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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF FLORIDA

Case No. 1:22-cv-24066-KMM

GRACE, INC., et al.,

Plaintiffs,

v.

CITY OF MIAMI,

Defendant.

/

PLAINTIFFS’ MEMORANDUM IN OPPOSITION TO THE CITY’S MOTION TO 

DISMISS PLAINTIFFS’ SUPPLEMENTAL COMPLAINT

For the third time, the City moves to dismiss this case. For the reasons discussed below, 

the Court should rebuff the City’s latest attempt.

LEGAL STANDARD

To survive a motion to dismiss, a plaintiff’s complaint must allege facts that, when accepted 

as true, state a facially plausible claim to relief. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Ye 

court’s function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might 

present at trial, but to assess whether the plaintiff’s complaint alone is legally sufficient to state a 

claim for which relief may be granted.” Adinolfe v. United Techs. Corp., 768 F.3d 1161, 1168 (11th 

Cir. 2014) (cleaned up). A court reviewing a motion to dismiss generally “do[es] not consider 

anything beyond the face of the complaint and any documents attached thereto.” Fin. Sec. Assur., 

Inc. v. Stephens, Inc., 500 F.3d 1276, 1284 (11th Cir. 2007). A limited exception applies where “a 

plaintiff refers to a document in its complaint, the document is central to its claim, its contents are 

not in dispute, and the defendant attaches the document to its motion to dismiss.” Id.

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ARGUMENT

I. 6e City Mischaracterizes the Operative Complaint and the Motion to Dismiss 

Standard.

A. 6e Supplemental Complaint and First Amended Complaint Together 

Comprise the “Operative Complaint.”

Much of the City’s Motion to Dismiss (“Mot.”) hinges on a fundamental misunderstanding 

of the nature of a supplemental complaint. A supplemental complaint does not supersede the earlier 

operative complaint; instead, as the name suggests, it supplements the earlier complaint. As the 

Eleventh Circuit has stated, a supplemental complaint “is an appropriate vehicle by which to set 

forth new facts in order to update the earlier pleading . . . .” Lussier v. Dugger, 904 F.2d 661, 670 

(11th Cir. 1990) (cleaned up) (emphasis added). Where a supplemental complaint “is not designed 

as a substitute [for an earlier complaint] or intended to take its place, as where it refers to its 

allegations, or expressly reaffirms them, . . . or merely augments the original pleading by additional 

allegations, . . . the original pleading and the amendment are to be construed together.” Zousmer v. 

Canadian Pac. Air Lines, Ltd., 307 F. Supp. 892, 896 (S.D.N.Y. 1969) (cleaned up).

Here, the Supplemental Complaint was clearly intended to complement, rather than 

replace, the First Amended Complaint (ECF 23). In Plaintiffs’ motion for leave to file the 

Supplemental Complaint, Plaintiffs told the Court that the allegations in the Supplemental 

Complaint “relate to their original claims—they both concern the City’s racially gerrymandered 

Commission districts.” ECF 105 at 3. But because the new allegations concern Resolution 23-271 

(the “2023 Plan”), which was enacted after the First Amended Complaint was filed, the 

Supplemental Complaint was appropriate “to update the earlier pleading.” Id. (emphasis added).

Ye Supplemental Complaint itself unequivocally refers to and reaffirms the allegations in 

Plaintiffs’ First Amended Complaint and expressly alleges “Supplemental Facts.” ECF 109 at 4

(emphasis added). For instance, its second paragraph states: “As alleged in Plaintiffs’ First 

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Amended Complaint . . . the five Miami City Commission districts have been racially 

gerrymandered in violation of the Fourteenth Amendment’s Equal Protection Clause.” Id. ¶ 2.

Yus, there can be no doubt that the two pleadings should be construed as one: the Operative 

Complaint.1 So construed, the core allegations of the Operative Complaint are that the City enacted 

a racially gerrymandered map in Resolution 22-131 (the “2022 Plan”) and then passed essentially 

“the same map, for the same reasons, under a new name.” Id. ¶ 61.

A proper understanding of the Supplemental Complaint resolves many of the City’s 

arguments. Ye City, for example, wrongly asserts that Plaintiffs have not sufficiently pled that the 

districts are noncompact. Mot. 10–11; see also infra pp. 8–9. But the First Amended Complaint 

alleges that the districts in the 2022 Plan were not compact—indeed, were not intended to be 

compact. ECF 23 ¶¶ 98–99, 215. Ye Supplemental Complaint augmented those allegations by

alleging that districts in the 2023 Plan are even “less compact.” ECF 109 ¶¶ 151, 159 (emphasis 

added).

Ye City also mistakenly argues that Plaintiffs have “changed the accusation[s]” underlying 

their racial gerrymandering claim. Mot. 4–5; see also id. at 4 (“[T]he Supplemental Complaint no 

1 The City briefly argues that Plaintiffs lack standing because the Supplemental Complaint 

does not “reallege the allegations of the Amended Complaint,” but then incorporates by reference 

the standing arguments made in the City’s motion to dismiss the First Amended Complaint. Mot. 

14. This Court already rejected several of those arguments in its preliminary injunction order.

Compare ECF 34 at 17–19 (motion to dismiss First Amended Complaint) with ECF 60 at 6–7 

(rejecting the City’s standing arguments). To the extent the City properly incorporates arguments 

it previously made, Plaintiffs incorporate the responses contained in their opposition to the City’s 

motion to dismiss the First Amended Complaint (ECF 37).

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longer accuses the City of packing any race.”). For example, the City contends that Plaintiffs 

shifted their allegations regarding the City’s treatment of the Hispanic population “from ‘packing’ 

to ‘balancing.’” Mot. 5. Yat is plainly incorrect. Ye Supplemental Complaint alleges that the 

2023 Plan, like the 2022 Plan, “packs” Hispanic voters into three of the five districts—Districts 1, 

3, and 4. See ECF 109 ¶ 67 (describing the “three packed Hispanic districts”). It further alleges 

that in devising the 2023 Plan, the City made deliberate race-based decisions to avoid consolidating 

the Hispanic voters into a single district. Id. ¶ 115. Moreover, the First Amended Complaint 

repeatedly alleges that the City sought to optimally balance the Hispanic population in Districts 1, 

3, and 4. See, e.g., ECF 23 ¶¶ 115, 272, 324. In that sense, the Commission sought to “avoid 

packing Hispanics” and to balance them among the three packed districts instead.

Similarly, contrary to the City’s suggestion, Mot. 5, Plaintiffs have not abandoned their 

position that the City packed Black voters into District 5. Both the First Amended Complaint and 

the Supplemental Complaint include extensive allegations on this issue. See, e.g., ECF 23 ¶¶ 15, 

217–69, 355 (alleging that the City maintained an arbitrary BVAP quota to pack as many Black 

residents as possible in District 5); ECF 109 ¶¶ 168–71 (alleging that the City made changes to the 

proposed remedial map to add even more Black voters to District 5). Regardless of the exact 

vocabulary and synonyms Plaintiffs use, their claim is clear: Ye City drew each of the five districts 

with race as a predominant factor, and the use of race was not narrowly tailored to a compelling 

interest with respect to any of the districts. All the allegations in the First Amended Complaint and 

Supplemental Complaint support this claim.

B. 6e City Misapplies the Motion to Dismiss Standard.

Ye City’s motion repeatedly asks the Court to weigh competing evidence in the 

preliminary injunction record—including expert reports, Plaintiffs’ proposed maps, and related 

transcripts—in deciding whether to dismiss the Operative Complaint. See, e.g., Mot. 5 (discussing 

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Plaintiffs’ proposed maps and expert reports). Yose arguments misapprehend the Court’s function 

at the motion to dismiss stage.

First, none of those materials are part of the motion to dismiss record. Ye City cites only 

one non-binding case for the proposition that the Court may consider “items appearing in the 

record of the case” in deciding a motion to dismiss. Mot. 2, 6 (citing Hodges v. Buzzeo, 193 F. 

Supp. 2d 1279, 1281 (S.D. Fla. 2002)). But the court in that case considered only a contract that 

the plaintiff in a breach-of-contract suit had attached as an exhibit to the complaint. Hodges, 193 

F. Supp. 2d at 1284. Ye case certainly does not suggest that a court can properly weigh competing

evidence not attached to the complaint when deciding a motion to dismiss. And the general rule is 

the opposite: A district court that “considers materials outside of the complaint . . . must [generally] 

convert [a] motion to dismiss into a summary judgment motion,” which “requires notice to the 

parties and an opportunity for mutual discovery.” Adinolfe, 768 F.3d at 1168.

Second, a motion to dismiss tests only the “legal sufficiency” of the complaint. Id. A court 

must “accept[] the factual allegations in the complaint as true and constru[e] them in the light most 

favorable to the plaintiffs.” Id. at 1169 (cleaned up). A motion to dismiss is thus not the appropriate 

vehicle for defendants to “contest[] the accuracy” of the plaintiff’s factual allegations. Id. at 1173. 

Yet the City over and over does just that. Ye City, for example, asks the Court to conclude (again, 

based on evidence outside the complaint) that the challenged districts are compact and the City’s 

BVAP floor was necessary, despite the complaint’s allegations to the contrary. Mot. 5–6, 7–8, 10–

11. Ye City may present those arguments at trial, but it cannot properly do so on a motion to 

dismiss. See Adinolfe, 768 F.3d at 1168 (“Ye court’s function on a Rule 12(b)(6) motion is not to 

weigh potential evidence that the parties might present at trial[.]” (cleaned up)).

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II. 6e Operative Complaint States a Claim of Unconstitutional Racial 

Gerrymandering.

Ye only question relevant to the City’s motion to dismiss is whether Plaintiffs plead facts 

sufficient to state a plausible claim that the City Commission districts were racially gerrymandered 

in the 2022 Plan and continue to be racially gerrymandered in the 2023 Plan. A racial 

gerrymandering claim requires a two-step analysis. See Cooper v. Harris, 581 U.S. 285, 291 

(2017). First, a plaintiff must allege that race was the “predominant factor” motivating district linedrawing. Id. (citing Miller v. Johnson, 515 U.S. 900, 916 (1995)). Second, if race was the 

predominant factor motivating a district’s design, the defendant must satisfy strict scrutiny by 

proving that its use of race “serves a ‘compelling interest’ and is ‘narrowly tailored’ to that end.”

Id. at 292 (citing Bethune-Hill v. Va. State Bd. of Elections, 580 U.S. 178, 193 (2017)).

In the Operative Complaint, Plaintiffs allege facts constituting at least a plausible showing 

that race was the predominant factor motivating the design of all five City Commission districts.

Yis alone would defeat a motion to dismiss, since the burden shifts to the City to justify its use of 

race, see id., and Plaintiffs’ complaint need not refute the City’s arguments in advance. Plaintiffs, 

however, have gone further and alleged facts that show the design of the districts cannot survive

strict scrutiny. Against these allegations, the City’s motion to dismiss must fail.

A. 6e Operative Complaint Sufficiently Alleges 6at Race Was the 

“Predominant Factor” in the Design of All Five Districts.

Ye City does not dispute that race was the predominant factor motivating the design of 

District 5, see Mot. 4, 7; ECF 60 at 9, and Plaintiffs have adequately alleged that race predominated 

in the drawing of the remaining districts as well. Ye First Amended Complaint quotes extensively 

from the record of public meetings where Commissioners explained the goal of the redistricting 

process—namely, to ensure one “Anglo district,” three “Hispanic districts,” and one “Black 

district.” ECF 23 ¶¶ 188–350. Ye Supplemental Complaint alleges that the City approached the 

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2023 redistricting process with that very same goal. ECF 109 ¶¶ 26–31, 55–63, 134–59. Yat is 

sufficient to state a plausible claim that the 2023 Plan’s districts were each motivated primarily by 

racial considerations. Ye City makes three principal arguments in response, none of which 

supports dismissal.

First, the City argues that the Commission districts “simply reflect the demographic 

reality” in Miami, a majority-minority city, and therefore are not racially gerrymandered. Mot. 11.

In the City’s view, a racial gerrymandering case cannot be based on the “motives and statements 

of legislators.” Id. at 14. As an initial matter, the City relies heavily on a comparison between the 

2023 Plan and maps Plaintiffs proposed during the interim remedial phase of this case to make this 

argument. Yat is improper for the reasons described above—namely, that the City is asking the 

Court to consider and weigh evidence that is outside the motion to dismiss record. See supra pp. 

4–5.

2

Ye City’s argument also contradicts decades of precedent. Ye key question in a racial 

gerrymandering case is whether race predominated in the design of the challenged districts, and 

plaintiffs have long been able to make that showing by pointing to “direct evidence going to 

2 Moreover, the maps Plaintiffs submitted during the interim remedial phase have little or 

no bearing on the question of whether race predominated in the City’s districts, and, if so, whether 

they survive strict scrutiny. Plaintiffs’ plans will not be on trial. And should Plaintiffs prevail at 

trial, the City will have another opportunity to submit a new plan to the Court, Plaintiffs will have 

an opportunity to challenge that plan and submit new ones of their own for the Court’s 

consideration, and the Court will have the duty to ensure a constitutionally permissible plan is in 

place—incorporating to the extent possible any new, race-neutral policy considerations the City 

Commission chooses to adopt after trial.

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legislative purpose.” Miller, 515 U.S. at 916. Here, the complaint recites extensive direct evidence 

in the public record that race motivated the design of all five Commission districts, which is 

sufficient to state a racial gerrymandering claim. To be clear, Plaintiffs are not arguing that the 

Commission could never lawfully draw a map with similar demographics to the 2023 Plan. What 

the City cannot do is draw that map with the express intention of segregating people on the basis 

of race.

Second, the City invokes the Supreme Court’s statement that plaintiffs must prove “race 

was the predominant factor motivating the legislature’s decision to place a significant number of 

voters within or without a particular district.” Mot. 11 (emphasis added) (quoting Cooper, 581 U.S. 

at 291). But the City (again) misunderstands Plaintiffs’ argument. Plaintiffs are not claiming that 

the City moved a “significant number of voters” between the 2022 Plan and the 2023 Plan. See id.

at 12. Nor must they to state a claim. Rather, Plaintiffs allege that in both the 2022 and 2023 Plans, 

every Miamian was placed within or without their City Commission district based on their race. 

Ye City already made this faulty argument, and the Court rightly rejected it. ECF 52 at 76. Ye 

Court should do so again.

Finally, the City argues that the districts in the 2023 Plan are “relatively compact”—again 

improperly citing to Plaintiffs’ proposed plans and data and asking the Court to draw inferences in 

its favor. Mot. 10–11. Ye Court should reject that invitation. Ye First Amended Complaint alleges 

that the districts in the 2022 Plan are not compact, see ECF 23 ¶¶ 98–99, 215, and the Supplemental 

Complaint alleges that the districts became even less compact in the 2023 Plan, ECF 109 ¶¶ 151, 

159. Yose allegations are sufficient to plead a lack of compactness, regardless of the compactness 

scores of Plaintiffs’ proposed districts.

In any event, a plaintiff may prove that race predominated “either through circumstantial 

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evidence of a district’s shape and demographics or more direct evidence going to legislative 

purpose.” Miller, 515 U.S. at 916 (emphases added). A plaintiff need not prove (let alone plead) 

that a redistricting plan departs from every or even any traditional districting principle. As the 

Supreme Court recognized in Bethune-Hill, “[r]ace may predominate even when a 

reapportionment plan respects traditional principles” like compactness. 580 U.S. at 189; see also 

id. (“[A] conflict or inconsistency may be persuasive circumstantial evidence tending to show 

racial predomination, but there is no rule requiring challengers to present this kind of evidence in 

every case.”). Here, the extensive direct evidence that race drove the City’s decisionmaking is 

sufficient to conclude that the City subordinated traditional redistricting criteria to racial 

considerations.

B. 6e Operative Complaint Sufficiently Pleads 6at the City’s Use of Race in 

District 5 Was Not Narrowly Tailored to a Compelling Government Interest.

Because the City concedes that race predominated in the drawing of District 5, it bears the 

burden of justifying its use of race as “narrowly tailored” to serve a compelling interest. See 

Cooper, 581 U.S. at 292. Plaintiffs have no obligation to plead facts demonstrating that the 

Commission’s use of race was not narrowly tailored. Ye City’s accusations of shortcomings in 

Plaintiffs’ narrow tailoring allegations (Mot. 7–10) are therefore legally irrelevant.

Plaintiffs, in any event, have adequately pled that the City’s use of race in drawing District 

5 is not narrowly tailored to the only “compelling interest” the City has invoked—namely, 

achieving compliance with the Voting Rights Act. Narrow tailoring requires the legislature to “have 

a strong basis in evidence in support of the (race-based) choice that it has made.” Bethune-Hill, 

580 U.S. at 193 (quoting Alabama Legis. Black Caucus v. Alabama, 575 U.S. 254, 278 (2015)).

Ye complaint here alleges that the City lacked any basis in evidence to support the blanket racial 

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target adopted in both the 2022 and 2023 Plans,

3 and the ways in which the City took race into 

account to draw District 5 were wholly unrelated to VRA compliance. ECF 23 ¶¶ 351–56; ECF

109 ¶¶ 160–73. Neither the City nor its consultants conducted a sufficient analysis of racially 

polarized voting or took other steps to meaningfully assess VRA compliance. Id. Ye City does not 

explain how the City could have the necessary evidentiary basis for race-based decisionmaking 

when it failed to review the evidence about what it would take to afford Black voters the ability to 

elect candidates of their choice.

None of the City’s responses has merit. For one, the City improperly relies on documents 

neither attached to nor incorporated by reference into the Operative Complaint, including 

Plaintiffs’ proposed plans. Mot. 8. As discussed above, the Court may not consider these documents 

on a motion to dismiss without converting the motion into a summary judgment motion. See supra 

pp. 4–5.

For another, the City baselessly asserts that the narrow tailoring requirement is only about 

avoiding packing. Mot. 9. Yis is simply false. Ye Supreme Court has long explained why racial 

classifications in redistricting are impermissible: “Classifications of citizens solely on the basis of 

race are by their very nature odious to a free people whose institutions are founded upon the 

doctrine of equality. Yey threaten to stigmatize individuals by reason of their membership in a 

racial group and to incite racial hostility.” Shaw v. Reno, 509 U.S. 630, 643 (1993) (cleaned up). 

Race-based redistricting without sufficient tailoring “reinforces the perception that members of the 

3 The Court has already rejected the City’s argument that its chosen arbitrary quota is a 

magic number. Compare Mot. 8 with ECF 52 at 82–83 (“The City ultimately misapprehends what 

the VRA required of it; as Plaintiffs note, the City has conflated a numerical 50% BVAP majority 

with the ability of Black voters to elect preferred candidates.”).

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same racial group—regardless of their age, education, economic status, or the community in which 

they live—think alike, share the same political interests, and will prefer the same candidates at the 

polls.” Id. at 647. Yis is harmful because “elected officials are more likely to believe that their 

primary obligation is to represent only the members of that group, rather than their constituency 

as a whole.” Id. at 648. Never has the Supreme Court held that racial gerrymandering is permissible 

as long as a racial group isn’t “packed.”

Ye City’s pat conclusion that “[b]ecause District 5 is a VRA district, racial gerrymandering 

is permissible” fails to satisfy strict scrutiny. Mot. 10. Ye City does not rebut or even acknowledge 

that the Operative Complaint alleges specific facts showing that the use of race in the City’s 

redistricting plan was unrelated to VRA compliance—for instance, that the City failed to conduct 

an adequate analysis of racially polarized voting or any other analysis key to assessing VRA 

compliance. See ECF 109 ¶¶ 161–72. Ye Operative Complaint alleges that the City instead

ignored functional analyses and evidence-based assessments presented to it, using race in ways 

wholly disconnected from any effort to comply with the VRA. Id. ¶¶ 164–72.4

III. 6e Case Will Not be Moot if the Supplemental Complaint is Dismissed.

Nearly every sentence of the City’s mootness argument is legally incorrect. Together, these 

sentences create an argument that is not only meritless, but that this Court has already rejected.

First, the City argues that if the Supplemental Complaint—meaning the supplemental 

4 The City also suggests that District 5 must be narrowly tailored because its Black 

population is similar to those proposed by Plaintiffs. Mot. 5. Even if this argument were 

appropriate for the motion to dismiss stage, it is fallacious. Plaintiffs allege that the City’s use of 

race to draw District 5 was not sufficiently narrowly tailored to VRA compliance, resulting in the 

configuration (and Black population share) of the enacted District 5.

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allegations about the 2023 Plan—is dismissed, the entire case “must be dismissed.” Mot. 15. Yis 

is incorrect because the Supplemental Complaint by itself cannot be dismissed. As discussed 

above, the Supplemental Complaint does not stand alone: it must be read in conjunction with the 

First Amended Complaint to make up the Operative Complaint.

Even if the Supplemental Complaint’s allegations about the 2023 Plan are struck, leaving 

only the allegations from the First Amended Complaint, this matter will not be moot. Ye City 

argues that Plaintiffs “cannot proceed solely on a challenge” to the 2022 Plan “when it has been 

superseded by” the 2023 Plan. Id. Yis is wrong. Yis Court has already ruled that this is wrong.5

And even if the Court were to treat the allegations in the Supplemental Complaint as standing 

alone and dismiss them, Plaintiffs’ claims against the 2022 Plan still survive. Plaintiffs seek to 

redress the City’s unconstitutional classification of them on the basis of their race. Yis 

classification was done through the 2022 Plan—which went into effect in 2022, served as the basis 

for City Commission representation for over a year, and was used in a February 2023 special 

election, see ECF 109 ¶ 3—as well as through the 2023 Plan. Plaintiffs seek to redress their injury 

flowing from the 2022 Plan through, among other relief, nominal damages. ECF 23 at 55. Yat 

nominal damages claim would merit a full trial on the merits even if Plaintiffs sued only to redress 

injuries relating to the 2022 Plan. Uzuegbunam v. Preczewski, 141 S. Ct. 792, 796 (2021).

CONCLUSION

For these reasons, and for the reasons explained in Plaintiffs’ opposition to the City’s 

motion to dismiss the First Amended Complaint (ECF 37), the Court should deny the City’s motion 

to dismiss Plaintiffs’ Operative Complaint.

5 See, e.g., ECF No. 91 at 6.

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Respectfully submitted this 5th day of October, 2023,

/s/ Nicholas L.V. Warren

Nicholas L.V. Warren (FBN 1019018)

ACLU Foundation of Florida

336 East College Avenue, Suite 203

Tallahassee, FL 32301

(786) 363-1769

nwarren@aclufl.org

Daniel B. Tilley (FBN 102882)

Caroline A. McNamara (FBN 1038312)

ACLU Foundation of Florida

4343 West Flagler Street, Suite 400

Miami, FL 33134

(786) 363-2714

dtilley@aclufl.org

cmcnamara@aclufl.org

Gregory P. Luib*

Dechert LLP

1900 K Street NW

Washington, DC 20006

(202) 261-3413

gregory.luib@dechert.com

Neil A. Steiner*

Julia Markham-Cameron*

Dechert LLP

Yree Bryant Park

1095 Avenue of the Americas

New York, NY 10036

(212) 698-3822

neil.steiner@dechert.com

julia.markham-cameron@dechert.com

Christopher J. Merken*

Dechert LLP

Cira Centre

2929 Arch Street

Philadelphia, PA 19104

(215) 994-2380

christopher.merken@dechert.com

* Admitted pro hac vice

Counsel for Plaintiffs

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