Buneta et al v. Fairmont City IL et al
Filing
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ORDER DENYING Motion to Remand to State Court filed by Cheyenne C Buneta, Terry Buneta (Doc. 7 ). Signed by Judge Staci M. Yandle on 10/26/2016. (mah).
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
CHEYENNE C. BUNETA and
TERRY BUNETA,
Plaintiff,
vs.
FAIRMONT CITY, ILLINOIS,
TERESA SUAREZ, ROJAS VEGA,
FRANCISCO BARAJAS, PANLINO
ROSAS and MIROSLAVA JUAREZDE
BARAJAS
Defendants.
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Case No. 16-CV-794-SMY-DGW
MEMORANDUM AND ORDER
Plaintiffs Cheyenne Buneta and Terry Buneta filed this action in the Circuit Court of St.
Clair County, Illinois seeking damages against Defendants Fairmont City, Illinois, Teresa
Suarez, Rojas Vega, Francisco Barajas, Panlino Rosas, and Miroslava Juarezde Barajas 1.
Defendants Fairmont City and Teresa Suarez removed the action to this Court asserting federal
question jurisdiction pursuant to 28 U.S.C. § 1331. Now pending before the Court is Plaintiffs’
Motion to Remand (Doc. 7). Defendants Fairmont City and Suarez filed an Amended Notice of
Removal (Doc. 8) and a response (Doc. 9). Defendants Francisco Barajas, Panlino Rosas, and
Miroslava Juarezde Barajas filed consents to removal (Docs. 11, 15). For the following reasons,
the motion to remand is DENIED.
Plaintiffs rent space and sell soap at a flea market operated by Fairmont City. Plaintiffs
allege that Defendants Suarez, Vega, the Barajas and Rosas are their competitors at the flea
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Defendant Miroslava Juarezde Barajas is incorrectly named as Miroslava Juarezde Baragos. The Clerk
is DIRECTED to correct Ms. Barajas name on the docket.
market. Plaintiffs, who are Caucasian, allege that Defendants, who are “non-white Hispanics,”
have committed acts of battery and assault upon Plaintiffs, but Fairmont City has failed to do
anything. In Count I of the Complaint, Plaintiffs assert claims against the Fairmont City Police
Department pursuant to the Illinois Civil Rights Act of 2003. In Count II, Plaintiffs allege that
Plaintiff Cheyenne Buneta was wrongfully arrested by Defendant Teresa Suarez, a police officer
employed by Defendant Fairmont City, for allegedly utilizing racial slurs. Plaintiffs deny using
racial slurs, but assert that even if Cheyenne Buneta did, she had a fundamental Constitutional
right to do so. In Count III, Plaintiffs allege that Defendant Suarez arrested Cheyenne Buneta
without probable cause. In Count V, Plaintiffs allege that the defendants conspired together to
tortuously interfere with Plaintiffs’ soap business at the flea market in violation of Illinois law.
Federal district courts have original jurisdiction of “all civil actions arising under the
Constitution, laws or treaties of the United States.” 28 U.S.C. § 1331. In assessing the propriety
of removal based on federal question jurisdiction, the district court applies the well-pleaded
complaint rule which provides that such jurisdiction exists “only when the federal question is
presented on the face of the plaintiff's properly pleaded complaint.” Jass v. Prudential Health
Care Plan, Inc., 88 F.3d 1482, 1486 (7th Cir. 1996).
Plaintiffs do not deny that the Complaint presents federal questions.
Specifically,
Plaintiffs allege that Defendant Suarez, an officer of the Fairmont City Police Department,
unlawfully arrested Cheyenne Buneta for disorderly conduct on the purported basis that she used
racial slurs. Plaintiffs assert the arrest was in violation of their freedom of speech protected
under the First Amendment as incorporated against the states pursuant to the Fourteenth
Amendment. Plaintiffs also assert that no probable cause existed for the arrest. These claims fall
under the Court's original jurisdiction.
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Moreover, the Court can exercise its supplemental jurisdiction over Plaintiffs’ state law
claims against the remaining Defendants. A court has supplemental jurisdiction over state-law
claims “that are so related to claims in the action within such original jurisdiction that they form
part of the same case or controversy under Article III of the United States Constitution.” 28
U.S.C. § 1367(a). “Claims form part of the same case or controversy when they derive from a
common nucleus of operative fact.” McCoy v. Iberdrola Renewables, Inc., 760 F.3d 674, 683
(7th Cir. 2014). This standard is not particularly demanding, and a “loose factual connection
between the claims is generally sufficient.” Id. (citation and internal quotation marks omitted).
Thus, “[d]ifferent causes of action between the same parties that arise from the…the same events
will ordinarily be part of the same case or controversy. Id.
Here, Plaintiffs’ state-law claims arise out of the same set of facts as plaintiffs’ federal
claims: Plaintiffs have allegedly been subjected to harassment and discrimination, including an
unlawful arrest, by the Defendants while trying to sell soap at a flea market operated by Fairmont
City. Thus, all of Plaintiffs' claims arise from the same common nucleus of operative facts,
which gives the Court supplemental jurisdiction over Plaintiffs' state-law claims.
Plaintiffs’ sole argument is that Defendants Francisco and Miroslava Barajas, Vega and
Rosas did not consent to the removal. Plaintiffs are correct that removal is only proper if all
defendants who have been served at the time the removal notice is filed consent to the removal.
See Shaw v. Dow Brands, Inc., 994 F.2d 364, 368–69 (7th Cir. 1993) (internal citations omitted).
At the time Defendants Fairmont City and Suarez filed their notice of removal, Defendants
Rosas, Fransciso Barajas, and Miroslava Barajas had been served. The original notice, however,
did not have the requisite consent of all served Defendants. However, a defendant may freely
amend the notice of removal for thirty days after a defendant receives a copy of the state court
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complaint, or is served, whichever comes first. See 28 U.S.C. § 1446(b). After Plaintiffs filed
their motion to remand, Defendants Fairmont City and Suarez filed an amended notice of
removal in which they received the consent of all served Defendants. The amended notice of
removal was filed within thirty days of the original notice of removal. Moreover, Defendants
Rosas, Fransciso Barajas, and Miroslava Barajas filed separate consents to the removal within
the required time period (see Docs. 11, 15). Accordingly, Plaintiffs’ argument is rejected and the
motion to remand is denied.
IT IS SO ORDERED.
DATED: October 26, 2016
s/ Staci M. Yandle
STACI M. YANDLE
United States District Judge
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