Keepers, Inc. v. City of Milford
807 F.3d 24
2d Cir.2015Background
- Milford, Conn., regulates sexually oriented businesses (SOBs) via Chapter 2.3; 2003 and 2007 amendments expanded licensing, inspections, and required conspicuous posting of licenses listing named individuals involved with the business.
- Keepers (formerly Sidepockets) operated as an SOB; owner changed from Regensberger to Angela Silano (sole owner/president) before the consolidated litigation.
- Keepers sued Milford challenging Chapter 2.3 on multiple constitutional grounds (including vagueness and First Amendment claims about public posting/anonymous expression); the City agreed not to enforce the ordinance while litigation proceeded.
- During discovery Keepers deposed Milford’s Rule 30(b)(6) designee (former city attorney Marilyn Lipton); Lipton frequently could not answer hypotheticals in the deposition. The City later submitted an affidavit from Police Chief Keith Mello clarifying enforcement practices.
- The district court relied on the Mello affidavit and granted summary judgment for the City on vagueness; it invalidated part of the 2007 posting requirement insofar as it required posting names of passive owners/officers not managing or controlling the SOB. Both parties appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the district court improperly considered the Mello affidavit after a Rule 30(b)(6) deposition | Keepers: Milford may not contradict its Rule 30(b)(6) testimony with a later affidavit; Mello’s affidavit contradicts Lipton’s deposition and should be struck | Milford: Rule 30(b)(6) binds facts, not legal interpretations; Lipton’s testimony showed gaps and the City may supplement/clarify; any error was harmless | Court: Affirmed — Rule 30(b)(6) testimony may be supplemented on legal interpretation and clarification; admission of the affidavit was not an abuse of discretion and any error was harmless |
| Whether the ordinance’s posting requirement (names of officers/passive owners) violates the First Amendment (anonymous expression) | Keepers: Posting names of passive owners/officers compels speech and infringes owners’ and officers’ rights to anonymous expression; the requirement fails intermediate scrutiny | Milford: Posting furthers substantial interests (identifying those responsible for SOBs for inspections and enforcement) and is narrowly tailored | Court: Did not reach merits — Keepers lacks prudential and constitutional standing to assert the First Amendment anonymity rights of third parties (owners/officers); that portion of the judgment is vacated and remanded for dismissal for lack of subject-matter jurisdiction |
| Whether Keepers has standing to assert third parties’ anonymity rights (prudential standing) | Keepers: Corporation may assert owners’ rights; overbreadth and related doctrines allow relaxation of prudential limits | Milford: Prudential rule bars asserting others’ rights absent close relationship and barrier to those parties suing; no barrier shown | Held: Prudential standing denied — Keepers gave no reason owners/officers could not sue; therefore it cannot assert their anonymity rights |
| Whether Keepers’ compelled-speech claim (its own right) is justiciable on appeal | Keepers: Alternatively argues it has its own right against compelled speech and this Court can affirm on that ground | Milford: Disputes the injury; records show sole owner/office Silano must be posted regardless, so no live controversy | Held: Moot — on appeal the specific injury no longer exists (no passive owners/officers affected), so the compelled-speech claim is dismissed as moot |
Key Cases Cited
- Reilly v. Natwest Mkts. Grp., 181 F.3d 253 (2d Cir.) (sanctioning and limits when a Rule 30(b)(6) witness is unprepared)
- Crawford v. Franklin Credit Mgmt. Corp., 758 F.3d 473 (2d Cir.) (sham-affidavit principle preventing manufactured contradictions between deposition and affidavit)
- VIP of Berlin, LLC v. Town of Berlin, 593 F.3d 179 (2d Cir.) (vagueness analysis for adult-business regulations and testing both notice and enforcement standards)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (U.S. Sup. Ct.) (Article III standing requirements: injury-in-fact, causation, redressability)
- Camreta v. Greene, 131 S. Ct. 2020 (U.S. Sup. Ct.) (jurisdictional/adverseness requirements and fitness for federal adjudication)
- Chafin v. Chafin, 133 S. Ct. 1017 (U.S. Sup. Ct.) (case-or-controversy must subsist through appeal; mootness doctrine)