Fox v. Board of Trustees of State University of New York

• Decision Date: 09 December 1994
• Docket Number: D,No. 780,780
• Citation: 42 F.3d 135
• Parties: 96 Ed. Law Rep. 338 Todd FOX, Edward R. Detweiler, Stephanie Vaiano, James B. Cullen, Christine Marie Odell, Steven Gawley, Daniel Altman, Philip Jay Botwinik, Jeffrey S. Zellan, Jaclyn Bernstein, Glen Magpantay, William Weitz, Corey Anthony, Diego Munoz, Edward Fagan, Baycan Fideli, Jodie Green and Jeffrey Luks, Plaintiffs-Appellants, v. The BOARD OF TRUSTEES OF THE STATE UNIVERSITY OF NEW YORK and Clifton R. Wharton, Jr., individually and as Chancellor of the Board of Trustees and the State University of New York College at Cortland, and James M. Clark, individually and as President of the College at Cortland, and the State University of New York at Binghamton, and Clifford D. Clark, individually and as President of the State University of New York at Binghamton, and the State University of New York at Albany, and Vincent O'Leary, individually and as President of the State University of New York at Albany, and the State University of New York College of Arts and Sciences at Potsdam, and Humphrey Tomkin, individually and as President of the College of Arts and Sciences at Potsdam, Defendants-Appellees. ocket 93-7715.
• Court: U.S. Court of Appeals — Second Circuit

Page 135

42 F.3d 135

96 Ed. Law Rep. 338

Todd FOX, Edward R. Detweiler, Stephanie Vaiano, James B Cullen, Christine Marie Odell, Steven Gawley, Daniel Altman Philip Jay Botwinik, Jeffrey S. Zellan, Jaclyn Bernstein Glen Magpantay, William Weitz, Corey Anthony, Diego Munoz Edward Fagan, Baycan Fideli, Jodie Green and Jeffrey Luks, Plaintiffs-Appellants, v. The BOARD OF TRUSTEES OF THE STATE UNIVERSITY OF NEW YORK and Clifton R. Wharton, Jr., individually and as Chancellor of the Board of Trustees and the State University of New York College at Cortland, and James M. Clark, individually and as President of the College at Cortland, and the State University of New York at Binghamton, and Clifford D. Clark, individually and as President of the State University of New York at Binghamton, and the State University of New York at Albany, and Vincent O'Leary, individually and as President of the State University of New York at Albany, and the State University of New York College of Arts and Sciences at Potsdam, and Humphrey Tomkin, individually and as President of the College of Arts and Sciences at Potsdam, Defendants-Appellees.

No. 780, Docket 93-7715.

United States Court of Appeals, Second Circuit.

Argued Dec. 16, 1993.

Decided Dec. 9, 1994.

Henry T. Reath, Philadelphia, PA (Wayne A. Mack, Richard W. Riley, Marc H. Perry, Duane, Morris & Heckscher, of counsel), for plaintiffs-appellants.

Daniel Smirlock, Asst. Atty. Gen. of the State of New York, Albany, NY (Robert Abrams, Atty. Gen. of the State of New York, Peter H. Schiff, Deputy Sol. Gen. of the State of New York, Nancy A. Spiegel, Asst. Atty. Gen. of the State of New York, of counsel), for defendants-appellees.

Before: MAHONEY and WALKER, Circuit Judges, and EGINTON, District Judge. ^*

MAHONEY, Circuit Judge:

Plaintiffs-appellants ("Plaintiffs"), individuals who at or following the commencement of this action were students in the State University of New York ("SUNY") system, appeal from a judgment entered May 11, 1993 in the United States District Court for the Northern District of New York, Neal P. McCurn, Judge, that dismissed as moot their amended complaint (the "Complaint") seeking declaratory and injunctive relief on First Amendment grounds against a SUNY regulation that operated to bar private commercial businesses from engaging in sales demonstrations in students' dormitory rooms, and denied leave to file an amended complaint. See Fox v. Board of Trustees of the State Univ., 148 F.R.D. 474 (N.D.N.Y.1993) ("Fox VI ") (opinion supporting judgment).

In a prior memorandum-decision and order entered May 24, 1991, the district court had concluded that Plaintiffs' claims were moot because all of the Plaintiffs were no longer SUNY students and thus could not benefit from the declaratory and injunctive relief sought in the Complaint, rejecting various contentions by Plaintiffs to the contrary that are reiterated on this appeal and addressed subsequently in this opinion. See Fox v. Board of Trustees of the State Univ., 764 F.Supp. 747, 751-57 (N.D.N.Y.1991) ("Fox V "). The court had also ruled, however, that Plaintiffs could further amend the Complaint by adding additional plaintiffs who could benefit from declaratory or injunctive relief, and thus stave off dismissal. See id. at 757-59. On June 10, 1991, defendants-appellees ("Defendants") moved for modification of this order, seeking dismissal of the Complaint due to mootness without leave to amend to cure the defect. See Fox VI, 148 F.R.D. at 476. The court reaffirmed its finding that the claim was moot, but granted Defendants' motion to modify the court's prior order, denied leave to amend the Complaint, and dismissed the Complaint. See Fox VI, 148 F.R.D. at 489.

On this appeal, Plaintiffs argue that the district court erred in: (1) dismissing the Complaint as moot; (2) failing to allow amendment of the Complaint; and (3) failing to enter judgment in Plaintiffs' favor. We conclude that because the relief sought in the Complaint could provide no benefit to Plaintiffs once they were no longer students in the SUNY system, and because this case does not fall within any exception to the doctrine of mootness, the district court properly dismissed the case as moot. Further, we conclude that the absence of any remaining Plaintiffs with a legally cognizable personal interest in the outcome of the litigation precludes any amendment of the Complaint to add additional plaintiffs.

We accordingly affirm the judgment of the district court.

Background

The facts of this case have been extensively detailed several times during the course of this protracted litigation, and will be recounted here only as necessary to elucidate the issues presented on this appeal. This case arose when Todd Fox, a student at SUNY Cortland, was denied permission to host, in his dormitory room on the SUNY Cortland campus, a cookware demonstration sponsored by American Future Systems, Inc. ("AFS"), "a corporation engaged in selling cookware ... to college students through group demonstrations." Fox V, 764 F.Supp. at 749 n. 1. Fox was denied permission to host such an event pursuant to SUNY Resolution No. 66-156 (the "Resolution"), which provides in pertinent part that:

No authorization will be given to private commercial enterprises to operate on State University campuses or in facilities furnished by the University other than to provide for food, legal beverages, campus bookstore, vending, linen supply, laundry, dry cleaning, banking, barber and beautician services and cultural events.

Fox V, 764 F.Supp. at 749.

Following the denial of permission for Fox to host the demonstration, AFS, an AFS representative, and Fox commenced this action, claiming that the Resolution violated their First Amendment rights and seeking a preliminary injunction permitting Fox to host an AFS-sponsored cookware demonstration in his dormitory rooms. See id.; see also Fox v. Board of Trustees of the State Univ., 841 F.2d 1207, 1208 (2d Cir.1988) ("Fox II "), rev'd and remanded, 492 U.S. 469, 109 S.Ct. 3028, 106 L.Ed.2d 388 (1989). The district court initially concluded that the Resolution would not satisfy the requirements set forth by the Supreme Court for the regulation of commercial speech in Central Hudson Gas & Electric Corp. v. Public Service Comm'n, 447 U.S. 557, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980), because the Resolution did not "directly advance the governmental interests asserted," and was "more extensive than necessary to serve such interests." American Future Sys. v. State Univ., 565 F.Supp. 754, 767 (N.D.N.Y.1983) ("AFS v. SUNY "); see also Fox V, 764 F.Supp. at 749-50. Accordingly, the court issued the preliminary injunction sought by the plaintiffs in that case. See AFS v. SUNY, 565 F.Supp. at 770-71; see also Fox V, 764 F.Supp. at 750.

Following the issuance of the preliminary injunction, the complaint was amended to challenge "interim" regulations promulgated by SUNY after the court issued the injunction, to drop the AFS representative as a plaintiff, to add as plaintiffs several students at other SUNY campuses, and to add as defendants SUNY officials at those campuses. See Fox V, 764 F.Supp. at 750; Fox II, 841 F.2d at 1210 n. 1. The court extended the preliminary injunction to these additional defendants. See Fox II, 841 F.2d at 1210 n. 1. The amended complaint was tried to the district court, which dismissed the complaint and granted judgment for Defendants, holding that SUNY "ha[d] not created a public forum for the commercial speech at issue," and that the Resolution was "viewpoint-neutral and reasonable in relation to the forum's purpose." Fox v. Board of Trustees of the State Univ. of New York, 649 F.Supp. 1393, 1401 (N.D.N.Y.1986) ("Fox I "), rev'd and remanded, 841 F.2d 1207 (2d Cir.1988), rev'd and remanded, 492 U.S. 469 (1989); see also Fox V, 764 F.Supp. at 750. ¹

The plaintiffs appealed to this court. During the pendency of that appeal, AFS withdrew as a party and proceeded only as an amicus. See Fox II, 841 F.2d at 1208; see also Fox V, 764 F.Supp. at 750. This court reversed the district court's judgment and remanded for the district court to determine whether the Resolution directly advanced the asserted governmental interests and whether the Resolution was the least restrictive means available to advance those interests. Fox II, 841 F.2d at 1213-14.

Upon remand, and while a petition for certiorari filed by Plaintiffs was pending, the district court ruled that, assuming that the Resolution and the interim regulations directly advanced SUNY's asserted interests, neither the Resolution nor the interim regulations were "the least restrictive means for advancing those interests." Fox v. Board of Trustees of the State Univ., 695 F.Supp. 1409, 1413-14 (N.D.N.Y.1988) ("Fox III "). Accordingly, the court held that both the Resolution and the interim regulations violated the First Amendment. Id. at 1414. However, on the same day that the district court's decision was issued, October 3, 1988, the Supreme Court granted the petition for certiorari. Board of Trustees of the State Univ. v. Fox, 488 U.S. 815, 109 S.Ct. 52, 102 L.Ed.2d 31 (1988). Accordingly, the proceedings in the district court were stayed pending the Supreme Court's decision in the case. See Fox V, 764 F.Supp. at 750 & n. 17.

The Supreme Court concluded that SUNY could adopt speech-restrictive regulations that "employ[ ] not necessarily the least restrictive means but ... a means narrowly tailored to achieve the desired objective." Board of Trustees of the State Univ. v. Fox, 492 U.S. 469, 480, 109 S.Ct. 3028, 3034-35, 106 L.Ed.2d 388 (1989) ("Fox IV "); see also Fox II, 841 F.2d at 1215 (Mahoney, J., dissenting). Also noting that the Resolution allegedly infringed upon some noncommercial speech, thereby posing a question of overbreadth, see Fox IV, 492 U.S. at 481-84, 109 S.Ct. at 3035-37, the Supreme Court reversed the judgment of this court and remanded...