Summary
holding consent to removal was unnecessary if official case file gave no indication that non-removing defendant had been served
Summary of this case from Murillo v. Reliance Standard Life Ins. Co.Opinion
CIVIL ACTION NO. 3:01-CV-1355-G.
September 19, 2001.
MEMORANDUM ORDER
Before the court are motions by each of the defendants to dismiss this case, as well as a motion by the plaintiffs to remand this case to state court. For the reasons stated below, the defendants' motions to dismiss the plaintiffs' claims arising under federal law are granted, and the plaintiffs' motion to remand is denied. On the court's own motion, however, the plaintiffs' claims arising under state law are remanded to the state court from which this case was previously removed.
I. BACKGROUND
This is a civil rights case under 42 U.S.C. § 1983. On or about June 29, 2000, the defendant Tony Jacobs ("Jacobs") reported to the police department of the defendant City of Garland, Texas ("Garland" or "the City") that three pit bulls had been stolen from his residence. Defendant City of Garland's Motion to Dismiss for Failure to State a Claim and Brief in Support ("City's Motion to Dismiss") at 1; Defendant Tony Jacob's Motion to Dismiss for Failure to State a Claim and Brief in Support ("Jacob's Motion to Dismiss") at 1. Almost a year later, Jacobs contacted the Garland Police Department to report that he had found one of the three stolen dogs at 1013 Cherrywood in Garland. City's Motion to Dismiss at 1; see also Jacob's Motion to Dismiss at 1. After receiving sufficient reliable information to establish probable cause that the dog at that location was one of the three previously reported stolen dogs, the dog was seized and placed in the City's Animal Shelter pending completion of the criminal investigation and related proceedings. City's Motion to Dismiss at 1.
A hearing regarding the dog was set for July 5, 2001 in a Garland municipal court. Before the hearing was completed, the judge continued it to July 12 to allow time for pictures of the dog to be taken at the shelter. Id.
On July 12, 2001, the plaintiffs filed this case in the County Court at Law Number 2 of Dallas County, Texas, alleging that a warrantless entry into their backyard and seizure of the dog violated their rights under the United States and Texas constitutions. Id; see Original Petition and Application for Temporary Restraining Order, attached to Notice of Removal as Exhibit 2. On July 13, 2001, the City removed the case to this court on federal question grounds. Notice of Removal at 2.
II. ANALYSIS
All of these motions challenge, on various grounds, the court's power to grant relief in this case. The court will first consider the plaintiffs' motion to remand, since it avers that this court never acquired jurisdiction over the case. For reasons to be discussed, the court concludes that this contention lacks merit. Next, the court considers the defendants' motions to dismiss, which — unopposed as they are by the plaintiffs — the court concludes are meritorious.
A. Motion to Remand
The plaintiffs move to remand this case to the state court on the ground that Jacobs did not consent in writing to the removal at the time the notice of removal was filed. Plaintiffs' Motion and Notice of Motion for Remand at 1.
The City and Jacobs concede that Jacobs did not consent to removal in writing at the time the notice of removal was filed. They argue, however, that his consent was not required because, at the time of removal, the case file at the state courthouse did not disclose that Jacobs had been served. Only defendants who are properly joined and served must consent to the removal. See Farias v. Bexar County Board of Trustees for Mental Health Mental Retardation Services, 925 F.2d 866, 871 (5th Cir.), cert. denied, 502 U.S. 866 (1991). At the time removal was effected, a review of the official case file by counsel for the City gave no indication that Jacobs had been served. Affidavit of Ronald Jones, II at 1-2, located in Appendix to Defendant City of Garland's Response to Plaintiffs' Motion to Remand. Under these circumstances, Jacobs' written consent was unnecessary. Milstead Supply Co. v. Casualty Insurance Co., 797 F. Supp. 569, 571-74 (W.D. Tex. 1992).
B. Motions to Dismiss
As mentioned above, these motions, which are unopposed, state good grounds for dismissing the plaintiffs' federal claims for failure to state a claim on which relief may be granted. The plaintiffs have not alleged a policy or custom on the part of the City that violated their rights, and they have not alleged facts indicating that Jacobs acted under color of state law. Accordingly, the plaintiffs' federal claims are dismissed.
C. Remand of State Law Claims
Federal court jurisdiction exists over an entire action, including state law claims, when the federal and state law claims "`derive from a common nucleus of operative fact' and are `such that [a plaintiff] would ordinarily be expected to try them all in one judicial proceeding.'" Carnegie-Mellon University v. Cohill, 484 U.S. 343, 349 (1988) (quoting United Mine Workers of America v. Gibbs, 383 U.S. 715, 725 (1966)). Yet supplemental jurisdiction over state law claims is a "doctrine of discretion, not of plaintiff's right." Gibbs, 383 U.S. at 726. Consequently, "a federal court should consider and weigh in each case, and at every stage of the litigation, the values of judicial economy, convenience, fairness, and comity in order to decide whether to exercise jurisdiction over a case brought in that court involving pendent state-law claims." Carnegie-Mellon, 484 U.S. at 350.
When the federal claims are dismissed before trial and only state law claims remain, the balance of factors to be considered under the supplemental jurisdiction doctrine weigh heavily in favor of declining jurisdiction; therefore, the federal court should usually decline the exercise of jurisdiction over the remaining claims and send them to state court. See id. at n. 7. According to the Fifth Circuit, "[o]ur general rule is to dismiss state claims when the federal claims to which they are pendent are dismissed." Parker Parsley Petroleum Co. v. Dresser Industries, 972 F.2d 580, 585 (5th Cir. 1992) (citing Wong v. Stripling, 881 F.2d 200, 204 (5th Cir. 1989)).
In the instant case, the plaintiffs' federal claims have been dismissed and only state law claims remain. Because the federal claims are being dismissed before trial, the factors of judicial economy, convenience, fairness, and comity suggest that this court ought to decline jurisdiction over the remaining state law claims against these defendants. See 28 U.S.C. § 1367(c)(3).
III. CONCLUSION
For the reasons stated above, the plaintiffs' motion to remand is DENIED, and the defendants' motions to dismiss the plaintiffs' claims arising under federal law are GRANTED. On the court's own motion, the plaintiffs' claims under state law are REMANDED to the County Court at Law Number 2 of Dallas County, Texas. The clerk shall mail a certified copy of this memorandum order to the county clerk of Dallas County, Texas. 28 U.S.C. § 1447(c).