Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Robert L. Schulz and John v. Douglas Kellner

July 7, 2011

ROBERT L. SCHULZ AND JOHN LIGGETT, PLAINTIFFS,
v.
DOUGLAS KELLNER, INDIVIDUALLY AND AS COMMISSIONER OF THE NEW YORK STATE BOARD OF ELECTIONS; EVELYN AQUILA, INDIVIDUALLY AND AS COMMISSIONER OF THE NEW YORK STATE BOARD OF ELECTIONS; HELENA MOSES DONAHUE, INDIVIDUALLY; JAMES A. WALSH, AS COMMISSIONER OF THE NEW YORK STATE BOARD OF ELECTIONS; AND GREGORY P. PETERSON, AS COMMISSIONER OF THE NEW YORK STATE BOARD OF ELECTIONS,*FN1 DEFENDANTS.



MEMORANDUM-DECISION and ORDER

I. INTRODUCTION

Presently before the Court is a Motion to dismiss Plaintiffs' amended complaint (Dkt. No. 21), filed by Defendants Douglas Kellner, Evelyn Aquila, Helena Moses Donahue, James A. Walsh, and Gregory P. Peterson ("Defendants"), all of whom are former or current Commissioners of the New York State Board of Elections ("the Board"). Dkt. No. 367 ("Motion"). Plaintiffs filed a Response in opposition to the motion ("Opposition") (Dkt. No. 374) on January 5, 2011, and Defendants filed their Reply on January 18, 2011 ("Defs.' Reply") (Dkt. No. 377). For the reasons that follow, the Court grants Defendants' Motion.

II. BACKGROUND

This action originated as a multi-state suit that included claims filed by over one hundred and fifty pro se Plaintiffs from all fifty states against their respective states, those states' boards of elections, and individuals involved in their states' election process. Dkt. Nos. 22-24, 36, 39, 70, 94, 95, 99, 108, 111, 128, 135, 136 140, 144, 147, 149, 152, 154, 162-64, 166-72, 175, 179, 180, 183-86, 188-90, 192, 194-200, 203-05. Plaintiffs filed their Amended Complaint on November 1, 2007, asserting that the vote counting process for the 2008 elections violated their voting rights, contract rights, and constitutional rights. See Amended Complaint ("Am. Compl.") (Dkt. No. 21) ¶¶ 228-62. Specifically, Plaintiffs allege that (1) Defendants' voting procedures constitute an impermissible burden upon their rights under the First and Fourteenth Amendments; (2) Defendants' failure to manually count all ballots in public view at each polling station "impair[s] the obligation of contracts" in violation of the Constitution, based on the assertion that "[f]ormally registering with the State to vote . . . is a contract"; and (3) Defendants are required by the Constitution to follow a set of voting procedures submitted by Plaintiffs and have failed to do so. Id. ¶¶ 247, 252, 262.

The initial Defendants filed fifty-two Motions to dismiss the amended complaint, and Plaintiffs filed a Cross-Motion for summary judgment and in opposition to Defendants' motions to dismiss. Dkt. No. 223 ("Plaintiffs' Cross-Motion"). Instead of filing a duplicative motion, the present Defendants joined in the other co-Defendants' Motions, and specifically joined then-Defendant State of Wisconsin's Motion to dismiss ("Wisconsin Motion") (Dkt. No. 162) on the grounds that the out-of-state Plaintiffs lacked standing. Todd Valentine Declaration (Dkt. No. 199-2) ¶ 21. The affidavit filed by Defendants' attorney further stated that "none of the plaintiffs except Robert Schulz, Arthur Berg and John Liggett has any standing to sue the New York defendants . . . ." Id. ¶ 20.

On June 4, 2008, the Court issued an Order granting fifty-one of Defendants' fifty-two Motions to dismiss while staying Plaintiffs' Cross-Motion. Dkt. No. 303 ("June 4, 2008 Order"). The Court agreed with those Motions to dismiss that argued that Plaintiffs lacked standing to sue Defendants that were located outside of Plaintiffs' states. Id. at 3-4. The Court concluded that "each of the Plaintiffs' standing is limited so as to only have standing against the Individual Defendants in the Plaintiff's own state." Id. at 4. The main focus of the June 4, 2008 Order was on the issue of personal jurisdiction, which the Court concluded it only had over the New York Defendants.*fn2 Id. at 4-9. As a result, only New York Plaintiffs*fn3 and Defendants who were then State Commissioners of Elections in New York ("Election Commissioners") remain as parties to this action, with the addition of two more Election Commissioners pursuant to FED. R. CIV. P. 25(d). Id.; Dkt. No. 344 at 2. The Court denied Plaintiffs' Cross-Motion on September 22, 2008, and discovery in this matter has since proceeded.*fn4 Dkt. No. 328.

On October 13, 2009, Defendants filed an Amended Answer asserting as affirmative defenses (1) that Plaintiffs fail to state a claim upon which relief can be granted; (2) that their actions and conduct "at all relevant times have been fully in compliance with all applicable federal and state constitutional provisions, statutes and regulations"; and (3) that they are entitled to qualified immunity from suit. Dkt. No. 343 ¶¶ 15-17. Over a year later, on December 6, 2010, Defendants filed this Motion to dismiss for lack of subject matter jurisdiction pursuant to FED. R. CIV. P. 12(b)(1). Dkt. No. 367.

III. STANDARD OF REVIEW

In considering a motion to dismiss pursuant to FED. R. CIV. P. 12(b)(1), a court must "accept all factual allegations in the complaint as true and draw inferences from those allegations in the light most favorable to the plaintiff." Jaghory v. N.Y. State Dep't of Educ., 131 F.3d 326, 329 (2d Cir. 1997). "Dismissal is inappropriate unless it appears beyond doubt that the plaintiff can prove no set of facts which would entitle him or her to relief." Raila v. United States, 355 F.3d 118, 119 (2d Cir. 2004). However, it is the plaintiff who bears the burden of establishing subject matter jurisdiction by a preponderance of the evidence. Aurrechione v. Schoolman Transp. Sys., Inc., 426 F.3d 635, 638 (2d Cir. 2005). Furthermore, subject matter jurisdiction may not be established by drawing inferences from the pleadings favorable to the plaintiff. Shipping Fin. Serv. Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir. 1998); see also London v. Polishook, 189 F.3d 196, 199 (2d Cir. 1999) (the party invoking subject matter jurisdiction must "proffer the necessary factual predicate -- not just an allegation in a complaint -- to support jurisdiction."). Thus, the district court may refer to evidence outside the pleadings, including affidavits or other evidence submitted by the parties, in determining whether subject matter jurisdiction exists. Luckett v. Bure, 290 F.3d 493, 496-97 (2d Cir. 2002); Arndt v. UBS AG, 342 F. Supp. 2d 132, 137 (E.D.N.Y. 2004). Finally, "[i]f the court determines at any time that it lacks subject matter jurisdiction, the court must dismiss the action." FED. R. CIV. P. (h)(3).

IV. DISCUSSION

Defendants assert that (1) Plaintiffs lack standing to bring this lawsuit; (2) Plaintiffs' constitutional claims are moot; and (3) in the absence of any viable federal claims, the Court lacks jurisdiction over Plaintiffs' breach of contract claim.*fn5 Defs.' Memorandum of law in support of dismissal of Pls.' amended complaint ("DML") at 4.

Article III of the Constitution grants federal courts limited jurisdiction over only "[c]ases" and "[c]ontroversies." U.S. CONST. art. III, § 2, cl. 1; Lujan v. Defenders of Wildlife, 504 U.S. 555, 559 (1992). One element of this case-or-controversy requirement requires a plaintiff to establish that he has standing to sue. Raines v. Byrd, 521 U.S. 811, 818 (1997) (citing Lujan, 504 U.S. at 561). Another element requires that "an actual controversy . . . be extant at all stages of review, not merely at the time the complaint is filed." Arizonans for Official English v. Ariz., 520 U.S. 43, 67 (1997) (citing Preiser v. Newkirk, 422 U.S. 395, 401 (1975)). If either of these elements is lacking, the Court must dismiss the action for lack of subject matter jurisdiction. FED. R. CIV. P. 12(h)(3); see also Lujan, 504 U.S. at 560 ("[T]he core component of standing is an essential and unchanging part of the case-or-controversy requirement of Article III"); Preiser, 422 U.S. at 401, 404.

As a threshold matter, Plaintiffs claim that Defendants may not move to dismiss the case for lack of subject matter jurisdiction at this juncture because they did not raise the issue in earlier pleadings. PML at 1-4. However, courts "have an independent obligation to consider the presence or absence of subject matter jurisdiction sua sponte." Joseph v. Leavitt, 465 F.3d 87, 89 (2d Cir. 2006). Indeed, Rule 12(h)(3) of the Federal Rules requires that "[i]f the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action." FED. R. CIV. P.12(h)(3) (emphasis added). This ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.