Prince v. City of Jordan, No. CIV 18-0899 JB\GBW

CourtUnited States District Courts. 10th Circuit. District of New Mexico
PartiesCHRISTINA PRINCE, Personal Representative of the Estate of DAVID M. PRINCE, JR., deceased, Plaintiff/Counter-Defendant, v. CITY OF DEMING; CHIEF OF POLICE ROBERT OROSCO; OFFICER G. GIFFORD; PATROLMAN LEE COOK-JORDAN; OFFICER KENDRICK HERNANDEZ; KATHLEEN A. SCHINDLER; DEMING FIRE CHIEF RAUL MERCADO; FIRE DEPARTMENT/EMS EMPLOYEES JULIAN HERNANDEZ; JOSEPH OWEN, ERNESTO GOMEZ; and DR. BASSAM AL-HOMSI, Defendants/Counter-Plaintiffs, and CITY OF DEMING; CHIEF OF POLICE ROBERT OROSCO; OFFICER G. GIFFORD; PATROLMAN LEE COOK-JORDAN; OFFICER KENDRICK HERNANDEZ; KATHLEEN A. SCHINDLER; DEMING FIRE CHIEF RAUL MERCADO; FIRE DEPARTMENT/EMS EMPLOYEES JULIAN HERNANDEZ; JOSEPH OWEN, ERNESTO GOMEZ; and DR. BASSAM AL-HOMSI, Third-Party Plaintiffs, v. FRANCES C. CARPENTER, Third-Party Defendant.
Decision Date10 April 2020
Docket NumberNo. CIV 18-0899 JB\GBW

CHRISTINA PRINCE,
Personal Representative of the Estate of DAVID M. PRINCE, JR., deceased, Plaintiff/Counter-Defendant,
v.
CITY OF DEMING; CHIEF OF POLICE ROBERT OROSCO; OFFICER G. GIFFORD;
PATROLMAN LEE COOK-JORDAN; OFFICER KENDRICK HERNANDEZ;
KATHLEEN A. SCHINDLER; DEMING FIRE CHIEF RAUL MERCADO;
FIRE DEPARTMENT/EMS EMPLOYEES JULIAN HERNANDEZ; JOSEPH OWEN, ERNESTO GOMEZ;
and DR. BASSAM AL-HOMSI, Defendants/Counter-Plaintiffs,
and
CITY OF DEMING; CHIEF OF POLICE ROBERT OROSCO; OFFICER G. GIFFORD;
PATROLMAN LEE COOK-JORDAN; OFFICER KENDRICK HERNANDEZ;
KATHLEEN A. SCHINDLER; DEMING FIRE CHIEF RAUL MERCADO;
FIRE DEPARTMENT/EMS EMPLOYEES JULIAN HERNANDEZ; JOSEPH OWEN, ERNESTO GOMEZ;
and DR. BASSAM AL-HOMSI, Third-Party Plaintiffs,
v.
FRANCES C. CARPENTER, Third-Party Defendant.

No. CIV 18-0899 JB\GBW

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

April 10, 2020


MEMORANDUM OPINION1

THIS MATTER comes before the Court on: (i) the Plaintiff's Motion to Remand and Request for Attorney's Fees, filed September 27, 2018 (Doc. 6)("Motion to Remand"); (ii) the Plaintiff's Motion to Dismiss Counterclaims and Third-Party Complaint for Failure to State Claim and Lack of Subject Matter Jurisdiction, filed October 10, 2018 (Doc. 11)("Counterclaims MTD"); and (iii) the Plaintiff's Motion to Dismiss Counterclaim and Third-Party Complaint [Doc. 36] of Defendant Kathleen A. Schindler, filed January 4, 2019 (Doc. 37)("Schindler MTD"). The Court held a hearing on December 11, 2018. See Clerk's Minutes at 1, filed December 11, 2018 (Doc. 35). The primary issues are: (i) whether this case lacks a federal question such that the Court should remand the case to state court, because Plaintiff Christina Prince is currently raising claims -- medical negligence; negligent hiring, training, supervision, and retention; loss of chance; loss of consortium; negligent investigation and failure to render aid -- arising under only state law, even though some claims implicate municipal liability and Prince requests punitive damages; and (ii) whether Defendants City of Deming, New Mexico, Robert Orosco, G. Gifford, Lee Cook-Jordan, Kendrick Hernandez, Schindler, Raul Mercado, Julian Hernandez, Joseph Owen, and Ernesto Gomez (collectively, "the Defendants") lacked an objectively reasonable basis for seeking

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removal such that Prince is entitled to attorney's fees under 28 U.S.C. 1447. The Court concludes that: (i) remand to the state court is appropriate, because, at this time, Prince does not raise any federal claims, does not seek any punitive damages as a result of violations of federal law, and has affirmatively stated that she is not presently seeking any relief under federal law; and (ii) the Court will not award attorneys' fees, because Prince's Complaint for Wrongful Death, Loss of Chance, and Loss of Consortium ¶¶ 57-62, at 12, filed in state court September 19, 2018, filed in federal court October 8, 2018 (Doc. 10-1)("Original Complaint") contained federal claims, and thus the Defendants were objectively reasonable in removing the case to federal court. Because the Court concludes that it lacks subject-matter jurisdiction over the case, the Court will remand the case to the County of Luna, Sixth Judicial District, State of New Mexico, will not consider the Counterclaims MTD or the Schindler MTD, and will leave those two motions for the state court to decide.

FACTUAL BACKGROUND

Prince alleges that she called 911 on the evening of July 10, 2017, because her husband, David Prince, Jr., took twenty-eight Hydrocodone pills. See Plaintiff's First Amended Complaint for Wrongful Death, Loss of Chance, and Loss of Consortium ¶¶ 18-22, at 5-6, filed September 24, 2018 (Doc. 5)("Amended Complaint"). Prince alleges that, when the Deming Police Department and Deming Fire Department EMS2 arrived, D. Prince told the police officers that he was "fine." Amended Complaint ¶ 19, at 4. Prince alleges that her husband had attempted suicide in the past but that her husband denied to the police officers that he had thoughts of harming himself. See

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Amended Complaint ¶¶ 22-23, at 5. Prince alleges that "EMS staff did not assess or take any vital signs for Mr. Prince," Amended Complaint ¶ 30, at 7, and that EMS personnel allowed D. Prince to sign a refusal of treatment form "despite the fact that they knew or should have known he was not of sound mind to sign any forms or refuse any treatment," Amended Complaint ¶ 32, at 7. According to Prince, the "Deming Police and EMS Defendants determined that David would have been showing signs of overdose if he took 28 Hydrocodone 30 minutes [before they arrived]." Amended Complaint ¶ 34, at 8. In the Counterclaim and Third-Party Complaint, the Defendants allege that D. Prince declined a medical evaluation, medical treatment, or transport to the hospital, so they asked him to sign a release agreement. See Counterclaim and Third-Party Complaint ¶¶ 2-3, at 7. The release agreement states:

Because it is sometimes impossible to recognize actual or potential medical problems outside the hospital, we strongly encourage you to be evaluated, treated if necessary, and transported to a hospital by EMS personnel for more complete examination by a physician.

You have the right to choose not to be evaluated, treated or transported; however, there is the possibility that you could suffer serious complications or even death from conditions that are not apparent at this time.

By signing below, you are acknowledging that EMS personnel have advised you, and that you understand, the potential harm to your health that may result from your refusal of the recommended care; and, you release EMS and supporting personnel from liability resulting from refusal.

Demin Fire Department/Emergency Medical Services Refusal of Treatment, Transport, and/or Evaluation at 1, filed October 2, 2018 (Doc. 9-1)("Release Agreement").

Prince alleges that, a few hours after EMS personnel left the residence, around 4:27 a.m. on July 11, 2017, she awoke and found D. Prince "unresponsive, not breathing and cold to the touch," so she again called 911. Amended Complaint ¶ 18, at 4. Prince alleges that, when the

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police officers and EMS personnel responded, D. Prince's medical assessment "showed Asystole3 with obvious signs of death." Amended Complaint ¶ 36, at 8. Prince alleges that D. Prince was pronounced dead at 6:10 a.m., and that an "autopsy showed that Mr. Prince died from the toxic effects of Hydrocodone, and that the manner of death was suicide." Amended Complaint ¶ 36, at 8. Prince alleges that, had the Deming police officers and EMS personnel "conducted a proper medical evaluation when they saw Mr. Prince on July 10, 2017, they could have prevented his death." Amended Complaint ¶ 37, at 8. Prince alleges that she is "the duly appointed Personal Representative of the Estate of David M. Prince, Jr., Deceased." Amended Complaint ¶ 3, at 2.

PROCEDURAL BACKGROUND

Prince filed the Original Complaint in the County of Luna, Sixth Judicial District, State of New Mexico, on September 18, 2018. See Original Complaint at 2. In Count I, Prince alleges that the City of Deming, Mercado, J. Hernandez, Owen, Gomez, and Defendant Dr. Bassam Al-Homsi committed medical negligence.4 See Original Complaint ¶¶ 45-51, at 11-12. In Count II, Prince alleges that the City of Deming, Orosco, and Mercado committed negligent hiring, training, supervision, and retention. See Original Complaint ¶¶ 52-56, at 13. In Count III, Prince brings a Monell v. Department of Social Services of New York, 436 U.S. 658 (1978)("Monell"), claim against the City of Deming, Orosco, and Mercado for "violat[ing] Federal and State law including but not limited to the Constitution." Complaint ¶ 59, at 13. See Original Complaint ¶¶ 57-62, at

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13. In Count IV, Prince brings a claim for loss of chance against all Defendants. See Original Complaint ¶¶ 63-74, at 13-15. In Count V, Prince brings a claim for loss of consortium against all Defendants. See Original Complaint ¶¶ 75-80, at 15. In Count VI, Prince alleges that the City of Deming, Orosco, Gifford, Cook-Jordan, K. Hernandez, and Schindler committed negligent investigation, and failure to render aid under the community caretaker function and emergency assistance doctrine, resulting in wrongful death under N.M. Stat. Ann. § 41-4-12. See Original Complaint ¶¶ 81-97, at 16-17.

1. The Notice of Removal.

The Defendants removed the case to federal court on September 24, 2018. See Notice of Removal of Cause, filed September 24, 2018 (Doc. 1)("Notice of Removal"). The Defendants argue that the "Complaint asserts claims or rights arising under the Constitution of the United States" and that the "Court has jurisdiction pursuant to 42 U.S.C. § 1983." Notice of Removal ¶¶ 2-3, at 2. The Defendants contend that this case "is removable under the provisions of 28 U.S.C. § 1441, in that the claims or a portion of the claims arise under the Constitution of the United States." Notice of Removal ¶ 3, at 2.

2. The Amended Complaint.

Prince filed the Amended Complaint on September 24, 2018, shortly after the Defendants filed the Notice of Removal. See Amended Complaint at 1. The Amended Complaint brings the claims that the Original Complaint brings in Counts I, II, IV, V, and VI, but the Amended Complaint lacks the Original Complaint's Count III, which brings a Monell claim against City of Deming, Orosco, and Mercado for constitutional violations. Compare Amended Complaint ¶¶ 45-91, at 8-16, with Original Complaint ¶¶ 45-97, at 11-17. The Amended Complaint does not bring any additional claims. See Amended Complaint ¶¶ 45-91, at 8-16.

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3. The Motion to Remand.

Prince filed the Motion to Remand on September 27, 2018. See Motion to Remand at 1. Prince contends that she "brought no federal claims against Defendants but did inadvertently leave in the municipal liability claim also known as a Monell claim which was in the first draft of the Complaint." Motion...

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