United States Court of Appeals For the Second Circuit

August Term 2022

Argued: May 17, 2023 Decided: July 20, 2023

No. 22-2599

THE CLEMENTINE COMPANY, LLC, DBA THE THEATER CENTER, WEST END ARTISTS COMPANY, DBA THE ACTORS TEMPLE,

Plaintiffs-Appellants,

PLAYERS THEATER MANAGEMENT CORP., DBA THE PLAYERS THEATER, SOHO PLAYHOUSE, INC., DBA SOHO PLAYHOUSE, CARAL LTD., DBA BROADWAY COMEDY CLUB,

Plaintiffs,

v.

ERIC ADAMS, IN HIS OFFICIAL CAPACITY AS MAYOR OF THE CITY OF NEW YORK,

Defendant-Appellee.

Appeal from the United States District Court for the Southern District of New York No. 21-cv-7779, Colleen McMahon, Judge. Before: CALABRESI, LOHIER, and NATHAN, Circuit Judges.

Plaintiffs-Appellants, who operate small venue theaters in New York City, brought claims for declaratory and injunctive relief and nominal damages, alleging that the City’s Key to NYC program—which required certain indoor venues to check the COVID-19 vaccination status of patrons and staff before permitting entry—violated their rights to free speech and equal protection under the First and Fourteenth Amendments. Following the expiration of the Key to NYC program, the district court dismissed as moot Plaintiffs’ claims for declaratory and injunctive relief. The district court also dismissed Plaintiffs’ claim for nominal damages for lack of standing, concluding that Plaintiffs failed to plausibly allege an injury in fact. Plaintiffs now appeal from that order. Although we conclude that Plaintiffs have plausibly alleged Article III standing, we affirm the judgment of dismissal on the alternative ground of failure to state a claim.

AFFIRMED.

MATTHEW KEZHAYA, Crown Law, Minneapolis, MN, for Plaintiffs-Appellants. ELINA DRUKER (Richard Dearing, Claude S. Patton, on the brief), for Hon. Sylvia O. Hinds-Radix, Corporation Counsel of the City of New York, New York, NY, for Defendant-Appellee.

NATHAN, Circuit Judge:

Plaintiffs-Appellants The Clementine Company LLC d/b/a The Theater Center and West End Artists Company d/b/a The Actors Temple appeal from an order of the United States District Court for the Southern District of New York (McMahon, J.) dismissing their claims against Eric Adams, the Mayor of the City of New York, for lack of subject-matter jurisdiction because Plaintiffs failed to

2 allege an injury in fact sufficient to confer Article III standing. For the reasons set forth below, we agree with Plaintiffs that they plausibly allege they have standing to bring their claims but nevertheless affirm the judgment of dismissal because Plaintiffs fail to plausibly allege a violation of the First or Fourteenth Amendments.

BACKGROUND

I. Factual Background

On August 3, 2021, the Mayor of the City of New York announced the Key to NYC program, which provided that proof of vaccination would be mandatory for patrons and staff at various indoor businesses, including theaters, beginning on August 17, 2021. Accordingly, entities to which the program applied were required to check the vaccination status of patrons and staff and to refuse entry to individuals who could not produce proof of vaccination. Under Key to NYC, a first violation for