DEBRA M. BROWN, District Judge.
This Clean Air Act action is before the Court on Defendant Gary C. Rikard's motion to dismiss for lack of jurisdiction. Doc. #95. For the reasons below, the motion to dismiss will be granted.
Of relevance to this order,
On January 23, 2015, Plaintiffs, pursuant to Rule 15(a)(1)(B), filed an amended complaint, adding as a defendant Gary Rikard, in his official capacity as Executive Director of MDEQ and its Permit Board. Doc. #69. The amended complaint contains essentially the same allegations against MS Silicon as the original complaint and adds a claim that MDEQ, in the process of granting MS Silicon's permit application, violated the CAA. Id. at ¶¶ 79-86.
On March 24, 2015, Defendant Rikard, arguing that Plaintiffs' claims were barred by the Eleventh Amendment, filed a motion to dismiss for lack of subject matter jurisdiction. Doc. #95. Plaintiffs timely responded to the motion. Doc. #104. Rikard did not reply.
On July 30, 2015, this Court issued an order dismissing without prejudice the claims against MS Silicon for lack of subject matter jurisdiction. Doc. #111 at 27. In the same order, the Court instructed Plaintiffs and Rikard to submit supplemental briefs addressing whether this Court has subject matter jurisdiction over the claims asserted against Rikard in the amended complaint, including whether the amended complaint may relate back to the original complaint for the purpose of assessing jurisdiction. Id. at 27. On August 18, 2015, the parties submitted supplemental briefs addressing the issue of this Court's jurisdiction over Rikard. Doc. #117; Doc. #118.
Two jurisdictional issues are currently before the Court: the sovereign immunity argument raised in Rikard's motion to dismiss, and the question raised by the Court as to whether the amended complaint against Rikard may even be considered for the purpose of evaluating jurisdiction. Because resolution of the latter issue would obviate the need to consider the former, the Court will first consider whether the amended complaint in this matter could create jurisdiction, independent of the sovereign immunity question. See Boe v. Fort Belknap Cmty. of Ft. Belknap Reservation, 642 F.2d 276, 279 n.5 (9th Cir. 1981) ("In view of our holding that no claim for federal relief was stated, we find it unnecessary to address the sovereign immunity issue."); In re Prairie Island Dakota Sioux, 21 F.3d 302, 305 (8th Cir. 1994) ("We find. . . that sovereign immunity is a jurisdictional consideration separate from subject matter jurisdiction and that the district court did not abuse its discretion in first determining it lacked federal question jurisdiction. . . .").
It is axiomatic that "[t]he district courts of the United States . . . are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute." Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 552 (2005) (internal quotation marks omitted). To this end, Congress has conferred jurisdiction to hear federal question cases — "civil actions that arise under the Constitution, laws, or treaties of the United States" — and diversity cases — those actions with more than $75,000 in controversy "between citizens of different States, between U.S. citizens and foreign citizens, or by foreign states against U.S. citizens." Id. "The party claiming federal subject matter jurisdiction has the burden of proving it exists." Peoples Nat. Bank v. Office of Comptroller of Currency of U.S., 362 F.3d 333, 336 (5th Cir. 2004).
"It has long been the case that `the jurisdiction of the court depends upon the state of things at the time of the action brought.'" Grupo Dataflux v. Atlas Glob. Grp., L.P., 541 U.S. 567, 570 (2004) (quoting Mollan v. Torrance, 9 Wheat. 537, 539 (1824)).
In their supplemental brief, Plaintiffs do not address whether the amended complaint relates back to the original complaint for jurisdictional purposes. Doc. #117 at 6. Rather, Plaintiffs contend that the amended complaint asserts a valid federal question and, therefore, falls within this Court's jurisdiction. Id. at 2-5. Rikard, in turn, argues that this Court lacked jurisdiction over the original complaint and that a plaintiff may not amend a complaint to "establish[] jurisdiction where it did not originally exist." Doc. #118 at 5.
Notwithstanding the authority above, Plaintiffs urge the Court to consider their amended complaint for the purpose of assessing jurisdiction. Doc. #117 at 2-4. As justification for their position, Plaintiffs argue that: (1) the Supreme Court has held that "courts look to the amended complaint to determine jurisdiction," Doc. #117 at 3 (emphasis omitted) (quoting Rockwell Int'l Corp. v. United States, 549 U.S. 457, 473-74 (2007), and citing Boelens v. Redman Homes, Inc., 759 F.2d 504, 508 (5th Cir. 1985)); (2) "the basis for the Court's jurisdictional holding as to Plaintiffs' . . . claim against MS Silicon has no bearing on Plaintiffs' separate claim against Rikard," id; and (3) "the Supreme Court has specifically rejected the notion that dismissal of one claim on jurisdictional grounds would divest a court of jurisdiction over other claims for which it otherwise has subject matter jurisdiction," id. (citing Allapattah Servs., Inc., 545 U.S. at 559, 561).
In Rockwell, the United States Supreme Court considered whether, in the context of the False Claims Act's jurisdictional original source inquiry, "[w]hich of the relator's allegations are . . . relevant." 549 U.S. at 473 (emphasis omitted). In holding that the jurisdictional inquiry included "(at a minimum) the allegations in the original complaint as amended," the Supreme Court observed:
Id. at 473-74 (emphasis, internal citations, and internal quotation marks omitted). One court which has considered the above language has held:
Branch Consultants, 782 F.Supp.2d at 261-62 (internal citations omitted and emphasis added). Other courts, focusing on the same language, have reiterated that Rockwell does not stand for the proposition that an amended complaint can create jurisdiction. See, e.g., U.S. ex rel. Carter v. Halliburton Co., ___F.Supp.3d ___, No. 1:11-cv-602, 2015 WL 7012542, at *12 (E.D. Va. Nov. 12, 2015) (citing Branch Consultants, 782 F.Supp.2d at 261-62); see also U.S. ex rel. Moore v. Pennrose Props., LLC, No. 3:11-cv-121, 2015 WL 1358034, at *15 (S.D. Ohio Mar. 24, 2015) (same).
Boelens, also cited by Plaintiffs, is not to the contrary. In Boelens, the Fifth Circuit considered the issue of "whether, in a case of original jurisdiction, the voluntary amendment of the complaint to drop a federal question removes that claim as a basis for jurisdiction." 759 F.2d at 507. The Fifth Circuit concluded that "because the burden is on the plaintiff to establish jurisdiction in the first instance, . . . the plaintiff must be held to the jurisdictional consequence of a voluntary abandonment of claims that would otherwise provide federal jurisdiction." Id. at 508. Thus, Boelens does not stand for the proposition that an amended complaint may create jurisdiction where no jurisdiction existed. Rather, Boelens stands for the point of law that (as observed by Branch Consultants) a plaintiff may amend himself out of jurisdiction.
Plaintiffs' second and third points both rest on the legal argument that a jurisdictional ruling on one claim does not necessarily impact the Court's jurisdiction over a separate claim. While legally true, such an argument does not compel the conclusion that an amended complaint may create jurisdiction when the original complaint did not implicate jurisdiction.
In Allapattah Services, the Supreme Court rejected the contention "that a district court lacks original jurisdiction over a civil action unless the court has original jurisdiction over every claim in the complaint." 545 U.S. at 560. In reaching this conclusion, the Supreme Court rejected two theories of jurisdiction: the indivisibility theory, under which "all claims in [a] complaint must stand or fall as a single, indivisible civil action;" and the contamination theory, under which "the inclusion of a claim or party falling outside the district court's original jurisdiction somehow contaminates every other claim in the complaint." Id. at 560-62 (internal quotation marks omitted).
The indivisibility and contamination theories are not implicated by the rule prohibiting the creation of jurisdiction by amendment. While the indivisibility and contamination theories relate to claims within a single complaint, see id., the non-amendment rule, by its definition, relates to claims in different complaints (i.e., the original and amended complaints here). Thus, Plaintiffs' second and third points are also without merit.
Having found that Plaintiffs' arguments do not warrant departure from the general rule that jurisdiction may not be created by the filing of an amended complaint, the Court must apply the rule to this case.
In considering the effect of amendment on jurisdiction in this matter, it is instructive to consider the facts of Katrina Canal Breaches. In Katrina Canal Breaches, the plaintiffs filed original complaints against a series of state and local actors. 342 Fed. App'x at 930. Sometime later, with the consent of the defendants, the plaintiffs filed second amended complaints adding the United States as a defendant and asserting pendent jurisdiction over the claims against the state defendants. Id. The state defendants challenged the jurisdiction of the court, and the Fifth Circuit held that "the new claims against the United States added in the second amended complaint cannot be relied upon to establish subject matter jurisdiction because while a plaintiff may amend a complaint to cure inadequate jurisdictional allegations, amendment may not create subject matter jurisdiction when none exists." Id. at 931.
Here, the Court lacked jurisdiction over the original complaint in this action and, as recognized in Katrina Canal Breaches, the lack of jurisdiction could not be remedied by Plaintiffs filing an amended complaint asserting an entirely new claim against an entirely new defendant. Id.
Because this Court lacked jurisdiction at the time the original complaint was filed, the time-of-filing rule compels the conclusion that this Court lacks jurisdiction over the amended complaint. Grupo Dataflux, 541 U.S. at 570. Therefore, the amended complaint, which was filed in an action over which this Court lacks jurisdiction, is a nullity. Nuance Commc'ns, Inc., 2009 WL 1364346, at *2. Thus, this Court lacks jurisdiction
For the reasons above, Rikard's motion to dismiss for lack of jurisdiction, Doc. #95, is
SO ORDERED.