# Benham v. City of Charlotte

> District Court, W.D. North Carolina · March 16, 2021

URL: https://www.frixlaw.com/law-library/cases/10256849

## Case

- **Court:** District Court, W.D. North Carolina
- **Decided:** March 16, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10256849

## How later opinions describe it (automated extraction)

- finding representational standing and allowing nominal damages
- concluding recently that “a request for nominal damages satisfies the redressability element of standing where a plaintiff’s claim is based on a completed violation of a legal right”
- noting that when allocation of resources harms an organization to the extent of impeding its mission, it undoubtedly suffers an injury
- discussing the requirements for representational standing and noting that an award for compensatory damages requires participation of individual members in the lawsuit

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
CIVIL ACTION NO. 3:20-CV-00232-GCM
GLOBAL IMPACT MINISTRIES,
DAVID BENHAM,
CITIES4LIFE, INC.,

Plaintiffs,

v. ORDER

MECKLENBURG COUNTY,
CITY OF CHARLOTTE,

Defendants.

THIS MATTER comes before the Court upon Defendant Mecklenburg County’s Motion
to Dismiss (ECF Doc. 18) and Defendant City of Charlotte’s Motion to Dismiss for Lack of Subject
Matter Jurisdiction (ECF Doc. 20) (collectively, “Motions to Dismiss”). Now being fully briefed,
the Court finds the following.
I. BACKGROUND
Plaintiffs David Benham, Cities4Life, Inc. (“Cities4Life”), and Global Impact Ministries
(“Love Life”) filed this action after members of the Charlotte Mecklenburg Police Department
arrested or cited Plaintiff Benham, President of Cities4Life, and others from Cities4Life and Love
Life for advocating pro-life issues in contravention of a proclamation banning gatherings of ten or
more people. See ECF Doc. 1, ¶ 7–8. The arrests occurred under a Revised Joint Proclamation
(“Proclamation”) issued by the Mecklenburg County Board of Commissioners and the Mayor of
the City of Charlotte. Id. ¶ 8. The Proclamation was issued on March 24, 2020, and the incidents
leading to this Complaint largely occurred on April 4, 2020. See id. ¶¶ 83, 138. This action was
filed on April 18, 2020, and the Proclamation was rescinded on April 29, 2020. ECF Doc. 21 at
2. Plaintiffs’ Complaint requests a temporary restraining order, preliminary injunction, and
permanent injunction, as well as declaratory judgment as to the unconstitutionality of the
Proclamation and its application. ECF Doc. 1 at 45. The Complaint also requests compensatory
damages and nominal damages. Id. Defendants’ Motions to Dismiss followed on July 10, 2020.
Many of the issues raised in the Motions to Dismiss largely mirror each other and, although argued

separately, the Court considers the Motions conjunctively. Any additional relevant facts are
included in the discussion section herein.
II. DISCUSSION
Defendants argue numerous reasons for the Court to dismiss Plaintiffs’ complaint,
including mootness, standing, the Younger abstention doctrine, and failure to state a claim upon
which relief may be granted. This Court cannot proceed if it lacks subject matter jurisdiction, so
its analysis begins with the Rule 12(b)(1) motions.
When a Rule 12(b)(1) motion challenging subject matter jurisdiction is raised, the plaintiff
bears the burden of proof as to subject-matter jurisdiction. Richmond, Fredericksburg & Potomac

R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991). Where a defendant contends that a
complaint fails to allege sufficient facts upon which subject matter jurisdiction can be invoked,
“the facts alleged in the complaint are taken as true, and the motion must be denied if the complaint
alleges sufficient facts to invoke subject matter jurisdiction.” Kerns v. United States, 585 F.3d
187, 192 (4th Cir. 2009). Defendants do not argue the truth of the facts alleged in Plaintiffs’
complaint, so this standard of review applies to the Rule 12(b)(1) Motions to Dismiss.
A. Mootness
The Court must consider whether the issues raised in the Complaint are moot, given that
the Proclamation was rescinded on April 29, 2020. The Court’s jurisdiction is limited to that of
live cases and controversies. U.S. Const. art. III, § 2, cl. 1. Even if a claim was live when the
complaint was filed, a subsequent event could moot the claim. Catawba Riverkeeper Found. v.
N.C. Dep’t of Transp., 843 F.3d 583, 588 (4th Cir. 2016). The repeal or expiration of a statute
generally renders a claim for prospective relief moot. See Burke v. Barnes, 479 U.S. 361, 363
(1987); Diffenderfer v. Cent. Baptist Church of Miami, Inc., 404 U.S. 412, 414 (1972); Valero

Terrestrial Corp. v. Paige, 211 F.3d 112, 116 (4th Cir. 2000). In certain circumstances, a claim
could remain live if the defendant only voluntarily repealed a law. See Valero Terrestrial Corp.,
211 F.3d at 116. However, legal changes “that discontinue a challenged practice” are typically
enough to render a case moot, except in situations such as where the defendant openly indicates
intent to reenact an identical provision later. Id. Alternatively, sometimes a claim for prospective
relief remains live where the claim is “capable of repetition, yet evading review.” Davis v. Fed.
Election Comm., 554 U.S. 724, 735 (2008). Such exception applies if (1) the duration of the
challenged action is too short to be fully litigated prior to its cessation or expiration and (2) a
reasonable expectation exists that the same party will be subject to the same action again. Id.

Here, the Court finds that the exceptions to the general rule that repeal or expiration of a law
renders prospective claims for relief moot do not apply. Plaintiffs’ requests for prospective relief
are moot.
Next, the Court must address whether Plaintiffs’ requests for compensatory and nominal
damages leave a portion of this case live. In the Fourth Circuit, even where requests for
prospective relief are deemed moot, requests for monetary damages remain live. See, e.g., Mellen
v. Bunting, 327 F.3d 355, 365 (4th Cir. 2003). Thus, Plaintiffs’ monetary claims for relief are live.
However, Defendants argue Plaintiffs do not have standing to recover the damages they seek.
Thus, the Court will next examine the issue of standing.
B. Standing
Defendants argue Plaintiffs’ claims for damages are not the type to create standing, even if
Plaintiffs succeed on the merits. To have standing, a plaintiff must establish
(1) it has suffered an “injury in fact” that is (a) concrete and particularized and (b)
actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable
to the challenged action of the defendant; and (3) it is likely, as opposed to merely
speculative, that the injury will be redressed by a favorable decision.

Lane v. Holder, 703 F.3d 668, 671 (4th Cir. 2012) (quoting Friends of the Earth, Inc. v. Laidlaw
Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180–81 (2000)). As for an association or organization’s
standing, an organization may sue for injury to itself and to vindicate its own rights, and it may
also sue on behalf of its members. Warth v. Seldin, 422 U.S. 490, 511 (1975). “An organization
may suffer an injury in fact when a defendant’s actions impede its efforts to carry out its mission.”
Lane, 703 F.3d at 674; see also Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982) (noting
that when allocation of resources harms an organization to the extent of impeding its mission, it
undoubtedly suffers an injury). Additionally, to have representational standing, the association
must show that (1) “its members would otherwise have standing to sue in their own right”; (2) “the
interests it seeks to protect are germane to the organization’s purpose”; and (3) “neither the claim
asserted nor the relief requested requires the participation of individual members in the lawsuit.”
Hunt v. Wash. State Apple Advert. Comm., 432 U.S. 333, 343 (1977).
As to the compensatory damages claim, Defendants argue it is not enough to have
expended resources in preparation for a lawsuit or to claim injury when an organization has
decided to spend money educating its members or undertaking litigation. See Lane, 703 F.3d at
671; NAACP v. City of Kyle, 626 F.3d 233, 238 (5th Cir. 2010). Defendants argue that Plaintiffs
only allege bare and conclusory facts to support that their damages were necessitated by the
Proclamation and argue that the damages sought are not enough to support the requirements for
standing. Plaintiffs claim they “incurred costs as a result of the Proclamation and Defendants’
unlawful application of the Proclamation.” ECF Doc. 1, ¶ 144. The only example Plaintiffs plead
regarding compensatory damages relates to an attorney driving to Charlotte at the time of the
arrests. Id. ¶ 145. Yet, the Court deems that Plaintiffs have sufficiently alleged facts to support
standing on the compensatory damages claim at the pleadings stage, where the Plaintiffs claim the

Proclamation unconstitutionally inhibited them from advocating for their missions and they
expended resources due to the allegedly unconstitutional enforcement of the Proclamation.
Even if Plaintiffs had failed to adequately plead standing pursuant to the compensatory
damages claim, they also request nominal damages. The law recognizes a right to nominal
damages even without proof of actual injury. See Carey v. Piphus, 435 U.S. 247, 248 (1978); see
also Uquegbunam v. Preczewski, No. 19–968, slip op. at 11 (U.S. Mar. 8, 2021) (concluding
recently that “a request for nominal damages satisfies the redressability element of standing where
a plaintiff’s claim is based on a completed violation of a legal right”).
Moreover, looking beyond Plaintiffs’ own standing to sue, while an organization ordinarily

will not have representational standing to sue for damages on behalf of its injured members, that
rule does not necessarily apply where the organization is suing for nominal damages on its
members’ behalf. See Warth, 422 U.S. at 511, 515 (discussing the requirements for
representational standing and noting that an award for compensatory damages requires
participation of individual members in the lawsuit); Am. Humanist Ass’n v. Perry, 303 F. Supp. 3d
421, 427, 433 (E.D.N.C. 2018) (finding representational standing and allowing nominal damages);
see also Clark v. McDonald’s Corp., 213 F.R.D. 198, 212 (D.N.J. 2003) (acknowledging that
claims for compensatory damages ordinarily do not allow for representational standing but there
may be an exception “where an association seeks only nominal damages on behalf of its members
without reference to their individual circumstances”).
Here, Plaintiffs allege facts to support that that the constitutional rights of Plaintiff Benham,
an officer of Cities4Life, other members of Cities4Life, and members of Love Life have been
violated through arrests, citations, and threats of enforcement. Nevertheless, Defendants argue

that, because Plaintiffs explicitly do not seek damages resulting out of the arrests and/or citations
that occurred, they have not plead sufficient facts to support a claim to nominal damages. Plaintiffs
further allege facts supporting that the threats of enforcement forced Plaintiffs to refrain from
carrying out their missions through freedom of speech, freedom of religion, and freedom of
association. See, e.g., id. ¶¶ 169, 170, 190, 191, 219, 220. There are times when parties may be
entitled to nominal damages for past periods of chilling effects. See Abbott v. Pastides, 900 F.3d
160, 169 (4th Cir. 2018) (citing three other Fourth Circuit cases while acknowledging that past
chilling effects may amount to a cognizable First Amendment injury). Therefore, at the pleadings
stage, Plaintiffs have alleged facts to support that they may be entitled to recover nominal damages

for the Proclamation’s allegedly unconstitutional restriction on their First Amendment activities.
C. Younger Abstention Doctrine
Defendants next argue that, even if Plaintiffs have standing to sue for compensatory and
nominal damages, Plaintiffs’ claims for damages should be dismissed or stayed under the Younger
abstention doctrine. Absent a few extraordinary exceptions,1 the Younger abstention doctrine
recognizes that federal courts should avoid interfering with state proceedings where “(1) there is
an ongoing state judicial proceeding brought prior to substantial progress in the federal proceeding;
that (2) implicates important, substantial, or vital state interests; and (3) provides adequate

1 These exceptions are not discussed herein because the parties do not attempt to argue such exceptions are relevant.
opportunity to raise constitutional challenges.” Nivens v. Gilchrist, 444 F.3d 237, 241 (2006).
District courts have discretion in choosing to apply the Younger abstention doctrine. See id. at
242. Here, there are ongoing state criminal proceedings relating to the arrests or citations of
Plaintiff Benham and other members of Cities4Life and Love Life. These proceedings implicate
important state interests and provide an adequate opportunity for the parties in the state proceeding

to raise constitutional challenges. At first glance, the Younger abstention doctrine should apply.
Nevertheless, questions of whether to apply the Younger abstention doctrine arise when
organizations such as Cities4Life or Love Life are not parties to the ongoing state criminal
proceeding. Courts have acknowledged that derivative abstention is sometimes required, even for
federal parties not present in the state proceedings, if the federal parties have a substantial stake in
the outcome of the state proceeding or the federal parties’ interests are intertwined with the parties
in the state proceeding. See Hicks v. Miranda, 422 U.S. 332, 348 (1975); Cinema Blue of
Charlotte, Inc. v. Gilchrist, 887 F.2d 49, 53 (4th Cir. 1989); Lighthouse Fellowship Church v.
Northam, 462 F. Supp. 3d 635, 646–47 (E.D. Va. 2020). “[F]ederal courts must look to the

practical effect of granting the relief sought.” Colonial First Props., LLC v. Henrico Cnty. Va.,
166 F. Supp. 2d 1070, 1077–80 (E.D. Va. 2001) (citing Cinema Blue of Charlotte, Inc. while
explaining the derivative abstention doctrine under Younger); see also Am. Civil Liberties Union
v. Bozardt, 539 F.2d 340, 343 (4th Cir. 1976) (analyzing a case where the equitable relief sought
on behalf of all ACLU associates “would directly interfere with the pending state proceedings”
against one of its associates “and have the effect of circumventing the Younger restrictions”).
Clearly, allowing Plaintiff Benham’s federal claims to proceed would violate the Younger
abstention doctrine. Moreover, Cities4Life and Love Life share a close relationship and alignment
of interests with Plaintiff Benham and the state court proceedings. This Court cannot practically
consider Plaintiffs’ right to compensatory or nominal damages without undoubtedly interfering
with the criminal proceedings now pending before the state court regarding enforcement of the
rescinded Proclamation. The third parties’ interests are so intertwined with the state court
proceedings that the Court should exercise discretion in abstaining under Younger.
Nevertheless, the Court must still address whether it should dismiss or stay this case.

Typically, when a district court abstains based on Younger, it should dismiss the case. Nivens, 444
F.3d at 247. However, dismissal is not invariably required, and a stay is necessary where claims
for monetary damages are made that cannot be redressed in the state proceeding. Id. at 248;
Clowdis v. Silverman, 666 F. App’x 267, 270–71 (4th Cir. 2016). Plaintiffs’ claims for
compensatory and nominal damages cannot be redressed in the state proceeding. So, even while
the Court abstains under Younger, dismissal is not appropriate. The Court will stay this proceeding
pending the ultimate disposition of the state proceedings.
D. Mecklenburg County’s Rule 12(b)(6) Motion to Dismiss
Because a stay is necessary pursuant to Younger, the Court will not address Mecklenburg

County’s final argument regarding its Rule 12(b)(6) Motion to Dismiss, ECF Doc. 19 at 9–26,
which will be denied without prejudice pending the ultimate disposition of the underlying state
proceedings.
III. ORDER
IT IS THEREFORE ORDERED:
1. Defendant Mecklenburg County’s Motion to Dismiss (ECF Doc. 18) is GRANTED IN
PART AND DENIED IN PART, as indicated herein;
2. Defendant City of Charlotte’s Motion to Dismiss for Lack of Subject Matter Jurisdiction
(ECF Doc. 20) is GRANTED IN PART AND DENIED IN PART as indicated herein;
3. This matter is STAYED pending the resolution of the related state court proceedings;
4. The parties shall file a joint status report when the related state court proceedings are
ultimately terminated.
SO ORDERED.
Signed: March 16, 2021
Labor! Lae
Graham C. Mullen as
United States District Judge “gg

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10256849. Public record. Not legal advice.