Greater US Services Incorporated et al v. Mary J Gower Revocable Trust Dated November 18, 1999 et al

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Greater US Services Incorporated, et al.,
Plaintiffs,
v.
Mary J Gower Revocable Trust Dated
November 18, 1999, et al.,
Defendants.
No. CV-25-01412-PHX-MTL
ORDER
The Court has considered the Motion to Dismiss filed by Defendant Trustee of the
Mary J. Gower Revocable Trust Dated November 18, 1999 (Doc. 39), Plaintiff Scott
Kissner’s opposition brief (Doc. 41), and the Reply brief (Doc. 43).1 Neither party requests
oral argument. The Court finds that the issues are suitable for determination on the briefs.
See LRCiv 7.2(f).
I.
The parties are familiar with the facts and an extensive explanation of the events
giving rise to this case is unnecessary. In short, the Complaint alleges that Plaintiff
performed clerical and administrative services to Defendant the Mary J. Gower Revocable
Trust Dated November 18, 1999 (the “Trust”), helping to arrange the sale of real property.
The parties had an agreement whereby Plaintiff would be compensated, but the Trust
1 The Court does not consider Plaintiff’s sur-reply (Doc. 45), as sur-replies are not
permitted without the Court’s leave, and Plaintiff did not seek or obtain such leave before
filing the sur-reply. See Bond v. Comm’r of Soc. Sec. Admin., No. CV-19-04933-PHX-
JAT, 2020 WL 2615970, at *1 n.1 (D. Ariz. May 20, 2020) (“Surreplies are not permitted
in the District of Arizona without the court’s approval.”).
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refused to pay the amount due.
II.
Federal courts are courts of limited jurisdiction. The party invoking the federal
court’s subject matter jurisdiction has the burden of establishing the propriety of exercising
that jurisdiction. W. States Trucking Ass’n v. Schoorl, 377 F. Supp. 3d 1056, 1064 (E.D.
Cal. 2019). When a defendant argues that the claims in the complaint, even if true, cannot
establish subject matter jurisdiction, the challenge is a facial one. See Safe Air for Everyone
v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). The Court observes that, for the purposes
of a motion to dismiss, the well-pleaded allegations of the complaint must be taken as true.
Witzke v. Idaho State Bar, 643 F. Supp. 3d 1093, 1109 (D. Idaho 2022). Additionally, the
Court will construe the Complaint liberally, as Plaintiff is an unrepresented party. See
Rupert v. Bond, 68 F. Supp. 3d 1142, 1153 (N.D. Cal. 2014).
III.
A.
Plaintiff attempts to invoke this Court’s subject matter jurisdiction by asserting
federal question jurisdiction under the Fair Labor Standards Act, 29 U.S.C. § 201, et seq.
(“FLSA”). (Doc. 1 at 6 ¶¶ 12-15.) See 28 U.S.C. § 1331 (federal question jurisdiction).
The FLSA establishes a federal minimum wage and other wage and hour laws. The
Complaint does not assert a claim for relief under the FLSA, despite there being a private
right of action for wage and hour violations. See 29 U.S.C. § 216(b). Although Plaintiff
references the FLSA in the Complaint (see, e.g., Doc. 1 at 1; id. at 6 ¶¶ 13-15), mere
reference to a federal statute is insufficient to invoke this Court’s federal question
jurisdiction. See Emrit v. Horus Music Video Distrib., Civ. No. 20-00007 JMS-RT, 2020
WL 1822597, at *2 (D. Haw. Apr. 10, 2020) (“[A]lthough the Complaint suggests that this
action arises under federal copyright law, it explicitly asserts only state-law claims . . . .
Merely referencing federal copyright law is insufficient to establish federal question
jurisdiction.” (quotation marks omitted)); Yadav-Ranjan v. Quality Loan Serv. Corp., No.
16-cv-07344-BLF, 2016 WL 7475619, at *2 (N.D. Cal. Dec. 29, 2016) (“[M]ere reference
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of federal statutes is insufficient to support a federal question jurisdiction.”); Pelloni v. WE:
Women’s Ent. Network, No. CV 08-05612-GPS (AGRx), 2008 WL 4501845, at *4 (C.D.
Cal. Oct. 5, 2008) (“The mere factual allegation that Defendants violated RICO is not
enough to raise a federal question unless ruling on Defendants[’] claims requires a
determination of whether there was such a violation. . . . Simply mentioning a federal
statute in a complaint is not enough to create federal question jurisdiction.”). To the extent
Plaintiff invokes the FLSA as an alternative basis for determining that Defendants have
breached the relevant contract or committed fraud, this also cannot create federal question
jurisdiction. See Rains v. Criterion Sys., Inc., 80 F.3d 339, 346 (9th Cir. 1996) (“When a
claim can be supported by alternative and independent theories—one of which is a state
law theory and one of which is a federal law theory—federal question jurisdiction does not
attach because federal law is not a necessary element of the claim.”). The Court’s
jurisdiction cannot be based on the FLSA. All the Complaint’s claims for relief—breach
of contract variants and fraud—arise under Arizona common law. By seeking to cure the
deficiencies in the Complaint by asserting a claim under the FLSA, Plaintiff concedes that
the Complaint has not pled such a claim. (See Doc. 22 at 3-4; Doc. 22-1 at 40-44 (proposed
new FLSA claim).) The Court therefore finds that federal question jurisdiction does not
exist.
Nor can Plaintiff amend the Complaint to assert a claim under the FLSA. The FLSA
applies to employees, not independent contractors. Murray v. Playmaker Servs., LLC, 512
F. Supp. 2d 1273, 1276 (S.D. Fla. 2007). In the Complaint, Plaintiff alleges that his
relationship with Defendants was governed by an independent contractor agreement. (Doc.
1 at 7 ¶ 17 (“Scott W. Kissner, Independent Contractor . . . provided Independent
Contractor Services . . . .”).) Also, the alleged (unexecuted) agreement between the parties,
attached to the Complaint as Exhibit A, identifies Plaintiff as a “contractor” rather than an
employee. (Doc. 1-1 at 2-3.) Although the question of whether Plaintiff was an employee
for purposes of the FLSA is not jurisdictional, see Tijerino v. Stetson Desert Project, LLC,
934 F.3d 968, 972-75 (9th Cir. 2019), the Court may nevertheless deny Plaintiff leave to
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amend his failure to properly assert the FLSA if amendment would be futile, as it would
be here, for the reasons explained below. See Section IV, infra.
B.
In the absence of a federal claim, federal courts still have subject matter jurisdiction
when complete diversity exists between the parties and the amount in controversy exceeds
$75,000. 28 U.S.C. § 1332(a). The Complaint does not raise diversity jurisdiction as a basis
for subject matter jurisdiction. Defendant raises this issue in its Motion, so the Court will
address it briefly.
The Ninth Circuit has summarized a plaintiff’s obligation to plead all the elements
of diversity jurisdiction in the complaint:
The party seeking to invoke the district court’s diversity
jurisdiction always bears the burden of both pleading and
proving diversity jurisdiction. When a plaintiff originally files
in federal court, as [Plaintiff] did here, the amount in
controversy is determined from the face of the pleadings.
Therefore, the essential elements of diversity jurisdiction must
be affirmatively alleged in the pleadings.
Rainero v. Archon Corp., 844 F.3d 832, 840 (9th Cir. 2016) (citation modified).
The Court agrees with Defendant that the Complaint fails to satisfy the amount-in-
controversy requirement for diversity jurisdiction. The Complaint alleges that Plaintiff’s
damages are “at least $10,537.50.” (Doc. 1 at 5 ¶ 4, 17 ¶ 25, 20 ¶ 39, 21 ¶ 51, 22 ¶ 56; see
also Doc. 1-3 at 67, 1-4 at 1-2 (claiming in Arizona Industrial Commission unpaid wage
claim that total amount owed is $10,537.50); Doc. 1-4 at 77 (lien claim for $10,537.50).)
This is well below the threshold. Even if this amount were trebled as unpaid wages under
A.R.S. § 25-355(a) (although Plaintiff does not assert such a claim in the Complaint),
$31,612.50 would still fail to satisfy the minimum amount. Any facts that could support an
amount beyond that number not pleaded in the Complaint. Speculative damages amounts
are not entitled to any weight. Matheson v. Progressive Specialty Ins. Co., 319 F.3d 1089,
1090-91 (9th Cir. 2003) (per curiam) (“Conclusory allegations as to the amount in
controversy are insufficient.”). That the Complaint alleges that Plaintiff’s damages are “at
least $10,537.50” therefore does not suffice. Id. at 1091 (“The complaint seeks ‘in excess’
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of $10,000 . . . but how much ‘in excess’ is not explained.”). Finally, the Complaint’s
prayer for punitive damages does not satisfy the amount-in-controversy requirement
because it, too, is based on speculation. See Burk v. Med. Sav. Ins. Co., 348 F. Supp. 2d
1063, 1069-70 (D. Ariz. 2004).
For these reasons, the Court finds that the Complaint fails to plead the existence of
diversity jurisdiction.
IV.
“Under 28 U.S.C. § 1653, [courts] have the authority to grant leave to amend a
complaint in order to cure defective allegations of jurisdiction.” Rosenwald v. Kimberly-
Clark Corp., 152 F.4th 1167, 1177 (9th Cir. 2025) (citation omitted). “If it is at all possible
to determine from the record that jurisdiction does in fact exist, the interest in avoiding the
needless expenditure of judicial resources weighs in favor of amendment.” Id. (citation
modified). But subject matter jurisdiction must nevertheless “exist as of the time the action
is commenced.” Morongo Band of Mission Indians v. Cal. State Bd. of Equalization, 858
F.2d 1376, 1380 (9th Cir. 1988). And § 1653 “provides a remedy for defective allegations
only; it does not provide a remedy for defective jurisdiction itself.” Id. at 1380 n.3
(quotation marks omitted); see also Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826,
832 (1989) (declining to reject the “longstanding interpretation” of § 1653 that it allows
courts “to remedy inadequate jurisdictional allegations, but not defective jurisdictional
facts”). “If jurisdiction [is] lacking,” even an order granting leave to amend the complaint
is a nullity. Morongo Band of Mission Indians, 858 F.2d at 1381.
The Court in its discretion will permit Plaintiff to amend his complaint on a limited
basis. See PHI Aviation LLC v. Precision Heli-Support LLC, No. CV-24-03448-PHX-
MTL, 2025 WL 224152, at *2 (D. Ariz. Jan. 17, 2025) (“While . . . a defective allegation
of jurisdiction can be amended in certain instances . . . leave to amend is discretionary.”).
Plaintiff may not amend his complaint to assert a FLSA claim because, as the Court
explained, Plaintiff alleged in the Complaint that his contractual relationship was that of
an independent contractor. In the proposed amended pleading filed with Plaintiff’s motion
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for leave to amend, he sometimes alleges that his relationship was not that of an
independent contractor (Doc. 22-1 at 18-20), but Plaintiff is not permitted to “contradict[]
any of the allegations of his original complaint”; rather, “the amended complaint may only
allege other facts consistent with the challenged pleading,” Reddy v. Litton Indus., Inc.,
912 F.2d 291, 296-97 (9th Cir. 1990) (quotation marks omitted).2 Because Plaintiff could
not amend the Complaint to allege, contrary to his original complaint, that he was not
subject to an independent contractor agreement, he cannot amend the Complaint to assert
a FLSA claim to cure his failure to plead federal question jurisdiction. Cf. Williams v. Lew,
819 F.3d 466, 471 (D.C. Cir. 2016) (denying request to amend under § 1653 because
amendment would be futile due to the failure to plausibly allege standing). He also cannot
substitute other federal causes of action to cure this defect. See Boelens v. Redman Homes,
Inc., 759 F.2d 504, 512 (5th Cir. 1985) (“[T]he plaintiffs’ motion to amend seeks not to
remedy technically inadequate jurisdictional allegations, but rather to substitute new causes
of action over which there would be jurisdiction. Because § 1653 is limited to curing
technical defects only, the plaintiffs’ motion to amend under that section must be denied.”);
Sundby v. Landau, No. 2:24-CV-05790-MCS-BFM, 2024 WL 3588528, at *1 (C.D. Cal.
July 29, 2024) (“Plaintiffs’ pleading of a new federal claim under RICO . . . does not suffice
to confer federal-question jurisdiction over the action as originally filed—that is, a
complaint without any federal claims.”); see also Schubarth v. Federal Republic of
Germany, No. 14-cv-2140 (CRC), 2021 WL 7889662, at *9 (D.D.C. Jan. 25, 2021)
(rejecting plaintiff’s attempt to “make new substantive allegations” that would “establish
jurisdiction over [the defendant] under a new theory that was neither explicitly nor
implicitly mentioned in the original complaint”).
The Court will give Plaintiff an opportunity to plead diversity jurisdiction if he can
plausibly do so. See Corporacion Venezolana de Fomento v. Vintero Sales Corp., 477 F.
Supp. 615, 619 (S.D.N.Y. 1979) (permitting a plaintiff leave to amend the complaint to
2 The Court notes that allegations in the proposed amended complaint are themselves
contradictory. The proposed amended complaint continues to allege that Plaintiff
“provided Independent Contractor Services” (see Doc. 22-1 at 12), but then alleges that
Plaintiff was properly considered an hourly employee (see id. at 18-20).
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“allege different bases of subject matter jurisdiction . . . if it is shown that jurisdiction
exists”). The Court is skeptical that Plaintiff will be able to allege sufficient damages to
meet the amount-in-controversy requirement for diversity jurisdiction without
contradicting the factual allegations in and exhibits attached to the Complaint. But because
of the interests favoring amendment if “jurisdiction does in fact exist,” the Court will give
Plaintiff the ability to allege diversity jurisdiction (if it in fact exists). Rosenwald, 152 F.4th
at 1177 (citation omitted). Plaintiff is reminded that any amended pleading is subject to
Rule 11. See Fed. R. Civ. P. 11(b).
In light of the Court’s conclusion that it lacks subject matter jurisdiction at this time
and the Court’s uncertainty that Plaintiff can plausibly allege diversity jurisdiction, all
pending motions will be denied as moot. If the amended complaint plausibly alleges
diversity jurisdiction, the parties may renew motions that they deem appropriate once the
Court assures itself of its jurisdiction.
IT IS THEREFORE ORDERED that the Motion to Dismiss (Doc. 39) is
GRANTED. The Complaint (Doc. 1) is dismissed for lack of subject matter jurisdiction.
IT IS FURTHER ORDERED that Plaintiff may file an amended complaint within
14 days of this Order. If Plaintiff fails to file a timely amended complaint, the Clerk of
Court must dismiss this case without prejudice and enter judgment accordingly without
further notice.
IT IS FINALLY ORDERED that all other pending motions are denied as moot.
Dated this 6th day of May, 2026.
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