CATANO

v.

CAPUANO

On October 8, 2019, Plaintiff served Defendant with a second set of interrogatories and a second request for production. The purpose of these discovery requests was to gather information on Defendant’s domicile so that Plaintiff could provide a meaningful response to Defendant’s motion to dismiss for lack of subject matter jurisdiction. However, Plaintiff alleges that Defendant failed to respond to Plaintiff’s discovery requests. Plaintiff therefore seeks an extension of the discovery period so that the parties can attend the next available discovery hearing and compel Defendant to provide a response. If an extension is not granted, Plaintiff suggests that she will unable to respond to the pending motion to dismiss because it is unclear where Defendant is domiciled. We agree with Plaintiff that, generally speaking, a plaintiff should be allowed to conduct discovery prior to a dismissal of a case for a lack of subject matter jurisdiction. See, e.g., Eaton v. Dorchester Dev., Inc., 692 F. 2d 727, 731 (11th Cir. 1982) (“We hold that the district court’s dismissal for lack of subject matter jurisdiction was premature. Plaintiff must be given an opportunity to develop facts sufficient to support a determination on the issue of jurisdiction.”); Blanco v. Carigulf Lines, 632 F. 2d 656, 658 (5th Cir. 1980) (“We merely hold that the rules entitle a plaintiff to elicit material facts regarding jurisdiction through discovery before a claim may be dismissed for lack of jurisdiction.”). But, as the Court stated in the Order denying Defendant’s motion to stay [D.E. 153], the Court may retain jurisdiction over this case pursuant to 28 U.S.C. §

1367. When Plaintiff originally filed this case in federal court on January 18, 2018, Plaintiff relied on a federal question and a theory that Defendant violated the Racketeer Influenced and Corrupt Organizations Act (“RICO”). On July 11, 2019, the Court granted in part and denied in part Defendant’s motion for summary judgment and dismissed the federal question over which the Court had its original jurisdiction. [D.E. 129]. After giving Plaintiff leave to amend her complaint, Plaintiff included only state claims. The prior state law claims were before the Court as supplemental claims under the federal RICO statute. The question is then whether the Court has supplemental jurisdiction over the state law claims in the amended pleading given the absence of a federal question. The parties go back and forth on whether there is complete diversity between the parties and whether discovery is needed to resolve that question.¹ But, the dispute between the parties misses the forest for the trees because diversity is not the only alternative for the Court to retain jurisdiction. The Court may also inquire into whether there is supplemental jurisdiction basis to support Plaintiff’s state law claims. The Court’s inquiry is two-fold. “First,

the Court must decide whether it has the power to hear the state law claims. Second, if the Court does have the power to hear the state claims, the Court must decide whether, in its discretion, it will retain jurisdiction over the state claims.” Baggett v. First Nat. Bank of Gainesville, 117 F. 3d 1342, 1352 (11th Cir. 1997) (citing United Mine Workers v. Gibbs, 383 U.S. 715, 725–26 (1966)). The question of whether subject matter jurisdiction exists is measured at the time the complaint was filed. See In re Carter, 618 F. 2d 1093 (5th Cir. 1980). When Plaintiff filed her initial complaint, she included a federal question and her state law claims were a proper exercise of the Court’s supplemental jurisdiction. See 28

U.S. 343, 350 n.7 (1988) (“When federal law claims have dropped out of the lawsuit in its early stages and only state-law claims remain, the federal court should decline the exercise of jurisdiction by dismissing the case without prejudice.”); United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966) (dismissal of state law claims strongly encouraged when federal law claims are dismissed prior to trial). But, while a district should usually remand a case with the dismissal of a federal question, this is not a mandatory rule. See Carnegie-Mellon Univ., 484 at 350 (“[W]e have made clear that this statement does not establish a mandatory rule to be applied inflexibly in all cases.”) (citing Rosado v. Wyman, 397 U.S. 397, 403– 405 (1970)). “The statement simply recognizes that in 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—judicial economy, convenience, fairness, and comity—will point toward declining to exercise jurisdiction over the remaining state-law claims.” Carnegie-Mellon Univ., 484 U.S. at 350 n.7. Therefore, although a district court ultimately has discretion to retain a case, it should consider these factors carefully in making that determination. In this case, the Court has considered the factors articulated above and finds that the better course is to retain jurisdiction. The parties have litigated this case for approximately two years and the Court is well aware of the claims presented. Indeed, in granting in part and denying in part Defendant’s motion for summary judgment, the Court recommended some of the state law claims that Plaintiff should have pursued in lieu of a federal RICO claim. This means that, although the federal claim is no longer present, the state law claims are inextricably tied to the same underlying theory of liability and are not so novel as to justify dismissal. See Parker v. Scrap Metal Processors, Inc., 468 F. 3d 733, 743 (11th Cir. 2006) (“Generally, state tort claims are not considered novel or complex.”). Accordingly, Plaintiff’s motion for an extension of the discovery period is DENIED because – irrespective of whether the parties are diverse – the Court will retain, for now, jurisdiction over this case pursuant to 28 U.S.C. § 1367. Plaintiff shall file her response to Defendant’s motion to dismiss within twenty-one (21) days from the date of this Order.²

/s/ Edwin G. Torres

EDWIN G. TORRES

United States Magistrate Judge