United States District Court, W.D. Kentucky, Louisville Division
MICHELE A. BRIGGS PLAINTIFF
LSM PROPERTIES OF KENTUCKY, LLC DEFENDANT
MEMORDANUM OPINION & ORDER
N. STIVERS, JUDGE UNITED STATES DISTRICT COURT
matter is before the Court upon Plaintiff's Motion to
Remand and for Costs (DN 7) and Defendant's Motion to
Dismiss (DN 10), which are ripe for adjudication. For the
reasons discussed below, Plaintiff's motion is GRANTED IN
PART and DENIED IN PART. Defendant's motion is DENIED AS
a personal injury case. Plaintiff Michele Briggs
(“Briggs”) filed this action in Jefferson Circuit
Court alleging that Defendant LSM Properties of Kentucky, LLC
(“LSM”) failed to adequately maintain an access
ramp on one of its properties, which caused her injury.
(Notice of Removal Ex. 1, at 2-6, DN 1-1 [hereinafter
Compl.]). Her allegations can be briefly summarized as
follows: On September 2, 2015, Briggs went to an LSM property
to purchase a cellphone from LSM's lessee, the Sprint
Store. (Compl. ¶ 9). After conducting her business in
the store, Briggs, who uses a wheelchair for mobility, exited
and proceeded down the concrete access ramp that connects the
store's entrance to the parking lot. (Compl. ¶ 11).
There was a considerable gap between the bottom of the access
ramp and the pavement of the parking lot. (Compl. ¶ 12).
As Briggs moved down the ramp, her wheelchair stalled in the
gap, resulting in her being ejected from the wheelchair and
causing her injury. (Compl. ¶¶ 13, 21). The
Complaint forwards two theories of recovery: negligence and
negligence per se. (Compl. ¶¶ 17-18). Brigg's
negligence per se theory is based upon KRS 198B.260, which
adopts the Americans with Disabilities Act of 1991, 42 U.S.C.
§§ 12101-12213, (“ADA”) and its
guidelines. (Compl. ¶ 18; Pl.'s Mem. Supp. Mot.
Remand & Costs 2, DN 7-1).
removed this case from state court under 28 U.S.C. §
1441. (Notice of Removal 1, DN 1). Defendants contend that
“[t]his court has jurisdiction over this matter
pursuant to 28 U.S.C § 1331 because Plaintiff's
Complaint alleges violations of the [ADA] . . . .”
(Notice of Removal 2). Subsequently, Briggs filed a motion to
remand this action to Jefferson Circuit Court under 28 U.S.C.
§ 1447(c). (Pl.'s Mot. Remand & Costs, DN 7).
of an action from state court to federal court is proper when
the plaintiff could have brought the action in federal court
originally. 28 U.S.C. § 1441(a) (“[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 defendant . . . .”). Unlike state trial
courts, federal district courts are courts of limited
jurisdiction; they hold only that power authorized by statute
and the U.S. Constitution and statute. Gunn v.
Minton, 133 S.Ct. 1059, 1964 (2013) (citation omitted).
Under 28 U.S.C. § 1331, district courts have original
jurisdiction over “actions arising under the
Constitution, laws, or treaties of the United States.”
Id. Moreover, “[t]he party seeking removal
bears the burden of demonstrating that the district court has
original jurisdiction.” Eastman v. Marine Mech.
Corp., 438 F.3d 544, 549 (6th Cir. 2006) (citations
omitted). “[B]ecause lack of jurisdiction would make
any decree in the case void and the continuation of the
litigation in federal court futile, the removal statute
should be strictly construed and all doubts resolved in favor
of remand.” Id. at 549-50 (alteration in
original) (internal quotation marks omitted) (citation
to this analysis is the well-pleaded complaint rule which
directs courts to examine the “[w]ell pleaded
allegations of the complaint and ignore potential
defenses” in determining whether a claim arises under
federal law. Beneficial Nat'l Bank v. Anderson,
539 U.S. 1, 6 (2003) (internal quotation marks omitted);
see also Merrell Dow Pharms. Inc. v. Thompson, 478
U.S. 804, 808 (1986) (“Under our longstanding
interpretation of the current statutory scheme, the question
whether a claim ‘arises under' federal law must be
determined by reference to the ‘well-pleaded
complaint.'” (citation omitted)). Within the
confines of the well-pleaded complaint rule, there are two
paths to federal court under Section 1331: (1) federal
claims, i.e., cases where federal law creates the cause of
action; and (2) state causes of action that implicate
“significant federal issues.” Eastman,
438 F.3d at 550; Grable & Sons Metal Prods., Inc. v.
Darue Eng'g & Mfg., 545 U.S. 308, 312 (2005);
Franchise Tax Bd. v. Constr. Laborers Vacation Tr. for S.
Cal., 463 U.S. 1, 27-28 (1983).
first path is simple and covers the “vast majority of
cases that come within the district courts' original
jurisdiction . . . .” Franchise Tax Bd., 463
U.S. at 9. A cause of action is created by federal law where
federal law provides a right to relief. Eastman, 438
F.3d at 550. The second path, which is known as the
“substantial-federal-question doctrine, ” is more
complicated. The Supreme Court has found that “a case
may arise under federal law ‘where the vindication of a
right under state law necessarily turn[s] on some
construction of federal law.'” Merrell Dow
Pharms., 478 U.S. at 808-09 (quoting Franchise Tax
Bd., 463 U.S. at 9). That being said, “the mere
presence of a federal issue in a state cause of action does
not automatically confer federal-question
jurisdiction.” Id. at 813. The
substantial-federal-question doctrine confers jurisdiction
only if the following elements are met: (1) the state-law
claim necessarily raises a disputed federal issue; (2) the
federal interest in the issue is substantial; and (3) the
exercise of jurisdiction does not disturb any congressionally
approved balance of federal and state judicial
responsibilities. Mikulski v. Centerior Energy
Corp., 501 F.3d 555, 568 (6th Cir. 2007) (citing
Grable & Sons, 545 U.S. at 313).
first path does not lead LSM to federal court because Briggs
is not suing LSM under the ADA. Title III of the ADA is the
only title under which Briggs could bring an ADA
claim.It is well settled that Title III does not
provide a private cause of action for monetary damages.
See, e.g., Smith v. Wal-Mart Stores, Inc.,
167 F.3d 286, 293 (6th Cir. 1999) (recognizing that Title III
enforcement statute, 42 U.S.C. § 12188, which
incorporates the remedies of 42 U.S.C. § 2000a-3(a),
does not include money damages); see also Ajuluchuku v.
Yum! Brand, Inc., No. 3:05CV-826-H, 2006 U.S. Dist.
LEXIS 34301, at *4 (W.D. Ky. May 23, 2006) (citations
omitted). Briggs seeks only monetary damages from LSM and
thus cannot be bringing suit under Title III.
does the second path lead LSM to federal court. As to the
first element of the substantial-federal-question test,
Briggs apparently concedes that her negligence per se theory
necessarily raises a federal issue that is actually disputed,
but the Court is not convinced. The doctrine of negligence
per se allows a plaintiff to substitute the general standard
of care with a statutory standard of care, Lewis v. B
& R Corp., 56 S.W.3d 432, 438 (Ky. App. 2001), if:
“the plaintiff comes within the class of persons
intended to be protected by the statute [alleged to have been
violated] . . .[;] [t]he statute [is] specifically intended
to prevent the type of occurrence that took place . . . [;]
[and] the violation [of the statute] [is] a substantial
factor in causing the result.” McCarty v. Covol
Fuels No. 2, LLC, 476 S.W.3d 224, 227-28 (Ky. 2015)
(internal quotation marks omitted) (citations omitted).
Briggs alleges negligence per se based on LSM's alleged
violation of KRS 198B.260. KRS 198B.260 in relevant part
(1) The [department] . . . shall promulgate administrative
regulations . . . applicable to all new and altered buildings
which shall establish requirements for making all buildings
accessible to and usable by persons with a disability . . . .
(2) The administrative regulations promulgated by the
department shall be consistent with the Federal 1991
Americans with Disabilities Act and the American Disabilities
KRS 198B.260(1)-(2). KRS 198B.260(2) adopts the ADA and makes
it part of Kentucky law. See Conley v. Nikken, No.
2002-CA-001849-MR, 2004 Ky. App. Unpub. LEXIS 740, at *5 (May
7, 2004) (explaining that the plaintiff alleged
“negligence per se on the basis that [the defendant]
violated the ADA by failing to remove the architectural
barrier which caused her injury . . . in violation of the ADA
as adopted in Kentucky by KRS 198B.260(2).” (citations
omitted)); seealso Smith, 167 F.3d at 293
(“A state can incorporate requirements of federal law
into its law . . .”). As a result, Briggs references
the ADA in the Complaint merely to establish negligence per