Matherly v. Las Vegas Valley Water Dist., CV-S-96-24.

• Court: United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Nevada
• Writing for the Court: PRO
• Citation: 926 F. Supp. 990
• Parties: Jerry E. MATHERLY, Petitioner, v. LAS VEGAS VALLEY WATER DISTRICT, Respondent.
• Docket Number: No. CV-S-96-24.,CV-S-96-24.
• Decision Date: 03 June 1996

926 F. Supp. 990

Jerry E. MATHERLY, Petitioner,
v.
LAS VEGAS VALLEY WATER DISTRICT, Respondent.

No. CV-S-96-24.

United States District Court, D. Nevada.

June 3, 1996.

926 F. Supp. 991

Richard Segerblom, Las Vegas, NV, E.M. Gunderson, Las Vegas, NV, for petitioner.

Gregory E. Smith, Malani L. Kotchka, Las Vegas, NV, for respondent.

ORDER

PRO, District Judge.

Before the Court is the Motion to Remand to State Court (# 7) and accompanying Memorandum of Points and Authorities in Support of Motion to Remand to State Court (# 8), filed by Petitioner Jerry E. Matherly ("Matherly") on February 7, 1996. Respondent the Las Vegas Valley Water District (the "Water District") filed its Opposition to Motion to Remand to State Court (# 17) on February 28, 1996. Matherly filed his Reply (# 22) on April 9, 1996.

Also before the Court is a document styled "Supplemental Opposition to Motion to Remand to State Court" (# 23) filed by Respondent the Water District on April 12, 1996. Petitioner Matherly filed his Notice of Intent to Challenge Respondent's Fugitive Supplemental Opposition to Motion to Remand to State Court (# 24) on April 15, 1996. Matherly further filed his Reply to Respondent's Purported Supplemental Opposition to Motion to Remand to State Court (# 25) on April 26, 1996.

I. Background

Jerry E. Matherly ("Matherly") was employed as a Risk Manager for the Las Vegas Valley Water District (the "Water District"). As a Risk Manager, Matherly had supervisory responsibilities over insurance matters and claims by and against the Water District. He alleges that in August 1994, a decision was made to terminate him due to statements he allegedly made. The Water District summarily suspended Matherly on August 29, 1994, and later scheduled a pretermination hearing regarding the matter for September 26, 1994. The officer presiding over the hearing issued a letter-decision dated December 13, 1994 terminating Matherly on December 16, 1994. Matherly then requested a post-termination de novo review of the termination decision. The hearing officer for the post-termination hearing issued a decision dated November 6, 1995, finding that the Water District terminated Matherly for just cause.

Matherly filed his original Petition for Judicial Review, and Alternatively, for a Writ of Mandamus (# 1) in Nevada state court on December 8, 1995. Matherly named as the sole Respondent the Las Vegas Valley Water District ("Water District"), and alleged that the Water District acted arbitrarily and capriciously in rendering its decision, by violating Matherly's rights to due process.

926 F. Supp. 992

On January 8, 1996, the Water District filed its Notice of Removal (# 1), asserting the Court's jurisdiction under 28 U.S.C. § 1331. On February 7, 1996, Matherly filed his Motion to Remand (# 7).

II. Removal

Under 28 U.S.C. § 1441, a Defendant may remove an action to federal court only if it could have been brought in that forum originally. 28 U.S.C. § 1441(b); Felton v. Unisource Corp., 940 F.2d 503, 506 (9th Cir.1991); Jackson v. Southern California Gas Co., 881 F.2d 638, 641 (9th Cir.1989). The Water District, in its Notice of Removal (# 1), asserted that the Court had federal question jurisdiction under 28 U.S.C. § 1331. As the Supreme Court explains, "the presence or absence of federal-question jurisdiction is governed by the `well-pleaded complaint rule.'" Caterpillar, Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 2429, 96 L.Ed.2d 318 (1987). Under this rule, federal jurisdiction exists only when a federal question is presented on the face of the Plaintiff's Complaint. Id. The well-pleaded complaint rule allows the Plaintiff to disregard the federal cause of action, and thus avoid removal, simply by relying exclusively on a state law claim. Felton, 940 F.2d at 506 (quoting Ethridge v. Harbor House Restaurant, 861 F.2d 1389, 1395 (9th Cir.1988)); Redwood Theatres, Inc. v. Festival Enterprises, Inc., 908 F.2d 477, 479 (9th Cir.1990); Garibaldi v. Lucky Food Stores, Inc., 726 F.2d 1367, 1370 (9th Cir.1984), cert. denied, 471 U.S. 1099, 105 S.Ct. 2319, 85 L.Ed.2d 839 (1985). As a result, a Defendant cannot remove a complaint from state court to federal court unless it could have been filed originally in federal court. 28 U.S.C. § 1441; Whitman v. Raley's Inc., 886 F.2d 1177, 1180 (9th Cir.1989) (citing Caterpillar, 482 U.S. at 392, 107 S.Ct. at 2429).

The Defendant has the burden to establish that removal is proper. Harris v. Provident Life & Acc. Ins. Co., 26 F.3d 930, 932 (9th Cir.1994); Nishimoto v. Federman-Bachrach & Associates, 903 F.2d 709, 712 n. 3 (9th Cir.1990). Indeed, all doubts should be resolved against removal. Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir.1992); see Nishimoto, 903 F.2d at 712 n. 3 (removal statute is strictly construed against removal jurisdiction).

In evaluating a claim of removal, the Court must analyze the record at the time the...