by Wilton H. Strickland

International litigation is growing as the world is shrinking, a phenomenon I explored in a previous article concerning service of process abroad. Much of this litigation occurs in federal courts. If you find yourself in one of these disputes, here is a quick and dirty tip for obtaining dismissal for lack of subject matter jurisdiction under Rule 12(b)(1).

If there are foreign citizens on both sides of the dispute, there must also be American citizens on both sides of the dispute as well. If not, the federal court lacks jurisdiction and must dismiss.

I used this argument a few times when practicing in Florida, citing Iraola & CIA, SA v. Kimberly-Clark Corp., 232 F.3d 854, 860 (11th Cir. 2000) (“It is a standard rule that federal courts do not have diversity jurisdiction over cases where there are foreign entities on both sides of the action, without the presence of citizens of a state on both sides.”). Iraola remains good law, and I have found no instance where a federal court in another Circuit took a different approach.

The beauty of an argument for lack of subject matter jurisdiction is that it cannot be waived, for it implicates constitutional concerns about the limited scope of federal jurisdiction. You can keep this arrow in your quiver and let it fly whenever you might need it. Happy hunting!