Justiciability Toolkit: Standing Allegations, Rule 12(b)(1) Motions, and Mootness Briefing

Summary. The working documents of a justiciability practice, annotated.

Template 1 — Defendant's decision framework

Run this before drafting anything. It is the most important document in this toolkit.

STANDING CHALLENGE — DECISION FRAMEWORK

1. IS THE ARGUMENT REAL?
   Does the complaint allege concrete harm, or only a violation?
   Is there a close historical analogue?
   Has any alleged risk materialized?
   -> If the plaintiff plainly has standing, STOP.

2. IF WE WIN, WHERE DOES THE CASE GO?
   Was it removed?  -> Remedy is REMAND, not dismissal.
   Does the state apply an analogous requirement?     Y / N / Unclear
   Will plaintiff's counsel refile in state court?    Likely / Unlikely
   Is the claim exclusively federal?                  Y / N
   -> If refiling in a worse forum is likely, RECONSIDER.

3. WHAT IS THE OBJECTIVE?
   [ ] End this individual claim
   [ ] Defeat a nationwide damages class     <- standing is strong here
   [ ] Narrow the class                       <- and here
   [ ] Stay in federal court                  <- do not raise
   [ ] Obtain a preclusive merits ruling      <- consider instead

4. FACIAL OR FACTUAL?
   Evidence the plaintiff was not affected?
   Delivery logs ___ Access records ___ Payment records ___
   Forensic report ___
   -> Factual attacks produce records; facial produce amendments.

5. WHEN?
   [ ] Now, 12(b)(1)   [ ] Summary judgment   [ ] Class certification
   -> Certification is usually where it does the most work.

6. WHAT DO WE CONCEDE?
   Plaintiffs who plainly have standing: ______
   Narrower class we could live with:    ______

7. FALLBACK MERITS GROUND: ______

DECISION: ______________  APPROVED BY: ______  DATE: ______

Template 2 — Standing allegations (plaintiff)

Replace the paragraph most complaints contain with these four.

Injury. On [date], Defendant [specific conduct]. As a direct result, Plaintiff [specific consequence: was denied X; paid $Y and received nothing; spent Z hours; lost the opportunity to A; had her private information disclosed to B]. Plaintiff experienced this harm personally.

Historical analogue. The harm Plaintiff suffered bears a close relationship to the harm remedied by the common law action for [defamation / public disclosure of private facts / intrusion upon seclusion / conversion / fraud]. As in that traditional action, Plaintiff alleges that [Defendant communicated false information about Plaintiff to a third party, namely [name] / Defendant disclosed information about Plaintiff that was private and not of legitimate public concern / Defendant intruded upon a matter as to which Plaintiff had a reasonable expectation of privacy].

Traceability. Plaintiff's injury is fairly traceable to Defendant's conduct. [Set out each link: Defendant did X; that caused Y; which resulted in Z. Where a third party is in the chain, explain why that party's action was a foreseeable consequence rather than an independent cause.]

Redressability. A favorable decision would redress Plaintiff's injury by [awarding damages compensating the loss described above / enjoining the conduct, which would prevent the recurrence described above].

The analogue paragraph is the one most complaints omit, and it is the one that most directly answers the question TransUnion LLC v. Ramirez, 594 U.S. 413 (2021) instructs courts to ask.

Template 3 — Facial 12(b)(1) motion outline

MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION
(Facial attack — Rule 12(b)(1))

I.    INTRODUCTION
      What the Complaint alleges, and the one thing it does not.
      One page.

II.   LEGAL STANDARD
      Rule 12(b)(1) facial attack; plaintiff bears the burden;
      three elements; TransUnion; Spokeo. Two pages maximum.

III.  THE COMPLAINT ALLEGES A STATUTORY VIOLATION, NOT AN INJURY
      A. What the Complaint alleges
      B. WHAT THE COMPLAINT DOES NOT ALLEGE
         - "The Complaint does not allege that Plaintiff read ___."
         - "The Complaint does not allege that Plaintiff was
            denied ___."
         - "The Complaint does not allege that any decision
            turned on ___."
         [Cite the paragraphs where these would appear.]
      C. "An injury in law is not an injury in fact."

IV.   NO CLOSE HISTORICAL ANALOGUE
      A. The traditional harms TransUnion identified
      B. Why none fits these allegations, element by element

V.    PLAINTIFF'S ANTICIPATED RESPONSES
      A. Informational injury — requires purpose and consequence
      B. Risk of future harm — does not support damages
      C. Congressional judgment — instructive, not dispositive

VI.   [CONCEDE ANY PLAINTIFF WITH OBVIOUS STANDING]

VII.  ALTERNATIVE GROUNDS UNDER RULE 12(b)(6)

VIII. CONCLUSION

Section III.B is the heart of the motion. Quoting the complaint's silence, with paragraph citations, is more persuasive than any case discussion.

Template 4 — Factual attack: custodian declaration

Converts a pleading argument into an evidentiary one. From a records custodian, not from counsel.

DECLARATION OF [NAME]

I am [title] at [Defendant]. I have personal knowledge of the matters stated here, or knowledge based on business records maintained under my supervision.

The systems. [Defendant] maintains [describe the system] in the ordinary course of business. It records, for each [communication / report / transaction], [the fields relevant to the standing question]. Records are created contemporaneously and maintained in the ordinary course.

The search. At counsel's request, I searched these systems for records relating to [Plaintiff], using [identifiers]. [Describe the search sufficiently that it could be replicated.]

The results. The records show that: a. [The communication was sent on (date) / was never sent]; b. [The record was never accessed / was accessed on (dates) by (whom)]; c. [Plaintiff's information was never disclosed to any third party]; d. [No payment was received from Plaintiff].

Limitations. [State honestly what the records do not show.]

True and correct copies of the relevant records are attached as Exhibits [ ].

I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct. Executed on [date] at [place].

[Signature] — pursuant to 28 U.S.C. § 1746

Paragraph 5 matters. A declaration that overstates what the records establish invites a devastating cross-examination and undermines the rest.

Template 5 — Standing discovery requests

Document requests to the plaintiff:

All documents concerning Your receipt of [the communication at issue].
Documents sufficient to show whether You read or viewed [the communication].
All documents concerning any action You took in response.
All documents concerning any payment You made to Defendant and what You received.
All documents concerning any alleged misuse of Your personal information.
All documents concerning when and how You first learned of the conduct alleged.
All communications with any investigator, monitoring service, scanning service, or other intermediary concerning Defendant, prior to Your retention of counsel.
All documents concerning any harm You contend You suffered.
Documents sufficient to show Your use of [the affected area / the product / the service].

Deposition topics: what the plaintiff actually received and read; what she did differently; what she paid and received; any misuse experienced; when and how she learned of the conduct; and how the matter came to her attention.

Request 7 is the one to serve. A meaningful share of statutory damages cases originate with an automated scan rather than with a person's experience, and the origin bears on standing and on typicality.

Template 6 — Class certification standing brief

OPPOSITION TO CLASS CERTIFICATION — STANDING SECTION

I.   EVERY CLASS MEMBER MUST HAVE ARTICLE III STANDING TO
     RECOVER INDIVIDUAL DAMAGES
     TransUnion, 594 U.S. at [ ].

II.  THE PROPOSED CLASS INCLUDES MEMBERS WHO SUFFERED NO
     CONCRETE HARM
     A. The class definition and its breadth
     B. THE SAMPLING EVIDENCE
        - Methodology (declaration of [analyst])
        - Result: __ of __ sampled members [never received /
          never opened / were never disclosed to anyone]
        - Extrapolation and confidence interval
     C. What the records do and do not show

III. IDENTIFYING INJURED MEMBERS REQUIRES INDIVIDUALIZED INQUIRY
     A. What must be determined for each member
     B. Why no common proof answers it
     C. Why records do not resolve it class-wide

IV.  INDIVIDUAL ISSUES PREDOMINATE — RULE 23(b)(3)

V.   THE PROPOSED CLASS IS NOT ASCERTAINABLE ON THIS RECORD

VI.  [IF APPLICABLE] ANY NARROWED CLASS WOULD ALSO FAIL BECAUSE ___

The sampling declaration is the evidence. Pull a random sample from the class list, apply the injury criterion to each, and report the proportion with methodology stated. A showing that most members suffered nothing is difficult to answer.

Template 7 — Sampling declaration outline

I.    QUALIFICATIONS (data analyst or statistician)
II.   THE DATA
      Source systems; fields available; period covered;
      completeness and known gaps
III.  SAMPLING METHODOLOGY
      Population definition; sampling frame; random selection
      method; sample size and the basis for it
IV.   THE CRITERION APPLIED
      What, in the data, indicates the alleged harm occurred
V.    RESULTS
      Number and proportion meeting the criterion;
      confidence interval
VI.   EXTRAPOLATION TO THE CLASS
VII.  LIMITATIONS
      What the data cannot show
VIII. DECLARATION UNDER 28 U.S.C. § 1746

Section VII protects the declaration. Overstating what the data proves is how a good sampling analysis gets excluded.

Template 8 — Covenant not to sue (to moot a case)

A grudging covenant fails to moot and concedes the conduct. Draft it broadly or not at all.

Covenant. [Defendant], on behalf of itself and its successors, assigns, parents, subsidiaries, and affiliates, unconditionally and irrevocably covenants that it will not make any claim or demand, or bring any action, against [Plaintiff] or any of its distributors, customers, or end users, based on [the conduct at issue], including: (a) [the specific products, versions, or activities at issue]; (b) any colorable imitation of the foregoing; and (c) any product or activity not more than colorably different from the foregoing, whether occurring in the past, present, or future.

Irrevocability. This covenant may not be withdrawn, modified, or revoked, and runs to the benefit of the parties identified above and their successors.

No admission. This covenant is not an admission of liability.

Effect. [Defendant] represents that it has no intention of resuming [the conduct] and that the covenant is intended to remove any live controversy.

The standard, from Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167 (2000), places the burden on the party asserting mootness to show it is absolutely clear the conduct could not reasonably be expected to recur. Already, LLC v. Nike, Inc., 568 U.S. 85 (2013) shows what breadth is required.

Template 9 — Mootness brief outline

For the party asserting mootness:

I.   THE CONTROVERSY NO LONGER EXISTS
     What changed; when; and why it is complete
II.  VOLUNTARY CESSATION DOES NOT APPLY, OR IS SATISFIED
     A. Laidlaw standard: "absolutely clear . . . could not
        reasonably be expected to recur"
     B. Why recurrence is foreclosed here
        [ ] Irrevocable covenant (attach)
        [ ] Formal policy change through a process that
            makes reversal difficult
        [ ] Product or program discontinued entirely
        [ ] Statutory or regulatory change
     C. Declaration supporting each
III. NO EXCEPTION APPLIES
     A. Not capable of repetition yet evading review
     B. No collateral consequences
     C. [Class posture, if applicable]
IV.  DISMISSAL, NOT JUDGMENT, IS THE APPROPRIATE DISPOSITION

For the party opposing:

I.   THE BURDEN IS ON DEFENDANT AND IT IS HEAVY
II.  RECURRENCE REMAINS POSSIBLE
     A. What the covenant/policy does NOT cover
     B. Timing relative to the litigation
     C. Absence of any binding commitment
III. NOMINAL DAMAGES PRESERVE THE CONTROVERSY
     Uzuegbunam v. Preczewski, 592 U.S. 279 (2021)
IV.  EXCEPTIONS APPLY
     Capable of repetition; collateral consequences;
     class relation-back

Template 10 — Nominal damages pleading

Plead this wherever a challenged policy might be withdrawn.

Prayer for relief. Plaintiff requests: ... (c) Nominal damages for the completed violation of Plaintiff's rights described above; ...

Why it matters: Uzuegbunam v. Preczewski, 592 U.S. 279 (2021) held that a claim for nominal damages for a completed violation defeats mootness. A plaintiff who seeks only injunctive relief against a policy the defendant then withdraws has no case; one who also sought nominal damages does.

Template 11 — Removal standing analysis

Complete BEFORE removing. This is the trap.

PRE-REMOVAL STANDING ANALYSIS

1. Does the plaintiff allege a concrete injury sufficient for
   Article III?                                     Y / N / Doubtful

2. If NO or DOUBTFUL:
   The federal court will REMAND, not dismiss.
   We will have spent $______ to return the case to state court
   and to establish that federal jurisdiction is unavailable.

3. If we remove anyway, why?
   [ ] Federal procedural rules for the portion with standing
   [ ] Class definition can be narrowed in a way that binds
   [ ] Transfer or consolidation available only federally
   [ ] Other: ______

4. If none of the above applies: DO NOT REMOVE.

5. Note: remand orders are generally not appealable.

ANALYSIS BY: ______  DATE: ______  DECISION: ______

Template 12 — Jurisdictional statement (appellate)

Jurisdictional statement. The district court had subject matter jurisdiction under 28 U.S.C. § 1331 [and/or § 1332]. Appellant has Article III standing because [one sentence stating the concrete injury, its traceability, and its redressability, with a record citation for each]. Appellant is aggrieved by the judgment because [ ]. This Court has jurisdiction under 28 U.S.C. § 1291, the judgment having been entered on [date] and the notice of appeal filed on [date].

Address standing affirmatively rather than waiting to be asked. Appellate panels raise it sua sponte, order supplemental briefing, and dismiss cases after full merits briefing on other issues. The record cannot be supplemented at that stage.