PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

SOCIETY OF SEPARATIONISTS, a non-profit Maryland corporation; G. GASTER; R. KELSEY,

Plaintiffs - Appellants,

v.

PLEASANT GROVE CITY, a municipal corporation; JIM DANKLEF, Mayor, in his official capacity; MICHAEL DANIELS, City Council Member, in his official capacity; JEFF WILSON, City Council Member, in his official capacity; CINDY BOYD, City Council Member, in her official capacity; DAROLD MCDADE, City Council Member, in his official capacity; MARK ATWOOD, City Council Member, in his official capacity; FRANK MILLS, City Council Member, in his official capacity,

Defendants - Appellees.

-------------------------

AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE,

Amicus Curiae.	No. 04-4136

Appeal from the United States District Court

for the District of Utah

(D.C. No. 03-CV-839-BSJ)

Brian M. Barnard (James L. Harris with him on the briefs), Utah Legal Clinic, Salt Lake City, Utah for the Plaintiffs-Appellants.

Francis J. Manion, American Center for Law & Justice (Edward L. White III, Thomas More Law Center, Ann Arbor, Michigan with him on the brief), New Hope, Kentucky for the Defendants-Appellees.

Ayesha Khan and Richard B. Katskee, Washington, D.C., filed an amicus curiae brief for Americans United for Separation of Church and State.

Before TACHA, Chief Judge, LUCERO, and MCCONNELL, Circuit Judges.

LUCERO, Circuit Judge.

We informally abated this case – involving the continued placement of a Ten Commandments monument on a public park in Pleasant Grove, Utah – while awaiting the Supreme Court's decisions in Van Orden v. Perry, 125 S.Ct. 2854 (2005) and McCreary County v. American Civil Liberties Union of Ky., 125 S.Ct. 2722 (2005). The Court has now decided these cases, and we reconsider the posture of the present case under the fact-intensive analysis prescribed by the Court's recent decisions.

In the proceedings below, plaintiffs and defendants filed cross-motions for Judgment on the Pleadings under Fed. R. Civ. P. 12(c).1 The trial court determined that the plaintiffs' pleadings failed to state a claim upon which relief could be granted, and granted defendants' motion for judgment on the pleadings. "A decision by the district court granting a defense motion for judgment on the pleadings is reviewed de novo, using the same standard of review applicable to a Rule 12(b)(6) motion." Aspenwood Inv. Co. v. Martinez, 355 F.3d 1256, 1259 (10th Cir. 2004). "As with a ruling under Fed. R. Civ. P. 12(b)(6), we uphold a dismissal only when it appears that the plaintiff can prove no set of facts in support of the claims that would entitle the plaintiff to relief." Deck v. Engineered Laminates, 349 F.3d 1253, 1256 (10th Cir. 2003) (quotations omitted). Given the myriad factual considerations dictated by the Court in Van Orden and McCreary, and the undeveloped record before us, we are unable to determine whether such facts may be developed by the parties as may allow them to proceed. We therefore REVERSE the lower court's grant of judgment on the pleadings and REMAND for further proceedings.

The district court's grant of defendants' Motion to Substitute Parties is AFFIRMED.2 We reserved ruling on Society of Separationists' Motions to Strike Pleasant Grove's March 14, 2005 and July 15, 2005 letters to this court. Because the letters, supporting plaintiffs' contentions from oral argument, do not comply with the limitations set forth in Fed. R. App. P. 28(j),3 we GRANT the motions.