Gabaldon et al v. Peoria, City of et al

Filing 17

ORDER that the Clerk of the Court shall REMAND the present action back to Maricopa County Superior Court. Signed by Judge G Murray Snow on 2/8/2012. (Attachments: # 1 Remand Letter)(KMG)

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9
10
11
12
13
14
15
16

)
)
)
Plaintiffs,
)
)
vs.
)
)
)
City of Peoria, an Arizona municipal
corporation, Juan Gabriel Luera-Harris )
and Jane Doe Luera-Harris, David Barela )
and Jane Doe Barela, Charles Kunde and )
)
Jane Doe Kunde,
)
)
Defendants.
)
Troy and Christine Gabaldon,

No. CV-11-1683-PHX-GMS
ORDER

17
The present action was improperly removed and the Court lacks subject-matter
18
jurisdiction over it; accordingly, the Court remands this case to Maricopa County Superior
19
Court.
20
Federal courts are courts of limited jurisdiction, having subject-matter jurisdiction
21
only over those matters specifically authorized by Congress or the Constitution. Kokkonen
22
v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994). “Only . . . actions that originally could
23
have been filed in federal court may be removed to federal court by the defendant.”
24
Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987). “If at any time before final judgment
25
it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.”
26
28 U.S.C. § 1447(c).
27
“The district courts shall have original jurisdiction of all civil actions arising under
28

1

the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. “A case ‘arises

2

under’ federal law . . . if ‘a well-pleaded complaint establishes that federal law creates the

3

cause of action or that the plaintiff’s right to relief necessarily depends on resolution of a

4

substantial question of federal law.’” Proctor v. Vishay Intertech. Inc., 584 F.3d 1208, 1219

5

(9th Cir. 2009) (quoting Empire Healthchoice Assurance, Inc. v. McVeigh, 547 U.S. 677,

6

689–90 (2006)). Although Defendants state in their Notice of Removal that Plaintiffs bring

7

claims of civil rights violations arising under the United States Constitution, a review of the

8

Complaint reveals that it consists of two counts of common law negligence, and one count

9

of vicarious liability for such negligence. (Doc. 1; Doc. 1-1). None of these counts arise

10

under federal law, and Plaintiffs do not invoke any federal statute as the basis for their causes

11

of action. Plaintiffs themselves state in their Response to Defendants’ Motion to Dismiss, that

12

Defendants’ requested dismissal of Plaintiffs’ § 1983 claims is superfluous because Plaintiffs

13

have “not yet raised” any § 1983 claims. (Doc. 9 at 6).

14

In their Complaint, Plaintiffs state that part of Defendants’ duty of care was to

15

“respect [Plaintiffs’] Fourth Amendment rights.” (Doc. 1-1, ¶ 31; see also id. at ¶¶ 32, 36).

16

The mere mention by Plaintiffs of “Fourth Amendment rights,” however, is not sufficient to

17

establish a substantial question of federal law. See Landry v. Davis, 2008 WL 4787539, at

18

*2 (D. Kan. October 31, 2008). (“Plaintiff’s mere mention of the Eighth Amendment is not

19

enough to confer federal question jurisdiction.”). The Court therefore has no subject-matter

20

jurisdiction. See 28 U.S.C. § 1331 (conferring on federal courts subject-matter jurisdiction

21

over cases arising under federal law).

22

In the absence of subject-matter jurisdiction, this Court is empowered to sua sponte

23

order summary remand. See 28 U.S.C. § 1446(c)(4) (requiring district courts to examine

24

notices of removal and their exhibits and authorizing summary remand in appropriate

25

circumstances); 28 U.S.C. § 1447(c) (requiring district courts to remand cases if it appears,

26

at any time before final judgment is entered, that the court lacks subject-matter jurisdiction).

27

///

28

IT IS THEREFORE ORDERED that the Clerk of the Court shall REMAND the
-2-

1 present action back to Maricopa County Superior Court.
2

DATED this 8th day of February, 2012.

3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-3-