McKenzie v. AT & T Services Inc., et al

Filing 31

ORDER signed by District Judge Troy L. Nunley on 2/17/2017 FINDING that the Court lacks subject-matter jurisdiction; GRANTING 19 Motion to Dismiss; DENYING 18 Motion to Consolidate Cases as moot. CASE CLOSED. (Michel, G.)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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KIM MCKENZIE,

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Plaintiff,

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No. 15-cv-02325-TLN-CKD

v.

ORDER

AT&T SERVICES, INC. and PACIFIC
BELL TELEPHONE COMPANY,
Defendants.

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This is a lawsuit petitioning the Court to vacate or modify an arbitration award. The

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matter is before the Court on a motion filed by Defendant Pacific Bell Telephone Company

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(“Pacific Bell”) and Defendant AT&T Services, Inc. (“AT&T”) (collectively “Defendants”) to

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dismiss the case for lack of subject matter jurisdiction. (ECF No. 19.) Plaintiff Kim McKenzie

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(“Plaintiff”) opposes the motion. (ECF No. 24.) For the reasons set forth below, Defendants’

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motion is GRANTED. In addition, Plaintiff’s Motion to Consolidate Cases (ECF No. 18) is

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DENIED as moot.

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I.

BACKGROUND
Although the history of the parties’ dispute is convoluted and contentious, the relevant

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facts are not complicated. Plaintiff filed a petition with the Court seeking to vacate or modify an

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arbitration award pursuant to the Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 10, 11. (ECF No.
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1.) Several months later, she filed an amended petition superseding her original petition. (ECF

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No. 15.) Defendants now move to dismiss the amended petition for lack of subject-matter

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jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. (ECF No. 19.)

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II.

DISCUSSION
The federal courts are courts of limited jurisdiction and possess only that power

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authorized by the Constitution and by statute. Gunn v. Minton, 133 S.Ct. 1059, 1064 (2013)

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(citing Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994)). Defendants assert that no

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statute provides the Court with jurisdiction here. (ECF No. 19-1 at 8:14–10:6.) Defendants are

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correct.

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Plaintiff invokes both diversity and federal-question jurisdiction. Diversity jurisdiction is

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conferred by 28 U.S.C § 1332(a) and exists when there is complete diversity between all plaintiffs

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and all defendants. Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 373 (1978).

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“[D]iversity jurisdiction does not exist unless each defendant is a citizen of a different State from

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each plaintiff.” Id. (emphasis in original). Federal-question jurisdiction is conferred by 28

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U.S.C. § 1331 and exists over “all civil actions arising under the Constitution, laws, or treaties of

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the United States.”

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Plaintiff invokes diversity jurisdiction in a roundabout fashion: on the civil cover sheet

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filed with her original petition. (ECF No. 2.) This is puzzling for two reasons. First, Plaintiff

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asserts diversity jurisdiction only on the civil cover sheet—she does not discuss it in either of her

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petitions or in her opposition to Defendants’ motion to dismiss. (See ECF Nos. 1, 15, 24.)

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Second, Plaintiff herself recognizes that the parties are not completely diverse. On the civil cover

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sheet, Plaintiff indicated that she was a “Citizen of This State” and that at least one defendant

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(whom she does not identify) is “Incorporated or [has its] Principal Place of Business In This

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State.” (ECF No. 2 at 1.) Diversity jurisdiction does not exist where the parties are not

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completely diverse. Owen Equip., 437 U.S. at 373.

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Plaintiff invokes federal-question jurisdiction somewhat more thoroughly, but no more

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successfully. In both her original and amended petitions, Plaintiff asserts federal-question

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jurisdiction pursuant to the FAA. (ECF No. 1 at 6:19–7:6 (citing 9 U.S.C. §§ 10–12); ECF No.
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15 at 5:3–20 (same).) That contention runs contrary to decades of Supreme Court precedent. The

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FAA “creates a body of federal substantive law establishing and regulating the duty to honor an

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agreement to arbitrate, yet it does not create any independent federal-question jurisdiction under

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28 U.S.C. § 1331 . . . or otherwise.” Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460

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U.S. 1, 25 n.32 (1983); see also Southland Corp v. Keating, 465 U.S. 1, 15 n.9 (1984).

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In her opposition, Plaintiff also refers obliquely to the Labor Management Relations Act

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(“LMRA”), 29 U.S.C. §§ 141 et seq., as a possible source of federal-question jurisdiction. (See

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ECF No. 24 at 7:7–10:28.) Specifically, Plaintiff cites authorities in which claims arising under

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§ 301 of the LMRA, 29 U.S.C. § 185, supported federal-question jurisdiction in FAA cases. (See,

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e.g., ECF No. 24 at 7:12–13 (citing Gulf Coast Indus. Workers Union v. Exxon Co., USA, 70 F.3d

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847, 850 (5th Cir. 1995).) But Plaintiff runs afoul of the well-pleaded complaint rule. “The

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presence or absence of federal-question jurisdiction is governed by the ‘well-pleaded complaint

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rule,’ which provides that federal jurisdiction exists only when a federal question is presented on

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the face of the plaintiff's properly pleaded complaint.” Balcorta v. Twentieth Century-Fox Film

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Corp., 208 F.3d 1102, 1106 (9th Cir. 2000) (emphasis added). Plaintiff does not allege in either

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petition that the LMRA applies here. (See ECF No. 1; ECF No. 15.) Nor does Plaintiff allege

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any facts suggesting that she has a claim under § 301 of the LMRA. Section 301 of the LMRA

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“creates a federal cause of action for breach of collective bargaining agreements.” Miller v.

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AT&T Network Sys, 850 F.2d 543, 545 (9th Cir. 1988). Plaintiff does not assert that this case

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involves a collective bargaining agreement to which she was a party, much less a breach of one.

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(See ECF No. 1; ECF No. 15.) In short, the LMRA is inapposite.

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Finally, Plaintiff offers scattershot citations to two other authorities that are not relevant

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here. First, Plaintiff cites Cortez Byrd Chips, Inc. v. Bill Harbert Const. Co., 529 U.S. 193

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(2000), a Supreme Court case about the interplay between the FAA’s venue provision and Title

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28’s general venue provision. (ECF No. 1 at 7:2–5; ECF No. 15 at 5:7–10.) But Plaintiff

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conflates venue and jurisdiction, so her reliance on Cortez Byrd is misplaced. Venue and

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jurisdiction are distinct concepts. See Libby, McNeill, and Libby v. City Nat. Bank, 592 F.2d 504,

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510 (9th Cir. 1978) (“Venue is not jurisdictional.”). Second, Plaintiff cites 28 U.S.C. § 1367,
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which confers supplemental jurisdiction over certain state law claims. (ECF No. 24 at 2:2.) She

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again misses the mark. Supplemental jurisdiction can exist only if the Court already has original

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jurisdiction. 28 U.S.C. § 1367(a). Here, the Court does not have original jurisdiction for the

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reasons discussed supra, so the Court cannot exercise supplemental jurisdiction.

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III.

CONCLUSION

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The Court lacks subject-matter jurisdiction. Consequently, Defendants’ Motion to

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Dismiss (ECF No. 19) is hereby GRANTED. Plaintiff’s Motion to Consolidate Cases (ECF No.

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18) is hereby DENIED as moot.

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IT IS SO ORDERED.
Dated: February 17, 2017

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Troy L. Nunley
United States District Judge

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