1

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’ REPLY IN SUPPORT OF MOTION FOR LEAVE

TO FILE SECOND AMENDED COMPLAINT

Plaintiffs file this reply in support of their Motion for Leave to File Second Amended 

Complaint (ECF No. 138).

Te City first objects to the Proposed Second Amended Complaint by (perhaps 

unsurprisingly at this point) attacking GRACE’s standing. ECF No. 140 (Response) at 2–5. But 

the change in phrasing at ¶ 21 merely conforms the pleadings to the facts the City itself learned 

during discovery—that GRACE has both individual members, and organizational members with

individual members, who in turn are members of GRACE. ECF No. 130-1 (Robinson Dep.) at 

9:15–22, 59:5–18. As Plaintiffs argued in response to the City’s summary-judgment motion,

GRACE has standing to sue on behalf of both its own individual members and the individual 

members of its constituent organizations. N.Y. State Club Ass’n v. City of New York, 487 U.S. 1, 

9–10 (1988); Perez v. Abbott, 267 F. Supp. 3d 750, 791 n.51 (W.D. Tex. 2017), aff’d in relevant 

part, 138 S. Ct. 2305 (2018); Perez v. Abbott, 253 F. Supp. 3d 864, 931 n.82 (W.D. Tex. 2017) 

(collecting cases). Te change to ¶ 21 is not reason to deny leave to amend.1

1 Should the Court disagree, Plaintiffs seek leave to file the Proposed Second Amended Complaint 

with a ¶ 21 that omits the added language.

Case 1:22-cv-24066-KMM Document 141 Entered on FLSD Docket 12/22/2023 Page 1 of 4
2

Te City’s second objection is that Plaintiffs are estopped from pleading less than $100 in 

nominal damages. Tis argument ignores the body of caselaw holding $1 as the appropriate amount 

for nominal damages. Whitfield v. Bompson, 165 F. Supp. 3d 1227, 1238 n.4 (S.D. Fla. 2016)

(citing Carey v. Piphus, 435 U.S. 247, 266–67 (1978); Kyle v. Patterson, 196 F.3d 695, 697 (7th 

Cir. 1999); Familias Unidas v. Briscoe, 619 F.2d 391, 402–02 (5th Cir. 1980); Harrison v. Myers, 

2011 WL 3204372, *7 (S.D. Ala. July 13, 2011)); 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); Eleventh Circuit Pattern Jury Instructions (Civil Cases) Civil Right 42 U.S.C. 

§ 1983 Claims Instruction 5.13.

Frankly, Plaintiffs (or more accurately, Plaintiffs’ counsel) erroneously pleaded an amount 

they now realize they cannot recover. Te City could never expect to be liable for that amount, and

so suffers no prejudice by conforming the pleadings to the legally sound nominal damages amount. 

And when Plaintiffs collectively cannot recover more than $20, the law requires the Court to try 

this case. See U.S. Const. amend. VII (“In Suits at common law, where the value in controversy 

shall exceed twenty dollars, the right of trial by jury shall be preserved”); FRCP 39(a)(2) (“Te 

trial on all issues so demanded must be by jury unless . . . the court . . . finds that on some or all of 

those issues there is no federal right to a jury trial.”). Granting leave to amend avoids any question 

as to this point.

Finally, the City argues that Plaintiffs unduly delayed in seeking this amendment. But the

proposed amendment came just eleven days after the City’s first responsive pleading. Indeed, had 

Plaintiffs not already amended once to add a new Plaintiff, they could have filed this amended 

complaint by right. While discovery has closed, the proposed amendment raises no new 

Case 1:22-cv-24066-KMM Document 141 Entered on FLSD Docket 12/22/2023 Page 2 of 4
3

discoverable issues that the City has not already probed exhaustively.

2 As to why Plaintiffs waited 

until now to make this change? Because they only realized the unsoundness of their nominal 

damages amount once it was brought to their attention by the City’s jury demand.

Te City’s objections do not rise to the “substantial reasons” needed to deny leave to 

amend. Burger King Corp. v. Weaver, 169 F.3d 1310, 1319 (11th Cir. 1999). Plaintiffs respectfully 

request the Court grant the motion.

Respectfully submitted this 22nd 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)

Neil A. Steiner*

Julia Markham-Cameron*

Dechert LLP

Tree Bryant Park

1095 Avenue of the Americas

New York, NY 10036

(212) 698-3822

neil.steiner@dechert.com

julia.markham-cameron@dechert.com

2 GRACE’s standing to sue on behalf of its constituent organizations’ members (as well as its own) 

was fully briefed at the summary-judgment stage. See ECF No. 135 at 5 n.3. It is thus preposterous 

to argue that “Plaintiffs seek amendment to avoid entry of summary judgment for the City.” ECF 

No. 140 at 8 (cleaned up). Moreover, the Court rejected the City’s standing arguments, explicitly 

finding that GRACE has standing. ECF No. 139 at 10 n.7. Plaintiffs do not intend to risk delay of 

the trial or waste the Court’s time with a Rule 11 sanctions motion, and will address the additional 

expense required to respond to these arguments yet again in any post-trial motion for attorneys’ 

fees. But the Court would be well within its inherent power to sua sponte order the City to show 

cause why it should not be sanctioned for continuing to pursue “its strategy of repeatedly asserting 

arguments that the Court has already rejected numerous times.” ECF No. 139 at 1.

Case 1:22-cv-24066-KMM Document 141 Entered on FLSD Docket 12/22/2023 Page 3 of 4
4

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

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

Case 1:22-cv-24066-KMM Document 141 Entered on FLSD Docket 12/22/2023 Page 4 of 4