Sensations, Inc. v. City of Grand Rapids

Decision Date20 May 2008
Docket NumberNo. 06-2510.,No. 07-1504.,No. 06-2508.,No. 06-2168.,06-2168.,06-2508.,06-2510.,07-1504.
Citation526 F.3d 291
PartiesSENSATIONS, INC.; Lady Godiva's, Inc., and Litle Red Barn Adult Theatre & Bookstore, Inc., Plaintiffs-Appellants, v. CITY OF GRAND RAPIDS; Michigan Decency Action Council, Inc.; Judy Rose; Dar Vander Ark; Black Hills Citizens for a Better Community, Inc., Defendants-Appellees.
CourtU.S. Court of Appeals — Sixth Circuit

Michael L. Donaldson, Livonia, Michigan, J. Michael Southerland, J. Michael Southerland, P.C., for Appellants. Scott D. Bergthold, Law Office of Scott D. Bergthold, P.L.L.C., Chattanooga, Tennessee, James R. Wierenga, David & Wierenga, P.C., Grand Rapids, Michigan, for Appellees.

ON BRIEF:

Michael L. Donaldson, Livonia, Michigan, J. Michael Southerland, J. Michael Southerland, P.C., Plymouth, Michigan, for Appellants. Scott D. Bergthold, Law Office of Scott D. Bergthold, P.L.L.C., Chattanooga, Tennessee, James R. Wierenga, David & Wierenga, P.C., Grand Rapids, Michigan, Catherine M. Mish, City Attorney's Office, Grand Rapids, Michigan, for Appellees.

Before: MERRITT, DAUGHTREY, and MOORE, Circuit Judges.

OPINION

KAREN NELSON MOORE, Circuit Judge.

This case concerns a consolidated appeal by Sensations, Inc. et al. ("Sensations") and Little Red Barn Adult Theatre & Bookstore, Inc. ("Little Red Barn") (collectively "Plaintiffs-Appellants"), from the grant of a judgment on the pleadings to the City of Grand Rapids ("Grand Rapids") and various private citizens and citizens' groups (collectively "Defendants"). These private citizens and citizens' groups include Michigan Decency Action Council, Inc., Judy Rose, Dar Vander Ark, and Black Hills Citizens for a Better Community (collectively "Non-City Defendants-Appellees"). Plaintiffs-Appellants filed a complaint in the United States District Court for the Western District of Michigan, seeking a preliminary injunction against an ordinance regulating sexually oriented businesses on the ground that the ordinance violated Plaintiffs-Appellants' First Amendment and Due Process rights. The district court denied Plaintiffs-Appellants' motion for a preliminary injunction, granted Defendants' motion for judgment on the pleadings, and awarded attorney fees to Non-City Defendants-Appellees to be paid by Little Red Barn.

I. FACTS AND PROCEDURE

After learning that a local businessman was planning to open a sexually oriented business in downtown Grand Rapids, Non-City Defendants-Appellees mobilized in favor of a regulatory ordinance. When the Grand Rapids City Council expressed initial reluctance to pass such an ordinance because of the potential costs of defending it against litigation, Non-City Defendants-Appellees promised that they would fund any necessary legal defense with personal and privately raised monies. On April 25, 2006, the Grand Rapids City Council passed Ordinance 2006-23 ("the Ordinance"), entitled Conduct in Sexually Oriented Businesses. Grand Rapids justified the Ordinance on the basis of the negative secondary effects associated with sexually oriented businesses.

Pursuant to the Ordinance, a sexually oriented business means "any adult motion picture theater, adult bookstore, adult novelty store, adult video store, adult cabaret or semi-nude model studio as defined in Section 5.284 of [the Grand Rapids] Code." Joint Appendix ("J.A.") at 45 (Ordinance at § 2(5)). The Ordinance contains the following major provisions: (1) a prohibition on total nudity; (2) the requirement that semi-nude adult-entertainment performers maintain a six-foot distance from patrons, on a stage at least eighteen inches from the floor, in a room of at least six-hundred square feet; (3) the configuration of any room where "any mechanical or electronic image-producing device ... display[s] ... specified sexual activities or specified anatomical areas ... in such a manner that there is an unobstructed view from an operator[']s station of every area of the premises"; (4) a 180-day compliance allowance; (5) a no-touching rule between sexual performers and audience members; (6) a prohibition on the operation of a sexually oriented business between the hours of two A.M. and seven A.M. J.A. at 45-46 (Ordinance at § 3).

The Ordinance provides the following definitions:

"Nudity," "nude," or "state of nudity" means the knowing or intentional live display of a human genital organ or anus with less than a fully opaque covering or a female's breast with less than a fully opaque covering of the nipple and areola. Nudity, as used in this section, does not include a woman's breast-feeding of a baby whether or not the nipple or areola is exposed during or incidental to the feeding....

"Semi-nudity," "semi-nude," or in a "semi-nude condition" means the showing of the female breast below a horizontal line across the top of the areola and extending across the width of the breast at that point, or the showing of the male or female buttocks. This definition shall include the lower portion of the human female breast, but shall not include any portion of the cleavage of the human female breasts exhibited by a bikini, dress, blouse, shirt, leotard, or similar wearing apparel provided the areola is not exposed in whole or in part.

J.A. at 44-45 (Ordinance at §§ 2(b)(ii), 2(b)(iv)).

Co-plaintiffs Sensations, Inc. and Lady Godiva's, Inc. filed a complaint in the United States District Court for the Western District of Michigan, alleging that Grand Rapids had infringed on their First Amendment rights in violation of 42 U.S.C. § 1983. The district court consolidated the case filed by Sensations with a suit filed by Little Red Barn against both Grand Rapids and Non-City Defendants-Appellees. Little Red Barn filed a motion for a continuation of a stay of enforcement or for a preliminary injunction, in which Sensations joined. Grand Rapids filed a motion for judgment on the pleadings, as did Non-City Defendants-Appellees. Sensations filed a brief in opposition supported by twenty-six exhibits. Little Red Barn filed its Response and Brief in Opposition and attached the affidavit of Dr. Daniel Linz and supporting documents.

The district court denied the motion for a continuation of a stay or for a preliminary injunction. Little Red Barn filed a timely notice of appeal. The district court later issued an opinion granting the Defendants' motion for judgment on the pleadings. Little Red Barn filed a timely notice of appeal, as did Sensations. The district court awarded attorney fees to Non-City Defendants-Appellees to be paid by Little Red Barn, and Little Red Barn filed a timely notice of appeal.

II. ANALYSIS
A. Standard of Review

Motions for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c) are analyzed under the same de novo standard as motions to dismiss pursuant to Rule 12(b)(6). Penny/Ohlmann/Nieman, Inc. v. Miami Valley Pension Corp., 399 F.3d 692, 697 (6th Cir.2005). We review the district court's denial of Plaintiffs-Appellants' motion for a preliminary injunction for abuse of discretion. Am. Civil Liberties Union of Ohio, Inc. v. Taft, 385 F.3d 641, 645 (6th Cir.2004). In Bell Atlantic Corp. v. Twombly, 550 U.S. ___, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), the Supreme Court explained that "a plaintiff's obligation to provide the `grounds' of his `entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.... Factual allegations must be enough to raise a right to relief above the speculative level...." Id. at 1964-65 (internal citations omitted). In Erickson v. Pardus, 550 U.S. ___, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007), decided two weeks after Twombly, however, the Supreme Court affirmed that "Federal Rule of Civil Procedure 8(a)(2) requires only `a short and plain statement of the claim showing that the pleader is entitled to relief.' Specific facts are not necessary; the statement need only `give the defendant fair notice of what the ... claim is and the grounds upon which it rests.'" Id. at 2200 (quoting Twombly, 127 S.Ct. at 1964). The opinion in Erickson reiterated that "when ruling on a defendant's motion to dismiss, a judge must accept as true all of the factual allegations contained in the complaint." Id. (citing Twombly, 127 S.Ct. at 1965). We read the Twombly and Erickson decisions in conjunction with one another when reviewing a district court's decision to grant a motion to dismiss for failure to state a claim or a motion for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12.1

B. Did the District Court Err by Converting a Rule 12(c) Motion into a Rule 56 Motion?

Plaintiffs-Appellants argue that by considering the legislative record attached to Defendants' motion the district judge improperly converted a motion for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c) into a motion for summary judgment pursuant to Federal Rule of Civil Procedure 56. Federal Rule of Civil Procedure 10(c) provides that "[a] copy of a written instrument that is an exhibit to a pleading is a part of the pleading for all purposes."2 We have previously held that a district court converts a Rule 12(c) motion into a Rule 56 motion when the district judge merely "fail[s] to exclude presented outside evidence." Max Arnold & Sons, LLC v. W.L. Hailey & Co., 452 F.3d 494, 503 (6th Cir.2006). Thus the question before us is whether the legislative record comes within the scope of Rule 10(c) or is "outside evidence" under Max Arnold.

In the instant case, we hold that the district court did not convert Defendants' Rule 12(c) motion into a Rule 56 motion. Certainly, the district judge accepted as evidence of secondary effects the legislative record, which Defendants attached to their motion for judgment on the pleadings. Were the legislative record to constitute a document outside the pleadings, then the district...

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