Fleck and Associates, Inc., an Arizona Corporation v. Phoenix, City Of, an Arizona Municipal Corporation

This is a challenge, based on the constitutional right of privacy, to an ordinance prohibiting the operation of “live sex act” businesses in Phoenix, Arizona (“Phoenix” or “the city”). Appellant Fleck and Associates, Inc. (“Fleck”) runs such an establishment and appeals the district court’s order dismissing its complaint with prejudice. The district court correctly determined Fleck lacked standing to assert any cognizable privacy rights under the allegations in its complaint. However, the court improperly proceeded to reach the merits of the underlying suit, determining that Fleck’s customers could not state a claim for relief under any conceivable set of facts. Because Fleck lacked standing to assert either its own putative privacy rights or the interests of its customers, the district court lacked subject matter jurisdiction and should have dismissed the complaint on that ground alone. We therefore disapprove of the district court’s undertaking on the merits and hereby vacate the district court’s order and remand with instructions to dismiss the complaint without prejudice.

FACTUAL AND PROCEDURAL BACKGROUND

Fleck is a for-profit corporation that operates Flex, a gay men’s…