Free Response - District Court of Arizona - Arizona

A. James Clark, #002901 CLARK & MOORE 2 256 South Second Avenue, #E Yuma, AZ 85364 3 Telephone (928) 783-6233
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Attorneys for Plaintiff Rubecca Mikkelsen, etc.

John A. Micheaels -- 05917 BEALE, MICHEAELS & SLACK, P.C. 6 1440 E. Missouri Avenue, #150 Phoenix, Arizona 85014 7 (602) 285-1444
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Attorneys for Plaintiff Dennis Mikkelsen UNITED STATES DISTRICT COURT

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DISTRICT OF ARIZONA
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RUBECCA MIKKELSEN, surviving) No. CIV 02-2252-PHX-JAT spouse of Kelly Mikkelsen, deceased,) on behalf of MILES MIKKELSEN,) JERRET MIKKELSEN and ALLISON) PLAINTIFFS MIKKELSEN'S MIKKELSEN, the minor children of) RESPONSE TO DEFENDANTS' Kelly Mikkelsen, deceased, and on) SUGGESTION CONCERNING behalf of DENNIS MIKKELSEN,) LACK OF JURISDICTION AND natural father of Kelly Mikkelsen,) MOTION TO REMAND TO STATE deceased; and on behalf of TAYLOR) COURT R. FOX, a minor, by her next friend) and natural mother, TRACY FOX-) ) TANGA, ) (Assigned to the Honorable James A. ) Plaintiffs, Teilborg) ) ) vs. ) C O R R E C T I O N A L H E A L T H) RESOURCES, INC., a foreign) corporation; KENNETH L. FAIVER) and JANE DOE FAIVER, husband and) wife; JOSEPH EDWARD RICH, M.D.) and JANE DOE RICH, husband and) wife; DOES I through V, inclusive, ) ) ) Defendants. ______________________________ ) ) ) Plaintiffs Mikkelsen hereby respond in opposition to Defendants "Correctional Health Resources' et al, Suggestion Concerning Lack Of Jurisdiction And Motion To Remand To State Court." Because the motion is actually a non-jurisdictional dispositive motion to

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dismiss Plaintiffs' civil rights claim and then remand the pendent state law tort claims, the motion is grossly untimely and should not be considered. In the event this Court considers the merits of Defendants' motion, the motion should be denied because: (1) Defendants have waived any objection that Plaintiff is not the proper party to assert a civil rights claim, since Defendants removed this matter to federal court on the basis of that claim and have never disclosed or raised such a defense for three years from the time of their Answer through the Joint Pretrial Order; (2) Plaintiff Rubecca Mikkelsen is, in fact, the Personal Representative of the Estate of Kelly Mikkelsen and has, at all material times, had standing to assert the civil rights claim; (3) any defect in pleading the civil rights claim can easily be remedied by ratification, substitution, or amendment to show Rubecca Mikkelsen's capacity as Personal Representative, per 28 U.S. C. § 1653 and/or FRCP 17(a) and/or 15(a); (4) this Court is required to permit Plaintiffs to cure any standing or capacity problem, which relates back to the filing of the original complaint; and (5) this Court has discretion to retain jurisdiction over Plaintiffs' state law claims even if the federal claim is dismissed. Defendants' motion is blatant gamesmanship. This case is on the brink of trial and Defendants' own expert has opined that Defendant CHR's three nurses were all negligent and agrees with Plaintiffs' expert regarding causation. Defendants must be painfully aware that they cannot defend this case. Accordingly, they have come up with a last-minute ploy to wipe out the whole course of this litigation by suggesting that the case they themselves removed to this Court should not have been removed. Such abusive manipulation of our judicial system should not be tolerated. Plaintiffs seek leave to file a motion for sanctions requesting an award of their fees incurred in responding to Defendants' untimely and frivolous motion pursuant to FRCP 11(c) and/or FRCP 37(c)(1). In the unlikely event that this Court grants Defendants' motion and remands this matter to state court, Plaintiffs seek an award of their fees and costs incurred in litigating this matter from the date Defendants filed their Notice of Removal in November 2002, pursuant to 28 U.S. C. § 1447(c). I. Defendants' motion does not raise a jurisdictional issue.
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Defendants carefully worded their motion to attempt to frame it as a "jurisdictional" argument, because they cannot assert any other affirmative defense at this late date. The parties could spend many hours and dozens of pages discussing and analyzing whether Defendants' argument is truly jurisdictional. Fortunately, as discussed below, it makes no difference, since Defendants' claim must fail on the merits. However, Plaintiffs will point out two reasons why this issue is not jurisdictional. One: it is a real party in interest objection under Rule 17. Two: it is a question of statutory standing, not Article III jurisdictional standing, and goes to the merits of the Section 1983 claim, rather than this Court's jurisdiction. A. Defendants have raised a real party in interest objection. Defendants' motion is an attempt to dismiss Plaintiffs' civil rights claim, because they contend it was not filed by the real party in interest -- the Personal Representative of Kelly Mikkelsen's estate. Rule 17(a) provides in relevant part: Every action shall be prosecuted in the name of the real party in interest. An executor, administrator,...or a party authorized by statute may sue in that person's own name without joining the party for whose benefit the action is brought....No action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest; and such ratification, joinder, or substitution shall have the same effect as if the action had been commenced in the name of the real party in interest. FRCP 17(a). Defendants' argument (that they have raised a jurisdictional issue) confuses the issue of standing with the doctrine of real party in interest. See, Crumpacker v. DeNaples, 968 P.2d 799, 807 (N.M. App. 1998). The distinction is often blurred by courts and lawyers. Id., citing 6A Wright, Miller & Kane, § 1542. Both concepts involve a determination of whether a plaintiff has a sufficient interest in the action to entitle him to be heard on the merits. Id. But standing turns on whether the plaintiff can show an "injury in fact" caused by the defendants' conduct. Id. (citations omitted). "The concept of real party in interest, on the other hand, entails identification of the person who possesses the particular right sought to be enforced." Id., citing Jesko v. Stauffer
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Chem. Co., 558 P.2d 55, 59 (N.M. App. 1976). "Unlike standing, objections based on real party in interest status can be waived and, thus, are not jurisdictional." Id. (citations omitted). See also, Toy v. Katz, 192 Ariz. 73, 91 P.2d 1021 (App. 1997) (defendants' "standing" objection was actually a real party in interest objection and trial court erred in refusing leave to substitute corporate real party in interest for individual plaintiff under ARCP 17(a)), citing Whelan v. Abell, 953 F.2d 663, 672 (D.C.Cir. 1992). Because no living person could ever prove that he was directly injured by the deprivation of Kelly Mikkelsen's civil rights, the question is not whether the plaintiff suffered direct and redressable injury -- the question is really whether Rubecca Mikkelsen or Kelly's surviving children and father are the proper parties ­ the real party(ies) in interest -- to bring the claim under Arizona's survival statute and/or Section 1983. That question is easily resolved under FRCP 17(a) as discussed below, and is not a jurisdictional question. Id. B. Defendants have raised an issue of statutory standing, which is not jurisdictional. Defendants' claim is simply that Plaintiff Rubecca Mikkelsen is not the proper

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party to bring a civil rights claim under Section 1983 and/or A.R.S. § 14-3110. The issue
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is whether Plaintiffs have a claim, or "statutory standing" to bring the claim, not Article
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III redressability/standing, and is not a jurisdictional question. Steele Co. v. Citizens for a
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Better Environment, 523 U.S. 83, 96, 118 S. Ct. 1003, 1013 (1998), citing National
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Railroad Passenger Corp. v. National Ass'n. of Railroad Passengers, 414 U.S. 453, 465,
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n.13, 94 S. Ct. 690 (1974). This issue should be treated no differently from a statute of
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limitation or other affirmative defense that might result in dismissal of the federal
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question claim. The fact that the claim that is the basis for federal question jurisdiction is
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later dismissed, does not render jurisdiction based on the existence of that claim a nullity
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ab initio.
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Federal question jurisdiction and the propriety of removal depend on the nature of
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the claims included in the plaintiff's complaint, not on the technical niceties of how the
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federal law claim was plead or whether the plaintiff was the proper plaintiff under the
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applicable statute allowing the claim. In determining subject matter jurisdiction, "The cause of action is the subject-matter of the controversy, and that is, for all the purposes of the suit, whatever the plaintiff declares it to be in his pleadings." Powers, supra, 169 U.S. at 97, 18 S.Ct. at 266 (emphasis added) (citations omitted). Because jurisdiction is based on the existence of a federal question, unless and until this Court dismisses Plaintiffs' civil rights claim, it does, in fact, have subject matter jurisdiction. As Defendants stated in their November 7, 2002 Notice of Removal "This action is a civil action over which this Court has original jurisdiction under 28 U.S.C. § 1331 (federal question), and is one which may be removed to this Court by Defendant pursuant to the provision of 28 U.S.C. § 1441(a) in that it arises under the Civil Rights Act of 1964. Specifically, Plaintiffs claim that Defendant has violated 42 U.S.C. § 1983 and the Eighth Amendment of the United States Constitution." (Joint Notice of Removal filed in District Court on November 7, 2002 at pp. 2-3, citing Plaintiffs' Amended Complaint.) So long as Plaintiffs have a federal civil rights claim, this Court has federal question jurisdiction. Defendants and this Court cannot pretend that the civil rights claim never existed ­ it must be dismissed in order to deprive this Court of federal question jurisdiction. Since the only issue presented is whether Plaintiff Rubecca Mikkelsen is the proper party to pursue Kelly Mikkelsen's civil rights claim, this is not a jurisdictional issue. It is more properly a question of whether Rubecca Mikkelsen is the real party in interest pursuant to FRCP 17(a). II. Defendants' motion is untimely and Defendants waived their nonjurisdictional objection to Rubecca Mikkelsen as the proper party to bring Kelly Mikkelsen's civil rights claim. The defense that plaintiff is not the real party in interest must be raised promptly or it is waived. United HealthCare Corp. v. American Trade Ins. Co., 88 F.3d 563, 569 (8th Cir. 1996). As discussed below, Defendants' motion is grossly untimely and they have waived any objection that Plaintiff Rubecca Mikkelsen is not the real party in interest. Defendants have had almost three years to assert that Plaintiffs were not the proper
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parties to assert a section 1983 claim. Yet they did not do so. Defendants were required to include all affirmative defenses in their answers. FRCP 8(c), FRCP 12(b). Defendants failed to include any defense suggesting that Plaintiffs could not pursue Kelly Mikkelsen's civil rights claim in their answers to either the First or the Second Amended Complaint. Failure to include the affirmative defense waived it. Id; Nardi v. Stewart, 354 F.3d 1134 (9th cir. 2004) (failure to plead limitation defense in answer waived it). Defendants were also required to include this defense in their disclosure statements. FRCP 26(a), (e). They failed to do so. Their failure to disclose this defense precludes their attempt to assert it in this motion or at hearing or trial. FRCP 37(C)(1). Defendants were also required to raise their new "standing" defense in the joint pretrial scheduling memorandum and order. This Court expressly required the parties to discuss "any matters relating to jurisdiction or venue or the joinder of additional parties," "the jurisdictional basis of the case, citing specific statutes," and "Whether there are further dispositive or partially dispositive issues to be decided by pretrial motions, and the legal issues about which any pretrial motions are contemplated." (1/28/2003 Order setting Rule 16 Scheduling Conference; 9/9/2005 Order Setting Final Pretrial Conference and attached form of Order.) Their failure to include this defense in the joint pretrial order also waived it. Watkins v. Peterson Enterprises, Inc., 57 F. Supp. 2d 1102, 1107 (E.D. Wash. 1999) citing Northwest Acceptance Corp. v. Lynnwood Equip., Inc., 841 F. 2d 918. 924 (9th Cir. 1988). Defendants' failure to raise any objection to Plaintiffs as the proper parties to bring Kelly Mikkelsen's civil rights claim for three years of expensive litigation should preclude their attempt to raise it now, on the eve of trial. The defense was clearly waived. Beyond this, since Defendants' motion does not raise a jurisdictional issue, it is merely an untimely dispositive motion. Trial in this case is set for November 28. The deadline for filing dispositive motions was extended several times, but was finally set for October 22, 2004 ­ almost one year ago. (This Court's July 14, 2004 Minute Entry.)
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Accordingly, Defendants' dispositive motion to dismiss is grossly untimely and should not be considered. III. Even if the issue is framed in terms of standing, Rubecca Mikkelsen has standing to pursue her husband's civil rights claim. Even if the issue is framed in terms of standing and jurisdiction, it is clear that

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Rubecca Mikkelsen does have standing to pursue Kelly Mikkelsen's civil rights claim.
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Kelly Mikkelsen cannot bring his civil rights claim himself ­ he is dead. Defendants
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contend that the civil rights claim should have been filed by Kelly Mikkelsen's Personal
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Representative according to A.R.S. 14-3110. Obviously the Personal Representative
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could not have been directly and personally injured by violation of Kelly Mikkelsen's
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Constitutional rights. Yet Defendants acknowledge that the Personal Representative has
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standing to assert Kelly Mikkelsen's civil rights claim.1 Because Rubecca Mikkelsen is, in fact, the Personal Representative of her

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husband's estate (and was at the time Defendants removed this case to federal court), she
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clearly has standing to pursue the claim ­ she and no one else, is the Personal
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Representative entitled to pursue such survival claims. (May 16, 2002 Informal
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Appointment of Personal Representative and Informal Probate of Will, Ex. A.)
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As set forth in FRCP 17(a), "An executor, administrator,...or a party authorized
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by statute may sue in that person's own name without joining the party for whose benefit
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the action is brought...." It is well established that a personal representative authorized
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by statute to sue is the real party in interest, and may sue in his or her own name under
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rule 17. Bush v. Carpenter Brother, Inc., 447 F.2d 707, 710-11 (5th Cir. 1971); Idaho
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Potato Commission v. Washington Potato Commission, 410 F. Supp. 171, 174 (D. Idaho
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1975). Accordingly, Rubecca Mikkelsen was and is clearly entitled to bring Kelly
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Mikkelsen's civil rights claim in her own name without naming the estate of Kelly
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Mikkelsen as the plaintiff. Because Rubecca Mikkelsen clearly has standing and is the
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proper party plaintiff, Defendants' motion should be dismissed.
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This highlights the fact that the real issue is not standing, but the proper party plaintiff under the Civil Rights Act and Arizona's survival statute.

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IV. Plaintiffs' civil rights claim is not defective and, if necessary, any defect in describing Rubecca Mikkelsen's capacity can easily be cured by ratification, substitution, or amendment, which must be permitted. As set forth above, Plaintiff Rubecca Mikkelsen is, in fact, the duly-appointed Personal Representative of her husband's estate, and has been since May 16, 2002, before Defendants removed this case. (Informal Appointment of Personal Representative Ex. A.) Accordingly, the only arguable defect is the technical failure to expressly state that Rubecca is suing, not only on behalf of Kelly Mikkelsen's surviving father and children, but also in her capacity as the Personal Representative of his estate. Because Rule 17(a) permits a person authorized by statute to proceed in her own name without joining the beneficiaries, Plaintiff believes that amendment is unnecessary. Moreover, Rule 17(a) allows any defect to be cured by "ratification." Plaintiffs Rubecca Mikkelsen hereby represents, in her capacity as Personal Representative, that she ratifies the filing of all pleadings and other actions in this matter and will file whatever documentation may be requested to formalize such ratification. But, if this Court deems it appropriate, Plaintiffs are happy to change the style of the caption or content of the complaint to reflect that Rubecca Mikkelsen is also suing in her capacity as Personal Representative. In that event, Plaintiff hereby offers to file the Third Amended Complaint attached as Ex. B. This change in capacity is easily remedied by simple amendment relating back to the filing of the original complaint, and changes nothing in terms of the substance of the civil rights claim. 28 U.S.C. § 1653; FRCP 15(a), (c); FRCP 17(a). Amendment is permitted under Rule 15, Rule 17, § 1653, or all three, and amendment relates back under all rules. As set forth in Section 1653: "Defective allegations of jurisdiction may be amended, upon terms, in trial or appellate courts." Amendment should be permitted (even on appeal) to correct a jurisdictional pleading deficiency unless is it clear that the complaint cannot be saved by amendment. Id.; Snell v. Cleveland, Inc., 316 F.3d 822 (9th. Cir. 2002). "If the complaint's allegations are insufficient to confer standing, `often a plaintiff will be able to amend its complaint to cure standing deficiencies.'" Byrd v. Guess, 137
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F.3d 1126, 1131 (9th Cir. 1998), quoting United Union of Roofers v. Ins. Corp. of America, 919 F.2d 1398, 1402 (9th Cir. 1990) (denial of amendment to cure standing deficiency proper only where amendment would be clearly frivolous, unduly prejudicial, cause undue delay, or a finding of bad faith is made). Where, as here, a plaintiff has standing to sue in a representative capacity, but failed to allege that in the initial complaint, amendment is proper and cures the defect. See, Id. In Byrd, the plaintiff survivors filed section 1983 claims based on the death of their husband/son, who was shot by police officers. The Byrd plaintiffs failed to allege their representative capacity in their complaint "and failed to introduce any evidence that they were in fact the successors in interest of Sylvan Byrd under California law." Under "these circumstances" the trial court did not abuse its discretion when it denied the Byrd's motion to modify the pretrial order to include a statement indicating they were suing in their representative capacity. 137 F.2d at 1132. The obvious negative implication is that, if the Byrds had presented evidence of their representative capacity, they would have been allowed to amend and pursue their claim in a representative capacity. See also, Schmier v. U. S. Ct. of Appeals for the Ninth Cir., 279 F.3d 817, 824 (9th Cir. 2002) (holding that the complaint was properly dismissed without leave to amend, because amendment would have been futile, otherwise, it would have been improper to dismiss without leave to amend); Polich v. Burlington Northern, Inc., 942 F.2d 1467 (9th Cir. 1991) (dismissal without leave to amend is improper unless it is clear that the complaint could not be saved by any amendment). The ability to correct any defect in pleading Rubecca Mikkelsen's capacity was implicitly recognized in the Moreland case cited by Defendants for the proposition that Plaintiffs' civil rights claim must be dismissed for lack of standing. 159 F.3d 365 (9th Cir. 1998). In Moreland surviving plaintiffs failed to include an allegation that they brought their civil rights claims in a representative capacity and "at no time in the action before the district court did [the plaintiffs] argue or offer any evidence they had been formally appointed as representatives of Douglas's estate." It was only "given this
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record" that the appellate court found that the district court properly dismissed the civil rights claim without leave to amend. This makes perfect sense, since amendment to change the capacity and cure the defect would be futile where a plaintiff is not, in fact, the personal representative of the deceased's estate. But where, as here, the plaintiff is the personal representative and any defect in standing can be corrected by a change in capacity, the court can and should permit amendment/substitution. Byrd v. Guess, supra; United Union of Roofers, supra, 919 F.2d at 1402. Leave to amend to change the capacity of the plaintiff is routinely granted in similar situations. E.g., Goodman v. U.S.A., 298 F.3d 1048 (9th Cir. 2002) (amendment to substitute husband individually for husband in capacity as personal representative of his wife's estate was proper per Rules 15 and 17); Abiola v. Abubakar, LEXIS 14872 (N.D. Ill. 2003) (individual plaintiff should be given reasonable time to show he is personal representative under Rule 17(a)); Fierstein v. Piper Aircraft Corp., 79 F. Supp. 217 (D. Pa. 1948) (permitting plaintiff to amend to refer to herself as executrix, rather than individual plaintiff, notwithstanding statute of limitation had run); Downs v. U.S.A., 382 F. Supp. 713, 732 (M.D. Tenn. 1974), reversed on other grounds, 522 F.2d 990 (6th Cir. 1975) (amendment to change description of party to comply with statutory requirement should be permitted); Schieszler v. Ferrum College, 236 F. Supp. 2d 602 (W.D. Va. 2002) (permitting amendment to allow plaintiff to assert her capacity as administratrix of decedent's estate); Watts v. State of Arizona, 115 Ariz. 545, 566 P.2d 693 (App. 1977) (amendment to add personal representative after limitation period should have been permitted and related back to filing of original complaint); Duckett v. District of Columbia, 654 A.2d 1288, 1290, 1291 (D.C. App. 1995) (trial court should have permitted plaintiff opportunity to substitute herself as personal representative as real party in interest under Rule 17(a)); Lovato v. Austin Nursing Center, Inc., 113 S.W.3d 45, 55 (Tex. App. 2003) (plaintiff that became personal representative and amended complaint after the limitation period, had cured the standing defect and survival claims should not have been dismissed).
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In a strikingly similar case, the Texas Court of Appeals concluded that the failure to plead a representative capacity in a civil rights claim is a defect that plaintiff must be permitted to cure. The County of Dallas v. Sempe, 151 S.W.3d 291 (Tex. App. 2004). The plaintiffs in Sempe were the surviving children of a man killed when he was placed in an overcrowded county jail cell. They sued for violation of their father's federal Constitutional rights under Section 1983. The defense argued exactly what Defendants have argued here: "the County asserts the trial court erred in denying its plea to the jurisdiction because the Sempes lack standing to bring the survival action. The County contends the trial court never acquired jurisdiction over the Sempes' survival action because the Sempes failed to show that they were entitled to recover in the capacity in which they sued." 151 S.W.2d at 295. The Sempe court rejected the argument because "When a plaintiff fails to plead facts that establish jurisdiction, but the petition does not affirmatively demonstrate incurable defects in jurisdiction, the issue is one of pleading sufficiency, and the trial court should not grant a plea to the jurisdiction until the plaintiff has an opportunity to amend." 151 S.W.3d at 294 (citation omitted). The Sempe court found that the plaintiffs' affidavits showing capacity to sue related back to the filing of the original complaint, and that the trial court had properly rejected the defendant's objection to jurisdiction, even without a formal amendment to the complaint. Since the plaintiffs actually had standing at the time they filed their complaint, it did not matter that the proof of standing was filed later. 151 S.W. 3d at 298-99. Any defect in the pleading in this case can be corrected either by changing the caption to include Rubecca Mikkelsen's status as Personal Representative, or alleging such status in the pleading and indicating that Rubecca is bringing the Section 1983 claim in her capacity as Personal Representative. Any such amendment must relate back to the filing of the original complaint, and cures any defect in the pleadings regarding standing and jurisdiction. E.g., Missouri, Kansas & Texas Railway Co. v. Wulf, 226 U.S. 570, 573, 33 S.Ct. 135 (1912) (amendment to change capacity in which plaintiff is suing should be allowed at any time); Shinkle v. Union City Body Co., 94 F.R.D. 631 (D. Ct.
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KS. 1982) (permitting amendment to name plaintiff as the administrator of the decedent's estate in order to pursue a survival claim in federal district court); Barrett v. U.S.A., 622 F. Supp. 574 (S.D. N.Y. 1985) (amendment to indicate plaintiff was pursuing Section 1983 claim in capacity of estate representative related back). The Shinkle court concluded: We agree with those courts that permit a plaintiff to change the capacity in which an action is brought when there is no change in the parties before the court and all parties are on notice of the facts out of which the claim arose. In such a case we believe that the amended complaint should be permitted to relate back to the date of the filing of the original complaint. 94 F.R.D. at 638, citing Russell v. New Amsterdam Cas. Co., 303 F.2d 674 (8th Cir. 1962); Hunt v. Penn. Central Transp. Co., 414 F.Supp. 1157 (W.D.Pa. 1976); Fierstein v. Piper Aircraft Corp., 79 F. Supp 217 (M.D. Pa. 1948); Owen v. Paramount Productions, 41 F. Supp. 557 (S.D.Cal. 1941); 3 Moore's Federal Practice 2d Ed., § 15.15 (4.-1) at 15-212. In sum, it cannot be disputed that Plaintiff Rubecca Mikkelsen was and is the Personal Representative of Kelly Mikkelsen's estate with standing to pursue his civil rights claim under Section 1983. Mrs. Mikkelsen had standing at the time Defendants removed this case to federal court. If this Court reaches the merits of Defendant's untimely dispositive motion, and if this Court believes that the complaint should be amended to reflect Rubecca Mikkelsen's representative capacity, Plaintiffs seek leave to do so. But any defect is clearly curable, and the authorities cited above all require that this Court permit Plaintiff to cure any defect, so that dismissal of the section 1983 claim and remand of the state law claims would be inappropriate and impermissible. V. Defendants' assertion that amendment is not possible is simply incorrect, even if this Court believes that Defendants have raised a jurisdictional "standing" issue. As set forth in some detail above, the cases on point not only permit, but require, amendment to cure any defect in capacity/standing/jurisdiction such as that alleged by Defendants. Defendants cited four cases in support of their argument that this Court cannot permit amendment. Not one of those cases applies or prevents amendment in this
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case. Powers v. Chesapeake and Ohio Railway Co., held that a defendant could remove a case to federal court promptly after the dismissal of the non-diverse defendant in state court. 169 U.S. 92, 100, 18 S.Ct. 264, 267 (1898). Amendment of a complaint to cure a defect in standing or jurisdiction was not an issue and was not addressed in Powers. The other ancient Supreme Court case cited by Defendants, Jackson v. Allen, is a three paragraph opinion. 132 U.S. 27, 10 S. Ct. 9 (1889). The prior history of the case indicates that a Louisiana resident sued another Louisiana resident, then a resident of New York intervened and brought in a citizen of Great Britain. The New York and Great Britain parties removed the case to federal court on the basis of alleged complete diversity of citizenship. The Court held that there was no diversity jurisdiction, because the evidence did not show complete diversity and the case was reversed with orders to remand to state court. The entire discussion reads: "It appears from the record that the citizenship of the parties at the commencement of the actions, as well as at the time the petitions for removal were filed, was not sufficiently shown, and that therefore the jurisdiction of the state court was never divested. Stevens v. Nichols, 130 U.S. 230. This being so, the defect cannot be cured by amendment. Crehore v. Ohio and Mississipi Railroad Co., 131 U.S. 240." 132 U.S. 27, 10 S.Ct. at 13. It is not clear whether the Court was referring to amendment of the petition for removal or the original complaint, but it appears that amendment would have been futile, since two of the parties were Louisiana residents. Accordingly, nothing in Jackson supports Defendants' position in this case. The third case cited by Defendants is equally unhelpful. Libhart v. Santa Monica Dairy Co., 592 F.2d 1062 (9th cir. 1979). The Libhart defendants removed the case to federal court, even though there was no diversity of citizenship and despite the fact that there was no federal law claim in the plaintiff's complaint. The plaintiff later amended to add a new claim that did present a federal question. The federal district court granted summary judgment on the federal law claim and remanded the other claims to state court.
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The Ninth Circuit found that the court had jurisdiction only to remand to state court and improperly entered judgment on the federal question claim. In Libhart, removal was improper and the federal court had no jurisdiction to permit amendment or enter judgment on the federal law claim, because "the removable claim was not filed in the state court." 592 F.2d at 1065. Libhart does not address a situation where a federal question claim was filed in state court, the case was removed by defendants, and, three years later, just before trial, the defendants claim that removal was improper because the complaint did not allege that the plaintiff was pursuing the federal law claim in a representative capacity. If there had been no civil rights claim in this case at the time defendants removed, Libhart might be helpful precedent, but that did not happen. The fourth and final case cited by Defendants simply cited Libhart in dicta. Abada v. Charles Schwab & Co., Inc., 300 F.3d 1112 (9th Cir. 2002). In Abada, as in Libhart, there was no federal question claim in the complaint when defendants removed the case to federal court. Accordingly, there was no federal jurisdiction and it did not matter that plaintiff later amended to add a claim under federal law. In the course of determining that the Ninth Circuit had no jurisdiction to review an order remanding the case, the Ninth Circuit noted (in dicta) that removal jurisdiction is based upon the complaint as it existed at the time of removal and cited Libhart. All of the foregoing cases are consistent with the law cited by Plaintiffs. This Court has jurisdiction based upon the federal question presented by Plaintiffs' civil rights claim, which was included in the complaint at the time defendants removed to this Court. It cannot be disputed that Rubecca Mikkelsen, in fact, had standing to pursue Kelly Mikkelsen's civil rights claim, because she was and is his Personal Representative. If there is any defect in the failure to specifically indicate that Plaintiff Rubecca Mikkelsen is pursuing a Section 1983 claim as the Personal Representative of Kelly Mikkelsen's estate, that can easily be rectified by ratification, substitution, or amendment, which relates back to the filing of the original complaint. VI. This Court could retain jurisdiction even if it dismissed Plaintiffs' civil rights claim.
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Since this Court had and has jurisdiction over Plaintiffs' civil rights claim, the
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Court may retain supplemental or pendent jurisdiction over Plaintiffs' state law claims,
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even in the unlikely event that this Court dismisses Plaintiffs' federal claim. Once the
4

only federal claim is dismissed, a district court has discretion to retain the pendent state
5

law claims. Albingia Versicherungs A.G. v. Schenker International, Inc., 344 F.3d 931
6

(9th Cir. 2003); Harper v. Auto Alliance International, Inc., 392 F.3d 195, 210-12 (6th
7

Cir. 2004) (retention was proper where case had been in federal court for two years and
8

remand could have wasted judicial resources and resulted in additional delay). The
9

Plaintiff in Harper, like Defendants here, was attempting to manipulate the system:
10

"Only after discovery had been completed, the dispositive motion deadline had passed,
11

and Harper was faced with dismissal of all of his claims on summary judgment, did he
12

again seek remand to the state court. We agree with the district court that `such timing
13

appears suspicious and raises questions about Plaintiff's motives in seeking remand.'
14

Accordingly, we hold that the district court did not abuse its discretion in retaining
15

supplemental jurisdiction over Harper's state law claims." 392 F.3d at 212.
16

Here, it is apparent that Defendants are attempting to obtain a "do-over" after three
17

years of protracted litigation during which they failed to obtain expert testimony to
18

defend their case in this Court. Plaintiffs are confident that this Court will decline to
19

dismiss Plaintiffs' Section 1983 claim, but in the unlikely event that occurs, Plaintiffs
20

urge this Court to retain jurisdiction of Plaintiffs' remaining state law claims and proceed
21

to trial next month.
22

VI.
23 24

Request for fees if remanded. Plaintiffs have spent three years and thousands of dollars in fees and costs in

preparing their case for trial. Pursuant to 28 U.S.C. § 1447(c), this Court, has discretion
25

to award fees and costs incurred as a result of Defendants' improper removal. Moore v.
26

Permanente Med. Group, Inc., 982 F.2d 443, 446 (9th cir. 1992). In the event that
27

Defendants' motion is granted, Plaintiffs seek an award of all fees and costs incurred as a
28

result of defendants' improper removal on November 9, 2002 and their untimely request
Case 2:02-cv-02252-JAT Document 241 15 Filed 10/14/2005 Page 15 of 17

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for remand, and will file any and all documentation necessary to support such an award, since space limitations do not permit briefing here. VII. Request for fees incurred in responding to this motion. Defendants removed this action to federal court in November 2002. Now, almost three years later, after extensive discovery, motion practice and trial preparation, after the deadlines for discovery and dispositive motions have passed, after this Court has ruled that Defendants' cannot change their expert's testimony to provide a defense, and on the eve of trial, Defendants ask this Court to remand the case that they removed. Defendants know, or certainly should know, that their dispositive motion is untimely, that they have waived the real party in interest defense, that Rubecca Mikkelsen has, and did have, standing to pursue Kelly Mikkelsen's civil rights claim, and that any defect can easily be cured. Defendants' frantic last-minute motion was frivolous, the basis for their objection was never disclosed, and their motion is a blatant and improper attempt to manipulate the forum and the posture of this case. The motion was filed for the improper purpose of delaying the trial in this matter, obtaining relief from this Court's rulings, and increasing the costs of litigation. Plaintiffs seek an award of their substantial fees and costs incurred in preparing a response to Defendants' motion, pursuant to F.R.C.P. rules 11(c) and/or 37(c)(1). In the event this Court denies Defendants' motion, Plaintiffs request leave to file a motion for appropriate sanctions. DATED this 14th day of October, 2005.

BEALE, MICHEAELS & SLACK, P.C. /s/ John A. Micheaels John A. Micheaels 1440 East Missouri Avenue, #150 Phoenix, Arizona 85013 Attorneys for Plaintiff Dennis Mikkelsen CLARK & MOORE By /s/ John A. Micheaels (with authorization) A. James Clark 256 South Second Avenue, Suite E
16 Filed 10/14/2005 Page 16 of 17

By

28

Case 2:02-cv-02252-JAT

Document 241

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23

Yuma, Arizona 85364 Attorneys for Plaintiffs Rubecca Mikkelsen, Miles Mikkelsen, Jerret Mikkelsen and Allison Mikkelsen Original/Copy of the foregoing mailed/ delivered this 14th day of October, 2005, to: Clerk of the U.S. District Court 401 West Washington Street Phoenix, Arizona 85003 Honorable James A. Teilborg U. S. District Court 401 West Washington Street Phoenix, Arizona 85003 A. James Clark, Esq. CLARK & MOORE 256 South Second Avenue, Suite E Yuma, Arizona 85364 Attorneys for Plaintiffs Rebecca Mikkelsen, et al, . James W. Barnhouse, Esq. RENAUD, COOK, DRURY & MESAROS, P.A. One North Central Avenue, #900 Phoenix, Arizona 85004 Attorneys for Defendants Correctional Health Resources, Inc., Faiver and Rich Michael J. Aboud Esq. ABOUD & ABOUD 100 North Stone Avenue, #303 Tucson, Arizona 85701 Co-Counsel for Plaintiff Fox Mary K. Boyte, Esq. BOYTE & MINORE, P.C. 150 W. Second Street Yuma, Arizona 85364 Co-Counsel for Plaintiff Fox

By
24 25 26 27 28

/s/ Sue Ketz

Case 2:02-cv-02252-JAT

Document 241

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