Svanda et al v. Jackson County et al

Filing 57

ORDER. For the reasons stated within the attached Memorandum and Order, Defendants' Second Motion to Dismiss for Failure to State a Claim (Doc. 50 ) is GRANTED in part and DENIED in part. Plaintiffs' Complaint is h ereby DISMISSED without prejudice and with leave to file a Second Amended Complaint, if at all, within seven (7) days. Defendants shall file their responsive pleading thereto within seven (7) days thereafter. Signed by Judge David W. Dugan on 1/9/2022. (dmw2)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JASON SVANDA, et al.
Plaintiffs,
vs.
JACKSON COUNTY, et. al.
Defendants.

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Case No. 21-cv-909-DWD

MEMORANDUM & ORDER
DUGAN, District Judge:
Plaintiffs challenge the constitutionality of the apportionment of county board
districts in Jackson County, Illinois. On August 11, 2021, they filed suit pursuant to 42
U.S.C. § 1983 and the Declaratory Judgment Act, 28 U.S.C. § 2201, alleging that the
redistricting plan violates 55 ILCS, 5/2-3003, et seq., and the Fourteenth Amendment’s
Equal Protection Clause. (Doc. 1) On November 24, 2021, Plaintiffs filed their Amended
Complaint (Doc. 45) directed at County Ordinance 2021-08 which adopted a new
redistricting map. Plaintiffs’ First Amended Complaint (“Complaint”) claims, in Count
I, violations of 55 ILCS §5/2-3003, in that, according to Plaintiffs, the County Districts are
not compact, do not follow logical or natural boundaries and are not contiguous, thereby
dividing natural communities. (Doc. 45, ¶ 76); in Count II that the Defendants have
violated the Equal Protection Clause of the Fourteenth Amendment of the United States
Constitution in failing to draw the districts as “equal as possible” and that, by doing so,
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have caused the votes of certain minorities to become diluted (Doc. 45, ¶79-80); in Count
III that the Defendants have violated the Illinois Voting Rights Act of 2011 (10 ILCS 120
/5-5) by “cracking” the minority vote and thereby diluting it. (Doc. 45, ¶ 82); and in Count
IV that the Defendants have violated certain Jackson County Bylaws by failing to give
proper notice prior to enacting the ordinance. (Doc. 45, ¶85-90). In Count V, the Plaintiffs
seek declaratory judgment, presumably pursuant to 28 USCA §2202. Defendants move
to dismiss Plaintiffs’ Complaint for a variety of reasons, among them is that the matter is
not ripe, that the Plaintiffs lack standing and that the Complaint fails to state a claim.
DEFENDANTS MOTION TO DISMISS
All but Count II of the Complaint advance claims based on violations of state law.
Only Count II is founded on federal law, specifically the Equal Protection Clause of the
Fourteenth Amendment. 1 Clearly, this Court has original jurisdiction over the claims
raised in Count II. See 28 USCA §1331 (district courts have original jurisdiction of all
civil actions under the Constitution and laws of the United States) Of course, “in any civil
action of which the district courts have original jurisdiction, the district courts shall have
supplemental jurisdiction over all other claims that are so related to claims in the action
within such original jurisdiction that they form part of the same case or controversy under
Article III of the United States Constitution.” 28 U.S.C.A. § 1367(a) (West). Thus, this
Court has jurisdiction over the Plaintiffs’ state-law claims so long as their federal-law

Plaintiffs also seek a declaratory judgment that the “apportionment ordinance [Defendants] knew violates
55 ILCS 5/2-3003, the Fourteenth Amendment, and the U.S. Constitution.” (Doc. 45, P. 20) The Declaratory
Judgment Act (28 U.S.C. §2201) creates no new rights, but rather creates a new remedy with which to
adjudicate existing rights.

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claims survive. 2 However, since this Court will dismiss without prejudice Count II of the
Complaint because the Plaintiffs have not adequately pled that they have standing to
bring their constitutional claims to this Court, leaving only the Counts asserting state-law
claims, the Court will not at this time address the Plaintiffs’ Motion to Dismiss as it relates
to the state-law Counts. (See Fed. R. Civ. Pro. Rule 12(b)(6))
RIPENESS OF PLAINTIFFS’ CLAIMS
Defendants argue in their motion— which was filed on December 9, 2021— that
the present action “cannot possibly be ripe until December 31, 2021”, which is the
deadline established by the State Legislature for a county board to enact reapportionment
legislation. (Doc. 50, ¶¶3-4). They touch on the basic tenet that a district court is limited
by Article III, § 2 of the U.S. Constitution to the adjudication of actual cases or
controversies. Defendants do not, however, contest that these claims become ripe after
the passage of the year-end deadline. Nor do Defendants suggest that after December 31,
2021, the Plaintiffs’ disputes will continue to be “hypothetical, speculative, or illusory
disputes as opposed to actual, concrete conflicts.” Hinrichs v. Whitburn, 975 F.2d 1329,
1333 (7th Cir. 1992). And, nothing appears from the filings of the parties that indicates
that apportionment ordinance has been repealed. Moreover, the hardship that would
befall the parties, as well as other voting citizens and campaigning candidates should this
matter be unnecessarily deferred is real. See Thomas v. Union Carbide Agr. Prod. Co., 473

Plaintiffs also claim that this Court has jurisdiction pursuant to 28 U.S.C. §1343 but do not state under
which subsection they make this claim.
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U.S. 568, 581, 105 S. Ct. 3325, 3333, 87 L. Ed. 2d 409 (1985) (“the fitness of the issues for
judicial decision” and “the hardship to the parties of withholding court consideration”
must inform any analysis of ripeness.). Accordingly, the Court finds that Plaintiffs’
Constitutional claim is “ripe” for judicial decision.
PLAINTIFFS’ STANDING AND RULE 12(B)(1)
Defendants argue in their Motion to Dismiss that the Plaintiffs lack standing to
bring a claim under the Fourteenth Amendment and that only one Plaintiff, Navreet
Kang, is named as having any connection to a racially gerrymandered district. Even then,
Defendants assert, nothing is alleged in the Complaint that would suggest that he is a
member of a minority group. (Doc. 50, ¶ 5) Thus, the Defendants make a facial challenge
the adequacy of the pleading under Rule 12(b)(1). See Apex Digital, Inc. v. Sears, Roebuck
& Co., 572 F.3d 440, 443 (7th Cir. 2009) (Facial challenges require only that the court look
to the complaint and see if the plaintiff has sufficiently alleged a basis of subject matter
jurisdiction.)
It is well settled that “the irreducible constitutional minimum of standing contains
three elements. First, the plaintiff must have suffered an ‘injury in fact’—an invasion of a
legally protected interest that is (a) concrete and particularized, and (b) actual or
imminent, not conjectural or hypothetical. Second, there must be a causal connection
between the injury and the conduct complained of.... Third, it must be likely, as opposed
to merely speculative, that the injury will be redressed by a favorable decision.” United

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States v. Hays, 515 U.S. 737, 742–43, 115 S. Ct. 2431, 2435, 132 L. Ed. 2d 635 (1995) citing
Lujan v. Defs. of Wildlife, 504 U.S. 555, 561, 112 S. Ct. 2130, 2136, 119 L. Ed. 2d 351 (1992).
“The party invoking federal jurisdiction bears the burden of establishing these elements.”
Id. “At the pleading stage, general factual allegations of injury resulting from the
defendant's conduct may suffice, for on a motion to dismiss we “presum[e] that general
allegations embrace those specific facts that are necessary to support the claim.” Id.
However, “it follows that the Twombly–Iqbal facial plausibility requirement for pleading
a claim is incorporated into the standard for pleading subject matter jurisdiction.” Silha
v. ACT, Inc., 807 F.3d 169, 174 (7th Cir. 2015) “[W]hen evaluating a facial challenge to
subject matter jurisdiction under Rule 12(b)(1), a court should use Twombly–Iqbal's
“plausibility” requirement, which is the same standard used to evaluate facial challenges
to claims under Rule 12(b)(6).” Id. Still, the allegations of fact—though they must be
clearly alleged,—need only “plausibly suggest” each element of standing, with the court
drawing all reasonable inferences in the plaintiff's favor, Silha v. ACT, Inc., 807 F.3d 169,
173–74 (7th Cir. 2015). (Citations omitted. See Spokeo, Inc. v. Robins, 578 U.S. 330, 338, 136
S. Ct. 1540, 1547, 194 L. Ed. 2d 635 (2016), as revised (May 24, 2016))
A review of the Complaint reveals that Plaintiffs allege that “Navreet Kang is a
citizen of the United States and the State of Illinois, and a duly registered voter residing
in Jackson County” and that “he resides in an area with large minority population”. (Doc.
45, ¶ 34) The Complaint provides further that “however, under Ordinances 2021-01 and
2021-08, enacted by the Defendants, the minority district is cracked to fill other Caucasian
districts to enhance the Democrat partisan advantage.” Id. Such allegations are far too
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bare-bones and conclusory to meet even the low-threshold pleading requirements of Rule
8 (Fed. R. Civ. P. Rule 8) let alone demonstrate that Mr. Kang has a “personal stake in the
outcome.” Gill v Whitford, 138 S. Ct. 1916, 1923 (2018). Here, the Plaintiffs have alleged no
facts suggesting that any specific Plaintiff has suffered “injury in fact” or that any such
injury is “fairly traceable” to the Defendants’ conduct. As such, the Plaintiffs have not
met their burden to factually establish standing.
Nevertheless, Plaintiffs argue in their response to the Rule 12(b)(1) motion that
“[d]ue to Navreet Kang’s political involvement, there is significant reason to believe that
the Defendants, along with Defendants’ counsel, know Mr. Kang personally and know
that he is a Minority”. (Doc. 54, p. 4) The Plaintiffs go on in their response to add that
“[a]ccording to his online biography, Mr. Kang is of Indian-ethnic origin” and “selfidentifies as a minority.” (Doc. 54, p. 5) None of these allegations are supported by
affidavit or otherwise appear of record. Moreover, these new allegations are much more
than mere elaborations on evidence the Plaintiffs plan to introduce during trial. See Bell
v. Publix Super Markets, Inc., 982 F.3d 468, 480 FN 2 (7th Cir. 2020) (plaintiff may describe
the evidence she expects to offer to support factual allegations, and nothing prevents a
plaintiff from including such allegations in the complaint or from tendering affidavits or
other documents to show that those expectations about evidence are realistic.) Rather,
they introduce allegations that Defendants already know that Mr. Kang is of a minority
race or that Defendants should know the contents of his online biography. Maybe the
Defendants are aware of these things, but the Complaint does not allege that to be the
case and the Plaintiffs may not amend their Complaint merely by adding allegations in
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their responsive brief to the motion. See Pirelli Armstrong Tire Corp. Retiree Med. Benefits
Tr. V. Walgreen Co., 631 F.3d 436, 448 (7th Cir. 2011)(“the axiomatic rule that a plaintiff
may not amend his complaint in his response brief.”)
Standing is a threshold requirement because it derives from the Constitution's
limit on federal courts’ authority to resolve “cases” and “controversies.” Bazile v. Fin. Sys.
of Green Bay, Inc., 983 F.3d 274, 278 (7th Cir. 2020) “[F]ederal courts are obliged to police
the constitutional ... limitations on their jurisdiction.” Kanzelberger v. Kanzelberger, 782
F.2d 774, 777 (7th Cir. 1986). In other words, should a Plaintiff lack standing, the district
court lacks the authority to decide any aspect of the case, including pending or
outstanding motions to dismiss under Rule 12(b)(6). Presently, the Plaintiffs have not
adequately pled that they or any of them have standing to bring and maintain a
Constitutional claim. As a result, their Complaint should be dismissed. Given that it is
also unclear whether the Plaintiff would be able to allege sufficiently that this Court has
subject-matter jurisdiction, the Court will not at this time address the other aspects of the
Defendants’ motion to dismiss. Of Course, the granting of the Defendants’ motion to
dismiss on the basis of the failure to adequately plead standing does not necessarily end
this litigation. A Court “should freely give leave” to amend a pleading when justice so
requires. See Fed. R. Civ. P. 15(a)(2). Therefore, the Court will allow the Plaintiffs leave to
amend their Complaint. See Lewert v. P.F. Chang's China Bistro, Inc., 819 F.3d 963, 969 (7th
Cir. 2016) (where the Court recognized that a dismissal for lack of subject-matter
jurisdiction may be a dismissal without prejudice.) The Defendants’ may, in response to
any such amended complaint, renew their motion to dismiss or otherwise plead.
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DISPOSITION
The Defendants’ Motion is GRANTED in part and DENIED in part. Plaintiffs’
Complaint is hereby DISMISSED without prejudice and with leave to file a Second
Amended Complaint, if at all, within seven (7) days. Defendants shall file their responsive
pleading thereto within seven (7) days thereafter.

SO ORDERED.
Dated: January 9, 2022

______________________________
DAVID W. DUGAN
United States District Judge

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