Southern Walk at Broadlands Homeowner's Ass'n v. OpenBand at Broadlands, LLC

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

SOUTHERN WALK AT BROADLANDS 

HOMEOWNER’S ASSOCIATION, INC.,

Plaintiff-Appellant,

v.  No. 12-1331

OPENBAND AT BROADLANDS, LLC,

Defendant-Appellee.



SOUTHERN WALK AT BROADLANDS 

HOMEOWNER’S ASSOCIATION, INC.,

Plaintiff-Appellee,

v.  No. 12-2083

OPENBAND AT BROADLANDS, LLC,

Defendant-Appellant.



Appeals from the United States District Court

for the Eastern District of Virginia, at Alexandria.

Gerald Bruce Lee, District Judge.

(1:11-cv-00517-GBL-TCB)

Argued: January 29, 2013

Decided: April 5, 2013

Before WILKINSON, MOTZ, and THACKER,

Circuit Judges.

2 SOUTHERN WALK v. OPENBAND

No. 12-1331 affirmed in part and vacated and remanded in

part; No. 12-2083 affirmed by published opinion. Judge Motz

wrote the opinion, in which Judge Wilkinson and Judge

Thacker joined.

COUNSEL

ARGUED: Kurt Charles Rommel, MILES & STOCK-

BRIDGE, McLean, Virginia, for Appellant/Cross-Appellee.

Sanford M. Saunders, Jr., GREENBERG TRAURIG, LLP,

Washington, D.C., for Appellee/Cross-Appellant. ON

BRIEF: Harvey B. Cohen, Christopher E. Brown, MILES &

STOCKBRIDGE, McLean, Virginia; Constance J. Miller,

CONSTANCE J. MILLER, ESQ., McLean, Virginia, for

Appellant/Cross-Appellee. Laura Metcoff Klaus, GREEN-

BERG TRAURIG, LLP, Washington, D.C., for

Appellee/Cross-Appellant.

OPINION

DIANA GRIBBON MOTZ, Circuit Judge:

Southern Walk at Broadlands Homeowners Association

brought this action seeking a declaratory judgment against

OpenBand at Broadlands, the corporation with which it had

contracted in 2001 for wire-based video services. Southern

Walk alleges that the 2007 Exclusivity Order issued by the

Federal Communications Commission renders "null and void"

OpenBand’s exclusive rights under the 2001 contracts to pro-

vide such wire-based video services to Southern Walk home-

owners. In these cross appeals, Southern Walk challenges the

district court’s dismissal of its action with prejudice, and

OpenBand challenges the court’s refusal to award it attorneys’

fees. For the reasons that follow, we affirm the judgment of

the district court to the extent it held that Southern Walk

SOUTHERN WALK v. OPENBAND 3

failed to allege facts supporting standing in this case, but

vacate that judgment to the extent it dismissed the case with

prejudice, and remand with instructions to dismiss without

prejudice. We affirm the court’s denial of attorneys’ fees to

OpenBand.

I.

A.

Southern Walk at Broadlands (the "community") is a

planned residential development consisting of over 1100 indi-

vidually owned properties. In 2001, the developer of the com-

munity, Broadlands Associates, incorporated Southern Walk

at Broadlands Homeowners Association, Inc. ("Southern

Walk") as a Virginia non-stock corporation. Southern Walk’s

articles of incorporation state that its purposes are to "assure

maintenance, preservation and architectural control" of, and

"provide, or cause to provide for, the installation and mainte-

nance of an exclusive private utility system" within, the com-

munity.

In November 2001, shortly after being incorporated, South-

ern Walk executed a Telecommunications Services Agree-

ment ("TSA") with OpenBand for the provision of certain

"platform" telephone, internet, and video services for the

community’s member households.1 The TSA requires that

each household in the community purchase platform services

from OpenBand, regardless of whether the household actually

uses the services. Households pay for OpenBand’s services

through their homeowners’ association assessments. If any

household defaults on its assessments, Southern Walk must

pay OpenBand for the services. The TSA allows individual

1

The TSA defines "platform" services as "Telephone Services, Internet

Services and Video Services for which residents pay as a part of their

required [homeowners’ association] fee." Platform services are distinct

from premium services, which are provided "on an elective basis."

4 SOUTHERN WALK v. OPENBAND

households to obtain additional (but not replacement) plat-

form services from alternative providers. However, Southern

Walk itself may "not engage any other provider of Platform

Services" for the community.

Also in November 2001, Broadlands Communications—a

Broadlands Associates subsidiary—conveyed to OpenBand

an "Easement[ ] for the Exclusive Provision of Telecommuni-

cations Services for Southern Walk at Broadlands." This per-

petual easement grants OpenBand "the exclusive right to

Operate Utilities on, under and across [the community] such

that, no other person or entity other than [OpenBand] . . . shall

be entitled to Operate any Utilities on, under or across [the

community] without the written consent of [OpenBand]."

"Utilities" include both above- and below-ground infrastruc-

ture "necessary for the collection, provision, distribution and

transmission of video, telephonic, [and] internet . . . services."

As further protection for OpenBand’s exclusive right,

Broadlands Communications, Broadlands Associates, and

Broadlands Association, Inc., all covenanted that "they shall

not grant any easement other than [this] Easement to Operate

any Utilities on, under or across" the community. Southern

Walk itself covenanted that it "shall not take any action incon-

sistent with the terms of this Easement Deed and the rights

herein granted." OpenBand, however, retained the ability to

transfer or assign its rights and grant sub-easements. Soon

thereafter, OpenBand began providing platform services to

Southern Walk’s member households pursuant to the TSA

and its easement; OpenBand remains the only provider of

platform services for Southern Walk’s member households

today.

B.

In 2007, nearly seven years after the execution of the TSA

and the easement, the FCC issued the Exclusivity Order. See

In the Matter of Exclusive Service Contracts for Provision of

SOUTHERN WALK v. OPENBAND 5

Video Services in Multiple Dwelling Units and Other Real

Estate Developments, 22 FCC Rcd. 20235 (2007). The Exclu-

sivity Order addresses "the need to regulate contracts contain-

ing clauses granting one multichannel video programming

distributor . . . exclusive access for the provision of video ser-

vices (‘exclusivity clauses’) to multiple dwelling units . . . and

other real estate developments." Id. ¶ 1.

Of particular concern to the FCC were contractual clauses

between multiple dwelling unit or real estate development

owners and wire-based cable television providers that "pro-

hibit any other [provider] from any access whatsoever to the

premises of the [multiple dwelling unit] building or real estate

development." Id. ¶ 1 n.2. The FCC found that "contractual

agreements granting such exclusivity . . . harm competition

and broadband deployment and that any benefits to consumers

are outweighed by the harms of such clauses." Id. at ¶ 1. Lack

of choice for consumers, stagnation in innovation and services

due to lack of competition, and the inefficient use of existing

telecommunications infrastructure topped the list of harms the

FCC identified. Id. ¶¶ 17-23.

As a result of its findings, and pursuant to its authority

under 47 U.S.C. § 548, the FCC ordered that

no cable operator . . . shall enforce or execute any

provision in a contract that grants it the exclusive

right to provide any video programming service

(alone or in combination with other services) to a

[multiple dwelling unit]. Any such exclusivity clause

shall be null and void.

Id. ¶ 31 (codified at 47 C.F.R. § 76.2000). For the purposes

of the order, a "multiple dwelling unit" includes "centrally

managed residential real estate developments." Id. ¶ 7. The

District of Columbia Circuit upheld the Exclusivity Order in

2009. See Nat’l Cable & Telecomm. Ass’n v. FCC, 567 F.3d

659, 661 (D.C. Cir. 2009).

6 SOUTHERN WALK v. OPENBAND

After publication of the Exclusivity Order, Southern Walk

began exploring opportunities "to allow other Loudoun

County franchisees of cable [television] to have access to the

Southern Walk at Broadlands community" and thereby pro-

vide its member households expanded choices in wire-based

video services. On October 5, 2010, Southern Walk wrote a

letter to OpenBand stating its belief that the TSA and ease-

ments created an "overall scheme" of wire-based video ser-

vice exclusivity that violates the Exclusivity Order. Southern

Walk requested modifications to the terms of both the TSA

and the easements, but OpenBand’s representatives insisted

that OpenBand would enforce both "as is."

Southern Walk then attempted to negotiate with competing

wire-based video service providers for its member house-

holds. These providers, however, refused their services,

explaining that provisions in the TSA and easement prevented

their access to the community. Verizon explained that it could

not provide FiOS services to the community "because of

[Southern Walk’s] exclusive agreement & access [easement]

with OpenBand Communications." Similarly, Comcast

informed Southern Walk that it could not provide wire-based

video services to its member households "because of Open-

Band’s exclusive easements."

C.

On May 13, 2011, Southern Walk filed this action against

OpenBand seeking a declaration that the exclusivity provi-

sions in the TSA, easement, and other ancillary agreements

are illegal and unenforceable under the Exclusivity Order and

state law. A few months later, Southern Walk amended the

complaint to allege that the TSA and easement combine to

create an "overall scheme" giving "OpenBand exclusive

access to the [community] and have had the effect of actually

precluding any other wire-based video provider from gaining

access to the [community]," in violation of the Exclusivity

Order.

SOUTHERN WALK v. OPENBAND 7

OpenBand moved to dismiss the amended complaint. The

district court granted the motion and dismissed the case with

prejudice. The court held that Southern Walk lacked standing

to bring any federal claim, and that, even if it had standing,

the Exclusivity Order did not support the declaratory relief

sought. The court also declined to exercise supplemental

jurisdiction over the state law claims, and denied Southern

Walk’s motion for leave to amend its complaint a second

time.

OpenBand later moved for attorneys’ fees pursuant to the

fee-shifting provision in the TSA. While that motion was

pending, Southern Walk timely appealed the dismissal of its

action for declaratory judgment under the Exclusivity Order.

The district court subsequently denied OpenBand’s motion

for attorneys’ fees, and OpenBand timely appealed that

denial. We consolidated the two cases on appeal.

II.

We review a district court’s dismissal for lack of standing

de novo. White Tail Park, Inc. v. Stroube, 413 F.3d 451, 459

(4th Cir. 2005). Plaintiffs bear the burden of establishing

standing. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561

(1992).

"When standing is challenged on the pleadings, we accept

as true all material allegations of the complaint and construe

the complaint in favor of the complaining party." David v.

Alphin, 704 F.3d 327, 333 (4th Cir. 2013). However, we need

not accept factual allegations "that constitute nothing more

than ‘legal conclusions’ or ‘naked assertions.’" Id. (quoting

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). Moreover, we

are "powerless to create [our] own jurisdiction by embellish-

ing otherwise deficient allegations of standing." Whitmore v.

Arkansas, 495 U.S. 149, 155-56 (1990).

When addressing the appropriateness of dismissal for lack

of standing, we consider exhibits attached to the complaint in

8 SOUTHERN WALK v. OPENBAND

addition to the complaint itself. Fed. R. Civ. P. 10(c); Katyle

v. Penn Nat’l Gaming, Inc., 637 F.3d 462, 466 (4th Cir.

2011). "[I]n the event of conflict between the bare allegations

of the complaint and any exhibit attached [to the complaint,]

. . . the exhibit prevails." Fayetteville Investors v. Commercial

Builders, Inc., 936 F.2d 1462, 1465 (4th Cir. 1991).

An organization like Southern Walk can assert standing

either in its own right or as a representative of its members.

Md. Highways Contractors Ass’n, Inc. v. Maryland, 933 F.2d

1246, 1250 (4th Cir. 1991). Southern Walk claims both types

of standing here, and we consider each in turn.

A.

An organization claiming standing in its own right must

adequately allege that "(1) it has suffered an ‘injury in fact’

that is (a) concrete and particularized and (b) actual or immi-

nent, 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." Friends of the Earth,

Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-

81 (2000).

Southern Walk first argues that it has standing in its own

right because it is a party to many of the contracts that

together set forth OpenBand’s exclusivity rights. Although a

party to a contract containing allegedly illegal provisions

often will have standing to challenge that contract, simply

being a party to the contract does not alone establish Article

III standing. An organizational plaintiff must still demonstrate

personal harm both traceable to the challenged provisions and

redressable by a federal court.

Southern Walk contends that it is harmed personally by the

TSA requirement that it pay for all platform services from

OpenBand for which its member households fail to pay. How-

SOUTHERN WALK v. OPENBAND 9

ever, any economic injury to Southern Walk due to this provi-

sion of the TSA is non-redressable.2 This is so because

regardless of the challenged exclusivity arrangement, it is the

bulk billing provisions in the TSA that require this payment.

The "bulk billing arrangement" is a legally permissible

arrangement "in which one [video service provider] provides

video service to every resident of a[ ] [multiple dwelling unit

development], usually at a significant discount from the retail

rate that each resident would pay if he or she contracted with

the [provider] individually." In the Matter of Exclusive Ser-

vice Contracts for Provision of Video Services in Multiple

Dwelling Units and Other Real Estate Developments, 25 FCC

Rcd. 2460, 2461 (2010).

Southern Walk does not challenge the bulk billing arrange-

ment and so it would be unaffected by any favorable declara-

tion nullifying OpenBand’s contractual exclusivity rights. In

effect, Southern Walk, as it admitted at oral argument, must

pay for OpenBand’s services regardless of the outcome of

this action. Therefore, its asserted injury, though concrete and

actual, is simply not redressable in this action. See Comite de

Apoyo a los Trabajadores Agricolas (CATA) v. U.S. Dep’t of

Labor, 995 F.2d 510, 513 (4th Cir. 1993) ("By itself, a declar-

atory judgment cannot be the redress that satisfies the third

standing prong. Rather, plaintiffs must identify some further

concrete relief that will likely result from the declaratory

judgment.").

Further, Southern Walk fails to allege that any other effects

of the exclusivity arrangement amount to a personal harm to

it. Southern Walk does not allege that it is a consumer of

OpenBand’s wire-based video services. Compare Lansdowne

2

Although we characterize the issue as one of redressability, Southern

Walk also fails to demonstrate traceability for the same reasons. See Nova

Health Sys. v. Gandy, 416 F.3d 1149, 1159 (10th Cir. 2005) ("In this case,

like many, redressability and traceability overlap as two sides of a causa-

tion coin." (internal quotation marks omitted)).

10 SOUTHERN WALK v. OPENBAND

on the Potomac Homeowners Ass’n v. Openband at Lans-

downe, LLC, No. 12-1925, slip op. at 10 (April 5, 2013). Nor

does Southern Walk allege that it intends to purchase such

wire-based video services from OpenBand’s competitors for

its own use but that the exclusivity arrangement prevents it

from doing so. In short, Southern Walk does not allege any

economic injury to itself caused by the exclusivity arrange-

ment. Any consumer harm the arrangement causes injures

Southern Walk’s member households—not Southern Walk in

its own right.

Alternatively, Southern Walk maintains that it has standing

in its own right because the exclusivity arrangement "inter-

feres with [its] ability to obtain cable-based services for its

constituents." This argument fares no better. In its articles of

incorporation, Southern Walk states that one of its purposes

is "to provide, or cause to provide for, the installation and

maintenance of an exclusive private utility system within the

Property," and, for this purpose, Southern Walk has the

authority to "[p]romote and provide for the . . . general wel-

fare of" its member households. But Southern Walk does not

allege in its amended complaint that the exclusivity arrange-

ment frustrates its stated organizational purpose.3 And, even

if it had, an injury to organizational purpose, without more,

does not provide a basis for standing. See Sierra Club v. Mor-

ton, 405 U.S. 727, 739 (1972); Md. Highways Contractors

Ass’n, 933 F.2d at 1250-51; cf. Havens Realty Corp. v. Cole-

man, 455 U.S. 363, 379 (1982) (finding standing when

"broadly alleged" impairment of an organization’s ability to

advance its purposes combined with an alleged "consequent

drain on the organization’s resources").

3

We note that in its amended complaint, Southern Walk also overstates

its corporate purpose by alleging that its "sole purpose is to administer the

[TSA] . . . for the benefit of the homeowners in the community." The plain

language of its articles of incorporation simply does not reflect this exag-

geration.

SOUTHERN WALK v. OPENBAND 11

For these reasons, we agree with the district court that

Southern Walk failed to plead facts sufficient to support

standing in its own right.

B.

Because Southern Walk alleges no injury to itself in its own

right, it "can establish standing only as [a] representative[ ] of

[its] members who have been injured in fact, and thus could

have brought suit in their own right." Simon v. E. Ky. Welfare

Rights Org., 426 U.S. 26, 40 (1976).

To plead representational standing, an organization must

allege that "(1) its own members would have standing to sue

in their own right; (2) the interests the organization seeks to

protect are germane to the organization’s purpose; and (3)

neither the claim nor the relief sought requires the participa-

tion of individual members in the lawsuit." Md. Highways

Contractors Ass’n, 933 F.2d at 1251 (citing Hunt v. Wash.

State Apple Adver. Comm’n, 432 U.S. 333, 343 (1977)).

The Supreme Court has clarified that to show that its mem-

bers would have standing, an organization must "make spe-

cific allegations establishing that at least one identified

member had suffered or would suffer harm." Summers v.

Earth Island Inst., 555 U.S. 488, 498 (2009) (emphasis

added). Southern Walk has failed to identify a single specific

member injured by the exclusivity arrangement. This failure

to follow the requirement articulated in Summers would seem

to doom its representational standing claim. Southern Walk,

however, argues that the Summers identification requirement

does not apply here for two reasons.

First, Southern Walk contends that the Summers directive

should be limited to its facts, applying only to large, diverse

advocacy groups with voluntary membership, like national

environmental organizations. In effect, Southern Walk asks us

to create an exception to Summers for smaller, presumably

12 SOUTHERN WALK v. OPENBAND

more homogenous, groups with mandatory membership, like

homeowners’ associations. However logical this distinction

may be, the plain language of Summers admits no such excep-

tion. 555 U.S. at 498-99. And although we recognize that

applying Summers to all representational standing claims

places a burden on organizational plaintiffs, such a burden

accords with our obligation under Article III to ensure that

"‘the plaintiff is the proper party to bring [the] suit.’" See

White Tail Park, 413 F.3d at 460 (quoting Raines v. Byrd, 521

U.S. 811, 818 (1997)). Further, any such burden is surely

insubstantial in cases like this one, "whe[re] so many thou-

sands are alleged to have been harmed." See Summers, 555

U.S. at 499. Thus, we refuse to adopt the exception to Sum-

mers that Southern Walk advocates.

Alternatively, Southern Walk argues on appeal that it has

satisfied Summers’ requirement by alleging that "[e]ach of

Southern Walk’s members" is harmed by the exclusivity

arrangement. Summers does retain a limited exception to its

identification requirement for cases in which all members of

an organization are harmed. Summers, 555 U.S. at 499 (citing

NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 459

(1958)). But Southern Walk has failed to allege such a case.

For, contrary to Southern Walk’s appellate argument, its

amended complaint does not allege that all of its members

were harmed. The amended complaint alleges only that

"Southern Walk [which the amended complaint defines, as we

have, as the "Southern Walk Homeowners Association, Inc."]

is being harmed." Thus, Southern Walk’s complaint only

alleges that it, the homeowners’ association, is being harmed

—not that any, let alone all, of its individual members are.

It is well-established that parties cannot amend their com-

plaints through briefing or oral advocacy. See Car Carriers,

Inc. v. Ford Motor Co., 745 F.2d 1101, 1107 (7th Cir. 1984);

accord E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc.,

637 F.3d 435, 449 (4th Cir. 2011) ("[S]tatements by counsel

that raise new facts constitute matters beyond the pleadings

SOUTHERN WALK v. OPENBAND 13

and cannot be considered on a Rule 12(b)(6) motion."). More-

over, contrary to Southern Walk’s contention, an allegation

that "Southern Walk [the homeowners’ association] is being

harmed" simply does not equate to an allegation that each or

all of Southern Walk’s members are "being harmed" as well.

Such an interpretation of the amended complaint would blur

the important distinctions between standing based on an orga-

nization’s injury in its own right and representational standing

based on injury to its members.

Furthermore, although it is possible that each Southern

Walk member is "being harmed" by the exclusivity arrange-

ment, Southern Walk’s terse allegation of its injury—without

specific mention of any individual member’s injury—surely

"‘stops short of the line between possibility and plausibility,’"

Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly,

550 U.S. 544, 557 (2007)), for the purposes of the limited "all

members" exception to the Summers identification require-

ment. For the allegations in the complaint provide no indica-

tion that every Southern Walk member household actually

desires alternative wire-based video services. Accordingly,

Southern Walk has failed to allege representational standing.

C.

Although we conclude that Southern Walk failed to plead

facts adequate to establish either individual or representa-

tional standing, we cannot affirm the district court’s ultimate

dismissal of Southern Walk’s amended complaint with preju-

dice.

A dismissal for lack of standing—or any other defect in

subject matter jurisdiction—must be one without prejudice,

because a court that lacks jurisdiction has no power to adjudi-

cate and dispose of a claim on the merits. See Fed. R. Civ. P.

41(b); Semtek Int’l Inc. v. Lockheed Martin Corp., 531 U.S.

497, 505 (2001); Steel Co. v. Citizens for a Better Env’t, 523

U.S. 83, 93-94 (1998); Interstate Petroleum Corp. v. Morgan,

14 SOUTHERN WALK v. OPENBAND

249 F.3d 215, 222 (4th Cir. 2001) (en banc); see also Brere-

ton v. Bountiful City Corp., 434 F.3d 1213, 1218 (10th Cir.

2006) ("[D]ismissals for lack of jurisdiction should be without

prejudice because the court, having determined that it lacks

jurisdiction over the action, is incapable of reaching a disposi-

tion on the merits of the underlying claims."); Frederiksen v.

City of Lockport, 384 F.3d 437, 438 (7th Cir. 2004) ("A suit

dismissed for lack of jurisdiction cannot also be dismissed

‘with prejudice’; that’s a disposition on the merits, which only

a court with jurisdiction may render. . . . ‘No jurisdiction’ and

‘with prejudice’ are mutually exclusive." (internal citation

omitted)).

Accordingly, we affirm the judgment of the district court to

the extent that it dismisses Southern Walk’s amended com-

plaint, but we vacate the judgment to the extent that the dis-

missal was with prejudice, and remand with instructions that

the case be dismissed without prejudice.4

III.

Having resolved Southern Walk’s appeal, we turn to Open-

Band’s appeal challenging the district court’s refusal to grant

it attorneys’ fees. Typically, we review a grant or denial of a

motion for attorneys’ fees for abuse of discretion. See John-

son v. City of Aiken, 278 F.3d 333, 336 (4th Cir. 2002). How-

ever, because OpenBand moved for attorneys’ fees pursuant

to a fee-shifting provision in the TSA, and the district court

denied the motion on contract interpretation grounds, we

review the district court’s denial de novo. See Johannssen v.

Dist. No. 1-Pac. Coast Dist., MEBA Pension Plan, 292 F.3d

159, 178 (4th Cir. 2002), abrogated on other grounds by

Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, 128 (2008).

4

We note that the district court made alternative holdings on the merits

assertedly supporting its dismissal with prejudice. Given the court’s lack

of jurisdiction over the case, any alternative holdings based on consider-

ation of and conclusions on the merits were beyond the power of the dis-

trict court. Steel Co., 523 U.S. at 94.

SOUTHERN WALK v. OPENBAND 15

The TSA provides that "[t]he prevailing Party in any litiga-

tion, proceeding or action commenced in connection with

enforcing any of the provisions of this Agreement shall

recover any and all legal expenses incurred in pursuing such

litigation, proceeding or action from the non-prevailing

Party."

OpenBand maintains that it is a "prevailing Party" because

that term "generally means a party that prevails on the merits

of the underlying action," even if prevailing on the merits

only maintains the status quo. Southern Walk argues that for

a party to be "prevailing" requires a material alteration in the

legal relationship between the parties—something that cannot

occur after a dismissal for lack of jurisdiction.5 We need not

go so far as Southern Walk suggests. For even accepting

OpenBand’s definition arguendo, OpenBand is not a "prevail-

ing party" in this case because a dismissal for lack of standing

does not constitute a determination on the merits. White Tail

Park, 413 F.3d at 460.

We accordingly affirm the district court’s denial of Open-

Band’s motion for attorneys’ fees.

5

Southern Walk borrows its definition from the Supreme Court’s con-

struction of statutes allowing fee-shifting by a "prevailing party." E.g., 42

U.S.C. § 1988(b). For a party to be "prevailing" under those statutes, the

Supreme Court requires that a "judgment[ ] on the merits [or a] court-

ordered consent decree[ ] create [a] ‘material alteration of the legal rela-

tionship of the parties.’" Buckhannon Bd. & Care Home, Inc. v. W. Va.

Dep’t of Health & Human Res., 532 U.S. 598, 604 (2001) (quoting Tex.

State Teachers Ass’n v. Garland Indep. Sch. Dist., 489 U.S. 782, 792-93

(1989)). Our sister circuits have divided on whether a defendant that suc-

cessfully moves for dismissal for lack of subject matter jurisdiction can

ever be a prevailing party under this definition. Compare Elwood v. Dres-

cher, 456 F.3d 943, 948 (9th Cir. 2006) (not a prevailing party), with Citi-

zens for a Better Env’t v. Steel Co., 230 F.3d 923, 930 (7th Cir. 2000) (a

prevailing party where dismissal "forecloses the plaintiff’s claim"). In this

case, we offer no opinion on the proper interpretation of "prevailing party"

in those statutory contexts. See Wendt v. Leonard, 431 F.3d 410, 414 (4th

Cir. 2005) (similarly refusing to weigh in on this division among our sister

circuits).

16 SOUTHERN WALK v. OPENBAND

IV.

In sum, we affirm that portion of the district court’s judg-

ment dismissing Southern Walk’s complaint, but vacate that

judgment to the extent that the dismissal was with prejudice,

and remand to that court for dismissal of the case without

prejudice. Further, we affirm the district court’s judgment

denying attorneys’ fees to OpenBand. We note that nothing in

our decision today forecloses Southern Walk, if the facts per-

mit, from filing a new action with the same underlying claim

in the district court, and properly pleading standing. Semtek

Int’l Inc., 531 U.S. at 505 ("The primary meaning of ‘dis-

missal without prejudice,’ . . . is dismissal without barring the

plaintiff from returning later, to the same court, with the same

underlying claim."); see also Lansdowne on the Potomac

Homeowners Ass’n, slip op. at 9-14 (4th Cir. Apr. 5, 2013).

No. 12-1331 AFFIRMED IN PART AND

VACATED AND REMANDED IN PART

No. 12-2083 AFFIRMED