Teens of Tomorrow v. City of Bellevue, Nebraska et al

Filing 111

MEMORANDUM AND ORDER - The Defendant Ralston's 101 Motion to Dismiss for failure to state a claim is granted. Plaintiff's complaint as to the City of Ralston is dismissed without prejudice, each side to bear its own costs and attorney fees. Ordered by Senior Judge Lyle E. Strom. (MKR)

IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEBRASKA
TEENS OF TOMORROW, INC.

)
)
Plaintiff,
)
)
v.
)
)
CITY OF BELLEVUE, NEBRASKA;
)
CITY OF LINCOLN, NEBRASKA;
)
CITY OF OMAHA, NEBRASKA;
)
CITY OF PAPILLION, NEBRASKA; )
CITY OF LA VISTA, NEBRASKA;
)
CITY OF COLUMBUS, NEBRASKA;
)
and CITY OF RALSTON, NEBRASKA,)
)
Defendants.
)
______________________________)

8:13CV127

MEMORANDUM AND ORDER

This matter is before the Court on the motion of
defendant City of Ralston (“Ralston”) (Filing No. 101), filed
pursuant to Federal Rule of Civil Procedure 12(b), seeking
dismissal due to lack of subject matter jurisdiction and failure
to state a claim on which relief can be granted.

Plaintiff Teens

of Tomorrow, Inc., did not file a brief in opposition to
Ralston’s motion.

After careful consideration of the motion and

the relevant law, the Court finds that the motion to dismiss for
lack of subject matter jurisdiction should be granted.
I.

Legal Standard.
A federal district court must first address “the

threshold question whether [plaintiff has] alleged a case or
controversy within the meaning of Art. III of the Constitution or
only abstract questions not currently justiciable by a federal

court.”

Babbitt v. United Farm Workers Nat. Union, 442 U.S. 289,

297 (1979).

“[T]he complaint must contain more than bald

assertions of injury to survive a motion to dismiss . . . .”
Burton v. Cent. Interstate Low-Level Radioactive Waste Compact
Comm’n, 23 F.3d 208, 210 (8th Cir. 1994).

“To show Article III

standing, a plaintiff has the burden of proving: (1) that he or
she suffered an ‘injury-in-fact,’ (2) a causal relationship
between the injury and the challenged conduct, and (3) that the
injury likely will be redressed by a favorable decision.”

Steger

v. Franco, Inc., 228 F.3d 889, 892 (8th Cir. 2000) (quoting Lujan
v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)).
II.

Discussion.
As this Court noted in its order denying plaintiff’s

motion for a temporary restraining order, plaintiff’s complaint
seeks declaratory and injunctive relief and damages due to
alleged violations of the First and Fourteenth Amendments to the
United States Constitution, as well as similar clauses of the
Nebraska Constitution.

Plaintiff claims that it is a “duly

incorporated non-profit organization organized under Iowa law,
certified by the Nebraska Secretary of State to do business in
the state of Nebraska,” and that it is a non-profit organization
under 26 U.S.C. § 501(c)(3) (Complaint, Filing No. 1, at ¶¶ 4,
5).

Plaintiff states, “Teens of Tomorrow is a non-profit

corporation, created to provide teens with activities in a

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positive environment in order to dissuade them from engaging in
drugs, gang activities, or other dangerous behaviors” (Id. at
¶ 20).

“To this end, plaintiff Teens of Tomorrow employs

Nebraska teenage and young adult volunteers to sell items,
including but not limited to candy bars, door to door, in order
to provide these teens with part-time work, while teaching them
useful work skills for later in life . . . .” (Id. at ¶ 21).
The complaint continues, “In 2010, 2011, and 2012,
Quenton Pfitzer, as registered agent and executive director of
Teens of Tomorrow, applied for a vendor license, allowing
door-to-door solicitation, for the organization from the
Defendant cities” (Id. at ¶ 22).

Plaintiff states in general

terms in its complaint that the defendant cities “would not issue
a license for Plaintiff Teens of Tomorrow” (Id. at ¶ 23).1
Moreover, “When attempting to send volunteers into Defendant
cities, Quenton Pfitzer has been forced to cease and desist
soliciting under threat of arrest . . .” (Id. at ¶ 38).

In

addition, the complaint states that Ralston’s hours for
solicitation, set by ordinance, are inconvenient for plaintiff
(Id. at ¶ 39, 41-42).

1

The Court notes that plaintiff described the situation
differently in its affidavit supporting its motion for temporary
restraining order, where plaintiff’s sole stated reason for its
difficulties with Ralston read, “I can’t aford there fee for the
size of there city” (Pl. Ex. 10D).
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Ralston states in its brief, “None of the factual
allegations in the Complaint claim that Ralston, or its
officials, refused to issue Plaintiff a license to conduct its
activities or business within Ralston.

No facts, specific or

otherwise, are alleged to show that Plaintiff’s volunteers
operated in Ralston at all”

(Filing No. 103, at 2).

“Plaintiff

fails to allege any injury in fact which ever occurred in the
City of Ralston” (Id. at 3).

“Plaintiff has never applied for a

permit in Ralston to sell its candy bars.

Neither has it been

prevented by Ralston from doing so, with or without a permit, nor
has it been threatened with prosecution for doing so” (Id.).
“Plaintiff has never conducted activities inside the city limits
or jurisdictional limits of Ralston” (Id.).2
Quite simply, the Court finds that Teens of Tomorrow
has not alleged any facts that show that it has suffered an
injury-in-fact at the hands of the City of Ralston.

As a result,

the Court finds that Teens of Tomorrow lacks standing to bring
suit against the City of Ralston and that Ralston’s motion to

2

As noted, Teens of Tomorrow did not file a brief in
opposition to Ralston’s motion. The Court notes the local civil
rule on motion practice: “Effect of Failure to File. Failure to
file an opposing brief is not considered a confession of a motion
but precludes the opposing party from contesting the moving
party’s statement of facts.” NECivR 7.1(b)(1)(C).
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dismiss for lack of subject matter jurisdiction will be granted.3
Since “[d]ismissal for lack of jurisdiction is not an
adjudication of the merits,” the case against Ralston “must be
dismissed without prejudice.”

Missouri Soybean Ass’n v. U.S.

E.P.A., 289 F.3d 509, 513 (8th Cir. 2002).

Accordingly,

IT IS ORDERED that defendant Ralston’s motion to
dismiss (Filing No. 101) is granted.

Plaintiff’s complaint as to

the City of Ralston is dismissed without prejudice, each side to
bear its own costs and attorney fees.
DATED this 30th day of July, 2013.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court

3

Having found that it lacks jurisdiction, the Court will
not address the merits of Ralston’s motion alleging failure to
state a claim on which relief can be granted.
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