The opinion of the court was delivered by: John M. Facciola United States Magistrate Judge
Currently pending and ready for resolution are the following motions: 1) Defendant Chesapeake Electrical Systems, Inc.'s Motion to Dismiss Cross-Claims for Lack of Subject-Matter Jurisdiction and, in the Alternative, for Failure to State a Claim Upon Which Relief May be Granted [#152], 2) L&S Construction's Motion to Strike Chesapeake Electric Systems Inc.'s Moot and Untimely Motion to Dismiss, Opposition to Same in the Alternative, and Request for Costs and Attorney['s] Fees Necessitated in Having to Respond to Same ("L&S's Mot.") [#154], 3) Defendant Chesapeake Electrical Systems, Inc.'s Objection to and Motion to Strike Marathon's Evidence Submitted in Opposition to Chesapeake's Motion to Dismiss ("Chesapeake's MTS") [#162], and 4) Cross-Claimant Marathon Corporation's Motion for Summary Judgment [#165].
The Court will not herein provide a detailed review of the procedural history of this case. Suffice it to say that plaintiff initially alleged various claims against three defendants: 1) Marathon, the general contractor, 2) Capitol Paving, a subcontractor, and 3) Chesapeake Electrical, another subcontractor and that as a result of a cross claim filed by Marathon against third party Ft. Myer Civil, numerous other subcontractors were brought into the suit, along with their various cross and counter claims. The focus of this opinion will be on the claims between defendants Marathon and Chesapeake, and third party defendant L&S, one of the additional subcontractors that was brought into the suit as a result of Marathon's claim against Ft. Myer.
I. L&S's Motion to Strike Chesapeake's Motion to Dismiss
L&S moves to strike Chesapeake's motion to dismiss on two bases. First, L&S argues that the motion to dismiss is moot because the cross claims have already been deemed conceded by the Court: "Due to Chesapeake Electrical Systems, Inc.['s] failure to answer and/or otherwise file a timely responsive pleading to Marathon and L & S Construction's Cross - Claims the court has already determined that legal liability with respect to those claims has been conceded." L&S's Mot. at 2. Second, L&S argues that Chesapeake waived its right to assert any defenses because of its failure either to timely file an answer or responsive pleading or to move this Court for leave to file its motion to dismiss. Id. at 3.
Chesapeake counters that, pursuant to Rules 12(h)(2) and (3) of the Federal Rules of Civil Procedure, "federal courts must always evaluate their subject matter jurisdiction even if considerable time has passed." Defendant Chesapeake Electrical Systems, Inc.'s Reply in Support of its Motion to Dismiss and Opposition to L&S Construction's Motion to Strike at 2 (emphasis in original).
Chesapeake's interpretation of Rule 12 is correct. In its motion to dismiss, Chesapeake first argues that this Court lacks subject matter jurisdiction under Rule 12(b)(1) and that it is free to make such an argument at any time. Memorandum of Law in Support of Defendant Chesapeake Electrical Systems, Inc.'s Motion to Dismiss Cross-Claims for Lack of Subject-Matter Jurisdiction and, in the Alternative, for Failure to State a Claim Upon Which Relief May be Granted ("Chesapeake's MTD") at 5. Without regard to the merits of Chesapeake's argument, the case law clearly supports the proposition that a court may at any time consider a challenge to its jurisdiction over the subject matter of a case. See Arbaugh v. Y & H Corp., 546 U.S. 500, 506 (2006) ("The objection that a federal court lacks subject-matter jurisdiction, see Fed. Rule Civ. Proc. 12(b)(1), may be raised by a party, or by a court on its own initiative, at any stage in the litigation, even after trial and the entry of judgment."); United States ex rel. Schweizer v. OCE, N.V., 577 F. Supp. 2d 169, 173 n.2 (D.D.C. 2008) ("Failure to raise certain other defenses in a pre-answer motion or answer renders them forfeit, but the Court may always dismiss an action for lack of subject matter jurisdiction.").
II. Chesapeake's Motion to Dismiss Marathon's and L&S's Cross Claims
The gravamen of Chesapeake's motion is that the Court lacks jurisdiction over the subject matter of Marathon's and L&S's cross claims because the relief they seeks is contingent upon a finding of liability on Chesapeake's part, a determination which the Court is yet to make. Chesapeake's MTD at 10. L&S counters that it is the practice of this Circuit to allow cross claims for indemnification and contribution to go forward once the underlying liability is determined and that the need for judicial economy argues against dismissing the cross claims at this point in the litigation. L&S's Mot. at 6.
Pursuant to Article III of the United States Constitution, "the judicial power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." U.S. CONST. art. III, § 1. Such power to preside extends only to "cases" and "controversies." Id. § 2. In order to determine whether there exists a case or controversy, the courts have developed various justiciability doctrines. Allen v. Wright, 468 U.S. 737, 750 (1984). Two of these doctrines--standing and ripeness--are implicated in the case at bar.
The first doctrine, standing, contains the following three elements:
First, the plaintiff must have suffered an "injury in fact"-an invasion of a legally protected interest which is (a) concrete and particularized... and (b) "actual or imminent, not 'conjectural' or 'hypothetical,' "... Second, there must be a causal connection between the injury and the conduct complained of-the injury has to be "fairly... trace[able] to the challenged action of the defendant, and not... th[e] result [of] the independent action of some third party not before the court."... ...