United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
CHARLES A. SHAW, UNITED STATES DISTRICT JUDGE.
matter is before the Court on plaintiff Kevin Barbier's
motion for partial summary judgment on liability pursuant to
Federal Rule of Civil Procedure 56(a) (Doc. 16) and motion
for preliminary injunction (Doc. 17). Defendants Missouri
Real Estate Commission, Sherry Farrell, Cynthia Fox, William
Gratz, Sharon Keating, Stephen Kenny, and Charles Misko
oppose both motions and they are fully briefed. For the
following reasons, both motions will be denied.
filed this action on August 22, 2019 against the Missouri
Real Estate Commission and its six members
(“defendants”) in their official capacities
pursuant to 42 U.S.C. § 1983. Plaintiff is a real estate
broker who has been licensed in Illinois and Missouri since
June 27, 2011 and December 10, 2014, respectively. Plaintiff
is the sole shareholder and president of Quality Rental
Properties, Inc. which is incorporated in Illinois, but does
business in Missouri under the name “Barbier Agency,
Inc.” Defendants are the Missouri Real Estate
Commission (“MREC”) and its six members, Sherry
Farrell, Cynthia Fox, William Gratz, Sharon Keating, Stephen
Kenny, and Charles Misko (collectively
“defendants”). The MREC is a statutorily created
body for the purpose of, among other things, granting and
regulating the licensure of real estate brokers in Missouri.
See Mo. Rev. Stat. §§ 339.010-.180,
alleges defendants “promulgated 20 CSR §
2250-5.020 under the authority of Missouri Revised Statutes
§ 339.060, which establishes the Licensing Fees for real
estate licensees” and, in doing so, violated the
Privileges and Immunities Clause of the United States
Constitution by charging non-Missouri citizens higher real
estate renewal and application licensing fees than they
charge similarly situated Missouri citizens. Doc. 1 at
¶¶ 13-18. Plaintiff alleges defendants do not have
a substantial governmental reason for the difference in
treatment between Missouri and non-Missouri citizens as it
applies to real estate license renewal and application fees
and, as a result, 20 CSR § 2250-5.020 must be declared
unconstitutional and the MREC must be enjoined from enforcing
the disproportionate fees. Id. at ¶ 19. On
October 20, 2019, plaintiff filed a motion for partial
summary judgment and a motion for preliminary injunction.
Motion for Partial Summary Judgment on Liability
standards applicable to summary judgment motions are well
settled. Pursuant to Federal Rule of Civil Procedure 56(a), a
court may grant a motion for summary judgment if all of the
information before the court shows “there is no genuine
dispute as to any material fact and the moving party is
entitled to judgment as a matter of law.” See
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
initial burden is placed on the moving party. City of Mt.
Pleasant, Iowa v. Associated Elec. Co-op., Inc., 838
F.2d 268, 273 (8th Cir. 1988) (the moving party has the
burden of clearly establishing the non-existence of any
genuine issue of fact that is material to a judgment in its
favor). Once this burden is discharged, if the record shows
that no genuine dispute exists, the burden then shifts to the
non-moving party who must set forth affirmative evidence and
specific facts showing there is a genuine dispute on a
material factual issue. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 249 (1986).
the burden shifts, the non-moving party may not rest on the
allegations in its pleadings, but by affidavit and other
evidence must set forth specific facts showing that a genuine
issue of material fact exists. Fed.R.Civ.P. 56(c);
Herring v. Canada Life Assur. Co., 207 F.3d 1026,
1029 (8th Cir. 2000); Allen v. Entergy Corp., 181
F.3d 902, 904 (8th Cir. 1999).
argues he should be granted partial summary judgment on
liability because the Privileges and Immunities Clause of the
United States Constitution (the “Clause”)
“prohibits States from discriminating against another
State's citizen's unjustifiably.” Doc. 16 at 4.
Plaintiff cites to Supreme Court of New Hampshire v.
Piper, 470 U.S. 274, 284 (1985), which states that the
Clause “does not preclude discrimination against
nonresidents where (i) there is a substantial reason for the
difference in treatment; and (ii) the discrimination
practiced against nonresidents bears a substantial
relationship to the State's objective.” Plaintiff
argues defendants are liable for discrimination in violation
of the Clause because the MREC and its commission members
unjustifiably charge him greater application and renewal fees
than a Missouri citizen.
oppose plaintiff's motion on the basis that he “has
not shown that there are no material facts in dispute as to
whether there is a substantial reason and State interest for
the different treatment of Missouri and non-Missouri
residents as it applies to real estate license renewal and
application fees.” Doc. 19 at 2. Defendants argue that
because no discovery has been conducted in this case, the
Court cannot accept plaintiff's assertion that there are
no undisputed material facts in this case relevant to the
issue of whether defendants have ...