Opinion
Case Number: 20-22059-CIV-MORENO
2021-09-30
ORGANIZATION OF PROFESSIONAL AVICULTURISTS, INC., Plaintiff, v. Eric L. KERSHNER, in his official capacity as the Chief Officer at the Branch of Conservation, Permits, and Regulations, and U.S. Fish and Wildlife Service, Defendants.
Mark Andrew Prada, David Anthony Garcia, Prada Urizar, PLLC, Miami, FL, for Plaintiff. Robert Mark Norway, DOJ-Enrd, Environment and Natural Resources Division, Washington, DC, for Defendants.
Mark Andrew Prada, David Anthony Garcia, Prada Urizar, PLLC, Miami, FL, for Plaintiff.
Robert Mark Norway, DOJ-Enrd, Environment and Natural Resources Division, Washington, DC, for Defendants.
ORDER DISMISSING CASE FOR LACK OF JURISDICTION AND DENYING PLAINTIFF'S UNTIMELY MOTION TO ADD NAMED PLAINTIFF
FEDERICO A. MORENO, UNITED STATES DISTRICT JUDGE Plaintiff, the Organization of Professional Aviculturists, Inc., brings this case to contest the U.S. Fish and Wildlife Service's addition of 47 bird species to the list of protections under the Migratory Bird Treaty Act, 16 U.S.C. § 703 - 712. To establish associational standing, Plaintiff points to an afflicted member named Dariel Gonzalez, who owns a pair of Red-legged Honeycreepers (Cyanerpes Cyaneus ), which he breeds. This is the sole injury to a member that Plaintiff identifies, and it does not identify an injury to any other member relating to the other 46 species. Because associational standing stems from injuries to the organization's members, Plaintiff lacks standing as to those claims relating to the addition of the 46 species to the list.
With respect to the addition of the Red-legged Honeycreeper, the question is whether Plaintiff has standing stemming from Mr. Gonzalez's injury. Mr. Gonzalez is not on Plaintiff's official membership roll. This is undisputed. He is a member of the Avicultural Society of America. Plaintiff proffers evidence to show that the two organizations are affiliated, and that Mr. Gonzalez's membership in one means he is a member of both. To that end, Plaintiff proffers two sworn statements by Mr. Gonzalez, two letters from the Avicultural Society, a letter from the Plaintiff, and a Memorandum of Affiliation by both organizations. The Plaintiff's proffered evidence is hearsay and cannot be reduced to admissible evidence for consideration on a motion for summary judgment. Mr. Gonzalez's sworn statements are conclusory and not based on his personal knowledge. Because there is insufficient record evidence to show that when the complaint was filed the Plaintiff and the Avicultural Society were affiliated and shared members, the Court finds there is no genuine dispute warranting an evidentiary hearing to determine the association's standing.
To cure the standing deficiency, the Plaintiff filed an untimely motion to add the Avicultural Society as a plaintiff on March 3, 2021. Even if the Court were to find good cause to allow the amendment five months after the deadline, the amendment would be futile. Like the Plaintiff, the Avicultural Society also lacks standing as to the addition of the 46 bird species. The Avicultural Society is incorporated in California and therefore, venue would be improper here. Finally, the Avicultural Society, like the Organization of Professional Aviculturists, lacks standing to assert a Fifth Amendment takings claim because it does not own the property at issue, and jurisdiction over the takings claim is vested in the U.S. Court of Claims.
THIS CAUSE came before the Court upon the Plaintiff's Motion for Summary Judgment (D.E. 23) , the Defendants’ Motion for Summary Judgment (D.E. 27) , and Plaintiff's Untimely Motion to Add Named Plaintiff (D.E. 24 ).
THE COURT has considered the motions, the responses, the pertinent portions of the record, and being otherwise fully advised in the premises, it is
ADJUDGED that the case is DISMISSED due to Plaintiff's lack of standing and the Defendant's Motion for Summary Judgment is GRANTED on the issue of standing. It is
ADJUDGED that Plaintiff's motion for summary judgment is DENIED as moot. It is also
ADJUDGED that Plaintiff's untimely motion to add a named plaintiff is DENIED for lack of good cause.
I. Background
Plaintiff, the Organization of Professional Aviculturists, Inc., represents bird breeders, and requests the Court declare the U.S. Fish and Wildlife Service's rulemaking invalid. Plaintiff's complaint is that the U.S. Fish and Wildlife Service included 47 species of birds within the protection of the Migratory Bird Treaty Act, 16 U.S.C. § 703 - 712, which Plaintiff claims are not naturally "occurring" in the United States. Specifically, the Plaintiff requests the Court grant summary judgment and vacate the issuance of the Revised List of Migratory Birds, 85 Fed. Reg. 21,282 (Apr. 16, 2020), by finding that the Defendants violated due process, exceeded their statutory authority, acted arbitrarily and capriciously, and violated the Fifth Amendment's Takings Clause.
Defendants filed a cross-motion for summary judgment arguing that Plaintiff lacks associational standing. The cross-motion argues the U.S. Fish and Wildlife Service did not exceed its statutory authority, the service reasonably determined that 47 species should be added to the List of Migratory Birds found in 50 C.F.R. § 10.13, the Service promulgated the rule in accordance with law, and the takings claim is unfounded. Defendants argue the Service did not unlawfully delegate its authority to a private entity.
A. Factual Background
The Migratory Bird Treaty Act of 1918, 16 U.S.C. §§ 703 - 712, implements a series of treaties signed between the United States, Great Britain, Canada, Mexico, Russia/Soviet Union, and Japan, for the purpose of protecting certain biological families of birds. The Migratory Bird Treaty Act makes it unlawful to in any way interact or interfere with any "migratory bird species that are native to the United States or its territories." 16 U.S.C. § 703(b)(1). "Native to the United States" ... "means occurring in the United States or its territories as the result of natural biological or ecological processes." 16 U.S.C. § 703(b)(2)(A). It adds "a migratory bird species that occurs in the United States or its territories solely as a result of intentional or unintentional human-assisted introduction shall not be considered native to the United States or its territories." 16 U.S.C. § 703(b)(2)(B). Plaintiff's claims stem from the addition of 47 bird species, including the Red-legged Honeycreeper, to the list of protected bird species. Plaintiff asserts its member, Dariel Gonzalez, is a breeder of birds, and was injured by the addition of the Red-legged Honey Creeper to the list.
II. Summary Judgment Standard
Fed. R. Civ. P. 56 provides, "summary judgment is appropriate where there ‘is no genuine issue as to any material fact’ and the moving party is ‘entitled to judgment as a matter of law.’ " See Alabama v. N. Carolina , 560 U.S. 330, 130 S. Ct. 2295, 2308, 176 L.Ed.2d 1070 (2010) (quoting Fed. R. Civ. P. 56(a) ). The existence of some factual disputes between litigants will not defeat an otherwise properly ground motion for summary judgment; "the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (emphasis added). Mere "metaphysical doubt as to the material facts" will not suffice. Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The basic issue before the court on a motion for summary judgment is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251, 106 S.Ct. 2505 (1986). The moving party has the burden of showing the absence of a genuine issue as to any material fact, and in deciding whether the movant has met this burden the court must view the movant's evidence and all factual inferences arising from it in the light most favorable to the nonmoving party. Allen v. Tyson Foods, Inc. , 121 F.3d 642, 646 (11th Cir. 1997). "If reasonable minds could differ on the inferences arising from undisputed facts, then a court should deny summary judgment." Miranda v. B & B Cash Grocery Store, Inc., 975 F.2d 1518, 1534 (11th Cir. 1992).
III. Legal Analysis
A. Associational Standing
Plaintiff seeks to proceed as a party based on an associational standing theory. The "party invoking federal jurisdiction bears the burden of establishing" standing. Lujan v. Defs. of Wildlife , 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Because standing is not a "mere pleading requirement[ ] but rather an indispensable part of a plaintiff's case, each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation." Id.
An "association only has standing to bring suit on behalf of its members when its members would otherwise have standing to sue in their own right, the interests it seeks to protect are germane to the organization's purpose, and neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit." Fund Democracy, LLC v. SEC , 278 F.3d 21, 25 (D.C. Cir. 2002) (citing Friends of the Earth, Inc. v. Laidlaw Env't Servs. (TOC), Inc. , 528 U.S. 167, 181, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) ). In other words, standing for a traditional membership organization is limited by its membership.
Defendant argues at summary judgment that the Plaintiff, Organization of Professional Aviculturists, fails to set forth "by affidavit or other evidence ‘specific facts’ " to support its standing. Ga. Republican Party v. SEC , 888 F.3d 1198, 1201 (11th Cir. 2018) (quoting Lujan , 504 U.S. at 561, 112 S.Ct. 2130 ) (citing Fed. R. Civ. P. 56(e) ). "[W]hen standing is raised at the summary judgment stage, the plaintiff ... must ‘set forth’ by affidavit or other evidence specific facts, ... which for purposes of the summary judgment motion will be taken as true." Bischoff v. Osceola Cty., Fla. , 222 F.3d 874, 878 (11th Cir. 2000).
In response to summary judgment, the Plaintiff states it has standing because its member, Dariel Gonzalez, owned a legally purchased breeding pair of Red-legged Honeycreepers (Cyanerpes cyaneus ) prior to the issuance of the final rule, General Provisions: Revised List of Migratory Birds , 85 Fed. Reg. 21,282 (Apr. 16, 2020), and prior to the initiation of this lawsuit. Plaintiff claims the Defendants’ actions injured Mr. Gonzalez because he can no longer breed and sell his Red-legged Honeycreepers, pursuant to 16 U.S.C. § 703 and 50 C.F.R. § 21.2(a). Plaintiff asserts that Defendants stripped Mr. Gonzalez of economic and recreational benefits of the possession of his property and his injuries are directly caused by the publication of the revised list. Plaintiff requests the Court vacate the rule to remedy this injury.
"Standing is not dispensed in gross." Town of Chester, N.Y. v. Laroe Ests., Inc. , ––– U.S. ––––, 137 S. Ct. 1645, 1650, 198 L.Ed.2d 64 (2017) (quoting Davis v. Fed. Election Comm'n , 554 U.S. 724, 734, 128 S.Ct. 2759, 171 L.Ed.2d 737 (2008) ). To the extent that Plaintiff is asserting standing, the only identified injury is the harm to Mr. Gonzalez based on the addition of the Red-legged Honeycreeper to the list. Plaintiff has not identified a single person injured by the addition of the other 46 species that it challenges. Plaintiff has also not identified a member injured by the Defendants’ decisions to add the Cackling Goose (Branta Hutchinsii) and Bananaquit (Coereba flaveola ) to the list of migratory birds based on taxonomic changes. Accordingly, to the extent Plaintiff challenges the addition of species to the list, apart from the Red-legged Honeycreeper, there is no associational standing.
Plaintiff requests that the Court conduct an evidentiary hearing on the issue of standing based on the injury to Mr. Dariel Gonzalez. The point of contention is whether Mr. Gonzalez is actually a member of the Organization of Professional Aviculturists. Plaintiff's response to summary judgment readily admits that Mr. Gonzalez does not appear on the direct membership roster of the Organization of Professional Aviculturists. Rather, Plaintiff's position is that Mr. Gonzalez is a member of the Organization of Professional Aviculturists, by virtue of being on the Avicultural Society of America membership roll. In support of its position, Plaintiff proffers Mr. Gonzalez's sworn statements, and a February 24, 2021 letter by the Plaintiff stating that Mr. Gonzalez is a "current member in good-standing" and "has been a member [sic] since November 2, 2019." The letter adds:
The Organization of Professional Aviculturists acknowledges Mr. Gonzalez as a full member through his membership in the [Avicultural Society of America].
Plaintiff also provides the Court with two January 9, 2021 letters from the Avicultural Society of America acknowledging Mr. Gonzalez's membership and the organizations’ shared membership. Finally, the Plaintiff provided a "Memorandum of Affiliation," dated February 24, 2021 from both organizations. The memorandum states that it "memorializes [the] long-standing affiliation agreement [of the Organization of Professional Aviculturists and the Avicultural Society of America." It adds:
OPA and ASA first became formally affiliated organizations on July 13, 2008, through an agreement of OPA Founder Howard Voren and ASA then-President, Steven Duncan that was confirmed by the governing bodies of both organizations ... The terms of that agreement, as understood by both organizations, are and have always been that the OPA and ASA recognize each other's member as members of each organization. If an individual appears on the membership rolls of either organization then that individual has the same rights and responsibilities as they relate to both organizations ... This affiliation does not require that individual members pay membership dues to both organizations.
(ECF 36-2).
The parties agree that Mr. Gonzalez is not on Plaintiff's membership roll. The question is whether the affiliation between the Organization of Professional Aviculturists and the Avicultural Society of America is sufficient to find that his membership in the latter equates to membership in the former. An organizational plaintiff may establish associational standing to bring a claim in federal court only "on behalf of its members," not the members of another organization. Hunt v. Wash. State Apple Advert. Comm'n , 432 U.S. 333, 343, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977). Hunt establishes a requirement that an association identify members who would otherwise have standing to sue in their own right, which "weed[s] out plaintiffs who try to bring cases, which could not otherwise be brought, by manufacturing allegations of standing that lack any real foundation." N.Y. State Club Ass'n, Inc. v. City of N.Y. , 487 U.S. 1, 9, 108 S.Ct. 2225, 101 L.Ed.2d 1 (1988) (holding that an organizational plaintiff can establish associational standing based on an injury to the member of another organization if the second organization is a member of the organizational plaintiff and has standing to bring the same challenge). Defendants argue that Hunt ’s injured member requirement calls for something more than an informal, amorphous affiliation between two independent organizations. Here, there is no evidence that the Avicultural Society is Plaintiff's member.
In Hunt , the Supreme Court held that the Washington State Apple Advertising Commission had standing to challenge a North Carolina statute prohibiting the display of Washington State apple grades. Hunt , 432 U.S. at 342-43, 97 S.Ct. 2434. The commission was established by the Washington legislature to protect and advance the interests of a particular industry; it was not a membership organization. Id. at 344, 97 S.Ct. 2434. Although the apple growers were not members of the commission, the Supreme Court found standing because the apple growers elected members of the commission, served on the commission, and financed its activities. Hunt expanded the category of organizations that could have associational standing. Students for Fair Admissions, Inc. v. President & Fellows of Harv. Coll. , 261 F. Supp. 3d 99, 108 (D. Mass. 2017) (a traditional membership organization has standing only where "at least one member has a personal injury-in-fact, germaneness, and no need for individual member participation" and "a non-membership organization might still have associational standing provided it has sufficient indicia of membership[.]" as set forth in Hunt ); Brady Campaign to Prevent Gun Violence v. Salazar , 612 F. Supp. 2d 1, 29 (D.D.C. 2009) ("The inquiry into the ‘indicia of membership’ ... is necessary only when an organization is not a ‘traditional membership organization.’ "); see also Students for Fair Admissions, Inc. v. Univ. of N.C., 14-CV-954, 2018 WL 4688388, at *4 (M.D.N.C. Sept. 29, 2018).
This case is one by a traditional membership organization, which requires a showing that there is an injured member, the suit is germane to the interests of the organization, and neither the claim asserted nor the requested relief requires the participation of individual members in the suit. Hunt , 432 U.S. at 343, 97 S.Ct. 2434. Even if the Court found the Organization of Professional Aviculturists is not a traditional membership organization, there is no evidence that Avicultural Society members elect Plaintiff's officers, or finance Plaintiff's activities, which would satisfy Hunt ’s "indicia of membership" test to confer standing.
The only remaining avenue for Plaintiff to obtain standing depends on Mr. Gonzalez's membership status. The Court, therefore, examines whether there is sufficient evidence that Mr. Gonzalez is indeed Plaintiff's member, such that his membership would confer standing on the Plaintiff.
1. Examination of Record Evidence
The next issue is whether the Plaintiff has set forth sufficient record evidence to create an issue of fact as to whether he is a member of the Plaintiff organization such that standing is conferred. "[W]here the evidence relating to standing is squarely in contradiction as to central matters and requires credibility findings, a district court cannot make those findings simply by relying on the paper record but must conduct a hearing[.]" Bischoff , 222 F.3d at 881.
The January 9, 2021 letters from the Avicultural Society of America are offered to show that Dariel Gonzalez is a member of the Avicultural Society and that the associations "share" members (ECF 36-2). Plaintiff's October 13, 2020 affidavit and his subsequent sworn statement dated February 24, 2021 are offered to show the same. Id. The February 24, 2021 Memorandum of Affiliation is also offered for the same purpose. The question is whether these documents suffice to create an issue of fact warranting an evidentiary hearing as to Plaintiff's standing.
Federal Rule of Civil Procedure 56(c)(4) sets forth evidentiary requirements. It states:
An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.
Affidavits based on information and belief, rather than personal knowledge, are also insufficient to withstand a motion for summary judgment. Rodda v. Univ. of Miami , No. 19-25301, 542 F. Supp. 3d 1289 (S.D. Fla. June 4, 2021).
It is well-settled that conclusory affidavits, submitted by a nonmoving party in opposition to a motion for summary judgment, will not create an issue of fact for trial. See United States v. Stein , 881 F.3d 853 (11th Cir. 2018). Conclusory allegations without specific supporting facts have no probative value. Rodda , 542 F.Supp.3d at 1294–95. Further, affidavits that are based upon "[b]ald conclusions, opinions, and hearsay without supporting specific facts are not admissible and do not create a genuine issue of material fact." Venerio v. Fed. Express Corp. , No. 17-22624, 2018 WL 5283876, *5 (S.D. Fla. Sept. 17, 2018) (citing Evers v. Gen. Motors Corp. , 770 F.2d 984, 986 (11th Cir. 1985) ).
Hearsay contained within an affidavit is not admissible unless the representations are subject to an exception to the hearsay rule provided by either Federal Rule of Evidence 803 or 804. The general rule is that inadmissible hearsay cannot defeat a motion for summary judgment where there is no indication that it is reducible to a form that would be admissible at trial. Pritchard v. Southern Co. Servs. , 92 F.3d 1130, 1135 (11th Cir. 1996).
Mindful of these principles, the Court examines the Plaintiff's evidentiary support for its position that Mr. Gonzalez is a member. First, Plaintiff proffers Mr. Gonzalez's October 13, 2020 affidavit and his February 24, 2021 sworn statement. (ECF 36-2 at 1-2). The "Standing Affidavit" signed on October 13, 2020 states that "I, Dariel Gonzalez, am a member of the Organization of Professional Aviculturists." The second statement signed on February 24, 2021 states that
I, Dariel Gonzalez, state that I hold myself out to be an OPA member. I believe myself to be an OPA member because I am a member of the ASA and the ASA and the OPA are affiliated organizations. I have been informed by both organizations that my membership in either [sic] organization makes me a member of both. As such, I hold myself out, believe myself, and act as member of both.
Read together, the most plausible explanation of these statements is that Mr. Gonzalez is a member of the Avicultural Society and he was told the Society was affiliated with the Organization of Professional Aviculturists. Thus, his membership in one "makes [him] a member of both." The sworn statements are not based on Mr. Gonzalez's personal knowledge as required by Federal Rule of Civil Procedure 56(c)(4). Even though "[a]ll reasonable inferences arising from the undisputed facts should be made in favor of the nonmovant ..., an inference based on speculation and conjecture is not reasonable." Chapman v. Am. Cyanamid Co. , 861 F.2d 1515, 1518 (11th Cir. 1988). Here, the statement shows a lack of personal knowledge by Mr. Gonzalez, indeed, he even says he "believe[s]" himself to be a member of both. "Speculation does not create a genuine issue of fact; instead, it creates a false issue, the demolition of which is a primary goal of summary judgment." Cordoba v. Dillard's, Inc. , 419 F.3d 1169, 1181 (11th Cir. 2005) (quoting Hedberg v. Ind. Bell Tel. Co. , 47 F.3d 928 (7th Cir. 1995) ). Moreover, to the extent Mr. Gonzalez asserts that he was told by the Aviculturist Society that he was also a member of the Plaintiff, that statement is inadmissible hearsay, which cannot defeat a motion for summary judgment. Finally, his initial statement that he is a member of the Organization of Professional Aviculturists is conclusory, and not supported by specific facts, i.d. payment of dues or participation in the organization's events. The conclusory statement is also belied by the contents of the second sworn statement, which states that he was told he was a member.
The hearsay rule also precludes this Court from considering the Avicultural Society's January 9, 2021 letters, the Plaintiff's February 24, 2021 letter, and the February 24, 2021 Memorandum of Affiliation. "Inadmissible hearsay ‘cannot be considered on a motion for summary judgment.’ " Macuba v. Deboer , 193 F.3d 1316, 1322 (11th Cir. 1999) (quoting Garside v. Osco Drug, Inc. , 895 F.2d 46, 50 (1st Cir. 1990) ). The letters are hearsay. See United States v. Cunningham , 194 F.3d 1186, 1194 (11th Cir. 1999) (letter offered to prove the truth of the matter asserted is hearsay); see also Fed. R. Evid. 801(c). Similarly, the memorandum is hearsay within hearsay, as the Plaintiff offers it to prove that it and the Avicultural Society have a long-standing affiliation agreement predating the filing of the complaint. The memorandum discusses the contents of a 2008 agreement. To be admissible, the documents would need to fall into a hearsay exception. The documents do not qualify under the business records exception as their dates (i.e. January 9 and February 24, 2021) suggest they were prepared for this litigation. United States v. Dreer , 740 F.2d 18, 20 (11th Cir. 1984) (proper foundation for admission of business record must sufficiently show reliability, including "circumstances surrounding the origin and the nature of the compilation."). That the documents were prepared concurrently with the summary judgment briefing in this case suggests they were not prepared in the ordinary course of business, which is the reason for the exception. The traditional reliability of a business record is missing here given the dates of these documents. It is not reasonable to think that a document prepared years after an agreement was made between the Organization and the Society is a traditional business record with the indicia of reliability that comes with being prepared in the ordinary course of business.
Finally, the Court examines whether the documents could be admissible under the statement of a party opponent exception. Of the three documents, only one of them is directly from the Plaintiff's secretary. The other two documents are signed by members of the Avicultural Society. With regards to the one letter drafted by the Plaintiff, it is being offered by the Plaintiff to prove the truth of the matter asserted. It is not being offered against the Plaintiff, and therefore, it does not qualify as a statement of a party opponent. Fed. R. Evid. 801(d)(2). The documents also lack authentication. Federal Rule of Evidence 901 requires that a "proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is." "In order for a document to be considered in support of or in opposition to a motion for summary judgment, it must be authenticated by and attached to an affidavit that meets the requirements of Rule 56(e), and the affiant must be a person through whom the exhibits could be admitted into evidence." Burnett v. Stagner Hotel Courts, Inc., 821 F. Supp. 678, 683 (N.D. Ga. 1993) ; see also Rowell v. Bellsouth Corp. , 433 F.3d 794, 800 (11th Cir. 2005). The letters and the Memorandum of Affiliation were attached to Mr. Gonzalez's affidavit to corroborate his statements. There is no independent affidavit from an agent of the Avicultural Society or the Organization of Professional Aviculturists to provide the foundation for the documents. See Stone v. Potter , No. 05-61808-CIV-MARRA, 2007 WL 9700952, at *2 (S.D. Fla. June 6, 2007) (holding an unsworn unauthenticated document "cannot be considered on summary judgment").
Accordingly, the Court finds the proffered evidence insufficient to create a genuine dispute warranting an evidentiary hearing to determine if the association has standing.
B. Standing for the Fifth Amendment Takings Claim
Standing for a Fifth Amendment takings claim requires a showing that Plaintiff owns particular property. Plaintiff cannot use an associational standing theory as a basis for its takings claim. Greater Atlanta Home Builders Ass'n, Inc. v. City of Atlanta, Ga. , 149 F. App'x 846, 848 (11th Cir. 2005) (citing Ga. Cemetery Ass'n, Inc. v. Cox , 353 F.3d 1319 (11th Cir. 2003) (holding organization did not have associational standing to bring a takings claim because such a claim varied on the economic circumstances of each member)); Radenhausen v. U.S. Coast Guard , No. 3:13-cv-268-J-39JRK, 2015 WL 12861136, at *4 (M.D. Fla. Jan. 30, 2015), report and recommendation adopted sub. nom. Radenhausen v. United States , No. 3:13-cv-268-J-39JRK, 2015 WL 12859347 (M.D. Fla. Mar. 5, 2015) (for standing, a plaintiff must demonstrate ownership in the property at the time of the taking) (quoting Maniere v. United States , 31 Fed. Cl. 410, 420 (1994) ).
Plaintiff does not contest that it lacks ownership in any property subject to the challenged final rule. (ECF 36 at 22). Rather, Plaintiff attempts to recast its takings claim stating that it is not asking for compensation, but rather seeks to vacate the rule because could have criminal implications for the owners of the relevant bird species. Even a request for declaratory judgment of this nature requires the Plaintiff have standing. This Plaintiff is not at risk of criminal penalty because it does not own any of the species. Accordingly, the Court finds that standing is also lacking as to the takings claim.
Regardless of Plaintiff's standing, the Court lacks jurisdiction over the takings claim. Compensation for a taking may be obtained under the Tucker Act, which confers jurisdiction on the United States Court of Claims. 28 U.S.C. § 1491. If a Tucker Act remedy is available, then a plaintiff must first avail itself of the process provided by the act and file suit in the Court of Claims for compensation. Preseault v. Interstate Com. Comm'n , 494 U.S. 1, 11-12, 110 S.Ct. 914, 108 L.Ed.2d 1 (1990). A Tucker Act remedy is available unless Congress provides otherwise. Id. at 12, 110 S.Ct. 914. The Migratory Bird Treaty Act does not provide an alternative remedy. Therefore, the Court of Federal Claims possesses jurisdiction over the takings claim. As noted, Plaintiff argues the Tucker Act does not control this claim because it seeks no compensation, but rather is seeking to vacate the rule. The Migratory Bird Treaty Act provides no such exception and therefore, jurisdiction is proper in the Court of Claims. Student Loan Mktg. v. Riley , 104 F.3d 397, 401 (D.C. Cir. 1997) (explaining that a takings claim seeking declaratory judgment may not be brought in district court unless the claim falls within an exception to Tucker Act jurisdiction). Therefore, the takings claim is dismissed for lack of jurisdiction.
C. Motion to add named plaintiff
To avoid the standing issue, the Plaintiff filed an untimely motion to add the Avicultural Society as a named plaintiff. Plaintiff filed this motion on March 3, 2021, long after the Court's September 23, 2020 deadline to join additional parties and amend pleadings. The motion was filed after the Plaintiff filed its motion for summary judgment, and two days before the Defendants filed their response and cross-motion for summary judgment.
Plaintiff asserts that it delayed the filing of this motion because it believed the Defendants would not be contesting standing. It was not until December 15, 2020 when Defendants served jurisdictional discovery that Plaintiff realized that standing was an issue in this case. The jurisdictional discovery focused on discovering information about the individual members who Plaintiff intended to use to establish associational standing.
1. Legal Standard
The parties agree that Federal Rule of Civil Procedure 16 ’s good cause standard applies. Good cause exists when "evidence supporting the proposed amendment would not have been discovered in the exercise of reasonable diligence until after the amendment deadline had passed." Donahay v. Palm Beach Tours & Transp. Inc. , 243 F.R.D. 697, 699 (S.D. Fla. 2007).
To support its position that good cause exists, Plaintiff states that it did not believe the Defendants would make standing an issue in this case and it was not until Defendants served jurisdictional discovery on December 15, 2020 that Plaintiff knew Defendants would raise standing. The discovery cut-off was January 7, 2021.
Plaintiff's discovery responses base standing entirely on the injury to Dariel Gonzalez. Plaintiff produced Mr. Gonzalez's "Standing Affidavit" stating he is a "member of the Organization of Professional Aviculturists" and his separate sworn statement stating that "I hold myself out to be an OPA member. I believe myself to be an OPA member because I am a member of the ASA and the ASA and the OPA are affiliated organizations[.]" (ECF 24-1). These sworn statements were attached to the Plaintiff's responses to the interrogatories. Also attached were letters from the Plaintiff and the Avicultural Society.
The parties conferred on these discovery responses on January 24, 2021. At that point, Defendants considered conducting depositions as to the standing issue. Rather than engaging in additional discovery, the parties discussed stipulating to facts on the standing issue. On February 3, 2021, Plaintiff raised the addition of the Avicultural Society as a plaintiff. The parties again conferred on February 17, 2021 after Plaintiff revised the discovery responses. At that point, the Defendants informed Plaintiff they would not agree to adding the Avicultural Society as a plaintiff, but that a stipulation on the facts relevant to standing would expeditiously resolve Defendants’ issues regarding Plaintiff's responses to discovery. On February 24, 2021, Plaintiff informed Defendants that it would not agree to the proposed stipulation and that it would be filing a motion to add the Avicultural Society as a plaintiff. A week later, Plaintiff filed the motion to add the plaintiff.
The Court must decide whether there is good cause to add the plaintiff. The burden of establishing good cause and diligence rests squarely on the party seeking relief from the scheduling order. TIC Park Ctr., 9 LLC v. Cabot , No. 16-24569-CIV, 2018 WL 4828435, at *4 (S.D. Fla. Aug. 28, 2018). The good cause standard turns on Plaintiff's reasonable diligence. Sosa v. Airprint Sys., Inc. , 133 F.3d 1417, 1418 (11th Cir. 1998). Courts consider three factors in assessing diligence: (1) whether the movant failed to ascertain facts prior to filing the pleading or failed to acquire information during the discovery period; (2) whether the information supporting the proposed amendment was available to the movant; and (3) whether the movant delayed in requesting leave to amend even after acquiring information. See, e.g., id. at 1419.
Plaintiff could have easily ascertained that Mr. Gonzalez was not on its membership roll prior to filing suit. That information was available to Plaintiff and yet, it waited nine months after filing the case to file this motion. Plaintiff explains it thought the addition of the Avicultural Society as a plaintiff was unnecessary because it believed Defendants would not challenge the Plaintiff's standing. Standing is the sine qua non of federal courts-federal courts only have jurisdiction where there is a "case" or "controversy" within the meaning of Article III. See Lujan , 504 U.S. at 559-60, 112 S.Ct. 2130. "Establishing standing is of such importance that it can be raised at any time by any party—even by the court on its own." Ramones v. Experian Info. Sols., LLC , No. 19-62949, 2021 WL 4050874, *1 (S.D. Fla. Sept. 4, 2021) (citing Arbaugh v. Y&H Corp. , 546 U.S. 500, 506, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006) ) ("The objection that a federal court lacks subject matter jurisdiction ... may be raised by a party, or by a court on its own initiative, at any stage of the litigation[.]"); Trichell v. Midland Credit Mgmt., Inc. , 964 F.3d 990, 996 (11th Cir. 2020). It is similarly established that an organization cannot rest on general " ‘self-descriptions’ of its standing regardless of whether it is challenged by any of the parties." Summers v. Earth Island Inst. , 555 U.S. 488, 499, 129 S.Ct. 1142, 173 L.Ed.2d 1 (2009) (citing Bender v. Williamsport Area Sch. Dist. , 475 U.S. 534, 541, 106 S.Ct. 1326, 89 L.Ed.2d 501 (1986) ). Given this well-established law, Plaintiff's reliance on its belief that Defendant would not challenge its standing as a reason for not adding a party fails to meet the good cause standard to explain the delay. Indeed, the Eleventh Circuit has stated that "the fact that [the plaintiff] or his counsel misunderstood the scope of legal protection available ... does not constitute good cause." Oravec v. Sunny Isles Luxury Ventures, LLC , 527 F.3d 1218, 1232 (11th Cir. 2008).
The Eleventh Circuit has emphasized that such circumstances evince a lack of diligence that preclude a finding of good cause. In Sosa , the Eleventh Circuit held that a plaintiff who had full knowledge of the information used as a basis for a motion to add a party before the deadline passed demonstrated a lack of diligence. Sosa , 133 F.3d at 1418. There is no question here that Plaintiff had the information and demonstrated a lack of diligence. If the party was not diligent, the good cause inquiry should end. Oravec , 527 F.3d at 1232 (quoting Johnson v. Mammoth Recreations, inc. , 975 F.2d 604, 609 (9th Cir. 1992) ). Accordingly, the Court finds the Plaintiff fails to establish good cause for the delay in filing this motion to add a named plaintiff. 2. Adding the Avicultural Society is Futile
Even if the Court finds good cause, adding the Avicultural Society as a plaintiff is futile for various reasons. As a plaintiff, the Avicultural Society must comply with 28 U.S.C. § 1391(e)(1) and it cannot do so. 28 U.S.C. § 1391(e)(1)(C) allows the Avicultural Society to bring a claim against a federal agency or an officer or employee of the United States in the district in which the plaintiff resides. The Eleventh Circuit held that under 28 U.S.C. § 1391(e), a corporate plaintiff resides only in the state in which it is incorporated. Flowers Indus. Inc. v. Fed. Trade Comm'n , 835 F.2d 775, 777 (11th Cir. 1987). The Avicultural Society is incorporated in California. Therefore, any claims brought by the Avicultural Society would be subject to dismissal under Federal Rule of Civil Procedure 12(b)(3) for improper venue.
Plaintiff, the Organization of Aviculturists, argues that since it is also a plaintiff based in Florida, venue is proper here irrespective of the Avicultural Society's place of incorporation. Because the Organization of Aviculturists lacks standing, granting this motion would amount to the Court swapping plaintiffs. The Avicultural Society would basically be substituted in as the plaintiff in this action. This would render venue improper here since the sole plaintiff is a California corporation.
Adding the Avicultural Society is also futile because it must establish its standing as to each claim in the complaint. Like the Plaintiff in this case, the Avicultural Society has not identified any member, who owns or breeds specimens of 46 of the 47 species of migratory birds that are the subject of the complaint's claims. See JW by & through Tammy Williams v. Birmingham Bd. of Educ. , 904 F.3d 1248, 1264 (11th Cir. 2018) ("Because standing ‘is not dispensed in gross,’ a ‘plaintiff must demonstrate standing for each claim and for each form of relief that is sought.’ ") (citing Town of Chester , 137 S. Ct. at 1650 ).
Like the Organization of Professional Aviculturists, the Avicultural Society cannot rely on an associational standing theory for a takings claim since the impact of a taking will vary from member to member, thereby requiring the individual members’ participation in the suit. See e.g. , Greater Atlanta Home Builders Ass'n, 149 F. App'x at 848 (citing Ga. Cemetery Ass'n , 353 F.3d at 1319 ) (organization did not establish injury in fact or third component of associational standing). The Avicultural Society also has not asserted that it owns specimens of the 47 birds at issue. Cavin v. United States , 956 F.2d 1131, 1134 (Fed. Cir. 1992) ("Without undisputed ownership of the ... property [at issue] at the time of the takings, the [plaintiffs] cannot maintain a suit alleging that the Government took their property without just compensation.").
Even if the claim is characterized as one for declaratory judgment, there is no jurisdiction over the takings claim. Compensation for a taking may be obtained under the Tucker Act, which confers jurisdiction on the United States Court of Claims. 28 U.S.C. § 1491. If a Tucker Act remedy is available, then a plaintiff must first avail itself of the process provided by the act and file suit in the Court of Claims for compensation. Preseault , 494 U.S. at 11-12, 110 S.Ct. 914. A Tucker Act remedy is available unless Congress provides otherwise. Id. at 12, 110 S.Ct. 914. The Migratory Bird Treaty Act does not provide an alternative remedy. Therefore, the U.S. Court of Federal Claims possesses jurisdiction over the takings claim irrespective of whether the claim is brought by the Organization of Professional Aviculturists or the Avicultural Society. 3. Federal Rule of Civil Procedure 21
Rule 21 is not a means to circumvent jurisdiction. "Adding a party midstream can alter the character of the litigation in material ways, causing a plaintiff or defendant to adjust their theory of the case, file additional or different motions, or modify their legal strategy" but also the use of Rule 21 to secure a court's jurisdiction is not proper. Bain v. Cal. Tchrs. Ass'n , 891 F.3d 1206, 1215 (9th Cir. 2018) (" Rule 21 is not designed to swap in new plaintiffs for the sake of securing a judicial determination on the merits where the original plaintiffs no longer have a stake in the outcome."). The addition of a plaintiff at this late stage does not change whether the Plaintiff had standing to bring the claims in the complaint when it filed the case. See Focus on the Fam. v. Pinellas Suncoast Transit Auth. , 344 F.3d 1263, 1275 (11th Cir. 2003) (stating that "Article III standing must be determined as of the time at which the plaintiff's complaint is filed."). If the Court lacks jurisdiction over the case because the Plaintiff lacks standing, as is the case here, then the case is not justiciable. The Court will not use Rule 21 to circumvent the longstanding "case or controversy" requirement.
DONE AND ORDERED in Chambers at Miami, Florida, this 30th of September 2021.