Benton v. Herrera et al
ORDER dismissing the remanded state law claims without prejudice, and directing the closure of this case, by Judge Lewis T. Babcock on 10/30/14. (dkals, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-02668-LTB
RANDY HERRERA, Former Police Chief,
JAMES CHAVEZ, Current Police Chief,
SHARON FAIRCHILD, Acting Town Manager and Clerk,
JOHN CROSS, and
ORDER ON REMANDED STATE LAW CLAIMS
Plaintiff, Denny Benton, resides in Salida, Colorado. He filed, pro se, an
Amended Title VII Complaint (ECF No. 12) asserting employment discrimination claims
under Title VII and the Age Discrimination and Employment Act (ADEA), along with a
claim pursuant to 42 U.S.C. § 1983 that he was deprived of his Fourteenth Amendment
due process rights. (ECF No. 1). Mr. Benton also asserted state law tort claims. (Id).
I. Procedural Background
On March 6, 2014, this Court issued an Order dismissing Mr. Benton’s federal
claims with prejudice. (ECF No. 15). The dismissal order did not address the state law
claims. (Id.). Judgment entered the same day. (Id. at 16). Mr. Benton appealed.
On September 24, 2014, the United States Court of Appeals for the Tenth Circuit
affirmed this Court’s dismissal of Mr. Benton’s federal claims with prejudice. See
Benton v. Town of Southfork, No. 14-1127, 2014 WL 4723710 (10th Cir. Sept. 24, 2014)
(unpublished). The Tenth Circuit also dismissed Plaintiff’s state law claims involving the
Colorado Anti-Discrimination Act, COLO. REV. STAT. (C.R.S.) § 24-34-401, et seq.,
and the Colorado Open Records Act, C.R.S. § 24-72-206, as legally deficient. Id. at
**3-6. However, the Tenth Circuit remanded the case to this Court “to address the
state-law claims involving defamation and legal malpractice.” Id. at *6.
II. Order on Remand
The Court has supplemental jurisdiction over Plaintiff’s state law defamation
claim (against Defendants Herrera, Chavez and Fairchild), and over the legal
malpractice claim (against Defendants Cross and Cook), pursuant to 28 U.S.C.
§ 1367(a).1 The state law claims “form part of the same case or controversy” as the
federal claims. See id.
At this time, the Court declines to exercise supplemental jurisdiction over the
state law claims because all of Mr. Benton’s federal claims have been dismissed. See
28 U.S.C. § 1367(c)(3) (stating that the court may decline to exercise supplemental
jurisdiction if “the district court has dismissed all claims over which it has original
jurisdiction); Smith v. City of Enid By and Through Enid City Com’n, 149 F.3d 1151,
1156 (10th Cir. 1998) (“When all federal claims have been dismissed, the court may,
and usually should, decline to exercise jurisdiction over any remaining state claims,”
Plaintiff may not invoke the federal diversity statute, 28 U.S.C. § 1332, as a basis for this Court to
exercise subject matter jurisdiction over the surviving state law claims because it appears from the
allegations of the Amended Complaint that Plaintiff and all of the Defendants are residents of Colorado.
(See ECF No. 12, at 2). See 28 U.S.C. § 1332(a) (stating that the federal district courts shall have original
jurisdiction over civil actions where the amount in controversy exceeds $75,000 and is between citizens of
different states); Arbaugh v. Y&H Corp., 546 U.S. 500, 513 (2006) (setting forth the requirements of
diversity jurisdiction). See also Penteco Corp. Ltd. Partnership-1985A v. Union Gas Sys., Inc., 929 F.2d
1519, 1521 (10th Cir. 1991) (citations omitted) (recognizing that allegations of diversity must be pleaded
affirmatively to demonstrate federal jurisdiction pursuant to § 1332).
citing 28 U.S.C. § 1367(c)(3)). See also Carlsbad Technology, Inc. v. HIF Bio, Inc., 556
U.S. 635, 640 (2009) (“Upon dismissal of the federal claim, the District Court retained its
statutory supplemental jurisdiction over the state-law claims. Its decision to exercise that
statutory authority [in declining to exercise supplemental jurisdiction over the state-law
claims] was not based on a jurisdictional defect but on its discretionary choice not to
hear the claims despite subject-matter jurisdiction over them.”). Mr. Benton may assert
his claims in the state district court if he so desires.
The Court recognizes that the Colorado statute of limitations applicable to the
the defamation claim one year. See C.R.S. § 13-80-103(1)(a) (actions for libel and
slander must be brought within one year after the cause of action accrues); § 13-80102(h) (all actions against an employee of a public or governmental entity generally
must be brought within two years after the cause of action accrues, except as otherwise
provided in § 13-80-103). The legal malpractice claim is subject to a two-year limitation
period. See C.R.S. § 13-80-102(1)(a). However, assuming that the claims were filed
timely when Mr. Benton initiated this federal court action, he will not be time-barred from
asserting the remaining state law claims in the state district court if he files within thirty
days after entry of this Order. See 28 U.S.C. § 1367(d); see also Varnell v. Dora
Consol. School Dist., 756 F.3d 1208 (10th Cir. 2014).
The Tenth Circuit's decision in Varnell is instructive:
Plaintiff argues that the district court erred when it denied her motion to
remand her state claims back to the state court instead of dismissing them
without prejudice. She complains that if she refiles her state-law claims in
state court, they will now be barred by statutes of limitations. She is
wrong. The problem she anticipates has been alleviated by 28 U.S.C. §
Here, the district court had federal-question jurisdiction under 28 U.S.C.
§ 1331 over the § 1983 and Title IX claims. The court could then exercise
supplemental jurisdiction under § 1367(a) over Plaintiff's state-law claims
because they “form part of the same case or controversy.” 28 U.S.C.
§ 1367(a). Once the federal-law claims were dismissed, however, the
court properly acted under § 1367(c) in declining further supplemental
jurisdiction over the state-law claims. See id. § 1367(c) (court “may
decline to exercise supplemental jurisdiction over a claim under
[§ 1367](a) if . . . the district court has dismissed all claims over which it
has original jurisdiction”). In that event, § 1367(d) provides: “The period
of limitations for any claim asserted under subsection (a) . . . 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.”
Thus, Plaintiff has at least 30 days after dismissal of the state-law
claims to bring suit in state court (assuming that the claim was
originally timely filed). State courts have apparently agreed that tolling
under § 1367(d) continues until any federal appeal is complete. See, e.g.,
Turner v. Kight, 406 Md. 167, 957 A.2d 984, 993–97 (2008); Okoro v. City
of Oakland, 48 Cal.Rptr.3d 260, 142 Cal.App.4th 306, 312–13
(Cal.Ct.App.2006); Huang v. Ziko, 132 N.C.App. 358, 511 S.E.2d 305, 308
Varnell, 756 F.3d at 1217. (Emphasis added).
The Colorado Court of Appeals has recognized the statutory tolling period in 28
U.S.C. § 1367(d). See Dalal v. Alliant Techsystems, Inc., 934 P.2d 830, 834
(Colo.App.1996) (acknowledging that “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,” relying on 28 U.S.C. § 1367(d)). Accordingly, it is
ORDERED that the state law claims of defamation and legal malpractice, which
are the only claims remaining in this action, are DISMISSED WITHOUT PREJUDICE
The Court declines to exercise supplemental jurisdiction over those claims, pursuant to
28 U.S.C. § 1367(c)(3). Mr. Benton may refile those claims in the appropriate state
district court. The state court will decide whether Plaintiff’s defamation and legal
malpractice claims are time-barred. It is
FURTHER ORDERED that the Clerk of the Court is directed to close this case.
DATED October 30, 2014, at Denver, Colorado.
BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court
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