Moussa v. Pima, County of

Filing 26

ORDER that the legal conclusions from Magistrate Judge Kimmins' R&R (Doc. 23 ) are ACCEPTED this Court is without subject-matter jurisdiction. It is further Ordered that Plaintiff's Motion to Remand (Doc. 15 ) is GRANTED. It is further Ordered that Plaintiff's request for attorney's fees is DENIED as Defendant's motion to remand was not objectively unreasonable due to Plaintiff's reference (but not reliance upon) federal law incorporated into a state statut e. It is further Ordered that Defendant's Motion to Dismiss (Doc. 4 ) is TERMINATED on CM/ECF as "moot." It is further Ordered that the Clerk of the Court enter judgment and close this civil action. Signed by Senior Judge Cindy K Jorgenson on 4/25/2018. (MFR)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Sam E Moussa,
Plaintiff,

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No. CV-17-00523-TUC-CKJ (LCK)
ORDER

v.
County of Pima,
Defendant.

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In this matter, Plaintiff filed a motion to remand which Magistrate Judge Kimmins

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recommends this Court grant. See Docs. 15 (Motion to Remand) and 23 (Report &

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Recommendation). The Court has reviewed all of the pertinent filings in this case,

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including Defendant’s Notice of Removal, Response to Plaintiff’s motion, and Objections

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to the Report & Recommendation (R&R). See Docs. 1, 17, and 24.

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Defendant has objected to eight specific statements in the “Factual and Procedural

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Background” of the R&R and further requests that the Court modify the report to clarify

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a matter of state law. See Doc. 24.

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A District Court reviews objected to portions of a magistrate judge’s findings and

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recommendations under a de novo standard. See United States v. Reyna-Tapia, 328 F.3d

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1114, 1121 (9th Cir. 2003) (“the district judge must review the magistrate judge's

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findings and recommendations de novo if objection is made, but not otherwise”)

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(emphasis in original).

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The R&R does not misstate the law – nor does Defendant contend that it does. See

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generally, Doc. 24. Once a federal court determines that it doesn’t have subject-matter

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jurisdiction, it must remand the case. See Polo v. Innoventions Int'l, LLC, 833 F.3d 1193,

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1196 (9th Cir. 2016) (“Remand is the correct remedy because a failure of federal subject-

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matter jurisdiction means [] that the federal courts have no power to adjudicate the

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matter.”); see also, Bruns v. Nat'l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir.

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1997) (holding that remand for lack of subject matter jurisdiction “is mandatory, not

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discretionary”).

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Defendants do not object to the R&R’s conclusion that this Court lacks the

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subject-matter jurisdiction to adjudicate this matter. Instead, Defendant objects to Judge

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Kimmins’ expressing Plaintiff’s factual allegations as true for purposes of adjudicating

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the motion to remand, and requests this Court modify the R&R to “clarify that the

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allegations are disputed.” See Doc. 24 at pg. 2.

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However, once a federal court determines that it lacks jurisdiction, further inquiry

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into the matter must stop. See 28 U.S.C. § 1447(c) (“If at any time before final judgment

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it appears that the district court lacks subject matter jurisdiction, the case shall be

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remanded.”); see also, Sinochem Int'l Co. v. Malaysia Int'l Shipping Corp., 549 U.S. 422,

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431 (2007) (clarifying that when a federal court resolves a case “short of reaching the

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merits ... the court will not ‘proceed at all’ to an adjudication of the cause”).

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This Court undisputedly lacks the subject-matter jurisdiction to adjudicate this

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case. See Doc. 23 (explaining that Plaintiff raises no claim that creates Article III

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jurisdiction). Therefore, no further inquiry or explication on the facts or merits of

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Plaintiff’s claim is warranted. See Kircher v. Putnam Funds Tr., 547 U.S. 633, 640

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(2006) (expounding Congress’s policy of quickly remanding cases where a federal court

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lacks subject-matter jurisdiction).

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Accordingly, IT IS ORDERED that the legal conclusions from Magistrate Judge

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Kimmins’ R&R (Doc. 23) are ACCEPTED — this Court is without subject-matter

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jurisdiction.

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IT IS FURTHER ORDERED that Plaintiff’s Motion to Remand (Doc. 15) is
GRANTED.

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IT IS FURTHER ORDERED that Plaintiff’s request for attorney’s fees is

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DENIED as Defendant’s motion to remand was not objectively unreasonable due to

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Plaintiff’s reference (but not reliance upon) federal law incorporated into a state statute.

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See Doc. 23 at pg. 8 (citing Gardner v. UICI, 508 F.3d 559 (9th Cir. 2007)).1

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IT IS FURTHER ORDERED that Defendant’s Motion to Dismiss (Doc. 4) is
TERMINATED on CM/ECF as “moot.”

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IT IS FURTHER ORDERED that the Clerk of the Court enter judgment and close
this civil action.

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IT IS FURTHER ORDERED that the Clerk of the Court mail a certified copy of

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this Order to Pima County Superior Court.

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Dated this 25th day of April, 2018.

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See further, Prior v. Ryan, 2012 WL 1344286, at *1 (D. Ariz. Apr. 18, 2012)
(acknowledging that the District Court reviews unobjected-to-portions of an R&R for
clear error).
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