Pierce v. Maricopa, City of et al

Filing 16

ORDER granting Pierce's Motion to Remand (Doc. 5 ). IT IS FURTHER ORDERED the Clerk of the Court shall remand this case to Pinal County Superior Court. Signed by Senior Judge James A Teilborg on 2/26/2013. (Attachments: # 1 Remand Letter)(KMG)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Plaintiff,
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vs.
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City of Maricopa, and John and Jane Does)
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I-X,
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Defendants.
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James A. Pierce,

No. CV 12-2083-PHX-JAT
ORDER

Currently pending before the Court is Plaintiff James A. Pierce’s Motion to Remand

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to the Superior Court in Pinal County (Doc. 5). The Court now rules on this motion.

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I.

BACKGROUND

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Plaintiff James A. Pierce (“Pierce”) filed a civil complaint against Defendants

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Maricopa County and John and Jane Does I-X (collectively “Maricopa”) in the Pinal County

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Superior Court on June 27, 2012. The Complaint contains claims of “assault and/or

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excessive force, violation of A.R.S. § 13-3916, deliberate indifference, negligent supervision,

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intentional and/or negligent infliction of emotional distress, and violations of the Arizona

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Constitution, including right to privacy, due process and abuse of power” arising out of

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Maricopa’s lawful execution of a search warrant for Pierce’s residence (Doc. 1, Exhibit 1,

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Complaint, at 6-8). Pierce seeks compensatory and punitive damages, costs and attorney’s

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fees, and appropriate further relief.

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Maricopa removed the action to this Court on October 1, 2012. Maricopa asserts in

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its notice of removal that the Court has original jurisdiction under 28 U.S.C. § 1331 because

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one or more of Pierce’s claims “aris[e] under the Constitution, laws, or treaties of the United

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States,” and, therefore, the Court has subject matter jurisdiction under 28 U.S.C. § 1441(a)

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(Doc. 1, at 2).

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Pierce objects to removal and moves for remand to Pinal County Superior Court on

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three grounds: (1) there is no subject matter jurisdiction because Pierce, as plaintiff, has not

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asserted any federal claims; (2) Maricopa waived removal through its actions in the state

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court proceedings; and (3) Maricopa did not timely file for removal.

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II.

REMOVAL AND REMAND STANDARDS

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Pursuant to the removal statute, 28 U.S.C. § 1441, any civil action brought in state

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court over which the federal district courts have original jurisdiction may be removed to the

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federal district court for the district where the action is pending. 28 U.S.C. § 1441(a). There

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is a “strong presumption” against removal and “[f]ederal jurisdiction must be rejected if there

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is any doubt as to the right of removal in the first instance.” Gaus v. Miles, Inc., 980 F.2d

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564, 566 (9th Cir. 1992). “The ‘strong presumption’ against removal jurisdiction means that

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the defendant always has the burden of establishing that removal is proper.” Id. “If at any

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time before final judgment it appears that the district court lacks subject matter jurisdiction,

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the case shall be remanded.” 28 U.S.C. § 1447(c).

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III.

DISCUSSION

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The complaint in this case does not explicitly claim a cause of action under the

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Constitution or laws of the United States (Doc. 1, Exhibit 1, Complaint, at 5-9). While the

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Arizona state causes of action Pierce alleges—for example his due process and equal

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protection claims—may have federal law analogs, in his motion for remand, Pierce argues

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that he had been “careful not to plead any federal claims” and that “[n]owhere are federal

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claims made” in the complaint (Doc. 5, at 2, 4). In Pierce’s reply to Maricopa’s response to

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his motion to remand, Pierce further characterizes his complaint as avoiding federal claims:

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“no federal claims were pleaded, [and they] are not being asserted”; “[Pierce] does not make

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the claim to any federal causes of action”; and “[t]he complaint does not reference any
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federal constitutional claims” (Doc. 7, at 1-3). Indeed, Maricopa, itself, appears to recognize

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that the complaint does not plead federal claims; a lack of notice of federal claims within the

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“four corners of the complaint” forms the backbone of Maricopa’s timeliness argument (Doc.

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6, at 4-5).

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Instead of pursuing potential federal claims, Pierce avows that he intends to rely solely

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on the Arizona Constitution and state statutes to address his claims (Doc. 5, at 4; Doc. 7, at

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3). Pierce, as plaintiff, is “master to decide what law he will rely upon,” Fair v. Kohler Die

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& Specialty Co., 228 U.S. 22, 25 (1913). Consequently, if Pierce “can maintain his claim

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on both state and federal grounds, he may ignore the federal question and assert only a state

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law claim and defeat removal.” Sullivan v. First Affiliated Securities, Inc., 813 F.2d 1368,

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1371-72 (9th Cir.), cert. denied, 484 U.S. 850 (1987) (citing Hunter v. United Van Lines, 746

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F.2d 635, 641 (9th Cir. 1984), cert. denied, 474 U.S. 863 (1985)).

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Confusion about Pierce’s intentions to pursue a federal claim appears to have arisen

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from an ambiguous answer Pierce provided to one of Maricopa’s non-uniform interrogatories

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which asked Pierce “to state all theories of liability for any claims asserted under the U.S.

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Constitution and/or 42 U.S.C. § 1983”; Pierce answered: “due process, equal protection, right

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of privacy, deliberate indifference, [and] acting under color of law to violate [Pierce]’s

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rights” (Doc. 6, at 2). Any confusion, however, should now be dispelled by Pierce’s repeated

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assertions that he has not and will not plead any federal claims unless this Court “somehow

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determine[s] that the complaint also included federal claims” (Doc. 7, at 1-2).1

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In light of Pierce’s repeated disavowal of federal claims, this court lacks subject

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matter jurisdiction over this case. “A case ‘arises under’ federal law within the meaning of

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section 1331 only if a federal question appears on the face of plaintiff’s well-pleaded

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Under the doctrine of judicial estoppel: “where a party assumes a certain position
in a legal proceeding, and succeeds in maintaining that position, he may not thereafter,
simply because his interests have changed, assume a contrary position, especially if it be to
the prejudice of the party who has acquiesced in the position formerly taken by him.” New
Hampshire v. Maine, 532 U.S. 742, 742-43 (2001) (citing Davis v. Wakelee, 156 U.S. 680,
689 (1895)).
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complaint.” Sullivan, 813 F.2d at 1371 (citing Louisville & Nashville R.R. Co. v. Mottley,

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211 U.S. 149, 152 (1908)). Because there are no federal questions in Pierce’s complaint,

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there is no basis for original jurisdiction under 28 U.S.C. § 1331. Consequently, the Court

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lacks subject matter jurisdiction. Because the Court lacks subject matter jurisdiction, the

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Court need not address Maricopa’s timeliness or waiver arguments, and 28 U.S.C. § 1447(c)

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requires remand.

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IV.

CONCLUSION

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Accordingly,

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IT IS ORDERED granting Pierce’s Motion to Remand (Doc. 5).

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IT IS FURTHER ORDERED the Clerk of the Court shall remand this case to Pinal
County Superior Court.
DATED this 26th day of February, 2013.

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