Frank et al v. Wyoming Secretary of State et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF WYOMING
JOHN C. FRANK,
Plaintiff,
vs. 	Case No. 2:20-CV-00138-KHR
CHARLES GRAY, Wyoming Secretary
of State, SYLVIA HACKL, Laramie
County District Attorney, DEBRA LEE,
Laramie County Clerk, in their official
capacities,
Defendants.
ORDER GRANTING PLAINTIFF’S MOTION TO SUPPLEMENT VERIFIED
COMPLAINT
This case comes before the Court on remand from the Tenth Circuit Court of
Appeals. Plaintiff John C. Frank sues Wyoming state and local officials under 42 U.S.C. §
1983, alleging the state’s ban on electioneering near polling places violates the First
Amendment. Grassfire, LLC originally challenged the buffer zones around absentee
polling places, but it dissolved during the appeal’s pendency and its claims were not
considered. Mr. Frank now moves to supplement his Complaint under Rule 15(d) with
allegations that he would like to engage in signature gathering and other one-on-one
activities in both the election day and absentee voting buffer zones. Defendants oppose this
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Motion on the grounds that it would create prejudice and undue delay. Plaintiff did not file
a reply. Considering the arguments, the Court grants Plaintiff’s Motion to Supplement.
B ACKGROUND
Plaintiffs John C. Frank and Grassfire, LLC sued various Wyoming state and local
officials 	under 	§ 	1983 	claiming 	the 	state 	electioneering 	statute 	violated 	the 	First
Amendment. The statute prohibits:
Electioneering too close to a polling place or absentee polling place under
W.S. 22-9-125 when voting is being conducted, consists of any form of
campaigning, including the display of campaign signs or distribution of
campaign literature, the soliciting of signatures to any petition or the
canvassing or polling of voters, except exit polling by news media, within
one hundred (100) yards on the day of a primary, general or special election
and within one hundred (100) feet on all other days, of any public entrance
to the building in which the polling place is located. This section shall not
apply to bumper stickers affixed to a vehicle while parked within or passing
through the distance specified in this subsection, provided that: (i) There is
only one (1) bumper sticker per candidate affixed to the vehicle; (ii) Bumper
stickers are no larger than four (4) inches high by sixteen (16) inches long;
and (iii) The vehicle is parked within the distance specified in this subsection
only during the time the elector is voting.
Wyo. Stat. Ann. § 22-26-113. Mr. Frank specifically challenged the 300-foot1 election day
buffer zone on the grounds that it unconstitutionally prevented him from distributing
campaign literature and displaying bumper stickers within the zone. He also challenged the
statute on the basis of overbreadth for violations of the rights of third parties. Grassfire was
a political consulting firm that provided, among other things, polling and signature
gathering services to candidates. [ECF No. 1, at 2]. Grassfire challenged the 100-foot buffer
1 While the statute uses the term “100-yard,” this Order follows the Tenth Circuit and the pleadings in referring to
the election day buffer zone as the “300-foot” zone.
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zone that applies to absentee polling places, claiming it would not be able to participate in
its desired activities of gathering signatures and engaging in one-on-one activity within the
absentee buffer zones throughout the year. In the initial Complaint, Mr. Frank’s only
challenge to the absentee buffer zone was based on the prospect that he might inadvertently
drive through it and that it would prevent him from displaying his desired bumper stickers.
On cross-motions to dismiss, this Court struck down the 300-foot election day buffer
and the ban on bumper stickers within the election day and absentee buffer zones. This
Court upheld the electioneering ban within 100 feet of absentee polling places. This Court
held that there was an insufficient factual basis to hear Plaintiff’s overbreadth claim.
Plaintiffs and Defendants both appealed. While the appeal was pending, Grassfire,
LLC dissolved and was dismissed as a party. [ECF No. 101]. Grassfire’s as-applied
challenge to the 100-foot buffer zone was not addressed by the Tenth Circuit. The Tenth
Circuit found that the 300-foot buffer zone, the prohibition of bumper stickers, and the
election-day regulation were constitutional. The Tenth Circuit remanded to consider the
constitutionality of the 100-foot absentee buffer zone. They also ruled that there was a
sufficient factual basis to consider Plaintiff’s overbreadth claim against the entire statute
and remanded for that purpose. Plaintiff now seeks to supplement his complaint with
additional allegations that would tend to strengthen his as-applied challenges to the statute.
He alleges his desire to engage in one-on-one electioneering in both the absentee and
election day buffer zones. He also claims that he would like to display multiple violating
bumper stickers and intentionally drive through, and park within, the absentee buffer zone.
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R ELEVANT LAW
The Federal Rules of Civil Procedure state that a “court may, on just terms, permit
a party to serve a supplemental pleading setting out any transaction, occurrence, or event
that happened after the date of the pleading to be supplemented.” Fed. R. Civ. P. 15(d).
The Rules thus give courts broad discretion in deciding whether to allow a party to serve a
supplemental 	pleading 	that 	sets 	forth 	post-complaint 	transactions, 	occurrences, 	or
events. Id.; Walker 	v. 	United 	Parcel 	Serv., 	Inc., 	240 	F.3d 	1268, 	1278 	(10th 	Cir.
2001) (citing Gillihan v. Shillinger, 872 F.2d 935, 941 (10th Cir. 1989)); Reid v. Int'l
Union, UAW, Dist. Lodge 1093, 479 F.2d 517, 520 (10th Cir.), cert. denied, 414 U.S. 1076
(1973). Courts should liberally grant requests to supplement “unless good reason exists for
denying 	leave, 	such 	as 	prejudice 	to 	the 	defendants.” Walker, 	240 	F.3d 	at
1278 (citing Gillihan, 872 F.2d at 941. Thus, “[i]f the underlying facts or circumstances
may be a proper subject of relief, he ought to be afforded an opportunity to test his claims
on the merits.” Foman v. Davis, 371 U.S. 178, 182–83 (1962). A non-exhaustive list of
reasons to deny the motion includes undue delay, bad faith or dilatory motive on part of
the movant, repeated failure to cure deficiencies by previous amendments, undue prejudice
to opposing party, or futility of the amendment. Id.; Minter v. Prime Equipment Co., 451
F.3d 1196, 1204 (10th Cir. 2006).
DISCUSSION
Defendants oppose Plaintiff’s Motion to Supplement Verified Complaint on the
grounds that it would result in prejudice and undue delay. The Court will address those
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arguments, then consider if any other grounds exist that would justify denial of leave to
supplement.
I. 	Prejudice
Defendants argue that allowing Plaintiff to supplement his complaint would result
in prejudice because it would potentially necessitate additional discovery and force
Defendants to prepare against a new claim. Plaintiff argues that because the factual
allegations he seeks to include are similar to those previously urged by Grassfire, LLC,
Defendants would be able to combat those claims in the same way. The Court agrees with
Plaintiff.
Prejudice “[m]ost often…occurs when the amended claims arise out of a subject
matter different from what was set forth in the complaint and raise significant new factual
issues.” Minter, 451 F.3d at 1208; see also Gillette v. Tansy, 17 F.3d 308, 313 (10th Cir.
1994) (finding no prejudice where the new claim “track[ed] the factual situation” in the
original complaint). As Defendant points out, Plaintiff urges substantially similar facts to
those originally brought by Grassfire. Like Grassfire, Mr. Frank seeks to engage in one-
on-one electioneering within the absentee buffer zone. Grassfire’s involvement did not
cease until after the record was fully formed and the case was stayed for appeal. Defendants
therefore had substantial notice of the challenge to the 100-foot buffer zone.
The Proposed Amended Complaint would not bring an entirely new claim even with
respect to Mr. Frank, who previously challenged the 100-foot buffer zone based on the
possibility that he might inadvertently drive through the zone while displaying prohibited
bumper stickers. His new desire to engage in one-on-one electioneering and to intentionally
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park within the buffer zone with the offending bumper stickers merely strengthens that
challenge in a manner that is fully permissible. He alleges facts that fit within the Tenth
Circuit’s remand and that simply “enlarge…the type of relief” to which he is entitled, as is
permitted under Rule 15(d). Callen v. Wyoming Dep’t of Corrections, No. 13–CV–187,
2014 WL 12650683 at *2 (D. Wyo. 2014).
Defendants also refer vaguely to allegations that “appear to contradict Frank’s
sworn deposition testimony” as part of their potential need for new discovery but do not
refer the Court to any specific part of the record. They also do not explain why these
contradictions would create prejudice or undue delay. Furthermore, “the expenditure of
time, money, and effort alone is not grounds for a finding of prejudice.” Bylins v. Billings,
568 F.3d 1224, 1230 (10th Cir. 2009). Without more, it is not apparent that Defendants
would suffer prejudice from Plaintiff’s proposed supplementation.
II. 	Undue Delay
Defendants contend that allowing Plaintiff to amend his complaint would result in
undue delay by reopening discovery. However, the “undue delay” consideration is oriented
toward timeliness, not delay resulting from the amended or supplemented pleading. See
Minter, 451 F.3d at 1206 (“This Circuit…focuses primarily on the reasons for the delay.”);
Hayes v. Whitman, 264 F.3d 1017, 1026 (10th Cir. 2001). Grassfire dissolved while the
case was stayed pending appeal, and when the case was reopened Plaintiff brought this
Motion to Supplement within a month of this Court’s order to file any supplemental
pleadings. It would be unfair for this Court to invite supplementation upon the reopening
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of the case after remand, then deny a motion to supplement on the grounds that there was
undue delay. The Court finds no undue delay in the Plaintiff’s Motion.
III. 	Bad faith
Courts are also to consider if there is apparent bad faith when ruling on a motion to
amend or supplement. Minter, 451 F.3d at 1204. In their Response, Defendants argue that
“the only explanation for the additional activity related to absentee buffer zones appears to
be that Grassfire is no longer a party to pursue those claims and that Frank wants to shift
the focus of his challenge from the election-day buffer zone to the absentee day buffer zone
based on the Tenth Circuit’s decision.” This Court interprets these arguments as opposition
based on the grounds of bad faith, but the Court sees no obvious bad faith in Plaintiff’s
Motion. Again, Plaintiff does not create out of thin air some new legal basis for relief.
While the fact that his newfound desire to engage in the described activities arises after
multiple years of litigation may raise eyebrows, the Court is reluctant to attribute these
assertions to bad faith absent direct evidence. Accordingly, the Court finds that bad faith
does not bar Plaintiff’s Motion.
IV. 	Limited remand
Defendants repeatedly argue that the Tenth Circuit gave only a limited remand and
that Plaintiff’s new allegations fall outside of the remand’s bounds. The Court disagrees on
both fronts. This Court interprets the Tenth Circuit’s remand to be general, in light of the
fact that there are no explicit limitations. See U.S. v. West, 646 F.3d 745, 749 (10th Cir.
2011) (citing U.S. v. Helton, 349 F.3d 295, 299 (6th Cir. 2003)) (explaining that, under
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Tenth Circuit precedent, there is a “presumption in favor of a general remand” and any
limitation on the scope of remand must be explicitly established by the appellate court).
Even if the remand was limited in nature, Mr. Frank’s new as-applied challenge to
the absentee buffer zone does not fall outside of the Tenth Circuit’s immediate mandate to
“consider whether [the 100-foot] buffer zone passes constitutional muster.” [ECF No. 94,
at 64]. The Tenth Circuit vacated the District Court’s judgment as to the constitutionality
of the 100-foot buffer zone and did not address any challenges to the conduct prohibited
within that zone. They ordered that “[t]he temporal scope of Wyoming’s electioneering
statute, as applied to the absentee voting period and the prohibited electioneering activities
within that zone, including the ban on bumper stickers and signature gathering, should be
considered by the district court on remand.” Id. at 59. Plaintiff’s desire to engage in one-
on-one electioneering and deliberately display offending bumper stickers would fall
squarely within this consideration. It is therefore entirely within the District Court’s
discretion to consider the new claims and to determine whether they should be admitted
under the standard given in Rule 15(d).
CONCLUSION
The Court grants Plaintiff’s Motion to Supplement Verified Complaint. While it is
true that Plaintiff could have made these factual allegations at the outset of these
proceedings, it is not apparent that his doing so now comes out of bad faith or dilatory
motive. Nor would this unfairly prejudice defendants by “moving the goalposts” or creating
the need for excessive new discovery. Plaintiff does not seek to add new defendants or
introduce novel, unrelated claims. His desire to participate in one-on-one electioneering
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within the absentee buffer zones fits squarely within the subject matter of the original
complaint and relates closely to the scope of the Tenth Circuit’s concerns on remand. The
addition of these facts does not change the nature of the suit or prejudice Defendants to the
extent that Plaintiff’s claims should not be heard. Given these considerations and the liberal
standard for supplementing complaints, the Court grants Plaintiff’s Motion.
NOW, THEREFORE, IT IS ORDERED Plaintiff’s Motion to Supplement Verified
Complaint is GRANTED.
IT IS FURTHER ORDERED Plaintiff shall file an Amended Complaint on or
before July 18th , 2024. Defendants shall respond 14 days later. The Parties shall then file
simultaneous briefing, as earlier directed in ECF No. 107, on or before August 17 th , 2024.
Dated this 9th day of July, 2024.
Kelly H. Rankin
United States District Judge
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