Valles v. Pima County

• Decision Date: 31 July 2009
• Docket Number: No. CV 08-00009-TUC-FRZ (JCG).,CV 08-00009-TUC-FRZ (JCG).
• Citation: 642 F.Supp.2d 936
• Parties: Armando VALLES, et al., Plaintiffs, v. PIMA COUNTY, et al., Defendants.
• Court: U.S. District Court — District of Arizona

642 F.Supp.2d 936

Armando VALLES, et al., Plaintiffs, v. PIMA COUNTY, et al., Defendants.

No. CV 08-00009-TUC-FRZ (JCG).

United States District Court, D. Arizona.

July 31, 2009.

COPYRIGHT MATERIAL OMITTED

Jane E. Hallinan, Law Offices of Joane E. Hallinan, Norris L. Ganson, Law Office of Norris L. Ganson, Tucson, AZ, for Plaintiffs.

Thomas Weaver, Jr., Lesley Maura Lukach, Neal Allen Eckel, Durazzo & Eckel PC, Tucson, AZ, for Defendants.

ORDER

FRANK R. ZAPATA, District Judge.

Pending before the Court is a Report and Recommendation (Doc. # 173) issued by United States Magistrate Judge Jennifer C. Guerin whereby she recommends granting three motions to dismiss (Doc. #'s 149, 137, 151) for lack of jurisdiction.¹ The Court has reviewed the parties' objections and finds that they do not undermine the sound factual and legal analysis employed by Magistrate Judge Guerin in reaching the correct conclusion that there is no supplemental jurisdiction in this case. As such, the Court need not repeat the detailed factual and legal analysis discussed in the Report and Recommendation. The Court only briefly notes that this case stems, from a failed subdivision whereby the purchasers of lots in the subdivision failed to receive the full value of their property as the defunct subdivision developer did not complete necessary improvements to the land at issue. In their Third Amended Complaint, Plaintiffs allege only state law claims for negligence and misrepresentation against Defendants Parkhurst, Sack and Long Realty, and Mason. Plaintiff argues that the Court should assert supplemental jurisdiction over the state law negligence and misrepresentation claims as they arise from a common nucleus of operative facts with the federal claims asserted against the Pima County defendant. However, as the Report and Recommendation discussed in detail, the Fifth Amendment Takings claim and Fourteenth Amendment Due Process claim asserted against Pima County involve substantially different factual and legal foundations compared to the state law negligence and misrepresentation claims. As such, the Court finds that supplemental jurisdiction is not appropriate in this case as discussed in the Report and Recommendation and therefore rejects Plaintiffs' objections; thus, the Report and Recommendation properly concludes that Defendants Parkhurst, Sack and Long Realty, and Mason should be dismissed without prejudice for lack of jurisdiction.

While on the topic of supplemental jurisdiction, the Court notes that Magistrate Judge Guerin issued a separate Report and Recommendation (Doc. #172) as to Defendants Hosack and Desert Vista Engineering whereby she recommends granting Hosack's and Desert Vista Engineering's motion for summary judgment on the merits based on the economic loss rule. Additionally, the same Report and Recommendation correctly finds that Hosack and Desert Vista Engineering are subject to dismissal as the Court lacks supplemental jurisdiction over these particular Defendants. See Report and Recommendation at 10, n. 5 ("Although Defendants Hosack and Desert Vista did not challenge the Court's subject matter jurisdiction, the Court may consider the issue of subject matter jurisdiction at any time and must dismiss an action if it determines that subject matter jurisdiction is lacking. See Rule 12(h)(3), Fed.R.Civ.P. For the reasons stated in this Report and Recommendation recommending that the District Court grant the motions to dismiss filed by Defendants Parkhurst, Mason, Sack, and Long Realty (Doc. No. 17[3]), Defendants are also entitled to dismissal of Plaintiffs' negligence claims because the Court lacks supplemental jurisdiction over the claim."). Similar to Defendants Parkhurst, Sack and Long Realty, and Mason, the only claim asserted against Hosack and Desert Vista Engineering is a state law claim for negligence. The Fifth Amendment Takings claim and Fourteenth Amendment Due Process claim asserted against Pima County involve substantially different factual and legal foundations compared to the state law negligence claims asserted against Hosack and Desert Vista Engineering; the Court finds that it lacks jurisdiction over the claims asserted against Hosack and Desert Vista Engineering and these parties are therefore dismissed without prejudice.

The Court notes that Defendants Parkhurst and Mason filed very brief objections whereby they summarily argue that they should be dismissed with prejudice based on the merits of their claims pertaining to the economic loss rule and statutes of limitation. However, as the Court has found that supplemental jurisdiction is lacking as to these specific defendants, their objections pertaining to the merits of the underlying case are denied.²

Accordingly, IT IS HEREBY ORDERED as follows:

(1) The Report and Recommendation as to Defendants Parkhurst, Mason, Sack, and Long Realty (Doc. # 173) is accepted and adopted. The Defendants' motions to dismiss (Doc. #'s 149, 137, 151) are granted. Defendants Parkhurst, Sack, Long Realty, and Mason are dismissed from this action without prejudice. The Clerk of the Court shall enter judgment accordingly.

(2) The Report and Recommendation (Doc. # 172) as to Defendants Hosack and Desert Vista Engineering is accepted and adopted to the extent that the Report and Recommendation finds that supplemental jurisdiction is lacking as to Defendants Hosack and Desert Vista Engineering. As such, Defendants Hosack and Desert Vista Engineering are dismissed from this action without prejudice. The Clerk of the Court shall enter judgment accordingly. The motion for summary judgment (Doc. # 152) filed by Defendants Hosack and Desert Vista Engineering is denied as moot as they have been dismissed on the separate ground that the Court lacks jurisdiction over the claims asserted against these Defendants.

(3) As pretrial proceedings still remain in this case, this case is hereby referred back to Magistrate Judge Jennifer C. Guerin for all pretrial proceedings and report and recommendation in accordance with the provisions of 28 U.S.C. § 636(b)(1), Fed. R.Civ.P. 72, and LRCiv 72.1, 72.2, and 72.3 of Rules of Practice of the United States District Court for the District of Arizona.

All future filings in this case shall be designated:

CV 08-9-TUC-FRZ (JCG)

AMENDED REPORT & RECOMMENDATION RE: MOTIONS TO DISMISS BY DEFENDANTS PARKHURST, SACK AND LONG REALTY, AND MASON

JENNIFER C. GUERIN, United States Magistrate Judge.

Three motions are pending before the Court. On November 26, 2008, Defendant Parkhurst Construction, LLC ("Parkhurst") filed a Motion to Dismiss. (Doc. No. 149.) Plaintiffs filed a response on December 10, 2008 (Doc. No. 157) and Defendant timely replied. (Doc. No. 161.)

Defendants Richard A. Sack ("Sack") and Roy H. Long Realty Company, Inc. ("Long Realty") filed a Motion to Dismiss on November 10, 2008. (Doc. No. 137.) Plaintiffs filed a response to the Motion on November 24, 2008 (Doc. No. 147) and Defendants timely replied. (Doc. No. 159.)

Finally, on November 28, 2008, Defendant David A. Mason ("Mason") filed a Motion to Dismiss. (Doc. No. 151.) Plaintiffs filed a response on December 12, 2008 (Doc. No. 160) and supplemented their response on December 18, 2008. (Doc. No. 162.) Defendant Mason timely replied. (Doc. No. 165.)

Pursuant to the Rules of Practice in this Court, these matters were assigned to Magistrate Judge Guerin for a report and recommendation. (Doc. No. 37.) After review, the Magistrate Judge recommends the District Court, after its independent review of the record, enter an order granting Defendants' Motions.

PROCEDURAL BACKGROUND

Plaintiffs initiated this action against fourteen Defendants on January 3, 2008. (Doc. No. 1.) Plaintiffs were granted leave to amend their complaint and filed their First Amended Complaint on March 11, 2008. (Doc. No. 33.) Numerous defendants filed motions to dismiss Plaintiffs' First Amended Complaint. While those motions were pending, the Court granted Plaintiffs leave to file their Second Amended Complaint, which Plaintiffs filed on August 11, 2008. (Doc. Nos. 126, 127.) On August 29, 2008, 2008 WL 4056996, the Court dismissed two Defendants—West Speedway Partners, LLC and The Villas at Hacienda del Sol, Inc. (Doc. No. 130.) On September 8, 2008, the Court dismissed the remaining motions to dismiss as moot in light of the filing of Plaintiffs' Second Amended Complaint. (Doc. No. 133.) The Court further noted that "this case may be streamlined by allowing Plaintiffs to file a Third Amended Complaint." (Id.) Plaintiffs filed their Third Amended Complaint on October 24, 2008. (Doc. No. 136.)

Plaintiffs' Third Amended Complaint alleges claims against Defendants Pima County, Mason, Thomas E. Hosack, P.E. ("Hosack"), Desert Vista Engineering, LLC ("Desert Vista"), Sack and Long Realty. (Doc. No. 136.) Motions to dismiss Plaintiffs' Third Amended Complaint have been filed by Defendants Parkhurst, Mason Sack and Long Realty. (Doc. Nos. 137, 149 and 151.) Defendants Hosack and Desert Vista have filed a Motion for Summary Judgment. (Doc. No. 152.) Defendant Pima County has answered the Third Amended Complaint. (Doc. No. 150.)¹

FACTS RELATING TO DEFENDANT PARKHURST

According to Plaintiffs' Third Amended Complaint, Defendant Parkhurst is an Arizona Limited Liability Company registered by the Registrar of Contractors as a specialty residential contractor for excavating, grading and oil surfacing. (Doc. No. 136, ¶¶ 16, 109.) Parkhurst was engaged in the construction of subdivision improvements for residential properties purchased by Plaintiffs in a subdivision named The Enclave at Gates Pass ("the Enclave"). According to Plaintiffs, Parkhurst failed to construct those improvements in accordance with benchmark elevations set forth in the Final Plat for the Enclave (id. at ¶ 111) and called for the installation of utility lines without an engineer's certification of the grade of the roads and trenches...