` Case 3:18-cv-01032-B Document 39 Filed 10/19/18 Page 1 of 11 PageID 266
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`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF TEXAS
`DALLAS DIVISION
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`§§
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`§§
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`§ CIVIL ACTION NO. 3:18-CV-1032-B
`§
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`BRANDON REED, et. al.,
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`Plaintiffs,
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`v.
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`§§
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`§
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`MIKE RAWLINGS, et. al.,
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`Defendants.
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`MEMORANDUM OPINION AND ORDER
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`Before the Court is Defendant’s Motion to Dismiss. Plaintiffs have failed to timely respond
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`and to appear at a hearing in this case. As such, the Court finds that this case should be
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`DISMISSED for two independent grounds: failure to prosecute and lack of standing.
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`I.
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`BACKGROUND
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`In the summer of 2017, the City of Dallas began considering whether to rename certain
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`streets and other public places currently named for Confederate figures. Doc. 18, Defs.’ App., 1. The
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`Mayor appointed a Task Force to investigate and to hold public meetings on the issue. Id. at 8. The
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`Task Force was responsible for making recommendations to City Council, which it did. Id. at 8,
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`34–39. On April 25, 2018, City Council, via resolution, voted not to follow the Task Force’s
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`recommendations regarding renaming streets, so no street names were changed. Id. at 47. According
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`to the City, it did not change the procedure for seeking a street name change. Doc. 17, Defs.’ Br. in
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`Supp. of Mot. to Dismiss, 10.
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` Case 3:18-cv-01032-B Document 39 Filed 10/19/18 Page 2 of 11 PageID 267
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`Plaintiffs then filed suit against the Mayor and the City Councilmembers in their official
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`capacities (collectively, “the City”). The crux of Plaintiffs’ Complaint seems to be their confusion on
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`whether the City Council Resolution on April 25, 2018, modified the Code and thus prohibits
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`Plaintiffs from renaming streets like Marilla or Ewing. Doc. 6, Am. Compl., ¶ 42. Plaintiffs listed only
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`Ewing and Marilla as streets that concern them, neither of which were submitted for City Council
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`review. See generally id. (presenting evidence that Ewing and Marilla were linked to the
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`Confederacy); Defs.’ App., 47. Plaintiffs admitted also that—at least prior to April 2018—city
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`ordinances specify a procedure for changing these street names. Id. ¶ 45. As the City points out, this
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`street-name change process may be initiated only by: “an owner of property abutting the street,” or
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`certain city officials or commissions. Dallas City Code § 51A-9.302(b). According to the Code, a
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`property owner who wishes to initiate the street-name change process must file an application that
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`includes a petition indicating that at least fifty-one percent of the owners of all lots abutting the
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`street favor the name change. Id. § 51A-9.303. Only one Plaintiff, Ishmael Muhammad, is alleged
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`to own property on Ewing or Marilla, although mail has not been deliverable to him at his Ewing
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`address. Am. Compl., ¶ 44; e.g., Doc. 31 (certified mail unexecuted). But Plaintiffs have not alleged
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`that Mr. Muhammad initiated the Code’s street-name change process. See Am. Compl., ¶ 44.
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`Plaintiffs allege three causes of action against the City: (1) a “violation of First Amendment
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`right to free speech by use of content based prior restraint”; (2) a “violation of due process rights”;
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`and (3) a “violation of equal protection of law.” Id. at 9–12. Besides their Original Complaint, this
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`Amended Complaint is the only substantive briefing the Plaintiffs have filed in this case, despite
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`receiving an extension of time to respond to the City’s Motion to Dismiss. See Doc. 35, Defs.’ Notice
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`of No Responses, 1–2.
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` Case 3:18-cv-01032-B Document 39 Filed 10/19/18 Page 3 of 11 PageID 268
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`Named in the complaint are five individual plaintiffs and two entity plaintiffs.1 The Court has
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`only had direct contact with one—Plaintiff Stephen Benavides—through a telephone call on
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`October 5, 2018. The Court has no valid mailing address for two other Plaintiffs—Mr. Muhammad
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`and Brandon Reed. Mr. Muhammad and Mr. Reed were ordered to update their contact information
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`with the Court by October 15, 2018, but have not. Id. No Plaintiff has registered with ECF. See Doc.
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`33, Order Setting Status Conf., 2.
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`In fact, as this case has continued, Plaintiffs have become more elusive and non-
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`communicative. While Plaintiffs were originally represented by counsel, their counsel filed a motion
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`to withdraw on August 6, 2018, which the Court granted on August 7, 2018. Doc. 14, Order
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`Granting Mot. to Withdraw. Since then, Plaintiffs have been proceeding pro se. But as mentioned,
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`the contact information they provided through their former counsel is incorrect, and they have not
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`responded to this Court’s orders to update that information. And despite a court order to do so, no
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`Plaintiff called the Court to confirm attendance at the hearing. See Order Setting Status Conf., 2.
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`The City filed a Motion to Dismiss based on Federal Rules of Civil Procedure 12(b)(6) and
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`12(b)(1) on August 9, 2018, shortly after Plaintiffs’ counsel withdrew and left Plaintiffs to proceed
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`pro se. Doc. 17, Defs.’ Mot. to Dismiss. Due to the confusion around where the Motion should be
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`served, Defendants refiled it on August 31, 2018. Doc. 20, Am. Doc. In response to an email from
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`1 On September 4, 2018, the entity plaintiffs (the People’s Assembly of Dallas, and the
`Commemoration Committee to Honor Roy Williams and Marvin E. Crenshaw) were ordered to appear
`with counsel by October 4, 2018. Doc. 23. They have not done so, and failed to appear at the hearing.
`This alone would be sufficient to dismiss them from the case. See Southwest Express Co. Inc. v. Interstate
`Commerce Comm’n, 670 F.2d 53, 55 (5th Cir. 1982) (“Corporations and partnerships, both of which are
`fictional legal persons, obviously cannot appear for themselves personally. . . . [T]hey must be represented
`by licensed counsel.”) (quoting Turner v. Am. Bar Ass’n, 407 F. Supp. 451, 476 (N.D. Tex. 1975).
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` Case 3:18-cv-01032-B Document 39 Filed 10/19/18 Page 4 of 11 PageID 269
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`Mr. Benavides, Defendants agreed to not oppose a motion for extension of time to respond and find
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`counsel, which this Court granted on September 7, 2018. Defs.’ Notice of No Responses, 2; Doc. 25,
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`Order Granting Mot. to Extend. The deadline for a response was October 4, 2018. Doc. 25, Order.
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`To date, Plaintiffs have failed to respond or request another extension.
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`On October 15, 2018, the Court held a hearing to address whether any Plaintiff would
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`continue with the case. Not a single Plaintiff appeared, despite both this Court’s diligence in
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`procuring their attendance and efforts by Defendants to contact Plaintiffs. For example, the Court
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`telephoned both former counsel and Mr. Benavides. Former counsel had no better contact
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`information for Plaintiffs, and while Mr. Benavides assured the Court that all Plaintiffs had received
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`notice of the Court’s orders, he did not provide any updated contact information. The City even
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`attempted to identify a more current address for Mr. Muhammad, and forwarded this Court’s order
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`accordingly. Doc. 35, Defs.’ Notice of No Responses, 1–2.
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`Plaintiffs’ absence alone warrants dismissal of all claims. In addition, the Court has reviewed
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`the City’s Motion to Dismiss and finds that Plaintiffs also do not have standing to bring the claims
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`pleaded. As such, the Court DISMISSES the Plaintiffs’ claims.
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`II.
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`LEGAL STANDARD
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`“In deciding a Rule 12(b)(6) motion to dismiss, the court evaluates the sufficiency of the
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`plaintiff's complaint by accepting all well-pleaded facts as true, viewing them in the light most
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`favorable to the plaintiff.” TF-Harbor LLC v. City of Rockwall Tex., 18 F. Supp. 3d 810, 816 (N.D.
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`Tex. 2014) (internal quotations omitted) (reviewing standing). To survive the motion, plaintiffs must
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`plead “enough facts to state a claim to relief that is plausible on its face.” Id. (citing Bell Atl. Corp.
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` Case 3:18-cv-01032-B Document 39 Filed 10/19/18 Page 5 of 11 PageID 270
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`v. Twombly, 550 U.S. 544, 570 (2007) (internal quotations omitted). “Factual allegations must be
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`enough to raise a right to relief above the speculative level[.]” Twombly, 550 U.S. at 555.
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`A Rule 12(b)(1) motion to dismiss for lack of jurisdiction can support either a facial or factual
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`challenge to subject matter jurisdiction. TF-Harbor, 18 F. Supp. 3d at 817. A facial challenge is one
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`in which a party does not include evidence with its motion, and a court uses the 12(b)(6) standard
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`to assess the plaintiff’s pleadings. Id. A factual challenge is one in which a party includes evidence.
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`Then “the court is free to weigh the evidence and satisfy itself as to the existence of its power to hear
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`the case.” Id. (quoting Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981)).
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`III.
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`ANALYSIS
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`A. Dismissal Based on Failure to Prosecute
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`When a plaintiff fails to respond to a motion to dismiss and fails to otherwise meaningfully
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`participate in a case despite repeated opportunities to do so, the district court is within its discretion
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`to dismiss the case. Boudwin v. Graystone Ins. Co., Ltd., 756 F.2d 399, 401 (5th Cir. 1985) (discussing
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`how a “district court may dismiss sua sponte, with or without notice to the parties” a claim for failure
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`to prosecute).
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`Here, lesser sanctions than dismissal have been pursued, and additional measures would be
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`ineffective. For example, the Court has already communicated an explicit warning to Plaintiffs that
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`their claims could be dismissed through its Order Setting a Status Conference (Doc. 33). Because
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`Plaintiffs have failed to register for ECF, the Court has sent this and other orders to Plaintiffs in an
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`attempt to impress upon Plaintiffs the need to participate in the case. The Court even called Mr.
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`Benavides, who acknowledged that he and his co-Plaintiffs were aware of the repercussions of a
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` Case 3:18-cv-01032-B Document 39 Filed 10/19/18 Page 6 of 11 PageID 271
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`failure to attend the hearing. Still no one attended the hearing nor responded to the City’s Motion.
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`As the Fifth Circuit has stated, “even a non-lawyer should realize the peril to her case, when she
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`ignores the necessity to obtain new counsel, ignores numerous notices, and fails to attend hearings
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`and depositions.” Anthony v. Marion County General Hospital, 617 F.2d 1164, 1169 (5th Cir. 1980).
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`As such, this Court is warranted in dismissing Plaintiffs’ claims for failure to prosecute.
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`B. Dismissal Based on Lack of Standing
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`Even if this Court did not dismiss based on Plaintiffs’ failure to prosecute, dismissal is proper
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`because Plaintiffs do not have standing.
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`The judicial power of federal courts is limited by Article III of the Constitution. Rivera v.
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`Wyeth–Ayerst Labs., 283 F.3d 315, 318 (5th Cir. 2002). “[T]he Constitution’s central mechanism
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`of separation of powers depends largely upon common understanding of what activities are
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`appropriate to legislatures, to executives, and to courts.” Id. (quoting Lujan v. Defenders of Wildlife,
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`504 U.S. 555, 559–60 (1992)). Constitutional or Article III standing “‘is an essential and unchanging
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`part of the case-or-controversy requirement of Article III.’” Ford v. NYLCare Health Plans of Gulf
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`Coast, Inc., 301 F.3d 329, 332 (5th Cir. 2002) (quoting Lujan, 504 U.S. at 560). Even when standing
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`is not raised by the parties, the Court must, where necessary, raise the issue sua sponte. Collins v.
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`Mnuchin, 896 F.3d 640, 654 n.83 (5th Cir. 2018) (citing Ford, 301 F.3d at 331–32).
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`The party invoking federal jurisdiction bears the burden of proof in establishing all three
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`elements of Article III standing. Ford, 301 F.3d at 332. To satisfy the prerequisites of Article III
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`standing, Plaintiffs must show they: (1) suffered an injury in fact (one that is “concrete and
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`particularized” and “actual or imminent, not conjectural or hypothetical”); (2) there is a causal
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`connection between the injury and the challenged conduct of the defendants; and (3) the injury will
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` Case 3:18-cv-01032-B Document 39 Filed 10/19/18 Page 7 of 11 PageID 272
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`likely be redressed by a favorable decision. Lujan, 504 U.S. at 559-60 (1992). An association has
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`standing to bring suit on behalf of its members only if “its members would otherwise have standing
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`to sue in their own right.” Texans United for a Safe Econ. Educ. Fund v. Crown Cent. Petroleum Corp.,
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`207 F.3d 789, 792 (5th Cir. 2000) (citing Hunt v. Washington State Apple Advertising Comm’n, 432
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`U.S. 333, 343 (1977)). Associations that seeks to bring suit in their own right “cannot manufacture
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`standing merely by inflicting harm on themselves based on their fears of hypothetical future harm
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`that is not certainly impending.” Clapper v. Amnesty Int’l USA, 568 U.S. 398, 416 (2013). The
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`association’s injury must be concrete and demonstrable—something more than simply a setback to
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`the organization’s abstract social interests. Havens Realty Corp. v. Coleman, 455 US 363, 379 (1982).
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`“The standing question thus bears close affinity to questions of ripeness—whether the harm
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`asserted has matured sufficiently to warrant judicial intervention.” Warth v. Seldin, 422 U.S. 490, 499
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`n.10 (1975). These concepts are often addressed together. Id. A claim has not ripened if it “rests
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`upon contingent future events that may not occur as anticipated, or indeed may not occur at all.”
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`Texas v. United States, 523 U.S. 296, 300 (1998) (internal quotations omitted).
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`Here, the City argues in its Motion to Dismiss that Plaintiffs do not have standing in large
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`part because they have not sufficiently alleged injury in fact, under neither a facial or factual review.
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`Doc. 17, Mot. Dismiss, 12. Plaintiffs have failed to respond. In their pleadings—the only substantive
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`filings Plaintiffs submitted—Plaintiffs state in a conclusory manner that they “have standing as
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`property owners on streets named after Confederate Generals/leaders, as African Americans, as
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`members of the Committee and the Assembly, and also as residents of Dallas County and the City
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`of Dallas.” Doc. 6, Am. Compl. ¶ 60. After reviewing the briefings, the Court finds that Plaintiffs
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`have not demonstrated injury in fact because no actual injury has occurred or is imminent. A review
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` Case 3:18-cv-01032-B Document 39 Filed 10/19/18 Page 8 of 11 PageID 273
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`using the 12(b)(1) standard for factual attacks makes this clear.
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`With respect to the standing arguments expressly alleged by Plaintiffs, the Committee and
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`Assembly have standing only insofar as at least one of their groups members does. See Am. Compl.,
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`¶ 52 (citing Bray v. Fenves, No. 06-15-00075-CV, 2016 WL 3083539 (Tex. App.—Texarkana Mar.
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`24, 2016) (no standing found when appellants asserted that an association had standing to sue on
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`behalf of its members). In addition, only Mr. Muhammad is alleged to own property on a street
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`named after a Confederate leader. Therefore the Court’s analysis focuses on whether Mr.
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`Muhammad has standing—if he does not, then no other Plaintiff has standing either.
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`The crux of Plaintiffs’ Complaint seems to be their confusion on whether the City Council
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`Resolution on April 25, 2018, modified the Code and thus prohibits Plaintiffs from renaming streets
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`like Marilla or Ewing. Am. Compl., ¶ 42. But given the evidence presented by the City, this is a false
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`conclusion. The Resolution reads:
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`That Dallas streets with names linked to the Confederacy, including Lee Parkway,
`Gano, Stonewall, Beauregard, and Cabell, shall not be renamed because of the
`significant residents’ opposition on Lee Parkway, the contributions to Dallas of the
`Gano and Cabell families, and the unclear origins and associations (based on
`inclusive City of Dallas records and archives) of the Beauregard and Stonewall
`names.
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`Doc. 18, Defs.’ App. 47. This language does not change the City Code. The City simply decided not
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`to take action on the Task Force’s recommendations as to street names. Neither Marilla nor Ewing
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`were considered in the Resolution.
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`Without the alleged procedural change, Plaintiffs have no case. Plaintiffs themselves
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`acknowledge that at least prior to the City’s Resolution, the city ordinances specified a procedure for
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`changing these street names. Id. ¶ 45 (citing the relevant Code sections). That procedure may be
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` Case 3:18-cv-01032-B Document 39 Filed 10/19/18 Page 9 of 11 PageID 274
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`initiated only by: “an owner of property abutting the street,” or certain city officials or commissions.
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`Dallas City Code § 51A-9.302(b). A property owner who wishes to initiate the street-name change
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`process must file an application that includes a petition indicating that at least fifty-one percent of
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`the owners of all lots abutting the street favor the name change. Id. § 51A-9.303. Plaintiffs have not
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`alleged that Mr. Muhammad initiated the street name change process as described in the Code. See
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`Am. Compl., ¶ 44. Therefore, Mr. Muhammad’s injury is hypothetical, not actual or imminent,
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`because he has failed to even attempt to initiate the proper procedure. Whether he is injured is
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`dependent on future events that may never occur.
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`Considering these facts—and cognizant of the fact that the party invoking federal jurisdiction
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`bears the burden of proof in establishing all three elements of Article III standing—the Court finds
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`that all three of Plaintiffs’ claims fail for lack of standing and ripeness. No First Amendment violation
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`has occurred because, inter alia, Plaintiffs are free to seek name changes under the Code. And even
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`if the City had amended its Code to prohibit the renaming of certain streets, the Plaintiffs’ Amended
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`Complaint does not explain with particularity what injury has occurred. For example, the Amended
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`Complaint does not explain how the preservation of certain street names prevents the Plaintiffs from
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`expressing their own political view points. See Patterson v. Rawlings, 287 F. Supp. 3d 632, 641 (N.D.
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`Tex. 2018) (plaintiff lacked standing for his First Amendment claim because City’s removal of a
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`Confederate monument did not prohibit plaintiff from expressing his political viewpoint). There are
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`many cases that stand for the proposition that the presence or removal of the names of Confederate
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`leaders or Confederate symbols on government property does not implicate the First Amendment
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`and nor confer standing. See, e.g., id.; Moore v. Bryant, 853 F.3d 245, 248, 252–53 (5th Cir. 2017)
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`(holding no standing to contest Mississippi’s inclusion of the Confederate flag on its own state flag).
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` Plaintiffs’ due process claim fails as well. See Doc. 6, Am. Compl., ¶¶ 55–56 (decrying the
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`lack of procedural due process). Contrary to the Plaintiffs’ allegations, the City has not changed the
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`process for amending street names, so no procedural violations have occurred. And Plaintiffs have
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`not provided more than conclusory allegations of a constitutionally protected interest in the City’s
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`street names. See id. In addition, Plaintiffs’ volunteer work with the Assembly and the Committee
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`is insufficient to create a cognizable interest. See Hale v. Bexar Cty, Tex., 342 F. App’x 921, 927 (5th
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`Cir. 2009) (holding that “there is no constitutionally cognizable interest in a volunteer position”).
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`Finally, Plaintiffs’ equal protection claim also fails. See id. ¶ 57. Plaintiffs point out that on
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`the same day the City Council voted to prohibit renaming streets in Dallas after Confederate
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`Generals and/or leaders, the City Council held a hearing on renaming a different street, “Unnamed
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`FN3.” Id. ¶¶ 43, 57. Plaintiffs do not allege that the City made a decision about this street, and even
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`if it had, this would be insufficient to give rise to more than a speculative inference that an equal
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`protection violation had occurred.
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`IV.
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`CONCLUSION
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`For these reasons, the Court DISMISSES the Plaintiffs’ claims, and GRANTS Defendants’
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`Motion to Dismiss (Doc. 16).
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`SO ORDERED.
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`SIGNED: October 19, 2018.
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`_________________________________
`JANE J. BOYLE
`UNITED STATES DISTRICT JUDGE
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