Burns v. Town of Palm Beach

343 F.Supp.3d 1258

Donald BURNS, Plaintiff,

v.TOWN OF PALM BEACH, Defendant.

CASE No. 17-cv-81152-BLOOM/Reinhart

United States District Court, S.D. Florida.

Signed September 28, 2018

Jennifer A. Mansfield, Holland & Knight LLP, Jacksonville, FL, for Plaintiff.

Joanne M. O'Connor, Margaret Leslie Cooper, John Cater Randolph, Jones Foster Johnston & Stubbs, West Palm Beach, FL, for Defendant.

ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

BETH BLOOM, UNITED STATES DISTRICT JUDGE

THIS CAUSE is before the Court upon Defendant's Motion to Dismiss and/or for Summary Judgment, ECF No. [21], (the "Motion"). The Motion was previously referred to the Honorable Bruce E. Reinhart for a Report and Recommendation. See ECF No. [53]. On July 13, 2018, Judge Reinhart issued a Report and Recommendation, ECF No. [93] ("Report"), recommending that the Motion be granted and that judgment be entered in favor of Defendant, the Town of Palm Beach ("Defendant" or "Town").

The Report advised that a party shall serve and file written objections, if any, to this Report and Recommendation within 14 days of being served with a copy of this Report and Recommendation. ECF No. [93] at 45. Plaintiff timely filed Objections, ECF No. [96] ("Objections"), and Defendant filed a Response to Plaintiff's Objections, ECF No. [102] ("Response"). The Court has also considered Plaintiff's Notice of Supplemental Authority, ECF No. [105], and Defendant's Notice of Supplemental Authority, ECF No. [112]. The Court has considered the filings and is now duly advised.

I. BACKGROUND

The Court adopts Judge Reinhart's description of the record, the parties' legal arguments, and the undisputed material facts, Report at 3–12, and incorporates these discussions by reference herein.

II. LEGAL STANDARD

A. Summary Judgment

Neither party objects to Judge Reinhart's recitation of the legal standard for summary judgment, which is correct and adopted herein. Report at 15.¹

III. ANALYSIS

Plaintiff lodges four objections to Judge Reinhart's Report, arguing that the Report: (1) errs by recommending that the Motion be granted while discovery is open; (2) improperly inserts a dominant expressive purpose test into the First Amendment expressive conduct test; (3) erred in concluding that Section 18-205 is not void for vagueness; and (4) improperly analyzes the equal protection challenge. The Court reviews the objected portions of the Report de novo and addresses each in turn. See Fed. R. Civ. P. 72(b)(3).

A. Objection Number One: The Report Erred by Recommending that the Motion be Granted While Discovery is Open

Plaintiff first objects to the Report's recommendation that the Court grant summary judgment prior to the close of discovery. Objections at 2–3. The Eleventh Circuit has made clear that district courts are "not required to await the completion of discovery before ruling on a motion for summary judgment." Fla. Power & Light Co. v. Allis Chalmers Corp. , 893 F.2d 1313, 1316 (11th Cir. 1990) ; Reflectone, Inc. v. Ferrand Optical Co., Inc. , 862 F.2d 841, 843–44 (11th Cir. 1989). If a party needs further discovery to respond to a motion for summary judgment, under Federal Rule of Civil Procedure 56(d), the party may show "by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition." Fed. R. Civ. P. 56(d). If the party makes this showing, the court may "(1) defer considering the motion or deny it; (2) allow time to obtain affidavits or declarations or to take discovery; or (3) issue any other appropriate order." Id.

Plaintiff filed a Rule 56(d) declaration on December 22, 2017. ECF No. [41]. However, as Judge Reinhart explained, after filing this declaration, Plaintiff had five months to take any necessary discovery prior to the hearing on the Motion on May 27, 2018. Report at 2 n.1. Judge Reinhart found that Plaintiff waived any objection to the Court ruling on the Motion based on a lack of sufficient discovery because Plaintiff fully briefed a response to the Motion and participated in oral argument. See id.(citing Pasternak v. Lear Petroleum Exploration, Inc. , 790 F.2d 828, 833 (10th Cir. 1986) and Villa v. Bd. of Cty. Comm'rs of the Cty. of Arapahoe, No. 90-1058, 1991 WL 70714 at *4 (10th Cir. May 1, 1991) ).

Plaintiff argues that the Report erred in finding that he waived this objection because he reiterated the need to complete discovery multiple times. Objections at 2. He also argues that Pasternak is inapposite because there no party notified the court of the need for additional discovery and discovery had been going on for a year. Id. at 3. In addition, Pasternak was decided in 1986, and Rule 56 has undergone revisions since then. Id.

The Court agrees with Judge Reinhart that Plaintiff waived any objection to ruling on the Motion before the close of discovery. Plaintiff attempts to distinguish Pasternak , but does not address the Tenth Circuit's holding in Villa that when "a party has responded to a summary judgment motion under 56(e), that party waives any option it may have had to proceed under Rule 56 [d]." Villa, 1991 WL 70714 at *4. Moreover, the general principal set forth by the Tenth Circuit in Pasternak that "[t]he protection afforded by Rule 56 [d] is an alternative to a response in opposition to summary judgment under 56(e) and is designed to safeguard against a premature or improvident grant of summary judgment," Pasternak , 790 F.2d at 833, has also been adopted by the Fifth Circuit. See Washington v. Allstate Ins. Co. , 901 F.2d 1281, 1285 (5th Cir. 1990). Although as Plaintiff states, these cases interpret Rule 56(d)'s predecessor, Rule 56(f), they are still applicable because the rule has not substantially changed. See WRIGHT & MILLER, FEDERAL PRACTICE AND PROCEDURE § 2740 (4th ed. 2018) ("When Rule 56 was rewritten in 2010, those provisions were moved to a new subdivision (d), without any substantial change. Thus, precedent prior to 2010 citing Rule 56(f) is fully applicable to current Rule 56(d) ); see also Smedley v. Deutsche Bank Trust Co. Ams. , 676 F. App'x 860, 861–62 (11th Cir. 2017) (relying on cases analyzing former Rule 56(f) to interpret current Rule 56(d) ).

Even if Plaintiff did not waive the objection by responding to the Motion, his declaration is insufficient to satisfy Rule 56(d). "In seeking the protection of Rule 56(d), the non-movant must show that ‘postponement of a ruling on the motion will enable [him], by discovery or other means, to rebut the movant's showing of the absence of a genuine issue of fact ... [V]ague assertions that additional discovery will produce needed, but unspecified facts’ fail to meet this burden." See Smedley , 676 F. App'x at 861–62 (citing Fla. Power & Light Co. , 893 F.2d at 1316 ). Plaintiff's 56(d) declaration did not specifically demonstrate facts he could discover that would rebut the Motion. Instead, it listed general categories of discovery that would be sought. See ECF No. [41] at ¶ 4 ("Discovery that Plaintiff intends to take in this case include obtaining official records, recordings, and transcripts of ARCOM hearings..."); ¶ 5 ("Plaintiff also intends to take discovery on the legislative history of the Special Exception ordinances and ARCOM ordinances..."); ¶ 7 ("Plaintiff intended to obtain expert testimony..."). In addition, Plaintiff has not provided any reason why he could not have obtained this discovery during the five months before the hearing on the Motion. The ARCOM hearing transcripts and legislative history of the Ordinances are public records, and Plaintiff could have retained an expert to provide an expert opinion. Accordingly, the Report properly concluded that it was appropriate for the Court to rule on the Motion prior to the close of discovery.

B. Objection Number 2: The Report Improperly Inserts a Dominant Expressive Purpose Test into the First Amendment Expressive Conduct Test

Plaintiff contends that architecture and architectural design are forms of expression protected by the First Amendment. Report at 17. To that end, he argues that the proposed residential structure was visual art that intrinsically expressed Plaintiff's personal values. Id. Plaintiff consequently asserts the Town violated his First Amendment rights to create and display this art through ARCOM's denial. Judge Reinhart ultimately recommended that Plaintiff's First Amendment claims be denied.

Chiefly, Plaintiff challenges Judge Reinhart's application of the dominant expressive purpose test, discussed in Mastrovincenzo v. City of New York , 435 F.3d 78 (2d Cir. 2006), to the expressive conduct test, discussed in Texas v. Johnson , 491 U.S. 397, 404, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989).

Judge Reinhart accurately addressed the scope of First Amendment protection. The First Amendment prohibits the government from "restrict[ing] expression because of its message, its ideas, its subject matter, or its content." Nevada Comm'n on Ethics v. Carrigan , 564 U.S. 117, 121, 131 S.Ct. 2343, 180 L.Ed.2d 150 (2011) (quoting Ashcroft v. ACLU , 535 U.S. 564, 573, 122 S.Ct. 1700, 152 L.Ed.2d 771 (2002) ). However, because "[i]t is possible to find some kernel of expression in almost every activity a person undertakes," City of Dallas v. Stanglin , 490 U.S. 19, 25, 109 S.Ct. 1591, 104 L.Ed.2d 18 (1989), First Amendment protections extend only to "conduct that is inherently expressive." Rumsfeld v. Forum for Academic & Inst'l Rights, Inc. , 547 U.S. 47, 66, 126 S.Ct. 1297, 164 L.Ed.2d 156 (2006) ; U.S. v. O'Brien , 391 U.S. 367, 376, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1998) ("We cannot accept the view that an apparently limitless variety of conduct can be labeled ‘speech’ whenever the person engaging in the conduct intends thereby to express an idea.").

Judge Reinhart noted that both parties suggest similar tests for determining whether Plaintiff's proposed residence qualifies as First Amendment expression. Report at 18. That is, both parties suggest some version of the J...