Patterson et al v. Rawlings et al
MEMORANDUM OPINION AND ORDER granting 18 MOTION to Dismiss for Lack of Jurisdiction, filed by Scott Griggs, Mark Clayton, Ricky Callahan, Kevin Felder, Adam McGough, Adam Medrano, Casey Thomas, II, Dwayne Carraway, Sandy Greyson, Jenn ifer Gates, Omar Narvaez, Mike Rawlings, Manny Pelaez, Tennell Atkins, Phillip Kingston, Lee Kleinman; denying 23 Motion to Strike filed by Texas Division Sons of Confederate Veterans Inc, Hiram Patterson; denying 26 Motion to Amend/C orrect, Motion to Strike filed by Hiram Patterson; denying 36 Motion to Strike filed by Scott Griggs, Mark Clayton, Ricky Callahan, Kevin Felder, Adam McGough, Adam Medrano, Sandy Greyson, Dwayne Carraway, Casey Thomas, II, Jennifer Gates, Omar Narvaez, Manny Pelaez, Mike Rawlings, Tennell Atkins, Phillip Kingston, Lee Kleinman; and denying 37 Motion for Sanctions filed by Hiram Patterson, (Ordered by Judge Sidney A Fitzwater on 2/7/2018) (Judge Sidney A Fitzwater)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
HIRAM PATTERSON and TEXAS
DIVISION, SONS OF CONFEDERATE §
MIKE RAWLINGS, In His Official
Capacity as Mayor of the City of Dallas, §
Civil Action No. 3:17-CV-2361-D
The court must decide whether plaintiffs have standing to challenge the City of
Dallas’ (“City’s”) removal of a statue of General Robert E. Lee from City property and to
bring claims related to the removal of other Confederate monuments and to title to two
cemeteries located within the City of Dallas. Concluding that plaintiffs lack standing, the
court grants defendants’ motion to dismiss under Fed. R. Civ. P. 12(b)(1) and dismisses this
action without prejudice by judgment filed today.
In 2017 the City’s Mayor and City Council adopted a resolution (“Resolution”)
directing the City Manager to immediately remove the Alexander Phimster Proctor
monument of Robert E. Lee at Lee Park (“Lee Statue”), located on City property, and safely
store it until a mayoral task force (“Task Force”) could make recommendations concerning
the statue’s disposition. The Resolution authorized the City Manager to transfer funds or
appropriate funds from excess revenue to remove the Lee Statue and to take appropriate
actions to seek private funding to reimburse the expenses associated with this action.
The same day the Resolution was adopted, plaintiffs Hiram Patterson (“Patterson”)
and Texas Division, Sons of Confederate Veterans, Inc. (“SCV”) filed this lawsuit against
the Mayor and City Council, in their official capacities, alleging violations of plaintiffs’
constitutional rights to free speech and due process and seeking a temporary restraining order
(“TRO”) preventing the removal of the Lee Statue and Confederate monuments at Pioneer
Park in Dallas. The court temporarily restrained the removal of the Lee Statue. At the
conclusion of a hearing held the following day, the court concluded that plaintiffs had failed
to show that they were entitled to a restraining order and dissolved the TRO.
A few days after the court dissolved the TRO, the City removed the Lee Statue and
placed it in storage. Plaintiffs then filed an amended complaint and a second amended
complaint (“SAC”). In the SAC, plaintiffs bring a claim under 42 U.S.C. § 1983 for alleged
violations of their First Amendment free speech rights. They also assert that the City
breached SCV’s copyright interest in the Lee Statue; that the City breached the reversionary
term in the grant of title in the Pioneer Park Cemetery; and that title to the Confederate
Cemetery resides in the SCV because title was never delivered, and the City has not
exercised possession of the property. Plaintiffs seek damages and declaratory and injunctive
Defendants now move under Rules 12(b)(1) and 12(b)(6) to dismiss the SAC.1
Plaintiffs oppose the motion.
The court first considers defendants’ motion to dismiss under Rule 12(b)(1) for lack
“[T]he requirement that a claimant have ‘standing is an essential and unchanging part
of the case-or-controversy requirement of Article III.’” Davis v. Fed. Election Comm’n, 554
U.S. 724, 733 (2008) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)).
Standing “involves both constitutional limitations on federal-court jurisdiction and prudential
limitations on its exercise.” Warth v. Seldin, 422 U.S. 490, 498 (1975).
It is well-settled that “the irreducible constitutional minimum of standing contains
three elements.” Lujan, 504 U.S. at 560. These elements are (1) an injury-in-fact that is
concrete and actual or imminent, not hypothetical; (2) a fairly traceable causal link between
the injury and the defendant’s actions; and (3) that the injury will likely be redressed by a
favorable decision. See, e.g., Bennett v. Spear, 520 U.S. 154, 167 (1997); Little v. KPMG
LLP, 575 F.3d 533, 540 (5th Cir. 2009). To obtain injunctive relief, a plaintiff must be
“likely to suffer future injury.” City of L.A. v. Lyons, 461 U.S. 95, 105 (1983). “Past
Several other motions are currently pending, see infra § V, including plaintiffs’
motion for preliminary injunction. Because the court is dismissing this action today under
Rule 12(b)(1) for lack of standing, it denies plaintiffs’ motion for a preliminary injunction.
exposure to illegal conduct does not in itself show a present case or controversy regarding
injunctive relief[.]” O’Shea v. Littleton, 414 U.S. 488, 495 (1974). The threat of future
injury to the plaintiff “must be both real and immediate, not conjectural or hypothetical.”
Lyons, 461 U.S. at 102 (internal quotation marks and citations omitted).
Prudential standing, by contrast, does not emanate from the Constitution, and it
instead “embodies ‘judicially self-imposed limits on the exercise of federal jurisdiction.’”
Cibolo Waste, Inc. v. City of San Antonio, 718 F.3d 469, 474 (5th Cir. 2013) (quoting Elk
Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 11 (2004)). The doctrine asks
whether a plaintiff’s grievance arguably falls within the zone of
interests protected by the statutory provision invoked in the suit,
whether the complaint raises abstract questions or a generalized
grievance more properly addressed by the legislative branch,
and whether the plaintiff is asserting his or her own legal rights
and interests rather than the legal rights and interests of third
Ass’n of Cmty. Orgs. for Reform Now v. Fowler, 178 F.3d 350, 363 (5th Cir. 1999).
When challenging subject matter jurisdiction under Rule 12(b)(1), a party can make
a facial attack or a factual attack. See Paterson v. Weinberger, 644 F.2d 521, 523 (5th Cir.
May 1981). If the party merely files its Rule 12(b)(1) motion, it is considered a facial attack,
and the court looks only at the sufficiency of the allegations in the pleading and assumes
them to be true. Id. If the allegations are sufficient to allege jurisdiction, the court must deny
the motion. Id. This is akin to a Rule 12(b)(6) motion in that the “pleading’s allegations are
presumed to be true, and ‘[i]f those allegations sufficiently allege a claim for recovery the
complaint stands and the federal court must entertain the suit.’” Vinmar Overseas, Ltd. v.
OceanConnect, LLC, 2012 WL 3599486, at *4 (S.D. Tex. Aug. 20, 2012) (quoting Jones v.
SuperMedia Inc., 281 F.R.D. 282, 286 (N.D. Tex. 2012) (Boyle, J.)).
A party can also make a factual attack on subject matter jurisdiction by submitting
evidence, such as affidavits or testimony. IBEW-NECA Sw. Health & Benefit Fund v.
Winstel, 2006 WL 954010, at *1 (N.D. Tex. Apr. 12, 2006) (Fitzwater, J.) (citing Paterson,
644 F.2d at 523). “A factual attack on the subject matter jurisdiction of the court . . .
challenges the facts on which jurisdiction depends and matters outside of the pleadings, such
as affidavits and testimony, are considered.” Vinmar Overseas, 2012 WL 3599486, at *4
(quoting Oaxaca v. Roscoe, 641 F.2d 386, 391 (5th Cir. Unit A April 1981)). The “court is
free to weigh the evidence and satisfy itself as to the existence of its power to hear the case.”
Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. May 1981). “[N]o presumptive
truthfulness attaches to plaintiff’s allegations, and the existence of disputed material facts
will not preclude the trial court from evaluating for itself the merits of jurisdictional claims.”
Id. The plaintiff in a factual challenge, as the party seeking to invoke jurisdiction, must
“submit facts through some evidentiary method and . . . prov[e] by a preponderance of the
evidence that the trial court does have subject matter jurisdiction.” Paterson, 644 F.2d at
The court begins with defendants’ contention that the evidence establishes that
plaintiffs lack standing, which constitutes a factual attack on the court’s subject matter
The court first considers plaintiffs’ copyright claim. In the SAC, plaintiffs allege:
[w]hen the City removed the [Lee Statue], it separated the
pedestal from the bronze monument that had been one integral
design of the sculptor and had been intended to remain in
perpetuity. The City intentionally and with gross negligence
destroyed and mutilated an artistic work of recognized
international stature, thereby, infringing the sculptor’s estate’s
SAC ¶ 23; see also id. ¶ 35 (“Defendants willfully infringed the Proctor Estate’s copyrighted
work.”). In support of their request for preliminary injunction, plaintiffs contend that “the
Proctor Estate has [the] copyright, has orally agreed to assignment of title to the SCV, and
defendants have infringed [the] copyright by damaging the [Lee Statue], as well as removing
the Monument from permanent public display in Lee park.” Id. ¶ 62 (footnote omitted). In
a footnote, plaintiffs contend that SCV and the Proctor Estate “are negotiating a written
assignment of the Estate’s copyright interest to the SCV.” Id. ¶ 62 n.7.
Defendants move to dismiss plaintiffs’ copyright claim, contending that plaintiffs do
not have even a potential interest in the copyright to the Lee Statue. In support, defendants
cite an email from Laura Proctor Ames (“Ames”), on behalf of the Proctor Foundation, in
which Ames states that “the Proctor Foundation is not involved with any legal complaint
against the City of Dallas,” Ds. App. 42, does not approve of being included in the SAC, and
is “not in any way connected to the attorney who prepared [the SAC], or the organization
filing the complaint,” id. Ames also states that she had spoken with plaintiffs’ attorney “and
he acknowledged we were included without our approval and agreed to remove us
immediately.” Id. Defendants contend that this evidence establishes plaintiffs’ lack of
standing for any claimed copyright violation.
Plaintiffs do not respond to defendants’ motion to dismiss their copyright claim, do
not dispute defendants’ evidence that SCV has no interest or even potential interest in the
copyright to the Lee Statue, and do not offer any evidence that would demonstrate that they
suffered any injury-in-fact as a result of any alleged copyright violation. “[O]nly two types
of claimants have standing to sue for copyright infringement under the Copyright Act: (1)
owners of copyrights, and (2) persons who have been granted exclusive licenses by owners
of copyrights.” Isbell v. DM Records, Inc., 2004 WL 1243153, at *4 (N.D. Tex. June 4,
2004) (Fish, C.J.). The undisputed evidence shows that plaintiffs do not own the copyright
to the Lee Statue, have not been granted an exclusive license by the copyright owner, and are
not in the process of negotiating any such ownership or license rights. Accordingly, the court
grants defendants’ motion to dismiss plaintiffs’ copyright claim alleged in count 1 of the
The court now turns to plaintiffs’ claim that defendants breached the reversionary
Defendants also make a facial attack on plaintiffs’ copyright claim, contending that
plaintiffs have failed to allege an injury in fact, to allege causation between defendants’
action and any claimed injury, and to allege how any claimed injury would be redressed by
a favorable decision. The court agrees that plaintiffs have failed to plead standing with
respect to their copyright claim.
term in the grant of title in the Pioneer Park Cemetery.
In count 3 of the SAC, plaintiffs allege that the City took title to Pioneer Park
Cemetery from Tannehill Lodge No. 52 and Dallas Lodge No. 44 (the “Lodges”), with the
understanding that the City would “use and maintain” the property as a “Memorial Cemetery
Park.” SAC ¶ 53. Plaintiffs assert that, by publicly announcing that it would remove the
Confederate War Memorial in Pioneer Park Cemetery, the City “refus[ed] and fail[ed] to use
the memorial park for the purpose mandated in the transfer of title to the City,” and that, as
a result, title must revert to the Lodges. Id. ¶¶ 53, 55. Without citing supporting authority,
plaintiffs request that the court “[e]nter judgment that quiets title to Pioneer Cemetery Park
in favor of plaintiffs.” Id. ¶ 71(f).
Defendants move to dismiss count 3, contending that plaintiffs have failed to allege,
and there is no supporting evidence, that any of the Lodges’ interests or rights was ever
transferred to plaintiffs; that Dallas Lodge No. 44 expressly denies conveying any interest
to plaintiffs, Ds. App. 133-34; that plaintiffs do not allege that the Confederate monument
is located on the property previously owned by the Lodges (and the documents located so far
indicate that it was not placed on the local Lodges’ former property); and that the evidence
therefore establishes that plaintiffs lack standing for any claimed interest in Pioneer
As with plaintiffs’ copyright claim, they have failed to respond to defendants’ motion
to dismiss count 3. Because plaintiffs have neither pleaded nor introduced any evidence
showing that they have any interest in Pioneer Cemetery Park, the court grants defendants’
motion to dismiss count 3 based on plaintiffs’ lack of standing.3
The court next considers plaintiffs’ claim for a judgment quieting title to the
In count 4 of the SAC, plaintiffs allege that the Sterling Price Camp of the United
Confederate Veterans—to which SCV is the successor association—gave the Confederate
Cemetery to the Dallas Parks and Recreation Department in 1936. They assert that, because
no record exists of conveyance of title, title still resides with the grantor—the SCV—and
they request that the court enter judgment quieting title to the Confederate Cemetery in their
Defendants move to dismiss count 4, contending that plaintiffs lack standing. They
have produced evidence that, contrary to plaintiffs’ allegations, the property was conveyed
to the City on November 17, 1936, and the warranty deed was recorded in the Dallas County
As with plaintiffs’ copyright claim, defendants also mount a facial challenge to
plaintiffs’ claim related to Pioneer Cemetery Park. Defendants contend that plaintiffs do not
allege any relationship to the original grantors or otherwise explain how they have any rights
or interest in the property; fail to allege that the monument is even located on the property
formerly owned by the Lodges; and fail to allege how removing a monument that was moved
to the property after its transfer to the City violates maintaining the property as a memorial
cemetery park. In sum, defendants posit that plaintiffs have failed to allege an injury in fact,
causation, or that any claimed injury would be redressed by a favorable decision. The court
agrees with these grounds for defendants’ motion and holds that plaintiffs have failed to
plead standing with respect to count 3.
land records4; that, contrary to the allegations in the SAC, the City has performed the
mowing, maintenance, and litter removal at the cemetery and has not authorized or approved
anyone else’s taking such action at the Confederate Cemetery; and that Sterling Price Camp
Number 31, a unit of United Confederate Veterans, became inactive in 1917, SCV was not
formed until 2001, and none of SCV’s corporate filings suggests that it is a successor to
Sterling Price Camp Number 31.
Plaintiffs do not respond to defendants’ motion to dismiss count 4. Because plaintiffs
have failed to introduce any evidence that they have an interest in the Confederate Cemetery,
the court grants defendants’ motion under Rule 12(b)(1) to dismiss count 4 on the ground that
plaintiffs lack standing.5
The court now turns to defendants’ contention—framed as a facial challenge to this
court’s subject matter jurisdiction—that plaintiffs lack standing to bring a First Amendment
Defendants contend that plaintiffs have misstated a question and answer page from
the Mayor’s Task Force. Defendants maintain that plaintiffs allege that certain statements
are admissions of non-ownership when, in fact, the actual statements are that, as of the time
the questions and answers were written, there was no official action found accepting the
cemetery, but that further research was ongoing.
Defendants also bring a facial challenge to plaintiffs’ quiet title action in the
Confederate Cemetery. They contend that plaintiffs have not alleged a plausible basis for
their ownership of, or any legal interest in, the Confederate Cemetery; that plaintiffs do not
plausibly allege any basis to believe they have any of the rights of the Sterling Camp Number
31; and that plaintiffs do not allege any type of injury from the supposed lack of filing of the
record of conveyance. The court agrees and holds for these and the reasons discussed above
that plaintiffs lack standing to assert the claim alleged in count 4.
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Defendants maintain that plaintiffs’ First Amendment claim must be dismissed
because plaintiffs do not allege any concrete and particularized or actual or imminent injury
that has occurred or will occur to them caused by moving the Lee Statue or any other action
by the City regarding its other property; plaintiffs do not plead how their injuries are different
or distinct from the general public’s; and, to the extent Patterson asserts standing based on
his status as a city taxpayer, he has not alleged and cannot demonstrate facts that would
support a suit in that narrowly-prescribed capacity.
Plaintiffs respond6 that, as a resident taxpayer of the City, Patterson has standing to
challenge the City’s allegedly unconstitutional removal and planned removal of Confederate
monuments; that plaintiffs have suffered a concrete injury-in-fact because the City has
removed the Lee Statue and is planning to remove the Confederate War Memorial in Pioneer
Park Cemetery, the Confederate Memorial in Confederate Cemetery, and the Confederate
public art in Fair Park, which has infringed and will infringe plaintiffs’ political viewpoint
communicated by the monuments; that their injury is particularized because it is distinct from
any effect on the general public, and SCV membership is limited in number and restricted
to males who can prove descent from, and blood kinship with, Confederate veterans; that
Although plaintiffs’ brief is entitled “plaintiffs’ reply brief for motions for
preliminary injunction & declaratory judgment,” the brief is in substance a response to
defendants’ motion to dismiss. Accordingly, the court will therefore treat it as a response
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SCV and its members were uniquely injured because they have a dissenting political
viewpoint that was communicated by the Lee Statue; that the City has imputed repugnant
(and erroneous) political viewpoints onto the Lee Statue; and the City’s imminent plans to
remove other Confederate monuments will have the identical effect that the City’s removal
of the Lee Statue had, i.e., impairment of viewpoint and denial of free speech.
Defendant argue in reply that the court should not consider allegations in plaintiffs’
response that are not pleaded in the SAC; that the removal of the Lee Statue and other
Confederate monuments is government speech to which the First Amendment Free Speech
Clause does not apply, and because no possible infringement of free speech is alleged, no
possible harm is alleged and plaintiffs lack standing; that plaintiffs do not allege that they
have been restricted in any way from exercising their First Amendment rights; and that
plaintiffs’ claim of harm is only a generalized grievance since plaintiffs do not assert that
they have ever visited or ever saw any of the City’s Confederate symbols.
The court first addresses whether Patterson has standing.
Defendants argue that Patterson lacks standing because he has not suffered an injuryin-fact. Reduced to its essence, plaintiffs’ responsive argument appears to be that, because
Patterson holds the political viewpoint that “the men who fought for the Confederacy in the
Civil War deserve our respect,” Ps. Br. 9, and because the Confederate monuments at issue
also communicate the same viewpoint, the removal of these monuments from City property
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somehow infringes Patterson’s First Amendment rights.
The court acknowledges that “[t]he loss of First Amendment freedoms, for even
minimal periods of time, unquestionably constitutes irreparable injury” sufficient to satisfy
Article III’s standing requirement. Id. at 8 (quoting Elrod v. Burns, 427 U.S. 347, 373
(1976)). In this case, however, plaintiffs have not alleged that Patterson has been deprived
of any First Amendment freedom for any period of time. Plaintiffs contend that Patterson
holds the political viewpoint that “the men who fought for the Confederacy in the Civil War
deserve our respect.” Id. at 9. But they do not allege that the City has ever taken any action
that would prevent Patterson from expressing this political view. They have at most alleged
that Patterson shares the political viewpoint communicated to the general public by the
Confederate monuments. This allegation, however, does not explain how the removal of
Confederate monuments from City-owned property prevents Patterson from expressing his
political viewpoint. See, e.g., Serra v. U.S. Gen. Servs. Admin., 847 F.2d 1045, 1049 (2d Cir.
1988) (noting that “the Government’s action in this case [(removing a sculpture from a
federal plaza)] is limited to an exercise of discretion with respect to the display of its own
property” and that “nothing GSA has done here encroaches in any way on Serra’s or any
other individual’s right to communicate.”). Plaintiffs have failed to cite any case in which
a plaintiff’s agreement with the message conveyed by someone else’s speech—here, the
City’s—transforms that speech into the plaintiff’s speech for First Amendment standing
purposes. Accordingly, the court concludes that plaintiffs have failed to plausibly allege that
the City’s removal of the Lee Statue and forthcoming removal of other Confederate
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monuments infringes Patterson’s First Amendment free speech rights.
Patterson also lacks taxpayer standing. Plaintiffs do not actually plead taxpayer
standing in the SAC: they allege only that Patterson “is a citizen of the State of Texas, a
resident taxpayer of Dallas, and a descendant of Confederate veterans.” SAC ¶ 1.7 In their
response, however, plaintiffs contend that “[s]ince Mr. Patterson is a resident taxpayer in the
City of Dallas and he has contested that the removal and planned removal of the Confederate
Monuments is unconstitutional, Mr. Patterson has taxpayer standing in this matter.” Ps. Br.
7. The court disagrees.
It is insufficient for plaintiffs merely to allege that Patterson is a taxpayer and that the
City’s conduct is unconstitutional.8 “A plaintiff [only] meets the ‘injury’ requirement of
municipal taxpayer standing if he shows that ‘he pays taxes to the relevant entity’ and ‘tax
revenues are expended on the disputed practice.’” Ehm v. San Antonio City Council, 269
Fed. Appx. 375, 377 (5th Cir. 2008) (per curiam) (citing Doe v. Duncanville Indep. Sch.
Dist., 70 F.3d 402, 408 (5th Cir. 1995); Cammack v. Waihee, 932 F.2d 765, 770 (9th Cir.
1991)); see also Freedom From Religion Found. v. Zielke, 845 F.2d 1463, 1470 (7th Cir.
1988) (stating that “[a] plaintiff’s status as a municipal taxpayer is irrelevant for standing
Moreover, plaintiffs do not allege that Patterson actually paid any taxes to the City
of Dallas. See SAC ¶ 1.
The court assumes arguendo, for purposes of Patterson’s taxpayer standing
arguments, that the City’s removal of Confederate monuments is unconstitutional.
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purposes if no tax money is spent on the allegedly unconstitutional activity.”); Shea v.
Brister, 26 F.Supp.2d 943, 945 (S.D. Tex. 1998) (holding that plaintiff’s status as taxpayer
did not confer standing where no “expenditure of public revenues [was] utilized in
connection with the acquisition, installation, preservation, maintenance, or display of the
copy of the Ten Commandments” and there was a “total absence of any connection between
public funds and the display challenged.”).
In the SAC, plaintiffs allege that the Resolution “directs the city manager to transfer
funds to remove all public Confederate monuments.” SAC ¶ 31. But what the Resolution
actually states9 is that the City Manager is authorized to transfer or appropriate funds from
excess revenue to remove the Lee Statue, and that he is to seek private funding to reimburse
the removal expenses. See Ds. App. 13 (§ 7 of the Resolution, which states that “the city
manager is hereby authorized to transfer funds or appropriate funds from excess revenue, as
necessary, to remove the [Lee Statue]. The city manager will take all appropriate actions to
seek private funding to reimburse the expenses associated with this action.”). Plaintiffs do
not allege that the City Manager used (or intends to use) tax revenues in connection with the
removal of the Lee Statue or any other Confederate monuments, or that, assuming the City
Defendants maintain that their standing challenge to plaintiffs’ First Amendmentbased § 1983 claim is facial. In deciding defendants’ facial challenge to this court’s
jurisdiction, the court is permitted, as in a Rule 12(b)(6) motion, to consider the contents of
the Resolution, which is [a publicly-available document that is] referenced in the SAC. See
Lone Star Fund V (U.S.), L.P. v. Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010)
(“The court’s review [of a Rule 12(b)(6) motion] is limited to the complaint, any documents
attached to the complaint, and any documents attached to the motion to dismiss that are
central to the claim and referenced by the complaint.”).
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Manager did use such revenue in connection with the removal of the Lee Statue, he did not
obtain full reimbursement from “private funding,” as the Resolution directs. Accordingly,
because, at the very least, plaintiffs have failed to adequately plead that tax money was spent
in connection with the removal of the Lee Statue or any other Confederate monument, the
court holds that Patterson lacks taxpayer standing.
The court now considers whether plaintiffs have plausibly alleged that SCV has
There are two ways for an organization to demonstrate standing.
organization can assert representational standing on behalf of its members.
An association has standing to bring a suit on behalf of its
members when: (1) its members would otherwise have standing
to sue in their own right; (2) the interests it seeks to protect are
germane to the organization’s purpose; and (3) neither the claim
asserted nor the relief requested requires the participation of
Texans United for a Safe Econ. Educ. Fund v. Crown Cent. Petroleum Corp., 207 F.3d 789,
792 (5th Cir. 2000) (citing Hunt v. Wash. State Apple Adver. Comm’n, 432 U.S. 333, 343
(1977); Friends of the Earth, Inc. v. Chevron Chem. Co., 129 F.3d 826, 827-28 (5th Cir.
1997)). When a defendant contests an organization’s standing based on a factual challenge
to the standing of a member whose standing to sue in his own right controls the
organization’s standing, the Rule 12(b)(1) motion is also a factual attack.
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Second, an organization may have standing on its own behalf. To establish standing
on its own, the organization must show that it has constitutional standing in the same manner
as any individual. See Havens Realty Corp. v. Coleman, 455 U.S. 363, 378-79 (1982).
Because this method of establishing standing does not rely on the independent standing of
any of the organization’s members or any other plaintiff, a challenge to this form of standing
is facial unless the defendant adduces evidence attacking a jurisdictional fact on which
standing relies. Defendants have not produced any evidence challenging SCV’s standing on
its own behalf, and therefore the court treats this challenge as facial. See Jones, 281 F.R.D.
SCV has failed to show representational standing because the only member it
identifies is Patterson, who does not have standing to bring this suit. SCV has therefore
failed to show that one of its members has standing in his own right.
SCV has not adequately alleged organizational standing. Although plaintiffs do not
separately address whether SCV has organizational standing, they contend in their response
[t]he SCV’s purpose is to protect Confederate-American
memorials, images, symbols, monuments, and gravesites for the
communication of the political viewpoint that ConfederateAmerican heroes sacrificed for a noble cause that the victors in
the war have almost uniformly whitewashed from history.
Individual plaintiff, the SCV, and all SCV members have made
public affirmations of the values of the military service of their
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ancestors in the Civil War and in the restoration and
reconciliation of the nation subsequently. When the City of
Dallas removed [the Lee Statue] and is now threatening all other
Confederate-American memorials and symbols in the city, the
City’s actions established past and imminent concrete injury-infact to plaintiffs by the infringement of their political viewpoint
communicated by the Monuments. . . . The City’s suppression
of the political viewpoint communicated in the [Lee Statue]
injured plaintiffs, because the suppressed political viewpoint is
the same viewpoint that plaintiffs have long protected and
Ps. Br. 10-11, 13-14. This argument is no different from plaintiffs’ standing arguments in
relation to Patterson. Accordingly, for the reasons explained above, see supra § IV(B), the
court holds that plaintiffs have failed to adequately plead that SCV has standing on its own
behalf to bring a First Amendment claim.
Because plaintiffs lack standing to bring a First Amendment-based § 1983 claim based
on the City’s removal of the Lee Statue or the forthcoming removal of other Confederate
monuments, the court grants defendants’ motion to dismiss this claim.10
Also pending before the court are plaintiffs’ motion to strike defendants’ second brief,
plaintiffs’ amended motion to strike, plaintiffs’ motion for sanctions, and defendants’
objection and motion to strike affidavits. The court denies these motions.
Because the court concludes that plaintiffs have not alleged an injury-in-fact in
relation to their First Amendment claim, it does not address defendants’ contention that
plaintiffs have failed to plead a justiciable claim, and, instead, plead only a political question.
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On September 15, 2017 the court filed a preliminary injunction application scheduling
order that directed plaintiffs to file their supporting materials and a separate brief. Plaintiffs
filed their brief on motions for preliminary injunction and declaratory judgment on
September 26, 2017. After moving on September 29, 2017 to dismiss plaintiffs’ SAC,
defendants responded on October 12, 2017 to plaintiffs’ brief on motions for preliminary
injunction. Plaintiffs seek to strike defendants’ October 12, 2017 response on various
grounds, including that defendants have submitted a redundant pleading, that the court
expressly limited defendants to a single response brief, and that defendants’ second brief,
although styled as a responsive pleading, is formatted as a brief. In their amended motion
to strike, plaintiffs maintain that the court should strike defendants’ October 12, 2017 brief
because it is redundant and was submitted in violation of the court’s scheduling order; the
court should strike both of defendants’ briefs because the briefs are legally insufficient; and,
if the court does not strike defendants’ second brief, it should consolidate the two briefs and
permit plaintiffs to reply to the consolidated brief.
On October 27, 2017 defendants filed their reply in support of their motion to dismiss.
On November 8, 2017 plaintiffs filed a motion for sanctions, characterizing the reply as a
surreply and a “second unauthorized pleading,” Ps. 11/8/17 Br. 3, and requesting “sanctions
against defendants and defendants’ attorneys for disobedience of the Court’s Scheduling
Order by filing unauthorized briefs or pleadings and subsequently refusing to withdraw these
pleadings when given the opportunity.” Id. at 4.
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The court has reviewed defendants’ filings and holds that they are procedurally
proper. Defendants’ October 12, 2017 response to plaintiffs’ motion for preliminary
injunction was expressly permitted by the court’s preliminary injunction application
scheduling order. And their October 27, 2017 reply brief filed in support of their motion to
dismiss is authorized under the local civil rules. Accordingly, because defendants have
complied with the requirements of the federal and local civil rules and have not violated any
applicable scheduling order, the court denies plaintiffs’ motions to strike and motion for
Because the court is granting defendants’ motion to dismiss, it denies as moot their
November 3, 2017 objection and motion to strike affidavits.
Accordingly, for the reasons explained, the court grants defendants’ motion under
Rule 12(b)(1) to dismiss plaintiffs’ action for lack of standing, and it dismisses this action
without prejudice by judgment filed today. All other pending motions are denied.
February 7, 2018.
SIDNEY A. FITZWATER
UNITED STATES DISTRICT JUDGE
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