Jumping the gun before the City adopted its resolution moving the Confederate monument, a blunderbuss complaint was filed Monday, June 22, 2020, lacking compliance with basic federal civil procedure and pleading rules. Here's the June 23, 2020 order denying a temporary restraining order and dismissing the lawsuit, without prejudice, meaning it can be refiled if competent counsel works it.
Here's the June 23, 2020 order by United States District Judge Henry Lee Adams, Jr. :
UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA JACKSONVILLE DIVISION
H K EDGERTON, WILLIAM C MCREA, ST. AUGUSTINE TEA PARTY, INC, LADIES MEMORIAL ASSOCIATION, INC, VETERANS’ MONUMENTS OF AMERICA, INC, WILLIAM WING LORING CAMP ’35;1316, SONS OF CONFEDERATE VETERANS, SAVE SOUTHERN HERITAGE, INC FLORIDA, RICK HOBBS, JANE DOE, and JOHN DOE,
Plaintiffs,
v. Case No. 3:20-cv-634-J-39JBT
CITY OF ST. AUGUSTINE, FLORIDA, TRACY UPCHURCH, JOHN P REGAN, ISABELLE C LOPEZ, LEANNA FREEMAN, ROXANNE HORVATH, NANCY SIKES-KLINE, JOHN VALDES, TODD NEVILLE, MARQUIS HALBACK, and LAUREL LEE,
Defendants.
/ ORDER
THIS CAUSE is before the Court on Plaintiffs’ Application for Injunctive Relief and Request for Emergency Temporary Restraining Order (Doc. 2; Motion). Plaintiffs filed the Complaint (Doc. 1) against the City of St. Augustine and attendant individuals to prevent the removal, alteration, or destruction to the “Our Dead” Plaza de la Constitution Cenotaph. Plaintiffs ask the Court to enjoin Defendants ex parte on an emergency basis.
H K EDGERTON, WILLIAM C MCREA, ST. AUGUSTINE TEA PARTY, INC, LADIES MEMORIAL ASSOCIATION, INC, VETERANS’ MONUMENTS OF AMERICA, INC, WILLIAM WING LORING CAMP ’35;1316, SONS OF CONFEDERATE VETERANS, SAVE SOUTHERN HERITAGE, INC FLORIDA, RICK HOBBS, JANE DOE, and JOHN DOE,
Plaintiffs,
v. Case No. 3:20-cv-634-J-39JBT
CITY OF ST. AUGUSTINE, FLORIDA, TRACY UPCHURCH, JOHN P REGAN, ISABELLE C LOPEZ, LEANNA FREEMAN, ROXANNE HORVATH, NANCY SIKES-KLINE, JOHN VALDES, TODD NEVILLE, MARQUIS HALBACK, and LAUREL LEE,
Defendants.
/ ORDER
THIS CAUSE is before the Court on Plaintiffs’ Application for Injunctive Relief and Request for Emergency Temporary Restraining Order (Doc. 2; Motion). Plaintiffs filed the Complaint (Doc. 1) against the City of St. Augustine and attendant individuals to prevent the removal, alteration, or destruction to the “Our Dead” Plaza de la Constitution Cenotaph. Plaintiffs ask the Court to enjoin Defendants ex parte on an emergency basis.
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“ 
ex partewith the utmost caution.” Levine v. Comcoa Ltd., 70 F.3d 1191, 1194 (11th Cir. 1995) (Hill, J., concurring). The most significant distinguishing element of a temporary restraining order from a preliminary injunction is that the temporary restraining order is issued ex parte. Id.; see also Local Rules 4.05 and 4.06, Middle District of Florida, United States District Court (describing requirements for the issuances of temporary restraining orders and preliminary injunction). Plaintiffs’ request for a TRO in this case arises from considerations of timing. (Doc. 1; Complaint ¶ 153 (Plaintiffs’ describing their concern that Defendants “may move swiftly and unilaterally to . . . remov[e] the 140 year old Plaza Cenotaph . . . .”)). In ascertaining the source of Plaintiffs’ fear of theimmediate removal of the Cenotaph, the Court scrutinized the Motion closely and found only broadly stated allegations and a general incorporation of the Complaint and an accompanying Affidavit.
Problematically, the Court finds that the Complaint constitutes an impermissible “shotgun pleading.”
There are four basic types of shotgun pleadings:
(1) those in which “each count adopts the allegations of all preceding counts;” (2) those that do not re-allege allpreceding counts but are “replete with conclusory, vague, and immaterial facts not obviously connected to anyparticular cause of action”; (3) those that do not separate each cause of action or claim for relief into a different count; and (4) those that assert multiple claims against multiple defendants without specifying which applies to which.
Yeyille v. Miami Dade Cty. Pub. Sch., 643 F. App’x 882, 884 (11th Cir. 2016) (quoting Weiland v. Palm Beach Cty. Sheriff's Office, 792 F.3d 1313, 1321-23 (11th Cir. 2015)). “The unifying characteristic of all types of shotgun pleadings is that they fail to . . . give
Problematically, the Court finds that the Complaint constitutes an impermissible “shotgun pleading.”
There are four basic types of shotgun pleadings:
(1) those in which “each count adopts the allegations of all preceding counts;” (2) those that do not re-allege allpreceding counts but are “replete with conclusory, vague, and immaterial facts not obviously connected to anyparticular cause of action”; (3) those that do not separate each cause of action or claim for relief into a different count; and (4) those that assert multiple claims against multiple defendants without specifying which applies to which.
Yeyille v. Miami Dade Cty. Pub. Sch., 643 F. App’x 882, 884 (11th Cir. 2016) (quoting Weiland v. Palm Beach Cty. Sheriff's Office, 792 F.3d 1313, 1321-23 (11th Cir. 2015)). “The unifying characteristic of all types of shotgun pleadings is that they fail to . . . give
An
temporary restraining order is an extreme remedy to be used only
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the defendants adequate notice of the claims against them and the grounds upon which each claim rests.” Weiland, 792 F.3d at 1323. Consequently, in ruling on the sufficiency of a claim, the Court is faced with the onerous task of sifting out irrelevancies in order to decide for itself which facts are relevant to a particular cause of action asserted. See id. In this case, the Complaint is “replete with conclusory, vague, and immaterial facts not obviously connected to any particular cause of action” and fails to direct its claims against specific Defendants. See, e.g., Complaint ¶ 79 (describing Andrew Young’s feelings about the confederate flag).
In the Eleventh Circuit, shotgun pleadings of this sort are “altogether unacceptable.” Cramer v. State of Fla., 117 F.3d 1258, 1263 (11th Cir. 1997); see also Weiland, 792 F.3d at 1321, 1324 (“[T]his Court has condemned the incorporation of preceding paragraphs where a complaint contains several counts, each one incorporating by reference the allegations of its predecessors [i.e., predecessor counts], leading to a situation where most of the counts (i.e., all but the first) contain irrelevant factual allegations and legal conclusions.” (internal quotation and citation omitted)) (collecting cases); Cook v. Randolph County, 573 F.3d 1143, 1151 (11th Cir. 2009) (“We have had much to say about shotgun pleadings, none of which is favorable.”) (collecting cases). As the Court in Cramer recognized, “[s]hotgun pleadings, whether filed by plaintiff or defendant, exact an intolerable toll on the trial court’s docket, lead to unnecessary and unchanneled discovery, and impose unwarranted expense on the litigants, the court and the court’s parajudicial personnel and resources.” Cramer, 117 F.3d at 1263. When faced with the burden of deciphering a shotgun pleading, it is the trial court’s obligation to strike the pleading on its own initiative, and force the plaintiff to
In the Eleventh Circuit, shotgun pleadings of this sort are “altogether unacceptable.” Cramer v. State of Fla., 117 F.3d 1258, 1263 (11th Cir. 1997); see also Weiland, 792 F.3d at 1321, 1324 (“[T]his Court has condemned the incorporation of preceding paragraphs where a complaint contains several counts, each one incorporating by reference the allegations of its predecessors [i.e., predecessor counts], leading to a situation where most of the counts (i.e., all but the first) contain irrelevant factual allegations and legal conclusions.” (internal quotation and citation omitted)) (collecting cases); Cook v. Randolph County, 573 F.3d 1143, 1151 (11th Cir. 2009) (“We have had much to say about shotgun pleadings, none of which is favorable.”) (collecting cases). As the Court in Cramer recognized, “[s]hotgun pleadings, whether filed by plaintiff or defendant, exact an intolerable toll on the trial court’s docket, lead to unnecessary and unchanneled discovery, and impose unwarranted expense on the litigants, the court and the court’s parajudicial personnel and resources.” Cramer, 117 F.3d at 1263. When faced with the burden of deciphering a shotgun pleading, it is the trial court’s obligation to strike the pleading on its own initiative, and force the plaintiff to
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replead to the extent possible under Rule 11, Federal Rules of Civil Procedure. See id. (admonishing district court for not striking shotgun complaint on its own initiative); see also United States ex rel. Atkins v. McInteer, 470 F.3d 1350, 1354 n.6 (11th Cir. 2006) (“When faced with a shotgun pleading, the trial court, whether or not requested to do so by a party’s adversary, ought to require the party to file a repleader.”) (citing Byrne v. Nezhat, 261 F.3d 1075, 1133 (11th Cir. 2001), abrogated on other grounds as recognized by Douglas Asphalt Co. v. QORE, Inc., 657 F.3d 1146, 1151 (11th Cir. 2011)).
The Court also notes that the Federal pleading rules call for “‘a short and plain statement of the claim showing that the pleader is entitled to relief[.]’” Johnson v. City of Shelby, Miss., 574 U.S. 10 (2014) (quoting Federal Rule of Civil Procedure 8(a)(2)). Plaintiff’s Complaint spans a staggering 63 substantive pages and can be categorized as neither short nor plain. The Complaint’s lack of brevity cannot be justified when large swathes of the Complaint are spent describing various historical events, arguing case law, and presenting superfluous background facts which are not needed for Plaintiffs to plead their case. (See, e.g., Complaint ¶ 125 (citing to case law and describing the facts therein); see also Complaint ¶¶ 74-75 (describing St. Augustine’s history andimportance as a center for tourism). The toll exacted upon the Court and Defendants by Plaintiffs’ failure to plead this case in a short and plain statement is compounded by the Complaint’s shotgun nature, which is then further exacerbated by Plaintiffs’ request that their Motion be resolved on an emergency basis. Moreover, Plaintiffs’ incorporation of the Complaint means the Motion swells to nearly 73 substantive pages, well beyond the 25-page limit imposed by Local Rule 3.01(a).
The Court also notes that the Federal pleading rules call for “‘a short and plain statement of the claim showing that the pleader is entitled to relief[.]’” Johnson v. City of Shelby, Miss., 574 U.S. 10 (2014) (quoting Federal Rule of Civil Procedure 8(a)(2)). Plaintiff’s Complaint spans a staggering 63 substantive pages and can be categorized as neither short nor plain. The Complaint’s lack of brevity cannot be justified when large swathes of the Complaint are spent describing various historical events, arguing case law, and presenting superfluous background facts which are not needed for Plaintiffs to plead their case. (See, e.g., Complaint ¶ 125 (citing to case law and describing the facts therein); see also Complaint ¶¶ 74-75 (describing St. Augustine’s history andimportance as a center for tourism). The toll exacted upon the Court and Defendants by Plaintiffs’ failure to plead this case in a short and plain statement is compounded by the Complaint’s shotgun nature, which is then further exacerbated by Plaintiffs’ request that their Motion be resolved on an emergency basis. Moreover, Plaintiffs’ incorporation of the Complaint means the Motion swells to nearly 73 substantive pages, well beyond the 25-page limit imposed by Local Rule 3.01(a).
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Even in combining the Complaint and Motion, Plaintiffs do little more than espouse their fears that the Cenotaph will be moved. They do not cite to anything concrete, like an ordinance, that relief should be granted without allowing Defendants’ an opportunity to respond. Plaintiffs also fail to propose a proper order for entry of a temporary restraining order in accordance with Local Rule 4.05(b)(3)(iii). Having failed to provide that ex parte relief is justified, the Court now examines the Motion as one for preliminary injunction.
“For a district court to grant a preliminary injunction, the movant must establish: (1) a substantial likelihood of success on the merits of the underlying case, (2) the movant will suffer irreparable harm in the absence of an injunction, (3) the harm
suffered by the movant in the absence of an injunction would exceed the harm suffered by the opposing party if the injunction issued, and (4) an injunction would not disserve the public interest.” Johnson & Johnson Vision Care, Inc. v. 1-800 Contacts, Inc., 299 F.3d 1242, 1246-47 (11th Cir. 2002); see also Fed. R. Civ. P. 65. A preliminary injunction is a drastic and extraordinary remedy which should not be granted unless the movant can clearly establish each of the four elements. America’s Health Ins. Plans v. Hudgens, 742 F.3d 1319, 1329 (11th Cir. 2014). “The burden of persuasion on all of the four requirements is at all times upon the [movant].” Canal Auth. of Fla. v. Callaway, 489 F.2d 567, 573 (5th Cir. 1974).1 The failure to establish an element, such as a substantial likelihood of success on the merits, will warrant denial of the request for preliminary injunctive relief and obviate the need to consider the remaining
1 In Bonner v. City of Prichard, Alabama, 661 F.2d 1206, 1207 (11th Cir. 1981), the Eleventh Circuit adopted as binding precedent decisions of the former Fifth Circuit rendered prior to October 1, 1981.
“For a district court to grant a preliminary injunction, the movant must establish: (1) a substantial likelihood of success on the merits of the underlying case, (2) the movant will suffer irreparable harm in the absence of an injunction, (3) the harm
suffered by the movant in the absence of an injunction would exceed the harm suffered by the opposing party if the injunction issued, and (4) an injunction would not disserve the public interest.” Johnson & Johnson Vision Care, Inc. v. 1-800 Contacts, Inc., 299 F.3d 1242, 1246-47 (11th Cir. 2002); see also Fed. R. Civ. P. 65. A preliminary injunction is a drastic and extraordinary remedy which should not be granted unless the movant can clearly establish each of the four elements. America’s Health Ins. Plans v. Hudgens, 742 F.3d 1319, 1329 (11th Cir. 2014). “The burden of persuasion on all of the four requirements is at all times upon the [movant].” Canal Auth. of Fla. v. Callaway, 489 F.2d 567, 573 (5th Cir. 1974).1 The failure to establish an element, such as a substantial likelihood of success on the merits, will warrant denial of the request for preliminary injunctive relief and obviate the need to consider the remaining
1 In Bonner v. City of Prichard, Alabama, 661 F.2d 1206, 1207 (11th Cir. 1981), the Eleventh Circuit adopted as binding precedent decisions of the former Fifth Circuit rendered prior to October 1, 1981.
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prerequisites. See Pittman v. Cole, 267 F.3d 1269, 1292 (11th Cir. 2001) (citing Church v. City of Huntsville, 30 F.3d 1332, 1342 (11th Cir. 1994)); see also Del Monte Fresh Produce Co. v. Dole Food Co., 148 F. Supp. 2d 1326, 1339 n.7 (S.D. Fla. 2001) (“Because Del Monte has not met the first requirement, it is not necessary to discuss the remaining elements required for a preliminary injunction.”).
In deciding whether a party has made the requisite showing for entry of an preliminary injunction, “[a] district court may rely on affidavits and hearsay materials which would not be admissible evidence for a permanent injunction, if the evidence is appropriate given the character and objectives of the injunctive proceeding.” LeviStrauss & Co. v. Sunrise Int’l Trading Inc., 51 F.3d 982, 985 (11th Cir. 1995) (internal quotation marks and citation omitted). The Court is mindful that “[p]reliminary injunctions are, by their nature, products of an expedited process often based upon an underdeveloped and incomplete evidentiary record.” Cumulus Media, Inc. v. Clear Channel Commc'ns, Inc., 304 F.3d 1167, 1171 (11th Cir. 2002).
The Court only needs to address Plaintiffs’ likelihood of success of the merits. The Eleventh Circuit Court of Appeals came across substantially similar facts in Gardner v. Mutz, No. 19-10461, 2020 WL 3410533 (11th Cir. June 22, 2020) (published). In fact, counsel for Plaintiffs represented the plaintiffs in that case, which also dealt with the relocation of a confederate Cenotaph. In no uncertain terms did the Eleventh Circuit declare that the plaintiffs lacked standing to assert their claims that the defendants were violating the plaintiffs’ First Amendment or due process rights. Gardner, No. 19-10461, 2020 WL 3410533, at *8 (“[A]side from their special interest in the subjects’ of Confederate history, veterans memorials, and the so-called ‘Southern
In deciding whether a party has made the requisite showing for entry of an preliminary injunction, “[a] district court may rely on affidavits and hearsay materials which would not be admissible evidence for a permanent injunction, if the evidence is appropriate given the character and objectives of the injunctive proceeding.” LeviStrauss & Co. v. Sunrise Int’l Trading Inc., 51 F.3d 982, 985 (11th Cir. 1995) (internal quotation marks and citation omitted). The Court is mindful that “[p]reliminary injunctions are, by their nature, products of an expedited process often based upon an underdeveloped and incomplete evidentiary record.” Cumulus Media, Inc. v. Clear Channel Commc'ns, Inc., 304 F.3d 1167, 1171 (11th Cir. 2002).
The Court only needs to address Plaintiffs’ likelihood of success of the merits. The Eleventh Circuit Court of Appeals came across substantially similar facts in Gardner v. Mutz, No. 19-10461, 2020 WL 3410533 (11th Cir. June 22, 2020) (published). In fact, counsel for Plaintiffs represented the plaintiffs in that case, which also dealt with the relocation of a confederate Cenotaph. In no uncertain terms did the Eleventh Circuit declare that the plaintiffs lacked standing to assert their claims that the defendants were violating the plaintiffs’ First Amendment or due process rights. Gardner, No. 19-10461, 2020 WL 3410533, at *8 (“[A]side from their special interest in the subjects’ of Confederate history, veterans memorials, and the so-called ‘Southern
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perspective, the plaintiffs haven’t shown that they have suffered a particularized Article III injury of the sort that distinguishes them from other interested observers and thus qualifies them, specifically, to invoke federal-court jurisdiction.”) (internal quotations and citation omitted). Plaintiffs in the case at bar appear to face a similar difficulty in alleging standing.2
Moreover, even if Plaintiffs had cleared the jurisdictional hurdle of standing for their federal claims, the Court is persuaded by Judge Covington’s reasoning in Gardner v. Mutz, 360 F. Supp. 3d 1269, 1275 (M.D. Fla. 2019), aff'd in part, vacated in part, remanded, No. 19-10461, 2020 WL 3410533 (11th Cir. June 22, 2020). In dismissing the plaintiffs’ federal claims on the merits, Judge Covington explained that their claims for federal claims fail because the speech at issue was “‘Government speech’” which “‘is not restricted by the Free Speech Clause.’” Id. (quoting Pleasant Grove City, Utah v. Summum, 555 U.S. 460, 469, 129 S. Ct. 1125, 1132 (2009)). The same hold trues in this case. As it pertains to the remaining claims based in state law, the Eleventh Circuit Court of Appeals admonished district courts that “needless decisions of state law should be avoided both as a matter of comity and to promote justice between the parties by procuring for them a surer-footed reading of applicable law.” Ameritox, Ltd. v. Millennium Labs., Inc., 803 F.3d 518, 531 (11th Cir. 2015) (quoting United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726, 86 S. Ct. 1130, 1139 (1966)). The Court sees no reason to exercise jurisdiction over Plaintiffs’ state law claims.
Accordingly, after due consideration, it is
2 While the Court cites to the tentativeness of Plaintiffs’ standing, it does so with an eye toward denying Plaintiffs preliminary relief and not as a basis for dismissal for lack of jurisdiction.
Moreover, even if Plaintiffs had cleared the jurisdictional hurdle of standing for their federal claims, the Court is persuaded by Judge Covington’s reasoning in Gardner v. Mutz, 360 F. Supp. 3d 1269, 1275 (M.D. Fla. 2019), aff'd in part, vacated in part, remanded, No. 19-10461, 2020 WL 3410533 (11th Cir. June 22, 2020). In dismissing the plaintiffs’ federal claims on the merits, Judge Covington explained that their claims for federal claims fail because the speech at issue was “‘Government speech’” which “‘is not restricted by the Free Speech Clause.’” Id. (quoting Pleasant Grove City, Utah v. Summum, 555 U.S. 460, 469, 129 S. Ct. 1125, 1132 (2009)). The same hold trues in this case. As it pertains to the remaining claims based in state law, the Eleventh Circuit Court of Appeals admonished district courts that “needless decisions of state law should be avoided both as a matter of comity and to promote justice between the parties by procuring for them a surer-footed reading of applicable law.” Ameritox, Ltd. v. Millennium Labs., Inc., 803 F.3d 518, 531 (11th Cir. 2015) (quoting United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726, 86 S. Ct. 1130, 1139 (1966)). The Court sees no reason to exercise jurisdiction over Plaintiffs’ state law claims.
Accordingly, after due consideration, it is
2 While the Court cites to the tentativeness of Plaintiffs’ standing, it does so with an eye toward denying Plaintiffs preliminary relief and not as a basis for dismissal for lack of jurisdiction.
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ORDERED:
- Plaintiffs’ Application for Injunctive Relief and Request for Emergency Temporary Restraining Order (Doc. 2) is DENIED.
- The Complaint (Doc. 1) is DISMISSED without prejudice.
2
Copies furnished to:
Counsel of Record
Copies furnished to:
Counsel of Record
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