                              UNITED STATES DISTRICT COURT
                              FOR THE DISTRICT OF COLUMBIA


 LINWOOD MCCREARY,

                 Plaintiff,

         v.                                                 Civil Action No. 18-cv-0969 (DLF)

 JAMIE DIMON, et al.,

                 Defendants.


                                   MEMORANDUM OPINION

       In his Complaint, the plaintiff Linwood McCreary makes several allegations against

Jamie Dimon and JPMorgan Chase Bank, N.A. relating to a residential mortgage loan that

McCreary obtained in connection with his home. Before the Court is the defendants’ Motion to

Dismiss the Complaint. Dkt. 9. The defendants argue, among other things, that the Complaint

should be dismissed under Rule 12(b)(1) of the Federal Rules of Civil Procedure because the

plaintiff failed to allege that the Court has subject matter jurisdiction over the action.

       On July 5, 2018, the Court issued a minute order directing the plaintiff to respond to the

motion on or before July 20, 2018. The order explained that if the plaintiff failed to respond by

that date, the Court would treat the defendants’ motion to dismiss as conceded under Local Rule

7(b). See Local Civil Rule 7(b).

       The D.C. Circuit recently criticized Local Rule 7(b) in two cases. Neither case applies

here. In Winston & Strawn, LLP v. McClean, the Circuit held that a district court cannot deem

an unopposed motion for summary judgment conceded. See 843 F.3d 503, 507-08 (D.C. Cir.

2016). The Circuit, however, limited the holding to motions for summary judgment. Id. at 508.

In Cohen v. Board of Trustees of the University of the District of Columbia, the Circuit upheld a
district court’s dismissal of a complaint but urged district courts to avoid merits dismissals under

Local Rule 7(b). See 819 F.3d 476, 480, 483 (D.C. Cir. 2016). The Circuit was troubled that

Local Rule 7(b) effectively places the burden of persuasion on the non-moving party, while Rule

12(b)(6) requires the moving party to bear that burden. Id. at 481.

       Those cases do not apply here because the defendants based their motion to dismiss

partly on jurisdictional grounds. The burden of establishing jurisdiction rests with the plaintiff,

United States ex re. Doe v. Staples, Inc., 773 F.3d 83, 88 (D.C. Cir. 2014), and a Rule 12(b)(1)

dismissal is not a merits decision.

       Because McCreary has constructively conceded that the Court lacks subject matter

jurisdiction, the Court grants the defendants’ motion to dismiss the complaint under Rule

12(b)(1). A separate order consistent with this decision accompanies this memorandum opinion.




                                                              ________________________
                                                              DABNEY L. FRIEDRICH
                                                              United States District Judge
Date: August 6, 2018




                                                 2
