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 REPLY MEMORANDUM IN SUPPORT OF MOTION TO DISMISS 

PLAINTIFFS’ FIRST AMENDED COMPLAINT AS MOOT 

Pursuant to S.D. Local Rule 7.1 and this Court’s Order Fed. R. Civ. P. 12(b)(1) and (6), 

Defendant, City of Miami (the “City”), submits the Reply in Support of Defendant’s Motion to 

Dismiss the First Amended Complaint as Moot [DE 80] and in reply to Plaintiffs’ Response 

Memorandum of Law [DE 84]. 

Defendant does not argue “that simply passing a new map” moots this case or that this 

Court lacks the authority to entertain challenges to Resolution 23-271; however, Defendant 

emphatically disagrees with Plaintiffs’ apparent contentions that the City’s new redistricting plan 

does not come before the Court cloaked with a presumption of good faith, that it requires any 

court approval before it may be given effect, or that Plaintiffs’ claims may not be dismissed. 

Plaintiffs’ response wholly ignores the framework for analyzing mootness involving 

constitutional challenges to government actions as well as Abbott v. Perez, 138 S. Ct. 2305 

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(2018), cited in Defendant’s Motion to Dismiss. That case is notable for one simple reason: the 

Supreme Court unequivocally held that legislative enactments are still cloaked with the 

presumption of good faith even after a finding of past discrimination. Abbott, 138 S.Ct at 2324. 

Yet, Plaintiffs scoff at the idea that the City should be afforded any good faith. DE 84, p. 7 (“It 

thus makes no sense to cite caselaw, for example, about presumptions of good faith for 

government actors . . . .”). But Abbott is also notable for the procedural history. Following the 

enactment of a new plan enacted in 2013 after judgment was entered against the State of Texas, 

the Texas trial court refused to dismiss the case as moot, but permitted Plaintiffs to amend their 

complaint to challenge the new plan. Abbot, 138 S.Ct at 2317. Abbott expressly rejects the 

notion that any burden is shifted to the City to demonstrate that its new redistricting plan is 

constitutional. Id. at 2324. “Whenever a challenger claims that a state law was enacted with 

discriminatory intent, the burden of proof lies with the challenger, not the State.” Id. Findings 

of past discrimination do not change that, even after a map is preliminarily enjoined. 

The Court’s issuance of a preliminary injunction is not a judicial finding on par with a 

judgment because it is merely based upon a likelihood of success on the merits. Gonzalez v. 

Governor of Georgia, 978 F.3d 1266, 1270-71 (11th Cir. 2020) (discussing the standard for 

granting a preliminary injunction). Moreover, preliminary injunctions may be based on evidence 

that is otherwise inadmissible at trial. See State of Fla. v. Dep't of Health & Hum. Servs., 19 

F.4th 1271, 1313 (11th Cir. 2021); Levi Strauss & Co. v. Sunrise Int'l Trading, Inc., 51 F.3d 982, 

985 (11th Cir. 1995). And in fact, the Report and Recommendations relied on such inadmissible 

hearsay evidence such as Plaintiffs’ expert reports and affidavits in granting the injunction. See

DE 52. None of those witnesses testified live or have ever been deposed. The nature of a 

preliminary injunction is fundamentally different than a judgment, whether in summary form or 

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after a trial. See Univ. of Texas v. Camenisch, 451 U.S. 390, 396 (1981) (“where a federal 

district court has granted a preliminary injunction, the parties generally will have had the benefit 

neither of a full opportunity to present their cases nor of a final judicial decision based on the 

actual merits of the controversy”). The notion that Plaintiffs no longer bear the burden of 

proving every aspect of their claims after the issuance of a preliminary injunction flies in the face 

of Abbott, which counsels the good faith presumption and burden of proof are not shifted, even 

after judgments with evidentiary findings based upon admissible evidence that demonstrate 

invidious intent. 

While Plaintiffs reference their Objections, DE 83, they have failed to amend their 

complaint which serves as the basis for the present action.1 Their complaints—both initial and 

amended—rested exclusively not just on allegations specific to Resolution 22-131, but also to 

the proceedings involved in enacting that very plan. Both the Complaint (DE 1), the First 

Amended Complaint (DE 23), the Report and Recommendations (DE 52), and this Court’s Order 

adopting the Report and Recommendations (DE 60) prominently quoted statements of several 

commissioners made in public commission meetings about their intention to maintain three 

Hispanic districts, one Black district, and one Anglo district. These statements of intent on the 

legislative record were the core of Plaintiffs’ claims and the primary reason the Court granted the 

preliminary injunction based upon the Commission’s “present legislative intent.” DE 60, p. 16. 

(emphasis in original). Plaintiffs fail to point to any such legislative statements now. 

Instead, Plaintiffs essentially argue intent pointing to effect: there are three Hispanic 

districts and a black district in the City’s new plan. This should be a surprise to no one, 

especially Plaintiffs, since every single one of their exemplar plans has three Hispanic districts 

 

1

 Likewise, Defendant incorporates its response to Plaintiffs’ Objections as part of its Reply. 

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and a Black district, a district that no one disputes is required by the VRA. DE 82-12 p.16 

(Abott report showing demographics of Plaintiffs’ plans). But Plaintiffs have not plead the 

City’s new redistricting plan has a discriminatory effect. Nor could they given their own map 

drawing results. 

Plaintiffs assert “the vast body of gerrymandering case law” demands this Court must 

review the City’s map for constitutional compliance. Defendant does not question this Court’s 

authority to pass on constitutional questions placed before it, but the “vast majority” of cases 

cited by Plaintiffs wherein trial courts conducted reviews of remedial plans predate Abbott. The 

three-judge panel in Covington v. North Carolina, 283 F. Supp. 3d 410 (M.D.N.C.), aff'd in part, 

rev'd in part, 201 L. Ed. 2d 993, 138 S. Ct. 2548 (2018), issued their order on January 21, 2018, 

almost five months before Abbot was issued. See also Harris v. McCrory, 2016 WL 3129213 

(M.D.N.C. June 2, 2016) aff’d sub nom. Harris v. Cooper, 138 S. Ct. 2711 (2018); Johnson v. 

Mortham, 1996 WL 297280 (N.D. Fla. May 31, 1996); James v. City of Sarasota, 611 F. Supp. 

25 (M.D. Fla. 1985); Lipscomb v. Wise, 399 F. Supp. 782, 792 (N.D. Tex. 1975) rev’d, 551 F.2d 

1043 (5th Cir. 1977) rev’d, 437 U.S. 535 (1978); Sobel v. Adams, 214 F. Supp. 811 (S.D. Fla. 

1963), rev’d sub nom. Swann v. Adams, 378 U.S. 553 (1964) (rejecting map). 

Only two cases cited by Plaintiffs for this proposition post-date the issuance of Abbott. In 

Whitest v. Crisp Cnty. Sch. Dist., 601 F. Supp. 3d 1338 (M.D. Ga. 2022), following the school 

district’s confession of liability, the trial court adopted a new plan that had been proposed by the 

school district and adopted by the state legislature. An important qualification, however, was 

that passage of the new plan would not become fully effective until a 1956 local amendment to 

the Georgia Constitution was rescinded. Id., at 1342. To give full effect, it was necessary for the 

court to issue an injunction requiring the use of the plan until the 1956 amendment was 

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rescinded, and the plan became fully effective. Id., at 1348. In stark contrast, the City’s new 

plan is fully effective now. 

The other case cited by Plaintiffs, Thomas v. Bryant, 919 F.3d 298 (5th Cir. 2019), also 

does not support Plaintiffs’ position. In issuing a stay of the trial court’s order directing the use 

of a plaintiff’s expert’s map, the Fifth Circuit justified their action “based on the need to give the 

legislature and Governor an opportunity to remedy the Section 2 violation” and acknowledged 

what was essentially a truism: the lower court “has jurisdiction to consider any challenges to the 

adequacy of a legislative remedy.” Nothing more. And none of the cases stand for the 

proposition the legislative body was somehow impotent to pass new laws absent federal approval 

before the laws were given effect. If Plaintiffs wish to challenge the new redistricting plan that 

was passed with a new record, they are free to do so, but they should have to re-plead such 

challenges based upon the new law and new claims against the law. For example, with the new 

plan, it is unclear whether the individual Plaintiffs reside in all challenged districts. At this 

juncture, fundamental issues of standing and jurisdiction are vague, ambiguous, and lack the 

definition that an amended pleading would provide. 

Finally, Plaintiffs also claim that this Court should deny the Motion to Dismiss because 

they seek nominal damages and attorney fees. Neither presents a legitimate basis for continuing 

this case. Plaintiffs’ claim that “[n]ominal damages redress violations of constitutional rights” is 

incomplete. To be more precise, “nominal damages provide the necessary redress for a 

completed violation of a legal right.” Uzuegbunam v. Preczewski, 141 S. Ct. 792, 802 (2021) 

(emphasis added) (“Nominal damages go only to redressability and are unavailable where a 

plaintiff has failed to establish a past, completed injury.”). But Plaintiffs have not been subjected 

to a “past, completed violation.” They are not being subjected to elections under Resolution 22-

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131—which their Amended Complaint seek redress against—because that plan was fully 

replaced with Resolution 23-2712. And Uzuegbunam makes clear: attorney fees are not damages 

for redress, but merely a byproduct of a suit that succeeded. See 141 S. Ct. at 801. Plaintiffs’ 

claim for attorney fees cannot serve as a basis for continuing litigation. 

 WHEREFORE, Defendant respectfully requests that the Court dismiss Plaintiffs’ 

Amended Complaint as moot. 

Respectfully submitted, 

GRAYROBINSON, P.A.

301 S. Bronough Street, Suite 600 

Tallahassee, Florida 32301 

Telephone: (850) 577-9090 

Facsimile: (850) 577-3311 

By: /s/ George T. Levesque

GRAYROBINSON, P.A. 

Jason L. Unger, Esquire 

Email: Jason.Unger@gray-robinson.com 

Florida Bar No. 991562 

George T. Levesque 

Florida Bar No. 555541 

Email: George.Levesque@gray-robinson 

Andy Bardos 

Florida Bar No. 822671 

Email: Andy.Bardos@gray-robinson.com 

Christopher N. Johnson 

Florida Bar No. 69329 

Email: Christopher.Johnson@gray-robinson.com

Marlene Quintana, B.C.S. 

Florida Bar No. 88358 

 

2

 Plaintiffs suggest that Defendant maintains some ability to revert to the prior plan because it 

has maintained its appeal. Defendant has sought dismissal of their appeal. See Motion to 

Voluntarily Dismiss Appeal, DE 14, GRACE, Inc., et al v. City of Miami, case no. 23-11854-D, 

United States Circuit Court, Eleventh Circuit. 

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Email: Marlene.Quintana@gray-robinson.com

333 S.E. 2nd Avenue, Suite 3200 

Miami, Florida 33131 

Telephone: (305) 416-6880 

Facsimile: (305) 416-6887 

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 

CERTIFICATE OF SERVICE 

I hereby certify that on July 12, 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/ George T. Levesque

George T. Levesque 

Case 1:22-cv-24066-KMM Document 85 Entered on FLSD Docket 07/12/2023 Page 7 of 7