Fuller et al v. Alabama Department of Transportation
MEMORANDUM OPINION. Signed by Judge Virginia Emerson Hopkins on 8/29/2017. (JLC)
2017 Aug-29 AM 09:25
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SAMUEL KEITH FULLER,
individually and as executor of
the Estate of James R. Fuller,
deceased, et al,
ALABAMA DEPARTMENT OF
by and through the Director of
Alabama Department of
Transportation, et al.
Civil Action No.:
This case comes before the Court on the Motion To Remand filed by the
Plaintiff. (Doc. 8). This inverse condemnation action was removed to this Court on
July 20, 2017, by the Defendants based on 28 U.S.C. § 1441, which allows the
removal of “any civil action brought in a State court of which the district courts of the
United States have original jurisdiction.” 28 U.S.C.A. § 1441(a).1 On July 11, 2017,
the Plaintiffs amended their complaint to “make [a] claim under the Fifth Amendment
There is no merit to the Plaintiffs’ argument that this case was improperly removed
pursuant to 28 U.S.C. § 1443. (Doc. 8 at 2-3). That section is cited only once in the Notice of
Removal. (See doc. 1 at 3, ¶8). It is clearly a typo. The notice states elsewhere that the removal is
based on section 1441. (See doc. 1 at 1; dc. 1 at 4, ¶13).
to the United States Constitution,” and claimed that they were “further entitled to
recover under the United States Constitution and 42 U.S.C. § 1983.” (Doc. 1-1 at 1011). Thus, the amendment added a claim which “[arose] under the Constitution, laws,
or treaties of the United States,” creating original jurisdiction in this court. 28 U.S.C.
§ 1331. Since this Court has original jurisdiction over that claim, it was properly
removable under 28 U.S.C. § 1441(a).
The Amended Complaint also sets out an inverse condemnation claim under
state law. Because this Court has original jurisdiction over the Section 1983 claim,
it has supplemental jurisdiction over the state law claim since it is “so related to
claims in the action within such original jurisdiction [it forms] part of the same case
or controversy under Article III.” 28 U.S.C.A. § 1367(a). It too is removable under
28 U.S.C. § 1441(a). See also, § 1441(c)(1) (2).
In their Motion To Remand, the Plaintiffs cite to Williamson Cty. Reg'l
Planning Comm'n v. Hamilton Bank of Johnson City, 473 U.S. 172, 194–95, 105 S.
Ct. 3108, 3120–21, 87 L. Ed. 2d 126 (1985) (doc. 8 at 2), a case in which the United
States Supreme Court held that
[a] taking claim is not yet ripe [if the Plaintiff] did not seek
compensation through the procedures the State has provided for doing
so. The Fifth Amendment does not proscribe the taking of property; it
proscribes taking without just compensation. Nor does the Fifth
Amendment require that just compensation be paid in advance of, or
contemporaneously with, the taking; all that is required is that a
reasonable, certain and adequate provision for obtaining compensation
exist at the time of the taking. . . . [I]f a State provides an adequate
procedure for seeking just compensation, the property owner cannot
claim a violation of the Just Compensation Clause until it has used the
procedure and been denied just compensation.
Williamson, 473 U.S. at 194–95 (internal citations and quotations omitted). Very
recently, the Supreme Court refused to issue a writ of certiorari to reconsider this
holding. See, Arrigoni Enterprises, LLC v. Town of Durham, Conn., 136 S. Ct. 1409,
194 L. Ed. 2d 821 (2016).
It is strange that, at this stage, the Plaintiffs would note the lack of ripeness of
the federal claim, which their amendment added to this case, and which caused its
removal to be proper. That having been said, the Plaintiffs are correct.2 On the face
of the allegations in the Amended Complaint, the federal claim is not yet ripe.
Accordingly, the Court will sua sponte DISMISS that claim without prejudice.
Additionally, having dismissed all claims over which it has original jurisdiction, and
given the stage of the proceedings, the Court declines to exercise supplemental
jurisdiction over the remaining state law claim (28 U.S.C. § 1367(c)(3)). Accordingly,
by separate Order, the Court will REMAND this case to the Circuit Court of Calhoun
The Defendants do not dispute that the federal claim is not yet ripe. Indeed, they argue
that the federal claim is based on “inapplicable federal laws.” (Doc. 13 at 3). They also argue,
correctly, that this situation is “a construct created by Plaintiffs’ own actions.” (Doc. 13 at 3).
DONE and ORDERED this 29th day of August, 2017.
VIRGINIA EMERSON HOPKINS
United States District Judge
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