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WO

NOT FOR PUBLICATION 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

James Terry, 

Plaintiff, 

v. 

United Parcel Service Incorporated, 

Defendant. 

No. CV-17-04792-PHX-DJH

ORDER 

 Pending before the Court are Defendant’s Motion for Judgment on the Pleadings 

and for Summary Judgment (Doc. 156), to which Plaintiff filed a Response (Doc. 163), 

and Defendant filed a Reply (Doc. 171); and Defendant’s Motion to Dismiss, or in the 

Alternative, Remand to State Court (Doc. 170), to which Plaintiff filed a Response 

(Doc. 175), and while the time for Defendant to file a Reply has not expired, the Court 

finds a Reply unnecessary. 

I. BACKGROUND 

 Plaintiff filed his Amended Complaint in federal court, pleading four federal causes 

of action against Defendant: (1) Disability Discrimination under the Americans with 

Disabilities Act (“ADA”) (Count One); (2) Race Discrimination under Title VII of the 

Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. (“Title VII”) (Count Three); (3) Sex 

Discrimination under Title VII (Count Four); and (4) Age Discrimination under the Age 

Discrimination in Employment Act, 29 U.S.C. § 621, et seq. (Count Five). (Doc. 27 at 7-

10). Plaintiff also pled three state law claims: (1) Disability Discrimination under the 
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Arizona Civil Rights Act (“ACRA”) (Count Two); (2) Discrimination in Violation of 

Arizona Medical Marijuana Act (“AMMA”) (Count Six); and (3) Defamation Per Se 

(Count Seven). (Id. at 7-11). On May 29, 2018, Defendant filed a Motion to Dismiss 

Count Two, Plaintiff’s claim for unlawful disability discrimination in violation of the 

ACRA, which the Court granted. (Doc. 93). The Court also granted the parties’ Stipulation 

to Dismiss Count One, Plaintiff’s claim for unlawful disability discrimination in violation 

of the ADA. (Doc. 132). Thus, there are three remaining federal claims (Counts Three, 

Four, and Five) and two remaining state law claims (Counts Six and Seven). 

II. DISCUSSION 

In its pending Motion to Dismiss, Defendant argues that it moved for summary 

judgment on all of Plaintiff’s remaining claims and in Plaintiff’s Response, he voluntarily 

abandoned his three remaining federal claims by stating, “[u]pon further review of the law 

and the available evidence, [Plaintiff] is not opposing UPS’ Motion [for Summary 

Judgment] as it relates to the counts for age, race, and sex discrimination . . . .” 

(Doc. 170 at 2) (quoting Doc. 163 at 1) (third alteration in original). Plaintiff further stated 

in his Response to Defendant’s Motion for Summary Judgment, “[a]lthough [he] does feel 

that he was improperly discriminated against, he is making the strategic decision to move 

forward on his AMMA and defamation claims only.” (Doc. 163 at 1) (emphasis added)). 

Additionally, in his Response to Defendant’s Motion to Dismiss, Plaintiff concedes that 

“state law governs his remaining claims and that there is not a good reason for this Court 

to continue to assert supplemental jurisdiction.” (Doc. 175 at 1). 

 In light of these representations, the Court will grant Defendant’s Motion for 

Summary Judgment on Counts Three, Four, and Five only. Therefore, as only state law 

claims remain and Plaintiff agrees “that there is not a good reason for this Court to continue 

to assert supplemental jurisdiction[,]” the Court will grant Defendant’s Motion to Dismiss.1

 

 

1

 Both parties appear to consent to this Court remanding the case to state court; however, this case originated in federal court. (Doc. 1). Thus, while the parties may have forgotten the well-settled principal that a federal court lacks the authority to remand a case to state 

court if the action originated in federal court, the Court has not. See Levin v. Commerce 

Energy, Inc., 560 U.S. 413, 415 (2010) (finding “federal tribunals lack authority to remand to state court an action initiated in federal court.”); Christie v. Abdo, 2012 WL 1768094, at 
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 Accordingly, 

IT IS ORDERED that Defendant’s Motion for Judgment on the Pleadings and For 

Summary Judgment (Doc. 156) is GRANTED as to Counts Three, Four, and Five only; 

IT IS FURTHER ORDERED that Defendant’s Motion to Dismiss (Doc. 170) is 

GRANTED. This action is DISMISSED; and 

IT IS FINALLY ORDERED that all other pending Motions (Docs. 153 and 154) 

are DENIED as moot. 

 Dated this 3rd day of April, 2019. 

Honorable Diane J. Humetewa

United States District Judge 

 

*1 (D. Ariz. May 17, 2012) (“There is no federal statute or rule which authorizes a district 

court to remand or transfer a case to a state court if the action was originally filed in district court and the district is without subject-matter jurisdiction to decide the case.”). Thus, the 

Court will dismiss, not remand, the action.