled guilty to three of the four charges (the fourth was
dismissed) and waived his right to appeal. Those charges
were: dog running at large; keeping an aggressive or
dangerous animal; and unlawful keeping of a restricted breed
of dog. Mr. Tatulyan did not, however, waive his right to
appeal the Surrender Order.
Tatulyan, however, filed but did not continue his appeal of
the Surrender Order. Instead, on August 24, 2017, he
transferred a one-half interest in Bandit to Pit Sisters.
And, on September 1, 2017, Mr. Tatulyan (and Pit Sisters)
filed the lawsuit now before this Court. Mr. Tatulyan
thereafter let his state court appeal be dismissed for
failure to file his opening brief.
their third complaint (“Complaint”), Plaintiffs
bring one claim under 42 U.S.C. § 1983, the denial of
due process “regarding the seizure of bandit.”
Although not a model of clarity, it appears Plaintiffs
challenge the process Mr. Tatulyan was afforded before the
Aurora Court. Specifically, Plaintiffs contend that their due
process rights were violated because (1) Mr. Tatulyan
allegedly required an interpreter but was not provided or
offered one at the January 13, 2017, impound
hearing; (2) Mr. Tatulyan allegedly was not
provided a meaningful opportunity to present evidence or
represent himself at the impound hearing; and (3) Defendants
allegedly refused to conduct (or allow Mr. Tatulyan to
conduct) a SAFER test on Bandit to evaluate his temperament.
issue now is Plaintiffs' second motion for temporary
restraining order. The Motion, unfortunately, still falls
short of showing the extraordinary relief requested may be
the Rooker-Feldman doctrine,  federal courts
lack subject matter jurisdiction over “cases brought by
state-court losers complaining of injuries caused by
state-court judgments rendered before the federal district
court proceedings commenced and inviting district court
review and rejection of those judgments.” Exxon
Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280,
III standing is jurisdictional. Therefore, “where the
record reveals a colorable standing issue, [courts] have a
duty to undertake an independent examination (sua
sponte if necessary) of that issue.” In re
Peeples, 880 F.3d 1207, 1212 (10th Cir. 2018) (quotation
marks and citation omitted). Standing requires a plaintiff to
have: “‘(1) suffered an injury in fact, (2) that
is fairly traceable to the challenged conduct of the
defendant, and (3) that is likely to be redressed by a
favorable judicial decision.'” In re
Peeples, 880 F.3d at 1212 (quoting Spokeo, Inc. v.
Robins, ___ U.S. ___, 136 S.Ct. 1540, 1547, 194 L.Ed.2d
635 (2016)). A plaintiff bears the burden of showing such
requirements are met. In re Peeples, 880 F.3d at
Motion is titled as a request for a temporary restraining
order (“TRO”) but requests relief until the final
determination of this case. In addition, the Motion is not
ex parte but, rather, fully briefed after notice.
See Fed. R. Civ. P. 65(a) & (b). The Motion also
fails to cite to D.C.COLO.LCivR 65.1 or attach a proposed
order for the Court's consideration. Thus, it is more in
the nature of a request for preliminary injunction. See
Brown v. Colorado, No. 16-cv-02018-DME-NYW, 2017 WL
4075139, at *2 (D. Colo. Sept. 14, 2017), report and
recommendation adopted without objection by Order entered
December 5, 2017 (Ebel, J.). Regardless, as the relevant
requirements are the same, the Court will consider the Motion
as a request for a TRO or, in the alternative, a preliminary
order to obtain injunctive relief, the plaintiff must
establish: “‘(1) a substantial likelihood of
prevailing on the merits; (2) irreparable harm unless the
injunction is issued; (3) that the threatened injury
outweighs the harm that the preliminary injunction may cause
the opposing party; and (4) that the injunction, if issued,
will not adversely affect the public interest.'”
Diné Citizens Against Ruining our Environment v.
Jewell, 839 F.3d 1276, 1281 (10th Cir. 2016) (quoting
Davis v. Mineta, 302 F.3d 1104, 1111 (10th Cir.
2002)); Watts v. Karmichael Family, LLC, No.
07-cv-00638-MSK-MJW, 2007 WL 1059051, at *1 (D. Colo. Apr. 4,
2007) (unpublished) (motion for temporary restraining order
is examined under same standards applicable to requests for
preliminary injunction). The Tenth Circuit no longer applies
a “modified test” for determining preliminary
injunctive relief, finding it inconsistent with the Supreme
Court's decision in Winter v. Natural Resources
Defense Council, Inc., 555 U.S. 7 (2008).
Diné Citizens, 839 F.3d at 1282.
“Because a preliminary injunction is an extraordinary
remedy, the movant's right to relief must be clear and
unequivocal.” Diné Citizens, 839 F.3d
at 1281 (citation and quotation marks omitted).
argue the Rooker-Feldman doctrine applies while
Plaintiffs argue it does not. While Plaintiffs raise a number
of arguments, the Court finds one has merit. Plaintiffs
contend the doctrine does not apply because the state court
action must have been concluded prior to the commencement of
the federal action. The Court agrees.
to the Supreme Court's decision in Exxon Mobil Corp.,
supra, the courts applied the doctrine to state court
decisions which were not final. Guttman v. Khalsa,
446 F.3d 1027, 1031 (10th Cir. 2006). “Under Exxon
Mobil, Rooker-Feldman applies only to suits
filed after state proceedings are final.”
Guttman, 446 F.3d at 1032; see also D.A.
Osguthorpe Fam. P'ship v. ASC Utah, Inc., 705 F.3d
1223, 1232 (10th Cir. 2013). Thus, in Guttman, the
Tenth Circuit found that a plaintiff's federal lawsuit
was not barred where his petition for certiorari to the New
Mexico Supreme Court was pending when he filed the federal
lawsuit. This was so even though plaintiff's petition for
certiorari was denied just one month (May 16, 2003) after his
federal lawsuit was filed (April 17, 2003). Guttman,
446 F.3d at 1030, 1032.
case, Plaintiffs filed their federal lawsuit on September 1,
2017 (ECF No. 1). Mr. Tatulyan's appeal before the
Arapahoe County District Court was still pending. It was not
dismissed until September 11, 2017, 10 days later. (ECF ...