Legal Memorandum: Lack of Subject Matter Jurisdiction

Issue: When is a party entitled to raise the defense of lack of subject matter jurisdiction in federal court?

Area of Law: Litigation & Procedure
Keywords: Lack of subject matter jurisdiction; Defenses available
Jurisdiction: Federal
Cited Cases: None
Cited Statutes: Fed. R. Civ. P. 12(b)(1), R. 12(c), R. 12(d) R. 56, R. 56(c)(2)
Date: 07/01/2010

A motion to dismiss for lack of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1) can be untimely because it must be brought before a responsive pleading is filed, a challenge to subject matter jurisdiction is never untimely.  See Fed. R. Civ. P. 12(b)(3) (stating that “[i]f the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action”) (emphasis added).  In other words, the defense of lack of subject matter jurisdiction is never waived. 

Such a defense may be raised at any time, perhaps in a Rule 12(c) motion for judgment on the pleadings.  “After the pleadings are closed, but early enough not to delay trial, a party may move for judgment on the pleadings.”  Fed. R. Civ. P. 12(c).  If, however, matters outside the pleadings are presented to and are not excluded by the court on such a motion, the motion will be treated as one for summary judgment under Rule 56.  Id. at R. 12(d).  In that case, all parties must be given a reasonable opportunity to present all the material that is pertinent to the motion.  Id.  To the extent that genuine issues of material fact exist, a case cannot be disposed of on a motion for summary judgment.  See Fed. R. Civ. P. 56(c)(2). 


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