Challenging the Nuisance Abatement Action July 12, 2012

Transcription

First Amendment Lawyers Ass’n
Prior Restraint Offshoot: Challenging the Nuisance Abatement Action
July 12, 2012 Conference
Chicago, Illinois
Motion for Stay and TRO . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Motion for Stay and TRO Reply . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Order (April 20, 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Motion for Leave to Supplement Complaint and Gather Discovery . . . . . . . . . . . . . . . . . . . . . . 42
Motion for Leave to Supplement Complaint and Gather Discovery Reply . . . . . . . . . . . . . . . . . 56
Order (June 6, 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
Letter to Georgia Attorney General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
Presented by:
Cary S. Wiggins
Wiggins Law Group
Suite 401
260 Peachtree St., NW
Atlanta, GA 30303
Telephone: (404) 659-2880
[email protected]
Reed Lee, Esq.
J.D. Obenberger & Assoc.
3700 Three First National Plaza
Chicago IL 60602-4208
Telephone: (312) 558-6427
Case 1:09-cv-02747-RLV Document 200
Filed 03/09/12 Page 1 of 18
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
FLANIGAN’S ENTERPRISES, INC. OF
GEORGIA, et al.,
Plaintiffs,
-vsCITY OF SANDY SPRINGS, GEORGIA,
Defendant.
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Civil Action File No.
1:09-CV-2747-RLV
PLAINTIFFS’ MOTION TO STAY
THE CITY’S NUISANCE ABATEMENT ACTION, OR,
IN THE ALTERNATIVE,
MOTION FOR TEMPORARY INJUNCTIVE RELIEF
I.
Introduction.
With trepidation and frustration the plaintiffs seek
this Court’s help.
Immediately after the plaintiffs filed
their brief opposing the City’s motion for summary judgment
[Doc. 158], the City sued them in state court.
In the best
light for the City, its new lawsuit is a blackletter First
Amendment retaliation; the City did not like what it read,
so it sued the plaintiffs.
In the worst light, the suit is
an indirect method to derail this Court’s ability to resolve
this case.
Either explanation warrants the relief requested
by the plaintiffs.
(A status conference might aid the Court
and parties at this point.)
II.
Background.
In this case, in October 2011, the City moved for
1
summary judgment.
[See Doc. 148.]
In Maxim Cabaret, the
related state court case,1 the parties had by then filed
cross-motions for summary judgment.
In Maxim Cabaret, on November 28, Judge Henry Newkirk
heard oral argument on summary judgment.
Within a few days
of that hearing, the Flanigan’s plaintiffs filed their
opposition brief to the City’s summary judgment motion.
[See Doc. 158.]
During the oral argument in Maxim Cabaret
held on November 28, Main Stage argued that it had not been
ticketed (nor had its management or employees been arrested)
for committing any crime during its six years of operating
in the City; and in the summary judgment response in
Flanigan’s filed on December 1, the plaintiffs argued that
the City had neglected to review its crime data before
adopting the adult entertainment ordinances.
[See Doc. 158
at 57; see also Doc. 159-1 at 68 (ECF page #) n.43.]
Two weeks later, the City sued the plaintiffs and Main
Stage in state court.
See City of Sandy Springs v. 6420
Roswell Rd., Inc., et al., Case No. 2011-CV-209162 (Fulton
County Superior Court, filed December 13, 2011)(“the
1
Maxim Cabaret, Inc. v. City of Sandy Springs, Case
No. 2006-cv-110997 (Fulton County Superior Court, filed Jan.
10, 2006)(“Maxim Cabaret”). The Maxim Cabaret plaintiff now
operates under the trade name “Main Stage.”
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Nuisance Action”).2
The allegation: These adult businesses
are committing or allowing crimes to occur on their
premises.
More particularly, with the Nuisance Action the
City seeks injunctive relief ordering the defendants to
cease operating in violation of certain adult entertainment
ordinances and O.C.G.A. § 16-6-16 (“masturbation for hire”).
The complaint prays for “an order taxing all costs to
Defendants, and providing such other relief, including but
not limited to attorney fees, sanctions, damages, and other
monetary relief against Defendants, as th[e] Court deems
just and proper.”
See Ex. A, Compl. at 14, ¶ 57(d).
When filing the suit, the City moved for an
interlocutory injunction to enjoin the defendants from
violating (or allowing violations of) certain City adult
entertainment laws (Sandy Springs Code §§ 26-24(b)(4), 2629(d), 26-29(e)(3), 26-29(e)(2)(b) & (e)(2)(e)) and O.C.G.A.
§ 16-6-16.
See Ex. B.
On January 6, 2012, after reviewing the Nuisance
2
In addition to corporate defendants (i.e., 6420
Roswell Rd., Inc., Flanigan’s Enterprises, Inc. of Georgia,
Maxim Cabaret, Inc. and Fantastic Visuals, LLC), the
Nuisance Action initially named these individual defendants:
Harry “Mario” Freese, Tamara Corazalla, Kylie Rodgers,
Joseph McCranie, P. Gregory Phifer, Rick Peffer, Michael
Fulton, David Lamb, Theo M. Lambros, Grant Davis, Apostolos
Kakaroumbas and Jamie Olsafsky.
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Action, the undersigned wrote to the City’s attorney and
requested that the City dismiss the Nuisance Action, noting
that the City conspicuously did not sue the other so-called
adult entertainment businesses (e.g., Love Shack and Extreme
Video) who did not challenge the City’s adult entertainment
ordinances in court.
See Ex. C.
In response to this letter, the City amended its
complaint and motion for injunctive relief to include
Anastasia Properties, LLC (“Love Shack”) as a defendant.
See Ex. D.
Then the City, through its private Tennessee-
based attorney, responded to the January 6 letter and
declined to dismiss the Nuisance Action.
See Ex. E.
On February 22, the defendants (meaning those
represented by the undersigned) moved the Fulton County
Superior Court to stay the proceedings or at least to extend
the time for answering the complaint.
See Ex. F. Even
though that motion is pending, the parties have since
stipulated to extending the deadline for filing an answer
and responsive pleadings to March 29, 2012.
See Ex. G.
III. Argument.
The City’s decision to sue the plaintiffs and Main
Stage is almost certainly a knee-jerk reaction to summary
judgment arguments.
Any other explanation should be met
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with a healthy dose of skepticism.
For this and other
reasons detailed below, the plaintiffs request that the
Court (1) stay the Nuisance Action so that it can decide
summary judgment en route to a final judgment, or, at least
(2) enjoin the City from enforcing the adult entertainment
ordinances against the plaintiffs until such time, if ever,
the City can demonstrate that those ordinances are in fact
valid.3
A.
The Court should stay the Nuisance Action.
1.
Standard of Review.
“Although federal courts are instructed to tread
carefully when considering whether to stay state court
proceedings, as such a decision directly implicates the
‘very delicate balance struck between the federal and state
judicial systems,’ Wesch v. Folsom, 6 F.3d 1465, 1469 (11th
Cir. 1993), the decision is ultimately left to the district
court’s sound discretion.”
Bayshore Ford Trucks Sales, Inc.
3
On February 7, 2012, the City amended its adult
entertainment and alcoholic beverage ordinances yet again.
[See Docs. 191-1, 191-3 & 191-5.] It appears that, since
December 1, 2005, the City has amended (or repealed) its
licensing, zoning, and public safety ordinances (relating to
adult entertainment or alcoholic beverages) at least 18
times. Virtually every one of those amendments, one can
safely assume, was prompted by this litigation or by Maxim
Cabaret.
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v. Ford Motor Co. (In re Ford Motor Co.), 471 F.3d 1233,
1250 (11th Cir. 2006)(internal citation omitted).
In this
Circuit, “a decision staying a state court proceeding” is
reviewed under the abuse-of-discretion standard.
2.
Id.
The Stay.
In the Nuisance Action, the City has asked the state
court to issue a “permanent injunction” ordering the
plaintiffs to comply with the City’s adult entertainment
laws.
See Ex. A, at p. 13, ¶¶ 57(a)&(b)(addressing “Sandy
Springs Code § 26-24(b)(4) and § 26-29(d)” and “§ 2629(e)(2)(b) and (e)(2)(e).”).4
In Flanigan’s the plaintiffs
are challenging whether the City’s adult entertainment
ordinances are enforceable in their entirety.
Which means
the City is asking a state court to enjoin federal
plaintiffs (including their owners or management) from
violating an adult entertainment licensing scheme that a
federal court is reviewing on summary judgment.5
4
As mentioned earlier, after the undersigned pointed
out that the City had sued only those adult businesses which
had sued it, the City amended the Nuisance Action to name
Love Shack (an adult business which has not sued the City).
See Ex. D, ¶¶ 17, 51-2, 55; see also id. at pp. 13-14, ¶¶
60(a)&(b)(addressing “Sandy Springs Code § 26-24(b)(4) and §
26-29(d)” and “§ 26-29(e)(2)(b) and (e)(2)(e).”).
5
See Doc. 166 (order of 1/11/12 indicating that the
Court “wants to address the legal and factual issues on the
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To further complicate matters, the City appears to
ground its claims in the Nuisance Action largely on an
alleged breach of the Rule 41(a)(2) dismissal and
stipulation which governs Flanigan’s.
Compl. ¶¶ 27-30.
See Ex. D, First Am.
So, not only is the City asking a state
court to adjudicate the core issue (i.e., the res) of
Flanigan’s, it is asking a state court judge to interpret
the operative terms of a pending Rule 41 order.
If the Nuisance Action proceeds, the plaintiffs here
face a dilemma: they must raise and litigate any compulsory
counterclaims or risk waiving them.
Although the plaintiffs
did not choose to litigate their federal claims in state
court, the City has chosen that forum to press the subject
matter of this federal lawsuit.
a permanent injunction.
The state court could issue
If that happens, and if the
plaintiffs do not first raise and litigate any compulsory
counterclaims they might have to defeat the City’s request
for injunctive relief, the plaintiffs may face a res
judicata defense in this Court.
The City downplays this scenario.
It characterizes
merits....”).
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these concerns as “puzzling,”6 stating that if the
“[d]efendants believe they have compulsory counterclaims
that they must raise in [the Fulton County Superior Court],
so be it....”7
The City adds that the establishments “do
nothing to explain how injunctive relief” would “have
preclusive effect ... upon their constitutional challenges
that are pending in the federal court.”8
better.
The City knows
Res judicata bars not only matters that actually
were adjudicated, but also those matters that could have
been put into controversy between the parties.
See Sanders
v. Trinity Universal Ins. Co., 285 Ga. App. 705, 707 (2007).
More to the point, when a defendant’s compulsory
counterclaims involve the same underlying facts as a
plaintiff’s claims (i.e., the subject matter is the same),
those counterclaims must be brought in that action –- or
they are waived and subject to res judicata.
See Perret v.
Sumner, 286 Ga. App. 379, 381 (2007)(“Under these
circumstances, the negligence and breach of contract
allegations were compulsory counterclaims to the Cherokee
6
Ex. H at 4.
7
Ex. H at 5.
8
Ex. H at 4-5.
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County litigation.
The Perretts not only had the
opportunity to litigate these claims in Cherokee County,
they were required to do so.
And as we have found: ‘A party
may not raise issues arising out of the same transaction
which should have been pled as a compulsory counterclaim in
another separate suit.
If the first suit is completed, then
res judicata serves to bar proceeding with the second
action.’
Moreover, res judicata applies to matters ‘put in
issue’ or matters ‘which under the rules of law might have
been put in issue.’ The Perretts, therefore, cannot avoid
the res judicata bar simply because the merits of their
compulsory counterclaim were never addressed.”); see also
Setlock v. Setlock, 286 Ga. 384, 386 (2010)(“To avoid
potential waiver of his counterclaims that arose out of the
transaction or occurrence that was the subject matter of
Steven’s dispossessory action, Eugene was required to raise
them in magistrate court.”)(citation omitted); Bennett v.
Cotton, 244 Ga. App. 784 (2000).
In the Nuisance Action, the City argues that it is
merely requesting a permanent injunction requiring the
businesses to “comply with conduct regulations they already
agreed to follow ....”
Ex. H at 4.
That is the problem.
The plaintiffs agreed to follow certain adult laws as a
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Filed 03/09/12 Page 10 of 18
condition to re-filing this federal suit to challenge the
City’s then-existing adult entertainment laws; those adult
laws are part of a licensing scheme that the plaintiffs are
challenging in its entirety.
While the City is correct that
the plaintiffs agreed to comply with some of the adult
entertainment laws (and of course not “to violate any state
or federal law”), the plaintiffs are not agreeing that these
are, in fact, valid laws.
And if the plaintiffs do not
challenge the validity of those laws by counterclaim in the
Nuisance Action, they risk res judicata here.
See Franklin
v. Gwinnett County Pub. Schs., 200 Ga. App. 20, 24-25
(1991).
The Court has the authority to stay the Nuisance
Action.
See All Writs Act, 28 U.S.C. § 1651(a); but see
Anti-Injunction Act, 28 U.S.C. § 2283 (“A court of the
United States may not grant an injunction to stay
proceedings in a State court except as expressly authorized
by Act of Congress, or where necessary in aid of its
jurisdiction, or to protect or effectuate its judgments.”).
Two exceptions in the Anti-Injunction Act apply here.
First, because Flanigan’s is a § 1983 action, it is an
expressly-authorized breed of suit under the Act.
Mitchum v. Foster, 407 U.S. 225, 242-43 (1972).
See
Second,
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Filed 03/09/12 Page 11 of 18
given that Flanigan’s has been pending for years, and that
the Court is reviewing the City’s summary judgment motion, a
state court order granting permanent injunctive relief will
“seriously impair” this Court’s ability to decide
Flanigan’s.
Cf. Atl. Coast Line R.R. Co. v. Bhd. of
Locomotive Eng’rs, 398 U.S. 281, 295 (1970)(language of
exception implies that “some federal injunctive relief may
be necessary to prevent a state court from so interfering
with a federal court’s consideration or disposition of a
case as to seriously impair the federal court’s flexibility
and authority to decide that case.”).
The problem, as
explained above, is that the state court might create a
claim- or issue-preclusion defense for the City here, which
would prevent this Court from reaching the merits of
Flanigan’s.
To protect this Court’s ability to resolve this longrunning case, it can and should enjoin the Nuisance Action.
A great deal of effort has been expended gathering evidence
in this case.
How this Court evaluates that evidence could
affect whether the laws being challenged are valid.
The
Eleventh Circuit has recognized that “[c]ontrol over the res
is fundamental to the district court’s ability to render
judgment in the case; i.e., a final decision with respect to
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Filed 03/09/12 Page 12 of 18
the res necessarily affect the rights of all persons having
an interest in the res.”
471 F.3d at 1251.
Bayshore Ford Trucks Sales, Inc.,
Here, if the res is a bevy of content-
based laws, every citizen of the City has an interest in how
the res is handled.9
B.
The Court should grant injunctive relief.
1.
Standard of Review.
The Eleventh Circuit has held that “a TRO or
preliminary injunction is appropriate where the movant
demonstrates that: (1) there is a substantial likelihood of
success on the merits; (2) the TRO or preliminary injunction
is necessary to prevent irreparable injury; (3) the
threatened injury outweighs the harm that the TRO or
preliminary injunction would cause to the non-movant; and
(4) the TRO or preliminary injunction would not be averse to
the public interest.”
Parker v. State Bd. of Pardons and
Paroles, 275 F.3d 1032, 1034-35 (11th Cir. 2001)(citation
and footnote omitted).
9
If the Court is reluctant to enjoin the Nuisance
Action, it could effectively accomplish the same result by
issuing a temporary restraining order enjoining the City’s
enforcement of the ordinances and statute cited in the
complaint during the pendency of this Court’s review on
summary judgment. See § B, infra.
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2.
Filed 03/09/12 Page 13 of 18
The TRO.10
Ever since Young v. American Mini Theatres, Inc., 427
U.S. 50 (1976), the Supreme Court has permitted cities to
adopt content-based laws to zone adult businesses
differently from non-adult businesses (when justified, of
course).
But there is no authority that allows a City to
corral a group of its adult businesses and adjudicate their
individual operations as a collective nuisance.
is chilling.
The tactic
The businesses that the City initially
targeted for investigation -- and then sued for nuisance
abatement –- share no ownership; they share no location; not
coincidentally, it is alleged, the only thing they do share
is the designation of “plaintiff” in lawsuits against the
City.
A strong argument exists that the City’s predominant
concern for adopting the type of adult entertainment laws it
did (and in the ways that it did) was to censor speech.
An
equally strong argument exists that the “effect” of these
laws will be to zone out adult entertainment from the City.
10
Given that the plaintiffs must answer (or respond)
to the Nuisance Action by March 29, they ask that this Court
consider expediting any procedure to entertain this motion.
See LR 65.2. Opposing counsel will receive this notice via
CM/ECF. See LR 7.5B.
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Filed 03/09/12 Page 14 of 18
Compare City of Los Angeles v. Alameda Books, Inc., 535 U.S.
425, 449 (2002)(Kennedy, J., concurring in the judgment)
(noting that “a city must advance some basis to show that
its regulation has the purpose and effect of suppressing
secondary effects, while leaving the quantity and
accessibility of speech substantially intact.”); id. (“[a]
city may not assert that it will reduce secondary effects by
reducing speech in the same proportion.”) & id. at 450
(reasoning that “[i]t is no trick to reduce secondary
effects by reducing speech or its audience.”) with Doc. 1585, Phifer Decl. of 9/18/09 ¶¶ 4, 7, 16 (detailing importance
of alcohol to nightclub offering nude dancing in the City of
Sandy Springs) & Doc. 158-8, Phifer Decl. of 11/30/11 ¶¶ 4-6
(detailing efforts to relocate).
The injury to the plaintiffs far outweighs any harm
that a TRO might cause the City.
For purposes of this
motion, the plaintiffs seek to operate undisturbed in their
current format.
If the City determines that the plaintiffs
are violating laws unrelated to protected speech or
expression, it certainly has options short of lumping the
plaintiffs (and their management) as defendants to a mass
lawsuit.
By arguing that its lawsuit concerns claims
addressing only “conduct regulations,” the City misses the
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forest for the trees.11
Filed 03/09/12 Page 15 of 18
The plaintiffs face irreparable
injury if the City is permitted to corral and sue them as a
collective nuisance for “crimes” that, until now, have never
been mentioned, much less prosecuted.12
The granting of a TRO will not disserve the public
interest.
The City cannot contend that immediate, harmful
consequences to the public interest will flow from granting
11
See Ex. H at 2-5 (stating 11 times that the
Nuisance Action targets “conduct” only). These regulations
are nonetheless content-based. The City does not apply the
“no touch” rule to its dance studios like Atlanta Ballroom
Dance Centre (http://www.atlantaballroomdancecentre.com) or
PasoFino Latin Dance Studio
(http://www.pasofinodance.com/atlanta), where patrons and
dancers touch one another.
12
The City’s decision to sue the plaintiffs, their
owners, and management for allegedly allowing violations of
O.C.G.A. § 16-6-16 is an abuse of power. Historically, and
in the limited instances when that statute (adopted in 1933)
has been cited, it has been applied primarily to massage
parlors. Those types of businesses, unlike the plaintiffs,
are not First Amendment-protected businesses. Cf. FW/PBS,
Inc. v. Dallas, 493 U.S. 215, 228 (1990)(plurality)(applying
procedural safeguards of Freedman v. Maryland, 380 U.S. 51
(1965) to the city’s sexually oriented businesses because “a
First Amendment-protected business must be issued within a
reasonable period of time, because undue delay results in
the unconstitutional suppression of protected speech.”).
Just the threat of applying § 16-6-16 as a back-up to a “notouch” ordinance chills performances. But even if the City
truly believes that this antiquated criminal statute is
being violated by performers or patrons, the available
remedy is to enforce it against the parties to the crime;
the plaintiffs are not vicariously liable for crime. See
Davis v. Peachtree City, 251 Ga. 219 (1983).
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an injunction.
Filed 03/09/12 Page 16 of 18
It has been over six years since the City
took over regulation of the plaintiffs.
Yet the City has
been unable to show that so-called secondary effects even
exist, let alone whether the City has a “reasonable basis”
for believing that the plaintiffs are to blame for such
effects.
If the previous 15 versions of the ordinances were
flawed, why or how the City can credibly claim that the
current versions are constitutionally unflappable is not
clear.
As always, “[t]he public interest is served by the
maintenance of First Amendment freedoms and could not
possibly be served by the enforcement of an unconstitutional
Ordinance.”
Howard v. City of Jacksonville, 109 F. Supp. 2d
1360, 1365 (M.D. Fla. 2000).
IV.
Conclusion.
For these reasons, the plaintiffs ask that the Court
stay the City’s retaliatory Nuisance Action.
The plaintiffs
chose to bring their federal challenges in this forum; the
City should not be permitted to block this Court’s ability
to reach the merits.
Short of that relief, the plaintiffs
ask for a TRO enjoining the City from enforcing its adult
entertainment ordinances (and O.C.G.A. § 16-6-16) until, if
ever, they are validated by the federal courts.
This 9th day of March, 2012.
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Filed 03/09/12 Page 17 of 18
Respectfully submitted,
WIGGINS LAW GROUP
BY:/s/ Cary S. Wiggins
Cary S. Wiggins
Ga. Bar No. 757657
Suite 401
260 Peachtree Street, NW
Atlanta, Georgia 30303
Telephone: (404) 659-2880
Facsimile: (404) 659-3272
www.wigginslawgroup.com
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Filed 03/09/12 Page 18 of 18
CERTIFICATE OF SERVICE
I certify that on this date, I electronically filed
this PLAINTIFFS’ MOTION TO STAY THE CITY’S NUISANCE
ABATEMENT ACTION, OR, IN THE ALTERNATIVE, MOTION FOR
TEMPORARY INJUNCTIVE RELIEF with the Clerk of the Court
using the CM/ECF system which will automatically send e-mail
notification of such filing to the following attorneys of
record:
Scott D. Bergthold, Esq.
Law Office of Scott D. Bergthold
7446 Shallowford Rd., Suite 202
Chattanooga, TN 37421
Fred D. Bentley, Jr., Esq.
Monica L. Wingler, Esq.
Bentley, Bentley & Bentley
241 Washington Avenue
Marietta GA 30060
This 9th day of March, 2012.
By: /s/ Cary S. Wiggins
Cary S. Wiggins
Ga. Bar No. 757657
WIGGINS LAW GROUP
Suite 401
260 Peachtree Street, N.W.
Telephone: (404) 659-2880
Facsimile: (404) 659-3274
[email protected]
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ATLANTA DIVISION
GEORGIA, et al.,
Plaintiffs,
Defendant.
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1:09-CV-2747-RLV
PLAINTIFFS’ REPLY ON MOTION TO STAY
THE CITY’S NUISANCE ABATEMENT ACTION, OR,
IN THE ALTERNATIVE,
MOTION FOR TEMPORARY INJUNCTIVE RELIEF
The City is not particularly concerned whether this
Court will retain jurisdiction to conclude this case.
much is clear.
That
A few additional observations might clear up
the confusion created by the City’s brief [Doc. 203].
A.
The plaintiffs are not hogtied from
challenging new and uncontemplated
constitutional torts.
The plaintiffs did not waive all damages from all
enforcement into the future; rather they waived damages for
enforcement that “accrued prior to and including Wednesday,
September 30, 2009.”
[Doc. 173 at 1, No. 06-CV-1562-RLV.]
Conversely, “[i]n no way d[id] the plaintiffs waive any
compensatory or punitive damages that might accrue on or
after Wednesday, September 30, 2009, arising out of the
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City’s enforcement efforts, except that plaintiffs waive
damages based on enforcement, during the period that this
agreement is in effect, of those ordinance provisions
outlined in paragraph 4 above that the plaintiffs are
voluntarily agreeing to comply with during the pendency of
this consent agreement on enforcement.”
[Id. at 2-3.]
The plaintiffs thus waived damages arising out of
enforcement of the ordinances referenced in paragraph 4 of
the condition of dismissal.1
The City should have
acknowledged that this condition has one obvious if implicit
limitation: The City cannot commit constitutional torts
against the plaintiffs under the guise of enforcing these
ordinances and state laws.
The idea that the plaintiffs
agreed otherwise is not only insulting, it is a unilateral
and most unfortunate position for the government to take.
1
In the condition of dismissal filed in Flanigan’s
(1:06-cv-01562-RLV) [Doc. 173 at 2], the Clubs agreed to
comply with §§ 26-24(b)(1),(2),(4), and (8); 26-25; 26-27;
26-29(a),(b),(c), and (d) 26-29(a), (b), (e), and (d) and
that “Section 26-29(e)(3) shall be applicable to bookstores
only during this agreement.” [Doc. 173 at 2]. In its First
Amended Verified Complaint for Injunctive Relief [Doc. 2004], the City requested an interlocutory injunction and a
permanent injunction ordering Inserection, Olsafsky and Love
Shack to comply with § 26-29(e)(3) as well as §§ 2629(e)(2)(b) and (e)(2)(e). Although § 26-29(e)(3) was part
of the condition of dismissal, the other two code sections
were not.
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As explained below, sometimes the manner and purpose of law
enforcement can create a tort in itself.
B.
Why did the City investigate the plaintiffs?
For argument’s sake here, assume that the City is
correct that it began investigating the plaintiffs before
the summary judgment arguments in late November 2011.
We
know that Main Stage’s summary judgment argument in Maxim
Cabaret was calendared for November 28, 2011.
We know that
the City filed the Nuisance Action about two weeks later on
December 13, although it says that the suit was filed only
“[a]fter documenting repeated illegal conduct over several
weeks ....”
[Doc. 203 at 5 (citation omitted)(emphasis
added); see also id. at 6 (letter from City’s attorney to
Wiggins stating that “[t]he City’s investigation into your
clients’ habitual violations of the agreed-upon provisions
was initiated well before the November 2011 court
arguments.” (internal citation and quotation marks omitted,
emphsis added); id. at 8 (“the City’s enforcement follows
months of documented illegal conduct at Plaintiffs’
establishments.”)(emphasis added).]2
2
The City is coy about offering dates
Court knows, the City covertly investigated
during 2007 and 2008, but it did not reveal
during the initial discovery period in this
here. As the
the plaintiffs
these operations
case. Based on
-3-
21
The City probably believes that it weakens the
plaintiffs’ First Amendment retaliation claims if it can
show that it began investigating the plaintiffs before they
presented legal arguments on December 1 (and before Main
Stage did so on November 28).
But the City’s assertion, if
true, begs a larger question: Given Maxim Cabaret had been
pending since 2006 (and this case pending since 2009), why
the City’s relatively sudden interest in investigating the
plaintiffs and Main Stage in November 2011 (if that is in
fact the “well before the November 2011 court arguments”
period)?
If the City’s police were finding “crime,” they
were not arresting people or issuing citations.
Why not?
Nor were the police (or the City) moving to suspend or
revoke the adult establishment work permits of any alleged
violating employees.
Why not?
What did the City hope to
gain by secretly investigating these parties for “over
several weeks”?
If the City is to be believed, it was investigating
Main Stage and the plaintiffs in the days (possibly weeks)
leading up to the summary judgment hearing in Maxim Cabaret.
the language used by the City in its response brief
(emphasized above), the City could simply be referring to
investigations which are not at all close in time to filing
the Nuisance Action.
-4-
22
Important here, Main Stage moved for summary judgment; thus
the City was also opposing a summary judgment motion, not
just prosecuting one.
Under Georgia law, a party opposing a
motion for summary judgment may serve an opposing affidavit
“prior to the day of hearing.”
O.C.G.A. § 9-11-56(c); see
Kirkland v. Kirkland, 285 Ga. App. 238, 240 (2007)(holding
that an affidavit opposing a motion for summary judgment
that was filed one day before the scheduled hearing on the
motion was timely).
The Geogia Court of Appeals observed
recently that the statute “requires the trial court to
consider opposing affidavits filed at any time prior to the
hearing.”
Woods v. Hall, No. A11A2349,
Ga. App.
, 2012
Ga. App. LEXIS 321, at *7 & n.11 (Mar. 22, 2012)(quoting
Bell v. Norfolk S. R.R. Co., 222 Ga. App. 788, 789 (1996)).
Perhaps the City hoped to supplement the Maxim Cabaret
summary judgment record with evidence of crime?
The City
has conspicuously declined to explain its purpose.
Whatever
the motive for these investigations and whenever the dates
in which they took place, the plaintiffs are entitled to
discover both the purpose and scope of the City’s
investigations.
Questions need answering: Was the City’s private outof-state counsel in this case (Mr. Bergthold) privy to these
-5-
23
undercover criminal investigations?
and how?
If so, when, why, where
(Presumably Bergthold knows what the undercover
investigations revealed; he is, after all, prosecuting a
quasi-criminal action on the City’s behalf based on that
evidence.)
Why were the results of this undercover
investigation not mentioned when adopting the City’s
February 2012 adult entertainment ordinances?
Why has the
City failed to supplement discovery to produce all evidence
relating to these investigations?
The City says that all these laws are unrelated to
restricting protected speech or expression.
19.]
That is a convenient explanation.
[Doc. 203 at
If history is any
guide, though, it is not a reliable explanation.
Consider the City’s legislative findings in 2005.
Under no scenario did the City deliberate adopting a
preamble (i.e., legislative findings) that would undercut
its ability to adopt content-based laws.
In the multiple
versions of the pre-drafted, adult-entertainment license
laws provided to the City Council on December 27, 2005,
every single preamble recited that the Council had heard
testimony from Holland, Clarke, and Fries (together “the
-6-
24
City’s experts”).3
And every last one of those preambles
found the City’s Experts present and credible, and “adult
entertainment industry” studies “not credible.”
Of course
there is no evidence that the Mayor and Council reviewed the
studies.
The fallacy was is that the City’s Experts did not
share their findings or conclusions with anyone before they
presented them at the December 27 hearing.4
C.
The Court can enjoin the City’s effort.
At least now the City acknowledges the potential
jurisdictional repercussions of pursuing its Nuisance
Action: Res judicata.
When the plaintiffs first argued that
3
See 2 [Doc. 10 at 3-4]; 3 [Doc. 10-2 at 3-4]; 4 [Doc.
10-3 at 3-4]; 5 [Doc. 10-4 at 3-4]; 6 [Doc. 10-5 at 3-4]; T2
[Doc. 10-6 at 3-4]; T3 [Doc. 10-7 at 3-4]; T4 [Doc. 10-8 at
3-4]; T5 [Doc. 10-9 at 3-4]; T6 [Doc. 10-10 at 3-4]; T2(b)
[Doc. 10-11 at 3-4]; 2(b) [Doc. 10-12 at 3-4]. At this
December 27 hearing, the City’s lead attorney in this
litigation, Fred Bentley, explained the differences among
the versions. See Doc. 10-15 at 46 (six options); id. at
49-52 (reviews options).
4
William Riley hired the City’s Experts [Doc. 161 at
46 (hires Fries), at 48 (hires Holland), and at 49 (hires
Clarke)]. Holland and Clark testified to the Mayor and
Council without first going to Riley (or to anyone). [See
Doc. 182 at 17 (Riley Dep. at 65-66); Doc. 182 at 22-23
(Riley Dep. at 83-85, 89-95); see also Doc. 173 at 4
(Holland Dep. at 9-12); Doc. 170 at 6 (Clarke Dep. at 1820); Doc. 171 at 11 (Fries Dep. at 38).] The City adopted
this legislative predicate for the April 2009 ordinances.
See, e.g., Doc. 4-2 at 2-4 (relying on “Undercover agents
and citizens” when adopting Ordinance 2009-04-25).
-7-
25
the Nuisance Action could unravel all that this Court and
the parties have done over six years, the City thought the
concern “puzzling.”
Not anymore.
Today the City calls the
res judicata concern one “wholly of the Plaintiffs’ own
making.”
[Doc. 203 at 1; see also id. at 12 (“any res
judicata problem occasioned by Plaintiffs’ violations of the
regulations -- and the parties’ agreement -- is entirely of
their own making, and Younger does not permit an injunction
simply to prevent Plaintiffs from hoisting themselves with
their own petard.”; id. at 13-14 (similar).]
The City argues hard for Younger abstention.
203 at 10-14.]
[See Doc.
Although the City is correct that Younger’s
abstention principles apply to quasi-criminal actions [see
id. at 11], they do not require abstention here.
For one
thing, the plaintiffs have made a prima facie case that the
City’s Nuisance Action is a First Amendment retaliation,
i.e., the quasi-criminal state proceeding was brought in
bad-faith.5
For another thing, this case was filed years
5
Nowhere in its “Factual Background” has the City
cited to a single piece of evidence linking the plaintiffs
to a violation of the subject adult entertainment ordinances
or state laws. [See Doc. 203 at 2-7.] (That says nothing
about the individual managers and owners that the City
elected to sue for damages and costs.) Instead the City
cites exclusively to its notice-plead complaint that was
“verified” by Police Chief Terry Sult, which is curious
-8-
26
before the Nuisance Action.
This case is well beyond the
proverbial embryonic stage.
The City conjures up notions of
federalism, but then forgets that sovereignty is a two-way
street.
Judge Birch has explained why a stance like the
City’s is a dangerous one:
Our decision that Younger abstention is
unwarranted in the present case is colored by the
cautious approach we have chosen to take in
interpreting the scope of Hicks, given its
possible effect on the federal jurisdictional
scheme. On the one hand, the requirement
enunciated in Hicks -- a federal court must
abstain if a state action is filed before
proceedings of substance on the merits have
occurred -- ensures that the Younger doctrine
neither is trivialized nor made formalistic by
permitting a party to obtain federal relief merely
by beating the state to the courthouse. Hicks, 422
U.S. at 350, 95 S. Ct. at 2292.
On the other hand, if we define too narrowly what
constitutes proceedings of substance on the
merits, we risk ‘vesting the district attorney -not the aggrieved citizen -- with the power to
choose the forum, and, indeed, the nature of the
proceeding in which the federal constitutional
claim [will] be litigated.’ Owen M. Fiss,
Dombrowski, 86 Yale L.J. 1103, 1135 (1977); see
also Erwin Chemerinsky, Federal Jurisdiction §
13.3, at 788 (3d ed. 1999). Indeed, we would risk
creating an expansive ‘reverse removal power’ in
that state prosecutors, in effect, would have
broad discretion to remove federal civil rights
actions to state criminal court on a routine
basis, even after the plaintiff had invested
given that Chief Sult knew nothing about the plaintiffs an
alleged crimes when he was deposed in August 2011. [See
Doc. 185 at 10-15.]
-9-
27
Filed 04/09/12 Page 10 of 18
precious time and resources to bringing the
federal litigation. Fiss, supra, at 1136.
Consequently, while Hicks teaches us to refrain
from focusing disproportionately on the respective
commencement dates of the state and federal
actions in determining whether Younger abstention
applies, we must, at the same time, remain
circumspect about interpreting Hicks in a manner
that gives state officials expansive leeway to
override a plaintiff’s choice of whether to
litigate in a federal or state forum. Our decision
here is an attempt to strike this balance.
For Your Eyes Alone, Inc v. City of Columbus, 281 F.3d 1209,
1219 (11th Cir. 2002).
Though the City no longer denies that the Nuisance
Action has the potential to create a res judicata defense
for the City, it says the plaintiffs created that problem
when they chose to litigate their federal claims in federal
court.
That is not the law.
And by arguing this position
the City only highlights its bad faith.
See Sheridan v.
Garrison, 415 F.2d 699, 707 (5th Cir. 1969)(“When, however,
the allegation upon which an injunction suit is based is
that the state proceeding itself creates a chilling effect
on speech because the state’s legal machinery is being used
in bad faith, it is precisely this assumption that is
challenged, and to rely upon comity is to beg the question.
The justification for comity disappears if the allegation is
proved true, and allowing the state to continue will defeat
-10-
28
Filed 04/09/12 Page 11 of 18
policies that, in such cases, are more important than
comity. Furthermore, this order of priorities holds true
even in a criminal prosecution that has already
begun.”)(emphasis in original).
This Court knows full well that it can stay the
Nuisance Action to protect all that it has done in this §
1983 suit.
The All Writs Act -- and the exceptions to the
Anti-Injunction Act -- are not there solely for high-stakes,
class-action litigation; that is not how the statutes read,
anyway.
See Winkler v. Eli Lilly & Co., 101 F.3d 1196, 1202
(7th Cir. 1996)(“We agree that the ‘necessary in aid of
jurisdiction’ exception should be construed ‘to empower the
federal court to enjoin a concurrent state proceeding that
might render the exercise of the federal court’s
jurisdiction nugatory.’ Martin H. Redish, The
Anti-Injunction Statute Reconsidered, 44 U. Chi. L. Rev.
717, 754 (1977).”); see Bayshore Ford Trucks Sales, Inc. v.
Ford Motor Co. (In re Ford Motor Co.), 471 F.3d 1233, 1252
n.36 (11th Cir. 2006)(citing this view approvingly).
While
the City’s eleventh-hour attempt to end federal jurisdiction
is disappointing, it is not a stunt that the Court is
powerless to stop.
D.
The Nuisance Action is not narrowly tailored
-11-
29
Filed 04/09/12 Page 12 of 18
to avoid chilling free speech.
The Nuisance Action was calculated to send a firm
message.
The City knows this best because it chose the
program from a host of alternatives.
What it offers the
Court, however, is a string citation confirming that, yes,
Georgia’s courts have at times granted injunctions when, for
instance, issuing criminal citations would not be as
practical.
[See Doc. 203 at 19-20.]
None of those cases
concerned strip clubs or adult bookstores.
The City has
pointed to no case where a court issued an injunction
against a group of unrelated adult businesses -- who all
happened to be violating the same law at the same time.
Under Georgia’s Constitution, the City was (and is)
required to address whatever harms it believes it has by
using the least restrictive means.
See Great Am. Dream v.
DeKalb County, No. S11A1375, 2012 Ga. LEXIS 334, at *8,
Ga.
, (Ga. Mar. 23, 2012)(“there is precedent of this
Court to the effect that content-neutral laws that directly
regulate the ‘time, place, and manner’ of protected
expression must, under the Georgia Constitution, be the
‘least restrictive means’ of furthering the government’s
significant interests, rather than being held to the test
set forth in [Paramount Pictures Corp. v. Busbee, 250 Ga.
-12-
30
Filed 04/09/12 Page 13 of 18
252 (1982)]”)(citations omitted); Grady v. Unified Gov’t of
Athens-Clarke County, 289 Ga. 726, 728 (2011)(“Were this a
First Amendment case, we would consider whether the County
ordinance is ‘narrowly tailored’ to serve a significant
government interest and leaves open ample alternatives for
communication. However, Grady invokes only Georgia’s free
speech clause, which we have previously held requires not
that such a content-neutral time, place, and manner
regulation be narrowly tailored but instead that the
regulation be the ‘least restrictive means’ of furthering
the government’s significant interests, while still leaving
open ample alternatives to communicate.”)(internal citations
omitted).
The City is off the charts.
The plaintiffs agreed to
run their employees (and independent contractors) through
the City’s adult establishment work permit process.
26-25.
See §
As the City noted in earlier briefs [see Doc. 200-1
at 4, ¶ 25], the clubs have run hundreds of workers through
this system.
In its Nuisance Action, the City claims that
some of these workers have violated the adult ordinances.
The question becomes what to do?
Certainly a much more tailored response would be to
notice the alleged violator(s) to show cause why his or her
-13-
31
Filed 04/09/12 Page 14 of 18
work permit should not be suspended or revoked.
Why impose
a work permit requirement on performers and employees if the
City is simply going to sue management and the corporations
in state court at the first sign of trouble?
If a nightclub
like Mardi Gras, which employs hundreds of workers, has a
few bad apples (like any large company), is not a more
narrowly tailored response to the City’s perceived problem
to fine, suspend or revoke some work permits?
citation to an alleged violator?
Or to issue a
Either of those actions,
or even those actions in combination, is a more tailored
response to the perceived problem vaguely recited by Chief
Sult.
When the City says that the plaintiffs do not get to
choose the “enforcement procedure,” it is admittedly partly
correct.
The plaintiffs do, however, get to say that the
City’s choice of enforcement is not narrowly tailored under
the Georgia or federal Constitutions, and thus the tactic is
unconstitutional.6
6
Cf. Arcara v. Cloud Books, Inc., 478 U.S. 697, 708
(1986)(O’Connor, JJ. concurring with Stevens, J.)(“I agree
that the Court of Appeals erred in applying a First
Amendment standard of review where, as here, the government
is regulating neither speech nor an incidental,
nonexpressive effect of speech. Any other conclusion would
lead to the absurd result that any government action that
had some conceivable speech-inhibiting consequences, such
-14-
32
E.
Filed 04/09/12 Page 15 of 18
The § 16-6-16 allegations are baseless.
Finally, the City argues that the plaintiffs “gloss
over” Count 2 of the Nuisance Action, which alleges repeated
violations of O.C.G.A. § 16-6-16 by the plaintiffs -- only
the City does not say which plaintiffs.
22.]
[See Doc. 203 at
The City suggests that it can bypass criminal
procedure. That is, the City wants to adjudicate all the
plaintiffs (and their management) guilty of allowing others
to violate § 16-6-16, but without citing a single person or
patron.
This is a state law crime.
See O.C.G.A. § 16-2-1
(defining “crime”).
Only a jury empaneled by a state trial court can
determine whether a defendant has committed a state law
crime.
See, e.g., Minor v. State, 232 Ga. App. 246
as the arrest of a newscaster for a traffic violation, would
require analysis under the First Amendment. If, however, a
city were to use a nuisance statute as a pretext for closing
down a bookstore because it sold indecent books or because
of the perceived secondary effects of having a purveyor of
such books in the neighborhood, the case would clearly
implicate First Amendment concerns and require analysis
under the appropriate First Amendment standard of review.
Because there is no suggestion in the record or opinion
below of such pretextual use of the New York nuisance
provision in this case, I concur in the Court’s opinion and
judgment.”) Because Justice Stevens joined this concurrence
and joined Justice O’Connor in the majority’s 6-3 decision,
one might assume the case would have gone the other way if
the record looked like Sandy Springs’s record.
-15-
33
Filed 04/09/12 Page 16 of 18
(1998)(question of whether defendant’s actions were lewd
within meaning of public indecency statute is for jury).
Under the City’s proposal, no one need be convicted of
violating state law.
See O.C.G.A. § 16-1-5 (“Every person
is presumed innocent until proved guilty. No person shall be
convicted of a crime unless each element of such crime is
proved beyond a reasonable doubt.”)
Instead the City would
rather a state court judge to substitute its judgment for
that of the jury.
But see Pabey v. State, 262 Ga. App. 272,
277 (2003)(“Here, the state cannot simply rest upon the same
allegations it asserted to establish probable cause for a
search warrant. Rather, the state must present competent
evidence to establish a jury issue regarding its right to
forfeiture.”).
IV.
Conclusion.
The City says that the “threatened damage” to the
plaintiffs “is zero.”
be more wrong.
[Doc. 203 at 20.]
The City could not
For all these reasons, the plaintiffs kindly
ask that the Court stay the City’s retaliatory Nuisance
Action.
[Remainder of page left blank]
-16-
34
Filed 04/09/12 Page 17 of 18
This 9th day of April, 2012.
WIGGINS LAW GROUP
Cary S. Wiggins
Ga. Bar No. 757657
Suite 401
Telephone: (404) 659-2880
Facsimile: (404) 659-3272
-17-
35
Filed 04/09/12 Page 18 of 18
this PLAINTIFFS’ REPLY ON MOTION TO STAY THE CITY’S NUISANCE
ABATEMENT ACTION, OR, IN THE ALTERNATIVE, MOTION FOR
TEMPORARY INJUNCTIVE RELIEF with the Clerk of the Court
record:
Marietta GA 30060
Cary S. Wiggins
Ga. Bar No. 757657
WIGGINS LAW GROUP
Suite 401
Telephone: (404) 659-2880
Facsimile: (404) 659-3274
[email protected]
-18-
36
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION·
APR 20 2011
FLANIGAN'S ENTERPRISES, INC.
OF GEORGIA, et al.,
CIVIL ACTION
Plaintiffs,
NO. 1:09-CV-2747-RLV
v.
CITY OF SANDY SPRINGS,
GEORGIA,
Defendant.
o
R D E R
This matter comes before the court on the plaintiffs' motion
to stay the defendant's nuisance action,
or in the alternative,
motion for temporary injunctive relief [Doc. No. 200].
In their motion, the plaintiffs argue that immediately after
the plaintiffs filed their brief in opposition to the defendant's
motion for summary judgment in this case that the defendant sued
the plaintiffs in an enforcement action in state court, alleging
that the plaintiffs' businesses are in violation of certain adult
entertainment ordinances and of O.C.G.A.
§
16-6-16 ("masturbation
for hire"). According to the plaintiffs, the defendant filed its
state court action in order to prevent this court from reviewing
the defendant's motion for summary judgment.
In its response, the
defendant argues that the plaintiffs agreed to comply with certain
regulations
and
that
the
plaintiffs
waived
any
damages
from
37
enforcement of those regulations.
plaintiffs have
According to the defendant, the
repeatedly and blatantly violated a
number of
regulations that they promised to comply with as a condition to
In particular, the defendant argues that it
fiiing this matter.
filed
its state court enforcement action to
stop ongoing paid
sexual contact in violation of regulations that the plaintiffs
agreed to comply with as a condition to filing this suit.
Lastly,
the defendant argues that the plaintiffs' stay motion, which should
be construed as a motion for a preliminary injunction and to enjoin
the defendant's state court proceeding, should be denied because
the plaintiffs cannot satisfy any of the prerequisites necessary
for the issuance of a preliminary injunction.
As a preliminary matter,
the court notes that because the
defendant has been served and because the defendant has responded
to
the
plaintiffs
I
motion
that
the plaintiffs'
request
for
a
emergency or in camera temporary restraining order is converted
into a
motion for
a
preliminary injunction.
Thus
I
while
the
plaintiffs repeatedly use the term "stay" in their pleadings, the
court agrees with the defendant and concludes that the plaintiffs
are actually seeking a preliminary injunction to halt the state
court proceeding.
Therefore, this court reviewed the plaintiffs'
2
38
motion as a motion for a preliminary injunction and not as a motion
to stay.
In its
response,
the defendant
argues
that
an injunction
against the state court enforcement action is barred by the Anti
Injunction Act, i.e., 28 U.S.C.
without merit.
doctrines
However, this argument is
While the defendant argues that various abstention
prevent
proceeding,
2283.
§
this
court
from
enjoining
the
state
court
the defendant's argument that this court is without
authority to enjoin the state court action based on some variety of
abstention doctrine is frivolous.
note,
claims
under
42
U.S.C.
As the plaintiffs correctly
1982
§
clearly
fall
within
the
"expressly authorized" exception to the Anti-Injunction Act.
Moreover,
the
defendant's
reliance
on various
abstention
doctrines on pages 11 through 14 of its response miss the mark.
the plaintiffs' version of the events, the defendant's
In
eleventh~
hour state court enforcement action contains fabricated allegations
and was filed as part of the defendant's litigation strategy to
frustrate this court's review of the plaintiffs'
constitutional
challenges to the defendant's adult entertainment ordinances and
regulations.
allegations,
Given the sequence of events and the plaintiffs'
the court concludes that
this
is not
the typical
abstention fact pattern wherein there is an ongoiqg state court
3
39
proceeding and then a
federal
Instead,
action is filed.
this
matter has been pending in some form or fashion for many years
before
the
filing
of
While
proceeding.
the
the
defendant's
court
makes
state
no
court
findings
enforcement
of
fact
or
conclusions of law with regard to the defendant's motivations for
filing
its
state
law
enforcement
action,
the
timing
defendant's enforcement proceeding is more than curious.
of
the
Because
no valid factual or legal reason exists to do so, this court will
not abstain from hearing this matter because the defendant opted to
file a state court enforcement proceeding.
Furthermore, the court rejects the defendant's argument that
an
injunction
jurisdiction."
exercising
its
is
not
While
right
"necessary
the
to
in
defendant
enforce
aid
of
argues
local
[this
that
it
regulations
court's]
is
only
that
the
plaintiffs are violating and that this court's proceeding will not
be impacted by the parallel state court proceedings,
the court
concludes that the actions of the pending state court enforcement
action may divest this court of its ability to resolve the complex
legal issues in this case.
For the defendant to argue otherwise is
simply disingenuous.
While the defendant argues that the plaintiffs' preliminary
injunction should be denied on the pleadings,
the court cannot
4
40
reach
the
merits
of
evidentiary hearing.
the
preliminary
injunction
without
an
In order to resolve the plaintiffs' motion
for a preliminary injunction, the court will schedule a hearing via
a separate order.
For the above reasons,
the court CONVERTS the plaintiffs'
motion for a temporary injunction into a motion for a preliminary
injunction.
To the extent that the plaintiffs sought a stay of the
state court proceedings,
the court construed this request as a
motion for a preliminary injunction.
merits
of
the
plaintiffs'
Before the court reaches the
converted motion
for
a
preliminary
injunction, the court needs to schedule an evidentiary hearing via
a separate order.
In order to inform the state court of this court's actions,
the parties are directed to submit a copy of this order to the
state court.
If the state court judge issues any decisions in the
pending state court proceeding, the court DIRECTS the parties to
inform this court immediately.
its matter voluntarily,
Moreover, if the state court stays
the court DIRECTS the parties to inform
this court of that development as well.
SO ORDERED, thi s
Jt)~ day of April, 2012.
kaUd(. L~~~?,
BERT L. VININ~R.
Senior United States District Judge
5
41
ATLANTA DIVISION
GEORGIA, et al.,
Plaintiffs,
Defendant.
*
*
*
*
*
*
*
*
*
*
1:09-CV-2747-RLV
PLAINTIFFS’ MOTION FOR LEAVE
TO SUPPLEMENT COMPLAINT AND GATHER DISCOVERY
I.
Introduction.
After the plaintiffs filed their (initial) response
brief on summary judgment [see Doc. 158], two things
happened.
First, the City sued them in state court.1
Second, the City amended (and repealed) some of its adult
entertainment and alcoholic beverage ordinances.2
The
plaintiffs are entitled to learn the “who, what, when,
where, why and how” underlying the Nuisance Action and the
February 2012 ordinances.
The plaintiffs wish (a) to
supplement their complaint to add claims under the First and
Fourteenth Amendments and Georgia’s Constitution and laws,
1
See City of Sandy Springs v. 6420 Roswell Rd., Inc.,
et al., No. 2011-CV-209162 (Fulton County Superior Court,
filed Dec. 13, 2011)(“the Nuisance Action”).
2
See Docs. 191-1, 191-3 & 191-5 (together “the
February 2012 ordinances”).
42
and (b) to gather discovery relating to (i) the February
2012 ordinances, and (ii) the Nuisance Action.
II.
Argument.
A.
The Rule.
Rule 15(d) of the Federal Rules of Civil Procedure
states that “[u]pon motion of a party the court may, upon
reasonable notice and upon such terms as are just, permit
the party to serve a supplemental pleading setting forth
transactions or occurrences or events which have happened
since the date of the pleading sought to be supplemented.”
Fed. R. Civ. P. 15(d).
As the Eleventh Circuit has
explained, “[a] supplemental pleading is an appropriate
vehicle by which to set forth new facts in order to update
the earlier pleading, or change the amount or nature of the
relief requested in the original pleading.”
Lussier v.
Dugger, 904 F.2d 661, 670 (11th Cir. 1990)(quotation marks
and citation omitted).
B.
The Request to Supplement.
Recently the City sued the plaintiffs in state court.
Then, before replying on summary judgment in this Court, the
City adopted new ordinances regulating adult entertainment.
These events create new claims against the City.
Because
the evidence needed to shore up these claims will likely not
-2-
43
require experts, the plaintiffs believe that with some
limited e- and written-discovery and depositions, they can
make their claims.
This case is the place to raise them.
1.
Rule 15’s elements are met.3
a.
Any delay is minor.
By “delay,” the plaintiffs are referring to an
unjustified delay in proceedings; there is usually some
delay whenever pleadings are amended.
See, e.g., Loggerhead
Turtle v. County Council of Volusia County, Fla., 148 F.3d
1231, 1257 (11th Cir. 1998)(“Any amendment to an original
pleading necessarily involves some additional expense to the
opposing party.”); Edwards v. City of Goldsboro, 178 F.3d
231 (4th Cir. 1999)(“Delay alone is an insufficient reason
to deny leave to amend.... Rather the delay must be
accompanied by prejudice, bad faith, or futility.”).
The
City should have anticipated there would be delay when it
(again) amended the laws that were the subject of this
litigation.
b.
Any prejudice is not unfair.
The City cannot say that it will be prejudiced by
3
When evaluating Rule 15(d) motions, courts generally
weigh the same factors of fairness as when considering
motions to amend pleadings under Rule 15(a). See, e.g.,
Glatt v. Chicago Park Dist., 87 F.3d 190 (7th Cir. 1996).
-3-
44
having to respond to the supplemental pleading (i.e., the
second amended complaint).
If anyone should be complaining
about expanded proceedings, it is the plaintiffs: the City
moved for summary judgment on the April 2009 ordinances, yet
it amended those ordinances after reviewing the plaintiffs’
response to that motion.
Prejudice does not exist simply
because the City will have to defend against claims based on
intentional acts that it took.
See, e.g., Popp Telcom, Inc.
v. American Sharecom, Inc., 210 F.3d 928, 943 (8th Cir.
2000)(“The inclusion of a claim based on facts already known
or available to both sides does not prejudice the non-moving
party.”); see also Laurie, 256 F.3d at 1274 (“There must be
a substantial reason to deny a motion to amend.”).
c.
The claims are not futile.
In this litigation, the City is represented by the outof-state law firm4 that it consulted when drafting the
February 2012 ordinances.
That firm also represents the
City in the Nuisance Action.
In response to this motion,
therefore, the City is not likely to agree that the proposed
claims are meritorious.
the claims futile.
4
But in no way should it argue that
The plaintiffs can show:
Law Office of Scott D. Bergthold (“Bergthold”).
-4-
45
•
that the February 2012 ordinances (a) were adopted
without a proper predicate for believing that they
will serve a substantial governmental interest,
(b) were adopted for reasons relating directly to
suppressing protected speech and expression, (c)
are not narrowly tailored to achieve a legitimate
governmental interest, and (d) impose an
impermissible restraint [see Doc. 201 at 26-27;
Doc. 204 at 3-7];
•
that the February 2012 ordinances arbitrarily
terminate a lawful prior non-conforming use in
offering adult entertainment in violation of equal
protection and due process guarantees [see Doc.
201 at 5-20];
•
that the February 2012 ordinances, to the extent
that they adversely and uniquely affect the
plaintiffs (who are a small and easilyidentifiable group of businesses), adjudicated the
rights of plaintiffs without meaningful notice or
a meaningful opportunity to be heard [see Doc. 201
at 17-19];
•
that by filing the Nuisance Action against the
plaintiffs (and their owners and management), the
-5-
46
City has retaliated in a way that would chill a
person of ordinary firmness from making arguments
in court, and which is causing damages [see Doc.
200 at 1-4, 13]; and
•
the Nuisance Action itself is not a narrowly
tailored proceeding under the Georgia Constitution
because it seeks both costs and damages against
the plaintiffs (and their employees and owners)
for unspecified and unrelated alleged incidents
[see Doc. 204 at 11-14].
2.
The new facts support old claims.
Apart from these claims, the supplemental complaint
will allege recent facts supporting existing claims for (i)
an unlawful delegation of governmental authority, and (ii)
an improper predominant concern behind the City’s adultestablishment ordinances.
From the limited evidence
gathered by Main Stage in the Nuisance Action to date, it
appears that Bergthold hired (or directed) private detective
agencies to inspect the plaintiffs’ businesses over several
days between September 2011 and January 2012 (“the Bergthold
Investigation”).
See Ex. A (City’s response to
interrogatories served by Main Stage in the Nuisance
Action); Ex. B (City’s response to document requests served
-6-
47
by Main Stage in the Nuisance Action); Ex. C (excerpts of
“1stRFP7, SS PI Reports.pdf,” which is the City’s proffered
basis for prosecuting the Nuisance Action).
Immediately apparent is that the Bergthold
Investigation was conducted surreptitiously and without
using the Court’s discovery channels.
34(a)(2).
See Fed. R. Civ. P.
Normally, to obtain entry onto “property
possessed or controlled by the responding party, so that the
requesting party may inspect ... the property or any
designated object or operation on it,” a party must serve a
formal request under Rule 34(a)(2).
See, e.g., Baugus v.
CSX Transp., Inc., 223 F.R.D. 469, 471 (N.D. Ohio 2004)(Rule
34(a)(2) is the proper procedure to request video recordings
and that a plaintiff cannot bypass the rule’s procedural
requirements).
A request for inspection under Rule 34(a)(2)
must describe with reasonable particularity the items sought
to be inspected and must specify a reasonable time, place,
and manner for the inspection.
Fed. R. Civ. P. 34(b)(1)(A).
Because the plaintiffs were in litigation with Bergthold’s
client (i.e., the City) before and during the Bergthold
Investigation, any inspection of the plaintiffs’ operations
to be used in defending this litigation should have been
presented through a Rule 34 request.
-7-
48
The City will probably respond that this position is
unfounded because (1) if the City must announce when it is
investigating the plaintiffs, it will never catch dancers in
the act, as it were, (2) the plaintiffs are open to the
public, so there is really no need to invoke Rule 34, and
(3) the undercover inspections of the plaintiffs’ operations
were not performed or intended for use in this litigation.
None of those excuses will hold water.
First, Rule 34(a)(2) is not concerned with whether a
civil litigant can obtain the element of surprise.
its concern is quite the contrary.
In fact,
See, e.g., United States
v. Erie County, No. 09-CV-849S, 2010 U.S. Dist. LEXIS 25646,
at *7 (W.D.N.Y. Mar. 17, 2010)(allowing Rule 34 inspection
by Justice Department to interview county employees as
necessary during the course of the site inspection on the
issues of suicide prevention and mental health processes and
procedures and noting, “there is no danger of prejudice or
element of surprise to Defendants because their attorneys
are permitted to accompany the consultants and advise County
employees as they see fit.”).5
5
Litigants of course can and do use undercover
investigators to support civil claims and defenses. Members
the American Society of Composers, Authors and Publishers
(ASCAP), for example, routinely use investigators to gather
-8-
49
Second, Rule 34(a)(2) is not rendered inapplicable
simply because the party’s operation is open to the public.
If the parties are in litigation, the Rule applies.
Period.
So, are Bergthold’s private detectives entitled to seek out
and then speak with the plaintiffs’ management -- as they
did here -- while this case is pending?
Of course not.
See, e.g., Midwest Motor Sports v. Arctic Cat Sales, Inc.,
347 F.3d 693, 698 (8th Cir. 2003)(noting that the
defendant’s attorneys are “ethically responsible” for using
private investigator to communicate with the plaintiff’s
management while case was in litigation); id. (“Where, as
here, attorneys elicit specific admissions from an
opponent’s low-level employees that the attorneys know would
be advised against by the employer’s counsel, we have no
doubt that the ethical considerations in Rule 4.2 apply.”).
Finally, the City might say that its covert
surveillance of dancers and managers, as well as its
evidence for copyright infringement actions. See, e.g.,
Milk Money Music v. Oakland Park Entm’t Corp., No.
09-CV-61416-MORENO/TORRES, 2009 U.S. Dist. LEXIS 121661
(S.D. Fla. Dec. 10, 2009); WB Music Corp. v. S. Beach Rest.
Inc., No. CV-09-1528-PHX-LOA, 2009 U.S. Dist. LEXIS 119158
(D. Ariz. Dec. 1, 2009); New World Music Co. v. Tampa Bay
Downs, Inc., No. 8:07-cv-398-T-33-TBM, 2009 U.S. Dist. LEXIS
1221 (M.D. Fla. Jan. 6, 2009) Putting aside whether those
investigations are directed by lawyers, they are typically
performed before any litigation.
-9-
50
Filed 04/17/12 Page 10 of 14
questions put to them, were not conducted for this case;
rather, they were conducted to determine whether to bring
the Nuisance Action.
position.
A few problems would exist with this
For one, as discovery should show, Bergthold was
hired to defend this case, not to investigate grounds for
bringing the Nuisance Action.
For another, and as argued previously, the Nuisance
Action was not an appropriate action to bring against the
plaintiffs.
Compare Fenimore v. State, 263 Ga. 760 (1994)
(reversing injunction issued under the nuisance statute,
O.C.G.A. § 41-3-1 et seq., noting that the statute “has no
application in the context of this case,” which concerned a
venue’s challenge to a nude dancing ordinance) with Doc. 204
at 8, ¶ 34 (citing O.C.G.A. § 41-3-1 as basis for the
Nuisance Action).
For yet another, the Bergthold Investigation presumably
was not, and could not be, a criminal investigation.
To pay
Bergthold an hourly fee to investigate and then prosecute a
quasi-criminal investigation creates a mountain of due
process problems.
See, e.g., State v. Culbreath, 30 S.W.3d
309, 315-16 (Tenn. 2000)(“In July of 1996, a civil nuisance
suit seeking injunctive relief was filed by Parrish and the
District Attorney General’s office against the defendants
-10-
51
Filed 04/17/12 Page 11 of 14
based on the evidence from Parrish’s investigation. Although
General Pierotti purportedly appointed Parrish as a special
prosecutor on the same day the suit was filed, there was
(and is) no constitutional or statutory authority for such
an appointment to be made. Moreover, although Parrish was
later appointed as additional counsel by the Governor, there
was (and is) no legal authority allowing Parrish to be
compensated on an hourly basis by a private, special
interest group. See Tenn. Code Ann. § 8-6-106 (1993)
(counsel may be compensated from the state treasury).
Indeed, the State now concedes that Parrish’s appointment
and participation was ‘problematic’ inasmuch as there was no
statutory authority for it in this manner. ¶ Accordingly, we
agree with the lower courts that Parrish had an actual
conflict of interest under the circumstances of this case.
He was privately compensated by a special interest group and
thus owed a duty of loyalty to that group; at the same time,
he was serving in the role of public prosecutor and owed the
duty of loyalty attendant to that office. Moreover, because
Parrish was compensated on an hourly basis, the reality is
that he acquired a direct financial interest in the duration
and scope of the ongoing prosecution. In short, the dual
role was such that Parrish could not exercise his
-11-
52
Filed 04/17/12 Page 12 of 14
independent professional judgment free of ‘compromising
influences and loyalties.’ See Tenn. R. Sup. Ct. 8, EC
5-1.”).
This is probably why the Bergthold Investigation
(apparently) has been conducted entirely by private actors.
But may the City use the testimony of private citizens -testimony solicited and purchased by Bergthold -- to supply
the sole grounds for the Nuisance Action?
3-7].
Of course not.
[See Doc. 204 at
Yet it appears that the City is
trying to do just that, effectively farming the Nuisance
Action (i.e., quasi-criminal proceeding) to a private law
firm.
That is simply too much power to delegate to that
firm.
See People ex rel. Clancy v. Superior Court, 705 P.2d
347, 39 Cal. 3d 740 (1985).6
If leave is granted, the
plaintiffs will show that the City has violated their rights
and state laws.
C.
The Request to Gather Evidence.
The plaintiffs should be permitted to conduct some
discovery to learn how and why the February 2012 ordinances
were conceived, drafted and adopted.
What basis justifies
6
Even if the City (through Bergthold) had thought to
request inspections under Rule 34(a)(2), those discovery
requests should have been denied because the discovery
period is (and was) closed.
-12-
53
Filed 04/17/12 Page 13 of 14
“legislation” to grandfather future adult establishments but
not the plaintiffs?
The plaintiffs should also be permitted
to explore the facts surrounding the Nuisance Action.
Has
the City handed the reins to that retaliatory proceeding to
Bergthold?
The plaintiffs are entitled to gather evidence
to show that the Nuisance Action is a retaliatory and
unlawful delegation, and that some of the February 2012
ordinances are invalid.
III. Conclusion.
For all these reasons, the plaintiffs ask for
permission to file and serve a second amended complaint.
The supplemental facts and claims in the proposed complaint
are referenced above.
See U.S. ex rel. Atkins v. McInteer.
470 F.3d 1350, 1362 (11th Cir. 2006)(requiring movant to
submit the proposed amendment “or set forth substance
thereof”).
WIGGINS LAW GROUP
Cary S. Wiggins
Ga. Bar No. 757657
Suite 401
Telephone: (404) 659-2880
Facsimile: (404) 659-3272
-1354
Filed 04/17/12 Page 14 of 14
this PLAINTIFFS’ MOTION FOR LEAVE TO SUPPLEMENT COMPLAINT
AND GATHER DISCOVERY with the Clerk of the Court using the
CM/ECF system which will automatically send e-mail
record:
Marietta GA 30060
Cary S. Wiggins
Ga. Bar No. 757657
WIGGINS LAW GROUP
Suite 401
Telephone: (404) 659-2880
Facsimile: (404) 659-3274
[email protected]
-1455
Case 1:09-cv-02747-RLV Document 217 Filed 05/21/12 Page 1 of 17
ATLANTA DIVISION
GEORGIA, et al.,
Plaintiffs,
Defendant.
*
*
*
*
*
*
*
*
*
*
1:09-CV-2747-RLV
PLAINTIFFS’ REPLY ON MOTION FOR LEAVE
TO SUPPLEMENT COMPLAINT AND GATHER DISCOVERY
I.
Introduction.
In nearly every year since 2005, the City has adopted
laws to restrict the plaintiffs’ operations based on the
type of expression or speech offered in those venues.
By
repealing or amending those laws, the City all but concedes
that they were invalid.
no better.
The City’s latest ordinances fare
Given the stakes the plaintiffs deserve a chance
to challenge them.
See, e.g., Cota v. Maxwell-Jolly, No. C
09-3798 SBA, 2011 U.S. Dist. LEXIS 59677 (N.D. Cal. June 2,
2011)(granting motion for leave to supplement in light of
legislative amendments that affected the underlying claims
for injunctive relief); Doe v. Stevenson, No. 1:06-CV-00849,
2008 U.S. Dist. LEXIS 694 (S.D. Ohio Jan. 4, 2008)(similar
reasoning).
The plaintiffs also deserve an opportunity to pursue
56
their claim that the Nuisance Action was retaliatory.
This
is not a situation where the facts supporting the claim were
known when the first amended complaint was filed, or even
when the summary judgment response was filed.
Cf. Jameson
v. Arrow Co., 75 F.3d 1528, 1535 (11th Cir. 1996).
The
Court certainly has the discretion to say no, but it seems
unfair to force the plaintiffs to file a new federal lawsuit
to challenge the City’s latest infringement of their federal
rights.
See, e.g., Franks v. Ross, 313 F.3d 184, 198 (4th
Cir. 2002)(“Various courts have concluded that ‘requiring
[a] plaintiff to go through the needless formality and
expense of instituting a new action when events occurring
after the original filing indicated he had a right to relief
[is] inconsistent with the philosophy of the federal rules.’
6A Charles Alan Wright & Arthur R. Miller, Federal Practice
and Procedure § 1505 (2d ed. 1990)(citing cases).”)
(citations and footnote omitted).
II.
Argument.
A.
Pursuing supplemental claims is not unjust.1
It is probably helpful to divide the proposed
supplemental claims into two groups: (1) those seeking
1
See Doc. 210 at 6-13.
-2-
57
declaratory and injunctive relief from (and compensation
for) the City’s First Amendment retaliation, and (2) those
seeking declaratory and injunctive relief from the City’s
2012 Ordinances.
1.
First Amendment retaliation.
The City has never explained why it started the
Bergthold Investigation, or what it hoped to do gain once it
finished the investigation.
On the one hand, it does argue
that undercover investigations have been used as evidence of
secondary effects supporting adult entertainment laws.
Doc. 210 “City Br.” at 20-21.]
[See
On the other hand, the City
disavows introducing the fruits of the Bergthold
Investigation in support of the 2012 ordinances.
[See id.
at 17.]
What the City does argue (rather strenuously) is that
the plaintiffs cannot challenge the enforcement of specific
ordinance provisions that they agreed to comply with.
City Br. at 1, 2, 7, 8, 13, 14, 18, 19, 20, 24.]
[See
It says
the plaintiffs “have provided no support for ... a theory”
that its “enforcement action is a retaliation for legal
arguments made in court and in court documents in November
and December 2011.”
[City Br. at 7.]
That is not correct.
Discovery can and will reveal the who, what, where, why,
-3-
58
when and how the Nuisance Action was initiated.
Take the “when,” for example.
The City says that its
“enforcement investigation” began “in September 2011, months
before the November and December 2011 legal arguments that
Plaintiffs claim the City retaliated against.”
8 (emphasis in original); id. at 16.]
[City Br. at
The City appears to
be correct that the investigation supporting the Nuisance
Action began in early September 2011.
1-6 (559-564).
See Ex. A, Pt. 1 at
Thing is, Main Stage and the City were
briefing summary judgment in the Maxim Cabaret case at that
time; in fact, on August 31, 2011, Main Stage responded to
the City’s summary judgment motion by citing extensively to
Sergeant Ted Stevens’s deposition [Doc. 190] and arguing
that the adult clubs had little or no drug or prostitution
problems when compared to the City’s non-adult nightclubs.
See Ex. B (excerpt of Main Stage’s response on summary
judgment, served 8/31/11).
There are of course retaliatory investigations and
retaliatory prosecutions.
In this sense, the length of the
Bergthold Investigation does not diminish the curious timing
of the City’s prosecution (i.e., the timing of the decision
to sue the plaintiffs).
One could reasonably conclude that
a lengthy investigation of the plaintiffs (following their
-4-
59
deposition of Sgt. Stevens on August 3, 2011) culminating in
the Nuisance Action filed less than two weeks after the
court arguments incriminates the City’s motive.
[See
generally, Docs. 185 & 190.]
2.
The 2012 Ordinances.
The City says it is “unjust” for the plaintiffs to
challenge the 2012 amendments “because those amendments
eliminate provisions” that the plaintiffs “complained of.”
[City Br. at 9 (emphasis added).]
That is a half-truth.
The new ordinances also added provisions [see id. at 9-11
(summarizing key provisions)], including restrictions that
create an equal-protection problem.
The City’s conclusion that its 2012 Ordinances were
“carefully tailored ... so that they would not create any
new claims” is a friendly thought, but it misses the point.
[City Br. at 9.]
The revisions were suggested, if not
drafted, clandestinely by a Tennessee law firm and with no
input from those businesses (e.g., the plaintiffs) they
attempt to regulate.
That is a perverse way to go about
regulating an industry; it inevitably creates more problems
than it solves.
Why grandfather future adult establishments
but not the plaintiffs?
The City unfortunately has waived
an opportunity to explain that one.
[But see City Br. at 10
-5-
60
(explaining that it “added § 26-23(d)” to the Adult
Licensing Code “to specifically negate claim that latercoming sensitive use could render Adult Establishment
nonconforming.”).
Finally, the City says that in 2012 it can (and does)
rely upon the same legislative predicate that it (allegedly)
relied upon in 2005.
at 2).]2
[See City Br. at 12 (citing Doc. 191-3
The City did no more in 2012 than it did in 2009:
It relied on Bergthold’s suggested edits.
The City did not,
for example, conduct crime a crime study.
See, e.g., Ex. A,
Pt. 3 at 20 (1341).
Nor did it evaluate whether expressly
grandfathering 100 future adult establishment sites -- but
not the plaintiffs’ -- is a rational land-use measure, never
mind a compelling one.
Citing Artistic Entm’t, Inc. v. City of Warner Robins,
331 F.3d 1196 (11th Cir. 2003)(Artistic II), the City
suggests, parenthetically, that it can use the same
predicate for an amendatory ordinance as it did for the
2
Doc. 191-3 is a certified copy of Ordinance 2012-0203. Page 2 of that exhibit (which is page 1 of the
ordinance) contains the preamble, which, at paragraph three
states: “WHEREAS, the City Council has on several previous
occasions identified and documented the negative secondary
effects of adult establishments and hereby incorporates all
such previous findings and legislative record materials
concerning such negative secondary effects.”
-6-
61
original ordinance.
[City Br. at 12.]
important fact, however.
It leaves out one
In Artistic II the court observed
that it had, in Artistic I,3 “decided that the City of
Warner Robins, in enacting the original Adult Ordinance, had
an adequate basis for concluding that proscribing the sale
and consumption of alcohol would reduce the crime and other
social costs associated with adult businesses.”
1205 (quotation marks and citation omitted).
331 F.3d at
Only after
this observation did the Eleventh Circuit evaluate whether
the city “could rely on the original evidentiary support for
the Adult Ordinance in adopting the Amending Ordinance.”
Id.
The City had no judicial imprimatur to rely on when
drafting or adopting the 2012 ordinances.
No legislative
record was compiled for the 2012 ordinances.
No evidence
was presented to the City Council on or before February 7,
2012 to suggest that it would be reasonable to grandfather
future adult establishments but not the plaintiffs.
This
void is particularly troubling because the composition of
the City Council has changed since the original legislative
3
Artistic Entm’t, Inc. v. City of Warner Robins, 223
F.3d 1306 (11th Cir. 2000).
-7-
62
predicate was presented for reliance.4
At best the City can
show that one-half of its current City Council (three of six
members) relied on the original legislative predicate.
Cf.
500 N. Ave. LLC v. City of Bridgeport, No. 3:10cv1281 (MRK),
2012 U.S. Dist. LEXIS 45266, at *23 (D. Conn. Mar. 30,
2012)(holding that the city failed to carry its burden of
proof under Alameda Books,5 noting, “the fact that other
individuals—Mr. Riley, Mr. Kish, Ms. Fardy, and Mr.
Kennedy—were members of the Commission in 2004 when
secondary effects were discussed and during the 2008/2009
amendment process shows nothing about whether the Commission
as a whole relied on such evidence when enacting the
2008/2009 amendments.”)(emphasis in original).
B.
Pursing supplemental claims will not cause
undue delay.6
To hear the City air frustration about delaying
4
In December 2005, the City Council consisted of
Dianne Fries, Tibby DeJulio, Karen Meinzen McEnerny, Dave
Greenspan, Ashley Jenkins and Rusty Paul. By February 2012,
only Fries, DeJulio and McEnery remained from the original
six: The three replacement councilmembers are John Paulson,
Chip Collins, Gabriel Sterling.
5
City of Los Angeles v. Alameda Books, Inc., 535 U.S.
425 (2002).
6
See Doc. 210 at 13-14.
-8-
63
resolution of this case, one might think that it was the
plaintiffs -- not the City -- who adopted unconstitutional
laws in 2009, enforced them in an unconstitutional manner in
2011, only to adopt new laws in 2012 (after the plaintiffs
had briefed summary judgment).
game.
The City is playing a shell
And that will delay things.
The City has also played hide the ball.
During
discovery, it withheld thousands of electronic and paper
documents.
The plaintiffs were forced to enlist the Court’s
help, after which the City searched its electronic records,
revamped its privilege logs, and released documents and new
information.
See, e.g., Docs. 86, 97, 111, 118-120.
Though
Judge Hagy ultimately ordered the City to produce only one
e-mail, his proceeding triggered extensive production by the
City.
Notably, Judge Hagy did not impose any costs or fees
on the plaintiffs, perhaps in part because the arguments at
least present a genuine question of law.7
Remarkably, the
City has yet to supplement outstanding discovery in this
7
See Jack R. Hancock, Private Contractors Entitled to
Attorney-Client Privilege, DRItoday, (Oct. 26, 2011)
(summarizing Judge Hagy’s ruling in this case),
http://dritoday.org/feature.aspx?id=191)(visited May 21,
2012).
-9-
64
case.8
If leave is granted, the plaintiffs will challenge
O.C.G.A. § 16-6-16 as applied to their operation.
Whether
an “as applied” challenge to the enforcement of a state
statute requires that the Attorney General “be served with a
copy of the proceeding” and entitlement “to be heard” is not
controlling here.
See O.C.G.A. § 9-4-7(c).
It was the City
who elected to dust off the State’s code books and enforce §
16-6-16 against the plaintiffs.
If the City believes that
involving the Attorney General will further delay things, it
should not have deployed that most-unusual statute.
[City
Br. at 14.]
C.
Adding supplemental facts will support
existing claims.9
The plaintiffs allege that the City has unlawfully
delegated the regulation of adult entertainment to private
actors.
The Bergthold Investigation supports that claim.
8
The May 7, 2012 privilege log prepared by the City in
response to Main Stage’s discovery requests in the Nuisance
Action is thoroughly deficient as well. See Ex. C. By
comparing the dates and cryptic descriptions of this log
(Ex. C) to the e-mails in Ex. A, it is clear that Bergthold
was communicating with the City’s police department while
each investigating the plaintiffs.
9
See Doc. 210 at 16-23.
-10-
65
Consider first that discovery produced in the Nuisance
Action shows Bergthold as the City’s attorney “in adult
business matters.”
See Ex. D, City’s Response to Main
Stage’s 1st RFPs (excerpt) at 2, RFP # 17.
Consider also
that Bergthold hired and directed the private investigators
(PI) to inspect the plaintiffs.
See generally, Ex. A, Pts.
1,2 & 3 (discovery produced in the Nuisance Action).
He
sent his PIs boilerplate affidavits for how to report crime
in the businesses,10 and Web sites for how to detect semen
in the viewing booths.11
Bergthold even sent his PIs the
City’s adult entertainment permit applications (with
photographs) of various employees and managers, including
those that he obtained on the day that he met with the
police department.
See, e.g., Ex. A, Pt. 1 at 13-15; Ex. A,
Pt. 2 at 1-6 (748-753).
The circumstances surrounding the Bergthold
Investigation remain unclear.
Although the City has
provided a contract dated January 5, 2012,12 which is signed
10
See Ex. A, Pt. 1 at 20-22 (693-695).
11
See Ex. A, Pt. 1 at 23 (696).
12
See Ex. A, Pt. 3 at 7-9 (539-541).
-11-
66
by Bergthold but not by the City Attorney,13 which it says
hires Bergthold for the Nuisance Action, the City has not
produced minutes, a resolution or an executed contract which
would allow it to pay Bergthold to prosecute the Nuisance
Action (which, again, includes suing Love Shack and Main
Stage).
The plaintiffs also allege that the City’s predominant
concern for adopting the 2012 ordinances was not to reduce
adverse secondary effects.
The City seems to argue that any
alleged retaliation that occurred in 2011 cannot affect the
analysis for a 2009 law; stated another way, any evidence
created in 2011 (or 2012) is irrelevant in analyzing the
“predominant concern” for ordinances adopted in 2009.
The
City’s position is an anomalous one: It says that the fruits
of the Bergthold Investigation –- whether obtained through
retaliation or by legitimate enforcement -– have no bearing
on either the 2009 or the 2012 ordinances.
13
According to the City Charter, the City Attorney
“shall review all contracts of the city but shall not have
the power to bind the city.” Art. III, § 3.08 (available
http://www.sandyspringsga.org/City-Government/City-Charter)
(visited May 21, 2012). It is unclear, again, because the
City has not supplemented discovery, but it appears that
Bergthold’s fees for prosecuting the Nuisance Action are
being paid by Georgia Interlocal Risk Management Agency
(GIRMA).
-12-
67
Whatever can be said about 2025 Emery Highway,14 its
holding is not relevant here.
establishment.
That case concerned one adult
The raid was directed and carried out by the
Bibb County Sheriff’s Office -- not a private law firm and
its private investigators.
What did the City hope to do with this evidence?
D.
The City has violated Rule 34.
The City says it need not use Rule 34 to “catch
independent-contractor dancers violating the agreed-upon
regulations.”
[City Br. at 17.]
In taking this position,
the City is forced to straddle the fence.
From one side,
the City says that the Bergthold Investigation has nothing
to do with this case.
Yet sending private investigators
into the establishments to check whether “the agreed upon
regulations” are being violated has everything to do with
this litigation.
What else can a private investigator do
with this information?
From the other side, although the police could
investigate the establishments for crime without complying
with Rule 34, the City’s private attorney (using private his
investigators) could not.
Especially not for the purpose of
14
2025 Emery Highway, LLC v. Bibb County, 377 F. Supp.
2d 1310 (M.D. Ga. 2005).
-13-
68
gathering evidence to defend this litigation.
Still, the
City finds the prospect of honoring Rule 34 “silly” when it
comes to inspecting the establishments.
[City Br. at 18.]
The problem here is that, in the Nuisance Action, the City
is not relying on undercover law enforcement’s observation
of crime unrelated to expressive activity to justify raids,
arrests, citations or even a nuisance abate proceeding; it
is relying on Bergthold’s and his private investigators’
observations that the plaintiffs (or their management)
allowed dancers to violate adult laws that Bergthold drafted
-- and which are the subject of this litigation.
There is a reason why the City staffed the police
department with City employees rather than with CH2M Hill
contractors, private investigators or security outfits.
Government agents are sworn to uphold the constitutions and
follow federal, state and local laws when investigating and
prosecuting suspected crimes.
The City can certainly send
police officers into the establishments periodically, just
as it does other businesses in Sandy Springs.
But that is
not what is happening here.
What the City has done, through its City Attorney
(Wendell Willard), is hand the keys over to Bergthold in all
“adult business matters.”
The City cannot prosecute anyone
-14-
69
under that arrangement.
Nor should it be permitted to carry
out a nuisance abatement suit under that arrangement.
[But
see City Br. at 17-18. (“Nevertheless, Plaintiffs contend
that the City’s only available means for determining whether
Plaintiffs are complying with the City’s ordinance is to
proceed through formal discovery requests in this Court.”
(emphasis in original).]15
The City says that the Bergthold Investigation “was not
part of the present litigation and was never intended for
the purpose of developing evidence for the present
litigation.”
[City Br. at 21.]
The plaintiffs should not
be forced to accept that self-serving assertion at face
value.
E.
The City’s remaining arguments.
The City is correct that the plaintiffs did not attach
a copy of the proposed complaint.
They instead explained
the substance of it.
15
The City says that if a plaintiff challenging an
ordinance moves for (but fails to obtain) a preliminary
injunction, “the city may enforce its ordinance.” City Br.
at 19. True. But the City enforcing an ordinance, and
Bergthold employing private investigators to inspect the
adult businesses (who sued the City) for compliance with the
ordinances that he drafted (and which are the subject of the
suit), are wildly different propositions.
-15-
70
III. Conclusion.
For all these reasons, the plaintiffs ask for
permission to supplement their complaint.
This 21st day of May, 2012.
WIGGINS LAW GROUP
Cary S. Wiggins
Ga. Bar No. 757657
Suite 401
Telephone: (404) 659-2880
Facsimile: (404) 659-3272
-16-
71
this PLAINTIFFS’ REPLY ON MOTION FOR LEAVE TO SUPPLEMENT
COMPLAINT AND GATHER DISCOVERY with the Clerk of the Court
record:
Marietta GA 30060
This 21st day of May, 2012.
Cary S. Wiggins
Ga. Bar No. 757657
WIGGINS LAW GROUP
Suite 401
Telephone: (404) 659-2880
Facsimile: (404) 659-3274
[email protected]
-17-
72
FILED IN CHAMBERS
U.S.D.C. - Rome
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
JUN 062012
JA~~rk
- r -jue
plIIY \.ilerk
FLANIGAN'S ENTERPRISES, INC.
OF GEORGIA, et al.,
Plaintiffs,
CIVIL ACTION
v.
NO. 1:09-CV-2747-RLV CITY OF SANDY SPRINGS, GEORGIA, Defendant. o
As the court
R D E R
is familiar with the
factual
and procedural
background of this case, the court moves directly to the issue at
This matter comes before the
hand.
court on the plaintiffs'
"motion for leave to supplement complaint and gather discoveryII
[Doc. No. 205].
The plaintiffs argue that after the plaintiffs filed their
response
brief
on
summary
plaintiffs in state court
amended
alcoholic
(and
repealed)
beverage
judgment,
(the
some
ordinances
the
defendant
"State Court Action")
of
its
(the
adult
"2012
sued
the
and also
entertainment
Ordinances").
and
The
plaintiffs argue that pursuant to Rule 15 of the Federal Rules of
Civil Procedure, they are entitled to supplement their complaint to
add claims under the First and Fourteenth Amendments and Georgia's
73
constitution and law,
as well as to gather additional discovery
regarding the State Court Action and the 2012 Ordinances.
The plaintiffs argue that the defendant, before replying to
the summary judgment motion in this court, adopted the new 2012
Ordinances regulating adult entertainment.
The plaintiffs claim
that they should be permitted to conduct some discovery to learn
how
and
why
adopted.
the
2012
Ordinances
were
conceived,
drafted
and
Additionally, the plaintiffs argue that they should be
permitted to explore the facts surrounding the State Court Action,
to show that the State Court Action is a retaliatory and unlawful
delegation.
In
On all points, the court agrees with the plaintiffs.
reaching
defendant
I
S
its
arguments,
conclusion,
the
court
considered
the
which the court concludes to be without
merit. The defendant first argues that leave to amend should be
denied because the plaintiffs failed to attach the proposed amended pleading.
to
amend
The defendant next argues that allowing the plaintiffs
would
unduly
prejudice
plaintiffs seek to challenge
the
defendant
because
the
enforcement of regulations with which
Additionally,
the
defendant
the plaintiffs agreed to comply.
not cause the plaintiffs any
the 2012 Ordinances d 0
that
alleges
plaintiffs
provisions that the
deleted
they
injury because
that leave should be denied
The defendant also argues
challenged.
2
74
because it would cause undue delay.
Moreover, the defendant argues
that the amendment would be futile because the plaintiffs'
filings disprove retaliation.
own
Lastly, the defendant argues that
the plaintiffs' allegations that new facts support the plaintiffs'
existing claims is without merit.
The court concludes that the plaintiffs should be granted
leave to supplement their complaint and conduct discovery with
respect
to
defendant
the
2012
believes
plaintiffs,
Ordinances.
that
the
Regardless
2012
Ordinances
the
do
whether
not
harm
the
the
the 2012 Ordinances changed the nature of multiple
claims currently pending before this court.
at
of
center
of
the
plaintiffs'
Because the ordinances
claims
have
changed,
the
plaintiffs should have an opportunity to address the changes and
conduct discovery regarding the 2012 Ordinances.
The court also concludes that the plaintiffs are entitled to
supplement their complaint with new claims regarding the State
Court Action, and to conduct discovery with respect to such claims.
The
court
does
not
agree
with
the
defendant's
allowing such amendment would be futile.
argument
Moreover,
that
the court
agrees with the plaintiffs that while no proposed amended pleading
was attached to t h e mot 1.' on , the plal.'ntl.'ffs provided the substance
of the proposed amendment.
The co urt concludes that the defendant
3
75
will
not
be
prejudiced
by
allowing
the
plaintiffs
leave
to
supplement their complaint, and that allowing such leave will not
result in unjustified delay.
For
the
above
reasons,
the
court
GRANTS
the
plaintiffs'
"motion for leave to supplement complaint and gather discovery"
(Doc. No. 205].
Therefore, the court DIRECTS the plaintiffs to
file their supplemental complaint within 14 days of the docketing
of this order.
The court REOPENS discovery for 60 days from the
date of the docketing of the plaintiffs'
supplem~ntal
complaint.
Because the court granted the plaintiffs'
motion for leave to
supplement complaint and gather discovery,
the court DENIES the
defendant's motion for summary judgment (Doc. No. 148] as moot.
SO ORDERED, this
,~
day of June, 2012.
iaf:fL~~~~~~:?> '
Senior United States District Judge
4
76
lull WIGGINS LAW GROUP
Attorneys and Courisetors at Law
260 Peachtree Street. NW., Suite 401
AtLanta, Georgia 30303
June 29
Facsimile
(4041 659-3274
wigginsLawgroup.com
2012
Hon. Samuel S. Olens, Attorney General
Department of Law, State of Georgia
40 Capitol Square, SW
Atlanta GA 30334—1300
RE:
Flanigan’s v. City of Sandy Springs
N.D. Ga. Case No. l:09-CV-2747-RLV
Dear Mr. Attorney General:
Thank you for taking time to review this letter.
My firm represents the plaintiffs in this § 1983 lawsuit
“Flanigan’s”), which is pending against the City of Sandy
Springs (“the City”)
I am writing to you about two aspects of
that case.
First, the plaintiffs recently amended their complaint to
challenge the constitutionality of applying O.C.G.A. § 16-6-16 to
their operations.
Whether an “as applied” challenge to a state
statute requires that the Attorney General “be served with a copy
of the proceeding,” and entitles the Attorney General “to be
heard,” is unclear to me.
But see O.C.G.A. § 9—4—7(c).
In an
abundance of caution, I am providing you with a copy of the
controlling complaint with this letter.
[~ Ex. A.]
Second, and as you will see in reviewing this complaint, a
central claim is that the City has unlawfully delegated
governmental authority in violation of the Fourteenth Amendment.
[See Ex. A, ¶~[ 129—130, 133(j).]
On matters of “adult
entertainment,” the City has outsourced all licensing, zoning,
and code enforcement to private contractors. ~ The City has
even delegated the role of “hearing officer” from denials of
adult—entertainment work-permit applications to a private person.
These delegation arguments have been expanded by this latest
77
Hon. Olens
Page 2
June 29 2012
complaint, and I believe it is important that your Office be
aware of this.
Shortly after the plaintiffs briefed summary judgment in
See City of Sandy
Flanigan’s, the City sued them in state court
Springs v. 6420 Roswell Rd
Inc., et al., No. 2Oll—CV—209162
(Fulton County Superior Court, filed Dec. 13, 2011) (“the Nuisance
Action”)
Even though the federal court has referred to the
timing of the Nuisance Action as “more than curious,” whether
the Nuisance Action is in fact retaliatory is not my focus here.
Instead my concern is how the City (or its carrier, GIRMA)’ is
selecting and compensating the private attorneys who are
prosecuting the Nuisance Action.
,
.
I believe that the City has violated Georgia public policy by
paying the same attorneys to (1) draft the City’s adult
entertainment laws, (2) defend those laws in civil litigation,
and then (3) prosecute citizens based on alleged violations of
those laws.
The arrangement is fraught with conflict
See,
e.g., State v. Culbreath, 30 S.W.3d 309 (Tenn. 2000), People ex
rel. Clancy v. Superior Court, 705 P.2d 347 (Cal. 1985)
Based
on this belief, I asked the City to dismiss the Nuisance Action.
[See Ex. C, Letter from Wiggins to Dykes of 1/6/12.]
My request
was denied.
[See Ex. D, Letter from Dykes to Wiggins of
1/18/12.]
.
With this letter, I am kindly asking that your Office inquire
into the propriety of the City hiring a private out-of-state law
firm to prosecute a nuisance-abatement action under these
circumstances:
The City initially paid the Law Offices of Scott D.
Bergthold (“Bergthold”
to draft adult entertainment
ordinances, and to assemble evidence supporting those
ordinances, which it ultimately adopted in April 2009
(“the 2009 Ordinances”
As a basis for its suit, the City relies in part on
O.C.G.A. § 41—3—1 (“Establishment, maintenance, or use of
building, structure, or place for unlawful sexual purposes;
evidence of nuisance”)
See Ex.
B at 4.
Georgia Interlocal Risk Management Agency
78
Hon. Olens, Page 3
June 29, 2012
Since 2009, the City has been paying Bergthold on an
hourly basis to defend it against challenges brought by
the plaintiffs to the 2009 Ordinances, including claims
that the evidence does not support those ordinances;
Bergthold then hired and directed private detectives to
surreptitiously inspect or investigate the plaintiffs
from around September 2011 until January 2012, looking
for criminal and other violations (“the Bergthold
Investigation”)
The City paid for the Bergthold
Investigation.
During this investigation, the City’s
police department provided Bergthold with copies of
adult entertainment work—permit applications filed by
various employees and managers of the plaintiffs’
businesses, and Bergthold sent this sensitive material
(which included photographs of these persons) to his
private investigators;
•
The City is now
Nuisance Action,
proceeding that
businesses and,
exclusively out
paying Bergthold to prosecute the
which, again, is a quasi-criminal
names the City’s adult entertainment
according to the City, arises
of the Bergthold Investigation;
•
The City recently paid Bergthold to evaluate the
constitutional flaws that the plaintiffs identified in
early 2010 and briefed on summary judgment in late 2011
see Flanigan’s docket) in the 2009 Ordinances (drafted
by Bergthold)
•
Following that evaluation, the City amended the 2009
Ordinances in a way that, as the federal court recently
held, “changed the nature of multiple claims currently
pending before th[eJ court” [~ Lx. E at 3.]; and, the
City is now paying Bergthold to defend those amendments
(“the 2012 Ordinances”)
.~
ee generally, Ex. A, ¶~t 112—128.]
put this arrangement in perspective, suppose that Greater Ga.
t is unclear whether Bergthold’s fees and costs have
been, and are being, covered by the City, by GIRMA, or by both.
Whatever the case, it is my understanding that Bergthold has been
paid well into six figures.
79
Hon. Olens, Page 4
June 29, 2012
Amusements. LLC v. State of Georgia,
Ga. App.
A12A0692,
2012 Ga. App. LEXIS 483 (May 25 2012)
contained these
additional facts:
Suppose the State (acting through the district
attorney) did not simply appoint Mr Private Attorney, on a
contingency—fee basis to pursue civil claims arising out of a
gambling investigation of unwanted businesses.
Suppose that,
before making this appointment, the State first hired Mr. Private
Attorney to draft the criminal law that he would use to seize
assets from those unwanted businesses, and further suppose the
State hired Mr. Private Attorney to defend it in a civil lawsuit
(brought by those unwanted businesses) challenging the same state
law
Suppose finally that this state law was content-based,
targeting protected speech and expression (e g., advertising
gambling) for onerous restrictions.
—
—,
I believe that Georgia’s citizens and, yes my clients would
benefit from learning your Office’s position on the City’s
arrangement.
New cities are sprouting up every year.
Some of
these cities, no longer able to rely upon richly—staffed law
departments will look to Sandy Springs as a model
If Sandy
Springs may hire an out—of—state law firm to draft defend and
then enforce its adult entertainment laws why can t other cities
do the same? And if those cities may conflate these core
governmental functions, as Sandy Springs has done, why can’t they
invoke the work-product or attorney-client privileges when the
public requests information about legislation?
I do understand that Georgia’s local governments
and even the
State itself
at times can and should hire private counsel to
handle specialized matters.
That notion is not questioned here.
Nor do I quarrel with the City’s near-unprecedented privatization
arrangement, in the main.
E.g., Ex. F, David Segal, A Georgia
Town Takes the People’s Business Private, N.Y. Times (June 23,
2012)
www. nytimes com/20l2/06/24/business/a—georgia—town—takes
—the-peoples—business—private.html?pagewanted=all (visited June
28, 2012)
The problem is that, in its effort to streamline
government services, the City has essentially outsourced all
“adult business matters” to one attorney, regardless of the
governmental function at issue.
[Compare Lx G with Nightlife
—-
——
.
As mentioned, I do not believe that the
Bergthold on a contingency—fee basis; however,
is being “compensated on an hourly basis, the
[has] acquired a direct financial interest in
scope of the ongoing prosecution.” Cuibreath,
City has hired
because Bergthold
reality is that he
the duration and
30 S.W.3d at 316.
80
Hon. Olens Page 5
June 29, 2012
Partners, Ltd v. City of Beverly Hills, 108 Cal App. 4th 81, 96
(Cal. App 2d Dist. 2003) (holding procedural due process
violation were “the roles of advocate for the agency and advisor
to the decision maker were not insulated by being performed by
different attorneys from a large office. Boga acted as both
advocate for the initial denial of the renewal application, and
then as advisor to the decision maker on the appeal of the
decision for which he had advocated.”).]
That policy remains
unacceptable, and, regardless, it is one that will reap
constitutional problems.
I have copied the State Bar of Georgia with this letter for one
reason I believe that Mr. Bergthold, in commandeering City
resources to plan and execute the Bergthold Investigation,
ventured well beyond his pro-hac-vice status in Flanigan’s.
In
Flanipan’s, Mr. Bergthold has stated that the Bergthold
Investigation had nothing to do with that litigation.
If this
proffer is true, Mr. Bertghold directed an undercover
investigation of the City’s adult—entertainment venues (and
ffered legal advice to the City based on the results of that
investigation) for the better part of a year before applying for
pro hac vice admission in the Nuisance Action.
In other words,
Mr. Bergthold is not simply representing the City “in the courts
of this state in isolated cases”; he is, as the City has said,
the City’s attorney on “adult business matters.” ~ Ga. R. &
Regs. St. Bar 1—203 (A) (1)
I sincerely appreciate your time in reviewing this situation.
If
your Office would like any additional information, or to discuss
this matter, I welcome the opportunity.
With kindest regards,
I am
yery truly yours,
WIGGINS LAW GROUP
Cary S. Wiggins
Enclosures
CSW sj
cc:
S.D.
F.D.
W.K.
R.A.
Bergthold, Esq./B.A. Dykes, Esq. (w/out exhibits)
Bentley, Jr., Esq./M.L. Wingler, Esq. (w/out exhibits)
Willard, Esq. (w/out exhibits)
Hall, Esq. (State Bar of Georgia) (wI exhibits)
81

Challenging the Nuisance Abatement Action July 12, 2012

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