Lucero v. Ortiz

• Decision Date: 31 October 2015
• Docket Number: No. CIV 15–0155 JB/WPL,CIV 15–0155 JB/WPL
• Parties: Chris Lucero, Jr., Plaintiff, v. Manny Ortiz, individually and in his official capacity as Treasurer for Bernalillo County, New Mexico, and the County of Bernalillo (Board of County Commissioners of the County of Bernalillo), Defendants.
• Court: U.S. District Court — District of New Mexico

163 F.Supp.3d 920

Chris Lucero, Jr., Plaintiff,

v.Manny Ortiz, individually and in his official capacity as Treasurer for Bernalillo County, New Mexico, and the County of Bernalillo (Board of County Commissioners of the County of Bernalillo), Defendants.

No. CIV 15–0155 JB/WPL

United States District Court, D. New Mexico.

Filed October 31, 2015

Chris Lucero, Jr., Albuquerque, New Mexico, Plaintiff pro se

Richard Valdez, The Valdez Law Firm, Albuquerque, New Mexico, Attorney for Defendant Manny Ortiz

Eric W. Schuler, Michael I. Garcia, Bernalillo County Attorney's Office, Albuquerque, New Mexico and Jonlyn M. Martinez, Law Firm of Jonlyn M. Martinez, Albuquerque, New Mexico, Attorneys for Defendant County of Bernalillo

MEMORANDUM OPINION AND ORDER ADOPTING THE MAGISTRATE JUDGE'S PROPOSED FINDINGS AND RECOMMENDED DISPOSITION, AND REMANDING THE CASE TO THE SECOND JUDICIAL DISTRICT COURT OF THE STATE OF NEW MEXICO

James O. Browning

, UNITED STATES DISTRICT JUDGE

THIS MATTER comes before the Court on the Magistrate Judge's Proposed Findings and Recommended Disposition, filed September 28, 2015 (Doc. 37) (“PFRD”). The issue is whether federal question jurisdiction, for the purposes of removal, can be based on a cross-claim. Because the Court agrees with the Honorable William P. Lynch, United States Magistrate Judge for the District of New Mexico's conclusions, the Court will adopt the PFRD and remand the case to the Second Judicial District Court of the State of New Mexico for lack of subject matter jurisdiction.

PROCEDURAL BACKGROUND

On October 27, 2014, Plaintiff Chris Lucero, Jr., filed a Complaint for Debt in state court seeking payment of legal fees for services rendered during recall petition proceedings for Defendant Manny Ortiz, the Treasurer for Bernalillo County, New Mexico. See Complaint For Debt, filed in state court October 27, 2014, filed in federal court February 24, 2015 (Doc. 1–1) (“Complaint”). The Complaint named both the County of Bernalillo and Ortiz as defendants. See Complaint for Debt at 1. Ortiz answered and filed a cross-claim against Bernalillo County on January 23, 2015. See Answer and Cross–Claim, filed in state court January 23, 2015, filed in federal court February 24, 2015 (Doc. 1 at 7–12)(“Answer and Cross–Claim”). In his Cross–Claim, Ortiz alleged violations of 42 U.S.C. § 1983

. See Answer and Cross–Claim at 10–11. Bernalillo County then removed the case to federal court based on Ortiz's Answer and Cross–Claim. See Notice of Removal, filed February 24, 2015 (Doc. 1 at 3–6)(“Notice of Removal”). The parties do not dispute that Lucero's Complaint did not assert any claims arising under federal law.

Judge Lynch, sua sponte, ordered the parties to submit supplemental briefs addressing the issue whether federal question jurisdiction, for the purposes of removal, can be based on a cross-claim. See Order to Submit Supplemental Briefing, filed September 2, 2015 (Doc. 33). The parties filed supplemental briefs. See Defendant Bernalillo County's Supplemental Brief Concerning the Issue of Whether this Court Has Subject Matter Jurisdiction Over this Case and Whether such Jurisdiction Can be Based on Cross–Claims, filed September 7, 2015 (Doc. 34); Lucero Supplemental Brief to Federal Jurisdiction Issue, filed September 10, 2015 (Doc. 35); Manny Ortiz's Response to Order to Submit Supplemental Briefing, filed September 10, 2015 (Doc. 36).

Objections to the PFRD were due by October 16, 2015. See PFRD at 5. To date, no objections have been filed.

Lucero moved for attorney's fees on October 14, 2015. See Lucero Motion for Attorney's Fees, filed October 14, 2015 (Doc. 42)(“Fee Motion”). He argues that the Court should award him $4,019.53 in fees because there was no objectively reasonable basis for removal. See Fee Motion at 1–3. He explains that Bernalillo County: (i) acknowledged that cross-defendants cannot use removal procedures under 28 U.S.C. § 1441(a)

in its briefing; (ii) removed the case after the removal rule's time limit; and (iii) “attempted to mislead the Court about the existence of a written contract.” Fee Motion at 2.

Bernalillo County responded four days later. See Response to Lucero's Motion for Attorney's Fees, filed October 18, 2015 (Doc. 43)(“Fee Response”). First, Bernalillo County notes that Lucero did not file a timely motion to remand, but simply responded to the Court's request for supplemental briefing. See Fee Response at 6. Second, it contends that its removal was objectively reasonable, because the Court stated that there was no “authority directly on point.” Fee Response at 2. Third, it argues that pro se litigants like Lucero are not entitled to fees. See Fee Response at 4. Finally, it accuses Lucero of filing his Fee Motion in bad faith. See Fee Response at 5.

LAW REGARDING FEDERAL QUESTION JURISDICTION

A federal district court has “original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331

. Federal question jurisdiction exists when “a federal question is presented on the face of the plaintiff's properly pleaded complaint.”

Caterpillar, Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987)

(citing Gully v. First Nat'l Bank, 299 U.S. 109, 112–13, 57 S.Ct. 96, 81 L.Ed. 70 (1936) ). As “the master of the claim,” the plaintiff may choose to sue in state court rather than in federal court “by exclusive reliance on state law.” Caterpillar, Inc. v. Williams, 482 U.S. at 392, 107 S.Ct. 2425.

The defendant may not try to sneak a federal question through the back door by raising a federal defense, for “it is now settled law that a case may not be removed to federal court on the basis of a federal defense ... even if the defense is anticipated in the plaintiff's complaint, and even if both parties concede that the federal defense is the only question truly at issue.” Caterpillar, Inc. v. Williams, 482 U.S. at 393, 107 S.Ct. 2425

(citing Franchise Tax Bd. v. Constr.

Laborers Vacation Trust, 463 U.S. 1, 12, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983) ). See

Nicodemus v. Union Pac. Corp., 318 F.3d 1231, 1236 (10th Cir.2003) (“It is well settled that ‘[a] defense that raises a federal question is inadequate to confer federal jurisdiction.’ ” (quoting Merrell Dow Pharm., Inc. v. Thompson, 478 U.S. 804, 808, 106 S.Ct. 3229, 92 L.Ed.2d 650 (1986) )). While a plaintiff is free to plead a federal question in his complaint, “a defendant cannot, merely by injecting a federal question into an action that asserts what is plainly a state-law claim, transform the action into one arising under federal law, thereby selecting the forum in which the claim shall be litigated.” Caterpillar, Inc. v. Williams, 482 U.S. at 399, 107 S.Ct. 2425. Even the plaintiff can only go so far in attempting to invoke federal-question jurisdiction, because “[a]ny statements in the complaint which go beyond a statement of the plaintiff's claim and anticipate or reply to a probable defense are to be disregarded” in deciding whether federal-question jurisdiction exists. Mescalero Apache Tribe v. Martinez, 519 F.2d 479, 481 (10th Cir.1975).

In addition to the requirement that the federal question appear on the face of the complaint, a “plaintiff's cause of action must either be (i) created by federal law, or (ii) if it is a state-created cause of action, ‘its resolution must necessarily turn on a substantial question of federal law.’ ” Nicodemus v. Union Pac. Corp., 318 F.3d at 1235

(quoting Merrell Dow Pharm., Inc. v. Thompson, 478 U.S. at 808, 106 S.Ct. 3229 ). As for the second method, beyond the requirement of a substantial question of federal law at the heart of the case, the federal question must also be “contested.” Grable & Sons Metal Prods. v. Darue Eng'g & Mfg., 545 U.S. 308, 313, 125 S.Ct. 2363, 162 L.Ed.2d 257 (2005). Finally, the exercise of federal-question jurisdiction must also be “consistent with congressional judgment about the sound division of labor between state and federal courts governing the application of § 1331.” Grable & Sons Metal Prods. v. Darue Eng'g & Mfg., 545 U.S. at 318–19, 125 S.Ct. 2363 (explaining that “there must always be an assessment of any disruptive portent in exercising federal jurisdiction” in accepting “garden variety” state law claims).

In Bar J Sand & Gravel, Inc. v. W. Mobil e N.M. Inc., No. Civ. 05–800 JB/WPL, 2005 WL 3663689 (D.N.M. Sept. 29, 2005)

(Browning, J.), the plaintiff's complaint stated causes of action for breach of contract, breach of the covenant of good faith and fair dealing, and unfair trade practices. See 2005 WL 3663689, at *7. The defendants argued that a federal question was apparent on the face of the complaint

because, as a necessary first step in proving a breach of contract, Bar J [Sand and Gravel, Inc.,] must show that a valid contract actually exists between Bar J and the Defendants. To establish that the parties entered into a valid contract, Bar J must show that all conditions precedent were met, including Bar J's possession of a valid [Sand and Gravel] Permit [that the Pueblo of San Felipe issued to Bar J Trucking, Inc.]. In turn, whether Bar J acquired a valid Permit requires reference to the federal regulations governing the issuance of those permits. Reaching the last link in their chain of argument, the Defendants assert that the federal question is whether the creation of the Permit complied with those regulations.

2005 WL 3663689, at *8

(internal citations omitted). The Court determined that the defendants' argument confused “a condition precedent to contract performance with a condition precedent to contract formation,” and that the argument was raising an issue of federal law as a potential defense, rather than as an element of the plaintiff's case; as such, the issue did not appear on the face of the plaintiff's complaint. 2005 WL 3663689, at *8–9 (emphasis in original). The defendants also argued that a decision whether the plaintiffs validly assigned...