statements, Plaintiffs fled from Utah to Nevada for fear that they would be criminally prosecutedfor practicing bigamy. Despite not living and exercising their speech in Utah, they continue tovisit relatives and associates in Utah. Once the threat of prosecution is lifted, however, theyexpect to relocate to the State of Utah.
STANDARD FOR A RULE 12(B)(1) MOTION TO DISMISS
Before the court is Defendants’ Fed. R. Civ. P. 12(b)(1) motion to dismiss for lack of standing. The Supreme Court has directed that “[f]or purposes of ruling on a motion to dismissfor want of standing . . . courts must accept as true all material allegations of the complaint, andmust construe the complaint in favor of the complaining party.”
Warth v. Seldin
, 422 U.S. 490,501 (U.S. 1975). Indeed, this pleading standard “does not require detailed factual allegations,but . . . [a] pleading that offers labels and conclusions . . . will not do. Nor does a complaintsuffice if it tenders naked assertions devoid of further factual enhancement . . . .”
Ashcroft v. Iqbal
, 129 S. Ct. 1937, 1949 (2009).The Tenth Circuit has further explained:Generally,
Rule 12(b) (1)
motions to dismiss for lack of subject matter jurisdictiontake two forms. First, a facial attack on the complaint’s allegations as to subjectmatter jurisdiction questions the sufficiency of the complaint. In reviewing afacial attack on the complaint, a district court must accept the allegations in thecomplaint as true. Second, a party may go beyond allegations contained in thecomplaint and challenge the facts upon which subject matter jurisdiction depends.When reviewing a factual attack on subject matter jurisdiction, a district courtmay not presume the truthfulness of the complaint’s factual allegations. A courthas wide discretion to allow affidavits, other documents, and a limited evidentiaryhearing to resolve disputed jurisdictional facts under
Holt v. United States
, 46 F.3d 1000, 1002-04 (10th Cir. 1995) (citations omitted).
Accordingly, insofar as Defendants have not challenged Plaintiffs’ factual assertions, thecourt will accept them as true and look to whether such facts, as alleged, are sufficient toestablish Plaintiffs’ standing as a matter of law. Where Defendants have challenged Plaintiffs’
Case 2:11-cv-00652-CW Document 31 Filed 02/03/12 Page 3 of 21