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Frudden v. Pilling

United States District Court, D. Nevada

February 10, 2015

JON E. FRUDDEN, Plaintiff,
KAYANN PILLING, et al., Defendants.


ROBERT C. JONES, District Judge.

This case arises out of the adoption of a school uniform at a public elementary school. Pending before the Court are Defendants' Motion for Summary Judgment (ECF No. 75), Plaintiff's Motion for Clarification (ECF No. 77), and Plaintiff's Motions to Strike (ECF Nos. 85, 89). For the reasons given herein, the Court grants the motion for summary judgment, addresses the motion for clarification, denies the first motion to strike, and grants the second motion to strike.


Mary and John E. Frudden are the parents of two minor children ("John Doe" and "Jane Doe, " collectively, the "Children") who attended Roy Gomm Elementary School ("RGES") in Reno, Nevada at relevant times, although John Doe has attended Swope Middle School ("SMS") since 2013. The RGES Parent Faculty Association, Inc. ("PFA") is a non-profit fundraising organization that adopted a school uniform policy (the "Policy") for RGES in conjunction with RGES in 2011. The Court will not repeat the details of the uniform adoption process as recounted in previous orders, because those details are not relevant to the remaining claims in the case.

Plaintiffs sued Defendants in this Court on eighteen causes of action. The First Amended Complaint ("FAC") omitted one Defendant and listed sixteen causes of action: (1) declaratory judgment that the PFA and RGES had no power to enact the Policy under Nevada Revised Statutes ("NRS") section 392.458; (2) violation of the Children's First Amendment rights under 42 U.S.C. § 1983 due to the requirement to wear particular clothing; (3) violation of the Children's and Parents' associational rights under § 1983; (4) procedural and substantive due process violations under § 1983; (5) violation of substantive due process under § 1983; (6) failure to train and supervise under § 1983; (7) violation of the Equal Protection Clause under § 1983; (8) violation of Plaintiffs' First Amendment rights under § 1983 due to RGES's viewpoint discrimination in the unequal use of facilities as between supporters and opponents of the Policy; (9) violation of NRS section 392.4644; (10) declaratory judgment as to a violation of open meetings laws under NRS chapter 241; (11) "Breach of Special Relationship"; (12) intentional and negligent misrepresentation; (15) declaratory judgment as to a violation of public records laws under NRS chapter 239; (14) attorney's fees and costs under § 1988; (15) injunctive relief; and (16) declaratory relief.

Defendants moved to dismiss for failure to state a claim. The Court dismissed the federal claims and some of the state law claims but declined to exercise jurisdiction over other state law claims. Plaintiffs appealed. The Court of Appeals ruled that the mandatory display of the school motto (though not the bare fact of the uniforms themselves) and the content-based exception to the Policy permitting the wear of uniforms of nationally recognized youth organizations should be reviewed on remand under strict scrutiny. See Frudden v. Pilling, 742 F.3d 1199, 1207 (9th Cir. 2014).

After the mandate issued, the Court ordered Plaintiffs to file a second amended complaint, because the FAC was unclear as to the objected-to speech on the uniforms. Plaintiffs filed the Second Amended Complaint ("SAC"), and the Court denied a motion to strike it. Via the SAC, Mary Frudden withdrew as a plaintiff and appeared as her husband Jon Frudden's attorney. In response to Plaintiff's motion for clarification, the Court ruled that the only claim remaining for further proceedings was the First Amendment claim against the compelled wearing of the school motto on the uniforms and against the content-based exception for nationally recognized youth organizations. Any claims against the uniforms per se had been abandoned by failing to raise them in the opening brief on appeal, and in any case the issue had been conceded at oral argument on appeal. Plaintiff requested leave to amend the SAC. The Court denied the motion because the new claims Plaintiff proposed to add were variously res judicata, unripe, or futile.[1]

Defendants have moved for summary judgment. Plaintiff has opposed the motion and asked the Court to clarify the status of his claims relating to the uniform policy at SMS. Plaintiff has also asked the Court to strike five of Defendants' exhibits, three of which are attached to the motion for summary judgment and two of which are attached to the reply.


A court must grant summary judgment when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). Material facts are those which may affect the outcome of the case. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. See id. A principal purpose of summary judgment is "to isolate and dispose of factually unsupported claims." Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). In determining summary judgment, a court uses a burden-shifting scheme:

When the party moving for summary judgment would bear the burden of proof at trial, it must come forward with evidence which would entitle it to a directed verdict if the evidence went uncontroverted at trial. In such a case, the moving party has the initial burden of establishing the absence of a genuine issue of fact on each issue material to its case.

C.A.R. Transp. Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474, 480 (9th Cir. 2000) (citations and internal quotation marks omitted). In contrast, when the nonmoving party bears the burden of proving the claim or defense, the moving party can meet its burden in two ways: (1) by presenting evidence to negate an essential element of the nonmoving party's case; or (2) by demonstrating that the nonmoving party failed to make a showing sufficient to establish an element essential to that party's case on which that party will bear the burden of proof at trial. See Celotex Corp., 477 U.S. at 323-24. If the moving party fails to meet its initial burden, summary judgment must be denied and the court need not consider the nonmoving party's evidence. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 159-60 (1970).

If the moving party meets its initial burden, the burden then shifts to the opposing party to establish a genuine issue of material fact. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). To establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that "the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial." T.W. Elec. Serv., Inc. v. P. Elec. Contractors Ass'n, 809 F.2d 626, 631 (9th Cir. 1987). In other words, the nonmoving party cannot avoid summary judgment by relying solely on conclusory allegations unsupported by facts. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Instead, the opposition must go beyond the assertions and allegations of the pleadings and set forth specific facts by producing competent evidence that shows a genuine issue for trial. See Fed.R.Civ.P. 56(e); Celotex Corp., 477 U.S. at 324.

At the summary judgment stage, a court's function is not to weigh the evidence and determine the truth, but to determine whether there is a genuine issue for trial. See Anderson, 477 U.S. at 249. The evidence of the nonmovant is "to be believed, and all justifiable inferences are to be drawn in his favor." Id. at 255. But if the evidence of the nonmoving party is merely colorable or is not significantly probative, summary judgment may be granted. See id. at 249-50.


A. Motion for Summary ...

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