D'Angio v. Borough of Nescopeck, 4:CV-98-1115.
| Decision Date | 06 July 1999 |
| Docket Number | No. 4:CV-98-1115.,4:CV-98-1115. |
| Parties | Decio D'ANGIO, Plaintiff, v. BOROUGH OF NESCOPECK, et al., Defendants. |
| Court | U.S. District Court — Middle District of Pennsylvania |
Carl Max Janavitz, Warner Mariani, Pittsburgh, PA, for plaintiff.
Donald H. Brobst, Wilkes-Barre, PA, for defendants.
BACKGROUND:
On June 10, 1998, plaintiff Decio D'Angio commenced this action with the filing of a complaint alleging that the Public Indecency Ordinance ("the ordinance" or "Nescopeck ordinance") enacted by Nescopeck on May 11, 1998, violates (1) his freedom of speech under the United States and Pennsylvania Constitutions and (2) his rights under the Equal Protection provisions of both constitutions. By order dated January 29, 1999, this court granted defendants' motion to dismiss pursuant to FED.R.CIV.P. 12(b)(6). This court declined to exercise supplemental jurisdiction over plaintiff's state constitutional claims pursuant to 28 U.S.C. § 1367(c)(1) and (3). Moreover, this court distinguished the decision in Pap's A.M. v. City of Erie [Pap's II], 553 Pa. 348, 719 A.2d 273 (1998), wherein the Pennsylvania Supreme Court declined to follow the precedent set forth by the United States Supreme Court in Barnes v. Glen Theatre, Inc., et al., 501 U.S. 560, 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991). On May 17, 1999, the United States Supreme Court granted certiorari on the Pap's II decision. See City of Erie v. Pap's A.M., ___ U.S. ___, 119 S.Ct. 1753, 143 L.Ed.2d 786 (1999).
Presently before the court is plaintiff's motion for reconsideration of this court's order of January 29, 1999. For the reasons which follow, we will deny plaintiff's motion.
DISCUSSION:
I. STANDARD
1. Motion For Reconsideration
The federal rules allow a party to move to alter or amend a judgment within ten (10) days of its entry. FED.R.CIV.P. 59(e). According to the Third Circuit, "[t]he purpose of a motion for reconsideration is to correct manifest errors of law or to present newly discovered evidence." Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir.1985). However, where evidence is not newly discovered, a party may not submit that evidence in support of a motion for reconsideration. Id. at 909 (citing DeLong Corp. v. Raymond Int'l Inc., 622 F.2d 1135, 1139-40 (3d Cir.1980)). Accordingly, reconsideration motions will be granted only where (1) an intervening change in the law has occurred, (2) new evidence not previously available has emerged, or (3) the need to correct a clear error of law or prevent a manifest injustice arises. North River Ins. Co. v. CIGNA Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir.1995). Reconsideration of judgment is an extraordinary remedy; therefore, such motions are to be granted sparingly. NL Industries v. Commercial Union Ins., 935 F.Supp. 513 (D.N.J.1996) (citing Maldonado v. Lucca, 636 F.Supp. 621, 630 (D.N.J. 1986)).
II. RECONSIDERATION IS NOT REARGUMENT
In order for plaintiff's motion to be granted, there must be an intervening change in the law, the availability of new evidence, or the need to correct a clear error of law. Here, there has been no intervening change in the law. Moreover, plaintiff has not introduced any new evidence; indeed, no evidence has been introduced, as the Rule 12(b)(6) motion has been granted solely on the pleadings. Therefore, for the motion for reconsideration to be granted, plaintiff must satisfy the court that there is the need to correct a clear error of law.
It is under this third prong we analyze the merits of plaintiff's motion. However, we preface our opinion here with our belief that there is no clear error of law to correct. Indeed, plaintiff, proceeding under the direction of new counsel, now presents to the court arguments that were never meaningfully briefed in his opposition to defendants' motion to dismiss. As stated by our Chief Judge: Grossman v. Jiminez, No. 91-0423, slip op. at 5 (M.D.Pa.) issued April 17, 1991 (Rambo, C.J.) (quoting United States v. Dunkel, 927 F.2d 955, 956 (7th Cir.1991)). It is somewhat audacious to ask the court to reconsider a decision because of a legal theory not properly presented for the court's initial consideration.
In the absence of the arguments now being presented in plaintiff's motion for reconsideration, we granted in part defendants' motion to dismiss based on Barnes, 501 U.S. at 560, 111 S.Ct. 2456, 115 L.Ed.2d 504. Indeed, despite the splintered opinions of the Barnes Court, five justices agreed, and the Court held, that the Indiana statute, as applied to prohibit nude dancing performed as entertainment, did not violate the First Amendment.1 The holding is the supreme law of the land, binding upon this court and all other inferior courts.
Notwithstanding plaintiff's failure meaningfully to address in his initial brief the arguments he now presents for reconsideration, the court will now consider them in view of the significant constitutional issues. From his brief in support of the motion for reconsideration, we were able to ferret out two main arguments that were previously unaddressed. First, plaintiff contends that the court should have followed Justice Souter's concurring opinion, in accordance with Marks v. United States, 430 U.S. 188, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977). Second, plaintiff argues that the Nescopeck ordinance is unconstitutionally overbroad. We will now address these arguments seriatim.
Plaintiff argues that Justice Souter's opinion in Barnes is the controlling holding since there is no majority opinion. See Plaintiff's Brief in Support of Motion For Reconsideration at 6. In support of his argument, plaintiff cites Marks, in which the United States Supreme Court held, "When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, `the holding of the Court may be viewed as that position taken by those members who concurred in the judgments on the narrowest ground.'" Marks, 430 U.S. at 193, 97 S.Ct. 990 (citing Gregg v. Georgia, 428 U.S. 153, 169 n. 15, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976)). Such jurisprudential gymnastics are necessary, however, only when the facts of the instant case vary materially from those of the cited authority, not the situation here.
Assuming arguendo Justice Souter's concurrence is the controlling holding, it still does not correct an error in the law. Justice Souter held that the state's interest supporting the statute was not society's moral views, but rather the interest in fighting the secondary effects of adult entertainment establishments. Barnes, 501 U.S. at 581, 111 S.Ct. 2456.
Justice Souter agreed with the plurality opinion that the test found in United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968)2, should be applied in Barnes. See Barnes, 501 U.S. at 582, 111 S.Ct. 2456. This court applied the O'Brien test to the instant case. See D'Angio v. Borough of Nescopeck, 34 F.Supp.2d 256, 260 (M.D.Pa.1999). As discussed below, we reach the same conclusion with our application of the O'Brien test as Justice Souter.
According to Justice Souter, the first prong of the O'Brien test is satisfied by the state's prevention of secondary effects of adult entertainment establishments. See Barnes, 501 U.S. at 583, 111 S.Ct. 2456. Justice Souter stated "it is clear that the prevention of such evils falls within the constitutional power of the State". Id. While this court in D'Angio did not focus on the state's prevention of secondary effects of adult entertainment establishments in satisfying this first prong, we found that enacting such legislation "to provide for the public health, safety and morals" was indeed within the constitutional power of the government. D'Angio, 34 F.Supp.2d at 260-61. Under either analysis, the Nescopeck ordinance satisfies the first prong of the O'Brien test.
As to the second prong, Justice Souter concluded that the ordinance in Barnes furthered a substantial state interest. Moreover, Justice Souter cited Renton v. Playtime Theatres, Inc., 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986) which held that a state need not justify the harmful secondary effects, but may rely on other states' experiences. "`Renton was entitled to rely on the experiences of Seattle and other cities' [citations omitted] which demonstrated the harmful secondary effects correlated with the presence `of even one [adult] theater in a given neighborhood.'" Barnes, 501 U.S. at 584, 111 S.Ct. 2456 (quoting Renton, 475 U.S. at 50, 106 S.Ct. 925).
Here, plaintiff contends that "the Borough of Nescopeck is constitutionally required to offer record support both for the existence of adverse secondary effects and for the causal link as to how the enacted Ordinance will ameliorate the harm of public nudity." See Plaintiff's Brief in Support of Motion For Reconsideration at 14. However, this position is contrary to Justice Souter's opinion. As previously stated, Justice Souter concluded that a state need not justify the harmful secondary effects of adult entertainment establishments.
As to the third prong, Justice Souter found that the "government interest in combating prostitution and other criminal activity [was] not at all inherently related to expression." Barnes, 501 U.S. at 585, 111 S.Ct. 2456. We agree with Justice Souter. As stated by this court in D'Angio, "[i]t is not the dancing per se the Ordinance seeks to prohibit, but simply its being done in the nude." D'Angio, 34 F.Supp.2d at 260-61.
Finally, as to the last prong, Justice Souter concluded that mandating dancers to wear pasties and G-strings was an incidental restriction on expression. Barnes, 501 U.S. at 587, 111 S.Ct. 2456. Similarly, we...
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