United States District Court, E.D. Arkansas, Western Division
Kristine G. Baker United States District Judge
Robert Steinbuch filed this action in Pulaski County Circuit
Court in Little Rock, Arkansas, against defendants University
of Arkansas, and the Trustees of the University of Arkansas
in their official and person capacities-Michael Schwartz,
Theresa Beiner, Zulma Toro, and Joann Maxey (hereinafter
“Defendants”). Defendants removed the case to
this Court pursuant to 28 U.S.C. § 1331 (Dkt. No. 1,
¶ 2). Before the Court is Mr. Steinbuch's motion for
remand to state court and stay consideration of
plaintiff's time to respond to defendants' motion to
dismiss pending outcome of the remand issue (Dkt. No. 12).
Defendants have responded to the motion to remand (Dkt. No.
15). Defendants have also filed a motion to dismiss to which
Mr. Steinbuch has not yet responded (Dkt. No. 3). For the
following reasons, the Court grants Mr. Steinbuch's
motion to remand (Dkt. No. 12).
November 17, 2015, Mr. Steinbuch sued defendants in the
Pulaski County Circuit Court in Little Rock, Arkansas, for an
alleged violation of the Arkansas Freedom of Information Act
(“AFOIA”), Ark. Code Ann. § 25-19-101 et
seq. (Dkt. No. 1, at 25). After filing an amended
complaint (Dkt. No. 5), a second amended complaint (Dkt. No.
6), a third amended complaint (Dkt. No. 7), and a fourth
amended complaint on state court (Dkt. No. 9), Mr. Steinbuch
is now alleging defendants violated the AFOIA; the Arkansas
Whistleblower Act, Ark. Code Ann. § 21-1-503(c)(1); his
right to free speech under both the United States and
Arkansas Constitutions; his right to academic freedom; and
his right against tortious interference with his employment
contract (Dkt. No. 9).
fourth amended complaint Mr. Steinbuch seeks a hearing
concerning the denial of information request under the AFOIA
(Dkt. No. 9). He also seeks a judicial determination that:
(1) certain defendants violated the AFOIA through improper
redaction of requested records; (2) certain defendants were
not substantially justified in their refusal to provide the
records as requested; (3) he is entitled to unredacted copies
of the requested records; (4) certain defendants violated the
WBA and AFOIA anti-retaliation statutes; (5) certain
defendants violated his First Amendment right in Article 2
Section 6 of the Arkansas Constitution, violated his academic
freedom, and tortiously interfered with his employment
contract; and (6) that Ms. Beiner and Mr. Schwartz acted with
malice (Dkt. No. 9, ¶¶ 265-269).
Steinbuch is also seeking judicial determination that he is
entitled to injunctive relief; actual damages, where legally
permitted and appropriate; and attorney's fees and costs
from the Claims Commission, as well as any and all such
additional relief which is necessary and proper (Dkt. No. 9,
Motion To Remand
courts are courts of limited jurisdiction” and
“possess only that power authorized by Constitution and
statute.” Kokkonen v. Guardian Life Ins. Co. of
Am., 511 U.S. 375, 377 (1994). “[A]ny civil action
brought in a State court of which the district courts of the
United States have original jurisdiction, may be removed by .
. . the defendants, to the district court of the United
States for the district and division embracing the place
where such action is pending.” 28 U.S.C. §
1441(a). The removing party has the burden to show, by a
preponderance of the evidence, that removal was proper.
Altimore v. Mount Mercy College, 420 F.3d 763, 768
(8th Cir. 2005). Any “doubts about federal jurisdiction
must be resolved in favor of remand.” Baker v.
Martin Marietta Materials, Inc., 745 F.3d 919, 923 (8th
contend that this action was removable because this Court has
federal question jurisdiction (Dkt. No. 1, ¶ 2). Federal
courts have federal question jurisdiction over all civil
actions arising under the Constitution, laws, or treaties of
the United States. 28 U.S.C. § 1331. Mr. Steinbuch has
alleged in his fourth amended complaint that defendants
violated his First Amendment rights, citing both the United
States and Arkansas constitutions. He has also alleged that
defendants violated his right to academic freedom, but he
does not provide a source of law for this right (Dkt. No. 9,
First Amendment Claim
Steinbuch does not dispute that federal question jurisdiction
exists in this case; he instead agrees to waive his federal
First Amendment claim brought under the United States
constitution, in effect removing the basis for federal
question jurisdiction (Dkt. No. 12, at). Upon remand, Mr.
Steinbuch claims that he will amend his complaint in state
court to dismiss voluntarily his federal First Amendment
claim. Mr. Steinbuch claims that “[f]ederal courts have
the power to remand state claims after the federal claims
have been waived by the plaintiff. 28 U.S.C. § 1447;
Carnegie-Mellon University v. Cohill, 484 U.S. 343
(1988) (‘remand enables district courts to deal with
cases involving pendent claims in the manner that best serves
the principles of economy, convenience, fairness, and comity
which underlie the pendent jurisdiction doctrine') (J.
Marshall); Carlsbad Technology, Inc. v. HIF Bio,
Inc., 556 U.S. 635 (2009).” (Dkt. No. 12, at 2-3).
state that they “do not object to embarking upon a
procedural journey that leads to the following: (1) the
proper, permanent deletion of Plaintiff's
federal-question claims and (2) a discretionary remand of the
remaining state-law claims, notwithstanding this Court's
supplemental jurisdiction.” (Dkt. No. 15, at 3).
Defendants further contend that “[a] remand in due
course is particularly justified by certain state-law
wrinkles in this case, including (1) an interlocutory appeal
that is currently pending in two Arkansas appellate courts in
connection with the FOIA claim and (2) the Arkansas Supreme
Court's failure to address the substance of Special
Justice Dobson's concurring opinion Johnson v. Board
of Trustees of the University of Arkansas, 2016 Ark.
253, *9-*13 (Id., n.3).
jurisdiction is determined by examining the operative
complaint. See, e.g., In re Atlas Van Lines, Inc.,
209 F.3d 1064, 1067 (8th Cir. 2000) (“[I]n cases where
a plaintiff has filed an amended complaint, federal courts
must resolve questions of subject matter jurisdiction by
examining the face of the amended complaint.”). Mr.
Steinbuch's fourth amended complaint is the operative
complaint (Dkt. No. 9). Defendants contend that, “a
plaintiff ordinarily deletes her federal claims by filing an
amended complaint that clearly omits them. See,
e.g., Carnegie-Mellon University v. Cohill, 484
U.S. 343 (1998).” (Dkt. No. 15, at 3-4). Here, Mr.
Steinbuch has not filed a motion to amend, but this Court
construes the waiver of his federal First Amendment cause of
action as a request to dismiss voluntarily that claim under
Federal Rule of Civil Procedure 41(a).
Court grants that request. In making its rulings, this Court
relies on Mr. Steinbuch's representation that he waives
his federal First Amendment cause of action, Claim VI in his
fourth amended complaint, and that he will no longer pursue
that claim when this case is remanded to state court.
Defendants argue that “the state court and the parties
should have certainty about whether Claim VI exists and
whether Claim V arises under federal law.”
(Id.). This Court's ruling resolves the first