Giovanni Carandola, Ltd. v. City of Greensboro , 258 F. App'x 512 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-2181
GIOVANNI CARANDOLA, LTD, d/b/a Christie’s
Cabaret, a North Carolina corporation; Y.K.
ENTERPRISES, INCORPORATED, d/b/a Southside
Johnnie’s, a North Carolina corporation;
REESAW, INCORPORATED, d/b/a Chester’s Premier
Gentlemen’s Club, a North Carolina
corporation; E.K.’S II, INCORPORATED, d/b/a
Harper’s II, a North Carolina corporation;
CARL EDWARD COLLINS, d/b/a Harper’s II Exotic
Car Wash; TREASURE BOX, INCORPORATED,
Plaintiffs - Appellees,
and
SIMPLY EXPLICIT, L.L.C., a North Carolina
Corporation,
Plaintiff,
versus
CITY OF GREENSBORO, a North Carolina Municipal
Corporation,
Defendant - Appellant.
No. 07-1249
GIOVANNI CARANDOLA, LTD, d/b/a Christie’s
Cabaret, a North Carolina corporation; Y.K.
ENTERPRISES, INCORPORATED, d/b/a Southside
Johnnie’s, a North Carolina corporation;
REESAW, INCORPORATED, d/b/a Chester’s Premier
Gentlemen’s Club, a North Carolina
corporation; E.K.’S II, INCORPORATED, d/b/a
Harper’s II, a North Carolina corporation;
CARL EDWARD COLLINS, d/b/a Harper’s II Exotic
Car Wash; TREASURE BOX, INCORPORATED,
Plaintiffs - Appellants,
and
SIMPLY EXPLICIT, L.L.C., a North Carolina
Corporation,
Plaintiff,
versus
CITY OF GREENSBORO, a North Carolina Municipal
Corporation,
Defendant - Appellee.
Appeals from the United States District Court for the Middle
District of North Carolina, at Durham. William L. Osteen, Senior
District Judge. (1:05-cv-01166-WLO)
Argued: September 26, 2007 Decided: December 10, 2007
Before NIEMEYER and TRAXLER, Circuit Judges, and Samuel G. WILSON,
United States District Judge for the Western District of Virginia,
sitting by designation.
Dismissed in part; affirmed in part by unpublished per curiam
opinion.
ARGUED: William Pinkney Herbert Cary, BROOKS, PIERCE, MCLENDON,
HUMPHREY & LEONARD, Greensboro, North Carolina, for
Appellant/Cross-Appellee. J. Michael Murray, BERKMAN, GORDON,
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MURRAY & DEVAN, Cleveland, Ohio, for Appellees/Cross-Appellants.
ON BRIEF: M. Blair Carr, Associate General Counsel, OFFICE OF THE
CITY ATTORNEY, Greensboro, North Carolina, for Appellant/Cross-
Appellee. Raymond Vasvari, BERKMAN, GORDON, MURRAY & DEVAN,
Cleveland, Ohio, for Appellees/Cross-Appellants.
Unpublished opinions are not binding precedent in this circuit.
3
PER CURIAM:
Faced with the threat of having to relocate or shut down under
an amendment to a City of Greensboro, North Carolina ordinance
concerning the location of sexually oriented businesses, plaintiff
adult businesses filed suit against Greensboro pursuant to 42
U.S.C. § 1983, claiming that the amended ordinance violated their
First and Fourteenth Amendment rights. Alternatively, plaintiffs
raised a pure state law claim that the amendment did not apply to
established adult businesses, and they filed a motion for summary
judgment on that single ground. The district court agreed with the
plaintiffs’ interpretation of the amendment and granted plaintiffs’
motion for summary judgment. However, the court concluded that
plaintiffs were not prevailing parties under 42 U.S.C. § 1988 and
denied their motion for attorney’s fees. Greensboro appeals the
district court’s construction of the amendment, and plaintiffs
appeal the district court’s determination that they were not
prevailing parties entitled to attorney’s fees. Following the
district court’s ruling, Greensboro amended the ordinance such that
the language at the center of the dispute is no longer in effect,
and Greensboro replaced that language with new language intended to
make it plain that the plaintiffs will have to relocate or shut
down. Plaintiffs have challenged the newly amended ordinance in
the district court, and that challenge is not currently before us.
Consequently, because the language at issue is no longer in effect,
we conclude that the question of whether the district court
properly interpreted it is moot, and a ruling by this court would
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be purely advisory. Accordingly, we dismiss that appeal. However,
we affirm the district court’s decision denying plaintiffs
attorney’s fees.
I
Greensboro has had an ordinance regulating adult businesses
since at least 1995. City of Greensboro Development Ordinance §
30-5-2.73.5. That ordinance specifies zoning districts for adult
businesses, the required minimum distance between any two adult
businesses, and the required minimum distance between adult
businesses and certain other structures such as churches and
schools. In 2001, Greensboro amended the ordinance, in part, by
increasing the required minimum distance between adult businesses
and schools and requiring nonconforming businesses to cease
operations or move. In 2004, Greensboro again amended the
ordinance by requiring nonconforming businesses to cease operations
or conform to the law by February 2006. After that amendment,
plaintiffs filed this action, seeking a declaration that they were
not nonconforming businesses or alternatively that the ordinance
violated the First and Fourteenth Amendments of the U.S.
Constitution.
The pivotal provision of the ordinance provided in pertinent
part that “[n]o sexually oriented business shall locate” within
certain distances from other adult businesses, schools, and other
specified uses. City of Greensboro Development Ordinance § 30-5-
2.73.5(B). Plaintiffs moved for summary judgment solely on a state
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law claim, arguing that the provision did not apply to them; that
it unambiguously prohibited only the affirmative act of “locating”
– actively establishing – in a location, not passively remaining
there. Greensboro argued that its ordinance prohibited both the
affirmative act of locating and the passive active of remaining.
The district court agreed with plaintiffs and granted their motion
for summary judgment. However, the district court denied
plaintiffs’ motion for attorney’s fees under 42 U.S.C. § 1988(b)
because the claim upon which they obtained relief was not
sufficiently related to their federal claim. The district court
explained that the summary judgment motion presented only the
single state law claim; no constitutional question was presented,
and so the court did not avoid, reserve or decline any
constitutional question in ruling on the motion.
After the district court’s decision, Greensboro again amended
its ordinance, using language that plaintiffs had argued would be
necessary to make the ordinance apply to their established adult
businesses. Plaintiffs then filed a new action in the district
court seeking to enjoin its enforcement on constitutional grounds.
That action is not before this court.
II
We find the issue of whether the district court properly held
that the ordinance does not apply to established adult business
locations is moot. Accordingly, we dismiss Greensboro’s appeal.
To be cognizable in a federal court, a suit must be a “real
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and substantial controversy admitting of specific relief of a
conclusive character, as distinguished from an opinion advising
what the law would be on a hypothetical state of facts.” North
Carolina v. Rice, 404 U.S. 244, 246 (1971) (citations omitted). A
case is moot if the issues presented are no longer “live” or the
parties lack a legally cognizable interest in the outcome. County
of Los Angeles v. Davis , 440 U.S. 625, 631 (1979). “[M]oot
questions require no answer,” Missouri, Kansas & Texas R. Co. v.
Ferris, 179 U.S. 602, 606 (1900), and federal courts are without
jurisdiction to answer them because federal courts do not have the
power to issue advisory opinions. United States v. Alaska S.S.
Co., 253 U.S. 113, 116 (1920). These requirements of the mootness
doctrine are rooted in Article III of the Constitution, Liner v.
Jafco, Inc., 375 U.S. 301, 306 n.3 (1964), and extend to appellate
review, Brooks v. Vassar, 462 F.3d 341, 348 (4th Cir. 2006),
whether or not the parties have raised the issue. See Rice, 404
U.S. at 246.
Neither party has had much to say about the mootness of this
appeal. Greensboro preemptively argues in a footnote that this
appeal is not moot on two grounds. First, it argues that if we
were to reverse the district court, plaintiffs would have no basis
for claiming attorney’s fees; second, it argues that reversal
“could lead to a ruling” that plaintiffs have been a nonconforming
use since 2001. Neither argument saves Greensboro’s appeal from
mootness.
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As to Greensboro’s first argument, the existence of a live
controversy concerning attorney’s fees cannot save the underlying
claim from mootness. S-1 v. Spangler, 832 F.2d 294, 297 n.1 (4th
Cir. 1987) (“a claim for costs and attorney fees . . . does not
avert mootness of the underlying action on the merits”). The
Supreme Court has made plain that an “interest in attorney’s fees
is . . . insufficient to create an Article III case or controversy
where none exists on the merits of the underlying claim.” Lewis v.
Continental Bank Corp., 494 U.S. 478, 480 (1990). As to
Greensboro’s second argument, it is not enough that a ruling here
could conceivably affect another proceeding elsewhere. “It has
long been settled that a federal court has no authority to give
opinions upon moot questions or abstract propositions, or to
declare principles or rules of law which cannot affect the matter
in issue in the case before it.” Church of Scientology of Cal. v.
United States, 506 U.S. 9, 12 (1992) (citations omitted) (emphasis
added). But that is precisely what Greensboro asks us to do here.
Greensboro would have us render an opinion concerning the
superseded provisions of an ordinance because it might benefit them
in other litigation. We are not at liberty to do so. Accordingly,
we find the issue to be moot and dismiss Greensboro’s appeal.1
1
We note that vacatur of the district court’s decision might
well be dispositive of the attorney’s fee issue. Lewis, 494 U.S.
at 480 (“[a]n order vacating the judgment on grounds of mootness
would deprive [] of its claim for attorney’s fees under 42 U.S.C.
1988 . . . , because such fees are only available to a party that
“prevails” by winning the relief it seeks”). However, because
mootness here is not by happenstance, see United States v.
Munsingwear, Inc., 340 U.S. 36, 40 (1950), and because no party has
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III
Plaintiffs assert that they were prevailing parties entitled
to attorney’s fees under 42 U.S.C. § 1988(b) as a result of the
district court’s grant of summary judgment favoring their
interpretation of the ordinance, despite never moving for or
obtaining relief on their federal claim. Whether plaintiffs are
prevailing parties is considered de novo by this court. Smyth ex
rel. Smyth v. Rivero, 282 F.3d 268, 274 (4th Cir. 2002). We
consider the purpose of § 1988(b) and the posture of the case in
the district court, and conclude that plaintiffs were not
prevailing parties entitled to recover attorney’s fees, and affirm
the district court on that issue.
Under the “American rule” each party pays its own legal fees.
This rule prevails absent explicit statutory authority. Buckhannon
Board & Care Home v. W. Va. Dep’t of Health and Human Resources,
532 U.S. 598, 602 (2001). For claims pursuant to 42 U.S.C. § 1983,
that authority is found in 42 U.S.C. § 1988(b), which reads in
pertinent part:
In any action or proceeding to enforce a provision of
section . . . 1983 [among other provisions], the court,
in its discretion, may allow the prevailing party, other
than the United States, a reasonable attorney’s fee as
part of the costs.
demonstrated equitable entitlement to the “extraordinary remedy” of
vacatur, U.S. Bancorp Mortgage Co. v. Bonner Mall P’ship, 513 U.S.
18, 26 (1994), we do not vacate the district court’s decision.
9
“Prevailing party” is defined rather broadly, and even resolution
by settlement may be sufficient if there has also been an
enforceable judgment entered by the court. Maher v. Gagne, 448
U.S. 122, 129 (1980). However, it is not enough for plaintiffs to
merely be a “catalyst” for a voluntary change in defendant’s
behavior. Buckhannon, 532 U.S. at 600. Rather, a prevailing party
is “one who has been awarded some relief by the court[.]” Id. at
603.
Even where a party prevails on a claim other than the § 1983
claim (a “non-fee” claim), that party may recover attorney’s fees
according to the rule of Smith v. Robinson, 468 U.S. 992 (1975).
Under this rule, “when the claim upon which a plaintiff actually
prevails is accompanied by a ‘substantial,’ though undecided, §
1983 claim arising from the same nucleus of facts, a fee award is
appropriate.” Id. at 1002. According to the Supreme Court’s
rationale, “Congress did not intend to have [§ 1988] extinguished
by the fact that the case was settled or resolved on a
nonconstitutional ground.” Id. at 1006-7. In contrast, where
“petitioners have presented distinctly different claims for
different relief, based on different facts and legal theories, and
have prevailed only on a non-fee claim, they are not entitled to a
fee award simply because the other claim was a constitutional claim
that could be asserted through § 1983.” Smith, 468 U.S. at 1015.
Applying these principles in Smith, the Supreme Court affirmed the
denial of attorney’s fees because the fee and non-fee claims at
issue involved distinctly different legal theories and facts, and
10
would have each called for different relief. Thus, a court must
determine whether the fee and non-fee claims are “reasonably
related,” so as to allow an award of attorney’s fees. Id. at 1002.
Given the foregoing, a party who claims to be a prevailing
party must satisfy two requirements. He must have obtained
sufficient judicial relief, and, when a non-fee claim is
dispositive, the non-fee claim must have been reasonably related to
the fee claim. We assume without deciding that the district
court’s declaratory judgment was sufficient judicial relief and
therefore do not address the first requirement further here.
As to whether the fee and non-fee claims were “reasonably
related,” we agree with the district court that the legal issues
were not tightly intertwined. Indeed, the statutory construction
issue could be, and was, cleanly isolated from all constitutional
questions. Plaintiffs moved for summary judgment on the non-fee
claim alone, putting no constitutional issue before the district
court at all.2 The Supreme Court in Maher v. Gagne, 448 U.S. 122,
2
We recognize that other circuit courts of appeals have faced
similar questions and awarded attorney’s fees: Plott v. Griffiths,
938 F.2d 164 (10th Cir. 1991), and Seaway Drive-In, Inc. v.
Township of Clay, 791 F.2d 447 (6th Cir. 1986), cert. denied, 479
U.S. 884. Both of these cases are distinguishable, and we do not
read them to contradict our decision here. In each case the
constitutional question was before the court or was expressly
considered. The fact that constitutional questions were before the
court means that the Congressional concern over penalizing
plaintiffs was arguably implicated. In Plott, the court noted that
the district court had “appropriately addressed the statutory
construction issue first.” 938 F.2d at 167. In Seaway Drive-In,
the district court “refrained from discussing the merits” that
would support a claim for fees, though it did find, at the
preliminary injunction stage, that the plaintiffs were likely to
succeed on the merits of the constitutional claims. 791 F.2d at
11
133 (1980), explained that a party may “prevail” within the meaning
of § 1988 on a wholly statutory non-civil-rights claim. This
explanation, however, is in the context of cases in which the
courts have actually declined to reach the constitutional questions
in favor of dispositive state law claims; this context is made
clearer by the legislative history relied upon in Maher:
To the extent a plaintiff joins a claim under one of the
statutes enumerated in H.R. 15460 with a claim that does
not allow attorney fees, that plaintiff, if it prevails
on the non-fee claim, is entitled to a determination on
the other claim for the purpose of awarding counsel fees.
. . . In some instances, however, the claim with fees
may involve a constitutional question which the courts
are reluctant to resolve if the non-constitutional claim
is dispositive. . . . In such cases . . . attorney’s fees
may be allowed even though the court declines to enter
judgment for the plaintiff on that claim, so long as the
plaintiff prevails on the non-fee claim arising out of a
“common nucleus of operative fact.”
H.R.Rep. No. 94-1558, p. 4, n.7 (1976) (emphasis added) (cited in
Maher, 448 U.S. at 133 n.15).
In contrast, the district court decision here did not involve
judicial abstention from constitutional issues. This means that
there is no implication of the Congressional concern over
penalizing parties who have brought valid constitutional claims
that are then rightly avoided by judges because of the “avoidance
doctrine.” Plaintiffs isolated and presented a single issue to the
court in their motion for summary judgment – the issue of whether
the ordinance applied to plaintiffs.
449.
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We also note that plaintiffs obtained only a federal court’s
interpretation of state law. It is well-established that federal
courts are not the last word on the interpretation of state laws.
Although federal courts commonly construe state statutes, federal
courts lack jurisdiction to do so authoritatively. Virginia Soc.
For Human Life v. Caldwell, 152 F.3d 268, 270 (4th Cir. 1998)
(citing United States v. Thirty-Seven Photographs, 402 U.S. 363,
369 (1971) (“[W]e lack jurisdiction authoritatively to construe
state legislation.”)). See also Brown v. Ohio, 432 U.S. 161, 167
(1977); Garner v. State of Louisiana, 368 U.S. 157, 169 (1961)
(noting that state courts “have the final authority to interpret”
state law); Railroad Commission of Tex. v. Pullman Co., 312 U.S.
496, 499-500 (1941). Since federal courts cannot bind state courts
in the interpretation of their own laws, North Carolina is not
bound to hold that the Greensboro ordinance is inapplicable to
businesses like plaintiffs.3 This point illustrates how unrelated
the legal questions were. The district court, far from deciding an
issue under the United States Constitution, was deciding only an
issue upon which the court could not even deliver a final answer.
3
We recognize that claim and/or issue preclusion could have
worked to plaintiffs’ benefit if plaintiffs had challenged
Greensboro’s enforcement in a North Carolina court before
Greensboro amended the ordinance. See, e.g., Youse v. Duke Energy
Corp., 614 S.E.2d 396 (N.C. Ct. App. 2005). However, the district
court’s declaratory judgment could not have directly interfered
with enforcement of contested statutes or ordinances except with
respect to the particular federal plaintiffs, and the State would
have been free to prosecute others who violated the statute. Doran
v. Salem Inn, Inc., 422 U.S. 922, 930-31 (1975).
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In sum, the district court was correct to note that it never
had the opportunity to abstain from a § 1983 question. It merely
decided the only question before it, which was a pure state law
question. For the purposes of the summary judgment decision, the
constitutional issues were not related at all to the state law
claim. This summary judgment decision had only a coincidental
relationship to § 1983. Therefore, the district court was correct
in denying attorney’s fees chiefly because the fee and non-fee
claims were not intertwined so as to make any abstention from
constitutional questions necessary. It follows that plaintiffs
were not prevailing parties entitled to attorney’s fees.
IV
For the foregoing reasons, we dismiss Greensboro’s appeal as
moot and affirm the district court’s decision to deny attorney’s
fees to plaintiffs.
DISMISSED IN PART;
AFFIRMED IN PART
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