Athetis et al v. Gilbert, Town of, et al

Filing 141

ORDER, granting Plaintiffs' 139 Request for Remand, the Clerk shall remand the remaining claims to State Court for adjudication; denying Taser's 140 Motion for Leave to File Reply to Plaintiffs' OSC Response or, Alternatively, to Submit Supplemental Authorities. Signed by Judge Neil V Wake on 7/1/11.(REW)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Andrew J. Athetis, III and Gina L. Athetis,)
as surviving parents of Andrew J. Athetis,)
IV, deceased,
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Plaintiffs,
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vs.
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Town of Gilbert, a political subdivision of)
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the State of Arizona; et al.,
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Defendants.
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No. CV-09-00677-PHX-NVW
ORDER

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On May 16, 2011, the Court issued an order to show cause why this case should not

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be remanded to state court for adjudication of the remaining state law claims (Doc. 131). In

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that order, the Court noted that the basis for federal jurisdiction appeared to have been

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extinguished when the parties’ stipulation of dismissal of Plaintiffs’ claims under 42 U.S.C.

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§ 1983 was granted (Doc. 122). Defendants filed a Joint Response to Order to Show Cause

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Why Case Should Not Be Remanded to State Court (Doc. 136), arguing that this action

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should remain in federal court because substantial discovery has been completed and fully

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briefed dispositive motions are currently pending before the Court. Plaintiffs filed a

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Response to Defendants’ Joint Response to Order to Show Cause Why Case Should Not Be

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Remanded to State Court and Request for Remand (Doc. 139) in support of remand.

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Thereafter, Defendant Taser filed a request for a leave to file a reply to Plaintiffs’ response

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to the Court’s order to show cause to address Plaintiffs’ contention that remand is mandatory

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in this circumstance (Doc. 140). It is within the Court’s discretion whether to retain

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jurisdiction over this case or to remand the remaining claims to state court where all of the

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claims over which the Court has original jurisdiction have been dismissed. See 28 U .S.C.

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§ 1367(c)(3). Further briefing on this point is unnecessary; Taser’s request to file a reply

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(Doc. 140) will therefore be denied.

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In this case, Plaintiffs’ 42 U.S.C. § 1983 claims – the only federal claims in this matter

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and the only basis for federal jurisdiction – have been dismissed. Where federal law claims

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have been eliminated before trial, this Court has discretion to retain, remand or dismiss the

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pendent state law claims. See 28 U .S.C. § 1367(c)(3). In considering whether to remand

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the remaining state law claims, the Court weighs the “values of judicial economy,

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convenience, fairness, and comity.” Acri v. Varian Assocs., Inc., 114 F.3d 999, 1001 (9th

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Cir. 1997) (internal quotation marks omitted). “In the usual case in which all federal-law

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claims are eliminated before trial, the balance of factors . . . will point toward declining to

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exercise jurisdiction over the remaining state-law claims.” Id. (quoting Carnegie-Mellon v.

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Cohill, 484 U.S. 343, 350 n. 7 (1988)).

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This Court has only set a case management schedule; it has not considered or ruled

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on any of the pending substantive motions. Although substantial discovery has been

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completed, that discovery will still be useful in the state court litigation of this matter and the

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state court judge can rule on the pending motions without any loss of judicial economy.

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Whether federal or Arizona expert witness rules apply is irrelevant to the issue of remand and

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will not be decided at this time. Additionally, Plaintiffs originally elected to file this matter

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in state court; their preference for proceeding in state court weighs in favor of remand.

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Considering all of these factors, there is no interest in economy, fairness, or convenience that

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warrants this Court retaining jurisdiction. The Court will accordingly remand this case to

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state court for adjudication of the remaining state law claims.

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IT IS ORDERED that Plaintiffs’ request for remand (Doc. 139) is granted. The Clerk
shall remand the remaining claims to state court for adjudication.
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IT IS FURTHER ORDERED that Taser’s Request for Leave to File Reply to

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Plaintiffs’ OSC Response or, Alternatively, to Submit Supplemental Authorities (Doc. 140)

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is denied.

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DATED this 1st day of July, 2011.

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