OCEAN CITY — The Town of Ocean City this week filed a motion to dismiss the amended federal lawsuit filed against it and other named defendants, pointing out several apparent flaws and blasting holes in the buskers’ pro se case.
In November, eight Ocean City Boardwalk street performers, led by Tony Christ, filed suit in U.S. District Court, seeking $1 million in punitive and compensatory damages and injunctive relief from the town’s new busker ordinance implemented last summer. The suit names the town of Ocean City, along with Mayor and Acting City Manager Rick Meehan as defendants for their alleged roles in the adopting of the ordinance. The suit also seeks another $1 million in damages from unnamed Boardwalk shop owners identified only as “John Doe’s,” for their alleged role in harassing and interfering with the buskers and attempting to drive them from the Boardwalk.
The town last week filed a motion to dismiss the case on several fronts, including some procedural issues with the service of documents. Perhaps more importantly, the town asserts the amended complaint fails to state a case upon which relief can be granted.
“The amended complaint does state that the reason for the plaintiffs’ bringing the instant lawsuit was their desire to protect the rights guaranteed them by the First Amendment to the U.S. Constitution,” the motion to dismiss reads. “However, the entire complaint is void of any substantive discussion of the First Amendment rights violated by defendants and factual allegations to support such an allegation.”
Nearly the entire basis for the suit is the perceived First Amendment rights violations, but the town’s formal answer asserts the complaint does not spell out any specifically.
“The plaintiffs’ amended complaint contains three listed counts including two federal criminal charges and a discussion of wild allegations pertaining to actions taken by the defendants following the close of a federal lawsuit, which the plaintiffs have subsequently and unsuccessfully attempted to re-open,” the motion reads. “Plaintiffs also inject the First Amendment into their amended complaint at various places, but fail to actually allege defendants’ violation of guaranteed rights. Each and every claim fails to allege a set of facts that can withstand challenge.”
The amended complaint attempts to charge the defendants with federal crimes, an anomaly pointed out to by the defendants.
“The plaintiffs lack the authority to charge defendants with federal crimes,” the motion reads. “Further, the lawsuit initiated by the plaintiffs is civil in nature, thus, the court is not at liberty to hear allegations of criminal actions. Given that the plaintiffs do not have the authority to hear such a claim in the proceeding at hand, defendants request this court dismiss counts I and II for failure to state a claim upon which relief can be granted.”
By and large, the town’s motion to dismiss attempts to blow holes in the plaintiffs’ case from start to finish.
“In short, the plaintiffs’ entire amended complaint does not contain a single plausible, or cognizable, request for relief that may be granted by this court,” the motion reads. “Plaintiffs attempt to charge defendants with two federal crimes and also allege some sort of violation in its discussion of Count III, though the defendants are unsure of the exact allegation.”
Christ and the plaintiffs wasted little time in answering the town’s motion to dismiss with a filing this week.
“Your plaintiffs were rebuffed every time without exception,” the answer reads. “… the very existence of Boardwalk performing in Ocean City is at risk of elimination if we are unable to gain federal relief from excessive and unnecessary regulation.”
The plaintiffs’ formal answer asserts the town will be successful in eliminating buskers from the Boardwalk if the case is not successful, although town officials and their Boardwalk Task Force have said repeatedly regulation in an equitable way is the intent.
“Your plaintiffs believe that in the base case, discovery will show that defendants acted with extreme indifference to the hardships imposed on performers by the new ordinance they voted for,” the answer reads. “However, your plaintiffs have shown evidence that defendants acted at every single state to escape the District Court’s prior order, while spending many thousands of dollars on promoting the appearance of fairness. This unspoken agenda of apparent performer reduction on the Boardwalk has succeeded in reducing 75 percent of the Boardwalk performers by summer end 2015.”
Some believe many of the performers have crossed the line between First Amendment rights-protected artists to untaxed wage earners on the Boardwalk and a section of the buskers’ own answer filed this week seems to confirm that to some degree.
“Monetary damage to performer incomes is believed to be an 80 percent diminishment during the summer. Your plaintiffs believe this is reflected in visitor welfare owing to lost performances,” the response reads.
