United States District Court, D. New Mexico
PROPOSED FINDINGS AND RECOMMENDED
MATTER comes before the Court on Defendant's response
(Doc. 6) to the Court's Order to Show (Doc. 4). In my
Order to Show Cause, I directed Defendant to show cause as to
why this case should not be remanded to state court due to a
lack of federal jurisdiction. In Defendant's response,
Defendant contends that jurisdiction exists for a number of
reasons. Having reviewed Defendant's response, the
relevant law, and being otherwise fully advised, I recommend
remanding this action to state court.
explained more fully in my Order to Show Cause (Doc. 4),
Defendant removed this action to federal court on the basis
of federal question jurisdiction. Defendant represented in
the Notice of Removal that Plaintiff's claim arose under
the Americans with Disabilities Act. Doc. 1 at ¶ 9.
Finding no such claim, and attempting to clarify that
Plaintiff's allegation in the Complaint that he filed an
EEOC charge does not constitute a claim under the ADA, I
ordered Defendant to show cause as to why the case should not
be remanded. Doc. 4.
December 18, 2017, Defendant filed its response and contended
that the case was properly removed for three reasons. First,
Defendant objected to my finding that Plaintiff's lone
claim arose under NMSA 1978, Section 28-1-7. Second,
Defendant objected to my reliance on the oft-stated legal
principle that a plaintiff is master of his or her complaint
and may avoid federal jurisdiction by exclusive reliance on
state law. Finally, and closely related to Defendant's
first objection, Defendant objected to my finding that
Plaintiff's representation in his charge of
discrimination that he was discriminated against contrary to
the Americans with Disabilities Act is insufficient to
establish federal question jurisdiction. The common theme of
Defendant's objections is that because Plaintiff did not
properly exhaust state law administrative remedies to assert
a cause of action under the New Mexico Human Rights Act but
did file a charge with EEOC, Plaintiff is only able to assert
a claim under the ADA and federal jurisdiction is therefore
Courts are courts of limited jurisdiction, they must have a
statutory basis for their jurisdiction.” Morris v.
City of Hobart, 39 F.3d 1105, 1111 (10th Cir. 1994).
Under 28 U.S.C. § 1331, federal-question jurisdiction
exists for all claims “arising under the Constitution,
laws, or treaties of the United States.” “A case
arises under federal law if its “well-pleaded complaint
establishes either that federal law creates the cause of
action or that the plaintiff's right to relief
necessarily depends on resolution of a substantial question
of federal law.” Morris, 39 F.3d at 1111
(internal quotation marks and citation omitted).
Court first reiterates that, contrary to Defendant's
Notice of Removal, no claim under the ADA is asserted in
Plaintiff's Complaint. A “suit arises under the law
that creates the cause of action.” Merrel Dow
Pharmaceuticals Inc. v. Thompson, 478 U.S. 804, 808
(1986) (internal quotation omitted). Here, Plaintiff's
Complaint claims that he is attempting to appeal a notice of
non-determination from the Department of Workforce Solutions
pursuant to NMSA 1978, Section 28-1-13 and assert a cause of
action under the New Mexico Human Rights Act, 28-1-7. Neither
of these are federal laws and it is furthermore immaterial to
the determination of federal jurisdiction whether Plaintiff
failed to actually exhaust his administrative remedies before
the appropriate state agencies before bringing these claims.
What is material is whether a cause of action arising under
federal law appears on the face of Plaintiff's Complaint.
To this point, the Court reiterates that Plaintiff's
allegation that he filed a charge with the EEOC does not
state a cause of action under the ADA. Even if Plaintiff
could assert a cause of action under the ADA, and
appropriately exhausted his administrative remedies with the
EEOC, the fact remains that he did not do so.
Despite Defendant's contention otherwise, the United
States Supreme Court has stated that a plaintiff “may
avoid federal jurisdiction by exclusive reliance on state
law.” Caterpillar, Inc. v. Williams, 482 U.S.
386, 392 (1987).
appears that Plaintiff chose not to pursue a claim under the
ADA but instead chose to proceed fully under the New Mexico
Human Rights Act. Even if Plaintiff inadvertently failed to
file an ADA claim, however, the Court cannot impose on his
Complaint a cause of action he did not plead. This remains
true regardless of the administrative steps he complied with
in order to assert such a claim. See Heckelmann v. Piping
Companies, Inc., 904 F.Supp. 1257, 1260 (N.D. Okla.
1995) (“Jurisdiction may not be sustained on a theory
that the plaintiff has not advanced.”). Accordingly, I
first recommend finding that no federal cause of action
exists on the face of Plaintiff's Complaint. Because no
federal cause of action is asserted in Plaintiff's
Complaint, the next inquiry is whether Plaintiff's right
to relief necessarily depends on resolution of a substantial
question of federal law. See id.
Tenth Circuit has held in a slightly different context, a
plaintiff's decision to assert only state law claims of
discrimination do not implicate substantial questions of
federal law. See Hooten v. Ikard Servi Gas, 525 Fed.
App'x 663, 669 (10th Cir. 2013). In Hooten, the
plaintiff contended that his claims under the New Mexico
Human Rights Act for age and disability discrimination
presented substantial question of federal law. The Tenth
Circuit rejected this argument and concluded that the
plaintiff could not “convert the state-law claims to
federal claims by resorting to the ‘substantial
question' branch of federal question jurisdiction.”
Id.; see also Heckelmann, 904 F.Supp. at 1262
(concluding that federal jurisdiction did not exist where the
plaintiff chose to pursue only state law discrimination
claims instead of any available federal remedies). Thus, to
the extent that Defendant is contending that Plaintiff's
claims raise substantial questions of federal law, I
similarly recommend rejecting that argument.
foregoing reasons, I recommend denying Defendant's
objections to my Order to Show Cause (Doc. 6) and remanding
this matter to state court due to the lack of subject matter
PARTIES ARE FURTHER NOTIFIED THAT WITHIN 14 DAYS OF
SERVICE of a copy of these Proposed Findings and
Recommended Disposition they may file written objections with
the Clerk of the District Court pursuant to 28 U.S.C. §
636(b)(1). A party must file any objections with the
Clerk of the District Court within the fourteen-day period if
that party wants to have appellate review of the ...