Students for Fair Admissions v. Trustees of the Estate of Bernice Pauahi Bishop

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAI‘I
STUDENTS FOR FAIR ADMISSIONS; I.P.;
B.P.; E.S., by and through her next friend
and mother, K.S.; and K.S.,
Plaintiffs,
vs.
TRUSTEES OF THE ESTATE OF BERNICE
PAUAHI BISHOP d/b/a KAMEHAMEHA
SCHOOLS,
Defendant.
Civil No. 25‐00450 MWJS‐RT
ORDER DENYING DEFENDANT’S
MOTION TO PERMIT JURISDICTIONAL
DISCOVERY
INTRODUCTION
Defendant, the Trustees of the Estate of Bernice Pauahi Bishop d/b/a
Kamehameha Schools, has not yet responded to the operative complaint or filed any
motions under Rule 12 of the Federal Rules of Civil Procedure. After it does one of
those things, it will have a full opportunity to engage in discovery practice, as the
ordinary rules of civil procedure allow.
But Defendant wishes to take discovery before it files any Rule 12 motion or
answer to the complaint, and for that reason, it now moves for permission to engage in
early discovery. Defendant seeks, in particular, what it describes as “jurisdictional”
discovery, or discovery going to the threshold question of whether Plaintiffs have
Case 1:25-cv-00450-MWJS-RT Document 143 Filed 06/02/26 Page 1 of 8
PageID.<pageID>

2
standing to sue. Dkt. No. 103. It first seeks to take discovery from the individual
Plaintiffs themselves (I.P., B.P., E.S., and K.S.), as well as from the individuals on whom
Plaintiff Students for Fair Admissions (SFFA) relies for associational standing (Families
A and B). Id. at PageID.2334–35. And if that discovery is not sufficient, Defendant
wishes to take third‐party discovery. Id. at PageID.2335–36.
Plaintiffs oppose the motion, but argue in the alternative that any pre‐answer
discovery should be carefully circumscribed and reciprocal. Dkt. No. 113.
The court held a hearing on the motion on May 27, 2026, and thanks counsel for
their effective advocacy. The arguments of counsel have helped to demonstrate that the
question presented here is not easily answered. But having carefully considered the
written submissions and oral arguments, the court concludes that early jurisdictional
discovery is not warranted. Defendant’s motion is therefore DENIED.
BACKGROUND
The court authorized the filing of a Third Amended Complaint, which was filed
on April 20, 2026. Dkt. No. 124. In that complaint, Plaintiff SFFA relies on Family A,
Family B, and Plaintiffs E.S. and K.S.—whom it says are members of SFFA—to allege
that it has associational standing under Article III of the U.S. Constitution to seek
prospective relief. Plaintiffs I.P. and B.P. separately allege that they have Article III
standing to seek retrospective relief (that is, damages).
Case 1:25-cv-00450-MWJS-RT Document 143 Filed 06/02/26 Page 2 of 8
PageID.<pageID>

3
Defendant intends to file one or more Rule 12 motions. Dkt. No. 103‐1, at
PageID.2315. Most pertinent here, Defendant represents that it will file a Rule 12(b)(1)
motion challenging Plaintiffs’ standing under Article III of the U.S. Constitution (and
perhaps under the relevant statute as well). Defendant adds that it intends to challenge
not only the adequacy of the factual allegations in the Third Amended Complaint, but
also the factual basis for the allegations. See id. (explaining that Defendant disputes
Plaintiffs’ Article III standing not only because of “factual shortcomings” in the
complaint, but “also, and more urgently, because of the facts”).
In other words, Defendant intends to bring both a facial challenge and a factual
challenge to Plaintiffs’ Article III standing. “A facial attack contends that the complaint
fails, on its face, to adequately allege jurisdiction, while a factual attack ‘contests the
truth of the plaintiff’s factual allegations, usually by introducing evidence outside the
pleadings.’” Whitaker v. Peet’s Coffee, Inc., Case No. 21‐cv‐07698, 2022 WL 278664, at *1
(N.D. Cal. Jan. 31, 2022) (quoting Leite v. Crane Co., 749 F.3d 1117, 1121 (9th Cir. 2014)).
And to aid its anticipated factual challenge, Defendant moves for permission to
take jurisdictional discovery before it files its Rule 12 motions. Plaintiffs oppose the
request, but alternatively argue that if Defendant is granted jurisdictional discovery,
they should be granted discovery as well. Plaintiffs further argue that the court should
carefully circumscribe any authorized discovery at this stage.
Case 1:25-cv-00450-MWJS-RT Document 143 Filed 06/02/26 Page 3 of 8
PageID.<pageID>

4
DISCUSSION
If Defendant were only contemplating a facial challenge, there would be no
reason to grant it jurisdictional discovery before it files its Rule 12 motions. But a
factual challenge raises more complex questions. To resolve a factual challenge, the
court will have to do more than merely scrutinize the legal adequacy of the Third
Amended Complaint’s allegations; it will have to weigh and consider the strength of
evidence and potentially make factual determinations.
This anticipated factual challenge weighs in favor of allowing Defendant to take
jurisdictional discovery before the Rule 12 motions are filed. After all, the “Federal
Rules of Civil Procedure do not provide for automatic or blanket stays of discovery
when a potentially dispositive motion is pending.” Realtek Semiconductor Corp. v.
MediaTek, Inc., 732 F. Supp. 3d 1101, 1117 (N.D. Cal. 2024) (citation omitted). And so, if
the court denies jurisdictional discovery now, Defendant could seek to take discovery
after its Rule 12 motions were filed. If discovery turned up additional reasons to
conclude that Plaintiffs lack Article III standing, Defendant would have to either
supplement an already‐filed Rule 12(b)(1) motion or file a new one. It is also possible
that Plaintiffs will request discovery in response to a Rule 12(b)(1) factual challenge,
which, again, would potentially have the disruptive effect of requiring discovery to take
place after an initial motion has already been filed, and possibly result in
supplementation of that motion thereafter. Allowing jurisdictional discovery now,
Case 1:25-cv-00450-MWJS-RT Document 143 Filed 06/02/26 Page 4 of 8
PageID.<pageID>

5
before the Rule 12(b)(1) motion is filed, could avoid this potential need for
supplementation—and thus conceivably streamline the resolution of the standing
issues.
But there is a wrinkle: at least at this stage, there appears to be a distinct
possibility that factual disputes about Article III standing will be “intertwined with the
merits” of Plaintiffs’ lawsuit. Perttu v. Richards, 605 U.S. 460, 472 (2025). Plaintiffs have
a Seventh Amendment right to a trial by jury, and in recognition of that right, the court
must “reserv[e] the jurisdictional issues” when there is “an identity between the
‘jurisdictional’ issues and certain issues on the merits.” Gulf Oil Corp. v. Copp Paving Co.,
419 U.S. 186, 203 n.19 (1974). As the Ninth Circuit put it, “where the jurisdictional issue
and the substantive issues are so intertwined that the question of jurisdiction is
dependent on the resolution of factual issues going to the merits, the jurisdictional
determination should await a determination of the relevant facts on either a motion
going to the merits or at trial.” Mecinas v. Hobbs, 30 F.4th 890, 896 (9th Cir. 2022)
(citation omitted).
Defendant does not vigorously dispute that jurisdictional factual disputes might
be intertwined with the merits here. Dkt. No. 116, at PageID.2570 (noting only that
“futility is not always relevant” (emphasis added)). But Defendant argues that it might
still prevail even using the standards that apply to “a motion going to the merits,”
Mecinas, 30 F.4th at 896, which is to say, a summary judgment motion. As Defendant
Case 1:25-cv-00450-MWJS-RT Document 143 Filed 06/02/26 Page 5 of 8
PageID.<pageID>

6
explains, “as with a motion for summary judgment, when a court is faced with a factual
attack on standing,” the court must “leave the resolution of material factual disputes to
the trier of fact when the issue of standing is intertwined with an element of the merits
of the plaintiff’s claim,” Dkt. No. 116, at PageID.2570 (cleaned up; emphasis in original),
which means that jurisdictional discovery here likely would only help to determine
whether there are any material factual disputes. See generally Bowen v. Energizer
Holdings, Inc., 118 F.4th 1134, 1143 (9th Cir. 2024) (recognizing that “when jurisdictional
issues are intertwined with an element of the merits of the plaintiff’s claim, the court
must treat the motion like a motion for summary judgment”).
But the only possibility Defendant hypothesizes in which there would be an
absence of material factual disputes is a scenario in which “Families A and B were to
admit in a deposition that they do not actually intend to apply to Kamehameha.” Id. It
is certainly true that if Families A and B (or Plaintiffs E.S. and K.S.) were to make an
admission of that sort in a deposition—or if I.P. and B.P. were to admit in a deposition
that I.P.’s past application was not sincere—then the court could possibly find there is
no material factual dispute on Article III standing. And as Defendant correctly says, the
court may rule as a matter of law when the proffered evidence reveals no genuine
dispute of material fact. At least at this stage, however, Defendant’s motion papers do
not provide a sufficient reason to believe there is any real likelihood that the individuals
in Families A or B, or any of the individual Plaintiffs, would admit in a deposition that
Case 1:25-cv-00450-MWJS-RT Document 143 Filed 06/02/26 Page 6 of 8
PageID.<pageID>

7
there is no good faith basis for the complaint’s factual allegations about them. And
while there is a greater likelihood that jurisdictional discovery would produce reasons
to disbelieve those factual allegations, again, the resolution of these factual questions—
in the circumstances of this lawsuit—likely must await a merits motion or trial.
Accordingly, although the issue is concededly close, the court concludes that the
more appropriate course is to require Defendant to file its Rule 12 motions now, with
discovery to follow. In the event Plaintiffs’ case collapses while discovery is underway,
Defendant can supplement its Rule 12 motions. If Plaintiffs request discovery in
response to a Rule 12 factual challenge to standing, the court can reconsider, at that
stage, whether Defendant should be given an opportunity to conduct discovery as well.
And Defendant also remains free to choose not to file any Rule 12 motions now, but
instead simply file an answer, engage in discovery, and then file a true motion for
summary judgment at the ordinary time.1
1 	At the hearing, Defendant represented for the first time that although Plaintiffs
I.P. and E.S. applied to attend Kamehameha Schools, their applications did not make it
past the first stage of the application process—a stage that, Defendant maintains, does
not take any account of whether an applicant has Native Hawaiian ancestry. And based
on that factual representation, Defendant contends that it should be afforded the right
to engage in jurisdictional discovery to assess whether I.P. and E.S. have Article III
standing. Here again, the problem is intertwining with the merits: the question of
whether the first stage of Defendant’s application process does or does not consider
Native Hawaiian ancestry appears to be intertwined with the merits—and, indeed,
Defendant does not meaningfully contend otherwise.
Case 1:25-cv-00450-MWJS-RT Document 143 Filed 06/02/26 Page 7 of 8
PageID.<pageID>

8
CONCLUSION
For the foregoing reasons, Defendant’s motion is DENIED. This denial is
without prejudice to a future application for jurisdictional discovery if any additional
grounds develop that would support it, beyond those considered and rejected here.
And in the meantime, the parties are directed to meet and confer and propose a
deadline for Defendant’s Rule 12 motions (or answer to the complaint) in light of this
ruling.
IT IS SO ORDERED.
DATED: June 2, 2026, at Honolulu, Hawai‘i.
Civil No. 25‐00450 MWJS‐RT, Students for Fair Admissions v. Trustees of the Estate of
Bernice Pauahi Bishop d/b/a Kamehameha Schools; ORDER DENYING DEFENDANT’S
MOTION TO PERMIT JURISDICTIONAL DISCOVERY
/s/ Micah W.J. Smith
Micah W.J. Smith
United States District Judge
Case 1:25-cv-00450-MWJS-RT Document 143 Filed 06/02/26 Page 8 of 8
PageID.<pageID>