Freeman v. Keene, NH, City of

D. New Hampshire

Freeman v. Keene, NH, City of

DecidedAugust 10, 2021

Docket1:20-cv-00963

StatusUnknown

This text of Freeman v. Keene, NH, City of (Freeman v. Keene, NH, City of) is published on Counsel Stack Legal Research, covering District Court, D. New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Freeman v. Keene, NH, City of, (D.N.H. 2021).

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Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Ian B. Freeman et al.

v. Civil No. 20-cv-963-LM Opinion No. 2021 DNH 122 P City of Keene et al.

O R D E R

Plaintiffs Ian B. Freeman, Shire Free Church Monadnock, Malaise Lindenfeld, Pho Keene Great, LLC, and Aria DiMezzo (d/b/a Reformed Satanic Church) bring this action for declaratory, injunctive, and monetary relief against defendants City of Keene and Governor Christopher T. Sununu. Plaintiffs challenge the legality of a city ordinance and three of the Governor’s emergency orders, all of which required persons to wear face masks in certain circumstances. Presently before the court are defendants’ motions to dismiss. See doc. nos. 15 and 16. Defendants argue, inter alia, that plaintiffs lack standing because plaintiffs fail to allege that they have suffered or are likely to suffer any concrete, particularized injury. For the reasons explained below, the court agrees that plaintiffs have not demonstrated standing and that this court lacks subject-matter jurisdiction. Defendants’ motions to dismiss are therefore granted. STANDARD OF REVIEW There are two ways to challenge a court’s subject-matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1).1 See Hernández-Santiago v. Ecolab, Inc.,

397 F.3d 30, 33 (1st Cir. 2005); see also 5B Arthur R. Miller et al., Federal Practice & Procedure: Civil § 1350 (3d ed.). First, the defendant may challenge the sufficiency of the allegations relied upon in the complaint to support jurisdiction. See Hernández-Santiago, 397 F.3d at 33. Alternatively, the defendant can challenge the accuracy of the complaint’s jurisdictional allegations. See id. The court’s standard of review differs depending on the challenge brought. See Valentin v. Hosp. Bella Vista, 254 F.3d 358, 363 (1st Cir. 2001). Where a defendant

challenges only the sufficiency of the complaint’s jurisdictional facts, the standard of review is the same as the Rule 12(b)(6) standard. See Sevigny v. United States, Civ. No. 13-cv-401-PB, 2014 WL 3573566, at *2-3 (D.N.H. July 21, 2014); Valentin, 254 F.3d at 363. Where a defendant challenges the accuracy of the plaintiffs’ allegations, those allegations “are entitled to no presumptive weight,” and “the court must address the merits of the jurisdictional claim by resolving the factual

disputes between the parties.” Valentin, 254 F.3d at 363.

1 Defendants purport to bring their standing challenges under Federal Rule of Civil Procedure 12(b)(6). See doc. nos. 15-1 at 4-5; 16 at 1; 21 at 1-3. However, standing is an issue of subject-matter jurisdiction. See Drewniak v. U.S. Customs and Border Prot., Civ. No. 20-cv-852-LM, 2021 WL 1318028, at *1-2 (D.N.H. Apr. 8, 2021). Since Rule 12(b)(1) governs challenges to the court’s subject-matter jurisdiction, the court analyzes defendants’ standing challenges under Rule 12(b)(1). Here, defendants challenge only the sufficiency of the facts relied upon in the amended complaint to demonstrate jurisdiction. Therefore, the court resolves the standing issue under the familiar Rule 12(b)(6) standard. Under this standard, the

court accepts the factual allegations in the complaint as true and construes reasonable inferences in plaintiffs’ favor. See Foley v. Wells Fargo Bank, N.A., 772 F.3d 63, 71, 75 (1st Cir. 2014). The court may also consider facts susceptible to judicial notice, Rodríguez-Ramos v. Hernández-Gregorat, 685 F.3d 34, 37 (1st Cir. 2012), as well as any documents the authenticity of which is not disputed by the parties, official public records, documents central to plaintiffs’ claims, or documents sufficiently referred to in the complaint, see Ironshore Specialty Ins. Co. v. United

States, 871 F.3d 131, 135 (1st Cir. 2017). Dismissal is required if “the facts alleged in the complaint, taken as true, do not justify the exercise of subject matter jurisdiction.” Muniz-Rivera v. United States, 326 F.3d 8, 11 (1st Cir. 2003). In addition to their standing challenges, defendants argue that plaintiffs’ amended complaint fails to state a claim under Rule 12(b)(6). “When faced with motions to dismiss under both 12(b)(1) and 12(b)(6), a district court, absent good

reason to do otherwise, should ordinarily decide the 12(b)(1) motion first.” Ne. Erectors Ass’n of BTEA v. Sec’y of Labor, 62 F.3d 37, 39 (1st Cir. 1995) (citing Miller et al., supra (“[T]he cases are legion stating that the district court should consider the Rule 12(b)(1) challenge first because if it must dismiss the complaint for lack of subject matter jurisdiction, the accompanying defenses and objections become moot . . . .”). “It is not simply formalistic to decide the jurisdictional issue when the case would be dismissed in any event for failure to state claim. Different consequences flow from dismissals under 12(b)(1) and 12(b)(6): for example, dismissal under the former, not being on the merits, is without res judicata effect.” Id. (citation

omitted). Here, because the court concludes that plaintiffs lack standing, it does not reach defendants’ additional arguments for dismissal. See id.; Deniz v. Munic. of Guaynabo, 285 F.3d 142, 150 (1st Cir. 2002) (regarding district court’s 12(b)(6) ruling “as a nullity” because district court lacked subject-matter jurisdiction); see also, e.g., Aung v. Prettenhoffer, ___ F. Supp. 3d ___, 2021 WL 2458204, at *7-8 (D. Mass. June 16, 2021).

BACKGROUND The following facts are drawn from the amended complaint except where otherwise indicated.

I. The Governor’s Emergency Orders COVID-19 began circulating in the United States in late 2019 or early 2020.

Statistical models from that time suggested the virus would have a disastrous effect on the country, spreading rapidly and causing millions of deaths. For example, a report issued by a team at Imperial College in London predicted that, if left unchecked, COVID-19 could cause up to 2.2 million deaths in the United States. Under New Hampshire law, the Governor has “the power to declare a state of emergency . . . by executive order if the governor finds that a natural, technological, or man-made disaster of major proportions is imminent or has occurred within this state,” and that such a declaration is needed to protect “the safety and welfare of the inhabitants of this state.” RSA 4:45, I (2013) (amended 2021). “During the

existence of a state of emergency, and only for so long as such state of emergency shall exist, the governor shall have and may exercise . . . emergency powers,” RSA 4:45, III (2013), including any power that is “necessary to promote and secure the safety and protection of the civilian population,” RSA 4:45, III(e). See also RSA 4:47, III (2013) (governor also possesses “[t]he power to make . . . necessary orders . . . to carry out the provisions of this subdivision in the event of a disaster beyond local control”).

“A state of emergency shall terminate automatically 21 days after its declaration, unless it is renewed under the same procedures set forth in paragraph I of this [statute].” RSA 4:45, II(a) (2013).

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