Legal Memorandum: Challenging Subject Matter Jurisdiction in MH

Issue: What is the standard of review for challenging subject matter jurisdiction in an admiralty manner in the Marshall Islands?

Under MIRCP 12(b)(1) and 12(b)(2), a defendant is entitled to bring a motion challenging the court’s subject matter jurisdiction and personal jurisdiction over the defendant.  A defendant’s 12(b)(1) motion may be a facial attack or a factual attack on a plaintiff’s complaint.  White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000).  With a facial attack, a defendant challenges the allegations in a plaintiff’s complaint, claiming that, as pleaded, the plaintiff has failed to sufficiently demonstrate subject matter jurisdiction.  Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1038 (9th Cir. 2004).  Under a facial attack, the court is compelled to accept the plaintiff’s allegations as true, dismissing the complaint only if subject matter jurisdiction is lacking on the fact of the complaint.  Id.  A factual attack, on the other hand, arises when a defendant introduces additional evidence challenging the plaintiff’s allegation of subject matter jurisdiction.  When such evidence is offered, the court may entertain the evidence without converting the motion to one for summary judgment, but must afford the plaintiff an opportunity to present affidavits and other evidence establishing subject matter jurisdiction.  Id. at 1039; Shell Offshore Inc. v. Greenpeace, Inc., No. 3:12-cv-00042-SLG (D. Alaska May 29, 2012) (quoting McCarthy v. U.S., 850 F.2d 558, 560 (1987)).  When weighing the evidence on a factual attack, “[t]he court need not presume the truthfulness of the plaintiff’s allegations.”  Safe Air for Everyone v. Meyer, 373 F.3d at 1038.  A Rule 12(b)(2) […]