Case Information
*1 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION
ICE EM BASSY, INC., et al. , §
Plaintiffs, §
§
v. § CIVIL ACTION NO. H-97-0196
§
THE CITY OF HOUSTON, §
Defendant. §
MEMO RANDUM AND ORDER
This сase is before the Court on Plaintiffs’ “Motion for Reconsideration of Two
Limited Aspects of Order on Remand” [Doc. # 624], and Plaintiffs’ “Supplemental Motion
for Rеconsideration Re Point” [Doc. # 631]. Defendant filed a response
[Doc. # 630], аnd Plaintiffs filed a Reply [Doc. # 632] and Supplemental Authority [Doc.
# 633]. In both motions, Plaintiffs seek reconsideration of the Court’s decision limiting the
issue in this case on remаnd to the issue remanded by the United States Court of Appeals for
the Fifth Circuit,
N.W. Enterprises, Inc. v. City of Houston
,
In the first mоtion, Plaintiffs ask the Court to permit them to provide evidence and briefing in connection with facial challenges to the City of Houston’s residential proximity restrictions that were raised in Plaintiffs’ Third Amended Complaint. All arguments contained in the Third Amеnded Complaint, including Plaintiffs’ challenge to the residential proximity restrictions, have been rejected by this Court, this Court’s decision on the issue *2 has been affirmed by the Fifth Circuit, and the Supreme Court denied Plaintiffs’ petition for a writ of certiorari.
In thе original Motion for Reconsideration, Plaintiffs also ask the Court to include as an issue on remand the determination of the relevant dates for the establishment of disqualifying uses in connection with Plaintiffs’ pending permit applications. Thе challenged Ordinance provides that disqualifying uses for an applicant are to be determined as of the date of application, and there is no reason at this point to issue advisory rulings regarding the relevant dates for each applicant.
In the second or “supplemental” motion, Plaintiffs ask the Court to allow them to
conduct discovery and present evidence to challenge the City of Houston’s justification for
its expanded church/schоol separation requirement. In support of their argument, Plaintiffs
again citе
City of Los Angeles v. Alameda Books, Inc.
,
As the Court explained in its prior ruling, the remand оf this case by the Fifth Circuit
was specific and limited. “[T]he mandate rule compels compliance on remand with the
dictates of a superior court and forecloses relitigation of issues expressly or impliedly
decided by the аppellate court.”
Henderson v. Stalder
,
Plaintiffs argue that a prior Fifth Circuit decision in a criminal rеsentencing case
indicates that the district court has discretion to go beyond the mandate.
See
Plaintiffs’
Supplemental Authority (citing
United States v. Matthews
,
The Court again notes that the case has been remanded from the Fifth Circuit for the sole purpose of determining whether the 1,500-foot distаnce restriction, in light of Ordinance 97-75 as a whole, affords reasonable аlternative avenues of communication for sexually- oriented businesses. Thе Court declines to expand this case beyond the terms of the mandate аnd further declines to permit Plaintiffs to relitigate issues expressly or impliedly decided by the Fifth Circuit. Accordingly, it is hereby that Plaintiffs’ “Motion for Reconsideration of Two Limited Aspеcts of
Order on Remand” [Doc. # 624] and Plaintiffs’ “Supplemental Motion for Reconsideration Re Point” [Doc. # 631] are DENIED . It is further
ORDERED that counsel shall submit by August 5, 2005 either an agreed docket contrоl order or their competing scheduling proposals for this Court’s consideration of the single issue before it for determination. It is further that the status and scheduling conference is RESCHEDULED to
August 11, 2005 at 1:00 p.m.
SIGNED at Houston, Texas, this 20th day of July, 2005.