Jurisdiction — Right to Jury Trial Where Jurisdictional and Merits Facts Are Intertwined

Sometimes jurisdictional facts overlap with merits facts. The right to a jury trial may therefore be implicated if merits facts are decided at on a pretrial motion addressed to jurisdiction. What is the standard for determining whether the right to a jury trial is being impinged? Resolving this as an issue of first impression for the Federal Circuit, DDB Techs., LLC v. MLB Advanced Media, LP, 2008 U.S. App. LEXIS 3086 (Fed. Cir. Feb. 13, 2008), follows the majority rule and holds that, where jurisdictional and merits facts are intertwined, it is “the degree of interwinement” that “determine[s] whether dismissal on jurisdictional grounds is appropriate, or whether resolution of the issues must await summary judgment proceedings or trial on the merits.” The authorities cited for this standard:

See, e.g., Torres-Negrn v. J&N Records, LLC, 504 F.3d 151, 163 (1st Cir. 2007) (whether jurisdictional and merits issues are "distinct and independent").... See also Autery v. United States, 424 F.3d 944, 956 (9th Cir. 2005) (whether "jurisdictional issue and substantive claims are so intertwined that resolution of the jurisdictional question is dependent on factual issues going to the merits") (citation omitted); Morrison v. Amway Corp., 323 F.3d 920, 926 (11th Cir. 2003) (whether same statute provides basis for both subject matter jurisdiction and substantive claim for relief); Sizova v. Nat'l Inst. of Standards & Tech., 282 F.3d 1320, 1324 (10th Cir. 2002) ("[T]he underlying issue is whether resolution of the jurisdictional question requires resolution of an aspect of the substantive claim.") (citation omitted); London v. Polishook, 189 F.3d 196, 198 (2d Cir. 1999) (whether "jurisdiction is so intertwined with the merits that its resolution depends on the resolution of the merits") (citation omitted); United States v. North Carolina, 180 F.3d 574, 581 (4th Cir. 1999) ("[W]hile the merits and jurisdictional questions are not identical, they are so closely related that the jurisdictional issue is not suited for resolution in the context of a motion to dismiss for lack of subject matter jurisdiction."); Osborn v. United States, 918 F.2d 724, 730 (8th Cir. 1990) (whether "the jurisdictional issue is 'so bound up with the merits that a full trial on the merits may be necessary to resolve the issue'") (citation omitted); Weidner Commc'ns, Inc. v. H.R.H. Prince Bandar Al Faisal, 859 F.2d 1302, 1310 n.11 (7th Cir. 1988) ("call[ing] to the attention of the district court" on remand a Ninth Circuit case holding that "where jurisdictional issues and substantive issues are so intertwined that the issue of jurisdiction is dependent on resolution of factual issues going to the merits," dismissal on jurisdictional grounds is inappropriate); Eubanks v. McCotter, 802 F.2d 790, 793 (5th Cir. 1986) (whether "the [same] statute provides both the basis of federal court subject matter jurisdiction and the cause of action") (citation omitted).

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