The opinion of the court was delivered by: Karen E. Schreier Chief Judge
Defendants State of South Dakota and Jason Gant in his official capacity as Secretary of State of South Dakota move under Rule 59(e) to amend the court's order (Docket 40) that enjoined South Dakota, Gant in his official capacity, and Mike Milstead in his official capacity. Defendants also move for judgment on the pleadings and summary judgment. Plaintiff, Wayne Smith, opposes defendants' motions.
Smith emigrated from the United Kingdom to the United States over 30 years ago when he was 15 years old. He has been a resident of the United States since 1979 and is currently a lawful permanent resident of the United States. Docket 1-1. Smith has previously applied for and obtained a permit to carry a concealed weapon in South Dakota. On July 6, 2010, Smith reapplied in Minnehaha County for a permit to carry a concealed weapon. The Minnehaha County Sheriff's Office denied Smith's application because he was not a United States citizen as required by SDCL 23-7-7.1(8). Docket 1-2.
On January 3, 2011, Smith initially brought suit against Chris Nelson in his official capacity as Secretary of State of South Dakota and Mike Milstead in his official capacity as Minnehaha County Sheriff. Docket 1. Smith then moved for a preliminary injunction and temporary restraining order. Docket 4; Docket 8. The court denied the motion for temporary restraining order and scheduled an evidentiary hearing to address the merits of Smith's requested injunctive relief. Docket 9. The hearing was scheduled to occur on January 27, 2011. Docket 9.
On January 24, 2011, South Dakota moved for leave to intervene and moved to dismiss the complaint or for summary judgment. Docket 19; Docket 25. Smith did not object to South Dakota's motion for leave to intervene. Docket 26. The court then granted South Dakota's motion for leave to intervene. Docket 27.
On January 26, 2011, the day before the scheduled hearing, Smith filed an amended complaint. Docket 31. The amended complaint identified several new defendants and identified Nelson and Milstead in their personal capacities. Specifically, the amended complaint identified South Dakota, Chris Nelson in his official and personal capacity as Secretary of State of South Dakota, Mike Milstead in his official and personal capacity as Minnehaha County Sheriff, and Jeff Gromer in his official and personal capacity as deputy sheriff. In addition to a § 1983 claim, the amended complaint also alleged a new claim under the Fourteenth Amendment.*fn1 Docket 31 at 1.
At the beginning of the January 27, 2011, hearing, several procedural matters were addressed. Docket 43 at 4-6. The court first discussed whether Chris Nelson was the appropriate individual to identify in the amended complaint because he was no longer the Secretary of State. Docket 43 at 4. Defendants' attorney did not object to the substitution of Jason Gant for Chris Nelson.*fn2 Docket 43 at 5. The attorney for South Dakota and Gant in his official capacity as Secretary of State did object, however, to the filing of the amended complaint without leave of court. Docket 43 at 5. The court overruled the objection because a motion to dismiss under Rule 12(b) had been filed by both
Nelson and South Dakota. Rule 15 states that "[a] party may amend its pleading once as a matter of course within . . . 21 days after service of a motion under Rule 12(b)[.]" Fed. R. Civ. P. 15(a)(1)(B). See Docket 43 at 5-6. Because the amended complaint was filed within 21 days after service of the motion to dismiss, the court found it was proper for Smith to file his amended complaint without leave of court. All the attorneys stated that they wanted to proceed with the hearing even though the amended complaint was filed the day before the hearing and raised several new matters. Docket 43 at 6.
After evidence was received by the court, defendants' attorney asserted arguments that had been raised previously in two separate motions to dismiss.*fn3 Docket 43 at 49-56. In South Dakota's brief in support of its motion to dismiss, South Dakota argued that "Smith may not bring a § 1983 claim against the State itself as it is not a person subject to suit thereunder." Docket 24 at 3 (citing Will v. Michigan Department of State Police, 491 U.S. 58, 70-71 (1989)). And during the hearing, South Dakota's attorney argued that South Dakota could not be a defendant because it is not a person for purposes of the § 1983 claim. Docket 43 at 53. There was no argument in the brief or at the hearing, however, that South Dakota itself could not be enjoined because the Eleventh Amendment prohibits a federal court from enjoining the state.*fn4 With regard to the Secretary of State's motion to dismiss, the brief argued that "the Secretary of State has no authority under [the] statute to grant, deny or revoke a concealed pistol permit" and that Nelson had not had the opportunity to act on Smith's application. Docket 17 at 5-6. Thus he could "not be subject to liability under § 1983." Docket 17 at 6. Nelson's counsel relied on this argument throughout the hearing. Docket 43 at 13, 49-50, 54, 74.
On February 10, 2011, the court found that Smith had succeeded in showing that SDCL 23-7-7.1(8), as applied to him, violated his right to equal protection as guaranteed under the Equal Protection Clause of the Fourteenth Amendment. Docket 40 at 13-14. After determining that Smith was entitled to permanent injunctive relief, the court enjoined South Dakota, Gant in his official capacity, and Sheriff Milstead in his official capacity from denying Smith a temporary permit because of his failure to satisfy SDCL 23-7-7.1(8). Docket 40 at
16. In issuing the order, the court did not address whether it was proper to enjoin the Secretary of State or South Dakota itself. On February 15, 2011, defendants filed the present motion to amend the order and for summary judgment. Docket 42.
I. Motion to Amend the ...