United States District Court, D. New Mexico
December 19, 2016
MICHAEL ST. CLAIR, Plaintiff,
THE GEO GROUP, INC.; FNU DRUMM; FNU HORTON; FNU BEATTY; FNU HATCH, Defendants.
Ward, Los Lunas, New Mexico Attorney for the Plaintiff.
D. White, Yenson, Allen & Wosick, P.C., Albuquerque, New
Mexico Attorney for Defendants The Geo Group, Inc., Beatty,
MEMORANDUM OPINION AND ORDER TO SHOW CAUSE
MATTER comes before the Court on Defendants The Geo Group,
Inc., Beatty, and Hatch's Notice of Removal, filed
November 9, 2016 (Doc. l)("Notice of Removal").
Defendants The Geo Group, Inc., Beatty, and Hatch ("the
Geo Defendants") removed this action to federal court
"because St. Clair asserts federal constitutional
claims, " and "because the parties are citizens of
different states and the amount in controversy exceeds the
sum or value of $75, 000 exclusive of interest and
costs." Notice of Removal at 2. Having reviewed the
pleadings of record, the relevant case law, and otherwise
being fully advised in the premises, the Court will require
the Geo Defendants to show cause why the Court should not
remand this case to the Eighth Judicial District, Union
County, State of New Mexico, for lack of jurisdiction.
2, 2016, Plaintiff Michael St. Clair filed a Complaint For
Damages For Personal Injury against Defendants The Geo Group,
Inc., Drumm, Horton, Beatty, and Hatch in the Eighth Judicial
District, Union County, State of New Mexico (Doc.
l-l)("Complaint"). St. Clair's Complaint seeks
compensatory and punitive damages for injuries that he
sustained during his incarceration at the Northeast New
Mexico Detention Center ("NENMDC") in March and May
of 2013. See Complaint ¶¶ 12-19 &
¶ a, at 2-3. Specifically, St. Clair's Complaint
raises two claims: (i) that Defendants Drumm, Beatty, and
Hath failed to provide medical care after St. Clair slipped
and fell in his cell on March 16, 2013; and (ii) that the Geo
Defendants acted with reckless disregard to St. Clair's
health and safety by exposing him to Phase-4
at NENMDC on May 2, 2013. See Complaint ¶¶
15-26, at 3-4.
statutes are to be strictly construed . . . and all doubts
are to be resolved against removal.” Vajen v.
Found. Reserve Ins. Co., Inc., 683 F.2d 331, 333 (10th
Cir. 1982)(citation omitted). “The party invoking
federal jurisdiction has the burden to establish that it is
proper and there is a presumption against its
existence.” Salzer v. SSM Health Care of Oklahoma,
Inc., 762 F.3d 1130, 1134 (10th Cir. 2014)(internal
quotation marks and citation omitted). Pursuant to 28 U.S.C.
§ 1447(c), a district court must remand a case
“[i]f at any time before final judgment it appears that
[it] lacks subject matter jurisdiction.” 28 U.S.C.
action initially brought in a state court may be removed to a
federal district court pursuant to the authority set forth in
28 U.S.C. § 1441, which states, in pertinent part:
as otherwise expressly provided by Act of Congress, any civil
brought in a State court of which the district courts of the
United States have original jurisdiction, may be removed by
the defendant or the defendants, to the district court of the
United States for the district and division embracing the
place where such action is pending.
28 U.S.C. § 1441(c). “In general, original
jurisdiction is lacking unless there is diversity of
citizenship or a federal question is presented on the face of
the plaintiff's properly pleaded complaint.”
Topeka Hous. Auth. v. Johnson, 404 F.3d 1245, 1247
(10th Cir. 2005)(internal quotation marks and citation
determine whether federal-question jurisdiction exists, the
Court must apply the well-pleaded complaint rule.
Under the well-pleaded complaint rule, in order to invoke
federal question jurisdiction under 28 U.S.C. § 1331,
and thus to be removable on that basis, a federal question
must appear on the face of the plaintiff's complaint;
that the defendant possesses a federal defense is not
sufficient to invoke federal question jurisdiction. . . .
Generally, the plaintiff is the master of his complaint, and
if he files in a state court pleading only state-law causes
of action, the case is not removable to federal court based
on federal question jurisdiction.
Hansen v. Harper Excavating, Inc., 641 F.3d 1216,
1220 (10th Cir. 2011). See Caterpillar Inc. v.
Williams, 482 U.S. 386, 392 (1987)(noting that the
well-pleaded complaint rule “makes the plaintiff the
master of the claim; he or she may avoid federal jurisdiction
by exclusive reliance on state law”). Thus,
“[t]he plaintiff can elect the judicial forum -- state
or federal -- based on how he drafts his complaint. Although
he may not circumvent federal jurisdiction by omitting
federal issues that are essential to his . . . claim . . . he
can nevertheless avoid federal jurisdiction by exclusive
reliance on state law.” Firstenberg v. City of
Santa Fe, 696 F.3d 1018, 1223 (10th Cir. 2012)(internal
quotation marks and citation omitted).
Clair's Complaint does not allege that Defendants'
conduct violated the Constitution, laws, or treaties of the
United States of America. Rather, St. Clair's Complaint
appears to raise only state law claims against the Defendants
for personal injury. Under the well-pleaded complaint rule,
therefore, the Court concludes that a federal question does
not appear on the face of St. Clair's Complaint.
1332(a) of Title 28 of the United States Code governs
diversity jurisdiction and provides that “[t]he
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
between . . . citizens of different State.” 28 U.S.C.
§ 1332(a)(1). Neither the Notice of Removal nor St.
Clair's Complaint identifies the citizenship of the
parties. As the removing parties seeking to invoke
federal jurisdiction, the Geo Defendants bear the burden to
establish that complete diversity of citizenship exists
between the parties. See Middleton v. Stephenson,
749 F.3d 1197, 1200 (10th Cir. 2014)(holding that the party
invoking diversity jurisdiction bears the burden of proving
that there is complete diversity “between all
plaintiffs and all defendants, ” and that “no
plaintiff and no defendant are citizens of the same
state”). The Geo Defendants have failed to fulfill this
burden and, therefore, the Court will require them to show
cause why the Court should not remand to the Eighth Judicial
District, Union County, State of New Mexico.
ORDERED that, within thirty days of the date of this Order,
Defendants The Geo Group, Inc., Beatty, and Hatch shall show
cause why the Court should not remand this action to the
Eighth Judicial District, Union County, State of New Mexico,
for lack of jurisdiction.
“Phase-4 Gas” appears to be
a misnomer. It is not a brand name. Used as a common noun,
“phase-4 gas” is a circumlocution for plasma,
i.e. gas superheated to greater than nine thousand
degrees Fahrenheit. See, e.g., Francis F.
Chen, Introduction to Plasma Physics and Controlled
Fusion 2-4 (3d ed. 2015). NENMDC plausibly has some
equipment, such as an arc welder, that could generate small
amounts of plasma. This plasma could not, however, be
“sprayed” in the manner the Complaint alleges.
See Complaint ¶ 21, at 4. Moreover, exposure to
superheated gas would result in injuries different than those
the Complaint describes. Compare Complaint ¶
22, with Jane Blunt & Nigel C. Balchin,
Health and Safety in Welding and Allied Processes
11-15 (5th ed. 2002). As best the Court can determine, St.
Clair meant to say “Level-4 Gas.” As the National
Fire Protection Association defines the term, a
“level-4 gas” is a gas that could be expected to
kill half of those people exposed to it when it is acutely
inhaled at a concentration of less than or equal to one
thousand parts per million parts air. See National
Fire Protection Association, NFPA 704: Standard System
for the Identification of the Hazards of Materials for
Emergency Response 8 tbl. 5.2 (2017 ed.), available
(last visited December 16, 2016)(free subscription
Although St. Clair's Complaint
alleges that the Geo Group, Inc. “is a Florida
Corporation, ” it fails to contain any factual
allegations regarding the citizenship of the individual
defendants, averring merely that they were “employed by
the Geo Group in 2013 in its Clayton, New Mexico
Facility.” Complaint ¶¶ 2-6, at 1-2.
According to the Complaint, St. Clair “currently
resides in a correctional facility in Kentucky.”
Complaint ¶ 1, at 1. The United States Court of Appeals
for the Tenth Circuit has held that, “[b]ecause
domicile is a voluntary status, a prisoner is presumed to be
a citizen of the state of which he was a citizen before his
incarceration, even if he is subsequently incarcerated in
another state.” Smith v. Cummings, 445 F.3d
1254, 1259 (10th Cir. 2006). Neither the Notice of Removal
nor St. Clair's Complaint contains any factual
allegations regarding St. Clair's citizenship before his
incarceration in Kentucky.