United States District Court, E.D. North Carolina, Western Division
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For Tom Price, William Legg, Plaintiffs: Deborah J. Dewart, LEAD ATTORNEY, Deborah J. Dewart, Attorney at Law, Swansboro, NC; Nathan W. Kellum, LEAD ATTORNEY, Alliance Defense Fund, Memphis, TN.
For City of Fayetteville, North Carolina, Katherine Bryant, in her official capacity as Chief of Police for the Fayetteville Police Department, William Randolph Sessoms, individually and in his official capacity as Police Officer for Fayetteville Police Department, Defendants: Andrew H. Erteschik, Edwin M. Speas, Jr., LEAD ATTORNEYS, Poyner Spruill LLP, Raleigh, NC; Karen M. McDonald, LEAD ATTORNEY, City of Fayetteville, Fayetteville, NC; Jeffrey D. Bradford, City Attorney's Office, Fayetteville, NC.
LOUISE W. FLANAGAN, United States District Judge.
This matter is before the court on defendants' motion for judgment on the pleadings, pursuant to Federal Rule of Civil Procedure 12(c), and motion to dismiss plaintiff's claims for permanent injunctive and declaratory relief as moot, pursuant to Federal Rule of Civil Procedure 12(b)(1). (DE 50, 51). Plaintiffs responded in opposition, and defendants replied. In this posture, the issues raised are ripe for ruling. For the reasons that follow, the court denies defendants' motions.
STATEMENT OF THE CASE
Plaintiffs commenced this action on March 1, 2013, under 42 U.S.C. § § 1983 and 1988, seeking injunctive relief, declaratory relief, and nominal damages against defendants for asserted deprivation of plaintiffs' fundamental right to free speech under the First Amendment and right to due process of law, in connection with plaintiffs' interest in distributing religious literature at the 2012 Fayetteville Dogwood Festival (" Dogwood Festival" ), and future annual Dogwood Festivals. In particular, plaintiffs seek the following relief, as pertinent to the present order:
(1) Nominal damages arising from acts of defendants during the 2012 Dogwood Festival.
(2) A declaratory judgment declaring that acts of defendants during the 2012 Dogwood Festival violated plaintiffs' constitutional rights.
(3) A declaratory judgment declaring that a ban imposed on literature distribution during the annual Dogwood Festival is unconstitutional on its face and as applied to plaintiffs' expression.
(4) A permanent injunction enjoining defendants from applying a ban on literature distribution so as to restrict constitutionally-protected speech of speakers, including plaintiffs, as well as unnamed third parties, on the public ways in Fayetteville, North Carolina, during the annual Dogwood Festival.
(5) Award plaintiffs their costs and expenses of this action, including reasonable attorneys' fees.
In conjunction with their original complaint, on March 1, 2013, plaintiffs filed a motion for preliminary injunction in which they sought to enjoin defendants " from applying policy that facilitates a ban on literature distribution, on its face and as-applied, so as to prevent [plaintiffs] and third party individuals from engaging in literature distribution on public ways in downtown Fayetteville during the 2013 Fayetteville Dogwood Festival, future Dogwood Festivals, and other festivals taking place in downtown Fayetteville." (Mot. for Prelim. Inj. 1). Following hearing and upon consideration of briefs and exhibits submitted by the parties, the court entered an order on April 23, 2013, denying the preliminary injunction motion, which order contained findings of facts on the record then before the court and conclusions of law.
Plaintiffs appealed the court's denial of their preliminary injunction motion, and upon plaintiffs' motion the court stayed all further case activity pending the appeal. The court of appeals dismissed the appeal on December 11, 2013, and the mandate issued on January 2, 2014. Plaintiffs filed a second motion for preliminary injunction that same date, including new factual assertions and exhibits based upon the 2013 and 2014 Dogwood Festivals. The second motion for preliminary injunction sought
to enjoin defendants from " applying and/or enforcing policy that bans literature distribution, on its face and as-applied, so as to prevent Price, Legg and third party individuals from engaging in literature distribution on public ways in downtown Fayetteville during the 2014 Dogwood Festival . . . or any future Dogwood Festival." (Second Mot. for Prelim. Inj. 1).
On January 15, 2014, the court lifted the stay and held a Rule 16 status hearing at which the parties agreed to attend a court-hosted settlement conference during the first two weeks of February 2014. Meanwhile, defendants filed on January 30, 2014, an initial response in opposition to plaintiffs' motion, in which defendants asserted as previewed at hearing that the motion is moot because the city is not, and will not be, enforcing the restriction plaintiffs seek to enjoin.
Following court-hosted settlement conference held on February 11, 2014, the parties tendered a proposed consent order stating that the parties resolved between themselves plaintiffs' second motion for preliminary injunction. In particular, the consent order states that the parties agreed that defendants " will not enforce the current literature distribution rule promulgated by Dogwood Festival, Inc." (DE 47). The court retained jurisdiction to enforce the parties' agreement and to resolve the remaining claims set out in plaintiffs' complaint.
The court directed the parties to meet and cover and develop a joint report and plan for remaining case deadlines and disposition. In the meantime, on March 11, 2014, defendants filed the instant pending motions. On March 20, 2014, plaintiff filed a stipulation allowing plaintiff to file an amended complaint, which is identical in all material respects to the original complaint, except that it adds the identity of the " John Doe" defendant named in the original complaint and it is not verified as the original complaint. On the same date, the parties filed a joint report and plan suggesting a period of discovery to commence May 31, 2014. On the basis of the parties' joint report and plan, the court has entered a case management order that includes a period of discovery running from May 31, 2014, to September 30, 2014, and sets a dispositive motions deadline for October 31, 2014.
Plaintiffs filed their opposition to defendants' motion for judgment on the pleadings and motion to dismiss on April 1, 2014, and defendants replied on April 17, 2014.
STATEMENT OF FACTS
As pertinent to the motion for judgment on the pleadings, the allegations in the complaint may be summarized as follows. The Dogwood Festival is a festival held annually each April in downtown Fayetteville, North Carolina, in an area spanning various public streets and city parks. The Dogwood Festival is free and open to the public, and events taking place include musical acts and other forms of entertainment, food vendors, and booths for arts, crafts, and other activities. While many public streets are closed for vehicular traffic, there are no barriers hindering ...