1 WO KM 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Robert Gonzales, No. CV 21-00726-PHX-MTL (MHB) 10 Plaintiff, 11 v. ORDER 12 City of Peoria, et al., 13 Defendants.
14 15 Pending before the Court is Plaintiff’s May 14, 2021 Motion to Remand to State 16 Court (Doc. 6). The Court will grant the Motion and remand this case to the Maricopa 17 County Superior Court. 18 I. Background 19 On February 20, 2020, Plaintiff Robert Gonzales, who is represented by counsel, 20 filed a civil complaint in the Maricopa County Superior Court raising four state-law tort 21 claims relating to his March 2, 2019 arrest. On June 2, 2020, the parties filed a Stipulation 22 to Dismiss, with prejudice, Counts Two, Three, and Four of the Complaint. On June 5, 23 2020, the state court judge issued an order in accordance with the stipulation. On 24 November 30, 2020, the state court denied Defendant Peoria’s Motion to Dismiss. On 25 December 29, 2020, Defendant Peoria filed an answer to the Complaint. The only 26 remaining claim is Count One, a state-law claim for assault and excessive force against 27 Defendant City of Peoria. 28 . . . . 1 On April 26, 2021, Defendant Peoria filed a Notice of Removal (Doc. 1). On May 2 14, 2021, Plaintiff filed a Motion to Remand to State Court (Doc. 6). On May 27, 2021, 3 Defendant filed a Response (Doc. 8). 4 II. Removal, Motion for Remand, and Response 5 A. Removal 6 On February 26, 2021, Plaintiff filed a related civil rights action pursuant to 42 7 U.S.C. § 1983, Gonzales v. Smith, CV 21-00344-PHX-MTL (MHB). That case raises 8 federal civil rights claims stemming from the same March 2, 2019 arrest at issue in this 9 case. Defendant removed this case on the assertion that because a common nucleus of 10 operative facts exists between Plaintiff’s federal case and state case, this Court has 11 “supplemental jurisdiction of this civil action and the case is removable.” (Doc. 1 at 3.)1 12 Defendant Peoria has also filed, in CV 21-00344-PHX-MTL (MHB), a May 4, 2021 13 Motion to Consolidate Cases, seeking to consolidate this case with CV 21-00344. 14 B. Motion for Remand 15 In his Motion for Remand, Plaintiff argues that an action is only removable if it 16 could have been originally filed in federal court and that the removal statute should be 17 strictly construed against removal. Plaintiff contends the Complaint in this case contains 18 no federal claims and there is no basis for diversity jurisdiction because all parties reside 19 in Arizona. Plaintiff argues that although both this case and CV 21-00344 arise from the 20 same incident, “this does not provide a basis for removal because 28 U.S.C. § 1441(a) 21 requires a basis for federal jurisdiction before the state case may be removed.” 22 C. Response 23 In its Response, Defendant Peoria contends jurisdiction over this case is proper 24 because original jurisdiction exits over Plaintiff’s federal claim and the state and federal 25 claims form the same case or controversy. Defendant argues the removal statute, 28 U.S.C. 26
27 1 Defendant relies on Sea-Land Service, Inc. v. Lozen Intern., LLC, 285 F.3d 808, 814 (9th Cir. 2002) for support of this contention. However, Sea-Land Service examined 28 a District Court’s jurisdiction over the defendant’s state-law counterclaims, it did not examine jurisdiction over state law claims filed in an entirely separate lawsuit in state court. 1 § 1441, must be read in conjunction with the supplemental jurisdiction statute, 28 U.S.C. 2 § 1367, and that Plaintiff waived objection to removal when he purposefully availed 3 himself of this forum by filing federal claims after filing his state court tort claims. 4 Defendant asserts Plaintiff’s federal lawsuit, filed after his state lawsuit, constitutes an 5 “other paper” for purposes of 28 U.S.C. § 1446(b)(3) that renders the state case removable.2 6 Finally, Defendant argues remand should be denied as impermissible forum shopping, 7 because equitable principles support jurisdiction over the state-law claims, and to prevent 8 the risk of an impermissible double recovery. 9 III. Remand 10 Title 28 U.S.C. § 1441 authorizes removal of any civil action brought in the state 11 court over which the federal district courts would have original jurisdiction. “Federal 12 courts are courts of limited jurisdiction” and “possess only that power authorized by 13 Constitution and statute.” Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 14 377 (1994). “It is to be presumed that a cause lies outside this limited jurisdiction” and the 15 burden of establishing jurisdiction is on the party asserting jurisdiction. Id. Limitations 16 on the court’s jurisdiction must neither be disregarded nor evaded. Owen Equip. & 17 Erection Co. v. Kroger, 437 U.S. 365, 374 (1978). The Court is obligated to determine 18 whether it has subject matter jurisdiction. See Valdez v. Allstate Ins. Co., 372 F.3d 1115, 19 1116 (9th Cir. 2004); see also 28 U.S.C. § 1447(c) (“If at any time before final judgment
20 2 Defendant does not provide support for this contention. Section 1446(c)(3) 21 provides: 22 Except as provided in subsection (c), if the case stated by the initial pleading is not removable, a notice of removal 23 may be filed within 30 days after receipt by the defendant, through service or otherwise, of a copy of an amended 24 pleading, motion, ordered or other paper from which it may first be ascertained that the case is one which is or has become 25 removable. 26 Generally, the “order or other paper” requirement of § 1446(b) applies only to documents generated within the state court litigation. See Rose v. Beverly Health & 27 Rehabilitation Services, Inc,. 2006 WL 2067060, *5 (E.D. Cal. 2006). Further, the “other paper” requirement pertains to the timing of removal, it does not create a separate basis for 28 removal. Even if Plaintiff had filed his federal lawsuit within the original 30-day removal period, removal of the state case would be improper. 1 it appears that the district court lacks subject matter jurisdiction, the case shall be 2 remanded.”); Fed. R. Civ. P. 12(h)(3) (“If the court determines at any time that it lacks 3 subject-matter jurisdiction, the court must dismiss the action.”). 4 “The removal statute is strictly construed against removal jurisdiction.” California 5 ex rel. Lockyer v. Dynegy, Inc., 375 F.3d 831, 838 (9th Cir. 2004) (emphasis added). The 6 party invoking the statute bears the burden of establishing federal jurisdiction. Id. “Federal 7 jurisdiction must be rejected if there is any doubt as to the right of removal in the first 8 instance.” Gaus v. Miles, Inc.,
Free access — add to your briefcase to read the full text and ask questions with AI
1 WO KM 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Robert Gonzales, No. CV 21-00726-PHX-MTL (MHB) 10 Plaintiff, 11 v. ORDER 12 City of Peoria, et al., 13 Defendants.
14 15 Pending before the Court is Plaintiff’s May 14, 2021 Motion to Remand to State 16 Court (Doc. 6). The Court will grant the Motion and remand this case to the Maricopa 17 County Superior Court. 18 I. Background 19 On February 20, 2020, Plaintiff Robert Gonzales, who is represented by counsel, 20 filed a civil complaint in the Maricopa County Superior Court raising four state-law tort 21 claims relating to his March 2, 2019 arrest. On June 2, 2020, the parties filed a Stipulation 22 to Dismiss, with prejudice, Counts Two, Three, and Four of the Complaint. On June 5, 23 2020, the state court judge issued an order in accordance with the stipulation. On 24 November 30, 2020, the state court denied Defendant Peoria’s Motion to Dismiss. On 25 December 29, 2020, Defendant Peoria filed an answer to the Complaint. The only 26 remaining claim is Count One, a state-law claim for assault and excessive force against 27 Defendant City of Peoria. 28 . . . . 1 On April 26, 2021, Defendant Peoria filed a Notice of Removal (Doc. 1). On May 2 14, 2021, Plaintiff filed a Motion to Remand to State Court (Doc. 6). On May 27, 2021, 3 Defendant filed a Response (Doc. 8). 4 II. Removal, Motion for Remand, and Response 5 A. Removal 6 On February 26, 2021, Plaintiff filed a related civil rights action pursuant to 42 7 U.S.C. § 1983, Gonzales v. Smith, CV 21-00344-PHX-MTL (MHB). That case raises 8 federal civil rights claims stemming from the same March 2, 2019 arrest at issue in this 9 case. Defendant removed this case on the assertion that because a common nucleus of 10 operative facts exists between Plaintiff’s federal case and state case, this Court has 11 “supplemental jurisdiction of this civil action and the case is removable.” (Doc. 1 at 3.)1 12 Defendant Peoria has also filed, in CV 21-00344-PHX-MTL (MHB), a May 4, 2021 13 Motion to Consolidate Cases, seeking to consolidate this case with CV 21-00344. 14 B. Motion for Remand 15 In his Motion for Remand, Plaintiff argues that an action is only removable if it 16 could have been originally filed in federal court and that the removal statute should be 17 strictly construed against removal. Plaintiff contends the Complaint in this case contains 18 no federal claims and there is no basis for diversity jurisdiction because all parties reside 19 in Arizona. Plaintiff argues that although both this case and CV 21-00344 arise from the 20 same incident, “this does not provide a basis for removal because 28 U.S.C. § 1441(a) 21 requires a basis for federal jurisdiction before the state case may be removed.” 22 C. Response 23 In its Response, Defendant Peoria contends jurisdiction over this case is proper 24 because original jurisdiction exits over Plaintiff’s federal claim and the state and federal 25 claims form the same case or controversy. Defendant argues the removal statute, 28 U.S.C. 26
27 1 Defendant relies on Sea-Land Service, Inc. v. Lozen Intern., LLC, 285 F.3d 808, 814 (9th Cir. 2002) for support of this contention. However, Sea-Land Service examined 28 a District Court’s jurisdiction over the defendant’s state-law counterclaims, it did not examine jurisdiction over state law claims filed in an entirely separate lawsuit in state court. 1 § 1441, must be read in conjunction with the supplemental jurisdiction statute, 28 U.S.C. 2 § 1367, and that Plaintiff waived objection to removal when he purposefully availed 3 himself of this forum by filing federal claims after filing his state court tort claims. 4 Defendant asserts Plaintiff’s federal lawsuit, filed after his state lawsuit, constitutes an 5 “other paper” for purposes of 28 U.S.C. § 1446(b)(3) that renders the state case removable.2 6 Finally, Defendant argues remand should be denied as impermissible forum shopping, 7 because equitable principles support jurisdiction over the state-law claims, and to prevent 8 the risk of an impermissible double recovery. 9 III. Remand 10 Title 28 U.S.C. § 1441 authorizes removal of any civil action brought in the state 11 court over which the federal district courts would have original jurisdiction. “Federal 12 courts are courts of limited jurisdiction” and “possess only that power authorized by 13 Constitution and statute.” Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 14 377 (1994). “It is to be presumed that a cause lies outside this limited jurisdiction” and the 15 burden of establishing jurisdiction is on the party asserting jurisdiction. Id. Limitations 16 on the court’s jurisdiction must neither be disregarded nor evaded. Owen Equip. & 17 Erection Co. v. Kroger, 437 U.S. 365, 374 (1978). The Court is obligated to determine 18 whether it has subject matter jurisdiction. See Valdez v. Allstate Ins. Co., 372 F.3d 1115, 19 1116 (9th Cir. 2004); see also 28 U.S.C. § 1447(c) (“If at any time before final judgment
20 2 Defendant does not provide support for this contention. Section 1446(c)(3) 21 provides: 22 Except as provided in subsection (c), if the case stated by the initial pleading is not removable, a notice of removal 23 may be filed within 30 days after receipt by the defendant, through service or otherwise, of a copy of an amended 24 pleading, motion, ordered or other paper from which it may first be ascertained that the case is one which is or has become 25 removable. 26 Generally, the “order or other paper” requirement of § 1446(b) applies only to documents generated within the state court litigation. See Rose v. Beverly Health & 27 Rehabilitation Services, Inc,. 2006 WL 2067060, *5 (E.D. Cal. 2006). Further, the “other paper” requirement pertains to the timing of removal, it does not create a separate basis for 28 removal. Even if Plaintiff had filed his federal lawsuit within the original 30-day removal period, removal of the state case would be improper. 1 it appears that the district court lacks subject matter jurisdiction, the case shall be 2 remanded.”); Fed. R. Civ. P. 12(h)(3) (“If the court determines at any time that it lacks 3 subject-matter jurisdiction, the court must dismiss the action.”). 4 “The removal statute is strictly construed against removal jurisdiction.” California 5 ex rel. Lockyer v. Dynegy, Inc., 375 F.3d 831, 838 (9th Cir. 2004) (emphasis added). The 6 party invoking the statute bears the burden of establishing federal jurisdiction. Id. “Federal 7 jurisdiction must be rejected if there is any doubt as to the right of removal in the first 8 instance.” Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). 9 In this case, Defendant’s arguments in support of removal center on its contentions 10 that because Plaintiff’s federal claims in CV 21-00344 are based on the same incident that 11 form the basis for his state tort claims, the removal statute should be read in conjunction 12 with the supplemental jurisdiction statute to permit removal. However, supplemental 13 jurisdiction does not provide a basis for removal. See Syngenta Crop Protection, Inc. v. 14 Henson, 537 U.S. 28, 34 (2002) (“Ancillary jurisdiction . . . cannot provide the original 15 jurisdiction that petitioners must show in order to qualify for removal under § 1441”); 16 Ahearn v. Charter Township of Bloomfield, 100 F.3d 451, 456 (6th Cir. 1996) (“the 17 supplemental jurisdiction statute is not a source of original subject-matter jurisdiction . . ., 18 and a removal petition therefore may not base subject-matter jurisdiction on the 19 supplemental-jurisdiction statute” (citations omitted)); Hawaii v. Abbott Labs., Inc., 469 F. 20 Supp. 2d 835, 838 (D. Haw. 2006) (same); see also Parker v. Crete Carrier Corp., 914 F. 21 Supp. 156, 159 (E.D.Ky. 1996) (citing Estate of Tabas, 879 F. Supp. 464, 467 (E.D.Pa. 22 1995)) (“Supplemental jurisdiction cannot destroy the requirement for complete diversity 23 . . . even if the action which a defendant seeks to remove is related to another action over 24 which the federal district court already has subject-matter jurisdiction . . . and even if 25 removal would be efficient.”). 26 “Supplemental jurisdiction must be exercised in the same action that furnishes the 27 basis for exercise of supplemental jurisdiction.” Ortolf v. Silver Bar Mines, Inc., 111 F.3d 28 85, 86 (9th Cir. 1997) (emphasis added). “The phrases ‘in any civil action’ and ‘in the 1 action,’” as used in § 1367, “require that supplemental jurisdiction be exercised in the same 2 case, not a separate or subsequent case.” Id. at 87 (emphasis added). “In a subsequent 3 lawsuit involving claims with no independent basis for jurisdiction, a federal court lacks 4 the threshold jurisdictional power that exists when ancillary claims are asserted in the same 5 proceeding as the claims conferring federal jurisdiction.” Peacock v. Thomas, 516 U.S. 6 349, 355 (1996). “Consequently, claims alleged to be factually interdependent with, and, 7 hence, ancillary to claims brought in an earlier federal lawsuit will not support federal 8 jurisdiction over a subsequent lawsuit.” Id. 9 The only remaining claim in this case is that a City of Peoria police officer allegedly 10 violated Arizona Revised Statutes § 13-3881(B) when the officer physically accosted 11 Plaintiff in a manner which exceeded the minimal amount of force reasonably necessary to 12 accomplish lawful purpose, and the City of Peoria is liable for that officer’s conduct under 13 the principle of respondeat superior. (See Doc. 1-3 at 6-7.) Plaintiff’s claim relies solely 14 on state law. The Court does not have original jurisdiction over this claim and Plaintiff 15 could not have originally filed the claim in this Court. Accordingly, Defendant has failed 16 to meet its burden of establishing federal jurisdiction over this case and the Court will grant 17 the Motion for Remand. Because motions to consolidate are decided in the case with the 18 lowest case number, see Local Rule of Civil Procedure 42.1(b), the Court will address the 19 motion to consolidate in a separate order in CV 21-00344. 20 IT IS ORDERED: 21 (1) Plaintiff’s Motion for Remand (Doc. 6) is granted. 22 (2) This matter is remanded to the Superior Court of Maricopa County, Arizona. 23 (3) The Clerk of Court must mail a certified copy of this Order to:
24 Jeff Fine 25 Clerk of the Superior Court Maricopa County, Arizona Superior Court 26 201 West Jefferson 27 Phoenix, Arizona 85003-2205. 28 . . . . 1 (4) The Clerk of Court must close this federal case. 2 Dated this 10th day of June, 2021. 3 Mi chal T. Shunde Michael T. Liburdi 6 United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28