United States District Court, D. Arizona
A. Teilborg Senior United States District Judge
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.
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).
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).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.
Plaintiffs' Motion for Leave to File (Doc. 7)
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.
Plaintiffs' Motions for Sanctions (Doc. 11; Doc.
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.). “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.
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.
Objection to Defense Counsel's “Limited
Appearance” (Doc. 20; Doc. 33)
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
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.”
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
Defendant's Motion to Dismiss (Doc. 16)
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.
on January 26, 2018 and Defendant filed a Reply (Doc.
on February 6, 2018. “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)).
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.
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 ...