Am. Atheists, Inc. v. Rapert, Case No. 4:19-cv-00017-KGB

Decision Date15 December 2020
Docket NumberCase No. 4:19-cv-00017-KGB
Citation507 F.Supp.3d 1057
Parties AMERICAN ATHEISTS, INC., Betty Jo Fernau, Catherine Shoshone, Robert Barringer, and Karen Dempsey, Plaintiffs v. Stanley Jason RAPERT, in His Individual and Official Capacity, Defendant
CourtU.S. District Court — Eastern District of Arkansas

Bonnie Johnson, IV, Philip E. Kaplan, Cross, Gunter, Witherspoon & Galchus, P.C., Little Rock, AR, Geoffrey T. Blackwell, Pro Hac Vice, Geoffrey Blackwell, Arlington, VA, for Plaintiffs.

Dylan L. Jacobs, Nicholas Jacob Bronni, William C. Bird, III, Arkansas Attorney General's Office, Ashley Jordan Davis, John Paul Byrd, Paul Byrd Law Firm, PLLC, Little Rock, AR, for Defendant.

ORDER

Kristine G. Baker, United States District Judge

Before the Court is the supplemental motion to dismiss filed by defendant Stanley Jason Rapert, in his individual capacity (Dkt No. 37). For the reasons below, the Court grants in part and denies in part the supplemental motion to dismiss.

I. Factual And Procedural History

Plaintiffs American Atheists, Inc. ("American Atheists"), Betty Jo Fernau, Catherine Shoshone, Robert Barringer, and Karen Dempsey (collectively, "plaintiffs") originally filed a complaint against defendant Stanley Jason Rapert, in his individual and official capacity, on October 2, 2018, in a case styled American Atheists, Inc. v. Rapert , No. 4:18-CV-00729-KGB (E.D. Ark. Jan. 4, 2019). On January 3, 2019, plaintiffs filed a notice of voluntary dismissal, and the Court dismissed the case, without prejudice, on January 4, 2019. Plaintiffs then commenced this action on January 8, 2019 (Dkt. No. 1-2).

State Senator Rapert is an Arkansas State Senator who, since 2011, has represented Arkansas State Senate District 35, which includes portions of Faulkner County and Perry County, Arkansas. Plaintiffs' complaint sets forth five causes of action related to State Senator Rapert's alleged censoring and blocking of plaintiffs on his social-media accounts. Specifically, plaintiffs allege violations of their First Amendment right to freedom of speech (Count 1), right to petition the Government for a redress of grievances (Count 2), and right to the free exercise of religion (Count 3),1 their Fourteenth Amendment right to the equal protection of the laws (Count 4), and their rights under the Arkansas Religious Freedom Restoration Act ("ARFRA"), Ark. Code Ann. § 16-123-404 (Count 5). State Senator Rapert is sued in his individual and official capacity.

On January 9, 2019, plaintiffs filed a motion for a temporary restraining order and a preliminary injunction (Dkt. No. 5). On January 14, 2019, State Senator Rapert filed a motion to dismiss the claims against him in his individual capacity (Dkt. No. 11). State Senator Rapert filed an answer in his official capacity on January 30, 2019 (Dkt. No. 21). On September 30, 2019, the Court denied plaintiffs' motion for a temporary restraining order and a preliminary injunction (Dkt. No. 27). The Court also ruled on State Senator Rapert's motion to dismiss, holding as follows:

The Court denies plaintiffs' motion for temporary restraining order and preliminary injunction (Dkt. No. 5). The Court denies State Senator Rapert's Federal Rule of Civil Procedure 12(b)(6) motion to dismiss filed in his personal capacity with respect to whether plaintiffs state claims upon which relief can be granted (Dkt. No. 11). The Court grants State Senator Rapert qualified immunity on plaintiffs' First Amendment free speech and right to petition claims to the extent those claims seek monetary damages against State Senator Rapert in his personal capacity (Dkt. No. 11). The Court directs State Senator Rapert to supplement his motion to the extent he seeks the Court's consideration on the issue of qualified immunity with respect to any but plaintiffs' First Amendment free speech and right to petition claims (Dkt. No. 11).

(Id. , at 80–81).

On November 8, 2019, plaintiffs filed a motion for entry of default as to State Senator Rapert in his individual capacity (Dkt. No. 29). On April 23, 2020, the Court determined that, based on the parties' representations in their briefs, State Senator Rapert had adopted, word-for-word, his official-capacity answer as his answer to plaintiffs' claims against him in his individual capacity and denied as moot the motion for entry of default as to State Senator Rapert in his individual capacity (Dkt. No. 35). The Court further ordered that:

if State Senator Rapert intends to move to dismiss any claims other than plaintiffs' First Amendment free speech and right to petition claims on the basis of qualified immunity, he must do so within 14 days from the entry of this Order, with the understanding that State Senator Rapert may file for summary judgment on the issue of qualified immunity at a later date consistent with the terms of this Order.

(Id. , at 4).

On May 7, 2020, State Senator Rapert filed a supplemental motion to dismiss, seeking qualified immunity on plaintiffs' remaining claims against him in his individual capacity (Dkt. No. 37). State Senator Rapert also contends that plaintiffs failed to name him in his individual capacity, that Ms. Fernau and Ms. Shoshone's claims against him are time-barred, and that American Atheists lacks standing to challenge his alleged censoring and blocking of the individual plaintiffs' social-media accounts (Id. ).2 Plaintiffs filed a response in opposition to the supplemental motion to dismiss on May 15, 2020 (Dkt. No. 38).

On May 21, 2020, State Senator Rapert filed a motion for leave to file a reply in support of his supplemental motion to dismiss (Dkt. No. 39) and attached his proposed reply brief to his motion ( Dkt. No. 39-1). For good cause shown, the Court grants the motion for leave to file a reply and directs State Senator Rapert to file his reply brief within 14 days from the entry of this Order. The Court has considered State Senator Rapert's proposed reply brief in ruling on his supplemental motion to dismiss.

II. Governing Law
A. Rule 12(b)(1) Standard

A motion to dismiss under Rule 12(b)(1) of the Federal Rules of Civil Procedure challenges the court's subject-matter jurisdiction over the case. See Johnson v. United States , 534 F.3d 958, 964 (8th Cir. 2008). Because standing is a jurisdictional question, a motion to dismiss for lack of standing is properly analyzed under Rule 12(b)(1). See Disability Support All. v. Heartwood Enters., LLC , 885 F.3d 543, 547 (8th Cir. 2018). Here, plaintiffs, as the parties seeking to establish federal jurisdiction, bear the burden of establishing, by a preponderance of the evidence, that jurisdiction exists. See DaimlerChrysler Corp. v. Cuno , 547 U.S. 332, 342, 126 S.Ct. 1854, 164 L.Ed.2d 589 (2006) ; V S Ltd. P'ship v. Dep't of Hous. & Urban Dev. , 235 F.3d 1109, 1112 (8th Cir. 2000).

In deciding a motion to dismiss for lack of subject-matter jurisdiction, the district court must distinguish between a "facial attack" and a "factual attack" on jurisdiction. See Carlsen v. GameStop, Inc. , 833 F.3d 903, 908 (8th Cir. 2016). Where, as here, a party brings a facial attack, "the court restricts itself to the face of the pleadings, and the non-moving party receives the same protections as it would defending against a motion brought under Rule 12(b)(6)." Osborn v. United States , 918 F.2d 724, 729 n.6 (8th Cir. 1990) (citations omitted). In a factual attack, in contrast, "the court considers matters outside the pleadings, and the non-moving party does not have the benefit of 12(b)(6) safeguards." Id. (citations omitted).

B. Rule 12(b)(6) Standard

A Rule 12(b)(6) motion tests the legal sufficiency of the claim or claims stated in the complaint. See Peck v. Hoff , 660 F.2d 371, 374 (8th Cir. 1981). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citing Twombly , 550 U.S. at 556, 127 S.Ct. 1955 ). Although a complaint "does not need detailed factual allegations" to survive a Rule 12(b)(6) motion to dismiss, the "[f]actual allegations must be enough to raise a right to relief above the speculative level." Twombly , 550 U.S. at 555, 127 S.Ct. 1955. Stated differently, the allegations pleaded must show "more than a sheer possibility that a defendant has acted unlawfully." Iqbal , 556 U.S. at 678, 129 S.Ct. 1937.

A court considering a motion to dismiss must accept as true all well-pleaded facts in the complaint and draw all reasonable inferences from those facts in favor of the non-moving party, here, plaintiffs. See Farm Credit Servs. of Am., FLCA v. Haun , 734 F.3d 800, 804 (8th Cir. 2013) ; Coons v. Mineta , 410 F.3d 1036, 1039 (8th Cir. 2005) ; Abels v. Farmers Commodities Corp. , 259 F.3d 910, 914 (8th Cir. 2001). However, a court need not credit conclusory allegations or "naked assertion[s] devoid of further factual enhancement."

Retro Television Network, Inc. v. Luken Commc'ns, LLC , 696 F.3d 766, 768 (8th Cir. 2012) (alteration in original) (quoting Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 ). Finally, a court ruling on a motion to dismiss under Rule 12(b)(6) may consider documents or exhibits attached to a complaint, as well as matters of public and administrative record referenced in the complaint. See Owen v. Gen. Motors Corp. , 533 F.3d 913, 918 (8th Cir. 2008) ; Quinn v. Ocwen Fed. Bank FSB , 470 F.3d 1240, 1244 (8th Cir. 2006).

In short, "[a] complaint shall not be dismissed for its failure to state a claim upon which relief can be granted unless it appears beyond a reasonable doubt that plaintiff can prove no set...

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