     Case: 15-41256       Document: 00513606967         Page: 1     Date Filed: 07/25/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT     United States Court of Appeals
                                                       Fifth Circuit

                                                                                     FILED
                                                                                   July 25, 2016
                                       No. 15-41256
                                                                                  Lyle W. Cayce
                                                                                       Clerk
INTERCITY AMBULANCE EMERGENCY MEDICAL TECHNICIANS, LLC;
JUSTIN OAKERSON, Individually,

               Plaintiffs–Appellants,

v.

CITY OF BROWNSVILLE, TEXAS,

               Defendant–Appellee.



                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 1:14-CV-58


Before HIGGINBOTHAM, PRADO, and GRAVES, Circuit Judges.
PER CURIAM:*
       Treating Appellants’ Petition for Rehearing En Banc as a Petition for
Panel Rehearing, the Petition is DENIED, but we withdraw the prior opinion
and substitute the following, which is amended only as to Subpart II(A).
       In April 2014, Intercity Ambulance Emergency Medical Technicians,
LLC (“IAEMT”), a privately owned ambulatory service, and IAEMT’s president
and principal stockholder, Justin Oakerson, sued the City of Brownsville



       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.
R. 47.5.4.
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(“City”) after an IAEMT employee was cited for violating a City ordinance. The
district court granted summary judgment in favor of the City. We affirm.
           I. FACTUAL AND PROCEDURAL BACKGROUND
      On March 20, 2014, an IAEMT employee was cited for violating a City
ordinance that required that all private ambulance companies working within
the City be licensed by the City. When the employee appeared in court to
address the citation, he was cited for two additional violations of the ordinance.
All three citations were ultimately dismissed.
      In April 2014, IAEMT and Oakerson filed suit against the City, claiming
that the citations issued to IAEMT’s employee were issued in retaliation for
Oakerson’s involvement in a state court suit between the City and the
Brownsville Firefighters Association IAFF Local 970 (“BFA”). In the state
court suit, the BFA designated Oakerson as an expert witness, but the suit
settled before Oakerson ever had the opportunity to testify.
      In their amended complaint, IAEMT and Oakerson (collectively,
“Plaintiffs”) asserted numerous causes of action against the City, including
several constitutional claims. The City filed a motion for summary judgment
in June 2015. Plaintiffs filed a cross-motion for partial summary judgment.
The district court granted the City’s motion and denied Plaintiffs’ motion.
Plaintiffs timely appealed.
                               II. DISCUSSION
      The district court had jurisdiction over this suit under 28 U.S.C. § 1331.
Our Court has jurisdiction pursuant to 28 U.S.C. § 1291.
      Our review of a district court’s grant of summary judgment is de novo,
viewing “all facts and evidence in the light most favorable to the non-moving
party.” Amerisure Mut. Ins. Co. v. Arch Specialty Ins. Co., 784 F.3d 270, 273
(5th Cir. 2015). Summary judgment is appropriate “if the movant shows that
there is no genuine dispute as to any material fact and the movant is entitled
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                                       No. 15-41256
to judgment as a matter of law.” Fed. R. Civ. P. 56(a). When “the evidence is
such that a reasonable jury could return a verdict for the nonmoving party,”
summary judgment is improper. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986) (quoting First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253
(1968)).
       After dismissing several of Plaintiffs’ claims, only three issues remained
at summary judgment: 1) Oakerson’s First Amendment retaliation claim; 2)
Plaintiffs’ equal protection claim; and 3) Plaintiffs’ request for equitable and
declaratory relief. The district court granted summary judgment as to each,
and we affirm.
A.     First Amendment Retaliation
       Oakerson argues that the City retaliated against him for asserting his
First Amendment right to testify as an expert witness in the state court suit
between the BFA and the City. He argues that the City retaliated against him
in two distinct ways: 1) by citing an IAEMT employee for operating an IAEMT
ambulance in violation of a City ordinance and 2) by actively interfering with
IAEMT’s relationships with its customers.
       As a preliminary matter, Oakerson argues that the district court’s grant
of summary judgment was premature because the deposition of his damages
expert was not fully transcribed. But, Oakerson’s argument is without merit.
If Oakerson felt that he could not properly defend against the City’s motion for
summary judgment without additional time to complete discovery, Federal
Rule of Civil Procedure 56(d) provided him with an appropriate remedy. See
Washington v. Allstate Ins. Co., 901 F.2d 1281, 1285 (5th Cir. 1990). 1 Because
Oakerson failed to file an affidavit or declaration requesting additional


       1The relief provided by Federal Rule of Civil Procedure 56(d) was previously found
under subsection (f) of the same rule. Fed. R. Civ. P. 56(d) advisory committee’s note to 2010
amendment.
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discovery under Rule 56(d), his argument that the district court prematurely
granted summary judgment is waived. See Fed. R. Civ. P. 56(d); Access
Telecom, Inc. v. MCI Telecomms. Corp., 197 F.3d 694, 719 (5th Cir. 1999).
      In its motion for summary judgment, the City alleged that Oakerson did
not have standing to bring a First Amendment claim. In response, Oakerson
appears to have argued that he has standing because any injury suffered by
IAEMT was an injury suffered by Oakerson individually. The district court
held that even assuming Oakerson and IAEMT can be treated as a single entity
for the purpose of establishing standing, Oakerson still failed to demonstrate
that he or IAEMT suffered a cognizable injury.
      Oakerson bears the burden of demonstrating he has standing to bring a
First Amendment claim. See Duarte ex rel. Duarte v. City of Lewisville, 759
F.3d 514, 517 (5th Cir. 2014). “Article III of the Constitution limits the
jurisdiction of federal courts to ‘Cases’ and ‘Controversies.’” Lance v. Coffman,
549 U.S. 437, 439 (2007). Central to this limitation is the requirement that
plaintiffs must have standing to bring a claim. Id. To establish standing,
Oakerson must demonstrate that he 1) “suffered an ‘injury in fact’” that is 2)
“‘fairly traceable’ to the [City’s] actions” and 3) “the injury will ‘likely . . . be
redressed by a favorable decision.’” Pub. Citizen, Inc. v. Bomer, 274 F.3d 212,
217 (5th Cir. 2001) (second alteration in original) (quoting Lujan v. Defs. of
Wildlife, 504 U.S. 555, 560–61 (1992)). The injury must affect Oakerson in a
“personal and individual way.” Lujan, 504 U.S. at 560 n.1.
      In reviewing a motion to dismiss, “general factual allegations of injury
resulting from the defendant’s conduct may suffice.” Pub. Citizen, 274 F.3d at
218 (quoting Lujan, 504 U.S. at 561). But, at summary judgment, Oakerson
cannot “rest on . . . ‘mere allegations.’” Lujan, 504 U.S. at 561 (quoting Fed. R.
Civ. P. 56(e)). He “must ‘set forth’ by affidavit or other evidence ‘specific facts’,”
id. (quoting Fed. R. Civ. P. 56(e)), “that, if true, would demonstrate an injury
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in fact that is fairly traceable to the defendant’s conduct and likely to be
redressed by a favorable ruling,” Prison Legal News v. Livingston, 683 F.3d
201, 212 (5th Cir. 2012). On appeal, Oakerson argues that his affidavit is
sufficient to demonstrate that he suffered an injury in fact. See Blue Br. 23.
We disagree. The affidavit describes his injury in the following general and
conclusory terms:
      [M]y ambulance company suffer[ed] substantial losses which
      directly effect my ability to provide for myself and my daughter,
      but I was more fearful of what the Fire Chief would do next if I
      continued to allow my ambulances [to] transfer patients into and
      out of the City of Brownsville because of my expert designation and
      testimony and the City of Brownsville.

ROA.1561. As such, Oakerson’s affidavit has failed to allege facts specific
enough to support an injury in fact at this stage of litigation. See Lujan, 504
U.S. at 561.
      Oakerson points to two additional pieces of evidence that he argues
demonstrate that he suffered an injury in fact. First, he contends that an
expert report on damages illustrates the financial loss suffered by Plaintiffs as
a result of the City’s actions. Second, he argues that a medical report provided
to the City’s counsel details the “mental and emotional harm caused by the
actions of the City.” But, Oakerson failed to designate either report as
summary judgment evidence in Plaintiffs’ response to the City’s motion for
summary judgment or in support of Plaintiffs’ motion for partial summary
judgment. In fact, Oakerson concedes that the medical report was never even
introduced into the district court record. Because Oakerson failed to bring
either piece of evidence to the court’s attention in its response to the City’s
motion for summary judgment, these arguments are waived on appeal. See
Keelan v. Majesco Software, Inc., 407 F.3d 332, 339 (5th Cir. 2005).



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                                  No. 15-41256
      Even assuming, as the district court did, that IAEMT and Oakerson can
be treated as a single entity for standing purposes, Oakerson has failed to
establish that he or IAEMT suffered an injury in fact. As Oakerson has failed
to satisfy Article III’s standing requirements, the district court’s grant of
summary judgment on Oakerson’s First Amendment claim is affirmed.
B.    Equal Protection Claim
      In their amended complaint, Plaintiffs claim that the City’s failure to cite
other ambulatory service companies for operating without a license is a
violation of the Fourteenth and Fifteenth Amendments. But, Plaintiffs have
abandoned this claim. The passing references in their brief are insufficient to
preserve any argument related to either amendment on appeal. See United
States v. Scroggins, 599 F.3d 433, 446–47 (5th Cir. 2010) (“A party that asserts
an argument on appeal, but fails to adequately brief it, is deemed to have
waived it.” (quoting Knatt v. Hosp. Serv. Dist. No. 1 of E. Baton Rouge Par.,
327 F. App’x 472, 483 (5th Cir. 2009))). Therefore, the district court’s grant of
summary judgment on Plaintiffs’ equal protection claim is affirmed.
C.    Equitable and Declaratory Relief
      Plaintiffs seek both equitable and declaratory relief. First, Plaintiffs seek
a declaration that the City “equitably licensed” them to operate within its
limits. Second, Plaintiffs seek an injunction requiring the City to issue them
an official license to operate. Third, Plaintiffs argue that the City implicitly
granted IAEMT a license to operate within City limits under the theory of
equitable estoppel. The district court granted summary judgment on all three
claims.
      On appeal, Plaintiffs fail to distinguish between the various forms of
equitable and declaratory relief requested. Plaintiffs seem to argue that
summary judgment was improper simply because Plaintiffs sought equitable
and declaratory relief at all. We find this argument unavailing. Plaintiffs have
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                                  No. 15-41256
failed to provide any specific arguments as to how they are entitled to
declaratory or injunctive relief. Similarly, Plaintiffs have failed to provide any
specific arguments related to their equitable estoppel claim. As Plaintiffs have
failed to raise a genuine dispute of material fact that they are entitled to any
form of equitable or declaratory relief, the district court’s grant of summary
judgment is affirmed.
                               III. CONCLUSION
         For the foregoing reasons, we AFFIRM the judgment of the district
court.




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