U.S. District Court Judge David Carter dismisses Smelt v. USA

08/24/09 order of dismissal in Smelt v. United States of America (C.D.Cal. Case No. 8:2009-cv-00286, filed Mar. 9, 2009)

Yesterday, U.S. District Court Judge David O. Carter dismissed the lawsuit of a plaintiff couple in Orange County, California, who tried to challenge not only Prop. 8, but also the federal DOMA. (The Prop. 8 challenge was dismissed earlier.) Carter ruled narrowly on one of the procedural grounds addressed by the Department of Justice (DoJ) in its reply brief of last week, in which it defended the federal DOMA and its motion to dismiss.

Carter ruled that the DoJ's motion to dismiss "turns not on the merits of the dispute, but rather on a technical issue relating to jurisdiction." The Smelt plaintiffs initially filed their latest complaint in Orange County Superior Court, and then the DoJ - with the consent of plaintiffs - removed it to the U.S. District Court. But a federal district court does not have jurisdiction to hear a case removed from a state court if the state court did not have jurisdiction to hear it. [See 28 U.S.C. §1441(f).] Because the state lacked jurisdiction over the federal DOMA claims, Carter decided that the U.S. District Court must dismiss the case.

This case may be remembered as the occasion for the Obama Administration's retreat in defending the federal DOMA. Plaintiffs' attorney, Richard C. Gilbert, said that he plans to re-file the lawsuit later this week in federal court, having now already failed in two lawsuits to overcome dismissals. [For the outcome of the first lawsuit, see Smelt v. County of Orange, 447 F.3d 673 (9th Cir.2006).] I am doubtful that he has been an ideal choice to represent the plaintiff couple, Arthur Smelt and Christopher Hammer. See, for example, his support for dividing California into two states, with a "New California" to recognize equality in the right to marry.

08/24/09 Leonard Link, by law professor Arthur Leonard:

This dismissal is merely a speed-bump, since clearly the federal district court would have jurisdiction over a case filed directly in that court. Furthermore, at the very least I think it should be possible for Smelt and Hammer to file a suit that appropriately alleges some deprivation of rights under federal law attributable to Section 3 of DOMA.

08/25/09 Findlaw Courtside:

Therefore, no federal court jurisdiction, therefore no lawsuit. Until the plaintiffs re-file, which they're almost sure to do. Of course, Judge Carter pointed out that they'll then be subject to the new pleading standard under Bell Atlantic v. Twombly, which could be difficult for them to meet.

In his order, Judge Carter states:

Once it has adequately stated a claim, a plaintiff may support the allegations in its complaint with any set of facts consistent with those allegations. Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1969 (2007). Dismissal for failure to state a claim does not require the appearance, beyond a doubt,that the plaintiff can prove “no set of facts” in support of its claim that would entitle it to relief.

08/24/09 Law Dork, by attorney Chris Geidner:

This was the challenge that led to the now-infamous Department of Justice Motion to Dismiss on June 12, which led to the President’s Oval Office ceremony on June 17 and speech about LGBT equality at a White House reception on June 29. Just this past week, DOJ filed a far-less-overreaching reply brief in the case.