Tokyo Gwinnett, LLC, et al. v. Gwinnett County, Georgia, et al.

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-13262
____________________
TOKYO GWINNETT, LLC,
d.b.a. Tokyo Valentino,
Plaintiff-Counter Defendant
Appellant,
MICHAEL S. MORRISON,
F.E.G. HOLDINGS, LLC,
ALFRED JAY NAULT,
MATTHEW TRIPP,
Third Party Defendants-Appellants,
versus
GWINNETT COUNTY, GEORGIA,
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2 Opinion of the Court 22-13262
Defendant-Third Party Plaintiff
Counter Claimant-Appellee,
KATHY HOLLAND, et al.,
individually,
Defendants.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:15-cv-02606-TWT
____________________
Before WILLIAM PRYOR , Chief Judge, R OSENBAUM , and ABUDU, Cir-
cuit Judges.
PER CURIAM:
Appellants moved to dismiss as moot their appeal before this
Court. Tokyo Gwinnett and Gwinnett County have been engaged
in litigation since 2015 over Tokyo Gwinnett’s ability to sell sexual
devices at its leased storefront. The County has since updated its
applicable regulations, but Tokyo Gwinnett had argued that its sale
of sexual devices was “grandfathered in” under the older regula-
tions, or the older regulations were unconstitutional and its sales
were lawful prior nonconforming use. The County countersued,
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22-13262 Opinion of the Court 3
seeking an injunction preventing Tokyo Gwinnett from operating
at its leased property. Tokyo Gwinnett originally appealed two of
the district court’s orders: one granting summary judgment to the
County on all Tokyo Gwinnett’s claims, and another granting the
County’s requested permanent injunction.
In its Third Amended Complaint, Tokyo Gwinnett asked for
two forms of relief: a declaration of its rights under the old ordi-
nance and an injunction preventing the County from interfering
with its business under the new ordinance moving forward. So
Tokyo Gwinnett’s requested relief and the County’s injunction
rested on two circumstances: Tokyo Gwinnett’s ability to con-
tinue selling sexual devices at its specific leased property, and its
ability to continue operating in Gwinnett County in general.
Neither circumstance can be satisfied any longer. Since fil-
ing their appeal, Tokyo Gwinnett, LLC, closed its business, lost its
lease, and was denied a business license to operate in Gwinnett
County. Because of these intervening events, Tokyo Gwinnett no
longer has a vested property right in the leased storefront that a
court can protect, nor does it have a business (or a license) with
which a court could bar the County from interfering. And the
County’s permanent injunction was tied to that same lease that has
now ended and the business previously conducted at a now-vacant
property. Therefore, this case has been rendered moot. Tokyo
Gwinnett has also voluntarily dismissed a related state-court action
made moot by time and the closure of Tokyo Gwinnett’s business.
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4 Opinion of the Court 22-13262
Accordingly, Appellant’s motion to dismiss this appeal is
GRANTED. As is our practice when an appeal is rendered moot,
the district court’s order for summary judgment, order for a per-
manent injunction, and final judgment, which were the subject of
this appeal, are VACATED. Acheson Hotels, LLC v. Laufer, 144 S. Ct.
18, 22 (2023). This case is REMANDED to the district court with
instructions to dismiss this case as moot. Dow Jones & Co. v. Kaye,
256 F.3d 1251, 1258 (11th Cir. 2001).
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