Filed January 17, 2014
Here, the Court “‘may not presume the truthfulness of the [petition's] factual allegations’” and instead “is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case.” Wyoming, 674 F.3d at 1231 (quoting Holt, 46 F.3d at 1003); Osborn, 918 F.2d at 729-30. Moreover, because Lujan’s holding that a plaintiff “cannot seek wholesale improvement of [a] program by court decree” was not predicated on the standard of review it applied to the plaintiffs’ claims, the fact that Lujan involved a summary judgment motion is a distinction without a difference.
Filed August 22, 2016
The only possible federal question is whether the Tribe has exceeded its lawful jurisdiction based upon the Montana test. Under Osborn v. United States, 918 F.2d 724 (8th Cir. 1990), Defendants challenge Plaintiff’s claim of jurisdiction both on the pleadings and, if Plaintiff were to survive that challenge, then on the facts. There are two “Montana exceptions”.
Filed November 16, 2010
This is because “[j]urisdictional issues, whether they involve questions of law or of fact, are for the court to decide.” Osborn, 918 F.2d at 729. As a result, Rule 12(b)(1) motions may be supported by evidence.
Filed September 8, 2016
In this motion, the United States asserts a factual challenge, and therefore, the Court may consider materials external to the First Amended Complaint, and the Liquidators’ allegations are not entitled to a presumption of truthfulness. Osborn v. United States, 918 F.2d 724, 728-30 (8th Cir. 1990). The court should “weigh the evidence and satisfy itself as to the existence of its power to hear the case.”
Filed June 23, 2016
Here, she has neither met the pleading burden (adjudged under Iqbal) nor shown standing factually (which this court judges on a preponderance of the evidence standard with the burden on plaintiff). Osborne, 918 F.2d at 728; see also VICC br. 6 n.8, 13-14 & n.11.
Filed September 8, 2014
Osborn, 918 F.2d at 728 n.4.
Filed March 28, 2017
When the Defendant challenges factual basis for subject matter jurisdiction, “the proper course is to request an evidentiary hearing on the issue.” Osborn v. U.S., 918 F.2d 724, 730 (8th Cir. 1990). Indeed, “because at issue in a factual 12(b)(1) motion is the trial court’s jurisdiction—its very power to hear the case—there is substantial authority that the trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case.”
Filed January 23, 2017
Under Rule 12(b)(1), the district court is free to hear evidence regarding jurisdiction and to rule on that issue prior to trial, resolving factual disputes where necessary. Titus v. Sullivan, 4 F.3d 590, 593 (8th Cir. 1993); Osborn v. United States, 918 F.2d 724, 729 n.6 (8th Cir. 1990). In such circumstances, no presumptive truthfulness attaches to a plaintiff’s allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims.
Filed October 31, 2016
A court confronted with a factual challenge Case 3:16-cv-00083-CRW-CFB Document 12-1 Filed 10/31/16 Page 9 of 22 8 must weigh the conflicting evidence concerning jurisdiction, without presuming the truthfulness of the plaintiff’s allegations. Osborn v. United States, 918 F.2d 724, 730 (8th Cir. 1990). ARGUMENT The three Counts in the Complaint arise out of Wendling’s displeasure with advice conveyed through the Corps cover letter that the excavation of root balls from a water of the United States could, under some circumstances, result in a discharge of dredged material requiring a CWA section 404 permit.
Filed September 12, 2016
In deciding a motion to dismiss for lack of subject matter jurisdiction, a court is not limited to the allegations set forth in the complaint, but may consider material outside of the pleadings in an effort to determine whether it has jurisdiction. Osborn v. United States, 918 F.2d 724, 729 (8th Cir. 1990). The Court must first distinguish between a facial attack and a factual attack.