Raupp et al v. Arizona Public Service Company et al

Filing 25

ORDER granting 5 Plaintiff's Motion to Remand, the Clerk is directed to remand this case to Maricopa County Superior Court. Signed by Judge David G Campbell on 2/29/12. (Attachments: # 1 Remand Letter). (LSP)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 James Michael Raupp and Nancy Raupp, husband and wife; No. CV 11-2598-PHX-DGC ORDER 10 Plaintiffs, 11 vs. 12 Arizona Public Service Company, an Arizona corporation; et al., 13 Defendants. 14 15 16 Pending before the Court is Defendant Arizona Public Service Company’s 17 (“APS”) motion to dismiss (Doc. 14) and Plaintiffs James Michael Raupp and Nancy 18 Raupp’s motion to remand (Doc. 5). The motion to remand has been fully briefed. Docs. 19 5, 15, 21. For the reasons that follow, the Court will grant the motion to remand.1 20 I. Background. 21 On March 26, 2010, Mr. Raupp began to suffer symptoms of a stroke while at 22 work. Doc. 1-1 at 12. After trying to load equipment into a truck, Mr. Raupp was sent 23 home. Id. at 13. When Ms. Raupp returned home from her work, she found Mr. Raupp 24 asleep in his recliner. Id. She checked on him throughout the night and the next morning 25 found him crawling on the floor and speaking incoherently. Id. The healthcare 26 27 28 1 Defendant’s request for oral argument is denied because the parties have fully briefed the issues and oral argument will not aid the Court’s decision. Fed. R. Civ. P. 78(b); Partridge v. Reich, 141 F.3d 920, 926 (9th Cir. 1998). 1 professionals at a local hospital determined that Mr. Raupp had suffered at least two 2 strokes. Id. As a result of the strokes, Mr. Raupp suffered brain damage and lost the use 3 of his left hand and leg. Id. 4 II. Standard. 5 The question of whether a claim arises under federal law for purposes of 28 U.S.C. 6 § 1331 must be determined by reference to the complaint. Franchise Tax Bd. v. Constr. 7 Laborers Trust, 463 U.S. 1, 9-10 (1983). Invoking a federal issue or provision is not “a 8 password opening federal courts to any state action embracing a point of federal law.” 9 Grable & Sons Metal Prods., Inc. v. Darue Eng'g & Mfg., 545 U.S. 308, 314 (2005). 10 Instead, a claim “arises under” the laws of the United States only if “a well-pleaded 11 complaint establishes either that (1) federal law creates the cause of action; or (2) the 12 plaintiff's right to relief necessarily depends on resolution of a substantial question of 13 federal law.” Franchise Tax Bd., 463 U .S. at 27-28. As to the second prong, the issue 14 turns on whether the complaint includes “allegations of federal law that are essential to 15 the establishment of the claim.” Lippit v. Raymond James Fin. Servs., Inc., 340 F.3d 16 1033, 1041 (9th Cir. 2003). A claim does not present a “substantial question” of federal 17 law merely because a federal statute is an “ingredient” of a state cause of action. Merrell 18 Dow Pharmaceuticals, Inc. v. Thompson, 478 U.S. 804, 813 (1986) (“[T]he mere 19 presence of a federal issue in a state cause of action does not automatically confer federal 20 question jurisdiction.”). 21 Courts strictly construe the removal statute against removal jurisdiction. Gaus v. 22 Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). Indeed, there is a “strong presumption” 23 against removal and “[f]ederal jurisdiction must be rejected if there is any doubt as to the 24 right of removal in the first instance.” Id. The party seeking removal bears the burden of 25 establishing federal jurisdiction. See Prize Frize, Inc. v. Matrix, Inc., 167 F.3d 1261, 26 1265 (9th Cir. 1999). “If at any time before final judgment it appears that the district 27 court lacks subject matter jurisdiction, the case shall be remanded.” 28 U.S.C. § 1447(c). 28 -2- 1 III. Analysis. 2 Plaintiffs’ complaint alleges two causes of action: negligence; and negligent 3 infliction of emotional distress. Doc. 1-1 at 16, 19. Both counts arise from the allegation 4 that APS failed to provide Mr. Raupp with an immediate and effective examination after 5 he displayed symptoms of a stroke while at work. Id. at 17-18. Defendants argue that 6 this entire case is premised on Plaintiffs’ assertion that the federally-mandated “Fitness 7 for Duty” policy imposed a legal duty on APS. Doc. 15 at 1. Defendants contend that 8 whether APS undertook to render services to Mr. Raupp by creating the Fitness for Duty 9 program and whether APS undertook the program for Mr. Raupp’s protection both 10 necessarily depend on interpretation of the purpose and intent of such programs. Id. at 5. 11 Plaintiffs argue that the underlying factual allegations supporting the negligence 12 claims stem from APS’ failure to act reasonably under the applicable standard of due 13 care, and its unreasonable failure to follow and comply with its own corporate safety 14 policies. Doc. 5 at 4. Plaintiffs allege that APS has a separate and independent duty 15 under Arizona law to act reasonably and appropriately under the circumstances 16 surrounding Mr. Raupp’s claim, regardless of the genesis of its Fitness for Duty program 17 or its safety policies.2 Id. at 5. 18 Plaintiffs do not challenge any aspect of Defendant’s Fitness for Duty program or 19 claim that the program was inadequate or deficient. Plaintiffs do not allege a violation of 20 any federal regulation or a negligence per se claim. Doc. 5 at 5. Rather, Plaintiffs 21 challenge the allegedly unreasonable handling of Mr. Raupp’s suspected intoxication, and 22 assert that this unreasonableness is evidenced by Defendants’ violations of their own 23 safety policy. Doc. 5 at 4. Federal question jurisdiction does not exist simply because a 24 federal question is an ingredient of the state law claim or because the action may 25 26 2 27 28 Plaintiffs state in their motion to remand the NRC regulations could be interpreted in any number of ways (i.e., imposing a duty, not imposing a duty, imposing a partial duty, etc.) without having any influence on the question of APS’ duty and breach under Arizona law. Doc. 5 at 6. -3- 1 implicate a federal issue.3 Merrell Dow, 478 U.S. at 807; Empire Healthchoice Assur., 2 Inc. v. McVeigh, 547 U.S. 677, 701 (2006). The Court will grant Plaintiffs’ motion to 3 remand. 4 IV. Because the Court will remand this case to state court, it will not address 5 6 Motion to Dismiss. Defendant’s motion to dismiss. 7 IT IS ORDERED: 8 1. Plaintiffs’ motion to remand (Doc. 5) is granted. 9 2. The Clerk is directed to remand this case to Maricopa County Superior 10 Court. Dated this 29th day of February, 2012. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 Even if Defendant were to defend itself by invoking a federal regulation and showing what it requires or does not require, such a defense would be insufficient to create a federal question for jurisdictional purposes. Takeda v. Nw. Nat. Life Ins. Co., 765 F.2d 815, 821-22 (9th Cir. 1985) (holding that federal question jurisdiction does not arise from the defenses or counterclaims alleged by a defendant). -4-

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