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Barbier v. Missouri Real Estate Commission

United States District Court, E.D. Missouri, Eastern Division

December 20, 2019

KEVIN BARBIER, Plaintiff,
v.
MISSOURI REAL ESTATE COMMISSION, et al., Defendants.

          MEMORANDUM AND ORDER

          CHARLES A. SHAW, UNITED STATES DISTRICT JUDGE.

         This 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.

         I. Background

         Plaintiff 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, 339.710-.860.

         Plaintiff 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.

         II. Discussion

         A. Motion for Partial Summary Judgment on Liability

         1. Legal Standard

         The 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).

         The 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).

         Once 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).

         2. Discussion

         Plaintiff 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.

         Defendants 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 ...


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