Tuesday, March 6, 2007

FNC before jurisdiction?

OK, this post is for lawyers only. And frankly, even most lawyers will find it boring. I'll try to get something of more general interest up later today.

Today the Supreme Court decided Sinochem Int'l Co v. Malaysia Int'l Shipping Co.. In this dispute between a Chinese company and a Malaysian company, the district court dismissed on grounds of forum non conveniens, even though it was uncertain whether it had personal jurisdiction over the defendant, and there was some issue about subject matter jurisdiction too. The burning question thus presented: can a district court dismiss on FNC grounds without first making sure it has jurisdiction?

The Court said yes. Nine years ago, in Steel Co. v. Citizens for Better Environment, the Court took quite a harsh view of the doctrine of "hypothetical jurisdiction." Sometimes, a court is faced with a case posing a difficult question of jurisdiction, but it's obvious that the plaintiff's ultimate claim on the merits is a complete loser. In such cases, the lower courts had gotten into the habit of saying, "why should we waste our time deciding the hard jurisdictional question when we can see that the plaintiff is just going to lose anyway?" and dismissing these cases on the merits. This sensible procedure saved everyone time and effort.

Well, the Supreme Court got all huffy and reminded those unruly inferior judges that jurisdiction is sacred. A court cannot act if it lacks jurisdiction, and so "hypothetical jurisdiction" is forbidden. A court must make sure it has jurisdiction before dismissing a case on the merits, no matter how easy the merits question and how hard the jurisdictional question.

This insistence on jurisdictional purity naturally led to much waste of time, and the Supreme Court has been backing away slowly ever since. In Ruhrgas AG v. Marathon Oil Co. (1989), the Court held that a court can dismiss a case for lack of personal jurisdiction without deciding whether it has subject-matter jurisdiction. Even though subject-matter jurisdiction is usually thought of as being "above" personal jurisdiction, the Court held that there is no jurisdictional hierarchy. So a personal jurisdiction dismissal is not a real "action" that a court must have subject-matter jurisdiction to take.

Now we go even further. Today's decision seems to say that all non-merits bases for dismissal are equal. Even without any kind of jurisdiction, a court can dump a case on forum non conveniens grounds. Presumably insufficient service of process would fall in the same category.

Probably there will now be years of wrangling about what constitutes a non-merits basis for dismissal. Lack of prosecution? Probably OK. How about laches, statute of limitations, or res judicata? I'm guessing those are merits bases, but who knows.

What a waste of time. If the plaintiff loses, the plaintiff loses. I can see the arguments against hypothetical jurisdiction (for example, courts can't act at all without jurisdiction; we have to guard the federal courts' limited jurisdiction; the plaintiff shouldn't be bound by a ruling on the merits if the court should have dismissed for want of jurisdiction; etc., etc.) but I find it difficult to get worked up about them. Expending time and resources in the name of doctrinal purity just seems wasteful. If the case has to be dismissed, let it be dismissed as soon as any reason for dismissal becomes apparent.

Amusingly, today's other case, Lance v. Coffman, turns on adherence to jurisdictional niceties!


Anonymous said...

Professor Siegel,

While on the subject, I have a quick question about FNC. Pursuant to ERIE, would a federal court sitting in diversity have to apply state FNC law or federal FNC law? For example, I believe that Texas does not recogonize FNC as a matter of state law. So if a federal district court in Texas is resolving a FNC motion, would it have to deny relief on that basis? If so, do you think that this presents forum-shopping concerns? Thanks - hopefully I didn't open the floodgates on those pesky FNC issues!

Jon Siegel said...

Amazingly enough, I don't think that's ever been resolved at the Supreme Court level. In Piper v. Reyno, the Court expressly left the matter unresolved, because it said that the FNC law would be the same either way (see n.13). For an appellate case discussing the issue, see Esfeld v. Costa Crociere, S.P.A., 289 F.3d 1300
(11th Cir. 2002).