Case 1:16-cv-00395-CG-M Document 39 Filed 01/06/17 Page 1 of 13

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DISTRICT OF ALABAMA

THAI MEDITATION ASSOCIATION OF

ALABAMA, INC., An Alabama Domestic
Not-For-Profit Corporation, SIVAPORN
No. 1:16-cv-00395 (CG) (M)
NIMITYONGSKUL, VARIN
NIMITYONGSKUL, SERENA RULE 26(f) REPORT
NIMITYONGSKUL, and PRASIT
NIMITYONGSKUL,

Plaintiffs,

vs.

CITY OF MOBILE, ALABAMA,

Defendant.

REPORT OF PARTIES' PLANNING MEETING

Pursuant to Federal Rule of Civil Procedure 26(f), a meeting was held on December 16,

2016 over the telephone and was attended by:

John Lawler and Blair Lazarus Storzer for Plaintiffs

Douglas L. Anderson, Michael D. Strasavich and Taylor B. Johnson for Defendant City

of Mobile, Alabama.

The parties request a conference with the Court before entry of the scheduling order.

1. Statement of Facts and Legal Issues

Plaintiff’s Submission

Plaintiff Thai Meditation Association of Alabama, Inc. (the “Center”) is a Buddhist

religious organization. It was incorporated in 2007 for the purposes of “teaching and research

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into growth and development of mind and spirit through meditation and to expand the knowledge

of Buddhism.” Meditation is the central religious practice of Buddhism. Since that time, it has

sought a location within the City of Mobile that would provide the meditative serenity necessary

for proper Buddhist practice and that would include appropriate facilities for the Center to host

Buddhist monks and other spiritual teachers. The Center needs specific facilities to house

Buddhist monks based on the monks’ religious practices.

Plaintiffs Sivaporn Nimityongskul, Prasit Nimityongskul, Varin Nimityongskul and

Serena Nimityongskul are practicing Buddhists and members of the Center. Meditation is the

Plaintiffs’ primary religious practice. The Center follows the Dhammakaya school of Buddhism,

which is headquartered in Pathum Thani, Thailand, home to the largest Buddhist temple in the

world. The Center’s religious exercise involves prayer, meditation classes, meditation retreats,

various traditional religious ceremonies such as alms offering ceremonies, lectures, teachings

from Buddhist philosophy and learning including discussions of ancient Buddhist religious texts

and the life lessons that may be gleaned from them. Meditation in particular is an essential

component of Buddhist worship and the central religious practice of Buddhism. Adherents to the

Dhammakaya school practice a specific form of meditation, with the Center being the only

location in Alabama to offer such form. Because Buddhists believe that the principles of

Buddhism apply to everyone and can be practiced by people from all faiths and religions, the

Center welcomes people of all religions and does not seek to “convert” anyone to Buddhism.

In 2007, Plaintiff Sivaporn Nimityongskul purchased a residence in Mobile as a location

for a Buddhist monk who would conduct Buddhist ceremonies and meditation classes at the

home. The Center continued to operate out of that location until it was told to stop its “religious”

activities by the City of Mobile. When the Center applied for a permit to locate its meditation

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center at the home it faced tremendous community opposition, from neighbors who

demonstrated misunderstanding and fears about Buddhism, to testimony against the application

from the local City Councilman and a recommendation of denial from the City’s Planning

Department. Subsequently, the Center withdrew its application and feared describing its

activities as “religious” in public communications. The Center then moved to an inadequate

facility within a shopping center on Airport Boulevard in downtown Mobile where noise from

the street interferes with quiet meditation and otherwise prevents the Center from fully engaging

in religious exercise. The Center does not currently have facilities to house monks, as described

above.

In or around April 2015, the Plaintiffs identified a property of approximately 6.7 acres

located in an R-1 Zoning District within the City of Mobile, which property has a street address

of 2410 Eloong Drive (the “Property”). The Property is currently improved with a single family

home and a detached garage. The Mobile City Zoning Ordinance provides that a “church or

religious facility; including parish house, community house and educational buildings” is

permitted as of right within the R-1 Zoning District with “planning approval” by the City of

Mobile Planning Commission. Prior to purchasing the Property, Plaintiff Sivaporn

Nimityongskul met with employees of the City of Mobile’s Planning Department to discuss

whether the Center’s meditation center could be constructed on the Property. City of Mobile

employees told her that the Center’s application would be treated as one for a house of worship

and subjected to planning approval. The Nimityongskuls relied on that representation, purchased

the Property, and then submitted an application for Planning Approval for the meditation center.

During the pendency of the Center’s application, employees of the City of Mobile and the

City of Mobile Planning Commission took it upon themselves to question whether the Center

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was actually a religious facility. The Center also faced tremendous community opposition. At

the first hearing on the Center’s application, an attorney representing the opposition advanced the

argument that the Center was actually a “commercial” use. At the end of that hearing, the

attorney for the Planning Commission told the Center’s attorney that the Center would have to

prove that they were really a religious organization. In response, the Center provided letters

from five Buddhist monks, including from the Dhammakaya Foundation’s headquarters attesting

to the religious nature of the Center’s beliefs and the sincerity of the Center’s affiliation. The

Center also provided a letter from an Associate Dean at the College of Arts and Sciences at the

University of South Alabama discussing the relationship between meditation and Buddhism.

The Center also provided a letter from the IRS advising them of their approved status as a

501(c)(3) charitable organization. Employees of the City of Mobile disregarded the letters from

the monks and professor, focusing only on the letter from the IRS even though it is undisputed

that the City of Mobile does not request tax documentation from other applicants seeking to

build houses of worship. The attorney for the Planning Commission reviewed the Center’s

documentation and opined that, “This shows the IRS has given [the Center] tax exempt status as

a charity or foundation -- there are tests a church has to go through with the IRS to be classified

as a church/religious organization. Just because meditation is part of a religion(my preacher

teaches contemplative prayer) does not make the building a church or the owner a religious

organization. Recommend denial.” Prior to the next Planning Commission hearing on the

Center’s application, the Staff Report incorporated this reasoning almost verbatim and, relying

solely on it, recommended denial of the Center’s application. The Staff Report stated that the

meditation center was not a religious facility and would necessitate a Use Variance rather than

planning approval. That determination was directly contrary to the Planning Staff’s

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representation to the Center at its earlier meeting. The Center’s application was not discussed at

the Planning Commission meeting, during which the Planning Commission voted to deny the

application.

Following the Planning Commission’s vote to deny the Center’s application, Plaintiff

Sivaporn Nimityongskul requested a list of reasons for the denial, as none were discussed or

provided. A response was formulated by the Deputy Director of Planning referring not to the

basis for denial as stated in the Staff Report recited above, but instead stating that the application

was denied because “the proposed use is not compatible with the surrounding area;” “access to

the site is not adequate for the proposed use;” and “the proposed use would increase traffic on a

very substandard street.” This letter did not reflect any discussion by the Planning Commission.

The Planning Commission’s attorney directed staff to “[u]se what is in the email, not the Staff

Report.” The stated reasons in the Deputy Director of Planning’s email were pretextual.

The Center appealed the denial of its application to the Mobile City Council. Prior to the

hearing on the appeal, the attorney for the City Council and an attorney for the City of Mobile

exchanged emails on how best to support the pretextual reasons for denial of the Center’s

application in the event of an inquiry by the United States Department of Justice. During the

City Council hearing on the Center’s application, the Planning Commission’s attorney testified

that, “[t]his is apples and oranges. This is not a religious facility. The application was mediation

[sic] center of Alabama or whatever. This is not the Baptist Church or the Episcopal Church.”

The City Council was not made aware of any of the letters of support that had been provided by

the Center and, once again, the focus was on the Center’s tax status. During that hearing, the

Deputy Director of Planning also misrepresented to the City Council the conversation that

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Planning Department staff had with the Center prior to the Nimityongskuls purchasing the

Property. The City Council denied the Center’s appeal by a vote 6-0.

The seven-count Complaint challenges the denial of the Center’s land use applications

and the City of Mobile’s ordinances as follows:

1. Counts I through III allege violations of the Religious Land Use and Institutionalized

Persons Act of 2000 (“RLUIPA”), 42 U.S.C. § 2000cc et seq., by substantially burdening

the Plaintiff’s religious exercise without using the least restrictive means of achieving a

compelling governmental interest, by discriminating against Plaintiffs on the basis of

religion and religious denomination, and by treating the Plaintiffs on less than equal

terms with nonreligious assembly and institutional land uses.

2. Counts IV and V assert claims under 42 U.S.C. § 1983 and allege that the Defendant

deprived Plaintiffs of rights guaranteed to them by the First and Fourteenth Amendments

to the United States Constitution, by discriminating against them on the basis of their

religion and by burdening their ability to freely exercise their religion.

3. Count VI asserts a claim under Article I, section 3.01 of the Alabama Constitution and

alleges that the Defendant deprived Plaintiffs of rights guaranteed to them by the

Alabama Religious Freedom Restoration Act by burdening Plaintiffs’ religious exercise

without using the least restrictive means of achieving a compelling governmental interest.

This state provision applies to all burdens on the freedom of religion.

4. Count VII asserts a claim for negligent misrepresentation under Alabama law based on

the Defendant’s representation that Plaintiffs’ proposed use would be treated as a

religious facility, Plaintiff’s reasonable reliance on that representation and Plaintiffs’

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resulting damages when Defendant failed to treat Plaintiffs’ proposed use as a religious

facility.

Defendant City of Mobile’s Submission

The City of Mobile generally denies the allegations of Plaintiffs' Complaint that the City

acted in a discriminatory manner with respect to Plaintiffs or the subject application for planning

approval, as determined under either federal or state law. The City also denies that its conduct

could be considered actionable fraud under Alabama law. The City further denies that Plaintiffs

are entitled to the relief and/or damages sought.

2. This non-jury action should be ready for trial by May 1, 2018. At this time, Plaintiffs

expect the trial to take approximately 10 days. The Defendant disagrees that this non-

jury case should take ten days to try, and estimates the length of trial at a maximum of

two to three days.

3. The parties request a pretrial conference in April 2018.

Discovery Plan.

4. The parties jointly propose to the Court the following discovery plan:

Plaintiffs anticipate discovery will be needed on the following subjects:

A. Plaintiffs’ proposed religious land use;

B. Plaintiffs’ land use applications to the City of Mobile;

C. Communications among or between the Defendant and staff, Planning

Commission members, mayor, City Council members, other elected and/or

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appointed officials, and third parties concerning Plaintiffs’ applications and use of

property in the City of Mobile;

D. Alleged zoning violations of the Plaintiffs in relation to property owned by them

in the City of Mobile;

E. Any litigation in which the parties have been involved;

F. Communications among or between the Defendant and staff, Planning

Commission members, mayor, City Council members, other elected and/or

appointed officials, and third parties concerning a Department of Justice

investigation into the facts described in the Complaint in this matter;

G. The Plaintiffs’ relevant properties in the Township;

H. Defendant City of Mobile’s Code, including its Zoning Ordinance;

I. Any asserted governmental interest supporting the challenged decisions and/or

laws;

J. Any alternative means considered or available to achieve such asserted

governmental interests;

K. Defendant’s land use policies and procedures;

L. The existence and regulation of religious land uses within the City of Mobile’s

jurisdiction;

M. The existence and regulation of assembly and institutional land uses within the

Township;

N. The existence and regulation of land uses in the zoning district and the vicinity in

which Plaintiff’s proposed religious land use would occur;

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O. The adoption and application of the Zoning Ordinance provisions applied to

Plaintiffs;

P. Issues related to hostility toward Buddhism; and,

Q. The disputed factual allegations set forth in the Complaint.

Defendants anticipate discovery will be needed on the following subjects:

A. The allegations made by Plaintiffs in the Complaint as well as the matters

contained in Plaintiff's Submission above under Paragraph 1.

B. The damages claimed by Plaintiffs.

C. The activities, structure, ownership, finances, and other related issues concerning

the Thai Meditation Center of Alabama, Inc.

D. Plaintiffs' plans for and use of the location made the subject of the application for

planning approval, including any modifications, additions, or other changes to the

site.

Timing of Discovery

5. All discovery commenced in time to be completed by January 15, 2018.

6. Initial Disclosures. The parties will exchange by January 19, 2017 the information
required by Federal Rule of Civil Procedure 26(a)(1).

7. The parties request until March 15, 2017 to join additional parties and amend the
pleadings.

8. Plaintiffs propose that the initial expert reports under Rule 26(a)(2) for both sides be due
on or before August 15, 2017. During the Rule 26(f) conference, Plaintiffs proposed that
the initial expert reports be due simultaneously due to the nature of this case. RLUIPA,
42 U.S.C. 2000cc-2(b), is unique in that the Plaintiffs and Defendant bear separate
burdens. Staggered disclosure of expert reports, while appropriate in some cases, is not
appropriate here and would result in prejudice. Accordingly, Plaintiffs contemplate the

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ability of each side to prepare and to simultaneously disclosure rebuttal expert reports on
or before October 15, 2017.

Defendant proposes that Plaintiffs disclose their expert reports under Rule 26(a)(2) on or
before August 15, 2017, and that Defendant discloses its expert reports not later than
September 15, 2017. This sequence of expert disclosure is customary in this Court, even
in cases brought pursuant to federal statutes alleging constitutional violations or
discrimination.

9. Pretrial Disclosures. Final lists of witnesses and exhibits under Rule 26(a)(3) due by
April 1, 2018.

Discovery Limits1

10. Maximum of 50 interrogatories by each party to any other party. Responses due 30 days

after service.

11. Plaintiff requests a maximum of 20 depositions by either party. Each deposition limited

to maximum of 7 hours unless extended by agreement of parties. The Defendant feels

that a limitation of 10 depositions by each party would be sufficient discovery in this

case.

12. The parties were not able to come to an agreement as to a limitation on requests to admit.

Responses due 30 days after service.

Plaintiffs anticipate the need to authenticate numerous documents, many of which form

the basis for allegations in the Complaint which have been admitted to by the Defendant.

Plaintiffs intend to use requests for admissions to shorten oral depositions and to narrow

the issues before the Court relating to the authentication of documents and, as such,

cannot agree to a limitation on the number of requests allowed by Rule 26.

1
These proposed discovery limits contemplate that all persons and entities represented by the
same attorney are treated as a single "party" for purposes of these discovery limits.

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Defendant's position on requests for admission is that this Court should set a customary

limit of 20 to 30 requests for admission in its Scheduling Order. Once those have been

exhausted, Plaintiffs can then confer with counsel for Defendant and/or apply to the

Court for additional requests for admission should additional requests for admission be

needed.

13. The parties agree to a maximum number of 30 requests for production of documents by

each party to any other party. Responses due 30 days after service.

14. All potentially dispositive motions filed by February 19, 2018.

15. During the settlement conference, the parties discussed a request a referral for alternative

dispute resolution such as mediation, but could not come to an agreement on referral to

alternative dispute resolution at this time.

Plaintiffs’ Position:

Plaintiffs are amenable to early mediation. Plaintiffs’ counsel stated this during the Rule

26 Conference but counsel for Defendant stated that, although willing to attend

mediation, it did not feel that such efforts would be fruitful due to the City’s inability to

bind either the City Council or the Planning Commission. Counsel for Plaintiffs

expressed concern that the City would be unable to settle the case under any

circumstances. Defendant denied that it was and stated that it could not name anyone

with settlement authority to attend mediation due to the Alabama Open Meetings

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Law. Counsel for the City denied that the case could not be settled under any

circumstances. Counsel for Plaintiffs subsequently asserted that this position appeared to

be inconsistent with the Stipulation entered by this Court on September 2, 2016 (Dkt.

#22) and called Counsel for Defendant on December 19, 2016 to discuss further. During

that call, counsel for Defendant appeared not to be familiar with the relief that Plaintiffs

are seeking in the Complaint. Additionally, during another follow-up call on January 4,

2017, counsel for Plaintiffs asked counsel for the City to clarify that it would not object

to providing documents and other discovery relating to the City Council or Planning

Commission on the basis that it did not control these parties and the City confirmed that it

would not. Counsel for Defendant stated that any party could request a settlement

conference or referral for ADR at any time and that, if Plaintiffs requested the same, the

City would “figure something out.”

Defendant’s Position:

Defendant’s position is that settlement is unlikely at this time, and therefore Defendant

does not agree on a referral to alternative dispute resolution presently. The parties are

aware that any party may request from the Court such a referral or a settlement

conference at any time, and that the parties may if they agree voluntarily undertake to

mediate this matter independent of court action. Defendant will continue to assess

settlement of this matter as discovery progresses. Finally, Defendant does not agree that

Plaintiffs’ position above accurately recounts the discussion of the parties.

16. The discovery in this action will include Electronically Stored Information (ESI). The

parties have agreed upon a stipulated Order Governing Confidential Materials and

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Discovery of Electronically Stored Information, and request that the Court enter the

Proposed Order attached hereto as Exhibit A.

Date: January 6, 2017

/s/ Blair Lazarus Storzer (by consent) /s/ Michael D. Strasavich

ROMAN P. STORZER DOUGLAS L. ANDERSON (ANDED9624)
(Admitted pro hac vice) MICHAEL D. STRASAVICH (STRAM9557)
BLAIR LAZARUS STORZER TAYLOR BARR JOHNSON (BARRT8851)
(Admitted pro hac vice) BURR & FORMAN LLP
STORZER & ASSOCIATES, P.C. Post Office Box 2287
1025 Connecticut Ave., N.W. Suite 1000 Mobile, Alabama 36652
Washington, D.C. 20036 Telephone: (251) 344-5151
Telephone: (202) 857-9766 Facsimile: (251) 344-9696
Facsimile: (202) 315-3996 Email: danderson@burr.com
Email: rstorzer@storzerlaw.com mstrasavich@burr.com
bstorzer@storzerlaw.com tjohnson@burr.com
Counsel for Plaintiffs Counsel for Defendant

CERTIFICATE OF SERVICE

I hereby certify that I have served a copy of the foregoing document by Notice of
Electronic Filing, or, if the party served does not participate in Notice of Electronic Filing, by
U.S. First Class Mail, hand delivery, fax or email on this the 6th day of January, 2017:

John L. Lawler, Esq.

Post Office Box 47
Mobile, AL 36601

Roman P. Storzer, Esq.

Blair Lazarus Storzer, Esq.
Storzer & Associates, P.C.
1025 Connecticut Ave., N.W. Suite 1000
Washington, DC 20036

s/ Michael D. Strasavich
OF COUNSEL

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