Case 1:12-cv JD Document 201 Filed 06/25/14 Page 1 of 5 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPHIRE

Similar documents
Case 1:12-cv JD Document 202 Filed 07/02/14 Page 1 of 5 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPHIRE

Case 1:12-cv JD Document Filed 06/25/14 Page 1 of 19 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPHIRE

Case 2:14-cv SPL Document 25 Filed 09/11/14 Page 1 of 16 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Case 1:12-cv SM Document 100 Filed 01/17/14 Page 1 of 10

MOBar CLE Residential Landlord/Tenant Law Part 2 Page 1

MOBar CLE Residential Landlord/Tenant Law Part 2 Page 1 B--1

IN THE UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA ERNEST TAYLOR CIVIL ACTION THE CITY OF BATON ROUGE, ET AL. NO.

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

Case 1:05-cv GMS Document 38 Filed 04/21/2006 Page 1 of 8

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT. No

Case 8:04-cv SCB-TBM Document 32 Filed 10/07/2005 Page 1 of 6

Case 1:12-cv JD Document 152 Filed 04/11/14 Page 1 of 9 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Case 3:17-cv DPJ-FKB Document 97 Filed 03/15/18 Page 1 of 11

IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF KANSAS. IN RE: ) ) Case No MISSION GROUP KANSAS, INC. ) ) Chapter 7 Debtor.

Case 1:12-cv JD Document 11 Filed 08/03/12 Page 1 of 7 UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA ORLANDO DIVISION

Case 2:13-cv BJR Document 12 Filed 06/21/13 Page 1 of 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

IN THE CIRCUIT COURT OF THE FIFTH JUDICIAL CIRCUIT IN AND FOR MARION COUNTY, FLORIDA. vs. Case No: ORDER ESTABLISHING MOTION PRACTICE PROCEDURE

2:15-cv CSB-EIL # 297 Page 1 of 6 IN THE UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF ILLINOIS URBANA DIVISION

BRADFORD COUNTY LOCAL CIVIL RULES. 1. Upon the filing of a divorce or custody action pursuant to the Pennsylvania Rules of

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF IOWA WESTERN DIVISION

SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN DIEGO, CENTRAL DIVISION CASE NO. ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

IN THE CIRCUIT COURT OF JACKSON COUNTY, MISSOURI AT KANSAS CITY CIVIL CASE MANAGEMENT SCHEDULING ORDER

[NOT YET SCHEDULED FOR ORAL ARGUMENT] IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

Case CAC/2:12-cv Document 11 Filed 06/07/13 Page 1 of 8 BEFORE THE UNITED STATES JUDICIAL PANEL ON MULTIDISTRICT LITIGATION ) ) ) ) ) ) ) ) )

Case 1:15-cv JSR Document 144 Filed 08/26/16 Page 1 of 8

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF FLORIDA TALLAHASSEE DIVISION

Case 1:15-cv MJW Document 89 Filed 04/11/16 USDC Colorado Page 1 of 9 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS COUNTY DEPARTMENT LAW DIVISION JUDGE RAYMOND W. MITCHELL STANDING ORDER.

Interlocal Agreement for Fire Protection Services

Case 4:15-cv DPM Document 25 Filed 05/06/16 Page 1 of 12

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA WESTERN DIVISION. Case No. 5:07-CV-231

Case: 2:12-cv PCE-NMK Doc #: 89 Filed: 06/11/14 Page: 1 of 8 PAGEID #: 1858

Case 1:16-cv MAC Document 10 Filed 06/02/16 Page 1 of 12 PageID #: 35

No UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO. No. CIV JB/KK MEMORANDUM OPINION AND ORDER OF DISMISSAL

UNOPPOSED MOTION FOR STAY PENDING SUPREME COURT PROCEEDINGS

Lawrence Walker v. Comm Social Security

IN THE UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT

ADAMS COUNTY COURT OF COMMON PLEAS RULES OF CIVIL PROCEDURE BUSINESS OF COURTS

IN THE COMMON PLEAS COURT OF MONTGOMERY COUNTY, OHIO CIVIL DIVISION. DAVID ESRATI : Case No CV Plaintiff, : Judge Richard Skelton

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MISSOURI CENTRAL DIVISION

Case 1:12-cv JD Document 169 Filed 05/07/14 Page 1 of 11 UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Case 3:15-cv FAB-MEL Document 29 Filed 09/28/15 Page 1 of 13 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT

IN THE CIRCUIT COURT OF JACKSON COUNTY, MISSOURI AT KANSAS CITY

Case: HJB Doc #: 3116 Filed: 02/16/16 Desc: Main Document Page 1 of 4

Case 2:10-cv RLH -PAL Document 29 Filed 12/02/10 Page 1 of 8

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF FLORIDA PENSACOLA DIVISION

LEXSEE. JAMES R. HAZELWOOD, PLAINTIFF v. PATTI WEBB et al., DEFENDANTS CIVIL ACTION NO. 4:06CV-P107-M

APPEAL A FORCIBLE DETAINER JUDGMENT

Case: Document: 6 Filed: 11/03/2016 Pages: 6 UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT. No ) ) ) ) ) ) ) ) ) )

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA Harrisburg Division --ELECTRONICALLY FILED--

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY CENTRAL DIVISION FRANKFORT ) ) ) ) ) ) ) ) ) ) *** *** *** ***

LOCAL RULES OF CIVIL PROCEDURE FOR THE SUPERIOR COURTS OF JUDICIAL DISTRICT 16B

Case 1:04-cv EGS Document 9 Filed 01/21/2005 Page 1 of 14

NOTICE OF MOTION FOR RECONSIDERATION. PLEASE TAKE NOTICE that Plaintiff, Martha J. Toy, by her attorney, William B.

Case 2:16-cv JAD-VCF Document 29 Filed 06/28/17 Page 1 of 8 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA *** ORDER

Case 1:13-cv MSK-MJW Document 3 Filed 05/17/13 USDC Colorado Page 1 of 5 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Case 5:05-cv RHB Document 108 Filed 09/21/2006 Page 1 of 10

Case 1:15-cv SS Document 10 Filed 01/29/16 Page 1 of 6 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS AUSTIN DIVISION

Case 3:10-cv HLH Document 19 Filed 09/15/10 Page 1 of 5

PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE D/B/A EVERSOURCE ENERGY

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

Case 1:10-cv GBL -TRJ Document 54 Filed 11/02/11 Page 1 of 10 PageID# 476

Case 1:04-cv GBD-RLE Document 953 Filed 08/10/15 Page 1 of 4

EDUCATIONAL OBJECTIVES

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA MEMORANDUM OPINION

Case 1:16-cv RB-WPL Document 1 Filed 12/27/16 Page 1 of 5 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

Case 1:17-cv Document 1 Filed 01/25/17 Page 1 of 11. : : Petitioner, : : Respondent.

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION ) ) ) ) ) ) ) ) ) )

Case 1:16-cv CMA Document 296 Entered on FLSD Docket 05/09/2017 Page 1 of 6 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA - Alexandria Division -

LOCAL COURT RULES JUDICIAL DISTRICT 17A - ROCKINGHAM COUNTY. General Court of Justice-Superior Court Division. State of North Carolina

UNITED STATES OF AMERICA FEDERAL TRADE COMMISSION. ) PUBLIC In the Matter of ) ) INTEL CORPORATION, ) Docket No ) Respondent.

LOCAL RULES SUPERIOR COURT of CALIFORNIA, COUNTY of ORANGE DIVISION 3 CIVIL RULES

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

No IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT. CLEAN AIR COUNCIL, et al.,

In the United States Court of Appeals for the Third Circuit

MOTION TO MODIFY SCHEDULING ORDER REGARDING DEPOSITIONS AND DISCLOSURE OF EXPERTS' MATERIAL S

In the Supreme Court of the United States

COMMERCIAL CALENDAR N (Effective November 17, 2010)

No UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO CIV RYSKAMP/VITUNAC

TY CLEVENGER 21 Bennett Avenue #62 New York, New York 10033

No IN THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT. SIERRA CLUB; and VIRGINIA WILDERNESS COMMITTEE,

Case 1:17-cr JRH-BKE Document 275 Filed 04/27/18 Page 1 of 5 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF GEORGIA AUGUSTA DIVISION

STATEMENT OF THE CASE. Appellee, BAC HOME LOANS SERVICING, L.P., f/k/a COUNTRYWIDE

STATE OF LOUISIANA DR. BARBARA FERGUSON AND CHARLES J. HATFIELD VS. LOUISIANA DEPARTMENT OF EDUCATION

UNITED STATES DISTRICT COURT. District of Oregon. Plaintiff(s), vs. Case No: 6:07-CV-6149-HO. Defendant(s). Civil Case Assignment Order

Utah Court Rules on Trial Motions Francis J. Carney

UNIFORM STANDING ORDER FOR ALL COMMERCIAL CALENDARS

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI WESTERN DIVISION

ORAL ARGUMENT HELD ON MARCH 31, Case No UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT ) ) ) ) ) ) ) ) ) ) ) REPLY IN SUPPORT OF MOTION TO TRANSFER AND HOLD CASES IN ABEYANCE

Transcription:

Case 1:12-cv-00130-JD Document 201 Filed 06/25/14 Page 1 of 5 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPHIRE Town of Wolfeboro, Plaintiff, Case No. 12-cv-130-JD v. Wright-Pierce Defendant. MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION NOW COMES Wright-Pierce, by and through its attorneys, Sheehan Phinney Bass + Green PA, pursuant to Federal Rule of Civil Procedure 12(h(3, and submits the following motion to dismiss for lack of subject matter jurisdiction. 1. Wright-Pierce moves to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(h(3, which commands: [i]f the court determines at any time that it lacks subjectmatter jurisdiction, the court must dismiss the action. Diversity jurisdiction, which was the sole basis on which Plaintiff invoked subject matter jurisdiction, must be determined on the facts as they exist at the start of a case. There is no dispute that at one time Topsham, Maine was Wright- Pierce s principal place of business. The evidence is equally clear, however, that by April 2012, Wright-Pierce s nerve center had shifted to Portsmouth, New Hampshire. See Hertz v. Friend, 559 U.S. 77 (2010. Review of the accompanying affidavits makes that fact unmistakably clear. Application of the Hertz nerve center test shows that Wright-Pierce was a citizen of New Hampshire in April 2012. Accordingly, diversity jurisdiction did not exist, and this case must be dismissed.

Case 1:12-cv-00130-JD Document 201 Filed 06/25/14 Page 2 of 5 2. The fact that Wright-Pierce admitted the facts supporting Plaintiff s claim of diversity jurisdiction in its answer does not rescue Wolfeboro s case from dismissal. Federal courts are courts of limited jurisdiction. This principle is hard and fast and unyielding. See Díaz- Rodríguez v. Pep Boys Corp., 410 F.3d 56, 62 (1st Cir. 2005 ( [F]ederal courts are courts of limited jurisdiction. Consequently, such courts must monitor their jurisdictional boundaries vigilantly.. A court s jurisdiction cannot be expanded by the parties litigation conduct. The parties may not confer subject matter jurisdiction on the court through stipulation, inaction, negligence, acquiescence or active contrivance. In short, diversity jurisdiction either exists or it does not. The actual facts showing the actual location of the corporation s nerve center, not an answer to a complaint, determine the outcome, with any doubts resolved in favor of denying jurisdiction. 3. Dismissal may seem a harsh outcome, but the Supreme Court has made the policy judgment. Subject matter jurisdiction can never be waived or forfeited. The lack of subject matter jurisdiction can be raised at any stage of a case, including following a jury verdict or even by the Circuit Court or the Supreme Court sua sponte. The Court made this choice to preserve and protect the limited jurisdiction of federal courts. In so doing, the Supreme Court has commanded that protection of the limited jurisdiction of federal courts trumps all other considerations. The Court has not departed from this principle since it was first articulated in 1884. Mansfield, C. & L.M. Ry. Co. v. Swan, 111 U.S. 379 (1884. 4. The application of this unyielding principle which leaves a court with no other choice but to dismiss often produces seemingly unfair results. For example, as in this case, a winning plaintiff is forced to start again in a different court, while a losing defendant gets a second chance, all at taxpayer expense and with the waste of judicial resources. But this is the 2

Case 1:12-cv-00130-JD Document 201 Filed 06/25/14 Page 3 of 5 policy judgment made by our Supreme Court. This principle would apply with equal force had Wright-Pierce prevailed and it was Wolfeboro invoking Rule 12(h(3. 5. In practice, the realization that there is no subject matter jurisdiction does not always emerge at a convenient point. Sometimes the issue surfaces after years of litigation; or after discovery misconduct resulting in the issuance of a default; or, as here, after a lengthy trial and a jury verdict. As a consequence, District Courts, Circuit Courts, and even the Supreme Court are not infrequently confronted with the vexing and no doubt distasteful situation presented here. But the timing of the discovery does not affect the outcome required. 6. When confronted with the plaintiff s post-trial subject matter challenge following a defendant s jury verdict, Judge Hornby from the District of Maine felt compelled to quote Dickens Mr. Bumble: If the law supposes that, [it] is a ass a idiot. Bissell v. Breakers By-The-Sea, 7 F. Supp. 2d 60, 61, (D. Me. 1998 (ellipsis in original. Judge Hornby followed up this quote with a thorough review of competing policy considerations. He candidly expressed both his disagreement with the policy and his dissatisfaction with the result, but in the end, conceded that dismissal was required. There was no choice to be made. Judge Hornby lacked the power to decide the case, and lacking that power, was forced to dismiss it. This case is the same. 7. If in 2012 this Court had been presented with the facts now brought to the Court s attention, the Court would not have hesitated to dismiss this case. The Court would have concluded, as Wright-Pierce argues now, that Portsmouth, New Hampshire is Wright-Pierce s nerve center and, therefore, diversity jurisdiction does not exist. The passage of over two years, the ensuing trial, and the associated expenditure of time, money, and resources do not alter this result. While there is no denying that it would have been far simpler had the lack of subject matter jurisdiction been called to the Court s attention at the outset of this case, it was not. But 3

Case 1:12-cv-00130-JD Document 201 Filed 06/25/14 Page 4 of 5 there is no waiver. There is no balancing. Subject matter jurisdiction either exists or it does not, and here it does not. Dismissal is required. 8. While this Motion and the outcome it compels are no doubt greeted with frustration and distaste, this Motion is not based on some trivial technicality, nor is it a cheap legal trick. Rather, this Motion seeks to accomplish what the decisions of our Supreme Court have consistently required; namely, that the limited jurisdiction of the federal courts must be preserved and protected, at all costs. They must be even in the face of the waste of substantial judicial resources and taxpayer money. This may be an unsatisfactory outcome; it may even be bad policy, but it is what the law requires. 9. For the reasons stated herein and in the accompanying affidavits and Memorandum of Law (submitted pursuant to Local Rule 7.1(a(2, Wright-Pierce requests that the Court grant this Motion and dismiss the action. 10. Pursuant to Local Rule 7.1(c, Wright-Pierce advises that because this is a dispositive motion its counsel did not seek concurrence. However, its counsel did notify opposing counsel that this Motion was being filed. 11. Pursuant to Local Rule 7.1(d, Wright-Pierce requests oral argument on this Motion both because of the extraordinary stakes involved as well as the unusual posture of this dispute. WHEREFORE, Wright-Pierce prays that this Court: A. Grant this Motion and dismiss this action for lack of subject matter jurisdiction; and, B. Grant Wright-Pierce such other and further relief as may be just and equitable. 4

Case 1:12-cv-00130-JD Document 201 Filed 06/25/14 Page 5 of 5 Respectfully submitted, WRIGHT-PIERCE By Its Attorneys SHEEHAN PHINNEY BASS + GREEN, PA Dated: June 25, 2014 By:_/s/ Peter S. Cowan Peter S. Cowan (#182 John-Mark Turner (#15610 1000 Elm Street, P.O. Box 3701 Manchester, NH 03105-3701 (603 627-8193 CERTIFICATION I hereby certify that on June 25, 2014, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system, which sent notification of such filing to all counsel of record.. _/s/ Peter S. Cowan Peter S. Cowan 5