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IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS DALLAS DIVISION

VILLAS AT PARKSIDE PARTNERS

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d/b/a VILLAS AT PARKSIDE,

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LAKEVIEW AT PARKSIDE PARTNERS, §

LTD. d/b/a LAKEVIEW AT PARKSIDE, §

and CHATEAU RITZ PARTNERS d/b/a §

CHATEAU DE VILLE,

§

§

Plaintiffs,

§

§

v.

§

§

THE CITY OF FARMERS BRANCH,

§

TEXAS,

§

§

Defendant.

§

§

§

§

CIVIL ACTION NO. 3-06cv2371-L ECF

PLAINTIFFS’ SECOND AMENDED COMPLAINT

Plaintiffs Villas at Parkside Partners d/b/a Villas at Parkside (“Villas”), Lakeview at

Parkside Partners, Ltd. d/b/a Lakeview at Parkside (“Lakeview”), and Chateau Ritz Partners

d/b/a Chateau de Ville (“Chateau”) file this Second Amended Complaint against defendant The

City of Farmers Branch, Texas (the “City” or “Farmers Branch”).

I.

PRELIMINARY STATEMENT On Monday, November 13, 2006, the City Council of Farmers Branch (“City Council”),

comprising Mayor Bob Phelps and City Councilmen Tim O’Hare (“O’Hare”), Bill Moses

(“Moses”), Charlie Bird (“Bird”), James Smith (“Smith”), and Ben Robinson (“Robinson”)

adopted Ordinance No. 2892 (the “Original Ordinance”), a politically-charged and highly-

controversial law targeting members of the City’s immigrant population (the overwhelming

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majority of whom are Hispanic) and requiring apartment owners and managers to police the citizenship or immigration status of their tenants and others living within their dwelling units. The Original Ordinance was patterned largely after similar laws adopted in Hazelton, Pennsylvania and Escondido, California — both of which were the subject of litigation and initially enjoined by federal district courts.1
Faced with substantial opposition to the Original Ordinance – reflected by a citizen petition drive and a presentation of a petition with over 1,200 verified signatures, several lawsuits, and a state-court restraining order – the City compounded its errors. On January 22, 2007, the City enacted Ordinance No. 2903 (the “New Ordinance”) a slightly modified version of the Original Ordinance which purported to repeal and replace the Original Ordinance. The amendment did not change the fundamental character of the Original Ordinance nor cure its multiple constitutional and other defects.
Pursuant to the New Ordinance, the City has deputized itself as an unofficial junior partner to federal authorities in the enforcement of the federal immigration laws. In that selfappointed and unauthorized role, the City has involuntarily conscripted apartment owners, including plaintiffs, to perform the duty of checking their tenants’ and prospective tenants’ citizenship and/or immigration “papers” – or else suffer criminal penalties for any failure or inability to do so. Indeed, the New Ordinance prohibits plaintiffs and other apartment landlords from entering into or renewing any lease agreements with persons who, for whatever reason, are unable to establish their citizenship or residency status by producing satisfactory proof thereof.
1 Garrett v. City of Escondido, No. 06-CV-2434-JAH (NLS) (S.D. Cal. December 15, 2006) (order granting stipulated final judgment and permanent injunction); Lozano v. City of Hazleton, No. 6-CV-56-JMM (M.D. Penn. October 31, 2006) (order granting temporary

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Put simply, the New Ordinance creates a presumption of ineligibility to enter into rental contracts, thereby imposing an impermissible burden on the lawful pursuit of plaintiffs’ business.
The New Ordinance has unfairly placed plaintiffs in a political maelstrom having nothing to do with the legitimate municipal regulation of health and safety issues related to the housing provided by plaintiffs. Rather, the real intent, and certain effect, of the New Ordinance is to discourage members of the Hispanic population, whether citizens or immigrants (legal or illegal), from taking up residence in Farmers Branch. That intent is further reflected by other recent city ordinances and resolutions specifically directed at the Hispanic population, including one “declaring English as the official language of the City of Farmers Branch.” The New Ordinance’s adoption, together with the adoption of the Original Ordinance, has already had an injurious impact upon plaintiffs’ leasing activities – resulting in a significant loss of income. Unless this Court enjoins the enforcement of the New Ordinance, the harm to plaintiffs will multiply once it takes effect.
It is not the function of the City to attempt to enforce federal immigration laws, particularly in the unauthorized and ham-fisted manner represented by the New Ordinance. Nor is it lawful for the City to impair, restrict, and harm citizens’ rights to enter into contracts and do business with others, including aliens residing in this country – particularly when the City’s actions are aimed solely at apartment owners and do not purport to affect the commercial relations and contract rights of any other business or provider of goods or services located within Farmers Branch. In sum, not only is the New Ordinance, like its predecessor, ill-advised in the extreme, it is an invalid and unconstitutional intrusion into, and deprivation of, plaintiffs’

restraining order). The Escondido ordinance has since been voluntarily repealed in response to the constitutional challenges.

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fundamental rights. Furthermore, the City’s actions have damaged plaintiffs’ businesses.

Accordingly, plaintiffs respectfully request that this Court issue a declaratory judgment

invalidating the New Ordinance, and enter an order preliminarily and permanently enjoining

defendant’s enforcement thereof, and award plaintiffs damages.

II.

A. Plaintiffs

PARTIES

1. Villas is a Texas general partnership which owns and operates the Villas at

Parkside, a 207-unit apartment complex built in 1999 and located at 4000 Park Side Center Blvd.

in Farmers Branch, Texas.

2. Lakeview is a Texas limited partnership which owns and operates Lakeview at

Parkside, a 573-unit apartment complex built in 1996 and 1998 and located at 3950 and 3990

Spring Valley Rd. in Farmers Branch, Texas.

3. Chateau is a Texas general partnership which owns and operates the Chateau De

Ville, a 161-unit apartment complex built in 2002 and located at 4040 Spring Valley Rd. in

Farmers Branch, Texas.

B. Defendant 4. The City is a municipal corporation located in Dallas County, Texas. The City

has appeared in this action and is already a party before the Court. The City was properly served

through service on Mayor Phelps.

III.

JURISDICTION AND VENUE 5. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C.

§§ 1331 and 1343; 42 U.S.C. §§ 1981 and 1983; and the Declaratory Judgment Act, 28 U.S.C.

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§§ 2201 and 2202. This Court has supplemental jurisdiction over plaintiffs’ state law claims pursuant to 28 U.S.C. § 1367.
6. This Court has personal jurisdiction over defendant, and venue is proper in the Northern District of Texas pursuant to 28 U.S.C. § 1391(b), because the City is located in this District.
IV. FACTS A. Plaintiffs: Substantial Contributors To The Farmers Branch Economy 7. The apartment complexes owned by plaintiffs are well-maintained and professionally-managed properties offering a host of amenities in each unit and a number of fitness, clubhouse, and other attractive facilities for the common use of their tenants. Monthly rents among plaintiffs’ three complexes range from $690 for one-bedroom units to $2,322 for two-bedroom units. 8. Plaintiffs rent their units not only to individuals and families, but also to corporations on either a short-term or long-term basis. Corporate renters, in turn, make their units available to employees, actual or prospective customers and clients, consultants, and other invitees. Plaintiffs have substantial competition in the form of renters of single-family properties, hotels and motels (including, but not limited to, “extended stay” facilities), and other apartment complexes located in Farmers Branch and other municipalities. None of those competitors (other than apartment complexes in Farmers Branch) is subject to the New Ordinance at issue in this action. 9. Plaintiffs’ apartment complexes require and utilize the paid services of a number of rental agents, management personnel, maintenance workers, employees, and independent contractors, many of whom live in Farmers Branch. Moreover, plaintiffs’ tenants purchase a

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substantial portion of the goods and services they require from businesses located within Farmers Branch – and many of those tenants are themselves employed by such businesses. In short, plaintiffs and the apartment complexes they own and operate have a beneficial economic impact on the City, and plaintiffs have conducted themselves as good citizens and significant contributors to the local community. B. Farmers Branch: A City In Transition At The Outset Of The Twenty-First Century
10. Farmers Branch was founded in 1841 and was formally incorporated as a city on February 2, 1856. It is a home rule municipality that operates in accordance with a “councilmanager” form of government.
11. Since 1970, the City of Farmers Branch has grown from a small, predominantly Anglo suburban community with a declining population into a growing city of almost 30,000 people. Today it is centrally located in the North Dallas Metroplex with approximately 80 corporations and more than 2,600 businesses making their home there.
12. According to the U.S. 2000 Census figures, the racial composition of the City is 55.8% White, 37.2% Hispanic/Latino, and 7% other races. Approximately 25% of the City’s population is comprised of foreign-born individuals, of which 82% are reported as being born in Latin America. Without regard to lawful immigration status, the Census identifies over 5,500 persons in the City as being non-U.S. citizens. Since 2000, the ratio of Hispanics/Latinos to Anglos has continued to increase in Farmers Branch. It is against that backdrop that the City Council set out to affect the ethnic composition of the City. C. The O’Hare Proposal: An Unsupported And Inappropriate Response To Ethnic
Diversity In Farmers Branch. 13. In August 2006, Councilman O'Hare, who never received more than 261 votes in a City election, proposed that the City undertake a “crack down” on illegal immigration by, inter

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alia, penalizing businesses that employ illegal aliens, making English the City's official language, eliminating subsidies for City-funded youth programs that involve the children of illegal immigrants, and prohibiting landlords from leasing to illegal aliens. Without any empirical data to support his assertions, O’Hare declared that the City “suffered” a poor reputation of its public schools, a lack of “acceptable appreciation” in property values, and a high crime rate. Lacking any proof, O’Hare nonetheless concluded that an invasion of illegal Mexican immigrants into the City was responsible for those “problems.”
14. Tellingly, Mayor Phelps responded to O’Hare’s rhetoric by publicly disputing O’Hare’s conclusions: “[They’re] not true . . . Our crime rate is down, our schools have moved up . . . property values are up.” Indeed, Mayor Phelps appropriately described O’Hare’s proposals as “misguided” and “a ploy to gain personal recognition.” Mayor Phelps’ comments were well-grounded. A February 10, 2007 article in the Dallas Morning News reported that crime statistics reflect a 7.3% drop in crime in Farmers Branch between 2005 and 2006. Additionally, property values in Farmers Branch have been increasing.
15. Despite the fact that a substantial portion, and perhaps even a majority, of the citizens of Farmers Branch had similar misgivings about O’Hare’s proposal, the City Council (no member of which has ever garnered more than 750 votes in a City election) pressed forward with transforming O’Hare’s political agenda into law. D. The First Illegal Landlord Conscription Act: Ordinance No. 2892.
16. On November 13, 2006, despite the dearth of factual support for his position, O’Hare, along with the other members of the City Council, adopted, as a so-called “emergency measure,” Ordinance No. 2892, entitled:
AN ORDINANCE AMENDING CHAPTER 26, BUSINESSES, ARTICLE IV APARTMENT COMPLEX RENTAL, MANDATING A CITIZENSHIP CERTIFICATION REQUIREMENT PURSUANT TO 24 C.F.R. 5 ET SEQ.;

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PROVIDING FOR ENFORCEMENT; PROVIDING A PENALTY; PROVIDING A SEVERABILITY CLAUSE; PROVIDING AN EFFECTIVE DATE; AND DECLARING AN EMERGENCY. 17. The Original Ordinance had at least five express references to Title 24 of the Code of Federal Regulations § 5, et seq. Indeed, the very title of the Original Ordinance (set forth above) declared that the “citizenship certification requirement” established therein is “pursuant to 24 C.F.R. § 5, et seq.” However, those regulations do not purport to control, affect, or govern rental agreements between private landlords and their tenants which are unrelated to any federal housing assistance program. Thus, contrary to the language of the Original Ordinance, it did not comport with federal housing law but, instead, imposed new and extraordinary citizenship and immigration restrictions on purely private residential lease agreements. Indeed, even with respect to government-supported housing programs, 24 C.F.R. § 5, et seq. does not absolutely prohibit all so-called “illegal immigrants” from receiving federal assistance. 18. Nevertheless, the Original Ordinance provided, as a condition to entering into any “apartment complex” lease or rental agreement, including any renewals or extensions thereof, that “the owner and/or property manager” shall require the submission of satisfactory “evidence” of citizenship or eligible immigration status for each tenant family other than minors and seniors. 19. In addition, the Original Ordinance required plaintiffs and other owners and/or managers of apartment complexes located within Farmers Branch to “request and review original documents of eligible citizenship or immigration status,” to “retain photocopies of the documents for [their] own records and return the original documents to the family,” and to hold such records “for a period of not less than two (2) years after the end of the family’s lease or rental.” As evidence of U.S. citizenship, new and renewing tenants were required to provide “a signed declaration of U.S. citizenship or U.S. nationality,” to be “confirmed by requiring presentation of

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a United States passport or other appropriate documentation in a form designated by ICE [the Immigration and Customs Enforcement Department] as acceptable evidence of citizenship status.” As evidence of “eligible immigration status,” new and renewing non-citizen (i.e., alien) tenants must submit: (1) a “signed declaration of eligible immigration status,” (2) a “form designated by ICE as acceptable evidence of immigration status;” and (3) a “signed verification consent form.” In short, the Original Ordinance conscripted plaintiffs and other similarlysituated Farmers Branch multi-family apartment owners as unwilling citizenship and immigration officers, for the apparent purpose of gathering information for the City’s unauthorized and unofficial “enforcement” of the federal immigration laws.
20. To compound the inappropriate burden placed on plaintiffs, the Original Ordinance further provided that any failure by the owner and/or property manager to comply with the provisions of the ordinance results in a misdemeanor carrying fines of up to $500 per day per violation. Separate offenses were deemed committed on each day a violation occurred or continued.
21. Although the City Council declared that an “emergency” existed, the Original Ordinance was adopted without public deliberation, consideration, or debate. In fact, the City passed the Original Ordinance without placing into the public record any evidence demonstrating the necessity or utility of the Original Ordinance, let alone the existence of any alleged “emergency.” Furthermore, the City failed to provide public notice of the City Council’s intent to vote on the Original Ordinance. E. The Referendum Petition: Substantial Doubt Exists Whether The City Ordinance
Has The Voters’ Support. 22. Given the suspicious nature of its adoption, following the passage of the Original Ordinance, citizens of Farmers Branch organized to challenge the new law. Pursuant to the City

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Charter, if five percent (5%) of the City’s registered voters petition the City, the Ordinance must be either: (1) repealed by the City Council; or (2) submitted to the voters of the City for approval or disapproval. On December 13, 2006, a petition was filed with the City protesting the “adoption, application and enforcement of the Ordinance in the absence of voter approval.” The petition contained over 1,700 signatures, including those of over 1,200 Farmer Branch registered voters (well in excess of the threshold to force repeal or a vote).
23. Pursuant to the City Charter, upon receipt of the petition on December 13, 2006, the City Secretary was required to “[i]mmediately . . . present said petition to the Council,” upon which the Council was to “immediately reconsider such ordinance . . . and, if it does not entirely [repeal] the same, shall submit it to a proper vote . . .” Notwithstanding the foregoing, the City refused to comply with its obligations. Following an action for a writ of mandamus directing action by the City on the Petition, the City called a meeting for January 8, 2007 to present the petition to the City Council. At that meeting, the City Council declined to repeal the Original Ordinance. Instead, it adopted Ordinance No. 2900, which put the Original Ordinance on the ballot for the next City election to permit the City’s residents to vote in favor or against the Original Ordinance.
24. In addition to the petition, during December 2006, several lawsuits (including this one) were commenced that challenged the City Council’s actions. One of those (styled Guillermo Ramos v. City of Farmers Branch et. al.) contested the validity of the Original Ordinance based upon the City Council’s failure to comply with the Texas Open Meetings Act (“TOMA”).
25. On January 11, 2007, the court in that action (Hon. Bruce Priddy of the 116th Judicial District Court) issued a temporary restraining order enjoining the enforcement of the

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Original Ordinance. In doing so, Judge Priddy found that plaintiffs had established, among other elements, a likelihood of ultimate success on the merits of their claim that the Original Ordinance was enacted in violation of TOMA. F. The Second Illegal Landlord Conscription Act: Ordinance No. 2903 Fails to Cure
Major Constitutional and Other Defects. 26. In response to its recognition of the merit of the TOMA challenge, the City reacted. Following an evidentiary hearing in the TOMA action, wherein the numerous defects were clearly highlighted, the City decided to call a City Council meeting for January 22, 2007. At that meeting, the City Council adopted the New Ordinance – Ordinance No. 2903 – which purported to repeal both the Original Ordinance and Ordinance No. 2900. 27. The New Ordinance also purported to modify slightly the Original Ordinance in three respects. First, the New Ordinance adds an exemption for minors and seniors over 62. Second, it undertakes to change the documentation requirements of the Original Ordinance to more closely resemble those of regulations promulgated by the United States Department of Housing and Urban Development regarding eligibility for federal housing subsidies (including implementation of the so-called “mixed family” rule). Finally, the New Ordinance adds to the Original Ordinance a right to a hearing before a “City Building Official” for any would-be tenant who is denied a lease because of a question regarding his or her immigrant status verification. The New Ordinance also submits its terms and provisions for a vote on May 12, 2007. 28. These superficial changes to the Original Ordinance do not address, let alone cure, the multiple fundamental legal defects of the Original Ordinance. In fact, it is essentially the same ordinance, re-enacted merely to overcome the defects resulting from the City Council’s violations of TOMA in enacting the Original Ordinance.

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29. The New Ordinance is equally defective and in violation of the law. For example, the New Ordinance still imposes extraordinary citizenship and immigration restrictions on purely private residential lease agreements. It continues to rely on Title 24 of the Code of Federal Regulations § 5, et seq. It still requires citizenship and immigration status verification, with original documentation, as a mandatory pre-requisite to entering into any “apartment complex” lease or rental agreement. Furthermore, the New Ordinance continues to impose criminal penalties for any failure by a property owner or manager. G. The Regulation Of Citizenship And Immigration Matters: The Exclusive Province
Of The Federal Government. 30. Pursuant to Article I, Section 8, Clauses 3 and 4 of the United States Constitution, the federal government has the power to “establish a uniform Rule of Naturalization” and to “regulate Commerce with foreign Nations.” In fact, the Supreme Court of the United States has held that the federal government’s power to control immigration is inherent in the nation’s sovereignty. 31. Pursuant to its exclusive power over matters of immigration, the federal government has established a comprehensive system of administrative agencies, statutes, regulations, and procedures to determine, subject to judicial review, whether and under what conditions aliens may enter, live, work in the United States – and, if desired, become citizens thereof. 32. The federal government has chosen to allow certain non-citizens to remain in the United States, even though such persons may not have valid immigrant (permanent) or nonimmigrant (temporary) status and/or may otherwise be removable or subject to deportation under the Federal Immigration and Nationality Act. For instance, under federal law, various categories of persons can receive federal permission to work, and implicitly to stay and reside, in the United

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States even though they may be violating immigration laws. Moreover, persons with pending applications to adjust to a lawful status are often permitted to remain in the United States despite a lack of valid immigrant status. Of course, determinations of who may continue living here are within the exclusive province of the United States Government – and any attempt by state or local officials to usurp that function constitutes an inappropriate interference with a federal function.
33. Pursuant to 31 U.S.C. § 1342, officers of the United States Government may not accept voluntary services in connection with the performance of a governmental function unless authorized by law. In the field of immigration, the circumstances under which the federal government authorizes the voluntary assistance of states and municipalities are limited. Pursuant to 8 U.S.C. § 1357, the U.S. Attorney General may enter into a written agreement with a state, or any political subdivision thereof, permitting “qualified” employees “to perform a function of an immigration officer in relation to the investigation, apprehension, or detention of aliens in the United States.”
34. The Original Ordinance recited that its “sole intention . . . is for the purposes of assisting the United States Government in its enforcement of the Federal Immigration Laws.” That stated intention endures with respect to the New Ordinance. However, there exists no agreement between Farmers Branch and the United States Attorney General (or any other federal governmental official or agency) permitting the City or any of its employees (including the City’s Building Inspector, who will be responsible for enforcing the New Ordinance) to perform the function of an immigration officer or otherwise assist in the enforcement of the U.S. immigration laws. Thus, as with the Original Ordinance, the New Ordinance was also adopted

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without authority and for purposes unrelated to the City’s legitimate interests as a municipal government. H. The Consequence Of The City’s Unlawful Ordinances: Plaintiffs Have Suffered and
Will Continue to Suffer Injury In The Absence Of This Court’s Intervention And The Issuance Of Appropriate Relief. 35. Since enactment of the Original Ordinance, plaintiffs have suffered damages including a loss of leases with new tenants and renewals of leases with existing tenants. This is a direct consequence of the burdensome and illegal requirements imposed initially by the Original Ordinance, and now furthered by the New Ordinance. 36. Indeed, the Apartment Association of Greater Dallas reports that apartment occupancy in Farmers Branch during the quarter following enactment of the Original Ordinance fell by 10%. Moreover, the Apartment Association attributes the fall in occupancy to the City’s enactment of the Original Ordinance and the New Ordinance, and projects that its members, including plaintiffs, will suffer millions of dollars in lost revenues as a result of the City’s conduct. 37. Plaintiffs’ business of leasing multi-family housing is extremely competitive. Plaintiffs compete with a number of comparable apartment complexes in nearby municipalities (such as Addison, Carrollton, and Dallas) that are not subject to the onerous requirements of the New Ordinance. Consequently, as reflected in the Apartment Association’s reports, many of plaintiffs’ existing and prospective new tenants have already sought (and will likely continue to seek) alternative apartments or housing in these other jurisdictions. 38. The New Ordinance imposes a substantial burden on most, if not all, of plaintiffs’ existing and prospective tenant base. In particular, however, there are two specific subpopulations of that tenant base that is most affected by the New Ordinance. They are: (a)

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“transitional tenants” who are transitioning between homes; and (b) tenants from outside Texas who enter into lease agreements through Internet-based transactions.
39. One of the largest sources of plaintiffs’ tenant base are tenants who are in transition between homes. Many of plaintiffs’ leases are with persons who have just moved to the area and/or are in the process of purchasing a home. For example, nearly one-fourth of Lakeview’s tenants are from out of state.
40. As set forth above, plaintiffs face substantial competition for transitional tenants in the form of single-family properties, hotels and motels (including, but not limited to, “extended stay” facilities), and other apartment complexes located in Farmers Branch and other municipalities. Plaintiffs have strategically, and successfully, positioned themselves to capitalize on this key market segment by offering short-term leases specifically designed for transitioning tenants’ convenience. Plaintiffs’ experience has taught them that prospective transitional tenants want to reserve an apartment as soon as possible, both to reserve the availability of the physical unit and to “lock in” the price. Therefore, plaintiffs have streamlined their administrative and application processes to be more efficient (and, thus, more competitive) in closing lease contracts with the least possible inconvenience to their tenants. The New Ordinance, like the Original Ordinance before it, has destroyed that competitive advantage.
41. In addition, a large percentage of plaintiffs’ tenants originate through the Internet. For these prospective tenants, often no face-to-face meeting is conducted until the tenant actually takes occupancy. Applications, fees, and necessary documentation are exchanged via telefax or express mail. The New Ordinance forecloses these business operations.
42. Unless this Court declares the New Ordinance to be invalid and enjoins the enforcement thereof, plaintiffs will suffer irreparable injury in addition to the damages plaintiffs

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have already suffered as a result of the Original Ordinance. On the one hand, compliance with the New Ordinance will likely result in a substantial loss of plaintiffs’ business due to: (1) existing tenants’ inability, failure, or refusal to timely produce all the documents required by the New Ordinance in the form specified therein; and (2) prospective tenants’ election not to consider plaintiffs’ apartment complexes, or other multi-family residential landlords located within Farmers Branch, due to the burden and inconvenience imposed upon them by the documentary requirements of the New Ordinance – and the comparative ease with which other suitable competing accommodations can be obtained in neighboring municipalities or through alternate sources (such as hotels and single-family rental properties). On the other hand, any failure by plaintiffs or their managers to comply with the New Ordinance, however unintentional, will automatically be deemed “misdemeanors” under the New Ordinance, exposing plaintiffs to daily and continuing fines under a law adopted by the City for the clear purpose of assisting, without the authority to do so, the federal government in enforcing U.S. immigration laws.
43. The City Council’s adoption and threatened enforcement of the New Ordinance has violated, and will continue to do injury to, plaintiffs’ constitutional, statutory, and common law rights. Therefore, judicial intervention and appropriate declaratory and injunctive relief is necessary to prevent further deprivations and violations of plaintiffs’ rights and property interests. Additionally, Plaintiffs are entitled to recover damages to compensate them for the injuries they have sustained as a result of the City’s enactments of the unlawful Original Ordinance and the New Ordinance.
44. As a result of defendant’s conduct, plaintiffs have been required to obtain the undersigned counsel to prosecute and present the claims asserted herein.

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V. CLAIMS A. Count One: Violation of the Supremacy Clause 45. Plaintiffs hereby incorporate the allegations in the preceding paragraphs as if fully set forth herein. 46. Article VI of the United States Constitution provides: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution of Laws of any State to the Contrary notwithstanding.” 47. The Supremacy Clause mandates that federal law preempts state regulation of any area over which Congress has expressly or impliedly exercised exclusive authority or which is constitutionally reserved to the federal government. The power to regulate immigration is exclusively a federal power. 48. The federal government has enacted a comprehensive statutory and regulatory scheme governing immigration, including the Immigration and Nationality Act. 49. The New Ordinance, in its entirety, purports to regulate immigration and the incidents thereof. The New Ordinance infringes upon, interferes with, and usurps the federal government’s exclusive power over immigration and naturalization and its power to regulate foreign affairs. 50. The New Ordinance is, therefore, preempted because it attempts to legislate in fields occupied by the federal government and because it conflicts with federal laws, regulations, policies, and objectives. The Supremacy Clause of the U.S. Constitution requires that any state law or local regulation the conduct of noncitizens must be invalidated if it: (1) amounts to an

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attempt to regulate immigration; or (2) operates in a field occupied by the federal government or stands as an obstacle to federal law. The New Ordinance fails under both standards.
51. By denying plaintiffs the right and ability to rent to any tenant who does not satisfy the extensive documentation requirements prescribed therein, the New Ordinance runs roughshod over this complex system of federal classification and discretion. Ultimately, the effect of the New Ordinance is to upset the system established by Congress by implementing Farmers Branch’s own enforcement mechanisms, penalties, and interpretations in place of the federal system.
52. In addition, as a result of the New Ordinance’s violation of the Supremacy Clause, plaintiffs will lose current or prospective tenants who may otherwise be permitted by the federal government to live and/or work in the United States, but will nevertheless be barred from renting apartments in Farmers Branch. In addition, the chilling effects of the New Ordinance will generally discourage many prospective tenants of Hispanic descent from even submitting rental applications with plaintiffs.
53. Accordingly, this Court should declare the New Ordinance unconstitutional and preliminarily and permanently enjoin its enforcement. B. Count Two: Violation of 42 U.S.C. §1981
54. Plaintiffs hereby incorporate the allegations in the preceding paragraphs as if fully set forth herein.
55. Plaintiffs have a fundamental right to contract and to enjoy the full and equal benefit of all laws. Pursuant to 42 U.S.C. §1981, “[a]ll persons within the jurisdiction of the United States shall have the same right in every State or Territory to make and enforce contracts . . . and to the full and equal benefit of all laws and proceedings for the security of persons and

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property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.”
56. Congress explicitly prohibits discrimination under the color of law based on alienage and race. Furthermore, Congress deliberately used “all persons” instead of “citizens” in order to reflect the language of the Fourteenth Amendment that extended the guarantee of equal protection under the laws to “any person within the jurisdiction of the United States.”
57. Plaintiffs are entitled to the protections and benefits afforded by Section 1981, and the New Ordinance improperly interferes with plaintiffs’ fundamental right to contract with “all persons.” As with the Original Ordinance, by enacting the New Ordinance, Farmers Branch has violated plaintiffs’ fundamental rights under 42 U.S.C. §1981, and prevents plaintiffs from contracting for the rental units they own. Specifically, the New Ordinance impinges upon plaintiffs’ right to enter into rental contracts with aliens and citizens alike. Moreover, because the New Ordinance deprives certain aliens and U.S. citizens of the right to enter into lease agreement with owners of apartment complexes located within Farmers Branch, plaintiffs are among those whose rights to contract necessarily suffer as a result.
58. Unless the New Ordinance is permanently enjoined and declared invalid, the fundamental rights of plaintiffs will be violated.
59. Accordingly, this Court should declare the New Ordinance invalid under federal law and preliminarily and permanently enjoin its enforcement.
60. Plaintiffs have also sustained damages as a result of these violations of their rights secured under § 1981. C. Count Three: Violation of Due Process
61. Plaintiffs hereby incorporate the allegations in the preceding paragraphs as if fully set forth herein.

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62. The Fourteenth Amendment guarantees each citizen due process of law. The Fourteenth Amendment's guarantee proscribes laws so vague that persons of common intelligence differ as to their application and must necessarily guess at their meaning. A law is unconstitutionally vague if it fails to provide those targeted by the law a reasonable opportunity to know what conduct is prohibited.
63. The New Ordinance is void for vagueness because it fails to define the offense with sufficient definitiveness that ordinary people can understand what conduct is prohibited, and because it fails to establish minimum guidelines to govern law enforcement so as to invite arbitrary and discriminatory enforcement. The New Ordinance provides for criminal penalties for violations, yet is ambiguous and fails to address critical questions relating to the obligations and potential criminal liabilities it creates. Furthermore, as admitted by the City, the New Ordinance contains absolutely no procedures or guidelines for enforcement.
64. Accordingly, this Court should declare the New Ordinance invalid under federal law and preliminarily and permanently enjoin its enforcement. D. Count Four: Violation of Equal Protection
65. Plaintiffs hereby incorporate the allegations in the preceding paragraphs as if fully set forth herein.
66. The Equal Protection Clause of the 14th Amendment prohibits the discriminatory treatment of legal residents of the United States based on alienage, and prohibits discrimination based on race or national origin. However, the New Ordinance would prohibit the leasing of apartments to legal aliens under many different circumstances and scenarios. In addition, the New Ordinance has the purpose and/or effect of discriminating against Hispanics, including those who are American citizens who live with family members who have not yet obtained citizenship status.

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67. Accordingly, this Court should declare the New Ordinance invalid under federal law and preliminarily and permanently enjoin its enforcement. E. Count Six: Violation of 42 U.S.C. § 1983
68. Plaintiffs hereby incorporate the allegations in the preceding paragraphs as if fully set forth herein.
69. When it enacted each of the Original Ordinance and the New Ordinance, the City was a “person” acting “under color of state law” within the meaning of 42 U.S.C. § 1983.
70. As detailed above, the New Ordinance violates plaintiffs’ “rights, privileges, [and] immunities secured by the Constitution and laws” of the United States. Additionally, for the same reasons, the Original Ordinance, which was substantially the same as the New Ordinance, also violated plaintiffs’ “rights, privileges, [and] immunities secured by the Constitution and laws” of the United States.
71. Plaintiffs have sustained injury as a result of the City’s violations of their rights and, therefore, are entitled to recover damages pursuant to 42 U.S.C. § 1983. F. Count Seven: Violation of Section 214.903 Of The Texas Local Government Code
72. Plaintiffs hereby incorporate the allegations in the preceding paragraphs as if fully set forth herein.
73. Section 214.903 of the Texas Local Government Code provides that “the governing body of a municipality may adopt fair housing ordinances that provide fair housing rights, compliance duties, and remedies that are substantially equivalent to those granted under federal law” (emphasis added).
74. The New Ordinance twice refers to “fair housing” in the preliminary clauses purportedly justifying its adoption. Yet, as demonstrated above, the New Ordinance goes far beyond federal fair housing laws with respect to the leasing of apartment units upon the

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presentation of satisfactory proof of citizenship or lawful immigration status. Simply put, the New Ordinance is not “substantially equivalent” to federal law and, thus, violates the applicable provisions of the Texas Local Government Act.
75. Accordingly, this Court should declare the New Ordinance invalid under state law and preliminarily and permanently enjoin its enforcement.
VI. JURY DEMAND 76. Plaintiffs hereby demand a trial by jury of all issues so triable.
VII. REQUEST FOR RELIEF In light of the foregoing, plaintiffs respectfully request that this Court, upon notice to defendant, issue a temporary retraining order and, following any necessary hearing with respect thereto, a preliminary injunction prohibiting the enforcement or threatened enforcement of the New Ordinance pending entry of a final judgment in favor of plaintiffs and against defendant, providing for the following relief: 1. A declaration invalidating the New Ordinance as unconstitutional and otherwise contrary to applicable federal and state law; 2. A permanent injunction prohibiting the enforcement or threatened enforcement of the New Ordinance; 3. An award of money damages; 4. An award of reasonable attorneys’ fees pursuant to 42 U.S.C. § 1988(b) and any other applicable statute; 5. Costs of Court; and 6. Any other relief, at law or in equity, to which plaintiffs may be entitled and which this Court deems just and proper.

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Respectfully submitted,
BICKEL & BREWER STOREFRONT, P.L.L.C.
By:/s/ Michael L. Smith William A. Brewer III State Bar No. 02967035 James S. Renard State Bar No. 16768500 Michael S. Gardner State Bar No. 24002122 Michael L. Smith State Bar No. 24027989
1717 Main Street Suite 4800 Dallas, Texas 75201 Telephone: (214) 653-4000 Facsimile: (214) 653-1015
ATTORNEYS FOR PLAINTIFFS

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CERTIFICATE OF SERVICE I hereby certify that on this 9th day of March, 2007, I electronically filed the foregoing document with the clerk of the court for the U.S. District Court, Northern District of Texas, using the electronic case filing system of the court. The electronic case filing system sent a “Notice of Electronic Filing” to the following attorney of record who has consented in writing to accept this Notice as service of this document by electronic means: Matthew Boyle Assistant City Attorney Boyle & Lowry, L.L.P. 4201 Wingren, Suite 108 Irving, Texas 75062 Attorney for Defendants
__/s/ Michael L. Smith Michael L. Smith

PLAINTIFFS’ SECOND AMENDED COMPLAINT 5127362.5
8001-133

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 Case 3:06-cv-02371 Document 81 Filed 05/21/2007 Page 1 of 20

IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS DALLAS DIVISION

VILLAS AT PARKSIDE PARTNERS d/b/a VILLAS AT PARKSIDE, et al.,
Plaintiffs, v. THE CITY OF FARMERS BRANCH,
Defendant.

§ § § § § § Civil Action No. 3:06-CV-2371-L § (consolidated with CA No. 3:06-CV-2376-L § and CA No. 3:07-CV-0061-L) § §

MEMORANDUM OPINION AND ORDER GRANTING TEMPORARY RESTRAINING ORDER

Before the court are: (1) [Vasquez] Plaintiffs’ Application for Temporary Restraining Order,

filed May 15, 2007; (2) [Barrientos]1 Plaintiffs’ Application for Temporary Restraining Order, filed

May 15, 2007; and (3) [Villas] Plaintiffs’ Application for Temporary Restraining Order and

Preliminary Injunction, filed May 16, 2007. After careful consideration of the applications,

response, replies, record, and applicable law, and because Farmers Branch Ordinance 2093 is

preempted by the Supremacy Clause, the court grants the Vasquez Plaintiffs’ Application for

Temporary Restraining Order, grants the Villas Plaintiffs’ Application for Temporary Restraining

Order, and denies the Barrientos Plaintiffs’ Application for Temporary Restraining Order.

1Upon inquiry from the court’s judicial assistant, it was determined that the correct surname for the lead plaintiff in this case, originally action 3:07-CV-0061-L, is “Barrientos.” Indeed, the appendix filed by these plaintiffs in support of their application for temporary restraining order spells the lead plaintiff’s surname as Barrientos. The clerk of the court is directed to make this change on the docket sheet.
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I. Procedural and Factual Background Plaintiffs ask the court to enjoin Farmers Branch Ordinance 2903 (the “Ordinance”), an
ordinance adopted by the Farmers Branch City Council on January 22, 2007. The Ordinance was the second iteration of a law originally adopted by the City Council on November 13, 2006, Ordinance 2892. A state court issued a temporary restraining order enjoining implementation of Ordinance 2892 on January 9, 2007, finding that Ordinance 2892 “may have been approved and adopted in violation of the Texas Open Meetings Act.” Villas App. 19. Thereafter, the City Council repealed Ordinance 2892 and adopted the Ordinance. The Ordinance called for an election to allow the voters of Farmers Branch to vote for or against it. Ord. § 5.
On May 12, 2007, the voters of Farmers Branch approved the Ordinance by a margin of 4,058 “for,” and 1,941 “against.” The effective date of the Ordinance is May 22, 2007. Id. § 7. The preamble to the Ordinance states that “the City Council finds and determines that the benefits and protections provided through the HUD citizenship and immigration status certification processes would also benefit the City;” that “the City of Farmers Branch is authorized to adopt ordinances pursuant to its police power to protect the health, safety, and welfare of its citizens;” and that “the City of Farmers Branch has determined that it is a necessity to adopt citizenship and immigration certification requirements for apartment complexes to safeguard the public, consistent with the provisions of 24 [Code of Federal Regulations] 5, et seq.” Id. Preamble. The Ordinance also states that “the purposes of this Ordinance are to promote the public health, safety, and general welfare of the public.” Id.
The Ordinance amends Chapter 26, Article IV of the City’s Code of Ordinances relating to apartment complex rental. Specifically, the Ordinance adds language to section 26-116(d)(3) and
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creates a new section 26-116(f) titled “Citizenship or Immigration Status Verification.” Id. § 3(A)(B).
Subsection (1) of the new section (f) defines various terms used in the section, and states that the definitions are consistent with 24 CFR 5.504. Id. § 3(B)(f)(1). The term “Evidence of citizenship or eligible immigration status” is defined as “the documents which must be submitted to evidence citizenship or eligible immigration status for residency in the United States.” Id. “Citizen” is defined as “a citizen or national of the United States.” Id. “National means a person who owes permanent allegiance to the United States, for example, as a result of birth in a United States territory or possession.” Id. Noncitizen is defined as “a person who is neither a citizen nor national of the United States.” Id.
Subsection (2) provides: “The owner and/or property manager shall require as a prerequisite to entering into any lease or rental arrangement, including any lease or rental renewals or extensions, the submission of evidence of citizenship or eligible immigration status for each tenant family consistent with subsection (3).” Id. § 3(B)(f)(2).
Subsection (3) relates to “Evidence of citizenship or eligible immigration status” and lists the evidence required to show tenants’ citizenship or immigration status. Id. § 3(B)(f)(3). This section sets out the documentation that tenants must provide. Noncitizens must provide: (1) a signed declaration of “eligible immigration status;” (2) a “form designated by [United States Immigration and Customs Enforcement]2 as acceptable evidence of immigration status;” and (3) a “signed verification consent form.” Id. § 3(B)(f)(3)(ii)(a)-(c).
2The Ordinance defines “ICE” as “Immigration and Customs Enforcement Department.” The court believes that this is a misnomer, as United States Immigration and Customs Enforcement is a component of the United States Department of Homeland Security, and therefore not a separate United States Department.
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Subsection (4) outlines the owner and/or property managers’ obligations with regard to the
evidence of citizenship or “eligible immigration status:”
(i) The owner and/or property manager shall request and review original documents of eligible citizenship or immigration status. The owner and/or property manager shall retain photocopies of the documents for its own records and return the original documents to the family. Copies shall be retained by the owner and/or property manager for a period of not less than two (2) years after the end of the family’s lease or rental.
(ii) The owner and/or property manager shall require that each family member submit evidence of citizenship or immigration status only once during continuous occupancy. The owner and/or property manager is prohibited from allowing the occupancy of any unit by any family which has not submitted the required evidence of citizenship or eligible immigration status under this Section . . . .
Id. § 3(B)(f)(4).
Finally, the Ordinance includes a section describing penalties for violation. Specifically,
section 6 of the Ordinance provides: “any person violating any of the provisions of this ordinance
shall be deemed guilty of a misdemeanor and upon conviction thereof shall be fined in a sum not
to exceed $500 and a separate offense shall be deemed committed upon each day during or on which
a violation occurs or continues.” Id. § 6.
Three groups of plaintiffs3 now challenge the Ordinance and ask the court to temporarily
restrain the effective date and enforcement of the Ordinance. Plaintiffs argue that the Ordinance is
preempted by federal law, that the Ordinance violates the Contracts Clause of the United States
3The three groups of plaintiffs correspond to the plaintiffs who originally brought the three cases consolidated by the court on April 18, 2007. The Villas Plaintiffs are the owners and operators of apartment complexes in Farmers Branch. The Vasquez Plaintiffs include residents of apartment complexes in Farmers Branch as well as the owners and managers of apartment complexes in the city. The Barrientos Plaintiffs operate retail businesses in Farmers Branch. All plaintiffs contend they will be adversely affected by enforcement of the Ordinance.
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Constitution, that the Ordinance violates procedural and substantive due process, that the Ordinance violates the Equal Protection Clause of the United States Constitution, and that the Ordinance violates the Texas Local Government Code. II. Legal Standard – Application for Temporary Restraining Order
The purpose of a temporary restraining order is to “preserv[e] the status quo and prevent[] irreparable harm just so long as is necessary to hold a hearing, and no longer.” Granny Goose Foods, Inc. v. Bhd. of Teamsters & Auto Truck Drivers, 415 U.S. 423, 439 (1974). Any temporary restraining order, therefore, is a temporary measure to protect rights until a hearing can be held.
There are four prerequisites for the extraordinary relief of a temporary restraining order or preliminary injunction. To prevail, a plaintiff must demonstrate: (i) a substantial likelihood of success on the merits; (ii) a substantial threat of immediate and irreparable harm for which it has no adequate remedy at law; (iii) that greater injury will result from denying the temporary restraining order than from its being granted; and (iv) that a temporary restraining order will not disserve the public interest. Clark v. Prichard, 812 F.2d 991, 993 (5th Cir. 1987); Canal Authority v. Callaway, 489 F.2d 567, 572 (5th Cir. 1974) (en banc). The party seeking such relief must satisfy a cumulative burden of proving each of the four elements enumerated before a temporary restraining order or preliminary injunction can be granted. Mississippi Power and Light Co. v. United Gas Pipeline, 760 F.2d 618, 621 (5th Cir. 1985); Clark, 812 F.2d at 993. Otherwise stated, if a party fails to meet any of the four requirements, the court cannot grant the temporary restraining order or preliminary injunction.
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III. Analysis Before delving into the legal arguments regarding the Ordinance, the court recognizes that
the voters of Farmers Branch overwhelmingly voted in favor of the Ordinance. Public approval of the Ordinance, by itself, does not guide the court as to whether the Ordinance complies with the law. The court is mindful that both proponents and opponents of the Ordinance are passionate about their positions and the policy implications of the Ordinance. The court, however, does not consider or question the policy or wisdom behind the Ordinance, but rather limits its review to the legal issues raised by the parties in relation to the Ordinance. Accordingly, the court considers solely whether Plaintiffs have satisfied the four elements required for a temporary restraining order.
A. Barrientos Plaintiffs’ Application for Temporary Restraining Order The city argues that the court must dismiss the Barrientos Plaintiffs’ application for temporary restraining order because they have not pleaded any claims based upon the Ordinance. The Barrientos Complaint, filed January 11, 2007, pleads violations of the Supremacy Clause, Equal Protection Clause, procedural due process under the Fourteenth Amendment, and 42 USC § 1981. The Complaint was filed before the enactment of the Ordinance, and bases its claims upon Ordinance 2892, the previous version of the Ordinance that was repealed by the City Council on January 22, 2007. Although several months have passed since Ordinance 2892 was repealed and the Ordinance was adopted, the Barrientos Plaintiffs have not amended, or sought leave to amend, their Complaint. Accordingly, the court determines that the Barrientos Plaintiffs’ application for temporary restraining order cannot establish the four elements required for injunctive relief. The Barrientos Complaint and declarations filed in support of their application allege claims premised entirely upon
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Ordinance 2892, which has been repealed by the city of Farmers Branch. There is no danger of irreparable harm to the Barrientos Plaintiffs based upon their pleaded claims, because their claims are based upon a repealed ordinance. Accordingly, the court denies the Barrientos Plaintiffs’ application for temporary restraining order.
B. Villas Plaintiffs and Vasquez Plaintiffs’ Applications The Villas and Vasquez Plaintiffs amended their Complaints, and the live pleadings in those cases assert claims based upon the Ordinance. Although the two groups of Plaintiffs filed separate applications, Farmers Branch has filed a single response, and the arguments made by Plaintiffs are overlapping. The court therefore considers these two applications together.
1. Likelihood of Success on the Merits Plaintiffs must establish a substantial likelihood of success on the merits. Clark, 812 F.2d at 993. Plaintiffs argue that the Ordinance is unconstitutional on a number of grounds: (1) the Ordinance is preempted and therefore invalid under the Supremacy Clause of the Constitution; (2) the Ordinance violates substantive and procedural due process; (3) the Ordinance violates the Equal Protection Clause of the Constitution; (4) the Ordinance violates the Contracts Clause of the United States Constitution; and (5) the Ordinance violates the Texas Local Government Code. The court turns first to Plaintiffs’ arguments that the Ordinance is preempted by the Constitution and federal law. The Supremacy Clause of the Constitution states, “This Constitution, and the Laws of the United States . . . shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby . . . .” U.S. Const., art. VI, cl. 2. The Supremacy Clause is “[a] fundamental principle of the Constitution . . . that Congress has the power to preempt state law.” Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 372 (2000) (citing U.S. Const., art. VI, cl. 2;
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Gibbons v. Ogden, 9 Wheat. 1, 211 (1824); Savage v. Jones, 225 U.S. 501, 533 (1912); and California v. ARC America Corp., 490 U.S. 93, 101 (1989)).
The Supreme Court has held that state immigration laws can be preempted by federal law in several ways. De Canas v. Bica, 424 U.S. 351 (1976). In that case, the Court noted that only the federal government may issue a “regulation of immigration,” which the court defined as “a determination of who should or should not be admitted into the country, and the conditions under which a legal entrant may remain.” Id. at 355. The Court also noted that “[e]ven when the Constitution does not itself commit exclusive power to regulate a particular field to the Federal Government, there are situations in which state regulation, although harmonious with federal regulation, must nevertheless be invalidated under the Supremacy Clause.” Id. at 356. The Court went on to note: “[F]ederal regulation . . . should not be deemed preemptive of state regulatory power in the absence of persuasive reasons either that the nature of the regulated subject matter permits no other conclusion, or that the Congress has unmistakably so ordained.” Id. (brackets in original) (quoting Florida Lime & Avocado Growers v. Paul, 373 U.S. 132, 142 (1963).
District courts, construing the Supreme Court’s decision in De Canas, have noted that the decision creates three tests for determining whether a state immigration law or regulation is preempted by federal law:
Under the first test, the Court must determine whether a state statute is a regulation of immigration. Since the power to regulate immigration is unquestionably exclusively a federal power, any state statute which regulates immigration is constitutionally prescribed. Under the second test, even if the state law is not an impermissible regulation of immigration, it may still be preempted if there is a showing that it was the clear and manifest purpose of Congress to effect a complete ouster of state power–including state power to promulgate laws not in conflict with federal laws with respect to the
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subject matter which the statute attempts to regulate. In other words, a statute is preempted where Congress intended to occupy the field which the statute attempts to regulate. Under the third test, a state law is preempted if it stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress. Stated differently, a statute is preempted under the third test if it conflicts with federal law making compliance with both state and federal law impossible. League of United Latin American Citizens v. Wilson, 908 F. Supp. 755, 768 (C.D. Cal. 1995) (hereinafter “LULAC”) (internal citations and quotations omitted); see also Garrett v. City of Escondido, 465 F. Supp. 2d 1043, 1055 (S. D. Cal. 2006); Equal Access Education v. Merten, 305 F. Supp. 2d 585, 601-602 (E.D. Va. 2004). Plaintiffs argue that the Ordinance fails each of the three tests. Defendants describe De Canas as a “three-pronged test” for which Plaintiffs must establish each of the three prongs. The court agrees that De Canas creates three separate tests to be used in determining whether a state immigration law is preempted; failure of any one of the De Canas tests requires the conclusion that a state law is preempted. The court now addresses the first test. The United States Constitution grants Congress the exclusive power to “establish [a] uniform Rule of Naturalization” and to “regulate commerce with foreign nations.” U.S. Const. art. I § 8, cl. 4 and 3. The Court has repeatedly held that the “[p]ower to regulate immigration is unquestionably exclusively a federal power.” De Canas, 424 U.S. at 354 (citing Passenger Cases, 7 How. 283 (1849); Henderson v. Mayor of New York, 92 U.S. 259 (1876); Chy Lung v. Freeman, 92 U.S. 275 (1876); Fong Yue Ting v. United States, 149 U.S. 698 (1893)); see also Plyler v. Doe, 457 U.S. 202, 225 (1982) (“The States enjoy no power with respect to the classification of aliens. This power is committed to the political branches of the Federal Government. . . . [O]nly rarely are such matters
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relevant to legislation by a State.”) (internal citations and quotations omitted); Toll v. Moreno, 458 U.S. 1, 10 (1982) (“Our cases have long recognized the preeminent role of the Federal Government with respect to the regulation of aliens within our borders.”); Traux v. Raich, 36 S.Ct. 7, 11 (1915) (“The authority to control immigration . . . is vested solely in the Federal government.”). The Supreme Court, nonetheless, “has never held that every state enactment which in any way deals with aliens is a regulation of immigration and thus per se pre-empted by this constitutional power, whether latent or exercised.” De Canas, 424 U.S. at 355. Rather, a court must look to whether the state law is a “regulation of immigration,” defined by the Supreme Court as “essentially a determination of who should or should not be admitted into the country, and the conditions under which a legal entrant may remain.” Id.
In De Canas, the Supreme Court upheld a California statute that provided: “No employer shall knowingly employ an alien who is not entitled to lawful residence in the United States if such employment would have an adverse effect on lawful resident workers.” Id. at 353 n.1. In determining that this statute was not a regulation of immigration, the court noted that California “adopt[ed] federal standards.” Id. at 355. Another California proposition was held to be an impermissible regulation of immigration where the statute itself provided classification of noncitizens. LULAC, 908 F. Supp. at 772. The California proposition defined individuals as “(1) citizens; (2) lawfully admitted as a permanent resident; or (3) lawfully admitted for a temporary period.” Id. The district court in that case held that “the state has created its own scheme setting forth who is, and who is not, entitled to be in the United States.” Id. (emphasis in original).
A district court in Virginia, considering state university admission standards for immigrant applicants, held that after De Canas, the question under the first test is “whether defendants’ . . .
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policies simply adopt federal standards, in which case, they are not invalid under the Supremacy Clause, or instead create and apply state standards to assess the immigration status of applicants, in which case the policies may run afoul of the Supremacy Clause.” Equal Access Education, 305 F. Supp. 2d at 603.
Plaintiffs argue that the Ordinance is a “regulation of immigration” because it creates a new classification of immigration. The Ordinance incorporates the definitions used in 24 CFR 5.504, regulations issued by the United States Department of Housing and Urban Development outlining restrictions on federal housing subsidies to noncitizens. Plaintiffs argue that incorporating federal housing subsidy standards precludes several classes of noncitizens from renting an apartment in Farmers Branch who lawfully reside in the country but are ineligible for housing assistance. For example, federal housing assistance is not available to certain aliens lawfully residing in the United States. 42 USC § 1436a(a)(1) (allowing federal housing assistance to “alien[s] lawfully admitted for permanent residence” but “excluding, among others, alien visitors, tourists, diplomats, and students who enter the United States temporarily . . .”). Plaintiffs argue that using these standards is tantamount to the city of Farmers Branch issuing new immigration regulations.
Defendant responds that while the Ordinance does refer to 24 CFR 5, the Ordinance provides that the evidence that noncitizens must show to determine their “eligible immigration status” is simply “[a] form designated by ICE as acceptable evidence of immigration status.” Ord. § 3(B)(f)(3)(ii)(b). The city argues that any legal resident may rent an apartment in Farmers Branch regardless of that resident’s eligibility for federal housing subsidies. The city also argues that the Ordinance does not effect new immigration regulations. The Ordinance states: “The intention of this Ordinance and the exercise of the police power of the City is not an attempt or effort to promulgate
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new and additional Immigration Laws or to conflict in any manner with the Federal Government’s promulgation and enforcement of Immigration Laws.” Id. § 4.
The court determines that despite the disclaimer in the Ordinance, Farmers Branch has not simply adopted federal immigration regulations, as required by the first De Canas test, but rather has adopted federal housing regulations used to determine noncitizens’ eligibility for assistance. The Ordinance, therefore, is preempted because it is a “regulation of immigration,” a regulatory power reserved for the federal government. The Ordinance is rife with references to the HUD regulations, and it is clear that the Ordinance depends on the scheme set out by the HUD regulations: “the U.S. Department of Housing and Urban Development regulations stipulate that rental tenants must submit evidence of citizenship or immigration status consistent with 24 CFR 5, et seq.;” “24 CFR 5, et seq., the general HUD provisions, provide for a uniform and non-discriminatory certification process for citizenship and immigration status;” “the HUD certification process has been in place for many years and is currently in use;” “the City Council finds and determines that the benefits and protections provided through the HUD citizenship and immigration status certification processes would also benefit the City;” “the City of Farmers Branch has determined that it is a necessity to adopt citizenship and immigration certification requirements for apartment complexes to safeguard the public, consistent with the provisions of 24 CFR 5, et seq.” Ord. Preamble.
The Ordinance is replete with references to “eligible immigration status,” and the Ordinance defines this term as “consistent with 24 CFR 5.504.” Ord. § 3(B)(f)(1). As Plaintiffs have pointed out, the HUD regulations simply define which noncitizens are eligible for federal housing subsidies, see 24 CFR 5.508(a); the HUD regulations do not determine whether a person is legally or illegally
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in the United States. The HUD regulations require that immigration status is verified through an automated INS system or by INS itself. See 24 CFR § 5.512 (c)-(d). Moreover, certain individuals who are legally in the country are statutorily excepted from receiving federal housing assistance. 42 USC § 1436a(a)(1) (“excluding, among others, alien visitors, tourists, diplomats, and students who enter the United States temporarily”).
The city’s own evidence also establishes that the Ordinance relies heavily on the HUD regulations for the application and enforcement of the Ordinance. The city sent a letter to apartment complexes in Farmers Branch describing the “verification form requirements” adopted by city staff for compliance with the Ordinance. Def.’s App. 33. For a “noncitizen with eligible immigration status,” the letter requires a signed declaration of “eligible immigration status” and one of several documents described in the letter. Id. at 34. The letter lists the following acceptable documents: Form I-551, Form I-94, Form I-668, Form I-668B, “receipt issued by the DHS indicating that an application for a replacement document has been entered and verified, and the document would fall into an aforementioned category,” or “any other form designated by the Immigration and Customs Enforcement Department as acceptable evidence of immigration status.” Id. The letter to the apartment complexes included samples of a declaration format, verification consent form, and owner’s summary of family. Id. at 39-43. On the face of these documents, it is clear that they are HUD forms; each document states “HUD Occupancy Handbook” on the bottom of each page. Id. The “declaration format” also lists documents that must be submitted by a noncitizen with “eligible immigration status” and includes all the forms included in the letter from the city but omits the last category of documentation, any form designated by ICE. Id. at 40-41.
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The city points out that the Ordinance specifically requires that a noncitizen show a “form designated by ICE as acceptable evidence of immigration status,” Ord. § 3(B)(f)(3)(ii)(b), and the city argues that the Ordinance “does not purport to adopt those HUD regulations in their entirety, nor does it deny housing to certain individuals who are legally entitled to reside in this country, but who are not eligible to reside in public housing.” Def.’s Resp. 12. The court is not persuaded by the city’s argument. While noncitizens must provide evidence of a “form designated by ICE,” this is only one of three pieces of evidence that such an individual must provide. The Ordinance requires that a noncitizen provide as evidence of “eligible immigration status:”
a. A signed declaration of eligible immigration status; b. A form designated by ICE as acceptable evidence of
immigration status; and c. A signed verification consent form. Ord. § 3(B)(f)(3)(ii) (emphasis added). A noncitizen is still bound by the requirement of a declaration of his “eligible immigration status,” a term defined consistent with 24 CFR 5 and the HUD regulations regarding housing subsidy eligibility. The court determines that the city’s reliance on the HUD regulations and documents demonstrates that the city is doing more than adopting federal immigration requirements; the city appears to be adopting federal regulations regarding housing benefits to noncitizens and using those regulations to define which noncitizens may rent an apartment in Farmers Branch. The Ordinance’s clear intent to adopt the “benefits and protections provided through the HUD citizenship and immigration status certification processes,” the use of the term “eligible immigration status” as defined in the context of federal housing subsidies, the requirement that noncitizens file a declaration regarding their “eligible immigration status,” and the use of HUD definitions and forms is in effect defining immigration status for the purpose of the Ordinance. Because this definition is
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not consistent and coextensive with federal immigration standards, the city has attempted to regulate immigration in violation of the Constitution and the Supremacy Clause. The HUD regulations do not include all noncitizens lawfully in the country under federal immigration standards; because the Ordinance relies on or adopts HUD regulations, certain legal noncitizens will be excluded from renting an apartment in Farmers Branch. For example, a landlord who rents to certain noncitizens who are legally in the country temporarily, such as students, would be subject to criminal sanctions.
Plaintiffs also contend that because the Ordinance requires the determination of immigration status to be made by the owners and property managers of apartments in Farmers Branch, the Ordinance essentially deputizes these private individuals as federal immigration officials and takes a federal function away from the federal government. The Ordinance places the burden initially on the owner or property manager to ask tenants or potential tenants for evidence of citizenship or immigration status. Ord. § 3(B)(f)(3). Tenants may appeal to a City Building Official if they are denied occupancy because of immigration status. Id. § 3(B)(f)(3)(vii).
In LULAC, the district court held that a California proposition was a regulation of immigration, in part, because the law required that state agents determine immigration status. 908 F. Supp. at 770. That court noted that:
state agents are unqualified – and also unauthorized – to make independent determinations of immigration status. . . . Indeed, determinations of immigration status by state agents amounts to immigration regulation whether made for the purposes of notifying aliens of their unlawful status and reporting their presence to INS or for the limited purpose of denying benefits. Id. The court determines that the Ordinance burdens private citizens and city officials with making immigration status decisions based upon a scheme that does not adopt federal immigration
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Case 3:06-cv-02371 Document 81 Filed 05/21/2007 Page 16 of 20
standards. Accordingly, the Ordinance is a “regulation of immigration” inconsistent with the federal government’s rights and in violation of the first De Canas test.
Because the court has determined that the Ordinance is preempted, the court finds, at this stage, that there is a substantial likelihood that Plaintiffs will succeed on the merits of their preemption and Supremacy Clause claims. Given the court’s determination that the Ordinance violates the Supremacy Clause, the court does not reach the parties’ additional arguments regarding the other alleged constitutional and state law violations raised by Plaintiffs.
2. Threat of Immediate and Irreparable Harm Plaintiffs must establish a substantial likelihood that they will suffer irreparable injury if a temporary restraining order is not granted. Clark, 812 F.2d at 993. A party may be irreparably injured in the face of the threatened enforcement of a preempted law. Morales v. Trans World Airlines, Inc., 504 U.S. 374, 381 (1992). The court may enjoin state officers “who threaten and are about to commence proceedings, either of a civil or criminal nature, to enforce against parties affected an unconstitutional act, violating the Federal Constitution.” Id. (quoting Ex parte Young, 209 U.S. 123, 145-147 (1908)). Moreover, “[w]hen an alleged deprivation of a constitutional right is involved, most courts hold that no further showing of irreparable injury is necessary.” Louisiana Seafood Mgm’t Council, Inc. v. Foster , 917 F. Supp. 439, 442 n.1 (E.D. La. 1996) (quoting 11A Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Fed. Prac. & Proc. § 2948.1, p. 160-161 (1995)). The landlord plaintiffs have established that they will be subject to fines and criminal penalties if they violate the Ordinance once it is in effect. See Ord. § 6 (“any person violating any of the provisions of this ordinance shall be deemed guilty of a misdemeanor and upon conviction
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Case 3:06-cv-02371 Document 81 Filed 05/21/2007 Page 17 of 20
thereof shall be fined in a sum not to exceed $500”). The declarations submitted by Plaintiffs also establish that the Ordinance is likely to cause irreparable harm to the landlord plaintiffs’ business because the landlords will lose business to neighboring cities and because the Ordinance casts doubt on Farmers Branch landlords’ ability to lease to corporate tenants or through the internet. The tenant plaintiffs have also established irreparable harm because the Ordinance creates uncertainty with regard to legal aliens without documentation sufficient under the Ordinance. One result of this uncertainty is likely to require the tenant plaintiffs to relocate, change jobs and schools, or remain in Farmers Branch and face eviction, all harms that may not be remedied by monetary damages. E.g., Enterprise Int’l, Inc. v. Corporacion Estatal Petrolera Ecuatoriana, 762 F.2d 464, 472-473 (5th Cir. 1985) (“[A]n injury is irreparable only if it cannot be undone through monetary remedies.”) (internal citations and quotations omitted). Accordingly, the court determines that the second requirement has been met by Plaintiffs.
3. Harm to the Plaintiffs versus Harm to Farmers Branch The court also determines that greater injury will result from denying the temporary restraining order than from granting it. Clark, 812 F.2d at 993. The city argues that the voters of Farmers Branch have expressed their approval of the Ordinance. The court recognizes the election results, but does not find that the voters’ approval shows any harm to Farmers Branch by granting a temporary restraining order. The City Council passed the Ordinance nearly four months ago and set an election for May 12, 2007. The court simply does not understand how a delay of a few weeks in maintaining the status quo will outweigh the harm to Plaintiffs if the temporary restraining order is granted. Given that Plaintiffs have established the likelihood of irreparable injury, the
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Case 3:06-cv-02371 Document 81 Filed 05/21/2007 Page 18 of 20
court determines that denying a temporary restraining order would be more harmful than any injury to Farmers Branch by denying the applications.
4. The Public Interest Finally, the court determines that a temporary restraining order in this case is in the public interest. As the Fifth Circuit Court of Appeals has noted, the “public interest . . . does not extend so far as to allow . . . actions that interfere with the exercise of fundamental rights.” Deerfield Med. Center v. City of Deerfield Beach, 661 F.2d 328, 338-339 (5th Cir. 1981). Given that the court has determined at this juncture that the Ordinance is preempted by the Constitution, the public interest is served by enjoining the effective date and enforcement of a local law that the court has initially determined to be at odds with the Constitution. IV. Conclusion and Temporary Restraining Order All in all, the court concludes that only the federal government may determine whether an individual is legally in the United States. Farmers Branch, rather than deferring to the federal government’s determination of immigration status, has created its own classification scheme for determining which noncitizens may rent an apartment in that city. Farmers Branch has failed to adopt federal immigration standards. The Ordinance adopts federal housing regulations that govern which noncitizens may receive housing subsidies from the federal government, not federal immigration standards that determine which noncitizens are legally in this country. Because Farmers Branch has attempted to regulate immigration differently from the federal government, the Ordinance is preempted by the Supremacy Clause. The court recognizes that illegal immigration is a major problem in this country, and one who asserts otherwise ignores reality. The court also fully understands the frustration of cities
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Case 3:06-cv-02371 Document 81 Filed 05/21/2007 Page 19 of 20
attempting to address a national problem that the federal government should handle; however, such frustration, no matter how great, cannot serve as a basis to pass an ordinance that conflicts with federal law.
The court, for the reasons herein stated, determines that the Villas and Vasquez Plaintiffs have satisfied each of the elements necessary to obtain a temporary restraining order. Accordingly, the court grants the Vasquez Plaintiffs’ Application for Temporary Restraining Order, grants the Villas Plaintiffs’ Application for Temporary Restraining Order, and denies the Barrientos Plaintiffs’ Application for Temporary Restraining Order.
The court therefore orders that the City of Farmers Branch, Texas, and its officers, agents, servants, employees, representatives, or attorneys, are hereby temporarily restrained and prohibited from effectuating or enforcing Ordinance 2903, pending a hearing on Plaintiffs’ requests for preliminary injunction. As a temporary restraining order is to preserve the status quo, and this temporary restraining order is based upon the record as it currently exists, the determinations made by the court are not final and may change after additional facts are presented, the issues of law are further developed, and the court has had an opportunity to conduct a more thorough analysis of the legal issues presented.
Rule 65(c) of the Federal Rules of Civil Procedure provides: “No restraining order . . . shall issue except upon the giving of security by the applicant, in such sum as the court deems proper, for the payment of such costs and damages as may be incurred or suffered by any party who is found to have been wrongfully enjoined or restrained.” Fed. R. Civ. P. 65(c). Plaintiffs ask the court to waive the bond requirement without providing any authority for such a waiver. Defendant objects and notes that without a bond, it cannot recover any damages for wrongful injunction. W.R.
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Case 3:06-cv-02371 Document 81 Filed 05/21/2007 Page 20 of 20 Grace & Co. v. Local Union 759, 461 U.S. 757, 770 n.14 (1983). Farmers Branch does not specify what damages it may suffer by the issuance of a temporary restraining order. The court determines that at most the harm or damage to Farmers Branch would be minimal, and that a bond of $1,500 per group of Plaintiffs is sufficient.
Accordingly, the court hereby sets a bond in the amount of $1,500 for the Villas Plaintiffs and $1,500 for the Vasquez Plaintiffs. This temporary restraining order shall not take effect until each group of Plaintiffs tenders to the clerk of the court $1,500 cash, or a bond for $1,500 in a form approved by the clerk of the court, in compliance with Rule 65(c) of the Federal Rules of Civil Procedure.
It is so ordered this 21st day of May, 2007. _________________________________ Sam A. Lindsay United States District Judge
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 Case 3:06-cv-02371 Document 109 Filed 06/19/2007 Page 1 of 33

US. DISTRlCTCOURT NORTHERN DISTRICT OF TEXl

IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS DALLAS DIVISION

FILED
E l JUN 1 9 2007
CLERK,U.S. DISTRICTC O W

VILLAS AT PARKSIDE PARTNERS

3

d/b/a VILLAS AT PARKSIDE, et al.,

3

3

Plaintiffs,

3

BY
Deputy

3

v.

3 Civil Action No. 3:06-CV-2371-L

THE CITY OF FARMERS BRANCH, Defendant.

3 (consolidated with CA No. 3:06-CV-2376-L 3 and CA NO.3:07-CV-0061-L) 3 3

MEMORANDUM OPINION AND ORDER GRANTING PRELIMINARY INJUNCTION

Beforethe court are: (1) [VillasPlaintiffs'] Application for TemporaryRestrainingOrderand

Preliminary Injunction, filed May 16, 2007; and (2) Vasquez Plaintiffs' Motion for Preliminary

Injunction, filed May 24, 2007. After considering the motions, responses, replies, supplemental

briefs, amicus curiae brief, record, and applicable law, the court grants the Villas Plaintiffs'

Application for Preliminary Injunction and grants the Vasquez Plaintiffs' Motion for Preliminary

Injunction.

I. Procedural and Factual Background

Plaintiffs ask the court to preliminarily enjoin Farmers Branch Ordinance 2903 (the

"Ordinance"), an ordinance adopted by the Farmers Branch City Council on January 22,2007. The

Ordinance was the second iteration of a law originally adopted by the City Council on November

13, 2006, Ordinance 2892. A state court issued a temporary restraining order enjoining

implementation of Ordinance 2892 on January 9,2007, findingthat Ordinance 2892 "may have been

approved and adopted in violation of the Texas Open Meetings Act." Villas App. 19. Thereafter,

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Case 3:06-cv-02371 Document 109 Filed 06/19/2007 Page 2 of 33
the City Council repealed Ordinance 2892 and adopted the Ordinance. The Ordinance called for an election to allow the voters of Farmers Branch to vote for or against it. Ordinance (hereinafter,
"Ord.") 5 5.
On May 12, 2007, the voters of Farmers Branch approved the Ordinance by a margin of
4,058 "for," and 1,941 "against." The Ordinance was to go into effect May 22,2007. Id. 5 7. On
May 21,2007, however, the court granted Plaintiffs' applicationsfor temporary restraining order, temporarily restraining the effective date and enforcement of the Ordinance. See Mem. Op. and Order Granting TRO (May 2 1,2007). After the court's ruling, the court allowed the parties to file supplemental briefing. The court held a preliminary injunction hearing on June 5, 2007, and extended the temporary restraining order until June 19, 2007. At the hearing, the city provided additional exhibits, including three versions of proposed changes to the Ordinance. The court allowed additional supplemental briefing by the parties after the preliminary injunction hearing.
The title of the Ordinance is: An ordinancerepealing Ordinance 2892; adopting revised apartment complex rental licensing standards, mandating a citizenship certification requirement pursuant to 24 [Code of Federal Regulations] 5 et seq.; repealing Ordinance 2900; calling an election for May 12, 2007, to consider this ordinance (for or against); providing for enforcement; providing a penalty clause; providing a severability clause; and providing an effective date.
Ord. Title (original in all capital letters). The preamble to the Ordinance states that "the City Council finds and determines that the benefits and protections provided through the HUD citizenship and immigration status certification processes would also benefit the City;" that "the City of Farmers Branch is authorized to adopt ordinances pursuant to its police power to protect the health, safety, and welfare of its citizens;" and that "the City of Farmers Branch has determined that it is a necessity
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Case 3:06-cv-02371 Document 109 Filed 06/19/2007 Page 3 of 33
to adopt citizenship and immigrati on certification requirements for apartment complexes to safeguard the public, consistent with the provisions of 24 CFR 5, et seq." Id. Preamble.' The Ordinance also states that "the purposes of this Ordinance are to promote the public health, safety, and general welfare of the public." Id.
The Ordinance amends Chapter 26, Article IV of the City's Code of Ordinances relating to apartment complex rental. Specifically,the Ordinance adds language to section 26-1 16(d)(3) and
creates a new section 26-116(Qtitled "Citizenship or Immigration StatusVerification." Id. 8 3(A)-
(B). Subsection(1) of the new section (f)defines various terms used in the section, and states that
the definitions are consistent with 24 CFR 5.504. Id. 5 3(B)(f)(l). The term "Evidence of
citizenship or eligible immigration status" is defined as "the documents which must be submitted to evidence citizenship or eligible immigration status for residency in the United States." Id. "Citizen" is defined as "a citizen or national of the United States." Id. "National means a person who owes permanent allegiance to the United States, for example, as a result of birth in a United States territory or possession." Id. Noncitizen is defined as "a person who is neither a citizen nor national of the United States." Id.
Subsection(2)provides: "The owner andlor property manager shall require as a prerequisite to entering into any lease or rental arrangement, including any lease or rental renewals or extensions, the submission of evidence of citizenship or eligible immigration status for each tenant family
consistent with subsection (3)." Id. 8 3(B)(f)(2).
'The "whereas"clauses ofthe Ordinanceare incorporatedby section 1 ofthe Ordinance: "all matters stated hereinabove are found to be true and correct and are incorporated into the body of this Ordinance by
reference as if copied in their entirety." Ord. 8 1 .
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Case 3:06-cv-02371 Document 109 Filed 06/19/2007 Page 4 of 33
Subsection (3) relates to "Evidence of citizenship or eligible immigration status" and lists
the evidence required to show tenants' citizenship or immigration status. Id. 5 3(B)(f)(3). This
section sets out the documentation that tenants must provide. Noncitizens must provide: (1) a signed
declaration of "eligible immigration status;" (2) a "form designated by [United States Immigration
and Customs Enforcement]* as acceptable evidence of immigration status;" and (3) a "signed
verification consent form." Id. 5 3(B)(f)(3)(ii)(a)-(c).
Subsection (4) outlines the owner and/or property managers' obligations with regard to the
evidence of citizenship or "eligible immigration status:"
(i) The owner and/or property manager shall request and review original documents of eligible citizenship or immigration status. The owner and/or property manager shall retain photocopies of the documents for its own records and return the original documents to the family. Copies shall be retained by the owner andlor property manager for a period of not less than two (2) years after the end of the family's lease or rental.
(ii) The owner and/or property manager shall require that each familymember submitevidenceof citizenship or immigration status only once during continuous occupancy. The owner and/or property manager is prohibited from allowing the occupancy of any unit by any family which has not submitted the required evidence of citizenship or eligible immigration
status under this Section . . . .
Id. 5 3(B)(f)(4)(i)-(ii)#
Section 4 of the Ordinance provides both a clause regarding severability of portions of the
Ordinance and a statement regarding the intent and effect of the Ordinance in relation to federal
immigration law:
'The Ordinance defines "ICE" as "Immigrationand Customs Enforcement Department." The court believes that this is a misnomer,as United States Immigrationand Customs Enforcementis a component of the United States Departmentof Homeland Security,and therefore not a separate United StatesDepartment. Memorandum Opinion and Order Granting Preliminary Injunction -Page 4

Case 3:06-cv-02371 Document 109 Filed 06/19/2007 Page 5 of 33
If any section, paragraph, subdivision, clause or phrase of this Ordinance shall be adjudged invalid or held unconstitutional, the same shall not affect the validity of this Ordinance as a whole or any part of any provision thereof other than the part so decided to be invalid or unconstitutional. The intention of this Ordinance and the exercise of the police power of the City is not an attempt or effort to promulgate new and additional Immigration Laws or to conflict in any manner with the Federal Government's promulgation and enforcement of Immigration Laws. Id. § 4 . Finally, the Ordinance includes a section describing penalties for violation. Specifically, section 6 of the Ordinance provides: "any person violating any of the provisions of this ordinance shall be deemed guilty of a misdemeanor and upon conviction thereof shall be fined in a sum not to exceed $500 and a separate offense shall be deemed committed upon each day during or on which a violation occurs or continues." Id. § 6. Two groups of plaintiffs3now challenge the Ordinance and ask the court to preliminarily enjoin the effective date and enforcement of the Ordinance. Plaintiffs argue that the Ordinance is preempted by federal law, that the Ordinance violates the Contracts Clause of the United States Constitution, that the Ordinance violates procedural and substantive due process, that the Ordinance violates the Equal Protection Clause of the United States Constitution, and that the Ordinance violates the Texas Local Government Code.
3TheVillas Plaintiffs are the owners and operators of apartmentcomplexes in FarmersBranch. The Vasquez Plaintiffs include residents of apartment complexes in Farmers Branch as well as the owners and managers of apartment complexes in the city. A third group of plaintiffs, the Barrientos Plaintiffs, was
dismissed by the court for lack of standing on June 1,2007. Memorandum Opinion and Order Granting Preliminary Injunction -Page 5

Case 3:06-cv-02371 Document 109 Filed 06/19/2007 Page 6 of 33
11. Legal Standard - Application for Preliminary Injunction There are four prerequisites for the extraordinary relief of a temporary restraining order or
preliminary injunction. To prevail, a plaintiff must demonstrate: (i) a substantial likelihood of success on the merits; (ii) a substantialthreat of immediate and irreparable harm for which it has no adequate remedy at law; (iii) that greater injury will result from denying the temporary restraining order than from its being granted; and (iv) that a temporary restraining order will not disserve the public interest. Clark v. Prichard, 812F.2d 991,993 (5th Cir. 1987); Canal Authority v. Callaway, 489 F.2d 567,572 (5th Cir. 1974)(en banc). The party seeking such relief must satisfl a cumulative burden of proving each of the four elements enumerated before a temporary restraining order or preliminary injunctioncan be granted. MississippiPower andLight Co. v. United Gas Pipeline, 760 F.2d 618,621 (5th Cir. 1985);Clark, 812 F.2d at 993. Otherwise stated, if a party fails to meet any of the four requirements, the court cannot grant the temporary restraining order or preliminary injunction. 111. Analysis
A. Introduction As noted in the court's order granting the applications for temporary restraining order, the court is mindful of the immense public attention focused on the Ordinance. As the court recognized earlier,illegal immigrationis a seriousproblem, but the absenceof adequatefederalenforcementand the concomitant frustration of Farmers Branch do not allow the city to pass an ordinance in conflict with the Constitution. Similarly,though the will of the people of Farmers Branch was expressed in the May 12,2007election,overwhelmingpublic support for a law is not reason for a court to enforce it when it conflictswith the Constitution. Historically,the will of the people, through representative
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Case 3:06-cv-02371 Document 109 Filed 06/19/2007 Page 7 of 33
democracy,was expressed in the original thirteen states' ratificationof the Constitution that provided for the inclusion of the Supremacy Clause. Moreover, the democratic process requires not only a system whereby citizens may express themselves by voting, but also a balanced system where it is incumbent upon the federal courts to uphold the Constitution and reject laws - whether passed by a legislative body, endorsed through public referendum, or imposed through custom and practice that violate or conflict with the Constitution. Prohibiting the enforcement of or invalidating a law repugnant to the Constitution ushers in no new concept or principle in American jurisprudence. American jurisprudence is replete with case law in which federal courts have struck down or invalidated laws contrary to the Constitution that had the blessings of states, local governments, and the public at large. Accordingly, what determines the constitutionality of an ordinance or regulation passed by a city is existing legal precedent, not whether the ordinance or regulation has overwhelming public support.
B. Likelihood of Success on the Merits Plaintiffs must establish a substantial likelihood of success on the merits. Clark, 812 F.2d at 993. Plaintiffs argue that the Ordinance is unconstitutional on a number of grounds: (1) the Ordinance is preempted and therefore invalid under the Supremacy Clause of the Constitution; (2) the Ordinance violates substantive and procedural due process; (3) the Ordinance violates the Equal Protection Clause of the Constitution; (4) the Ordinance violates the Contracts Clause of the United States Constitution; and (5) the Ordinance violates the Texas Local Government Code.
1. Preemption The court turns first to Plaintiffs' arguments that the Ordinance is preempted by the Constitution and federal law. The Supremacy Clause of the Constitution states, "This Constitution,
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Case 3:06-cv-02371 Document 109 Filed 06/19/2007 Page 8 of 33
and the Laws of the United States . . . shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby . . . ." U.S. Const., art. VI, cl. 2. "A fundamental principle of the
Constitution is that Congress has the power to preempt state law." Crosby v. Nut '1 Foreign Trade Council, 530 U.S. 363, 372 (2000) (citing U.S. Const., art. VI, cl. 2; Gibbons v. Ogden, 9 Wheat. 1,211 (1824); Savage v. Jones, 225 U.S. 501,533 (1912); and California v. ARC America Corp., 490 U.S. 93, 101 (1989)).
The Supreme Court has held that state immigration laws can be preempted by federal law in several ways. De Canas v. Bica, 424 U.S. 351 (1976). In that case, the Court noted that only the federal government may issue a "regulation of immigration," which the court defined as "a determination of who should or should not be admitted into the country, and the conditions under which a legal entrant may remain." Id. at 355. The Court also noted that "[elven when the Constitution does not itself commit exclusive power to regulate a particular field to the Federal Government, there are situations in which state regulation, although harmonious with federal regulation, must nevertheless be invalidated under the Supremacy Clause." Id. at 356. The Court
went on to note: "[Flederal regulation . . . should not be deemed preemptive of state regulatory
power in the absence of persuasive reasons either that the nature of the regulated subject matter permits no other conclusion, or that the Congress has unmistakably so ordained." Id. (brackets and ellipsis in original) (quoting Florida Lime &Avocado Growers v. Paul, 373 U.S. 132,142 (1963)).
District courts, construing the Supreme Court's decision in De Canas, have noted that the decision creates three tests for determining whether a state immigration law or regulation is preempted by federal law:
Under the first test, the Court must determine whether a state statute is a regulation of immigration. Since the power to regulate Memorandum Opinion and Order Granting Preliminary Injunction - Page 8

Case 3:06-cv-02371 Document 109 Filed 06/19/2007 Page 9 of 33
immigration is unquestionably exclusively a federal power, any state statute which regulates immigration is constitutionally prescribed.
Under the second test, even if the state law is not an impermissible regulation of immigration, it may still be preempted if there is a showing that it was the clear and manifest purpose of Congress to effect a complete ouster of state power-including state power to promulgate laws not in conflict with federal laws with respect to the subject matter which the statute attempts to regulate. In other words, a statute is preempted where Congress intended to occupy the field which the statute attempts to regulate.
Under the third test, a state law is preempted if it stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress. Stated differently, a statute is preempted under the third test if it conflicts with federal law making compliance with both state and federal law impossible.
League of United Latin American Citizens v. Wilson, 908 F. Supp. 755, 768 (C.D. Cal. 1995)
(hereinafter "LULAC") (internal citations and quotations omitted); see also Garrett v. City of
Escondido, 465 F. Supp. 2d 1043, 1055 (S.D. Cal. 2006); Equal Access Education v. Merten, 305
F. Supp. 2d 585,601-602 (E.D. Va. 2004).
Plaintiffs argue that the Ordinance fails each of the three tests. Defendants describe De
Canas as a "three-pronged test" for which Plaintiffs must establish each of the three prongs. The
court finds that De Canas creates three separate tests to be used in determining whether a state
immigration law is preempted; failure of any one of the De Canas tests requires the conclusion that
a state law is preempted. The court now addresses the first test.
a. "Regulation of Immigration"
The United States Constitution grants Congressthe exclusive power to "establish an uniform
Rule of Naturalization" and to "regulate Commerce with foreign Nations." U.S. Const. art. I 3 8,
cl. 4,3. The Court has repeatedly held that the "[plower to regulate immigration is unquestionably
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Case 3:06-cv-02371 Document 109 Filed 06/19/2007 Page 10 of 33
exclusively a federal power." De Canas, 424 U.S. at 354 (citing Passenger Cases, 7 How. 283 (1849); Henderson v. Mayor of New York, 92 U.S. 259 (1876); Chy Lung v. Freeman, 92 U.S. 275 (1876); Fong Yue Ting v. UnitedStates, 149U.S. 698 (1893));see also Plyler v. Doe, 457 U.S. 202, 225 (1982) ("The States enjoy no power with respect to the classification of aliens. This power is
committed to the political branches of the Federal Government. . . . [Olnly rarely are such matters
relevant to legislation by a State.") (internal citations and quotations omitted); Toll v. Moreno, 458 U.S. 1,10 (1982) ("Our cases have long recognized the preeminent role of the Federal Government with respect to the regulation of aliens within our borders."); Tram v. Raich, 239 U.S. 33,42 (1915)
("The authority to control immigration . . . is vested solely in the Federal government."). The
Supreme Court, nonetheless, "has never held that every state enactment which in any way deals with aliens is a regulation of immigration and thus per se pre-empted by this constitutional power, whether latent or exercised." De Canas, 424 U.S. at 355. Rather, a court must look to whether the state law is a "regulation of immigration," defined by the Supreme Court as "essentially a determination of who should or should not be admitted into the country, and the conditions under which a legal entrant may remain." Id.
In De Canas, the Supreme Court upheld a California statute that provided: "No employer shall knowingly employ an alien who is not entitled to l a a l residence in the United States if such employment would have an adverse effect on l a a l resident workers." Id. at 353 n.1. In determining that this statute was not a regulation of immigration, the court noted that California "adopt[ed] federal standards." Id. at 355. Another California proposition was held to be an impermissible regulation of immigration where the statute itself provided classification of noncitizens. LULAC, 908 F. Supp. at 772. The California proposition defined individuals as "(1)
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Case 3:06-cv-02371 Document 109 Filed 06/19/2007 Page 11 of 33

citizens; (2) lawfblly admitted as a permanent resident; or (3) lawfblly admitted for a temporary

period." Id. The district court in that case held that "the state has created its own scheme setting

forth who is, and who is not, entitled to be in the United States." Id. (emphasis in original).

A district court in Virginia, considering state university admission standards for immigrant
applicants, held that after De Canas, the question under the first test is "whether defendants' . . .

policies simply adopt federal standards, in which case they are not invalid under the Supremacy

Clause, or instead create and apply state standards to assess the immigration status of applicants, in

which case the policies may run afoul of the Supremacy Clause." Equal Access Education, 305 F.

Supp. 2d at 603.

I.

Adoption of HtTD Regulations

Plaintiffs argue that the Ordinance is a "regulation of immigration" because it creates a new

classification of immigration by incorporating the definitions used in 24 CFR 5.504, regulations

issued by the United States Department of Housing and Urban Development outlining restrictions

on federal housing subsidies to noncitizens. Plaintiffs contend that the Ordinance precludes several

classes of noncitizens from renting an apartment in Farmers Branch who lawfblly reside in the

country but are ineligible for housing assistance. For example, federal housing assistance is not
available to certain aliens lawfblly residing in the United States. 42 USC 5 1436a(a)(l) (allowing

federal housing assistance to "alien[s] lawfblly admitted for permanent residence" but "excluding,

among others, alien visitors, tourists, diplomats, and students who enter the United States

temporarily . . ."). Plaintiffs argue that using these standards is equivalent to the city of Farmers

Branch issuing new immigration regulations.

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Plaintiffs argue that the Ordinance itself is a "regulation of immigration" because restricting an individual's ability to live in Farmers Branch is tantamount to determining whether that individual is lawfully resident in the country. At the preliminary injunction, counsel for Plaintiffs argued:
Who can be here and the conditions upon which they can live includesFarmers Branch setting up a systemthat saysyou because of your immigration status cannot be here in Farmers Branch. You must go somewhere else. And it raises the specter of cities all over the place enacting a patchwork of inconsistent systems to enforce, to regulate immigration. Because of your immigration status, you cannot come into our town, and denying housing is effectively saying you cannot be here. You cannot live here. Trans. of Prelim. Inj. H'rg (June 5, 2007) (hereinafter, "Trans.") 75:7-16. Plaintiffs cite Traux v. Raich, a case in which the Supreme Court struck down an employment statute and held that "[tlhe assertion of an authority to deny to aliens the opportunity of earning a livelihood when lawfully admitted to the state would be tantamount to the assertion of the right to deny them entrance and
abode . . . ." 239 U.S. at 42. Plaintiffs also point to Takahashi v. Fish & Game Comm 'n, 334 U.S.
4.10,419 (1948), where the Court held that states "can neither add to nor take from the conditions lawfully imposed by Congress upon admission, naturalization and residence of aliens in the United States or the several states." Plaintiffs argue that because the Ordinance excludes certain legal residents- such as students,tourists, and diplomats- from lawfully residing in Farmers Branch, it is as if the city of Farmers Branch is imposing new regulations regarding who may enter the United States.
Defendant responds that while the Ordinancedoes refer to 24 CFR 5,the Ordinanceprovides that the evidence that noncitizens must show to determine their "eligible immigration status" is
simply "[a] form designated by ICE as acceptable evidence of immigration status." Ord. 8
3(B)(f)(3)(ii)(b). The city argues that any legal resident may rent an apartment in Farmers Branch Memorandum Opinion and Order Granting Preliminary Injunction - Page 12

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regardless of that resident's eligibility for federal housing subsidies. The city also argues that the Ordinance does not create new immigration regulations and that the stated intention of the city "is not an attempt or effort to promulgate new and additional Immigration Laws or to conflict in any manner with the Federal Government's promulgation and enforcement of Immigration Laws." Id.
9 4.
The city argues that the Ordinance does not violate the first De Canas test because it is not a "regulation of immigration" that is "a determinationof who should or should not be admitted into the country, and the conditions under which a legal entrant may remain." 424 U.S. at 355 (emphasis added). The city argues that the Ordinance does not affect any individual who is legally resident in the United States.
The city also arguesthat the court must construethe Ordinanceunder the assumptionthat the city intended for the Ordinance to comply with the Constitution and therefore read the Ordinance as simply adopting federal immigration standards. Defendant argues that the Ordinance must be
presumed to be effective and to not intentionally conflict with the Constitution. Tex. Gov. Code 5
311.021. "Statutes are given a construction consistent with constitutional requirements, when possible, because the legislature is presumed to have intended compliance with the state and federal constitutions." Brady v. Fourteenth Court of Appeals, 795 S.W.2d 712, 715 (Tex. 1990); see also United States v. Mississippi Dep 't of Public Safety, 321 F.3d 495,500 (5th Cir. 2003) ("[Tlhere is a time-honoredpresumptionthat a statuteis a constitutionalexerciseof legislativepower.") (internal citations, quotations, and brackets omitted). The city also argues that in its TRO order, the court construed the Ordinance in a way "that presumes its provisions to be wholly co-extensive with of the HUD regulations." Def.'s Supp. Resp. 4 (emphasis in original).
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The court does not read the Ordinance as adopting all HUD regulations, but the plain language of the Ordinance adopts definitions consistent with 24 CFR 5, which, as previously described, limits those with "eligible immigration status" to those noncitizens who are eligible for federal housing subsidies. The court has construed the Ordinance pursuant to the plain language of the statute,and it is not possible to construe the Ordinance as complyingwith the Constitutiongiven the language and legislative history that make clear that the city's intent, according to the Farmers Branch city attorney, was to adopt the "apartment licensing standards based on HUD lease
agreements . . . ." Vasquez Pls.' Reply App. 10. The title of the Ordinance itself incorporates the
HUD regulations, as the title of the Ordinance includes this phrase: "Adopting revised apartment complex rental licensing standards, mandating a citizenship certificationrequirementpursuant to 24 CFR 5 et seq." Ord. Title.
The court determines that despite the city's contention that it has intended to adopt federal immigration standards as required by the first De Canas test, it has adopted federal housing regulations used to determine noncitizens' eligibility for assistance. The Ordinance, therefore, is preempted because it is a "regulation of immigration," a regulatory power reserved for the federal government. The Ordinance is rife with references to the HUD regulations, and it is clear that the Ordinance depends on the scheme set out by the HUD regulations: the Ordinance is titled, in part, "mandating a citizenship certificationrequirement pursuant to 24 CFR 5 et seq." and the preamble states "the U.S. Department of Housing and Urban Development regulations stipulate that rental tenantsmust submit evidence of citizenship or immigration statusconsistent with 24 CFR 5,et seq.;" "24 CFR 5, et seq., the general HUD provisions, provide for a uniform and non-discriminatory certification process for citizenship and immigration status;" "the HUD certification process has
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been in place for many years and is currently in use;" "the City Council finds and determines that the benefits and protections provided through the HUD citizenship and immigration status certificationprocesses would also benefit the City;"and "the City of FarmersBranchhas determined that it is a necessity to adopt citizenship and immigration certification requirements for apartment complexes to safeguard the public, consistent with the provisions of 24 CFR 5, et seq." Id. Title, Preamble.
The Ordinanceis replete with references to "eligible immigrationstatus," and the Ordinance
defines this term as "consistent with 24 CFR 5.504." Id. 8 3(B)(f)(l). As Plaintiffs have pointed
out, the HUD regulations simply define which noncitizens are eligible for federal housing subsidies, see 24 CFR 5.508(a); the HUD regulations do not determine whether a person is legally or illegally in the United States. The HUD regulations require that immigration status is verified through an
automated INS system or by INS itself. See 24 CFR 5 5.512 (c)-(d). Moreover, certain individuals
who are legallyin the country are statutorilyexcepted from receiving federal housing assistance. 42
USC 8 1436a(a)(l) ("excluding, among others, alien visitors, tourists, diplomats, and students who
enter the United States temporarily"). Accordingly, the Ordinance would affect the "conditions under which a legal entrant may remain," De Canas, 424 U.S. at 355, because it excludes certain legal residents from renting an apartment in Farmers Branch.
The city's own evidence also establishes that the Ordinance relies heavily on the HUD regulations for the application and enforcement of the Ordinance. The city sent a letter to apartment complexes in Farmers Branch describing the "verification form requirements" adopted by city staff for compliance with the Ordinance. Def.'s App. 62. For a "noncitizen with eligible immigration status," the letter requires a signed declaration of "eligible immigration status" and one of several
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documents described in the letter. Id. at 62-63. The letter lists the following acceptable documents: Form 1-551,Form 1-94?Form 1-668, Form I-668B, "receipt issued by the DHS indicating that an application for a replacement document has been entered and verified, and the document would fall into an aforementioned category," or "any other form designated by the Immigration and Customs Enforcement Department as acceptable evidence of immigration status." Id. The letter to the apartment complexes included samples of a declaration format, verification consent form, and owner's summary of family. Id. at 64-68. On the face of these documents, it is clear that they are HUD forms; each document states "HUD Occupancy Handbook" on the bottom of each page. Id. The "declaration format" also lists documents that must be submitted by a noncitizen with "eligible immigration status" and includes all the forms included in the letter from the city but omits the last category of documentation, any form designated by ICE. Id. at 64-65.
The city points out that the Ordinance specifically requires that a noncitizen show a "form designated by ICE as acceptable evidenceof immigration status," Ord. $ 3(B)(f)(3)(ii)(b),and the city arguesthat the Ordinance"does not purport to adopt those HUD regulationsin their entirety,nor does it deny housing to certain individuals who are legally entitled to reside in this country, but who are not eligible to reside in public housing." Def.'s Resp. 12. The court is not persuaded by the city's argument. While noncitizens must provide evidence of a "form designated by ICE," this is only one of three pieces of evidence that such an individual must provide. The Ordinance requires that a noncitizen provide as evidence of "eligible immigration status:"
a. A signed declaration of eligible immigration status; b. A form designated by ICE as acceptable evidence of
immigration status; and c. A signed verification consent form.
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Ord. 5 3(B)(f)(3)(ii) (emphasis added). A noncitizen is still bound by the requirement of a
declaration of his or her "eligible immigration status," a term defined consistent with 24 CFR 5 and the HUD regulations regarding housing subsidy eligibility.
The court determines that the city's reliance on the HUD regulations and documents demonstrates that the city is doing more than adopting federal immigration requirements; the city adopts federal regulations regarding housing benefits to noncitizens and uses those regulations to define which noncitizens may rent an apartment in Farmers Branch. The Ordinance's clear intent to adopt the "benefits and protections provided through the HUD citizenship and immigration status certification processes," the use of the term "eligible immigration status" as defined in the context of federal housing subsidies, the requirement that noncitizens file a declaration regarding their "eligible immigration status," and the use of HUD definitions and forms is in effect defining immigration status for the purpose of the Ordinance. Because this definition is not consistent and coextensive with federal immigration standards, the city has attempted to regulate immigration in violation of the Constitution and the Supremacy Clause. The HUD regulations do not include all noncitizens l a h l l y in the country under federal immigration standards; because the Ordinance relies on or adopts HUD regulations, certain legal noncitizens will be excluded from renting an apartment in Farmers Branch. For example, a landlord who rents to certain noncitizens who are legally in the country temporarily, such as students, would be subject to criminal sanctions.
ii. Verification of Immigration Status Plaintiffs also contend that because the Ordinance requires the determination of immigration status to be made by the owners and property managers of apartments in Farmers Branch, the Ordinance essentially deputizes these private individuals as federal immigration officials and takes
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a federal function away from the federal government. The Ordinance places the burden initially on the owner or property manager to ask tenants or potential tenants for evidence of citizenship or
immigration status. Ord. 5 3(B)(f)(3). Tenants may appeal to a City Building Official if they are denied occupancy because of immigration status. Id. 5 3(B)(f)(3)(viii).
The city argues that its Ordinance is not a "regulation of immigration" because it does not determine who may be in the country and because the Ordinance simply requires the collection of immigration information. Specifically, the city argued that the "Ordinance's provisions simply require that an apartment employee collect and maintain certain immigration documentation." Def.'s Supp. Resp. 5 (emphasis added). The city also argued at the preliminary injunction hearing that any adoption of the HLTD regulations is limited to the HUD document collection requirements: "The only portion of the HUD regulations that are adopted by the ordinances [sic] are what
documentation do you need to present. . . . All the ordinance says is that HUD has a documentation
recordkeeping scheme that has been in place and adopts that as the recordkeeping system adopted by the City." Trans. 57:ll-13, 17-20. Finally, the city argues that its collection of immigration documents will assist the federal government in enforcing immigration laws.
Defendant argues that document collection related to immigration status by states occurs regularly in a variety of contexts. The majority of the examples provided by Defendant, however,
is based uponfederal law. See 8 USC 5 1324a(b)(federal law prohibiting unlawful employmentof aliens); 42 USC 5 1320b-7(b)(l) (Aid to Families with Dependent Children); 42 USC 5 1320b7(b)(2) (Medicaid); 7 USC 5 2015(f) (Food Stamps). Although these examples include state
collection of immigration status, it remains that these regulations are issued by the federal government, and not a city.
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Defendant does cite examples of state determination of immigration status for purposes of
voter's registration and driver's licenses; however, these programs appear to wholly adopt federal
immigration standards. Defendant cites Gonzalez v. Arizona, 485 F.3d 1041 (9th Cir. 2007), for the
proposition that a state may require evidenceof citizenshipto obtain a voter's registrationcard. The
Arizona law at issue provided:
"Satisfactory evidence of citizenship" may be shown by including, with the voter registration form, any of the following: the number of
an Arizona driver's license or non-operating identification license . . .; a legible copy of a birth certificate; a legible copy of a United
Statespassport; United Statesnaturalizationdocumentsor the number of the certificate of naturalization; "other documents or methods of proof that [may be] established pursuant to" federal immigration law."
Id. at 1047 (brackets in original). Defendant cites to a section of the Texas Transportation code,
arguing that Texas requires proof of immigration status to obtain a license. The section, applicable
to "agreements with foreign countries," also appears consistent with federal immigration standards:
A person who is not a citizen of the United States must present to the department documentation issued by the United States agency responsiblefor citizenshipand immigrationauthorizingthe person to be in the United States before the person may be issued a driver's license under an agreement under this section.
Tex. Transp. Code 5 521.0305(c). Additionally,Defendant cites a Georgia case for the proposition
that Georgia also requires proof of immigrationstatusto obtaina license. John Doe No. 1v. Georgia
Dep't of Public Safety, 147 F. Supp.2d 1369 (N.D. Ga. 2001). While the court dismissed the
argument that the statute was a "substantial burden upon national immigration policy," the challenged law applied federal immigration standards. Id. at 1376. The Georgia law provides: "no
person shall be considered a resident for purposes of this chapter unless such person is either a
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United States citizen or an alien with legal authorization from the U.S. Immigration and
Naturalization Service." Ga. Code Ann. 9 40-5-l(15).
Plaintiffsarguethat the Ordinancerequires landlords to make determinationsof immigration status. The Vasquez Plaintiffs point out that landlords must determine whether a document is
sufficient to show "eligible immigration status." Ord. 9 3(B)(f)(2). The Ordinance requires that
landlords"request and review original documents of eligiblecitizenshipor immigration status." Id. at 93(B)(f)(4)(i)(emphasisadded). Finally,the Vasquez Plaintiffspoint to Defendant's own exhibit, the letter from the city to apartment complex owners and managers, which states that apartment owners and managers "must verijj citizenship or immigration status for each occupant of an apartment prior to entering into a new lease agreement." Def.'s App. 62 (emphasis added).
The court rejects the city's thinly-veiled argument that tries to distinguish its Ordinance as no more than a system of recordkeeping that is intended to assist the federal government in its enforcement of immigration laws. While the city may describe the Ordinance in this way, it is clear that the actual text of the Ordinance makes the provision of immigration documentation a
"prerequisite" to the renting of an apartment in Farmers Branch, see Ord. 9 3(B)(f)(2) ("The owner
andlor property manager shall require as a prerequisite to entering into any lease or rental
arrangement . . . the submission of evidence of citizenship or eligible immigration status for each
tenant family consistent with subsection (3)."). In addition, a landlord is "prohibited from allowing the occupancyof anyunit by any familywhich has not submittedthe required evidence of citizenship
or eligible immigration status." Id. at 5 3(B)(f)(4)(ii).
The Ordinance itself does not define the term "prerequisite," but the term as commonly defined means "something that is necessaryto an end or to the carryingout of a function." Merriam-
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Webster's Collegiate Dictionary 981 (I lth ed. 2004). In other words, before a landlord can even enter into a lease or rental agreement, the landlord must take the necessary first step of requiring the submission of documentation related to citizenship or immigration status. Ord. $ 3(B)(f)(2). Although it is not spelled out in black and white, the dominant, and perhaps sole, purpose of this provision of the Ordinance is to prevent illegal immigrants from renting apartments in Farmers Branch; otherwise, there would be no need to verifl immigration status as a prerequisite for entering into a lease. Of course the city, through legal legerdemain and sophistication, has avoided including in the Ordinance any specific reference to denying rental apartment units to illegal immigrants, but considering the Ordinance as a whole, its purpose is unmistakably clear.
The city's argument that it is acting to support the federal government's immigration enforcement is specious. Local enforcement of federal immigration law is sanctioned by section 287(g) of the Immigration and Naturalization Act which provides:
[Tlhe Attorney General may enter into a written agreement with a State, or any political subdivision of a State, pursuant to which an officer or employee of the State or subdivision, who is determined by the Attorney General to be qualified to perform a function of an immigration officer in relation to the investigation, apprehension, or
detention of aliens in the United States . . . , may carry out such
function at the expense of the State or political subdivision and to the extent consistent with State and local law. 8 USC $ 1357(g)(1); however, there is no evidence that the city of Farmers Branch has entered into any agreement with the Attorney General regarding the enforcement of immigration law. Moreover, nowhere in the Ordinance does Farmers Branch express its intent to assist the federal government in this manner. The Ordinance here requires more than the collection of immigration documents. The Ordinance puts the burden of verifling immigration status upon landlords. In LULAC, the district Memorandum Opinion and Order Granting Preliminary Injunction - Page 21

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court held that a California proposition was a regulation of immigration, in part, because the law required that state agents determine immigration status. 908 F. Supp. at 770. That court noted that:
state agents are unqualified - and also unauthorized - to make
independent determinations of immigration status. . . . Indeed,
determinations of immigration status by state agents amounts to immigration regulation whether made for the purposes of notifying aliens of their unlawful status and reporting their presence to the INS or for the limited purpose of denying benefits. Id. The court determines that the Ordinance burdens private citizens and city officials with making immigration statusdecisionsbased upon a schemethat does not adopt federal immigrationstandards. Accordingly, the Ordinance is a "regulation of immigration" inconsistent with the federal government's rights and in violation of the first De Canas test.
b. Savings Clause Defendant argues in the alternative that if the court concludes that the Ordinance as drafted is preempted that the court should sever provisions pursuant to the savings clause of the Ordinance. Section 4 provides:
If any section, paragraph, subdivision, clause or phrase of this Ordinance shall be adjudged invalid or held unconstitutional, the same shall not affect the validity of this Ordinance as a whole or any part of any provision thereof other than the part so decided to be invalid or unconstitutional.
Ord. 5 4. At the preliminary injunction hearing, the city provided the court with three exhibits
demonstrating various ways it believes the court could sever certain portions of the Ordinance in order to craft an Ordinance that is not preempted by the Supremacy Clause. Specifically, Version One omits all references to the HUD regulations and requires noncitizens to provide only a "signed declaration of eligible immigration status." Version Two omits all references to the HUD regulations and requires noncitizens to present only a "form designated by ICE as acceptable Memorandum Opinion and Order Granting Preliminary Injunction - Page 22

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evidence of immigration status." Version Three omits all references to any federal regulations and leaves the rest of the Ordinance, for the most part, intact. In its supplemental brief, Defendant effectively offers a fourth version by arguing that if the term "eligible immigration status" is problematic, the court could simply omit the word "eligible" from the phrase throughout the text of the Ordinance.
Plaintiffs argue that the court should not engage in rewriting the Ordinance, that the portions the city arguesshould be severedare not independentand cannot be severed,that severingreferences to the HUD regulations would violate the city's legislative intent, that severing any portion of the Ordinance at this stage of the proceedings is improper, and that the three proposals submitted by the city are still preempted by federal law and are unconstitutional in other ways.
At the preliminary injunction hearing, one of the city's attorneys acknowledged that "there are drafting issues to be addressed." Trans. 40:12-13. The court agrees that the Ordinance has "drafting issues." That the city has acknowledged problems with the Ordinance and has provided the court with four alternatives demonstrates the inherent weakness of the Ordinance. The court recognizes that the Fifth Circuit has considered and applied a savings analysis in the context of a preliminary injunction. Planned Parenthood of Houston and Southeast Texas v. Sanchez, 403 F.3d 324, 341-342 (5th Cir. 2005). Accordingly, the court considers whether the savings clause in the Ordinance allows the court to fashion any changes to the Ordinance to overcome the problems the Ordinance, as enacted, faces with regard to the Supremacy Clause.
"Generally speaking,when confronting a constitutional flaw in a statute,we try to limit the solution to the problem. We prefer, for example to enjoin only the unconstitutional applications of a statute while leaving other applications in force, or to sever its problematic portions while leaving
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the remainder intact." Ayotte v. Planned Parenthood ofNorthern New England, 546 U.S. 320, 126 S.Ct. 961,967 (2006) (internal citations omitted). In that case, the Court noted three principlesthat a court must follow when trying to save an otherwise unconstitutional statute:
First, we try not to nullify more of a legislature's work than is necessary, for we know that a ruling of unconstitutionality frustrates
the intent of the elected representatives of the people. . . . Second,
mindful that our constitutionalmandateand institutionalcompetence are limited, we restrain ourselves from rewriting state law to conform
it to constitutional requirements even as we strive to salvage it. . . .
Third, the touchstone for any decision about remedy is legislative intent, for a court cannot use its remedial powers to circumvent the intent of the legislature. Id. at 968-969 (internal citations, quotations, and brackets omitted). In Reno v. ACLU, a case relied
upon by the city, the Court also noted that it has long held: It would certainly be dangerous if the legislature could set a net large enough to catch all possible offenders, and leave it to the courts to step inside and say who could be rightfully detained, and who should be set at large. This would, to some extent, substitute the judicial for the legislative department of the government.
521 U.S. 844, 884 11.49 (quoting Unitedstates v. Reese, 92 U.S. 214,221 (1875)). In Reno, the Court also noted that a severability clause is "an aid merely; not an inexorable command." Id. (quoting Dorchy v. Kansas, 264 U.S. 286,290 (1924)).
The city's proposed revisions to the Ordinance would require the court to excise various "whereas" clauses, references to federal regulations, and certain words and phrases of subsections of the Ordinance. No section of the Ordinance could be omitted entirely to prevent the preemption of the Ordinance; the city proposes instead a line-by-line revision of the Ordinance to try to solve the preemption problems.
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The court determines that the application of the savings clause and case law interpreting the application of such clauses does not require what the city asks of the court. The federal regulations relied upon by the Ordinance, the references to the HUD regulations, and the term "eligible immigration status" are woven throughout the Ordinance. The legislative history that is available makes clear that the Farmers Branch City Council intended to adopt the HUD regulations. The minutes of the January 22, 2007 City Council meeting state: "City Attorney Matthew Boyle
summarized the changes in the proposed ordinance: . . . 3) adopts revised apartment licensing
standards based on HUD lease agreements . . . ." Vasquez Pls.' Reply App. 10. The city asks the
court to essentially rewrite the Ordinance by stripping phrases that are inextricably intertwined to create anew Ordinancethat clearlyfrustratesthe city's original legislative intent. The court declines to enforce the savings clause, concluding that the reliance on the HUD regulations was intentional and that any attempt to rewrite the Ordinance would require the court to legislate by creating an entirely new ordinance. Moreover, even if the court did sever parts of the existing Ordinance, the court determines that the resulting ordinance would likely be void for vagueness as described in the following section.
Accordingly,the court determinesthat the Ordinanceis preemptedbecause it is a "regulation of immigration" under the first De Canas test. The city's efforts to "save" the Ordinance and to rectify the acknowledged "drafting issues" cannot succeed because the court cannot and will not engage in the legislative exercise of redrafting the Ordinance. The court finds that Plaintiffs have established a substantial likelihood of success on the merits of their claims that the Ordinance is preempted, satisfying the first element required for a preliminary injunction.
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The parties also raised issues as to the second and third De Canas tests. In light of the court's ruling with respect to the first De Canas test, it does not consider the parties' arguments regarding the second and third De Canas tests.
2. Due Process Even if the Ordinance is not preempted by the Supremacy Clause, Plaintiffs argue the Ordinance is void for vagueness in violation of the Due Process clause of the Fourteenth Amendment. The Fourteenth Amendment provides: no state shall "deprive any person of life,
liberty, or property, without due process of law. . . ." U.S. Const. amend XIV § 1. "[Tlhe void-for-
vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement." Kolendar v. Lawson, 461 U.S. 352, 357 (1983); see also City of Chicago v. Morales, 527 U.S. 41,56 (1999) ("It is establishedthat a law fails to meet the requirements of the Due Process Clause if it is so vague and standardless that it
leaves the public uncertain as to the conduct it prohibits . . . .") (quoting Giaccio v. Pennsylvania,
382 U.S. 399,402-403 (1966)). Plaintiffs argue that the Ordinance fails to provide sufficient guidance to landlords who are
responsible for enforcing the Ordinance and who are subject to criminal penalties for failure to comply with the Ordinance. Specifically, Plaintiffs argue that the Ordinance fails to identify who must perform the obligations and who is liable for violations of the Ordinance (because the Ordinance places the burden upon the "owner andlor property manager," that the term "eligible immigrationstatus" is unconstitutionallyvague, that the use of the term "family" createsuncertainty to landlords who rent to corporate tenants, that the documentation requirements are
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incomprehensible, and that the Ordinance is unclear as to whether property owners and managers have an ongoing responsibility to monitor their tenants' immigration status. Plaintiffs argue that in light of the strict criminal liability for violation of the Ordinance, the court must find that the Ordinance is void for vagueness.
The city argues that the Ordinance contains clear standards, pointing to section 3(B)(f)(3)(i), which states the evidence requirements for U.S. citizens or nationals. The city also argues that the Ordinance expressly includes anti-discrimination provisions and that the city will provide training to landlords. The city also contends that because the Ordinance adopts the standards of ICE, landlords need not guess at what documents a potential tenant must provide.
The court determinesthat the Plaintiffs' argumentsregardingthe Ordinance's vaguenesswith regard to the meaning of "eligible immigration status" and the documentation requirements require the conclusion that the Ordinance is void for vagueness. The city's responses to the preemption and due process arguments demonstrate some tension: while the city has argued strenuously in response to the preemption arguments that the Ordinance does not adopt the KTD regulations, in response to the due process challenge,the city has arguedthat the regulationsprovide clear guidance as to whom is eligible to rent in Farmers Branch. The city also presents inconsistencyin a comparison of the text of the Ordinance and its own exhibits which include the documents provided as training materials to landlords. Def. App. 61-88. While the Ordinance refers to "form[s] designated by ICE as acceptable evidence of immigration status," Ord. § 3(B)(f)(3)(ii)(b), the sample documents are HUD documents that limit the acceptable documentation to those documents that establish eligibility for federal housing assistance.
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A landlord, subject to criminal liability for violation of the Ordinance, relying on the city's documents would not know whether he was criminally liable for renting to a noncitizen legally residing in the country who lacked the documents listed on the HUD declaration. Def. App. at 65. A landlord must also, as a prerequisite to entering a lease with a noncitizen, determine whether that potential tenant has a "form designated by ICE as acceptable evidence of immigration status." Ord.
5 3(B)(f)(3)(ii)(b). The city maintains that it will provide training to landlords, but the evidence
provided by the city itself demonstrates that the city will use the HUD documents as its examples, creating confusion and uncertainty for landlords who desire to rent to individuals legally in the country but ineligible for federal housing assistance. The Ordinance, applied in a criminal context to landlords with no training or expertise in federal immigration law, fails to put these landlords on sufficient notice of what acts may be punished by the city.
The alternative versions of the Ordinance proposed by the city to solve the preemption problems also would be void for vagueness. The same problems apply to all three versions, which omit all references to the HUD regulations. The omission strips the Ordinance of the definitions of key terms creating even more uncertainty and confusion as to the meaning of the Ordinance.
Accordingly, the court concludes that the Ordinance fails to sufficiently define the offense that would subject a landlord in Farmers Branch to criminal penalties. Thus, the court determines that Plaintiffs have also established a likelihood of success on the merits of their vagueness challenge. Because the court has concluded that Plaintiffs have met the first requirement for a preliminary injunction on their Supremacy Clause and vagueness claims, the court does not reach Plaintiffs' additional claims.
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C. Threat of Immediate and Irreparable Harm Plaintiffs must establish a substantial likelihood that they will suffer irreparable injury if a preliminary injunction is not granted. Clark, 812 F.2d at 993. A party may be irreparably injured in the face of the threatened enforcement of a preempted law. Morales v. Trans WorldAirlines, Inc., 504 U.S. 374, 381 (1992). The court may enjoin state officers "who threaten and are about to commence proceedings, either of a civil or criminal nature, to enforce against parties affected an unconstitutional act, violating the Federal Constitution." Id. (quotingExparte Young, 209 U.S. 123, 145-147 (1908)). Moreover, "[wlhen an alleged deprivation of a constitutional right is involved, most courts hold that no further showing of irreparable injury is necessary." Louisiana Seafood Mgm 't Council, Inc. v. Foster, 917 F. Supp. 439,442 n. 1 (E.D. La. 1996) (quoting 11A Charles A.
Wright, Arthur R. Miller & Mary Kay Kane, Fed. Prac. & Proc. 5 2948.1, p. 160-161 (1995)).
The landlord plaintiffs have established that they will be subject to fines and criminal
penalties if they violate the Ordinance once it is in effect. See Ord. 5 6 ("any person violating any
of the provisions of this ordinance shall be deemed guilty of a misdemeanor and upon conviction thereof shall be fined in a sum not to exceed $500"). The declarations submitted by Plaintiffs also establish that the Ordinance is likely to cause irreparable harm to the landlord plaintiffs' business because the landlords will lose business to neighboring cities and because the Ordinance casts doubt on Farmers Branch landlords' ability to lease to corporate tenants or through the internet.
The tenant plaintiffs have also established irreparable harm because the Ordinance creates uncertainty with regard to legal aliens without documentation sufficient under the Ordinance. One result of this uncertainty is likely to require the tenant plaintiffs to relocate, changejobs and schools, or remain in Farmers Branch and face eviction, all harms that may not be remedied by monetary
Memorandum Opinion and Order Granting Preliminary Injunction - Page 29

Case 3:06-cv-02371 Document 109 Filed 06/19/2007 Page 30 of 33
damages. E.g., Enterprise Int 'I, Inc. v. Corporacion Estatal Petrolera Ecuatoriana, 762 F.2d 464, 472-473 (5th Cir. 1985) ("[Aln injury is irreparable only if it cannot be undone through monetary remedies.") (internal citations and quotations omitted). Accordingly, the court determines that the second requirement has been met by Plaintiffs.
D. Harm to the Plaintiffs versus Harm to Farmers Branch The court also determines that greater injury will result from denying the preliminary injunction than from granting it. Clark, 812 F.2d at 993. The city argues that the voters of Farmers Branch have expressed their approval of the Ordinance. The court recognizes the election results, but does not find that the voters' approval shows any harm to Farmers Branch by granting a preliminary injunction. In fact, in the context of asking the court for a bond, the city has now had two opportunities to explain to the court what injury the city would face if the Ordinance was enjoined. The city could not demonstrate any specific, quantifiable harm to the city, but instead
pointed to the city's "inability . . . to protect the health, safety, and welfare of the public." Trans.
98:16-18. Giventhat Plaintiffshave establishedthe likelihoodof irreparableinjury,weighed against an abstract and hypothetical injury to the city, the court determines that denying a preliminary injunction would be more harmful than any injury to Farmers Branch by granting the applications.
E. The Public Interest Finally, the court determines that apreliminary injunction in this case is in the public interest.
As the Fifth Circuit Court of Appeals has noted, the "public interest . . . does not extend so far as to allow . . . actions that interfere with the exercise of fundamental rights." Deerfield Med. Center v.
City ofDeerfieldBeach, 661 F.2d 328,338-339 (5th Cir. 1981). Given that the court has determined at this juncture that the Ordinance is preempted by the Constitution and is void for vagueness, the
Memorandum Opinion and Order Granting Preliminary Injunction- Page 30

Case 3:06-cv-02371 Document 109 Filed 06/19/2007 Page 31 of 33
public interest is served by enjoining the effective date and enforcement of a local law that the court has initially determined to be at odds with the Constitution. IV. Conclusion and Preliminary Injunction
All in all, the court concludes that only the federal government may determine whether an individual is legally in the United States. Farmers Branch, rather than deferring to the federal government's determination of immigration status, has created its own classification scheme for determining which noncitizens may rent an apartment in that city. Farmers Branch has failed to adopt federal immigration standards. The Ordinance adopts federal housing regulations that govern which noncitizens may receive housing subsidies from the federal govemment, not federal immigration standardsthat determine which noncitizens are legallyin this country. BecauseFarmers Branch has attempted to regulate immigration differently from the federal govemment, the Ordinance is preempted by the Supremacy Clause. The city's attempts to save the Ordinance fail because the proposed revisions would require the court to engage in the legislative function of redrafting the Ordinance. Even if sections or phrases of the Ordinance could be severed, the Ordinance would suffer from the same- if not worse- vagueness problems.
The court, for the reasons herein stated, determines that the Villas and Vasquez Plaintiffs have satisfied each of the elements necessary to obtain a preliminary injunction. Accordingly, the court grants the Villas Plaintiffs' Application for Preliminary Injunction and grants the Vasquez Plaintiffs' Motion for Preliminary Injunction.
The court therefore orders that the City of Farmers Branch, Texas, and its officers, agents, servants, employees, representatives, and attorneys, are hereby enjoined from effectuating or enforcing Ordinance 2903, pending a trial on the merits or other disposition of this case.
Memorandum Opinion and Order Granting Preliminary Injunction - Page 31

Case 3:06-cv-02371 Document 109 Filed 06/19/2007 Page 32 of 33
At the hearing on the preliminary injunction, Farmers Branch urged the court to increase the bond of $1,500 per group of Plaintiffs that it ordered. As the court stated in its Memorandum Opinion and Order Granting Temporary Restraining Order, "[tlhe court determines that at most the harm or damage to Farmers Branch would be minimal, and that a bond of $1,500 per group of Plaintiffs is sufficient." Mem. Op. and Order (May 21,2007), 20. The court still believes this to be the case, as Defendant has presented no evidence to change the court's mind. The city did argue attorney's fees as damages if it prevailed on appeal.
For a prevailing defendant to receive attorney's fees in a civil rights case, such defendant must establish that the lawsuit was "frivolous, unreasonable, or groundless, or that the plaintiff continued to litigate after it clearly became so." Christiansburg Garment Co. v. EEOC, 434 U.S. 4 12,422 (1978). Frivolity is determined by deciding "whether the case was so lacking merit that it was groundless, rather than whether the claim was ultimately successful." United States v. Mississippi, 921 F.2d 604,609 (5th Cir. 1991). The Supreme Court cautions that "[elven when the law or facts appear questionableor unfavorableat the outset, a party may have an entirelyreasonable ground for bringing suit." Christiansburg, 434 U.S. at 422. Regardless of what happens to this case on appeal, it is not "frivolous, unreasonable,or groundless." Accordingly,Defendant would not be entitled to receive attorney's fees and thereby would suffer no damages. The court determines that the bond originally posted by Plaintiffs is sufficient, and declines to increase the bond amount. Accordingly, the bond posted by each group of Plaintiffs for the temporary restraining order serves as the bond for this preliminary injunction.
Memorandum Opinion and Order Granting Preliminary Injunction - Page 32

Case 3:06-cv-02371 Document 109 Filed 06/19/2007 Page 33 of 33 It is so ordered this 19th day of June, 2007.
Memorandum Opinion and Order Granting Preliminary Injunction -Page 33

 
 Case 3:06-cv-02371 Document 110 Filed 06/26/2007 Page 1 of 9

IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS DALLAS DIVISION

VILLAS AT PARKSIDE PARTNERS d/b/a VILLAS AT PARKSIDE, et al.,
Plaintiffs, v. THE CITY OF FARMERS BRANCH,
Defendant.

§ § § § § § Civil Action No. 3:06-CV-2371-L § (consolidated with CA No. 3:06-CV-2376-L § and CA No. 3:07-CV-0061-L) § §

MEMORANDUM OPINION AND ORDER

Before the court are: (1) Defendant City of Farmers Branch’s Rule 12(b)(1) and 12(b)(6)

Motion to Dismiss [Villas Plaintiffs’ Second Amended Complaint], filed March 28, 2007; and (2)

Defendant City of Farmers Branch, Texas’ Motion to Dismiss [Vasquez Plaintiffs’ First Amended

Complaint] for Plaintiffs’ Failure to State a Claim and Lack of Subject Matter Jurisdiction, filed

April 13, 2007. After careful consideration of the motions, responses, replies, record, and applicable

law, the court denies without prejudice Defendant City of Farmers Branch’s Rule 12(b)(1) and

12(b)(6) Motion to Dismiss [Villas Plaintiffs’ Second Amended Complaint], and denies without

prejudice Defendant City of Farmers Branch, Texas’ Motion to Dismiss [Vasquez Plaintiffs’ First

Amended Complaint] for Plaintiffs’ Failure to State a Claim and Lack of Subject Matter Jurisdiction.

I. Procedural and Factual Background

This case concerns Farmers Branch Ordinance 2903 (the “Ordinance”), and a detailed

factual history may be found in the court’s memorandum opinion and order granting temporary

restraining order, entered May 21, 2007, and memorandum opinion and order granting preliminary

Memorandum Opinion and Order – Page 1

Case 3:06-cv-02371 Document 110 Filed 06/26/2007 Page 2 of 9
injunction, entered June 19, 2007. The court incorporates its earlier orders insofar as the factual background of the Ordinance and procedural history of this case are described.
Before the court are the city of Farmers Branch’s motions to dismiss the complaints of the Villas Plaintiffs and the Vasquez Plaintiffs. A third group of plaintiffs, the Barrientos Plaintiffs, was dismissed for lack of standing on June 1, 2007. The city argues that the remaining Plaintiffs lack standing, that their claims are moot, and that Plaintiffs have failed to state claims upon which relief can be granted. II. Legal Standards
A. Rule 12(b)(1) – Dismissal for Lack of Standing “Article III of the Constitution confines the federal courts to adjudicating actual ‘cases’ and ‘controversies’.” Allen v. Wright, 468 U.S. 737, 750 (1984). Because the question of standing implicates the court's subject matter jurisdiction, that is, the court’s statutory or constitutional power to adjudicate a claim or dispute, see Steel Co. v. Citizens for a Better Env’t., 523 U.S. 83, 89 (1998); Allen, 468 U.S. at 751, the court applies the standards for a motion to dismiss pursuant to Rule 12(b)(1). A federal court has subject matter jurisdiction over cases “arising under” the Constitution, laws, or treaties of the United States, or in cases where the matter in controversy exceeds $75,000, exclusive of interest and costs, and diversity of citizenship exists between the parties. 28 U.S.C. §§ 1331, 1332. Federal courts are courts of limited jurisdiction and must have statutory or constitutional power to adjudicate a claim. See Home Builders Ass’n, Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998). Absent jurisdiction conferred by statute or the Constitution, they lack the power to adjudicate claims and must dismiss an action if subject matter jurisdiction is
Memorandum Opinion and Order – Page 2

Case 3:06-cv-02371 Document 110 Filed 06/26/2007 Page 3 of 9
lacking. Id.; Stockman v. Federal Election Comm’n, 138 F.3d 144, 151 (5th Cir. 1998) (citing Veldhoen v. United States Coast Guard, 35 F.3d 222, 225 (5th Cir. 1994)). A federal court has an independent duty, at any level of the proceedings, to determine whether it properly has subject matter jurisdiction over a case. See Ruhgras AG v. Marathon Oil Co., 526 U.S. 574, 583 (1999) (“[S]ubject-matter delineations must be policed by the courts on their own initiative even at the highest level.”); McDonal v. Abbott Labs., 408 F.3d 177, 182 n.5 (5th Cir. 2005) (“federal court may raise subject matter jurisdiction sua sponte”).
In considering a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction, “a court may evaluate (1) the complaint alone, (2) the complaint supplemented by undisputed facts evidenced in the record, or (3) the complaint supplemented by undisputed facts plus the court’s resolution of disputed facts.” Den Norske Stats Oljeselskap As v. HeereMac Vof, 241 F.3d 420, 424 (5th Cir.), cert. denied, 534 U.S. 1127 (2002); see also Ynclan v. Dep’t of Air Force, 943 F.2d 1388, 1390 (5th Cir. 1991). Thus, unlike a Rule 12(b)(6) motion to dismiss for failure to state a claim, the district court is entitled to consider disputed facts as well as undisputed facts in the record. See Clark v. Tarrant County, 798 F.2d 736, 741 (5th Cir. 1986). All factual allegations of the complaint, however, must be accepted as true. Den Norske Stats Oljeselskap As, 241 F.3d at 424.
B. Rule 12(b)(6) - Dismissal for Failure to State a Claim A motion to dismiss for failure to state a claim under Fed. R. Civ. P. 12(b)(6) “is viewed with disfavor and is rarely granted.” Lowrey v. Texas A&M Univ. Sys., 117 F.3d 242, 247 (5th Cir. 1997). A district court cannot dismiss a complaint, or any part of it, for failure to state a claim upon which relief can be granted “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46
Memorandum Opinion and Order – Page 3

Case 3:06-cv-02371 Document 110 Filed 06/26/2007 Page 4 of 9
(1957); Blackburn v. City of Marshall, 42 F.3d 925, 931 (5th Cir. 1995). Stated another way, “[a] court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.” Swierkiewicz v. Sorema, 534 U.S. 506, 514 (2002) (quoting Hishon v. King & Spalding, 467 U.S. 69, 73 (1984)). In reviewing a Rule 12(b)(6) motion, the court must accept all well-pleaded facts in the complaint as true and view them in the light most favorable to the plaintiff. Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996). In ruling on such a motion, the court cannot look beyond the pleadings. Id.; Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir. 1999), cert. denied, 530 U.S. 1229 (2000). The pleadings include the complaint and any documents attached to it. Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498-99 (5th Cir. 2000). Likewise, “‘[d]ocuments that a defendant attaches to a motion to dismiss are considered part of the pleadings if they are referred to in the plaintiff's complaint and are central to [the plaintiff’s] claims.’” Id. (quoting Venture Assocs. Corp. v. Zenith Data Sys. Corp., 987 F.2d 429, 431 (7th Cir. 1993)).
The ultimate question in a Rule 12(b)(6) motion is whether the complaint states a valid cause of action when it is viewed in the light most favorable to the plaintiff and with every doubt resolved in favor of the plaintiff. Lowrey, 117 F.3d at 247. A court, however, is not to strain to find inferences favorable to the plaintiff and is not to accept conclusory allegations, unwarranted deductions or legal conclusions. R2 Invs. LDC v. Phillips, 401 F.3d 638, 642 (5th Cir. 2005) (citations omitted). The court does not evaluate the plaintiff’s likelihood of success; instead, it only determines whether the plaintiff has a legally cognizable claim. United States ex rel. Riley v. St. Luke’s Episcopal Hosp., 355 F.3d 370, 376 (5th Cir. 2004).
Memorandum Opinion and Order – Page 4

Case 3:06-cv-02371 Document 110 Filed 06/26/2007 Page 5 of 9
III. Defendant’s Motions to Dismiss A. Villas Plaintiffs The city has moved to dismiss the Villas Plaintiffs’ Second Amended Complaint, arguing
that the Villas Plaintiffs’ claims are moot, that they lack standing, that their complaint fails to state a claim upon which relief can be granted, and that the city is immune from Plaintiffs’ claims under the Texas Local Government Code. The Villas Plaintiffs filed their Second Amended Complaint on March 9, 2007, after the adoption of the Ordinance by the Farmers Branch City Council but before the May 12, 2007 referendum election.
1. Mootness The city’s argument that the Villas Plaintiffs’ claims are moot is based upon Plaintiffs’ complaint being filed prior to the May 12, 2007 election. The voters’ approval of the Ordinance has removed any argument that Plaintiffs’ claims are hypothetical. The city would have begun enforcing the Ordinance on May 22, 2007 had the court denied the applications for temporary restraining order on May 21, 2007. Accordingly, the court determines that Plaintiffs’ claims are not moot.
2. Standing To have standing, Plaintiffs must show that they “have suffered an injury in fact– an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical.” Cole v. General Motors Corp., 484 F.3d 717, 722 (5th Cir. 2007) (internal quotations omitted) (quoting Lujan, 504 U.S. at 560). Defendant argues that the Villas Plaintiffs cannot establish an injury or causation. The Villas Plaintiffs are three Texas partnerships that own and operate apartment complexes in Farmers Branch. Villas Sec. Am. Compl. ¶¶ 1-3. As property owners and managers, Plaintiffs
Memorandum Opinion and Order – Page 5

Case 3:06-cv-02371 Document 110 Filed 06/26/2007 Page 6 of 9
are subject to the criminal sanctions of the Ordinance. Id. ¶ 42. The court has already determined that the Villas Plaintiffs faced irreparable injury from the enforcement and effective date of the Ordinance. Thus, the Villas Plaintiffs satisfy the “injury” requirement.
Plaintiffs must draw “the line of causation between [defendant’s] actions and [plaintiffs’] injury.” Warth v. Seldin, 422 U.S. 490, 509 (1975). The Villas Plaintiffs have alleged that the Ordinance will impede their ability to lease their apartments and will subject them to fines and criminal penalties for their failure to comply. Villas Sec. Am. Compl. ¶ 42. Because their threatened injury is a direct consequence of the Ordinance, they have drawn a line between Defendant’s actions and their threatened injury sufficient to confer standing. Accordingly, the Villas Plaintiffs’ rights are directly affected by the Ordinance, and they have standing to bring claims based upon the threatened enforcement of the Ordinance. County Court of Ulster County, New York v. Allen, 442 U.S. 140, 154-155 (1979).
3. Failure to State a Claim Defendant argues that the Villas Plaintiffs’ Second Amended Complaint should be dismissed for failure to state a claim because the Ordinance was not in effect when Plaintiffs filed their complaint and Plaintiffs therefore could not sustain any damages. Because the referendum election has occurred and the Ordinance has been approved by the voters of Farmers Branch, the court finds that this argument is moot. Any argument that Plaintiffs have failed to allege damages has also been addressed by the court in its orders granting the applications for temporary restraining order and preliminary injunction finding that the Villas Plaintiffs have established the threat of irreparable harm.
Memorandum Opinion and Order – Page 6

Case 3:06-cv-02371 Document 110 Filed 06/26/2007 Page 7 of 9
4. Immunity for Texas Local Government Code Claim Finally, Defendant argues that the Villas Plaintiffs’ claim under section 214.903 of the Texas Local Government Code should be dismissed. Plaintiffs allege that the Ordinance violates section 214.903, which provides: “The governing body of a municipality may adopt fair housing ordinances that provide fair housing rights, compliance duties, and remedies that are substantially equivalent to those granted under federal law.” Tex. Loc. Govt. Code § 214.903. Plaintiffs contend that the Ordinance goes beyond federal fair housing law by requiring proof of citizenship or immigration status, and seek a declaration that the Ordinance is invalid and preliminary and permanent injunction of its enforcement. Villas Sec. Am. Compl. ¶ 75. Defendant argues that it has sovereign immunity as to this claim. Because Plaintiffs seek declaratory and injunctive relief on this count, the doctrine of governmental immunity is not implicated, as held by an appellate court in one of the cases cited by the city. Fort Bend County v. Martin-Simon, 177 S.W.3d 479, 484 (Tex. App. – Houston [1st Dist.] 2005, no pet.) (“[T]he Texas Supreme Court has noted that certain declaratory judgment actions do not implicate the doctrine of governmental immunity. . . . The governmental immunity doctrine is not implicated in such actions because they do not attempt to subject the State to liability.”). Because the Villas Plaintiffs only seek declaratory and injunctive relief, this claim is not barred by sovereign immunity. Accordingly, the court denies without prejudice Defendant’s motion to dismiss the Villas Plaintiffs’ Second Amended Complaint.
Memorandum Opinion and Order – Page 7

Case 3:06-cv-02371 Document 110 Filed 06/26/2007 Page 8 of 9
B. Vasquez Plaintiffs The city also has moved to dismiss the Vasquez Plaintiffs’ First Amended Complaint, arguing that Plaintiffs lack standing and that they have failed to state a claim upon which relief can be granted. This motion to dismiss was filed before the May 12, 2007 referendum election.
1. Standing The Vasquez Plaintiffs include both apartment tenants in Farmers Branch and the owners and property managers of apartment complexes in Farmers Branch. Vasquez First Am. Compl. ¶¶ 7-21. The landlord plaintiffs allege that they are subject to criminal conviction and civil sanctions for their failure to comply with the Ordinance, and that the Ordinance will cause them to lose substantial business. Id. ¶¶ 19- 21. The tenant Plaintiffs are U.S. citizens or legal permanent residents who live with family members who are neither U.S. citizens nor resident aliens. Id. ¶¶ 7-15. They allege that the Ordinance will cause them irreparable harm by causing them to lose their homes and to separate from family members. Id. ¶ 15. The court has already determined that the Vasquez Plaintiffs faced irreparable injury from the enforcement and effective date of the Ordinance. Thus, the Villas Plaintiffs have satisfactorily pleaded an “injury.” The causation requirement is also satisfied because the pleaded injuries would be caused directly by the enforcement of the Ordinance. Accordingly, the court determines that the Vasquez Plaintiffs have standing.
2. Failure to State a Claim The city also moves to dismiss each of the Vasquez Plaintiffs’ claims for failure to state a claim upon which relief can be granted. The court, based upon the rulings already made in this case, denies the motion as to Plaintiffs’ claims under the Supremacy Clause and the Due Process Clause.
Memorandum Opinion and Order – Page 8

Case 3:06-cv-02371 Document 110 Filed 06/26/2007 Page 9 of 9 Because the Ordinance has been preliminarily enjoined, the court denies without prejudice the remainder of the city’s motion. IV. Conclusion
For the reasons stated herein, the court denies without prejudice Defendant City of Farmers Branch’s Rule 12(b)(1) and 12(b)(6) Motion to Dismiss [Villas Plaintiffs’ Second Amended Complaint], and denies without prejudice Defendant City of Farmers Branch, Texas’ Motion to Dismiss [Vasquez Plaintiffs’ First Amended Complaint] for Plaintiffs’ Failure to State a Claim and Lack of Subject Matter Jurisdiction.
It is so ordered this 26th day of June, 2007. _________________________________ Sam A. Lindsay United States District Judge
Memorandum Opinion and Order – Page 9

 
 Case 3:06-cv-02371-L Document 121 Filed 12/11/2007 Page 1 of 9

IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS DALLAS DIVISION

VILLAS AT PARKSIDE PARTNERS d/b/a VILLAS AT PARKSIDE, et al.,
Plaintiffs, v. THE CITY OF FARMERS BRANCH,
Defendant.

§ § § § § § Civil Action No. 3:06-CV-2371-L § (consolidated with CA No. 3:06-CV-2376-L § and CA No. 3:07-CV-0061-L) § §

MEMORANDUM OPINION AND ORDER

Before the court are: (1) Defendants’ Motion to Dismiss Villas Plaintiffs’ Claims for

Compensatory Damages, filed August 31, 2007; (2) Defendants’ Motion to Strike Plaintiffs’

Response in Opposition, filed October 9, 2007; and (3) Plaintiffs’ Motion for Enlargement of Time

to File Their Response to Defendant’s Motion to Dismiss Villas Plaintiffs’ Claims for Compensatory

Damages, filed October 19, 2007. After carefully considering the motions, briefing, record, and

applicable law, the court grants Defendants’ Motion to Dismiss Villas Plaintiffs’ Claims for

Compensatory Damages, denies Defendants’ Motion to Strike Plaintiffs’ Response in Opposition,

and grants Plaintiffs’ Motion for Enlargement of Time to File Their Response to Defendant’s

Motion to Dismiss Villas Plaintiffs’ Claims for Compensatory Damages.

I. Factual and Procedural Background

This case involves a challenge to Ordinance 2903, an ordinance enacted by the City of

Farmers Branch, Texas, approved by the voters of Farmers Branch, and preliminarily enjoined by

the court. The court has set out the factual and procedural background of the Ordinance and its

history in its May 21, 2007 Memorandum Opinion and Order Granting Temporary Restraining

Memorandum Opinion and Order – Page 1

Case 3:06-cv-02371-L Document 121 Filed 12/11/2007 Page 2 of 9
Order and its June 19, 2007 Memorandum Opinion and Order Granting Preliminary Injunction.
Rather than repeat that background, the court incorporates the factual and procedural background
in those orders and assumes familiarity with the history of this litigation. The court notes, however,
that Ordinance 2903 has never gone into effect or been enforced. The Ordinance was temporarily
restrained on May 21, 2007, one day before its effective date of May 22, 2007. The court thereafter
entered a preliminary injunction preventing the Ordinance from going into effect or being enforced.
The preliminary injunction remains in place. Defendant City of Farmers Branch1 now moves to dismiss certain claims for compensatory
damages brought by Plaintiffs Villas at Parkside Partners d/b/a Villas at Parkside, Lakeview at
Parkside Partners, Ltd. d/b/a Lakeview at Parkside, and Chateau Ritz Partners d/b/a Chateau de Ville (collectively, “Plaintiffs”).2 The Villas Plaintiffs have pleaded that they have been damaged “[s]ince
enactment of the Original Ordinance” by “loss of leases with new tenants and renewals of leases
with existing tenants.” 2d Am. Compl. ¶ 35 (hereinafter, “Complaint”). They allege that apartment
occupancy in Farmers Branch dropped by ten percent in the quarter following the Original
Ordinance. Id. ¶ 36. They contend that they are “entitled to recover damages to compensate them
for the injuries they have sustained as a result of the City’s enactments of the unlawful Original
1 The caption and title of the briefs submitted by the City of Farmers Branch also include Defendants Bob Phelps, Tim O’Hare, Bill Moses, Charlie Bird, James Smith, Ben Robinson, and Jim Olk in their official capacities. While these individuals were originally included as Defendants in the Villas Plaintiffs’ Original Complaint filed December 22, 2006, they subsequently were omitted as parties in the Villas Plaintiffs’ Second Amended Complaint, filed March 9, 2007. Accordingly, the court refers only to the single remaining Defendant, the City of Farmers Branch. Moreover, the suit against the individual Defendants in their official capacities is treated as a suit against the City of Farmers Branch, the governmental entity of which they are agents, employees, or officials. See Hafer v. Melo, 502 U.S. 21, 25 (1991); Brooks v. George County, 84 F.3d 157, 165 (5th Cir.), cert. denied, 519 U.S. 948 (1996). To the extent that the individual Defendants are sued in their official capacities, such “official capacity” claims are redundant and serve no purpose, as the City of Farmers Branch is a party to this action. Dismissal of the “official capacity” claims against the individual Defendants would be warranted. See Flores v. Cameron County, Texas, 92 F.3d 258, 261 (5th Cir. 1996). The clerk of the court is directed to amend the docket sheet to reflect that the City of Farmers Branch is the only Defendant. 2 The other group of Plaintiffs in this case, the Vasquez Plaintiffs, does not seek damages. Memorandum Opinion and Order – Page 2

Case 3:06-cv-02371-L Document 121 Filed 12/11/2007 Page 3 of 9
Ordinance and the . . . Ordinance.” Id. ¶ 43. Their damages claims are pleaded as part of count two, violation of 42 U.S.C. § 1981, and count six, violation of 42 U.S.C. § 1983. II. Procedural Motions
The Villas Plaintiffs filed their response to Defendant’s motion to dismiss on September 24, 2007. Pursuant to the local rules of the court, their response was due September 20, 2007. Defendant moves to strike the response as untimely, and Plaintiffs move for an extension of their deadline to file the brief.
While Defendant is correct that Plaintiffs’ response was filed after the deadline proscribed by Local Rule 7.1(e), Defendant has had an opportunity to reply to Plaintiffs’ response, and has not been legally prejudiced by the untimely filing. To grant Defendant’s motion to strike would exalt form over substance. The court cautions the Villas Plaintiffs to adhere to the local rules and fully expects them to do so. Because there is no prejudice to Defendant by considering the response, the court grants Plaintiffs’ Motion for Enlargement of Time to File Their Response to Defendant’s Motion to Dismiss Villas Plaintiffs’ Claims for Compensatory Damages, denies Defendants’ Motion to Strike Plaintiffs’ Response in Opposition, and deems Plaintiffs’ response timely filed. III. Motion to Dismiss
A. Legal Standard A motion to dismiss for failure to state a claim under Fed. R. Civ. P. 12(b)(6) “is viewed with disfavor and is rarely granted.” Lowrey v. Texas A&M Univ. Sys., 117 F.3d 242, 247 (5th Cir. 1997). A district court cannot dismiss a complaint, or any part of it, for failure to state a claim upon which relief can be granted “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Blackburn v. City of Marshall, 42 F.3d 925, 931 (5th Cir. 1995). Stated another way, “[a]
Memorandum Opinion and Order – Page 3

Case 3:06-cv-02371-L Document 121 Filed 12/11/2007 Page 4 of 9
court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.” Swierkiewicz v. Sorema, 534 U.S. 506, 514 (2002) (quoting Hishon v. King & Spalding, 467 U.S. 69, 73 (1984)). In reviewing a Rule 12(b)(6) motion, the court must accept all well-pleaded facts in the complaint as true and view them in the light most favorable to the plaintiff. Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996). In ruling on such a motion, the court cannot look beyond the pleadings. Id.; Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir. 1999), cert. denied, 530 U.S. 1229 (2000). The pleadings include the complaint and any documents attached to it. Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498-99 (5th Cir. 2000). Likewise, “‘[d]ocuments that a defendant attaches to a motion to dismiss are considered part of the pleadings if they are referred to in the plaintiff's complaint and are central to [the plaintiff’s] claims.’” Id. (quoting Venture Assocs. Corp. v. Zenith Data Sys. Corp., 987 F.2d 429, 431 (7th Cir. 1993)).
The ultimate question in a Rule 12(b)(6) motion is whether the complaint states a valid cause of action when it is viewed in the light most favorable to the plaintiff and with every doubt resolved in favor of the plaintiff. Lowrey, 117 F.3d at 247. A court, however, is not to strain to find inferences favorable to the plaintiff and is not to accept conclusory allegations, unwarranted deductions or legal conclusions. R2 Invs. LDC v. Phillips, 401 F.3d 638, 642 (5th Cir. 2005) (citations omitted). The court does not evaluate the plaintiff’s likelihood of success; instead, it only determines whether the plaintiff has a legally cognizable claim. United States ex rel. Riley v. St. Luke’s Episcopal Hosp., 355 F.3d 370, 376 (5th Cir. 2004).
Memorandum Opinion and Order – Page 4

Case 3:06-cv-02371-L Document 121 Filed 12/11/2007 Page 5 of 9
B. Analysis The parties dispute whether Plaintiffs are entitled to compensatory damages resulting from the passage of the Ordinance and its earlier iterations3 despite the fact that the Ordinance never went into effect and has never been enforced. Defendant argues that Plaintiffs have failed to state a claim for damages and that their damages claims must be dismissed because they are speculative and are premised upon the effectuation or enforcement of the Ordinance, neither of which has occurred. Plaintiffs argue that they have incurred injury from the passage of the Ordinance, that enforcement of the Ordinance is not required for their damages claims, and that their damages were foreseeable in light of the City’s enactment of the Ordinance. Regardless of the facts set forth by Plaintiffs, the court moves directly to the question of whether such a claim for compensatory damages can be sustained as a matter of law. While both sides cite a variety of cases, the court turns first to the recent holding from the Fifth Circuit Court of Appeals, which is mandatory authority on this court. That court recently affirmed a district court’s “implicit” finding that appellants’ damage claims were without merit where “the record contains no evidence that any of the appellants . . . were ever cited, arrested, or subject to actual or threatened physical force.” Brazos Valley Coalition for Life, Inc. v. City of Bryan, Texas, 421 F.3d 314, 320 (5th Cir. 2005). A district court in this circuit has also reached the same conclusion that an unenforced ordinance cannot give rise to compensatory damages: “Nor need the Parish worry about compensatory damages, since it never enforced the ordinance against the [Plaintiffs].” Vaughn v. St. Helena Parish Police Jury, 261 F. Supp. 2d 553, 558-59 (M.D. La. 2002), aff’d, 82 Fed. Appx. 105 (5th Cir. 2003).
3 For the sake of simplicity, the court refers to the “Ordinance” throughout this order. The court intends the word to encompass both Ordinance 2903 and its earlier versions, none of which ever became effective or has been enforced. Memorandum Opinion and Order – Page 5

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Defendant also cites two Eleventh Circuit cases supporting its position that a never-enforced ordinance cannot give rise to a claim for compensatory damages. In DA Mortgage, Inc. v. City of Miami Beach, the court held that a nightclub owner challenging the constitutionality of a county noise ordinance could not recover damages for “threatened” harm. 486 F.3d 1254, 1260 (11th Cir. 2007) (“[Plaintiff] appears to have based its claim for damages on the threat that the City might prosecute it for violations of the County noise ordinance. Plaintiffs cannot bring prospective damages under 42 U.S.C. § 1983, however.”) (emphasis added)); see also Tanner Advertising Group v. Fayette County, 451 F.3d 777, 786 (11th Cir. 2006) (“[Plaintiff] is not entitled to damages for the facial challenges of provisions of 1998 Sign Ordinance because those provisions have not yet harmed [plaintiff]. Whatever the constitutional basis for § 1983 liability, such damages must always be designed to compensate injuries caused by the constitutional deprivation.”) (internal citations and quotations omitted)).
The conclusion that a never-enforced ordinance does not give rise to damages is consistent with the Supreme Court’s decisions regarding damages in section 1983 cases. “[T]he basic purpose of a § 1983 damages award should be to compensate persons for injuries caused by the deprivation of constitutional rights. . . . Rights, constitutional and otherwise, do not exist in a vacuum.” Carey v. Piphus, 435 U.S. 254 (1978) (emphasis added). The injunction of the Ordinance prevented the deprivation of rights as alleged by Plaintiffs. That the Ordinance never went into effect or was enforced necessarily means that Plaintiffs were never harmed by it or actually suffered any constitutional deprivation; thus there can be no causal link between the deprivation of a constitutional right and any injury.
The City argues that “[n]o cases can be found to support Plaintiffs’ contention that compensatory damages should be awarded despite the preclusion of enforcement of the allegedly
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unconstitutional ordinance.” Def. Brief 10. The court, having also researched this issue, concludes that Defendant is largely correct. It appears that no court in this circuit has ever awarded compensatory damages to a plaintiff who has successfully enjoined the effectuation and enforcement of an ordinance. The City has never taken any action against a landlord or tenant to enforce the Ordinance, and therefore none has been affected by any action of the City with regard to the Ordinance.
Plaintiffs argue that the enactment of the Ordinance is sufficient to trigger their damages claims. The court disagrees. The only case cited by Plaintiffs that directly supports their position is a district court opinion from the Eastern District of Wisconsin. Clarkson v. Town of Florence, 198 F. Supp. 2d 997 (E.D. Wisc. 2002). This court determines that while the court in Clarkson did find that damages might be available to a plaintiff based upon the enactment alone of an unconstitutional ordinance, this decision conflicts with the Fifth and Eleventh Circuit opinions described above, and the court must follow the holdings of the Fifth Circuit. The court considers the result in Clarkson to be an aberration, as it has not been cited by any court for the purpose advanced by Plaintiffs, and thus has no utility to the present case.
The other cases cited by Plaintiffs are also distinguishable. As the City points out, two other Eleventh Circuit cases cited by Plaintiffs involve damages awarded for alleged injuries caused by ordinances that went into effect or were enforced. See Wheeler v. City of Pleasant Grove, 896 F.2d 1347, 1349-50 (11th Cir. 1990) (temporary taking of property); Watseka v. Illinois Public Action Council, 796 F.2d 1547, 1549 (11th Cir. 1986) (ordinance enforced against group seeking to conduct a political canvass). These cases actually support the City’s position that damages are only available for injuries that flow from a constitutional injury and the court’s position that damages are not available as the Ordinance never went into effect or was enforced. Plaintiffs also attempt to
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distinguish Brazos Valley and DA Mortgage, arguing that in those cases, the plaintiffs failed to allege injury caused by the enactment of the ordinance in question. The court, however, finds these two cases applicable to this case. In those cases, as here, the governmental entity never took any action to enforce the ordinance in question. The damages claims were based upon the threat of enforcement, and the Eleventh Circuit squarely rejected that position. While prospective tenants may have chosen to rent outside of Farmers Branch because the threat of the Ordinance loomed, Plaintiffs cannot argue that Farmers Branch ever enforced the Ordinance against them or any other landlord or prospective tenant. Finally, both parties cite certain Texas cases relating to a court’s ability to enjoin municipal annexation ordinances. The court determines that these cases are inapplicable, because they discuss the appropriateness of equitable or injunctive relief, not damages.
The City of Farmers Branch has not caused any damage to Plaintiffs because the Ordinance never went into effect and was never enforced. Plaintiffs successfully temporarily restrained and later preliminarily enjoined the effectuation and enforcement of the Ordinance. Their success precludes them from claiming compensatory damages, because they have enjoined the acts by the City that might have given rise to a damages claim. Accordingly, the court determines that the Villas Plaintiffs’ compensatory damages claims fail as a matter of law. Defendant is therefore entitled to dismissal of Plaintiffs’ compensatory damages claims. IV. Conclusion
For the foregoing reasons, the Villas Plaintiffs have failed to state a claim upon which relief can be granted regarding their claims for compensatory damages. Accordingly, the court grants Defendants’ Motion to Dismiss Villas Plaintiffs’ Claims for Compensatory Damages, denies Defendants’ Motion to Strike Plaintiffs’ Response in Opposition, and grants Plaintiffs’ Motion for Enlargement of Time to File Their Response to Defendant’s Motion to Dismiss Villas Plaintiffs’
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Case 3:06-cv-02371-L Document 121 Filed 12/11/2007 Page 9 of 9 Claims for Compensatory Damages. The Villas Plaintiffs’ claims for compensatory damages are dismissed with prejudice.
It is so ordered this 11th day of December, 2007. _________________________________ Sam A. Lindsay United States District Judge
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 Case 3:06-cv-02371-L Document 153 Filed 05/28/2008 Page 1 of 35

IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS DALLAS DIVISION

VILLAS AT PARKSIDE PARTNERS d/b/a VILLAS AT PARKSIDE, et al.,
Plaintiffs, v. THE CITY OF FARMERS BRANCH,
Defendant.

§ § § § § § Civil Action No. 3:06-CV-2371-L § (consolidated with CA No. 3:06-CV-2376-L § and CA No. 3:07-CV-0061-L) § §

MEMORANDUM OPINION AND ORDER GRANTING PERMANENT INJUNCTION

Before the court is Plaintiffs’1 Motion for Partial Summary Judgment,2 filed February 22,

2008.3 After carefully considering the motions, responses, replies, record, and applicable law, the

court grants Plaintiffs’ Motion for Partial Summary Judgment.

I. Procedural History

Plaintiffs seek summary judgment of two of their claims regarding the constitutionality of

Farmers Branch Ordinance 2903 (the “Ordinance”), an ordinance adopted by the Farmers Branch

1The Villas Plaintiffs are the owners and operators of apartment complexes in Farmers Branch. The Vasquez Plaintiffs include residents of apartment complexes in Farmers Branch as well as the owners and managers of apartment complexes in the city. Defendant, the City of Farmers Branch, is herein referred to as “the city,” “Farmers Branch,” or “Defendant.”
2Plaintiffs move for judgment on two of their claims: (1) the Ordinance is preempted, and (2) the Ordinance violates the Due Process clause of the Fourteenth Amendment to the United States. In addition to these claims, the Villas Plaintiffs assert claims pursuant to 42 U.S.C. § 1981 and for violation of the Equal Protection Clause of the Fourteenth Amendment, 42 U.S.C. § 1983, and Section 214.903 of the Texas Local Government Code. See Second Am. Compl. (Mar. 9, 2007). The Vasquez Plaintiffs also pleaded claims for violation of the Equal Protection Clause of the Fourteenth Amendment, the Contracts Clause, and the First Amendment to the United States Constitution, and pursuant to the Fair Housing Act, 42 U.S.C. § 3601 et seq., and 42 U.S.C. § 1981. See First Am. Compl. for Decl. and Inj. Relief (Mar. 22, 2007).
3Defendant’s Motion for Summary Judgment, filed February 22, 2008, is also pending. Given the procedural posture of the case, the court defers ruling on this motion.
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City Council on January 22, 2007. The Ordinance was the second iteration of a law originally adopted by the City Council on November 13, 2006, Ordinance 2892. A state court issued a temporary restraining order enjoining implementation of Ordinance 2892 on January 9, 2007, finding that Ordinance 2892 “may have been approved and adopted in violation of the Texas Open Meetings Act.” Thereafter, the City Council repealed Ordinance 2892 and adopted the Ordinance. The Ordinance called for an election to allow the voters of Farmers Branch to vote for or against it. Ordinance (hereinafter, “Ord.”) § 5.
On May 12, 2007, the voters of Farmers Branch approved the Ordinance by a margin of 4,058 “for,” and 1,941 “against.” The Ordinance was to go into effect May 22, 2007. Id. § 7. On May 21, 2007, however, the court granted Plaintiffs’ applications for temporary restraining order, temporarily enjoining the enforcement of the Ordinance and preventing the Ordinance from going into effect. See Mem. Op. and Order Granting TRO (May 21, 2007). The court held a preliminary injunction hearing on June 5, 2007, extended the temporary restraining order with the parties’ consent until June 19, 2007, and granted Plaintiffs’ requests for a preliminary injunction on June 19, 2007. Since the court issued a preliminary injunction prohibiting the city from effectuating or enforcing the Ordinance, the city filed a motion to dismiss the Villas Plaintiffs’ claims for compensatory damages. The court granted the motion and dismissed with prejudice the claims for compensatory damages. Accordingly, only requests for declaratory and injunctive relief remain.4
4On January 22, 2008, the City of Farmers Branch passed Ordinance 2952, which also relates to the citizenship or immigration status of tenants in that city. On January 28, 2008, the city moved for leave to file a counterclaim for declaratory judgment, seeking a declaration from the court that Ordinance 2952 is “constitutional and valid under applicable law and will be, upon its taking effect, enforceable.” Proposed Def.’s Orig. Countercl. for Decl. J., Prayer ¶ 1. By separate order, the court has denied the city’s request for the court to issue an advisory opinion on the validity of Ordinance 2952. Memorandum Opinion and Order Granting Permanent Injunction – Page 2

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II. Ordinance 2903 The title of the Ordinance is: An ordinance repealing Ordinance 2892; adopting revised apartment complex rental licensing standards, mandating a citizenship certification requirement pursuant to 24 [Code of Federal Regulations] 5 et seq.; repealing Ordinance 2900; calling an election for May 12, 2007, to consider this ordinance (for or against); providing for enforcement; providing a penalty clause; providing a severability clause; and providing an effective date.
Ord. Title (original in all capital letters). The preamble to the Ordinance states that “the City Council finds and determines that the benefits and protections provided through the HUD citizenship and immigration status certification processes would also benefit the City;” that “the City of Farmers Branch is authorized to adopt ordinances pursuant to its police power to protect the health, safety, and welfare of its citizens;” and that “the City of Farmers Branch has determined that it is a necessity to adopt citizenship and immigration certification requirements for apartment complexes to safeguard the public, consistent with the provisions of 24 CFR 5, et seq.” Id. Preamble.5 The Ordinance also states that “the purposes of this Ordinance are to promote the public health, safety, and general welfare of the public.” Id.
The Ordinance amends Chapter 26, Article IV of the City’s Code of Ordinances relating to apartment complex rental. Specifically, the Ordinance adds language to section 26-116(d)(3) and creates a new section 26-116(f) titled “Citizenship or Immigration Status Verification.” Id. § 3(A)(B).
5The “whereas” clauses of the Ordinance are incorporated by section 1 of the Ordinance: “[A]ll matters stated hereinabove are found to be true and correct and are incorporated into the body of this Ordinance by reference as if copied in their entirety.” Ord. § 1. Memorandum Opinion and Order Granting Permanent Injunction – Page 3

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Subsection (1) of the new section (f) defines various terms used in the section, and states that the definitions are consistent with 24 CFR 5.504. Id. § 3(B)(f)(1). The term “Evidence of citizenship or eligible immigration status” is defined as “the documents which must be submitted to evidence citizenship or eligible immigration status for residency in the United States.” Id. “Citizen” is defined as “a citizen or national of the United States.” Id. “National means a person who owes permanent allegiance to the United States, for example, as a result of birth in a United States territory or possession.” Id. Noncitizen is defined as “a person who is neither a citizen nor national of the United States.” Id.
Subsection (2) provides: “The owner and/or property manager shall require as a prerequisite to entering into any lease or rental arrangement, including any lease or rental renewals or extensions, the submission of evidence of citizenship or eligible immigration status for each tenant family consistent with subsection (3).” Id. § 3(B)(f)(2).
Subsection (3) relates to “[e]vidence of citizenship or eligible immigration status” and lists the evidence required to show tenants’ citizenship or immigration status. Id. § 3(B)(f)(3). This section sets out the documentation that tenants must provide. Noncitizens must provide: (1) a signed declaration of “eligible immigration status;” (2) a “form designated by [United States Immigration and Customs Enforcement]6 as acceptable evidence of immigration status;” and (3) a “signed verification consent form.” Id. § 3(B)(f)(3)(ii)(a)-(c).
Subsection (4) outlines the owner and/or property managers’ obligations with regard to the evidence of citizenship or “eligible immigration status:”
6The Ordinance defines “ICE” as “Immigration and Customs Enforcement Department.” The court believes that this is a misnomer, as United States Immigration and Customs Enforcement is a component of the United States Department of Homeland Security, and therefore not a separate United States Department. Memorandum Opinion and Order Granting Permanent Injunction – Page 4

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(i) The owner and/or property manager shall request and review original documents of eligible citizenship or immigration status. The owner and/or property manager shall retain photocopies of the documents for its own records and return the original documents to the family. Copies shall be retained by the owner and/or property manager for a period of not less than two (2) years after the end of the family’s lease or rental.
(ii) The owner and/or property manager shall require that each family member submit evidence of citizenship or immigration status only once during continuous occupancy. The owner and/or property manager is prohibited from allowing the occupancy of any unit by any family which has not submitted the required evidence of citizenship or eligible immigration status under this Section . . . .
Id. § 3(B)(f)(4)(i)-(ii).
Section 4 of the Ordinance provides both a clause regarding severability of portions of the
Ordinance and a statement regarding the intent and effect of the Ordinance in relation to federal
immigration law:
If any section, paragraph, subdivision, clause or phrase of this Ordinance shall be adjudged invalid or held unconstitutional, the same shall not affect the validity of this Ordinance as a whole or any part of any provision thereof other than the part so decided to be invalid or unconstitutional. The intention of this Ordinance and the exercise of the police power of the City is not an attempt or effort to promulgate new and additional Immigration Laws or to conflict in any manner with the Federal Government’s promulgation and enforcement of Immigration Laws.
Id. § 4.
Finally, the Ordinance includes a section describing penalties for violation. Specifically,
section 6 of the Ordinance provides: “any person violating any of the provisions of this ordinance
shall be deemed guilty of a misdemeanor and upon conviction thereof shall be fined in a sum not
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to exceed $500 and a separate offense shall be deemed committed upon each day during or on which a violation occurs or continues.” Id. § 6.
Plaintiffs have moved for partial summary judgment, asking the court to enter judgment on their claims that (1) the Ordinance is preempted by federal law and (2) the Ordinance violates the Due Process Clause of the Fourteenth Amendment to the United States Constitution. They request that the court enter partial summary judgment on these claims, declare the Ordinance unconstitutional, and permanently enjoin the enforcement and effectuation of the Ordinance.7 III. Legal Standard – Motion for Summary Judgment
Summary judgment shall be rendered when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986); Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998). A dispute regarding a material fact is “genuine” if the evidence is such that a reasonable jury could return a verdict in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When ruling on a motion for summary judgment, the court is required to view all facts and inferences in the light most favorable to the nonmoving party and resolve all disputed facts in favor of the nonmoving party. Boudreaux v. Swift Transp. Co., Inc., 402 F.3d 536, 540 (5th Cir. 2005). Further, a court “may not
7Although Plaintiffs’ motion also includes a request for the award of attorney’s fees and costs, the reply filed by the Villas Plaintiffs makes clear that Plaintiffs intend to move for an award of attorney’s fees pursuant to Rule 54(d) of the Federal Rules of Civil Procedure if the court grants their motion and enters judgment on their behalf. Memorandum Opinion and Order Granting Permanent Injunction – Page 6

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make credibility determinations or weigh the evidence” in ruling on motion for summary judgment. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000); Anderson, 477 U.S. at 254-55.
Once the moving party has made an initial showing that there is no evidence to support the nonmoving party’s case, the party opposing the motion must come forward with competent summary judgment evidence of the existence of a genuine fact issue. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 586 (1986). Mere conclusory allegations are not competent summary judgment evidence, and thus are insufficient to defeat a motion for summary judgment. Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir. 1996). Unsubstantiated assertions, improbable inferences, and unsupported speculation are not competent summary judgment evidence. See Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir.), cert. denied, 513 U.S. 871 (1994). The party opposing summary judgment is required to identify specific evidence in the record and to articulate the precise manner in which that evidence supports his claim. Ragas, 136 F.3d at 458. Rule 56 does not impose a duty on the court to “sift through the record in search of evidence” to support the nonmovant’s opposition to the motion for summary judgment. Id.; see also Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915-16 & n.7 (5th Cir.), cert. denied, 506 U.S. 832 (1992). “Only disputes over facts that might affect the outcome of the suit under the governing laws will properly preclude the entry of summary judgment.” Anderson, 477 U.S. at 248. Disputed fact issues which are “irrelevant and unnecessary” will not be considered by a court in ruling on a summary judgment motion. Id. If the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to its case and on which it will bear the burden of proof at trial, summary judgment must be granted. Celotex, 477 U.S. at 322-23.
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IV. Analysis A. Introduction In the court’s previous opinions in this case, it made clear that it is well aware that the
Ordinance has been the subject of much scrutiny by the media and the public, and citizens from Farmers Branch and beyond have communicated their support of the Ordinance to the court. While recognizing the frustration of citizens and public officials regarding the lack of enforcement of federal immigration laws, the court reiterates that the “will of the people” in endorsing the Ordinance does not bestow the imprimatur of constitutionality on the Ordinance. The court is not to rubber-stamp politically popular enactments. A court that approves an ordinance merely because it is politically popular abdicates its judicial obligation to decide independently and on existing legal precedent whether the ordinance passes constitutional muster. This is not the first time – nor will it be the last – that a court has held a politically popular ordinance to be unconstitutional.
B. Parties’ Contentions The court has already reviewed and considered extensive briefing regarding the constitutionality of the Ordinance and the merits of Plaintiffs’ claims. Plaintiffs filed both applications for temporary restraining order and preliminary injunction, and Defendant had an opportunity to respond to both. The court held a preliminary injunction hearing and the parties submitted additional supplemental briefing. Defendant relies on its previous briefing, incorporating its prior responses and attaching two additional recent cases;8 Plaintiffs also incorporate their earlier
8Although the court does not rule on Defendant’s motion at this time, because its response to Plaintiffs’ motion incorporated its motion for summary judgment, the court has reviewed and considered both Defendant’s Motion for Summary Judgment and Defendant’s response to Plaintiffs’ Motion for Partial Summary Judgment. Memorandum Opinion and Order Granting Permanent Injunction – Page 8

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briefing, but they have also filed an extensive motion for summary judgment. They urge the court to adhere to its prior decisions and grant them partial summary judgment.
The city “refer[s] the [c]ourt to the recent decisions in Gray v. City of Valley Park, Missouri, No. 07-0088, 2008 WL 294294 (E.D. Mo. Jan. 31, 2008), and Arizona Contractors Association, Inc. v. Candelaria, No. 07-2496, 2008 WL 343082 (D. Ariz. Feb. 7, 2008), as they relate to the issues of preemption, due process, and equal protection.” Docket No. 130, Def.’s Mot. for Summ. J. 4. While it attaches copies of these two opinions, Defendant does not make any additional argument regarding these decisions, compare the facts in these cases to the instant facts, or specifically address how these cases support the arguments it has previously made.
The court has reviewed the Gray and Arizona Contractors cases and finds that Defendant’s reliance on these recent decisions is inapposite. Neither case deals with an ordinance similar to the Ordinance in this case; the courts in those cases considered the constitutionality of ordinances that created requirements for employers, not landlords, in considering the immigration status of their employees, not tenants. Gray, 2008 WL 294294, at *1; Arizona Contractors, ___ F. Supp. 2d ___, 2008 WL 343082, at *1.
The preemption analysis in these cases focuses on a specific provision of 8 U.S.C. § 1324a that states: “The provisions of this section preempt any State or local law imposing civil or criminal sanctions (other than through licensing or similar laws) upon those who employ, or recruit and refer for a fee of employment, unauthorized aliens.” 8 U.S.C. § 1324a(h)(2); Gray, 2008 WL 294294, at *9; Arizona Contractors, ___ F. Supp. 2d ___, 2008 WL 343082, at *6. Defendant has never relied on this provision in its prior briefing, and the court does not consider its passing citation to these two cases an argument that somehow the Ordinance should not be preempted because it would
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fall within this provision. Such an argument, even if that is what Defendant intends to put forth, is undermined by the plain language of the statute, which refers explicitly to “licensing or similar laws” related to employment.
Finally, the mechanism for determining the status of aliens in the Gray and Arizona Contractors cases is completely different from that required by the Ordinance. The Farmers Branch Ordinance relies upon owners and property managers to review immigration documents and determine if a tenant or potential tenant has an “eligible immigration status.” The ordinances at issue in Gray and Arizona Contractors require employers to use the federal government’s E-Verify program to determine the eligibility of potential employees. Gray, 2008 WL 294294, at *17; Arizona Contractors, 2008 WL 343082, at *12-13. Accordingly, in those ordinances, federal classifications of status are used. These facts are distinguishable from the enforcement mechanism of the Ordinance, which adopts classifications based on regulations promulgated by the United States Department of Housing and Urban Development.
For these reasons, the court determines that Defendant’s reliance upon the Gray and Arizona Contractors decisions is unwarranted given the differences between those ordinances and the Ordinance before the court. The court determines that these opinions do not disturb its prior conclusions that the Ordinance is preempted and violates the Due Process clause of the United States Constitution.
C. Preemption Claim The court turns first to Plaintiffs’ claims that the Ordinance is preempted by the Constitution and federal law. The Supremacy Clause of the Constitution states, “This Constitution, and the Laws of the United States . . . shall be the supreme Law of the Land; and the Judges in every State shall
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be bound thereby . . . .” U.S. Const., art. VI, cl. 2. “A fundamental principle of the Constitution is that Congress has the power to preempt state law.” Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 372 (2000) (citing U.S. Const., art. VI, cl. 2; Gibbons v. Ogden, 9 Wheat. 1, 211 (1824); Savage v. Jones, 225 U.S. 501, 533 (1912); and California v. ARC America Corp., 490 U.S. 93, 101 (1989)).
The Supreme Court has held that state immigration laws can be preempted by federal law in several ways. De Canas v. Bica, 424 U.S. 351 (1976). In that case, the Court noted that only the federal government may issue a “regulation of immigration,” which the court defined as “a determination of who should or should not be admitted into the country, and the conditions under which a legal entrant may remain.” Id. at 355. The Court also noted that “[e]ven when the Constitution does not itself commit exclusive power to regulate a particular field to the Federal Government, there are situations in which state regulation, although harmonious with federal regulation, must nevertheless be invalidated under the Supremacy Clause.” Id. at 356. The Court went on to note: “[F]ederal regulation . . . should not be deemed preemptive of state regulatory power in the absence of persuasive reasons either that the nature of the regulated subject matter permits no other conclusion, or that the Congress has unmistakably so ordained.” Id. (brackets and ellipsis in original) (quoting Florida Lime & Avocado Growers v. Paul, 373 U.S. 132, 142 (1963)).
District courts, construing the Supreme Court’s decision in De Canas, have noted that the decision creates three tests for determining whether a state immigration law or regulation is preempted by federal law:
Under the first test, the Court must determine whether a state statute is a regulation of immigration. Since the power to regulate immigration is unquestionably exclusively a federal power, any state statute which regulates immigration is constitutionally prescribed.
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Under the second test, even if the state law is not an impermissible regulation of immigration, it may still be preempted if there is a showing that it was the clear and manifest purpose of Congress to effect a complete ouster of state power–including state power to promulgate laws not in conflict with federal laws with respect to the subject matter which the statute attempts to regulate. In other words, a statute is preempted where Congress intended to occupy the field which the statute attempts to regulate. Under the third test, a state law is preempted if it stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress. Stated differently, a statute is preempted under the third test if it conflicts with federal law making compliance with both state and federal law impossible. League of United Latin American Citizens v. Wilson, 908 F. Supp. 755, 768 (C.D. Cal. 1995) (hereinafter “LULAC”) (internal citations and quotations omitted); see also Garrett v. City of Escondido, 465 F. Supp. 2d 1043, 1055 (S.D. Cal. 2006); Equal Access Education v. Merten, 305 F. Supp. 2d 585, 601-602 (E.D. Va. 2004). The court now addresses the first De Canas test. 1. “Regulation of Immigration” The United States Constitution grants Congress the exclusive power to “establish an uniform Rule of Naturalization” and to “regulate Commerce with foreign Nations.” U.S. Const. art. I § 8, cl. 4, 3. The Court has repeatedly held that the “[p]ower to regulate immigration is unquestionably exclusively a federal power.” De Canas, 424 U.S. at 354 (citing Passenger Cases, 7 How. 283 (1849); Henderson v. Mayor of New York, 92 U.S. 259 (1876); Chy Lung v. Freeman, 92 U.S. 275 (1876); Fong Yue Ting v. United States, 149 U.S. 698 (1893)); see also Plyler v. Doe, 457 U.S. 202, 225 (1982) (“The States enjoy no power with respect to the classification of aliens. This power is committed to the political branches of the Federal Government. . . . [O]nly rarely are such matters relevant to legislation by a State.”) (internal citations and quotations omitted); Toll v. Moreno, 458
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U.S. 1, 10 (1982) (“Our cases have long recognized the preeminent role of the Federal Government with respect to the regulation of aliens within our borders.”); Traux v. Raich, 239 U.S. 33, 42 (1915) (“The authority to control immigration . . . is vested solely in the Federal government.”). The Supreme Court, nonetheless, “has never held that every state enactment which in any way deals with aliens is a regulation of immigration and thus per se pre-empted by this constitutional power, whether latent or exercised.” De Canas, 424 U.S. at 355. Rather, a court must look to whether the state law is a “regulation of immigration,” defined by the Supreme Court as “essentially a determination of who should or should not be admitted into the country, and the conditions under which a legal entrant may remain.” Id.
In De Canas, the Supreme Court upheld a California statute that provided: “No employer shall knowingly employ an alien who is not entitled to lawful residence in the United States if such employment would have an adverse effect on lawful resident workers.” Id. at 353 n.1. In determining that this statute was not a regulation of immigration, the court noted that California “adopt[ed] federal standards.” Id. at 355. Another California proposition was held to be an impermissible regulation of immigration where the statute itself provided classification of noncitizens. LULAC, 908 F. Supp. at 772. The California proposition defined individuals as “(1) citizens; (2) lawfully admitted as a permanent resident; or (3) lawfully admitted for a temporary period.” Id. The district court in that case held that “the state has created its own scheme setting forth who is, and who is not, entitled to be in the United States.” Id. (emphasis in original).
A district court in Virginia, considering state university admission standards for immigrant applicants, held that after De Canas, the question under the first test is “whether defendants’ . . . policies simply adopt federal standards, in which case they are not invalid under the Supremacy
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Clause, or instead create and apply state standards to assess the immigration status of applicants, in which case the policies may run afoul of the Supremacy Clause.” Equal Access Education, 305 F. Supp. 2d at 603.
a. Adoption of HUD Regulations Plaintiffs argue that the Ordinance is a “regulation of immigration” because it creates a new classification of immigration by incorporating the definitions used in 24 CFR 5.504, regulations issued by the United States Department of Housing and Urban Development outlining restrictions on federal housing subsidies to noncitizens. Plaintiffs contend that the Ordinance precludes several classes of noncitizens – who lawfully reside in the country but are ineligible for housing assistance – from renting an apartment in Farmers Branch. See 42 USC § 1436a(a)(1) (allowing federal housing assistance to “alien[s] lawfully admitted for permanent residence” but “excluding, among others, alien visitors, tourists, diplomats, and students who enter the United States temporarily . . .”). Plaintiffs argue that the Ordinance itself is a “regulation of immigration” because restricting an individual’s ability to live in Farmers Branch is tantamount to determining whether that individual is lawfully resident in the country. At the preliminary injunction, counsel for Plaintiffs argued:
Who can be here and the conditions upon which they can live includes Farmers Branch setting up a system that says you because of your immigration status cannot be here in Farmers Branch. You must go somewhere else. And it raises the specter of cities all over the place enacting a patchwork of inconsistent systems to enforce, to regulate immigration. Because of your immigration status, you cannot come into our town, and denying housing is effectively saying you cannot be here. You cannot live here. Trans. of Prelim. Inj. H’rg (June 5, 2007) (hereinafter, “Trans.”) 75:7-16. Plaintiffs cite Traux v. Raich, a case in which the Supreme Court struck down an employment statute and held that “[t]he
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assertion of an authority to deny to aliens the opportunity of earning a livelihood when lawfully admitted to the state would be tantamount to the assertion of the right to deny them entrance and abode . . . .” 239 U.S. at 42. Plaintiffs also point to Takahashi v. Fish & Game Comm’n, 334 U.S. 410, 419 (1948), where the Court held that states “can neither add to nor take from the conditions lawfully imposed by Congress upon admission, naturalization and residence of aliens in the United States or the several states.” Plaintiffs argue that because the Ordinance excludes certain legal residents– such as students, tourists, and diplomats– from lawfully residing in Farmers Branch, it is as if the City of Farmers Branch is imposing new regulations regarding who may enter the United States.
Defendant responds that while the Ordinance does refer to 24 CFR 5, the Ordinance provides that the evidence that noncitizens must show to determine their “eligible immigration status” is simply “[a] form designated by ICE as acceptable evidence of immigration status.” Ord. § 3(B)(f)(3)(ii)(b). The city argues that any legal resident may rent an apartment in Farmers Branch regardless of that resident’s eligibility for federal housing subsidies. The city also argues that the Ordinance does not create new immigration regulations and that the stated intention of the city “is not an attempt or effort to promulgate new and additional Immigration Laws or to conflict in any manner with the Federal Government’s promulgation and enforcement of Immigration Laws.” Id. § 4.
The city contends that the Ordinance does not violate the first De Canas test because it is not a “regulation of immigration” that is “a determination of who should or should not be admitted into the country, and the conditions under which a legal entrant may remain.” 424 U.S. at 355 (emphasis
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added). The city argues that the Ordinance does not affect any individual who is legally resident in the United States.
The city further contends that the court must construe the Ordinance under the assumption that the city intended for the Ordinance to comply with the Constitution. The city argues that the court must read the Ordinance as simply adopting federal immigration standards. According to Defendant, the Ordinance must be presumed to be effective and to not intentionally conflict with the Constitution. Tex. Gov. Code § 311.021. “Statutes are given a construction consistent with constitutional requirements, when possible, because the legislature is presumed to have intended compliance with the state and federal constitutions.” Brady v. Fourteenth Court of Appeals, 795 S.W.2d 712, 715 (Tex. 1990); see also United States v. Mississippi Dep’t of Public Safety, 321 F.3d 495, 500 (5th Cir. 2003) (“[T]here is a time-honored presumption that a statute is a constitutional exercise of legislative power.”) (internal citations, quotations, and brackets omitted).
The plain language of the Ordinance adopts definitions consistent with 24 CFR 5, which, as previously described, limits those with “eligible immigration status” to those noncitizens who are eligible for federal housing subsidies. The court has construed the Ordinance pursuant to the plain language of the statute, and it is not possible to construe the Ordinance as complying with the Constitution. The title of the Ordinance itself incorporates the HUD regulations, as the title includes this phrase: “Adopting revised apartment complex rental licensing standards, mandating a citizenship certification requirement pursuant to 24 CFR 5 et seq.” Ord. Title.
The court determines that despite the city’s contention that it intended to adopt federal immigration standards as required by the first De Canas test, it has actually adopted federal housing regulations used to determine noncitizens’ eligibility for assistance. The Ordinance, therefore, is
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preempted because it is a “regulation of immigration,” a regulatory power reserved for the federal government. The Ordinance is rife with references to the HUD regulations, and it is clear that the Ordinance depends on the scheme set out by the HUD regulations: the Ordinance is titled, in part, “mandating a citizenship certification requirement pursuant to 24 CFR 5 et seq.” and the preamble states “the U.S. Department of Housing and Urban Development regulations stipulate that rental tenants must submit evidence of citizenship or immigration status consistent with 24 CFR 5, et seq.;” “24 CFR 5, et seq., the general HUD provisions, provide for a uniform and non-discriminatory certification process for citizenship and immigration status;” “the HUD certification process has been in place for many years and is currently in use;” “the City Council finds and determines that the benefits and protections provided through the HUD citizenship and immigration status certification processes would also benefit the City;” and “the City of Farmers Branch has determined that it is a necessity to adopt citizenship and immigration certification requirements for apartment complexes to safeguard the public, consistent with the provisions of 24 CFR 5, et seq.” Id. Title, Preamble.
The Ordinance is replete with references to “eligible immigration status,” and the Ordinance defines this term as “consistent with 24 CFR 5.504.” Id. § 3(B)(f)(1). As Plaintiffs have pointed out, the HUD regulations simply define which noncitizens are eligible for federal housing subsidies, see 24 CFR 5.508(a); the HUD regulations do not determine whether a person is legally or illegally in the United States. The HUD regulations require that immigration status is verified through an automated INS system or by INS itself. See 24 CFR § 5.512(c)-(d). Moreover, certain individuals who are legally in the country are statutorily excepted from receiving federal housing assistance. 42 USC § 1436a(a)(1) (“excluding, among others, alien visitors, tourists, diplomats, and students
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who enter the United States temporarily”). Accordingly, the Ordinance affects the “conditions under which a legal entrant may remain,” De Canas, 424 U.S. at 355, because it excludes certain legal residents from renting an apartment in Farmers Branch.
The city’s own evidence also establishes that the Ordinance relies heavily on the HUD regulations for the application and enforcement of the Ordinance. The city sent a letter to apartment complexes in Farmers Branch describing the “verification form requirements” adopted by city staff for compliance with the Ordinance. Docket No. 74, Def.’s App. 62. For a “noncitizen with eligible immigration status,” the letter requires a signed declaration of “eligible immigration status” and one of several documents described in the letter. Id. at 62-63. The letter lists the following acceptable documents: Form I-551, Form I-94, Form I-668, Form I-668B, “receipt issued by the DHS indicating that an application for a replacement document has been entered and verified, and the document would fall into an aforementioned category,” or “any other form designated by the Immigration and Customs Enforcement Department as acceptable evidence of immigration status.” Id. The letter to the apartment complexes included samples of a declaration format, verification consent form, and owner’s summary of family. Id. at 64-68. On the face of these documents, it is clear that they are HUD forms; each document states “HUD Occupancy Handbook” on the bottom of each page. Id. The “declaration format” also lists documents that must be submitted by a noncitizen with “eligible immigration status” and includes all the forms included in the letter from the city but omits the last category of documentation, any form designated by ICE. Id. at 64-65.
The city points out that the Ordinance specifically requires that a noncitizen show a “form designated by ICE as acceptable evidence of immigration status,” Ord. § 3(B)(f)(3)(ii)(b), and the city argues that the Ordinance “does not purport to adopt those HUD regulations in their entirety,
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nor does it deny housing to certain individuals who are legally entitled to reside in this country, but who are not eligible to reside in public housing.” Docket No. 73, Def.’s Resp. 12. The court is not persuaded by the city’s argument. While noncitizens must provide evidence of a “form designated by ICE,” this is only one of three pieces of evidence that such an individual must provide. The Ordinance requires that a noncitizen provide as evidence of “eligible immigration status:”
a. A signed declaration of eligible immigration status; b. A form designated by ICE as acceptable evidence of
immigration status; and c. A signed verification consent form. Ord. § 3(B)(f)(3)(ii) (emphasis added). A noncitizen is still bound by the requirement of a declaration of his or her “eligible immigration status,” a term defined consistent with 24 CFR 5 and the HUD regulations regarding housing subsidy eligibility. The court determines that the city’s reliance on the HUD regulations and documents demonstrates that the city is doing more than adopting federal immigration requirements; the city adopts federal regulations regarding housing benefits to noncitizens and uses those regulations to define which noncitizens may rent an apartment in Farmers Branch. The Ordinance’s clear intent to adopt the “benefits and protections provided through the HUD citizenship and immigration status certification processes,” the use of the term “eligible immigration status” as defined in the context of federal housing subsidies, the requirement that noncitizens file a declaration regarding their “eligible immigration status,” and the use of HUD definitions and forms is in effect defining immigration status for the purpose of the Ordinance. Because this definition is not consistent and coextensive with federal immigration standards, the city has attempted to regulate immigration in violation of the Constitution and the Supremacy Clause. The HUD regulations do not include all noncitizens lawfully in the country under federal immigration standards; because the Ordinance
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relies on or adopts HUD regulations, certain legal noncitizens will be excluded from renting an apartment in Farmers Branch. For example, a landlord who rents to certain noncitizens who are legally in the country temporarily, such as students, would be subject to criminal sanctions. Accordingly, the court concludes that the Ordinance relies on the HUD regulations and thus is an impermissible “regulation of immigration.”
b. Verification of Immigration Status Plaintiffs also contend that because the Ordinance requires the determination of immigration status to be made by the owners and property managers of apartments in Farmers Branch, the Ordinance essentially deputizes these private individuals as federal immigration officials and takes a federal function away from the federal government. The Ordinance places the burden initially on the owner or property manager to ask tenants or potential tenants for evidence of citizenship or immigration status. Ord. § 3(B)(f)(3). Tenants may appeal to a City Building Official if they are denied occupancy because of immigration status. Id. § 3(B)(f)(3)(viii). The city argues that its Ordinance is not a “regulation of immigration” because it does not determine who may be in the country and because the Ordinance simply requires the collection of immigration information. Specifically, the city argued that the “Ordinance’s provisions simply require that an apartment employee collect and maintain certain immigration documentation.” Docket No. 94, Def.’s Supp. Resp. 5 (emphasis in original). The city also argued at the preliminary injunction hearing that any adoption of the HUD regulations is limited to the HUD document collection requirements: “The only portion of the HUD regulations that are adopted by the ordinances [sic] are what documentation do you need to present. . . . All the ordinance says is that HUD has a documentation recordkeeping scheme that has been in place and adopts that as the
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recordkeeping system adopted by the City.” Trans. 57:11-13, 17-20. Finally, the city argues that its collection of immigration documents will assist the federal government in enforcing immigration laws.
Defendant argues that document collection related to immigration status by states occurs regularly in a variety of contexts. The majority of the examples provided by Defendant, however, is based upon federal law. See 8 USC § 1324a(b) (federal law prohibiting unlawful employment of aliens); 42 USC § 1320b-7(b)(1) (Aid to Families with Dependent Children); 42 USC § 1320b7(b)(2) (Medicaid); 7 USC § 2015(f) (Food Stamps). Although these examples include state collection of immigration status, it remains that these regulations are issued by the federal government, not a city.
Defendant does cite examples of state determination of immigration status for purposes of voter’s registration and driver’s licenses; however, these programs appear to wholly adopt federal immigration standards. Defendant cites Gonzalez v. Arizona, 485 F.3d 1041 (9th Cir. 2007), for the proposition that a state may require evidence of citizenship to obtain a voter’s registration card. The Arizona law at issue provided:
“Satisfactory evidence of citizenship” may be shown by including, with the voter registration form, any of the following: the number of an Arizona driver’s license or non-operating identification license . . .; a legible copy of a birth certificate; a legible copy of a United States passport; United States naturalization documents or the number of the certificate of naturalization; “other documents or methods of proof that [may be] established pursuant to” federal immigration law.” Id. at 1047 (brackets in original). Defendant cites to a section of the Texas Transportation Code, arguing that Texas also requires proof of immigration status to obtain a license. The section,
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applicable to “agreements with foreign countries,” also appears consistent with federal immigration standards:
A person who is not a citizen of the United States must present to the department documentation issued by the United States agency responsible for citizenship and immigration authorizing the person to be in the United States before the person may be issued a driver’s license under an agreement under this section. Tex. Transp. Code § 521.0305(c). Additionally, Defendant cites a Georgia case for the proposition that Georgia also requires proof of immigration status to obtain a license. John Doe No. 1 v. Georgia Dep’t of Public Safety, 147 F. Supp.2d 1369 (N.D. Ga. 2001). While the court dismissed the argument that the statute was a “substantial burden upon national immigration policy,” the challenged law applied federal immigration standards. Id. at 1376. The Georgia law provides: “no person shall be considered a resident for purposes of this chapter unless such person is either a United States citizen or an alien with legal authorization from the U.S. Immigration and Naturalization Service.” Ga. Code Ann. § 40-5-1(15). Plaintiffs argue that the Ordinance requires landlords to make determinations of immigration status. The Vasquez Plaintiffs point out that landlords must determine whether a document is sufficient to show “eligible immigration status.” Ord. § 3(B)(f)(2). The Ordinance requires that landlords “request and review original documents of eligible citizenship or immigration status.” Id. at § 3(B)(f)(4)(i) (emphasis added). Finally, the Vasquez Plaintiffs point to Defendant’s own exhibit, the letter from the city to apartment complex owners and managers, which states that apartment owners and managers “must verify citizenship or immigration status for each occupant of an apartment prior to entering into a new lease agreement.” Docket No. 74, Def.’s App. 62 (emphasis added).
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The court rejects the city’s thinly-veiled argument that tries to distinguish its Ordinance as no more than a system of recordkeeping that is intended to assist the federal government in its enforcement of immigration laws. While the city may describe the Ordinance in this way, it is clear that the actual text of the Ordinance makes the provision of immigration documentation a “prerequisite” to the renting of an apartment in Farmers Branch. Ord. § 3(B)(f)(2) (“The owner and/or property manager shall require as a prerequisite to entering into any lease or rental arrangement . . . the submission of evidence of citizenship or eligible immigration status for each tenant family consistent with subsection (3).”). In addition, a landlord is “prohibited from allowing the occupancy of any unit by any family which has not submitted the required evidence of citizenship or eligible immigration status.” Id. at § 3(B)(f)(4)(ii).
The Ordinance itself does not define the term “prerequisite,” but the term as commonly defined means “something that is necessary to an end or to the carrying out of a function.” MerriamWebster’s Collegiate Dictionary 981 (11th ed. 2004). In other words, before a landlord can even enter into a lease or rental agreement, the landlord must take the necessary first step of requiring the submission of documentation related to citizenship or immigration status. Ord. § 3(B)(f)(2). Although it is not spelled out in black and white, the dominant, and perhaps sole, purpose of this provision of the Ordinance is to prevent illegal immigrants from renting apartments in Farmers Branch; otherwise, there would be no need to verify immigration status as a prerequisite for entering into a lease. Of course the city, through legal legerdemain and sophistication, has avoided including in the Ordinance any specific reference to denying rental apartment units to illegal immigrants, but considering the Ordinance as a whole, its purpose is unmistakably clear.
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The city’s argument that it is acting to support the federal government’s immigration
enforcement is specious. Local enforcement of federal immigration law is sanctioned by section
287(g) of the Immigration and Naturalization Act which provides:
[T]he Attorney General may enter into a written agreement with a State, or any political subdivision of a State, pursuant to which an officer or employee of the State or subdivision, who is determined by the Attorney General to be qualified to perform a function of an immigration officer in relation to the investigation, apprehension, or detention of aliens in the United States . . . , may carry out such function at the expense of the State or political subdivision and to the extent consistent with State and local law.
8 USC § 1357(g)(1). Nothing in the Ordinance demonstrates the city’s intent to assist the federal
government in this manner.
The Ordinance here requires more than the collection of immigration documents. The
Ordinance puts the burden of verifying immigration status upon landlords. In LULAC, the district
court held that a California proposition was a regulation of immigration, in part, because the law
required that state agents determine immigration status. 908 F. Supp. at 770. That court noted that:
state agents are unqualified – and also unauthorized – to make independent determinations of immigration status. . . . Indeed, determinations of immigration status by state agents amounts to immigration regulation whether made for the purposes of notifying aliens of their unlawful status and reporting their presence to the INS or for the limited purpose of denying benefits.
Id. The court determines that the Ordinance burdens private citizens and city officials with making
immigration status decisions based upon a scheme that does not adopt federal immigration
standards. Accordingly, the Ordinance is a “regulation of immigration” inconsistent with the federal
government’s rights and in violation of the first De Canas test. Plaintiffs also argue that the
Ordinance fails the second and third De Canas tests. In light of the court’s ruling with respect to
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the first De Canas test, it does not consider the parties’ arguments regarding the second and third De Canas tests.
2. Savings Clause Defendant argues in the alternative that if the court concludes that the Ordinance as drafted is preempted, the court should sever provisions pursuant to the savings clause of the Ordinance. Section 4 provides:
If any section, paragraph, subdivision, clause or phrase of this Ordinance shall be adjudged invalid or held unconstitutional, the same shall not affect the validity of this Ordinance as a whole or any part of any provision thereof other than the part so decided to be invalid or unconstitutional. Ord. § 4. At the preliminary injunction hearing, the city provided the court with three exhibits demonstrating various ways it believes the court could sever certain portions of the Ordinance in order to craft an Ordinance that is not preempted by the Supremacy Clause. Specifically, Version One omits all references to the HUD regulations and requires noncitizens to provide only a “signed declaration of eligible immigration status.” Version Two omits all references to the HUD regulations and requires noncitizens to present only a “form designated by ICE as acceptable evidence of immigration status.” Version Three omits all references to any federal regulations and leaves the rest of the Ordinance, for the most part, intact. In its supplemental brief, Defendant effectively offers a fourth version by arguing that if the term “eligible immigration status” is problematic, the court could simply omit the word “eligible” from the phrase throughout the text of the Ordinance. Plaintiffs argue that the court should not engage in rewriting the Ordinance, that the portions the city argues should be severed are not independent and cannot be severed, that severing
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references to the HUD regulations would violate the city’s legislative intent, that severing any portion of the Ordinance at this stage of the proceedings is improper, and that the three proposals submitted by the city are still preempted by federal law and are unconstitutional in other ways.
At the preliminary injunction hearing, one of the city’s attorneys acknowledged that “there are drafting issues to be addressed.” Trans. 40:12-13. The court agrees that the Ordinance has “drafting issues.” That the city has acknowledged problems with the Ordinance and has provided the court with four alternatives demonstrates the inherent weakness of the Ordinance. The court recognizes that the Fifth Circuit has considered and applied a savings analysis in the context of a preliminary injunction. Planned Parenthood of Houston and Southeast Texas v. Sanchez, 403 F.3d 324, 341-342 (5th Cir. 2005). Accordingly, the court considers whether the savings clause in the Ordinance allows the court to fashion any changes to the Ordinance to overcome the problems the Ordinance, as enacted, faces with regard to the Supremacy Clause.
“Generally speaking, when confronting a constitutional flaw in a statute, we try to limit the solution to the problem. We prefer, for example to enjoin only the unconstitutional applications of a statute while leaving other applications in force, or to sever its problematic portions while leaving the remainder intact.” Ayotte v. Planned Parenthood of Northern New England, 546 U.S. 320, 126 S.Ct. 961, 967 (2006) (internal citations omitted). In that case, the Court noted three principles that a court must follow when trying to save an otherwise unconstitutional statute:
First, we try not to nullify more of a legislature’s work than is necessary, for we know that a ruling of unconstitutionality frustrates the intent of the elected representatives of the people. . . . Second, mindful that our constitutional mandate and institutional competence are limited, we restrain ourselves from rewriting state law to conform it to constitutional requirements even as we strive to salvage it. . . . Third, the touchstone for any decision about remedy is legislative
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intent, for a court cannot use its remedial powers to circumvent the intent of the legislature. Id. at 968-969 (internal citations, quotations, and brackets omitted). In Reno v. ACLU, a case relied upon by the city, the Court also noted that it has long held: It would certainly be dangerous if the legislature could set a net large enough to catch all possible offenders, and leave it to the courts to step inside and say who could be rightfully detained, and who should be set at large. This would, to some extent, substitute the judicial for the legislative department of the government. 521 U.S. 844, 884 n.49 (quoting United States v. Reese, 92 U.S. 214, 221 (1875)). In Reno, the Court also noted that a severability clause is “an aid merely; not an inexorable command.” Id. (quoting Dorchy v. Kansas, 264 U.S. 286, 290 (1924)). The city’s proposed revisions to the Ordinance would require the court to excise various “whereas” clauses, references to federal regulations, and certain words and phrases of subsections of the Ordinance. No section of the Ordinance could be omitted entirely to prevent the preemption of the Ordinance; the city proposes instead a line-by-line revision of the Ordinance to try to salvage it. The federal regulations relied upon by the Ordinance, the references to the HUD regulations, and the term “eligible immigration status” are woven throughout the Ordinance. The legislative history that is available makes clear that the Farmers Branch City Council intended to adopt the HUD regulations. The minutes of the January 22, 2007 City Council meeting state: “City Attorney Matthew Boyle summarized the changes in the proposed ordinance: . . . 3) adopts revised apartment licensing standards based on HUD lease agreements . . . .” Docket No. 100, Vasquez Pls.’ App. 10. The city asks the court to essentially rewrite the Ordinance by stripping phrases that are inextricably intertwined to create a new Ordinance that clearly frustrates the city’s original legislative intent; it
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is not incumbent upon the court to write new legislation to save the Ordinance. The court declines to enforce the savings clause, concluding that the reliance on the HUD regulations was intentional and that any attempt to rewrite the Ordinance would require the court to legislate by creating an entirely new ordinance. Moreover, even if the court did sever parts of the existing Ordinance, the court determines that the resulting ordinance would likely be void for vagueness as described in the following section.
The city’s efforts to “save” the Ordinance and to rectify the acknowledged “drafting issues” cannot succeed because the court cannot and will not engage in the legislative exercise of redrafting the Ordinance. The court therefore determines that there is no genuine issue of material fact with respect to Plaintiffs’ claims that the Ordinance is preempted, and they are therefore entitled to judgment as a matter of law on these claims.
D. Due Process Claim The court considers next Plaintiffs’ claims that the Ordinance violates the Due Process clause of the Fourteenth Amendment to the United States Constitution because it is void for vagueness. The Fourteenth Amendment provides: no state shall “deprive any person of life, liberty, or property, without due process of law. . . .” U.S. Const. amend. XIV § 1. “[T]he void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.” Kolendar v. Lawson, 461 U.S. 352, 357 (1983); see also City of Chicago v. Morales, 527 U.S. 41, 56 (1999) (“It is established that a law fails to meet the requirements of the Due Process Clause if it is so vague and standardless that it leaves the public
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uncertain as to the conduct it prohibits . . . .”) (quoting Giaccio v. Pennsylvania, 382 U.S. 399, 402403 (1966)).
Plaintiffs argue that the Ordinance fails to provide sufficient guidance to landlords who are responsible for enforcing the Ordinance and who are subject to criminal penalties for failure to comply with the Ordinance. Specifically, Plaintiffs argue that the Ordinance fails to identify who must perform the obligations and who is liable for violations of the Ordinance (because the Ordinance places the burden upon the “owner and/or property manager,” that the Ordinance fails to identify which documents must be obtained and reviewed, and that the Ordinance creates inconsistent obligations upon property owners and managers. Plaintiffs argue that in light of the strict criminal liability for violation of the Ordinance, the court must find that the Ordinance is void for vagueness.
The city argues that the Ordinance contains clear standards, pointing to section 3(B)(f)(3)(i), which states the evidence requirements for U.S. citizens or nationals. The city also argues that the Ordinance expressly includes antidiscrimination provisions and that the city will provide training to landlords. The city also contends that because the Ordinance adopts the standards of ICE, landlords need not guess at what documents a potential tenant must provide.
The court determines that the Ordinance’s vagueness with regard to the meaning of “eligible immigration status” and the lack of specificity with regard to the documentation requirements require the conclusion that the Ordinance is void for vagueness. The city’s responses to the preemption and due process arguments demonstrate some tension: while the city has argued strenuously in response to the preemption arguments that the Ordinance does not adopt the HUD regulations, in response to the due process challenge, the city has argued that the regulations provide
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clear guidance as to whom is eligible to rent in Farmers Branch. The city also presents inconsistency in a comparison of the text of the Ordinance and its own exhibits that include the documents provided as training materials to landlords. Docket No. 74, Def. App. 61-88. While the Ordinance refers to “form[s] designated by ICE as acceptable evidence of immigration status,” Ord. § 3(B)(f)(3)(ii)(b), the sample documents are HUD documents that limit the acceptable documentation to those documents that establish eligibility for federal housing assistance. Docket No. 74, Def. App. 64-66.
A landlord, subject to criminal liability for violation of the Ordinance, relying on the city’s documents, would not know whether he was criminally liable for renting to a noncitizen legally residing in the country who lacked the documents listed on the HUD declaration. Id. at 65. A landlord must also, as a prerequisite to entering a lease with a noncitizen, determine whether that potential tenant has a “form designated by ICE as acceptable evidence of immigration status.” Ord. § 3(B)(f)(3)(ii)(b). The city maintains that it will provide training to landlords, but the evidence provided by the city itself demonstrates that it will use the HUD documents as its examples, creating confusion and uncertainty for landlords who desire to rent to individuals legally in the country but ineligible for federal housing assistance. The Ordinance, applied in a criminal context to landlords with no training or expertise in federal immigration law, fails to put these landlords on sufficient notice of what acts may be punished by the city.
The alternative versions of the Ordinance proposed by the city to solve the preemption problems also would be void for vagueness. The same problems apply to all three versions, which omit all references to the HUD regulations. The omission strips the Ordinance of the definitions of key terms creating even more uncertainty and confusion as to the meaning of the Ordinance.
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Accordingly, the court concludes that the Ordinance fails to sufficiently define the offense that would subject a landlord in Farmers Branch to criminal penalties. Thus, the court determines that Plaintiffs have established that there is no genuine issue of material fact with respect to their Due Process claims, and they are entitled to judgment as a matter of law on these claims. Accordingly, the court grants Plaintiffs’ Motion for Partial Summary Judgment. V. Plaintiffs’ Request for Permanent Injunction
Plaintiffs ask the court to permanently enjoin Defendant from effectuating or enforcing the Ordinance. The elements of a permanent injunction are essentially the same as those for a preliminary injunction “with the exception that the plaintiff must show actual success on the merits rather than a mere likelihood of success.” Amoco Prod. Co. v. Village of Gambell, 480 U.S. 531, 546 n.12 (1987). To establish that it is entitled to a preliminary injunction, a plaintiff must demonstrate: (i) a substantial likelihood of success on the merits; (ii) a substantial threat of immediate and irreparable harm for which it has no adequate remedy at law; (iii) that greater injury will result from denying the temporary restraining order than from its being granted; and (iv) that a temporary restraining order will not disserve the public interest. Clark v. Prichard, 812 F.2d 991, 993 (5th Cir. 1987); Canal Authority v. Callaway, 489 F.2d 567, 572 (5th Cir. 1974) (en banc). The party seeking such relief must satisfy a cumulative burden of proving each of the four elements enumerated before an injunction can be granted. Mississippi Power and Light Co. v. United Gas Pipeline, 760 F.2d 618, 621 (5th Cir. 1985); Clark, 812 F.2d at 993.
A. Actual Success on the Merits The first element – actual success on the merits – has been established. Plaintiffs have succeeded on the merits of their claims that the Ordinance is preempted and violates the Due Process
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clause of the Fourteenth Amendment to the United States Constitution, as they are entitled to partial summary judgment on these claims.
B. Threat of Immediate and Irreparable Harm The court finds that Plaintiffs have also established the second required element, the threat of immediate and irreparable harm. A party may be irreparably injured in the face of the threatened enforcement of a preempted law. Morales v. Trans World Airlines, Inc., 504 U.S. 374, 381 (1992). The court may enjoin state officers “who threaten and are about to commence proceedings, either of a civil or criminal nature, to enforce against parties affected an unconstitutional act, violating the Federal Constitution.” Id. (quoting Ex parte Young, 209 U.S. 123, 145-147 (1908)). Moreover, “[w]hen an alleged deprivation of a constitutional right is involved, most courts hold that no further showing of irreparable injury is necessary.” Louisiana Seafood Mgm’t Council, Inc. v. Foster, 917 F. Supp. 439, 442 n.1 (E.D. La. 1996) (quoting 11A Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Fed. Prac. & Proc. § 2948.1, p. 160-161 (1995)). The landlord Plaintiffs have established that they will be subject to fines and criminal penalties if they violate the Ordinance once it is in effect. See Ord. § 6 (“[A]ny person violating any of the provisions of this ordinance shall be deemed guilty of a misdemeanor and upon conviction thereof shall be fined in a sum not to exceed $500 . . .”). The declarations submitted by Plaintiffs also establish that the Ordinance is likely to cause irreparable harm to the landlord Plaintiffs’ business because the landlords will lose business to neighboring cities and because the Ordinance casts doubt on Farmers Branch landlords’ ability to lease to corporate tenants or through the internet. The tenant Plaintiffs have also established irreparable harm because the Ordinance creates uncertainty with regard to legal aliens without documentation sufficient under the Ordinance. One
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result of this uncertainty is that the tenant Plaintiffs may need to relocate and change jobs and schools, or remain in Farmers Branch and face eviction, all harms that may not be remedied by monetary damages. E.g., Enterprise Int’l, Inc. v. Corporacion Estatal Petrolera Ecuatoriana, 762 F.2d 464, 472-473 (5th Cir. 1985) (“[A]n injury is irreparable only if it cannot be undone through monetary remedies.”) (internal citations and quotations omitted). Accordingly, the court determines that the second requirement has been met by Plaintiffs.
C. Harm to the Plaintiffs versus Harm to Farmers Branch The court also determines that the third element has been demonstrated, because greater injury will result from denying a permanent injunction than from granting it. Clark, 812 F.2d at 993. The city argues that the voters of Farmers Branch have expressed their approval of the Ordinance. The court recognizes the election results, but does not find that the voters’ approval shows any harm to Farmers Branch by granting a permanent injunction. In the context of asking the court for a bond, the city has now had two opportunities to explain to the court what injury the city would face if the Ordinance was enjoined. The city could not demonstrate any specific, quantifiable harm to the city, but instead pointed to its “inability . . . to protect the health, safety, and welfare of the public.” Trans. 98:16-18. Given that Plaintiffs have established the likelihood of irreparable injury, weighed against an abstract and hypothetical injury to the city, the court determines that denying a permanent injunction would be more harmful to Plaintiffs than any injury to Farmers Branch by granting the applications. D. The Public Interest Finally, the court determines that a permanent injunction in this case is in the public interest. As the Fifth Circuit Court of Appeals has noted, the “public interest . . . does not extend so far as
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to allow . . . actions that interfere with the exercise of fundamental rights.” Deerfield Med. Center v. City of Deerfield Beach, 661 F.2d 328, 338-339 (5th Cir. 1981). Given that the court has determined that the Ordinance is preempted by the Constitution and is void for vagueness, the public interest is served by enjoining the effective date and enforcement of a local law that the court has determined to be at odds with the Constitution. VI. Conclusion and Permanent Injunction
All in all, the court concludes that only the federal government may determine whether an individual is legally in the United States. Farmers Branch, rather than deferring to the federal government’s determination of immigration status, has created its own classification scheme for determining which noncitizens may rent an apartment in that city. Farmers Branch has failed to adopt federal immigration standards. The Ordinance adopts federal housing regulations that govern which noncitizens may receive housing subsidies from the federal government, not federal immigration standards that determine which noncitizens are legally in this country. Because Farmers Branch has attempted to regulate immigration differently from the federal government, the Ordinance is preempted by the Supremacy Clause. The city’s attempts to save the Ordinance fail because the proposed revisions would require the court to engage in the legislative function of redrafting the Ordinance. Even if sections or phrases of the Ordinance could be severed, the Ordinance would suffer from the same– if not worse– vagueness problems.
The court, for the reasons herein stated, determines that the Villas and Vasquez Plaintiffs have shown that there is no genuine issue of material fact with respect to their claims that the Ordinance is preempted and that it violates the Due Process clause of the Fourteenth Amendment
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to the United States Constitution. Accordingly, Plaintiffs are entitled to judgment as a matter of law on these claims and the court grants Plaintiffs’ Motion for Partial Summary Judgment.
Plaintiffs have established that they are entitled to the entry of a permanent injunction. The court therefore orders that the City of Farmers Branch, Texas, and its officers, agents, servants, employees, representatives, and attorneys, are hereby permanently enjoined and prohibited from effectuating or enforcing Ordinance 2903.
When it granted the applications for a temporary restraining order, the court required the Villas Plaintiffs and the Vasquez Plaintiffs to each pay a bond in the amount of $1,500. Plaintiffs filed these bonds in cash. The purpose of such a bond is to provide “security . . . for the payment of such costs and damages as may be incurred or suffered by any party who is found to have been wrongfully enjoined and restrained.” Fed. R. Civ. P. 65(c). The court has determined that Plaintiffs have succeeded on their claims and that a permanent injunction is warranted. Accordingly, the court dissolves the bond and directs the clerk of the court to return these bonds to the Villas Plaintiffs and the Vasquez Plaintiffs.
It is so ordered this 28th day of May, 2008. _________________________________ Sam A. Lindsay United States District Judge
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IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS DALLAS DIVISION

VILLAS AT PARKSIDE PARTNERS d/b/a VILLAS AT PARKSIDE, et al.,
Plaintiffs, v. THE CITY OF FARMERS BRANCH,
Defendant.

§ § § § § § Civil Action No. 3:06-CV-2371-L § (consolidated with CA No. 3:06-CV-2376-L § and CA No. 3:07-CV-0061-L) § §

MEMORANDUM OPINION AND ORDER

Before the court are: (1) Motion of Federation of American Immigration Reform, Inc. for

Leave to Intervene as Defendant and to File an Answer, filed January 26, 2007; (2) Defendant City

of Farmers Branch’s Rule 12(b)(1) and 12(b)(6) Motion to Dism iss [Barrientos Plaintiffs’

Complaint], filed March 8, 2007; (3) [Villas] Pl aintiffs’ Unopposed Motion to Enlarge Tim e to

Respond to Defendant’s Motion to Dismiss, filed April 17, 2007; (4) [Barrientos] Plaintiffs’ Motion

for Leave to File Amended Complaint, filed May 23, 2007; (5) [Barrientos] Plaintiffs’ Motion for

Leave to Amend Application for Injunctive Relief, filed May 23, 2007; and (6) Motion to Withdraw

as Counsel, filed June 1, 2007. Aftrecareful consideration of the motions, responses, replies, record,

and applicable law, the court denies Motion of Federation of American Immigration Reform, Inc.

for Leave to Intervene as Defendant and to File an Answer,grants [Barrientos] Plaintiffs’ Motion

for Leave to File Amended Complaint, grants Defendant City of Farmers Branch’s Rule 12(b)(1)

and 12(b)(6) Motion to Dismiss, grants [Villas] Plaintiffs’ Unopposed Motion to Enlarge Time to

Respond to Defendant’s Moti on to Dismiss, denies as moot [Barrientos] Plaintiffs’ Motion for

Leave to Amend Application for Injunctive Relief, and grants Motion to Withdraw as Counsel.

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I. Procedural and Factual Background The court describe d the factual background of Farm ers Branch Ordinance 2903 (the
“Ordinance”) in its memorandum opinion and order granting temporary restraining order, entered May 21, 2007. The court therefore incorporates its earlier order insofar as the factual background of the Ordinance and procedural history of this case are described.
The Federation for American Immigration Reform, Inc. (“FAIR”) has moved to intervene as a def endant in this case. FAIR describe s itself as a “national, nonprof it, public-interest, membership organization incorporated as a public charity.” FAIR Mot. 4, §III(1). FAIR states that it represents more than 200,000 members, including more than 1,200 who reside in Dallas County, including members “domiciled in Farmers Branch.” Id. § III(2). These FAIR members who live in Farmers Branch also allegedly “own and rent property in Farmers Branch and are direct intended beneficiaries of the Ordinance.” Id. FAIR moves the court to in tervene as a matter of right, or alternatively, pursuant to permissive intervention.
Also before the court is the city of Farmer s Branch’s motions to dismiss the Barrientos Plaintiffs’ complaint. The city argues that Plaintiffs lack standing, that their claims are moot, and that Plaintiffs have failed to state claim s upon which relief can be granted. W hile some of Defendant’s arguments have been made moot by the passage of the Ordinance, the May 12, 2007 Farmers Branch election approving the Ordinance, and the Barrientos Plaintif fs’ filing of an amended complaint, the city’s arguments regarding Plaintiffs’ standing and failure to state a claim remain before the court.
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II. FAIR’s Motion to Intervene A. Legal Standards A party may intervene in a lawsuit as ofright if: (1) the intervention is timely; (2) the party
has an interest in the subject m atter of the action; (3) the disposition of t he case may impair or impede the party's ability to protect that interest; and (4) the party is not adequately represented by the existing parties. Fed. R. Civ. P. 24(a)(2).“Although failure to satisfy any one element precludes the applicant’s right to intervene, . . . the inquiryunder section (a)(2) is a flexible one, which focuses on the particular facts and circumstances surrounding each application[.]” Ross v. Marshall, 426 F.3d 745, 753 (5th Cir. 2005), cert. denied, 127 S.Ct. 1125 (2007) (internal citation and quotation omitted); see also Sierra Club v. Espy, 18 F.3d 1202, 1205 (5th Cir. 1995) (“Federal courts should allow intervention where no one would be hurt and gerater justice could be obtained.”). A party may also intervene in a lawsuit by perm ission of the court, “[u]pon tim ely application . . . when an applicant’s claim or defense and the main action have a question of law andfact in common.” Fed. R. Civ. P. 24(b)(2).
B. Analysis FAIR moved to intervene in the Vasquez case on January 26, 2007, pr ior to the court’s consolidation of the three cases on April 18, 2007. The Vasquez Plaintiffs oppose FAIR’s intervention. FAIR argues that is entitled to intervene in this action, both as a matter of right and permissively. Plaintiffs counter that FAIR’s intervention fails to meet three of the elements under Rule 24(a)(2) and that FAIR should not be allowed to permissively intervene.
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1. Intervention of Right The court considers first whether FAIR has satisfeid Rule 24(a). Neither FAIR nor Plaintiffs dispute that FAIR’s motion to intervene was timely, therefore the court considers whether the other three elements of Rule 24(a) are met. The court turns first to whether FAIR can satisfy the second elem ent under Rule 24(a), whether it has “an interest relating to the propertyor transaction which is the subject of the action.” Fed. R. Civ. P. 24(a). FAIR arguesthat its interest in this actionis “[t]he timely implementation of the Ordinance as enacted” and that “[t]he m ere existence of the Ordinance greatly benefits FAIR members.” FAIR Mot. 6 § IV(B)(1)-(2). FAIR alsoargues that if Plaintiffs are successful, “FAIR members’ fundamental property rights and local public benefits and services, as well as privileges and immunities protected by the Suprem acy Clause and the Fourteenth Am endment . . . will be infringed and im permissibly restricted.” Id. § IV(B)(3). Plaintiffs argue that FAIR’s asserted interest in this litigation is vague and fails to meet the Fifth Circuit Court of Appeal’s requirement that the proposed intervenor’s inter est is “direct, substantial [and] legally protectable.” Doe v. Glickman, 256 F.3d 371, 379 (5th Cir. 2001) (brackets in original). An intervenor’s interest must “be one which thesubstantive law recognizes as belonging to or being owned by the applicant. In addition, the intervenor should be the real party in interest regarding his claim.” Saldano v. Roach, 363 F.3d 545, 551 (5th Cir.), cert. denied, 543 U.S. 820 (2004) (internal citations and quotations omitted) (emphasis in original). The court has also noted that this requirement “is primarily a practical guide to disposing of lawsuits by involving as many apparently concerned persons as is compatible with efficiency and due process.” Espy, 18 F.3d at 1207 (quoting Ceres Gulf v. Cooper, 957 F.2d 1199, 1203 n.10 (5th Cir. 1992)).
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The court determines that FAIR lacks an interest recognized under Rule 24(a) in this action. FAIR’s interest, on behalf of its members, in the enforcement of the Ordi nance is similar to the interest alleged by putative intervenors in Johnson v. City of Dal las, 155 F.R.D. 581 (N.D. Tex. 1994). In that case, involving the constitutionality oaf n ordinances relating to the homeless, certain business associations moved to intervene after the court preliminarily enjoined enforcement of the ordinances. Id. at 583. In Johnson, the intervenors argued that the injunction of the ordinance adversely affected their business interests. Id. The court rejected the motion to intervene, however, noting that “[u]nder Movants’ conception of the interest requirement, the number of those allowed to intervene of right would be virtually unbounded. . . . Who in the whole city would not have an interest in such enforcement and therefore right to intervene under Movants’ formulation?” Id. at 584.
FAIR disputes that Johnson is analogous; it agues that it ha s a “policy interest in the litigation that is directly and substantially related to its fundamental organizational purpose, i.e. to end illegal immigration in the United States.” FAIR Reply 4. Despite FAIR’s avowed policy purposes, however, the court finds that grantingFAIR’s motion would indeed open the floodgates, as envisioned by the court in Johnson. If FAIR was allowed to inte rvene in this case, then any citizen of Farmers Branch, and even those outsidethe city, would arguably have a right to intervene in the case. Given the Fifth Circuit Court of Appeals’ description of the “interest” requirement, in part, as a “practical guide” to determining whether a party may intervene, the court determines that FAIR’s articulated interest fails to meet the second requirement of Rule 24(a).
FAIR’s proposed intervention also fails to establish the third element of Rule 24(a), that the disposition of the case may impair or impede the party's ability to protect that interest. FAIR argues
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that the stare decisis effect of the court’s decision will harm its organizational purpose of ending illegal immigration in this country. The “stare decisis effect of an adverse judgment constitutes a sufficient impairment to compel intervention,” Sierra Club v. Glickman, 82 F.3d 106, 109-110 (5th Cir. 1996) (hereinafter, “Glickman”) (citing Espy, 18 F.3d at 1207)). Where the court has found that the stare decisis effect mandated intervention, however, theinterest impaired by the court’s decision was much more specifically defined. For example, in Glickman, the court’s decision would have been precedent in suits involving exist ing contractual rights held by the intervenors. Id. at 110. Similarly, in Espy, the intervenors had existing contracts that may have been affected by the court’s decision in the case in which intervenors sought to intervene. 18 F.3d at 1206-1207.
Here, the court’s decision will be lim ited to the constitutionality and ef fect of a specific ordinance passed by one city and potentially enforceable only within its borders. While the court’s decision may be construed as precedent by other courts considering similar ordinances, there is no specific stare decisis effect of the court’s decision that will hamper FAIR’s organizational goal of ending illegal immigration. Accordingly, FAIR hasfailed to establish the third element under Rule 24(a).
Finally, the court considers whether FAIR has shown that the city of Farmers Branch will adequately represent FAIR’s interests without itsintervention. Fed. R. Civ.P. 24(a). FAIR argues that the city lacks the financial resources to defend the Ordinance, and that the lawsuit will cost the city hundreds of thousands of dollars. FAIR Mot. 7 § IV(D)(1). FAIR also alleges that the city is an inadequate representative of FAIR because FAIR’s objections are “more complex and wider in scope than those of the City itself.” Id. § IV(D)(3). FAIR also argues that an amicus brief would be insufficient to represent its inte rests. Plaintiffs argue that the city and FAIR’s interest in this
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lawsuit are identical, and that FAIR has f ailed to demonstrate that the city is an inadequate representative.
While it is true that the Fif th Circuit Cour t of Appeals has held that the showing of inadequate representation need only be “minimal,” Doe, 256 F.3d at 380, the court has also held that “representation is presumed adequate unless the applicant alleges that the representatives engaged in collusion, nonfeasance, or had aninterest antagonistic to his.” Baker v. Wade, 743 F.2d 236, 240 (5th Cir. 1984). A presum ption of adequate re presentation arises where “the party seeking intervention has the same ultimate objective as a party to the suit” and “when the representative is a governmental body or officer charged by law withrepresenting the interests of the absentee.” Id. at 240-241.
The court also notes that while FAIR contends that it cannot represent its interest by filing amicus curiae briefs with the court, in this case, as in Johnson, the “issues are primarily legal . . . [and] Movants could adequately voice whatever concerns to the Court they have by appearing a s amici rather than intervenors.” 155 F.R.D. at 586. FAIR may seek leave to file amicus briefs with the court, and the court determ ines that acting as amicus would preserve FAIR’s interest in the lawsuit without adding more parties to the case:
Additional parties always take additional time. Even if they have no witnesses of their own, they are the source of additional questions, briefs, arguments, motions and the like which tend to ma ke the proceedings a Donnybrook Fair. W here he presents no new questions, a third party can contribute usually m ost effectively and always most expeditiously by a brief amicus curiae and not by intervention. Bush v. Viterna, 740 F.2d 350, 359 (5th Cir. 1984).
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The court concludes that Defendant adequatelyrepresents the interests ofFAIR; despite any associational policy goals of FAIR, both FAIR and the city of Farmers Branch seek to uphold and enforce the specific ordinance passed by the City Council of Fa rmers Branch and potentially enforceable in Farmers Branch. While FAIR argues that the city lacks financial resources, without more, the court does not determine that this is enough to overcome the presumption that the city can defend its interests and those of its residents. The city did not respond to FAIR’s motion seeking assistance and the city’s interests certainly have been represented adequately thus far by its highly competent counsel. FAI R has not alleged any co llusion or nonfeasance, or that the city has an interest antagonistic to it. The court conclude s that FAIR is not entitled to intervene of right pursuant to Rule 24(a).
2. Permissive Intervention The court now considers whether FAIR may intervene permissively, pursuant to Rule 24(b). The rule allows permissive intervention “when an applicant’s claim or defense and the main action have a question of law and fact in common.” Fed. R. Civ. P. 24(b). “In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.” Id. Plaintiffs do not dispute that FAIR’s defenses would have a “question of law and fact in common” with the main action. The court concludes that the permissive intervention of FAIR would unduly delay this action and that the city can adequately defend the Ordinance and address the pertinent legal issues before the court. InIngebretsen v. Jackson Public School Distric,tthe court held that “denial ofpermissive intervention was also appropriate because the Proposed Intervenors bring no new issues to the action.” 88 F.3d 274, 281 (5th Cir.), cert. denied, 519 U.S. 965 (1996). The court concludes that
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such a result is warranted here, where it is unlikel y that FAIR will bring additional issues to the litigation. Moreover, the addition of FAIR will unnecessarily delay the proceedings and multiply the filings and time required by the court to consider this case. Where intervention would “unduly delay the proceedings,” Kneeland v. Nat’l Collegiate Athletic Ass’n, 806 F.2d 1285, 1289 (5th Cir.), cert. denied, 484 U.S. 817 (1987), denying a m otion for permissive intervention is a ppropriate. Accordingly, the court concludes that FAIR may not permissively intervene in this case anddenies FAIR’s motion to intervene. III. Barrientos Plaintiffs’ Motion for Leave to File Amended Complaint
The Barrientos Plaintiffs filed a motion for leave to file an amended complaint on May 23, 2007. The Barrientos Plaintiffs had filed their First Am ended Complaint on May 22, 2007. Plaintiffs are entitled pursuant to Rule 15(a) to amend once as a matter of course before a responsive pleading is served and their First Amended Complaint was filed before any answer by Defendant. Accordingly, their motion is granted. IV. Motion to Dismiss Barrientos Plaintiffs’ Complaint
A. Legal Standards 1. Rule 12(b)(1) – Dismissal for Lack of Standing
Federal courts are courts of limited jurisdiction, and “have only the power that is authorized by Article III of the Constitution and statutes enacted by Congress pursuant thereto.” Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986). “Article III of the Constitution confines the federal courts to adjudicating actual ‘cases’ and ‘controversies.’” Allen v. Wright, 468 U.S. 737, 750 (1984). Because the question of standing implicates the court's subject matter jurisdiction, that is, the court's statutory or constitutional power to adjudicate a claim or dispute, see Steel Co. v.
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Citizens for a Better Env't., 523 U.S. 83, 89 (1998); Allen, 468 U.S. at 751, the court applies the standards for a motion to dismiss pursuant to Rule 12(b)(1).
A motion to dism iss filed under Rule 12(b)(1) of the Federal Rules of Civil Procedure challenges the subject matter jurisdiction of a federal district court.See Fed. R. Civ. P. 12(b)(1). A claim is properly dismissed for lack of subject matter jurisdiction when the court lacks the statutory or constitutional power to adjudicate the claim. See Home Builders Assoc., Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998). Federal courts are courts of limited jurisdiction, and absent jurisdiction conferred by statute, they lack the power to adjudicate cl aims. See e.g., Stockman v. Federal Election Comm’n, 138 F.3d 144, 151 (5th Cir. 1998) (citing Veldhoen v. United States Coast Guard, 35 F.3d 222, 225 (5th Cir. 1994)). Thus, a federal court m ust dismiss an action whenever it appears that subject matter jurisdiction is lacking. Stockman, 138 F.3d at 151.
In considering a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction, “a court may evaluate (1) the com plaint alone, (2) the com plaint supplemented by undisputed facts evidenced in the record, or (3) the com plaint supplemented by undisputed facts plus the court’s resolution of disputed facts.”Den Norske Stats Oljeselskap As v. HeereMac Vo,f 241 F.3d 420, 424 (5th Cir.), cert. denied, 122 S.Ct. 1059 (2002);see also Ynclan v. Dep’t of Air Force, 943 F.2d 1388, 1390 (5th Cir. 1991). Thus, unlike a Rule 12(b)(6) motion to dismiss for failure to state a claim, the district court is entitled to consider disputedfacts as well as undisputed facts in the recordS.ee Clark v. Tarrant County, 798 F.2d 736, 741 (5th Cir. 1986). Uncontroverted allegations of the complaint, however, must be accepted as true. Den Norske Stats Oljeselskap As, 241 F.3d at 424.
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2. Rule 12(b)(6) - Dismissal for Failure to State a Claim A motion to dismiss for failure to state a clami under Fed. R. Civ. P. 12(b)(6) “is viewed with disfavor and is rarely granted.”Lowrey v. Texas A&M Univ. Sys,.117 F.3d 242, 247 (5th Cir. 1997). A district court cannot dismiss a complaint, or any part of it, for failure to state a claimupon which relief can be granted “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Blackburn v. City of Marshall, 42 F.3d 925, 931 (5th Cir. 1995). Stated another way, “[a] court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.” Swierkiewicz v. Sorema, 534 U.S. 506, 514 (2002) (quoting Hishon v. King & Spalding, 467 U.S. 69, 73 (1984)). Inreviewing a Rule 12(b)(6) motion, the court must accept all well-pleaded facts in the complaint as true and view them in the light most favorable to the plaintiff. Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996). In ruling on such a motion, the court cannot look beyond the pleadings. Id.; Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir. 1999), cert. denied, 530 U.S. 1229 (2000). The pleadings include the complaint and any documents attached to it. Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498-99 (5th Cir. 2000). Likewise, “‘[d]ocum ents that a defendant attaches to a m otion to dismi ss are considered part of the pleadings ifthey are referred to in the plaintiffs' complaint and are central to [the plaintiff’s] claims.’” Id. (quoting Venture Assocs. Corp. v. Zenith Data Sys. Corp., 987 F.2d 429, 431 (7th Cir. 1993)). The ultimate question in a Rule 12(b)(6) motion is whether the complaint states a valid cause of action when it is viewed in the light most favorable to the plaintiff and with every doubt resolved in favor of the plaintiff. Lowrey, 117 F.3d at 247. A court, however, is not to strain t o find
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inferences favorable to the plaintiff and is not to accept co nclusory allegations, unwarranted deductions or legal conclusions . R2 Invs. LDC v. Phillips , 401 F.3d 638, 642 (5 th Cir. 2005) (citations omitted). The court does not evaluate the plaintiff’s likelihood of success; instead, it only determines whether the plaintiff has a legally cognizable claim . United States ex rel. Riley v. St. Luke’s Episcopal Hosp., 355 F.3d 370, 376 (5th Cir. 2004).
B. Analysis The city moved to dismiss the Barrientos Complaint arguing that the allegations regarding repealed Ordinance 2892 are moot, that Plaintiffs lack standing, and that Plaintiffs have failed to state a claim upon which relief can be granted. The Barrientos Plaintiffs subsequently filed their First Amended Complaint on May 22, 2007, alleging claims based upon Ordinance 2903. The court first considers whether Defendant’smotion should be denied as moot because the Barrientos Plaintiffs have filed an amended complaint. As Wright, Miller, and Kane have noted:
Defendants should not be required to file a new m otion to dismiss simply because an am ended pleading was introduced while their motion was pending. If som e of the defects raised in the original motion remain in the new pleading, the court m ay simply consider the motion as being addressed to the amended pleading. . . . To hold otherwise would be to exalt form over substance. Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Fed. Prac. & Proc. § 1476. Defendant appears to consider its motion pending, as it filed its reply after the Barrientos Plaintiffs filed their First Amended Complaint. The issue of standing equally applies whether the court considers the original Complaint or the First Am ended Complaint. Theref ore, the court considers the city’s motion in light of the live pleading, the Barrientos Plaintiffs’ First Amended Complaint.
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1. Mootness The city argued that the Barrientos Complaint was moot because the Complaint was based upon Ordinance 2892, which was repealed by the Fa rmers Branch City Council. The city also argued that any claim s based upon Ordinance 2903 were moot because the Com plaint and the motion to dismiss were filed prior to the May12, 2007 election on Ordinance 2903. Plaintiffs’ First Amended Complaint is not moot for these reasons. The First Amended Complaint bases its claims upon Ordinance 2903, and the May 12, 2007 election has occurred. Accordingly, the Barrientos Plaintiffs’ First Amended Complaint is not moot for the reasons articulated by the city in its motion to dismiss.
2. Standing The city also moved to dismiss the Barrientos Complaint because Plaintiffs lack standing to assert their claims. Defendant argues that Plaintiffs cannot rest their standing on the legal rights of third parties, that any dam age to Plaintiffs is entirely speculative, and that they cannot show the requisite causation of any injury. While the city’s argument initially was based in part on the fact that Plaintiffs’ claims were based on Ordinance 2892, the court determ ines that the city has als o raised the question of whether these plaintiffs have standing to assert claims because they are not subject to either Ordinance 2892 or Ordinance 2903.Regardless of whether the issue is made moot by the filing of the First Am ended Complaint, however, the court m ay consider the Plaintiffs’ standing sua sponte. Bauer v. Texas, 341 F.3d 352, 357 (5th Cir. 2003). “The three elem ents of Article III standing are: 1) injury, 2) causation, and 3) redressability.” Bauer, 341 F.3d at 357. Defendant argues that the Barrientos Plaintiffs cannot show either injury or causation.
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Plaintiffs “operate retail businesses in Farmers Branch.” Barrientos First Am. Compl. ¶ 33. Plaintiffs do not allege that they are tenants or property owners or m anagers in Farmers Branch. Plaintiffs allege that they “have sufered loss of business, and unless and until such controversy and the rights and legal relations of the parties are judcially determined, adjudicated and declared in this action, Plaintiffs will continue to suffer business losses until they fail com pletely.” Id. ¶ 3. Plaintiffs contend that the Ordinance affects their businesses by “remov[ing]” and “frighten[ing]” their “immigrant clientele” out of Farmers Branch. Id. ¶ 36. Plaintiffs allege that their “businesses are doomed to fail, but not from anything they did or controlled. . . . Plaintiffs also face the risk of immigration status review with the clause within the New Ordinance that allows the extension of the New Ordinance t o other property rights, which would included com mercial leases.” Id. Plaintiffs allege violation of the Supremacy Clause, Equal Protection, procedural due process, and 42 USC § 1981.
a. Injury Defendant argues that the Barrientos Plaintiffs cannot be injured by the enforcement of the Ordinance because their claims rest upon the legal rights of third parties. “A party has standing to challenge the constitutionality ofa statute only insofar as it has an adverse impact on his own rights. As a general rule, if there is no constitutional defect in the application of a statute to a litigant, he does not have standing to argue that it would be unconstitutional if applied to third parties in hypothetical situations.” County Court of Ulster County, New York v. Allen, 442 U.S. 140, 154-155 (1979). Defendant argues that as business owners in Farmers Branch, Plaintiffs lack standing to argue that the Ordinance is unconsti tutional because the Ordinance will not be applied to them .
Memorandum Opinion and Order – Page 14

Case 3:06-cv-02371-L Document 101 Filed 06/01/07 Page 15 of 18 PageID 1268
Plaintiffs respond that their businesses have been injured and will continue to face injury, and that the Ordinance may be expanded to include commercial leases.
Plaintiffs cite several cases in support of their argument that they have standing. The court finds, however, that these c ases actually support th e conclusion that Plaintiffs lack standing. In Lujan v. Defenders of Wildlife, the Supreme Court concluded that plaintiffs lacked standing, noting that “when the plaintiff is not himself the object of the government action or inaction he challenges, standing is not precluded, but it is ordinarily substnatially more difficult to establish.” 504 U.S. 555, 562 (1992). Plaintiffs also rely upon and attem pt to distinguish Warth v. Seldin, 422 U.S. 490 (1975). In that case, the Court held that none of the plaintiffs had standing to assert claims based upon a zoning ordinance that allegedly excluded certain lower-income individuals from living in a town. Id. at 493. In Northeastern Florida Chapter of the Associated Gene ral Contractors of America v. City of Jacksonville, Florida , relied upon by Plaintiffs, the contractor plaintiffs were found to have standing to challenge an ordinance that allowed preferential treatment in the award of city contracts to minority-owned businesses. 508 U.S. 656, 658 (1993). In that case, the actual application of the ordinance could have caused a direct harm to plaintiffs because it related to city contracts they sought. Id. at 666. Finally, Pierce v. Society of the Sisters of the Holy Names, 268 U.S. 510 (1925), is also distinguishable. In th at case, plaintiffs, private schools, obtained an injunction to prevent the state of Oregon from enforcing a law that would have required parents to send their children to public schools. Id. at 529-530. As in Northeastern Florida, the plaintiffs in Pierce were directly affected by the challenged law.
The court determines that the Barrientos Plaintiffs have failed to establish an injury pursuant to Article III. First, the Ordinance potentially affects onl y tenants and property owners and
Memorandum Opinion and Order – Page 15

Case 3:06-cv-02371-L Document 101 Filed 06/01/07 Page 16 of 18 PageID 1269
managers of certain apartm ent complexes in Farmers Branch. Any injury to the Barrientos Plaintiffs’ businesses or any future expansion ofthe Ordinance are injuries that are too hypothetical or speculative to allow for their standing to challenge the Ordinance. To have standing, plaintiffs must show that they “have suffered an injury in fact– an invasion of a legally protected interest which is (a) concrete and particularized and (ba)ctual or imminent, not conjectural or hypothetical.” Cole v. General Motors Corp ., ___ F.3d ___, 2007 W L 1054697, *4 (5th Cir. Apr. 10, 2007) (internal quotations omitted) (quoting Lujan, 504 U.S. at 560). Here, the Ordinance does not have any direct effect on the Barrientos Plaintiffs; its application to te nants and property owners and managers may have some tangential effect on their businesses. “Federal courts consistently deny standing when claim ed anticipated injury has not been shown to be m ore than uncertain potentiality.” Prestage Farms, Inc. v. Board of Sup’rs of Noxubee County, Mississippi, 205 F.3d 265, 268 (5th Cir. 2000).
b. Causation Even if the Barrientos Plaintiffs have alleged an injury sufficient for Article III standing, they have failed to establish the requisite causal nexus between the Ordinance and their alleged injury. Defendant argues that Plaintiffs’ injuries are entirely speculative, and that any l oss to their businesses could have alternative causes, including groups calling for the boycott of Farmers Branch businesses, the qualities of goods and services providdeby Plaintiffs, Plaintiffs’ management of their businesses, or other unrelated economic issues. Def.’s Mot. 5 n.2. Plaintiffs do not separately address the causation requirement in their response. Plaintiffs must draw “the line of causation between [defendant’s] actions and [plaintiffs’] injury.” Warth, 422 U.S. at 509. The court concludes that the Barrientos Plaintiffs have failed to
Memorandum Opinion and Order – Page 16

Case 3:06-cv-02371-L Document 101 Filed 06/01/07 Page 17 of 18 PageID 1270
draw such a line. W hile their First Am ended Complaint does allege that the Ordinance has frightened their clients away from Farmers Branch, and alleges that the Ordinance m ay be subsequently expanded to affect commercial leases, the court does not see the causal nexus between an Ordinance that affects landlord-tenant relationships and Plaintiffs’ business success in Farmers Branch. Accordingly, because the Barrientos Plaintiffs lack standing, the courtgrants Defendant’s motion to dismiss, and does not consider the other arguments raised by the city. V. Other Motions
The Villas Plaintiffs filed an unopposed motion to enlarge time to respond to Defendant’s motion to dismiss. The court grants this motion. Plaintiffs sought leave to file their response by April 24, 2007, and filed their response on that date. Accordingly, their response is deemed timely filed.
The Barrientos Plaintiffs seek leave to file an am ended application for injunct ive relief. Because the court has granted Defendant’s motion to dismiss their complaint, this motion for leave is denied as moot.
Finally, attorney Katharine J. Caplan moves to withdraw as counsel of record on behalf of the Vasquez Plaintiffs because she has left the lwa firm of Weil, Gotshal & Manges LLP. The court grants the motion to withdraw as counsel and Katharine J. Caplan is relieved of any responsibility to the Vasquez Plaintiffs in this action. VI. Conclusion
For the reasons stated herein, the court denies Motion of Federation of Am erican Immigration Reform, Inc. for Leave to Intervene as Defendant and t o File an Answer, grants [Barrientos] Plaintiffs’ Motion for Leave to File Amended Complaint, grants Defendant City of
Memorandum Opinion and Order – Page 17

Case 3:06-cv-02371-L Document 101 Filed 06/01/07 Page 18 of 18 PageID 1271 Farmers Branch’s Rule 12(b)(1) and 12(b)(6) Motion to Dism iss, grants [Villas] Plaintiffs’ Unopposed Motion to Enlarge Time to Respond to Defendant’s Motion to Dismiss, denies as moot [Barrientos] Plaintiffs’ Motion for Leave to Amend Application for Injunctive Relief, and grants Motion to Withdraw as Counsel.
It is so ordered this 1st day of June, 2007. _________________________________ Sam A. Lindsay United States District Judge
Memorandum Opinion and Order – Page 18

 
 IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS DALLAS DIVISION

VILLAS AT PARKSIDE PARTNERS d/b/a VILLAS AT PARKSIDE, et al.,
Plaintiffs, v. THE CITY OF FARMERS BRANCH,
Defendant.

§ § § § § § Civil Action No. 3:06-CV-2371-L § (consolidated with CA No. 3:06-CV-2376-L § and CA No. 3:07-CV-0061-L) § §

MEMORANDUM OPINION AND ORDER

Before the court are: (1) De fendant’s Motion for Summary Judgment, filed February 22,

2008; and (2) Vasquez Plaintiffs’1 Motion for Certification of Partial Final Judgment Pursuant to

Federal Rule of Civil Procedure 54(b), filed June6, 2008. After carefully considering the motions,

briefs, record, and applicable law, the courtdenies Defendant’s Motion for Summary Judgment and

denies Vasquez Plaintiffs’ Motion for Certification of Partial Final Judgment Pursuant to Federal

Rule of Civil Procedure 54(b).

I. Procedural History

The City of Farmers Branch adopted Ordinance 2903 (the “Ordinance”) on January 22, 2007.

The Ordinance was the second iteration of a law originally adopted by t he City Council on

November 13, 2006, Ordinance 2892. Astate court issued a temporary restraining order enjoining

implementation of Ordinance 2892 on January 9, 2007f,inding that it “may have been approved and

adopted in violation of t he Texas Open Meeti ngs Act.” Thereafter, the City Council repealed

1The Villas Plaintiffs are the owners and operators of apartment complexes in Farmers Branch. The Vasquez Plaintiffs include residents of apartment complexes in Farmers Branch as well as the owners and managers of apartment complexes in the city.
Memorandum Opinion and Order – Page 1

Ordinance 2892 and adopted the Ordinance. The Ordniance called for an election to allow the voters of Farmers Branch to vote for or against it. Ordinance (hereinafter, “Ord.”) § 5.
On May 12, 2007, the voters of Farme rs Branch approved the Ordinance by a m argin of 4,058 “for,” and 1,941 “against.” The Ordinance was to go into effect May 22, 2007. Id. § 7. On May 21, 2007, however, the court granted Plaintiffs’ applications for temporary restraining order, temporarily enjoining the enforcement of the Ordinance and preventing the Ordinance from going into effect. See Mem. Op. and Order Granting TRO (May21, 2007). The court held a preliminary injunction hearing on J une 5, 2007, extended the te mporary restraining order with the parties’ consent until June 19, 2007, and granted Plaintiffs’requests for a preliminary injunction on June 19, 2007.
The court held a telephone conf erence with the parties on July 31, 2007. Af ter representations from the parties, the court issued an order allowing Defendant to file a motion “on the issue of damages and whether the Villas Plaintiffs are entitled to compensatory damages based upon the circumstances of this case.” Order (July 312, 007). The city then ifled a motion to dismiss the Villas Plaintiffs’ claims for compensatory damages. On December 11, 2007, the court granted the motion and dismissed with prejudice the claims for compensatory damages.2
The court then issued an order allowing the pa rties to file dispositive motions. The order stated: “in a prior telephonic conference with the court, the parties all acknowledged that only legal issues remain in this case and there are no factual disputes to resolve.” Order (Dec. 27, 2007). Plaintiffs filed a joint motion for partial summary judgment, seeking the entry of judgment on their claims that the Ordinance is preempted by federal law and that the Ordinance violates the Due
2The Villas Plaintiffs requested monetary damages only in their claims made pursuant to 42 U.S.C. §§ 1981 and 1983. The Vasquez Plaintiffs did not request monetary damages. Memorandum Opinion and Order – Page 2

Process Clause of the Fourteenth Amendment to the United States Constitution. Defendant filed a
motion for summary judgment on all of Plaintiffs’ claims.
On May 28, 2008, the court denied Defendant’s Motion for Leave to File Defendant’s
Original Counterclaim for Declaratory Judgment. Defendant asked the court to allow it to file a
counterclaim seeking a declaration that City of Farm ers Branch Ordinance 2952 (the “New
Ordinance”) is constitutional and will be enforceable. The New Ordinance, which the City passed
on January 22, 2008, becom es effective “on the 15t h day af ter the date on which a f inal and
appealable judgment is rendered by” the court in this c ase. New Ord. § 7. The court denied
Defendant leave to file its counterclaim, finding that Defendant sought an advisory opinion and its
request was premature. The court also held that the legal issues raised by the New Ordinance are
distinct from the issues involved in this case and the proposed pleading would therefore bear little
relationship to the pending claims.3
3The court held:
While it appears that both ordinances are aim ed at regulating the occupation of rental properties in the City of Farmers Branch by persons not lawfully present in this country, there are substantial differences between them. The Ordinance puts a burden on landlords to determine the immigration status of their tenants; the New Ordinance requires involvement by the city’s building inspector and the federal government. The New Ordinance creates a new license that must be obtained by every tenant of a s ingle-family residence or apartment in the city; the Ordinance applies only to certain m ulti-unit apartment buildings. The Ordinance defines certain terms by refe rence to regulations prom ulgated by the United States Department of Housing and Urban Development; the New Ordinance relies upon the federal government to make the determination whether an individual islawfully present in the United States. These diffe rences will require, to a large extent, an entirely different legal analysis than that already conducted by the court with respect to the constitutionality of the Ordinance as applied to Plaintiffs.
Mem. Order and Op. (May 28, 2008) (doc. 152), 9. The court is un likely to entertain any attem pt to piggyback challenges to the New Ordinance onto thislitigation, given its view that the legal issues aredistinct and therefore fodder for a separate lawsuit.
Memorandum Opinion and Order – Page 3

On the same day, the court granted Plainti ffs’ motion for partial s ummary judgment, but deferred ruling on Defendant’ s motion for sum mary judgment. The court issued a perm anent injunction that perm anently enjoins and prohib its Defendant from “ effectuating or enforcing Ordinance 2903.” Mem. Op. and Order Granting Permanent Inj. (May 28, 2008), 35. The court thereafter held a telephone conference with the parties regarding whether it was appropriate to enter judgment. The parties disagreed, and the court allowed the parties to brief the issue of “Plaintiffs’ remaining claims and whether it is appropriate to enter judgm ent in this case.” Order (May 29, 2008).
The Vasquez Plaintiffs subsequently filed their motion to certify a partial final judgm ent pursuant to Rule 54(b) of the Federal Rules of Civil Procedure. The Villas Plaintiffs filed a brief opposing the entry of final judgment. Defendant filed its brief supporting the entry of final judgment on all claims. The court now considers these three positions and determines whether the entry of final judgment is appropriate. II. Motion for Certification of Partial Final Judgment
A. Parties’ Contentions The Vasquez Plaintiffs argue that the court hsould enter partial final judgment on their claims that the Ordinance is preem pted and that it viol ates the Due Process Clause of the Fourteenth Amendment and preserve jurisdiction over their remaining claims.4 They ask the court to certify a partial final judgment pursuant to Rul e 54(b) because the adjudicated claim s are distinguishable
4The Vasquez Plaintiffs’ remaining claims include violation of the Equal Protection Clause of the Fourteenth Amendment, the Contracts Clause, and the First Amendment to the United States Constitution, and violationsof the Fair Housing Act, 42 U.S.C. § 3601 et seq., and 42 U.S.C. § 1981. See First Am. Compl. for Decl. and Inj. Relief (Mar. 22, 2007). They also contend that there are some claims regarding violation of the Due Process Clause of the Fourteenth Amendment that remain unadjudicated. Memorandum Opinion and Order – Page 4

from their remaining claims and there is no reason to delay entry of a partial final judgment. They
also argue that reserving jurisdiction over the re maining claims will allow the court to preserve
judicial resources while allowing Plaintiffs the opportunity to litigate their claims expeditiously.
The Villas Plaintiffs oppose ent ry of a partial final judgm ent. They contend that the remaining claims5 are still in dispute and may provide additional relief and that all claims should be
adjudicated before judgm ent is entered to a void piecemeal litigation. They argue that their
remaining claims are not m oot. Specifically, they contend that Defendant ha s an “ongoing,
discriminatory scheme to adopt unconstitutional licensing laws . . . to adversely affect” them. Villas
Pls.’ Brief 2. T hey argue that this scheme will not b e addressed unless the court “retains
jurisdiction, declares such efforts as unconstitutional violations of the Equal Protection Clause, and
issues appropriate declaratory and equitable relief.” Id. at 3. They contend that a live controversy exists because Defendant has adopted another ordinance. 6 They also argue that the court has the
power to issue additi onal remedial orders regarding their claims that Defendant has violated the
Equal Protection Clause of the Fourteenth Amendment and section 1981 and that they will ask the
court to:
(1) declar[e] that the City adopted Ordinance 2903 for the unlawful purpose of discriminating against Hispanics; (2) enjoin[] t he City from enacting, effectuating, or enforcing any lease-related licensing ordinances [that] address citizenship or immigration status without making, recording, and retaining factual findings concerning the problem to be resolved and consideirng available alternatives; and (3) requir[e] the City to take af firmative steps to rem edy past
5The Villas Plaintiffs also assert claims pursuant to 42 U.S.C. § 1981 and for violation of the Equal Protection Clause of the Fourteenth Amendment, 42 U.S.C. § 1983, and Section 214.903 of the Texas Local Government Code. See Second Am. Compl. (Mar. 9, 2007).
6The Villas Plaintiffs opposed Defendant’s motion to file a counterclaim seeking a declaratory judgment on Ordinance 2952. Memorandum Opinion and Order – Page 5

discrimination, such as publishing statem ents in a newspaper or newspapers of general circulation, and on its official website, that Farmers Branch welcom es minority – and especially Hispani c – renters. Id. at 4-5. Finally, they argue that considering a ll of Plaintiffs’ claims will allow for a complete factual record for appeal and will protect them if the injunction is overturned. They contend that there is no prejudice to Defendant because it m ay seek an interlocutory appeal of the court’s permanent injunction. The City of Fa rmers Branch argues that fi nal judgment on all of Plaintiffs’ claim s is appropriate because they have been awarded all the relief sought in their pleadings. It contends that Plaintiffs have waived their additional theories of relief because they did not m ove for summary judgment on the unadjudicated claims and that they should not be entitled to piecemeal resolution of their claims by filing seriatim summary judgment motions. Defendant also argues that Plaintiffs have been awarded all relief they sought in their complaints, that is: a declaration that the Ordinance is unconstitutional; a permanent injunction against the enforcement of the Ordinance; and costs and attorney’s fees. The City argues that the additional relief outlined in the Villas Plaintiffs’ brief can be found nowhere in their pleadings. It contendsthat evaluation of the remaining claims will only increase the parties’ expenses and waste judicial resources with no practical effect or additional relief. Defendant also asks the court to decline supplemental jurisdiction over the Villas Plaintiffs’ state law claim for violation of section 214.903 of the Texas Local Government Code. The City also opposes the certification of a partial final judgment pursuant to Rule 54(b). It contends that the remaining claims are not “distinct and severable” because they seek the same relief that has already been grantedby the court. Accordingly, the City asks the court to enter a final judgment on all claims.
Memorandum Opinion and Order – Page 6

B. Analysis The court has reviewed Plaintiffs’ pleadings, the parties’ arguments, and the case law cited by the parties and determines that the entry of final judgment is appropriate. The court ordered the parties to file dispositive m otions based upon their representations that once the cl aims for compensatory damages had been removed from the case only legal issues remained. The court has awarded all ofthe reliefthat was requested in Palintiffs’ complaints, except compensatory damages, and the additional time and resources required to consider the rem aining claims are unwarranted given the court’s entry of a perm anent injunction prohibiting the effectuation or enforcem ent of Ordinance 2903 and declaration that the Ordinance is unconstitutional. Plaintiffs made a strategic decision to move for partial summary judgment in light of the court’s order setting a dispositive motions deadline. The local rules of the court limit a party to a single summary judgment motion. See Local Rule 56.2. Plaintiffs elected to file a partial motion for summary judgment to address only those clai ms that the court had already ruled upon; the decision was theirs. Defendant, on the other handm, oved for summary judgment on all of Plaintiffs’ claims. I n light of the ruling the court m akes herein, it determ ines that additional disposit ive motions and discovery are unnecessary. Even if the court were to allow Plaintiffs to litigate their remaining claims, there is simply no reason to expend the resources of the parties or the court when Plaintiffs have been, or will be, granted all relief to which they are legally entitled. The Villas Plaintiffs’ prayer for relief in their live pleading includes none of the remedial relief they contend the court should now grant. 7 The

7The Villas Plaintiffs requested:

1.

A declaration invaliding the . . . Ordinance as unconstitutional and otherwise contrary to applicable

federal and state law;

Memorandum Opinion and Order – Page 7

Vasquez Plaintiffs also do not seek relie f beyond that the court has already ordered. 8 The Villas
Plaintiffs point to their sixth request, a catch-all request for “[a]ny other relief . . . which this Court
deems just and proper.” They argue that theircomplaint addresses Ordinance 2892 and a resolution
regarding the use of the English language. They contend that they will request a declaration that the
Ordinance was adopted for the unlawful purpose ofdiscriminating against Hispanics and remedial
relief for past discrimination.
These requests can be found nowhere in their pleadings, and while their complaint refers to
other actions of the Farm ers Branch City Council, it is without cavil that their request for relief
focuses exclusively upon relief relating to the Ordinance. The court held:
Because Farmers Branch has attem pted to regulate im migration differently from the federal government, the Ordinance is preempted by the Supremacy Clause. The city’sattempts to save the Ordinance fail because the proposed revisions would require the court to engage in the legi slative function of redrafting the Ordinance. Even if

2.

A permanent injunction prohibiting the enforcement or threatened enforcement of the . . . Ordinance;

3.

An award of money damages;

4.

An award of reasonable attorneys’ fees pursuan t to 42 U.S.C. § 198 8(b) and any other applicable

statute;

5.

Costs of Court; and

6.

Any other relief, at law or in equity, to which plaintiffs may be entitled and which this Court deems

just and proper.

Pls.’ Second Amend. Compl. (Mar. 9, 2007), 22.

8The Vasquez Plaintiffs requested:

(i)

A declaratory judgment pursuant to 28 U.S.C.§§ 2291 and 2202 declaring the Ordinance void because

it violates numerous provisions of the United States Constitution and various other federal laws as set

forth herein;

(ii) A temporary restraining order and a preliminary and/or permanent injunction pursuant to Fed. R. Civ.

P. 65 prohibiting Defendant and its officials, employees and agents from implementing or enforcing

the Ordinance;

(iii) An order awarding plaintiffs costs andattorneys’ fees, pursuant to the statutes cited herein, 42 U.S.C.

§ 1988, and any other applicable law;

(iv) Such other and further relief as this court deems just and proper.

First Amend. Compl. for Decl. and Inj. Relief (March 22, 2007), 15-16.

Memorandum Opinion and Order – Page 8

sections or phrases of the Ordinance could be severed, the Ordinance would suffer from the same– if not worse– vagueness problems. Mem. Op. and Order Granting Permanent Inj., 34. The court went on to “order[] that the City of Farmers Branch, Texas, and its officers, agentss, ervants, employees, representatives, and attorneys, are hereby permanently enjoined and prohibited from effectuating or enforcing Ordinance 2903.” Id. at 35 (original emphasis). The court has declared the Ordinance unconstitutional and perm anently enjoined its effectuation and enforcement. While the court has not awarded costs or attorney’s fees, Plaintiffs are entitled to m ake an application for attorney’s fees postjudgment pursuant to Rule 54 of the Federal Rules of Civil Procedure, and the court will address costs in its judgm ent. While both groups of Plaintiffs have included a catch-all request for relief, there is no specific relief requested that has not been awarded, except the Villas Plaintiffs’ claims for compensatory damages, which the court rejected. In other words, all reliefto which Plaintiffs are entitled has been granted, or will be addressed as earlier stated in this paragraph. Accordingly, the court determines that it is not required to allow Plaintiffs to litigate their remaining claims. See Wilton v. Seven Falls Co., 515 U.S. 277, 288 (“In the declaratory judgment context, the normal principle that federal courts should adjudicate claims within their jurisdiction yields to considerations of practicality and wise judicial adm inistration.”); Sherwin-Williams Co. v. Holmes County, 343 F.3d 383, 389 (5th Cir. 2003) (“The Declaratory Judgm ent Act has been understood to confer on federal courts unique a nd substantial discretion in deciding whether to declare the rights of litigants.”) (quoting Wilton, 515 U.S. at 286)). Plaintiffs have not pointed to any authority to support their contention that theyare entitled to litigate eachand every claim after a declaration that the Ordinance is unconstitutional and a permanent injunction.
Memorandum Opinion and Order – Page 9

Accordingly, the court determines that the remaining claims are moot given the reliefalready awarded by the court. Rather than waste the resoucres of the parties and the court, dismissing these claims without prejudice is t he most efficient and practical use of judicial resources. Entering judgment now is appropriate because the relie f sought has been awarded, denied, or will be addressed in the judgm ent or postjudgment. Of c ourse, if this court’s ruling is re versed by an appellate court, Plaintiffs have suffered no legapl rejudice because they will be able to proceed under their other theories. Accordingly, because the coutr determines that the remaining claims are moot, the court dismisses without prejudice all of Plaintiffs’ remaining claims. III. Motion for Summary Judgment
Defendant moved for summary judgment on all of Plaintiffs’ claim s. Because t he court granted summary judgment to Plaintiffs on their claims that the Ordinance is preempted and that it violates the Due Process Clause of the Fourteenth Amendment, it would be legally inconsistent for the court to also find that Defendant is entitled to summary judgment on these claims. Moreover, by ruling as it has, the court necessarily has concluded that Defendant is not entitled to summary judgment on these claim s. Accordingly, the court denies Defendant’s request for sum mary judgment as to these claims. The court denies as moot Defendant’s motion as to the rem aining claims because they seek the same relief that has already been awarded by the court. IV. Villas Plaintiffs’ State Claim
In the alternative, the court considers whether to exercise supplemental jurisdiction over the sole state claim, the Villas Plaintiffs’ claim that Defendant violated section 214.903 of the Texas Local Government Code. There are no rem aining federal causes of action. The court had jurisdiction over the Villas Plaintiffs’ state law claim only through supplem ental jurisdiction
Memorandum Opinion and Order – Page 10

pursuant to 28 U.S.C. § 1367(a). Now that the federal law claims, the only claims over which the court had original jurisdiction, have been dismissed, the court has discretion whether to retain the remaining state law claim. 28 U.S.C. § 1367(c)(3); Priester v. Lowndes County, 354 F.3d 414, 425 (5th Cir. 2004). The relevant considerations are “judicial economy, convenience, fairness, a nd comity.” Batiste v. Island Records, Inc., 179 F.3d 217, 227 (5th Cir. 1999), cert. denied, 528 U.S. 1076 (2000). The strongest consideration here is thatstate courts are more familiar with, and better equipped to address, the rem aining state law cau se of action. The court therefore exercises its discretion and declines to exercise supplemental jurisdiction over the remaining state law claim. Accordingly, the court dismisses without prejudice the Villas Plaintiffs’ state law claim of violation of section 214.903 of the Texas Local Government Code. V. Conclusion
For the reasons stated herein, the courtdenies Defendant’s Motion for Summary Judgment and denies Vasquez Plaintiffs’ Motion for Certification of Partial Final Judgm ent Pursuant to Federal Rule of Civil Procedure 54(b). The courdtismisses without prejudice Plaintiffs’ remaining claims. In the alternative, the court declines to exercise supplemental jurisdiction over the Villas Plaintiffs’ state law claim and dismisses it without prejudice. Judgment will issue by separate document as required by Rule 58 of the Federal Rules of Civil Procedure.
It is so ordered this 29th day of August, 2008.
_________________________________ Sam A. Lindsay United States District Judge
Memorandum Opinion and Order – Page 11

 
 Case: 3:06-cv-2371 As of: 04/19/2017 04:06 PM CDT 1 of 39
CLOSED,JURY,LEAD,SANDERSON
U.S. District Court Northern District of Texas (Dallas) CIVIL DOCKET FOR CASE #: 3:06−cv−02371−L

Villas at Parkside Partners et al v. The City of Farmers Branch Texas et al Assigned to: Judge Sam A Lindsay Cause: 28:1343 Violation of Civil Rights
Plaintiff

Date Filed: 12/22/2006 Date Terminated: 08/29/2008 Jury Demand: Plaintiff Nature of Suit: 950 Other Statutes: Constitutionality of State Statutes Jurisdiction: Federal Question

Villas at Parkside Partners doing business as Villas at Parkside

represented by William A Brewer , III Brewer, Attorneys & Counselors 750 Lexington Avenue, 14th Floor New York, NY 10022 212−489−1400 Fax: 212−751−2849 Email: wab@brewerattorneys.com LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

C Dunham Biles Lewis Brisbois Bisgaard & Smith LLP 2100 Ross Avenue Suite 2000 Dallas, TX 75201 214/722−7100 Fax: 214/722−7111 Email: dunham.biles@lewisbrisbois.com ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

James S Renard Bickel & Brewer 1717 Main St Suite 4800 Dallas, TX 75201 214/653−4000 Email: jsr@bickelbrewer.com ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

Michael S Gardner Gardner Haas PLLC 2828 Routh Street, Suite 660 Dallas, TX 75201 214−415−3473 Fax: 214−217−2800 Email: mg@gardnerhaas.com ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

Michael L Smith Brewer, Attorneys & Counselors 750 Lexington Avenue, 14th Floor New York, NY 10022 212−489−1400 Fax: 212−751−2849 Email: mls@brewerattorneys.com ATTORNEY TO BE NOTICED

Case: 3:06-cv-2371 As of: 04/19/2017 04:06 PM CDT 2 of 39

Bar Status: Admitted/In Good Standing

Plaintiff
Lakeview at Parkside Partners Ltd doing business as Lakeview at Parkside

represented by William A Brewer , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

C Dunham Biles (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

James S Renard (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

Michael S Gardner (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

Michael L Smith (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

Plaintiff
Chateau Ritz Partners doing business as Chateau De Ville

represented by William A Brewer , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

C Dunham Biles (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

James S Renard (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

Michael S Gardner (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

Michael L Smith (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

V. Consol Plaintiff Alfredo Vasquez

represented by Marisol L Perez DeMott McChesney Curtright & Armendariz LLP

Case: 3:06-cv-2371 As of: 04/19/2017 04:06 PM CDT 3 of 39
800 Dolorosa Street, Suite 100 San Antonio, TX 78207 210/354−1844 Fax: 210/212−2116 Email: marisol@demottusa.com LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
Andrew R Swartz Weil Gotshal & Manges 700 Louisiana Suite 1600 Houston, TX 77002−2784 713/546−5000 Bar Status: Not Admitted
David Broiles 2400 Indian Cove Fort Worth, TX 76108 817−246−7801 Email: davidbroiles@gmail.com ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
David J Healey Fish & Richardson P.C. One Houston Center, 1221 McKinney Suite 2800 Houston, TX 77010 713−654−5300 Fax: 713−652−0109 Email: healey@fr.com ATTORNEY TO BE NOTICED Bar Status: Not Admitted
David G Hinojosa Mexican American Legal Defense & Educational Fund Inc 110 Broadway Suite 300 San Antonio, TX 78205 210/224−5476 Fax: 210/224−5382 Email: dhinojosa@maldef.org ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
David H Urias Mexican American Legal Defense & Educational Fund Inc 110 Broadway Suite 300 San Antonio, TX 78205 210/224−5476 Fax: 210/224−5382 Email: durias@maldef.org TERMINATED: 07/11/2008 Bar Status: Admitted/In Good Standing
Diego Manuel Bernal Mexican American Legal Defense & Educational Fund Inc 110 Broadway St Suite 300

Case: 3:06-cv-2371 As of: 04/19/2017 04:06 PM CDT 4 of 39
San Antonio, TX 78205 210/224−5476 Fax: 210/224−5382 Email: dbernal@maldef.org ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
Jennifer C Newell ACLU Foundation Immigrant's Rights Project 39 Drumm St San Francisco, CA 94111 415/343−0774 Fax: 415/395−0950 Email: jnewell@aclu.org ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Katharine J Caplan Weil Gotshal & Manges 700 Louisiana Suite 1600 Houston, TX 77002−2784 713/546−5282 TERMINATED: 06/01/2007 Bar Status: Not Admitted
Kenneth W Edwards Weil, Gotshal & Manges LLP 700 Louisiana, Suite 1600 Houston, TX 77002 713/546−5217 Fax: 713/224−9511 Email: kenneth.edwards@weil.com Bar Status: Admitted/In Good Standing
Lee Gelernt American Civil Liberties Union Foundation 125 Broad St 18th Floor New York, NY 10004 212/549−2616 Bar Status: Not Admitted
Lisa Graybill Southern Poverty Law Center 1055 St Charles Avenue Suite 505 New Orleans, LA 70130 504−486−8982 Fax: 504−486−8947 Email: lisa.graybill@splcenter.org ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
Lori Martin Browne Weil Gotshal & Manges 200 Crescent Court Suite 300 Dallas, TX 75201 214/746−7700 Email: lori.browne@weil.com TERMINATED: 05/09/2007 Bar Status: Admitted/In Good Standing

Case: 3:06-cv-2371 As of: 04/19/2017 04:06 PM CDT 5 of 39

Consol Plaintiff Ramiro Perez

Lucas Guttentag ACLU Foundation Immigrants' Rights Project 39 Drumm St San Francisco, CA 94111 415/343−0773 PRO HAC VICE Bar Status: Not Admitted
Marisa Bono Mexican American Legal Defense & Educational Fund Inc 110 Broadway Suite 300 San Antonio, TX 78205 210/224−5476 Fax: 210/224−5382 Email: mbono@maldef.org ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
Nina Perales Mexican American Legal Defense & Educational Fund Inc 110 Broadway Suite 300 San Antonio, TX 78205 210/224−5476 Fax: 210/224−5382 FAX Email: nperales@maldef.org ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
Omar C Jadwat ACLU Foundation Immigrants' Rights Project 125 Broad St 18th Floor New York, NY 10004 212/549−2660 Fax: 212/549−2654 Email: ojadwat@aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted
represented by Marisol L Perez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
Andrew R Swartz (See above for address) Bar Status: Not Admitted
David Broiles (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
David J Healey

Case: 3:06-cv-2371 As of: 04/19/2017 04:06 PM CDT 6 of 39
(See above for address) ATTORNEY TO BE NOTICED Bar Status: Not Admitted
David G Hinojosa (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
David H Urias (See above for address) TERMINATED: 07/11/2008 Bar Status: Admitted/In Good Standing
Diego Manuel Bernal (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
Jennifer C Newell (See above for address) ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Katharine J Caplan (See above for address) TERMINATED: 06/01/2007 Bar Status: Not Admitted
Lee Gelernt (See above for address) Bar Status: Not Admitted
Lisa Graybill (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
Lori Martin Browne (See above for address) TERMINATED: 05/09/2007 Bar Status: Admitted/In Good Standing
Lucas Guttentag (See above for address) PRO HAC VICE Bar Status: Not Admitted
Marisa Bono (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
Nina Perales (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
Omar C Jadwat (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Consol Plaintiff

Case: 3:06-cv-2371 As of: 04/19/2017 04:06 PM CDT 7 of 39

Jane Doe #1 a minor, by and through her next friend Beatriz Almanza

represented by Marisol L Perez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

Andrew R Swartz (See above for address) Bar Status: Not Admitted

David Broiles (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

David J Healey (See above for address) ATTORNEY TO BE NOTICED Bar Status: Not Admitted

David G Hinojosa (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

David H Urias (See above for address) TERMINATED: 07/11/2008 Bar Status: Admitted/In Good Standing

Diego Manuel Bernal (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

Jennifer C Newell (See above for address) ATTORNEY TO BE NOTICED Bar Status: Not Admitted

Katharine J Caplan (See above for address) TERMINATED: 06/01/2007 Bar Status: Not Admitted

Kenneth W Edwards (See above for address) Bar Status: Admitted/In Good Standing

Lee Gelernt (See above for address) Bar Status: Not Admitted

Lisa Graybill (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

Lori Martin Browne (See above for address) TERMINATED: 05/09/2007 Bar Status: Admitted/In Good Standing

Lucas Guttentag (See above for address)

Case: 3:06-cv-2371 As of: 04/19/2017 04:06 PM CDT 8 of 39

PRO HAC VICE Bar Status: Not Admitted

Marisa Bono (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

Nina Perales (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

Omar C Jadwat (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted

Consol Plaintiff
Jane Does #2 and 3, and John Does #1 and 2 minors, by and through their next friend Mary Montgomery

represented by Marisol L Perez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

Andrew R Swartz (See above for address) Bar Status: Not Admitted

David Broiles (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

David J Healey (See above for address) ATTORNEY TO BE NOTICED Bar Status: Not Admitted

David G Hinojosa (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

David H Urias (See above for address) TERMINATED: 07/11/2008 Bar Status: Admitted/In Good Standing

Diego Manuel Bernal (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

Jennifer C Newell (See above for address) ATTORNEY TO BE NOTICED Bar Status: Not Admitted

Katharine J Caplan (See above for address) TERMINATED: 06/01/2007 Bar Status: Not Admitted

Case: 3:06-cv-2371 As of: 04/19/2017 04:06 PM CDT 9 of 39

Consol Plaintiff Jane Doe #4 and John Doe #3 minors, by and through their next friend Rosa Delia Ayon
Consol Plaintiff Todd Mongeon

Kenneth W Edwards (See above for address) Bar Status: Admitted/In Good Standing
Lee Gelernt (See above for address) Bar Status: Not Admitted
Lisa Graybill (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
Lori Martin Browne (See above for address) TERMINATED: 05/09/2007 Bar Status: Admitted/In Good Standing
Lucas Guttentag (See above for address) PRO HAC VICE Bar Status: Not Admitted
Marisa Bono (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
Nina Perales (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
Omar C Jadwat (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted
represented by Nina Perales (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
represented by Marisol L Perez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
Andrew R Swartz (See above for address) Bar Status: Not Admitted
David Broiles (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
David J Healey (See above for address)

Case: 3:06-cv-2371 As of: 04/19/2017 04:06 PM CDT 10 of 39
ATTORNEY TO BE NOTICED Bar Status: Not Admitted
David G Hinojosa (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
David H Urias (See above for address) TERMINATED: 07/11/2008 Bar Status: Admitted/In Good Standing
Diego Manuel Bernal (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
Jennifer C Newell (See above for address) ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Katharine J Caplan (See above for address) TERMINATED: 06/01/2007 Bar Status: Not Admitted
Kenneth W Edwards (See above for address) Bar Status: Admitted/In Good Standing
Lee Gelernt (See above for address) Bar Status: Not Admitted
Lisa Graybill (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
Lori Martin Browne (See above for address) TERMINATED: 05/09/2007 Bar Status: Admitted/In Good Standing
Lucas Guttentag (See above for address) PRO HAC VICE Bar Status: Not Admitted
Marisa Bono (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
Nina Perales (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
Omar C Jadwat (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Case: 3:06-cv-2371 As of: 04/19/2017 04:06 PM CDT 11 of 39

Bar Status: Not Admitted

Consol Plaintiff Andrew Mongeon

represented by Marisol L Perez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

Andrew R Swartz (See above for address) Bar Status: Not Admitted

David Broiles (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

David J Healey (See above for address) ATTORNEY TO BE NOTICED Bar Status: Not Admitted

David G Hinojosa (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

David H Urias (See above for address) TERMINATED: 07/11/2008 Bar Status: Admitted/In Good Standing

Diego Manuel Bernal (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

Jennifer C Newell (See above for address) ATTORNEY TO BE NOTICED Bar Status: Not Admitted

Katharine J Caplan (See above for address) TERMINATED: 06/01/2007 Bar Status: Not Admitted

Kenneth W Edwards (See above for address) Bar Status: Admitted/In Good Standing

Lee Gelernt (See above for address) Bar Status: Not Admitted

Lisa Graybill (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

Lori Martin Browne (See above for address) TERMINATED: 05/09/2007

Case: 3:06-cv-2371 As of: 04/19/2017 04:06 PM CDT 12 of 39

Bar Status: Admitted/In Good Standing

Lucas Guttentag (See above for address) PRO HAC VICE Bar Status: Not Admitted

Marisa Bono (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

Nina Perales (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

Omar C Jadwat (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted

Consol Plaintiff Elizabeth Barrientos

represented by M Forest Nelson Burt Barr & Associates LLP 203 E Colorado Blvd Dallas, TX 75203 214/943−0012 Fax: 214/943−4800 Email: fnelson@bbarr.com LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

John Holman Barr Burt Barr & Associates LLP 203 E Colorado Blvd Dallas, TX 75203 214/943−0012 Fax: 214/943−0048 Email: jbarr@bbarr.com ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

Consol Plaintiff Raymundo Foertes

represented by M Forest Nelson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

John Holman Barr (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

Consol Plaintiff Monica V Barrientos

represented by M Forest Nelson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

Case: 3:06-cv-2371 As of: 04/19/2017 04:06 PM CDT 13 of 39

Consol Plaintiff Dung Tran
Consol Plaintiff Maria C Perales
Consol Plaintiff Eusebio Eduardo Egusquiza
Consol Plaintiff Aslan Rafizadeh
Consol Plaintiff Adela Reyes

John Holman Barr (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
represented by M Forest Nelson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
John Holman Barr (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
represented by M Forest Nelson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
John Holman Barr (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
represented by M Forest Nelson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
John Holman Barr (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
represented by M Forest Nelson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
John Holman Barr (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
represented by M Forest Nelson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
John Holman Barr

Case: 3:06-cv-2371 As of: 04/19/2017 04:06 PM CDT 14 of 39

(See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

Consol Plaintiff Felipa Zamora

represented by M Forest Nelson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

John Holman Barr (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

Consol Plaintiff Ana R Montoya

represented by M Forest Nelson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

John Holman Barr (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

Consol Plaintiff Otto Barrera

represented by M Forest Nelson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

John Holman Barr (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

Consol Plaintiff Ramon Pacheco

represented by M Forest Nelson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

John Holman Barr (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

Consol Plaintiff Rafael Garcia

represented by M Forest Nelson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

John Holman Barr (See above for address) ATTORNEY TO BE NOTICED

Case: 3:06-cv-2371 As of: 04/19/2017 04:06 PM CDT 15 of 39

Bar Status: Admitted/In Good Standing

Consol Plaintiff Magdalene Rangel

represented by M Forest Nelson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

John Holman Barr (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

Consol Plaintiff Sandra Trejo

represented by M Forest Nelson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

John Holman Barr (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

Consol Plaintiff Juan Sanchez

represented by M Forest Nelson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

John Holman Barr (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

Consol Plaintiff Oscar Garcia

represented by M Forest Nelson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

John Holman Barr (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

Consol Plaintiff Tanveer Yousuf

represented by M Forest Nelson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

John Holman Barr (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

Case: 3:06-cv-2371 As of: 04/19/2017 04:06 PM CDT 16 of 39

Consol Plaintiff Su You
Consol Plaintiff Belen Ortiz
Consol Plaintiff Alicia Alvarado
Consol Plaintiff Reyna Figueroa
Consol Plaintiff Ana Cecilia Castro
Consol Plaintiff

represented by M Forest Nelson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
John Holman Barr (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
represented by M Forest Nelson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
John Holman Barr (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
represented by M Forest Nelson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
John Holman Barr (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
represented by M Forest Nelson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
John Holman Barr (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
represented by M Forest Nelson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
John Holman Barr (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

Case: 3:06-cv-2371 As of: 04/19/2017 04:06 PM CDT 17 of 39

Victorino Calexes

represented by M Forest Nelson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

John Holman Barr (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

Consol Plaintiff Elva Rodriguez

represented by M Forest Nelson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

John Holman Barr (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

Consol Plaintiff Martha A Gonzalez

represented by M Forest Nelson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

John Holman Barr (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

Consol Plaintiff Giovary Garcia

represented by M Forest Nelson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

John Holman Barr (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

Consol Plaintiff Marta Castillo

represented by M Forest Nelson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

John Holman Barr (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

Consol Plaintiff Guillermo Gil

represented by M Forest Nelson (See above for address)

Case: 3:06-cv-2371 As of: 04/19/2017 04:06 PM CDT 18 of 39

LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

John Holman Barr (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

Consol Plaintiff Douglas Maldonado

represented by M Forest Nelson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

John Holman Barr (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

Consol Plaintiff Patricia Gonzalez

represented by M Forest Nelson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

John Holman Barr (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

Consol Plaintiff Janes Does 1−25

represented by M Forest Nelson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

John Holman Barr (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

Consol Plaintiff John Does 1−25

represented by M Forest Nelson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

John Holman Barr (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

V. Defendant The City of Farmers Branch Texas

represented by

Case: 3:06-cv-2371 As of: 04/19/2017 04:06 PM CDT 19 of 39
William Trey C Dowdy , III Strasburger & Price PO Box 50100 901 Main St Ste 4400 Dallas, TX 75250−100 214/651−4746 Fax: 214/659−4032 Email: trey.dowdy@strasburger.com LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
Charles T Frazier , Jr Alexander Dubose Jefferson & Townsend LLP 4925 Greenville Avenue Suite 510 Dallas, TX 75206−4026 214−369−2358 Fax: 214−369−2359 Email: cfrazier@adjtlaw.com TERMINATED: 08/16/2007 Bar Status: Admitted/In Good Standing
D Paul Dalton Dalton Law PLLC 6565 N MacArthur Blvd Suite 225 Irving, TX 75039 214−624−5145 Fax: 214−602−8300 Email: pdalton@daltonlawpllc.com TERMINATED: 08/16/2007 Bar Status: Admitted/In Good Standing
Darrell G−M Noga Cantey Hanger LLP 1999 Bryan Street, Suite 3300 Dallas, TX 75201−6822 214/978−4120 Fax: 214/978−4150 Email: dnoga@canteyhanger.com ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
Jadd F Masso Strasburger & Price − Dallas 901 Main St Suite 6000 Dallas, TX 75202 214/651−4716 Email: jadd.masso@strasburger.com ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
John Francis Boyle , Jr Boyle & Lowry 4201 Wingren Suite 108 Irving, TX 75062 972/650−7100 Bar Status: Admitted/In Good Standing
Kristy Jocelyn Orr Boyle & Lowry

Case: 3:06-cv-2371 As of: 04/19/2017 04:06 PM CDT 20 of 39

4201 Wingren Suite 108 Irving, TX 75062 214/650−7100 Fax: 214/650−7105 Bar Status: Admitted/In Good Standing

Matthew C G Boyle Boyle & Lowry 4201 Wingren Suite 108 Irving, TX 75062 972/650−7100 Fax: 972/650−7105 Email: mcgboyle@boyle−lowry.com TERMINATED: 08/16/2007 Bar Status: Admitted/In Good Standing

Michael K Kallas Boyle & Lowry 4201 Wingren Suite 108 Irving, TX 75062 972/650−7100 Fax: 972/650−7105 Bar Status: Admitted/In Good Standing

Peter Michael Jung Strasburger & Price, LLP PO Box 50100 901 Main St Suite 6000 Dallas, TX 75250−0100 214/651−4724 Fax: 214/659−4022 FAX Email: michael.jung@strasburger.com ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

Scott Shanes Strasburger & Price LLP 2801 Network Blvd, Suite 600 Frisco, TX 75034 469−287−3906 Fax: 469−287−3999 Email: scott.shanes@strasburger.com ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

Defendant Bob Phelps

represented by William Trey C Dowdy , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

Jadd F Masso (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

John Francis Boyle , Jr (See above for address) Bar Status: Admitted/In Good Standing

Case: 3:06-cv-2371 As of: 04/19/2017 04:06 PM CDT 21 of 39

Kristy Jocelyn Orr (See above for address) Bar Status: Admitted/In Good Standing

Matthew C G Boyle (See above for address) TERMINATED: 08/16/2007 Bar Status: Admitted/In Good Standing

Michael K Kallas (See above for address) Bar Status: Admitted/In Good Standing

Defendant Tim O'Hare

represented by William Trey C Dowdy , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

Jadd F Masso (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

John Francis Boyle , Jr (See above for address) Bar Status: Admitted/In Good Standing

Kristy Jocelyn Orr (See above for address) Bar Status: Admitted/In Good Standing

Matthew C G Boyle (See above for address) TERMINATED: 08/16/2007 Bar Status: Admitted/In Good Standing

Michael K Kallas (See above for address) Bar Status: Admitted/In Good Standing

Defendant Bill Moses

represented by William Trey C Dowdy , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

Jadd F Masso (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

John Francis Boyle , Jr (See above for address) Bar Status: Admitted/In Good Standing

Kristy Jocelyn Orr (See above for address) Bar Status: Admitted/In Good Standing

Matthew C G Boyle (See above for address)

Case: 3:06-cv-2371 As of: 04/19/2017 04:06 PM CDT 22 of 39

TERMINATED: 08/16/2007 Bar Status: Admitted/In Good Standing

Michael K Kallas (See above for address) Bar Status: Admitted/In Good Standing

Defendant Charlie Bird

represented by Jadd F Masso (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

John Francis Boyle , Jr (See above for address) Bar Status: Admitted/In Good Standing

Kristy Jocelyn Orr (See above for address) Bar Status: Admitted/In Good Standing

Matthew C G Boyle (See above for address) TERMINATED: 08/16/2007 Bar Status: Admitted/In Good Standing

Michael K Kallas (See above for address) Bar Status: Admitted/In Good Standing

Defendant James Smith

represented by William Trey C Dowdy , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

Jadd F Masso (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

John Francis Boyle , Jr (See above for address) Bar Status: Admitted/In Good Standing

Kristy Jocelyn Orr (See above for address) Bar Status: Admitted/In Good Standing

Matthew C G Boyle (See above for address) TERMINATED: 08/16/2007 Bar Status: Admitted/In Good Standing

Michael K Kallas (See above for address) Bar Status: Admitted/In Good Standing

Defendant Ben Robinson

represented by William Trey C Dowdy , III (See above for address) LEAD ATTORNEY

Case: 3:06-cv-2371 As of: 04/19/2017 04:06 PM CDT 23 of 39

ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

Jadd F Masso (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

John Francis Boyle , Jr (See above for address) Bar Status: Admitted/In Good Standing

Kristy Jocelyn Orr (See above for address) Bar Status: Admitted/In Good Standing

Matthew C G Boyle (See above for address) TERMINATED: 08/16/2007 Bar Status: Admitted/In Good Standing

Michael K Kallas (See above for address) Bar Status: Admitted/In Good Standing

Defendant
Jim Olk in their official capacities

represented by William Trey C Dowdy , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

Jadd F Masso (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

John Francis Boyle , Jr (See above for address) Bar Status: Admitted/In Good Standing

Kristy Jocelyn Orr (See above for address) Bar Status: Admitted/In Good Standing

Matthew C G Boyle (See above for address) TERMINATED: 08/16/2007 Bar Status: Admitted/In Good Standing

Michael K Kallas (See above for address) Bar Status: Admitted/In Good Standing

V.
Movant
Federation for American Immigration Reform Inc TERMINATED: 06/01/2007

represented by Scott Shanes (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

Case: 3:06-cv-2371 As of: 04/19/2017 04:06 PM CDT 24 of 39

Michael M Hethmon Immigration Law Reform Institute 25 Massachusetts Avenue NW Suite 330 Washington, DC 20001 202/232−5590 Fax: 202/464−3590 Email: mhethmon@irli.org PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted

Sara Kate Jancaitis Strasburger & Price PO Box 50100 901 Main St Ste 4400 Dallas, TX 75250−100 214/651−4822 Fax: 214/659−4055 Email: sarakate.jancaitis@strasburger.com ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

Steven Paul Watten Strasburger & Price PO Box 50100 901 Main St Ste 4300 Dallas, TX 75250−0100 214/651−4300 Bar Status: Admitted/In Good Standing

Amicus Texas Apartment Association

represented by Brian Arnold Eberstein Eberstein & Witherite LLP 3100 Monticello Avenue, Suite 500 Dallas, TX 75205 214/378−6665 Fax: 214/378−6670 Email: beberstein@ewlawyers.com LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

V.
Mediator
ADR Provider TERMINATED: 09/02/2010

represented by Cecilia H Morgan JAMS 8401 N Central Expressway Suite 610 Dallas, TX 75225 214/744−5267 Fax: 214/720−6010 Email: cmorgan@jamsadr.com TERMINATED: 09/02/2010 Bar Status: Admitted/In Good Standing

Date Filed 12/22/2006

# Docket Text
1 Plaintiffs' COMPLAINT for Declaratory and Injunctive Relief against The City of Farmers Branch, Texas, Bob Phelps, Tim O'Hare, Bill Moses, Charlie Bird, James Smith, Ben Robinson, Jim Olk filed by Chateau Ritz Partners, Villas at Parkside

Case: 3:06-cv-2371 As of: 04/19/2017 04:06 PM CDT 25 of 39

12/22/2006 12/22/2006 12/22/2006 12/22/2006 12/26/2006 12/27/2006 12/27/2006 12/27/2006 12/27/2006 12/27/2006 12/29/2006 12/29/2006 01/05/2007 01/11/2007 01/11/2007
01/11/2007 01/15/2007 01/16/2007 01/16/2007

Partners, Lakeview at Parkside Partners Ltd. (Filing fee $350; Receipt number 7195) (axm, ) (Entered: 12/26/2006)
DEMAND for Trial by Jury by Chateau Ritz Partners, Villas at Parkside Partners, Lakeview at Parkside Partners Ltd. (contained within complaint) (axm, ) (Entered: 12/26/2006)
***Magistrate Judge Sanderson chosen by random selection to handle matters that may be referred in this case. (axm, ) (Entered: 12/26/2006)
2 Summons Issued as to The City of Farmers Branch, Texas, Bob Phelps, Tim O'Hare, Bill Moses, Charlie Bird, James Smith, Ben Robinson, Jim Olk. (ISS−8) (axm, ) (Entered: 12/26/2006)
3 CERTIFICATE OF INTERESTED PERSONS/DISCLOSURE STATEMENT by Chateau Ritz Partners, Villas at Parkside Partners, Lakeview at Parkside Partners Ltd. (axm, ) (Entered: 12/26/2006)
4 Standing Order Designating Case for ECF − see order for specifics. (Signed by Judge Sam A Lindsay on 12/26/2006) (axm, ) (Entered: 12/26/2006)
5 SUMMONS Returned Executed as to Bob Phelps served on 12/26/2006 via personal service, answer due 1/16/2007. (cxb, ) (Entered: 01/03/2007)
6 SUMMONS Returned Executed as to The City of Farmers Branch, Texas served on 12/26/2006 by serving its mayor, Bob Phelps, answer due 1/16/2007. (cxb, ) (Entered: 01/03/2007)
7 SUMMONS Returned Executed as to Jim Olk served on 12/26/2006 via personal service, answer due 1/16/2007. (cxb, ) (Entered: 01/03/2007)
8 SUMMONS Returned Executed as to James Smith served on 12/26/2006 by leaving copies with female adult co−resident, answer due 1/16/2007. (cxb, ) (Entered: 01/03/2007)
9 SUMMONS Returned Executed as to Ben Robinson served on 12/22/2006 via personal service, answer due 1/11/2007. (cxb, ) (Entered: 01/03/2007)
10 SUMMONS Returned Executed as to Charlie Bird served on 12/27/2006 via personal service, answer due 1/16/2007. (cxb, ) (Entered: 01/04/2007)
11 SUMMONS Returned Executed as to Bill Moses served on 12/29/2006 via personal service, answer due 1/18/2007. (cxb, ) (Entered: 01/04/2007)
12 SUMMONS Returned Executed as to Tim O'Hare served on 1/4/2007 via personal service, answer due 1/24/2007. (cxb) (Entered: 01/10/2007)
13 NOTICE by The City of Farmers Branch, Texas (Boyle, Matthew) (Entered: 01/11/2007)
15 FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF against The City of Farmers Branch Texas, Bob Phelps, Tim O'Hare, Bill Moses, Charlie Bird, James Smith, Ben Robinson, Jim Olk filed by Chateau Ritz Partners, Villas at Parkside Partners, Lakeview at Parkside Partners Ltd. (cxb) (Entered: 01/16/2007)
16 Summons Issued as to Texas Attorney General, The City of Farmers Branch Texas, Bob Phelps, Tim O'Hare, Bill Moses, Charlie Bird, James Smith, Ben Robinson, Jim Olk. (iss−9) (cxb) (Entered: 01/16/2007)
14 ANSWER to 15 First Amended Complaint by The City of Farmers Branch Texas, Bob Phelps, Tim O'Hare, Bill Moses, Charlie Bird, James Smith, Ben Robinson, Jim Olk. (Boyle, Matthew) Modified on 1/16/2007 (cxb). (Entered: 01/15/2007)
17 SUMMONS Returned Executed as to The City of Farmers Branch Texas served on 1/12/2007 by delivering to its senior administrative assistant, answer due 2/1/2007. (cxb) (Entered: 01/19/2007)
18 SUMMONS Returned Executed as to Charlie Bird served on 1/15/2007 via personal service, answer due 2/5/2007. (cxb) (Entered: 01/19/2007)

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01/16/2007 01/16/2007 01/16/2007 01/18/2007 01/18/2007 01/19/2007 01/19/2007 01/29/2007 02/12/2007
02/12/2007
03/05/2007
03/06/2007
03/07/2007
03/09/2007
03/15/2007 03/16/2007 03/19/2007 03/20/2007

19 SUMMONS Returned Executed as to Ben Robinson served on 1/13/2007 via personal service, answer due 2/2/2007. (cxb) (Entered: 01/19/2007)
20 SUMMONS Returned Executed as to James Smith served on 1/15/2007 via personal service, answer due 2/5/2007. (cxb) (Entered: 01/19/2007)
21 SUMMONS Returned Executed as to Bill Moses served on 1/13/2007 via personal service, answer due 2/2/2007. (cxb) (Entered: 01/19/2007)
22 SUMMONS Returned Executed as to Jim Olk served on 1/16/2007 via personal service, answer due 2/5/2007. (cxb) (Entered: 01/19/2007)
23 SUMMONS Returned Executed as to Texas Attorney General by delivering to Daniel Ramirez, Executive Assistant to Legal Counsel. (cxb) (Entered: 01/19/2007)
24 SUMMONS Returned Executed as to Bob Phelps served personally on 1/17/2007, answer due 2/6/2007. (klm) (Entered: 01/22/2007)
25 SUMMONS Returned Executed as to Tim O'Hare served personally on 1/17/2007, answer due 2/6/2007. (klm) (Entered: 01/22/2007)
26 Vacation Letter on behalf of defendants, et al. (Boyle, Matthew) Modified on 1/30/2007 (cxb). (Entered: 01/29/2007)
27 MOTION to Dismiss for Lack of Jurisdiction and to Dismiss Individual Defendants for Failure to State a Claim by The City of Farmers Branch Texas, Bob Phelps, Tim O'Hare, Bill Moses, Charlie Bird, James Smith, Ben Robinson, Jim Olk. (Boyle, Matthew) Modified on 2/13/2007 (cxb). (Entered: 02/12/2007)
28 Brief/Memorandum in Support filed by The City of Farmers Branch Texas re 27 MOTION to Dismiss for Lack of Jurisdiction and to Dismiss Individual Defendants for Failure to State a Claim. (Boyle, Matthew) Modified on 2/13/2007 (cxb). (Entered: 02/12/2007)
29 Unopposed MOTION for Leave to File Plaintiffs' Second Amended Complaint by Chateau Ritz Partners, Villas at Parkside Partners, Lakeview at Parkside Partners Ltd (Attachments: # 1 Appendix Second Amended Complaint# 2 Text of Proposed Order Proposed Order on Motion for Leave) (Gardner, Michael) (Entered: 03/05/2007)
30 Unopposed MOTION for Extension of Time to File Response/Reply as to 27 MOTION to Dismiss for Lack of Jurisdiction and to Dismiss Individual Defendants for Failure to State a Claim by Chateau Ritz Partners, Villas at Parkside Partners, Lakeview at Parkside Partners Ltd (Attachments: # 1) (Smith, Michael) (Entered: 03/06/2007)
31 ORDER: granting 29 Plaintiffs' Unopposed Motion for Leave to File Plaintiffs' Second Amended Complaint, granting 30 Plaintiffs' Unopposed Motion for Extension of Time to File Response as to 27 Motion to Dismiss. Plaintiffs shall file their Second Amended Complaint within three business days of this order. Responses due by 3/9/2007 5:00 p.m. (Signed by Judge Sam A Lindsay on 3/7/07) (cxb) (Entered: 03/07/2007)
32 SECOND AMENDED COMPLAINT Villas at Parkside Partners, et al. against The City of Farmers Branch Texas filed by Chateau Ritz Partners, Villas at Parkside Partners, Lakeview at Parkside Partners Ltd. (Smith, Michael) Modified on 3/20/2007 (cxb). (Entered: 03/09/2007)
33 ORDER denying as moot 27 Motion to Dismiss for Lack of Jurisdiction (Signed by Judge Sam A Lindsay on 3/15/07) (jrb) (Entered: 03/15/2007)
34 Unopposed Motion for Extension of Time to File Answer by The City of Farmers Branch Texas. (Boyle, Matthew) Modified on 3/19/2007 (cxb). (Entered: 03/16/2007)
35 Unopposed Motion for Extension of Time to File Answer by The City of Farmers Branch Texas (Boyle, Matthew) Modified on 3/20/2007 (cxb). (Entered: 03/19/2007)
36 ORDER denying as moot 34 Motion for Extension of Time to File Answer, granting 35 Motion for Extension of Time to File Answer to 32 Second Amended Complaint. The City of Farmers Branch Texas answer due 3/28/2007 5:00 PM. (Signed by Judge Sam A Lindsay on 3/20/07) (cxb) (Entered: 03/20/2007)

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03/28/2007 03/28/2007 04/10/2007 04/17/2007 04/18/2007 04/19/2007 04/24/2007 05/02/2007 05/03/2007 05/07/2007 05/07/2007 05/07/2007 05/08/2007 05/08/2007
05/09/2007 05/09/2007

37 NOTICE of Attorney Appearance by Darrell G−M Noga on behalf of The City of Farmers Branch Texas (Noga, Darrell) (Entered: 03/28/2007)
38 MOTION to Dismiss (Rule 12(b)(1) and 12(b)(6)) by The City of Farmers Branch Texas with Incorporated Brief in Support. (Noga, Darrell) (Entered: 03/28/2007)
39 Vacation Letter by attorney for defendants. (Boyle, Matthew) Modified on 4/11/2007 (cxb). (Entered: 04/10/2007)
40 Unopposed Motion for Extension of Time to File Response/Reply to Defendant's Motion to Dismiss by Chateau Ritz Partners, Villas at Parkside Partners, Lakeview at Parkside Partners Ltd. (Attachments: # 1 Text of Proposed Order) (Smith, Michael) Modified on 4/18/2007 (cxb). (Entered: 04/17/2007)
41 ORDER CONSOLIDATING CASES: the court directs the clerk of the court to administratively close Civil Action No. 3:06−CV−2376−L and Civil Action No. 3:07−CV−0061−L for statistical purposes. (Signed by Judge Sam A Lindsay on 4/18/07) (cxb) (Entered: 04/19/2007)
42 Defendant's REPLY to Barrietos Plaintiffs' Response to Defendant's Motion to Dismiss Under FRCP Rule 12(b)(1) and 12(b)(6)) filed by The City of Farmers Branch Texas re MOTION to Dismiss (Rule 12(b)(1) and 12(b)(6)) 1 Exhibit A) (Noga, Darrell) Modified on 4/24/2007 (skt). (Entered: 04/19/2007)
43 Plaintiffs' Memorandum in Opposition filed by Chateau Ritz Partners, Villas at Parkside Partners, Lakeview at Parkside Partners Ltd re 38 MOTION to Dismiss (Rule 12(b)(1) and 12(b)(6)). (Smith, Michael) Modified on 4/25/2007 (cxb). (Entered: 04/24/2007)
44 *** WITHDRAWN per order dated 5/29/07, doc. 93. *** MOTION to Quash Plaintiffs' Notice of Deposition by Federation for American Immigration Reform Inc with Brief in Support. (Attachments: # 1 Exhibit Exhibit A) (Jancaitis, Sara Kate) Modified on 5/29/2007 (cxb). (Entered: 05/02/2007)
45 Unopposed MOTION to Extend Time to Respond to City of Farmers Branch's Motion to Dismiss by Alfredo Vasquez (Attachments: # 1 Text of Proposed Order) (Perales, Nina) (Entered: 05/03/2007)
46 ORDER REFERRING MOTION to Judge Sanderson: 44 Motion to Quash filed by Federation for American Immigration Reform Inc. Motions referred to Wm F Sanderson, Jr. (Signed by Judge Sam A Lindsay on 5/7/07) (cxb) (Entered: 05/07/2007)
47 Standing Order for Electronic Filings Related to Matters Referred to the United States Magistrate Judge − see order for specifics. (Signed by Judge Wm F Sanderson Jr on 5/7/07) (cxb) (Entered: 05/07/2007)
48 ORDER: granting 45 Unopposed Motion to Extend Time to Respond to City of Farmers Branch's Motion to Dismiss filed by Alfredo Vasquez. Responses due by 5/8/2007 5:00 p.m. (Signed by Judge Sam A Lindsay on 5/7/07) (cxb) (Entered: 05/07/2007)
49 RESPONSE filed by Alfredo Vasquez, Ramiro Perez, Jane Doe #1, Jane Does #2 and 3, and John Does #1 and 2, Todd Mongeon, Andrew Mongeon re 44 MOTION to Quash Plaintiffs' Notice of Deposition and Brief in Support (Perales, Nina) (Entered: 05/08/2007)
50 RESPONSE filed by Alfredo Vasquez re MOTION to Dismiss (Rule 12(b)(1) and 12(b)(6)) Vasquez filed by Farmers Branch (Doc. 47 in previously terminated case 3−06−cv−2376−L).(Attachments: # 1 Appendix Appendix to Plaintiff Vasquez et al Response to Motion to Dismiss) (Perales, Nina) Modified on 5/9/2007 (cxb). (Entered: 05/08/2007)
51 Appendix to 49 Response to Motion, by Consol Plaintiffs Jane Does #2 and 3, and John Does #1 and 2, Todd Mongeon, Andrew Mongeon. (Perales, Nina) Modified on 5/9/2007 (cxb). (Entered: 05/09/2007)
52 REPLY filed by The City of Farmers Branch Texas re 38 MOTION to Dismiss (Rule 12(b)(1) and 12(b)(6)). (Attachments: # 1 Exhibit A) (Noga, Darrell) Modified on

Case: 3:06-cv-2371 As of: 04/19/2017 04:06 PM CDT 28 of 39

05/11/2007 05/11/2007 05/11/2007 05/11/2007 05/14/2007
05/14/2007 05/14/2007 05/15/2007 05/15/2007 05/15/2007 05/15/2007

5/10/2007 (cxb). (Entered: 05/09/2007)
53 MOTION to Quash Barrietos Plaintiffs' Deposition Notice to Bob Phelps and Motion for Protective Order by The City of Farmers Branch Texas with Incorporated Brief. (Attachments: # 1 Exhibit "A") (Noga, Darrell) Modified on 5/14/2007 (cxb). (Entered: 05/11/2007)
54 MOTION to Quash Barrietos Plaintiffs' Deposition Notice to James Smith and Motion for Protective Order by The City of Farmers Branch Texas with Incorporated Brief. (Attachments: # 1 Exhibit "A") (Noga, Darrell) Modified on 5/14/2007 (cxb). (Entered: 05/11/2007)
55 MOTION to Quash Barrietos Plaintiffs' Deposition Notice to Tim O'Hare and Motion for Protective Order by The City of Farmers Branch Texas with Incorporated Brief. (Attachments: # 1 Exhibit "A") (Noga, Darrell) Modified on 5/14/2007 (cxb). (Entered: 05/11/2007)
56 MOTION to Quash Barrietos Plaintiffs' Deposition Notice to Ben Robinson and Motion for Protective Order by The City of Farmers Branch Texas with Incorporated Brief. (Attachments: # 1 Exhibit "A") (Noga, Darrell) Modified on 5/14/2007 (cxb). (Entered: 05/11/2007)
57 *** VACATED per order 5/15/07, doc. 64. *** ORDER REFERRING MOTIONS to Judge Ramirez: 56 Motion to Quash filed by The City of Farmers Branch Texas, 54 Motion to Quash filed by The City of Farmers Branch Texas, 55 Motion to Quash filed by The City of Farmers Branch Texas, 53 Motion to Quash filed by The City of Farmers Branch Texas. Motions referred to Irma C Ramirez. (Signed by Judge Sam A Lindsay on 5/14/07) (cxb) Modified on 5/15/2007 (cxb). (Entered: 05/14/2007)
58 ORDER: Setting Deadlines as to 44 Federation for American Immigration Reform, Inc's Motion to Quash. Motion Hearing set for 5/30/2007 09:30 AM before Magistrate Judge Wm F Sanderson Jr. (Signed by Judge Wm F Sanderson Jr on 5/14/07) (cxb) (Entered: 05/14/2007)
59 Unopposed MOTION for Leave to File Brief in Excess of Page Limit by Alfredo Vasquez, Ramiro Perez, Jane Doe #1, Jane Does #2 and 3, and John Does #1 and 2, Jane Doe #4 and John Doe #3, Todd Mongeon, Andrew Mongeon (Attachments: # 1 Text of Proposed Order for leave to file brief in excess of page limit) (Perales, Nina) (Entered: 05/15/2007)
60 MOTION for Temporary Restraining Order by Alfredo Vasquez, Ramiro Perez, Jane Doe #1, Jane Does #2 and 3, and John Does #1 and 2, Jane Doe #4 and John Doe #3, Todd Mongeon, Andrew Mongeon with Memorandum in Support. (Attachments: # 1 Text of Proposed Order) (Perales, Nina) (Entered: 05/15/2007)
61 Brief/Memorandum in Support filed by Alfredo Vasquez, Ramiro Perez, Jane Doe #1, Jane Does #2 and 3, and John Does #1 and 2, Jane Doe #4 and John Doe #3, Todd Mongeon, Andrew Mongeon re 60 MOTION for Temporary Restraining Order (Attachments: # 1 Appendix # 2 Exhibit A−E# 3 Exhibit F−H# 4 Exhibit I−N# 5 Exhibit O−W) (Perales, Nina) (Entered: 05/15/2007)
62 ORDER granting 59 Motion for Leave to Extend Page Limitations to Plaintiffs' Memorandum of Law in Support of their Application for a Temporary Restraining Order. Plaintiffs' memorandum shall not exceed 30 pages. (Signed by Judge Sam A Lindsay on 5/15/07) (cxb) (Entered: 05/15/2007)
63 MOTION for Temporary Restraining Order by Elizabeth Barrietos, Raymundo Foertes, Monica V Barrientos, Dung Tran, Maria C Perales, Eusebio Eduardo Egusquiza, Aslan Rafizadeh, Adela Reyes, Felipa Zamora, Ana R Montoya, Otto Barrera, Ramon Pacheco, Rafael Garcia, Magdalene Rangel, Sandra Trejo, Juan Sanchez, Oscar Garcia, Tanveer Yousuf, Su You, Belen Ortiz, Alicia Alvarado, Reyna Figueroa, Ana Cecilia Castro, Victorino Calexes, Elva Rodriguez, Martha A Gonzalez, Giovary Garcia, Marta Castillo, Guillermo Gil, Janes Does 1−25, John Does 1−25 with Memorandum of Law in Support. (Attachments: # 1 Memorandum of Law in Support of Application for Temporary Restraining Order# 2 Appendix Appendix to Application and Memordum of Law in Support of Temporary Restraining Order# 3 Text of Proposed Order Proposed Order) (Nelson, M) (Entered: 05/15/2007)

Case: 3:06-cv-2371 As of: 04/19/2017 04:06 PM CDT 29 of 39

05/15/2007
05/16/2007 05/16/2007 05/16/2007 05/16/2007 05/16/2007 05/16/2007
05/16/2007
05/17/2007 05/17/2007 05/17/2007 05/17/2007 05/18/2007 05/18/2007

64 ORDER REFERRING MOTION to Judge Sanderson: 56 Motion to Quash, filed by The City of Farmers Branch Texas, 54 Motion to Quash, filed by The City of Farmers Branch Texas, 55 Motion to Quash, filed by The City of Farmers Branch Texas, 53 Motion to Quash, filed by The City of Farmers Branch Texas. By order of May 14, 2007, the court referred several pending motions to United States Magistrate Judge Irma C. Ramirez. The court hereby vacates the May 14, 2007 order. Motions referred to Wm F Sanderson, Jr. (Signed by Judge Sam A Lindsay on 5/15/07) (cxb) (Entered: 05/15/2007)
65 NOTICE of Attorney Appearance by Kenneth W Edwards on behalf of Alfredo Vasquez, Jane Doe #1, Jane Does #2 and 3, and John Does #1 and 2, Todd Mongeon, Andrew Mongeon (Edwards, Kenneth) (Entered: 05/16/2007)
66 MOTION for Temporary Restraining Order and Preliminary Injunction by Chateau Ritz Partners, Villas at Parkside Partners, Lakeview at Parkside Partners Ltd with Brief in Support. (Smith, Michael) (Entered: 05/16/2007)
67 Brief/Memorandum in Support filed by Chateau Ritz Partners, Villas at Parkside Partners, Lakeview at Parkside Partners Ltd re 66 MOTION for Temporary Restraining Order and Preliminary Injunction (Smith, Michael) (Entered: 05/16/2007)
68 Appendix in Support filed by Chateau Ritz Partners, Villas at Parkside Partners, Lakeview at Parkside Partners Ltd re 67 Brief/Memorandum in Support of Motion (Attachments: # 1 Appendix App_1# 2 Appendix App_2) (Smith, Michael) (Entered: 05/16/2007)
69 Unopposed Motion to Enlarge Page Limitation for Plaintiff's Brief in Support of Plaintiff's Application for a Temporary Restraining Order and Preliminary Injunction by Chateau Ritz Partners, Villas at Parkside Partners, Lakeview at Parkside Partners Ltd (Smith, Michael) Modified on 5/17/2007 (cxb). (Entered: 05/16/2007)
70 ORDER: Setting Deadlines as to 60 Motion for TRO, 63 Motion for TRO, 66 Motion for TRO. Pursuant to the court's telephone conference with the parties, any response by Defendant must be filed later than 2:00 p.m. on May 17, 2007, and any reply by Plaintiffs must be filed no later than 2:00 p.m. on May 18, 2007. Motion Hearing, if necessary, set for 5/21/2007 09:00 AM before Judge Sam A Lindsay. (Signed by Judge Sam A Lindsay on 5/16/07) (cxb) (Entered: 05/17/2007)
Minute Entry − Telephone Conference held with Judge Sam A. Lindsay: Attorneys: Plaintiffs − Nina Perales; Kenneth Edwards; Omar Jadwat; James Renard; Forest Nelson; Defense − Matthew Boyle. (Court Reporter: Charyse Crawford.) Time: 40 minutes. NO PDF ATTACHED − THIS IS A VIRTUAL MINUTE ENTRY. (dag) (Entered: 05/17/2007)
71 ORDER granting 69 Motion to Enlarge Page Limits for Plaintiffs' Brief In Support of Plaintiffs' Application for a Temporary Restraining Order and Preliminary Injunction. (Signed by Judge Sam A Lindsay on 5/17/07) (cxb) (Entered: 05/17/2007)
72 *** DISREGARD, see doc. 73. *** REPLY filed by The City of Farmers Branch Texas re 63 MOTION for Temporary Restraining Order (Boyle, Matthew) Modified on 5/17/2007 [Wrong docket event used.] (cxb). (Entered: 05/17/2007)
73 RESPONSE filed by The City of Farmers Branch Texas re 63 MOTION for Temporary Restraining Order (Boyle, Matthew) (Entered: 05/17/2007)
74 Appendix in Support filed by The City of Farmers Branch Texas re 73 Response to Motion (Attachments: # 1 Appendix F−G # 2 Appendix H−I# 3 Appendix J# 4 Appendix K−L) (Boyle, Matthew) Modified on 5/17/2007 (cxb). (Entered: 05/17/2007)
75 Unopposed MOTION for Leave to File Extend Page Limit by The City of Farmers Branch Texas (Boyle, Matthew) (Entered: 05/18/2007)
76 REPLY filed by Chateau Ritz Partners, Villas at Parkside Partners, Lakeview at Parkside Partners Ltd re 66 MOTION for Temporary Restraining Order and Preliminary Injunction (Smith, Michael) (Entered: 05/18/2007)

Case: 3:06-cv-2371 As of: 04/19/2017 04:06 PM CDT 30 of 39

05/18/2007 05/18/2007 05/18/2007 05/21/2007 05/21/2007
05/22/2007
05/22/2007 05/22/2007 05/22/2007

77 REPLY filed by Elizabeth Barrietos, Raymundo Foertes, Monica V Barrientos, Dung Tran, Maria C Perales, Eusebio Eduardo Egusquiza, Aslan Rafizadeh, Adela Reyes, Felipa Zamora, Ana R Montoya, Otto Barrera, Ramon Pacheco, Rafael Garcia, Magdalene Rangel, Sandra Trejo, Juan Sanchez, Oscar Garcia, Tanveer Yousuf, Su You, Belen Ortiz, Alicia Alvarado, Reyna Figueroa, Ana Cecilia Castro, Victorino Calexes, Elva Rodriguez, Martha A Gonzalez, Giovary Garcia, Marta Castillo, Guillermo Gil, Janes Does 1−25, John Does 1−25 re 63 MOTION for Temporary Restraining Order (Nelson, M) (Entered: 05/18/2007)
78 MOTION to Enlarge Page Limitation for Plaintiff's Reply by Chateau Ritz Partners, Villas at Parkside Partners, Lakeview at Parkside Partners Ltd (Attachments: # 1 Text of Proposed Order Proposed Order) (Smith, Michael) Modified on 5/18/2007 (cxb). (Entered: 05/18/2007)
79 REPLY filed by Alfredo Vasquez, Ramiro Perez, Jane Doe #1, Jane Does #2 and 3, and John Does #1 and 2, Jane Doe #4 and John Doe #3, Todd Mongeon, Andrew Mongeon re 60 MOTION for Temporary Restraining Order (Attachments: # 1 Appendix) (Perales, Nina) (Entered: 05/18/2007)
80 ORDER granting 75 Unopposed Motion for Leave to File Extend Page Limititations; granting 78 Motion to Enlarge Page Limitations for Plaintiff's Reply. [see order for specifics] (Signed by Judge Sam A Lindsay on 5/21/07) (cxb) (Entered: 05/21/2007)
81 Memorandum Opinion and Order granting 66 Motion for TRO filed by Lakeview at Parkside Partners Ltd, Chateau Ritz Partners, Villas at Parkside Partners; granting 60 Motion for TRO filed by Jane Does #2 and 3, and John Does #1 and 2, Alfredo Vasquez, Jane Doe #1, Andrew Mongeon, Ramiro Perez, Jane Doe #4 and John Doe #3, Todd Mongeon; denying 63 Motion for TRO filed by Elva Rodriguez, Juan Sanchez, Magdalene Rangel, Ana R Montoya, Rafael Garcia, Elizabeth Barrietos, Victorino Calexes, Belen Ortiz, Felipa Zamora, Guillermo Gil, Alicia Alvarado, Raymundo Foertes, Su You, Ana Cecilia Castro, Tanveer Yousuf, Dung Tran, Aslan Rafizadeh, Ramon Pacheco, Reyna Figueroa, Marta Castillo, John Does 1−25, Giovary Garcia, Sandra Trejo, Eusebio Eduardo Egusquiza, Janes Does 1−25, Oscar Garcia, Maria C Perales, Adela Reyes, Otto Barrera, Martha A Gonzalez, Monica V Barrientos. Accordingly, the court hereby sets a bond in the amount of $1,500 for the Villas Plaintiffs and $1,500 for the Vasquez Plaintiffs. This temporary restraining order shall not take effect until each group of Plaintiffs tenders to the clerk of the court $1,500 cash, or a bond for $1,500 in a form approved by the clerk of the court, in compliance with Rule 65(c) of the Federal Rules of Civil Procedure. [see order for specifics] (Signed by Judge Sam A Lindsay on 5/21/07) (ctf−cxb) (Entered: 05/21/2007)
82 FIRST AMENDED COMPLAINT and Application for Injunctive Relief against The City of Farmers Branch Texas filed by Elizabeth Barrietos, Raymundo Foertes, Monica V Barrientos, Dung Tran, Maria C Perales, Eusebio Eduardo Egusquiza, Aslan Rafizadeh, Adela Reyes, Felipa Zamora, Ana R Montoya, Otto Barrera, Ramon Pacheco, Rafael Garcia, Magdalene Rangel, Sandra Trejo, Juan Sanchez, Oscar Garcia, Tanveer Yousuf, Su You, Belen Ortiz, Alicia Alvarado, Reyna Figueroa, Ana Cecilia Castro, Victorino Calexes, Elva Rodriguez, Martha A Gonzalez, Giovary Garcia, Marta Castillo, Guillermo Gil, Janes Does 1−25, John Does 1−25. (Nelson, M) Modified on 5/23/2007 (cxb). (Entered: 05/22/2007)
NOTICE of Docket Text/Document Modification by Deputy Clerk regarding (83), was docketed in the wrong case, has been deleted. (cxb) (Entered: 05/22/2007)
83 ORDER: Before the court are Plaintiffs' applications for temporary restraining order and preliminary injunction. The court sets Plaintiffs' request for a preliminary injunction for hearing on June 5, 2007, at 9:00 a.m. Defendant may file supplemental materials no later than May 29, 2007 at 5:00 p.m. Defendant's brief may not exceed twenty−five pages. Plaintiffs may respond to Defendant's supplemental materials no later than June 4, 2007 at 12:00 p.m. Plaintiffs' briefs may not exceed ten pages. The Vasquez Plaintiffs are granted leave to file a motion for preliminary injunction. (Signed by Judge Sam A Lindsay on 5/22/07) (cxb) (Entered: 05/23/2007)
84 Cash Bond in the amount of $1,500 posted by Chateau Ritz Partners, Villas at Parkside Partners, Lakeview at Parkside Partners Ltd (Bickel Brewer). (cxb) (Entered: 05/23/2007)

Case: 3:06-cv-2371 As of: 04/19/2017 04:06 PM CDT 31 of 39

05/22/2007
05/23/2007 05/23/2007
05/23/2007
05/23/2007 05/23/2007 05/23/2007 05/24/2007 05/24/2007 05/29/2007 05/29/2007 06/01/2007

Minute Entry − Telephone Conference held with Judge Sam A. Lindsay : Attorney Appearances: Plaintiff − Nina Perales, Kenneth Edwards, James Renard, Forest Nelson, John Barr; Defense − Matthew Boyle, Darrell Noga, John Boyle, Jr., Scott Shanes, Sara Kate Jancaitis, and Mike Hethmon. (Court Reporter: Charyse Crawford.) Time: 30 minutes. NO PDF ATTACHED − THIS IS A VIRTUAL MINUTE ENTRY. (dag) (Entered: 05/31/2007)
85 REPLY filed by The City of Farmers Branch Texas re 27 MOTION to Dismiss for Lack of Jurisdiction and to Dismiss Individual Defendants for Failure to State a Claim (Boyle, Matthew) (Entered: 05/23/2007)
86 MOTION for Leave to File Amended Complaint by Elizabeth Barrientos, Raymundo Foertes, Monica V Barrientos, Dung Tran, Maria C Perales, Eusebio Eduardo Egusquiza, Aslan Rafizadeh, Adela Reyes, Felipa Zamora, Ana R Montoya, Otto Barrera, Ramon Pacheco, Rafael Garcia, Magdalene Rangel, Sandra Trejo, Juan Sanchez, Oscar Garcia, Tanveer Yousuf, Su You, Belen Ortiz, Alicia Alvarado, Reyna Figueroa, Ana Cecilia Castro, Victorino Calexes, Elva Rodriguez, Martha A Gonzalez, Giovary Garcia, Marta Castillo, Guillermo Gil, Janes Does 1−25, John Does 1−25 (Attachments: # 1 Text of Proposed Order) (Nelson, M) (Entered: 05/23/2007)
87 MOTION for Leave to File Amended Application for Injunctive Relief by Elizabeth Barrientos, Raymundo Foertes, Monica V Barrientos, Dung Tran, Maria C Perales, Eusebio Eduardo Egusquiza, Aslan Rafizadeh, Adela Reyes, Felipa Zamora, Ana R Montoya, Otto Barrera, Ramon Pacheco, Rafael Garcia, Magdalene Rangel, Sandra Trejo, Juan Sanchez, Oscar Garcia, Tanveer Yousuf, Su You, Belen Ortiz, Alicia Alvarado, Reyna Figueroa, Ana Cecilia Castro, Victorino Calexes, Elva Rodriguez, Martha A Gonzalez, Giovary Garcia, Marta Castillo, Guillermo Gil, Janes Does 1−25, John Does 1−25 (Attachments: # 1 Text of Proposed Order) (Nelson, M) (Entered: 05/23/2007)
88 Cash Bond in the amount of $1,500 posted by Vasquez plaintiffs (Weil Gotshal Manges). (cxb) (Entered: 05/24/2007)
91 Application and Order for Admission Pro Hac Vice by Andrew R Swartz for Alfredo Vasquez, Ramiro Perez, Jane Doe 1, Jane Does 2 and 3 and John Does 1 and 2, Todd Mongeon, and Andrew Mongeon. (Signed by Judge Sam A Lindsay on 05/23/2007) (axm) (Entered: 05/25/2007)
92 Application and Order for Admission Pro Hac Vice by David J Healey for Alfredo Vasquez,Ramiro Perez, Jane Doe 1, Jane Does 2 and 3 and John Does 1 and 2, Todd Mongeon, and Andrew Mongeon. (Signed by Judge Sam A Lindsay on 05/23/2007) (axm) (Entered: 05/25/2007)
89 Unopposed MOTION to Withdraw 44 MOTION to Quash Plaintiffs' Notice of Deposition by Federation for American Immigration Reform Inc (Attachments: # 1 Text of Proposed Order) (Jancaitis, Sara Kate) (Entered: 05/24/2007)
90 MOTION for Injunction Preliminary Injunction by Alfredo Vasquez, Ramiro Perez, Jane Doe #1, Jane Does #2 and 3, and John Does #1 and 2, Jane Doe #4 and John Doe #3, Todd Mongeon, Andrew Mongeon (Attachments: # 1 Text of Proposed Order) (Perales, Nina) (Entered: 05/24/2007)
93 ORDER granting 89 Motion to Withdraw 44 Motion to Quash Plaintiffs' Notice of Deposition. Further ORDERED that the hearing on the Motion to Quash, previously scheduled for 9:30 a.m. on Wednesday, May 30, 2007 before Magistrate Judge Sanderson, is hereby withdrawn from the Court's calendar. (Signed by Judge Wm F Sanderson Jr on 5/29/07) (cxb) (Entered: 05/29/2007)
94 SUPPLEMENTAL RESPONSE filed by The City of Farmers Branch Texas re 66 MOTION for Temporary Restraining Order and Preliminary Injunction (Attachments: # 1 Appendix) (Boyle, Matthew) Modified on 5/30/2007 (cxb). (Entered: 05/29/2007)
95 MOTION to Withdraw as Attorney of Katharine J. Caplan by Alfredo Vasquez, Ramiro Perez, Jane Doe #1, Jane Does #2 and 3, and John Does #1 and 2, Todd Mongeon, Andrew Mongeon (Attachments: # 1 Text of Proposed Order) (Healey, David) (Entered: 06/01/2007)

Case: 3:06-cv-2371 As of: 04/19/2017 04:06 PM CDT 32 of 39

06/01/2007
06/04/2007
06/04/2007 06/04/2007 06/04/2007
06/04/2007 06/05/2007 06/05/2007 06/05/2007 06/06/2007

101 Memorandum Opinion and Order denying Motion of Federation of American Immigration Reform, Inc. for Leave to Intervene as Defendant and to File an Answer, filed January 26, 2007; granting Defendant City of Farmers Branch's Rule 12(b)(1)and 12(b)(6) Motion to Dismiss, filed March 8, 2007; granting 40 [Villas] Plaintiffs' Unopposed Motion to Enlarge Time to Respond to Defendant's Motion to Dismiss, filed April 17, 2007; granting 86 [Barrientos] Plaintiffs' Motion for Leave to File Amended Complaint, filed May 23, 2007; denying as moot 87 [Barrientos] Plaintiffs' Motion for Leave to File Amended Application for Injunctive Relief, filed May 23, 2007; granting 95 Motion to Withdraw as Counsel, filed June 1, 2007. [see order for specifics] (Signed by Judge Sam A Lindsay on 6/1/07) (cxb) (Entered: 06/04/2007)
96 SUPPLEMENTAL REPLY filed by Elizabeth Barrientos, Raymundo Foertes, Monica V Barrientos, Dung Tran, Maria C Perales, Eusebio Eduardo Egusquiza, Aslan Rafizadeh, Adela Reyes, Felipa Zamora, Ana R Montoya, Otto Barrera, Ramon Pacheco, Rafael Garcia, Magdalene Rangel, Sandra Trejo, Juan Sanchez, Oscar Garcia, Tanveer Yousuf, Su You, Belen Ortiz, Alicia Alvarado, Reyna Figueroa, Ana Cecilia Castro, Victorino Calexes, Elva Rodriguez, Martha A Gonzalez, Giovary Garcia, Marta Castillo, Guillermo Gil, Janes Does 1−25, John Does 1−25 re 63 MOTION for Temporary Restraining Order (Nelson, M) Modified on 6/5/2007 (cxb). (Entered: 06/04/2007)
97 SUPPLEMENTAL Brief/Memorandum in Support filed by Chateau Ritz Partners, Villas at Parkside Partners, Lakeview at Parkside Partners Ltd re 66 MOTION for Temporary Restraining Order and Preliminary Injunction (Smith, Michael) Modified on 6/5/2007 (cxb). (Entered: 06/04/2007)
98 MOTION for Leave to File Amicus Brief in Support of Plaintiffs' Motions for Preliminary Injuction by Texas Apartment Association (Attachments: # 1 Exhibit Amicus Brief). Party Texas Apartment Association added. (Eberstein, Brian) (Entered: 06/04/2007)
99 MOTION for Temporary Restraining Order and Preliminary Injunction by Elizabeth Barrientos, Raymundo Foertes, Monica V Barrientos, Dung Tran, Maria C Perales, Eusebio Eduardo Egusquiza, Aslan Rafizadeh, Adela Reyes, Felipa Zamora, Ana R Montoya, Otto Barrera, Ramon Pacheco, Rafael Garcia, Magdalene Rangel, Sandra Trejo, Juan Sanchez, Oscar Garcia, Tanveer Yousuf, Su You, Belen Ortiz, Alicia Alvarado, Reyna Figueroa, Ana Cecilia Castro, Victorino Calexes, Elva Rodriguez, Martha A Gonzalez, Giovary Garcia, Marta Castillo, Guillermo Gil, Janes Does 1−25, John Does 1−25 (Nelson, M) (Entered: 06/04/2007)
100 RESPONSE filed by Alfredo Vasquez, Ramiro Perez, Jane Doe #1, Jane Does #2 and 3, and John Does #1 and 2, Jane Doe #4 and John Doe #3, Todd Mongeon, Andrew Mongeon re 94 SUPPLEMENTAL RESPONSE to Motion for Preliminary Injunction (Attachments: # 1 Appendix) (Perales, Nina) Modified on 6/5/2007 (cxb). (Entered: 06/04/2007)
102 ORDER: the parties have requested the opportunity to present additional supplemental briefing regarding some materials presented by Defendant for the first time at the hearing. The court hereby extends the temporary restraining order until June 19, 2007, with all provisions remaining in effect. Plaintiffs' brief must be filed no later than June 8, 2007 at 5:00 p.m. Defendants' response, if any, must be filed no later than June 11, 2007 at 5:00 p.m. [see order for specifics] (Signed by Judge Sam A Lindsay on 6/5/07) (cxb) (Entered: 06/05/2007)
Minute Entry for proceedings held before Judge Sam A. Lindsay: Preliminary Injunction Hearing held on 6/5/2007. Attorney Appearances: Plaintiff − Nina Perales, Kenneth W. Edwards, Marisol Perez, Jim Renard, and Brian Eberstein; Defense − Matthew Boyle, Darrell Noga, John F. Boyle, Jr., Michael K. Kallas, and Kristy Orr. (Court Reporter: Charyse Crawford) Time in Court: 2 hours and 55 minutes. NO PDF ATTACHED − THIS IS A VIRTUAL MINUTE ENTRY. (dag) (Entered: 06/05/2007)
104 NOTICE of Attorney Appearance by Charles T Frazier, Jr, D Paul Dalton on behalf of The City of Farmers Branch Texas. (cxb) (Entered: 06/07/2007)
103 ORDER granting 98 Texas Apartment Association's Motion for Leave to File Amicus Brief. Amicus brief due by 6/8/2007 5:00 p.m. If Federation of American Immigration Reform, Inc. desires to file an amicus brief relating to the applications for preliminary

Case: 3:06-cv-2371 As of: 04/19/2017 04:06 PM CDT 33 of 39

06/08/2007 06/08/2007
06/11/2007 06/11/2007
06/19/2007 06/26/2007
07/31/2007
08/15/2007 08/16/2007 08/31/2007 08/31/2007 09/24/2007

injunction now pending before the court, the court grants FAIR leave to file an amicus brief, and FAIR must file any such brief no later than June 11, 2007 at 5:00 p.m. No further filings regarding the pending applications for preliminary injunction will be allowed. [see order for specifics] (Signed by Judge Sam A Lindsay on 6/6/07) (cxb) (Entered: 06/07/2007)
105 AMICUS BRIEF filed by Texas Apartment Association re 82 Amended Complaint. (Eberstein, Brian) Modified on 6/11/2007 (cxb). (Entered: 06/08/2007)
106 CONSOLIDATED RESPONSE filed by Chateau Ritz Partners, Alfredo Vasquez, Ramiro Perez, Jane Doe #1, Jane Does #2 and 3, and John Does #1 and 2, Jane Doe #4 and John Doe #3, Todd Mongeon, Andrew Mongeon, Villas at Parkside Partners, Lakeview at Parkside Partners Ltd re 66 MOTION for Temporary Restraining Order and Preliminary Injunction, 90 MOTION for Injunction Preliminary Injunction in Response to Defendant's Exhibits (Attachments: # 1 Appendix # 2 Appendix A−C# 3 Appendix D−G) (Perales, Nina) Modified on 6/11/2007 (cxb). (Entered: 06/08/2007)
107 REPLY filed by The City of Farmers Branch Texas re 106 Response to Defendants Exhibits. (Boyle, Matthew) Modified on 6/12/2007 (cxb). (Entered: 06/11/2007)
108 TRANSCRIPT of Preliminary Injunction Hearing Proceedings held on 06/05/2007 before Judge Sam A Lindsay. Court Reporter Name/Phone Number: Charyse Crawford at 214/753−2373. District Clerk Phone Number: 214/753−2200. ***The Official Record of the transcript is on file with the clerk's office. Contact either the clerk's office or the court reporter at phone numbers listed above to obtain a copy of the Official Record.*** (axm) Additional attachment(s) added on 6/19/2007 (axm). (Entered: 06/13/2007)
109 MEMORANDUM OPINION AND ORDER: granting 66 Motion for Temporary Restraining Order; granting 90 Motion for Preliminary Injunction. The court determines that the bond originally posted by Plaintiffs is sufficient, and declines to increase the bond amount. [see order for specifics] (Signed by Judge Sam A Lindsay on 6/19/07) (cxb) (Entered: 06/19/2007)
110 Memorandum Opinion and Order denying without prejudice 38 Motion to Dismiss [Villas Plaintiffs' Second Amended Complaint] filed by The City of Farmers Branch Texas; and Defendant City of Farmers Branch, Texas' Motion to Dismiss [Vasquez Plaintiffs' First Amended Complaint] for Plaintiffs' Failure to State a Claim and Lack of Subject Matter Jurisdiction, filed April 13, 2007. (see order for specifics) (Signed by Judge Sam A Lindsay on 06/26/2007) (axm) (Entered: 06/27/2007)
111 ORDER: No later than August 31, 2007 at 5:00 p.m., the city of Farmers Branch shall file a motion pursuant to Rule 12(b)(6) or Rule 56 of the Federal Rules of Civil Procedure on the issue of damages and whether the Villas Plaintiffs are entitled to compensatory damages based upon the circumstances of this case. The parties shall not engage in discovery in this case until further order of the court. (Signed by Judge Sam A Lindsay on 7/31/07) (skt) (Entered: 08/01/2007)
112 MOTION to Substitute Attorney. Added attorney William Trey C Dowdy, III and William Trey C Dowdy, III for The City of Farmers Branch Texas and Bob Phelps. Motion Filed by The City of Farmers Branch Texas, Bob Phelps, Tim O'Hare, Bill Moses, James Smith, Ben Robinson, Jim Olk (Dowdy, William Trey) (Entered: 08/15/2007)
113 ORDER granting 112 Motion to Substitute Attorney. (Signed by Judge Sam A Lindsay on 8/16/07) (npk) (Entered: 08/16/2007)
114 Defendants' MOTION to Dismiss Villas Plaintiffs' Claims for Compensatory Damages by The City of Farmers Branch Texas (Dowdy, William Trey) Modified on 9/4/2007 (skt). (Entered: 08/31/2007)
115 Brief/Memorandum in Support filed by The City of Farmers Branch Texas re 114 MOTION to Dismiss (Dowdy, William Trey) (Entered: 08/31/2007)
116 RESPONSE in Opposition filed by Chateau Ritz Partners, Villas at Parkside Partners, Lakeview at Parkside Partners Ltd re 114 MOTION to Dismiss Villas Plaintiffs' Claims for Compensatory Damages. (Biles, C) Modified on 9/25/2007 (lmp). (Entered: 09/24/2007)

Case: 3:06-cv-2371 As of: 04/19/2017 04:06 PM CDT 34 of 39

09/24/2007 10/09/2007 10/09/2007 10/19/2007 12/11/2007
12/27/2007 01/04/2008 01/04/2008 01/24/2008 01/28/2008 02/15/2008 02/15/2008 02/19/2008 02/22/2008

117 Appendix in Support filed by Chateau Ritz Partners, Villas at Parkside Partners, Lakeview at Parkside Partners Ltd re 116 Response in Opposition to Motion to Dismiss Villas Plaintiffs' Claims for Compensatory Damages. (Biles, C) Modified on 9/25/2007 (lmp). (Entered: 09/24/2007)
118 Defendants' Objection and MOTION to Strike Plaintiffs' 116 Response in Opposition and Supporting Brief in Opposition to Defendants' Motion to Dismiss Villas Plaintiffs' Claims for Compensatory Damages by The City of Farmers Branch Texas, Bob Phelps, Tim O'Hare, Bill Moses, Charlie Bird, James Smith, Ben Robinson, Jim Olk. (Masso, Jadd) Modified text on 10/10/2007 (axm). (Entered: 10/09/2007)
119 REPLY Brief in Support of their 114 MOTION to Dismiss Villas Plaintiffs' Claims for Compensatory Damages filed by The City of Farmers Branch Texas, Bob Phelps, Tim O'Hare, Bill Moses, Charlie Bird, James Smith, Ben Robinson, Jim Olk. (Masso, Jadd) Modified text on 10/10/2007 (axm). (Entered: 10/09/2007)
120 MOTION for Extension of Time to File Response/Reply as to 114 MOTION to Dismiss by Villas at Parkside Partners, Lakeview at Parkside Partners Ltd, Chateau Ritz Partners. (Attachments: # 1 Appendix # 2 Declaration) (Biles, C) Modified on 10/22/2007 (npk) (Entered: 10/19/2007)
121 Memorandum Opinion and Order granting 114 Defendants' Motion to Dismiss Villas Plaintiffs' Claims for Compensatory Damages; denying 118 Defendants' Motion to Strike Plaintiffs' Response in Opposition; granting 120 Plaintiffs' Motion for Enlargement of Time to File Their Response to Defendant's Motion to Dismiss Villas Plaintiffs' Claims for Compensatory Damages. The Villas Plaintiffs' claims for compensatory damages are dismissed with prejudice. (see order for specifics) (Signed by Judge Sam A Lindsay on 12/11/2007) (tln) (Entered: 12/11/2007)
122 ORDER: Accordingly, the parties may file dispositive motions no later than January 18, 2008. Any response or reply must be filed within the deadlines set forth in Local Rule 7.1(e). The court also determines that the page limitations in Local Rule 56.5(b) apply collectively to each side. (Signed by Judge Sam A Lindsay on 12/27/2007) (tln) (Entered: 12/27/2007)
123 Joint MOTION to Extend Time to file dispositive motions by Chateau Ritz Partners, Alfredo Vasquez, Ramiro Perez, Jane Doe #1, Jane Does #2 and 3, and John Does #1 and 2, Jane Doe #4 and John Doe #3, Todd Mongeon, Andrew Mongeon, The City of Farmers Branch Texas, Villas at Parkside Partners, Lakeview at Parkside Partners Ltd (Attachments: # 1 Text of Proposed Order) (Perales, Nina) (Entered: 01/04/2008)
124 ORDER granting 123 Plaintiffs' and Defendant's Joint Motion to Extend Time to File Dispositive Motions. Motions due by 2/22/2008. (Signed by Judge Sam A Lindsay on 1/4/08) (klm) (Entered: 01/07/2008)
125 NOTICE by Alfredo Vasquez COURT ADVISORY (Attachments: # 1 Exhibit A) (Perales, Nina) (Entered: 01/24/2008)
126 MOTION for Leave to File Original Counterclaim for Declaratory Judgment by The City of Farmers Branch Texas (Attachments: # 1 Exhibit Exhibit A − Counterclaim for Declaratory Judgment) (Masso, Jadd) (Entered: 01/28/2008)
127 RESPONSE and Brief in Opposition filed by Chateau Ritz Partners, Villas at Parkside Partners, Lakeview at Parkside Partners Ltd re 126 MOTION for Leave to File Original Counterclaim for Declaratory Judgment. (Biles, C) Modified on 2/19/2008 (tln). Modified on 2/19/2008 (tln). (Entered: 02/15/2008)
128 Appendix in Support filed by Chateau Ritz Partners, Villas at Parkside Partners, Lakeview at Parkside Partners Ltd re 127 RESPONSE and Brief in Opposition (Biles, C) Modified on 2/19/2008 (tln). (Entered: 02/15/2008)
129 RESPONSE filed by Alfredo Vasquez, Ramiro Perez, Jane Doe #1, Jane Does #2 and 3, and John Does #1 and 2, Todd Mongeon, Andrew Mongeon re 126 MOTION for Leave to File Original Counterclaim for Declaratory Judgment (Perales, Nina) (Entered: 02/19/2008)
130 MOTION for Summary Judgment by The City of Farmers Branch Texas with Brief/Memorandum in Support. (Masso, Jadd) Modified on 2/22/2008 (skt). (Entered:

Case: 3:06-cv-2371 As of: 04/19/2017 04:06 PM CDT 35 of 39

02/22/2008
02/22/2008 02/22/2008
03/03/2008 03/13/2008 03/13/2008 03/13/2008 03/13/2008 03/19/2008
03/19/2008 03/28/2008 03/28/2008 03/31/2008 04/08/2008 04/08/2008 04/23/2008 04/23/2008

02/22/2008)
131 Appendix in Support filed by The City of Farmers Branch Texas re 130 MOTION for Summary Judgment (Attachments: # 1 Exhibit A, # 2 Exhibit B (part 1 of 5), # 3 Exhibit B (part 2 of 5), # 4 Exhibit B (part 3 of 5), # 5 Exhibit B (part 4 of 5), # 6 Exhibit B (part 5 of 5), # 7 Exhibit C (part 1 of 2), # 8 Exhibit C (part 2 of 2), # 9 Exhibit D, # 10 Exhibit E) (Masso, Jadd) (Entered: 02/22/2008)
132 MOTION for Partial Summary Judgment by Alfredo Vasquez, Villas at Parkside Partners (Perales, Nina) Modified on 2/25/2008 (jrb). (Entered: 02/22/2008)
133 Brief/Memorandum in Support filed by Alfredo Vasquez, Villas at Parkside Partners re 132 MOTION for Summary Judgment Part 1 and Part 2 (Attachments: # 1 MEMORANDUM_PART 2, # 2 Appendix, # 3 Exhibit A−E, # 4 Exhibit F_ Part 1, # 5 Exhibit F_Part 2, # 6 Exhibit G) (Perales, Nina) (Entered: 02/22/2008)
134 REPLY filed by The City of Farmers Branch Texas re 126 MOTION for Leave to File Original Counterclaim for Declaratory Judgment (Masso, Jadd) (Entered: 03/03/2008)
135 RESPONSE filed by Alfredo Vasquez (Vasquez Plaintiffs) re 130 MOTION for Summary Judgment and Brief in Support (Perales, Nina) Modified on 3/17/2008 (klm). (Entered: 03/13/2008)
136 RESPONSE in Opposition filed by The City of Farmers Branch Texas re 132 MOTION for Summary Judgment (Masso, Jadd) (Entered: 03/13/2008)
137 RESPONSE filed by Villas at Parkside Partners re 130 MOTION for Summary Judgment and Brief in Support and Brief In Opposition (Biles, C) (Entered: 03/13/2008)
138 Appendix in Support filed by Villas at Parkside Partners re 137 Response to Motion for Summary Judgment (Biles, C) (Entered: 03/13/2008)
139 ***WITHDRAWN PER ORDER (doc 151)***MOTION for Order to Show Cause Why Defendant Should Not be Adjudged in Civil Contempt and Sanctioned for Violating the Preliminary Injunction Entered by this Court on June 19, 2007 and Brief in Support by Chateau Ritz Partners, Villas at Parkside Partners, Lakeview at Parkside Partners Ltd. (Biles, C) Modified on 3/20/2008 (skt). Modified on 5/16/2008 (axm). (Entered: 03/19/2008)
140 Appendix in Support filed by Chateau Ritz Partners, Villas at Parkside Partners, Lakeview at Parkside Partners Ltd re 139 MOTION for Order to Show Cause (Biles, C) (Entered: 03/19/2008)
141 Agreed MOTION for Extension of Time to File Response/Reply Brief In Support of Plaintiffs' Motion for Partial Summary Judgment by Chateau Ritz Partners, Villas at Parkside Partners, Lakeview at Parkside Partners Ltd (Biles, C) (Entered: 03/28/2008)
142 ORDER granting 141 Plaintiffs' Motion to Extend Time to File Response/Reply. Replies due by 3/31/2008. (Signed by Judge Sam A Lindsay on 3/28/08) (tln) (Entered: 03/28/2008)
143 Plaintiffs' Reply Brief in Support of 132 Plaintiffs' Motion for Partial Summary Judgment filed by Villas at Parkside Partners. (Biles, C) Modified on 4/1/2008 (axm). (Entered: 03/31/2008)
144 RESPONSE and Brief in Opposition filed by The City of Farmers Branch Texas to 139 Plaintiffs' Motion for Order to Show Cause (Shanes, Scott) Modified on 4/8/2008 (skt). (Entered: 04/08/2008)
145 Appendix in Support filed by The City of Farmers Branch Texas re 144 Response in Opposition Appendix to Defendant's Response and Brief in Opposition to Plaintiffs' Motion for Order to Show Cause (Shanes, Scott) (Entered: 04/08/2008)
146 Agreed MOTION for Extension of Time to File Response/Reply by Chateau Ritz Partners, Villas at Parkside Partners (Biles, C) (Entered: 04/23/2008)
147 ORDER granting 146 Agreed MOTION for Extension of Time to File Response/Reply. Replies due by 4/30/2008. (Signed by Judge Sam A Lindsay on

Case: 3:06-cv-2371 As of: 04/19/2017 04:06 PM CDT 36 of 39

04/29/2008 05/01/2008 05/14/2008 05/16/2008 05/28/2008 05/28/2008
05/29/2008
05/29/2008
06/05/2008 06/06/2008 06/06/2008 06/10/2008

4/23/08) (npk) (Entered: 04/24/2008)
148 Agreed MOTION for Extension of Time to File Response/Reply In Support of Plaintiffs' Motion for Order to Show Cause by Chateau Ritz Partners, Villas at Parkside Partners (Biles, C) (Entered: 04/29/2008)
149 ORDER Granting 148 Motion to Extend Time to File Response/Reply. Deadline for Plaintiffs to file their reply to Defendants Response in Opposition of Plaintiffs Motion for Order to Show Cause is hereby extended to Wednesday, May 14, 2008. No further extensions of this deadline will be granted. (Signed by Judge Sam A Lindsay on 5/1/08) (svc) (Entered: 05/02/2008)
150 NOTICE of Withdrawal of Plaintiffs' Motion for Order to Show Cause re: 139 MOTION for Order to Show Cause Why Defendant Should Not be Adjudged in Civil Contempt and Sanctioned for Violating the Preliminary Injunction Entered by this Court on June 19, 2007 and Brief in Support filed by Chateau Ritz Partners, Villas at Parkside Partners, Lakeview at Parkside Partners Ltd (Biles, C) (Entered: 05/14/2008)
151 ORDER. Pursuant to the Notice of Withdrawal of Plaintiffs' Motion for Order to Show Cause, filed May 14, 2008, the Villas Plaintiffs have withdrawn their motion; accordingly, that motion is now moot, and no further action is required by the court. (Signed by Judge Sam A Lindsay on 5/16/08) (npk) (Entered: 05/16/2008)
152 Memorandum Opinion and Order denying 126 Defendant's Motion for Leave to File Defendant's Original Counterclaim for Declaratory Judgment. (See Order) (Signed by Judge Sam A Lindsay on 5/28/08) (skt) (Entered: 05/28/2008)
153 Memorandum Opinion and Order granting 132 Plaintiffs' Motion for Partial Summary Judgment filed by Alfredo Vasquez, Villas at Parkside Partners. The court therefore orders that the City of Farmers Branch, Texas, and its officers, agents, servants, employees, representatives, and attorneys, are hereby permanently enjoined and prohibited from effectuating or enforcing Ordinance 2903. Accordingly, the court dissolves the bond and directs the clerk of the court to return these bonds to the Villas Plaintiffs and the Vasquez Plaintiffs. (see order) (Signed by Judge Sam A Lindsay on 5/28/2008) (axm) (Entered: 05/28/2008)
154 ORDER: The court held a telephonic conference with the parties on May 29, 2008 regarding the status of this case. Pursuant to the discussion during the conference, the court will allow the parties to brief it regarding Plaintiffs' remaining claims and whether it is appropriate to enter judgment in this case. Plaintiffs' Brief due by 6/30/2008. Responses due by 6/16/2008. Replies due by 6/20/2008. (Signed by Judge Sam A Lindsay on 5/29/2008) (axm) (Entered: 05/29/2008)
Minute Entry for proceedings held before Judge Sam A Lindsay: Telephone Conference. Attorney Appearances: Plaintiff − James Renard, Dunham Biles, Marisol Perez, Nina Perales, Kenneth Edwards, Lisa Graybill, and Jennifer Chang; Defense − William C. Dowdy, III and Peter Michael Jung. (Court Reporter − Charyse Crawford.) Time in Court: 25 minutes. NO PDF ATTACHED − THIS IS A VIRTUAL MINUTE ENTRY. (dag) (Entered: 05/29/2008)
155 Agreed MOTION to Extend Time to File Brief filed by Chateau Ritz Partners, Villas at Parkside Partners, Lakeview at Parkside Partners Ltd . (Biles, C) Modified on 6/6/2008 (npk). Modified on 6/9/2008/Added filer (cxb). (Entered: 06/05/2008)
156 MOTION Certification of Partial Final Judgment Pursuant to FRCP 54(b) filed by Alfredo Vasquez with Brief/Memorandum in Support. (Attachments: # 1 Text of Proposed Order) (Perales, Nina) (Entered: 06/06/2008)
157 ORDER granting 155 Agreed Motion Enlarging Villas Plaintiffs' Time to File Brief. Villas Plaintiffs' deadline to file their brief is extended until June 10, 2008 at 5:00 p.m. Defendant's response must be filed no later than June 20, 2008 at 5:00 p.m., and Plaintiffs' replies must be filed no later than June 26, 2008 at 5:00 p.m. (Signed by Judge Sam A Lindsay on 6/6/2008) (axm) (Entered: 06/06/2008)
158 Brief in Support of Rendition of Final Judgment filed by Chateau Ritz Partners, Villas at Parkside Partners, Lakeview at Parkside Partners Ltd re 154 Order. (Biles, C) Modified on 6/23/2008 (axm). (Entered: 06/10/2008)

Case: 3:06-cv-2371 As of: 04/19/2017 04:06 PM CDT 37 of 39

06/20/2008 06/26/2008 06/26/2008 06/26/2008
06/27/2008 06/30/2008 06/30/2008 07/10/2008 07/11/2008 08/29/2008
08/29/2008
09/04/2008 09/05/2008 09/10/2008 09/10/2008 09/26/2008 09/26/2008

159 Brief/Memorandum in Support filed by The City of Farmers Branch Texas re 154 Order,, Set Motion and F&R Deadlines, (Masso, Jadd) (Entered: 06/20/2008)
160 Agreed MOTION for Extension of Time to File Response/Reply Brief and To Enlarge the Page Limit filed by Chateau Ritz Partners, Villas at Parkside Partners, Lakeview at Parkside Partners Ltd (Biles, C) (Entered: 06/26/2008)
161 Vasquez Plaintiffs' REPLY re: 156 MOTION Certification of Partial Final Judgment Pursuant to FRCP 54(b) filed by Alfredo Vasquez (Perales, Nina) (Entered: 06/26/2008)
162 ORDER granting 160 Agreed Motion to Extend Villas Plaintiffs' Time to File Reply Brief and to Enlarge the Page Limit. Accordingly, the Villas Plaintiffs' deadline to file their reply brief, which may not exceed five pages, is extended until June 30, 2008 at 5:00 p.m. (Signed by Judge Sam A Lindsay on 6/26/08) (skt) (Entered: 06/27/2008)
163 Notice of Correction of Signature Omission, correcting signature omission in 161 Reply to Response to Motion filed by Alfredo Vasquez. (Perales, Nina) (Entered: 06/27/2008)
164 Reply Brief filed by Chateau Ritz Partners, Villas at Parkside Partners, Lakeview at Parkside Partners Ltd in Opposition to Entry of Final Judgment (Biles, C) Modified on 7/1/2008 (skt). (Entered: 06/30/2008)
165 Appendix in Support filed by Chateau Ritz Partners, Villas at Parkside Partners, Lakeview at Parkside Partners Ltd re 164 Brief/Memorandum in Support of Motion (Biles, C) (Entered: 06/30/2008)
166 MOTION to Withdraw as Attorney David Herrera Urias filed by Alfredo Vasquez (Attachments: # 1 Text of Proposed Order) (Hinojosa, David) (Entered: 07/10/2008)
167 ORDER granting 166 Motion to Withdraw as Attorney. Attorney David H Urias terminated. (see order) (Signed by Judge Sam A Lindsay on 7/11/08) (tln) (Entered: 07/11/2008)
168 Memorandum Opinion and Order denying 130 Defendant's Motion for Summary Judgment, denying 156 Plaintiff's Motion for Certification of Partial Final Judgment. Plaintiffs' state law claim and dismisses it without prejudice. Judgment will issue by separate document as required by Rule 58 of the Federal Rules of Civil Procedure. (see order) (Signed by Judge Sam A Lindsay on 8/29/2008) (axm) (Entered: 08/29/2008)
169 JUDGMENT: The City of Farmers Branch, Texas, and its officers, agents, servants, employees, representatives, and attorneys are hereby permanently enjoined and prohibited from effectuating or enforcing Ordinance 2903. (see order) (Signed by Judge Sam A Lindsay on 8/29/2008) (axm) (Entered: 08/29/2008)
170 MOTION to Extend Time to File Request for Attorneys Fees and Costs filed by Alfredo Vasquez (Attachments: # 1 Text of Proposed Order) (Perales, Nina) (Entered: 09/04/2008)
171 ORDER granting 170 Opposed Motion for Extension of Time to File Request for Attorney's Fees and Costs and is hereby extended to 09/26/2008. (Signed by Judge Sam A Lindsay on 9/5/2008) (axm) (Entered: 09/05/2008)
172 Unopposed MOTION for Extension of Time to File Application for Attorneys' Fees and Costs filed by Chateau Ritz Partners, Villas at Parkside Partners, Lakeview at Parkside Partners Ltd (Biles, C) (Entered: 09/10/2008)
173 ORDER granting 172 Plaintiffs' Unopposed MOTION for Extension of Time to File Application for Attorneys' Fees and Costs. See order (Signed by Judge Sam A Lindsay on 9/10/08) (svc) (Entered: 09/11/2008)
174 BILL OF COSTS by Chateau Ritz Partners, Villas at Parkside Partners, Lakeview at Parkside Partners Ltd. (Biles, C) (Entered: 09/26/2008)
175 MOTION for Attorney Fees and Costs filed by Chateau Ritz Partners, Villas at Parkside Partners, Lakeview at Parkside Partners Ltd with Brief/Memorandum in Support. (Biles, C) (Entered: 09/26/2008)

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09/26/2008
09/26/2008 09/26/2008
09/30/2008 09/30/2008 09/30/2008 10/01/2008
10/02/2008
10/16/2008
10/17/2008 10/30/2008 10/30/2008 10/30/2008 10/30/2008 11/12/2008
11/13/2008
11/14/2008

176 Appendix in Support filed by Chateau Ritz Partners, Villas at Parkside Partners, Lakeview at Parkside Partners Ltd re 175 MOTION for Attorney Fees and Costs (Attachments: # 1 Affidavit of James Renard, # 2 Affidavit James Renard, # 3 Affidavit James Renard, # 4 Affidavit C. Dunham Biles, # 5 Affidavit C. Dunham Biles, # 6 Affidavit F. Finn Declaration) (Biles, C) (Entered: 09/26/2008)
177 BILL OF COSTS by Alfredo Vasquez. (Perales, Nina) (Entered: 09/26/2008)
178 MOTION for Attorney Fees filed by Alfredo Vasquez with Brief/Memorandum in Support. (Attachments: # 1 Exhibit part 1 of 5, # 2 Exhibit part 2 of 5, # 3 Exhibit part 3 of 5, # 4 Exhibit part 4 of 5, # 5 Exhibit part 5 of 5, # 6 Appendix, # 7 Text of Proposed Order) (Perales, Nina) (Entered: 09/26/2008)
179 Unopposed MOTION for Extension of Time to File Response/Reply re: 178 MOTION for Attorney Fees, 175 MOTION for Attorney Fees and Costs filed by The City of Farmers Branch Texas (Masso, Jadd) (Entered: 09/30/2008)
180 Costs Taxed in amount of $ 1376.00 against The City of Farmers Branch. (axm) (Entered: 10/01/2008)
181 Costs Taxed in amount of $ 598.82 against The City of Farmers Branch. (axm) (Entered: 10/01/2008)
182 ORDER granting 179 Defendant's Unopposed Motion for Extension of Time to File Responses to Plaintiffs' Applications for Attorneys' Fees and Costs. Responses due by 10/30/2008. (Signed by Judge Sam A Lindsay on 10/1/08) (klm) (Entered: 10/02/2008)
183 MOTION to Substitute Exhibit 6 to Their Motion for Reasonable Attorneys' Fees and Costs and Memorandum in Support re 178 MOTION for Attorney Fees filed by Alfredo Vasquez (Attachments: # 1 Text of Proposed Order, # 2 Exhibit A) (Perales, Nina) Modified on 10/3/2008 (jrb). (Entered: 10/02/2008)
184 ORDER granting 183 Motion to Substitute Exhibit 6 to Their Motion for Reasonable Attorneys' Fees and Costs re 178 MOTION for Attorney Fees. The court orders the Vasquez Plaintiffs to file the substitute exhibit within three business days of this order. See Order (Ordered by Judge Sam A Lindsay on 10/16/08) (svc) (Entered: 10/17/2008)
185 Supplemental by Alfredo Vasquez to 178 MOTION for Attorney Fees. Exhibit 6 to Vasquez Plaintiffs' Application for Attorneys' Fees and Costs. (Perez, Marisol) Modified on 10/20/2008 (svc). (Entered: 10/17/2008)
186 RESPONSE filed by The City of Farmers Branch Texas re 178 MOTION for Attorney Fees (Dowdy, William Trey) (Entered: 10/30/2008)
187 Appendix in Support filed by The City of Farmers Branch Texas re 186 Response to Motion for Attorney Fees (Dowdy, William Trey) (Entered: 10/30/2008)
188 RESPONSE filed by The City of Farmers Branch Texas re 175 MOTION for Attorney Fees and Costs (Dowdy, William Trey) (Entered: 10/30/2008)
189 Appendix in Support filed by The City of Farmers Branch Texas re 188 Response to Motion for Attorney Fees and Costs (Dowdy, William Trey) (Entered: 10/30/2008)
190 Unopposed MOTION to Extend Time to file Reply in Support of 175 Motion for Reasonable Attorneys' Fees and Costs filed by Alfredo Vasquez. (Attachments: # 1 Text of Proposed Order) (Perales, Nina) Modified on 11/13/2008 (jyg). (Entered: 11/12/2008)
191 ORDER granting 190 Unopposed MOTION to Extend Time to file Reply in Support of 175 Motion for Reasonable Attorneys' Fees and Costs. Replies due by 11/25/2008. (see order) (Ordered by Judge Sam A Lindsay on 11/13/08) (lmp) (Entered: 11/14/2008)
192 Villas Plaintiffs REPLY In Support of Their re: 175 MOTION for Attorney Fees and Costs filed by Chateau Ritz Partners, Villas at Parkside Partners, Lakeview at Parkside Partners Ltd (Biles, C) (Entered: 11/14/2008)

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11/14/2008 11/25/2008 01/15/2009 02/03/2009 04/10/2009
04/14/2009 04/16/2009 09/02/2010 11/03/2016

193 Appendix in Support filed by Chateau Ritz Partners, Villas at Parkside Partners, Lakeview at Parkside Partners Ltd re 192 Reply to Response to Motion for Attorneys' Fees (Attachments: # 1 Affidavit, # 2 Affidavit, # 3 Affidavit, # 4 Affidavit) (Biles, C) (Entered: 11/14/2008)
194 Vasquez Plaintiffs' REPLY In Support of re: 178 MOTION for Attorney Fees filed by Alfredo Vasquez (Attachments: # 1 Appendix) (Perales, Nina) (Entered: 11/25/2008)
195 ORDER: The parties are directed to confer and inform the court whether they believe mediation will aid in resolving the issue of attorney's fees. The notice to the court shall be filed by 5:00 p.m. on 1/30/2009. (see order) (Ordered by Judge Sam A Lindsay on 1/15/09) (klm) (Entered: 01/16/2009)
196 ORDER REFERRING CASE to ADR. Type of ADR: Mediation. ADR Provider rep by Cecilia Hufstedler Morgan appointed. The mediation shall take place by March16, 2009. (see order) (Ordered by Judge Sam A Lindsay on 2/3/2009) (Attachments: # 1 ADR Summary Form) (axm) (Entered: 02/03/2009)
197 ORDER: The Villas at Parkside and Vasquez Plaintiffs filed motions for attorney's fees on 9/26/2008, and on 2/3/2009, the court ordered the parties to mediate this issue no later than 3/16/2009. If the matter has been resolved, the parties are to provide the court written documentation to that effect by 4/20/2009; otherwise, the parties are to advise the court in writing of the status of the matter by this date. (See Order) (Ordered by Judge Sam A Lindsay on 4/10/09) (skt) (Entered: 04/10/2009)
198 Alternative Dispute Resolution Summary filed by ADR Provider. Attorneys in Attendance: (see attachment). Prv Fee: $4,525.00. Outcome of ADR: Settled as a result of ADR. (klm) (Entered: 04/15/2009)
199 ORDER denying as moot 175 Motion for Attorney Fees and Costs; denying as moot 178 Motion for Attorney Fees and Costs. (see order) (Ordered by Judge Sam A Lindsay on 04/16/09) (lmp) Modified on 4/16/2009 (skt). (Entered: 04/16/2009)
200 Alternative Dispute Resolution Summary filed by ADR Provider. Attorneys in Attendance: William C Dowdy, III, Nina Perales, Dunham Biles. Prv Fee: $ $3850.00. Outcome of ADR: Parties were unable to reach a settlement. (Morgan, Cecilia) Modified on 9/2/2010 (axm). (Entered: 09/02/2010)
201 NOTE: The documents attached were originally available in paper format only and are now attached here for electronic viewing in the clerk's office. Content includes items referenced in docket entries as −in paper− or −too large− etc. They were scanned in chronological order but are not separated with individual hyperlinks. The viewer is advised to scroll through content in order to locate requested material. (ali) (Entered: 11/03/2016)