On Sunday, I blogged about a temporary restraining order issued by the Central District of California against the Chabad of Irvine, California, and Rabbi Alter Tenenbaum. The suit, brought by United Poultry Concerns, sought to enjoin the Jewish ritual of Kaparrot. For reasons I explained in my earlier post, there is no conceivably way the injury they assert under state law qualifies as an injury under Article III. However, a more fundamental defect is that the district court lacks subject matter jurisdiction. Thanks to Attorney Aryeh Kaufman, in less than 36 hours, we managed to prepare and file an amicus brief supporting Chabad–a few hours before the 8:00 a.m. deadline. We also requested permission to participate in oral arguments.

You can download our brief here. Here the crux of our jurisdictional arguments:

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.