But, because there is “no mandatory sequencing” of threshold, non-merits inquiries (“[i]n appropriate circumstances”), it is a proper exercise of judicial power — and good craft — to decide the contemporaneous share ownership question first. Sinochem, 549 U.S. at 431, 127 S.Ct. 1184 (internal quotation marks omitted). This is so because the derivative action “may not be maintained if it appears that the plaintiff does not fairly and adequately represent the interests of shareholders or members who are similarly situated in enforcing the right of the corporation or association.” Fed.R.Civ.P. 23.1(a). If plaintiffs cannot properly act in a derivative capacity, the suit would not exist (at least not as brought by these plaintiffs). Cf. Potter v. Hughes, 546 F.3d 1051, 1055 (9th Cir.2008) (<HOLDING>). And, a determination as to whether
recognizing that a federal court is obliged to dismiss a case whenever it appears the court lacks subject matter jurisdiction recognizing that there are nonconstitutional grounds on which we may dismiss a suit before considering the existence of federal subject matter jurisdiction and concluding that the court could dismiss for failure to satisfy the demand pleading requirement of rule 231 before addressing subject matter jurisdiction holding a decision denying a motion to dismiss an action for lack of personal and subject matter jurisdiction is not appealable holding that unlike subject matter jurisdiction personal jurisdiction may be waived holding that there was no federal subject matter jurisdiction under the private cause of action provision of the act