Chike Uzuegbunam v. Stanley C. Preczewski ( 2019 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 18-12676
________________________
D.C. Docket No. 1:16-cv-04658-ELR
CHIKE UZUEGBUNAM,
JOSEPH BRADFORD,
Plaintiffs-Appellants,
versus
STANLEY C. PRECZEWSKI,
President of Georgia Gwinnett College,
in his official and individual capacities,
LOIS C. RICHARDSON,
Acting Senior Vice President of Academic and Student Affairs
and Provost at Georgia Gwinnett College,
in her official and individual capacities,
JIM B. FATZINGER,
Senior Associate Provost for Student Affairs for Georgia Gwinnett College,
in his official and individual capacities,
TOMAS JIMINEZ,
Dean of Students at Georgia Gwinnett College,
in his official and individual capacities,
AILEEN C. DOWELL,
Director of the Office of Student Integrity at Georgia Gwinnett College,
in her official and individual capacities,
GENE RUFFIN,
Dean of Library Services at Georgia Gwinnett College,
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in his official and individual capacities,
CATHERINE JANNICK DOWNEY,
Head of Access Services and Information Commons,
in her official and individual capacities,
TERRANCE SCHNEIDER,
Associate Vice President of Public Safety and Emergency Preparedness/Chief of
Police at Georgia Gwinnett College,
in his official and individual capacities,
COREY HUGHES,
Campus Police Lieutenant at Georgia Gwinnett College,
in his official and individual capacities,
REBECCA A. LAWLER,
Community Outreach and Crime Prevention Sergeant at Georgia Gwinnett
College,
in her official and individual capacities,
SHENNA PERRY,
Campus Safety/Security Officer at Georgia Gwinnett College,
in her official and individual capacities,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(July 1, 2019)
Before MARCUS and BLACK, Circuit Judges, and RESTANI, * Judge.
PER CURIAM:
Appellants Chike Uzuegbunam and Joseph Bradford, both students at
Georgia Gwinnett College (GGC) at the time they filed this lawsuit, sued multiple
*
Honorable Jane A. Restani, Judge for the United States Court of International Trade,
sitting by designation.
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GGC officials, pursuant to 42 U.S.C. § 1983, asserting facial and as-applied
challenges to the constitutionality of two policies included in GGC’s Student
Handbook: the “Freedom of Expression Policy” and the “Student Code of
Conduct” (the Prior Policies). While the case was pending before the district
court, GGC revised both policies and Uzuegbunam graduated, rendering the claims
for declaratory and injunctive relief moot. The district court dismissed the case as
moot, concluding Appellants’ claims for nominal damages could not save their
otherwise moot constitutional challenges to the Prior Policies. After review, and
with the benefit of oral argument, we affirm.
I. BACKGROUND
A. Factual Allegations in the First Amended Complaint
In July 2016, Uzuegbunam began distributing religious literature in an open,
outdoor plaza on GGC’s campus. Shortly after he began these activities, he was
stopped by a member of Campus Police who explained Uzuegbunam was not
allowed to distribute religious literature (or any literature) at that location, in
accordance with GGC’s “Freedom of Expression Policy.” Specifically, the policy
stated students were generally permitted to engage in expressive activities only in
two designated speech zones and often only after reserving them.
Some time later, Uzuegbunam reserved one of the designated speech zones
in order to distribute religious literature and speak to students about his religious
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beliefs. However, soon after Uzuegbunam began speaking, a member of Campus
Police approached him and asked him to stop, explaining they had received “some
calls” complaining about his speech. The officer informed Uzuegbunam he had
only reserved the speech zone for certain specific purposes, not including “open-air
speaking,” and that he was in violation of GGC’s “Student Code of Conduct”
because his speech constituted “disorderly conduct.”
Given the warnings from GGC Campus Police and the threat of disciplinary
action, Uzuegbunam elected to stop speaking entirely and leave the designated
speech zone. After this incident, neither Uzuegbunam nor Bradford—another
GGC student who shares Uzuegbunam’s religious beliefs and desire to speak
publicly concerning those beliefs—have attempted to speak publicly or distribute
literature in any open, outdoor, generally accessible areas of the GGC campus
outside the two speech zones, nor have they engaged in any “open-air speaking” or
other expressive activities in the speech zones.
B. Requests for Relief in the First Amended Complaint
In the section of the complaint entitled “Prayer for Relief,” Appellants
requested: (1) a declaratory judgment that the Speech Zone and Speech Code
Policies, facially and as-applied, violated their First and Fourteenth Amendment
rights; (2) a declaratory judgment that Appellees’ restriction of their literature
distribution violated their First and Fourteenth Amendment rights; (3) a declaratory
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judgment that Appellees’ restriction of their open-air speaking violated their First
and Fourteenth Amendment rights; (4) a preliminary and permanent injunction
prohibiting Appellees from enforcing the challenged policies; (5) nominal
damages; (6) reasonable costs and attorneys’ fees; and (7) “[a]ll other further relief
to which [they] may be entitled.”
Additionally, at the end of each of the four sections describing the individual
causes of action, Appellants asserted “they [were] entitled to an award of monetary
damages and equitable relief.” They also stated they were “entitled to damages in
an amount to be determined by the evidence and this Court.”
C. The Motions to Dismiss
Appellees filed a motion, pursuant to Fed. R. Civ. P. 12(b)(6), to dismiss the
First Amended Complaint for failure to state a claim. While that motion was
pending, GGC revised its “Freedom of Expression Policy” such that students
would be permitted to speak anywhere on campus without having to obtain a
permit except in certain limited circumstances. GGC also removed the challenged
portion of its “Student Code of Conduct.” Both revised policies superseded the
Prior Policies and have been in full force and effect since February 28, 2017.
As a result of these changes to the Prior Policies, Appellees filed a motion to
dismiss the First Amended Complaint as moot. Approximately one year later, the
district court having taken no action on the pending motions, Appellees filed a
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supplemental brief on the issue of mootness. Specifically, Appellees apprised the
district court of two significant developments: (1) Uzuegbunam’s graduation from
GGC; and (2) this Court’s decision in Flanigan’s Enterprises, Inc. of Georgia v.
City of Sandy Springs, 868 F.3d 1248 (11th Cir. 2017) (en banc), in which we held
a prayer for nominal damages generally will not save an otherwise moot challenge
to an allegedly unconstitutional policy or law.
In their response to Appellees’ supplemental brief, Appellants insisted that,
even assuming their claims for declaratory and injunctive relief were moot, a live
controversy remained ongoing, in part because the First Amended Complaint,
properly construed in their favor, in fact included a request for compensatory
damages. At the end of their response, they indicated that, if the district court
disagreed, they should be permitted to amend their complaint to “clarify[]” their
request for damages. Such a clarification, they assured the court, “would be
simple, would pose no prejudice, and would allow this dispute to be decided on the
merits, rather than technicalities.”
D. The District Court’s Order
The district court granted both of Appellees’ motions to dismiss, though it
based its decision entirely on mootness and did not address whether the First
Amended Complaint otherwise stated a claim on which relief could be granted.
The court concluded Uzuegbunam’s graduation had mooted his claims for
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declaratory and injunctive relief, and GGC’s revised policies mooted Bradford’s
claims. Specifically, the court concluded GGC had “unambiguously terminated
the Prior Policies and there is no reasonable basis to expect that it will return to
them.” 1
The court then turned to whether the remaining damages claim was
“sufficient to support standing and save this case.” The court ultimately concluded
Appellants sought only nominal damages, rejecting what it characterized as their
“after-the-fact contentions” that they in fact sought compensatory damages.
Applying Flanigan’s, the district court then concluded such a claim for nominal
damages could not save the otherwise moot complaint, rejecting Appellants’
contentions that their case was distinguishable from Flanigan’s or fell within any
of the exceptions discussed in, or contemplated by, our opinion in that case.
Finally, the court denied Appellants’ request for leave to amend their
complaint on the ground it was not procedurally proper to seek leave to amend
through a response to a motion to dismiss. The court agreed to dismiss the claims
without prejudice, but it declined to “go as far as to direct the [Appellants] to file a
1
The district court engaged in a lengthy analysis concerning whether GGC’s change in
its policies in fact rendered Bradford’s claims for declaratory and injunctive relief moot,
applying the three-part test this Court identified in Flanigan’s. Appellants do not challenge this
portion of the district court’s analysis on appeal. That is, they do not contest the district court’s
conclusion that their claims for injunctive and declaratory relief are moot. As such, we will not
address this portion of the district court’s analysis here.
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motion for leave to amend,” noting it was “up to [Appellants] to decide how to
litigate their case.”
On the same day the district court entered its order, the clerk entered
judgment in favor of Appellees, dismissing the action without prejudice. The
instant appeal followed.
II. DISCUSSION
We review the dismissal of a case for mootness de novo. Flanigan’s, 868
F.3d at 1255. Appellants raise three issues on appeal concerning the district
court’s dismissal of the First Amended Complaint. First, they argue the district
court erred in concluding the First Amended Complaint did not include a request
for compensatory damages. Second, they argue that, even assuming the First
Amended Complaint included only a request for nominal damages, this case is
distinguishable from Flanigan’s and dismissal was not required. Finally, they
argue we should reverse the district court’s dismissal on the ground it abused its
discretion when it denied them the opportunity to amend their complaint to add an
explicit request for compensatory damages. 2 We will address each argument in
turn.
2
Appellants also argue extensively that Flanigan’s was wrongly decided. However,
“[u]nder the prior precedent rule, we are bound to follow a prior binding precedent ‘unless and
until it is overruled by this Court en banc or by the Supreme Court.’” United States v. Vega-
Castillo, 540 F.3d 1235, 1236 (11th Cir. 2008) (quoting United States v. Brown, 342 F.3d 1245,
1246 (11th Cir. 2003)). Accordingly, we limit our review to whether the district court properly
applied Flanigan’s when it dismissed the First Amended Complaint as moot.
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A. Damages Allegations in the First Amended Complaint
Appellants assert the district court erred in concluding their amended
complaint did not request compensatory damages because the court (1) construed
the complaint against them, and (2) focused solely on the prayer for relief, rather
than considering the complaint as a whole.
As Appellants note, at the motion to dismiss stage, the district court was
required to “accept[] the complaint’s allegations as true and constru[e] them in the
light most favorable to [Appellants].” Chaparro v. Carnival Corp., 693 F.3d 1333,
1335 (11th Cir. 2012) (internal quotation marks omitted). They contend the
district court failed to do so when it construed the allegations that they were
entitled to “monetary damages” and “damages in an amount to be determined by
the evidence and this Court” against them by concluding those phrases referred
solely to nominal damages.
The district court did, as Appellants note, acknowledge the somewhat
ambiguous nature of the term “monetary damages” and of Appellants’ requests for
“damages in an amount to be determined by the evidence and this Court” and “[a]ll
other further relief to which [they] may be entitled.” But the court did not then, as
Appellants contend, arbitrarily construe those admittedly ambiguous phrases
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against them. Instead, it viewed the allegations in the context of the rest of the
complaint and concluded Appellants could not have been requesting compensatory
damages. We agree with that assessment.
In particular, the district court looked to the prayer for relief—which
requested only nominal damages in addition to injunctive and declaratory relief—
and to the factual allegations in the complaint. As to the latter, the court correctly
noted that “compensatory damages in a § 1983 suit [must] be based on actual
injury caused by the defendant rather than on the ‘abstract value’ of the
constitutional rights that may have been violated.” Slicker v. Jackson, 215 F.3d
1225, 1230 (11th Cir. 2000). Such “actual injury” can include monetary loss,
physical pain and suffering, mental and emotional distress, impairment of
reputation, and personal humiliation. Id. at 1231.
But Appellants did not allege they suffered any actual injury, instead resting
their complaint—and request for damages—on the abstract injury suffered as the
result of the violation of their constitutional rights. In fact, the First Amended
Complaint mentions “injury” only twice, and in neither instance does it specify
what the injury was. It also states, at the conclusion of each cause of action, that
Appellants “suffered, and continue to suffer, irreparable harm,” though, again,
without specifying what that harm was.
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On appeal, Appellants insist, largely through oral argument, that
Uzuegbunam, at least, suffered any number of concrete injuries as a result of
Appellees’ enforcement of the Prior Policies, including loss of time and money
traveling to GGC’s campus to speak, as well as harm to his reputation and personal
humiliation stemming from the actions taken by GGC officials to stop him from
speaking. However, Appellants never identified these injuries to the district court,
resting instead on their argument that the district court should broadly construe
their vague requests for monetary damages as including unspecified compensatory
damages, and they make only passing reference in their brief on appeal to the
reputational harm suffered by Uzuegbunam. As a result, these arguments are not
properly before us, as they were not raised in the district court or, indeed, properly
briefed on appeal. See Hurley v. Moore, 233 F.3d 1295, 1297 (11th Cir. 2000)
(“Arguments raised for the first time on appeal are not properly before this
Court.”). Because these injuries were not specifically pled in the complaint or
articulated to the district court, we cannot fault the court for failing to infer these
injuries from the other allegations in the complaint.
Thus, this is not a case in which the court took phrases susceptible to more
than one interpretation—e.g., “monetary damages”—and construed them against
Appellants. Rather, the district court simply read those phrases in context and
concluded they could have only one meaning: nominal damages.
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Appellants further assert the district court erroneously focused “solely on the
prayer for relief” in concluding the First Amended Complaint did not include a
well-pled request for compensatory damages. They claim this was inconsistent
with Fed. R. Civ. P. 54(c), which states federal courts “should grant the relief to
which each party is entitled, even if the party has not demanded that relief in its
pleadings.”
The Supreme Court has instructed federal courts not to “dismiss a
meritorious constitutional claim because the complaint seeks one remedy rather
than another plainly appropriate one.” Holt Civic Club v. City of Tuscaloosa, 439
U.S. 60, 65 (1978). It has further reminded those courts that “although the prayer
for relief may be looked to for illumination when there is doubt as to the
substantive theory under which a plaintiff is proceeding, its omissions are not in
and of themselves a barrier to redress of a meritorious claim.” Id. at 66.
Here, contrary to Appellants’ assertions, the district court did not “solely”
look to the prayer for relief. Instead, it did what Holt expressly permits: it “looked
to [the prayer for relief] for illumination” because Appellants’ other vague requests
for “monetary” and other appropriate damages created “doubt as to the substantive
theory under which [they were] proceeding.” Id. There was no other “plainly
appropriate” remedy available here beyond the injunctive relief and nominal
damages Appellants expressly requested because, as previously discussed, the
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allegations in the complaint simply did not support a claim for compensatory
damages.
B. Applying Flanigan’s
Appellants further argue that, even assuming the First Amended Complaint
cannot be read to include an implicit request for compensatory damages, their
nominal damages claim presents an ongoing case or controversy notwithstanding
our decision in Flanigan’s. They argue the district court ignored portions of
Flanigan’s suggesting not all claims for nominal damages are necessarily moot.
Briefly, Flanigan’s involved a challenge to a municipal ordinance that
prohibited the sale of sexual devices. 868 F.3d at 1253-54. The plaintiffs alleged
the ordinance violated their rights under the Fourteenth Amendment. Id. Though
the challenged ordinance was never actually enforced against any of the plaintiffs,
they nonetheless preemptively challenged the constitutionality of the ordinance,
seeking injunctive and declaratory relief and asking the district court to strike
down the ordinance as unconstitutional and permanently enjoin its enforcement.
Id. at 1254. Two of the plaintiffs also sought an award of nominal damages but did
not seek compensatory damages. Id. at 1254, 1265. While the case was pending
before this Court, the city repealed the challenged ordinance, mooting the claims
for declaratory and injunctive relief and leaving nominal damages as the only
requested relief. Id. at 1254, 1263.
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Turning to “whether a prayer for nominal damages . . . is sufficient to save
[an] otherwise moot constitutional challenge,” we first acknowledged there were
certain cases in which a claim solely for nominal damages would present a live
case or controversy:
To be sure, there are cases in which a judgment in favor of a plaintiff
requesting only nominal damages would have a practical effect on the
parties’ rights or obligations. Likewise, there are situations in which
nominal damages will be the only appropriate remedy to be awarded to
a victorious plaintiff in a live case or controversy. In such
circumstances, the exercise of jurisdiction is plainly proper.
Id. at 1263-64 (footnotes omitted). We juxtaposed those cases with those in which
an award of nominal damages “would serve no purpose other than to affix a
judicial seal of approval to an outcome that has already been realized.” Id. at 1264.
We concluded the plaintiffs’ case fell decidedly in the latter category because they,
in effect, had “already won” by “reciev[ing] all the relief they requested.” Id.
We reiterated our holding “does not imply that a case in which nominal
damages are the only available remedy is always or necessarily moot,” and we
noted that where a “court determines that a constitutional violation occurred, but
that no actual damages were proven, it is within Article III powers to award
nominal damages.” Id. at 1270 n.23. Notably, we limited our discussion in this
regard to cases in which both compensatory and nominal damages were pled, but
the only available remedy was nominal damages. See id.
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Appellants argue the district court ignored this apparent limitation on the
core holding of Flanigan’s, “brushing aside the portions of Flanigan’s that show
that nominal damages claims are not automatically moot.” Specifically,
Appellants take issue with the district court’s conclusions that there was no live
controversy regarding compensatory damages and that nominal damages would
have no practical effect on the parties’ rights or obligations. Appellants insist the
district court was wrong in both respects.
First, they insist a live dispute about compensatory damages remains
ongoing as to Uzuegbunam’s challenges to the “enforcement” of the policies
against him, noting that if the specific “conduct” of the GGC officials were found
to be illegal, Uzuegbunam “could be entitled to compensatory damages.” This
appears to concern the “as-applied” portion of Uzuegbunam’s challenge to the
Prior Policies. However, as discussed above, the First Amended Complaint did not
include a well-pled request for compensatory damages, in part because it failed to
allege any concrete injuries arising from the allegedly unconstitutional conduct of
the GGC officials.
Second, Appellants argue that, in any case, awarding nominal damages here
“would have a practical effect on the parties’ rights or obligations.” They identify
two such “practical effects”: (1) “determin[ing] the disputed boundary over how
public colleges can restrict student expression”; and (2) answering the “important
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question” of whether “GGC officials violate[d] Mr. Uzuegbunam’s rights when
they censored him.” The first of these is plainly at odds with Flanigan’s, as any
opinion we or the district court issued that did little more than delineate the
“boundar[ies]” around public colleges’ regulation of student speech would
constitute exactly the sort of impermissible advisory opinion Flanigan’s sought to
avoid. See Flanigan’s, 868 F.3d at 1269-70.
As to the second “practical effect” Appellants identify, they again focus on
the allegedly unconstitutional actions GGC officials took in enforcing the policies,
as distinct from the facial challenge to the policies themselves, asserting it would
be appropriate for a court to adjudicate whether and to what extent the specific
actions taken by GGC officials violated Uzuegbunam’s constitutional rights. But
under the explicit exception in Flanigan’s implicated by Appellants’ argument,
Appellants’ right to receive nominal damages as the result of any unconstitutional
conduct on the part of GGC officials would have to flow from a well-pled request
for compensatory damages. The cases we sought to distinguish from Flanigan’s—
cases in which a claim for nominal damages was adequate, on its own, to sustain
an action—involved an ongoing controversy regarding compensatory damages
throughout the entire litigation. See id. at 1264-67 & n.18, 1270 n.23. In other
words, they all involved a well-pled complaint for compensatory damages, though
no actual damages were ultimately proven. See id. at 1270 n.23 (“This Court has
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long recognized that ‘[n]ominal damages are appropriate if a plaintiff establishes a
violation of a fundamental constitutional right, even if he cannot prove actual
injury sufficient to entitle him to compensatory damages.’” (alteration in original)
(emphasis added) (quoting KH Outdoor, LLC v. City of Trussville, 465 F.3d 1256,
1260 (11th Cir. 2006))).
Here, in contrast, the only relief Appellants actually requested, other than
declaratory and injunctive relief, was nominal damages, and there has never been
any controversy over compensatory damages. While Flanigan’s contemplates a
class of cases in which a claim for nominal damages would be sufficient to
maintain a case or controversy, this is not that case, and we decline to carve out
any new exception here. 3 Accordingly, we agree with the district court that this
case is “strikingly similar” to Flanigan’s and apply our precedent to conclude
Appellants’ claim for nominal damages cannot save their otherwise moot
constitutional challenge to the Prior Policies.
3
Notably, Appellants do not explicitly request we carve out any new exception here for
cases involving an as-applied challenge to an allegedly unconstitutional law or policy that has
been enforced against a plaintiff, instead arguing their case falls within the category of cases
Flanigan’s explicitly distinguishes. To the extent it would be appropriate for us to identify such
an exception, this is not the case to do so. The issue is not well-developed in the record below,
as Appellants never presented the district court with the argument that their case was
distinguishable from Flanigan’s on the ground it involved an as-applied—as opposed to solely a
facial—challenge to the Prior Policies. Moreover, in accordance with our description of
Flanigan’s, their argument to the district court that their case falls within the category of cases
distinguished in Flanigan’s presumes their complaint included a well-pled request for
compensatory damages, insisting they could recover nominal damages whether or not “they
ultimately receive compensatory damages.”
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C. Leave to Amend
Notwithstanding the above mootness analysis, Appellants insist that, even if
we agree with the district court’s application of Flanigan’s, we should reverse the
district court’s dismissal of their complaint on the ground it improperly denied
them the opportunity to amend their complaint to add an explicit request for
compensatory damages. We review a district court’s decision to deny leave to
amend for abuse of discretion. See Santiago v. Wood, 904 F.2d 673, 675 (11th Cir.
1990).
On appeal, Appellants primarily take issue with the district court’s assertion
that it was not procedurally proper for them to seek leave to amend via a response
to Appellees’ motion to dismiss. However, as our precedent makes clear, the
district court was right to be concerned about the procedural mechanism by which
Appellants sought to amend their complaint. See, e.g., Cita Tr. Co. AG v. Fifth
Third Bank, 879 F.3d 1151, 1157 (11th Cir. 2018) (“[T]his Court has clearly held
that ‘[w]here a request for leave to file an amended complaint simply is imbedded
within an opposition memorandum, the issue has not been raised properly.’”
(second alteration in original) (quoting Rosenberg v. Gould, 554 F.3d 962, 967
(11th Cir. 2009))).
As they did in the district court, Appellants continue to focus on the
simplicity of the proposed amendment, noting it would have involved simply
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“adding ‘compensatory and’ to the prayer for relief and a paragraph describing
[their] financial injuries.” But even assuming the relative complexity of the
proposed amendment would have any bearing on Appellants’ responsibility to seek
amendment via a properly filed motion, they failed to specifically inform the
district court of the substance of their proposed amendment, other than to indicate
they would “clarify” that they sought compensatory damages. See Newton v. Duke
Energy Fla., LLC, 895 F.3d 1270, 1277 (11th Cir. 2018) (“When moving the
district court for leave to amend its complaint, the plaintiff must ‘set forth the
substance of the proposed amendment or attach a copy of the proposed
amendment’ to its motion.” (quoting Cita Tr., 879 F.3d at 1157)). They did not,
for example, specify what additional factual allegations they would have included
to support their request for compensatory damages.
To the extent that Appellants argue the district court abused its discretion
when it entered judgment so soon after issuing its order dismissing the First
Amended Complaint as moot, we find such an argument unavailing. Appellants
contend they were deprived of the ability to file a procedurally proper motion to
amend “[a]fter the district court entered judgment immediately.” But even
assuming they were precluded from proceeding under Rule 15, see Jacobs v.
Tempur-Pedic Int’l, Inc., 626 F.3d 1327, 1344 (11th Cir. 2010) (noting that Fed. R.
Civ. P. 15(a)(2) “governs amendment of pleadings before judgment is entered; it
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has no application after judgment is entered”), Appellants could still have moved
under Rule 60(b) or 59(e) on the ground they could rectify the pleading issues in
the First Amendment Complaint through further proposed amendments.
Czeremcha v. Int’l Ass’n of Machinists & Aerospace Workers, AFL-CIO, 724 F.2d
1552, 1556 (11th Cir. 1984).
[A]fter a complaint is dismissed the right to amend under Rule 15(a)
terminates; the plaintiff, however, may still move the court for leave to
amend, and such amendments should be granted liberally. The plaintiff
may also move for relief under Rules 59(e) or 60(b) on the basis of
proposed amendments even after the action is dismissed and final
judgment is entered.
Id. (footnotes and citation omitted). The district court never acted to prevent
Appellants from seeking leave to amend following its dismissal of the First
Amended Complaint without prejudice, expressly leaving that decision in the
hands of Appellants. Accordingly, we can discern no abuse of discretion by the
district court in its handing of Appellants’ request to amend—a request they only
expressed in response to a motion to dismiss.
III. CONCLUSION
For the reasons discussed above, we affirm the district court’s dismissal of
the First Amended Complaint as moot.
AFFIRMED.
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