Tops Sales & Serv. Inc. v. City of Forest Park
| Decision Date | 07 December 2010 |
| Docket Number | CIVIL ACTION NO. 1:09-cv-0442-RWS |
| Court | U.S. District Court — Northern District of Georgia |
| Parties | TOPS SALES & SERVICES, INC. d/b/a TOPS SHOWBAR, and THE A GROUP, INC., Plaintiffs, v. CITY OF FOREST PARK, et al., Defendants. |
This case comes before the Court on Defendants' RenewedMotion to Dismiss [59] and Plaintiffs' Motion to Amend [67]. After a review of the record, the Court enters the following Order.
Plaintiffs Tops Sales and Services, Inc. d/b/a Tops Showbar ("Tops") and The A Group, Inc. ("The A Group") filed this action challenging various ordinances of the City of Forest Park ("City") as they relate to the regulation of adult entertainment establishments, specifically, an adult entertainment business that Tops seeks to open in the City. Additionally, Plaintiffs have brought claims against the Mayor-Corine Deyton, City Manager-John Parker, Chief of Police-Dwayne Hobbes, and Councilpersons-Deborah Youmans, Sparkle Adams, Linda Lord, and Maudie McCord.
Tops currently leases property located at 3950 Jonesboro Road in the City of Forest Park (the "3950 Property") from The A Group. Compl., Dkt. No. [1] at 7. Plaintiff contends that The A Group was issued a special permit in 1993 allowing the property to be used as an adult entertainment establishment. Id. at 6. The previous tenant, Red Eyed, Inc. ("REI"), operated an adult entertainment establishment on the property from 1993 to 2008 under a valid license issued by the City. Id. at 5. Anticipating REI's departure from the property, Tops entered into a lease agreement with The A Group in 2008 to lease the property for use as an adult entertainment establishment. Id. at 7. In March 2008, Tops submitted a complete adult entertainment and alcohol license application to the City for The A Group property. In June 2008, while still a tenant at The A Group property, REI filed an application with the City for an adult entertainment and alcohol license for 3920 Jonesboro Road ("3920 Property"), a property adjacent to the A Group property. Id. This application was made at the time the 1997 Adult Entertainment Ordinance ("1997 Ordinance") was in effect. Tops alleges that in August 2008, the City enacted two resolutions favoring REI and approved the request for transfer of the location of its license premises to 3920 Jonesboro Road. Id. at 8. Shortly following this approval, in September 2008, the City enacted a 180-day moratorium on the issuance of adult entertainment licenses. Id. at 9. Tops contends that its adult entertainment application was improperly tabled pursuant to the moratorium enacted in 2009. Id. at 8. Further, Plaintiffs claim that, in violation of due process, the City has failed to state a reason for its denial of the alcohol license application. Id. at 15. Since Plaintiffs submitted their 1997 Ordinance application, the City has amended its adult entertainment ordinance twice; once in 2009 ("2009 Ordinance") and once in 2010 ("2010 Ordinance"). However, Plaintiffs have not filed applications under either ordinance.
Tops originally filed this action against the City alone. See Cmpl., Dkt. No. [1]. However, prior to this Court ruling on the City's Motion to Dismiss, Tops moved for leave of court to amend its complaint and to add The A Group as a party-plaintiff and the aforementioned individual defendants as parties-defendant. This Court granted leave. Dkt. No. [57].
Plaintiffs' Amended Complaint challenges the constitutionality of the following City of Forest Park actions: (1) the Adult Entertainment Ordinance, § 9-12-4 (Counts I, II, III, IV, V); (2) the Alcohol Code, § 9-2-4 (Count XI, XII, XVI; (3) the refusal by the City to recognize the "grandfathered status" of The A Group property (Counts XIII, XIV); and (4) the 180-day moratorium (Count XV). Further, Tops contends that the failure by the City to provide ascertainable standards and a reasoned basis for the denial of the alcohol license constitutes a violation of O.C.G.A. § 3-3-2 and established state law (Counts VII, XVII). Additionally, Plaintiffs challenge Defendants action as an inverse condemnation under the U.S. and Georgia Constitutions (Count VIII) as well as an intentional infliction of economic harm (Count IX). Plaintiffs also request a declaratory judgment, injunction, and attorney's fees (Counts V, VI, X).
Defendants have now renewed their motion to dismiss. Subsequently, Plaintiffs filed another Motion to Amend to add additional facts to the Amended Complaint and to add new allegations regarding the 2010 Ordinance. The Court will consider each motion in turn.
Plaintiffs first seek leave of Court to amend their Amended Complaint. See Dkt. No. [67]. Plaintiffs' proposed Second Amended Complaint seeks to supplement the earlier amended complaint to include additional facts and to provide additional challenges to the City's 2010 Adult Entertainment Ordinance. However, this Court's August 19, 2009 scheduling order limited the amendment period to 30 days after the Order, or September 18, 2009.
When a motion to amend is filed after a scheduling order deadline, Federal Rule of Civil Procedure 16 is the proper guide for determining whether a party's delay may be excused. S. Grouts & Mortars, Inc. v. 3M Co., 575 F.3d 1235, 1241(11th Cir. 2009) (citing Sosa v. Airprint Sys., 133 F.3d 1417, 1418 n.2 (11th Cir. 1998)). A scheduling order may be modified only for good cause and with the Court's consent. FED. R. CIV. P. 16(b)(4). The key to good cause is diligence. Sosa, 133 F.3d at 1419.
The Eleventh Circuit has found three factors which warrant consideration when evaluating diligence: "(1) [whether] the plaintiff failed to ascertain facts prior to filing the complaint and to acquire information during the discovery period; (2) [whether] the information supporting the proposed amendment was available to the plaintiff; and (3) even after acquiring information, [whether] the plaintiff delayed in asking for amendment." Auto-Owners Ins. Co. v. Ace Elec. Serv., Inc., 648 F. Supp. 2d 1371, 1375 (M.D. Fla. 2009) (citations omitted).
Additionally, if Plaintiffs survive the Rule 16(b)(4) challenge, they still must satisfy Federal Rule of Civil Procedure 15. Rule 15 directs the Court to "freely give leave when justice so requires." Fed. R. Civ. P. 15(a)(2). Despite an instruction that leave should be freely given when justice so requires, leave to amend is "by no means automatic." Layfield v. Bill Heard Chevrolet Co., 607 F.2d 1097, 1099 (5th Cir. 1979). The trial court has "extensive discretion" in deciding whether to grant leave to amend. Campbell v. Emory Clinic, 166 F.3d 1157, 1162 (11th Cir. 1999). A trial court may choose not to allow a party to amend "when the amendment would prejudice the defendant, follows undue delays or is futile." Id. A claim is futile if it cannot withstand a motion to dismiss. Fla. Power & Light Co. v. Allis Chalmers Corp., 85 F.3d 1514, 1520 (11th Cir. 1996); see Burger King Corp. v. Weaver, 169 F.3d 1310, 1315 (11th Cir. 1999) ().
Plaintiffs' motion to add additional facts pertaining to its Amended Complaint must fail. Under Rule 16(b)(4), Plaintiffs do not have good cause because all of the facts which Plaintiffs seek to add were known to them at the time of the Amended Complaint filing. This knowledge, coupled with the prejudice which the Defendants would experience in having to draft a third lengthy motion to dismiss, does not warrant an amendment in this case. This is not a scenario where facts were hidden or unknown-Plaintiffs simply failed to include them in their Amended Complaint. Therefore, Plaintiffs' non-2010 Ordinance factual allegations are improper and are not accepted.
Unlike the facts which relate to Plaintiffs' former claims, Plaintiffs' 2010 Amendment claims were not fully known to the Plaintiffs at the time of the Amended Complaint as that ordinance did not go into effect until March 8, 2010. Therefore, Plaintiffs do have "good cause" to bring the amendment under the scheduling order. However, the key issue here is futility under Rule 15.
Defendants argue that Plaintiffs' claims are futile because Plaintiffs do not have standing to challenge the 2010 Ordinance. Namely, they argue that because Plaintiffs have not filed for a license under the ordinance and are not actively violating the ordinance through their conduct, Plaintiffs cannot challenge the ordinance. Additionally, they argue that even if Plaintiffs had filed for a license, they would not be injured because the license would be denied pursuant to the 1500 foot distance requirement. As Plaintiffs have not challenged this requirement in the proposed Second Amended Complaint, Defendants argue that the Plaintiffs could not be injured.
Article III of the United States Constitution limits the subject matter jurisdiction of federal courts to "Cases" and "Controversies." U.S. Const. art. III, § 2. As a part of the requirement, the United States Supreme Court has made clear that "standing is an essential and unchanging part of the case-or-controversy requirement of Article III." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). Standing requires the Plaintiffs to prove: (1) an injury in fact which is (a) "concrete and particularized," and (b) "actual or imminent, not conjectural or hypothetical;" (2) a causal connection between the injury and the conduct complained of; and (3) that it is "likely, as opposed to merely speculative that the injury will be redressed by a favorable decision." Id. at 560-61 (internal quotations omitted). "Since [standing requirements] are not mere pleading requirements but rather an indispensable part of the plaintiff's case, each element must be supported in the same way as any other matter on which the plaintiff bears the...
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