Opinion
No. 20-06088-CV-W-BP
2021-10-26
Richard HERSHEY, Plaintiff, v. Dr. John JASINSKI, et al., Defendants.
Matthew K. Wren, Pro Hac Vice, Wren Law Firm, Little Rock, AR, John Wray Kurtz, Hubbard and Kurtz, Kansas City, MO, for Plaintiff. Michael Thomas Raupp, Allen F. James, Hayley Elizabeth Hanson, Husch Blackwell LLP, Kansas City, MO, for Defendants Dr. John Jasinski, Dr. Pat Harr, Dr. Marilou Joyner, Jason Klindt, John Moore, Deborah Roach, Richard Smith, George Speckman, Roxanna Swaney, Melissa Evans, Lt. Anthony Williams. Michael Thomas Raupp, Hayley Elizabeth Hanson, Husch Blackwell LLP, Kansas City, MO, for Defendant Dr. Jay Johnson.
Matthew K. Wren, Pro Hac Vice, Wren Law Firm, Little Rock, AR, John Wray Kurtz, Hubbard and Kurtz, Kansas City, MO, for Plaintiff. Michael Thomas Raupp, Allen F. James, Hayley Elizabeth Hanson, Husch Blackwell LLP, Kansas City, MO, for Defendants Dr. John Jasinski, Dr. Pat Harr, Dr. Marilou Joyner, Jason Klindt, John Moore, Deborah Roach, Richard Smith, George Speckman, Roxanna Swaney, Melissa Evans, Lt. Anthony Williams. Michael Thomas Raupp, Hayley Elizabeth Hanson, Husch Blackwell LLP, Kansas City, MO, for Defendant Dr. Jay Johnson. ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT BETH PHILLIPS, CHIEF JUDGE
Pending is Defendants' Motion for Summary Judgment. (Doc. 49.) For the following reasons, the motion is GRANTED IN PART and DENIED IN PART.
I. BACKGROUND
The facts in this case are largely undisputed; the Court will cite to the Record only where facts are in dispute, and will state all facts in the light most favorable to Plaintiff. Plaintiff Richard Hershey routinely visits college campuses to distribute literature advocating for a vegan lifestyle, and receives compensation from various organizations for these activities. On September 15, 2015, Plaintiff appeared on the Maryville Campus (the "Campus") of Northwest Missouri State University (the "University") to distribute leaflets on veganism. Plaintiff did not provide any notice to University personnel of his plans to be on campus that day, and did not review the University's policies on distributing literature.
After Plaintiff began distributing literature, the University police department received a report from a student about "a suspicious male wearing a white cap and a blue button-up shirt and attempting to pass something out to other students." (Doc. 50-2, pp. 16-17 (Williams Dep., pp. 14-15).) The police department interpreted the report as a "safety call," and dispatched Defendant Anthony Williams, a police officer (and now Lieutenant) for the department, to investigate. (Id. at p. 12 (Williams Dep., p. 10).)
Williams approached Plaintiff and asked whether he "ha[d] permission from the university [to engage in leafletting] based on the policy of notifying Student Affairs." (Id. at p. 11 (Williams Dep., p. 9).) Plaintiff responded that he did not need permission. (Id.) Williams then offered to escort Plaintiff to a University building "where you can go inside and ask for permission," but warned Plaintiff that "if you don't have permission you can't be on campus handing out pamphlets." (Doc. 53-4 (video footage of the encounter between Plaintiff and Williams).) In fact, throughout the encounter, Williams repeatedly stated that "you have to have permission" before distributing literature on campus. (Id.)
Williams then escorted Plaintiff to the University's Office of Student Affairs, but no administrator was available to meet with Plaintiff. He then attempted to escort Plaintiff off campus, informing him that he could remain on campus without distributing leaflets or distribute leaflets off campus, but could not do both. (Id.) Plaintiff requested that Williams issue him a trespass warning so he could have some documentation that he was ejected from campus. (Id.)
Williams then issued Plaintiff a Trespass Warning (the "Warning"). (Doc. 50-3.) The Warning informed Plaintiff that "from this day forth you are no longer allowed to be in or upon the property of Northwest Missouri State University . . . . This notice will remain in effect until the Chief of University Police or his/her designee notifies you of a revocation in writing." (Doc. 50-3, p. 2.) The Warning further specified that "[v]iolation of this notice will subject you to arrest and prosecution for violation of the Missouri Revised Statute # 569.140-Trespassing in the First Degree." (Id. at p. 3.) Finally, the Warning advised Plaintiff that he could appeal the decision in writing within 10 days of its issuance. (Id.)
Williams then escorted Plaintiff off the Campus. Plaintiff has never returned to the Campus, nor did he ever appeal the Warning. Given the nature of his work, Plaintiff estimates that, but for the Warning, he would have visited the Campus "once per semester," and that he generally wishes he could return to the Campus. (Doc. 50-1, p. 33 (Plaintiff Dep., p. 31).)
Williams never identified a specific policy or rule to justify his claim that Plaintiff would need to get permission before distributing leaflets on the Campus. The only policy that either party has introduced that was in effect at the time is a statement in the 2015-2016 Student Handbook promulgated by the University, which provided that:
Distribution of non-University publications will be unrestricted on the Northwest campus if: The publication is intended primarily for dissemination of news, opinion and information, and not for promoting sale of goods, product, or services[;] [t]he Vice President of Student Affairs or that person's designee is notified prior to the distribution of the materials[;] [the publication] carry the name and address of the publisher and the names of the editors and officers of the publication[; and] [t]he publication [does] not contain anything that is defamatory, obscene, likely to inflict injury or tend to incite immediate violence (fighting words) or directed to inciting or producing imminent lawless action.(Doc. 28, p. 28 (the "Student Handbook Policy").) Plaintiff has also identified two other policies—a "Visitor Demonstration Policy" and a "Distribution of Non-University Publications Policy," (Doc. 28, pp. 27, 29)—but it is undisputed that the versions of both of those policies that Plaintiff has provided went into effect in 2016, after the Warning was issued. However, it appears that the "Distribution of Non-University Publications Policy" is virtually identical to, and has the same effect as, as the Student Handbook Policy—and thus, that the University continues to maintain the Student Handbook Policy, albeit under a different name. (Compare Doc. 28, p. 29 with Doc. 28, p. 28.) The Visitor Demonstration Policy, by contrast, applies to non-students "who wish to conduct a planned or organized demonstration," (Doc. 28, p. 26); there is no evidence that such a policy existed in 2015 or that its provisions were enforced against Plaintiff.
Thus, the only University policy Williams could have been enforcing is the Student Handbook Policy, which subsequently became the Distribution of Non-University Publications Policy. And Williams testified that he had annual training that involved "making sure we reviewed the policy." (Doc. 50-1, p. 9 (Williams Dep., p. 7).) Additionally, Williams testified that he "typically . . . [does not] just interfere with someone who is, you know, passing out pamphlets," but that he chose to "interfere" with Plaintiff's distribution of leaflets because he was "bothering students." (Id. at pp. 10-11 (Williams Dep., pp. 8-9).) In sum, viewing the facts in the light most favorable to Plaintiff, Williams believed the Student Handbook Policy authorized him to expel from campus anyone distributing leaflets who had not previously obtained permission from a University administrator.
On June 15, 2020, Plaintiff brought suit against Dr. John Jasinski, President of the University, Dr. Jay Johnson, Interim Director of the University's Kansas City campus, and all of the members of the University Board of Regents in their official capacities, along with Williams in his individual and official capacity. (Doc. 1.) Defendants later filed a motion to dismiss, which the Court granted in part, (see Doc. 38), narrowing the scope of Plaintiff's claims. Because most of the disputes in this case are legal, rather than factual, much of the Court's analysis below tracks or summarizes its discussion in the order on Defendants' motion to dismiss. Plaintiff's remaining claims are as follows:
• Count I asserts that the Student Handbook Policy is unconstitutionally overbroad, and that all Defendants,
acting in their official capacity, violated his First Amendment rights by enforcing the Policy. This Count seeks declaratory and injunctive relief against the enforcement of the Policy.Defendants have now filed a Motion for Summary Judgment as to all of these claims. (Doc. 49.) Plaintiff opposes the Motion. (Doc. 53.) The Court resolves these issues below.
• rights under the Missouri Campus Free Expression Act ("MCFEA"). This Count seeks monetary damages.
• Count III asserts that all Defendants, acting in their official capacity, violated Plaintiff's rights under the MCFEA. This Count seeks monetary damages.
II. DISCUSSION
"Summary judgment should be granted when—viewing the facts most favorably to the nonmoving party and giving that party the benefit of all reasonable inferences—the record shows that there is no genuine issue of material fact." Schilf v. Eli Lilly & Co., 687 F.3d 947, 948 (8th Cir. 2012) (citing FED. R. CIV. P. 56(c)). "A fact is material if it might affect the outcome of the suit," and a genuine dispute exists when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Dick v. Dickinson State Univ., 826 F.3d 1054, 1061 (8th Cir. 2016) (cleaned up; citations omitted). "The party opposing summary judgment cannot rest solely on . . . [m]ere allegations, unsupported by specific facts or evidence beyond the nonmoving party's own conclusions," Morgan v. A.G. Edwards & Sons, Inc., 486 F.3d 1034, 1039 (8th Cir. 2007), but must instead point to evidence in the record demonstrating the existence of a factual dispute. FED. R. CIV. P. 56(c)(1); Conseco Life Ins. Co. v. Williams, 620 F.3d 902, 909-10 (8th Cir. 2010). With these principles in mind, the Court turns to Defendants' arguments with respect to each Count in turn.
a. Count I: First Amendment Violation
The Court structures its discussion of Count I with a review of its previous Order on Defendants' Motion to Dismiss, and how the case has changed (and stayed the same) since the Court issued that Order. (Doc. 38.) Both parties challenge various aspects of the Court's previous rulings. The Court addresses these challenges, but finds that very little of substance has changed since it ruled on Defendants' Motion to Dismiss.
1. Standing and Nature of Plaintiff's Challenge
Initially, the Court interpreted Plaintiff's First Amendment claim as a facial challenge to all of the policies identified in the Second Amended Complaint—that is, the Student Handbook Policy, the Visitor Demonstration Policy, and the Distribution of Non-University Publications Policy. (Doc. 38, p. 8.) The effect of all of those policies, the Court held, was that a "non-student [must] request permission from a school administrator before distributing materials on campus," and that the administrator could "deny permission to speakers who wish to engage in certain categories of speech." (Doc. 38, p. 3.) Because Plaintiff had alleged that he was expelled from campus and issued the Warning as a result of the policies, the Court held that Plaintiff had standing to challenge them.
Now, as Defendants point out, the evidence shows that only the Student Handbook Policy was in effect when Plaintiff received the Warning, although it appears that the Distribution of Non-University Publications Policy is the same as the Student Handbook Policy, but promulgated under a different name. (Doc. 50, p. 12.) Therefore, Defendants argue that Plaintiff lacks standing to challenge the Visitor Demonstration Policy, because that policy was not in effect when he was expelled from campus. (Doc. 50, pp. 12-13.) Plaintiff admits that the Visitor Demonstration Policy was enacted after the events giving rise to this case, but claims he still has standing to challenge it because it "is simply yet another reason why he has been deterred from returning" to the Campus. (Doc. 53, p. 15.) The Court agrees with Defendant. As explained in greater detail in the Court's prior order, to have standing to challenge a policy, a plaintiff must show that he "face[s] a credible threat of present or future prosecution" under that policy. Zanders v. Swanson, 573 F.3d 591, 593 (8th Cir. 2009) (emphasis added); (see generally Doc. 38, pp. 5-7). The Court held that the Warning established a "credible threat of prosecution," because it admonished Plaintiff that if he returned to the Campus, he would be arrested for trespass. (Doc. 38, p. 7.) But the basis for the Warning was the policies in place when Plaintiff received it—it does not create a "credible threat of prosecution" under policies which never applied to Plaintiff. Moreover, the Visitor Demonstration Policy appears to regulate physical demonstrations involving multi-person groups, which is not the sort of activity Plaintiff routinely engages in. Therefore, the Court agrees that the Visitor Demonstration Policy is not a basis for Count I, and that only the Student Handbook Policy is at issue.
2. Facial Overbreadth of the Policies
In its prior order, after construing Plaintiff's challenge to the policies, the Court held that they were not facially overbroad. (Doc. 38, p. 10.) In order to mount a facial overbreadth challenge to a policy, a plaintiff must show that "a substantial number of its applications are unconstitutional, judged in relation to the statute's plainly legitimate sweep." Sisney v. Kaemingk, 886 F.3d 692, 697 (8th Cir. 2018) (citation omitted). The Court characterized the policies as essentially a permit requirement, which obliged non-students to obtain permission from a University administrator before engaging in speech on Campus; but, because the policies only forbade unprotected speech, like obscenities and fighting words, the Court found that the policies are content-neutral. (Doc. 38, pp. 10-11.) The Court then held that the policies are not facially overbroad under the relevant Eighth Circuit law. (Id.)
Plaintiff now challenges this holding in his opposition to Defendants' motion. (Doc. 53, p. 17.) Plaintiff first contends that the policies—which have now narrowed to the Student Handbook Policy and its successor, the Distribution of Non-University Publications Policy—are "content-based restrictions," and hence, subject to strict scrutiny. (Doc. 53, p. 18.) The Court disagrees. While content-based restrictions are generally subject to strict scrutiny, if the only content a policy restricts falls into "well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem," the policy is not subject to strict scrutiny. United States v. Stevens, 559 U.S. 460, 468-69, 130 S.Ct. 1577, 176 L.Ed.2d 435 (2010). Here, the Student Handbook Policy enabled University administrators to deny permission to distribute non-university publications only when those publications contain material that is "defamatory, obscene, likely to inflict injury or tend to incite immediate violence (fighting words) or directed to inciting or producing imminent lawless action." (Doc. 28, p. 28.) These are all "traditional categories" of unprotected speech, and therefore, the Student Handbook Policy is not subject to strict scrutiny.
However, while a government entity can proscribe all forms of a particular category of unprotected speech—say, defamation—it cannot proscribe only defamatory speech that advocates for a certain viewpoint. R.A.V. v. St. Paul, 505 U.S. 377, 383, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992).
Contrary to Plaintiff's arguments, the Student Handbook Policy is closely akin to the policy at issue in Bowman v. White, which the Court analyzed at length in its prior order. 444 F.3d 967 (8th Cir. 2006). There, a university enacted a policy requiring non-students to obtain a permit before speaking on campus, and preventing any single non-student from obtaining a permit on more than five days per semester. Id. at 973. The Eighth Circuit held that such a permitting requirement is a prior restraint on speech, and permissible only if it "does not delegate overly broad licensing discretion to a government official, is content-neutral, is narrowly tailored to the University's significant governmental interests, and leaves ample alternative channels for communication." Id. at 980. In its prior order, the Court held that the Student Handbook Policy meets these requirements because (1) it allows University officials to limit speech only if it falls into a well-defined traditional category of "unprotected speech," and does not allow the officials to restrain protected speech due to its content, (2) serves the University's legitimate interest in maintaining order on its Campus, and (3) leaves ample (and nearby) areas for non-students to engage in speech. (Doc. 38, p. 10.)
3. Procedural Protections Requirement
Although the Court determined that the substance of the Student Handbook Policy is constitutionally permissible, the Policy is comparable to the licensing or permitting requirements discussed in a line of Supreme Court cases beginning with Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965). As such, the Court held in its previous order that the University was required to include procedural safeguards for non-students who wish to speak on campus, and in particular, that the policies must contain a "specified and reasonable time period" for an administrator to "make the decision" about whether the non-student can speak on campus. (Doc. 38, p. 12.) Because the facts in the Second Amended Complaint suggest that the policies do not require the University to decide within a specified and reasonable time period, the Court held that Plaintiff had stated a First Amendment claim.
Defendants now argue that the undisputed facts show that the Student Handbook Policy is not a licensing or permitting requirement, but instead, simply a requirement that non-student speakers give notice of their intent to speak on the Campus—and, therefore, that the procedural protections required by Freedman and its progeny do not apply here. (Doc. 50, pp. 14-15.) The gist of Defendants' argument is that the Student Handbook Policy is not a permitting requirement because "the four corners of the policy do not call for the University to conduct any review of the proposed speech itself—much less a review leading to the issuance of a permit or license to engage in speech. All that is required is 'notice.' " (Doc. 50, p. 15.) Defendants also contend that the Policy does not "call[ ] for a mandatory review of the materials or the exercise of discretion by a University official." (Id.)
The Court rejects this argument. As Plaintiff points out, the Student Handbook Policy provides that "[d]istribution of non-University publications will be unrestricted" only if the publication is non-commercial, and does not contain any certain categories of unprotected speech. (Doc. 28, p. 28 (the "Student Handbook Policy").) This implies that a University administrator can review the proposed speech to ascertain whether she believes it contains, for instance, obscenity or fighting words—and if it does, she can restrain the speech before it occurs. This is manifestly a permitting scheme, and indeed, that is exactly how Williams explained the Policy to Plaintiff when he was ejecting him from the Campus: "if you don't have permission you can't be on campus handing out pamphlets." (Doc. 53-4 (video footage of the encounter between Plaintiff and Williams).) Moreover, the Student Handbook Policy does appear to allow University officials to exercise discretion. Williams testified in his deposition that he typically does not interfere with people passing out literature on the Campus—regardless of whether they had previously obtained permission or gave notice—but chose to approach Plaintiff because he believed Plaintiff was "bothering students." (Doc. 50-1, pp. 9-11 (Williams Dep., pp. 7-9).) In other words, Williams was able to exercise his discretion in determining whether to enforce the Policy.
Because the evidence has borne out Plaintiff's contention that the Student Handbook Policy was akin to a permitting scheme, the Court adheres to its conclusion that the procedural requirements of Freedman and its progeny apply. (Doc. 38, p. 12.) Specifically, those cases hold that an entity that imposes a permitting scheme must ensure that (1) "the licensor must make the decision whether to issue the license within a specified and reasonable time period during which the status quo is maintained," and (2) some manner of reviewing the decision is available. FW/PBS, Inc. v. Dallas, 493 U.S. 215, 228, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990) (plurality opinion).
The second of these criteria is not really at issue here. Some Supreme Court cases have suggested that where a licensing scheme affords considerable discretion to a decision-maker, the licensor must also create special, expedited review procedures. E.g., City of Littleton v. Z.J. Gifts D-4, LLC, 541 U.S. 774, 781-83, 124 S.Ct. 2219, 159 L.Ed.2d 84 (2004). The Court held in its prior order that the criteria in the policies were not discretionary enough to require special review procedures, and Plaintiff does not meaningfully challenge that holding or otherwise suggest that the normal method of seeking judicial review—namely, suing in court—is inadequate.
In its prior order, the Court held that Plaintiff had stated a claim that the University failed to impose the first of these protections—namely, ensuring that a University administrator decided whether he was allowed to speak in a reasonable time period, and maintaining the status quo during that period. (Doc. 38, p. 13.) None of the evidence Defendants present undermines that conclusion. In fact, the facts of this case confirm the reason for requiring such procedural protections. Williams observed Plaintiff distributing leaflets on the Campus, and enforced the Student Handbook Policy by requiring Plaintiff to seek permission from a University administrator before continuing. No University administrator was available, so Williams expelled Plaintiff from campus and issued a Warning barring him from returning. In other words, Plaintiff was prevented from speaking under the Policy even though no University administrator ever assessed whether the literature he was distributing fell into an unprotected category of speech. Suppose the University ensured that there was never an administrator available to permit non-students to speak on the campus—or suppose an administrator were available, and she told Plaintiff that she would decide whether he could distribute literature on the Campus in two months, and that he had to leave campus until then then. If Freedman and its progeny did not apply to this scheme—that is, if no procedural protections were required—then neither of these scenarios would present a constitutional problem, and the University could functionally ensure that no one could distribute non-University publications on Campus. That is obviously inconsistent with the principles of free speech the First Amendment embodies. For these reasons, the Court stands by its analysis of Count I, and DENIES Defendants' Motion for Summary Judgment on Plaintiff's First Amendment claim.
b. Counts II and III: MCFEA Violations
Counts II and III both arise under the MCFEA. The MCFEA provides that outdoor areas of public universities are "traditional public forums," and that universities "may maintain and enforce reasonable time, place, and manner restrictions in service of a significant institutional interest only when such restrictions employ clear, published, content, and viewpoint-neutral criteria, and provide for ample alternative means of expression." MO. REV. STAT. § 173.1550.2. Count II asserts that Williams is liable in his individual capacity for violating Plaintiff's rights under the statute, and Count III asserts that all Defendants are liable in their official capacity.
Given that the MCFEA closely tracks the First Amendment protections discussed in Bowman and other cases, in its previous order, the Court assumed without deciding that the MCFEA incorporated federal First Amendment caselaw—including the Freedman line of cases—and hence that by stating a First Amendment claim, Plaintiff had also stated a claim under the MCFEA. (Doc. 38, p. 18.) Now, Defendants argue that the MCFEA does not incorporate the Freedman principles, and therefore that the facts do not support an MCFEA claim. (Doc. 50, pp. 20-21.) As far as the Court is aware, no Missouri court has interpreted the MCFEA. Therefore, the Court's responsibility is to "predict what the Missouri Supreme Court would do if faced with the issue" at hand, considering Missouri principles of statutory interpretation, "relevant state precedent, analogous decisions, considered dicta, and any other reliable data." Dittmaier v. Sosne (In re Dittmaier), 806 F.3d 987, 989 (8th Cir. 2015) (citation, brackets, and ellipses omitted).
Under Missouri law, "[i]n determining the meaning of a statute, the starting point is the plain language of the statute itself." International Business Machines Corp. v. Director of Revenue, 958 S.W.2d 554, 557 (Mo. 1998) (en banc). Defendants point out that while the MCFEA explicitly codifies some First Amendment protections—for instance, designating public university campuses as "traditional public forums," and requiring universities to assert a "significant institutional interest" to support a restriction on campus speech—the plain language of the statute contains no requirement that university policies on campus speech include any particular procedural safeguards. (Doc. 50, pp. 20-21.) Plaintiff, for his part, invokes the rule against surplusage. He argues that because the First Amendment establishes the baseline for free expression rights, it would make no sense for the Missouri legislature to enact a "Free Expression Act" that incorporates fewer rights than the First Amendment. (Doc. 53, pp. 27-28.)
The Court agrees with Defendants. While the plain language of the MCFEA imposes substantive limits on the kinds of speech-restricting policies a public university can implement—limits that generally track federal law—it says nothing about the procedures public universities must use to execute those policies. And as Defendants point out, Missouri courts have repeatedly held that mere reference to federal law in a state statute, or parallels between the state statute and federal law, do not prove that the state statute actually incorporates all of the relevant provisions of federal law. Missouri Hosp. Ass'n v. Air Conservation Comm'n, 874 S.W.2d 380, 398 (Mo. Ct. App. 1994). Where the Missouri legislature intends for a state statute to incorporate federal law, it says so explicitly, and the MCFEA—despite its parallels with federal First Amendment jurisprudence—contains no such explicit statement. See, e.g., Hamacher v. Director of Revenue, 779 S.W.2d 565, 566 (Mo. 1989) (en banc) (a statute reading "[a]ny term . . . shall have the same meaning as when used in a comparable context in the laws of the United States" "connot[ed] some incorporation of federal statutes by reference").
Moreover, the Court disagrees with Plaintiff's argument that the MCFEA would be redundant if it did not include every nuance of federal First Amendment caselaw; the statute may significantly expand campus free expression rights in at least two ways even if, in other ways, it is less expansive than federal law. First, the MCFEA explicitly provides that all public university outdoor campuses are "traditional public forums," meaning that all public universities must meet a high burden to impose any restrictions on campus speech—and foreclosing any argument by a public university that its campus is not a public forum. MO. REV. STAT. § 173.1550.2. Second, the MCFEA permits aggrieved parties to sue for monetary damages, whereas a plaintiff asserting only First Amendment claims can often only obtain injunctive or declaratory relief. MO. REV. STAT. § 173.1550.6. Therefore, the fact that the MCFEA does not incorporate the Freedman principles does not render it redundant.
In sum, the MCFEA simply does not say anything about the procedural protections a public university must incorporate in a speech-limiting policy, and under Missouri principles of statutory interpretation, the Court finds that it would be improper to read an incorporation of federal caselaw into the statute. Therefore, the evidence does not support Plaintiff's claims of an MCFEA violation, and Defendants' Motion for Summary Judgment is GRANTED with respect to Counts II and III.
III. CONCLUSION
For the foregoing reasons, Defendants' Motion for Summary Judgment, (Doc. 49), is GRANTED as to Counts II and III, and DENIED as to Count I.