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Billings v. Ounjian

United States District Court, D. New Jersey

April 20, 2018

GEORGE W. BILLINGS, Petitioner,
v.
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.

          GEORGE 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 Respondents

          OPINION

          NOEL L. HILLMAN, U.S.D.J.

         Petitioner 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 Respondents' motion.

         I.

         On July 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.

         Petitioner 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.

         II.

         Federal 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 jurisdictional prerequisites.”

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 Cir. 2008)).

         This is 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.

         III.

         “'[F]ederal 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. ...


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