Opinion
Case No. A4-04-121, Docket No. 8.
November 16, 2004
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS
On September 29, 2004, the plaintiff, Darrel Dubois, commenced this lawsuit against the defendant, Wayne Stenehjem, the Attorney General of North Dakota. Dubois is challenging the "cost bond" law that requires the payment of costs before the State can be sued in a contractual dispute. Dubois contends that the cost bond required under state law is expensive and prevents poor persons from commencing lawsuits in state court. See Complaint ¶ 1. For the reasons set forth below, the motion to dismiss is granted.
I. BACKGROUND
In March 2004, Dubois requested a refund of motor vehicle excise taxes from the State Tax Commissioner. See Complaint ¶ 6. The taxes were paid by Dubois on a 1998 GMC van and a 1998 Ford pickup. The total amount of the tax paid is unknown. It is alleged that on March 19, 2004, the State Tax Commissioner denied the requested refund and indicated that more information was needed to support the claim. See Complaint ¶ 7. Dubois contends that the costs associated with posting a bond under Section 32-12-02 of the North Dakota Century Code are prohibitive and that his constitutional rights have been violated because, as an indigent, he lacks sufficient funds to obtain a bond. Section 32-12-02 reads as follows:
32-12-02. Action against state — When authorized — Where brought — Undertaking for costs. An action respecting the title to property, or arising upon contract, may be brought in the district court against the state the same as against a private person. Such actions shall be brought in the county in which the property is situated, or the county in which the plaintiff resides. The plaintiff at the time of commencing such action shall file an undertaking with sufficient surety to be approved by the clerk of court to the effect that the plaintiff will pay any judgment for costs that may be rendered against the plaintiff.
On October 26, 2004, the Defendant filed a Motion to Dismiss the complaint contending that the Court lacks jurisdiction over the subject matter and the complaint fails to state a claim upon which relief can be granted. The primary basis for the motion is the contention that the Plaintiff lacks standing; the claims are not ripe for adjudication; the court should abstain from exercising jurisdiction; and the complaint fails to state a claim upon which relief can be granted.
II. LEGAL ANALYSIS A. STANDING
"In every federal case, the party bringing the suit must establish standing to prosecute the action." Elk Grove Unified School District v. Newdow, 124 S. Ct. 2301, 2308 (2004). "In essence the question of standing is whether the litigant is entitled to have the court decide the merits of the dispute."Id. (citing Warth v. Seldin, 422 U.S. 490, 498 (1975)). "The doctrine of standing is `an essential and unchanging part of the case-or-controversy requirement of Article III,' Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992), which itself `defines with respect to the Judicial Branch the idea of separation of powers on which the Federal Government is founded.'" Northeastern Florida Chapter of the Associated General Contractors of America v. Jacksonville, 508 U.S. 656, 663 (1993) (quoting Allen v. Wright, 468 U.S. 737, 750 (1984)).
Three requirements constitute the "irreducible constitutional minimum" of standing. "First, a plaintiff must demonstrate an `injury in fact,' which is `concrete,' `distinct and palpable,' and actual or imminent.'" McConnell v. Federal Election Commission, 540 U.S. 93, 124 S. Ct. 619, 707 (2003) (quotingWhitmore v. Arkansas, 496 U.S. 149, 155 (1990)). "Second, a plaintiff must establish `a causal connection between the injury and the conduct complained of — the injury has to be "fairly trace[able] to the challenged action of the defendant, and not . . . th[e] result [of] some third party not before the court."'"McConnell v. Federal Election Commission, 540 U.S. 93, 124 S. Ct. 619, 707 (2003) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) (quoting Simon v. Eastern Ky. Welfare Rights Organization, 426 U.S. 26, 41-42 (1976))). "Third, a plaintiff must show the `substantial likelihood' that the requested relief will remedy the alleged injury in fact."McConnell v. Federal Election Commission, 540 U.S. 93, 124 S. Ct. 619, 707 (2003) (quoting Vermont Agency of Natural Resources v. United States ex rel. Stevens, 529 U.S. 765, 771 (2000)).
"At the pleading stage, general factual allegations of injury resulting from the defendant's conduct may suffice, for on a motion to dismiss we presum[e] that general allegations embrace those specific facts that are necessary to support the claim."Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992) (internal quotations omitted). It is important to note that an inquiry into standing is not a review of the merits of the plaintiff's claims. Oti Kaga, Inc. v. South Dakota Housing Development Authority, 342 F.3d 871, 878 (8th Cir. 2003).
"Injury in fact is `an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical.'" Oti Kaga, Inc. v. South Dakota Housing Development Authority, 342 F.3d 871, 878 (8th Cir. 2003) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)).
It is well-established that the injury in fact element of standing for relief requires that the plaintiff show "that the plaintiff faces a threat of ongoing or future harm." Park v. Forest Service of the United States, 205 F.3d 1034, 1037 (8th Cir. 2000). It is clear that an abstract injury is not sufficient and that the injury or threat of injury must be real and immediate rather than conjectural or hypothetical. City of Los Angeles v. Lyons, 461 U.S. 95, 101-102 (1983).
In this case, it is clear from the record that Darrel Dubois has not suffered an injury in fact. The record reveals that on March 15, 2004, Dubois requested a refund of motor vehicle excise taxes from the State Tax Commissioner. See Complaint ¶ 6. Although Dubois alleges the Tax Commissioner denied the request, the record reveals that the request was not denied. See Defendant's Brief in Support of Motion to Dismiss, Exhibit "B." Instead, the Tax Commissioner indicated the need for additional information and requested that Dubois complete an Application and Claim for Motor Vehicle Tax Refund form and return the application form to the Tax Commissioner's Office. It appears this was never done. Dubois has not alleged, nor even argued that he completed the application form and provided the additional information to the State Tax Commissioner as requested. Instead, this lawsuit was filed in federal court.
It is also undisputed that Dubois has not commenced an action under Section 32-12-02 of the North Dakota Century Code nor alleged that he will ever bring such an action. As a result, Dubois has never been required to "file an undertaking with sufficient surety to be approved by the clerk of court to the effect that the plaintiff will pay any judgment for costs that may be rendered against the plaintiff." N.D.C.C. § 32-12-02.
Even if Dubois commenced an action in state court for the recovery of motor vehicle excise taxes paid, it is uncertain what would constitute sufficient surety to be filed or whether there would even be a need for the filing of a surety bond. The district court may always consider the indigency of the plaintiff in determining the need for sufficient surety. Whether there is a need to post a bond is a decision ultimately within the discretion of the district court at the state level. There is nothing to prevent Dubois from submitting an affidavit of indigency to the clerk of court at the time an action is filed. If such an affidavit is filed, there is nothing to prevent the district court from interpreting the surety requirement in a manner so as to avoid a possible constitutional problem. Further, if Dubois commenced an action in state court under Section 32-12-02, and an undertaking with sufficient surety was required which he was unable to provide, Dubois could raise a constitutional argument in state court at that stage. Thereafter, if the case was dismissed because of a failure to file an undertaking, the matter could be appealed to the North Dakota Supreme Court. More important, the State Tax Commissioner may issue a refund to Dubois once the appropriate application form and supporting documentation are filed. However, at this stage all of these remote possibilities are hypothetical at best, and such remote possibilities do not pose an actual or imminent injury for purposes of determining whether Dubois has standing.
Simply stated, Dubois has not suffered an "injury in fact." The speculative harm that Dubois has alleged, namely, that he may commence a lawsuit, and that he may be required to file an undertaking for costs which he may not be able to pay, is not a concrete and particularized injury, and it is certainly not an injury which is actual or imminent. Instead, the alleged harm is conjectural or hypothetical at best. As a result, Dubois has clearly failed to satisfy the first prong of the standing analysis.
The Court need not address the other prongs of the standing analysis concerning the need to have an injury traceable to a challenged action and the redress ability requirement. However, it is doubtful that Dubois has satisfied either of the remaining prongs of the standing analysis.
In summary, the Court finds that Dubois has failed to set forth an "injury in fact" needed to satisfy the first prong of the standing analysis. The Court finds that Dubois lacks standing to challenge the constitutionality of North Dakota's surety requirements as set forth in Section 32-12-02 of the North Dakota Century Code. This dispute is, at best, a hypothetical conflict that may easily be resolved short of the need to file a lawsuit in either state court or federal court. It is unclear why there was a need to pursue a lawsuit in federal court when there are a number of other less litigious alternatives available to address the perceived problem. The Defendant's Motion to Dismiss (Docket No. 5) is GRANTED. The Plaintiff's Motion for Summary Judgment and Injunction (Docket No. 6) is DENIED as moot.
IT IS SO ORDERED.