United States District Court, E.D. Michigan, Northern Division
ROBERT W. MCKAY, Plaintiff,
WILLIAM L. FEDERSPIEL, and RANDY F. PFAU, Defendants.
ORDER DENYING DEFENDANTS' MOTION FOR RECONSIDERATION
THOMAS L. LUDINGTON, District Judge.
On January 20, 2014, Plaintiff Robert McKay filed suit against Saginaw County Sheriff William Federspiel and Lieutenant Sheriff Randy Pfau, challenging the constitutionality of an administrative order issued by the Saginaw County Circuit Court. The administrative order (the "Electronics Ban Order") prohibits members of the public from possessing and using cell phones, cameras, and other electronic communication devices in certain areas of the Saginaw County Governmental Center. McKay alleges that the Electronics Ban Order violates the First, Fifth, and Fourteenth Amendments of the United States Constitution that protect his right "to attend, observe, and record matters of public concern" within the Saginaw County Governmental Center. Compl. ¶ 1, ECF No. 1 (emphasis original).
The parties filed cross-motions for summary judgment on McKay's First Amendment claims. On December 11, 2014, this Court granted Defendants' motion for summary judgment, concluding that "the Electronics Ban Order does not infringe on McKay's First Amendment rights...." Order 2, ECF No. 52. However, the Court noted that neither party moved for summary judgment on McKay's Fifth and Fourteenth Amendment claims, and therefore those claims remain pending.
On December 23, 2014, Defendants filed a motion for reconsideration of this Court's December 11, 2014 Order. Defendants contend that: (1) the Court erred in dismissing McKay's First Amendment claim without prejudice, and (2) that summary judgment should have been granted on McKay's Fifth and Fourteenth Amendment claims.
A motion for reconsideration will be granted if the moving party shows: "(1) a palpable defect, (2) the defect misled the court and the parties, and (3) that correcting the defect will result in a different disposition of the case." Michigan Dept. of Treasury v. Michalec, 181 F.Supp.2d 731, 733-34 (E.D. Mich. 2002) (quoting E.D. Mich. LR 7.1(g)(3)). A "palpable defect" is "obvious, clear, unmistakeable, manifest, or plain." Id. at 734 (citing Marketing Displays, Inc. v. Traffix Devices, Inc., 971 F.Supp.2d 262, 278 (E.D. Mich. 7.1 (h)(3)).
Defendants first contend that this Court erred in denying McKay's First Amendment claim-that the Electronics Ban Order is unconstitutional as applied within the courtrooms- without prejudice. In its December 11, 2014 Order, the Court concluded that McKay lacked standing to challenge the Electronics Ban Order as applied within the courtrooms: "Nothing in McKay's papers or in the record indicates that McKay has standing, and therefore this Court is without subject matter jurisdiction to hear his claims." Order 6. Because the Court lacked subject matter jurisdiction, it dismissed McKay's claim without prejudice.
Defendants, however, contend that McKay's claim should be dismissed with prejudice because "Plaintiff McKay can never acquire standing...." Mot. Recons. 4. Defendants maintain that, because McKay cannot acquire standing, his First Amendment claim should be dismissed with prejudice.
As noted in its December 11, 2014 Order, a plaintiff's lack of standing is a constitutional defect, and a court does not have subject matter jurisdiction over such a plaintiff's claims. Order 6 (citing Hyman v. City of Louisville, 53 F.Appx. 740, 744 (6th Cir. 2002)); see also Allstate Ins. Co. v. Global Medical Billing, Inc., 520 F.Appx. 409, 411 (6th Cir. 2013) ("a dismissal for lack of subject-matter jurisdiction does not operate as a merits adjudication and is presumably granted without prejudice.") (citing Pratt v. Ventas, Inc., 365 F.3d 514, 523 (6th Cir. 2004)).
Defendants have identified a case that appears contrary to the Sixth Circuit's general holding that a dismissal for lack of standing is without prejudice. In B. & V. Distributing Co., Inc. v. Dottore Companies, Inc., 278 F.Appx. 480 (6th Cir. 2008), the Sixth Circuit affirmed the dismissal with prejudice of a plaintiff's breach of contract claim even though the plaintiff lacked standing. However, the Sixth Circuit's conclusion was narrow; it explained that "[w]e do not view the district court's decision as resting upon [plaintiff]'s lack of standing' in the constitutional sense." Id. at 487. Instead, the Sixth Circuit noted that the dispositive question was whether the plaintiff had stated a viable claim for relief under Federal Rule of Civil Procedure 12(b)(6): "Under these circumstances, the district court properly concluded that [plaintiff] had failed to state a breach-of-contract claim upon which relief could be granted to him, and this disposition under Rule 12(b)(6) properly resulted in a dismissal with prejudice." Id. at 488.
In contrast, this Court's December 11, 2014 does rest upon McKay's lack of standing in the constitutional sense. Therefore, B. & V. Distributing is distinguishable from the instant case. Defendants' motion for reconsideration will be denied with respect to this issue.
Next, Defendants contend that they should be granted summary judgment on McKay's Fifth and Fourteenth Amendment claims. In its December 11, 2014 Order, the Court noted that Defendants had moved for summary judgment only on McKay's First Amendment claims-but not his Fifth and Fourteenth Amendment claims. Order 31. ...