Case 1:07-cv-00018-MP-GRJ Document 253 Filed 01/26/13 Page 1 of 11

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA GAINESVILLE DIVISION AMERICAN CIVIL LIBERTIES UNION OF FLORIDA, INC.; Plaintiff, v. DIXIE COUNTY FLORIDA, Defendant. ____________________________________/ CASE NO. 1:07-cv-00018-MP-GRJ

NOTICE OF LACK OF SUBJECT MATTER JURISDICTION

AND

MOTION TO DISMISS
Plaintiff gives notice to the Court that there is currently a lack of subject matter jurisdiction. Based upon changed circumstances, plaintiff has concluded that it lacks standing to continue pursing permanent injunctive relief in this action. Because standing is an element of subject matter jurisdiction, 1 plaintiffs lack of current standing deprives this Court of jurisdiction and the case must be dismissed. See Fed.R.Civ.P. 12(h)(3) (Lack of Subject-Matter Jurisdiction. If the court

See, e.g., Dermer v. Miami-Dade Cnty., 599 F.3d 1217, 1220 (11th Cir. 2010) (treating standing as an Article III case or controversy element); Elend v. Basham, 471 F.3d 1199, 1204 (11th Cir. 2006) (Standing and ripeness present the threshold jurisdictional question of whether a court may consider the merits of a dispute.).
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determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.) (emphasis in original). I. HISTORY OF THE CASE. This action challenges the placement of a five-foot-tall, six-ton granite monument standing alone on the top center stair of the Dixie County Courthouse, which is the seat of local government. It is not part of a broader display. The monolith features not only the Ten Commandments, but also a proselytizing appeal in letters at least twice the size of the Commandments to LOVE GOD AND KEEP HIS COMMANDMENTS. The case was filed by the ACLU of Florida based on its organizational standing to represent the interest of its members. See, e.g., Doe v. Stincer, 175 F.3d 879, 882 (11th Cir. 1999) (It has long been settled that an organization has standing to sue to redress injuries suffered by its members without a showing of injury to the association itself and without a statute explicitly permitting associational standing.). Because Establishment Clause plaintiffs are routinely ostracized, harassed, and threatened in retaliation for asserting their constitutional rights, no individual member was named as a plaintiff. The Supreme Court has firmly held that organizations like the ACLU have standing to assert the rights of their members. In general, an association has standing to bring suit on behalf of its members when: (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organizations purpose; and (c) neither the claim

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asserted nor the relief requested requires the participation of individual members in the lawsuit. Hunt v. Wash. State Apple Advertising Comm., 432 U.S. 333, 343 (1977). As emphasized by the Eleventh Circuit, These are the sole requirements. Accordingly, under Hunt, an association may bring suit on behalf of its members or constituents despite the fact that individual members have not actually brought suit themselves. Nor must the association name the members on whose behalf suit is brought. As we have stated, neither unusual circumstances, inability of individual members to assert rights nor an explicit statement of representation are requisites. Stincer, 175 F.3d at 882 (citing Church of Scientology v. Cazares, 638 F.2d 1272, 1279 (5th Cir. 1981)). 2 For purposes of discovery, however, the ACLU of Florida did identify a member, John Doe, 3 upon whom it based organizational standing. This Court

The Eleventh Circuit drove this point home in rejecting any requirement that a specific individual harmed be named by the organization:
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Moreover, under Article IIIs established doctrines of representational standing, we have never held that a party suing as a representative must specifically name the individual on whose behalf the suit is brought.... See Cazares, 638 F.2d at 1278 ([T]he requisite for representational standing ... is not necessarily an explicit statement of representation but a close nexus between the organization and its members and an allegation of injury to its members as a result of the action) (citations omitted); Congress of Racial Equality v. Douglas, 318 F.2d 95, 102 (5th Cir.1963) (upholding right of civil rights organization to assert the constitutional rights of its members despite the fact that pleadings did not seek relief on behalf of any specific member). As these cases hold, it is enough for the representative entity to allege that one of its members or constituents has suffered an injury that would allow it to bring suit in its own right. Doe v. Stincer, 175 F.3d at 884-5. 3 An order was entered requiring that a pseudonym be used to identify any of Plaintiffs members upon which standing is based . Doc. 31.

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determined that John Doe had standing and, consequently, that the ACLU of Florida also had standing. Doc. 63. Final judgment was entered holding that Dixie Countys display of the monument on its courthouse steps violated the Establishment Clause of the First Amendment. Doc. 151. See also doc. 150 (Order granting summary judgment to Plaintiff). Dixie County appealed the final judgment. On appeal, the Eleventh Circuit vacated that judgment, concluding that there was an inconsistency between John Does deposition testimony and his declaration, which the district court was required to resolve before summary judgment could be entered. Am. Civil Liberties Union of Fla., Inc. v. Dixie County, 690 F.3d 1244, 1249 (11th Cir. 2012). The Eleventh Circuit directed: we vacate the district courts grant of summary judgment on the merits and remand to the district court to hold an evidentiary hearing and determine what testimony to credit. Id. at 1250. No date for an evidentiary hearing has been set. II. CHANGED CIRCUMSTANCES HAVE LED TO A LACK OF JURISDICTION. John Doe stands by his original declaration that, as of October 2007, but for the monument, he and his wife would have continued looking for property and would have resumed his search for property if the monument were removed. 4

See doc. 52 (filed under seal) at 18, 14: My wife and I remain interested in purchasing property in Florida on which we could live in an RV connected to a power supply and septic tank. Were it not for the presence of the Monument on the Dixie County Courthouse steps, we would have continued to look for such property in Dixie County after January of this year and we would do so again immediately if the Monument were removed. See also doc. 63 at 8.
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However, as explained in John Does attached supplemental declaration, a recent change in circumstances has prompted Doe and his wife to reconsider their previously held plans and intentions. Specifically, John Doe recently learned that a revised permitting process will limit the number and location of properties on which RVs may be placed. And more troubling for Doe and his wife, the revised permitting process would require John Doe to publicly advertise his request for a permit. The Does are fearful that, because it is common knowledge that they were seeking property for the purpose of living in their RV, the new permitting requirements will lead to their identities being discovered and make them targets for physical violence and threats or harm to their property. 5 See Supplemental Declaration attached hereto, 7. With these new requirements and accompanying fears for their safety, John Doe and his wife regrettably concluded this past week that, even if the monument is removed, they are very unlikely to return to Dixie County to search for property. Id. at 8. It is clear from this conclusion that John Doe would now lack standing to seek permanent injunctive relief. See, e.g., Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). Consequently, the ACLU of Florida now lacks standing to continue seeking permanent injunctive relief.

John Doe is also concerned that his identity could be revealed publicly and harm come to him and his wife should this Court grant defendants motion to lift the protective order. Supp. Dec. 7. Given this motion to dismiss and plaintiffs prior opposition to defendants request, there is no reason to grant defendants motion (doc. 236).
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Thus, there is no need for an evidentiary hearing and this case must now be dismissed for lack of subject matter jurisdiction. See Fed.R.Civ.P. 12(h)(3). See also, e.g., Dermer v. Miami-Dade Cnty., 599 F.3d at 1220 (standing is an Article III case or controversy element); Elend v. Basham, 471 F.3d at 1204 (Standing and ripeness present the threshold jurisdictional question of whether a court may consider the merits of a dispute.). In conferring with defendants counsel regarding this motion, it is our understanding that, while defendant does not oppose dismissal, it insists that a dismissal be with prejudice and the payment of costs. For the reasons set forth below, that is not the law. III. A DISMISSAL FOR LACK OF STANDING IS WITHOUT PREJUDICE. A dismissal for lack of subject matter jurisdiction must be without prejudice: Because standing is jurisdictional, a dismissal for lack of standing has the same effect as a dismissal for lack of subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1). Cone Corp. v. Fla. Dept of Transp., 921 F.2d 1190, 1203 n. 42 (11th Cir. 1991). A dismissal for lack of subject matter jurisdiction is not a judgment on the merits and is entered without prejudice. Crotwell v. Hockman-Lewis Ltd., 734 F.2d 767, 769 (11th Cir. 1984).). Stalley ex rel. U.S. v. Orlando Regl Healthcare Sys., Inc., 524 F.3d 1229, 1232 (11th Cir. 2008). Indeed, where dismissal is for lack of subject matter jurisdiction, the Court cannot adjudicate the merits of the claim or dismiss the claim with prejudice. See Ga. Advocacy Office, Inc. v. Camp, 172 F.3d 1294, 1299 (11th Cir. 1999). See also, e.g., Boda v. United States, 698 F.2d 1174, 1177 n.4 (11th Cir. 1983) (Where dismissal can be based on lack of subject matter jurisdiction and failure to state a

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claim, the court should dismiss on only the jurisdictional grounds. This dismissal is without prejudice.) (emphasis added); DiMaio v. Democratic Natl Comm., 520 F.3d 1299, 1300, 1303 (11th Cir. 2008) (affirming the dismissal of a complaint for lack of subject matter jurisdiction and construing the dismissal, which was silent as to prejudice, as a dismissal without prejudice); Crotwell v. Hockman-Lewis Ltd., 734 F.2d 767, 769 (11th Cir. 1984) (changing a dismissal with prejudice to a dismissal without prejudice on the basis that the court lacked subject matter jurisdiction over the action and hence had no power to render a judgment on the merits); Hitt v. City of Pasadena, 561 F.2d 606, 608 (5th Cir. 1977) ([A] dismissal on jurisdictional grounds alone is not on the merits and permits the plaintiff to pursue his claim in the same or in another forum). 6 Similarly, as this action should be dismissed for want of federal jurisdiction under Fed.R.Civ.P. 12(h)(3), conditions that may be appropriate under Fed.R.Civ.P. 41(a)(2) are not within the Courts discretion. See Wilkinson v. D.M. Weatherly Co., 655 F.2d 47, 49 (5th Cir. 1981). IV. NO COSTS SHOULD BE AWARDED. Plaintiff recognizes that the Court has the authority and discretion to award costs. 7 See 28 U.S.C. 1919. But Fed.R.Civ.P. 54(d)(1), which states that costs

Decisions of the former Fifth Circuit decided prior to October 1, 1981, are binding in the Eleventh Circuit. Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc). 7 Plaintiff notes that, independent of this motion, it offered to reimburse defendants counsel for any penalty assessed by an airline for the planned deposition of John Doe in North Carolina. Because defendant would not agree to
6 (footnote continued )

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should be allowed to the prevailing party, is inapplicable to the issue of costs under 1919. See Ali v. Prestige Window & Door Installation, LLC, 626 F.Supp.2d 1259, 1260 (S.D. Fla. 2009). There is no presumption that costs should be awarded. Otay Land Co. v. United Enterprises Ltd., 672 F.3d 1152, 1157 (9th Cir. 2012). The statutory language alone gives the Court leeway to award costs or not award costs as it sees fit. Ali, 626 F.Supp.2d at 1262. As observed by the court in Ali, [t]here are few published instances of costs being awarded within the Eleventh Circuit under 28 U.S.C. 1919 . Id. at 1261. But those cases uniformly agree that an award is discretionary and is independent of Rule 54(d). Id. at 1262. See also Ericsson GE Mobile Communications, Inc. v. Motorola, 179 F.R.D. 328, 334 (N.D. Ala. 1998) ([U]nlike costs awarded under Rule 54, costs awarded under 28 U.S.C. 1919 are not subject to a presumption that they shall be awarded to a prevailing party. Rather, this Courts authority to even consider the awarding of costs in cases dismissed for want of jurisdiction is rooted in Section 1919 for the common law forbade any such award by courts.) (quoting Edward W. Gillen Co. v. Hartford Underwriters Ins. Co., 166 F.R.D. 25 (E.D. Wis. 1996) (citations omitted)). As explained in detail in Motorola, The word justice is an elongation of the word just. Justice and fairness have a close kinship. Thus, the sole question before the court in this case can be restated simply as What is fair here? In convoluted fashion, the question can be framed as Would justice be served by taxing all of two defendants very sizeable litigation costs
( footnote continued)

cancel or postpone the deposition currently scheduled for February 12, 2013, despite notice of plaintiffs intention to file this motion to dismiss, plaintiff will file a separate motion for a protective order to cancel the deposition.

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against a plaintiff simply because the trial court was found never to have had jurisdiction in the first place, even though plaintiff won a pyrrhic victory on the merits, and even though the ultimate, appellateordered dismissal was necessarily without prejudice so that plaintiff can still file suit in a court of competent jurisdiction, where all parties would be able to use all of the discovery materials obtained during their abortive expedition through federal court, including an interlocutory trip to the Supreme Court of Alabama for answers to important certified questions? 179 F.R.D. at 331. Key here is that the bulk of litigation costs incurred by Dixie County involved discovery costs on the merits. 8 Hence, those costs should not be awarded defendant. See, e.g., Otay Land Co., 672 F.3d at 1157 (Nor should costs be presumed just solely because they were necessarily incurred.). Moreover, this is not a case in which plaintiff itself took steps that deprived the Court of jurisdiction. The present lack of jurisdiction is the result of changed circumstances with regard to one of its members, and those changed circumstances were in part attributable to the Countys changed permitting process and effort to lift the order protecting the identity of plaintiffs member, John Doe, from the public. Finally, the claim sought to protect an important and hallowed First Amendment principle: the separation of church and state. Given these factors, justice does not require the payment of any costs in this action.

It is, of course, difficult to anticipate all costs that could be claimed by defendant. Should the Court determine that it will consider some costs, plaintiff urges the Court to direct defendant to move for costs limited to the standing issue with appropriate documentation and permit plaintiff to respond to any claim for costs.
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V.

CONCLUSION. For the reasons set forth above, this case should be dismissed without

prejudice for lack of subject matter jurisdiction with each party to bear its own costs. Respectfully submitted, /s/ Randall C. Marshall Randall C. Marshall Florida Bar Number: 181765 ACLU Foundation of Florida, Inc. 4500 Biscayne Blvd Ste 340 Miami, FL 33137-3227 (786) 363-2700 (786) 363-1108 (fax) rmarshall@aclufl.org Daniel Mach Heather L. Weaver American Civil Liberties Union Foundation Program on Freedom of Religion and Belief 915 15th Street, NW, 6th Floor Washington, DC 20005 Tel: (202) 675-2330 Fax: (202) 546-0738 dmach@aclu.org hweaver@aclu.org COUNSEL FOR PLAINTIFF CERTIFICATE OF CONFERENCE Pursuant to N.D. Fla. Loc. R. 7.1(B), the parties conferred in a good faith effort to resolve by agreement the issues raised but could not agree on the relief sought by this motion. /s/ Randall C. Marshall

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CERTIFICATE OF SERVICE I certify that the foregoing document is being filed electronically on January 26, 2013, using the Courts ECF system, which automatically serves counsel of record through electronic mail. /s/ Randall C. Marshall