2.3 Mechanics of Establishing or Challenging Jurisdiction

• Library: Federal Civil Practice in Virginia (Virginia CLE) (2023 Ed.)

2.3 MECHANICS OF ESTABLISHING OR CHALLENGING JURISDICTION

2.301 Burden of Proof.

The burden of proving federal court jurisdiction lies with the party asserting jurisdiction. ¹⁰⁶ Thus, in cases filed in federal court, the plaintiff bears the burden of establishing the court's jurisdiction. ¹⁰⁷

A defendant removing a case from state court to federal court has the burden of establishing all of the matters required by the removal statutes, in its notice of removal. ¹⁰⁸

2.302 Basis for Jurisdiction Must Appear on Face of Complaint.

Under the "well pleaded complaint rule," the basis for federal jurisdiction over a case must appear from the face of the complaint. ¹⁰⁹ Federal jurisdiction cannot be based upon an anticipated or actual counterclaim. ¹¹⁰

A plaintiff cannot, however, avoid federal court simply by omitting to plead a necessary federal question in the complaint. The "artful pleading" exception to the "well-pleaded complaint rule" prevents such artificial efforts to circumvent federal jurisdiction. ¹¹¹

The essential elements of diversity jurisdiction must be alleged in the complaint or be evident from the record. ¹¹²

2.303 Court Decides Whether It Has Jurisdiction; Discovery; Hearing Evidence.

A federal court has jurisdiction to decide whether it has jurisdiction over the case. ¹¹³

A party may challenge the district court's jurisdiction under Fed. R. Civ. P. 12(b)(1) in one of two ways: facially or factually. ¹¹⁴ A facial challenge is one that contends that the complaint fails to allege facts upon which subject matter jurisdiction can be based. ¹¹⁵ The analysis proceeds as under Rule 12(b)(6) wherein the facts alleged in the complaint are taken as true and the jurisdictional challenge must be denied if the complaint alleges sufficient facts to invoke subject matter jurisdiction. ¹¹⁶

A factual challenge attacks the veracity of the jurisdictional allegations made in the complaint in which the pleadings are regarded as mere evidence. ¹¹⁷

A recent decision by a court in the Eastern District of Virginia, Kuntze v. Josh Enterprises, ¹¹⁸ closely examined the standard of review in a subject matter jurisdiction challenge. The court observed that the Fourth Circuit has indicated that "how district courts should evaluate evidence presented in a factual challenge . . . depends on whether the jurisdictional facts are intertwined with the merits facts." ¹¹⁹ It concluded that, where the jurisdictional facts are not intertwined with the merits, the trial court is permitted to weigh evidence and resolve factual disputes to determine its jurisdiction. The parties may present affidavits, depositions, or live testimony. When jurisdictional facts and merits facts are intertwined, however, the trial court may not resolve factual disputes and should either deny the Rule 12(b)(1) motion without prejudice and proceed with discovery, or treat the motion as one for summary judgment and take it under advisement until the parties have conducted discovery adequate to address the relevant factual disputes. ¹²⁰

Some points to be kept in mind:

A. The plaintiff always bears the burden of proving the existence of subject matter jurisdiction. ¹²¹ If jurisdiction is challenged based on the underlying facts, the court may consider evidence outside the pleadings without converting the motion into one for summary judgment. ¹²² The court should only dismiss under F ed. R. Civ. P. 12(b)(1) "if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law." ¹²³

B. If a defendant claims that the factual allegations regarding jurisdiction are false, the court may hold an evidentiary hearing to establish the jurisdictional facts. ¹²⁴ If the factual challenge to jurisdiction involves "the merits of the dispute," however, the court should "find that jurisdiction exists and deal with the objection as a direct attack on the merits of the plaintiff's case." ¹²⁵

2.304 Timing of Challenges.

Subject matter jurisdiction cannot be waived, so it can be raised at any time. ¹²⁶ Courts can also raise the issue of subject matter jurisdiction sua sponte because federal courts are courts of limited jurisdiction. ¹²⁷ Hence, after removal, where a jurisdictional defect appeared in the pleadings, one federal court has required a defendant to show cause why the case should not be remanded to state court. ¹²⁸

A challenge to personal jurisdiction (like a challenge to venue or service of process) can be waived, according to Fed. R. Civ. P. 12(h), if it is not made in compliance with Rule 12. Typically, that means the issue has to be raised in the party's Rule 12 motion or in the party's responsive pleading. ¹²⁹

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Notes:

^[106] See Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994).

^[107] E.g., Fairfax Countywide Citizens Ass'n v. County of Fairfax, 571 F.2d 1299, 1303 (4th Cir. 1978); Womack v. Department of Med. Assistance Servs., No. 4:02CV00047, 2003 WL 23592418, at *1 (W.D. Va. Jan. 14, 2003), aff'd sub nom. Womack v. Commissioner of Dep't of Med....