Spung v. Rodriquez

Filing 73

MEMORANDUM AND ORDER: The Court lacks subject-matter jurisdiction over this case and must therefore dismiss it. Defendant Joseph Paco James Rodriguez's motion to dismiss, Filing No. 32 , is granted and this case is dismissed for lack of s ubject matter jurisdiction; The remaining filings, Filing No. 28 (Spung's motion for default); Filing No. 50 (Spung's motion for summary judgment); Filing No. 57 (Spung's motion to exclude); Filing No. 58 (Spung's mot ion for leave to amend sur-reply); Filing No. 59 (Rodriguez's motion to quash subpoena); Filing No. 60 (Rodriguez's motion to strike); Filing No. 64 (Spung's motion for leave to respond with motion in limine); Filing No. 71 (Spung's motion to compel discovery), are denied as moot; and The Court will enter a separate judgment. Ordered by Senior Judge Joseph F. Bataillon. (ADB)

8:22-cv-00043-JFB-SMB Doc # 73 Filed: 05/09/22 Page 1 of 7 - Page ID # 278

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
GREGORY L. SPUNG,
Plaintiff,

8:22CV43

vs.
MEMORANDUM AND ORDER
JOSEPH PACO JAMES RODRIQUEZ,
Defendant.
This matter comes before the Court on defendant Joseph Paco James Rodriguez’s
motion to dismiss plaintiff Gregory L. Spung’s second amended complaint for lack of
subject-matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1). Filing No. 32. The Court
finds it lacks subject-matter jurisdiction and dismisses the case for the reasons set forth
herein. Consequently, the remaining pending motions are denied as moot. See Filing
No. 28 (Spung’s motion for default); Filing No. 50 (Spung’s motion for summary
judgment); Filing No. 57 (Spung’s motion to exclude); Filing No. 58 (Spung’s motion for
leave to amend sur-reply); Filing No. 59 (Rodriguez’s motion to quash subpoena); Filing
No. 60 (Rodriguez’s motion to strike); Filing No. 64 (Spung’s motion for leave to respond
with motion in limine); Filing No. 71 (Spung’s motion to compel discovery).
I.

BACKGROUND
Spung filed suit against Rodriguez invoking diversity jurisdiction. Filing No. 1 at 3;

Filing No. 4 at 3. His complaint, and a subsequent amended complaint, sought, in part,
$200,000 in punitive damages. Filing No. 4 at 5. Rodriguez moved to dismiss for lack of
subject-matter jurisdiction, arguing Nebraska law did not allow punitive damages, and
without this amount, Spung failed to allege a sufficient amount in controversy. Filing No.

1

8:22-cv-00043-JFB-SMB Doc # 73 Filed: 05/09/22 Page 2 of 7 - Page ID # 279

10; Filing No. 11 at 1–2. In response, Spung sought, and was granted, leave to file a
second amended complaint which omitted the punitive-damages claim and expanded
Spung’s claim for other damages. Filing No. 27; Filing No. 12.
Spung’s second amended complaint alleges that in October 2021, he stated to
Rodriguez, “It seems like the elites are trying to exterminate the blacks.” Filing No. 12 at
5. Spung claims Rodriguez then reported to their joint employer, Future Foam, that Spung
also made statements like, “The Black Lives Matter Movement is Killing the Country” and
“Black people are destroying the country and all black people in high office need to be
gone.” Filing No. 12 at 6. Spung denies making the latter statements and asserts Future
Foam fired him as a result of Rodriguez reporting these false statements. Filing No. 12
at 5. Spung seeks $128,000 in damages from Rodriguez consisting of $30,000 in lost
income and $98,000 for pain and suffering. Filing No. 12 at 4. As to lost income, Spung
asserts his gross pay at Future Foam was $840 per week and “28 weeks have elapsed
since my employment was terminated,” resulting in $23,520 in lost income “plus overtime,
insurance, 401k, vacation and holiday pay.” Filing No. 12 at 4. As to pain and suffering,
Spung alleges he “ha[s] been under long term care of medical professionals” for
“emotional trauma, PTSD and it’s [sic] negative impact on my mental and emotional well
being [sic].” Filing No. 12 at 4. He therefore seeks “damages for pain and suffering at
the rate of $500 per diem for 28 weeks.” Filing No. 12 at 4.
II.

ANALYSIS
Rodriguez moves to dismiss Spung’s second amended complaint for lack of

subject-matter jurisdiction. Filing No. 32. In support of his motion, Rodriguez submits his
own declaration in which he generally asserts Spung did, in fact, make racists statements

2

8:22-cv-00043-JFB-SMB Doc # 73 Filed: 05/09/22 Page 3 of 7 - Page ID # 280

which Rodriguez truthfully reported to Future Foam. Filing No. 34-1 at 1–2. In response,
Spung submits a declaration acknowledging discussing “sociopolitical issues” at work and
making the statement regarding the “elites . . . trying to exterminate the blacks” but
denying making any further statements regarding race. Filing No. 40-1 at 1–2.
A. Standard of Review for Motion to Dismiss for Lack of Subject-Matter
Jurisdiction Under Fed. R. Civ. P. 12(b)(1)
For the court to dismiss for lack of subject matter jurisdiction under Federal Rule
of Civil Procedure 12(b)(1), the complaint must be successfully challenged either on its
face or on the factual truthfulness of its averments. Titus v. Sullivan, 4 F.3d 590, 593 (8th
Cir. 1993). In a facial challenge to jurisdiction, all of the factual allegations regarding
jurisdiction are presumed true and the motion can succeed only if the plaintiff has failed
to allege an element necessary for subject matter jurisdiction. Gebhardt v. ConAgra
Foods, Inc., 335 F.3d 824, 829 (8th Cir. 2003); Mattes v. ABC Plastics, Inc., 323 F.3d
695, 697 (8th Cir. 2003) (noting that facial attack on the pleading under Rule 12(b)(1) is
subject to the same standard as a motion brought under Rule 12(b)(6)). In contrast, in a
factual attack on subject-matter jurisdiction, the court is “free to weigh the evidence and
satisfy itself as to the existence of its power to hear the case” and no presumptive
truthfulness attaches to the plaintiff’s allegations Osborn v. United States, 918 F.2d 724,
729 (8th Cir. 1990). The plaintiff has the burden of proving that jurisdiction exists by a
preponderance of evidence. See Kopp v. Kopp, 280 F.3d 883, 885 (8th Cir. 2002). Here,
Rodriguez raises a factual challenge to Spung’s second amended complaint, and the
Court thus considers and weighs the evidence the parties submit.

3

8:22-cv-00043-JFB-SMB Doc # 73 Filed: 05/09/22 Page 4 of 7 - Page ID # 281

B. Diversity Jurisdiction
Spung asserts this Court has jurisdiction over the case because he and Rodriguez
are citizens of different states and the amount in controversy exceeds $75,000. Filing
No. 12 at 4; Filing No. 47 at 2. Rodriguez does not contest that he and Spung are citizens
of different states but argues there is insufficient evidence that the amount in controversy
exceeds $75,000. Filing No. 33 at 5–8.
The Court has “original jurisdiction of all civil actions where the matter in
controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is
between . . . citizens of different States.”

28 U.S.C. § 1332(a)(1); accord Ryan v.

Schneider Nat’l Carriers, Inc., 263 F.3d 816, 819 (8th Cir. 2001). “[W]hen a federal
complaint alleges a sufficient amount in controversy to establish diversity jurisdiction, but
the opposing party or the court questions whether the amount alleged is legitimate, the
party invoking federal jurisdiction must prove the requisite amount by a preponderance of
the evidence.” State of Mo. ex rel. Pemiscot Cnty. v. W. Sur. Co., 51 F.3d 170, 173 (8th
Cir. 1995).
Spung has failed to meet his burden of proving this Court has subject-matter
jurisdiction by a preponderance of the evidence. In particular, he has submitted no
evidence to substantiate his claim of $128,000 in damages to reach the amount-incontroversy threshold for diversity jurisdiction. Spung alleges in his second amended
complaint that he has lost $840 in weekly income for twenty-eight weeks “plus overtime,
insurance, 401k, vacation and holiday pay.” Filing No. 12 at 4. He further claims he is
entitled to damages for pain and suffering in the amount of “$500 per diem for 28 weeks.”
Filing No. 12 at 4. However, Spung submits no affidavits or documentary evidence to

4

8:22-cv-00043-JFB-SMB Doc # 73 Filed: 05/09/22 Page 5 of 7 - Page ID # 282

support the amount of his lost wages or to support that he has suffered $500 in daily
damages for pain and suffering. The parties’ declarations focus solely on whether Spung
actually made the racist statements which Rodriguez reported to Future Foam and
contain no evidence relating to the amount of damages. See Filing No. 34-1 at 1–2; Filing
No. 40-1 at 1–2. Additionally, even if his claims were supported by evidence, Spung
alleges only generally that he “ha[s] been under long term care of medical professionals”
for “emotional trauma, PTSD and it’s [sic] negative impact on my mental and emotional
well being [sic]” but he does not tie this need for medical care and mental suffering to
Rodriguez’s supposed defamation, his firing from Future Foam, or this case. Filing No.
12 at 4. Spung’s unsubstantiated allegations of damages which he fails to tie to the facts
of this case are therefore insufficient to meet the amount-in-controversy threshold for
purposes of diversity jurisdiction.

Accord McElroy v. Banc of Am. Inv. Servs., No.

406CV3178, 2007 WL 2021830, at *2 (D. Neb. May 31, 2007) (dismissing case for lack
of subject-matter jurisdiction based on diversity because the plaintiff “provided no facts to
support the allegations of loss” where the plaintiff claimed the defendant bank had
improperly converted funds in his brokerage accounts but “did not identify specific
transactions, dates, or losses, and he did not submit any statements to demonstrate the
amount of decline in his accounts over the relevant time”).
C. Federal-Question Jurisdiction
Spung also asserts the Court has jurisdiction over his second amended complaint
based on his assertion of a federal question.
complaint asserting federal-question jurisdiction).

5

Filing No. 12 at 3 (second amended

8:22-cv-00043-JFB-SMB Doc # 73 Filed: 05/09/22 Page 6 of 7 - Page ID # 283

The Court has “original jurisdiction of all civil actions arising under the Constitution,
laws, or treaties of the United States.” 28 U.S.C. § 1331. The U.S. Supreme Court has
held that exercising federal-question jurisdiction is appropriate where “a well-pleaded
complaint establishes either that federal law creates the cause of action or that the
plaintiff’s right to relief necessarily depends on resolution of a s ubstantial question of
federal law.” Empire Healthchoice Assur., Inc. v. McVeigh, 547 U.S. 677, 690 (2006)
(quoting Franchise Tax Bd. of Cal. v. Construction Laborers Vacation Trust for S. Cal.,
463 U.S. 1, 27–28 (1983)).
Spung alleges federal-question jurisdiction under 28 U.S.C. § 4101. That statute,
in part, provides a definition of “defamation.” See 28 U.S.C. § 4101(1). However, this
definitional section is a part of a broader statutory scheme prohibiting a domestic court
from enforcing a foreign judgment for defamation unless certain prerequisites are met.
See 28 U.S.C. § 4102 (relating to the “[r]ecognition of foreign defamation judgments”). It
does not provide a separate federal cause of action. See, e.g., Knight v. Chatelain, No.
8:19CV206, 2019 WL 2464789, at *3 (D. Neb. June 13, 2019) (finding § 4101 “has no
possible application here, either as the predicate for a § 1983 action or on its own” for
purposes of establishing federal-question jurisdiction), aff’d, 798 F. App’x 971 (8th Cir.
2020). Accordingly, the Courts finds there is no federal-question jurisdiction over Spung’s
claims.
III.

CONCLUSION
The Court lacks subject-matter jurisdiction over this case and must therefore

dismiss it.

6

8:22-cv-00043-JFB-SMB Doc # 73 Filed: 05/09/22 Page 7 of 7 - Page ID # 284

IT IS ORDERED:
1. Defendant Joseph Paco James Rodriguez’s motion to dismiss, Filing No. 32,
is granted and this case is dismissed for lack of subject matter jurisdiction;
2. The remaining filings, Filing No. 28 (Spung’s motion for default); Filing No. 50
(Spung’s motion for summary judgment); Filing No. 57 (Spung’s motion to
exclude); Filing No. 58 (Spung’s motion for leave to amend sur-reply); Filing
No. 59 (Rodriguez’s motion to quash subpoena); Filing No. 60 (Rodriguez’s
motion to strike); Filing No. 64 (Spung’s motion for leave to respond with motion
in limine); Filing No. 71 (Spung’s motion to compel discovery), are denied as
moot; and
3. The Court will enter a separate judgment.

Dated this 9th day of May, 2022.
BY THE COURT:
s/ Joseph F. Bataillon
Senior United States District Judge

7