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McLean v. City of Alexandria

United States District Court, E.D. Virginia, Alexandria Division

February 2, 2015

SCOTT MCLEAN, Plaintiff,
v.
CITY OF ALEXANDRIA, Defendant

For Scott McLean, Plaintiff: Jason Brett Torchinsky, Shawn Toomey Sheehy, LEAD ATTORNEYS. Holtzman Vogel Josefiak PLLC, Warrenton, VA.

For City Of Alexandria, Defendant: Christopher P. Spera, LEAD ATTORNEY, Office of the City Attorney, Alexandria, VA; Travis Sands MacRae, City Attorney's Office - City of Alexandria, Alexandria, VA.

Page 476

MEMORANDUM OPINION

James C. Cacheris, UNITED STATES DISTRICT COURT JUDGE.

The City of Alexandria prohibits parking a vehicle upon any street for the purpose of displaying the vehicle for sale. City resident Scott McLean claims this prohibition violates the First Amendment to the Constitution. Recently, the City of Alexandria temporarily suspended enforcement of this prohibition, pending review by the City Council. The issue now before the Court is whether the City's temporary suspension moots Mr. McLean's claims. For the reasons discussed in detail below, the Court finds the temporary suspension does not moot Mr. McLean's claims, and therefore, the Court will deny the City of Alexandria's Motion to Dismiss [Dkt. 21].

I. Background

Plaintiff Scott McLean (" McLean" ), a resident of Defendant City of Alexandria (the " City" ), wants to sell his 2007 Dodge Ram 1500 pick-up truck by parking it on a City street near his home with a for-sale sign in the window. (Compl. [Dkt. 1] ¶ 13.) However, section 10-4-13(a) of the City's Code of Ordinances (" the Ordinance" ) prohibits

Page 477

" park[ing] a vehicle upon any street for the purpose of displaying the vehicle for sale." Any person who violates the Ordinance is guilty of a traffic infraction and may be fined not more than $100. Alexandria Code of Ordinances § 10-4-13(c). In fact, when McLean previously attempted to sell a different vehicle in October of 2012 by parking it on a City street near his home, he received a citation that carried a fine, which he paid. (Compl. ¶ ¶ 10-11.) To avoid further citations, McLean moved the vehicle less than a mile away to the neighboring jurisdiction of Arlington County, Virginia, where he parked the vehicle on a public street with a for-sale sign displayed until the vehicle eventually sold in February of 2013. (Id. at ¶ 12.)

McLean filed this action against the City and claims that the Ordinance is an overly-broad, content-based speech restriction that violates his First Amendment right to communicate a truthful message to the public about a lawful item for sale. (Compl. ¶ 29.) McLean initially sought a preliminary injunction enjoining the City from enforcing the Ordinance. [Dkt. 4.] The preliminary injunction was resolved on October 28, 2014, when the City announced it was suspending enforcement of the Ordinance pending a review process that included public comment,[1] which could take months to complete.[2] (Def.'s Mem. [Dkt. 22] at 2; Order [Dkt. 15].)

The City now moves to dismiss the Complaint for lack of jurisdiction, arguing McLean's claims have been rendered moot by the City's voluntary suspension of enforcing the Ordinance. [Dkt. 21.] McLean opposes the Motion to Dismiss and argues that because the City's suspension is merely temporary, there is nothing to prevent the City from enforcing the Ordinance in the future. (Pl.'s Mem. in Opp'n [Dkt. 29].) With briefing and argument now complete, the Motion to Dismiss is ripe for disposition.

II. Legal Standard

" [I]n passing on a motion to dismiss, whether on the ground of lack of jurisdiction over the subject matter or for failure to state a cause of action, the allegations of the complaint should be construed favorably to the pleader." Scheuer v. Rhodes,416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), abrogated on other grounds by Harlow v. Fitzgerald,457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). A motion pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure challenges the Court's subject matter jurisdiction over the pending action. Fed.R.Civ.P. 12(b)(1). " Federal courts are courts of limited jurisdiction, and we presume that a cause lies outside this limited jurisdiction. The burden of establishing the contrary rests upon the party asserting jurisdiction." Wheeling Hosp., Inc. v. Health Plan of the Upper Ohio Valley, Inc.,683 F.3d 577, 583-84 (4th Cir. 2012) (citation omitted). Relevant here, " [a] Court is deprived of jurisdiction over a ...


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