United States District Court, D. Nebraska
MEMORANDUM AND ORDER
M. Gerrard United States District Judge.
matter is before the Court on the plaintiff's motion for
leave to amend her complaint (filing 7) and motion to remand
(filing 8). For the reasons that follow, the Court finds that
the plaintiff can amend her complaint as a matter of
right-so, the Court will permit the filing of her amended
complaint and, exercising its discretion to decline
supplemental jurisdiction, will grant her motion to remand
her remaining claims to state court.
Court finds that the plaintiff may amend her complaint for
two reasons. First, Fed.R.Civ.P. 15(a)(1) permits a plaintiff
to amend her pleading once within "21 days after serving
it" or 21 days after service of a Fed.R.Civ.P. 12(b)
motion. In this case, according to the pleadings and notice
of removal, the plaintiff filed her initial complaint on July
29, 2019 and an amended complaint on July 30, and then served
process on August 1. Filing 1 at 1; see filing 1-2;
filing 1-2. So, although the plaintiff has filed an amended
complaint, she did not do so within 21 days after
serving it, or 21 days after service of the
defendant's Rule 12(b) motion. The plain text of Rule
15(a)(1) permits one amendment "as a matter of
course" after the earlier of those events.
although the plaintiff also wants to amend her pleading to
correct the caption, the primary purpose of the amended
complaint is the dismissal of the plaintiff's federal
claim-and that, she has the right to do pursuant to
Fed.R.Civ.P. 41(a)(1)(A)(i), which permits dismissal without
a court order "before the opposing party serves either
an answer or a motion for summary judgment."
See Stamm v. Cty. of Cheyenne, Nebraska,
326 F.Supp.3d 832, 845 (D. Neb. 2018); cf.
Johnston v. Cartwright, 355 F.2d 32, 39 (8th Cir.
1966). "[I]t should be clear that so long as defendant
has not filed a responsive pleading, plaintiff has an
absolute right to file an amended complaint that omits some
of the claims that were in the original complaint and that no
prejudice attaches to the omission of those claims[.]"
21 Charles Alan Wright & Arthur R. Miller et
al., Federal Practice & Procedure, §
1479 (3d ed. 2010 & Supp. 2019). In this case, while the
defendant has filed a motion to dismiss, neither an answer
nor a motion for summary judgment have been filed-so, Rule
41(a)(1)(A)(i) permits the plaintiff to voluntarily dismiss a
because the gravamen of the plaintiff's amendment is the
voluntary dismissal of her federal claim, the Court will
permit the filing of her amended complaint. That leaves her
state law claims, over which the Court could still
exercise supplemental jurisdiction. See 28 U.S.C.
§ 1367(a) and (c)(3); Carlsbad Tech., Inc. v. HIF
Bio, Inc., 556 U.S. 635, 639-40 (2009). But the Court can
also remand those claims to state court. See §
1367(c)(3); Carnegie-Mellon Univ. v. Cohill, 484
U.S. 343, 357 (1988). The Court has "broad discretion in
determining whether to exercise supplemental jurisdiction[,
]" Crest Const. II, Inv. v. Doe, 660 F.3d 346,
359 (8th Cir. 2011), and, in fact, where "resolution of
the remaining claims depends solely on a determination of
state law, the Court should decline to exercise
jurisdiction." Glorvigen v. Cirrus Design
Corp., 581 F.3d 737, 749 (8th Cir. 2009) (emphasis
supplied) (quotation and citations omitted).
making that determination, the Court must consider factors
such as judicial economy, convenience, fairness, and comity.
Id.; see Wilson v. Miller, 821
F.3d 963, 970 (8th Cir. 2016). But "[i]n the usual case
in which all federal-law claims are eliminated before trial,
the balance of factors to be considered under the pendent
jurisdiction doctrine will point toward declining to exercise
jurisdiction over the remaining state-law claims."
Wilson, 821 F.3d at 971; Williams v. Hobbs,
658 F.3d 842, 853 (8th Cir. 2011) (quotation and citations
omitted). The Court finds no factor that distinguishes this
case from the usual case. See Wilson, 821
F.3d at 971. In fact, the "novel and complex
question" of whether discrimination on the basis of
sexual orientation is actionable under Nebraska state law
should be decided by a Nebraska state court. See
EEOC v. Con-Way Freight, Inc., 622 F.3d 933, 938
(8th Cir. 2010). Accordingly, the Court will decline
supplemental jurisdiction, and will remand the
plaintiff's state-law claims.
plaintiff's motion for leave to amend her complaint
(filing 7) is granted.
plaintiffs second amended complaint (filing 7-1) is hereby
defendant's motion to dismiss (filing 4) is denied as
moot, without prejudice to reassertion.
plaintiffs motion to remand (filing 8) is granted.
case is remanded to the District Court of Johnson County,