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Tuesday, October 02, 2018

Jurisdictionality confusion lives

I have not been writing or reading about jurisdictionality of late, so I was surprised to see that courts seem to be making the same mistakes. In this case from the Third Circuit, the district court had held that so-called statutory standing of a non-U.S. plaintiff under RICO was jurisdictional; the court of appeals affirmed, although shifting the framing to merits rather than jurisdiction. It said:

Because this case does not involve Article III standing, but rather presents an issue of statutory standing, subject matter jurisdiction is not implicated, and the parties incorrectly relied on Rule 12(b)(1) . Our precedent makes clear that "[c]ivil RICO standing is usually viewed as a 12(b)(6) question of stating an actionable claim, rather than as a 12(b)(1) question of subject matter jurisdiction." [*5] 38 Moreover, given that Rule 12(b)(6) provides a plaintiff with "significantly more protections,"39 and because we may affirm on any ground supported by the record and "there is no prejudice to appellants in our reviewing the district court's dismissal as if it were grounded on Rule 12(b)(6) ,"40 we will review this matter under Rule 12(b)(6) . Accordingly, we "consider only the allegations contained in the complaint, exhibits attached to the complaint and matters of public record."41 In evaluating whether the complaint adequately pleads the elements of standing, we accept as true all material allegations set forth in the complaint and construe those facts in favor of Plaintiffs, the nonmoving party.42

I would have thought that Morrison, which held that extraterritoriality is merits, and Lexmark, which held that statutory zone of interest is merits, would have made this obvious. But Circuit precedent distinguishes Article III standing from statutory standing and lets the merits/jurisdictionality distinction turn on that. So whether standing is Article III or statutory often becomes a point of dispute between the parties and in the case. All of which reveals why Fletcher continues to be right and the best understanding is that is all about the cause of action and who can sue whom for what--and thus should be about the merits.

Posted by Howard Wasserman on October 2, 2018 at 10:29 AM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink

Comments

By the way , links to the rules , lead to Bloomberg , so here he who wants :

https://www.law.cornell.edu/rules/frcp/rule_12

Posted by: El roam | Oct 2, 2018 2:38:45 PM

Interesting . But , the point is , that the supreme court as cited by the third circuit , held that , I quote the third circuit :

Nevertheless , the court concluded that RICO can reach extraterritorial conduct .

And :

The court explained that " nothing in U.S.C 1964 (c) does not allow recovery for injuries suffered in foreign territories .

And :

The court explained that " nothing in 1964(c) provides a clear indication that Congress intended to create a private right to action for injuries suffered outside of the United states . Thus , although RICO creates a cause of action misconduct committed abroad Section 1964 (c) requires a " domestic injury ".

End of quotation :

So , the standing issue , is inherently mixed with the merits discussed . So , many , too many parameters are at stake or in action here . One wouldn't be able , prima facie , to conclude the standing , without reaching the merits in fact . And the court , has noted it indeed , all along the ruling , that Indeed , in that case , all nexus almost , had to do with China , and solely China , yet , he had standing indeed .

Thanks

Posted by: El roam | Oct 2, 2018 1:17:27 PM

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