Here is a portion of our brief to the second circuit for those who need case law for standards of review.  Thomas Dutkiewicz

 STANDARD OF REVIEW

Defendants frame their challenge to Plaintiffs’ § 1983 claim as a motion to dismiss for lack of subject matter jurisdiction under Federal Rules Civil Procedure 12 (b)(1).  Insofar as Defendants raise issues of sovereign immunity and standing, a 12(b)(1) motion is appropriate.  See, e.g., Reetz v. United States, 224 F.3d 794, 795 (6^th Cir. 2000) (sovereign immunity raises jurisdictional issue); Brown v. United States, 151 F.3d 800, 803-04 (8^th Cir. 1998) (sovereign immunity is jurisdictional doctrine properly addressed under Rule 12(b)(1)); White v. Lee, 227 F.3d 1214, 1242 (9^th Cir. 2000) (standing pertains to subject matter jurisdiction under Rule 12 (b)(1)); National Rifle Ass’n of America v. Magaw, 132 F.3d 272, 279 (6^th Cir. 1997) (standing pertains to court’s subject matter jurisdiction).

However, to the extent that Defendants’ Motion to Dismiss raises issues of whether the Plaintiffs may assert claims under 42 U.S.C. § 1983, Rule 12(b)(1) is inapplicable.  This is because such issues are appropriately considered under Fed. R. Civ. P. 12(b)(6), which addresses dismissals for failure to state a claim upon which relief can be granted.  See, e.g., Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 89 (1998) (noting that it is firmly established that the absence of a valid cause of action does not implicate subject matter jurisdiction); Trimble v. Asarco , Inc., 232 F.3d 946, 952-53 (8^th Cir. 2000) (district court should have analyzed motion to dismiss under Rule 12(b)(6), not Rule 12(b)(1), because claim did not appear to be immaterial and made solely for purpose of obtaining jurisdiction, nor was it wholly insubstantial and frivolous); Chauhdry v. Mobil Oil Corp., 186 F.3d 502, 504-05 (4^th Cir. 1999) (if court concludes that federal statute provides no relief, then it properly dismisses for failure to state a claim under Rule 12(b)(6), not for lack of subject matter jurisdiction under 12(b)(1)).

In addition, because Defendants rely on evidence outside the pleadings when addressing § 1983, their Motion to Dismiss should be treated as a motion for summary judgment under Fed. R. Civ. P. 56(c).  As set forth in Fed. R. Civ. P. 12(b):

If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56 . . .

The appropriate standard to employ when reviewing a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction turns on the nature of the motion.  If the 12(b)(1) motion attacks the plaintiff’s complaint on its face (i.e., the legal sufficiency of the complaint), the court is required to consider the allegations of the complaint as true.  e.g., RMI Titanium Co. v. Westinghouse Elec. Corp., 78 F.3d 1125, 1134 (6^th Cir. 1996); Ohio Nat’l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6^th Cir. 1990).  When responding to a facial attack on subjec t matter jurisdiction (such as Defendants’ attack on the issue of sovereign immunity), the plaintiff’s burden is not onerous; the plaintiff can survive the motion by showing any arguable basis in law for the claim made.  Musson Theatrical, Inc. v. Federal Express Corp., 89 F.3d 1244, 1248 (6^th Cir 1996), amended on denial of reh’g on other grounds, 1998 WL 1179860 (6^th Cir. Jan. 15, 1998).  On the other hand, when a court reviews a motion t o dismiss that challenges the factual basis of subject matter jurisdiction (such as Defendants’ challenge to Plaintiffs’ standing), the court must weigh the conflicting evidence to determine whether subject matter jurisdiction exists, and no presumptive truthfulness attaches to the plaintiff’s allegations.  Ohio Nat’l Life Ins. Co., 922 F.2d at 325; Musson Theatrical, 89 F.3d at 1248.

The standard for dismissal under Rule 12(b)(6) is a stringent one. “[A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.”  Hartford Fire Ins. Co. v. California, 509 U.S. 764, 811 (1993) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)).  For purpose of Rule 12(b)(6), the complaint must be construed in the light most favorable to the nonmoving party and its allegations taken as true.  Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).  This is the stand ard under which the Court should consider Defendants’ Motion to Dismiss on the issue of the viability of Plaintiffs’ § 1983 claims.

As stated above, although Defendants’ characterize their challenge to Plaintiffs’ § 1983 claim as a motion to dismiss, it is really a motion for summary judgment under Rule 56(c) because Defendants rely on evidence outside the pleadings to support their position.  Under Fed. R. Civ. P. 56(c), summary judgment should not be entered unless “the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”  The court must view the motion in the light most fa vorable to the nonmoving party.  Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986).