Gaylord v. Spartan College of Aeronautics & Technology, LLC

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF OKLAHOMA

NANETTE GAYLORD, an Individual, )

)

Plaintiff, )

)

v. ) Case No. 16-CV-461-JED-JFJ

)

SPARTAN COLLEGE OF )

AERONAUTICS & TECHNOLOGY, )

LLC, a Foreign Limited Liability )

Company; and JANUS ABCZYNSKI, )

an Individual, )

)

Defendants. )

OPINION AND ORDER

I. Background

Plaintiff has worked in the aviation industry for more than four decades and was appointed

as a Designated Pilot Examiner (DPE) by the Oklahoma City Flight Standards District Office on

January 12, 1989. DPEs are designees of the Federal Aviation Administration (FAA), appointed

pursuant to 49 U.S.C. § 44702(d) and 14 C.F.R. § 183.23, and are authorized to examine and

evaluate prospective applicants for pilot’s certificates or for ratings on existing pilot’s certificates.

Plaintiff passed examinations by the FAA at least fifty times between her appointment and August

21, 2014.

On October 24, 2013, the Will Rogers Flight Standards District Office (WR FSDO) asked

Plaintiff to perform a number of “check-rides” that WR FSDO was unable to perform during a

federal government furlough. A “check-ride” is an evaluation flight to determine whether an

applicant will be awarded a pilot’s certificate or a particular rating on an existing pilot’s certificate.

Plaintiff agreed to WR FSDO’s request and alleges that she performed approximately eighty-one

check-rides in addition to those scheduled through her own private business. Plaintiff gave failing

grades to the majority of the eighty-one applicants, including a majority of those who were students

of Defendant Spartan Education, L.L.C. (Spartan).1

On August 21, 2014, Randy Burke, an FAA Aviation Safety Investigator, informed

Plaintiff that her status as a DPE was under investigation and instructed Plaintiff to cease pilot

examinations. Burke was the FAA’s Principal Operations Inspector overseeing Spartan at the time

and is a graduate of Spartan. Burke led the FAA’s investigation of Plaintiff. On September 15,

2014, the FAA terminated Plaintiff’s DPE appointment. Plaintiff appealed but was unsuccessful.

Plaintiff filed this action in the District Court for Tulsa County, Oklahoma, asserting tort

claims against Burke, Spartan, and defendant Janusz Abczynski, a flight instructor employed by

Spartan. Plaintiff’s petition alleges that the defendants (1) maliciously and wrongfully interfered

with her business and her reputation within the aviation industry by making false accusations about

her performance as a DPE in order to instigate a fraudulent investigation designed to terminate her

DPE; (2) made false statements concerning Plaintiff’s abilities in her role as a DPE; and (3)

conspired to defame Plaintiff and to wrongfully and maliciously interfere with her business as a

DPE. Plaintiff alleges that Spartan was seeking approval for in-house examination privileges,

which require certain passage rates. She alleges that her check-ride evaluations were accurate but

harmed Spartan’s attempts to achieve the required passage rates.

Burke removed the action to this Court, citing original jurisdiction pursuant to 28 U.S.C. §

1331, and removal jurisdiction pursuant to 28 U.S.C. § 1442(a), which governs removal of an

action by a federal officer. Plaintiff subsequently dismissed Burke from the proceeding and filed

a motion to remand for lack of subject-matter jurisdiction. (Doc. 5). The remaining defendants,

1 According to Spartan, it is incorrectly designated as Spartan College of Aeronautics &

Technology, LLC in Plaintiff’s petition.

Spartan and Abczynski (hereinafter referred to as Defendants), filed notices of consent to removal

and a brief in opposition to Plaintiff’s motion to remand. Defendants also filed a motion to dismiss

Plaintiff’s petition pursuant to Fed. R. Civ. P. 12(b)(6). (Doc. 11).

II. Motion to Remand

Plaintiff contends the federal officer removal statute provided the only proper grounds for

removal of this action, and that Burke’s dismissal from the case eliminates the basis for federal

subject-matter jurisdiction.2 However, Burke’s notice of removal also invoked the Court’s original

jurisdiction pursuant to § 1331, and Defendants contend that Plaintiff’s petition presents a

substantial federal question conferring original subject-matter jurisdiction. Defendants also

contend that Abczynski is entitled to removal as a federal officer, pursuant to § 1442(a).

A. Substantial Federal Question Jurisdiction

Under § 1331, the federal district courts have “original jurisdiction of all civil actions

arising under the Constitution, laws, or treaties of the United States.” A case “arises under” federal

law when a “well-pleaded complaint establishes either that federal law creates the cause of action

or that the plaintiff's right to relief necessarily depends on resolution of a substantial question of

federal law.” Gilmore v. Weatherford, 694 F.3d 1160, 1170 (10th Cir. 2012) (citing Empire

Healthchoice Assurance, Inc. v. McVeigh, 547 U.S. 677, 690, 126 S.Ct. 2121, 165 L.Ed.2d 131

(2006)). The removing party bears the burden of establishing the existence of federal subject-

matter jurisdiction. See Baby C v. Price, 138 F. App’x 81, 83 (10th Cir. 2005) (citing McNutt v.

Gen. Motors Acceptance Corp., 298 U.S. 178, 189 (1936)).

2 Defendants do not contest that the requirements for diversity jurisdiction under 28 U.S.C. §

1332 are not satisfied here.

Defendants characterize Plaintiff’s tort claims as a “backdoor” challenge to the FAA’s

decision to terminate Plaintiff’s DPE and contend that her petition raises a “substantial federal

question” establishing federal jurisdiction, as set forth in Grable & Sons Metal Prods., Inc. v.

Darue Eng’g & Mfg., 545 U.S. 308 (2005). In addition, Defendants argue that individual elements

of Plaintiff’s claims require the application of federal law. For example, to prove her claim for

tortious interference with business relations, Plaintiff must show that she possessed a right to

maintain her DPE, which is governed by federal law, and must prove Defendants wrongfully

caused the FAA to terminate her DPE.3 Similarly, Plaintiff’s defamation claim requires proof of

a false and defamatory statement, which Defendants contend requires an evaluation of Defendants’

obligations under FAA rules to report suspected violations and participate in investigations.4

Defendants also contend that to establish causation on all of Plaintiff’s tort claims will require

“litigating the FAA’s investigation and decision-making.” (Doc. 13 at 9). Finally, they contend

that because Plaintiff must show damages were proximately caused by Defendants, her claims

cannot be “extricated” from the FAA’s investigation and decision. (Id. at 10).

The boundaries of “substantial federal question” jurisdiction are “exceedingly narrow—a

‘special and small category’ of cases.” Gilmore, 694 F.3d at 1171 (quoting Empire, 547 U.S. at

699). The ‘mere need to apply federal law in a state-law claim’ will not ‘suffice to open the arising

3 To establish tortious interference with business relations under Oklahoma law, a plaintiff must

show (1) interference with an existing contractual or business right; (2) such interference was

malicious and wrongful; (3) the interference was neither justified, privileged, nor excusable; and

(4) the interference proximately caused damage. Wilspec Techs., Inc. v. DunAn Holding Grp.,

Co., 204 P.3d 69, 74 (Okla. 2009).

4 Mitchell v. Griffin Television, L.L.C., 60 P.3d 1058, 1061 (Okla. Civ. App. 2002), cited by

Defendants, sets out the elements of defamation under Oklahoma law: (1) a false and defamatory

statement, (2) an unprivileged publication to a third party, (3) fault amounting at least to

negligence, and (4) either the existence of special damage caused by the publication or the

actionability of the statement irrespective of special damage.

under door.’” Id. (quoting Grable, 545 U.S. at 313). Rather, to invoke “substantial federal

question” jurisdiction, a party “‘must show that a federal issue is: (1) necessarily raised, (2)

actually disputed, (3) substantial, and (4) capable of resolution in federal court without disrupting

the federal-state balance approved by Congress.’” Becker v. Ute Indian Tribe of the Uintah, 770

F.3d 944, 947 (10th Cir. 2014) (citing Gunn v. Minton, 568 U.S. 251, 258 (2013)).

Plaintiff contends that Defendants have failed to identify any specific federal issues that

are necessarily raised by her claims and are in dispute. However, the focus of both parties’ briefing

is on the third and fourth requirements set forth in Gunn. Therefore, the Court will assume, without

deciding, that Defendants can satisfy the first two requirements and will proceed directly to the

issue of substantiality.

Under Grable, substantiality requires “a serious federal interest in claiming the advantages

thought to be inherent in a federal forum.” Gilmore, 694 F.3d at 1171 (citing Grable, 545 U.S. at

313). “The substantiality inquiry under Grable looks . . . to the importance of the issue to the

federal system as a whole,” rather than its significance to the parties in the immediate case. Gunn,

568 U.S. at 260. In Grable, the Internal Revenue Service (IRS) seized real property belonging to

the plaintiff to satisfy a federal tax debt. The plaintiff received notice of the seizure by certified

mail and did not exercise its statutory right to redeem the property within 180 days before the IRS

sold the property and granted a quitclaim deed to the buyer. The plaintiff later brought a quiet title

action in state court, arguing that the buyer’s record title was invalid because the IRS had failed to

notify plaintiff of the seizure of his property by personal service, which plaintiff argued was

required under the applicable federal statute. The Supreme Court held that the quiet title claim

raised an issue of federal law sufficiently substantial to confer federal jurisdiction, noting that

whether the notice given to the plaintiff satisfied the statute was “an essential element of its quiet

title claim, and the meaning of the federal statute is actually in dispute; it appears to be the only

legal or factual issue contested in the case.” Grable, 545 U.S. at 315. The Court concluded that

“[t]he meaning of the federal tax provision is an important issue of federal law that sensibly

belongs in a federal court,” noting the government’s strong interest in satisfying its claims against

delinquent taxpayers promptly and with certainty. Id. The Court further noted that state title cases

raising a similar issue of federal law would be rare and removal would therefore have “only a

microscopic effect on the federal-state division of labor.” Id.

The Court finds Grable inapposite here. Plaintiff’s claims do not raise federal issues

comparable to the construction of the statutory notice provision at issue there. Instead, Empire, a

subsequent case applying Grable, is more relevant. In Empire, a deceased federal employee’s

estate had recovered a settlement in state court with third parties alleged to have caused the

decedent’s injuries. The administrator of the decedent’s health care plan, which was offered

through his federal employer, sued the estate in federal court, seeking reimbursement of funds it

had paid under the health care plan for the decedent’s medical care. The United States, as amicus,

argued that the reimbursement claim fit within the “substantial federal question” doctrine because

the reimbursement provision at issue was governed by federal law. 547 U.S. at 699.

The Supreme Court rejected that argument, noting that “arising under” jurisdiction

represents a “special and small category.” Id. at 699. It noted that Grable “presented a nearly pure

issue of law, one that could be settled once and for all and thereafter would govern numerous tax

sale cases.” Id. In contrast, Empire’s reimbursement claim was “fact-bound and situation-

specific,” because the estate argued that various charges were excessive or duplicative and sought

a determination of whether certain services were properly attributed to injuries from the subject

accident. Id. at 700-701. Despite the federal government’s “overwhelming interest in attracting

able workers to the federal workforce, and in the health and welfare of the federal workers upon

whom it relies to carry out its functions,” the Court concluded that “those interests do not warrant

turning into a discrete and costly ‘federal case’ an insurer’s contract-derived claim to be

reimbursed from the proceeds of a federal worker’s state-court-initiated tort litigation.” Id. at 700

(internal citation and quotation marks omitted).

Although Plaintiff’s petition alleges that there were deficiencies in the process leading to

the termination of her DPE, she has not asserted a claim for violation of her constitutional or federal

statutory rights; rather, her causes of action are state-law tort claims. In contrast to Grable, where

the federal statutory notice provision presented a “nearly pure issue of law,” any federal issues

here are limited to the specific, factual application of FAA regulations and procedures to the

Plaintiff, and therefore are “fact-bound and situation-specific.” Empire, 547 U.S. at 700-01; see

also Becker, 770 F.3d at 947 (“[T]he recognition of substantial question jurisdiction does not

‘disturb the long-settled understanding that the mere presence of a federal issue in a state cause of

action does not automatically confer federal-question jurisdiction.’”) (internal citations omitted);

cf. Gilmore, 694 F.3d at 1174 (noting that “[w]hether the Secretary must approve the disposition

of restricted Indian personalty is a legal question that does not appear to depend on the specific

facts of a case,” and that, as in Grable, the legal relationship between the parties turned on a federal

question). Defendants have not shown any issue implicating a “serious federal interest in claiming

the advantages thought to be inherent in a federal forum.” Gilmore, 694 F.3d at 1171.

Accordingly, the Court does not have subject-matter jurisdiction pursuant to § 1331.

The Court need not determine whether Plaintiff’s claims satisfy the first two requirements

set forth in Gunn, because there can be no “arising under” jurisdiction without a substantial federal

question. However, the Court also finds that Defendants have not identified any federal issue that

is “capable of resolution in federal court without disrupting the federal-state balance approved by

Congress.” Becker, 770 F.3d at 947. Defendants argue that “uniformity in interpretation of FAA

orders is critical and can be achieved only in a federal forum.” (Doc. 13 at 10). However, there

is no dispute here as to the construction of a federal statute, in contrast to Grable, nor have

Defendants identified any FAA regulation or order whose meaning is in dispute. The fact that

elements of Plaintiff’s tort claims may depend on federal law does not by itself warrant a federal

forum. See Empire, 547 U.S. at 701 (noting that while reimbursement claim may involve federal

issue of whether attorney’s fees should be included, “it is hardly apparent why a proper ‘federal-

state balance’ would place such a nonstatutory issue under the complete governance of federal law,

to be declared in a federal forum. The state court in which the personal-injury suit was lodged is

competent to apply federal law, to the extent it is relevant”). The failure to satisfy this requirement

independently precludes the exercise of “arising under” subject-matter jurisdiction.

B. Federal Officer Removal Jurisdiction

Defendants contend that remand would be improper because Abczynski is entitled to

removal in his capacity as a DPE. Under § 1442(a),

A civil action or criminal prosecution commenced in a State court against any of the

following may be removed by them to the district court of the United States for the district

and division embracing the place wherein it is pending:

(1) The United States or any agency thereof or any officer (or any person acting under that

officer) of the United States or of any agency thereof, sued in an official or individual

capacity for any act under color of such office.

28 U.S.C. § 1442(a) (2018). The federal officer removal statute is to be “liberally construed to

give full effect to the purposes for which [it was] enacted,” Durham v. Lockheed Martin Corp.,

445 F.3d 1247 (9th Cir. 2006) (citing Colorado v. Symes, 286 U.S. 510, 518 (1932)), and the “right

of removal is absolute for conduct performed under color of federal office,” Arizona v. Manypenny,

451 U.S. 232, 242 (1981).

Delegees of the FAA may invoke the federal officer removal statute. See Magnin v.

Teledyne Cont’l Motors, Inc., 91 F.3d 1424 (11th Cir. 1996).5 To satisfy the requirements of §

1442(a), a non-governmental defendant such as Abczynski must show that (1) he is a “person”

within the meaning of the statute; (2) he was “acting under” a federal officer when engaged in at

least some of the conduct alleged in the complaint; and (3) he has a “colorable federal defense” to

the claims. In re Methyl Tertiary Butyl Ether Prods. Liab. Litig., 488 F.3d 112, 134 (2d Cir. 2007).

Plaintiff does not clearly dispute whether Abczynski qualifies as a “person” within the meaning of

§ 1442(a), and the Court therefore will assume, without deciding, that Abczynski’s position as a

DPE satisfies the first requirement. However, Plaintiff contends Abczynski cannot satisfy the

requirement that he was “acting under” a federal officer when engaged in the alleged tortious

conduct.

To satisfy the “color of office” requirement under § 1442(a)(1), a defendant must establish

“a ‘causal connection’ between the charged conduct and asserted official authority.” Willingham

v. Morgan, 395 U.S. 402, 409 (1969) (citing Maryland v. Soper (No. 1), 270 U.S. 9, 33 (1926)).

The requirements of a “causal connection” and that a non-governmental defendant was “acting

under” a federal officer “tend to collapse into a single requirement: that ‘the acts that form the

basis for the state or criminal suit were performed pursuant to an officer’s direct orders or to

comprehensive and detailed regulations.’” In re Methyl Tertiary Butyl Ether Prods. Liab. Litig.,

488 F.3d at 124 (internal citation omitted). “Critical under the statute is to what extent defendants

acted under federal direction at the time they were engaged in the conduct now being sued upon.

5 Case law applying § 1442(a) to FAA delegees is relatively sparse. See generally Fred J. Meier

et al., Federal Officer Removal: Watson Would Fly with FAA Designees, 72 J. Air. L. & Com.

485, 512-16 (2007).

Removal will not be proper where a private party establishes only that the acts complained of were

performed under the ‘general auspices’ of a federal officer.” Id. (internal citations omitted).

In Willingham, a prisoner sued the warden and chief medical officer of a federal prison,

alleging various injuries. The defendants removed the case pursuant to § 1442(a). The warden

submitted an affidavit stating that his only contact with the plaintiff was inside the prison and in

the performance of his official duties as warden. Similarly, the chief medical officer filed an

affidavit stating that his only contact with respondent was at the prison hospital and was limited to

the performance of his official duties. Although the plaintiff argued the officers acted “on a frolic

of their own” unrelated to their official duties, his responsive affidavit did not deny either of the

officers’ statements. 395 U.S. at 407. The Court found it “sufficient for petitioners to have shown

that their relationship to respondent derived solely from their official duties.” Id. Defendants had

“sufficiently put in issue the questions of official justification and immunity,” and therefore had

satisfied the requirement of a “causal connection.” Id. at 409.

Unlike the defendants in Willingham, Abczynski has not provided any affidavit or other

evidence establishing a causal connection between his position as a DPE and the conduct alleged

in Plaintiff’s petition.6 Rather, Defendants assert that as a DPE, Abczynski “was a representative

6 In Willingham, the Supreme Court noted that a defendant seeking removal must file “a short

and plain statement of grounds for removal,” 28 U.S.C. § 1446(a), and that “‘the person seeking

the benefit of [the removal provisions] should be candid, specific and positive in explaining his

relation to the transaction’ which gave rise to the suit,” 395 U.S. at 408 (citing Maryland v. Soper

(No. 1), 270 U.S. at 35). The Court held that the affidavits submitted with the federal officers’

motion for summary judgment could be properly considered as part of the removal petition,

although they “should have appeared in the petition for removal.” Id. at 407 n.3. Because Burke

filed the notice of removal, Defendants did not have an opportunity to submit such a statement at

that point. However, Defendants cite Willingham in their opposition to Plaintiff’s motion to

remand, and could have included, or sought to include, an affidavit or other statement of grounds

for federal officer removal jurisdiction if they wished to do so.

and delegee of the FAA,” and contend in conclusory fashion that “[b]ased on the allegations in the

Petition, Abczynski was acting under delegated federal officer authority from the FAA when he

engaged in some or all of the acts alleged by Plaintiff.” (Doc. 13 at 14). Plaintiff denies that her

petition alleges Abczynski engaged in any tortious conduct in his role as a DPE or in service of

the FAA. Rather, she contends that Abczynski acted in service of Spartan.

The petition alleges that Abczynski and the other named defendants (1) made “false

accusations about [Plaintiff’s] performance as a DPE” in order to instigate a fraudulent

investigation designed to terminate her DPE, while “well-aware that Plaintiff made her living as a

DPE,” (Doc. 2-2 at ¶¶ 33-34); (2) made “false statements concerning Plaintiff’s abilities in her role

as a professional—namely, as a DPE,” id. at ¶ 38; and (3) conspired “to defame Plaintiff and to

wrongfully and maliciously interfere with her business as a DPE,” id. ¶ 43. After recounting the

FAA’s termination of Plaintiff’s DPE, Plaintiff’s petition makes the following additional

allegations that are relevant, or potentially relevant, to Abczynski:

24. Defendant Abczynski was appointed to administer check-rides as DPE for

Spartan students in Plaintiff’s absence. Defendant Abczynski was already

employed by Spartan as a flight instructor.

25. The passage rate of Spartan students drastically increased during Defendant

Abczynski’s time as DPE.

26. Defendant Abczynski was investigated in May of 2016 for sub-standard

practices as a DPE and ordered to undergo remedial instruction in order to preserve

his status as a DPE.

. . .

28. Numerous contacts within the aviation community in Oklahoma and the

surrounding states have contacted Plaintiff to inform her of statements made by

Spartan employees indicating that Spartan agents made false reports about Plaintiff

to the FAA.

29. One contact informed Plaintiff that Defendant Spartan’s Director of

Maintenance, Nathan Loberg, informed him that Spartan instigated the

investigation due to their displeasure with the number of their students who failed

check-ride evaluations with Plaintiff.

30. Yet another contact informed Plaintiff that Defendant Abczynski contacted him

to seek his assistance in instigating an FAA investigation into Plaintiff.

Id. ¶¶ 24-26.

It is undisputed that a DPE is authorized to examine and evaluate prospective or current

pilots in connection with their pilot’s certificate. But absent from these allegations is any

indication that Abczynski examined or evaluated Plaintiff in his capacity as a DPE, or that his

relationship with Plaintiff derived from his duties as a DPE. Nor does Plaintiff’s petition allege

that any false or defamatory statement was made respecting her performance as a pilot. Instead,

the petition repeatedly alleges that Defendants made false statements about her performance or

abilities as a DPE. Moreover, Defendants have not provided any authority or evidence that

Abczynski was responsible as a DPE for evaluating Plaintiff in any capacity.

The cases cited by Defendants underscore the lack of a causal connection in this case. In

Weidler v. Prof’l Aircraft Maint., the court denied a motion to remand an action for negligence

and products liability arising from an airplane crash. No. CV-10-9376, 2001 WL 2020654 (C.D.

Cal. May 13, 2011). Plaintiffs alleged that the defendants—including a corporation holding an

FAA Air Agency Certificate—acted negligently, carelessly, recklessly, wantonly, and unlawfully

regarding the airplane and its components. The court found that the corporation was acting

pursuant to its FAA certificate at all relevant times, noting that the relevant statute granted the

FAA power to delegate matters relating to examination, inspection, and certification of aircraft

components. Accordingly, in Weidler, the defendant’s alleged tortious conduct had a clear nexus

to the authority delegated to it by the FAA. Similarly, the plaintiff in Magnin alleged negligent

inspection, and wrongful certification of an aircraft’s engine as airworthy, against the FAA’s

designated manufacturing inspection representative for the engine. 91 F.3d 1424. The court cited

Willingham in finding removal jurisdiction was proper “because, at least in respect of Magnin’s

claim that Smith’s issuance of the certificate proximately caused the crash, Smith’s relationship to

the plaintiff ‘derived solely from [his] official duties.’” Id. at 1428 (citing Willingham, 395 U.S.

at 409). Here, Abczynski was authorized as a DPE to examine and evaluate prospective pilots.

However, there is no evidence that he was acting in that capacity toward Plaintiff at any time, and

therefore, the Court finds no basis to conclude that Abczynski’s relationship to Plaintiff with

respect to her tort allegations derived from his official duties as a DPE.

Defendants contend that Abczynski will assert in his defense that his conduct complied

with all applicable FAA regulations and standards, that he complied with his obligations as a

delegee, and that he was acting within the scope of his authority as a delegee with regard to the

conduct alleged by Plaintiff. Federal officer jurisdiction “is broad enough to cover all cases where

federal officers can raise a colorable defense arising out of their duty to enforce federal law.”

Willingham, 395 U.S. at 406-07. However, because Defendants have failed to “sufficiently put in

issue” a causal connection between plaintiff’s tort claims and Abczynski’s responsibilities as a

DPE, id. at 409, they cannot establish a colorable defense arising out of Abczynski’s duty to

enforce federal law. Accordingly, Abczynski is not entitled to removal as a federal officer.

C. Discretionary Retention of Federal Officer Jurisdiction

Defendants contend that the Court should exercise its discretion to retain the remaining

claims despite Burke’s dismissal. (Doc. 13 at 11 n.6). When a case is properly removed by a

federal officer pursuant to section 1442(a)(1), the statute “creates a species of ancillary jurisdiction

over the nonfederal elements of the case.” IMFC Prof’l Servs. of Fla., Inc. v. Latin Am. Home

Health Inc., 676 F.2d 152, 158 (5th Cir. 1982). If the federal officer is dismissed, “the district

court has a residual ancillary jurisdiction over the state law claims against the nonfederal

defendant. The district court may, in its discretion, decline to exercise this jurisdiction.” Williams

v. City of Atlanta, 794 F.2d 624, 628 (11th Cir. 1986) (citing IMFC Prof’l Servs. of Fla., 676 F.2d

at 160); Gabaldon v. N.M. Coal. to End Homelessness, No. CIV-17-0473, 2017 WL 3057668, at

*1 (D.N.M. May 30, 2017) (proposed findings and recommended disposition, adopted at 2017 WL

3057669) (quoting same); see also Carnett v. Watts, No. 15-CV-02437-RM-KMT, 2016 WL

705986, at *2 (D. Colo. Feb. 23, 2016) (“Upon the dismissal of the only basis for a federal court’s

subject matter jurisdiction, the court has discretion on whether to retain the action or remand the

action to state court.”). The considerations to be applied are comity, federalism, judicial economy,

and fairness to litigants. Torres v. CBS News, 879 F. Supp. 309, 321 (S.D.N.Y. 1995) (citing

District of Columbia v. Merit Sys. Protection Bd., 762 F.2d 129, 133 (D.C. Cir. 1985)).

The Court finds in its discretion that the exercise of ancillary jurisdiction is not warranted

here. As set forth above, Plaintiff’s claims arise under state law and implicate no substantial

federal issue; accordingly, the principles of comity and federalism weigh against the exercise of

federal jurisdiction. Moreover, upon the agreement of the remaining parties in this case, the Court

has stayed discovery and other proceedings until the resolution of the pending motions. Therefore,

this action is at an early stage, and remand would not sacrifice judicial economy or prejudice any

party. See Merit Sys. Protection Bd., 762 F.2d at 1338; see also Gabaldon, 2017 WL 3057668, at

*1 (recommending remand where action was recently filed and only state-law claims were raised

against the remaining nongovernmental defendants); Gen. Motors Corp. v. Hirschfield Steel Serv.

Ctr., Inc., 402 F. Supp. 2d 800, 808 (E.D. Mich. 2005) (finding, after dismissal of federal

defendant, “no good reason . . . to engage in the endeavor of determining and applying state law

when there are no federal claims remaining in this Court, discovery has not yet commenced, and

the litigation is in its initial stages”). The Court finds accordingly that this action should be

remanded.

IV. Conclusion

For the reasons set forth herein, Plaintiff’s Motion to Remand (Doc. 5) is granted. The

Court directs the Court Clerk to remand this action to the District Court for Tulsa County,

Oklahoma. As a result of this remand order, Defendants’ Motion to Dismiss (Doc. 11) is moot.

SO ORDERED this 26th day of July, 2019.