Kehrer v. City of Highland et al
Filing
19
ORDER denying 7 Motion to Remand to State Court. Signed by Judge David R. Herndon on 11/23/2016. (dsw)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DOLORES KEHRER,
Plaintiff,
v.
No. 16-cv-1090-DRH-RJD
CITY OF HIGHLAND and ONE
UNKNOWN AGENT OF THE
ILLINOIS TACTICAL ALARM
SYSTEM,
Defendants.
ORDER
HERNDON, District Judge:
Plaintiff, Dolores Kehrer, filed a two count complaint in the Circuit Court of
Madison County Illinois. One count is a state-law claim directed against the City of
Highland and an unknown police officer allegedly acting on behest of the City of
Highland. The second count is a federal constitutional claim, brought pursuant to
42 USC Section 1983, directed against the same unknown police officer. Both
claims arise out of the same set of facts.
The City of Highland, the only defendant that has been served, removed the
action to this Court on federal question grounds (Doc. 1). The plaintiff now moves
to remand (Doc. 7). The City of Highland has responded in opposition (Doc. 11).
For the reasons stated below, the motion is denied.
A defendant can remove “any civil action brought in a State court of which
the district courts of the United States have original jurisdiction.” 28 U.S.C. §
1441(a). The Court has original jurisdiction over claims arising under federal law.
28 U.S.C. § 1331 (“The district courts shall have original jurisdiction of all civil
actions arising under the Constitution, laws, or treaties of the United States.”).
“[T]he presence or absence of federal-question jurisdiction is governed by the
‘well-pleaded complaint rule,’ which provides that federal jurisdiction exists only
when a federal question is presented on the face of the plaintiff's properly pleaded
complaint.” Citadel Sec., LLC v. Chi. Bd. Options Exch., Inc., 808 F.3d 694, 701
(7th Cir. 2015) (citation omitted). Additionally, “in any civil action in which the
district courts have original jurisdiction, the district courts shall have
supplemental jurisdiction over all other claims that are so related to claims in the
action ... that they form part of the same case or controversy.” 28 U.S.C. § 1367.
The plaintiff, as the master of his own complaint, may avoid federal jurisdiction
by pleading only state-law claims. Bastien v. AT & T Wireless Servs., Inc., 205
F.3d 983, 986 (7th Cir. 2000).
In the instant case it is apparent from the face of the complaint that Count
II invokes the protections of the Fourth Amendment (plaintiff cites to 42 USC §
1983, alleging that the unknown officer used excessive force in violation of the
plaintiff’s rights under the Fourth Amendment). This federal claim clearly falls
within the Court’s original jurisdiction. 28 USC § 1331. The state-law claim,
which arises under the same set of facts, is within the Court’s supplemental
jurisdiction. 28 U.S.C. § 1367.
Plaintiff contends that Count II is really a Fifth Amendment takings claim
and is not ripe for federal adjudication until state court remedies have been
exhausted. See Peters v. Vill. Of Clifton, 498 F.3d 727, 731 (7th Cir. 2007) (“No
constitutional violation occurs until just compensation has been denied.”)
(internal citation omitted). The Takings Clause of the Fifth Amendment provides
that no “private property [shall] be taken for public use, without just
compensation.” U.S. Const. amend. V.
Count II alleges that (1) the unknown officer used a metal battering ram to
gain entry into the plaintiff’s home and (2) the use of the battering ram was
unreasonable, amounting to excessive force in violation of the Fourth Amendment.
There is no reference to the Fifth Amendment. Rather, the complaint expressly
states the plaintiff is asserting an excessive force claim via 42 U.S.C. § 1983:
(9) At all times relevant, the Fourth Amendment to the U.S.
Constitution, as incorporated by the 14th Amendment, prohibits the
use of excessive force.
(10) That 42 U.S.C. 1983 provides an avenue to enforce the claims
for excessive force
(Doc. 1-1). Thus, the contention that Count II does not assert a federal claim is
not well taken.
Plaintiff also claims that the case is not removable because Count II (the
Count alleging the federal claim) is directed against an unserved and unnamed
defendant and not against the removing defendant. The plaintiff’s arguments in
this regard are irrelevant. Nothing in the relevant statutes indicates that a party is
prohibited from removing an otherwise removable case on the basis that the
Federal question is not asserted against the removing defendant or that the
federal question is asserted against an unserved defendant. It is the mere
assertion of a federal question that gives rise to the Court’s jurisdiction. The
plaintiff has not cited to, and the Court’s independent research has not revealed,
any authority to the contrary. The bottom line is, if the plaintiff wanted to avoid
removal, the plaintiff, as the master of the complaint, had the option not to raise a
federal question.
Accordingly, for the reasons discussed herein, the motion to remand (Doc.
7) is DENIED.
IT IS SO ORDERED.
Signed this 23rd day of November, 2016.
Judge Herndon
2016.11.23
09:45:10 -06'00'
United States District Judge
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