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Jacobs v. Wheaton Van Lines Inc.

United States District Court, D. Arizona

June 11, 2018

Albert L Jacobs, Jr., et al., Plaintiffs,
v.
Wheaton Van Lines Incorporated, Defendant.

          ORDER

          James A. Teilborg Senior United States District Judge

         Pending before the Court are several motions filed by Plaintiffs Albert L. Jacobs, Jr. and Linda Spector Jacobs (collectively and individually, “Plaintiffs”) and Defendant Wheaton Van Lines, Inc. (“Defendant”). The Court has reviewed the motions and will address each in turn.

         I. Background

         Plaintiffs contracted with Defendant, a moving company, to transport Plaintiffs' goods from New York to Arizona. (Doc. 1 at 2; Doc. 16-3 at 4-6). Following a dispute over payment, Defendant filed a breach of contract action on November 8, 2016 against Plaintiffs in Maricopa County Superior Court. (Doc. 1 at 2; Doc. 16 at 2). On May 15, 2017, Plaintiffs filed a counterclaim against Defendant in state court alleging that 15 U.S.C. § 1666i of the Fair Credit Billing Act barred Defendant's claims. (Doc. 16 at 2). The Maricopa County Superior Court later dismissed Plaintiffs' counterclaim on August II, 2017 and sent the matter to arbitration. (Doc. 16 at 3; Doc. 16-2 at 2).

         Plaintiffs then filed the instant action in this Court on October 27, 2017 seeking a declaratory judgment that 15 U.S.C. § 1666i is binding upon Defendant. (Doc. 1).[1]Plaintiffs also filed a Motion for Temporary Restraining Order (“TRO”) (Doc. 11) and a Motion for Preliminary Injunction (Doc. 13) on December 6, 2017. This Court denied both motions in its Order (Doc. 18) dated December 13, 2017. On January 18, 2018, Plaintiffs filed a Notice of Removal (Doc. 1) of the pending state court matter under case number CV-18-0181-PHX, and simultaneously filed a Motion to Consolidate Cases (Doc. 21) with this case based on the common issue regarding 15 U.S.C. § 1666i. This Court granted Plaintiffs' unopposed Motion to Consolidate (Doc. 21) this case with CV-18-0181-PHX on March 23, 2018. (Doc. 29). This Order concerns motions filed both before and after consolidation. The Court will discuss other facts as necessary in the body of this Order.

         II. Plaintiffs' Motion for Leave to File (Doc. 7)

         Prior to the consolidation, Plaintiffs filed a Motion for Leave to File Amended Answer (Doc. 7) on January 29, 2018 in CV-18-0181-PHX. Defendant did not oppose the motion. Accordingly, the Court will grant Plaintiffs' Motion to File (Doc. 7) and lodged Doc. 8 shall be filed as Plaintiffs' Amended Answer.

         III. Plaintiffs' Motions for Sanctions (Doc. 11; Doc. 12)

         On March 12, 2018, Plaintiffs filed a Motion for Sanctions (Doc. 11) against Defendant for Defendant's alleged “refusal to comply with this Court[']s Order for Mandatory Disclosure” in CV-18-0181-PHX. (Doc. 11 at 1). Plaintiffs request their copy and mail charges for documents produced for and served on Defendant, and additional monetary sanctions in the amount of $10, 000. (Id.).[2] “The failure to disclose information under [the federal rules] can result in sanctions, including excluding the evidence from trial and imposing monetary sanctions, unless the failure to disclose was substantially justified or harmless.” Accentra Inc. v. Staples, Inc., No. CV 07-5862 ABC (RZx), 2010 WL 8450890, at *4 (C.D. Cal. Sept. 22, 2010) (citing Fed.R.Civ.P. 37(c)(1)). Here, Plaintiffs provide no evidence or supporting documentation to support their Motion for Sanctions. (See Doc. 11). Accordingly, Plaintiffs failed to carry their burden on the motion and Plaintiffs' Motion for Sanctions (Doc. 11) is hereby denied.

         Plaintiffs filed a related motion on March 12, 2018 seeking to bar evidence under Rule 37 for Defendant's alleged failure to comply with mandatory disclosure rules. (Doc. 12 at 1). Rule 37(b)(2)(A) provides that the Court may issue sanctions “[i]f a party . . . fails to obey an order to provide or permit discovery. Fed.R.Civ.P. 37(b)(2)(A)(i)-(vii). Plaintiffs allege that Defendant did not “produce any documents or name any persons with knowledge of the matter before this [C]ourt” prior to the disclosure deadline. (Doc. 12 at 1). Plaintiffs request that “this Court preclude [Defendant] from calling any witnesses and using any documents in this Court proceeding. [Plaintiffs] further request[] that [s]anctions be imposed.” (Id.). Again, Plaintiffs fail to demonstrate why sanctions are proper and offer no explanation beyond the conclusory allegations referenced herein. Accordingly, Plaintiffs Motion for Sanctions (Doc. 12) under Rule 37 is hereby denied.

         IV. Objection to Defense Counsel's “Limited Appearance” (Doc. 20; Doc. 33)

         In this case, Plaintiffs filed an Objection (Doc. 20) to Defense Counsel's “Limited Appearance” on December 18, 2017. Plaintiffs later reiterated their Objection (Doc. 33) following consolidation on April 18, 2018. Defense Counsel previously filed a “Limited Notice of Appearance” (Doc. 15) on December 8, 2017 strictly for the purpose of arguing Defendant's Motion to Dismiss (Doc. 16) and related request for sanctions. Plaintiffs argue that they are “unaware of any provision for such a ‘Limited Appearance'” and request that this Court direct Defense Counsel to “either make a general appearance or [Defendant] should be directed to appoint new counsel who would enter a General Appearance.” (Doc. 20 at 2).

         Plaintiffs are correct that the “Federal Rules of Civil Procedure do not expressly authorize or prohibit an attorney's limited scope appearance in a federal action.” Folta v. Winkle, No. CV-14-01562-PHX-PGR (ESW), 2016 WL 4087103, at *1 (D. Ariz. July 28, 2016). “While the Local Rules of Civil Procedure in some districts expressly authorize limited scope appearances, the Local Rules of Civil Procedure in the District of Arizona are silent as to such appearances.” Id. (citations omitted). Rule 83(b) provides that, in the absence of controlling law, a “judge may regulate practice in any manner consistent with federal law, rules adopted under 28 U.S.C. §§ 2072 and 2075, and the district's local rules.” Id. at *2. In other cases, “judges in the District of Arizona have allowed attorneys to appear in prisoner civil rights cases for the limited scope of participating in the Court's inmate mediation program.” Id. Therefore, “[a] limited scope appearance is not inconsistent with federal law or the Federal and Local Rules of Civil Procedure.” Id.

         Consistent with precedent in the District of Arizona, the Court finds that it may allow Defense Counsel to appear for the limited purpose of arguing Defendant's Motion to Dismiss (Doc. 16) and related request for sanctions under Rule 83(b). See id. “The Court further finds good cause to permit [Defense Counsel] to make a limited scope appearance for that purpose.” Id. Accordingly, Plaintiffs' Objection (Doc. 20; Doc. 33) is hereby overruled.

         V. Defendant's Motion to Dismiss (Doc. 16)

         Defendant filed a Motion to Dismiss (Doc. 16) on December 8, 2017 under Rule 12(b)(1) for lack of subject matter jurisdiction and Rule 12(b)(6) for failure to state a claim upon which relief can be granted. Plaintiffs filed a Response (Doc. 22)[3] on January 26, 2018 and Defendant filed a Reply (Doc. 23)[4] on February 6, 2018.[5] “Because a federal court cannot reach the merits of any dispute until it confirms its own subject matter jurisdiction, the merits of the Rule 12(b)(1) motion will be discussed first.” Rasidescu v. Midland Credit Mgmt., Inc., 435 F.Supp.2d 1090, 1095 (S.D. Cal. 2006) (citing Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94-95 (1998)).

         A. Legal Standard

         “Federal Rule of Civil Procedure 12(b)(1) allows litigants to seek the dismissal of an action from federal court for lack of subject matter jurisdiction.” Tosco Corp. v. Cmtys. for a Better Env't, 236 F.3d 495, 499 (9th Cir. 2001) overruled on other grounds by Hertz Corp. v. Friend, 559 U.S. 77 (2010); Fed.R.Civ.P. 12(b)(1). “When the motion to dismiss attacks the allegations of the complaint as insufficient to confer subject matter jurisdiction, all allegations of material fact are taken as true and construed in the light most favorable to the nonmoving party.” Renteria v. United States, 452 F.Supp.2d 910, 919 (D. Ariz. 2006) (citing Fed'n. of African Am. Contractors v. City of Oakland, 96 F.3d 1204, 1207 (9th Cir. 1996)). In the case of a pro se complainant, the pleadings must be construed liberally, and the plaintiff must be given the “benefit of any doubt.” Abassi v. I.N.S., 305 F.3d 1028, 1032 (9th Cir. 2002) (citations omitted). However, “even pro se plaintiffs must allege, with at least some degree of particularity, overt acts taken by [the] defendant which support [their] claims.” Rasidescu v. Midland Credit Mgmt., Inc., 435 F.Supp.2d 1090, 1099 (S.D. Cal. 2006); see also Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982). Accordingly, the Court may not supply essential elements of the claim that were not pleaded to establish a claim or the basis for subject matter jurisdiction under Rule 12. See id.

         Federal courts are courts of limited jurisdiction, and may only hear cases as authorized by the Constitution and Congress; namely, cases involving diversity of citizenship, a federal question, or cases to which the United States is a party. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). “It is to be presumed that a cause lies outside this limited jurisdiction, and the burden of establishing the contrary rests upon the party asserting jurisdiction.” Id. (citations omitted). Accordingly, on a motion to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1), the plaintiff has the burden of ...


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