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 RESPONSE TO PLAINTIFFS’ NOTICE AND MOTION FOR LEAVE 

TO FILE SECOND AMENDED COMPLAINT 

Defendant, City of Miami (the “City”), hereby responds to Plaintiffs’ Notice and Motion 

for Leave to File Second Amended Complaint (DE 138, “Motion to Leave”), and states as follows 

in support thereof: 

On December 15, 2022, Plaintiffs filed their Original Complaint in this case. (DE 1). In 

their Original Complaint, Plaintiffs allege that “GRACE’s members, most of whom are Black, 

are split across Commission Districts 2 and 4.” (DE 1, ¶19) (emphasis added). In their Original 

Complaint, Plaintiffs sought “nominal damages of $100[.]” (DE 1, at “Prayer for Relief”). 

On February 10, 2023, Plaintiffs filed their Amended Complaint. (DE 23). In their 

Amended Complaint, Plaintiffs once again alleged that “GRACE’s members, most of whom are 

Black, reside in Commission Districts 2 and 4.” (DE 23, ¶19) (emphasis added). Plaintiffs also 

once again sought “nominal damages of $100[.]” (DE 23, at “Prayer for Relief”). 

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On September 7, 2023, Plaintiffs filed a Supplemental Complaint. (DE 109). In their 

Supplemental Complaint, Plaintiffs allege (for a third time) that “GRACE’s members, most of 

whom are Black, reside in Commission Districts 2 under the 2023 Plan.” (DE 109, ¶5) (emphasis 

added). In their Supplemental Complaint, Plaintiffs once again sought “nominal damages of 

$100[.]” (DE 109, at “Prayer for Relief”). 

On December 8, 2023, Plaintiffs filed their Motion for Leave, wherein they claim that the 

“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.” (Motion 

for Leave at 3). However, in their proposed Second Amended Compliant, Plaintiffs allege that 

“GRACE’s members and the members of its constituent organizations, most of whom are 

Black, reside in Commission Districts 2 and 4 under the 2022 Plan and District 2 under the 2023 

Plan.” (DE 138-1, ¶21) (emphasis added). 

Notwithstanding, Plaintiffs argue, without analysis, that “[t]he 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.” (Id.) Plaintiffs 

conclude that “[t]he proposed Second Amended Complaint will thus not delay the parties’ ongoing 

preparation for trial.” (Id.) 

I. Plaintiffs cannot base associational standing on the members of their associational 

members. 

Plaintiffs’ blanket assurances that their proposed Second Amended Complaint does not 

substantively change Plaintiffs’ claims, and does not require discovery to resolve, is inaccurate. 

Article III limits the “judicial Power” of the United States to “Cases” and “Controversies.” U.S. 

Const. art. III, § 2. “Article III standing . . . enforces the Constitution’s case-or-controversy 

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requirement.” DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342 (2006) (quoting Elk Grove 

Unified Sch. Dist. v. Newdow, 542 U.S. 1, 11 (2004)). 

For a plaintiff to have standing under Article III, the plaintiff must have “‘such a personal 

stake in the outcome of the controversy’ as to warrant his invocation of federal court jurisdiction 

and to justify exercise of the court’s remedial powers on his behalf.” Warth v. Seldin, 422 U.S. 

490, 498–99 (1975) (quoting Baker v. Carr, 369 U.S. 186, 204 (1962)). To meet this standard, a 

plaintiff must show three things: (1) injury in fact; (2) a causal connection between the injury 

alleged and the conduct complained of; and (3) the injury would likely be redressed by a favorable 

judicial decision. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992). These three 

requirements are the “‘irreducible constitutional minimum’ of Article III standing.” Uzuegbunam 

v. Preczewski, 141 S. Ct. 792, 797 (2021). If a plaintiff fails to meet any of these three irreducible 

constitutional minimums, the court must dismiss the suit for lack of jurisdiction. Steel Co. v. 

Citizens for a Better Env’t, 523 U.S. 83, 94–95 (1998). The Associational Plaintiffs’ purported 

basis for standing is inconsistent with two of these minimum requirements: injury in fact and 

redressability. 

To establish Article III standing, GRACE does not claim that it has suffered or will suffer 

any cognizable injury; GRACE would unquestionably have standing had it suffered such an injury 

itself. In the City’s motion for Summary Judgment, it argued that “GRACE does not have 

individual members” and failed to identify “where, and in which districts, its members live, and it 

does not know whether it has residents in all of the City’s districts. (DE 131 at 10) Therefore, the 

City argued that GRACE does not have standing to sue based on an injury to one of its members. 

See United Food & Com. Workers Union Loc. 751 v. Brown Grp., Inc., 517 U.S. 544, 552 (1996) 

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(“[A]n organization may sue to redress its members’ injuries, even without a showing of injury to 

the association itself.”). 

On December 21, 2023, this Court denied summary judgment based on GRACE’s assertion 

that it did have members in Districts 2 and 4, who were presumably individuals. (DE 123 at 10-

11, n.10). While there is a genuine issue of material fact, it is still an issue for trial. GRACE now 

seeks to shore up its basis for standing by moving to add “the members of [GRACE’s] constituent 

organizations” to the list of whose rights GRACE seeks to vindicate in this suit. (DE 138-1, ¶21). 

GRACE is asserting that it has standing based on injuries allegedly suffered by members of its 

organizational members, thereby attempting to circumvent the requirements of Article III and carry 

ideological grievances of GRACE’s organizational members’ members into court. Plaintiffs are 

not hiding the fact that they are seeking to assert associational standing to sue in federal court, but 

they are now attempting to do so by impermissibly suing on behalf of third-party organizations as 

a basis for standing. Said differently, Plaintiffs seek to inject non-members, who do not receive 

any benefit from membership, who do not contribute anything to GRACE, and who have no 

personal stake in the issues before the Court, in order for GRACE to adjudicate its policy 

initiatives. 

By attempting to sue on behalf of the members of other organizations, GRACE would not 

be vindicating injuries to itself or its members, and it would be attempting to bring its claim as a 

“concerned bystander,” using the Article III courts as “a ‘vehicle for the vindication of [its] value 

interests.’” Hollingsworth v. Perry, 570 U.S. 693, 707 (2013). Plaintiffs cannot use the Article III 

courts in this way. The appropriate parties to bring litigation challenging the policies at issue in 

this litigation would have been any of GRACE’s organizational members’ members that claim to 

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have been personally injured by the City’s actions. (Id.) (“Without a judicially cognizable interest 

of their own, petitioners attempt to invoke that of someone else.”). 

II. Plaintiffs’ attempt to avoid the right to trial by jury should be rejected. 

“Generally, federal courts favor jury trials.” Manrique v. Fagan, No. 08-60501-CIV, 2009 

WL 700999, at *7 (S.D. Fla. Mar. 16, 2009). The U.S. Supreme Court “has stated that ‘the federal 

policy favoring jury trials is of historic and continuing strength.’” Id. (citing Simler v. Conner, 372 

U.S. 221, 222 (1963)). 

In their Motion for Leave, Plaintiffs assert that they “abandon any claim to damages over 

$1 each,” as opposed to the $100 in nominal damages they have repeatedly alleged throughout this 

case. (DE 138 at 4). Plaintiffs have informed the City that it seeks to make this amendment as a 

predicate for challenging the City’s jury trial demand. While Plaintiffs want to unilaterally prohibit 

the City from demanding a jury trial, the Federal Rules of Civil Procedure do not permit Plaintiffs 

to do so. Manrique, No. 08-60501-CIV, 2009 WL 700999, at *8. Instead, Rules 38 and 39 of the 

Federal Rules of Civil Procedure outline procedures for the preservation of the right to a jury. 

First, once a party files a jury demand, the demand “may not be withdrawn without the consent of 

the parties[.]” Rachal v. Hill, 435 F.2d 59, 63 (5th Cir. 1970)1; see also, Calnetics Corp. v. 

Volkswagen of America, Inc., 532 F.2d 674, 690 (9th Cir. 1976), cert. denied, 429 U.S. 940 (1976) 

(holding that “other parties are entitled to rely on [a jury] demand for the issues it covers,” and are 

not required to file their own jury demand). Because Plaintiffs cannot unilaterally remove the 

1

 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), this court adopted 

as binding precedent all decisions of the former Fifth Circuit handed down prior to October 1, 

1981. 

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City’s right to a trial by jury without the City’s consent, they have decided to take a position that 

is inconsistent with the one Plaintiffs have take throughout this litigation, which the Court should 

estop. 

“The purpose of judicial estoppel is to protect the integrity of the judicial process by 

prohibiting parties from changing positions according to the exigencies of the moment.” Robinson 

v. Tyson Foods, Inc., 595 F.3d 1269, 1273 (11th Cir. 2010) (citation and internal quotation marks 

omitted); see also City of Riviera Beach v. That Certain Unnamed Gray, Two Story Vessel 

Approximately Fifty–Seven Feet in Length, 649 F.3d 1259, 1273 (11th Cir.2011) (“Judicial 

estoppel is designed to prevent parties from making a mockery of justice by inconsistent 

pleadings.”) (citation and internal quotation marks omitted). The decision to apply this equitable 

doctrine is vested in the discretion of the trial court. See Stephens v. Tolbert, 471 F.3d 1173, 1177 

(11th Cir.2006). In exercising that discretion, courts traditionally look at the following factors: 

“(1) whether a later position asserted by a party was clearly inconsistent with an earlier position; 

(2) whether a party succeeded in persuading a court to accept an earlier position . . . ; and (3) 

whether the party with an inconsistent position would derive an unfair advantage or impose an 

unfair treatment on the opposing party if not estopped.” Id. 

Here, Plaintiffs made the same request for damages in three separate pleadings in different 

stages of the litigation. (DE 1; DE 23; DE 109). Plaintiffs survived motions to dismiss and 

summary judgment and, ultimately, the City filed an Answer to Plaintiffs’ First Amended 

Complaint and Supplemental Complaint (the “Answer”), wherein the City affirmatively requested 

a trial by jury. (DE 133 at 44, “Demand for Jury Trial”). The City relied on Plaintiffs’ repeated 

request for damages and, it was not until after the City filed its Answer that Plaintiffs took an 

inconsistent position with respect to the damages they seek in this case. If Plaintiffs are not 

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estopped, Plaintiffs would certainly derive an unfair advantage by being permitted to take an 

inconsistent position solely for the purpose of unilaterally eliminating the City’s right to a trial by 

jury without the City’s consent. 

Because the City relied on Plaintiffs’ requests for damages, and because it is “necessary to 

protect the reliance that other parties may be placing on the demand[,]” the City respectfully 

requests that the Court deny Plaintiffs’ Motion for Leave in its entirety. See Manrique, Case No. 

08–60501, 2009 U.S. Dist LEXIS 61794, at *25, 2009 WL 700999. 

III. Plaintiffs’ Motion for Leave prejudices the City and unduly delays this case. 

Rule 15(a) gives this Court “extensive discretion” to decide whether or not to allow a party 

to amend a complaint. Hargett v. Valley Federal Sav. Bank, 60 F.3d 754, 761 (11th Cir. 1995). 

When deciding how to exercise that discretion, “a court should consider whether there has been 

undue delay in filing, bad faith or dilatory motives, prejudice to the opposing parties, and the 

futility of the amendment.” Scopellitti v. City of Tampa, 617 Fed. Appx. 503, 509 (11th Cir. 2017) 

(citation omitted). “This liberal discretion is not abused when the amendment would prejudice the 

defendant, follows undue delays, or is futile.” Campbell v. Emory Clinic, 166 F.3d 1157, 1162 

(11th Cir. 1999) (citing Technical Resource Services, Inc. v. Dornier Medical Systems, Inc., 134 

F.3d 1458, 1463–64 (11th Cir. 1998)). 

As the Eleventh Circuit has held, “[p]rejudice and undue delay are inherent in an 

amendment asserted after the close of discovery and after dispositive motions have been filed, 

briefed, and decided.” Campbell, 166 F.3d at 1162 (emphasis added) (citing Jameson v. Arrow 

Co., 75 F.3d 1528, 1534 (11th Cir. 1996)). “It is [also] not an abuse of discretion for a district court 

to deny a motion for leave to amend a complaint when such motion is designed to avoid an 

impending adverse summary judgment.” Lowe's Home Centers, Inc. v. Olin Corp., 313 F.3d 1307, 

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1315 (11th Cir. 2002) (citation omitted).Here, Plaintiffs filed their Motion for Leave after the 

parties engaged in substantial amounts of discovery, completed discovery within the time period 

the Court required under its Paperless Order Scheduling Trial (DE 32), and after the City’s motion 

for summary judgment was completely briefed and pending. (DE 131). By seeking to assert the 

rights of the members of organizations that in turn are members of GRACE, the membership of 

those organizations is now a relevant issue for discovery, yet GRACE waited until discovery 

closed and trial a mere month away to raise it. As Plaintiffs concede, the basic facts contained in 

Plaintiffs’ proposed Second Amended Compliant were available to Plaintiffs when they filed their 

Supplemental Complaint on September 7, 2023, and their three month delay in seeking to file this 

fourth pleading, coupled with the request to amend being filed after the City’s motion for summary 

judgment was fully briefed and pending, is completely unwarranted and not explained by 

Plaintiffs. Yet, and as explained above, given that Plaintiffs’ proposed amendment raises new 

allegations directly relating to the question of standing, which Plaintiff had not raised in any prior 

pleading, but on which the City obtained significant discovery and devoted its entire summary 

judgment motion arguing, it is clear that Plaintiffs “seek[] amendment to avoid entry of summary 

judgment for [the City], which is an impermissible purpose.” Tri-Lady Marine, Ltd. v. Bishop 

Mech. Servs., LLC, No. 16-62467-CIV, 2018 WL 10466994, at *1 (S.D. Fla. July 20, 2018). Its 

request to amend after the close of discovery would be highly prejudicial to the City, particularly 

given that trial is roughly one month away. 

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Accordingly, the City respectfully requests that the Court deny Plaintiffs’ Motion for Leave 

in its entirety. 

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 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 December 22, 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 

Counsel for City of Miami 

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