Brereton v. Bountiful City Corp.

• Citation: 434 F.3d 1213
• Decision Date: 26 January 2006
• Docket Number: No. 05-4067.,05-4067.
• Parties: B.L. BRERETON, Plaintiff-Appellant, v. BOUNTIFUL CITY CORPORATION, a government entity; Barbara Holt, Bountiful City Councilwoman; John Pitt, Bountiful City Councilman; Richard Higginson, Bountiful City Councilman; Fred Moss, Bountiful City Councilman; Tom Tolman, Bountiful City Councilman; Paul Rapp, Bountiful City Chief of Police; J.C. Ynchausti, Bountiful City Prosecutor; Joe Johnson, Bountiful City Mayor, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

434 F.3d 1213

B.L. BRERETON, Plaintiff-Appellant, v. BOUNTIFUL CITY CORPORATION, a government entity; Barbara Holt, Bountiful City Councilwoman; John Pitt, Bountiful City Councilman; Richard Higginson, Bountiful City Councilman; Fred Moss, Bountiful City Councilman; Tom Tolman, Bountiful City Councilman; Paul Rapp, Bountiful City Chief of Police; J.C. Ynchausti, Bountiful City Prosecutor; Joe Johnson, Bountiful City Mayor, Defendants-Appellees.

No. 05-4067.

United States Court of Appeals, Tenth Circuit.

January 26, 2006.

Submitted on the briefs:^*

Brian M. Barnard, James L. Harris, Jr., Utah Legal Clinic, Salt lake City, UT, for Appellant.

David L. Church, Blaisdell and Church, Salt Lake City, UT; Russell L. Mahan, Bountiful City Attorney, Bountiful, UT, for Appellees.

Before TYMKOVICH, PORFILIO, and BALDOCK, Circuit Judges.

PORFILIO, Circuit Judge.

B.L. Brereton brought this complaint challenging a Bountiful City, Utah parking ordinance. The district court concluded that Mr. Brereton lacked standing to pursue the action. It dismissed Mr. Brereton's complaint with prejudice, denied his motion for new trial, and denied him leave to file a second amended complaint. On appeal, Mr. Brereton challenges the "with prejudice" aspect of the dismissal. We affirm the district court's judgment insofar as it dismisses the action, but remand to the district court to modify the dismissal to be without prejudice.

FACTS

At the time Mr. Brereton filed his complaint, the challenged ordinance read in pertinent part as follows:

It is unlawful to park in any parking lot or on other property owned by the City any car, truck, motorcycle, motor home, trailer, boat or other vehicle of any description for the purpose of advertising or of selling that vehicle.

It is unlawful to park in any private parking lot or on other private property any car, truck, motorcycle, motor home, trailer, boat or other vehicle of any description for the purpose of advertising or of selling that vehicle, without the consent of the owner.

Bountiful City Code 13-1-103(4)(a), (b).

In his complaint, Mr. Brereton asserted that he was a resident of Salt Lake City, Utah, who owned a motor vehicle that he desired to sell. He had determined that an effective manner in which to sell his vehicle would be to place a "For Sale" sign in the vehicle window containing truthful information about the vehicle. He had refrained from parking and/or operating the vehicle in Bountiful City with such a sign in the window, however, even though he wished to do so, because he feared prosecution under Bountiful City Code 13-1-103. Mr. Brereton further asserted that although he had driven his vehicle in other Utah cities with the "For Sale" sign in the window, he had removed the sign when driving and parking in Bountiful City.² His complaint charged that the ordinance violated the First Amendment and the Utah Constitution.

Shortly after Mr. Brereton served his complaint on the defendants, the City amended the first of the two quoted subsections to read as follows:

It is unlawful to park in any parking lot or on other property (not including public streets) owned by the City any car, truck, motorcycle, motor home, trailer, boat or other vehicle of any description for the purpose of advertising or of selling that vehicle.

Bountiful City Code 13-1-103(4)(a) (as amended by Bountiful City Ordinance No.2004-19, Oct. 12, 2004). Mr. Brereton then filed an amended complaint that set forth essentially the same facts in his original complaint, adding the fact of the amendment to the ordinance, which (the amended complaint opined) had not cured its constitutional infirmities.

The defendants filed a response to the complaint in which they asserted, among other things, that Mr. Brereton lacked standing to bring the action. In their response to his motion for preliminary injunction, they again denied that Mr. Brereton had standing to bring both a facial or an "as applied" challenge to the ordinance. The district court agreed. Characterizing Mr. Brereton's challenge as a "pre-enforcement facial challenge to a regulation of commercial speech," Aplt.App. at 87, the district court found that Mr. Brereton had failed to demonstrate a genuine threat that the allegedly unconstitutional ordinance would be enforced against him. It dismissed the case in its entirety for lack of jurisdiction.

Mr. Brereton moved for a new trial under Fed.R.Civ.P. 52, 59 and 60. He asserted that the action had been improperly dismissed because "standing was never briefed by either party." Aplt.App. at 95-96. He further asserted that the dismissal should have been without prejudice and that he should have been given leave to amend his complaint. The district court denied Mr. Brereton's motion, and he appealed.

ANALYSIS

We review standing questions de novo. Higganbotham v. Okla. ex rel. Okla. Transp. Com'n, 328 F.3d 638, 641 (10th Cir.2003). To the extent that Mr. Brereton asserts that the district court did not give him adequate notice concerning the standing issue, we reject this claim because the facts in the record show that he did receive adequate notice that standing was at issue.

We turn, then, to the primary issue in this case: whether the dismissal the district court entered should have been without prejudice. Because this is an issue that has produced some confusion within the bench and bar, a careful reiteration of the applicable principles may be helpful.

A longstanding line of cases from this circuit holds that where the district court dismisses an action for lack of jurisdiction, as it did here, the dismissal must be without prejudice. See, e.g., Albert v. Smith's Food & Drug Ctrs., Inc., 356 F.3d 1242, 1249 (10th Cir.2004); Martinez v. Richardson, 472 F.2d 1121, 1126 (10th Cir.1973) ("It is fundamental ... that a dismissal for lack of jurisdiction is not an adjudication of the merits and therefore ... must be without prejudice."). See also 9 Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 2373, at 406 (2d ed.1995). Since standing is a jurisdictional mandate, a dismissal with prejudice for lack of standing is inappropriate, and should be corrected to a dismissal without prejudice. County of Mille Lacs v. Benjamin, 361 F.3d 460, 464-65 (8th Cir.), cert. denied, 543 U.S. 956, 125 S.Ct. 408, 454, 160 L.Ed.2d 318 (2004).

This rule has deep common law roots, and is preserved now in Fed.R.Civ.P. 41(b). See Costello v. United States, 365 U.S. 265, 285-86, 81 S.Ct. 534, 5 L.Ed.2d 551 (1961). Rule 41(b) provides as follows:

(b) Involuntary Dismissal: Effect Thereof. For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against the defendant. Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join a party under Rule 19, operates as an adjudication upon the merits. (emphasis added).

Courts have acknowledged two important analytical reasons for requiring that a dismissal on jurisdictional grounds be without prejudice. First, dismissal with prejudice is inappropriate because such a dismissal may improperly prevent a litigant from refiling his complaint in another court that does have jurisdiction. Gold v. Local 7 United Food & Comm'l Workers, 159 F.3d 1307, 1311 (10th Cir.1998). Second, and perhaps more essentially, once a court determines it lacks jurisdiction over a claim, it perforce lacks jurisdiction to make any determination of the merits of the underlying claim. Id. (applying Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998)); Frederiksen v. City of Lockport, 384 F.3d 437, 438 (7th Cir.2004).³

The continuing validity of the first of these principles has recently been qualified, if not disavowed, by a panel of this court. See Styskal v. Weld County Bd. of County Comm'rs, 365 F.3d 855 (10th Cir.2004). Styskal, while not purporting to overrule our prior authority on this question, nevertheless concludes that the Supreme Court's opinion in Semtek International Inc. v. Lockheed Martin Corp., 531 U.S. 497, 121 S.Ct. 1021, 149 L.Ed.2d 32 (2001) has effectively undermined the preclusion rationale that supported the "without prejudice" requirement. Styskal, 365 F.3d at 858 ("The premise underlying these decisions is that a dismissal of a claim with prejudice necessarily has claim-preclusive effects in other jurisdictions.... That premise, however, was recently rejected by the United States Supreme Court [in Semtek]."). Because the broad language in Styskal concerning Semtek's effect on jurisdictional dismissals has the potential to create some confusion, we take this opportunity to clarify our law on this subject.

To begin with, Semtek must be read within its factual and analytical context. The facts underlying the Supreme Court's decision in Semtek were these. The District Court for the Central District of California had entered a dismissal of an action time-barred under California's two-year statute of limitations "on the merits and with prejudice." Semtek, 531 U.S. at 499, 121 S.Ct. 1021. The plaintiff attempted to re-file the action in Maryland state court, where it was not time-barred under that state's more generous three-year limitations statute. The Maryland Court of Special Appeals found that the California federal court dismissal "on the merits" barred the complaint from proceeding in state court. The issue before the Supreme Court was "whether the claim-preclusive effect of a federal judgment dismissing a diversity action on statute-of-limitations grounds is determined by the law of the State in which the federal court sits." Id.

The defendant in Semtek contended that Rule 41(b), which provides the default rule in federal court for...