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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 STAY

Desperate to perpetuate its unconstitutional racial separation of Miamians for as long as 

possible, the City of Miami requests that this Court stay discovery and further proceedings pending 

its latest appeal. ECF No. 104 (“Mot.”).

1 But the City comes falls far short of meeting the high 

hurdle needed to demonstrate that a stay is warranted. Indeed, the City makes no argument that it 

is likely to succeed on the merits of its appeal, and it makes no argument that it will suffer 

irreparable harm absent a stay. Because no relevant factors support a stay, the Court should deny 

the City’s motion and the Parties should proceed to trial on the current schedule.

LEGAL STANDARDS

I. Rule 62(d)

Ye City expressly seeks a stay under Rule 62(d), under which the Court may suspend an 

1 Ye City falsely informed the Court that the appeal “has been expedited at the Plaintiffs’ request 

and Defendant’s consent.” Mot. at 5. Not so. Ye appeal is proceeding on the regular track. Indeed,

the City has filed documents late, and recently requested an extension of time to file its initial brief. 

App. Docs. 27–33; App. Dkt. Notation Dated Sep. 6, 2023. Plaintiffs have no objection to those 

delays, but they underscore the prudence of proceeding expeditiously in this Court now.

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injunction while an appeal of the interlocutory order is pending. Mot. at 1. A stay pending appeal 

under Rule 62 is an “extraordinary remedy.” Garcia-Mir v. Meese, 781 F.2d 1450, 1455 (11th Cir. 

1986); see also In re Lickman, 301 B.R. 739, 742 (Bankr. M.D. Fla. 2003) (“A motion for stay 

pending appeal is an extraordinary remedy and requires a substantial showing on the part of 

the movant.”) (emphasis added). “A stay is not a matter of right, even if irreparable injury might 

otherwise result.” Nken v. Holder, 556 U.S. 418, 433 (2009) (citing Virginian Ry. Co. v. United 

States, 272 U.S. 658, 672 (1926)).

“Ye party requesting a stay bears the burden of showing that the circumstances justify an 

exercise of that discretion.” Id. at 433–34. Specifically, the party requesting a stay must show: “(1) 

that the movant is likely to prevail on the merits on appeal; (2) that absent a stay the movant will 

suffer irreparable damage; (3) that the adverse party will suffer no substantial harm from the 

issuance of the stay; and (4) that the public interest will be served by issuing the stay.” Meese, 781 

F.2d at 1453. “Ye first two factors are the most critical.” Democratic Exec. Comm. of Fla. v. Lee, 

915 F.3d 1312, 1317 (11th Cir. 2019) (citing Nken, 556 U.S. at 434–35). “To satisfy its burden as 

to those factors, the party seeking the stay must show more than the mere possibility of success on 

the merits or of irreparable injury.” Id.

II. Stays of Proceedings and Discovery Generally

While the City’s motion explicitly invokes Rule 62(d), the City may also seek to invoke 

the Court’s general discretionary power to stay proceedings. See Garcia v. Spruce Servs., Inc., 

2023 WL 2589305, at *1 (S.D. Fla. Mar. 20, 2023). Yis power is part of the district court’s “broad

discretion over the management of pre-trial activities, including discovery and scheduling,” 

Johnson v. Bd. of Regents of Univ. of Ga., 263 F.3d 1234, 1269 (11th Cir. 2001), because “[a]

district court has inherent authority to manage its own docket ‘so as to achieve the orderly and 

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expeditious disposition of cases,’” Equity Lifestyle Props., Inc. v. Fla. Mowing & Landscape Serv., 

Inc., 556 F.3d 1232, 1240 (11th Cir. 2009) (quoting Chambers v. NASCO, Inc., 501 U.S. 32, 43

(1991)).

“In deciding whether to issue a stay, the Court must examine ‘both the scope of the stay 

(including its potential duration) and the reasons cited.’” Fusilamp, LLC v. Littelfuse, Inc., 2010 

WL 2277545, at *4 (S.D. Fla. June 7, 2010) (quoting Ortega Trujillo v. Conover & Co. Commc’ns, 

Inc., 221 F.3d 1262, 1264 (11th Cir. 2002)). “Ye movant has the burden of making out the ‘clear 

case’ for a stay, Landis v. N. Am. Co., 299 U.S. 248, 255 (1936), and a stay should not be lightly 

imposed.” S.E.C. v. Spinosa, 2015 WL 11181929, at *1 (S.D. Fla. Jan. 8, 2015) (citing C.F.T.C. 

v. Chilcott Portfolio Mgmt., Inc., 713 F.2d 1477, 1484 (10th Cir. 1983) (“Ye right to proceed in 

court should not be denied except under the most extreme circumstances.”) (cleaned up)).

ARGUMENT

I. Pe City Has Not Met Its Burden Under Rule 62(d)

Despite seeking relief under Rule 62(d), the City’s motion fails to mention the first two 

stay factors. After a lengthy recitation of the procedural history of this case, the City casually 

suggests that “the appeal will necessarily address the merits of whether” its remedial plan “‘suffers 

from the same constitutional infirmities’ as the Enjoined Plan, and thus whether it is 

unconstitutional. Ye outcome of the appeal will significantly shape this proceeding.” Mot. at 4.

But a mere observation about one of the potential issues the Eleventh Circuit will (or will not) 

consider on appeal is a far cry from showing that the City is likely to succeed on the merits of that 

question. It does not meet the City’s burden to “show more than the mere possibility of success on 

the merits.” Democratic Exec. Comm. of Fla., 915 F.3d at 1317. Indeed, this Court has already 

concluded that none of the City’s (more fleshed out) arguments showed a likelihood of success on 

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the merits. See ECF No. 101 at 5–11. Because the City has not even attempted to demonstrate it is 

likely to succeed on the merits of its appeal, this factor weighs against granting a stay.

As to the second stay factor—irreparable harm—the City’s motion does not mention it at 

all. Yat is because the City will suffer no harm by proceeding to discovery and to trial on the 

merits of Plaintiffs’ racial gerrymandering claims. Ye City’s failure to identify a single harm it 

will suffer dooms its request for a stay.

II. Pis Court Should Decline to Exercise Its Discretion to Stay Proceedings

Even if the Court construes the City’s motion as seeking a stay not under Rule 62(d), but 

rather as an exercise of the court’s discretion to manage case schedules, the Court should still deny 

the motion. Yis case was filed nearly eight months ago. While discovery was stayed on June 2, 

2023, the Parties exchanged written discovery (Rule 26(a)(1) disclosures) as early as February 27

and discussed deposition scheduling beginning on May 3. Ye Parties also developed a trial record 

at the preliminary injunction hearing, including the testimony of one key witness and documents 

that Plaintiffs may again introduce at trial, as noted in their Rule 26(a)(1) disclosures.

Discovery was stayed only “until after the interim remedial phase of this case conclude[d].”

ECF No. 67. Yis was either when this Court issued its order on interim remedy (June 30, 2023)

or shortly thereafter. In the past month, the Parties have again engaged in written discovery (with 

Plaintiffs serving their Request for Production, the response to which is due September 18) and 

worked to schedule depositions. As noted in the Joint Status Report, Plaintiffs have agreed not to 

depose any city commissioners, the city attorney, or the city clerk. ECF No. 107 at 2. In exchange, 

the City has agreed not to present any city commissioners or the city attorney as witnesses later in 

this case. Id. at 4. Ye Parties have agreed to a date for the primary deposition that Plaintiffs seek, 

and are working to schedule a 30(b)(6) deposition of the City. ECF No. 107 at 2.

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For its part, the City did not request any written discovery or notice any depositions before 

the Court issued the temporary discovery stay on June 2. Now, the City says it will wait for its 

motion to be resolved and only then serve requests for production and depose at least 16—perhaps 

as many as 20—individuals. See ECF No. 107 at 3–4. Plaintiffs should not be punished for the 

City’s failure to diligently prepare for trial. Ye closest the City comes to arguing that a discovery 

stay is warranted is that discovery would burden the City and the commissioners while they prepare 

for the 2022 elections. See Mot. at 5. Yis weak argument should be dismissed. Indeed, this Court 

rejected a similar argument in the City’s last request for a stay, concluding that the fact that the 

Court remedial order would “affect candidates” and others did not constitute irreparable harm. See

ECF No. 101 at 12. In any event, Plaintiffs’ agreement to limit depositions of commissioners and 

other top City officials dramatically reduces the burden on the City and its officers. See ECF No. 

107 at 2.

Ye City argues that judicial economy weighs in favor of a stay pending the appeal’s 

resolution, but it is very possible—perhaps even likely—that this Court issues a final judgment 

before the Eleventh Circuit even hears argument on the City’s pending appeal.2 A final judgment 

2 With its recently granted extension, the City’s initial brief is now due October 11. Plaintiffs’ brief 

would not be due until November 13 at the earliest, but Plaintiffs are entitled to—and expect to 

seek—a 30-day extension to December 13. See 11th Cir. Rule 31-2(a). Ye City’s reply brief would 

then not be due until January 3, 2024. Plaintiffs would not expect the Eleventh Circuit to hear oral 

argument until well into 2024. Add a few more months for a decision, and yet more for discovery 

and trial preparation in this Court after the Eleventh Circuit rules. Under this realistic timeline, a 

stay of this case pending appeal might very well jeopardize Plaintiffs’ ability to obtain effective 

relief in time for even the 2025 elections.

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and final remedy would moot issues related to the preliminary injunction and interim remedy, 

“substantially streamlin[ing] the issues and reduc[ing] the burden on the parties and the Court” of 

Appeals.3 Mot. at 7. 

“[T]o achieve the orderly and expeditious disposition of [this] case[],” the Court should 

adhere to the existing schedule that has been in place since February 24. Equity Lifestyle Props., 

556 F.3d at 1240 (quotation omitted). Between their First Amended Complaint and Supplemental 

Complaint, Plaintiffs allege that the City’s commission districts have unconstitutionally segregated 

Miamians along racial lines for years.4 Miamians will continue to live and vote in racially 

gerrymandered districts until this Court intervenes in time to affect a new election. As part of their 

trial presentation, Plaintiffs will ask this Court to order special elections concurrent with the

November 2024 general election, so that Miami voters can achieve the constitutional 

3 For these reasons, Plaintiffs may seek to stay the appellate proceedings should this Court adhere 

to the existing trial schedule.

4 Ye City somehow thinks Plaintiffs’ filing their Supplemental Complaint restarts the case and 

resets all deadlines. Mot. at 5, 7. Yis belief seems to be related to the City’s continued theory that 

Plaintiffs’ First Amended Complaint is moot. Mot. at 1; contra ECF No. 91. A supplemental 

pleading “set[s] forth new facts in order to update the earlier pleading.” Lussier v. Dugger, 904 

F.2d 661, 670 (11th Cir. 1990) (quoting 6A C. Wright, A. Miller & M.K. Kane, Federal Practice 

and Procedure § 1504, at 177). Because Plaintiffs’ supplemental allegations are interconnected 

with the allegations in the First Amended Complaint, there is no need to extend the discovery 

period to address them. In any event, most of the facts relevant to the Supplemental Complaint are 

about the conduct of the City’s own officers and agents, so it is unclear what great amount of 

factual investigation the City could do, when it has had those facts in its possession all along.

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representation that is their right as soon as practicable. Plaintiffs ought to receive a trial on the 

merits of their claims at the soonest possible date so that they do not have to wait years for effective 

relief. Accordingly, staying this case will severely prejudice not only Plaintiffs, but all Miamians.

CONCLUSION

Because the “first two factors are the most critical” for a party requesting a stay pending 

appeal, see Democratic Exec. Comm. of Fla., 915 F.3d at 1317, and because both factors weight 

against the City (or, rather, have no weight at all as the City declined to make such arguments), 

the Court should deny the City’s latest attempt to delay these proceedings under Rule 62(d).

Because all relevant considerations point against delay, the Court should decline to exercise its 

discretion to grant the City’s motion under its inherent powers.

Respectfully submitted this 8th day of September, 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

Neil A. Steiner*

Dechert LLP

Yree Bryant Park

1095 Avenue of the Americas

New York, NY 10036

(212) 698-3822

neil.steiner@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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