Case: 20-55414, 07/29/2020, ID: 11771417, DktEntry: 5, Page 1 of 12

No. 20-55414
_______________________________________

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT
_______________________________________

ISAAC GARCIA,

Plaintiff-Appellee,

v.

CITY OF SANTA ANA, et al.,

Defendants, and

DAN ESCAMILLA,

Defendant-Appellant.
_______________________________________

On Appeal from the United State District Court for the Southern District of
California, No. 8:19-cv01168-JVS-JDE, Hon. James V. Selna
_______________________________________

APPELLANT’S OPENING BRIEF

_______________________________________

Dan Escamilla
Post Office Box 117
Atwood, CA 92811
Tel: (714) 783-3016
Fax: (714) 783-3016
[email protected]

Appellant in Pro Se
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TABLE OF CONTENTS

INTRODUCTION ....................................................................................... 4

STATEMENT OF JURISDICTION ......................................................... 6

STATEMENT OF ISSUES ......................................................................... 7

STATEMENT OF THE CASE .................................................................. 7

SUMMARY OF ARGUMENT................................................................... 7

STANDARD OF REVIEW ......................................................................... 8

ARGUMENT................................................................................................ 8

I. THE COURT IMPROPERLY APPLIED THE TOLLING

PROVISIONS OF 28 U.S.C. § 1367(a) WITHOUT FIRST
DETERMINING WHETHER IT HAD SUBJECT MATTER
JURISDICTION OVER PLAINTIFF’S COMPLAINT .................... 8

II. THE COURT ABUSED ITS DISCRETION BY FAILING TO

GRANT RECONSIDERATION WHERE IT APPLIED A TOLLING
STATUTE WITHOUT FIRST CONSIDERTING WHETHER IT
HAD SUBJECT MATTER JURISDICTION OVER PLAINTIFF’S
CLAIMS .................................................................................................. 9

CONCLUSION .......................................................................................... 10

STATEMENT REGARDING ORAL ARGUMENT ............................ 11

ECF CERTIFICATE OF SERVICE ....................................................... 12

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TABLE OF AUTHORITIES

Cases
Allstate Ins. Co. v. Herron, 634 F.3d 1101, 1111 (9th Cir. 2011) .............................9
Barroso v. Gonzales, 429 F.3d 1195, 1200 (9th Cir.2005) .......................................8
Beeman v. TDI Managed Care Svcs., 449 F.3d 1035, 1038 (9th Cir. 2006) .............8
McDowell v. Calderon, 197 F.3d 1253, 1255 & n.1 (9th Cir. 1999) (en banc)
(per curiam) ............................................................................................................9
Morris v. Giovan 242 P.3d 181 (Ariz. Ct. App. 2010) ..............................................9
Raygor v. Regents of University of Minnesota,. 534 U.S. 533, 542, 122 S.Ct.
999, 152 L.Ed.2d 27 (2002) ....................................................................................8
Schleining v. Thomas, 642 F.3d 1242, 1246 (9th Cir. 2011) .....................................8

Statutes
28 U.S.C. § 1331 ........................................................................................................7
28 U.S.C. § 1332 ........................................................................................................7
28 U.S.C. § 1337 ........................................................................................................7
28 U.S.C. § 1343(a) ...................................................................................................7
28 U.S.C. § 1367 .............................................................................................. passim
Fed. R. Civ. P. 12(b)(1)..............................................................................................8

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INTRODUCTION

This is an action brought by Plaintiff against the City of Santa Ana, various
police officers and Defendant Daniel Escamilla (“Escamilla”) a professional
California Bail Fugitive Recovery Agent credentialed to arrest bail fugitives under

California law.
On June 15, 2017, after receiving information that a felony fugitive was
hiding inside a residential building, and at the request of bail agent Luis Mier,
Escamilla responded to apprehend and arrest a felony fugitive. (Dec. ¶ 6.)
In compliance with California law, Escamilla notified the Santa Ana Police
Department of his intended apprehension and requested that an officer respond to
“keep the peace.” (Dec. ¶ 7.) When the officers arrived, they simply waited on the
sidewalk in front of the residence and made no effort to assist Escamilla in his entry
or search of the building. (Dec. ¶ 8.)

Escamilla, acting alone, entered the residence and during his search of the
building he was assaulted by Plaintiff who blocked his entry to a rear bedroom and
attempted to take his holstered firearm. Escamilla tasered Plaintiff to protect himself
and avoid a potentially deadly struggle over his firearm. (Dec. ¶ 9.) Escamilla then
walked Plaintiff outside and delivered Plaintiff into the custody of the SAPD
officers, who were continuing to wait on the sidewalk. Escamilla requested that they

place Plaintiff under arrest for assault. (Dec. ¶ 10.) The SAPD officers were legally
required to take Plaintiff into custody. Upon returning to the building, Escamilla
discovered a window screen had been removed from the rear bedroom where the
fugitive was believed to have been hiding.

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Nearly two (2) years later, this action was thereafter brought by Garcia
alleging in Plaintiff’s First Amended Complaint (“FAC”), two (2) federal law
violations against state actors and the following state-law causes of actions against
Defendant Escamilla:
• the Third Cause of Action for negligence;
• the Fourth Cause of Action for assault and battery;

• the Fifth Cause of Action for intentional infliction of emotional distress;

• the Sixth Cause of Action for trespass.
Escamilla brought a Motion to Dismiss on January 7, 2020 based on the lack
of subject matter jurisdiction under FRCP 12b (ECF 49). Escamilla argued that the
federal court had no subject matter jurisdiction since the only acts which would
constitute Constitutional violations, were committed by Escamilla, a non-state actor.
Plaintiff filed its opposition to the motion to dismiss on February 3, 2020
(ECF 57), twenty-one (21) days prior to the hearing on the motion set for February
24, 2020. Plaintiff’s opposition notified the Court that Plaintiff has reached an

agreement to dismiss the federal claims against the City of Santa Ana, including the
police officers, and, in relevant part, requests that,

“the claims/causes of action against the remaining defendants

[including this Defendant] be dismissed without prejudice to allow
plaintiff to pursue the remaining claims in the Superior Court pursuant
to 28 U.S.C. § 1367(d).”

Prior to the time Escamilla’s reply memorandum would have been due and

prior to determining the subject matter jurisdiction issues raised in Escamilla’s

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motion to dismiss, the Court issued its Order (ECF 59) on February 4, 2020, which
provides,

“There being no supplemental jurisdiction over the remaining state-law

claims, the supplemental claims are dismissed without prejudice.
Pursuant to 28 U.S.C. § 1367, it is further ordered that Plaintiffs shall
have 30 days from the entry date of this order to re-file the matter in
the California Superior Court.”

Petitioner sought reconsideration on the grounds that the federal court never
had any subject matter jurisdiction over the Plaintiff’s lawsuit because there was no
federal question and this was the basis of Defendant’s motion to dismiss (ECF 49).
The grounds for this motion are fully developed in the Defendant’s points and
authorities (ECF 50). Defendant argued that because the federal court lacked subject
matter jurisdiction, its power to assert supplemental jurisdiction over state law
claims was never triggered, and thus the tolling provision of § 1367(d) never comes
into play. Thus, the Court’s Order purporting to toll Plaintiff’s state law claims in the
February 4, 2020 Order (ECF 59) should be stricken.

Defendant’s motion for reconsideration was denied. It is from this denial and
from the Court’s exercise of jurisdiction by allowing the tolling of Plaintiff’s action
under 28 U.S.C. § 1367, that Appellant seeks review by this appeal.

STATEMENT OF JURISDICTION

The district court exercised jurisdiction under 28 U.S.C. §§ 1331, 1332,

1337, 1343(a), and supplemental jurisdiction over the pendent state law claims under
28 U.S.C. § 1367(a). This appeal challenges the Court’s issuance of the tolling order

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without making a prior determination on Appellant’s motion to dismiss for lack of

subject matter jurisdiction.

STATEMENT OF ISSUES

1. Whether the district court lacked jurisdiction to toll Plaintiff’s claims

under 28 U.S.C. § 1367(a) without first addressing Appellant’s motion to dismiss

based on subject matter jurisdiction.

2. Whether the district court erred in failing to grant Appellant’s motion to
reconsider.

STATEMENT OF THE CASE

Defendant appeals the denial of his motion to reconsider and the Court’s

exercise of supplemental jurisdiction by issuing a tolling order without first

determining Defendant’s motion to dismiss which argued that there was no federal
question jurisdiction and thus, no subject matter jurisdiction.

SUMMARY OF ARGUMENT

Defendant contends that the federal court never had any subject matter
jurisdiction over the Plaintiff’s lawsuit because there was no federal question. This
was the basis of Defendant’s motion to dismiss (ECF 49) and the grounds for this

motion are fully developed in the Defendant’s points and authorities (ECF 50).
Because the federal court lacked subject matter jurisdiction, its power to
assert supplemental jurisdiction over state law claims was never triggered, and thus

the tolling provision of § 1367(d) never comes into play. Thus, the Court’s Order

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purporting to toll Plaintiff’s state law claims in the February 4, 2020 Order (ECF
59) should be stricken.
STANDARD OF REVIEW

Statutory interpretation is a matter which is reviewed de novo. See

Schleining v. Thomas, 642 F.3d 1242, 1246 (9th Cir. 2011); Beeman v. TDI
Managed Care Svcs., 449 F.3d 1035, 1038 (9th Cir. 2006)

This Court’s reviews of a denial of a motion to reconsider or reopen for an

abuse of discretion. See Barroso v. Gonzales, 429 F.3d 1195, 1200 (9th Cir.2005).

ARGUMENT
I.
THE COURT IMPROPERLY APPLIED THE TOLLING PROVISIONS OF 28
U.S.C. § 1367(a) WITHOUT FIRST DETERMINING WHETHER IT HAD

SUBJECT MATTER JURISDICTION OVER PLAINTIFF’S COMPLAINT

Here, the Court’s February 4, 2020 judgment invokes the tolling provision of
28 U.S.C. § 1367(d) and fails to account for the federal court’s lack of subject

matter jurisdiction.
In Raygor v. Regents of University of Minnesota,. 534 U.S. 533, 542,
122 S.Ct. 999, 152 L.Ed.2d 27 (2002), the U.S. Supreme Court held
that § 1367(d) does not toll the statute of limitations for supplemental
state law claims if the action is dismissed for lack of subject matter
jurisdiction.
“…[I]t is the absence of federal subject matter jurisdiction that
precludes the federal court's assertion of supplemental jurisdiction and
prevents operation of § 1367's tolling provision.
[fn 8] See Nowak v. Ironworkers Local 6 Pension Fund, 81 F.3d U 82,
1188 (2d Cir. 1996) ("since a court must have original jurisdiction in
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order to exercise supplemental jurisdiction, a dismissal pursuant to Rule

12(b)(1) precludes a district court from exercising supplemental
jurisdiction over related state claims"); see also MCI Telecomms. Corp.
v. Teleconcepts, Inc., 71 F.3d 1086, ¶ 102 (3d Cir. 1995) (reasoning that
before a federal court may exercise supplemental jurisdiction, the
federal claim must be shown to have substance sufficient to confer
subject matter jurisdiction on the court).
…Thus, § 1367(d) does not toll the statute of limitations for state law
claims that are supplemental to an action dismissed from federal court
for lack of subject matter jurisdiction. This remains true regardless of
whether the federal court lacks jurisdiction because the action is barred
by the constitution or because there is no federal question from the
inception.
Morris v. Giovan 242 P.3d 181 (Ariz. Ct. App. 2010)
As in Morris, the Court never had subject matter jurisdiction over Plaintiff’s
federal claims in this case. (See Defendant’s memorandum of points and authorities
(ECF 50)). The Court’s lack of jurisdiction is dispositive on the Court’s power to
assert supplemental jurisdiction over Plaintiff’s state claims against Defendant, and
the concomitant power to invoke the tolling provision of 28 U.S.C. § 1367.

II.
THE COURT ABUSED ITS DISCRETION BY FAILING TO GRANT
RECONSIDERATION WHERE IT APPLIED A TOLLING STATUTE
WITHOUT FIRST CONSIDERTING WHETHER IT HAD SUBJECT
MATTER JURISDICTION OVER PLAINTIFF’S CLAIMS
Courts are empowered to grant motions to reconsider in exceptional

circumstances, typically when the judgment fails to account for dispositive factual
matters or controlling decisions of law. (Allstate Ins. Co. v. Herron, 634 F.3d 1101,
1111 (9th Cir. 2011)); McDowell v. Calderon, 197 F.3d 1253, 1255 & n.1 (9th Cir.

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1999) (en banc) (per curiam).) Here, the Court’s February 4, 2020 judgment invokes
the tolling provision of 28 U.S.C. § 1367(d) and fails to account for the federal
court’s lack of subject matter jurisdiction. This is an exceptional circumstance which
justifies reconsideration and the District Court’s denial of reconsideration was an
abuse of discretion.
CONCLUSION

Because the Court lacked subject matter jurisdiction over Plaintiff’s federal
claims, based on lack of federal question jurisdiction, the Court improperly exercised
its supplemental jurisdiction over Plaintiff’s state law claims by invoking the tolling
provision of 28 U.S.C. § 1367.
Because the judgment failed to account for dispositive factual matters –
subject matter jurisdiction in this case – the Court abused its discretion in denying
reconsideration.
Based on the foregoing, this appeal should be granted and the matter should
be remanded with instructions for the District Court to strike the final sentence in the

Court’s February 4, 2020 Order (ECF 59) providing, “Pursuant to 28 U.S.C. § 1367,
it is further ordered that Plaintiffs shall have 30 days from the entry date of this
order to re-file the matter in the California Superior Court.”

Dated: July 29, 2020 Respectfully submitted,

Dan Escamilla
Appellant in Pro Se
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STATEMENT REGARDING ORAL ARGUMENT

Pursuant to Fed. R. App. P. 34(a)(2)(C), appellant contends that oral
argument is not needed as the facts and legal arguments are adequately presented in
the briefs and record, and the decisional process would not be significantly aided by

oral argument.
Dated: July 29, 2020 Respectfully submitted,

Dan Escamilla
Appellant in Pro Se

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ECF CERTIFICATE OF SERVICE

I hereby certify that on July 29, 2020, I electronically filed the foregoing with
the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit
by using the appellate CM/ECF system.

Participants in the case who are registered CM/ECF users will be served by
the appellate CM/ECF system. Any other counsel of record will be served by
electronic mail, facsimile, regular mail, email personal delivery and/or overnight

delivery upon their appearance in this matter and/or as directed by the Court
Dated: July 29, 2020

Dan Escamilla
Appellant in Pro Se

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