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 MOTION TO DISMISS PLAINTIFFS’ 

FIRST AMENDED COMPLAINT AS MOOT 

 Pursuant to S.D. Local Rule 7.1 and Fed. R. Civ. P. 12(b)(1) and (6), Defendant, City of 

Miami (the “City”), respectfully moves to Dismiss the First Amended Complaint of Plaintiffs, 

Grace, Inc. (“Grace”), Engage Miami, Inc. (“Engage Miami”), South Dade Branch Of The 

NAACP (“South Dade NAACP”), Miami-Dade Branch Of The NAACP (“Miami-Dade 

NAACP”), Clarice Cooper, Yanelis Valdes, Jared Johnson, Alexandra Contreras and Steven 

Miro (collectively, the “Plaintiffs”). As explained further below, the passage of a new 

redistricting plan has mooted Plaintiffs’ case or controversy, and the dispute is no longer 

justiciable. 

I. Introduction 

The City has had single member districts for its five commissioners (rather than at large 

elections) since 1997. DE 23 ¶ 33-39, 59-64. These districts maintained substantially the same 

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geographical areas and racial demographic make-up since the individual districts were first 

constituted. DE 24-80 to 831

; DE 26 p.4; DE 24-76, p.12 (2013 demographics prior to 2013 

redistricting); DE 24-78 p.6 (2013 demographics of 2013 redistricting). 

The United States Census of 2020 (the “2020 Census”) revealed that the City’s 

Commission Districts no longer had substantial equality of population. See Id. ¶¶ 72-74. 

Following the 2020 Census, the ideal Commission district size was 88,448. Id., ¶ 72. One 

district, District 2, the waterfront district, had once more grown significantly larger than the other

four districts and needed to “shed” population to the other four districts. Id., ¶ 75. In order to 

bring the population variance back to constitutionally acceptable levels, the City had to redistrict 

and shift population from District 2 to the other districts. The City Commission adopted 

Resolution 22-131 on March 24, 2022, redrawing the district lines and balancing population 

among the 5 districts. This lawsuit challenges that redistricting as unconstitutional racial 

gerrymandering. 

Nine months after the City had enacted Resolution 22-131, Plaintiff’s filed a single count 

complaint asserting the City improperly considered race in the drawing of all five districts in 

violation of the Equal Protection Clause. DE 23. Eleven months after passage of that plan, 

Plaintiffs filed an Expedited Motion for Preliminary Injunction, seeking to enjoin the use of the 

 

1

 The papers cited are matters of public record and were attached to Plaintiff’s motion and made 

part of the record in this case. “In determining whether to grant a Rule 12(b)(6) motion, the 

Court may also consider the allegations in the complaint, matters of public record, orders, items 

appearing in the record of the case, and exhibits attached to the complaint.” Hodges v. Buzzeo, 

193 F.Supp.2d 1279, 1281 (S.D. Fla. 2002), citing Watson v. Bally Mfg. Corp., 844 F. Supp. 

1533, 1535 n.1 (S.D. Fla. 1993), aff’d, 84 F.3d 438 (11th Cir. 1996). 

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redistricting plan adopted in Resolution 22-131. DE 26. On March 29, the Court’s Magistrate 

conducted an evidentiary hearing on Plaintiffs’ Expedited Motion, and issued her Report and 

Recommendations on May 3, 2023. See DE 52. The Magistrate found that the City failed to 

sufficiently justify using a 50% BVAP in drawing District 5 (D5)2

, and thus, the district was not 

narrowly tailored to serve a compelling state interest, i.e. compliance with the Voting Rights Act 

(“VRA”). Id, P. 57. Additionally, the Magistrate found that race impermissibly predominated 

the drawing of the remaining districts and could not withstand strict scrutiny. Id. In support of 

its findings, the Magistrate relied heavily on City Commissioners’ statements in commission 

meetings that they intended to draw three Hispanic districts, one Black district, and one Anglo 

district. The Magistrate recommended that the plan adopted in Resolution 22-131 be 

preliminarily enjoined, that the Court adopt a schedule for the preparation of a remedial plan 

with new district lines, and that any replacement plan must not use race as a predominant factor 

in the design of any district unless that use of race is narrowly tailored to comply with a 

constitutionally permissible compelling government interest. Id., p. 100. 

The Court, after considering Defendant’s objections and Plaintiffs’ response, granted 

Plaintiffs motion and preliminarily enjoined the plan adopted in Resolution 22-131 (the 

“Enjoined Plan”). DE 59. The Court directed the parties to mediation, gave Defendant until 

June 30, 2023, to enact an interim remedial plan, and directed Defendant to notify the Court by 

close of business that same day on the status of such efforts. Id. In the event mediation did not 

result in a settlement redistricting plan but the City still adopted an interim remedial redistricting

plan, the Court additionally directed Plaintiffs, if they had no objection to the plan adopted by the 

 

2

 The City Districts will be referenced by “D” immediately followed by the applicable number, 

e.g. “D1” refers to District 1. 

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City, to notify the Court within two days of their receipt of the interim remedial redistricting 

plan, and if they did object, file a memorandum in opposition within seven days of their receipt 

of the interim remedial redistricting plan. 

Rather than just adopt an interim remedial plan, on June 14, 2023, the City adopted 

Resolution 23-271, adopting a new redistricting plan (the “Enacted Plan”) to replace the 

Enjoined Plan. DE 77. The resolution was certified on June 29, 2023, and Defendant filed its 

Notice of Passage of Redistricting Plan, in which it informed the Court of the Defendant’s 

adoption of the Enacted Plan, and provided the Court with a copy of the resolution adopting the 

Enacted Plan, the supporting statistical tables for the Enacted Plan (generated after passage of the 

plan and not considered by the City Commission prior to passage of City of Miami Resolution 

23-271), the presentation made by Miguel DeGrandy on June 14, 2023, Plaintiff’s 

Correspondence, May 23, 2023, enclosing Plaintiffs’ Plans 1 and 2, and Plaintiffs’ Plan 3 dated 

June 13, 2023, and the verbatim draft minutes of the City of Miami Commission meeting on June 

14, 2023. 

II. Standard on a Motion to Dismiss 

“It is well-established that, to establish standing, a plaintiff must have: (1) suffered an 

injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that 

is likely to be redressed by a favorable judicial decision.” Schultz v. Alabama, 42 F.4th 1298 

(11th Cir. 2022) (quotation omitted). While a plaintiff must establish standing at the time he 

files his complaint, “when events subsequent to the commencement of a lawsuit create a 

situation in which the court can no longer give the plaintiff meaningful relief, the question 

becomes whether the case is moot.” Id. (quotation omitted). Mootness may occur when there is 

a change of circumstances, such as a change in the law. Coral Springs Street Systems, Inc. v. 

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City of Sunrise, 371 F.3d 1320, 1328 (11th Cir. 2004). A suit that is moot “cannot present an 

Article III case or controversy and the federal courts lack subject matter jurisdiction to entertain 

it.” Id. The doctrine of voluntary cessation is an exception to this general rule. “[T]he ‘voluntary 

cessation of allegedly illegal conduct does not deprive the tribunal of power to hear and 

determine the case, i.e., does not make the case moot.’” Flanigan's Enterprises, Inc. of Georgia 

v. City of Sandy Springs, Georgia, 868 F.3d 1248 (1th Cir. 2017) (quoting United States v. W. T. 

Grant Co., 345 U.S. 629, 632, (1953)). 

However, as it relates to constitutional challenges to statutes, a challenge is generally 

mooted by the repeal of the challenged statute. Coral Springs Street Systems, Inc., 371 F.3d at 

1329. When a city resolution is repealed by the enactment of a superseding resolution, the 

superseding statute resolution “moots a case only to the extent that it removes challenged 

features of the prior law.” “Rarely will challenges to a law's validity survive a mootness analysis 

when that law is no longer effective.” Health Freedom Defense Fund v. President of United 

States, 2023 WL 4115990 (11th Cir. June 22, 2023). While it is usually the burden of the party 

asserting mootness, “governmental entities and officials have been given considerably more 

leeway than private parties in the presumption that they are unlikely to resume illegal activities.” 

Flanigan's Enterprises, 868 F.3d at 1256 (quoting Coral Springs, 371 F.3d at 1328–29)). Once a 

challenged law is repealed, “the plaintiff bears the burden of presenting affirmative evidence that 

the case is no longer moot.” Id. The justification for this rule is that the repeal of a challenged 

law is one of those “subsequent events that makes it absolutely clear that the allegedly wrongful 

behavior could not reasonably be expected to recur.” Id. (citations omitted). This is doubly true 

when one considers the presumption of good faith that applies even to a remedial plan. Abbott v. 

Perez, 138 S.Ct. 2305, 2324 (“The allocation of the burden of proof and the presumption of 

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legislative good faith are not changed by a finding of past discrimination.”) The “key inquiry” is 

“whether the evidence leads [the Court] to a reasonable expectation that the City will reverse 

course and reenact the allegedly offensive portion of its Code should this Court grant its motion 

to dismiss.” Flanigan's Enterprises, 868 F.3d at 1256. 

III. The City’s Enacted Plan has replaced the Enjoined Plan, and there is no indication 

that the City has any intention of reverting to the Enjoined Plan. 

In this case, Plaintiffs have yet to amend their First Amended Complaint which relied 

heavily on the process for enacting the Enjoined Plan, including statements of commissioners in 

prior commission meetings relating to the Enjoined Plan, and such claims do not relate in any 

way to the Enacted Plan, which has replaced the Enjoined Plan. Moreover, there is no evidence 

to suggest that the City has any intention of reverting to the Enjoined Plan if this Court should 

dismiss this suit. 

On June 14, the City unequivocally replaced the Enjoined Plan with the Enacted Plan. 

“for all purposes, including but not limited to, any election of City Commissioners, following the 

effective date of this resolution.” DE 77, p. 8. Resolution 23-0271 became effective on June 29, 

2023. Thus, it would apply unconditionally to all elections held after that date. Specifically, the 

Enacted Plan is not an “interim” plan, but a plan that wholly replaces the Enjoined Plan. The 

controlling precedents plainly dictate that this matter is now moot in light of the Enacted Plan. 

Plaintiffs may assert that the Enacted Plan maintains the cores of the districts, and thus 

still retains the same racial intent and effects of the Enjoined Plan. Compare North Carolina v. 

Covington, 138 S.Ct. 2548, 2553 (2018) (rejecting defendants’ arguments that the case was moot 

because the plaintiffs still asserted “they remained segregated on the basis of race.”) However, 

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the Enacted Plan is not afflicted with the same improper intent as the Enjoined Plan, and the 

racial effect will be the same regardless of how one draws the district lines. 3

 

There is no indication that lines were drawn to separate residents on the basis of race. To 

the contrary, the entire discussion was centered around race-neutral reasons for the changes. As 

Mr. DeGrandy presented, the drafting was commenced using Plaintiffs’ Plan 2 as a starting 

point, and then made changes consistent with the Commission’s policy choices. DE 77, p. 58. 

For example, one of the changes retained a historic barbecue restaurant in an area where the 

incumbent commissioner had invested significant resources. Id. at 105. While the Enacted Plan 

still retains three Hispanic districts and a Black district, so did the Plaintiffs’ alternative plans. 

See DE 77, p. 59. Mr. DeGrandy explained: 

And once you draw District 5 in compliance with the VRA, the fact 

remains that the remaining population of the city is now approximately 75 

percent Hispanic. It is also a fact that the majority of the Hispanic 

residents live in the central and western parts of the city. Now, because of 

this reality, both of the Plaintiff’s alternative plans necessarily include 

three majority Hispanic districts in that area. 

Id. 

Covington does not control the present case. Covington dealt with a remedial process 

after the Court had already granted judgment in favor of plaintiffs finding the North Carolina 

State Assembly impermissibly gerrymandered 28 State Senate and State House of 

Representatives districts comprising majorities of Black voters. See Covington v. North 

Carolina, 316 F.R.D. 117 (M.D.N.C. 2016), summarily aff'd, 137 S.Ct. 2211 (2017). After the 

 

3

 As discussed below, each of Plaintiffs’ proposed plans also maintained the core of the prior 

districts and maintained the same racial demographics as the Enjoined Plan, i.e. the Black VRA 

district, three Hispanic districts, and an “Anglo” district. 

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North Carolina Legislature adopted a remedial plan, the plaintiffs maintained that four districts 

still segregated voters based upon race. But the issues in Covington dealt with not just intent, but 

actual racial effects—like “the exclusion of numerous majority-white precincts in downtown 

Fayetteville,” all of the black residents in a portion of Greensboro, all but one of the majority 

black precincts in two counties, and irregular shapes that corresponded with the racial make-up 

of the geographic area.” Covington, 138 S.Ct. at 2558. The Plaintiffs have made no such similar 

allegations here, and this Court has not granted judgment at all, or even made such conclusions 

in support of its findings supporting its preliminary injunction. 

 The facts are that the Enacted Plan, and the Plaintiffs’ alternative plans retain substantial 

portions of the existing districts, and naturally result in three Hispanic Districts and one Black 

District.4 But unlike the Enjoined Plan, the changes reflected in the Enacted Plan represent raceneutral line drawing intended to rebalance population, not sorting residents on the basis of race. 

 For the foregoing reasons, we respectfully suggest this Court lacks jurisdiction to 

consider the case further and should dismiss the First Amended Complaint as moot. 

 WHEREFORE, Defendant respectfully requests that the Court dismiss Plaintiffs’ 

Amended Complaint. 

 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 

 

4

 In fact, Plaintiffs’ plans pack Hispanics into District 4 at above a 95% level, and preserve the 

cohesion of the whitest neighborhoods in Miami: the various Coconut Grove neighborhoods.

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 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 July 3, 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 

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