Requirement for Consent

If the above elements are lacking, the court cannot proceed, even WITH the mutual consent or stipulation of the parties to 1 the suit. 2

Rule 12(h)(3) of the Federal Rules of Civil Procedure provides that ‘whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.’ A court lacking jurisdiction cannot render judgment but must dismiss the cause at any stage of the proceedings in which it becomes apparent that jurisdiction is lacking. Bradbury v. Dennis, 310 F.2d. 73 (10th Cir. 1962), cert. denied, 372 U.S. 928, 83 S.Ct. 874, 9 L.Ed.2d. 733 (1963). The party invoking the jurisdiction of the court has the duty to establish that federal jurisdiction does exist, Wilshire Oil Co. of Texas v. Riffe, 409 F.2d. 1277 (10th Cir. 1969), but, since the courts of the United States are courts of limited jurisdiction, there is a presumption against its existence. City of Lawton, Okla. v. Chapman, 257 F.2d. 601 (10th Cir. 1958). Thus, the party invoking the federal court's jurisdiction bears the burden of proof. Becker v. Angle, 165 F.2d. 140 (10th cir. If the parties do not raise the question of lack of jurisdiction, it is the duty of the federal court to determine the matter sua sponte. Atlas Life Insurance Co. v. W. I. Southern Inc., 306 U.S. 563, 59 S.Ct. 657, 83 L.Ed. 987 (1939); Continental Mining and Milling Co. v. Migliaccio, 16 F.R.D. 217 (D.C. Utah 1954). Therefore, lack of jurisdiction cannot be waived and jurisdiction cannot be conferred upon a federal court by consent, inaction or stipulation. California v. LaRue, 409 U.S. 109, 93 S.Ct. 390, 34 L.Ed.2d. 342 (1972); Natta v. Hogan, 392 F.2d. 686 (10th Cir. 1968); Reconstruction Finance Corp. v. Riverview State Bank, 217 F.2d. 455 (10th Cir. 1955). 1947).

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[Basso v. Utah Power and Light Company, 495 F.2d. 906 (1974)]

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To reiterate the elements needed to challenge jurisdiction, Federal Rule of Civil Procedure 12(b) provides the escape clause 20 from federal prosecution for the Citizens of the 50 states: 21

Federal Rules of Civil Procedure Rule 12. Defenses and Objections

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(b) "...the following defenses may at the option of the pleader be made by motion:

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(1) lack of jurisdiction over the subject matter.

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(2) lack of jurisdiction over the person.

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...A motion making any of these defenses shall be made before pleading ..

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(h)(3) "Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the

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subject matter, the court shall dismiss the action."

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Below is an example where the Ninth Circuit Court of Federal Appeals recognized a case where they had jurisdiction in 30 which consent of the parties was involved but jurisdiction was challenged: 31

“Pacemaker argues that in the federal system a party may not consent to jurisdiction, so that the parties cannot waive their rights under Article III. The maxim that parties may not consent to the jurisdiction of federal courts is not applicable here. The rule is irrelevant because it applies only where the parties attempt to confer upon an Article III court a subject matter jurisdiction that Congress or the Constitution forbid. See, e.g., Jackson v. Ashton, 33 U.S. (8 Peters), 148, 148-49, 8 L.Ed. 898 (1834); Mansfield, Coldwater & Lake Michigan Railway Co. v. Swan, 111 U.S. 379, 28 L.Ed. 462, 4 S.Ct. 510 (1884). The limited jurisdiction of the federal courts and the need to respect the boundaries of federalism underlie the rule. In the instant case, however, the subject matter, patents, is exclusively one of federal law. The Supreme Court has explicitly held that Congress may "confer upon federal courts jurisdiction conditioned upon a defendant's consent." Williams v. Austrian, 331 U.S. 642, 652, 91 L.Ed. 1718, 67 S.Ct. 1443 (1947); see Harris v. Avery Brundage Co., 305 U.S. 160, 83 L.Ed. 100, 59 S.Ct. 131 (1938). The litigant waiver in this case is similar to waiver of a defect in jurisdiction over the person, a waiver federal courts permit. Hoffman v. Blaski, 363 U.S. 335, 343, 4

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L.Ed.2d. 1254, 80 S.Ct. 1084 (1960). ”

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[Pacemaker Diagnostic Clinic of America Inc. v. Instromedix Inc., 725 F.2d. 537 (9th Cir. 02/16/1984)]

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The three cases cited above where defendants may consent involved: 46

1. Bankruptcy in which the case was brought in federal bankruptcy court RATHER than state court and the defendant 47 consented for the federal bankruptcy court instead of the state court to hear the case. None of the cases involved a 48 subject matter NOT expressly granted by Congressional statute to the specific court in question. 49 2. Patent enforcement which is exclusively granted to federal and not state courts. 50

Requirement for Consent

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Copyright Sovereignty Education and Defense Ministry, http://sedm.org Form 05.003, Rev. 7-23-2013

EXHIBIT:________