     Case: 11-51154     Document: 00511889527         Page: 1     Date Filed: 06/18/2012




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                           June 18, 2012
                                     No. 11-51154
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

LOUIS P. MCCASLAND, JR.; JOAN T. MCCASLAND; CASTROVILLE
AIRPORT, INCORPORATED,

                                                  Plaintiffs-Appellants

v.

CITY OF CASTROVILLE,

                                                  Defendant-Appellee


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:11-CV-506


Before HIGGINBOTHAM, DAVIS, and ELROD, Circuit Judges.
PER CURIAM:*
        The district court granted the City of Castroville’s motion to dismiss the
claims in plaintiffs’ First Amended Complaint, and plaintiffs now appeal that
judgment. The City’s motion raised as grounds for dismissal a lack of subject
matter jurisdiction, pursuant to FED. R. CIV. P. 12(b)(1), and plaintiffs’ failure to
state a claim upon which relief can be granted, pursuant to FED. R. CIV. P.
12(b)(6). The court found that “plaintiffs have failed to state a claim upon which


       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
   Case: 11-51154       Document: 00511889527         Page: 2     Date Filed: 06/18/2012

                                       No. 11-51154

relief may be granted” and dismissed their claims with prejudice under Rule
12(b)(6). In light of that conclusion, the court believed that it “need not consider
the City’s arguments regarding subject matter jurisdiction.”
       When a Rule 12(b)(1) motion is filed in conjunction with a Rule 12(b)(6)
motion, however, courts must consider the jurisdictional challenge first.1 Doing
so “prevents a court without jurisdiction from prematurely dismissing a case
with prejudice.”2 That concern is implicated here, and so, without expressing a
view on the district court’s Rule 12(b)(6) analysis, we vacate the district court’s
judgment granting the City’s Second Motion to Dismiss and dismissing the
plaintiffs’ claims with prejudice, and we remand for consideration of the City’s
jurisdictional arguments and further proceedings consistent with this opinion.
       VACATED AND REMANDED.




       1
        See Wolcott v. Sebelius, 635 F.3d 757, 762 (5th Cir. 2011); Moran v. Kingdom of Saudi
Arabia, 27 F.3d 169, 172 (5th Cir. 1994).
       2
         Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001) (per curiam); accord Hitt
v. City of Pasadena, 561 F.2d 606, 608 (5th Cir. 1977) (per curiam).

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