Posts
No. _______
In The
Supreme Court of the United States
K
EVIN
O’R
OURKE
, N
ATHANIEL
L. C
ARTER
,L
ORI
C
UTUNILLI
, L
ARRY
D. C
OOK
, A
LVIN
C
RISWELL
,K
ESHA
C
RENSHAW
, N
EIL
Y
ARBROUGH
,
AND
A
MIE
T
RAPP
,
Petitioners,
v.D
OMINION
V
OTING
S
YSTEMS
, I
NC
., F
ACEBOOK
, I
NC
.
K
/
N
/
A
M
ETA
, I
NC
., C
ENTER FOR
T
ECH AND
C
IVIC
L
IFE
,M
ARK
Z
UCKERBERG AND
P
RISCILLA
C
HAN
,
Respondents.
LANTAGNE LEGAL PRINTING801 East Main Street Suite 100 Richmond, Virginia 23219 (800) 847-0477
ON PETITION FOR WRIT OF CERTIORARITO THE UNITED STATES COURT OF APPEALSFOR THE TENTH CIRCUIT
APPENDIX ERNEST WALKER
GARY FIELDER
Counsel of Record 1435 Stuart St.3368 Riverside Rd. Denver, CO 80204Benton Harbor, MI (303) 650-1505(303) 995-4835 gary@fielderlaw.neternestjwalker@gmail.com
Counsel for Petitioners
September 26, 2022
APPENDIX TABLE OF CONTENTS
Order and Judgment of the United StatesCourt of Appeals for the Tenth Circuit,filed May 27, 2022 .............................................. App. 1Order of the United States District Courtfor the District of Colorado,filed April 28, 2021 ............................................. App. 9Order on Rehearing of the United StatesCourt of Appeals for the Tenth Circuit,filed June 27, 2022 ........................................... App. 4542 U.S.C. § 1983 ............................................... App. 4642 U.S.C. § 1988 ............................................... App. 46Federal Rule of Civil Procedure 15 Amended and Supplemental Pleading ............ App. 48
App. 1
FILED May 27, 2022Christopher M. WolpertClerk of CourtUNITED STATES COURT OF APPEALSFOR THE TENTH CIRCUIT
No. 21-1161(D.C. No. 1:20-CV-03747-NRN)(D. Colo.)KEVIN O’ROURKE; NATHANIEL L. CARTER;LORI CUTUNILLI; LARRY D. COOK; ALVINCRISWELL; KESHA CRENSHAW; NEIL YARBROUGH; AMIE TRAPP,Plaintiffs - Appellants,v.DOMINION VOTING SYSTEMS, INC., a Delawarecorporation; FACEBOOK, INC., a Delawarecorporation; CENTER FOR TECH AND CIVICLIFE; MARK E. ZUCKERBERG, individually;PRISCILLA CHAN, individually,Defendants – Appellees
ORDER AND JUDGMENT*
Before
TYMKOVICH
, Chief Judge,
HOLMES
and
ROSSMAN
, Circuit Judges.* After examining the briefs and appellate record,this panel has determined unanimously that oralargument would not materially assist in thedetermination of this appeal.
See
Fed. R. App. P.34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
App. 2ordered submitted without oral argument. Thisorder and judgment is not binding precedent, exceptunder the doctrines of law of the case, res judicata,and collateral estoppel. It may be cited, however, forits persuasive value consistent with Fed. R. App. P.32.1 and 10th Cir. R. 32.1.Plaintiffs appeal from the district court’sdismissal of their 42 U.S.C. § 1983 suit for lack ofstanding. Exercising jurisdiction under 28 U.S.C. §1291, we affirm.
BACKGROUND
After the November 3, 2020, election forPresident of the United States, eight registeredvoters from several states filed a class actioncomplaint in the District of Colorado alleging thatDefendants (all private entities and individuals) hadinfluenced or interfered with the election in violationof various constitutional provisions. Relying on theirstatus as registered voters for standing, Aplt. App. Aat 98, Plaintiffs alleged that Defendants’ conduct“hurt[] every registered voter in the country, nomatter whose side the voter is on,”
id.
at 82;“damaged the Plaintiffs, but more broadly, everyregistered voter in America, all of whom have aninterest in free and fair elections to determine thePresident of the United States of America,”
id.
at 85;and “violated the rights of Plaintiffs and allregistered voters in the United States,”
id.
at 88. Asrecompense, they requested a declaratory judgment,a permanent injunction enjoining Defendants “fromcontinuing to burden the rights of the Plaintiffs and
App. 3all similarly situated registered voters,”
id.
at 96,and “nominal” damages of $1,000 per registeredvoter, totaling approximately $160 billion,
id.
at 99.Defendants Dominion Voting Systems, Inc.,Facebook, Inc. (now known as Meta Platforms, Inc.),and Center for Tech and Civic Life moved to dismiss.Plaintiffs then moved for leave to file an amendedcomplaint. After hearing oral arguments on themotions, the district court dismissed the suit for lackof Article III standing. The court held that Plaintiffsasserted a non-justiciable generalized grievance,because “by their own admission, Plaintiffs’ claimedinjuries are no different than the supposed injuriesexperienced by all registered voters.” Aplt. App. F at1528. “Plaintiffs allege no particularized injurytraceable to the conduct of Defendants, other thantheir general interest in seeing elections conductedfairly and their votes fairly counted.”
Id.
at 1530.The court also denied Plaintiffs’ motion to amend,holding that their proposed amended complaintfailed to remedy the lack of standing.
DISCUSSIONI. Lack of Standing
“[T]he core component of standing is an essentialand unchanging part of the case-or-controversyrequirement of Article III.”
Lujan v. Defenders ofWildlife
, 504 U.S. 555, 560 (1992). We review denovo a decision regarding a plaintiff’s Article IIIstanding.
See Benham v. Ozark Materials RiverRock, LLC
, 885 F.3d 1267, 1272 (10th Cir. 2018).“When evaluating a plaintiff’s standing at themotion to dismiss stage, both the trial and reviewing
App. 4courts must accept as true all material allegations ofthe complaint, and must construe the complaint infavor of the complaining party.”
United States v.Sup. Ct. of N.M.
, 839 F.3d 888, 899 (10th Cir. 2016)(brackets and internal quotation marks omitted).It is Plaintiffs’ burden to establish theirstanding.
Lujan
, 504 U.S. at 561. To do so, they mustshow three elements: (1) an injury in fact, that (2)has a causal connection to Defendants’ action(s), andthat (3) is likely to be redressed by a favorabledecision.
See id.
at 560-61.This appeal involves the first requirement ofinjury in fact. To establish injury in fact, Plaintiffsmust show they suffered “an invasion of a legallyprotected interest” that is “concrete andparticularized” and “actual or imminent, notconjectural or hypothetical.”
Id.
at 560 (internalquotation marks omitted). “Particularized” “mean[s]that the injury must affect the plaintiff in a personaland individual way.”
Id.
at 560 n.1.In light of the requirement that injury beparticularized, the Supreme Court has rejectedstanding based only on “a generalized grievanceshared in substantially equal measure by all or alarge class of citizens.”
Warth v. Seldin
, 422 U.S.490, 499 (1975) (internal quotation marks omitted).That means that a plaintiff who is “claiming onlyharm to his and every citizen’s interest in properapplication of the Constitution and laws, andseeking relief that no more directly and tangiblybenefits him than it does the public at large . . . doesnot state an Article III case or controversy.”
Lance v.Coffman
, 549 U.S. 437, 439 (2007) (per curiam)(rejecting challenge to Colorado’s state redistrictingprocedures) (internal quotation marks omitted).
App. 5Plaintiffs aver that Defendants’ conduct withregard to the 2020 Presidential election violated theconstitutional rights of every registered voter in theUnited States. That is a generalized grievance.
Seeid.
at 442 (holding that the plaintiffs lacked standingbecause “[t]he only injury plaintiffs allege is that thelaw—specifically the Elections Clause—has not beenfollowed. This injury is precisely the kind ofundifferentiated, generalized grievance about theconduct of government that we have refused tocountenance in the past.”);
see also Carney v. Adams
,141 S. Ct. 493, 499 (2020) (generalized grievancethat plaintiff, “like all citizens of Delaware, must liveand work within a State that (in his view) imposesunconstitutional requirements for eligibility on threeof its courts”);
Gill v. Whitford
, 138 S. Ct. 1916, 1930(2018) (generalized grievance to complain aboutgerrymandering unless the plaintiff lives in agerrymandered district);
Hollingsworth v. Perry
, 570U.S. 693, 706 (2013) (generalized grievance whereplaintiffs’ “only interest in having the District Courtorder reversed was to vindicate the constitutionalvalidity of a generally applicable California law”);
Hotze v. Hudspeth
, 16 F.4th 1121, 1124 (5th Cir.2021) (generalized grievance where “plaintiffsasserted . . . that drive-thru voting hurt the‘integrity’ of the election process”);
Wood v.Raffensperger
, 981 F.3d 1307, 1314 (11th Cir. 2020)(generalized grievance where registered voter basedstanding on interest in ensuring that only lawfulballots were counted),
cert. denied
, 141 S. Ct. 1379(2021);
Bognet v. Sec’y Commonwealth of Pa.
, 980F.3d 336, 349 (3d Cir. 2020) (generalized grievancewhere “Plaintiffs . . . theorize their harm as the rightto have government administered in compliance with
App. 6the Elections Clause and Electors Clause”),
cert. granted and judgment vacated
, 141 S. Ct. 2508(2021),
dismissed as
moot
, 849 F. App’x 37, 38 (3dCir. 2021). Accordingly, no matter how strongly Plaintiffsbelieve that Defendants violated voters’ rights in the2020 election, they lack standing to pursue thislitigation unless they identify an injury tothemselves that is distinct or different from thealleged injury to other registered voters.
See Carney
,141 S. Ct. at 499 (“Lawyers, such as [the plaintiff],may feel sincerely and strongly that Delaware’s lawsshould comply with the Federal Constitution. Butthat kind of interest does not create standing.Rather, the question is whether [the plaintiff] willsuffer a personal and individual injury beyond thisgeneralized grievance[.]” (citation and internalquotation marks omitted));
Hollingsworth
, 570 U.S.at 706 (“[A] ‘generalized grievance,’ no matter howsincere, is insufficient to confer standing.”);
Diamondv.
Charles
, 476 U.S. 54, 66-67 (1986) (“Article IIIrequires more than a desire to vindicate valueinterests. It requires an injury in fact thatdistinguishes a person with a direct stake in theoutcome of a litigation—even though small—from aperson with a mere interest in the problem.”(citation and internal quotation marks omitted)).Plaintiffs state generally that they each suffered a“particularized injury,” Aplt. Opening Br. at 23, andthey recognize that they “must demonstrate apersonal stake in the outcome,”
id.
at 25 (internalquotation marks omitted). Yet their appellate briefsfail to identify any injury to any named plaintiff thatis in any way different than the alleged injuries toevery registered voter in the United States.
App. 7 Accordingly, Plaintiffs have not established that thedistrict court erred in dismissing the action forlack of standing.
II. Denial of Leave to Amend
We generally review denial of leave to amend forabuse of discretion, “[b]ut when a district courtdenies leave to amend because amendment would befutile, our review for abuse of discretion includes denovo review of the legal basis for the finding offutility.”
Castanon v. Cathey
, 976 F.3d 1136, 1144(10th Cir. 2020) (internal quotation marks omitted).The proposed amended complaint sought to add152 additional plaintiffs, bringing the total numberof plaintiffs to 160 from 38 states. It further soughtto certify a class of all registered voters in the UnitedStates, alleging that the class “consist[s] of millionsof registered voters that make up the people of theUnited States of America, and whose rights andinterests have been directly burdened.” Aplt. App. Dat 890. But Plaintiffs fail to show that any of theproposed additional plaintiffs had any injuries thatwere distinct or different from the injuries allegedlysuffered by every registered voter in the UnitedStates. Therefore, for the reasons discussed above,the proposed amended complaint failed to establishany plaintiff had Article III standing, and thedistrict court did not err in concluding that allowingamendment would be futile.
App. 8
CONCLUSION
The district court’s judgment is affirmed.Entered for the CourtTimothy M. TymkovichChief Judge
App. 9
IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF COLORADO
Civil Action No. 20-cv-03747-NRNKEVIN O’ROURKE, NATHANIEL L. CARTER,LORI CUTUNILLI, LARRY D. COOK, ALVIN CRISWELL, KESHA CRENSHAW,NEIL YARBROUGH, and AMIE TRAPP,Plaintiffs,v.DOMINION VOTING SYSTEMS INC., a Delawarecorporation, FACEBOOK, INC., a Delawarecorporation, CENTER FOR TECH AND CIVICLIFE, an Illinois non-profit organization, MARK E.ZUCKERBERG, individually, PRISCILLA CHAN,individually, BRIAN KEMP, individually, BRADRAFFENSPERGER, individually, GRETCHENWHITMER, individually, JOCELYN BENSON,individually, TOM WOLF, individually, KATHYBOOCKVAR, individually, TONY EVERS,individually, ANN S. JACOBS, individually, MARKL. THOMSEN, individually, MARGE BOSTELMAN,individually, JULIE M. GLANCEY, DEANKNUDSON, individually, ROBERT F. SPINDELL,JR, individually, and DOES 1-10,000,Defendants.
ORDER ON DEFENDANTS’ MOTIONS TODISMISS
(
Dkt. ##22, 23, & 41) & PLAINTIFFS’MOTION TO AMEND (Dkt. #48)
N. REID NEUREITERUnited States Magistrate Judge
App. 10This matter is before the Court with the consentof the Parties, referred for all purposes by ChiefJudge Philip A. Brimmer pursuant to 28 U.S.C. §636(c).This lawsuit arises out of the 2020 election forPresident of the United States. The originalComplaint, filed December 22, 2020 (Dkt. #1) andwhich purports to be a class action lawsuit broughton behalf of 160 million registered voters, alleges avast conspiracy between four state governors;secretaries of state; and various election officials ofMichigan, Wisconsin, Pennsylvania and Georgia;along with Dominion Voting Systems, Inc.—aprivate supplier of election and voting technology;the social media company Facebook, Inc.; the Centerfor Tech and Civic Life (“CTCL”)—a non-profitorganization dedicated to making elections moresecure and inclusive; as well as Facebook founderMark Zuckerberg and his wife Priscilla Chan.I use the words “vast conspiracy” advisedly. Thatis what the Complaint, all 84 pages and 409-plusparagraphs, alleges: that “the Defendants engagedin concerted action to interfere with the 2020presidential election through a coordinated effort to,among other thing, change voting laws withoutlegislative approval, use unreliable voting machines,alter votes through an illegitimate adjudicationprocess, provide illegal methods of voting, countillegal votes, suppress the speech of opposing voices,disproportionally and privately fund only certainmunicipalities and counties, and other methods, allprohibited by the Constitution.” Dkt. #1 at 2, ¶ 4.The named Plaintiffs are from Virginia (KevinO’Rourke), Michigan (Nathaniel Carter and KeshaCrenshaw), Colorado (Lori Cutunilli and Neil
App. 11 Yarbrough), Alaska (Alvin Criswell), California(Larry D. Cook), and Alabama (Amie Trapp).Plaintiffs’ affidavits, attached to the Complaint,shed light on the personal feelings and motivationsin bringing this suit, highlighting their personalanguish stemming from the 2020 presidentialelection. For example, Mr. O’Rourke, a Virginiacertified public accountant and a self-professed “freeman, born of a free woman and free man,” explains:I have lost any faith in the existing form ofgovernment and technology monopolies; I amangry; I am frustrated; I cannot sleep atnight; I suffer from anxiety as a result of thisuncertainty; I have lost my desire tocommunicate with most people openly andremain guarded as to my interactions andcommunication with every day people; I feelI have no voice, no rights, and I have been100% abandoned by the government in all itsforms[.]Dkt. #1-2 at ¶ 36.Mr. Carter, a 55-year old Michigander fromBenton Harbor, swears thatDOMINION and others were aware orshould have been aware that machines areunreliable, and susceptible to manipulationby unethical administrators, outside actors,foreign countries, and from employees andcontractors from inside DOMINION. Ibelieve that as a result, my vote during the2020 Presidential Election was effectively
App. 12not counted, and the results of the electionwere predetermined. . . . I believe my votehas be [sic] discounted or eliminated all-together from consideration regarding thechoice for the country’s highest office.Dkt. #1-3 at ¶ 19–22. And Ms. Cutunilli, a business owner andgrandmother in Summit County, Colorado, believesthat her “constitutional right to participate in fairand honest elections has been violated with [her]vote suppressed.” She says, “While I once trusted inthe fairness of the United States electoral system Ino longer do, with the Dominion Voting Systembeing utilized in Colorado and around the country aswell as private ‘donations’ being unconstitutionallydistributed and accepted to interfere with thelegitimacy of our elections.”
Id.
The affidavits of the other Plaintiffs are similarin tone and reflect similar beliefs and sentiments,
1
summarized in the concluding pages of theComplaint, “The shared, foreboding feeling ofimpending doom is presently felt by tens of millionsof people. All across the country there is a fear thatthe people are losing their liberty.” Dkt. #1 at 82.The Complaint asserts seven separate counts.Plaintiffs allege (1) violation of the Electors Clause
1
Plaintiff Larry D. Cook, although convinced that there “waswidespread vote fraud and manipulation during the 2020Presidential Election” is somewhat anomalous, as his affidavitappears to focus on his anti-vaccination beliefs, his support of Qand other Qanon conspiracy theorists, and his distress athaving had his anti-vaccine Facebook page and Qanon-relatedpages removed from the platform.
See
Dkt. #1-6.
App. 13and imposing of an unconstitutional burden on theright to vote for President and Vice-President; (2)violation of equal protection; (3) violation of dueprocess; (4) the imposition of an unconstitutionalburden on the rights to political speech, the right toassociate, and freedom of the press; (5) a“Constitutional Challenge” to the actions ofFacebook and Mr. Zuckerberg as somehowburdening the Plaintiffs’ right to free speech and freepress, and questioning whether 47 U.S.C. § 230(c)applies to Facebook; (6) a request for a declaratory judgment that each of the Defendants actedunconstitutionally; and (7) a permanent injunction.For relief, Plaintiffs in their Complaint seek amishmash of outcomes, ranging from a permanentinjunction restraining Defendants from any furtherunconstitutional behavior, to a declaratory judgmentthat 47 U.S.C. §230(c) is unconstitutional as appliedto the actions of the Facebook and Mr. Zuckerberg,to a declaration that the actions of the Defendantsare unconstitutional and ultra vires “making themlegal nullities,” to a damage award in the “nominalamount of $1,000 per registered voter [which] equalsdamages in the approximate amount of $160 billiondollars” for the alleged Constitutional wrongsPlaintiffs have suffered. Dkt. #1 at 82–83.The Defendants who have been served moved todismiss on a number of grounds, including pursuantto Rule 12(b)(1) (lack of subject matter jurisdiction);12(b)(2) (lack of personal jurisdiction), and 12(b)(6)(failure to state a claim). See Dkt. ##22, 23, 41, 46,47, & 49.
App. 14
Procedural Background, Pending and MootedMotions
Plaintiffs filed suit on December 22, 2020.On February 16, 2021, Dominion filed its Motionto Dismiss.
See
Dkt. #22. Facebook filed its ownMotion to Dismiss the same day.
See
Dkt. #23.On February 26, 2021, the Court stayed alldisclosures and discovery pending resolution of theMotions to Dismiss.
See
Dkt. #28 (Minute Order).Rather than filing an Amended Complaint as amatter of right, Plaintiffs filed oppositions to the twoMotions to Dismiss on March 9, 2021.
See
Dkt. ##38& 39.On March 10, 2021, the Center for Tech andCivic Life (“CTCL”) filed its own Motion to Dismiss.
See
Dkt. #41.On March 15, 2021, Michigan GovernorGretchen Whitmer and Michigan Secretary of StateJocelyn Benson filed a Motion to Dismiss.
See
Dkt. #46. The same day, Georgia Governor Brian Kempand Georgia Secretary of State Brad Raffenspergeralso filed a Motion to Dismiss.
See
Dkt. #47. And onMarch 18, 2021, Pennsylvania Governor Tom Wolfand Pennsylvania Acting Secretary ofCommonwealth Veronica Degraffenreid also filed aMotion to Dismiss.
See
Dkt. #49.In the meantime, on March 15, 2021, Plaintiffsfiled a Motion for Leave to File an AmendedComplaint, attaching a redlined version of theproposed Amended Complaint.
See
Dkt. #48. Theproposed Amended Complaint seeks to add 152 newplaintiffs from 33 different states and breaks theproposed national class of registered voters intosubclasses of Republicans, Democrats, Third-Parties,
App. 15Independents, and “Disgruntled Voters.” Theproposed Amended Complaint adds six causes ofaction (including racketeering claims under thefederal Racketeer Influenced and CorruptOrganization Act (“RICO”) against Facebook, CTCL,Zuckerberg and Chan) and 473 paragraphs.On March 23, 2021, Facebook and Dominionfiled their replies in support of their Motions toDismiss.
See
Dkt. ##55 & 56.On March 29, 2021, each of the Defendantgroups filed responses objecting to Plaintiffs’ Motionfor Leave to File the Amended Complaint.
See
Dkt. #58 (Kemp/Raffensperger), #59 (Boockvar/Wolf), #60(Benson/Whitmer), #61 (Dominion), #62 (CTCL), & #63 (Facebook.).On April 8, 2021, Plaintiffs filed multiple repliesin support of their Motion for Leave to File an Amended Complaint.
See
Dkt. ##71, 73, 74, 75, 76, &77.Plaintiffs initially filed responses opposing thevarious government official defendants’ Motions toDismiss.
See
Dkt. #72 (opposing Wolf andDegraffenreid’s Motion to Dismiss), #79 (opposingKemp and Raffensberger’s Motion to Dismiss); & #80(opposing Whitmer and Benson’s Motion to Dismiss).But then, a few days later, on April 19 and 20, 2021,Plaintiffs’ voluntarily dismissed the governmentofficial defendants from the case.
See
Dkt
.
##82–85,& 87.Thus, remaining for determination are theMotions to Dismiss of Defendants Dominion (Dkt. #22), Facebook (Dkt. #23), and CTCL (Dkt. #41), andPlaintiffs’ Motion for Leave to Amend the Complaint(Dkt. #48). The Motions to Dismiss filed by thegovernment official defendants will be denied as
App. 16moot, as those defendants have been voluntarilydismissed.
Standard for Considering Rule 12(b)(1) Motionto Dismiss for Lack of Jurisdiction
Rule 12(b)(1) provides for dismissal of an actionfor “lack of subject matter jurisdiction.”
See
Fed. R.Civ. P. 12(b)(1). To survive a motion to dismiss underRule 12(b)(1), Plaintiff bears the burden ofestablishing that the Court has subject matter jurisdiction under Rule 12(b)(1).
Lujan v. Defendersof Wildlife
, 504 U.S. 555, 560–61 (1992).
Standard for Failure to State a Claim UnderRule 12(b)(6)
To survive a motion to dismiss under Rule12(b)(6), a complaint must contain enough facts “tostate a claim to relief that is plausible on its face.”
Ashcroft v. Iqbal
, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly
, 550 U.S. 544, 570(2007)). “Mere ‘labels and conclusions’ and ‘aformulaic recitation of the elements of a cause ofaction’ are insufficient.”
Morman v. Campbell Cty.Mem’l Hosp.
, 632 F. App’x 927, 931 (10th Cir. 2015).Thus, “a court should disregard all conclusorystatements of law and consider whether theremaining specific factual allegations, if assumed tobe true, plausibly suggest the defendant is liable.”
Kan. Penn Gaming, LLC v. Collins
, 656 F.3d 1210,1214 (10th Cir. 2011).
App. 17
Plaintiffs lack Article III standing so the Courtlacks jurisdiction to hear the case.
Defendants make numerous arguments as towhy Plaintiffs’ Complaint should be dismissed,including lack of personal jurisdiction, failure tostate a constitutional claim because the remainingDefendants are not state actors, failure to plausiblyallege violation of constitutional rights, and relianceon Section 230 of the Communications Decency Act.But one argument appears in all the Motions and,even without addressing the myriad others, itultimately proves fatal to Plaintiffs’ case. Thedecisive argument is that the Plaintiffs have notdemonstrated a judicially cognizable interest orinjury sufficient to grant them standing to sue. WithPlaintiffs not having standing to sue, there is no caseor controversy, a necessary predicate for federalcourt jurisdiction under Article III of theConstitution.Federal courts are not “constituted as free-wheeling enforcers of the Constitution and laws.”
Initiative & Referendum Inst. v. Walker
, 450 F.3d1082, 1087 (10th Cir. 2006) (en banc). As theSupreme Court “ha[s] often explained,” we areinstead “courts of limited jurisdiction.”
Home DepotU.S.A., Inc. v. Jackson
, ––– U.S. ––––, 139 S. Ct.1743, 1746 (2019) (internal quotation marksomitted). Article III of the Constitution establishesthat the jurisdiction of the federal courts reachesonly “Cases” and “Controversies.” U.S. Const. art.III, § 2. Absent a justiciable case or controversybetween interested parties, a federal court lacks the“power to declare the law.”
Steel Co. v. Citizens for a Better Env’t
, 523 U.S. 83, 94 (1998).
App. 18 Article III standing requires Plaintiffs to havepersonally suffered (1) a concrete and particularizedinjury (2) that is traceable to the conduct theychallenge, and that (3) would likely be redressed by afavorable decision.
Spokeo, Inc. v. Robins
, 136 S. Ct.1540, 1547 (2016). At the pleading stage, anycomplaint filed in federal court must “clearly allegefacts demonstrating each element.”
Id.
(quotationmarks and alterations omitted). A particularizedinjury is one that “affect[s] the plaintiff in a personaland individual way.”
Id
. at 1548 (internal quotationmarks omitted).The gravamen of Plaintiffs’ Complaint,confirmed by a review of their attached affidavits, isthe general assertion that allegedly illegal conductoccurred in multiple states across the country duringthe recent Presidential election, resulting inPlaintiffs’ votes (to the extent each Plaintiff actuallyvoted—some admit they did not) being diluted ordiscounted in some way, to the point where theirvotes did not matter.
2
The allegedly illegal conductsupposedly included facilitating the use of moreabsentee ballots than Plaintiffs think waspermissible; the unequal placement of ballot drop
2
See
Aff. of Kesha Crenshaw (Dkt. #1-7) (“I am routinely toldby people, even my husband, that my vote didn’t matter, andthat voting is just wasting my time. . . . I have watched whathappened on Election Day and since, and now realize that thepeople who warned me that my vote didn’t count were right. Iknow that I did cast a ballot and voted in the election, butbased on reports that I have seen, I have no faith that theoutcomes reported are actually the votes that were cast, or thatmy vote was counted at all. . . . I can see with my own eyes the‘irregularities’ that have been reported, and know what I see isnot right, has not been explained, and calls into doubt thelegitimacy of the election.”).
App. 19boxes; the modification of various state voting rulesin a way Plaintiffs believe was inconsistent withstate law; the publication by Facebook of certainmessages and Facebook’s selective censorship ofothers; the implementation by municipalities acrossthe country of allegedly inaccurate vote-countingtechnologies; and the charitable funding of certainmunicipalities’ voting inclusion and securityprograms.But whatever the grievances, the disputedconduct and the resulting claimed injury impacted160 million voters in the same way. The Complaint,viewed as whole, is a generalized grievance aboutthe operation of government, or about the actions ofthe Defendants on the operation of government,resulting in abstract harm to all registered voting Americans. It is not the kind of controversy that is justiciable in a federal court.
See Wood v.Raffensperger
, 981 F.3d 1307, 1314 (11th Cir. 2020)(claimed interest in ensuring that “only lawfulballots are counted” is a generalized grievance). As the Supreme Court of the United States hassaid in a case involving four Colorado voters whosought to challenge on federal constitutional groundsa Colorado Supreme Court decision relating toredistricting,We have consistently held that a plaintiffraising only a generally available grievanceabout government—claiming only harm tohis and every citizen’s interest in properapplication of the Constitution and laws, andseeking relief that no more directly andtangibly benefits him than it does the public
App. 20at large—does not state an Article III case orcontroversy.
Lance v. Coffman
, 549 U.S. 437, 439 (2007) (percuriam) (quoting
Lujan
, 504 U.S. at 573-74 (1992)).
See also Chiles v. Thornburgh
, 865 F.2d 1197, 1205– 06 (11th Cir. 1989) (explaining that an injury to theright “to require that the government beadministered according to the law” is a generalizedgrievance).The Supreme Court in
Lance
was specific that acase where voters allege only that the law (in thatcase the Elections Clause) has not been followed willnot support standing to sue:[T]he problem with this allegation should beobvious: The only injury plaintiffs allege isthat the law—specifically the ElectionsClause—has not been followed. This injury isprecisely the kind of undifferentiated,generalized grievance about the conduct ofgovernment that we have refused tocountenance in the past. It is quite differentfrom the sorts of injuries alleged by plaintiffsin voting rights cases where we have foundstanding.
See, e.g. Baker v. Carr
, 369 U.S.186, 207–208, 82 S. Ct. 691, 7 L. Ed. 2d 663(1962). Because plaintiffs assert noparticularized stake in the litigation, we holdthat they lack standing to bring theElections Clause claim.549 U.S. at 1198.
App. 21It should be no surprise to Plaintiffs or theircounsel that their generalized grievances about theirvotes being diluted or other votes being improperlycounted would be insufficient to grant them thestanding required under Article III of theConstitution. Numerous other cases challenging the2020 election and its surrounding circumstanceshave been dismissed for precisely this reason (amongmany other reasons).For example, on December 11, 2020, the UnitedStates Supreme Court denied the State of Texas’attempt to file a bill of complaint challenging theCommonwealth of Pennsylvania’s 2020 electionprocedures on the ground that “Texas has notdemonstrated a judicially cognizable interest in themanner in which another State conducts itselections.”
Texas v. Pennsylvania
, 141 S. Ct. 1230(2020).In
Wood v. Raffensperger
, the Eleventh Circuitheld that attorney Lin Wood lacked standing infederal court to enforce Georgia’s election laws, inpart because his claim that unlawfully processedabsentee ballots diluted the weight of his vote was ageneralized grievance “that cannot supportstanding.” 981 F.3d at 1314-15.In
Bognet v. Secretary Commonwealth of Pennsylvania
, where voters and a congressionalcandidate brought suit against the Secretary of theCommonwealth of Pennsylvania and county boardsof election seeking to enjoin the counting of mail-inballots during a three-day extension of the ballot-receipt deadline ordered by the PennsylvaniaSupreme Court, and also seeking a declaration thatthe extension period was unconstitutional, the Third
App. 22Circuit explained the doctrine of standing in clearterms:To bring suit, you—and you personally— must be injured, and you must be injured ina way that concretely impacts your ownprotected legal interests. If you arecomplaining about something that does notharm you—and does not harm you in a waythat is concrete—then you lack standing. And if the injury that you claim is an injurythat does no specific harm to you, or if itdepends on a harm that may never happen,then you lack an injury for which you mayseek relief from a federal court.980 F.3d 336, 348 (3d Cir. 2020),
cert. granted and judgment vacated with instructions to dismiss asmoot
, ___ S. Ct.___, 2021 WL 1520777 (April 19,2021). In
Bognet
, the court held that the plaintiffslacked standing to sue for alleged injuriesattributable to a state government’s violations of theElections Clause, in part because the relief “wouldhave no more directly benefitted them than thepublic at large.”
Id.
at 349.
3
In
Donald J. Trump for President, Inc. v. Boockvar
, No. 2:20-cv-966, 2020 WL 5997680 (W.D.Pa. Oct. 10, 2020), the Western District ofPennsylvania dismissed a legal challenge to electionguidance given by the Secretary of theCommonwealth of Pennsylvania regarding mannedsecurity near absentee drop boxes, performing of
3
While the judgment in this case was vacated by the SupremeCourt on mootness grounds, the reasoning on the issue ofstanding remains persuasive.
App. 23signature comparisons for mail-in ballots, and acounty-residency requirement for poll watchers. Theclaim had been that the plaintiffs would suffer aninjury through the non-equal treatment or dilutionof their legitimately cast votes by improperly verifiedabsentee or mail-in ballots. The court there foundthe plaintiffs lacked the “concrete” and“particularized” injury necessary for Article IIIstanding, agreeing that the “claimed injury of votedilution caused by possible voter fraud . . . toospeculative to be concrete.” 2020 WL 5997680, at*32.In
Donald J. Trump for President, Inc. v.Cegavske
, 488 F. Supp. 3d 993 (D. Nev. 2020), theDistrict of Nevada dismissed a lawsuit againstNevada’s Secretary of State that sought to challengea Nevada law that expanded mail-in voting due tothe COVID-19 pandemic. The law directed city andcounty election officials to mail paper ballots to allactive registered voters. Plaintiffs sued, claiming anindividual right under the Constitution to have avote fairly counted, “without being distorted byfraudulently cast votes”—i.e., vote dilution—and alsofor violations of the Equal Protection Clause. Thecourt dismissed the case for lack of standing, findingthe claimed injury “impermissibly generalized” and“speculative.” 488 F.Supp.3d at 1000. “As with other‘[g]enerally available grievance[s] about thegovernment,’ plaintiffs seek relief on behalf of theirmember voters that “no more directly and tangiblybenefits them than it does the public at large.”
Id
.(alteration omitted) (quoting
Lujan
, 504 U.S. at 573– 74).In
Bowyer v. Ducey
, No. CV-20-02321-PHX-DJH,2020 WL 7238261 (D. Ariz. Dec. 9, 2020), the
App. 24District of Arizona rejected a suit by Republicannominees for Arizona’s Presidential Electors andRepublican county chairs who sued Arizona’sgovernor and secretary of state seeking to set asideresults of the 2020 election on the basis of fraud andelection misconduct. Claims under both the ElectionsClause and the Equal Protection Clause based onvote dilution were deemed inadequate for lack of Article III standing: “Defendants contend thatPlaintiffs do not have standing to assert these claimsand point out that these allegations are nothingmore than generalized grievances that any one of the3.4 million Arizonans who voted could make if theywere so allowed. The Court agrees.” 2020 WL7238261, at *5.In
King v. Whitmer
, Civ. No. 20-13134, 2020 WL7134198 (E.D. Mich. December 7, 2020), the EasternDistrict of Michigan rejected a lawsuit bringingclaims of widespread voter irregularities and fraudin the processing and tabulation of votes andabsentee ballots in the 2020 general election. Theplaintiffs were registered Michigan voters andnominees of the Republican Party to be PresidentialElectors on behalf of the State of Michigan. Theysued Michigan Governor Whitmer and Secretary ofState Benson in their official capacities, as well asthe Michigan Board of State Canvassers. Applyingthe doctrine of standing, the court there found thatthe plaintiffs had failed to establish that the allegedinjury of vote dilution was redressable by a favorablecourt decision. 2020 WL 7134198, at *9. And withrespect to the claimed violations of the ElectionsClause and Electors Clause, the Court held thatwhere “the only injury Plaintiffs have alleged is theElections Clause has not been followed, the United
App. 25States Supreme Court has made clear that ‘[the]injury is precisely the kind of undifferentiated,generalized grievance about the conduct ofgovernment that [courts] have refused tocountenance.’”
Id
. at *10 (quoting
Lance
, 549 U.S. at442).In
Feehan v. Wisconsin Elections Commission
,No. 20-cv-1771-pp, 2020 WL 7250219 (E.D. Wis. Dec.9, 2020), a case involving a Wisconsin politicalparty’s nominee to be a Presidential Elector whobrought suit alleging the election was the subject ofwide-spread ballot fraud and violated the equalprotection and due process clause, the courtdismissed the suit for lack of standing because theclaimed injury was not particularized:The plaintiff’s alleged injuries are injuriesthat any Wisconsin voter suffers if theWisconsin election process were, as theplaintiff alleges, “so riddled with fraud,illegality, and statistical impossibility thatthis Court, and Wisconsin’s voters, courts,and legislators, cannot rely on, or certify, anynumbers resulting from this election.” [ ] Theplaintiff has not alleged that, as a voter, hehas suffered a particularized, concrete injurysufficient to confer standing.2020 WL 7250219, at *9 (internal citation omitted).Many of the allegations found in Plaintiffs’Complaint are identical to the allegations in the
Feehan
case.
See id
. at *2 (reciting the
Feehan
complaint as alleging “massive election fraud,multiple violations of the Wisconsin Election Code,see e.g., Wis. Stat. §§ 5.03, et seq., in addition to the
App. 26Election and Electors Clauses and Equal ProtectionClause of the U.S. Constitution” based on “dozens ofeyewitnesses and the statistical anomalies andmathematical impossibilities detailed in theaffidavits of expert witnesses”).In
Texas Voters Alliance v. Dallas County
, Civ.No. 4:20-CV-00775, 2020 WL 6146248 (E.D. Tex.Oct. 10, 2020), the Eastern District of Texas denied amotion for a temporary restraining order in a suitbrought by a Texas voting rights group and votersunder the Elections Clause, Supremacy Clause andHelp Americans Vote Act, which alleged (similar tothe allegations in this case) that by accepting orusing CTCL’s private federal election grants, Texascounties acted ultra vires. The court found theplaintiffs lacked standing to challenge the counties’acceptance of the CTCL grants because the injuryclaimed was an “undifferentiated, generalizedgrievance about the conduct of government” and“merely alleging that the grants may influence theelection result and lead to possibledisenfranchisement is not an injury-in-fact.” 2020WL 6146248, at *4.In
Iowa Voter Alliance v. Black Hawk County
,C20-2078-LTS, 2021 WL 276700 (N.D. Iowa January27, 2021), the Northern District of Iowa dismissed alawsuit brought by voters and a voter group, whichalso sought to challenge Iowa counties’ acceptance ofCTCL grants which were intended to assist with theunforeseen costs of conducting an election during theCOVID-19 pandemic. The court foundnone of plaintiffs alleged injuries constitutesan injury in fact, as they have failed to allegefacts showing that the counties’ actions
App. 27resulted in a concrete and particularizedinjury to their right to vote or to their rightsunder the Fourteenth and Ninth Amendments. Instead, they have done nomore than assert generalized grievancesagainst government conduct or which they donot approve.2021 WL 276700, at *7 (internal quotation marks,citations, and alterations omitted).In sum, federal courts addressing these issues,whether in the 2020 or other elections, are nearlyuniform in finding the types of election-relatedharms of which the Plaintiffs complain insufficientto confer standing. The Middle District of NorthCarolina recently summarized some of these vote-dilution “generalized grievance” decisions:Indeed, lower courts which have addressedstanding in vote dilution cases arising out ofthe possibility of unlawful or invalid ballotsbeing counted, as Plaintiffs have arguedhere, have said that this harm is undulyspeculative and impermissibly generalizedbecause all voters in a state are affected,rather than a small group of voters.
See, e.g., Donald Trump for President, Inc. v.Cegavske
, Case No. 2:20-CV-1445 JCM(VCF), ––– F. Supp. 3d ––––, ––––, 2020 WL5626974, at *4 (D. Nev. Sept. 18, 2020) (“Aswith other generally available grievancesabout the government, plaintiffs seek reliefon behalf of their member voters that nomore tangibly benefits them than it does the
App. 28public at large.”) (internal quotations andmodifications omitted);
Martel v. Condos
,Case No. 5:20-cv-131, ––– F. Supp. 3d ––––, ––––, 2020 WL 5755289, at *4 (D. Vt. Sept.16, 2020) (“If every voter suffers the sameincremental dilution of the franchise causedby some third-party’s fraudulent vote, thenthese voters have experienced a generalizedinjury.”);
Paher v. Cegavske
, 457 F. Supp. 3d919, 926-27 (D. Nev. 2020) (“Plaintiffs’purported injury of having their votesdiluted due to ostensible election fraud maybe conceivably raised by any Nevada voter.”);
Am. Civil Rights Union v. Martinez-Rivera
,166 F. Supp. 3d 779, 789 (W.D. Tex. 2015)(“[T]he risk of vote dilution [is] speculativeand, as such, [is] more akin to a generalizedgrievance about the government than aninjury in fact.”) Although “[i]t would over-simplify thestanding analysis to conclude that no state-wide election law is subject to challengesimply because it affects all voters,”
Martel
, ––– F. Supp. 3d at ––––, 2020 WL 5755289,at *4, the notion that a single person’s votewill be less valuable as a result of unlawfulor invalid ballots being cast is not a concreteand particularized injury necessary for Article III standing. Compared to a claim ofgerrymandering, in which the injury isspecific to a group of voters based on theirracial identity or the district in which theylive, all voters in North Carolina, not justIndividual Plaintiffs, would suffer the injuryIndividual Plaintiffs allege. This court finds
App. 29this injury to generalized to give rise to aclaim of vote dilution . . ..
Moore v. Circosta
, Nos. 1:20CV911, 1:20CV912, 2020WL 6063332, at *14 (M.D.N.C. Oct. 14, 2020).In contrast to the veritable tsunami of decisionsfinding no Article III standing in near identical casesto the instant suit, Plaintiffs’ arguments inopposition to Defendants’ Motions to Dismiss arecursory and neither cite nor distinguish any of thecases that have found a lack of standing among voterplaintiffs making challenges to the 2020 election.
See
Dkt. #64 at 10–11 (Plaintiffs’ Opposition to CTCL’sMotion to Dismiss citing cases from 1982, 1915,1983, 1978, and 1976 and not discussing any of themany standing cases cited in CTLC’s movingpapers); Dkt. #40 at 21–22 (Plaintiffs’ Opposition toFacebook’s Motion to Dismiss making the samesuperficial arguments and citing the same cases);Dkt. #39 at 17–19 (Plaintiffs’ Opposition toDominion’s Motion to Dismiss failing to cite ordistinguish any of the other standing casesdismissing claims disputing the 2020 election). Andin opposing the Motions to Dismiss, Plaintiffsparadoxically make arguments that implicitlyconcede the generalized, rather than particularized,nature of the injuries about which they complain.For example, in responding to Dominion’s Motion toDismiss, Plaintiffs attempt to explain their claimedindividualized injury as follows:The Plaintiffs alleged that their individualrights to vote in a Presidential election, andto be treated equally and fairly, have been
App. 30burdened by the conduct of Dominion. [. . . ]Even for those voters in State’s [sic] that donot utilize Dominion, their shared right tovote for the President and Vice Presidentwas burdened by this Colorado corporation.Dkt. #39 at 20. In trying to explain how this injury isparticularized to the individual plaintiffs and not allmembers of the public, Plaintiffs purport to clarifythat it is only registered voters—all 160 million ofthem—who “have had their rights infringed –andthis [have] the standing to bring suit.”
Id
. Butreducing the number of allegedly harmed Plaintiffsfrom 300 million total Americans to only 160 millionregistered voters does not make the harmcomplained of any less generalized nor any moreparticularized. As the cases cited above make clear,a claim that “all voters” are affected the same way isno more particularized than a claim that the“general public” is so affected.In opposing the motions to dismiss, Plaintiffs’only tangentially relevant citation is to a dissentingopinion by Justice Thomas in a denial of certiorari.
See
Dkt. #39 at 21 (citing Justice Thomas’s dissentin
Republican Party of Pennsylvania v. Degraffenreid
, 141 S. Ct. 732 (2021) (denyingpetitions for writ of certiorari)). It should go withoutsaying that denials of certiorari are not bindingauthority.
See House v. Mayo
, 324 U.S. 42, 48 (1945)(“[A] denial of certiorari by this Court imports noexpression of opinion upon the merits of a case.”). And dissenting opinions are, by definition, not thelaw. But even Justice Thomas’s dissent to the denialof certiorari said nothing about the standing ofregistered voters to challenge a state’s use of specific
App. 31election technology, or standing to challenge a socialnetwork’s editorial policies because of the impact itmight have on the electorate at large, or standing todispute a non-profit’s donations to municipalities forelection-related purposes.Plaintiffs fare no better on the standing issue intheir brief opposing Facebook’s Motion to Dismiss.
See
Dkt. #40. The alleged complaint againstFacebook is that the company, its founderZuckerberg, and the non-profit CTCL, formed an“obvious conspiracy” working “with localgovernments to place ballot drop boxes primarily inurban areas, which has the purpose and effect ofavoiding or intercepting the U.S. Mail.”
Id.
at 2. According to Plaintiffs, this was part of asecret conspiracy among a “cabal” formed byan “informal alliance between left-wingactivists and business titans,” to “fortify” theelection through new voting machines, newelection laws, hundreds of millions in cash,new poll workers, millions of new mail-inballots, social media censorship, propaganda,media manipulation, and lawsuitsuppression through the useof threats,intimidation and strategic lawsuits againstpublic participation, which takes credit forimpacting the outcome of the election.
Id.
at 3. In attempting to describe the supposedlyindividualized nature of the injury suffered byPlaintiffs at the hands of Facebook to justifystanding their standing to sue, Plaintiffs refute theirown argument:
App. 32Here,
every registered voter
was deprived of afair and legitimate process administered bythe relevant state actors. Further, the lack oflegitimacy not only devalues and dilutes thevotes that were cast, but also reinforces thenotion that individual votes do not matter,thereby diminishing the perceived presentvalue of the right to vote in future electionsand suppressing subsequent voter turnout.
Registered voters
have been subjected totumult, mental anguish and division formonths. These injuries are bipartisan, andhave been suffered by
all registered voters
regardless of whom their vote was cast. Although some registered voters may becontent that the candidate of their choicewas certified as the winner, questionableelection integrity
impacts all registeredvoters
.
Id.
at 22–23 (emphasis added). This is almost thehornbook definition of a generalized grievance thatbroadly affects all of a state’s voters in the sameway. It is lethal to Plaintiffs’ claim to have standingto sue.
See Moore,
2020 WL 6063332, at *14 (“Thisharm is unduly speculative and impermissiblygeneralized because all voters in a state are affected,rather than a small group of voters.”);
Bowyer
, 2020WL 7238261, at *5 (“[T]hese allegations are nothingmore than generalized grievances that any one of the3.4 million Arizonans who voted could make if theywere so allowed.”);
King
, 2020 WL 7134198, at *10(‘[T]he injury is precisely the kind ofundifferentiated, generalized grievance about theconduct of government that courts have refused to
App. 33countenance.’”) (alterations omitted) (quoting
Lance
,549 U.S. at 442). At oral argument on April 27, 2021, Plaintiffs’counsel tried to say that the numerous other similarcases denying standing were different because thosecases involved suits against state actors or stateagencies, and here Plaintiffs are suing corporations(and a non-profit). This argument ignores that, untilthey were dismissed, Plaintiffs had sued a number ofstate governors and secretaries of state. Moreimportant, no case makes the distinction thatPlaintiffs try to make. Standing, or at least theinjury-in-fact element of standing, arises from aplaintiff’s claimed injury, not the particulardefendant it is seeking to sue, or in what capacity.Here, Plaintiffs’ claimed injuries are general,unparticularized, and shared with every otherregistered voter in America.Without Plaintiffs having standing to sue, thereis no case or controversy for the Court to address.The complaint therefore will be dismissed for lack offederal jurisdiction.
Amendment of the Complaint
The Federal Rules of Civil Procedure grantamendment as of right where the amendment ismade within 21 days after service of a motion underRule 12(b). Fed. R. Civ. P. 15(a)(1)(B). After thisperiod, amendment may only be granted with thecourt’s leave. The grant or denial of an opportunityto amend is within the discretion of the court.
Foman v. Davis
, 371 U.S. 178, 182 (1962). “The courtshould freely grant leave when justice so requires.”Fed. R. Civ. P. 15(a)(2). In civil-rights cases, that
App. 34means granting leave unless “amendment would befutile or inequitable.”
Vorchheimer v. Phila. Owners Ass’n
, 903 F.3d 100, 113 (3d Cir. 2018).The Supreme Court has approved denial of leaveto amend when any amendment would be futile.
Foman
, 371 U.S. at 182. “A proposed amendment isfutile if the complaint, as amended, would be subjectto dismissal.”
Anderson v. Suiters
, 499 F.3d 1228,1238 (10th Cir. 2007).
See also Midcities Metro. Dist.No. 1 v. U.S. Bank Nat’l. Ass’n.
, 44 F. Supp. 3d 1062,1068 (D. Colo. 2014) (denying leave to amend wherePlaintiff had no standing). The factual allegations ina proposed amended complaint “must be enough toraise a right to relief above the speculative level.”
Christy Sports, LLC v. Deer Valley Resort Co.
, 555F.3d 1188, 1191 (10th Cir. 2009).The proposed Amended Complaint adds 152individual plaintiffs and grows in length to 882paragraphs and 115 pages.
See
Dkt. #48-1. Thenewly added Plaintiffs are registered voters are fromthirty-three different states, spanning from Alabama, Alaska, and Arizona, to West Virginia,Wisconsin, and Wyoming. In connection with the Amended Complaint, Plaintiffs’ counsel hassubmitted an affidavit (Dkt. #48-3) describing howhe and his staff have fielded hundreds of phone callsand e-mails while coordinating with individualsseeking to join this suit. According to Plaintiffs’counsel, “Every individual who has made contact hasuniversally believed that they had been damagedand expressed a deep sense of loss of trust andconfidence in the electoral process, specificallycaused by the actions of the named Defendants.”
Id.
at 2, ¶ 6. At oral argument, Plaintiffs’ counselexplained that he has collected more than 400
App. 35additional affidavits describing the mental anguishand suffering these new prospective Plaintiffs havegone through as a result of the disputed election. Heproposed to file those affidavits with the Court. (Heshould not file them.)In addition to the existing claims for violation ofthe Electors Clause, Equal Protection Clause, DueProcess Clause, undue burden on the rights toassociate and freedom of the press, and theconstitutional challenge to 47 U.S.C. § 230(c), theproposed Amended Complaint seeks to add claimsfor (1) violation of 18 U.S.C. § 1962(c)—enterpriseracketeering against Facebook, CTCL, Zuckerbergand Chan; (2) racketeering conspiracy against thesame defendants; and (3) constitutional challenges toMichigan State Law (M.C.L. 168.759(3)); GeorgiaState law (O.C.G.A. 21-2-386 et seq.); Pennsylvaniastate law (Act 77); and Wisconsin state laws (Wis.Stat. 6.855(3) and 7.15(2m)).
4
The AmendedComplaint continues to seek a declaratory judgmentthat each of the Defendants “acted in contraventionto the limitations imposed by the Constitution andthe laws relate to a federal Presidential election tothe injury of Plaintiffs.” Dkt. #48-1 at 113, ¶ 878.Plaintiffs also continue to seek “permanentinjunctive relief against the Defendants to enjointhem from continuing to burden the rights of thePlaintiffs and all similarly situated registeredvoters.”
Id
. at 114, ¶ 881.In terms of the factual additions found in the Amended Complaint, Plaintiffs add numerousadditional paragraphs. Many of those paragraphs
4
Although at oral argument, Plaintiffs’ counsel made clear thatPlaintiffs’ are withdrawing their claims purporting to challengethe various state election laws or provisions.
App. 36use the language of the RICO statute to paint apicture of the Defendants as co-conspirators in agrand national-level effort to corrupt thePresidential election of 2020.
See
Dkt. 48-1 at 5–7, ¶13 (“The 2020 Presidential election wasunconstitutionally influenced by a well-funded cabalof powerful people . . .”); ¶ 14 (“This well-fundedgroup of persons, associated in fact . . .”); & ¶¶ 15–28(describing the actions of the alleged “enterprise,”including coordinating with non-profit organizationsand local municipalities to make changes to votingprocedures).The new paragraphs also add details aboutalleged problems with Dominion’s electronic votingsystems and software.
See id.
at 8, ¶ 42 (“Dominion’svoting machines, tabulators, poll books, automateddata, and other products and services were and aredefective, and not deployed in a workmanlikemanner sufficient to ensure the validity of theelection results.”); & ¶ 44 (“Dominion’s software andother products are susceptible to hacking, bugs,malware and configuration errors.”). And, in support of the class action allegations,the proposed Amended Complaint lists a series ofsupposed “common questions” that could bedetermined on a class-wide basis, including, amongothers:Whether Defendants engaged in ascheme and enterprise to improperlyinterfere with the 2020 Presidential election,by the use of devices and methods thataffected or diluted the Plaintiffs’ right to votein a free and fair Presidential election;
App. 37Whether Defendants used the US Mail tofurther their scheme and enterprise andimproperly interfere with the 2020Presidential election;Whether Defendants engaged in aconspiracy against the rights and liberties ofregistered voters by employing their schemeand enterprise aimed at the electionmachinery; [and]Whether Defendants engaged in aconspiracy against the rights and liberties ofregistered voters by engaging in censorshipof political and dissenting speech.”
Id.
at 32, ¶ 253(a), (b), (d), & (e). But the AmendedComplaint adds nothing meaningful or different tothe injuries claimed by the Plaintiffs.Just as in the original Complaint, all thesupposed injuries relate to Plaintiffs’ votes and thealleged dilution thereof.
See
,
e.g.
,
id.
at 85, ¶¶ 676– 79 (“The evidence establishes that the enterprise hasengaged in a scheme to dilute the votes of some, andcount illegal ballots to the benefit of another. Thishurts every registered voter in the countryirrespective of voter affiliation. Other than thenefarious, the honest American voter wants everyvote counted to legally determine the President and Vice President.”).Under normal circumstances and in a normalcase, where a plaintiff seeks to amend the complaintfor the first time relatively soon after the start of thelitigation, even after responding substantively to amotion to dismiss, it is near automatic for leave toamend to be granted. The exception is where, giventhe nature of the claims, no amendment can salvage
App. 38a fatally flawed suit and it is everyone’s interest thatthe litigation be ended. This is such a fatally flawedcase.On the critical question of standing, the proposed Amended Complaint fares no better than theoriginal. Plaintiffs’ claim to standing is that thesenew 152 Plaintiffs, and the class and subclasses thatthe Amended Complaint hopes to certify, all have“standing to vindicate the [sic] rights as registeredvoters in a federal Presidential Election.” Dkt. #48 at4. Plaintiffs insist that “it would improper for afederal court to deny registered voters . . . standingto vindicate their rights, protected under theConstitution.”
Id
. Plaintiffs maintain that “each ofthem” has “a right to seek adjudication of federalquestions of singular effect over Defendants.”
Id.
But Plaintiffs misunderstand the nature of thestanding inquiry. Standing is not something that isgranted or denied by a court. A plaintiff has standingto sue because of the nature of the injury she hassuffered and the circumstances which caused thatinjury. If a plaintiff has suffered an identifiable,distinct, and particularized injury, redressable bycourt action, then standing exists. Here, by theirown admission, Plaintiffs’ claimed injuries are nodifferent than the supposed injuries experienced byall registered voters. This is a generalized injurythat does not support the standing required for agenuine case or controversy under Article III of theConstitution.In their replies in support of the Motion forLeave to Amend, Plaintiffs cite the recent SupremeCourt case of
Uzuegbunam v. Preczewski
, 141 S. Ct.792 (2021). In
Uzuegbunam
, former students at astate college had wished to exercise their religion by
App. 39sharing their faith on campus. The studentsobtained a required permit and were distributingreligious materials in a designated “free speechzone” when a campus police office asked the studentsto stop. Campus policy at the time prohibited usingthe free speech zone to say anything that “disturbsthe peace and/or comfort of persons.” The plaintiffssued, arguing the policies violated the First Amendment. The college then changed thechallenged policies rather than defend them, andargued that the case should be dismissed on theground that the policy change rendered the requestfor injunctive relief moot, arguably leaving thestudents without standing to sue for lack of aredressable case or controversy. But the studentshad sought nominal damages in addition toinjunctive relief. The question for the Supreme Courtwas whether a plea for nominal damages for analready completed constitutional injury could byitself establish the redressability element ofstanding.The Court held that a request for nominaldamages alone does satisfy the redressabilityelement necessary for Article III standing where aplaintiff’s claim is based on a completed violation ofa legal right and the plaintiff establishes the firsttwo elements of standing—injury and traceability.141 S. Ct. at 801–02. But the
Uzuegbunam
decisionis clear that a plea for nominal damages onlysatisfies the
redressability
element of standing, notthe requirement for pleading particularized injury:“This is not to say that a request for nominaldamages guarantees entry to court. Our holdingconcerns only redressability. It remains for theplaintiff to establish the other elements of standing
App. 40(such as particularized injury).”
Id
. at 802. In
Uzuegbunam,
there was no debate that the plaintiffhad suffered particularized injury—he had tried toexercise his right to free speech and religion andbeen stopped by the campus police from doing so.In this case, by contrast, whether in the originalComplaint or the proposed Amended Complaint,Plaintiffs allege no particularized injury traceable tothe conduct of Defendants, other than their generalinterest in seeing elections conducted fairly and theirvotes fairly counted. As outlined in the section above,when the alleged injury is undifferentiated andcommon to all members of the public or a largegroup, courts routinely dismiss such cases as“generalized grievances” that cannot supportstanding.
United States v. Richardson
, 418 U.S. 166,173–75 (1974). And the injuries complained of in thiscase are general grievances shared by all registeredvoters that do not give standing to sue. Asked at oral argument to direct the Court to the“best case” supporting Plaintiffs’ position that theyhave standing to sue, Plaintiffs’ counsel mentioned
Anderson v. Celebreze
, 460 U.S. 780 (1983).
Anderson
involved a suit by independent Presidentialcandidate John Anderson who challenged the Stateof Ohio’s arguably discriminatory requirements forindependent Presidential candidates who sought aplace on the Ohio ballot. Ohio required anindependent candidate to submit requireddocuments, filing fees, and the requisite signaturesmany months in advance of the election (by March20 for the November election), while political partynominees were automatically granted a place aballot. While Anderson submitted all the necessarypaperwork and obtained the requisite number of
App. 41signatures, he did so after the early filing deadlinehad passed, and Ohio’s Secretary of State refused toaccept Anderson’s nominating petition. Three dayslater, Anderson himself and three voters sued in theSouthern District of Ohio challenging theconstitutionality of Ohio’s early filing deadline forindependent candidates. 460 U.S. at 782–83. Whilethe
Anderson
opinion talks a great deal about theright to vote being “fundamental,” i
d
. at 788, thecase says nothing about standing. Anderson, as acandidate being denied a spot on the ballot,obviously had a particularized injury that grantedhim standing. The Anderson supporters too had aparticularized injury: the candidate they sought tovote for was being denied a spot on the ballot. Theirright to vote for the Presidential candidate of theirchoice was being denied. Even the dissent, whichdisagreed that Ohio’s early registrationrequirements were unconstitutional, conceded theparticularized nature of Anderson’s and hissupporters’ injuries: “Anderson and his supporterswould have been injured by Ohio's ballot accessrequirements; by failing to comply with the filingdeadline for nonparty candidates Anderson wouldhave been excluded from Ohio's 1980 generalelection ballot.”
Id
. at 808 (Rehnquist, J.,dissenting). Thus, even Plaintiffs’ purported “bestcase” to justify standing provides no support at all.Therefore, I find that any amendment of thisComplaint which seeks to bring suit on behalf of allregistered voters in the United States for allegedillegality in the conduct of the 2020 election andassociated vote dilution is futile because Plaintiffscannot allege particularized injury sufficient toestablish Article III standing. Leave to amend will
App. 42be denied.
Brereton v. Bountiful City Corp.
, 434 F.3d1213, 1219 (10th Cir. 2006) (explaining that districtcourt may dismiss without granting leave to amendwhen amendment would be futile, and affirmingdismissal without leave to amend for lack ofstanding, but noting such dismissal should bewithout prejudice);
Hutchinson v. Pfeil
, 211 F.3d515, 523 (10th Cir. 2000) (affirming dismissal forlack of standing and approving denial of amendmentof pleading on grounds of futility because proposedamendment would not cure the standing deficiency);
Grossman v. Novell, Inc.
, 120 F.3d 1112, 1126 (10thCir. 1997) (affirming denial of leave to amend ongrounds of futility and failure to show how anyamendment would cure identified deficiencies).
Seealso Donald J. Trump for President
, 830 F. App’x at389 (affirming denial of leave to amend suitchallenging 2020 election on grounds of futilitybecause the proposed Second Amended Complaintwould not survive a motion to dismiss). At oral argument, counsel for CTCL pointed outthat although Plaintiffs filed an opposition toDominion and Facebook’s Motions to Dismiss andtherefore forfeited their ability to amend theComplaint as a matter of right, the timing wasdifferent for CTCL’s Motion to Dismiss. It isapparently not clear under Tenth Circuit caselawwhether Plaintiffs can still amend as a matter ofright. CTCL’s proposed solution to avoid anyprocedural confusion is to allow the amendment andthen dismiss the Amended Complaint for lack ofstanding. As they say, “six of one and half dozen ofthe other.” I deny the amendment on the grounds offutility. A proposed amendment is futile if it wouldnot survive a motion to dismiss. To be clear, if the
App. 43amendment were allowed, the proposed AmendedComplaint would nevertheless be subject todismissal for lack of standing. Nothing in theproposed Amended Complaint changes the standinganalysis.Because the Court lacks jurisdiction to hearPlaintiffs’ suit, it will not address the many otherbases for dismissal raised in Defendants’ motions.
Conclusion
It is hereby
ORDERED
that the Motions toDismiss of Defendants Dominion, Facebook, andCTCL (Dkt. ##22, 23, & 41) are
GRANTED.
It isfurther
ORDERED
that Plaintiffs’ Complaint (Dkt. #1) is
DISMISSED WITHOUT PREJUDICE
forlack of standing.
See Brereton
, 434 F.3d at 1219(dismissal for lack of standing should be withoutprejudice).Because Plaintiffs have voluntarily dismissedthe claims against the various state officials ofGeorgia, Michigan, Pennsylvania, and Wisconsin(Brian Kemp, Brad Raffensperger, GretchenWhitmer, Jocelyn Benson, Tom Wolf, KathyBoockvar, Tony Evers, Ann S. Jacobs, MarkThomsen, Marge Bostelman, Julie E. Glancey, DeanKnudson, and Robert F. Spindell, Jr.), it is further
ORDERED
that the Motions to Dismiss filed bythose state official defendants (Dkt. ##46, 47, & 49)are
DENIED
as moot.
App. 44It is further
ORDERED
that Plaintiffs’ Motionfor Leave to File an Amended Complaint (Dkt. #48)is
DENIED
on the grounds of futility.Dated: April 28, 2021Denver, Colorado/s/ N. Reid. NeureiterUnited States Magistrate Judge
App. 45
FILED June 27, 2022Christopher M. WolpertClerk of Court
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
No. 21-1161(D.C. No. 1:20-CV-03747-NRN)(D. Colo.)KEVIN O'ROURKE, et al.,Plaintiffs - Appellants,v.DOMINION VOTING SYSTEMS, INC.,a Delaware corporation, et al.,Defendants – Appellees
ORDER
Before
TYMKOVICH
, Chief Judge,
HOLMES
, and
ROSSMAN
, Circuit Judges. Appellants’ petition for rehearing is denied.The petition for rehearing en banc wastransmitted to all of the judges of the court who arein regular active service. As no member of the paneland no judge in regular active service on the courtrequested that the court be polled, that petition isalso denied.Entered for the Court/s/ CHRISTOPHER M. WOLPERT, Clerk
App. 46
42 U.S. Code § 1983 - Civil action fordeprivation of rights
Every person who, under color of any statute,ordinance, regulation, custom, or usage, of any Stateor Territory or the District of Columbia, subjects, orcauses to be subjected, any citizen of the UnitedStates or other person within the jurisdiction thereofto the deprivation of any rights, privileges, orimmunities secured by the Constitution and laws,shall be liable to the party injured in an action atlaw, suit in equity, or other proper proceeding forredress, except that in any action brought against a judicial officer for an act or omission taken in suchofficer’s judicial capacity, injunctive relief shall notbe granted unless a declaratory decree was violatedor declaratory relief was unavailable. For thepurposes of this section, any Act of Congressapplicable exclusively to the District of Columbiashall be considered to be a statute of the District ofColumbia.
42 U.S. Code § 1988 - Proceedings invindication of civil rights
(a) Applicability of statutory and common lawThe jurisdiction in civil and criminal mattersconferred on the district courts by the provisions oftitles 13, 24, and 70 of the Revised Statutes for theprotection of all persons in the United States in theircivil rights, and for their vindication, shall beexercised and enforced in conformity with the laws ofthe United States, so far as such laws are suitable tocarry the same into effect; but in all cases where
App. 47they are not adapted to the object, or are deficient inthe provisions necessary to furnish suitable remediesand punish offenses against law, the common law, asmodified and changed by the constitution andstatutes of the State wherein the court having jurisdiction of such civil or criminal cause is held, sofar as the same is not inconsistent with theConstitution and laws of the United States, shall beextended to and govern the said courts in the trialand disposition of the cause, and, if it is of a criminalnature, in the infliction of punishment on the partyfound guilty.(b) Attorney’s feesIn any action or proceeding to enforce a provision ofsections 1981, 1981a, 1982, 1983, 1985, and 1986 ofthis title, title IX of Public Law 92–318 [20 U.S.C.1681 et seq.], the Religious Freedom Restoration Actof 1993 [42 U.S.C. 2000bb et seq.], the ReligiousLand Use and Institutionalized Persons Act of 2000[42 U.S.C. 2000cc et seq.], title VI of the Civil Rights Act of 1964 [42 U.S.C. 2000d et seq.], or section12361 of title 34, the court, in its discretion, mayallow the prevailing party, other than the UnitedStates, a reasonable attorney’s fee as part of thecosts, except that in any action brought against a judicial officer for an act or omission taken in suchofficer’s judicial capacity such officer shall not beheld liable for any costs, including attorney’s fees,unless such action was clearly in excess of suchofficer’s jurisdiction.(c) Expert fees
App. 48In awarding an attorney’s fee under subsection (b) inany action or proceeding to enforce a provision ofsection 1981 or 1981a of this title, the court, in itsdiscretion, may include expert fees as part of theattorney’s fee.
Federal Rule of Evidence 15 Amended andSupplemental Pleadings
(a) Amendments Before Trial.(1) Amending as a Matter of Course. A party mayamend its pleading once as a matter of coursewithin:(A) 21 days after serving it, or(B) if the pleading is one to which a responsivepleading is required, 21 days after service of aresponsive pleading or 21 days after service of amotion under Rule 12(b), (e), or (f), whichever isearlier.(2) Other Amendments. In all other cases, a partymay amend its pleading only with the opposingparty's written consent or the court's leave. Thecourt should freely give leave when justice sorequires.(3) Time to Respond. Unless the court ordersotherwise, any required response to an amendedpleading must be made within the time remaining torespond to the original pleading or within 14 daysafter service of the amended pleading, whichever islater.
In the Petition of Writ (below) to the Supreme Court the petitioners note the following:
The rights of citizens, individually and as a class, to file a complaint against giant private persons who violate the rights of millions has been stripped by the decision of the 10th Circuit. Thus, this case is of great national importance.
This case is still alive. Help support this group as it may be our last chance.
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