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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 BRANCH OF THE NAACP; 

CLARICE COOPER; YANELIS VALDES; 

JARED JOHNSON; and ALEXANDER 

CONTRERAS, 

 Plaintiffs, 

v. 

CITY OF MIAMI, 

 Defendant. 

________________________________________/ 

REPLY IN SUPPORT OF 

MOTION TO STRIKE CAROLYN ABOTT’S IMPROPER OPINIONS 

ASSESSING THE CREDIBILITY OF WITNESSES AND SPECULATING ABOUT THE 

CITY’S CONSIDERATIONS AND MOTIVATIONS IN CREATING A NEW PLAN 

 Defendant, City of Miami (the “City” or “Defendant”), hereby submits this Reply in 

Support of its Motion to Strike Carolyn Abbott’s Improper Opinions Assessing the Credibility of 

Witnesses and Speculating About the City’s Considerations and Motivations in Creating a New 

Plan (the “Motion to Strike”) [DE 87], and states as follows:

ARGUMENT 

 Plaintiffs misconstrue the nature of Dr. Abott’s conclusions: they claim that Dr. Abott 

“does not speculate about the subjective intent of the commissioners” or “comment on their 

credibility.” Response at 2. Yet on the first page of her Report, she “conclu[des] that differences 

between [the Enacted Plan] and the Enjoined Plan are a result of racial concerns.” [DE 82-12, at 

1 (emphasis added)]. And later, she determines that “[p]artisan motivations cannot explain the 

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boundaries of the commission districts nor the movement of specific areas between the Enjoined 

Plan and [the Enacted Plan]” and nor can “a desire to maximize Republican advantage . . . explain 

any aspect of” the Enacted Plan. [DE 82-12, at 11-12 (emphasis added)]. Indeed, an entire section

of Dr. Abott’s Report—the section immediately preceding the Conclusion—is titled “Partisan 

Motivations.” [DE 82-12, at 11-13 (emphasis added)]. Plaintiffs’ claim that her conclusions do 

not relate to the City’s intentions and motivations is thus belied by her Report. 

Plaintiffs ignore the authorities cited in the City’s Motion—and the well-settled rule that 

speculation about intent or credibility is not a proper subject of expert testimony—and instead 

assert that expert reports “like Dr. Abott’s . . . are commonly used in racial gerrymandering cases.” 

Response at 3. But Plaintiffs’ cited cases have nothing to do with the issue before this Court 

because Dr. Abott’s Report is nothing like the opinions in those cases. Specifically, in Plaintiffs’ 

cases, the records were replete with evidence of packing or dilution, and there was no plausible 

explanation for such results other than race; in other words, the experts in those cases were 

permitted to opine—based on statistical analyses and ample circumstantial record evidence—that 

racial considerations predominated. See Response at 3-4 (citing Bethune-Hill v. Virginia State Bd. 

of Elections, 326 F. Supp. 3d 128, 147 (E.D. Va. 2018) (describing substantial evidence “that 

VTDs in each region were split exactly along racial lines”); Harris v. McCrory, 159 F. Supp. 3d 

600, 619 (M.D.N.C. 2016) (noting that the “principal architect” in drawing the map, Dr. Hofeller, 

admitted in his deposition that race was an “active consideration,” and citing other circumstantial 

evidence); South Carolina State Conference of NAACP v. Alexander, No. 3:21-cv-03302, 2023 

WL 118775, at *8 (D.S.C. Jan. 6, 2023) (noting that the cartographer, Will Roberts, “failed to 

provide the Court with any plausible explanation” his drawing of parts of the map, and finding 

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there was “striking evidence that voters were sorted on the basis of race” (internal quotations 

omitted)). 

But here, in stark contrast, there is no such evidence. Plaintiffs have never even alleged

vote dilution, and they conceded that there is no packing in the Enacted Plan.1

 Rather, the record 

contains only evidence of permissible, non-racial intentions, and Plaintiffs rely on Dr. Abott 

merely to challenge those stated intentions with no reliable basis. This is clearly impermissible. 

See Motion at 5-8; see also City of S. Miami v. Desantis, Case No. 19-cv-22927, 2020 WL 

7074644, at *13 (S.D. Fla. Dec. 3, 2020) (“Dr. Lichtman’s opinion on the legislature’s 

discriminatory intent improperly invades the province of the trier of fact by opining on the ultimate 

legal question in this case.”) (citing Quevedo v. Iberia, Lineas Aereas De Espana, S.A. Operadora 

Unipersonal, No. 17-21168-CIV, 2018 WL 4932097, at *4 (S.D. Fla. Oct. 11, 2018) (“Inferences 

about the intent or motive of parties or others lie outside the bounds of expert testimony...[T]he 

question of intent is a classic jury question and not one for the experts.” (citation omitted)); see 

also Knight ex rel. Kerr v. Miami-Dade Cty., 856 F.3d 795, 808-09 (11th Cir. 2017) (stating that 

“proffered expert testimony generally will not help the trier of fact when it offers nothing more 

than what lawyers for the parties can argue in closing arguments” (quotation marks omitted)). 

That the City did not challenge Dr. Abott’s first report or “request[] the facts and data Dr. 

Abott relied on” does not render her opinions admissible. See Response at 3. On the contrary, this 

has no bearing on the analysis. It is Plaintiffs’ burden—as the party proffering Dr. Abott—to 

establish the reliability and propriety of her opinions. And there are no facts or data upon which 

 

1

 In fact, Plaintiffs’ proposed plan has more packing of Hispanic and white voters than the Enacted 

Plan. 

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Dr. Abott could properly rely to reach a reliable expert opinion regarding the City’s motivations 

on this record. 

Finally, Plaintiffs argue that, “[e]ven if the Court does not consider Dr. Abott qualified as 

an expert,” the Court should nonetheless consider her opinion because this is a bench trial. 

Response at 5. But it is Plaintiffs, and not the City (as Plaintiffs’ contend), who “misconstrue[] 

the Court’s gatekeeping role.” Response at 5. That the Court’s pre-trial gatekeeping role is “more 

relaxed in a bench trial situation,” see Response at 5, does not render otherwise unreliable and 

impermissible opinion testimony admissible; while the Court need not make advance rulings 

regarding admissibility, it still “must determine admissibility at some point.” Travelers Property 

Cas. Co. of Am. v. Barkley, No. 16-61768, 2017 WL 4867012, at *1 (S.D. Fla. June 2, 2017); GLF 

v. Fedcon Joint Venture, No. 8:17-cv-1932, 2019 WL 7423552, at *3 (M.D. Fla. Oct. 15, 2019). 

This is because, in a bench trial, “the Court as a fact finder is presumably competent to disregard 

what he thinks he should not have heard, or to discount it for practical and sensible reasons” at the 

appropriate time. GLF, 2019 WL 7423552, at *3. Now is the appropriate time for the Court to 

make such a determination: the City is not merely seeking a pre-trial, preemptive ruling. Plaintiffs 

rely substantially on Dr. Abott’s opinions in their Objections to the Enacted Plan, so the Court, in 

considering the Enacted Plan, should reject Dr. Abott’s impermissible conclusions. 

 

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CONCLUSION 

 For the reasons herein and in the City’s Motion to Strike, the City respectfully requests the 

Court to strike Dr. Abott’s report and decline to consider her opinions regarding the credibility of 

any witnesses or the City’s motivations, intentions, and considerations in creating the Enacted 

Plan. 

Respectfully submitted, 

GRAYROBINSON, P.A.

333 S.E. 2nd Avenue, Suite 3200 

Miami, Florida 33131 

Telephone: (305) 416-6880 

Facsimile: (305) 416-6887 

 By: s/ Christopher N. Johnson 

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 

GRAYROBINSON, P.A. 

Jason L. Unger, Esquire 

Florida Bar No. 991562 

George T. Levesque 

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 MENDEZ, 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 

Case 1:22-cv-24066-KMM Document 93 Entered on FLSD Docket 07/28/2023 Page 5 of 6
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Office of the City Attorney 

444 S.W. 2nd Avenue 

Miami, FL 33130 

Telephone: (305) 416-1800 

Facsimile: (305) 416-1801 

 Attorneys for Defendant 

CERTIFICATE OF SERVICE 

 I hereby certify that on July 28, 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. 

 By: s/ Christopher N. Johnson 

Christopher N. Johnson, Esq. 

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