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

DÉJÀ VU OF NASHVILLE, INC., and § THE PARKING GUYS, INC., § § Plaintiffs, § § v. § Case No.: 3:18-cv-00511 § METROPOLITAN GOVERNMENT § Chief Judge Crenshaw OF NASHVILLE AND DAVIDSON § COUNTY, et al. § § Defendants. §

MEMORANDUM IN SUPPORT OF DEFENDANT LINDA SCHIPANI’S MOTION TO DISMISS

I. Introduction and Summary of Argument

This case alleges that while testifying during an administrative hearing before a regulatory commission, and while providing other evidence to that commission, Linda Schipani engaged in a

42 U.S.C. § 1985 conspiracy to deny The Parking Guys its “civil right” to a valet permit to service

Déjà Vu of Nashville, a local strip club.1 To encourage witnesses like Mrs. Schipani to come forward, however, and to foreclose the possibility of retaliatory lawsuits like this one, Tennessee law affords witnesses absolute immunity for all statements made during the course of such

proceedings. As such, Plaintiffs’ claims against Mrs. Schipani must be dismissed with prejudice.

Critically, before denying The Parking Guys’ permit application, Metro Nashville’s Traffic

and Parking Commission held multiple hearings, provided notice of those hearings to the public,

1 See Doc. #1 (Complaint), PageID #12, ¶ 50 (“Schipani’s testimony included knowingly false statements that were known to be false when made or that were made with reckless disregard to the truth . . . . ”); PageID #20, ¶¶ 79-81 (setting forth 42 U.S.C. § 1985 claim). The governmental defendants have additionally been sued under 42 U.S.C. § 1983. See id. at ¶ 82. The Plaintiffs’ § 1983 claim is not alleged against Mrs. Schipani or Defendant Molette. See id. -1-

Case 3:18-cv-00511 Document 18 Filed 07/13/18 Page 1 of 26 PageID #: 238 and afforded both The Parking Guys and interested local business owners an opportunity to be

heard.2 The Parking Guys also took full advantage of its opportunity to be heard by participating

in the Commission’s hearings and making the same arguments advanced in this lawsuit.3

After reviewing an extensive evidentiary record,4 the Commission denied The Parking

Guys’ permit application on August 14, 2017.5 Believing that the Commission’s denial had been

unfounded and was the product of an elaborate conspiracy, however, The Parking Guys petitioned the Davidson County Chancery Court for a writ of certiorari.6 On July 6, 2018, the Chancery

Court judge affirmed the Commission’s denial in full.7 Because that judgment is not yet final,

however, the Plaintiffs’ contention that The Parking Guys’ valet permit application was unlawfully

denied by the Traffic and Parking Commission remains pending in a parallel state proceeding.8

Nonetheless, the crux of Plaintiffs’ case—that “there was and is no factual basis” for

denying The Parking Guys a valet permit,9 and that the denial at issue was “improper”10—has

already been determined against The Parking Guys and is awaiting final judgment in state court.11

2 See Doc. #1-19 (Transcript of July 10, 2017 Metropolitan Traffic and Parking Commission Hearing), PageID ##104- 05 (“I’m the owner of the Parking Guys, Nashville, Tennessee. . . . I’m here to get approval for our valet lane at Déjà Vu.”); Doc. #1-25 (Transcript of August 14, 2017 Metropolitan Traffic and Parking Commission Hearing), PageID #156 (“I’m the owner of the Parking Guys. We have the operation there. In all fairness, I appreciate all the pictures that have been distributed and the opposition. But we’re - - we’re totally running our operation as we’re supposed to.”).

3 See, e.g. Doc. #1-25, PageID ##156-58; Doc. #1-19, PageID ##104-05.

4 Doc. #1-19 (Transcript of July 10, 2017 Hearing); Doc. #1-25 (Transcript of August 14, 2017 Hearing).

5 Doc. #1 (Complaint), PageID #19, ¶¶ 74, 76.

6 Doc. #1 (Complaint), PageID #19, ¶ 77; Doc. #1-26 (Petition for Writ of Certiorari). See also Exhibit 2, pp. 2, 20 (seeking certiorari based, inter alia, on the “improper influence” and “ulterior motives” involved).

7 See Exhibit 1 (Order Denying Certiorari).

8 See Tenn. R. Civ. P. 59.04 (“A motion to alter or amend a judgment shall be filed and served within thirty (30) days after the entry of the judgment.”).

9 Doc. #1 (Complaint), PageID #18, ¶ 69.

10 Doc. #1 (Complaint), PageID #20, ¶¶ 79-81.

11 Exhibit 1 (Order Denying Certiorari). The Chancery Court’s Order will not become final until August 5, 2018. See Tenn. R. Civ. P. 59.04. -2-

Case 3:18-cv-00511 Document 18 Filed 07/13/18 Page 2 of 26 PageID #: 239 Because the viability of this lawsuit rests upon that claim, federal abstention pending the conclusion and appeal, if any, of Davidson County Chancery Court Case No. 17-970-II is appropriate under both the Colorado River and Burford abstention doctrines.

As to the merits of Plaintiffs’ claims: They are lacking. Specifically, the Plaintiffs’ lawsuit against Mrs. Schipani must be dismissed for each of the following reasons:

First, the Plaintiffs have failed to state any cognizable claim under 42 U.S.C. § 1985 because they have not alleged any class-based, invidiously discriminatory animus.

Second, Mrs. Schipani must be dismissed from this lawsuit because she had no authority to deny The Parking Guys’ valet permit application and could not plausibly have produced the injury over which the Plaintiffs have sued.

Third, all claims filed by Déjà Vu of Nashville’s must be dismissed for lack of standing, because Déjà Vu of Nashville has not suffered any injury and remains free to have valet services provided at its establishment by any qualifying vendor.

Fourth, despite the Plaintiffs’ characterization of their claims, Mrs. Schipani has been sued for her speech. Accordingly, Plaintiffs’ lawsuit must be treated as a defamation claim, and it must satisfy the heightened constitutional requirements that govern defamation claims. Because it cannot do so, however, their Complaint must be dismissed for failure to state a claim.

Fifth, the Plaintiffs’ lawsuit must be dismissed for improper service of process.

Sixth, the Plaintiffs’ lawsuit against Mrs. Schipani must be dismissed—and Mrs. Schipani is entitled to recover her reasonable attorney’s fees and costs—because Mrs. Schipani is immune from this lawsuit under Tenn. Code Ann. § 4-21-1003(a).

II. Standard of Review

Mrs. Schipani’s Motion to Dismiss is subject to familiar standards of review:

-3-

Case 3:18-cv-00511 Document 18 Filed 07/13/18 Page 3 of 26 PageID #: 240 For purposes of a motion to dismiss, the Court must take all of the factual allegations in the complaint as true. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. Id. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Id. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. Id. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief. Id. at 1950. A legal conclusion couched as a factual allegation need not be accepted as true on a motion to dismiss, nor are recitations of the elements of a cause of action sufficient.

Stall v. Benningfield, No. 2:17-CV-0060, 2018 WL 3036312, at *1 (M.D. Tenn. June 18, 2018) (citing Fritz v. Charter Township of Comstock, 592 F.3d 718, 722 (6th Cir. 2010)).

“[T]he Court may also consider other materials that are integral to the Complaint, are public records, or are otherwise appropriate for the taking of judicial notice.” Sullivan v. Benningfield,

No. 2:17-CV-0052, 2018 WL 3020461, at *1 (M.D. Tenn. June 18, 2018) (citing Wyser-Pratte

Mgmt. Co., Inc. v. Telxon Corp., 413 F.3d 553, 560 (6th Cir. 2005)).

III. Argument

A. Mrs. Schipani is absolutely immune from this lawsuit based on the absolute privilege that applies to witness statements made during quasi-judicial and administrative proceedings.

Under federal law, “[i]t is well-settled that witnesses are granted absolute immunity from

suit for all testimony provided in judicial proceedings.” Spurlock v. Satterfield, 167 F.3d 995,

1001 (6th Cir.1999) (citing Briscoe v. LaHue, 460 U.S. 325, 330–31 (1983)). Tennessee law—

which governs this action12—is equally clear on the matter. Wilson v. Ricciardi, 778 S.W.2d 450,

453 (Tenn. Ct. App. 1989) (“It is a well-settled proposition of law in [Tennessee] that the testimony of a witness given in a judicial proceeding is absolutely privileged.”); Jones v. State, 426 S.W.3d

50, 57 (Tenn. 2013) (“[s]tatements made in judicial proceedings are absolutely privileged.”).

Of note, the absolute witness privilege “also applies to statements made by witnesses in

12 See infra, Section III-C-4 (arguing that Plaintiffs’ claims must be treated as state-law defamation claims). -4-

Case 3:18-cv-00511 Document 18 Filed 07/13/18 Page 4 of 26 PageID #: 241 the course of judicial proceedings.” Myers v. Pickering Firm, Inc., 959 S.W.2d 152, 159 (Tenn.

Ct. App. 1997) (emphasis added). See also Lambdin Funeral Serv., Inc. v. Griffith, 559 S.W.2d

791, 792 (Tenn. 1978) (holding that the absolute privilege extends beyond testimony to statements

made “in the course of a judicial proceeding that are relevant and pertinent to the issues involved

. . . .”).13 Further, given Tennessee’s strong public policy interest in having witnesses be able to

speak freely without fear of retaliatory lawsuits like this one, Tennessee courts “extend the doctrine

to communications preliminary to proposed or pending litigation” as well. Myers, 959 S.W.2d at

161 (emphasis added).

The Plaintiffs themselves allege that the statements over which they have sued Mrs.

Schipani concerned The Parking Guys’ valet permit application and were also made: (1) while testifying at a Traffic and Parking Commission hearing on The Parking Guys’ permit application;

(2) during the course of the Commission’s proceedings on that application; or (3) preliminary to those proceedings.14 Thus, the only remaining question is whether the Metro Nashville Traffic and Parking Commission’s official proceedings qualify for the absolute witness privilege.

That question is easily answered in the affirmative. Under Tennessee law, both quasi-

judicial proceedings and administrative proceedings clothe witnesses with absolute immunity from

13 The absolute privilege is commonly invoked in reference to defamation lawsuits. See, e.g., Jones v. State, 426 S.W.3d 50, 57 (Tenn. 2013) (“‘It is generally recognized that statements made in the course of a judicial proceeding that are relevant and pertinent to the issues involved are absolutely privileged and cannot be the predicate for liability in an action for libel, slander, or invasion of privacy.’”) (quoting Lambdin Funeral Serv., Inc. v. Griffith, 559 S.W.2d 791, 792). However, the Tennessee Supreme Court has “recognized the extension of the absolute privilege to causes of action other than actions for defamation, and cases from other jurisdictions support such an extension.” See Myers v. Pickering Firm, Inc., 959 S.W.2d 152, 162 (Tenn. Ct. App. 1997). This extension includes conspiracy claims. See Farley v. Clayton, 928 S.W.2d 931, 935 (Tenn. Ct. App. 1996) (dismissing conspiracy claims based on “the witness immunity doctrine.”).

14 Doc. #1 (Complaint), PageID #9, ¶ 40 (referencing statements made “[p]rior to and at the meeting”); ¶ 41 (referencing statements made “to support the denial of this valet parking”); PageID ##10-11, ¶ 44 (referencing photographs sent in support of permit denial); PageID #12, ¶ 50 (referencing “testimony in opposition to the Parking Guys being granted a Valet Permit” that Mrs. Schipani provided “[a]t the Commission’s July 10, 2017 Hearing”); PageID #16, ¶ 61 (referencing information presented “to the Commission” in order to support “denial of the requested Valet Permit”); ¶¶ 62-63 (referencing an email “requesting that the Commission deny the Parking Guys [the] requested Valet Permit” that purportedly contained false statements). -5-

Case 3:18-cv-00511 Document 18 Filed 07/13/18 Page 5 of 26 PageID #: 242 suit. See Boody v. Garrison, 636 S.W.2d 715, 716 (Tenn. Ct. App. 1981) (“[i]n this jurisdiction

the absolute privilege [applies to] judicial and quasi-judicial proceedings”); Lambdin, 559 S.W.2d at 792 (holding that the absolute privilege applicable to witnesses “also holds true in administrative proceedings before boards or commissions . . . .”). Here, the Traffic and Parking Commission performed both a quasi-judicial function and conducted a formal administrative proceeding, bringing its proceedings within the ambit of the absolute witness privilege.

Tennessee law specifically provides that when a commission holds a hearing, applies law to fact to reach a decision, creates a record of the proceeding, and issues a determination without the need for approval from another governmental body, it performs a quasi-judicial function. See

McFarland v. Pemberton, 530 S.W.3d 76, 104 (Tenn. 2017) (“The Commission applied existing law to the facts at hand to reach a decision, created a record of the proceeding, and issued a determination that authorized the Commission to certify the ballots without requiring approval of the board's decision from another government body. For these reasons, we find the hearing was quasi-judicial.”). All of these actions occurred in the instant case.15 Accordingly, the

Commission’s proceedings were quasi-judicial in character. See id. Moreover, even if the

Commission’s actions were considered purely administrative, the absolute privilege that applies

to witness statements “holds true in administrative proceedings before boards or commissions” as

well. Lambdin, 559 S.W.2d at 792.

Because the Traffic and Parking Commission’s proceedings were both quasi-judicial and

administrative, the absolute privilege applies to any statement made by Mrs. Schipani during the

course of them. Boody, 636 S.W.2d; Lambdin, 559 S.W.2d at 792 (“The underlying basis for the

grant of the privilege is the public's interest in and need for a judicial process free from the fear of

15 Doc. #1-19 (Transcript of July 10 Hearing); Doc. #1-25 (Transcript of August 14 Hearing). -6-

Case 3:18-cv-00511 Document 18 Filed 07/13/18 Page 6 of 26 PageID #: 243 a suit . . . based on statements made in the course of a judicial or quasi-judicial proceeding.”). See also id. (noting that the absolute privilege “‘extends also to the proceedings of many administrative officers such as boards and commissions, so far as they have powers of discretion in applying the law to the facts which are regarded as judicial, or ‘quasi-judicial’ in character.’” (quoting Prosser,

Law of Torts, 3d Ed. 1964, 799). As such, Mrs. Schipani’s statements are protected by absolute immunity, and the Plaintiffs’ claims against her must be dismissed with prejudice.

B. This Court should decline to exercise subject matter jurisdiction pursuant to the Colorado River and Burford abstention doctrines.

This Court should independently decline to exercise its subject matter jurisdiction to

adjudicate this case because an overlapping lawsuit based on the same essential facts and claims

is currently pending in state court. The claims set forth in the Plaintiffs’ Complaint turn upon their contentions that “there was and is no factual basis” for denying The Parking Guys a valet permit to service Déjà Vu16 and that the Traffic and Parking Commission’s denial was “improper.”17 If,

however, the Traffic and Parking Commission instead denied The Parking Guys’ valet permit

application properly, then the instant lawsuit is not even theoretically sustainable. Critically,

whether The Parking Guys’ valet permit application was denied improperly and based on improper influence are also questions that have been adjudicated and are approaching final judgment in a

parallel state court proceeding that is currently pending in Davidson County Chancery Court.18

The Parking Guys’ initiating documents in Davidson County Chancery Court Case No. 17-

970-II are appended as exhibits to the Plaintiffs’ Complaint.19 Its pleadings and briefing in

16 Doc. #1 (Complaint), PageID #18, ¶ 69 (“The Minutes of the Meeting of the Traffic and Parking Commission for August 14, 2017 (Exhibit 22), demonstrate that there was and is no factual basis to deny the appeal.”).

17 Doc. #1 (Complaint), PageID #20, ¶¶ 79-81.

18 See Exhibit 1 (Order Denying Certiorari).

19 Doc. #1-26 (Petition for Writ of Certiorari); Doc. #1-27 (Chancery Court Order providing for filing of administrative record); Doc. #1-28 (Amended Petition for Writ of Certiorari). -7-

Case 3:18-cv-00511 Document 18 Filed 07/13/18 Page 7 of 26 PageID #: 244 Davidson County Chancery Court Case No. 17-970-II also make clear that its state lawsuit is

premised upon the same essential facts and claims alleged in the instant case.20 The most recent

hearing in Case No. 17-970-II was held on June 20, 2018.21 On July 6, 2018, the Chancery Court

affirmed the Commission’s decision to deny The Parking Guys a valet permit in full.22

Given this context, abstention is appropriate under both the Colorado River and Burford

abstention doctrines, and abstention will further the judiciary’s interest in wise judicial

administration. Allen v. McCurry, 449 U.S. 90, 101, n. 17 (1980) (“Abstention[’s] . . . purpose is

to determine whether resolution of the federal question is even necessary . . . . ”). This Court

should abstain from exercising its subject matter jurisdiction accordingly.

1. Colorado River Abstention

Pursuant to the “[Supreme] Court’s decision in Colorado River Water Conservation Dist.

v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976), a federal court may, in

certain limited circumstances, decline to adjudicate a claim that is already the subject of a pending

state-court case.” RSM Richter, Inc. v. Behr Am., Inc., 729 F.3d 553, 556 (6th Cir. 2013). “Stay

orders based on Colorado River effectively end the litigation in federal court, because the district

court would be bound, as a matter of res judicata, to honor the state court's judgment.” Id.

(quotation omitted).

Under Colorado River abstention, “a court may stay a federal case ‘due to the presence of

a concurrent state proceeding for reasons of wise judicial administration.’” Int'l Forest Prod.

Corp. v. West, No. 3:11-0120, 2011 WL 4056036, at *7 (M.D. Tenn. Aug. 8, 2011), report and

20 See generally Doc. 1-26; Exhibit 2 (The Parking Guys’ Memorandum in Support of Petition for a Writ of Certiorari); Exhibit 3 (The Parking Guys’ Reply Brief).

21 Exhibit 4 (Hearing on The Parking Guys’ Petition for a Writ of Certiorari).

22 See Exhibit 1 (Order Denying Certiorari). -8-

Case 3:18-cv-00511 Document 18 Filed 07/13/18 Page 8 of 26 PageID #: 245 recommendation adopted, No. 3:11-0120, 2011 WL 4063035 (M.D. Tenn. Sept. 13, 2011)

(quoting Colorado River, 424 U.S. at 818). “Analysis under Colorado River is composed of two parts: first, the court must determine that the concurrent state and federal actions are actually parallel, and, second, the court must weigh the multiple factors identified by the Supreme Court in

Colorado River, 424 U.S. at 818–19, and Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp.,

460 U.S. 1, 23–26, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983).” Id.

Here, the concurrent state and federal actions are indisputably parallel. Both lawsuits are presently pending, the claims in Davidson County Chancery Court Case No. 17-970-II are predicated upon the same allegations and the same material facts, the injuries alleged arise out of the very same administrative decision, and all parties to Davidson County Chancery Court Case

No. 17-970-II are parties to this case.23 See Preferred Care of Delaware, Inc. v. VanArsdale, 676

F. App'x 388, 393 (6th Cir. 2017) (“so long as ‘the parties are substantially similar,’ and the claims

raised in both suits are ‘predicated on the same allegations as to the same material facts,’ the two actions will come close enough to count as parallel.”) (quoting Romine v. Compuserve Corp., 160

F.3d 337, 340 (6th Cir. 1998)). Cf. Warner v. Greenebaum, Doll & McDonald, 104 F. App'x 493,

496 (6th Cir. 2004). Accordingly, the two actions are “actually parallel.” Int'l Forest Prod. Corp.,

2011 WL 4056036, at *7.

Turning to the second step of the analysis, all eight Colorado River/Moses H. Cone factors favor abstention. To determine whether to abstain, this Court considers:

(1) whether the state court has assumed jurisdiction over any res or property; (2) whether the federal forum is less convenient to the parties; (3) avoidance of piecemeal litigation; (4) the order in which jurisdiction was obtained; (5) whether the source of governing law is state or federal; (6) the adequacy of the state court action to protect the federal plaintiff's

23 See generally Exhibit 2 (The Parking Guys’ Memorandum in Support of Petition for a Writ of Certiorari); Exhibit 3 (The Parking Guys’ Reply Brief). The Parking Guys’ state proceeding similarly challenges the propriety of the Traffic and Parking Commission’s decision as having been based on “improper influence” and “ulterior motives.” Exhibit 2, pp. 2, 20. -9-

Case 3:18-cv-00511 Document 18 Filed 07/13/18 Page 9 of 26 PageID #: 246 rights; (7) the relative progress of the state and federal proceedings; and (8) the presence or absence of concurrent jurisdiction.

PaineWebber, Inc. v. Cohen, 276 F.3d 197, 206 (6th Cir. 2001) (cleaned up).

As to the first factor—whether the state court has assumed jurisdiction—Davidson County

Chancery Court has plainly assumed jurisdiction over The Parking Guys’ claim that its valet permit was denied unlawfully, and it has already ruled on it.24

With respect to the second factor—whether the federal forum is less convenient to the

parties—the federal forum is significantly less convenient to the parties. Litigating in this forum

will require unnecessary and inconvenient duplication of previously adjudicated issues of both law and fact—including but not limited to disputes regarding discovery.25 As such, the second

Colorado River factor favors abstention as well.

As to the third and “paramount” Colorado River factor—avoidance of piecemeal

litigation—abstention will assuredly avoid piecemeal litigation. See Preferred Care of Delaware,

676 F. App'x at 395 (“The third and ‘paramount’ factor in Colorado River—avoiding piecemeal

litigation—supports abstention here, because, without abstaining, the district court would

necessarily have to litigate the same issue resolved by the state trial court and now under

consideration by the state intermediate court”). If the Davidson County Chancery Court’s ruling

that The Parking Guys’ valet permit was denied properly and was not the basis of any “improper

influence” or conspiracy is affirmed,26 then those findings will carry preclusive effect in the instant

case.27 See George v. Hargett, 879 F.3d 711, 718 (6th Cir. 2018) (“The preclusive effect of the

24 Doc. #1-27 (Order Assuming Jurisdiction), PageID #189; Exhibit 1 (Order Denying Certiorari).

25 See Exhibit 5 (Chancery Court Discovery Order). See also Exhibit 1 (Order Denying Certiorari).

26 See Exhibit 2 (The Parking Guys’ Memorandum in Support of Petition for a Writ of Certiorari), p. 2.

27 The Parking Guys made an England reservation in state court. See Exhibit 2, pp. 2-3. Even if this reservation were read to foreclose claim preclusion, however, see DLX, Inc. v. Kentucky, 381 F.3d 511, 523 (6th Cir. 2004), “issue -10-

Case 3:18-cv-00511 Document 18 Filed 07/13/18 Page 10 of 26 PageID #: 247 state court's decision in this federal litigation is governed by Tennessee law.”); Jackson v. Smith,

387 S.W.3d 486, 491 (Tenn. 2012) (addressing collateral estoppel under Tennessee law).

Alternatively, if an appeal results in a determination that The Parking Guys’ valet permit was

denied improperly, then that decision will bind the Traffic and Parking Commission and provide

The Parking Guys a significant portion of the relief that they are seeking through the instant action.

Consequently, regardless of its ultimate ruling, the state proceeding will resolve—one way or another—The Parking Guys’ essential claim that its valet permit application was subject to an

“improper denial.”28 It is wholly unnecessary for this Court to duplicate that effort. Indeed, doing so would constitute “the very definition of creating piecemeal litigation—where ‘different courts adjudicate the identical issue, thereby duplicating judicial effort and potentially rendering conflicting results[.]’” Preferred Care of Delaware, 676 F. App'x at 395 (quoting Romine, 160

F.3d at 341). Accordingly, the “paramount” third factor favors abstention as well. Id.

As to the fourth factor—the order in which jurisdiction was obtained—this factor heavily favors abstention as well. Jurisdiction was obtained in Davidson County Chancery Court Case

No. 17-970-II on September 8, 2017.29 By contrast, federal jurisdiction was not obtained until

June 1, 2018—nearly nine (9) months later.30 Consequently, this factor, too, favors abstaining pending the outcome of the state court proceeding.

Turning to the fifth factor—whether the source of governing law is state or federal—

Plaintiffs themselves note that the source of governing law is “Chapter 12.41 of the Code of the

preclusion ordinarily bars relitigation of an issue of fact or law raised and necessarily resolved by a prior judgment.” Bravo-Fernandez v. United States, 137 S. Ct. 352, 358 (2016).

28 Doc. #1 (Complaint), PageID #20, ¶¶ 79-81.

29 Doc. #1-27 (Chancery Court Order Assuming Jurisdiction), PageID #189.

30 Doc. #1 (Complaint). -11-

Case 3:18-cv-00511 Document 18 Filed 07/13/18 Page 11 of 26 PageID #: 248 Metropolitan Government of Nashville and Davidson County, Tennessee.”31 The Traffic and

Parking Commission’s decisions under Chapter 12.41 are also reviewable as a matter of right under

state law; as the Plaintiffs correctly observe, the Commission’s decision here is presently subject

to review in state court “pursuant to T.C.A. § 27-9-101” based on “both a statutory and in the

alternative a common law writ of certiorari.”32 Separately, this case also implicates state law principles of immunity and must be treated as a state-law defamation claim.33 Consequently, the

fifth Colorado River factor favors abstention as well.

The sixth factor—the adequacy of the state court action to protect the Plaintiffs’ federal

rights—also favors abstention. Tennessee’s courts are fully empowered to review questions of federal law. See Robinson v. Whisman, No. M2011-00999-COA-R3CV, 2012 WL 1900551, at *5

(Tenn. Ct. App. May 24, 2012) (adjudicating claims filed “pursuant to 42 U.S.C. §§ 1983 and

1985(3)”). Further, given that the instant action alleges violations of administrative law, the

Plaintiffs’ federal rights arguably are not implicated. See, e.g., Occupy Nashville v. Haslam, 769

F.3d 434, 445, n. 19 (6th Cir. 2014) (“To the extent the District Court may have considered a violation of state administrative law to amount to a constitutional violation under § 1983, Occupy

Nashville, 949 F.Supp.2d at 797, such an analysis was improper. This Circuit has clearly stated that ‘noncompliance with state laws and administrative procedures does not state a claim under §

1983,’ because ‘even if implemented in violation of state law, a policy may satisfy the dictates of the [Constitution].’”) (alterations omitted) (quoting Boswell v. Mayer, 169 F.3d 384, 390 (6th

Cir.1999)). Consequently, this factor favors abstention as well.

As to the seventh factor—the relative progress of the state and federal proceedings—this

31 Doc. #1 (Complaint), PageID ##4-5, ¶¶ 13-19.

32 Doc. #1-26 (Petition for Writ of Certiorari), PageID #170.

33 See supra, Section III-A; infra Section III-C-4. -12-

Case 3:18-cv-00511 Document 18 Filed 07/13/18 Page 12 of 26 PageID #: 249 case is barely at its inception, while the state case is nearly final.34 Accordingly, this factor, too,

favors abstention.

Last, the eighth and final factor—the presence or absence of concurrent jurisdiction—

favors abstention as well. “[S]tate courts retain concurrent jurisdiction with the federal courts over

claims arising under federal law unless the United States Congress has withdrawn that jurisdiction

with respect to a particular claim.” Vedder v. N. Am. Mortg. Co., No. M2003-01682-COA-R3CV,

2004 WL 2731823, at *2 (Tenn. Ct. App. Nov. 30, 2004). Both 42 U.S.C. § 1983 claims and 42

U.S.C. § 1985 claims are fully cognizable in Tennessee state court. See Robinson, 2012 WL

1900551, at *5 (adjudicating plaintiff’s § 1983 and § 1985 claims). Tennessee’s courts also have

never hesitated to provide relief under federal law when such relief is appropriate. See, e.g.,

Anderson v. Metro. Gov't of Nashville & Davidson Cty., Davidson Cty. Cir. Ct. Case No. 15C3212

(finding liability and awarding substantial fee award on § 1983 claim). Consequently, the final

factor of the Colorado River analysis favors abstention as well.

In sum: there is a pending, parallel state proceeding involving consideration of the same

facts and claims presented in the instant case, and all eight Colorado River factors favor abstention.

As such, this Court should decline to exercise its subject matter jurisdiction, and Plaintiffs’

Complaint should be dismissed pursuant to Rule 12(b)(1). See B.D. ex rel. S.D. v. Dazzo, No. 11-

15347, 2012 WL 2711457, at *7 (E.D. Mich. July 9, 2012).

2. Burford Abstention

Federal abstention is also appropriate pursuant to Burford v. Sun Oil Co., 319 U.S. 315

(1943). Burford abstention is implicated where review of administrative proceedings is available under state law, and where the exercise of federal review would interfere with state-level efforts

34 See Exhibit 1 (Order Denying Certiorari). -13-

Case 3:18-cv-00511 Document 18 Filed 07/13/18 Page 13 of 26 PageID #: 250 to establish coherent policies on matters of public concern. “The Supreme Court has []

summarized Burford abstention as follows:

Where timely and adequate state-court review is available, a federal court sitting in equity must decline to interfere with the proceedings or orders of state administrative agencies: (1) when there are “difficult questions of state law bearing on policy problems of substantial public import whose importance transcends the result in the case then at bar”; or (2) where the “exercise of federal review of the question in a case and in similar cases would be disruptive of state efforts to establish a coherent policy with respect to a matter of substantial public concern.”

Saginaw Hous. Comm'n v. Bannum, Inc., 576 F.3d 620, 625–26 (6th Cir. 2009) (quoting New Orleans Pub. Serv., Inc. v. Council of City of New Orleans, 491 U.S. 350, 361 (1989)).

Here, the second Burford prong is implicated and fully established. In filing this case, the

Plaintiffs call upon this Court to sit in equity,35 and they invite federal review of an administrative

proceeding that is subject to timely and adequate state-court review.

Significantly, the local administrative proceeding that is the subject of state-court review also involves a matter of substantial and highly localized public concern: Traffic flow on public thoroughfares. It goes without saying that if every local permitting decision made by Metro

Nashville’s Traffic and Parking Commission were subject to federal review, then no coherent traffic and parking policy or city planning could ever take place. Accordingly, this case calls for

the exercise of Burford abstention, this Court should decline to exercise its subject matter

jurisdiction, and Plaintiffs’ Complaint should be dismissed under Rule 12(b)(1).

C. Plaintiffs’ claims against Linda Schipani must be dismissed pursuant to Rule 12(b)(6); Rule 12(b)(1); and Rule 12(b)(5).

1. The Plaintiffs have failed to state a claim under 42 U.S.C. § 1985 because they have not alleged any class-based, invidiously discriminatory animus.

The Plaintiffs’ 42 U.S.C. § 1985 claim must be dismissed for failure to state a claim

35 Doc. #1 (Complaint), PageID #21 (seeking, inter alia, declaratory relief and “[a]ll equitable and general relief to which the Plaintiffs are entitled”). -14-

Case 3:18-cv-00511 Document 18 Filed 07/13/18 Page 14 of 26 PageID #: 251 because they have failed to allege a threshold element of a § 1985 claim: Class-based, invidiously discriminatory animus. As the Sixth Circuit has explained: “The Supreme Court requires that §

1985 claims contain allegations of ‘class-based, invidiously discriminatory animus.’” Webb v.

United States, 789 F.3d 647, 672 (6th Cir. 2015) (quoting Griffin v. Breckenridge, 403 U.S. 88,

102, 91 S.Ct. 1790 (1971)). Further, “[t]he class must be based upon race or other ‘inherent personal characteristics.’” Id. (quoting Browder v. Tipton, 630 F.2d 1149, 1150 (6th Cir. 1980)).

See also Blankenship v. City of Crossville, No. 2:17-CV-00018, 2017 WL 4641799, at *4 (M.D.

Tenn. Oct. 17, 2017) (“the Sixth Circuit has repeatedly held that a plaintiff must also ‘allege that the conspiracy was motivated by racial, or other class-based, invidiously discriminatory animus.’

Moniz v. Cox, 512 Fed.Appx. 495, 499–500 (6th Cir. 2013) (collecting cases). Thus, ‘[t]o sustain a claim under section 1985(3), a claimant must prove both membership in a protected class and discrimination on account of it.’”) (quoting Smithers ex rel. Norris v. City of Flint, 602 F.3d 758,

765 (6th Cir. 2010)).

The Plaintiffs’ Complaint does not allege class-based, invidiously discriminatory animus.36

Thus, in addition to several other glaring problems with Plaintiffs’ 42 U.S.C. § 1985 claim,37 this

failure alone compels dismissal. Id. Accordingly, the Plaintiffs have failed to state a claim under

42 U.S.C. § 1985, and that claim—the only one asserted against Mrs. Schipani—must be dismissed

with prejudice.

2. Mrs. Schipani did not produce and could not have produced the injury alleged.

Mrs. Schipani must also be dismissed from this lawsuit because she could not plausibly

36 See generally Doc. #1 (Complaint).

37 Given that Plaintiffs received both notice and a hearing, the basis for their claim that their procedural Due Process rights were violated is unclear. Further, because there is no constitutional right to operate a valet service at Déjà Vu of Nashville, the basis for Plaintiffs’ substantive Due Process claim is a mystery. -15-

Case 3:18-cv-00511 Document 18 Filed 07/13/18 Page 15 of 26 PageID #: 252 have produced the injury over which the Plaintiffs have sued. The Plaintiffs allege that they were

injured by The Traffic and Parking Commission’s decision to deny The Parking Guys a valet

permit.38 Notably, the decision to approve or deny The Parking Guys’ valet permit was also subject

to the exclusive authority of that Commission and the Metropolitan Government generally.39

By contrast, Mrs. Schipani had no authority to adjudicate The Parking Guys’ permit

application whatsoever. Consequently, even taking the Plaintiffs’ claims as true, their essential

contention that “[i]n voting to deny The Parking Guys’ requested permit, the Commission

substituted the judgment of O’Connell, Schipani, and Molette for their own” does not give rise to

any claim against Mrs. Schipani.40 Significantly, the Davidson County Chancery Court has also

held as much already. See Exhibit 1 (Order Denying Certiorari), p. 20 (“the decision to deny this

permit was made by the Commission and not by those who spoke against the permit, including

Councilman O’Connell.”). Mrs. Schipani must be dismissed from this lawsuit accordingly.

3. Déjà Vu of Nashville has not been injured.

Déjà Vu’s claims must also be dismissed for lack of standing because Déjà Vu has not

suffered an injury. Déjà Vu bears the burden of establishing standing to maintain this action. See

Lyshe v. Levy, 854 F.3d 855, 857 (6th Cir. 2017) (“The plaintiff bears the burden of establishing standing.”). To do so, Déjà Vu “must establish that: (1) [It] has suffered an injury in fact that is

(a) concrete and particularized and (b) actual or imminent rather than conjectural or hypothetical;

(2) that there is a causal connection between the injury and the defendant's alleged wrongdoing; and (3) that the injury can likely be redressed.” Id. (citing Lujan v. Defs. of Wildlife, 504 U.S. 555,

38 Doc. #1 (Complaint), PageID #21.

39 See, e.g. Doc. #1-26 (Petition for Writ of Certiorari), Page ID #177-78. See also Exhibit 2 (The Parking Guys’ Memorandum in Support of Petition for a Writ of Certiorari), pp. 3-4.

40 Doc. #1 (Complaint), PageID #19, ¶ 75. -16-

Case 3:18-cv-00511 Document 18 Filed 07/13/18 Page 16 of 26 PageID #: 253 560–61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). The absence of standing represents a defect of this Court’s Article III subject matter jurisdiction that compels dismissal under Fed. R. Civ. P.

12(b)(1). Id.

Déjà Vu’s claims must be dismissed for lack of standing because Déjà Vu has not suffered

any cognizable injury. In the administrative proceedings at issue, The Parking Guys was the only

entity whose permit application was considered and then ultimately denied by the Traffic and

Parking Commission.41 Déjà Vu, for its part, was not a party to that proceeding, and it is not a

party to Davidson County Chancery Court Case No. 17-970-II as a result.42 Further, as recently

as June 20, 2018, Metro Nashville made clear that although The Parking Guys’ specific valet

permit application to service Déjà Vu had been denied, there is nothing whatsoever that prohibits

any other valet parking company from applying to service Déjà Vu instead.43

As such, Déjà Vu’s claims that it was injured by The Parking Guys’ permit denial and that

its First Amendment rights have been infringed are meritless. “Performance dance entertainment,”

to be sure, represents expressive conduct protected by the First Amendment.44 City of Erie v. Pap's

A.M., 529 U.S. 277, 289 (2000) (“nude dancing of the type at issue here is expressive conduct,

although we think that it falls only within the outer ambit of the First Amendment's protection.”).

However, the fact that the Traffic and Parking Commission denied The Parking Guys’ permit application has no bearing whatsoever on Déjà Vu’s right or ability to provide such “performance

41 Doc. #1-19 (Transcript of July 10 Hearing), p.3, PageID #104 (“The next item on the agenda is a bill of the denial of the valet zone on the east side of 15th Avenue North, north of Charlotte Pike, requested by The Parking Company, Inc. [sic].”).

42 Doc. #1-28 (Amended Petition for Writ of Certiorari).

43 Exhibit 4 (Hearing on The Parking Guys’ Petition for a Writ of Certiorari), p. 25, line 19–p. 26, line 2.

44 Doc. #1 (Complaint), PageID #2, ¶ 2 (“Deja Vu is engaged in the presentation of female performance dance entertainment to the consenting adult public. Such are protected speech and expression under the First and Fourteenth Amendments of the United States Constitution.”).

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Case 3:18-cv-00511 Document 18 Filed 07/13/18 Page 17 of 26 PageID #: 254 dance entertainment.”45 Consequently, Déjà Vu’s employees remain free to exercise their First

Amendment rights to pop it, lock it, roll it, and break it down to their hearts’ content regardless of

the Commission’s decision on The Parking Guys’ valet permit application. See, e.g., T. Pain, I’m

‘n Luv (Wit a Stripper) (Konvict/Jive/Zomba 2005), http://www.metrolyrics.com/im-in-love-with-

a-stripper-lyrics-t-pain.html. Déjà Vu is also free to have valet services provided by any entity

that actually satisfies the requirements of Metro Code § 12.41.030.46 Thus, Déjà Vu has not been

injured, and its claims must be dismissed for lack of standing.

4. The Plaintiffs’ Complaint fails to satisfy the heightened constitutional requirements that govern defamation claims.

Despite the Plaintiffs’ attempts to frame their lawsuit as a federal conspiracy claim, Mrs.

Schipani has been sued for her oral and written speech based on factual allegations that are

quintessentially representative of defamation claims. See, e.g., Doc. #1 (Complaint), PageID #12,

¶ 50 (alleging that “Schipani’s testimony included knowingly false statements that were known to

be false when made or that were made with reckless disregard to the truth . . . .”). Accordingly,

notwithstanding Plaintiffs’ own characterizations of their claims, precedent compels this Court to

treat Plaintiffs’ lawsuit against Mrs. Schipani as a common defamation claim, and their Complaint

must satisfy the heightened constitutional requirements that govern all defamation claims as a

result. See, e.g., Boladian v. UMG Recordings, Inc., 123 F. App'x 165, 169 (6th Cir. 2005) (citing

Hustler Magazine v. Falwell, 485 U.S. 46, 53 (1988) (“A party may not skirt the requirements of

defamation law by pleading another, related cause of action.”)); Moldea v. New York Times Co.,

22 F.3d 310, 319–20 (D.C. Cir. 1994) (“a plaintiff may not use related causes of action to avoid

the constitutional requisites of a defamation claim.”). Cf. Klayman v. Segal, 783 A.2d 607, 619

45 Id.

46 See Exhibit 4, p. 25, line 24 – p. 26, line 2. -18-

Case 3:18-cv-00511 Document 18 Filed 07/13/18 Page 18 of 26 PageID #: 255 (D.C. 2001). Id.

Defamation claims, of course, are governed by state law, which further calls this Court’s jurisdiction into question. See, e.g., Perry v. Monroe Co., No. 2:16-CV-10764, 2016 WL 895072,

at *2 (E.D. Mich. Mar. 9, 2016) (“Plaintiff's [§ 1983] claims for defamation and/or slander fail

because they are state law claims and do not involve the violation of any rights secured by the

federal Constitution or the laws of the United States.”). Even if exercising federal jurisdiction

were appropriate, however, the Plaintiffs’ Complaint is both untimely and does not overcome the

constitutional requisites of a defamation claim. It must be dismissed with prejudice as a result.

a. The claims against Mrs. Schipani for her spoken words are time-barred.

Plaintiffs’ federal civil rights claims under § 1983 and § 1985 “are governed by the state

personal injury statute of limitations.” Fox v. DeSoto, 489 F.3d 227, 233 (6th Cir. 2007). As such,

with respect to the purportedly “false” testimony that Mrs. Schipani gave on July 10, 2017,

Plaintiffs’ claims are time-barred by Tennessee’s six-month statute of limitations governing torts

premised upon spoken words. See Cawood v. Booth, No. E2007-02537-COA-R3-CV, 2008 WL

4998408, at *4 (Tenn. Ct. App. Nov. 25, 2008) (“if the actionable tort involves words, the statute of limitations is six (6) months”); Tenn. Code Ann. § 28-3-103; Ali v. Moore, 984 S.W.2d 224,

227, n. 6 (Tenn. Ct. App. 1998) (“The statute of limitations for slander is only six months and the discovery rule does not apply.”).

The statute of limitations that applies to every verbal statement that Mrs. Schipani made on July 10, 2017 expired on January 10, 2018. See id. However, this lawsuit was not filed until

June 1, 2018. See Doc. #1 (“Filed 06/01/18”). Accordingly, regardless of merit, all of the statements that Mrs. Schipani made at the Commission’s July 10, 2017 hearing—in other words,

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Case 3:18-cv-00511 Document 18 Filed 07/13/18 Page 19 of 26 PageID #: 256 nearly all of the statements over which she has been sued47—are time-barred. Cawood, 2008 WL

4998408, at *4, n. 6. Further, because Tennessee has adopted the single publication rule, so, too,

are all of her subsequent written statements repeating those statements. See generally Clark v.

Viacom Int'l Inc., 617 F. App'x 495, 503 (6th Cir. 2015) (citing Applewhite v. Memphis State Univ.,

495 S.W.2d 190, 193–94 (Tenn. 1973)).

b. Mrs. Schipani’s statements were constitutionally protected opinions that also could not have held the Plaintiffs up to public hatred, contempt or ridicule.

Plaintiffs’ claims also fail to satisfy the constitutional requirements that govern defamation claims. “[T]he Supreme Court of the United States has constitutionalized the law of libel and

[defamation].” Press, Inc. v. Verran, 569 S.W.2d 435, 440 (Tenn. 1978). See also Clark v. Viacom

Int'l Inc., 617 F. App'x 495, 507 (6th Cir. 2015); New York Times Co. v. Sullivan, 376 U.S. 254,

269 (1964). As a result, defamation claims are subject to heightened pleading standards, and they present several threshold questions of law that do not require deference to Plaintiffs’ characterizations of their own Complaint. Moman v. M.M. Corp., No. 02A01-9608-CV00182,

1997 WL 167210, at *3 (Tenn. Ct. App. Apr. 10, 1997) (“If the [allegedly defamatory] words are not reasonably capable of the meaning the plaintiff ascribes to them, the court must disregard the latter interpretation.”). See also Brown v. Mapco Express, Inc., 393 S.W.3d 696, 708 (Tenn. Ct.

App. 2012). Accordingly, “ensuring that defamation actions proceed only upon statements which may actually defame a plaintiff is an essential gatekeeping function of the court.” Pendleton v.

Newsome, 772 S.E.2d 759, 763 (Va. 2015) (internal quotation omitted).

With this “essential gatekeeping function” in mind, see id., “the issue of whether a communication is capable of conveying a defamatory meaning is a question of law for the court

47 See Doc. #1 (Complaint), PageID #12, ¶ 50. -20-

Case 3:18-cv-00511 Document 18 Filed 07/13/18 Page 20 of 26 PageID #: 257 to decide in the first instance . . . .” Brown, 393 S.W.3d at 708. See also Revis v. McClean, 31

S.W.3d 250, 253 (Tenn. Ct. App. 2000) (“Whether a communication is capable of conveying a

defamatory meaning is a question of law.”); McWhorter v. Barre, 132 S.W.3d 354, 364 (Tenn. Ct.

App. 2003) (quoting Memphis Publ'g Co. v. Nichols, 569 S.W.2d 412, 419 (Tenn. 1978) (“The

question of whether [a statement] was understood by its readers as defamatory is a question for the

jury, but the preliminary determination of whether [a statement] is ‘capable of being so understood

is a question of law to be determined by the court.’”)). If an allegedly defamatory statement is not

capable of being understood as defamatory as a matter of law, then a plaintiff’s complaint must be

dismissed for failure to state a claim. Id.

Further still, Tennessee has adopted several categorical bars that prevent claimed

defamations from being actionable, at least two of which independently control this case. First,

mere opinions enjoy constitutional protection under the First Amendment. Stones River Motors,

Inc. v. Mid-S. Pub.Cp., 651 S.W.2d 713, 722 (Tenn. Ct. App. 1983). As a result, “statements of

opinion or intention are not actionable.” McElroy v. Boise Cascade Corp., 632 S.W.2d 127, 130

(Tenn. Ct. App. 1982). Second, statements that are merely “annoying, offensive or embarrassing”

are not actionable. Davis v. Covenant Presbyterian Church of Nashville, No. M2014-02400-COA-

R9-CV, 2015 WL 5766685, at *3 (Tenn. Ct. App. Sept. 30, 2015) (quotation omitted), appeal

denied (Feb. 18, 2016). Based on these principles, none of the statements underlying Plaintiffs’

Complaint states a plausible claim for defamation as a matter of law.

i. The Parking Guys is bound by its contention that Mrs. Schipani offered mere “opinions”— which are not actionable—rather than assertions of fact.

Despite materially altering its position for purposes of this lawsuit, The Parking Guys has repeatedly argued that Mrs. Schipani offered mere “opinions” when communicating with the

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Case 3:18-cv-00511 Document 18 Filed 07/13/18 Page 21 of 26 PageID #: 258 Traffic and Parking Commission—rather than asserting actionable statements of fact.48 The

Commission itself made the same finding.49 Consequently, during its state court litigation, The

Parking Guys seized upon and cited that finding as a basis for discounting the weight of Mrs.

Schipani’s statements.50

Significantly, despite adopting a materially different position in its federal Complaint in

this case, the Parking Guys also argued that Mrs. Schipani’s statements were mere

“opinions” during the pendency of this lawsuit during oral argument at a hearing in state court

as recently as June 20, 2018.51 As a result, The Parking Guys’ consistent contention that Mrs.

Schipani offered mere “opinion” testimony constitutes a judicial admission by which The Parking

Guys is conclusively bound. See, e.g., Loftis v. Rayburn, No. M2017-01502-COA-R3-CV, 2018

WL 1895842, at *11 (Tenn. Ct. App. Apr. 20, 2018) (“‘a statement of counsel in pleadings or stipulation or orally in court is generally regarded as a conclusive, judicial admission . . . .’”)

(collecting cases). As such, dismissal follows as a matter of law, because “statements of opinion

. . . are not actionable.” McElroy, 632 S.W.2d at 130.

ii. No statement made by Mrs. Schipani can be construed as a “serious threat to the plaintiffs’ reputation.”

To provide substantial breathing room for free speech and unfettered commentary upon

issues of public importance, statements that are merely “annoying, offensive or embarrassing” are

48 See, e.g., Exhibit 3, p. 7 (arguing that “[t]he opinions supplied by the Valet Permit opponents at the August 14, 2017 Commission meeting were no different in character from those presented at the July 20, 2017 meeting . . . .”); id. (arguing that “[c]itizen opinions, even where sincere, are not material evidence.”)

49 See Doc. # 1-25 (Transcript of August 14, 2017 Hearing), p. 7, Page ID#152.

50 See Exhibit 3, p. 7 (emphasizing that “Chairperson Green characterized the opponents [sic] statements as ‘opinions’: ‘Are you all interested in hearing additional opinions from folks that we heard at the last meeting?’” [Doc. # 1-25, p. 7, Page ID#152.] ‘We heard a lot of opinions a month ago.’”).

51 See Exhibit 4, p. 8, lines 5-9 (“And the petitioner would characterize the testimony of the local business owners as ‘opinion on the ultimate issue of whether the valet operation was causing traffic concerns.’ And that’s been recognized in the case law not being substantial or material evidence.”). Id. at p. 8, lines 18-22. -22-

Case 3:18-cv-00511 Document 18 Filed 07/13/18 Page 22 of 26 PageID #: 259 not actionable. Davis, 2015 WL 5766685, at *3 (quotation omitted). Instead, “[f]or a communication to be [defamatory], it must constitute a serious threat to the plaintiff's reputation.

A [defamation] does not occur simply because the subject of a publication finds the publication annoying, offensive or embarrassing. The words must reasonably be construable as holding the plaintiff up to public hatred, contempt or ridicule. They must carry with them an element ‘of disgrace.’” Id. (quoting Davis v. The Tennessean, 83 S.W.3d 125 (Tenn. Ct. App. 2001)).

The statements made by Mrs. Schipani over which she has been sued do not come close to satisfying these standards. The Plaintiffs specifically complain that Mrs. Schipani stated:

1. “The valet operation was parking vehicles on her property.”52

2. “The valet operation [was] causing ‘traffic up and down the street.’”53

3. “The valet operation [was] ‘constantly’ parking in a manner that impedes vehicular

ingress and egress to her business’s parking lot.”54

4. “The neighborhood surrounding the valet permit operation ‘continues to witness

public safety hazards’ associated with the Parking Guys’ valet operation servicing Deja Vu;”55

5. “The Parking Guys’ valet operation servicing Deja Vu was somehow associated

with ‘two pedestrians hit by cars in the past two months.’”56

6. “‘The corner of Church Street and 15th is gridlock[ed] most nights.’”57

7. “[T]he [] gridlock at 15 Avenue North and Church Street was somehow associated

with Parking Guys’ valet operation servicing Deja Vu.”58

52 Doc. #1 (Complaint), PageID #12, ¶ 50(a).

53 Doc. #1 (Complaint), PageID #12, ¶ 50(b).

54 Doc. #1 (Complaint), PageID #12, ¶ 50(c).

55 Doc. #1 (Complaint), PageID #16, ¶ 63(a).

56 Doc. #1 (Complaint), PageID #16, ¶ 63(b).

57 Doc. #1 (Complaint), PageID #16, ¶ 63(c).

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Case 3:18-cv-00511 Document 18 Filed 07/13/18 Page 23 of 26 PageID #: 260 8. “[The] Parking Guys’ valet operation servicing Deja Vu was a cause of traffic

backing up from 15th Avenue north to Church Street ‘thus blocking the traffic light and no one

can move . . . .’”59 And:

9. “[P]hotographs attached to the email demonstrate traffic of safety concerns caused

by the Parking Guys’ valet operation servicing Deja Vu.”60

Self-evidently, none of these statements presents a “serious threat to the plaintiff's

reputation.” Davis, 83 S.W.3d at 128 (quotation omitted). Not one can “‘reasonably be

construable as holding the plaintiff up to public hatred, contempt or ridicule.’” Id. at 130 (quoting

Stones River Motors, Inc., 651 S.W.2d at 719). Rather, they are, at most, “‘annoying, offensive, or embarrassing.’” Davis, 2015 WL 5766685, at *4 (citing Brown, 393 S.W.3d at 708 (quoting

Kersey, 2006 WL 3953899, at *3)). Consequently, no statement uttered by Mrs. Schipani is capable of conveying a defamatory meaning as a matter of law, and the Plaintiffs’ Complaint must be dismissed with prejudice for failure to state a claim. See Brown, 393 S.W.3d at 708. See also

Loftis, 2018 WL 1895842, at *4-5.

D. The Plaintiffs’ Complaint should be dismissed for improper service of process.

The Plaintiffs’ Complaint must also be dismissed for improper service of process pursuant to Fed. R. Civ. P. 12(b)(5).61 Plaintiffs’ returned summons states—without any exhibit or

additional detail to speak of—that service was effected “via certified mail receipt on June 4, 2018,

signed on June 5, 2018 – received on June 11, 2018.” See Doc. #8, p. 2, PageID #217. This

58 Doc. #1 (Complaint), PageID #16, ¶ 63(d).

59 Doc. #1 (Complaint), PageID #16, ¶ 63(e).

60 Doc. #1 (Complaint), PageID #16, ¶ 63(f).

61 “[A]ctual knowledge of a lawsuit is not a substitute for proper service of process under Fed. R. Civ. P. 4.” See Rankin v. Jackson Madison Cty. Gen. Hosp., No. 117CV01050STAEGB, 2018 WL 934932, at *2 (W.D. Tenn. Feb. 1, 2018), report and recommendation adopted, No. 17-1050-STA-EGB, 2018 WL 934874 (W.D. Tenn. Feb. 16, 2018) (citing LSJ Investment Co., Inc. v. O.L.D., Inc., 167 F.3d 320, 322 (6th Cir. 1999)). -24-

Case 3:18-cv-00511 Document 18 Filed 07/13/18 Page 24 of 26 PageID #: 261 attempt at service does not comply with Fed. R. Civ. P. 4(e). See id. Plaintiffs also have the

burden of proving that Mrs. Schipani has been properly served. See Toncz v. Bank of Am., N.A.,

No. 3:12-1010, 2013 WL 1245746, at *4 (M.D. Tenn. Mar. 26, 2013), report and recommendation adopted, No. 3:12-1010, 2013 WL 1775505 (M.D. Tenn. Apr. 25, 2013) (“[T]he burden is on the

Plaintiff to show either that she has properly served the Defendants with process or, pursuant to

Rule 4(m), that there is good cause for her failure to serve the Defendants.”). Because Plaintiffs have not served Mrs. Schipani properly and cannot meet their burden of establishing proper service, however, this Court should exercise its discretion to dismiss the Plaintiffs’ Complaint pursuant to Fed. R. Civ. P. 12(b)(5). See Toncz, 2013 WL 1245746, at *4 (“Courts have broad discretion to dismiss an action that involves improper service.”) (collecting cases).

E. Mrs. Schipani is immune from suit under Tenn. Code Ann. § 4-21-1003(a).

In addition to enjoying absolute witness immunity from this lawsuit, see supra, Section III-

A, Mrs. Schipani is entitled to immunity pursuant Tenn. Code Ann. § 4-21-1003(a). Because Mrs.

Schipani’s eligibility for immunity requires factual determinations that are outside the four corners of the Plaintiffs’ Complaint, however, Mrs. Schipani retains her right to a hearing on her eligibility

for immunity under Tenn. Code Ann. § 4-21-1003(a) without converting the instant motion into a

Motion for Summary Judgment. She also preserves her claim for attorney’s fees and costs under

Tenn. Code Ann. § 4-21-1003(c) in the event that this action is dismissed on other grounds.

IV. Conclusion

For the foregoing reasons, Mrs. Schipani’s Motion to Dismiss should be GRANTED, the

Plaintiffs’ Complaint against her should be DISMISSED WITH PREJUDICE, and Mrs.

Schipani should be awarded her attorney’s fees and costs incurred in defending against this action

pursuant to Tenn. Code Ann. § 4-21-1003(a).

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Case 3:18-cv-00511 Document 18 Filed 07/13/18 Page 25 of 26 PageID #: 262 Respectfully submitted,

By: /s/ Daniel A. Horwitz______Daniel A. Horwitz, BPR #032176 1803 Broadway, Suite #531 Nashville, TN 37203 [email protected] (615) 739-2888

Counsel for Defendant Linda Schipani

CERTIFICATE OF SERVICE

I hereby certify that on this 13th day of July, 2018, a copy of the foregoing was served via USPS mail, postage prepaid, emailed, and/or sent via CM/ECF, to the following parties:

Matthew J. Hoffer Shafer & Associates, P.C. Lansing, MI 48906 [email protected]

Bob Lynch, Jr. Washington Square, Suite 316 222 Second Ave. North Nashville, TN 37201 [email protected]

Counsel for Plaintiffs

J. Brooks Fox Metropolitan Courthouse, Suite 108 P.O. Box 196300 Nashville, TN 37219 [email protected]

Counsel for Metro Government, The Traffic and Parking Commission, and O’Connell

By: /s/ Daniel A. Horwitz______Daniel A. Horwitz, Esq.

-26-

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IN THE CHANCERY COURT FOR THE TWENTIETH JUDICIAL DISTRICT DAVIDSON COUNTY, TENNESSEE

THE PARKING GUYS, INC., * * Petitioner, * * vs. * * Case No. 17-0970-II THE METROPOLITAN GOVERNMENT * OF NASHVILLE AND DAVIDSON * COUNTY TENNESSEE, acting by and * through the * THE TRAFFIC AND PARKING * COMMISSION, * * Respondent. * * Nashville, Tennessee * June 20, 2018 * * * * * * * * * * * * * * * * ** TRANSCRIPT OF HEARING BEFORE THE HONORABLE CHANCELLOR BILL YOUNG

Transcript of proceedings ______

Transcribed from digital files by: Laurie McClain 615-351-6293 [email protected]

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1 A P P E A R A N C E S 2

3 BOB LYNCH JR., ESQ. Washington Square, Suite 316 4 222 Second Avenue North Nashville, Tennessee 37201 5 615-255-2888

6 CATHERINE J. PHAM, ESQ. Metropolitan Attorney 7 Department of Law Metropolitan Courthouse 8 Suite 108 PO Box 196300 9 Nashville, Tennessee 37219 615-862-6348 10 MATTHEW J. HOFFER, ESQ. 11 Shafer & Associates, P.C. 3800 Capital City Boulevard 12 Suite 2 Lansing, Michigan 48906 13 517-886-6560 14

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1 COURT CLERK: We are here in the matter of Parking

2 Guys versus Metro.

3 THE COURT: Good morning, everyone.

4 MR. LYNCH: Good morning.

5 MR. HOFFER: Good morning.

6 MS. PHAM: Good morning.

7 THE COURT: Give me a second to kind of get

8 organized up here a little bit.

9 Let’s see, we’re here on the hearing on the

10 petitioner’s petition for a writ of certiorari, an appeal

11 from it looks like the Traffic and Parking Commission’s

12 decision to deny a valet permit.

13 Mr. Lynch, are you arguing, or is Mr. Hoffer?

14 MR. LYNCH: Mr. Hoffer is. I defer to his

15 expertise in this hearing--

16 THE COURT: All right.

17 MR. LYNCH: -- very much so.

18 THE COURT: Always happy to hear from you,

19 Mr. Lynch.

20 MR. LYNCH: Well, I appreciate that, Your Honor,

21 but I learned a long time ago to defer to those who are

22 somewhat--

23 THE COURT: Mr. Lynch--

24 MR. LYNCH: -- smarter than me.

25 THE COURT: -- I -- I -- I do the same thing, and

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1 so -- which is why I have this excellent staff over here who

2 keep me under control.

3 Go ahead, Mr. Hoffer, yeah, glad to hear from you.

4 MR. HOFFER: Thank you.

5 THE COURT: And welcome back to Tennessee.

6 MR. HOFFER: Thank you, Your Honor. Good to be

7 back.

8 Do I need to turn this on, or does it -- has me

9 already?

10 THE COURT: I think -- I think it’s on.

11 COURT CLERK: He’s on.

12 MR. HOFFER: Okay. Okay.

13 THE COURT: You’re good.

14 MR. HOFFER: Well, Your Honor, I -- I tried to be

15 as detailed as possible as I could in the briefing in this

16 matter, and I obviously welcome any -- any questions on the

17 matter that’s already been submitted.

18 We’re here on the Parking Commission’s decision to

19 deny the Parking Guys a valet permit on 15 th Avenue North to

20 serve the business at 1418 Church Street. The matter was

21 originally heard by the Parking Commission on July 10 th of

22 2018.

23 There the Commission heard from local businesses

24 that were opposed to the permit. They heard from Mr. Martin

25 who denied the allegations of the local businesses opposed

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1 to the permit.

2 And towards the end the hearing we heard from a

3 traffic engineer for Metro, Chip Knauf. And Chip Knauf,

4 after having heard the comments from the local business

5 owners and having reviewed the photographs that were

6 submitted said, “I just don’t have enough evidence on this

7 record to make a call on whether there’s any operational

8 concerns.”

9 The matter was motioned to be tabled for a month

10 by Commissioner Mitchell so that a supposed video from the

11 business owners and some more information could be gathered.

12 The matter was heard again on August 14 th of 2017.

13 At that hearing, they -- the Commission heard more evidence

14 of the same character in addition to the Collier Report,

15 which is a study commissioned by Metro to examine the effect

16 of the valet operation on traffic.

17 The Collier Report unequivocally and it seems

18 undisputably found no issues with the operation of the valet

19 at -- at 15 th Avenue North. However, despite this, it

20 appears the Commission was swayed by a letter from District

21 19 Councilman--

22 THE COURT: The report was limited to one week of

23 observation, is that correct?

24 MR. HOFFER: The video was taken over one week,

25 that’s correct. And then the actual tabulation was over one

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1 weekend. This--

2 THE COURT: Does the record reflect whether your

3 client knew that this -- that these folks were on site at

4 that time?

5 MR. HOFFER: The record reflects that the video

6 surveillance was to be done surreptitiously. The emails

7 between Schipani and Collier specifically referenced --

8 what’s the right term -- surreptitious or hidden video

9 recording. They showed where the video was--

10 THE COURT: So -- so that your client really did

11 not know what time they -- this consultant was going to be

12 on site looking at--

13 MR. HOFFER: Absolutely.

14 THE COURT: -- the activity.

15 MR. HOFFER: The record reflects that it was meant

16 to be not noticeable, and the record also reflects that

17 there’s no evidence that the Parking Guys knew that they

18 were being observed during that period -- at least any more

19 than they had been observed over the entire time.

20 Obviously during the entire two months apparently

21 video surveillance from local businesses is sufficient the

22 -- the general area of the valet. So certainly they -- they

23 knew through the entire period that they were being

24 surveilled, but they did not know that Metro specifically

25 was -- hired a professional engineer to examine their

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1 operation.

2 THE COURT: Okay. Mr. Hoffer, am I correct in --

3 in -- in looking at that administrative record and reviewing

4 the brief filed by Metro, it appears that during the two

5 hearings that were held that the -- one, two, three, four,

6 five -- six adjacent business owners and/or representatives

7 of those owners who appeared at the hearing and expressed

8 concerns about this valet parking permit and -- and also

9 offered testimony as to their own observations as to what

10 was happening when the valet was working, that there were

11 traffic issues associated with it -- is the Court correct in

12 that? And I’m discounting the councilman’s testimony at

13 this point, or his letter that was sent in.

14 MR. HOFFER: I would characterize, Your Honor, the

15 testimony of the local business owners as very generalized

16 testimony. There was generalized testimony that they had

17 concerns about the level of traffic. However, there was not

18 any specific testimony by the local business owners

19 connecting the operation of the valet to any traffic

20 concerns that were present.

21 And you know, in view -- reviewing all of the --

22 the photos, they’re in the record at 24 through 38, and 51

23 through 59, I’ve struggled to see in any way how the valet

24 operation is supposedly connected. And--

25 THE COURT: And indeed, I think one of the -- at

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1 the initial meeting one of these business owners indicated

2 he or she would bring video to the second and that video was

3 never introduced. Is that correct?

4 MR. HOFFER: That is correct, Your Honor.

5 And the petitioner would characterize the

6 testimony of the local business owners as “opinion on the

7 ultimate issue of whether the valet operation was causing

8 traffic concerns.” And that’s been recognized in the case

9 law not being substantial or material evidence.

10 THE COURT: They could -- and it seems several of

11 them did -- testify before the Commission below that they

12 had observed issues -- I mean, that they were owners of the

13 adjacent businesses and they -- they -- they had personally

14 observed problems arising from the valet, either from the

15 valet workers parking cars in lots that they weren’t

16 supposed to be working in, to traffic backing up on Church

17 Street which is adjacent to 15 th Avenue.

18 It seems to be more than just opinion, is it not?

19 It seems that these were personal observations of these

20 folks as to the impact on their own businesses.

21 MR. HOFFER: No, I would -- I would disagree with

22 that, Your Honor. The character of the testimony was that

23 there were traffic concerns and that there was the

24 assumption that those traffic concerns were somehow

25 associated with the operation of the valet, as opposed to

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1 just the general traffic that’s present on 15 th Avenue and

2 Church Street during those periods of time.

3 Mr. Roman in particular testified that there’s

4 1,000 people in the area on any given weekend. And simply

5 traffic drawn in by local businesses is not a justifiable

6 basis to deny a valet permit, nor does it provide a basis

7 that the operation of a valet would negatively impact the

8 traffic already present.

9 THE COURT: Wouldn’t the volume of -- of -- of

10 either pedestrians or traffic in the area, as testified to

11 by some of these businesses, validate perhaps the

12 Commission’s concern that putting a valet parking permit

13 here, given the level of persons in the area, the level of

14 traffic in the area, that this might cause a problem?

15 MR. HOFFER: No, Your Honor. The -- the very fact

16 that the -- that Metro has, by ordinance, provided for valet

17 operations is against the notion that valet is intrinsically

18 problematic, where there -- where there already exists

19 traffic.

20 And I think the -- the most material evidence --

21 or the only material evidence on the record is both the

22 tabulation by the Collier Report and Mr. Martin’s statement

23 that “we just don’t park enough cars to -- to cause

24 traffic.”

25 Over the course of the Collier Report, over the

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1 three days, the first day there was one maneuver -- which is

2 not one car back and forth, it’s simply one car being taken

3 one direction -- one maneuver every two minutes. On Friday

4 there was one maneuver every 12 minutes. On Saturday there

5 was one maneuver every 16 minutes.

6 So over the course of the entire study there was,

7 on average, one maneuver every 15 minutes.

8 THE COURT: I mean, the Collier Report -- and I’ll

9 ask Metro this question -- seems to indicate that there

10 would be no problem with this valet parking permit being

11 granted. Is that a correct assumption?

12 MR. HOFFER: That is correct, Your Honor. That’s

13 what the Collier Report says, and that’s how the Commission

14 and its -- and the Metro Traffic Engineer Chip Knauf and its

15 Officer Diane Marshall, that’s how -- how they all view the

16 Collier Report, is verifying or seeing that there was no

17 traffic concerns connected to the valet.

18 THE COURT: Thank you.

19 Let -- let me move in a little different

20 direction, Mr. Hoffer, in -- in reading the reply that --

21 that I received from -- on behalf of your client yesterday,

22 and looking on Page 2 -- and I think the second par --

23 second full paragraph -- it says: “In reviewing the

24 decision on the common law writ of certiorari, the Court’s

25 review is de novo.”

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1 And without presuming the lower tribunal’s finding

2 as correct, we’re not here on a de novo review, are we?

3 Isn’t this a review into the common law writ of certiorari

4 as opposed to the statutory writ of certiorari from a

5 judicial decision made by an administrative board, and

6 therefore it’s entitled to -- to deference?

7 MR. HOFFER: Well--

8 THE COURT: It’s not de novo, it’s not -- no -- a

9 new -- de novo proceeding is it?

10 MR. HOFFER: My understanding is that it’s -- it’s

11 not a de novo hearing in the sense that the evidence is all

12 presented in the first time, but it is a de novo review in

13 that there isn’t necessarily a presumption of correctness

14 that attaches to the decision below.

15 And it’s my understanding that your review of it

16 is to determine whether substantial evidence exists to

17 support the decision rather than to defer to the decision.

18 And in any event, the evidence has to be considered on -- on

19 the whole record, rather than what I would characterize is

20 -- is trying to cherry-pick specific facts.

21 THE COURT: Would you agree with me -- and here

22 I’m quoting from the Heyne v. Metropolitan Nashville Board

23 of Public Education decision that says at -- at -- here at

24 the Tennessee Court of Appeals site is -- it’s directing to

25 us as trial courts that “we have repeatedly cautioned that

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1 common law writ of certiorari does not authorize review in

2 court to evaluate the intrinsic correctness of a

3 governmental entity’s decision.”

4 Isn’t that the standard we’re here on today? that

5 the question is really: Was there material and substantial

6 evidence below that could have supported the Commission’s

7 decision? It’s not this Court’s authority to re-weigh the

8 evidence that was presented, but only to determine whether

9 the record has sufficient evidence, substantial evidence in

10 it to support the Commission’s decision?

11 MR. HOFFER: That is the standard, Your Honor.

12 THE COURT: And your -- your argument on behalf of

13 your clients is that’s just not there?

14 MR. HOFFER: Correct. That--

15 THE COURT: Okay.

16 MR. HOFFER: -- especially in reviewing the record

17 as the entire record, there isn’t the necessary specificity

18 from the citizen’s complaints to amount to substantial and

19 material evidence. And that’s reflected.

20 THE COURT: And I admit, your -- your brief does a

21 good job of making that argument.

22 Let me ask you this, Mr. Hoffer, today -- and this

23 is not in the record, but I -- the Court--

24 (Mr. Craig Martin enters courtroom.)

25 MR. LYNCH: Your Honor, my client is here. I --

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1 he’s willing to come up.

2 THE COURT: That’s no problem. Go ahead.

3 MR. LYNCH: (Unintelligible).

4 MR. CRAIG MARTIN: I was -- I was off on my time.

5 THE COURT: I’m happy to have your client with us,

6 Mr. Lynch.

7 MR. CRAIG MARTIN: I’m sorry, sir.

8 THE COURT: Happy to have you here, sir.

9 Am I correct that there is a parallel proceeding

10 pending over in Federal Court involving this matter?

11 MR. HOFFER: There is, Your Honor.

12 THE COURT: Does that impact this court proceeding

13 forward today?

14 MR. HOFFER: It does not, Your Honor.

15 THE COURT: Okay. Because as I understand that

16 proceeding -- it basically says that the Commission was

17 unduly influenced--

18 MR. HOFFER: Correct.

19 THE COURT: -- in making its decision over there.

20 Should the Court wait and see what the Federal Court does

21 with that before ruling on this one?

22 MR. HOFFER: No, Your Honor. Unfortunately,

23 that’s -- that’s never been the way it works. The -- you

24 know, the -- this proceeding proceeds on its own basis, and

25 the Federal Court proceeding, to the extent that there’s

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1 facts established here that may affect the Federal matter,

2 but the Federal matter does not affect this matter.

3 THE COURT: So your client is -- has no objection

4 to this Court proceeding forward with this proceeding?

5 MR. HOFFER: Not at all, Your Honor.

6 THE COURT: Just wanted to make sure that -- I did

7 not want to get in trouble with any of my Federal brethren

8 across the street, particularly my friends over there, who I

9 think one of them I went to law school with, I do not want

10 him upset with me.

11 MR. HOFFER: Certainly, Your Honor, I’m sure that

12 wouldn’t happen.

13 MR. THE COURT: Thank you, Mr. Hoffer.

14 Anything further? You have done a good job, you

15 and Mr. Lynch, both, as usual, briefing this one. And I

16 certainly understand your argument.

17 MR. HOFFER: Thank you, Your Honor. I’ll listen

18 to what Metro has to say and offer anything further I have

19 later.

20 THE COURT: Okay. Thank you, sir.

21 MR. HOFFER: We’ll be--

22 THE COURT: Yeah, you always have the last bite of

23 the apple.

24 Ms. Pham?

25 MS. PHAM: Good morning, Your Honor.

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1 THE COURT: Good morning. Always good to see you

2 as well.

3 MS. PHAM: I wanted to introduce our -- one of our

4 interns here. This is Richard Rosario (phonetic)--

5 MR. ROSARIO: Good morning, Your Honor.

6 MS. PHAM: -- sitting with me.

7 THE COURT: Good morning. Good to see you.

8 Happy--

9 MS. PHAM: A new face.

10 THE COURT: -- to have you with us.

11 MS. PHAM: He’s just--

12 MR. ROSARIO: Happy to be here.

13 MS. PHAM: He’s just finished his 1-L year at

14 Vandy, so...

15 THE COURT: Oh, good. That’s my alma mater, so I

16 hope you’re enjoying that first year of -- at law school,

17 right?

18 MR. ROSARIO: As much as you’re allowed to enjoy

19 it.

20 THE COURT: All right, yeah, that -- you aren’t

21 allowed to enjoy it very much. Believe me, it gets better

22 second year--

23 MS. PHAM: Yeah.

24 THE COURT: -- and much better third year.

25 MR. ROSARIO: That’s what we’re looking forward

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1 to.

2 THE COURT: I -- yeah, my -- my niece is beginning

3 her first year at Wake Forest, and I warned her it will not

4 be a pleasant prospect. So I know you’re glad to get to the

5 beginning of the end of that.

6 MS. PHAM: Certainly.

7 THE COURT: We’re -- we’re happy to have you here.

8 And I wish you the best going forward.

9 MR. ROSARIO: Thank you.

10 THE COURT: You’re certainly in a good place with

11 Metro. They do good work over there, a lot of interesting

12 work. So you’ll -- you’ll have a good experience there.

13 MS. PHAM: Yeah, I’m--

14 THE COURT: Go ahead, Ms. Pham.

15 MS. PHAM: I’m hoping this is interesting enough.

16 THE COURT: Well, you know, you could have had him

17 downstairs last night -- or I guess early this morning -- on

18 the budget hearings.

19 MS. PHAM: Oh, up into like the wee hours of the

20 morning, yes.

21 THE COURT: Twenty to 19; interesting.

22 MS. PHAM: Ah, well...

23 MR. LYNCH: I didn’t hear that, Your Honor, what

24 was said to -- 20 to 19? Did they pass it?

25 THE COURT: They -- the budget hearing--

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1 MR. LYNCH: Yes.

2 THE COURT: -- last night--

3 MR. LYNCH: Yeah.

4 THE COURT: -- 20 to 19, they were here in the

5 early wee hours of this morning.

6 MS. PHAM: The tax--

7 MR. LYNCH: What--

8 MS. PHAM: -- rate increase did not pass.

9 THE COURT: Tax rate increase did not pass.

10 MS. PHAM: -- but -- and lost by 20 to 19.

11 MR. LYNCH: I hate taxes.

12 THE COURT: This late--

13 MS. PHAM: It was a very, very close call.

14 THE COURT: Very close. I think the Vice Mayor

15 broke the 19-19 tie. It was, I--

16 MS. PHAM: I have no -- I have no personal

17 opinions on that.

18 THE COURT: Nor do I, Ms. Pham -- at least not --

19 not for public--

20 MS. PHAM: Not from up here. So--

21 THE COURT: Go ahead -- let me ask you this,

22 Ms. Pham.

23 MS. PHAM: Yes, sure.

24 THE COURT: And -- you have -- have also, as Metro

25 is -- always does, has done an excellent job briefing this

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1 one.

2 It seems like here the Commission delayed making a

3 decision to get to have a report done from Collier

4 Engineering. And then they met again. And would you agree

5 with me that the Collier -- Collier Engineering Report

6 showed that there would be no problems with granting this

7 valet permit?

8 MS. PHAM: I would agree to the extent that what

9 the Collier Engineering Report was, you know, limited to; it

10 did not cite any operational issues. But the Collier

11 Engineering Report itself limited itself by saying, “We

12 don’t know that this is typical activity.” And they only

13 analyzed three days, essentially, of activity--

14 THE COURT: And--

15 MS. PHAM: -- one weekend. And it wouldn’t show

16 just by the -- the sheer nature of what the report was. It

17 was -- essentially a camera set up looking at the valet

18 stand itself isn’t going to show things like where those

19 cars are being parked, whether the -- you know, the valet is

20 operating out -- out -- once you get away from the valet

21 stand, how are they operating.

22 THE COURT: But your--

23 MS. PHAM: And there’s -- a lot of the complaints

24 by the neighbors were related to things other than just what

25 happened at the--

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1 THE COURT: Right.

2 MS. PHAM: -- valet stand itself.

3 THE COURT: Should the Court be concerned about a

4 commission that delays making a decision in order to hire an

5 expert, an admitted expert, to review whether the valet

6 permit is appropriate, and then decides after hearing the

7 expert’s opinion even with its limitations decides to just

8 simply disregard it--

9 MS. PHAM: I don’t believe--

10 THE COURT: -- or not have it do a more detailed

11 result?

12 It seems like the -- the Commission here took --

13 took a break to get this information, and they got it. I

14 agree with you, it’s limited. But it seems like the

15 Commission, once they got it, if they thought it was limited

16 they should have ordered a more detailed report.

17 Or why -- why did they do it if they -- if they

18 were just going to ignore the results?

19 MS. PHAM: I don’t know that I would characterize

20 it -- what they did is “ignoring the results.” They looked

21 at that as -- at the -- I -- it -- and I think there’s a

22 pretty good quote in the record from the -- from the actual

23 -- from one of the commissioners where they essentially say,

24 you know, “We have this report, and then we have these

25 pictures and the testimony from the neighbors who are, you

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1 know, essentially eye witnesses from two months period of

2 time,” and they don’t really match. And so they had

3 contradictory evidence in front of them.

4 And then they have the councilperson who

5 essentially is coming down on the side of the neighbors,

6 essentially echoing the neighbors’ statements, and saying

7 that he has received the same sorts of complaints about

8 traffic issues and safety issues. And so they were

9 essentially saying “We have both sets of evidence here.”

10 So they didn’t necessarily disregard it, but they

11 came down ultimately in favor of the -- what the -- what the

12 neighbors’ testimony pointed towards.

13 THE COURT: And -- and -- and I understand they

14 did. It’s just--

15 MS. PHAM: And I under -- it is--

16 THE COURT: -- somewhat disconcerting that the

17 Commission--

18 MS. PHAM: Uh-huh.

19 THE COURT: -- would order an expert to go out

20 there and look at it in order to help the Commission reach

21 its decision. The expert comes back in -- and I think both

22 parties admit -- correct me if I’m wrong -- that the

23 expert’s view of this is: “No problem in granting this

24 valet permit.” And then the Commission goes a different

25 direction.

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1 And I understand the limitations. I -- I agree

2 with you, there are limitations to that report. But the

3 Commission could have dealt with those limitations and

4 ordered a more extensive view. Instead, they just denied

5 the permit. Am I correct?

6 MS. PHAM: Essentially, yes. They ultimately

7 determined that the evidence of the neighbors weighed more,

8 for them. And I -- I -- think that’s a reasonable--

9 THE COURT: And you -- and you agree with me that

10 the neighbors’ testimony -- I think they -- your -- your

11 opposition characterizes it as “vague” and “opinion,” but

12 that it really is eyewitness testimony as to potential

13 problems out there.

14 MS. PHAM: That’s--

15 THE COURT: Seemed like several of them indicated

16 that they’d observed issues that they were caused by the

17 valet stand. Is that correct?

18 MS. PHAM: Yes. And I -- I think that’s they--

19 that’s how I would characterize it, it is firsthand accounts

20 of the operations. And not just over three days, over two

21 months, because these same neighbors were -- many of them

22 were at the first meeting and then were also at the second

23 meeting. So there’s about two months of time of operation

24 that we have here where they were -- were, you know, giving

25 their observations about what happened.

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1 And much of what they stated was not just traffic

2 concerns. You know, they -- they had specific statements

3 about things that had happened at the time.

4 And I -- I can understand the perspective of “it’s

5 vague” and that there’s statements like “two pedestrians

6 have been hit in a two-month period.”

7 THE COURT: I mean, there’s no evidence in the

8 record that those pedestrian accidents were in any way

9 related to the valet.

10 MS. PHAM: But at the very least, I think what it

11 shows is that -- and Your Honor pointed this out -- there’s

12 a large volume of pedestrian traffic in this area, to where

13 the safety concerns are elevated, so that any backup of

14 traffic may actually be more detrimental to -- to safety in

15 this particular location.

16 And so I think that it’s still relevant,

17 regardless of whether -- now the -- the testimony of the --

18 I think the neighbor was “this valet stand caused the -- the

19 -- the pedestrian”...

20 THE COURT: Right.

21 MS. PHAM: I have no idea whether that’s true or

22 how he’s -- knew that, but that was his actual statement.

23 THE COURT: That doesn’t appear that they were --

24 that--

25 MS. PHAM: Yeah.

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1 THE COURT: I mean, he said that, I think it was a

2 he, but it doesn’t appear that there was any connection that

3 I could see from--

4 MS. PHAM: That we know of, yes.

5 THE COURT: -- the administrative record.

6 MS. PHAM: But there also is statements by the

7 neighbors that they were -- that cars were being -- the

8 valet stand was essentially parking all of the cars on

9 public streets, basically blocking neighboring business,

10 access to their own lots, causing visibility issues. Those

11 are things that the Collier Report would not pick up.

12 There was testimony that they were parking cars --

13 and there were photos -- in private lots that were

14 specifically designated as not for use by Deja Vu patrons or

15 by The Parking Guys, and yet they were -- that was being

16 done, which is not essentially compliant with how a valet

17 stand is supposed to operate.

18 THE COURT: Yeah, I guess -- I guess, Ms. Pham,

19 the Court’s concern -- and -- and I’ve addressed it to you

20 once, and I think you -- you pretty much have indicated it

21 might be a concern: If the Commission orders the study,

22 whether it becomes -- comes back and there are problems with

23 it, I understand that, but they didn’t -- they didn’t follow

24 up on it. They -- they pretty much just ignored it and --

25 and went with the neighbors’ concerns.

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1 And it -- it is a concern that a Commission would

2 delay making a decision to get and expert to come in and

3 look at it; expert comes in to look at it, and then they

4 just move on. I mean, I can understand why the plaintiff --

5 petitioner in this case is -- is -- is concerned about that.

6 MS. PHAM: Yes, I think it’s hard to reconcile

7 that. But I think the difference here is that the -- I

8 don’t know -- a traffic engineering study is limited just in

9 its -- what it is. They are -- you know, they’re looking at

10 traffic maneuvers specifically. They’re--

11 THE COURT: But obviously the Commission

12 considered it important to have that--

13 MS. PHAM: Yes.

14 THE COURT: -- or they wouldn’t have ordered the

15 study to be done. So they ordered a study to be done. It

16 comes back; it is what it is. It’s either if you argue de

17 facto for -- or not extensive enough, and rather than --

18 rather than asking the -- the expert to do more work on it

19 and then making a decision they just denied the permit.

20 I’m assuming the com -- the -- the -- The Parking

21 Guys here, the -- the petitioner could reapply for the

22 permit at any time in the future, could they not?

23 MS. PHAM: I don’t -- I was -- I actually asked

24 one of the attorneys at our office what her opinion on that

25 was -- who sits with the Commission. And I believe there

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1 may be -- I don’t know that The Parking Guys can reapply for

2 a permit at this location--

3 THE COURT: Are they bound?

4 MS. PHAM: -- because that would be the same

5 question that the board has already heard, not whether the

6 Commission can actually hear the exact same question.

7 Another--

8 THE COURT: But it would be a different--

9 MS. PHAM: A--

10 THE COURT: -- time, perhaps a different -- when

11 things have changed--

12 MS. PHAM: Maybe for a different location or a

13 different -- but if it’s the exact same scenario, I’m not

14 sure that they can. However, that would mean that--

15 THE COURT: And even if they could, they’d

16 probably get the same response, if -- if things -- all

17 things had remained the same, it--

18 MS. PHAM: Yes.

19 THE COURT: -- but if something’s changed, if

20 there’s additional expert testimony or perhaps traffic

21 patterns have changed, or like you say, it’s a different

22 location for a valet permit, then I’m assuming they could go

23 back.

24 MS. PHAM: Or if a different valet company--

25 THE COURT: Uh-huh.

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1 MS. PHAM: -- applied, that would be a completely

2 -- that would be a new hearing, because they--

3 THE COURT: Should it make any difference

4 regarding which--

5 MS. PHAM: It--

6 THE COURT: -- valet company?

7 MS. PHAM: I think it would depend. In this case

8 one of -- some of the allegations of the neighbors were that

9 this particular valet company was operating in a way that is

10 not appropriate. So if another valet company did not--

11 THE COURT: Are they licensed by Metro to operate

12 a valet?

13 MS. PHAM: Yes.

14 THE COURT: And is there any evidence in the

15 record that there’s been any action taken against their

16 license for inappropriate--

17 MS. PHAM: Not that I know of. And I -- I -- I

18 don’t think there has been.

19 But to -- the allegations in the record from the

20 neighbors are that the way this valet stand is being

21 operated or was being operated was inappropriate. So not

22 just that there’s a traffic concern, but also “they’re

23 parking cars in our private lots; they’re parking cars

24 blocking streets.” Not every valet stand -- the valet stand

25 does not necessarily need to be operated that way.

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1 THE COURT: Could be an indication there’s not

2 enough parking--

3 MS. PHAM: Yes.

4 THE COURT: -- available.

5 MS. PHAM: Could be an indication of that or it

6 could be an indication of bad behavior on this particular

7 valet operator; it’s unclear.

8 But essentially, I think the -- the -- the

9 question is is: This is a common law writ of cert and all

10 we have to look at is whether the Board acted arbitrarily or

11 whether the Board acted without material evidence,

12 substantial material evidence -- which is more than a

13 scintilla, which is a very low standard for Your Honor

14 looking at the evidence and this--

15 THE COURT: And in short, this -- this Court is

16 not to re-review or re-weigh the evidence, if indeed there’s

17 -- there’s anything in -- in the record that would support

18 the Commission’s decision, then the Commission wins.

19 And -- and that’s because this Court always defers

20 to the expertise and the administrative body. This -- this

21 Court is not the Traffic Commission; this Court doesn’t have

22 that expertise. And for that reason that’s why we have the

23 standard we have. Is that correct?

24 MS. PHAM: Yes. And essentially here, the -- the

25 Commission has weighed the evidence and they determined that

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1 the eyewitness testimony of the neighbors outweighed the

2 limited report that they had from the Collier Engineering

3 firm. And so they put more emphasis on that piece of

4 evidence.

5 And our position is that what the petitioner is

6 asking Your Honor to do is re-weigh the evidence and put

7 more emphasis on one piece of evidence over another.

8 THE COURT: And I guess the Court’s concern -- and

9 -- and I’ve addressed this, I’m beating a dead horse -- but

10 the Court’s concern is this Commission -- it wasn’t that the

11 Parking Guys, the petitioner came in with Collier

12 Engineering, that -- that -- that expert was selected by the

13 Commission intentionally to give them an independent review.

14 And -- and they obtained the independent review and didn’t

15 follow it.

16 MS. PHAM: Yes. And I think that that’s within

17 their discretion to do that. They -- you know, they can --

18 they can get -- they didn’t have to even ask for a review,

19 but they did and they -- as a -- so to -- to -- from our

20 perspective I think that shows that they really were looking

21 at the evidence--

22 THE COURT: Is it--

23 MS. PHAM: -- seriously.

24 THE COURT: Is it correct that the record shows at

25 the first commission meeting that -- I think -- one of the

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1 business owners indicated he was going to bring in video --

2 he or she -- was going to bring in video, but that that

3 video was never introduced into the record?

4 MS. PHAM: I -- I think what actually was said was

5 that there was video. It sounded like just from watching

6 the videos of the meetings and reading the record that he

7 believed that he had already given that evidence to

8 Public Works. I don’t know what -- we don’t have -- I don’t

9 have contact info -- I’m not in contact with the neighbors,

10 obviously.

11 THE COURT: But there’s no video in the record.

12 MS. PHAM: No. And my understanding was -- I -- I

13 checked with the -- with Public Works staff to make sure

14 that that wasn’t something that was reviewed by the

15 Commission. And for whatever reason, it was not; whether it

16 was because there was a misunderstanding or because the

17 video never existed, I don’t know. And they didn’t know.

18 So we -- we did not include it.

19 However, there were numerous photographs and

20 numerous--

21 THE COURT: Right.

22 MS. PHAM: -- letters and things of that nature

23 that were included and were reviewed by the Commission.

24 So -- and I -- I do want to point out and because

25 it -- I just want to make sure it’s -- it’s just out there,

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1 one other issue with this particular valet stand that

2 Councilman O’Conner [sic] pointed -- O’Connell pointed out

3 but did not -- it wasn’t that clear exactly what he was

4 talking about -- he mentioned that they were operating

5 without a permit in his letter. And essentially, if Your

6 Honor reviews the record, there were those temporary permits

7 which--

8 THE COURT: Right.

9 MS. PHAM: -- which Your Honor has already kind of

10 said--

11 THE COURT: Right.

12 MS. PHAM: -- you’re not sure about. But to the

13 extent that they were operating, at least everybody thought

14 they were operating legally when they had those temporary

15 permits, they didn’t actually have temporary permits for the

16 entire two-month period. The permits ran from June 14 th to

17 Jun3 23 rd --

18 THE COURT: Right.

19 MS. PHAM: -- then June 26 to July 2 nd , and then

20 July 19 th to July 25 th . So in fact, the Collier Engineering

21 Study took place when they were operating without permits.

22 THE COURT: But again, not -- not really relevant

23 to what Collier was doing at that time.

24 MS. PHAM: Not to Collier. But what it shows is

25 essentially in the record it does say at the end of the last

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1 meeting Mr. Knauf was very clear with the Commission that

2 they would need to come, that -- that The Parking Guys would

3 need to come and get new temporary permits.

4 THE COURT: Right.

5 MS. PHAM: And that was essentially not done, so

6 they continued to operate without permits. And so it’s just

7 -- it’s -- it’s more sort of evidence of essentially maybe

8 not operating within the best behavior to the extent that it

9 is. But I did want to make sure that was clear because that

10 is something the Mr. O’Connell brought up in his letter.

11 But ultimately our position is it’s not arbitrary

12 to rely on eyewitness testimony from multiple very closely

13 -- very close property owners. And it’s not -- it’s -- it’s

14 definitely more than a scintilla of evidence that was

15 presented to the Commission to support their decision.

16 And there hasn’t been any evidence that there --

17 the fact that they weighed the evidence one way or another

18 was somehow due to some sort of inappropriate influence, or

19 an improper motive.

20 THE COURT: I guess that’s the -- as I understand

21 it, the allegations over in the Federal Court.

22 MS. PHAM: Yes, that’s my understanding. And it

23 was alleged here as well, but there’s nothing in the record

24 to indicate that at all. So it -- it’s -- there’s nothing

25 in the record to show that.

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1 So -- and Your Honor rightly limited this

2 proceeding to the record, and so what we have is a record

3 that has more than a scintilla of evidence in support of

4 this decision. And ultimately I think that limits Your

5 Honor to finding that the decision of the Commission should

6 be affirmed because it is supported by substantial and

7 material evidence.

8 THE COURT: And you would agree with the

9 petitioner that the pendency of the Federal Court proceeding

10 doesn’t impact this Court in any way in proceeding to

11 address this writ of certiorari appeal?

12 MS. PHAM: No, I don’t believe it has any effect

13 at this point.

14 THE COURT: I guess the best defense is a good

15 offense, right?

16 All right. Anything further, Ms. Pham?

17 MS. PHAM: No, Your Honor. Thank you.

18 THE COURT: Again, I appreciate Metro’s always

19 good argument, excellent briefing of this issue.

20 Mr. Hoffer, go ahead. You got last bite at the

21 apple. I certainly understand where you’re coming from.

22 And the Court is concerned about the Collier Engineering

23 Study.

24 MR. HOFFER: Well, thank you, Your Honor. Well--

25 THE COURT: Commissioned, but not followed.

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1 MR. HOFFER: Yeah, the -- and you know, the issue

2 I had with -- well, there’s several issues I have. But the

3 -- first of all, the idea that the Collier Report and the

4 citizen’s comments is comparing apple -- apples to apples

5 just isn’t the case, and--

6 THE COURT: But you would agree that if it were --

7 I mean, again, you’ve got a heavy hill to climb here just on

8 the burden of review. If indeed there’s enough there from

9 the -- the neighbors to support the Commission’s decision,

10 this Court is going to have its hands tied.

11 But your argument as I understand it is that

12 there’s just nothing there from the citizens -- even though

13 there a lot of them -- and from the councilman to -- to --

14 to contradict what Collier Engineering found.

15 And I assume now you also had your -- your client,

16 Mr. Martin, testified as well at this administrative

17 hearing, so he testified as to his experience as to what was

18 happening over there as well. Correct?

19 MR. HOFFER: Absolutely. Absolutely. And that’s

20 why I made it a point to state earlier the -- you know, the

21 denial. Mr. Martin specifically welcomed the video of his

22 operation that the first hearing was continued to bring

23 forth. It said if -- you know, he said, “If there’s video

24 out there that we’re operating improperly, let’s see it.”

25 And of course the -- the opposed neighbors never

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1 provided that, likely because it never existed. And I think

2 it’s also fair to assume on this record that if there were

3 any videographic or photographic evidence that The Parking

4 Guys were operating improperly that that material would have

5 been before the Commission.

6 THE COURT: Yeah. This Court can’t rely on video

7 that’s not part of the record. I agree with you.

8 MR. HOFFER: Because as we know this -- this

9 operation was under constant surveillance for two months.

10 And there was really nothing in the -- in the photographs

11 that were provided to substant -- substantiate the testimony

12 that was given by the opposing property owners.

13 And I would strongly disagree with the

14 characterization of the testimony by the opposing --

15 opposing property owners that that’s eyewitness testimony.

16 It doesn’t have the character of eyewitness testimony. It

17 has the character of “oh, there’s gridlock on the corner

18 most nights”; it’s a very generalized testimony. It’s not

19 “the valet” -- or “the valet company did this, and as a

20 result there was this health, safety and welfare concern.”

21 And that’s also a -- should be a strong

22 consideration here that it’s not whether there’s some minor

23 impact on traffic. The standard is a “health, safety and

24 welfare” concern. And for the permit to be denied there has

25 to be a health, safety and welfare concern. Not that

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1 there’s a slight increase in traffic, not that there’s the

2 occasional backup, but that there’s something significant

3 about this operation--

4 THE COURT: Yeah.

5 MR. HOFFER: -- that actually threatens the public

6 health, safety and welfare.

7 And when you have the Collier Report that

8 tabulates the amount of valet maneuvers, and when the Court

9 can see there’s you know, an average one every 15 minutes,

10 the idea that a single valet maneuver every 15 minutes is

11 going to cause a health, safety and welfare concern for the

12 residents of the city of Nashville is a pretty big leap.

13 And there’s nothing in the testimony from the

14 concerned residents that allows the Court to make that leap.

15 All of the testimony was of the same character as the

16 pedestrians being hit; the Court is lacking the essential

17 character -- characteristics of eyewitness testimony -- that

18 is: When, where, how, by who? And all of the testimony by

19 the citizens lacked those qualities.

20 That’s why Mr. Knauf, at the end of the first

21 hearing said, “I just don’t have enough evidence to make

22 this decision.” This is the City Traffic Engineer having

23 seen these photos, having seen these same comments, having

24 seen these -- these same allegations.

25 And if the City’s traffic engineer is saying “I

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1 don’t have enough evidence,” a study is commissioned which

2 finds no problem, no evidence of any different character is

3 presented at the second hearing, then the only material

4 evidence by the City’s traffic engineer’s own comments is

5 that there’s no basis for the City Council’s decision.

6 And I would also disagree with the notion that the

7 Commission weigh the Collier Report against the citizen’s

8 comments. That’s simply not what the record reflects. The

9 record reflects that they had said, “Well, this is

10 Councilman O’Connell’s street. He says that he’s convinced

11 that there should be a permit denied, so we’re going to deny

12 it.” There’s no type of articulation on the record of why

13 the City Council -- or excuse me, not the City Council --

14 the Parking Commission--

15 THE COURT: Well, it would be -- well, it would be

16 appropriate for Councilman O’Connell -- and I -- and I knew

17 you said that in your brief -- I mean, there are, one, two

18 three -- six -- looks like six business owners who testified

19 here; they’re his constituents. He’s listening to his

20 constituents out there. And so you know, I think it -- it

21 is appropriate for a councilman who’s representing his

22 constituents to express his or her concerns.

23 Whether that’s enough at the end of the day, I --

24 I -- I know that that’s the question this Court is going to

25 struggle with. But I -- I -- I don’t blame the councilman

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1 here for expressing concern when his constituents are

2 expressing their concerns to him. And indeed, several of

3 them showed up and testified at both commission hearings.

4 I think that’s -- these -- these -- these folks

5 are not paid enough for the jobs they handle, and they hear

6 a lot of complaints. And -- and their job is to express the

7 opinions of their constituents.

8 MR. HOFFER: Your--

9 THE COURT: But having said that, I understand the

10 argument, Mr. Hoffer, expressing concerns is not evidence--

11 MR. HOFFER: Yes, sir.

12 THE COURT: -- not material or substantial

13 evidence.

14 MR. HOFFER: Yeah. And I -- I would offer that --

15 that Councilman O’Connell’s letter doesn’t provide anything

16 additional to the comments by the citizens itself. I -- I

17 could see Councilman O’Connell saying, “This is my street.

18 I have experience with it. It has these specific

19 characteristics that make this inappropriate for a valet

20 operation.” But that wasn’t the tenor of the letter. The

21 tenor was: “My citizens have convinced me. I recommend you

22 deny it.” And that’s what they did. And that’s not proper.

23 THE COURT: I think that’s an appropriate role for

24 a councilman. I mean, he’s -- he -- he -- he -- he’s

25 elected by those folks. And if -- if he feels that strongly

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1 about it, it’s certainly his -- probably his responsibility

2 as an elected official to let his concerns be heard.

3 Whether that’s enough at the end of the day, I

4 agree with you, it’s the question, whether there’s enough in

5 the record to support it. And I’m not sure his -- his

6 statements one way or the other are what the Commission

7 relied on at the end of the day. I understand you all may

8 feel otherwise, but...

9 MR. HOFFER: Okay. The other couple items I’d

10 like to address is first the idea that the valet operation

11 was parking cars inappropriately. For example, there’s --

12 there’s no evidence on the record that The Parking Guys

13 didn’t have permission to park at the Wilder property, or

14 that that permission was later revoked for certain reasons.

15 There’s -- there’s no evidence either way.

16 THE COURT: And certainly no action has been taken

17 against your client’s license, which is what -- what should

18 happen if your client is not complying with its license.

19 MR. HOFFER: And that’s -- that’s exactly it, Your

20 Honor. That’s not a consideration of whether this a health,

21 safety and welfare concern; that’s a matter for enforcement.

22 And the statute itself--

23 THE COURT: Minor regulation of your client.

24 MR. HOFFER: Excuse me, Your Honor?

25 THE COURT: A minor regulation of your client by

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1 the appropriate regulating entity.

2 MR. HOFFER: Yes, Your Honor.

3 THE COURT: Your client is not performing its

4 license in the minor that’s required by Metro Charter or its

5 rules and regulations.

6 MR. HOFFER: Yes, and -- and of course the -- the

7 ordinance itself governing valet permits allows a permit to

8 be revoked for serious health concerns or serious

9 disruptions in traffic. So the extent that the actual

10 operation is somehow done improperly there are avenues for

11 that to be rectified. And that’s why--

12 THE COURT: Yeah, I would -- I would agree with

13 you -- I would be shocked -- I mean, your client doesn’t

14 have any -- there’s nothing in the record to indicate your

15 client has any problem with its license. So the argument

16 that your client would be denied a valet permit and someone

17 else might be granted one, the Court doesn’t have a lot of

18 sympathy with that argument, quite frankly.

19 MR. HOFFER: Yeah. And I -- I would also expect

20 that if Mr. Martin took one step out of line that there

21 would be a line of citizens’ complaints trying to report

22 that to the appropriate officials.

23 And I had one more item. Oh, yeah, and I just

24 wanted to -- I think Your Honor has a -- has a firm grasp on

25 it, but the -- the Collier Report is what it is. And it was

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1 specifically organized between the Commission’s traffic

2 engineer and Collier to identify any concerns if there were

3 any.

4 And to have this notion that the Collier Report

5 period was somehow different than anything else -- or any

6 other period while the valet was operating, there’s just no

7 evidence on the record to suggest that.

8 THE COURT: Well, and if the Commission had had

9 those concerns they could have delayed the hearing and asked

10 the Collier Engineering folks to go out there and conduct a

11 more extensive review.

12 MR. HOFFER: Yep. Your Honor, and--

13 THE COURT: So...

14 MR. HOFFER: -- and we also have is -- it’s the

15 last thing I noted as I specifically pointed out in the

16 reply, one of the photographs from the business opponents

17 was during the weekend of the Collier Report, and it was a

18 specific hour when the Collier Report found that there were

19 no traffic concerns, which tends to show that this vague

20 testimony by the citizens is not of the eyewitness character

21 it’s being offered to, and that it doesn’t actually amount

22 to substantial evidence because it lacks the connection

23 between the operation of the valet and the parking concerns.

24 As we -- as Mr. Martin noted in the record and as

25 the Collier Report noted in the record, and as we see from

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1 the photographs, there’s cabs, there’s val -- or there’s

2 pedicabs, there’s Lyft, there’s Uber, there’s other things

3 going on in the area. And if those things occasionally

4 cause issues, that obviously cannot be a reason to deny the

5 valet permit.

6 And at the same point it’s obvious, because

7 there’s actually photos presented of it, that those are the

8 character of disturbances that the citizens are complaining

9 of to provide a basis for the denial. And that’s just not

10 proper. It -- not - it’s not any type of evidence in

11 support of the Commission’s decision.

12 THE COURT: Thank you, sir.

13 MR. HOFFER: Thank you, Your Honor.

14 THE COURT: Anything further?

15 MS. PHAM: Your Honor, just briefly if I could--

16 THE COURT: Sure, Ms. Pham.

17 MS. PHAM: Thank you. It was stated that there’s

18 not any evidence in the record related to like the Wilder

19 property and the cars being parked there and they’re not

20 being there with permission. That’s actually on Page 77 of

21 the Administrative Record. Mr. Wilder himself sent an email

22 that was reviewed by the Commission, where he stated that

23 the cars were being parked there without his permission.

24 THE COURT: Right.

25 MS. PHAM: And so--

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1 THE COURT: I re -- I recall reading that.

2 MS. PHAM: -- I just wanted to make sure that that

3 was clear.

4 THE COURT: And I think that was mentioned in your

5 brief--

6 MS. PHAM: And he--

7 THE COURT: -- as well.

8 MS. PHAM: -- submit -- and there’s a picture that

9 was -- that goes with that email as well.

10 THE COURT: Okay. Thank you very much.

11 I think where the Court is on this one -- and

12 Ms. Pham knows I don’t do this very often -- but I’m going

13 to -- I’m going to take this one under advisement and think

14 about it for a while.

15 What -- what I would ask the parties to do is on

16 your briefs -- the Court -- and Ms. Pham has probably heard

17 me say this, and maybe Mr. Lynch as well -- the Court tries

18 to use the technology available, and both parties here have

19 done an excellent job of briefing this issue.

20 And -- but the Court would like to make use,

21 particularly on the facts of that. So if I could ask the

22 parties to email -- and Ms. Newton can give you an email

23 address -- Word versions of your briefs to the Court.

24 Not only, Mr. Hoffer, your original brief, but

25 I’ll shoot you a reply as well.

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1 And Ms. Pham, your brief as well.

2 The Court would like to have those so if the Court

3 needs to cut and paste from those excellent facts or some --

4 maybe some of the law that you’ve got in there that the

5 Court doesn’t have to sit down and -- or have Ms. Newton sit

6 down and retype it; we can cut and paste.

7 And here both sides have done an excellent job

8 briefing this, and so it’s a compliment to both of you that

9 the Court would ask for that.

10 What the Court will do is hopefully get out a

11 decision within the next few weeks. Obviously as -- as all

12 parties know this Court is time limited when it has to

13 decide on anything--

14 MR. LYNCH: Unfortunately.

15 THE COURT: -- in front of it, so--

16 MR. LYNCH: Unfortunately.

17 THE COURT: -- you’re going to -- you’re going to

18 get a decision by no later than August 31, but the Court

19 hopes to have this one done in the next couple of -- of

20 three weeks.

21 MR. LYNCH: Can you not do that? I mean, could

22 you be 15 days--

23 THE COURT: You can. You can.

24 MR. LYNCH: -- into September something, or--

25 THE COURT: But the problem, Mr. Lynch, is I’ve

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1 got, under statute, I think I -- there’s 30 days after

2 August 31 to clean up.

3 MR. LYNCH: Okay.

4 THE COURT: The problem with that, Mr. Lynch, is

5 they don’t pay me to clean up.

6 MR. LYNCH: Well, yeah, right, yeah. All right.

7 I -- I’m sorry.

8 THE COURT: I guess arguably--

9 MR. LYNCH: I shouldn’t have said any--

10 THE COURT: -- they’re paying me--

11 MR. LYNCH: I just--

12 THE COURT: -- with the salary they paid me in the

13 past.

14 MR. LYNCH: Right.

15 THE COURT: But -- but I want to -- I want to

16 operate on a clean slate--

17 MR. LYNCH: Right.

18 THE COURT: -- when I go out into private

19 practice. And -- and I want Ms. Martin -- Chancellor Martin

20 to operate with a clean slate and have everything. So I do

21 promise you that this decision will be out by no later than

22 August 31, and hopefully well before then.

23 We are reserving time in July in August to -- to

24 get everything out. And we’re actually fairly caught up.

25 Bu this one -- this one is an interesting case, and the

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1 Court wants to take a little bit of time to think about it.

2 So with that, any further questions from counsel?

3 Now, Ms. Pham, I do wish your able assistant here

4 the best in his law school ventures--

5 MR. ROSARIO: Thank you.

6 THE COURT: -- going forward.

7 And Mr. Hoffer, I hope to see you again in this

8 neck of the woods and safe travels back.

9 MR. HOFFER: Likewise. Thank you, Your Honor.

10 THE COURT: Thank you, too.

11 With that, Court is adjourned. Thank you again

12 for your excellent argument and briefing today.

13 MS. PHAM: Thank you, Your Honor.

14 (End of recording.)

15 * * * * * * 16

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1 STATE OF TENNESSEE ) ) 2 COUNTY OF DAVIDSON ) 3 I, Laurie McClain, Transcriber, 4 DO HEREBY CERTIFY that the foregoing proceedings 5 were transcribed by me from a digital file, and the 6 foregoing proceedings constitute a true and correct 7 transcript of said recording, to the best of my ability. 8 I FURTHER CERTIFY I am not a relative or employee 9 or attorney or counsel of any of the parties hereto, nor a 10 relative or employee of such attorney or counsel, nor do I 11 have any interest in the outcome or events of this action. 12

13 Date 07/10/2018 ______14 Laurie McClain Transcriber 15

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Case 3:18-cv-00511 Document 18-4 Filed 07/13/18 Page 46 of 56 PageID #: 368 Index

analyzed, 18 apparently, 6 A appeal, 3, 32 Appeals, 11 appeared, 7 ability, 46 appears, 5, 7 Absolutely, 6, 33 apples, 33 access, 23 applied, 26 accidents, 22 appreciate, 3, 32 accounts, 21 arbitrarily, 27 acted, 27 arbitrary, 31 action, 26, 38, 46 Are, 25-26 activity, 6, 18 are, 3, 11, 18-19, 21-24, 26, 36-39, 41, 44 actually, 22, 24-25, 29-30, 35, 40-41, 44 arguably, 44 additional, 25, 37 arguing, 3 addressed, 23, 28 arising, 8 adjacent, 7-8 articulation, 36 adjourned, 45 asked, 24, 40 Administrative, 41 asking, 24, 28 administrative, 7, 11, 23, 27, 33 assistant, 45 admitted, 19 associated, 7-8 advisement, 42 Associates, 2 affirmed, 32 assuming, 24-25 Ah, 16 assumption, 8, 10 ahead, 4, 13, 16-17, 32 attaches, 11 allegations, 4, 26, 31, 35 Attorney, 2 alleged, 31 attorney, 46 allowed, 15 attorneys, 24 allows, 35, 39 August, 5, 43-44 alma, 15 authorize, 12 Am, 13, 21 Avenue, 2, 4-5, 8-9 am, 7, 46 avenues, 39 an, 3, 11, 17, 19-20, 27-28, 31, 35, 37-38, 41-44

i Case 3:18-cv-00511 Document 18-4 Filed 07/13/18 Page 47 of 56 PageID #: 369 Index

average, 10, 35 caused, 21-22 causing, 8, 23 cautioned, 11 cert, 27 Certainly, 14, 16 certainly, 6, 14, 16, 32, 38 B CERTIFY, 46 certiorari, 3, 10-12, 32 CHANCELLOR, 1 backing, 8 Chancellor, 44 backup, 22, 35 CHANCERY, 1-46 basically, 13, 23 changed, 25 beating, 28 characteristics, 35, 37 becomes, 23 characterization, 34 been, 4, 6, 8, 13, 22, 26, 31, 34, 38 characterize, 7-8, 11, 19, 21 beginning, 16 characterizes, 21 behalf, 10, 12 Charter, 39 being, 6, 8, 10, 18, 23, 26, 35, 40-41 checked, 29 believed, 29 cherry, 11 below, 8, 11-12 Chip, 5, 10 better, 15 cite, 18 bite, 14, 32 citizen, 12, 33, 36 blame, 36 citizens, 33, 35, 37, 39-41 blocking, 23, 26 CLERK, 3-4 BOB, 2 clients, 12 Boulevard, 2 climb, 33 bound, 25 closely, 31 brethren, 14 Collier, 5-6, 9-10, 18, 23, 28, 30, 32-33, 35-36, 39-40 briefing, 4, 14, 17, 32, 42-43, 45 com, 1, 24 briefly, 41 comes, 20, 23-24 briefs, 42 coming, 20, 32 broke, 17 comments, 5, 33, 35-37 brought, 31 COMMISSION, 1 Bu, 44 Commission, 3-5, 8-10, 12-13, 18-21, 23-25, 27-29, burden, 33 31-34, 36, 38, 40-41 businesses, 4, 6, 8-9 commission, 19, 28, 37 Commissioned, 32 commissioned, 5, 36 Commissioner, 5 commissioners, 19 comparing, 33 C complaining, 41 complaints, 12, 18, 20, 37, 39 completely, 26 cabs, 41 compliant, 23 came, 20, 28 compliment, 43 camera, 18 complying, 38 cannot, 41 concerned, 19, 24, 32, 35 Capital, 2 concerns, 5, 7-8, 10, 22-23, 36-40 cars, 8-9, 18, 23, 26, 38, 41 conduct, 40 CATHERINE, 2

ii Case 3:18-cv-00511 Document 18-4 Filed 07/13/18 Page 48 of 56 PageID #: 370 Index

connected, 7, 10 despite, 5 connecting, 7 detailed, 4, 19 connection, 23, 40 determine, 11-12 Connell, 30-31, 36-37 determined, 21, 27 Conner, 30 detrimental, 22 consideration, 34, 38 Diane, 10 considered, 11, 24 Did, 16 constant, 34 did, 6, 8, 14, 17-20, 26, 28-31, 34, 37 constituents, 36-37 different, 10, 20, 25, 36, 40 constitute, 46 digital, 1, 46 consultant, 6 directing, 11 continued, 31, 33 direction, 10, 20 contradict, 33 disagree, 8, 34, 36 contradictory, 20 disconcerting, 20 convinced, 36-37 discounting, 7 correctness, 11-12 discretion, 28 Councilman, 5, 30, 36-37 disregard, 19-20 councilman, 7, 33, 36-37 disruptions, 39 councilperson, 20 disturbances, 41 counsel, 45-46 Does, 6, 13 Courthouse, 2 does, 4, 9, 12-14, 17, 26, 30 courtroom, 12 doing, 30 courts, 11 done, 6, 14, 17-18, 23-24, 31, 39, 42-43 CRAIG, 13 downstairs, 16 Craig, 12 drawn, 9

D E

DAVIDSON, 1, 46 earlier, 33 days, 10, 18, 21, 43-44 echoing, 20 de, 10-11, 24 Education, 11 dealt, 21 elected, 37-38 decides, 19 elevated, 22 defense, 32 email, 41-42 defer, 3, 11 emails, 6 deference, 11 emphasis, 28 defers, 27 employee, 46 definitely, 31 enforcement, 38 Deja, 23 Engineer, 10, 35 delay, 24 engineer, 5-6, 35-36, 40 delayed, 18, 40 Engineering, 18, 28, 30, 32-33, 40 delays, 19 engineering, 24 denial, 33, 41 enjoying, 15 denied, 4, 21, 24, 34, 36, 39 enters, 12 deny, 3-4, 9, 36-37, 41 entire, 6, 10, 12, 30 designated, 23 entitled, 11

iii Case 3:18-cv-00511 Document 18-4 Filed 07/13/18 Page 49 of 56 PageID #: 371 Index

entity, 12, 39 especially, 12 ESQ, 2 G essential, 35 Essentially, 21 essentially, 18-20, 23, 27, 30-31 gathered, 5 established, 14 generalized, 7, 34 evaluate, 12 gets, 15 events, 46 giving, 21 exactly, 30, 38 glad, 4, 16 examine, 5-6 gmail, 1 excellent, 4, 17, 32, 42-43, 45 going, 6, 16, 18-19, 29, 33, 35-36, 41-43, 45 existed, 29, 34 got, 19, 32-33, 43-44 exists, 9, 11 governing, 39 expert, 19-20, 24-25, 28 GOVERNMENT, 1 expertise, 3, 27 governmental, 12 expressed, 7 granted, 10, 39 expressing, 37 granting, 18, 20 extensive, 21, 24, 40 grasp, 39 extent, 13, 18, 30-31, 39 gridlock, 34 eyewitness, 21, 28, 31, 34-35, 40 GUYS, 1 Guys, 2-46

F H facto, 24 facts, 11, 14, 42-43 had, 6-8, 16, 20, 22, 25, 28-30, 33, 36, 39-40 fairly, 44 handle, 37 Federal, 13-14, 31-32 hands, 33 feels, 37 happened, 18, 21-22 filed, 7 happening, 7, 33 files, 1 having, 5, 35, 37 finding, 11, 32 heard, 4-5, 25, 38, 42 finds, 36 hearings, 7, 16, 37 finished, 15 HEREBY, 46 firm, 28, 39 hereto, 46 firsthand, 21 Heyne, 11 folks, 6, 8, 37, 40 hidden, 6 followed, 32 hill, 33 foregoing, 46 hire, 19 Forest, 16 hired, 6 forth, 10, 33 HOFFER, 2-14, 32-35, 37-41, 45 found, 5, 33, 40 Hoffer, 3-4, 7, 10, 12, 14, 32, 37, 42, 45 frankly, 39 Honor, 3-4, 7-10, 12-16, 22, 27-28, 30, 32, 38-41, 45 friends, 14 HONORABLE, 1 hopefully, 43-44 hopes, 43

iv Case 3:18-cv-00511 Document 18-4 Filed 07/13/18 Page 50 of 56 PageID #: 372 Index

hoping, 16 hours, 16-17 huh, 20, 25 J

jobs, 37 JR, 2 JUDICIAL, 1 judicial, 11 I July, 4, 30, 44 Jun, 30 ignore, 19 June, 1, 30 ignored, 23 justifiable, 9 ignoring, 19 II, 1 impact, 8-9, 13, 32, 34 improper, 31 improperly, 33-34, 39 inappropriate, 26, 31, 37 K inappropriately, 38 INC, 1 included, 29 Knauf, 5, 10, 31, 35 independent, 28 knew, 6, 22, 36 indicate, 10, 31, 39 knows, 42 indicated, 8, 21, 23, 29 indication, 27 influence, 31 influenced, 13 info, 29 information, 5, 19 L initial, 8 intentionally, 28 lacked, 35 interesting, 16, 44 lacking, 35 interns, 15 lacks, 40 intrinsic, 12 Lansing, 2 intrinsically, 9 later, 14, 38, 43-44 introduced, 8, 29 Laurie, 1-46 involving, 13 lauriemcclainmusic, 1 Is, 8, 10, 21, 27-28 leap, 35 is, 3-24, 26-28, 30-40, 42-45 learned, 3 issues, 5, 7-8, 18, 20-21, 23, 33, 41 legally, 30 items, 38 letters, 29 license, 26, 38-39 licensed, 26 Likewise, 45 limitations, 19, 21 limited, 5, 18-19, 24, 28, 32, 43 limits, 32 listening, 36 ll, 14, 16

v Case 3:18-cv-00511 Document 18-4 Filed 07/13/18 Page 51 of 56 PageID #: 373 Index

location, 22, 25 looked, 19 looking, 6-7, 10, 15, 18, 24, 27-28 N looks, 3, 36 lost, 17 lots, 8, 23, 26 NASHVILLE, 1 lower, 11 Nashville, 1-2, 11, 35 Lyft, 41 nd, 30 LYNCH, 2-3, 12-13, 16-17, 43-44 necessarily, 11, 20, 26 Lynch, 3, 13-14, 42-44 neck, 45 needs, 43 negatively, 9 neighbor, 22 neighboring, 23 neighbors, 18-21, 23, 26, 28-29, 33 Newton, 42-43 M niece, 16 nights, 34 made, 11, 33 Nor, 17 making, 12-13, 18-19, 24 nor, 9, 46 maneuver, 10, 35 noted, 40 maneuvers, 24, 35 noticeable, 6 Marshall, 10 notion, 9, 36, 40 MARTIN, 13 novo, 10-11 Martin, 4, 9, 12, 33, 39-40, 44 numerous, 29 mater, 15 material, 8-9, 12, 27, 32, 34, 36-37 MATTHEW, 2 Mayor, 17 McClain, 1-46 meant, 6 O meetings, 29 mentioned, 30, 42 met, 18 objection, 14 Metro, 3, 5-7, 9-10, 14, 16-17, 26, 32, 39 observations, 7-8, 21 METROPOLITAN, 1 observed, 6, 8, 21 Metropolitan, 2, 11 obtained, 28 Michigan, 2 Obviously, 6, 43 Minor, 38 obviously, 4, 24, 29, 41 minor, 34, 38-39 occasional, 35 minutes, 10, 35 occasionally, 41 misunderstanding, 29 offense, 32 Mitchell, 5 offered, 7, 40 months, 6, 20-21, 34 Officer, 10 motioned, 5 official, 38 motive, 31 officials, 39 MR, 3-17, 32-35, 37-41, 43-45 Oh, 15-16, 39 Mr, 3-4, 7, 9-10, 12-14, 31-33, 35, 37, 39-45 oh, 34 MS, 3, 14-32, 41-42, 45 operated, 26 Ms, 14, 16-17, 23, 32, 41-45 operating, 18, 26, 30-31, 33-34, 40 multiple, 31 operational, 5, 18

vi Case 3:18-cv-00511 Document 18-4 Filed 07/13/18 Page 52 of 56 PageID #: 374 Index

operations, 9, 21 PHAM, 2-3, 14-32, 41-42, 45 operator, 27 Pham, 14, 16-17, 23, 32, 41-43, 45 opinions, 17, 37 phonetic, 15 opponents, 40 photographic, 34 opposed, 4, 8, 11, 33 photographs, 5, 29, 34, 40-41 opposing, 34 photos, 7, 23, 35, 41 opposition, 21 pictures, 19 ordered, 19, 21, 24 plaintiff, 24 orders, 23 pleasant, 16 ordinance, 9, 39 PO, 2 organized, 3, 40 pointed, 20, 22, 30, 40 originally, 4 potential, 21 outcome, 46 presented, 11-12, 31, 36, 41 outweighed, 28 presuming, 11 owners, 5, 7-8, 29, 31, 34, 36 presumption, 11 probably, 25, 38, 42 problematic, 9 problems, 8, 18, 21, 23 proceeding, 11, 13-14, 32 proceedings, 1, 46 P proceeds, 13 professional, 6 promise, 44 paid, 37, 44 prospect, 16 par, 10 provided, 9, 34 parked, 18, 41 putting, 9 PARKING, 1 Parking, 2-46 parking, 7-10, 23, 26-27, 38, 40 particularly, 14, 42 parties, 20, 42-43, 46 patrons, 23 patterns, 25 Q paying, 44 pedestrian, 22 questions, 4, 45 pedestrians, 9, 22, 35 quote, 19 pedicabs, 41 quoting, 11 pendency, 32 pending, 13 performing, 39 periods, 9 permission, 38, 41 permit, 3-5, 7, 9-10, 18-21, 24-25, 30, 34, 36, 39, 41 R permits, 30-31, 39 personal, 8, 17 personally, 8 ran, 30 persons, 9 rd, 30 perspective, 22, 28 re, 3-4, 7, 11-12, 15-16, 24, 26-28, 30, 32-33, 36, petition, 3 41-44 Petitioner, 1 reach, 20 petitioner, 3, 8, 24, 28, 32 reapply, 24-25

vii Case 3:18-cv-00511 Document 18-4 Filed 07/13/18 Page 53 of 56 PageID #: 375 Index

reasonable, 21 reasons, 38 recall, 42 S received, 10, 20 recognized, 8 reconcile, 24 safety, 20, 22, 34-35, 38 recording, 6, 45-46 said, 5, 16, 23, 29-30, 33, 35-37, 44, 46 rectified, 39 salary, 44 referenced, 6 saying, 18, 20, 35, 37 reflect, 6 says, 10-11, 13, 36 reflected, 12 scenario, 25 reflects, 6, 36 Schipani, 6 regarding, 26 scintilla, 27, 31-32 regardless, 22 seeing, 10 regulating, 39 Seemed, 21 regulation, 38 seems, 5, 8, 10, 18-19 regulations, 39 seen, 35 related, 18, 22, 41 selected, 28 relative, 46 sent, 7, 41 relevant, 22, 30 September, 43 relied, 38 seriously, 28 rely, 31, 34 sets, 20 remained, 25 Shafer, 2 repeatedly, 11 sheer, 18 reply, 10, 40, 42 shocked, 39 representatives, 7 showed, 6, 18, 37 representing, 36 shows, 22, 28, 30 required, 39 sic, 30 reserving, 44 sides, 43 residents, 35 significant, 35 Respondent, 1 simply, 9-10, 19, 36 response, 25 sits, 24 responsibility, 38 sitting, 15 results, 19 slate, 44 retype, 43 smarter, 3 review, 10-12, 19, 27-28, 33, 40 somehow, 8, 31, 39-40 reviewed, 5, 29, 41 somewhat, 3, 20 reviewing, 7, 10, 12 sorts, 20 reviews, 30 sounded, 29 revoked, 38-39 specifically, 6, 23-24, 33, 40 Richard, 15 specificity, 12 rightly, 32 stated, 22, 41 Roman, 9 statements, 20, 22-23, 38 ROSARIO, 15-16, 45 statute, 38, 44 Rosario, 15 statutory, 11 rules, 39 streets, 23, 26 ruling, 13 strongly, 34, 37 struggle, 36 struggled, 7 submit, 42 submitted, 4-5

viii Case 3:18-cv-00511 Document 18-4 Filed 07/13/18 Page 54 of 56 PageID #: 376 Index

substant, 34 trial, 11 substantial, 8, 11-12, 27, 32, 37, 40 tribunal, 11 substantiate, 34 tried, 4 sufficient, 6, 12 tries, 42 Suite, 2 trying, 11, 39 supported, 12, 32 TWENTIETH, 1 supposed, 5, 8, 23 typical, 18 supposedly, 7 surreptitious, 6 surreptitiously, 6 surveillance, 6, 34 surveilled, 6 swayed, 5 U sympathy, 39

Uber, 41 Uh, 20, 25 ultimate, 8 ultimately, 20-21, 31-32 unclear, 27 T understanding, 11, 29, 31 undisputably, 5 tabled, 5 unduly, 13 tabulates, 35 unequivocally, 5 tabulation, 5, 9 Unfortunately, 13, 43 taken, 5, 10, 26, 38 Unintelligible, 13 talking, 30 upset, 14 taxes, 17 technology, 42 temporary, 30-31 tends, 40 TENNESSEE, 1, 46 Tennessee, 1-2, 4, 11 V tenor, 37 testified, 9, 33, 36-37 testify, 8 vague, 21-22, 40 testimony, 7-8, 19-23, 25, 28, 31, 34-35, 40 val, 41 th, 4-5, 8-9, 30 valet, 3-10, 18-23, 25-27, 30, 34-35, 37-41 things, 18, 22-23, 25, 29, 41 validate, 9 third, 15 Vandy, 15 threatens, 35 ve, 33, 43 tied, 33 ventures, 45 took, 19, 30, 39 verifying, 10 towards, 5, 20 versions, 42 Transcribed, 1-46 versus, 3 transcribed, 46 Vice, 17 Transcriber, 46 videographic, 34 TRANSCRIPT, 1 videos, 29 Transcript, 1 visibility, 23 transcript, 46 volume, 9, 22 travels, 45 vs, 1

ix Case 3:18-cv-00511 Document 18-4 Filed 07/13/18 Page 55 of 56 PageID #: 377 Index

Vu, 23

W

Wake, 16 wanted, 14-15, 39, 42 wants, 45 warned, 16 Was, 12 was, 4-8, 10, 12-13, 16-19, 22-24, 26, 28-31, 33-35, 37-42 Washington, 2 watching, 29 weekend, 6, 9, 18, 40 weeks, 43 weighed, 21, 27, 31 welcomed, 33 welfare, 34-35, 38 were, 4-8, 17-23, 26, 28-30, 33-34, 40-41, 46 Wilder, 38, 41 willing, 13 wins, 27 witnesses, 20 woods, 45 workers, 8 working, 7-8 Works, 29 works, 13 writ, 3, 10-12, 27, 32

Y

Yeah, 14-17, 22-23, 33-35, 37, 39 yeah, 4, 15-16, 39, 44 Yep, 40

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