Doe BP v. Tempe, City of ( 2021 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Jane Doe BP, No. CV-21-00184-PHX-MTL 10 Plaintiff, ORDER 11 v. 12 City of Tempe, et al., 13 Defendants. 14 15 Before the Court is Plaintiff Jane Doe BP’s Motion to Remand (the “Motion”) 16 (Doc. 15). Defendant County of Mohave filed a response.1 (Doc. 26.) Plaintiff did not file 17 a reply and the deadline to do so has expired. For the reasons stated below, the Court 18 grants the Motion.2 19 I. BACKGROUND 20 The following factual summary derives from the Complaint. (Doc. 1-3.) Plaintiff 21 alleges that around thirty years ago, when she was a minor, Defendant Kraig Clark 22 sexually assaulted her on multiple occasions while he was a deputy sheriff. (Id. at 5–7.) 23 Plaintiff also alleges that Defendants City of Tempe, County of Mohave, State of 24 Arizona, and Kelly Michelson (collectively, “Defendants”) knew or should have know of 25 Clark’s “dangerous propensities, including the propensity to commit sexual assaults upon 26 1 Defendants City of Tempe, State of Arizona, and Kelly Michelson joined this response. 27 (Docs. 29, 31.) 2 Both parties have submitted legal memoranda and oral argument would not have aided 28 the Court’s decisional process. See Partridge v. Reich, 141 F.3d 920, 926 (9th Cir. 1998); see also LRCiv 7.2(f); Fed. R. Civ. P. 78(b). 1 minors and/or of prior sexual abuse and misconduct.” (Id. at 8.) 2 After filing this lawsuit in Arizona Superior Court, the City of Tempe removed the 3 action to this Court, asserting that there is original jurisdiction “pursuant to 28 U.S.C. 4 § 1331.”3 (Doc. 1.) Plaintiff’s Complaint asserts nine causes of actions: (1) assault and 5 battery against Clark, (2) negligent infliction of emotional distress against Clark, 6 (3) vicarious liability against the County of Mohave, (4) negligence against the County of 7 Mohave, (5) negligence against the City of Tempe, (6) negligence against the State of 8 Arizona and Michelson, (7) a 42 U.S.C. § 1983 claim against Clark for violation of the 9 Fourteenth Amendment’s Due Process Clause, (8) a 42 U.S.C. § 1983 claim against 10 Clark for excessive force, and (9) a “Monell Federal Civil Rights Claims Under 42 U.S.C. 11 § 1983” against all Defendants except Clark. (Doc. 1-3.) The removal included the state- 12 law claims set forth in the Complaint based on supplemental jurisdiction, 28 U.S.C. 13 § 1367(a). (Doc. 1.) 14 Plaintiff then filed a Notice of Partial Dismissal of Counts Seven, Eight, and 15 Nine.4 (Doc. 18.) She also filed the instant Motion at the same time. (Doc. 15.) Plaintiff 16 contends that, because she filed a notice dismissing all federal claims, the Court lacks 17 subject-matter jurisdiction and the case should be remanded. (Id.) County of Mohave 18 filed a Motion to Strike Plaintiff’s notice, contending that dismissing those claims was 19 procedurally improper. (Doc. 19.) Defendants soon thereafter filed their own respective 20 motion to dismiss or motion for judgment on the pleadings. (Docs. 23, 27, 30, 35.) 21 II. LEGAL STANDARD 22 District courts have subject matter jurisdiction over claims that “arise under the 23 Constitution, laws, or treaties of the United States” or over “civil actions where the matter 24 in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is 25 between” diverse parties. 28 U.S.C. §§ 1331, 1332. Where a court has original 26 jurisdiction over at least one claim, the court also has “supplemental jurisdiction over all 27 3 The other Defendants consented to the removal. (Doc. 1 ¶ 4.) 28 4 Plaintiff notes that she “erroneously” filed this notice as a motion, and subsequently re- filed the notice “under the appropriate event.” (Docs. 14, 17.) 1 other claims that are so related to claims in the action within such original jurisdiction 2 that they form part of the same case or controversy.” Id. § 1367(a). Litigation initiated in 3 a state court that includes a cause of action arising under federal law is subject to removal 4 to federal court. Id. § 1441(c)(1)(A). 5 Our judicial system recognizes, however, that “[s]tate courts enjoy a ‘deeply 6 rooted presumption’ that they have jurisdiction to adjudicate all claims arising under state 7 or federal law.” Hansen v. Grp. Health Coop., 902 F.3d 1051, 1056 (9th Cir. 2018). On a 8 motion for remand, therefore, this Court is to presume that federal jurisdiction does not 9 exist. Id. The burden is on the removing party to rebut this presumption and prove the 10 existence of subject-matter jurisdiction. Id. at 1057. “If at any time before final judgment 11 it appears that the district court lacks subject matter jurisdiction, the case shall be 12 remanded.” 28 U.S.C. § 1447(c). 13 III. DISCUSSION 14 A. Voluntary Dismissal 15 Plaintiff filed her Notice of Voluntary Dismissal under Rule 41(a)(1)(A)(i) of the 16 Federal Rules of Civil Procedure. (Doc. 18.) This notice purported to dismiss the three 17 federal claims. (Id.) The six state-law claims remain. (Id.) Defendants contend that 18 Plaintiff cannot, and did not successfully, dismiss her three federal claims through Rule 19 41(a)(1). (See Doc. 26 at 34; Doc. 19.) The Court partially agrees with Defendants. 20 Generally, “the plaintiff may dismiss an action without a court order by filing a 21 notice of dismissal before the opposing party serves either an answer or a motion for 22 summary judgment.” Fed. R. Civ. P. 41(a)(1)(A)(i). As Plaintiff overlooks, this rule 23 allows dismissal of entire “actions,” not individual claims. See Ethridge v. Harbor House 24 Rest., 861 F.2d 1389, 1392 (9th Cir. 1988) (“[A] plaintiff may not use [Rule 41(a)(1)] to 25 dismiss, unilaterally, a single claim from a multi-claim complaint”). Indeed, the Ninth 26 Circuit has clarified that Rule 41(a)(1) “does not allow for piecemeal dismissals.” Hells 27 Canyon Pres. Council v. U.S. Forest Serv., 403 F.3d 683, 687 (9th Cir. 2005). “Instead, 28 withdrawals of individual claims against a given defendant are governed by [Rule] 15, 1 which addresses amendments to pleadings.” Id. Plaintiff’s Notice of Voluntary Dismissal 2 under Rule 41(a)(1)(A)(i) therefore was not the proper way to dismiss the three federal 3 claims. 4 Rather, as mentioned above, Rule 15(a) of the Federal Rules of Civil Procedure “is 5 the appropriate mechanism ‘[w]here a plaintiff desires to eliminate an issue, or one or 6 more but less than all of several claims, but without dismissing as to any of the 7 defendants.’” Ethridge, 861 F.2d at 1392. Although Plaintiff did not formally seek leave 8 to amend, courts construe ineffective notice of dismissals under Rule 41(a)(1) as a motion 9 for leave to amend. See, e.g., Nickerson v. Wells Fargo Bank, No. C-10-01889 EDL, 10 2010 WL 3990743, at *1–2 (N.D. Cal. Oct. 12, 2010) (“[T]he Court construes Plaintiff’s 11 voluntary dismissal of his federal claims as an amendment to his complaint.”); see also 12 Brooks v. Ryan, No. CV-19-0963-PHX-SPL-JFM, 2020 WL 6411950, at *4 (D. Ariz. 13 Oct. 9, 2020), report and recommendation adopted sub nom. Brooks v. Shinn, No. CV-19- 14 00963-PHX-SPL, 2020 WL 6394182 (D. Ariz. Nov. 2, 2020) (construing ineffective 15 notice of dismissal under Rule 41(a)(1) as a motion to amend). The Court therefore 16 construes Plaintiff’s voluntary dismissal as seeking leave to amend. 17 Federal Rule of Civil Procedure 15(a) provides that leave to amend should be 18 freely granted “when justice so requires.” Fed. R. Civ. P. 15(a)(2). “Amendments 19 pursuant to [Rule 15(a)] are liberally granted.” Nickerson, 2010 WL 3990743, at *2 20 (citing Eldridge, 832 F.2d at 1135). This Court will grant leave to amend and treat her 21 ineffective dismissal as an amendment of the complaint to pursue only her six state-law 22 causes of actions. See Metcalf v. Countrywide Fin. Corp., No. C-09-2707 EDL, 2009 WL 23 2485750, at *2 (N.D. Cal. Aug. 11, 2009). Thus, the complaint, as amended, contains no 24 federal claims. 25 B. Motion to Remand 26 A federal court may exercise supplemental jurisdiction over state-law claims “that 27 are so related to claims in the action within such original jurisdiction that they form part 28 of the same case or controversy under Article III of the United States Constitution.” 28 1 U.S.C. § 1367(a). A district court may decline to exercise supplemental jurisdiction over 2 a state-law claim, even where removal was proper, “if (1) the claim raises a novel or 3 complex issue of state law, (2) the claim substantially predominates over the [original 4 jurisdiction claim], (3) the district court has dismissed all claims over which it has 5 original jurisdiction, or (4) in exceptional circumstances.” Id. § 1367(c). “A district 6 court’s decision whether to exercise [supplemental] jurisdiction after dismissing every 7 claim over which it had original jurisdiction is purely discretionary.” Carlsbad Tech., Inc. 8 v. HIF Bio, Inc., 556 U.S. 635, 639 (2009). When exercising its discretion, the court 9 considers the interest in “economy, convenience, fairness, and comity.” Acri v. Varian 10 Assocs., Inc., 114 F.3d 999, 1001 (9th Cir. 1997). “[I]n the usual case in which all 11 federal-law claims are eliminated before trial, the balance of factors . . . will point toward 12 declining to exercise jurisdiction over the remaining state-law claims.” Carnegie-Mellon 13 Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988). Where there is not a strong showing of 14 judicial economy, convenience, and fairness being served by retaining the state-law 15 claims, considerations of comity and federalism favor remanding the claims to state 16 court. See United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966). 17 The threshold requirement for supplemental jurisdiction under 28 U.S.C. 18 § 1367(a) is not satisfied because there is no longer a federal question and there is no 19 diversity jurisdiction. The parties agree that the instant case was removed properly for all 20 nine causes of actions based on federal question and supplemental jurisdiction. The 21 parties now, however, disagree on whether the Court should exercise its discretion to 22 keep the remaining state-law claims. (Doc. 26 at 4–5; Doc. 37 at 5–6.) Plaintiff contends 23 that the Court “should exercise its discretion to decline supplemental jurisdiction over the 24 present matter and remand it to state court, as [the state-law] issues predominate.” (Doc. 25 37 at 6.) Plaintiff also argues that the factors of “economy, convenience, fairness, and 26 comity” all point toward declining supplemental jurisdiction. (Id.) Defendants argue that 27 the factors weigh in their favor, as this matter is “already pending at this Court” and the 28 parties have filed certain motions and responsive pleadings. (Doc. 26 at 4–5.) They also 1 contend that there “are no complex novel issues of law.” (Id.) 2 The Court disagrees with Defendants’ contention that the values of economy, 3 convenience, fairness, and comity favor retention of this matter. These factors may weigh 4 toward exercising supplemental jurisdiction if there is considerable procedural 5 advancement, such that it would be a waste of judicial resources or unfair to the parties to 6 remand the matter. See, e.g., In re Nucorp Energy Sec. Litig., 772 F.2d 1486, 1491 (9th 7 Cir. 1985) (finding that the district court “was right in not imposing unnecessarily on a 8 state court . . . repetition of pleadings, motions, discovery and other pre-trial 9 proceedings”); Acosta v. Cal. Highway Patrol, No. 18-cv-00958-BLF, 2019 WL 10 4596726, at *3 (N.D. Cal. Sept. 23, 2019) (noting that if trial was still set to begin in two 11 weeks the factors would “weigh[] heavily against remand” because it could cause delay 12 of up to two years). There has not been considerable procedural advancement here. This 13 case was removed a few months ago in February and discovery has not yet commenced. 14 There have also been no depositions taken, no experts have been disclosed, and a trial 15 date has not been set. This case has not advanced so far procedurally that it would be a 16 waste of judicial resources or unfair to the parties to remand it to state court. 17 It is also true that the balance of factors may weigh in favor of exercising 18 discretion to retain the claims when considerable time was expended on the state-law 19 claims before dismissing the federal law claims. See Schneider v. TRW, Inc., 938 F.2d 20 986, 994 (9th Cir. 1991) (holding that it was not an abuse of discretion to retain pendent 21 claims after about thirty-two months). Although the Court has limited familiarity with the 22 facts and issues presented in this case, those considerations align more with the “usual 23 case in which all federal-law claims are eliminated before trial” than the exceptional 24 circumstance that would override considerations of federalism and comity. Cohill, 484 25 U.S. at 350 n.7. There has been almost no time expended over the state-law claims here 26 to warrant exercising the Court’s discretion. Even if the judicial economy and 27 convenience factors favor Defendants, their arguments are still unpersuasive because 28 those factors are outweighed by the principles of comity and federalism. See Roundtree v. 1 Atl. Dev. & Inv., No. CV-09-269-PHX-DGC, 2009 WL 2132697, at *3 (D. Ariz. July 16, 2 2009) (finding that remand was appropriate because “the interests of comity and 3 federalism” outweighed judicial economy and convenience); see also Daghlawi v. Juilin 4 Hung, No. CV-19-05824-PHX-DWL, 2020 WL 224362, at *1 (D. Ariz. Jan. 15, 2020) 5 (“[C]onsiderations of federalism and comity are best served by allowing Arizona state 6 courts to address state-law claims.”). 7 While Defendants maintain that the Court should not remand this action because 8 the state-law claims require straightforward application of Arizona law, this Court 9 believes that the state court is better equipped to handle such claims that now 10 substantially predominate the amended complaint. Gibbs, 383 U.S. at 726 (“Needless 11 decisions of state law should be avoided both as a matter of comity and to promote justice 12 between the parties, by procuring for them a surer-footed reading of applicable law.”). 13 Just because a district court can exercise supplemental jurisdiction over certain state 14 matters does not mean that it should. There is nothing unusual about this case that would 15 tilt the balance of factors toward retaining jurisdiction. Cohill, 484 U.S. at 350 n.7; see 16 also Gini v. Las Vegas Metro. Police Dep’t, 40 F.3d 1041, 1046 (9th Cir. 1994) (finding 17 no abuse of discretion when declining to exercise supplemental jurisdiction for a case that 18 was not “in any way unusual”). The Court therefore declines to exercise supplemental 19 jurisdiction over Plaintiff’s state-law claims. 20 IV. CONCLUSION 21 Accordingly, 22 IT IS ORDERED granting Plaintiff’s Motion to Remand (Doc. 15). 23 IT IS FURTHER ORDERED denying as moot the County of Mohave’s Motion 24 to Strike (Doc. 19). 25 IT IS FURTHER ORDERED that the motions (Docs. 23, 27, 30, 35) remain 26 pending with the Superior Court. 27 IT IS FINALLY ORDERED directing the Clerk to remand this action to the 28 Maricopa County Superior Court and close this case. 1 Dated this 24th day of June, 2021. 2 Wichal T. dhurdle Michael T. Liburdi 5 United States District Judge 6 7 8 9 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 _g-