Case: PEN American Center Inc v. Escambia County School District

3:23-cv-10385 | U.S. District Court for the Northern District of Florida

Filed Date: May 17, 2023

Case Ongoing

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Case Summary

This lawsuit challenges the decisions of Escambia County in Florida to remove and restrict certain books from public school libraries. The plaintiffs in this case included PEN America, a nonprofit organization that represents authors throughout the United States whose books have been targeted for removal or restriction; Penguin Random House, the publisher of many books targeted for removal or restriction; five authors whose books have been targeted for removal or restriction (the “Author Plaint…

This lawsuit challenges the decisions of Escambia County in Florida to remove and restrict certain books from public school libraries. The plaintiffs in this case included PEN America, a nonprofit organization that represents authors throughout the United States whose books have been targeted for removal or restriction; Penguin Random House, the publisher of many books targeted for removal or restriction; five authors whose books have been targeted for removal or restriction (the “Author Plaintiffs”); and the parents of students attending Escambia County public schools (the “Parent Plaintiffs”). Represented by the Protect Democracy Project and private counsel, the plaintiffs brought this case in the United States District Court for the Northern District of Florida against the Escambia County School District and the Escambia County School Board on May 17, 2023.

In the complaint, the plaintiffs specifically alleged that the defendants’ decisions to remove or restrict access to certain books violated the First and Fourteenth Amendments. PEN America, the Author Plaintiffs, and Penguin Random House alleged that the defendants violated their First Amendment rights by discriminating against certain viewpoints that the school district disagreed with. The Author Plaintiffs further claimed that the defendants’ book-banning practices violated their right to Equal Protection under the Fourteenth Amendment by discriminating specifically against books by and about people of color and the LGBTQ+ community. The Parent Plaintiffs argued that the defendants violated their rights under the First and Fourteenth Amendment, since these Amendments protect the right to receive information and ideas. The plaintiffs claimed overall that the defendants’ removal of certain books from public school libraries impermissibly went beyond the requirements of HB 1557—commonly known as the “Don’t Say Gay Bill”—which only applied to classroom instruction and not library materials. The plaintiffs sought attorneys’ fees and preliminary and permanent injunctive relief that would require the defendants to replace removed books in the public school libraries, and enjoin them from removing or restricting access to all targeted books in the future. This case was assigned to Judge T. Kent Wetherell.

While this lawsuit was pending, the State of Florida passed HB 1069, which went into effect on July 1, 2023. HB 1069 provided that any materials available in a school or classroom library that “depicts or describes sexual conduct” as defined by Florida law was subject to challenge and the state prescribed procedures for adjudicating those challenges. Under HB 1069, parents were not allowed to opt in to allowing their children to access the challenged books. The Escambia County School Board announced on June 20, 2023 that it had taken emergency action to change its own public school library book challenge policy to comply with HB 1069.

On July 24, 2023, the plaintiffs filed an amended complaint, which included additional parents defendants as plaintiffs to the case, and removed Escambia County School District as a party, leaving the Escambia County School Board as the sole defendant in the case. The amended complaint also restricted its allegations to include only those book removals which occurred prior to July 1, 2023, before HB 1069 went into effect.

The defendant filed a motion to dismiss the plaintiffs’ amended complaint for failure to state a claim on August 21, 2023. The defendant first argued that HB 1069 and the defendant’s responsive rule changes defeated the plaintiffs’ claims because the court could not enjoin the defendant from enforcing a book banning policy that no longer existed. Nor, the defendant argued, could the plaintiffs have a meritorious claim against the school board for complying with Florida state law. The defendant further argued that the plaintiffs lacked standing because the book banning policy that they challenged no longer existed, thus none of the plaintiffs had suffered an injury in fact. Finally, the defendant argued that the plaintiffs’ claims were moot because under HB 1069, the school board no longer made final decisions about whether to remove a book from public school libraries. Rather, under HB 1069, the Florida Department of Education now made all final decisions. Therefore, the defendant moved to dismiss the case for lack of standing and mootness arising from the passage of HB 1069. On August 23, 2023, the court accepted an amicus brief from the State of Florida that urged the court to grant the defendant’s motion to dismiss on the ground that the plaintiffs had no cognizable First Amendment claim.

The plaintiffs responded to the defendant’s motion to dismiss on September 18, 2023, arguing primarily that the defendant had misconstrued the impact of HB 1069 on this case and the relevant laws defining standing. On September 26, 2023, the court accepted two amicus briefs—one from the Florida NAACP and Equality Florida Action and one from a group of Florida law professors—which argued against the defendant’s motion to dismiss.

On January 10, 2024, the court heard oral arguments regarding the defendant’s motion to dismiss. The State of Florida participated in the oral argument. Two days later, on January 12, 2024, the court granted in part and denied in part the defendant’s motion to dismiss. 2024 WL 133213. The court granted the motion to dismiss Count III of the amended complaint, stating it did not state a plausible equal protection claim because the plaintiffs did not allege that the policies pursuant to which the defendant was making its removal and restriction decisions were discriminatory, nor could the plaintiffs have done so because the policies are facially neutral and based on legitimate pedagogical concerns. The court denied the defendant’s motion to dismiss with regard to all the other counts, allowing the viewpoint discrimination and right to receive information claims to proceed. This case is ongoing.

Summary Authors

Sarah Portwood (11/9/2023)

Tallulah Wick (4/3/2024)

People

For PACER's information on parties and their attorneys, see: https://www.courtlistener.com/docket/67400156/parties/pen-american-center-inc-v-escambia-county-school-district/


Attorney for Plaintiff

AGARWAL, SHALINI GOEL (Florida)

BOYD, KAMERA ELLA (Florida)

Attorney for Defendant

BAER, NICHOLAS ELI (Florida)

BUSCHEL, ROBERT C (Florida)

Expert/Monitor/Master/Other

BELL, DANIEL WILLIAM (Florida)

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Documents in the Clearinghouse

Document
1

3:23-cv-10385

Complaint

PEN American Center, Inc. v. Escambia County School District

May 17, 2023

May 17, 2023

Complaint
27

3:23-cv-10385

Amended Complaint

PEN American Center, Inc. v. Escambia County School Board

July 24, 2023

July 24, 2023

Complaint
31-1

3:23-cv-10385

Brief of Amicus Curiae the State of Florida in Support of Defendant's Motion to Dismiss

Aug. 22, 2023

Aug. 22, 2023

Pleading / Motion / Brief
65

3:23-cv-10385

Order on Motion to Dismiss

Jan. 12, 2024

Jan. 12, 2024

Order/Opinion

2024 WL 2024

Docket

See docket on RECAP: https://www.courtlistener.com/docket/67400156/pen-american-center-inc-v-escambia-county-school-district/

Last updated April 3, 2024, 5:15 p.m.

ECF Number Description Date Link Date / Link
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COMPLAINT against All Defendants ( Filing fee $ 402 receipt number AFLNDC-7872809.), filed by KYLE LUKOFF, LINDSAY DURTSCHI, ANN NOVAKOWSKI, SARAH BRANNEN, PENGUIN RANDOM HOUSE LLC, GEORGE M JOHNSON, PEN AMERICAN CENTER INC, ASHLEY HOPE PEREZ, DAVID LEVITHAN. (Attachments: # (1) Exhibit 1 -, # (2) Exhibit 2, # (3) Exhibit 3, # (4) Exhibit 4, # (5) Exhibit 5, # (6) Exhibit 6, # (7) Exhibit 7, # (8) Exhibit 8, # (9) Exhibit 9, # (10) Exhibit 10, # (11) Exhibit 11, # (12) Exhibit 12, # (13) Exhibit 13, # (14) Exhibit 14, # (15) Exhibit 15, # (16) Exhibit 16, # (17) Exhibit 17, # (18) Exhibit 18, # (19) Exhibit 19, # (20) Exhibit 20, # (21) Exhibit 21, # (22) Exhibit 22, # (23) Exhibit 23, # (24) Exhibit 24, # (25) Exhibit 25, # (26) Exhibit 26, # (27) Exhibit 27, # (28) Exhibit 28, # (29) Exhibit 29, # (30) SUMMONS FOR ESCAMBIA COUNTY SCHOOL DISTRICT, # (31) SUMMONS FOR ESCAMBIA COUNTY SCHOOL BOARD) (AGARWAL, SHALINI)

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28 Exhibit 28

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29 Exhibit 29

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30 SUMMONS FOR ESCAMBIA COUNTY SCHOOL DISTRICT

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31 SUMMONS FOR ESCAMBIA COUNTY SCHOOL BOARD

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May 17, 2023

May 17, 2023

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CIVIL COVER SHEET. (AGARWAL, SHALINI)

May 17, 2023

May 17, 2023

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Corporate Disclosure Statement/Certificate of Interested Persons by PEN AMERICAN CENTER INC. (AGARWAL, SHALINI)

May 17, 2023

May 17, 2023

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Corporate Disclosure Statement/Certificate of Interested Persons by PENGUIN RANDOM HOUSE LLC. (AGARWAL, SHALINI)

May 17, 2023

May 17, 2023

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Summons Issued as to ESCAMBIA COUNTY SCHOOL DISTRICT (# (1) Summons - ESCAMBIA COUNTY SCHOOL BOARD) (mb)

1 Summons - ESCAMBIA COUNTY SCHOOL BOARD

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May 18, 2023

May 18, 2023

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AFFIDAVIT of Service for SUMMONS; COMPLAINT WITH EXHIBITS; CIVIL COVER SHEET; RULE 7.1 STATEMENT TRISTIAN WILLIAMS served on ESCAMBIA COUNTY SCHOOL DISTRICT on 5/24/2023, filed by PEN AMERICAN CENTER INC. (AGARWAL, SHALINI)

May 25, 2023

May 25, 2023

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AFFIDAVIT of Service for SUMMONS; COMPLAINT WITH EXHIBITS; CIVIL COVER SHEET; RULE 7.1 STATEMENT TRISTIAN WILLIAMS served on ESCAMBIA COUNTY SCHOOL BOARD on 5/24/23, filed by PEN AMERICAN CENTER INC. (AGARWAL, SHALINI)

May 25, 2023

May 25, 2023

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NOTICE of Appearance by JOHN DAVID MARSEY on behalf of All Defendants (MARSEY, JOHN)

May 26, 2023

May 26, 2023

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NOTICE of Appearance by NICOLE SIEB SMITH on behalf of All Defendants (SMITH, NICOLE)

May 26, 2023

May 26, 2023

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NOTICE of Appearance by JEFFREY JAMES GROSHOLZ on behalf of All Defendants (GROSHOLZ, JEFFREY)

May 26, 2023

May 26, 2023

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ACTION REQUIRED BY DISTRICT JUDGE: Chambers of JUDGE T KENT WETHERELL II notified that action is needed Re: 1 Complaint, 8, 9, 10 Notices of Appearance. (Please see proposed ISO.) (jfj)

May 30, 2023

May 30, 2023

PACER

ACTION REQUIRED BY DISTRICT JUDGE: Chambers of JUDGE T KENT WETHERELL II notified that action is needed Re: 1 Complaint, 8,9,10 Notices of Appearance. (Please see proposed ISO.) (jfj)

May 30, 2023

May 30, 2023

PACER
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INITIAL SCHEDULING ORDER: Fed.R.Civ.P. 7.1 Corporate Disclosure Statement Deadline set for 6/13/2023. Rule 26 Meeting Report due by 7/13/2023. Discovery due by 10/2/2023. Signed by JUDGE T KENT WETHERELL II on 5/30/2023. (mb)

May 30, 2023

May 30, 2023

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MOTION to Appear Pro Hac Vice by Paul J. Safier.( Filing fee $ 208 receipt number AFLNDC-7900953.) by SARAH BRANNEN, LINDSAY DURTSCHI, GEORGE M JOHNSON, DAVID LEVITHAN, KYLE LUKOFF, ANN NOVAKOWSKI, PEN AMERICAN CENTER INC, PENGUIN RANDOM HOUSE LLC, ASHLEY HOPE PEREZ. (Attachments: # (1) Exhibit A - PA certificate of good standing) (SAFIER, PAUL)

1 Exhibit A - PA certificate of good standing

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June 2, 2023

June 2, 2023

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ACTION REQUIRED BY DISTRICT JUDGE: Chambers of JUDGE T KENT WETHERELL II notified that action is needed Re: 12 MOTION to Appear Pro Hac Vice by Paul J. Safier. (Filing fee $ 208 receipt number AFLNDC-7900953.) (mb)

June 5, 2023

June 5, 2023

PACER
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MOTION to Appear Pro Hac Vice by Kristy Parker.( Filing fee $ 208 receipt number AFLNDC-7904427.) by PEN AMERICAN CENTER INC. (PARKER, KRISTY)

June 5, 2023

June 5, 2023

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ORDER granting [12] Motion to Appear Pro Hac Vice (Appointed PAUL JOSEPH SAFIER for SARAH BRANNEN, LINDSAY DURTSCHI, GEORGE M JOHNSON, DAVID LEVITHAN, KYLE LUKOFF, ANN NOVAKOWSKI, PEN AMERICAN CENTER INC, PENGUIN RANDOM HOUSE LLC, and ASHLEY HOPE PEREZ). Signed by JUDGE T KENT WETHERELL II on 6/5/2023. (mb)

June 5, 2023

June 5, 2023

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MOTION to Appear Pro Hac Vice by John Langford.( Filing fee $ 208 receipt number AFLNDC-7904475.) by PEN AMERICAN CENTER INC. (LANGFORD, JOHN)

June 5, 2023

June 5, 2023

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ACTION REQUIRED BY DISTRICT JUDGE: Chambers of JUDGE T KENT WETHERELL II notified that action is needed Re: 16 MOTION to Appear Pro Hac Vice by Lynn B.Oberlander. (Filing fee $ 208 receipt number AFLNDC-7906014.) (mb)

June 6, 2023

June 6, 2023

PACER
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MOTION to Appear Pro Hac Vice by Lynn B.Oberlander.( Filing fee $ 208 receipt number AFLNDC-7906014.) by SARAH BRANNEN, LINDSAY DURTSCHI, GEORGE M JOHNSON, DAVID LEVITHAN, KYLE LUKOFF, ANN NOVAKOWSKI, PEN AMERICAN CENTER INC, PENGUIN RANDOM HOUSE LLC, ASHLEY HOPE PEREZ. (Attachments: # (1) Exhibit A - NY certificate of good standing) (OBERLANDER, LYNN)

1 Exhibit A - NY certificate of good standing

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June 6, 2023

June 6, 2023

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ORDER re [13] Motion to Appear Pro Hac Vice (Appointed KRISTY L PARKER for PEN AMERICAN CENTER INC); re [15] Motion to Appear Pro Hac Vice (Appointed JOHN LANGFORD for PEN AMERICAN CENTER INC). That the motions are GRANTED, and attorneys Kristy Parker and John Langford are authorized to appear pro hac vice for Plaintiffs. Signed by JUDGE T KENT WETHERELL II on 6/6/2023. (mb)

June 6, 2023

June 6, 2023

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ORDER re [16] Motion to Appear Pro Hac Vice (Appointed LYNN BETH OBERLANDER for SARAH BRANNEN, LINDSAY DURTSCHI, GEORGE M JOHNSON, DAVID LEVITHAN, KYLE LUKOFF, ANN NOVAKOWSKI, PEN AMERICAN CENTER INC, PENGUIN RANDOM HOUSE LLC, and ASHLEY HOPE PEREZ). Signed by JUDGE T KENT WETHERELL II on 6/7/2023. (mb)

June 7, 2023

June 7, 2023

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ACTION REQUIRED BY DISTRICT JUDGE: Chambers of JUDGE T KENT WETHERELL II notified that action is needed Re: 19 MOTION to Appear Pro Hac Vice by Kamera Boyd.( Filing fee $ 208 receipt number AFLNDC-7910256.) (mb)

June 8, 2023

June 8, 2023

PACER
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MOTION to Appear Pro Hac Vice by Kamera Boyd.( Filing fee $ 208 receipt number AFLNDC-7910256.) by SARAH BRANNEN, LINDSAY DURTSCHI, GEORGE M JOHNSON, DAVID LEVITHAN, KYLE LUKOFF, ANN NOVAKOWSKI, PEN AMERICAN CENTER INC, PENGUIN RANDOM HOUSE LLC, ASHLEY HOPE PEREZ. (Attachments: # (1) Exhibit A - NY certificate of good standing) (BOYD, KAMERA)

1 Exhibit A - NY certificate of good standing

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June 8, 2023

June 8, 2023

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ORDER. This case is before the Court based on the motion for leave to appear pro hac vice filed by attorney Kamera Boyd (Doc. [19]). The Court finds based on the motion and supporting documentation that Ms. Boyd meets the requirements of Local Rule 11.1 to appear pro hac vice. The Court also notes that the applicable fee has been paid. Accordingly, it is ORDERED that the motion is GRANTED, and attorney Kamera Boyd is authorized to appear pro hac vice for Plaintiffs. Signed by JUDGE T KENT WETHERELL II on 06/09/23. (jfj)

June 9, 2023

June 9, 2023

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ACTION REQUIRED BY DISTRICT JUDGE: Chambers of JUDGE T KENT WETHERELL II notified that action is needed Re: 21 Joint MOTION to Extend Timeto Respond to Complaint, Conduct Rule 26(F) Attorney Conference and File Joint Report of Attorney Planning Meeting (mb)

June 13, 2023

June 13, 2023

PACER
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Joint MOTION to Extend Timeto Respond to Complaint, Conduct Rule 26(F) Attorney Conference and File Joint Report of Attorney Planning Meeting by ESCAMBIA COUNTY SCHOOL BOARD. (MARSEY, JOHN)

June 13, 2023

June 13, 2023

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ORDER EXTENDING DEADLINES re [21] Parties' Joint MOTION to Extend Deadlines. Defendants shall have until August 7, 2023, to answer or otherwise respond to the complaint or, if filed, the amended complaint. The parties shall have until August 7, 2023, to hold their Rule 26(f) conference. The parties shall have 14 days from the date the Rule 26(f) conference is held to file the report of the conference and proposed case management schedule. All other deadlines in the Initial Scheduling Order are tolled pending consideration of the Rule 26(f) conference report. (Answer due by 8/7/2023). (Rule 26(f) conference to be held by 8/7/2023). (Rule 26 Meeting Report due by 8/21/2023). Signed by JUDGE T KENT WETHERELL II on 6/14/2023. (mb)

June 14, 2023

June 14, 2023

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ACTION REQUIRED BY DISTRICT JUDGE: Chambers of JUDGE T KENT WETHERELL II notified that action is needed Re: 23 Consent MOTION to Extend Time (mb)

July 6, 2023

July 6, 2023

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Consent MOTION to Extend Time by SARAH BRANNEN, LINDSAY DURTSCHI, GEORGE M JOHNSON, DAVID LEVITHAN, KYLE LUKOFF, ANN NOVAKOWSKI, PEN AMERICAN CENTER INC, PENGUIN RANDOM HOUSE LLC, ASHLEY HOPE PEREZ. (AGARWAL, SHALINI)

July 6, 2023

July 6, 2023

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ORDER EXTENDING DEADLINES re [23] Plaintiff's Consented-to MOTION to Extend Deadlines. Defendants shall have until 8/21/2023, to answer or otherwise respond to the complaint or, if filed, the amended complaint. If Defendants respond to the operative complaint with a motion to dismiss, Plaintiffs shall have 28 days from the date the motion is filed to file a response. The parties shall have until 8/21/2023, to hold their Rule 26(f) conference. The parties shall have 14 days from the date the Rule 26(f) conference is held to file the report of the conference and proposed case management schedule. All other deadlines in the Initial Scheduling Order are tolled pending consideration of the parties' Rule 26(f) conference report. (Rule 26(f) Conference Report due 9/4/2023)). Signed by JUDGE T KENT WETHERELL II on 7/7/2023. (mb)

July 7, 2023

July 7, 2023

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Consent MOTION for Leave to File Amended Complaint by SARAH BRANNEN, LINDSAY DURTSCHI, GEORGE M JOHNSON, DAVID LEVITHAN, KYLE LUKOFF, ANN NOVAKOWSKI, PEN AMERICAN CENTER INC, PENGUIN RANDOM HOUSE LLC, ASHLEY HOPE PEREZ. (Attachments: # (1) Exhibit A - Amended Complaint, Index, and Exhibits, # (2) Exhibit B - Email from D Marsey) (AGARWAL, SHALINI)

1 Exhibit A - Amended Complaint, Index, and Exhibits

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2 Exhibit B - Email from D Marsey

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July 21, 2023

July 21, 2023

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ORDER GRANTING LEAVE TO AMEND COMPLAINT re [25] Plaintiff's Consented-to Motion for Leave to File Amended Complaint. That the motion is GRANTED, and The Clerk shall file a copy of Doc. [25]-1 as a new docket entry, titled "Amended Complaint." The amended complaint is now the operative complaint. Defendants shall have until August 21, 2023, to answer or otherwise respond to the amended complaint. See Doc. [24]. (Answer due by 8/21/2023.) Signed by JUDGE T KENT WETHERELL II on 7/24/2023. (mb)

July 24, 2023

July 24, 2023

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AMENDED COMPLAINT against KYLE LUKOFF, LINDSAY DURTSCHI, ANN NOVAKOWSKI, SARAH BRANNEN, PENGUIN RANDOM HOUSE LLC, GEORGE M JOHNSON, PEN AMERICAN CENTER INC, ASHLEY HOPE PEREZ, DAVID LEVITHAN, filed by KYLE LUKOFF, LINDSAY DURTSCHI, ANN NOVAKOWSKI, SARAH BRANNEN, PENGUIN RANDOM HOUSE LLC, GEORGE M JOHNSON, PEN AMERICAN CENTER INC, ASHLEY HOPE PEREZ, DAVID LEVITHAN. (Defendants added: ERICA ROY, CHRISTOPHER SCOTT SATTERWHITE and CARIN SMITH. (mb)

July 24, 2023

July 24, 2023

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Set Deadlines re 28 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM. (Internal deadline for referral to judge if response not filed earlier: 9/18/2023). (mb)

Aug. 21, 2023

Aug. 21, 2023

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MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM by ESCAMBIA COUNTY SCHOOL BOARD. (MARSEY, JOHN)

Aug. 21, 2023

Aug. 21, 2023

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Set Deadlines re 29 MOTION to Withdraw as Attorney filed by Kamera Boyd. (Internal deadline for referral to judge if response not filed earlier: 9/5/2023). (mb)

Aug. 22, 2023

Aug. 22, 2023

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MOTION to Withdraw as Attorney filed by Kamera Boyd by SARAH BRANNEN, LINDSAY DURTSCHI, BENJAMIN GLASS, GEORGE M JOHNSON, DAVID LEVITHAN, KYLE LUKOFF, ANN NOVAKOWSKI, SEAN PARKER, PEN AMERICAN CENTER INC, PENGUIN RANDOM HOUSE LLC, ASHLEY HOPE PEREZ, ERICA ROY, CHRISTOPHER SCOTT SATTERWHITE, CARIN SMITH. (BOYD, KAMERA)

Aug. 22, 2023

Aug. 22, 2023

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NOTICE of Appearance by DANIEL WILLIAM BELL on behalf of STATE OF FLORIDA (BELL, DANIEL)

Aug. 22, 2023

Aug. 22, 2023

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MOTION for Leave to File Amicus Brief in Support of Motion to Dismiss by STATE OF FLORIDA. (Attachments: # (1) Ex. 1 (Amicus Brief)) (BELL, DANIEL)

1 Ex. 1 (Amicus Brief)

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Aug. 22, 2023

Aug. 22, 2023

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REPORT of Rule 26(f) Planning Meeting. (AGARWAL, SHALINI)

Aug. 22, 2023

Aug. 22, 2023

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ORDER re [29] Motion to Withdraw as Attorney, KAMERA BOYD. That the motion is GRANTED, and attorney Kamera Boyd shall have no further obligation to represent Plaintiffs in this case. The Clerk shall terminate Ms. Boyd as counsel of record for Plaintiffs in CM/ECF. Attorney KAMERA ELLA BOYD terminated. Signed by JUDGE T KENT WETHERELL II on 8/23/2023. (mb)

Aug. 23, 2023

Aug. 23, 2023

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ORDER ACCEPTING AMICUS BRIEF re [31] STATE OF FLORIDA's Unopposed Motion for Leave to File Amicus Brief. That the motion is GRANTED, and the State of Florida's amicus brief (Doc. [31]-1) is accepted. Signed by JUDGE T KENT WETHERELL II on 8/23/2023. (mb)

Aug. 23, 2023

Aug. 23, 2023

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ORDER TEMPORARILY STAYING DISCOVERY. The Court declines to enter a final scheduling order at this time. Discovery and all other deadlines in the initial scheduling order are temporarily STAYED pending further order. Plaintiffs shall have 14 days from the date of this Order to file a response explaining why this temporary stay should not remain in effect until the Court rules on Defendants motion to dismiss. The response shall not exceed 8,000 words. Defendant shall have 7 days after Plaintiffs' file their response to file a reply. The reply shall not exceed 3,200 words. (Deadline for clerk to check status of stay by 9/6/2023. Replies due by 9/13/2023.) Signed by JUDGE T KENT WETHERELL II on 8/23/2023. (mb)

Aug. 23, 2023

Aug. 23, 2023

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ACTION REQUIRED BY DISTRICT JUDGE: Chambers of JUDGE T KENT WETHERELL II notified that action is needed Re: 32 Report of Rule 26(f) Planning Meeting (mb)

Aug. 24, 2023

Aug. 24, 2023

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Consent MOTION for Leave to File Excess Pages by SARAH BRANNEN, LINDSAY DURTSCHI, BENJAMIN GLASS, GEORGE M JOHNSON, DAVID LEVITHAN, KYLE LUKOFF, ANN NOVAKOWSKI, SEAN PARKER, PEN AMERICAN CENTER INC, PENGUIN RANDOM HOUSE LLC, ASHLEY HOPE PEREZ, ERICA ROY, CHRISTOPHER SCOTT SATTERWHITE, CARIN SMITH. (AGARWAL, SHALINI)

Aug. 31, 2023

Aug. 31, 2023

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ORDER INCREASING WORD LIMIT re [36] Plaintiffs' consent motion for leave to file response in excess of word limit. That the motion is GRANTED, and Plaintiffs may file a response in opposition to Defendant's motion to dismiss containing up to 10,000 words. Signed by JUDGE T KENT WETHERELL II on 9/1/2023. (mb)

Sept. 1, 2023

Sept. 1, 2023

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RESPONSE by SARAH BRANNEN, LINDSAY DURTSCHI, BENJAMIN GLASS, GEORGE M JOHNSON, DAVID LEVITHAN, KYLE LUKOFF, ANN NOVAKOWSKI, SEAN PARKER, PEN AMERICAN CENTER INC, PENGUIN RANDOM HOUSE LLC, ASHLEY HOPE PEREZ, ERICA ROY, CHRISTOPHER SCOTT SATTERWHITE, CARIN SMITH re [35] Order Staying Case,,,, Set Deadlines/Hearings,,, . (AGARWAL, SHALINI)

Sept. 6, 2023

Sept. 6, 2023

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ACTION REQUIRED BY DISTRICT JUDGE: Chambers of JUDGE T KENT WETHERELL II notified that action is needed Re: 38 RESPONSE by SARAH BRANNEN, LINDSAY DURTSCHI, BENJAMIN GLASS, GEORGE M JOHNSON, DAVID LEVITHAN, KYLE LUKOFF, ANN NOVAKOWSKI, SEAN PARKER, PEN AMERICAN CENTER INC, PENGUIN RANDOM HOUSE LLC, ASHLEY HOPE PEREZ, ERICA ROY, CHRISTOPHER SCOTT SATTERWHITE, CARIN SMITH re 35 Order Staying Case. (mb)

Sept. 7, 2023

Sept. 7, 2023

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ORDER. Upon due consideration of Plaintiff's response to order temporarily staying discovery (Doc. [38]), it is ORDERED that the stay of discovery shall remain in effect pending further order. Signed by JUDGE T KENT WETHERELL II on 09/07/23. (jfj)

Sept. 7, 2023

Sept. 7, 2023

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RESPONSE in Opposition re [28] MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by SARAH BRANNEN, LINDSAY DURTSCHI, BENJAMIN GLASS, GEORGE M JOHNSON, DAVID LEVITHAN, KYLE LUKOFF, ANN NOVAKOWSKI, SEAN PARKER, PEN AMERICAN CENTER INC, PENGUIN RANDOM HOUSE LLC, ASHLEY HOPE PEREZ, ERICA ROY, CHRISTOPHER SCOTT SATTERWHITE, CARIN SMITH. (Attachments: # (1) Exhibit 1) (AGARWAL, SHALINI)

1 Exhibit 1

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Sept. 18, 2023

Sept. 18, 2023

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ACTION REQUIRED BY DISTRICT JUDGE: Chambers of JUDGE T KENT WETHERELL II notified that action is needed Re: 40 RESPONSE in Opposition re 28 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM. (mb)

Sept. 19, 2023

Sept. 19, 2023

PACER
41

ORDER LIFTING STAY OF DISCOVERY. The previously imposed stay of discovery is LIFTED. The parties shall have 14 days from the date of this Order to file an amended Rule 26(f) report and proposed case management schedule. Signed by JUDGE T KENT WETHERELL II on 09/25/23. (Amended Rule 26 Meeting Report due by 10/10/2023.) (jfj)

Sept. 25, 2023

Sept. 25, 2023

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42

MOTION for Leave to File Amicus Brief (Unopposed) by G.S. Hans, Heidi Kitrosser, Clay Calvert, Kyle Compton, Caroline Mala Corbin, Eric B. Easton, Victoria Smith Ekstrand, Michael M. Epstein, Lyrissa Lidsky, Sarah Ludington, Gregory P. Magarian, Justin Marceau, C. Amanda Martin, Len Niehoff, Kristin A. Patrow, Richard J. Peltz-Steele, Tamara Piety, Jennifer Safstrom, Katie M. Schwartzmann, Susan E. Seager, Lena Shapiro, Erik Ugland, Jonathan Weinberg. (Attachments: # (1) Exhibit A, # (2) Exhibit B) (FUGATE, RACHEL)

1 Exhibit A

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2 Exhibit B

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Sept. 25, 2023

Sept. 25, 2023

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43

MOTION for Leave to File re [40] Response in Opposition to Motion, (unopposed) by Florida State Conference NAACP, Equality Florida Action, Inc.. (Attachments: # (1) Exhibit BRIEF OF AMICI CURIAE FLORIDA STATE CONFERENCE OF THE NAACP AND EQUALITY FLORIDA ACTION, INC. IN SUPPORT OF PLAINTIFFS, # (2) Exhibit DECLARATION and COMPILED STATEMENTS) (BUSCHEL, ROBERT) Modified on 9/26/2023. ** 43-2 Declaration and Statements are STRICKEN per [45] Order** (jfj).

1 Exhibit BRIEF OF AMICI CURIAE FLORIDA STATE CONFERENCE OF THE NAACP AND EQUALITY

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2 Exhibit DECLARATION and COMPILED STATEMENTS

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Sept. 25, 2023

Sept. 25, 2023

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ACTION REQUIRED BY DISTRICT JUDGE: Chambers of JUDGE T KENT WETHERELL II notified that action is needed Re: 42 MOTION for Leave to File Amicus Brief (Unopposed) (jfj)

Sept. 26, 2023

Sept. 26, 2023

PACER

ACTION REQUIRED BY DISTRICT JUDGE: Chambers of JUDGE T KENT WETHERELL II notified that action is needed Re: 43 UNOPPOSED MOTION FOR LEAVE TO FILE AMICUS BRIEF. (jfj)

Sept. 26, 2023

Sept. 26, 2023

PACER
44

NOTICE of Appearance by BRIDGET K O'HICKEY on behalf of STATE OF FLORIDA (O'HICKEY, BRIDGET)

Sept. 26, 2023

Sept. 26, 2023

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45

ORDER ACCEPTING AMICUS BRIEFS. Upon due consideration of the unopposed motions for leave to file amicus brief filed by a group of law professors (Doc. [42]) and the Florida State Conference of the NAACP and Equality Florida Action, Inc. (Doc. [43]), it is ORDERED that: The law professors' motion is GRANTED, and the amicus brief attached to the motion (Doc. [42]-2) is accepted. The NAACP/Equality Florida's motion is GRANTED in part insofar as the amicus brief attached to the motion (Doc. [43]-1) is accepted, but the declaration and statements attached to the motion (Doc. [43]-2) is STRICKEN (and the portions of the amicus brief discussing the statements will not be considered) because that type of extra-record evidence is not something the Court can consider when ruling on the legal sufficiency of the complaint. Signed by JUDGE T KENT WETHERELL II on 09/26/23. (jfj)

Sept. 26, 2023

Sept. 26, 2023

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46

MOTION to Appear Pro Hac Vice by Shawn F. Summers.( Filing fee $ 208 receipt number AFLNDC-8218679.) by SARAH BRANNEN, LINDSAY DURTSCHI, BENJAMIN GLASS, GEORGE M JOHNSON, DAVID LEVITHAN, KYLE LUKOFF, ANN NOVAKOWSKI, PEN AMERICAN CENTER INC, PENGUIN RANDOM HOUSE LLC, ASHLEY HOPE PEREZ, ERICA ROY, CHRISTOPHER SCOTT SATTERWHITE, CARIN SMITH. (Attachments: # (1) Exhibit PA Certificate of Good Standing) (SUMMERS, SHAWN)

1 Exhibit PA Certificate of Good Standing

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Sept. 26, 2023

Sept. 26, 2023

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MOTION to Appear Pro Hac Vice by Kirsten Fehlan.( Filing fee $ 208 receipt number AFLNDC-8218691.) by SARAH BRANNEN, LINDSAY DURTSCHI, BENJAMIN GLASS, GEORGE M JOHNSON, DAVID LEVITHAN, KYLE LUKOFF, ANN NOVAKOWSKI, SEAN PARKER, PEN AMERICAN CENTER INC, PENGUIN RANDOM HOUSE LLC, ASHLEY HOPE PEREZ, ERICA ROY, CHRISTOPHER SCOTT SATTERWHITE, CARIN SMITH. (FEHLAN, KIRSTEN)

Sept. 26, 2023

Sept. 26, 2023

RECAP

ACTION REQUIRED BY DISTRICT JUDGE: Chambers of JUDGE T KENT WETHERELL II notified that action is needed Re: 46 MOTION to Appear Pro Hac Vice by Shawn F. Summers. 47 MOTION to Appear Pro Hac Vice by Kirsten Fehlan. (mb)

Sept. 27, 2023

Sept. 27, 2023

PACER
48

ORDER. That the motion is GRANTED, and attorneys Shawn F. Summers and Kirsten Fehlan are authorized to appear pro hac vice for Plaintiffs. [46] Motion to Appear Pro Hac Vice (Appointed SHAWN F SUMMERS for SARAH BRANNEN, LINDSAY DURTSCHI, BENJAMIN GLASS, GEORGE M JOHNSON, DAVID LEVITHAN, ANN NOVAKOWSKI, PEN AMERICAN CENTER INC, PENGUIN RANDOM HOUSE LLC, ASHLEY HOPE PEREZ, ERICA ROY, CHRISTOPHER SCOTT SATTERWHITE, and for CARIN SMITH); [47] Motion to Appear Pro Hac Vice (Appointed KRISTEN FEHLAN for SARAH BRANNEN, LINDSAY DURTSCHI, BENJAMIN GLASS, GEORGE M JOHNSON, DAVID LEVITHAN, ANN NOVAKOWSKI, PEN AMERICAN CENTER INC, PENGUIN RANDOM HOUSE LLC, ASHLEY HOPE PEREZ, ERICA ROY, CHRISTOPHER SCOTT SATTERWHITE, and for CARIN SMITH). Signed by JUDGE T KENT WETHERELL II on 9/27/2023. (mb)

Sept. 27, 2023

Sept. 27, 2023

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49

MOTION to Appear Pro Hac Vice by Nicholas Baer.( Filing fee $ 208 receipt number AFLNDC-8233942.) by Equality Florida Action, Inc., Florida State Conference NAACP. (BAER, NICHOLAS)

Sept. 29, 2023

Sept. 29, 2023

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50

MOTION to Appear Pro Hac Vice by C. William Phillips.( Filing fee $ 208 receipt number AFLNDC-8233970.) by Equality Florida Action, Inc., Florida State Conference NAACP. (PHILLIPS, CLARENCE)

Sept. 29, 2023

Sept. 29, 2023

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51

MOTION to Appear Pro Hac Vice by Jayni Hein.( Filing fee $ 208 receipt number AFLNDC-8234083.) by Equality Florida Action, Inc., Florida State Conference NAACP. (HEIN, JAYNI)

Sept. 29, 2023

Sept. 29, 2023

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52

ORDER re [51] MOTION to Appear Pro Hac Vice by Jayni Hein; [50] MOTION to Appear Pro Hac Vice by C. William Phillips; [49] MOTION to Appear Pro Hac Vice by Nicholas Baer. That the motion is GRANTED, and attorneys Nicholas E. Baer, C. William Phillips, and Jayni F. Hein are authorized to appear pro hac vice for amici Florida State Conference of the NAACP and Equality Florida Action, Inc. Signed by JUDGE T KENT WETHERELL II on 10/2/2023. (mb)

Oct. 2, 2023

Oct. 2, 2023

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ACTION REQUIRED BY DISTRICT JUDGE: Chambers of JUDGE T KENT WETHERELL II notified that action is needed Re: 53 Report of Rule 26(f) Planning Meeting (mb)

Oct. 4, 2023

Oct. 4, 2023

PACER
53

REPORT of Rule 26(f) Planning Meeting. (AGARWAL, SHALINI)

Oct. 4, 2023

Oct. 4, 2023

Clearinghouse
54

FINAL SCHEDULING ORDER re 53 Joint REPORT. (Fact Discovery due by 5/31/2024. Expert Discovery due by 7/15/2024. The deadline for filing potentially Dispositive Motions, as well as daubert motions, to be filed by 6/21/2024. Mediation to take place by 6/14/2024. Mediation Report due by 6/21/2024). Signed by JUDGE T KENT WETHERELL II on 10/5/2023. (mb) (Entered: 10/05/2023)

Oct. 5, 2023

Oct. 5, 2023

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ORDER. Plaintiffs' request for oral argument (see Doc. 40 at 50) is GRANTED. Within 7 days from the date of this Order, the parties shall confer and file a notice identifying several mutually agreeable dates and times during December 2023 and January 2024 for an in-person oral argument in Pensacola, Florida. Ninety minutes45 minutes per sidewill be reserved for the oral argument. (Notify Court with several mutually agreeable dates and times due by 12/12/2023.) Signed by JUDGE T KENT WETHERELL II on 12/5/2023. (mb) (Entered: 12/05/2023)

Dec. 5, 2023

Dec. 5, 2023

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NOTICE Joint Notice Regarding Availability for Oral Argument by SARAH BRANNEN, BENJAMIN GLASS, GEORGE M JOHNSON, DAVID LEVITHAN, KYLE LUKOFF, ANN NOVAKOWSKI, SEAN PARKER, PEN AMERICAN CENTER INC, PENGUIN RANDOM HOUSE LLC, ASHLEY HOPE PEREZ, ERICA ROY, CHRISTOPHER SCOTT SATTERWHITE, CARIN SMITH re 55 Order,,, Set Deadlines/Hearings,, (AGARWAL, SHALINI) (Entered: 12/12/2023)

Dec. 12, 2023

Dec. 12, 2023

PACER

Action Required by District Judge

Dec. 12, 2023

Dec. 12, 2023

PACER

ACTION REQUIRED BY DISTRICT JUDGE: Chambers of JUDGE T KENT WETHERELL II notified that action is needed Re: 56 Joint Notice Regarding Availability for Oral Argument (djb)

Dec. 12, 2023

Dec. 12, 2023

PACER
57

NOTICE of Hearing re 28 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM. (Motion Hearing set for 1/10/2024 @ 10:00 AM C.T. in U.S. Courthouse Pensacola before JUDGE T KENT WETHERELL II. (mb) (Entered: 12/13/2023)

Dec. 13, 2023

Dec. 13, 2023

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58

NOTICE of Supplemental Authority by STATE OF FLORIDA (O'HICKEY, BRIDGET) (Entered: 12/27/2023)

Dec. 27, 2023

Dec. 27, 2023

PACER
59

MOTION for leave to participate in motion-to-dismiss hearing by STATE OF FLORIDA. (O'HICKEY, BRIDGET) (Entered: 12/27/2023)

Dec. 27, 2023

Dec. 27, 2023

PACER
60

ORDER re 59 Amicus STATE OF FLORIDA's Unopposed MOTION to participate in oral argument. That the motion is GRANTED, and the State will be allowed to participate in oral argument. The time reserved for oral argument is extended to one hour per side, with 15 minutes of Defendant's time being allotted to the State. Signed by JUDGE T KENT WETHERELL II on 12/28/2023. (mb) (Entered: 12/28/2023)

Dec. 28, 2023

Dec. 28, 2023

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MOTION for Telephonic Access (Unopposed) re 57 Notice of Hearing on Motion by SARAH BRANNEN, LINDSAY DURTSCHI, BENJAMIN GLASS, GEORGE M JOHNSON, DAVID LEVITHAN, KYLE LUKOFF, ANN NOVAKOWSKI, SEAN PARKER, PEN AMERICAN CENTER INC, PENGUIN RANDOM HOUSE LLC, ASHLEY HOPE PEREZ, ERICA ROY, CHRISTOPHER SCOTT SATTERWHITE, CARIN SMITH. (SUMMERS, SHAWN) (Entered: 12/29/2023)

Dec. 29, 2023

Dec. 29, 2023

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62

ORDER re 61 Plaintiff's Unopposed Motion for Telephonic Access. That the motion is DENIED. Signed by JUDGE T KENT WETHERELL II on 1/2/2024. (mb) (Entered: 01/02/2024)

Jan. 2, 2024

Jan. 2, 2024

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NOTICE of Supplemental Authority by SARAH BRANNEN, LINDSAY DURTSCHI, BENJAMIN GLASS, GEORGE M JOHNSON, DAVID LEVITHAN, KYLE LUKOFF, ANN NOVAKOWSKI, SEAN PARKER, PEN AMERICAN CENTER INC, PENGUIN RANDOM HOUSE LLC, ASHLEY HOPE PEREZ, ERICA ROY, CHRISTOPHER SCOTT SATTERWHITE re 40 Response in Opposition to Motion, (AGARWAL, SHALINI) (Entered: 01/04/2024)

Jan. 4, 2024

Jan. 4, 2024

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Minute Entry for proceedings held before JUDGE T KENT WETHERELL II: Motion Hearing held on 1/10/2024 re 28 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM. Motion Denied as to Counts 1 and 2, Granted as to Count 3. Defense to file answer by 2/7/2024. Order to be entered (Court Reporter Julie Wycoff). (pmc) (Entered: 01/10/2024)

Jan. 10, 2024

Jan. 10, 2024

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ORDER ON MOTION TO DISMISS re 28 Defendant's MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM. Defendant's motion to dismiss is GRANTED in part, and Count III of the amended complaint is DISMISSED. The motion is otherwise DENIED. Defendant shall have until February 7, 2024 (28 days from the date of the oral argument) to answer the amended complaint. (Answer due by 2/7/2024.) Signed by JUDGE T KENT WETHERELL II on 1/12/2024. (mb) (Entered: 01/12/2024)

Jan. 12, 2024

Jan. 12, 2024

Clearinghouse
66

NOTICE OF FILING OF OFFICIAL TRANSCRIPT of ORAL ARGUMENT Proceedings held on 1/10/2024, before Judge T. Kent Wetherell, II. Court Reporter/Transcriber Julie A. Wycoff, Telephone number 850/549-5886; julieawycoff@gmail.com. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 1/23/2024. Release of Transcript Restriction set for 4/22/2024. (jaw) (Entered: 01/16/2024)

Jan. 16, 2024

Jan. 16, 2024

PACER
67

NOTICE of Appearance by SAMANTHA CRAWFORD DUKE on behalf of ESCAMBIA COUNTY SCHOOL BOARD (DUKE, SAMANTHA) (Entered: 01/24/2024)

Jan. 24, 2024

Jan. 24, 2024

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ANSWER to 27 Amended Complaint, by ESCAMBIA COUNTY SCHOOL BOARD. (SMITH, NICOLE) Modified on 2/7/2024 to correct title to match pdf document attached. (mb). (Entered: 02/07/2024)

Feb. 7, 2024

Feb. 7, 2024

PACER

Case Details

State / Territory: Florida

Case Type(s):

Speech and Religious Freedom

Education

Key Dates

Filing Date: May 17, 2023

Case Ongoing: Yes

Plaintiffs

Plaintiff Description:

A nonprofit organization of authors, authors, a publishing company, and the parents of students attending Escambia County schools.

Plaintiff Type(s):

Private Plaintiff

Non-profit NON-religious organization

Public Interest Lawyer: Yes

Filed Pro Se: No

Class Action Sought: No

Class Action Outcome: Not sought

Defendants

Escambia County, School District

Defendant Type(s):

Jurisdiction-wide

Facility Type(s):

Government-run

Case Details

Causes of Action:

42 U.S.C. § 1983

Ex parte Young (federal or state officials)

Constitutional Clause(s):

Freedom of speech/association

Equal Protection

Available Documents:

Trial Court Docket

Complaint (any)

Any published opinion

Outcome

Prevailing Party: None Yet / None

Nature of Relief:

None yet

Source of Relief:

None yet

Issues

General/Misc.:

Education

School/University Facilities

School/University policies

Discrimination Basis:

Gender identity

Race discrimination

Sexual orientation

Discrimination Area:

Disparate Treatment

Affected Race(s):

Black

Affected Sex/Gender(s):

Transgender

LGBTQ+:

LGBTQ+