United States District Court, D. Nebraska
RANDALL S. KRAUSE, Plaintiff,
METROPOLITAN ENTERTAINMENT & CONVENTION AUTHORITY (MECA), Defendant.
MEMORANDUM AND ORDER
F. Bataillon Senior United States District Judge.
matter is before the Court on the defendant's motion to
dismiss for lack of jurisdiction and for failure to state a
claim, Filing No. 10. This is an action for alleged
violations of the plaintiff's free-speech rights, brought
pursuant to 42 U.S.C. § 1983.
amended complaint, the plaintiff, pro se, alleges
that he placed a recyclable item into a recycling bin at TD
Ameritrade Park, which operated by defendant Metropolitan
Entertainment & Convention Authority
(“MECA”), and later learned that MECA's
practice is to throw all of the recycling away into two
compactors that are emptied at a landfill. Filing No. 9,
Amended Complaint at 2. He asserts that recycling is
political speech because "[i]t is an expression of
support for the environmental movement." Id. He
alleges that MECA's recycling program abridges his
freedom of speech in violation of the First and Fourteenth
Amendments by penalizing political speech without due process
of law. Id. at 3. As relief, he seeks "an order
that MECA must actually recycle if it places recycling
MECA moves to dismiss for lack of jurisdiction, asserting
that the plaintiff lacks standing. It argues that the
plaintiff has not alleged any concrete, particularized, and
actual or imminent injury in fact that could be redressed by
a favorable decision.
asserts the plaintiff cannot demonstrate standing because
assuming, but not conceding, that placing a recyclable item
in a recycling bin is political speech, the plaintiff's
allegations show that he was able to engage in that political
speech. MECA argues that the plaintiff's expression of
support for the environmental movement, as reflected in his
use of the recycling bin, was complete once he paced the item
in the container and the later handling of the recyclable is
of no consequence to the expression. In response to that
argument, the plaintiff concedes “[i]t is true that
MECA did not prevent Krause from speaking. He made his
statement.” Filing No. 14, response at 1. But he
nevertheless contends he “was penalized for what he
said and is no longer free to speak in the same manner at TD
Ameritrade Park. Therein lies the injury.” Id.
is a threshold issue for this Court. Arbaugh v. Y & H
Corp., 546 U.S. 500, 507 (2006) (“The objection
that a federal court lacks subject-matter jurisdiction . . .
may be raised by a party, or by a court on its own
initiative, at any stage in the litigation, even after trial
and the entry of judgment.”). Federal courts must
always ensure that a dispute presents a case or controversy
under Article III such that an assertion of jurisdiction is
proper. McDaniel v. Precythe, 897 F.3d 946, 949 (8th
Cir. 2018). Standing is an essential part of the
case-or-controversy requirement of Article III. Id.;
see Lujan v. Defs. of Wildlife, 504 U.S.
555, 560 (1992).
complaint can be challenged under Fed.R.Civ.P. 12(b)(1)
either “on its face or on the factual truthfulness of
its averments.” Titus v. Sullivan, 4 F.3d 590,
593 (8th Cir. 1993). “In a facial challenge to
jurisdiction, all of the factual allegations concerning
jurisdiction are presumed to be true and the motion is
successful if the plaintiff fails to allege an element
necessary for subject matter jurisdiction.”
‘irreducible constitutional minimum' of standing
consists of three elements.” Spokeo, Inc. v.
Robins, 136 S.Ct. 1540, 1547 (2016), as revised
(May 24, 2016) (quoting Lujan, 504 U.S., at 560).
“The plaintiff must have (1) suffered an injury in
fact, (2) that is fairly traceable to the challenged conduct
of the defendant, and (3) that is likely to be redressed by a
favorable judicial decision.” Id. at 1548. The
plaintiff, as the party invoking federal jurisdiction, bears
the burden of establishing these elements. Id. Where
“a case is at the pleading stage, the plaintiff must
‘clearly . . . allege facts demonstrating' each
element.” Id.(quoting Warth v.
Seldin, 422 U.S. 490, 498-499 (1975)).
establish injury in fact, a plaintiff must show that he or
she suffered ‘an invasion of a legally protected
interest' that is ‘concrete and particularized'
and ‘actual or imminent, not conjectural or
hypothetical.' Id. ((quoting Lujan, 504
U.S. at 560). “For an injury to be
‘particularized,' it ‘must affect the
plaintiff in a personal and individual way.'”
Id. at n.1. A “concrete” injury must be
“de facto”; that is, it must actually exist.
Id. (noting that concreteness is quite different
from particularization). “‘Concrete' is not,
however, necessarily synonymous with
‘tangible.'” Id. at 1549.
considering a motion to dismiss pursuant to Fed.R.Civ.P.
12(b)(6), the court conducts a two-part analysis.
Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009).
First, the court must accept all the complaint's factual
allegations as true. Id. at 678. Second, the court
must then “determine whether the . . . [factual
allegations] plausibly give rise to an entitlement to
relief.” Id. at 679. This
“plausibility” analysis is a
“context-specific task that requires the reviewing
court to draw on its judicial experience and common
sense.” Id. Properly pled factual allegations
are taken as true, without regard to the likelihood of actual
proof of those facts, even if the ultimate chances of
recovery seem “remote.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 556 (2007).
Court agrees with MECA that the plaintiff has failed to
allege any concrete or particularized injury that is likely
to be redressed by a favorable judicial decision. Assuming
that throwing an article in a recycling bin is conduct that
amounts to protected political speech, the plaintiff concedes
that MECA did not prevent him from engaging in that activity.
He acknowledges he was allowed to “speak” and to
make a statement of support for the environmental movement.
Although he alludes to being “penalized” for what
he said, the amended complaint contains no such allegations.
Even construing the pro se pleading ...