Archuleta (Martinez) v. Lacuesta

respect question Ivy, at trial. to presented evidence each which the state objected at 1288. and the trial court sustained. event, In clearly Nguyen’s this issue was Evidentiary hearing petition on habeas argument. Accordingly, weakest was there Nguyen acknowledges given he was reject no basis for the district court to either hearing post-conviction a on his first state findings the state court’s of fact or to conduct proceeding, but contends he “was never able evidentiary hearing. its own develop present fully and to evidence supporting allegations the factual in the ha Brief, petition.” Opening 90.

beas IV. contention, argues support Nguyen of this judgment of the district AF- court is hearing presided “was a FIRMED. judge predetermined who biased had is hearing evidentiary sues even before the be

gan,” id. at and he was not allowed to

fully experi concerning Silva Silva’s might

ences Vietnam how those

affected his conduct at trial.

Nguyen claims the federal district court evidentiary

should conducted an hear

ing relying of its own rather than on the findings. court’s factual ARCHULETA, Represen Rose Personal Archuleta, tative of the Estate of Marvin entertaining Federal ha courts p pellee, Plain tiff—A petitions give presumption beas must a findings, correctness state courts’ factual adequacy “absent reason to doubt some Wesley LACUESTA, Hensinger, Ronald accuracy proceed fact-finding or the of the Denko, New Mexico Police John State Barnes, ing.” Medina Department, Depart and New Mexico (10th Cir.1995) 2254(d)). (citing Safety, —Ap ment of Public Defendant s presumption not This of correctness does pellants. apply, grant a federal court must hearing, if evidentiary petitioner the habeas No. 96-2221. full, fair, adequate receive Appeals, Court of hearing proceeding in the state court on the United States sought to Tenth Circuit. be raised the habeas petition. Dever v. Kansas State Penitentia Dec. 1531, 1535 Cir.1994). ry, 36 F.3d appeal,

Having reviewed the record on transcript eviden-

which includes

tiary hearing post-conviction pro- in the first

ceeding, conclude was obligated provide Nguyen with new hearing.

evidentiary Although Nguyen con- judge post-

tends the trial who conducted the biased, evidentiary hearing

conviction post- transcript

review of the trial proceeding transcript oth-

conviction reveals Nguyen’s only argument

erwise. other judge fully

that the trial did not allow him to experiences Al-

explore Silva’s Vietnam. true,

though Nguyen note that fails to post-conviction proceeding

at the counsel his with proof

was allowed make an offer of Sullivan, Rothstein L. R. and John

Robert Donatelli, Dahlstrom, Rothstein, Hughes, Mexico, Fe, Sehoenburg, New Cron Santa & Plaintiff-Appellee. for Bureau/RMD, Colon, Legal N. State Louis Mexico, Mexico, Fe, for of New Santa New Defendants-Appellants. ANDERSON, TACHA, and

Before BALDOCK, Judges.* Circuit TACHA, Judge. Circuit originally Rose Archuleta Plaintiff court, this in New Mexico state seek- action ing for damages violations of After Defendants removed the law. case Archuleta filed to federal district the action to state court. motion to remand motion, granted ruling The district court Eleventh barred some Amendment further that federal court and action, including the federal claims the entire Amendment, not the Eleventh removal was should be remanded because 1441(a). not De- authorized remand, or, appeal al- fendants seek ternatively, if we determine that the remand appealable but not be- is reviewable order, they apply for cause it is not a final reversing the remand. writ of mandamus district court remanded ac- Because the however, 1441(c), tion we under 28 U.S.C. do have the to review through appeal or mandamus. order either 1447(d). Consequently, See 28 U.S.C. application appeal for dismiss the mandamus.

Background Archuleta, personal the successor Rose representative of Marvin Ar- of the estate chuleta, brought in the state district suit District, County the Fourth Judicial Mexico, alleging that Miguel, New San New officers used exces- Mexico State Police wrongful sive that resulted in the death force include Archuleta. Defendants Marvin Police, of the New Mexico State chief Department, State Police New Mexico * record, R.App. examining appeal. appellate Fed. P. of this After the briefs mination 34(a); panel case therefore is unanimously has Circ. R. determined that oral 10th 34.1.9. argument. argument materially without oral would not assist the deter- ordered submitted Department Safety, New Mexico of Public had to be remanded to state court “because New Police offi- various Mexico State precludes the Eleventh Amendment this civil complaint cers. Archuleta’s amended assert- being action from one which could have been ed violations of 1983 and the originally filed in federal court” and thus was Act, New Mexico Tort N.M. Claims not removable to federal court under 28 Stat. (Michie § Supp.1996). 41-4-12 Defen- 1441(a). Lacuesta, § Ann. U.S.C. Archuleta v. dants removed the case to the United States (unnumbered 6) slip op. page (citing 28 District Court for the District of New Mexico 1447(c)). 25, by notice of removal filed on October 1995, based on the federal claims under Discussion 31,1995, § 1983. On October Archuleta filed statute, The removal 28 U.S.C. a motion to remand the action to state court 1441(a), part, in [A]ny states relevant “... 1447(e). under 28 U.S.C. brought civil action in a State court of which Opinion In a August Memorandum dated the district courts of the United States have 15, 1996, granted the district court Archule- jurisdiction, original may by be removed the ta’s motion to remand the entire action to ” defendant or the defendants.... Some Citing state court. Pennhurst State School courts, including the Fifth and Seventh Cir Halderman, 89, Hospital & v. 465 U.S. 100- 1441(a)’s cuits, interpreted have reference 03, 900, 907-10, 104 S.Ct. L.Ed.2d a “civil requiring action” as that the feder (1984), Jordan, 651, and Edelman v. 415 U.S. al district court to which the case is removed 94 S.Ct. (or original supplemental) jurisdiction have (1974), explained the court Elev entirety, over the action in foreclosing its enth Amendment bars suits in federal court possibility piecemeal McKay removal. See states, damages against agencies, Boyd 1084, Constr. 769 F.2d 1086-87 capacities, and state officials in their official (5th Cir.1985); Wright, Frances J. v. unless the state im unequivocally waives its (7th 337, Cir.), denied, 340-42 cert. 513 U.S. munity Congress abrogates expressly or 876, 204, 115 S.Ct. 130 L.Ed.2d 134 immunity creating statutory state’s in According McKay, to Frances “if J. and even Lacuesta, cause of action. See Archuleta v. one claim in an action jurisdietionally (unnum MV/DJS, slip op. No. 6:95-CV-1274 by barred from federal court a state’s sover 2) (D.N.M. 1996). page Aug. bered eign immunity, or does not otherwise fit Congress district noted that original supplemental juris within or ... abrogate states’ immu Eleventh Amendment courts, then, of the diction federal as a conse 1983, Quern nity enacting in see 1441(a), quence §of the whole action cannot Jordan, 440 U.S. J., be removed to federal court.” Frances (1979), and that New (citing McKay approval). F.3d at 341 with Mexico has not waived its from suit circuits, however, rejected Other 41-4- see N.M. Stat. Ann. interpretation requiring the dis 4(F) (Michie Thus, Supp.1996). by trict courts to remand those claims barred ruled that it lacked over the jurisdic the Eleventh Amendment and retain defendants, against including the state by tion over the claims not barred the Elev against those the individual state officials in enth Amendment. See Kruse v. capacities, their official under the Eleventh Hawaii (9th Cir.1995); Henry F.3d 334-35 Amendment. The court found that Dist., (6th Metro. Sewer had over Archuleta’s fed Cir.1990). deciding In to remand this case eral claims state officials their entirety, the district court relied on other capacities, though individual it could also district, see, e.g., from the same federal cases supplemental jurisdiction, un exercised (D.N.M. 1367(a), Long, Flores v. der 28 over the state law 1995), dismissed, appeal 110 F.3d 730 Cir.1997), Nevertheless, approach capacities. and followed the action, Archuleta v. determined that the Fifth and Seventh Circuits. See entire (unnumbered 4). Lacuesta, jurisdiction, slip op. page those claims over which it had Flores, yet reviewable under has not had The Tenth Circuit Flores, explained that we presence whether the at 732. In we to decide opportunity by independent review the Amend- the Eleventh will determine of claims civil case requires grounds remand of an entire which ment actual removed, empowered it was remand. Id. state court from which it was to the believed by the only remand of the claims barred not be correct The district court need do not determine Eleventh Amendment. We that it lacked determination however, Tenth will today approach Circuit long as it made that so 1447(d), because, follow under 28 U.S.C. good faith. See id. determination the remand lack to review we Flores, ruling interpreted order. faith determination district court as is dictated our decision This result subject matter court lacked that the district Cir.1997). Long, 110 Flores v. First, it reasons. for two nearly to those involved facts identical Flores for the Flores district court reasonable presented in this case. The district immunity as a treat Eleventh Amendment the entire action to state there had remanded jurisdictional because it is unclear wheth bar analyzing split among the after consider Elev Supreme Court would er concurring with the circuits on this issue and immunity to be an affirma enth Amendment unitary approach “civil action” of Frances J. (which jurisdictional bar tive defense or dismissing McKay. at Id. 733. waived) purposes can be for the nonetheless applica appeal and mandamus defendants’ Id. at 732. The of the removal statute. Flores, in court addressed the tion long recognized that the Court has juris had threshold of whether we possesses Amendment defense Eleventh court’s remand diction to review district subject jurisdiction, qualities matter both Id. at light order in of 28 U.S.C. in that it can be raised for the first time on part, provision That in relevant states Jordan, see, e.g., appeal, Edelman v. U.S. remanding “An a case to the State order 1362-63, 651, 677-78, 94 S.Ct. is not re court from which was removed (1974), personal L.Ed.2d 662 and that of appeal viewable on or otherwise....” jurisdiction, in that it can be waived 1447(d) interpreted Supreme Court has Tribe, party, Idaho v. Coeur d’Alene affected narrowly language suggests, more than its -U.S. -, -, barring appellate if the district review (1997). not di L.Ed.2d 438 The Court has grounds permitted court remands on rectly how it would treat Elev determined 1447(c). Remembered, Things Inc. v. Pet purposes for enth Amendment — rarca, , , 116 S.Ct. U.S. - Flores, 110 F.3d at the removal statute. (1995); Thermtron Prod., Hermansdorfer, 423 Inc. v. Second, in the district the absence of 584, 590-91, 46 L.Ed.2d 542 light of a guidance from this circuit and courts, among other circuit was not split grounds a case One following the two circuits unreasonable 1447(c) lack of is the district court’s under that a district court lacks that have ruled subject jurisdiction. examining After part to hear of a removed Flores, held in the district court order we the claims are barred. action when some of that case that could not entertain the we id. at 733. This court’s determination See appeal application defendants’ or mandamus juris- that the Flores district court made court had based its re- because the district findings good faith was unaffect- dictional jurisdic- on its lack of mand referred to the fact that the court also ed tion. preserving policy such as considerations A court’s assertion that it judicial plaintiffs of forum and econo- choice and even lacks my. id. 1447(c), not au explicit references to does Accordingly, we held: tomatically non- render a remand order 1447(d) decision, by § reviewing a fair The remand order was based to degree finding appeal court’s [district] otherwise.

that it lacked Therefore, hear the case. Conclusion pursuant court remand was 1447(d), Under 28 U.S.C. we lack the 1447(d) jurisdic- have no under power to review the district court’s remand tion to review the remand order. this case. we dismiss Flores, then, proposition Id. stands for appeal application Defendants’ for man- that where a district court faith damus. remands a case for lack of 1447(c), power we do not have the to re- BALDOCK, Judge, dissenting. Circuit power view the remand. We lack this even may does, employed Assuming, opinion where the district court principles concluding erroneous that re- the Eleventh Amendment is a limit on a required. mand is v. Southwestern Gravitt federal court’s Telephone Bell defense, rather than a waivable affirmative 1439, 1439-40, 52 L.Ed.2d best, assumption debatable the court cor- curiam); (per Alley, FDIC v. rectly concludes that under 28 U.S.C. (10th Cir.1987). Thus, even if Elev- 1447(d), we do to re- enth Amendment does not act as view the district remand of court’s the claims jurisdictional purposes a bar for of the re- by My the Eleventh Amendment. statute, unitary moval and even if the “civil agreement opinion with the court’s ends with approach upon action” which the Flores dis- conveniently The court conclusion. then incorrect, trict until court relied is the Tenth avoids the of whether 28 U.S.C. oppor- Circuit or the Court has an 1441(a) requires § remand of the entire case tunity to address decides these issues and portion by where a of its claims are barred otherwise, a district court’s reliance on these Amendment, by holding the Eleventh remanding theories as a basis for an entire good the district court determined in faith beyond power case is our of review. This subject jurisdiction that it lacked matter over reasoning was the basis of our dismissal of reading the entire case. Flores, appeal in and it likewise is the in district court’s order this case is untena- appeal basis of our dismissal of the in this Contrary opinion, ble. to the court’s we have case. power duty to review the dis- both employed The district court here the same trict court’s remand of the claims which are reasoning as the Flores district court con- Amendment, by not barred the Eleventh be- cluding subject jurisdic- that it lacked matter court’s remand order was cause the district Archuleta, slip op. tion over the case. See not, degree,” “to a fair based lack a. (unnumbered 4) unitary page (applying “civil required by subject jurisdiction as matter Here, Flores, theory). action” as in we find 1447(c). Long, § Flores v. jurisdictional that the district court made (10th Cir.1997). Therefore, I dis- Flores, faith. determinations As sent. its remand below bolstered decision judicial economy with references and def- A. plaintiffs’ erence to the choice of forum. See 1447(d), § 4-5). an order (unnumbered Under pages id. While these 1447(c) ground is action on a authorized considerations, themselves, are not valid Things from Remem immune review. See 1447(c), grounds for remand under see -, -, bered, Petrarca, Thermtron, Inc. 423 U.S. at 96 S.Ct. at 593- grounds the exclusive here were not under remand, Only grounds two for remand exist for the but rather were addition (1) 1447(c), subject mat namely, a lack of jurisdictional grounds. to the Because the jurisdiction “any other than degree defect remand decision was based to a fair ter i.e., subject jurisdiction,” a jurisdictional matter findings, precluded we are lack of procedural nonjurisdictional entirety. reading of the district defect.1 Be- Unlike our appeal cause for lack dismisses Long, in Flores v. court’s order subject jurisdiction, opinion matter (D.N.M.1995),appeal dismissed possible does not address other defect in (10th Cir.1997), I am bound to outset, then, Defendants’ removal. At the reading accept, no reasonable ground we are with the first concerned in this case even re- court’s remand order 1447(e) for remand under district —the motely suggests that the district court re- subject court’s lack of matter manded the case because it lacked over ease. over the action in its notes, correctly if a As entirety. “good faith” court makes determination that it lacked sub The district court ruled that it lacks ject jurisdiction only over the claims action, particular despite relying on errone- so, principles doing against agencies, the state the offi ous then the remand officials, immune under review cial-capacity claims the state Flores, 110 F.3d at 732-33. the Eleventh Amendment. The dis correctly The court that a district independent review the record the actual of jurisdiction plemental over Plaintiffs state grounds upon or basis which the district law claims the named individual state empowered court considered it was to re- ” capacities.” in Ar Mangold (quoting mand.’ Id. at 732 v. Lacuesta, CV-95-1274-MV, chuleta v. No. Inc., 1442, Analytic Serv. (D.N.M., 15, unpub. Aug. order at 3-4 filed Cir.1996)) added). (emphasis 1996) I). (reproduced Appendix as The dis reasons, erroneously, But the court then trict court nevertheless decided that 28 in because Flores we construed the dis- 1441(a) required it to remand the concluding trict court’s remand order entirety in action because the Eleventh subject it lacked matter over the portion Amendment barred a of the claims.2 entire we are to the district bound read supported The district court its decision to order in court’s remand this case the same policy remand the entire action with various way. availability appellate Not The so. of having nothing considerations to do with sub particular review a remand order is deter- of jurisdiction. ject The court matter cited order, by particular mined to that reference costs, policies avoiding the additional res entirely not an order in an case. different judicata problems, possible prejudice Flores, See 110 F.3d at 732. The district parties engendered by parallel both federal court this case never ruled it lacked sub- ject proceedings, over the action in court as well as the and state 1, 1996, Congress Except expressly provided by 1. On October amended as otherwise brought Congress, by removing Act of civil action in a language "any defect State court of which the district courts of the procedure,” replacing in removal it with original jurisdiction, may United States have "any defect other than lack of by be removed the defendant or the defen- jurisdiction.” Pub.L. No. 110 Stat. dants, the district court of the United States embracing for the district and division place pending. where such action is 1441(a) 2. Section reads: 1441(a) 1441(a), principles set forth mat protecting Plaintiffs choice of fo- policy of although that’s ter what this rum. says opined. The the district court’s language position unreasonableness of purported lack of which hints of a order even surprising, apparent, rather not but because “The reads: solely procedural are the removal statutes Defendants re- further concludes that Court Mackay Develop e.g., See nature. Uinta improvidently and without moved this case 639, 638, ment 33 S.Ct. Eleventh Amend- because the (“Removal proceedings 57 L.Ed. 1138 being precludes this civil action from ment process bring in the are nature filed in originally been one could court.”); parties before the United States Archuleta, unpub. at 6 court.” order federal 1386, Refractories, Peterson BMI added). language cannot (emphasis Such (11th Cir.1997) (“Supreme long Court has district justify this court’s conclusion requirements the technical treated was based on lack of sub- court’s remand procedural, removal statutes as not federal First, “improvi- ject jurisdiction. jurisdictional.”); Exchange Korea Bank v. jurisdiction” language dently and without (3d Corp., Trackwise Sales by from 28 was deleted Cir.1995) (“Supreme consistently [has] Improvement Access to Justice Judicial statutes as im refused treat 1016(e), 100-702, § Act of Pub.L. jurisdictional posing independent require (1988), 4642, 4670 and could not 102 Stat. 1441(a) ments.”). assuming Even upon have been relied removal, action’s authorize the Second, literally, the dis- good faith. taken court still had manifestly incorrect trict court’s statement by the over those claims not barred Eleventh faith be- cannot relied expressly Amendment. The district court containing barred cause civil actions Ar- recognized in its remand order. routinely Amendment are the Eleventh chuleta, unpub. relying Only court. those 1441(a) action, remand the entire Eleventh Amendment are dis- procedur recognized a district court at most missed, necessarily not the entire action. nonjurisdictional defect Defendants’ al or Hospital School and See Pennhurst State supra, note 1. Whether Defen removal. Halderman, this action from state court dants’ removal of (1984) (Eleventh Amend- question separate and improper is a claims, cases); Mascheroni v. ment bars apart question from the of the district court’s (10th Regents, 28 Board F.3d of subject jurisdiction. If the removal matter Cir.1994) (same). Third, only way logical subject matter were a source of statutes court’s statement is to read jurisdiction, every defect removal then reasoning as to of the district court’s context procedure amount to an unwaivable would why case. The dis- it remanded entire subject jurisdiction. But this of matter lack it the case because trict remanded 1447(c) § not the case. See 28 U.S.C. is 1441(a) § did autho- 28 U.S.C. not believed (after procedur days, object to a failure removal from state court rize action’s nonjurisdictional in removal con al or defect place, district court first not because the waiver). Thus, escapes it me how stitutes subject jurisdiction lacked believed that this court concludes action. 1441(a) § good ruled in faith 28 U.S.C. juris deprived it of somehow reliance on Flores forces This court’s blind over the entire action. diction legal to the district to ascribe a error us court never this case the district B. made-speeifieally, the that a removal error 1441(a) only § of the district logical de- construction violation of somehow purported that “the federal remand order is the district court of prived piece- does not countenance reasonably argue removal statute jurisdiction. cannot One claims, statutes, particular and that removal of meal the removal statute the federal claims. While this court has not [28 ‘civil’ action under 1441(a) whether, § refers to the entire ease a ] addressed the issue of absent Archuleta, unpub. objection, empow filed in state court.” or- timely a district court is Because, contrary der at 4. to this court’s sponte ered to remand an action sua for a clearly opinion, the district court procedural nonjurisdictional defect under or remand the action for lack of 1447(c), every circuit to have considered jurisdiction have done so in and could not the issue has held that a district court lacks faith, the court should address the issue and issued a writ mandamus presence of whether the of claims barred directing juris the district court to exercise required the Eleventh Amendment the dis- e.g., diction. See In re First Nat’l Bank of trict court to remand the entire action. Boston, 70 F.3d 1187-90 Cir. 1995), upon vacated settlement 102 F.3d 1577 issue, To resolve this the court first should (11th Cir.1996); Page City Southfield, 1441(a) proscribes ask whether removal of (6th Cir.1995); 132-33 In re portion an action where one of the action is Co., Continental Cas. jurisdiction within the (7th Cir.1994); In re Ins. Allstate court, remaining por of the district but the (5th Cir.1993). 219, 222-23 Therm See also ques tion not. If the is answer this first Products, Hermansdorfer, tron Inc. v. no, inquiry tion is our there ends because we 336, 352-53, undoubtedly appellate un (1976) (“[U]se L.Ed.2d 542 [is of mandamus der 28 U.S.C. 1291 to conclude that the proper] prevent nullification of the remov district court committed reversible error resting al statutes remand orders remanding to state court the federal claims law.”). grounds having no warrant in the state officials Quackenbush, capacities. See U.S. at Finally, questions if the answer to all three (Because -- -, at 1718-20 yes, is the court would not have court’s remand order was to review the district court’s remand of this properly put based on the liti action under The court does have court,” gants “effectively surrendering out of however, ques- to answer these of a federal suit a state tions for then can we determine whether appealable.). the remand order was final and actually appellate lacks question yes, If the answer to the first upon timely to review remand based however, the court next should ask whether objection procedural nonjurisdictional ato or 1441(a) requirements failure to meet the 1447(c). County defect under See Chicot procedural nonjurisdictional constitutes Bank, Drainage Dist. v. Baxter State 1447(c). defect under If the answer 84 L.Ed. no, second the court likewise has (Federal authority courts have “to affirm 1291 to jurisdic- determine whether or not the district court because a based pur- tion to entertain the cause and for this requirements a failure to meet the of pose apply to construe and the statute[s] 1441(a) is not an unreviewable order under act.”). they under to are asked Remembered, § Things See at -, (only at 497 C. 1447(c) § im an action under is 1447(d)). § mune from review under In need answer the questions If the answers to both the first and second second and third for its answer to questions yes, resounding the court then a are should ask the first should be no. 1441(a) 1441(a) objec- § proscribe § whether Plaintiff raised the remov- Because does not thirty days required tion within of removal as al of the federal claims the state 1447(c). no, §by capacities, If the then in their answer is individual the dis- defect, Plaintiff has waived the and the court trict court committed reversible error re- directing manding a of claims to state court. The should issue writ mandamus these inquire further. the district court to exercise over court need not 1441(a) notes, reasonably say tion read opinion circuits cannot be to the the As court’s this. question wheth this first of are divided over pi-esence of barred the the claims

er A “civil action” is no a civil action less requires of an remand Eleventh Amendment claims because contains barred the or civil to state court entire case Eleventh Amendment. Fed.R.Civ.P. Fifth claims. The and Seventh of the barred (“There shall be form action one of to be McKay Boyd the former. Circuits held ”) ‘civil known as action.’ A civil suit (5th 1084, F.2d Cir. 1086-87 Constr. action,” is federal court a “civil whether the 337, 1985); Wright, F.3d J. v. Frances originally suit is filed or removed feder (7th Cir.1994). 81(c) (“These and Ninth Sixth 340-42 al See Fed.R.Civ.P. court. Henry the v. Metro. held latter. Circuits apply rules actions removed the civil Cir.1990); (6th Dist., 338-39 Sewer United States district courts from state Hawaii, courts.”). 334-35 se originally Had Plaintiff Kru Purvis, (9th Cir.1995); see also Brewer v. undoubtedly action in district (M.D.Ga.1993), 1570-71 would have maintained (11th Cir. opinion, 44 F.3d 1008 volo federal law claims the state officials aff'd 1995). capacities origi I the latter is the better view. believe under nal and would McKay erroneously equate and Frances J. have claims dismissed the statutes, requirements of might Eleventh Amendment. Plaintiff then (or 1441(a), what call “re specifically brought her Eleventh Amendment waivable, jurisdiction”), which are with moval Pennhurst, claims in state court. original subject which is recognized application that § 1441 explained, As does not not waivable. may the Eleventh Amendment result in of prescribe separate rules of arising a common trial out of of Rather, merely provides § 1441 jurisdiction. both court. 465 incident in party for a procedural mechanism re a 121-22, 104 at U.S. at qualifying court. See move case to federal Second, fully reading consistent of Lines, Inc., Sulpicio Baris v. 1441(a) logic McKay under 1991) (distinguishing im 1543-46 Cir. civil Frances J. would bar removal proper removal from lack containing rights federal claims action both Thus, McKay jurisdiction). both and Fran cognizable under 42 U.S.C. and state sponte improperly sua what at ces J. raised cognizable under 1367.3 nonjurisdictional procedural most jurisdic- “original This because the term long plaintiffs had since waived. defect which 1441(a) tion” cannot be reason- as used wrong. simply This is ably juris- supplemental to include construed Perhaps greater McKay problem with Supplemental under diction. J., however, is the construction unmistakably original and Frances 1367 differs place Yet, cases containing these jurisdiction. civil actions 1441(a). 1441(a) “any states Section law claims are remova- both federal 1441(a). brought in Court of which action State See 28 civil ble jurisdic- original ... have dis- (permitting district courts removal of claims within the tion, may McKay jurisdiction); supplemental removed....” Both trict 1441(a) (1990), say 22-23 re- H.R.Rep. construe and Frances J. printed must U.S.C.C.A.N. a district court sup- (indicating courts’ civil action in claims within federal over a removable). Thus, jurisdiction are permitted. plemental entirety Sec- before removal 1367(a) that are so related to provides: all other claims over 3. Section original juris- in the action within such claims (b) (c) Except provided subsections and part the same case or form diction provided expressly or as statute, otherwise Federal controversy the United Article III of any civil action which Constitution. origina! jurisdiction, States the district jurisdiction courts have added). 1367(a) (emphasis supplemental 28 courts shall 1441(a) (D.N.M., 15, 1996); permit construe filed March Hill v. New the court should Mexico, CV-95-0117-M, unpub. order portions to remove those of a No. a defendant 1996); Atwa (D.N.M., filed March v. New rights civil action over which the federal Highway Transportation Dept., Mexico & original subject jur- district court has CV-95-948-JC, (D.N.M., unpub. No. order isdiction. 11, 1995); Davis, Fay Dec. No. filed CV- 1441(a) interpretation §of The court’s 95-949-JP, (D.N.M., unpub. filed Dec. order parity should in the afford closer treatment 1995). But as the Court has of removed actions actions. “[A]n admonished the district courts: other 1441(a) construed, Reasonably authorizes a properly may wise removed action be no any plain defendant remove ease which a more remanded because the district court originally tiff filed in could federal dis busy try it considers itself too than an 1441(a) trict The court should read court. properly action court in the federal pass-through provision authorizing as a re may the first instance be dismissed re origi moval of a case which could have been ferred to state courts for such reason.” nally filed in and not as Products, Thermtron 423 U.S. at provision providing rules of different at 590. Federal district courts “have a in removed cases. While duty strict to exercise the that is the removal statute does not countenance Quack by Congress.” conferred them actions, partial of civil the remand of enbush, at -, 116 S.Ct. at only clearly some of an action’s claims is absolute, duty While is not permitted. Westinghouse Corp. See Credit may orig district court decline to exercise its (10th Cir.1993); Thompson, 987 F.2d jurisdiction only excep inal Hosp. Heritage Texas Ass’n v. National Ins. tional circumstances. See id. existence (W.D.Tex. parallel of a proceeding prob and the 1992) cases). (collecting Because the Elev engenders it lems alone are insufficient to jurisdictional enth Amendment is a bar support a decision to remand claims within a claims, actions, against specific not entire question jurisdiction district court’s federal deprive does not federal court otherwise under 28 U.S.C. 1331. The district court proper jurisdiction over remainder of the largely in this case based its remand order action. “equitable practical on what it labeled Archuleta, unpub. considerations.” order D. considerations, however, provide 4. Such no Understandably, judges remanding the federal district properly basis otherwise Quacken damages. in New Mexico are not enthusiastic about removed action for See —Co., already adding U.S. -, -, more cases to their crowded bush Allstate Ins. then, 1712, 1728, surprisingly dockets. Not New Mexi (“[Fjederal judges uniformly co’s federal district ... hold courts have the principles the district court’s lack of remand cases based on abstention being sought equita due to Eleventh Amendment where the relief rights discretionary.”). some not all but a civil action ble or otherwise In this action, part bars removal of I would direct Congressionally-mandated juris therefore remand the entire action. In addi exercise its Archuleta, tion to Flores also see Jack diction over the federal claims capacities.4 son v. New Mexico Fa Central Correctional CV-93-1384-PJK, cility, unpub. I dissent. 1990). may

4. The district court remanded the state law A remand claims with district court supplemental jurisdiction the officers in their individual in its when the exer capacities though recognized supplemental jurisdiction inappropri even cise of Cohill, supplemental jurisdic Carnegie-Mellon these claims fell within its ate. See Univ. v. tion under 28 U.S.C. 1367. The district L.Ed.2d may did abuse its discretion in these The district court exercise this Svc., King claims. See Fisher Marine Inc. v. 21st discretion to remand even when federal claims Corp., Westinghouse Phoenix Credit Cir. remain in the suit.

1369 I APPENDIX Mexico, complaint New guel, State of the set DISTRICT IN STATES THE UNITED arising claims under New forth THE DISTRICT OF FOR COURT 12, 1995, On October Mexico Tort Claims. MEXICO NEW granted Plaintiffs were leave file Archuleta, Individually, Per Lorraine E. adding complaint claims under 42 amended of Marvin Representative of Estate sonal On 1983. October Defen-

Archuleta, Deceased, Next and as Parent and removing filed a notice this action to dants Archuleta, Archule Linda Marvin Friend of For The the United States District Court Archuleta, Jr., Archuleta, ta, and Peter Lora Mexico, District New based on claims Plaintiffs, Minors, arising 1983. under The Eleventh Amendment bars suits states, damages against court for Lacuesta, al., Westly et Defendants. against agencies departments, or or capacity, officials in their official unless No. 6:95-CV-1274 MV/DJS. unequivocally sovereign waives a state Aug. Filed 1996. immunity Congress expressly waives the or immunity creating sovereign a fed states’ MEMORANDUM OPINION GRANTING statutory action. Pennhurst eral cause of 31, 1995 OCTOBER PLAINTIFF’S Halderman, Hospital School and State REMAND MOTION TO 900, 907-10, 89, 100-03, 104 79 U.S. the Court THIS MATTER comes before (1984); Jordan, L.Ed.2d Edelman v. 31, 1995 Motion to on Plaintiffs October 651, 662-63, 1347, 1355-56, seeks an Plaintiff [Doc. 4]. Remand (1974); Graham, Kentucky v. L.Ed.2d 662 entirety remanding case in its 159, 169-70, 105S.Ct. 473 U.S. District, County of San the Fourth Judicial (1985). Congress did not Mexico, requiring Miguel, of New State im Eleventh Amendment rescind the states’ just pay all costs and actual Defendants to Quern munity enacting § v. Jor fees, attorneys incurred expenses, 1139, 1145, dan, of Defendants’ Octo- by Plaintiffs as result (1979). Moreover, although of the case from state ber has New Mexico waived Having parties’ read this Court. in its courts for certain actions own state suit being well advised otherwise submissions TCA, law enforcement officers premises, Court finds Plaintiffs in the has waived its Eleventh New Mexico well taken and should Motion to Remand is immunity from in federal suit Amendment granted. 41-1-4(F). §Ann. court. N.M. Stat. BACKGROUND jurisdiction to lacks This Court therefore against claims hear Plaintiffs state law against claims individu- This case concerns Police, officers, New Mexico the New Mexico State Police al New Mexico State Safety, Police, as well as the Department of Public of the New Mexico State Chief officers in their official Police Chief and Department, and the State Police New Mexico Amendment. Safety capacities under the Eleventh Department of Public New Mexico question that Plaintiffs TCA is no the result- There alleging of excessive force and use court; the to state be remanded decedent. claims must ing wrongful death of Plaintiffs’ parties disputed by whether issue initially this case sole Plaintiffs When the entire case to remand this Court should July in the District Court for only the state law claims. District, County of San Mi- the state court Fourth Judicial its discre abuse Thompson, ties. Corp. Cir.1993). the Eleventh Amend In this the state law tion in required of the state law ment capacities as well. in their individual the officials capaci in their official the state officials 1370 1441(a) (1996). argue splitting

Plaintiffs that the case be- in state court. 28 U.S.C. 94-731LH/LFG, tween federal unfairly Long, and state court would See Flores v. slip Civ. 17, 1995); improperly op. (August litigate force Plaintiffs to Atwa v. State Newof forums, multiple Highway Department, Mexico provide potentially et al. Civ. 95- con- JC/DJS, (December results, slip op. 11, 1995); 948 tradictory unnecessarily give rise to Fay et al. v. Davis et judicata, al. Civ. 95-949 issues of estoppel, res collateral JP/ (December WWD, 5, 1995); slip op. abstention, Jackson and result in the inefficient use of v. Central New Facility, Mexico Correctional judicial hand, resources. On the other De- PJK/MV/DJS, et slip al. Civ. 93-1384 op. fendants contend that remand of the entire (March 15, 1996). improper ease to state court is they because right have a fundamental to have their “fed- Second, splitting Plaintiffs’ case between rights” eral vindicated in federal court. As urge and state as Defendants below, agrees set forth do, with Plain- unnecessarily the Court to will un- tiffs. fairly litigate force Plaintiffs multiple forums, since state courts have concurrent

REMAND rights over Plaintiffs’ federal civil competent claims and are to hear suit in Defendants removed this case under 28 See, entirety. its e.g., Will v. Calvert Fire only authorizes removal Co., 655, 662-63, Ins. 437 U.S. 98 S.Ct. of civil actions that are within the (1978) (a jurisdiction of the district court. 28 U.S.C. compulsion is under no to exercise 1441(a) (1996). jurisdic Federal removal controversy may where the be statutory tion is in nature and is to be strict court): efficiently settled more in the state ly Sheets, construed. Shamrock Oil & Gas v. Brillhart v. Excess Ins. 316 62 100, 108, 85 L.Ed. 86 L.Ed. (partial re- (1941). Doubtful cases must be re rejected mand plenary where state court had solved favor of Laughlin remand. competent to hear federal Corp., Kmart Cir. rights civil provided claims and fo- 1995). rum unequivocally had A state official sued in his her individual action). all of the claims in the capacity 1983 is not cloaked with the Third, unlikely Defendants preju are to be state’s Eleventh Amendment they diced suggest by as a remand of this Melo, suit federal court. 502 U.S. Hafer entirety. defendants, case in Being 21, 30-31, it is difficult for the Court to fathom how It is therefore clear that prejudiced would by being required original jurisdiction Court has over Plaintiffs appear in a court of their own state. 1983 claims the named individual Moreover, the Court concurs with Plaintiffs capacities. their individual and find Defendants’ assertion of a “funda Accordingly, the Court sup- would also have right mental to have their [Defendants’] fed plemental jurisdiction over Plaintiffs state rights eral heard and vindicated in federal law claims the named individual state courts” is not well taken. In the absence of officials in capacities. by Defendants, a counterclaim clearly it is 1367(a) (1996). only Plaintiffs who seek vindication of federal Nevertheless, persuaded the Court is rights in this not Defendants. Further legal, equitable practical considerations more, partial just remand of this case is mandate entirety. this case likely prejudice Defendants as Plaintiffs. First, this Court concurs with other courts Defendants and Plaintiffs alike would face the District of New Mexico which have con- expense piece additional burden and cluded the federal removal statute does litigation meal multiple as well as the risk of piecemeal not countenance partic- removal of See, contradictory judgments. e.g., and/or claims, ular and that “civil action” Inc., under the Leasing, Holland v. World Omni (N.D.Ala. 1991) (remand removal statute refers to the entire case filed of en- predomi- AWARD OF AND FEES law COSTS tire case warranted where state were intertwined nated and federal claims so actively The record shows Plaintiffs proceed- as make with state claims dual appealed to Defendants not remove this ings pose risk of res impracticable and light Long, of v. Civ. 94-731 case Flores judicata problems). 19965). LH/LFG, slip op. (August Even though Defendants were aware of that rul- Fourth, right to choose their Plaintiffs’ ing, they elected to force Plaintiffs to file traditionally significant forum merits defer their Motion to Remand and to force this Long, by the v. Civ. ence Court. See Flores again Court to consider the issue. Under 17, 1995); LH/LFG, slip op. (August 94-731 circumstances, the agrees those Court with Highway De v. State New Mexico Atwa Plaintiffs that removal was unreasonable and (Decem al., op. partment, slip et Civ. 95-948 required Plaintiffs should not be to bear the 1995). part To case ber expenses resulting from the remov- costs and only abrogate this well settled would shall be al. Defendants re- needlessly in plaintiffs right, it also would quired pay just all and actual ex- costs terject defendants the risk future state fees, attorneys penses, reasonable encouraged to will invoke federal be incurred Plaintiffs as a result of the re- unfairly plaintiffs burden statutes either moval. liability. dodge capacity or to official opinion An with this accordance Fifth, should to conclude that Defendants be shall entered. permitted split case between Plaintiffs’ Vazquez Martha /s/ court overlooks fundamen- Vazquez Martha judicial economy tal disre- principles of Judge United States District that the gards Court’s mandate strictly right is to be construed. of removal

Shamrock, at 872. 313 U.S. at conclusion, the finds that re Court entirety to state

manding this case in its contradictoiy potential limit the court will America, UNITED STATES judicial results, promote the use of efficient Plaintiff-Appellant, resources, uphold principles of federal ab stention, judicata potential narrow res problems. The further concludes that KENNEDY, George Keiran improvidently case Defendants removed this Defendant-Appellee. the Elev and without because precludes this civil action enth Amendment origi being have been one which could Appeals, Court of United States nally filed in federal court. Circuit. Tenth 1447(c) (1996); Long, Civ. 94-731 Flores 17, 1995); LH/LFG, op. (August slip Atwa Dec. Highway Department, Mexico

State Newof (Decem JC/DJS, al., slip op. et Civ. 95-948 al., 11, 1995); Fay et et al. v. Davis Civ. ber (December JP/WWD, slip op.

1995); v. Central New Mexico Cor Jackson al., Facility, et Civ. 93-1384

rectional PJK/ (March 1996).

MV/DJS, op Accord slip in its

ingly, this shall be remanded case District,

entirety to the Fourth Judicial Miguel,

County of San State of New Mexico. also notes original trict court further ruled that it had court’s assertion that it lacks over the remain 1447(c), even with reference to ing federal claims under 28 U.S.C. per does not se render remand order unre- supplemental jurisdiction over the 1447(d). Rather, viewable under claims under 28 1367. The law “ ‘[Pjowerful Flores, recognized policy con- court wrote: “It therefore clear that the persuasive authority support siderations and has over Plaintiffs responsibility past our look —and —to § 1983 claims the named individual contextually ambiguous and even allusions capacities. state officers specific citations to to determine sup the Court would also have

Case Details

Case Name: Archuleta (Martinez) v. Lacuesta

Court Name: Court of Appeals for the Tenth Circuit

Date Published: Dec 3, 1997

Citation: 131 F.3d 1359

Docket Number: 96-2221

Court Abbreviation: 10th Cir.