2020 12 08 - 68 - City Opposition To Motion To Extend

CASE 0:19-cv-01122-WMW-LIB Doc.
68 Filed 12/08/20 Page 1 of 49
UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA
The Satanic Temple, Case No. 19-CV-01122 (WMW/LIB)
Plaintiff, DEFENDANT’S MEMORANDUM

OF LAW IN OPPOSITION TO
v. PLAINTIFF’S MOTION FOR LEAVE TO
AMEND COMPLAINT AND AMEND
City of Belle Plaine, Minnesota, SCHEDULING ORDER; OR,
ALTERNATIVELY, FOR A CONTESTED
Defendant. “NON-SUIT”
INTRODUCTION
The three-part motion brought by The Satanic Temple (“Plaintiff”) fails to
adequately explain why Plaintiff waited until the last week of discovery to file its
motion. Plaintiff’s list of excuses is unconvincing.
In support of its motion to amend the scheduling order, Plaintiff provides
three excuses for why it has not been able to meet the deadlines in the scheduling
order: (1) the timing of this Court’s July 31 order dismissing all but one of Plaintiff’s
ten claims resulted in a lost year of discovery; (2) Plaintiff replaced its counsel in
February 2020; and (3) the parties’ recent discovery disputes have prevented
Plaintiff from receiving discovery. None of these excuses amounts to the good cause
necessary to amend the scheduling order—certainly not by extending the deadlines
by a year, as Plaintiff requests.

CASE 0:19-cv-01122-WMW-LIB Doc. 68 Filed 12/08/20 Page 2 of 49
In support of its motion for leave to amend the complaint, Plaintiff provides
even more excuses. The excuses add up to dilatory conduct. Plaintiff’s complaint
and proposed amended complaint are based on the same events in 2017. Plaintiff
seeks leave to amend its complaint more than a year after the deadline to amend set
in this Court’s scheduling order. Plaintiff admits that the core factual allegations are
still the same. These words help show why amendment would be futile in this case.
And Plaintiff cannot overcome the futility hurdle. Rewarding Plaintiff’s delay—
adding previously dismissed claims back into the case and two entirely new
constitutional claims after the close of discovery—would unduly prejudice the City.
In support of its motion for voluntary dismissal, Plaintiff’s excuse is that it
“needs more time to gather admissible evidence about the City’s motivations.” The
Court should deny Plaintiff’s motion for voluntary dismissal because it fails to meet
any of the three factors for dismissal under Rule 41(a)(2). First, Plaintiff lacks a
proper explanation for seeking dismissal. Second, Plaintiff concedes that it would
be a waste of judicial time and effort if the Court grants Plaintiff’s motion for
voluntary dismissal. Third, voluntary dismissal at this late stage would prejudice the
City.
The Court should deny the three-part motion in its entirety.
2
BACKGROUND1
On April 25, 2019, Plaintiff filed this action. On August 6, 2019, the parties
submitted their Rule 26(f) report and proposed scheduling order to the Court based
on a shared understanding that the parties would both move for judgment on the
pleadings. The Rule 26(f) report, filed the week before the initial pretrial conference,
states that “The parties have . . . both stated their intention to move for judgment
on the pleadings. The parties seek to coordinate a schedule for presenting cross-
motions for judgment on the pleadings to the Court.”2 The report further stated that
“[t]he parties agree that this is not a heavily document intensive case.”
On August 12, 2019, the parties attended the initial pretrial conference in
chambers, where they discussed the contents of the Rule 26(f) report—including
the parties’ intention to file cross-motions for judgment on the pleadings. On
August 15, 2019, this Court issued a scheduling order setting the discovery deadline
at December 4, 2020.
As planned, the parties brought cross motions for judgment on the pleadings,
which this Court heard on March 4, 2020. Two weeks before the hearing, on
February 19, Plaintiff replaced its counsel. Plaintiff’s current counsel signed
1
The Court’s July 31 Order Granting in Part and Denying in Part Defendants’
Motion for Judgment on the Pleadings and Denying Plaintiff’s Motion for Judgment
on the Pleadings [ECF 46] recites the facts of this case, which have not changed since
the Court issued its order.
2
Rule 26(f) Report [ECF 14] at 5–6.
3
Plaintiff’s reply memorandum of law in support of Plaintiff’s motion for judgment
on the pleadings, attended oral argument, and argued both motions.
On July 31, this Court denied Plaintiff’s motion for judgment on the pleadings
and granted in part the City’s motion for judgment on the pleadings, dismissing nine
of the ten counts in the complaint. Satanic Temple v. City of Belle Plaine, ---
F. Supp. 3d ---, 2020 WL 4382756, at *9 (D. Minn. July 31, 2020). The Court focused
its analysis on two resolutions passed by the Belle Plaine City Council that are
relevant to this action: Resolution 17-020 (February 21, 2017) and Resolution 17-090
(July 17, 2017). The first, Resolution 17-020 (“Enacting Resolution”), established a
limited public forum in the City’s park. The second, Resolution 17-090 (“Rescission
Resolution”), eliminated the limited public forum in the City’s park.
In the July 31 order, this Court dismissed Plaintiff’s Free-Exercise Claims
(Counts I and IX), Free-Speech Claims (Counts II and X), Equal-Protection Claim
(Count III), Contract-related Claims (Counts IV, VI, and VIII), and RLUIPA Claim
(Count V). Id. The only claim that the order did not dismiss was Plaintiff’s
Promissory-Estoppel Claim (Count VII). Id.
On August 25, less than a month after the July 31 order, the City served its
first set of discovery requests on Plaintiff.3 On September 24, Plaintiff served its
3
Declaration of Monte A. Mills in Opposition to Plaintiff’s Motions to Compel,
to Amend the Scheduling Order and for Leave to Amend the Complaint (“Mills
Decl.”) Ex. 7.
4
responses on the City. On October 23, the City sent a discovery deficiency letter to
Plaintiff, asking for a response by November 4.4
On November 4, in response to the City’s October 23 discovery deficiency
letter and a November 2 letter from the City regarding scheduling depositions,5
Plaintiff’s counsel wrote City’s counsel, stating for the first time at the end of the
letter that “[i]n light of the impending discovery deadline, I think a continuance is
in order.”6 Plaintiff’s counsel went on to write, “I also intend to move for an amended
complaint to correct the pleading deficiencies of my predecessors.”7 Plaintiff ended
the November 4 letter by asking for the City’s counsel’s “position on an amended
scheduling order” and stating that, depending on depositions and the City’s
responses to the first set of discovery requests that Plaintiff sent on October 15,8
Plaintiff’s counsel thought “six months is a reasonable time to complete discovery”
and “two months should be enough time for amended pleadings.”9
On November 9, 2020, the City’s counsel wrote Plaintiff’s counsel, stating
that “we will not stipulate to an extension of the scheduling order. The deadline for
4
Mills Decl. Ex. 13
5
Mills Decl. Ex. 14
6
Mills Decl. Ex. 5, p.7.
7
8
Mills Decl. Ex. 15.
9
5
motion to amend the pleadings expired last year on October 15—we will not
stipulate to a revival of that deadline.”10 The City’s counsel added that “[t]o be clear,
we will oppose any attempt to amend the complaint at this late date.”11
On November 10, in response to a November 9 letter from Plaintiff’s counsel,
the City’s counsel again wrote Plaintiff’s counsel, stating:
To be clear, the City will not stipulate to an extension of the scheduling

order. . . . [Y]ou have been on notice since Mr. Juran filed his notice of
appearance on February 19 that discovery closes on December 4. Over
four months to complete discovery for one claim is adequate and
proportional in light of the claim’s nature. You have provided no
reasons why the time allotted is insufficient. Perhaps recognizing this
shortcoming, you sent us an email last night at 6:24 PM referencing an
upcoming November 17 appeal deadline in another case, but that fails
to explain August, September, October, and the rest of November and
the first week of December.12
The City’s counsel also addressed the City’s unwillingness to stipulate to
extending the deadline for amending the pleadings: “We will not stipulate to a
revival of that deadline. The facts in this case have not changed since the complaint
was filed. Indeed, as you admit in your ‘good faith’ letter, ‘we all know the gist of the
facts at issue.’”13 The City’s counsel further stated that:
We will oppose any attempt to amend the complaint to add claims at

this late date. The Court already dismissed the same claims you now
say you wish to add. More importantly, the Court dismissed those
10
Mills Decl. Ex. 3 (City’s Letter dated November 9, 2020).
11
Mills Decl. Ex. 3.
12
Mills Decl. Ex. 16 (City’s Letter dated November 10, 2020, p.2-3).
13
6
claims based on the same theories of liability you seek to advance. The
amendments you have described in your ‘good faith’ letter would be
futile.14
That same day, on November 10, the parties met and conferred regarding
their discovery disputes. During that call, the City reiterated its positions on
amending the pleadings and amending the scheduling order.
On November 11, Plaintiff’s counsel wrote the City’s counsel, announcing
Plaintiff’s counsel’s “intended next steps.”15 Plaintiff’s counsel wrote that “[w]e
reached no resolution on extending the deadline to amend pleadings” and “I intend
to move for leave to amend the complaint as specified in my previous letter (i.e.
reasserting Free Exercise, Free Speech, and Equal Protection and asserting
Establishment Clause).”16 At the end of the paragraph, Plaintiff wrote, “I expect to
have that filed tomorrow.”17
In its November 11 letter, Plaintiff’s counsel also addressed a potential motion
to extend discovery deadlines, writing that he believed there was good cause to
extend the expert deadline and the fact discovery deadline. 18 At the end of that
section in the letter, Plaintiff’s counsel wrote, “I will move for an extension.”
14
Mills Decl. Ex. 16, p.3 (internal citations omitted).
15
16
17
18
Mills Decl. Ex. 6, p.3
7
On December 1, Plaintiff filed this three-part motion for leave to amend
complaint and to amend scheduling order or, alternatively, for “a contested non-
suit.”19
LEGAL ARGUMENT
The Court should deny all parts of Plaintiff’s motion.
I. Plaintiff has not demonstrated good cause for amending the

scheduling order.
“[A] party who moves to modify a scheduling order must: (1) establish good
cause for the proposed modification, and (2) explain the proposed modification’s
effect on any deadlines.” Grage v. N. States Power Co., No. CV 12-2590 (JRT/JSM),
2014 WL 12610147, at *4 (D. Minn. Jan. 3, 2014). “The primary measure of good cause
is the movant’s diligence in attempting to meet the order’s requirements.” Id.
(quoting Sherman v. Winco Fireworks, Inc., 532 F.3d 709, 716–17 (8th Cir. 2008)).
The good-cause standard is an exacting one, which “focuses on the diligence of the
party seeking to modify a Scheduling Order, as opposed to the litany of unpersuasive
excuses, inclusive of inadvertence and neglect, which commonly undergird an
untimely Motion to Amend.” See Scheidecker v. Arvig Enters., 193 F.R.D. 630, 632 n.1
(D. Minn. 2000). Applying such an exacting standard makes sense, because
“[s]cheduling orders pursuant to Rule 16(b)(1) ‘assure that at some point both the
19
ECF 56; see also ECF 64 (corrected motion filed on Dec. 4, 2020).
8
parties and the pleadings will be fixed[.]’” Grage, 2014 WL 12610147, at *4 (quoting
Fed. R. Civ. P. 16(b) advisory committee notes).
Plaintiff has failed to establish good cause for amending the Court’s
scheduling order. Plaintiff asks the Court to amend the scheduling order for three
reasons: (1) to accommodate the timing of the order of dismissal; (2) the
replacement of Plaintiff’s counsel; and (3) the City’s refusal to permit adequate
discovery.20 Each falls short of Plaintiff’s burden under Rule 16.
First, the parties prepared and submitted their Rule 26(f) report and proposed
scheduling order to the Court with an understanding that each party would move
for judgment on the pleadings. Indeed, the parties discussed that plan with the
Court as part of the initial pretrial conference on August 12, 2019. The Rule 26(f)
report, filed the week before the initial pretrial conference, states that “The parties
have . . . both stated their intention to move for judgment on the pleadings. The
parties seek to coordinate a schedule for presenting cross-motions for judgment on
the pleadings to the Court.”21 The report further stated that “[t]he parties agree that
this is not a heavily document intensive case” before proposing deadlines that were
earlier than the deadlines the Court set in its Pretrial Scheduling Order.22 In sum,
20
Pl.’s Mem. [ECF 65] at 2.
21
Rule 26(f) Report [ECF 14] at 5–6.
22
Compare Rule 26(f) Report [ECF 14] at 6–7 with Pretrial Scheduling Order
[ECF 18] at 1–4.
9
the Pretrial Scheduling Order indicates that the parties did not expect the need for
much discovery and it gave the parties more time than they asked for. Plaintiff’s
argument that the motions for judgment on the pleadings somehow prevented
Plaintiff from meeting the deadlines in the scheduling order is unpersuasive.
Second, Plaintiff’s counsel has known about the deadlines in the scheduling
order since at least February 2020. Plaintiff’s counsel filed a notice of appearance
on February 19—two weeks before the March 4 hearing on the parties’ motions for
judgment on the pleadings. Plaintiff’s counsel argued the motions.23 As early as
August 4, Plaintiff’s counsel “said he plans to determine which of the dismissed
claims can be raised again and refile a complaint.”24 Plaintiff’s memorandum of law
is silent as to why Plaintiff’s replacement of its counsel in February 2020 somehow
requires a year-long extension of the deadlines. In any event, because Plaintiff’s
counsel has been counsel of record for nearly ten months, this reason falls far short
of good cause.
Third, the discovery disputes from the past few weeks do not come close to
justifying the year-long extension that Plaintiff seeks in its motion. The City’s
memorandum of law in support of its motion for a protective order fully covers the
23
See Court Minutes [ECF 45] (listing appearances of Jason Scott Juran and
Matthew A. Kezhaya).
24
“Satanic Temple lawsuit against Belle Plaine will move forward, despite court
dismissal of most of its claims,” Star Tribune, Aug. 4, 2020 (Mills Decl. Ex. 17).
10
reasons why the depositions Plaintiff began seeking in early November fall well
outside the scope of permissible discovery on Plaintiff’s promissory-estoppel claim.
By contrast, in its memorandum of law in support of its motion to amend the
scheduling order, Plaintiff severely undermines its argument that it has been
diligent in attempting to comply with the scheduling order: Plaintiff alludes to
possible additional third-party discovery that Plaintiff has thus far entirely failed to
seek.25 Plaintiff’s argument ignores this Court’s previous order that “[d]isputes with
regard to . . . discovery . . . shall be called immediately to the Court’s attention by
the making of an appropriate Motion, and shall not be relied upon by any party as a
justification for not adhering to this Pretrial Scheduling Order.”26 Plaintiff cannot
rely on a discovery dispute that it created a few weeks ago to justify not adhering to
the scheduling order that has been in place since August 12, 2019.
The recent discovery disputes do not explain why Plaintiff waited until
December 1 to seek leave to amend the complaint. Plaintiff knew as soon as July 31
that the Court dismissed without prejudice all of Plaintiff’s constitutional claims.
Nor do the parties’ discovery disputes explain why Plaintiff now seeks year-long
25
See Pl.’s Mem. [ECF 65] at 7 (“Depending on the outcome of the Rule 30(b)(6)
deposition and a review of compelled records, Counsel may need to take depositions
of Andy Parrish and the Veteran’s Group to authenticate off-the-record discussions
announced by Mr. Parrish on the Group’s publicly available Facebook page. And,
Counsel may also need to depose Father Brian Lynch to determine what he knows
about off-the-record discussions.” (internal citation omitted)).
26
Pretrial Scheduling Order [ECF 18] at 2.
11
extensions to the deadlines for expert disclosures, non-dispositive motions,
dispositive motions, and trial readiness. Knowing that discovery closed on
December 4, Plaintiff waited to send its first discovery requests to the City in
October and its first deposition notices in November. Plaintiff’s efforts in
discovery—all begun less than two months before the discovery deadline—do not
amount to diligent attempts to meet the deadlines in the order.
Finally, the City would be prejudiced if the Court grants Plaintiff’s motion to
amend the scheduling order. Of course, the Court need not consider prejudice if the
Court finds that Plaintiff has not been diligent in meeting the deadlines in the
scheduling order. See Morrison Enters., LLC v. Dravo Corp., 638 F.3d 594, 610 (8th
Cir. 2011) (affirming district court’s denial of motion for leave to amend on ground
that a tactical choice not to pursue a claim earlier did not show diligence).
Expanding and extending this action after the close of discovery would be contrary
to the stated objectives of the Federal Rules of Civil Procedure—to secure “the just,
speedy, and inexpensive determination of every action.” Fed. R. Civ. P. 1. The City
should not be subjected to the burdens of Plaintiff essentially starting over on a case
involving facts that have remain unchanged since 2017. Hitting the reset button at
the close of discovery and pushing discovery dates out by another year would greatly
increase the City’s expenses to defend against a single claim. The City has made
12
consequential strategy decisions about how to expend its resources based on the
settled expectations laid out in the scheduling order.
In sum, the premise behind Plaintiff’s motion to amend the scheduling order
is unsupported by even the most strained reading of the procedural history in this
case. Plaintiff has been anything but diligent in attempting to meet the deadlines in
the scheduling order. Plaintiff did not begin to pursue discovery until less than two
months before the close of discovery and Plaintiff failed to move for leave to amend
until three days before the close of discovery. Plaintiff has failed to demonstrate
good cause for modifying the scheduling order. This Court should deny Plaintiff’s
motion.
II. The Court should deny Plaintiff’s motion for leave to amend the
complaint.
This Court should also deny Plaintiff’s motion for leave to amend the
complaint. There are four good reasons for denying Plaintiff’s motion: (1) granting
the motion will cause undue delay; (2) Plaintiff has exhibited a dilatory motive;
(3) granting the motion will unduly prejudice the City; and (4) amendment would
be futile. See, e.g., Thompson-El v. Jones, 876 F.2d 66, 67 (8th Cir. 1989) (listing good
reasons for denying a motion for leave to amend).
A. Granting Plaintiff’s motion will cause undue delay.
The first good reason to deny Plaintiff’s motion for leave to amend, filed three
days before the close of discovery, is that the motion will cause undue delay. Plaintiff
13
is transparent about how much delay it hopes to achieve. Plaintiff simultaneously
seeks leave to amend and a year-long extension of the deadlines in the scheduling
order.
Plaintiff has not provided the Court with any explanation for why Plaintiff did
not seek leave to amend shortly after this Court’s July 31 order dismissing Plaintiff’s
constitutional claims. As early as August 4, 2020, Plaintiff’s counsel “said he plans
to determine which of the dismissed claims can be raised again and refile a
complaint.”27 “When a considerable amount of time has passed since the filing of a
complaint and the motion to amend is made on the eve of trial and will cause
prejudice and further delay, courts require the movant to provide some valid reason
for the belatedness of the motion.” Thompson-El, 876 F.2d at 67; see also, e.g.,
Wanzek Constr., Inc. v. Bootheel Ethanol, LLC, No. 06-CV-1649 (DWF/AJB), 2008
WL 11348486, at *2 (D. Minn. Apr. 16, 2008) (“[T]he Eighth Circuit has also
routinely upheld the denial of a motion to amend where discovery has closed or
where the motion is made on the eve of trial.” (citing cases)).
Instead of providing a valid reason for the belatedness of its motion, Plaintiff
argues that “[f]our months wasn’t enough time to get this case trial-ready.”28 But
Plaintiff neglects to mention to the Court that Plaintiff did not pursue any discovery
27
28
Pl. Mem. [ECF 65] at 4.
14
until serving its first set of discovery requests on the City on October 15, 2020.29
Plaintiff further neglects to explain why it was unable to pursue discovery before
that late date. Even though Plaintiff admits in the proposed amended complaint that
“[t]he core factual allegations are still the same,”30 Plaintiff leaves it up to the Court’s
imagination to explain why Plaintiff needed over four months to file a motion for
leave to amend.
The delays that would result if the Court grants Plaintiff’s motion are like
other cases where the Court has denied leave to amend. In Thompson-El, the
plaintiff moved to amend the complaint after the case had been pending for
approximately eighteen months, two weeks before the trial date, six weeks after the
date originally set for the completion of discovery, and two weeks after the deadline
for summary judgment motions. The amendment would have added “four new
defendants, a distinct claim, and demands for actual and punitive damages [that]
would have changed th[e] case quite substantially.” Thompson-El, 876 F.2d at 69.
Although the plaintiff argued that it was impossible for counsel to discover the need
for a second amended complaint until counsel received certain discovery materials,
the Eighth Circuit found that explanation to be “unimpressive” because the plaintiff
did not request the discovery materials until late in the discovery period. See id.
29
Mills Decl. Ex. 15.
30
Proposed Am. Compl. [ECF 64-1] ¶ 1.
15
Considering defendants’ argument that the plaintiff had “filed the motion in order
to delay trial until a time more convenient for counsel,” the Eighth Circuit found
that “the trial court could well have concluded that the motion to amend was
prompted by such motives.” Id. at 68–69. The Eighth Circuit also found that “[t]he
additional burdens of discovery and delay the amendment would have placed on
defendants” were not insignificant prejudice. Id. at 69. The court therefore found
that “the trial court did not abuse its discretion in denying [the plaintiff] leave to file
his second amended complaint.” Id.
Similarly, in Williams v. Little Rock Municipal Water Works, the plaintiff filed
a motion to amend her complaint fourteen months after filing the original
complaint, six days after the discovery cutoff, and less than three weeks before the
trial date. 21 F.3d 218, 224 (8th Cir. 1994). The Eighth Circuit affirmed the district
court’s decision to deny the motion because the plaintiff “offer[ed] no valid
explanation for why she failed to seek leave at an earlier time to file an amended
complaint adding new defendants and adding allegations of discriminatory policies
and customs.” Id.
Here, Plaintiff seeks leave to amend the complaint more than a year after the
deadline to amend set by the scheduling order. Although Plaintiff fully admits that
the core factual allegations based on 2017 events are still the same, Plaintiff also
seeks to add two new claims and three claims this Court has already dismissed—all
16
more than 19 months after filing its complaint. Granting Plaintiff’s motion would
cause delay, which is what Plaintiff openly seeks. This Court should not reward
Plaintiff for waiting so long to decide to seek leave to amend when Plaintiff could
have filed the motion in August.
B. Plaintiff’s motion papers and letters with the City’s counsel

reveal Plaintiff’s dilatory motive.
The second good reason to deny Plaintiff’s motion is that, throughout its
memorandum of law and in its letters with the City’s counsel, Plaintiff has exhibited
a dilatory motive.
The examples of Plaintiff’s dilatory intentions are numerous. For instance,
Plaintiff argues that, because Plaintiff has no evidence to support its case, the Court
should extend the deadlines in the scheduling order. Plaintiff writes that “TST can
state a claim, but proving it with admissible evidence is another matter entirely.” 31
The implication behind Plaintiff’s tacit admission is clear: Plaintiff seeks more time
to engage in discovery because, as things stand now, Plaintiff’s case would not
survive summary judgment.
Plaintiff also argues that, “[i]mmediately before November, Counsel was
busily attending to answering the City’s discovery requests and crafting TST’s own
discovery requests. Plus, Counsel has other clients and matters to attend to.”32 Here,
31
32
Pl.’s Mem. [ECF 65] at 10-11.
17
Plaintiff appears to use run-of-the-mill professional responsibilities as excuses for
why Plaintiff did not file its motion sooner. But Plaintiff’s own timeline of events
establishes that Plaintiff waited until November 4 to make “it clear to the City that
TST intended to move for an amended complaint.”33 Plaintiff makes no effort to
explain to the Court why—if “[t]he proposed amended complaint . . . could have
been filed as early as November 12”34 (eight days after Plaintiff first expressed an
intention to seek leave to amend)—Plaintiff could not have filed the same motion
eight days after this Court’s July 31 order.
In addition, Plaintiff admits to the Court that Plaintiff has not identified an
expert who could help prove reputational damages.35 Plaintiff filed its case on
April 25, 2019 and included a claim for damages. Plaintiff has now had over 19
months to search for an expert and it has apparently not found one. Again, the
implication behind Plaintiff’s admission is clear: Plaintiff seeks more time to search
for evidence to support its case.
To be clear, the problem Plaintiff faces at the close of discovery is not a lack
of documents received from the City. Plaintiff’s problem is that discovery has not
produced documents that support Plaintiff’s case. In fact, the redline of Plaintiff’s
33
34
35
See Pl.’s Mem. [ECF 65]. at 7.
18
proposed amended complaint shows that Plaintiff wants for nothing when it comes
to the City’s emails and documents. So much so that, even though “the core factual
allegations are still the same,” Plaintiff now seeks to transform the 134-paragraph,
27-page complaint (with 5 exhibits filling 11 pages) into an amended complaint that
is 280 paragraphs and 67 pages (with 20 exhibits filling 133 pages as well as video
recordings of council meetings). Through a government-data request made in 2017,
Plaintiff has in its possession the many City emails that it now seeks to add as
exhibits to an amended complaint.36 The most likely explanation for seeking to add
hundreds of pages of documents as exhibits to a proposed amended complaint, in a
case that the parties agreed was “not a document-intensive case,”37 is that Plaintiff
hopes to throw as much as possible against the wall to see what sticks.
The record before the Court leads to one obvious conclusion: Plaintiff
neglected to pursue discovery in the months following this Court’s July 31 order and
now Plaintiff wants more time. As early as August 4, 2020, Plaintiff’s counsel “said
he plans to determine which of the dismissed claims can be raised again and refile a
complaint.”38 Yet Plaintiff’s early-November letters to the City’s counsel and
Plaintiff’s memorandum of law strongly suggest that Plaintiff did not begin work on
36
See Mills Decl. Ex. 9 (Greaves Deposition Ex. 18).
37
Rule 26(f) Report [ECF 14].
38
19
the proposed amended complaint until around that time. For example, in a
November 11, 2020 letter—written after the parties met and conferred regarding the
parties’ dispute over the scope of depositions—counsel for Plaintiff wrote that “I
intend to move for leave to amend the complaint as specified in my previous letter
(i.e., reasserting Free Exercise, Free Speech, and Equal Protection and asserting
Establishment Clause).”39 Plaintiff also asks for additional time of “two weeks from
an order granting an amended scheduling order” to “give Counsel the needed time
to clean up any outstanding typographical or stylistic errors in the proposed
complaint.”40 The Local Rules do not contemplate that proposed amended pleadings
attached to motions for leave to amend might be rough drafts in need of cleaning
up. See Local Rule 15.1(b) (“If the court grants the motion, the moving party must
file and serve the amended pleading.”). And yet Plaintiff appears to suggest that its
proposed amended complaint is not even ready to file as is.
In sum, “[i]f a motion to amend is filed for dilatory purposes, a court has good
reason to deny the motion.” Thompson-El, 876 F.2d at 68. Through its motion for
leave to amend, Plaintiff seeks more time to build its case. No matter how long
Plaintiff takes, however, the core factual allegations are still the same—as Plaintiff
39
Mills Decl. Ex. 6 at 2. Plaintiff did not list due process as a potential claim in
an amended complaint, which further suggests that the proposed amended
complaint has been a work in progress since as late as November 11.
40
Pl.’s Mem. [ECF 65] at 8–9.
20
admits. This Court should deny Plaintiff’s motion for leave to amend because of
Plaintiff’s dilatory motive in filing the motion.
C. Granting Plaintiff’s motion will result in undue prejudice to the

City.
The third good reason for denying Plaintiff’s motion is that adding claims at
this late date will prejudice the City. Plaintiff seeks to add two entirely new claims
(Establishment Clause and Due Process) that would unduly prejudice the City
absent additional rounds of discovery and motion practice. Plaintiff also seeks to
turn a simple case involving a single claim for promissory estoppel back into a
constitutional case involving five other claims—three of which this Court has
dismissed.
Plaintiff has not provided the Court with any reasonable explanation for why
it did not plead its two new proposed claims in its original complaint. More
importantly, Plaintiff has not offered any explanation for why it failed to seek leave
to amend in August. See Williams, 21 F.3d 218, 224 (8th Cir. 1994) (affirming district
court’s decision to deny motion for leave to amend because the plaintiff “offer[ed]
no valid explanation for why she failed to seek leave at an earlier time to file an
amended complaint adding new defendants and adding allegations of
discriminatory policies and customs”). As early as August 4, 2020, Plaintiff’s counsel
“said he plans to determine which of the dismissed claims can be raised again and
21
refile a complaint.”41 But Plaintiff waited until November 4 to raise the possibility of
amendment directly with the City’s counsel. Even then, Plaintiff did not file its
motion for leave to amend until three days before the close of discovery—more than
four months after the Court’s July 31 order dismissing nine of Plaintiff’s ten original
claims. Rewarding Plaintiff’s delay—and adding two entirely new constitutional
claims at the close of discovery—would unduly prejudice the City. This Court should
deny Plaintiff’s motion for leave to amend.
D. Denial is appropriate because Plaintiff’s proposed amendments

are futile.
The fourth good reason to deny Plaintiff’s motion for leave to amend is
futility. “An amendment is futile when it could not survive a motion to dismiss under
Rule 12(b)(6).” Jones v. Capella Univ., Civil No. 19-2521(DSD/KMM), 2020 WL
6875419, at *2 (D. Minn. Nov. 23, 2020) (citing Zutz v. Nelson, 601 F.3d 842, 850
(8th Cir. 2010)). This Court can evaluate whether the amendment is futile by
evaluating the proposed claims under the familiar Rule 12 plausibility standard. See,
e.g., id. (“To survive a motion to dismiss, and therefore avoid futility of the amended
complaint, a ‘complaint must contain sufficient factual matter, accepted as true, to
state a claim to relief that is plausible on its face.’”); Yang v. Robert Half Int’l, Inc.,
Case No. 19-CV-2669 (NEB/DTS), 2020 WL 5366771, at *3 (D. Minn. Sept. 8, 2020)
41
22
(citing Cornelia I. Crowell GST Trust v. Possis Med., Inc., 519 F.3d 778, 782 (8th Cir.
2008)).
As an initial matter, Plaintiff suggests without citation that this Court’s
“[O]rder of dismissal contemplates an amended complaint by expressly stating
dismissal was without prejudice . . . .”42 But this Court’s July 31 order is completely
silent on the possibility of an amended complaint. Although the Court’s order
dismissing without prejudice nine claims did not foreclose the possibility of
amendment, it should not be read as an invitation to do so. This is particularly true
since the deadline for amending the pleadings had already passed.
The Court’s order to dismiss without prejudice did not relieve Plaintiff from
its obligation to comply with Federal Rule of Civil Procedure 15, Local Rule 15.1, and
this Court’s Pretrial Scheduling Order. For the following reasons, the Court should
deny Plaintiff’s motion for leave as futile.
1. Futility exists where, as here, the proposed amended

complaint repackages the same basic claims based on the
same basic allegations.
To begin, Plaintiff’s proposed amended complaint admits what is undeniably
true: “the core factual allegations are still the same[.]”43 Plaintiff has not unearthed
42
43
23
any game-changing factual allegations that, if true, would alter the legal analysis of
Plaintiff’s repackaged claims.
Plaintiff’s own cited caselaw supports a finding of futility. See Rickmyer v.
Browne, 995 F. Supp. 2d 989 (D. Minn. 2014) (cited in Pl.’s Mem. [ECF 65] at 9). In
that case, the court refused to allow the plaintiff to amend all 15 counts of the
complaint, because such amendment would be futile. See id. at 1030. With respect
to the first claim, the court found that the proposed amendments were futile
because the “only factual allegations concerning [one defendant] mirror those made
in his existing complaint.” Id. at 1027. In particular, after the court “had already
determined that those facts failed to support a showing of subject matter
jurisdiction . . . with regard to the breach of contract claim,” the plaintiff sought “to
apply those same facts to a different theory—a § 1983 claim—but ma[de] no
showing whatsoever as to how those facts, even if true, amount to any violation of
his constitutional rights.” Id. The court also found that the plaintiff’s proposed
amendments against the other defendants were also futile “as his Proposed
Amended Complaint does nothing to cure the deficiencies that prompted the Court
to recommend dismissal in the first place.” Id. at 1028. The court repeated this
analysis for each of the remaining fourteen claims, dismissing them each in turn.
See id. at 1028–30.
24
Other cases from this district likewise support denying Plaintiff’s motion as
futile because the Court has already determined that the core factual allegations in
this case failed to support Plaintiff’s claims brought under the First and Fourteenth
Amendments. In Wang Xang Xiong, the court refused to allow amendments where
the proposed amended complaint merely re-styled the allegations. In that case, the
court dismissed the complaint because it alleged that the mortgagees’ failure to
prove ownership of or an interest in the borrowers’ original promissory notes
precluded them from pursuing non-judicial foreclosure, and was therefore based on
a “show-me-the-note-theory” that has been repeatedly rejected in this district.
Wang Xang Xiong v. Bank of Am., N.A., No. CIV. 11-3377 JRT/JSM, 2012 WL 4470281,
at *3 (D. Minn. Aug. 10, 2012), report and recommendation adopted, No. CIV. 11-3377
JRT/JSM, 2012 WL 4470274 (D. Minn. Sept. 27, 2012), aff'd sub nom., Welk v. Bank
of Am., N.A., 515 F. App’x 640 (8th Cir. 2013). The plaintiffs sought to amend the
complaint “to make it apparent that it is not a ‘show me the note case’” and clarify
that their claims against the lender defendants were based on the actual chain of
title to the property. Id. at *17. The court agreed with the lender defendants’
arguments that “the proposed amendments as to them were futile, as they rested on
the same legal theory as in the Complaint—that a mortgagee of record cannot
conduct a non-judicial foreclosure without additional proof that it holds the
promissory note or has been authorized by the noteholder to conduct foreclosure.”
25
Id. at *18. The court found that the amended claim was “nothing more than a rehash
of plaintiffs’ original ‘show me the note’ theory.” Id.
An amendment is likewise futile “if the amended complaint does not meet
pleading requirements” and “fails to remedy the failures found in prior efforts.”
Liscomb v. Boyce, 954 F.3d 1151, 1156 (8th Cir. 2020) (citing United States ex rel.
Joshi v. St. Luke’s Hosp., Inc., 441 F.3d 552, 557–58 (8th Cir. 2006)); Zutz v. Nelson,
601 F.3d 842, 850 (8th Cir. 2010); Mississippi River Revival, Inc. v. City of
Minneapolis, 319 F.3d 1013, 1018 (8th Cir. 2003) (amendment is futile if contrary to
decisions already made by the court). In Zutz, for instance, “the initial complaint
fail[ed] to plausibly allege the deprivation of a constitutional right, a necessary
element of any § 1983 claim,” and the plaintiffs had “moved to amend their
complaint in an attempt to avoid dismissal.” 601 F.3d at 851. Although the proposed
amended complaint “added several factual allegations in an attempt to establish
constitutional deprivation,” it was still “wholly devoid of any factual allegations
linking bad behavior of the appellees to the alleged constitutional deprivations.” Id.
The Eighth Circuit agreed that “[w]ithout alleging any facts to suggest such a causal
nexus, the proposed complaint only alleges separate actions by independent parties
which fail to state a federal cause of action.” Id. at 852. Accordingly, the court found
that “the proposed amended complaint would not survive a 12(b)(6) motion to
dismiss and is, therefore, futile.” Id.
26
Similarly, in Hines, the court found that proposed amendments were futile
when they failed to “address the critical failings of Plaintiff’s Complaint.” Hines v.
Minn. Dep’t of Corr., No. CV 18-3250 (ECT/BRT), 2020 WL 1102210, at *15 (D. Minn.
Jan. 31, 2020), report and recommendation adopted, No. 18-CV-3250 (ECT/BRT),
2020 WL 1082484 (D. Minn. Mar. 6, 2020); see also Hussey v. Minn. State Servs. for
the Blind, No. CV 18-2753 (DSD/ECW), 2019 WL 2436253, at *6 (D. Minn. June 11,
2019) (“Given that Hussey’s claims in the amended complaint are legally untenable
and the second amended complaint does not raise new theories of relief or
additional facts, the proposed second amended complaint is futile.”), aff’d as
modified sub nom., Hussey v. Pankow, 795 F. App’x 981 (8th Cir. 2020).
2. The proposed amended complaint fails to state a claim

upon which relief can be granted.
Plaintiff’s proposed amended complaint fails to correct the deficiencies in the
complaint that led this Court to dismiss nine claims. On top of the core factual
allegations being the same, all of Plaintiff’s legal theories—including the two new
ones—remain fundamentally flawed. None of the claims in the proposed amended
complaint would survive a motion to dismiss.
27
a. The proposed amended complaint includes three

claims that this Court has already dismissed.
Plaintiff includes three causes of action (Free Speech, Free Exercise, and Equal
Protection) that this Court has already dismissed. Each of these three claims would
be futile.
i. Plaintiff’s proposed free-speech claim fails

because Resolution 17-090 is reasonable and
viewpoint neutral.
To support its proposed free-speech claim, Plaintiff once again makes
sweeping allegations about the motives of individual council members. But this
Court already held that “statements by the Council Members regarding the intent
of rescinding Resolution 17-020 . . . are insufficient, as this Court must consider only
the nature of the act after stripping it of ‘all considerations of intent and motive.’”
Satanic Temple v. City of Belle Plaine, --- F. Supp. 3d ---, 2020 WL 4382756, at *3
(D. Minn. July 31, 2020) (citing Bogan v. Scott-Harris, 523 U.S. 44, 55 (1998)). In
response to that clear statement of law, Plaintiff has doubled down on the same
flawed legal theory.
Plaintiff’s additional factual allegations about the motives of individual
council members44 continue to be insufficient to state a free-speech claim. This is
44
Proposed Am. Compl. [ECF 64-1] ¶ 8(2) (stating the proposed amended
complaint “[i]dentifies the fact and timing of publicly available statements which
show the City’s highest-elected officials had a conscious purpose of promoting
28
because “[t]he Free Speech Clause only forbids Congress and . . . the States from
making laws abridging the freedom of speech—a far different proposition than
prohibiting the intent to abridge such freedom.” Sons of Confederate Veterans, Va.
Div. v. City of Lexington, 722 F.3d 224, 231 (4th Cir. 2013) (quoting Grossbaum v.
Indianapolis–Marion Cty. Bldg. Auth., 100 F.3d 1287, 1293 (7th Cir. 1996)).
“Furthermore, ‘[w]e are governed by laws, not by the intentions of legislators.’” Id.
Additionally, even if the proposed allegations about “the adverse public
reaction to the City’s permission for TST to place a Satanic monument”45 were true,
“the City was entitled to listen to the public and to enact ordinances that are
constitutional in text and in operation, and that are supported by the electorate.”
Sons of Confederate Veterans, 722 F.3d at 231; see also Hill v. Colorado, 530 U.S. 703,
724 (2000). (“[T]he contention that a statute is ‘viewpoint based’ simply because its
enactment was motivated by the conduct of the partisans on one side of a debate is
without support.”). The resolutions themselves are the objective manifestation of
the City’s motives and the text of the resolutions are generally applicable and
nondiscriminatory in their effects. In granting the City’s motion to dismiss Plaintiff’s
free-speech claims, this Court wrote that “TST alleges no facts demonstrating that
Resolution 17-090 did not apply equally to all entities seeking to erect a display or
Christianity by enacting Resolution 17-020 and had a conscious purpose of

discouraging Satanism by enacting Resolution 17-090”).
45
Proposed Am. Compl. [ECF 64-1] ¶ 8(3).
29
that TST was the only organization excluded from displaying a monument in
Veterans Memorial Park.” Id. In the proposed amended complaint, Plaintiff again
does not allege that Resolution 17-090 was unreasonable and not viewpoint
neutral.46
Plaintiff’s proposed free-speech claim fails to contend with this Court’s
previous order stating that “Belle Plaine’s decision to rescind Resolution 17-020 and
thereby close the limited public forum does not give rise to a First Amendment
challenge.” Satanic Temple, 2020 WL 4382756, at *5. The Court was clear then, and
Plaintiff has not alleged any facts that would change that analysis now. Amendment
to add the same free-speech claim this Court already dismissed would be futile. See
Sons of Confederate Veterans, 722 F.3d at 232 (stating the cases relied upon by the
plaintiff “fail to convince us that the City’s alleged desire to remove the Confederate
flag from its standards renders the Ordinance unconstitutional”); cf. Knights of
Columbus, Council No. 94 v. Town of Lexington, 272 F.3d 25, 35 (1st Cir. 2001)
(finding no free-exercise violation although a regulation limiting unattended
displays on the town green was adopted in response to a flood of religious groups
seeking to erect displays).
46
See Proposed Am. Compl. [ECF 64-1] ¶¶ 230–37.
30
ii. Plaintiff’s proposed free-exercise claim fails

because Resolution 17-090 disallowed all
private displays, not just Plaintiff’s.
This Court has already held that, “[n]ot one allegation in TST’s complaint,
either expressly or by reasonable inference, explains how Resolution 17-090 burdens
TST’s religious practice.” Satanic Temple, 2020 WL 4382756, at *4. Before that, in a
memorandum of law filed on February 7, 2020, Plaintiff conceded that the
Rescission Resolution “did not prohibit The Satanic Temple from a religious
practice.”47
Plaintiff now seeks to make a 180-degree turn away from its admission to this
Court that the Rescission Resolution did not prohibit Plaintiff from a religious
practice. Specifically, Plaintiff seeks to amend the complaint to add allegations
about “the Satanic nature of TST’s monument and the religious motivation of TST’s
involvement in this matter, such that Resolution 17-090 impacts the Free Exercise
Clause.”48 These proposed amendments are futile because, even if true, they do not
establish “that the governmental activity at issue places a substantial burden on
[Plaintiff’s] religious practice.” Satanic Temple, 2020 WL 4382756, at *4 (citing
Patel v. U.S. Bureau of Prisons, 515 F.3d 807, 813 (8th Cir. 2008)). In order to do so,
47
48
Proposed Am. Compl. [ECF 64-1] ¶ 8(1). The City does not question the
sincerity of Plaintiff’s religious beliefs, just the timing of when and how Plaintiff has
chosen to articulate them.
31
a challenged regulation must “significantly inhibit or constrain conduct or
expression that manifests some central tenet of a person’s individual religious
beliefs; . . . meaningfully curtail a person’s ability to express adherence to his or her
faith; or deny a person reasonable opportunity to engage in those activities that are
fundamental to a person’s religion.” See id. (quoting United States v. Ali, 682 F.3d
705, 709–10 (8th Cir. 2012)).
At least two facts continue to ensure that Plaintiff’s proposed free-exercise
claim would not survive a motion to dismiss. First, despite Plaintiff’s newly-alleged
religious belief, the Rescission Resolution is neutral and generally applicable
without regard to religion. See Satanic Temple, 2020 WL 4382756, at *7 (“[T]he
resolution applies equally to all entities that sought to erect a display in Veterans
Memorial Park.”). This fact dooms Plaintiff’s proposed free-exercise claim. See
Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012, 2020 (2017) (“In
recent years, when [the Supreme Court] has rejected free exercise clause challenges,
the laws in question have been neutral and generally applicable without regard to
religion.”); New Doe Child #1 v. United States, 901 F.3d 1015, 1025 (8th Cir. 2018)
(“The Free Exercise Clause requires only that the statutes at issue be neutral and
generally applicable; incidental burdens on religion are usually not enough to make
out a free exercise claim.” (citation omitted)).
32
Second, the only possible constraint on Plaintiff’s religious beliefs continues
to be that Plaintiff may not place its display on public property. Here, Plaintiff
cannot overcome the fact that there is no constitutional right to erect a private
structure on public property. See Knights of Columbus, 272 F.3d at 33 (citing Capitol
Square Review & Advisory Bd. v. Pinette, 515 U.S. 753 (1995)); Am. Jewish Cong. v. City
of Beverly Hills, 90 F.3d 379, 384 (9th Cir. 1996) (“The City constitutionally could
ban all unattended private displays in its parks.” (citing Capitol Square, 515 U.S. at
783 (Souter, J. concurring))). Additionally, the Free Exercise Clause does not include
the right to use public property as a place of worship. See Taylor v. City of Gary, 233
F. App’x 561, 562 (7th Cir. 2007) (citing Prater v. City of Burnside, 289 F.3d 417, 427–
28 (6th Cir. 2002)).
Moreover, Plaintiff’s newly-alleged religious belief does not even support its
free-exercise claim. Plaintiff alleges a religious belief that compels it to “present its
competing viewpoint wherever—and to the extent that—a government permits a
Christian viewpoint into the public sphere.”49 That religious belief cannot possibly
49
Proposed Am. Compl. [ECF 64-1] ¶ 239; see also id. ¶ 117 (stating that “offering
the Display was an exercise of TST’s religious beliefs”); id. ¶ 132 (“All of the foregoing
culminates in a religious conviction for TST to present its competing worldview
wherever the government lends its weight of authority (even if temporarily) to a
particular religious viewpoint.”); id. ¶ 135 (“TST’s efforts to place a Satanic
monument in the Veterans Park was a bona fide expression of the core tenet to
demand equal accommodation whenever a government opens the door to
religion.”).
33
be burdened by a resolution that excludes all private displays.50 There are no longer
any private displays for Plaintiff to “compete” against. Cf. Satanic Temple, 2020 WL
4382756, at *2 (“Before the passage of Resolution 17-090 on July 17, 2017, Belle Plain
Veteran’s Club voluntarily removed its display from Veterans Memorial Park.”).
The proposed free-speech claim therefore fails to allege any new facts or
theories of liability that would survive a motion to dismiss. See Emp’t Div., Dep’t of
Human Res. of Or. v. Smith, 494 U.S. 872, 886 (1990) (“The government may not
compel affirmation of religious belief, punish the expression of religious doctrines it
believes to be false, impose special disabilities on the basis of religious views or
religious status, or lend its power to one or the other side in controversies over
religious authority or dogma.”) (internal citations omitted); Satanic Temple, 2020
WL 4382756, at *4 (“TST fails to explain or allege facts that identify any central tenet
of its religious beliefs that TST cannot exercise because of Resolution 17-090.”)
(emphasis added). Plaintiff’s newly-alleged religious belief does not suffice to state
a free-exercise claim.
50
See Proposed Am. Compl.[ECF 64-1] ¶¶ 191, 198, 202; Id. Ex. 16 at 3 (email from
Plaintiff to the City stating that “[w]e would never want our monument standing
alone on public property”).
34
iii. Plaintiff’s proposed equal-protection claim

fails because Plaintiff is not a member of a
suspect class and the Rescission Resolution
applies equally to everyone.
Plaintiff’s proposed equal-protection claim also fails. In its July 31 order, this
Court wrote that “the threshold inquiry in the equal-protection analysis is whether
TST is similarly situated to any institution or person who allegedly received
favorable treatment under Resolution 17-090.” Satanic Temple, 2020 WL 4382756,
at *6 (citing United States v. Whiton, 48 F.3d 356, 358 (8th Cir. 1995)). The Court
also wrote that “TST’s equal-protection claim fails, as a threshold matter, because
TST and the Belle Plaine Veterans Club are not similarly situated.” Id. Plaintiff now
seeks to amend its complaint to allege (1) it is similarly situated to the Belle Plaine
Veterans Club and (2) it is a member of a suspect class.51
Plaintiff’s proposed equal-protection claim will not survive a motion to
dismiss because, “[w]hether a plaintiff brings the claim as a member of a protected
class or as a class of one, the plaintiff must allege ‘invidiously dissimilar’ treatment
relative to similarly situated persons.” Mitchell v. Dakota Cty. Soc. Servs., 357
F. Supp. 3d 891, 902 (D. Minn. 2019) (Wright, J.) (citing Flittie v. Solem, 827 F.2d
276, 281 (8th Cir. 1987)); see also ARRM v. Piper, 367 F. Supp. 3d 944, 958 (D. Minn.
2019) (Wright, J.) (“To state an equal-protection claim, a plaintiff must allege that
51
Proposed Am. Compl. [ECF 64-1] ¶¶ 257–58.
35
the plaintiff was ‘treated differently than other persons who were in all relevant
respects similarly situated.’” (quoting Schmidt v. Des Moines Pub. Sch., 655 F.3d 811,
820 (8th Cir. 2011))). The proposed amended complaint does not allege facts
sufficient to show that Plaintiff is in all relevant respects similarly situated to the
Belle Plaine Veterans Club.52 Nor does the amendment adequately allege invidiously
dissimilar treatment.53
Plaintiff has once more failed to “allege any facts suggesting that Resolution
17-090 is discriminatory on its face or that Resolution 17-090 has both a
discriminatory purpose and discriminatory impact.” Satanic Temple, 2020 WL
4382756, at *7 (citing Mitchell, 357 F. Supp. 3d at 902) (emphasis added). Plaintiff’s
proposed amended complaint plainly does not allege that Resolution 17-090 is
discriminatory on its face. Nor could it. “[T]he text of Resolution 17-090, which
states that ‘[p]rivate displays or memorials placed in the Park shall be removed
within a reasonable period’ and that ‘[a]ll application fees . . . will be reimbursed,’
demonstrates that the resolution applies equally to all entities that sought to erect
a display in Veterans Memorial Park.” Id.
52
See Proposed Am. Compl. [ECF 64-1] ¶ 257 (“TST is similarly situated to the
Veteran’s Club because both organizations offered to donate private memorials to
the City’s veterans, both of which were through a religious lens.”).
53
36
To be sure, Plaintiff proposed amended complaint re-alleges that the City had
a hidden discriminatory purpose behind its legislative actions.54 As this Court wrote
in July, however, conclusory allegations about the City’s motivations are insufficient
to establish an equal-protection claim. See id. (citing Ashcroft v. Iqbal, 556 U.S. 662,
686 (2009))
Plaintiff’s allegations that the City “granted the veterans group and not TST
full access to its policymaking personnel for the purposes of crafting the policies at
issue” and “the City granted a permit for the Christian monument immediately,
whereas TST’s application took one month of deliberations.”55 are the closest
Plaintiff comes to alleging discriminatory impact. Neither allegation refers directly
to Resolution 17-090. And neither allegation describes why or how the alleged
difference in treatment violated the Equal Protection Clause.
Ultimately, with respect to Plaintiff’s proposed equal-protection claim, this
Court’s holding from its July 31 order continues to apply: “Without any allegation
that TST and Belle Plaine Veterans Club are similarly situated, that Resolution 17-
090 is discriminatory on its face, or that Resolution 17-090 is discriminatory in
54
See, e.g., Proposed Am. Compl. [ECF 64-1] ¶ 266 (“[T]he City took every action
with the specific purpose of accommodating Christianity and excluding Satanism
while outwardly appearing like it was being neutral.”).
55
Proposed Am. Compl. [ECF 64-1] ¶¶ 261–62.
37
purpose and impact, TST fails to state a claim on which relief can be granted under
the Equal Protection Clause of the United States Constitution.” Id.
b. The proposed amended complaint includes two new

claims that would not survive a motion to dismiss.
Plaintiff’s proposed amended complaint includes two causes of action
(Establishment Clause and Due Process) that would not survive a motion to dismiss.
i. Plaintiff’s proposed establishment-clause

claim fails because the City did not coerce
Plaintiff to engage in a religious observance
and offense is not sufficient to state a claim
under the Establishment Clause.
Plaintiff’s proposed establishment-clause claim would not survive a motion
to dismiss because Plaintiff has not alleged that a temporary, private display with a
cross on it somehow coerced Plaintiff to engage in a religious observance. To the
contrary, Plaintiff’s proposed amended complaint states that its religious beliefs
compel it to oppose any public displays of religion.56
Plaintiff’s proposed claim also ignores the Supreme Court’s guidance that
“[s]imply having religious content or promoting a message consistent with a
religious doctrine does not run afoul of the Establishment Clause.” Van Orden v.
Perry, 545 U.S. 677, 690 (citing Lynch v. Donnelly, 465 U.S. 680, 687 (1984); and
citing Marsh v. Chambers, 463 U.S. 783, 792 (1983); and citing McGowan v.
56
See, e.g., Proposed Am. Compl. [ECF 64-1] at ¶¶ 118, 132, 135.
38
Maryland, 366 U.S. 420, 437–40 (1961); and citing Walz v. Tax Comm’n of City of
New York, 397 U.S. 664, 676–678, (1970)). In this respect, the proposed amended
complaint does not come close to stating even the most fundamental elements of
an establishment-clause claim.
“It is an elemental First Amendment principle that government may not
coerce its citizens to support or participate in any religion or its exercise.” New Doe
Child, 901 F.3d at 1023 (quoting Town of Greece v. Galloway, 572 U.S. 565, 586 (2014)
(plurality opinion)). In New Doe Child, the Eighth Circuit upheld the district court’s
dismissal of an Establishment Clause challenge against the appearance of “In God
We Trust” on U.S. money. The court relied heavily on Galloway, a case involving
opening prayers at town meetings in which the Supreme Court’s plurality opinion
made clear that “[o]ffense . . . does not equate to coercion.” Galloway, 572 U.S. at
589.
Here, “offense” is the most that Plaintiff alleges. The proposed amended
complaint adds allegations about Jane Doe, an anonymous, newly-identified
member of the Satanic Temple who “became a member of TST in March or early-
April of 2017.”57 According to the proposed amended complaint, “Ms. Doe saw the
Christian monument approximately twice daily because it was on her way to (and
57
39
from) work.”58 The veterans club’s display allegedly “offended Ms. Doe because it
made her feel like a second class citizen in her own town.”59 The proposed amended
complaint goes on to allege that, three or four months after joining the Satanic
Temple, Ms. Doe moved out of the city.60
Also, as a threshold problem, Plaintiff does not plead sufficient facts to
establish that it has standing to assert any claims on behalf of Jane Doe. An
association “has standing to bring suit on behalf of its members” only when three
criteria are met: “(a) its members would otherwise have standing to sue in their own
right; (b) the interests it seeks to protect are germane to the organization’s purpose;
and (c) neither the claim asserted nor the relief requested requires the participation
of individual members in the lawsuit.” Kuehl v. Sellner, 887 F.3d 845, 851 (8th Cir.
2018) (quoting Hunt v. Wash. State Apple Advert. Comm’n, 432 U.S. 333, 343 (1977)).
The proposed amended complaint does not allege how Jane Doe would otherwise
have standing to sue in her own right. See, e.g., Sierra Club v. Kimbell, 623 F.3d 549,
556 (8th Cir. 2010) (listing three requirements for Article III standing as “injury in
fact,” “causal connection,” and “a likelihood that the injury will be redressed by a
favorable decision of the court” (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–
58
59
60
40
61 (1992))). The proposed amended complaint also fails to make clear how the
establishment-clause claim would not require the participation of Ms. Doe in the
lawsuit.
Nevertheless, the proposed claim is futile. Plaintiff fails to allege that the
City’s actions coerced Ms. Doe or anyone else to participate in any religion or its
exercise, as required to state an establishment-clause claim. Plaintiff’s conclusory
allegations that the club’s display offended Ms. Doe61 and that, “[b] y adopting the
Enacting Resolution for the purpose of promoting Christianity, the City violated the
Establishment Clause”62 likewise fail to state a claim. Indeed, just like its previously
dismissed constitutional claims, Plaintiff fails to allege how the Enacting Resolution
violated the Establishment Clause. Cf. Satanic Temple, 2020 WL 4382756, at *4
(“Not one allegation in TST's complaint, either expressly or by reasonable inference,
explains how Resolution 17-090 burdens TST's religious practice.”). Plaintiff’s
proposed establishment-clause claim is futile.
ii. Plaintiff’s proposed due-process claim is futile.
Plaintiff’s proposed due-process claim also is futile. Plaintiff alleges that it had
a right to be heard at a meaningful time and in a meaningful manner before the City
61
62
41
revoked Plaintiff’s one-year permit to install a private display in the park.63 Plaintiff’s
allegation overlooks the plain language on the face of the Enacting Resolution: “In
the event the City desires to close the limited public forum or rescind this policy,
the City, through its City Administrator, may terminate all permits by giving ten (10)
days’ written notice of termination to Owner, within which period the owner must
remove their display from city property.”64 Plaintiff’s permit application agreed to
this limited-public-forum policy.65 The City issued the permit under this policy.
Plaintiff’s proposed amended complaint fails to state a due-process claim.
The Supreme Court of the United States has held that due process “is a flexible
concept that varies with the particular situation.” Zinermon v. Burch, 494 U.S. 113,
127 (1990). “The requirements of procedural due process apply only to the
deprivation of interests encompassed by the Fourteenth Amendment’s protection
of liberty and property.” Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 569
(1972). Where no protected life, liberty, or property interest exists, there can be no
due-process violation. See Dobrovolny v. Moore, 126 F.3d 1111, 1113 (8th Cir. 1997).
Plaintiff’s conclusory allegation that its permit was an entitlement is not
enough to state a due-process claim. Property interests “are created and their
63
Proposed Am. Compl. [ECF 64-1] ¶ 273–74.
64
Compl. Ex. 1, p. 3.
65
Compl. Ex. 2, p. 4.
42
dimensions are defined by existing rules or understandings that stem from an
independent source such as state law—rules or understandings that secure certain
benefits and that support claims of entitlement to those benefits.” Roth, 408 U.S. at
577. Minnesota law limits “the property rights that are entitled to due process to real
property rights, final judgments, and certain vested statutory rights.” Schatz v.
Interfaith Care Ctr., 811 N.W.2d 643, 658 (Minn. 2012) (citing In re Individual 35W
Bridge Litig., 806 N.W.2d 820, 830–31 (Minn. 2011)). Accordingly, to assert a due-
process claim, Plaintiff must allege what rules or understandings define its alleged
entitlement. Plaintiff cannot do so because both the Enacting Resolution and the
permit issued under it are very clear: Plaintiff’s permit was good for one year and
revocable with ten days’ notice. And the permit allowed a display on public property.
This is an important distinction in this case because “the government need not keep
a limited public forum open indefinitely.” Satanic Temple, 2020 WL 4382756, at *5
(citing Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 46 (1983)).
The other factual allegations in the proposed amended complaint directly
undermine Plaintiff’s conclusory allegation that it did not have notice and
opportunity to be heard. According to Plaintiff, it received notice of the City’s
intention to consider eliminating the limited public forum on July 14—three days
43
before the council meeting at which the City did exactly that.66 Plaintiff therefore
had both notice (via the July 14 communication from the city administrator) and an
opportunity to be heard (before or at the July 17 council meeting). No matter how
one looks at it, the proposed amended complaint fails to state a due-process claim.
c. Plaintiff’s proposed amended complaint is

unnecessary regarding Plaintiff’s promissory-
estoppel claim.
This Court previously held that Plaintiff had sufficiently alleged a promissory-
estoppel claim. Satanic Temple, 2020 WL 4382756, at *8. Plaintiff’s proposed
amended promissory-estoppel claim is unnecessary.67
Besides the promissory-estoppel claim, all other claims in the proposed
amended complaint would not survive a motion to dismiss. Therefore—in addition
to the three good reasons of undue delay, dilatory motive, and prejudice to the
City—the Court should deny the motion for leave to amend as futile.
III. The City opposes Plaintiff’s Rule 41(a)(2) motion to dismiss.
In the alternative to its motion to amend the scheduling order and motion for
leave to amend the complaint, Plaintiff seeks voluntary dismissal under Federal Rule
66
See Proposed Am. Compl. [ECF 64-1] ¶ 194 (“[O]n July 14, the City
Administrator notified TST that, on July 17, the Council would be ‘considering’ a
resolution to eliminate the limited public forum.” (citing id. Ex. 17)).
67
44
of Civil Procedure 41(a)(2).68 The City opposes the motion because Plaintiff’s
voluntary dismissal at this late stage in the case would be unfair to the City. If the
Court is inclined to grant Plaintiff’s Rule 41(a)(2) motion, it should do so on the
condition that Plaintiff voluntarily dismisses the entire complaint with prejudice.
“The purpose of Rule 41(a)(2) is primarily to prevent voluntary dismissals
which unfairly affect the other side.” Paulucci v. City of Duluth, 826 F.2d 780, 782
(8th Cir. 1987) (citing Conafay v. Wyeth Labs., 793 F.2d 350, 352–53 (D.C. Cir. 1986);
and citing Kern v. TXO Prod. Corp., 738 F.2d 968, 970–71 (8th Cir. 1984)). The Eighth
Circuit has identified three factors for district courts to consider in exercising their
sound discretion to decide a Rule 41(a)(2) motion: “(1) whether the party has
presented a proper explanation for its desire to dismiss; (2) whether a dismissal
would result in a waste of judicial time and effort; and (3) whether a dismissal will
prejudice the defendants.” Hamm v. Rhone-Poulenc Rorer Pharm., Inc., 187 F.3d 941,
950 (8th Cir. 1999) (internal citations omitted). “Likewise, a party is not permitted
to dismiss merely to escape an adverse decision nor to seek a more favorable forum.”
Id. (citing Holmgren v. Massey–Ferguson, Inc., 516 F.2d 856, 857 n. 1 (8th Cir. 1975);
and citing Int’l Shoe Co. v. Cool, 154 F.2d 778, 780 (8th Cir. 1946), cert. denied, 329
U.S. 726 (1946)).
68
The City’s counsel is not aware of any applicable rule or case for a “non-suit”
in federal court.
45
To be clear, the City does not fear a second lawsuit. Cf. Paulucci, 826 F.2d at
782 (“Courts generally will grant dismissals where the only prejudice the defendant
will suffer is that resulting from a subsequent lawsuit.”). The City is confident that
no new or rehashed claims arising from the facts in this case will survive a motion
to dismiss.
The City does, however, oppose the Rule 41(a)(2) motion because it fails to
meet any of the three factors for dismissal under the rule. First, Plaintiff has not
presented a proper explanation for seeking dismissal. Plaintiff’s only explanation is
that it “needs more time to gather admissible evidence about the City’s
motivations.”69 It would be unfair to the City to grant the Plaintiff’s motion because
Plaintiff needs more time to search for evidence to prove its case—especially when
“evidence about the City’s motivations” is of questionable value in proving any
possible claim against the City. See, e.g., Satanic Temple, 2020 WL 4382756, at *3
(“TST identifies statements by the Council Members regarding the intent of
rescinding Resolution 17-020. These statements are insufficient, as this Court must
consider only the nature of the act after stripping it of “all considerations of intent
and motive.” (citing Bogan, 523 U.S. at 55)). Besides, the text of the resolutions
themselves serve as the objective manifestations of the City’s motives. See, e.g.,
Ambassador Books & Video, Inc. v. City of Little Rock, 20 F.3d 858, 863 (8th Cir.
69
Pl. Mem. [ECF 65] at 13.
46
1994) (“It is a familiar principle of constitutional law that this Court will not strike
down an otherwise constitutional statute on the basis of an alleged illicit legislative
motive. . . . What motivates one legislator to make a speech about a statute is not
necessarily what motivates scores of others to enact it[.]” (quoting United States v.
O’Brien, 391 U.S. 367, 383–84 (1968))). Without any claims pending against
individual defendants and no such claims included in the proposed amended
complaint, Plaintiff’s stated need to gather more evidence about the City’s
motivations is unsatisfactory.
Second, the City opposes the Rule 41(a)(2) motion because voluntary
dismissal would result in a waste of judicial time and effort. Plaintiff admits as
much.70
Third, the City opposes the Rule 41(a)(2) motion because voluntary dismissal
would prejudice the City. This action is based on events in 2017. This case has been
pending in this Court for more than 19 months. In that time, the City successfully
moved to dismiss nine of ten claims in the complaint while successfully defending
against Plaintiff’s motion for judgment on the pleadings. Now, after the close of
discovery, Plaintiff seeks to dismiss its case so that it can “start a second round of
litigation.” The City would face significant costs if forced to start all over. For all
70
47
these reasons, the City would be prejudiced if the Court grants Plaintiff’s Rule
41(a)(2) motion. See, e.g., Scallen v. Minn. Vikings Football Club, Inc., 574 F. Supp.
278, 280 (D. Minn. 1983) (denying Rule 41(a)(2) motion in part because case had
been pending for one-and-one-half years, there had been considerable discovery at
substantial cost to defendant, and plaintiff was attempting to avoid summary
judgment ruling).
The Court should also deny Plaintiff’s motion for voluntary dismissal in so far
as it appears to be an attempt to escape an adverse decision at the impending
summary-judgment stage of the case.71 If the Court grants Plaintiff’s Rule 41(a)(2)
motion, the Court should (1) do so on the condition that Plaintiff voluntarily
dismisses the entire complaint with prejudice or (2) require that Plaintiff pay the
City’s litigation costs to date. See Fed. R. Civ. P. 41(a)(2) (“[A]n action may be
dismissed at the plaintiff's request only by court order, on terms that the court
considers proper.”); 9 Charles Alan Wright & Arthur R. Miller, Fed. Prac. & Proc. Civ.
§ 2366 (4th ed.) (stating that trial court has power to set conditions and, “[i]f the
conditions are thought too burdensome, the plaintiff need not accept them”); id.
(“[U]sually the district judge at least will require that the plaintiff pay some or all of
the defendant's litigation costs. That practice has become commonplace . . . .”).
71
See Pl.’s Mem. [ECF 65] at 7 (“Suffice it to say that there is much more to be
done to get this case trial-ready.”).
48
CONCLUSION
The Court should deny Plaintiff’s motion for leave to amend complaint and
to amend scheduling order. Plaintiff has not demonstrated good cause for amending
the complaint. Nor has Plaintiff demonstrated good cause for extending the
deadlines in the scheduling order.
The Court also should deny Plaintiff’s Rule 41(a)(2) motion for voluntary
dismissal. If the Court is inclined to grant Plaintiff’s Rule 41(a)(2) motion, the Court
should (1) do so on the condition that Plaintiff voluntarily dismisses the entire
complaint with prejudice or (2) require that Plaintiff pay the City’s litigation costs
to date.
Dated: December 8, 2020 GREENE ESPEL PLLP
s/ Samuel J. Clark
Monte A. Mills, Reg. No. 030458X
Samuel J. Clark, Reg. No. 0388955
222 S. Ninth Street, Suite 220
Minneapolis MN 55402
mmills@greeneespel.com
sclark@greeneespel.com
(612) 373-0830
Attorneys for Defendants
49
CASE 0:19-cv-01122-WMW-LIB Doc. 68-1 Filed 12/08/20 Page 1 of 2
UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA
The Satanic Temple, Case No. 19-CV-01122 (WMW/LIB)
Plaintiff,
v.
City of Belle Plaine, Minnesota; LOCAL RULE 7.1(f) AND 7.1(h)

Councilman Cary Coop, CERTIFICATE OF COMPLIANCE
individually and as City Council
Member of the City of Bell Plaine;
Councilwoman Theresa McDaniel,
individually and as City Council
Member of the City of Bell Plaine;
Councilman Ben Stier, individually
and as City Council Member of the
City of Bell Plaine; Councilman
Paul Chard, individually and as
City Council Member of the City of
Bell Plaine; and Mayor Christopher
Meyer, individually and as Mayor
of the City of Bell Plaine,
Defendants.
I, Samuel J. Clark, certify that the
Memorandum titled: Defendants’ Memorandum of Law in

Opposition to Plaintiff’s Motion for Leave to Amend Complaint
and Amend Scheduling Order; or, Alternatively, for A Contested
Non-Suit.
or
Objection or Response to the Magistrate Judge’s Ruling complies

with Local Rule 72.2(d).
I further certify that, in preparation of the above document, I:

CASE 0:19-cv-01122-WMW-LIB Doc. 68-1 Filed 12/08/20 Page 2 of 2
Used the following word processing program and version:

Microsoft Word Version 2016 and that this word processing
program has been applied specifically to include all text,
including headings, footnotes, and quotations in the following
word count.
or
Counted the words in the document.
I further certify that the above document contains the following number of
words: 11,502.
Dated: December 8, 2020 GREENE ESPEL PLLP
s/ Samuel J. Clark
Monte A. Mills, Reg. No. 030458X
Samuel J. Clark, Reg. No. 0388955
222 S. Ninth Street, Suite 220
Minneapolis MN 55402
mmills@greeneespel.com
sclark@greeneespel.com
(612) 373-0830
Attorneys for Defendants

2020 12 08 - 68 - City Opposition To Motion To Extend

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CASE 0:19-cv-01122-WMW-LIB Doc.

68 Filed 12/08/20 Page 1 of 49

UNITED STATES DISTRICT COURT

The Satanic Temple, Case No. 19-CV-01122 (WMW/LIB)

Plaintiff, DEFENDANT’S MEMORANDUM

The three-part motion brought by The Satanic Temple (“Plaintiff”) fails to

motion. Plaintiff’s list of excuses is unconvincing.

In support of its motion to amend the scheduling order, Plaintiff provides

necessary to amend the scheduling order—certainly not by extending the deadlines

by a year, as Plaintiff requests.

In support of its motion for voluntary dismissal, Plaintiff’s excuse is that it

The Court should deny the three-part motion in its entirety.

the parties’ intention to file cross-motions for judgment on the pleadings. On

Plaintiff’s reply memorandum of law in support of Plaintiff’s motion for judgment

on the pleadings, attended oral argument, and argued both motions.

Resolution”), eliminated the limited public forum in the City’s park.

In the July 31 order, this Court dismissed Plaintiff’s Free-Exercise Claims

Promissory-Estoppel Claim (Count VII). Id.

Plaintiff, asking for a response by November 4.4

On November 4, in response to the City’s October 23 discovery deficiency

complaint to correct the pleading deficiencies of my predecessors.”7 Plaintiff ended

Plaintiff’s counsel thought “six months is a reasonable time to complete discovery”

and “two months should be enough time for amended pleadings.”9

On November 9, 2020, the City’s counsel wrote Plaintiff’s counsel, stating

On November 10, in response to a November 9 letter from Plaintiff’s counsel,

the City’s counsel again wrote Plaintiff’s counsel, stating:

To be clear, the City will not stipulate to an extension of the scheduling

The City’s counsel also addressed the City’s unwillingness to stipulate to

facts at issue.’”13 The City’s counsel further stated that:

We will oppose any attempt to amend the complaint to add claims at

amending the pleadings and amending the scheduling order.

On November 11, Plaintiff’s counsel wrote the City’s counsel, announcing

reached no resolution on extending the deadline to amend pleadings” and “I intend

Establishment Clause).”16 At the end of the paragraph, Plaintiff wrote, “I expect to

have that filed tomorrow.”17

In its November 11 letter, Plaintiff’s counsel also addressed a potential motion

On December 1, Plaintiff filed this three-part motion for leave to amend

The Court should deny all parts of Plaintiff’s motion.

I. Plaintiff has not demonstrated good cause for amending the

is the movant’s diligence in attempting to meet the order’s requirements.” Id.

party seeking to modify a Scheduling Order, as opposed to the litany of unpersuasive

excuses, inclusive of inadvertence and neglect, which commonly undergird an

Fed. R. Civ. P. 16(b) advisory committee notes).

discovery.20 Each falls short of Plaintiff’s burden under Rule 16.

parties seek to coordinate a schedule for presenting cross-motions for judgment on

Plaintiff from meeting the deadlines in the scheduling order is unpersuasive.

judgment on the pleadings. Plaintiff’s counsel argued the motions.23 As early as

August 4, Plaintiff’s counsel “said he plans to determine which of the dismissed

is silent as to why Plaintiff’s replacement of its counsel in February 2020 somehow

requires a year-long extension of the deadlines. In any event, because Plaintiff’s

outside the scope of permissible discovery on Plaintiff’s promissory-estoppel claim.

By contrast, in its memorandum of law in support of its motion to amend the

diligent in attempting to comply with the scheduling order: Plaintiff alludes to

regard to . . . discovery . . . shall be called immediately to the Court’s attention by

extensions to the deadlines for expert disclosures, non-dispositive motions,

dispositive motions, and trial readiness. Knowing that discovery closed on

October and its first deposition notices in November. Plaintiff’s efforts in

amount to diligent attempts to meet the deadlines in the order.

settled expectations laid out in the scheduling order.

reasons for denying a motion for leave to amend).

A. Granting Plaintiff’s motion will cause undue delay.

is transparent about how much delay it hopes to achieve. Plaintiff simultaneously

constitutional claims. As early as August 4, 2020, Plaintiff’s counsel “said he plans