# Elvis Presley Enterprises, Inc. v. City of Memphis

> District Court, W.D. Tennessee · October 21, 2020

URL: https://www.frixlaw.com/law-library/cases/10440229

## Case

- **Court:** District Court, W.D. Tennessee
- **Decided:** October 21, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

)
ELVIS PRESLEY ENTERPRISES, )
INC., EPPF, LLC, AND )
GUESTHOUSE AT GRACELAND, LLC, )
)
Plaintiffs, )
)
v. ) No. 2:18-cv-2718
)
CITY OF MEMPHIS, TENNESSEE, )
)
Defendant. )
)
)
ORDER
This is an action under 42 U.S.C. § 1983 alleging
retaliation for First Amendment protected conduct. Plaintiffs
Elvis Presley Enterprises, Inc., EPPF, LLC, and Guesthouse at
Graceland, LLC (collectively “Plaintiffs” or “EPE”) allege that
the City of Memphis (“the City”), through its attorney, took an
action adverse to EPE because EPE had filed state court lawsuits
affecting the City. (D.E. No. 1 ¶¶ 71-74.) Defendant the City
moved for summary judgement (the “Motion”) on February 26, 2020.
(D.E. No. 199.) The City supplemented its Motion on July 30,
2020, and added a motion for attorneys’ fees (the Motion for
Fees). (D.E. No. 310.) The parties have responded and replied.
(D.E. No. 312; D.E. No. 314; D.E. No. 318-1.) The City moved to
exclude testimony from consideration (“Motion to Exclude”) on
September 14, 2020. (D.E. No. 316.) EPE responded to the Motion
to Exclude on September 28, 2020. (D.E. No. 320.) For the
following reasons, the Motion to Exclude is DENIED as moot, the
Motion for Fees is DENIED, and the Motion is GRANTED.
I. Background
EPE owns and operates Graceland, the former home of Elvis

Presley and a tourist attraction in Memphis, Tennessee. (Pl.’s
Statement of Additional Undisputed Material Facts, D.E. No. 312-
2 ¶ 1.)
In 2014, EPE undertook the Graceland Project, a planned
redevelopment of Graceland. (Pl.’s Resp. to Def.’s Statement of
Undisputed Material Facts, D.E. No. 312-1 ¶ 3.) To help fund
the Graceland Project, EPE submitted EPE’s Economic Impact Plan
for Graceland Economic Development Area (the “Plan”) to the City,
Shelby County, Tennessee (the “County”), and the Economic
Development Growth Engine Industrial Development Board of the
City of Memphis and County of Shelby (“EDGE”). (Id.) The Plan

included a request for tax increment financing, which would
earmark a certain amount of property taxes to support the
Graceland Project. (Id.) EDGE, the City, and the County
approved the Plan in late 2014. (Id. ¶ 5.)
In 2017, hoping to expand the Graceland Project, EPE
submitted its Supplement to Economic Impact Plan for Graceland
Economic Growth Area (the “Supplemental Plan”) to EDGE. (Id. ¶
6.) The Supplemental Plan requested approval, among other
things, of an arena capable of seating 6,200 people (the
“Arena”). (Id.)
While EDGE considered the Supplemental Plan, Memphis
Basketball, LLC (“Memphis Basketball”) contacted the City.

(Def.’s Statement of Undisputed Material Fact, D.E. No. 199-1 ¶
7.) Memphis Basketball owns and operates the Memphis Grizzlies,
a National Basketball Association franchise. (Id. ¶ 1.) Memphis
Basketball contended that the City’s approval of the Arena would
violate a contract between Memphis Basketball and the City (the
“Arena Use Agreement”), prohibiting the City from providing
public financing for competing entertainment facilities. (Id.
¶ 7.)
EDGE told EPE that EDGE would not move forward with the
approval process for the Supplemental Plan based on Memphis
Basketball’s concerns. (See id. ¶ 11.)

EPE responded by filing a declaratory judgment action in
Tennessee Chancery Court. (D.E. No. 312-1 ¶ 12.) EPE asked the
court to interpret the Arena Use Agreement. (Id.) EPE contended
that the Agreement did not prohibit the City from approving the
Arena. (Id.) The Chancery Court dismissed the case, concluding
that EPE had to demand that EDGE consider and vote on the
Supplemental Plan before EPE could seek a declaratory judgment.
(Id. ¶ 13.)
In February 2018, after the Chancery Court’s decision, EPE
asked EDGE to vote on the Supplemental Plan at its next meeting.
(D.E. No. 312-2 ¶ 18.) EDGE did not do so. (See D.E. No. 312-
1 ¶ 15.) EPE sued EDGE attempting to force EDGE to vote on the

Supplemental Plan. (Complaint, D.E. No. 1 ¶ 56.) Eventually,
however, EDGE approved the Supplemental Plan but conditioned its
approval on a court order or written agreement declaring that
approval of the Arena would not breach the Arena Use Agreement.
(Id. ¶ 14)
The County also approved the request in the Supplemental
Plan for increased tax increment financing to support the
expanded Graceland Project. (Id. ¶ 16.) As EDGE had done, the
County conditioned its approval on a court order or written
agreement declaring that approval of the Arena would not breach
the Arena Use Agreement. (Id.)

In late June 2018, EPE filed a declaratory judgment action
in Tennessee Chancery Court against the City, Memphis Basketball,
and the County to determine whether approval of the Arena would
violate the Arena Use Agreement. (Id. ¶ 17)
While that case was pending, EPE sought to move forward
with parts of the expanded Graceland Project. (See D.E. No.
312-1 ¶ 19.) EPE submitted its Application for Planned
Development Approval (the “Development Application”) to the
Memphis and Shelby County Office of Planning and Development
(the “OPD”) in August 2018. (Id.) The Development Application
included the Arena. (Id. ¶ 21.)
The OPD neither approved nor denied the Development
Application. (See id. ¶ 27.) Instead, it decided to table

consideration of the Application indefinitely, until the
Chancery Court litigation over the Arena had concluded. (Id.)
The OPD’s decision followed instructions from the Memphis City
Attorney. (See id.) In an email, the OPD planning director
told EPE that:
Earlier this week, the City Attorney requested
that [the Development Application] be deferred
until the pending litigation in Chancery Court
is concluded. I have conferred with my in-
house Division attorney and he agrees.
Therefore, [the Development Application] will
not be considered . . . until such time as the
pending legislation [sic] is concluded.

(Id.)

EPE had two administrative options following deferral of
the Development Application. (Id. ¶ 35.) EPE could resubmit
the Development Application without including the Arena as part
of the application. (Id.) EPE could also appeal the decision
to defer consideration of the Development Application by the OPD
planning director. (Id.) EPE has not taken either
administrative action. (See id. ¶ 36.)
EPE filed its complaint in this case on October 16, 2018.
(D.E. No. 1.) EPE alleges that the City, through the city
attorney, blocked the OPD from considering the Development
Application. (D.E. No. 1 ¶ 82.) EPE alleges that the City did so
for two reasons. (Id. ¶¶ 82, 91.) The first is punitive. The
City wanted to punish EPE for disagreeing with the City about

the contract with Memphis Basketball, obtaining EDGE and the
County’s conditional approvals of the Supplemental Plan, suing
the City twice in Chancery Court, and commenting publicly about
those matters. (Id. ¶ 82.) The second reason is coercive. The
City wanted to deter EPE from maintaining its latest suit against
the City and from pursuing similar conduct designed to protect
EPE’s rights and interests. (Id. ¶ 91.)
On November 6, 2018, the City filed a motion to dismiss for
failure to state a claim. (D.E. No. 8.) The motion to dismiss
was granted on EPE’s state law claims of interference with
contractual relationships and interference with business

relationships and denied on EPE’s § 1983 claim. (D.E. No. 63.)
II. Jurisdiction
The Court has federal question jurisdiction. Under 28
U.S.C. § 1331, district courts have original jurisdiction “of
all civil actions arising under the Constitution, laws, or
treaties of the United States.” EPE asserts a right to relief
against the City under § 1983. That claim arises under the laws
of the United States.
III. Standard of Review
Under Federal Rule of Civil Procedure 56, on motion of a
party, the court “shall grant summary judgment if 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). “[T]he moving party is entitled to summary
judgment when the nonmoving party ‘fails to make a showing
sufficient to establish the existence of an element essential to
that party’s case, and on which that party will bear the burden
of proof at trial.’” George v. Youngstown State University, 966
F.3d 446, 458 (6th Cir. 2020) (quoting Celotex Corp. v. Catrett,
477 U.S. 317, 322–23 (1986)).
The non-moving party has the duty to point out specific
evidence in the record sufficient to justify a jury decision in
its favor. See Fed. R. Civ. P. 56(c)(1); InterRoyal Corp. v.
Sponseller, 889 F.2d 108, 111 (6th Cir. 1989). When confronted

with a properly supported motion for summary judgment, the non-
moving party must set forth specific facts showing that there is
a genuine dispute for trial. See Fed. R. Civ. P. 56(c). A
genuine dispute for trial exists if the evidence is “‘such that
a reasonable jury could return a verdict for the nonmoving
party.’” See Wasek v. Arrow Energy Servs., 682 F.3d 463, 467
(6th Cir. 2012) (quoting Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986)). “[I]n order to survive a summary
judgement motion, the non-moving party ‘must do more than simply
show that there is some metaphysical doubt as to the material
facts.’” Lossia v. Flagstar Bancorp, Inc., 895 F.3d 423, 428
(6th Cir. 2018) (quoting Matsushita Elec. Indus. Co. v. Zenith

Radio Corp., 475 U.S. 574, 586 (1986)).
Although summary judgment must be used carefully, it “is an
integral part of the Federal Rules as a whole, which are designed
to secure the just, speedy, and inexpensive determination of
every action[,] rather than a disfavored procedural shortcut.”
FDIC v. Jeff Miller Stables, 573 F.3d 289, 294 (6th Cir. 2009)
(internal quotation marks and citations omitted).
IV. Analysis
A. Ripeness
The City argues that EPE’s retaliation claim is not ripe
because there has not been a final decision on the Development
Application. (D.E. No. 310.) The Court rejected the City’s
ripeness claim at the motion to dismiss stage because the Court

necessarily accepted two assertions made by EPE as true. See
Elvis Presley Enterprises, Inc. v. City of Memphis, Tenn., No.
2:18-cv-2718, 2019 WL 3804265, at *6 (W.D. Tenn. Aug. 13, 2019)
(“EPE I”). At this stage, those assertions no longer need be
accepted. First, the Court accepted that the Development
Application did not include the Arena. See id. at *6 n.9. This
meant that EPE had no way to resubmit the Development Application
without the inclusion of the Arena because the Development
Application purportedly already did not include the Arena. See
id. It is now clear that the Development Application did include
the Arena. EPE would be able to resubmit the Development

Application without the inclusion of the Arena to determine
whether the Development Application could be approved. Second,
the Court accepted as true that EPE had no right to appeal from
the indefinite delay of the Development Application. See id. at
*6 n.10. It is now clear that EPE could appeal the decision to
delay the Development Application indefinitely. The Court must
consider the City’s ripeness argument again at this stage of the
litigation.
Whether a claim is ripe for decision is governed by federal
law. See Brown v. Ferro Corp., 763 F.2d 798, 801 (6th Cir. 1985)
(“The ripeness doctrine not only depends on the finding of a

case and controversy and hence jurisdiction under Article III,
but it also requires that the court exercise its discretion to
determine if judicial resolution would be desirable under all of
the circumstances.”); see also Leonard v. Planning Bd. of the
Town of Union Vale, 154 F. Supp. 3d 59, 65 n.5 (S.D.N.Y. 2016)
(“[W]here, as here, the basis for the court's federal
jurisdiction is the existence of a federal question, federal law
governs. Therefore, the Court will analyze the ripeness of
Plaintiffs’ claims under federal law.”). The City relies on the
“finality” requirement, a ripeness doctrine particular to land
use cases. See Miles Christi Religious Order v. Twp. of
Northville, 629 F.3d 533, 537 (6th Cir. 2010). Finality requires
that the relevant regulatory body issue a final decision before

claims arising from land disputes ripen. See id.; see also
Bannum, Inc. v. City of Louisville, Ky., 958 F.2d 1354, 1362-63
(6th Cir. 1992) (“By finality we mean that the actions of the
city were such that further administrative action by [the
plaintiff] would not be productive.”).
1. The finality requirement applies to EPE’s claim.
Although the finality requirement originated in the context
of takings claims, see Williamson Cty. Reg'l Planning Comm'n v.
Hamilton Bank of Johnson City, 473 U.S. 172, 186 (1985),
overruled on other grounds by Knick v. Twp. of Scott, 139 S. Ct.
2162 (2019), two Sixth Circuit cases have extended the finality
requirement to First Amendment retaliation claims, see Dubuc v.

Twp. of Green Oak, 406 F. App'x 983, 990-91 (6th Cir. 2011);
Insomnia, Inc. v. City of Memphis, 278 F. App'x 609, 616 (6th
Cir. 2008). The Insomnia court adopted the following two-prong
test for determining whether the finality requirement should
preclude a First Amendment retaliation claim: “‘(1) whether the
[plaintiffs] experienced an immediate injury as a result of [the
defendant's] actions and (2) whether requiring the [plaintiffs]
to pursue additional administrative remedies would further
define their alleged injuries.’” Insomnia, 278 F. App’x at 615
(quoting Murphy v. New Milford Zoning Comm'n, 402 F.3d 342, 351
(2d Cir. 2005)).
In Insomnia, plaintiffs claimed their application to

subdivide two parcels of land into three was denied because of
animus against adult businesses. Id. at 610-11. The Land Use
Control Board, which had denied the application, required
plaintiffs to resubmit it as a planned development, rather than
a subdivision. Id. at 611. Plaintiffs instead appealed to the
City Council, which rejected the appeal. Id. Plaintiffs then
filed suit in federal court. Id.
The finality requirement applied in Insomnia based on the
two-prong Murphy test. Insomnia, 278 F. App’x at 615-16; see
Murphy, 402 F.3d at 351. Under the first prong, plaintiffs had
not suffered an immediate injury because if they had resubmitted

their application as a planned development “there [was] a chance
that their proposal [would] be approved” and “under such
circumstances, Plaintiffs [would] be entitled to proceed with
the subdivision of their land,” which would “obviate the need
for federal review.” Id. at 615. Under the second prong,
requiring resubmission of the application as a planned
development would, if the plan were rejected, “further define
the contours of Plaintiffs’ claim of First Amendment
retaliation.” Id. at 616.
EPE has experienced no immediate injury.
EPE contends not only that it has suffered an immediate
injury, but that, because its injury arises outside the land use
context altogether, the finality requirement should not apply.
EPE claims that the retaliatory act was not the OPD’s decision

to delay indefinitely, but the city attorney’s interference with
the OPD’s decision.
EPE’s injury arises in the context of land use.
Interference by the city attorney, on its own, would not be an
injury. In Dubuc, the city attorney advised the Building Zoning
Administrator to issue no more permits for construction work on
a parcel because plaintiffs had filed a lawsuit against the city.
Dubuc, 406 F. App’x 983, 985 (6th Cir. 2011). Despite the
retaliatory action by the city attorney, the ripeness issue was
“tied to [the] finality of the underlying land use decision.”
EPE I, 2019 WL 3804265, at *6 n.11; see Dubuc, 406 F. App’x at

990-91. In this case, despite the alleged retaliation by the
city attorney, the injury stems from the land use decision. EPE
I, 2019 WL 3804265, at *10 n.14 (“The source of EPE's harm is
the OPD's decision, allegedly instructed by the city attorney,
to defer consideration of the Development Application
indefinitely.”).
EPE also alleges immediate injury stemming from the OPD’s
decision to delay the Development Plan indefinitely. EPE claims
that it is now subject to a “Kafkaesque nightmare” of bureaucracy
requiring it to resubmit the Development Plan without the Arena
or to appeal the OPD’s decision. Resubmitting an altered plan
(Insomnia) and appealing from an adverse land use decision

(Dubuc), EPE’s available administrative remedies, are exactly
the administrative remedies that were available in the Sixth
Circuit cases applying the finality requirement to retaliation
claims. See Insomnia, 278 F. App’x at 615 (“If Plaintiffs file
a renewed plan as a proposed development . . . .”); Dubuc, 406
F. App’x at 991 (“Pursuing this ability to appeal . . . .”).
Implicit in those decisions is that pursuit of the administrative
remedies themselves cannot be the immediate injury. See Dubuc,
406 F. App’x at 991; Insomnia, 278 F. App’x at 615.
EPE alleges that it faces the costs of its inability to
move forward with development because of the OPD decision to

delay the Development Application indefinitely. That is exactly
the type of non-immediate injury that plaintiffs in Dubuc and
Insomnia faced. See Dubuc, 406 F. App’x at 990-91; Insomnia,
278 F. App’x at 615.
EPE has experienced no immediate injury.
Requiring finality would “further define the
contours” of the retaliation claim.
The alleged injuries could be further defined by pursuit of
administrative remedies. That demonstrates the finality
requirement should be applied to EPE’s claim. As in Insomnia,
if a resubmission of the Development Plan that did not include
the Arena were denied, or an appeal were denied, those denials
would “further define the contours” of EPE’s retaliation claim

because denial could be evidence of further retaliation.
Insomnia, 278 F. App’x at 616.
Because EPE has experienced no immediate injury and any
injury would be further defined by EPE’s pursuit of its
administrative remedies, the finality requirement applies to
EPE’s claims.
2. EPE has not received a final decision, and so its
claim fails to satisfy the finality requirement.
The finality requirement can be satisfied by exhaustion of
administrative remedies or futility. See Bannum, 958 F.2d at
1363 (“This test, of course, can be met by the exhaustion of
remedies. It can also be met by other evidence and can be
satisfied prior to compliance with all the required procedures.
. . . The ‘futility exception’ to the threshold requirement of
finality . . . is but another way of articulating the analysis
explained above.”). The City asserts that EPE has not exhausted
its administrative remedies. EPE has not claimed that it would
be futile to do so.
The undisputed evidence shows that EPE had two
administrative options. (See D.E. No. 312-1 at 8515-16.) EPE
could revise its application such that the Arena was not included
as part of the Development Application and resubmit the
Development Application for consideration. (Id.) EPE could
appeal the decision to the Memphis and Shelby County Board of

Adjustment. (Id.)
Failure to pursue either of its remedies
renders EPE’s claim unripe.
It is not apparent that an appeal would not resolve EPE’s
harm. For example, in Dubuc, the city attorney directed the
Building Zoning Administrator to stop issuing construction
permits for plaintiffs’ parcel. The issue was not that the
permits had yet to be decided. Even if the delayed permits had
been constructively denied, the First Amendment retaliation
claim would not have been ripe because plaintiffs had not
appealed that denial. Dubuc, 406 F. App’x at 990-91. The claim
was not ripe because it was “not apparent that [plaintiffs’]
issues could not be resolved with further administrative action.”
Id. at 991.
EPE’s claim could also be resolved by resubmitting the
Development Plan without inclusion of the Arena. In Insomnia,
resubmission of the subdivision plan as a planned development
was required to give the city more control. Insomnia, 278 F.
App’x at 615. If the Arena were removed from the Development
Plan and the Development Plan were resubmitted, giving the City
assurance that there would be no violation of the Arena Use
Agreement, “there is a chance [plaintiffs’] proposal will be
approved.” Insomnia, 278 F. App’x at 615.
Finding EPE’s claim unripe promotes policy
considerations.
As in Insomnia, three of four policy concerns promoted by
finality are furthered by finding that there has been no final
decision in this case. Insomnia, 278 F. App’x at 616.
First, “requiring a claimant to obtain a final decision
from a local land use authority aids in the development of a
full record.” Id. at 613 (quoting Murphy, 402 F.3d at 348). In

this case, a fuller record developing the contours of the injury
would help the Court make its determination about whether a
“person of ordinary firmness” would be deterred by that injury
from continuing protected First Amendment conduct. See Thaddeus-
X v. Blatter, 175 F.3d 378, 397 (6th Cir. 1999).
Second, finality “enforces the long-standing principle that
disputes should be decided on non-constitutional grounds
whenever possible.” Insomnia, 278 F. App’x at 613 (quoting
Murphy, 402 F.3d at 348). If relief can be had through the
administrative process in this case, which cannot be determined
without requiring finality, the Court can avoid “judicial
entanglement in [a] constitutional dispute[].” Id. (quoting
Murphy, 402 F.3d at 348).
Third, “federalism principles also buttress the finality
requirement.” Id. (quoting Murphy, 402 F.3d at 348). Requiring
a final decision about the land use issue in this case “evinces
the judiciary’s appreciation that land use disputes are uniquely

matters of local concern more aptly suited for local resolution.”
Id. (quoting Murphy, 402 F.3d at 348).
B. Attorney’s Fees
The City argues that it is entitled to an award of
attorneys’ fees pursuant to 42 U.S.C. § 1988(b). “[W]hile
prevailing plaintiffs are entitled to attorneys[’] fees under
that statute in all but special circumstances, prevailing
defendants are entitled to attorneys[’] fees much less
frequently.” Wolfe v. Perry, 412 F.3d 707, 720 (6th Cir. 2005).
“[A] prevailing defendant should only recover upon a finding by
the district court that ‘the plaintiff’s action was frivolous,
unreasonable, or without foundation, even though not brought in

subjective bad faith.’” Wayne v. Village of Sebring, 36 F.3d
517, 530 (6th Cir. 1994) (quoting Hughes v. Rowe, 449 U.S. 5, 14
(1980)) (emphasis in original). “Application of these standards
requires inquiry into the plaintiffs’ basis for bringing suit.”
Smith v. Smythe-Cramer Co., 754 F.2d 180, 183 (6th Cir. 1985).
“The Supreme Court has noted, however, that ‘[i]n applying these
criteria, it is important that a district court resist the
understandable temptation to engage in post hoc reasoning by
concluding that, because a plaintiff did not ultimately prevail,
his action must have been unreasonable or without foundation.’”
Wolfe, 412 F.3d at 720 (quoting Christiansburg Garment Co. v.
EEOC, 434 U.S. 412, 421-22 (1978)).

Although, as the City argues, EPE’s allegation that the
Arena was not included in the Development Application was
inaccurate, EPE’s suit is not frivolous, unreasonable, or without
foundation. The City relies on Owens v. Swan, 962 F. Supp. 1436
(D. Utah 1997) for the proposition that an inaccurate or
untruthful representation to the Court warrants an award of fees
to the prevailing defendant. However, in Owens, the inaccurate
representation formed the basis for a claim in the complaint.
Owens, 962 F. Supp. at 1442 (“[T]he record establishes that
plaintiffs’ amended complaint . . . was based on a factual
allegation which was untrue”). Here, the inaccurate

representation was important, but ancillary, to the alleged
retaliation that formed the basis for EPE’s claim. The Court
declines to award attorneys’ fees under 42 U.S.C. § 1988(b).
V. Conclusion
For the forgoing reasons, the Motion to Exclude is DENIED
as moot, the Motion for Fees is DENIED, and the Motion is GRANTED.
So ordered this _21st_ day of October, 2020.

/s/ Samuel H. Mays, Jr.
SAMUEL H. MAYS, JR.
UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10440229. Public record. Not legal advice.