United States District Court, D. Montana, Helena Division
CHARLES C. LOVELL SENIOR UNITED STATES DISTRICT JUDGE
the Court is Defendants' Combined Rule 12 Motion to
Dismiss. (Doc. 19). Defendants move to dismiss Plaintiffs
complaint with prejudice under Rules 12(b)(1) and 12(b)(6) of
the Federal Rules of Civil Procedure on the grounds that the
complaint fails to allege sufficient facts to establish
standing, as required by Article III of the United States
Constitution. Rather than amending the complaint to cure the
defects pointed out by Defendants, Plaintiff oppose the
motion and argue that it and its members are injured by the
governor's executive order. The motion having been fully
briefed and no party having requested oral argument, the
Court is prepared to rule.
seek dismissal based on lack of subject matter jurisdiction
under Fed.R.Civ.P. 12(b)(1) and failure to state a claim
under Fed.R.Civ.P. 12(b)(6) on the grounds that Plaintiff has
failed to "allege sufficient facts, accepted as true, to
plausibly establish its standing to sue." (Doc. 20 at
6). Plaintiff cites a recent Ninth Circuit case to support
its argument that the Court can only grant Defendants'
motion to dismiss if it is "far from beyond doubt that
no set of facts justify [it's] case." (Doc. 23 at 7,
citing DaVinci Aircraft, Inc. v. United States, 926
F.3d 1117, 1122 (9th Circ. 2019)). In their reply
brief, Defendants correctly point out that Plaintiff is
arguing for a standard that has not been the law since 2009,
when the United States Supreme Court clarified that the
standard established by Bell Atl Corp. v. Twombley
for analyzing motions to dismiss under Fed.R.Civ.P. 12(b)(6)
in antitrust cases applies to all cases brought in federal
court, including cases brought under § 1983. See
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Rule 12(b)(6) standard applies when a defendant challenges a
plaintiffs attempt to invoke the federal court's
jurisdiction by accepting the well-pleaded factual
allegations of the complaint as true and arguing that they
are nevertheless insufficient to invoke federal jurisdiction.
Leite v. Crane Co., 749 F.3d 1117, 1121
(9th Cir. 2014). To survive a motion to dismiss
for lack of lack of subject matter jurisdiction based on lack
of standing, a complaint must allege facts (as opposed to
legal conclusions and speculative predictions) that plausibly
establish each of the three elements that constitute
"the irreducible constitutional minimum of
standing." Lujan v. Defenders of Wildlife, 504
U.S. 555, 561 (1992). See also M.S. v.
Brown, 902 F.3d 1076, 1080 (9th Cir.
2Ol8)(affirming the district court's dismissal of
plaintiffs' Fourteenth Amendment challenge to the refusal
by several state actors to issue them driver's licenses
on the grounds that "plaintiffs failed to establish the
redressability element of standing.").
United States Supreme Court has long recognized that a
plaintiff must allege facts sufficient to show: (1) that it
suffered an injury in fact; (2) that its injury can be traced
to the defendant's challenged conduct; and (3) that its
injury is likely to be redressed by a favorable judicial
decision. Lujan, 504 U.S. at 561. Failure to allege
sufficient facts to establish any one of these elements
mandates dismissal because the Court cannot proceed without
subject matter jurisdiction.
ALLEGATIONS OF COMPLAINT
stripped of legal conclusions and speculative predictions,
the complaint as currently structured alleges that the
governor of Montana issued an executive order that
"mandates state agencies under his control require
bidders on any non-incidental state contract to disclose
their contributions to organizations that engage in issue
advocacy within a certain proximity of an election."
(Doc. 1 at ¶ 3). Plaintiff Illinois Opportunity Project
(IOP) intends to engage in such advocacy in Montana by
sending thousands of mailings to Montana voters prior to the
November 3, 2020 gubernatorial election which will include
names and pictures of candidates for governor and urge those
candidates not to continue Governor Bullock's executive
order out of respect for privacy, free speech, and the First
Amendment. (Doc. 1 at ¶¶ 16- 18).
Plaintiffs announced intent to engage in issue advocacy in
Montana prior to the November 2020 election, any corporation
that donated to IOP within the last two years (IOP current
donors) desiring to bid on state contracts in Montana worth
more than $25, 000 for services or $50, 000 for goods will be
required to disclose those donations. (Doc. 1 at ¶¶
4, 11, 21). Absent from the complaint is an allegation that
any current donor has in the past bid on a contract covered
by the Executive Order in the State of Montana or would do so
before the November 2020 gubernatorial election but for the
existence of the Executive Order.
"desires to solicit financial support from donors within
Montana to partially offset the cost of its intended
communications in Montana, and these potential donors who
would be solicited would include corporations that may now or
in the future bid on business with Montana state government.
(Doc. 1 at ¶ 20). Although the Executive Order had been
in place for over a year before Plaintiff filed its complaint
on August 27, 2019, the complaint does not allege that
Plaintiff has solicited contributions from any potential
donor anywhere who has refused to make a donation based on
that potential donor's plans to bid on business with
Montana state government.
argue that Plaintiff cannot meet the first prong of the
standing test because it has failed to allege facts, that
plausibly establish the first two prongs of the standing
analysis - that is that the Executive Order has caused it or
will likely cause it to suffer an injury in fact. Plaintiff
responds by arguing that the Executive Order harms IOP
directly because it harms its ability to retain current
financial supporters and recruit new contributors. Plaintiff
attempts to excuse its failure to specifically allege that
its current or potential donors have refused to continue
their donations or make new donations as a result of the
enactment of the executive order on the grounds that it seeks
to maintain the anonymity of such donors.
correctly point out that at the pleading stage, Plaintiff
need not specifically identify such donors, so long as the
complaint alleges their existence. Plaintiff also argues that
it should be allowed to assert standing on behalf of its
corporate members and donors without identifying those
members or donors.
Court need not determine at this stage whether Plaintiff is
entitled to assert standing on behalf of corporate members or
donors who hesitate to reveal their identities because they
have contributed to Plaintiff in the past but have decided to
discontinue their contributions to avoid disclosing those
contributions when seeking to contract with the State of
Montana because Plaintiff does not allege that such members
or donors exist. While it is likely that an allegation
regarding the existence of specific current or potential
future donors who have either chosen not to bid on Montana
contracts or not to donate to IOP will lead to a discovery
request for ...