IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

JOANNA DYKES, et al.,

Plaintiffs,

vs. CASE NO. 4:11cv116/RS-WCS

ELIZABETH DUDEK in her

official capacity as Secretary of the 

Florida Agency for Health Care

Administration, et al., 

Defendants.

__________________________________

ORDER

Before me are the Defendants’ Motion to Dismiss for Lack of Standing (Doc. 64) 

and Plaintiffs’ Response in opposition (Doc. 70). 

Standard of Review

Rule 12(b)(1) of the Federal Rules of Civil Procedure requires dismissal of claims 

for “lack of subject-matter jurisdiction.” See FED. R. CIV. P. 12(b)(1). A motion to 

dismiss under Rule 12(b)(1) may assert either a factual attack or a facial attack to 

jurisdiction. Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252, 1260 (11th Cir. 2009)

(citations omitted). A factual attack challenges the existence of subject matter 

jurisdiction in fact, irrespective of the pleadings. Matters outside the pleadings, such as

testimony and affidavits, are considered. Id. In a facial attack, on the other hand, the 

court examines whether the complaint has sufficiently alleged subject-matter jurisdiction

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and construes the complaint in the light most favorable to Plaintiffs and accepts all facts 

alleged in the complaint as true. Id; Trimble v. United States Soc. Sec., 2010 U.S. App. 

LEXIS 4811, at *8 (11th Cir. 2010). 

Background

This is a purported class action by individuals with developmental disabilities 

who are eligible to receive Medicaid. (Doc. 30, ¶ 1). Plaintiffs receive care in one of two 

settings: in intermediate care facilities for the developmentally disabled (“ICF/DD”) or in 

the community under Florida’s Home and Community Based Services Waiver program 

(“DD Waiver”). Plaintiffs contend that Defendants have a lengthy waitlist for the DD 

Waiver program. The waiting period may exceed more than five years in some cases. Id. 

at 2-3. Plaintiffs also contend that Defendants have limited the funding for the DD 

Waiver program which results in a portion of institutionalized patients never being 

enrolled. Plaintiffs allege that Defendants’ management of the DD Waiver program 

violates the reasonable promptness provisions of the Social Security Act (“SSA”), 42 

U.S.C. § 1396(a)(8), violates the “Freedom of Choice” provisions of the SSA, 42 U.S.C. 

§ 1915(c)(2), as amended, 42 U.S.C. § 1396n(c)(2), violates the Americans with 

Disabilities Act and the Rehabilitation Act, 42 U.S.C § 12101 et seq, 29 U.S.C §794, and 

is a violation of Plaintiffs Due Process rights under the Fourteenth Amendment. 

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Analysis

Article III of the United States Constitution limits the role of the federal judiciary 

to resolving cases and controversies. Lujan v. Defenders of Wildlife, 504 U.S. 555, 559-

560, 112 S. Ct. 2130, 2136 (1992). Standing is a core component of this Article III 

requirement that must be established by litigants before a court may exercise jurisdiction 

over their claims. Id. at 560, 112 S. Ct. at 2136. The doctrine of standing requires (1)

that Plaintiff must have suffered an injury-in-fact; (2) that there must be a causal 

connection between the injury and the conduct complained of; and (3) that it must be 

likely, as opposed to merely speculative that the injury will be redressed by a favorable 

decision. Id. at 560-561, 112 S. Ct. at 2136. In order for this court to have jurisdiction 

over the claims, at least one named plaintiff must have standing for each of the claims.

Rumsfeld v. Forum for Academic & Institutional Rights, Inc., 547 U.S. 47, 53, n2 (2006)

(“The presence of one party with standing is sufficient to satisfy Article III's case-orcontroversy requirement.”). 

To support standing, general factual allegations of injury resulting from the 

Defendants’ conduct may suffice at the pleading stage. On a motion to dismiss, the court

"presume[s] that general allegations embrace those specific facts that are necessary to 

support the claim.” Lujan, at 561, 112 S. Ct. at 2137. 

Here, Defendants claim that several of the plaintiffs lack standing because they 

have not suffered an injury-in-fact. The “community plaintiffs,” Ms. Congden, Ms. 

Pivinski, Mr. Woodward, and Ms. Ferraro, reside in their communities and are not 

institutionalized. Defendants claim that the “possibility of institutionalization” is not 

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sufficient to confer standing. (Do c. 64, p.3). Defendants are correct that the injury-infact must be both “(a) concrete and particularized and (b) actual or imminent, not 

conjectural or hypothetical.” Fla. Wildlife Fed'n., Inc. v. S. Fla. Water Mgmt. Dist., 647 

F.3d 1296 (11th Cir. 2011) (citation omitted). The community plaintiffs’ injuries are 

arguably more hypothetical than those plaintiffs who are institutionalized. However, 

because those non-community plaintiffs have standing, the fate of the community 

plaintiffs is better suited for a later stage--the class certification process. 

The Motion to Dismiss (Doc. 64) is DENIED. 

ORDERED on October 3, 2011.

/S/ Richard Smoak 

RICHARD SMOAK

UNITED STATES DISTRICT JUDGE

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