case number nineteen dash two thousand and fifty eight bet chubb at all versus daimler trucks and a l l c argument not to exceed fifteen minutes per side mr lane you may proceed for the  you may please the court your honors good morning thomas lane on behalf of defendant appellant diamond or trucks north america the district court below tried hard but ultimately got its decision wrong due to  common misunderstanding conflating concepts of statutory standing with those related to jurisdiction now this to peel really presents a classic law school type civil procedure exam question that once the concepts are defined and understood is easily answered let's talk st very briefly about article three standing which is not really in dispute but it's good to understand what we're talking about in its most basic form is discussed by this court in roberts it's a question of whether a plaintiff is sufficiently adverse to a defendant to create a case or controversy moving on to michigan traditional notions of standing there are several ways that you can meet the standing requirement under the michigan supreme court's decision in lansing number one is that a valid question isn't a question chances are not whether or not whether you can meet the case or controversy requirement but what does michigan law require for stating i think that is true and i think the way that michigan praises it in the lansing case in lansing i think we all recognize really tried to put together michigan's standing law after a morass of cases really put it in a little bit of disarray and once you get to lance and what lansing has decided the michigan's highest court has decided that you can establish stand in one of two ways number one if you have a cause of action that's the easy way to do it but that's not the end of the inquiry a litigant will also be deemed to have standing under michigan law if that were to get has a special right or injury or a substantial interests that will be detrimental a affected in a manner different from the citizenry at large in really that's the key different from the citizenry at large well he was not he was there's a base question here much of your briefing is about federal law i have statutory standing but the question seems to me to govern this case is lansing's teaching that michigan standing is not equal to federal constitutional article three standing and you help me understand this but but what am radio is that lansing explains that federal courts that this is true the difference tends to relies on line the fact that the federal courts are courts of limited jurisdiction and so they have powers that are a new right and that includes article three case in controversy requirements but the state courts they retain everything that was not sated to the federal government and for that reason they have inherent what they call prudential standing requirements that are defined by michigan law aren't they and not a federal case or controversy now why why is there tell me if that's an incorrect analysis of lancing i don't think that it is a agree with your honor that we have to take a two step process when we're looking at standard standing number one article three standing and then you move into the michigan standing you have to really establish both because we're in a diversity case that is up in the court  because the parties are diverse obviously but once you establish both of those which i think not only have we done that but it's not really in dispute you move on to what really is the core issue of this appeal and that core issue is statutory standing and that's the heart of this if any kind of state ever a fact whether or not we have jurisdiction i can imagine a scenario where as states can tell loss by their law whether we have jurisdiction identical into a cause of that action it can never ever impact our jurisdiction i get that question because i asked that question around around table yesterday isn't it an odd notion that you need to look to the state law to determine whether or not this court or the district court had jurisdiction i think it's a little bit of a misnomer what you're really doing is you're looking to determine ok is there standing so that we sufficiently understand there's the case and controversy in or dealing with parties that are sufficiently adverse to each other but once we make that threshold finding we really move into the core issue which the courts have determined hey this idea of statutory standing has frequently been conflated and confused with the issue and subject matter jurisdiction specifically in statutory jurisdiction is really where judge berg down below i guess i would say lost his way and his and you're talking about  when it's talking about statutory standing it's actually citing from the let's mark case which is a supreme court decision of course federal and what it's doing in that case specifically is it's pointing out that here's the quote we have on occasion referred to this inquiry a statutory standing and treated it effectively as jurisdictional this nomenclature is misleading is the absence of  valid cause of action does not implicate subject matter jurisdiction galleria versus nationwide a two thousand and sixteen decision out of this court held similarly so really where judge  burghardt it wrong and i don't fault him for getting it wrong because these can be confusing concepts when you're going back and forth between the federal courts and the state court but where he got it wrong where he made his mistake was he the dismissal with prejudice but rule forty one dollars pretty clearly gives that discretion to a district judge would we have to remain to judge or to determine whether it's with prejudice or without prejudice well i think that's a possibility but i think the better approach is to look at the cases where routinely merits inquiry that that's what we're dealing with in this case is there a cause of action where these plaintiffs authorized under this statute you agree it's a discretionary call under rule forty one why i think i'd have to agree with that here i'm how do we do abuse of discretion or view when we don't know how you would ask your size his discretion i think because it's a clear error of law when you look at his decision as a clear error of law is per se an abuse of discretion was whether or agree that it is presumed that it's without prejudice or excuse me that it is with prejudice right so ultimately judge byrd had jurisdiction to decide and adjudicate this  case because it could have been heard in the michigan court this is a wrongful death case of course in michigan court can hear that case and then when we have diversity of jurisdiction it bumps up to the federal courts and of course accords can hear  wrongful death cases that are based upon diversity because we're dealing with statutory stand because we know that this is a merits inquiry meaning that these plaintiffs are there here's me meaning are these plaintiffs discretionary rights of the district court how do you respond to michigan's law about what is the appropriate dismissal in cases where there's a failure of capacity to file i'm thinking of the george morris cruz's case from ninety one when we were in when michigan was in its limited prudential doctrine that was brought back by lancing and it said very or is that still your position that that is her position i think there's plenty of case law where you look at the underlying facts we have plaintiffs who had their opportunity to be qualified they through neglect allowed that opportunity to pass and because they so clearly let it pass let those letters lapse the court can look at this and say  quite clearly that they are no longer authorized they do not have a cause of action because they are not authorized in these particular plaintiff should not be given a nd chance they had there and can they judge also say and  in certain circumstances he might be able to say that i don't think those are the circumstances before us thank you your time's up mr broderick yes the morning ours may please the court i definitely have a different reading on lansing counsel i think you're reading that case it's very clear that you can establish standing under michigan law one of does not provide guidance where you have to go into a more classic traditional law school type standing case in controversy requirement and i think the stat to the case discretion determine whether a litigant has standing in this case we have a in the federal district court based on diversity and the amount of controversy there is no federal court involved in this case it's your classic products liability type action defined by michigan law michigan's wrong best at you i also think that the case law is very clear that in this circumstance the court the district court has to look to state law for guidance on the court's the federal court's jurisdiction no what so then isn't standing purely in article three question for us and then he did the fact that they might not have standing in state court case to the merits i disagree with  court has to apply the substitute walk state or federal district court when it's well let me give you a hypo suppose michigan says foreign corporations can't sue in our core ok michigan as the law says foreign corporations are not allowed a corporation sues me in michigan and we're diverse we meet all the jurisdictional requirements do we lose our jurisdiction to assume they sue for breach of contract so it's under michigan law do we lose our jurisdiction because michigan says foreign corporations can't don't have standing in their courts don't know i don't think you do but i don't think that's the factor here i think respectfully that what you have that the only person that can bring in the actions and the i should say is the person represented and i think your client under article three had injury and in fact right oh people did yes based on that would be spouse parents children so i'm not sure why if michigan limited some part of the cause of action or said these people can't bring it that would go to the cause of action and not whether or not they actually had injury in fact under article three we can't displace i mean the supreme court's been very clear right we have to exercise the jurisdiction given to us in state courts i don't see a scenario in which state court can take away federal jurisdiction give me a hypothetical where they could and i don't think i can do that but i don't think that's what's happening here i mean the corps interpreted whether he has jurisdiction in this particular case and he doesn't and i think based on the statutory grant what you're saying based on the michigan statute to you are saying michigan took away terrorist action that otherwise existed under article three  given the fact that the original nature of this claim is a state law court for claims it has to say because there's no body it could look to on the merits of the case so and i think classic sense and it's it's after what was known as common in michigan courts used to be that health insurers had an independent right to sue common it was decided by the michigan spring or d in two thousand and ten i believe that indicated no you no longer have a statutory right to sue or an independent right to sue based on statute and so what it did is that it created quite frankly a nightmare court appropriate or apps couple to the case here because a it buttresses the fact that absent the statutory rant there is no standards it did allow under the court rule  ability to intervene by way of motion in action but again that's not what happened here it's not as if we had in a state that was intact and then some distant ure did and then granted the rd party insurers on the council if i if i could take you back to your you know you read an accurate quote from lansing about saying well if there's a split there is a specific cause of action you're in if there's not a specific cause of action the court should exercise its discretion as to whether to grant standing and take jurisdiction in our case didn't the district judge stop at the st part he said there's no statute so therefore there is no standing but he didn't go on to the nd part of that quote that you actually read to both of you for your other side on rebuttal that language from lansing does seem to give you know if you're really lansing it's all kind of pro pla on the majority side say well maybe we should have more standing to help out the plaintiffs but in this case it's your adversary who's trying to get stranded in a big border to kill the plaintiffs which i'm not sure how that comes out but isn't that really where we are it is your honor i mean there's a there's a whole lot of fixable problems that haven't been fixed for you today for whatever reason i guess t girl got it right even analyzed it correctly in the sense that ok wait a minute there is a cause of action here the proper parties are not for me i can't dismiss with prejudice because those parties are here would be  knowledge you know if it is only option really was dismissed without pressure because i don't think that quote allows him to go beyond that because there is a stance towards and the parties are supposed to work within the rules that they have and not you know i don't want to get into you know the pleadings speak for themselves but the bottom line is you had a case with no proper point before it and the statutory scheme outlined how i read it it's unfortunate for all procedural it is your honor you know and i was just i have a rule forty one hold it it's it wasn't fair go back to the district i mean we can exercise that discretion and in the st instance so doesn't that go back to the district court to decide whether it's with or without prejudice and you can make all the arguments you want in front of the district court i do believe it's a discretionary grant right i believe if the argument that the district court had jurisdiction that it has to the ok i guess i can assume that then it is a discretionary ramp but i do disagree with that because i think the jurisdiction is the diversity and the amount of controversy not and they always clearly handles here you have the lower court judge looking at behind the scenes as somebody have standing and the answer is yes absolutely they may not be position  in that instance i'm dismissing what but in those other cases where a judge is looking behind the scenes at the facts and saying could this person have seen the answer was absolutely not under either positions from what you would expect in the typical case and the arguments are not the usual that you would see but i guess the procedural stance that we find ourselves in dictates those positions  i would like to address the earlier position about whether or not there should be remanded in let judge berger decide the issue i guess the only additional point i would make in response to that inquiry is that determined that this plaintiff did not have authority to sue but i think that he didn't take it to in the right direction or down the right path and really where he beard was when he started to rely on the case and when he stated that the principle of statutory standing is jurisdictional that's just not correct be a state of liable and the galleria case prove that point that it's not issue those issues are often conflated and it's really a merits inquiry does our plaintiff has a cause have a cause of action and here without those letters of authority that they allow to apps are plaintiff does not have a cause of action and it say when you say he didn't go far enough the usual thing is then to say ok we oughta send it back for him to go appropriately further in that nd part of the quote  from from lansing but i take it your position is that as a matter of law he was required to say  that this was a merits determination and he had no discretion in the way that a judge the parvez has indicated i take it you wouldn't be satisfied with the  not only did he get it wrong but he had to go the other way juror so i think what i would do is i would start with the record before us in the record before us has been developed we don't need to send this down in other words for the district court to further develop record we have all that we need in front of us to decide this and since we have all that we need for the decision to be made the decision is akin to a twelve b six issue where because you cannot a cause of action he's playing due to the fact that they are not authorized under the statute because they allowed the letters to lapse when you can't do that it's a failure to state a claim or it's akin to a failure to a claim and judge bogs that determination can be made by this court and the determination can be with projects or it could be set back again for the exercise of discretion by the district court under rule three thousand and forty one dollars and michigan law isn't that correct also if you're looking at it from the rule forty one dollars perspective judge branch i won't disagree with you but i do believe that this akin to a twelve b sixty issue and it was converted to the twelve b six type of inquiry when mr brodrick came into court and informed the court that the letters of authority had expired and that turned it into a merits based inquiry at that time no further questions we appreciate your arguments thank you the case will be taken under advisement and i and opinion will be ranger can get course