1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ESTATE OF ORAL W. NUNIS, SR. by Case No.: 21-cv-1627-AJB-DEB and through, ROXIE A. NUNIS, 12 individually and as successor in interest ORDER: 13 to the ESTATE, et al., (1) DENYING MOTION TO 14 Plaintiffs, REMAND 15 v. (2) DENYING AS MOOT EX PARTE 16

MOTION TO SHORTEN TIME FOR

17 CITY OF CHULA VISTA, et al., MOTION HEARING

18 Defendants. (Doc. Nos. 8, 11) 19 20 21 Before the Court is a motion to remand filed by Plaintiffs, Estate of Oral W. Nunis, 22 Sr., by and through Roxie A. Nunis, individually and as successor in interest to the Estate; 23 Naomi Nunis; Willie Mae Kirkland as Guardian ad Litem for Abigail Tabitha Nunis; and 24 Jabez Caleb Nunis (“Estate Plaintiffs”). (Doc. No. 8.) Defendants, City of Chula Vista, 25 Evan Linney, Manuel Padilla, David Rivers, Brian Olson, Jordan Salvador, David Arce, 26 Denny Kremer, and Kenneth Hicks (collectively “Defendants”) filed an opposition, to 27 which the Estate Plaintiffs replied. (Doc. Nos. 12, 15.) Having reviewed the parties’ 28 moving papers, the Court finds the motion suitable for determination without oral 1 argument. Civ. L. R. 7.1(d)(1). For the reasons set forth below, the Court DENIES the 2 motion to remand. 3 I. BACKGROUND 4 On September 15, 2021, San Diego Superior Court Judge Gregory W. Pollack 5 granted Defendants’ unopposed motion to consolidate two related wrongful death lawsuits 6 arising out of Oral W. Nunis, Sr.’s death on March 13, 2020, while in the custody of Chula 7 Vista police officers. (Doc. No. 17 at 54.) The two cases are (1) Estate of Oral W. Nunis, 8 Sr., et al. v. City of Chula Vista, et al., brought by the decedent’s wife and three younger 9 children; and (2) Kimone Nunis, et al. v. City of Chula Vista, et al., brought by the 10 decedent’s four older children. (Id. at 2–3.) The operative complaint in the Estate matter 11 brings causes of action for civil rights violations under California’s Bane Act, assault, 12 battery, false imprisonment, and negligence. (Id. at 6.) The operative complaint in the 13 Kimone matter brings several causes of action, including civil rights violations under 42 14 U.S.C. § 1983, civil rights violations under the Bane Act, assault, battery, negligence, and 15 negligent and intentional infliction of emotional distress. (Id. at 29.) On September 16, 16 2021, Defendants removed the consolidated case to federal court based on federal-question 17 jurisdiction. (Doc. No. 1.) The instant motion to remand the case to state court follows. 18 (Doc. No. 8.) 19 II. LEGAL STANDARD 20 The right to remove a case to federal court is entirely a creature of statute. See 21 Libhart v. Santa Monica Dairy Co., 592 F.2d 1062, 1064 (9th Cir. 1979). The removal 22 statute, 28 U.S.C. § 1441, allows defendants to remove an action when a case originally 23 filed in state court presents a federal question, or is between citizens of different states and 24 involves an amount in controversy that exceeds $75,000. See 28 U.S.C. §§ 1441(a), (b); 28 25 U.S.C. §§ 1331, 1332(a). Only state court actions that could originally have been filed in 26 federal court can be removed. 28 U.S.C. § 1441(a); see also Caterpillar Inc. v. Williams, 27 482 U.S. 386, 392 (1987); Ethridge v. Harbor House Rest., 861 F.2d 1389, 1393 (9th Cir. 28 1988). 1 The presence of federal-question jurisdiction “is governed by the ‘well-pleaded 2 complaint rule,’ which provides that federal jurisdiction exists only when a federal question 3 is presented on the face of the plaintiff’s properly pleaded complaint.” Caterpillar, 482 4 U.S. at 392. “The rule makes the plaintiff the master of the claim; he or she may avoid 5 federal jurisdiction by exclusive reliance on state law.” Id. In determining jurisdiction over 6 separate actions that have been consolidated for all purposes, “the actions are treated as if 7 only one complaint had originally been filed.” Bridewell-Sledge v. Blue Cross of 8 California, 798 F.3d 923, 925 (9th Cir. 2015). 9 III. DISCUSSION 10 The Estate Plaintiffs argue that this action should be remanded because the operative 11 complaint in the Estate matter “does not trigger federal subject matter jurisdiction since 12 only state common law causes of action of assault, battery, false imprisonment, and 13 negligence are pleaded.” (Doc. No. 8 at 9.) The Estate Plaintiffs further assert that because 14 the Estate matter “is well underway” with discovery produced and a trial date pending on 15 May 13, 2022 in state court, the Court should exercise its discretion to remand this action. 16 (Id. at 12–13.) Defendants contend that it is irrelevant that the operative complaint in the 17 Estate matter did not contain a federal question because the consolidated action before this 18 Court, which includes the Kimone matter, does. (Doc. No. 12 at 6.) The Court agrees. 19 There is no dispute that the Estate and Kimone matters were consolidated at the state 20 court level for all purposes. (Doc. Nos. 12 at 6; 15 at 3.) To determine whether 21 federal-question jurisdiction exist over this consolidated case, the Court looks to the 22 complaint in both actions, treating them “as if only one complaint had originally been 23 filed.” Bridewell-Sledge, 798 F.3d at 925. Applying the well-pleaded complaint rule, the 24 Court finds that it has federal-question jurisdiction over this case because the consolidated 25 action contains four claims pursuant to 42 U.S.C. § 1983, a federal statute. (Doc. No. 17 at 26 41–46, Kimone Compl.) Because the consolidated action raises a federal question, the 27 Court has subject matter jurisdiction over this case, and Defendants were entitled to 28 removal. See 28 U.S.C. § 1441(a); 28 U.S.C. § 1331; Caterpillar, 482 U.S. at 392. 1 While the Estate Plaintiffs argue that principles of fairness and equity require the 2 Court to remand the case, “[j]urisdictional dismissals in cases premised on federal-question 3 jurisdiction are exceptional and must satisfy the requirements specified in Bell v. Hood, 4 327 U.S. 678 (1946).” Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004) 5 (quoting Sun Valley Gas., Inc. v. Ernst Enters., 711 F.2d 138, 140 (9th Cir. 1983). In Bell, 6 the Supreme Court instructed that “a suit may sometimes be dismissed for want of 7 jurisdiction where the alleged claim under the Constitution or federal statutes clearly 8 appears to be immaterial and made solely for the purpose of obtaining jurisdiction or where 9 such a claim is wholly insubstantial and frivolous.” Bell, 327 U.S. at 682–83. 10 The Estate Plaintiffs have not shown that the rare dismissal of a case in which the 11 Court has federal-question jurisdiction is warranted here. See id. First, nowhere in their 12 opening brief or reply do the Estate Plaintiffs mention the Bell standard.1 (Doc. Nos. 8, 13 15.) Second, the Court finds their allegations that Defendants engaged in gamesmanship 14 by conspiring with counsel for the Kimone Plaintiffs to “get the Family’s Case in federal 15 court” unpersuasive. (Doc. No. 15 at 5.) The record does not support a finding that 16 Defendants improperly manipulated removal of this action. 17 As the Estate Plaintiffs concede, they chose not to oppose Defendants’ motion to 18 consolidate their case with the Kimone matter. (Doc. No. 8 at 6.) Had they opposed 19 consolidation, Defendants would have had no basis to remove their case to federal court. 20 (Id.) Considering that the Estate Plaintiffs had the opportunity, but neglected to oppose 21 consolidation and prevent removal, the Court finds their accusations of gamesmanship 22 unavailing.2 Additionally, there is no indication that the federal civil rights claims raised 23 1 The Court notes that because there has been no dismissal of the federal claims in this case, the Estate 24 Plaintiffs’ request for the Court to deny exercising pendent jurisdiction over their state claims is 25 inappropriate at this time. See Harrell v. 20th Century Ins. Co., 934 F.2d 203, 205 (9th Cir. 1991) (noting that the district court has discretion to adjudicate pendent state claims following final disposition of all 26 federal claims).

27 2 Indeed, counsel for the Estate Plaintiffs admitted that he did not read past the motion’s opening caption and first few paragraphs, and that had he read the paragraph about the Kimone matter including causes of 28 1 this action are immaterial or wholly insubstantial and frivolous. See Bell, 327 U.S. at 2 ||682—83. Thus, the Court does not find this case to be exceptional and warranting a rare 3 ||remand under Bell. 4 CONCLUSION 5 Accordingly, for the foregoing reasons, the Court DENIES the motion to remand 6 ||(Doc. No. 8) and VACATES the previously scheduled motion hearing on December 23, 7 ||2021. Having vacated the motion hearing date and denied the motion to remand, the Court 8 || DENIES AS MOOT the ex parte motion to shorten time for motion hearing. (Doc. No. 9 Lastly, for completeness of the record and judicial efficiency, the Court ORDERS 10 || Defendants to file, no later than noon on Tuesday, November 23, 2021, the answers to the 11 || operative complaints in this case.* 12 IT IS SO ORDERED. 13 || Dated: November 19, 2021 © ¢ 14 Hon. Anthony J.Battaglia 15 United States District Judge 16 17 18 19 20 21 22 23 24 25 26 || ——W___—__ > For ease of document identification and reference, the Court instructs the parties that future filings of 27 || document exhibits MUST be filed as separate attachments to a main document identifying the exhibits 3g || attached. The parties are discouraged from filing several exhibits as one composite document. Such filings are onerous to sift through and do no favors for judicial efficiency.