United States Court of Appeals
For the First Circuit
No. 08-1305
NASER JEWELERS, INC.,
Plaintiff, Appellant,
v.
CITY OF CONCORD, NEW HAMPSHIRE,
Defendant, Appellee.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Steven J. McAuliffe, U.S. District Judge]
Before
Lynch, Chief Judge,
Boudin and Lipez, Circuit Judges.
John F. Winston, Winston & Bragg, Stephen H. Roberts, and
Hoefle Phoenix & Gormley, P.A., on brief for appellant.
John T. Alexander, Charles P. Bauer, and Ransmeier &
Spellman on brief for appellee.
August 12, 2008
LYNCH, Chief Judge. Naser Jewelers, Inc. appeals an
order of the district court granting summary judgment to the city
of Concord, New Hampshire.
Earlier this year in Naser Jewelers, Inc. v. City of
Concord, 513 F.3d 27 (1st Cir. 2008), this court affirmed the
denial of Naser's ("NJI"'s) motion for a preliminary injunction
against the enforcement of a city ordinance prohibiting all
Electronic Messaging Centers ("EMCs"). On de novo review of the
First Amendment issue, id. at 32, we held that plaintiff had no
probability of success on the merits. We held that Concord's
ordinance "satisfies the requirements for constitutionality"
because it "is a content-neutral regulation, it serves substantial
governmental interests, it is narrowly tailored, and it leaves open
reasonable alternative channels of communication." Id. at 34. We
further held that "NJI has no probability of success on the merits
of its claim," and we declined to address the other factors in the
preliminary injunction determination. Id. at 37. NJI's petition
for rehearing and rehearing en banc was denied, and it did not seek
review in the Supreme Court.
Before our decision but after the district court
originally denied NJI's motion for a preliminary injunction,
Concord moved for summary judgment on June 29, 2007. It supported
its motion with affidavits from eight city councilors who stated
that they adopted the ordinance because they believed it would
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"promote the community welfare by fostering aesthetics and
pedestrian and traffic safety." The city also supported its motion
with an expert report from Dr. Alison Smiley discussing distraction
to drivers caused by dynamic signs like EMCs.
NJI filed an objection to summary judgment on August 1,
2007, repeating the arguments and exhibits that had been considered
during the preliminary injunction hearing but offering no new
evidence in opposition to summary judgment.1
On January 30, 2008, after our opinion in Naser Jewelers,
the district court granted the city's motion for summary judgment,
noting there were no disputes as to material facts. The court held
that plaintiff cannot prevail on its claim because "as a matter of
law, the City's regulation of electronic signs is content-neutral
1
Plaintiff includes in its appendix on appeal a portion of
expert testimony from a different trial claiming that studies have
not properly measured the effect of distractions like EMCs on
"actual driving performance"; information about a Wisconsin law
permitting electronic signs; and an article about Dr. Smiley's
research finding that the effects of smoking marijuana on driving
are overrated. Defendant argues that these documents should not be
considered by this court because they were not included as part of
NJI's objection to summary judgment and were not properly
authenticated by and attached to affidavits as required by Fed. R.
Civ. P. 56(e). Instead, the documents in question were attached to
plaintiff's motion to exclude expert testimony, which was part of
the proceedings involving plaintiff's motion for a preliminary
injunction and was filed several weeks before defendant's motion
for summary judgment. Because these documents were never before
the district court as part of the motion for summary judgment,
under Fed. R. App. P. 10(a), they are not properly before us. See
Gillis v. SPX Corp. Individual Account Ret. Plan, 511 F.3d 58, 64
n.7 (1st Cir. 2007). Even if the documents were before us, they
contribute nothing to plaintiff's case.
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and narrowly tailored to serve significant governmental interests,
and allows for reasonable alternative channels of communication."
NJI appeals.
The district court was plainly correct. On the record
before it and absent any intervening contrary case law from the
Supreme Court, the district court correctly relied on our prior
decision as binding.
Under these circumstances, the law of the case doctrine
applies. Under that doctrine, "when a court decides upon a rule of
law, that decision should continue to govern the same issues in
subsequent stages in the same case." Arizona v. California, 460
U.S. 605, 618 (1983); see also, e.g., Commercial Union Ins. Co. v.
Walbrook Ins. Co., 41 F.3d 764, 769 (1st Cir. 1994). Narrow
exceptions to the doctrine exist if the initial ruling was made on
an inadequate record or was designed to be preliminary; if there
has been a material change in controlling law; if there is newly
discovered evidence bearing on the question; and if it is
appropriate to avoid manifest injustice. Ellis v. United States,
313 F.3d 636, 647-48 (1st Cir. 2002); see also United States v.
Moran, 393 F.3d 1, 7 (1st Cir. 2004); Cohen v. Brown Univ. (Cohen
II), 101 F.3d 155, 168 (1st Cir. 1996). None of these exceptions
apply here.
The doctrine applies in these circumstances even though
our prior decision was a denial of a preliminary injunction and
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this appeal concerns entry of summary judgment. We have held that
the doctrine applies when this court has previously ruled on a
motion for a preliminary injunction and "the record before the
prior panel was 'sufficiently developed and the facts necessary to
shape the proper legal matrix we[re] sufficiently clear.'" Cohen
II, 101 F.3d at 169 (quoting Cohen v. Brown Univ. (Cohen I), 991
F.2d 888, 904 (1st Cir. 1993)). Although conclusions regarding
preliminary injunctions are "to be understood as statements as to
probable outcomes," id. (citing A.M. Capen's Co. v. Am. Trading &
Prod. Corp., 74 F.3d 317, 322 (1st Cir. 1996); Narragansett Indian
Tribe v. Guilbert, 934 F.2d 4, 6 (1st Cir. 1991)), "[t]he concern
informing this caveat arises when we are asked to rule on the
propriety of a district court's grant of a preliminary injunction
. . . without benefit of full argument and a well-developed
record," id. That situation was not present in this case.
Our opinion in Naser Jewelers came after both sides had
produced evidence and the district court had made findings and
conclusions. The record did not significantly change on summary
judgment, except perhaps to make Concord's case stronger. In fact,
plaintiff presented no new evidence in its opposition to summary
judgment, nor did it file a Rule 56(e) affidavit in opposition to
summary judgment. The arguments and evidence presented by NJI in
this appeal are essentially the same ones we previously
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considered.2 Cf. Esso Standard Oil Co. v. López-Freytes, 522 F.3d
136, 143-44 (1st Cir. 2008) (reconsidering issue after plaintiff
presented new evidence); A.M. Capen's Co. v. Am. Trading & Prod.
Corp., 202 F.3d 469, 473 (1st Cir. 2000) (revisiting legal issue
when prior opinion made clear it was only a statement of probable
outcomes and "was not intended to be binding").
NJI's primary argument is that it thinks this court got
it wrong in our earlier decision. As in Cohen II, "we decline the
invitation to this court to 'change its mind.' The precedent
established by the prior panel is not clearly erroneous; it is the
law of this case and the law of this circuit." Cohen II, 101 F.3d
at 169. If NJI wanted a remedy, its recourse, which it did not
pursue, was to seek review in the Supreme Court.
Affirmed.
2
In its brief, plaintiff makes passing references to prior
restraint and as-applied claims. These claims do not appear in
plaintiff's original complaint (although plaintiff mislabels some
of its facial claims as "as applied" claims), nor has there been
any attempt at developing them here. The issues are therefore
waived. United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990)
("[I]ssues adverted to in a perfunctory manner, unaccompanied by
some effort at developed argumentation, are deemed waived.").
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