Hardt v. City of Portland

Filing 34

OPINION AND ORDER. This case cannot proceed to a jury trial because this Court lacks authority to continue adjudicating it and is required to dismiss the case. Accordingly, Hardt's Motion for Preliminary Injunction, ECF 10 , is DENIED , and defendants' Motions to Dismiss, ECF 21 and 24 , are GRANTED. This case is DISMISSED without prejudice and without leave to amend. All pending motions are dismissed as moot. IT IS SO ORDERED. Signed on 3/26/2024 by Judge Adrienne Nelson. (Deposited in outgoing mail to pro se parties on 3/27/2024.) (gw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
DALE EVERETT HARDT and SCOTT WHITISH,
v.

Case No.: 3:23-cv-01980-AN

Plaintiffs,

CITY OF PORTLAND, MINGUS MAPPS, TED
WHEELER, CARMEN RUBIO, DAN RYAN,
and RENE GONZALEZ,

OPINION AND ORDER

Defendants.
Pro se plaintiffs Dale Everett Hardt and Scott Whitish bring this action against defendants
City of Portland (the "City"), Mingus Mapps, Ted Wheeler, Carmen Rubio, Dan Ryan, and Rene Gonzalez,
alleging violations of the Eighth and Fourteenth Amendments and breach of contract. Hardt originally filed
this case in Multnomah County Circuit Court, but defendants removed the case to this Court under federal
question jurisdiction.
On January 8, 2024, Hardt filed a Motion for Preliminary Injunction, ECF [10]. On
February 5, 2024, the City filed a Motion to Dismiss, ECF [21]. On February 12, 2024, the individual
defendants joined the City's Motion to Dismiss, ECF [24]. On March 15, 2024, Hardt filed a Motion to
Expedite, ECF [30], seeking oral argument on the preliminary injunction motion. Because the Court finds
that, after reviewing the parties' pleadings, oral argument will not help resolve the motion for preliminary
injunction, plaintiffs' Motion to Expedite is DENIED. Local R. 7-1(d). Hardt's Motion for Preliminary
Injunction is DENIED. The City's Motion to Dismiss, joined by the individual defendants, is GRANTED.

LEGAL STANDARD
A.

Motion for Preliminary Injunction
A preliminary injunction is an "extraordinary remedy that may only be awarded upon a

clear showing that the plaintiff is entitled to such relief." Winter v. Nat. Res. Def. Council, Inc., 555 U.S.
7, 22 (2008). To obtain a preliminary injunction, the plaintiff must show that: (1) the plaintiff is likely to
1

succeed on the merits; (2) the plaintiff is likely to suffer irreparable harm in the absence of preliminary
relief; (3) the balance of equities tips in the favor of the plaintiff; and (4) an injunction is in the public
interest. Id. at 20. If there are "serious questions going to the merits and a hardship balance that tips sharply
toward the plaintiff," as well as a showing that the plaintiff will suffer irreparable harm and the injunction
is in the public interest, then a preliminary injunction may still issue. All. For The Wild Rockies v. Cottrell,
632 F.3d 1127, 1134-35 (9th Cir. 2011).
B.

Motion to Dismiss
A motion to dismiss for lack of subject matter jurisdiction is properly brought under

Federal Rule of Civil Procedure 12(b)(1) to challenge a plaintiff's Article III standing to bring the case.
Maya v. Centex Corp., 658 F.3d 1060, 1067 (9th Cir. 2011). To establish Article III standing, a plaintiff
must show: "(1) it has suffered an 'injury in fact' that is (a) concrete and particularized and (b) actual or
imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the
defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a
favorable decision." Friends of the Earth, Inc. v. Laidlaw Env't Servs., Inc., 528 U.S. 167, 180-81 (2000).
Each element "must be supported . . . with the manner and degree of evidence required at the successive
stages of the litigation." Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992).
At the motion to dismiss stage, the court "must accept as true all material allegations of the
complaint and must construe the complaint in favor of the complaining party." Warth v. Seldin, 422 U.S.
490, 501 (1975). At the pleading stage, "general factual allegations of injury resulting from the defendant's
conduct may suffice," but "[a] plaintiff must demonstrate standing for each claim he seeks to press and for
each form of relief that is sought." Maya, 658 F.3d at 1068-69 (internal quotation marks omitted).

BACKGROUND
Plaintiffs' claims are related to a street encampment located in Portland, Oregon where
unhoused individuals are presently living. Am. Compl., ECF [15], ¶¶ 1-2. Plaintiffs allege that defendants
have "consistently maintained" the camp "for several years without abatement." Id. ¶ 2. Hardt has spent
"significant amounts of money to fortify his residence" in response to "the unstable and unregulated
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activities of the residents of the camp." Id. Whitish allegedly "was forced to engage in a dangerous
encounter with one resident of the illegal camp which resulted in damage to his vehicle." Id. ¶ 1.
Plaintiffs allege that though it is "illegal to urinate, defecate, or dispose of hazardous waste
in public spaces," defendants have "knowingly housed thousands of individuals in unsafe, unregulated, and
unsupported encampments" that lack "basic necessities" such as "toilets, running water, and trash service."
Id. ¶ 3. Plaintiffs allege that this forces "the campers to spread disease and hazardous waste in areas the
plaintiffs traverse regularly." Id. Plaintiffs allege that a disease, Shigella, 1 has been spreading throughout
the camp and a local business. Id. ¶ 6. Hardt "has a compromised immune system and no longer feels
comfortable entering" the business where a worker contracted the disease. Id.
Plaintiffs allege that "[i]t is illegal to camp in public spaces inside city limits," and have
"consistently requested that the camp . . . be removed," but defendants "have refused to remove it." Id. ¶ 4.
Hardt filed an application on August 25, 2023 with the Parks Department, requesting that Kelly Point Park
be used for "Emergency tent camping." Id. ¶ 9. The request was denied, and Hardt made two more requests
to have the application approved by the city council. Id. Those requests were denied. Id.
During the election period of 2022, plaintiffs allege that defendant Wheeler "announced on
public television that three mass camps would be opened by the end of 2023 that would significantly
eliminate the street camping crisis." Id. ¶ 8. Plaintiffs allege that "[t]his was an intentionally deliberate
promise that [Wheeler] did not fulfill in any significant way." Id.

DISCUSSION
A.

Motion for Preliminary Injunction
Hardt 2 seeks a preliminary injunction that would prohibit defendants from "illegally

housing individuals unsafely on public property in a manner that threatens the plaintiff and the public at

Shigella bacteria can lead to infections called "shigellosis." Shigella – Shigellosis: Questions & Answers, CTRS. FOR
DISEASE CONTROL & PREVENTION, https://www.cdc.gov/shigella/general-information.html (last reviewed Apr. 6,
2023). Generally, individuals with shigellosis improve without antibiotic treatment in five to seven days. Id.
1

Hardt filed the Motion for Preliminary Injunction before Whitish was added as a plaintiff; thus, Whitish is not
represented in the requested injunctive relief.
2

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large." Pl.'s Mot. for Preliminary Inj. ("Pl.'s Mot. for Prelim. Inj."), ECF [10], at 1. Specifically, plaintiff
asks this Court to require defendants to "provide[ ] toilets, running water, or trash services to the illegal
campsites" in Portland, Oregon. Id.
Because plaintiffs seek injunctive relief that would "'order[ ] a responsible party to 'take
action,'" it is a mandatory injunction. Garcia v. Google, Inc., 786 F.3d 733, 741 (9th Cir. 2015) (quoting
Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 879 (9th Cir. 2009)). Mandatory
injunctions are particularly disfavored because they go "well beyond simply maintaining the status quo."
Stanley v. Univ. of S. Cal., 13 F.3d 1313, 1320 (9th Cir. 1994). Thus, a "district court should deny such
relief 'unless the facts and law clearly favor the moving party.'" Id. (quoting Anderson v. United States, 612
F.2d 1112, 1114 (9th Cir. 1979)). Put simply, mandatory injunctions "should not issue in 'doubtful cases.'"
Garcia, 786 F.3d at 740 (quoting Park Vill. Apartment Tenants Ass'n v. Mortimer Howard Tr., 636 F.3d
1150, 1160 (9th Cir. 2011)).
1.

Likelihood of Success on the Merits
Hardt's motion was filed before the Amended Complaint, which added new claims.

However, all parties have treated the Amended Complaint as the operative complaint; therefore, the Court
relies on the claims in the Amended Complaint to assess Hardt's motion. The Amended Complaint asserts
three claims: (1) violation of the Cruel and Unusual Punishment Clause of the Eighth Amendment; (2)
violation of the Equal Protection Clause of the Fourteenth Amendment; and (3) breach of contract. These
claims are addressed in turn.
a.

Eight Amendment Violation

Though the factual basis for this claim is not delineated, the Court understands this claim
to allege that defendants are violating plaintiffs' rights to be free from cruel and unusual punishment by
"forc[ing] human beings to live in camps that do not provide the services that are standard for human
cohabitation," by forcing plaintiffs to "exist in an environment where danger is present in the illegal campers
themselves and the diseases spread by the unsafe housing practices of the [defendants]," and by
"[i]ntentionally refusing to end the threat." Am. Compl. ¶¶ 5, 7. In essence, plaintiffs bring three Eighth
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Amendment claims: one on behalf of those living in the camps, and two on behalf of themselves. However,
these alleged facts are insufficient to establish that the law and facts clearly favor plaintiffs' position.
As for plaintiffs' first claim, defendants aptly point out that plaintiffs likely lack standing
to bring this claim on behalf of unhoused individuals. Under Article III, a plaintiff must show: "(1) . . . an
'injury in fact' that is (a) concrete and particularized and (b) actual or imminent, not conjectural or
hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely,
as opposed to merely speculative, that the injury will be redressed by a favorable decision." Friends of the
Earth, 528 U.S. at 180-81. Here, plaintiffs' alleged injury is based on injuries allegedly experienced by the
unhoused individuals living in the camps. Hardt has not alleged that he is living in a camp in these
conditions. Similarly, though Whitish has indicated that he is presently unhoused, he has stated that he is
living in an RV, not an encampment. Resp. to Defs.' Objs., ECF [31], at 1. Accordingly, neither Hardt nor
Whitish can likely assert camp conditions as an injury under the Eighth Amendment. See Warth, 422 U.S.
at 499 ("[T]he plaintiff generally must assert his own legal rights and interests, and cannot rest his claim to
relief on the legal rights or interests of third parties.").
As for plaintiffs' claim on behalf of themselves, the Eighth Amendment is usually
inapplicable outside of the criminal process. See Ingraham v. Wright, 430 U.S. 651, 664-68 (1977). That
is, Eighth Amendment claims are generally reserved to claims related to "criminal punishments." Id. at
668. Plaintiffs do not allege that they have been charged or convicted with a crime, or that the circumstances
allegedly causing them harm have been imposed upon them by defendants as punishment for a crime. As
such, the law and facts do not clearly favor plaintiffs' positions.
b.

Fourteenth Amendment Violation

The complaint appears to allege that defendants are violating plaintiffs' right to equal
protection under the law by: (1) "Forcing/allowing [the unhoused individuals] to break laws intended to
protect the plaintiffs," such as laws prohibiting "urinat[ing], defecat[ing], or dispos[ing] of hazardous waste
in public spaces"; (2) "effectively protect[ing] and control[ling] the camps" by "intentionally disregard[ing]
various camping bans"; (3) "[i]ntentionally refusing to end the threat"; and (4) denying Hardt's "application
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to have Kelly Point Park used for Emergency tent camping" on the basis that camping is illegal in public
spaces. Am. Compl. ¶¶ 3, 4, 7, 9. In essence, the Court understands plaintiffs' Equal Protection claims to
be based on defendants' allegedly inequitable application of the law.
An Equal Protection claim may be brought under a "lack of enforcement of the law" theory
where "enforcement of the law is done selectively for a discriminatory purpose and with a discriminatory
effect." R.R. 1900, LLC v. City of Sacramento, 604 F. Supp. 3d 968, 977 (E.D. Cal. 2022) (citing Lacy v.
Maricopa Cnty., 693 F.3d 896, 920 (9th Cir. 2012)). To make out such a claim, the plaintiff must allege
that "a law was enforced against the plaintiff, but not against other similarly situated individuals," and that
the defendant enforced the law against the plaintiff "'on the basis of an impermissible ground such as race,
religion or exercise of constitutional rights.'" Id. (quoting Lacy, 693 F.3d at 922).
Plaintiffs have not alleged that defendants enforced any laws against plaintiffs that they
decline to enforce against unhoused individuals. Even if plaintiffs had made such an allegation, they have
not alleged that such selective enforcement was due to a discriminatory purpose or with a discriminatory
effect. Therefore, plaintiffs have not demonstrated that the law and facts clearly favor their position.
c.

Breach of Contract

Finally, plaintiffs allege a breach of contract claim premised on an alleged campaign
promise made by defendant Wheeler during the 2022 election period. Plaintiffs allege that, during his
political campaign, Wheeler "announced on public television that three mass camps would be opened by
the end of 2023 that would significantly eliminate the street camping crisis." Am. Compl. ¶ 8. Plaintiffs
allege that Wheeler's statement was an "intentionally deliberate promise that [Wheeler] did not fulfill in
any significant way," thus, Wheeler committed a "deliberate and negligently deceptive breach of contract
that caused unnecessary harm and trauma." Id.
Generally, a plaintiff bringing a breach of contract claim must show: (1) the existence of a
contract; (2) the relevant contract terms; (3) that the plaintiff fully performed and did not breach the
contract; and (4) that the defendant breached the contract terms resulting in damage to the plaintiff.
Matchniff v. Great Nw. Ins. Co., 224 F. Supp. 3d 1119, 1124 (D. Or. 2016). As alleged, the Court
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understands plaintiffs' breach of contract claim to arise under a promissory estoppel theory because
plaintiffs do not allege the existence of a written contract or traditional contractual remedies. See Neiss v.
Ehlers, 135 Or. App. 218, 228, 899 P.2d 700 (1995).
A promissory estoppel theory still requires the existence of an enforceable promise. Glob.
Exec. Mgmt. Sols., Inc. v. Int'l Bus. Machs. Corp., 260 F. Supp. 3d 1345, 1381 (D. Or. 2017). Plaintiffs
have not alleged facts that support the inference that Wheeler made this statement specifically to plaintiffs
such that he would have "reasonably foresee[n]" that his statement "would induce conduct of the kind that
occurred." Id. Rather, plaintiffs' base their claim on a statement that Wheeler made on television to a large,
unknown audience in the course of a political campaign. Plaintiffs provide no legal authority for the
proposition that political statements made during election campaigns constitute enforceable promises;
indeed, courts have long held that such statements are not enforceable promises under similar theories. See
St. John's United Church of Christ v. F.A.A., 550 F.3d 1168, 1170 (D.C. Cir. 2008) (noting that political
promises have "no legal force whatsoever"); East Side Plating, Inc. v. City of Portland, No. 3:18-cv-01664YY, 2019 WL 3979658, at *6 (D. Or. July 11, 2019) (holding that statements made by city commissioners
were "political promises" not enforceable promises); Weinstein v. Trump, No. 17 Civ. 1018 (GBD), 2017
WL 6544635, at *4 n.5 (S.D.N.Y. Dec. 21, 2017) ("[O]nce a candidate is elected to office, it is for the
politicians and the people they represent—not the courts—to decide which campaign promises will be
fulfilled and which will become abandoned rhetoric."); United States v. Washington, 887 F. Supp. 2d 1077,
1100 (D. Mont. 2012) (holding that "public statements were not promises but rather statements of principle
and intent in the political realm" (internal quotation marks omitted)); Berg v. Obama, 574 F. Supp. 2d 509,
529 (E.D. Penn. 2008) ("[O]ur political system could not function if every political message articulated by
a campaign could be characterized as a legally binding contract enforceable by individual voters."); May v.
Kennard Indep. Sch. Dist., No. 9:96-CV-256, 1996 WL 768039, at *7 (E.D. Tex. Nov. 22, 1996) ("A
political campaign promise is legally insufficient to create a binding contract unless it is so intended by the
promisor and promisee.").

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Because plaintiffs have not alleged facts indicating the existence of an enforceable promise,
they have not demonstrated that the law and facts clearly favor their position.
2.

Remaining Winter Factors
Because plaintiffs have failed to meet the threshold showing that the facts and law clearly

favor their positions, this Court need not consider the other preliminary injunction factors. California v.
Azar, 911 F.3d 558, 575 (9th Cir. 2018). Plaintiffs have not established that they are entitled to the
"extraordinary remedy" of a preliminary injunction.
B.

Motions to Dismiss 3
Defendants move to dismiss the complaint with prejudice on two bases: (1) plaintiffs have

not alleged facts that could establish standing; and (2) in the alternative, plaintiffs have failed to state a
claim upon which relief can be granted. Defendants also request that the Court take judicial notice of filings
made in Hardt v. City of Portland, No. 3:21-cv-01515-MO, a case that Hardt initiated in 2021, which was
dismissed, sua sponte by the court. Defendants' request is granted, and the Court takes judicial notice of
Exhibits 3, 4, and 5 attached to the Declaration of Elsa Haag ("Haag Decl."), ECF [17]. See Swartz v.
KPMG LLP, 476 F.3d 756, 763 (9th Cir. 2007) ("In ruling on a 12(b)(6) motion, a court may generally
consider . . . matters properly subject to judicial notice."). Because the Court finds the standing argument
dispositive, it declines to address defendants' arguments on failure to state a claim.
As stated previously, to establish standing under Article III, a plaintiff must show:
"(1) . . . an "injury in fact" that is (a) concrete and particularized and (b) actual or imminent, not conjectural
or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely,
as opposed to merely speculative, that the injury will be redressed by a favorable decision." Friends of the

As a housekeeping matter, Hardt filed a response to the City's motion to dismiss, and the individual defendants'
joinder of that motion. Neither response was signed by Whitish. Whitish signed the amended complaint and stated
that he "appoint[ed] Dale Hardt as the legal representative of this case with full authority to make all filings, accept
service, and make settlements on my behalf." Am. Compl. 5. However, Hardt is, to the Court's knowledge, not a
licensed attorney authorized to provide legal representation, and Federal Rule of Civil Procedure 11(a) requires that
"[e]very pleading, written motion, and other paper must be signed . . . by a party personally if the party is
unrepresented." Because Whitish did not sign either response to the motions to dismiss, the Court construes all
arguments within the responses as solely made by Hardt.
3

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Earth, 528 U.S. at 180-81. In the absence of Article III standing, a federal court lacks subject matter
jurisdiction over the suit. Cetacean Cmty. v. Bush, 386 F.3d 1169, 1174 (9th Cir. 2004).
Defendants argue that plaintiffs cannot establish standing because plaintiffs have not
shown that they suffered an injury, or that any alleged injury is fairly traceable to defendants. An "injury
in fact" is an invasion of a plaintiff's legally protected interest that is "concrete and particularized," and
"actual or imminent." Friends of the Earth, 528 U.S. at 180. A "particularized" injury "must affect the
plaintiff in a personal and individual way." Spokeo, Inc. v. Robins, 578 U.S. 330, 339 (2016) (internal
quotation marks omitted). A "concrete" injury "must actually exist," meaning abstract or theoretical
concerns do not constitute injuries. Id. Alleged injuries are not fairly traceable to a defendant's actions if
they are "the result of independent action of some third party not before the court." Defs. of Wildlife, 504
U.S. at 560. Further, the "fairly traceable" element requires more than a showing of a "chain of speculative
contingencies" to establish standing. Lee v. State of Oregon, 107 F.3d 1382, 1389 (9th Cir. 1997).
Defendants identify plaintiffs' alleged harms as: (1) Whitish's windshield being broken by
a "resident of the illegal camp"; Hardt's incurred costs to "'fortify his residence'"; (3) Hardt's cost of
purchasing tennis shoes to "'chase down thieves stealing packages and running to the safety of the camp'";
and (4) Hardt's "generalized heightened risk of contracting shigella." Defs.' Mot. to Dismiss ("Defs.' Mot."),
ECF [21], at 11 (quoting Am. Compl. ¶¶ 1,2). Defendants argue that, though Whitish's alleged harm may
constitute an injury in fact, it is not fairly traceable to defendants, and Hardt's alleged harms are unrelated
to any legally protected interest and identify only a general concern about the risk of hypothetical future
harm. Further, to the extent plaintiffs allege harms related to the general public or unhoused individuals,
defendants argue that these are not particularized harms because they do not personally and individually
affect plaintiffs.
Defendants also argue that plaintiffs' alleged harms are not fairly traceable to defendants'
actions because the allegations rely on the claim that the City is "'housing' individuals and 'maintain[ing]'
the illegal camp at North Lombard and Montana and that residents of that camp caused the alleged harms."
Defs.' Mot. 12. Defendants deny maintaining unsanctioned campsites on sidewalks or other public property
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and argue that the specific encampment mentioned in the complaint is actually located on property owned
by the State of Oregon—not the City. Further, defendants argue that they cannot be held liable for the
"independent action(s) of third parties not before the court." Id. at 13.
As an initial matter, the Court acknowledges that plaintiffs have not clearly articulated
which alleged harms are associated with each federal claim. Because pro se pleadings are to be construed
liberally, the Court considers the alleged harms in the context of both constitutional claims, as applicable.
Plaintiffs' alleged harms can be distilled into three categories: (1) harms allegedly suffered by nonparties;
(2) harms allegedly suffered by plaintiffs from unhoused individuals' conduct; and (3) harms allegedly
suffered by plaintiffs from defendants' direct conduct.
1.

Nonparties' Alleged Harms
The Court agrees that the alleged harms that plaintiffs contend are experienced by

unhoused individuals or the general public are insufficient to confer standing. The Court has already
highlighted that "[a] plaintiff . . . cannot rest his claim to relief on the legal rights or interests of third
parties." Warth, 422 U.S. at 499. Although Hardt argues that "every citizen of the United States of America
has an obligation to Uphold and Defend the United States Constitution," Hardt's Resp. to Mot to Dismiss
("Hardt's Resp."), ECF [25], at 3, a litigant raising only a general "grievance about government—claiming
only harm to his and every citizen's interest in proper application of the Constitution and laws, and seeking
relief that no more directly and tangibly benefits him than it does the public at large—does not state an
Article III case or controversy," Defs. of Wildlife, 504 U.S. at 573-74.
2.

Plaintiffs' Alleged Harms from Unhoused Individuals
The Court also agrees that the vast majority of conduct that plaintiffs allege directly caused

them harm derives from the actions of unhoused individuals, not defendants. Assuming, without deciding,
that plaintiffs could assert an injury in fact based on unhoused individuals' conduct, Hardt has not
demonstrated that such conduct is fairly traceable to defendants. Although Hardt argues that defendants
"control" the camps and "intentionally prevent" removal of camps, he has not demonstrated that defendants
encouraged, instigated, or otherwise enabled the unhoused individuals' conduct. Hardt's.' Resp. 1, 3; see
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Hunters Cap. LLC v. City of Seattle, 499 F. Supp. 3d 888, 902 (W.D. Wash. 2020) (holding that "the City's
affirmative actions exposed [plaintiffs] to actual, particularized harm that they otherwise would not have
faced" (emphasis added)). Put another way, Hardt has not shown that defendants acted in a manner that
would diminish or undermine the independence of the unhoused individuals' actions. Thus, plaintiffs'
alleged harms derived from unhoused individuals' actions are insufficient to establish standing in this case.
3.

Plaintiffs' Alleged Harm from Defendants' Conduct
Finally, Hardt argues that defendants' specific conduct causes plaintiffs harm, arguing that

"defendants' failure to remove the camp allowed dangerous individuals to reside illegally in close proximity
to the plaintiffs" and caused plaintiffs "extreme emotional distress," as well as the economic losses detailed
above. Hardt's Resp. 1, 5. Put succinctly, Hardt argues that defendants failed to enforce "the law [that]
says the camp is illegal" by "remov[ing] the illegal encampment." Id. at 4. This, too, is an insufficient
basis to establish standing.
An "asserted right to have the Government act in accordance with law is not sufficient,
standing alone, to confer jurisdiction on a federal court." Allen v. Wright, 468 U.S. 737, 754 (1984). This
is, in part, because a private citizen "lacks a judicially cognizable interest in the prosecution . . . of another"
and thus "lacks standing to contest the policies of the prosecuting authority when he himself is neither
prosecuted nor threatened with prosecution." United States v. Texas, 599 U.S. 670, 677 (2023) (quoting
Linda R. S. v. Richard D., 410 U.S. 614, 619 (1973)).
Plaintiffs have not alleged that they themselves have been prosecuted, or threatened with
prosecution, under any of the laws that they allege defendants are not enforcing against unhoused
individuals. As such, plaintiffs' alleged harms connected to defendants' alleged failure to enforce the law
are insufficient to establish standing to bring this case, and, thus, this Court lacks subject matter jurisdiction
to hear plaintiffs' federal claims.
C.

Supplemental Jurisdiction
Having determined that this Court lacks subject matter jurisdiction over plaintiffs' federal

claims, plaintiffs' breach of contract claim remains. When a district court has dismissed all claims over
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which it has original jurisdiction, it may decline to exercise supplemental jurisdiction over any remaining
state law claims. 28 U.S.C. § 1367(c)(3). If the federal claims are dismissed before trial, the district court
must consider "judicial economy, convenience, fairness, and comity" to determine whether exercising
supplemental jurisdiction over the remaining state law claims is appropriate. Carnegie-Mellon Univ. v.
Cohill, 484 U.S. 343, 350 n.7 (1988). Usually, those factors "will point toward declining to exercise
jurisdiction over the remaining state-law claims." Id. Having considered the relevant factors, the Court
declines to exercise its supplemental jurisdiction in this case.
Two final matters must be addressed. First, defendants seek dismissal with prejudice.
Generally, dismissal for lack of subject matter jurisdiction should be made without prejudice. Missouri ex
rel. Koster v. Harris, 847 F.3d 646, 656 (9th Cir. 2017). The Ninth Circuit has maintained this rule, even
when dismissal is based on lack of standing, because "the merits have not been considered" before dismissal
and "[p]laintiffs could allege post-effective-date facts that might support standing." Id. Defendants provide
little explanation for requesting that this case be dismissed with prejudice, though they note that Hardt's
2021 action in federal court was dismissed with prejudice. Defs.' Mot. 6; Haag Decl, Ex. 5. However, the
2021 action was dismissed with prejudice after Judge Mosman found Hardt's allegations "to be without any
basis in law or fact." Haag Decl., Ex. 5, at 1. As such, that dismissal was based on a consideration of the
merits of Hardt's claims. In light of Ninth Circuit precedent, the Court declines to dismiss plaintiffs' case
with prejudice, but will deny leave to amend because, at this time, no amendment to the complaint could
establish standing.
The second issue is raised by Hardt. At various points in his response, Hardt indicates that
he believes dismissal would be inappropriate because plaintiffs would not have an opportunity to "stand
before a jury to present their case" or have their case "reviewed before a jury," and there are matters that he
believes are appropriate for a jury determination. Hardt's Resp. 2-5. The Court understands Hardt's beliefs
to be based on the right to a jury trial enumerated in the Seventh Amendment.
While the Seventh Amendment undoubtedly confers such a right, it is not unequivocal.
The Court has determined that it lacks subject matter jurisdiction to hear this case. When a federal court
12

lacks subject matter jurisdiction, it "cannot proceed at all in any cause." Steel Co v. Citizens for a Better
Env't., 523 U.S. 83, 94 (1998) (internal quotation marks omitted). "Jurisdiction is power to declare the law,
and when it ceases to exist, the only function remaining to the court is that of announcing the fact and
dismissing the cause." Id. (internal quotation marks omitted). Put simply, this case cannot proceed to a
jury trial because this Court lacks authority to continue adjudicating it and is required to dismiss the case.

CONCLUSION
Accordingly, Hardt's Motion for Preliminary Injunction, ECF [10], is DENIED, and
defendants' Motions to Dismiss, ECF [21] and [24], are GRANTED. This case is DISMISSED without
prejudice and without leave to amend. All pending motions are dismissed as moot.

IT IS SO ORDERED.
DATED this 26th day of March, 2024.
______________________
Adrienne Nelson
United States District Judge

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