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