United States District Court, D. Arizona
Douglas L. Rayes United States District Judge.
the Court are Defendants Zarcal Res Tempe LLC
(“Zarcal”) and Ucomm LLC's
(“Ucomm”) motion to dismiss (Doc. 15), and
Plaintiff John Marsh's motion to strike (Doc. 20).
Neither party requested oral argument. For the following
reasons, Defendants' motion to dismiss is granted and
Plaintiff's motion to strike is denied.
formerly leased residential property from Defendants. In
2017, Defendants filed a state court eviction action against
Plaintiff after he defaulted on his rent. In the context of
that eviction action, Plaintiff raised several affirmative
defenses/counterclaims, including that Defendants violated
Arizona law by failing to make certain requested repairs that
Plaintiff claimed materially affected his health and safety,
and by failing to file certain information with the Maricopa
County Assessor's office. (Doc. 15-3.) Plaintiff's
requested relief on his counterclaims included $336, 757,
allegedly representing “all prepaid rent since [he]
took possession” of the property. (Id. at 7.)
On October 3, 2017, the Maricopa County Superior Court found
Plaintiff guilty and entered judgment in favor of Defendants
for possession of the property and for $36, 493.11 in unpaid
rent, late fees, and other charges. (Doc. 15-2.) Plaintiff
did not appeal that judgment.
one month later Plaintiff filed this lawsuit. His complaint
alleges claims that are materially identical to his
affirmative defenses/counterclaims in the state court
eviction action. Plaintiff once again complains that
Defendants violated Arizona law by failing to repair certain
conditions hazardous to his health and safety, and by not
filing certain information with the Maricopa County
Assessor's Office. (Doc. 1.) Like his state court
counterclaims, Plaintiff seeks damages in the amount of $336,
757, allegedly representing his prepaid rent.
have moved to dismiss the complaint both for lack of
subject-matter jurisdiction and for failure to state a claim
upon which relief may be granted. (Doc. 25.) Plaintiff moved
to strike Defendants' motion, but his motion to strike
also responds substantively to Defendants' arguments.
Motion to Strike
to Local Rule of Civil Procedure 7.2(m), “a motion to
strike may be filed only if it is authorized by statute or
rule, . . . or if it seeks to strike any part of a filing or
submission on the ground that it is prohibited (or not
authorized) by a statute, rule, or court order.”
Motions to strike are generally disfavored and rarely
granted. Ordahl v. U.S., 646 F.Supp. 4, 6 (D. Mont.
argues that Defendants' motion violates: (1) Local Rule
12.1(c) because Defendants failed to adequately confer with
him regarding the substance of the motion before filing it;
(2) Federal Rule 12(a)(1)(A) because it was untimely filed;
and (3) Local Rule 7.1(a)(3) because the caption of the
motion lists the parties' names in all capital letters
instead of proper upper and lower case type. Plaintiff's
arguments are not well-taken.
the Court has reviewed the communications appended to
Defendants' reply memorandum and finds that Defendants
adequately attempted to confer with Plaintiff regarding the
substance of their motion to dismiss before filing it.
Second, Defendants' motion to dismiss is timely. The
record shows that Ucomm was served on December 1, 2017. (Doc.
13.) Although nothing in the record shows that Plaintiff
served Zarcal, Defendants jointly moved to dismiss within 21
days of service upon Ucomm. Moreover, Defendants were not
required to file an answer along with their motion to dismiss
because the motion is based, at least in part, on lack of
subject-matter jurisdiction. (Doc. 3 ¶ 5(a).) Finally,
although the Court commends Plaintiff for his meticulous
attention to this District's Local Rules, the Court will
not strike a motion simply because its caption is written in
all capital letters. The Court prefers to resolve cases on
the merits, not on technicalities. For these reasons,
Plaintiff's motion to strike is denied.
Motion to Dismiss
motion to dismiss is based on Rules 12(b)(1) and (b)(6). Rule
12(b)(1) permits a party to raise lack of subject-matter
jurisdiction in a motion to dismiss. Under Rule 12(b)(6), the
Court's task “is to evaluate whether the claims
alleged [plausibly] can be asserted as a matter of
law.” See Adams v. Johnson, 355 F.3d 1179,
1183 (9th Cir. 2004); see also Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009).
with Defendants' jurisdictional argument, the Court is
satisfied that subject-matter jurisdiction exists. This case
is here on diversity. Defendants contend that the Court lacks
subject-matter jurisdiction because the Arizona statutes upon
which Plaintiff's claims are based do not create a
private cause of action and, therefore, the amount in
controversy is $0-far less than the $75, 000 threshold for
diversity jurisdiction. Defendants' argument, however,
requires the Court to make a determination on the merits of
Plaintiff's claim. Stated differently, Defendants argue
that the amount in controversy is $0 because Plaintiff cannot
pursue his damages claims as a matter of law. But this
argument collapses the 12(b)(1) and the 12(b)(6) inquiries.
Plaintiff's complaint seeks damages well in excess of
$75, 000. To the extent Defendants' argument concerning
the amount in controversy requires the Court to pass on the
merits on Plaintiff's claims, the argument is more
appropriately considered under the rubric of Rule 12(b)(6).
on to Rule 12(b)(6), Defendants argue that Plaintiff's
complaint fails to state a claim to relief for four reasons:
(1) the Arizona statutes upon which Plaintiff's claims
are based do not create a private cause of action; (2) these
statutes do not apply to Defendants because they are not the
owners of the property; (3) Plaintiff's claims are
time-barred; and (4) Plaintiff's claims are barred by
claim preclusion. The Court finds that Defendants' final
argument is ...