### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 11-40207

WILLIAM KENON, JR.; PALM STREET PIER, INCORPORATED, Plaintiffs-Appellants

v. CITY OF SOUTH PADRE ISLAND, A Municipal Corporation, Defendant-Appellee

Appeal from the United States District Court for the Southern District of Texas USDC No. 1:09-CV-81

Before HIGGINBOTHAM, STEWART, and HAYNES, Circuit Judges. PER CURIAM: * This appeal comes from plaintiffs whose claims, t h e district court observed, “have been in a constant state of metamorphosis.” At various stages of this lawsuit, and in three versions of their co m p l a i n t , the plaintiffs have alleged violations of the First, Fifth, and Fourteenth Amendments, as well as of Texas state law. Some plaintiffs have been added; others severed. At one point, the plaintiffs sought class action certification, then abandoned that request. To quote the district court again: “Substituted p a r t ies; shifting, vanishing, and U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D Decem ber 6 , 20 11 Lyle W . Cayce Clerk

Purs uant to 5 T H C IR

. R. 47.5 , the cour t has d ete rm inedt hat this op inion sho uld not * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t for th in 5 T H C IR

. R. 47.5 .4. Case: 11-40207 Document: 00511687300 Page: 1 Date Filed: 12/06/2011No. 11-40207

modifi e d claims; and difficult-to-ascertain and -deduce pleadings have become the norm in this action rather than the exception.” On appeal, plaintiffs evidently have n a rrowed their focus to their First Amendment claim, thus waiving any due process, equal protection, or other argument. We find that the plaintiffs lack constitutional standing to bring the

1 First Amendment claim, and w e t h e r e f o r e V ACATE the district court’s summary judgment r u l i n g s on that claim and REMAND to the district court with instructions to DISMISS that claim for lack of standing.

I. The plaintiffs in this action are Wi l liam Kenon and Palm Street Pier Incorporated (h e r einafter collectively referred to as “Kenon”). William Kenon

owns National Seafoods Inco r p o r a ted, which in turn owns Palm Street Pier Incorporated. Palm Street Pier Incorporat e d owns a restaurant, the Palm Street Pier Bar and Grill, on the west-facing beach of South Padre Island, Texas. Kenon brings this suit against the City of South Padre Island (“the C i ty”) pursuant to 42 U.S.C. § 1983. The facts relevant to Kenon’s First Amendment claim are simply stated. Kenon wants to moor a boat at the docks behind the Palm Street Bar and Grill and place an advertisement f o r t h e r e s taurant on the boat’s bow in view of pedestrians and vehicles traveling west on Palm Street. Kenon has not disputed that the boat’s bow would be located over submerged land owned by the State of Texas and managed b y t he Texas General Land Office. In this case, Kenon brings a First Amendment challenge to various City ordinances regulating public signage. 2

See Lif e Partne rs Inc. v. Uni ted States , 650 F.3d 1026, 1033 n.2 (5t h Cir. 2011) ; Uni ted 1 States v. Do mi nguez -Cha ve z , 300 F. App ’x 312, 313 (5t h Cir. 2008) (p er cur iam ) (unp ublis hed)

.

It is not clea r pr eci se ly wh ich ord inanc es Ke non is chall enging. The ope rat ive 2
co m p l a i n t i n c l udes as an exhibit Sec tio n 15-8 of the City of Sout h Padr e Island Code of 2 Case: 11-40207 Document: 00511687300 Page: 2 Date Filed: 12/06/2011No. 11-40207

William Kenon filed a complaint on March 24, 2009, along with two other plai n t i f f s . In that complaint, he alleged due process and equal protection violations. The district court, without opposi t i o n f r o m any party, severed the action into three separate lawsuits. At the time of the severance, the plaintiffs successfully moved the court to grant them leave to file an amended complaint, which they did on October 6, 2 0 0 9

. Aside from adding Palm Street Pier Incorporated as a co-plaintiff, the first amended complaint made only cosmetic changes to the original complaint with respect to Kenon’s claims. On March 22, 2010, the district court granted in part the City’s motion to dismiss. The court allowed Kenon’s equal protection cl a i m t o p roceed but dismissed his due process and state law claims. Six mon t hs later, the court granted Kenon’s motion f o r l e a v e to file a second amended complaint but subject e d t h e new complaint to scrutiny. Going line by line, the court allowed only “amendments that further elabor a t e o n previously advanced factual predic a t e s o r r e t r a c t previous allegations and in the process distill issues already advanced and objected to by the defendants.” The court denied “amendments that allege new factual circumstances never previously alleged as well as legal claims never before advanced.” Among the amendments allowed was the addition of “commercial speech” and “freedom of expressions” [sic] to the list of rights that the City allegedly violated. These were the origin s o f the First Amendment claim that is the sole issue on appeal. Still, the district court “always underst o o d t his case to almost entirely arise from the Fourteenth Amendment,” so it wa s “ surprising” when on November 2, 2010, Kenon filed a motion for partial summary judgment that

Or dina nces . Sect ion 15- 8, ti tle d “Si gns Exem pt fr om Regulat ion, ” lis ts cat egori es of signs to wh ich t h e C i t y’s sign ord inanc es “s hall not app ly.” Else wh ere in the com plai nt, how ever, plai ntif fs quo te liber ally fr om s evera l o thers ect ions of the Code ’s c hapt er on signs ( Chapt er 15). Plaint iffs als o inclu ded the enti ret y of Chapt er 15 as an exhibit att ache d to thei r mo tio n for par tial sum mar y judgm ent. Me anw hile, thei r brie f on app eal ref ers only to thr ee se cti ons of Chapt er 15. For the reas ons se t out in this opi nion, sp ecif ying wh ich ord inanc es are at iss ue is im mat eria l. 3 Case: 11-40207 Document: 00511687300 Page: 3 Date Filed: 12/06/2011No. 11-40207

focused “almost exclusively

. . . on its sign ordinance claims.” The City filed its

own motion for summary judgment the same day, to which the plaintiffs did not respond. On January 19, 2011, the district court granted the City’s motion for

3
summary judgment and denied the plaintiffs’ motion for partia l s u m m a ry judgment. Plaintiffs timely appealed. Plaintiffs’ brief on appeal is devoted exclusively to Firs t A m e ndment arguments, thereby limiting our review to that claim and its relevant facts. 4 Before we reach its merits, however, we must assess plaintiffs’ standing to bring the claim. 5 II. This Court reviews questions of standing de novo, but we review for clear 6

error any facts that the district court expressly or impliedly found in the course of determining jurisdiction. 7

III. To meet the Article III standing requirement, a plaintiff must show “(1) an ‘injury in fact’ that is (a) concrete and particularized and (b) actual or imminent; (2) a causal connection between the injury and the conduct complained of; and

The plai ntif

fs did fil e a me mo rand um in sup por t of thei r mo tio n for par tial sum mar y 3 judgm ent on De cem ber 2, 2010, wi th new aff idavit s att ache d. But Novem ber 2, 2010, had been the dis tri ct cour t’s dea dli ne for dis pos itive mo tio ns. The dis tri ct cour t grant ed the City’s mo tio n to st rik e the plai ntif fs ’ me mo rand um fr om the rec ord , and the plai ntif fs ’ do not chall enge that d ete rm inati on on app eal.
In fac t, even so me com pone nts of the Firs t Ame ndm ent clai m are not pr es ente d for 4 revie w on app eal. P l a i n t i f fs wa ive thei r as- app lied argum ents , as we ll as thei r pr ior com plai nts abo ut the De velop me nt De sign ReviewBoa rd

. See Cole v . Ge n. Mo tos Corp

. , 484 F.3d717 , 721 (5t h Cir

. 2007)

. 5
See McKinl ey v. A bbott , 643 F.3d403 , 406 (5t h Cir

. 2011)

. 6
See Cole , 484 F.3dat 721

. 7
4 Case: 11-40207 Document: 00511687300 Page: 4 Date Filed: 12/06/2011No. 11-40207

(3) the likelihood that a favorable decis i o n will redress the injury.” Even in 8 First Amendment facial challenges – when federal courts relax prudential limits

on standing to allow ostensibly unha r m e d p laintiffs to bring overbreadth complaints – “Article III standing retains rigor.” 9 This Court has held that “‘[c]hilling a plaintiff’s speech is a constitutional h a r m adequate to satisfy the injury-in-fact requirement,’” but the plain t i f f s 1 0 here do not, and cannot, show that the sign ordinances have a chilling effect on their desired speec h

. T h e d e fect in the plaintiffs’ standing is that the only potential speech at issue in this case – advertising on the side of a moored boat

– would take place outside the City’s jurisdiction. Thus, the ordinances have no effect whatsoever on the plaintiffs’ proposed advertisement. The d i s t r i c t court did not err in finding that the boat’s bow would be on State-owned and

- m anaged land rather than City land. The plaintiffs acknowledged that possibility in their complaint, and they do not contest the 1 1 district court’s finding on appeal. The district court’s determination was based

on (1) Kenon’s concession in a deposition that his proposed vessel sign would be “approximately 35 feet outside the city limits,” (2) Kenon’s visual representation of where the vessel would be located, and (3) a sworn affidavit from the City Attorney stating that the proposed mooring would be outside the City’s limits. Plaintiffs have not disputed this evidence, and they do not argue that the district

Crof t v. Go ve rnor of Tex

. , 562 F.3d 735, 745 (5t h Cir. 2009) (c itin g Lujan v. Defe nder s 8 of Wil dlife , 504 U. S. 555 , 560- 61 ( 1992) ).
Fai rch il d v. Libe rty Indep. Sch. Di st. , 597 F.3d 747, 754 (5t h Cir. 2010)

. Becaus e we 9 find cons tit utio nal st andi ng lack ing, we need not reac h pr uden tial st andi ng cons ide r a t i ons . In any event , plai ntif

fs do not com plai n t h a t t he City’s sign ord inanc es are overb road

. Cf. Bates v. State Bar , 433 U. S. 350, 379- 81 (d ecli ning to app ly o v e r b r e a d t h analys is to pr ofe ss ional adver tis ing).

Id. at 754- 55 (quo ting Ho uston Chroni cl e Publ. Co. v . City of League Ci ty , 488 F.3d 1 0 613, 618 ( 5th Cir. 200 7))

.

“If the boat wo uld be outs ide the cit y lim its , then the Texas Go vernm ent Land Of fic e, 1 1 not the cit y, mi ght have juris dic tio n o ver the mat ter .” S eco nd Ame ndedCom plai nt at 9. 5 Case: 11-40207 Document: 00511687300 Page: 5 Date Filed: 12/06/2011No. 11-40207

court clearly erred in relying on it. Thus, we accept the district court’s finding that the proposed speech would not be subject to the City’s sign ordinances, and therefore Kenon does not meet any prong of the Article III standing inquiry.

IV. Because the challenged sign ordinances would not apply to the plaintiffs’ advertising, the district court’s summary judgment r u l i ngs on the First Amendment clai m a r e VACATED and REMANDED with instructions to DISMISS that claim for lack of standing.

6 Case: 11-40207 Document: 00511687300 Page: 6 Date Filed: 12/06/2011