IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI CENTRAL DIVISION

TRINITY LUTHERAN CHURCH OF COLUMBIA, INC.

) ) ) Plaintiff, ) ) v. ) Case No. 2:13-cv-04022-NKL ) SARA PARKER PAULEY, in her official ) Capacity as Director of the Missouri ) Department of Natural Resources Solid ) Waste Management Program, ) ) Defendant. ) ______________________________________________________________________________ SUGGESTIONS IN SUPPORT OF PLAINTIFF’S MOTION FOR RECONSIDERATION REQUESTING LEAVE TO AMEND COMPLAINT Pursuant to Rules 15(a), 59(e), and 60(b) of the Federal Rules of Civil Procedure, Plaintiff Trinity Lutheran Church (“Trinity”) respectfully requests that this Court reconsider its Order of September 26, 2013 dismissing Plaintiff’s complaint with prejudice for failure to state a claim. The Court committed a manifest error of law when it overlooked the sufficiency of Trinity’s complaint, reached the legal merits of Trinity’s case, and considered the sufficiency of Trinity’s evidence on a Rule 12(b)(6) motion to dismiss. The proper scope of a motion to dismiss is the sufficiency of the legal pleading, not whether the plaintiff will prevail on the merits of its case. Trinity therefore seeks relief from the judgment, and requests that the Court reopen the case and permit it to proceed to discovery. Through discovery that occurred prior to this Court’s dismissal of the case, Trinity uncovered evidence that at least fifteen other religious schools, daycares, and churches have received scrap tire surface material through the State’s grant program. Evidence of these 1 Case 2:13-cv-04022-NKL Document 36-1 Filed 10/23/13 Page 1 of 10

religious recipients drastically undercuts any purported interest the State may have had to support its action. Trinity therefore requests that this Court permit the Church to amend its complaint to include this new evidence. I.

Legal Standard for a Motion for Reconsideration. “A motion for reconsideration ‘serve[s] the limited function of correcting manifest errors

of law or fact or ... present[ing] newly discovered evidence” after a final judgment.’” Bradley Timberland Res. v. Bradley Lumber Co., 712 F.3d 401, 407 (8th Cir. 2013) (internal cite omitted). Trinity brings this motion for reconsideration pursuant to Federal Rules of Civil Procedure Rule 59(e) and Rule 60(b). “Rule 59(e) motions [to alter or amend judgment] serve the limited function of correcting manifest errors of law or fact or to present newly discovered evidence.” U.S. v. Metro. St. Louis Sewer Dist., 440 F.3d 930, 933 (8th Cir. 2006). “Rule 60(b) motions … [request relief from] a final order on certain enumerated grounds such as excusable neglect, fraud, newly discovered evidence, or ‘any other reason that justifies relief.’” Crest Const. II, Inc. v. On Time Auto, 07-0728-CV-W-DGK, 2010 WL 4630830 (W.D. Mo. Nov. 4, 2010) aff'd sub nom. Crest Const. II, Inc. v. Doe, 660 F.3d 346 (8th Cir. 2011). District courts have wide discretion in granting a motion for reconsideration. See Hagerman v. Yukon Energy Corp., 839 F.2d 407, 414 (8th Cir.1988) (noting a court’s broad discretion in granting a Rule 59(e) motion); Atkinson v. Prudential Prop. Co., Inc., 43 F.3d 367, 371 (8th Cir.1994) (noting court’s wide discretion in granting a Rule 60(b) motion). It affords a district court the opportunity “to rectify its mistakes in the period immediately following the entry of judgment.” Norman v. Arkansas Dep't of Educ., 79 F.3d 748, 750 (8th Cir. 1996) (quoting White v. New Hampshire Dep't of Employment Sec., 455 U.S. 445, 450 (1982)).

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II.

This Court Committed a Manifest Error of Law When It Ignored the Sufficiency of Trinity’s Complaint, Decided the Legal Merits of Trinity’s Case, and Considered the Sufficiency of Trinity’s Evidence on a Motion to Dismiss. The Court had before it Defendant Pauley’s Rule 12(b)(6) Motion to Dismiss. “The

purpose of a Rule 12(b)(6) motion to dismiss for failure to state a claim is to test the legal sufficiency of a complaint so as to eliminate those actions ‘which are fatally flawed in their legal premises and designed to fail, thereby sparing litigants the burden of unnecessary pretrial and trial activity.’” Wilson v. Duckett Truck Ctr., 1:12-CV-85 SNLJ, 2013 WL 384717 (E.D. Mo. Jan. 31, 2013) (citing Young v. City of St. Charles, 244 F.3d 623, 627 (8th Cir. 2001)). But rather than test the legal sufficiency of Trinity’s complaint, the Court exceeded the scope of a 12(b)(6) analysis by considering both the merits of Trinity’s legal claims and the sufficiency of Trinity’s evidence. A. Trinity Properly Pled that the State Lacked a Compelling Government Interest In Discriminating Against Churches. “The Federal Rules do not require great precision in pleadings,” Clemons v. Lombardi, 4:13CV458 CDP, 2013 WL 3489870 (E.D. Mo. July 10, 2013), nor even detailed factual allegations, C.N. v. Willmar Pub. Schs., Indep. Sch. Dist. No. 347, 591 F.3d 624, 629 (8th Cir. 2010). The Federal Rules only require that a complaint include “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The plausibility of a complaint turns on whether the facts alleged allow a court to “draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. Trinity pled ample facts for the Court to infer that the State violated Trinity’s constitutional rights by denying it participation in the scrap tire program solely because it is a church. See Alexander v. Hedback, 718 F.3d 762, 765 (8th Cir. 2013) (“To state a claim under 42 U.S.C. § 1983, a plaintiff must show that he was deprived of a right secured by the 3 Case 2:13-cv-04022-NKL Document 36-1 Filed 10/23/13 Page 3 of 10

Constitution…and that the deprivation was committed by a person acting under color of state law.”). For example, Trinity pled that the Church ranked fifth out of fourteen grant projects that were funded (Ver. Compl. ¶¶31-32); the State denied Trinity a grant solely because it is a church (¶¶33, 35, 41); the denial was caused by a State policy denying aid to churches (¶¶25, 40, 43); other similarly situated non-profit organizations received the scrap tire grants (¶52); and the State has no compelling interest sufficient to justify denying Trinity a grant solely because it is a church (¶¶57, 70, 88). Trinity pled a prima facie claim that the State violated its constitutional rights, which is a plausible claim for relief sufficient to overcome a Rule 12(b)(6) motion to dismiss. Thus, the Court erred in dismissing Trinity’s complaint. Trinity respectfully requests that the Court alter its Order and reinstate Trinity’s complaint. B. The Court Erred By Reaching the Merits of Trinity’s Legal Claims on a Motion to Dismiss. Rather than simply evaluating whether Trinity pled a plausible claim for relief, the Court reached the legal merits of the case. For example, the Court rejected Trinity’s quid pro quo theory of aid. Order, pg. 4-6. The Court also dismissed Trinity’s argument that the state’s funding of St. Louis University, a Catholic-Jesuit University, undercut the state’s alleged compelling interest. Order, pg. 8-11 (evaluating the evidence of the state’s funding of a religious school as shown in St. Louis University v. Masonic Temple Association of St. Louis, 220 S.W.3d 721 (Mo. en banc 2007)). In sum, the Court made numerous determinations concerning the legal merits of Trinity’s claims, and concluded that Trinity would not prevail on the merits. But the “issue on a motion to dismiss is not whether the plaintiff will ultimately prevail, but whether the plaintiff is entitled to present evidence in support of his or her claim.” Krakowski v. Am. Airlines, Inc., 927 F. Supp. 2d 769, 772 (E.D. Mo. 2013) (citing Rosenberg v. 4 Case 2:13-cv-04022-NKL Document 36-1 Filed 10/23/13 Page 4 of 10

Crandell, 56 F.3d 35, 37 (8th Cir.1995)) (emphasis added). As put by another court, a Rule 12(b)(6) motion to dismiss “does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses.” Republican Party of N.C v. Martin, 980 F.2d 943, 952 (4th Cir.1992). These “contests” are best reserved for summary judgment or trial. The Court did not dismiss Trinity’s complaint because it failed to state a plausible claim for relief, or because the Court was unable to reasonably infer that the State was liable for the misconduct. See Twombly, 550 U.S. at 570. It dismissed Trinity’s complaint by disagreeing with Trinity’s arguments the state lacked a compelling interest to justify its actions in this case. But if the state has indeed funded other similar organizations, like the fifteen other examples of daycares and schools that are controlled by a church and that received a scrap tire grant, then the state’s alleged compelling interest is severely undercut. Consequently, the Court’s analysis exceeds the scope of Rule 12(b)(6) motion, and is manifest error. As discussed above, Trinity pled sufficient facts in its complaint to state a plausible claim for relief, and should be permitted to proceed to discovery. Thus, Trinity requests that this Court amend its judgment to reinstate the case. C. The Court Erred By Analyzing the Sufficiency of Trinity’s Evidence that the State Has No Compelling Interest in Discriminating Against Churches on a Motion to Dismiss. In addition to erroneously deciding the legal arguments presented, rather than whether a claim has been plead, the Court moved beyond the scope of a 12(b)(6) analysis and determined that Trinity failed to state a claim because of insufficient evidence that the state has no compelling interest in discriminating against churches. Trinity pled that the State lacks a compelling government interest sufficient to justify its discrimination against churches. (Ver. Compl. ¶¶57, 70, 88). The State attempts to justify this

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disparate treatment of churches through its Blaine Amendment, which erects a “high wall of separation between church and state.” But as Trinity noted in its briefing on the matter, to the extent the State may have had a compelling interest in its heightened separation between church and state, this interest has been drastically undercut by increased state funding to religious organizations in recent years. The Church offered St. Louis University v. Masonic Temple Association of St. Louis, 220 S.W.3d 721 (Mo. en banc 2007) as an example of state funding going to a pervasively religious institution. The Court, however, dismissed Trinity’s St. Louis University example and stated: Trinity’s counsel also sought discovery about whether the State consistently complies with Article 7, but Trinity has failed to identify evidence that might support its claim, nor has it shown that a state could ever forfeit its interest in complying with its own laws. Order, pg. 13 (emphasis added). Trinity did identify evidence to support its claim that the State has no compelling interest in discriminating against churches, which the Court dismissed. But a plaintiff is not required to prove its case in its complaint. Federal pleading rules do not require a plaintiff to make detailed factual allegations, much less produce all evidence in support of its claim to avoid a 12(b)(6) dismissal. Such an onerous pleading requirement would eliminate the need to conduct discovery on the matter and essentially convert a Rule 12(b)(6) motion to a summary judgment motion. The threshold for overcoming a 12(b)(6) dismissal is a low one – Trinity need only plead a plausible claim for relief. As discussed above, it has done so. Thus, Trinity should be permitted to prove its case through discovery. It respectfully requests that this Court amend the judgment to cure this manifest error of law and reinstate the complaint.

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III.

Trinity Requests Leave to Amend Its Complaint With New Evidence That The State Granted Tire Scrap Materials to Numerous Religious Entities. Moreover, Trinity also requests permission to amend its complaint in light of newly

discovered evidence that the State has repeatedly given scrap tire surface grants to churches, furthering demonstrating the State’s lack of a compelling interest in its purported high wall of separation between church and state. The State disclosed during discovery that other religious entities have received scrap tires through the grant program. After further investigation, Trinity located a document entitled “Prior Recipients of Scrap Tire Surface Material” published on the Department of Natural Resources website, http://www.dnr.mo.gov. Not just one or two religious organizations, but at least fifteen religious organizations – including several churches – have received scrap tires. These recipients include: 1. First Christian Church Daycare 2. Christian Chapel Academy 3. Heartland Tabernacle, First Baptist Church of Belton 4. St. Joseph School 5. St. Joseph School PTO 6. First Baptist Church 7. St. Stanislaus School 8. Grace Child Care Corner 9. New Covenant Academy 10. Tri-County Christian School 11. St. Patrick’s School 12. St. Therese Church of the Diocese of Kansas City 13. First Christian Church dba Noah’s Ark Children Center 14. St. Peter’s School 15. Torah Prep, Division of Torah Center Midwest, Inc. See Attachment 1, Exhibit B “Prior Recipients of Scrap Tire Surface Material.” Each one of these organizations is overtly religious and controlled by a church, as is evidenced from their websites. See Attachment 1, Exhibit C “Prior Recipients of Scrap Tire Surface Material

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Websites.” The list is current only through October 2010, so additional religious schools and churches may have received scrap tire grants during the intervening three years. Trinity therefore seeks leave to amend its complaint, for the first time, to include this newly discovered evidence. Rule 15(a)(2) provides that “a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires.” “All circuits acknowledge that post-judgment leave to amend may be granted if timely requested.” U.S. ex rel. Roop v. Hypoguard USA, Inc., 559 F.3d 818, 823 (8th Cir. 2009). This amendment is necessary to serve justice. The State claims that it has a compelling interest in excluding Trinity from its scrap tire program solely because Trinity is a church and its participation would violate Missouri’s Blaine Amendment. The Court accepted this argument, and dismissed Trinity’s lawsuit on the assumption that the Church could not produce evidence that the State lacks a compelling interest in its heightened separation between church and state. But the State itself disclosed in discovery that other religious schools and churches have received scrap tire grants from the State of Missouri. This fact drastically undercuts any purported interest the State may claim in refusing scrap tires to Trinity solely because it is a church. It would be a grave miscarriage of justice to disallow an amendment that directly undercuts the State’s position and Court’s rationale for dismissal. Thus, Trinity respectfully requests that this Court permit it to amend its complaint with this newly discovered evidence. IV.

Conclusion. The Court manifestly erred in overlooking the sufficiency of Trinity’s complaint,

reaching the legal merits of the case, and analyzing the sufficiency of Trinity’s evidence at the

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motion to dismiss stage. Therefore, Trinity respectfully requests that this Court reconsider its Order, reinstate Trinity’s case, and permit Trinity to amend its complaint with newly discovered evidence that the State of Missouri grants scrap tires to other religious organizations.

Respectfully submitted, this 23rd day of October, 2013.

s/ Joel L. Oster______________________ Joel L. Oster Missouri Bar # 50513 [email protected] Erik W. Stanley* Kansas Bar # 24326 [email protected] ALLIANCE DEFENDING FREEDOM 15192 Rosewood Leawood, Kansas 66224 (913) 685-8000 (913) 685-8001 Michael K. Whitehead Missouri Bar # 24997 THE WHITEHEAD LAW FIRM, LLC 1100 Main Street, Suite 2600 Kansas City, Missouri 64105 (816) 876-2600 (916) 221-8763 fax [email protected] ATTORNEYS FOR PLAINTIFF *Admitted Pro Hac Vice

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CERTIFICATE OF SERVCE I hereby certify that on this 23rd day of October, 2013, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system, which sent notification of such filing to: Jeremy Knee Don Willoh Missouri Attorney General’s office PO Box 899 Jefferson City, MO 65102

s/ Joel L. Oster JOEL L. OSTER

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