Labate v. Casa Grande, City of

Filing 21

ORDER granting 9 Defendant's Motion to Dismiss; denying 12 Plaintiff's Motion to Strike. The Clerk of Court is directed to terminate this action. Signed by Judge G Murray Snow on 11/17/11.(DMT)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Pasquale Labate, Jr.,

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Plaintiff,

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vs.

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City of Casa Grande,
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Defendant.
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No. CV-11-1434-PHX-GMS
ORDER

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Pending before the Court are Defendant’s Motion to Dismiss (Doc. 9) and Plaintiff’s

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Motion to Strike Defendant’s Motion to Dismiss. (Doc. 12). For the reasons stated below,

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Defendant’s motion is granted and Plaintiff’s motion is denied.

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BACKGROUND

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On May 6, 2010, Pasquale Labate Sr., proceeding pro se as “conservator,” sued the

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City of Casa Grande for $50,000 for breach of contract because it charged him for

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demolishing his house after a fire. He claimed that the Director of the City of Casa Grande

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department of public works had offered to demolish the wreckage and clean up the property

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for free. (No. CV-10-988, Doc. 1). The parties agreed to submit to the jurisdiction of a

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magistrate judge, and on June 10, 2010, Magistrate Judge Mark Aspey found that the court

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lacked subject matter jurisdiction over the claim and dismissed it without prejudice. (No. CV-

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10-988, Doc. 6). Labate sought review in the Ninth Circuit Court of Appeals, which

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summarily affirmed Magistrate Judge Aspey’s order on December 30, 2010. (No. CV-10-

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988, Doc. 23).

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On July 11, 2011, Mr. Labate’s son, Plaintiff Pasquale Labate, Jr., re-filed a nearly

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identical complaint, commencing this suit. (Doc. 1). Plaintiff acknowledges that he is “re-

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filing law suit against the City of Casa Grande for 50,000 for fraud and breach of contract

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and for harm done to a minor.” (Doc. 1 at 1). Defendants once again move to dismiss the suit,

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claiming that the statute of limitations has passed, the suit fails to state a claim, and that the

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Court lacks subject-matter jurisdiction. (Doc. 6). Plaintiff has filed both a response and an

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identical “Motion of Strike the Motion to Dismiss and Sanction Against Defense Attorney.”

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(Doc. 11).

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DISCUSSION
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Legal Standard

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Any time that the Court determines, on motion or on its own, that it lacks subject-

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matter jurisdiction to hear a case, it must dismiss the action. FED. R. CIV. P. 12(h)(3). “The

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party asserting jurisdiction has the burden of proving all jurisdictional facts.” Indus.

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Tectonics, Inc. v. Aero Alloy, 912 F.2d 1090, 1092 (9th Cir. 1990) (citing McNutt v. Gen.

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Motors Acceptance Corp., 298 U.S. 178, 189 (1936)).

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Federal jurisdiction is proper in all cases that present a federal question on the face

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of the complaint. 28 U.S.C. § 1331 (2006). In addition, the Court has subject-matter

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jurisdiction to rule on cases in which defendants and plaintiffs are citizens of different states

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and the amount in controversy is greater than $75,000. 28 U.S.C. § 1332 (2006). If any

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plaintiff is a citizen of the same state as any defendant, diversity is not complete, and subject-

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matter jurisdiction fails. See, e.g., Caterpillar, Inc. v. Lewis, 519 U.S. 61, 68 (1996).

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2.

Analysis

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Plaintiff’s complaint contains no statement asserting that federal jurisdiction is proper,

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as required by Rule 8(a). Plaintiff cites no federal law his complaint, stating that the suit is

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for “fraud and breach of contract,” which are ordinarily state law claims. This Court has no

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federal question jurisdiction under 28 U.S.C. § 1331.

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There is no diversity of citizenship between the parties, and even if there were,
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Plaintiff has not claimed an adequate amount in controversy to grant subject-matter

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jurisdiction. Plaintiff does not address the question of his citizenship, but lists his address as

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1534 E. Willetta Street, Phoenix, Arizona, 85006, and states that he is a student at Arizona

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State University. (Doc. 1). Casa Grande, a city located in the state of Arizona, is also a

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citizen of the state of Arizona. Moreover, Plaintiff’s claim is for $50,000, so even if the

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parties were diverse, the amount in controversy requirement would defeat federal

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jurisdiction. (Doc. 1).

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Since the Court has no jurisdiction to hear this case, it would be improper to address

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Defendants’ other arguments, such as that the complaint was filed after the appropriate

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statute of limitations, it fails to state a claim, and it is precluded under the doctrine of res

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judica by the earlier suit. See Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 94-

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95 (1998) (“The requirement that jurisdiction be established as a threshold matter . . . is

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inflexible and without exception.”). The Court has no subject-matter jurisdiction over this

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case, and it is therefore dismissed.

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IT IS THEREFORE ORDERED:

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Defendant’s Motion to Dismiss (Doc. 9) is granted.

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2.

Plaintiff’s Motion to Strike (Doc. 12) is denied.

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3.

The Clerk of Court is directed to terminate this action.

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DATED this 17th day of November, 2011.

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