Scroggins v. McGee et al
MEMORANDUM ORDER granting 29 Defendants' Motion to Dismiss; dismissing Plaintiff's claims under 42 U.S.C. § 1983 with prejudice; dismissing Plaintiff's state law claims without prejudice; denying as moot 31 Defendants' Motion to Continue and 32 Motion in Limine. Signed by Magistrate Judge J. Thomas Ray on 9/12/11. (hph)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
NO. 4:10CV01121 JTR
WAYNE MCGEE, individually and in his
official capacity as the Mayor of Lonoke, and
the CITY OF LONOKE
Defendants Wayne McGee and the City of Lonoke have filed a Motion to
Dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. (Docket
entry #29). They argue that: (1) Plaintiff Tony Scroggins’s § 1983 claims are barred
by the applicable statute of limitations; and (2) the Court should decline to exercise
supplemental jurisdiction over his remaining state law claims. Before addressing the
merits of this Motion, it is important to understand the procedural history of this case,
including the state court lawsuit that preceded it.
State Court Litigation
On March 12, 2007, Scroggins filed a complaint, in Lonoke County Circuit
Court, alleging that Defendants1 unlawfully terminated his employment “in January
of 2007.” (Docket entry #29-1). His complaint alleged only two claims against
Defendants: (1) “COUNT I,” a violation of the Arkansas Whistleblower’s Act, Ark.
Code Ann. § 21-1-601 et seq.; and (2) “COUNT II,” failure to pay “last wages” in
violation of Ark. Code Ann. § 11-4-405. (Docket entry #29-1 at ¶ 2 and ¶¶29 through
The parties then proceeded to conduct all of their discovery in the state court
action, with document production and depositions occurring between 2007 through
2009. See docket entry #15-1 (various depositions and exhibits attached to Plaintiff’s
Statement of Disputed Facts).
Over three years later, on June 3, 2010, Scroggins filed an amended complaint.
The only new factual allegations in the amended complaint were contained in
paragraphs 21 and 22:
21. Defendants were motivated by Plaintiff’s report of a violation of
city rules in terminating him that also constituted speech on a matter of
22. Alternatively, Defendant McGee made Scroggins keeping his
public job contingent upon political support of McGee for Mayor.
Scroggins named as defendants “WAYNE MCGEE, individually and in his
official capacity as the Mayor of Lonoke, and the CITY OF LONOKE.” These are the
same Defendants named in this action.
(Docket entry #29-2 at ¶¶21 and 22). The amended complaint added two new state law
claims: “COUNT III — ACRA” (docket entry #29-2 at ¶¶37-40) and “COUNT IV —
FELONY TORT” (docket entry #29-2 at ¶¶41 through 44).
The heading of “COUNT III — ACRA” makes it clear that Scroggins is
alleging a violation of the Arkansas Constitution under the Arkansas Civil Rights Act.
The allegations in Count III make no reference to any federal constitutional provision,
federal right, or federal statute. Thus, the “ACRA” heading can only be construed to
mean that his “free speech” and “political affiliation” claims are based solely on the
Arkansas Constitution. See Ark. Code Ann. § 16-123-105(a) (“Every person who,
under color of any [law] . . . of this state . . . causes to be subjected, any person within
the jurisdiction thereof to the deprivation of any rights, privileges, or immunities
secured by the Arkansas Constitution shall be liable to the party injured”).
On July 3, 2010, only one month after filing the amended complaint in state
court, Scroggins filed a motion requesting a voluntary dismissal. (Docket entry #293). On July 13, 2010, the Lonoke County Circuit Court entered an order dismissing
the state court action, without prejudice. (Docket entry #29-4).
On August 6, 2010, three weeks after voluntarily dismissing the state court
action, Scroggins filed his Complaint initiating this action. (Docket entry #1). To
support federal subject-matter jurisdiction, Scroggins added a § 1983 claim to the
claims previously asserted in the state court action:
Defendants terminated Plaintiff in violation of his rights, and
accordingly this action is brought for violation of the Arkansas
Whistleblowers Act (Ark. Code § 21-1-601, et seq.), 42 USC 1983, and
the Arkansas Civil Rights Act, and for failure to pay last wages in
violation of Ark. Code § 11-4-405. Consequently, this Court has subject
matter jurisdiction under 28 USC 1331[.]
(Docket entry #1 at ¶2) (emphasis added).
The factual allegations supporting the claims in Scroggins’s federal Complaint
are identical to the allegations supporting the claims in the state court amended
complaint. Compare docket entry #1 ¶¶4 through 30 with docket entry #29-2 ¶¶4
through 30. The only substantive change appears in “COUNT III,” and is emphasized
COUNT III — ACRA
37. Plaintiff realleges the foregoing paragraphs, as though fully stated
38. Defendant has wrongfully discharged Plaintiff by terminating him
for speech on a matter of public concern and by terminating him based
on political affiliation in violation of the Arkansas and Federal
Constitution, as allowed by 42 U.S.C. 1983.
39. As a direct and proximate cause of Defendants’ act or omissions
as alleged herein, Plaintiff has suffered mental, physical, and emotional
injury, lost wages, lost fringe benefits, lost earning capacity, and has
incurred expenses that would not otherwise have been incurred.
Plaintiff seeks punitive damages.
(Docket entry #1 at ¶¶37 through 40) (emphasis added).
This case is scheduled for a jury trial on September 27, 2011. On August 25,
2011, Defendants filed the pending Rule 12(b)(6) Motion to Dismiss (docket entry
#29) and Brief in Support (docket entry #30). In these motion papers, Defendants
argue that the applicable three-year statute of limitations bars Scroggins’s ACRA
claims and his § 1983 claims. They also argue that the Court should decline to
exercise supplemental jurisdiction over Scroggins’s remaining state law claims, or,
alternatively, “transfer” those claims to the Lonoke County Circuit Court.2
In Scroggins’s Response (docket entry #35) and Brief in Support (docket entry
#36), he argues that the Court should deny Defendants’ Motion to Dismiss because:
(1) “the [Arkansas] savings statute applies;” (2) “the filing of the lawsuit tolled the
Statute;” and (3) “this is a classic case of relation back.” (Docket entry #36 at 1).
Alternatively, Scroggins contends that: (1) even if the Court dismisses his § 1983
claims, it should exercise supplemental jurisdiction over the remaining state law
claims; and (2) Defendants are “barred by laches” from asserting their statute of
limitations argument. (Docket entry #36 at 2).
Of course, the Court lacks authority to transfer or remand the state law claims
because this action was not removed from state court.
For the reasons discussed below, the Court: (1) concludes that the applicable
three-year statute of limitations bars Scroggins’s federal constitutional claims under
42 U.S.C. § 1983; and (2) declines to exercise supplemental jurisdiction over his
remaining state law claims. Thus, Defendants’ Motion to Dismiss will be granted.
“Untimeliness” Of Defendants’ Motion To Dismiss
According to Scroggins, the Court should use the equitable doctrine of laches
to bar Defendants from raising their statute of limitations defense in a Motion to
Dismiss filed this late in the proceedings. Certainly, it is difficult to understand why
defense counsel waited until fifty-five days after the expiration of the dispositive
motions deadline established in the January 18, 2011 Scheduling Order and only thirty
days before trial to file a dispositive motion raising the statute of limitations issue;
especially after Defendants properly raised and preserved the “statute of limitations”
as one of their affirmative defenses in their Answer.3 (Docket entry #2 at ¶30).
Apparently, defense counsel awoke to discover the statute of limitations argument
only after he had filed a Motion for Summary Judgment (docket entry #11) on
February 7, 2011, which raised a number of meritless arguments all of which were
Defense counsel now concedes that the “Motion [to Dismiss] should have been
filed early on in this case[.]” (Docket entry #31at ¶2).
later rejected by the Court. (Docket entry #17).
But for controlling legal authority to the contrary, it would be hard to resist
denying Defendants’ Motion to Dismiss based solely on the dilatory conduct of their
lawyer. As indicated earlier, Defendants unquestionably raised the statute of
limitations as an affirmative defense in their Answer.4 Even if the Court denied
Defendants’ Motion, based on defense counsel’s failure to comply with the January
18, 2011 Scheduling Order, Defendants still would have the right to raise their statute
of limitations defense at trial in a Rule 50 Motion for Judgment as a Matter of Law.5
See Long v. Howard University, 550 F.3d 21, 24-25 (D.C. Cir. 2008) (defendant who
asserts a statute of limitations defense in its answer may raise the defense at trial);
Pessotti v. Eagle Mfg. Co., 774 F. Supp. 669, 677 (D. Mass. 1990) (“there is no valid
In paragraph 30 of their Answer, Defendants plead the following affirmative
defense: “Defendants plead all affirmative defenses which may be applicable to this
claim pursuant to Ark.R.Civ.P. Rule 8(c), including, but not limited to, comparative
fault, estoppel, laches, statute of limitations, and waiver.” (Docket entry #2 at ¶30).
In urging the Court to deny Defendants’ Motion to Dismiss, Plaintiff’s counsel
should be mindful of the Chinese proverb that “you should be careful what you wish
for, least you get it.” If the Court denied Defendants’ Motion to Dismiss on the ground
it was filed too late, it would certainly be required to grant Defendants’ Motion for
Judgment as a Matter of Law because, as explained below, the statute of limitations
clearly bars Plaintiff’s § 1983 claims. Tactically, this would place Plaintiff in a very
difficult position, since the jury would know the Court had dismissed those claims,
something that would certainly work to Plaintiff’s detriment as the jury considered the
merits of his remaining state law claims.
reason why any issue that may properly be raised on summary judgment (including
a pure issue of law) may not also be raised on a motion for directed verdict”). Finally,
because the statute of limitations issue is purely a question of law, judicial economy
strongly favors the resolution of that issue prior to trial.6 Thus, the Court concludes
that, notwithstanding defense counsel’s dilatory conduct, it must reach and decide the
merits of the statute of limitations issue raised in Defendants’ Motion to Dismiss.
Defendants’ statute of limitations argument is based on the allegations of fact
set forth in Scroggins’s Complaint. Thus, it can be properly asserted in a Rule 12(b)(6)
motion to dismiss. See Walker v. Barrett, ___ F.3d ___, 2011 WL 3611571 (8th Cir.
2011) (“as a general rule the possible existence of a statute of limitations defense is
not ordinarily a ground for Rule 12(b)(6) dismissal unless the complaint itself
establishes the defense”) (internal quotations omitted).
While Defendants’ Rule 12(b)(6) Motion does not comply with the general
timing requirement that a Rule 12(b)(6) motion precede a responsive pleading, it does
not constitute a basis for the Court to deny the Motion:
A strict interpretation of the timing provisions’s language leads to the
conclusion that the district judge must deny any Rule 12(b) motion made
after a responsive pleading is interposed as being too late. However,
federal courts have allowed untimely motions if the defense has been
previously included in the answer. In this context, the motion becomes
tantamount to a preliminary hearing under Rule [12(i)]. Moreover, under
Rule 12(h) the defenses of lack of subject matter jurisdiction, Rule
12(b)(1), failure to state a claim upon which relief can br granted, Rule
12(b)(6) . . . are preserved from the waiver mechanism by the express
terms of subdivision (h). Thus, motions raising any of these matters may
be considered by the court even when interposed after the responsive
pleading has been filed, although technically they are no longer Rule
5 WRIGHT & MILLER, Federal Practice and Procedure § 1361 (Civil 3d ed. 2004).
Plaintiff’s § 1983 Claims Are Time Barred
The only basis for federal subject-matter jurisdiction in this case arises from the
allegation in Scroggins’s Complaint that Defendants “wrongfully discharged. . . him
for speech on a matter of public concern and . . . based on political affiliation in
violation of the . . . Federal Constitution, as allowed by 42 USC 1983.”7 (Docket entry
#1 at ¶38). That claim accrued “in January of 2007,” the month and year in which
Scroggins alleges he was unlawfully terminated. (Docket entry #1 at ¶17).
Because § 1983 does not contain a statute of limitations, the limitations period
for such an action is “borrowed” from the personal injury statute of limitations of the
state where the § 1983 claim arose. Ketchum v. City of West Memphis, 974 F.2d 81,
82 (8th Cir. 1992). Arkansas’s statute of limitations for personal injury actions is three
years. See Ark. Code Ann. § 16-56-105(3).
Words have meanings, and lawyers should choose them carefully in stating the
causes of actions set forth in a complaint or amended complaint. In Scroggins’s
original state court complaint, filed on March 12, 2007, he only asserted two causes
of action against Defendants: (1) a violation fo the Arkansas Whistle Blower’s Act;
and (2) a violation of Ark. Code Ann. § 11-4-405, based on Defendants’ alleged
Those federal claims are pleaded under “COUNT III – ACRA,” and are
jumbled together with other allegations of violations of the ACRA. (Docket entry #1
at ¶¶ 37-39).
failure to pay Scroggins’s “last wages.” (Docket entry #29-1 at ¶¶29-34).
Over three years later, on June 3, 2010, Scroggins filed an amended complaint
in the state court action, which alleges two new state law claims arising from
Defendants’ decision to terminate his employment: (1) a violation of the ACRA; and
(2) a violation of the Arkansas “crime victims civil liability statute,” Ark. Code Ann.
§ 16-118-107, based on Defendants’ conditioning Scroggins’s continued employment
on his political support of Defendant McGee in his race for Mayor of Lonoke.8
(Docket entry #29-2 at ¶¶37-44).
Count III of the amended complaint is explicitly headed “ACRA.” The only
substantive allegations in Count III are contained in ¶38 which alleges that:
“Defendant has wrongfully discharged Plaintiff by terminating him for speech on a
matter of public concern and by terminating him based on political affiliation.”
(Docket entry #29-2 at ¶38). Count III makes no mention of the United States
Constitution, § 1983, or any other federal statute. However, the heading itself makes
it clear that the only asserted cause of action in ¶38 is for Defendants’ alleged
“Count IV” of the amended complaint does not reference the Arkansas “crime
victims civil liability statute” or cite to Ark. Code Ann. § 16-118-107. Scroggins
simply labels the claim as a “felony tort.” Scroggins first explicated the legal theory
behind his “felony tort” count in his Response to Defendants’ Motion for Summary
Judgment. (Docket entry #16 at 8).
violation of the ACRA.9
Of course, the allegations in ¶38 of the amended complaint also would have
supported a cause of action under § 1983 and the First Amendment, something
Scroggins’s counsel knew or should have known. This raises an obvious question:
Why did Scroggins elect not to assert a cause of action under § 1983 when he filed the
amended complaint in Lonoke County Circuit Court. Perhaps, it was because it would
have allowed Defendants the right to remove the case to federal court. Perhaps, it was
because the statute of limitations had already expired on that claim. Perhaps, it was
simply an oversight. Regardless of the reason, however, one thing is crystal clear:
Scroggins’s amended complaint does not assert a cause of action under § 1983 or any
other federal statute.10
Scroggins concedes as much in his Brief in Support of Response to Motion to
Dismiss: “The State Court Complaint stated facts actionable under federal law,
although no federal claim was asserted.” (Docket entry #36 at 1) (Emphasis added).
Scroggins could have pleaded his § 1983 claims in the state court action. State
courts have concurrent jurisdiction to adjudicate federal claims under § 1983. See
Maine v. Thiboutot, 448 U.S. 1, 11 (1980) (“§ 1983 actions may be brought in state
courts.”); Newton v. Etoch, 332 Ark. 325, 334, 965 S.W.2d 96, 100 (1998) (“§ 1983
establishes a federal cause of action to be enforced in either federal or state courts”).
By explicitly stating his Count III “speech” and “political affiliation” claims
under the heading “ACRA,” there is no doubt that they were solely brought under
state law for violations of the Arkansas Constitution. See Ark. Code Ann. § 16-123105(a); ARK. CONST Art. 2, Sec. 4 and 6. The Arkansas Supreme Court has
emphasized the distinct state law nature of free speech claims brought under the
Arkansas Constitution as violations of the ACRA. See Walters v. Dobbins, 2010 Ark.
The Arkansas savings statute, Ark. Code Ann. § 16-56-126, provides in subpart (a)(1) that: “If any action is commenced within the time respectively prescribed
in this act . . . or any other act , and the plaintiff therein suffers a nonsuit . . . the
plaintiff may commence a new action within one (1) year after the nonsuit suffered
. . . .” The Arkansas Supreme Court and the Eighth Circuit Court of Appeals have
made it clear that, under this statute, only the causes of action actually asserted in the
pleadings are “saved” and may be brought in a subsequent action filed within one year
of the nonsuit.
The Arkansas Supreme Court has explained that the “dismissal of a cause of
action without prejudice permits the bringing of a subsequent action for the same
cause.” Oliver v. Miller, 239 Ark. 1043, 1044, 396 S.W.2d 288, 289 (1965)
(emphasis added). The Eighth Circuit has noted that the Arkansas savings statute
“allows a party to file a new complaint within one year of a nonsuit as long as the
cause of action is the same in substance as the original complaint at the time the latter
260, 2010 WL 2131869 (2010) (declining to reach the merits of the appellants’ free
speech ACRA claims on appeal because the only cases they cited were federal cases
interpreting the First Amendment of the United States Constitution — “[appellants]
have failed to present this court with any convincing argument regarding when,
whether, or why we should apply the federal decisions cited when deciding whether
there has been a violation of one’s rights under our state constitution for purposes of
our Civil Rights Act”). Thus, a claim asserted under ACRA is separate and distinct
from a claim brought under § 1983.
was nonsuited.” Dillaha v. Yamaha Motor Corp., 23 F.3d 1376, 1377 (8th Cir. 1994)
(internal quotations and alterations omitted) (quoting Morgan Distrib. Co. v.
Unidynamic Corp., 868 F.2d 992, 994 (8th Cir.1989)).
In Dillaha, the plaintiff filed an Arkansas state court action pleading personal
injury claims against the defendant for “negligen[ce] in the design and manufacture”
of a go-kart. He non-suited the state court action, and later filed a federal complaint
“alleging causes of action for negligent design, negligent manufacture, failure to warn,
strict liability, and breach of warranty.” On appeal, the parties agreed that the breach
of warranty, failure to warn, and strict liability causes of action would be time-barred
unless they were saved by Ark. Code Ann. § 16-56-126. The Court held that, because
those claims were “distinct causes of action, requiring different elements of proof”
from the negligent design and negligent manufacturing claims pleaded in the state
court complaint, they “were time-barred because they were not pleaded in the state
complaint and, therefore, were not tolled by the savings statute.” Dillaha, 23 F.3d at
1378. See also Baker v. Chisom, 501 F.3d 920, 923 (8th Cir. 2007) (“Only causes of
action pleaded in the non-suited action are tolled by the [Arkansas] one-year savings
statute” — dismissing individual capacity § 1983 claims against the defendants as
time-barred and “unsaved” by Ark. Code Ann. § 16-56-126 because the earlier
complaint which had been non-suited asserted only official capacity § 1983 claims
against the same defendants) (citing Dillaha, supra).
On August 6, 2010, Scroggins asserted his § 1983 claims for the first time in
his Complaint initiating this action. Because his § 1983 claims accrued in January of
2007, he was attempting to assert those claims eight months after the expiration of the
three-year statute of limitations.11 Thus, absent tolling, his § 1983 claims were time
barred at the time he initiated this federal action.
First, Scroggins contends that his § 1983 claims are not time barred because
“the savings statute applies.” (Docket entry #36 at 1). As previously explained,
because Scroggins failed to assert a cause of action under § 1983 in the state court
action, there is no such claim to be “saved” pursuant to that statute. See Dillaha,
supra; Baker, supra. Thus, Scroggins’s reliance on the savings statute is misplaced.
Next, Scroggins argues that: “The filing of the lawsuit tolled the Statute. The
actual commencement of a suit is sufficient to stop running the of the Statute of
Limitations without any regard to, or dependence upon, any after diligence of the
plaintiff in its prosecution.” (Docket entry #36 at 1). Of course, this expansive
statement, which is not supported by any citation of legal authority, does not
In his Complaint, Scroggins alleges he was unlawfully terminated “in January
of 2007.” (Docket entry #1 at ¶17). In his deposition, he testified that he was fired on
January 10 or 11, 2007. (Docket entry #15-1 at 18). The precise day he was fired in
January of 2007 is inconsequential to resolving Defendants’ Motion to Dismiss.
substantively address the real issue: Does the mere act of filing a lawsuit toll the
statute of limitations on claims that are not mentioned, much less asserted, in the
In essence, Scroggins suggests that filing a state court action asserting only state
law claims tolls all statutes of limitations applicable to any unpleaded claims arising
from the allegations supporting the state law claims.
This argument is legally
unsupportable, contrary to the language in the Arkansas savings statute, which
repeatedly refers to saving “actions” and “causes,” and contrary to the Arkansas
Supreme Court and Eighth Circuit cases construing the savings statute. See Oliver,
supra; Dillaha, supra; Baker, supra.
Finally, Scroggins contends that his § 1983 claims “relate back” to the state
Arkansas is a fact pleading state. The State Court Complaint stated facts
actionable under federal law, although no federal claim was asserted.
The only cases Scroggins cites to support his argument stand for the
unremarkable proposition that the commencement of an action, rather than the
prosecution of the action to disposition, serves to toll that action’s limitations period.
See King & Houston v. State Bank, 13 Ark. 269, 1853 WL 492 (1853) (holding that
a bank that timely commenced a lawsuit on a promissory note did not have to bring
the defendant “into court” prior to the expiration of the limitations period); General
American Life Ins. Co. v. Cox, 215 Ark. 860, 223 S.W.2d 775 (1949) (ten-year statute
of limitations for issuance of a “writ of scire facias to revive a judgment” applied only
to the date of issuance of the writ and not the date that the “revivor judgment” was
Thus, this is a classic case of relation back.
(Docket entry #36 at 1).
While Scroggins makes no attempt to develop this argument, the theory of
relation back can only be applied to claims in an amended pleading “relat[ing] back
to the date of the original pleading[.]”13 See Fed. R. Civ. P. 15(c)(1). Here, Scroggins
is arguing that his § 1983 claims, which he asserted for the first time in his federal
Complaint, should relate back to allegations contained in his state court amended
complaint. This argument is contrary to well-established case law holding that relation
back principles have no application to the facts in this case. See Elzea v. Perry, 340
Ark. 588, 593 n.2, 12 S.W.3d 213, 216 n.2 (2000) (Ark. R. Civ. P. 15(c) “permits the
amendment of a pleading to ‘relate back’ to the date of the original pleading. Its
purpose is not to permit the relation back of an entirely separate lawsuit to a suit that
was properly dismissed and never appealed.”) (emphasis in original). See Rayo v.
State, 882 F. Supp. 37, 40 (N.D.N.Y. 1995) (“The relation back doctrine has
application only in instances where an original pleading is amended” and cannot
“relate back to prior proceedings which are not part of the action in question.”).14
Rule 15(c) of the Federal Rules of Civil Procedure establishes criteria
allowing an amended pleading to “relate back” to an original pleading.
One final point about “relation back” bears mentioning. In their Motion to
Dismiss, Defendants argue that Scroggins’s state law claims under the Arkansas Civil
Having concluded that Scroggins’s § 1983 claims should be dismissed, the
Court must now decide whether it should exercise supplemental jurisdiction over his
remaining purely state law claims. See 28 U.S.C. § 1367(a) (“district courts shall have
supplemental jurisdiction over all other claims that are so related to claims in the
action within such original jurisdiction that they form part of the same case or
controversy under Article III of the United States Constitution”). “The district court
holds broad discretion under 28 U.S.C. § 1367(c)(3) to dismiss related state law
claims after federal claims are dismissed.” Stewart v. Independent School Dist., 481
F.3d 1034, 1046 (8th Cir. 2007).
Scroggins contends that the Court should exercise supplemental jurisdiction
because: (1) he “has cancer and should not be denied his day in Court;” (2) “the Court
has denied summary judgment and is familiar with the case;” and (3) the parties are
ready for trial.
After careful consideration, the Court concludes that the factors governing
Rights Act were also untimely because they were first plead in the state court amended
complaint, filed more than three years after those claims accrued. According to
Defendants, those claims did not “relate back” to the claims asserted in the original
complaint. It is unnecessary to decide whether Scroggins’s state court amended
complaint “related back” to the complaint, because the Court has elected not to
exercise supplemental jurisdiction over those state law claims
whether it should exercise supplemental jurisdiction all weigh against doing so.15
First, the Court has had very limited involvement with the case during the
approximately one year it has been pending.16 Second, as indicated earlier, all of the
depositions and discovery took place during the more than three years this action was
pending in state court. See docket entry #15-1. Third, while the Court is sympathetic
to Scroggins’s health problem and his wish to have his day in court, it was he who
Cf. Carnegie–Mellon Univ. v. Cohill, 484 U.S. 343, 350 n. 7 (1988) (“[I]n the
usual case in which all federal-law claims are eliminated before trial, the balance of
factors to be considered under the pendant jurisdiction doctrine—judicial economy,
convenience, fairness, and comity—will point toward declining to exercise
jurisdiction over the remaining state-law claims”); Ivy v. Kimbrough, 115 F.3d 550,
552–53 (8th Cir. 1997) (“In most cases, when federal and state claims are joined and
the federal claims are dismissed on a motion for summary judgment, the pendent state
claims are dismissed without prejudice to avoid needless decisions of state law.”)
(internal quotations and citations omitted); Condor Corp. v. City of St. Paul, 912 F.2d
215, 220 (8th Cir. 1990) (stating that the district court should have declined pendant
jurisdiction after dismissing the federal claims because of “the necessity to provide
great deference and comity to state court forums to decide issues involving state law
questions”); Taylor v. Selig, 409 Fed. Appx. 986 (8th Cir. 2011) (affirming § 1367(c)
dismissal of state law claims following dismissal of § 1983 due process claim for
failure to state a claim); Wolfe-Holmes v. Arkansas State Hospital, 142 Fed. Appx.
959 (8th Cir. 2005) (affirming § 1367(c) dismissal of state law claims following
dismissal of Title VII claims that were time barred); Cao v. Puerto Rico, 525 F.3d
112, 116 (1st Cir. 2008) (following dismissal of § 1983 claim as time-barred “the
district court was well within its discretion in declining to exercise its supplemental
jurisdiction over the remaining state law claims”).
The Court has only entered two orders in this case: a Scheduling Order on
January 18, 2011; and an Order denying Defendants’ Motion for Summary Judgment
on June 17, 2011.
chose to voluntarily nonsuit his state court action, after it had been pending in state
court for over three years, and refile the case in federal court.
Fourth, this case involves several novel issues of state law. For example,
Scroggins contends that his termination violated his right to “remonstrate” under the
Arkansas Constitution, which provides him with broader protection than that afforded
by the First Amendment of the United States Constitution. (Docket entry #16 at 9-10).
When he was faced with the identical legal argument, in another case in this district,
United States District Judge D. P. Marshall Jr. declined supplemental jurisdiction over
the Arkansas Civil Rights Act claim, in part because it raised “important and complex
legal questions [that] have not been squarely addressed by an Arkansas appellate
court.” Roe v. Graham, E.D. Ark. No. 2:09CV00098 DPM docket entry #32 at 17-19,
Similarly, Scroggins’s so-called “felony tort” claim is also based on a novel
state law theory. He alleges that Defendant McGee solicited his political support and
later terminated him for refusing that support. According to Scroggins, this conduct
constituted the felony crime of “abuse of public trust” under Ark. Code Ann. §
5-52-101. He further argues that he was a victim of that felony, which gives rise to a
cause of action under the Arkansas “crime victims civil liability statute,” Ark. Code
Ann. § 16-118-107 (creating a civil cause of action for “[a]ny person injured or
damaged by reason of conduct of another person that would constitute a felony,” and
allowing such a person to “file a civil action to recover damages based on the
conduct”). Scroggins’s theory, which effectively seeks to create an individual civil
claim for an alleged felony where the “victims” appear to be the collective citizenry
of Lonoke, would constitute an important and sweeping application of the “crime
victims civil liability statute.”
Finally, Scroggins can refile his state law claims in Lonoke County Circuit
Court, where he should be able to get a prompt trial date.17 At the time Scroggins
initiated this federal action, only 24 days had run against the one-year Arkansas
savings statute. “The one-year savings statute merely tolls the general statute of
limitations.” Smith v. Sidney Moncrief Pontiac, Buick, GMC Co. 353 Ark. 701, 120
S.W.3d 525 (2003). Thus, the tolling provision of 28 U.S.C. § 1367(d) should leave
Pursuant to Rule 41(a)(1) of the Arkansas Rules of Civil Procedure, a
plaintiff’s voluntary dismissal “operates as an adjudication on the merits” when “filed
by a plaintiff who has once dismissed in any court[.]” Thus, a plaintiff cannot take two
nonsuits and file suit a third time.
However, where plaintiff first takes a nonsuit, and the second dismissal is
involuntary and, without prejudice, based on the Court granting a defendant’s motion
to dismiss, the plaintiff’s third suit does not run afoul of Rule 41’s prohibition, and the
savings statute is still applicable. See Carton v. Missouri Pacific Railroad, 295 Ark.
126, 747 S.W.2d 93 (1988) (“Since [plaintiff] commenced the present suit in [state
court] within one year of the second dismissal without prejudice [on motion of
defendant], she is entitled to receive the benefits of § 16-56-126 and continue her
Scroggins with 341 days to refile his state law claims in Lonoke County Circuit
Court.18 See 28 U.S.C. § 1367(d) (“[t]he period of limitations for any claim asserted
under subsection (a) . . . 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”).
IT IS THEREFORE ORDERED THAT:
Defendants’ Motion to Dismiss (docket entry #29) is GRANTED.
Plaintiff’s claims under 42 U.S.C. § 1983 are DISMISSED, WITH
Plaintiff’s state law claims are DISMISSED, WITHOUT PREJUDICE.
Defendants’ Motion to Continue (docket entry #31) and Motion in
Limine (docket entry #32) are DENIED, AS MOOT.
On September 9, 2011, the Court held an on-the-record telephone conference
with counsel for Plaintiff and Defendants. During that conference, Mr. Ralph Ohm,
Defendants’ attorney, agreed that the tolling provision of 28 U.S.C. § 1367(d) applied
to the one-year Arkansas savings statute, Ark. Code Ann. § 16-56-126. He further
agreed that the one-year savings statute would have began to run on July 14, 2010, the
day after Plaintiff took a nonsuit on July 13, 2010, and that the one-year savings
statute would have been tolled twenty-four days later, on August 6, 2010, when
Plaintiff initiated this action in federal court. Finally, Mr. Ohm agreed that, as long as
Plaintiff refiles this action in Lonoke County Circuit Court, within 341 days of the
date the Court’s Order and the accompanying Judgment become final, he would not
assert as a defense that those state law claims were barred because they were being
filed beyond the one-year Arkansas savings statute.
Dated this 12th day of September, 2011.
UNITED STATES MAGISTRATE JUDGE
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