2 any interested party seeking such declaration, whether or not further relief is or could be sought.” See 28 U.S.C. § 2201. Thus, the Declaratory Judgment Act makes an exception to the general rule and grants federal courts discretion to decline to exercise jurisdiction over a claim for declaratory relief under certain circumstances.

c o m 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 whether the United States is a named party or not. And since the government’s wrongful interpretation of the LAUTENBERG AMENDMENT is a de facto barrier to the Plaintiffs exercising a fundamental constitutional right, a judicial determination of rights and duties of the parties under this federal law is also appropriate under the DECLARATORY RELIEF ACT, 28 U.S.C. §§ 2201, 2202. In the event this Court deems the United States a necessary party, Plaintiffs should be granted leave to amend.4 2.

Because the BFPP defense requires a demonstration of compliance with all of the statutory conditions for the defense, see PCS Nitrogen Inc. v. Ashley II of Charleston LLC, 714 F.3d 161, 179-80 (4th Cir. 2013), and because MPM cannot satisfy the “legally required notices” element, MPM has no BFPP defense. Having no other defense, MPM should be held liable for contribution under CERCLA on summary judgment.28 CONCLUSION For all of the foregoing reasons, the Court should grant partial summary judgment in favor of UCC and against MPM, as follows:  Dismissing MPM’s state-law claims for restitution (Count VI) and declaratory judgment as to restitution (Count VII); and  Declaring MPM liable in contribution for its equitable share of any recoverable past or future removal costs, under CERCLA §§ 113(f)(1), 113(g)(2), 42 U.S.C. §§ 9613(f)(1), 9613(g)(2), and 28 U.S.C. § 2201(a) (UCC’s First and Second Claims for Relief). 28 In the event that the Court does not hold MPM liable for CERCLA contribution on summary judgment, UCC reserves the right to further challenge MPM’s BFPP defense at trial based on all available grounds.

Wilton v. Seven Falls Co., 515 U.S. 277, 289; 115 S.Ct. 2137; 132 L.Ed.2d 214 (1995). The Sixth Circuit Court of Appeals has identified five factors as relevant to the question of whether a district court should exercise jurisdiction in a declaratory judgment action: (1) whether the declaratory action would settle the controversy; (2) whether the declaratory action would serve a useful purpose in clarifying the legal relations in issue; The Defendant Academy has recently filed a motion seeking to dismiss this action,12 arguing that this Court should not exercise its jurisdiction under 28 U.S.C. §2201. EMC will timely respond to same motion with respect to the issues specific to the Academy’s underlying claims.

Thus federal courts cannot apply the Florida statute to determine whether or not a federal declaratory action can survive a motion to dismiss (citing McMahon v. Toto, 256 F.3d 1120, 1131–32 (11th Cir. 2001)) (applying Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938)). See also, Ministerio Evangelistico Int'l v. United Specialty Ins. Co., No. 16-25313-CIV, 2017 WL 1363344, at *1 (S.D. Fla. Apr. 5, 2017) (“Because declaratory relief presents a procedural issue, this Court construes Ministerio's claim for declaratory relief under the federal Declaratory Judgment Act, 28 U.S.C. § 2201.”).

3. The Declaratory Judgment Act, 28 U.S.C. §§ 2201-2202, does not provide subject matter jurisdiction Finally, Jordan’s Complaint fails to establish that the Declaratory Judgment Act confers subject matter jurisdiction for her purported claim. As discussed above, the Declaratory Judgment Act does not provide a basis for establishing subject-matter jurisdiction under the federal question statute, 28 U.S.C. § 1331.

It is EMC’s position that this Court should exercise jurisdiction in this declaratory action. 28 U.S.C. §2201 provides: In a case of actual controversy within its jurisdiction, . . . any court of the United States, upon the filing of an appropriate pleading, may declare rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought. Any such declaration shall have the force and effect of a final judgment or decree and shall be reviewable as such.

Jurisdiction and Venue 8. These counterclaims seek a declaratory judgment pursuant to 28 U.S.C. §§ 2201 and 2202. Answer: Admitted that the TWC Counterclaimants purport to seek a declaratory judgment pursuant to 28 U.S.C. § 2701 and 2202, but denied that they are entitled to the requested relief.

161 § 15-6-21 ( d) If any judge fails or refuses, unless providentially hindered or unless counsel for the plaintiff and the defendant agree in writing to extend the time, to obey the provisions of subsections (a) through (c) of this Code section, or if any judge repeatedly or persistently fails or refuses to decide the various motions, demurrers, and injunctions coming before him in the manner provided by such subsections, such conduct shall be grounds for impeachment and the penalty therefore shall be his removal from office. Page 24 of25 Case 2:16-cv-00123-WCO Document 47-1 Filed 08/11/16 Page 24 of 25 CERTIFICATE OF SERVICE The undersigned hereby certifies that was served a true and accurate copy of this BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT PURSUANT TO RULE 56 FRCP TO OBTAIN A DECLARATORY JUDGMENT PURSUANT TO TITLE 28 U.S.C. § 2201 WITH A TRIAL BY JURY IN RE: RESPONDENT C. ANDREW FULLER AND DEFENDANTS FRIENDSHIP PAVILION ACQUISITION COMPANY LLC AND MICHAEL B. WEINSTEIN BY TIM SUNDY via U. S. mail addressed as follows: Christian Alexander Fuller, State of Georgia Law Department, 40 Capitol Square S.W., Atlanta, GA 30334-1300; Michael B. Weinstein, MBW Law, LLC, 949 Image Avenue- Suite B, Atlanta, GA 30318; Mary Jo Volkert, State of Georgia Law Department, 40 Capitol Square S.W., Atlanta, GA 30334-1300; Thomas Ling, Arsenal Real Estate Partners, 1 776 on the Green, 6th Floor, 67 Park Place East, Morristown, New Jersey 07960; Arsenal Real Estate Fund 11-IDF, LP, 1776 on the Green, 6th Floor, 67 Park Place East, Morristown, New Jersey 07960; Gary Picone, Arsenal Real Estate Partners, 1776 on the Green, 6th Floor, 67 Park Place East, Morristown, New Jersey 07960; Lori M. Beranek, Office of U.S Attorney, Northern D.G., 75 Spring St. S.W., Atlanta, GA 30303 Respectfully submitted 11th August 2016. Tim

SIXTH COUNTERCLAIM – DECLARATORY JUDGMENT U.S. PATENT NO. 6,359,898 293. Motorola admits that Apple purports to counterclaim gainst Motorola pursuant to the patent laws of the United States, Titled 35 of the United States Code and the Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 2202. Motorola specifically denies Apple's allegations regarding non-infringement, invalidity, or unenforceability of the asserted Mobility patents, including U.S. Patent No. 6,359,898.