Opinion
Case No. 8:18-cv-2843-T-33JSS
2020-09-22
Wade Steven GARDNER, et al., Plaintiffs, v. William MUTZ, et al., Defendants.
David Rhodes McCallister, David Rhodes McCallister, Attorney at Law, Wesley Chapel, FL, for Plaintiffs. Kristie Hatcher-Bolin, Mark Nelson Miller, Mark Nelso, Lakeland, FL, for Defendants William Mutz, Tony Delgado, Don Selvege, Justin Troller, Phillip Walker, Antonio Padilla, Philip L. Walker. Ashley E. Davis, Florida Department of State, Tallahassee, FL, for Defendant Michael Ertel.
David Rhodes McCallister, David Rhodes McCallister, Attorney at Law, Wesley Chapel, FL, for Plaintiffs.
Kristie Hatcher-Bolin, Mark Nelson Miller, Mark Nelso, Lakeland, FL, for Defendants William Mutz, Tony Delgado, Don Selvege, Justin Troller, Phillip Walker, Antonio Padilla, Philip L. Walker.
Ashley E. Davis, Florida Department of State, Tallahassee, FL, for Defendant Michael Ertel.
ORDER
VIRGINIA M. HERNANDEZ COVINGTON, UNITED STATES DISTRICT JUDGE
This matter comes before the Court upon consideration of Plaintiffs Wade Steven Gardner, Mary Joyce Stevens, Randy Whittaker (individually and in his official capacity at Southern War Cry), Phil Walters (in his official capacity as 1st Lt. Commander of the Judah P. Benjamin Camp #2210, Sons of Confederate Veterans), Ken Daniel (in his official capacity as Director of Save Southern Heritage, Inc. Florida), and Veterans Monuments of America, Inc.’s Second Motion for Leave to Amend Complaint (Doc. # 53), filed on August 12, 2020. Defendants William Mutz, Tony Delgado, Don Selvege, Justin Troller, Phillip Walker, and Antonio Padilla responded in opposition on August 25, 2020. (Doc. # 54). For the reasons that follow, the Motion is denied.
I. Background
The Court and the parties are familiar with the facts and procedural history of this case. On November 20, 2018, Plaintiffs brought this action against Defendants, asserting claims for violation of the First Amendment and their due process rights, as well as various state law claims. (Doc. # 1). Plaintiffs sought to prevent Defendants, almost all of whom are officials with the City of Lakeland, from relocating a memorial to Confederate soldiers who died during the Civil War ("the cenotaph") from the City of Lakeland's Munn Park to another park. (Id. at 5-7).
Defendants moved to dismiss, and the Court dismissed the complaint on January 28, 2019. (Doc. # 43). Specifically, the Court dismissed the First Amendment claim with prejudice, dismissed the Due Process claim without prejudice for lack of standing, and dismissed the state law claims without prejudice so they could be reasserted in state court.
Plaintiffs appealed. (Doc. # 44). During the pendency of the appeal, the City of Lakeland relocated the cenotaph from Munn Park to Veterans Park. (Doc. # 54 at 4). On appeal, the Eleventh Circuit affirmed in part and reversed in part, holding that Plaintiffs lacked standing to bring either the First Amendment or Due Process claims. Gardner v. Mutz, 962 F.3d 1329 (11th Cir. 2020). Thus, on remand, the Court dismissed the First Amendment claim without prejudice for lack of standing.
Now, Plaintiffs move for leave to file an amended complaint, arguing that they have rectified the standing problems identified by the Eleventh Circuit. (Doc. # 53). The proposed amended complaint contains claims for violation of the First Amendment and due process, as well as state claims for breach of bailment agreement, violation of public trust, violation of Lakeland's Historic Preservation ordinance, intent and collusion to violate Florida Statute § 872.02, and violation of Florida Statute § 267.013. (Id. at 21-28). The Motion is ripe for review.
II. Discussion
As an initial matter, the Motion violates Local Rule 3.01(a) because it fails to include a memorandum of law. See Local Rule 3.01(a), M.D. Fla. ("In a motion or other application for an order, the movant shall include a concise statement of the precise relief requested, a statement of the basis for the request, and a memorandum of legal authority in support of the request ." (emphasis added)). The Motion is little more than one page long in substance and merely mentions Federal Rule of Civil Procedure 15(a)(2) in one sentence, which falls far short of being a memorandum of law. See DeBoskey v. SunTrust Mortg., Inc., No. 8:14-cv-1778-T-35TGW, 2017 WL 10425584, at *2 (M.D. Fla. Nov. 30, 2017) (finding that a motion that was "substantively less than one page long" and "merely identifie[d] two statutes under which the defendant [sought] an award of attorney's fees" without identifying any case law violated Local Rule 3.01(a) because, "in order to determine the merits of this motion, the court would need to research the law and make the defendant's argument for it, which is obviously improper"), report and recommendation adopted, No. 8:14-cv-1778-T-35TGW, 2018 WL 6168125 (M.D. Fla. Nov. 26, 2018).
The Court is particularly disappointed in this violation because Plaintiffs’ counsel is well aware of Local Rule 3.01(a). Over a month before this Motion was filed, Judge Davis denied a motion to amend filed by Plaintiffs’ counsel in another case about a Confederate monument, explaining that the motion "violate[d] Local Rule 3.01(a)" because it failed to include "any memorandum of law regarding the standards governing a request to file an amended complaint." Edgerton v. City of St. Augustine, 3:20-cv-634-J-39JBT (M.D. Fla. July 6, 2020) (Doc. # 7 at 1). Plaintiffs’ failure to comply with the Local Rules alone warrants denial of the Motion. See DeBoskey v. SunTrust Mortg., Inc., 2017 WL 10425584, at *2 ("Where, as here, a motion violates Local Rule 3.01(a), the court may deny the motion."); see also Hickman v. Wal-Mart Stores, Inc., 152 F.R.D. 216, 219 (M.D. Fla. 1993) (denying the defendant's motion to dismiss for failing to comply with Local Rule 3.01(a)); Johnson v. Anderson, No. 3:17-cv-998-J-34JRK, 2019 WL 3717900, at *14 (M.D. Fla. Aug. 7, 2019) ("Johnson's Motion to Amend [ ] is due to be denied for failure to comply with Local Rules 3.01(a) and 3.01(g)."); Belnavis v. Nicholson, No. 8:05-cv-778-T-23TGW, 2006 WL 3359684, at *8 (M.D. Fla. Nov. 20, 2006) (denying motion for leave to amend because, among other things, the motion violated Local Rule 3.01(a)).
The Motion also fails on the merits. Federal Rule of Civil Procedure 15(a)(2) states that "a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires." Still, this Court need not "allow an amendment (1) where there has been undue delay, bad faith, dilatory motive, or repeated failure to cure deficiencies by amendments previously allowed; (2) where allowing amendment would cause undue prejudice to the opposing party; or (3) where amendment would be futile." Bryant v. Dupree, 252 F.3d 1161, 1163 (11th Cir. 2001).
Here, Defendants argue that the Motion should be denied because amendment would be futile. They argue that this case is moot and that Plaintiffs lack standing to assert their federal claims. (Doc. # 54 at 5-10). Even if the case were not moot and Plaintiffs had standing, Defendants argue that the two federal claims—for violation of the First Amendment and due process—would be subject to dismissal on the merits. (Id. at 10-13). The Court agrees that amendment would be futile.
The Eleventh Circuit ruled that Plaintiffs had not established standing in their original complaint because they failed to allege a concrete and particularized injury. Gardner, 962 F.3d at 1341-43. The court held that Plaintiffs’ injury was not concrete because it was too abstract. Id. at 1341. The court explained that Plaintiffs’ "inchoate agreement with what they take to be the cenotaph's meaning or message—and their consequent disagreement with the monument's relocation—does not alone give rise to a concrete injury for Article III purposes." Id. And Plaintiffs’ injury, as alleged in the complaint, was not particularized because their interests, including "preserving the history of the south" and "expressing their free speech from a Southern perspective," were "undifferentiated," "collective," and "not ‘distinct.’ " Id. at 1342. The court noted that Plaintiffs "don't allege, for example, that they (or, for the organizational plaintiffs, their members) routinely visited the monument in Munn Park or, alternatively, that they won't be able to visit the monument at its new location in Veterans Park. Rather, their allegations implicate only the generalized desires to promote Southern history and to honor Confederate soldiers." Id. at 1343.
Plaintiffs took the Eleventh Circuit's hint and now allege that members of the Plaintiff organizations "regularly participate at gathering at the Munn Park Cenotaph to engage and educate the public on Southern History" and use the cenotaph "as a memorial site to pay their respects to the confederate dead." (Doc. # 53 at 6-7). They also allege that certain Plaintiffs have "Confederate Dead in [their] family lineage," are "direct descendant[s] of UDC Members who collected donations and erected" the cenotaph, and "publish[ ] literature on Southern History including the Munn Park Cenotaph." (Doc. # 53 at 5-6).
The proposed amendments fail to establish standing. Even if Plaintiffs allege a particularized injury, they still have not alleged a concrete injury. To be concrete, "an alleged injury must be ‘de facto ’ and ‘real’—and just as importantly, ‘not "abstract." ’ " Gardner, 962 F.3d at 1341. "[P]urely psychic injuries arising from disagreement with government action—for instance, ‘conscientious objection’ and ‘fear’—don't qualify." Id.
In the proposed amended complaint, Plaintiffs allege the removal of the cenotaph "establishes a constitutional injury, because some Plaintiffs are descendants of the American veterans that the statues commemorate and whose memory, acts, and political philosophy Plaintiffs or Plaintiffs’ forebears have protected since the placement of the [c]enotaph in [ ] 1910." (Doc. # 53 at 18). They also allege that the relocation of the cenotaph "renders less effective the political speech of the members of the [Plaintiff organizations] which have inn [sic] the past assembled at the [c]enotaph, presented speeches, handed out literature, and engaged the public in debate." (Id. at 17-18). Plaintiffs argue the cenotaph is "a specific backdrop or virtual podium" for their viewpoint. (Id. at 17).
Plaintiffs’ alleged injury is still too abstract. At bottom, Plaintiffs disagree with the City's decision to move the cenotaph from one park to another. They prefer that the cenotaph remain in Munn Park and are offended at its relocation. But Plaintiffs have only alleged psychic injuries in the form of their disappointment that the cenotaph no longer resides in their preferred location. See Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 485–86, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982) (holding that "the psychological consequence presumably produced by observation of conduct with which one disagrees ... is not an injury sufficient to confer standing under Art. III, even though the disagreement is phrased in constitutional terms"). Defendants have not prevented Plaintiffs from speaking about anything by moving the cenotaph. Nor have Plaintiffs alleged that they are unable to visit the cenotaph at its new location or hold meetings and hand out literature there. While Veterans Park is allegedly not in the City's historic district, Plaintiffs provide no information about the new park from which the Court could infer that the relocation has resulted in a "real" injury to Plaintiffs.
Thus, Plaintiffs have not alleged an injury-in-fact for their First Amendment and due process claims and lack standing. See Ladies Mem'l Ass'n, Inc. v. City of Pensacola, Fla., No. 3:20-CV-5681-MCR-EMT, 2020 WL 5237742, at *4 (N.D. Fla. Sept. 2, 2020) ("Plaintiffs attempt to reframe their free speech right as the right to speak about the confederacy and/or confederate soldiers at Florida Square, and they claim removal of the cenotaph will ‘effectively block’ or otherwise have a ‘profound material impact’ on this speech right.... There is no allegation, whatsoever, that Plaintiffs are being restricted from speaking at Florida Square or that their speech has been restricted by the City in anyway. Nor could there be. By removing the cenotaph, the City is not preventing anyone from speaking about anything. To the extent any sense could be made from these allegations, any claimed injury is far too abstract to confer standing." (citations omitted)).
Plaintiffs also suggest that Gardner has taxpayer standing based on the same allegations contained in the original complaint. (Doc. # 53 at 5). Like they did in the original complaint, Plaintiffs allege that mailings sent by Mutz to Lakeland citizens soliciting private donations to move the cenotaph "constitute[ ] Mis-appropriation of taxpayer funds." (Id. at 21). Plaintiffs maintain the fundraising letter "was printed on City of Lakeland Stationary[,] [ ] was mailed in the US Mail with postage paid for by the City of Lakeland, and it was no doubt printed on city printers, and letters were most likely signed, folded, and envelopes addressed and letters inserted by city staff, all using City of Lakeland resources and funds, not Private Donations." (Id. ). Yet, they also concede that the City's response to a public records request "stated that no public funds were used for this letter." (Id. ). They also allege that, although the City's Red Light Camera Program is not funded with tax dollars, the use of funds from the Red Light Camera Program to remove the cenotaph "divert[ed] funds from traffic safety to other purposes." (Id. at 16).
"A municipal taxpayer has standing ‘when the taxpayer is a resident who can establish that tax expenditures were used for the offensive practice.’ " Gagliardi v. City of Boca Raton, 197 F. Supp. 3d 1359, 1366 (S.D. Fla. 2016) (quoting Pelphrey v. Cobb Cty., 547 F.3d 1263, 1280 (11th Cir. 2008) ). Just as with the original complaint, the allegations about the Red Light Camera Program and fundraising letter are insufficient to establish taxpayer standing because these funds did not come from tax dollars. See Ladies Mem'l Ass'n, Inc., 2020 WL 5237742, at *6 (" ‘[I]f no tax money is spent on the allegedly illegal activity,’ then the ‘plaintiff's status as a municipal taxpayer is irrelevant’ for purposes of standing." (citation omitted)). Indeed, the Eleventh Circuit wrote that "[a]ny attempt to establish taxpayer standing, therefore, is unavailing." Gardner, 962 F.3d at 1343 n.12.
Regardless, amendment is also futile because the First Amendment and due process claims would be subject to dismissal on the merits. See Patel v. Ga. Dep't BHDD, 485 F. App'x 982, 982 (11th Cir. 2012) ("Futility justifies the denial of leave to amend where the complaint, as amended, would still be subject to dismissal."). The cenotaph and its removal are government speech—not Plaintiffs’ speech—so Plaintiffs’ First Amendment claim fails as a matter of law. See Pleasant Grove City v. Summum, 555 U.S. 460, 472, 129 S.Ct. 1125, 172 L.Ed.2d 853 (2009) ("In this case, it is clear that the monuments in Pleasant Grove's Pioneer Park represent government speech. Although many of the monuments were not designed or built by the City and were donated in completed form by private entities, the City decided to accept those donations and to display them in the Park."). And Plaintiffs cannot establish the deprivation of a constitutionally protected liberty or property interest because the cenotaph is government speech. See AFL-CIO v. City of Miami, 637 F.3d 1178, 1186 (11th Cir. 2011) (internal citations omitted)(explaining that, to state a claim for denial of procedural due process, a plaintiff must allege "(1) a deprivation of a constitutionally-protected liberty or property interest; (2) state action; and (3) constitutionally-inadequate process").
The other remaining claims are brought under state law and would only properly be before the Court pursuant to supplemental jurisdiction because there is not complete diversity between Plaintiffs and Defendants. As the federal claims would be dismissed, so too would the state law claims be subject to dismissal. See Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350, 108 S.Ct. 614, 98 L.Ed.2d 720 (1988) ("[W]hen the federal-law claims have dropped out of the lawsuit in its early stages and only state-law claims remain, the federal court should decline the exercise of jurisdiction."); Raney v. Allstate Ins. Co., 370 F.3d 1086, 1089 (11th Cir. 2004) ("encourage[ing] district courts to dismiss any remaining state claims when, as here, the federal claims have been dismissed prior to trial").
Accordingly, it is now
ORDERED, ADJUDGED , and DECREED :
Plaintiffs’ Second Motion for Leave to Amend Complaint (Doc. # 53) is DENIED . The case remains closed.
DONE and ORDERED in Chambers in Tampa, Florida, this 22nd day of September, 2020.