Opinion
Civil Action No. 4:02-CV-458-Y (Consolidated with 4:02-CV-471-Y).
October 24, 2005
ORDER DENYING DEFENDANT'S MOTION TO ALTER OR AMEND JUDGMENT
Pending before the Court is defendant City of Kennedale, Texas ("Kennedale")'s Motion to Alter or Amend Judgment [doc. # 186], filed April 12, 2005. Having carefully considered the motion, response, and reply, the Court concludes that the motion should be DENIED.
This suit involves a series of zoning ordinances ("the ordinances") in Kennedale that affect Dreamer's, an adult bookstore owned by plaintiff-intervenor Reliable Consultants, Inc. ("Reliable"). The ordinances effectively prohibit Dreamer's from operating in its current location. Kennedale presently moves for the alteration or amendment of the Court's March 29 order granting summary judgment to Reliable on the issue of whether the ordinances are constitutional time, place, and manner restrictions as applied to Dreamer's. The Court concluded that the ordinances failed the narrow-tailoring prong of the requisite time-place-and-manner analysis, and thus were unconstitutionally applied to Reliable, because there was not substantial evidence of the secondary effects of sexually-oriented businesses selling adult products solely for off-site consumption. (March 29, 2005, Order at 21-25.) Such a showing is necessary pursuant to the Fifth Circuit's decision in Encore Videos. See 330 F.3d at 295.
Time, place, and manner restrictions on speech violate the First Amendment unless they are content-neutral, are designed to serve a substantial governmental interest, do not unreasonably limit alternative avenues of communication, and are narrowly tailored. See Encore Videos, Inc. v. City of San Antonio, 330 F.3d 288, 290-91 (5th Cir. 2003).
Altering, amending, or reconsidering a judgment pursuant to Federal Rule of Civil Procedure 59(e) is an extraordinary measure that courts should use sparingly. See Templet v. Hydrochem Inc., 367 F.3d 473, 479 (5th Cir. 2004). The remedy is so extraordinary that the standard under Rule 59(e) "favors denial of motions to alter or amend a judgment." Southern Constructors Group, Inc. v. Dynalectric Co., 2 F.3d 606, 611 (5th Cir. 1993) (citation omitted). Accordingly, relief pursuant to that rule should only be granted where the moving party has presented substantial reasons for reconsideration. See Baustian v. La., 929 F. Supp. 980, 981 (E.D. La. 1996). Consequently, a "district court has considerable discretion in deciding whether to reopen a case under Rule 59(e)." Edward H. Bohlin Co. v. Banning Co., 6 F.3d 350, 355 (5th Cir. 1993); see also Lavespere v. Niagra Mach. Tool Works, Inc., 910 F.2d 167, 174 (5th Cir. 1990).
Kennedale's motion is properly brought pursuant to Rule 59(e) because it was filed within ten days after the order of which Kennedale seeks alteration or amendment. See FED. R. CIV. P. 6(a) 59(e) (West 2005).
There are three grounds for altering or amending a judgment: (1) to accommodate an intervening change in controlling law, (2) to account for new evidence not available at trial, and (3) to correct a clear error of law or prevent manifest injustice. See Schiller v. Physicians Res. Group, Inc., 342 F.3d 563, 567 (5th Cir. 2003) (citation omitted); Benjamin Moore Co. v. Borden (in Re Benjamin Moore Co.), 318 F.3d 626, 629 (5th Cir. 2002). A Rule 59(e) motion should not be used to relitigate prior matters that should have been urged earlier or that simply have been resolved to the movant's dissatisfaction. See Templet, 367 F.3d at 479 (citation omitted); Schiller, 342 F.3d at 567; Simon v. United States, 891 F.2d 1154, 1159 (5th Cir. 1990); In re Self, 172 F.Supp.2d 813, 816 (E.D. La. 2001). Nor can such motions be used to argue a case under a new legal theory. Dial One of the Mid-South, Inc. v. Bellsouth Telcoms., Inc., 401 F.3d 603, 607 (5th Cir. 2005) (citation omitted). Kennedale rests on the last two grounds for its motion: the presentation of new evidence and the Court's clear error in concluding that the ordinances were not narrowly tailored.
There is no precise definition in the law for what constitutes "clear error," though its clear that any analysis of clear error should conform to a "very exacting standard." Hopwood v. Texas, 236 F.3d 256, 272 (5th Cir. 2000) (regarding "clearly erroneous" standard in reviewing district-court decisions generally); see also Esparza v. Telerx Mktg., EP-04-CA-0241-FM, 2005 U.S. Dist. LEXIS 12328, at *3 (W.D. Tex. June 21, 2005) (citing Lightfoot v. District of Colombia, 355 F.Supp.2d 414, 422 (D.D.C. 2005)) (incorporating "exacting standard" into district court's analysis of Rule 59(e) motions). "[D]istrict courts should have 'a clear conviction of error' before finding that a . . . judgment was predicated on clear error." Lightfoot, 355 F.Supp.2d at 422 (citing Piper v. United States DOJ, 312 F. Supp. 2d 17, 21 (citing Oneida Indian Nation v. Co. of Oneida, 214 F.R.D. 83, 98 (N.D.N.Y. 2003)). In essence, a judgment must be "dead wrong" to qualify as being clearly erroneous. Id. (citing Parts Elec. Motors, Inc. v. Sterling Elec., Inc., 866 F.2d 228, 233 (7th Cir. 1988)).
Kennedale argues that the Court's judgment was clearly erroneous since Kennedale did present substantial evidence of the secondary effects of off-site adult-entertainment businesses and because the Court engaged in a Daubert-style analysis of an informal survey Kennedale offered in support of its case. Neither of these arguments is persuasive. First, the Court has already weighed the evidence presented by Kennedale and concluded that it did not comport with the Fifth Circuit's instructions in Encore Videos. Simple disagreement by Kennedale with the Court's decision does not warrant a Rule 59(e) re-opening of the issue. See In re Self, 172 F.Supp.2d at 816. Nor has Kennedale made arguments demonstrating that the Court's interpretation of Encore Videos was "dead wrong." See Lightfoot, 355 F.Supp.2d at 422 (citing Parts Elec. Motors, 866 F.2d at 233). Should the Fifth Circuit wish to clarify its mandate, it may do so, but the Court is not in a position to ignore that mandate, and the Court's reasons for concluding that the requirements of Encore Videos are unmet remain the same.
The reference to Daubert is to the United States Supreme Court's decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), which held that courts must perform a gate-keeping function for experts and exclude testimony that is irrelevant or does not result from the application of reliable methodologies or theories to the facts of the case. See 509 U.S. at 592-95.
Moreover, the Court did not conduct a Daubert-style analysis of Kennedale's survey. Instead, the Court merely pointed out the many flaws extant in the survey's formulation and results. As previously discussed by the Court in its March 29 order, when enacting an ordinance that limits free expression, a city may rely on "any evidence that is 'reasonably believed to be relevant,'" but may not use "shoddy data or reasoning" in doing so. City of L.A. v. Alameda Books, 535 U.S. 425, 428 (2002) (citing City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 51-52 (1986). In its March 29 order the Court merely questioned whether Kennedale could reasonably rely upon a survey exhibiting as many flaws as the survey used here. Posing such a question is not tantamount to subjecting the survey to a Daubert analysis. Nor in doing so did the Court require clear proof of secondary effects or substitute its findings for those of Kennedale's legislative body. Were the Court wholly unable to question whether the data relied upon by Kennedale was shoddy, the Supreme Court's cautioning that a city cannot rely upon shoddy data would be meaningless.
Furthermore, the Court's order, fairly viewed, establishes that the Court did not base its decision upon the seeming flaws in the formulation of Kennedale's survey. Rather, the Court rested its conclusion upon the survey's failure to properly limit its enquiry to off-site adult-entertainment establishments. Simply because Kennedale disagrees with that conclusion does not compel reconsideration of the issue. Nor has Kennedale demonstrated that the Court's conclusion was clearly erroneous or dead wrong since Kennedale's arguments merely consist of its own opinion regarding the interpretation of the survey. The Court has already rendered judgment on that issue and Kennedale's opinion on the matter is not enough, alone, to demonstrate the clear erroneousness of the Court's earlier conclusion.
Kennedale also argues that newly discovered evidence supports alteration of the Court's March 29 decision. When taking up a motion under Rule 59(e) it is within the Court's discretion to view materials not available at the time of its challenged decision. See Ford Motor Credit Co. v. Bright, 34 F.3d 322, 324 (5th Cir. 1994). In deciding whether to use its discretionary authority to reopen a case, a court must balance between two competing interests: "[t]he need to bring litigation to an end and the need to render just decisions on the basis of all the facts." Lavespere, 910 F.3d at 174; see also Freeman v. County of Bexar, 142 F.3d 848, 853 (5th Cir. 1993). A district court is therefore tasked with striking the proper balance between these competing interests by considering, among other things, "the reasons for the moving party's default, the importance of the omitted evidence to the moving party's case, whether the evidence was available to the non-movant before she responded to the summary judgment motion, and the likelihood that the nonmoving party will suffer unfair prejudice if the case is reopened." Id.
The Court declines to use its discretion and reopen the instant matter based upon the newly proffered evidence. Kennedale already had an opportunity to prove its point during the summary-judgment phase of this case, but it failed even to raise a genuine issue of material fact regarding the pertinent issues. Moreover, the newly proffered evidence is countered by new evidence adduced by Reliable. Nor has Reliable had an adequate opportunity to respond to Kennedale's new evidence through discovery. Furthermore, since the discovery period in this cause has already lapsed, Reliable will undoubtedly suffer unfair prejudice should the Court reopen the case and examine the new evidence adduced by Kennedale.
This matter has been pending for over three years. At some point, there must be a conclusion to the litigation and finality accorded to the Court's judgment. Otherwise, either party could, without end, petition the Court to reopen the matter. Consequently, the Court concludes that relief pursuant to Rule 59(e) is unwarranted.
Kennedale also asks the Court to modify its March 29 order as it relates to plaintiff-intervenor Beverly van Dusen, d/b/a B V Video Enterprises d/b/a "New Video" ("B V") since Kennedale and B V settled their dispute on October 15, 2004. While Kennedale and B V may have settled their dispute prior to the Court's ruling on Kennedale's summary-judgment motion, which was directed towards B V's claims, B V did not file dismissal papers with the Court until April 7, 2005. Nor did Kennedale file a motion to withdraw those portions of its summary-judgment motion that related to B V. The Court cannot retroactively apply the dismissal. Moreover, such treatment is especially unjustified here, where neither of the parties treated their settlement agreement as being important enough to warrant notifying the Court. On March 29 B V's claims were still pending before the Court. Consequently, there is no basis for modifying the Court's order issued that same day.
Kennedale also requests clarification of the Court's March 29 order, in which the Court specifically declined to review whether the ordinances left open alternative avenues of communication since analysis of that issue was unnecessary due to the Court's ruling on narrow tailoring. Later in its order, when analyzing Reliable's permanent-injunction request, the Court stated that "Dreamer's has operated in its current location for twenty-five years and currently has no sites to which it may relocate." (March 29, 2005, Order at 28.) The Court did not mean to imply a ruling on the alternative-avenues-of-communications question; it merely intended to draw attention to the fact that Reliable owned the land on which it was located and did not presently own, nor was it renting or leasing, any other land to which it could immediately relocate. Any other potential meaning that could be gleaned from the Court's statement is unintended.
The March 29 order also stated that the permanent injunction granted therein did not prevent Kennedale from amending its ordinances to come within the requirements of the Constitution, if it could do so. ( Id.) Kennedale presently moves the Court to discuss whether Kennedale's newly proffered evidence would permit Kennedale to constitutionally pass an ordinance restricting sexually-oriented businesses such as Reliable. Kennedale also seeks clarification regarding its non-locational licensing regulations. The Court cannot grant the requested relief, however, because federal courts cannot issue advisory opinions. See Ala. State Fed'n of Labor v. McAdory, 325 U.S. 450, 461 (1945); C H Nationwide v. Norwest Bank Tex. N.A., 208 F.3d 490, 493 (5th Cir. 2000); Halder v. Standard Oil Co., 642 F.2d 107, 110 (5th Cir. 1981) (citing McAdory, 325 U.S. at 461); White v. Ascension Parish Sch. Bd., 343 F.3d 373, 377 (5th Cir. 2003).
Therefore, Kennedale's Motion to Alter or Amend Judgment [doc. # 186] is DENIED.