National Coalition of Latino Clergy and Christian Leaders et al v. Arizona, State of et al, No. 2:2010cv00943 - Document 43 (D. Ariz. 2010)
Court Description: ORDER granting Defendants Brewer, Arizona, Goddard and Arpaio's Motions to Dismiss (Docs. 30 , 31 , 26 ). Plaintiffs' Amended Complaint is dismissed without prejudice for lack of standing. Plaintiffs are directed to file any amendments to their pleading within 30 calendar days of the date of this Order; granting Defendants Brewer and Arizona's 30 Motion to Dismiss the State of Arizona. All claims against the State of Arizona are dismissed with prejudice because Arizona has not waived sovereign immunity in this case; denying without prejudice Plaintiffs' 35 Motion for Leave to File Second Amended Complaint. Signed by Judge Susan R Bolton on 12/10/10. (ESL) (Entered: 12/10/2010)
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National Coalition of Latino Clergy and Christian Leaders et al v. Arizona, State of et al Doc. 43 1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 10 11 12 13 14 15 16 National Coalition of Latino Clergy and) ) Christian Leaders; et al., ) ) Plaintiffs, ) ) vs. ) ) State of Arizona; Janice K. Brewer;) Richard M. Romley; Terry L. Goddard;) ) and Joseph M. Arpaio, ) ) Defendants. ) ) No. CV 10-943-PHX-SRB ORDER 17 18 At issue are Defendants Janice K. Brewer and the State of Arizona’s Motion to 19 Dismiss (“Brewer MTD”) (Doc. 30), Defendant Terry L. Goddard’s Motion to Dismiss 20 (“Goddard MTD”) (Doc. 31), and Defendant Joseph M. Arpaio’s Motion to Dismiss 21 (“Arpaio MTD”) (Doc. 26). The Court also addresses Plaintiffs’ Motion for Leave to File 22 Second Amended Complaint (“Pls.’ Mot. to Am.”) (Doc. 35). 23 I. BACKGROUND 24 In April 2010, the Arizona Legislature enacted Senate Bill 1070, later modified by 25 House Bill 2162 (collectively “S.B. 1070”), a set of statutes and statutory amendments 26 intended to “discourage and deter the unlawful entry and presence of aliens and economic 27 activity by persons unlawfully present in the United States.” S.B. 1070 § 1. S.B. 1070 had 28 Dockets.Justia.com 1 an effective date of July 29, 2010. Following the enactment of S.B. 1070, seven separate 2 lawsuits were filed challenging its validity. (See Escobar v. Brewer, CV 10-249-PHX-SRB; 3 Frisancho v. Brewer, CV 10-926-PHX-SRB; Nat’l Coal. of Latino Clergy & Christian 4 Leaders v. Arizona, CV 10-943-PHX-SRB; Salgado v. Brewer, CV 10-951-PHX-SRB; 5 Friendly House v. Whiting, CV 10-1061-PHX-SRB; United States v. Arizona, CV 10-1413- 6 PHX-SRB; and League of United Latin Am. Citizens v. Arizona, CV 10-1453-PHX-SRB.) 7 On July 28, 2010, the Court preliminarily enjoined certain provisions of S.B. 1070 in the 8 related case United States v. Arizona, CV 10-1413-PHX-SRB. (United States v. Arizona, CV 9 10-1413-PHX-SRB, Doc. 87, Order (“USA Order”) at 4.) 10 Plaintiffs filed the instant class action challenging the validity of S.B. 1070 on April 11 29, 2010. (Doc. 1, Compl. ¶¶ 63-79.) Plaintiffs include two organizations, the National 12 Coalition of Latino Clergy and Christian Leaders (“CONLAMIC”) and La Hermosa Church1 13 (“La Hermosa”) (collectively, “Organizational Plaintiffs”), and twelve identified individuals, 14 Laura Madera, Carmen Galindo, Fermin Leon, Manuel Siguenza, Moises Herrera, Joe 15 Rivera, Jane Does 1-3 and John Does 1-3 (collectively, “Individual Plaintiffs”). (Id. ¶¶ 14- 16 44.) On June 9, 2010, Plaintiffs filed an Amended Complaint (“AC”) asserting the following 17 six causes of action on behalf of themselves and all similarly situated individuals: (Counts 18 1 and 5) violations of substantive Due Process under the Fourteenth Amendment of the 19 United States Constitution; (Counts 2 and 4) violations of the Supremacy Clause; (Count 3) 20 violation of the First Amendment; and (Count 6) violation of procedural Due Process under 21 the Fourteenth Amendment. (Doc. 13, AC ¶¶ 66-79.) Plaintiffs assert claims against 22 Governor Janice K. Brewer (“Brewer”), the State of Arizona (“Arizona”), Arizona Attorney 23 24 25 26 27 28 1 La Hermosa Church is not listed as a Plaintiff in the original Complaint or in Plaintiffs’ AC. While La Hermosa is not technically a Plaintiff in the instant action, the Court will address Plaintiffs’ allegations related to La Hermosa for purposes of standing. In addition, the Court notes that Plaintiffs seek to amend the AC and that the Proposed Second Amended Complaint (“Proposed SAC”) includes La Hermosa Church as a Plaintiff. (Pls.’ Mot. to Am. at 4; Id., Ex. 2, Proposed SAC at 1.) -2- 1 General Terry L. Goddard (“Goddard”), Maricopa County Sheriff Joseph Arpaio (“Arpaio”), 2 and Maricopa County Attorney Richard M. Romley (“Romley”). (Id. ¶¶ 47-51, 66-79.) 3 Defendants Brewer, Arizona, Goddard and Arpaio move to dismiss Plaintiffs’ AC 4 pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). (Brewer MTD at 2; 5 Goddard MTD2 at 1; Arpaio MTD at 1-2.) Defendant Romley joins the Brewer Motion to 6 Dismiss. (Doc. 33, Maricopa Cnty. Att’y Richard M. Romley’s Joinder in Brewer MTD 7 (“Romley Joinder”) at 1.) In addition, Plaintiffs move for leave to file a second amended 8 complaint. (Pls.’ Mot. to Am. at 1.) 9 II. LEGAL STANDARDS AND ANALYSIS 10 A. 11 Defendants Brewer, Arizona and Goddard move to dismiss Plaintiffs’ AC pursuant 12 to Rules 12(b)(1) and 12(b)(6), arguing that Arizona cannot be sued under the Eleventh 13 Amendment and that Plaintiffs lack standing. (Brewer MTD at 2; Goddard MTD at 1.) 14 Defendant Arpaio also moves to dismiss pursuant to Rules 12(b)(1) and 12(b)(6), arguing 15 that Plaintiffs lack standing and that Plaintiffs have failed to state a claim upon which relief 16 may be granted. (Arpaio MTD at 1-2.) 1. 17 18 Defendants’ Motions to Dismiss Immunity The Eleventh Amendment provides the states with immunity from suit by private 19 parties in federal court. Edelman v. Jordan, 415 U.S. 651, 662-63 (1974). Unless a state has 20 waived its sovereign immunity, it cannot be subject to suit in federal court. P.R. Aqueduct 21 & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144 (1993) (citing Welch v. Tex. Dep’t 22 of Highways and Pub. Transp., 483 U.S. 468, 480 (1987)). Waiver of a state’s sovereign 23 immunity is “generally found either when the state makes a clear declaration that it intends 24 to waive immunity, such as by statute . . . or when the state voluntarily invokes federal 25 26 27 28 2 Goddard’s Motion to Dismiss asserts only that Defendant Goddard “joins in Governor Janice Brewer’s Motion to Dismiss and concurs with her position that the Court should dismiss this case because the Plaitniffs failed to establish standing to bring their claims.” (Goddard MTD at 1.) -3- 1 jurisdiction.” Tegic Commc’ns Corp. v. Bd. of Regents of the Univ. of Tex. Sys., 458 F.3d 2 1335, 1340 (9th Cir. 2006) (internal quotations and citations omitted); see also Coll. Sav. 3 Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 675-76 (1999). 4 Intervention in litigation is considered a waiver of sovereign immunity. Clark v. Barnard, 5 108 U.S. 436, 447-48 (1883). A waiver of sovereign immunity in the litigation context, 6 resulting from a litigation act such as the initiation of litigation, removal of litigation to 7 federal court, or intervention in federal litigation, must be clear. Tegic Commc’ns, 458 F.3d 8 at 1342 (“While waiver in the litigation context focuses on the litigation act, the waiver must 9 nonetheless be ‘clear.’” (quoting Lapides v. Bd. of Regents of the Univ. Sys. of Ga., 535 U.S. 10 613, 620 (2002))). Plaintiffs argue that Arizona waived sovereign immunity by filing a 11 “Motion to Intervene as a Defendant” in the related case of Friendly House v. Whiting. (See 12 Friendly House v. Whiting, CV 10-1061-PHX-SRB, Doc. 47, Mot. to Intervene as a Def.) 13 Arizona moved to intervene in Friendly House “in order to defend the 14 constitutionality of state law,” stating that S.B. 1070 “concerns a matter of statewide public 15 importance.” (Id. at 1-2.) Courts have found that litigation conduct is sufficiently clear to 16 waive sovereign immunity where a state initiates the litigation in federal court, voluntarily 17 intervenes in the litigation, or removes the litigation to federal court. See Gardner v. New 18 Jersey, 329 U.S. 565, 574 (1947); Clark, 108 U.S. at 448; Lapides, 535 U.S. at 620. In 19 considering whether a waiver of sovereign immunity in one case operated as a waiver in a 20 separate but related case, the Ninth Circuit Court of Appeals has found that, although the 21 state entity waived sovereign immunity by making itself a party to litigation in the first case, 22 there was no “clear waiver” of sovereign immunity in the related case and the state entity 23 “did not . . . voluntarily submit itself to a new action brought by a different party in a 24 different state and a different district court.” Tegic Commc’ns, 458 F.3d at 1343. Plaintiffs 25 assert that the Ninth Circuit Court of Appeals has “implicitly [held] that a waiver of 26 sovereign immunity in one lawsuit can carry over to another, related lawsuit when the waiver 27 continues to have legal effect.” (Pls.’ Resp. at 5 (citing City of S. Pasadena v. Mineta, 284 28 F.3d 1154, 1157-58 (9th Cir. 2002).) The Mineta court considered whether a waiver of -4- 1 sovereign immunity in a predecessor action carried over to a subsequent lawsuit filed as a 2 “continuation” of the predecessor lawsuit. Mineta, 284 F.3d at 1156-58. Ultimately, the 3 Mineta court found that a prior waiver of sovereign immunity did not carry over to a 4 subsequent action. Id. at 1158. Plaintiffs do not cite any case law for the proposition that a 5 waiver in similar or related litigation can act as a waiver in a wholly separate action. (See 6 Pls.’ Resp. at 4-5.) Arizona’s intervention in related litigation challenging the 7 constitutionality of S.B. 1070 is not a “clear waiver” of its sovereign immunity in this 8 litigation, and Arizona did not voluntarily submit itself to a new action brought by different 9 parties. See Tegic Commc’ns, 458 F.3d at 1343. The Court therefore dismisses all claims 10 against Arizona in this action. 11 2. Standing 12 “Article III of the Constitution limits the judicial power of the United States to the 13 resolution of [c]ases and [c]ontroversies, and Article III standing . . . enforces the 14 Constitution’s case-or-controversy requirement.” Hein v. Freedom from Religion Found., 15 Inc., 551 U.S. 587, 597-98 (2007) (internal quotations and citations omitted). An analysis of 16 standing requires an examination of “whether the particular plaintiff is entitled to an 17 adjudication of the particular claims asserted.” Allen v. Wright, 468 U.S. 737, 752 (1984). 18 In order to have standing pursuant to Article III, a plaintiff must show (1) an “injury in fact” 19 that is concrete and particularized and actual or imminent (not conjectural or hypothetical); 20 (2) that the injury is fairly traceable to the challenged action of the defendant; and (3) that 21 it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable 22 decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992); see also Summers v. 23 Earth Island Inst., 129 S. Ct. 1142, 1149 (2009). 24 An organization has standing “to seek judicial relief from injury to itself and to 25 vindicate whatever rights and immunities the association itself may enjoy.” Warth v. Seldin, 26 422 U.S. 490, 511 (1975). “An organization may establish a sufficient injury in fact if . . . a 27 challenged statute or policy frustrates the organization’s goals and requires the organization 28 ‘to expend resources in representing clients they otherwise would spend in other ways.’” -5- 1 Comite de Jornaleros de Redondo Beach v. City of Redondo Beach, 607 F.3d 1178, 1183 2 (9th Cir. 2010) (quoting El Rescate Legal Servs., Inc. v. Exec. Office of Immigration Review, 3 959 F.2d 742, 748 (9th Cir. 1992)); see also Havens Realty Corp. v. Coleman, 455 U.S. 363, 4 379 (1982). Where a statute “perceptibly impair[s]” an organization’s ability to provide the 5 services the organization was formed to provide, “there can be no question that the 6 organization has suffered [an] injury in fact. Such concrete and demonstrable injury to the 7 organization’s 8 resources–constitutes far more than simply a setback to the organization’s abstract social 9 interests.” Havens, 455 U.S. at 379. An organization also has “associational standing” to 10 bring suit on behalf of its members “when its members would otherwise have standing to sue 11 in their own right, the interests at stake are germane to the organization’s purpose, and 12 neither the claim asserted nor the relief requested requires the participation of individual 13 members in the lawsuit.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 14 U.S. 167, 181 (2000) (citing Hunt v. Wash. State Apple Adver. Comm’n, 432 U.S. 333, 343 15 (1977)). activities–with the consequent drain on the organization’s 16 Even when the constitutional minima of standing are present, prudential concerns may 17 impose additional limitations. Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 11-12 18 (2004). Prudential standing limitations embody “‘judicially self-imposed limits on the 19 exercise of federal jurisdiction’” and include “‘the general prohibition on a litigant’s raising 20 another person’s legal rights, the rule barring adjudication of generalized grievances more 21 appropriately addressed in the representative branches, and the requirement that a plaintiff’s 22 complaint fall within the zone of interests protected by the law invoked.’” Id. at 12 (quoting 23 Allen, 468 U.S. at 750-51); see also Alaska Right to Life Political Action Comm. v. Feldman, 24 504 F.3d 840, 848-49 (9th Cir. 2007). 25 In evaluating standing, courts must accept all material allegations in the complaint as 26 true and construe the complaint in favor of the plaintiff. Graham v. FEMA, 149 F.3d 997, 27 1001 (9th Cir. 1998) (citing Warth, 422 U.S. at 501). The plaintiff has the burden of 28 establishing standing and must “‘allege[] such a personal stake in the outcome of the -6- 1 controversy’ as to warrant [the] invocation of federal-court jurisdiction and . . . justify 2 exercise of the court’s remedial powers.” Warth, 422 U.S. at 498-99 (quoting Baker v. Carr, 3 369 U.S. 186, 204 (1962)). a. 4 Injury in Fact 5 Plaintiffs assert various injuries arising from the operation and enforcement of S.B. 6 1070. (AC ¶¶ 11-12, 14-44.) An “injury in fact” is “an invasion of a legally protected interest 7 which is [both] . . . concrete and particularized . . . and . . . actual or imminent,” rather than 8 conjectural or hypothetical. Lujan, 504 U.S. at 560. Plaintiffs “must demonstrate a realistic 9 danger of sustaining a direct injury as a result of the statute’s operation or enforcement.” 10 Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298 (1979) (citation omitted). 11 However, plaintiffs do not “have to await the consummation of threatened injury to obtain 12 preventive relief. If the injury is certainly impending that is enough.” Id. Similarly, “‘it is 13 not necessary that [a plaintiff] first expose himself to actual arrest or prosecution to be 14 entitled to challenge [a criminal] statute that he claims deters the exercise of his 15 constitutional rights.’” Id. (quoting Steffel v. Thompson, 415 U.S. 452, 459 (1974)). In order 16 to have standing to challenge a criminal statute prior to the statute’s enforcement, a plaintiff 17 must allege “an intention to engage in a course of conduct arguably affected with a 18 constitutional interest, but proscribed by a statute,” and that a “credible threat” of prosecution 19 exists. Id.; see also San Diego Cnty. Gun Rights Comm. v. Reno, 98 F.3d 1121, 1126-27 (9th 20 Cir. 1996). The Court examines whether Plaintiffs’ AC contains sufficient allegations of an 21 injury in fact suffered by the Individual Plaintiffs, the Organizational Plaintiffs, and the 22 Organizational Plaintiffs’ members. i. 23 The Individual Plaintiffs 24 Plaintiffs allege that the operation and enforcement of S.B. 1070 will result in various 25 injuries to the Individual Plaintiffs. (AC ¶¶ 14-37.) The Court addresses each type of alleged 26 injury below. 27 28 -7- 1 (a). Fear of Racial Profiling 2 Several of the Individual Plaintiffs allege that they fear that the operation and 3 enforcement of S.B. 1070 might result in their being stopped and arrested as a result of racial 4 profiling based on their language ability, accent, or appearance. (AC ¶¶ 16, 17, 18, 19, 28, 5 30, 34, 35, 36; see also id. ¶ 32 (Plaintiff John Doe alleging that he “will not take his children 6 to school or go to work as he is afraid of being arrested”).)3 However, a speculative fear of 7 future harm does not constitute a sufficient injury in fact for purposes of standing. Mayfield 8 v. United States, 599 F.3d 964, 970 (9th Cir. 2010) (citing Friends of the Earth, 528 U.S. at 9 184; Lujan, 504 U.S. at 560). Plaintiffs’ allegations related to a fear of future racial profiling 10 are speculative. Plaintiffs do not include any allegations making an injury resulting from 11 racial profiling sufficiently imminent. Plaintiffs’ speculative fears of racial profiling are not 12 a sufficient injury in fact for purposes of standing. See id.; Babbitt, 442 U.S. at 298. (b). 13 Risk of Prosecution Under A.R.S. § 13-1509 14 Several Individual Plaintiffs also allege that they may be injured by the enforcement 15 of S.B. 1070 if they forget or fail to carry documentation of their immigration status. (AC ¶¶ 16 18, 19, 32, 35; see also id. ¶ 34 (Plaintiff John Doe 3 alleging that he is a United States 17 citizen but that he lost his passport and can only produce his driver’s license and birth 18 certificate if asked for proof of residency and that as a result he is afraid of being arrested 19 because he looks Latino); id. ¶ 33 (Plaintiff John Doe 2 alleging that he lost his Green Card 20 and that he “will be unable to rent, work, or obtain goods and services in Phoenix because 21 he cannot prove his immigration status”).)4 A.R.S. § 13-1509 provides that “a person is guilty 22 23 24 25 26 27 28 3 Individual Plaintiff Jane Doe 1 also alleges that she fears going outside because “she has already been intimidated by individuals yelling at her to ‘go back to [her] own country.’” (Id. ¶ 29.) Jane Doe 1 alleges a fear resulting not directly from the operation of S.B. 1070 but from the conduct of unidentified third-parties. Injuries resulting from the conduct of thirdparties not before the court do not give rise to an injury in fact for purposes of standing. See San Diego Cnty., 98 F.3d at 1130. 4 Plaintiffs assert that Individual Plaintiffs Carmen Galindo and Laura Madera also “risk arrest for violating (or being charged with violating) . . . [A.R.S. § 13-1509].” (Pls.’ -8- 1 of willful failure to complete or carry an alien registration document if the person is in 2 violation of [8 U.S.C. §§] 1304(e) or 1306(a),” federal statutes that require aliens to carry 3 documentation of registration and penalize the willful failure to register. A.R.S. § 13- 4 1509(A). 5 An injury in fact cannot be based on a “chain of speculative contingencies.” Lee v. 6 Oregon, 107 F.3d 1382, 1388 (1997). In order for the alleged injury to arise under the 7 provisions of S.B. 1070, Plaintiffs, all of whom allege that they are either United States 8 citizens or lawfully present in the United States, would have to first be lawfully stopped by 9 a law enforcement officer, the law enforcement officer would then have to request 10 documentation of Plaintiffs’ legal presence after developing reasonable suspicion that 11 Plaintiffs were unlawfully present in the United States, and finally, Plaintiffs would have to 12 be unable to produce such documentation, either because they lack documentation of their 13 immigration status or forgot to carry it, resulting in Plaintiffs’ arrest. In addition, A.R.S. § 14 13-1509 “does not apply to a person who maintains authorization from the federal 15 government to remain in the United States.” A.R.S. § 13-1509(F). Plaintiffs alleging a risk 16 of prosecution under A.R.S. § 13-1509 all also allege that they have authorization to remain 17 in the United States. (AC ¶¶ 18-19, 32-35.) Plaintiffs’ alleged injuries arising from the risk 18 of prosecution under A.R.S. § 13-1509 are hypothetical and conjectural and not sufficiently 19 “concrete and particularized . . . [or] . . . actual or imminent.” See Lujan, 504 U.S. at 560. 20 (c). Risk of Prosecution Under A.R.S. § 13-2929 21 In addition, Individual Plaintiffs Manuel Siguenza and Joe Rivera allege that they 22 “might be considered in violation of the law because their clients often stay for an extended 23 period of time in their business and they often transport them to different locals [sic].” (AC 24 ¶ 24; see also id. ¶¶ 22-23.) A.R.S. § 13-2929 provides that it is unlawful for a person who 25 is in violation of a criminal offense to: (1) transport or move or attempt to transport or move 26 27 28 Resp. at 9.) However, both Galindo and Madera allege only that they “appear[] Latina” and that they fear arrest. (AC ¶¶ 28, 30.) These allegations are evaluated above as alleged injuries related to arrest arising from racial profiling. See supra Part II.A.2.a.i.(a). -9- 1 an alien in Arizona in furtherance of the alien's unlawful presence in the United States; (2) 2 conceal, harbor, or shield or attempt to conceal, harbor, or shield an alien from detection in 3 Arizona; and (3) encourage or induce an alien to come to or live in Arizona. A.R.S. § 4 13-2929(A)(1)-(3). In order to violate A.R.S. § 13-2929(A), a person must also know or 5 recklessly disregard the fact that the alien is unlawfully present in the United States. Id. 6 In order to assert standing based on a risk or threat of prosecution, a plaintiff “must 7 show a ‘genuine threat of imminent prosecution’ under the [challenged statute].” San Diego 8 Cnty., 98 F.3d at 1126 (citing Wash. Mercantile Ass’n v. Williams, 733 F.2d 687, 688 (9th 9 Cir. 1984)). Here, Plaintiffs fail to allege a genuine threat of imminent prosecution. First, 10 Plaintiffs’ allegations do not clearly indicate that Plaintiffs intend to violate A.R.S. § 13-2929 11 or that Plaintiffs face any specific threat of prosecution. See id. at 1127. In addition, Plaintiffs 12 specifically allege that it is “difficult if not impossible for Plaintiffs Siguenza and Rivera to 13 determine whether each of their clients is or is not an ‘authorized alien.’” (AC ¶ 22.) A.R.S. 14 § 13-2929 only applies if the individual “knows or recklessly disregards the fact that the alien 15 has come to, entered or remains in the United States in violation of law.” A.R.S. § 13- 16 2929(A)(1)-(3). Plaintiffs have not alleged a sufficient injury in fact based on risk of 17 prosecution under A.R.S. § 13-2929 because Plaintiffs’ allegations fail to establish a 18 “genuine threat of imminent prosecution under [S.B. 1070].” See San Diego Cnty., 98 F.3d 19 at 1126. 20 (d). Loss of Business or Membership 21 While an economic injury is a sufficient basis for standing, the alleged economic 22 injury must be “fairly traceable” to the challenged statute. Id. at 1130. Several Individual 23 Plaintiffs allege that they fear they will lose significant business, patronage or membership, 24 or believe that they already have lost business, as a result of the operation of S.B. 1070. (AC 25 ¶¶ 14-17, 20-27.) Plaintiffs allege that their businesses or churches primarily serve Latinos 26 and that they have lost or will lose customers and members because of S.B. 1070. (Id.) S.B. 27 1070 does not directly regulate or restrict the Plaintiffs’ business or religious activities. 28 Plaintiffs’ allegations do not explain how S.B. 1070 will result in a loss of business or - 10 - 1 membership. (See id.) To the extent that Plaintiffs’ alleged losses are based on a diminished 2 or decreasingly active Latino population as a result of S.B. 1070, the economic and 3 membership injuries alleged are “th[e] result [of] the independent action of . . . third part[ies] 4 not before the [C]ourt.” See San Diego Cnty., 98 F.3d at 1130 (finding no standing where the 5 increases in gun prices that resulted from statutory restrictions on gun supply were the result 6 of decisions by manufacturers and dealers and not directly mandated by the statute); see also 7 Roe 1 v. Prince William Cnty., 525 F. Supp. 2d 799, 806-07 (E.D. Va. 2007) (finding no 8 standing where the challenged law did not have a direct impact on the regulation of 9 business). Here, Plaintiffs have not alleged sufficient facts indicating that the alleged 10 economic injury is fairly traceable to S.B. 1070. See San Diego Cnty., 98 F.3d at 1130. 11 (e). Prolonged Separation of Family Members 12 Finally, Plaintiffs allege generally that they are or will be injured because S.B. 1070 13 prolongs the separation of family members. (AC ¶ 12; Pls.’ Resp. at 13.)5 Any family 14 separation caused by deportation is at this point purely speculative and not directly traceable 15 to S.B. 1070. See Prince William Cnty., 525 F. Supp. 2d at 805 (finding that allegations that 16 an immigration law would increase familial separation by deportation were “unduly 17 speculative”). To the extent S.B. 1070 may cause undocumented family members to leave 18 or refuse to come to Arizona, the separation is the “result [of] the independent action of . . 19 . third part[ies] not before the [C]ourt.” See San Diego Cnty., 98 F.3d at 1130. Plaintiffs’ 20 allegations of injuries resulting from separation of family members are hypothetical and 21 conjectural and not sufficiently “concrete and particularized . . . [or] . . . actual or imminent” 22 to justify standing. See Lujan, 504 U.S. at 560. ii. 23 The Organizational Plaintiffs’ Members 24 Plaintiffs may also seek to establish standing on behalf of the members of the 25 Organizational Plaintiffs. The Organizational Plaintiffs have standing to bring suit on behalf 26 27 28 5 Plaintiffs withdraw any allegations related to violations of the Fair Housing Act and day laborers. (Pls.’ Resp. at 14.) - 11 - 1 of their members if their members “would otherwise have standing to sue in their own right,” 2 the interests at stake in the litigation are related to the Organizational Plaintiffs’ purposes, 3 and the litigation does not require the participation of individual members in the lawsuit. See 4 Friends of the Earth, 528 U.S. at 181. 5 Here, Plaintiffs allege only that La Hermosa’s “membership and constituency . . . 6 includes individuals–many but not all of whom are Latino–who reside and who are employed 7 in and around Phoenix, some of whom have school-aged children,” and individuals who 8 speak Spanish and have limited English proficiency. (AC ¶ 39.) Similarly, Plaintiffs allege 9 that CONLAMIC’s “membership and constituency . . . includes individuals–many, but not 10 all, are [sic] Latino or who service Latino and other customers–who reside or operate 11 businesses in and around Arizona, some of whom have school-aged children,” and 12 individuals who speak Spanish and have limited English proficiency. (Id. ¶¶ 42-43.) 13 Plaintiffs go on to allege that the interests that La Hermosa and CONLAMIC “seek[] to 14 protect through this action are germane to [their] purpose[s], and neither the claims asserted 15 nor the relief requested herein require the personal participation of [their] members.” (Id. ¶¶ 16 39, 44.) These allegations fall short of establishing the standing of the Organizational 17 Plaintiffs’ members. The allegations contain insufficient details regarding any alleged harm 18 to any member. (See id. ¶¶ 39, 41-42.) Plaintiffs allege only that S.B. 1070 has “created great 19 hostility towards the Latino community” and that La Hermosa and CONLAMIC have many 20 Latino members. (Id.) These generalized allegations fail to establish a sufficiently concrete 21 and actual or imminent injury to any of the Organizational Plaintiffs’ members. See Lujan, 22 504 U.S. at 560. 23 iii. The Organizational Plaintiffs 24 Finally, the Organizational Plaintiffs may also “establish a sufficient injury in fact if 25 . . . a challenged statute or policy frustrates the [Organizational Plaintiffs’] goals and requires 26 the [Organizational Plaintiffs] ‘to expend resources in representing clients they otherwise 27 would spend in other ways.’” See Redondo Beach, 607 F.3d at 1183 (quoting El Rescate 28 Legal Servs., 959 F.2d at 748); see also Havens, 455 U.S. at 379. In addition, if S.B. 1070 - 12 - 1 “perceptibly impair[s]” the Organizational Plaintiffs’ ability to provide the services they were 2 formed to provide, “there can be no question that the [Organizational Plaintiffs have] 3 suffered [an] injury in fact.” See Havens, 455 U.S. at 379. 4 Plaintiffs allege that La Hermosa’s “primary purpose is to promote Christian values 5 and spread the gospel of Jesus Christ.” (AC ¶ 39.) Plaintiffs also allege that CONLAMIC has 6 over 30,000 affiliated churches throughout the United States and that CONLAMIC’s 7 “purpose is to promote the interests of its members.” (Id. ¶¶ 40-41.) Plaintiffs assert that S.B. 8 1070 “has created great hostility towards the Latino community in Arizona and therefore 9 adversely affects the work [that both La Hermosa and CONLAMIC] perform[]” in Arizona. 10 (Id. ¶¶ 39, 41.) However, Plaintiffs do not allege that S.B. 1070 requires the Organizational 11 Plaintiffs to expend or divert resources. (See id. ¶¶ 39-44.) In addition, it is not at all clear 12 how S.B. 1070 would frustrate the Organizational Plaintiffs’ religious purposes. See Havens, 13 455 U.S. at 379. Unlike the plaintiffs in Redondo Beach, Havens, and Friendly House, 14 Plaintiffs allegations here imply only a tenuous relationship between Plaintiffs’ alleged 15 missions and the challenged statute. See Redondo Beach, 607 F.3d at 1183; Havens, 455 U.S. 16 at 379; Friendly House, 10-CV-1061-PHX-SRB. Based on Plaintiffs allegations and the 17 Organizational Plaintiffs’ stated purposes, the alleged adverse effects on the Organizational 18 Plaintiffs’ work are too speculative. As a result, Plaintiffs have not established that the 19 Organizational Plaintiffs have suffered an injury in fact. See Havens, 455 U.S. at 379. 20 Since the Court concludes that Plaintiffs have failed to allege sufficient injuries in fact 21 to confer standing, the Court will not address whether Plaintiffs’ allegations meet the 22 causation, redressability, or prudential requirements of standing. Similarly, the Court will not 23 reach the question of whether Plaintiffs have stated claims upon which relief may be granted. 24 B. Plaintiffs’ Motion to Amend 25 Rule 15(a) of the Federal Rules of Civil Procedure provides that leave to amend “shall 26 be freely given when justice so requires.” Fed. R. Civ. P. 15(a); accord Foman v. Davis, 371 27 U.S. 178, 182 (1962); Moore v. Kayport Package Express, Inc., 885 F.2d 531, 538 (9th Cir. 28 1989). The Ninth Circuit Court of Appeals has recognized a “strong policy permitting - 13 - 1 amendment.” Moore, 885 F.2d at 537 (citation omitted). In determining “whether justice 2 requires leave to amend,” courts consider “the presence or absence of undue delay, bad faith, 3 dilatory motive, repeated failure to cure deficiencies by previous amendments, undue 4 prejudice to the opposing party and futility of the proposed amendment.” Moore, 885 F.2d 5 at 538 (citing Foman, 371 U.S. at 182). The party opposing amendments bears the burden 6 of showing prejudice, futility, or one of the other permissible reasons for denying a motion 7 to amend. DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 187 (9th Cir. 1987). Defendants 8 object to Plaintiffs’ Proposed SAC, arguing that it should be denied because the amendment 9 is futile and Plaintiffs unduly delayed amendment. (Defs.’ Resp. to Pls.’ Mot. to Am. (“Defs.’ 10 Resp.”) at 3-4.) 11 Plaintiffs seek leave to amend in order to make several changes to their AC including: 12 adding claims for violations of the First Amendment and the Equal Protection Clause; 13 consolidating and clarifying their Supremacy Clause and Fourteenth Amendment claims; 14 withdrawing Plaintiff Fermin Leon, one of the Jane Doe Plaintiffs, and all of the class 15 allegations; adding La Hermosa as a named plaintiff; and supplementing Plaintiffs’ factual 16 allegations, including the allegations related to standing. (Pls.’ Mot. to Am. at 3-4.) Plaintiffs’ 17 Proposed SAC adds allegations relevant to Plaintiffs’ standing. (Proposed SAC ¶¶ 14-40.) 18 Plaintiffs assert that the Proposed SAC “[c]larif[ies] [the] basis for standing [and] 19 supplement[s] the organizational plaintiffs’ allegations regarding their purpose, mission, and 20 activities, as well as the harms to them caused by S.B. 1070.” (Pls.’ Mot. to Am. at 4.) 21 1. Futility of Amendment 22 An amendment is futile if it fails to state a claim upon which relief can be granted. 23 Newland v. Dalton, 81 F.3d 904, 907 (9th Cir. 1996); Klamath-Lake Pharm. Ass’n v. 24 Klamath Med. Serv. Bureau, 701 F.2d 1276, 1293 (9th Cir. 1983). “Leave to amend need not 25 be given if a complaint, as amended, is subject to dismissal.” Moore, 885 F.2d at 538. As 26 discussed above, Plaintiffs’ AC fails to allege sufficient facts demonstrating standing. The 27 Court will not grant leave to amend if Plaintiffs’ Proposed SAC is itself subject to dismissal 28 because of a lack of standing. See id. - 14 - 1 a. Individual Plaintiffs’ Standing in the Proposed SAC 2 Plaintiffs’ Proposed SAC contains additional allegations related to injuries to the 3 Individual Plaintiffs. (Proposed SAC ¶¶ 14-30.) Specifically, the Proposed SAC includes 4 allegations related to the potential loss of business or members. (Id. ¶¶ 15-17, 19, 20.) 5 Plaintiffs also include additional allegations related to Plaintiffs’ fears that, as a result of S.B. 6 1070, they might be stopped and arrested as a result of racial profiling based on their 7 appearance. (Id. ¶¶ 16-18.) Plaintiffs also include additional, though similar, allegations 8 related to risk of prosecution under A.R.S. § 13-1509. (Id. ¶¶ 17, 18, 25.) Finally, Plaintiffs 9 re-allege that Plaintiffs Siguenza and Rivera risk prosecution under A.R.S. § 13-2929. (Id. 10 ¶¶ 21, 22.) The additional allegations in Plaintiffs’ Proposed SAC suffer from the same 11 defects as Plaintiffs’ AC. See supra Part II.A.2.a.i. Plaintiffs’ allegations of a speculative fear 12 of future harm are insufficient for purposes of standing. See Mayfield, 599 F.3d at 970; see 13 also supra Part II.A.2.a.i. 14 b. Organizational Plaintiffs’ Standing in the Proposed SAC 15 The Proposed SAC also includes additional allegations related to the Organizational 16 Plaintiffs. (Proposed SAC ¶¶ 31-40.) Specifically, Plaintiffs allege that “La Hermosa’s 17 religious mission is to reach out to and embrace all members of the community . . . provide 18 food, shelter and access to services, including transportation, to those in need—regardless 19 of immigration status.” (Id. ¶ 32.) Plaintiffs further allege that S.B. 1070 will force La 20 Hermosa and its parishioners to “go against their religious beliefs by limiting certain of their 21 activities (such as providing shelter and transportation to those in need) . . . or risk 22 prosecution.” (Id. ¶ 33.) In addition, Plaintiffs assert that, as a result of S.B. 1070, “certain 23 parishioners will be unable or unwilling to leave their houses to come to Church, which 24 interferes with the Church and its members’ rights to freedom of association in the practice 25 of their religion.” (Id.) Finally, Plaintiffs assert that La Hermosa “has had to divert resources 26 from its religious mission to defending against the harms caused by this legislation both to 27 the Church and to the community it serves” and that S.B. 1070 has “created great hostility 28 - 15 - 1 towards the Latino community[,] . . . adversely affect[ing] the work La Hermosa performs 2 . . . [and] forcing it to divert resources away from its mission.” (Id. ¶¶ 34-35.) 3 The additional allegations in the Proposed SAC are insufficient to demonstrate 4 standing. The Proposed SAC does not contain sufficient additional allegations demonstrating 5 that La Hermosa’s members have standing. In addition, the Proposed SAC does not include 6 any allegations demonstrating how S.B. 1070 frustrates La Hermosa’s goals or forces La 7 Hermosa to expend or divert resources. La Hermosa’s primary purpose is to “promote 8 Christian values.” (Id. ¶ 31.) S.B. 1070 does not directly target or impact La Hermosa’s 9 mission and, without additional allegations, Plaintiffs have not alleged a perceptible 10 impairment to La Hermosa’s ability to promote Christian values or assist others in need. In 11 addition, Plaintiffs do not allege how S.B. 1070 has forced La Hermosa to divert resources 12 other than to “defend[] against the harms caused by this legislation” and address “hostility 13 towards the Latino community.” (Id. ¶¶ 34-35.) The connection between S.B. 1070 and La 14 Hermosa’s work is too tenuous to give rise to an injury in fact without additional allegations 15 that La Hermosa’s mission is frustrated in some specific and identifiable way by S.B. 1070 16 and that La Hermosa has diverted resources for some identified purpose. See Redondo Beach, 17 607 F.3d at 1183. Similarly, Plaintiffs’ allegation that parishioners will be unable or 18 unwilling to leave their houses to attend services at La Hermosa is insufficient to establish 19 an injury in fact because a speculative fear of future harm is inadequate. S.B. 1070 is not 20 directed at religious practices, and any incidental effect on La Hermosa’s attendance is too 21 speculative and indirect for purposes of standing. See Mayfield, 599 F.3d at 974. 22 Plaintiffs’ Proposed SAC also contains additional allegations related to CONLAMIC. 23 (Proposed SAC ¶¶ 36-40.) Specifically, Plaintiffs now allege that CONLAMIC’s mission is 24 to “educate and empower Latino churches” and that S.B. 1070 has forced CONLAMIC to 25 “divert its resources away from its core mission to spend countless hours educating members 26 about the effects and impact of the law.” (Id. ¶ 37.) CONLAMIC’s mission is not directly 27 impacted or regulated by S.B. 1070, nor is it clear how S.B. 1070 frustrates CONLAMIC’s 28 religious mission to educate and empower Latino churches. Without more, Plaintiffs have - 16 - 1 not demonstrated that S.B. 1070 has frustrated CONLAMIC’s goals and required 2 CONLAMIC to divert resources. See Redondo Beach, 607 F.3d at 1183. In addition, 3 Plaintiffs do not allege, and it is not clear from CONLAMIC’s organizational mission, that 4 S.B. 1070 has perceptibly impaired CONLAMIC’s ability to provide the services that 5 CONLAMIC was formed to provide. See Havens, 455 U.S. at 379. 6 Plaintiffs’ Motion for Leave to File Second Amended Complaint is denied because 7 Plaintiffs’ Proposed SAC fails to allege sufficient facts establishing standing and is, as a 8 result, subject to dismissal. See Moore, 885 F.2d at 538. Since the deficiencies in Plaintiffs’ 9 pleadings could be cured by amendment, Plaintiffs’ Motion to Amend is denied without 10 prejudice. 11 IT IS ORDERED granting Defendants Brewer, Arizona, Goddard and Arpaio’s 12 Motions to Dismiss (Docs. 30, 31, 26). Plaintiffs’ Amended Complaint is dismissed without 13 prejudice for lack of standing. Plaintiffs are directed to file any amendments to their pleading 14 within 30 calendar days of the date of this Order. 15 IT IS FURTHER ORDERED granting Defendants Brewer and Arizona’s Motion 16 to Dismiss the State of Arizona (Doc. 30). All claims against the State of Arizona are 17 dismissed with prejudice because Arizona has not waived sovereign immunity in this case. 18 IT IS FURTHER ORDERED denying without prejudice Plaintiffs’ Motion for 19 20 Leave to File Second Amended Complaint (Doc. 35). DATED this 10th day of December, 2010. 21 22 23 24 25 26 27 28 - 17 -
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