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Malone v. Weyer

United States District Court, W.D. Kentucky, Louisville Division

July 5, 2019

NATALIE MALONE and LARRY JORDAN, Father and Administrator for the Estate of Demonjhea Jordan, Plaintiffs,
JOSHUA WEYER et al., Defendants.


          David J. Hale, Judge.

         Plaintiffs Natalie Malone and Larry Jordan allege that their son, Demonjhea Jordan, was unlawfully shot and killed by officers of the Louisville Metro Police Department. (Docket No. 1-2) Defendant Louisville/Jefferson County Metro Government removed the case from Jefferson Circuit Court, invoking this Court's federal-question jurisdiction on the ground that Plaintiffs allege violations of the U.S. Constitution.[1] (D.N. 1, PageID # 1) Louisville Metro then moved to dismiss the complaint for failure to state a claim. (D.N. 6) In response, Plaintiffs argued that they did not assert any federal claims. (D.N. 7) Soon thereafter, Plaintiffs filed a motion to remand, seeking reimbursement of their costs and expenses incurred in connection with removal. (D.N. 9) Plaintiffs have since moved for leave to amend their complaint to add a claim of intentional infliction of emotional distress. (D.N. 19) Because no federal question is presented in this case, the Court will grant Plaintiffs' motion to remand and deny the remaining motions as moot. The Court will also grant Plaintiffs' request for fees for the reasons explained below.


         Plaintiffs' complaint alleges that Defendants Joshua Weyer, Benjamin Dean, Kody Despain, and Joseph Fox, as LMPD officers and Louisville Metro employees, shot and killed Demonjhea Jordan without warning or justification. (D.N. 1-2, PageID # 9-13) Plaintiffs assert claims of assault, battery, excessive force, negligence, and wrongful death. (Id., PageID # 13-18) Although the complaint alleges under each of the first four claims that the Officer Defendants violated Demonjhea Jordan's Fourth, Fifth, and Fourteenth Amendment rights, it also states that Plaintiffs intend to “assert[] state common law claims only” and that the “[r]eferences to the Defendants' violations of the United States Constitution are made solely for purposes of pleading that the Officer Defendants did not act in good faith and therefore are not entitled to qualified immunity under state law.” (Id., PageID # 11; see, e.g., D.N. 1-2, PageID # 13 (alleging that Demonjhea Jordan had a right under the U.S. and Kentucky Constitutions “to be free from a deprivation of his life, liberty or property without due process of law”; that the Officer Defendants violated those rights; and that “[t]he conduct of the Officer Defendants violated Mr. Jordan's clearly established constitutional rights of which a reasonable officer would have known”); see also id., PageID # 14-18 (same)) Nevertheless, Defendants maintain that the complaint presents a federal question giving rise to subject-matter jurisdiction. (D.N. 13)


         A. Remand

         In general, a case may be removed to federal court if it falls within the Court's original jurisdiction. City of Warren v. City of Detroit, 495 F.3d 282, 286 (6th Cir. 2007) (citing Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987)); see 28 U.S.C. § 1441(a). The Court has federal-question jurisdiction where “(1) the plaintiff[s'] cause of action is created by federal law[;] (2) ‘some substantial, disputed question of federal law is a necessary element . . . of the well-pleaded state claim[';] or (3) the ‘claim is “really” one of federal law.'” City of Warren, 495 F.3d at 286 (internal citations omitted) (quoting Franchise Tax Bd. v. Constr. Laborers Vacation Tr., 463 U.S. 1, 8-9, 13 (1983)). The fact that a case will likely involve a defense raising issues of federal law cannot serve as the basis for removal, “even if the defense is anticipated in the plaintiff's complaint.” Rivet v. Regions Bank of La., 522 U.S. 470, 475 (1998) (quoting Franchise Tax Bd., 463 U.S. at 14)); see also Mikulski v. Centerior Energy Corp., 501 F.3d 555, 561 (6th Cir. 2007) (“Although such allegations show that very likely, in the course of the litigation, a question under the Constitution would arise, they do not show that the suit, that is, the plaintiff's original cause of action, arises under the Constitution.” (quoting Franchise Tax Bd., 463 U.S. at 10)). Nor is it relevant that the facts alleged could also support a federal claim; “[t]he party who brings a suit is master to decide what law he will rely upon.” Eastman v. Marine Mech. Corp., 438 F.3d 544, 550 (6th Cir. 2006) (quoting The Fair v. Kohler Die & Specialty Co., 228 U.S. 22, 25 (1913)); see also Loftis v. UPS, 342 F.3d 509, 515 (6th Cir. 2003) (“Generally, a state law claim cannot be ‘recharacterize[d]' as a federal claim for the purpose of removal.” (quoting Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 64 (1987))). The Sixth Circuit has instructed that “[a] reference to the U.S. Constitution in a complaint should be read in the context of the entire complaint to fairly ascertain whether the reference states a federal cause of action.” Warthman v. Genoa Twp. Bd. of Trs., 549 F.3d 1055, 1063 (6th Cir. 2008) (citing Merrell Dow Pharmaceuticals Inc. v. Thompson, 478 U.S. 804, 813 (1986)).

         According to Defendants, “the crux of Plaintiffs' Complaint is that Mr. Jordan was unlawfully killed by the Defendant Officers in violation of his constitutional rights to be free from an unreasonable search and seizure and deprivation of life, liberty, or property without due process of law, ” and “[b]ecause it is alleged that the Officer Defendants used greater force than necessary or reasonably believed to be necessary, the Complaint rests on a federal question.” (D.N. 13, PageID # 125) Defendants do not address Plaintiffs' explicit attempt to limit their claims to state law, except to declare it “irrelevant.” (D.N. 13, PageID # 125)

         Whether the Officer Defendants knowingly violated Demonjhea Jordan's rights is relevant for purposes of qualified official immunity under Kentucky law, however. “To defeat qualified official immunity, the plaintiff must establish that the defendant's ‘act was not performed in good faith.'” Scheffler v. Lee, 752 Fed.Appx. 239, 244 (6th Cir. 2018) (quoting Yanero v. Davis, 65 S.W.3d 510, 522 (Ky. 2001)). And

[t]o show that a peace officer acted in bad faith when making an on-the-spot judgment call, the complainant must demonstrate that the officer “knew or reasonably should have known that the action he took within his sphere of official responsibility would violate” the complainant's rights or that the officer “took the action with the malicious intention to cause a deprivation of constitutional rights or other injury.”

Id. (quoting Haugh v. City of Louisville, 242 S.W.3d 683, 686 (Ky. Ct. App. 2007)). “Thus, the qualified official immunity analysis under Kentucky law ‘tracks the inquiry for objective reasonableness and qualified immunity' under federal law.” Id. (quoting Woodcock v. City of Bowling Green, 679 Fed.Appx. 419, 425 (6th Cir. 2017)).

         Read in context, then, Plaintiffs' allegations that the Officer Defendants knowingly violated Demonjhea Jordan's constitutional rights do not state a federal cause of action. See Warthman, 549 F.3d at 1063. Rather, Plaintiffs were “free to choose whether to rely on state or federal law, ” City of Warren, 495 F.3d at 287, and as evidenced by the disclaimer in paragraph 15 of the complaint, they chose state law. Their causes of action-assault, battery, excessive force, negligence, and wrongful death-are not “created by federal law”; nor do those claims contain, as a “necessary element, ” “some substantial, disputed question of federal law.”[2] Id. at 286 (citation omitted); see Rivet, 522 U.S. at 475. And there is nothing to suggest that any of Plaintiffs' claims “is ‘really' one of federal law.” City of Warren, 495 F.3d at 286 (citation omitted). As noted by the Kentucky Supreme Court (in a case cited by Defendants), a plaintiff who alleges police misconduct may bring a “traditional tort action[]” under state law. St. Luke Hosp., Inc. v. Straub, 354 S.W.3d 529, 538 (Ky. 2011). Here, Plaintiffs have done just that, asserting clearly labeled state-law claims and explaining the complaint's constitutional references in a manner consistent with Kentucky law. In sum, the complaint does not present a federal question. The Court therefore lacks subject-matter jurisdiction and must remand the case. See 28 U.S.C. § 1447(c).

         B. Fees and Costs

         Pursuant to § 1447(c), “[a]n order remanding the case may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal.” An award under § 1447(c) is appropriate “only where the removing party lacked an objectively reasonable basis for seeking removal”; if “an objectively reasonable basis exists, fees should be denied.” Martin v. Franklin Capital Corp., 546 U.S. 132, 141 (2005) (citations omitted). “A defendant lacks an objectively reasonable basis for removal when well-settled case law makes it clear that federal courts lack jurisdiction to hear the case.” A Forever Recovery, Inc. v. Twp. of Pennfield, 606 Fed.Appx. 279, 281 (6th Cir. 2015). “[U]nusual circumstances, ” such as “a plaintiff's delay in seeking remand or failure to disclose facts necessary to determine jurisdiction, ” may ...

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