Myrtle Beach Mayor and Council Squash Motion To Compel in Superblock Takeover

4:19-cv-02087-JD Date Filed 03/15/23 Entry Number 115 Page 1 of 6
IN THE UNITED STATES DISTRICT

COURT DISTRICT OF SOUTH
CAROLINA FLORENCE DIVISION
Danny Group, LLC, Blazian Promotions & C.A. No. 4:19-cv-02087-JD

Company, LLC, and Hector Melendez
Plaintiffs,
vs.
City of Myrtle Beach, and John Pederson,
Defendants,
IN RE: NOTICE OF MOTION AND

MOTION TO QUASH
MICHAEL CHESTNUT, JACKIE HATLEY, TRIAL SUBPOENAS
JOHN KRAJC, CLYDE H. “MIKE” LOWDER,
PHILIP N. RENDER, AND GREGG SMITH
Individuals Michael Chestnut, Jackie Hatley, John Krajc, Clyde H. “Mike” Lowder, Philip N. Render,
and Gregg Smith hereby give notice and move the court to quash the subpoenas served on them by
Plaintiffs for the above captioned lawsuit, compelling individuals Michael Chestnut, Jackie Hatley, John
Krajc, Clyde H. “Mike” Lowder, Philip N. Render, and Gregg Smith 's to appear from March 20-24,
2023 at a trial of the above captioned lawsuit. (Exhibit A). In support of the motion, those individuals
would show the following to the court:
1. All of the named individuals are City Council members for the City of Myrtle Beach. Those
individuals have limited protection from appearing at trial in the above captioned lawsuit on the
grounds of legislative immunity and/or legislative privilege.
2. Plaintiffs’ complaint in the above captioned actiondoes not contain any allegations of individual acts
1
performed by any of the named individuals. Plaintiffs’ claims are brought under 42 USC §1983 for
unconstitutional policies or customs of the City of Myrtle Beach and for tortious interference with
contracts under the South Carolina Tort Claims Act.
3. Plaintiffs’ claims are for acts of the City of Myrtle Beach that occurred before Jackie Hatley, John
Krajc, and, Gregg Smith were elected to serve on City Council for the City of Myrtle Beach.
4. Any knowledge of official customs or policies of the City of Myrtle Beach of Michael Chestnut,
Clyde H. “Mike” Lowder, or Philip N. Render, was obtained by them while performing legislative
functions on behalf of the City of Myrtle Beach.
5. In supplemental discovery responses Plaintiffs stated the witnesses will be called to testify about the
facts and circumstances in this case, but more specifically, their agreement to pay $10 million in
profit to alleged “nuisance” businesses in December 2021. In addition, Plaintiffs state Mike Lowder
will be called to testify about his security company doing business with Noam Pyade, the owner of
the nuisance properties that Mr. Lowder agreed to pay $10 million in profit in 2021. All of Plaintiffs
alleged injuries occurred in 2017. The testimony Plaintiffs seek occurred approximately four years
after the Plaintiffs alleged injuries. Such testimony is not relevant to the issues in the above
captioned lawsuit. (Exhibit B)
6. If the Court were to decide the subpoenas should not be quashed, Michael Chestnut, Jackie Hatley,
John Krajc, Clyde H. “Mike” Lowder, Philip N. Render, and Gregg Smith respectfully request that
that the Court exercise its discretion under Rule 45 FRCP to limit the subpoenas by requiring the
Plaintiffs to give each individual at least six hours’ notice of the specific time when they will be
required to appear at the trial. In addition the individuals request that they be required to attend the
trial only for such time as they are needed to testify.
7. Michael Chestnut, Jackie Hatley, John Krajc, Clyde H. “Mike” Lowder, Philip N. Render, and
2
Gregg Smith are informed and believe that Plaintiffs have served the subpoenas requiring the
witnesses to be present at trial for four days for improper purposes. They are informed and believe
they are entitled to sanctions pursuant Rule 45 FRCP.
DISCUSSION
LEGISLATIVE PRIVILEGE
The Fourth Circuit, has held that “[w]hile legislative privilege is undoubtedly robust, the
Supreme Court's decisions make clear that the privilege does not absolutely protect state legislative
officials from discovery into communications made in their legislative capacity.” Benisek v. Lamone,
241 F. Supp. 3d 566, 574 (D. Md. 2017). Drawing on these principles, courts ruling on claims of
legislative privilege in redistricting cases have frequently adopted a five-factor standard that
facilitates case-by-case evaluation of the competing interests at stake. This standard, which derives
from cases on deliberative-process privilege for executive actors, requires a court evaluating a claim
of legislative privilege to take into account the relative weight of: (1) the relevance of the evidence
sought, (2) the availability of other evidence, (3) the seriousness of the litigation, (4) the role of the
municipality, as opposed to individual legislators, in the litigation, and (5) the extent to which the
discovery would impede legislative action. S.C. State Conf. of NAACP v. McMaster, 584 F. Supp. 3d
152, 161 (D.S.C. 2022).
(1) the relevance of the evidence sought.
All of the expected testimony from the named individuals comes from acts that occurred in 2021,
approximately four years after the alleged injuries occurred in the above captioned lawsuit. Such
evidence is not relevant to Plaintiffs’ claims under 42 USC §1983 or their claims for tortious
interference with a contract.
(2) the availability of other evidence.
3
Other evidence of the acts of the City of Myrtle Beach is contained in the City’s official
minutes of the council meetings where those acts occurred. A town council has the express duty
to keep minutes of its proceedings which shall be a public record. S.C.Code Ann. § 5–7–250(b)
(1976). Municipal records properly authenticated or verified are the only competent evidence of
the proceedings of the transactions of the governing body. 5 E. McQuillan, The Law of
Municipal Corporations § 14.05 (3d ed. 1989). Parol evidence cannot be admitted to explain,
enlarge, or contradict minutes of the proceeding of a town council unless the minutes are
incomplete or ambiguous. Id. § 14.07. Otherwise, parol evidence could render official minutes
uncertain and unreliable so that the minutes would fail to afford dependable evidence of the
proceedings of the municipal body. See Berkeley Elec. Co-op., Inc. v. Town of Mount Pleasant,
308 S.C. 205, 208, 417 S.E.2d 579, 581 (1992).
(3) the seriousness of the litigation
While the litigation may be serious for the individual Plaintiffs, the above captioned litigation
does not rise to the seriousness of redistricting cases where the Courts have been required to
“smoke out” the motives of state legislators accused of gerrymandering legislative districts based
on improper racial motives. See S.C. State Conf. of NAACP v. McMaster, 584 F. Supp. 3d 152
(D.S.C. 2022)
(4) the role of the municipality, as opposed to individual legislators, in the litigation,
None of the named individuals are alleged to have an individual role in the above captioned
litigation. Any acts that were done were done by the City of Myrtle Beach based on a majority
vote of the City Council. Subjective evidence of the reasons for a decision by an individual
legislator to vote is not proper for any of the issues in the above captioned lawsuit. Further,
Plaintiffs do not seek damages against any of the named individuals.
4
(5) the extent to which the discovery would impede legislative action.
Legislative privilege “guard[s] legislators from the burdens of compulsory process” and protects
their independence. The court must be wary of any intrusion which subjects legislators to
unnecessary and burdensome disclosure requirements and detracts from their representative
functions. S.C. State Conf. of NAACP v. McMaster, 584 F. Supp. 3d 152, 165 (D.S.C. 2022).
The named individuals contend the subpoenas attack their legislative independence. Further the
subpoenas subject them to unnecessary and burdensome disclosure requirements that detract
from their representative functions. Id.
SANCTIONS
Rule 45(d)(1) mandates a court to impose “an appropriate sanction—which may include lost
earnings and attorney's fees—on a party or attorney who fails to comply” with the rule's mandate that an
issuing party “must take reasonable steps to avoid imposing an undue burden or expense on a person
subject to the subpoena. Bell Inc. v. GE Lighting, LLC, No. 6:14-CV-00012, 2014 WL 1630754, at *8
(W.D. Va. Apr. 23, 2014). The named individuals contend Plaintiffs have not taken reasonable steps to
avoid imposing an undue burden on the named individuals. The subpoenas require the named
individuals to remain at court for four days waiting to learn whether they will actually be called to
testify. During that time the named individuals will lose earnings and incur unnecessary attorneys’ fees.
PRE-MOTION NOTICE
The undersigned Attorney has contacted the Plaintiffs’ attorney and has given notice of the objections of
Michael Chestnut, Jackie Hatley, John Krajc, Clyde H. “Mike” Lowder, Philip N. Render, and Gregg
Smith to the subpoenas. Plaintiffs’ attorney responded, “File your motion.” (Exhibit C)
CONCLUSION
For the reasons stated above, individuals Michael Chestnut, Jackie Hatley, John Krajc, Clyde H.
5
“Mike” Lowder, Philip N. Render, and Gregg Smith respectfully request the Court to quash Plaintiffs’
subpoenas served March 14, 2023 for a trial scheduled to begin March 20, 2023. Further, the named
individuals request the Court to enter sanctions against the Plaintiffs as the Court in its discretion deems
is appropriate. In the alternative, the named individuals request that the Court limit the conditions of the
subpoena in such a manner as to avoid imposing an undue burden on the named individuals.
March 15, 2023 S/Michael W. Battle

Michael W. Battle Fed # 1243
BATTLE LAW FIRM, LLC
Attorney for Michael Chestnut, Jackie
Hatley, John Krajc, Clyde H. “Mike”
Lowder, Philip N. Render, and Gregg
Smith
1200 Main St. Conway S.C. 29526
[email protected]

Myrtle Beach Mayor and Council Squash Motion To Compel in Superblock Takeover

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4:19-cv-02087-JD Date Filed 03/15/23 Entry Number 115 Page 1 of 6

IN THE UNITED STATES DISTRICT

Danny Group, LLC, Blazian Promotions & C.A. No. 4:19-cv-02087-JD

City of Myrtle Beach, and John Pederson,

IN RE: NOTICE OF MOTION AND

would show the following to the court:

grounds of legislative immunity and/or legislative privilege.

contracts under the South Carolina Tort Claims Act.

functions on behalf of the City of Myrtle Beach.

captioned lawsuit. (Exhibit B)

trial only for such time as they are needed to testify.

they are entitled to sanctions pursuant Rule 45 FRCP.

152, 161 (D.S.C. 2022).

(1) the relevance of the evidence sought.

interference with a contract.

(2) the availability of other evidence.

308 S.C. 205, 208, 417 S.E.2d 579, 581 (1992).

(3) the seriousness of the litigation

Plaintiffs do not seek damages against any of the named individuals.

from their representative functions. Id.

March 15, 2023 S/Michael W. Battle

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