Archer et al v. Darling et al

Filing 371

ORDER. ORDERED that the remaining state law claims are DISMISSED withoutprejudice. It is further ORDERED that plaintiffs motion for summary judgment 332 is DENIED as moot. ORDERED that defendant Scott McDowells motion for summary judgment 338 is DENIED as moot. ORDERED that defendant Dana Lynn Rocks motion for summary judgment 369 is DENIED as moot by Judge Philip A. Brimmer on 05/06/11.(jjh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Case No. 09-cv-01988-PAB-KMT
RYAN ARCHER, et al.,
Plaintiffs,
v.
WALLACE DARLING, et al.,
Defendants.

ORDER

This matter is before the Court sua sponte. In their second amended complaint
[Docket No. 91], plaintiffs bring thirteen claims for relief arising under state and federal
law. The Court exercised original jurisdiction over the claims which relied upon the Real
Estate Settlement Procedures Act (“RESPA”), 12 U.S.C. §§ 2601, et seq., see 28
U.S.C. § 1331, and supplemental jurisdiction over plaintiffs’ state law claims pursuant to
28 U.S.C. § 1367(a). All of the defendants against which plaintiffs brought their RESPA
claims have been dismissed from this action, leaving only state law claims.
While plaintiffs also alleged that this case satisfied the diversity of citizenship and
amount in controversy requirements of 28 U.S.C. § 1332(a), the Court previously noted,
see Docket No. 267 at 2, n.2, that plaintiffs’ citizenship averments are inadequate. See
generally U.S. Advisor, LLC v. Berkshire Property Advisors, LLC, No. 09-cv-00697PAB-CBS, 2009 WL 2055206 (D. Colo. July 10, 2009). Plaintiffs have not sought to
amend their complaint to cure that deficiency, but instead now contend that the “Court

exercises supplemental jurisdiction over Plaintiffs’ state law claims pursuant to 28
U.S.C. § 1367(a).” Docket No. 332 at 4.
As a general proposition, “[p]endent jurisdiction is exercised on a discretionary
basis, keeping in mind considerations of judicial economy, convenience and fairness to
the litigants.” Bauchman v. West High School, 132 F.3d 542, 549 (10th Cir. 1997). In
the specific context of § 1367(c)(3), however, the Tenth Circuit has concluded that, “[i]f
federal claims are dismissed before trial, leaving only issues of state law, ‘the federal
court should decline the exercise of jurisdiction by dismissing the case without
prejudice.’” Id. (quoting Carnegie-Mellon University v. Cohill, 484 U.S. 343, 350 (1988)).
The reason courts should dismiss such claims is that “‘[n]otions of comity and
federalism demand that a state court try its own lawsuits, absent compelling reasons to
the contrary.’” Brooks v. Gaenzle, 614 F.3d 1213, 1230 (10th Cir. 2010) (quoting Ball v.
Renner, 54 F.3d 664, 669 (10th Cir. 1995)).
A court’s exercise of discretion, it would seem, is limited to determining whether
compelling reasons justify retaining jurisdiction. In Kosak v. Catholic Health Initiatives
of Colo., No. 08-cv-01505-CMA-MJW, 2009 WL 3497782 (D. Colo. Oct. 28, 2009), the
court retained supplemental jurisdiction over state claims, weighing the “values of
judicial economy, convenience, fairness, and comity,” and granted summary judgment
on all the pending federal and state claims. Id. at *7-8 (citing City of Chicago v.
International College of Surgeons, 522 U.S. 156, 173 (1997)). The Kosak court
concluded that, “[i]f this Court remands the action and does not address the substantive
merits of the summary judgment motion – a motion on which the Court is otherwise

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prepared to rule – both parties would be disadvantaged by the inevitable delay that
would almost certainly result from remand.” Id. at *8. In this case, where default has
entered against certain parties and the Court is prepared to rule on pending summary
judgment motions on state law claims, such traditional considerations of judicial
economy might justify the exercise of supplemental jurisdiction. Recent opinions of the
Tenth Circuit, however, appear to foreclose the Court from considering such factors as
compelling reasons to retain jurisdiction. See Brooks v. Gaenzle, 614 F.3d 1213, 1229
(10th Cir. 2010); Endris v. Sheridan County Police Dep’t, 2011 WL 441694 (10th Cir.
Feb. 9, 2011) (unpublished).
In Brooks, after reaffirming that courts have discretion to determine whether to
exercise supplemental jurisdiction after dismissal of all federal claims, the court affirmed
the district court’s dismissal of the federal claims but reversed the district court’s
granting of summary judgment on state law claims. See Brooks, 614 F.3d at 1230.
Arguably, the Brooks decision was motivated by the fact that a potentially difficult
question of state law was presented by the case. See id. (concluding that the state law
claims were best left to the state court “including whether Colorado Revised Statute
§ 13-80-119 and/or § 18-1-707, as applied specifically to peace officers, require either
objective or subjective reasonable force”). But, since the Brooks decision, the Tenth
Circuit concluded in Endris that “any state-law claims for assault and battery or mental
and emotional distress were inappropriate subjects for the exercise of pendent
jurisdiction where all federal claims had been dismissed.” Endris, 2011 WL 441694, at
*2 (citing Brooks, 614 F.3d at 1229) (footnote omitted) (emphasis added). The Endris

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court made no mention of either the complexity or novelty of those state law claims.
Furthermore, and in any event, complexity and novelty are independent bases for
declining to exercise supplemental jurisdiction. See 28 U.S.C. § 1367(c)(1).
In short, it is far from clear what, if any, discretion the Court retains to exercise
jurisdiction over the state law claims in this case. At least one commentator has stated
that “there is a substantial caselaw, handed down in a variety of situations, suggesting
in the aggregate that [when § 1367(c)(3) applies] judicial discretion is a particularly
important element. Here the ‘may’ in ‘may decline’ has a major role to play.” See David
D. Siegel, Commentary on 1988 Revision: The 1990 Adoption of § 1367, Codifying
“Supplemental” Jurisdiction, 28 U.S.C.A. § 1367, at 766 (2006).1 However, the Tenth
Circuit’s application of § 1367(c)(3) in Brooks and Endris suggests precisely the
opposite is true. In the wake of those Tenth Circuit decisions, the Court concludes that
where, as here, federal claims have been dismissed well before trial, the potential delay
in resolution of the state law claims resulting from their dismissal without prejudice is
not a compelling reason to retain jurisdiction.2

1

See id. (“The House Report of the Committee on the Judiciary (Report 101-734,
p. 29) said of subdivision (c) that it requires the district court, in exercising discretion, to
undertake, as it did under prior law, ‘a case-specific analysis.’”).
2

See Brooks, 614 F.3d at 1230 (“Colorado law recognizes if a plaintiff asserts all
of his or her claims, including state law claims, in federal court, and the federal court
declines to exercise supplemental jurisdiction over the state claims, the plaintiff may
refile those claims in state court.”) (citations, quotation marks and alterations omitted);
see 28 U.S.C. § 1367(d) (providing that the state law statute of limitations “shall be
tolled while the claim is pending and for a period of 30 days after it is dismissed unless
State law provides for a longer tolling period”).
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Therefore, it is
ORDERED that the remaining state law claims are DISMISSED without
prejudice. It is further
ORDERED that plaintiff’s motion for summary judgment [Docket No. 332] is
DENIED as moot. It is further
ORDERED that defendant Scott McDowell’s motion for summary judgment
[Docket No. 338] is DENIED as moot. It is further
ORDERED that defendant Dana Lynn Rock’s motion for summary judgment
[Docket No. 369] is DENIED as moot.

DATED May 6, 2011.
BY THE COURT:

s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge

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