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Stephen Munn & Purple Pelican, Inc. v. City of Ocean Springs

United States District Court, Fifth Circuit

May 31, 2013



LOUIS GUIROLA, Jr., Chief District Judge.

BEFORE THE COURT is the Motion for Summary Judgment [41] filed by Defendant City of Ocean Springs, Mississippi ("the City") pursuant to Federal Rule of Civil Procedure 56. Plaintiffs Stephen Munn ("Munn"), individually, and Purple Pelican, Inc. ("Purple Pelican") filed a complaint against the City seeking declaratory and injunctive relief on the grounds that the City's noise ordinance is unconstitutional. The City submits that it is entitled to judgment as a matter of law because Munn and the Purple Pelican have failed to show the existence of any genuine issue of material fact for trial. Plaintiffs have filed a response in opposition to the Motion, and the City has filed a reply. Having reviewed the parties' submissions and the relevant legal authority, the Court finds that the City's Motion for Summary Judgment should be granted.


Plaintiff Munn is the president and manager of the Purple Pelican, a lounge in Ocean Springs that features musical entertainment. According to the complaint, the Purple Pelican operates under a valid lease, and its use of the property complies with the relevant zoning restrictions. (Compl. 2 (¶3), ECF No. 1-2). Plaintiffs complain that they "have been subjected to past and present threats of criminal prosecution" under the City's noise ordinance, ( id. (¶4)), which they argue is unconstitutionally vague or overbroad. ( Id. at 3 (¶7)). They allege that the City's enforcement of the unconstitutional ordinance places Munn at risk of criminal sanctions and adversely affects the operation of the Purple Pelican. (Compl. 3 (¶¶7-8), ECF No. 1-2). According to the record, Munn was cited for a violation of the noise ordinance in November 2011 during a musical event at the Purple Pelican, but those charges were later dismissed.[1] Plaintiffs submit that the Purple Pelican "continue[s] to operate under the threat of further malicious, arbitrary, and capricious prosecution, " ( id. at 2 (¶5)), but that continued enforcement of the ordinance "will irreparably harm Plaintiffs and their ability to fulfill their obligations under [their] lease." ( Id. at 2 (3)). In their complaint, Plaintiffs allege the ordinance violates the First, Fifth, and Fourteenth Amendments to the United States Constitution, as well as Article III, Section XIV of the Mississippi Constitution. Plaintiffs filed their complaint in the Chancery Court of Jackson County, Mississippi, and the City removed it this Court.

The City now moves for summary judgment, and submits that this action is "strictly a question of law, " and that it has demonstrated the noise ordinance is constitutional under federal and state precedent. (Defs.' Mem. 13, ECF No. 42). Therefore, the City argues, it is entitled to summary judgment. The City's memorandum of law rests largely on the same arguments it presented in response to Plaintiffs' Motion for Preliminary Injunction filed earlier in these proceedings. ( See Mot. for Prelim. Inj., ECF No. 10). The Court denied that motion, which sought to enjoin any enforcement of the ordinance, on the grounds that Plaintiffs had failed to demonstrate a substantial likelihood of success on the merits. ( See Order on Mot. for Prelim. Inj., ECF No. 22).


Summary judgment is appropriate when, viewing the evidence in the light most favorable to the nonmoving party, no genuine issue of material fact exists, and the moving party is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-24 (1986); see also Fed.R.Civ.P. 56(c). A party seeking summary judgment bears the initial burden of identifying those portions of the pleadings and discovery on file, together with any affidavits, which it believes demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 325. Once the movant carries its burden, the burden shifts to the non-movant to show that summary judgment should not be granted. Id. at 324-25. The non-moving party may not rest upon mere allegations or denials in its pleadings, but must set forth specific facts showing the existence of a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256-57 (1986).


The City moves for summary judgment on the grounds that, as a matter of law, its noise ordinance is constitutional, and there is no issue of fact for trial. The City argues that the United States Supreme Court, as well as the United States Court of Appeals for the Fifth Circuit, have upheld the "reasonable person" standard used in the ordinance, citing Coates v. City of Cincinnati, 402 U.S. 611 (1971) and Reeves v. McConn, 631 F.2d 377 (5th Cir. 1980). Plaintiffs respond that the "reasonable person" standard does not make the ordinance constitutional, and that regardless of what the federal courts have held, "Mississippi has the right to define the extent of its own Constitutional Due Process protections." (Pls.' Mem. 12, ECF No. 45). They argue that the Ocean Springs ordinance is similar to an ordinance the Mississippi Supreme Court found unconstitutional in Nichols v. City of Gulfport, 589 So.2d 1280 (Miss. 1991), and that the ordinance is void because it is vague. Plaintiffs also submit that their complaint brings an as-applied challenge to the constitutionality of the ordinance in addition to a facial challenge, but as the City points out, most of Plaintiffs' arguments focus on the language of the ordinance.

The ordinance at issue states:

(a) It shall be unlawful for any person to make, cause, or, on premises under his or her legal control, permit to be made any unreasonable noise or vibration audible or perceptible within the corporate limits or police jurisdiction of the city, including the waters lying within such areas.
(b) For purposes of this section, "unreasonable noise or vibration" is defined to mean any unreasonably loud, raucous, or jarring sound or vibration which is not constitutionally protected speech in form and scope of audibility and which, under the circumstances of time, place, and manner in which it is produced and audible or perceptible, annoys, disturbs, injures, or endangers the comfort, repose, health, peace, or safety of a reasonable person of normal sensitivities within the area of audibility or perceptibility of the noise or vibration without the consent of such person.

(Pls.' Resp. Ex. 2, ECF No. 44-2). The ordinance further provides that a violation thereof can be punishable as a misdemeanor subject to a fine of up to five hundred (500) dollars or up to ...

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