United States District Court, D. Arizona
Douglas L. Rayes United States District Judge
Wlodzimierz Jan Litwin and Izabela Nordahl have filed a
motion to dismiss pursuant to Rule 12(b). (Doc. 40.) The
motion is fully briefed. (Docs. 44, 46, 48.) For reasons
stated below, the motion is granted in part and denied in
Subject Matter Jurisdiction
Nordahl argues that subject matter jurisdiction is lacking
because the amount in controversy, as applicable to her, is
far less than the jurisdictional requirement of $75, 000.
(Doc. 40 at 2-3.) The Court agrees.
28 U.S.C. § 1332(a)(1), federal courts have diversity
jurisdiction over cases between citizens of different states
involving claims greater than $75, 000. The party invoking
federal jurisdiction bears the burden of establishing the
elements of jurisdiction, including the amount-in-controversy
requirement. Lujan v. Defenders of Wildlife, 504
U.S. 555, 561 (1992). Plaintiff has failed to meet his burden
with respect to Nordahl.
diversity case involves more than one defendant, the
"plaintiff may aggregate the amount against the
defendants to satisfy the amount-in-controversy requirement
only if the defendants are jointly liable; however, if the
defendants are severally liable, plaintiff must satisfy the
amount-in-controversy requirement against each individual
defendant." N. County Commc'ns Corp. v.
McLeodUSA Telecomm. Servs., Inc., No.
CV-09-2063-PHX-GMS, 2010 WL 1779445, at *5 (D. Ariz. May 3,
2010) (citing Libby, McNeill, & Libby v. City
Nat'l Bank, 592 F.2d 504, 510 (9th Cir. 1987)).
Plaintiff has not shown that Nordahl is jointly liable with
the other Defendants for all damages claimed. The only claim
asserted against Nordahl is one for unjust enrichment based
on Litwin allegedly selling her a 2015 Mercedes worth $31,
129 for only $8, 000. (Doc. 28 ¶¶ 60, 93.) The
other claim for false filing with the Arizona Corporation
Commission is not asserted against Nordahl. (¶¶
79-89.) Although the claim alleges that Defendant
Mozdyniewicz was operating in connection with Litwin to
export and sell assets of ARTBE (¶ 89), no such
allegation is made against Nordahl.
contention that diversity of citizenship allows a suit to be
filed in federal court even if the amount in controversy does
not exceed $75, 000 (Doc. 44 at 3), is wholly without merit.
See 28 U.S.C. § 1332(a)(1). Plaintiff asserts
that Nordahl owes him the full value of the 2015 Mercedes
(Doc. 44 at 4), but the vehicle's value - as alleged in
the complaint - is only $31, 129 (Doc. 28 ¶ 60). This is
$44, 000 less than the jurisdictional amount.
cites 28 U.S.C. § 1367 for the proposition that the
Court may exercise supplemental jurisdiction over state law
claims. (Doc. 46 at 6-8.) Section 1367(b), however, limits
supplemental jurisdiction where, as in this case, exercising
such jurisdiction over claims against joined defendants
"would be inconsistent with the jurisdictional
requirements of [§] 1332." Here, exercising
supplemental jurisdiction over the $31, 129 unjust enrichment
claim against Nordahl would be inconsistent with the $75, 000
amount-in-controversy requirement in § 1332(b). See
Green v. Doukas, No. 97 CIV.8288CNGAY, 2001 WL 767069,
at *3-5 (S.D.N.Y. June 22, 2001) (declining to exercise
supplemental jurisdiction over diverse party permissibly
joined as a defendant where the claim against the party did
not independently satisfy the amount-in-controversy
short, the Court finds that it is without subject matter
jurisdiction over Plaintiff's claim for unjust enrichment
against Nordahl. The motion to dismiss is granted in this
regard pursuant to Rule 12(b)(1).
Litwin contends that the complaint is subject to dismissal
pursuant to Rule 12(b)(2) because Plaintiff erroneously cited
§ 1332 in connection with his statement of personal
jurisdiction, and the complaint therefore is deficient under
Rule 8(a)(1). (Doc. 40 at 3-4.) Litwin cites no case law in
support of this contention, and does not dispute that he had
sufficient minimum contacts with Arizona to support personal
jurisdiction in this case.
Court finds that the complaint, read as a whole, sufficiently
asserts personal jurisdiction over Litwin. The motion to
dismiss is denied in this regard.
Insufficient Service of Process
contend that dismissal is warranted pursuant to Rules
12(b)(4) and (5) for insufficient process and service thereof
under Rule 4. (Doc. 40 at 4-8.) This issue was discussed at
the scheduling conference and an evidentiary hearing is set
for June 21. (Doc. 45.) Given dismissal of the claim against
Nordahl for lack of subject matter jurisdiction, the
evidentiary hearing will address only whether Litwin has been
properly served with process. The Court will rule on this
aspect of the motion to dismiss following the evidentiary
hearing. To the extent the Court ...