Hoffman v. Rowe et al

Filing 9

ORDER granting 3 Motion to Remand to State Court and denying 7 Motion for Attorney's Fees. Signed by Judge Miranda M. Du on 7/30/12.Certified copy of order and copy of docket sheet sent to Sixth Judicial District Court of the State of Nevada. (Copies have been distributed pursuant to the NEF - JC)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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BROOKS HOFFMAN,

Case No. 3:12-cv-00342-MMD-WGC
Plaintiff,

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v.

ORDER

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JAMES ROWE, PERSHING COUNTY
TOURISM AUTHORITY; and COUNTY OF
PERSHING, a political entity,

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Defendant.
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This case comes before this Court through Defendant‟s Petition for Removal.

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(Dkt. no. 1.) Plaintiff has moved to remand. The Court has considered the petition for

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removal and the briefs relating to Plaintiff‟s motion to remand. (Dkt nos. 1, 3-6.) The

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Court has also reviewed Plaintiff‟s motion for attorney‟s fees (dkt. no. 7) and Defendants‟

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opposition to said motion (dkt. no. 8). The Court grants the motion to remand, but

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denies the motion for attorneys‟ fees.

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I.

RELEVANT BACKGROUND

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Plaintiff initiated this case in the Sixth Judicial District Court of the State of

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Nevada in and for the County of Pershing in 2009 after an alleged incident at the

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Lovelock Municipal Swimming Pool.

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on inappropriate conduct that allegedly occurred during and after a water aerobics class

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on July 22, 2008. In a scheduling order issued on June 15, 2002, several days before

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the filing of the petition for removal, the district court set this case for trial commencing

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on December 4, 2012.

Plaintiff was barred from entry to the Pool based

Following summary judgment proceedings, the district court denied Defendants‟

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request for summary judgment on all but two claims

the first claim for declaratory relief

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and the third claim for injunctive relief.1 (See Decision Granting in Part and Denying in

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Part, Defendants‟ Amended Motion for Summary Judgment and Related Orders

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(“Summary Judgment Order,” dkt. no. 3-1.) The court gave Plaintiff twenty (20) days to

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file and serve the Second Amended Complaint to cure the deficiencies as to these two

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claims and directed Plaintiff to email Defendants‟ counsel and the Court if Plaintiff were

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to abandon his request for injunctive relief.

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On June 20, 2012, Plaintiff emailed a copy of the Third Amended Complaint

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(“TAC”) to the court and Defendants‟ counsel.2 Defendants filed the petition for removal

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the next day,3 before the Third Amended Complaint was filed with the district court. As

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a result, the TAC is not part of the official record of the district court before removal.

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In their petition for removal, Defendants sought to invoke this Court‟s original

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jurisdiction under 28 U.S.C. § 1331 on the grounds that the TAC seeks relief arising out

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of the United States Constitution. Plaintiff timely moved to remand.

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II.

DISCUSSION

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A.

Motion to Remand

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Plaintiff argues that because the TAC is a “proposed” amended complaint that

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has not yet been filed with the district court, it is not part of the district court‟s records

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and cannot be used as a basis to invoke federal question jurisdiction.4 Plaintiff further

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The district court denied Defendants‟ request for summary judgment on Plaintiff‟s
claims for defamation, conspiracy to defame and infliction of emotional distress. The
court also granted summary judgment in favor of one defendant, the City of Lovelock.
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The record is not clear as to why Plaintiff referred to his latest complaint as the
“Third Amended Complaint.” The Summary Judgment Order permitted Plaintiff to file a
“Second Amended Complaint.” (Dkt. no. 3-1.)
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Defendants have failed to comply with the Court‟s minute order concerning
removal by filing the statement of removal. (Dkt. no. 2.)
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The Court notes that Plaintiff‟s characterization of the TAC as a “proposed”
complaint is not accurate. The Summary Judgment Order permitted him to file a “Second
(fn. cont…)

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argues that the TAC asserts state law claims which do not depend on resolution of a

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substantial question of federal law. The Court agrees with Plaintiff.

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A defendant may remove an action to federal court if the plaintiff could have

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initially filed the complaint in federal court.

28 U.S.C. § 1441(a).

If removal was

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improper and the federal court lacks jurisdiction, the federal court must remand the case

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to state court. 28 U.S.C. § 1447(c). The district court must resolve all ambiguity in favor

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of removal. Dunham v. Lockheed Martin Corp., 445 F.3d 1247, 1252 (9th Cir. 2006).

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A district court analyzes jurisdiction “on the basis of the pleadings filed at the time

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of removal without reference to subsequent amendments.” Sparta Surgical Corp. v. Nat’l

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Ass’n of Sec. Dealers, Inc., 159 F.3d 1209, 1213 (9th Cir. 1998). The “pleadings filed” at

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the time of removal on June 21, 2012, do not include the TAC. Thus, reviewing the

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“pleadings filed” in the state court action at the time of removal, there is no dispute that

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no federal question was raised.

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Defendants contend that they have complied with the removal procedures

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established at 28 U.S.C. § 1446(b) by seeking to remove upon “receipt” of the TAC.

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However, that statute establishes the timeline for removal, it does not address the

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records upon which the Court considers jurisdiction. Analyzing the pleadings on file with

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the state court as of June 21, 2012, there is clearly no federal question.

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Even setting aside this deficiency, the TAC does not present a federal question to

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invoke jurisdiction. The “presence or absence of federal-question jurisdiction is governed

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by the „well-pleaded complaint rule,‟ which provides that federal jurisdiction exists only

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when a federal question is presented on the face of the plaintiff‟s properly pleaded

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complaint.” Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987). “It is a „long-settled

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understanding that the mere presence of a federal issue in a state cause of action does

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not automatically confer federal-question jurisdiction.” Lippit v. Raymond James Fin.

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(…fn. cont.) Amended Complaint” and ordered him to so do within 20 days unless he

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decided not to pursue the injunctive relief claim. The TAC would have been filed by the
state court clerk but for the removal.

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Services, Inc., 340 F.3d 1033, 1040 (9th Cir. 2003) quoting Merrell Dow Pharmaceuticals,

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Inc. v. Thompson, 478 U.S. 804, 808, 106 S.Ct. 3229 (1986). For example, a complaint

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asserting claims based on wrongful employment termination under state law but alleged

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at the outset that it arises out of laws of the United States (i.e., Title VII) and state laws

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and are based on violation of public policies of the United States and the state do not

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invoke federal question jurisdiction because state laws, not federal laws, create these

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claims. See Rains v. Criterion Sys., Inc., 80 F.3d 339 (9th Cir. 1996)

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The TAC asserts six claims for relief for defamation, breach of contract, breach of

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the implied covenant of good faith and fair dealing and infliction of emotional distress. In

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support of these claims, the TAC appears to track language of the state district court‟s

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order observing that “some due process, including notice and hearing, was due and

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should have been afforded Plaintiff prior to the issuance and service of the „trespass

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notice‟” (see Summary Judgment Order, dkt. no. 3-1 at 7). Clearly, Nevada‟s common

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laws create these claims and the question of federal law is not a necessary element of

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any of these claims.
Motion for Attorney‟s Fees

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B.

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The Court does not find good cause exists to grant Plaintiff‟s motion for attorney‟s

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fees.

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III.

CONCLUSION

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IT IS THEREFORE ORDERED that Plaintiff‟s motion to remand (dkt no. 3) is

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GRANTED and this case is remanded to the Sixth Judicial District Court of the State of

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Nevada, in and for the County of Pershing.

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IT IS FURTHER ORDERED that Plaintiff‟s motion for attorney‟s fees (dkt. no. 7) is
DENIED.
DATED THIS 30th day of July 2012.

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UNITED STATES DISTRICT JUDGE
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