Strangmeier v. The City of Houston Texas et al

Filing 24

MOTION to Supplement Plaintiff's 1st Amended Original Complaint as to 13 Amended Complaint/Counterclaim/Crossclaim etc. by John Strangmeier, filed. Motion Docket Date 2/27/2012. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Proposed Order)(Kallinen, Randall)

IN THE UNITED STATES DISTRICT COURT
SOUTHERN DIVISION OF TEXAS
HOUSTON DIVISION
JOHN STRANGMEIER,
INDIVIDUALLY, and on behalf of a
Class of All Similarly Situated Persons,
Plaintiff,

)(
)(
)(

CIVIL ACTION NO.: 4:11-cv-3463

V.

)(

THE CITY OF HOUSTON, TEXAS,
and MAYOR ANNISE PARKER,
INDIVIDUALLY;

)(

JURY TRIAL

)(

LEAVE TO FILE COMPLAINT SUPP.

Defendants. )(

PLAINTIFF’S MOTION FOR LEAVE TO FILE:
PLAINTIFF’S 1ST SUPPLEMENT TO: PLAINTIFF’S 1ST AMENDED
ORIGINAL COMPLAINT & REQUEST FOR CLASS CERTIFICATION
NOW COMES Plaintiff JOHN STRANGMEIER and moves the Court for leave to file
a supplements his Plaintiff’s 1st amended original complaint & request for class certification
pursuant to FRCP 15(d) and will show the Court the following:

Plaintiff requests leave to file the following supplement:1
SUPPLEMENT TO “FACTS” SECTION
26a.

Strangmeier lost the September 20, 2011, hearing challenge and set his RLC ticket

for the last appeal possible under City ordinance2 on October 28, 2011, in Houston Municipal

1
2

See Exhibit B supplemental pleading which plaintiff requests be filed.
Said ordinance being totally void as the November 2, 2010 City certified election nullified it.

PLAINTIFF’S SUPPLEMENT TO 1st AMENDED ORIGINAL COMPLAINT

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Court #1. Strangmeier attended-by driving about 50 miles and using up two and half hours--and
presented arguments, however, lost the October 28, 2011, hearing. See Exhibit 1, filed brief on
RLC ticket appeal (further argument was offered orally). That judgment was final there being no
further appeals possible.
26b.

On January 24, 2012, the U.S. Fifth Circuit Court of Appeals overturned the denial

of the Kuboshes’ motion to intervene and for new trial in Civil Action No.: 4:10-cv-4545 and the
issue of the November 2, 2010, election validity was again before the court.34 Presently, the June
17, 2011, interlocutory order is void so Strangmeier’s RLC ticket and the 15,000 or so other RLC
tickets which were received after the City certified the November 2, 2010, election are wholly
unwarranted under the law. The City of Houston participates in a program with the State of
Texas whereby the owners of the vehicles which have received RLC tickets which remain
unpaid cannot register those cars to renew their license plates or get registration stickers making
the thousands up to over 10,000 vehicles illegal to drive. As of February 3, 2012 approximately
$1,176,000 of RLC citation has been put into the Registry of the court in Civil Action No.: 4:10cv-4545 the majority illegally obtained from Strangmeier and the class of individuals who
received RLC tickets after the City certified the November 2, 2010, majority vote and City

3

Strangmeier has filed a motion to intervene February 2, 2012, and to consolidate with the
instant case.
4
The City of Houston filed a declaratory judgment lawsuit against Houston’s RLC vendor
American Traffic Solutions Inc. (ATS), Civil Action No.: 4:10-cv-4545. ATS countersued
claiming the November 2, 2010, election was invalid. Randall and Francis Kubosh (The
Kuboshes) who were the charter amendment petitioners and organizers attempted to intervene
November 30, 2010, but such motion was denied December 12, 2010, as was a motion to
reconsider with request for new trial filed January 7, 2011. The Kuboshes filed appeal of the
intervention and new trial denial to the U.S. Fifth Circuit Court of Appeals (Case No.: 1120068). On June 17, 2011, the Court ruled on a summary judgment motion and entered an
interlocutory order that the Houston charter amendment outlawing RLCs in Houston was void
opining the November 2, 2010, City-approved and certified majority vote was void.
PLAINTIFF’S SUPPLEMENT TO 1st AMENDED ORIGINAL COMPLAINT

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policymaker Mayor Parker unilaterally ultra-vires turned the RLC cameras back.
26c.

On February 2, 2012 Strangmeier filed a motion to intervene in Civil Action No.:

4:10-cv-4545 as the issue of the November 2, 2010 election validity is back before that Court
(also Hon. Lynn N. Hughes) and because of the funds in the Court’s registry therein are the
rightful property of Strangmeier and similarly situated individuals of the purported class and to
consolidate with the instant case.
ARGUMENT
This case was filed September 23, 2011. October 13, 2012, the defendants filed a motion
to dismiss. October 14, 2012, the Court entered an Order limiting plaintiff’s right to amend as a
matter of course under FRCP 15 by only allowing 8 days to amend (rather than 21) and
threatening monetary sanctions if the amendment was not “useful.” 5 See Exhibit 1.
Plaintiff filed an amended complaint October 21, 2011. October 27, 2011, the defendants
filed an amended motion to dismiss. November 17, 2012, plaintiff filed a response to the motion
to dismiss.
FRCP 15d provides that:
(d) Supplemental Pleadings. On motion and reasonable notice, the court may, on
just terms, permit a party to serve a supplemental pleading setting out any
transaction, occurrence, or event that happened after the date of the pleading to
be supplemented. The court may permit supplementation even though the original
pleading is defective in stating a claim or defense. The court may order that the
opposing party plead to the supplemental pleading within a specified time.
The federal practice is to liberally allow supplemental pleadings. Camilla Cotton Oil Co. v.
Spencer Kellogg & Sons, 257 F.2d 162 (5th Cir. 1958). The events described in the supplement

5

Plaintiff objects to the limiting of his right to amend under FRCP 15 and the sanctions caveat
for amendment which is not “useful.”
PLAINTIFF’S SUPPLEMENT TO 1st AMENDED ORIGINAL COMPLAINT

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occurred after the last allowed amended complaint. The facts show that the U.S. Fifth Circuit of
Appeals has allowed intervention is a case (Civil Action 4:10-cv-4545, the Hon. Lynn N.
Hughes, presiding) which previously had disposed of the issue of the validity of the November 2,
2010 election, the main issue in the instant case.
Also, Strangmeier completed all the City processes and appeals to challenge his RLC ticket
October 28, 2012 (even though the ticket was issued ultra-vires with no statutory or other
authority). While Strangmeier asserts he does not have to exhaust his administrative remedies to
maintain this action the defendants differ and say he does so Strangmeier sets forward these facts
that occurred after the court-ordered plaintiffs amended complaint deadline.
PRAYER
Plaintiff respectfully requests this motion be Granted and the supplement be filed and for
all other relief in law and equity to which plaintiff shows himself entitled.
.

RESPECTFULLY SUBMITTED,
LAW OFFICE OF RANDALL L KALLINEN PLLC

BfB etÇwtÄÄ _A ^tÄÄ|ÇxÇ
_______________________________________
Randall L. Kallinen
State Bar of Texas No. 00790995
U.S. Southern District of Texas Bar No.: 19417
Admitted, Fifth U.S. Circuit Court of Appeals
Admitted, U.S. Eastern District of Texas
511 Broadway Street
Houston, Texas 77012
Telephone:
713/320-3785
FAX:
713/893-6737
E-mail:
[e-mail]
Attorney for Plaintiff

PLAINTIFF’S SUPPLEMENT TO 1st AMENDED ORIGINAL COMPLAINT

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CERTIFICATE OF CONFERENCE
I certify that I have attempted to confer by e-mailing counsel for defendants on February
5, 2012, about the relief requested. As a motion to dismiss is pending, plaintiff assumes
opposing counsel will be OPPOSED and feels as such motion is pending plaintiff must file the
instant motion immediately. If opposing counsel is found to be unopposed then plaintiff shall
amend this certificate.
/S/ Randall L. Kallinen
______________________________
Randall L. Kallinen

CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing Motion was served in
accordance with the Federal Rules of Civil Procedure and the ECF system of the U.S. Southern
District of Texas on this the 5th day of February, 2012.
Elizabeth L. Stevens, atty.
Andrea Chan, atty.
City of Houston Legal Department
P.O. Box 368
Houston, Texas 77001-0368

BfB etÇwtÄÄ _A ^tÄÄ|ÇxÇ
____________________________________
Randall L. Kallinen

PLAINTIFF’S SUPPLEMENT TO 1st AMENDED ORIGINAL COMPLAINT

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