Carter v. Porter et al

Filing 15

MEMORANDUM OPINION & ORDER: It is ORDERED that the Plaintiff's 12 MOTION to Remand to State Court is DENIED. Signed by Judge Jennifer B Coffman on May 18, 2009. (AWD) cc: COR

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY CENTRAL DIVISION LEX INGTON

CIV IL ACTION NO. 08-246-JBC PAUL CARTER, V. M EM ORANDUM OPINION AND ORDER DEFENDANTS. *********** This matter is before the court on the plaintiff' s motion to remand, R. 12, w hich the court w ill deny because it is untimely. The plaintiff filed this matter in Fayette Circuit Court, but the defendants rem ov ed it to this court on June 2, 2008, based on federal-question and supplem ent al jurisdiction. The plaintiff alleged several federal- and state-law claims against the defendants in relation to his arrest on October 14, 2006, and subsequent imprisonment. Upon the defendants' motion, the court dismissed all claim s against the defendants in their official capacities and all claims against them indiv idually , except for the malicious-prosecution claims. The plaintiff contends that remand is proper because the court dismissed his f ederal-law claims, and only a claim for malicious prosecution under Kentucky law rem ains. How ev er, after the defendants pointed out that they interpreted the com plaint as asserting malicious prosecution claims under both 42 U.S.C. § 1983 and Kentucky law , the plaintiff stated that he " c ont inues to assert his remaining claim s of a federal malicious prosecution action," R. 14. He then argues that this PLAINTIFF,

TOM PORTER, ET AL.,

m at t er should be remanded because the Fayette Circuit Court w ould be the most appropriat e venue to adjudicate his claims since the underlying prosecution occ urred in that court. The plaintiff acknow ledges that a claim under federal law remains. The court , therefore, w ill construe his motion to remand as being made " on the basis of any defect other than lack of subject matter jurisdiction," 28 U.S.C. § 1447(c). Motions of this type " m ust be made w it hin 30 days after the filing of the notice of rem ov al. " Id. The parties jointly removed the instant action to federal court on J une 2, 2008, and the plaintiff moved to remand on April 27, 2009. Because the m ot ion w as made after 30 days of the filing of the notice of removal, it is untimely and must be denied. Accordingly, IT IS ORDERED that the plaintiff' s motion to remand, R. 12, is DENIED.

Signed on May 18, 2009

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