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1:13-cv-00631 #6

1:13-cv-00631 #6

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Published by Equality Case Files
Doc 6 - Perry Motion to dismiss amended complaint
Doc 6 - Perry Motion to dismiss amended complaint

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Categories:Types, Business/Law
Published by: Equality Case Files on Nov 20, 2013
Copyright:Attribution Non-commercial

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11/20/2013

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󰁄󰁥󰁦󰁥󰁮󰁤󰁡󰁮󰁴󲀙󰁳 󰁒󰁵󰁬󰁥 󰀱󰀲󰀨󰁢󰀩󰀨󰀱󰀩 󰁍󰁯󰁴󰁩󰁯󰁮 󰁴󰁯 󰁄󰁩󰁳󰁭󰁩󰁳󰁳 󰁐󰁡󰁧󰁥 󰀱
IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS AUSTIN DIVISION
CHRISTOPHER DANIEL McNOSKY,
Plaintiff 
, SVEN STRICKER,
Plaintiff 
, v. TEXAS GOVERNOR RICK PERRY,
 Defendant.
 
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 Case No. A13-CV-0631 SS
DEFENDANT’S
RULE
 
12(
B
)(1)
 
MOTION
 
TO
 
DISMISS
TO THE HONORABLE SAM SPARKS: Defendant Texas Governor Rick Perry pursuant to Rule 12(b)(1) F
ED
.
 
R.
 
C
IV
.
 
P moves this Court to dismiss all claims alleged by the Plaintiffs for lack of subject matter  jurisdiction, and would respectfully show the Court the following:
I. INTRODUCTION
1. Plaintiffs McNosky and Stricker filed this suit alleging that an unnamed Tarrant County official refused to process their application for a marriage license “because they were both of the same sex.” Amended Complaint, ¶ 4. They allege that this violated their rights to equal protection under the Fourteenth Amendment of the U.S. Constitution. 2. Their only jurisdictional allegation of standing is that Defendant Governor Perry had some undisclosed “role in the enforcement of Article I. Sec. 32 of the Texas Constitution…and Texas Family Code , …¶ 2.001(b)” presumably in the purported denial of the Plaintiff’s application for a marriage license.
Case 1:13-cv-00631-SS Document 6 Filed 09/16/13 Page 1 of 5
 
󰁄󰁥󰁦󰁥󰁮󰁤󰁡󰁮󰁴󲀙󰁳 󰁒󰁵󰁬󰁥 󰀱󰀲󰀨󰁢󰀩󰀨󰀱󰀩 󰁍󰁯󰁴󰁩󰁯󰁮 󰁴󰁯 󰁄󰁩󰁳󰁭󰁩󰁳󰁳 󰁐󰁡󰁧󰁥 󰀲
II. STANDARD OF REVIEW
 
Federal Rule of Civil Procedure 12(b)(1)
3. The Federal Rules of Civil Procedure require dismissal of a lawsuit if the plaintiff’s case is not ripe for adjudication, since a lack of a case or controversy prevents a court from exercising subject matter jurisdiction over the matter. F
ED
.
 
R.
 
C
IV
.
 
P. 12(b)(1). The lack of ripeness can be raised at any time by a party.
Sample v. Morrison
, 406 F.3d 310, 312 (5
th
 Cir. 2005). 4. The Court should dismiss a case when the plaintiff fails to establish subject matter  jurisdiction. F
ED
.
 
R.
 
C
IV
.
 
P. 12(b)(1). "It is incumbent on all federal courts to dismiss an action whenever it appears that subject matter jurisdiction is lacking."
Stockman v. Federal Election Com'n
, 138 F.3d 144, 151 (5th Cir. 1998). A case is properly dismissed for lack of subject matter jurisdiction when the court lacks the statutory or constitutional power to adjudicate the case.
 Home Builders Ass'n of Mississippi, Inc. v. City of  Madison, Miss
., 143 F.3d 1006, 1010 (5th Cir. 1998) (internal quotation marks and citation omitted). The burden of establishing federal jurisdiction rests on the party seeking the federal forum.
Stockman
, 138 F.3d at 151. In this case, the Plaintiff has the burden of establishing that the court has subject matter jurisdiction over his claims.
III. ARGUMENT AND AUTHORITIES Eleventh Amendment
5.
 
The Eleventh Amendment bars suits by private citizens against a state in federal court, irrespective of the nature of the relief requested, including suits against state officials in their official capacities.
Pennhurst State Sch. & Hosp. v. Halderman
, 465 U.S. 89, 102 (1984).Under the narrow
 Ex parte Young
 exception, however, “a federal
Case 1:13-cv-00631-SS Document 6 Filed 09/16/13 Page 2 of 5
 
󰁄󰁥󰁦󰁥󰁮󰁤󰁡󰁮󰁴󲀙󰁳 󰁒󰁵󰁬󰁥 󰀱󰀲󰀨󰁢󰀩󰀨󰀱󰀩 󰁍󰁯󰁴󰁩󰁯󰁮 󰁴󰁯 󰁄󰁩󰁳󰁭󰁩󰁳󰁳 󰁐󰁡󰁧󰁥 󰀳
court, consistent with the Eleventh Amendment, may enjoin state officials to conform their future conduct to the requirements of federal law.”
Pennhurst 
, 465 U.S. at 102-103.
 
6. In order to overcome the Eleventh Amendment bar through this
 Ex parte Young
 fiction, however, the defendant state official that is sued must have “‘some connection with the enforcement of the act’ in question or be ‘specially charged with the duty to enforce the statute.’”
Okpalobi v. Foster 
, 244 F.3d 405, 414-15 (5
th
 cir. 20021) (en banc). Otherwise, just because he is the Governor of Texas, Plaintiffs here could test “...then the constitutionality of every act passed by the legislature …by a suit against the governor and the attorney general.... (quoting
 Ex parte Young,
at pp.411-412.). 7. In order to establish the connection required under
 Ex parte Young
, the state officer that is sued must have more than some generalized duty to enforce or defend the laws of the state. Eleventh Amendment immunity obtains unless “They were not expressly directed to see to its enforcement.”
Okpalobi,
at 413. 8. For the foregoing reasons, the Plaintiffs cannot demonstrate that the Governor’s immunity from suit can be overcome under
 Ex Parte Young
; as such, their claims are  jurisdictional barred and must be dismissed.
See
 
Okpalobi
, 244 F.3d at 416-21.
A. Plaintiffs Cannot Establish Standing or Ripeness
9. To obtain Art. III jurisdiction under the Constitution plaintiffs must meet the standards set forth in
 Lujan v. Defenders of Wildlife
, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). ”First, they must show that they have suffered, or are about to suffer, an “injury in fact.” Second, “there must be a causal connection between the injury and the conduct complained of.” Third, “it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.”
 Id.
(citation
Case 1:13-cv-00631-SS Document 6 Filed 09/16/13 Page 3 of 5

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