Josh,
Excellent work within extremely short time constraints.
Mike
________________________________
From: religionlaw-boun...@lists.ucla.edu <religionlaw-boun...@lists.ucla.edu>
on behalf of Volokh, Eugene <vol...@law.ucla.edu>
Sent: Tuesday, October 11, 2016 8:30:01 AM
To: Law & Religion issues for Law Academics (religionlaw@lists.ucla.edu)
Subject: Re: "California Court Issues TRO Against Kaporos Practices"
Those interested in the California Kaporos case might want to
check out Prof. Josh Blackman’s amicus brief,
https://www.scribd.com/document/327148724/Brief-Amicus-Curiae-of-Professor-Joshua-Blackman-in-United-Poultry-Concerns-v-Chabad-of-Irvine,
which argues that there’s no federal jurisdiction; here's the key passage:
First, plaintiffs wildly speculate that over the next decade, if
three-hundred chickens are killed annually at a cost of $25 each, the amount in
controversy will conveniently exceed $75,000. Complaint at ¶ 7. This argument
is laughable, and warrants sanctions under Rule 11. There is no principle of
federal jurisprudence under which a plaintiff can arbitrarily aggregate
speculative damages over the course of a decade to meet the minimum amount in
controversy. Even worse, because the plaintiffs were seeking a temporary
restraining order to prohibit the imminent Kapparot ritual in October 2016, it
is absurd to look out a decade. And why only ten years? Why not twenty, thirty,
or even a century? If this standard is applied, “any plaintiff filing suit
would be allowed to show injury.” Hernandez v. Specialized Loan Servicing, LLC,
No. 14-CV-9404-GW, 2015 U.S. Dist. LEXIS 8695, at *24-*25, (C.D. Cal. Jan. 22,
2015)(quoting Koller v. W. Bay Acquisitions, LLC, No. 11-CV-117-CRB, 2012 U.S.
Dist. LEXIS 49712, at *20-*21 (N.D. Cal. Apr. 9, 2012) (quoting Selby v. Bank
of Am., Inc., No. 09-CV-2079-BTM, 2010 U.S. Dist. LEXIS 139966, at *24 (S.D.
Cal. Oct. 27, 2010). There is no diversity jurisdiction.
Second, if plaintiffs speculate that if victorious, their
attorney’s fees may total more than $75,000. Complaint at ¶ 8. This claim is
specious, and flatly contrary to law. As the Court noted in its order to show
cause, “attorney’s fees do not satisfy the UCL standing requirement.” Nor do
they satisfy the matter in controversy requirement per 28 U.S.C. § 1332(a),
which requires the matter to exceed $75,000 “exclusive of interest and costs.”
If fees could be aggregated in a fantasy-victory, plaintiffs could always
artificially manufacture diversity jurisdiction.
Third, plaintiffs write that a “A California court would have
subject matter jurisdiction over the claims.” Complaint at ¶ 9. This is legally
irrelevant. California courts are courts of general jurisdiction. Federal
courts are courts of limited subject matter jurisdiction empowered to exercise
the judicial power of the United States only when authorized to do so by
Congress. (For a preview of future briefs-to-come if this case is not
dismissed, citations to state-court decisions are not sufficient to demonstrate
an Article III injury).
Fourth, plaintiffs write that “this case requires resolution of
a substantial question of federal law” because the defendants will “contend
their actions are protected by the Free Exercise clause of the First
Amendment.” Complaint at ¶ 10. This is an elemental error of federal pleading.
Under the Mottley rule, a well-pleaded complaint must raise the federal
questions on the face of the complaint–it is not enough to speculate about what
federal questions the defendant may raise in response. Louisville & Nashville
Railroad Company v. Mottley, 211 U.S. 149 (1908). Nothing in Grable & Sons
Metal Products, Inc. v. Darue Engineering & Mfg., (2005) 545 U.S. 308, which
defendants inexplicable cite, is to the contrary. Indeed, Grable does not even
reference the canonical Mottley rule, which has stood for nearly a century
without challenge.
Finally, the Court’s order to show cause seems to conflate
subject matter jurisdiction and injury for purpose of Article III. Regardless
of whether the plaintiffs have suffered an injury – again, a dubious
proposition under Article III even if is permissible in state courts – the
threshold inquiry is whether there is federal diversity or federal question
subject matter jurisdiction. Under no set of circumstances have plaintiffs
established that this court has jurisdiction to proceed.
Eugene
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