Sacco v. APS Electric Company et al

Filing 14

ORDER: IT IS ORDERED that APS's motion to dismiss (Doc. 10 ) is denied without prejudice [see attached Order for details]. Signed by Judge Dominic W Lanza on 11/17/20. (MAW)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Gaetano N. Sacco,
Plaintiff,

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ORDER

v.

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No. CV-20-01306-PHX-DWL

APS Electric Company, et al.,

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Defendants.

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In his complaint in this action, pro se Plaintiff Gaetano N Sacco (“Plaintiff”) asserts

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claims against two defendants: the City of Phoenix (“the City”) and Arizona Public Service

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Company (“APS”) (together, “Defendants”). (Doc. 1 ¶¶ 6-7.) The first claim, which is

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asserted only against the City, is a federal claim under 42 U.S.C. § 1983 for deprivation of

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civil rights. (Id. ¶¶ 17-24.) The remaining four claims, which are asserted against both

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Defendants, are state-law claims. (Id. ¶¶ 25-51.) It appears that all five claims arise from

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the same common nucleus of operative fact—specifically, alleged efforts by Defendants to

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shut off the power at Plaintiff’s property. (Id. ¶¶ 1, 8-14.) The complaint alleges that the

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Court has “[s]upplemental jurisdiction over Plaintiffs’ state law claims . . . pursuant to 28

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U.S.C. § 1367.” (Id. ¶ 3.)

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Now pending before the Court is APS’s motion to dismiss pursuant to Rule 12(b)(1)

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of the Federal Rules of Civil Procedure. (Doc. 10.) APS asserts that the claims against it

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“must be dismissed” for lack of subject-matter jurisdiction because Plaintiff’s sole federal

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claim is asserted against the City. (Id.)

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Although APS’s motion is not yet fully briefed, the Court will deny it without

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requiring pro se Plaintiff to file a response. APS cites no case law for the proposition that

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the Court cannot exercise supplemental jurisdiction over state-law claims asserted against

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one defendant where the only federal claims in the case are asserted against a co-defendant.

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The only legal authority identified in APS’s motion for this proposition is 28 U.S.C. §

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1367, but subdivision (a) of the statute specifically recognizes that “supplemental

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jurisdiction shall include claims that involve the joinder . . . of additional parties.” As the

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Ninth Circuit has recognized, “[s]upplemental jurisdiction is constitutional so long as the

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pendent state law claim is part of the same ‘case or controversy’ as the federal claim.

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Nonfederal claims are part of the same ‘case’ as federal claims when they derive from a

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common nucleus of operative fact and are such that a plaintiff would ordinarily be expected

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to try them in one judicial proceeding.” Trustees of Construction Industry & Laborers

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Health & Welfare Trust v. Desert Valley Landscape & Maintenance, Inc., 333 F.3d 923,

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925 (9th Cir. 2003) (citations and internal quotation marks omitted). Thus, so long as the

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state-law claims against one defendant “constitute part of the same constitutional case as

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the federal . . . claims against” a co-defendant, “the district court has the power to exercise

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supplemental jurisdiction.” Mendoza v. Zirkle Fruit Co., 301 F.3d 1163, 1174 (9th Cir.

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2002).

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Here, APS doesn’t argue that Plaintiff’s state-law claims against it somehow arise

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from a different nucleus of operative fact than Plaintiff’s § 1983 claim against the City.

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Nor does APS argue that the Court should decline to exercise supplemental jurisdiction

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over Plaintiff’s state-law claims as a matter of discretion. Instead, APS’s sole dismissal

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argument is that federal courts categorically lack subject-matter jurisdiction over state-law

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claims asserted against one defendant when the only federal claim in the case is asserted

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against a co-defendant. That argument is simply not accurate.

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jurisdictional analysis may change in the future, depending on the resolution of Plaintiff’s

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§ 1983 claim against the City,1 APS is not presently entitled to dismissal based on the

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Thus, although the

If that claim were dismissed, the Court might very well decline to exercise
supplemental jurisdiction over the remaining state-law claims at that juncture. See, e.g.,
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grounds identified in its motion.

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Accordingly,

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IT IS ORDERED that APS’s motion to dismiss (Doc. 10) is denied without

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prejudice.
Dated this 17th day of November, 2020.

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Shooter v. Arizona, 2019 WL 2410808, *7-8 (D. Ariz. 2019).
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