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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-14003
____________________
LADIES MEMORIAL ASSOCIATION, INC.,
RANDALL CROOKE,
Individually and as representative of the
Stephen Russell Mallory Camp 1315,
Sons of Confederate Veterans,
SAVE SOUTHERN HERITAGE INC,
Florida chapter,
VETERANS MONUMENTS OF AMERICA, INC.,
Plaintiffs-Appellants,
versus
CITY OF PENSACOLA, FLORIDA,
a municipality,
FLORIDA SECRETARY OF STATE,
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2 Opinion of the Court 20-14003
In her official capacity,
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Northern District of Florida
D.C. Docket No. 3:20-cv-05681-MCR-EMT
____________________
____________________
No. 21-11072
____________________
LADIES MEMORIAL ASSOCIATION, INC.,
RANDALL CROOKE,
Individually and as a representative of the
Stephen Russell Mallory Camp 1315,
Sons of Confederate Veterans,
SAVE SOUTHERN HERITAGE INC,
Florida Chapter,
VETERANS MONUMENTS OF AMERICA, INC.,
Plaintiffs-Appellants,
versus
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20-14003 Opinion of the Court 3
CITY OF PENSACOLA FLORIDA,
SECRETARY OF STATE OF THE STATE OF FLORIDA,
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Northern District of Florida
D.C. Docket No. 3:20-cv-05681-MCR-EMT
____________________
Before NEWSOM, TJOFLAT, and ED CARNES, Circuit Judges.
TJOFLAT, Circuit Judge:
This case is a topsy-turvy procedural mess. And, today, we
are prevented from joining in the chaos because neither we nor the
District Court has subject matter jurisdiction over this case.
I.
The short story is that several organizations and an individ-
ual sued the City of Pensacola and the Secretary of State of Florida
in state court because the Pensacola City Council voted to remove
a Confederate cenotaph (a monument standing 50 feet tall) from
one of Pensacola’s city parks. The complaint included both federal
and state constitutional claims, a claim under
42 U.S.C. § 1983, and
state statutory and common-law claims. The City was properly
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4 Opinion of the Court 20-14003
served with process, but the Secretary of State was not. The City
removed to federal court. The plaintiffs filed a motion for remand
on the basis that the Secretary of State had not properly consented
to removal as one of the defendants. See Bailey v. Janssen Pharm.,
Inc.,
536 F.3d 1202, 1207 (11th Cir. 2008) (explaining that the una-
nimity rule of removal requires all defendants to consent to and
join a notice of removal for it to be proper). The District Court
denied the motion to remand because the Secretary of State had
not been properly served with process, so she need not have con-
sented to removal. See Pullman Co. v. Jenkins,
305 U.S. 534, 540–
41,
59 S. Ct. 347, 350 (1939) (explaining that consent for removal is
not required from defendants who were not properly served in
state court).
Next, the City filed a motion to dismiss, to which the plain-
tiffs did not properly respond. Instead of filing a memorandum in
opposition to the motion to dismiss as was required by Local Rule
7.1 of the Northern District of Florida,1 the plaintiffs filed a pro-
posed amended complaint (basically seeking leave to amend their
original complaint). That proposed amended complaint, while
containing more plaintiffs and more robust allegations of standing,
1 “A party who opposes [a] motion must file a memorandum in opposition.
Unless otherwise ordered, the deadline for a memorandum opposing a motion
(other than a summary-judgment motion) is 14 days after service of the mo-
tion, without a 3-day extension based on electronic service of the motion. The
deadline and other requirements that apply to a summary-judgment motion
are set out in Local Rule 56.1.” N.D. Fla. Loc. R. 7.1(E).
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20-14003 Opinion of the Court 5
was scrubbed of all federal claims, leaving only a few passing refer-
ences to federal law. The District Court dismissed the case as
against the City without prejudice because the plaintiffs had failed
to follow Local Rule 7.1, 2 which would have required the plaintiffs
to file a response to the motion to dismiss. The District Court also
denied leave to amend the complaint because it said amendment
would be futile on both standing and merits grounds.
Next, the plaintiffs filed a motion for reconsideration of their
motion to remand back to state court, which the District Court
again denied, because the Secretary of State had not been properly
served at the time the City removed to federal court. 3 Finally,
waiving the defects in service of process, the Secretary of State ap-
peared, consented to removal, and filed a motion to dismiss, which
the District Court granted without prejudice because, again, the
plaintiffs did not respond to the motion to dismiss in accordance
with Local Rule 7.1. Now, the plaintiffs are appealing three things:
1) the denial of leave to file a proposed amended complaint; 2) the
District Court’s grant of the City’s and the Secretary’s motions to
2 “The Court may deny a moving party’s motion if the party does not file a
memorandum as required by this rule. The Court may grant a motion by de-
fault if an opposing party does not file a memorandum as required by this
rule.” N.D. Fla. Loc. R. 7.1(H).
3 At this point, the plaintiffs could have voluntarily dismissed and refiled in
state court because the State had not yet responded to the plaintiffs’ second
attempt at service of process. Fed. R. Civ. P. 41(a)(1)(A)(i). But they chose not
to do so.
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6 Opinion of the Court 20-14003
dismiss; and 3) the District Court’s denial of the motion for recon-
sideration of remand back to state court. 4 Because the plaintiffs do
not have standing based on the original complaint, we must re-
verse the District Court’s dismissal of the plaintiffs’ complaint and
instruct the District Court to remand the case back to state court.
II.
The original complaint includes the following plaintiffs: 1)
The Ladies Memorial Association, Inc., 2) Randall Crooke, 3) The
Stephen Russell Mallory Camp 1315 of the Sons of Confederate
Veterans, 4) Save Southern Heritage, Inc., and 5) Veterans Monu-
ments of America, Inc. Here is what we know from the complaint:
The Ladies Memorial Association, Inc., helped to build the ceno-
taph in 1887 after a state commission approved the erection of a
monument in the park. The Ladies Memorial Association, Inc.,
and the Sons of Confederate Veterans organizations have used the
site of the cenotaph for memorial observances, most recently in
April 2020. The Sons of Confederate Veterans organization has
spent thousands of dollars maintaining the cenotaph. Randall
Crooke is a taxpayer resident of Pensacola, FL, descended from a
Confederate soldier, and he is a member of the local chapter of the
Sons of Confederate Veterans, the Stephen Russell Mallory Camp
1315. The Stephen Russell Mallory Camp 1315 comprises those
4 The case against the City [Case No. 21-11072] and the case against the Sec-
retary of State [Case No. 21-14003] were originally in two separate dockets
that were consolidated on appeal.
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20-14003 Opinion of the Court 7
descended from Confederate soldiers and sailors. Save Southern
Heritage, Inc., is a non-profit corporation dedicated to historic
preservation. It has a Florida chapter with members who reside in
Pensacola. Veterans Monuments of America, Inc., is a Florida not-
for-profit corporation whose purpose is to protect memorials to
American veterans.
Plaintiffs put forth a variety of federal claims,5 alleging vari-
ous harms they would experience if the cenotaph were perma-
nently removed. 6 Plaintiffs allege a violation of their First Amend-
ment rights because “removing the Cenotaph’s memorial speech is
eliminating their constitutionally guaranteed freedom of expres-
sion and speech rights.” Plaintiffs also allege a violation of their
Fifth Amendment right to Due Process based on the City’s proce-
dures for removing the cenotaph and a violation of their Equal Pro-
tection rights under the Fourteenth Amendment because only a
Confederate cenotaph (and not other monuments) is being re-
moved from the City. Finally, plaintiffs allege a § 1983 violation
because “the City acted under of [sic] color of state law in violation
5 The plaintiffs also put forth state statutory and common-law claims, which
are irrelevant for purposes of determining whether there is federal subject
matter jurisdiction in a federal question case. So, we do not address plaintiffs’
standing on those claims.
6 The District Court set the temporary restraining order, which held removal
of the cenotaph in abeyance, to end on September 7, 2020, but this temporary
restraining order ended when the District Court granted the City’s motion to
dissolve the temporary restraining order on September 2, 2020.
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8 Opinion of the Court 20-14003
of protected rights.” Plaintiffs allege that if the cenotaph were re-
moved, the area would lose state funding for historic preservation,
which would be “of irreparable harm (including economic harm)
to the Plaintiffs as taxpayers and citizens.”
The Ladies Memorial Association, Inc., the Sons of Confed-
erate Veterans, and Randall Crooke “assert their reputation and
that of their family members would be irreparably demeaned with
removal.” And Save Southern Heritage, Inc., says that it “will suf-
fer in that this significant part of Southern history in Florida would
be eliminated, as there are no plans to ever restore it in any loca-
tion.” Veterans Monuments of America, Inc., alleges that if the
cenotaph were removed the honor due to Confederate soldiers
would be irreparably harmed. And the plaintiffs all allege that they
would be irreparably harmed if the District where the cenotaph is
located were dissolved, and they think the District would be dis-
solved if the cenotaph were permanently removed. They also say
that removing the cenotaph would hurt the State’s mission of his-
toric preservation. That is the extent of alleged injury.
Standing requires the plaintiffs to allege enough facts to es-
tablish injury-in-fact, causation, and redressability. See Lujan v.
Defs. of Wildlife,
504 U.S. 555, 560–61,
112 S. Ct. 2130, 2136 (1992);
Warth v. Seldin,
422 U.S. 490, 514–17, 518,
95 S. Ct. 2197, 2215
(1975) (evaluating what the plaintiff’s complaint alleged to deter-
mine whether there were sufficient facts upon which to base stand-
ing and explaining that “[i]t is the responsibility of the complainant
clearly to allege facts demonstrating that he is a proper party to
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20-14003 Opinion of the Court 9
invoke judicial resolution of the dispute and the exercise of the
court’s remedial powers”); Muransky v. Godiva Chocolatier, Inc.,
979 F.3d 917, 924 (11th Cir. 2020) (en banc) (“[W]e are powerless
to create jurisdiction by embellishing a deficient allegation of in-
jury.” (internal quotation marks and citation omitted)).
The problem with the plaintiffs’ allegations for standing pur-
poses is that they do not amount to an injury we recognize under
Article III. See Gardner v. Mutz,
962 F.3d 1329, 1338 (11th Cir.
2020) (explaining that an injury in fact for standing purposes is a
“legally protected interest” that is both “concrete and particular-
ized” and “actual or imminent” (internal quotation marks and cita-
tions omitted)). Under Diamond v. Charles, purely psychic inju-
ries, like disagreeing with government action, are not concrete, so
they do not give rise to standing. Diamond v. Charles,
476 U.S. 54,
67,
106 S. Ct. 1697, 1706 (1986). And a mere recitation that the
Government is violating one’s constitutional rights is not concrete
enough to establish standing. Gardner, 962 F.3d at 1341 (“But
surely the naked recitation of a constitutional claim isn’t sufficient
[to give rise to standing]; if it were, every §1983 plaintiff would, by
definition, have standing to sue.”). Most of the plaintiffs’ allega-
tions of harm go only to the general disagreement with taking
down the cenotaph and a general notion that such action by the
government would violate their constitutional rights, both of
which fall short of the concreteness standard under Gardner and
Diamond respectively.
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10 Opinion of the Court 20-14003
Plaintiffs’ other vague allegations, like the removal of the
cenotaph hurting the preservation of the history of the State of
Florida, are not concrete enough to establish standing. See id. And
the plaintiffs ultimately being sad about the cenotaph being taken
down does not give rise to standing. 7 Valley Forge Christian Coll.
v. Ams. United for Separation of Church & State, Inc.,
454 U.S. 464,
485–86,
102 S. Ct. 752, 765 (1982) (holding that “the psychological
consequence presumably produced by observation of conduct with
which one disagrees . . . is not an injury sufficient to confer standing
under Art. III, even though the disagreement is phrased in consti-
tutional terms”). Finally, some of the plaintiffs claim to be Pen-
sacola taxpayers. But they never allege the cenotaph would be re-
moved with municipal taxpayer dollars, so that basis cannot give
rise to standing. 8 See Pelphrey v. Cobb Cnty.,
547 F.3d 1263, 1280
7 As to any proposed reputational harm, the plaintiffs’ allegations are so con-
clusory that they do not meet the Twombly/Iqbal standard that governs all
pleading these days. Ashcroft v. Iqbal,
556 U.S. 662, 680–81,
129 S. Ct. 1937,
1950–51 (2009); Bell Atlantic Corp v. Twombly,
550 U.S. 544, 570,
127 S. Ct.
1955, 1974 (2007). Plaintiffs never tell us how removing a cenotaph affects
their reputation or that of their families.
8 We note that we have analyzed standing under the original complaint and
not the proposed amended complaint. Even if we had analyzed standing un-
der the proposed amended complaint, we would come to the same conclusion
that subject matter jurisdiction does not exist because there are no federal
claims in the proposed amended complaint, nor is there diversity jurisdiction.
So, removal based on federal question jurisdiction would no longer stand, and
removal cannot be based on diversity jurisdiction. One of the many mysteries
of this case is that the plaintiffs, who want to be in state court, simultaneously
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20-14003 Opinion of the Court 11
(11th Cir. 2008) (explaining that municipal taxpayers must establish
that taxpayer funds were used to have standing to challenge “ex-
penditures by local governments”). So, none of the plaintiffs have
Article III standing. And the question we must now answer is what
the District Court’s next move should have been had it properly
realized that it did not have subject matter jurisdiction over this
case.
III.
When a civil case has been removed from state court to fed-
eral court, a district court must remand that removed case back to
state court when the district court does not have subject matter
jurisdiction. McGee v. Solicitor Gen. of Richmond Cnty.,
727 F.3d
1322, 1326 (11th Cir. 2013) (per curiam).
28 U.S.C. § 1447(c) says
as much: “If at any time before final judgment it appears that the
district court lacks subject matter jurisdiction, the case shall be re-
manded.”
28 U.S.C. § 1447(c). The District Court had an inde-
pendent obligation to make sure that it had subject matter jurisdic-
tion, and standing is a part of subject matter jurisdiction. McGee,
727 F.3d at 1326.
When a case is removed from state to federal court and the
plaintiffs do not have Article III standing in federal court, the
beefed up their standing allegations and removed any federal claims from their
proposed amended complaint, on the one hand bolstering their Article III
standing to be in federal court and on the other hand simultaneously removing
any federal question on which subject matter jurisdiction could be based.
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12 Opinion of the Court 20-14003
district court’s only option is to remand back to state court. See id.
(“Absent standing, the District Court lacked subject matter juris-
diction.”);
28 U.S.C. § 1447(c). The problem in this case can be
boiled down to the fact that the District Court dismissed a removed
case rather than remanding it back to state court when it did not
have subject matter jurisdiction because the plaintiffs lacked stand-
ing. And, for that reason, we reverse the District Court’s dismissal
of the plaintiffs’ complaint with instructions for the District Court
to remand this case back to state court under
28 U.S.C. § 1447(c)
where it belongs.
REVERSED.
