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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NORTH DAKOTA NORTHEASTERN DIVISION Amber Annis, Lisa Casarez, William Crawford, Sierra Davis, Robert Rainbow, Margaret Scott, Franklin Sage, and Janie Schroeder, ) ) ) MOTION TO DISMISS ) COMPLAINT ) Plaintiffs, ) ) vs. ) Case No. 2:11-cv-00073-RRE-KKK ) Jack Dalrymple, in his official and ) individual capacities, Wayne Stenehjem, in ) his official capacity, North Dakota Board ) of Higher Education, the University of North ) Dakota, and the State of North Dakota, ) ) Defendants. ) Defendants, by and through their counsel, move for dismissal of Plaintiffs Complaint under Rule 12(b)(1), (6) of the Federal Rules of Civil Procedure. This motion is made on the grounds the Plaintiffs lack standing to bring one or more of the claims and the Complaint fails to state a claim. This motion is supported by the Memorandum in Support of Motion to Dismiss and all documents on file with this Court. Defendants respectfully request that this Court grant their Motion to Dismiss and dismiss all claims against them with prejudice. Dated this 2nd day of September, 2011. State of North Dakota Wayne Stenehjem Attorney General By: /s/ Douglas A. Bahr Douglas A. Bahr Solicitor General State Bar ID No. 04940 Office of Attorney General 500 North 9th Street Bismarck, ND 58501-4509 Telephone (701) 328-3640 Facsimile (701) 328-4300

Attorneys for Defendants.

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CERTIFICATE OF SERVICE CASE NO. 2:11-cv-00073-RRE-KKK I hereby certify that on September 2, 2011, the following document: STATE DEFENDANTS MOTION TO DISMISS COMPLAINT was filed electronically with the Clerk of Court through ECF and that ECF will send a Notice of Electronic Filing (NEF) to Carla Fredericks, Sanford P. Dumain, Peter Safirstein, Roland Riggs, and Thomas W. Fredericks. /s/ Douglas A. Bahr Douglas A. Bahr Solicitor General
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NORTH DAKOTA NORTHEASTERN DIVISION ) ) ) ) ) Plaintiffs, ) ) vs. ) Case No. 2:11-cv-00073-RRE-KKK ) Jack Dalrymple, in his official and ) individual capacities, Wayne Stenehjem, in ) his official capacity, North Dakota Board ) of Higher Education, the University of North ) Dakota, and the State of North Dakota, ) ) Defendants. ) Amber Annis, Lisa Casarez, William Crawford, Sierra Davis, Robert Rainbow, Margaret Scott, Franklin Sage, and Janie Schroeder,

_________________________________________________ MEMORANDUM IN SUPPORT OF MOTION TO DISMISS COMPLAINT _________________________________________________ State of North Dakota Wayne Stenehjem Attorney at Law

By:

Douglas A. Bahr Solicitor General State Bar ID No. 04940 Office of Attorney General 500 North 9th Street Bismarck, ND 58501-4509 Telephone (701) 328-3640 Facsimile (701) 328-4300

Attorneys for Defendants.

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TABLE OF CONTENTS AND AUTHORITIES Page(s) Statement of the Case..................................................................................................... 1 28 U.S.C. 1738 .................................................................................................. 1 42 U.S.C. 1983 .................................................................................................. 1 N.D.C.C. ch. 14-02.4 ........................................................................................... 1 N.D.C.C. 15-10-46 ............................................................................................. 1 Fed. R. Civ. P. 12(b)(1) ........................................................................................ 1 Fed. R. Civ. P. 12(b)(6) ........................................................................................ 1 Factual Allegations .......................................................................................................... 1 N.D.C.C. 15-10-46 .......................................................................................... 1-2 Argument ......................................................................................................................... 2 I. A Complaint must plead facts that state a claim ................................................... 2 Coleman v. Watt, 40 F.3d 255 (8th Cir. 1994) ......................................................................... 2 Benton v. Merrill Lynch & Co., 524 F.3d 866 (8th Cir. 2008) ....................................................................... 2 Sellers ex rel. Sellers v. Baer, 28 F.3d 895 (8th Cir. 1994) ......................................................................... 2 Martin v. Sargent, 780 F.2d 1334 (8th Cir. 1985) ..................................................................... 2 Johnson v. Stark, 717 F.2d 1550 (8th Cir. 1983) ..................................................................... 2 Iowa Health Sys. v. Trinity Health Corp., 177 F. Supp. 2d 897 (N.D. Iowa 2001) ...................................................... 2 Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009)............................................................................ 2-3

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Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)................................................................................... 3 Fed. R. Civ. P. 8(a)(2) .......................................................................................... 3 II. N.D.C.C. 15-10-46 is not an ex post facto law. .................................................. 3 N.D.C.C. 15-10-46 ............................................................................................. 3 U.S. Const. art. I, 9, cl. 3.................................................................................... 4 United States v. Sidney, No. 11-1216, 2011 WL 3477200 (8th Cir. Aug. 10, 2011) ........................... 4 Doe v. Miller, 405 F.3d 700 (8th Cir. 2005) ....................................................................... 4 Burr v. Snider, 234 F.3d 1052 (8th Cir. 2000) ..................................................................... 4 Smith v. Doe, 538 U.S. 84 (2003)..................................................................................... 4 Hudson v. United States, 522 U.S. 93 (1997)..................................................................................... 4 United States v. Pfeifer, 371 F.3d 430 (8th Cir. 2004) ....................................................................... 4 N.D.C.C. 15-10-46 .......................................................................................... 4-5 III. Count I fails to state a claim upon which relief can be granted ............................. 5 28 U.S.C. 1738 .................................................................................................. 5 N.D.C.C. 15-10-46 ............................................................................................. 5 A. 28 U.S.C. 1738 does not create a cause of action .................................. 5 28 U.S.C. 1738 .................................................................................... 5-6 Miccosukee Tribe of Indians v. Kraus-Anderson Constr. Co., 607 F.3d 1268 (11th Cir. 2010) cert. denied, 131 S. Ct. 3022 (2011) ............................................... 5

ii

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Hazen Research, Inc. v. Omega Minerals, Inc., 497 F.2d 151 (5th Cir. 1974) ............................................................ 5 B. Plaintiffs lack standing to enforce the Agreement or subsequent judgment................................................................................. 6 1. Standing is a jurisdictional requirement .................................................6 DaimlerChrysler Corp. v. Cuno, 547 U.S. 332 (2006) .......................................................... 6-7 Raines v. Byrd, 521 U.S. 811 (1997) ............................................................. 6 Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1 (2004) ................................................................. 6 U.S. Const. art. III, 2, cl. 1 ............................................................ 6 Steel Co. v. Citizens for a Better Envt, 523 U.S. 83 (1998) ............................................................... 6 Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464 (1982) ............................................................. 6 Flast v. Cohen, 392 U.S. 83 (1968) ............................................................... 6 Gardner v. First Am. Title Ins. Co., 294 F.3d 991 (8th Cir. 2002) ................................................. 6 Warth v. Seldin, 422 U.S. 490 (1975) ............................................................. 7 City of Clarkson Valley v. Mineta, 495 F.3d 567 (8th Cir. 2007) ................................................. 7 Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ............................................................. 7 Faibisch v. Univ. of Minn., 304 F.3d 797 (8th Cir. 2002) ................................................. 7 Linda R.S. v. Richard D., 410 U.S. 614 (1973) ............................................................. 7

iii

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Potthoff v. Morin, 245 F.3d 710 (8th Cir. 2001) ................................................. 7 Hein v. Freedom From Religion Found., Inc., 551 U.S. 587 (2007) .......................................................... 7-8 Allen v. Wright, 468 U.S. 737 (1984) ............................................................. 8 2. 3. Plaintiffs are not parties to the Agreement ...................................... 8 Plaintiffs are not intended third-party beneficiaries of the Agreement................................................................................. 8 N.D.C.C. 9-02-04 ...................................................................... 8-9 Apache Corp. v. MDU Res. Group, Inc., 1999 ND 247, 603 N.W.2d 891 ......................................... 8-9 Peoples State Bank of Truman, Inc. v. Molstad Excavating, Inc., 2006 ND 183, 721 N.W.2d 43 ......................................... 9-10 O'Connell v. Entmt Enters., Inc., 317 N.W.2d 385 (N.D.1982) ................................................. 9 First Fed. Sav. & Loan Ass'n v. Compass Invs., Inc., 342 N.W.2d 214 (N.D. 1983) .............................................. 10 Dvorak v. Amer. Family Mut. Ins., 508 N.W.2d 329 (N.D. 1993) .............................................. 10 North v. Transcor Am., Inc., No. CIV A3-00-72, 2000 WL 33340296 (D.N.D. Dec. 29, 2000) .................................................................... 10 Hellman v. Thiele, 413 N.W.2d 321 (N.D. 1987) .............................................. 10 C. N.D.C.C. 15-10-46 does not violate any state court order .................... 11 Davidson v. State ex rel. N.D. State Bd. of Higher Educ., 781 N.W.2d 72 (N.D. 2010)........................................................... 12 N.D.C.C. 15-10-46 ................................................................................ 13 28 U.S.C. 1738 ..................................................................................... 13 iv

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IV.

Count III fails to state a claim upon which relief can be granted ......................... 13 N.D.C.C. ch. 14-02.4 .......................................................................................... 13 N.D.C.C. 14-02.4-19(1).................................................................................... 13

V.

Count II fails to state a claim upon which relief can be granted .......................... 13 N.D.C.C. 15-10-46 ........................................................................................... 13 A. Count II is against Wayne Stenehjem and Jack Dalrymple...................... 13 N.D. Const. art. VIII, 6 ........................................................................... 14 N.D. Const. art. VIII, 5 ........................................................................... 14 Leadbetter v. Rose, 467 N.W.2d 431 (N.D. 1991), overruled on other grounds by, Bulman v. Hulstrand Constr. Co., 521 N.W.2d 632 (N.D. 1994)......................................................... 14 Skjervem v. Minot State Univ., 658 N.W.2d 750 (N.D. 2003)......................................................... 14 B. A valid 1983 action requires the defendant to have personally violated the plaintiffs federal rights......................................... 14 42 U.S.C. 1983 ..................................................................................... 14 Temple v. Dahm, 905 F. Supp. 670 (D. Neb. 1995) .................................................. 14 Martin v. Sargent, 780 F.2d 1334 (8th Cir. 1985) ........................................................ 14 Jensen v. Satran, 633 F. Supp. 1187 (D.N.D. 1986), affd, 808 F.2d 840 (8th Cir. 1986) ................................................. 14 Bass v. Jackson, 790 F.2d 260 (2d Cir. 1986) .......................................................... 15

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C.

The Complaint does not allege Wayne Stenehjem or Jack Dalrymple personally deprived Plaintiffs of a constitutional right .......................................................................................................... 15 Nix v. Norman, 879 F.2d 429 (8th Cir. 1989) .......................................................... 16 Frank v. Relin, 1 F.3d 1317 (2d Cir. 1993) ............................................................ 16 Feit v. Ward, 886 F.2d 848 (7th Cir. 1989) .......................................................... 16 N.D.C.C. 15-10-46 ........................................................................... 16-17 Shell Oil Co. v. Noel, 608 F.2d 208, 211 (1st Cir. 1979) .................................................. 16 Waste Mgmt. Holdings, Inc. v. Gilmore, 252 F.3d 316 (4th Cir. 2001) .......................................................... 16 Childrens Healthcare is a Legal Duty, Inc. v. Deters, 92 F.3d 1412 (6th Cir. 1996) .......................................................... 17 Sweat v. Hull, 200 F. Supp. 2d 1162 (D. Ariz. 2001)............................................ 17 42 U.S.C. 1983 ..................................................................................... 17 Ebmeier v. Stump, 70 F.3d 1012 (8th Cir. 1995) .......................................................... 17 N.D.C.C. ch. 14-02.4................................................................................ 17

VI.

Plaintiffs state constitutional claim should not be heard by this Court................................................................................................................... 18 N.D.C.C. 15-10-46 ........................................................................................... 18 A. Plaintiffs lack standing to challenge the constitutionality of N.D.C.C. 15-10-46 ................................................................................ 18 N.D.C.C. 15-10-46 ................................................................................ 18 B. The Court should not exercise supplemental jurisdiction over Plaintiffs state constitutional challenge .................................................... 18

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28 U.S.C. 1367(a) ................................................................................. 18 28 U.S.C. 1367 ..................................................................................... 18 United Mine Workers of America v. Gibbs, 383 U.S. 715 (1966) ................................................................. 18-19 28 U.S.C. 1367(c)(1) ............................................................................. 19 Fielder v. Credit Acceptance Corp., 188 F.3d 1031 (8th Cir. 1999) ........................................................ 19 28 U.S.C. 1367(c)(2) ............................................................................. 20 28 U.S.C. 1367(c)(3) ............................................................................. 20 N.D.C.C. 15-10-46 ................................................................................ 20 28 U.S.C. 1367(c)(4) ............................................................................. 20 Conclusion .................................................................................................................... 21

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STATEMENT OF THE CASE Plaintiffs filed a Complaint naming as Defendants Jack Dalrymple, in his official and individual capacities, Wayne Stenehjem, in his official capacity, the North Dakota Board of Higher Education (Board), the University of North Dakota (UND), and the State of North Dakota (State). The Complaint purports to bring claims under 28 U.S.C. 1738,

42 U.S.C. 1983, and N.D.C.C. ch. 14-02.4. Doc. 1 47-61. The Complaint seeks declaratory and injunctive relief, including a declaration that N.D.C.C. 15-10-46 is void and unenforceable and an order directing the Board and UND to retire the Fighting Sioux nickname and logo. Id. 1, 51, 56, 66, p. 15. Defendants move to dismiss the Complaint under Rule 12(b)(1), (6) of the Federal Rules of Civil Procedure. memorandum is in support of that motion. FACTUAL ALLEGATIONS The Complaint stems from the passage of N.D.C.C. 15-10-46. Doc. 1 1, 43. There are two key factual allegations relevant to the Complaint and pending motion, neither of which the State disputes. The first of the two key factual allegations is that the 2011 North Dakota Legislative Assembly passed N.D.C.C. 15-10-46. That law provides: The intercollegiate athletic teams sponsored by the university of North Dakota shall be known as the university of North Dakota fighting Sioux. Neither the university of North Dakota nor the state board of higher education may take any action to discontinue the use of the fighting Sioux nickname or the fighting Sioux logo in use on January 1, 2011. Any actions taken by the state board of higher education and the university of North Dakota before August 1, 2011, to discontinue the use of the fighting Sioux nickname and logo are preempted by this section. If the national collegiate athletic association takes any action to penalize the university of North Dakota for using the fighting Sioux nickname or logo, the attorney 1 This

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general shall consider filing a federal antitrust claim against that association. Id. The second key factual allegation is that the Board and UND entered into a settlement with the National Collegiate Athletic Association (NCAA) settling an action commenced by the State against the NCAA. Attachment 1. ARGUMENT I. A Complaint must plead facts that state a claim. A complaint must be dismissed for failure to state a claim if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Coleman v. Watt, 40 F.3d 255, 258 (8th Cir. 1994). When The Agreement is attached as

considering a motion to dismiss, the complaint should be construed in a light most favorable to the plaintiff, and the material allegations in the complaint are taken as true. Id. To survive a motion to dismiss, however, a complaint must plead facts that, if true, state a claim as a matter of law. Conclusory allegations are not sufficient. See Benton v. Merrill Lynch & Co., 524 F.3d 866, 870 (8th Cir. 2008); Sellers ex rel. Sellers v. Baer, 28 F.3d 895, 900 (8th Cir. 1994); Martin v. Sargent, 780 F.2d 1334, 1337 (8th Cir. 1985); Johnson v. Stark, 717 F.2d 1550, 1552 (8th Cir. 1983); Iowa Health Sys. v. Trinity Health Corp., 177 F. Supp. 2d 897, 909 (N.D. Iowa 2001). The minimal pleading requirements were reviewed by the United States Supreme Court in Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009). In Iqbal, the Court explained the Rule 8 pleading standard demands more than an unadorned, the-defendant-unlawfullyharmed-me accusation. Id. at 1949. A pleading that offers labels and conclusions or 2

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a formulaic recitation of the elements of a cause of action will not do. Nor does a complaint suffice if it tenders naked assertion[s] devoid of further factual enhancement. Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 557 (2007)). Rather, as explained by the Supreme Court: To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. 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. 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. Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief. Id. (quoting Twombly, 550 U.S. at 556, 557, 570). The Supreme Court reiterated the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. Id. It also emphasized that only a complaint that states a plausible claim for relief survives a motion to dismiss, and that where 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. Id. at 1950 (quoting Fed. R. Civ. P. 8(a)(2)). II. N.D.C.C. 15-10-46 is not an ex post facto law. Although not stated as a separate count, the Complaint asserts N.D.C.C. 15-10-46 is an ex post facto law. Doc. 1 45, 65. Because of the well-settled case law to the contrary, that assertion deserves only short shrift. 3

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The Ex Post Facto Clause forbids the application of any law that increases punishment to preexisting criminal conduct. See U.S. Const. art. I, 9, cl. 3; United States v. Sidney, No. 11-1216, 2011 WL 3477200, at *4 (8th Cir. Aug. 10, 2011); Doe v. Miller, 405 F.3d 700, 718 (8th Cir. 2005). The Ex Post Facto Clause applies only in the criminal context. See Burr v. Snider, 234 F.3d 1052, 1054 (8th Cir. 2000). However, a civil statute may be so punitive, either in purpose or effect, as to implicate the Ex Post Facto clause. But only the clearest proof will suffice to override legislative intent and transform what has been denominated a civil remedy into a criminal penalty. Smith v. Doe, 538 U.S. 84, 92 (2003) (quoting Hudson v. United States, 522 U.S. 93, 100 (1997)). Finally, a statute only violates the Ex Post Facto Clause if it applies to events occurring before its enactment and alters the definition of criminal conduct or increases the punishment for a crime. United States v. Pfeifer, 371 F.3d 430, 436 (8th Cir. 2004). Of course, N.D.C.C. 15-10-46 does not meet any of these requirements. N.D.C.C. 15-10-46 is not a criminal law. Furthermore, it does not impose any civil remedies, much less civil remedies so punitive that it actually imposes a criminallike penalty. N.D.C.C. 15-10-46 imposes no penalty on anyone; it simply establishes legislative policy regarding the use of the Fighting Sioux nickname and logo.1 Finally, because N.D.C.C. 15-10-46 imposes no penalties, it obviously does not make past

Contrary to Plaintiffs allegation, N.D.C.C. 15-10-46 does not seek to punish the NCAA for past conduct; it simply establishes legislative policy regarding the use of the Fighting Sioux nickname and logo. N.D.C.C. 15-10-46 imposes no penalty or sanction on the NCAA for past or future conduct. Furthermore, to the extent Plaintiffs allege N.D.C.C. 15-10-46 seeks to punish the NCAA for past conduct, they lack standing to raise the issue. 4

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conduct criminal or alter the punishment for past crimes. Simply put, the Ex Post Facto Clause has no application to N.D.C.C. 15-10-46. III. Count I fails to state a claim upon which relief can be granted. Plaintiffs purport to bring a claim under 28 U.S.C. 1738, apparently claiming N.D.C.C. 15-10-46 violates a North Dakota court order. See Doc. 1 2, 44, 48-51. But 28 U.S.C. 1738 does not create a substantive cause of action. Furthermore, Plaintiffs lack standing to bring an action under the Agreement. And, finally and most importantly, N.D.C.C. 15-10-46 does not violate a North Dakota court order. A. 28 U.S.C. 1738 does not create a cause of action.

28 U.S.C. 1738 provides that acts, records, and judicial proceedings of state courts have the same full faith and credit in every court within the United States that they have by law or usage in the state courts. By its plain language, 28 U.S.C. 1738 does not create a substantive cause of action. In fact, 28 U.S.C. 1738 does not even create an independent basis of jurisdiction in the federal courts. See Miccosukee Tribe of Indians v. Kraus-Anderson Constr. Co., 607 F.3d 1268, 1276 (11th Cir. 2010) (stating it is long established that 1738 does not, standing alone, confer jurisdiction on a federal district court to domesticate a judgment rendered by a court of another jurisdiction), cert. denied, 131 S. Ct. 3022 (2011); Hazen Research, Inc. v. Omega Minerals, Inc., 497 F.2d 151, 153 n.1 (5th Cir. 1974) (stating a claim based upon 28 U.S.C. 1738 will not alone suffice to make out a case arising under the Constitution or laws of the United States for the purpose of asserting 1331 federal question jurisdiction).

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Plaintiffs citation to 28 U.S.C. 1738 does not create a cause of action or establish federal jurisdiction over the state final judgment. Furthermore, because

Plaintiffs were not parties to the state judgment they are attempting to enforce, they are not entitled to have any court, particularly a federal court, enforce the state judgment. B. Plaintiffs lack standing to enforce the Agreement or subsequent judgment. 1. Standing is a jurisdictional requirement.

The United States Supreme Court has stated that [n]o principle is more fundamental to the judiciarys proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies. DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 341-42 (2006) (quoting Raines v. Byrd, 521 U.S. 811, 818 (1997)). Article III standing enforces the Constitutions case-orcontroversy requirement. Id. at 342 (quoting Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 11 (2004)). Article III of the Constitution confines the judicial power to the resolution of actual Cases and Controversies. U.S. Const. art. III, 2, cl. 1. That limitation is an indispensable ingredient of [the] separation and equilibration of powers, restraining the courts from acting at certain times, Steel Co. v. Citizens for a Better Envt, 523 U.S. 83, 101 (1998), and confin[ing] federal courts to a role consistent with a system of separated powers, Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 472 (1982) (quoting Flast v. Cohen, 392 U.S. 83, 97 (1968)). See also DaimlerChrysler Corp., 547 U.S. at 342; Gardner v. First Am. Title Ins. Co., 294 F.3d 991, 993 (8th Cir. 2002) (stating standing is an important constitutional and prudential limitation on the Article III jurisdiction of the federal courts). 6

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Standing is the threshold question in every federal case, determining the power of the court to entertain the suit. Warth v. Seldin, 422 U.S. 490, 498 (1975). It is the responsibility of the complainant clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute and the exercise of the court's remedial powers. Id. at 518; see also DaimlerChrysler Corp., 547 U.S. at 342 n.3. When ruling on a motion to dismiss for lack of standing, both the trial and reviewing courts must accept as true all material allegations of the complaint, and must construe the complaint in favor of the complaining party. Warth, 422 U.S. at 501. See also City of Clarkson Valley v. Mineta, 495 F.3d 567, 570 (8th Cir. 2007). If a plaintiff lacks standing, the federal court has no subject matter jurisdiction and no business deciding the case or expounding the law. See DaimlerChrysler Corp., 547 U.S. at 341; Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992); Faibisch v. Univ. of Minn., 304 F.3d 797, 801 (8th Cir. 2002). A federal court's jurisdiction . . . can be invoked only when the plaintiff himself has suffered some threatened or actual injury resulting from the putatively illegal action . . . . Warth, 422 U.S. at 499 (quoting Linda R.S. v. Richard D., 410 U.S. 614, 617 (1973)). As explained in Potthoff v. Morin, 245 F.3d 710, 715 (8th Cir. 2001): Article III of the United States Constitution confines the federal courts to adjudicating actual cases and controversies. To acquire Article III standing, a plaintiff must have a personal stake in the outcome of the controversy. To satisfy this requirement, the plaintiff must have a definite and concrete controversy involving adverse legal interests at every stage in the litigation . . . for which the court can grant specific and conclusive relief. (Citations omitted); see also Hein v. Freedom From Religion Found., Inc., 551 U.S. 587, 598 (2007) (The requisite elements of Article III standing are well established: A 7

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plaintiff must allege personal injury fairly traceable to the defendants allegedly unlawful conduct and likely to be redressed by the requested relief. (quoting Allen v. Wright, 468 U.S. 737, 751 (1984))). Because Plaintiffs are not parties to or third-party beneficiaries of the Agreement, they lack standing to bring a claim under the Agreement or seek the requested injunctive relief as to the Agreement or subsequent judgment. 2. Plaintiffs are not parties to the Agreement.

The Agreement is between the Board and the NCAA. The lawsuit settled by the Agreement was between the Board and the NCAA. Plaintiffs were not parties to the lawsuit, nor are they parties to the Agreement settling the lawsuit. This is evidenced by the caption of the Agreement and the first paragraph of the Agreement, which states: This Settlement Agreement and Mutual Release (Agreement) is entered into between the State of North Dakota, acting by and through the North Dakota State Board of Higher Education and the University of North Dakota (UND), and the National Collegiate Athletic Association (NCAA). Attach. 1, p. 1. In fact, Plaintiffs do not claim to be parties to the Agreement. 3. Plaintiffs are not intended third-party beneficiaries of the Agreement.

Under North Dakota law, a contract made expressly for the benefit of a third person may be enforced by that person at any time before the parties thereto rescind it. N.D.C.C. 9-02-04 (emphasis added). To enforce a contract between two others, a third party must have been intended by the contracting parties to be benefited by the contract. Apache Corp. v. MDU Res. Group, Inc., 1999 ND 247, 10, 603 N.W.2d 891. 8

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To determine whether the contract at issue was made expressly for the third party's benefit, we must look to the intentions of the parties to the contract. Peoples State Bank of Truman, Inc. v. Molstad Excavating, Inc., 2006 ND 183, 20, 721 N.W.2d 43 (quoting O'Connell v. Entmt Enters., Inc., 317 N.W.2d 385, 388 (N.D.1982)). The intentions of the parties to a contract must be ascertained from the written contract alone, if possible. O'Connell, 317 N.W.2d at 388. Merely because a third party may derive a benefit, purely incidental and not contemplated by the contracting parties, from the performance of a contract does not entitle him to sue to enforce the contract. Apache Corp., 1999 ND 247, 10, 603 N.W.2d 891. The Agreement was not made expressly for the benefit of Plaintiffs. N.D.C.C. 9-02-04. Plaintiffs are not mentioned in the Agreement, and there is nothing in the Agreement that evidences the Board or the NCAA intended individual UND students or individual tribal members to benefit from the Agreement. The express intent of the Agreement was to settle the lawsuit between the Board and the NCAA. Attach. 1, pp. 1-2. Nothing in the Agreement evidences intent by the parties to confer any rights on any individuals. A whereas clause in the Agreement mentions the North Dakota Sioux Tribes.2 But the clause says nothing about individual tribal members. However, even if it could be construed that broadly, the mention of one's name in an agreement does not give
2

The clause states: WHEREAS, UND recognizes that North Dakota Sioux Tribes, as the descendants of the indigenous people of the Northern Great Plains who UND strives to honor with its nickname, have important contributions in determining whether, to what extent and in what manner the Sioux name and the Fighting Sioux nickname or logo should continue to be used in conjunction with the athletic tradition at UND. Attach. 1, p. 2. 9

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rise to a right to sue for enforcement of the agreement where that person is only incidentally benefited . . . . First Fed. Sav. & Loan Ass'n v. Compass Invs., Inc., 342 N.W.2d 214, 218 (N.D. 1983). A plain reading of the terms of the Agreement evidences the parties did not intend to confer an enforceable benefit on Plaintiffs. See Dvorak v. Amer. Family Mut. Ins., 508 N.W.2d 329, 331 (N.D. 1993) (distinguishing between a contract that expressly gave the right to bring a claim and one that provided no contractual right to sue). All contracts entered into by the State intend to benefit its citizens. That does not make all citizens third-party beneficiaries to all State contracts. A third party can

enforce a state contract only if the contract is expressly for the benefit of the third party. See, e.g., North v. Transcor Am., Inc., No. CIV A3-00-72, 2000 WL 33340296, at

*3 (D.N.D. Dec. 29, 2000) (holding North Dakota citizen is not a third party beneficiary to contract between the State and private transportation company regarding transportation of prisoner). Although Plaintiffs may be incidentally benefited by the Agreement, that does not entitle them to maintain an action to enforce it. Hellman v. Thiele, 413

N.W.2d 321, 325 (N.D. 1987); see also Peoples State Bank, 2006 ND 183, 21, 721 N.W.2d 43 (Because the contracting parties did not expressly intend to benefit the third party, this party was merely an incidental beneficiary to the contract and could not prevail in an action under the contract against the two contracting parties.). Because Plaintiffs are neither parties to nor third-party beneficiaries of the Agreement (nor parties to the subsequent litigation), they lack standing to bring an action based on the Agreement or any judgment regarding the Agreement.

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C.

N.D.C.C. 15-10-46 does not violate any state court order.

This entire claim is based on Plaintiffs misreading of the Agreement. Contrary to Plaintiffs assertion, see Doc. 1 26, the Agreement does not mandate UND retire the nickname and logo if it cannot secure approval of both Tribes by November 30, 2010. Not only is that reading of the Agreement contrary to its plain language, it ignores the North Dakota Supreme Courts specific holding to the contrary. The Agreement is between the Board and the NCAA. Attach. 1, p. 1. The

purpose of the Agreement was to settle the lawsuit brought by the Board against the NCAA. Id. at 1-2. The lawsuit concerned the NCAAs promulgation of its policy

regarding the display of Native American nicknames, mascots and imagery (the Policy), and application of the Policy to UND. Id. at 1-2. Under the Agreement, the NCAA agreed that UND will be provided a period of time until November 30, 2010 (the Approval Period), to seek and obtain namesake approval for its nickname and related imagery, during which time the [NCAAs] Policy will not apply to UND and UND will not be restricted from hosting and bidding to host championship events for which it otherwise would be eligible to host. Id. at 3. Thus, by entering into the Agreement, the NCAA agreed it would not apply its Policy to UND during the Approval Period. By entering into the Agreement, the Board agreed that, within 30 days of entering into the Agreement, UND would announce that its Athletic Department will transition to a new nickname and logo which do not violate the Policy or render UND subject to the Policy, if (i) it is unable to secure namesake approval as set forth in this Agreement prior to the expiration of the Approval Period, or (ii) namesake approval, once provided, is 11

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withdrawn. Id. at 5. It also agreed that, [i]n the event UND announces a transition to a new nickname and logo which do not violate the Policy, the transition will be completed on or before August 15, 2011 . . . . Id. Finally, and significantly, the Agreement provides that UND will be subject to the NCAA Policy if UND fails to obtain namesake approval and then does not adopt or timely transition to a new nickname and logo. Id. Thus, the Agreement specifically acknowledges that, even absent namesake approval, the Board could nonetheless choose to continue using the nickname and logo. Under that circumstance, however, UND will be subject to the Policy after the Approval Period. Simply summarized, the Agreement gave UND a grace period during which the NCAA Policy would not apply so the Board could seek namesake approval. The

Agreement binds the NCAA to not apply its Policy to UND until the end of the Approval Period. UND agreed the NCAA Policy will apply to it after the Approval Period if it continues to use the nickname and logo without namesake approval. The North Dakota Supreme Court interpreted the Agreement in this manner in Davidson v. State ex rel. N.D. State Bd. of Higher Educ., 781 N.W.2d 72 (N.D. 2010). The court explained: The purpose of the settlement agreement was to end a lawsuit by the Board and UND against the NCAA regarding the NCAA's promulgation of the policy for displaying hostile and abusive racial or ethnic nicknames, logos, and imagery and the NCAA's application of that policy to UND. The plain language of the settlement agreement does not restrict the Board's constitutional and statutory authority to change UND's nickname and logo, and we agree with the district court that nothing in the plain language of the settlement agreement limits the Board's constitutional and statutory authority, or requires the Board or UND to continue using the nickname and logo throughout the approval period. Neither does the settlement agreement require the Board and UND to change the nickname and logo. Rather, if UND does not obtain namesake approval from the two tribes, the Board and UND agreed to either change the nickname and logo, or be subjected to the NCAA policy. 12

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Id. at 77 (emphasis added). Because the Agreement, as interpreted by the North Dakota Supreme Court, does not require the Board to change the nickname and logo, Plaintiffs assertion N.D.C.C. 15-10-46 violates a state court order fails as a matter of law. Count I of the Complaint should be dismissed because 28 U.S.C. 1738 does not create a substantive cause of action, Plaintiffs lack standing to bring an action under the Agreement and subsequent judgment, and N.D.C.C. 15-10-46 does not violate a North Dakota court order. IV. Count III fails to state a claim upon which relief can be granted. Plaintiffs attempt to bring an action under N.D.C.C. ch. 14-02.4, known as the North Dakota Human Rights Act. Yet N.D.C.C. 14-02.4-19(1) limits jurisdiction of claims under N.D.C.C. ch. 14-02.4 to the North Dakota Department of Labor or a state district court. Because state law does not grant this Court jurisdiction of claims under N.D.C.C. ch. 14-02.4, this Court lacks jurisdiction of Plaintiffs claims under N.D.C.C. ch. 14-02.4 and should dismiss those claims. V. Count II fails to state a claim upon which relief can be granted. Count II asserts a 1983 claim based on the allegation N.D.C.C. 15-10-46 violates the Fourteenth Amendment. See Doc. 1 54, 63. Count II fails to state a claim upon which relief can be granted for multiple reasons. A. Count II is against Wayne Stenehjem and Jack Dalrymple.

The Complaint acknowledges Count II is not against the State. See Doc. 1, p. 13. Although not specifically stated in the Complaint, the Complaint further 13

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acknowledges the Board and UND are the State. See Doc. 1 17, 18. That the Board and UND are the State is confirmed by the North Dakota Constitution and case law. See N.D. Const. art. VIII, 6 (creating the Board); N.D. Const. art. VIII, 5 (providing universities are under the control of the State); Leadbetter v. Rose, 467 N.W.2d 431, 433-34 (N.D. 1991) (explain [t]he State Board of Higher Education is a part of the executive branch of government and that UND is an arm of the State), overruled on other grounds by, Bulman v. Hulstrand Constr. Co., 521 N.W.2d 632 (N.D. 1994); Skjervem v. Minot State Univ., 658 N.W.2d 750, 753 (N.D. 2003) (stating MSU is an arm of the State). Because Count II is not against the State, including the Board and UND, it is against Wayne Stenehjem and Jack Dalrymple, the only remaining defendants. The Complaint, however, fails to state a claim against them. B. A valid 1983 action requires the defendant to have personally violated the plaintiffs federal rights.

A valid 1983 action requires the government employee to have, acting under color of state law, deprived the plaintiff of a right guaranteed by the Constitution or laws of the United States. 42 U.S.C. 1983. To be liable under 1983, the individual defendant must be personally responsible for a deprivation of the constitutional right, i.e., the defendant must have done some affirmative act, participated in the affirmative act of another, or failed to perform an act which resulted in the deprivation of plaintiffs federally protected rights. Temple v. Dahm, 905 F. Supp. 670, 672 (D. Neb. 1995); see also Martin, 780 F.2d at 1338; Jensen v. Satran, 633 F. Supp. 1187, 1189 (D.N.D. 1986), affd, 808 F.2d 840 (8th Cir. 1986). The personal involvement of a defendant 14

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named in a 1983 claim must be pleaded with specific factual support. Jackson, 790 F.2d 260, 263 (2d Cir. 1986). C.

Bass v.

The Complaint does not allege Wayne Stenehjem or Jack Dalrymple personally deprived Plaintiffs of a constitutional right.

The only factual allegation against Wayne Stenehjem is that he is the North Dakota Attorney General. See Doc. 1 15. It should go without saying that Wayne Stenehjems serving as the North Dakota Attorney General does not deprive Plaintiffs of a federal constitutional right. The Complaint in no way, factually or legally, explains why Wayne Stenehjem is named as a defendant or is alleged to have deprived Plaintiffs of a constitutional right. Because the Complaint does not plead facts that, if true, would state a viable 1983 claim against Wayne Stenehjem, the Complaint fails to state a viable claim against him. Similarly, the Complaint makes no factual allegations against Jack Dalrymple in his individual capacity. The only allegation against Jack Dalrymple is that he is the Governor of North Dakota and signed the challenged legislation into law. See Doc. 1 14, 43. Signing the legislation into law, of course, was done in Jack Dalrymples official, not individual, capacity. The Complaint in no way, factually or legally, explains why Jack Dalrymple is named in his individual capacity or what he alleged did in his individual capacity to deprive Plaintiffs of a constitutional right. Because the Complaint does not plead any facts that, if true, would state a viable 1983 claim against Jack Dalrymple in his individual capacity, the Complaint fails to state a claim against Jack Dalrymple in his individual capacity.

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The Complaint also fails to state a claim against Jack Dalrymple in his individual capacity because the requested relief is not available against Jack Dalrymple in his individual capacity. The Complaint seeks injunctive relief. Injunctive relief, however, can only be granted against a government official in his official capacity. See Nix v. Norman, 879 F.2d 429, 432 (8th Cir. 1989) (explaining a state agent may be sued in his official capacity if the plaintiff merely seeks injunctive or prospective relief for a legally cognizable claim); Frank v. Relin, 1 F.3d 1317, 1327 (2d Cir. 1993) (stating equitable relief could be obtained against [defendant] only in his official, not his individual, capacity); Feit v. Ward, 886 F.2d 848, 858 (7th Cir. 1989) (Moreover, the equitable relief [the plaintiff] requests a declaration that the policy is unconstitutional and an injunction barring the defendants from implementing the policy in the future can be obtained only from the defendants in their official capacities, not as private individuals.). The Complaint also fails to state a claim against Jack Dalrymple in his official capacity. As previously noted, the only factual allegation regarding Jack Dalrymple is that he signed N.D.C.C. 15-10-46 into law. That factual allegation, however, does not state a viable 1983 action because the passage of a law, even if unconstitutional, does not by itself deprive anyone of his federal rights. It would be the enforcement of an unconstitutional law that potentially causes the deprivation. See Shell Oil Co. v. Noel, 608 F.2d 208, 211 (1st Cir. 1979) (The mere fact that a governor is under a general duty to enforce state laws does not make him a proper defendant in every action attacking the constitutionality of a state statute.); Waste Mgmt. Holdings, Inc. v. Gilmore, 252 F.3d 316, 331 (4th Cir. 2001) (holding Governors general duty to enforce the laws does not make him a proper defendant because he lacks a specific duty to 16

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enforce the challenged statutes); Childrens Healthcare is a Legal Duty, Inc. v. Deters, 92 F.3d 1412, 1416 (6th Cir. 1996) (explaining [g]eneral authority to enforce the laws of the state is not sufficient to make government officials the proper parties to litigation challenging the law); Sweat v. Hull, 200 F. Supp. 2d 1162, 1175 (D. Ariz. 2001) (holding governor not a proper defendant despite the governor's duty to uphold the state's laws and her signature on the bill because she was not specifically charged to enforce the law). Furthermore, even if the mere passage of an unconstitutional law was sufficient to deprive someone of his rights, which it is not, Plaintiffs have not asserted passage of N.D.C.C. 15-10-46 deprived them of their federal rights. As previously noted, a viable 1983 claim requires the plaintiff to have been deprived of a right guaranteed by the Constitution or laws of the United States; violations of state law are insufficient. [V]iolations of state laws, state-agency regulations, and, more particularly, state-court orders, do not by themselves state a claim under 42 U.S.C. 1983. Section 1983 guards and vindicates federal rights alone. Ebmeier v. Stump, 70 F.3d 1012, 1013 (8th Cir. 1995). The Complaint does not allege N.D.C.C. 15-10-46 violates the federal Constitution. Rather, it asserts N.D.C.C. 15-10-46 violates the North Dakota Doc. 1 2, 44, 64.

Constitution and North Dakota law, i.e., N.D.C.C. ch. 14-02.4.

Thus, even if the allegations were true, which they are not, the 1983 claim fails because violations of rights protected by state laws are inadequate to state a viable 1983 claim.

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VI.

Plaintiffs state constitutional claim should not be heard by this Court. Although not raised as a separate count, Plaintiffs ask this Court to declare that

N.D.C.C. 15-10-46 violates the North Dakota Constitution. Doc. 1 2, 44, 64. The Court should not address this issue because Plaintiffs lack standing to bring it. Alternatively, the Court should decline to exercise supplemental jurisdiction over Plaintiffs state constitutional challenge. A. Plaintiffs lack standing to challenge the constitutionality of N.D.C.C. 15-10-46.

Plaintiffs assert N.D.C.C. 15-10-46 violates the North Dakota Constitution because it encroaches on the power of the Board, i.e., that it usurps the authority granted the Board by the state Constitution. See Doc. 1 2, 44. They specifically request a declaration that N.D.C.C. 15-10-46 constitutes an improper attempt to usurp the powers granted by the North Dakota Constitution to the Board. Id. 64. Plaintiffs lack standing to bring a constitutional challenge based on the alleged infringement of the Boards state constitutional rights. Plaintiffs lack a personal stake in whether N.D.C.C. 15-10-46 usurps the powers granted the Board by the North Dakota Constitution. Accordingly, this claim should be dismissed for lack of standing. B. The Court should not exercise supplemental jurisdiction over Plaintiffs state constitutional challenge.

Generally, a federal district court has supplemental jurisdiction over "all other claims that are so related to claims in the action within [the court's] original jurisdiction that they form part of the same case or controversy . . . ." 28 U.S.C. 1367(a).

28 U.S.C. 1367, enacted in 1990, codified the Supreme Court's 1966 decision in United Mine Workers of America v. Gibbs, 383 U.S. 715 (1966), establishing the rule for 18

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deciding whether a federal court has jurisdiction over a state-law claim. Gibbs, 383 U.S. at 725 (holding [t]he state and federal claims must derive from a common nucleus of operative fact). In Gibbs, however, the Court drew a distinction between the power of a federal court to hear state-law claims and the discretionary exercise of that power. Id. at 726 (It has consistently been recognized that pendent jurisdiction is a doctrine of discretion, not of plaintiff's right.). The justification for exercise of pendent jurisdiction lies in considerations of judicial economy, convenience and fairness to litigants. Id. The Gibbs Court recognized, however, that, in the interests of comity and the promotion of justice between the parties, the courts should avoid needless decisions of state law. Id. There are multiple reasons why this Court should decline to exercise supplemental jurisdiction of the state constitutional claim. The first being the state

constitutional claim does not involve the same case or controversy as the federal claims. Rather, Plaintiffs state constitutional challenge concerns interpretation of a Thus, judicial economy is not served by the Court

state constitutional provision.

exercising supplemental jurisdiction over the state constitutional claim. Second, this Court should not make needless decisions of state law, particularly a novel and complex state constitutional law claim. See 28 U.S.C. 1367(c)(1); Fielder v. Credit Acceptance Corp., 188 F.3d 1031, 1037-38 (8th Cir. 1999) (explaining novel, complex, and important issues of state law on which state appellate courts have given little or no prior guidance are the types of issues as to which federal courts should hesitate to exercise supplemental jurisdiction). To the extent Plaintiffs want to argue a state law violates the state Constitution, comity dictates the argument be presented to 19

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the state courts, not this Court.

The North Dakota Supreme Court is the ultimate

interpreter of the North Dakota Constitution. This Court should decline to unnecessarily determine whether a state law violates the North Dakota Constitution. Furthermore, as demonstrated by the Complaint, the state constitutional claim predominates over Plaintiffs purported federal claims, another factor against exercising supplemental jurisdiction. See 28 U.S.C. 1367(c)(2). Next, this Court should decline to exercise jurisdiction of the state constitutional claim because the federal-law claims fail to state a claim and should be dismissed. Dismissal of the federal-law claims is a powerful reason to decline to exercise jurisdiction of the state constitutional claim. See 28 U.S.C. 1367(c)(3). Finally, the unique nature of N.D.C.C. 15-10-46 is a compelling reason for the Court to decline jurisdiction. See 28 U.S.C. 1367(c)(4). Passage of N.D.C.C. If the

15-10-46 was a policy decision of the North Dakota Legislative Assembly.

Board believes N.D.C.C. 15-10-46 infringes on its state constitutional powers, as argued by Plaintiffs, it is the Boards decision whether to address the issue legislatively, through the courts, or not at all. Plaintiffs should not be permitted to infringe on the Boards decision making authority by, in essence, being permitted to bring a claim on the Boards behalf.

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CONCLUSION For the above reasons, Defendants respectfully request that this Court grant their Motion to Dismiss and dismiss the claims against them with prejudice. Dated this 2nd day of September, 2011. State of North Dakota Wayne Stenehjem Attorney General By: /s/ Douglas A. Bahr Douglas A. Bahr Solicitor General State Bar ID No. 04940 Office of Attorney General 500 North 9th Street Bismarck, ND 58501-4509 Telephone (701) 328-3640 Facsimile (701) 328-4300

Attorneys for Defendants.

e:\dixie\cl\bahr\briefs\constitution.brf\annis\pleadings\mtd memo.doc

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CERTIFICATE OF SERVICE CASE NO. 2:11-cv-00073-RRE-KKK I hereby certify that on September 2, 2011, the following document: STATE DEFENDANTS MEMORANDUM IN SUPPORT OF MOTION TO DISMISS

COMPLAINT was filed electronically with the Clerk of Court through ECF and that ECF will send a Notice of Electronic Filing (NEF) to Carla Fredericks, Sanford P. Dumain, Peter Safirstein, Roland Riggs, and Thomas W. Fredericks.

/s/ Douglas A. Bahr Douglas A. Bahr Solicitor General

e:\dixie\cl\bahr\briefs\constitution.brf\annis\pleadings\mtd memo.doc

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