Cheshire Bridge Holdings, LLC v. City of Atlanta, Georgia

Case: 18-10477 Date Filed: 06/07/2019 Page: 1 of 28

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________

No. 18-10477
_______________________

D.C. Docket No. 1:15-cv-03148-TWT

CHESHIRE BRIDGE HOLDINGS, LLC,
CHESHIRE VISUALS, LLC,

Plaintiffs-Counter Defendants-Appellants,

versus

CITY OF ATLANTA, GEORGIA, DANITA M. BROWN, Chair,
MARTHA PORTER HALL, Vice Chair, LINDA SESSLER,
KARL BARNES,

Defendants-Counter Plaintiffs-Appellees.
________________________

Appeal from the United States District Court
for the Northern District of Georgia
________________________

(June 7, 2019)
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Before WILSON, JILL PRYOR and TALLMAN, * Circuit Judges.

PER CURIAM:

Cheshire Bridge Holdings, LLC and Cheshire Visuals, LLC (individually

and collectively, “Cheshire”) appeal the district court’s summary judgment order

dismissing their federal civil rights complaint against the City of Atlanta and its

individual co-defendants (collectively, the “City”). Cheshire alleges, among other

things, violations of the First Amendment’s Free Speech Clause and a petition for

writ of certiorari under Georgia law arising from the City’s application of its

zoning ordinances to Cheshire’s adult-oriented business. The City lodged

counterclaims seeking an injunction to prevent operation of an adult club. The

district court granted summary judgment to the City based in part on res judicata

and lack of redressability. The court also issued a permanent injunction to stop

Cheshire from operating its swingers club and adult novelty shop.

The district court’s opinion is well-reasoned and learned in addressing this

case’s myriad complicated issues, but we ultimately reverse its key res judicata and

redressability holdings, vacate the injunction, and remand for further consideration.

I

Cheshire owns and operates Tokyo Valentino, an adult toy and video store

*
Honorable Richard C. Tallman, United States Circuit Judge for the Ninth Circuit, sitting
by designation.
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connected to an adult videoplexx and swingers club, at 1739 Cheshire Bridge

Road, Atlanta, Georgia (the “Property”). The business’s proximity to a residential

area has been the source of conflict between the parties for more than two decades.

In November 1996, Cheshire leased the Property for use as a retail store

selling adult novelty items. The relevant Atlanta zoning ordinances in force at that

time were originally adopted in 1987 (the “1987 Code”). On December 2, 1996,

Cheshire submitted a business license application to the City for operation of the

adult store.

Later that day, the City adopted a new ordinance that changed the 1987

Code, establishing distance requirements for the operation of adult novelty stores

(the “1996 Code”). The 1996 Code repealed the relevant 1987 Code provision and

provided that the sale of adult novelty items and adult videos was now categorized

as an “adult bookstore” and thus constituted an “adult business.” The change

rendered operation of Cheshire’s desired business activities at the Property illegal

because the proposed store would be located too close to a residential

neighborhood.

Finally, on December 2, 1996, a City employee denied Cheshire’s business

license application, even though the 1996 Code was not immediately effective. On

or about January 8, 1997, a higher-level employee at the City officially denied

Cheshire’s application pursuant to the 1996 Code.

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On March 7, 1997, Cheshire appealed to the City’s Board of Zoning

Adjustment, which affirmed the denial. Cheshire then challenged the City’s denial

of its license in Georgia state superior court (the “State Court Litigation”) and

prevailed in September 1997. The application was remanded to the City for

reconsideration under the 1987 Code.

Cheshire filed a revised application for a business with a “dominant business

activity of ‘adult video sales, novelties, [and] toys.’” The City—applying the 1987

Code—granted the business license on December 9, 1997.

On December 15, 1997, the City approved a building construction permit for

Cheshire at the Property that included “Cleveland style video booths” and stated

that the “location is zoned for adult business.” However, on December 19, 1997,

the City voided that permit and issued another that removes references to video

booths and states that the “location is not approved for adult business.” Neither

permit references any portion of the 1987 or 1996 Codes or clarifies why the

December 15 permit was voided. Both permits indicate that they are related to the

State Court Litigation by providing the Georgia state court case number at the

bottom. Operating video booths showing sexually explicit content as a videoplexx

would have been blatantly illegal under any version of the City ordinances and

under the restrictive conditions attending to the business license Cheshire had

obtained.

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Cheshire opened Tokyo Valentino for business on February 21, 1998. In a

later deposition, Michael Morrison, one of Cheshire’s owners, stated that Cheshire

operated the videoplexx at the Property “from the beginning.”

On December 2, 1998, Cheshire filed suit in federal court against the City

alleging various constitutional claims and seeking monetary damages (lost

revenue) from the lengthy delay caused by the City’s denial of its business license

application under the wrong version of the City’s code (the “First Federal

Lawsuit”). The district court granted summary judgment to the City in 2001.

Cheshire thereafter operated an adult business with a variety of services

prohibited by the 1987 and the 1996 Codes at the Property, including the

videoplexx. The City took no action against those activities despite the fact that

the City sent inspectors to the Property on multiple occasions both before and after

the store’s opening.1

In 2014, Cheshire applied for building permits to renovate the building

façade at the Property so that it could begin using an “unoccupied” portion of the

building as a “social club.” After an investigation, the City withheld approval of

those permits and issued a violation correction notice that ordered Cheshire to

“cease and desist” operating an adult business at the Property, including the

videoplexx.

1
The record does not specify the exact dates of these visits.
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In 2015, Cheshire filed this action alleging that the current version of the

Code violates its First Amendment rights to freedom of speech and seeking an

injunction and a writ of certiorari under Georgia law (the “Second Federal

Lawsuit”). The City answered and filed counterclaims for, inter alia, declaratory

and injunctive relief because Cheshire was illegally operating an “adult business”

in violation of the current version of the City’s zoning ordinance (the “Current

Code”).

In all relevant versions of the Code, “adult entertainment” is defined as

“adult business,” which in turn is defined as “adult bookstore,” “adult motion

picture theater,” “adult mini-motion picture theater,” “adult cabaret” and “adult

entertainment establishment.” The relevant claim on appeal is that:

the City’s definitions of adult business are
unconstitutionally overbroad because any place where a
patron is charged to view entertainment “which consists of
persons exhibiting or modeling lingerie or similar
undergarments” is an adult entertainment establishment;
other places which are deemed adult entertainment
establishments include any commercial establishment
“wherein the entertainment consists of nude or
substantially nude persons dancing with or without music
or engaged in movements of a sexual nature or movements
simulating sexual intercourse . . . .” 2 Am. Com. at ¶ 32(b)

2
Paragraph 32 of the Amended Complaint also included the following claims that were
dismissed on their merits and have been abandoned on appeal:

(c) the City’s ordinances defining and regulating adult entertainment
fail to serve or further a compelling or substantial governmental
interest, are not unrelated to the censorship of protected speech and
expression, are not narrowly tailored to avoid unlawful infringement
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(the “Overbreadth Claim”).

After extensive discovery, the City moved for summary judgment on all

claims, and Cheshire moved only as to its own constitutional claims. The district

court granted the City summary judgment on all claims and entered a permanent

injunction that resulted in Cheshire having to cease all of its operations at the

Property.

In its analysis, the district court held that Cheshire’s claims against two of

adult business’s sub-definitions, “adult bookstore” and “adult mini-motion picture

theater,” were barred by res judicata because Cheshire could have brought First

Amendment challenges to substantially similar versions of those definitions in the

State Court Litigation or the First Federal Lawsuit. The district court further held

that, because Cheshire’s operations of the video booths would always be subject to

code violation enforcement under the “adult mini-motion picture theater” sub-

definition, its overbreadth challenge to the “adult entertainment establishment”

sub-definition was not redressable. The court also granted summary judgment in

favor of the City on Cheshire’s petition for writ of certiorari under Georgia law

because Cheshire failed to defend that claim. Cheshire timely appealed.

of speech or expression [the “Intermediate Scrutiny Claim”]; and

(d) the City’s ordinances defining and regulating adult entertainment
confer unbridled discretion to the administrative officials to punish
or stifle speech [the “Prior Restraint Claim”].
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II

We review de novo the district court’s rulings on the parties’ cross motions

for summary judgment. Owen v. I.C. Sys., Inc., 629 F.3d 1263, 1270 (11th Cir.

2011). Summary judgment is appropriate when “there is no genuine dispute as to

any material fact” and the moving party is entitled to judgment as a matter of

law. Fed. R. Civ. P. 56(a). We review the evidence and draw all reasonable

inferences in the light most favorable to the nonmovant. Owen, 629 F.3d at 1270.

III

Cheshire raises five issues on appeal: whether the district court erred when it

(1) determined res judicata barred Cheshire’s claims that the definitions of “adult

bookstore” and “adult mini-motion picture theater” were overbroad or infringed on

free speech; (2) held that Cheshire’s challenge to the definition of “adult

entertainment establishment” was not redressable; (3) applied Georgia law to deny

the petition for a writ of certiorari; (4) enjoined Cheshire’s entire operation at the

Property rather than just the unlawful, expanded use (i.e., the swingers club); and

(5) enjoined Cheshire from engaging in allegedly vague actions, including

charging patrons for “personal contact” with “devices or equipment.”

We reverse the res judicata holding, which, as we will explain, requires

vacating the redressability holding and the injunction underlying issues four and

five. We affirm judgment on the petition for writ of certiorari because it was

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waived.

A

Before we address the res judicata issue, as a threshold matter, we first

consider whether the res judicata holding is material given the remaining claims in

Cheshire’s Amended Complaint. Cheshire only properly raised three First

Amendment claims in its Amended Complaint: the Overbreadth Claim, the

Intermediate Scrutiny Claim, and the Prior Restraint Claim. The district court

granted the City summary judgment on the merits of the Intermediate Scrutiny

Claim and the Prior Restraint Claim, and Cheshire has indisputably abandoned

those claims on appeal.

The City argues that the Amended Complaint only “raised a single claim of

overbreadth, directed at two parts of the definition of ‘adult entertainment

establishment.’” In other words, the City argues Cheshire did not challenge the

definitions of “adult bookstore” or “adult mini-motion picture theater” under the

Overbreadth Claim—the only live claim on appeal. If Cheshire’s challenges to

“adult bookstore” and “adult mini-motion picture theater” were only related to the

Intermediate Scrutiny Claim and the Prior Restraint Claim and not the Overbreadth

Claim, Cheshire has not properly attacked the res judicata holding because it has

abandoned the Intermediate Scrutiny Claim and the Prior Restraint Claim on

appeal.

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Cheshire responds that the Overbreadth Claim is stated against all of the

“adult business” definition, including its many sub-definitions such as “adult

bookstore” and “adult mini-motion picture theater.” Thus, it has properly attacked

the res judicata holding by appealing the Overbreadth Claim.

We agree with Cheshire. Reading the Overbreadth Claim as directed only

against “adult entertainment establishment,” as the City argues, is overly technical

and not in conformance with our liberal pleading rules. See Fed. R. Civ. P. 8(a);

see also Palm Beach Golf Ctr.-Boca, Inc. v. John G. Sarris, D.D.S., P.A., 781 F.3d

1245, 1261 (11th Cir. 2015) (holding that a plaintiff’s short and plain statement

satisfied Rule 8(a)’s liberal pleading standard, citing the Supreme Court’s

decisions in Iqbal and Twombly). The Overbreadth Claim sufficiently challenges

as overbroad the umbrella “adult business” definition, including its various sub-

definitions such as “adult bookstore” and “adult mini-motion picture theater.”

Indeed, the Overbreadth Claim begins with the plural “the City’s definitions of

adult business are unconstitutionally overbroad because . . . .” Am. Com. at ¶ 32(b)

(emphasis added). The City was therefore on notice that the Overbreadth Claim

was stated against the whole “adult business” definition.

It is true that the only examples given in the Overbreadth Claim after this

first phrase are of an “adult entertainment establishment,” but providing one or two

examples does not foreclose a challenge against the rest of the sub-definitions of

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“adult business.” See Am. Entertainers, L.L.C. v. City of Rocky Mount, 888 F.3d

707, 714 (4th Cir. 2018) (holding that a complaint’s specific example of an

overbroad aspect of an ordinance restricting adult or sexual businesses did not limit

an overbreadth claim to that specific example; the complaint was aimed at the

broader statute, the defendant city was on notice of that, and the court thus

analyzed the term as a whole).

The City’s half-hearted arguments to the contrary do not persuade us.

Indeed, its actions and strategy in the court below—such as failing to file a motion

for a more definitive statement under Federal Rule of Civil Procedure 12(e)—and

its conduct before us counsel against construing the Overbreadth Claim narrowly

and in its favor. 3 We therefore interpret the Overbreadth Claim as including

challenges to “adult bookstore” and “adult mini-motion picture theater.”

B

i

Res judicata bars a claim whenever (1) a court with jurisdiction has (2)

issued a final judgment on the merits in a case involving (3) the same parties and

(4) the same cause of action. Shurick v. Boeing Co., 623 F.3d 1114, 1116–17 (11th

3
Additionally, to the extent the Overbreadth Claim could have been more artfully pleaded
against the entire “adult business” definition, it could have been cured with a simple amendment
to the live complaint. Thus, at least, judgment on the Overbreadth Claim was inappropriate
without first providing an opportunity to replead.
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Cir. 2010). The first three elements are not in dispute here. The sole issue is

whether the Second Federal Lawsuit involves the “same cause of action” as either

the State Court Litigation or the First Federal Lawsuit.

“The principal test for determining whether the causes of action are the same

is whether the primary right and duty are the same in each case.” Ragsdale v.

Rubbermaid, Inc., 193 F.3d 1235, 1239 (11th Cir. 1999); see also Restatement

(Second) of Judgments § 24, Comment b (1982) (underlying this standard “is the

need to strike a delicate balance between, on the one hand, the interests of the

defendant and of the courts in bringing litigation to a close and, on the other, the

interest of the plaintiff in the vindication of a just claim”). “[C]ases are generally

considered to involve the same cause of action if the latter case ‘arises out of the

same nucleus of operative fact, or is based upon the same factual predicate,’ as the

former one.” Maldonado v. U.S. Att’y Gen., 664 F.3d 1369, 1375 (11th Cir. 2011)

(quoting Ragsdale, 193 F.3d at 1238); see Batchelor-Robjohns v. United States,

788 F.3d 1280, 1286 (11th Cir. 2015). Res judicata prevents both “the precise

legal theory presented in the previous litigation,” and “all legal theories and claims

arising out of the same operative nucleus of fact.” Maldonado, 664 F.3d at 1375

(citing Pleming v. Universal–Rundle Corp., 142 F.3d 1354, 1356 (11th Cir. 1998)).

We have also held that cases involve the same cause of action if the new

litigation involves “matters that were or could have been litigated in an earlier

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suit.” Shurick, 623 F.3d at 1116. Still, to determine whether cases involve the

same cause of action, courts “must examine the factual issues that must be resolved

in the second suit and compare them with the issues explored in the first case.”

Pleming, 142 F.3d at 1356; Citibank, N.A. v. Data Lease Fin. Corp., 904 F.2d

1498, 1503 (11th Cir. 1990) (same); see Manning v. City of Auburn, 953 F.2d

1355, 1359 (11th Cir. 1992) (holding that res judicata did not apply where

appellee’s counsel admitted that the first case “did not involve the same factual

situation” as the second complaint) (quotations omitted)).

ii

The court below dispensed with the “primary right and duty” test, as well as

the “nucleus of operative facts” analysis. Instead, the court stated,

as long as the factual circumstances in existence then were
similar enough that the Plaintiffs could have brought their
constitutional claims during that suit, they will be
precluded from bringing them now. More specifically, if
the Plaintiffs could have challenged the constitutionality
of the same definitions of three types of adult businesses
back then that they do now—namely, adult bookstores,
adult entertainment establishments, and adult mini-motion
picture theaters—then their challenges must fail.

The district court proceeded to hold that because Cheshire could have

brought challenges in the prior litigation to virtually identical language in the 1987

or 1996 Codes defining “adult bookstore” and “adult mini-motion picture theater,”

its First Amendment challenges to those definitions in the Current Code were

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precluded.4 The district court stated that Cheshire could have brought the “adult

bookstore” First Amendment challenge in both the State Court Litigation and the

First Federal Lawsuit because the City had used that term, as it was defined in the

1996 Code, to deny Cheshire’s business license. The court continued that Cheshire

could have challenged the 1996 Code’s definition of “adult mini-motion picture

theater” in the First Federal Lawsuit because Cheshire “had already begun

operating their ‘videoplexx,’ whether the City knew about it or not, and it was

supposed to be regulated by the restrictions on ‘adult mini-motion picture

theaters.’” 5 The court reasoned that Cheshire could have brought the claim but

“chose not to do so,” and it would not reward that “strategic silence.”

On appeal, Cheshire argues that it could not have brought First Amendment

challenges to the definitions of “adult bookstore” or “adult mini-motion picture

theaters” in either the State Court Litigation or the First Federal Lawsuit because

the cases “did not concern themselves with the constitutional validity of . . . the

adult zoning code.” Instead, according to Cheshire, the State Court Litigation was

about whether the 1987 Code applied to Cheshire’s business license application

4
The district court also held that the “adult entertainment establishment” challenges were
not precluded because Cheshire did not have “the opportunity” to challenge that definition in the
prior cases.
5
The district court later stated that Cheshire could have challenged the “adult mini-motion
picture theater” definition in the State Court Litigation. That was error, and the City does not
defend it on appeal; the City only argues that Cheshire could have brought the challenge to
“adult mini-motion picture theater” in the First Federal Lawsuit.
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and whether the 1996 Code had “retroactive effect.” And, in turn, the First Federal

Lawsuit was to recover damages for the delay in opening Tokyo Valentino the City

caused by applying the wrong version of the Code. The court orders in those cases

appear to support Cheshire’s argument.

The City’s initial response is telling:

[Cheshire]’s opening brief states . . . what [Cheshire]
chose to litigate in [the State Court Litigation] and [the
First Federal Lawsuit]—and emphasizes that [Cheshire]
did not raise constitutional claims in those cases. Of
course not: [Cheshire] was illegally operating the adult
videoplexx, and Morrison was hiding that fact in his
paperwork because he was skimming money from the
booths and not paying taxes on it . . . .

Indeed, the City relies heavily on the “strategic silence”/equity argument, rather

than actual res judicata law in arguing for an expansive application of the doctrine,

and offers no authority supporting that argument beyond the “could have been

brought” rule. The City failed to mention the primary right and duty or the nucleus

of operative fact analysis in its briefing, but we cannot ignore that part of the

analysis.

iii

Whether res judicata applies here is a complex inquiry. We begin our

analysis with the principal test of whether the “primary right and duty” in the cases

are the same. See Manning, 953 F.2d at 1358; Ragsdale, 193 F.3d at 1239. “The

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test is one of substance, not form.” Manning, 953 F.2d at 1358; see Batchelor-

Robjohns, 788 F.3d at 1286. Generalities in defining the primary right and duty

are inappropriate; instead courts “‘must look to the factual issues to be resolved [in

the second cause of action], and compare them with the issues explored in’ the first

cause of action.” Manning, 953 F.2d at 1359 (alteration in original) (quoting

S.E.L. Maduro v. M/V Antonio De Gastaneta, 833 F.2d 1477, 1482 (11th Cir.

1987)) (providing that the argument in two employment discrimination cases that

the primary right “not to be discriminated against” and the duty “not to

discriminate” was an “oversimplification”).

Examining the facts in the record, the primary right asserted in the State

Court Litigation, as we see it, was to have the correct version of the Code applied

to Cheshire’s business license application. In the First Federal Lawsuit, the right

Cheshire claimed was to open its business without delay caused by the City’s

misapplication of the new 1996 Code. The City’s primary duty in the State Court

Litigation was to properly apply the correct version of the Code. In the First

Federal Lawsuit, the City’s duty was to not unlawfully obstruct Cheshire from

opening its business by applying the wrong version of the Code.

Here, by contrast, the primary right Cheshire asserts is to renovate the

Property and freely express itself under the First Amendment by operating a social

club as part of its business at the Property. The City’s primary duty is to properly

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apply the Current Code and not unlawfully obstruct Cheshire from operating its

business by imposing allegedly overbroad ordinances in violation of the First

Amendment. The primary rights and duties among the previous cases and this one

therefore appear incongruent. However, the answer is not clear enough in either

instance to end the analysis. Thus, as we often do in res judicata cases, we

continue to our next test: the nucleus of operative facts test.

The different nuclei of operative facts here also lead to the conclusion that

the causes of action are different. See Pleming, 142 F.3d at 1356; Manning, 953

F.2d at 1359; see also Restatement (Second) of Judgments § 24, Comment b

(“Among the factors relevant to a determination whether the facts are so woven

together as to constitute a single claim are their relatedness in time, space, origin,

or motivation, and whether, taken together, they form a convenient unit for trial

purposes.”). The nucleus of operative facts in the State Court Litigation was the

events of December 2, 1996, through January 8, 1997, at the City’s offices where

the City improperly denied Cheshire’s application for a business license using the

1996 Code rather than the 1987 Code. For the First Federal Lawsuit, the nucleus

of operative facts also began on December 2, 1996 and continued through

September 1997, when the state court entered judgment for Cheshire. At the latest,

the material facts stretch until December 9, 1997, when the City finally issued

Cheshire its business license after considering its renewed application under court

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order.

Cheshire did not open its store until February 21, 1998. The earlier

litigation, at least from the information in the record, never would have touched on

Cheshire’s operations, including whether it illegally operated the videoplexx “from

the beginning.” 6 The issuance and reissuance of building permits on December 15

and 19, 1997, were likewise not within the relevant nucleus of operative facts for

either prior case. 7

By contrast, the nucleus of operative facts in this case is the events

surrounding the investigation and withholding of Cheshire’s application for a

building permit and the City’s subsequent issuance of a “cease and desist” notice in

2014—fully 17 years after the nucleus of operative facts in the prior litigation. See

Manning, 953 F.2d at 1359. The timing and origin are so different that this new

case would not have been conveniently tried with either previous case. See

Restatement (Second) of Judgments § 24, Comment b. Indeed, it would have been

6
We cannot see how Mr. Morrison’s admission can be used against Cheshire to stretch the
nucleus of operative facts back to before the store actually opened to the public on February 21,
1998. To the extent there was construction on video booths before that date, Cheshire would not
have been violating the “adult business” restrictions in the Code simply by building them—the
violation would arise when the store opens, and it begins charging customers to use the booths.
7
The opinion in the First Federal Litigation never mentioned the 1997 building permits.
Apparently neither Cheshire, in arguing for delay and damages from denial of the business
license, nor the City ever raised the issue in that litigation. The 1997 permits were immaterial to
the opinion—the court did not need to resolve any factual questions about them. See Pleming,
142 F.3d at 1356.
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very difficult because the events leading up to this case transpired after the other

cases were closed. See Pleming, 142 F.3d at 1357 (res judicata does not apply

when the “events giving rise to the [second case] arose well after Pleming filed and

amended her complaint in the first lawsuit”); Manning, 953 F.2d at 1360 (res

judicata does not bar claims that are predicated on events that postdate the filing of

the initial complaint).

Though the parties in this case eventually delved into Cheshire’s operations

from the outset because of the City’s counterclaims and defenses, the original 1996

and 1997 business license denials are irrelevant to this case except as background.

The fact remains that the City never initiated a code enforcement proceeding to

challenge Cheshire’s operations at the Property until it issued the cease and desist

notice in 2014. At that point, the City decided to enforce its zoning ordinances

against Cheshire’s illegal, non-conforming “adult business” uses. The factual

issues that must be resolved in this case are thus very different from the factual

issues in the previous cases. See Pleming, 142 F.3d at 1356.

The record’s reflection of who was deposed in each case and the subject of

those depositions further supports our conclusion. See Manning, 953 F.2d at 1359

(comparing discovery materials to determine that the nucleus of operative facts

were different); see also Restatement (Second) of Judgments § 24, Comment b

(stating that it is “appropriate to ask how far the witnesses or proofs in the second

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action would tend to overlap the witnesses or proofs relevant to the first”). In the

First Federal Litigation, Cheshire deposed those City employees involved in

denying the business license in December 1996 and January 1997.

This time around, the parties deposed Morrison, another Cheshire owner,

and Tokyo Valentino employees and contractors about the 2014 building permit,

cease and desist notice, and current lawsuit, and Cheshire’s operations at the

Property from the time Tokyo Valentino opened to the day of the depositions. The

parties also deposed City inspectors who visited the Property before and after

Tokyo Valentino opened, and current and former City employees involved with

processing the building applications in 1997 and 2014. The information elicited in

these depositions show the factual issues to be decided are unrelated in time and

subject matter, except that they involve the same parties and zoning compliance at

the Property. See Herendeen v. Champion Intern. Corp., 525 F.2d 130, 133–35

(2d Cir. 1975) (holding that cases do not involve the same cause of action when

judgment could be rendered for the plaintiff based on evidence entirely distinct

from that which would have supported the first action, and without contradicting

any of the matters resolved by the first action). That is not enough for application

of res judicata.

Instead, where, as here, there has been a significant change in facts (actual

enforcement of the “adult business” provisions in 2014) that gives rise to a

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different legal condition (the application of the Current Code to Cheshire’s

ongoing business), res judicata does not apply. See Manning, 953 F.2d at 1359

(“Res judicata is no defense where, between the first and second suits, there has

been a[ ] . . . modification of significant facts creating new legal conditions.”)

(alteration in original) (quoting Jaffree v. Wallace, 837 F.2d 1461, 1468 (11th Cir.

1988)); see also Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 2304–09

(2016) (holding that, where “important human values are at stake,” such as the

First Amendment rights here, “even a slight change of circumstances may afford a

sufficient basis for concluding that a second action may be brought” without

violating the doctrine of claim preclusion; and that the petitioners’

“postenforcement as-applied challenge is not the ‘very same claim’ as their

preenforcement facial challenge” (citing Restatement (Second) of Judgments § 24,

Comment f )).

Therefore, because the nuclei of operative facts between the State Court

Litigation, the First Federal Lawsuit, and this case are substantially different, we

hold that res judicata does not preclude Cheshire’s Overbreadth Claim from

proceeding against either the “adult bookstore” or the “adult mini-motion picture

theater” definitions.

Our “could have been brought” rule does not alter the conclusion. It is true

that the rule is quite broad and frequently applied. See, e.g., Griswold v. Cty. of

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Hillsborough, 598 F.3d 1289, 1294 (11th Cir. 2010) (precluding claims that a party

could have raised in prior litigation); Ragsdale, 193 F.3d at 1240 (holding that a

qui tam plaintiff could have brought a claim in the previous action that he had

instead severed in order to bring the second action, and thus the nuclei of operative

facts were the same and the second case was precluded). However, we have never

held that the rule operates as a bar in a second case to all theoretical claims one

party could have raised against another at the time it filed its first case. Claims that

could have been brought are only precluded if they arise out of the same nucleus of

operative facts in the prior case. See Baloco v. Drummond Co., Inc., 767 F.3d

1229, 1247 (11th Cir. 2014) (precluding claims “arising out of the same nucleus of

operative fact which could have been raised in the prior case” (modifications

omitted) (citing N.A.A.C.P. v. Hunt, 891 F.2d 1555, 1561 (11th Cir. 1990))); see

Ragsdale, 193 F.3d at 1240 (considering whether the claims could have been

brought in a previous case to determine whether the nucleus of operative facts were

the same, not as an independent basis for res judicata). 8

The 1997 building permit saga does not alter our conclusion, either. Even if

the record supports the argument that the City applied the 1996 Code’s “adult

8
The City’s equitable “strategic silence” arguments cannot otherwise impact our res
judicata analysis. See Federated Dep’t Stores, Inc. v. Moitie, 452 U.S. 394, 401 (1981)
(providing that consistent application of res judicata “serves vital public interests beyond any
individual judge’s ad hoc determination of the equities in a particular case” in holding that there
are no equitable exceptions to the doctrine); Griswold, 598 F.3d at 1294 (same).

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mini-motion picture theater” definition to the building permit to reject the video

booths, 9 nothing in the record indicates that the City communicated that

application of the law to deny a license to Cheshire before the First Federal

Lawsuit was filed, or at any time during that action. Indeed, the face of the

December 19, 1997 building permit does not cite to any particular zoning provision

or provide any reason for the apparent changes, and Morrison testified the video

booths were removed from the permit because they were supposed to be in the

basement and the building permit was only for the main level. 10

The City argues that writing that the Property was “not approved for adult

business” in the December 19 building permit provided notice that it was applying

the “adult business” provisions to Cheshire. But the Property was never approved

for “adult business.” Cheshire’s adult novelty and video business simply did not

meet the definition of “adult business” under the 1987 Code. Moreover, the City

fails to demonstrate that Cheshire knew about the “not approved” change in the

9
We believe there is, at least, a genuine issue of material fact on this point. The City does
not identify any testimony indicating that the City actually applied the “adult mini-motion
picture theater” definition to alter the building permit, and the testimony of the various City
officials is inconsistent regarding why the change was made (i.e., whether it was because the
drawing did not accurately reflect what was actually there before demolition and construction,
because the booths were not in Cheshire’s business license application, or because the booths
would not have been allowed under the Code if built).
10
The City’s arguments to its zoning board earlier in this litigation that the 1997 building
permits did not include construction in the basement, and its failure to argue that the video
booths were removed from the permit because it would have violated the “adult mini-motion
picture theater” prohibition in the Code, seem to support Morrison’s understanding.
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bottom corner of the permit. And the City has cited no authority to support the

proposition that a change in a building permit for interior alterations, or stating that

a property is not zoned for a particular activity on such a permit, has any legal

ramifications or is an actual enforcement action.

Barring a claim where the plaintiff apparently had no knowledge that code

provisions had been applied against it, and where there is a genuine issue of

material fact on whether the code provision was actually enforced against it at all,

would encourage “kitchen-sink” claims against statutory schemes and is a bridge

too far. See Hellerstedt, 136 S. Ct. at 2308.

The City was the only party with knowledge that it had applied or intended

to apply the 1996 Code to forbid operation of video booths by Cheshire—if it in

fact did so. Armed with that knowledge and facts indicating Cheshire intended to

act illegally, the City had every reason to raise the issue to the district court in the

First Federal Litigation. The City’s silence further demonstrates that the nucleus of

operative facts at issue in the First Federal Lawsuit did not include the December

1997 building permit episode.

Ultimately, the City attempts to find an elephant in a mousehole. Statements

written in tiny font in a corner or in unclear handwriting in a building permit, about

which there are conflicting explanations, and that were not discussed in the

previous litigation, cannot serve to preclude facially valid constitutional claims.

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Because we find that the primary rights and duties are different, the nuclei of

operative facts are different, and the pre-enforcement claim that theoretically could

have been brought is different than the new post-enforcement claim, we hold that

no aspect of Cheshire’s Overbreadth Claim is precluded under res judicata. The

district court’s erroneous holding to the contrary, therefore, is reversed.

C

It follows that we must reverse the district court’s determination that the

Overbreadth Claim as stated against the “adult entertainment establishment”

definition is not redressable. The district court reasoned that because “adult mini-

motion picture theater” would still apply to Cheshire even if it found the “adult

entertainment establishment” definition was overbroad, the alleged harm suffered

by Cheshire on account of the “adult entertainment establishment” definition could

not be remedied.

However, because we have reversed the res judicata holding as to “adult

mini-motion picture theater” and there will be a live claim involving that definition

on remand, there may be a redressable harm at the end of the litigation from the

challenge to “adult entertainment establishment.” I.L. v. Alabama, 739 F.3d 1273,

1279 (11th Cir. 2014) (injury redressable where there is “a substantial likelihood

that the relief requested will redress the injury claimed” (internal quotation marks

omitted) (quoting Duke Power Co. v. Carolina Envtl. Study Grp., Inc., 438 U.S.

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59, 75 n.20 (1978))).

The City’s alternative argument that Cheshire has no injury-in-fact from

certain aspects of the “adult entertainment establishment” definition because

Cheshire does not currently operate a business that utilizes lingerie modeling or

nude dancing is unavailing. The City withheld approval of the building permits

and issued the 2014 cease and desist notice because Cheshire was operating an

adult business illegally at the Property. Moreover, the City’s counterclaims alleged

that Cheshire has not maintained a lawful, conforming use. The evidence now in

the record appears to support that claim in part because Cheshire indisputably

operated, at different times, various types of “adult entertainment establishments”

at the Property. It could again, even if it was not at the time of the district court

order. There is an actual injury resulting from the definition of “adult

entertainment establishment,” or at least a credible threat of enforcement under that

sub-definition of “adult business.” See Susan B. Anthony List v. Driehaus, 573

U.S. 149, 159 (2014) (providing for standing to challenge a statutory provision

where there is a credible threat of enforcement); Wollschlaeger v. Governor, Fla.,

848 F.3d 1293, 1303–04 (11th Cir. 2017) (en banc). 11

11
The City relies on CAMP Legal Defense Fund, Inc. v. City of Atlanta, 451 F.3d 1257,
1273 (11th Cir. 2006), and other cases to argue that Cheshire has not shown an injury from
particular clauses within the subdefinition of “adult entertainment establishment.” But Cheshire
need not show that it has standing to challenge every clause of every subdefinition in the Code.
The City enforced the overarching provision, “adult business,” against Cheshire. Cheshire has
met its burden by showing it credibly fears losing its right to operate because under several,
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Cheshire has suffered an injury, and its Overbreadth Claim is redressable. It

may litigate the Overbreadth Claim against the “adult entertainment establishment”

definition.

D

We affirm the district court’s grant of summary judgment on Cheshire’s

petition for a writ of certiorari under Georgia law because Cheshire has waived all

arguments related to that count in the Amended Complaint. The City moved for

summary judgment on the petition for writ of certiorari count, and Cheshire did not

respond to that portion of the motion. We hold that, in failing to respond, Cheshire

waived the claim. Cita Tr. Co. AG v. Fifth Third Bank, 879 F.3d 1151, 1156 (11th

Cir. 2018) (“As a general matter, issues not raised in the district court and raised

for the first time in an appeal will not be considered by this Court.” (quotation

omitted)); see Transamerica Leasing, Inc. v. Inst. of London Underwriters, 267

F.3d 1303, 1308 n.1 (11th Cir. 2001). Indeed, the argument in Cheshire’s briefing

to us citing Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938), Hanna v. Plumer, 380

U.S. 460, 465 (1965), and the application of federal procedural law was never

mentioned to the trial court.

but not all, subdefinitions the City considers it to be a prohibited “adult business.” That is
enough under CAMP, which holds that courts have “the independent obligation . . . to ensure a
case or controversy exists as to each challenged” substantive provision in an ordinance. See id.
That obligation does not extend to every clause of each substantive provision challenged.
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E

Cheshire’s Overbreadth Claim against the Code’s definition of “adult

business” is still live in multiple respects. Because the district court relied upon

the definition of “adult business” and its various sub-definitions to issue the

injunction, the injunction cannot lie. Therefore, we vacate the district court’s

injunction, which moots the final two issues presented on appeal.

IV

The district court’s judgment is REVERSED and VACATED as to the res

judicata, redressability, and the injunction-related issues. The judgment on the

petition for a writ of certiorari is AFFIRMED. The case is REMANDED for

further consideration. Each party shall bear its own costs.

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