Judge Moon's Denial of Preliminary Injunction in Route 29 Lawsuit

Several months ago, business owners on Route 29 filed a lawsuit against federal and state transportation officials challenging the plan to build a grade separated interchange at Route 29 and Rio Road.  The plaintiffs claimed that defendants improperly segmented a single construction project into three individual projects in order to avoid the requirements of certain federal environmental regulations. After holding an evidentiary hearing on June 1, Judge Moon denied plaintiff's request for a preliminary injunction.  The ruling was based on a finding that plaintiffs were not likely to succeed on the merits of their claim and a balancing of the equities.

Judge Moon began his opinion with the observation that "[t]he question of how to best address congestion on Route 29 in the Charlottesville and Albemarle County areas has long been a source of contention in the area"--quite an understatement!  Traffic on Route 29 has been a hot topic of debate since a western bypass was first proposed 36 years ago in 1979.

Judge Moon's opinion is available here.  Plaintiffs voluntarily dismissed their lawsuit shortly after Judge Moon denied the preliminary injunction, and construction has been progressing since then.

Judge Moon and Civil Rights Lawsuits Against Bedford County Public Schools

Judge Moon has ruled on two cases in the past month involving constitutional civil rights issues and public schools.

In L.E.A. v. Bedford County School Board, Judge Moon denied a preliminary injunction prohibiting the School Board from closing Body Camp Elementary School pursuant to its redistricting plan.  Plaintiffs argued that the decision to close Body Camp -- which has a higher percentage of African American students than other elementary schools that were not closed -- violated the Equal Protection Clause of the 14th Amendment and Civil Rights Act of 1964.

Judge Moon, however, denied the requested preliminary injunction after determining that plaintiffs failed to establish a likelihood of success on the merits.  The Court pointed to evidence

"that the School Board closed Body Camp because the school's long-term maintenance needs were substantially greater than those at Moneta Elementary School [the other school under consideration for closing], which is supported by the findings in [an independent consultant's] review.  Moreover, the circumstances surrounding the School Board's decision do not necessarily indicate an intent to discriminate against minority students."

In R.M.B. v. Bedford County School Board, Judge Moon considered another civil rights action brought by a student claiming that his 364-day suspension from Bedford Middle School violated the Due Process Clause of the 14th Amendment.

The student was suspended for possession of marijuana after the assistant principal found "crumpled leaves" and a lighter in his backpack after hearing rumors that the student was bragging about possessing marijuana.  A sheriff's deputy and school resource officer field tested the leaves twice and the results were negative for marijuana.  Plaintiff claims that he and his parents were not told about the negative test results at the suspension hearing, and only learned about them when the criminal charges were dismissed.  Judge Moon denied the defendant's motion to dismiss the student's civil rights case and is allowing the case against some of the individual defendants to proceed to discovery, although the claims against the School Board were dismissed.

I should disclose that my father is a member of the Bedford County School Board and that many years ago, prior to law school and before the age of zero tolerance policies, I was a teacher at Bedford Middle School.

Ruling in First Amendment Suit Strikes Down Charlottesville Panhandling Ordinance

My office off of Charlottesville’s downtown mall provides me with a great view of each day’s activities in this lively pedestrian space.  On any given day,  I can see the street musicians, vendors, or the blindfolded gentleman who gives away free hugs.  However, an interesting First Amendment case out of the Western District of Virginia is likely to ensure even more activity on Charlottesville’s downtown mall. 

In a recent case, Judge Moon found that a Charlottesville ordinance, which prohibits panhandling on the downtown mall, violates the First Amendment of the Constitution.  The challenged ordinance specifically prohibited solicitation in a 50-foot “buffer zone” of portions of the mall.  The suit challenging the ordinance was filed in federal court over three years ago on behalf of several homeless Charlottesville residents and was initially dismissed by Judge Moon.  But after the Supreme Court struck down a Massachusetts “buffer zone” law last year, localities around the country have seen similar laws overturned by the courts.  In this suit, Judge Moon found that the City improperly focused on panhandlers when creating its ordinance and struck down the ordinance because it prohibits a certain type of speech.  Free speech advocates seem pleased with the ruling, while downtown business owners seem concerned about aggressive solicitation in areas with high foot-traffic. 

For more information on the case, check out a recent Daily Progress article, found here.  

Defendant Who Defeated Preliminary Injunction And Obtained Dismissal For Failure To Prosecute Is Not A "Prevailing Party" In Patent Case

The "prevailing party" in a patent case is entitled to attorney fees from the losing side under 35 U.S.C. 285.  However what constitutes a "prevailing party" sometimes can be difficult to determine.  Judge Moon recently held that a defendant who defeated a motion for preliminary injunction and obtained a dismissal of all claims for failure to prosecute was not a "prevailing party" despite the defendant's success.  The lawsuit, filed in the Charlottesville Division of the Western District of Virginia, involved patent infringement of a pocketed bra design.  The court's rational for denying the motion for fees was based upon existing precedent regarding similar circumstances.  A plaintiff who obtains a preliminary injunction is not a "prevailing party" because preliminary injunction proceedings are a necessarily abbreviated inquiry into the merits of a case.  Therefore, the court concluded that if a plaintiff who obtains a preliminary injunction is not a "prevailing party" then it logically follows that a defendant who defeats a preliminary injunction is similarly not a "prevailing party."  Also, the court's subsequent dismissal, without prejudice, of plaintiff's claims for failure to prosecute was not an adjudication on the merits and therefore did not confer "prevailing party" status.  The case is styled Robinson v. Bartlow, No. 3:12cv024 (W.D.Va. 2014).

Summary Judgment Hearing On First Amendment Challenge To Charlottesville's Panhandling Ban

On Thursday, November 21, Judge Moon heard arguments on summary judgment motions in a case challenging Charlottesville's panhandling ban under the First Amendment.  Judge Moon had originally dismissed the case, but the Fourth Circuit reversed that decision in February.

The arguments during the summary judgment hearing focused on whether the City targeted a specific form of speech or whether the City regulated speech in a neutral way, and whether the ban was broader than reasonably necessary.  The ordinance bans panhandling within 50 feet of two vehicle crossings on the Downtown Mall.  The City justifies the ban as a content-neutral regulation that protects public safety.

The Daily Progress quotes Judge Moon as saying: "The way I see this case, frankly, is whether 50 feet, on either side is too much....  I thought the big problem would be the distraction to divers and the danger to pedestrians."

Counsel for the plaintiffs -- a group of homeless men who want to panhandle on the Downtown Mall -- argued "Panhandlers, for the most part, including my clients, sit passively with a sign along the walls of the Downtown Mall.  They don't stop people."

The attorney for the City of Charlottesville argued that the 50 foot ban was reasonable, especially given the other areas where panhandling is allowed: "What we are dealing with is 200 feet total ... on two crossings on a mall that is one-third of a mile long and 60 feet wide."

Judge Moon is not expected to rule for another two months.  Trial is scheduled in the Western District of Virginia for March 3, 2014.

Lawsuit Seeks to Block Merger Between StellarOne and and Union First Bankshares

The Charlottesville Daily Progress reports that a class action lawsuit has been filed in the Western District of Virginia to block the proposed merger between StellarOne and Union First Bankshares.  Richmond-based Union First announced plans to acquire StellarOne on June 10, 2013.  StellarOne's holding company is located in Charlottesville, while its bank headquarters are located in Christiansburg, Virginia.  The lawsuit, filed four days after the announcement, alleges that the proposed acquisition would "unfairly deprive" StellarOne's shareholders of potential investment value and allegedly constitute a breach of fiduciary duty.  The defendants have filed a motion to dismiss arguing, among other things, that the plaintiffs lack standing to challenge the merger.  The case, which was filed in the Charlottesville division, is being heard by Judge Moon.  I have two minor interests in this case.  First, I have a mortgage with StellarOne.  And second, I used to work with the attorneys for some of the defendants when I practiced law in Richmond.

Mortgage Foreclosure Opinions From Judge Wilson and Judge Moon

Borrowers facing foreclosure often attempt to delay or prevent foreclosure by filing lawsuits against the noteholder or servicer of their mortgage.  There have been two recent decisions from the Western District of Virginia dismissing such claims.  In Johnson v. Federal Home Loan Mortgage Corporation, Judge Wilson dismissed a breach of contract claim related to an allegedly defective notice of acceleration.  And in Canterbury v. J.P. Morgan, Judge Moon dismissed a claim for rescission under the Truth in Lending Act.  That opinion is not yet available on the Court's website.  I will write more about these two opinions in separate blog posts.  (DISCLAIMER: I represented J.P. Morgan in the second case referenced above).