Southern Walk at Broadlands Homeowner's Ass'n v. OpenBand at Broadlands, LLC , 713 F.3d 175 ( 2013 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
SOUTHERN WALK AT BROADLANDS 
HOMEOWNER’S ASSOCIATION, INC.,
Plaintiff-Appellant,
v.  No. 12-1331
OPENBAND AT BROADLANDS, LLC,
Defendant-Appellee.

SOUTHERN WALK AT BROADLANDS 
HOMEOWNER’S ASSOCIATION, INC.,
Plaintiff-Appellee,
v.  No. 12-2083
OPENBAND AT BROADLANDS, LLC,
Defendant-Appellant.

Appeals from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Gerald Bruce Lee, District Judge.
(1:11-cv-00517-GBL-TCB)
Argued: January 29, 2013
Decided: April 5, 2013
Before WILKINSON, MOTZ, and THACKER,
Circuit Judges.
2 SOUTHERN WALK v. OPENBAND
No. 12-1331 affirmed in part and vacated and remanded in
part; No. 12-2083 affirmed by published opinion. Judge Motz
wrote the opinion, in which Judge Wilkinson and Judge
Thacker joined.
COUNSEL
ARGUED: Kurt Charles Rommel, MILES & STOCK-
BRIDGE, McLean, Virginia, for Appellant/Cross-Appellee.
Sanford M. Saunders, Jr., GREENBERG TRAURIG, LLP,
Washington, D.C., for Appellee/Cross-Appellant. ON
BRIEF: Harvey B. Cohen, Christopher E. Brown, MILES &
STOCKBRIDGE, McLean, Virginia; Constance J. Miller,
CONSTANCE J. MILLER, ESQ., McLean, Virginia, for
Appellant/Cross-Appellee. Laura Metcoff Klaus, GREEN-
BERG TRAURIG, LLP, Washington, D.C., for
Appellee/Cross-Appellant.
OPINION
DIANA GRIBBON MOTZ, Circuit Judge:
Southern Walk at Broadlands Homeowners Association
brought this action seeking a declaratory judgment against
OpenBand at Broadlands, the corporation with which it had
contracted in 2001 for wire-based video services. Southern
Walk alleges that the 2007 Exclusivity Order issued by the
Federal Communications Commission renders "null and void"
OpenBand’s exclusive rights under the 2001 contracts to pro-
vide such wire-based video services to Southern Walk home-
owners. In these cross appeals, Southern Walk challenges the
district court’s dismissal of its action with prejudice, and
OpenBand challenges the court’s refusal to award it attorneys’
fees. For the reasons that follow, we affirm the judgment of
the district court to the extent it held that Southern Walk
SOUTHERN WALK v. OPENBAND 3
failed to allege facts supporting standing in this case, but
vacate that judgment to the extent it dismissed the case with
prejudice, and remand with instructions to dismiss without
prejudice. We affirm the court’s denial of attorneys’ fees to
OpenBand.
I.
A.
Southern Walk at Broadlands (the "community") is a
planned residential development consisting of over 1100 indi-
vidually owned properties. In 2001, the developer of the com-
munity, Broadlands Associates, incorporated Southern Walk
at Broadlands Homeowners Association, Inc. ("Southern
Walk") as a Virginia non-stock corporation. Southern Walk’s
articles of incorporation state that its purposes are to "assure
maintenance, preservation and architectural control" of, and
"provide, or cause to provide for, the installation and mainte-
nance of an exclusive private utility system" within, the com-
munity.
In November 2001, shortly after being incorporated, South-
ern Walk executed a Telecommunications Services Agree-
ment ("TSA") with OpenBand for the provision of certain
"platform" telephone, internet, and video services for the
community’s member households.1 The TSA requires that
each household in the community purchase platform services
from OpenBand, regardless of whether the household actually
uses the services. Households pay for OpenBand’s services
through their homeowners’ association assessments. If any
household defaults on its assessments, Southern Walk must
pay OpenBand for the services. The TSA allows individual
1
The TSA defines "platform" services as "Telephone Services, Internet
Services and Video Services for which residents pay as a part of their
required [homeowners’ association] fee." Platform services are distinct
from premium services, which are provided "on an elective basis."
4 SOUTHERN WALK v. OPENBAND
households to obtain additional (but not replacement) plat-
form services from alternative providers. However, Southern
Walk itself may "not engage any other provider of Platform
Services" for the community.
Also in November 2001, Broadlands Communications—a
Broadlands Associates subsidiary—conveyed to OpenBand
an "Easement[ ] for the Exclusive Provision of Telecommuni-
cations Services for Southern Walk at Broadlands." This per-
petual easement grants OpenBand "the exclusive right to
Operate Utilities on, under and across [the community] such
that, no other person or entity other than [OpenBand] . . . shall
be entitled to Operate any Utilities on, under or across [the
community] without the written consent of [OpenBand]."
"Utilities" include both above- and below-ground infrastruc-
ture "necessary for the collection, provision, distribution and
transmission of video, telephonic, [and] internet . . . services."
As further protection for OpenBand’s exclusive right,
Broadlands Communications, Broadlands Associates, and
Broadlands Association, Inc., all covenanted that "they shall
not grant any easement other than [this] Easement to Operate
any Utilities on, under or across" the community. Southern
Walk itself covenanted that it "shall not take any action incon-
sistent with the terms of this Easement Deed and the rights
herein granted." OpenBand, however, retained the ability to
transfer or assign its rights and grant sub-easements. Soon
thereafter, OpenBand began providing platform services to
Southern Walk’s member households pursuant to the TSA
and its easement; OpenBand remains the only provider of
platform services for Southern Walk’s member households
today.
B.
In 2007, nearly seven years after the execution of the TSA
and the easement, the FCC issued the Exclusivity Order. See
In the Matter of Exclusive Service Contracts for Provision of
SOUTHERN WALK v. OPENBAND 5
Video Services in Multiple Dwelling Units and Other Real
Estate Developments, 22 FCC Rcd. 20235 (2007). The Exclu-
sivity Order addresses "the need to regulate contracts contain-
ing clauses granting one multichannel video programming
distributor . . . exclusive access for the provision of video ser-
vices (‘exclusivity clauses’) to multiple dwelling units . . . and
other real estate developments." Id. ¶ 1.
Of particular concern to the FCC were contractual clauses
between multiple dwelling unit or real estate development
owners and wire-based cable television providers that "pro-
hibit any other [provider] from any access whatsoever to the
premises of the [multiple dwelling unit] building or real estate
development." Id. ¶ 1 n.2. The FCC found that "contractual
agreements granting such exclusivity . . . harm competition
and broadband deployment and that any benefits to consumers
are outweighed by the harms of such clauses." Id. at ¶ 1. Lack
of choice for consumers, stagnation in innovation and services
due to lack of competition, and the inefficient use of existing
telecommunications infrastructure topped the list of harms the
FCC identified. Id. ¶¶ 17-23.
As a result of its findings, and pursuant to its authority
under 47 U.S.C. § 548, the FCC ordered that
no cable operator . . . shall enforce or execute any
provision in a contract that grants it the exclusive
right to provide any video programming service
(alone or in combination with other services) to a
[multiple dwelling unit]. Any such exclusivity clause
shall be null and void.
Id. ¶ 31 (codified at 47 C.F.R. § 76.2000). For the purposes
of the order, a "multiple dwelling unit" includes "centrally
managed residential real estate developments." Id. ¶ 7. The
District of Columbia Circuit upheld the Exclusivity Order in
2009. See Nat’l Cable & Telecomm. Ass’n v. FCC, 567 F.3d
659, 661 (D.C. Cir. 2009).
6 SOUTHERN WALK v. OPENBAND
After publication of the Exclusivity Order, Southern Walk
began exploring opportunities "to allow other Loudoun
County franchisees of cable [television] to have access to the
Southern Walk at Broadlands community" and thereby pro-
vide its member households expanded choices in wire-based
video services. On October 5, 2010, Southern Walk wrote a
letter to OpenBand stating its belief that the TSA and ease-
ments created an "overall scheme" of wire-based video ser-
vice exclusivity that violates the Exclusivity Order. Southern
Walk requested modifications to the terms of both the TSA
and the easements, but OpenBand’s representatives insisted
that OpenBand would enforce both "as is."
Southern Walk then attempted to negotiate with competing
wire-based video service providers for its member house-
holds. These providers, however, refused their services,
explaining that provisions in the TSA and easement prevented
their access to the community. Verizon explained that it could
not provide FiOS services to the community "because of
[Southern Walk’s] exclusive agreement & access [easement]
with OpenBand Communications." Similarly, Comcast
informed Southern Walk that it could not provide wire-based
video services to its member households "because of Open-
Band’s exclusive easements."
C.
On May 13, 2011, Southern Walk filed this action against
OpenBand seeking a declaration that the exclusivity provi-
sions in the TSA, easement, and other ancillary agreements
are illegal and unenforceable under the Exclusivity Order and
state law. A few months later, Southern Walk amended the
complaint to allege that the TSA and easement combine to
create an "overall scheme" giving "OpenBand exclusive
access to the [community] and have had the effect of actually
precluding any other wire-based video provider from gaining
access to the [community]," in violation of the Exclusivity
Order.
SOUTHERN WALK v. OPENBAND 7
OpenBand moved to dismiss the amended complaint. The
district court granted the motion and dismissed the case with
prejudice. The court held that Southern Walk lacked standing
to bring any federal claim, and that, even if it had standing,
the Exclusivity Order did not support the declaratory relief
sought. The court also declined to exercise supplemental
jurisdiction over the state law claims, and denied Southern
Walk’s motion for leave to amend its complaint a second
time.
OpenBand later moved for attorneys’ fees pursuant to the
fee-shifting provision in the TSA. While that motion was
pending, Southern Walk timely appealed the dismissal of its
action for declaratory judgment under the Exclusivity Order.
The district court subsequently denied OpenBand’s motion
for attorneys’ fees, and OpenBand timely appealed that
denial. We consolidated the two cases on appeal.
II.
We review a district court’s dismissal for lack of standing
de novo. White Tail Park, Inc. v. Stroube, 413 F.3d 451, 459
(4th Cir. 2005). Plaintiffs bear the burden of establishing
standing. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561
(1992).
"When standing is challenged on the pleadings, we accept
as true all material allegations of the complaint and construe
the complaint in favor of the complaining party." David v.
Alphin, 704 F.3d 327, 333 (4th Cir. 2013). However, we need
not accept factual allegations "that constitute nothing more
than ‘legal conclusions’ or ‘naked assertions.’" Id. (quoting
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). Moreover, we
are "powerless to create [our] own jurisdiction by embellish-
ing otherwise deficient allegations of standing." Whitmore v.
Arkansas, 495 U.S. 149, 155-56 (1990).
When addressing the appropriateness of dismissal for lack
of standing, we consider exhibits attached to the complaint in
8 SOUTHERN WALK v. OPENBAND
addition to the complaint itself. Fed. R. Civ. P. 10(c); Katyle
v. Penn Nat’l Gaming, Inc., 637 F.3d 462, 466 (4th Cir.
2011). "[I]n the event of conflict between the bare allegations
of the complaint and any exhibit attached [to the complaint,]
. . . the exhibit prevails." Fayetteville Investors v. Commercial
Builders, Inc., 936 F.2d 1462, 1465 (4th Cir. 1991).
An organization like Southern Walk can assert standing
either in its own right or as a representative of its members.
Md. Highways Contractors Ass’n, Inc. v. Maryland, 933 F.2d
1246, 1250 (4th Cir. 1991). Southern Walk claims both types
of standing here, and we consider each in turn.
A.
An organization claiming standing in its own right must
adequately allege that "(1) it has suffered an ‘injury in fact’
that is (a) concrete and particularized and (b) actual or immi-
nent, not conjectural or hypothetical; (2) the injury is fairly
traceable to the challenged action of the defendant; and (3) it
is likely, as opposed to merely speculative, that the injury will
be redressed by a favorable decision." Friends of the Earth,
Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-
81 (2000).
Southern Walk first argues that it has standing in its own
right because it is a party to many of the contracts that
together set forth OpenBand’s exclusivity rights. Although a
party to a contract containing allegedly illegal provisions
often will have standing to challenge that contract, simply
being a party to the contract does not alone establish Article
III standing. An organizational plaintiff must still demonstrate
personal harm both traceable to the challenged provisions and
redressable by a federal court.
Southern Walk contends that it is harmed personally by the
TSA requirement that it pay for all platform services from
OpenBand for which its member households fail to pay. How-
SOUTHERN WALK v. OPENBAND 9
ever, any economic injury to Southern Walk due to this provi-
sion of the TSA is non-redressable.2 This is so because
regardless of the challenged exclusivity arrangement, it is the
bulk billing provisions in the TSA that require this payment.
The "bulk billing arrangement" is a legally permissible
arrangement "in which one [video service provider] provides
video service to every resident of a[ ] [multiple dwelling unit
development], usually at a significant discount from the retail
rate that each resident would pay if he or she contracted with
the [provider] individually." In the Matter of Exclusive Ser-
vice Contracts for Provision of Video Services in Multiple
Dwelling Units and Other Real Estate Developments, 25 FCC
Rcd. 2460, 2461 (2010).
Southern Walk does not challenge the bulk billing arrange-
ment and so it would be unaffected by any favorable declara-
tion nullifying OpenBand’s contractual exclusivity rights. In
effect, Southern Walk, as it admitted at oral argument, must
pay for OpenBand’s services regardless of the outcome of
this action. Therefore, its asserted injury, though concrete and
actual, is simply not redressable in this action. See Comite de
Apoyo a los Trabajadores Agricolas (CATA) v. U.S. Dep’t of
Labor, 995 F.2d 510, 513 (4th Cir. 1993) ("By itself, a declar-
atory judgment cannot be the redress that satisfies the third
standing prong. Rather, plaintiffs must identify some further
concrete relief that will likely result from the declaratory
judgment.").
Further, Southern Walk fails to allege that any other effects
of the exclusivity arrangement amount to a personal harm to
it. Southern Walk does not allege that it is a consumer of
OpenBand’s wire-based video services. Compare Lansdowne
2
Although we characterize the issue as one of redressability, Southern
Walk also fails to demonstrate traceability for the same reasons. See Nova
Health Sys. v. Gandy, 416 F.3d 1149, 1159 (10th Cir. 2005) ("In this case,
like many, redressability and traceability overlap as two sides of a causa-
tion coin." (internal quotation marks omitted)).
10 SOUTHERN WALK v. OPENBAND
on the Potomac Homeowners Ass’n v. Openband at Lans-
downe, LLC, No. 12-1925, slip op. at 10 (April 5, 2013). Nor
does Southern Walk allege that it intends to purchase such
wire-based video services from OpenBand’s competitors for
its own use but that the exclusivity arrangement prevents it
from doing so. In short, Southern Walk does not allege any
economic injury to itself caused by the exclusivity arrange-
ment. Any consumer harm the arrangement causes injures
Southern Walk’s member households—not Southern Walk in
its own right.
Alternatively, Southern Walk maintains that it has standing
in its own right because the exclusivity arrangement "inter-
feres with [its] ability to obtain cable-based services for its
constituents." This argument fares no better. In its articles of
incorporation, Southern Walk states that one of its purposes
is "to provide, or cause to provide for, the installation and
maintenance of an exclusive private utility system within the
Property," and, for this purpose, Southern Walk has the
authority to "[p]romote and provide for the . . . general wel-
fare of" its member households. But Southern Walk does not
allege in its amended complaint that the exclusivity arrange-
ment frustrates its stated organizational purpose.3 And, even
if it had, an injury to organizational purpose, without more,
does not provide a basis for standing. See Sierra Club v. Mor-
ton, 405 U.S. 727, 739 (1972); Md. Highways Contractors
Ass’n, 933 F.2d at 1250-51; cf. Havens Realty Corp. v. Cole-
man, 455 U.S. 363, 379 (1982) (finding standing when
"broadly alleged" impairment of an organization’s ability to
advance its purposes combined with an alleged "consequent
drain on the organization’s resources").
3
We note that in its amended complaint, Southern Walk also overstates
its corporate purpose by alleging that its "sole purpose is to administer the
[TSA] . . . for the benefit of the homeowners in the community." The plain
language of its articles of incorporation simply does not reflect this exag-
geration.
SOUTHERN WALK v. OPENBAND 11
For these reasons, we agree with the district court that
Southern Walk failed to plead facts sufficient to support
standing in its own right.
B.
Because Southern Walk alleges no injury to itself in its own
right, it "can establish standing only as [a] representative[ ] of
[its] members who have been injured in fact, and thus could
have brought suit in their own right." Simon v. E. Ky. Welfare
Rights Org., 426 U.S. 26, 40 (1976).
To plead representational standing, an organization must
allege that "(1) its own members would have standing to sue
in their own right; (2) the interests the organization seeks to
protect are germane to the organization’s purpose; and (3)
neither the claim nor the relief sought requires the participa-
tion of individual members in the lawsuit." Md. Highways
Contractors Ass’n, 933 F.2d at 1251 (citing Hunt v. Wash.
State Apple Adver. Comm’n, 432 U.S. 333, 343 (1977)).
The Supreme Court has clarified that to show that its mem-
bers would have standing, an organization must "make spe-
cific allegations establishing that at least one identified
member had suffered or would suffer harm." Summers v.
Earth Island Inst., 555 U.S. 488, 498 (2009) (emphasis
added). Southern Walk has failed to identify a single specific
member injured by the exclusivity arrangement. This failure
to follow the requirement articulated in Summers would seem
to doom its representational standing claim. Southern Walk,
however, argues that the Summers identification requirement
does not apply here for two reasons.
First, Southern Walk contends that the Summers directive
should be limited to its facts, applying only to large, diverse
advocacy groups with voluntary membership, like national
environmental organizations. In effect, Southern Walk asks us
to create an exception to Summers for smaller, presumably
12 SOUTHERN WALK v. OPENBAND
more homogenous, groups with mandatory membership, like
homeowners’ associations. However logical this distinction
may be, the plain language of Summers admits no such excep-
tion. 555 U.S. at 498-99. And although we recognize that
applying Summers to all representational standing claims
places a burden on organizational plaintiffs, such a burden
accords with our obligation under Article III to ensure that
"‘the plaintiff is the proper party to bring [the] suit.’" See
White Tail Park, 413 F.3d at 460 (quoting Raines v. Byrd, 521
U.S. 811, 818 (1997)). Further, any such burden is surely
insubstantial in cases like this one, "whe[re] so many thou-
sands are alleged to have been harmed." See Summers, 555
U.S. at 499. Thus, we refuse to adopt the exception to Sum-
mers that Southern Walk advocates.
Alternatively, Southern Walk argues on appeal that it has
satisfied Summers’ requirement by alleging that "[e]ach of
Southern Walk’s members" is harmed by the exclusivity
arrangement. Summers does retain a limited exception to its
identification requirement for cases in which all members of
an organization are harmed. Summers, 555 U.S. at 499 (citing
NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 459
(1958)). But Southern Walk has failed to allege such a case.
For, contrary to Southern Walk’s appellate argument, its
amended complaint does not allege that all of its members
were harmed. The amended complaint alleges only that
"Southern Walk [which the amended complaint defines, as we
have, as the "Southern Walk Homeowners Association, Inc."]
is being harmed." Thus, Southern Walk’s complaint only
alleges that it, the homeowners’ association, is being harmed
—not that any, let alone all, of its individual members are.
It is well-established that parties cannot amend their com-
plaints through briefing or oral advocacy. See Car Carriers,
Inc. v. Ford Motor Co., 745 F.2d 1101, 1107 (7th Cir. 1984);
accord E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc.,
637 F.3d 435, 449 (4th Cir. 2011) ("[S]tatements by counsel
that raise new facts constitute matters beyond the pleadings
SOUTHERN WALK v. OPENBAND 13
and cannot be considered on a Rule 12(b)(6) motion."). More-
over, contrary to Southern Walk’s contention, an allegation
that "Southern Walk [the homeowners’ association] is being
harmed" simply does not equate to an allegation that each or
all of Southern Walk’s members are "being harmed" as well.
Such an interpretation of the amended complaint would blur
the important distinctions between standing based on an orga-
nization’s injury in its own right and representational standing
based on injury to its members.
Furthermore, although it is possible that each Southern
Walk member is "being harmed" by the exclusivity arrange-
ment, Southern Walk’s terse allegation of its injury—without
specific mention of any individual member’s injury—surely
"‘stops short of the line between possibility and plausibility,’"
Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 557 (2007)), for the purposes of the limited "all
members" exception to the Summers identification require-
ment. For the allegations in the complaint provide no indica-
tion that every Southern Walk member household actually
desires alternative wire-based video services. Accordingly,
Southern Walk has failed to allege representational standing.
C.
Although we conclude that Southern Walk failed to plead
facts adequate to establish either individual or representa-
tional standing, we cannot affirm the district court’s ultimate
dismissal of Southern Walk’s amended complaint with preju-
dice.
A dismissal for lack of standing—or any other defect in
subject matter jurisdiction—must be one without prejudice,
because a court that lacks jurisdiction has no power to adjudi-
cate and dispose of a claim on the merits. See Fed. R. Civ. P.
41(b); Semtek Int’l Inc. v. Lockheed Martin Corp., 531 U.S.
497, 505 (2001); Steel Co. v. Citizens for a Better Env’t, 523
U.S. 83, 93-94 (1998); Interstate Petroleum Corp. v. Morgan,
14 SOUTHERN WALK v. OPENBAND
249 F.3d 215, 222 (4th Cir. 2001) (en banc); see also Brere-
ton v. Bountiful City Corp., 434 F.3d 1213, 1218 (10th Cir.
2006) ("[D]ismissals for lack of jurisdiction should be without
prejudice because the court, having determined that it lacks
jurisdiction over the action, is incapable of reaching a disposi-
tion on the merits of the underlying claims."); Frederiksen v.
City of Lockport, 384 F.3d 437, 438 (7th Cir. 2004) ("A suit
dismissed for lack of jurisdiction cannot also be dismissed
‘with prejudice’; that’s a disposition on the merits, which only
a court with jurisdiction may render. . . . ‘No jurisdiction’ and
‘with prejudice’ are mutually exclusive." (internal citation
omitted)).
Accordingly, we affirm the judgment of the district court to
the extent that it dismisses Southern Walk’s amended com-
plaint, but we vacate the judgment to the extent that the dis-
missal was with prejudice, and remand with instructions that
the case be dismissed without prejudice.4
III.
Having resolved Southern Walk’s appeal, we turn to Open-
Band’s appeal challenging the district court’s refusal to grant
it attorneys’ fees. Typically, we review a grant or denial of a
motion for attorneys’ fees for abuse of discretion. See John-
son v. City of Aiken, 278 F.3d 333, 336 (4th Cir. 2002). How-
ever, because OpenBand moved for attorneys’ fees pursuant
to a fee-shifting provision in the TSA, and the district court
denied the motion on contract interpretation grounds, we
review the district court’s denial de novo. See Johannssen v.
Dist. No. 1-Pac. Coast Dist., MEBA Pension Plan, 292 F.3d
159, 178 (4th Cir. 2002), abrogated on other grounds by
Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, 128 (2008).
4
We note that the district court made alternative holdings on the merits
assertedly supporting its dismissal with prejudice. Given the court’s lack
of jurisdiction over the case, any alternative holdings based on consider-
ation of and conclusions on the merits were beyond the power of the dis-
trict court. Steel Co., 523 U.S. at 94.
SOUTHERN WALK v. OPENBAND 15
The TSA provides that "[t]he prevailing Party in any litiga-
tion, proceeding or action commenced in connection with
enforcing any of the provisions of this Agreement shall
recover any and all legal expenses incurred in pursuing such
litigation, proceeding or action from the non-prevailing
Party."
OpenBand maintains that it is a "prevailing Party" because
that term "generally means a party that prevails on the merits
of the underlying action," even if prevailing on the merits
only maintains the status quo. Southern Walk argues that for
a party to be "prevailing" requires a material alteration in the
legal relationship between the parties—something that cannot
occur after a dismissal for lack of jurisdiction.5 We need not
go so far as Southern Walk suggests. For even accepting
OpenBand’s definition arguendo, OpenBand is not a "prevail-
ing party" in this case because a dismissal for lack of standing
does not constitute a determination on the merits. White Tail
Park, 413 F.3d at 460.
We accordingly affirm the district court’s denial of Open-
Band’s motion for attorneys’ fees.
5
Southern Walk borrows its definition from the Supreme Court’s con-
struction of statutes allowing fee-shifting by a "prevailing party." E.g., 42
U.S.C. § 1988(b). For a party to be "prevailing" under those statutes, the
Supreme Court requires that a "judgment[ ] on the merits [or a] court-
ordered consent decree[ ] create [a] ‘material alteration of the legal rela-
tionship of the parties.’" Buckhannon Bd. & Care Home, Inc. v. W. Va.
Dep’t of Health & Human Res., 532 U.S. 598, 604 (2001) (quoting Tex.
State Teachers Ass’n v. Garland Indep. Sch. Dist., 489 U.S. 782, 792-93
(1989)). Our sister circuits have divided on whether a defendant that suc-
cessfully moves for dismissal for lack of subject matter jurisdiction can
ever be a prevailing party under this definition. Compare Elwood v. Dres-
cher, 456 F.3d 943, 948 (9th Cir. 2006) (not a prevailing party), with Citi-
zens for a Better Env’t v. Steel Co., 230 F.3d 923, 930 (7th Cir. 2000) (a
prevailing party where dismissal "forecloses the plaintiff’s claim"). In this
case, we offer no opinion on the proper interpretation of "prevailing party"
in those statutory contexts. See Wendt v. Leonard, 431 F.3d 410, 414 (4th
Cir. 2005) (similarly refusing to weigh in on this division among our sister
circuits).
16 SOUTHERN WALK v. OPENBAND
IV.
In sum, we affirm that portion of the district court’s judg-
ment dismissing Southern Walk’s complaint, but vacate that
judgment to the extent that the dismissal was with prejudice,
and remand to that court for dismissal of the case without
prejudice. Further, we affirm the district court’s judgment
denying attorneys’ fees to OpenBand. We note that nothing in
our decision today forecloses Southern Walk, if the facts per-
mit, from filing a new action with the same underlying claim
in the district court, and properly pleading standing. Semtek
Int’l Inc., 531 U.S. at 505 ("The primary meaning of ‘dis-
missal without prejudice,’ . . . is dismissal without barring the
plaintiff from returning later, to the same court, with the same
underlying claim."); see also Lansdowne on the Potomac
Homeowners Ass’n, slip op. at 9-14 (4th Cir. Apr. 5, 2013).
No. 12-1331 AFFIRMED IN PART AND
VACATED AND REMANDED IN PART
No. 12-2083 AFFIRMED