Gahafer v. E & M International, Inc.

Filing 10

ORDER ADOPTING 8 REPORT AND RECOMMENDATIONS by District Judge Martha Vazquez. IT IS THEREFORE ORDERED: (1) The Court ADOPTS Magistrate Judge Yarbrough's Proposed Findings and Recommended Disposition (Doc. 8 ). (2) Pursuant to 28 U.S.C. § 1447(c), this matter is hereby remanded to the Second Judicial District Court of New Mexico. (gr)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
ANDREW GAHAFER,
Plaintiff,
v.

Case No. 17-1165 MV/SCY

E & M INTERNATIONAL, INC.,
Defendant.

ORDER ADOPTING MAGISTRATE JUDGE’S PROPOSED FINDINGS AND
RECOMMENDED DISPOSITION
THIS MATTER comes before the Court on Defendant’s objections (Doc. 9) to
Magistrate Judge Yarbrough’s Proposed Findings and Recommended Disposition (PFRD) (Doc.
8). In his PFRD, Magistrate Judge Yarbrough recommended concluding that because no federal
cause of action was asserted on the face of Plaintiff’s Complaint and because Plaintiff’s claims
do not implicate substantial questions of federal law, this case must be remanded to state court
for lack of subject matter jurisdiction. Doc. 8. For the following reasons, the Court rejects
Defendant’s Objections (Doc. 9) to Magistrate Judge Yarbrough’s PFRD and therefore adopts
the PFRD. The Court will accordingly remand this matter to state court.
Defendant removed this matter to federal court on November 27, 2017. Doc. 1.
Defendant alleged in the Notice of Removal that Plaintiff’s claims arose under the Americans
with Disabilities Act (ADA), 42 U.S.C. 12101 et. seq. Doc. 1. On December 5, 2017, Magistrate
Judge Yarbrough issued an Order to Show Cause concluding that Plaintiff’s claims do not arise
under the ADA and directing Defendant to show cause as to why the case should not be
remanded due to a lack of subject matter jurisdiction. Doc. 4. Defendant responded on December
18, 2017, and contended that the case was appropriately removed. Doc. 6. Magistrate Judge

Yarbrough thereafter filed the PFRD addressing Defendant’s objections to the Order to Show
Cause and recommending that this case be remanded. Doc. 8. The Court now addresses
Defendant’s objections to the PFRD. Doc. 9.
Defendant’s first objection takes issue with Magistrate Judge Yarbrough’s recommended
finding that Plaintiff did not assert a cause of action under the Americans with Disabilities Act
(ADA), 42 U.S.C. 12101 et. seq. Doc. 9 at 1. Defendant contends that this finding is erroneous
because Plaintiff filed a charge with the EEOC and because Plaintiff alleged in his Complaint
that he was terminated because of his disability.
The Court first notes that Defendant’s contention regarding the allegations in Plaintiff’s
Complaint is misleading. In briefing, Defendant quotes Plaintiff’s Complaint thusly: “Plaintiff
was terminated because of his disability. [ADA].” Doc. 9 at 2. Plaintiff’s Complaint, however,
only states that “he was terminated because of his disability.” Doc. 1-1 at ¶ 5. Although the
Court recognizes that bracketed material often indicates an alteration to the quoted material,
Defendant’s addition of “[ADA]” is misleading when the issue being determined is whether
Plaintiff pled a cause of action under the ADA. In fact, the need for Defendant to add this
bracketed material seems to confirm Judge Yarbrough’s recommended finding that no reference
to the ADA appears anywhere in Plaintiff’s Complaint.
Nevertheless, based on the Court’s own review of Plaintiff’s Complaint, the Court agrees
with Magistrate Judge Yarbrough’s PFRD and accordingly rejects Defendant’s contention on
this point. As Magistrate Judge Yarbrough has repeatedly explained, for purposes of federal
question jurisdiction, “[a] case arises under federal law if its well-pleaded complaint establishes
either that federal law creates the cause of action or that the plaintiff’s right to relief necessarily
depends on resolution of a substantial question of federal law.” Morris v. City of Hobart, 39 F.3d

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1105, 1111 (10th Cir. 1994) (internal quotation marks omitted). Plaintiff’s Complaint indicates
that he is attempting to appeal an order of non-determination by the Department of Workforce
Solutions pursuant to NMSA 1978, § 28-1-13. Plaintiff further asserts two state law causes of
action. The first claim is under NMSA 1978, § 28-1-7(I) for terminating Plaintiff due to his
disability and the second is under the same provision for retaliation. Doc. 1-1 at ¶¶ 8, 9. None of
these are federal claims.
Furthermore, the allegation that Defendant argues evidences Plaintiff’s claim under the
ADA does not even appear in the “Causes of Action” section of his Complaint but is instead set
out in the factual background of the Complaint. Thus, even construing the allegation as a
reference to the ADA would not necessarily lead to the conclusion that Plaintiff was asserting a
cause of action under the ADA. Regardless, for the reasons above, the Court does not construe it
as a reference to the ADA and the Court cannot make it any clearer for Defendant that neither
Plaintiff’s allegation that he was terminated due to a disability nor the fact that he filed a charge
with the EEOC changes the fact that Plaintiff did not ultimately bring a cause of action under the
ADA. The Court accordingly agrees with Magistrate Judge Yarbrough that no federal cause of
action is pled on the face of Plaintiff’s Complaint.
Second, it is similarly immaterial to the Court’s determination of jurisdiction whether or
not Plaintiff appropriately exhausted his state or federal administrative remedies. The
determination of whether Plaintiff’s state law causes of action are viable in the event he failed to
appropriately exhaust state law administrative remedies has no bearing on whether this Court has
jurisdiction. Likewise, even if Plaintiff appropriately exhausted federal administrative remedies
but declined to assert a cause of action under the ADA, the Court still does not have jurisdiction
because Plaintiff did not assert those claims. As Magistrate Judge Yarbrough explained, the

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Court cannot construe Plaintiff’s Complaint as containing a cause of action he did not assert
regardless of the administrative steps Plaintiff complied with to assert the cause of action. See
Doc. 8 at 3 (citing Heckelmann v. Piping Companies, Inc., 904 F. Supp. 1257, 1260 (N.D. Okla.
1995). The Court therefore rejects Defendant’s objection on this point.
Finally, the Court rejects Defendant’s objection regarding Magistrate Judge Yarbrough’s
recommended conclusion that a substantial question of federal law is not presented in Plaintiff’s
Complaint. Defendant’s objections on this point remain premised on his contention that either
the EEOC charge constitutes a federal cause of action or that Plaintiff cannot appropriately assert
the state law causes of action because he failed to exhaust his state administrative remedies. See
Doc. 9 at 3-5. As concluded above, neither of these contentions has merit in regard to the
determination of federal jurisdiction in this case.
In sum, the Court rejects Defendant’s objections. For the reasons stated in both
Magistrate Judge Yarbrough’s Order to Show Cause (Doc. 4) and his PFRD (Doc. 8), the Court
therefore concludes that it lacks subject matter jurisdiction over Plaintiff’s Complaint. Plaintiff
did not assert a cause of action under the ADA as alleged by Defendant in its Notice of Removal
(Doc. 1). Furthermore, the resolution of Plaintiff’s state law causes of action does not necessarily
depend on the resolution of a substantial question of federal law. Accordingly, this matter must
be remanded.
IT IS THEREFORE ORDERED:
(1) The Court ADOPTS Magistrate Judge Yarbrough’s Proposed Findings and
Recommended Disposition (Doc. 8).

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(2) Pursuant to 28 U.S.C. § 1447(c), this matter is hereby remanded to the Second
Judicial District Court of New Mexico.

HONORABLE MARTHA VÁZQUEZ
UNITED STATES DISTRICT JUDGE

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