Certain Procedural Issues Common to Scope Matters

• Author: Christopher L. Sagers
• Pages: 363-367

363

CHAPTER XVII

CERTAIN PROCEDURAL ISSUES COMMON TO

SCOPE MATTERS

Two procedural issues have recurred in the caselaw concerning the

scope of antitrust. First, courts now hold that particular limits on scope

ordinarily go only to the merits, rather than to t he court’s subject matter

jurisdiction. Second, courts hold that trial court rulings on scope are

almost never subject to interlocutory appellate review.

A. Statutory Scope Limitations Are Presumed Not to Be

Jurisdictional

1.

The Significance of the Distinction

The distinction between a jurisdictional limit and a limit going to the

merits of plaintiff’s claim is significant in two ways. First, it affects the

treatment of disputed facts. Generally, where a defendant seeks dismissal

on the merits rather than subject matter jurisdiction, the plaintiff enjoys

the benefit of a larger doubt as to any facts in dispute. So, where

defendant challenges facts pled to support the court’s subject matter

jurisdiction, the court may take evidence and require plaintiff to prove by

preponderance that jurisdiction is proper.

1

Where facts merely going to

the merits are challenged prior to trial, appropriate inferences are drawn

in favor of the non-moving party.

2

Second, the distinction affects the waiveability of a scope argument.

Defenses going to the court’s jurisdiction are never waived, and can be

raised at any time during trial or on appeal, either by a party or the court

sua sponte. But if a scope issue goes only to the merits, a motion to

dismiss on that basis can be made only as late as trial.

3

1

. 13 CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE & PROCEDURE §

3522 & n.8 (2012).

2

. See Minn-Chem, Inc. v. Agrium, Inc., 683 F.3d 845, 852-53 (7 th Cir.

2012) (en banc) (noting this distinction).

3

. Fed. R. Civ. P. 12(h)(2).