American Bush v. City of South Salt Lake , 42 F. App'x 308 ( 2002 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUL 5 2002
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
AMERICAN BUSH, a Utah
corporation; JERRY NIELSEN, doing
business as Paradise Modeling;
BRENT E. REID, doing business as
All for Love; GAYLE PETERSEN, Nos. 01-4121 & 01-4122
doing business as Leather and Lace, (D.C. No. 2:01-CV-327-B)
(D. Utah)
Plaintiffs-Appellants,
v.
CITY OF SOUTH SALT LAKE, a
municipal corporation,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before SEYMOUR , PORFILIO , and BALDOCK , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The cases are
therefore ordered submitted without oral argument.
Plaintiffs appeal the district court’s dismissal of their federal claims with
prejudice instead of without prejudice. Defendant cross appeals, claiming the
district court’s order is correct. We exercise jurisdiction under 28 U.S.C. § 1291and reverse.
Plaintiffs are engaged in the adult entertainment industry. They have
challenged various ordinances enacted by defendant to regulate or exclude their
respective businesses. Some of their claims implicated rights guaranteed by the
United States Constitution. After plaintiffs filed suit in a Utah state court
challenging the ordinances, defendant removed the action to federal court,
pursuant to 28 U.S.C. § 1441. Plaintiffs immediately amended their complaint to
omit their federal claims in order to defeat federal jurisdiction. The district court
then dismissed the federal claims with prejudice and the state claims without
prejudice. Plaintiffs maintain that the federal court did not have jurisdiction to
dismiss with prejudice their federal claims. Neither party challenges the propriety
of the removal to federal court nor the district court’s treatment of the state-law
claims.
As a preliminary matter, we consider defendant’s motion to dismiss
plaintiffs’ appeal for failure to file an appellate brief within forty days after
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notification that the appellate record was complete. The motion to dismiss is
denied. See Bartell v. Aurora Pub. Sch. , 263 F.3d 1143, 1146 (10th Cir. 2001)
(declining to dismiss appeal for failure to timely file appellate brief).
Turning to plaintiffs’ argument that the district court did not have
jurisdiction to dismiss with prejudice their federal claims, we first note that the
federal district court had jurisdiction over the case because the original state-court
complaint included federal claims. “[T]he propriety of removal is judged on the
complaint as it stands at the time of the removal.” Pfeiffer v. Hartford Fire Ins.
Co. , 929 F.2d 1484, 1488 (10th Cir. 1991). “We review the trial judge’s
dismissal with prejudice for an abuse of discretion.” United States ex rel. Stone
v. Rockwell Int’l Corp. , 282 F.3d 787, 809 (10th Cir. 2002).
Upon removal and before defendant filed an answer to the complaint, the
plaintiffs filed an amended complaint and a motion to dismiss in order to return
the case to the state court. Rule 15(a) of the Federal Rules of Civil Procedure
permits a party to amend its pleading “once as a matter of course at any time
before a responsive pleading is served.” Accord James V. Hurson Assocs. v.
Glickman , 229 F.3d 277, 282-83 (D.C. Cir. 2000) (Rule 15(a) “guarantee[s] a
plaintiff an absolute right to amend its complaint once at any time before the
defendant has filed a responsive pleading.”). The “responsive pleading”
contemplates a substantive response to the allegations in the complaint. A motion
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to dismiss, for example, does not cut off a plaintiff’s right to amend without leave
of court. See id. at 283 (motion to dismiss does not qualify as responsive
pleading for Rule 15 purposes) . Similarly, the removal petition did not serve to
cut off plaintiffs’ right to amend their complaint once as a matter of course. 1
Once the complaint was amended, the federal claims were not part of the
case. See Miller v. Glanz , 948 F.2d 1562, 1565 (10th Cir. 1991) (amended
complaint supersedes original). At that point, the district court had discretion
only to retain the state claims or relinquish jurisdiction to the state court. See
28 U.S.C. § 1367(a)&(c)(3) (district court has supplemental jurisdiction over
state-law claims integrally related to federal claims, but may refuse supplemental
jurisdiction if federal claims are dismissed); see also Bauchman ex rel. Bauchman
v. West High Sch. , 132 F.3d 542, 549 (10th Cir. 1997) (“If federal claims are
dismissed before trial, leaving only issues of state law, ‘the federal court should
decline the exercise of jurisdiction by dismissing the case without prejudice.’”)
(quoting Carnegie-Mellon Univ. v. Cohill , 484 U.S. 343, 350 (1988)).
Accordingly, because the federal claims were no longer before the court, the
district court abused its discretion by dismissing them with prejudice.
1
The district court docket sheet reflects that defendant subsequently filed an
answer to the amended complaint. Therefore, plaintiffs would be required to
obtain leave of court before again amending their complaint for two reasons: only
one amendment as a matter of course is permitted, and defendant’s answer is a
“responsive pleading.” See F ED . R. C IV . P. 15(a).
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Defendant’s motion to dismiss the appeal is denied. The judgment of the
United States District Court for the District of Utah is REVERSED, and the case
is REMANDED for further proceedings consistent with this order and judgment.
Entered for the Court
Stephanie K. Seymour
Circuit Judge
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