Opinion
4:08-cv-00417 RP-CFB.
January 26, 2009
ORDER ON PLAINTIFF'S MOTION FOR REMAND
Before the Court is Plaintiff, Mary Amerson's ("Amerson") Motion for Remand to State Court, filed January 8, 2009. Clerk's No. 5. Amerson filed a Complaint in the Iowa District Court for Polk County on or about September 18, 2008 against the City of Des Moines, Iowa ("City"). See Clerk's No. 1. The City filed a Notice of Removal on October 17, 2008, pursuant to 28 U.S.C. § 1441(a)-(c), asserting that jurisdiction is proper in the Southern District of Iowa under 28 U.S.C. § 1331. Id. Specifically, the City claims that federal jurisdiction is proper because Amerson claimed violations of her Fourth and Fourteenth Amendment rights under the United States Constitution. On January 8, 2009, Amerson filed the present motion to remand the action to state court. Clerk's No. 5. The City filed a resistance the same day. Clerk's No. 6. The matter is fully submitted.
Amerson did not file a Reply, however, under Local Rule 7.1(g), reply briefs are ordinarily deemed unnecessary, and the Court may rule on a motion without it. See L.R. 7.1(g).
I. THE PETITION
In Amerson's Complaint, she states that on or about August 13, 2008, the City inspected her property and made demands regarding two vehicles thereon which led to an administrative hearing. Compl. ¶¶ 8-9, 13-17. Amerson alleges that the City has used its Nuisance/Beautification ordinance to harass, threaten, and intimidate her, that it has fraudulently caused damage to her real estate and real property interests in two vehicles, and that it is liable for invasion of privacy, defamation of character, and negligence, as well as violations of her constitutional rights under the Fourth and Fourteenth Amendments of the United States Constitution and Article 1, § 8 of the Iowa Constitution. Compl. ¶¶ 7, 22.II. LAW AND ANALYSIS
As a general matter, a civil case brought in state court may be removed by a defendant to federal court if it could have been brought there originally. See 28 U.S.C. § 1441(a); Motion Control Corp. v. SICK, Inc., 354 F.3d 702, 705 (8th Cir. 2003). Federal courts are courts of limited jurisdiction, and "the requirement that jurisdiction be established as a threshold matter springs from the nature and limits of the judicial power of the United States and is inflexible and without exception." Godfrey v. Publitzer Publ'g Co., 161 F.3d 1137, 1141 (8th Cir. 1998) (internal citation and quotations omitted). Title 28, United States Code § 1441(b) provides in relevant part: "Any civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United States shall be removable without regard to the citizenship or residence of the parties." Whether a case has been properly removed is "determined based on the plaintiff's pleadings at the time of removal." Adams v. Bank of Am., N.A., 317 F. Supp. 2d 935, 940 (S.D. Iowa 2004). The presence of even a single federal claim gives the defendant the right to remove an entire case to federal court. Phipps v. F.D.I.C., 417 F.3d 1006, 1010 (8th Cir. 2005) (citing Gaming Corp. of Am. v. Dorsey Whitney, 88 F.3d 536, 543 (8th Cir. 1996)). A defendant who seeks to remove a case to federal court bears the burden of proving that the requirements for diversity jurisdiction have been met. See, e.g., McNutt v. Gen. Motors Acceptance Corp. of Ind., 298 U.S. 178, 189 (1936); Yeldell v. Tutt, 913 F.2d 533, 537 (8th Cir. 1990).
As the City sets forth in its resistance to the Motion to Remand, Amerson's Complaint invokes federal question jurisdiction by asserting claims under the Fourth and Fourteenth Amendments of the Constitution. Def.'s Resistance to Pl.'s Mot. to Remand to State Court ¶ 2. Specifically, Plaintiff pleads a federal cause of action in her Complaint when she states:
• The City "consistently makes the said threats against Amerson (who is African American), and consistently refuses to enforce the same laws against [named person] (a caucasian citizen). . . ." Compl. ¶ 20.
• "The City is giving the appearance that its ordinances and laws are being applied in violation of Iowa Code 729.5 ( 42 U.S.C. 1983) (sic), the practice deprives the citizens of equal protection of the laws in violation of the U.S. Constitution Amendments Article 14.1[,] among other claims." Compl. ¶ 21.
• The City "is negligent in . . . violation the constitutional rights of its Citizens and Amerson under the 4th and 14th Amendments of the U.S. Constitution. . . ." Compl ¶ 22.
With these statements, Amerson states a claim under federal law that originally could have been filed in federal court. Thus, the City had valid grounds to remove her suit to federal court under 28 U.S.C. § 1441(a), and did so in a timely manner. See 28 U.S.C. § 1446(b).
Amerson acknowledges that her Complaint raised issues under the United States Constitution but argues that, under 28 U.S.C. § 1441, removal is a matter of discretion and that there is no need to involve the federal courts in "such trivial issues" as her state law claims against the City. Pl.'s Mot. to Remand ¶¶ 15-18, 20. This argument fails, however, for two reasons.
First, Amerson's Motion to Remand was filed more than 30 days after the filing of the notice of removal. Under 28 U.S.C. § 1447(c): "A motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of the notice of removal under section 1446(a)." As explained above, Amerson has pled a federal question giving the federal courts subject matter jurisdiction over this case. Given that federal jurisdiction is proper under §§ 1331, 1367, and 1441, and the Motion to Remand was filed more than 30 days after the filing of the notice of removal, Amerson's Motion to Remand must be denied.
Further, even if a discretionary remand were not time-barred, the Court would not have discretion to remand Amerson's case to state court under 28 U.S.C. § 1441. Amerson quotes the language of § 1441(a)-(c) in support of her argument that the Court should act with discretion to remand her case to state court, apparently relying on § 1441(c) which provides:
Whenever a separate and independent claim or cause of action within the jurisdiction conferred by section 1331 of this title is joined with one or more otherwise non-removable claims or causes of action, the entire case may be removed and the district court may determine all issues therein, or, in its discretion, may remand all matters in which State law predominates.
But, the placement of the phrase, "[w]henever a separate and independent claim or cause of action within the jurisdiction conferred by section 1331 of this title is joined with one or more otherwise non-removable claims or causes of action . . .", at the beginning of § 1441(c) makes the discretionary remand provision contingent on a finding that there are at least two separate and independent claims or causes of action joined together, one of which presents a federal question, and a second which states only state law claims. "[W]here there is a single wrong to Plaintiff for which relief is sought, arising from an interlocked series of transactions, there is no separate and independent claim or cause of action under § 1441(c)." Am. Fire Cas. Co. v. Finn, 341 U.S. 6, 14 (1951). Thus, "[s]uits involving pendent (now `supplemental') state claims that `derive from a common nucleus of operative fact,' do not fall within the scope of § 1441(c), since pendent claims are not `separate and independent.'" Borough of W. Mifflin v. Lancaster, 45 F.3d 780, 786 (3d Cir. 1995) (citing United Mine Workers v. Gibbs, 383 U.S. 715, 725 (1966) and Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 354 (1988)). Here, Amerson's claims of discrimination under the United States Constitution and her state law claims result from common events: the City's inspection of her property, its demands regarding the vehicles on her property, and the City's conduct in the subsequent administrative hearing. Because Amerson's federal and state claims arise from singular wrongs based on common events, her complaint does not contain separate and independent federal and state claims for the purposes of § 1441(c). Thus, even if Amerson's Motion to Remand had been filed within 30 days after the filing of the notice of removal, the Court would not have discretion to remand Amerson's case to state court under § 1441(c).
Even if there were separate and independent federal and state claims in Amerson's Complaint, the state law claims do not predominate over the federal claims, as required for a discretionary remand under § 1441(c). The Court understands that while Amerson's federal claims may not have been the main thrust of her Complaint, they are presented in her Complaint as more than an "appendage" to her state law claims. See Gibbs, 383 U.S. at 727 ("[R]ecognition of a federal court's wide latitude to decide ancillary questions of state law does not imply that it must tolerate a litigant's effort to impose upon it what is in effect only a state law case. Once it appears that a state claim constitutes the real body of a case, to which the federal claim is only an appendage, the state claim may fairly be dismissed."). Thus, even if her state and federal claims were separate and independent claims for the purposes of § 1441(c), Amerson's state law claims do not predominate for the purposes of § 1441(c), and the Court would not remand this case to state court on that basis.
III. CONCLUSION
For the reasons stated above, Amerson's Motion to Remand to State Court (Clerk's No. 5) is DENIED.IT IS SO ORDERED.