Deja Vu of Nashville v. Metro Gvt Nash

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 06a0432n.06
Filed: June 22, 2006

No. 05-5895

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

DEJA VU OF NASHVILLE, INC., et al.,

Plaintiffs-Appellants,

v. ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR
METROPOLITAN GOVERNMENT OF THE MIDDLE DISTRICT OF
NASHVILLE & DAVIDSON COUNTY, TENNESSEE

Defendant-Appellee.

/

Before: MARTIN, MOORE, and ROGERS, Circuit Judges.

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

http://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
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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”
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was overly broad. The Supreme Court denied certiorari, 535 U.S. 1073, 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 (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

1
The Ordinance now defines “sexually oriented” as follows:

“Sexually oriented” when used to modify film, movie, motion picture, videocassette,
slides, or other photographic reproductions shall mean a film, movie, motion picture,
videocassette, slides, or other photographic reproductions that regularly depicts
material which is distinguished or characterized by an emphasis on matter depicting
or describing “specified sexual activities or specified anatomical areas” offered for
observation by the patron(s) on the premises of a sexually oriented business.

Metro Code of Laws § 6.54.010(Y).
2
The relevant statute now provides:
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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

If the final decision of a board or commission revokes, suspends, or denies a license
or permit that is required prior to engaging in conduct protected by the First
Amendment to the Constitution of the United States, and either the petitioner or the
respondent requests an expedited hearing, the court shall immediately grant the writ
of certiorari, and shall hear the matter and issue its decision within forty (40) days
of the court granting the writ of certiorari.

Tenn. Code Ann. § 27-9-111(e).
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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 (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 (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 (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
No. 05-5895
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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 at 403. Following the government’s motion to dissolve

the injunction, the district court held that the constitutional problems with the Ordinance had been

rectified.3 We agree.

3
It is unclear to us why the district court stated that this Court’s dictate to maintain the
injunction until the constitutional problems were resolved, “makes Plaintiffs’ Rule 60 argument
meritless.” It appears that the district court then essentially applied the standards from Rule 60(b)(5)
— which is what this court’s “dictate” instructed the district court to do. The district court’s
statement notwithstanding, it properly went on to conclude that maintenance of the injunction should
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1. Prompt Judicial Review

The Tennessee statute that modified the discretionary common law writ of certiorari now

states:

If the final decision of a board or commission revokes, suspends, or denies a license
or permit that is required prior to engaging in conduct protected by the First
Amendment to the Constitution of the United States, and either the petitioner or the
respondent requests an expedited hearing, the court shall immediately grant the writ
of certiorari, and shall hear the matter and issue its decision within forty (40) days
of the court granting the writ of certiorari.

Tenn. Code Ann. § 27-9-111(e). Following the Supreme Court’s decision in Z.J. Gifts, the judicial

review statute clearly complies with the First Amendment’s requirement of a prompt judicial

decision. In Z.J. Gifts, the Supreme Court found that “Colorado’s ordinary ‘judicial review’ rules

offer adequate assurance, not only that access to the courts can be promptly obtained, but also that

a judicial decision will be promptly forthcoming.” 541 U.S. at 781 (emphases in original); see also

id. at 782 (“[O]rdinary court procedural rules and practices, in Colorado as elsewhere, provide

reviewing courts with judicial tools sufficient to avoid delay-related First Amendment harm.”).

Thus, “the First Amendment does not require special ‘adult business’ judicial review rules.” Id.

This holding, of course, applies where an ordinance “does not seek to censor material,” but rather

is a licensing scheme that “applies reasonably objective, nondiscretionary criteria unrelated to the

content of the expressive materials that an adult business may sell or display.” Id. at 783; see also

Deja Vu of Cincinnati, L.L.C. v. Union Township Bd. of Trustees, 411 F.3d 777, 787-88 (6th Cir.

2005) (en banc). The licensing and permit criteria, M.C.L. § 6.54.050, 6.54.080, are reasonably

no longer have prospective application, which is consistent with Rule 60(b)(5).
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objective, nondiscretionary criteria, such that the more relaxed standard of Z.J. Gifts would apply

as opposed to the more stringent standard from Freedman v. Maryland, 380 U.S. 51 (1965). See

Deja Vu of Cincinnati, 411 F.3d at 787 (noting that the Court in Freedman was confronted with a

statute employing subjective standards where a denial of a license would likely result in complete

censorship and concluding that Freedman’s “special judicial review rules” do not apply to adult

business licensing schemes).4 Thus, pursuant to this standard, the government’s expedited review

provision complies with the First Amendment.

2. Definition of “Sexually Oriented”

In Deja Vu I, we held that the Ordinance’s definition of “sexually oriented” was

unconstitutionally overbroad. 274 F.3d at 387. “A law is overbroad under the First Amendment if

it ‘reaches a substantial number of impermissible applications’ relative to the law’s legitimate

sweep.” Id. (quoting New York v. Ferber, 458 U.S. 747, 771 (1982)). As this Court has noted, the

doctrine is designed “to prevent the chilling of future protected expression.” Id. (citation omitted).

The definition reviewed in Deja Vu I defined “sexually oriented” as “any exhibition of any

motion pictures, films, or videos depicting ‘specified sexual activities’ or ‘specified anatomical

areas.’” M.C.L. § 6.54.070(Y) (1999) (amended). “‘Specified anatomical areas’” included ‘[l]ess

than completely and opaquely covered’ buttocks and female breasts.” Deja Vu I, 274 F.3d at 377

(quoting M.C.L. § 6.54.010(BB)). Based on these definitions, this Court concluded that “any movie

4
Even if we were to conclude that Freedman still applied to Metro Nashville’s Ordinance,
the Ordinance is still constitutional. Here, there are “special judicial review” rules with respect to
First Amendment cases that will guarantee a prompt judicial decision. Thus, the Ordinance passes
constitutional muster under both Z.J. Gifts and Freedman.
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or video featuring a single shot of a person’s nude or partially-covered buttocks or a woman’s

partially covered breast is a ‘sexually oriented’ film under the Ordinance, irrespective of whether

the film’s content constitutes ‘adult entertainment’ or causes the type of secondary effects . . . that

Metropolitan Nashville seeks to regulate.” Id. at 377-78. Thus, “[b]ecause this definition could

apply to a range of expression that does not cause the secondary effects that the Ordinance was

aimed to prevent, it is overbroad.” Id. at 388.

Since this Court’s ruling in Deja Vu I, the definition of “sexually oriented” has been

amended and is now considerably narrower. It now reads:

“Sexually oriented” when used to modify film, movie, motion picture, videocassette,
slides, or other photographic reproductions shall mean a film, movie, motion picture,
videocassette, slides, or other photographic reproductions that regularly depicts
material which is distinguished or characterized by an emphasis on matter depicting
or describing “specified sexual activities or specified anatomical areas”5 offered for
observation by the patron(s) on the premises of a sexually oriented business.

Metro Code of Laws § 6.54.010(Y).

The definition of “sexually oriented business,” which was not found to be constitutionally

infirm in Deja Vu I, states: “Any commercial establishment which for a fee or incidentally to another

service, regularly presents material or exhibitions distinguished or characterized by an emphasis on

matter depicting, describing or relating to ‘specified sexual activities’ or ‘specified anatomical areas’

as defined in this section for observations by patrons therein.” M.C.L. § 6.54.010(Z). In Deja Vu

I, we noted that if this definition stood alone, it would be overbroad, as it would include a hotel that

offers its guests access to an adult cable channel, but found that the Ordinance avoided this problem

5
The definition of “specified sexual activities” includes sexual intercourse and fondling of
buttocks or breast. See M.C.L. § 5.43.010(CC).
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by having four additional subsections, one of which must be satisfied, in order to fall within the

Ordinance. These four subsections define “sexually oriented bookstore,” “sexually oriented

nightclub,” “sexually oriented theater,” and “sexually oriented video store.” M.C.L. §

6.54.010(Z)(1)-(4). Thus, we held that the requirement of being a “sexually oriented business”

“narrows the Ordinance’s application to those theaters that regularly present material distinguished

or characterized by an emphasis on sex acts or particular body parts. Again, reading the definitions

together saves the parts from overbreadth.” Deja Vu I, 274 F.3d at 388.

The government took its cue from this decision by narrowing its definition of “sexually

oriented” to require that the activities be “offered for observation by the patron(s) on the premises

of a sexually oriented business.” M.C.L. § 6.54.010(Y). The definition was also narrowed such that

it no longer applies to “any exhibition of any motion pictures, films, or videos depicting ‘specified

sexual activities’ or ‘specified anatomical areas’” M.C.L. § 6.54.010(Y) (1999) (amended)

(emphases added), but rather, now applies only to those that “regularly depict material which is

distinguished or characterized by an emphasis on matter depicting or describing ‘specified sexual

activities or specified anatomical areas.’” M.C.L. § 6.54.010(Y). The district court found that these

two amendments cured the constitutional infirmities. We agree. None of this Court’s concerns from

Deja Vu I remain under the current definition. The definition means that only those activities that

regularly depict specified sexual activities or anatomical areas and that occur on the premises of a

sexually oriented business will be regulated. Our previous concerns involving, as an example, a

hotel that offers its guests an adult cable channel, no longer remain under this narrowed language.
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Moreover, Deja Vu did not discuss overbreadth in its final brief or reply brief or allege that the

definition was still unconstitutional.

B. Dismissal of the Case

Deja Vu also argues that it was improper for the district court to dismiss the case because

Deja Vu never received a trial on the merits of its constitutional challenges. In 1999, however, the

district court entered a permanent injunction following a hearing on December 21. A permanent

injunction is granted only after a trial on the merits. MOORE’S FED. PRACTICE § 65.05[3] (3d ed.

2005); see also Kallstrom, 136 F.3d at 1067 (“Where the plaintiff establishes a constitutional

violation after a trial on the merits, the plaintiff will be entitled to permanent injunctive relief upon

showing 1) a continuing irreparable injury if the court fails to issue the injunction, and 2) the lack

of an adequate remedy at law.”); see also Amoco Prod. Co. v. Village of Gambell, 480 U.S. 531, 546

n.12 (1987) (to justify permanent injunctive relief, plaintiff must show actual success on the merits);

Peabody Holding Co. v. Costain Group, PLC, 813 F. Supp. 1402, 1414 (E.D. Mo. 1993) (“The

standard for determining whether a permanent injunction should issue is essentially the same as the

standard for a preliminary injunction, except that the court determines the plaintiff’s success on the

merits rather than the plaintiff’s likelihood of success on the merits.”).

The district court’s memorandum and analysis with regard to Deja Vu’s motion for a

preliminary injunction was incorporated into the district court’s order making the preliminary

injunction permanent. In that memorandum, the district court addressed what appears to be all of

Deja Vu’s challenges to the Ordinance, including the secondary effects argument that Deja Vu now

claims it was never able to litigate. It was able to argue this point at the preliminary injunction
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stage; the district court just rejected its argument and then entered a final judgment. Whether the

district court correctly rejected Deja Vu’s claims appears not to be challenged at this stage; rather,

Deja Vu argues that it never had the opportunity to raise its secondary effects argument. This claim

is refuted by the district court’s treatment of the issue in its Memorandum.

Finally, all courts have been proceeding as if Deja Vu had raised all of its claims. The

district court specifically stated as much, as did this Court in Deja Vu I. 274 F.3d at 386 (noting that

following the dissolution of the first preliminary injunction, “[t]he plaintiffs also moved for another

preliminary injunction, raising all of their constitutional challenges to the Ordinance”). The district

court also specifically ruled that the record was closed in 1999 when it granted the permanent

injunction and made a final ruling on the merits.6 Finally, in Deja Vu I, we noted that “[t]he parties

agree that Metropolitan Nashville validly enacted the Ordinance. Additionally, Metropolitan

Nashville’s stated interests in reducing crime, open sex, and the solicitation of sex are substantial.”

Deja Vu I, 274 F.3d at 392.7 Deja Vu’s only recourse, if it wishes to challenge any unsettled aspects

of the current statute, is to file a new case in district court.

6
The Order, in relevant part, states: “In this action, as stated on the record at the hearing on
December 21, 1999, it appears that no further or additional relief is sought beyond that which has
been granted by the preliminary injunction. The preliminary injunction heretofore issued is herewith
made a permanent injunction. Accordingly, the defendants are permanently enjoined from enforcing
Chapter 6.54 of the Metropolitan Code. The applications for interim attorneys’ fees shall be deemed
final applications for fees in favor of the prevailing parties as of the conclusion of this litigation by
the entry of this order. The entry of this order shall constitute the final judgment in this action.” JA
557-58 (footnotes omitted).
7
We also “we decline[d] to tie the hands of local governments by extending City of Paducah
[v. Investment Entm’t, Inc., 791 F.2d 463 (6th Cir.1986)]’s reasoning to those regulations [such as
the one before us] aimed only at redressing the secondary effects of the sex entertainment industry.”
Deja Vu I, 274 F.3d at 393.
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III.

For the foregoing reasons, we AFFIRM the district court’s order dissolving the permanent

injunction and dismissing the case.