American Alliance for Equal Rights v. Southwest Airlines Co — Entry #61

Case 3:24-cv-01209-D          Document 61        Filed 04/09/25       Page 1 of 8      PageID 818


                            UNITED STATES DISTRICT COURT
                             NORTHERN DISTRICT OF TEXAS
                                  DALLAS DIVISION

AMERICAN ALLIANCE FOR
EQUAL RIGHTS,

Plaintiff,

v.                                                    Case No. 3:24-cv-01209-D

SOUTHWEST AIRLINES CO.,

Defendant.


        DEFENDANT SOUTHWEST AIRLINES CO.’S MOTION FOR ENTRY OF
                    JUDGMENT AND BRIEF IN SUPPORT


        Plaintiff American Alliance for Equal Rights (“Alliance”) filed this suit against Defendant

Southwest Airlines Co. (“Southwest”) in May 2024 seeking injunctive and declaratory relief in

connection with future application cycles of the ¡Lánzate!/Take Off! Travel Award Program!

(“Award Program”), as well as nominal damages in the amount of $0.01. On December 6, 2024,

the Court held that the Alliance’s forward-looking claims for declaratory and injunctive relief were

moot, as Southwest had “unconditionally and irrevocably eliminate[d] the challenged Award

Program provisions from any and all future program application cycles,” and the Court dismissed

all but the nominal damages claim. (ECF 33 at 5, 10, 13.) The Alliance’s sole remaining claim,

therefore, is for $0.01 in nominal damages.

        Southwest now moves this Court to enter judgment against it for $0.01 in nominal damages

and to end this litigation without addressing or resolving the merits of the parties’ current dispute.

In support of this Motion for Entry of Judgment (the “Motion”), Southwest states, as follows:


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           1. Southwest previously moved to dismiss the Alliance’s complaint in its entirety on

               the basis of mootness, as Southwest has unconditionally eliminated the challenged

               Award Program provisions from any future application cycles and had sent the

               Alliance one cent. (ECF 20.)1 The Alliance opposed a finding of mootness with

               respect to its nominal damages claim on the basis that Southwest “resists a

               judgment” on that claim, among other reasons. (ECF 28 at 10.) In the December

               6, 2024 order, this Court held that the Alliance’s forward-looking claims for

               declaratory and injunctive relief were moot, but that the Alliance’s claim for $0.01

               in nominal damages was not moot. (ECF 33 at 5, 10, 13.)

           2. Southwest now moves to accept judgment for $0.01 in nominal damages, without

               an admission of liability and without the Court resolving the merits of the parties’

               current dispute. The Alliance would be a prevailing party for purposes of this

               judgment, thereby permitting the Alliance to seek reasonable fees and costs, in

               accordance with Farrar v. Hobby, 506 U.S. 103 (1992) and its progeny.2

           3. Southwest’s request to accept judgment for $0.01 follows a straightforward path to

               end this litigation, without a finding on the merits of the litigation. As the Brief for

               the United States as Amicus Curiae stated in Uzuegbunam:

                      [W]here the plaintiff has no live claim for prospective relief or compensable
                      harm, and thus seeks only nominal damages to redress past injury, the
                      defendant should be able to end the litigation without a resolution of the
                      constitutional merits, simply by accepting the entry of judgment for nominal
                      damages against him. . . .


1
  In addition to mootness, Southwest also argued that the Alliance lacked associational standing
to seek nominal damages. (ECF 20 at 10-12.)
2
 Southwest expressly reserves and does not waive the right to challenge the reasonableness of
any fees/costs requested.
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                  Accordingly, the defendant . . . might move for entry of judgment on the
                  nominal damages claim when no other claims for relief remain. In those
                  situations, a district court should enter judgment on the basis of defendants’
                  concession alone, without adjudicating the merits of the constitutional
                  claim. After all, courts resolve constitutional questions only as a necessary
                  means to decide an underlying dispute between the parties, not as the
                  ultimate end itself. . . . [S]o long as plaintiff’s only claim is for nominal
                  damages and the defendant does not oppose the district court’s summary
                  entry of that judgment, the court should be able to dispose of the live
                  controversy between the parties without resolving the underlying merits of
                  their constitutional dispute.

           Brief for the United States as Amicus Curiae Supporting Petitioners, Uzuegbunam

           et. al. v. Preczewski et. al., 592 U.S. 279 (2021) (No. 19-968), 2020 WL 5845980

           (“United States Amicus Brief”), at 29-30.

        4. Justice Kavanaugh’s concurrence in Uzuegbunam recognized that this path was

           always available in a case like this one, citing the United States’ Brief for the

           proposition “that a defendant should be able to accept the entry of a judgment for

           nominal damages against it and thereby end the litigation without a resolution of

           the merits.” Uzuegbunam v. Preczerski, 592 U.S. 279, 293-94 (2021) (Kavanaugh,

           J., concurring).   Other federal circuit court judges have reached the same

           conclusion. See Utah Animal Rts. Coal. v. Salt Lake City Corp., 371 F.3d 1248,

           1273 (10th Cir. 2004) (Henry, J., concurring) (“A defendant could also simply pay

           the nominal damages, thereby mooting the case (and rely on this circuit’s adoption

           of Justice O’Connor’s factors to evaluate attorney fees from Farrar . . . ).”); Amato

           v. City of Saratoga Springs, N.Y., 170 F.3d 311, 323 (2d Cir. 1999) (Jacobs, C.J.,

           concurring) (defendants can “allow the district court to enter judgment against


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               them, and pay the dollar to the vindicated and happy plaintiff”);3 see also Radha

               Geismann, M.D., P.C. v. ZocDoc, Inc., 909 F.3d 534, 542 (2d Cir. 2018) (“[W]here

               a defendant surrenders to ‘complete relief’ in satisfaction of a plaintiff's claims, the

               district court may enter default judgment against the defendant—even without the

               plaintiff’s agreement thereto—and ‘[t]hen, after judgment is entered, the plaintiff’s

               individual claims will become moot for purposes of Article III.’”) (citation

               omitted); Texas v. Yellen, 597 F. Supp. 3d 1005, 1018 (N.D. Tex. 2022) (“[A] claim

               becomes moot when a plaintiff actually receives all of the relief he or she could

               receive on the claim through further litigation.”) (citation omitted), aff’d, 105 F.4th

               755 (5th Cir. 2024).4

           5. This Motion resolves the Alliance’s previous objection that Southwest was

               “resist[ing] judgment” and, therefore, had not obtained mootness in the manner

               contemplated by the United States and Justice Kavanaugh in Uzuegbunam. Cf.

               ECF 28 at 10 (“The logic is that, once a plaintiff receives a binding judgment from

               a court entitling it to all the relief it requested, it has nothing concrete left to litigate


3
  See Transcript of Oral Argument, Uzuegbunam at 20:25-21:9 (Jan. 12, 2021) (Kavanaugh, J.)
(“Judge Jacobs in the Second Circuit opinion in Amato and Judge Henry in the Tenth Circuit
opinion in Utah Animal Rights, their separate opinions, both suggested, as the government does
here, that there’s not much at stake because a defendant can always surrender to the judgment on
the nominal damages claims when no other claims remain, and the district court simply enters
judgment without adjudicating the merits.”).
4
  The fact that judgment is properly entered without reaching the merits is in general accord with
the procedure in Rule 68, which allows offers of judgment to disclaim liability, as this Court has
recognized. See Barrow v. Greenville Indep. Sch. Dist., 2005 WL 1867292, at *19 (N.D. Tex.
Aug. 5, 2005) (Fitzwater, J.) (“The court agrees with other courts that hold that Rule 68 does not
require that offers of judgment include admissions of liability” including because “requiring a
clear admission of liability in every offer of judgment would reduce the effectiveness of Rule 68
as a tool to encourage the settlement of all lawsuits.” (cleaned up)), aff’d, 2007 WL 3085028 (5th
Cir. Oct. 23, 2007).
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               about.”). Because the request for $0.01 in nominal damages is all that remains of

               the Alliance’s claims, and because this Motion would render the Alliance a

               prevailing party on that claim, this Motion would leave the parties with “nothing

               concrete left to litigate about.” Cf. id.

           6. This Motion also addresses this Court’s December 2024 conclusion that a

               “textbook offer to settle” does not render a nominal damages claim moot. ECF 33

               at 12. Although Southwest disputes that its unilateral transfer of one penny was a

               settlement offer, in contrast to such unilateral transfer, Southwest now affirmatively

               seeks a judgment by this Court for nominal damages in the amount of $0.01. Cf.

               ECF 28 at 12 (“Without a judgment from this Court, Southwest’s mailing was a

               ‘revocable offer’ to pay the Alliance’s nominal damages.”).5

                                          CONCLUSION

       For the reasons stated above, Southwest respectfully requests that the Court grant this

Motion and enter a judgment in Plaintiff’s favor for $0.01 and reasonable attorneys’ fees.6


5
 For the same reason, the Court’s prior discussion of Chief Roberts’ dissent in Uzuegbunam
(ECF 33 at 13 n.5) is not probative with respect to this Motion. As the Brief for the United
States recognized in Uzuegbunam, a motion seeking entry of judgment for nominal damages is
categorically distinct from “an unaccepted settlement offer or offer of judgment” subject to
Campbell-Ewald Co. v. Gomez, 577 U.S. 153 (2016). See Brief for United States at 29,
Uzuegbunam 592 U.S. 279 (No. 19-968).
6
  Because Southwest is requesting that this Court enter judgment against it for the $0.01,
Southwest does not believe that it is necessary to deposit the $0.01 in the Court’s registry
pursuant to Federal Rule of Civil Procedure 67. Indeed, if judgment is entered against it,
Southwest will pay the $0.01 to the Alliance in accordance with the judgment, or repeat the prior
transfer of $0.01 to the Alliance. However, Southwest is willing to make such a deposit if the
Court disagrees with Southwest’s position on this issue.
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Case 3:24-cv-01209-D    Document 61     Filed 04/09/25     Page 6 of 8    PageID 823


                                      Respectfully submitted,


 Dated: April 9, 2025                  /s/ Tristan Morales
                                       Tristan Morales (pro hac vice)
                                       O’MELVENY & MYERS LLP
                                       1625 Eye St., 10th Floor
                                       Washington, DC 20006
                                       (202) 383-5112
                                       tmorales@omm.com

                                       Kimberly Williams (TX Bar No. 24050592)
                                       O’MELVENY & MYERS LLP
                                       2801 North Harwood St., Ste. 1600
                                       Dallas, TX 75201
                                       (972) 360-1908
                                       kwilliams@omm.com

                                       Anton Metlitsky (pro hac vice)
                                       O’MELVENY & MYERS LLP
                                       1301 Ave. of the Americas, Ste. 1700
                                       New York, NY 10019
                                       (212) 326-2000
                                       ametlitsky@omm.com

                                       Counsel for Defendant Southwest Airlines Co.


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Case 3:24-cv-01209-D        Document 61        Filed 04/09/25     Page 7 of 8      PageID 824


                            CERTIFICATE OF CONFERENCE

        I hereby certify that on April 9, 2025, I conferred by telephone with Gabe Anderson and
Cam Norris, counsel for Plaintiff American Alliance for Equal Rights, who reported that they
will further consider the Alliance’s position after reviewing the filed Motion.


                                                    /s/ Tristan Morales

                                                    Tristan Morales


                                                    Counsel for Defendant Southwest Airlines
                                                    Co.


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Case 3:24-cv-01209-D         Document 61        Filed 04/09/25      Page 8 of 8      PageID 825


                                CERTIFICATE OF SERVICE

        I hereby certify that on April 9, 2025, the foregoing document was filed with the clerk of
court for the U.S. District Court, Northern District of Texas, using the electronic case filing
system of the court. The electronic case filing system sent a “Notice of Electronic Filing” to all
attorneys of record who have consented in writing to accept this Notice as service of this
document by electronic means.


                                                     /s/ Tristan Morales
                                                     Tristian Morales

                                                     Counsel for Defendant Southwest Airlines
                                                     Co.


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