Redlich v. City of St. Louis, 4:19-CV-00019-NAB

CourtU.S. District Court — Eastern District of Missouri
Writing for the CourtNANNETTE A. BAKER, UNITED STATES MAGISTRATE JUDGE
PartiesRAYMOND REDLICH, et al., Plaintiffs, v. CITY OF ST. LOUIS, Defendant.
Decision Date22 July 2021
Docket Number4:19-CV-00019-NAB

RAYMOND REDLICH, et al., Plaintiffs,
v.

CITY OF ST. LOUIS, Defendant.

No. 4:19-CV-00019-NAB

United States District Court, E.D. Missouri, Eastern Division

July 22, 2021


MEMORANDUM AND ORDER

NANNETTE A. BAKER, UNITED STATES MAGISTRATE JUDGE

This matter is before the Court on the Motion for Summary Judgment filed by Defendant City of St. Louis (“City” or “Defendant”) (Doc. 32), and the partial Motion for Summary Judgment filed by Plaintiffs Raymond Redlich and Christopher Ohnimus (“Redlich” or “Ohnimus, ” respectively, or collectively, “Plaintiffs”) (Doc. 36). The motions have been fully briefed and are ripe for disposition. The parties have consented to the jurisdiction of the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). For the reasons set forth below, the Court will grant in part and deny in part the City's Motion for Summary Judgment and deny Plaintiffs' Motion for Summary Judgment.

I. PROCEDURAL BACKGROUND

On January 8, 2019, Plaintiffs filed their five-count Complaint for Declaratory and Injunctive Relief against the City of St. Louis. (Doc. 1.) Plaintiffs, who are Christians, brought this action based on municipal citations that were issued on October 31, 2018 for distributing bologna sandwiches to the homeless without a temporary food permit in violation of City Ordinance No. 68597.

Plaintiffs bring each of their first three claims under the First and Fourteenth Amendments to the United States Constitution: Count I-Free Exercise of Religion; Count II-Freedom of Expression; Count III-Equal Protection of the Laws and Freedom of Association. Plaintiffs bring their fourth and fifth claims pursuant to Missouri law: Count IV-Rights of Conscience under the Missouri Constitution Article I, Section 5; and Count V-Missouri Religious Freedom Restoration Act (Mo. Rev. Stat. § 1.302). (Doc. 1.) Plaintiffs' Complaint asks the Court to issue a declaration that St. Louis City Code § 11.42.230, Chapter 9[1] violates the following laws as applied to Plaintiffs and others similarly situated: (a) the First and Fourteenth Amendments of the U.S. Constitution; (b) Article I, Section 5 of the Missouri Constitution; and (c) Mo. Rev. Stat. § 1.302. Plaintiffs also seek an injunction prohibiting the City from enforcing St. Louis City Code § 11.42.230, Chapter 9, against Plaintiffs and others similarly situated. In addition, Plaintiffs seek attorney fees and costs.

The City moves for summary judgment on all five claims. Plaintiffs move for summary judgment on Counts I, II, and V only.

II. STANDARD OF REVIEW

Summary judgment shall be granted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); Hill v. Walker, 737 F.3d 1209, 1216 (8th Cir. 2013). To establish the existence of a genuine issue of material fact, “[a] plaintiff may not merely point to unsupported self-serving allegations.” Bass v. SBC Commc'ns, Inc., 418 F.3d 870, 872 (8th Cir. 2005). “Mere allegations, unsupported by specific facts or evidence beyond the nonmoving party's own conclusions, are insufficient to withstand a motion for summary judgment.” Thomas v. Corwin, 483 F.3d 516, 527 (8th Cir. 2007). “[T] here must be evidence on which the jury could reasonably find for the plaintiff.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986) (emphasis added); Davidson & Assoc. v. Jung, 422 F.3d 630, 638 (8th Cir. 2005); Smith v. International Paper Co. 523 F.3d 845, 848 (8th Cir. 2008) (the nonmoving party must “substantiate his allegations with sufficient probative evidence that would permit a finding in his favor based on more than mere speculation, conjecture, or fantasy”). Evidence that is “merely colorable” or “is not significantly probative” is insufficient. Anderson, 477 U.S. at 249-50; Barber v. C1 Truck Driver Training, LLC, 656 F.3d 782, 801 (8th Cir. 2011). Summary judgment is particularly appropriate when only questions of law are involved, rather than factual issues that may or may not be subject to genuine dispute. See, e.g., Cremona v. R.S. Bacon Veneer Co., 433 F.3d 617, 620 (8th Cir. 2006).

III. FACTUAL BACKGROUND

The City and Plaintiffs filed separate Statements of Uncontroverted Material Facts in support of their respective motions. (Docs. 35, 37.) Each side has made preliminary objections to specific evidence relied upon by their opponent. The Court will address the parties' objections and determine which of the parties' exhibits may be considered in evaluating the cross motions for summary judgment.

A. Plaintiffs' Objections to the City's Exhibits

Plaintiffs request that the Court exclude eleven of the City's exhibits in support of its motion. (Doc. 44.)

1. 2009 Food Code

Plaintiffs contend Exhibits F, H, J, K, L, and M should be excluded because they are not authenticated and/or because they are incomplete versions of the documents they purport to be. The City responds that these exhibits are excerpts from chapters of the 2009 Food Code published by the U.S. Department of Health and Human Services and the Food and Drug Administration, abbreviated in the interest of judicial economy and convenience. Although Plaintiffs object to the City's Food Code exhibits, Plaintiffs' own exhibits include a more comprehensive version of the same 2009 Food Code. (Doc. 36-10, Plaintiffs' Exhibit 7.) Additionally, as Plaintiffs point out in defense of their own exhibits, the applicable standard for evidence offered in support of a motion for summary judgment is whether the proffered evidence could be presented at trial in an admissible form. Gannon International, Ltd. v. Blocker, 684 F.3d 785, 793 (8th Cir. 2012) (“[T]he standard is not whether the evidence at the summary judgment stage would be admissible at trial- it is whether it could be presented at trial in an admissible form.”). Therefore, the Court overrules Plaintiffs' objection and will consider the Food Code.

2. Ordinances

Plaintiffs argue the St. Louis City Ordinances at the City's Exhibits E and G should be excluded because they are not authenticated.[2] Although it was not necessary at the summary judgment stage, see Gannon International, Ltd., 684 F.3d at 785, the City has cured any alleged deficiency by supplementing the record with certified copies of both Ordinance 68597 and Ordinance 71106. (Docs. 52-1, 52-2.) Accordingly, the Court overrules Plaintiffs' objection and will consider the Ordinances. See Fed.R.Evid. 902(4) (certified copies of public records are selfauthenticating).

3. Affidavits

The City's Exhibits A, I, and O are affidavits of Kenneth Kegel, Stephen Ogunjobi and Matthew Haslam. Plaintiffs seek to exclude these affidavits, arguing that the City did not meet its Rule 26 obligations in disclosing these witnesses. Federal Rule of Civil Procedure 37(c)(1) states, “[I]f a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.” In the Eighth Circuit, “[t]he use of an undisclosed witness should seldom be barred unless bad faith is involved.” Bergfeld v. Unimin Corp., 319 F.3d 350, 355 (8th Cir. 2003) (citing Mawby v. United States, 999 F.2d 1252, 1254 (8th Cir. 1993) and Mills v. Des Arc Convalescent Home, 872 F.2d 823, 826 (8th Cir. 1989)). The Court will address each disputed affidavit individually.

a. Exhibit A: Kegel Affidavit

Kenneth Kegel is a Health Services Manager II at the St. Louis City Health Department and manages inspectors who enforce the temporary food permit ordinance at issue. Plaintiffs argue that Kegel was never disclosed as a witness, thus his testimony should be excluded pursuant to Rule 37(c)(1).

The City responds that Kegel and his testimony were made known to Plaintiffs by the City's email production. In June and August of 2020, the City responded to requests for production by providing emails that contained the identity of Kegel and the information in his affidavit.

Rule 26(e) provides that “A party who has made a disclosure under Rule 26(a) . . . must supplement or correct its disclosure or response: (A) in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writings” FRCP 26(e)(1)(A) (emphasis added). Attached to Kegel's affidavit is an email that Kegel sent in 2012 regarding complaints from residents that groups are coming downtown and providing food to the homeless, and “[a]lthough many groups have good intentions when providing food to the homeless, there have been occasions where individuals have gotten sick as a result of the provided food.” (Doc. 35-1.) Plaintiffs do not assert they have never seen this email or that they have never heard of Kegel, only that the City did not disclose him as a witness. Because Kegel's identity and testimony were revealed to Plaintiffs in the City's documents produced in response to discovery requests, Plaintiffs had notice that Kegel may have had information relevant to the case. The Court does not believe the City failed to meet its Rule 26 obligations with respect to disclosing Kegel, and even assuming it did, any failure was harmless and did not result in unfair prejudice. See Bergfeld, 319 F.3d at 355 (affirming district court's consideration of affidavit because “[a]lthough [affiant's] name was not included in Lockheed Martin's disclosures, Bergfeld had adequate notice during discovery that [affiant] was a person likely to have discoverable information.”). The Court will not exclude Kegel's affidavit under Rule 37(c) and overrules Plaintiffs' objection.

b. Exhibit O: Ogunjobi...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT