MA LEG PARTNERS 1 v. City of Dallas

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

MA LEG PARTNERS 1, §

§

Plaintiff, §

§ Civil Action No. 3:19-CV-00219-X

v. §

§

CITY OF DALLAS, §

§

Defendant. §

§

§

MEMORANDUM OPINION AND ORDER

The City of Dallas regulates rental properties by requiring applications and

providing for inspections. When MA LEG Partners 1 (MA LEG) received a notice of

violation for failing to provide an application for a rental property, it sued challenging

the constitutionality of the ordinance under the First, Fourth, Fifth, Seventh, Eighth,

and Fourteenth Amendments and bringing a section 1983 claim, and seeking

declaratory and injunctive relief. The City filed a motion to dismiss for lack of

jurisdiction (Doc. No. 10) and a motion to dismiss for failure to state a claim (Doc. No.

8). The motions are fully briefed. For the reasons explained below, MA LEG lacks

standing and the Court lacks jurisdiction. The Court hereby GRANTS the City’s

motion to dismiss for lack of jurisdiction and DISMISSES WITHOUT PREJUDICE

MA LEG’s claims. The Court DISMISSES AS MOOT the City’s motion to dismiss

for failure to state a claim.

The City adopted an ordinance in 2016 that regulates rental properties.

Among other things, the ordinance requires rental property owners to complete an

application, attach an affidavit, and pay a registration fee. MA LEG alleges it

received a notice of violation in 2018 for failure to register. MA LEG responded by

filing suit to challenge the constitutionality of the ordinance.

II. Motion to Dismiss Standard

The City filed motions to dismiss both for lack of jurisdiction under Rule

12(b)(1) and failure to state a claim under Rule 12(b)(6). The City contends the Court

lacks jurisdiction because MA LEG lacks standing. Standing under Article III of the

Constitution is jurisdictional, such that the Court must address it before considering

the merits of a plaintiff’s claims.1 Unlike a 12(b)(6) motion, the Court is free to weigh

the evidence and satisfy itself as to the existence of its power to hear the case on a

Rule 12(b)(1) motion.2 A court must dismiss the case if it “lacks the statutory or

constitutional power to adjudicate the case.”3 And the burden is on the party who

seeks federal jurisdiction to clearly “allege facts demonstrating that [it] is a proper

party to invoke the judicial resolution of the dispute.”4

Standing requires that a plaintiff establish, for each claim, “(1) that the

plaintiff have suffered an ‘injury in fact—an invasion of a legally protected interest

1 Audler v. CBC Innovis Inc., 519 F.3d 239, 247–48 (5th Cir. 2008).

2 Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981).

3 Home Builders Ass’n of Miss., Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998) (quoting

Nowak v. Ironworkers Local 6 Pension Fund, 81 F.3d 1182, 1187 (2d Cir. 1996).

4 United States v. Hays, 515 U.S. 737, 743 (1995) (quoting Warth v. Seldin, 422 U.S. 490, 490 (1975))

(alteration added).

‘a causal connection between the injury and the conduct complained of’; and (3) that

the injury is likely to be redressed by a favorable decision.”5

Under Federal Rule of Civil Procedure 12(b)(6), the Court evaluates the

pleadings by “accepting as true the factual allegations in the complaint and drawing

all inferences in the plaintiff’s favor.”6 To survive a motion to dismiss, MA LEG must

allege enough facts “to state a claim to relief that is plausible on its face.”7 “A claim

has facial plausibility when the plaintiff pleads factual content that allows the court

to draw the reasonable inference that the defendant is liable for the misconduct

alleged.”8 “The plausibility standard is not akin to a ‘probability requirement,’ but it

asks for more than a sheer possibility that a defendant has acted unlawfully.”9

“[W]here the well-pleaded facts do not permit the court to infer more than the mere

possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’—‘that

the pleader is entitled to relief.’”10

III.

MA LEG brings nine enumerated claims and requests for declaratory and

injunctive relief. The City argues that MA LEG has suffered no injury and failed to

5 Fla. Dep’t of Ins. v. Chase Bank of Tex. Nat’l Ass’n, 274 F.3d 924, 929 (5th Cir. 2001) (quoting Lujan

v. Defenders of Wildlife, 504 U.S. 555, 560-561 (1992).

6 Biro v. Conde Nast, 807 F.3d 541, 544 (2d Cir. 2015) (citing DiFolco v. MSNBC Cable L.L.C., 622 F.3d

104, 110–11 (2d Cir. 2012)).

7 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).

8 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted).

9 Id.; see also Twombly, 550 U.S. at 545 (“Factual allegations must be enough to raise a right to relief

above the speculative level[.]”).

10 Iqbal, 556 U.S. at 679 (quoting Fed. R. Civ. P. Rule 8(a)(2)).

turn.

A. Standing

The City argues that because MA LEG has only received a notice of violation,

it lacks a concrete and particularized injury sufficient to sue. The Court disagrees.

As the Supreme Court explained in Babbitt v. United Farm Works Nat’l Union,

A plaintiff who challenges a statute must demonstrate a realistic danger

of sustaining a direct injury as a result of the statute’s operation or

enforcement. But one does not have to await the consummation of

threatened injury to obtain preventive relief. If the injury is certainly

impending that is enough.11

If the City were right, pre-enforcement challenges to the constitutionality of statutes

and ordinances could never occur. But they often do. In fact, the City has brought

such actions against Texas to attempt to enjoin state law before it took effect.12 And

those actions seek injunctive relief to prevent future constitutional violations, not just

damages for past violations. MA LEG has done likewise here. And the City has not

indicated in briefing or the hearing that it will not enforce the ordinance against MA

LEG (and the notice of violation indicates the opposite). The Court disagrees with

the City’s global assertion of lack of standing and jurisdiction in this posture where

the first step of enforcement as to the plaintiff has begun. But the Court must assess

standing count by count, so that is not the end of the matter.

11 442 U.S. 289, 298 (1979).

12 See City of El Cenizo v. State, 264 F. Supp. 3d 744, 755 (W.D. Tex. 2017) (ruling on pre-enforcement

preliminary injunction motion from City of Dallas), aff’d in part, vacated in part sub nom. City of El

Cenizo, Texas v. Texas, 885 F.3d 332 (5th Cir. 2018), withdrawn from bound volume, opinion

withdrawn and superseded, 890 F.3d 164 (5th Cir. 2018), and aff'd in part, vacated in part sub nom.

City of El Cenizo, Texas v. Texas, 890 F.3d 164 (5th Cir. 2018).

B. Count One: Reasonable Expectation of Privacy

MA LEG complains that Chapter 27’s application process requires the

disclosure of the following information it believes to be constitutionally protected from

disclosure:

(i) Contact information for the holder of any deed of trust or

mortgage lien on the property, sec. 27-32(a)(1)(D);

(ii) Contact information for the property owner’s casualty insurance

carrier, sec. 27-32(a)(1)(E);

(iii) “the name and mailing address for each principal officer, director,

general partner, trustee, manager, member, or other person

charged with the operation, control, or management of the entity,”

sec. 27-32(a)(3);

(iv) “the location of business records pertaining to the rental

property,” sec. 27-32(a)(4);

(v) “a copy of the owner’s current driver’s license or other

government-issued personal identification card containing a

photograph of the owner, if the owner is a natural person,” sec.

27-32(a)(5); and

(vi) “a list of businesses . . . operating out of the property and offering

goods or services to persons residing at or visiting the property,”

sec. 27-32(a)(6). (Doc. No. 1 at 27).

MA LEG’s first count contends its expectation of privacy in this information is

protected by the Fourth and Fourteenth Amendments. The City argues, among other

things, that MA LEG lacks standing because it has no reasonable expectation of

privacy in the information the application calls for.

The Court agrees with the City that MA LEG lacks a reasonable expectation of

privacy in the requested records.13 Items (i) (relating to deed holders and mortgage

13 While the City frames this as both a standing issue and a merits issue, it goes to standing. See

Williams v. Kunze, 806 F.2d 594, 599 (5th Cir. 1986) (“Unless the shareholder, officer or employee can

demonstrate a legitimate and reasonable expectation of privacy in the records seized, he lacks standing

to challenge the search and seizure.”).

property) concern records of other individuals. One generally does not have standing

to assert Fourth Amendment rights of others but only has standing to assert their

personal stake if the rights of others affect them.14 MA LEG contends that its

personal stake is that information such as deed holders, insurance carriers, and

businesses are the types of sensitive business information MA LEG takes steps to

keep private. The Court holds that, while MA LEG may have a personal stake in

these types of information, other government regulatory frameworks require its

disclosure, thus destroying any reasonable expectation of privacy. And caselaw

regarding business entities indicates there is no reasonable expectation of privacy in

information regarding a business operating at a rental property.

Regarding contact information of deed holders and mortgage holders, section

214.001 of the Texas Local Government Code requires the City in various

circumstances to inform lienholders and mortgagees of violations of ordinances

concerning substandard buildings. And MA LEG conceded at oral argument that the

City would have an interest in notifying mortgage holders and deed holders of City

violations because of the potential for the City to abate a nuisance at the property and

destroy the holder’s financial stake before they had notice to fix the problems.

Information regarding the holder of the deed or mortgage is necessary for the City to

perform that function and already required by state law. Regarding insurance, the

14 “As a general rule, ‘Fourth Amendment rights are personal[,]’ and ‘may not be vicariously asserted.’”

United States v. Escamilla, 852 F.3d 474, 485 (5th Cir. 2017) (quoting Alderman v. United States, 394

U.S. 165, 174 (1969)); City of El Cenizo, Texas v. Texas, 890 F.3d 164, 186 (5th Cir. 2018) (holding that

officials must have a sufficient “personal stake” regarding the impact of a challenged law on third

parties in order to have standing to challenge the law).

addition, Texas rules of procedure already require the disclosure of such insurance

information if there is pending litigation.16 It should also be noted that the ordinance

only requests the contact information of MA LEG’s casualty insurance carrier and not

any detailed information like policy limits or the scope of overage.

Regarding businesses operating at the rental property, business information

can often be in the public domain, such that there is no reasonable expectation of

privacy.17 For example, courts have concluded there is no reasonable expectation of

privacy in a public store.18 To the extent MA LEG contends the disclosure of the name

of the business itself is so secretive that it has not been disclosed and the public is not

entitled to know the name, MA LEG has not made a sufficient showing to meet its

burden of proof19 as to its reasonable expectation of privacy that confers jurisdiction

on the Court. Therefore, MA LEG cannot assert a reasonable expectation of privacy

in the information of a deed holder, mortgage holder, insurer, or business operating

15 United States v. Zavala, 541 F.3d 562, 577 (5th Cir. 2008).

16 Texas Rule of Civil Procedure 192.3(f) provides:

Except as otherwise provided by law, a party may obtain discovery of the existence and

contents of any indemnity or insurance agreement under which any person may be liable to

satisfy part or all of a judgment rendered in the action or to indemnify or reimburse for

payments made to satisfy the judgment. Information concerning the indemnity or insurance

agreement is not by reason of disclosure admissible in evidence at trial.

17 Katz v. United States, 389 U.S. 347, 351 (1967) (“What a person knowingly exposes to the public,

even in his own home or office, is not a subject of Fourth Amendment protection.”).

18 See Maryland v. Macon, 472 U.S. 463, 469 (1985) (finding that there is no reasonable expectation of

privacy in areas of a business where the public is invited to enter and to transact business); United

States v. Watson, 244 F. App’x 484, 488 (3d Cir. 2007) (finding no expectation of privacy identified in

warrantless entry of public store).

19 While this case is on a motion to dismiss, it is a motion to dismiss for lack of jurisdiction. That

procedural rule requires the Court to, if necessary, resolve disputed jurisdictional facts to determine

as a matter of law if the Court has the power to hear the case. MA LEG has not brought forth evidence

to bolster its conclusory allegation that this information is not public.

Item (iii) involves the officers and directors of the entity controlling the

property and their business address. But this information is largely publicly

available, as MA LEG admits in briefing. And this admission is logical. When

forming an LLC, as MA LEG did here, Texas law requires on the registration forms

the disclosure of the members of the LLC.20 The Texas application for registering an

LLC likewise contains information for the LLC members (referred to as “governing

persons”).21 MA LEG complied with that request when forming its LLC, and this

member information is publicly available on websites of the Texas Secretary of State

and Comptroller. As a result, there is no constitutionally protected privacy interest

in information such as this that is in the public domain.22

Item (iv) involves the location of business records pertaining to the property.

MA LEG cites to an out-of-district opinion in Gem Financial Services v. City of New

York, holding that “[u]nder Katz, this property-based expectation of privacy extends

to ‘private’ business records containing ‘the kind of commercially sensitive

20 See TEX. BUS. ORGS. CODE § 101.103(a) (“In connection with the formation of a company, a person

becomes a member of the company on the date the company is formed if the person is named as an

initial member in the company's certificate of formation.”). To the extent MA LEG is claiming there

are new members to the LLC not disclosed in public filings, MA LEG has failed to make such

allegations sufficient to invoke the Court’s jurisdiction as to this claim. Hays, 515 U.S. 743.

21 Texas Secretary of State, Certificate of Formation—Limited Liability Company, Form 205, at

https://www.sos.state.tx.us/corp/forms/205_boc.pdf (last visited Mar. 4, 2020).

22 See Maryland v. Macon, 472 U.S. 463, 469 (1985) (finding that there is no reasonable expectation of

privacy in areas of a business where the public is invited to enter and to transact business); United

States v. Watson, 244 F. App'x 484, 488 (3d Cir. 2007) (finding no expectation of privacy identified in

warrantless entry of public store); Stamm v. Cty. of Cheyenne, 326 F. Supp. 3d 832, 849 (D. Neb. 2018)

(“Certainly, there is no question that an individual cannot expect to have a constitutionally protected

privacy interest in matters of public record.”) (quoting Phillips v. Bailey, 337 F. Supp. 2d 804, 806

(W.D. Va. 2004)).

Gem Financial went on to recognize that business records held pursuant to a

government regulatory framework have no reasonable expectation of privacy.24 And

the language MA LEG quotes from only relates to commercially sensitive information

(such as trade secrets), and MA LEG makes no case that the location of where records

are kept is commercially sensitive. For example, disclosing that the Coca Cola

recipe25 is kept at 1 Coca Cola Plaza NW Atlanta, GA 30313 is not the same as

disclosing the actual recipe.

Item (v) requests the official recording information for the owner’s deed and

any other instruments evidencing ownership of the rental property being registered.

While MA LEG admits that the “‘official recording information’ . . . presumably refers

to matters of public record,” it alleges “‘any other instruments evidencing ownership

of the rental property’ may not be, and need not be public.”26 But this vague

statement is insufficient to allege a concrete injury required for standing.

MA LEG raised Fourteenth Amendment privacy interests with respect to the

same information requests. But when the City briefed the issue and explained MA

23 298 F.Supp.3d 464, 479–80 (E.D.N.Y. 2018) (quoting Patel v. City of Los Angeles, 738 F.3d 1058,

1062 (9th Cir. 2013), aff'd sub nom. City of Los Angeles, Calif. v. Patel, 135 S. Ct. 2443 (2015).

24 Id. at 480. See also Donovan v. Mehlenbacher, 652 F.2d 228, 231 (2d Cir. 1981) (holding that “records

required to be kept pursuant to valid regulatory programs have a ‘public aspect’ for purposes of

constitutional analysis, and thus are not private papers entitled to the protection of the [F]ourth or

[F]ifth amendments”).

25 The Court is referring to the recipe for Coca Cola classic. The recipe for Coca Cola II (also known as

New Coke) introduced in 1985 largely proved to be a disaster. No one but Stranger Things fans seek

to resurrect it.

26 MA LEG’s Response to City of Dallas’s Motion to Dismiss for Lack of Subject Matter Jurisdiction at

p.10 (quoting DALLAS, TEX., CITY OF DALLAS, TEX. CODE OF ORDINANCES ch. 27, art. VII, § 27-32(a)(5))

[Doc. No. 15].

(Doc. No. 11 at 11), MA LEG never responded with a Fourteenth Amendment privacy

argument (Doc. No. 15). However, based on representations made by MA LEG’s

counsel in the hearing held before this Court on March 3, 2020, the Court construes

MA LEG’s Fourth Amendment arguments as also raising a Fourteenth Amendment

privacy claim under the penumbras and emanations of the due process clause as to

these records. The same arguments above regarding the Fourteenth Amendment also

explain why MA LEG does not have a reasonable expectation of privacy under the

Fourteenth Amendment to these records. Accordingly, MA LEG has not shown a

concrete injury with respect to a Fourteenth Amendment privacy interest.27

C. Count One: Compelled Speech

MA LEG’s First Amendment argument in Count One is that the required

submission of information is unconstitutional compelled speech. It relies on

Associated Builders and Contractors of Southeast Texas v. Rung, where the court held

unconstitutional federal labor regulations requiring federal contractors and

subcontractors to report for public disclosure alleged violations of federal labor laws.28

The court found “[t]he Executive Order’s unprecedented requirement . . . compels

contractors to engage in public speech on matters of considerable controversy

adversely affecting their public reputations and thereby infringing on the contractors’

rights under the First Amendment.”29 Here, the requested information is not for

27 The City also argued that the application is not a “search” within the meaning of the Fourteenth

Amendment. Because the Court finds no reasonable expectation of privacy to the requested

information, it need not determine whether the application is a search.

28 No. 1:16-CV-425, 2016 WL 8188655, at *8 (E.D. Tex. Oct. 24, 2016).

29 Id.

political, ideological, or religious speech. If the City cannot require applications in

this context because of the prohibition on compelled speech, it is difficult to see how

any government could have a regulatory system that requires applications.

D. Count One: Unconstitutional Conditions

The Unconstitutional Conditions Doctrine forbids burdening the Constitution’s

enumerated rights by coercively withholding benefits from those who exercise them.30

MA LEG contends in Count One31 that the City’s application requirement, affidavit,

and self-inspection forms violate the Unconstitutional Conditions Doctrine by

requiring the owner to submit the required information to engage in leasing private

property. But MA LEG must show that the City conditioned a benefit on MA LEG

waiving its constitutional rights. The Court has held that there is no constitutional

protection here (or, more precisely, that MA LEG has failed to make such a showing).

As a result, there is no unconstitutional condition defect that MA LEG has standing

to sue over.

E. Count One: Equal Protection

MA LEG’s final argument under Count One is that the following in the

ordinance violate the Equal Protection Clause of the Fourteenth Amendment: (1) the

requirement to register and apply; (2) inequitable code enforcement policies and

practices; and (3) the City director having unilateral authority to require information

30 Koontz v. St. Johns River Water Mgmt. Dist., 570 U.S. 595, 606 (2013).

31 MA LEG also made this contention in Count Two, which involved an argument that Chapter 27

violated the Fifth and Fourteenth Amendment rights against self incrimination. But MA LEG

withdrew that count in its response to the City’s motion to dismiss for lack of standing.

[T]o show Article III standing for constitutionally-protected equal

protection claims, a plaintiff must allege that (1) there exists a

reasonable likelihood that the plaintiff is in the disadvantaged group, (2)

there exists a government-erected barrier, and (3) the barrier causes

members of one group to be treated differently from members of the

other group.32

But MA LEG’s complaint never claims the company is in a disadvantaged

group or that another similarly situated group was treated differently. As a result,

MA LEG has not shown an imminent, concrete injury that is actionable under the

Equal Protection Clause. Overall on Count One, because MA LEG has not shown a

Fourth or Fourteenth Amendment privacy interest or standing under compelled

speech, unconstitutional conditions, or the Equal Protection Clause, the Court lacks

jurisdiction over Count One. The Court GRANTS the City’s motion to dismiss for

lack of jurisdiction as to Count One and DISMISSES WITHOUT PREJUDICE the

claim.

F. Counts Three Through Eight

Counts Three through Eight also suffer from a lack of standing. In Count

Three, MA LEG alleges that Chapter 27 requires that the owner to submit with

registration of a single dwelling unit “any additional information . . . that the director

deems necessary.”33 But MA LEG never alleges the City requested additional

information beyond what the application and affidavit require. As a result, MA LEG

has not alleged an imminent, concrete injury with respect to Count Three. The Court

32 Comer v. Cisneros, 37 F.3d 775, 793 (2d Cir. 1994).

33 MA LEG’s Complaint ¶90 (quoting DALLAS, TEX., CITY OF DALLAS, TEX. CODE OF ORDINANCES ch. 27,

art. VII, § 27-32(a)(8)) [Doc. No. 1].

DISMISSES WITHOUT PREJUDICE the claim.

In Count Four, MA LEG contends that the City’s requirements regarding

rental property business records violate its constitutional rights. But MA LEG never

pled that it received a notice of violation or citation for violations of these provisions.

As a result, MA LEG has not alleged an imminent, concrete injury with respect to

Count Four. The Court GRANTS the City’s motion to dismiss for lack of jurisdiction

as to Count Four and DISMISSES WITHOUT PREJUDICE the claim.

Count Five alleges “the City’s inconsistent interpretation and application of

Chapter 27’s minimum property standards results in in erratic and ineffective

communications with, and inequitable fines and penalties imposed upon, property

owners in violation of their Fifth and Fourteenth Amendments rights to due process

and equal protection.”34 Specifically, MA LEG warns about the harm that could arise

from repeated inspections on a property by different inspectors. But this is

speculative. Indeed, MA LEG never pled that it suffered from disparate treatment

under the hands of different inspectors (or received a fine, penalty, or inspection at

all). As a result, MA LEG has not alleged an imminent, concrete injury with respect

to Count Five. The Court GRANTS the City’s motion to dismiss for lack of

jurisdiction as to Count Five and DISMISSES WITHOUT PREJUDICE the claim.

Count Six alleges that Chapter 27 lacks sufficient procedural substance

regarding notice to and participation by the property owner in the warrant issuance

34 MA LEG’s Complaint ¶96 [Doc. No. 1].

issuance process or that the City even sought a warrant against it. As a result, MA

LEG has not alleged an imminent, concrete injury with respect to Count Six. The

Court GRANTS the City’s motion to dismiss for lack of jurisdiction as to Count Six

and DISMISSES WITHOUT PREJUDICE the claim.

In Count Seven, MA LEG alleged the City’s imposition of fines allowed is

unconstitutional. But MA LEG never pled that it received notice of a fine, a demand

for payment, or a citation from the City. As a result, MA LEG has not alleged an

imminent, concrete injury with respect to Count Seven. The Court GRANTS the

City’s motion to dismiss for lack of jurisdiction as to Count Seven and DISMISSES

WITHOUT PREJUDICE the claim.

In Count Eight, MA LEG complains about depriving an owner of a jury trial.

But MA LEG has not pled that it is facing an enforcement action, such that a non-

jury trial is imminent. As a result, MA LEG has not alleged an imminent, concrete

injury with respect to Count Eight.35 The Court GRANTS the City’s motion to

dismiss for lack of jurisdiction as to Count Eight and DISMISSES WITHOUT

PREJUDICE the claim.36

G. 1983 Claim

Ma LEG’s final enumerated claim is under 42 U.S.C. § 1983 for deprivation of

35 “Allegations of possible future injury do not satisfy the requirements of Art. III.” Whitmore v.

Arkansas, 495 U.S. 149, 158 (1990).

36 The City also argues that a case that MA LEG attached to a response was a state court proceeding

involving a constitutional challenge to the ordinance and triggers Younger abstention. But because

the Court holds that MA LEG lacks standing for any of its claims and has no power to hear the case,

the Court need not reach the abstention argument.

freestanding guarantee of substantive rights. It is a procedural enforcement that

safeguards rights granted under the Constitution or substantive federal law. As MA

LEG lacks standing for any of its constitutional arguments, there can be no standing

for a section 1983 claim. As a result, the Court GRANTS the City’s motion to dismiss

for lack of jurisdiction as to Count Nine and DISMISSES WITHOUT PREJUDICE

the claim.

H. Declaratory Judgment

MA LEG also requests the Court to declare the ordinance unconstitutional

based on the arguments in its enumerated counts. The City argues that the federal

Declaratory Judgment Act, like section 1983, creates no substantive rights and must

be dismissed because MA LEG has no viable underlying claim. While this is a correct

legal assertion, the City misses the point that the Declaratory Judgment Act does not

waive sovereign immunity.37 As a result, the Court GRANTS the City’s motion to

dismiss for lack of jurisdiction as to the request for declaratory relief and

DISMISSES WITHOUT PREJUDICE the claim.

IV. Conclusion

For these reasons, the Court GRANTS the City’s motion to dismiss for lack of

jurisdiction and DISMISSES WITHOUT PREJUDICE MA LEG’s complaint.

Because the Court lacks jurisdiction over the action, the Court DISMISSES AS

37 See, e.g., Okpalobi v. Foster, 244 F.3d 405, 432 (5th Cir. 2001) (Higginbotham, J., concurring)

(“Congress did not and could not have created a generic exception to the Eleventh Amendment for

declaratory relief.”); Texas v. Ysleta del Sur Pueblo, No. EP-17-CV-179-PRM, 2018 WL 7288032, at *12

(W.D. Tex. Aug. 27, 2018) (holding that the federal Declaratory Judgment Act is not a waiver of

sovereign immunity).

MOOT the City’s motion to dismiss for failure to state a claim.?8

IT IS SO ORDERED this 4th day of March, 2020.

BRANTLE 4 ARR

UNITED STATES DISTRICT JUDGE

38 Under § 205(a)(5) of the E-Government Act of 2002 and the definition of “written opinion” adopted

by the Judicial Conference of the United States, this is a “written opinion|] issued by the court” because

it “sets forth a reasoned explanation for [the] court’s decision.” It has been written, however, primarily

for the parties, to decide issues presented in this case, and not for publication in an official reporter,

and should be understood accordingly.

16