     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 22nd day of August, two thousand seventeen.
 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.1      See Centro de La Comunidad Hispana de Locust

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.

     1
        The Town raises several challenges to the district court’s summary judgment
     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
     2
       In fact, the Town goes so far to argue that summary judgment denied it due
     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

     3
       The district court concluded that compelled disclosure of Plaintiffs’ members
     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
     4
        Alternatively, the Town argues that we mandated the disclosure precluded by
     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




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