- 1 - 

PHOENIX 53387-11 599194v12 

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

courtdocs@dickinsonwright.com

Scot L. Claus (#014999) 

Vail C. Cloar (#032011) 

Holly M. Zoe (#033333) 

DICKINSON WRIGHT PLLC 

1850 North Central Avenue, Suite 1400 

Phoenix, AZ 85004-4568 

Phone: (602) 285-5000 

Attorneys for Defendant City of Scottsdale 

UNITED STATES DISTRICT COURT 

DISTRICT OF ARIZONA 

The Satanic Temple, Inc. et al., 

 Plaintiffs, 

v. 

City of Scottsdale, 

 Defendant. 

Case No. CV 18-00621-PHX-DGC 

DEFENDANT CITY OF 

SCOTTSDALE’S REPLY IN SUPPORT 

OF MOTION TO DISMISS 

(Oral Argument Requested) 

 Plaintiffs cling to the misguided notion that a non-entity may sue for a violation of the 

Establishment Clause arising from a legislative prayer practice regardless of whether: (1) 

whether the entity existed at the time of the alleged harm; (2) whether it represents any particular 

religion; (3) or whether its purported members adhere to any particular set of beliefs. 

Unsurprisingly, that is not the law. Plaintiffs’ case is dependent upon the fictive narrative that 

something called “The Satanic Temple” both sought, and was denied, the opportunity to give an 

invocation prior to a 2016 City Council meeting. But that is not true as a matter of historic fact. 

There is no monolithic entity called “The Satanic Temple,” and no such entity attempted to 

deliver anything resembling an “invocation” that is entitled to protection under the 

Establishment Clause. Simply put, no Plaintiff has standing to sue, and this Court lacks subject 

matter jurisdiction. 

I. Plaintiffs misapprehend the law of standing. 

 Plaintiffs’ standing analysis flows from two essential fallacies. First, Plaintiffs assert 

that the Court must construe all facts in the FAC as true when analyzing whether they have 

Case 2:18-cv-00621-DGC Document 67 Filed 10/25/19 Page 1 of 13
- 2 - 

PHOENIX 53387-11 599194v12 

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

standing. [Response at 2, 16.] Second, Plaintiffs apparently believe that if one Plaintiff has 

standing, then all of the Plaintiffs have standing. [Response at 4.] Both assertions are wrong. 

A. Plaintiffs have failed to meet their burden to establish standing. 

 There is a well-settled presumption against federal court jurisdiction, DaimlerChrysler 

Corp. v. Cuno, 547 U.S. 332, 342 n.3 (2006), and “the party asserting jurisdiction has the 

burden of establishing it if his allegations are challenged in any appropriate manner.” Taylor 

v. Portland Paramount Corp., 383 F.2d 634, 639 (9th Cir. 1967); see also Spokeo v. Robins, 

136 S. Ct. 1540, 1547 (2016) (explaining that the plaintiff, “as the party invoking federal 

jurisdiction,” bears the burden of establishing elements of standing). Plaintiffs do not attempt 

to meet this burden. 

 Instead, Plaintiffs incorrectly assert that the Court must accept their alleged facts as 

true. [Response at 2, 16.] However, “attacks on jurisdiction can be either facial, confining the 

inquiry to allegations in the complaint, or factual, permitting the court to look beyond the 

complaint.” Savage v. Glendale Union High Sch. Dis. No. 205, Maricopa Cty., 343 F.3d 

1036, 1039 n.2 (9th Cir. 2003). Thus, on a factual challenge to standing, “[n]o presumptive 

truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will 

not preclude the trial court from evaluating for itself the merits of jurisdictional claims.” 

Thornhill Pub. Co., Inc. v. Gen. Tel. & Elecs. Corp., 594 F.2d 730, 733 (9th Cir. 1979) 

(quoting Mortensen v. First Fed. Sav. & Loan Ass’n, 549 F.2d 884, 891 (3d Cir. 1977)). 

 Here, the City has offered significant evidence demonstrating that Plaintiffs lack 

standing, including: (1) TST, Inc. and Adversarial Truth’s non-existence at any relevant time; 

(2) the absence of any authorization for Ms. Shortt to speak on behalf of any entity or group; 

(3) UFC’s inability to lawfully transact business in Arizona; (4) the purely secular purpose of 

the alleged “invocation;” and (5) the absence of any “religion” that can suffer an injury from a 

legislative prayer. The only evidence that Plaintiffs offered in response is a document 

reflecting that TST, Inc. was recently deemed by the IRS to be eligible for tax-exempt status. 

Case 2:18-cv-00621-DGC Document 67 Filed 10/25/19 Page 2 of 13
- 3 - 

PHOENIX 53387-11 599194v12 

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

[Doc. 65-1.] But that treatment is completely unresponsive to any standing defect because 

TST, Inc. did not exist at any relevant time. Plaintiffs have utterly failed to meet their burden. 

B. Plaintiffs cannot bootstrap standing. 

 Plaintiffs obstinately insist that all named Plaintiffs necessarily have standing as 

something called “TST.” But “standing is not dispensed in gross.” Lewis v. Casey, 518 U.S. 

343, 358 n.6 (1996). Instead, “a plaintiff must demonstrate standing for each claim he seeks to 

press and for each form of relief that is sought.” Town of Chester, N.Y. v. Laroe Estates, Inc., 

137 S. Ct. 1645, 1650 (2017); see also Gill v. Whitford, 138 S. Ct. 1916, 1934 (2018) (“A 

plaintiff’s remedy must be tailored to redress the plaintiff’s particular injury.” (emphasis 

added)). Plaintiffs cannot rely upon a harm allegedly suffered by one of them to grant 

standing to all. Instead, Plaintiffs bore the burden to demonstrate—as to each plaintiff—that 

each may pursue a remedy based on the particular injury suffered by that Plaintiff. Gill, 138 

S. Ct. at 1934. Plaintiffs’ failure to do so is fatal to their claims. 

 Plaintiffs’ misunderstanding of the doctrine is highlighted by their reliance upon 

Naruto v. Slater, 888 F.3d 418 (9th Cir. 2018), asserting that “[i]f a monkey has standing to 

sue for copyrights (sic) to its selfies,” Plaintiffs must have standing here. [Response at 6.] 

Perspective is required. First, the challenge to standing in Naruto was a facial challenge to 

standing, which merely asserted that there were insufficient facts alleged to establish standing. 

Id. at 420. Second, in Naruto, there was a specific and identifiable plaintiff (Naruto, the 

monkey) with a specific and identifiable alleged harm (wrongful use of copyrighted work). 

Such simple identification of parties and claims continues to elude Plaintiffs. If a monkey is 

held to the rigors of Article III, Plaintiffs should be as well. 

II. Adversarial Truth, TST, Inc., and UFC are not proper plaintiffs. 

A. Adversarial Truth and TST, Inc. did not exist. 

 An injury in fact requires that a plaintiff demonstrate “the invasion of a legally 

protected interest,” that is “concrete and particularized” and neither “conjectural nor 

Case 2:18-cv-00621-DGC Document 67 Filed 10/25/19 Page 3 of 13
- 4 - 

PHOENIX 53387-11 599194v12 

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

hypothetical.” Spokeo, 136 S. Ct. at 1548 (quoting Lujan v. Defenders of Wildlife, 504 U.S. 

555, 560 (1992)). A putative plaintiff must demonstrate that “he is himself adversely 

affected” by some action by the defendant. Sierra Club v. Morton, 405 U.S. 727, 740 (1972). 

 The Unincorporated Association sought to give an invocation in February 2016, and 

was ultimately refused in May 2016. [Doc. 1-1, Ex. 7.; Doc. 57 at 5 ¶ 26.1

] Adversarial Truth 

was not organized until nearly a year later (April 2017). 2 [Doc. 63-1, Ex. A at 9:3–11.] And 

TST, Inc. was not incorporated until more than a year after the events giving rise to this 

litigation (November 2017). [Doc. 63-1, Ex. B at 12:22–13:11.] It is impossible as a matter of 

historic fact for those entities to have suffered an “invasion” of a legally protectable interest; 

an entity that does not exist manifestly has no protectable interest to invade. 

B. UFC has neither capacity to bring suit nor a redressable 

injury. 

1. UFC lacks capacity sue. 

 Whether a limited liability company has capacity to bring suit in federal court is 

governed by Rule 17(b)(3), which indicates that such determinations are made with reference 

to the forum state’s law. Fed. R. Civ. P. 17(b)(3); Malibu Media, LLC v. Steiner, 307 F.R.D. 

470, 473 (S.D. Ohio 2015) (“Relevant here is subsection (b)(3), which applies to ‘all other 

parties, including limited liability companies such as Plaintiff.”); In re Dairy Farmers, 767 F. 

Supp. 2d 880, 892 (N.D. Ill. 2011). Arizona law is clear that an unregistered foreign limited 

liability company “shall not maintain an action, suit or proceeding in a court of this state until 

it has obtained a certificate of registration to transact business.” A.R.S. § 28-809(A). 

 Here, UFC is not, and never has been, registered as a foreign limited liability company 

in Arizona and is prohibited from bringing suit in this Court. Id.; Fed. R. Civ. P. 17(b)(3). 

Plaintiffs do not quibble with that fact, but instead appear to argue that UFC can instead 

 

1

 Contrary to the allegations of the FAC, Ms. Shortt did not ask to give the invocation. 

2

 Ariz. Corp. Comm’n, Articles of Organization: Adversarial Truth, LLC, https://ecorp

.azcc.gov/CommonHelper/GetFilingDocuments?barcode=05886313. 

Case 2:18-cv-00621-DGC Document 67 Filed 10/25/19 Page 4 of 13
- 5 - 

PHOENIX 53387-11 599194v12 

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

pursue its claims by transmuting itself into an unincorporated association. [Response at 12.] 

That is fallacious for at least two reasons. First, it is simply untrue that UFC was an 

“unincorporated association” of persons because it was, in fact, actually organized as an 

LLC—but it is legally barred from bringing suit in this Court. Second, if Plaintiffs are correct 

(and they are not) that any entity that has failed to appropriately register under state law can 

simply pretend it is unregistered, then Rule 17(b)(3) loses all meaning. This Court should 

eschew interpretations that render rule provisions nugatory. See United States v. Tohono 

O’Odham Nation, 563 U.S. 307, 315 (2011) (“Courts should not render statutes nugatory 

through construction.”); Naruto, 888 F.3d at 422 (“Our precedent on statutory interpretation 

should apply to court rules as well as statutes . . . .”). 

 At core, Plaintiffs’ posit that they can embrace or discard the corporate form at will 

and—so long as they generally represent the disembodied spirit of something called “TST”—

they may bring suit under Rule 17(b)(3)(A). [Response at 11.] Plaintiffs are wrong. It is a 

bedrock principle of law that corporate entities, including LLCs, are distinct legal entities 

with a life of their own. Abrahim & Sons Enters. v. Equilon Enters., LLC, 292 F.3d 958, 962 

(9th Cir. 2002) (“Corporations and LLCs are distinct legal entities . . . .”); Deutsche Credit 

Corp. v. Case Power & Equip. Co., 179 Ariz. 155, 159, 876 P.2d 1190, 1194 (App. 1994) 

(“The concept of a corporation as a separate entity is a legal fact, not fiction.”).3

 

2. UFC has not suffered a cognizable injury. 

 It is undisputed that Ms. Shortt sought to give her invocation on behalf of the 

Unincorporated Association. [Doc. 63-1, Ex. J at 24:4–13.] Further, there is no evidence of 

any authorization for the Unincorporated Association to act on behalf of UFC at any relevant 

time, nor any evidence of UFC’s involvement in the requested invocation at all. Indeed, there 

 

3

 Plaintiffs assert that “[t]here is no requirement that unincorporated associations be 

incorporated at some prior point.” [Response at 10.] Yet Plaintiffs’ cited cases both analyze 

previously incorporated entities. S. Cal. Darts Ass’n v. Zaffina, 762 F.3d 921, 927 (9th Cir. 

Case 2:18-cv-00621-DGC Document 67 Filed 10/25/19 Page 5 of 13
- 6 - 

PHOENIX 53387-11 599194v12 

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

is no evidence that Ms. Shortt ever received authorization from UFC’s sole manager to speak 

on its behalf. [Id., Ex. C, at 35:25–36:5.] UFC has suffered no injury and, to the extent that it 

asks the Court for some relief, it seeks an improper advisory opinion regarding its rights. See 

Ctr. for Biological Diversity v. U.S. Forest Serv., 925 F.3d 1041, 1047 (9th Cir. 2019). 

III. The Unincorporated Association lacks standing or capacity to sue. 

A. The Unincorporated Association lacks capacity to sue. 

 Plaintiffs did not and cannot demonstrate that the Unincorporated Association is an 

“unincorporated association” for purposes of Rule 17(b), and simply ignore the City’s 

arguments in that regard. There is no evidence that the purported “members” of the 

Unincorporated Association have reached any kind of consensus as to its purpose and for this 

reason, the Unincorporated Association (assuming, arguendo, it has members) could not have 

been “formed by mutual consent for the purpose of promoting a common objective” that had a 

“religious” purpose. Indeed, the following dispositive facts stand unrebutted: “members” of 

the group do not need to be practicing Satanists. [Doc. 63-1, Ex. A at 32:16–33:2.] Some 

“members” believed in a form of Satanism that involves “magick” and supernatural powers; 

those beliefs are “antithetical” to one another. [Id., Ex. J at 27:7–28:15.] Some “members” 

view “TST” as a “sociopolitical counter-method” which others do not believe is the same as a 

religion. [Compare id. 59:17–27, with id., Ex. A at 30:21–31:1.] Because Plaintiffs have 

utterly failed to demonstrate a “common purpose” amongst the “members,” the 

Unincorporated Association cannot invoke Rule 17(b)(3) and lacks capacity to sue. 

B. The Unincorporated Association lacks standing. 

 Rather than offer evidence demonstrating that the Unincorporated Association is a 

membership association capable of invoking associational standing, Plaintiffs instead (i) 

continue to conflate all the plaintiff entities into something called “TST”; (ii) declare without 

 

2014); Comm. for Idaho's High Desert, Inc. v. Yost, 92 F.3d 814 (9th Cir.1996); Sierra Ass’n 

for Env't v. FERC, 744 F.2d 661 (9th Cir.1984). 

Case 2:18-cv-00621-DGC Document 67 Filed 10/25/19 Page 6 of 13
- 7 - 

PHOENIX 53387-11 599194v12 

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

any supporting evidence that this non-existent entity is a membership organization; and (iii) 

suggest that there is no authority requiring the Court to consider whether an organization is in 

fact a membership organization before permitting it to assert associational standing. 

[Response at 8–10.] Plaintiffs are wrong. 

 Plaintiffs’ misunderstanding of Hunt is pervasive and dispositive. [Response at 9–10.] 

To assert associational standing, an entity must be a membership organization. This is not an 

additional criterion to the three-part test described in Hunt. Rather, the very language of the 

associational standing test makes this obvious: an organization “has standing to bring suit on 

behalf of its members when (a) its members would otherwise have standing . . . .” Hunt v. 

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

 Plaintiffs cannot simply declare themselves a membership organization and then 

attempt to raise claims that are not personal to the organization. Instead, the court must 

evaluate whether the Unincorporated Association4

 is actually a membership organization in 

the first instance, precisely as was done in Hunt, Mink, and other cases. See e.g., Hunt, 432 

U.S. at 342–343 (concluding organization is membership organization for purposes of 

associational standing); Or. Advocacy Ctr. v. Mink, 322 F.3d 1101, 1109 (9th Cir. 2003) 

(same); Fleck & Assocs. v. Phoenix, 471 F.3d 1100, 1106 (9th Cir. 2006); Fund Democracy, 

LLC v. SEC, 278 F.3d 21, 25 (D.C. Cir. 2002); Gettman v. DEA, 290 F.3d 430, 435 (D.C. Cir. 

2002). Plaintiffs have failed to establish that the Unincorporated Association is a membership 

organization that could have associational standing. As the City explained in its Motion, the 

Unincorporated Association lacks the “indicia of membership” necessary to be considered a 

membership organization—a conclusion that Plaintiffs do not attempt to rebut. [Motion at 

16–17; Response at 9–10.] 

 Perhaps most fatal to Plaintiffs’ associational standing claim, however, is its inability 

to demonstrate that it has “members” who “express their collective views and protect their 

Case 2:18-cv-00621-DGC Document 67 Filed 10/25/19 Page 7 of 13
- 8 - 

PHOENIX 53387-11 599194v12 

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

collective interests” through the organization. Hunt, 432 U.S. at 345. Rather than explain or 

demonstrate how the Unincorporated Association reflects the “collective views” of any 

“members,” Plaintiffs baldly posit that “TST’s organizational purpose is to promote 

pluralism” and that “TST’s organizational purposes lead it to demanding equality for its 

membership.” [Response at 9.] Plaintiffs, however, offer no evidence that this is a memberdriven “purpose” rather than the pet project of Messrs. Soling, Misicko, and de Haan, and Ms. 

Shortt. Instead, the evidence reflects that the Unincorporated Association is not a vehicle to 

express “collective views” of any purported members, but rather those picked by its selfappointed leaders. “Members” have no rights: they do not elect leadership, they do not vote, 

they do not fund the activities of the group; and they have wildly disparate views of Satanism. 

[Doc. 63-1, Ex. J at 16:21–17:2, 18:21–19–10, 27:7–28:15.] 

 When convenient, Plaintiffs also suggest that the “members” of their organization 

share a belief in “Satanism” and that the Unincorporated Association has standing to vindicate 

the rights of “Satanists.” [Response at 9, 12.] But that is, of course: (i) inconsistent with the 

stated purpose of the Unincorporated Association to promote pluralism [Doc. 63-1, Ex. J at 

8:9–14]; (ii) belied by the testimony that purported members may hold religious views that 

are “antithetical” to each other [Id. at 27:7–28:15]; (iii) disingenuous in light of The Satanic 

Temple’s origins as a “mockumentary;” and (iv) belied by the fact that one need not be a 

Satanist to join. [Motion at 2–3.] 

IV. No Plaintiff, including Michelle Shortt, has a redressable injury in fact. 

 Plaintiffs fail to accept or acknowledge that claims regarding legislative prayer are 

simply different than other Establishment Clause claims. Thus, even if some named Plaintiff 

is able to survive the dispositive analyses set forth above, because the “invocation” sought to 

 4

 Plaintiffs do not even attempt to establish Adversarial Truth, UFC, or TST, Inc. as 

membership entities with associational standing. 

Case 2:18-cv-00621-DGC Document 67 Filed 10/25/19 Page 8 of 13
- 9 - 

PHOENIX 53387-11 599194v12 

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

be given by Ms. Shortt is neither religious nor an actual “invocation,” the Plaintiffs lack a 

concrete injury capable of redress as a matter of law. 

A. A secular group lacks standing to demand a legislative prayer. 

 Plaintiffs rely on the notion that in other contexts, such as those involving religious 

monuments or school prayer, “irreligious” people have had standing to challenge such 

practices under the Establishment Clause. [Response at 4 (emphasis in original)]. But that is 

not true of legislative prayer, and deprives Plaintiffs of an injury redressable by Court action. 

Despite Plaintiffs’ suggestion to the contrary, the Court need not inquire whether non-theists 

generally have rights under the Establishment Clause of the First Amendment. [Response at 

15.] Instead, the crux of the issue is that in the context of legislative prayer cases, the 

Establishment Clause can only be implicated if the challenger’s religious beliefs are 

threatened. [Motion at 8–9.] 

Marsh, Town of Greece, and American Humanist stand for the proposition that 

legislative prayer is generally constitutional so long as it does not exclude particular religions. 

Marsh v. Chambers, 463 U.S. 783 (1983); Town of Greece, N.Y. v. Galloway, 572 U.S. 565, 

575 (2014); Am. Legion v. Am. Humanist Ass’n, 139 S. Ct. 2067, 2087 (2019). Because 

Plaintiffs fall outside of the zone of religious interests shielded by the Establishment Clause in 

the legislative prayer context, they lack standing. Valley Forge Christian Coll. v. Americans 

United for Separation of Church and State, Inc., 454 U.S. 464, 475 (1982).5

 Plaintiffs attempt to avoid this conclusion by arguing that Marsh and Town of Greece

“caution[] against using the prayer opportunity to denigrate other religions.” [Response at 14.] 

But that unhelpful platitude has no application here. Legislative prayer is, by its very nature, 

 

5

 Although characterized as “prudential,” the zone of interest requirement “relate[s] to 

elements of Article III standing.” Montesa v. Schwartz, 836 F.3d 176, 195 (2d Cir. 2015). 

Plaintiffs would have this Court ignore Valley Forge’s admonition that a plaintiff must fall 

within the protectable zone of interest to assert an Establishment Clause claim. [Response at 

16.] The Barker court, although correct on the merits, failed to consider Valley Forge in its 

standing analysis. Barker v. Conroy, 921 F.3d 1118 (D.C. Cir. 2019). 

Case 2:18-cv-00621-DGC Document 67 Filed 10/25/19 Page 9 of 13
- 10 - 

PHOENIX 53387-11 599194v12 

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

religious. Am. Humanist Ass’n, 139 S. Ct. at 2087. Plaintiffs offer no explanation how the 

exclusion of a secular group from giving an “invocation” constitutes denigration. It is 

undisputed that the City’s invocation policy was to invite various faith groups to give an 

invocation. [Doc. 32-2, Ex. 2 at 6:16–7:12; Doc. 38-2.] There is no evidence that the City has 

every permitted, much less invited, any secular group to give an “invocation.” 

 Because Ms. Shortt was unequivocal in her testimony that the purpose behind her 

attempted invocation was “pluralism”—rather than a theistic belief or set of religious ideals—

a denial of the opportunity to speak is simply not an injury, nor is it capable of redress. 

[Motion at 11–12.] Plaintiffs do not comprise a religion, and they do not have standing to 

demand the ability to give a legislative prayer. 

B. The requested relief is beyond this Court’s powers. 

 In response to the argument that the Establishment Clause does not require the City to 

permit Plaintiffs to give a secular invocation, Plaintiffs’ only retort is that “TST is religious” 

and that “Satanism is a religion.” [Response at 12.] But regardless of whether Satanism is a 

religion,6 one need not be a Satanist to be a member of any of the Plaintiff entities, nor is 

there any real requirement beyond the ability to click a button on a website. [Motion at 4–5.] 

More importantly, it is clear that, even if Satanism is a religion, the Plaintiff entities are not. 

[Doc. 63-1, Ex. J at 8:9–14.] 

 Although the power of the Court is broad, federal courts lack authority to order the 

enactment of new legislation or policies except in certain narrow circumstances. Indeed, wellsettled “principles of federalism counsel against awarding affirmative injunctive and 

declaratory relief that would require state officials to . . . enact a new law proposed by 

plaintiffs.” M.S. v. Brown, 902 F.3d 1076, 1089 (9th Cir. 2018) (quotations omitted). 

 

6

 “Satanism” does not refer to a singular set of beliefs the way, for example, “Catholicism” 

might. LeVayan Satanism believes in the supernatural and “magick,” [Doc. 63-1, Ex. J at 

27:7–28:15.], which is antithetical to the non-theistic view of “Satanism.” 

Case 2:18-cv-00621-DGC Document 67 Filed 10/25/19 Page 10 of 13
- 11 - 

PHOENIX 53387-11 599194v12 

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

 The Court cannot compel the City to adopt a new legislative prayer policy permitting 

secular “invocations” prior to City Council meetings as Plaintiffs ask it to. [FAC at 9, 

Response at 7.] The City can maintain (and has) a policy that does not discriminate between 

religions but that limits invocations to religious groups. In light of their manifest nonreligiosity, Plaintiffs effectively ask the Court to rewrite the City’s non-discriminatory policy. 

But there is no Constitutional basis for the Court to order the enactment or alteration of the 

City’s longstanding legislative prayer policy, and Plaintiffs, therefore, lack a redressable 

injury that can confer standing. M.S., 902 F.3d at 1083. 

V. Plaintiffs’ newly minted equal protection claim is meritless. 

 “A defendant suffers prejudice if a plaintiff is allowed to proceed with a new theory of 

recovery after close of discovery.” Smith v. City & Cty. of Honolulu, 887 F.3d 944, 951–52 

(9th Cir. 2018). In their Response, Plaintiffs assert for the first time that their equal protection 

claim is predicated upon the City “scrutiniz[ing]” Plaintiffs’ connections to the City, which 

they allege was not “forced on other groups.” [Response at 8.] However, the FAC is devoid of 

any well-pled facts to that effect, and only asserts that precluding Ms. Shortt from 

participating in legislative prayer violates equal protection. [FAC ¶¶ 52–53.] 

 It is manifestly improper to find that Plaintiffs have standing predicated upon a new 

theory of the case that has never been raised, was not pled in the FAC, and has never been 

disclosed. Smith, 887 F.3d at 951–52. In any event, a secular group has no right to demand to 

be placed on equal footing with a religion in connection with legislative prayer, because such 

prayer is, by its very nature, religious. Am. Humanist Ass’n, 139 S. Ct. at 2087. 

VI. Conclusion 

 Plaintiffs are not a religion, and lack standing to challenge the City’s longstanding 

legislative prayer practice. The City need not accept a secular group’s invocation under the 

Establishment Clause. Plaintiffs’ attempts to obfuscate the identity of the real party in interest 

cannot resist that legal reality. The Court should dismiss the FAC in toto. 

Case 2:18-cv-00621-DGC Document 67 Filed 10/25/19 Page 11 of 13
- 12 - 

PHOENIX 53387-11 599194v12 

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

 RESPECTFULLY SUBMITTED this 25th day of October, 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 of Scottsdale 

Case 2:18-cv-00621-DGC Document 67 Filed 10/25/19 Page 12 of 13
- 13 - 

PHOENIX 53387-11 599194v12 

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

CERTIFICATE OF SERVICE 

 I hereby certify that on October 25, 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 

Case 2:18-cv-00621-DGC Document 67 Filed 10/25/19 Page 13 of 13