Court's 1995 Opinion "overlooks and neglects" the law of the case as contained in the 1991 Order, and that this oversight merits reargument pursuant to Local Rule 3(j). (Plaintiffs' Memo at 2-4.) Before addressing the merits of this claim, a brief discussion of the law of the case doctrine is helpful.
The law of the case doctrine has "developed to maintain consistency and avoid reconsideration of matters once decided during the course of a single lawsuit." 18 Charles A. Wright, et al., Federal Practice & Procedure § 4478, at 788 (1981); see Weitzman v. Stein, 908 F. Supp. 187, 193 (S.D.N.Y. 1995). Although a common label is used, the law of the case doctrine encompasses several different sets of rules. 18 Wright et al., § 4478, at 788. The set of rules that plaintiffs invoke in the instant motion are those governing a court's ability to follow its own prior rulings.
This Court recently noted that "the most distinctive law of the case rules are those that justify refusal by a trial court to reconsider matters once resolved in a continuing proceeding." Weitzman, 908 F. Supp. at 193 (citation omitted). It is important to note that law of the case rules "come into play only with respect to issues previously determined," Quern v. Jordan, 440 U.S. 332, 347 n.18, 59 L. Ed. 2d 358, 99 S. Ct. 1139 (1979), and that "questions that have not been decided do not become law of the case merely because they could have been decided." 18 Wright et al. § 4478, at 789. In general, law of the case rules discourage the reconsideration of matters previously decided "absent 'cogent' or 'compelling' reasons." Baden v. Koch, 799 F.2d 825, 828 (2d Cir. 1986); Conrad v. Beck-Turek, Ltd., 891 F. Supp. 962, 967 (S.D.N.Y. 1995). They do not, however, limit a court's ability to reconsider an issue if it deems such reconsideration appropriate. In re PCH Assocs., 949 F.2d 585, 592 (2d Cir. 1991); Weitzman, 908 F. Supp. at 967. Rather, as Justice Holmes explained, the doctrine "merely expresses the practice of courts generally to refuse to reopen what has been decided. . . ." Messenger v. Anderson, 225 U.S. 436, 444, 56 L. Ed. 1152, 32 S. Ct. 739 (1912). Based on these legal principles, plaintiff's law of the case claim fails for three reasons. First, the premise of plaintiffs' law of the case claim is meritless because this Court's 1991 Order is not inconsistent with this Court's 1995 Opinion. The 1991 Order denied defendants' motion to dismiss for failure to state a claim upon which relief could be granted, pursuant to Rule 12(b)(6), because this Court held that plaintiffs' allegations were "sufficient to state a violation of procedural due process, which is a claim upon which this Court may grant relief." 1991 Order. The 1995 Opinion, on the other hand, granted defendants' motion to dismiss for lack of subject matter jurisdiction, pursuant to Rule 12(b)(1). Walsh, 899 F. Supp. at 1239-40. Commentators caution that motions made pursuant to Rule 12(b)(1) should not be confused with those made pursuant to Rule 12(b)(6). 5A Wright & Miller, Federal Practice & Procedure § 1350, at 196 (2d ed. 1990). Because the instant motion has confused these two rules, this Court will review the basic principles governing each Rule.
Rule 12(b)(1) concerns a federal court's "lack of jurisdiction over the subject matter." Fed. R. Civ. P. 12(b)(1). Because "federal courts are courts of limited jurisdiction," they have power to adjudicate "only those cases within the bounds of Article III and the United States Constitution and Congressional enactments stemming therefrom." Walsh, 889 F. Supp. at 1236; see Marbury v. Madison, 5 U.S. (1 Cranch) 137, 173-80, 2 L. Ed. 60 (1803). The question of subject matter jurisdiction is so fundamental that it is a "question the court is bound to ask and answer for itself, even when not otherwise suggested. . . ." Mansfield, Coldwater & Lake Michigan Rwy. v. Swan, 111 U.S. 379, 382, 28 L. Ed. 462, 4 S. Ct. 510 (1883). Thus, there is no restriction on who may make a motion pursuant to Rule 12(b)(1), or when such motion may be made. In fact, Rule 12(h)(3) specifically provides that "whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action." The burden of proving that a federal court has subject matter jurisdiction over a given action rests with the party attempting to invoke the court's jurisdiction. Thomson v. Gaskill, 315 U.S. 442, 446, 86 L. Ed. 951, 62 S. Ct. 673 (1942); see generally, 13 Charles A. Wright et al., Federal Practice & Procedure § 3522, at 60-64 (2d ed. 1984).
In contrast, Rule 12(b)(6) is designed "to test the formal sufficiency of the statement of the claim for relief." 5A Wright & Miller, § 1357, at 294. In evaluating a Rule 12(b)(6) motion, "the court must accept the material facts alleged in the complaint as true," Cohen v. Koenig, 25 F.3d 1168, 1172 (2d Cir. 1994), and must not dismiss the action "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of [its] claim which would entitle [it] to relief." Conley v. Gibson, 355 U.S. 41, 45, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957). Furthermore, "the motion to dismiss for failure to state a claim is viewed with disfavor and is rarely granted." 5A Wright & Miller, § 1357, at 321. A party wishing to raise a Rule 12(b)(6) defense of failure to state a claim must do so before the service of a responsive pleading or the defense is waived. Fed. R. Civ. P. 12(h)(2).
The foregoing discussion confirms that Rules 12(b)(1) and 12(b)(6) address different aspects of a party's claim, are evaluated under different standards by the courts, and are subject to different rules concerning timing and waiver. Plaintiffs' claim that this Court's 1991 Order regarding a Rule 12(b)(6) motion should control this Court's later resolution of a 12(b)(1) motion ignores these differences. It further ignores the large body of uniform federal case law recognizing that these two Rules are separate and distinct. See, e.g., City of Kenosha v. Bruno, 412 U.S. 507, 512-15, 37 L. Ed. 2d 109, 93 S. Ct. 2222 (1972); Wheeldin v. Wheeler, 373 U.S. 647, 649, 10 L. Ed. 2d 605, 83 S. Ct. 1441 (1963); Baker v. Carr, 369 U.S. 186, 198-204, 7 L. Ed. 2d 663, 82 S. Ct. 691 (1962); Osborn v. United States, 918 F.2d 724, 729 (8th Cir. 1990); Xerox Corp. v. Genmoora Corp., 888 F.2d 345, 350-51 (5th Cir. 1989); Lunderstadt v. Colafella, 885 F.2d 66, 69-70 (3d Cir. 1989); Crawford v. United States, 796 F.2d 924, 929 (7th Cir. 1986); Bridges v. Eastman Kodak Co., 822 F. Supp. 1020, 1024-25 & n.7 (S.D.N.Y. 1993); Curiale v. Reissman, 798 F. Supp. 141, 144 (S.D.N.Y. 1992). Accordingly, this Court finds that the premise of plaintiffs' law of the case claim is meritless.
Second, plaintiffs' law of the case argument is flawed because plaintiffs have misapplied the legal principles of the law of the case doctrine. As previously mentioned, this Court's 1991 Order and its 1995 Opinion neither addressed nor decided the same issues. Because "the law of the case comes into play only with respect to issues previously determined," Quern, 440 U.S. at 347 n.18, and because this Court never determined the issue of subject matter jurisdiction in its 1991 Order, this Court finds that the 1991 Order cannot be the basis for a law of the case argument concerning jurisdiction.
Plaintiffs' law of the case claim also fails because questions of subject matter jurisdiction are generally exempt from law of the case principles. 18 Wright et al., § 4478, at 799 & n.32. It is elementary that a federal court cannot create jurisdiction where none exists. 5A Wright & Miller § 1350, at 204-05. Thus, a federal court cannot assert jurisdiction over a claim that is outside the scope of the court's jurisdiction merely by relying on the court's own prior decision that jurisdiction over such claim was proper. On the contrary, as Justice Scalia has explained, "it is a Court's obligation to dismiss a case whenever it becomes convinced that it has no proper jurisdiction, no matter how late that wisdom may arrive." Wyoming v. Oklahoma, 502 U.S. 437, 462, 117 L. Ed. 2d 1, 112 S. Ct. 789 (1991) (Scalia, J., dissenting) (emphasis in original); see also Liberty Mut. Ins. Co. v. Wetzel, 424 U.S. 737, 740, 47 L. Ed. 2d 435, 96 S. Ct. 1202 (1979); Dieffenbach v. Attorney General, 604 F.2d 187, 199 (2d Cir. 1979); Simmons v. Rosenberg, 572 F. Supp. 823, 824 (E.D.N.Y. 1983). Thus, even if this Court's 1991 Order had found that this Court had subject matter jurisdiction over plaintiffs' claims--and the 1991 Order made no such finding-- this Court finds that this Court would have been obligated to dismiss plaintiffs' claims as soon as it discovered that it lacked jurisdiction, namely, in its 1995 Opinion.
Finally, plaintiffs' law of the case claim is also meritless because plaintiffs have violated Local Rule 3(j). A party moving for reargument pursuant to Local Rule 3(j) "may not advance new facts, issues or arguments not previously presented to the court," Litton Indus., 1989 WL 162315, at *3, because Local Rule 3(j) is applicable only to "matters that were put before the court on the underlying motion." Houbigant, 1996 U.S. Dist. LEXIS 451, *9, 1996 WL 34128 at *3. After reexamining both memoranda that plaintiffs submitted on the underlying motion, this Court finds that plaintiffs never raised a law of the case argument to this Court prior to plaintiffs' submission of their Local Rule 3(j) motion and memorandum. See (Plaintiffs' Memorandum of Law in Reply and Opposition to Defendants' Cross-Motion for Dismissal and Summary Judgment 1-5 (Jan. 15, 1993).) Because plaintiffs did not assert a law of the case argument in plaintiffs' underlying motion for summary judgment, this Court holds that plaintiffs have violated Local Rule 3(j), and rejects their law of the case claim accordingly.
II. Plaintiffs Are Mistaken that this Court's 1995 Opinion Unfairly Criticized Plaintiffs' Counsel
Plaintiffs' second claim in support of their Local Rule 3(j) motion is equally unavailing. To reiterate, this Court's 1995 Opinion criticized plaintiffs' counsel for failing to cite relevant case law in support of his argument that this Court had federal question jurisdiction over plaintiff's claims, and for failing to distinguish the case law upon which defendants' relied in support of defendants' motion to dismiss for lack of subject matter jurisdiction. Walsh, 899 F. Supp. at 1239, 1240. Plaintiffs respond to this criticism in the instant motion by claiming that this Court's 1995 Opinion unfairly criticized plaintiff's counsel for two reasons. This Court finds that neither of these reasons refutes the criticism levelled at plaintiffs' counsel in the 1995 Opinion.
First, plaintiffs contend that plaintiffs' counsel did not cite relevant case law to this Court because plaintiffs' counsel "relied on the Court's earlier decision which made clear that [none of the case law upon which the Court relied in its 1995 Opinion] was relevant." (Plaintiffs' memo at 5.) As stated above, the 1991 Order resolved defendants' Rule 12(b)(6) motion to dismiss for failure to state a claim, which was an issue entirely separate from and unrelated to the issue of subject matter jurisdiction. E.g., 5A Wight & Miller, § 1350, at 196. Moreover, nowhere in this Court's one-page 1991 Order did this Court mention the issue of subject matter jurisdiction. Consequently, this Court finds that plaintiffs' contention is devoid of merit.
Second, plaintiffs claim that plaintiffs' counsel actually did cite relevant case law to this Court. The 1995 Opinion criticized plaintiffs' counsel twice. First, at the end of the discussion concerning federal question jurisdiction over challenges to Medicare Part B claims, the 1995 Opinion states:
Careful review of plaintiffs' papers reveals that plaintiffs failed to cite any relevant Medicare case law in opposition to defendants' motion to dismiss for lack of subject matter jurisdiction. Similarly, plaintiffs cited no authority that contradicts or limits Kuritzky's rule that federal courts lack subject matter jurisdiction over challenges to the application or interpretation of Part B regulations. Remarkably, plaintiffs made no attempt to distinguish Kuritzky and the other relevant Second Circuit case law in their Reply memo, despite defendants' reliance on this case to support defendants' jurisdictional argument.
Walsh, 899 F. Supp. at 1237. Second, the conclusion of the 1995 Opinion states:
The result in this case should come as no surprise to plaintiffs' counsel. Plaintiffs' counsel previously served as counsel in a very similar Medicare Part B challenge that the Second Circuit dismissed for lack of subject matter jurisdiction on the same grounds as those controlling in this case. Anderson v. Bowen, 881 F.2d 1 (2d Cir. 1989), aff'g, No. 87-4048, slip. op. (S.D.N.Y. Nov. 17, 1988). Remarkably, counsel neglected to cite Anderson or any of the other relevant case law previously mentioned. Counsel further failed to respond to defendant's reliance on these cases in support of defendants' 12(b)(1) motion. In light of counsel's familiarity with this are of Medicare law, and his personal knowledge of Anderson, this Court is puzzled by counsel's failure to cite these cases.