Deja Vu of Nashville v. Metropolitan Gov.

• Decision Date: 12 October 2006
• Docket Number: No. 05-5895.,05-5895.
• Citation: 466 F.3d 391
• Parties: DEJA VU OF NASHVILLE, INC., et al., Plaintifs-Appellants, v. METROPOLITAN GOVERNMENT OF NASHVILLE & DAVIDSON COUNTY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

466 F.3d 391

DEJA VU OF NASHVILLE, INC., et al., Plaintifs-Appellants, v. METROPOLITAN GOVERNMENT OF NASHVILLE & DAVIDSON COUNTY, Defendant-Appellee.

No. 05-5895.

United States Court of Appeals, Sixth Circuit.

Argued: June 6, 2006.

Decided and Filed: October 12, 2006.

Rehearing Denied November 3, 2006.

ARGUED:

Bradley J. Shafer, Shafer & Associates, Lansing, Michigan, for Appellants. Francis H. Young, Metropolitan Department of Law, Nashville, Tennessee, for Appellee.

ON BRIEF:

Bradley J. Shafer, Andrea E. Pritzlaff, Shafer & Associates, Lansing, Michigan, Michael F. Pleasants, Memphis, Tennessee, for Appellants. Francis H. Young, James L. Charles, Metropolitan Department of Law, Nashville, Tennessee, for Appellee.

Before MARTIN, MOORE, and ROGERS, Circuit Judges.

AMENDED OPINION

BOYCE F. MARTIN, JR., Circuit Judge.

This case has been before this Court several times. See Deja Vu of Nashville Inc. v. Metro. Gov't of Nashville & Davidson County, 274 F.3d 377 (6th Cir.2001) [hereinafter Deja Vu I]. Last time it was here, the Court remarked that "`deja vu' provides a particularly appropriate label for this second appeal." Deja Vu of Nashville, Inc. v. Metro. Gov't of Nashville & Davidson County, 421 F.3d 417, 418 (6th Cir.2005) [hereinafter Deja Vu II]. This time, it's "like deja vu all over again." YOGI BERRA, available at ht tp://www.quotationspage.com/quote/27218.html (last accessed June 20, 2006); see also JOHN FOGERTY, Deja Vu (All Over Again), on DEJA VU ALL OVER AGAIN (Geffen Records 2004). Before us now is Deja Vu's appeal from the district court's decision dissolving a permanent injunction which had enjoined the enforcement of Metropolitan Code of Laws Chapter 6.54 "Sexually Oriented Businesses" ("the Ordinance"), and dismissing the case. The issue on appeal is whether it was proper for the district court to have done so. We AFFIRM.

I.

There is quite a history to this case. It has been described extensively in this Court's previous opinions, Deja Vu of Nashville, Inc. v. Metro. Gov't of Nashville & Davidson County, 274 F.3d 377 (6th Cir.2001) [hereinafter Deja Vu I], and Deja Vu of Nashville, Inc. v. Metro. Gov't of Nashville & Davidson County, 421 F.3d 417, 418 (6th Cir.2005) [hereinafter Deja Vu II]. In short, the Metro Nashville government enacted Chapter 6.54 on August 19, 1997. It required "sexually oriented" businesses to obtain licenses and performers to obtain permits. Deja Vu sought to enjoin the Ordinance by arguing that it was unconstitutional for not providing prompt judicial review. The district court agreed, and on December 8, 1997, entered a preliminary injunction. The government amended the Ordinance and, approximately one year later, the injunction was dissolved. In response, on December 17, 1998, Deja Vu filed a second motion for a preliminary injunction. The government responded by notifying the court of ninety-two amendments to the Ordinance since it was enacted. The district court granted Deja Vu's motion on October 4, 1999, enjoining enforcement of the Ordinance in its entirety. Shortly thereafter, following a hearing on December 21, 1999, the preliminary injunction was converted into a permanent injunction.

The government amended the Ordinance and at the same time appealed to this Court. In Deja Vu I, this Court affirmed the district court's decision enjoining enforcement of the amended Ordinance, holding that the judicial review provision, i.e., Tennessee's common law writ of certiorari, was constitutionally inadequate and that the statutory definition of "sexually oriented" was overly broad. The Supreme Court denied certiorari, 535 U.S. 1073, 122 S.Ct. 1952, 152 L.Ed.2d 855 (2002), at which time additional amendments of the Ordinance went into effect. The amendments narrowed the definition of "sexually oriented," and the State altered the common law writ to require prompt judicial review in First Amendment cases. On February 23, 2005, the government filed a motion to dissolve the permanent injunction. The government argued that the Ordinance is now constitutional under City of Littleton, Colorado v. Z.J. Gifts D-4, L.L.C., 541 U.S. 774, 124 S.Ct. 2219, 159 L.Ed.2d 84 (2004), and complied with Deja Vu I. See Deja Vu I, 274 F.3d at 403 ("Upon remand, the district court should maintain the injunction until Metropolitan Nashville satisfies it that the constitutional problems with the Ordinance's definition of `sexually oriented' and its judicial review procedures have been corrected."). The district court agreed with the government and entered an Order dissolving the injunction on April 29, 2005. The court found that the amended definition of "sexually oriented" "is not overbroad and complies with the First Amendment."¹ Further, the court found that the judicial review provision "does guarantee prompt judicial review as required by the First Amendment," and "Metro has satisfied this Court that the constitutional problems with its judicial review procedures have been corrected."² The district court further concluded that the previous injunction hearing had been consolidated with a trial on the merits, and therefore further litigation, if it were to occur, would need to be the result of the filing of a new case by Deja Vu. Nine days prior to the district court's decision dissolving the injunction, this Court heard oral argument in Deja Vu II, which involved the district court's award of attorney fees to Deja Vu. This is how it stood when this Court affirmed the district court's award of $536,535.22 in attorney fees in Deja Vu II. The appeal from the district court's order dissolving the permanent injunction is now before this Court. Deja Vu essentially makes two arguments. First, it argues that the district court improperly dissolved the injunction by not analyzing the issue under Federal Rule of Civil Procedure 60(b). Second, Deja Vu argues that the district court improperly dismissed the case because Deja Vu never received a trial on its claims.

II.

A. Dissolution of the Injunction

"A party is entitled to a permanent injunction if it can establish that it suffered a constitutional violation and will suffer `continuing irreparable injury' for which there is no adequate remedy at law." Women's Medical Professional Corp. v. Baird, 438 F.3d 595, 602 (6th Cir.2006) (quoting Kallstrom v. City of Columbus, 136 F.3d 1055, 1067 (6th Cir. 1998)). In evaluating a district court's grant of a permanent injunction or dissolution of a permanent injunction previously granted, we review its factual findings for clear error and its legal conclusions de novo. Id. The scope of injunctive relief is reviewed under an abuse of discretion standard. Id.

Even before the Federal Rules of Civil Procedure were enacted, the prospective features of injunctions were subject to modification by the district court. United States v. Swift & Co., 286 U.S. 106, 114, 52 S.Ct. 460, 76 L.Ed. 999 (1932) (noting that "a continuing decree of injunction directed to events to come is subject always to adaptation as events may shape the need"). Now that the Rules have been enacted, modifications or dissolution of injunctions must take place under Rule 60(b). Rufo v. Inmates of Suffolk Jail, 502 U.S. 367, 380, 112 S.Ct. 748, 116 L.Ed.2d 867 (1992) (noting that "the prospective effect of such a judgment or decree will be open to modification where deemed equitable under Rule 60(b)"). In Rufo, the Court held that "Rule 60(b)(5) provides that a party may obtain relief from a court order when `it is no longer equitable that the judgment should have prospective application,' not when it is no longer convenient to live with the terms of a consent decree. Accordingly, a party seeking modification of a consent decree bears the burden of establishing that a significant change in circumstances warrants revision of the decree." Id.

Thus, "if a party seeks to have a decree set aside entirely, he or she has to show that the decree has served its purpose, and there is no longer any need for the injunction." MOORE'S FED. PRACTICE § 60.47[2][c] (3d ed.2005); see also Board of Education of Oklahoma City v. Dowell, 498 U.S. 237, 247, 111 S.Ct. 630, 112 L.Ed.2d 715 (1991) (without referencing Rule 60(b)(5), holding that the desegregation decree should be dissolved when "the purposes of the desegregation litigation had been fully achieved"); Nicacio v. INS, 797 F.2d 700, 706 (9th Cir.1985) ("[A] court which issues an injunction retains jurisdiction to modify the terms of the injunction if a change in circumstances so requires."). In Sweeton v. Brown, 27 F.3d 1162 (6th Cir.1994) (en banc), this Court described a "flexible standard" having "ancient lineage in our common law," and stated that Sir Francis Bacon's "principles generally provide that a court has continuing jurisdiction to terminate or modify an injunction and that an equitable remedy should be enforced only as long as the equities of the case require." Id. at 1164. In ordering the injunctions dissolved, we focused on the fact that "[t]he foundation upon which the claim for injunctive relief was built has crumbled," and concluded that "[n]o basis in federal law exists for the injunctive relief imposed in this case." Id. We then stated:

Injunctions are one of the law's most powerful weapons. Ongoing injunctions should be dissolved when they no longer meet the requirements of equity. The law changes and clarifies itself over time. Neither the doctrines of res judicata or waiver nor a proper respect for previously entered judgments requires that old injunctions remain in effect when the old law on which they were based has changed.

Id. at 1166-67.

Consistent with these standards, in Deja Vu I, this Court stated that "[u]pon remand, the district court should maintain the injunction until Metropolitan Nashville satisfies it that the constitutional problems with the Ordinance's definition of `sexually oriented' and its judicial review procedures have been corrected." 274 F.3d...