United States District Court, S.D. Alabama, Southern Division
K. DuBOSE CHIEF UNITED STATES DISTRICT JUDGE.
matter is before the Court on the parties' Joint Motion
to Remand (Doc. 11), the Defendants' motion to dismiss
(Docs. 2, 3), and Plaintiff's Amended Complaint (Doc.
December 14, 2018, Plaintiff initiated this action in the
Circuit Court of Baldwin County, Alabama by filing a
"Notice of Appeal, Complaint, Request for Declaratory,
Injunctive, and Mandamus Relief, and Demand for Jury
Trial." (Doc. 1-1). Stemming from the Defendants'
denial of Plaintiff's building permit related to the
placement of signage (advertising/billboard) in Baldwin
County, Alabama, Plaintiff alleged four (4) counts: 1) Count
One - an appeal of the building permit denial; 2) Count Two -
a declaratory judgment claim; 3) Count Three - a procedural
due process claim; and 4) Count Four - mandamus
relief. (Doc. 1-1 at 7-22).
January 17, 2019, the Defendants removed this action on the
basis of federal question jurisdiction, pursuant to 28 U.S.C.
§ 1441, as Plaintiff's Complaint included a claim
for due process rights violations (42 U.S.C. § 1983).
Defendants' notice of removal requested that the Court
exercise supplemental jurisdiction over Plaintiff's state
law claims pursuant to 28 U.S.C. § 1367. On January 24,
2019, the Defendants moved to dismiss the case per Rule
12(b)(1) and Rule 12(b)(6), which remains pending. (Docs. 2,
3). On February 13, 2019, Plaintiff filed an Amended
Complaint which no longer includes the federal claim. (Doc.
initial matter, Rule 15(a)(1)(A)-(B) of the Federal Rules
of Civil Procedure provides that a party may amend its
pleading “once as a matter of course” within 21
days after serving it; or “if the pleading is one to
which a responsive pleading is required, 21 days after
service of a responsive pleading or 21 days after service
of a motion under Rule 12(b), (e), or (f), whichever is
earlier.” Fed.R.Civ.Proc. Rule 15(a) (emphasis added).
Plaintiff's post-removal Amended Complaint was filed as a
matter of course under Rule 15(a)(1)(B) because the
Defendants have not yet filed a responsive pleading and the
Amended Complaint was was filed within 21 days after service
of the Defendants' Rule 12(b) motion to dismiss. The
result is that Amended Complaint (Doc. 10)
SUPERSEDES the original complaint (Doc. 1-1)
and is now the operative complaint. See,
e.g., Pintando v. Miami-Dade Hous. Agency,
501 F.3d 1241, 1243 (11th Cir. 2007) (quoting
Dresdner Bank AG, Dresdner Bank AG in Hamburg v. M/V
OLYMPIA VOYAGER, 463 F.3d 1210, 1215 (11th
Cir.2006) (citation and quotation omitted)). See also
generally Smith v. West Facilities Corp., 2005 WL
1785224, *1-2 (S.D. Ala. Jul. 26, 2005). Additionally, the
operative effect of the Amended Complaint (Doc. 10) is to
MOOT the Defendants' motion to dismiss,
as such is directed to the allegations and claims in the
original complaint. See, e.g., DeSisto
College, Inc. v. Line, 888 F.2d 755, 757-758 (11th Cir.
1989) (affirming the denial as moot of a defendant's
motion to dismiss a first amended complaint because the
plaintiff filed a second amended complaint).
that clarification, the Court turns to the parties' Joint
Motion to Remand. This Court had original jurisdiction under
28 U.S.C. § 1331 (federal question) over Count Three of
the original complaint and exercised supplemental
jurisdiction under 28 U.S.C. § 1367(a) over the
remaining state law counts. Plaintiff's Amended Complaint
no longer includes the federal question claim (originally
Count Three), leaving only state law claims, thus prompting
the parties' joint request to remand this case to state
district court's removal jurisdiction is determined at
the time of removal, and ‘events occurring after
removal...do not oust the district court's
jurisdiction.'" Smith v. Wynfield Dev. Co.,
Inc., 238 Fed.Appx. 451, 455 (11th Cir. 2007)
(quoting Poore v. Am.-Amicable Life Ins. Co. of
Texas, 218 F.3d 1287, 1290-1291 (11th Cir.
2000)). As such, "when a defendant removes a case to
federal court based on the presence of a federal claim, an
amendment eliminating the original basis for federal
jurisdiction generally does not defeat jurisdiction.”
Rockwell Int'l Corp. v. United States, 549 U.S.
457, 474 n. 6 (2007). See also Nelson v. Whirlpool
Corp., 727 F.Supp.2d 1294, 1301 (S.D.Ala.2010). At that
juncture, “[t]he court ha[s] discretion to retain
jurisdiction over the state law claims even after [the
plaintiff] amend[s] the complaint to remove any federal cause
of action.” Behlen v. Merrill Lynch, 311 F.3d
1087, 1095 (11th Cir.2002). However, per Section
1367(c)(3), the court "may decline to exercise
supplemental jurisdiction over a claim under subsection (a)
if...the district court has dismissed all claims over which
it has original jurisdiction”). Moreover, generally,
in the Eleventh Circuit, district courts have been instructed
that “if the federal claims are dismissed prior to
trial, Gibbs strongly encourages or even requires
dismissal of state claims[.]” L.A. Draper & Son
v. Wheelabrator-Frye, Inc., 735 F.2d 414, 428
(11th Cir. 1984) (referencing United Mine
Workers of America v. Gibbs, 383 U.S. 715, 726-727
(1966)). See also e.g., Raney v. Allstate Ins.
Co., 370 F.3d 1086, 1089 (11th Cir. 2004)
(“encourage[ing] district courts to dismiss any
remaining state claims when...the federal claims have been
dismissed prior to trial”). Specific to a removal
scenario, the Eleventh Circuit instructs that "federal
district courts in removal cases must remand, rather than
dismiss, state claims over which they decline to exercise
supplemental jurisdiction...”). Myers v. Cent. Fla.
Invs., Inc., 592 F.3d 1201, 1226 (11th Cir. 2010).
explained in Garcia v. Cullen, 2012 WL 1988131, *1-3
(M.D. Fla. May 14, 2012):
The Court looks to the claims in the operative complaint at
the time of removal, and in this case, federal question
jurisdiction did exist at that time….the Court
considers whether to retain jurisdiction in light of 28
U.S.C. § 1367(c)(3) which allows remand to the state
court where the federal claim from the original complaint has
been eliminated by the amended complaint. 28 U.S.C. §
1367(c)(3) (“The district courts may decline to
exercise supplemental jurisdiction over a claim under
subsection (a) if ... (3) the district court has dismissed
all claims over which it has original jurisdiction.”).
The Court may decline to continue its exercise of
supplemental jurisdiction where Plaintiffs have dismissed the
federal claims because “no basis for federal
jurisdiction presently exists.” … “In
making this decision, the court ‘should take into
account concerns of comity, judicial economy, convenience,
fairness, and the like.'”….
Other district courts in the Eleventh Circuit have held that
remand is appropriate pursuant to § 1367 when a case is,
as here, in the earliest stages. See, e.g., Shelley v.
City of Headland, ….2009 WL 2171898 (M.D.Ala.
July 21, 2009) (remanding case in which plaintiff amended
very early in the pleadings and the only remaining claim was
a state-law constitutional claim involving a city zoning
ordinance); see also Lake County v. NRG/Recovery Group,
Inc., 144 F.Supp.2d 1316, 1319 (M.D.Fla.2001) (remanding
case because the case and discovery were in the very early
stages and comity weighed in favor of remand among other
factors). Here, the case was just removed. The parties have
not filed the Case Management Report, no answer or other
responsive pleading has been filed, and no discovery has
begun. Under these circumstances, there is no compelling
reason to retain the case. See Carnegie-Mellon, 484
U.S. at 351…(holding that “[w]hen the single
federal law claim in the action [is] eliminated at an early
stage of the litigation, the district court [has] a powerful
reason to choose not to continue to exercise
jurisdiction”); Baggett v. First Nat. Bank of
Gainesville, 117 F.3d 1342, 1353 (11th Cir.1997)
(“‘When federal law claims have dropped out of
the lawsuit in its early stages and only state-law claims
remain, the federal court should decline the exercise of
jurisdiction, '” quoting Carnegie-Mellon
Univ., 484 U.S. 343…)); Shelley v. City
of Headland, …2009 WL 2171898 (M.D.Ala.
July 21, 2009) (remanding where plaintiff amended very early
in the pleadings)……
See also generally Shelley v. City of Headland, 2009
WL 2171898 (M.D. Ala. Jul. 21, 2009) (detailed discussion of
remanding and declining to exercise supplemental
balancing the relevant factors: this case is in the earliest
stages (having been filed less than one (1) month ago in
federal court); there is no apparent judicial economy in
having this Court retain the case; comity concerns weigh in
favor of remand as only state law issues remain which are
ideally decided by the state court; and there are no apparent
inconvenience concerns among the parties due to the
parties' joint remand request. As a result, the court
declines to exercise supplemental jurisdiction over
Plaintiff's remaining state law claims.
it is ORDERED that the Amended Complaint
SUPERSEDES the original complaint, the
Motion to Dismiss is MOOT, and the
parties' joint motion to remand is
GRANTED such that this action is hereby
REMANDED to the Circuit Court of Baldwin
County, Alabama from whence it came.
provided in Rule 58 of the Federal Rules of Civil
Procedure, a Final Judgment shall issue