65 - MOLMetroMotiontoDismiss PDF

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE

AT NASHVILLE
THE LOCAL SPOT, INC., et al., )

)
Plaintiffs, ) Case No. 3:20-cv-00421
)
v. ) Judge Richardson
) Magistrate Judge Holmes
WILLIAM B. LEE, et al. )
)
Defendants. )
)
)
MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS

BY MAYOR JOHN COOPER AND DR. MICHAEL CALDWELL IN THEIR OFFICIAL
CAPACITIES
Defendants Mayor John Cooper and Director of Health Dr. Michael Caldwell sued in their
official capacities as Metropolitan Government (“Metro”) officials, move to dismiss all claims
against Metro and state to the Court as follows:
FACTUAL BACKGROUND
I. COVID-19 Pandemic
The novel coronavirus that causes the disease known as COVID-19 has created a global
pandemic whose scope and severity has not been seen since the influenza pandemic of 1918. More
than 16 million cases of COVID-19 have been confirmed worldwide, with nearly 650,000 global
deaths from the disease.1 According to the Centers for Disease Control and Prevention (the
“CDC”), there are more than 4 million cases of COVID-19 in the United States, and the disease is
1
Coronavirus Resource Center, JOHNS HOPKINS U. AND MED.,
https://coronavirus.jhu.edu/map.html (last visited July 27, 2020).
{N0355692.1} 1
Case 3:20-cv-00421 Document 65 Filed 07/28/20 Page 1 of 40 PageID #: 1199

responsible for over 145,000 deaths in this country.2 These unfortunate statistics have prompted
public health emergency declarations related to COVID-19 by the World Health Organization and
the United States Department of Health and Human Services.
II. Metro’s Response to the Pandemic
As COVID-19 continued to spread throughout the world, including the United States,
Metro responded to the pandemic to protect the health and safety of those living and working in
Nashville and Davidson County. On March 15, 2020, the Metropolitan Board of Health held a
special public meeting and voted to issue a Declaration of Public Health Emergency related to
COVID-19,3 urging those who develop disease symptoms to self-isolate and contact their health
care provider, and instructing health care professionals to immediately report all suspected cases
of COVID-19. The declaration directed the Chief Medical Director of Health, Dr. Michael C.
Caldwell, to “act as necessary to maintain and protect the public health” in a manner consistent
with authority derived from state and local law and to limit the operation of businesses licensed to
serve food or beverages. Pursuant to this declaration, on March 17, 2020, Chief Medical Director
Caldwell issued Order 1,4 which suspended operation of establishments whose primary business
is alcohol service (i.e., bars) and limited operation of establishments whose primary business is
food service (i.e., restaurants) to 50% capacity, with restaurant “bar areas” limited to 10% capacity.
2
Cases in the U.S., CTRS. FOR DISEASE CONTROL AND PREVENTION,
https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-us.html (last updated July
26, 2020).
3
Health Board Declaration: COVID-19 Public Health Emergency, available at
https://www.nashville.gov/Metro-Clerk/Legal-Resources/Emergency-Health-Orders/COVID19-
Public-Health-Emergency-Declaration.aspx. This Declaration has been amended three times at
subsequent Health Board meetings and is now set to expire on July 31, 2020. Id.; see also
https://www.nashville.gov/Health-Department/Board-of-Health.aspx (special meeting agendas).
4
Health Director Order 1: Suspending Bars and Limiting Restaurant Capacity, available at
https://www.nashville.gov/Metro-Clerk/Legal-Resources/Emergency-Health-Orders/Order-
1.aspx.
{N0355692.1} 2

On March 18, 2020, Mayor Cooper issued Executive Order 006 declaring a State of Civil
Emergency related to COVID-19.5 This executive order activated Metro’s emergency management
powers, as authorized by state law, and directed Chief Medical Director Caldwell to confer
regularly with the Mayor regarding public protection from the disease.6 Since the state of
emergency declaration, Mayor Cooper has provided frequent press updates and news conferences
regarding Metro’s COVID-19 monitoring and response efforts.7 Shortly thereafter on March 20,
2020, Chief Medical Director Caldwell issued two orders: Order 1A8 amended Order 1 by
suspending on-premises dining at restaurants, and Order 29 suspended operation of all gymnasiums
and exercise facilities. Notably, Order 1A did not limit any properly licensed establishment from
providing take-out, window, drive-through, curb-side, or delivery services.
As it became more evident that reducing the number of individuals suffering from COVID-
19 (known as “flattening the curve”) was essential for limiting the strain on the healthcare system
and, ultimately, for saving lives, Metro continued to respond to the pandemic, and on March 23,
5
Mayor John Cooper Executive Order Number 006: Declaration of a State of Civil Emergency
Related to the COVID-19 Epidemic, available at https://www.nashville.gov/Metro-Clerk/Legal-
Resources/Executive-Orders/Mayor-John-Cooper/jc006.aspx.
6
State law limits a declared state of emergency to seven days but permits extension of such
declarations in seven-day increments. TENN. CODE ANN. § 58-2-110(3)(A)(v). Accordingly,
Mayor Cooper has consistently extended Executive Order 006 to ensure its continued
effectiveness. Mayor Cooper most recently extended the order on July 15, 2020. See Mayor John
Cooper Executive Order Number 006Q: Seventeenth Extension of the State of Civil Emergency
Related to the Covid-19 Epidemic, available at https://www.nashville.gov/Metro-Clerk/Legal-
Resources/Executive-Orders/Mayor-John-Cooper/jc006q.aspx.
7
Available at https://www.asafenashville.org/updates/.
8
Health Director Order 1A: Suspending Restaurant Dining Rooms, available at
1A.aspx.
9
Health Director Order 2: Suspending Gymnasiums and Fitness Facilities, available at
2.aspx.
{N0355692.1} 3

2020, Chief Medical Director Caldwell issued Order 3.10 Titled “Safer at Home,” this order urged
individuals to “shelter at home as much as possible” and to practice appropriate social distancing
techniques when outside of the home, including maintaining a six-foot distance from others
regardless of whether they exhibit COVID-19 symptoms. This order also prohibited gatherings of
more than ten people and ordered the closure of all businesses not performing essential services,
although on-line and delivery services of such businesses were permitted to continue. The order
exempted critical infrastructure sectors identified by the United States Department of Homeland
Security. It also exempted certain sectors and businesses that provided services essential for public
health and well-being and provided operational guidance for these essential businesses. Order 3
was to remain in effect for two weeks, subject to extension.
“Safer at Home” was amended and restated by Chief Medical Director Caldwell on April
1, 2020, with issuance of Order 3A.11 This order closed additional city amenities (e.g.,
playgrounds, tennis courts, picnic shelters), provided further operational guidance to certain
sectors and businesses to ensure adherence to CDC social distancing guidelines, and stated that all
available enforcement options would be utilized to assure compliance with the order. Order 3A
extended “Safer at Home” through April 24, 2020, and later amendments ultimately extended it
through May 11, 2020.12
10
Health Director Order 3: Safer at Home, available at https://www.nashville.gov/Metro-
Clerk/Legal-Resources/Emergency-Health-Orders/Order-3.aspx.
11
Health Director Order 3A: Safer at Home, Amended and Restated, available at
3a.aspx.
12
See Health Director Order 3A1: First Amendment to Amended and Restated Safer at Home
Order, available at https://www.nashville.gov/Metro-Clerk/Legal-Resources/Emergency-Health-
Orders/3a1.aspx; Health Director Order 3B: Amendment and Second Extension of Amended and
Restated Safer at Home Order, available at https://www.nashville.gov/Metro-Clerk/Legal-
Resources/Emergency-Health-Orders/3b.aspx; Health Director Order 3B1: Third Extension of
{N0355692.1} 4

In light of emerging data regarding how COVID-19 spreads, on April 30, 2020, Chief
Medical Director Caldwell issued Order 413 urging residents and visitors of Nashville and
Davidson County to wear cloth face coverings or masks when in community settings. The order
required businesses open to the public to post signage urging customers to wear face coverings or
masks while visiting the business and recommended that such businesses require employees to
wear face coverings or masks when physically interacting with the public or other employees. This
order was later amended14 to mandate that businesses require employees to wear face coverings or
masks when physically interacting with the public or other employees, and Mayor Cooper
subsequently issued Executive Order 00715 requiring all persons entering Metro government
buildings to wear cloth face coverings or masks. Both orders were to remain in effect through May
31, 2020.
Following Metro’s robust and multifaceted response to the pandemic, the rate at which
COVID-19 was spreading in Nashville and Davidson County began to slow, and Metro began
preparing for reopening Nashville while living with the disease. The Metropolitan Board of Health
amended its Declaration of Public Health Emergency to include an end date,16 and on April 23,
Amended and Restated Order 3 From the Chief Medical Director, available at
https://www.nashville.gov/Metro-Clerk/Legal-Resources/Emergency-Health-Orders/3b1.aspx.
13
Health Director Order 4: Cloth Face Coverings or Masks Order, available at
4.aspx.
14
Health Director Amended Order 4: Cloth Face Coverings or Masks Order, available at
4a.aspx.
15
Mayor John Cooper Executive Order Number 007: Requirement that Face Coverings be Worn
at Metropolitan Government Buildings, available at https://www.nashville.gov/Metro-
Clerk/Legal-Resources/Executive-Orders/Mayor-John-Cooper/jc007.aspx.
16
See First Amendment to Board of Health Declaration of Public Health Emergency, available at
https://www.nashville.gov/Metro-Clerk/Legal-Resources/Emergency-Health-Orders/COVID19-
Public-Health-Emergency-Amendment-1.aspx; Second Amendment to Board of Health
Declaration of Public Health Emergency, available at https://www.nashville.gov/Metro-
{N0355692.1} 5

2020, Mayor Cooper released a “Roadmap for Reopening Nashville.”17 The mayor’s Roadmap
included a four-phase reopening of Nashville and Davidson County’s economy, with fewer
limitations placed on businesses with each phase. The Roadmap included a set of metrics by which
movement into each phase would be determined, including sustained reductions or stability of new
cases over a two-week period and availability of diagnostic testing.
On May 8, 2020, as these Roadmap metrics were being met, Chief Medical Director
Caldwell issued Order 518 outlining Phase One for reopening the city, to take effect a few days
later on May 11. Under Phase One, gatherings of up to ten people were permitted, but individuals
at high-risk for infection were urged to continue sheltering at home. Restaurants and bars serving
food from a menu, as well as retail and commercial businesses, were permitted to open at 50%
capacity, with certain restrictions to ensure compliance with CDC guidance on social distancing.
Bar areas were to remain closed to the public, and no live music or entertainment was permitted.
Accordingly, Order 5 superseded and repealed Order 1A, which suspended on-premises dining at
restaurants, and Order 3A, the amended “Safer at Home” order.
As the trend of new cases continued to decline, on May 22, 2020, Chief Medical Director
Caldwell issued Order 619 outlining Phase Two for reopening the city, effective May 25. Under
Clerk/Legal-Resources/Emergency-Health-Orders/COVID19-Public-Health-Emergency-
Amendment-2.aspx; Third Amendment to Board of Health Declaration of Public Health
Emergency, available at https://www.nashville.gov/Metro-Clerk/Legal-Resources/Emergency-
Health-Orders/COVID19-Public-Health-Emergency-Amendment-3.aspx.
17
Roadmap for Reopening Nashville, available at https://www.asafenashville.org/roadmap-for-
reopening-nashville/.
18
Health Director Order 5: Phase One – Reopening, available at
5.aspx.
19
Health Director Order 6: Phase Two – Reopening, available at
6.aspx.
{N0355692.1} 6

Phase Two, gatherings of up to 25 people were permitted, but individuals at high-risk for infection
were urged to continue sheltering at home if possible. Metro community centers, clubhouses,
museums, tennis courts, and nature centers were permitted to operate. Restaurants and bars serving
food from a menu, as well as retail and commercial businesses, were permitted to open at 75%
capacity, with certain restrictions to ensure compliance with CDC guidance on social distancing.
Bar areas were to remain closed to the public, but live music and entertainment were permitted.
While Order 6 limited the number of performers on stage to two at a time, Amendment 1,20 which
was issued by Chief Medical Director Caldwell on May 29, 2020, allowed more performers to be
on stage subject to certain restrictions to maximize the health and safety of performers, employees,
and guests.21 Several additional sectors and businesses were permitted to operate at 50% capacity
under Phase Two, with certain restrictions to ensure compliance with CDC guidance on social
distancing. Such businesses included close contact personal care services, such as hair and nail
salons; gymnasiums and fitness facilities; attractions and participatory activities, such as bowling
alleys and water parks; and day camps. Accordingly, Order 6 superseded and repealed Order 2,
which suspended operation of gymnasiums and exercise facilities, and Order 5, which established
Phase One.
On June 19, 2020, as the Roadmap metrics were continuing to be met, Chief Medical
Director Caldwell issued Order 7 “Phase Three: Reopening”22 outlining Phase Three for reopening
20
Health Director Amended Order 6A: Phase Two – Reopening, available at
6a.aspx.
21
Amendment 1 requires performers’ temperatures to be taken upon arrival; performers must
supply their own equipment, such as microphones, mic stands, and drumsticks; and the stage must
be fully sanitized between acts.
22
Order 7 From the Chief Medical Director, Phase Three: Reopening, available at
7.aspx.
{N0355692.1} 7

the city to take effect on June 22, 2020. Under Order 7, restaurants and bar serving food items
could operate at 75% or less of occupancy with certain conditions and restrictions to ensure
compliance with CDC guidance on social distancing and limiting the spread of the disease. Bar
counters could open to the public at 50% or less of seated counter capacity and live music was
permitted with certain conditions and restrictions.
On July 2, 2020, and based on metrics contained in the Roadmap, the significant increase
in COVID-19 cases in Davidson County, and the origins of clusters of COVID-19 infections, Chief
Medical Director Caldwell issued Order 9 “Phase 2 With Modifications: Reopening,” which
pauses Phase Three and implements a hybrid of Phase Two. This Order took effect at 12:01 a.m.
on July 3, 2020. (See Order 9, Doc. No. 32-1). Order 9 revised Order 7 – Phase Three Reopening
by replacing Section 4 with the following:
Section 4 is replaced with the following:
An individual, entity or organization that holds a license as a Limited Service

Restaurant (defined in T.C.A. § 57-5-102(22) [sic]23) issued by the Tennessee
23
The correct statutory reference is T.C.A. § 57-4-102(22), which provides:
“Limited service restaurant” means a facility possessing each of the following characteristics:
(A) Is a public place which has a seating capacity for at least forty (40) patrons and that is kept,
used, maintained, advertised and held out to the public as a place where during regular hours of
operation:
(i) Alcoholic beverages, beer or wine are served to patrons;
(ii) A menu of prepared food is made available to patrons;
(iii) The gross revenue from the sale of prepared food is fifty percent (50%) or less than the gross
revenue from the sale of alcoholic beverages; provided, however, that gross revenue of more than
fifty percent (50%) from the sale of prepared food shall not prevent a facility from receiving a
“limited service restaurant” license or subject such facility to a fine from the commission for
having gross revenue of more than fifty percent (50%) from the sale of prepared food. For purposes
of determining the gross revenue from the sale of prepared food, chips, popcorn, pretzels, peanuts
and similar snack items shall not be included in gross revenue from the sale of prepared food sold;
(iv) The facility affirmatively establishes, to the satisfaction of the commission, that it has
complied and will comply with the requirements of § 57-4-204;
(v) The facility provides adequate security during the regular hours of operation; and
(vi) Sleeping accommodations are not provided;
{N0355692.1} 8

ABC shall be closed to the public until 12:01 a.m. CDT on July 17, 2020, but may
continue to provide curbside or off-premise delivery of prepared food or
beverages subject to any federal, state, or local laws, provided that no
consumption shall occur on premises.
An individual, entity or organization whose primary business is food service (any

food service establishment as defined in T.C.A. § 68-14-703(9))24 except those
(B) Is located within the jurisdictional boundaries of a political subdivision which has authorized
the sale of alcoholic beverages for consumption on the premises as provided in § 57-4-103; and
(C) Is located in an area which is properly zoned for facilities authorized to sell alcoholic beverages
for consumption on the premises
24
“Food service establishment” means any establishment, place or location, whether permanent,
temporary, seasonal or itinerant, other than retail food stores, where food is prepared and the public
is offered to be served or is served food, including, but not limited to, foods, vegetables, or
beverages not in an original package or container, food and beverages dispensed at soda fountains
and delicatessens, sliced watermelon, ice balls, or water mixtures;
(B) “Food service establishment” includes places identified in subdivision (9)(A) regardless of
whether there is a charge for the food;
(C) “Food service establishment” does not include private homes where food is prepared or served
and not offered for sale, retail food store operations, food service establishments located within a
retail food store, the location of vending machines, and supply vehicles;
(D) “Food service establishment” does not include churches, temples, synagogues or other
religious institutions, civic, fraternal, or veteran's organizations where food is prepared, served,
transported, or stored by volunteer personnel only on non-consecutive days. However, the storage
of unopened, commercially canned food, packaged bulk food that is not potentially hazardous, and
dry goods shall not apply for these purposes;
(E) “Food service establishment” does not include grocery stores that may, incidentally, make
infrequent casual sales of uncooked foods for consumption on the premises, or any establishment
whose primary business is other than food service, that may, incidentally, make infrequent casual
sales of coffee or prepackaged foods, or both, for consumption on the premises. For the purposes
of this subdivision (9)(E), “infrequent casual sales” means sales not in excess of one hundred fifty
dollars ($150) per day on any particular day;
(F) “Food service establishment” does not include a location from which casual, occasional food
sales are conducted solely in connection with youth-related amateur athletic or recreational
activities or primary or secondary school-related clubs by volunteer personnel and that are in
operation for twenty-four (24) consecutive hours or less;
(G) “Food service establishment” does not include a catering business that employs no regular,
full-time employees, the food preparation for such business is solely performed within the confines
of the principal residence of the proprietor, and the catering business makes only “occasional sales”
during any thirty-day period; and
(H) “Food service establishment” does not include a house or other residential structure where
seriously ill or injured children and their families are provided temporary accommodations in
proximity to their treatment hospitals and where food is prepared, served, transported or stored by
volunteer personnel; provided, that the house or structure is supported by a § 501(c)(3)
{N0355692.1} 9

subject to the provisions in the preceding paragraph may operate at the lesser of
50% of the maximum capacity authorized by Tennessee’s Building and Fire Code
or 100 patrons per floor, provided the business equally distributes patrons
throughout the entire amount of space to the following conditions…
Section 5 is revised to provide that bars that hold an on-premise beer permit but
do not hold a license issued by the Tennessee ABC shall close until 12:01 a.m.
CDT on July 17, 2020, but may continue to provide curbside or off-premise
delivery of beverages subject to any applicable federal, state, or local laws,
provided that no consumption shall occur on premises. Otherwise, the provisions
in Section 5 remain unchanged.
Section 7 is revised to provide that the maximum number of people allowed in

event, rental, and music venues, businesses and facilities, except those listed in
Section 2 in Amended and Restated Order 7 from the Chief Medical Director,
shall not exceed 25. Otherwise, the provisions in Section 7 remained unchanged.
On July 16, 2020, Order 9 was amended to extend its application until July 31, 2020.25
III. Plaintiffs’ Second Amended Complaint
Plaintiffs26 in this case are The Local Spot, Inc., Geoffery Reid, Harry O’s Steakhouse,
LLC, HTDG, LLC, and Timothy Stephen Smith (“Plaintiffs”). Plaintiffs The Local Spot and
Geoffery Reid originally filed suit in this Court on May 18, 2020, naming as official capacity
defendants William B. Lee, Governor of the State of Tennessee; Herbert H. Slatery, III, Attorney
General and Reporter of Tennessee; John Cooper, Mayor of Metropolitan Nashville and Davidson
County; and Michael C. Caldwell, Chief Medical Director of Health for Metropolitan Nashville
and Davidson County. (See Doc. No. 1). Subsequently, Plaintiffs filed an Amended Complaint and
a Second Amended Complaint adding Harry O’s Steakhouse, LLC, HTDG, LLC, and Timothy
organization, as defined in 26 U.S.C. § 501(c)(3), that has as a component of its mission the support
of programs that directly improve the health and well-being of children.
25
Health Director Order 9 Amendment 1: Phase 2 with Modifications: Reopening, available at
9a.aspx.
26
Plaintiffs are Limited Service Restaurant (“LSR”) licensees and thus impacted by Order 9.
{N0355692.1} 10

Stephen Smith as Plaintiffs and also naming new Defendants sued in their individual capacities—
Dr. Michael Caldwell and Metropolitan Beer Permit Board (“Beer Board”) member Kia Jarmon.27
Plaintiffs challenge several of the COVID-19-related orders issued by Governor Lee,
Mayor Cooper, and Chief Medical Director Caldwell alleging that these orders deprived Plaintiffs
of their fundamental rights and civil liberties. With regard to the orders of the Metro Defendants,
Plaintiffs challenge Orders 1, 1A, 2, 3, 5, 6A, 6B & 7 as amended, as well as Order 9. (Doc. No.
60 at ¶¶ 463, 487).
Plaintiffs’ Second Amended Complaint seeks declaratory and injunctive relief, as well as
damages against Metro for alleged violations of: (1) the substantive due process clause of the 14th
Amendment; (2) the procedural due process clauses of the 5th and 14th Amendments; (3) the equal
protection clause of the 14th Amendment; (4) numerous Articles of the Tennessee Constitution,
and (5) numerous sections of Tennessee state law. For the reasons set forth herein, Metro is entitled
to dismissal of all claims against it.
LEGAL ANALYSIS
I. Applicable Legal Standards
A. Motion to dismiss standard
The standard for testing the sufficiency of the allegations in a complaint in a motion to
dismiss under Fed. R. Civ. P. 12(b)(6) was articulated by the United States Supreme Court in Bell
Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). A plaintiff must allege in a complaint “enough
facts to state a claim to relief that is plausible on its face.” Id. at 570. The “decision in Twombly
expounded the pleading standard for ‘all civil actions,’” including municipal liability claims
27
Kia Jarmon is also sued in her official capacity, and the Beer Board is named as a new Defendant.
{N0355692.1} 11

brought under Section 1983. See Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009) (quoting Fed. R. Civ.
P. 1).
As the Supreme Court reiterated in Iqbal, “[w]here a complaint pleads facts that are merely
consistent with a defendant’s liability, it stops short of the line between possibility and plausibility
of entitlement to relief.” 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557) (internal quotation
marks omitted). Further, the tenet that a court must accept as true all of the well-pleaded factual
allegations contained in a complaint is inapplicable to legal conclusions: “Threadbare recitals of
the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id.
(citations omitted). A court is not required to accept as true a “legal conclusion couched as a factual
allegation.” Id. (citations omitted). Determining whether a complaint states a claim for relief that
is plausible on its face is a context-specific exercise that requires a court to “draw in its judicial
experience and common sense.” Id.
B. Standard of review during a national health crisis
Although the United States of America is undoubtedly the land of liberty, it is an ordered
liberty, not an unrestrained liberty. See, e.g., Cox v. New Hampshire, 312 U.S. 569, 574 (1941).
This means that there are times when, in the interest of public safety, individual conduct may be
temporarily restricted to prevent “liberty itself [from being] lost in the excesses of unrestrained
abuses.” Id. Epidemics are, perhaps, one of the oldest known and least-questioned justifications
for such temporary restrictions. See Morgan’s La. & T. R. & S. S. Co. v. Bd. of Health of State of
La., 118 U.S. 455, 459 (1886); Gibbons v. Ogden, 22 U.S. 1 (1824).
The Supreme Court has held that “a community has the right to protect itself against an
epidemic of disease which threatens the safety of its members.” Jacobson v. Commonwealth of
Massachusetts, 197 U.S. 11, 27 (1905). A state or locality may exercise emergency police powers,
and a court’s review of temporary measures taken during such an emergency is not based on
{N0355692.1} 12

traditional constitutional review. Id. at 31. Rather, when considering constitutional challenges to
government actions taken in response to a public health crisis, the Court must apply the Supreme
Court’s framework established in Jacobson v. Massachusetts. 197 U.S. 11 (1905).
The Sixth Circuit recently reaffirmed that it is the Jacobson standard that applies to
challenges made to government action during the COVID-19 pandemic. See League of Indep.
Fitness Facilities & Trainers, Inc. v. Whitmer, No. 20-1581, 2020 WL 3468281, at *2 (6th Cir.
June 24, 2020) (referencing Jacobson and noting that application of the “century-old” Jacobson
standard “has been reaffirmed just this year by a chorus of judicial voices, including our own.”)
(citing Elim Romanian Pentecostal Church v. Pritzker, No. 20-1811, 2020 WL 2517093, at *1 (7th
Cir. May 16, 2020); Roberts v. Neace, 958 F.3d 409, 414 (6th Cir. 2020); In re Rutledge, 956 F.3d
1018, 1031-32 (8th Cir. 2020); In re Abbott, 956 F.3d 696, 704-05 (5th Cir. 2020); Geller v. de
Blasio, ––– F. Supp. 3d ––––, ––––, 2020 WL 2520711, at *3 (S.D.N.Y. May 18, 2020); McGhee
v. City of Flagstaff, No. CV-20-08081-PCT-GMS, 2020 WL 2308479, at *3 (D. Ariz. May 8,
2020); Givens v. Newsom, No. 2:20-cv-00852-JAM-CKD, ––– F. Supp. 3d ––––, ––––, 2020 WL
2307224, at *3 (E.D. Cal. May 8, 2020)).
In Jacobson, the plaintiff challenged a Cambridge, Massachusetts, order that, pursuant to
a Massachusetts’s statute, required all individuals, with some exceptions, to get a smallpox
vaccination, arguing the state invaded his liberty when it subjected him to a fine or punishment for
refusing to get the vaccination. 197 U.S. at 12-13, 26. The Supreme Court upheld the order finding
that all rights, “[e]ven liberty itself, the greatest of all rights,” are “subject to reasonable conditions
as may be deemed by the governing authority of the country essential to the safety, health, peace,
good order, and morals of the community.” Id. at 26-27. The Supreme Court thus found the
Constitution allowed the state and municipal governments to slow the spread of a disease by
{N0355692.1} 13

mandating vaccination—a forced bodily invasion—under threat of fine or imprisonment, without
violating the individual’s constitutional rights. Simply put, in responding to a public health crisis,
governments “may implement emergency measures that curtail constitutional rights so long as the
measures have at least some ‘real or substantial relation’ to the public health crisis and are not
‘beyond all question, a plain, palpable invasion of rights secured by the fundamental law.’” In re
Abbott, 954 F.3d 772, 784 (5th Cir. 2020) (quoting Jacobson, 197 U.S. at 31). This “settled rule
allows the state to restrict, for example, one’s right to peaceably assemble, to publicly worship, to
travel, and even to leave one’s home.” Id. at 778.
Additionally, during a public health crisis, a court should not undertake to determine the
most effective measures for protecting the public. Instead, such “judgment must be left to the
governing state authorities,” and courts should avoid “second-guess[ing] the wisdom or efficacy
of the measures.” In re Abbott, 954 F.3d at 785, 792. The court’s power is limited to asking whether
the governing authorities have taken action in “an arbitrary, unreasonable manner” or through
“arbitrary and oppressive regulations.” Id. at 784 (quoting Jacobson, 197 U.S. at 28, 38).
Turning to application of the Jacobson standard to Plaintiffs’ claims in this case, it is
beyond reasonable dispute that Metro’s challenged orders and the enforcement thereof bear a “real
or substantial relation” to combatting the spread of the highly contagious and frequently deadly
COVID-19 disease. As such, Plaintiffs cannot state a claim of a violation of their rights in this
case.
II. Plaintiffs’ Claims for Injunctive and/or Declaratory Relief Related to Orders No
Longer in Effect Are Moot
Plaintiffs challenge multiple Metro Orders that are no longer in effect. Thus, Plaintiffs’
request that this Court review the lawfulness of these superseded orders is moot.
{N0355692.1} 14

Mootness is a threshold issue that implicates the Court’s jurisdiction. See WJW-TV, Inc. v.
City of Cleveland, 878 F.2d 906, 909 (6th Cir. 1989) (“[M]ootness is a threshold jurisdictional
issue.” (citation omitted)); see also Cleveland Branch, NAACP v. City of Parma, 263 F.3d 513,
530 (6th Cir. 2001) (stating that “[a] federal court has no authority to render a decision upon moot
questions” (citing Church of Scientology v. United States, 506 U.S. 9, 12 (1992))). Article III of
the United States Constitution gives federal courts authority to adjudicate actual “Cases” or
“Controversies.” U.S. Const. art. III, § 2; see Ky. Right to Life, Inc. v. Terry, 108 F.3d 637, 644
(6th Cir. 1997). In plain terms, mootness means that if an actual, ongoing controversy ceases to
exist between the parties at any point in the litigation, the case cannot continue. Arizonans for
Official English v. Arizona, 520 U.S. 43, 67 (1997); Pettrey v. Enter. Title Agency, Inc., 584 F.3d
701, 703 (6th Cir. 2009); Carras v. Williams, 807 F.2d 1286, 1289 (6th Cir. 1986).
In determining whether a case has become moot, a court will examine any intervening
circumstances that have arisen during the case’s pendency and decide whether they “render the
court unable to grant the requested relief.” Carras, 807 F.2d at 1289 (citing S. Pac. Terminal Co.
v. Interstate Commerce Comm’n, 219 U.S. 498, 514 (1911)); see Envtl. Def. Fund, Inc. v. Gorsuch,
713 F.2d 802, 820 (D.C. Cir. 1983) (stating that “mootness issues arise most often when
circumstances change during the course of the litigation so that granting the requested relief will
not serve any purpose”). “[I]f events that occur subsequent to the filing of a lawsuit or an appeal
deprive the court of the ability to give meaningful relief, then the case is moot and must be
dismissed.” Ailor v. City of Maynardville, 368 F.3d 587, 596 (6th Cir. 2004) (internal citations
omitted).
Here, Plaintiffs seek declaratory and injunctive relief vis-à-vis portions of Metro Orders
that have been rescinded and/or superseded under the Phase Two with Modifications: Reopening
{N0355692.1} 15

Plan currently in place. Accordingly, Plaintiffs’ request for injunctive and/or declaratory relief in
that regard is moot.
III. Plaintiffs’ Second Amended Complaint Does Not State a Claim for Violation of Any
of Their Federal Constitutional Rights
A. Plaintiffs’ claims related to right to travel, freedom of association, freedom from

unreasonable seizure, and freedom to contract should be dismissed, as should their
vagueness challenge.
1. Right to travel
Plaintiffs are correct that the right to interstate travel has been treated by courts as a
fundamental right under the U.S. Constitution. And in the Sixth Circuit, even a right to intrastate
travel has been recognized. See Johnson v. City of Cincinnati, 310 F.3d 484, 498 (6th Cir. 2002)
(holding that “the Constitution protects a right to travel locally through public spaces and
roadways”). However, Plaintiffs provide no well-pleaded factual allegations that the Metro Orders
unreasonably infringed upon those rights.
Plaintiffs allege that they have “been effectively seized by the State of Tennessee and/or
Metro by being Ordered not to travel intrastate unless it is ‘essential,’” (Doc. No. 60 at ¶¶ 52, 85),
and that such orders prevented them from various travel activities. In support of these claims,
Plaintiffs allege the following:
53. Upon being restricted is his travel by Defendants’ Orders, Reid was prevented
on numerous occasions from driving to the park, a friend’s house, a particular store,
his own business (which was deemed non-essential), his other businesses (which
were deemed non-essential), to a restaurant, bar, movie theater and from just
traveling for the sake of traveling.
86. Upon being restricted is his travel by Defendants’ Orders, Smith was prevented
on numerous occasions from traveling to many locations closed by Defendants’
Order, a particular store, visit a friend or business associate, his own businesses
(which was deemed non-essential), to a restaurant, bar, and from just traveling for
the sake of traveling.
{N0355692.1} 16

(Id. at ¶¶ 53, 86). Plaintiffs further allege that the purported restrictions on their travel precluded
them from maintaining and developing relationships with others:
57. Upon being restricted in travel and socializing by Defendants’ Orders, Reid was
unable to maintain or continue to develop his familial, personal and business
relationships as face to face meetings were largely prevented and such had an
inherent deleterious effect on his relationships.
90. Upon being restricted in travel and socializing by Defendants’ Orders, Smith
was unable to maintain or continue to develop his familial, personal and business
relationships as face to face meetings were largely prevented and such had an
inherent deleterious effect on his relationships.
(Id. at ¶¶ 57, 90).
However, none of these allegations implicate Plaintiffs’ constitutional right to travel.
Plaintiffs do not allege that any of their travel activities involved interstate travel. 28 Nor do
Plaintiffs allege that Metro’s Orders prohibited their movement through, or access to, “public
spaces and roadways” for purposes of intrastate travel. Furthermore, to the extent that Plaintiffs’
allegations that they were “ordered” not to travel intrastate are directed to the Metro Defendants,
the plain language of the “Safer at Home” orders establishes that Metro placed no blanket
prohibition on travel, instead using the permissive language that Metro was “urging” people to
stay at home as much as possible to slow the spread of COVID-19:
Citizens of Nashville and Davidson County are urged to shelter at home, to be safer
at home. When individuals need to leave their homes or places of residence, they
should practice appropriate social distancing, staying six feet apart, and should
assume others are infectious, regardless of whether they exhibit symptoms.
28
The right to interstate travel encompasses three different components: (1) “the right of a citizen
of one State to enter and to leave another State,” (2) “the right to be treated as a welcome visitor
rather than an unfriendly alien when temporarily present in the second State,” and, (3) “for those
travelers who elect to become permanent residents, the right to be treated like other citizens of that
State.” Saenz v. Roe, 526 U.S. 489, 500 (1999). Since Plaintiffs Reid and Smith are “long-time
resident[s] of Tennessee,” (Doc. No. 60 at ¶¶ 30, 64), only the first component, the right to “enter
and leave another state,” is applicable, and Plaintiffs do not allege that Metro’s Orders restricted
their travel to or from another state.
{N0355692.1} 17

Health Director Order 3A: Safer at Home, Amended and Restated, supra note 11 (emphasis
added). Moreover, the accompanying explanation for the “Safer at Home” orders illustrates that
citizens could leave their homes and travel in order to:
Go to the grocery, convenience or warehouse store

Go to the pharmacy to pick up medications and other health care necessities
Go to medical appointments (check first with your health care provider)
Go to a restaurant for take-out, delivery or drive-thru
Care for a friend or family member
Take a walk, ride your bike, hike, jog and be outdoors for exercise — maintaining
at least 6 feet between you and others
Walk your pets and take them to the veterinarian, if necessary
Help someone to get necessary supplies
Receive deliveries from businesses permitted to deliver
See https://www.asafenashville.org/safer-at-home-order/.
As the plain language of and guidance for Metro’s “Safer at Home” orders make clear,
Plaintiffs were not restricted by Metro’s Orders from traveling to any of the locations listed in their
Second Amended Complaint, (see Doc. No. 60 at ¶¶ 53, 86), or from traveling in order to “maintain
or continue to develop” relationships with others, (id. at ¶¶ 57, 90).29 Plaintiffs thus fail to state a
claim that Metro’s Orders violated their right to travel because they have not alleged a single,
plausible instance in which Metro’s Orders prevented them from traveling. Rather, Plaintiffs allege
“facts that are merely consistent with [Metro’s] liability [and] stop[ ] short of the line between
possibility and plausibility of entitlement to relief.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550
U.S. at 557) (internal quotation marks omitted). Moreover, Plaintiffs’ allegations that they have
29
While some of the locations listed by Plaintiffs were temporarily closed pursuant to Metro’s
“Safer at Home” orders, Plaintiffs’ right to travel to those locations were not impeded by Metro’s
Orders. Similarly, while Metro’s Orders discouraged non-essential gatherings, Plaintiffs’ right to
travel to such gatherings were not impeded.
{N0355692.1} 18

been “effectively seized” by Defendants, (Doc. No. 60 at ¶¶ 52, 85), and that Defendants’
“wholesale approach of severely limiting citizens’ travel and business activities constitute the
unlawful deprivation of Plaintiffs’ inalienable and natural rights,” (id. at ¶ 11), are “legal
conclusion[s] couched as . . . factual allegation[s],” Iqbal, 556 U.S. at 678 (quoting Twombly, 550
U.S. at 555) (citations omitted), and do not contain “‘sufficient factual matter’ to render the legal
claim plausible,” Fritz v. Charter Twp. of Comstock, 592 F.3d 718, 722 (6th Cir. 2010) (quoting
Iqbal, 556 U.S. at 677).30
Given that Metro’s challenged orders did not prohibit travel but rather urged citizens to
stay at home as much as practicable in order to slow the spread of a highly infectious disease and
described a wide variety of appropriate travel activities, these orders bear a “real or substantial”
relation to preventing the growth of COVID-19 cases. Accordingly, Plaintiffs’ claims related to
any travel limitations being a violation of their constitutional rights should be dismissed.
2. Freedom of association
The Supreme Court has outlined two variations of the freedom of association: (1) the
“choice[ ] to enter into and maintain certain intimate human relationships” as a “fundamental
element of personal liberty” and (2) the right to associate to “engag[e] in those activities protected
by the First Amendment—speech, assembly, petition for the redress of grievances, and the exercise
of religion.” Roberts v. U.S. Jaycees, 468 U.S. 609, 617-18 (1984). In this case, Plaintiffs’ Second
Amended Complaint does not set forth any well-pleaded factual allegations that the Metro Orders
unreasonably infringed upon those rights.
30
Even if this Court construes Plaintiffs’ claims to be plausible, factual allegations, Plaintiffs still
fail to state a claim for which relief can be granted because they do not have a right to unrestricted
travel. Zemel v. Rusk, 381 U.S. 1, 15-16 (1965) (“The right to travel . . . does not mean that areas
ravaged by flood, fire or pestilence cannot be quarantined when it can be demonstrated that
unlimited travel to the area would directly and materially interfere with the safety and welfare of
the area or the Nation as a whole.”).
{N0355692.1} 19

Plaintiffs allege that “as a result of the Defendants’ Orders,” they have “not been allowed
to associate as [they] normally would,” (Doc. No. 60 at ¶¶ 54, 87), and have “not been able to
continue to develop [their] familial, personal and business relationships,” (id. at ¶¶ 55, 88).
Plaintiffs further allege that “[p]rior to Defendants’ Orders, [Plaintiffs] routinely visited and
socialized with family, friends and business associates and thereby developed a network of
individuals who supported [them] and elevated [their] quality of life.” (Id. at ¶¶ 56, 89).
Much like Plaintiffs’ allegations regarding their right to travel, these allegations do not
implicate Plaintiffs’ constitutional right to the freedom of association. Plaintiffs do not allege that
any of Metro’s Orders infringed upon their engagement in expressive activities.31 Nor do Plaintiffs
provide any facts explaining how Metro’s Orders allegedly infringe upon their maintenance of
intimate human relationships. While Metro’s “Safer at Home” orders discouraged non-essential
gatherings, Plaintiffs were at no time prohibited from visiting or socializing with their family,
friends, or business associates, albeit in small groups and at an appropriate social distance. Nor did
any Metro Order prevent Plaintiffs from associating with others via platforms such as social media,
telephone calls, or other means of communication. Much like their allegations regarding their right
to travel, Plaintiffs seem to simply take issue, as a general matter, with not feeling as if they could
31
Even if Plaintiffs had alleged that Metro’s Orders violated their right to associate for expressive
purposes, this right is not absolute. Roberts, 468 U.S. at 623 (“Infringements on that right may be
justified by regulations adopted to serve compelling state interests, unrelated to the suppression of
ideas, that cannot be achieved through means significantly less restrictive of associational
freedoms.”) (collecting cases). The Sixth Circuit evaluates such claims by first determining
“whether a group is entitled to protection,” then asking “whether the government action in question
‘significantly burden[s]’ the group’s expression,” and finally weighing “the government’s interest
in any restriction . . . against plaintiff’s right of expressive association.” Miller v. City of Cincinnati,
622 F.3d 524, 538 (6th Cir. 2010) (quoting Boy Scouts of Am. v. Dale, 530 U.S. 640, 653 (2000)).
Here, Plaintiffs have not alleged that they are members of a group that is entitled to protection, nor
do they allege that any expression from such a group has been significantly burdened by Metro’s
Orders.
{N0355692.1} 20

come and go however and wherever they pleased, without restriction, during the pandemic. This
is not enough to state a claim for violation of Plaintiffs’ freedom of association rights, and any
such claim should be dismissed pursuant to the mandates of Twombly and Iqbal.
3. Freedom from unreasonable seizure
Plaintiffs also claim that the Orders “effectively seized citizens and their businesses as it
severely limited their activities and travel and did so unreasonably.” (Doc. No. 60 at ¶ 429). Any
“unreasonable seizure” claim fails for a multitude of reasons.
First, the Metro Orders did not “seize” Plaintiffs’ property. Property is seized for Fourth
Amendment purposes “when ‘there is some meaningful interference with an individual’s
possessory interests in that property.’” Soldal v. Cook Cty., Ill., 506 U.S. 56, 61 (1992) (quoting
United States v. Jacobsen, 466 U.S. 109, 113 (1984)). While the Metro Orders challenged here
regulated how Plaintiffs could use their property, they did not dispossess them of their property;
thus the Metro Orders cannot constitute a seizure. See Enclave Arlington Assocs. Ltd. P’ship v.
City of Arlington, Texas, 401 F. App’x 936, 939 (5th Cir. 2010).
Further, the facts as alleged here are inapposite to stating a Fourth Amendment
unreasonable seizure claim. In the Fourth Amendment context, a person is seized when an officer,
“by means of physical force or show of authority, terminates or restrains [the person’s] movement
through means intentionally applied.” United States v. Jones, 673 F.3d 497, 501 (6th Cir. 2012).
Here, Plaintiffs do not allege that they were not free to leave their homes, only that they could not
do so wholly unrestricted. And Plaintiffs, while taking issue with Metro Orders urging them to
stay home, certainly do not allege that any Metro officer “by means of physical force or authority
restricted [their] movement.” Finally, as set forth in detail throughout this memorandum, even if a
purported “seizure” occurred, it was reasonable in light of the need to slow the spread of a deadly
virus. As such, Plaintiffs’ “unreasonable seizure” claims should be dismissed.

{N0355692.1} 21

4. Right to contract
Plaintiffs next allege that the Metro Orders have violated their “right to contract.”
Specifically, Plaintiffs allege that they have a “fundamental right under the U.S. Constitution and
its Amendments to enter into contracts and operate [their] business under such contracts free from
undue government interference” and cite to U.S. Tr. Co. of New York v. New Jersey, 431 U.S. 1,
22 (1977), in support of this proposition. (Doc. No. 60 at ¶ 374). But as the Supreme Court
recognized in the very case cited by Plaintiffs, the prohibition against “impairment” in the
Contracts Clause of the Constitution is not absolute. “States must possess broad power to adopt
general regulatory measures without being concerned that private contracts will be impaired, or
even destroyed, as a result.” U.S. Tr. Co. of New York, 431 U.S. at 22.
As the State Defendants in this action pointed out in their previously filed memorandum
of law in support of their motion to dismiss, the Supreme Court has stated:
There is no absolute freedom to do as one wills or to contract as one chooses. The

guaranty of liberty does not withdraw from legislative supervision that wide
department of activity which consists of the making of contracts, or deny to
government the power to provide restrictive safeguards. Liberty implies the
absence of arbitrary restraint, not immunity from reasonable regulations and
prohibitions imposed in the interests of the community. Chicago, B.& Q.R. Co. v.
McGuire, 219 U.S. 549, 567 (1911) (citations omitted). Thus, the right to make
contracts is subject to the “essential authority of [state] government to maintain
peace and security, and to enact laws for the promotion of the health, safety, morals,
and welfare of those subject to this jurisdiction.” Id. at 568. And as long as there is
a “reasonable relation to an object within the governmental authority, the exercise
of [such] legislative discretion is not subject to judicial review.” Id. at 569.
(Doc. No. 11 at 17) (citation in original). Here, the Metro Orders undoubtedly had a “reasonable
relation” to the protection of the health and safety of Metro citizens from a global pandemic.
In addition, Plaintiffs provide no well-pleaded factual allegations as to what contracts were
allegedly impacted by the Metro Orders or how the Metro Orders themselves infringed upon their
right to contract. Instead, Plaintiffs simply make the overarching and conclusory allegations that
{N0355692.1} 22

they had to breach “several contracts.” (Doc. No. 60 at ¶ 433). While it is true that the interests
protected by procedural due process can include the liberty interest of an individual to enter into
contracts, in the absence of well-pleaded factual allegations illustrating specific contractual
relationships that were impaired through government action, and without the process required by
law, a plaintiff cannot state a claim of a constitutional violation related to the “right to contract.”
See, e.g., Anderson v. Dickson, 715 F. App’x 481, 486 (6th Cir. 2017). Here, the Second Amended
Complaint simply recites case law regarding the right to enter into contracts in a general sense, but
includes no factual allegations as to any actual impairment of Plaintiffs’ right to enter into
contracts. Thus, Plaintiffs have failed to state a claim for violation of the right to contract, and any
such claim should be dismissed.
5. Vagueness challenge
“[T]he void-for-vagueness doctrine requires that a penal statute define the criminal offense
with sufficient definiteness that ordinary people can understand what conduct is prohibited and in
a manner that does not encourage arbitrary and discriminatory enforcement.” Kolender v. Lawson,
461 U.S. 352, 357 (1983). “[T]he more important aspect of the vagueness doctrine is . . . ‘the
requirement that a legislature establish minimal guidelines to govern law enforcement.’” Id. at 358
(quoting Smith v. Goguen, 415 U.S. 566, 574 (1974)). Where an act provides objective standards,
it will not be violated on its face. Gonzales v. Carhart, 550 U.S. 124, 150 (2007).
Plaintiff allege that “[t]he directives in Health Director Order 1 were unduly vague as an
ordinary person could not discern whether he or she was in compliance with the order.” (Doc. No.
60 at ¶ 176). However, they fail to identify specifically what portions of Order 1 are purportedly
vague. As for Order 3, Plaintiffs claim, “The description of ‘essential business’ and ‘non-essential
business’ found in Health Director Order 3 was unduly vague as an ordinary person could not
discern whether he or she was in compliance with the order.” (Id. at ¶ 188). Contrary to Plaintiffs’
{N0355692.1} 23

conclusory assertion, Sections 3 and 4 of Order 3 set out in detail the definition of an essential
business and examples thereof. And Section 2 of Order 3 specifically defined a non-essential
business as a business that did not perform one of the extensively defined essential services.
Plaintiffs have failed to identify any part of these definitions that “vests virtually complete
discretion in the hands of the police.” Kolender, 461 U.S. at 358. Accordingly, Plaintiffs’ broad
claim that portions of Order 1 and Order 3 are unconstitutionally vague should be dismissed.
B. Plaintiffs do not state a First Amendment retaliation claim related to Metro’s Orders.
Although Plaintiffs do not bring a standalone First Amendment retaliation claim in any
Count in the Second Amended Complaint, they do make passing reference to retaliation a few
times throughout their 73-page Second Amended Complaint. For example, in the Count setting
forth their substantive due process claims, Plaintiffs allege:
383. Defendants’ actions as set forth herein constitute unlawful retaliation against
Plaintiffs for petitioning the government for redress or exercising their First
Amendment right to express opposition to government actions or officials.
(Doc. No. 60 at ¶ 383). And in their request for injunctive relief, Plaintiffs aver:
472. Upon a motion and a hearing, Plaintiffs seek a temporary restraining order
preventing Metro from continuing to enforce Health Director Orders 4 and 6, 6A,
6B & 7, including the three (3) tickets pending against Kid Rock’s and Honky Tonk
Central, as Metro has failed to enforce these orders equitably, has discriminated
and/or retaliated against Plaintiffs, has exercised selective enforcement and/or are
specifically targeted restaurant and bars and/or Plaintiffs, which is a violation of the
Plaintiffs’ fundamental rights, the Equal Protection Clause and/or the Due Process
Clause of the 14th Amendment of the U.S. Constitution.
473. Upon a motion and a hearing, Plaintiffs seek a temporary restraining order
preventing the Metro Beer Permit Board from proceeding forward with the citation
for suspension issued against Kid Rock’s as Plaintiffs were discriminated against
and/or retaliated against by Director Caldwell and/or the Board failed to provide
due process to Kid Rock’s as Defendant Jarmon is blatantly biased and a fair
hearing is not possible which comports with the Equal Protection Clause and the
Due Process Clause of the 14th Amendment to the U.S. Constitution or otherwise
is in compliance with the U.S. Constitution or applicable laws.
{N0355692.1} 24

(Doc. No. 60 at ¶¶ 472, 473). To the extent that any First Amendment retaliation claims (or any of
the actual Counts of the Second Amended Complaint) relate to the citations listed in paragraphs
472 and 473, this Court has invoked the Younger abstention doctrine as to those claims. Therefore,
those claims are not before the Court for resolution at this time. (See Doc. No. 59 at 6-7).
Furthermore, any First Amendment “retaliation” claim based on other actions is wholly
conclusory and fails to satisfy the Twombly and Iqbal standards. The basic elements of a First
Amendment retaliation claim are that: (1) plaintiff engaged in constitutionally protected speech;
(2) adverse action was taken against plaintiff that would likely chill an ordinary citizen from
speaking; and (3) the adverse action was motivated, in whole or in part, by the plaintiff’s protected
speech. See Day v. Office of the Racing Comm’n, 702 F.3d 286, 294 (6th Cir. 2012). Here, aside
from the citations that are not currently a part of this lawsuit, Plaintiffs fail to identify what actions
Metro took against them as a result of their alleged exercise of their First Amendment rights.
Plaintiffs do not allege that any particular Metro Orders were issued in “retaliation” for any actions
on the part of Plaintiffs, or that any other actions were taken to “punish” Plaintiffs for speaking
out. Likewise, Plaintiffs do not provide any well-pleaded factual allegations as to how their speech
was “chilled” by Metro. Nor do they even allege in the Second Amended Complaint that any
actions taken by Metro were motivated by Plaintiffs’ speech. Indeed, the words, “chill” and
“motivated” are nowhere to be found in the Second Amended Complaint. Thus, to the extent
Plaintiffs seek to bring a First Amendment retaliation claim against Metro based on any actions
other than the issuance of citations,32 such claims are subject to dismissal.
32
Metro submits that the Second Amended Complaint also fails to provide any well-pleaded
factual allegations to support the notion that these citations were issued in retaliation for any First
Amendment protected speech, but reserves the right to present that argument when and if claims
related to those citations are back before this Court.
{N0355692.1} 25

Having addressed matters that are merely mentioned in Plaintiffs’ Second Amended
Complaint but not the subject of their own Counts, Metro now turns to the distinct Counts of the
Second Amended Complaint and the purported violations of Plaintiffs’ rights alleged therein:
C. Plaintiffs have no substantive due process right to operate a business in whatever

manner they choose.
The Fourteenth Amendment provides in pertinent part that “[n]o State shall . . . deprive
any person of life, liberty, or property, without due process of law.” The “substantive component
of the due process clause protects those rights that are ‘fundamental.’” Palko v. State of
Connecticut, 302 U.S. 319, 325 (1937) (emphasis added), overruled on other grounds by Benton
v. Maryland, 395 U.S. 784, 793-94 (1969). “As a general matter, [courts have] always been
reluctant to expand the concept of substantive due process[.]” Dist. Attorney’s Office for Third
Judicial Dist. v. Osborne, 557 U.S. 52, 72 (2009) (citations omitted).
The Supreme Court has repeatedly held that the “liberties” protected by substantive due
process do not include economic liberties. See, e.g., Lincoln Fed. Labor Union v. Northwestern
Iron & Metal Co., 335 U.S. 525, 536 (1949); Stop the Beach Renourishment, Inc. v. Fla. Dep’t of
Envtl. Prot., 560 U.S. 702, 721 (2010); see also Helm v. Liem, 523 F. App’x 643, 645 (11th Cir.
2013) (“[T]he right to work in a specific profession is not a fundamental right.”); Henry v.
DeSantis, 2020 WL 2479447, at *7 (S.D. Fla. May 14, 2020). As such, and because once again
the Metro Orders satisfy the Jacobson standard, Plaintiffs’ substantive due process claims related
to the impact of the Metro Orders on their businesses are likely to fail and do not support issuance
of a TRO. (See Doc. No. 59).
Furthermore, the challenged Metro Orders did not completely shutter Plaintiffs’
businesses. For example, Order 9 states that LSRs “may continue to provide curbside or off-
premise delivery of prepared food or beverages.” In fact, these types of delivery and take-out
{N0355692.1} 26

services that Plaintiffs are permitted to provide under Order 9 were designated essential under the
guidance provided for the “Safer at Home” orders. See https://www.asafenashville.org/safer-at-
home-order/. While Plaintiffs’ decisions to forego the opportunity to offer carryout/delivery food
services during the pandemic may be understandable because of concerns over whether it would
be profitable, their voluntary decision not to alter their business models in light of the Metro Orders
does not implicate substantive due process. As such, Plaintiffs’ substantive due process claims
related to the Metro Orders’ impact on their businesses must be dismissed.
D. The Court should dismiss Plaintiffs’ procedural due process claim.
1. Plaintiffs have not alleged that their state law remedies are inadequate
Plaintiffs characterize their procedural due process claim as, in essence, a “taking” of
property without due process of law. (See Doc. No. 60 at ¶ 391). Nowhere in their Second
Amended Complaint, however, do Plaintiffs allege that their state law remedies for redressing this
alleged taking are inadequate. Thus, this claim should be dismissed.
It is well-established that a takings claim is not ripe for adjudication in federal court unless
a plaintiff first pursues his available remedies in state court. Braun v. Ann Arbor Charter Tp., 519
F.3d 564, 569 (6th Cir. 2008) (citing Williamson Cnty. Reg’l Planning Comm’n v. Hamilton Bank
of Johnson City, 473 U.S. 172, 193, 195 (1985)). Here, by their own characterization, Plaintiffs’
procedural due process claim is grounded in the notion that Defendants engaged in an unlawful
“taking” of Plaintiffs’ business operations. Plaintiffs do not allege that they pursued available state
law remedies or that any such remedies would be inadequate to compensate them. Therefore,
Plaintiffs’ procedural due process claim is not ripe and is subject to dismissal.
2. Metro did not violate Plaintiffs’ due process rights
Even if Plaintiffs’ due process claims were ripe, they are subject to dismissal on the merits.
To establish a procedural due process claim, a plaintiff must show that: “(1) he had a life, liberty,
{N0355692.1} 27

or property interest protected by the Due Process Clause; (2) he was deprived of this protected
interest; and (3) the state did not afford him adequate procedural rights prior to depriving him of
the property interest.” Women’s Med. Proof’s Corp. v. Baird, 438 F.3d 595, 611 (6th Cir. 2006).
Property rights are created and defined by state law. See Thomas v. Cohen, 304 F.3d 563,
576 (6th Cir. 2002). In order to have a property interest in a benefit, a person must have more than
a desire for it or unilateral expectation of it; he or she must have a “legitimate claim of entitlement
to it.” R.S.W.W., Inc. v. City of Keego Harbor, 397 F.3d 427, 435 (6th Cir. 2005) (citing Board of
Regents v. Roth, 408 U.S. 564, 577 (1972)). While the assets of a business (including its good will)
are property, and any state taking of those assets can be a “deprivation” under the Fourteenth
Amendment, business in the sense of the activity of doing business or the activity of making a
profit is not property in the ordinary sense. Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ.
Expense Bd., 527 U.S. 666, 675 (1999) (emphasis added). Here, Plaintiffs were LSRs that could
have continued to operate as delivery/take-out restaurants pursuant to the challenged Metro Orders.
Plaintiffs chose not to do so because that would not be profitable, not because they were prohibited
from doing so. Plaintiffs do not have a property interest in operating their business in their
preferred or even most profitable manner. As such, their procedural due process claims fail.
And even if Plaintiffs’ “takings” claims were ripe, and even if Plaintiffs had a property
interest in running their business in their preferred manner, Plaintiffs’ procedural due process
claims are nonetheless subject to dismissal. First, the restrictions on LSRs meets the Jacobson
standard for permissible government restrictions during a national health crisis in that limiting
group gatherings where people are in close proximity to one another bears a substantial relation to
stopping the spread of a highly contagious disease that is easily transmitted through human contact.
Second, any “process” due Plaintiffs did not require either a pre-deprivation or post-deprivation
{N0355692.1} 28

hearing because the Metro Orders were generally applicable orders as opposed to orders
specifically directed at, or enforced against, Plaintiffs. See Neinast v. Bd. of Trustees of Columbus
Metro. Library, 346 F.3d 585, 596-97 (6th Cir. 2003) (“Governmental determinations of a general
nature that affect all equally do not give rise to a due process right to be heard.”).
The Supreme Court has long observed that the rights of an individual affected by a law of
general applicability “are protected in the only way that they can be in a complex society, by [the
affected individual’s] power, immediate or remote, over those who make the rule.” Bi-Metallic
Inv. Co. v. State Bd. of Equalization, 239 U.S. 441, 445 (1915); see also United States v. Florida
East Coast Ry., 410 U.S. 224 (1973) (determining that no due process right to hearing was
triggered by agency action where it was applicable “across the board to all” common carriers and
“no effort was made to single out any particular railroad for special consideration based on its own
peculiar circumstances.”). The fact that an agency’s order “may in its effects have been thought
more disadvantageous by some . . . than by others does not change its generalized nature.” Id. at
246.
Here, the Metro Orders did not violate Plaintiffs’ due process rights because these orders
were generally applicable orders affecting thousands of people and businesses, and not orders
targeting an individual or single business. See Smith v. Jefferson Cty. Bd. of Sch. Comm’rs, 641
F.3d 197, 216 (6th Cir. 2011); Neinast, 346 F.3d at 596-97. Accordingly, Plaintiffs’ constitutional
right to procedural due process was not violated.
E. Plaintiffs cannot state an equal protection claim.
To the extent that Plaintiffs insinuate in their Second Amended Complaint that they have
been targeted for enforcement of Metro Orders because of their race, that claim fails. Plaintiffs
stop shy of an overt allegation of race discrimination on the part of these Metro Defendants, stating:
{N0355692.1} 29

405. In addition, or in the alternative, Plaintiffs would aver that Metro’s intentional
targeting of restaurant and bars and/or selective enforcement33 of the Defendants’
orders vis-à-vis the thousands of people who have attended protests and marches is
unlawful discrimination and is a violation of the Equal Protection Clause of the
U.S. Constitution.
(Doc. No. 60 at ¶ 405). But, even assuming that Plaintiffs are attempting to bring an equal
protection claim based on purported race discrimination, Plaintiffs provide no well-pleaded factual
allegations to support the notion that Metro treated people differently based on race. While
Plaintiffs point to the purported lack of citations given to protesters at “Black Lives Matter” and
other protests around Nashville, they do not actually allege that all of those protesters were African
American or, at least, not Caucasian like Plaintiffs. Similarly, Plaintiffs do not allege that any of
the Metro Orders impacted only Caucasian-run businesses. The lack of well-pleaded factual
allegations showing that the Metro Defendants treated Plaintiffs differently based on their race
mandates dismissal of any “race-based” equal protection claim, to the extent such a claim is even
pleaded in the Second Amended Complaint.
As for a “class of one” equal protection claim, that claim is subject to dismissal as well. In
a “class of one” equal protection claim, “the plaintiff [does] not allege membership in a class or
group” but rather simply “alleges that she has been intentionally treated differently from others
similarly situated and that there is no rational basis for the difference in treatment.” Village of
Willowbrook v. Olech, 528 U.S. 562, 564 (2000). A class of one plaintiff must allege that he and
other individuals who were treated differently were similarly situated in all material respects.”
Taylor Acquisitions, LLC v. City of Taylor, 313 F. App’x 826, 836 (6th Cir. 2009) (citing
TriHealth, Inc. v. Bd. of Comm’rs of Hamilton Cty., Ohio, 430 F.3d 783, 790 (6th Cir. 2005)).
33
Again, to the extent this claim of “selective enforcement” related to citations issued to Plaintiffs
but not to others, this Court has abstained from addressing any such claims at this time. (See Doc.
No. 59).
{N0355692.1} 30

“Moreover, courts should enforce the similarly-situated requirement with particular strictness
when the plaintiff invokes the class-of-one theory rather than the more settled cognizable-group
theory” in order to minimize the risk that, “unless carefully circumscribed, the concept of a class-
of-one equal protection claim could effectively provide a federal cause of action for review of
almost every executive and administrative decision made by state actors.” JDC Mgmt., LLC v.
Reich, 644 F. Supp. 2d 905, 926-28 (W.D. Mich. 2009) (citations omitted).
Here, whether Plaintiffs seek to compare themselves to “essential businesses” or protestors,
they point to no evidence to show that they are similarly situated to these comparators in all
relevant respects.
First, Plaintiffs compare themselves to “essential businesses” such as government agencies
and offices. But Plaintiffs do not explain how bars and/or live music venues, whose very business
is to encourage as many people as possible to attend its entertainment events at one time, and which
cannot require masks to be worn at all times given that masks must be removed for eating and
drinking, is the same as any government agency that presumably has multiple offices and/or office
locations and is engaged in keeping our government functioning during a time of crisis.
Additionally, Plaintiffs fail to identify one other actually similarly situated individual or
business—namely a live music venue or LSR licensee—who was treated less favorably than were
Plaintiffs. Thus, their equal protection claim fails in this regard.
As for Plaintiffs’ comparison of themselves to protesters who have gathered in outdoor
venues, where masks can always be worn, to exercise their First Amendment rights, this
comparison also fails to satisfy the elements of a “class of one” claim. As a threshold matter, as
set forth herein, Plaintiffs simply do not have a constitutional right to run their businesses—which
are part of a highly regulated industry—in the manner that they choose. Conversely, it is beyond
{N0355692.1} 31

debate that citizens have a fundamental First Amendment right to gather in groups and protest.
Simply put, bar owners and protesters are not similarly situated in all relevant respects.
And perhaps even more importantly, the reality is that there has been nationwide
recognition that bars are, as Dr. Anthony Fauci, Director of the National Institute of Allergy and
Infectious Diseases (“NIAID”) and a member of President Trump’s White House Coronavirus
Task Force, stated, a “perfect setup for the spread of infection.” See
https://www.youtube.com/watch?v=_yWjw-4knKo; see also https://www.usatoday.com/in-
depth/graphics/2020/07/16/why-bars-hotspots-covid-19-transmission/5389988002/;
https://www.usnews.com/news/business/articles/2020-07-02/closing-bars-to-stop-coronavirus-
spread-is-backed-by-science; https://www.washingtonpost.com/video/national/why-your-local-
bar-might-be-a-coronavirus-hotspot/2020/07/07/efb97a9c-5958-4f35-8949-
bdd33330214d_video.html. Indeed, White House advisor and leading COVID-19 expert Dr.
Deborah Birx has specifically advocated for the closing of Tennessee bars in an effort to slow the
spread of the deadly virus.
https://www.tennessean.com/story/news/local/coronavirus/2020/07/27/dr-deborah-birx-white-
house-recommendation-tennessee-bars-restaurants/5515826002/.
Meanwhile, a study of Black Lives Matter protests that occurred from May 25, 2020,
through June 20, 2020, in 315 of the largest U.S. cities found “no evidence that urban protests
reignited COVID-19 case growth” and concluded that “predictions of broad negative public health
consequences of Black Lives Matter protests were far too narrowly conceived.” See June 2020
National Bureau of Economic Research, available at https://www.nber.org/papers/w27408.pdf.
Accordingly, because protests have not been linked to spikes in COVID-19 positive rates in the
manner that bars have, even if this Court deems Plaintiffs to be similarly situated to protesters,
{N0355692.1} 32

Metro’s allegedly different treatment of Plaintiffs has a rational basis and certainly bears a “real
or substantial relation” to controlling the COVID-19 pandemic.
Because Plaintiffs have identified no similarly situated comparators who were treated more
favorably than Plaintiffs, and because the challenged Metro Orders have a rational relationship to
slowing the spread of COVID-19, Plaintiffs cannot maintain their “class of one” equal protection
claim.
IV. Plaintiffs Have No Private Right of Action Under the Tennessee Constitution or the
Cited Statutes
A. Plaintiffs’ claims for violation of the Tennessee Constitution should be dismissed.
It is well-settled that there is no private right of action for damages for violation of the
Tennessee Constitution. See Cline v. Rogers, 87 F.3d 176, 179-180 (6th Cir. 1996); Bowden Bldg.
Corp. v. Tenn. Real Estate Comm’n, 15 S.W.3d 434, 446 (Tenn. Ct. App. 1999). Multiple courts
have determined that, based upon the rationale of those cases addressing the unavailability of
damages under the Tennessee Constitution, there is likewise no private right of action for
violations of the Tennessee Constitution in cases where injunctive and/or declaratory relief is
sought. See Hayes v. Elkington Prop. Mgmt., No. 219-CV-02312-JTF-JAY, 2019 WL 8016518, at
*12 (W.D. Tenn. Dec. 20, 2019), report and recommendation adopted, No. 219-CV-02312-JTF-
JAY, 2020 WL 504673 (W.D. Tenn. Jan. 31, 2020); Annette v. Haslam, No. 3:18-CV-12992019,
WL 4744851, at *7 (M.D. Tenn. Sept. 30, 2019). Accordingly, because Plaintiffs have no private
right of action under the Tennessee Constitution, Count IV of their Second Amended Complaint
must be dismissed.34
34
To the extent that this Court deems the question of whether the Tennessee Constitution allows
for a private right of action for injunctive and/or declaratory relief (as opposed to damages) to be
an unsettled issue of state law, the Metro Defendants submit that the Court should decline
supplemental jurisdiction over this question and allow Tennessee courts to decide this novel issue
of state law. See 28 U.S.C. § 1327(1); Beechy v. Cent. Mich. Dist. Health Dep’t, 274 F. App’x 481,
{N0355692.1} 33

B. Plaintiffs’ claims that Metro violated Tennessee statutes should be dismissed.
1. Plaintiffs have no private right of action under the cited statutes
In determining whether a private right of action exists under a statute, courts “begin by
examining the language of the statute.” Premium Finance Corp. of America v. Crump Ins. Services
of Memphis, Inc., 978 S.W.2d 91, 93 (Tenn. 1998). And Tennessee law specifically holds that it is
the language of the statute that controls the existence of a private right of action:
§ 1-3-119. Private rights of action; creation
(a) In order for legislation enacted by the general assembly to create or confer a
private right of action, the legislation must contain express language creating or
conferring the right.
(b) In the absence of the express language required by subsection (a), no court of
this state, licensing board or administrative agency shall construe or interpret a
statute to impliedly create or confer a private right of action except as otherwise
provided in this section.
(c) Nothing in this section shall be construed in any way to impair the ability of a
court to:
(1) Recognize a private right of action that was recognized before July 1, 2012, by
the courts of this state as arising under a statute, unless the statute is amended after
July 1, 2012, to expressly bar the private right of action;
(2) Create or confer a private right of action in the absence of a controlling statute
on each cause of action contained in the complaint if such action is based on the
common law;
(3) Utilize the doctrine of negligence per se; or
(4) Recognize a private right of action commenced by a state or local governmental

entity to collect any fees owed for a governmental service or to recover such fees
482 (6th Cir. 2008) (affirming district court’s decision not to exercise supplemental jurisdiction
over an issue of state law that the state courts should resolve without federal interference); Beadle
v. Memphis City Sch., No. 07-2718-STA-tmp, 2008 U.S. Dist. LEXIS 93492, at *15-*16 (W.D.
Tenn. Nov. 18, 2008) (declining supplementary jurisdiction where the scope of non-employer
liability under Tennessee law was unclear). For these same reasons, should the Court find that the
issue of whether the Tennessee statutes cited in Count V of the Second Amended Complaint may
create a private right of action is unsettled, the Metro Defendants submit that it would be proper
to decline jurisdiction over Count V as well.
{N0355692.1} 34

from a party that is obligated to bill and collect fees owed others for a governmental
service.
(d) Nothing in this section shall be construed in any way to impair the ability of a
state or local regulatory or licensing agency to enforce rules pursuant to the
Uniform Administrative Procedures Act, compiled in title 4, chapter 5, if such rules
were duly enacted through the rulemaking authority granted to any such agency by
statute.
TENN. CODE ANN. § 1-3-119 (West).
Here, Plaintiffs’ Second Amended Complaint cites to several Tennessee statutes that they
allege were violated by the Metro Orders, specifically Tennessee Code Ann. §§ 58-2-107, 58-2-
118(a), 68-1-201(1), 68-2-608, and 68-2-609. (See Doc. No. 60 at ¶¶ 441-448). But no cause of
action is expressly provided in any of these provisions. As such, Plaintiffs’ claims to relief under
these statutes should be dismissed.
2. Even if a private right of action exists, the Metro Defendants did not violate
Tennessee law
a. State and local law governing civil emergencies
Title 58, Chapter 2, of the Tennessee Code of Laws, which is titled “Disasters,
Emergencies, and Civil Defense,” outlines the emergency management powers of both the state
and political subdivisions of Tennessee. See TENN. CODE ANN. § 58-2-101 et seq. The legislative
intent of this Chapter includes reducing the vulnerability of the people and property of Tennessee
to an array of emergencies that “threaten the life, health, and safety” of its citizens, and concludes
with a declaration from the General Assembly “that this chapter fulfills a compelling state
interest.” § 58-2-102.
Pursuant to authority granted by Tennessee Code Ann. § 58-8-104(a), the Mayor of a
Metropolitan Government may declare a State of Civil Emergency consistent with and governed
by Tennessee Code Ann. § 58-2-110(3)(A)(v). Under Tennessee law, a “civil emergency” is
defined, in relevant part, as:
{N0355692.1} 35

Any natural disaster or man-made calamity, including, but not limited to, flood,
conflagration, cyclone, tornado, earthquake or explosion within the geographic
limits of a municipality resulting in the death or injury of persons, or the destruction
of property to such an extent that extraordinary measures must be taken to protect
the public health, safety and welfare.
§ 38-9-101(2)(B) (emphases added). The Metropolitan Code of Ordinances mirrors this
definition.35 By the plain language of these sources of authority, Mayor Cooper’s Executive Order
006 declaring a State of Civil Emergency related to COVID-19 was issued pursuant to state and
local law, as the present COVID-19 pandemic qualifies as a natural disaster for the Metropolitan
Government such that extraordinary measures must be taken to protect the public.
Under both state and local law, a proclamation of civil emergency grants Metro’s mayor
specific powers relating to civil emergency situations. As it pertains to this case, such powers
include the authority to order the closure of all establishments where beer or alcoholic beverages
are served, to order the closure of all private clubs where consumption of beer or alcoholic
beverages is permitted, and to issue “such other orders as are necessary for the protection of life
and property.” TENN. CODE ANN. § 38-9-104(2), (3), (9); Metropolitan Code of Ordinances §
2.08.080(B), (C), (I). Furthermore, state law grants Metro “the power and authority to waive the
procedures and formalities otherwise required of the political subdivision by law pertaining to
[p]erformance of public work and taking whatever prudent action is necessary to ensure the
health, safety, and welfare of the community.” TENN. CODE ANN. § 58-2-110(3)(A)(v)(a)
(emphasis added). In sum, Mayor Cooper is afforded broad authority and discretion during a civil
35
“Any natural disaster or man-made calamity, including but not limited to flood, conflagration,
cyclone, tornado, earthquake or explosion within the metropolitan government area, resulting in
the death or injury of persons, or the destruction of property, to such an extent that extraordinary
measures must be taken to protect the public health, safety and welfare.” Metropolitan Code of
Ordinances § 2.08.050(2) (emphases added). The Metropolitan Charter and Metropolitan Code of
Ordinances are available in their entirety at the following website:
https://library.municode.com/index.aspx?clientId=14214.
{N0355692.1} 36

emergency that do not require his deference to the courses of action preferred by Plaintiff. (See
Doc. No. 60 at ¶ 10).36
b. State and local law relating to Metro’s Health Department
Pursuant to Metro’s Charter, the Metropolitan Board of Health, through its Chief Medical
Director, exercises all the administrative functions of the Metropolitan Government pertaining to
the physical and mental health of the people, including the investigation and control of
communicable diseases. Metropolitan Charter § 10.103. Metro’s Code of Ordinances further
provides:
[T]he department of health may take such action as may become necessary to assure
the maintenance of public health, the prevention of disease, or the safety of the
metropolitan government and its residents. The chief medical director, subject to
the directions of the board of health, may establish procedures to be followed during
an emergency declared by the board of health to insure the continuation of essential
public health services and enforcement.
§ 2.36.020(C). Sections 2.36.030 and 2.36.040 also indicate that this chapter is to be construed for
consistency with federal and state law and is to be “liberally construed for the protection of the
health and safety of the people of the metropolitan government.”
36
In addition, Plaintiffs’ contention that “the Governor has exclusive executive authority to
manage an emergency which reaches beyond the boundaries of a local authority, unless the
Governor delegates such authority,” (see Doc. No. 60 at ¶ 447), ignores not only the language and
interplay of the various statutes involved but also the fact that Governor Lee has acknowledged
the authority of locally run county health departments in his Executive Orders. See, e.g., State of
Tennessee Executive Order 30, ¶ 13(c), available at
https://publications.tnsosfiles.com/pub/execorders/exec-orders-lee30.pdf (“The six locally run
county health departments in Davidson, Hamilton, Knox, Madison, Shelby, and Sullivan counties
shall have authority to issue additional orders or measures related to the containment or
management of the spread of COVID-19, which may permit to a greater degree, or restrict to a
greater degree, the opening, closure, or operation of businesses, organizations, or venues in those
counties”). Thus, Governor Lee has, at least implicitly, delegated authority to Mayor Cooper and
Metro’s Health Department to determine the breadth and nature of restrictions related to COVID-
19 in Nashville and Davidson County, despite Plaintiffs’ protestations to the contrary.
{N0355692.1} 37

Under state law, Metro’s Chief Medical Director is authorized to order the “quarantine of
any place or person, if the [Chief Medical Director] finds that quarantine is necessary to protect
the public health from an epidemic.” TENN. CODE ANN. § 68-2-609(1) (emphasis added). Section
68-5-104(a)(1) further provides that when a case or suspected case of a communicable disease is
reported, it is the duty of Metro’s Chief Medical Director “to take such steps as may be necessary
to isolate or quarantine the case or premise upon which the case, cause or source may be found.”
(emphasis added). Metro’s Chief Medical Director is also authorized under state law to order the
closure of public establishments. § 68-2-609(3) (“The county health officer is empowered to order
. . . [t]he closure of any public establishment, facility or building, if the county health officer is
otherwise authorized by law to take that action.”).
The Metropolitan Board of Health’s Declaration of Public Health Emergency related to
COVID-19, and Chief Medical Director Caldwell’s Health Orders directing the temporary closure
of non-essential businesses, were issued in an effort to maintain and protect public health and to
prevent the spread of the disease.37 Accordingly, and given the broad authority relating to civil
emergencies discussed above, the actions of both the Board of Health and Chief Medical Director
Caldwell in dealing with the COVID-19 pandemic were within the authority provided by state and
local law. Plaintiffs’ claims to the contrary should be dismissed.
37
See Health Board Declaration, supra note 3 (“In order to protect public health, the Metropolitan
Board of Health hereby directs the Chief Medical Director to act as necessary to maintain and
protect the public health, prevent the spread of the disease, and provide for the safety of the
Metropolitan Government and its residents pursuant to the authority of Tennessee law, statutes,
rules or regulations and the Metropolitan Charter and Code of Laws.”); see also Health Director
Order 3, supra note 10 (“This Order is being issued to protect the public health of the citizens of
Nashville and Davidson County, to mitigate the impact of COVID-19, to bend the curve, and to
disrupt the spread of the virus, with the goal of saving lives and reducing strain on regional
healthcare resources as much as possible.”).
{N0355692.1} 38

CONCLUSION
Plaintiffs challenge various Metro orders, many of which have been superseded and/or
rescinded, and all of which were promulgated to protect the safety and welfare of Metro citizens
during a national health crisis, and none of which constituted “a plain, palpable invasion of rights
secured by the fundamental law.” For these reasons, Plaintiffs’ claims are subject to dismissal on
jurisdictional grounds and on their underlying merits.
Respectfully submitted,
DEPARTMENT OF LAW OF THE

METROPOLITAN GOVERNMENT OF
NASHVILLE AND DAVIDSON COUNTY
ROBERT E. COOPER, JR. (#10934)
DIRECTOR OF LAW
/s/ Keli J. Oliver

Keli J. Oliver (#21023)
Michael R. Dohn (#37535)
Assistant Metropolitan Attorneys
Metropolitan Courthouse, Suite 108
P.O. Box 196300
Nashville, Tennessee 37219
(615) 862-6341
keli.oliver@nashville.gov
michael.dohn@nashville.gov
Attorneys for Mayor Cooper and Dr. Caldwell in their
Official Capacities
{N0355692.1} 39

CERTIFICATE OF SERVICE
I hereby certify that a true and accurate copy of the forgoing has been served via CM/ECF
to:
Kirk L. Clements Janet M. Kleinfelter

Attorney for Plaintiffs Cody N. Brandon
105 Broadway, Ste. 2 Miranda Jones
Nashville, TN 37201 P.O. Box 20207
Nashville, Tennessee 37202-0207
James Bryan Lewis
Attorney for Plaintiffs
214 Second Avenue North, Suite 103
Nashville, TN 37201
on this 28th day of July 2020.
/s/ Keli J. Oliver

Keli J. Oliver
{N0355692.1} 40

65 - MOLMetroMotiontoDismiss PDF

Hochgeladen von

Dokumentinformationen

Originaltitel

Copyright

Verfügbare Formate

Dieses Dokument teilen

Dokument teilen oder einbetten

Freigabeoptionen

Stufen Sie dieses Dokument als nützlich ein?

Sind diese Inhalte unangemessen?

Copyright:

Verfügbare Formate

65 - MOLMetroMotiontoDismiss PDF

Hochgeladen von

Copyright:

Verfügbare Formate

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF TENNESSEE

THE LOCAL SPOT, INC., et al., )

MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS

against Metro and state to the Court as follows:

Case 3:20-cv-00421 Document 65 Filed 07/28/20 Page 1 of 40 PageID #: 1199

the United States Department of Health and Human Services.

II. Metro’s Response to the Pandemic

Case 3:20-cv-00421 Document 65 Filed 07/28/20 Page 2 of 40 PageID #: 1200

providing take-out, window, drive-through, curb-side, or delivery services.

Case 3:20-cv-00421 Document 65 Filed 07/28/20 Page 3 of 40 PageID #: 1201

was to remain in effect for two weeks, subject to extension.

through May 11, 2020.12

Case 3:20-cv-00421 Document 65 Filed 07/28/20 Page 4 of 40 PageID #: 1202

Case 3:20-cv-00421 Document 65 Filed 07/28/20 Page 5 of 40 PageID #: 1203

cases over a two-week period and availability of diagnostic testing.

restaurants, and Order 3A, the amended “Safer at Home” order.

Case 3:20-cv-00421 Document 65 Filed 07/28/20 Page 6 of 40 PageID #: 1204

Case 3:20-cv-00421 Document 65 Filed 07/28/20 Page 7 of 40 PageID #: 1205

permitted with certain conditions and restrictions.

by replacing Section 4 with the following:

Section 4 is replaced with the following:

An individual, entity or organization that holds a license as a Limited Service

Case 3:20-cv-00421 Document 65 Filed 07/28/20 Page 8 of 40 PageID #: 1206

An individual, entity or organization whose primary business is food service (any

Case 3:20-cv-00421 Document 65 Filed 07/28/20 Page 9 of 40 PageID #: 1207

Section 7 is revised to provide that the maximum number of people allowed in

III. Plaintiffs’ Second Amended Complaint

Case 3:20-cv-00421 Document 65 Filed 07/28/20 Page 10 of 40 PageID #: 1208

Plaintiffs challenge several of the COVID-19-related orders issued by Governor Lee,

to dismissal of all claims against it.

I. Applicable Legal Standards

A. Motion to dismiss standard

Case 3:20-cv-00421 Document 65 Filed 07/28/20 Page 11 of 40 PageID #: 1209

allegations contained in a complaint is inapplicable to legal conclusions: “Threadbare recitals of

experience and common sense.” Id.

B. Standard of review during a national health crisis

Case 3:20-cv-00421 Document 65 Filed 07/28/20 Page 12 of 40 PageID #: 1210

Court’s framework established in Jacobson v. Massachusetts. 197 U.S. 11 (1905).

v. City of Flagstaff, No. CV-20-08081-PCT-GMS, 2020 WL 2308479, at *3 (D. Ariz. May 8,

2307224, at *3 (E.D. Cal. May 8, 2020)).

In Jacobson, the plaintiff challenged a Cambridge, Massachusetts, order that, pursuant to

Case 3:20-cv-00421 Document 65 Filed 07/28/20 Page 13 of 40 PageID #: 1211

travel, and even to leave one’s home.” Id. at 778.

Turning to application of the Jacobson standard to Plaintiffs’ claims in this case, it is

Case 3:20-cv-00421 Document 65 Filed 07/28/20 Page 14 of 40 PageID #: 1212

Case 3:20-cv-00421 Document 65 Filed 07/28/20 Page 15 of 40 PageID #: 1213

that regard is moot.

A. Plaintiffs’ claims related to right to travel, freedom of association, freedom from

unreasonably infringed upon those rights.

Plaintiffs allege the following:

Case 3:20-cv-00421 Document 65 Filed 07/28/20 Page 16 of 40 PageID #: 1214

them from maintaining and developing relationships with others:

(Id. at ¶¶ 57, 90).

However, none of these allegations implicate Plaintiffs’ constitutional right to travel.

stay at home as much as possible to slow the spread of COVID-19:

Case 3:20-cv-00421 Document 65 Filed 07/28/20 Page 17 of 40 PageID #: 1215

citizens could leave their homes and travel in order to:

Go to the grocery, convenience or warehouse store

Case 3:20-cv-00421 Document 65 Filed 07/28/20 Page 18 of 40 PageID #: 1216

Iqbal, 556 U.S. at 677).30

unreasonably infringed upon those rights.

Case 3:20-cv-00421 Document 65 Filed 07/28/20 Page 19 of 40 PageID #: 1217