Allen v. Gantt et al

Filing 45

Order that Allens claims against Gantt are dismissed without prejudice, as set out. Signed by Judge Kristi K. DuBose on 6/28/2011. (cmj)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
NORTHERN DIVISION
TAMELA ALLEN,
Plaintiff,

)
)

v.

)

THE CITY OF MARION, ALABAMA
and DONALD GANTT,

)

Defendants.

CIVIL ACTION NO. 2:10-0474-KD-B

)
ORDER

This action is before the Court on sua sponte review of its supplemental jurisdiction over
Plaintiff Tamela Allen’s state claims. Pursuant to 28 U.S.C. ' 1367(c)(3), this Court may decline
to exercise its supplemental jurisdiction when “the district court has dismissed all claims over
which it has original jurisdiction”.
Allen invoked this Court’s jurisdiction pursuant to 28 U.S. C. § 1331, 1343(a)(3) and (4),
and 42 U.S.C. § 1983, and alleged deprivation of rights guaranteed by the Fourth and Fourteenth
Amendments to the United States Constitution (doc. 1). Allen brought Counts One, Two, Five,
and Six against the City of Marion pursuant to 42 U.S.C. § 1983. Allen invoked this Court’s
supplemental jurisdiction under 28 U.S.C. § 1367, over state law claims which arise from the
same facts and circumstances. Allen brought Count Three for assault and battery, Count Four for
assault, Count Seven for infliction of emotional distress, and Count Eight for tort of outrage
against Donald Gantt in his individual capacity pursuant to the laws of the State of Alabama.
By separate order, this Court dismissed Allen’s claims against the City of Marion (doc.
44). Since all claims over which this Court had original jurisdiction have been dismissed, the
Court declines to exercise its supplemental jurisdiction. In that regard, the Court of Appeals for

the Eleventh Circuit has explained that “if the federal claims are dismissed prior to trial, Gibbs
strongly encourages or even requires dismissal of state claims.” Mergens v. Dreyfoos, 166 F.3d
1114, 1119 (11th Cir.) (citing United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966)), cert.
denied, 528 U.S. 820 (1999); Arnold v. Tuskegee University, 212 Fed.Appx. 803, 811 (11th Cir.
2006) (“When the district court has dismissed all federal claims from a case, there is a strong
argument for declining to exercise supplemental jurisdiction over the remaining state law
claims”) (citing Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n. 7, 108 S.Ct. 614, 619 n. 7
(1988)).
Accordingly, Allen’s claims against Gantt are dismissed without prejudice. See Dukes
v. State of Georgia, 212 Fed.Appx. 916, 917 (11th Cir. 2006) (citing Crosby v. Paulk, 187 F.3d
1339, 1352 (11th Cir.1999) (holding that if the district court decides to dismiss pendent state-law
claims, “then they should be dismissed without prejudice so that the claims may be refiled in the
appropriate state court”).
The incidents giving rise to this complaint occurred on August 30, 2008. The limitation
period for Allen’s claims for assault and battery and assault are governed by Ala. Code § 6-2-34
(1975) which sets a six year period of limitation for actions for “any trespass to person or liberty,
such as false imprisonment or assault and battery[.]” Allen’s claims for infliction of emotional
distress and tort of outrage are governed by a two year limitation period. See Chaney v. Ala
West-AL, LLC, 22 So.3d 488, 499 (Ala. Civ. App. 2008) (recognizing that a two year statute of
limitation applies to claims of intentional infliction of emotional distress and tort of outrage)
(citing Continental Cas. Ins. Co. v. McDonald, 567 So.2d 1208, 1215 (Ala. 1990).
However, these claims are subject to the tolling provision of 28 U.S.C. § 1367(d). Thus,
2

Allen’s limitation period “shall be tolled while the claim is pending and for a period of 30 days
after it is dismissed unless State Law provides for a longer tolling period”. 28 U.S.C. § 1367(d);
Dukes, 212 Fed.Appx. at 917 (“Furthermore, under § 1367, the statute of limitations of the
remaining pendent claims ‘shall be tolled while the claim[s are] pending and for a period of 30
days after [they are] dismissed unless State law provides for a longer tolling period.’”) (quoting
28 U.S.C. § 1367(d)); see also Rester v. McWane, Inc., 2007 WL 80826, *2-3 (Ala. 2007)
(explaining that limitation periods are tolled by filing the federal action and tolled when the
plaintiff re-files the same claims in state court as were brought in federal court but not as to
claims not asserted in the federal action) (citing Roden v. Wright, 611 So.2d 333 (Ala. 1992)).
DONE and ORDERED this 28th day of June, 2011.

s / Kristi K. DuBose
KRISTI K. DuBOSE
UNITED STATES DISTRICT JUDGE

3