United States District Court, N.D. Texas, Dallas Division
MEMORANDUM OPINION AND ORDER
A. FITZWATER, UNITED STATES DISTRICT JUDGE
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.
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.
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
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.
January 2015, Handy, on behalf of an entity named
“Exotica Texas, LLC, ” 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
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
Compl. Ex. 1 (bold font omitted; emphasis added).
February 24, 2016 Three Expo filed this lawsuit against the
City. 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.
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. 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.
court first considers the City's motion to dismiss under
Rule 12(b)(1) for lack of standing.
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).
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).
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).
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.)).
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 ...