United States District Court, E.D. North Carolina, Western Division
C. DEVER III Chief United States District Judge.
September 8, 2016, this court ruled on cross-motions for
summary judgment by American Entertainers, LLC,
("American" or "plaintiff') and the City
of Rocky Mount, North Carolina ("the City" or
"defendant") [D.E. 47]. On September 14, 2016,
pursuant to Rule 59 of the Federal Rules of Civil Procedure,
American moved for reconsideration of this court's
summary-judgment order [D.E. 49]. On October 5, 2016, the
City responded in opposition to American's motion [D.E.
50]. As explained below, the court denies American's
motion for reconsideration.
moves for reconsideration under Rule 59(a)(2). [D.E. 49]
10-11. Rule 59(a)(2) applies after a nonjury trial, but no
trial has occurred in this case. The court construes
American's motion as a motion under Rule 59(e), which
allows the court to alter or amend its judgment. The court
has considered the motion under the governing standard. See,
e.g.. Robinson v. Wix Filtration Corp.. LLC. 599
F.3d 403, 407 (4th Cir. 2010); Zinkand v. Brown. 478
F.3d 634, 637 (4th Cir. 2007); Ingle v. Yelton. 439
F.3d 191, 197 (4th Cir. 2006); Pac. Ins. Co. v. Am.
Nat'l Fire Ins. Co.. 148 F.3d 396, 403 (4th Cir.
1998). "In general, reconsideration of a judgment after
its entry is an extraordinary remedy which should be used
sparingly." Pac. Ins. Co.. 148 F.3d at 403
(quotation omitted). Courts have recognized three grounds for
altering or amending a judgment: "(1) to accommodate an
intervening change in controlling law; (2) to account for new
evidence not available at trial; or (3) to correct a clear
error of law or prevent manifest injustice."
Zinkand. 478 F.3d at 637; see Pac. Ins. Co.
148 F.3d at 403. Rule 59(e) motions may not be used "to
raise arguments which could have been raised prior to the
issuance of the judgment, nor may they be used to argue a
case under a novel legal theory that the party had the
ability to address in the first instance." Pac. Tns
Co.. 148 F.3d at 403. Mere disagreement with the
court's decision is not a proper basis for a Rule 59(e)
motion. Hutchinson v. Statnn. 994 F.2d 1076, 1082 (4th Cir.
American takes issue with the court's statement that
"[jurisdiction in this case rests on diversity of
citizenship." Order [D.E. 47] 6. Here, jurisdiction
rested on federal-question jurisdiction for American's
federal claims and on supplemental jurisdiction for
American's state-law claims. See 28 U.S.C. §§
1331, 1367. The error, however, did not affect the
court's subject-matter jurisdiction and reconsideration
is not warranted.
American claims that the court did not address arguments that
Rocky Mount's Sexually Oriented Business Ordinance's
("SOBO") prohibition of "specified sexual
activities" was overbroad. In support, American contends
that the court did not address (1) the overbreadth of the
term "erotic touching" used in the SOBO and (2) the
SOBO's lack of an exception for mainstream or
conventional presentations of nudity or eroticism.
the term "erotic touching, " the word is used in
the SOBO in the phrase "[f]ondling or other erotic
touching." SOBO § 13-271. The court analyzed why
the word "fondling" was not unconstitutionally
overbroad, and the companion phrase "erotic
touching" survives for the same reason. See Order at
21-23. The court also analyzed why the prohibition against
performers "touching" patrons was not
unconstitutionally overbroad. Id. at 23-25.
Potentially overbroad terms concerning sexual touching are
not impermissibly overbroad if they are susceptible to a
limiting construction that requires the body part in question
to be "manipulat[ed]" and not merely
"touched." Giovani Carandola. Ltd. v. Fox.
470 F.3d 1074, 1081-84 (4th Cir. 2006). The phrase
"erotic touching" is susceptible to such a limiting
the SOBO's lack of an exception for mainstream or
conventional presentations of nudity or eroticism, such an
exception could save an otherwise overbroad prohibition on
displays of nudity or eroticism, but is not required for all
such restrictions. See Giovani Carandola. Ltd. v.
Bason. 303 F.3d 507, 516 (4th Cir. 2002) (discussing a
statute's application to "mainstream
entertainment" as an indication that a statute was not
narrowly tailored). Furthermore, a restriction on nudity or
eroticism that is limited to establishments that
"regularly feature" nudity does not cover the
incidental display of nudity or eroticism in mainstream or
conventional contexts because the phrase "regularly
features" may be construed to mean "always
features." See Id. at 517; Schultz v. Citv
of Cumberland. 228 F.3d 831, 860 (7th Cir. 2000). The
SOBO limits only the display of specified sexual activities
in establishments that "regularly feature" such
performances. SOBO § 13-271 ("Adult cabaret"
definition). Therefore, to the extent the court did not reach
certain overbreadth arguments, those arguments lack merit and
do not warrant reconsideration.
American disputes the court's characterization of the
statute at issue in Fly Fish. Inc. v. Citv of Cocoa
Beach. 337 F.3d 1301 (11th Cir. 2003), and the
court's citation to Mom N Pops. Inc. v. City of
Charlotte. 162 F.3d 1155 (4th Cir. 1998) (per curiam)
(unpublished table decision). As the court stated in its
In Fly Fish. Inc. the ordinance allowed the city to
deny a license "if the granting of the application would
violate either a statute or ordinance or an order from a
Court of law that effectively prohibits the applicant from
obtaining an adult entertainment establishment license."
Fly Fish. Inc.. 337 F.3d at 1312 (quotation
omitted). The court invalidated that ordinance because
"whether [the laws] 'effectively' prohibit the
applicant from obtaining a license" exceeded "the
limits of permissible ministerial discretion."
Id. at 1313 (quotation omitted)
Here, unlike in Fly Fish ... the SOBO does not grant
the chief of police similar discretion. There are no
requirements that the chief of police determine... whether a
law would "effectively" prohibit the
applicant's operation. Rather, the SOBO simply requires
compliance with applicable laws. Thus, American's
at 15-16. Reconsideration of the court's order is not
warranted on the basis of the court's discussion of
Fly Fish. Likewise, the court's citations to
Mom N Pops do not warrant reconsideration. See
Id. at 14-15.
American disputes the court's analysis of the challenge
to the SOBO's prohibition against persons under the age
of 21 owning a sexually oriented business, brought under the
First Amendment and the Equal Protection Clause of the
Fourteenth Amendment. The court noted that the law was
subject to rational-basis review for the purposes of
American's equal-protection challenge and that American
had failed to meet its burden of demonstrating that the law
was not rationally related to a legitimate government
interest. See Id. at 25. The court further noted
that, as for American's First Amendment challenge,
American had failed to cite any precedent showing that the
First Amendment protected the right of persons-of any age-to
own a sexually oriented business. Id. American could
not cite to such a case because no such right under the First
Amendment exists. Reconsideration of the court's order is
not warranted on these grounds.
the court DENIES American's motion for ...