Foresite, LLC v. City of Mobile Board of Zoning Adjustment et al

Filing 32

ORDER granting 23 Motion to Dismiss. The plaintiff's action is dismissed for lack of subject matter jurisdiction. Signed by Chief Judge William H. Steele on 5/2/2014. (tgw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
FORESITE, LLC,
Plaintiff,
v.
CITY OF MOBILE BOARD OF
ZONING ADJUSTMENT, et al.,
Defendants.

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) CIVIL ACTION 14-0048-WS-C
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ORDER

This matter is before the Court on the defendants’ motion to dismiss.
(Doc. 23). The parties have filed briefs in support of their respective positions,
(Docs. 24, 26, 29), and the motion is ripe for resolution. After careful
consideration, the Court concludes the motion is due to be granted.
BACKGROUND
According to the amended complaint, (Doc. 19),1 a non-party (“AT&T”)
filed an application with defendant Mobile City Planning Commission (“the
Commission”) for a new wireless telecommunication facility to be built on a site
leased by AT&T from a third party for that purpose. AT&T also presented to
defendant City of Mobile Board of Zoning Adjustment (“the Board”) a zoning
application seeking certain variances necessary for placement of a tower on the
site. The Commission and the Board denied the applications. The amended

1

The document is styled as an “amended petition for writ of mandamus and
declaratory relief, and request for expedited review.” Since no such pleading is
permitted, Fed. R. Civ. P. 7(a), since the document serves every function of a complaint,
id. Rules 3, 8(a), and since it supersedes the plaintiff’s original filing, which was styled as
a “complaint,” (Doc. 1), the document will be referred to herein as an amended
complaint.

complaint alleges that the defendants’ actions violate the Telecommunications Act
of 1996 (“TCA”) in various respects. The amended complaint seeks a declaration
that the defendants violated the TCA, accompanied by issuance of a writ of
mandamus ordering them to approve AT&T’s applications.
The motion to dismiss challenges the plaintiff’s standing to bring this
action. According to the amended complaint, the plaintiff’s connection with this
matter is that it entered a contract (“the Purchase Order”) with AT&T to provide
certain services related to construction of the tower; that those services include
(after zoning and planning approval is obtained) site preparation, contract
negotiation with the tower builder, and title work; and that it will not receive
compensation for such services unless the applications are approved. (Doc. 19, ¶¶
17, 22, 28).2 These allegations were added by the amended complaint, which the
plaintiff filed in response to the defendants’ motion to dismiss the original
complaint for lack of standing. (Docs. 1, 10).3
DISCUSSION
“There is no burden upon the district court to distill every potential
argument that could be made based upon the materials before it on summary
judgment.” Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir.
1995). The Court applies a similar rule to motions to dismiss and accordingly
limits its review to those arguments the parties have expressly advanced. E.g.,
Jurich v. Compass Marine, Inc., 906 F. Supp. 2d 1225, 1228 (S.D. Ala. 2012).
There are two strands of standing analysis: constitutional standing and
prudential standing. Elk Grove Unified School District v. Newdow, 542 U.S. 1, 11
2

The amended complaint also alleges that “AT&T authorized Foresite to initiate
this suit,” (Doc. 19, ¶ 41), which apparently is based on the Purchase Order’s engagement
of the plaintiff to “prosecut[e] any appeals of application denials.” (Id., ¶ 17). The
plaintiff makes no argument that this authorization is relevant to the standing analysis.
3

Upon filing of the amended complaint, the Court denied the initial motion to
dismiss as moot. (Doc. 21). The instant motion followed.
2

(2004). Constitutional standing is jurisdictional, and in its absence “the federal
court must dismiss the case for lack of subject matter jurisdiction.” Florida
Wildlife Federation, Inc. v. South Florida Water Management District, 647 F.3d
1296, 1302 (11th Cir. 2011); accord Stalley ex rel. United States v. Orlando
Regional Healthcare System, Inc., 524 F.3d 1229, 1232 (11th Cir. 2008). Because
the defendants assert that constitutional standing is absent, their motion is one
under Rule 12(b)(1) to dismiss for lack of subject matter jurisdiction. Their
motion expressly invokes this rule. (Doc. 23 at 1).
A Rule 12(b)(1) motion may mount either a facial or a factual attack on
subject matter jurisdiction. “A facial attack on the complaint requires the court
merely to look and see if the plaintiff has sufficiently alleged a basis of subject
matter jurisdiction, and the allegations in his complaint are taken as true for the
purposes of the motion.” Stalley, 524 F.3d at 1232-33 (internal quotes omitted).
The defendants’ argument is facial, not factual.4
The “irreducible constitutional minimum of standing contains three
elements.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). While the
parties address all three elements, the Court finds the first dispositive. “First, the
plaintiff must have suffered an injury in fact – an invasion of a legally protected
interest which is (a) concrete and particularized …; and (b) actual or imminent,
not conjectural or hypothetical ….” Id. (internal quotes omitted, emphasis
added).5 The plaintiff quotes this portion of Lujan and addresses (a) and (b), but it
4

The defendants submit the two applications, which are not exhibits to the
amended complaint. They argue that consideration of these documents does not convert
their attack into a factual one because the amended complaint cites and relies on them.
(Doc. 24 at 7). The plaintiff concedes the point. (Doc. 26 at 3). However, because the
defendants do not utilize the applications for any proposition not already set forth in the
amended complaint itself, the Court has not considered the applications in resolving the
defendants’ motion.
5

Accord Vermont Agency of Natural Resources v. United States ex rel. Stevens,
529 U.S. 765, 772 (2000) (“The interest must consist of obtaining compensation for, or
preventing, the violation of a legally protected right.”).
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omits the emphasized phrase from both its quote and its argument. (Doc. 26 at 5).
This is unfortunate, since that phrase is the key to the defendants’ motion.
The plaintiff does not claim any legally protected interest in the grant of
AT&T’s applications. On the contrary, the plaintiff identifies its only interest as
its “interest in the Purchase Order.” (Doc. 26 at 5). Its interest in the Purchase
Order, it says, is an interest in earning compensation by performing post-approval
work. (Id.). This is consistent with the allegations of the amended complaint
discussed above.
In order to establish constitutional standing to pursue a claim for breach of
contract, a non-contracting party “must show that [it] held a legally protected
interest in the [contract].” Avenue CLO Fund, Ltd. v. Bank of America, 709 F.3d
1072, 1077 (11th Cir. 2013).6 Although this case challenges governmental action
other than a breach of contract, by analogy the plaintiff here must show it held a
legally protected interest in AT&T’s applications and the rulings thereon, not
simply that it held an interest in a contract adversely affected by the denial of the
applications. Since the plaintiff claims no such interest in the applications or
rulings thereon, it necessarily lacks standing.
Indeed, it appears the plaintiff lacks even a legally protected interest in
performing post-approval work and receiving compensation therefor. The
amended complaint alleges that the plaintiff was to perform such work only “upon
approval” of the applications, (Doc. 19, ¶¶ 22, 38), which reflects that the
plaintiff’s performance of the work (and receipt of compensation) was expressly
conditioned on governmental approval of the applications. A qui tam relator has
no legally protected interest in the portion of the proceeds of a successful False

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Accord AT&T Mobility, LLC v. National Association for Stock Car Auto Racing,
Inc., 494 F.3d 1356, 1360 (11th Cir. 2007) (“For AT&T Mobility to have standing to
challenge NASCAR’s decision under the RCR Agreement to prohibit the display of the
AT&T logo on the #31 Car, it must … first demonstrate that NASCAR has invaded a
‘legally protected interest’ derived by AT&T Mobility from the RCR Agreement between
NASCAR and RCR.”).
4

Claims Act lawsuit which the Act assigns him until such time as he prevails in the
action; he therefore cannot base his standing to pursue a claim under the Act on
this potential future recovery. Vermont Agency of Natural Resources v. United
States ex rel. Stevens, 529 U.S. 765, 772-73 (2000). Just so, the plaintiff here has
no legally protected interest in performing post-approval work until and unless
that approval is obtained. Because approval was not obtained, the plaintiff had
and has no legally protected interest under the Purchase Order. For the same
reason, there has been no “invasion” of an existing right to post-approval
compensation, because no such right could materialize before approval of the
applications.7
The plaintiff’s position is that it has standing to challenge an unfavorable
governmental ruling vis-à-vis a third party simply because it would make money
under a contract with the third party were there a different ruling. The expansion
of standing that adoption of the plaintiff’s position would entail is difficult to
overstate. If the plaintiff is correct, a bartender laid off because his employer lost
its liquor license could sue the ABC board to challenge its decision. A wholesaler
could sue a city for canceling a contract with a retailer supplied by the wholesaler.
A builder under contract with a property owner could sue if a governmental entity
determined the owner need not make alterations to its building. The plaintiff cites
no authority even remotely supporting such a radical alteration in traditional
standing doctrine.
“In every federal case, the party bringing the suit must establish standing to
prosecute the action.” Elk Grove, 542 U.S. at 11. On motion to dismiss, the
plaintiff must show that its complaint pleads the three irreducible constitutional

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The amended complaint alleges that one of the tasks undertaken by the plaintiff
pursuant to the Purchase Order is “prosecuting any appeals of application denials,” (Doc.
19, ¶ 17), so it is clear the contracting parties recognized that the condition of government
approval might not be satisfied and that the plaintiff’s right to perform post-approval
work thus might never arise.

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elements of standing. Hollywood Mobile Estates Ltd. v. Seminole Tribe, 641 F.3d
1259, 1265 (11th Cir. 2011). As discussed above, the plaintiff has failed to show
that the complaint reflects its possession of a legally protected interest invaded by
the defendants. Dismissal is thus required.
The plaintiff insists it has statutory standing under the TCA. (Doc. 26 at 89). “[T]he constitutional standing requirements … apply to all cases brought in
federal courts ….” Via Mat International South America Ltd. v. United States,
446 F.3d 1258, 1263 (11th Cir. 2006). Whether or not the plaintiff has statutory
standing, it must still satisfy constitutional standing in order to successfully invoke
federal subject matter jurisdiction, and its failure to do so is fatal.
The plaintiff has had two opportunities to plead the elements of
constitutional standing. No further opportunities have been requested, and none
will be afforded. For the reasons set forth above, the defendants’ motion to
dismiss is granted. The plaintiff’s action is dismissed for lack of subject matter
jurisdiction.
DONE and ORDERED this 2nd day of May, 2014.
s/ WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE

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