Hunter et al v. Cortland Housing Authority et al

Filing 48

DECISION AND ORDER that Defendants' motion to dismiss as a party to this action Plaintiff Second Amendment Foundation for lack of subject-matter jurisdiction (due to lack of standing) pursuant to Fed. R. Civ. P. 12(b)(1) (Dkt. No. 16 ) is GRANTED. The first claim of Plaintiffs Amended Complaint (Dkt. No. 20 ) is DISMISSED without prejudice to the extent it is asserted by Plaintiff Second Amendment Foundation. The Clerk of Court is directed to TERMINATE Plaintiff Second Amendment Foundation as a party to this action. Signed by U.S. District Judge Glenn T Suddaby on 5/9/2024. (sal )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
__________________________________________
ROBERT HUNTER; ELMER IRWIN; DOUG
MERRIN; and THE SECOND AMENDMENT
FOUNDATION,
Plaintiffs,

5:23-CV-1540
(GTS/ML)

v.
CORTLAND HOUSING AUTHORITY; and
ELLA M. DIIORIO, in her official capacity as
Executive Director of Cortland Housing Authority,
Defendants.
__________________________________________
APPEARANCES:

OF COUNSEL:

BOCHNER PLLC
Counsel for Plaintiffs
1040 Avenue of the Americas, 15th Floor
New York, NY 10018

EDWARD A. PALTZIK, ESQ.
SERGE KRIMNUS, ESQ.

THE TOWNE LAW FIRM, P.C.
Counsel for Defendants
500 New Karner Road
PO BOX 15072
Albany, NY 1221

JOHN W. LIGUORI, ESQ.
MARK T. HOUSTON, ESQ.

GLENN T. SUDDABY, United States District Judge
DECISION and ORDER
Currently before the Court, in this civil rights action filed by Robert Hunter, Elmer Irwin,
Doug Merrin, and The Second Amendment Foundation (“Plaintiffs”) against Cortland Housing
Authority and Ella M. Diiorio, in her official capacity as Executive Director thereof
(“Defendants”), is Defendants’ motion to dismiss as a party to this action Plaintiff Second
Amendment Foundation (“Plaintiff SAF”) for lack of subject-matter jurisdiction (due to lack of
1

standing) pursuant to Fed. R. Civ. P. 12(b)(1).

(Dkt. No. 16.) For the reasons set forth below,

Defendants’ motion is granted, and the first claim of Plaintiff’s Amended Complaint is dismissed
without prejudice to the extent it is asserted by Plaintiff SAF.
I.

RELEVANT BACKGROUND
A.

Plaintiffs’ Amended Complaint

Generally, liberally construed, Plaintiffs’ Amended Complaint alleges that Cortland
Housing Authority (“CHA”), a New York State public housing authority that receives federal
funding and houses tenants, categorically bans CHA tenants (including the three individual
Plaintiffs who live in the Galatia Apartments) from possessing firearms and other weapons on
CHA premises, by requiring them, as a condition of receiving the benefit of CHA public
housing, to enter into a standard Residential Lease Agreement (“RLA”), which provides (in the
"Tenant's Obligations" in Article IX, Section [p] of the RLA) that the “Tenant shall be obligated:
. . . Not to display, use, or possess or allow members of Tenant’s household or guest to display,
use or possess any firearms (operable or inoperable) or other weapons as defined by the laws and
courts of the State of New York anywhere on the property of CHA” (“Firearms Ban”). (Dkt.
No. 20, at ¶¶ 1-55.) Each of the three individual Plaintiffs are members of Plaintiff SAF, which
has more than 720,000 members and supporters nationwide, including other members in New
York who are adversely and directly harmed by Defendants’ enforcement of the Firearms Ban.
(Id. at ¶ 14.)
Generally, based on these factual allegations, Plaintiffs’ Amended Complaint asserts four
claims against Defendants: (1) a claim, by all Plaintiffs against all Defendants, that Defendants’
Firearms Ban, facially and as applied to Plaintiffs, violates their right to keep and bear arms in
their homes under the Second Amendment, as incorporated against the states through the Due
2

Process Clause of the Fourteenth Amendment; (2) a claim by Plaintiff Hunter against all
Defendants, that Defendants’ censorship of his protected speech on the CHA Facebook page
violates his right of free speech under the First Amendment, as incorporated through the
Fourteenth Amendment; (3) a claim by Plaintiff Hunter against all Defendants, that Defendants’
deletion of his disagreement with the Firearms Ban on the CHA Facebook page violates his right
to petition the government for the redress of grievances under the First Amendment, as
incorporated through the Fourteenth Amendment; and (4) a claim, by the individual Plaintiffs
against all Defendants, that Defendants’ Firearms Ban, facially and as applied to Plaintiffs,
violates their right not be impermissibly discriminated against based on their status as elderly,
disabled, and financially-disadvantaged individuals who make their homes in public housing
facilities, under the Equal Protection Clause of the Fourteenth Amendment. (Id. at ¶¶ 32-54.)
Generally, as relief for these claims, the Amended Complaint seeks injunctive relief,
declaratory relief, monetary damages, and attorneys’ fees. (Id. at ¶ 101.)
B.

Parties’ Briefing on Defendants’ Motion
1.

Defendants’ Memorandum of Law

Generally, in support of their motion, Defendants assert two arguments. (See generally
Dkt. No. 16, Attach. 2 [Defs.’ Memo. of Law].) First, Defendants argue that Plaintiff’s
Amended Complaint does not allege facts plausibly suggesting that Plaintiff SAF has
associational standing to bring its sole claim (which arises under the Second and Fourteenth
Amendments), because the Amended Complaint’s conclusory allegation that Plaintiff SAF has
“thousands of members in New York” does not plausibly suggest that any of those members are

3

tenants or prospective tenants of CHA other than the three already named individual Plaintiffs.
(Id. at 14-15.) 1
Second, Defendants argue that Plaintiff’s Amended Complaint does not allege facts
plausibly suggesting that Plaintiff SAF has organizational standing to bring its Fourteenth
Amendment claim, because (a) the Amended Complaint does not allege a direct injury to
Plaintiff SAF based upon the alleged firearms ban (e.g., an increase in the difficulty of already
ongoing activities), and (b) indeed, in Antonyuk v. Chiumento, 89 F.4th 271, 344 (2d Cir. 2023),
the Second Circuit expressly rejected the concept that the Second Amendment Foundation has
standing due to its claim that it has “been injured by [a] law touching on an issue within the
scope of its mission (which the organization itself can define or redefine) so long as it expends
resources to oppose that law or regulation.” (Id. at 15.)
2.

Plaintiffs’ Opposition Memorandum of Law

Generally, in response to Defendants’ motion, Plaintiffs argue that Plaintiff SAF has
associational standing under Hunt v. Washington Apple Advertising Comm'n, 432 U.S. 333, 343
(1977), for three reasons. (See generally Dkt. No. 33, at 5-8 [Plfs.’ Opp’n Memo. of Law].)
First, Plaintiffs argue that three of Plaintiff SAF’s members (specifically, the individual
Plaintiffs) unquestionably have properly alleged standing to sue in their own right (satisfying the
first element of the three-part Hunt test). (Id. at 5-6.)
Second, Plaintiffs argue that the interests that Plaintiff SAF seeks to protect are clearly
germane to its purpose (satisfying the second element of the three-part Hunt test), because
1

Page citations in this Decision and Order refer to the screen numbers on the Court's Case
Management / Electronic Case Filing (“CM/ECF”) System, not to the page numbers stated on
the documents contained therein.
4

Plaintiff SAF’s claim would, if successful, reasonably tend to further the general interests that its
individual members sought to vindicate in joining the association (specifically, their interest in
being protected from a wholesale firearms ban that violates the Second Amendment). (Id. at 68.)
Third, Plaintiffs argue that the relief requested by the first claim of the Amended
Complaint does not require the participation of individual members in the lawsuit (satisfying the
third element of the three-part Hunt test), because Plaintiff SAF seeks a purely legal ruling
(specifically, an injunction requiring Defendants to strike the Firearms Ban from the CHA RLA,
affecting all residents subject to Defendants’ authority) without requesting that this Court award
individualized relief to its members. (Id. at 7-8.)
3.

Defendants’ Reply Memorandum of Law

Generally in their reply, Defendants assert three arguments. (See generally Dkt. No. 37
[Defs.’ Reply Memo. of Law].) First, Defendants argue, Plaintiff SAF has conceded that it
lacks organizational standing, because (a) in this District, where a non-movant has failed to
respond to a Defendant’s argument, it is deemed to have “consented” to that argument under
Local Rule 7.1(b)(3) of the District’s Local Rules of Practice, (b) here, in its opposition, Plaintiff
SAF does not oppose Defendants’ argument that Plaintiffs’ Amended Complaint fails to allege
facts plausibly suggesting that Plaintiff SAF possesses organizational standing to maintain the
Amended Complaint’s first claim, and (c) in any event, even if evidence beyond the pleadings
were considered, the Declaration of Adam Kraut (submitted in support of Plaintiffs’ motion for a
temporary restraining order and preliminary injunction) does not demonstrate a perceptible
impairment of Plaintiff SAF’s activities (which is necessary to satisfy the “injury in fact”
5

requirement of standing), especially given that the Declaration states that litigation of Second
Amendment rights is one of Plaintiff SAF’s activities. (Id. at 6-10.)
Second, Defendants argue, as a threshold matter, Plaintiff SAF lacks associational
standing to assert the rights of its members in a claim brought under 42 U.S.C. § 1983 (such as
the Amended Complaint’s first claim), because (a) an action to enforce a party’s Second
Amendment right against state and local government (as incorporated by the Due Process Clause
of the Fourteenth Amendment) does so only through 42 U.S.C. § 1983, and (b) in Aguayo v.
Richardson, 473 F.2d 1090 (2d Cir. 1973), the Second Circuit interpreted the rights secured by
42 U.S.C. § 1983 to be personal to those individuals who have been purportedly injured (and that
interpretation has not yet been overruled either by an en banc panel of the Second Circuit or by
the Supreme Court). (Id. at 10-11.)
Third, Defendants argue, even if Plaintiff SAF possesses associational standing to assert
the rights of its members in a claim brought under 42 U.S.C. § 1983, Plaintiff SAF has failed to
meet its burden of establishing associational standing, because (a) to the extent that the first
claim of the Amended Complaint seeks to recover monetary damages on behalf of the members
of Plaintiff SAF (in the form of compensatory and punitive damages), Plaintiff SAF cannot
recover those damages (which are peculiar to the individual member concerned, and would
require individualized proof), and (b) to the extent that the first claim of the Amended Complaint
seeks prospective relief on behalf of Plaintiff SAF, that prospective requires the participation of
individual members of Plaintiff SAF beyond the individual Plaintiffs, and Plaintiff SAF has
failed to allege (or provided proof) that its members, other than the individual Plaintiffs, have
applied to reside in CHA public housing or have been forced to surrender or have been declined
such residency because of the challenged lease provision. (Id. at 11-13.)
6

II.

GOVERNING LEGAL STANDARD
Rule 12(b)(1) of the Federal Rules of Civil Procedure provides for the dismissal of a

claim when the federal court “lacks subject-matter jurisdiction.” Fed. R. Civ. P. 12(b)(1). A
federal district may lack such subject-matter jurisdiction where the plaintiff lacks standing. See,
e.g., Cortlandt St. Recovery Corp. v. Hellas Telecomms., S.a.r.l., 790 F.3d 411, 416-17 (2d Cir.
2015) (“A district court properly dismisses an action under Fed. R. Civ. P. 12(b)(1) for lack of
subject matter jurisdiction if the court lacks the statutory or constitutional power to adjudicate it,
such as when . . . the plaintiff lacks constitutional standing.”); Makarova v. United States, 201
F.3d 110, 113 (2d Cir. 2000) (“A case is properly dismissed for lack of subject matter
jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional
power to adjudicate it.”).
Generally, a challenge to standing can be either “facial” (i.e., based solely on the
complaint and the documents attached to it) or “fact-based” (i.e., based also on record evidence
outside the pleadings). See Carter v. HealthPort Tech., LLC, 822 F.3d 47, 56 (2d Cir. 2016)
(“A Rule 12(b)(1) motion challenging subject matter jurisdiction may be either facial or factbased.”). In addition, the standing that is challenged can be either “constitutional” in nature
(arising under Article III of the Constitution) or “prudential” in nature. See Warth v. Seldin, 422
US 490, 498, 95 S. Ct. 2197 (1975) (“[Standing asks] whether the litigant is entitled to have the
court decide the merits of the dispute or of particular issues. . . This inquiry involves both
constitutional limitations on federal-court jurisdiction and prudential limitations on its
exercise.”).
Where (as here) a defendant asserts a facial challenge based on lack of constitutional
standing, the plaintiff bears the burden of alleging facts that affirmatively and plausibly suggest
7

the plaintiff has standing to sue in federal court. See Carter, 822 F.3d at 56 (“When the Rule
12(b)(1) motion is facial, i.e., based solely on the allegations of the complaint or the complaint
and exhibits attached to it . . . , the plaintiff has no evidentiary burden. . . . The task of the district
court is to determine whether the Pleading alleges facts that affirmatively and plausibly suggest
that the plaintiff has standing to sue.”) (internal quotation marks and citation omitted).
However, when deciding such a challenge, the court must not only accept as true all
material factual allegations in a complaint but draw all reasonable inferences in favor of the
plaintiff. See John v. Whole Foods Market Group, Inc., 858 F.3d 732, 737 (2d Cir. 2017)
(“When the defendant asserts a ‘facial’ challenge to standing, therefore, it remains the case that
courts should continue to draw from the pleadings all reasonable inferences in the plaintiff's
favor and are to presume that general allegations embrace those specific facts that are necessary
to support the claim.”) (internal quotation marks omitted); Carter, 822 F.3d at 57 (“On appeal,
we review the district court's decision on such a facial challenge de novo, . . . accepting as true
all material factual allegations of the complaint, . . . , and drawing all reasonable inferences in
favor of the plaintiff.”) (internal quotation marks and citations omitted); Lunney v. United States,
319 F.3d 550, 554 (2d Cir. 2003) ("When (as here) a jurisdictional challenge under Fed. R. Civ.
P. 12(b)(1) is addressed to the complaint, a court accepts as true all the factual allegations in the
complaint and must draw all reasonable inferences in favor of the plaintiff."); Sundown v. Aetna
Life Ins. Co., 23-CV-1905, 2024 WL 1051165, at *3 (E.D.N.Y. Jan. 16, 2024) (“[W]hile courts
typically do not draw inferences in favor of the plaintiff when assessing jurisdiction, when a Rule
12(b)(1) motion is facial, the court does “accept as true all material [factual] allegations of the
complaint, and draw all reasonable inferences in favor of the plaintiff.”); cf. Warth v. Seldin, 422
U.S. 490, 501 (1975) ("For purposes of ruling on a motion to dismiss for want of standing, both
8

the trial and reviewing courts must accept as true all material allegations of the complaint, and
must construe the complaint in favor of the complaining party.”). 2
Generally, an organization can plead standing in two ways. First, it may plead that it
suffered an injury “in its own right,” including an impairment of its ability to fulfill its mission
(called “organizational” standing).

See Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 &

n.19 (1982) (“[O]rganizations are entitled to sue on their own behalf for injuries they have
sustained. . . . If, as broadly alleged, petitioners' steering practices have perceptibly impaired
HOME's ability to provide counseling and referral services for low-and moderate-income
homeseekers, there can be no question that the organization has suffered injury in fact.”); Warth
v. Seldin, 422 U.S. 490, 511 ( 1975) (“There is no question that an association may have standing
in its own right to seek judicial relief from injury to itself and to vindicate whatever rights and
immunities the association itself may enjoy.”). Under this theory, “the organization is just
another person–albeit a legal person–seeking to vindicate a right. To qualify, the organization
itself must meet the same standing test that applies to individuals.” N.Y.C.L.U. v. New York City
Transit Auth., 684 F.3d 286, 294 (2d Cir. 2012) (internal quotation marks and citations omitted).
2

Defendants cite case law for the point of law that, when deciding such a motion, a court
may not “draw inferences from the complaint favorable to [the] plaintiff.” (Dkt. No. 16, Attach.
2, at 11-12.) However, that case law appears inapposite if not supportive of the above-stated
point of law. Cf. J.S. ex rel. N.S. v Attica Cent. Schools, 386 F.3d 107, 110 (2d Cir 2004)
(stating that “we are not to draw inferences from the complaint favorable to plaintiffs,” but
appearing to refer to either the ordinary standard governing a challenge to jurisdiction or the
standard on appeal from a district court’s order when “[w]e may consider affidavits and other
materials beyond the pleadings to resolve the jurisdictional issue”); Stevens v City of Oneonta,
21-CV-1258, 2022 WL 16635301, at *3 (N.D.N.Y. Nov. 1, 2022) (D'Agostino, J.) (stating that
the court is “not to draw inferences from the complaint favorable to plaintiffs,” but appearing to
refer to the standard governing a fact-based challenge and, in any event, later clarifying that,
“[i]n considering the legal sufficiency, a court must accept as true all well-pleaded facts in the
pleading and draw all reasonable inferences in the pleader's favor”).
9

Second, an organization may “sue on behalf of its members” (called “associational” or
“representational” standing). N.Y.C.L.U., 684 F.3d at 294 (citations omitted). “[A]n
association has standing to bring suit on behalf of its members when: (a) its members would
otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane
to the organization’s purpose; and (c) neither the claim asserted nor the relief requested requires
the participation of individual members in the lawsuit.” Hunt v. Washington Apple Advertising
Comm’n, 432 U.S. 333, 343 (1977); accord, Riverkeeper, Inc. v. Hudson Wholesalers Rest.
Equip., 22-CV-0564, 2023 WL 6122850, at *4 (N.D.N.Y. Sept. 19, 2023) (Sannes, C.J.); see
also Antonyuk v. Chiumento, 89 F.4th 271, 343-44 (2d Cir. 2023) (“Nor have the two
organizational Plaintiffs in Hardaway articulated any associational or direct injury sufficient to
support the preliminary injunction. To have associational standing, an organization must show,
inter alia, that its members would otherwise have standing to sue in their own right.”) (internal
quotation marks omitted).
III.

ANALYSIS
The Court begins its analysis by agreeing with Defendants that Plaintiffs have effectively

conceded that Plaintiff SAF lacks organizational standing to bring the first claim of Plaintiff’s
Amended Complaint, for the reasons stated by Defendants in their memoranda of law. See,
supra, Parts I.B.1. and I.B.3. of this Decision and Order.
With regard to whether Plaintiff SAF possesses associational (or representational)
standing, the Court must also agree with Defendants’ threshold argument, in their reply
memorandum of law, that (a) more than 50 years ago, the Second Circuit ruled in Aguayo v.
Richardson, 473 F.2d 1090 (2d Cir. 1973), that an organization lacks standing to sue under 42
U.S.C. § 1983 for violations of the rights of its members, and (b) that rule has not yet been
10

overruled either by an en banc panel of the Second Circuit or by the Supreme Court. See, supra,
Parts I.B.1. and I.B.3. of this Decision and Order. Granted, two years after Aguayo, the
Supreme Court observed (albeit in dicta) that “[e]ven in the absence of injury to itself, an
association may have standing solely as the representative of its members” if its members are
harmed. Warth v. Seldin, 422 U.S. 490, 511 (1975) (addressing Section 1983 claims).
Furthermore, two years later, the Supreme Court cited Warth when it formulated a three-part test
for this “associational” or “representational” standing. Hunt v. Washington Apple Advertising
Comm'n, 432 U.S. 333, 343 (1977) (not addressing Section 1983 claims). For this reason,
“several of our sister circuits, unburdened by Aguayo, have applied the Hunt test for
representational standing in 1983 cases.” Centro de la Comunidad Hispana de Locust Valley v.
Town of Oyster Bay, 868 F.3d 104, 123 (2d Cir. 2017) (Jacobs, J., dissenting) (collecting cases).
However, as Defendants argue, the Second Circuit has repeatedly reaffirmed its rule that
an organization lacks standing to sue under 42 U.S.C. § 1983 for violations of the rights of its
members, most-recently in 2021. 3 The fact that the Second Circuit did not recently reject the
3

See, e.g., Nat’l Rifle Assoc. of Am. v. Hochul, No. 20-3187, 2021 WL 5313713, at *2 (2d
Cir. 2021) (“The FAC alleges only injuries to the NRA's members. We have held, however, that
organizations suing under Section 1983 must, without relying on their members’ injuries, assert
that their own injuries are sufficient to satisfy Article III's standing requirements.”) (internal
quotation marks omitted); Conn. Citizens Defense League, Inc. v. Lamont, 6 F.4th 439, 447 (2d
Cir. 2021) (“Because CCDL brought this case under 42 U.S.C. § 1983, it lacked standing to
assert the rights of its members.”) (internal quotation marks omitted); Christa McAuliffe
Intermediate Sch. PTO, Inc. v. de Blasio, 788 F. App’x 85, 85 (2d Cir. 2019) (“[T]he
organizational plaintiffs bringing this appeal do not have standing to assert claims under 42
U.S.C. § 1983 on behalf of their members”); N.Y. State Citizens’ Coalition for Children v. Poole,
922 F.3d 69, 74–75 (2d Cir. 2019) (“In a string of opinions, this Court has held that
organizations suing under Section 1983 must, without relying on their members’ injuries, assert
that their own injuries are sufficient to satisfy Article III's standing requirements”); N.Y. State
Citizens´ Coal. for Children v. Velez, 629 Fed. App’x 92, 93-94 (2d Cir. 2015) (“When an
organization brings suit under 42 U.S.C. § 1983, however, this Circuit has held that it must do so
on its own behalf, rather than that of its members.”); Nnebe v. Daus, 644 F3d 147, 156 (2d Cir.
11

Second Amendment Foundation’s claim of associational standing in Antonyuk v. Chiumento on
this ground but did so on another threshold ground (i.e., mootness) does not relieve the Court of
its concern that the Second Circuit would treat Aguayo as binding law (in the absence of an en
banc decision overruling it). 4 As a result, based on this ground, the Court must, and does,
dismiss the first claim in Plaintiff’s Amended Complaint to the extent it is asserted by Plaintiff
SAF.
In any event, even if the Court were to assume for the sake of argument that the Second
Circuit’s decision in Aguayo had been effectively overruled by the Supreme Court in Hunt (and
Warth), the Court would nonetheless grant Defendants’ motion. This is because, to the extent
that Plaintiff SAF seeks monetary damages on its claim (see Dkt. No. 20, at ¶ 76), the Court
agrees with Defendants’ alternative argument that Plaintiff SAF cannot recover the
compensatory and punitive damages requested: those damages are peculiar to the individual

2011) (“It is the law of this Circuit that an organization does not have standing to assert the rights
of its members in a case brought under 42 U.S.C. § 1983 . . . .”); League of Women Voters of
Nassau Cnty. v. Nassau Cnty. Bd. of Supervisors, 737 F.2d 155, 160 (2d Cir.1984) (“Defendants
correctly maintain that the League does not have standing to assert the rights of its members.
This Circuit has restricted organizational standing under § 1983 by interpreting the rights it
secures to be personal to those purportedly injured.”).
4

See Antonyuk v. Chiumento, 89 F.4th 271, 344 (2d Cir. 2023) ("Plaintiffs Firearms Policy
Coalition, Inc. and the Second Amendment Foundation premised their representational standing
solely on the two named Plaintiffs, without adding supporting declarations from other members. .
. . Having made no submission about any members other than the named Plaintiffs, the
organizational Plaintiffs' associational standing therefore collapses alongside that of Hardaway
and Boyd [whose standing had collapsed because of mootness]."); cf. Conn. Citizens Defense
League, Inc. v. Thody, No. 23-724, 2014 WL 177707, at *3 (2d Cir. Jan. 17, 2024) (“[E]ven
assuming arguendo associational standing could be asserted by an organization on behalf of its
members in a Section 1983 lawsuit, CCDL's blanket allegations that the police chiefs violated
the rights of ‘similarly situated CCDL members’ are insufficient to confer standing on behalf of
members other than the individual plaintiffs [who lack standing because of mootness] and save
its current Section 1983 claims for injunctive relief from dismissal due to mootness.”).
12

members concerned, and therefore would require individualized proof. See, supra, Parts I.B.1.
and I.B.3. of this Decision and Order.
More specifically, as relief for its first claim, the Amended Complaint demands (among
other things) a judgment awarding all Plaintiffs (including Plaintiff SAF) “compensatory and
punitive damages for Defendants’ violation of [all Plaintiffs’] clearly established rights under the
Second and Fourteenth Amendments.” (Dkt. No. 20, at ¶ 76, and 24, Wherefore Clause “(g).”)
However, to the extent that Plaintiff SAF seeks such damages for the violation of the rights of
the three individual Plaintiffs, that relief would be duplicative or redundant of the damages
already sought by those three members of Plaintiff SAF. 5 Moreover, to the extent that Plaintiff
SAF seeks such damages for the violation of the rights of its other members, individualized
proof would be required of both the fact and extent of the injuries to those other members.

See

Warth, 422 U.S. at 515-16 (“[W]hatever the injury may have been suffered is peculiar to the
individual member concerned, and both the fact and extent of injury would require
individualized proof.”); accord, Bano v. Union Carbide Corp., 361 F3d 696, 714 (2d Cir. 2004);
Civil Serv. Emp. Ass'n v. N.Y. State Dep't of Parks, Rec., & Historic Pres., 689 F. Supp. 2d 267,
276 (N.D.N.Y. 2010). Here, no factual allegations plausibly suggesting the fact and extent of
such injuries have been provided. (See generally Dkt. No. 20, at ¶¶ 14, 56-77, and 23,
Wherefore Clause “(b).”)

5

Cf. Bonanini v. Kids Behavioral Health of Montana, Inc., 19-CV-0033, 2020 WL
4060263, at *3 (D. Montana June 5, 2020) ("This reading of [29 U.S.C.] § 2104 is consistent
with the Hunt test for associational standing, which requires an association to show that ‘its
members would otherwise have standing to sue in their own right.' . . . Where those members
have already sued in their own right, however, there is no statutory basis for the association to
bring the exact same WARN Act claims on their behalf.") (internal citation omitted).
13

Finally, to the extent that Plaintiff SAF seeks prospective relief on its claim (see Dkt. No.
20, at ¶ 76), the Court agrees with Defendants’ alternative argument that the declaratory and
injunctive relief requested requires the participation of individual members of Plaintiff SAF
beyond the individual Plaintiffs; and Plaintiff SAF has failed to allege (or provide proof) that its
members, other than the individual Plaintiffs, have applied to reside in CHA public housing or
have been forced to surrender or have been declined such residency because of the challenged
lease provision. See, supra, Parts I.B.1. and I.B.3. of this Decision and Order.
More specifically, as relief for its first claim, the Amended Complaint demands (among
other things) a judgment awarding all Plaintiffs (including Plaintiff SAF) the following two
forms of prospective relief: (1) declaratory relief resulting from Defendants’ violation of the
rights of “SAF and its other members, and all other CHA tenants”; and (2) injunctive relief
resulting from Defendants’ violation of the rights of “SAF and its other members, and all other
similarly situated individuals.” (Dkt. No. 20, at ¶¶ 73-75 and 23, Wherefore Clauses “(a)” and
“(b).”) However, to the extent that Plaintiff SAF seeks such prospective relief for the violation
of the rights of the three individual Plaintiffs, again, that relief would be duplicative or redundant
of the prospective relief already sought by those three members of Plaintiff SAF. Moreover, to
the extent that Plaintiff SAF seeks such prospective relief for the violation of the rights of its
other members, even when liberally construed, Plaintiffs’ Amended Complaint fails to allege
facts plausibly suggesting that any of the “thousands of [SAF’s] members in New York” – other
than the three individual Plaintiffs – reside in, have resided in, have applied to reside in, or are

14

reasonably likely in the near future to apply to reside in, CHA public housing. (Dkt. No. 20, at ¶
14.) 6
For each of these alternative reasons, the Court grants Defendants’ motion, and dismisses
without prejudice the first claim of Plaintiff’s Amended Complaint to the extent it is asserted by
Plaintiff SAF.
ACCORDINGLY, it is
ORDERED that Defendants’ motion to dismiss as a party to this action Plaintiff Second
Amendment Foundation for lack of subject-matter jurisdiction (due to lack of standing) pursuant
to Fed. R. Civ. P. 12(b)(1) (Dkt. No. 16) is GRANTED; and it is further
ORDERED that and the first claim of Plaintiff’s Amended Complaint (Dkt. No. 20) is
DISMISSED without prejudice 7 to the extent it is asserted by Plaintiff Second Amendment
Foundation; and it is further

6

Cf. Religious Sisters of Mercy v. Becerra, 55 F.4th 583, 602 (8th Cir. 2022) (“Other than
the three named plaintiffs who are CBA members – the Diocese, Catholic Charities, and CMA –
the CBA has otherwise failed to identify members who have suffered the requisite harm. . . .
Accordingly, we hold that the CBA lacks associational standing to sue on behalf of unnamed
members.”); A Just Cause v. U.S., 45 F. Supp.3d 1258, 1270, n.4 (D. Colo. 2014) (“In order for
[A Just Cause] to establish ‘associational standing’ it must show, among other things, that its
members would otherwise have standing in their own right. . . . But A Just Cause has given me
no reason to suspect that its members (other than the six Banks defendants themselves) might
have standing in their own right to litigate the due process rights of the Banks defendants.”)
(internal citations omitted).
7

Generally, dismissals for lack of subject-matter jurisdiction due to a lack of Article III
standing must be without prejudice. See Katz v. Donna Karan Co., L.L.C., 872 F.3d 114, 121 (2d
Cir. 2017) (“One other wrinkle: when a case is dismissed for lack of federal subject matter
jurisdiction, Article III deprives federal courts of the power to dismiss [the] case with prejudice. .
. . As a result, where a case is dismissed for lack of Article III standing, as here, that disposition
cannot be entered with prejudice, and instead must be dismissed without prejudice.”) (internal
quotation marks and citation omitted).
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ORDERED that the Clerk of Court is directed to TERMINATE Plaintiff Second
Amendment Foundation as a party to this action.
Dated: May 9, 2024
Syracuse, New York

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