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Tatulyan v. City of Aurora

United States District Court, D. Colorado

February 28, 2018

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.



         This 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.


         This is 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 following.[1]

         Plaintiff Suren Tatulyan (“Mr. Tatulyan”) resides in Aurora, Colorado where he owns a dog named Bandit. In Aurora, pit bulls are a restricted breed.

         On 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).)

         Mr. 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 2.)[2] 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.)[3]

         Mr. 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.

         The 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.

         Mr. 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.

         In 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;[4] (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.

         At issue now is Plaintiffs' second motion for temporary restraining order. The Motion, unfortunately, still falls short of showing the extraordinary relief requested may be had.

         II. STANDARD

         A. Rooker-Feldman

         Under the Rooker-Feldman doctrine, [5] 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, 283 (2005).

         B. Standing

         Article 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 1212.

         C. Injunctive Relief

         Plaintiffs' 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 injunction.

         In 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”[6] 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).

         III. ANALYSIS

         A. Rooker-Feldman

         Defendants 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.

         Prior 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.

         In this 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 ...

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