Brooklyn Patriots of Los Angeles, Inc. v. City of Reno et al, No. 3:2011cv00659 - Document 34 (D. Nev. 2013)

Court Description: ORDER DENYING Plaintiff's 31 Motion for Relief from Court's Order Dismissing Complaint. Signed by Judge Larry R. Hicks on 02/23/2013. (Copies have been distributed pursuant to the NEF - KR)
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Brooklyn Patriots of Los Angeles, Inc. v. City of Reno et al Doc. 34 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 9 10 11 12 13 14 *** ) ) BROOKLYN PATRIOTS OF LOS ) ANGELES, INC., a Nevada corporation, ) ) Plaintiff, ) ) v. ) ) THE CITY OF RENO, a municipal corporation; and THE STATE OF NEVADA, ) ) ) Defendants. ) 3:11-CV-00659-LRH-WGC ORDER 15 16 This is a First Amendment case. Before the court is plaintiff Brooklyn Patriots of Los 17 Angeles, Inc.’s (“Brooklyn Patriots”) Motion for Relief from Court’s Order Dismissing Complaint 18 (#311). Defendant the City of Reno (“Reno”) has responded (#32), and Brooklyn Patriots has 19 replied (#33). 20 I. 21 Facts and Procedural History This is the third of three related lawsuits challenging Reno’s billboard ordinances. In the 22 first, Jeffrey R. Herson v. City of Reno (Herson I), Case No. 3:11-cv-403-LRH-VPC, plaintiff 23 Jeffrey Herson alleged that he was in the business of operating billboards. With the permission of 24 the owners of seven parcels in Reno, Herson hoped to erect new, permanent billboards on each 25 26 1 Refers to the court’s docket entry number. 1 parcel in order to generate income from the display of others’ speech on portions of the billboards 2 and to display his own noncommercial speech on the remaining portions. 3 The court dismissed Herson I for lack of standing on August 19, 2011, in a published 4 decision, Herson v. City of Reno, 806 F. Supp. 2d 1141 (D. Nev. 2011). On October 18, 2011, this 5 court also denied Herson’s motion for reconsideration in an unpublished order (Order #45). Before 6 the court had entered its order on Herson’s motion for reconsideration, two more lawsuits were 7 filed. The second of the three, Jeffrey R. Herson v. City of Reno (Herson II), Case No. 3:11-cv- 8 633-LRH-WGC, was filed on September 1, 2011. The Herson II complaint is nearly identical to 9 the complaint in Herson I, with some exceptions. For instance, Herson added an equal protection 10 claim and pleaded different facts to support his allegation that it would be futile to apply for a sign 11 permit. Otherwise, the facts and claims were materially identical to those in Herson I. See 12 generally Herson I, 806 F. Supp. 2d at 1143-44. Herson II was also dismissed for lack of standing, 13 this time because it appeared that Herson had never possessed a business license to engage in any 14 of the commercial activities upon which his complaint is based (Order #32). 15 This case, the third, was filed on September 13, 2011. The substance of the complaint is 16 virtually identical to that in Herson II.2 The plaintiff here, however, is Brooklyn Patriots of Los 17 Angeles, Inc., a Nevada corporation that–according to public record–was incorporated on 18 September 9, 2011. The company is owned and represented by Nevada attorney Alan R. Herson, 19 apparently a relative of the plaintiff in the Herson cases, Jeffrey R. Herson, who is listed as the 20 company’s registered agent. Like Jeffrey Herson, Brooklyn Patriots is in the business of operating 21 billboards. And like Jeffery Herson, Brooklyn Patriots desires to erect one or more new, permanent 22 billboards on certain Reno parcels in order to generate income from the display of others’ speech 23 24 25 26 2 As in Herson II, the State of Nevada was initially named as a second defendant but has been voluntarily dismissed with prejudice (#5). 2 1 on portions of the billboards and to display noncommercial speech on the remaining portions.3 Following Reno’s motion to dismiss, the court dismissed Brooklyn Patriots’ complaint for 2 3 lack of standing on largely the same grounds as in Herson II. Namely, the court found that 4 Brooklyn Patriots’ lack of a business license undermined two elements of its standing to sue, 5 causation and redressability: [T]he alleged injury suffered–the inability to display signs for profit–was neither caused by the challenged ordinances nor redressable by a decision in plaintiff’s favor. Regardless of the existence of the challenged ordinances or how the court might rule on their constitutionality, plaintiff could not have lawfully engaged in the desired activities. 6 7 8 9 (Order #30, p. 5:15-19 (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 571 (1992).) Brooklyn 10 Patriots’ has now moved for the court to grant it relief from this decision under Federal Rule of 11 Civil Procedure 60(b). 12 II. 13 Discussion Given the briefing received by the court, it will come as a surprise to the parties that the 14 Federal Rules of Civil Procedure, rather than the First Amendment, control the disposition of this 15 case. Brooklyn Patriots has moved for relief from the court’s judgment under Federal Rule of Civil 16 Procedure 60(b). Rule 60(b) “provides for reconsideration only upon a showing of (1) mistake, 17 surprise, or excusable neglect; (2) newly discovered evidence; (3) fraud; (4) a void judgment; (5) a 18 satisfied or discharged judgment; or (6) ‘extraordinary circumstances’ which would justify relief.” 19 Fuller v. M.G. Jewelry, 950 F.2d 1437, 1442 (9th Cir. 1991). A court’s errors of law may be 20 “mistakes” under Rule 60(b)(1). Liberty Mutual Insurance Co. v. E.E.O.C., 691 F.2d 438, 441 (9th 21 Cir. 1982) (‘The law in this circuit is that [a court’s] errors of law are cognizable under Rule 22 60(b).”). 23 24 A court’s errors of law are also remediable under Rule 59(e). A motion to alter or amend judgment under Rule 59(e) is available in four “basic” situations: (1) where the motion is necessary 25 26 3 One of the parcels identified by Brooklyn Patriots is also at issue in Herson I and II. 3 1 to correct “manifest errors of law or fact upon which the judgment rests;” (2) where the motion is 2 necessary to present newly discovered or previously unavailable evidence; (3) where the motion is 3 necessary to “prevent manifest injustice;” and (4) where the amendment is justified by an 4 intervening change in controlling law. Allstate Insurance Co. v. Herron, 634 F.3d 1101, 1111 (9th 5 Cir. 2011). Therefore, both Rule 59(e) and Rule 60(b)(1) allow parties to challenge the court’s 6 judgment on the basis of “manifest errors of law or fact upon which the judgment rests.” 7 Neither Rule provides standards for evaluating a motion made on this basis, though the case 8 law under Rule 59(e) is more developed and therefore illustrative. A motion to alter or amend 9 judgment under Rule 59(e) is “an extraordinary remedy which should be used sparingly.” 10 McDowell v. Calderon, 197 F.3d 1235, 1255 n.1 (9th Cir. 1999) (citation and quotation marks 11 omitted). It may not be used to “raise arguments or present evidence for the first time when they 12 could reasonably have been raised earlier in the litigation.” Kona Enterprises, Inc. v. Estate of 13 Bishop, 229 F.3d 877, 890 (9th Cir. 2000). Nor may a Rule 59(e) motion be used to relitigate old 14 matters. Zimmerman v. City of Oakland, 255 F.3d 734, 740 (9th Cir. 2001). Finally, the district 15 court enjoys “considerable discretion in granting or denying the motion.” Allstate Insurance, 634 16 F.3d at 1111. See also Latshaw v. Trainer Wortham & Co., Inc., 452 F.3d 1097, 1100 (9th Cir. 17 2006) (noting that the district court has broad discretion under Rule 60(b)(1)). 18 Here, Brooklyn Patriots has asserted two distinct arguments in support of its Motion for 19 Relief: first, that Brooklyn Patriots had standing to sue regardless of Reno’s business license 20 requirement; and second, that the business license requirement is itself unconstitutional. The first 21 argument was raised prior to the entry of judgment. In materials it filed in support of its Motion for 22 Preliminary Injunction, Brooklyn Patriots argued that the business license ordinance “provides that 23 the non-licensed party must cease all non-licensed operations. It does not state that the party may 24 not seek court orders about its constitutional rights.” (Brooklyn Patriots’ Reply #13, p. 10:4-7.) 25 Here, Brooklyn Patriots argues, “[Brooklyn Patriots] was not required to apply for [a business 26 4 1 license] in order to have standing to prosecute this case.” (Brooklyn Patriots’ Motion for Relief 2 #31, p. 3:8-10.) Since a motion challenging the court’s judgment on the basis of manifest error may 3 not merely “repeat[] legal arguments made earlier,” Brooklyn Patriots’ first argument fails. 4 Zimmerman, 255 F.3d at 740.4 Brooklyn Patriots’ second argument could reasonably have been raised before the entry of 5 6 judgment. Indeed, Brooklyn Patriots pledged in its earlier materials that “prior to applying for a 7 [billboard] building permit, [it] will obtain a business license.” (Brooklyn Patriots’ Reply #13 at p. 8 10:8-9.) Instead of taking this tack to establish standing, Brooklyn Patriots could have challenged 9 the licensing scheme as unconstitutional.5 But it did not substantively challenge the scheme’s 10 constitutionality, and a motion for relief from the court’s judgment is not the place to attempt an 11 alternative litigation strategy. See Kona Enterprises, 229 F.3d at 890 (holding that plaintiffs could 12 not use Rule 59(e) to raise, for the first time, a choice-of-law argument they could reasonably have 13 raised earlier in the litigation). Thus, both of Brooklyn Patriots’ arguments fail. 14 \\ 15 \\ 16 \\ 17 \\ 18 \\ 19 \\ 20 4 21 22 23 24 25 26 To the extent Brooklyn Patriots relies on Kaahumanu v. Hawaii, 682 F.3d 789(9th Cir. 2012) in support of its Motion for Relief, this argument, too, was made prior to the entry of judgment. (See Brooklyn Patriots’ Memorandum #28, p. 3:1-11 (citing Kaahumanu).) 5 In a throwaway line, it did: “[B]y distinguishing between business speakers and non-business speakers, the [business license] ordinance violates the First Amendment.” (Brooklyn Patriots’ Reply #13 at p. 10:17-18.) To the extent this argument is substantive, the court found it to be “entirely without merit” along with a host of other similarly brusque arguments. (Order #30 at p. 5:21-22.) This argument is therefore an improper basis on which to mount a Rule 60(b)(1) challenge. See Zimmerman, 255 F.3d at 740. 5 1 2 IT IS THEREFORE ORDERED that Brooklyn Patriots’ Motion for Relief from Court’s Order Dismissing Complaint (#31) is DENIED. 3 IT IS SO ORDERED. 4 DATED this 23rd day of February, 2013. 5 6 7 __________________________________ LARRY R. HICKS UNITED STATES DISTRICT JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 6