Aus et al v. Salt Lake County et al

Filing 179

MEMORANDUM DECISION denying 174 Motion to Remand to State Court and Ordering that the instant action be DISMISSED without prejudice. Case closed. Signed by Judge Jill N. Parrish on 10/27/21. (alf)

IN THE UNITED STATES DISTRICT COURT

FILED
2021 OCT 27 PM 12:21
CLERK
U.S. DISTRICT COURT

FOR THE DISTRICT OF UTAH
MEMORANDUM DECISION AND
ORDER DENYING WELLCON’S
MOTION TO REMAND AND
DISMISSING REMAINING MEDICAL
NEGLIGENCE CLAIM WITHOUT
PREJUDICE

JASON AUS, JANIS AUS, and the ESTATE
OF JEREMY AUS,
Plaintiffs,
v.
SALT LAKE COUNTY, JAMES WINDER,
WELLCON, INC., and JOHN and JANE
DOES 1-10,

Case No. 2:16-cv-00266-JNP-CMR

Defendants.

District Judge Jill N. Parrish

Before the court is Defendant Wellcon, Inc.’s (“Wellcon”) Motion to Remand this Case to
State Court. ECF No. 174. The court has concluded that oral argument on the Motion would not
be helpful and will accordingly decide the Motion on the written memoranda of the parties. See
DUCIVR 7-1(f). Having carefully reviewed the parties’ written memoranda and the relevant law,
the court DENIES the Motion to Remand, but ORDERS that the instant action be DISMISSED
WITHOUT PREJUDICE.
BACKGROUND
On April 4, 2016, Jason Aus, Janis Aus, and the Estate of Jeremy Aus (collectively,
“Plaintiffs”) filed a complaint against Defendants Salt Lake County and James Winder
(collectively, “County Defendants”) in federal court, alleging that County Defendants failed to
provide adequate medical care in violation of 42 U.S.C. § 1983. ECF No. 2. On February 15,
2017, Plaintiffs amended their complaint to add Wellcon as a defendant to their § 1983 claim,
ECF No. 31, and on May 18, 2017, Plaintiffs filed a second amended complaint, which added a
1

state law medical negligence claim against Wellcon, ECF No. 50. Because both Plaintiffs and
Wellcon are citizens of Utah, the court only had subject matter jurisdiction over the state law
medical negligence claim through exercise of supplemental jurisdiction. See id. ¶¶ 4–5, 9; 28
U.S.C. § 1367.
Over the following several years, the parties engaged in discovery and motion practice
and, on April 17, 2020, the court set trial to begin on November 16, 2020. See ECF No. 143.
However, because of COVID-19, the trial was initially rescheduled for April 5, 2021, ECF No.
157, and then subsequently rescheduled to its current date, December 6, 2021, ECF No. 166.
During this time, the parties engaged in settlement negotiations and, on September 29, 2021, an
agreement was reached as to all of the § 1983 claims. ECF No. 172. Accordingly, on October 24,
2021, Plaintiffs filed a Stipulation of Dismissal with Prejudice as to the County Defendants and
the § 1983 claim against Wellcon, ECF No. 177, and the court ordered such dismissals on
October 25, 2021, ECF No. 178.
Consequently, the only claim remaining in the instant action is the state law medical
negligence claim against Wellcon. Wellcon moved to remand this claim to Utah state court. ECF
No. 174.
ANALYSIS
As an initial matter, the court agrees with Plaintiffs that the instant case cannot be
remanded to state court. When a case is originally filed in federal court, remand to state court is
not available. Wittner v. Banner Health, 720 F.3d 770, 781 (10th Cir. 2013) (“[B]ecause this
action was never filed in state court and removed to federal court, it cannot be ‘remanded’—only
cases that have been removed from a given court can be remanded to that court.”). Here,
Plaintiffs’ claims against Wellcon were filed in federal court, ECF Nos. 31, 50, and, up to this

2

point, the claims have been litigated exclusively in federal court. Accordingly, the court cannot
remand Plaintiffs’ remaining medical negligence claim against Wellcon to Utah state court.
That said, when a federal district court has jurisdiction over a claim as a result of
supplemental jurisdiction, the district court “may decline to exercise supplemental jurisdiction” if
“the district court has dismissed all claims over which it has original jurisdiction.” 28 U.S.C. §
1367(c)(3). Here, the court had original jurisdiction over the § 1983 claims against the County
Defendants and Wellcon because those claims presented federal questions. See 28 U.S.C. § 1331.
The court’s jurisdiction over the state law medical negligence claim against Wellcon, on the other
hand, was solely a result of supplemental jurisdiction because Plaintiffs and Wellcon are both
citizens of Utah and, thus, nondiverse. See 28 U.S.C. §§ 1332, 1367. Because the court has
dismissed all of the claims over which it had original jurisdiction, the court now has the
discretion to decline to exercise supplemental jurisdiction over the remaining medical negligence
claim. See 28 U.S.C. § 1367.
Both the United States Supreme Court and the Tenth Circuit have encouraged district
courts to dismiss (or remand) supplemental state claims when the claim or claims that initially
gave rise to federal court jurisdiction have been dismissed before trial. See, e.g., United Mine
Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966) (“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.”); Barnett v. Hall, Estill, Hardwick, Gable, Golden & Nelson, P.C.,
956 F.3d 1228, 1238 (10th Cir. 2020) (“The Supreme Court has encouraged the practice of
dismissing state claims or remanding them to state court when the federal claims to which they
are supplemental have dropped out before trial.”); Koch v. City of Del City, 660 F.3d 1228, 1248
(10th Cir. 2011) (“When all federal claims have been dismissed, the court may, and usually

3

should, decline to exercise jurisdiction over any remaining state claims.” (citation omitted));
United States v. Botefuhr, 309 F.3d 1263, 1273 (10th Cir. 2002) (“[A] district court should
normally dismiss supplemental state law claims after all federal claims have been dismissed,
particularly when the federal claims are dismissed before trial.”). The usual practice is to dismiss
the claim or claims without prejudice so that the plaintiff can pursue them in state court. See Ball
v. Renner, 54 F.3d 664, 669 (10th Cir. 1995) (explaining that, when a state law claim or claims
are “no longer supplemental to any federal question claim,” “the most common response . . . has
been to dismiss the state law claim or claims without prejudice”); see also Nwosun v. Gen. Mills
Rests., 124 F.3d 1255, 1258 (10th Cir. 1997) (“When a federal claim is disposed of pretrial, any
supplemental state claims are generally dismissed without prejudice.”).
When deciding whether to dismiss supplemental state claims, district courts consider
judicial economy, convenience, fairness, and comity. See Carnegie-Mellon Univ. v. Cohill, 484
U.S. 343, 350 n.7 (1988); McWilliams v. Jefferson Cnty., 463 F.3d 1113, 1117–18 (10th Cir.
2006). As the case law discussed above indicates, “in the usual case in which all federal-law
claims are eliminated before trial, the balance of factors to be considered under the pendent
jurisdiction doctrine—judicial economy, convenience, fairness, and comity—will point toward
declining to exercise jurisdiction over the remaining state-law claims.” Cohill, 484 U.S. at 350
n.7. Likewise, here, the court concludes that these factors, coupled with the presumption in favor
of dismissing supplemental state law claims, render it appropriate for the court to dismiss
Plaintiffs’ remaining state law medical negligence claim against Wellcon without prejudice.
First, with respect to judicial economy, the court is cognizant of the fact that more than
four years have passed since Plaintiffs filed the medical negligence claim against Wellcon. ECF
No. 50. However, during this period, most of the activity in this case has focused on the federal §

4

1983 claims, which the parties resolved on September 29, 2021, and the court dismissed on
October 25, 2021. ECF Nos. 172, 178.
In addition, although trial is scheduled to begin on December 6, 2021, the parties have yet
to file any Daubert motions, motions in limine, or trial briefs. The parties also have not yet
submitted proposed jury instructions, voir dire questions, or witness lists, and the court has yet to
hold the final pretrial conference. In short, much work remains to be done before trial. Moreover,
the court would likely need to expend significant resources to actually try this case, since it is
currently scheduled for a two-week trial.
The court concludes that the judicial economy factor weighs in favor of the court
dismissing the case without prejudice, especially because the court is facing a backlog of trials
due to the disruption caused by the COVID-19 pandemic. It is more appropriate for its limited
resources to be used resolving cases over which it has original jurisdiction, as opposed to a case
involving a state law claim between nondiverse parties. The court is also satisfied that
duplication of efforts can be minimized—and judicial economy promoted—because the
discovery conducted in this court can be used in state court. See OneBeacon Am. Ins. Co. v. San
Juan Cnty., No. CIV 11-0991 JB/ACT, 2013 U.S. Dist. LEXIS 156740, at *20–*21 (D.N.M. Oct.
4, 2013) (dismissing without prejudice remaining state law claims between nondiverse parties
and, in making that decision, noting that “[d]iscovery done here can be used in state court”);
Jensen v. Redevelopment Agency of Sandy City, 951 P.2d 735, 738 (Utah 1997).
With respect to convenience, the court acknowledges that it would be more convenient
for the parties to resolve their claim in this court at trial in December 2021. Indeed, the court is
sensitive to the fact that the Utah state courts are also facing a backlog of trials and cases as a
result of the disruption caused by COVID-19 and that, by dismissing this case, there will be

5

inevitable delay in resolving the parties’ claim. However, at least one district court in the Tenth
Circuit has expressed uncertainty as to whether such delay is a sufficient basis to retain
jurisdiction of a state law claim “when the original claims which gave the [c]ourt jurisdiction are
no longer present.” See OneBeacon, 2013 U.S. Dist. LEXIS 156740, at *17–*19 (“Several Tenth
Circuit opinions appear to foreclose the court from considering factors that would otherwise be
compelling reasons to retain jurisdiction, such as . . . that both parties would be disadvantaged by
the inevitable delay that would almost certainly result from not exercising supplemental
jurisdiction.” (internal quotation marks and citation omitted; citing Brooks v. Gaenzle, 614 F.3d
1213 (10th Cir. 2010), Endris v. Sheridan Co. Police Dep’t, 415 F. App’x 34 (10th Cir. 2011)
(unpublished)).
In terms of fairness, the court again emphasizes that the only remaining claim is a state
law claim between nondiverse parties. “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 surerfooted reading of applicable law.” Gibbs, 383 U.S. at 726. Accordingly, the court concludes that
the fairness factor weighs in favor of dismissing the remaining medical negligence claim without
prejudice.
Finally, with respect to comity, the court concludes that this factor weighs strongly in
favor of dismissing the remaining state law claim. “Notions of comity and federalism demand
that a state court try its own lawsuits, absent compelling reasons to the contrary.” Ball, 54 F.3d at
669 (quoting Thatcher Enters. v. Cache Cnty. Corp., 902 F.2d 1472, 1478 (10th Cir. 1990)); see
also Trs. of Marion Kingdom Hall of Jehovah’s Witnesses v. City of Marion, 638 F. Supp. 2d 962,
980 (S.D. Ill. 2007) (“Federalism dictates that a state’s own courts should be allowed to decide
issues of state law arising in suits between citizens of that state.” (internal quotation marks and

6

citation omitted)). Apart from the disruption caused by the COVID-19 pandemic—which
supports both the court dismissing the claim and the court retaining the claim—the court
identifies no uniquely compelling reasons for the court to retain the medical negligence claim.
Thus, the court determines that notions of comity counsel the court to dismiss the claim without
prejudice so that Plaintiffs can pursue the state law claim in an appropriate state tribunal.
***
In sum, the court concludes that, when the presumption in favor of district courts
dismissing supplemental state law claims after all federal claims have been dismissed is coupled
with considerations of judicial economy, convenience, fairness, and comity, the scale tips in
favor of the court dismissing the remaining state medical negligence claim against Wellcon.
Accordingly, the court dismisses that claim without prejudice.
CONCLUSION AND ORDER
For the foregoing reasons, Wellcon’s Motion for Remand (ECF No. 174) is DENIED.
However, the court ORDERS that the instant action be DISMISSED WITHOUT PREJUDICE.
DATED October 27, 2021.
BY THE COURT
______________________________
Jill N. Parrish
United States District Court Judge

7