Free Motion to Remand to State Court - District Court of Arizona - Arizona

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William W. Drury, Jr., #005238 James W. Barnhouse, #013749 RENAUD COOK DRURY MESAROS, P.A. One North Central, Suite 900 Phoenix, Arizona 85004-4418 (602) 307-9900 [email protected] [email protected] Attorneys for Defendants Correctional Health Resources, Inc., Kenneth Faiver, Rosemary Faiver, and Joseph E. Rich, M.D. Paul G. Ulrich, No. 001838 Melinda K. Cekander, No. 012085 PAUL G. ULRICH, P.C. 131 E. El Caminito Drive Phoenix, Arizona 85020-3503 (602) 248-9465 [email protected] Co-Counsel for Defendants Correctional Health Resources, Inc., Kenneth Faiver, Rosemary Faiver, and Joseph E. Rich, M.D. UNITED STATES DISTRICT COURT

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RUBECCA MIKKELSEN, surviving spouse of Kelly Mikkelsen, deceased, individually and on behalf of MILES MIKKELSEN, JERRET MIKKELSEN and ALLISON MIKKELSEN, the minor children of Kelly Mikkelsen, deceased, and on behalf of DENNIS MIKKELSEN, natural father of Kelly Mikkelsen, deceased; and on behalf of TAYLOR R. FOX, a minor, by her next friend and natural mother, TRACY FOXTANGA, Plaintiff,

No. CIV 02-2252-PHX-JAT

CORRECTIONAL HEALTH RESOURCES ', ET AL, SUGGESTION CONCERNING LACK OF JURISDICTION AND M OTION TO REMAND TO STATE COURT

(Request for Oral Argument) CORRECTIONAL HEALTH 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 wife; DOES I through V, inclusive, Defendants. Defendants Correctional Health Resources, Inc., Kenneth L. Faiver, Rosemary Faiver, and Joseph Edward Rich, M.D. (collectively "CHR") respectfully suggest pursuant to Fed. R.
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RENAUD COOK DRURY MESAROS
ONE NORTH CENTRAL SUITE 900 PHOENIX, AZ 85004 TELEPHONE 602-307-9900 FACSIMILE 602-307-5853

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Civ. P. 12(h)(3) that this Court may lack subject matter jurisdiction over this matter. If so, this Court must remand this case to state court pursuant to 28 U.S.C. § 1447(c). This suggestion and motion are supported by the following Memorandum of Points and Authorities and this Court's entire file in this matter, particularly Plaintiffs' First Amended Complaint, which are incorporated herein by this reference. MEMORANDUM OF POINTS AND AUTHORITIES BACKGROUND Rubecca Mikkelsen brought this lawsuit as surviving spouse of decedent Kelly Mikkelsen and on behalf of the decedent's children and father. Count Four of her First Amended Complaint purports to state a claim for violation of civil rights: At all material times, Defendants, under color of State law, regulation, custom, policy, or usage, deprived decedent Kelly Mikkelsen of his civil rights and immunities guaranteed by the United States Constitution, including the right to be free from the infliction of cruel and unusual punishment. Acting with deliberate indifference, Defendants denied required and necessary medical care and treatment to Kelly Mikkelsen, thereby subjecting him to excruciating pain and to his ultimate death. Plaintiffs are, therefore, entitled to the recovery of actual, consequential and punitive damages from Defendants as well as attorney's fees, as a result of Defendants' violation of 42 U.S.C. § 1983 and the Eighth Amendment to the United States Constitution. (First Amended Complaint, ¶ XI). These are the only allegations made with respect to this claim. ARGUMENT I. A MOTION SUGGESTING A LACK OF JURISDICTION MAY BE MADE AT ANY TIME. Fed.R.Civ.P. 12(h)3) provides:

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Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action. The Ninth Circuit has applied the express language of this rule, holding that a Rule 12(h)(3) motion may be raised at any time. See Elvig v. Calvin Presbyterian Church, 375 F.3d 951, 955 n.2 (9th Cir. 2004) ("`The matter of subject matter jurisdiction, however, may be raised by the parties at any time pursuant to Fed.R.Civ.P. 12(h)(3), and the [Defendants'] motion was

RENAUD COOK DRURY MESAROS
ONE NORTH CENTRAL SUITE 900 PHOENIX, AZ 85004 TELEPHONE 602-307-9900 FACSIMILE 602-307-5853

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thus properly before the [district] court as a Rule 12(h)(3) suggestion of lack of subject matter jurisdiction.'") (brackets in original). In fact, even if the parties do not raise a jurisdictional question, this Court "would be required to examined it sua sponte." Peña v. Downey Savings and Loan, Association, 929

F.Supp. 1308, 1311-1312 (C.D.Cal. 1996), citing FW/PBSA, Inc. v. City of Dallas, 493 U.S. 215, 229 (1990) (stating that "federal courts are under an obligation to examine their own jurisdiction") and Washington Local Lodge No. 104 v. International Brotherhood of Boilermakers, 621 F.2d 1032, 1033 (9th Cir. 1980 (stating that "[w]hen jurisdiction may not exist . . . the court must raise the issue even if the parties are willing to stipulate to federal jurisdiction"). Peña continued to explain that "[i]f at any time prior to judgment it appears that the district court lacks subject matter jurisdiction, the case must be remanded." 920 F.Supp. at 1312, citing 28 U.S.C. § 1447(c). II. 42 U.S.C. § 1983 DOES NOT CREATE ANY SUBSTANTIVE RIGHTS. As a preliminary matter, it is important to understand what § 1983 does and does not do. This understanding provides the foundation for the arguments raised in this motion. Plaintiffs contend CHR "violated" § 1983. (First Amended Complaint ¶ XI). However, § 1983 does not create any substantive rights. It therefore cannot be "violated." See, e.g., Cholla Ready Mix, Inc. v. Civish, 382 F.3d 969, 977 (9t h Cir. 2004) ("`[O]ne cannot go into court and claim a `violation of § 1983' ­ for § 1983 by itself does not protect anyone against anything.'"). Section 1983 only creates a cause of action for the vindication of federal constitutional or statutory rights. Civish, supra. governmental officials." "[I]t is the vehicle whereby plaintiffs can challenge actions by

Id. Thus, to state a claim for relief pursuant to § 1983, the plaintiff must

first state a viable claim that the defendant violated his/her federal rights. Id. Here, Plaintiffs have alleged the violation of Kelly Mikkelsen's Eighth Amendment right to be free from cruel and unusual punishment. (First Amended Complaint ¶ XI). Accordingly, the Court must examine whether these Plaintiffs have Article III standing to assert this claim.

RENAUD COOK DRURY MESAROS
ONE NORTH CENTRAL SUITE 900 PHOENIX, AZ 85004 TELEPHONE 602-307-9900 FACSIMILE 602-307-5853

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III.

THIS COURT LACKS ARTICLE III JURISDICTION. A. Constitutional Rights Are Personal And May Be Asserted Only By The Person Whose Rights Were Violated. See Whitmore v.

Kelly Mikkelsen's Eighth Amendment rights were personal to him.

Arkansas, 945 U.S. 149, 160 (1990) (only person himself subject to the death penalty has standing to assert an Eighth Amendment objection under the Cruel and Unusual Punishment Clause to its imposition); see also Moreland v. Las Vegas Metropolitan Police Department, 159 F.3d 365 (9th Cir. 1998) (decedent's Fourth and Fourteenth Amendment rights were personal to him and could not be asserted vicariously by his spouse, children or father). Moreland arose out of the accidental shooting of a bystander during a police shoot-out with a suspect shooting at the police. The decedent's surviving wife asserted claims for violation of his [the decedent's] Fourth and Fourteenth Amendment rights. Moreland held the survivors

could not assert the decedent's Fourth or Fourteenth Amendment rights because those rights were personal to the decedent and could not be vicariously asserted. 159 F.3d at 369-71. Because

Eighth Amendment rights are personal, they too cannot be asserted by a wife, child or parent. Here, only Kelly Mikkelsen had Eighth Amendment rights. None of the named Plaintiffs was incarcerated. Accordingly, they had no Eighth Amendment rights. Cf. Moreland, 159 F.3d at 370-71 (plaintiffs did not identify any of their constitutional rights violated by certain of defendants' conduct and thus had no claim in their own right). Given the lack of any such Eighth Amendment rights here, those rights could not have been violated. B. Survival Of A § 1983 Cause Of Action Is Governed By State Law. Under Arizona Law, Kelly Mikkelsen's § 1983 Cause Of Action Survived.

Plaintiffs cannot establish CHR violated their Eighth Amendment rights because they had no such rights here. Instead, they are seeking to assert a claim for alleged violation of Kelly Mikkelsen's Eighth Amendment rights. Kelly Mikkelsen is dead. Accordingly, the first inquiry

is whether or not his § 1983 claim survived his death.

RENAUD COOK DRURY MESAROS
ONE NORTH CENTRAL SUITE 900 PHOENIX, AZ 85004 TELEPHONE 602-307-9900 FACSIMILE 602-307-5853

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Where, as here, § 1983 does not contain provisions governing such issues as survival of causes of action, proper party plaintiffs or statutes of limitation, federal courts borrow the state law of the forum state to fill in those blanks. See Robertson v. Wegmann, 436 U.S. 584, 594 (1978); Civish, 382 F.3d at 974 (borrowing state personal injury statute of limitations); Moreland, supra (borrowing state survival statute to determine whether § 1983 cause of action survived and, if so, who must bring the action). Arizona's survival statute, A.R.S. § 14-3110, provides: Every cause of action, except a cause of action for damages for breach of promise to marry, seduction, libel, slander, separate maintenance, alimony, loss of consortium or invasion of the right of privacy, shall survive the death of the person entitled thereto or liable therefor, and may be asserted by or against the personal representative of such person, provided that upon the death of the person injured, damages for pain and suffering of such injured person shall not be allowed. This statute establishes that Kelly Mikkelsen's § 1983 cause of action, if any, for violation of his

12 Eighth Amendment rights survived his death. 13 of Kelly Mikkelsen can state a claim, factually or as a matter of law, on which relief can be 14 granted. 15 16 17 This Court must first determine if it has jurisdiction because "[w]ithout jurisdiction the 18 court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it 19 ceases to exist, the only function remaining to the court is that of announcing the fact and 20 dismissing the cause." Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 94 (1998). 21 "Article III, § 2, of the Constitution extends the `judicial Power' of the United States only to 22 `Cases' and "Controversies.'" 523 U.S. at 102. 23 understanding of what it takes to make a justiciable case." Id. In order to have standing to sue, 24 the plaintiff must allege and ultimately prove an "`injury in fact' ­ a harm suffered by the plaintiff 25 that is `concrete' and `actual or imminent.'" 523 U.S. at 103; see also Valley Forge Christian 26
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However, this is not an admission that the Estate

C.

Plaintiffs Lack Standing To Assert Kelly Mikkelsen's § 1983 Cause Of Action. Accordingly, This Court Lacks Jurisdiction.

"Standing to sue is part of the common

RENAUD COOK DRURY MESAROS
ONE NORTH CENTRAL SUITE 900 PHOENIX, AZ 85004 TELEPHONE 602-307-9900 FACSIMILE 602-307-5853

College v. Americans United for Separation of Church & State, 454 U.S. 464, 472 (1982) (To
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have standing under Article III of the United States Constitution, a plaintiff must "show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant."). The party invoking federal jurisdiction bears the burden of pleading and establishing it. Steel Co., 523 U.S. at 103. As established above, Plaintiffs do not allege a violation of their Eighth Amendment constitutional rights. They have no such rights. They instead allege violation of Kelly Mikkelsen's constitutional rights ­ a claim which is personal to him and may not be asserted vicariously by another. Thus, they lack standing to assert his claim. Moreland, 159 F.3d at 369-70 (affirming summary judgment in favor of defendants on the claims personal to the decedent, holding plaintiffs lacked standing to sue). As established above, Kelly Mikkelsen's claim survived his death. Also, as established

above, federal courts rely upon state law in determining who is authorized to assert a § 1983 claim on behalf of a deceased person. Arizona law authorizes such actions to be brought only by the personal representative of the estate of the deceased person. A.R.S. § 14-3110. Here, no Plaintiff has alleged he or she has been appointed personal representative of the estate of Kelly Mikkelsen. capacity. Plaintiffs do not allege they are asserting his claim in a representative

To the contrary, Plaintiffs assert their claim on their own behalf ­ asserting they are

entitled to damages as a result of the alleged violation of Kelly Mikkelsen's constitutional rights. Under such circumstances, Plaintiffs lack standing to assert this claim and the Court lacks subject matter jurisdiction. Moreland, supra1; Steel Co., supra. IV. BECAUSE THIS COURT LACKS SUBJECT-MATTER JURISDICTION, THIS CASE MUST BE REMANDED TO STATE COURT. 28 U.S.C. § 1447(c) provides, in pertinent part:

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RENAUD COOK DRURY MESAROS
ONE NORTH CENTRAL SUITE 900 PHOENIX, AZ 85004 TELEPHONE 602-307-9900 FACSIMILE 602-307-5853

This fact did not deprive the court of jurisdiction there because the wife and children had asserted Fourteenth Amendment claims on their own behalf. 159 F.3d at 371. Here, Plaintiffs have not made such a claim. It does not appear in their Second Amended Complaint. They did not raise it in their response to CHR's motion for summary judgment on their § 1983 claim.
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A motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of the notice of removal under section 1446(a). If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded. (emphasis added). Over three decades ago, the Ninth Circuit remanded a case to state court where, after a long jury trial, it was discovered there was no real diversity of citizenship between the parties, which had been the basis for removal. Bialac v. Harsh Building Co., 463 F.2d 1185, 1186 (9th Cir. 1972). In so doing, the Court noted the parties could not waive an objection to jurisdiction and could not stipulate to jurisdiction. Id. The Court concluded its short opinion by stating: "But jurisdiction is jurisdiction, so we must remand with direction to send the case back to the state court." Id. Similarly, here, there is no basis for federal court jurisdiction. Plaintiffs lack standing to Thus, this case

assert the one and only federal claim made in their First Amended Complaint. must be remanded to state court. V.

THE JURISDICTIONAL DEFECT CANNOT BE CURED BY AMENDMENT. A. Plaintiffs Cannot Amend To Add The Estate Of Kelly Mikkelsen As A Plaintiff.

Both the United State Supreme Court and the Ninth Circuit have long held that a 18 jurisdictional defect in an action removed to federal court may not be cured by amendment to the 19 complaint in federal court. 20 court lacked jurisdiction over the action at the time it was removed, the jurisdictional defect 21 cannot be cured by amendment); Powers v. Chesapeake & O. Ry. Co., 169 U.S. 92, 101 (1898) 22 (same); Libhart v. Santa Monica Dairy Co., 592 F.2d 1062, 1065 (9th Cir. 1979) (if the district 23 court does not have jurisdiction over the complaint as removed, it lacks jurisdiction to allow an 24 amendment); Abada v. Charles Schwab & Co., Inc., 300 F.3d 1112, 1117 (9th Cir. 2002) (same). 25 Here, for the reasons previously stated, this Court lacks subject-matter jurisdiction over 26
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See Jackson v. Allen, 132 U.S. 27, 34 (1889) (where the federal

RENAUD COOK DRURY MESAROS
ONE NORTH CENTRAL SUITE 900 PHOENIX, AZ 85004 TELEPHONE 602-307-9900 FACSIMILE 602-307-5853

the complaint that was removed. Accordingly, the Court also lacks jurisdiction to allow an
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amendment to that complaint that might cure the jurisdictional defect. supra.

Libhart, supra; Abada,

Thus, if Plaintiffs request leave to amend their Second Amended Complaint in this Court

to attempt to cure the present jurisdictional defect, both the United States Supreme Court and the Ninth Circuit require such request be denied. Jackson, supra; Powers, supra; Libhart, supra;

Abada, supra. According to those cases, this Court has only one option ­ remand to state court. B. Plaintiffs Cannot Jurisdiction. Rely Upon Diversity Of Citizenship To Support

When advised this motion was being filed, Plaintiffs' counsel asserted they would claim 8 this Court currently has diversity jurisdiction, even if it lacks federal question jurisdiction. 9 Plaintiffs are wrong. 10 As a preliminary matter, it is important to recall that removal to this Court was based on 11 existence of an alleged federal question (a claim based upon § 1983 for alleged violation of Kelly 12 Mikkelsen's Eighth Amendment rights) in Plaintiffs' First Amended Complaint. Plaintiffs' First 13 Amended Complaint also included the state law claims originally made against Yuma County. 14 Thus, neither the original nor First Amended Complaints could have been removed on the basis 15 of diversity of citizenship. 16 State of Arizona. 17 The Ninth Circuit recognizes and applies "the core principle of federal removal 18 jurisdiction on the basis of diversity ­ namely, that such jurisdiction is determined (and must 19 exist) as of the time the complaint is filed and removal is effected." Strotek Corporation v. Air 20 21 Energy Systems v. CSL Industries, Inc., 812 F.2d 556, 557 (9 th Cir. 1987) ("Diversity of 22 citizenship is determined as of the time of the filing of the complaint."); Miller v. Grgurich, 763 23 F.2d 372, 373 (9 t h Cir. 1985) ("When an action is removed on the basis of diversity, the requisite 24 diversity must exist at the time the action is removed to federal court. . . The rule requiring 25 diversity at the time removal is sought parallels the rule in federal question cases where a federal 26
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Both Plaintiffs and at least one Defendant then were citizens of the

Transport Association of America, 300 F.3d 1129, 1131 (9th Cir. 2002); see also Co-Efficient

RENAUD COOK DRURY MESAROS
ONE NORTH CENTRAL SUITE 900 PHOENIX, AZ 85004 TELEPHONE 602-307-9900 FACSIMILE 602-307-5853

question must exist at the time the petition for removal is filed."); Mattingly v. Northwestern
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Virginia R. Co., 158 U.S. 53, 56 (1895). Here, because diversity did not exist either at the time when Plaintiffs' original complaint was filed or at the time of removal based on their first amended complaint, removal on that basis would have been improper. Remand is thus required. Id. Plaintiffs have indicated they believe this Court now has jurisdiction because Yuma County has settled and been dismissed from the case. Plaintiffs are wrong. As set forth above, diversity jurisdiction is determined as of the date the original complaint was filed or no later than the date removal was effected. Id. At both of those times, Yuma County was a party to this action. there was no diversity. Moreover, this Court does not have sufficient facts from which to determine whether or not diversity jurisdiction exists. That is, the facts alleged in the the original and First Amended Complaints do not establish the existence of diversity jurisdiction. Removal based upon diversity also must be made within one year of the date the original complaint was filed. 28 U.S.C. § 1446(b). This specific provision limits the general provision Thus,

otherwise applicable to removal of cases for other reasons where it may be ascertained from an amended pleading or order that the case has become removable. One year after this case was filed, Yuma County remained a party. Thus, this case could never have been removed to this Court on the basis of diversity in any event. In essence, because Plaintiffs lack standing to assert their federal question claim (the § 1983 claim for alleged violation of Kelly Mikkelsen's Eighth Amendment rights), they are asking the Court to retain jurisdiction over a state law medical malpractice and negligence lawsuit. Plaintiffs chose to file that lawsuit in state court. There is no basis is law or logic to now allow them to keep that case in federal court where the basis for federal jurisdiction alleged in the removal petition ­ federal question jurisdiction ­ fails. For the reasons previously stated, both United States Supreme Court and Ninth Circuit decisions require this case to be remanded to state court. This Court lacked both federal question

RENAUD COOK DRURY MESAROS
ONE NORTH CENTRAL SUITE 900 PHOENIX, AZ 85004 TELEPHONE 602-307-9900 FACSIMILE 602-307-5853

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and diversity jurisdiction at the time of removal. Accordingly, removal on either basis cannot be sustained. Instead, remand is required. CONCLUSION Based upon the foregoing, Defendants Correctional Health Resources, Inc., Kenneth L. Faiver, Rosemary Faiver, and Joseph Edward Rich, M.D. respectfully suggest this Court may lack subject matter jurisdiction over this matter. If so, this Court must remand this case to state court pursuant to 28 U.S.C. § 1447(c). RESPECTFULLY SUBMITTED this 5th day of October, 2005. RENAUD COOK DRURY MESAROS, PA By: /s/ James W. Barnhouse William W. Drury, Jr. James W. Barnhouse One North Central, Suite 900 Phoenix, Arizona 85004-4418 Attorneys for Correctional Health Resources, Inc., Kenneth Faiver, Rosemary Faiver, and Joseph E. Rich, M.D. PAUL G. ULRICH, P.C.

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By: /s/ Paul G. Ulrich Paul G. Ulrich Melinda K. Cekander 131 E. El Caminito Drive Phoenix, Arizona 85020-3503 Co-Counsel for Correctional Health Resources, Inc., Kenneth Faiver, Rosemary Faiver and Joseph E. Rich, M.D. E-Filed with the U.S. District Court this 4th day of October, 2005; and COPIES of the foregoing mailed this 5th day of October, 2005, to: Hon. John A. Teilborg U.S. District Court 401 W. Washington Phoenix, Arizona 85003

RENAUD COOK DRURY MESAROS
ONE NORTH CENTRAL SUITE 900 PHOENIX, AZ 85004 TELEPHONE 602-307-9900 FACSIMILE 602-307-5853

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John A. Micheaels, Esq. BEALE, MICHEAELS & SLACK, P.C. 1440 E. Missouri Avenue, Suite 150 Phoenix, Arizona 85014 Attorneys for Plaintiff, Dennis Mikkelsen A. James Clark, Esq. CLARK & MOORE 256 South Second Ave., Suite E Yuma, Arizona 85364 Attorneys for Rubecca Mikkelsen, et al. Michael J. Aboud, Esq. ABOUD & ABOUD, P.C. 100 North Stone Ave. Suite 303 Tucson, Arizona 85701 Attorneys for Plaintiff Taylor R. Fox, a Minor, by her next friend and natural mother, TRACY FOX-TANGA Mary Boyte. Esq. BOYTE & MINORE, P.C. 150 West Second Street Yuma, Arizona 85364 Co-Counsel for Plaintiff Taylor R. Fox, a Minor, by her next friend and natural mother, TRACY FOX-TANGA /s/ Debra Garcia

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RENAUD COOK DRURY MESAROS
ONE NORTH CENTRAL SUITE 900 PHOENIX, AZ 85004 TELEPHONE 602-307-9900 FACSIMILE 602-307-5853

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