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May 12, 2017

Texas Judge Dismisses Exxxotica's Suit Against Dallas

DALLAS, TX—U.S. District Judge Sidney A. Fitzwater on Thursday evening dismissed the lawsuit filed by Three Expo Events LLC, the company that puts on the Exxxotica Lifestyle Conventions nationwide, against the city of Dallas, which in early 2016 barred Three Expo from returning to the city-owned Kay Bailey Hutchison Convention Center for a reprise of its successful Exxxotica Dallas convention in 2015. The judge's excuse? Three Expo didn't have "standing" to bring the suit in the first place, because "Three Expo Events" wasn't the name of the company on the contract for the 2015 convention; "Exxxotica Dallas" was. As AVN has previously reported, the controversy arose after oil millionaire and religio-conservative Ray Hunt and some other business/property owners in downtown Dallas pressured city council members to deny Three Expo its Exxxotica permit, even though there was no evidence that the 2015 convention had broken any laws, and even though the city had granted convention center permits to a variety of groups like the Republican Party, the National Rifle Association, the Southern Baptist National Convention and other social groups, which Three Expo had argued made the convention center a "public forum" where it had a right to rent space. Three Expo attorneys Roger Albright and J. Michael Murray tried to "fix" the city's objection to Three Expo pressing its lawsuit by attempting, last March, to file a Second Amended Complaint, adding Exxxotica Dallas LLC as a named plaintiff, even though the company is essentially a subsidiary of Three Expo Events, though Three Expo's J. Handy described the company as an "affiliate." And considering that Three Expo Events has been putting on Exxxotica shows around the country for several years, Judge Fitzwater could have taken judicial notice of the relationship between Three Expo and Exxxotica Dallas—but this is Texas, after all, and sexual businesses have fewer rights there than some other places. But on Thursday, Judge Fitzwater denied Three Expo's attempt to amend its lawsuit to add Exxxotica Dallas and granted the city's motion to dismiss the lawsuit (without prejudice) for Three Expo's alleged lack of standing. In so doing, the judge relied on statements Handy had given in depositions and legal filings where he said, among other things, that "[i]t is the standard business practice for Three Expo Events, L.L.C. to be the underlying management company for the various conventions conducted throughout the country while a separate ownership entity (e.g., Exotica Miami, Exotica Chicago or Exotica Dallas) is created to own the particular event," and that Three Expo "never enters into contracts with convention centers or local facilities in any location for any of the events," and that it "never intends to at all in the future." Hence, the "logic" of Judge Fitzwater's decision, as stated in his Order of Dismissal: "According to the City, although the [City Council's] Resolution prohibits Convention Center staff from entering into a contract with Three Expo, Three Expo admits that it has never intended, and never will intend, to enter into a contract with the City. The City posits that, because the Resolution prohibits an action that Three Expo does not intend to perform at any time in the future, it does not injure Three Expo. ... The City maintains that it is immaterial that Three Expo produced, managed, and derived revenue from Exxxotica Dallas 2015 because the Resolution prohibits a contract that Three Expo was and is unwilling to enter into, so Three Expo’s First Amendment rights are not at stake in this litigation." There are other, similar reasons given for the dismissal—all of which imply that if the entity, whatever its name, that was going to contract with the city for the convention center's use had been the lawsuit's plaintiff, everything would have been hunky-dory, legally speaking. Beyond that, Judge Fitzwater also ruled that Three Expo had failed to meet the legal deadline for filing its amended complaint to add Exxxotica Dallas to the lawsuit, and found that the fact that the city only filed its Motion to Dismiss the lawsuit on the basis of lack of standing on March 3, 2017 was no excuse for Three Expo not anticipating that legal strategy, and that therefore, it should have filed to add Exxxotica Dallas as a plaintiff preemptively. "Three Expo’s explanation for failing to timely file a motion for leave to file a second amended complaint is unpersuasive," Judge Fitzwater claimed in his Order. "Given the essential and unchanging role that standing plays, every plaintiff who brings suit in federal court knows that it must establish that it has standing. Three Expo should have known this before it ever filed suit. And it certainly knew before the Scheduling Order’s June 13, 2016 deadline for seeking leave to add parties that Exotica Dallas was the owner and contracting party for the 2015 Exxxotica expo and that Exotica Dallas would be the owner and contracting party for any future Exxxotica events held in Dallas." Is that legal hairsplitting, considering Three Expo's ownership interest in Exxxotica Dallas? Of course! But again, this is Texas—and in any case, the judge ruled that even Exxxotica Dallas wouldn't have standing, since the entity looking to hold an Exxxotica Expo in Dallas in 2016 was reportedly Exxxotica Texas LLC. In any case, and as Three Expo's attorney Roger Albright pointed out, the judge's Order fails to make any mention of the crux of the lawsuit: the city's argument that the Hutchison Convention Center is not a "public forum" and therefore doesn't have to rent its space to an Exxxotica convention. "Instead," Albright told the Dallas Morning News via email, "we are presumably looking at an appeal and local taxpayers like me being asked to pay even more attorney's fees to the city's outside counsel beyond the $675,000 already spent." Yup, that's right: Dallas taxpayers have already spent more than three-quarters of a million dollars to prevent a popular (judging by 2015's attendance) sexy lifestyle convention from coming to their town—and now they're going to have to pay a lot more when the judge's dismissal is appealed, and if that appeal fails, even more when a replacement suit is filed. At one point, that worked out to about $4,000 per day in legal expenses, at least some of it going to the infamous Religious Right attorney Scott D. Bergthold, who is co-counsel for the city council and some of its members. Perhaps it's time to ask the Dallas electorate if they're happy with their city spending so much money to stop them from having a good time?

 
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