OPINION AND ORDER
This matter is before the Court on Plaintiff's Motion to Remand [DE 27], filed on July 20, 2018, and on the State of Indiana's Motion to Remand [DE 34], filed on August 1, 2018. Defendants filed a joint response to both motions on August 15, 2018. Plaintiffs and the State of Indiana filed separate replies on August 22, 2018. Plaintiffs filed notices of supplemental authority on May 16, 2019, July 17, 2019, and October 9, 2019. Defendants filed a response to the first of these notices on May 24, 2019.
On April 14, 2020, the Court raised the issue of whether an intervenor's standing to bring a suit in federal court under Article III of the United States Constitution could make a case removable that, prior to intervention, was not removable due to lack of Article III standing. The Court invited supplements on this topic. Plaintiffs filed a supplement on April 28, 2020, in which Plaintiffs argued that such an intervention does not make a case removable. Defendants filed a supplement on April 30, 2020, in which they took the opposite position.
For the reasons stated below, the Court remands this case to state court due to this Court's lack of subject matter jurisdiction.
BACKGROUND
Plaintiffs initiated this case by filing a complaint in Lake County Circuit Court on December 5, 2017. In the complaint, Plaintiffs bring an action under Indiana Code § 5-2-18.2-5 to compel Defendants to comply with Indiana's sanctuary city preemption law. Plaintiffs allege statutory standing and standing due to Indiana' public standing doctrine to bring the action to compel. Plaintiffs do not allege Article III standing.
The State of Indiana filed a motion to intervene "for the purpose of defending the constitutionality of Indiana Code chapter 5-2-18.2." (Notice Removal Exs. 20-40, p.17, ECF No. 1-5). The motion to intervene was granted in Lake County Superior Court1 on April 30, 2018.
Removal to federal court did not occur immediately, and a motion to dismiss and cross-motions for summary judgment were filed while the case was pending in state court. In the Notice of Removal, filed on July 6, 2018, Defendants argue that the state law claims raise federal issues such that federal question subject matter jurisdiction exists under Grable & Sons Metal Products, Inc. v. Darue Engineering & Manufacturing, 545 U.S. 308, 314 (2005). Defendants further argue that, though Plaintiffs do not have standing to bring their claims in federal court, the State as an intervenor has Article III standing to bring Plaintiff's claims, and, therefore, the case became removable when the state court granted the State's motion to intervene.
Plaintiffs allege that the enactment of City of Gary Ordinances §§ 26-52, 26-55, 26.58(c), and 26.592 violates Indiana Code §§ 5-2-18.2-3, -4, and -7. The ordinances provide:
Section 26-52. Requesting information prohibited.
No agent or agency shall request information about or otherwise investigate or assist in the investigation of the citizenship or immigration status of any person unless such inquiry or investigation is required by an order issued by a court of competent jurisdiction. Notwithstanding this provision, the Corporation Counsel may investigate and inquire about citizenship or immigration status when relevant to potential or actual litigation or an administrative proceeding in which the City is or may be a party.
Section 26-55. Immigration enforcement actions - Federal responsibility.
No agency or agent shall stop, arrest, detain, or continue to detain a person after that person becomes eligible for release from custody or is free to leave an encounter with an agent or agency, based on any of the following:
(a) an immigration detainer;
(b) an administrative warrant (including but not limited to entered into the Federal Bureau of Investigation's National Crime Information Center database); or
(c) any other basis that is based solely on the belief that the person is not present legally in the United States, or that the person has committed a civil immigration violation.
(d) No agency or agent shall be permitted to accept requests by ICE or other agencies to support or assist in any capacity with immigration enforcement operations, including but not limited to requests to provide information on persons who may be the subject of immigration enforcement operations (except as may be required under section 11 of this ordinance), to establish traffic perimeters, or to otherwise be present to assist or support an operation. In the event an agent receives a request to support or assist in an immigration enforcement operation, he or she shall report the request to his or her supervisor, who shall decline the request and document the declination in an interoffice memorandum to the agency director through the chain of command.
(e) No agency or agent shall enter into an agreement under Section 1357(g) of Title 8 of the United States Code or any other federal law that permits state or local governmental entities to enforce federal civil immigration laws.
(f) Unless presented with a valid and properly issued criminal warrant, no agency or agent shall:
(1) permit ICE agents access to a person being detained by, or in the custody of, the agency or agent;
(2) transfer any person into ICE custody;
(3) permit ICE agents use of agency facilities, information (except as may be required under section 11 of this ordinance), or equipment, including any agency electronic databases, for investigative interviews or other investigative purpose or for purposes of executing an immigration enforcement operation; or
(4) expend the time of the agency or agent in responding to ICE inquiries or communicating with ICE regarding a person's custody status, release date, or contact information.
Section 26.58. Commitments
. . .
(c) The City recognizes the arrest of an individual increases that individual's risk of deportation even in cases where the individual is found to be not guilty, creating a disproportionate impact from law enforcement operations. Therefore, for all individuals, the Gary Police Department will recognize and consider the extreme potential negative consequences of an arrest in exercising its discretion regarding whether to take such an action and will arrest an individual only after determining that less severe alternatives are unavailable or would be inadequate to effect a satisfactory resolution.
. . .
Section 26.59. Information regarding citizenship or immigration status.
Nothing in this chapter prohibits any municipal agency from sending to, or receiving from, any local, state, federal agency, information regarding an individual's citizenship or immigration status. All municipal agents shall be instructed that federal law does not allow any such prohibition. "Information regarding an individual's citizenship or immigration status," for purposes of this section, means a statement of the individual's country of citizenship or a statement of the individual's immigration status.
The text of the pertinent Indiana Code sections is as follows.
Sec. 3. A governmental body or a postsecondary educational institution may not enact or implement an ordinance, a resolution, a rule, or a policy that prohibits or in any way restricts another governmental body or employee of a postsecondary educational institution, including a law enforcement officer, a state or local official, or a state or local government employee, from taking the following actions with regard to information of the citizenship or immigration status, lawful or unlawful, of an individual:
(1) Communicating or cooperating with federal officials.
(2) Sending to or receiving information from the United States Department of Homeland Security.
(3) Maintaining information.
(4) Exchanging information with another federal, state, or local government entity.
Sec. 4. A governmental body or a postsecondary educational institution may not limit or restrict the enforcement of federal immigration laws to less than the full extent permitted by federal law.
. . .
Sec. 7. Every law enforcement agency (as defined in IC 5-2-17-2) shall provide each law enforcement officer with a written notice that the law enforcement officer has a duty to cooperate with state and federal agencies and officials on matters pertaining to enforcement of state and federal laws governing immigration.
Ind. Code. §§ 5-2-18.2-3, -4, -7.
ANALYSIS
A state court civil action "of which the district courts of the United States have original jurisdiction[ ] may be removed by . . . the defendants[ ] to the district court of the United States." 28 U.S.C. § 1441(a). Because federal courts are courts of limited jurisdiction, the removal statute is to be narrowly construed, with all doubts resolved against permitting removal. Ctr. for Wildlife Ethics, Inc. v. Clark, 325 F. Supp. 3d 911, 914 (N.D. Ind. 2018).
Because Defendants removed this matter from state court to federal court, they bear the burden of showing that federal jurisdiction exists over this litigation. Walker v. Trailer Transit, Inc., 727 F.3d 819, 824-25 (7th Cir. 2013). Thus, Defendants must "establish that all elements of jurisdiction—including Article III standing—existed at the time of removal." Collier v. SP Plus Corp., 889 F.3d 894, 896 (7th Cir. 2018) (citations omitted).
Article III standing requires that "[t]he plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision." Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016), as revised (May 24, 2016).
The State of Indiana alleges an injury in fact (the enactment of ordinances in violation of state statutes), that is fairly traceable...
