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Three Expo Events L.L.C. v. City of Dallas, Texas

United States District Court, N.D. Texas, Dallas Division

May 11, 2017

THREE EXPO EVENTS, L.L.C., Plaintiff,
v.
CITY OF DALLAS, TEXAS, Defendant.

          MEMORANDUM OPINION AND ORDER

          SIDNEY A. FITZWATER, UNITED STATES DISTRICT JUDGE

         Defendant City of Dallas, Texas (the “City”) moves under Fed.R.Civ.P. 12(b)(1) to dismiss this civil action by plaintiff Three Expo Events, L.L.C. (“Three Expo”) for lack of standing. Three Expo opposes the City's motion and moves for leave to file a second amended complaint after the court-ordered deadline. For the reasons that follow, the court denies Three Expo's motion, grants the City's motion, and dismisses this lawsuit without prejudice for lack of standing.

         I

         Because this case is the subject of a prior memorandum opinion and order, see Three Expo Events, L.L.C. v. City of Dallas, Tex., 182 F.Supp.3d 614 (N.D. Tex. 2016) (Fitzwater, J.) (“Three Expo I”), the court will recount only the background facts and procedural history that are pertinent to this decision.

         Three Expo is an event promoter that, along with its affiliates, has for the past decade staged conventions throughout the country “with erotic, but non-obscene messages.” Am. Compl. ¶ 1. In a declaration filed early in this case, Three Expo's director, Jeffrey Handy (“Handy”), explained that

[i]t is the standard business practice for Three Expo Events, L.L.C. to be the underlying management company for the various conventions conducted throughout the country while a separate ownership entity (e.g., Exotica Miami, Exotica Chicago or Exotica Dallas) is created to own the particular event.

P. 3/23/17 Br. 4 (quoting P. 3/23/17 App. 16). During Three Expo's Rule 30(b)(6) deposition, Handy testified that Three Expo “never enters into contracts with convention centers or local facilities in any location for any of the events, ” and that it “never intends to at all in the future.” D. 3/3/17 App. 45.

         In January 2015, Handy, on behalf of an entity named “Exotica Texas, LLC, ”[1] entered into a contract with the City (“2015 Contract”) for a for a three-day exposition called “Exxxotica, ” to take place at the City's Kay Bailey Hutchison Convention Center (“Convention Center”) in August 2015. The event took place as scheduled. Shortly afterward, Handy advised the Convention Center that he wanted to schedule a similar convention for 2016. Convention Center staff provided Handy several tentative dates for 2016, Handy indicated that his preferred dates were May 20-22, 2016, and he asked to be penciled in for those dates. On January 19, 2016 the Convention Center advised Three Expo that it was still working on getting a contract together for the Exxxotica event to be held in May. On February 10, 2016, however, the Dallas City Council (“City Council”) passed Resolution No. 160308 (the “Resolution”), which provides:

WHEREAS, Three Expo Events, LLC requests to contract with the City to hold a three-day adult entertainment expo at the Dallas Convention Center; Now, Therefore,
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF DALLAS:
Section 1. That the City Council directs the City Manager to not enter into a contract with Three Expo Events, LLC, for the lease of the Dallas Convention Center.
Section 2. That this resolution shall take effect immediately from and after its passage in accordance with the provisions of the Charter of the City of Dallas, and it is accordingly so resolved.

Compl. Ex. 1 (bold font omitted; emphasis added).

         On February 24, 2016 Three Expo filed this lawsuit against the City.[2] In its amended complaint, Three Expo brings claims under 42 U.S.C. § 1983, alleging that the City violated Three Expo's free speech rights under the First and Fourteenth Amendments, that the City violated Three Expo's equal protection rights under the Fourteenth Amendment, and that the Resolution is an unconstitutional bill of attainder. Three Expo seeks damages and an injunction that, inter alia, would prohibit the City from enforcing the Resolution against Three Expo and direct the City “to enter into a contract with [Three Expo] for the planned 2016 convention.” Am. Compl. at 19-20.

         After denying Three Expo's motion for a preliminary injunction, see Three Expo I, 182 F.Supp.3d at 633, the court entered a scheduling order (“Scheduling Order”) that set June 13, 2016 as the deadline for filing motions for leave to amend pleadings. On January 11, 2017 Three Expo moved for partial summary judgment on liability, declaratory judgment, and injunctive relief. The City moved for summary judgment on March 3, 2017.[3] That same day, the City filed a motion to dismiss Three Expo's amended complaint under Rule 12(b)(1), contending that Three Expo lacks standing to sue the City. Three Expo opposes the City's motions. It also filed, on March 22, 2017, an opposed motion for leave to file a second amended complaint that would add Exotica Dallas, L.L.C. (“Exotica Dallas”) as a plaintiff.

         II

         The court first considers the City's motion to dismiss under Rule 12(b)(1) for lack of standing.

         A

         “[T]he requirement that a claimant have ‘standing is an essential and unchanging part of the case-or-controversy requirement of Article III.'” Davis v. Fed. Election Comm'n, 554 U.S. 724, 733 (2008) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)). Standing “involves both constitutional limitations on federal-court jurisdiction and prudential limitations on its exercise.” Warth v. Seldin, 422 U.S. 490, 498 (1975).

         It is well-settled that “the irreducible constitutional minimum of standing contains three elements.” Lujan, 504 U.S. at 560. These elements are (1) an injury-in-fact that is concrete and actual or imminent, not hypothetical; (2) a fairly traceable causal link between the injury and the defendant's actions; and (3) that the injury will likely be redressed by a favorable decision. See, e.g., Bennett v. Spear, 520 U.S. 154, 167 (1997); Little v. KPMG LLP, 575 F.3d 533, 540 (5th Cir. 2009). To obtain injunctive relief, a plaintiff must be “likely to suffer future injury.” City of L.A. v. Lyons, 461 U.S. 95, 105 (1983). “Past exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief[.]” O'Shea v. Littleton, 414 U.S. 488, 495 (1974). The threat of future injury to the plaintiff “must be both real and immediate, not conjectural or hypothetical.” Lyons, 461 U.S. at 102 (quotation marks omitted).

         Prudential standing, by contrast, does not emanate from the Constitution, and it instead “embodies ‘judicially self-imposed limits on the exercise of federal jurisdiction.'” Cibolo Waste, Inc. v. City of San Antonio, 718 F.3d 469, 474 (5th Cir. 2013) (quoting Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 11 (2004)). The doctrine asks

whether a plaintiff's grievance arguably falls within the zone of interests protected by the statutory provision invoked in the suit, whether the complaint raises abstract questions or a generalized grievance more properly addressed by the legislative branch, and whether the plaintiff is asserting his or her own legal rights and interests rather than the legal rights and interests of third parties.

Ass'n of Cmty. Orgs. for Reform Now v. Fowler, 178 F.3d 350, 363 (5th Cir. 1999).

         B When challenging subject matter jurisdiction under Rule 12(b)(1), a party can make a facial attack or a factual attack. See Paterson v. Weinberger, 644 F.2d 521, 523 (5th Cir. May 1981). If the party merely files its Rule 12(b)(1) motion, it is considered a facial attack, and the court looks only at the sufficiency of the allegations in the pleading and assumes them to be true. Id. If the allegations are sufficient to allege jurisdiction, the court must deny the motion. Id. This is akin to a Rule 12(b)(6) motion in that the “pleading's allegations are presumed to be true, and ‘[i]f those allegations sufficiently allege a claim for recovery the complaint stands and the federal court must entertain the suit.'” Vinmar Overseas, Ltd. v. OceanConnect, LLC, 2012 WL 3599486, at *4 (S.D. Tex. Aug. 20, 2012) (quoting Jones v. SuperMedia Inc., 281 F.R.D. 282, 286 (N.D. Tex. 2012) (Boyle, J.)).

         A party can also make a factual attack on subject matter jurisdiction by submitting evidence, such as affidavits or testimony. IBEW-NECA Sw. Health & Benefit Fund v. Winstel, 2006 WL 954010, at *1 (N.D. Tex. Apr. 12, 2006) (Fitzwater, J.) (citing Paterson, 644 F.2d at 523). “A factual attack on the subject matter jurisdiction of the court . . . challenges the facts on which jurisdiction depends and matters outside of the pleadings, such as affidavits and testimony, are considered.” Vinmar Overseas, 2012 WL 3599486, at *4 (quoting Oaxaca v. Roscoe, 641 F.2d 386, 391 (5th Cir. Unit A 1981)). The “court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case.” Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. May 1981). “[N]o presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims.” Id. The plaintiff in a factual challenge, as the party seeking to invoke ...


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