UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF FLORIDA 

CASE NO. 1:22-cv-24066-KMM 

GRACE, INC.; ENGAGE MIAMI, INC.; 

SOUTH DADE BRANCH OF THE NAACP; 

MIAMI-DADE BRACH OF THE NAACP; 

CLARICE COOPER; YANELIS VALDES; 

JARED JOHNSON; and ALEXANDER 

CONTRERAS, 

 Plaintiffs, 

v. 

CITY OF MIAMI, 

 Defendant. 

 / 

DEFENDANT’S AMENDED REPLY IN SUPPORT OF ITS 

MOTION TO DISMISS PLAINTIFF’S SUPPLEMENTAL COMPLAINT FOR 

LACK OF SUBJECT MATTER JURISDICTION AND FAILURE TO STATE A CLAIM 

Pursuant to Local Rule 7.1(c)(1), Defendant, City of Miami (the “City”), respectfully files 

its Reply in support of its Motion to Dismiss (DE 117, the “Motion”) Plaintiffs’ Supplemental 

Complaint (DE 109). 

I. Summary of the Argument 

In its Motion to Dismiss, the City identified “two threshold legal questions that go to the 

core of Plaintiffs’ case[:]” (1) whether “narrowly tailoring” with respect to drawing a Voting 

Rights Act (“VRA”) district is a purely subjective test, or an objective test with a subjective safe 

harbor (i.e., whether a plaintiff may still challenge a district that is objectively narrowly tailored

so as not to be overly inclusive on the grounds that the legislative body did not subjectively have 

a good enough reason to believe it was narrowly tailored); and (2) whether Plaintiffs have alleged 

actual racial gerrymandering, instead of an alleged intent to racial gerrymander. In their Response 

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(DE 119, the “Response”), Plaintiffs fail to address the first point, thereby conceding the City’s 

position that Plaintiffs fail to state a claim for racial gerrymandering because their claim 

concerning District 5 is based entirely on the contention that the legislative body did not 

subjectively have a good enough reason to believe it was narrowly tailored, which is contrary to 

applicable U.S. Supreme Court precedent. 

As to the second point, Plaintiffs fail to identify any legal authority that undermines the 

City’s position. Instead, Plaintiffs ask the Court to construe their Amended Complaint and 

Supplemental Complaint together, arguing that “the Supplemental Complaint was clearly intended 

to complement, rather than replace, the First Amended Complaint[.]” Id. 

Yet, Plaintiffs entirely ignore the crux of the City’s argument: Plaintiffs’ Amended 

Compliant and Supplemental Complaint cannot be read together because they are contradictory 

and inconsistent in their allegations and the documents they incorporate. Plaintiffs ask this Court 

to suspend reality, ignore the inconsistencies between the Amended Complaint and the 

Supplemental Complaint, and provide them with unwarranted deductions of fact that: (1) disregard 

that the publicly available documents to which Plaintiffs cite (including those that Plaintiffs filed, 

such as Plaintiffs’ proposed plans), which contradict the allegations in the Supplemental 

Complaint; (2) ignore the legal requirements of the VRA; and (3) ignore the realities of the City’s 

racial and ethnic demographics, which are proved up by Plaintiffs’ own plans, which have 

substantially the same racial and ethnic statistics as the New Plan. Plaintiffs reference their 

alternative plans in the Supplemental Complaint as alternatives the City rejected. (DE 109, ¶¶ 93). 

Plaintiffs cannot now hide behind the veil of their Complaints when their plans, which are critical 

to the allegations in their Supplemental Complaint, are scrutinized on a motion to dismiss. This 

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Court may, and should, consider the documents Plaintiffs reference for purposes of determining 

whether they state a cause of action. In this case, they do not. 

Plaintiffs’ expansion of the allegations in their Complaints when they believe it serves 

them, while simultaneously attempting to thwart the City’s efforts to point the Court to the content 

of those very documents is, in essence, a request that their claims be allowed to proceed despite 

not being properly pled. Likewise, Plaintiffs’ glossing over the law and citations to the record in 

order to avoid addressing the incompatibility between their Amended and Supplemental 

Complaints should not be rewarded. The City therefore respectfully requests that the Court dismiss 

Plaintiffs’ Amended and Supplemental Complaint for failure to state a claim. 

II. MEMORANDUM IN SUPPORT OF REPLY 

a. The Court Can Properly Consider The Publicly Filed Documents Cited In 

The City’s Motion To Dismiss. 

Though they do not explain why, Plaintiffs claim that their plans are constitutional, while 

the City’s New Plan is not. (DE 109, ¶¶34, 35, 97, 98, 167). While the City admittedly references 

Plaintiffs’ publicly filed plans in its Motion to Dismiss, it does so because Plaintiffs’ inability to

harmonize how the New Plan is supposedly unconstitutional with how their plans are 

constitutional exemplifies Plaintiffs’ failure to state a claim. The elements that comprise 

Plaintiffs’ plans, which Plaintiffs believe are constitutional, require Plaintiffs to plead facts that

explain why those same elements are not constitutional when found in the New Plan. For example, 

Plaintiffs rest solely upon the conclusory allegation that the BVAP in District 5 is not “narrowly 

tailored,” without alleging any facts to support any dilution of influence anywhere else. (DE 119 

at 9). Plaintiffs fail to allege why the one to two percent (1% to 2%) difference between the New 

Plan and their Plan would be sufficiently significant to run afoul of the acceptable range of 

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accuracy noted in Bethune-Hill v. Va. State Bd. of Elections (Bethune-Hill I), 580 U.S. 178, 187 

(2017). 

In citing to record documents in its Motion to Dismiss, the City is not asking the Court to 

weigh competing evidence when ruling on the Motion. Instead, the City is asking the Court to 

treat the documents Plaintiffs reference in their Supplemental Complaint as part of that Complaint 

because those documents are central to Plaintiffs’ claim. Plaintiffs’ contention that the Court 

cannot consider anything outside of the four corners of a complaint when deciding a motion to 

dismiss is inaccurate and contrary to well settled law. (DE 119 at 4-5). The Eleventh Circuit has 

expressly held that, in instances such as this, “where the plaintiff refers to certain documents in the 

complaint and those documents are central to the plaintiff's claim, [ ] the Court may consider the 

documents part of the pleadings for purposes of Rule 12(b)(6) dismissal, and the defendant's 

attaching such documents to the motion to dismiss will not require conversion of the motion into 

a motion for summary judgment.” Brooks v. Blue Cross & Blue Shield of Fla., Inc., 116 F.3d 1364, 

1369 (11th Cir. 1997) (citing Venture Assoc. Corp. v. Zenith Data Sys. Corp., 987 F.2d 429, 431 

(7th Cir. 1993)). This Court may therefore consider the documents Plaintiffs reference “to be part 

of the pleadings for purposes of a Rule 12(b)(6) motion to dismiss.” Kelly Auto., Inc. v. Wells 

Fargo Bank, N.A., No. 11-60910-CIV, 2011 WL 13217400, at *1 (S.D. Fla. Aug. 18, 2011), report 

and recommendation adopted, No. 11-60910-CIV, 2011 WL 13217401 (S.D. Fla. Nov. 4, 2011). 

i. Plaintiffs’ plans are central to their Supplemental Complaint. 

Plaintiffs contend that this Court should not consider their plans on a motion to dismiss 

because their plans “will not be on trial.” (DE 119 at 7, n.2). Yet, in pleading their claim, Plaintiffs 

invoke their proposed plans 1, 2, and 3 as foils against the New Plan. See e.g., DE 109, ¶¶ 34-37, 

64-94. Thus, contrary to their assertions, their claims expressly rely on their plans. 

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This is particularly true because Plaintiffs allege no facts which, when accepted as true, 

establish in what way the demographic make-up of the City’s districts reflect anything other than 

the actual demographics of the City of Miami. The New Plan and Plaintiffs’ plans 3 and 4 have 

the same elements: (i) a Black VRA-protected District 5 that is within 1.6 points of 50%; (ii) three 

supermajority Hispanic districts exceeding 85%; and (iii) a coastal district with a Hispanic-leaning 

plurality. In that regard, Plaintiffs’ plans are no different than the City’s because, given the 

minimal statistical differences and substantially similarly racial makeup, their plans demonstrate 

that the City did not racially gerrymander any districts. Just as alternative plans that satisfy nonracial criteria can be probative of racial predominance, alternative plans like Plaintiffs’ proffered 

plans may demonstrate the lack of racial predominance in the City’s map drawing. See Easley v. 

Cromartie, 532 U.S. 234, 249 (2001). Plaintiffs should not be permitted to plead their plans as 

exemplars of constitutionality, then escape the logical consequences of what those plans 

demonstrate. (DE 119 at 7, n.2). 

The similarities between the racial makeup of Plaintiffs’ plans and the New Plan raises the 

question of what remedy the Court could provide in striking the City’s plan for racial 

gerrymandering and requiring a plan with substantially the same racial makeup, regardless of who 

draws the remedial plan. This issue is neither trivial nor frivolous. Plaintiffs have already made 

their intentions clear: “should [they] 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[.]” (Id.) In other words, Plaintiffs are not 

shying away from the fact that they have moved and will continue to move the goalposts if this 

Court does not scrutinize their position at this stage of the litigation. Cf. Democratic Nat’l Comm. 

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v. Wisconsin State Legislature, 141 S. Ct. 28, 31 (2020) (Kavanaugh, J., concurring) (explaining 

that a “principle of judicial restraint” which counsels against “late-in-the-day judicial alterations 

to state election laws,” (1) “protects the State’s interest in running an orderly, efficient election 

and in giving citizens (including the losing candidates and their supporters) confidence in the 

fairness of the election,” and (2) “discourages last-minute litigation and instead encourages 

litigants to bring any substantial challenges to election rules ahead of time, in the ordinary litigation 

process”). Because such a result would be incompatible with the goal of achieving a 

constitutionally compliant voting map, the Court should reject it.

b. Plaintiffs’ Amended Complaint Fails To Address The New Plan. 

Instead of seeking leave to amend their Amended Complaint challenging the 2022 Plan, 

Plaintiffs elected to “supplement” their original complaint as a challenge to the New Plan. But 

under Eleventh Circuit precedent, after the City adopted a new redistricting plan and repealed the 

Enjoined Plan, Plaintiffs’ original action was mooted. Coral Springs Street Systems, Inc. v. City of 

Sunrise, 371 F.3d 1320, 1329 (11th Cir. 2004) (“the challenge to the Sign Code is moot, because 

the original Sign Code has been repealed, and there is no reasonable likelihood the City will reenact 

the old Sign Code”). Plaintiffs continue to claim that the “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.” (DE 119 at 6). That is simply incorrect. 

After the City passed the New Plan, there was no longer a case or controversy with respect 

to the 2022 Plan, and Plaintiffs’ dispute in that regard ceased to be justiciable. See Health Freedom 

Defense Fund v. President of United States, 2023 WL 4115990 (11th Cir. June 22, 2023) (“Rarely 

will challenges to a law’s validity survive a mootness analysis when that law is no longer 

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effective.”). Plaintiffs’ attempt to rely on the stale allegations in the Amended Complaint, in which

they allege only the events leading up to the enactment of the Enjoined Plan, plainly cannot support 

their current allegations directed at an entirely different map. If Plaintiffs wanted to maintain their 

challenge against the Enjoined Plan, along with the New Plan, they needed to plead sufficient facts 

to establish the existence of “a substantial likelihood that the challenged statutory language will 

be reenacted.” Coral Springs, 371 F.3d at 1329. They pled no such language. 

Plaintiffs seemingly acknowledge that the allegations in the Amended Complaint are moot 

by labeling the Supplemental Complaint as “complement[ary]” to those in the Amended 

Complaint. (DE 119 at 3). Regardless of how Plaintiffs frame it, to survive dismissal, their 

Supplemental Complaint must “give the defendant fair notice of what the plaintiff's claim is and 

the grounds upon which it rests.” Swierkiewicz v. Sorema N. A., 534 U.S. 506, 507 (2002) (citing 

Conley v. Gibson, 355 U.S. 41, 47 (1957)). Instead of giving the City fair notice by clarifying their 

purported district-by-district claims in their Supplemental Complaint, Plaintiffs used the 

Supplemental Complaint to create more inconsistencies in their pleadings, further muddying the 

waters and obscuring what their claims actually are. 

c. Plaintiffs’ Competing Complaints Allege Both Packing And Balancing With 

Respect To The Same Districts. 

 “[A] ‘packed’ district is one in which a party’s supporters are highly concentrated, so they 

win that district by a large margin, ‘wasting’ many votes that would improve their chances in 

others.” Rucho v. Common Cause, 139 S.Ct. 2484, 2492 (2019) (quoting Gill v. Whitford, 138 S. 

Ct. 1916, 1930 (U.S. 2018)). As the City addressed in its Motion to Dismiss, while the Amended 

Complaint accuses the City of “packing” Black voters into District 5 and Hispanic residents into 

Districts 1, 3, and 4, the Supplemental Complaint accuses the City of exactly the opposite: 

“Avoiding ‘Packing’ Hispanics.” (DE 117 at 2, 5). Plaintiffs do not address this fundamental 

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inconsistency in their pleadings. Is the City defending against claims of packing or against claims 

of avoiding packing? 

With respect to District 5, Plaintiffs focus on the process, not the result: they claim that the 

City failed to consider an appropriate functional analysis, but do not challenge the result reached 

by that purportedly improper process. This purely subjective test is improper. (DE 117 at 5). 

With respect to Districts 1, 3, and 4, Plaintiffs attempt to substitute their “packing” 

accusation in favor of a “balancing” accusation and, with respect to District 5, they swap their 

“packing” accusation for another subjective test. These are fundamental inconsistencies that 

Plaintiffs should be required to address. These inconsistencies are only exacerbated by Plaintiffs’ 

allegation that the Enjoined Plan and the New Plan are “nearly identical” because 97.8% of 

Miamians remain in the same district. (DE 109, ¶¶64, 65). If a 2.2% difference is statistically 

insignificant to make the two plans the same, the spread between new plan Plaintiffs’ Plan 4 at 

48.4% BVAP is only 1.9% lower than the New plan’s BVAP. Plaintiffs also fail to address how, 

if the Enjoined plan and the New Plan are fundamentally the same, the City can simultaneously be 

“packing” a significant number of Hispanics and balancing a significant number to “avoid 

packing.” Thus if, as Plaintiff urges, this Court accepts “the core allegations” from the Amended 

Complaint, it should dismiss the Complaint because Plaintiffs fail to harmonize these inconsistent 

allegations. 

d. Plaintiffs Conflicting Allegations Fail To Allege Any Racial Gerrymandering. 

Plaintiffs’ request for the Court to ignore their plans is simply a request for this Court to 

accept the otherwise conclusory allegations that the City racially gerrymandered the districts, and 

that it used race as a predominant factor, when the more specific allegations (i.e., the documents 

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Plaintiffs reference in their Supplemental Complaint) have nearly the same racial makeup as the 

Enjoined and the New Plan and therefore contradict Plaintiffs’ allegations. (DE 119 at 7, n.2). 

i. Plaintiffs fail to allege the City moved people because of their race. 

The City’s districts have had substantially the same shape and racial demographic makeup since they were first created in 1997. (DE 117 at 1-2). Since 1997, the City’s five districts have

always been: (i) a Black VRA-protected District 5; (ii) three (3) supermajority Hispanic districts; 

and (iii) a coastal district with a plurality. (Id.) Following the 2020 census, the City needed to 

redistrict, and it moved people from District 2 to the other districts. (Id. at 2). 

Not only does no Plaintiff allege that the racial demographic make-up of any district within 

City has changed since 1997, Plaintiffs do not allege that it is even possible to have districts that 

would reflect a different demographic make-up or result in a significantly different shape than the 

one that the City has consistently achieved since 1997, including the New Plan. Given the 

statistical similarities between Plaintiffs’ Plans and the New Plan, it remains unclear how the 

Complaints credibly present that “race was the predominant factor motivating the [City’s] decision 

to place a significant number of voters within or without a particular district.” Cooper, 581 U.S. 

285, 291 (quoting Miller, 515 U.S. 900, 916 (1995)). The test for racial gerrymandering is not 

merely whether race was discussed, but whether it actually resulted in a racial gerrymander of a 

significant number of voters. Id. Plaintiffs allegations do not demonstrate that a significant 

number of voters were moved into, or out of, a particular district because of race. 

Plaintiffs not only fail to plead that, they admit to not doing so: “Plaintiffs are not claiming 

that the City moved a ‘significant number of voters’ between the 2022 Plan and the 2023 Plan.” 

(DE 119 at 8) (emphasis added). Plaintiffs incorrectly believe that they are not required to allege 

this because, as they see it, “every Miamian was placed within or without their City Commission 

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district based on their race.” (Id.). Yet, the Supreme Court in Alabama Legis. Black Caucus v. 

Alabama, 575 U.S. 254, 262 (2015) (“ALBC I”) expressly rejected this exact type of 

“undifferentiated whole” map racial gerrymandering claim. 

Accordingly, the City respectfully requests that the Court dismiss Plaintiffs’ Supplemental 

Complaint for failure to state a claim. 

e. Plaintiffs Lack Standing Because They Fail To Allege Individualized 

Personal Harm. 

The U.S. Supreme Court has unequivocally identified “[t]he harms that underlie a racial 

gerrymandering claim . . . [as being] . . . personal.” (ALBC I), 575 U.S. at 263. A claim for racial 

gerrymandering is one in which an individual claims he or she has been “personally . . . subjected 

to [a] racial classification,” and is “being represented by an elected official who believes his or her 

primary obligation is to represent only the members of a particular racial group.” Id. (internal 

quotations omitted). While such actions “directly threaten a voter who lives in the district 

attacked[,] they do not so keenly threaten a voter who lives elsewhere [.]” Id. Therefore, “the latter 

voter normally lacks standing to pursue a racial gerrymandering claim.” Id. (citing United States 

v. Hays, 515 U.S. 737, 744–745 (1995). 

Because the alleged harms can only be personal, a racial gerrymandering claim only 

“applies to the boundaries of individual districts.” (ALBC I), 575 U.S. at 262. The U.S. Supreme 

Court has “consistently described a claim of racial gerrymandering as a claim that race was 

improperly used in the drawing of the boundaries of one or more specific electoral districts[,]” and 

has “described the plaintiff's evidentiary burden similarly.” Id. (citing Miller v. Johnson, 515 U.S. 

900, 916, (1995) (holding that a plaintiff must show that “race was the predominant factor 

motivating the legislature's decision to place a significant number of voters within or without a 

particular district” (emphasis added)). 

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In their Amended and Supplemental Complaints, it is impossible to decipher which 

individual Plaintiff is claiming that a particular redistricting action resulted in racial 

gerrymandering with respect to a particular district. As drafted, all Plaintiffs challenge all five of 

the City’s districts, and combine all of those tangled challenges into one cause of action. This is 

exactly the type of “undifferentiated whole” map challenge that the Supreme Court rejected in 

(ALBC I). 

Since a Plaintiff only has standing to allege a personal claim for racial gerrymandering 

with respect to an individual district, and since Plaintiffs have failed to allege any facts to support 

the existence of such personal claims, the Court should dismiss the Amended and Supplemental 

Complaints for lack of standing. 

III. Conclusion 

 WHEREFORE, the City respectfully requests that the Court dismiss Plaintiffs’ Amended 

and Supplemental Complaints. 

 Respectfully submitted, 

GRAYROBINSON, P.A.

 By: s/ George T. Levesque 

Christopher N. Johnson 

 Florida Bar No. 69329 

Email: Christopher.Johnson@gray-robinson.com 

Marlene Quintana, B.C.S. 

Florida Bar No. 88358 

Email: Marlene.Quintana@gray-robinson.com 

333 S.E. 2nd Avenue, Suite 3200 

Miami, Florida 33131 

Telephone: (305) 416-6880 

Facsimile: (305) 416-6887 

GRAYROBINSON, P.A. 

Jason L. Unger, Esquire 

Florida Bar No. 991562 

George T. Levesque 

Case 1:22-cv-24066-KMM Document 128-1 Entered on FLSD Docket 10/27/2023 Page 11 of

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Florida Bar No. 55551 

Andy Bardos 

Florida Bar No. 822671 

301 S. Bronough Street 

Suite 600 

Tallahassee, Florida 32301 

Telephone: (850) 577-9090 

Facsimile: (850) 577-3311 

CITY OF MIAMI 

VICTORIA MÉNDEZ, City Attorney 

Florida Bar No. 194931 

JOHN A. GRECO, Chief Deputy City Attorney 

Florida Bar No. 991236 

KEVIN R. JONES, Deputy City Attorney 

Florida Bar No. 119067 

KERRI L. MCNULTY, 

Litigation & Appeals Division Chief 

Florida Bar No. 16171 

Office of the City Attorney 

444 S.W. 2nd Avenue 

Miami, FL 33130 

Telephone: (305) 416-1800 

Facsimile: (305) 416-1801 

 Attorneys for Defendant 

 

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CERTIFICATE OF SERVICE 

 I hereby certify that on October 27, 2023, I electronically filed the foregoing with the Clerk of 

the Court by using the CM/ECF. I also certify that the foregoing document is being served this day 

on all counsel of record or pro se parties either via transmission of Notice of Electronic Filing 

generated by CM/ECF or in some other authorized manner for those counsel or parties who are not 

authorized to receive electronically Notices of Electronic Filing. 

/s/ George T. Levesque 

Counsel for City of Miami 

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