Marquez v. Rio Grande County, Colorado et al

Filing 109

ORDER. The remaining claims in this action are dismissed without prejudice. Defendants' 86 , 87 motions for summary judgment are denied without prejudice as moot. Judgment shall enter reflecting summary judgment in favor of defendants Norton and Wheelwright, see Docket No. 78 , and the dismissal without prejudice of plaintiff's state law claims against defendants Peterson, Metz, and Harvest Standard, and defendant Harvest Standards state law counterclaims against plaintiff. By Judge Philip A. Brimmer on 5/9/11.(mnfsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 09-cv-02584-PAB-MJW
CHRISTINA MARQUEZ,
Plaintiff,
v.
HARVEST STANDARD, LLC, a Texas limited liability company, d/b/a/ Harvest Select,
MICHELE PETERSON, and
JENNIFER METZ,
Defendants.

ORDER

This matter is before the Court sua sponte. In her second amended complaint
[Docket No. 28], plaintiff brought false arrest, malicious prosecution, and excessive
bond claims pursuant to 42 U.S.C. § 1983 against defendants Brian Norton and Boyd
Wheelwright, over which the Court exercised original jurisdiction pursuant to 28 U.S.C.
§ 1331. On October 29, 2010, the Court granted summary judgment to defendants
Norton and Wheelwright on plaintiff’s federal claims. See Docket No. 78. Plaintiff’s
state law claims of malicious prosecution, negligence, extreme and outrageous
conduct, and defamation against defendants Michele Peterson, Jennifer Metz, and
Harvest Standard, LLC, as well as a wage and hour violation claim against Harvest
Standard, remain pending. See Docket No. 28; see also Docket No. 107 (Final Pretrial
Order) at 5. Furthermore, Harvest Standard asserts state law counterclaims against
plaintiff for civil theft and conversion. See Docket No. 107 at 7. Pursuant to 28 U.S.C.

§ 1367(a), the Court has supplemental jurisdiction over these state law claims, but “may
decline to exercise supplemental jurisdiction over a claim under subsection (a) if,” as is
the case here, “the district court has dismissed all claims over which it has original
jurisdiction.” 28 U.S.C. § 1367(c)(3).
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

2

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
prepared to rule – both parties would be disadvantaged by the inevitable delay that
would almost certainly result from remand.” Id. at *8. 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
court made no mention of either the complexity or novelty of those state law claims.

3

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.
The Court, however, need not determine what might constitute a compelling
reason to retain jurisdiction over the state law claims in this case.2 Even if it were still
permissible to consider whether the state law claims are ripe for resolution or the
potential delay that would be caused by dismissal of state law claims, the Court is not
presently prepared to rule on the state law claims, and plaintiff’s counsel represented at

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

One compelling reason could be the dismissal of federal claims on the very eve
of trial. See Siegel, Commenatary on 1988 Revision, supra (“Whether a dismissal of
the touchstone claim should bring about a dismissal . . . of the dependent claim for want
of supplemental jurisdiction should hinge on the moment within the litigation when the
dismissal of the touchstone claim takes place, and on the other surrounding
circumstances.”). Even in that instance, however, it is not clear whether the delay and
prejudice occasioned by dismissal would be sufficient to overcome what is the
practically mandatory language of Brooks and Endris.
4

the March 11, 2011 status conference that the parties would likely receive a trial date
more quickly in state court than in this Court, an assertion defense counsel did not
challenge. Furthermore, there is no concern that the state law claims will be barred by
the relevant statutes of limitations. “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.” Brooks, 614 F.3d at 1230 (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”).
Therefore, it is
ORDERED that the remaining claims in this action are DISMISSED without
prejudice. It is further
ORDERED that defendants’ motions for summary judgment [Docket Nos. 86, 87]
are denied without prejudice as moot. It is further
ORDERED that judgment shall enter reflecting summary judgment in favor of
defendants Norton and Wheelwright, see Docket No. 78, and the dismissal without
prejudice of plaintiff’s state law claims against defendants Peterson, Metz, and Harvest
Standard, and defendant Harvest Standard’s state law counterclaims against plaintiff.

5

DATED May 9, 2011.
BY THE COURT:

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

6