‘TERRY F. SCHAPLOW, P.C. 1700 West Koch, Suite 11 Bozeman, Montane 59715 (406) 587-2767 [Attorney for Plaintiff IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT COURT OF MONTANA. BILLINGS DIVISION IMARTHA L. DENTON, ) ) Cause No. CV 06-73-BLG-RFC Plaintiff, > 2 v. ) PLAINTIFF'S MOTION TO ) REMAND IBLAKE BLATTER, individually and as an) lagent of Park County: CLARK ) ICARPENTER, individually and as an agent) lof Park County; and PARK COUNTY, a) lpolitical subdivision of the State of | aca Defendants. ) eee ) COMES NOW the Plaintiff, Martha L. Denton, by and through her attomey of record, Terty IF. Schaplow, and pursuant to 28 U.S.C. §1447 moves the Court to remand the case to the Sixth bu ial District Court of Park County, Montana, This motion is made for the reasons set forth loelow. 1 INTRODUCTION AND SUMMARY OF ARGUMENT The allegations in this case generally arise out of the Plaintiff's unlawful arrest, false limprisonment and improper treatment thereafter by Park County officials, PlaintitTis a paraplegic lwhose rights were violated by said officials, for example, by intentionally ignoring her physical and Imedicat needs, causing her to urinate on herself and then not bathing her. Defendants remaved this case to federal court on the grounds that Plaintiff allegedly invoked |Cause No. CV 06-73-BLG-RFC/ Plaintiff's Motion to Remand Page 1civil rights violations under the U.S. Constitution. However, Plaintiff's Complaint is bottomed in state causes of action. Count 1 relates to false imprisonment, Count 2 relates to malicious prosecution, another state claim. Count 3 relates to emotional distress, another state claim, Count iis arguably the only count involving civil rights violations under the United States Constitution Count 5 of the Plaintif?'s Complaint alternatively alleges violation of those same civil rights junder the Montana Constitution; Count 6 alleges the state law causes of action of negligence and lnegligence per se; and Count 7 alleges a state cause of action for punitive damages. Moreover, Montana citizens enjoy greater protection from cruel and unusual punishment due to the guarantee of individual dignity under the Montana Constitution (Art. II, §4), Walker v, State (2003) 2003 MT 134, 68 P.3d 872, 883. Therefore, the Park County District Court is the better forum for deciding Plaintif's civil rights claims against the Defendants and abstention is appropriate, IColorado River Water Conservation Dist, v US, (1976) 423 U.S. 800, 96 $.Ct. 1236, 47 LEd.24 lass. According to paragraph 5 of the Defendants’ Notice of Removal, this Court has original jurisdiction pursuant to 28 U.S.C. §1441 and §1331 because the Plaintiff has alleged a “federal civil rights claim" under 42 U.S.C. §1983 in Count 4 ofthe Complaint. Count 4 alleges that the following, rights of the Plaintiff were violated: freedom from arrest and prosecution without probable cause, lteedom from cruel and unusual punishment, freedom from unreasonable searches and seizures, and he right to due process However, Defendants fail to note that Plaintiff has pleaded an alternative theory of violation lof those same rights under the Montana Constitution in the very next count of the Complaint (Count |S thereof), When an alternative theory of relief exists for the claims in the complaint, one not \dependent upon federal law, it defeats federal question jurisdiction, Duncan v. Al Stuetzle (9* Cir. 1996) 76 F.3d 1480, 1491, citing Christianson v, Colt Industries Operating Corp. (1988) 486 US. {800, 108 S.Ct, 2166, 100 L-Ed.2d 811 An example of alternative theories is as follows. A jury may well find that Plaintiff's right to |be free from arrest jout probable cause under the Montana constitution was violated without Imaking a similar finding under the U.S. Constitution. Federal jurisdiction must be rejected if there |Cause No, CV 06-73-BLG-RFC/ Plaintiff's Motion to Remand Page 210 ul 2 13 15 16 iW 18 19 20 2 22 23 24 25 26 27 28 is any doubt as to the right of removal in the first instance, Duncan supra, 76 F.3d at 1485. Moreover, the allegations in the instant case are very similar to those in another state case Iwhere this Court ordered that remand was approptiate, the Madison County case of Johnson v. Edmisten, et al. (see accompanying Schaplow affidavit). In that case, this Court correctly ruled that leven though the facts there could give rise to a §1983 claim, state courts still have jurisdiction to hear those claims (Schaplow affidavit, Exh. A, p. 4) 2 DUNCAN MANDATES REMAND TO STATE COURT In Duncan, supra, the Ninth Circuit reversed the district court and ordered that Duncan’s Imotion to remand should have been granted. At issue in Duncan was a complaint where the claims lhad alternate theories under both state law and federal law. However, before addressing the merits, the Court made several prefatory comments which are relevant here |A. Removal Statutes Are To Be Strictly Construed And The Defendants Have The Burden Of Establishing That Removal Is Proper The Duncan court stated as follows regarding the congressional purpose restricting iusisdiction of federal courts on removal: “Because of the ‘Congressional purpose to restrict the jurisdiction of the federal courts on removal,’ Shamrock Oil & Gas Corp. v, Sheets 313 US, 100, 108, 61 S.Ct,'868, 872, 83 L.Ed, 1214 (1941), the statute is strictly construed, id_at 108-109, 61 S.Ct. at 872, and federal jurisdiction ‘must be rejected if there is any doubt as to the right of removal in the first instance.’ Gavs v. Miles, Tnc., 980 F.2d 564, 566 (9" Cir, 1992) (citation omitted). Stuetzle, as one of the original defendants, has the burden of establishing that removal was proper, Harris v_ Provident Life and Accident Ins, Co., 26 P.3d 930, 932 (9" Cir, 1994) (quotations and citations omitted.” Duncan, supra, 76 F.3d at 1485, The Court continued by stating that an action filed in state court may be removed only if the \district court could have exercised jurisdiction over the action if originally filed there and that it must lbe clear from the face of plaintiff's well-pleaded complaint that there is a federal question, Duncan, |supra, 76 F.3d at148s, In this case, the Defendants, as the parties removing the case, have the burden of establishing that removal is proper and, 2s discussed below, they have failed to discharge that burden. |Cause No. CV 06-73-BLG-RFC/ Plaintiff's Motion to Remand Page 3IB. Christianson Set Forth A Two-Prong Test Later in the Duncan opinion, the Ninth Cirewit set forth the two-prong test for removal “Christianson also distilled these basic principles into a single two~ pronged test. Under that test (as applied to this case), federal jurisdiction extends only to those cases in which a well-pleaded complaint establishes either that [1] federal [trademark] law creates the cause of action or [2] that the plaintiff s right to relief necessarily, depends on resolution of a substantial question of federal [trademark Jaw, in that [federal trademark) law is a necessary element of one of the well-pleaded claims.” (Bracketing in original. Duncan, supra 76 F.3d at 1486. ‘The Court continued by saying that, in addition in order to satisfy the second prong of the test, it is not necessarily sufficient that a well-pleaded claim allege a single theory under which resolution of a federal law question is essential. A claim supported by altemative theories in the jcomplaint may not form the basis for federal jurisdiction unless federal law is essential to each of [those theories, id. at p. 1486. ‘The Duncan Court further explained the second prong of the Christianson test as follows: “The complaint also Sails Christianson's second prong. In order to satisfy it, Stuetzle must show that resolution of a federal trademark law question is essential to each of the alternative theories in support of any one of the three causes of action in the complaint. Stated another way, ifa single state-law based theory of relief can be offered for each of the three causes of action in the complaint, then the exercise of removal jurisdiction was improper.” Duncan, supra, at p. 1486, Here, neither prong is satisfied 3, the Pisiatif?’s action of alleging civil rights under the ILS. Constitution does not necessarily raise a §1983 claim (Schaplow affidavit, Exh, B, p. 2-3), thereby negating the first prong Second, the Defendants have failed to satisfy the second prong because there is an alternative istate theory for the civil rights violations, based on the Montana Constitution (Count 5 of the Complaint). This defeats federal jurisdiction as discussed below, IC. Plaintiff’ Alternative Theory of Relief Defeats Federal Jurisdiction As discussed above, the Duncan Court held that the complaint at issue there should not have been removed to federal court. In so holding, the court cited Ultramar America Ltd_ v Dwele (9" (Cir, 1990) 900 F.2d 1412, 1414 for the proposition that: Cause No. CV 06-73-BLG-RFC/ Plaintiff's Motion to Remand Page 4wk wo em under Christianson, ‘{t]he fact that an alternative theory of relief exists for each claim alleged in the complaint, one not depended vpon federal law, is itself grounds to defeat federal question jurisdiction’ ” ‘Duncan, supra at p. 1491. ‘The Duncan Court assumed that the plaintiff's claims might also be cognizable under federal Jaw (Lanham Act), but then stated as follows: “However, this fact is irrelevant, because under Christianson the jurisdictional question turns solely on whether a theory of recovery other than the Lanham Act exists.” (‘Christianson teaches us that, if a aim is supported not only by a theory establishing federal subject matter jurisdiction but also by an alteriative theory which would not establish such jurisdiction, then fedcral subject niatter jurisdiction does not exist’).” Duncan, supra at p. 1491, n, 17. Here again, because Plaintiff offered alternative theorics for her civil rights violations, federal lsubjeot matter jurisdi ion does not exist and, therefore, this Court is not the proper jurisdiction for this case The only other reliance upon federal law in Denton's Complaint is the seeking of attomey’s fees pursuant to 42 U.S.C. $1988. However, in that same paragraph in the same count, Denton also [puts forth an alternative theory under state law for those same attorneys fees pursuant to the Private |Atorney General Doctrine (Complaint, Count 5, 147), School Trust v. State Ex. Rel Bd_of [Comm'rs (1999) 296 MY 402, 989 P.2d 800, 812 ID. This Action Was Not Properly Removed In paragraph 6 of their Notice of Removal, the Defendants mischaracterize Plaintif?'s {Complaint by alleging that Count 4 vests original jurisdiction in federal court and quote 28 U.S.C. 1§1441(b). That statute states that a civil action founded on a right arising under the U.S. Constitution shall be removable, However, as discussed above, Plaintiff alleged the same civil rights claims under state law in Count 5, creating an alternative theory of relief, Duncan also quotes 28 U.S.C. §1441(b) finding that the complaint before it did not vest original jurisdiction in federal court, Duncan, supra jat p. 1484-85, Therefore, this Court should likewise find that original jurisdiction does not lie and remand |Cause No. CV 06-73-BLG-RFC/ Plaintiff's Motion to Remand Page S[the case to state district court. 3 DEFENDANTS HAVE FAILED TO COMPLY WITH THE REMOVAL STATUTES 28 U.S.C, §1447(c) provides as follows “(e) 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 the final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded. An order remanding the case may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal. A certified copy of the order of remand shall be mailed by the clerk to the clerk of the State court. The State court may thereupon proceed with such case.” As discussed above, Defendants claim that only Count 4 of the Complaint alleges violations junder the United States Constitution (Defendants’ Notice of Removal, {5), and this is not sufficient to involve this Court's mandatory jurisdiction, Because Plaintiff has not specifically raised a §1983, |claim, this Court's jurisdiction is discretionary (see Judge Cebull’s opinion, p. 2-3, Schaplow affidavit, JExh. B), Moreover, there is no diversity of citizenship here and even if PlaintifY’s claims under the U.S [Constitution could be construed as giving rise to a §1983 claim, state courts have jurisdiction to hear such claims, see Barr v. Great Falls Intern, Airport Authority, 2005 WL 418552 and the other cases cited on page 4 of Judge Cebull’s Order (Schaplow affidavit, Exh. B). In the Defendants’ Notice of Removal, they allege that this Court has jurisdiction of the matter pursuant to 28 U.S.C. $1331 (Defendants’ Notice of Removal, 6). However, it is well ‘settled that a federal district court is under no compulsion to exercise its jurisdiction where the [controversy may be settled more expeditiously in the state court, Will v, Calvert Fire Ins. Co, (1978) /437 U.S. 655, 662-63, 98 S.Ct. 2552, 2557, 57 L.Bd.2d 504. In Will, the court recognized that Situations would often arise when it would be appropriate to defer to state courts even when matters lof substantive federal law are involved, 437 U.S. at 663-64. In Colorado River, supra, the court stated as follows: “Abstention is also appropriate where there have been presented (Cause No. CV 06-73-BLG-RFC/ Plalntif?’s Motion to Remand Page 6Sow ya n 1B 14 15 16 7 18 19 20 21 2 23 24 25 26 27 28 difficult questions of state law bearing on policy problems of substantial public import whose importance transcends the result in the case than at bar... .. in some cases, however, the state question itself need not be determinative of staio policy. It is enough that ‘exercise of federal review of the question in a case and in similar cases would be disruptive of state efforts to establish a coherent policy with respect to a matter of substantial public concern.” 423 U.S. at 815, 96 $.Ct. at 1244 Also, in Colorado River, the dismissal of the federal action was designed to promote |“conservation of judicial resources and comprehensive disposition of litigation”, 424 U.S. at 817, 96 IS.Ct, at 1246, These goals are likely to be furthered by remanding a removed action to state court, {thereby accommodating the values of economy, convenience, and comity, Corcoran v, Andra Ins. Co, \(2™ Cir. 1988) 842 F.2d 31, 36. Moreover, the Ninth Circuit has found a general discretion to lremand cases to the state courts, Murphy v. Kodz (9% Cir. 1965) 351 F.2d at 168, A. Abstention is Appropriate In this case, abstention and/or remand is appropriate for three reasons, First, in Walker v. [State (2003) 2003 MT 134, 68 P.3d 872, 883, the Montana Supreme Court found that Montana citizens enjoy greater protection from cruel and unusual punishment (accorded by both the state and {federal constitutions) because of the right of individual dignity in the Montara. Constitution Specifically, the court held as follows ““[W]e read the dignity provision ofthe Montana Constitution together with Article IT, Section 22 [prohibiting cruel and unusual punishment] to provide Montana citizens greater protection from cruel and unusual punishment than does the federal constitution. The federal Constitution does not expressly provide for the right to human dignity.” Walter, supra, 68 P.3d at 883. (Therefore, because this case necessarily involves the interpretation of Walker, the Park County state [court would be the more appropriate forum, ‘Second, the Park County jail has no facilities for disabled inmates (Schaplow affidavit, 4). [Because Park County District Judge Swandal became intimately familiar with the jail during his time Jas county attorney (Schaplow affidavit, 45), he will not have to “reinvent the wheel” when the jail [conditions are described during pretrial motions, depositions and trial. This factor is similar to the lother pending cases in state district court noted in Johnson v, Edmisten (Schaplow affidavit, Exh. A, |p. ). |Cause No, CV 06-73-BLG-REC/ PI ifX"s Motion to Remand Page 7Sowa.) u 12 13 4 15 16 7 18 19 20 2 2 23 24 25, 27 28 4 CONCLUSION For the above reasons, this Court should remand this case to state district court. Removal statutes are to be strictly construed and the Defendants have failed to discharge their burden of justifying removal, Duncan, supra. The Plaintiff's action of alleging alternative theories for the same civil rights violations defeats original federal jurisdiction under the statute relied on by the Defendants, [28 U.S.C. §1441, Duncan, supra, For example, a jury may well find that Plaintiff's right to be free Itrom arrest without probable cause under the Montana constitution was violated without making a similar finding under the U.S. Constitution, Federal jurisdiction must be rejected if'there is any doubt, las to the right of removal in the first instance, Duncan, supra, 76 ¥ 3d at 1485 Also, because Plaintiff has not specifically raised a §1983 claim, this Court’s jurisdiction is \discretionary (Schaplow affidavit, Exh. B, p. 3) and state courts have jurisdiction to hear such claims, [Barr, supra, Because all of Plaintiff's other counts sound in state law, abstention is appropriate, (Colorado River, supra DATED this 13® day of June, 2006. TERRY F. SCHAPLOW ~ Attorney for Plaintiff CERTIFICATE OF SERVICE hereby certify that on the 13" day of June, 2006, the foregoing document was served on wunsel of record via 1* class mail, a true and correct copy thereof to the following [Steven R. Milch [Crowley Lavy Firm IP 0. Box 2529 Billings, MT 59103-2529 eae eee cam TerryF. Schaplov [Cause No. CV 06-73-BLG-REC! Pl iff's Motion to Remand Page 8