United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
matter is before the Court on Plaintiff's Motion to
Recognize the Timely Filing of the Amended Complaint as a
Matter of Right and Motion for Discretionary Remand to State
Court Based on the Absence of a Federal Claim (Doc. 27),
filed May 8, 2017, and Plaintiff's Motion to Dismiss
Federal Claim or, in the Alternative, Accept the Amended
Complaint as a Disavowal of any Federal Claim (Doc. 29),
filed on May 8, 2017. For the reasons explained below, the
Court grants Plaintiff's request to recognize the amended
complaint as timely filed. Further, the Court, in its
discretion, declines to exercise supplemental jurisdiction
over the amended complaint and, therefore, remands the matter
to state court. Finally, the Court denies Plaintiff's
motion to dismiss her federal claims as moot.
was employed as an attorney in Defendant New Mexico Attorney
General's Office from approximately June 2008 through
December 2014. On April 27, 2016, Plaintiff filed a complaint
in the First Judicial District Court, County of Santa Fe,
State of New Mexico, against Defendants (collectively, NMAGO)
alleging the following: Count 1, discrimination on the basis
of her physical disability “as defined by the Human
Rights Act and the Americans with Disabilities Act (ADA),
” and citing “NMSA 1978, § 28-1-2 (2007), -7
(2004 and 42 U.S.C. § 12112;” Count 2,
discrimination by failing to provide a reasonable
accommodation, “ in violation of the ADA and the Human
Rights Act;” and Count 3, retaliation for requesting a
reasonable accommodation, “a protected activity under
the Human Rights Act and the ADA.” (Doc. 1-3).
December 29, 2016, NMAGO timely filed its Notice of Removal,
asserting original (federal question) jurisdiction, as
provided in 28 U.S.C. § 1441(c)(1), in that the
complaint brought federal claims under the ADA. (Doc. 1).
January 19, 2017, Plaintiff filed her amended complaint,
(Doc. 7), pursuant to Fed.R.Civ.P. 15(a)(1)(B), alleging the
following: Count 1, discrimination based on her disability as
defined by the Human Rights Act, NMSA 1978, § 28-1-2
(2007), -7 (2004); Count 2, discrimination by failing to
provide a reasonable accommodation, in violation of the Human
Rights Act; and Count 3, retaliation for requesting a
reasonable accommodation, a protected activity under the
Human Rights Act. The amended complaint, thus, eliminates any
claim under the ADA and brings only state claims.
on January 25, 2017, Plaintiff filed her motion to remand for
lack of federal jurisdiction. (Doc. 9). NMAGO filed its
response in opposition, (Doc. 15); and Plaintiff filed her
reply, (Doc. 17). On April 20, 2017, this Court held a
hearing on the motion to remand and, after hearing argument,
denied the motion to remand, finding that removal was proper
because the face of the complaint includes federal claims
under the ADA. (Docs. 23, 22).
Court also ordered additional briefing on “(a) whether
[Plaintiff] timely filed her amended complaint” and (b)
if she did, “whether this Court should exercise
supplemental jurisdiction over the state claims in the
amended complaint.” (Doc. 23). Those two issues are now
fully briefed. Specifically, on May 8, 2017, Plaintiff filed
her motion to recognize her amended complaint was timely
filed, (Doc. 27, 28); on May 19, 2017, NMAGO filed a
response, (Doc. 31); and on May 30, 2017, Plaintiff filed her
reply. In addition, on May 8, 2017, Plaintiff filed her
motion to dismiss her federal claim or, alternatively, to
accept the amended complaint as a disavowal of her federal
claim, (Doc. 29); on May 19, 2017, NMAGO filed a response,
(Doc. 32); and on May 30, 2017, Plaintiff filed her reply,
to Recognize Timeliness of Amended Complaint
support of her motion to recognize the timeliness of her
amended complaint, Plaintiff establishes she timely filed the
amended complaint pursuant to Rule 15(a)(1)(B), which
authorizes an amended pleading “if the pleading is one
to which a responsive pleading is required, 21 days after
service of a responsive pleading or 21 days after service of
a motion under Rule 12(b), (e), or (f), whichever is
earlier.” Plaintiff then argues that the Court, in its
discretion, should decline to exercise supplemental
jurisdiction over the amended complaint, which now contains
only state claims, and remand the case to state court. (Doc.
28) at 3. NMAGO does not dispute the timeliness of the
amended complaint. Instead, NMAGO urges this Court to
exercise supplemental jurisdiction over the amended
complaint, arguing Plaintiff may not amend her complaint
solely to divest this Court of federal jurisdiction. (Doc.
31) at 3-4.
quite clear from her filings Plaintiff prefers to litigate
her state claims in state court and, therefore,
“disavows” her federal claims and seeks remand.
NMAGO correctly argues it is impermissible to amend a
complaint post-removal solely to escape federal jurisdiction,
citing for example, St. Paul Mercury Indem. Co. v. Red
Cab Co., 303 U.S. 283, 294 (1938); Bouie v. Equistar
Chem., L.P., 188 F.Appx. 233 (5th Cir. 2006);
Ching v. Mitre Corp., 921 F.2d 11
(1stCir. 1990); Medel v. Travis Cty. Juvenile
Prob. Dep't, 2011 WL 672310 (W.D. Tex.);
Greenwald v. Palm Beach Cty., ex rel. Bd. of County
Com'rs, 796 F.Supp. 1506 (S.D. Fla. 1992). Even so,
and having determined the amended complaint is timely, the
next question remains whether this Court, independent of
Plaintiff's preferences, should exercise supplemental
jurisdiction over Plaintiff's state law claims.
under 28 U.S.C. § 1367(c)(3), a district court has the
discretion to decline to exercise supplemental jurisdiction
over state claims if “the district court has dismissed
all claims over which it has original jurisdiction.”
The Tenth Circuit has “generally held that if federal
claims are dismissed before trial, leaving only issues of
state law, the federal court should decline the exercise of
[supplemental] jurisdiction. . . .” Brooks v.
Gaenzle, 614 F.3d 1213, 1229 (10th Cir. 2010).
“Notions of comity and federalism demand that a state
court try its own lawsuits, absent compelling reasons to the
contrary.” Thatcher Enters. v. Cache Cnty.
Corp., 902 F.2d 1472, 1478 (10th Cir. 1990). The Court
considers the interests of judicial economy, convenience,
fairness, and comity when determining whether to exercise
supplemental jurisdiction over the state claims. Id.
the interests of judicial economy, convenience, fairness, and
comity would not be served by retaining supplemental
jurisdiction over the state claims. Id. Taking into
consideration the foregoing factors, and following Tenth
Circuit precedent, the Court declines to exercise
supplemental jurisdiction over the state claims. Hence, the
Court will remand this case to the First Judicial District
Court, County of Santa Fe, State of New Mexico.
the Court remands Plaintiff's case to state court, it,
nevertheless, considers Plaintiff's motion to dismiss.
Plaintiff argues, in part, that she “never intended to
raise an ADA claim and never would have intended to litigate
such a claim in federal court without a waiver of sovereign
immunity from Defendants.” (Doc. 29) at ¶ 11.
Perhaps, although the Court remains somewhat mystified that
Plaintiff referred to the ADA at all in the original
complaint. Even so, the Court ...