Filed: Nov. 20, 2015
Latest Update: Mar. 02, 2020
Summary: 14-1581-cv (Lead), 14-2113-cv (XAP) Keepers Inc. v. City of Milford In the United States Court of Appeals for the Second Circuit AUGUST TERM 2014 Nos. 14-1581-cv (Lead); 14-2113-cv (XAP) KEEPERS, INC., DBA KEEPERS, FKA SIDEPOCKETS, INC., Plaintiff-Appellant-Cross-Appellee, v. CITY OF MILFORD, Defendant-Appellee-Cross-Appellant, v. SIDEPOCKETS, INC., DBA KEEPERS, AFTER DARK LLC, DBA ROMANTIX ADULT EMPORIUM, Plaintiffs-Cross-Appellees. On Appeal from the United States District Court for the Distri
Summary: 14-1581-cv (Lead), 14-2113-cv (XAP) Keepers Inc. v. City of Milford In the United States Court of Appeals for the Second Circuit AUGUST TERM 2014 Nos. 14-1581-cv (Lead); 14-2113-cv (XAP) KEEPERS, INC., DBA KEEPERS, FKA SIDEPOCKETS, INC., Plaintiff-Appellant-Cross-Appellee, v. CITY OF MILFORD, Defendant-Appellee-Cross-Appellant, v. SIDEPOCKETS, INC., DBA KEEPERS, AFTER DARK LLC, DBA ROMANTIX ADULT EMPORIUM, Plaintiffs-Cross-Appellees. On Appeal from the United States District Court for the Distric..
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14‐1581‐cv (Lead), 14‐2113‐cv (XAP)
Keepers Inc. v. City of Milford
In the
United States Court of Appeals
for the Second Circuit
AUGUST TERM 2014
Nos. 14‐1581‐cv (Lead); 14‐2113‐cv (XAP)
KEEPERS, INC., DBA KEEPERS, FKA SIDEPOCKETS, INC.,
Plaintiff‐Appellant‐Cross‐Appellee,
v.
CITY OF MILFORD,
Defendant‐Appellee‐Cross‐Appellant,
v.
SIDEPOCKETS, INC., DBA KEEPERS, AFTER DARK LLC,
DBA ROMANTIX ADULT EMPORIUM,
Plaintiffs‐Cross‐Appellees.
On Appeal from the United States District Court
for the District of Connecticut
ARGUED: MAY 18, 2015
DECIDED: NOVEMBER 20, 2015
Before: CABRANES, RAGGI, and CHIN, Circuit Judges.
Plaintiff Keepers, Inc. (“Keepers”) and defendant City of
Milford, Connecticut (“Milford” or “the City”) appeal and cross‐
appeal, respectively, from partial summary judgment awards to each
party by the United States District Court for the District of
Connecticut (Alvin W. Thompson, Judge). This case presents two
questions related to Chapter 2.3 Milford’s municipal code, which
regulates “adult‐oriented establishments.” The first is whether the
District Court improperly considered the affidavit of Milford Chief of
Police Keith Mello in granting partial summary judgment for the
City. Keepers argues that the District Court should have struck the
affidavit because it contradicted testimony given by Milford’s former
city attorney in a deposition taken pursuant to Rule 30(b)(6) of the
Federal Rules of Civil Procedure. We conclude that the District Court
did not “abuse its discretion” in considering the affidavit, and we
accordingly AFFIRM the District Court’s partial summary judgment
award to the City.
The second question is whether the City’s requirement that
sexually oriented businesses publicly post the names of their
operators, officers, and significant owners violates the First
Amendment. Keepers does not appeal a judgment by the District
Court upholding that requirement with respect to individuals who
operate, manage, or control such businesses, but Milford appeals the
2
award of partial summary judgment in favor of Keepers holding the
requirement unconstitutional with respect to passive owners and
officers. The District Court should not have reached the merits of that
issue, nor does this Court do so, because Keepers’ First Amendment
challenge does not present a justiciable case or controversy under
Article III of the U.S. Constitution. Accordingly, we VACATE the
District Court’s partial judgment for Keepers insofar as it reached the
merits of the public‐posting requirement, and we REMAND the
cause to the District Court with direction to dismiss that claim for
lack of subject‐matter jurisdiction.
JENNIFER M. KINSLEY (Daniel A. Silver, Silver
& Silver LLP, New Britain, CT, on the brief),
Kinsley Law Office, Cincinnati, OH, for
Plaintiff‐Appellant‐Cross‐Appellee.
SCOTT D. BERGTHOLD (James N. Tallberg,
Karsten & Tallberg LLC, West Hartford, CT,
on the brief), Law Office of Scott D.
Bergthold, Chattanooga, TN, for Defendant‐
Appellee‐Cross‐Appellant.
JOSÉ A. CABRANES, Circuit Judge:
Plaintiff Keepers, Inc. (“Keepers”) and defendant City of
Milford, Connecticut (“Milford” or “the City”) appeal and cross‐
3
appeal, respectively, from partial summary judgment awards to each
party by the United States District Court for the District of
Connecticut (Alvin W. Thompson, Judge). This case presents two
questions related to Chapter 2.3 Milford’s municipal code, which
regulates “adult‐oriented establishments.” The first is whether the
District Court improperly considered the affidavit of Milford Chief of
Police Keith Mello in granting partial summary judgment for the
City. Keepers argues that the District Court should have struck the
affidavit because it contradicted testimony given by Milford’s former
city attorney in a deposition taken pursuant to Rule 30(b)(6) of the
Federal Rules of Civil Procedure. We conclude that the District Court
did not “abuse its discretion” in considering the affidavit, and we
accordingly AFFIRM the District Court’s partial summary judgment
award to the City.
The second question is whether the City’s requirement that
sexually oriented businesses publicly post the names of their
operators, officers, and significant owners violates the First
Amendment. Keepers does not appeal a judgment by the District
Court upholding that requirement with respect to individuals who
operate, manage, or control such businesses, but Milford appeals the
award of partial summary judgment in favor of Keepers holding the
requirement unconstitutional with respect to passive owners and
officers. The District Court should not have reached the merits of that
issue, nor does this Court do so, because Keepers’ First Amendment
challenge does not present a justiciable case or controversy under
Article III of the U.S. Constitution. Accordingly, we VACATE the
4
District Court’s partial judgment for Keepers insofar as it reached the
merits of the public‐posting requirement, and we REMAND the
cause to the District Court with direction to dismiss that claim for
lack of subject‐matter jurisdiction.
I. BACKGROUND
A. Milford’s Regulation of “Adult‐Oriented Establishments”
Since 1996, Milford has regulated sexually oriented businesses
(“SOBs”1) through its Ordinance Regulating Adult‐Oriented
Establishments, which forms Chapter 2.3 of its municipal code. In
2003, Milford amended Chapter 2.3 to add several new restrictions
on SOBs, including regulations for live performances involving
nudity, new licensing requirements for operators of SOBs, and
periodic inspections.2 Most relevant here, the amended ordinance
required an SOB to obtain an “adult‐oriented establishment”
license—which had to state the names of everyone who applied for
1 The Milford ordinances usually refer to “adult‐oriented establishments,”
but they sometimes speak of “sexually oriented businesses” or “SOBs,” as do the
parties and much of the relevant case law. We follow the District Court in using
the latter term. See Keepers, Inc. v. City of Milford, Conn., 944 F. Supp. 2d 129, 138
n.1 (D. Conn. 2013).
Milford, Conn., Ordinances § 2.3 (2003); see Keepers, 944 F. Supp. 2d at
2
138. Except as noted, subsequent statutory references are to the Milford municipal
code.
5
it—and to post it “in a conspicuous place at or near the entrance . . .
so that it [could] be easily read at any time.”3
Keepers fell within the scope of the 2003 ordinance. Keepers
had been owned since 2001 by Joseph Regensberger, who initially
operated the business as a restaurant and bar called Sidepockets.4 In
2002, however, Regensberger decided to convert Sidepockets into a
“cabaret‐style nightclub” featuring clothed and “seminude” female
“dance entertainment.”5 He accordingly obtained from the City the
necessary adult‐entertainment license pursuant to Chapter 2.3.6
In December 2003, shortly after Milford amended Chapter 2.3,
Keepers filed suit in the District Court, challenging the ordinance’s
constitutionality. The City agreed not to enforce the ordinance while
the litigation was pending.
In 2007, Milford repealed and replaced the ordinance.7 Many of
the provisions in the 2007 ordinance were similar to those they
replaced, although some requirements, such as those governing
3 § 2.3‐4(5) (2003).
App. 53. References to “App.” refer to the Appendix of Plaintiff‐
4
Appellant‐Cross‐Appellee Keepers.
Affidavit of Joseph Regensberger, Doc. 52‐6, at 2 (“Regensberger
5
Affidavit”).
6 Id.
See Sidepockets, Inc. v. City of Milford, Conn., 528 F. Supp. 2d 34, 35 (D.
7
Conn. 2007); App. 57.
6
“adult arcades”—booths for viewing sexually explicit films—were
stricter.8 Most relevant here, the 2007 ordinance introduced a more
demanding public‐posting requirement. Like the 2003 ordinance, the
2007 ordinance required an SOB to post its “adult‐oriented
establishment” license conspicuously near its entrance. But the 2007
ordinance expanded the list of individuals whose names had to
appear on a license application—and, by extension, on the publicly
posted license itself. Under the 2003 ordinance, the license had to
include only the names of “operators”9 and “any other persons
directly involved in the management or control of the adult‐oriented
establishment.”10 But the 2007 ordinance broadened that list to
include “each person with an influential interest” in the SOB or in “a
legal entity that controls” it.11 The 2007 ordinance defined “influential
interest” to include “[a]ny of the following”:
(1) the actual power to operate the sexually oriented
business or control the operation, management or
policies of the sexually oriented business or legal
entity which operates the sexually oriented business,
App. 57‐58.
8
“Operator means any person, or any proprietor, shareholder, general
9
partner or limited partner who participates in the management or day‐to‐day
operations and/or control of the establishment.” § 2.3‐2(14) (2003) (emphasis in
original).
10 §§ 2.3‐4(3); 2.3‐5 (2003); see App. 140.
11 § 2.3‐4(d) (2007).
7
(2) ownership of a financial interest of thirty percent
(30%) or more of a business or of any class of voting
securities of a business, or
(3) holding an office (e.g., president, vice president,
secretary, treasurer, managing member, managing
director, etc.) in a legal entity which operates the
sexually oriented business.12
In short, the 2007 ordinance required SOBs to publicly post the
names of operators, managers, officers, and anyone owning at least
thirty percent of the business.
Soon after Milford passed the 2007 ordinance, and while the
earlier suit was still pending, Keepers brought a second lawsuit in
the District Court, this time challenging the new law.13 Around the
same time, Keepers changed owners. Regensberger had encountered
several setbacks, including a brief suspension of his liquor license in
2003 as a result of alleged misbehavior by dancers at Keepers, and
the loss of his liquor license in 2007 due to prostitution at another
establishment he owned. In 2008, he sold Keepers to his bartender,
12 Id. § 2.3‐2.
In its second suit, Keepers was joined as plaintiff by After Dark LLC
13
(“After Dark”), which does business as Romantix Adult Emporium. After Dark
sells sexually oriented merchandise and operates an adult “arcade.” App. 52, 54‐
55. Although Milford named it as a cross‐appellee, After Dark does not join
Keepers in this appeal.
8
Angela Silano, whom the record indicates to be the company’s
president and sole owner.14
In October 2008, the District Court consolidated Keepers’ first
and second lawsuits,15 and both parties subsequently moved for
summary judgment.16 In its motion, Keepers challenged the 2003 and
2007 ordinances on a number of constitutional grounds,17 and it also
asserted that the ordinances violated the zoning requirements of
Conn. Gen. Stat. § 8‐2. Most relevant for this appeal, Keepers argued
that the public‐posting requirements of the 2003 and 2007 ordinances
violated Keepers’ “owners’, employees’ and entertainers’ [First
Amendment] right to anonymity while engaging in expressive
14 App. 54‐55; see Regensberger Affidavit, Doc. 52‐6, at 1‐2; Affidavit of
Angela Silano, Doc. 52‐7, at 1 (“Silano Affidavit”). Keepers asserts for the first
time on appeal that Keepers’ current president is not Silano but Julia Kish.
Keepers Supp. Br. 4. This assertion has no effect on our decision. As a threshold
matter, our review is generally limited to “the original papers and exhibits filed in
the district court,” Fed. R. App. P. 10(a)(1), and we ordinarily do not consider
“material not included in the record on appeal,” see Loria v. Gorman, 306 F.3d 1271,
1280 n.2 (2d Cir. 2002). Even if “extraordinary circumstances” warranting an
exception to our usual practice were presented here, see Intʹl Bus. Machs. Corp. v.
Edelstein, 526 F.2d 37, 45 (2d Cir. 1975), treating Kish as Keepers’ president would
make no difference in our reasoning. See note 137, post.
15 App. at vii.
16 App. at viii‐ix.
Keepers invoked the First Amendment, the Fourth Amendment, the
17
Takings Clause of the Fifth Amendment, and the Ninth Amendment; it also
brought challenges based on facial and as‐applied vagueness and on deprivation
of due process under the Fourteenth Amendment. Keepers, 944 F. Supp. 2d at 137.
9
activities.”18 Specifically, Keepers urged the District Court to apply
so‐called intermediate scrutiny19 and strike down the public‐posting
requirements because they did not further a substantial
governmental interest.20
In response, Milford argued that it had “a substantial interest
in regulating those who control and operate sexually oriented
businesses.”21 Specifically, Milford contended that the public‐posting
requirement allows “City officials and law enforcement agents to
readily identify those who are responsible for the operation of a
18 Keepers Br. Summ. J., Doc. 51, at 60, 61.
19 “Intermediate scrutiny” applies to “regulations of expressive activity
that are not based on content.” Hobbs v. Cty. of Westchester, 397 F.3d 133, 149 (2d
Cir. 2005). A regulation survives intermediate scrutiny if it is “‘reasonable,’ [is]
‘narrowly tailored to serve a significant governmental interest,’ and ‘leave[s] open
ample alternative channels for communication of the information.’” Id. (quoting
Clark v. Cmty. for Creative Non‐Violence, 468 U.S. 288, 293 (1984)). “The narrow
tailoring requirement is satisfied so long as the regulation promotes a substantial
governmental interest that would be achieved less effectively absent the
regulation.” Id. (internal quotation marks and ellipsis omitted); see generally N.Y.
State Rifle & Pistol Ass’n, Inc. v. Cuomo, 804 F.3d 242, 257-58 (2d Cir. 2015) (noting
that the Supreme Court first introduced the notion of differing levels of scrutiny
in United States v. Carolene Products Co., 304 U.S. 144, 153 n.4 (1938)).
20 Keepers Br. Summ. J., Doc. 51, at 60. Elsewhere in its briefing before the
District Court, Keepers refused to “concede that any standard less than strict
constitutional scrutiny applies.” See id. at 22. But most of Keepers’ argument
“assume[d] that intermediate scrutiny is the correct standard,” and it never
argued that the posting requirement had to further a compelling governmental
interest, as would be true under so‐called strict scrutiny. See id. at 22‐23, 59‐60.
21 Keepers, 944 F. Supp. 2d at 173 (internal quotation marks omitted).
10
sexually oriented business for purposes of routine inspections and
criminal investigations.”22
On March 30, 2013, the District Court granted nearly all of
Milford’s motion for summary judgment and denied nearly all of
Keepers’ motion.23 Applying intermediate scrutiny, the Court agreed
that Milford had a “substantial interest” in readily knowing who was
responsible for operating an SOB, and that there was a “substantial
relation between the City’s interest” and the requirement that SOBs
display the names of their operators.24 The Court accordingly upheld
the 2003 ordinance’s posting requirement.
The Court went on to find, however, that the 2007 ordinance’s
posting requirement was “unconstitutionally broad.”25 Posting the
names of owners and officers not involved in the actual operation of
an SOB, the Court reasoned, lacked “a substantial relationship” to the
City’s asserted interest.26 Accordingly, the Court invalidated the 2007
22 Id.
23 The District Court granted partial summary judgment to each party in
an order of March 30, 2013, although the District Court did not enter a separate
judgment as required by Rule 58 of the Federal Rules of Civil Procedure. See Fed.
R. Civ. P. 58(a) (“Every judgment and amended judgment must be set out in a
separate document . . . .”).
24 Keepers, 944 F. Supp. 2d at 173.
25 Id. at 174.
Id. It is not entirely clear whether the District Court held
26
unconstitutional the 2007 ordinance’s requirement that the names of officers be
posted. Its opinion suggests as much. See id. at 174 (“[P]osting the names of
11
ordinance insofar as it “require[d] the posting of the names of
individuals who do not manage, operate or control the sexually
oriented business.”27
B. The Mello Affidavit
Keepers’ complaint alleged that various provisions of Chapter
2.3 were unconstitutionally vague. During discovery, Keepers sought
to substantiate that allegation by developing evidence that City
officials interpreted Chapter 2.3 in a manner inconsistent with its
individuals based merely on their status as a 30% shareholder or an officer not
involved in the management, operation or control of the sexually oriented
business is not substantially related to the City’s interest in enforcing the
ordinance. . . . Thus, the court concludes that § 2.3–5(c) of the 2007 ordinance is
unconstitutional to the extent that it requires the posting of the names of
individuals who do not manage, operate or control the sexually oriented
business.” (emphasis supplied)). But in its subsequent Order of March 28, 2014,
the Court declined to respond to Milford’s argument about posting the names of
officers “because the court did not find that requirement unconstitutional.” App.
151 n.1. In this appeal, Milford seems to have adopted the interpretation provided
by the March 28 Order—i.e., that the Court upheld its ordinance with respect to
officers—while Keepers seems to have supposed the opposite. We assume that the
District Court ruled as its opinion suggests, and that the Court struck down the
2007 public‐posting requirement with respect to shareholders and officers “not
involved in the management, operation or control of the sexually oriented
business.” Keepers, 944 F. Supp. 2d at 174. Nonetheless, our disposition of this
appeal would not differ if the District Court had actually upheld the 2007
ordinance insofar as it applied to Keepers’ officers.
27 Keepers, 944 F. Supp. 2d at 174.
12
plain meaning or in a manner that gave inadequate notice of the
conduct proscribed.28
On December 5, 2008, Keepers served a notice of deposition on
the City pursuant to Rule 30(b)(6) of the Federal Rules of Civil
Procedure.29 Rule 30(b)(6) permits a party to depose an organization,
including a governmental entity, by sending it a notice of deposition
“describ[ing] with reasonable particularity the matters for
examination.” After receiving such notice, the organization must
designate someone familiar with the matters described in the notice
to testify on its behalf. If the organizational deponent fails to comply
by “mak[ing] available such number of persons as will be able to give
complete, knowledgeable and binding answers on its behalf,” a court
may impose sanctions under Rule 37 of the Federal Rules of Civil
Procedure, “including the preclusion of evidence.”30
28 See Keepers Br. 2‐3; Keepers Reply Br. 6‐7.
29 Fed. R. Civ. P. 30(b)(6) provides in relevant part:
In its notice or subpoena, a party may name as the deponent a
public or private corporation, . . . a governmental agency, or other
entity and must describe with reasonable particularity the matters
for examination. The named organization must then designate one
or more officers, directors, or managing agents, or designate other
persons who consent to testify on its behalf; and it may set out the
matters on which each person designated will testify. . . . The
persons designated must testify about information known or
reasonably available to the organization.
Reilly v. Natwest Mkts. Grp. Inc., 181 F.3d 253, 268 (2d Cir. 1999) (internal
30
quotation marks omitted). Fed. R. Civ. P. 37(a)(3)(B)(ii) permits a party seeking
13
Keepers’ Rule 30(b)(6) notice of deposition listed thirty‐one
matters related to the drafting, passage, and enforcement of Chapter
2.3.31 Most relevant here, the notice identified as a matter for
deposition “[t]he definition and interpretation of any provisions of
Chapter 2.3 which are not specifically defined in that ordinance.”32
discovery to move for an order compelling designation if “a corporation or other
entity fails to make a designation under Rule 30(b)(6).” If a corporation fails to
comply with such an order, the court may impose the sanctions specified in Rule
37(b)(2)(A), which include
(i) directing that the matters embraced in the order or other
designated facts be taken as established for purposes of the action,
as the prevailing party claims;
(ii) prohibiting the disobedient party from supporting or opposing
designated claims or defenses, or from introducing designated
matters in evidence;
(iii) striking pleadings in whole or in part;
(iv) staying further proceedings until the order is obeyed;
(v) dismissing the action or proceeding in whole or in part;
(vi) rendering a default judgment against the disobedient party; or
(vii) treating as contempt of court the failure to obey any order
except an order to submit to a physical or mental examination.
Rule 37(d)(1)(A)(i) provides for similar sanctions if “a person designated under
Rule 30(b)(6) . . . fails, after being served with proper notice, to appear for that
person’s deposition.” “Instead of or in addition to these sanctions, the court must
require the party failing to act, the attorney advising that party, or both to pay the
reasonable expenses, including attorney’s fees, caused by the failure, unless the
failure was substantially justified or other circumstances make an award of
expenses unjust.” Fed. R. Civ. P. 37(d)(3).
31 App. 161‐66.
32 App. 162.
14
Neither Keepers’ complaint nor its notice of deposition identified
which provisions of Chapter 2.3 Keepers believed to be vague, and its
notice did not specifically identify which terms and provisions it
planned to address during the deposition.
The City responded to Keepers’ notice of deposition by
designating its former municipal attorney, Marilyn Lipton, who gave
deposition testimony for Milford on January 8, 2009. At the start of
the deposition, Milford’s attorney stated that, while Lipton had
authority pursuant to Rule 30(b)(6) to testify on Milford’s behalf, she
was “not authorized to contradict the ordinance text.”33
During her deposition, Lipton was unable to answer various
questions regarding the potential application and interpretation of
Chapter 2.3.34 She was unable, for instance, to explain whether an
“assistant manager” would fall within the 2007 ordinance’s definition
of someone having an “influential interest” in an SOB;35 whether the
City could revoke an SOB employee’s license for failing to stop
another employee from “doing something wrong”;36 and whether
mandated “buffer zones” between dancers and patrons would be
33 App. 172.
See Keepers, 944 F. Supp. 2d at 158 (noting that Keepers identified 33
34
instances in which Lipton said she was uncertain or unable to answer various
questions).
35 App. 223
36 App. 252‐53.
15
measured from “front of body [to] front of body” or based on the
distance between other body parts.37
In its motion for summary judgment in August 2009, Keepers
identified several provisions of Chapter 2.3 that it argued were
unconstitutionally vague, relying on Lipton’s deposition for
support.38 In its November 2009 response to Keepers’ motion, Milford
filed an affidavit by Chief of Police Keith Mello (the “Mello
Affidavit”), who was primarily responsible for administering the
ordinance. The Mello Affidavit offered “additional guidelines
regarding the interpretation and enforcement of Chapter 2.3,”39 with
particular focus on those provisions that Keepers’ motion had
identified as vague.40
In December 2009, Keepers moved to strike the Mello
Affidavit, arguing that it impermissibly contradicted Lipton’s
deposition testimony. Keepers also moved for discovery sanctions.
The District Court denied Keepers’ motions and relied on the Mello
App. 264. Chapter 2.3 requires six‐foot “buffer zones” between patrons
37
and dancers. See § 2.3‐17(b) (2007).
38 Keepers, 944 F. Supp. 2d at 158 (noting Keepers’ argument that Lipton
“had little to no understanding as to how the words, phrases, and provisions
contained within the ordinance are to be applied and/or enforced” (quoting
Keepers Br. Summ. J., Doc. 51, at 11)).
39 App. 313.
Keepers had deposed Mello in January 2009 as an individual witness,
40
but not pursuant to Rule 30(b)(6). Dep. of Keith Mello, Doc. 55‐3, at 3.
16
Affidavit in awarding summary judgment to the City on Keepers’
vagueness challenge.41 The District Court concluded that “[i]t would
be unfair to ignore” the Mello Affidavit and to rely solely on the
Lipton Deposition, “in which the plaintiffs succeeded in surprising a
deponent not charged with enforcement of the ordinance with
hypotheticals that served to ‘stump’ her.”42
C. The Appeal
Both parties appealed the District Court’s partial grant and
partial denial of summary judgment. Keepers appealed the denial of
its motion to strike the Mello Affidavit and asked that the case be
remanded for reconsideration of its vagueness challenge. Milford
cross‐appealed the District Court’s judgment that the 2007
ordinance’s public‐posting requirement violates the First
Amendment with respect to officers and shareholders not involved in
the operation of an SOB.
In an Order entered on October 2, 2015, we identified nostra
sponte two issues not addressed by the parties or the District Court:
whether Keepers has “standing” to challenge the public‐posting
requirements; and, if Keepers does have standing, whether the
public‐posting requirements violate the First Amendment’s
41 App. 46‐47 (Order of Sept. 28, 2010).
42 Keepers, 944 F. Supp. 2d at 159.
17
prohibition of “compelled speech.”43 We accordingly asked the
parties to file supplemental letter briefs addressing these questions.
II. DISCUSSION
A. The District Court’s Consideration of the Mello Affidavit
We first address whether the District Court erred in
considering the Mello Affidavit when awarding summary judgment
to Milford with respect to Keepers’ vagueness challenge.
We review a district court’s evidentiary and discovery rulings
for “abuse of discretion.”44 “A district court has abused its discretion
if it based its ruling on an erroneous view of the law or on a clearly
erroneous assessment of the evidence, or rendered a decision that
cannot be located within the range of permissible decisions.”45
On appeal, Keepers challenges the District Court’s decision to
allow Milford to supplement the deposition testimony of its Rule
43 The District Court considered Keepers’ standing with respect to several
of its claims, including its vagueness challenges, id. at 151‐53, First Amendment
overbreadth challenge, id. at 160, and various challenges to Chapter 2.3’s criminal
disability provisions, id. at 162‐63. The District Court did not, however, consider
standing with respect to the public‐posting requirement.
44 In re Agent Orange Prod. Liab. Litig., 517 F.3d 76, 102 (2d Cir. 2008); Arlio
v. Lively, 474 F.3d 46, 51 (2d Cir. 2007); see also In re City of New York, 607 F.3d 923,
943 n.21 (2d Cir. 2010) (explaining that “abuse of discretion” is a nonpejorative
term of art).
In re Sims, 534 F.3d 117, 132 (2d Cir. 2008) (internal quotation marks,
45
alteration, and citation omitted).
18
30(b)(6) witness with an affidavit from another witness. “Because the
deponent’s answers constitute the official testimony of the
governmental entity itself,” Keepers argues, “the government may
not later contradict” the deponent’s testimony “with the affidavit of
another official.”46 As a result, it asserts, the District Court should
have refused to consider the Mello Affidavit.
Milford offers several counterarguments. First, it argues that
even if a deponent’s factual conclusions bind an organizational
deponent, its legal conclusions do not. Second, Milford asserts that
Keepers’ notice of deposition failed to comply with Rule 30(b)(6)’s
requirement that the deposing party “describe with reasonable
particularity the matters for examination,” and that Milford was
therefore entitled to supplement its deposition testimony on subjects
about which it had received inadequate notice. Finally, Milford
argues that even if the District Court erred in considering the
affidavit, any error was harmless, because the Court would have
reached the same conclusion in any event.
We affirm the District Court’s decision to consider the Mello
Affidavit for two reasons. First, we agree with Milford that a Rule
30(b)(6) deponent may supplement or amend legal interpretations
offered by its designated witness. Second, even if the District Court
“abused its discretion” in considering the Mello Affidavit, any error
was harmless.
46 Keepers Br. 3.
19
1. The “Binding” Nature of Rule 30(b)(6) Testimony
Keepers misunderstands how testimony pursuant to Rule
30(b)(6) binds a party. Keepers rightly notes that an organization’s
deposition testimony is “binding” in the sense that whatever its
deponent says can be used against the organization.47 But Rule
30(b)(6) testimony is not “binding” in the sense that it precludes the
deponent from correcting, explaining, or supplementing its
statements.48 Nothing in the text of the Rule or in the Advisory
Committee notes indicates that the Rule is meant to bind a corporate
party irrevocably to whatever its designee happens to recollect
during her testimony.49 Of course, a party whose testimony “evolves”
risks its credibility, but that does not mean it has violated the Federal
Rules of Civil Procedure.50
Indeed, Keepers itself came to a similar conclusion earlier in
this litigation. During the Lipton Deposition, Milford objected to
questions requiring Lipton to give precise answers based on 2,000
pages of evidence. Its counsel emphasized that if Lipton answered a
question with “I don’t know,” she should be taken to mean, “I don’t
47 See Reilly, 181 F.3d at 268.
See 8A Charles Alan Wright & Arthur R. Miller, Federal Practice &
48
Procedure § 2103 (3d ed. 2015); 7‐30 James Wm. Moore et al., Moore’s Federal
Practice § 30.25 (3d ed. 2015).
49 See A.I. Credit Corp. v. Legion Ins. Co., 265 F.3d 630, 637 (7th Cir. 2001).
50 See R & B Appliance Parts, Inc. v. Amana Co., 258 F.3d 783, 786‐87 (8th Cir.
2001).
20
know without reviewing all 2,000 pages right now,” and that such an
answer should “not preclude the city’s reliance on anything in the
record at summary judgment.”51 The attorney for Keepers agreed: “I
am sure that if there’s something that is in [the record] that is
responsive to any arguments that we’re going to be making, you will
pull it out in response to our motion for summary judgment.”52
Accordingly, the parties proceeded under the assumption that
Lipton’s recollection did not limit what evidence Milford could
present.
Although the parties’ exchange focused on Milford’s right to
supply additional facts, a Rule 30(b)(6) deponent may also amend and
expand its legal conclusions. Courts have held repeatedly that a party
is “entitled to produce contrary evidence” that contradicts legal
interpretations offered during a deposition.53 The statements to
which Keepers seeks to bind Milford are primarily interpretations of
law—whether or how Chapter 2.3 applies to various situations—
rather than facts concerning the drafting or history of the ordinance.
The rule that organizational deponents may supplement their Rule
30(b)(6) testimony thus applies with special force in the present case.
51 App. 230.
52 Id.
53 AstenJohnson, Inc. v. Columbia Cas. Co., 562 F.3d 213, 229 n.9 (3d Cir.
2009); see R & B Appliance, 258 F.3d at 786‐87.
21
Some deponents will, of course, try to abuse Rule 30(b)(6) by
intentionally offering misleading or incomplete responses, then
seeking to “correct” them by offering new evidence after discovery.
Appropriate remedies are available for such situations. For instance,
as Keepers points out, the “sham‐affidavit rule” prevents a party
from manufacturing an issue of fact “by submitting an affidavit in
opposition to a summary judgment motion that, by omission or
addition, contradicts the affiant’s previous deposition testimony.”54
But that rule has no relevance here. A subsequent witness does not
“contradict” a Rule 30(b)(6) deponent when that witness offers
information about which the deponent had disclaimed knowledge or
expressed uncertainty.55 With one minor exception,56 the Mello
Affidavit did not “contradict” Lipton’s earlier testimony but instead
filled in its gaps.
Rule 37 also empowers district courts to correct abuses in the
deposition process. If a deponent fails to satisfy Rule 30(b)(6) by
refusing to designate a witness or producing an unprepared witness,
the court may order sanctions, including the preclusion of evidence.57
Crawford v. Franklin Credit Mgmt. Corp., 758 F.3d 473, 482 (2d Cir. 2014)
54
(internal quotation marks omitted).
55 See id.
This exception involved inconsistent legal conclusions about the
56
meaning of the term “regularly” as it is used in the 2007 ordinance, rather than
contradictory statements of fact. Keepers Br. 8, ¶ 1; App. 197, 313.
Reilly, 181 F.3d at 268; see also Black Horse Lane Assocs. v. Dow Chem. Corp.,
57
228 F.3d 275, 304 (3d Cir. 2000) (“[W]e hold that when a witness is designated by a
22
But we cannot conclude that such sanctions would be appropriate
here, much less that the District Court “abused its discretion” by
failing to employ them against Milford.58
Keepers identifies no authority that cuts against these settled
principles. Indeed, the contrast between the instant case and Reilly v.
Natwest Markets Group Inc., the principal case on which Keepers
relies, is illuminating.59 In Reilly, a corporate defendant was served
with a Rule 30(b)(6) notice asking it to produce representatives
familiar with the work performed by the plaintiff, its former
employee. In response, the defendant produced a single witness,
“despite [the plaintiff’s] complaints that [the witness] was not
sufficiently knowledgeable,”60 in what was apparently an effort to
frustrate the plaintiff’s discovery.61 As a result, the district court
refused to allow two other witnesses for the defendant—whom the
defendant had declined to produce for its Rule 30(b)(6) deposition—
to testify on the same subject at trial.
corporate party to speak on its behalf pursuant to Rule 30(b)(6), producing an
unprepared witness is tantamount to a failure to appear that is sanctionable under
Rule 37(d).” (alteration and internal quotation marks omitted)); Kyoei Fire &
Marine Ins. v. M/V Mar. Antalya, 248 F.R.D. 126, 152 (S.D.N.Y. 2007) (same).
Keepers moved for sanctions before the District Court, but on appeal,
58
the only “sanction” it seeks is the striking of the affidavit. See Keepers Br. 12.
59 181 F.3d 253 (2d Cir. 1999).
60 Id. at 268.
61 See id. at 268‐69.
23
This case differs from Reilly in two important respects. First,
unlike the corporate defendant in Reilly, Milford produced as its
witness the person it considered to be most familiar with the subject
matter at issue.62 Although Lipton’s testimony may have been
inadequate, the District Court found that that inadequacy flowed not
from the kind of willful obstruction apparent in Reilly but rather from
Keepers’ decision to “surpris[e]” Lipton63 with “various hypothetical
scenarios” not identified in the notice of deposition.64 Second, the
defendant in Reilly wanted to frustrate discovery, but Milford had
every incentive to be as forthcoming as possible in order to defeat
Keepers’ claim of vagueness. Indeed, forcing Lipton to answer “I
don’t know” was precisely what Keepers hoped to achieve.65
As the District Court recognized, the process by which Milford
ultimately answered Keepers’ questions was not “a route that is to be
preferred.”66 Ideally—perhaps after receiving more particularized
notice of what Keepers wanted to know—Lipton herself would have
been prepared to offer more precise answers during her deposition. If
Milford believed that Keepers’ Rule 30(b)(6) notice failed to describe
the matters for deposition with adequate particularity, Milford could
62 See Milford Br. 4.
63 Keepers, 944 F. Supp. 2d at 159.
64 App. 46 (Order of Sept. 28, 2010).
65 See Keepers Br. 8‐11.
66 App. 47 (Order of Sept. 28, 2010).
24
have objected prior to the deposition. Alternatively, Keepers might
have requested an additional Rule 30(b)(6) deposition, perhaps of
Mello. But the “management of discovery and trial” belongs “to the
sound discretion of the district court.”67 We have no trouble
concluding that the District Court did not “abuse” that discretion in
admitting the Mello Affidavit.
2. Harmless Error
Even if the District Court erred by considering the Mello
Affidavit, that error was harmless, because excluding the affidavit
would not have affected the outcome of the case.68
The District Court considered the Lipton Deposition and Mello
Affidavit in connection with its evaluation of Keepers’ argument that
certain provisions of Chapter 2.3 were unconstitutionally vague. An
ordinance can be unconstitutionally vague “for either of two
independent reasons”: (1) “if it fails to provide people of ordinary
intelligence a reasonable opportunity to understand what conduct it
prohibits,”69 or (2) if it “does not provide explicit standards for those
who apply it.”70
67 Willey v. Kirkpatrick, 801 F.3d 51, 72 (2d Cir. 2015).
68 See Fed. R. Civ. P. 61; Shinseki v. Sanders, 556 U.S. 396, 407 (2009).
VIP of Berlin, LLC v. Town of Berlin, 593 F.3d 179, 186 (2d Cir. 2010)
69
(quoting Hill v. Colorado, 530 U.S. 703, 732 (2000)).
70 Id. at 191 (internal quotation marks and alteration omitted).
25
As the District Court noted, a court evaluating a challenge for
vagueness must “begin[ ] with the text of the ordinance” itself.71
Based on its reading of Chapter 2.3—without relying on the Lipton
Deposition or the Mello Affidavit—the District Court concluded
“that the ordinance here is clear on its face” and thus satisfied the
first prong of the vagueness analysis.72
In evaluating the second prong, the District Court again
focused, as it should have, primarily on the ordinance’s plain
meaning. The Court also considered whether Milford officials
interpreted Chapter 2.3 in a manner “consistent with” its text.73 The
Court concluded that the ordinance itself gave sufficiently clear
guidance and that the officials charged with enforcing the ordinance
had adopted an interpretation consistent with its text.74 Accordingly,
the Court concluded that Chapter 2.3 also satisfied the second prong
of the vagueness analysis.
The Court’s findings would not have changed had the Court
excluded the Mello Affidavit. The Court concluded that the
ordinance was clear on its face without relying on any extrinsic
evidence at all. Had the Court relied solely on the Lipton Deposition
in deciding whether the ordinance gave sufficient guidance to law
71 Id. at 187; see Keepers, 944 F. Supp. 2d at 151.
72 Keepers, 944 F. Supp. 2d at 158.
73 See VIP of Berlin, 593 F.3d at 192.
74 Keepers, 944 F. Supp. 2d at 158‐59.
26
enforcement, the most the Court could have concluded was that
Milford lacked an “official position” on how to apply several
provisions of Chapter 2.3 to various hypothetical situations.75 But
that conclusion alone would not have supported a finding of
vagueness. When the text of an ordinance is sufficiently clear to
satisfy the Due Process Clause, a municipal official’s inability to
supply precise answers regarding its hypothetical application is
insufficient to render that ordinance unconstitutionally vague.76 The
Mello Affidavit thus had no effect on the District Court’s ultimate
conclusion. Accordingly, the judgment of the District Court in favor
of Milford with respect to Keepers’ vagueness challenge is
AFFIRMED.
B. The Public‐Posting Requirement
We now turn to whether Milford’s public‐posting
requirements violate the First Amendment. Keepers does not appeal
the District Court’s judgment insofar as it upheld the 2003 public‐
posting requirement and part of the 2007 requirement. Milford,
however, urges us to reverse the District Court’s judgment insofar as
it invalidated part of the 2007 ordinance. Milford argues that the
District Court erred in assuming that mere ownership of an SOB is
expressive conduct protected by the First Amendment. It argues in
the alternative that even if owning an SOB qualifies as expressive
75 Id. at 158.
76 See VIP of Berlin, 593 F.3d at 191.
27
conduct, the posting requirement should nevertheless survive
because it is narrowly tailored and advances an important
governmental interest.
We need not—indeed, we cannot—resolve either issue today.
Undertaking our constitutional duty to assure ourselves that this case
is justiciable, we have determined that three distinct jurisdictional
barriers preclude Keepers from challenging the public‐posting
requirements. We conclude that Keepers lacked both (1) prudential
and (2) constitutional standing to challenge the public‐posting
requirements based on third parties’ rights to anonymous expression,
and (3) even if Keepers had standing below based on its right against
compelled speech, a justiciable controversy no longer exists at this
stage of the litigation.77 Accordingly, we VACATE the judgment of
the District Court with respect to the 2003 and 2007 public‐posting
requirements and REMAND with instructions to dismiss Keepers’
challenge to those requirements for lack of subject matter jurisdiction.
1. Whose First Amendment Rights Are at Stake?
Article III of the U.S. Constitution limits the jurisdiction of
federal courts to “Cases” or “Controversies.”78 “One element of the
77 Courts may consider prudential standing, constitutional standing, and
mootness in any order. See Arizonans for Official English v. Arizona, 520 U.S. 43, 66
(1997); Hillside Metro Assocs., LLC v. JPMorgan Chase Bank, Nat’l Assʹn, 747 F.3d 44,
48 (2d Cir. 2014), cert. denied, 135 S. Ct. 1399 (2015).
U.S. Const. art. III, § 2 (“The judicial Power [of the United States] shall
78
extend to all Cases, in Law and Equity, arising under this Constitution, the Laws
28
case‐or‐controversy requirement is that plaintiffs must establish that
they have standing to sue.”79 To establish constitutional standing, a
plaintiff must demonstrate (1) that it has “suffered an injury in fact,”
which is (2) “fairly traceable to the challenged action of the
defendant,” and (3) “likely” to “be redressed by a favorable
decision.”80 In addition to these core constitutional requirements,
litigants must also satisfy “prudential standing,” which “embodies
‘judicially self‐imposed limits on the exercise of federal
jurisdiction.’”81 Prudential standing includes, inter alia, “the general
prohibition on a litigant’s raising another person’s legal rights” and
“the rule barring adjudication of generalized grievances more
appropriately addressed in the representative branches [of
government].”82 “The party invoking federal jurisdiction bears the
of the United States, and Treaties made, or which shall be made, under their
Authority;—to all Cases affecting Ambassadors, other public Ministers and
Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to Controversies
to which the United States shall be a Party;—to Controversies between two or
more States;— between a State and Citizens of another State,—between Citizens
of different States,—between Citizens of the same State claiming Lands under
Grants of different States, and between a State, or the Citizens thereof, and foreign
States, Citizens or Subjects.”); see Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138,
1146 (2013).
79 Clapper, 133 S. Ct. at 1146 (internal quotation marks omitted).
Hedges v. Obama, 724 F.3d 170, 188 (2d Cir. 2013) (quoting Lujan v.
80
Defenders of Wildlife, 504 U.S. 555, 560‐61 (1992)).
Selevan v. N.Y. Thruway Auth., 584 F.3d 82, 91 (2d Cir. 2009) (quoting Elk
81
Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 11 (2004), abrogated on other grounds
by Lexmark Int’l, Inc. v. Static Control Components, Inc., 134 S. Ct. 1377 (2014)).
29
burden of establishing” prudential and constitutional standing,83 but
courts may raise the issue sua sponte, including for the first time on
appeal.84
One purpose of standing doctrine is to ensure that “the
plaintiff at issue is the appropriate plaintiff to bring a claim.”85 It
matters, in other words, whose rights a plaintiff asserts. The District
Court assumed that the plaintiffs before it—a corporation and a
limited liability company—were asserting “their First Amendment
right to engage in speech anonymously.”86 But that would have been
an odd claim indeed for a business like Keepers, which markets its
services to “the consenting adult public.”87 Corporations sometimes
seek to hide their identities,88 but not usually from their patrons.
A closer examination of Keepers’ filings reveals that the
company has asserted not its own right to remain anonymous but
82 Elk Grove, 542 U.S. at 12 (internal quotation marks omitted).
See Lujan, 504 U.S. at 561; Rajamin v. Deutsche Bank Nat’l Tr. Co., 757 F.3d
83
79, 84 (2d Cir. 2014).
Cent. States Se. & Sw. Areas Health & Welfare Fund v. Merck‐Medco
84
Managed Care, L.L.C., 433 F.3d 181, 198 (2d Cir. 2005).
85 Lerner v. Fleet Bank, N.A., 318 F.3d 113, 126 (2d Cir. 2003).
86 Keepers, 944 F. Supp. 2d at 172 (emphasis supplied).
87 Id. at 151 (emphasis supplied) (internal quotation marks omitted).
See Citizens United v. Fed. Election Commʹn, 558 U.S. 310, 366‐67 (2010)
88
(describing a corporation’s challenge to a disclosure requirement).
30
that of its officers, shareholders, and other third parties. Before the
District Court, for instance, Keepers argued that Milford’s public‐
posting requirements “impermissibly and severely infringe upon the
owners’, employees’ and entertainers’ right to anonymity while
engaging in expressive activities.”89 In its appellate brief, Keepers
again stresses the right of “[o]wners of adult businesses” “to fund
sexually explicit expression” anonymously.90 Throughout its
argument, Keepers refers either to an impersonal “right to
anonymous free expression” or, more often, to the rights of
“[p]assive [o]wners,”91 “shareholders,” and “officers.”92 Keepers’
brief even converts the District Court’s focus on Keepers’
constitutional rights into a holding about the rights of “partial owners
of sexually oriented businesses.”93 In short, Keepers has consistently
asserted not its own right to anonymous expression—which would
make little sense for a business that markets its services to the
public—but the rights of third parties.94
89 Keepers Br. Summ. J., Doc. 51, at 61 (emphasis supplied).
90 Keepers Reply Br. 8 (emphasis supplied)
91 Id.
92 Id. at 10.
Id. at 11 (emphasis supplied); cf. Keepers, 944 F. Supp. 2d at 172.
93
Similarly, Keepers describes the City as arguing against the right of “business
owners, officers, and stakeholders” to “engage in anonymous expression . . . by
maintaining an ownership interest in an adult business.” Keepers Reply Br. 8.
In its supplemental brief, Keepers asserts for the first time that it
94
challenges the public‐posting requirements “on both its own behalf and on behalf
31
Therefore, to the extent that Keepers challenges the public‐
posting requirements based on a First Amendment right of
anonymous expression, its challenge hinges on Keepers’
constitutional and prudential standing to assert the rights of its
owners and officers. Corporations, like other organizations,
sometimes have standing to assert the rights of third parties.95 But
because a “corporation is a distinct legal entity” from its shareholders
of” affected third parties. Keepers Supp. Br. 2. But even in that brief, Keepers
nowhere asserts its own right to anonymous expression, relying instead on its right to
sue on behalf of its owners and officers or on other rights—distinct from
anonymity—allegedly possessed by Keepers itself.
95 See note 107, post. A corporation’s standing to assert the rights of third
parties should not be confused with its standing to assert claims on its own behalf,
even though those claims may ultimately benefit its owners, officers, or
employees. See Mid‐Hudson Catskill Rural Migrant Ministry, Inc. v. Fine Host Corp.,
418 F.3d 168, 174 (2d Cir. 2005) (Sotomayor, J.); cf. Burwell v. Hobby Lobby Stores,
Inc., 134 S. Ct. 2751, 2768 (2014) (“An established body of law specifies the rights
and obligations of the people (including shareholders, officers, and employees)
who are associated with a corporation in one way or another. When rights,
whether constitutional or statutory, are extended to corporations, the purpose is
to protect the rights of these people.” (emphasis in original)); Doctor Johnʹs, Inc. v.
City of Roy, 465 F.3d 1150, 1156 (10th Cir. 2006) (finding that a sexually oriented
business had standing to challenge an ordinance that directly harmed the
business itself).
32
and officers,96 courts are not permitted to simply assume its standing
to assert the rights of those third parties.97
2. Prudential Standing
We begin by considering the “prudential standing rule” that
“normally bars litigants from asserting the rights or legal interests of
others in order to obtain relief from injury to themselves.”98
Keepers argues that prudential standing concerns are
irrelevant here because “[c]ourts have generally dispensed with the
rule that a party [must] assert its own legal rights and not the rights
of third parties when First Amendment free speech rights are at
stake.”99 Keepers misunderstands the nature of that dispensation.
Courts have relaxed prudential standing requirements to permit
96 Daimler AG v. Bauman, 134 S. Ct. 746, 759 n.13 (2014) (internal quotation
marks omitted); see also Dole Food Co. v. Patrickson, 538 U.S. 468, 474 (2003) (“A
basic tenet of American corporate law is that the corporation and its shareholders
are distinct entities.”).
See Mid‐Hudson Catskill Rural Migrant Ministry, 418 F.3d at 174
97
(indicating that plaintiffs bear the burden of demonstrating third‐party standing).
Keepers cites Genusa v. City of Peoria, 619 F.2d 1203, 1216 (7th Cir. 1980), for
the proposition that a “corporation . . . ha[s] standing to challenge disclosure
requirements that applied to officers, directors, and stockholders of a corporate
licensing applicant.” Keepers Supp. Br. 3. Genusa, however, involved a suit
brought by “owners of and employees in” a sexually oriented business, not by the
business itself. See Genusa, 619 F.2d at 1208.
98 Rajamin, 757 F.3d at 86 (quoting Warth v. Seldin, 422 U.S. 490, 509 (1975)).
99 See Keepers Supp. Br. 3.
33
challenges based on First Amendment overbreadth.100 Keepers,
however, has not advanced such a challenge here. Although Keepers’
supplemental brief repeatedly characterizes its claim as one of
“overbreadth,” that word appears neither in its principal brief nor in
the section of its summary judgment brief that addresses the public‐
posting requirement.101
Keepers previously omitted mentioning overbreadth for a
good reason: it has based its challenge on the “[q]uite different” basis
of third‐party (or jus tertii) standing.102 In an overbreadth challenge, a
plaintiff “claims that although a statute did not violate his or her First
See, e.g., Secʹy of State of Md. v. Joseph H. Munson Co., 467 U.S. 947, 957‐58
100
(1984); Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973).
In contrast, Keepers attacked as overbroad the prohibition on minors’
101
entering SOBs, Keepers Br. Summ. J., Doc. 51, at 40‐43; the requirement of a
“buffer zone” between customers and “semi‐nude” “employees,” id. at 51‐52, and
the “no‐touch” provision, id. at 57.
Although the District Court referred to the 2007 ordinance as
“unconstitutionally broad,” context shows that the Court was referring to the
absence of “a substantial relationship between [Milford’s asserted] governmental
interest and the information required to be posted”—i.e., the ordinance’s failure to
satisfy intermediate scrutiny—and not to the constitutional doctrine of
overbreadth as relevant for standing purposes. See Keepers, 944 F. Supp. 2d at 174.
As noted above, the District Court never considered Keepers’ standing to
challenge the public‐posting requirements; Keepers had not advanced an
overbreadth argument; and the District Court invoked none of the typical
overbreadth standards or doctrines in reaching its decision, see Milford Br. 36‐37.
See Richard H. Fallon, Jr., John F. Manning, Daniel J. Meltzer & David L.
102
Shapiro, Hart & Wechsler’s The Federal Courts and the Federal System 164 (7th ed.
2015) (internal quotation marks omitted) (“Hart & Wechsler”).
34
Amendment rights, it would violate the First Amendment rights of
hypothetical third parties if applied to them.”103 In contrast, a case
based on third‐party standing involves a plaintiff’s claim “that a
single application of a law both injures him and impinges upon the
constitutional rights of third persons.”104 Keepers’ challenge is plainly
of the latter variety.105
“Typically, a plaintiff who asserts the claims of a third party
can obtain standing by establishing (1) a close relationship to the
injured party and (2) a barrier to the injured party’s ability to assert
its own interests.”106 Even if we assume that Keepers and the relevant
third parties have a sufficiently close relationship to satisfy the first
prong of this test,107 Keepers has not shown, or even alleged, that its
Farrell v. Burke, 449 F.3d 470, 498 (2d Cir. 2006).
103
Hart & Wechsler 164 (internal quotation marks omitted).
104
See, e.g., Keepers Supp. Br. 2 (“The Milford ordinance therefore injures
105
Keepers directly . . . .”).
Smith v. Hogan, 794 F.3d 249, 255 (2d Cir. 2015) (internal quotation
106
marks omitted).
See, e.g., Int’l Harvester Co. v. Wisc. Dep’t of Taxation, 322 U.S. 435, 440
107
(1944) (finding that a corporation had standing to present its stockholders’
constitutional objections to a tax); Commack Self‐Serv. Kosher Meats, Inc. v. Hooker,
680 F.3d 194, 200 (2d Cir. 2012) (allowing a kosher delicatessen and butcher shop
to join with its “shareholders, directors, and officers” in asserting free exercise
claims); Stormans, Inc. v. Selecky, 586 F.3d 1109, 1120 (9th Cir. 2009) (holding that a
corporation has standing to assert the free exercise rights of its owners); United
States v. Westinghouse Elec. Corp., 638 F.2d 570, 574 (3d Cir. 1980) (finding that an
employer has standing to assert the privacy interests of its employees). But see
Polaroid Corp. v. Disney, 862 F.2d 987, 1000 & n.8 (3d Cir. 1988) (finding that a
35
owners and officers would have any difficulty asserting their own
interests. As a result, it has failed to offer any reason for us to lift the
prudential bar against asserting the rights of others.
In reaching this conclusion, we emphasize the limited nature of
our holding, which reflects the absence of any suggestion in the briefs
or the record that Keepers’ owners or officers would face any
difficulty in defending their own interests. We recognize that
litigants seeking to protect their anonymity may have strong reasons
for suing through a third‐party organization rather than in their own
names.108 But those reasons do not apply here. Keepers’ owners and
officers have already identified themselves publicly during the
course of this litigation, and we have seen no evidence that they
would face “threats, harassment, or reprisals” from bringing a case in
their own names.109 On the present record, then, Keepers has offered
no reason to depart from the normal rule that a litigant must assert
its own rights, not those of a third party.
corporation lacks third‐party standing to challenge a tender offer on behalf of its
shareholders).
108 See NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 459 (1958) (noting
that requiring a litigant to defend her own right to anonymity would “result in
nullification of the right at the very moment of its assertion”).
See John Doe No. 1 v. Reed, 561 U.S. 186, 201 (2010) (internal quotation
109
marks omitted).
36
3. Constitutional Standing
Even if we had reason to relax the prudential requirements of
third‐party standing, Keepers would still lack constitutional
standing, because it has not satisfied Article III’s injury‐in‐fact
requirement.
A litigant may assert the rights of others only if the litigant
itself satisfies Article III’s requirements of injury‐in‐fact, causation,
and redressability.110 The injury‐in‐fact requirement demands not
only the existence of a legally cognizable injury, but also that the
plaintiff itself be “among the injured.”111 In addition, “a plaintiff must
demonstrate standing for each claim he seeks to press and for each
form of relief that is sought.”112 In other words, Keepers’ undisputed
standing to challenge Chapter 2.3 based on vagueness does not
confer standing to challenge the public‐posting requirements based
on its officers’ and owners’ rights of anonymous expression.113
110 See Port Washington Teachers’ Ass’n v. Bd. of Educ. of Port Washington
Union Free Sch. Dist., 478 F.3d 494, 498 (2d Cir. 2007); see also Hedges, 724 F.3d at
204 (noting that a plaintiff who challenges a law based on First Amendment
overbreadth must still demonstrate that it suffered an injury‐in‐fact sufficient for
Article III standing).
Lujan, 504 U.S. at 563 (internal quotation marks omitted).
111
Davis v. Fed. Election Commʹn, 554 U.S. 724, 734 (2008) (internal quotation
112
marks omitted).
113 Neither does its standing to challenge the public‐posting requirement as
a violation of its right against compelled speech, a subject we address in Section
II.B.4, post.
37
In its motion for summary judgment, Keepers alleged several
ways in which Milford’s ordinances have harmed its constitutional
and economic interests. But neither in its appellate briefs nor before
the District Court has Keepers explained how the alleged
infringement of its officers’ and owners’ anonymity rights has caused
it any harm. The closest it comes to doing so is through its suggestion
that the public‐posting requirements might “chill” Keepers’
expression.114 But “purely conjectural” assertions of a potential
“chill” are insufficient,115 and Keepers offers no “objective evidence to
substantiate [its] claim that the challenged regulation has deterred [it]
from engaging in protected activity.”116
Nor is Keepers able to claim constitutional standing based on
its assertion that the public‐posting requirement “injures Keepers
directly by requiring it to participate in violating its owners’ right of
privacy.”117 Even if Keepers’ statement were factually true,118 it
See Keepers Br. Summ. J., Doc. 51, at 59, 62; see also Keepers Supp. Br. 2
114
(“The injury Keepers seeks to redress on its own behalf is the chilling effect on
corporate expression that is exerted by the requirement that the individuals who
own the business be publicly outed.”).
Intʹl Action Ctr. v. City of New York, 587 F.3d 521, 529 (2d Cir. 2009); see
115
also Latino Officers Assʹn v. Safir, 170 F.3d 167, 170 (2d Cir. 1999) (“Allegations of a
subjective chill of First Amendment rights are not an adequate substitute for a
claim of specific present objective harm or a threat of specific future harm.”
(internal quotation marks and alteration omitted)).
Latino Officers Assʹn, 170 F.3d at 170 (internal quotation marks and
116
alteration omitted).
Keepers Supp. Br. 2.
117
38
would fail to give Keepers the kind of “particularized stake in the
litigation” needed to satisfy Article III.119 Keepers asserts, in essence,
that it is especially offended by Milford’s alleged violation of the First
Amendment. But mere discomfort occasioned by an asserted
constitutional violation, no matter how sharply felt, is insufficient to
confer standing.120
It is not difficult to imagine situations in which a burden on the
First Amendment rights of a firm’s owners, officers, or employees
might generate a legally cognizable injury to the firm itself.121
Standing, however, “cannot be inferred, but must affirmatively
appear in the record,”122 and it is Keepers’ burden to demonstrate
As we discuss in Section II.B.4, post, that part of Chapter 2.3 at issue on
118
appeal has no demonstrated effect on the anonymity of any individual.
119 Lance v. Coffman, 549 U.S. 437, 442 (2007).
120 See Valley Forge Christian Coll. v. Americans United for Separation of Church
& State, Inc., 454 U.S. 464, 485‐86 (1982) (“[S]tanding is not measured by the
intensity of the litigant’s interest or the fervor of his advocacy.”); cf. Linda R.S. v.
Richard D., 410 U.S. 614, 619 (1973) (“[A] private citizen lacks a judicially
cognizable interest in the prosecution or nonprosecution of another.”); Dunnet Bay
Const. Co. v. Borggren, 799 F.3d 676, 693‐94 (7th Cir. 2015) (finding no standing
based on the plaintiff’s allegedly being “forced to participate in a discriminatory
scheme”); Thomas v. Mundell, 572 F.3d 756, 761 (9th Cir. 2009) (“[A] public officialʹs
personal dilemma in performing official duties that he perceives to be
unconstitutional does not generate standing.” (internal quotation marks omitted)).
121 See note 107, ante.
Gully v. Nat’l Credit Union Admin. Bd., 341 F.3d 155, 161 (2d Cir. 2003)
122
(internal quotation marks omitted).
39
that the alleged infringement of third parties’ constitutional rights
has injured Keepers itself.123 Keepers has not met that burden here.
4. Mootness on Appeal
In its supplemental brief, Keepers argues for the first time in
this litigation that the public‐posting requirement violates its First
Amendment “right to be free from government‐compelled
expression.”124 According to Keepers, even if it lacked standing
below to pursue a claim based on the right to anonymous expression,
we can nonetheless uphold the District Court’s judgment on this
alternative ground. Assuming arguendo that Keepers did not forfeit
this argument by failing to present it below or in its principal brief,125
mootness precludes us from considering it.126
123 See Rajamin, 757 F.3d at 84‐85.
124 Keepers Supp. Br. 4.
125 In general, we do not address on appeal issues not sufficiently raised in
a party’s principal brief. See Norton v. Samʹs Club, 145 F.3d 114, 117‐18 (2d Cir.
1998). Nonetheless, we may affirm a district court “on any basis supported by the
record, even one not relied on by the lower court,” and “[a]lthough it behooves
appellees to raise all their defenses on appeal . . . we are not aware of any case
requiring them to do so.” Universal Church v. Geltzer, 463 F.3d 218, 229 (2d Cir.
2006); cf. Intʹl Trade Admin. v. Rensselaer Polytechnic Inst., 936 F.2d 744, 747 (2d Cir.
1991) (“[A] party need not cross‐appeal in order to assert an alternate ground
based on the record to support a district court decree.”).
Mootness would also preclude us from considering Keepers’ appeal
126
with respect to anonymous expression, if we had not already disposed of that
appeal on standing grounds. See note 77, ante (noting that courts may address
standing and mootness in either order).
40
“The case‐or‐controversy requirement subsists through all
stages of federal judicial proceedings, trial and appellate.”127 A
dispute that is live when suit is filed remains so only for as long as
the parties continue to have a “concrete stake in the outcome.”128
There is “no case or controversy, and a suit becomes moot,” when the
parties cease to have “a legally cognizable interest in the outcome” of
the case.129
When this litigation started, the alleged injury and the nature
of the dispute would have been clear: Chapter 2.3 required Keepers
to post names that it did not want to post. As a result, the
requirement potentially implicated the right of Keepers’ owners and
officers to express themselves anonymously, as well as Keepers’ own
First Amendment right against compelled speech. At this stage of the
litigation, however, that injury has disappeared.
The 2007 ordinance requires an SOB to post publicly the names
of individuals who (1) have “actual power” to operate the business or
control its “operation, management or policies”; (2) own at least
thirty percent of the business; or (3) are officers of a legal entity that
operates the business.130 The District Court upheld this requirement
Chafin v. Chafin, 133 S. Ct. 1017, 1023 (2013) (internal quotation marks
127
omitted).
See City of Erie v. Pap’s A.M., 529 U.S. 277, 288 (2000).
128
Chafin, 133 S. Ct. at 1023 (internal quotation marks omitted).
129
§ 2.3‐2 (2007).
130
41
except as it applies to individuals who “do not manage, operate or
control the sexually oriented business.”131 Because Keepers does not
appeal that decision,132 the only posting‐related issue before this
Court is the 2007 ordinance’s requirement that SOBs post the names
of “[p]assive [o]wners” and officers.133 In other words, what is at
stake in this appeal is whether Keepers must display the names of
those individuals who fall within the scope of the 2007 ordinance’s
public‐posting requirement but “do not manage, operate or control”
the business.134 We have seen no evidence that such persons exist.
The record indicates that Keepers has no passive shareholders, but
only a single owner, Angela Silano, who also serves as the company’s
president and, as far as the record indicates, sole officer.135 Therefore,
Keepers will have to display Silano’s name—regardless of the
outcome of this appeal—under that part of the 2007 ordinance which
the District Court upheld and which Keepers no longer challenges.136
Keepers, 944 F. Supp. 2d at 174.
131
See Keepers Reply Br. 12.
132
Id. at 8.
133
Keepers, 944 F. Supp. 2d at 174.
134
See Regensberger Affidavit, Doc. 52‐6; Silano Affidavit, Doc. 52‐7.
135
As president and sole owner, Silano undoubtedly has power to, and
136
does, “operate” or “control” Keepers. See § 2.3‐2 (2007); see also Keepers, 944 F.
Supp. 2d at 174.
42
That part of the 2007 public‐posting requirement invalidated by the
District Court has no effect on Silano’s anonymity, and Keepers has
identified no other shareholders or officers whose anonymity might
be implicated. As a result, we can identify no individual whose
anonymity is potentially at stake in this appeal, nor will this appeal
affect what information Keepers itself would be compelled to
display.137
In short, this appeal is moot, both with respect to Keepers’
third‐party anonymity claim and its compelled‐speech claim.
Although Milford has a stake in defending the constitutionality of its
ordinance, Keepers no longer has any concrete interest in the result of
this appeal. As a result, this case now lacks “that concrete
We note that Silano would also have been required to post her name
under the 2003 ordinance—if Milford had not repealed it—as an “officer or
partner” of Keepers, since Silano is the only officer who appears in the record. See
§ 2.3‐5 (2003).
137 In its supplemental brief, Keepers asserts for the first time that the
current “president, secretary, and director of Keepers, Inc.” is not Silano but Julia
Kish. Keepers Supp. Br. 4. As noted above, this assertion is irrelevant to our
decision. Even if we were to relax our normal rule against considering new facts
on appeal, see note 14, ante, Keepers has merely identified another third party who
already lacks anonymity, not only because of this litigation, but because her name
is already associated with Keepers on the website of the Connecticut Secretary of
State. See Keepers Supp. Br. 4. Moreover, as “president, secretary, and director,”
Kish would have to include her name on Keepers’ license as a person with “actual
power to operate the sexually oriented business” or to control its operation. See
§§ 2.3‐2; 2.3‐4(d) (2007). Keepers’ supplemental brief did not identify any other
shareholder or officer, besides Kish, whose anonymity might be implicated.
43
adverseness which sharpens the presentation of issues,”138 and which
is necessary for a case to remain “fit for federal‐court adjudication.”139
5. Summary and Disposition of Keepers’ Challenge to the Public‐
Posting Requirements
We hold that Keepers lacks prudential and constitutional
standing to challenge the public‐posting requirements based on its
owners’ and officers’ right of anonymous expression. We therefore
VACATE the District Court’s judgment insofar as it reached the
merits of this challenge and REMAND with direction to dismiss that
claim. Insofar as Keepers urges us to uphold the judgment based on
its own right against compelled speech, we find the appeal moot and
DISMISS it accordingly.
III. CONCLUSION
To summarize, we hold as follows:
(1) The District Court did not “abuse its discretion” in
considering the Mello Affidavit; and even if the District
Court did err, its error was harmless, because it had no
effect on the Court’s resolution of Keepers’ vagueness
challenge.
See Camreta v. Greene, 131 S. Ct. 2020, 2028 (2011) (quoting Los Angeles v.
138
Lyons, 461 U.S. 95, 101 (1983)).
Id. (quoting Arizonans for Official English, 520 U.S. at 67).
139
44
(2) We do not reach the merits of Keepers’ First Amendment
challenge to the public‐posting requirements, because
neither this Court nor the District Court has subject‐matter
jurisdiction to consider the issue.
a. Keepers challenged the public‐posting requirement
based on an asserted “First Amendment right to
anonymous expression,” but the anonymity at stake
is that of Keepers’ owners and officers, not that of
Keepers itself.
b. The doctrine of “prudential standing” generally bars
litigants from asserting the rights of third parties.
Keepers has failed to show why we should permit it
to assert the rights of its owners and officers in the
present case.
c. Article III of the U.S. Constitution does not permit a
plaintiff to sue unless it has suffered a legally
cognizable injury. Keepers has failed to show that the
public‐posting requirement has injured the
corporation itself—as opposed to its officers, owners,
or related third parties.
d. Even if Keepers originally had standing to challenge
the public‐posting requirement in the District Court
based on its asserted right against compelled speech,
the case has become moot on appeal. Based on the
record before us, Keepers’ president and sole owner
45
will be required to list her name on Keepers’ posted
license, regardless of who prevails before this Court.
We therefore lack jurisdiction to decide this appeal on
the merits.
For the foregoing reasons, we AFFIRM the District Court’s
March 30, 2013 judgment insofar as it denied Keepers’ motion to
exclude the Mello Affidavit. We also VACATE that part of the March
30, 2013 judgment concerning plaintiff’s First Amendment challenge
to the public‐posting requirements and REMAND to the District
Court with direction to dismiss that claim for lack of subject‐matter
jurisdiction. Insofar as Keepers urges us to uphold the judgment
based on its own claimed right against compelled speech, we
DISMISS the appeal as moot.
46
