Dennis v. City of Rochester et al

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
MOLLY L. DENNIS,
Plaintiff,
v.
CITY OF ROCHESTER and KIM
NORTON, individually and in her
official capacity as the mayor of the City
of Rochester,
Defendants.
Case No. 24‐CV‐0426 (PJS/DLM)
ORDER
John Hayden, QUANTUM LEX PA; John R. Neve, NEVE WEBB, PLLC;
and Paul Timothy Ostrow, I, OSTROW LAW LLC, for plaintiff.
Erin Emory, Farah N. Famouri, and Jenny Gassman‐Pines, GREENE
ESPEL PLLP, for defendants.
This matter is before the Court on defendants’ objection to the January 22, 2026
Report and Recommendation (“R&R”) of Magistrate Judge Douglas L. Micko. ECF
Nos. 106, 107. Judge Micko recommends denying plaintiff Molly Dennis’s motion to
amend her complaint a second time [ECF No. 73], except Judge Micko recommends
allowing Dennis to add a First Amendment retaliation claim (Count X) against the City
of Rochester. The Court has conducted a de novo review. See 28 U.S.C. § 636(b)(1); Fed.
R. Civ. P. 72(b). Based on that review, the Court sustains the objection, rejects the R&R
in part, and denies the motion to amend in its entirety.
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As the R&R recognizes, a motion to amend a complaint to add a new claim
should be denied if the new claim “could not withstand a motion to dismiss under Rule
12(b)(6) of the Federal Rules of Civil Procedure.” Zutz v. Nelson, 601 F.3d 842, 850 (8th
Cir. 2010) (citation omitted). In ruling on a Rule 12(b)(6) motion, a court must accept as
true all of the factual allegations in the complaint and draw all reasonable inferences in
the plaintiffʹs favor. York v. Wellmark, Inc., 965 F.3d 633, 638 (8th Cir. 2020). Although
the factual allegations need not be detailed, they must be sufficient to “raise a right to
relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
The complaint must “state a claim to relief that is plausible on its face.” Id. at 570.
The First Amendment retaliation claim in the proposed second amended
complaint would not withstand a motion to dismiss. To plead a plausible claim of First
Amendment retaliation, Dennis’s complaint must (1) identify a statement that she made
or act that she committed that was protected by the First Amendment; (2) identify an
adverse action that defendants took against her that would chill a person of ordinary
firmness from continuing in that activity; and (3) plead sufficient facts to make plausible
the allegation that, in taking the identified adverse action, defendants were motivated at
least in part by the identified activity that was protected by the First Amendment.
Scheffler v. Molin, 743 F.3d 619, 621 (8th Cir. 2014).
Dennis’s proposed second amended complaint falls short on all three elements:
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First, in describing the activity that she claims to be protected by the First
Amendment, Dennis mostly pleads sweeping generalities such as “[r]equesting
reasonable accommodation for her ADHD,” “[d]isagreeing with majority positions of
the Council on issues,” and “[c]onducting her public duties in a manner consistent with
her ADHD, including displaying hyperactivity . . . .” ECF No. 74 at ¶ 26. Putting aside
the fact that some of what Dennis identifies (such as “hyperactivity”) is probably not
protected by the First Amendment, all of these are activities in which she would have
engaged from the moment she joined the City Council1—i.e., for years before she was
excluded from any meeting. See ECF No. 107 at 8 n.3. The only specific activity that she
identifies is that she objected to the Council holding a strategic planning meeting at the
Plummer House (which is apparently a historic house in Rochester that can be rented
for meetings) on February 27, 2023, and to the Council’s failure to make a “live
recording” of that meeting. ECF No. 74 at ¶ 26(b).
Second, in describing the acts that defendants took to retaliate against her for
engaging in activity protected by the First Amendment, the proposed complaint
contains only (to quote the R&R) “a barebones statement that Plaintiff was excluded
from parts of some council meetings” with “scant detail about when, or how, she was
1For example, the proposed complaint pleads that “Dennis openly disclosed her
disability prior to starting her position on or about the 1st of January 2021,” and, “[s]oon
after taking office Dennis filed her official medical ADA accommodation letter . . . .”
ECF No. 74 at ¶ 12 (emphasis added).
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removed.” ECF No. 106 at 20, 23. The proposed complaint does not even identify the
dates of the meetings from which Dennis was expelled, much less describe any of the
context—such as when during the meeting she was expelled, what (if anything) she did
that triggered her expulsion, how (if at all) the Council majority justified its action, and
why a jury could conclude that the justification was pretextual.
Finally, Dennis’s proposed complaint does not allege facts to make plausible its
conclusory assertion—relied upon by the R&R—that defendants “engaged in concrete
adverse actions . . . to retaliate against Plaintiff and chill her First Amendment rights.”
ECF No. 74 at ¶ 27. The proposed complaint includes Dennis being “evicted from City
Council meetings” on “several occasions” in a long list of alleged “concrete adverse
actions.” Id. at ¶ 27(b). But Dennis’s assertion that the alleged “concrete adverse
actions” were done in retaliation for her exercise of First Amendment rights is a
prototypical “conclusory statement” that the Court is not required to accept as true.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Such a conclusory statement does not have
“facial plausibility” unless “the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Id. (emphasis added).
Dennis’s proposed complaint does not plead sufficient facts to make plausible her
claim that she was ejected from “several” unidentified City Council meetings in
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retaliation for her engaging in activity protected by the First Amendment. The
proposed complaint describes neither direct (e.g., a statement by a Council member) nor
indirect (e.g., disparate treatment) evidence of unconstitutional retaliation. To the
contrary, the facts pleaded in the proposed complaint make that claim quite implausible.
As noted, the proposed complaint identifies only one specific instance of First
Amendment activity: Dennis’s objection to the City Council choosing to meet at the
Plummer House on February 27, 2023, and not recording its meeting. Defendants
assert, however—and Dennis does not dispute—that the publicly available minutes of
the City Council show that Dennis was expelled from meetings on four occasions:
May 20, 2024; August 5, 2024; October 7, 2024; and December 2, 2024. See ECF No. 107
at 8 n.3. In other words, Dennis was not expelled from a meeting until almost 15 months
after the meeting at the Plummer House. It defies belief that a majority of Council
members decided to expel Dennis from the May 20, 2024 meeting (but not any prior
meeting) because, well over a year earlier, Dennis had objected to meeting at the
Plummer House and not recording the meeting.
As described above, almost all of the other First Amendment activity to which
the proposed complaint points—including “[r]equesting reasonable accommodation for
her ADHD,” “[d]isagreeing with majority positions of the Council on issues,” and
“[c]onducting public duties in a manner consistent with her ADHD, including
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displaying hyperactivity,” was activity in which Dennis would have engaged from
almost the moment she joined the City Council on January 1, 2021. Again, it is
implausible to assert that, for example, the Council’s decision to expel Dennis from a
meeting on May 20, 2024 was in retaliation for Dennis requesting accommodations for
her ADHD over the past three and one half years. And if the expulsions were in
retaliation for Dennis’s “[d]isagreeing with majority positions of the Council on issues,”
it is difficult to understand why the Council did not expel her much earlier—or why,
after expelling her on May 20, 2024, the Council welcomed her back at subsequent
meetings.
Admittedly, it is possible that the City Council expelled Dennis from four
meetings in 2024 to retaliate against her for activity in which she’d continuously
engaged since January 1, 2021. But the standard is plausibility, not possibility, and the
proposed complaint fails to plead sufficient “factual content” to lend plausibility to
Dennis’s claim of First Amendment retaliation. Iqbal, 556 U.S. at 678.
ORDER
Based on the foregoing, and on all of the files, records, and proceedings herein,
IT IS HEREBY ORDERED THAT:
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1. 	Defendants’ objection [ECF No. 107] to the January 16, 2026 Report and
Recommendation [ECF No. 106] is SUSTAINED and the R&R is
ADOPTED only insofar as it is consistent with this order.
2. 	Plaintiff’s motion to amend the complaint [ECF No. 73] is DENIED.
Dated: March 23, 2026 	/s/ Patrick J. Schiltz
Patrick J. Schiltz, Chief Judge
United States District Court
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