Jeffrey M. Weiner, Esquire of Jeffrey M. Weiner, Esq, Wilmington, Delaware. Counsel for Plaintiffs.
Joseph C. Handlon, Deputy Attorney General, Delaware Department of Justice, Wilmington, Delaware and John B. Hindman, Deputy Attorney General, Delaware Department of Justice, Dover, Delaware. Counsel for Defendant.
SUE L. ROBINSON, District Judge.
On December 28, 2011, plaintiffs Reybold Venture Group XI-A LLC, Reybold Venture Group XI-8 LLC, Reybold Venture Group XI-C LLC, Reybold Venture Group XI-D LLC, Reybold Venture Group XI-E LLC, and Reybold Venture Group XI-F LLC (collectively, "plaintiffs") filed a complaint alleging that the Voluntary School Assessment Act ("VSA"), 9 Del. C. § 2661, is discriminatory and/or unconstitutional. (D.I. 1) Defendant Delaware Department of Education ("defendant") answered the complaint on February 7, 2012. (D I. 4) Currently before the court are defendant's motion for summary judgment (D.I. 21) and plaintiffs' motion for partial summary judgment (D.I. 22).
Plaintiffs are each Delaware Limited Liability Companies and hold the title interest to the Meridian Crossing subdivision ("Meridian") originally designed to contain 738 residential units. (D.I. 1 at ¶¶ 1, 4) Defendant is an Agency of the State of Delaware. (D.I. 1 at ¶ 2)
The VSA was enacted on July 30, 1999. It provides that, prior to recording a major subdivision plan in New Castle County, an applicant must either submit a certification to the Department of Land Use that the appropriate school district has adequate capacity or pledge to pay a Voluntary School Assessment ("VSA payment"). See 9 Del. C. § 2661. The VSA excludes developments restricted to individuals 55 years of age or older and low income housing. 9 Del. C.§ 2661 (c)(2). The VSA payment is calculated on a per-unit basis, based on the average cost of construction for a public school. 14 Del C. § 103(c)(3). It is capped at 5% of the total cost of the residential unit. Id.
On June 9, 2003, plaintiffs entered into an agreement with defendant providing that plaintiffs would make VSA payments in the amount of $3, 261 for each qualifying residential unit built over the next five years. For any subsequent five year period, the amount of the VSA payment would be recalculated based on then current construction cost data. (D.I. 23 at 3-4); see 14 Del. C. § 103(c). Plaintiffs made the VSA payments as needed through September 23, 2011. (D.I. 28 at 16) As of November 21, 2011, defendant recalculated the amount per the agreement as $6, 088. ( Id. )
III. STANDARD OF REVIEW
Not only may the lack of subject matter jurisdiction be raised at any time, it cannot be waived and the court is obliged to address the issue on its own motion. See Moodie v. Fed. Reserve Bank of NY, 58 F.3d 879, 882 (2d Cir. 1995). "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, " without reaching the merits of the remaining arguments. Fed.R.Civ.P. 12(h)(3); Moodie, 58 F.3d at 882. Once jurisdiction is challenged, the party asserting subject matter jurisdiction has the burden of proving its existence. See Carpet Group lnt'l v. Oriental Rug Importers Ass'n, Inc., 227 F.3d 62, 69 (3d Cir. 2000). Under Rule 12(b)(1), the court's jurisdiction may be challenged either facially (based on the legal sufficiency of the claim) or factually (based on the sufficiency of jurisdictional fact). See 2 James W. Moore, Moore's Federal Practice § 12.30 (3d ed. 1997). Under a facial challenge to jurisdiction, the court must accept as true the allegations contained in the complaint. See id. Dismissal for a facial challenge to jurisdiction is "proper only when the claim clearly appears to be immaterial and made solely for the purpose of obtaining jurisdiction or... is wholly insubstantial and frivolous.'" Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1408-09 (3d Cir. 1991) (quoting Bell v. Hood, 327 U.S. 678, 682 (1946)).
Under a factual attack, however, the court is not "confine[d) to allegations in the... complaint, but [can] consider affidavits, depositions, and testimony to resolve factual issues bearing on jurisdiction." Gotha v. United States, 115 F.3d 176, 179 (3d Cir. 1997); see also Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891-92 (3d Cir. 1977). In such a situation, "no presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims." Carpet Group, 227 F.3d at 69 (quoting Mortensen, 549 F.2d at 891). Although the court should determine subject matter jurisdiction at the outset of a case, "the truth of jurisdictional allegations need not always be determined with finality at the threshold of litigation." 2 Moore§ 12.30. Rather, a party may first establish jurisdiction "by means of a nonfrivolous assertion of jurisdictional elements and any litigation of a contested subject-matter jurisdictional fact issue occurs in comparatively summary procedure before a judge alone (as distinct from litigation of the same fact issue as an element of the cause of action, if the claim survives the jurisdictional objection)." Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 537-38 (1995) (citations omitted).
A. Tax ...