Miner v. Phoenix, City of

• Court: District Court, D. Arizona
• Decided: May 26, 2022
• Docket: 2:22-cv-00828
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Kimberly Miner, No. CV-22-00828-PHX-SMB (MTM)

10 Plaintiff, ORDER

11 v.

12 City of Phoenix,

13 Defendant. 14 15 Pending before the Court is Plaintiff’s Emergency Motion to Remand for Lack of 16 Subject Matter Jurisdiction. (Doc. 5.) Defendant, City of Phoenix, filed a Response. (Doc. 17 7.) The Court has considered the parties briefing and relevant law and will grant Plaintiff’s 18 Motion to Remand. 19 Plaintiff filed her Complaint in Maricopa County Superior Court (the “Superior 20 Court”) against the City of Phoenix on May 13, 2021, alleging state law claims of 21 negligence and gross negligence. (Doc. 1-1 at 5.) On May 11, 2022, the parties filed a 22 stipulation with the Superior Court in which the parties stipulated to Plaintiff filing an 23 amended complaint which would add two additional defendants and federal claims against 24 all defendants. (Doc. 5 at 1.) The stipulation also would allow the City of Phoenix to 25 remove the case to federal court. However, on May 12, 2022, the City of Phoenix removed 26 the case to this Court before the stipulation was granted by the Superior Court and before 27 Plaintiff’s amended complaint was filed. (Doc. 5 at 1.) Thus, the amended complaint was 28 not the operative complaint in the case when the case was removed to this Court. 1 A defendant may file a notice of removal within 30 days after the receipt of a copy 2 of the initial pleading setting forth the claim for relief upon which such action or 3 proceeding is based, or within 30 days after the service of summons upon the 4 defendant if such initial pleading has then been filed in court and is not required to be served on defendant, whichever period is shorter. 5

6 28 U.S.C. §1446(b). “If at any time before final judgment it appears that the district court 7 lack subject matter jurisdiction, the case shall be remanded.” 28 U.S.C. § 1447(c). “[T]he 8 majority of courts have taken the position that the 30 day period commences upon either 9 the granting of the motion to amend or the actual filing of the amended complaint.” Fesko 10 v. Equiant Fin. Servs. Inc., No. CV-19-01366-PHX-DWL, 2019 WL 1915617, at *2 (D. 11 Ariz. Apr. 30, 2019) (quoting Douklias v. Teacher’s Ins. & Annuity Ass’n, 35 F. Supp. 2d 12 612, 615 (W.D. Tenn. 1999)). In Fesko, the court remanded the case to state court because 13 the defendant removed the case before the state court had ruled on plaintiff’s pending 14 motion for leave to amend the complaint to add federal claims. Id. at 1. The court reasoned 15 that, under 28 U.S.C. § 1446(b)(3), the right to removal is triggered only if a document 16 demonstrates “that the case is one which is or has become removable.” Id. at 2 (emphasis 17 added). The motion for leave to file an amended complaint only showed that the case 18 might become removable in the future. Id. 19 Here, the case was not removable because the parties’ stipulation did not show that 20 the was removable. Instead, it merely showed that the case might become removable if the 21 Superior Court granted the stipulation and if Plaintiff actually did file an amended 22 complaint containing federal claims. Without an operative complaint containing federal 23 claims, the Court does not yet have subject matter jurisdiction to hear this case. 24 Accordingly, the case must be remanded to the Superior Court. The Court will decline to 25 award Plaintiff attorney’s fees. 26 /// 27 /// 28 /// 2 3 IT IS ORDERED granting Plaintiff's Motion to Remand. (Doc. 5.) 4 IT IS FURTHER ORDERED directing the Clerk of Court to remand this case to 5 || Maricopa County Superior Court and close this case. 6 Dated this 26th day of May, 2022. 7 ———> 8 _ — fe > fonorable Susan M, Brnovich 10 United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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