Holden v. Haynes et al
Filing
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ORDER DENYING MOTION TO REMAND. Denying 30 Motion to Remand. Signed by Senior Judge Lonny R. Suko. (RG, Case Administrator)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF WASHINGTON
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BRENDA K. HOLDEN,
Plaintiff,
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NO.
CV-13-0068-LRS
ORDER DENYING MOTION TO REMAND
(ECF NO. 28)
vs.
DARRELL HAYNES; DOE BUSINESS
ENTITIES 1 THROUGH 10,
INCLUSIVE; AND ROE POLICE
OFFICERS 1 THROUGH
20,INCLUSIVE,
Defendants.
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BEFORE THE COURT is Plaintiff’s Expedited Motion For Remand For
Lack of Jurisdiction, ECF No. 28, filed on April 7, 2014 and noted
without oral argument.
Plaintiff moves the Court, pursuant to Fed. R.
Civ. P. 12(h)(3), for immediate remand of this action to the Spokane
County Superior Court (Cause No. 12-2-04033-2) due to this Court’s
alleged lack of both diversity jurisdiction and subject matter
jurisdiction.
Plaintiff bases her motion to remand on the voluntary
dismissal of all federal causes of action for which the removal was
based and that all remaining claims against the remaining Defendant,
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Darrell Haynes, rest on Washington state tort law.
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ORDER - 1
Additionally,
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Plaintiff argues that there was never diversity subject matter
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jurisdiction under 28 U.S.C. §1332(a). Plaintiff claims that because
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Defendant Haynes is an alien (Canadian citizen), his residency does
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not factor into a diversity analysis.
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because this Court has had minimal involvement in this case and all
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remaining claims are based on state law, the Court should remand to
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state court.
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Plaintiff concludes that
Defendant Haynes opposes Plaintiff’s arguments and motion for
remand arguing Plaintiff is in error.
At the time Defendant Haynes
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prepared his response to the instant motion, the Court had not yet
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granted Plaintiff’s request to dismiss her 42 U.S.C. § 1983 claim
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against Mr. Haynes, thus Defendant argued this court still has federal
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question jurisdiction under 28 U.S.C. § 1331.
Defendant Haynes also asserts that diversity jurisdiction is
present because such jurisdiction exists when a resident of one of the
United States sues a resident of a foreign country and the amount in
dispute is more than $75,000. Here, Mr. Haynes is a Canadian citizen,
and Plaintiff claims damages in excess of $1 million. Defendant
concludes that jurisdiction in this Court is appropriate, and the
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Court should reject Plaintiff's motion for remand.
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A.
Brief Summary of Pertinent Facts
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The original complaint commenced October 11, 2012 in Spokane
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County Superior Court and was then removed to federal court on
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February 14, 2013 under 28 U.S.C. § 1441 as a result of the 42 U.S.C.
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§1983 claims against the State of Washington. ECF No. l.
There were
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also 42 U.S.C. § 1983 claims against the State of Washington and
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ORDER - 2
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County of Spokane. ECF No. 1.
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diversity of the party.
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The removal notice did not mention
Both of those governmental Defendants were voluntarily dismissed
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by Plaintiff pursuant to Fed. R. Civ. P. 41(a)(2). ECF Nos. 15 and 18.
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The Court, after Defendant's responsive memorandum was filed, granted
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Plaintiff's unopposed motions to dismiss certain causes of action
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against Defendant Haynes on May 8 and May 9, 2014 (ECF Nos. 40, 41),
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resulting in the elimination of all federal claims in the action.
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Plaintiff indicates that Defendant Raymar Enterprises &
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Transportation (“Raymar”) was named but never served.
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Plaintiff them moved to voluntarily dismiss Defendant Raymar, which
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the Court granted on May 9, 2014.
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ECF No. 41.
ECF No. 2.
The remaining non-Doe
Defendant in this case, Darrell Haynes, was and is a citizen of
Calgary, Alberta, Canada.
ECF No. 12.
a resident of State of Washington.
Plaintiff Brenda K. Holden is
ECF No. 1.
The alleged torts at
issue occurred in Spokane County, State of Washington. ECF No. 1.
B.
Analysis
The original complaint, commenced October 11, 2012, was filed in
state court. On February 7, 2013 Plaintiff accomplished service of the
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amended complaint on the Washington State Patrol.
Plaintiff’s amended
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complaint alleged a federal cause of action. Specifically, Plaintiff
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asserted a 42 U.S.C. § 1983 Fourth Amendment claim and claims under 42
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U.S.C. § 1981.
All defendants who had appeared at that time agreed to
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removal of this action to federal court.
Thus, the suit was removed
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by the Assistant Attorney General pursuant to 28 U.S.C. § 1441 on
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February 14, 2013 based on federal claims, however, no mention was
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ORDER - 3
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made of diversity in the notice of removal. Although not raised by
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Defendant Haynes in the briefing, it may have been that the presence
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of the “Doe Defendants” raised a possible risk of nondiversity.
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purposes of removal, though, “the citizenship of defendants sued under
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fictitious names shall be disregarded.”
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For
See 28 U.S.C. §1441(b)(1).
Plaintiff then filed several motions to dismiss various
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defendants and eliminate all federal claims.
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this motion to remand and Defendant Haynes opposes remand now based on
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diversity.
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1.
Plaintiff then filed
Federal Claim(s) Eliminated–Supplemental Jurisdiction
If a claim “arising under” federal law existed at the time of
removal, the federal court has supplemental jurisdiction to adjudicate
even though the federal claim has been dropped from the case and only
state law claims remain.
Nishimoto v. Federman-Bachrach & Assocs.,
903 F.2d 709, 715 (9th Cir.1990); Anderson v. Aon Corp., 614 F.3d 361,
364-65 (7th Cir.2010) (applies to both voluntary and involuntary
dismissals).
A plaintiff may not compel remand by amending a
complaint to eliminate the federal question upon which removal was
based.
Sparta Surgical Corp. v. National Ass’n of Securities Dealers,
Inc., 159 F.3d 1209, 1213 (9th Cir. 1998).
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In deciding whether to dismiss or remand, the court may consider
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whether plaintiff has engaged in “manipulative tactics”–i.e.,
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dismissing federal claims after removal in order to get back to state
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court.
“If the plaintiff has attempted to manipulate the forum, the
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court should take this behavior into account in determining whether
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the balance of factors to be considered under the pendent jurisdiction
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ORDER - 4
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doctrine support a remand in the case.”
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Cohill, 484 U.S. 343, 357 (1988).
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decision to remand remains discretionary and is dependent upon what
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will best accommodate the values of economy, convenience, fairness and
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comity.
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1991).
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In any event, a district court’s
Harrell v. 20th Century Ins. Co., 934 F.2d 203, 205 (9th Cir.
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Carnegie-Mellon Univ. v.
2.
Diversity
The district court has no discretion to remand a case after
elimination of the federal claim, however, if diversity of citizenship
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then exists under an amended pleading.
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removed a case need not amend its removal notice or file a new notice
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after an amended complaint changes the ground for federal
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jurisdiction.
A party that has properly
Williams v. Costco Wholesale Corp., 471 F.3d 975 (9th
Cir.2006). Once a case has been properly removed, the district court
has jurisdiction over it on all grounds apparent from the complaint,
not just those cited in the removal notice. 28 U.S.C.A. § 1446.
If a
defendant properly removed a state-court civil action on
federal-question grounds, based on the presence of a federal claim in
plaintiff's original complaint, that defendant is not required to
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amend its removal notice or file a new notice after the plaintiff
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filed an amendment to complaint that removed the federal claim(s), but
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that also made clear that requirements for diversity jurisdiction were
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satisfied.
In the Costco case, removal was already perfected under 28
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U.S.C.A. § 1446(b).
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The Ninth Circuit in Costco explained:
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“ If the original complaint in fact supported
federal jurisdiction on both diversity and federal
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question grounds, Costco was not required to list
both grounds in its notice of removal. The civil
removal statute, unlike the removal statute for
criminal cases, has no requirement that all
grounds for removal be listed in the notice.
Compare 28 U.S.C. § 1446(b) with id. §
1446(c)(2).”
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Costco, 471 F.3d at 976 n.1.
The Ninth Circuit further opined in Costco:
We have long held that post-removal amendments to
the pleadings cannot affect whether a case is
removable, because the propriety of removal is
determined solely on the basis of the pleadings
filed in state court. See Sparta Surgical Corp. v.
Nat'l Ass'n of Sec. Dealers, Inc., 159 F.3d 1209,
1213 (9th Cir.1998); O'Halloran v. Univ. of Wash.,
856 F.2d 1375, 1379 (9th Cir.1988). It follows
that a party that has properly removed a case need
not amend its removal notice or file a new notice
after an amended complaint changes the ground for
federal jurisdiction. Because post-removal
pleadings have no bearing on whether the removal
was proper, there is nothing a defendant can or
need do to perfect the removal. See Yarnevic v.
Brink's, Inc., 102 F.3d 753, 755 (4th Cir.1996).
Indeed, the idea of filing a notice of removal in
a case that is already pending in federal court,
having been properly removed is nonsensical.
After all, “a Supplemental Notice of Removal
would, if granted, have the effect of removing a
case that has already been removed.” Nolan v.
Boeing Co., 715 F.Supp. 152, 153 n.1
(E.D.La.1989).
471 F.3d at 976-77.
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In the present case, Plaintiff is a citizen of Washington, and
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Defendant Haynes is a citizen of Canada, a foreign state.
Plaintiff
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claims damages exceeding a million dollars.
Accordingly, this Court
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has diversity jurisdiction pursuant to 28 U.S.C. § 1332(a)(2), which
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reads:
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(a) The district courts shall have original
jurisdiction of all civil actions where the matter
in controversy exceeds the sum or value of
$75,000, exclusive of interest and costs, and is
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between-. . .
(2) citizens of a State and citizens or subjects
of a foreign state, except that the district
courts shall not have original jurisdiction under
this subsection of an action between citizens of a
State and citizens or subjects of a foreign state
who are lawfully admitted for permanent residence
in the United States and are domiciled in the same
State; ...
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Once a case has been properly removed, the district court has
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jurisdiction over it on all grounds apparent from the complaint, not
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just those cited in the removal notice. See Brockman v. Merabank, 40
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F.3d 1013, 1016 (9th Cir.1994). The Court finds that removal was
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already perfected in this case and this Court has diversity
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jurisdiction (the “Doe Defendants” are disregarded) in addition to
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supplemental jurisdiction.
Plaintiff’s attempt to manipulate the
forum is to no avail.
After reviewing the files and records herein, and the Court
having been fully advised, it is hereby:
ORDERED, ADJUDGED AND DECREED that Plaintiff's Motion For Remand
(ECF No. 28), is DENIED.
IT IS SO ORDERED.
The District Court Executive is directed to
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enter this Order.
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DATED this
20th day of May, 2014.
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s/Lonny R. Suko
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LONNY R. SUKO
SENIOR UNITED STATES DISTRICT JUDGE
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ORDER - 7
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