MEMORANDUM OPINION AND ORDER
Naperville Smart Meter Awareness (“NSMA”), an Illinois not-for-profit corporation, has sued the City of Naperville (“the City”) pursuant to 42 U.S.C. § 1983, alleging violations of its members’ rights to due process and liberty in bodily integrity and self-determination under the Fourteenth Amendment (Count I), freedom from unreasonable search under the Fourth Amendment (Count II), and equal
Factual Background
In Naperville, Illinois, all residential electrical utility services are provided by the Department of Public Utilities-Electric, a company owned and operated by the local city government. 2d Am. Compl. ¶ 16. In 2012, the Naperville Department of Public Utilities-Electric began replacing its customers’ analog electricity meters with smart meters as part of a local program called the Naperville Smart Grid Initiative. Id. ¶¶ 25, 73. The Naperville Smart Grid Initiative is funded in part by the U.S. Department of Energy, which received $4.5 billion of federal tax dollars under the American Recovery and Reinvestment Act of 2009 for the purpose of modernizing the nation’s electrical power grid. Id. ¶ 25. The objectives of the Na-perville Smart Grid Initiative include increasing energy efficiency, reducing emissions, and lowering electricity consumption costs. Id. Ex. A, Attach. E, Statement of Project Objectives.
Like analog meters, smart meters measure customers’ total residential electricity usage for monthly billing purposes. Id. ¶ 35. Unlike analog meters, however, smart meters are equipped with wireless radio transmitters that, when activated, send usage data via radio-frequency waves to nearby neighborhood “network access points,” which then relay usage data to Naperville’s Department of Public Utilities-Electric. Id. ¶¶ 41-42. The functionality of smart meters thus obviates the need for the City to send in-person meter readers to residents’ homes. See id. Another difference is that, while analog meters are capable of measuring only total accumulated electricity consumption, smart meters measure aggregate electricity usage much more frequently, in intervals of fifteen minutes. Id. ¶¶ 33, 35.
As an alternative to having new smart meters installed in their homes, Naperville residents may opt to have their old analog meters replaced with “non-wireless meters.” Id. ¶ 177. These “non-wireless meter alternatives” are essentially smart meters with their radio transmitters deactivated so that they emit no radio-frequency waves and must be read manually by a meter reader each month. See id. ¶¶ 179-80. Residents who choose the non-wireless meter alternative must pay a onetime installation fee of $68.35, plus an additional monthly fee of $24.75. Id. ¶ 181.
NSMA is an Illinois not-for-profit corporation whose stated mission is to “educate, engage and empower families, friends and neighbors to advocate for a fiscally responsible and safe utility meter solution in Naperville, Illinois.” Id. ¶ 8. NSMA alleges that the radio-frequency waves that
NSMA now brings a number of constitutional and federal claims in connection with its various objections to the implementation of the Naperville Smart-Grid Initiative. First, NSMA claims that the City has deprived its members of their right to bodily integrity and self-determination under the Fourteenth Amendment by installing unsafe smart meters without first giving residents an opportunity to oppose the Naperville Smart Grid Initiative at a public hearing or through the referendum process. Id. ¶¶ 217-20. NSMA also alleges that the City’s collection of detailed smart-meter data constitutes an unreasonable search of information under the Fourth Amendment. Id. ¶ 229. Next, NSMA alleges that the City has violated its members’ right to equal protection, both by charging fees for the non-wireless meter alternative as well as by denying requests by NSMA members to retain analog meters for medical reasons while granting similar requests made by non-members. Id. ¶¶ 240-42. Finally, NSMA claims that imposing fees on residents who opt for the non-wireless meter alternative discriminates against certain disabled residents who are especially threatened by health risks related to smart meters. Id. ¶¶ 251-54. NSMA seeks an injunction ordering the City to make analog meters and non-wireless meters available at no additional cost upon customer request. Id. Prayer for Relief ¶ 2.
Earlier in this litigation, the Court granted the City’s motion to dismiss NSMA’s First Amended Complaint with leave to amend some of the counts therein. NSMA has since filed a Second Amended Complaint. The City now moves to dismiss the Second Amended Complaint pursuant to Rules 12(b)(1) and 12(b)(6).
Discussion
I. Subject Matter Jurisdiction
As a preliminary matter, the City moves to dismiss NSMA’s claims for lack of subject matter jurisdiction pursuant to Rule 12(b)(1). In particular, the City asserts that NSMA lacks standing to bring its claims and that this case is moot. The Court will address these two arguments in turn, taking as true all facts alleged in the Second Amended Complaint and drawing all reasonable inferences in NSMA’s favor. See Miller v. F.D.I.C.,
A. NSMA Has Associational Standing
The City first argues that NSMA lacks standing to bring this case. Although the City already raised, and the Court analyzed, this issue in the City’s first motion to dismiss, the City has emphasized slightly different arguments in its second motion to dismiss, and so the Court will address the issue of standing — and the question of subject matter jurisdiction — anew. Vill. of
The doctrine of standing stems from Article III of the United States Constitution, which limits the scope of judicial authority to the adjudication of actual cases and controversies. See Lac Du Flambeau Band of Lake Superior Chippewa Indians v. Norton,
An association has standing to bring suit as a representative of its members, even absent an injury to the association itself, when: “(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 in the lawsuit.” Hunt,
When reviewing a facial challenge to standing, “allegations are taken as true and construed in a light most favorable to the complainant.” Cedars-Sinai Med. Ctr. v. Watkins,
For these reasons, the Court finds that NSMA has associational standing to bring all claims in this case. The Court thus denies the City’s motion to dismiss for lack of standing.
B. NSMA’s Claims Are Not Moot
Next, the City argues that this case should be dismissed as moot on the grounds that “NSMA has asked this Court to halt the [smart meter] project and order the City to allow residents to retain their analog meters,” when the City has by now substantially completed the smart-meter installation process. Def.’s Mem. Supp. Mot. Dismiss 5.
A case becomes moot when the original dispute between the parties ceases to exist or when one of the parties ceases to have a personal interest in the outcome of the case. See Banks v. National Collegiate Athletic Ass’n,
Given this statement from NSMA’s prayer for relief, it is clear that the City’s mootness argument relies entirely on a mischaracterization of the remedy NSMA seeks: NSMA asks not for smart-meter installation to be enjoined, but for smart meters to be replaced with alternative types of meters upon Naperville residents’ request. See id. Prayer for Relief. As such, given the alleged injuries underlying this case and the form of relief sought, the Court finds that the original dispute between the parties continues to exist. The Court therefore concludes that this case is not moot and denies the City’s motion to dismiss pursuant to Rule 12(b)(1).
II. Motion to Dismiss for Failure to State a Claim
The City also moves to dismiss NSMA’s claims under Rule 12(b)(6). To survive a motion to dismiss pursuant to Rule 12(b)(6), NSMA’s complaint must “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal,
NSMA first claims that the City’s installation of smart meters violates NSMA members’ due process rights to bodily integrity and self-determination under the Fourteenth Amendment. More specifically, NSMA claims that the City did not provide Naperville residents with notice and an opportunity to be heard before installing smart meters in their homes, and that radio frequency waves emitted by smart meters in the homes of its members and its members’ neighbors pose health risks. 2d Am. Compl. ¶¶ 216-20.
The Fourteenth Amendment provides that the government shall not “deprive any person of life, liberty, or property without due process of law.” U.S. Amend. XIV. But “there can be no claim of a denial of due process, either substantive or procedural, absent deprivation of either a liberty or a property right.” Eichman v. Ind. State Univ. Bd. of Trs.,
NSMA’s due process claim fails because its allegations do not identify an arbitrary deprivation of a recognized liberty or property interest. At most, even assuming as true that radio frequency waves emitted by smart meters are capable of causing harm, NSMA’s allegations suggest only that the City negligently increased a risk of injury. Allegations of such risk exposure are insufficient to state a claim for deprivation of bodily integrity under the Fourteenth Amendment. See Upsher v. Grosse Pointe Pub. Sch. Sys.,
Moreover, even if, assuming arguendo, NSMA’s complaint had identified a deprivation of a cognizable liberty or property interest, its due process claim still could not survive a motion to dismiss, because
Because NSMA has identified neither a deprivation of a recognized liberty or property interest nor an arbitrary government action, NSMA has failed to state a due process claim under the Fourteenth Amendment arising from the City’s decision to install smart meters through the Naperville Smart Grid Initiative. The Court accordingly grants the City’s motion to dismiss Count I of NSMA’s Second Amended Complaint.
B. Fourth Amendment Claim
In Count II, NSMA alleges that the City’s installation of smart meters capable of measuring the aggregate electricity usage of an individual home in fifteen-minute intervals constitutes an unreasonable search and an invasion of privacy under the Fourth Amendment. The Fourth Amendment provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated,” and it has been held to guarantee individual privacy from some forms of government intrusion. U.S. Amend. IV; see Katz v. United States,
As this Court has held previously, NSMA members have no reasonable expectation of privacy in the aggregate measurements of their electrical usage. See Naperville Smart Meter Awareness v. City of Naperville, No. 11-C-9299,
NSMA nevertheless insists that data showing aggregate residential power usage
Additionally, NSMA cannot state a claim under the Fourth Amendment based on an unreasonable search of protected information when the allegations show that no such information has been recorded or obtained. Because NSMA has not alleged that the City is collecting any information that is more detailed than aggregate usage measurements, or that is otherwise entitled to protection under the Fourth Amendment, NSMA has failed to state a claim for unreasonable search and seizure. The Court accordingly grants Defendant’s motion to dismiss Count II of NSMA’s Second Amended Complaint.
C. Equal Protection Claim
In Count III, NSMA alleges that the City violated its members’ rights to equal protection under the Fourteenth Amendment in two ways. First, NSMA claims that the fees imposed on the class of Na-perville residents opting for non-wireless meters impermissibly penalize that class with no rational basis. 2d Am. Compl. ¶ 240. Second, NSMA claims that the City has discriminatorily retaliated against NSMA members by granting requests by non-members to retain analog meters for medical reasons while denying similar requests made by NSMA members. Id. ¶ 242.
The Equal Protection Clause of the Fourteenth Amendment provides that government actors may not “deny to any person ... the equal protection of the laws.” U.S. Const. Amend. XFV, § 1. “Local governing bodies can be sued directly under § 1983 ... where, as here, the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body’s officers.” Monell v. Dep’t of Social Servs. of City of New York,
Under this analytical framework, to the extent that NSMA’s equal protection claim is based on the fees accompanying non-wireless meters, NSMA has failed to state a plausible equal protection claim. Although NSMA asserts that the fees accompanying non-wireless meters are “penalty fees” that “impermissibly create two unequal classes customers ... without rational basis,” see, e.g., 2d Am. Compl. ¶ 240, these are bare legal conclusions that do not alone state a plausible claim for relief. See McCauley,
The same cannot be said, however, of NSMA’s allegations that the City has intentionally discriminated against its members by refusing their requests to retain analog meters for medical reasons, while simultaneously granting similar requests by similarly situated non-members. 2d Am. Compl. ¶ 242. Here, NSMA supports its equal protection claim with specific factual allegations of a practice of dissimilar treatment that has no obvious alternative explanation. Id. Additionally, NSMA alleges that representatives of the City undertook these discriminatory acts out of improper personal motives and ill-will towards NSMA, and NSMA supports these allegations with numerous factual examples. See id. ¶¶ 198-212. Thus, NSMA has sufficiently stated an equal protection claim based on the City’s disparate treatment of members and nonmembers requesting to retain analog meters for medical reasons. See Nettles-Bey v. Cars Collision Center, LLC, No. 11-C-8022,
For these reasons, the Court grants the City’s motion to dismiss NSMA’s equal protection claim to the extent that it is based on the City’s decision to charge fees to residents opting to receive non-wireless meters. The Court denies the City’s motion to dismiss with respect to the equal protection claim arising from the unfavorable treatment of NSMA members relative to non-members who have been allowed to retain analog meters for medical reasons.
Finally, NSMA claims that the City violated both Titles II and III of the ADA by implementing an electricity services program that discriminates against disabled residents and failing to accommodate disabled residents with free analog or non-wireless meters. The Court will address each of these claims in turn.
Title II of the ADA provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. To state a claim under Title II, a plaintiff must allege that (1) he is disabled under the ADA, (2) he is qualified for the benefits he sought, (3) he was denied those benefits or otherwise discriminated against on account of his disability, and (4) the defendant is a public entity. See Hale v. Pace, No. 09-C-5131,
NSMA rests its Title II claim on its allegations that the City denied qualified disabled members the benefits of safe electricity services by denying their requests to retain analog meters and failing to give them a non-wireless meter alternative at no cost. 2d Am. Compl. ¶¶ 252-54. But NSMA has pleaded itself out of its Title II claim by also alleging that disabled NSMA members were denied such benefits not on the basis of disability, but on-the basis of NSMA membership.
NSMA has similarly pleaded itself out of its Title III claim. Title III of the ADA only applies to prohibit discrimination by private entities, and not by public entities. See 42 U.S.C. §§ 12181-89. As a unit of local government, the City is a public entity. See 2d Am. Compl. ¶¶ 13, 15; 42 U.S.C. § 12181(6) (“The term ‘private entity’ means any entity other than a public entity (as defined in section 12131(1) of this title).”); 42 U.S.C. § 12161(1)(A) (“The term ‘public entity’ means any State or local government.”). Therefore, NSMA cannot bring a claim against the City under Title III of the ADA. See Baaske v. City of Rolling Meadows,
For these reasons, NSMA has failed to state a claim in Count IV by pleading itself out of court with regard to its Title II and Title III ADA claims. The Court accordingly grants the City’s motion to dismiss Count IV pursuant to Rule 12(b)(6).
The City has also moved for sanctions against NSMA pursuant to Rule 11. Rule 11(b) provides that, by signing or filing any court paper, an attorney certifies that the paper “is not being presented for any improper purpose,” that the claims “are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law,” and that “the factual contentions have evidentiary support.” Fed. R. Civ. P. 11(b)(1) — (3). The City contends that NSMA- violated Rule 11 by filing a Second Amended Complaint for an improper purpose, advancing unwarranted legal arguments, and failing to allege facts with evidentiary support.
“[A]n attorney need not advance a winning argument to avoid Rule 11 sanctions.” LaSalle Nat. Bank of Chi. v. Cnty. of DuPage,
Nothing in the proceedings thus far indicates that this lawsuit has been filed for an improper purpose within the meaning Rule 11(b)(1). Rather, the stated purpose of the suit — to obtain injunctive relief aimed at increasing the number of alternatives to smart-meter installation in Naperville homes — appears legitimate, given NSMA’s stated organizational purpose “to advocate for a fiscally responsible and safe utility meter solution in Naperville, Illinois.” 2d Am. Compl. ¶ 8. Furthermore, although the Court finds that many of the claims in NSMA’s Second Amended Complaint are insufficient for purposes of Rule 12(b)(6), as discussed supra in Part II, NSMA’s claims present many unusual or novel questions of law and are not merely frivolous claims warranting sanctions under Rule 11(b)(2). Cf. LaSalle,
Accordingly, the Court finds that NSMA has not violated the requirements of Rule 11 by filing its Second Amended Complaint. The Court therefore denies the City’s motion for sanctions.
Conclusion
For the reasons provided herein, the Court grants in part and denies in part the City’s motion to dismiss pursuant to Rule 12(b)(6) [77]. The Court grants the City’s motion to dismiss Counts I, II, and IV of NSMA’s Second Amended Complaint. The Court denies the City’s motion to dismiss Count III to the extent that it alleges an equal protection violation based on the unfavorable treatment NSMA members have received relative to non-members who have been allowed to retain analog meters for reasonable medical reasons. In all other respects, Count III of NSMA’s Second Amended Complaint is dismissed. The Court also denies the City’s motion for sanctions [84].
SO ORDERED
Notes
. The following facts are taken from NSMA’s Second Amended Complaint and the exhibits attached thereto, which the Court may consider as part of the pleadings without converting this motion to dismiss into a motion for summary judgment. See Fed. R. Civ. P. 10(c); Miller v. Herman,
. The allegation that the City discriminated against NSMA members on the basis of their membership itself is, in fact, the foundation of NSMA’s equal protection class-of-one claim, discussed supra in Part II.C.