The opinion of the court was delivered by: Stephen J. Murphy, III United States District Judge
HONORABLE STEPHEN J. MURPHY, III
OPINION AND ORDER DENYING DEFENDANTS' MOTION TO DISMISS (docket no. 60), GRANTING PLAINTIFFS' MOTION TO AMEND THE SCHEDULING ORDER (docket no. 65)
On October 13, 2008, this Court granted, in part, Plaintiffs' request for a preliminary injunction. Pursuant to that order, Michigan's Secretary of State and Director of Elections were required to restore to the State's Qualified Voter File ("QVF") certain voters whose voting status in QVF was marked "rejected" after their voter identifications cards were returned as undeliverable, and to discontinue this marking practice going forward. The Court devoted a significant portion of its order to Plaintiffs' standing to challenge the State's practices, an issue raised by the parties in their briefing. Defendants now move to dismiss Plaintiffs' entire complaint for lack of standing. Although the Court and the Sixth Circuit have addressed Plaintiffs' standing in this case on three separate occasions, they have never done so in the context of a motion to dismiss. Also pending before the Court is Plaintiffs' motion for an enlargement of time to complete discovery and modification of the scheduling order, which Defendants oppose.
For the reasons stated below, the Court will deny Defendants' motion to dismiss for lack of standing, without prejudice to raising the issue at the close of discovery. Although the Court seriously questions Plaintiffs' ability to prove their allegations of standing, the Court believes it unfair to hold Plaintiffs to a burden in that regard before the close of discovery. Also, because Plaintiffs have demonstrated good cause, the Court will grant Plaintiffs' motion for an extension of discovery and modification of the scheduling order. No more requests, however, to modify the scheduling order will be granted.
The facts in this case are straight-forward and were set forth in the Court's lengthy opinion and order granting, in part, Plaintiffs' motion for a preliminary injunction. Order of October 13, 2008, at 2-5. The Court will not again describe in detail Defendants' voter registration and deregistration practices and the challenges by Plaintiffs thereto. Additional factual background, as necessary, is discussed below.
A. Federal Rule of Civil Procedure 12(b)(1)
Defendants move to dismiss the claims in the complaint pursuant to Fed. R. Civ. P. 12(b)(1) (lack of subject matter jurisdiction). Subject matter jurisdiction may be raised by the parties or the Court at any stage in the litigation, even after trial and the entry of judgment. Arbaugh v. Y & H Corp., 546 U.S. 500, 506 (2006). Indeed, Rule 12(h)(3) of the Federal Rules of Civil Procedure instructs: "If 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).
"A Rule 12(b)(1) motion can either attack the claim of jurisdiction on its face, in which case all allegations of the plaintiff must be considered as true, or it can attack the factual basis for jurisdiction, in which case the trial court must weigh the evidence and the plaintiff bears the burden of proving that jurisdiction exists." DLX, Inc. v. Kentucky, 381 F.3d 511, 516 (6th Cir. 2004). In a factual attack, no presumptive truthfulness applies to the factual allegations and the court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case. United States v. Ritchie, 15 F.3d 592, 598 (6th Cir. 1994). A district court has wide discretion to allow affidavits, documents, and even conduct an evidentiary hearing to resolve disputed jurisdictional facts. Ohio Nat'l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir. 1990). Defendants here mount a factual attack.
A federal district court's subject matter jurisdiction is limited by Article III of the U.S. Constitution to actual "Cases" or "Controversies." U.S. Const. art III, § 2. Indeed, " '[n]o principle is more fundamental to the judiciary's proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies.' " DiamlerChrysler Corp. v. Cuno, 547 U.S. 332, 341 (2006) (quoting Raines v. Byrd, 521 U.S. 811, 818 (1997)). One element of the case or controversy requirement is that the plaintiff establish it has standing to sue. Raines, 521 U.S. at 818. If a plaintiff cannot establish its standing, the claims must be dismissed for lack of subject matter jurisdiction. Loren v. Blue Cross & Blue Shield, 505 F.3d 598, 607 (6th Cir. 2007).
"To satisfy Article III's standing requirements, a plaintiff must show : '(1) it has suffered an "injury in fact" that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.'" Cleveland Branch NAACP v. City of Parma, 263 F.3d 513, 523-24 (6th Cir. 2001) (quoting Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167, 180-81 (2000)).
Article III's standing requirements apply to associations or groups as well as to natural persons. An association may have standing to sue in two ways. First, "an association may have standing in its own right to seek judicial relief from injury to itself and to vindicate whatever rights and immunities the association itself may enjoy." Am Canoe Ass'n, Inc. v. City of Louisa Water & Sewer Comm'n, 389 F.3d 536, 544 (6th Cir. 2004) (quoting Warth v. Seldin, 422 U.S. 490, 511 (1975)). That is, an association may have standing to assert an injury to itself regardless of whether its members also have standing. Id. Second, an association may have standing to sue as a representative of its members. Id. at 541. Representative standing is satisfied when an association's "'members would otherwise have standing to sue in their own right, the interests at stake are germane to the organization's purpose, and neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.'" Id. at 540 (quoting Friends of the Earth, 528 U.S. at 181).
II. Defendants' Instant Challenges to Plaintiffs' Standing
In their instant motion to dismiss, Defendants again challenge Plaintiffs' standing to sue to remedy Defendants' alleged violations of the National Voter Registration Act ("NVRA"). Defendants make three arguments for why the Court should dismiss the claims for lack of standing. First, they argue that two of the four plaintiffs, United States Student Association Foundation ("USSAF") and ACLU Fund of Michigan ("ACLU Fund"), lack standing in a representative capacity because neither association consists of members who vote and face potential disenfranchisement by Michigan's voting registration and deregistration procedures. Second, they argue that the other two plaintiffs, ACLU of Michigan ("ACLU") and Michigan Conference of NAACP Branches ...