Krause v. City of Omaha

Filing 24

MEMORANDUM AND ORDER that Plaintiff's Amended Complaint 6 is dismissed. A separate Judgment will be entered. Ordered by Chief Judge Laurie Smith Camp. (Copy mailed to pro se party) (JSF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
RANDALL S. KRAUSE,
Plaintiff,

8:14CV94

vs.
MEMORANDUM
AND ORDER

CITY OF OMAHA,
Defendant.

This matter is before the Court on its own motion. On February 9, 2015, this
Court entered an Order to Show Cause (Filing No. 21), requiring Plaintiff Randall S.
Krause (“Plaintiff”) to file a memorandum showing cause why his claims against the City
of Omaha (the “City”) should not be dismissed by this Court due to lack of subjectmatter jurisdiction. On February 11, 2015, Plaintiff filed a memorandum in response to
the Court’s Order. (Filing No. 22). Thereafter, the City filed a response to Plaintiff’s
memorandum. (Filing No. 23). After reviewing the Parties’ responses, the Court is not
persuaded that it has subject-matter jurisdiction over Plaintiff’s claim against the City.
DISCUSSION
Fed. R. Civ. P. 12(h)(3) provides: “If the court determines at any time that it lacks
subject-matter jurisdiction, the court must dismiss the action.”
In his Amended Complaint (Filing No. 6), Plaintiff only seeks a declaratory
judgment that the materials the City deposits on the streets of Omaha for snow and ice
control are “solid waste” as defined in 42 U.S.C. § 6903(27). “For a declaratory
judgment to issue, there must be a dispute which ‘calls, not for an advisory opinion upon
a hypothetical basis, but for an adjudication of present right upon established facts.’”

Ashcroft v. Mattis, 431 U.S. 171, 172 (1977) (quoting Aetna Life Ins. Co. v. Haworth,
300 U.S. 227, 242 (1937)). Under Article III of the Constitution, “[f]ederal courts may not
‘decide questions that cannot affect the rights of litigants in the case before them’ or
give ‘opinion[s] advising what the law would be upon a hypothetical state of facts.’”
Chafin v. Chafin, 133 S. Ct. 1017, 1023 (2013) (quoting Lewis v. Cont'l Bank Corp., 494
U.S. 472, 477 (1990)). This is because “Article III, § 2, of the Constitution restricts the
federal ‘judicial Power’ to the resolution of ‘Cases’ and ‘Controversies.’”

Sprint

Commc'ns Co., L.P. v. APCC Servs., Inc., 554 U.S. 269, 273 (2008).
There is no Article III case-or-controversy if a plaintiff does not have standing. Id.
To have standing, a plaintiff must establish the following “‘irreducible constitutional
minimum’ requirements”:
(1) an injury in fact (i.e., a “concrete and particularized” invasion of a
“legally protected interest”); (2) causation (i.e., a “fairly ... trace[able]”
connection between the alleged injury in fact and the alleged conduct of
the defendant); and (3) redressability (i.e., it is “likely” and not “merely
speculative” that the plaintiff's injury will be remedied by the relief plaintiff
seeks in bringing suit).
Id. at 274-273 (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561 (1992))
(alterations in original).
In its Order to Show Cause the Court noted that Plaintiff failed to allege an injury
in fact in the Amended Complaint. In his request for relief, Plaintiff only “asks the Court
to determine through a declaratory judgment if the materials that the [City] applies to
streets in the City of Omaha for snow and ice control during the winter season become
‘solid waste’ under 42 U.S.C. § 6903(27) after they have served their intended purpose.”
(Filing No. 6 at ¶30).

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Although it is not apparent from the face of the Amended Complaint, Plaintiff
claims in his memorandum that his injury is harm to his environment and his motivation
is protection of the environment. (Filling No. 22 at 3.) Even if Plaintiff had alleged an
injury to his environment in the Amended Complaint, such an injury raises “only a
generally available grievance about government” and “does not state an Article III case
or controversy.” See Lujan, 504 U.S. at 573-74.
Nor do the allegations in the Amended Complaint support any finding of
causation or redressability. The Amended Complaint does not explain how the City’s
conduct caused any harm to Plaintiff’s environment, or how Plaintiff’s injuries would be
redressed by this action.1 In other words, the alleged harm to Plaintiff’s environment
would not be resolved if the Court declared that the materials the City deposited on the
streets were solid waste as defined by 42 U.S.C. § 6903(27).
On the face of the Amended Complaint, Plaintiff lacks standing to bring this
action, and granting Plaintiff’s request for relief would result in a mere advisory opinion.
Therefore, the Court does not have subject-matter jurisdiction over the above-captioned
matter, and Plaintiff’s Amended Complaint will be dismissed.
IT IS ORDERED:
1. Plaintiff’s Amended Complaint (Filing No. 6) is dismissed; and

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Plaintiff claims that “[a] declaration from this Court that the materials that the [City] applies to
streets for snow and ice control constitute ‘solid waste’ under 42 U.S.C. § 6903(27) after they have
served their intended purpose will begin the process of developing guidelines to ensure that all of the
materials are disposed of in an environmentally sound manner.” (Filing No. 22 at 3-4.) Plaintiff does not
ask the Court to order that the materials are disposed of in any specific manner, nor does he identify any
cause of action that gives the Court authority to do so. The statute cited in the Amended Complaint, 42
U.S.C. § 6903(27), defines a term, but it does not create a cause of action. As stated above, “[f]ederal
courts may not ‘decide questions that cannot affect the rights of litigants in the case before them’ . . . .”
Chafin, 133 S. Ct. at 1023.

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2. A separate Judgment will be entered.
Dated this 16th day of March, 2015.
BY THE COURT:
s/Laurie Smith Camp
Chief United States District Judge

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