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Friday, October 23, 2020

Still getting jurisdictionality wrong

An unpublished Ninth Circuit opinion holds the district court lacked subject-matter jurisdiction over a copyright dispute because, as alleged, all infringing acts occurred outside the United States. But this should be a merits rather than jurisdictional issue. That the infringement took place outside the United States means U.S. copyright law was not violated because it does not "reach" or "prohibit" non-U.S. conduct. And the plaintiff's rights under U.S. copyright were not violated. All of which, Morrison v. Australia National Bank tells us, are merits questions to be resolved on 12(b)(6), not jurisdictional questions under 12(b)(1). It is amazing that courts continue to get this wrong. Especially since the court cited Twiqbal and looked only to the allegations in the complaint, which lacked any facts showing U.S.-based conduct.

Posted by Howard Wasserman on October 23, 2020 at 08:26 AM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink


Civ Pro is the only course that focuses at all on lower courts; Con Law and Crim Pro are all about SCOTUS. I was thinking this morning that there are just so many lower-court cases that things like this are bound to get lost in the shuffle.

Or we could blame the lawyers, who, equally confused, briefed it as jurisdiction. And this being unpublished and unargued, it probably went to the staff attorney, who followed the briefing. And the judges, not caring so much, sign off.

Posted by: Howard Wasserman | Oct 23, 2020 12:51:17 PM

Of the courses I teach (conlaw, crimpro, civpro) I find that it's in civpro where I most use the phrase ". . . now, the lower court was completely confused. . . ."

And I guess "it's all well and good given that it was an unpublished opinion," I can hear an apologist for precedent-stripping say. But it's a context wherein a lot of sloppiness or obviously results-oriented shenanigans take place. SCOTUS should actually ban the practice in the lower courts.

Posted by: Edward Cantu | Oct 23, 2020 12:32:33 PM

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