Case: 16-11086    Date Filed: 09/28/2016   Page: 1 of 4


                                                          [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 16-11086
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 1:15-cv-02606-TWT



TOKYO GWINNETT, LLC,
d.b.a. Tokyo Valentino,

                                                              Plaintiff-Appellant,

                                    versus

GWINNETT COUNTY, GEORGIA,

                                                            Defendant-Appellee.

                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Georgia
                      ________________________

                             (September 28, 2016)

Before ED CARNES, Chief Judge, WILLIAM PRYOR, and FAY, Circuit Judges.

PER CURIAM:
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      Tokyo Gwinnett, LLC, doing business as Tokyo Valentino, filed this action

in the Northern District of Georgia claiming that certain business licensing and

adult entertainment ordinances in Gwinnett County violated its rights under the

First Amendment’s Free Speech Clause and the Fourteenth Amendment’s Due

Process Clause. It sought damages under 42 U.S.C. § 1983, as well as declaratory

and injunctive relief.

      While this action was pending in the district court, Gwinnett County

replaced the challenged ordinances with a substantially revised set of ordinances.

It then moved the district court to dismiss Tokyo Valentino’s complaint as moot

because of the new ordinances. Tokyo Valentino opposed that motion and

separately moved for leave to file a second amended complaint challenging both

the original ordinances and the revised ones. The district court granted the

County’s motion and denied Tokyo Valentino’s motion. Here is the entirety of its

orders:

      This is an action seeking to enjoin Gwinnett County’s adult
      entertainment ordinance. It is before the Court on the Defendant’s
      Motion to Dismiss and Suggestion of Mootness [Doc. 19]. The
      ordinance in effect at the time this action was filed has been repealed
      and superceded. Because there may be a ripeness issue, the Plaintiff’s
      Motion for Leave to File Second Amended Complaint [Doc. 22] is
      DENIED. The Defendant’s Motion to Dismiss [Doc. 19] is
      GRANTED. The case is moot.

Tokyo Valentino appeals those orders and the resulting judgment.



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      We begin by reviewing the district court’s decision to dismiss this entire

action as moot. The rule is that, when a plaintiff challenges the constitutionality of

local ordinances, replacement of the ordinances usually moots the plaintiff’s claims

for prospective relief, see Coral Springs Street Sys., Inc. v. City of Sunrise, 

, 1331 n.9 (11th Cir. 2004), but not his claims for damages, see KH

Outdoor, L.L.C. v. Clay Cty., 

, 1303 (11th Cir. 2007); Crown Media,

LLC v. Gwinnett Cty., 

, 1325 (11th Cir. 2004); Granite State

Outdoor Advert., Inc. v. City of Clearwater, 

, 1119 (11th Cir. 2003).

That rule means that the district court properly dismissed as moot Tokyo

Valentino’s claims for injunctive and declaratory relief. It also means, however,

that the district court erred in dismissing as moot Tokyo Valentino’s claims for

damages. The new ordinances cannot have mooted those damages claims because

those claims concern harm that, allegedly, was already caused by the old

ordinances.

      Additionally, the district court abused its discretion when it denied Tokyo

Valentino’s motion for leave to file a second amended complaint. The court did so

on the ground that “there may be a ripeness issue.” The bare possibility that a

claim is unripe does not support the denial of a motion to file an amended

complaint, particularly since Federal Rule of Civil Procedure 15(a)(2) instructs that

district courts “should freely give leave [to amend] when justice so requires.”


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      We express no opinion as to whether the district court ought to dismiss this

action on some other ground, such as lack of standing or failure to state a claim.

And we express no opinion as to whether this case is unripe for adjudication, or

whether there is some other reason that would justify denying Tokyo Valentino’s

motion for leave to file an amended complaint. We leave those issues for the

district court to decide in the first instance. What we hold today — and all that we

hold today — is that Gwinnett County’s new ordinances do not moot all of this

action, and that the district court abused its discretion by denying leave to file an

amended complaint based on the mere possibility that this action is unripe for

review.

      VACATED and REMANDED for further proceedings consistent with this

opinion.




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