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Walker v. Botezatu

United States District Court, D. Arizona

February 2, 2017

Jerry Walker, Plaintiff,
v.
Emil Botezatu, et al., Defendants.

          REPORT AND RECOMMENDATION

          Honorable John Z. Boyle United States Magistrate Judge

         TO THE HONORABLE G. MURRAY SNOW, UNITED STATES DISTRICT JUDGE:

         Pending before the Court is Plaintiff's First Amended Complaint (Doc. 12), [1] and Defendant Emil Botezatu's Motion to Dismiss (Doc. 17). For the reasons below, the Court finds that it lacks subject matter jurisdiction over this matter. Therefore, it will recommend that Defendant's Motion to Dismiss for lack of subject matter jurisdiction be granted and this case be dismissed for lack of jurisdiction.[2]

         I. Background

         On November 27, 2015, Plaintiff filed his initial Complaint, and an Application to Proceed in District Court Without Prepaying Fees and Costs. (Docs. 1, 2.) On April 25, 2016, the Court granted Plaintiff's Application and, after screening, dismissed the Complaint with leave to amend. (Doc. 8.) Plaintiff filed his First Amended Complaint on May 23, 2016. (Doc. 12.) Plaintiff's First Amended Complaint asserts claims for “Intentional infliction of emotional harm” and “Theft and related offenses” against Defendants Emil Botezatu and Andre Derossetti, and fictitiously-named Defendants John Doe 1-10. (Id. at 5.) Plaintiff alleges this Court has diversity jurisdiction over this matter pursuant to 28 U.S.C. § 1332. (Id. ¶ 1.) Plaintiff claims that he is a United States citizen, currently residing in Mohave County, Arizona (id. ¶ 2), Defendant Botezatu is a citizen of Romania, is illegally present in the United States, and resides in Las Vegas, Nevada (id. ¶¶ 3, 31-32), and Defendant Derossetti, who has not appeared in this action, is “a Romanian born associate of Defendant Botezatu, currently residing in Las Vegas, Nevada” (id. ¶ 4).

         On June 17, 2018, Plaintiff filed Proof of Service Forms stating that Defendants were served on May 22, 2016. (Docs. 15, 16.)[3] On August 4, 2016, Defendant Botezatu filed a Motion to Dismiss for lack of subject matter and personal jurisdiction, improper venue, and failure to state a claim. (Doc. 17.) With regard to subject matter jurisdiction, Defendant Botezatu argues that the requirements of diversity jurisdiction are not met in this action because: (1) Plaintiff and Defendant Botezatu are both citizens of the United States and domiciled in Nevada; (2) Plaintiff has failed to establish that Defendant Derossetti is domiciled somewhere other than in Nevada, and (3) Plaintiff has failed to sufficiently establish the amount in controversy requirement. (Id. at 9-11.) Defendant Botezatu filed an Affidavit in support of his Motion to Dismiss, averring he is a dual citizen of Romania and the United States, and he is domiciled in Nevada. (Id. at 18.)

         On August 18, 2016, the Court issued Plaintiff a Warning Order, advising him that he must respond to Defendant's Motion to Dismiss, and setting a response deadline. (Doc. 19.) The Court's Order further specifically advised Plaintiff that if he failed to respond to Defendant's Motion, the Court may grant it, and, if the Court does so, Plaintiff's case would end. (Id.)

         Plaintiff filed his Response on September 19, 2016. (Doc. 21.) In his Response, Plaintiff does not dispute that he is domiciled in Nevada and only living temporarily in Arizona. Rather, Plaintiff alleges that Defendant is lying regarding his United States citizenship. Plaintiff further asserts that the Seventh Circuit Court's decision in Botezatu v. INS, 195 F.3d 311 (7th Cir. 1999), makes it impossible for Defendant Botezatu to now be a United States citizen. Plaintiff also filed Affidavits from two witnesses alleging that Defendant Botezatu has assisted them or others in entering the United States illegally. (Docs. 22, 24.)

         Defendant Botezatu argues in his Reply that Plaintiff's Affidavits are insufficient to defeat his Motion to Dismiss. (Doc. 25 at 6.) However, Defendant Botezatu's Reply does not specifically address the Seventh Circuit Court's decision in Botezatu, or the decision's impact on Defendant's citizenship status in the United States. Accordingly, on December 1, 2016, the Court ordered Defendant Botezatu to file supplemental briefing regarding his citizenship status in the United States. (Doc. 26.)

         On December 27, 2016, Defendant Botezatu filed his briefing, as well as a photocopy of his United States Passport and Passport Card, issued in October 2014. (Doc. 27.) On January 4, 2017, the Court issued an Order allowing Plaintiff until January 18, 2017 to file a response to Defendant's Supplemental Brief. (Doc. 28.) On January 9, 2017, Plaintiff filed a document titled Plaintiff's Request for Judicial Notice in Support of Plaintiff's Opposition to Defendant's Motion to Dismiss the Case. (Doc. 29.) On January 17, 2017, Plaintiff filed an additional Response to Defendant Botezatu's Supplemental Brief. (Doc. 30.) In both filings, Plaintiff asserts that Defendant Botezatu's Passport and Passport Card are forgeries, and Plaintiff requests the Court hold a hearing regarding Defendant Botezatu's United States citizenship. (Doc. 30.)

         The Court subsequently set a hearing for January 31, 2017, regarding subject matter jurisdiction. (Doc. 31.) On January 24, 2017, Plaintiff filed a Request to Waive Personal Appearance, requesting that his “acquaintance, ” John Badea, be allowed to appear instead of Plaintiff. (Doc. 32.) The next day, the Court denied Plaintiff's Request, and further warned Plaintiff that his case may be dismissed if he failed to appear at the hearing as ordered. (Doc. 33.) Plaintiff did not appear at the hearing. Defendant Botezatu appeared at the hearing and presented additional evidence regarding his United States citizenship and Nevada domicile.

         II. Subject Matter Jurisdiction

         a. Legal Standards

         Unlike state courts, federal courts only have jurisdiction over a limited number of cases, and those cases involve either a controversy between citizens of different states (diversity jurisdiction) or a question of federal law (federal question jurisdiction). See 28 U.S.C. §§ 1331, 1332. The United States Supreme Court has stated that a federal court must not disregard or evade the limits on its subject matter jurisdiction. Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 374 (1978). Thus, the Court is obligated to inquire into its subject matter jurisdiction in each case and to dismiss a case when such jurisdiction is lacking. See Valdez, 372 ...


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