LMSP, LLC v. Town of Boone, 818 S.E.2d 314

LMSP, LLC sued Town of Boone in federal court challenging Boone’s towing ordinance (Chapter 73) as unconstitutional and beyond Boone’s authority; that federal action was pending.
While the federal case was pending, Boone amended the towing ordinance (Nov. 17 and Dec. 15, 2016).
LMSP then filed a new state-court action asserting only state-law claims (N.C. Gen. Stat. § 160A-174, due process, equal protection, right to earn a livelihood, and an open-meetings claim for the Dec. 15 amendments).
The state-court plaintiff moved for a preliminary injunction; Judge Letts denied it, finding the complaint likely barred by the prior-action-pending doctrine and that plaintiff had not shown irreparable harm.
The Town moved to dismiss under Rule 12(b)(6); Judge Doughton granted dismissal on prior-action-pending grounds, and LMSP appealed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the prior-action-pending doctrine bars the state action	The amended state claims raise different issues (different ordinance language; added open-meetings claim) and thus are not substantially identical to the federal action	The federal action and the state action involve the same parties, same subject (towing ordinance), and substantially identical issues and relief, so the state suit is barred	Court held doctrine applies; state action dismissed as duplicative of pending federal action
Whether a preliminary injunction should issue	LMSP argued injunction necessary to prevent irreparable harm from enforcement of the ordinance amendments	Town argued plaintiff could not show likelihood of success because the action was likely barred and thus injunction was inappropriate	Court affirmed denial: plaintiff failed to show likelihood of success and irreparable harm given the prior-action-pending bar

Clark v. Craven Reg'l Med. Auth., 326 N.C. 15 (N.C. 1990) (test for substantial identity between actions; prior-action-pending doctrine applicability)
State ex rel. Onslow County v. Mercer, 128 N.C. App. 371 (N.C. Ct. App. 1998) (prior-action-pending is a plea in abatement; governs dismissal when earlier action pending)
McDowell v. Blythe Bros. Co., 236 N.C. 396 (N.C. 1951) (action is pending for abatement from issuance of summons until final judgment)
City of Chicago v. Int'l Coll. of Surgeons, 522 U.S. 156 (U.S. 1997) (supplemental jurisdiction permits federal court to resolve related state-law claims in the same case or controversy)
Ridge Community Investors, Inc. v. Berry, 293 N.C. 688 (N.C. 1977) (standards for issuing a preliminary injunction: likelihood of success and irreparable harm)
Shoaf v. Shoaf, 219 N.C. App. 471 (N.C. Ct. App. 2012) (subsequent action that is wholly unnecessary may be abated)