What is the test for dismissing a motion by the government to dismiss the motion?
The following excerpt is from Howfield, Inc. v. United States, 409 F.2d 694 (9th Cir. 1969):
1 Our affirmance of the trial court is not to be read as a holding of lack of jurisdiction of the trial court to entertain the action.
The motion of the government to dismiss in the trial court was based on two grounds, (1) that the court lacked jurisdiction, and (2) assuming jurisdiction to exist, the plaintiff (appellant here) failed to state a claim on which relief would be granted. The final paragraph of the trial court's order reads, "The rationale of Hill v. United States, supra, appears to be controlling here. Therefore * * * the motion to dismiss is hereby granted."
The trial court was correct in its reliance on Hill v. United States. Plaintiff (appellant) failed to state a claim for relief in that the action was premature.
No evidentiary hearing was required, since the undisputed facts brought the case directly within Hill v. United States, supra.
The motion of the government to dismiss in the trial court was based on two grounds, (1) that the court lacked jurisdiction, and (2) assuming jurisdiction to exist, the plaintiff (appellant here) failed to state a claim on which relief would be granted. The final paragraph of the trial court's order reads, "The rationale of Hill v. United States, supra, appears to be controlling here. Therefore * * * the motion to dismiss is hereby granted."
The trial court was correct in its reliance on Hill v. United States. Plaintiff (appellant) failed to state a claim for relief in that the action was premature.
No evidentiary hearing was required, since the undisputed facts brought the case directly within Hill v. United States, supra.
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