A follow-up to my post about Michael Wolff’s suit against Melania and the court’s abstention from the DJ action: I think the court erred in dismissing
Wolff filed a state DJ action in state court; Melania removed. The parties cross-moved: Melania moved to dismiss for lack of PJ, insufficient service, and failure to state a claim (because this is an improper use of the DJA); Wolff moved to remand for lack of diversity jurisdiction (arguing that Melania is really a NY citizen despite her and the President’s public change of domicile to Florida).
The court denied Wolff’s motion to remand, finding diversity. The court then said that the propriety of this use of the DJA is not, as Melania argued, a merits issue, requiring denial of her 12(b)(6). Instead, the court held, this requires abstention, the court exercising its discretion to decline to exercise subject matter jurisdiction it has, regardless of the merits.
If so, however, the court should not have dismissed the action; it should have remanded to state court. That is the appropriate move when the court does not exercise subject matter jurisdiction in a removed action–whether because it lacks jurisdiction or because it declines to exercise it. The latter is obvious and unquestioned where a court declines supplemental jurisdiction under § 1367(c) or where it refuses to hear an action under some other abstention doctrine (e.g., Burford or Colorado River). The court should follow that process under Wilton/DJA abstention.
The court found more fundamental objections to the validity and propriety of Wolff’s lawsuit and the attempt by a potential tort defendant to beat the tort plaintiff into court; the judge clearly believes no DJ action can lie on these facts or in this posture. But by framing this as a declination of SMJ rather than a merits issue, the court forfeits the power to dismiss. Indeed, the court’s determination that a federal DJ action in federal court is improper in this context should not dictate whether a state DJ action in state court is improper.