How to properly file a moition challenging subject matter jurisdiction
Kingsman Funding
A number of people have asked
How to properly file a moition challenging subject matter jurisdiction.
I need help with that as well.
I have excerpted below from a memorandum that has been used in such motions often.
The unlimited original jurisdiction of all justifiable matters can only be exercised by the court through the filing of pleadings which are sufficient to invoke the power of the court to act. The requirement for a verified information to confer jurisdiction on the court and empower the court to act has been applied to both courts of record and not of record.
When jurisdiction is challenged, the party asserting that the court has jurisdiction has the burden of showing that it exists on the record. Once the court has knowledge that it is lacking, the court has no discretion but to dismiss the action. Failure to dismiss means that the court is proceeding in clear absence of all jurisdiction and the judgment would be void.
Defendants would show unto the Court, Void judgment is one rendered by court which lacked personal or subject matter jurisdiction or acted in manner inconsistent with due process, U.S.C.A. Const. Amends. 5, 14 Matter of Marriage of Hampshire, 869 P.2d 58 ( Kan. 1997). ) Eckel v. MacNeal, 628 N.E. 2d 741 (Ill. App. Dist. 1993). Fed. Rules Civ. Proc., Rule 60(b)(4), 28 U.S.C.A.; U.S.C.A. Const. Amend. 5 – Klugh v. U.S., 620 F.Supp. 892 (D.S.C. 1985) U.S.C.A. Const. Amend. 5 – Triad Energy Corp. v. McNell 110 F.R.D. 382 (S.D.N.Y. 1986), U.S.C.A. Const. Amed. 5, Hays v. Louisiana Dock Co., 452 n.e.2D 1383 (Ill. App. 5 Dist. 1983), In re Estate of Wells, 983 P.2d 279, (Kan. App. 1999).
Void judgment is one rendered in absence of jurisdiction over subject matter or parties 310 N.W. 2d 502, (Minn. 1981)., Lange v. Johnson, 204 N.W.2d 205 (Minn. 1973) Void judgments are those rendered by court which lacked jurisdiction, either of subject matter or parties, Cockerham v. Zikratch, 619 P.2d 739 (Ariz. 1980).
Judgments entered where court lacked either subject matter or personal jurisdiction, or that were otherwise entered in violation of due process of law, must be set aside, Jaffe and Asher v. Van Brunt, S.D.N.Y.1994. 158 F.R.D. 278
Subject matter jurisdiction is two parts: One being the statutory or common law authority for the court to hear the case. to which proceedings in question belong; the power to deal with the general subject involved in the action. Subject matter jurisdiction can never be waived, cannot attach by mutual consent of the parties, or through lapse of time or course of events. When jurisdiction is challenged, the party asserting that the court has jurisdiction, or the Court, has the burden of showing that it exists on the record.
Once the court has knowledge that jurisdiction is lacking, the court has no discretion but to dismiss the action. Failure to dismiss means that the court is proceeding in clear absence of all jurisdiction and subjects the judge to suit.
“Once jurisdiction is challenged it must be proven.” Hagins vs Levine 415 US 533 note 3 (1974)
There is no discretion to ignore that lack of jurisdiction." Joyce v. US, 474 F2d 215.
"Jurisdiction can be challenged at any time, even on final determination." (Basso v. Utah Power & Light Co 495 2nd 906 at 910).
"The burden shifts to the court to prove jurisdiction." Rosemond v. Lambert, 469 F2d 416.
"Court must prove on the record, all jurisdiction facts related to the jurisdiction asserted." Lantana v. Hopper, 102 F2d 188; Chicago v. New York, 37 F Supp 150.
The State of Rhode Island v. The State of Massachusetts, 37 U.S. 709, stated once the question of jurisdiction is raised "it must be considered and decided before the court can move one step further."
Once jurisdiction is challenged, the court cannot proceed when it clearly appears that the court lacks jurisdiction, the court has no authority to reach merits, but, rather, should dismiss the action." Melo v. US, 505 F2d 1026.
"…Where the question of jurisdiction in the court over the person, the subject matter, or the place where the crime was committed can be raised, in any stage of a criminal proceeding; it is never presumed, but must always be proved; and it is never waived by the defendant. " U.S. vs. Rogers, District Court Ark.,23 Fed 658 1855
From there you have to show where in the pleadings of the plaintiff they have failed to establish subject matter or personal jurisdiction to bring their action.
Except in a few states there is no ’proper way’ that will be considered over another way to file any motion. I have never seen a filing rejected on procedure or form that did not allow the one failing to correct what was wrong and refile. So that is not the problem.
To show anyone where a plaintiff has failed to establish the issues of jurisdiction I will have to see some complaints and summons that go with them. Subject matter is much harder to challenge than personal jurisdiction to bring an action. If they establish a contract exists and that you have not kept it and because of this they are damaged, then they have established subject matter of an action. It is hard for them to miss that. But whether they have established the ownership of your contract is another question. I will be glad to look at any of those if some want me to do that. Dr Weatherly
On another very important subject let me add something.
Most people don't understand this, but God was in Christ paying for all our sins on the cross and its over and done and finished and He's not angry with us about anything any more.
The Bible says, He is for us, not against us.
He died in our place to purchase us for Himself and if you'll give in to Him, there's nothing He won't be able to do in your life.
I know, I have been with Him for 41 years.
And when we finally leave this world, we'll live with Him forever,
if we belong to Him.
If you need to think about that or you have someone in mind that does, I'll be glad to talk with them. My number again was 662-489-6554. I just wanted you to know that.
Dr. Weatherly
