United States of America v. Cuesta

Filing 43

ORDER: Defendant Abe Cuesta's Motion to Dismiss Plaintiff's Complaint Pursuant to Fed. R. Civ. P. 12 (B)(1) 39 is DENIED. Cuesta is directed to file an answer to Plaintiff's Complaint on or before December 8, 2014. Signed by Judge Virginia M. Hernandez Covington on 11/24/2014. (KBT)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
v.

Case No. 8:14-cv-995-T-33TGW

ABE CUESTA, A/K/A ABRAM CUESTA,
D/B/A QUALITY CATTLE,
Defendant.
________________________________/
ORDER
This cause is before the Court pursuant to Defendant Abe
Cuesta’s Motion to Dismiss Plaintiff’s Complaint Pursuant to
Fed. R. Civ. P. 12 (b)(1), filed on November 5, 2014. (Doc.
# 39). Plaintiff United States of America filed a response in
opposition thereto on November 18, 2014. (Doc. # 42). For the
foregoing reasons, the Court denies the Motion.
I.

Background
The

United

Agriculture,

States,

initiated

on
this

behalf
action

of
on

the

Secretary

April

25,

of

2014,

alleging violations of the Packers and Stockyard Act of 1921
(the Act), as amended, 7 U.S.C. §§ 181 et seq. (Doc. # 1). In
particular, the United States asserts that Cuesta violated
the Act by failing to timely file his 2009 Annual Report of
Dealer or Market Agency (Count I), 7 U.S.C. § 222 and 9 C.F.R.

§ 201.97, and for continuing to operate as a dealer with an
expired registration (Count II), 7 U.S.C. § 203. On November
5, 2014, Cuesta filed the present Motion to Dismiss pursuant
to Fed. R. Civ. P. 12(b)(1) 1 (Doc. # 39), which is now ripe
for the Court’s review.
II.

Legal Standard
Federal

courts

are

courts

of

limited

jurisdiction.

“[B]ecause a federal court is powerless to act beyond its
statutory grant of subject matter jurisdiction, a court must
zealously insure that jurisdiction exists over a case, and
should

itself

raise

the

question

of

subject

matter

jurisdiction at any point in the litigation where a doubt
about jurisdiction arises.” Smith v. GTE Corp., 236 F.3d 1292,
1299 (11th Cir. 2001).
Motions

to

dismiss

for

lack

of

subject

matter

jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1) may attack
jurisdiction facially or factually.

Morrison v. Amway Corp.,

323

Cir.

F.3d

920,

924

n.5

(11th

2003).

When

the

jurisdictional attack is factual, the Court may look outside

1

The Court notes that Cuesta filed the present Motion
pursuant to Fed. R. Civ. P. 12(b)(1). Accordingly, the Court
limits its analysis to this issue and declines to construe
Cuesta’s Motion as asserting issues that pertain to Fed. R.
Civ. P. 12(b)(6).
2

the four corners of the complaint to determine if jurisdiction
exists.

Eaton v. Dorchester Dev., Inc., 692 F.2d 727, 732

(11th Cir. 1982). In a factual attack, the presumption of
truthfulness afforded to a plaintiff under Fed. R. Civ. P.
12(b)(6) does not attach. Scarfo v. Ginsberg, 175 F.3d 957,
960 (11th Cir. 1999)(citing Lawrence v. Dunbar, 919 F.2d 1525,
1529 (11th Cir. 1990)). Because the very power of the Court
to hear the case is at issue in a Rule 12(b)(1) motion, the
Court is free to weigh evidence outside the complaint. Eaton,
692 F.2d at 732.
III. Analysis
The Packers and Stockyard Act regulates the conduct of
packers,

swine

owners,

market

dealers,
agencies,

live
and

poultry

dealers,

dealers,

stockyard

imposing

certain

affirmative requirements on these entities and proscribing
certain conduct by them. See 7 U.S.C. §§ 181 et seq. The Grain
Inspection,

Packers

and

Stockyards

Administration

of

the

United States Department of Agriculture (USDA) is responsible
for administering and enforcing the Act, and investigating
unfair and anti-competitive practices in these markets.
By

way

of

the

present

Motion,

Cuesta

argues

that

“Plaintiff fails to establish that [he] falls within the
3

jurisdiction of the Act, making any violations of the Act
inapplicable

and

therefore

moot.”

(Doc.

#

39

at

6).

Specifically, Cuesta contends that: (1) “he does not act in
the stream of commerce” and (2) he “does not meet any of the
statutory definitions of a person or entity covered by the
Act.”

(Id.

at

6-7).

Cuesta

supports

his

Motion

with

an

affidavit explaining that he “did not know [he] was required
to obtain a bond because [he is] a subsistence farmer and not
a commercial farmer.” (Doc. 39-1 at 2).
In response, the United States points out that, in his
most recent submission to the USDA in 2009, Cuesta indicated
that he purchased over $50,000 of livestock “on a dealer
basis.” (Doc. # 42 at 8; Doc. # 42-1). On January 26, 2007,
the agency registered Cuesta as a dealer and assigned him a
registration number. (Id.). The United States avers that
Cuesta has provided no evidence to suggest that his activities
have changed. (Id.). Further, irrespective of his economic
activity,

Cuesta’s

buying

and

selling

of

livestock

at

stockyards constitutes activity subject to regulation under
the Act. (Id. at 10-11).
Under the Act, a “dealer” is “any person . . . engaged
in the business of buying or selling in commerce livestock,
4

either on his account or as the employee or agent of the
vendor or purchaser.” 7 U.S.C. § 201. With regards to the “in
commerce” component, the statute sets forth the following:
[A] transaction in respect to any article shall be
considered to be in commerce if such an article is
part of that current of commerce usual in the livestock and meat-packing industries, whereby live
stock . . . are sent from one State with the
expectation that they will end their transit, after
purchase, in another including, in addition to
cases within the above general description, all
cases where purchase or sale is either for shipment
to another State, or for slaughter of live within
the State and the shipment outside the State of the
products resulting from such slaughter.
7 U.S.C. § 183.
Upon due consideration, the Court finds that the United
States has sufficiently alleged that Cuesta and his actions
are subject to regulation under the Act. Therefore, the Court
denies Cuesta’s Motion as this Court has subject matter
jurisdiction over the present action.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
(1)

Defendant Abe Cuesta’s Motion to Dismiss Plaintiff’s
Complaint Pursuant to Fed. R. Civ. P. 12 (B)(1) (Doc. #
39) is DENIED.

(2)

Cuesta is directed to file an answer to Plaintiff’s
Complaint on or before December 8, 2014.
5

DONE and ORDERED in Chambers in Tampa, Florida, this
24th day of November, 2014.

Copies: All Counsel of Record

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