Estate of Oral W. Nunis, Sr. et al v. City of Chula Vista et al

Filing 18

ORDER: (1) Denying Motion to Remand (2) Denying as Moot Ex Parte Motion to Shorten Time for Motion Hearing (Doc. Nos. 8 , 11 ). Signed by Judge Anthony J. Battaglia on 11/18/2021. (jrm)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10
11
12
13

ESTATE OF ORAL W. NUNIS, SR. by
and through, ROXIE A. NUNIS,
individually and as successor in interest
to the ESTATE, et al.,

14
15
16
17
18
19

Case No.: 21-cv-1627-AJB-DEB
ORDER:
(1) DENYING MOTION TO
REMAND

Plaintiffs,

(2) DENYING AS MOOT EX PARTE
MOTION TO SHORTEN TIME FOR
MOTION HEARING

v.
CITY OF CHULA VISTA, et al.,

(Doc. Nos. 8, 11)

Defendants.

20
21

Before the Court is a motion to remand filed by Plaintiffs, Estate of Oral W. Nunis,

22

Sr., by and through Roxie A. Nunis, individually and as successor in interest to the Estate;

23

Naomi Nunis; Willie Mae Kirkland as Guardian ad Litem for Abigail Tabitha Nunis; and

24

Jabez Caleb Nunis (“Estate Plaintiffs”). (Doc. No. 8.) Defendants, City of Chula Vista,

25

Evan Linney, Manuel Padilla, David Rivers, Brian Olson, Jordan Salvador, David Arce,

26

Denny Kremer, and Kenneth Hicks (collectively “Defendants”) filed an opposition, to

27

which the Estate Plaintiffs replied. (Doc. Nos. 12, 15.) Having reviewed the parties’

28

moving papers, the Court finds the motion suitable for determination without oral
1

21-cv-1627-AJB-DEB

1

argument. Civ. L. R. 7.1(d)(1). For the reasons set forth below, the Court DENIES the

2

motion to remand.

3

I.

BACKGROUND

4

On September 15, 2021, San Diego Superior Court Judge Gregory W. Pollack

5

granted Defendants’ unopposed motion to consolidate two related wrongful death lawsuits

6

arising out of Oral W. Nunis, Sr.’s death on March 13, 2020, while in the custody of Chula

7

Vista police officers. (Doc. No. 17 at 54.) The two cases are (1) Estate of Oral W. Nunis,

8

Sr., et al. v. City of Chula Vista, et al., brought by the decedent’s wife and three younger

9

children; and (2) Kimone Nunis, et al. v. City of Chula Vista, et al., brought by the

10

decedent’s four older children. (Id. at 2–3.) The operative complaint in the Estate matter

11

brings causes of action for civil rights violations under California’s Bane Act, assault,

12

battery, false imprisonment, and negligence. (Id. at 6.) The operative complaint in the

13

Kimone matter brings several causes of action, including civil rights violations under 42

14

U.S.C. § 1983, civil rights violations under the Bane Act, assault, battery, negligence, and

15

negligent and intentional infliction of emotional distress. (Id. at 29.) On September 16,

16

2021, Defendants removed the consolidated case to federal court based on federal-question

17

jurisdiction. (Doc. No. 1.) The instant motion to remand the case to state court follows.

18

(Doc. No. 8.)

19

II.

LEGAL STANDARD

20

The right to remove a case to federal court is entirely a creature of statute. See

21

Libhart v. Santa Monica Dairy Co., 592 F.2d 1062, 1064 (9th Cir. 1979). The removal

22

statute, 28 U.S.C. § 1441, allows defendants to remove an action when a case originally

23

filed in state court presents a federal question, or is between citizens of different states and

24

involves an amount in controversy that exceeds $75,000. See 28 U.S.C. §§ 1441(a), (b); 28

25

U.S.C. §§ 1331, 1332(a). Only state court actions that could originally have been filed in

26

federal court can be removed. 28 U.S.C. § 1441(a); see also Caterpillar Inc. v. Williams,

27

482 U.S. 386, 392 (1987); Ethridge v. Harbor House Rest., 861 F.2d 1389, 1393 (9th Cir.

28

1988).
2

21-cv-1627-AJB-DEB

1

The presence of federal-question jurisdiction “is governed by the ‘well-pleaded

2

complaint rule,’ which provides that federal jurisdiction exists only when a federal question

3

is presented on the face of the plaintiff’s properly pleaded complaint.” Caterpillar, 482

4

U.S. at 392. “The rule makes the plaintiff the master of the claim; he or she may avoid

5

federal jurisdiction by exclusive reliance on state law.” Id. In determining jurisdiction over

6

separate actions that have been consolidated for all purposes, “the actions are treated as if

7

only one complaint had originally been filed.” Bridewell-Sledge v. Blue Cross of

8

California, 798 F.3d 923, 925 (9th Cir. 2015).

9

III.

DISCUSSION

10

The Estate Plaintiffs argue that this action should be remanded because the operative

11

complaint in the Estate matter “does not trigger federal subject matter jurisdiction since

12

only state common law causes of action of assault, battery, false imprisonment, and

13

negligence are pleaded.” (Doc. No. 8 at 9.) The Estate Plaintiffs further assert that because

14

the Estate matter “is well underway” with discovery produced and a trial date pending on

15

May 13, 2022 in state court, the Court should exercise its discretion to remand this action.

16

(Id. at 12–13.) Defendants contend that it is irrelevant that the operative complaint in the

17

Estate matter did not contain a federal question because the consolidated action before this

18

Court, which includes the Kimone matter, does. (Doc. No. 12 at 6.) The Court agrees.

19

There is no dispute that the Estate and Kimone matters were consolidated at the state

20

court level for all purposes. (Doc. Nos. 12 at 6; 15 at 3.) To determine whether

21

federal-question jurisdiction exist over this consolidated case, the Court looks to the

22

complaint in both actions, treating them “as if only one complaint had originally been

23

filed.” Bridewell-Sledge, 798 F.3d at 925. Applying the well-pleaded complaint rule, the

24

Court finds that it has federal-question jurisdiction over this case because the consolidated

25

action contains four claims pursuant to 42 U.S.C. § 1983, a federal statute. (Doc. No. 17 at

26

41–46, Kimone Compl.) Because the consolidated action raises a federal question, the

27

Court has subject matter jurisdiction over this case, and Defendants were entitled to

28

removal. See 28 U.S.C. § 1441(a); 28 U.S.C. § 1331; Caterpillar, 482 U.S. at 392.
3

21-cv-1627-AJB-DEB

1

While the Estate Plaintiffs argue that principles of fairness and equity require the

2

Court to remand the case, “[j]urisdictional dismissals in cases premised on federal-question

3

jurisdiction are exceptional and must satisfy the requirements specified in Bell v. Hood,

4

327 U.S. 678 (1946).” Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004)

5

(quoting Sun Valley Gas., Inc. v. Ernst Enters., 711 F.2d 138, 140 (9th Cir. 1983). In Bell,

6

the Supreme Court instructed that “a suit may sometimes be dismissed for want of

7

jurisdiction where the alleged claim under the Constitution or federal statutes clearly

8

appears to be immaterial and made solely for the purpose of obtaining jurisdiction or where

9

such a claim is wholly insubstantial and frivolous.” Bell, 327 U.S. at 682–83.

10

The Estate Plaintiffs have not shown that the rare dismissal of a case in which the

11

Court has federal-question jurisdiction is warranted here. See id. First, nowhere in their

12

opening brief or reply do the Estate Plaintiffs mention the Bell standard. 1 (Doc. Nos. 8,

13

15.) Second, the Court finds their allegations that Defendants engaged in gamesmanship

14

by conspiring with counsel for the Kimone Plaintiffs to “get the Family’s Case in federal

15

court” unpersuasive. (Doc. No. 15 at 5.) The record does not support a finding that

16

Defendants improperly manipulated removal of this action.

17

As the Estate Plaintiffs concede, they chose not to oppose Defendants’ motion to

18

consolidate their case with the Kimone matter. (Doc. No. 8 at 6.) Had they opposed

19

consolidation, Defendants would have had no basis to remove their case to federal court.

20

(Id.) Considering that the Estate Plaintiffs had the opportunity, but neglected to oppose

21

consolidation and prevent removal, the Court finds their accusations of gamesmanship

22

unavailing. 2 Additionally, there is no indication that the federal civil rights claims raised

23

1

26

The Court notes that because there has been no dismissal of the federal claims in this case, the Estate
Plaintiffs’ request for the Court to deny exercising pendent jurisdiction over their state claims is
inappropriate at this time. See Harrell v. 20th Century Ins. Co., 934 F.2d 203, 205 (9th Cir. 1991) (noting
that the district court has discretion to adjudicate pendent state claims following final disposition of all
federal claims).

27

2

24
25

28

Indeed, counsel for the Estate Plaintiffs admitted that he did not read past the motion’s opening caption
and first few paragraphs, and that had he read the paragraph about the Kimone matter including causes of
action under 42 U.S.C. § 1983, he would have filed an opposition. (Doc. No. 8 at 6–7.)

4

21-cv-1627-AJB-DEB

1

in this action are immaterial or wholly insubstantial and frivolous. See Bell, 327 U.S. at

2

682–83. Thus, the Court does not find this case to be exceptional and warranting a rare

3

remand under Bell.

4

IV.

CONCLUSION

5

Accordingly, for the foregoing reasons, the Court DENIES the motion to remand

6

(Doc. No. 8) and VACATES the previously scheduled motion hearing on December 23,

7

2021. Having vacated the motion hearing date and denied the motion to remand, the Court

8

DENIES AS MOOT the ex parte motion to shorten time for motion hearing. (Doc. No.

9

11.) Lastly, for completeness of the record and judicial efficiency, the Court ORDERS

10

Defendants to file, no later than noon on Tuesday, November 23, 2021, the answers to the

11

operative complaints in this case. 3

12
13

IT IS SO ORDERED.
Dated: November 19, 2021

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

3

For ease of document identification and reference, the Court instructs the parties that future filings of
document exhibits MUST be filed as separate attachments to a main document identifying the exhibits
attached. The parties are discouraged from filing several exhibits as one composite document. Such filings
are onerous to sift through and do no favors for judicial efficiency.

5

21-cv-1627-AJB-DEB