Favela v. Las Cruces Police Department et al

Filing 121

MEMORANDUM OPINION re 84 MOTION for Summary Judgment and 120 Order on Motion for Summary Judgment by District Judge James O. Browning. (vv)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
RUBEN O. FAVELA,
Plaintiff,
vs.

No. CIV 17-0568 JB\SMV

CITY OF LAS CRUCES ex rel. LAS CRUCES
POLICE DEPARTMENT; LAS CRUCES POLICE
OFFICERS MATTHEW DOLLAR and MANUEL
SOTO; PHC-LAS CRUCES, INC., a New Mexico
Corporation, d/b/a MEMORIAL MEDICAL
CENTER; DANIELLE WILHELM, M.D.; JAMES
PROCTOR, R.N.; JAMIE PITTS, R.N.;
JOSE REVELES, R.N.; CASSANDRIA
BRANCH, R.N., and JOHN DOE SECURITY
GUARDS 1 and 2,
Defendants.
MEMORANDUM OPINION 1
THIS MATTER comes before the Court on the Defendants’ Motion for Summary
Judgment, filed September 13, 2019 (Doc. 84)(“MSJ”). The Court held a hearing on November 1,
2019. See Clerk’s Minutes, filed November 1, 2019 (Doc. 117). The primary issue is whether,
given that the Court has dismissed all federal claims in this case, the Court should decline to
exercise supplemental jurisdiction over the remaining state law claims. The Court concludes that
it will not exercise supplemental jurisdiction, because: (i) Plaintiff Ruben O. Favela has agreed
that summary judgment is appropriate for Counts II, III, IV, VIII, and IX against Defendant Jamie

1

The Court previously entered an Order Granting In Part Defendants’ Motion for Summary
Judgment and Remanding Cause to State Court, filed January 6, 2019 (Doc. 120)(“Remand
Order”), granting the requests in the Defendants’ Motion for Summary Judgment, filed September
13, 2019 (Doc. 84). In the Remand Order, the Court declines to exercise supplemental jurisdiction
over remaining state law claims and remands the case. This Memorandum Opinion details the
Court’s rationale for the previous Remand Order.

Pitts, R.N., for Counts II, III, and IV against Defendants Memorial Medical Center, James Proctor,
R.N., Jose Reveles, R.N., and Cassandria Branch, R.N., and for Counts VI and VII against
Memorial Medical; (ii) all federal claims have been dismissed; (iii) the Court has dismissed all
claims over which it has original jurisdiction; and (iv) New Mexico courts are better suited to
resolve the remaining state-law claims. Accordingly, the Court remands the case. 2
FACTUAL BACKGROUND
The Court draws the factual background from the parties’ undisputed material facts in the
Defendants’ Motion and Supporting Memorandum for Qualified Immunity and Summary
Judgment, filed February 6, 2018 (Doc. 30)(“Motion”); the Response to Defendants’ Motion and
Supporting Memorandum for Qualified Immunity and Summary Judgment, filed March 15, 2018
(Doc. 36)(“Response”); and the Defendants’ Reply in Support of Motion and Supporting
Memorandum for Qualified Immunity and Summary Judgment, filed March 29, 2018
(Doc. 37)(“Reply”). The facts of this case are essentially undisputed. See Response at 2 (disputing
only one of Matthew Dollar and Manuel Soto’s thirty-nine proffered material facts); Reply ¶¶ 1-9,
at 2 (not disputing the substantive content of Favela’s twenty-four proffered material facts).
On April 13, 2016, Dollar, a police officer with the Las Cruces Police Department,
observed Favela riding his motorcycle at approximately ninety miles per hour through an
intersection that had a posted speed limit of thirty-five miles per hour. See Motion ¶¶ 1-2, at 4
(setting forth this fact)(citing Affidavit of Matthew Dollar ¶¶ 3-7, at 1-2 (dated February 1, 2018),
filed February 6, 2018 (Doc. 30-1)(“Dollar Aff.”)); Response at 2 (not disputing this fact). Upon
seeing Favela, Dollar activated the emergency lights on his police car and pursued Favela for a

2

The Court determines that Defendant Danielle Wilhelm, M.D. was never served, and,
therefore, the Court dismisses without prejudice all claims against Dr. Wilhelm.

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distance, pacing Favela at approximately seventy-five miles per hour. See Motion ¶¶ 3-4, at 4
(setting forth this fact)(citing Dollar Aff. ¶¶ 8-9, at 2); Response at 2 (not disputing this fact).
Favela eventually slowed after Dollar activated the sirens on his police car, but he did not stop for
another nine blocks, at which point Favela made a sharp U-turn and stopped his motorcycle on a
city sidewalk in a position directly in front of Dollar’s police car. See Motion ¶¶ 4-5, at 4 (setting
forth this fact)(citing Dollar Aff. ¶¶ 9-10, at 2); Response at 2 (not disputing this fact). Dollar
informed dispatch of his location, requested additional officers, and parked his police car in front
of Favela, who had not yet dismounted his motorcycle or shut off its power. See Motion ¶¶ 6-8,
at 4 (setting forth this fact)(citing Dollar Aff. ¶¶ 11-15, at 2); Response at 2 (not disputing this
fact). Dollar then exited his police car with his sidearm drawn and ordered Favela to cut the power
to his motorcycle. See Motion ¶ 8, at 4 (setting forth this fact)(citing Dollar Aff. ¶¶ 13-15, at 2);
Response at 2 (not disputing this fact). After starting his motorcycle engine, Favela complied, at
which point Dollar holstered his sidearm. See Motion ¶ 8, at 4 (setting forth this fact)(citing Dollar
Aff. ¶¶ 13-15, at 2); Response at 2 (not disputing this fact).
After Favela had shut off the power to this motorcycle, Dollar activated his lapel footage.
See Motion ¶ 9, at 5 (setting forth this fact)(citing Dollar Aff. ¶¶ 5,16, at 2; Matthew Dollar Lapel
Video 1 at 00:35-00:40 (dated April 13, 2016), filed February 6, 2018 (Doc. 30-1)(“Dollar
Video 1”)); Response at 2 (not disputing this fact). As Favela dismounted his motorcycle, Dollar
noticed what he believed to be a handgun protruding from underneath Favela’s jacket. See Motion
¶¶ 10, 15, at 5 (setting forth this fact)(citing Dollar Aff. ¶¶ 17, 22, at 2-3; Dollar Video 1 at 03:4504:00, 01:30-01:35); Response at 2 (not disputing this fact). Upon seeing the weapon, Dollar
ordered Favela to turn around so Dollar could pat him down. See Motion ¶ 11, at 5 (setting forth
this fact)(citing Dollar Aff. ¶¶ 18 at 3; Dollar Video 1 at 00:35-00:40); Response at 2 (not disputing

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this fact). Dollar eventually threatened to taser Favela before Dollar was able to pat down Favela.
See Motion ¶¶ 11-13, at 5 (setting forth this fact)(citing Dollar Aff. ¶¶ 18-20, at 3; Dollar Video 1
at 00:30-00:45, 00:40-01:00); Response at 2 (not disputing this fact). Dollar then secured the
handgun on Favela’s person and placed Favela in handcuffs. See Motion ¶¶ 13-15, at 5 (setting
forth this fact)(citing Dollar Aff. ¶¶ 20-22, at 3; Dollar Video 1 at 00:40-01:00, 01:15-01:20,
01:30-01:35); Response at 2 (not disputing this fact). During this time, Favela began sweating
profusely in a manner that indicated to Dollar that Favela was under the influence of an intoxicating
substance. See Motion ¶ 16, at 5 (setting forth this fact)(citing Dollar Aff. ¶ 23, at 3; Dollar Video
1 at 01:50-1:55); Response at 2 (not disputing this fact). Dollar then placed Favela in the back of
his police car. See Motion ¶ 17, at 5 (setting forth this fact)(citing Dollar Video 1 at 01:50-01:55);
Response at 2 (not disputing this fact).
Once in the back of Dollar’s police car, Favela said that he was hot and felt that he may
pass out. See Motion ¶ 19, at 6 (setting forth this fact)(citing Dollar Aff. ¶ 25, at 3; Dollar Video
1 at 03:30-05:10); Response at 2 (not disputing this fact). Favela repeatedly requested that Dollar
take off Favela’s jacket and neckband. See Motion ¶ 19, at 6 (setting forth this fact)(citing Dollar
Aff. ¶ 25, at 3; Dollar Video 1 at 03:30-05:10); Response at 2 (not disputing this fact). After
waiting for backup to arrive, Dollar removed Favela’s neckband and opened the police car’s door
for Favela. See Motion ¶ 21, at 6 (setting forth this fact)(citing Dollar Aff. ¶ 26, at 3; Dollar Video
1 at 05:20-06:45); Response at 2 (not disputing this fact). Dollar then attempted to read Favela his
Miranda 3 rights; Favela, however, passed out in the back of Dollar’s police car as his Miranda

3

Miranda v. Arizona, 384 U.S. 436 (1966), “requires that procedural safeguards be
administered to a criminal suspect prior to ‘custodial interrogation.’” United States v. Perdue, 8
F.3d 1455, 1463 (10th Cir. 1993)(quoting Miranda v. Arizona, 384 U.S. at 444). The Supreme

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rights were read to him. See Motion ¶¶ 22-23, at 6 (setting forth this fact)(citing Dollar Aff. ¶ 2729, at 3; Dollar Video 1 at 07:10-07:45, 08:00-08:15); Response at 2 (not disputing this fact). At
this point, other officers at the scene contacted emergency services to tend to Favela. See Motion
¶ 23, at 6 (setting forth this fact)(citing Dollar Aff. ¶¶ 28-29, at 3; Dollar Video 1 at 08:00-08:15);
Response at 2 (not disputing this fact). Officers removed Favela from the back of Dollar’s police
car and laid Favela on the sidewalk while waiting for emergency services. See Motion ¶ 25, at 6
(setting forth this fact)(citing Dollar Aff. ¶ 30, at 4; Dollar Video 1 at 10:20-10:45); Response at 2
(not disputing this fact). Favela faded in and out of consciousness while being moved from the
police car to the sidewalk. See Motion ¶ 25, at 6 (setting forth this fact)(citing Dollar Aff. ¶ 30, at
4; Dollar Video 1 at 10:20-10:45); Response at 2 (not disputing this fact).
While the officers were waiting for emergency personnel, Dollar requested that dispatch
run a “Triple-I” check 4 on Favela to determine whether Favela had any warrants. Motion ¶ 24,

Court of the United States of America provided the substance of the warning that must be given to
a defendant to meet these procedural safeguard requirements:
Prior to any questioning, the person must be warned that he has a right to remain
silent, that any statement he does make may be used as evidence against him, and
that he has a right to the presence of an attorney, either retained or appointed. The
defendant may waive effectuation of these rights, provided the waiver is made
voluntarily, knowingly and intelligently. If, however, he indicates in any manner
and at any stage of the process that he wishes to consult with an attorney before
speaking there can be no questioning. Likewise, if the individual is alone and
indicates in any manner that he does not wish to be interrogated, the police may not
question him.
Miranda v. Arizona, 384 U.S. at 444-45.
4

An Interstate Identification Index report, or “Triple-I report,” provides law enforcement
with information regarding an individual’s criminal history and previous police encounters. See
Courtney v. Oklahoma, 722 F.3d 1216, 1221 (10th Cir. 2013). The Court offers this information
solely as background for the reader’s edification, and not as the truth or as a fact material to the
issues in this opinion.

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at 6 (setting forth this fact)(citing Dollar Aff. ¶ 30, at 4; Dollar Video 1 at 13:10-13:50).
See Response at 2 (not disputing this fact). While waiting for this information from dispatch,
Dollar informed other officers at the scene that Favela would be under arrest regardless what
dispatch informed, because Favela had concealed a firearm without a permit. See Motion ¶ 27,
at 7 (setting forth this fact)(citing Dollar Aff. ¶ 31, at 4; Dollar Video 1 at 16:20-16:20); Response
at 2 (not disputing this fact). Dispatch then informed Dollar that Favela had a previous felony
conviction for shooting from a vehicle. See Motion ¶ 26, at 7 (setting forth this fact)(citing Dollar
Aff. ¶¶ 30-32; Dollar Video 1 at 17:15-17:25; Response at 2 (not disputing this fact).
Once emergency services arrived on the scene, Favela was loaded into an ambulance.
See Motion ¶¶ 28-29, at 7 (setting forth this fact)(citing Affidavit of Manuel Soto ¶¶ 6-8, at 1-2
(dated February 5, 2018), filed February 6, 2018 (Doc. 30-2)(“Soto Aff.”); Officer Manuel Soto
Lapel Video 1 at 04:40-05:10, 13:30, 16:45-17:05 (dated April 13, 2016), filed February 6, 2018
(Doc. 30-2)(“Soto Video 1”); Dollar Aff. ¶ 33, at 4; Officer Matthew Dollar Video 2
at 00:45-01:45 (dated April 13, 2016), filed February 6, 2018 (Doc. 30-1)(“Dollar Video 2”));
Response at 2 (not disputing this fact). At this point, Favela regained consciousness and began
asking what happened. See Motion ¶ 29, at 7 (setting forth this fact)(citing Dollar Aff. ¶ 33, at 4;
Dollar Video 2 at 00:45-01:45); Response at 2 (not disputing this fact). Dollar informed Favela
that he was under arrest for concealing a firearm and that officers were further investigating Favela
as a felon in possession of a firearm. See Motion ¶ 29, at 7 (setting forth this fact)(citing Dollar
Aff. ¶ 33, at 4; Dollar Video 2 at 00:45-01:45); Response at 2 (not disputing this fact). Favela was
further informed that he could either leave the ambulance if he answered the emergency
personnel’s questions or go to the hospital if he did not answer their questions. See Motion ¶ 30,
at 7 (setting forth this fact)(citing Dollar Video 2 at 00:45-01:45); Response at 2 (not disputing

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this fact). Favela was instructed that he was going to jail regardless whether he answered
emergency personnel’s questions. See Motion ¶ 30, at 7 (setting forth this fact)(citing Dollar
Video 2 at 00:45-01:45); Response at 2 (not disputing this fact). Favela refused to answer
questions, and emergency personnel accordingly transported Favela to Memorial Medical Center
(“Memorial Medical”). See Motion ¶ 31, at 7 (setting forth this fact)(citing Dollar Aff. ¶ 34, at 4);
Response at 2 (not disputing this fact). Dollar remained at the scene and Soto, an officer with the
Las Cruces Police Department, followed Favela and emergency personnel to Memorial Medical.
See Motion ¶ 32, at 7 (setting forth this fact)(citing Dollar Aff. ¶ 34, at 4); Response at 2 (not
disputing this fact). Dollar no longer had any contact with Favela. See Transcript of Hearing at
9:14-21 (taken July 2, 2018)(Court, Coronado, Martinez), filed October 31, 2018 (Doc. 52)(“July 2
Tr.”)(noting the fact’s undisputed nature).
Staff at Memorial Medical informed Favela that they would need a blood test and a urine
sample to clear him for transportation to the jail. See Motion ¶ 35, at 8 (setting forth this
fact)(citing Soto Aff. at ¶¶ 13-14, at 2; Officer Manuel Soto Lapel Video 2 at 00:45-01:00, 01:1501:25 (dated April 13, 2016), filed February 6, 2018 (Doc. 30-2)(“Soto Video 2”)); Response at 2
(not disputing this fact). Favela also was informed that his failure to give a urine sample would
result in staff catheterizing Favela to collect the urine. See Motion ¶ 35, at 8 (setting forth this
fact)(citing Soto Aff. at ¶¶ 13-14, at 2; Soto Video 2 at 00:45-01:00, 01:15-01:25); Response at 2
(not disputing this fact). Soto was standing in the doorway of the hospital room while Memorial
Medical staff attempted to collect urine samples from Favela. See Response ¶ 15, at 4 (setting
forth this fact)(citing Soto Video 2); Reply ¶ 6, at 2 (admitting this fact). Favela was handcuffed
to a floor mattress with Soto’s police-issued handcuffs. See Response ¶ 2, at 2 (setting forth this
fact)(citing Soto Video 2); Reply ¶ 1, at 2 (admitting this fact). Favela was provided with water

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so he could provide a urine sample. See Response ¶ 10, at 3 (setting forth this fact)(citing
Transcript of Officer Manuel Soto’s April 13, 2016 Lapel Video at 4:1-2, filed March 3, 2018
(Doc. 36-1)(“Tr. of Soto Lapel”)); Reply ¶ 3, at 2 (admitting this fact). Favela became agitated,
began screaming and crying, and had to be restrained by seven male nurses. See Response ¶ 13,
at 3 (setting forth this fact)(citing Tr. of Soto Lapel at 7:16-25, 8:1-25; Soto Video 2); Reply ¶ 4,
at 2 (admitting this fact). At this point, Soto entered the hospital room and removed Favela’s
handcuffs, and Memorial Medical staff placed Favela in soft restraints. See Response ¶ 14, at 4
(setting forth this fact)(citing Tr. of Soto Lapel at 8:5-13; Soto Video 2); Reply ¶ 7, at 2 (not
disputing this fact). While Favela was placed in soft restraints, Soto received an incoming call on
his cellular telephone. See Response ¶ 16, at 4 (setting forth this fact)(citing Tr. of Soto Lapel
at 9:12); Reply ¶ 4, at 2 (not disputing this fact). This call informed Soto that the District Attorney
was not going to charge Favela with felony possession of a deadly weapon, because the District
Attorney was waiting on a report regarding Favela’s felony status. See Motion ¶ 38, at 8 (setting
forth this fact)(citing Soto Aff. ¶¶ 18-19, at 2-3; Soto Video 2 at 06:55-07:45); Response at 2 (not
disputing this fact). After receiving this information, Soto remained in the room with Favela while
Memorial Medical staff attempted to collect a urine sample from Favela. See Response ¶ 23, at 4-5
(setting forth this fact)(citing Tr. of Soto Lapel at 12:1-25; Soto Video 2); Reply ¶ 8, at 2 (admitting
this fact).

Favela was not willing to provide a urine sample, so Memorial Medical staff

subsequently used a straight catheter on Favel to obtain a urine sample. See July 2 Tr. at 9:2-8
(Coronado)(stating a catheterization of Favela occurred at Memorial Medical); id. at 11:19-25
(Martinez)(noting the undisputed nature of this fact). 5 As Favela was not yet charged, Favela was

5

The Court derives support for this fact from the hearing held on July 2, 2018, because
neither the Motion nor the Response sets forth as undisputed fact that Favela was catheterized. It

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then released from the hospital of his own recognizance. See Motion ¶ 38, at 8 (setting forth this
fact)(citing Soto Aff. at ¶¶ 18-19, at 2-3; Soto Video 2 at 06:55-07:45); Response at 2 (not
disputing this fact).
PROCEDURAL BACKGROUND
Favela filed his Complaint in New Mexico state court on May 2, 2017. See Complaint to
Recover Damages for Deprivation of Civil Rights and Personal Injury at 1, filed May 18, 2017
(Doc. 1-1)(“Complaint”).

He brings nine counts against the Defendants.

See Complaint

¶¶ 63-107, at 9-15. In Count I, Favela alleges Defendants City of Las Cruces, Dollar, and Soto
violated his rights under the Fourth Amendment of the Constitution of the United States of
America by detaining him for an unreasonable amount of time without probable cause, constituting
a constructive arrest, and bringing him to Memorial Medical to conduct a search of his body
without a warrant. See Complaint ¶¶ 63-69, 72, at 9-10. In Count II, Favela alleges that Dollar,
Soto, and the Memorial Medical Defendants -- Memorial Medical, and Defendants Dr. Danielle
Wilhelm, Jamie Pitts, R.N., James Proctor, R.N., Jose Reveles, R.N., and Cassandria Branch, R.N.
-- violated Favela’s rights under the Fourth Amendment to the Constitution by forcibly inserting a
straight catheter 6 without a valid arrest or law enforcement authority. See Complaint ¶¶ 75-78,

is apparent, however, from the Motion, Response, Reply, and the July 2, 2018, hearing that the
parties do not dispute that Favela was catheterized. The Court finds no basis to determine that
Favela was not catheterized and will accept Favela’s catheterization as an undisputed fact despite
the parties’ failure to provide support. See Fed. R. Civ. P. 56(e)(2); N.M. Consol. Constr, LLC v.
City Council of the City of Santa Fe, 97 F. Supp. 3d 1287, 1292 n.6 (D.N.M.
2015)(Browning, J.)(accepting a fact as undisputed pursuant to Rule 56(e)(2), because it was not
disputed, and the Court had no independent reason to doubt its accuracy).
6

A straight catheter “is a soft, thin tube used to pass urine from the body.” What is a
Straight Catheter?, Home Care Delivered®, https://www.hcd.com/urology/straight-catheter/ (last
visited December 31, 2019). The straight catheter, usually made of PVC plastic, is “inserted
through the urethra and into the bladder.” What is a Straight Catheter?, supra. Straight catheters

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at 10. In Count III, Favela alleges Dollar, Soto, and the Memorial Medical Defendants violated
his Fourth Amendment rights by extracting his urine without probable cause or a warrant.
See Complaint ¶¶ 81-84, at 11. Favela alleges in Count IV that the Memorial Medical Defendants
breached their duty to conform to professional standards by forcibly obtaining Favela’s urine
sample without consent or probable cause via straight catheterization. See Complaint ¶¶ 87-89,
at 11-12. In Count V, Favela alleges that Memorial Medical and Dr. Wilhelm, M.D., failed to
obtain his informed consent to treatment, as the law requires, or that they should have known it
was given “under duress and/or revoked by Plaintiff prior to treatment,” Complaint ¶ 95, at 13,
and thus “failed to comport with professional standards,” Complaint ¶ 96, at 13. See id. ¶¶ 93-96,
at 13. In Count VI, Favela alleges that, if Dr. Wilhelm is not Memorial Medical’s employee,
Memorial Medical was negligent in selecting Dr. Wilhelm as a staff physician and granting her
staff privileges, or, alternatively, that Memorial Medical was negligent in failing to supervise
Dr. Wilhelm and determining whether she possessed the care and skill an emergency room doctor
requires. See Complaint ¶¶ 99-100, at 13-14. In Count VII, Favela alleges that Memorial Medical
and Dr. Wilhelm are “engaging in commerce by providing services,” that the New Mexico Unfair
Practices Act, N.M. Stat. Ann. §§ 57-12-1 to-26 (“NMUPA”), binds them, and that they violated
the NMUPA by “engaging in unconscionable trade practices” when they billed Favela for a
medical service he refused and did not request. Complaint ¶¶ 101-04, at 14. In Count VIII, Favela
alleges that Soto, Memorial Medical, Dr. Wilhelm, and Memorial Medical personnel acted in
concert to commit assault and battery against Favela by physically inserting a straight catheter into
him to extract urine. See Complaint ¶¶ 108-11, at 15. Finally, Favela alleges in Count IX that

do not attach to a collection bag, and consist of the PVC tubing attached to a funnel, which is used
to direct the urine into a waste receptacle. See What is a Straight Catheter?, supra.

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Soto, Memorial Medical, Dr. Wilhelm, and Memorial Medical personnel intentionally and
unlawfully confined him in room 18 of Memorial Medical without his consent or a valid arrest,
constituting false imprisonment. See Complaint ¶¶ 113-16, at 15.
On May 30, 2017, Favela stipulated to the dismissal of the City of Las Cruces ex rel. Las
Cruces Police Department. See Stipulation of Dismissal as to Defendant City of Las Cruces Ex
Rel. Las Cruces Police Department Without Prejudice at 1, filed May 30, 2017 (Doc. 3). On
September 21, 2019, the Court held that Dollar and Soto are entitled to qualified immunity on the
federal claims, and dismissed all federal claims against them.

See Order at 1-5, filed

September 21, 2018 (Doc. 47). The Court explained its reasoning in its Memorandum Opinion,
398 F. Supp. 3d 858 (D.N.M. June 27, 2019)(Browning, J.)(Doc. 73)(“June 27 MO”). In the June
27 MO, the Court held that Soto is entitled to summary judgment on two state law
claims -- Count VIII for assault and battery, and Count IX for false imprisonment. See June 27
MO at 118, 398 F. Supp. 3d at 942. In Count VIII, Favela alleges that Soto, as well as Memorial
Medical, Dr. Wilhelm, Proctor, Pitts, Reveles, and Branch, committed assault and battery by
“intentionally and physically penetrat[ing], or caus[ing] to be penetrated, a straight catheter into
Plaintiff’s penis for the sole purpose of forcibly extracting urine from him,” Complaint ¶ 108,
at 14; in Count IX, Favela alleges that Soto, as well as Memorial Medical, Dr. Wilhelm, Proctor,
Pitts, Reveles, and Branch, committed false imprisonment by “intentionally confin[ing]” him at
the hospital without his consent. Complaint ¶ 113, at 15.
As to Count VIII, the Court noted that Favela conceded that probable cause existed for
Soto to conduct a traffic stop, and thus probable cause supported Favela’s arrest. See June 27 MO
at 120, 398 F. Supp. 3d at 942-943. The Court reasoned:

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Favela’s lawful arrest removes any potential for assault by Soto under New Mexico
law. See N.M. Stat. Ann. § 30-3-1(B) (stating that assault must involve an unlawful
act). Further, it is undisputed that Favela was given multiple opportunities to
voluntarily and naturally provide a urine sample to Memorial Medical, and the
Court has concluded that Soto had no part in the catheterization. Soto also did not
threaten to catheterize Favela. The catheterization was a result of only Favela’s
uncooperative behavior.
June 27 MO at 120, 398 F. Supp. 3d at 943. The Court also concluded that Soto did not commit
battery, because he was not involved in the catheterization. See June 27 MO at 121, 398 F. Supp.
3d at 943. Although Soto helped remove Favela’s handcuffs “so he could be placed in soft
restraints,” soft restraints were necessary, because of “Favela’s uncooperative nature.” June 27
MO at 121, 398 F. Supp. 3d at 943. The Court further noted that, although the catheterization may
be considered offensive conduct, it does not constitute battery unless it is done unlawfully. See
June 27 MO at 120, 398 F. Supp. 3d at 943.
As to Count IX, the Court held that, because Soto had probable cause to arrest Favela, Soto
could not have committed false imprisonment. See June 27 MO at 121, 398 F. Supp. 3d at 944.
The Court noted that “New Mexico law informs that false imprisonment, which includes false
arrest, ‘occurs when a person intentionally confines or restrains another person without consent
and with knowledge that he has no lawful authority to do so.’” June 27 MO at 121, 398 F. Supp.
3d at 943 (quoting Santillo v. N.M. Dep’t of Pub. Safety, 2007-NMCA-159, ¶ 12, 173 P.3d 6, 10
(emphasis added by June 27 MO)). The Court reasoned that, because probable cause supports
Favela’s arrest, it “cannot be said that Soto intentionally confined Favela knowing he had no lawful
authority to do so.” June 27 MO at 123, 398 F. Supp. 3d at 944. Because Favela stipulated to the
dismissal of the City of Las Cruces ex rel. Las Cruces Police Department, and the Court terminated
Dollar and Soto as Defendants, the only Defendants remaining are Memorial Medical,
Dr. Wilhelm, Proctor, Pitts, Reveles, and Branch.

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1.

The MSJ.

On September 13, 2019, Memorial Medical, Proctor, Pitts, Reveles, and Branch filed the
MSJ, asking the Court to “render judgment as a matter of law in favor of them as to all of the
remaining claims and causes of action asserted against them.” MSJ at 23. As to Counts II and III,
Memorial Medical, Proctor, Pitts, Reveles, and Branch argue that Favela “cannot adduce any
evidence” that they violated his Fourth Amendment rights. MSJ at 9. As to Count VI, Memorial
Medical, Proctor, Pitts, Reveles, and Branch argue that “Mr. Favela cannot adduce any evidence
from which the Court could infer the Hospital failed to screen Dr. Wilhelm’s competency” or to
supervise her. MSJ at 18. Memorial Medical, Proctor, Pitts, Reveles, and Branch contend that
Count VI simply reiterates the claims that other Counts bring. See MSJ at 22-23. Furthermore,
Pitts and Branch argue that there is no evidence supporting any claims brought against them,
because Pitts and Branch were not “present during” and did not participate[] in the” catheterization.
MSJ at 23. As to Count VII, Memorial Medical argues that Favela has no evidence to support his
NMUPA claim against it. See MSJ at 18.
There are three state law claims: Count V, a lack-of-informed-consent claim; Count VIII,
an assault-and-battery claim; and Count IX, a false-imprisonment claim. As to Count V, Memorial
Medical, Proctor, Pitts, Reveles, and Branch assert that they owed “no duty as a matter of law to
obtain [Favela’s] consent” to perform a catheterization, which they argue was “necessary to protect
Mr. Favela’s health and life.” MSJ at 12. As to Count VIII, Memorial Medical, Proctor, Pitts,
Reveles, and Branch argue that Favela’s assault and battery claims “fail as a matter of law,”
because Favela was incapable of consenting and needed immediate treatment when they performed
the catheterization. MSJ at 20. As to Count IX, Memorial Medical, Proctor, Pitts, Reveles, and
Branch argue that there “was probable cause to restrain Mr. Favela,” which “negates any claim for

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false imprisonment.” MSJ at 21. According to Favela, “there is no dispute there was probable
cause from the outset and further reasonable cause because of the threat to Mr. Favela’s health and
the threat he presented to himself and the Hospital staff.” MSJ at 22.
2.

The MSJ Response.

In the Plaintiff’s Response to Defendants’ Motion for Summary Judgment, filed September
27, 2019 (Doc. 91)(“MSJ Response”), Favela concedes that the Defendants are entitled to
summary judgment on Counts II, III, and IV against Memorial Medical, Proctor, Pitts, Reveles,
and Branch, as well as on Count VI against Memorial Medical and Count VII against Memorial
Medical and Dr. Wilhelm. See MSJ Response ¶¶ IV.a, IV.d, IV.e, IV.g, at 16, 21, 21, 23. As to
Count V, Favela argues that there was no medical emergency and that he was capable of
consenting, so Dr. Wilhelm had a duty to obtain Favela’s consent. See MSJ Response ¶ IV.c,
at 20. Favela also contends that liability should extend to Medical Memorial under the theory of
apparent agency. See MSJ Response at ¶ IV.b, at 16. As to Count VIII, Favela argues that,
“because Mr. Favela was no longer under arrest when Officer Soto said he would not be charged,
and because Mr. Favela was able to consent and refused that consent, the Defendants’ offensive
touching of him without consent met the elements of assault and battery.” MSJ Response ¶ IV.f,
at 21. As to Count IX, Favela concedes “that from the time he was initially detained through his
arrest, the police had probable cause to detain him.” MSJ Response ¶ IV.g, at 21. Favela
maintains, however, that Medical Memorial, Dr. Wilhelm, Proctor, Pitts, Reveles, and Branch did
not have probable cause, because they knew that he had refused treatment. See MSJ Response
¶ IV.g, at 22-23. Favela concedes that there is no evidence supporting any claims brought against
Pitts, but he maintains that there is evidence supporting his claims against Branch. See MSJ
Response ¶ IV.g, at 23-24. According to Favela, the “evidence supports that Primary Nurse

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Branch was personally involved in Mr. Favela’s care during the crucial time of determining
whether there was a medical emergency, whether Mr. Favela was unable to consent, and whether
restraints were necessary,” and therefore the Court should not dismiss the claims against Branch.
See MSJ Response ¶ IV.g, at 24.
3.

The MSJ Reply.

In the Defendants’ Reply in Support of Summary Judgment, filed October 11, 2019
(Doc. 106)(“MSJ Reply”), Memorial Medical, Proctor, Pitts, Reveles, and Branch contend that,
based on Favela’s concessions, summary judgment is proper for Counts II, III, IV, VI, and VII,
and for all claims against Pitts. See MSJ Reply at 1. Memorial Medical, Proctor, Pitts, Reveles,
and Branch argue that Favela “concedes summary judgment should be granted as to [his] federal
claims (and others) and does not object to the Court’s continued exercise of supplemental
jurisdiction.” MSJ Reply at 1 n.2. Memorial Medical, Proctor, Pitts, Reveles, and Branch
maintain that “a district court may exercise supplemental jurisdiction over state claims in the
absence of any triable federal claims ‘when the nature and extent of pretrial proceedings, judicial
economy, convenience, and fairness would be served by retaining jurisdiction.’” MSJ Reply at 1
n.2 (quoting Thatcher Enters. v. Cache Ct. Corp., 902 F.2d 1472, 1478 (10th Cir. 1990)).
Memorial Medical, Proctor, Pitts, Reveles, and Branch argue:
Given the facts (1) the Court is well-versed in the facts and law of this case, (2) the
expense and time associated with having to begin anew in state court after this case
has been pending in federal court for more than two years, and (3) Plaintiff has not
objected to the Court retaining supplemental jurisdiction over the state law claims,
maintaining jurisdiction over those claims remains fully within the gambit of the
Court’s discretion and is appropriate under the circumstances.

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MSJ Reply at 1 n.2. Memorial Medical, Proctor, Pitts, Reveles, and Branch argue that their
statement of facts “remains uncontroverted,” and that the few facts that Favela contests “are
immaterial and properly disregarded.” MSJ Reply at 3-5.
As to Count V, Memorial Medical first argues that Favela did not allege in his Complaint
that Dr. Wilhelm was Memorial Medical’s apparent agent, and that neither the “New Mexico Court
of Appeals [n]or the New Mexico Supreme Court [has ever] extended vicarious liability on a
theory of apparent authority to a hospital based on an independent contractor’s alleged failure to
obtain the informed consent of a patient.” MSJ Reply at 8. They contend, moreover, that “there
is no competent summary judgment evidence to support [that Favela] thought Dr. Wilhelm was an
apparent employee or agent of” Memorial Medical. MSJ Reply at 9. Accordingly, Memorial
Medical maintains that it “had no duty to obtain Plaintiff’s informed consent or to ensure Dr.
Wilhelm did.” MSJ Reply at 9. Second, Memorial Medical argues that Favela does not offer
evidence disputing that Medical Memorial’s staff believed that he was suffering a medical
emergency and that Favela had “elevated vital signs” when he was admitted. MSJ Reply at 9.
Third, Memorial Medical avers that “the undisputed evidence shows [that Favela] was unable to
consent.” MSJ Reply at 10.
As to Count VIII, Memorial Medical, Proctor, Pitts, Reveles, and Branch argue that Favela
“has given the Court no reason to set aside its prior conclusion the catherization [sic] was not
offensive in light of the medical need for it.” MSJ Reply at 11. Moreover, Memorial Medical,
Proctor, Pitts, Reveles, and Branch assert that “testimony and the medical records unequivocally
establish [that Favela] could not consent and the catherization [sic] was critical to ensure his life
and health. There is no issue for trial on the assault and battery claim.” MSJ Reply at 11. As to
Count IX, Memorial Medical, Proctor, Pitts, Reveles, and Branch argue that “it is undisputed the

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Hospital staff believed it had authority to keep [Favela] until all of the necessary medical treatment
was performed.” MSJ Reply at 12. According to them, Favela does not dispute that, given that
he “passed out and continued to (at the very least) appear to lose consciousness and not be able to
fully orient himself, it was reasonable for Hospital staff to complete the medical treatment.” MSJ
Reply at 12.

Last, Branch argues that there “is no evidence [she] was involved in the

catheterization; summary judgment is proper as to all of the claims against her.” MSJ Reply at 12.
4.

The Hearing.

At the November 1, 2019, hearing, Favela again confirmed that the Court should enter
summary judgment for the federal claims. See Draft Transcript of Hearing (taken November 1,
2019) at 19:8-17 (Coronado)(“Tr.”) 7; id. at 3:20-4:24 (Court, Morrow). In addition, the parties
agreed that the Court should enter summary judgment on Counts VIII and IX in favor of Pitts. See
Tr. at 4:17-18 (Morrow). The Court noted that it is inclined to enter summary judgment on the
federal claims and then remand the state law claims. See Tr. at 2:2-12 (Court). The Court
explained that it does not think that the United States Court of Appeals for the Tenth Circuit “wants
me to keep jurisdiction over the case, and I normally don’t do things that the Tenth Circuit doesn’t
want me to do.” Tr. at 2:13-16 (Court). Memorial Medical, Proctor, Pitts, Reveles, and Branch
confirmed that only Counts V, VIII, and IX remain, which include, respectively, state law claims
for lack of informed consent, assault and battery, and false imprisonment. See Tr. at 4:19-24
(Morrow). Memorial Medical, Proctor, Pitts, Reveles, and Branch argued that the Court should
retain jurisdiction over the three remaining Counts, because the Court already took “a position as

7

The Court’s citations to the transcripts of both hearings refer to the court reporter’s
original, unedited version; any final transcripts may contain slightly different page and/or line
numbers.

- 17 -

to the facts and the law regarding two of the three” Counts -- assault and battery and false
imprisonment -- in the June 27 MO. Tr. at 5:6-8 (Morrow). Memorial Medical, Proctor, Pitts,
Reveles, and Branch said that much of the June 27 MO is “directly on point with the assault and
battery claims and the false imprisonment claims that remain pending before this court.” Tr.
at 6:25-7:3 (Morrow). They added that, based on the Court’s past cases, it is a “rare thing for a
case to be pending before the court for a period of two years, to get within weeks of trial and for
the court to . . . decline to issue supplemental jurisdiction.” Tr. at 7:6-10 (Morrow).
The Court noted that, when it issued the June 27 MO dismissing two state law claims
against Soto, it “still had federal claims.” Tr. 7:12 (Morrow). The Court explained:
I’m going to have to think long and hard about the opinion that the Supreme Court’s
issued that you all are struggling with as to whether -- when a hospital has to get
consent and when it doesn’t have to get consent. It seems to me that’s kind of a
classic state issue. It seems [to] me it ought to be something that really the state
[court] decides, not me. It’s an interesting issue, I wouldn’t mind deciding it, and
you know, if I wasn’t staring all these Tenth Circuit cases in the face then I might
be inclined to judicial economy. But I don’t know. I’m not sure it’s even
economical at this point. It seems to me that we still have a lot of work ahead.
Tr. at 7:25-8:12 (Court). Memorial Medical, Proctor, Pitts, Reveles, and Branch noted that they
did not remove the case, and that “it was the plaintiff who made the decision within the last few
weeks to abandon his federal claims.” Tr. at 8:12-14 (Morrow). The Court responded that it
“hate[s] to penalize the plaintiff for abandoning claims.” Tr. at 8:15-16 (Court). Memorial
Medical, Proctor, Pitts, Reveles, and Branch argued that, as to the “New Mexico case law regarding
informed consent, the New Mexico Court of Appeals has taken a firm stance on exactly the issue
that is before the court.” Tr. at 9:24-102 (Morrow). The Court responded that the “tricky thing”
is that the Court must confront an Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938), problem and
predict “what the Supreme Court of New Mexico would do.” Tr. at 10:3-7 (Court). The Court

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noted, however, that the Court of Appeals of New Mexico cases would be helpful. See Tr.
at 10:8-11 (Court). Memorial Medical, Proctor, Pitts, Reveles, and Branch asserted that the
Supreme Court of New Mexico has not overruled Johnson v. Sears, Roebuck & Co., 1992-NMCA039, 832 P.2d 797, or Cooper v. Curry, 1978-NMCA-104, 589 P.2d 201, and that “both of those
cases remain good law.” Tr. at 10:17 (Morrow). The Court said that the Tenth Circuit has held
that, “‘[w]hen all federal claims have been dismissed, the court may and usually should decline to
exercise jurisdiction over any remaining state claims.’” Tr. at 11:6-8 (Court)(quoting Kock v. City
of Del City, 660 F.3d 1228, 1248 (10th Cir. 2011)(quoting Smith v. Enid ex rel. Enid City
Comm’n, 149 F.3d 1151, 1156 (10th Cir. 1998))).
Memorial Medical, Proctor, Pitts, Reveles, and Branch argued that Favela has yet to ask
the Court to decline to exercise supplemental jurisdiction. See Tr. at 11:24-25 (Morrow). They
maintain that judicial economy weighs in favor of exercising supplemental jurisdiction, because
although Favela
argues that the court should re-evaluate its previous evaluation of the assault and
battery claim, [] the court has already determined that the catheterization at issue
was not an assault because an assault requires an unlawful act, and there was not
an unlawful act here. Further, the court has already determined that the
catheterization was justified.
Tr. at 12:8-15 (Morrow). The Court responded that parties may “concede certain facts” when one
party files a motion for summary judgment, but that, when there is another motion for summary
judgment, parties “may not concede those facts” or the facts may be different. Tr. 12:20-25
(Court). The Court added that it is “a little reluctant to just take something I said in the federal
context and run with it in the state context.” Tr. at 13:1-3 (Court). Memorial Medical, Proctor,
Pitts, Reveles, and Branch responded that, in the June 27 MO, the Court cited “directly to New
Mexico statutes,” and to “New Mexico law regarding assault and battery,” and that the “facts have

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not changed.” Tr. at 13:5-11 (Morrow). According to them, the “only allegation now is that
plaintiff [says] that maybe he was faking, which he now says three or four years after the fact and
certainly that was not the circumstance known by any hospital staff at the time.” Tr. at 13:14-18
(Morrow). Memorial Medical, Proctor, Pitts, Reveles, and Branch argued that
in fairness to the parties and in creating a situation where it would not prejudice the
defendants who have already been before the court for two and a half years, the
assault and battery claim should be found in favor of the defendants.
Similar situation with the false imprisonment claim. The facts have not
changed. The facts that are contested have not changed. The facts that are
uncontested have not changed. And in particular, those are the facts that this Court
can and should rely on when finding in favor of the defendants, the current
defendants, in the false imprisonment claim.
Tr. at 14:6-18 (Morrow). They noted that the only claim that the Court did not decide in the
June 27 MO is the informed consent claim. See Tr. at 15:16-20 (Morrow). Memorial Medical,
Proctor, Pitts, Reveles, and Branch concluded by asking the Court “to hold consistently on the
assault and battery and false imprisonment claims and if any of the claims need to be remanded to
state court, the lack of informed consent claim could be the only one that was remanded.” Tr.
at 15:22-16:1 (Morrow).
Favela said that he agrees “with the court’s summary of all the reasons why this case should
be sent back to [] state district court for a decision.” Tr. at 16:11-14 (Coronado). Favela noted
that, with respect to the June 27 MO, the issue before the Court was whether the Las Cruces Police
Department’s “motion for summary judgment was a valid motion based upon qualified immunity.”
Tr. at 17:6-8 (Coronado). Favela added that, when the Court issued the June 27 MO, the “facts
with respect to the hospital defendants were not ripe for decision” and that, in the interim, the
parties have “had so much time to conduct discovery and flesh out some of the other facts.”
June 27 MO at 17:9:-12 (Coronado). Favela argued that judicial economy does not warrant

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exercising supplemental jurisdiction, because: (i) the case was “stayed for quite some time,” during
which time “nothing really was happening in the case”; and (ii) “all the witnesses except for the
experts are located in Las Cruces, New Mexico,” and most of the Defendants, except for those
“who have left the jurisdiction and gone to work somewhere else,” remain in Las Cruces. Tr.
at 17:23-18:2 (Coronado). Favela noted that a motion is pending before the Court to transfer the
case to Las Cruces and that he does not oppose the motion. See Tr. at 18:4-10 (Coronado);
Defendants’ Motion for Intra-District Transfer of Proceedings, filed September 16, 2019
(Doc. 90). Memorial Medical, Proctor, Pitts, Reveles, and Branch noted that they filed the motion
to transfer, see Tr. at 18:17-18 (Morrow), and the Court responded that it does not “mind trying a
case in Las Cruces,” Tr. at 18:12-13 (Court). Favela then argued that the false imprisonment and
assault and battery issues, which the Court addressed in the June 27 MO,
were case specific to Las Cruces PD, and not to the hospital defendants. So I would
be in favor of the court sending this case back to the state court to have the state
court issues addressed before the court for the reasons you stated and also because
of the issues [] involving informed consent that are better left decided by state court.
Tr. at 19:11-17 (Coronado).
The Court observed that Favela wants the Court to decline to exercise jurisdiction, and it
then asked Favela:
Would you agree if I ask you to put an order together dismissing with prejudice or
consenting to the motion for summary judgment on those federal counts and the
counts you have agreed to, the ones you have consented to, so we can help
[Memorial Medical, Proctor, Pitts, Reveles, and Branch] clear out the things that
[they have] won here in federal court? Would you agree to put together a motion
and granting her motion for summary judgment on those counts?
Tr. at 21:3-11 (Court). Favela responded: “Yes, I would, Your Honor.” Tr. at 21:12 (Coronado).
The Court explained that it would write an opinion “stating why I declined to exercise federal []
supplemental jurisdiction in this case,” which Memorial Medical, Proctor, Pitts, Reveles, and

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Branch can appeal, but that the case “will be remanded back to the [state] court.” Tr. at 21:18-25
(Court). The Court observed that “it would just be so unusual for me to keep this case.” Tr.
at 23:1-2 (Court). The Court then tasked Favela with preparing an order granting summary
judgment on and dismissing with prejudice the Counts that he concedes in the MSJ Response. See
Tr. at 23:7-11 (Court). The Court directed Favela to send the order to Memorial Medical, Proctor,
Pitts, Reveles, and Branch to sign off on the order and submit it to the Court. See Tr. at 23:11-13
(Court). The Court said that it would then dismiss the federal claims and write a “relatively short
opinion and order then remanding the case back to the Third Judicial District” of New Mexico.
Tr. at 23:15-17 (Court).
5.

The Remand Order.

Favela prepared an order, which Memorial Medical, Proctor, Pitts, Reveles, and Branch
submitted to the Court. See Remand Order 1-3. In the Remand Order, the Court granted in part
the MSJ, and dismissed with prejudice the following claims: (i) Counts II, III, IV, VIII, and IX
against Pitts; (ii) Counts II, III, and IV against Proctor, Reveles, and Branch; and (iii) Counts VI
and VII against Memorial Medical. See Remand Order at 2. Because only Counts V, VIII, and
IX -- which are all state law claims -- remain, the Court also declined to exercise supplemental
jurisdiction and now remands the case. See Remand Order at 3. The Court stated at the
November 1, 2019, hearing that it would write a short opinion explaining why the Court declines
to exercise supplemental jurisdiction and is thus remanding the case. See Tr. at 23:15-17 (Court).
This Memorandum Opinion is the Court’s promised opinion.
LAW REGARDING SUPPLEMENTAL JURISDICTION
It is a fundamental precept of American law that the federal courts are “courts of limited
jurisdiction.” Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 552 (2005). Federal

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courts “possess only that power authorized by Constitution and statute.” Kokkonen v. Guardian
Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). Among the powers that Congress has bestowed
upon the courts is the power to hear controversies arising under federal law -- federal-question
jurisdiction -- and controversies arising between citizens of different states -- diversity
jurisdiction. See 28 U.S.C. §§ 1331-32. Section 1367 additionally grants the federal courts power
to hear claims over which the court lacks original jurisdiction, if those claims are part of the same
constitutional “case or controversy” as claims over which the court has original jurisdiction.
28 U.S.C. § 1367(a). See Bonadeo v. Lujan, 2009 WL 1324119, at *18 (D.N.M. Apr. 30,
2009)(Browning, J.).
1.

Congressional Authority to Exercise Supplemental Jurisdiction.

Although a statutory basis is necessary for federal courts to exercise jurisdiction over a
controversy, “it is well established -- in certain classes of cases -- that, once a court has original
jurisdiction over some claims in the action, it may exercise supplemental jurisdiction over
additional claims that are part of the same case or controversy.” Exxon Mobil Corp. v. Allapattah
Servs., Inc., 545 U.S. at 552. The Supreme Court of the United States of America has long
subscribed to the concept of supplemental jurisdiction recognized in two common-law doctrines,
pendent jurisdiction and ancillary jurisdiction; section 1367’s passage codified those jurisdictional
forms, and also allowed courts to hear cases under pendent-party jurisdiction, which the Supreme
Court had previously disallowed in Finley v. United States, 490 U.S. 545 (1989). Federal courts
may exercise pendent jurisdiction over state law claims when “state and federal claims . . . derive
from a common nucleus of operative fact.” United Mine Workers v. Gibbs, 383 U.S. 715, 725
(1966). Supplemental jurisdiction gives federal courts the flexibility to hear a cause of action after
the introduction of third parties, whose insertion into the litigation does not have the support of

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any independent grounds for federal jurisdiction, when those parties share a common interest in
the outcome of the litigation and are logical participants in it. See Owen Equip. & Erection Co. v.
Kroger, 437 U.S. 365, 375 n.18 (1978).
In 1988, the Honorable William H. Rehnquist, then-Chief Justice of the Supreme Court,
created the Federal Courts Study Committee to analyze the federal court system and to recommend
reforms. See James v. Chavez, 2011 WL 6013547, at *5 (D.N.M. Nov. 21, 2011)(Browning, J.).
In response to the Committee’s findings regarding pendent, ancillary, and pendent-party
jurisdiction, Congress codified the doctrines when it passed the Judicial Improvements Act of
1990:
[I]n any civil action of which the district courts have original jurisdiction,
the district courts shall have supplemental jurisdiction over all other 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. Such supplemental jurisdiction shall include claims that involve the
joinder or intervention of additional parties.
28 U.S.C. § 1367(a). In enacting 28 U.S.C. § 1367, Congress conferred upon federal courts
“supplemental forms of jurisdiction . . . [that] enable them to take full advantage of the rules on
claim and party joinder to deal economically -- in single rather than multiple litigation -- with
matters arising from the same transaction or occurrence.” Report of the Federal Courts Study
Committee, Part II.2.B.2.b. (April 2, 1990), reprinted in 22 Conn. L. Rev. 733, 787 (1990).
2.

The District Courts’ Discretion to Exercise Supplemental Jurisdiction.

The Tenth Circuit has followed the Supreme Court’s lead in classifying supplemental
jurisdiction not as a litigant’s right, but as a matter of judicial discretion. See Estate of Harshman
v. Jackson Hole Mountain Resort Corp., 379 F.3d 1161, 1165 (10th Cir. 2004)(citing City of Chi.
v. Int’l Coll. of Surgeons, 522 U.S. 156, 173 (1997)). In circumstances where the supplemental

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jurisdiction statute may support supplemental jurisdiction, the district court retains discretion to
decline to exercise that jurisdiction. The traditional analysis, based on the Supreme Court’s
opinion in United Mine Workers v. Gibbs, compelled courts to consider “judicial economy,
convenience and fairness to litigants” when deciding whether to exercise supplemental
jurisdiction. 383 U.S. at 726.
Similarly, Congress’ supplemental jurisdiction statute enumerates four factors that the
court should consider:
(1)

the claim raises a novel or complex issue of State law,

(2)

the claim substantially predominates over the claim or claims over which
the district court has original jurisdiction,

(3)

the district court has dismissed all claims over which it has original
jurisdiction, or

(4)

in exceptional circumstances, there are other compelling reasons for
declining jurisdiction.

28 U.S.C. § 1367(c). In applying these factors, district courts should seek to exercise supplemental
jurisdiction in an effort to “vindicate values of economy, convenience, fairness, and comity. . . .”
Estate of Harshman v. Jackson Hole Mountain Resort Corp., 379 F.3d at 1164. Numerous courts
have acknowledged that 28 U.S.C. § 1367(c) necessarily changes the district courts’ supplemental
jurisdiction discretion analysis and that, unless one of the conditions of 28 U.S.C. § 1367(c) exists,
courts are not free to decline jurisdiction. See Itar-Tass Russian News Agency v. Russian Kurier,
Inc., 140 F.3d 442, 447 (2d Cir. 1998)(“[S]ection 1367 has indeed altered Gibbs’ discretionary
analysis.”); McLaurin v. Prater, 30 F.3d 982, 985 (8th Cir. 1994)(“The statute plainly allows the
district court to reject jurisdiction over supplemental claims only in the four instances described
therein.”); Exec. Software N. Am. v. U.S. Dist. Ct., 24 F.3d 1545, 1557 (9th Cir. 1994)(“By

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codifying preexisting applications of Gibbs in subsections (c)(1)-(3), however, it is clear that
Congress intended the exercise of discretion to be triggered by the court’s identification of a factual
predicate that corresponds to one of the section 1367(c) categories.”), overruled on other grounds
by Cal. Dep’t of Water Res. v. Powerex Corp., 533 F.3d 1087 (9th Cir. 2008); Palmer v. Hosp.
Auth., 22 F.3d 1559, 1569 (11th Cir. 1994)(“[S]upplemental jurisdiction must be exercised in the
absence of any of the four factors of section 1367(c). . . .”); Bonadeo v. Lujan, 2009 WL 1324119,
at *9 (“28 U.S.C. § 1367(c) changed the district courts’ supplemental jurisdiction discretion
analysis to prohibit courts from declining jurisdiction unless one of the conditions of 28 U.S.C.
§ 1367(c) exists.”). At least one other district court in the Tenth Circuit besides this Court has
reached the same conclusion. See Gudenkauf v. Stauffer Commc’ns, Inc., 896 F. Supp. 1082,
1084 (D. Kan. 1995)(Crow, J.)(“[A]ny exercise of discretion declining jurisdiction over pendent
claims or parties cannot occur until ‘triggered’ by the existence of one of the four conditions
enumerated.”).
The Tenth Circuit has held that district courts should presume to decline jurisdiction over
state claims when federal claims no longer remain: “When all federal claims have been dismissed,
the court may, and usually should, decline to exercise jurisdiction over any remaining state
claims.” Koch v. City of Del City, 660 F.3d 1228, 1248 (10th Cir. 2011)(quoting Smith v. City of
Enid ex rel. Enid City Comm’n, 149 F.3d at 1156). That conclusion is consistent with the Supreme
Court’s statement that
[n]eedless decisions of state law should be avoided both as a matter of
comity and to promote justice between the parties, by procuring for them a surerfooted reading of applicable law. Certainly, if the federal claims are dismissed
before trial, even though not insubstantial in a jurisdictional sense, the state claims
should be dismissed as well.
United Mine Workers of Am. v. Gibbs, 383 U.S. at 726 (footnote omitted).

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The Tenth Circuit has recognized that a district court does not abuse its discretion when it
declines

to

exercise

supplemental

jurisdiction

over

a

claim

“under

28

U.S.C.

§ 1367(c)(3) . . . where it has dismissed all claims over which it has original jurisdiction.” Muller
v. Culbertson, 408 F. App’x 194, 197 (10th Cir. 2011)(unpublished). 8 The Court previously has
stated that a district court should usually decline to exercise supplemental jurisdiction when 28
U.S.C. § 1367(c) applies. See Armijo v. New Mexico, No. CIV 08-0336 JB/ACT, 2009 WL
3672828, at *4 (D.N.M. Sept. 30, 2009)(Browning, J.)(“The Supreme Court and the Tenth Circuit
have not only acknowledged such a result, they have encouraged it.”). The Court consistently has
declined to exercise supplemental jurisdiction when it dismisses all of a case’s federal claims with
prejudice. See, e.g., McGarry v. Bd. of Cty. Comm’rs for Cty. of Lincoln, 294 F. Supp. 3d 1170,
1206 (D.N.M. 2018)(Browning, J.)(“The only remaining claim before the Court is McGarry’s
NMTCA claim. . . . The Court declines to exercise supplemental jurisdiction over that claim.”);
Parrish v. Roosevelt Cty. Board of Cty. Comm’rs, No. CIV 15-0703 JB/GJF, 2017 WL 6759103,
at *20 (D.N.M. Dec. 31, 2017)(Browning, J.)(“The Court declines to exercise supplemental
jurisdiction over Parrish’s remaining state-law breach-of-contract claim.”); Martinez v. Guadalupe
Cty, 200 F. Supp. 3d 1216, 1265 (D.N.M. 2016)(Browning, J). The Court has also declined to

8

Muller v. Culbertson is an unpublished Tenth Circuit opinion, but the Court can rely on
an unpublished Tenth Circuit opinion to the extent its reasoned analysis is persuasive in the case
before it. See 10th Cir. R. 32.1(A), 28 U.S.C. (“Unpublished opinions are not precedential, but
may be cited for their persuasive value.”). The Tenth Circuit has stated: “In this circuit,
unpublished orders are not binding precedent, . . . and . . . citation to unpublished opinions is not
favored. . . . However, if an unpublished opinion . . . has persuasive value with respect to a
material issue in a case and would assist the court in its disposition, we allow a citation to that
decision.” United States v. Austin, 426 F.3d 1266, 1274 (10th Cir. 2005). The Court concludes
that Muller v. Culbertson, Mountain States Media, LLC v. Adams Cty., Nard v. City of Okla. City,
Douglas v. Norton, and Wallin v. Dycus have persuasive value with respect to a material issue,
and will assist the Court in its preparation of this Memorandum Opinion and Order.

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dismiss state law claims when it dismisses a party’s federal claims without prejudice. See Young
v. City of Albuquerque, 77 F. Supp. 3d 1154, 1189 (D.N.M. 2014)(Browning, J.)(“[T]he Court
would normally remand those [state law] claims to state court.

To give the Plaintiffs an

opportunity to amend the Complaint to add federal claims against Dear and any other individuals,
however, the Court will not remand the state-law claims to state court at this point.”).
3.

Whether an Issue is Novel.

Under 28 U.S.C. § 1367(c)(1), a district court “may decline to exercise supplemental
jurisdiction over a claim” if “the claim raises a novel or complex issue of state law.”
28 U.S.C. § 1367(c)(1). What makes a state law issue novel is unclear from binding Tenth Circuit
caselaw. See, e.g., Roe v. Cheyenne Mountain Conference Resort, Inc., 124 F.3d 1221, 1236-37
(10th Cir. 1997)(not distinguishing between “novel” and “complex” and dismissing a state law
claim on § 1367(c)(1) grounds and because no federal law claims remained); Anglemyer v.
Hamilton Cty. Hosp., 58 F.3d 533, 541 (10th Cir. 1995)(dismissing a state law claim as novel and
complex, merely because a plaintiff alleged a violation of the Kansas Risk Management Act, Kan.
Stat. Ann. §§ 65-4921 to 4940). 9 A discernible test for novelty is also not apparent from studying
Professors Charles Alan Wright and Arthur Miller’s Federal Practice and Procedure. See generally

9

The Tenth Circuit concluded that the issue was novel and complex without elaborating a
test, writing:
However, we do not have to decide whether the court insufficiently took the
extent of the pretrial proceedings into consideration because there is an independent
reason for dismissing Ms. Anglemyer’s pendent state claims. In her complaint
(Count III), she alleged the hospital violated the Kansas Risk Management Act. We
believe the Kansas courts are the appropriate forum to decide this novel and
complex issue of state law.
Anglemyer v. Hamilton Cty. Hosp., 58 F.3d 533, 541 (10th Cir. 1995).

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13D Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 3567.3, at 417421 nn. 60-61 (3d. ed. 2008)(collecting cases). The only general rule that Professors Wright and
Miller recognize for the novelty test is that, “[a]s a general matter, common law contract and tort
claims do not present novel or complex questions of state law.” 13D Wright & Miller, supra
§ 3567.3, at 417 n.60. See, e.g., Blakely v. United States, 276 F.3d 853 (6th Cir. 2002)(“This case
does not present complex or novel issues of state law. It involves a fraud claim.”). But cf. Wallin
v. Dycus, 224 F. App’x 734, 740 (10th Cir. 2007)(unpublished), as amended nunc pro tunc (March
5, 2008)(affirming a district court for dismissing a state law claim as novel, because it required the
court to determine whether Colorado law recognized that a jailer owed a duty of care to protect a
prisoner’s health in tort). Otherwise, they acknowledge a hodgepodge of different factors that
federal courts have found operative when considering whether a claim is novel. See, 13D Wright
& Miller, supra § 3567.3, at 417 n.60 (citing Dream Palace v. Cty. of Maricopa, 384 F.3d 990,
1022 (9th Cir. 2004)(determining a state issue was novel, because it concerned “issues of the
balance of power between state and local authorities in Arizona”); Arpin v. Santa Clara Valley
Transp. Agency, 261 F.3d 912, 927 (9th Cir. 2001)(concluding novelty existed, because it raised
“an issue of first impression as to how [a state law] provision is to be applied”); Doe v. Sundquist,
106 F.3d 702, 708 (6th Cir. 1997)(concluding an issue was novel, because it involved
interpretation of the state constitution and a new state statute); Wilson v. PFS, LLC, 493
F. Supp. 2d 1122, 1126 (S.D. Cal. 2007)(Hayes, J.)(determining an issue novel or complex,
because there is conflicting state law interpretations of the law); Kadetsky v. Egg Harbor Tp. Bd.
of Educ., 164 F. Supp. 2d 425, 437 (D.N.J. 2001)(Orlofsky, J.)(concluding an issue novel, because
it turned on “application of a recent change in New Jersey state law”); Rockey v. Courtesy Motors,
Inc., 199 F.R.D. 578, 596 (W.D. Mich. 2001)(Scoville, M.J.)(concluding an issue is novel, because

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“there is not a single published state-court opinion on point”)). See also 13D Wright & Miller,
supra § 3567.3, at 416 (“Occasionally, a court appears to decline supplemental jurisdiction simply
because the supplemental claim involves questions of state law.”). Some courts, however, have
bucked one or more of these factors. See e.g., Schwarm v. Craighead, 233 F.R.D. 655, 659 (E.D.
Cal. 2006)(Shubb, J.)(exercising supplemental jurisdiction, even though California courts had not
yet interpreted the statute at issue, because “the court here faces a single unexceptional question
of statutory interpretation”); Hunter by Conyer v. Estate of Baecher, 905 F. Supp. 341, 343 (E.D.
Va. 1995)(Clarke, J.)(“It is true that state caselaw concerning the [Virginia Residential Landlord
and Tenant Act, Va. Code Ann. §§ 55-248.2 to 248.50] generally and in the lead paint context
specifically is sparse. Nevertheless, the lack of caselaw does not make the VRLTA unintelligible
to this Court.”). Perhaps recognizing that what is novel is unfixed, Wright and Miller note that
“each case is decided on its own facts.” 13D Wright & Miller, supra § 3567.3, at 417-18. See id.
at 400 n.27 (citing Karen Nelson Moore, The Supplemental Jurisdiction Statute: An Important but
Controversial Supplement to Federal Jurisdiction, 41 Emory L.J. 31, 62-63 (1992)(“In particular,
it may be relatively easy for a district judge to conclude that a novel or complex issue of State law
is involved and to exercise essentially unreviewable discretion to dismiss such a claim.”)). This
uncertainty is not helpful for litigants. Cf. Teague v. Lane, 489 U.S. 288, 332 (1989)(Brennan, J.,
dissenting)(noting that “predictability in the law” permits “litigants and potential litigants” to act
with knowledge, and with assurance that “they will not be treated unfairly as a result of frequent
or unanticipated changes in the law”). The Court, accordingly, deems it prudent to outline a test
for 28 U.S.C. § 1367(c)(1)’s novelty requirement. 10

10

28 U.S.C. § 1367(c)(1)’s novelty and complexity requirements are separate tests -- that
is, “novel or complex” is disjunctive, so it should not be read as “novel and complex.” 28

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The origin of 28 U.S.C. § 1367(c)(1) is rooted in the seminal United Mine Workers of Am.
v. Gibbs, 383 U.S. 715 (1966)(“Gibbs”). In that case, the Supreme Court created a two-part test
for what was then known as pendent jurisdiction. See Gibbs, 383 U.S. at 725. The test’s first
consideration turned on constitutional concerns -- the federal court’s subject matter jurisdiction
over the state claim. See Gibbs, 383 U.S. at 725. To satisfy that constitutional requirement, the
Supreme Court determined that “the state and federal claims must derive from a common nucleus
of operative fact.” See Gibbs, 383 U.S. at 725. The test’s second part turned on more pedestrian
but nonetheless crucial practical concerns. See 383 U.S. at 726. The “justification” in exercising
jurisdiction “lies in considerations of judicial economy, convenience and fairness to litigants.” 383
U.S. at 726. Thus, “[n]eedless decisions of state law should be avoided both as a matter of comity
and to promote justice between the parties by procuring for them a surer-footed reading of
applicable law.” Gibbs, 383 U.S. at 726 (citing Strachman v. Palmer, 177 F.2d 427, 437 (1st Cir.
1949)(Macgruder, C.J., concurring)(“Federal courts should not be overeager to hold on to the
determination of issues that might be more appropriately left to settlement in state court

U.S.C. § 1367(c)(1). See Ameritox, Ltd. v. Millennium Labs., Inc., 803 F.3d 518, 536 n.27 (11th
Cir. 2015). The United States Court of Appeals for the Eleventh Circuit has written:
Additionally, § 1367(c)(1) grants district courts the discretion to decline to exercise
supplemental jurisdiction if the claim raises a novel or complex issue of State law.
Thus, even if the claims were not complex -- and they are complex -- the claims’
novelty would be sufficient to vest the District Court with discretion.
Ameritox, Ltd. v. Millennium Labs., Inc., 803 F.3d at 536 n.27. That conclusion is also supported
by the plain meaning of both words. Novel, as explored below, generally means new or perhaps
notably new. See infra, 36-37. Complex on the other hand, typically means complicated, involved,
intricate, or not easily analyzed. See Oxford English Dictionary (online ed. 2018)(defining
complex as “consisting of parts or elements not simply co-ordinated, but some of them involved
in various degrees of subordination; complicated, involved, intricate; not easily analysed or
disentangled”). Something can easily be new without being complicated. With these divergent
meanings, it is unlikely that Congress meant for those words to be read together to form one test.

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litigation.”)).

The Supreme Court’s thought is that state courts either are more adept at

adjudicating state law matters or as a matter of respecting our federal system, state sovereigns
-- where possible, convenient, and just -- should decide state law matters. See Gibbs, 383 U.S.
at 726.
Congress’ enactment of 28 U.S.C. § 1367 supersedes Gibbs, at least in part. See Wright
& Miller supra, § 3567.3, at 400 (“These statutory factors do not completely mesh with the
examples provided in Gibbs.”). See also Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S.
546. The underlying practical considerations animating Gibbs, however, appear to remain intact.
See Estate of Harshman v. Jackson Hole Mountain Resort Corp., 379 F.3d at 1164 (“Seeking to
vindicate values of economy, convenience, fairness, and comity underlying the judicially-created
doctrine of pendent jurisdiction, Congress granted statutory authority to district courts to hear
claims that form part of the same case or controversy.”). The Court proceeds, accordingly, with
those considerations of economy, convenience, fairness, and comity in mind.
Black’s Law dictionary does not define novel. See Black’s Law Dictionary 1169 (9th ed.
2009). It is more a colloquial word for new than a legal word. See Pac. Operators Offshore, LLP
v. Valladolid, 565 U.S. 207, 223 (2012)(Scalia, J., dissenting)(“Substantial nexus is novel legalese
with no established meaning in the present context.”); Sch. Dist. of Abington Tp. v. Schempp, 374
U.S. 203, 304 (1963)(“The principles which we reaffirm and apply today can hardly be thought
novel or radical. They are, in truth, as old as the Republic itself.”). In this context, however, the
Court concludes that novel cannot mean only new, because such a meaning would make
supplemental jurisdiction completely discretionary and § 1367(c) plain language does allow that
expansive meaning. See 28 U.S.C. § 1367(c). Every case is new in some way. There are, at least,
always new parties and new facts, and thus the legal analysis is also new for every case, as how

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the law applies to those facts must be new. See McGarry v. Board of Cty Comm’rs for Cty. of
Lincoln, 294 F. Supp. 3d at 1188 n.13 (“Cases differ. Many cases, such as this one, have so many
facts that are unlikely to ever occur again in a significantly similar way.”). Thus, if newness, alone,
is the test, courts would always or almost always have discretion to decline supplemental
jurisdiction, which cannot be the test. See supra, Moore, The Supplemental Jurisdiction Statute:
An Important but Controversial Supplement to Federal Jurisdiction, 41 Emory L.J. at 62-63.
Novel does not just mean new, however. See Oxford English Dictionary (online ed.
2018)(defining novel as “interestingly new or unusual”) available at http://www.oed.com/
view/Entry/128758?rskey=g8PS24&result=2&isAdvanced=false#eid; Merriam-Webster, (online
ed. 2018)(defining novel as “original or striking especially in conception or style”) available at
https://www.merriam-webster.com/dictionary/novel?src=search-dict-hed. Novel, accordingly,
means both new and noteworthy. Some of the cases construing novel have attuned to that
noteworthy component. See Dream Palace v. Cty. of Maricopa, 384 F.3d at 1022 (determining a
state issue was novel, because it concerned “issues of the balance of power between state and local
authorities in Arizona”); Doe v. Sundquist, 106 F.3d at 708 (concluding an issue was novel,
because it involved interpretation of the state constitution). As the state’s controlling document,
interpreting a state constitution, especially on a matter that a state court had not yet considered,
would matter a great deal to that sovereign. Similarly, adjudicating a new issue which upsets the
balance of power between the state and local authorities would be of great importance to that state.
In contrast, a regular tort claim, albeit with new issues, might be of less concern to the state,
especially if the litigants are private actors. To be sure, a district court’s ruling is binding only on
the parties and can be only persuasive authority in subsequent cases. That does not mean, however,
that state courts would not want to decide the issue first. A first reasoned decision in an area of

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law can act as a powerful anchor to a position or a legal rule, requiring litigants opposed to that
position to overcome it -- both in court and in settlement negotiations.
With those thoughts in mind, the Court concludes that a state law issue is novel when it is:
(i) new; and (ii) concerns a notable state matter. This test is subject to a sliding scale. If a case
merely has new facts, but the Court is equipped with settled caselaw, the Court is unlikely to
determine that there is a novel issue even if it involves a high-stakes state matter. For example, if
the Court is confronted with a state constitutional issue that involves fairly original facts, the Court
will not deem the issue novel if the Supreme Court of New Mexico has interpreted the state
constitutional provision at issue. The Court is also unlikely to conclude an issue is novel, merely
because there are no state court cases interpreting a relevant statute. While such a scenario might
be sufficiently new under the first prong of the Court’s test, any given state statute does not
necessarily concern a sufficiently notable state matter. If, for example, statutory interpretation
would require the court only to determine the rights or duties between private parties, such as when
the Court is interpreting a statute like the Uniform Commercial Code, the Court is less likely to
find the issue a notable state matter. If, on the other hand, the outcome of the Court’s statutory
interpretation would greatly affect the balance of power between state and local authorities, the
Court is more likely to determine that a matter is notable.
The Court deems that this test is appropriate, as it not only accounts for 28 U.S.C.
§ 1367(c)(1)’s meaning of novel, but also respects the federalism and comity considerations
articulated in United Mine Workers v. Gibbs. See United Mine Workers v. Gibbs, 383 U.S. at 726
(“Needless decisions of state law should be avoided both as a matter of comity and to promote
justice between the parties by procuring for them a surer-footed reading of applicable law.”). The
state sovereign would be less concerned with a federal court deciding a state issue that has limited

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impact on a state law’s application or meaning, but would be more concerned if the federal court’s
determination skews the state’s jurisprudence on a significant state issue for years to come. Those
considerations are especially significant when the issue is currently being litigated in state courts.
See Rhines v. Weber, 544 U.S. 269, 274 (2005)(defining comity as the principle that “one court
should defer action on causes properly within its jurisdiction until the courts of another sovereignty
with concurrent powers, and already cognizant of the litigations, have had an opportunity to pass
on the matter”); Harjo v. City of Albuquerque, 307 F. Supp. 3d 1163, 1222 (D.N.M. Mar. 30,
2018)(Browning, J.). The Court, accordingly, adopts for the foregoing test.
ANALYSIS
The Court concludes that it will not exercise supplemental jurisdiction, because the Court
has dismissed all claims over which it has original jurisdiction.

The Tenth Circuit views

supplemental jurisdiction not as a litigant’s right, but as a matter of judicial discretion. See Estate
of Harshman v. Jackson Hole Mountain Resort Corp., 379 F.3d at 1165 (citing City of Chi. v. Int’l
Coll. of Surgeons, 522 U.S. at 173). In circumstances where the supplemental jurisdiction statute,
28 U.S.C. § 1367, may support supplemental jurisdiction, the district court retains discretion to
decline to exercise that jurisdiction. Congress’ supplemental jurisdiction statute enumerates four
factors that the court should consider:
(1)

the claim raises a novel or complex issue of State law,

(2)

the claim substantially predominates over the claim or claims over which
the district court has original jurisdiction,

(3)

the district court has dismissed all claims over which it has original
jurisdiction, or

(4)

in exceptional circumstances, there are other compelling reasons for
declining jurisdiction.

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28 U.S.C. § 1367(c). In applying these factors, district courts should seek to exercise supplemental
jurisdiction in an effort to “vindicate values of economy, convenience, fairness, and comity. . . .”
Estate of Harshman v. Jackson Hole Mountain Resort Corp., 379 F.3d at 1164. Numerous courts
have acknowledged that 28 U.S.C. § 1367(c) necessarily changes the district courts’ supplemental
jurisdiction discretion analysis and that, unless one of the conditions of 28 U.S.C. § 1367(c) exists,
courts are not free to decline jurisdiction. See See Itar-Tass Russian News Agency v. Russian
Kurier, Inc., 140 F.3d at 447; McLaurin v. Prater, 30 F.3d at 985; Exec. Software N. Am. v. U.S.
Dist. Ct., 24 F.3d at 1557, overruled on other grounds by Cal. Dep’t of Water Res. v. Powerex
Corp., 533 F.3d 1087; Palmer v. Hosp. Auth., 22 F.3d at 1569; Bonadeo v. Lujan, 2009 WL
1324119, at *9; Gudenkauf v. Stauffer Commc’ns, Inc., 896 F. Supp. at 1084.
The Tenth Circuit has held that district courts should presume to decline jurisdiction over
state claims when federal claims no longer remain: “When all federal claims have been dismissed,
the court may, and usually should, decline to exercise jurisdiction over any remaining state
claims.” Koch v. City of Del City, 660 F.3d at 1248 (quoting Smith v. City of Enid ex rel. Enid
City Comm’n, 149 F.3d at 1156). The Court consistently has declined to exercise supplemental
jurisdiction when it dismisses all of a case’s federal claims with prejudice. See, e.g., McGarry v.
Bd. of Cty. Comm’rs for Cty. of Lincoln, 294 F. Supp. 3d at 1206 (“The only remaining claim
before the Court is [a state law claim]. . . . The Court declines to exercise supplemental jurisdiction
over that claim.”); Parrish v. Roosevelt Cty. Board of Cty. Comm’rs, 2017 WL 6759103, at *20
(“The Court declines to exercise supplemental jurisdiction over Parrish’s remaining state-law
breach-of-contract claim.”); Martinez v. Guadalupe Cty, 200 F. Supp. 3d at 1265.
The remaining claims are Counts V, VIII, and IX. See Remand Order at 2-3. The Court
declines to exercise supplemental jurisdiction over these claims. See 28 U.S.C. § 1367(c)(3);

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Carlsbad Tech., Inc. v. HIF Bio, Inc., 556 U.S. 635, 639 (2009)(“A district court's decision whether
to exercise that jurisdiction after dismissing every claim over which it had original jurisdiction is
purely discretionary.”); United States v. Botefuhr, 309 F.3d 1263, 1273 (10th Cir.
2002)(concluding that, if a district court has not already spent a good deal of time and energy on a
state law claim, then it “should normally dismiss supplemental state law claims after all of the
federal claims have been dismissed”). In Count V, Favela alleges that Memorial Medical and
Dr. Wilhelm failed to obtain his informed consent to treatment, as state law requires, or should
have known that any consent was given “under duress and/or revoked by Plaintiff prior to
treatment,” Complaint ¶ 95, at 13, and thus “failed to comport with professional standards,”
Complaint ¶ 96, at 13. See id. ¶¶ 93-96, at 13. At the November 1, 2019, hearing, the Court noted
that Count V -- in which Favela alleges that Memorial Medical and Dr. Wilhelm treated Favela
without obtaining informed consent, see Complaint ¶ 93, at 13 -- raises an issue of law that the
Supreme Court of New Mexico has not addressed, see Tr. at 10:1-7 (Court), which is whether a
hospital owes a duty to obtain a patient’s informed consent to treatment ordered by a non-employee
physician. The Court noted that deciding this issue would require the Court to predict “what the
Supreme Court of New Mexico would do.” Tr. at 10:3-7 (Court)(citing Erie R.R. Co. v. Tompkins,
304 U.S. at 64). Although the Court of Appeals of New Mexico has addressed the informed
consent issue, see Johnson v. Sears, Roebuck & Co., 1992-NMCA-039, 832 P.2d 797; Cooper v.
Curry, 1978-NMCA-104, 589 P.2d 201, the Supreme Court of New Mexico has not. “Under 28
U.S.C. § 1367(c), a district court may decline to exercise supplemental jurisdiction if the claim
raises a novel or complex issue of state law.” Nielander v. Bd. of Cty. Comm’rs of Cty. of
Republic, Kan., 582 F.3d 1155, 1172 (10th Cir. 2009). Moreover, the Court has consistently
declined to exercise supplemental jurisdiction when it dismisses all of a case’s federal claims with

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prejudice. See, e.g., McGarry v. Bd. of Cty. Comm’rs for Cty. of Lincoln, 294 F. Supp. 3d at
1206; Parrish v. Roosevelt Cty. Bd. of Cty. Comm’rs, 2017 WL 6759103, at *20; Martinez v.
Guadalupe Cty, 200 F. Supp. 3d at 1265. The Court concludes that the New Mexico courts are
better suited to address Count V and thus declines to exercise supplemental jurisdiction.
Memorial Medical, Proctor, Pitts, Reveles, and Branch argue that the Court should retain
jurisdiction over Counts VIII and IX, because the Court already took “a position as to the facts and
the law regarding” these Counts in the June 27 MO. Tr. at 5:6-8 (Morrow). In Count VIII, Favela
alleges that Memorial Medical, Dr. Wilhelm, and Memorial Medical personnel acted in concert
to commit assault and battery against Favela by physically inserting a straight catheter into him to
extract urine. See Complaint ¶¶ 108-11, at 15. In Count IX, Favela alleges that Memorial Medical,
Dr. Wilhelm, and Memorial Medical personnel intentionally and unlawfully confined him in room
18 of Memorial Medical without his consent or a valid arrest, constituting false imprisonment.
See Complaint ¶¶ 113-16, at 15. Each of these claims arises under New Mexico state law. See
Remand Order at 2-3. Memorial Medical, Proctor, Pitts, Reveles, and Branch argue that much of
the June 27 MO’s analysis is “directly on point with the assault and battery claims and the false
imprisonment claims that remain pending before this court.” Tr. at 6:25-7:3 (Morrow). Favela
counters that, when the Court issued the June 27 MO, the “facts with respect to the hospital
defendants were not ripe for decision” and that, in the interim, the parties have “had so much time
to conduct discovery and flesh out some of the other facts.” June 27 MO at 17:9:-12 (Coronado).
Moreover, the June 27 MO addressed issues that “were case specific to Las Cruces PD, and not to
the hospital defendants.” Tr. at 19:11-17 (Coronado).
The Court will decline to exercise supplemental jurisdiction over Counts VII and IX for
the remaining Defendants. At the November 1, 2019, hearing, the Court noted that parties may

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“concede certain facts” when one party files a motion for summary judgment, but that, when there
is another motion for summary judgment, the parties “may not concede those facts” or the facts
may be different. Tr. 12:20-25 (Court). That the Court granted summary judgment to Soto on
Counts VIII and IX in the June 27 MO, see June 27 MO at 118, 398 F. Supp. 3d at 942, does not
necessitate that the Court grant summary judgment to the remaining Defendants on the same
Counts. Furthermore, when the Court issued the June 27 MO dismissing Counts VIII and IX
against Soto, the case “still had federal claims.” Tr. 7:12 (Morrow). Now, however, there are no
federal claims remaining. See Remand Order at 2; Tr. at 4:19-24 (Morrow). The Tenth Circuit
instructs that, “‘[w]hen all federal claims have been dismissed, the court may and usually should
decline to exercise jurisdiction over any remaining state claims.’” Tr. at 11:6-8 (Court)(quoting
Kock v. City of Del City, 660 F.3d at 1248 (quoting Smith v. Enid ex rel. Enid City Comm’n, 149
F.3d at 1156)). See Armijo v. New Mexico, 2009 WL 3672828, at *4 (“The Supreme Court and
the Tenth Circuit have not only acknowledged such a result, they have encouraged it.”). The Court
concludes that it will decline to exercise supplemental jurisdiction over Counts VIII and IX with
respect to Memorial Medical, Proctor, Reveles, and Branch.
The Court also has considered and weighed the values of judicial economy, convenience,
fairness, and comity. In this case, after dismissing Favela’s federal law claims, the Court concludes
that remanding the remaining claims to the state court where Favela filed them would best promote
fairness and comity. See United Mine Workers of Am. v. Gibbs, 383 U.S. at 726 (“Needless
decisions of state law should be avoided both as a matter of comity and to promote justice between
the parties, by procuring for them a surer-footed reading of applicable law.”). As this Court
explained in Armijo v. New Mexico, “[t]he New Mexico state courts are more experienced and
knowledgeable about the contours of state law. Also, federal courts should strive to avoid deciding

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issues of state law when, as here, it is possible to do so.” 2009 WL 3672828, at *4. The Court
recognizes that, although Memorial Medical, Proctor, Pitts, Reveles, and Branch did not remove
this case to federal court, see Tr. at 9:6-7 (Morrow); Notice of Removal, filed May 5, 2017
(Doc. 1)(stating that the City of Las Cruces, Dollar, and Soto removed this case on the basis of
federal-question jurisdiction), Favela originally filed this case in state court, see Complaint at 1.
Remanding the case to state court would return it to Favela’s selected forum. Accordingly, the
Court will remand the case to the County of Doña Ana, Third Judicial District Court, State of New
Mexico.

________________________________
UNITED STATES DISTRICT JUDGE
Counsel:
Jose R. Coronado
Law Offices of Jose R. Coronado
Las Cruces, New Mexico
Attorney for the Plaintiff
Damian L. Martínez
Haley R. Grant
Holt Mynatt Martínez P.C.
Las Cruces, New Mexico
Attorneys for Defendants City of Las Cruces ex rel. Las Cruces Police Department,
Matthew Dollar, and Manuel Soto
John Scott Mann
Kathryn Brack Morrow
Mann Morrow, PLLC
Las Cruces, New Mexico
Attorneys for Defendants PHC-Las Cruces, Inc. d/b/a Memorial Medical Center, James
Proctor, R.N., Jamie Pitts, R.N., Jose Reveles, R.N., and Cassandria Branch, R.N.

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