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Firm E-Mail for Official Court Documents 

courtdocs@dickinsonwright.com

Scot L. Claus (#014999) 

sclaus@dickinsonwright.com

Vail C. Cloar (#032011) 

vcloar@dickinsonwright.com

Holly M. Zoe (#033333) 

hzoe@dickinsonwright.com

DICKINSON WRIGHT PLLC 

1850 North Central Avenue, Suite 1400 

Phoenix, AZ 85004-4568 

Phone: (602) 285-5000 

Fax: (844) 670-6009 

Attorneys for City Defendants 

UNITED STATES DISTRICT COURT 

DISTRICT OF ARIZONA 

The Satanic Temple and Michelle Shortt, 

 Plaintiffs, 

v. 

City of Scottsdale, Arizona, by it City Council, 

consisting of the Mayor and council members, 

WJ Jim Layne, Suzanne Klapp, Virginia Korte, 

Kathy Littlefield, Guy Phillips, and David 

Smith, 

 Defendants. 

Case No. CV 18-00621-PHX-DGC 

MOTION FOR RECONSIDERATION 

 Pursuant to LRCiv 7.2(g), Defendant the City of Scottsdale (“City”) hereby moves for 

reconsideration of the Court’s Order entered in open Court on July 16, 2019 (the “Court’s 

Order”). Specifically, reconsideration of the Court’s Order that a material question of fact exists 

and indicating that no further discovery will be permitted warrant further review due to recent 

Supreme Court authority and additional facts that have come to light.1

 The most efficient course 

 

1

 Although there may be some overlap in the reasons necessitating this Motion and the City’s 

Rule 17 Objection presented at the July 29, 2019 Status Conference (the “July 29 

Conference”), Local Rule 7.2(g)(2) required the City to file a motion for reconsideration 
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of action is to vacate the Court’s Order and to permit limited discovery on the question of 

standing. 

 This Motion is supported by the attached Memorandum of Points and Authorities. 

MEMORANDUM OF POINTS AND AUTHORITIES 

I. Introduction/Factual Background 

 On July 16, 2019, following argument on the parties’ cross-motions for summary 

judgment, the Court issued its order finding that material disputes of fact existed that precluded 

the entry of summary judgment. See July 16, 2019 Hearing Trans., attached hereto as Exhibit A 

(“Tr.”), at 31:15–40:7. 

 The Court’s Order does two things pertinent to this Motion. First, it implicitly finds (Tr. 

at 37:8–22) that Plaintiffs adequately met their burden to establish standing at this stage of the 

proceeding. Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992) (“Since [the elements of 

standing] are not mere pleading requirements but rather an indispensable part of the 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.”). Second, the Court’s Order concludes that discovery is closed, and that 

the parties and the Court will proceed based on the record as it stands. (Tr. 42:1–3.) 

 As discussed during the July 29 Conference, three things have occurred since the closing 

of briefing on the parties’ cross-motions for summary judgment, each of which fundamentally 

affect the bases for the Court’s Order: 

1. The Supreme Court issued its plurality opinion in American Legion v. American 

Humanist Ass’n, 139 S. Ct. 2067 (2019), significantly altering the Court’s analysis of 

both Plaintiffs’ standing and the substance of their Establishment Clause challenge; 

 

within 14 days of the Court’s filing of its Order. (Doc. 48.) Out of an abundance of caution, the 

City files this Motion to preserve its rights. 
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2. The City has learned that “The Satanic Temple” is not a properly named Plaintiff2

 in this 

matter; and 

3. The only other named plaintiff, Michelle Shortt, has resigned her position as a 

“Chapterhead” (See Shortt Letter of Resignation, attached hereto as Exhibit B).3

As a contextual backdrop for the Court’s analysis, the Court should recall that: a) the only 

extant claims in this case are Counts 1 and 2 (Doc. 17); and b) Ms. Shortt has not asserted any 

claims in her on right in Counts 1 and 2. Rather, the only claims asserted in Counts 1 and 2 are 

those purportedly belonging to a fictitious entity referred to as “The Satanic Temple.” (Doc. 1 at 

¶¶ 43, 44.) And Plaintiffs acknowledge that Ms. Shortt did not attempt to speak on her own 

behalf, but “on behalf” of that fictitious entity as its purported “agent.” (Doc. 1 at ¶¶ 2, 28; Tr. 

23:3–9.) That contextual background informs the flaws in Plaintiffs’ claims, and warrants 

reconsideration of the Court’s Order. 

II. Argument 

A. Newly discovered evidence calls into question the Court’s 

jurisdiction to enter the Court’s Order. 

Plaintiffs have resolutely failed to identify the entity that is pursuing a claim against the 

City and have not parsed out the basis for Ms. Shortt’s claims relative to the unknown Plaintiff 

entity. This is true despite the Court’s questioning and concern on these topics during the oral 

argument on the cross-motions for summary judgment. Plaintiffs’ failure to identify the real 

party(s) in interest fatally impaired the Court’s ability to determine whether it had jurisdiction to 

 

2

 For ease of reference, the City refers to “Plaintiffs” in this Motion, without conceding that 

either Ms. Shortt or “The Satanic Temple” are the real parties in interest or otherwise properly 

plaintiffs. As the Court no doubt recalls, at the July 29 Conference, and pursuant to Rule 17 of 

the Federal Rules of Civil Procedure, the City objected to the maintenance of claims by “The 

Satanic Temple.” “The Satanic Temple” is not an entity. It is a trademark under which a 

Massachusetts limited liability company, United Federation of Churches, LLC offers its good 

and services. (See USPTO Trademark Registration, attached as Exhibit C). 

3

 Ms. Shortt appears to have resigned on June 11, 2019—long after briefing on the parties’ 

respective cross-motions for summary judgment closed. 
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enter the Court’s Order. FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231 (1990) (explaining 

that federal courts have a continuing obligation to examine their own jurisdiction.). 

It is beyond serious dispute that the party invoking federal jurisdiction bears the burden of 

proving all elements of standing. Lujan, 504 U.S. at 561. And as demonstrated below, the 

Supreme Court’s recent opinion in American Humanist, 139 S. Ct. 2067, makes the Court’s 

inquiry into standing more stringent and critical. In any event, because standing is “an 

indispensable part” of a plaintiffs’ case, a plaintiff must demonstrate standing at all stages of the 

litigation “with the manner and degree of evidence required at the successive stages of the 

litigation.” Lujan, 504 U.S. at 561. 

When confronted with a motion for summary judgment, a party may not merely rest on 

the allegations of their complaint, but must come forward with admissible evidence 

demonstrating a genuine question of material fact. Fed. R. Civ. P. 56(e); Matsushita Elec. Indus. 

Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87 (1986). The evidence adduced by Plaintiffs to 

date is insufficient to create a triable issue of fact regarding standing. First, Ms. Shortt’s standing 

to prosecute claims on her own behalf is dubious given allegations in the Complaint and the 

standing paradigm set forth in American Humanist. Second, it is impossible to know whether the 

fictitious entity Plaintiffs call “The Satanic Temple” has standing without knowing what that 

entity is. 

1. There are significant questions regarding Ms. Shortt’s standing. 

Despite Plaintiffs’ protestations to the contrary, Ms. Shortt has no extant claims in her 

own right, and has likely failed to state a claim on the face of the Complaint. (Doc. 1 ¶¶ 42–

44.) Thus, the question of whether “Plaintiffs[’]” claims can be redressed by Court action as 

reflected in the Court’s Order, cannot turn on whether an hypothetical injury to Ms. Shortt 

could be redressed by favorable Court action, but instead must turn on whether the fictive 

entity that Plaintiffs refer to as “The Satanic Temple” can state a claim for relief. Although it 

is conceivable that Plaintiffs could have pled a claim on behalf of Ms. Shortt in her own right, 
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they did not. And Plaintiffs freely acknowledge that Ms. Shortt was not acting as an 

individual when she attempted to speak, but “on behalf” of the fictive plaintiff. (Doc. 1 at ¶¶ 

2, 28; Tr. 23:3–9.) Thus, Ms. Shortt’s injury (and redressability) in her own right cannot form 

the basis for standing for the claims pled in this action, and to the extent the Court’s Order 

relied on Ms. Shortt’s standing in her own right, it should be reconsidered. 

To the extent that Ms. Shortt articulates facts that could charitably be construed to state a 

claim in her own right, those facts reveal that Ms. Shortt has pled only standing as an offended 

observer. Paragraph 11 of the Complaint (Doc. 1) articulates the only basis for conferring 

standing upon Ms. Shortt personally—that she “objects to the exclusionary sectarian invocation 

on religious grounds.” (Doc. 1 at ¶ 11.) As explained by Justice Gorsuch’s concurrence in 

American Humanist, however, that “offended observer” theory of standing “has no basis in 

law.” Am. Humanist, 139 S. Ct. at 2098. “Instead, in a society that holds among its most 

cherished ambitions mutual respect, tolerance, self-rule, and democratic responsibility, an 

‘offended viewer’ may ‘avert his eyes,’ or pursue a political solution.” Id. at 2103 (quoting 

Erzonznik v. Jacksonville, 422 U.S. 205, 212 (1975)) (internal citation omitted). 

Moreover, the Complaint expressly limits Ms. Shortt’s desired activities to that of an 

“agent” of the corporate Plaintiff. (Doc. 1 at ¶ 2). To be sure, Ms. Shortt does not allege that she 

sought to give an invocation on her own behalf; instead, she repeatedly alleges that she sought to 

give an invocation in a “representative” (Id. at ¶ 21) capacity “on behalf of The Satanic Temple.” 

(Id. at ¶ 28). These allegations are plainly insufficient to confer standing on behalf of Ms. Shortt 

as an individual. 

Rather, Article III required Ms. Shortt to demonstrate that she is “directly affected by the 

laws and practices against which [his] complaints [are] directed.” Vasquez v. Los Angeles 

County, 487 F.3d 1246, 1251 (9th Cir. 2007) (quoting Sch. Dist. of Abington Twp., Pa. v. 

Schempp, 374 U.S. 203, 225 n.9 (1963)). She has not done so, and she has not pled as such. 

Indeed, given her recent resignation from The Satanic Temple Arizona Chapter (whatever that 
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is) as a “Chapterhead,” it is entirely unlikely that she can make such a demonstration.4

 Instead, it 

appears that Ms. Shortt’s articulated “belief” in the violative nature of Scottsdale’s invocation 

practice renders her nothing more than “offended.” American Humanist 139 S. Ct. at 2098. That 

“offense,” even if emotionally justified, is insufficient to confer standing on Ms. Shortt to sue in 

this case. Id.; Caldwell v. Caldwell, 545 F.3d 1126, 1131 (9th Cir. 2008); Valley Forge 

Christian Coll. v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 483 

(1982) (holding that plaintiffs lacked standing because “[i]t is evident that respondents are firmly 

committed to the constitutional principle of separation of church and State, but standing is not 

measured by the intensity of the litigant’s interest or the fervor of his advocacy.”). 

2. The organization identified as “The Satanic Temple” may lack 

standing. 

It is dubious that “The Satanic Temple” has associational standing to pursue claims on 

behalf of its members for two reasons. First, associational standing requires a plaintiff to 

plead and prove: “(a) its members would otherwise have standing to sue in their own right; (b) 

the interests it seeks to protect are germane to the organization’s purpose; and (c) neither the 

claim asserted nor the relief requested requires the participation of individual members.” Hunt 

v. Wash. State Apple Advert. Comm’n, 432 U.S. 333, 343 (1977) (emphasis added). Plaintiffs 

have not raised, let alone attempted to address, that controlling standard. How could they, 

given that they have declined to inform the Court or City what entity seeks to assert 

associational standing, or what members comprise such an entity? 

Second, Plaintiffs’ only assertion with respect to the “members” of “The Satanic 

Temple” is the unadorned assertion that it has some unidentified members in Scottsdale. 

(Doc. 33, Ex. 3 at ¶ 7.) That is, however, insufficient. Valley Forge, 454 U.S. at 474 (“[T]he 

Plaintiff generally must assert his own legal rights and interests, and cannot rest his claim to 

 

4

 Ms. Shortt’s resignation also implicates a previously unexamined issue of whether any of the 

City’s invocations have been delivered by a mere member of a particular organization, as 

opposed to a leader or member of a particular sect’s clergy. 
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relief on the legal rights or interests of third parties.” (quoting Warth v. Seldin, 422 U.S. 490, 

499 (1975)). Because neither this Court nor the City (and perhaps not even Plaintiffs 

themselves) know whether the “Satanic Temple” refers to the Arizona chapter, or the national 

organization (whatever corporate form either of those entities takes), Plaintiffs necessarily 

could not have proved, and the Court’s Order cannot find, that “The Satanic Temple” has 

associational standing. 

Plaintiffs’ failure to identify the actual entity pursuing claims against the City renders it 

impossible to say that there is a “genuine” issue for trial. See Matsushita, 475 U.S. at 586–87 

(“Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.’” (quoting First Nat’l Bank of Ariz. v. Cities 

Service Co., 391 U.S. 253, 289 (1968)). To move forward in this litigation, the corporate entity 

(whomever it may be) must proffer admissible evidence sufficient to demonstrate that it

possesses “the irreducible constitutional minimum [elements] of standing.” Lujan, 504 U.S. at 

560. To be sure, Plaintiffs have not presented evidence that the actual entity (whether in its own 

name or through its trademarked fictitious designation) sought to give an invocation to the City 

of Scottsdale or properly authorized its purported “agent,” Ms. Shortt (Doc. 1 at ¶ 2), to seek to 

give an invocation. Moreover, given that Ms. Shortt has just resigned her position as 

“Chapterhead,” it is questionable whether she maintains any authority to act on behalf of 

unknown entity. 

Given the uncertainty of (i) who the corporate plaintiff is in this case, and (ii) whether 

Ms. Shortt was (or continues to be) authorized to act as an agent for the unknown Plaintiff 

entity—which are issues that neither the City nor the Court were aware of until after the 

summary judgment briefing was complete—the Court could not accurately determine whether it 

had subject matter jurisdiction to enter the Court’s Order, and for this reason it should be 

reconsidered and, in pertinent part, vacated. 
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B. Reopening discovery in this case is appropriate and supported 

by good cause. 

The Court’s ruling that the parties and Court would proceed “with the record that exists 

in the case” (July 16, 2019 Hearing Tr. at 42:1–3) should be reconsidered. Good cause exists 

to vacate the Court’s ruling and to reopen discovery for the limited purpose of (1) deposing 

Ms. Shortt, and (2) a 30(b)(6) deposition of the Plaintiff entity (whatever that may properly 

be). Those depositions would be limited to no more than ninety (90) minutes each, and would 

be limited to issues of standing only. 

District courts enjoy broad discretion over pretrial proceedings, including discerning 

what comprises “good cause” for purposes of Rule 16. See, e.g., Johnson v. Mammoth 

Recreations, Inc., 975 F.2d 604, 607 (9th Cir. 1992). The Court may modify a Rule 16 

scheduling order to reopen discovery upon a showing of good cause. See, e.g., Gazian v. 

Wells Fargo Bank NA, CV-13-01312, 2015 WL 3448575, at *3 (D. Ariz. May 29, 2015). 

Here, there are two independent bases for finding good cause to reopen discovery. First, reopening limited discovery is necessary for the Court to fulfill its continuing obligation to 

examine its own jurisdiction in light of the just-discovered issue with the Plaintiffs’ identity. 

Second, any prejudice to Plaintiffs is mitigated by the fact that this issue was caused by 

Plaintiffs’ failure to comply with Rule 17, Rule 7.1, and General Order 17-08; their deficient 

Court-ordered mandatory discovery responses; and their decision to withheld critical 

information from the City. 

1. The Court’s continuing obligation to examine its own subject-matter 

jurisdiction informs the good cause to reopen discovery. 

“Federal courts are always under an independent obligation to examine their own 

jurisdiction . . . and a federal court may not entertain an action over which it has no 

jurisdiction.” Hernandez v. Campbell, 204 F.3d 861, 865 (9th Cir. 2000) (quoting FW/PBS,

493 U.S. at 231) (internal quotations omitted). As stated in Section II.A above, significant 

questions remain with respect to who the Plaintiff is in this case, and whether this Court has 
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subject matter jurisdiction over that Plaintiff’s claims. Because the Court has an ever-present 

obligation to examine its jurisdiction, the Court should permit the parties to adequately build a 

record—once it is determined who the proper parties are—to permit it to make an informed 

decision regarding jurisdiction. 

2. Plaintiffs’ declination to disclose key information comprises good 

cause to reopen discovery. 

As this Court has previously explained, the failure of a party to disclose “a relevant 

piece of evidence” until after the close of discovery comprises good cause to modify a 

scheduling order and re-open discovery. Gazian, 2015 WL 3448575, at *3. As indicated by 

counsel for the City during the July 29 Conference, a number of undisclosed issues have 

recently become manifest that raise serious questions regarding the Court’s subject-matter 

jurisdiction in this matter, including: 

1. Plaintiffs have not disclosed the name of the corporate entity that has initiated suit 

against the City as required under Rule 17 of the Federal Rules of Civil Procedure. 

2. “The Satanic Temple” is not a jural entity, but is a fictitious trade name of a 

Massachusetts limited liability corporation called the “United Federation of Churches, 

LLC.” (Ex. C.) 

3. The United Federation of Churches, LLC is not authorized to transact business in 

Arizona, and lacks the capacity to sue or be sued in Arizona. See A.R.S. § 10-

11502(A). 

4. Ms. Shortt has—unbeknownst to the City—recently resigned her leadership position in 

the Arizona chapter of the Satanic Tempe. (Ex. B.) 

5. There is no monolithic “The Satanic Temple,” but an amalgam of autonomous chapters 

and one national organization with differing memberships. (Ex. B.) 

6. The Arizona chapter of the Satanic Temple is also a pseudonym of some unknown 

corporate entity, and did not exist at the time of the events giving rise to the Complaint. 
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Plaintiffs did not divulge any of the foregoing in their mandatory initial disclosure 

project responses, nor any Rule 26(a) disclosure statement. Those items should have been 

disclosed at the earliest stages of this case. See General Order 17-08 at 5 ¶ 3 (requiring 

litigants to provide documents and other information “that you believe may be relevant to any 

party’s claims or defenses.” (emphasis added)), ¶ 4 (requiring litigants to “state the facts 

relevant to it and the legal theories upon which it is based”). Further, Plaintiffs’ failure to 

comply with Rule 7.1 of the Federal Rules of Civil Procedure by filing the required corporate 

disclosure statement deprived both the Court and the City of necessary information regarding 

Plaintiffs’ identity and interests. The City learned of these items for the first time on 

Thursday, July 25, 2019, and raised them with Plaintiffs and the Court immediately. 

III. Conclusion 

The City does not know the identity of the real party in interest that has haled it into 

federal court to challenge its longstanding practice and procedures. At a minimum, the Court 

should permit the City to learn the identity of its opponent, and to test the ability of that entity 

to litigate these claims in federal court and the merits of its claims. Thus, the City asks that the 

Court reconsider its Order: a) determining Plaintiffs have standing; and b) foreclosing any 

further discovery. 

 RESPECTFULLY SUBMITTED this 30th day of July, 2019. 

 DICKINSON WRIGHT PLLC 

 By: /s/ Scot L. Claus 

Scot L. Claus 

Vail C. Cloar 

Holly M. Zoe 

1850 North Central Avenue, Suite 1400 

Phoenix, Arizona 85004-4568 

Attorneys for City Defendants 
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CERTIFICATE OF SERVICE 

 I hereby certify that on July 30, 2019, I electronically transmitted the attached 

document to the Clerk of the Court using the CM/ECF system, and which will be sent 

electronically to all registered participants as identified on the Notice of Electronic Filing, and 

paper copies will be sent to those indicated as non-registered participants. 

 By: /s/ Sheila Rath