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A Pelican Update Makes the Case More Impenetrable - Updated
Tuesday, May 25 2010 @ 02:33 PM EDT

Strange. After six months of no activity, here's an entry in the Pelican v. Darl and the Gang suit:

05/20/2010 - Minute Entry for proceedings held before Judge Naomi Reice Buchwald: Oral Argument held on 5/20/2010. (mro) (Entered: 05/24/2010)

Oral argument about what? No indication...Perhaps the motions to dismiss, at last? That was my first thought, but it turns out PACER lists it, if you dig a bit, as a status conference, not a hearing. So I'm a bit puzzled. If it was indeed a status conference, presumably the judge wants to get the case going again, if it's going forward. If so, there should be a schedule or some indication of life on the docket fairly soon or a notice that it's been settled or dropped, or whatever the parties are doing that we don't know about yet. And if it was oral argument, then it was a hearing, and there should be an order eventually.

Update: It was about the motions to dismiss, and it looks like they were all denied, subject to further briefing and perhaps submitting new motions, but from the Order it looks like the judge herself raised subject matter jurisdiction issues that the parties will now file their legal briefs about that, and only if they get past that threshold issue will the motions to dismiss come up again:

05/26/2010 - 48 - ORDER: The respective motions to dismiss filed by defendants Darl McBride (Dkt. No. 26) and Bryan Cave (Dkt. No. 31), as well as plaintiff's motion to dismiss the Talos Defendants' counterclaim (Dkt. No. 38) are each denied without prejudice to being refiled, if appropriate, upon a new notice of motion supported by the existing papers, after the Court's adjudication of the subject matter jurisdiction issues. ORDER denying 26 Motion to Dismiss for Lack of Jurisdiction; denying 31 Motion to Dismiss; denying 38 Motion to Dismiss. (Signed by Judge Naomi Reice Buchwald on 5/26/10) Copies Mailed by Chambers.(db) (Entered: 05/26/2010)

Here's how the Order reads:

WHEREAS the Court held oral argument on three motions to dismiss on May 20, 2010; and

WHEREAS at the argument the Court raised threshold issues concerning its subject matter jurisdiction; and

WHEREAS the parties requested, and were afforded, the opportunity to submit briefing on those threshold issues; and

WHEREAS the Court cannot properly decide the pending motions prior to resolving the issue of its subject matter jurisdiction; it is hereby

ORDERED that the respective motions to dismiss filed by defendants Darl McBride (Dkt. No. 26) and Bryan Cave (Dkt. No. 31), as well as plaintiff's motion to dismiss the Talos Defendants' counterclaim (Dkt. No. 38) are each denied without prejudice to being refiled, if appropriate, upon a new notice of motion supported by the existing papers, after the Court's adjudication of the subject matter jurisdiction issues.

Here's an explanation of what subject matter jurisdiction means:
Subject-matter jurisdiction is the requirement that the court have power to hear the specific kind of claim that is brought to that court. While the parties may waive personal jurisdiction and submit to the authority of the court, the parties may not waive subject-matter jurisdiction. In fact, the court may dismiss the case sua sponte or, on its own for lack of subject-matter jurisdiction.
In other words, the judge is asking if hers is the right court to handle this case.

Here is where you can find Pelican's and Bryan Cave's motions to dismiss. And Darl's is here. He raised the issue of personal jurisdiction, but that's not the same as subject matter jurisdiction. We'll have to wait until the transcript becomes available, I guess, or until the legal briefs are filed, to figure out what the judge is thinking. But it says she raised issues, not just one.


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