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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’ NOTICE AND MOTION FOR LEAVE

TO FILE SECOND AMENDED COMPLAINT

Plaintiffs give notice that they will not demand more than $1 in nominal damages per 

Plaintiff in this action, and abandon any claim to damages over $1 each.

Further, Plaintiffs move for leave to file the attached Proposed Second Amended

Complaint, pursuant to FRCP 15(a) and this Court’s Scheduling Order, ECF 32. Xe Proposed

Second Amended Complaint consolidates the allegations of the First Amended Complaint and 

Supplemental Complaint (together, “Operative Complaint”), deletes obsolete allegations, updates 

certain allegations to conform to new or newly discovered information, and reduces Plaintiffs’ 

nominal damages demand to $1 per Plaintiff.

Plaintiffs’ counsel conferred with counsel for City, which opposes this motion.

MEMORANDUM

I. Procedural History

Plaintiffs filed this action on December 15, 2022, alleging that the five Miami City 

Commission districts are racially gerrymandered in violation of the Fourteenth Amendment’s 

Equal Protection Clause. ECF 1. On February 10, 2023, Plaintiffs filed a First Amended Complaint 

to add an additional plaintiff, among other changes, and moved for a preliminary injunction. ECF 

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23, 26. The Court granted that preliminary injunction, finding that Plaintiffs are substantially likely 

to prevail on their claim. ECF 60. The City abandoned its appeal of that injunction, ECF 88, and 

the specific plan discussed in the First Amended Complaint (the “2022 Plan”) was replaced before

the November 2023 elections. Instead, the City adopted another plan (the “2023 Plan”), which this 

Court found did not remedy the likely constitutional violations identified in its injunction order 

and remained an unconstitutional racial gerrymander. ECF 94. The Court issued an order directing 

the City to implement a court-ordered plan originally submitted by Plaintiffs. Id.

A divided motions panel of the Eleventh Circuit issued a stay of this Court’s order pending 

appeal, solely on the grounds that this Court’s order was imposed too close to the November 

elections. GRACE, Inc. v. City of Miami, No. 23-12472, 2023 WL 5286232 (11th Cir. Aug. 4, 

2023). The motions panel did not reach the merits of the City’s appeal. Id. Later the Court of 

Appeals stayed further appellate proceedings “until entry of final judgment by the district court in 

the case below or until May 1, 2024, whichever comes first.” App. Doc. 45 (11th Cir. Nov. 29, 

2023).

After the preliminary injunction proceedings concluded, Plaintiffs obtained the Court’s 

leave to supplement their pleadings to add the facts regarding the 2023 Plan. ECF 108 (Sept. 8, 

2023). The Supplemental Complaint was filed the same day. ECF 109. The parties conducted 

discovery, which closed on October 21, 2023. The City moved to dismiss the Supplemental 

Complaint, and the Court denied the motion. ECF 132 (Nov. 17, 2023). The City then filed its first 

responsive pleading by answering the First Amended Complaint and Supplemental Complaint. 

ECF 133 (Nov. 27, 2023). The City demanded a jury trial. Id.

This matter is set for trial to begin January 29, 2024. ECF 32. The deadline for the parties 

to amend the pleadings (45 days after the first responsive pleading) is January 11, 2024. Id.

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II. Argument

Courts must “freely give leave [to amend pleadings] when justice so requires.” FRCP 

15(a)(2). “[U]nless there is a substantial reason to deny leave to amend, the discretion of the district 

court is not broad enough to permit denial.” Burger King Corp. v. Weaver, 169 F.3d 1310, 1319 

(11th Cir. 1999). Unlike for amendments sought after the time allowed under the Court’s 

scheduling order, a party seeking amendment before that deadline need not show “good cause.” 

FRCP 16(b)(4); see Sosa v. Airprint Sys., Inc., 133 F.3d 1417, 1418 (11th Cir. 1998).

Xe principal difference between the Operative Complaint and the Proposed Second 

Amended Complaint is the reduction in each Plaintiff’s nominal damages demand from $100 to 

$1. Such a reduction is warranted—and indeed, may be compelled—by the law of nominal 

damages. Xis is because “nominal damages do not generally exceed one dollar.” Whitfield v. 

Fompson, 165 F. Supp. 3d 1227, 1238 n.4 (S.D. Fla. 2016) (citing Carey v. Piphus, 435 U.S. 247, 

266–67 (1978) (holding if plaintiffs were entitled to nominal damages for the mere violation, the 

damages should not exceed one dollar); Kyle v. Patterson, 196 F.3d 695, 697 (7th Cir. 1999)

(“[N]ominal damages, of which $1 is the norm, are an appropriate means of vindicating rights 

whose deprivation has not caused actual, provable injury.”); Familias Unidas v. Briscoe, 619 F.2d 

391, 402–02 (5th Cir. 1980) (holding the plaintiff was entitled to receive nominal damages not to 

exceed one dollar in § 1983 case); Harrison v. Myers, 2011 WL 3204372, *7 (S.D. Ala. July 13, 

2011)); see also Robinson v. Larson, 2018 WL 6028819, at *1 (N.D. Fla. Oct. 17, 2018), report 

and recommendation adopted, 2018 WL 6025854 (N.D. Fla. Nov. 16, 2018) (“Both § 1983 

caselaw and the Eleventh Circuit pattern jury instructions governing plaintiff's claim indicate the 

appropriate measure of nominal damages is $1.00.”); Eleventh Circuit Pattern Jury Instructions 

(Civil Cases) Civil Right 42 U.S.C. § 1983 Claims Instruction 5.13 (“If [name of plaintiff] has 

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failed to prove that [he/she] suffered more than a minimal physical injury, then you must award 

nominal damages of $1.00.”).

Because 42 U.S.C. § 1983 does not provide a statutory right to a jury trial, City of Monterey 

v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 707 (1999), there is only a jury-triable issue 

in this case if the Seventh Amendment confers a right to a jury trial. If the “value in controversy” 

is equal to or less than twenty dollars—as it must be when nine Plaintiffs seek only nominal 

damages—there is no Seventh Amendment right to a jury trial, and the case must be tried by the 

Court. U.S. Const. amend. VII; FRCP 39(a)(2). Plaintiffs seek leave to file the Proposed Second 

Amended Complaint to avoid any doubt that the Constitution and laws of the United States require 

the Court to try this case.

Xe other differences between the Proposed Second Amended Complaint and Operative 

Complaint do not substantively change the Operative Complaint’s allegations or insert new issues 

that require discovery. Xe amendment is also well within this Court’s deadline for amending the 

pleadings (45 days after Defendant’s first responsive pleading, which was filed 11 days ago, 

November 27, 2023). Xe proposed Second Amended Complaint will thus not delay the parties’ 

ongoing preparation for trial.

III. Conclusion

For the foregoing reasons, Plaintiffs respectfully request that the Court grant them leave to 

file the attached Proposed Second Amended Complaint.

LOCAL RULE 7.1(a)(3) CERTIFICATE OF CONFERRAL

Plaintiffs’ counsel conferred with the City’s counsel in a good-faith effort to resolve the 

issues raised in this motion, by telephone conference on December 4, 2023, and again by email on 

December 6. Xe City’s counsel stated that the City opposes this motion and will not otherwise 

Case 1:22-cv-24066-KMM Document 138 Entered on FLSD Docket 12/08/2023 Page 4 of 5
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withdraw its jury demand. Plaintiffs’ counsel then provided the City’s counsel with an advance 

courtesy copy of the Proposed Supplemental Complaint, tracking changes from the Operative 

Complaint, on December 8.

Respectfully submitted this 8th day of December, 2023,

/s/ Nicholas L.V. Warren

Nicholas L.V. Warren (FBN 1019018)

ACLU Foundation of Florida

1809 Art Museum Drive, Suite 203

Jacksonville, FL 32207

(786) 363-1769

nwarren@aclufl.org

Daniel B. Tilley (FBN 102882)

Caroline A. McNamara (FBN 1038312)

Janine M. Lopez (FBN 1038560)

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

Xree 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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