Cayton Development, LLC, Anduril Stragegy LLC, and Vail, LLC

Case: 2:20-cv-00096-DLB-CJS Doc #: 35 Filed: 08/25/20 Page: 1 of 2 - Page ID#: 300
UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF KENTUCKY
COVINGTON DIVISION
GREATER CINCINNATI NORTHERN : Case No. 2:20-CV-00096

KENTUCKY APARTMENT ASSN.,
et. al. :
v. :
HON. ANDREW BESHEAR :
PLAINTIFFS MOTION FOR LEAVE TO FILE SUPPLEMENTAL COMPLAINT
Plaintiffs, the Greater Cincinnati Northern Kentucky Apartment Association
(“GCNKAA”), Cayton Development, LLC, Anduril Stragegy LLC, and Vail, LLC, move this
Court for an Order permitting them to file a Supplemental/Amended Complaint under FRCP
15(d). This Supplemental Complaint addresses certain changes that have occurred since the
filing of this matter, namely: (a) a Kentucky Supreme Court Oder entered in early August, 2020,
which has permitted forcible entry and detainer actions to be filed; and (b) a August 24, 2020,
Executive Order by the Defendant. A Memorandum in Support is attached; so is the tendered
Supplemental/Amended Complaint, and a Proposed Order is attached. Plaintiffs also tender an
amendment to their Motion for Preliminary Injunction, which addresses these changes, for filing
if the Supplemental Complaint is permitted by the Court.
Respectfully submitted,
/s/ Christopher Wiest___________

Christopher Wiest (KBA 90725)
Chris Wiest, Atty at Law, PLLC
25 Town Center Blvd, Suite 104
Crestview Hills, KY 41017
513/257-1895 (c)
859/495-0803 (f)
chris@cwiestlaw.com
Counsel for Plaintiffs
Case: 2:20-cv-00096-DLB-CJS Doc #: 35 Filed: 08/25/20 Page: 2 of 2 - Page ID#: 301
/s/ Alexander F. Edmondson

Alexander F. Edmondson (88406)
EDMONDSON & ASSOCIATES
28 West Fifth Street
Covington, KY 41011
859-491-5551 tel
859-491-0187 fax
aedmondson@edmondsonlaw.com
Co-Counsel for Plaintiffs
CERTIFICATE OF SERVICE
I certify that I have served a copy of the foregoing, this 25 day of August, 2020, by filing
a copy of the foregoing in the Court’s CM/ECF system, which will provide notice to all parties
of record.

Case: 2:20-cv-00096-DLB-CJS Doc #: 35-1 Filed: 08/25/20 Page: 1 of 4 - Page ID#: 302

COVINGTON DIVISION

et. al. :
v. :
MEMORANDUM IN SUPPORT OF PLAINTIFFS MOTION FOR LEAVE TO FILE

SUPPLEMENTAL COMPLAINT
I. Facts
Plaintiffs filed the within action on July 7, 2020, following a four-month eviction
moratorium put into place by the Governor of Kentucky. [RE#1]. The actions by Governor
Beshear foreclosed the ability of the Plaintiffs to obtain possession of their own property from
their tenants through Court process. Id. Plaintiffs sued the Kentucky Governor, along with the
Circuit Court Clerks that had been refusing their filings. Id.
The Court sent this matter to mediation, but those efforts were ultimately unsuccessful.
[RE#27]. In the meantime, the Kentucky Supreme Court lifted its ban on filings, leaving
Governor Beshear as the sole impediment to forcible entry and detainer filings, and so the Circuit
Clerks were dismissed. [RE#23]. The parties recently, this past Friday, completed briefing this
case, and a preliminary injunction hearing was scheduled for September 2, 2020. [RE#32;
RE#33].
And then, yesterday, August 24, 2020, Governor Beshear amended his executive order;
that order in many respects made things worse: he has impaired and destroyed not only existing
contractual rights, but fully collected and vested contractual rights to payments (and indeed, not
only uncollected late fees, but in some cases late fees actually received) that the Plaintiffs have
1
already received or had the rights to under their contracts. [RE#34]. He has “permitted”
evictions for nonpayment, but further impaired contractual notice rights before the Plaintiffs can
have access to courts. Id. His actions, again, continue to implicate constitutional rights (as set
forth in the tendered Supplemental Motion for Preliminary Injunction), and the tendered
Supplemental/Amended Complaint allege. Id.
II. Law and Argument
FRCP 15(d) provides, in relevant part:
(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.
Leave to amend pleadings is to be freely permitted "when justice so requires." Fed. R.
Civ. P. 15(a); Hodak v. Madison Capital Mgmt., 2010 U.S. Dist. LEXIS 977 (KYED 2010). "In
the absence of any apparent or declared reason -- such as undue delay, bad faith or dilatory
motive on the part of the movant, repeated failure to cure deficiencies by amendments previously
allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility
of the amendment, etc., the leave should, as the rules require, be 'freely given.'" Foman v. Davis,
371 U.S. 178, 182 (1962).
Where the supplemental complaint involves the same parties, and related actions, leave to
file should be granted. Northeast Ohio Coalition for the Homeless v. Husted, 837 F.3d 612, 625
(6th Cir. 2016). The standards for such a motion were discussed in Brian A. v. Bredesen, 2009
U.S. Dist. LEXIS 112890 (MDTN 2009). "A supplemental pleading differs from an amended
pleading in two respects: an amended pleading relates to matters which occurred prior to the
filing of the original pleading and entirely replaces such pleading; a supplemental pleading
2
addresses events occurring subsequent to the initial pleading and adds to such pleading." Id.,
citing Habitat Education Center, Inc. v. Kimbell, 250 F.R.D. 397, 401 (E.D. Wis. 2008).
"A supplemental pleading promotes as complete an adjudication of the dispute between
the parties as possible." Id., citing Habitat, 250 F.R.D. at 401. "It is a tool of judicial economy
and convenience which serves to avoid the cost, delay and waste of separate actions which must
be separately tried and prosecuted." Id.
"A supplemental pleading may include new facts, new claims, new defenses, and new
parties." Id. "Such events need not arise out of the same transaction or occurrence as the original
claim, so long as they bear some relationship to the original pleading." Id. "In considering
whether to allow a plaintiff to supplement its complaint, the Court should consider (1) undue
delay in filing the motion; (2) lack of notice to adverse parties; (3) whether the movant is acting
in bad faith or with a dilatory motive; (4) failure to cure deficiencies by previous amendments;
(5) the possibility of undue prejudice to adverse parties; and (6) whether the amendment is
futile." Id., citing Bromley v. Michigan Education Ass'n-NEA, 178 F.R.D. 148, 154 (E.D. Mich.
1998).
Plaintiffs have moved for leave the day after the Governor has entered his updated order,
and thus there is no undue delay. There is no lack of notice, because the Governor’s actions are
the impetus for this Supplemental Complaint. Nor is there any bad faith or dilatory motive: these
Plaintiffs have an interest in a prompt adjudication. This Complaint does not deal with any prior
court findings of deficiencies in the complaint, and so the fifth factor is not at issue. And the
amendment is not futile.
III. CONCLUSION
Leave, therefore, should be granted.
3

513/257-1895 (c)
859/495-0803 (f)
chris@cwiestlaw.com

Covington, KY 41011
859-491-5551 tel
859-491-0187 fax
I certify that I have served a copy of the foregoing, this 25 day of August, 2020, by filing
a copy of the foregoing in the Court’s CM/ECF system, which will provide notice to all parties
of record.

4

COVINGTON DIVISION

et. al. :
v. :
ORDER ON PLAINTIFFS MOTION FOR LEAVE TO FILE SUPPLEMENTAL

COMPLAINT
The Court, being fully apprised, finds Plaintiffs’ Motion to file Supplemental Complaint under
FRCP 15 well taken, and it is therefore GRANTED. Further, the Motion and Memorandum to
Supplement the Request for Preliminary Injunctive Relief, tendered with the Supplemental
Complaint, which extends the request for relief to the August 24, 2020 Executive Order, is also
ordered to be filed.
IT IS SO ORDERED:
________________________________
Case: 2:20-cv-00096-DLB-CJS Doc #: 35-3 Filed: 08/25/20 Page: 1 of 41 - Page ID#:
307
IN THE UNITED STATES DISTRICT COURT

NORTHERN DIVISION (at Covington)
GREATER CINCINNATI NORTHERN : Case No: 2:20-CV-00096-DLB-CJS

KENTUCKYAPARTMENT ASSOCIATION
c/o Christopher Wiest, Esq. :
25 Town Center Blvd, STE 104
Crestview Hills, KY 41017 :
And :
ANDURIL STRAGEGY LLC :

c/o Christopher Wiest, Esq.
25 Town Center Blvd, STE 104 :
:
And
:
CAYTON DEVELOPMENT, LLC
c/o Christopher Wiest, Esq. :
Crestview Hills, KY 41017 :
And :
VAIL, LLC :
c/o Christopher Wiest, Esq.
25 Town Center Blvd, STE 104 :
:
Plaintiffs
:
v.
:
Hon. ANDREW BESHEAR
700 Capitol Ave, Suite 100 :
Frankfort, KY 40601
In his official capacity only :
Defendant
1
308
PLAINTIFFS’ VERIFIED SUPPLEMENTAL/AMENDED COMPLAINT FOR

DECLARATORY RELIEF AND INJUNCTION
Introduction and Background
1. This action challenges Kentucky Governor Andrew Beshear’s closing of Kentucky
Courts to landlords for the non-payment of rent, while leaving those same courts open for
tenants to sue landlords, and without ensuring that Kentucky’s property owners have
adequate security or even the ability to operate in the interim; even worse, on August 24,
2020, the Governor impaired not only vested contractual rights, but vested property
interests and already collected fees. Many landlords, including the Plaintiffs in this case,
have bent over backwards to work with tenants impacted by COVID-19 (explained in
detail below). But some have not: some tenants have abused the system, the situation,
and their landlords, leaving the landlords with costly bills, maintenance costs, and
utilities, while the tenants literally have thumbed their nose at the landlords. Almost two
hundred years of clearly established case law say that this is not constitutional, even in
times of emergencies, and so the Plaintiffs bring suit.
2. On March 25, 2020, Kentucky Governor Andrew Beshear suspended all evictions in the
Commonwealth of Kentucky, under a declaration of Emergency in Executive Order
2020-257, a true and accurate copy of which is attached as Exhibit A.
3. The Federal CARES Act (P.L. 116-136), at Section 4024(b) likewise provided for an
eviction moratorium for 120 days (until July 25, 2020), but this was limited to “covered
dwellings,” which are rental units in properties: (1) that participate in certain federal
assistance programs, (2) are subject to a “federally backed mortgage loan,” or (3) are
subject to a “federally backed multifamily mortgage loan.” For purposes of this
2
309
Complaint, we describe evictions that are exempted by the CARES Act moratorium
eviction are described as “CARES Act Exemptions.”
4. On May 8, 2020, Governor Beshear subsequently modified Executive Order 2020-257, in
Executive Order 2020-323, a true and accurate copy of which is attached as Exhibit B.
This order re-opened evictions for every cause permitted under law except for non-
payment of rent (including failure of a lease to be renewed, property damage, or other
causes). In relevant part, it states:
7. Evictions Suspended. Pursuant to the authority vested in me by KRS Chapter 39A,

evictions from residential premises for failure to pay rent within the Commonwealth are
suspended, and all state, county, and local law enforcement officers in the
Commonwealth are directed to cease enforcement of orders of eviction for residential
premises for the duration of the State of Emergency under Executive Order 2020-215. No
provision contained within this Order shall be construed as relieving any individual of the
obligation to pay rent, to make mortgage payments, or to comply with any other
obligation that an individual may have under tenancy or mortgage. This provision of this
Order shall be an amendment to paragraph 5. of Executive Order 2020-257.
5. On August 24, 2020, the Governor enacted yet another Executive Order related to
evictions, a copy of which is attached as Exhibit C (the “August 24, 2020 Order”),
which, in relevant part, stated:
2. Effective August 25, 2020, a landlord shall provide any tenant at least 30 days' notice
of the intent to evict from any residential premises for failure to pay rent;
3. During the time period of the 30-days' notice of the intent to evict from a residential
premises for failure to pay rent, the landlord of the residential premises and the tenant or
leaseholder of the residential premises shall meet and confer or attempt to meet and
confer,1 and the notice of the intent to evict shall request the meet and confer and provide
the tenant with the landlord's contact information.
1
This provision is ambiguous, but appears to permit a tenant that is ignoring his or her landlord
to continue to do so, since it requires both parties to meet and confer; thus, the landlord can
attempt to meet and confer with the tenant, the tenant can thumb its nose at the landlord in
response, and this paragraph of the Governor’s order would not be met.
3
310
4. No penalties, late fees, or interest shall be charged related to nonpayment of rent from
March 6, 2020 through December 31, 2020; this provision shall not apply to costs,
damages or attorney's fees awarded by court order;
6. Collectively, the Executive Orders at Exhibits A and B and C are denoted in this
Complaint as the “No-Eviction Orders.”
7. The No-Eviction Orders have absolutely no expiration date and may extend into the
future for perpetuity.
8. The Kentucky Supreme Court has issued an several orders implementing no evictions,
but has recently permitted the filing of them with the Court. Notwithstanding these
Supreme Court orders, filings in contravention of the Governor’s orders constitutes a
crime under Kentucky law under K.R.S. 39A.990.
JURISDICTION AND VENUE
9. Subject matter jurisdiction over the claims and causes of action asserted by Plaintiffs in
this action is conferred on this Court pursuant to 42 U.S.C. § 1983, 42 U.S.C. § 1988, 28
U.S.C. §1331, 28 U.S.C. § 1343, 28 U.S.C. §§ 2201 and 2202, and other applicable law.
10. Venue in this District and division is proper pursuant to 28 U.S.C. §1391 and other
applicable law, because much of the deprivations of Plaintiffs’ Constitutional Rights
occurred in counties within this District within Kentucky, and future deprivations of their
Constitutional Rights are threatened and likely to occur in this District.
Parties and Facts
11. Plaintiff Greater Cincinnati Northern Kentucky Apartment Association (“GCNKAA”)
was founded and incorporated in 1982. Since its early days, the association has enjoyed
numerous accomplishments and expansion, growing to represent the owners and
management companies of more than 100,000 apartment homes throughout the Greater
4
311
Cincinnati Northern Kentucky area. The GCNKAA is a 501(c)(6) non-profit trade
organization which provides the local multifamily housing industry with legislative
support, education, networking opportunities, community outreach to benefit our
membership and the communities we serve, and, when appropriate, will bring litigation
on behalf of its members to vindicate property owner and manager rights. Its members
represent all facets of the multifamily housing industry: apartment owners, management
executives, developers, builders, investors, property managers, leasing consultants,
maintenance personnel, grounds, janitorial and housekeeping, suppliers and related
business professionals. GCNKAA members have apartments and other rental properties
in Kenton, Campbell, Boone, and Mason Counties who have been adversely impacted by
the challenged orders, and which have adversely impacted the GCNKAA as it deprives
the GCNKAA membership of resources that are otherwise paid towards member dues.
12. The GCNKAA membership is routinely adversely affected by the No Eviction Orders, as
numerous members of the association have long term written leases, are not subject to
CARES Act Exemptions, have those same tenants refusing to pay rent, have issued the
requisite 7-day notices for non-payment, its members have leases that entitle them to
collect late fees, interest, and/or penalties related to non-payment, and in fact have
already collected such late fees, interest, and/or penalties, that the Governor has
retroactively made illegal, even though these evictions do not involve CARES Act
Exemptions, under the No Eviction Orders. The written leases in question all allow for
default and termination, and eviction, with seven days’ notice for non-payment, as well as
provisions regarding late fees, penalties, and/or interest, which are essential and material
terms of the written leases.
5
312
13. GCNKAA has established a tenant assistance fund to help tenants who are having trouble
paying rent. It also has established relationships with community organizations to help
tenants find jobs and rent assistance.2 It has strongly encouraged both landlords and
tenants to “make payment agreements with those who cannot pay, similar to when the
government shutdown occurred.”
14. Throughout the GCNKAA, its landlords have entered into such agreements for those
tenants who are willing to work with the landlords. What is left, and at issue in this case,
are evictions for those tenants who refuse to work with their landlords.3
15. Anduril Strategy, LLC (“Anduril”), is the property owner and manager of The Blake at
Park Hills, an apartment building located in 1215 Elberta Circle in Park Hills, Kenton
County, Kentucky 41011. Anduril is a member of the GCNKAA. Anduril has several
tenants on long term (greater than 6 month) written leases who have been, and continued
to, refuse to pay. The written leases in question all allow for default and termination, and
eviction, with seven days’ notice for non-payment. Anduril also has leases that entitle it
to collect late fees, interest, and/or penalties related to non-payment, and in fact has
already collected such late fees, interest, and/or penalties, that the Governor has
retroactively made illegal. Anduril is not subject to any exemptions from evictions in the
CARES Act.
16. Anduril has called all of its tenants who have indicated difficulties with payments, and
offered to: (i) place them on a payment plan; (ii) to reduce their rent; (iii) put them in
2
https://www.gcnkaa.org/apartment-association-help-and-tips.html (last visited 7/6/2020).
3
To be clear, and for the avoidance of all doubt, Plaintiffs do not seek to pursue in this matter,
and do not challenge, at this time, properties or tenants or evictions involving CARES Act
Exemptions.
6
313
touch with community resources able to help assist them with rent. These efforts have
not resulted in responses.
17. The response by Anduril’s tenants is not unique, and echoes what the landlord members
of the GCNKAA have heard from their tenants who have been refusing to pay any rent in
Kenton, Campbell, Boone, and Mason Counties.
18. Cayton Development, LLC (“Cayton”) is the property owner and manager of the
Charleston Pines Apartment Homes, which is an apartment building located at 1700
Charleston Court, in Florence, Boone County, Kentucky. Cayton has several tenants on
long term (greater than 6 month) leases who have been, and continued to, refuse to pay
rent. The written leases in question all allow for default and termination, and eviction,
with seven days’ notice for non-payment. Cayton also has leases that entitle it to collect
late fees, interest, and/or penalties related to non-payment, and in fact has already
collected such late fees, interest, and/or penalties, that the Governor has retroactively
made illegal. Cayton is not subject to any exemptions from evictions in the CARES Act.
Cayton has given these tenants a 7-day notice for non-payment of rent.
19. Cayton has called these tenants, as it has called all of its tenants who have indicated
difficulties with payments, and offered to: (i) place them on a payment plan; (ii) to reduce
their rent; and (iii) put them in touch with community resources able to help assist them
with rent. These offers have not been responded to.
20. Vail, LLC (“Vail”) is the property owner and manager of the Aspen Pines Apartment
Homes, which is an apartment building located at 1700 Aspen Pines Drive, Campbell
County, Kentucky. Vail has several tenants on long term (greater than 6 month) written
leases who have been, and continued to, refuse to pay rent. The written leases in question
7
314
all allow for default and termination, and eviction, with seven days’ notice for non-
payment. Vail also has leases that entitle it to collect late fees, interest, and/or penalties
related to non-payment, and in fact has already collected such late fees, interest, and/or
penalties, that the Governor has retroactively made illegal. Cayton is not subject to any
exemptions from evictions in the CARES Act. Cayton has given these tenants a 7-day
notice for non-payment of rent.
21. Vail has called these tenants, as it has called all of its tenants who have indicated
difficulties with payments, and offered to: (i) place them on a payment plan; (ii) to reduce
their rent; and (iii) put them in touch with community resources able to help assist them
with rent. These offers have not been responded to.
22. The No Eviction Orders, with other provisions of Kentucky law, in addition to the
Plaintiffs own leases, compels landlords and property owners to continue paying for the
tenants’ utilities, and to continue maintaining secure and habitable living units pursuant
to the terms of the leases. The No Eviction Orders fails to provide any protection for the
property owners who are unable to pay their mortgages, utilities and operating expenses
needed to continue providing habitable units to their tenants.
23. While the No Eviction Orders ostensibly protects tenants who are unable to pay rent due
to circumstances related to the COVID-19 pandemic, it contains no such requirements
that a tenant actually be impacted by COVID-19, no requirement that a tenant make a
showing that they have been impacted by COVID-19, it appears to permit a tenant to
game the system by failing to meet with his or her landlord, it extends out the period that
a tenant already gaming the system can do so into late September (unless more
requirements are added), it retroactively impairs vested contractual rights, and
8
315
criminalizes landlords for filing evictions in contravention of the order; it could, but did
not, permit a tenant to raise a defense that the tenant has been adversely impacted by
COVID-19, and it continues to arbitrarily shift the financial burden onto property owners,
many of whom were already suffering financial hardship as a result of the COVID-19
pandemic and have no equivalent remedy at law. Notably, the No Eviction Orders does
not require tenants to provide notice of COVID-19-related inability to pay to the landlord
or to provide documentation to the landlord.
24. The No Eviction Orders, with the apparently perpetual inability to satisfy the meet and
confer requirement by a landlord who endeavors to do so in good faith, but met with a
recalcitrant tenant, fails to provide any tribunal or mechanism by which property owners
and landlords may obtain redress from a tenant's refusal to pay, even if they are able to
pay, even if they are working and receiving full wages.
25. This is particularly troublesome when one considers that the CARES Act expanded the
scope of individuals who are eligible for unemployment benefits, including those who are
“furloughed” or otherwise unemployed as a direct result of COVID-19, including self-
employed individuals, independent contractors, gig workers/freelancers, and those who
have exhausted state and federal unemployment benefits. It provided for Economic
Impact Payments to American households of up to $1,200 per adult for individuals whose
income was less than $99,000 (or $198,000 for joint filers) and $500 per child under 17
years old – or up to $3,400 for a family of four. The Act adds $600 per week from the
federal government on top of whatever base amount a worker receives from the state.
26. Under the CARES Act, employers of all sizes that face closures or suffer economic
hardship due to COVID-19 are incentivized to keep employees on the payroll through a
9
316
50% credit on up to $10,000 of wages paid or incurred from March 13, 2020 through
December 31, 2020.
27. To be eligible for unemployment benefits under the CARES Act, individuals must
provide self-certification to the state that they are (1) partially or fully unemployed, or (2)
unable and unavailable to work because: a. They have been diagnosed with COVID-19 or
have symptoms of it and seeking diagnosis; b. A member of their household has been
diagnosed with COVID-19; c. They are providing care for a family or household member
diagnosed with COVID-19; d. A child or other person in the household for whom they
have primary caregiving responsibility is unable to attend school or another facility that is
closed as a direct result of the COVID-19 health emergency, and such school or facility
care is required forthe individual to work; e. They cannot reach the place of employment
because of a quarantine imposed as a direct result of the COVID-19 health emergency; f.
They were scheduled to start employment and do not have a job or cannot reach their
place of employment as a result of the COVID-19 public health emergency; g. They have
become the breadwinner or major support for a household because the head of household
has died as a direct result of COVID-19; h. They had to quit their job as a direct result of
the COVID-19 public health emergency; i. Their place of employment is closed as a
direct result of the COVID-19 public health emergency; or j. They meet other criteria
established by the Secretary of Labor.
28. The CARES Act allows for substantial unemployment benefits for virtually every
American directly or indirectly impacted by the Pandemic. Individuals who meet the
above criteria will receive the weekly benefit as determined by their state for a maximum
of 39 weeks, plus Pandemic Unemployment Compensation (“PUC”) equal to $600 per
10
317
week on top of the normal unemployment benefit. Individuals who were previously
approved for unemployment benefits will continue to receive their weekly unemployment
benefit for a maximum of 39 weeks. Since most states provide 26 weeks of
unemployment benefits, the CARES Act effectively expands coverage for an additional
13 weeks.
29. One of the more notable “loopholes” of the CARES Act is the “windfall” received by
many employees, where individuals actually receive higher wages through available
unemployment benefits in comparison to their wages pre-Pandemic. For example, if an
employer places an employee on a reduced schedule, depending on the employee’s rate
of pay, he or she may receive a “windfall” by receiving PUC. That is, the employee may
receive more through unemployment benefits than he or she would have at work. The
CARES Act does not address whether a state has the authority to adjust PUC for
employees who are considered “partially unemployed” under state law.
30. A new analysis by Peter Ganong, Pascal Noel and Joseph Vavra, economists at the
University of Chicago, uses government data from 2019 to estimate that 68% of
unemployed workers who can receive tax-free benefits are eligible for payments that are
greater than their lost earnings.4 They also found that the estimated median replacement
rate – the share of a worker’s original weekly salary that is being replaced by
unemployment benefits – is 134%, or more than 1/3 above their original wage. A
substantial minority of those workers, particularly in low-wage professions like food
4
https://fivethirtyeight.com/features/many-americans-are-getting-more-moneyfrom-
unemployment-than-they-were-from-their-jobs/ (last visited 7/6/2020)
11
318
service and janitorial work, may end up receiving more than 150% of their previous
weekly salary.
31. While the financial resources available to tenants impacted by COVID-19 abound, the
remedies available to landlords and property owners are noticeably absent. Landlords and
property owners, like the GCNKAA’s members, and the individual Plaintiffs are still
responsible for paying mortgages, property taxes, utilities, security, managers,
government-imposed fees, employee salaries, property maintenance costs, and a host of
other expenses needed to maintain and operate their rental properties.
32. While the eviction order did provide limited funding, it appears to have done so only to
tenants: thus continuing the abuse of landlords; further, the funds at issue are likely
insufficient to ameliorate the continued losses the Governor has caused to these Plaintiffs.
33. Defendant Hon. Andrew Beshear is the duly elected Governor of Kentucky. He is only
sued in his official capacity.
34. Over two hundred years of Kentucky case law provide that a forcible entry and detainer
action is a summary proceeding, designed to adjudicate the immediate right to present
possession, and is a special statutory proceeding. Anthony v. McLaughlin, 566 S.W.3d
581, 584 (2018); Baker v. Ryan, 967 S.W.2d 591, 592, 44 11 Ky. L. Summary 13 (Ky.
App. 1997); Shinkle v. Turner, 496 S.W.3d 418, 422 (Ky. 2016) (emphasis in original)
(citing Bledsoe v. Leonhart, 305 Ky. 707, 205 S.W.2d 483, 484 (1947); Young v. Young,
109 Ky. 123, 131-132 (1900); Pollard v. Otter, 34 Ky. 516, 517 (1836); Doe ex dem.
Gaines v. Buford, 31 Ky. 481 (1833).
35. Under Kentucky law, and Governor Beshear’s statements in the executive orders
notwithstanding, expiration of a valid 7-day notice for non-payment terminates the lease,
12
319
and terminates the right to further rent. Pack v. Feuchtenberger, 232 Ky. 267, 22 S.W.2d
914, 917 (Ky. 1929) (“[t]he notice to quit is technical, and is well understood; it fixes a
time at which the tenant is bound to quit, and the landlord has a right to enter, and a time
at which the rent terminates. The rights of both parties are fixed by it, and are dependent
on it.”); Shinkle v. Turner, 496 S.W.3d 418, 423-424 (2016). Governor Beshear’s
declarations, then, deprive landlords, who are not entitled to rent because they have given
the required 7 day notice, of the critical right to possession for a never ending period of
time.
Additional Allegations Concerning Standing
36. Defendant is empowered, charged with, and authorized to enforce and carry out the No
Eviction Orders. Moreover, Defendant actually does enforce and administer these laws
and have enforced these laws to prevent the Plaintiffs from filing evictions for the non-
payment of rent and the other challenged provisions, even though such filings did not
involve a CARES Act exemption.
The Constitutional Rights Violated by Defendant
COUNT I: Defendant has Violated the Petition Clause of the First Amendment (42 USC
1983)
37. Plaintiffs reincorporate the preceding Paragraphs as if fully written herein.
38. The First Amendment to the United States Supreme Court provides, in relevant part, that
“Congress shall make no law …abridging the … right of the people … to petition the
Government for a redress of grievances.” It was incorporated against the states in 1937.
DeJonge v. Oregon, 299 U.S. 353 (1937).
39. “[T]he right of access to courts for redress of wrongs is an aspect of the First Amendment
right to petition the government.” Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 896-897 (1984);
13
320
see also BE&K Constr. Co. v. NLRB, 536 U.S. 516, 525 (2002); Bill Johnson's
Restaurants, Inc. v. NLRB, 461 U.S. 731, 741 (1983); California Motor Transport Co. v.
Trucking Unlimited, 404 U.S. 508, 513 (1972); Borough of Duryea v. Guarnieri, 564
U.S. 379, 387 (2011).
40. "The Petition Clause ... was inspired by the same ideals of liberty and democracy that
gave us the freedoms to speak, publish, and assemble." McDonald v. Smith, 472 U.S.
479, 485 (1985). And it is to be given the same constitutional protections as "other First
Amendment expressions." Id.
41. “Government regulation of speech is content based if a law applies to particular speech
because of the topic discussed or the idea or message expressed.” Reed v. Town of
Gilbert, 135 S. Ct. 2218, 2227 (2015). “Some facial distinctions based on a message are
obvious, defining regulated speech by particular subject matter, and others are more
subtle, defining regulated speech by its function or purpose.” Id. “Both are distinctions
drawn based on the message a speaker conveys, and, therefore, are subject to strict
scrutiny.” Id.
42. “Because strict scrutiny applies either when a law is content based on its face, or when
the purpose and justification for the law are content based, a court must evaluate each
question before it concludes that the law is content neutral and thus subject to a lower
level of scrutiny.” Id. at 2228. “Thus, a speech regulation targeted at specific subject
matter is content based even if it does not discriminate among viewpoints within that
subject matter. Ibid. For example, a law banning the use of sound trucks for political
speech—and only political speech—would be a content-based regulation, even if it
imposed no limits on the political viewpoints that could be expressed.” Id. at 2229.
14
321
43. Because “[s]peech restrictions based on the identity of the speaker are all too often
simply a means to control content,” Citizens United v. Federal Election Comm’n, 558 U.
S. 310, 340 (2010), the Supreme Court has insisted that “laws favoring some speakers
over others demand strict scrutiny when the legislature’s speaker preference reflects a
content preference,” Turner Broad. Sys. v. FCC, 512 U.S. 622, 658 (1994). “Thus, a law
limiting the content of newspapers, but only newspapers, could not evade strict scrutiny
simply because it could be characterized as speaker based.” Reed, 135 S. Ct. 2218, 2230.
Moreover, “characterizing a distinction as speaker based is only the beginning—not the
end—of the inquiry.” Id. at 2230-2231.
44. Even worse is viewpoint discrimination. The Supreme Court articulated this principle in
Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 828-829 (1995),
observing that while “[i]t is axiomatic that the government may not regulate speech based
on its substantive content or the message it conveys,” and while “government regulation
may not favor one speaker over another,” that “[w]hen the government targets not subject
matter, but particular views taken by speakers on a subject, the violation of the First
Amendment is all the more blatant.” Id. Thus, “[v]iewpoint discrimination is thus an
egregious form of content discrimination.” Id. at 829. “The government must abstain
from regulating speech when the specific motivating ideology or the opinion or
perspective of the speaker is the rationale for the restriction.” Id. See, also, McCullen v.
Coakley, 573 U.S. 464, 484-485 (2014) (noting that permitting one class of speakers to
speak and not another raises questions of viewpoint discrimination).
45. Both content- and viewpoint-based discrimination are subject to strict scrutiny.
McCullen, 134 S. Ct. 2518, 2530, 2534 (2014). No state action that limits protected
15
322
speech will survive strict scrutiny unless the restriction is narrowly tailored to be the
least-restrictive means available to serve a compelling government interest. United States
v. Playboy Entm't Grp., 529 U.S. 803, 813 (2000). See, also, Bible Believers v. Wayne
County, 805 F.3d 228, 248 (6th Cir. 2015).
46. The No Eviction Orders limit, prevent, and delay, perhaps indefinitely, the ability of
landlords to seek redress in court; the orders do not suspend all court filings; the tenants
are free to sue the landlords for any and all causes of action, including failure to abide by
each and every obligation in the leases; they instead restrict the landlord’s rights to
petition only, constituting not merely a content based discrimination, but a viewpoint
based discrimination.
47. The No Eviction Orders are not narrowly tailored; less restrictive means to vindicate any
state interest in preventing a flood of evictions and homelessness related to COVID-19
exist: the government could instead have: (a) required tenants to make a showing that
they are unable to pay due to COVID-19; (b) required tenants to make partial payments
to avoid evictions if they are able to do so; or (c) required tenants to seek housing related
community resources or demonstrate a best efforts to pay to avoid eviction. Any or all of
those lesser options would have likely vindicated the Government’s interest.
48. The No Eviction Orders are unconstitutional. ACA Int'l v. Healey, No. CV 20-10767-
RGS, 2020 WL 2198366 (D. Mass. May 6, 2020).
COUNT II: Defendant has Violated the Impairment of Contract Clause (42 USC 1983)
49. Plaintiffs reincorporate the previous paragraphs as if fully set forth herein.
50. Article 1, Section 10, Clause 1 of the United States Constitution provides, in relevant
part, that “No State shall … pass any … Law impairing the Obligation of Contracts…”.
16
323
51. Almost 200 years ago, the United States Supreme Court had occasion to take up the
question of whether Kentucky could protect its residents who were tenants, against
landowners in Virginia, by precluding them from filing evictions where the tenants
improved the property. Green v. Biddle, 21 U.S. 1 (1823). In Green, the Supreme Court
observed that: “[a] right of property necessarily includes the right to recover the
possession, to enter, to enjoy the rents and profits, and to continue to possess undisturbed
by others.” Id. at 20. “He who has a right to land, and is in possession, has a right to be
maintained in that possession, and in the use of the land and its fruits; and he who has a
right to land, but is out of possession, has a right to recover the possession or seisin.” Id.
52. The Green Court also concluded that: “[n]othing, in short, can be more clear, upon
principles of law and reason, than that a law which denies to the owner of land a remedy
to recover the possession of it, when withheld by any person, however innocently he may
have obtained it; or to recover the profits received from it by the occupant; or which clogs
his recovery of such possession and profits, by conditions and restrictions tending to
diminish the value and amount of the thing recovered, impairs his right to, and interest in,
the property.” Id. at 75-76. “If there be no remedy to recover the possession, the law
necessarily presumes a want of right to it.” Id. “If the remedy afforded be qualified and
restrained by conditions of any kind, the right of the owner may indeed subsist, and be
acknowledged, but it is impaired, and rendered insecure, according to the nature and
extent of such restrictions.” Id. “A right to land essentially implies a right to the profits
accruing from it, since, without the latter, the former can be of no value.” Id. “Thus, a
devise of the profits of land, or even a grant of them, will pass a right to the land itself.
17
324
(Shep. Touch. 93. Co. Litt. 4 b.) ‘For what,’ says Lord Coke, in this page, ‘is the land, but
the profits thereof.’" Id.
53. “The objection to a law, on the ground of its impairing the obligation of a contract, can
never depend upon the extent of the change which the law effects in it.” Id. at 84. “Any
deviation from its terms, by postponing, or accelerating, the period of performance which
it prescribes, imposing conditions not expressed in the contract, or dispensing with the
performance of those which are, however minute, or apparently immaterial, in their effect
upon the contract of the parties, impairs its obligation.” Id. “Upon this principle it is,
that if a creditor agree with his debtor to postpone the day of payment, or in any other
way to change the terms of the contract, without the consent of the surety, the latter is
discharged, although the change was for his advantage.” Id. at 85.
54. The Court thus found that the Kentucky law at issue violated Article 1, Section 10,
Clause 1 of the United States Constitution.
55. The Supreme Court has found that laws that delay remedies, such as those at issue in this
matter, violate the Contracts Clause of Article 1, Section 10, Clause 1 of the United
States Constitution. Bronson v. Kinzie, 42 U.S. 311 (1843).5
56. Notwithstanding written contracts with their tenants that expressly provided that
Plaintiffs would have immediate possession of their property in the event of a default for
non-payment of rent, with seven days’ notice to cure, Defendant has retroactively
5
It should be made clear that the No Eviction Orders do not, for instance, merely contain a
provision that freezes rent, or waives late fees, or requires the tenants to continue to pay
“reasonable rent” as determined by a Court, if the tenants suffer a COVID-19 related financial
setback.
18
325
impaired this material and essential obligation of the contractual rights of Plaintiffs. This
is unconstitutional.
57. Moreover, and even worse, the August 24, 2020 Order retroactively impaired already
vested (as well as unvested) contractual rights in late fees, penalties, and interest,
constituting a retroactive forfeiture of such fees, even if they have already been paid.
COUNT III: Defendant has Violated Equal Protection (42 USC 1983)
59. The Fourteenth Amendment provides, in relevant part, that
60. Because the No Eviction Orders violate and impair fundamental rights, including,
without limitation, the right to Petition, the right against the impairment of contracts, and
procedural due process, they are a violation of the Equal Protection Clause of the
Fourteenth Amendment, and subject to strict scrutiny. San Antonio Indep. Sch. Dist. v.
Rodriguez, 411 U.S. 1 (1973). Because they are not narrowly tailored, they violate the
Constitution.
COUNT IV: Defendant has Violated Procedural Due Process (42 USC 1983)
62. “[T]here can be no doubt that at a minimum [procedural due process] require[s] that
deprivation of life, liberty or property by adjudication be preceded by notice and
opportunity for hearing appropriate to the nature of the case.” Mullane v. Cent. Hanover
Bank & Trust Co., 339 U.S. 306, 313 (1950). “A fair trial in a fair tribunal is a basic
requirement of due process.” In re Murchison, 349 U.S. 133, 136 (1955).
63. “Procedural due process rules are meant to protect persons not from the deprivation, but
from the mistaken or unjustified deprivation of life, liberty, or property. Thus, in deciding
19
326
what process constitutionally is due in various contexts, the Court repeatedly has
emphasized that “procedural due process rules are shaped by the risk of error inherent in
the truth-finding process....” Carey v. Piphus, 435 U.S. 247, 259 (1978) (citing Mathews
v. Eldridge, 424 U.S. 319, 344 (1976)).
64. At its core, procedural due process requires "notice and an opportunity to be heard at a
meaningful time and in a meaningful manner." Garcia v. Fed. Nat'l Mortg. Ass'n, 782
F.3d 736, 741 (6th Cir. 2015).
65. Plaintiffs have a property interest in their rental properties, including the right to
possession in the event their tenants fail to pay rent. They were deprived of these
property interests by the No Eviction Orders. And the No Eviction Orders preclude them
from vindicating these property interests, including, without limitation, by delaying
and/or indefinitely delaying such relief.
66. Defendant’s actions foreclosed Plaintiffs from filing suit in state court and/or rendered
ineffective any state court remedy she previously may have had. Swekel v. City of River
Rouge, 119 F.3d 1259 (6th Cir. 1997). Further, the No Evictions Order delayed such
remedy, constituting a violation of procedural due process.
67. The No Eviction Orders deprive Plaintiffs of procedural due process, forestalling claims
for possession of their property indefinitely.
COUNT V: Defendant has Violated Substantive Due Process (42 USC 1983)
69. The No Eviction Orders are arbitrary and capricious; they permit tenants to sue landlords,
permit landlords to sue tenants whose term of lease ends, but simultaneously prohibit
non-payment of rent evictions, without any showing that a tenant is actually unable to
20
327
pay rent, or even whether the tenant is suffering a hardship. These No Eviction Orders
are arbitrary and capricious government action that have deprived Plaintiffs of a
constitutionally protected property interest. Warren v. City of Athens, 411 F.3d 697, 707
(6th Cir. 2005).
70. In addition, the forfeiture of late fees, penalties and interests that have already vested
prior to the August 24, 2020 executive order, constitutes an unconstitutional retroactive
liability, in contravention of Due Process. William Danzer & Co. v. Gulf & S. I. R. Co.,
268 U.S. 633 (1925); Bowen v. Georgetown Univ. Hospital, 488 U.S. 204, 208 (1988);
Ea. Enters. v. Apfel, 524 U.S. 498, 529-533 (1998); FCC v. Fox Television Stations, Inc.,
567 U.S. 239, 253-259 (2012).
COUNT VI: Defendant has Violated the Prohibition on Ex Post Facto Enactments (42
USC 1983)
72. Article 1, Section 10 of the Constitution provides that “[n]o State shall …pass any … ex
post facto Law.”
73. Defendant’s August 24, 2020 Executive Order, has retroactively forbidden Kentucky’s
landlords, including the Plaintiffs herein, from charging “penalties, late fees, or interest”
“related to nonpayment of rent from March 6, 2020 through December 31, 2020.”
74. Plaintiffs have already collected these rents from tenants, prior to the Executive Order
being enacted; the Executive Order is retroactive in its application, and the Plaintiffs have
violated the August 24, 2020 Executive Order; and criminal liability is imposed for
violations of the Governor’s Executive Orders under K.R.S. 39A.990.
75. It should be noted, and the reason the Executive Order is an ex post facto enactment, is
not merely because it is retroactive, but also because, under K.R.S. 39A.990, it imposes
21
328
criminal liability for violations the order that have occurred before the order was put on.
It thus violates the Ex Post Facto Clause. Peugh v. United States, 569 U.S. 530 (2013).
GENERAL DECLARATORY AND INJUNCTIVE RELIEF ALLEGATIONS
76. Plaintiffs have and continue to have their fundamental constitutional rights violated by
this official capacity Defendant, who is personally involved with the enforcement and/or
threatened enforcement of the challenged orders. Plaintiffs will be irreparably harmed if
injunctive relief is not issued. Further, the public interest is served by the vindication of
constitutional rights, and the weighing of harms warrants issuing injunctive relief.
Generally
77. Defendant abused the authority of his respective offices and, while acting under color of
law and with knowledge of Plaintiffs’ established rights, used their offices to violate
Plaintiffs’ Constitutional rights, privileges, or immunities secured by the Constitution and
laws.
78. Thus, under 42 U.S.C 1983, Plaintiffs seek declaratory relief and injunctive relief.
Pursuant to 42 U.S.C. 1988, Plaintiffs further seek their reasonable attorney fees and
costs.
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs demand judgment against Defendant as prayed for, including:
A. That this Court issue a declaration that the challenged orders are unconstitutional.
B. That this Court enter a restraining order, preliminary injunction, and permanent
injunctive relief to prohibit enforcement of the challenged orders.
C. That Plaintiffs be awarded their costs in this action, including reasonable attorney fees
under 42 U.S.C. § 1988; and
22
329
D. Such other relief as this Court shall deem just and proper.
Respectfully Submitted,
/s/Christopher Wiest________
513-257-1895 (v)
chris@cwiestlaw.com
Trial Attorney for Plaintiffs

Covington, KY 41011
859-491-5551 tel
859-491-0187 fax
I certify that I have served a copy of the foregoing upon all Counsel of Record by tendering same
with the Court this 25 day of August, 2020 and filing same via the Court’s CM/ECF system.
23
330
ANDY BESHEAR
GOVERNOR
EXECUTIVE ORDER
Secretary of State 2020-323

Frankfort
Kentucky May 8, 2020
STATE OF EMERGENCY
The novel coronavirus (COVID-19) is a respiratory disease causing illness that can
range from very mild to severe, including illness resulting in death, and many cases of
COVID-19 have been confirmed in the Commonwealth.
The Kentucky Constitution and Kentucky Revised Statutes, including KRS Chapter
39A, empower me to exercise all powers necessary to promote and secure the safety and
protection of the civilian population, including the power to suspend state statutes and
regulations, and to command individuals to disperse from the scene of an emergency.
Under those powers, I declared by Executive Order 2020-215 on March 6, 2020, that a
State of Emergency exists in the Commonwealth. On March 18, 2020, I signed Executive
Order 2020-243, encouraging all Kentucky citizens to take all feasible measures to engage
in appropriate social distancing in accordance with the guidance of the Centers for Disease
Control and Prevention ("CDC"). On March 22, 2020, I signed Executive Order 2020-
246, ordering all in-person retail businesses that are not life-sustaining to close. On March
25, 2020, I signed Executive Order 202-257, requiring life-sustaining businesses to, to the
fullest extent possible, utilize delivery or curbside service in lieu of in-person service, and
to adhere to social distancing and hygiene guidance from the CDC.
Kentuckians are encouraged to remain Healthy at Home, which will continue to
help protect our community from the spread of COVID-19. For the same reason, as the
Kentucky economy reopens through phases Kentuckians and Kentucky businesses must be
Healthy at Work.
On April 27 and May 1, 2020, the Secretary of the Cabinet for Health and Family
Services, as my designee, modified the prior directives for elective medical procedures as
part of the Healthy at Work Phase I reopening of healthcare facilities . Continuing with
Healthy at Work Phase I of reopening, it is appropriate that certain businesses that are not
331
ANDY BESHEAR
GOVERNOR
EXECUTIVE ORDER

Frankfort
Kentucky
May 8, 2020
life-sustaining be permitted to reopen with certain requirements that all entities in the
Commonwealth must implement and follow, and certain requirements that specific sectors,
businesses, and entities must implement and follow. While ensuring Kentuckians can be
Healthy and Work, it is imperative that Kentuckians also be Healthy at Home, and part of
that effort is ensuring Kentuckians have power, water, and shelter.
Order
I, Andy Beshear, by virtue of authority vested in me pursuant to the Constitution of
Kentucky and by KRS Chapter 39A, do hereby Order and Direct as follows:
1. All businesses that are not life-sustaining that are described in this Order shall
be permitted to reopen on May 11, 2020, subject to the requirements detailed
in the Orders of the Cabinet for Health and Family Services implementing this
Executive Order and requirements for specific sectors, businesses, and entities
that will allow Kentuckians to be Healthy at Work, which may be found at
https ://govstatus.egov .com/ky-healthy-at-work.
2. For the purposes of this Order, entities that are not life-sustaining that are
permitted to reopen on May 11, 2020 are as follows, including, but not limited
to, entities that ceased operations under Executive Order 2020-257:
a. Manufacturing, distribution, and supply chain businesses.

Manufacturing companies, distributors, and supply chain businesses
producing and supplying products and services in and for industries,
including those that are not life-sustaining under paragraphs l.l. and
1.p.of Executive Order 2020-257;
b. Vehicle and vessel dealerships. Vehicle and vessel dealerships shall

be permitted to reopen for the purpose of retail sales and purchases.
c. Horse racing tracks. Horse racing tracks shall be permitted to reopen,

but horse racing venues shall not be permitted to have in-person
spectators or fans.
d. Pet care, grooming, and boarding businesses. Pet care, grooming,

and boarding businesses, shall be permitted to reopen.
e. Photography Businesses. Photography businesses shall be permitted

to reopen.
f. Office-based businesses. All office-based businesses, including, but

not limited to, professional services, finance and accounting, legal,
insurance, engineering, real estate, scientific/technical, property
332
ANDY BESHEAR
GOVERNOR
EXECUTIVE ORDER

Frankfort
management, nonprofit organizations offering office-bases services,

and other corporate offices and private office-based firms shall be
permitted to reopen to allow the physical presence of employees with a
SO-percent (50%) capacity of in-person employees.
3. Requirements for all entities. All entities shall implement and comply with
the minimum requirements for all entities pursuant to subsequent Orders of
the Cabinet for Health and Family Services implementing this Executive
Order. The Cabinet Order and the minimum requirements for all entities may
be found at https://govstatus.egov.com/ky-healthy-at-work.
4. Requirements for specific sectors, businesses, and entities. The following

specific sectors, businesses, and entities shall, in addition to the minimum
requirements under paragraph 3. of this Order, shall, pursuant to the Orders of
the Cabinet for Health and Family Services implementing this Executive
Order, implement and comply with the requirements detailed at
https:// govstatus.egov .com/ky-healthy-at-work:
a. Manufacturing, distribution, and supply chain businesses;

b. Construction businesses;
c. Vehicle or vessel dealerships;
d. Office-based businesses;
e. Horse racing tracks;
f. Pet care, grooming, and boarding businesses; and
g. Photography businesses.
5. Failure to follow the requirements provided in this Order and any other
Executive Order and any Cabinet Order, including but not limited to the
Orders of the Cabinet for Health and Family Services implementing this
Executive Order, is a violation of the Orders issued under KRS Chapter 39A,
and could subject said business to closure or additional penalties as authorized
bylaw.
6. Suspension of utility disconnections. Pursuant to the authority vested in me

by KRS Chapter 39A, disconnections due to non-payment by all entities who
provide natural gas, water, wastewater, or electric utility service within the
Commonwealth, including, but not limited to entities created under KRS
chapters 96 and 279, are prohibited for the duration of the State of Emergency
under Executive Order 2020-215. Furthermore, those entities shall waive the
assessment of late payment fees for the duration of the State of Emergency
under Executive Order 2020-215. Nothing in this order is intended to
supersede the orders of the Kentucky Public Service Commission for utilities
under its jurisdiction. The Kentucky Public Service Commission's orders
continue in full effect until rescinded or modified. No provision contained
within this Order shall be construed as relieving any individual of the
obligation to pay for a utility service provided, or to comply with any other
obligation that an individual may have with a utility. Any communication
related to this provision should be made to the Kentucky Public Service
Commission.
333
ANDY BESHEAR
GOVERNOR
EXECUTIVE ORDER

Frankfort
7. Evictions Suspended. Pursuant to the authority vested in me by KRS Chapter

39A, evictions from residential premises for failure to pay rent within the
Commonwealth are suspended, and all state, county, and local law
enforcement officers in the Commonwealth are directed to cease enforcement
of orders of eviction for residential premises for the duration of the State of
Emergency under Executive Order 2020-215. No provision contained within
this Order shall be construed as relieving any individual of the obligation to
pay rent, to make mortgage payments, or to comply with any other obligation
that an individual may have under tenancy or mortgage. This provision of this
8. Additional Orders. The following designees may provide guidance,

clarification or modification of this Order to industries or businesses, and may
otherwise issue orders necessary to the operation of government during the
State of Emergency: the Governor's Executive Cabinet, as set forth in KRS
11.065; the Commissioner of Public Health; the Director of the Division of
Emergency Management; and the Director of the Kentucky Office of
Homeland Security.
9. Prior Orders Remain In Effect. All prior Executive Orders, and Orders
issued by Cabinets pursuant to Executive Order 2020-215, remain in full force
and effect, except to the extent they conflict with this Order. Non-life
sustaining retail operations may continue to provide local delivery and
curbside service of online or telephone orders, consistent with Executive
Order 2020-246. Violations of these and other Orders issued pursuant to
Executive Order 2020-215 are punishable as provided in KRS Chapter 39A.
10. Firearms. Consistent with KRS 39A.100(l)(h) and (3), nothing in this Order
should be construed to interfere with the lawful sale of firearms and
ammunition.
11. Nothing in this Order should be interpreted to interfere with or infringe on the
powers of the legislative and judicial branches to perform their constitutional
duties or exercise their authority.
334
ANDY BESHEAR
GOVERNOR
EXECUTIVE ORDER

Frankfort
This Order shall be in effect for the duration of the State of Emergency herein
referenced, or until this Executive Order is rescinded by further order or by operation of
law.
MICHAEL G. ADAMS
Secretary of State
335
336
337
338
339
340
341
342
343
344
345
346
347
348

COVINGTON DIVISION

et. al. :
v. :
ANDREW BESHEAR :
PLAINTIFFS SUPPLEMENTAL MOTION FOR PRELIMINARY INJUNCTION WITH

SUPPLEMENTAL VERIFIED COMPLAINT IN SUPPORT
Plaintiffs, the Greater Cincinnati Northern Kentucky Apartment Association
(“GCNKAA”) and three of its members, provide this Supplemental Memorandum in Support of
the Preliminary Injunction. This Memorandum addresses the August 24, 2020 Executive Order.
Plaintiffs continue to seek preliminary injunction relief against the previous orders, because,
among other things, and notwithstanding their recission, the matter is capable of repetition yet
evading review and the voluntary cessation doctrine applies. Their prior briefing stands.
A memorandum in support is attached hereto and incorporated by reference herein.

513/257-1895 (c)
859/495-0803 (f)
chris@cwiestlaw.com

Covington, KY 41011
349
859-491-5551 tel
859-491-0187 fax
I certify that I have served a copy of the foregoing by filing same in the Court’s CM/ECF
system this 25 day of August, 2020.

350

COVINGTON DIVISION

et. al. :
v. :
ANDREW BESHEAR :
MEMORANDUM IN SUPPORT OF PLAINTIFFS SUPPLEMENTAL MOTION FOR

PRELIMINARY INJUNCTION WITH SUPPLEMENTAL VERIFIED COMPLAINT IN
SUPPORT
I. Introduction
This Memorandum addresses only two issues: (1) the August 24, 2020 Eviction Executive
Order; and (2) the need and lawfulness of enjoining the previous No-Eviction orders. Plaintiffs
incorporate by reference their prior Motion for Preliminary Injunction and briefing on this issue.
(Memo and Reply, RE#5, RE#5-1, RE#33).
II. Facts
On March 25, 2020, Kentucky Governor Andrew Beshear suspended all evictions in the
Commonwealth of Kentucky, under a declaration of Emergency in Executive Order 2020-257, a
true and accurate copy of which is attached as Exhibit A to Plaintiffs’ Complaint. (Pl.’s Supp.
Verified Compl., RE#34-4, ¶2).
The Federal CARES Act (P.L. 116-136), at Section 4024(b) likewise provided for an
eviction moratorium for 120 days (until July 25, 2020), but this was limited to “covered
dwellings,” which are rental units in properties: (1) that participate in certain federal assistance
programs, (2) are subject to a “federally backed mortgage loan,” or (3) are subject to a “federally
backed multifamily mortgage loan.” (Pl.’s Supp.Verified Compl., RE#34-4, ¶3). For purposes
1
351
of this Motion, we describe evictions that are exempted by the CARES Act moratorium eviction
are described as “CARES Act Exemptions.” Id.
On May 8, 2020, Governor Beshear subsequently modified Executive Order 2020-257, in
Executive Order 2020-323, a true and accurate copy of which is attached as Exhibit B to
Plaintiffs’ Complaint. (Pl.’s Supp.Verified Compl., RE#34-4, ¶4). This order re-opened
evictions for every cause permitted under law except for non-payment of rent (including failure
of a lease to be renewed, property damage, or other causes). In relevant part, it states:
7. Evictions Suspended. Pursuant to the authority vested in me by KRS Chapter 39A,

evictions from residential premises for failure to pay rent within the Commonwealth are
suspended, and all state, county, and local law enforcement officers in the
Commonwealth are directed to cease enforcement of orders of eviction for residential
premises for the duration of the State of Emergency under Executive Order 2020-215. No
provision contained within this Order shall be construed as relieving any individual of the
obligation to pay rent, to make mortgage payments, or to comply with any other
obligation that an individual may have under tenancy or mortgage. This provision of this
On August 24, 2020, the Governor enacted yet another Executive Order related to evictions, a
copy of which is attached as Exhibit C (the “August 24, 2020 Order”), which, in relevant part,
stated:
2. Effective August 25, 2020, a landlord shall provide any tenant at least 30 days' notice
of the intent to evict from any residential premises for failure to pay rent;
3. During the time period of the 30-days' notice of the intent to evict from a residential
premises for failure to pay rent, the landlord of the residential premises and the tenant or
leaseholder of the residential premises shall meet and confer or attempt to meet and
confer,1 and the notice of the intent to evict shall request the meet and confer and provide
the tenant with the landlord's contact information.
4. No penalties, late fees, or interest shall be charged related to nonpayment of rent from
March 6, 2020 through December 31, 2020; this provision shall not apply to costs,
damages or attorney's fees awarded by court order;
1
This provision is ambiguous, but appears to permit a tenant that is ignoring his or her landlord
to continue to do so, since it requires both parties to meet and confer; thus, the landlord can
attempt to meet and confer with the tenant, the tenant can thumb its nose at the landlord in
response, and this paragraph of the Governor’s order would not be met.
2
352
(Pl.’s Supp.Verified Compl., RE#34-4, ¶5).
Plaintiff, Greater Cincinnati Northern Kentucky Apartment Association (“GCNKAA”),
has members, including each of the named individual Plaintiffs who have leases that impose late
fees, penalties, and/or interest, and have actually collected such fees. (Pl.’s Supp.Verified
Compl., RE#34-4, ¶¶ 12, 15, 18, 20).
While the No Eviction Orders ostensibly protects tenants who are unable to pay rent due
to circumstances related to the COVID-19 pandemic, it contains no such requirements that a
tenant actually be impacted by COVID-19, no requirement that a tenant make a showing that
they have been impacted by COVID-19, it appears to permit a tenant to game the system by
failing to meet with his or her landlord, it extends out the period that a tenant already gaming the
system can do so into late September (unless more requirements are added), it retroactively
impairs vested contractual rights, and criminalizes landlords for filing evictions in contravention
of the order; it could, but did not, permit a tenant to raise a defense that the tenant has been
adversely impacted by COVID-19, and it continues to arbitrarily shift the financial burden onto
property owners, many of whom were already suffering financial hardship as a result of the
COVID-19 pandemic and have no equivalent remedy at law. (Pl.’s Supp.Verified Compl.,
RE#34-4, ¶ 23). Notably, the No Eviction Orders does not require tenants to provide notice of
COVID-19-related inability to pay to the landlord or to provide documentation to the landlord.
Id.
The No Eviction Orders, with the apparently perpetual inability to satisfy the meet and
confer requirement by a landlord who endeavors to do so in good faith, but met with a
recalcitrant tenant, fails to provide any tribunal or mechanism by which property owners and
landlords may obtain redress from a tenant's refusal to pay, even if they are able to pay, even if
3
353
they are working and receiving full wages. (Pl.’s Supp.Verified Compl., RE#34-4, ¶ 24).
III. LAW AND ARGUMENT
A. Preliminary Injunction Standard
When deciding whether to issue a temporary restraining order or preliminary injunction,
the court must consider the following four factors: (1) Whether the movant has demonstrated a
strong likelihood of success on the merits; (2) Whether the movant would suffer irreparable
harm; (3) Whether issuance would cause substantial harm to others; and (4) Whether the public
interest would be served by issuance. Suster v. Marshall, 149 F.3d 523, 528 (6th Cir. 1998);
Northeast Ohio Coalition for the Homeless v. Blackwell, 467 F.3d 999, 1009 (6th Cir.
2006). These "are factors to be balanced, not prerequisites that must be met." In re DeLorean
Motor Co., 755 F.2d 1223, 1229 (6th Cir. 1985).
That ignores clear Sixth Circuit law that establishes that the remaining factors are met
where constitutional rights are infringed upon. H.D.V. - Greektown, LLC v. City of Detroit, 568
F.3d 609 (6th Cir. 2009) (abuse of discretion not to grant preliminary injunction where
constitutional violation found); Roberts v. Neace, 958 F.3d 409 (6th Cir. 2020); Maryville
Baptist Church, Inc. v. Beshear, 957 F.3d 610 (6th Cir. 2020); Elrod v. Burns, 427 U.S. 347, 373
(1976) (irreparable harm from violation of rights); Foster v. Dilger, 2010 U.S. Dist. LEXIS
95195 (EDKY 2010) (no substantial harm to others, even where registry incurred printing costs,
where constitutional rights at stake); Martin-Marietta Corp. v. Bendix Corp., 690 F.2d 558, 568
(6th Cir. 1982); see also G & V Lounge v. Mich. Liquor Control Comm'n, 23 F.3d 1071, 1079
(6th Cir. 1999) ("[I]t is always in the public interest to prevent the violation of a party's
constitutional rights.").
4
354
B. Plaintiffs have demonstrated a likelihood of success
1. Plaintiffs have demonstrated a likelihood of success on their Petition Clause claim
As with the earlier orders, the right to petition is violated here. Winburn v. Nagy, 956
F.3d 909 (6th Cir. 2020). In that case, a state court pretrial detainee sued in habeas to challenge,
among other things, a restriction a state court put on him that prohibited him from "filing
lawsuits or disciplinary complaints against his lawyer until after his trial." Id. at 912. Let us be
clear, he was not completely prohibited from pursuing these remedies, he was, to use Governor
Beshear’s words, “merely delayed” in such pursuits. The Sixth Circuit in Winburn observed that
"[a] temporary ban on accessing the courts implicates Winburn's First Amendment right to
petition for redress of grievances and his Fourteenth Amendment right to due process." Id.
Thus, the Governor’s arguments about mere delay (for how long, we do not know -- it could be
years) must be rejected as the Sixth Circuit has correctly observed that delay in the right to
petition establishes the constitutional violation.
Again, the 30 day notice provision, with the particular language at issue, that can be
frustrated by a recalcitrant tenant, is content based, and delays if not denies, the fundamental
ability to petition to regain a property owner’s property. Sure-Tan, Inc. v. NLRB, 467 U.S. 883,
896-897 (1984); see also BE&K Constr. Co. v. NLRB, 536 U.S. 516, 525 (2002); Bill Johnson's
Restaurants, Inc. v. NLRB, 461 U.S. 731, 741 (1983); California Motor Transport Co. v.
Trucking Unlimited, 404 U.S. 508, 513 (1972); Borough of Duryea v. Guarnieri, 564 U.S. 379,
387 (2011). "The Petition Clause ... was inspired by the same ideals of liberty and democracy
that gave us the freedoms to speak, publish, and assemble." McDonald v. Smith, 472 U.S. 479,
485 (1985). And it is to be given the same constitutional protections as "other First Amendment
expressions." Id. It is a content and viewpoint related, speaker based, restriction. Reed v. Town
5
355
of Gilbert, 135 S. Ct. 2218, 2227 (2015); Citizens United v. Federal Election Comm’n, 558 U. S.
310, 340 (2010); Turner Broad. Sys. v. FCC, 512 U.S. 622, 658 (1994).
The restrictions are not narrowly tailored. Less restrictive means to vindicate any state
interest in preventing a flood of evictions and homelessness related to COVID-19 exist: the
government could instead have: (a) required tenants to make a showing that they are unable to
pay due to COVID-19; (b) required tenants to make partial payments to avoid evictions if they
are able to do so; or (c) required tenants to seek housing related community resources or
demonstrate a best efforts to pay to avoid eviction. Any or all of those lesser options would have
likely vindicated the Government’s interest.
2. Plaintiffs have demonstrated a likelihood of success on their Contracts Clause claim
Article 1, Section 10, Clause 1 of the United States Constitution provides, in relevant
part, that “No State shall … pass any … Law impairing the Obligation of Contracts…”. The
restrictions at issue frustrate and indeed impair existing contract rights. Green v. Biddle, 21 U.S.
1 (1823); Bronson v. Kinzie, 42 U.S. 311 (1843).
In Sveen v. Melin, 138 S. Ct. 1815 (2018), the Supreme Court noted that one must first
look to whether there is a substantial impairment. Id. at 1821. "In answering that question, the
Court has considered the extent to which the law undermines the contractual bargain, interferes
with a party’s reasonable expectations, and prevents the party from safeguarding or reinstating
his rights." Id. at 1822. The August 24, 2020 Order does impair such agreements. It not only
impairs the right of recovery of property by requiring notice in a particular form that is subject to
tenant abuse, extends the important period of notice by extending the tenant’s right to cure,
regardless of whether the tenant provides any security for doing so, gives the landlord no
assurance of payment, it also retroactively creates liabilities on landlords going back to March of
6
356
this year for late fees, penalties, and interest. It essentially declares acts already completed as
criminal.
"If such factors show a substantial impairment, the inquiry turns to the means and ends of
the legislation." Id. "In particular, the Court has asked whether the state law is drawn in an
“appropriate” and “reasonable” way to advance “a significant and legitimate public purpose." Id.
In Sveen, the Court found no substantial impairment, because the statute was designed to
effect the policyholder's intent, did no more than a divorce court could already do, and was a
"mere default rule" that a policyholder could undo at will. Id.
Governor Beshear’s order deprives property owners of their real property for at least 30
days, and possibly permanently, it retroactively impairs contractual obligations to late fees and
penalties and interest, violating the intent of the parties to the leases, and it does all of these
things without giving the property owners any security to secure future payment, regardless of
whether or not the tenant can pay (in contrast to the New York order issued by Governor
Cuomo).
Supreme Court cases suggest that a substantial impairment is unreasonable when “an
evident and more moderate course would serve [the state’s] purposes equally well.” United
States Trust Co. of N. Y. v. New Jersey, 431 U.S. 1, 31 (1977); see also Allied Structural Steel
Co. v. Spannaus, 438 U.S. 234, 247 (1978) (analyzing whether an impairment of private
contracts “was necessary to meet an important general social problem”).
Notwithstanding written contracts with their tenants that expressly provided that
Plaintiffs would have immediate possession of their property in the event of a default for non-
payment of rent, or be entitled to penalties, late fees, and/or interest, with seven days’ notice to
cure, Defendants have retroactively impaired this material and essential obligations of the
7
357
contractual rights of Plaintiffs. At the same time, Kentucky law terminated the right to rent at
the time the 7-day notices require. Essentially, the No Eviction Orders have left the landlords
high and dry. This is unconstitutional.
3. Plaintiffs have demonstrated a likelihood of success on their Equal Protection claim
Because the No Eviction Orders violate and impair fundamental rights, including,
without limitation, the right to Petition, the right against the impairment of contracts, and
procedural due process, they are a violation of the Equal Protection Clause of the Fourteenth
Amendment, and subject to strict scrutiny. San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S.
1 (1973). Because they are not narrowly tailored, they violate the Constitution.
4. Plaintiffs have demonstrated a likelihood of success on their Procedural Due Process

claim
The delay in the ability to bring an action violates procedural due process. Winburn, 956
F.3d 909.
5. Plaintiffs have demonstrated a likelihood of success on their Substantive Due Process

claim
The No Eviction Orders are arbitrary and capricious; they permit tenants to sue landlords,
permit landlords to sue tenants whose term of lease ends, but simultaneously prohibit non-
payment of rent evictions, without any showing that a tenant is actually unable to pay rent, or
even whether the tenant is suffering a hardship. These orders are fundamentally a value
judgment that landlords’ rights have no meaning, forcing these landlords to subsidize their
tenants, regardless of whether or not the tenants actually have a COVID-19 hardship. These No
Eviction Orders are arbitrary and capricious government action that have deprived Plaintiffs of a
constitutionally protected property interest. Warren v. City of Athens, 411 F.3d 697, 707 (6th Cir.
2005).
8
358
6. The Ex Post Facto Clause Bars Governor Beshear’s criminalization of landlords who
have already collected late fees, penalties, or interest
The phrase “‘ex post facto law’ was a term of art with an established meaning at the time
of the framing.” Collins v. Youngblood, 497 U.S. 37, 41 (1990). In Calder v. Bull, Justice Chase
reviewed the definition that the term had acquired in English common law:
“1st. Every law that makes an action done before the passing of the law, and which
was innocent when done, criminal; and punishes such action. 2d. Every law that
aggravates a crime, or makes it greater than it was, when committed. 3d. Every law that
changes the punishment, and inflicts a greater punishment, than the law annexed to the
crime, when committed. 4th. Every law that alters the legal rules of evidence, and
receives less, or different, testimony, than the law required at the time of the commission
of the offence, in order to convict the offender.” 3 Dall., at 390, 3 U.S. 386, 1 L. Ed. 648
(emphasis deleted).
Governor Beshear’s criminalization of already completed acts violates the Ex Post Facto
Clause. Peugh v. United States, 569 U.S. 530 (2013); Weaver v. Graham, 450 U.S. 24 (1981);
Stogner v. California, 539 U.S. 607 (2003); Carmell v. Texas, 529 U.S. 513 (2000)
C. This Court should continue to adjudicate the constitutionality of the May 8, 2020
order
1. The voluntary cessation doctrine applies
Governor Beshear’s sudden, “voluntary” shift in terms of the eviction ban, which he
vigorously defended in this Court, can easily re-impose, is not enough to remove his conduct
from review:
It is well settled that a defendant's voluntary cessation of a challenged practice does not
deprive a federal court of its power to determine the legality of the practice. City of Mesquite v.
Aladdin's Castle, Inc., 455 U.S. 283, 289 (1982) (emphasis added).
As the Supreme Court recently noted in Already, LLC v. Nike, Inc., 568 U.S. 85, 91 (2013):
We have recognized, however, that a defendant cannot automatically moot a case simply by
ending its unlawful conduct once sued. Otherwise, a defendant could engage in unlawful
conduct, stop when sued to have the case declared moot, then pick up where he left off,
repeating this cycle until he achieves all his unlawful ends.
9
359
Given this concern, our cases have explained that a defendant claiming that its voluntary
compliance moots a case bears the formidable burden of showing that it is absolutely clear
the allegedly wrongful behavior could not reasonably be expected to recur.
Applying this “formidable burden,” the Supreme Court held in Trinity Lutheran Church of
Columbia, Inc. v. Comer that a state governor’s “voluntary cessation of a challenged practice
does not moot a case unless ‘subsequent events ma[ke] it absolutely clear that the allegedly
wrongful behavior could not reasonably be expected to recur.’” 137 S. Ct. 2012, 2019 n.1 (2017)
(modification in original) (quoting Friends of the Earth, Inc. v. Laidlaw Environmental Services
(TOC), Inc., 528 U.S. 167, 189 (2000)).
Here, Governor Beshear “has not carried the ‘heavy burden’ of making ‘absolutely clear’ that
[he] could not revert to [his] policy,” id., of re-instituting his previous orders, because his sudden
change in policy is neither permanent nor irrevocable. See City of L.A. v. Lyons, 461 U.S. 95, 101
(1983). His filing says nothing about his future intentions. [RE#34].
Neither the plain language nor the regulatory context of the revised orders demonstrates any
authority to bind the Governor irrevocably or durably against further, similar orders. See id.;
Porter v. Bowen, 496 F.3d 1009, 1017 (9th Cir. 2007).
Moreover, the Governor has “neither asserted nor demonstrated that [he] will never resume
the complained of conduct.” Norman-Bloodsaw v. Lawrence Berkely Lab., 135 F.3d 1260, 1274
(9th Cir 1998); see also McCormack v. Herzog, 788 F.3d 1017, 1025 (9th Cir. 2015) (“[W]hile a
statutory change ‘is usually enough to render a case moot,’ an executive action that is not
governed by any clear or codified procedures cannot moot a claim.” (emphasis added)). Cf.
United States v. Sanchez-Gomez, 138 S. Ct. 1532, 1537 n.* (2018) (holding, where government
intends to reinstate old policy, “the rescission of the policy does not render this case moot”);
McCreary County, Ky. v. Am. Civil Liberties Union of Ky., 545 U.S. 844, 871 (2005) (rejecting
10
360
counties’ mere “litigating position” as evidence of actual intent of county policies). His
statements in this Court in fact demonstrate just the opposite: that he wishes at least the ability, if
not actually expressing an intention, to re-impose the ban.
A case is not moot where, as here, the Governor “did not voluntarily cease the challenged
activity because he felt [it] was improper,” but rather “has at all times continued to argue
vigorously that his actions were lawful.” Olagues v. Russoniello, 770 F.2d 791, 795 (9th Cir.
1985); Pierce v. Ducey, No. CV-16-01538-PHX-NVW, 2019 WL 4750138, at *5 (D. Ariz. Sept.
30, 2019) at *5 (“[W]hen the government ceases a challenged policy without renouncing it, the
voluntary cessation is less likely to moot the case.”). That is clearly the case here.
Thus, “[t]here is nothing in the parties’ submissions or the record to demonstrate the
Governor changed his mind about the merits of Plaintiff[s’] claim.” Pierce, 2019 WL 4750138,
at *6. “The Governor did not experience a change of heart that may counsel against a mootness
finding.” Id. Furthermore, “[g]iven the importance of the issues at bar . . . the public interest in
having the legality of the Governor’s behavior settled weighs against a mootness ruling.” Id. at
*7.
2. This case presents a classic case of capable of repetition yet evading review
Not only can the Governor not carry his burden under the voluntary cessation Doctrine, but
this case also “fit[s] comfortably within the established exception to mootness for disputes
capable of repetition, yet evading review.” Fed. Election Comm'n v. Wisconsin Right To Life,
Inc., 551 U.S. 449, 462 (2007).
“The exception applies where ‘(1) the challenged action is in its duration too short to be fully
litigated prior to cessation or expiration, and (2) there is a reasonable expectation that the same
complaining party will be subject to the same action again.’” Id. Both circumstances are present.
11
361
Given the rapidly changing COVID-19 landscape there is no question that the duration of the
Governor’s ban on eviction ban was always going to be “too short to be fully litigated prior to
cessation or expiration.”
This sort of case was destined to be too short to be fully litigated. See Kingdomware Tech.,
Inc. v. United States, 136 S. Ct. 1969, 1976 (2016) (two years is too short); Turner v. Rogers,
564 U.S. 431, 440 (2011) (12 months is too short); First Nat. Bank of Boston v. Bellotti, 435 U.S.
765, 774 (1978) (18 months is too short); Southern Pac. Terminal Co. v. ICC, 219 U.S. 498, 515
(1911) (two years is too short).
IV. Conclusion
The preliminary injunction should be granted.

513/257-1895 (c)
859/495-0803 (f)
chris@cwiestlaw.com

Covington, KY 41011
859-491-5551 tel
859-491-0187 fax
12
362
I certify that I have served a copy of the foregoing by filing a copy of the foregoing in the
Court’s CM/ECF system this 25 day of August, 2020.

13

Cayton Development, LLC, Anduril Stragegy LLC, and Vail, LLC

Uploaded by

Copyright:

Available Formats

You might also like

Cayton Development, LLC, Anduril Stragegy LLC, and Vail, LLC

Uploaded by

Document Information

Original Description:

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Cayton Development, LLC, Anduril Stragegy LLC, and Vail, LLC

Uploaded by

Copyright:

Available Formats

Case: 2:20-cv-00096-DLB-CJS Doc #: 35 Filed: 08/25/20 Page: 1 of 2 - Page ID#: 300

UNITED STATES DISTRICT COURT

GREATER CINCINNATI NORTHERN : Case No. 2:20-CV-00096

HON. ANDREW BESHEAR :

PLAINTIFFS MOTION FOR LEAVE TO FILE SUPPLEMENTAL COMPLAINT

Plaintiffs, the Greater Cincinnati Northern Kentucky Apartment Association

Executive Order by the Defendant. A Memorandum in Support is attached; so is the tendered

Supplemental/Amended Complaint, and a Proposed Order is attached. Plaintiffs also tender an

if the Supplemental Complaint is permitted by the Court.

/s/ Christopher Wiest___________

/s/ Alexander F. Edmondson

/s/ Christopher Wiest___________

UNITED STATES DISTRICT COURT

GREATER CINCINNATI NORTHERN : Case No. 2:20-CV-00096

HON. ANDREW BESHEAR :

MEMORANDUM IN SUPPORT OF PLAINTIFFS MOTION FOR LEAVE TO FILE

Supplemental/Amended Complaint allege. Id.

II. Law and Argument

FRCP 15(d) provides, in relevant part:

Leave to amend pleadings is to be freely permitted "when justice so requires." Fed. R.

371 U.S. 178, 182 (1962).

"A supplemental pleading promotes as complete an adjudication of the dispute between

be separately tried and prosecuted." Id.

amendment is not futile.

Leave, therefore, should be granted.

/s/ Christopher Wiest___________

/s/ Alexander F. Edmondson

/s/ Christopher Wiest___________

UNITED STATES DISTRICT COURT

GREATER CINCINNATI NORTHERN : Case No. 2:20-CV-00096

HON. ANDREW BESHEAR :

ORDER ON PLAINTIFFS MOTION FOR LEAVE TO FILE SUPPLEMENTAL

IN THE UNITED STATES DISTRICT COURT

GREATER CINCINNATI NORTHERN : Case No: 2:20-CV-00096-DLB-CJS

ANDURIL STRAGEGY LLC :

PLAINTIFFS’ VERIFIED SUPPLEMENTAL/AMENDED COMPLAINT FOR

Introduction and Background

1. This action challenges Kentucky Governor Andrew Beshear’s closing of Kentucky

times of emergencies, and so the Plaintiffs bring suit.

Commonwealth of Kentucky, under a declaration of Emergency in Executive Order

2020-257, a true and accurate copy of which is attached as Exhibit A.

subject to a “federally backed multifamily mortgage loan.” For purposes of this

eviction are described as “CARES Act Exemptions.”

4. On May 8, 2020, Governor Beshear subsequently modified Executive Order 2020-257, in

payment of rent (including failure of a lease to be renewed, property damage, or other

causes). In relevant part, it states:

7. Evictions Suspended. Pursuant to the authority vested in me by KRS Chapter 39A,

which, in relevant part, stated:

Complaint as the “No-Eviction Orders.”

future for perpetuity.

Supreme Court orders, filings in contravention of the Governor’s orders constitutes a

crime under Kentucky law under K.R.S. 39A.990.

JURISDICTION AND VENUE

applicable law, because much of the deprivations of Plaintiffs’ Constitutional Rights

Constitutional Rights are threatened and likely to occur in this District.

Parties and Facts

11. Plaintiff Greater Cincinnati Northern Kentucky Apartment Association (“GCNKAA”)