15-2914-cv

Centro v. Oyster Bay

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A

SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED

BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE

32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A

PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH

THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A

COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals

2 for the Second Circuit, held at the Thurgood Marshall United

3 States Courthouse, 40 Foley Square, in the City of New York,

4 on the 22 day of August, two thousand seventeen. nd

5

6 PRESENT:

7

8 DENNIS JACOBS,

9 BARRINGTON D. PARKER,

10 Circuit Judges,

11 JANE A. RESTANI,

12 Judge.* 

13 _____________________________________

14

15 CENTRO DE LA COMUNIDAD HISPANA

16 DE LOCUST VALLEY, THE WORKPLACE

17 PROJECT

18 Plaintiffs-Counter-Defendants-Appellees,

19

20 v. 15-2914

21

22 THE TOWN OF OYSTER BAY, JOHN

23 VENDITTO, Town Supervisor of the

24 Town of Oyster Bay,

25 Defendants-Counter-Claimants-Appellants.

26 _____________________________________

27

28 * Jane A. Restani, Judge for the United States Court of

29 International Trade, sitting by designation.
1

2

3 FOR DEFENDANTS: Jonathan Sinnreich, Sinnreich

4 Kosakoff & Messina LLP, Central

5 Islip, NY.

6

7 FOR PLAINTIFFS: Arthur Eisenberg, Jordan Wells,

8 Mariko Hirose, New York Civil

9 Liberties Union Foundation, New

10 York, NY; Alan Levine, Jackson

11 Chin, Latino Justice PRLDEF, New

12 York, NY.

13

14 UPON DUE CONSIDERATION of this appeal from the United

15 States District Court of the Eastern District of New York

16 (Hurley, J.), it is hereby ORDERED, ADJUDGED, AND DECREED

17 that the order of the district court is AFFIRMED.

18 Defendants-Appellants The Town of Oyster Bay and John

19 Venditto (together, the “Town”) appeal from an order of the

20 United States District Court of the Eastern District of New

21 York (Hurley, J.) entering summary judgment in favor of

22 Plaintiffs. See Centro de La Comunidad Hispana de Locust

1

23 Valley v. Town of Oyster Bay, 128 F. Supp. 3d 597 (E.D.N.Y.

24 2015). We assume the parties’ familiarity with the

25 underlying facts, the procedural history of the case, and

26 the issues on appeal. 

The Town raises several challenges to the district court’s summary judgment 1

ruling, most of which are resolved in an opinion issued simultaneously with this

order. We resolve here only the Town’s challenge related to the district court’s

entry of a protective order. 

2
1 The Town challenges the district court’s entry of a

2 protective order that limited the information that

3 Plaintiffs — organizations advocating for and comprised of

4 day laborers — were required to produce about their day

5 laborer–members. See Centro de la Comunidad Hispana de

6 Locust Valley v. Town of Oyster Bay, 954 F. Supp. 2d 127,

7 139-45 (E.D.N.Y. 2013). The Town claims that the

8 information precluded from discovery by the protective order

9 would have allowed it “to obtain critical evidence material

10 and necessary to defend this case.” Br. of Appellants at

11 44. In fact, it argues that “the day laborers themselves are

12 clearly the single most knowledgeable potential witnesses

13 concerning virtually all of the material facts at issue.” 

14 Br. of Appellants at 44. In light of the foregoing, the

15 Town argues that the district court abused its discretion in

16 entering the protective order.2

17

In fact, the Town goes so far to argue that summary judgment denied it due 2

process in light of the protective order. Br. of Appellants at 44–45. We are

aware of no case in which summary judgment was held to violate due process

because of a discovery limitation. Regardless, the singular case cited by the

Town to support its due process argument intimates that such a due process

challenge would call for a review of the underlying discovery ruling for an abuse

of discretion. Columbus-Am. Discovery Grp. v. Atl. Mut. Ins. Co., 974 F.2d 450,

470 (4th Cir. 1992). This is the same standard we would apply to a direct review

of the entry of the protective order. Lederman v. N.Y.C. Dep’t of Parks and

Recreation, 731 F.3d 199, 202 (2d Cir. 2013). Accordingly, it is irrelevant

whether the Town’s challenge is construed as a due process challenge to the

summary judgment ruling or a direct appeal of the entry of the protective order. 

3
1 The Town’s challenge fails because the Town cannot

2 show, as it must, that even if the district court abused its

3 discretion in entering the protective order (which it did

4 not), that the protective order prejudiced the Town. See 28

5 U.S.C. § 2111; Fed. R. Civ. P. 61. We affirm on this ground

6 alone.

3

7 The Town argues that the protective order precluding

8 discovery that it sought prejudiced its ability to prove

9 that (i) Plaintiffs lacked standing; (ii) the speech

10 restricted by the Ordinance does not “concern lawful

11 activity”; and (iii) the Ordinance otherwise survives

12 Central Hudson. Because information as to the Plaintiffs’

13 members could not have materially affected the analysis of

14 those issues, there was no error in granting the protective

15 order.

16

The district court concluded that compelled disclosure of Plaintiffs’ members 3

would adversely impact Plaintiffs’ First Amendment associational rights. 954 F.

Supp. 2d at 139-45. We make no statement as to the merits of that conclusion in

light of the “fundamental and longstanding principle of judicial restraint [that]

requires courts avoid reaching constitutional questions in advance of the

necessity of deciding them.” Lyng v. Nw. Indian Cemetery Protective Ass’n, 485

U.S. 439, 445 (1988).

4
1 First, Plaintiffs do not assert injuries of their

2 members (or of day laborers) to support standing. Rather,

3 Plaintiffs’ theory of standing is premised upon injury to

4 the organizations themselves. See, e.g., Nnebe v. Daus, 644

5 F.3d 147, 156-57 (2d Cir. 2011). Discovery into their

6 membership would not have altered the relevant analysis.

7 Second, information as to the Plaintiffs’ members

8 could not have shown that the speech restricted by the

9 Ordinance does not “concern lawful activity” for purposes of

10 Central Hudson. As discussed in the majority opinion, the

11 Ordinance prohibits speech that proposes no illegal conduct,

12 which is sufficient to establish that the speech targeted by

13 the ordinance “concerns lawful activity.” See Swedenburg v.

14 Kelly, 358 F.3d 223 (2d Cir. 2004), rev’d on unrelated

15 grounds, 544 U.S. 460 (2005). Again, information as to a

16 limited set of day laborers would not have affected that

17 analysis.4

Alternatively, the Town argues that we mandated the disclosure precluded by 4

the protective order in our earlier ruling in this case, Centro de La Comunidad

Hispana de Locust Valley v. Town of Oyster Bay, 420 F. App’x 97 (2d Cir. 2011). 

The Town reads our decision too broadly. There, we faced the unusual task of

assessing the grant of a preliminary injunction with no factual record. 

Nevertheless, the parties made factual arguments. Given that we had no facts

before us, we refused to make an “entirely hypothetical” ruling, stating that for

5
1 Third, no information from Plaintiffs’ members would

2 have affected the remaining Central Hudson analysis. The

3 Town needed no information about those members to document

4 the “traffic, safety, and health” hazards caused by the day

5 laborers because the lower court (and our majority opinion)

6 credited the Town’s asserted interests in its Central Hudson

7 analysis. Nor would information about what “speech [the day

8 laborers] actually engage in,” Br. of Appellants at 45, have

9 been helpful to address Central Hudson’s narrowness

10 requirement. The Ordinance is not limited to the speech of

11 the Plaintiffs’ members specifically or to day laborers

12 generally. Rather, it broadly limits “solicitations of

13 employment” by anyone in Oyster Bay. In the main opinion,

14 the majority thereby concluded that the Ordinance is

15 unconstitutional because it could be applied to a broad

16 swath of individuals that pose no risk to the Town’s

us to resolve the question we would “have to remand for . . . a hearing to

determine, preliminarily, whether and to what degree the barred speech is

‘related to illegal activity.’” Id. at 99–100 (quoting Central Hudson, 447 U.S.

at 564). However, we then expressly held that the district court need not even

hold that hearing, if, in its discretion, it determines it unnecessary. Such a

hearing ultimately became unnecessary upon the district court’s (correct)

conclusion that the face of the Ordinance makes it clear that the restricted

speech concerns lawful activity. Consequently, the district court was correct

in determining the discovery sought was unnecessary.

6
1 asserted interests. Accordingly, there was no information

2 about Plaintiffs’ members that would have affected the

3 constitutional analysis of the Ordinance.

4 For the foregoing reasons, the ruling of the district

5 court is AFFIRMED. 

6

7 FOR THE COURT:

8 Catherine O’Hagan Wolfe, Clerk

9

10

7