Teens of Tomorrow v. City of Bellevue, Nebraska et al

Filing 106

MEMORANDUM AND ORDER denying the Plaintiff's 92 Motion for Reconsideration. Defendant City of Omaha's opposition to Plaintiff's Motion for Reconsideration 96 is sustained. Ordered by Senior Judge Lyle E. Strom. (MKR)

IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEBRASKA
TEENS OF TOMORROW, INC.

)
)
Plaintiff,
)
)
v.
)
)
CITY OF BELLEVUE, NEBRASKA;
)
CITY OF LINCOLN, NEBRASKA;
)
CITY OF OMAHA, NEBRASKA;
)
CITY OF PAPILLION, NEBRASKA; )
CITY OF LA VISTA, NEBRASKA;
)
CITY OF COLUMBUS, NEBRASKA;
)
and CITY OF RALSTON, NEBRASKA,)
)
Defendants.
)
______________________________)

8:13CV127

MEMORANDUM AND ORDER

This matter is before the Court on the motion of
plaintiff Teens of Tomorrow, Inc. (Filing No. 92, with brief,
Filing No. 93), filed pursuant to Federal Rule of Civil Procedure
60(b), for reconsideration of the Court’s recent order denying
plaintiff’s motion for a temporary restraining order (Memorandum
and Order, Filing No. 80 (“TRO Memorandum”)).

The motion for

reconsideration is directed to defendant City of Omaha, Nebraska,
only.

Defendant City of Omaha filed an opposition to the motion

for reconsideration (Filing No. 96, with brief, Filing No. 94,
and index of evidence, Filing No. 95).

After careful

consideration of the motion, the opposition, the briefs, the
evidence, and the relevant law, the Court finds that the motion
for reconsideration should be denied.

I.

Motion for Temporary Restraining Order.
In its motion for temporary restraining order,

plaintiff sought an order “[r]estraining and enjoining the
Defendant cities from serving [Teens of Tomorrow], its agents or
volunteers, with any citations, cease and desist orders, or
otherwise preventing

[Teens of Tomorrow] and its volunteers from

legally soliciting as a non-profit organization within city
limits” (Filing No. 37, at 1-2).

The Court heard arguments on

the motion on May 29, 2013; the City of Omaha did not attend the
hearing.
The Court analyzed plaintiff’s motion for temporary
restraining order by using the Eighth Circuit’s Dataphase
factors:

“[W]hether a preliminary injunction should issue

involves consideration of (1) the threat of irreparable harm to
the movant; (2) the state of the balance between this harm and
the injury that granting the injunction will inflict on other
parties litigant; (3) the probability that movant will succeed on
the merits; and (4) the public interest.”

Dataphase Sys., Inc.

v. C L Sys., Inc., 640 F.2d 109, 114 (8th Cir. 1981).

Because

the Court found that none of the Dataphase factors favored
plaintiff, the Court denied plaintiff’s motion.

The Court will

not revisit the entirety of its previous analysis but will
address the additional arguments made by plaintiff in its motion
for reconsideration with regard to the City of Omaha only.

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II.

Motion for Reconsideration.
A.

Legal Standard.

Federal Rule of Civil Procedure

60, Relief from a Judgment or Order, states:
(b) Grounds for Relief from a Final
Judgment, Order, or Proceeding. On
motion and just terms, the court
may relieve a party or its legal
representative from a final
judgment, order, or proceeding for
the following reasons:
(1) mistake, inadvertence,
surprise, or excusable neglect;
(2) newly discovered evidence that,
with reasonable diligence, could
not have been discovered in time to
move for a new trial under Rule
59(b);
(3) fraud (whether previously
called intrinsic or extrinsic),
misrepresentation, or misconduct by
an opposing party;
(4) the judgment is void;
(5) the judgment has been
satisfied, released or discharged;
it is based on an earlier judgment
that has been reversed or vacated;
or applying it prospectively is no
longer equitable; or
(6) any other reason that justifies
relief.
Fed. R. Civ. P. 60(b).

“By its terms, . . . Rule 60(b)

encompasses a motion filed in response to an order.”
Norris, 193 F.3d 987, 989 (8th Cir. 1999).

Broadway v.

“Under Rule 60(b) the

movant must demonstrate exceptional circumstances to justify

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relief.”

Brooks v. Ferguson–Florissant Sch. Dist., 113 F.3d 903,

905 (8th Cir. 1997).
such relief:

Simple reargument will not result in any

“In their ‘motion for reconsideration,’ defendants

did nothing more than reargue, somewhat more fully, the merits of
their claim . . . .

This is not the purpose of Rule 60(b).”

Broadway, 193 F.3d at 989-90.

“It authorizes relief based on

certain enumerated circumstances (for example, fraud, changed
conditions, and the like).

It is not a vehicle for simple

reargument on the merits.”

Id. at 990.

B.

Discussion.

Plaintiff now states that it “believes

that the court overlooked key evidence when making its final
decision, and therefore was in error” (Filing No. 93, at 2).
Plaintiff states that with regard to the Court’s analysis of
plaintiff’s Exhibit 10C, “the Court incorrectly presumed that the
Plaintiff’s difficulties with the City of Omaha have been
resolved” (Id.).

The Court notes that in Exhibit 10C,

plaintiff’s agent, Quenton Pfitzer, represented to the Court that
the offending Omaha police officer that “was stopping me and even
ticket one of my kids made us leave the area in front of a pastor
and the kid got convicted of the charges . . . stopped [doing so]
after I made many complaints to Internal affairs" (Pl. Ex. 10C).
Accordingly, in acknowledging that this aspect of plaintiff’s
difficulties “appear[ed] to be resolved,” the Court was

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summarizing what was explicitly stated by Mr. Pfitzer in his
affidavit.
Plaintiff also asks the Court to revisit the statements
made in plaintiff’s Exhibit 11, Mr. Pfitzer’s affidavit
describing his potential legal troubles.

Plaintiff avows that

the affidavit “states a blatant example of the ongoing risk of
irreparable harm that may be suffered” (Filing No. 93, at 2).
The Court previously found that the affidavit, if true, “states a
real but limited threat of irreparable harm to plaintiff’s agent,
Mr. Pfitzer.

The threat of irreparable harm to plaintiff as a

result of Mr. Pfitzer’s potential legal troubles is unclear” (TRO
Memorandum, at 8).

With the present motion, plaintiff does

clarify the situation by stating,
Pfitzer’s probation officer
informed him that even one more
citation from Omaha would be viewed
as a violation of his probation.
Because of this action by the
Defendant, even one more unfounded
citation could result in the
revocation of Pfitzer's probation,
holding him in contempt of court
and jailing him for the remainder
of his probation period, pursuant
to Iowa State Code § 908.11.
Pfitzer is the Executive Director
of Teens of Tomorrow and the only
adult supervisor person who is
trained and primarily operates its
daily functions. As such, his
incarceration would prevent the
Plaintiff from being able to
operate anymore, severely limiting
or ending the Plaintiff

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organization, and thereby causing
irreparable harm.
(Filing No. 93, at 3).
With its response, defendant City of Omaha submitted an
affidavit signed by David Baker, Deputy Chief of Police of the
City of Omaha.

Deputy Chief Baker’s affidavit states that

plaintiff “submitted [a] written statement” showing its taxexempt status, which would in turn “authorize [its] volunteers to
be exempt from obtaining a permit” (Ex. 1, Filing No. 95, at
¶¶ 5, 6).

In addition, “the information [in the written

statement] is on file in the Omaha Police Department” (Ex. 1,
Filing No. 95, at ¶ 6).

Consequently, Deputy Chief Baker states

that “at the present time, I do not know of any reason why
Plaintiff would be barred from soliciting in the City of Omaha”
(Ex. 1, Filing No. 95, at ¶ 7).

Thus it appears that absent an

actual violation of a city ordinance, plaintiff is not under a
threat of irreparable harm from the City of Omaha.

On

reconsideration, the Court finds that this first Dataphase factor
does not favor plaintiff.
The remainder of plaintiff’s brief does “nothing more
than reargue, somewhat more fully, the merits of [its] claim . .
. .”

Broadway, 193 F.3d at 989-90.

The Court finds that

plaintiff’s motion does not reach any of the specific grounds for
relief delineated in Rule 60(b), nor does it adequately establish

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“exceptional circumstances to justify relief.”
at 905.

Brooks, 113 F.3d

As a result, the Court finds that plaintiff’s motion for

reconsideration should be denied.

Accordingly,

IT IS ORDERED:
1) Plaintiff’s motion for reconsideration (Filing No.
92) is denied; and
2) Defendant City of Omaha’s opposition to plaintiff’s
motion for reconsideration (Filing No. 96) is sustained.
DATED this 8th day of July, 2013.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court

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