TN Court of Appeals: Deja Vu again rebuffed for failure to state a claim
Deja Vu of Nashville, Inc. v. Metropolitan Government of Nashville, No. M2008-01393-COA-R3-CV, 2009 WL 3270195 (Tenn. App. Oct. 12, 2009)
Having been rebuffed twice in the 6th Circuit [Deja Vu of Nashville, Inc. v. Metropolitan Government of Nashville and Davidson County, 2009 WL 32701952001 (6th Cir. 2001) and Deja Vu v. Metro. Gov't of Nashville & Davidson Co. (Deja Vu II), 421 F.3d 417 (6th Cir. 2005)] on federal constitutional challenges to Chapter 6.54 of the Nashville’s Metropolitan Code, which regulates sexually oriented businesses, Deja Vu, Inc., et al., challenged in state court “the constitutionality of Chapter 6.54 under the Tennessee Constitution, both facially and as applied.”
In 2008, the trial court granted the government’s motion to dismiss Deja Vu’s challenge, finding that “the claims asserted by Plaintiffs were merely a ‘relabeling’ of their freedom of speech and freedom of expression claims, which were litigated in the federal courts.” The Tennessee Court of Appeals affirmed:
In their complaint, Plaintiffs provide no facts to support their “as applied” claims, instead they provide little more than averments showing that they want relief and that they believe they are entitled to relief. They also fail to satisfy the minimal pleading requirements by not citing to specific provisions of the Ordinance that allegedly violate the Tennessee Constitution as applied to Plaintiffs. Because of these deficiencies, we find that Plaintiffs have failed to state any “as applied” constitutional claims upon which relief can be granted. Therefore, we affirm the trial court’s dismissal of these claims under Tenn. R. Civ. P. 12.02(6) . . .
In stating their “reasons” for constitutional violations, Plaintiffs fail to cite to the specific provisions of the Ordinance they contend are invalid on their face. For example, one paragraph states that “[t]he Ordinance violates the privacy and liberty interests of the citizens of Metro in violation of the Tennessee Constitution.” What Plaintiffs fail to identify is which specific section or subsection they are referring to . . . Ironically, we find Plaintiffs’ assertion too vague and nebulous to support a claim upon which relief can be granted.