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WO

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

John Kohler Marsh, 

Plaintiff, 

v. 

Zarcal Res Tempe LLC, et al., 

Defendants. 

No. CV-17-04057-PHX-DLR 

ORDER 

 Before the Court are Defendants Zarcal Res Tempe LLC (“Zarcal”) and Ucomm 

LLC’s (“Ucomm”) motion to dismiss (Doc. 15), and Plaintiff John Marsh’s motion to 

strike (Doc. 20). Neither party requested oral argument. For the following reasons, 

Defendants’ motion to dismiss is granted and Plaintiff’s motion to strike is denied. 

I. Background 

 Plaintiff formerly leased residential property from Defendants. In 2017, 

Defendants filed a state court eviction action against Plaintiff after he defaulted on his 

rent.1

 In the context of that eviction action, Plaintiff raised several affirmative 

defenses/counterclaims, including that Defendants violated Arizona law by failing to 

make certain requested repairs that Plaintiff claimed materially affected his health and 

safety, and by failing to file certain information with the Maricopa County Assessor’s 

 1

 The Court may take judicial notice of the state court eviction action and the 

filings therein. See Fed. R. Civ. P. 201; Lee v. City of L.A., 250 F.3d 668, 689 (9th Cir. 

2001). 
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office. (Doc. 15-3.) Plaintiff’s requested relief on his counterclaims included $336,757, 

allegedly representing “all prepaid rent since [he] took possession” of the property. (Id.

at 7.) On October 3, 2017, the Maricopa County Superior Court found Plaintiff guilty 

and entered judgment in favor of Defendants for possession of the property and for 

$36,493.11 in unpaid rent, late fees, and other charges. (Doc. 15-2.) Plaintiff did not 

appeal that judgment. 

 Instead, one month later Plaintiff filed this lawsuit. His complaint alleges claims 

that are materially identical to his affirmative defenses/counterclaims in the state court 

eviction action. Plaintiff once again complains that Defendants violated Arizona law by 

failing to repair certain conditions hazardous to his health and safety, and by not filing 

certain information with the Maricopa County Assessor’s Office. (Doc. 1.) Like his state 

court counterclaims, Plaintiff seeks damages in the amount of $336,757, allegedly 

representing his prepaid rent. 

 Defendants have moved to dismiss the complaint both for lack of subject-matter 

jurisdiction and for failure to state a claim upon which relief may be granted. (Doc. 25.) 

Plaintiff moved to strike Defendants’ motion, but his motion to strike also responds 

substantively to Defendants’ arguments. (Doc. 20.) 

II. Motion to Strike 

Pursuant to Local Rule of Civil Procedure 7.2(m), “a motion to strike may be filed 

only if it is authorized by statute or rule, . . . or if it seeks to strike any part of a filing or 

submission on the ground that it is prohibited (or not authorized) by a statute, rule, or 

court order.” Motions to strike are generally disfavored and rarely granted. Ordahl v. 

U.S., 646 F. Supp. 4, 6 (D. Mont. 1985). 

 Plaintiff argues that Defendants’ motion violates: (1) Local Rule 12.1(c) because 

Defendants failed to adequately confer with him regarding the substance of the motion 

before filing it; (2) Federal Rule 12(a)(1)(A) because it was untimely filed; and (3) Local 

Rule 7.1(a)(3) because the caption of the motion lists the parties’ names in all capital 
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letters instead of proper upper and lower case type.2 Plaintiff’s arguments are not welltaken. 

 First, the Court has reviewed the communications appended to Defendants’ reply 

memorandum and finds that Defendants adequately attempted to confer with Plaintiff 

regarding the substance of their motion to dismiss before filing it. Second, Defendants’ 

motion to dismiss is timely. The record shows that Ucomm was served on December 1, 

2017. (Doc. 13.) Although nothing in the record shows that Plaintiff served Zarcal, 

Defendants jointly moved to dismiss within 21 days of service upon Ucomm. Moreover, 

Defendants were not required to file an answer along with their motion to dismiss 

because the motion is based, at least in part, on lack of subject-matter jurisdiction. (Doc. 

3 ¶ 5(a).) Finally, although the Court commends Plaintiff for his meticulous attention to 

this District’s Local Rules, the Court will not strike a motion simply because its caption is 

written in all capital letters. The Court prefers to resolve cases on the merits, not on 

technicalities. For these reasons, Plaintiff’s motion to strike is denied. 

III. Motion to Dismiss

 Defendants’ motion to dismiss is based on Rules 12(b)(1) and (b)(6). Rule 

12(b)(1) permits a party to raise lack of subject-matter jurisdiction in a motion to dismiss. 

Under Rule 12(b)(6), the Court’s task “is to evaluate whether the claims alleged 

[plausibly] can be asserted as a matter of law.” See Adams v. Johnson, 355 F.3d 1179, 

1183 (9th Cir. 2004); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 

 Beginning with Defendants’ jurisdictional argument, the Court is satisfied that 

subject-matter jurisdiction exists. This case is here on diversity. Defendants contend that 

the Court lacks subject-matter jurisdiction because the Arizona statutes upon which 

Plaintiff’s claims are based do not create a private cause of action and, therefore, the 

amount in controversy is $0—far less than the $75,000 threshold for diversity 

 2

 Plaintiff also argues that Defendants “assert a defense that is not warranted by existing law.” (Doc. 20 at 3.) Plaintiff’s criticism of the substance of Defendants’ 

motion, however, is not a reason to strike the motion. Instead, the Court has considered 

these critiques as a response to the merits of the motion to dismiss. 
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jurisdiction. Defendants’ argument, however, requires the Court to make a determination 

on the merits of Plaintiff’s claim. Stated differently, Defendants argue that the amount in 

controversy is $0 because Plaintiff cannot pursue his damages claims as a matter of law. 

But this argument collapses the 12(b)(1) and the 12(b)(6) inquiries. Plaintiff’s complaint 

seeks damages well in excess of $75,000. To the extent Defendants’ argument 

concerning the amount in controversy requires the Court to pass on the merits on 

Plaintiff’s claims, the argument is more appropriately considered under the rubric of Rule 

12(b)(6). 

 Moving on to Rule 12(b)(6), Defendants argue that Plaintiff’s complaint fails to 

state a claim to relief for four reasons: (1) the Arizona statutes upon which Plaintiff’s 

claims are based do not create a private cause of action; (2) these statutes do not apply to 

Defendants because they are not the owners of the property; (3) Plaintiff’s claims are 

time-barred; and (4) Plaintiff’s claims are barred by claim preclusion. The Court finds 

that Defendants’ final argument is dispositive and, therefore, declines to unnecessarily 

opine on the proper interpretation of Arizona law or the timeliness of Plaintiff’s claims. 

 “[U]nder the doctrine of res judicata, a judgment on the merits in a prior suit 

involving the same parties or their privies bars a second suit based on the same cause of 

action. The doctrine of res judicata binds the same parties standing in the same capacity 

in the subsequent litigation on the same cause of action, not only upon the facts actually 

litigated, but also upon those points which might have been (even though not expressly) 

litigated.” Aldrich and Steinberger v. Martin, 837 P.2d 1180, 1183 (Ariz. Ct. App. 1992) 

(internal quotations and citations omitted). Here, Plaintiff and Defendants both were 

parties to a prior state court eviction action. Plaintiff raised these same claims as 

affirmative defenses/counterclaims in the context of that litigation. The state court found 

Plaintiff guilty and awarded damages to Defendants. In doing so, the state court 

necessarily rejected Plaintiff’s affirmative defenses/counterclaims, as the judgment 

included no offsets for Plaintiff’s alleged prepaid rent. Plaintiff chose not to appeal that 

judgment. He cannot now re-litigate those affirmative defenses/counterclaims in the 
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context of a new, federal lawsuit. Defendants’ motion to dismiss therefore is granted 

because Plaintiff’s claims are precluded by the state court eviction judgment. 

IT IS ORDERED that Plaintiff’s motion to strike (Doc. 20) is DENIED and 

Defendants’ motion to dismiss (Doc. 15) is GRANTED. The Clerk of the Court shall 

terminate this case.

 Dated this 6th day of September, 2018. 

Douglas L. Rayes 

United States District Judge