Miller v. City of Cincinnati

• Decision Date: 09 May 2012
• Docket Number: Case No. 1:08cv550.
• Citation: 870 F.Supp.2d 534
• Parties: Mark MILLER, et al., Plaintiffs v. CITY OF CINCINNATI, et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

870 F.Supp.2d 534

Mark MILLER, et al., Plaintiffs

v.CITY OF CINCINNATI, et al., Defendants.

Case No. 1:08cv550.

United States District Court,

S.D. Ohio,

Western Division.

May 9, 2012.

Christopher R. Finney, Cincinnati, OH, Curt Carl Hartman, Amelia, OH, for Plaintiffs.

Terrance A. Nestor, City of Cincinnati, Cincinnati, OH, Dustin Elizabeth Meek, Tachau Meek, PLC, Louisville, KY, for Defendants.

ORDER

MICHAEL R. BARRETT, District Judge.

This matter is before the Court upon Defendants' Motion to Dismiss. (Doc. 87) Plaintiffs have filed a Response in Opposition (Doc. 100), and Defendants filed a Reply (Doc. 111).

Also before the Court is Defendants' Motion for Partial Judgment on the Pleadings (Doc. 98). Plaintiffs have filed a Response in Opposition. (Doc. 115.) However, at a discovery hearing held on February 24, 2012, the Court informed Plaintiffs that the City Council Chambers and Committee Rooms A & B were not part of the pending lawsuit and not subject to discovery. Therefore, Defendants' Motion for Partial Judgment on the Pleadings (Doc. 98) is denied as moot.

I. BACKGROUND

The case was originally was filed on August 15, 2008. (Doc. 1.) Plaintiffs Mark Miller, Coalition Opposed to Additional Spending & Taxes (“COAST”) and WeDemandAVote.com claimed Defendants' unconstitutional policy, practice and custom prohibited Plaintiffs from holding a press conference and political rally in the lobby and stairs inside City Hall. In ruling upon Plaintiffs' Motion for Preliminary Injunction, this Court found that Plaintiffs had shown a likelihood of success on the merits of their claims that the City's Administrative Regulation # 5 violates Plaintiffs' First Amendment, Equal Protection, and Due Process rights. On appeal, the Sixth Circuit affirmed this Court's decision that the City's regulation violates the plaintiffs' right to free speech and that it is unconstitutionally vague. Miller v. City of Cincinnati, 622 F.3d 524 (6th Cir.2010).

Defendants now argue that COAST and WeDemandAVote.com do not have standing to bring any of its claims because they are “fictional plaintiffs.” Defendants do not direct the same challenge to the claims brought by Plaintiff Mark Miller. However, Defendants challenge the standing of all Plaintiffs to seek injunctive relief.

II. ANALYSISA. Motion to Dismiss Standard

Defendants argue that this Court lacks subject matter jurisdiction over Plaintiffs' claims and therefore the claims should be dismissed pursuant to Federal Rule 12(b)(1) and 12(h)(3). Defendants argue that the Court should apply the heightened pleading standard set forth in Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) in deciding their motion. However, the issue before the Supreme Court in Ashcroft v. Iqbal was the proper standard for deciding a Rule 12(b)(6) motion, not a motion for lack of subject matter jurisdiction under Rule 12(b)(1) or 12(h)(3). Defendants cite to an unpublished decision from the Northern District of Ohio to support their position that the heightened pleading standard applies when determining whether a plaintiff has standing to bring a claim. Scrap Yard, LLC v. City of Cleveland, 2011 WL 3900574, *9 (N.D.Ohio June 23, 2011). While the district court did apply Iqbal in that case,¹ the question of statutory standing is often confused with the question of constitutional and prudential standing. See Roberts v. Hamer, 655 F.3d 578, 580–81 (6th Cir.2011). As the Sixth Circuit has explained, statutory standing is the question of:

“whether this plaintiff has a cause of action under the statute.” Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 97 n. 2, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). The question is closely related to the merits inquiry (oftentimes overlapping it) and is analytically distinct from the question whether a federal court has subject-matter jurisdiction to decide the merits of a case. See id.;Davis [ v. Passman ], 442 U.S. at [228] 239 n. 18, 99 S.Ct. 2264 [60 L.Ed.2d 846 (1979) ] (distinguishing the concepts of Article III standing and cause of action and noting that “[w]hether petitioner has asserted a cause of action ... dependsnot on the quality or extent of her injury,” as does the inquiry under Article III standing, “but on whether the class of litigants of which petitioner is a member may use the courts to enforce the right at issue”).

Id. Accordingly, “[w]here a plaintiff lacks statutory standing to sue, her claim should be dismissed for failure to state a claim upon which relief can be granted, not for lack of subject-matter jurisdiction.” Id. at 581 (citing Traverse Bay Area Intermediate Sch. Dist. v. Mich. Dep't of Educ., 615 F.3d 622, 626 (6th Cir.2010)).

Here, Defendants ostensibly argue that COAST and WeDemandAVote.com are unable to bring claims because they lack associational standing. Resolving the issue of associational standing does include an analysis of the requirements of Article III. See United Food and Commercial Workers Union Local 751 v. Brown Group, Inc., 517 U.S. 544, 555, 116 S.Ct. 1529, 134 L.Ed.2d 758 (1996). Accordingly, a motion based on lack of associational standing would be decided on a motion to dismiss for lack of subject-matter jurisdiction. See Coal Operators and Associates, Inc. v. Babbitt, 291 F.3d 912, 915 (6th Cir.2002) (noting that while the district court elected to dismiss non-profit corporation's claims based upon the failure to state a claim, “it need not have reached this substantive question because plaintiffs failed to establish that they have standing to sue, which is a jurisdictional requirement.”).²

However, what Defendants are truly arguing is that COAST and WeDemandAVote.com lack the capacity to sue. Capacity and standing are two distinct legal questions. Tri–Med Finance Co. v. National Century Financial Enterprises, Inc., 2000 WL 282445, *4 (6th Cir. Mar. 6, 2000). Because capacity to sue is not jurisdictional, it should not be analyzed as part of a motion to dismiss for lack of jurisdiction. See Certain Interested Underwriters at Lloyd's, London, England v. Layne, 26 F.3d 39, 43 n. 1 (6th Cir.1994) (explaining that Rule 17(a) is not jurisdictional and relates only to the proper parties and the capacity to sue); Srock v. U.S., 2006 WL 2460769, 4 n. 6 (E.D.Mich. Aug. 23, 2006) (rejecting attempt to classify motion challenging capacity to sue as one brought under Federal Rule 12(b)(1)).

Finally, Defendants argue that all Plaintiffs lack the standing to seek injunctive relief under City of Los Angeles v. Lyons, 461 U.S. 95, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983), which requires a plaintiff to demonstrate that he or she faces a real and immediate threat of the same injury in the future. This question of standing is jurisdictional, and is therefore decided as part of a motion to dismiss for lack of jurisdiction.

For the sake of completeness, the Court will address all three arguments and apply the proper standard of review, which are as follows:

In reviewing a motion to dismiss for failure to state a claim, this Court must “construe the complaint in the light most favorable to the plaintiff, accept its allegations as true, and draw all reasonable inferences in favor of the plaintiff.” Bassett v. National Collegiate Athletic Ass'n, 528 F.3d 426, 430 (6th Cir.2008) (quoting Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir.2007)). “[T]o survive a motion to dismiss a complaint must contain (1) ‘enough facts to state a claim to relief that is plausible,’ (2) more than ‘a formulaic recitation of a cause of action's elements,’ and (3) allegations that suggest a ‘right to relief above a speculative level.’ ” Tackett v. M & G Polymers, USA, LLC, 561 F.3d 478, 488 (6th Cir.2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 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.” Iqbal, 129 S.Ct. at 1949–50. Although the plausibility standard is not equivalent to a “ ‘probability requirement,’ ... it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. at 1949 (quoting Twombly, 550 U.S. at 556, 127 S.Ct. 1955).

Challenges to subject-matter jurisdiction under 12(b)(1) “come in two varieties: a facial attack or a factual attack.” Carrier Corp. v. Outokumpu Oyj, 673 F.3d 430, 440 (6th Cir.2012) (quoting Gentek Bldg. Prod., Inc. v. Sherwin–Williams Co., 491 F.3d 320, 330 (6th Cir.2007)). “Under a facial attack, all of the allegations in the complaint must be taken as true, much as with a Rule 12(b)(6) motion.” Id. Therefore, for a complaint to allege jurisdiction adequately, “it must contain non-conclusory facts which, if true, establish that the district court had jurisdiction over the dispute.” Id. (citing O'Bryan v. Holy See, 556 F.3d 361, 375–76 (6th Cir.), cert. denied, ––– U.S. ––––, 130 S.Ct. 361, 175 L.Ed.2d 27 (2009)). However, under a factual attack, a court “can actually weigh evidence to confirm the existence of the factual predicates for subject-matter jurisdiction.” Id. (citing RMI Titanium Co. v. Westinghouse Elec. Corp., 78 F.3d 1125, 1134 (6th Cir.1996)).

B. Associational standing

The Court notes that the Sixth Circuit has already found that COAST and WeDemandAVote.com have standing to sue in their own right because it found that these Plaintiffs have suffered an injury-in-fact. Miller v. City of Cincinnati, 622 F.3d at 531–32 (concluding that “the plaintiffs suffered an injury when the City denied their request for access and told them to find a sponsor.”). The law of the case doctrine precludes reconsideration of an issue already decided in a previous stage of litigation, either explicitly or by necessary inference from the disposition. McKenzie v. BellSouth Telecomms., 219 F.3d 508, 513 (6th Cir.2000) (citing United States v. Moored, 38 F.3d 1419, 1421–22 (6th Cir.1994))....