United States District Court, D. New Jersey
GEORGE W. BILLINGS, Petitioner,
RICHARD G. OUNJIAN, GEORGE OUINJIAN, and ALICE JAYNE ULSHAFER, jointly, severally, and in the alternative also known as A. JAYNE ULSHAFER, also known as SASSAFRAS HOMES, LLC, Respondents.
W. BILLINGS 339 EIGHTH AVENUE LINDENWOLD, N.J. 08021
Appearing pro se
WILLIAM JOSEPH MARTIN MARTIN, GUNN & MARTIN 216 HADDON
AVENUE - SUITE 420 WESTMONT, N.J. 08108 On behalf of
L. HILLMAN, U.S.D.J.
filed a Motion to Vacate Arbitration Award with this Court.
Before the Court is also Respondents' Motion to Dismiss
for Lack of Jurisdiction. Finding there is no federal
question jurisdiction over this matter, the Court will grant
30, 2004, Petitioner and Respondents entered into the
Sassafras Homes Operating Agreement, which contained an
“Arbitration Agreement.” This Operating Agreement
appears to have governed a limited liability company formed
between Petitioner and Respondents. The underlying dispute
appears to concern the distribution of funds between the
members of the company following a sale of land. The conflict
proceeded through arbitration before former District Judge
Stephen M. Orlofsky.
filed his Motion to Vacate Arbitration Award with the Court
on October 30, 2017. On November 2, 2017, Respondents moved
to dismiss for lack of subject matter jurisdiction. On
November 10, 2017, Respondents further filed a cross-motion
to confirm the arbitration award in the event the Court found
it had jurisdiction.
Rule of Civil Procedure 12(b)(1) permits a court to dismiss a
case for lack of subject matter jurisdiction. There are two
types of motions that fall under Rule 12(b)(1):
“12(b)(1) motions that attack the complaint on its face
and 12(b)(1) motions that attack the existence of subject
matter jurisdiction in fact, quite apart from any
pleadings.” Mortensen v. First Fed. Sav. & Loan
Ass'n, 549 F.2d 884, 891 (3d Cir. 1977).
A facial attack, as the adjective indicates, is an argument
that considers a claim on its face and asserts that it is
insufficient to invoke the subject matter jurisdiction of the
court, because, for example, it does not present a question
of federal law, or because there is no indication of a
diversity of citizenship among the parties, or because some
other jurisdictional defect is present. . . . A factual
attack, on the other hand, is an argument that there is no
subject matter jurisdiction because the facts of the case -
and here the District Court may look beyond the pleadings to
ascertain the facts - do not support the asserted
jurisdiction. . . . In sum, a facial attack “contests
the sufficiency of the pleadings, ” “whereas a
factual attack concerns the actual failure of a
[plaintiff's] claims to comport [factually] with the
Constitution Party of Pa. v. Aichele, 757 F.3d 347,
358 (3d Cir. 2014) (alterations in original) (citations
omitted) (first quoting In re Schering Plough Corp.
Intron, 678 F.3d 235, 243 (3d Cir. 2012); and then
quoting CNA v. United States, 535 F.3d 132, 139 (3d
a facial 12(b)(1) motion. Thus, “the court must only
consider the allegations of the complaint and documents
referenced therein and attached thereto, in the light most
favorable to the plaintiff.” Id. (quoting
In re Schering Plough, 678 F.3d at 243).
The Court applies “the same standard of review it would
use in considering a motion to dismiss under Rule 12(b)(6),
i.e., construing the alleged facts in favor of the
nonmoving party.” Id.
question' jurisdiction may arise in two ways.”
Goldman v. Citigroup Global Mkts., Inc., 834 F.3d
242, 249 (3d Cir. 2016). First, “a case arises under
federal law when federal law creates the cause of action
asserted.” Id. (quoting Gunn v.
Minton, 133 S.Ct. 1059, 1064 (2013)). “However,
even if the cause of action is based on state law, there is a
‘special and small category of cases in which arising
under jurisdiction still lies.'” Id.
(quoting Gunn, 133 S.Ct. at 1064). “[F]ederal
jurisdiction over a state law claim will lie if a federal
issue is (1) necessarily raised, (2) actually disputed, (3)
substantial, and (4) capable of resolution in federal court
without disrupting the federal-state balance approved by
Congress.” Id. ...