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Hammerman & Gainer, Inc. v. City of New Orleans

United States District Court, E.D. Louisiana

May 23, 2017


         SECTION: “H” (2)



         Before the Court is Plaintiff's Motion to Remand. For the following reasons, this Motion is GRANTED. The matter is REMANDED to the Civil District Court for the Parish of Orleans.


         This suit stems from a Request for Proposals (“RFP”) for selection of a Workers' Compensation Claims Administrator issued by Defendant the City of New Orleans (the “City”) in November 2016. Plaintiff Hammerman & Gainer, Inc. (“HGI”) was the incumbent bidder on the contract; however, the City's selection committee selected a proposal submitted by Defendant CorVel Enterprise Comp, Inc. (“CorVel”) as the winning bidder. HGI filed a protest with the City averring that it misapplied provisions relative to Disadvantaged Business Entities in the RFP. The City rejected this protest, and HGI filed suit in the Civil District Court for the Parish of Orleans on April 7, 2017. Therein, Plaintiff asserted claims that (1) the City violated its own laws and procedures in failing to properly follow selection criteria in handling the RFP and (2) that Defendant Adolph Delaparte violated 42 U.S.C. § 1983 by making false statements regarding HGI's application to deprive it of its Constitutional rights. Plaintiff subsequently amended its Petition to assert a state law tort claim against CorVel. Following substantial proceedings in state court, the City removed the action to this Court on May 8, 2017, citing the Court's federal question jurisdiction based on the § 1983 claim. Plaintiff immediately moved for a temporary restraining order, which this Court denied. Plaintiff then voluntarily dismissed his § 1983 claim against Delaparte. This Motion to Remand follows.


         Generally, a defendant may remove a civil state court action to federal court if the federal court has original jurisdiction over the action.[1] The burden is on the removing party to show “[t]hat federal jurisdiction exists and that removal was proper.”[2] When determining whether federal jurisdiction exists, courts consider “[t]he claims in the state court petition as they existed at the time of removal.”[3] “In making a jurisdictional assessment, a federal court is not limited to the pleadings; it may look to any record evidence, and may receive affidavits, deposition testimony or live testimony concerning the facts underlying the citizenship of the parties.”[4] Removal statutes should be strictly construed, and any doubt should be resolved in favor of remand.[5]


         Plaintiff has filed the instant Motion to Remand, arguing that the dismissal of the § 1983 claim against Defendant Delaparte deprives the Court of jurisdiction and necessitates remand. Defendants respond in opposition, arguing (1) removal was proper because the federal question claims existed at the time of removal; (2) that a federal claim remains pending despite dismissal of the § 1983 claim against Delaparte; (3) even if the federal claims are dismissed, the Court should exercise its discretion and retain supplemental jurisdiction over the remaining state law claims. The Court will address these arguments in turn.

         I. Propriety of Original Removal

         Defendants contend that Plaintiff's subsequent dismissal of the claims within the Court's original jurisdiction does not by itself warrant remand. This contention is correct. “[J]urisdictional facts are determined at the time of removal, and consequently post-removal events do not affect that properly established jurisdiction.”[6] It appears undisputed that, at the time of removal, Plaintiff asserted a § 1983 claim against Defendant Delaparte. Accordingly, removal of this action was appropriate.

         II. Whether Federal Question Claims Remain

         Defendants next contend that remand is inappropriate because federal question claims remain despite Plaintiff's dismissal of the § 1983 claims against Delaparte. In support of this contention, they point to (1) Plaintiff's allegation that the City deprived them of a “federally-protected property right” and (2) Plaintiff's respondeat superior claims against the City based on Delaparte's conduct. The Court perceives no such federal claim. “Where removal jurisdiction is predicated on the existence of a federal question, the federal question generally must appear on the face of the plaintiff's complaint.”[7] Though Plaintiff does allege that it holds a federally protected property right, this, standing alone, is insufficient to state a claim for violation of federal law. “The Fourteenth Amendment also requires that the plaintiff, in order to establish a constitutional violation, prove that the deprivation of the property right occurred without due process of law.”[8] The Petition contains no such allegation. Indeed, the Fifth Circuit has held, in the context of bidding on public contracts, that due process requirements are satisfied by the availability of relief via a state-court injunction.[9] Plaintiff was seeking just such relief when this action was removed. Accordingly, because there is no allegation in the Petition that the available process is in any way deficient, there is no federal question claim.

         Defendants' argument relative to the City's respondeat superior liability also fails. Plaintiff's Petition alleged that “the City of New Orleans is responsible for the actions of its employee and agent, Adolph Delaparte under the legal theory of Respondeat Superior.” Notwithstanding the fact that respondeat superior liability is inapplicable in § 1983 cases, [10] any such claims against the City would be premised on a finding of liability on the part of Delaparte. Such a finding is precluded by the dismissal of the claims ...

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