Wilson et al v. Board of Education of Fayette County et al
Filing
28
MEMORANDUM ORDER & OPINION: 1. Dfts' motions to remand, 10 , 16 are DENIED; 2. Plaintiffs' motion to amend complaint 12 is GRANTED; 3. Dfts's Motion for a more definite statement is DENIED; 4. Plaintiff's Motion for restrai ning order 3 is DENIED; 5. Plaintiffs' Motion to withdraw motion for extension of time 9 is GRANTED to the extent that the motion for an extension of time, 6 , is DENIED AS MOOT; 6. Plaintiffs' Motion to lift abeyance 11 15 is GRANT ED; 7. Plaintiffs' Motion to substitute party 13 is GRANTED, Tom Shelton is terminated as dft and Marlene Helm is substituted in her Official Capacity as Acting Superintended; 8. Plaintiffs' application for entry of default 25 is DENIED. Signed by Judge Joseph M. Hood on 7/16/15.(LC)cc: COR, Plaintiff via US Mail
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
ANTHONY D. WILSON, on
behalf of himself and as
guardian and best friend
of C.W., a minor child,
)
)
)
)
)
and
)
)
C.W., a minor,
)
)
Plaintiffs,
)
)
v.
)
)
)
BOARD OF EDUCATION OF
)
FAYETTE COUNTY,
)
)
and
)
)
TOM SHELTON, in his official )
capacity as Superintendent
)
Of Fayette County Public
)
)
Schools.
)
Defendants.
)
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**
Action No. 5:14-cv-454-JMH
MEMORANDUM ORDER AND OPINION
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**
**
Plaintiffs allege that Defendants have wrongfully denied
C.W. enrollment in Veterans Park Elementary, her neighborhood
school,
and
rather,
enrolled
her
in
Southern
Elementary,
school that is less desirable and farther from her home.
matter
is
before
the
Court
upon
several
motions
filed
a
The
by
Plaintiffs, as well as Defendants’ motion for a more definite
statement with respect to Plaintiffs’ complaint.
The Court has
reviewed the record and applicable law and, being sufficiently
advised, will now issue a ruling on each motion.
A.
As
Plaintiffs’ Motions to Remand
an
initial
matter,
the
Court
motions to remand, [DE 10, 16].
for
remand,
which
the
Court
turns
to
Plaintiffs’
Plaintiffs raise two grounds
will
address
in
turn.
First,
Plaintiffs argue that the unanimity required by 28 U.S.C. §
1446(b)(2)(A) is not satisfied.
Specifically, Defendants argue
that Tom Shelton could not have agreed to removal because the
matter was removed to federal court on December 19, 2014, and
Shelton
was
Plaintiffs
not
properly
sued
Shelton
Superintendent
of
Fayette
served
in
until
his
County
December
official
Public
29,
2014.
capacity
Schools,
as
however.
“Official capacity” suits have the effect of making the agency
the real party in interest rather than the individual named.
Kentucky v. Graham, 473 U.S. 159, 165–66 (1985).
the
government
entity
receives
notice
and
an
“As long as
opportunity
to
respond, an official-capacity suit is, in all respects other
than name, to be treated as a suit against the entity.”
166.
Id. at
Plaintiffs’ intent to sue Shelton solely in his official
capacity
is
reflected
further
by
the
“motion
to
substitute
party” in which they seek to remove Shelton from this case and
substitute Marlene Helm, the current Superintendent of Fayette
2
County
Public
Schools.
Accordingly,
despite
the
timing
of
Shelton’s service, the unanimity requirement is satisfied.
Plaintiffs also contend that this matter should be remanded
in light of 28 U.S.C. § 1447(d)’s requirement that, after the
filing of a notice of removal, the defendants must “promptly”
file a copy of the notice with the clerk of the state court.
Defendants do not dispute that they failed to file their notice
of removal with the state court clerk at the time of removal.
Rather,
apparently
January
22,
due
2015—34
to
days
an
oversight,
after
the
case
they
was
waited
until
removed.
The
question is, then, whether the notice to the state court may be
characterized as prompt.
In Lang v. Mattison, No. 6:13-cv-38,
2013 WL 2103145, at *2–3 (E.D. Ky. May 14, 2013), the court
determined that a 33-day lapse was acceptable.
As in Lang, it
would have been preferable had the defendants notified the state
court upon filing the notice of removal in federal court.
The
defect does not require remand, however, because the defendants
did eventually notify the state court of removal and there is no
indication that any activity took place in the Fayette Circuit
Court during the delay. Accordingly, any concurrent jurisdiction
did
not
affect
the
case
and
no
prejudice
Plaintiffs’ motions to remand will be denied.
3
has
resulted.
B.
Defendants’ Motion for a More Definite Statement and
Plaintiffs’ Motion to Amend the Complaint
Next, the Court turns to the Defendants’ motion for a more
definite
statement
with
respect
to
Plaintiffs’
complaint.
Federal Rule of Civil Procedure 12(e) provides that “[a] party
may move for a more definite statement of a pleading to which a
responsive
pleading
is
allowed
but
which
is
so
vague
or
ambiguous that the party cannot reasonably prepare a response.”
Such motions are generally disfavored, see, e.g., Static Control
Components, Inc. v. Lexmark Int’l, Inc., No. 04-cv-84, 2005 WL
2122641, *1 (E.D. Ky. Aug. 29, 2005), and will be granted only
“when the pleading is so vague that it is unreasonable to expect
that a responsive pleading may or can be framed.”
SKY Tech.
Partners, LLC v. Midwest Res. Inst., 125 F. Supp. 286, 298 (S.D.
Ohio 2000).
To be sure, Plaintiffs’ complaint is far from a model of
clarity.
Nor can it be said to contain “a short and plain
statement of the claim[s] showing that the pleader is entitled
to relief.”
Fed. R. Civ. P. 8(a)(2).
While Plaintiffs include
a significant amount of background information, the complaint
lacks specificity when it comes to describing legal claims.1
The
1
The exception is Count II, in which Plaintiffs adequately allege a claim that
Defendants have violated Plaintiffs’ rights to travel, to utilize public
land, and to associate freely, under the Kentucky and United States
Constitutions, as well as K.R.S. § 511.090.
4
complaint, in its original state, is so vague that Defendants
would not be able to formulate an answer without speculating or
attempting to articulate Plaintiffs’ claims for them.
Following
removal of this matter, however, Plaintiffs moved to amend the
original complaint, seeking to clarify that their claims are
brought pursuant to 42 U.S.C. § 1983 and “the Equal Protection
Clause
of
the
opinion
that,
should
be
Fourteenth
at
this
permitted
Amendment.”
early
and
stage
that
the
The
of
Court
is
litigation,
amendment
of
the
amendment
enables
the
Defendants to meaningfully respond to the Complaint.
C.
Motion for a Temporary Restraining Order and a Hearing
Plaintiffs move for a temporary restraining order and for a
hearing on a preliminary injunction in this matter, [DE 3].
Pursuant to Federal Rule of Civil Procedure 65(b), the Court may
issue a temporary restraining order only if “specific facts in
an affidavit or a verified complaint clearly show that immediate
and
irreparable
injury,
loss,
or
damage
will
result
to
the
movant before the adverse party can be heard in opposition.”
Irreparable harm is generally defined as harm that cannot be
fully
compensated
by
monetary
damages.
See
Overstreet
v.
Lexington-Fayette Urban Cnty. Gov’t, 305 F.3d 566, 578 (6th Cir.
2002).
C.W. is not enrolled in Veterans Park Elementary at this
time, as Plaintiffs desire, but she is enrolled at Southern
5
Elementary
school
School,
system.
another
school
Plaintiffs
within
contend
that
the
Fayette
Veterans
County
Park
is
consistently ranked as one of the best schools in the state,
while
Southern
Elementary
struggles
to
be
“proficient.”
Regardless, C.W.’s enrollment in school at Southern rather than
Veterans Park hardly constitutes irreparable harm.
There is no
suggestion that the child is being denied access to regular
school
attendance
activities.
or
to
participation
in
regular
school
Accordingly, the motion for a temporary restraining
order will be denied.
Although Federal Rule of Civil Procedure 65 requires that a
hearing be conducted prior to the issuance of a preliminary
injunction, Sec. & Exch. Comm’n v. G. Weeks Secs. Inc., 678 F.2d
649, 651 (6th Cir. 1982), preliminary injunctions may be denied
without a hearing despite the request for one, when the record
demonstrates “the lack of a right to relief so clearly that
receiving further evidence would be manifestly pointless.”
11A
Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal
Practice and Procedure: Civil 3d § 2949 (2010); see Farnsworth
v. Nationstar Mortgage, LLC, 569 F. App’x 421, 427 (6th Cir.
2014).
A
specific
finding
of
irreparable
injury
is
a
prerequisite that the court must examine when ruling upon a
motion for a preliminary injunction.
6
See Los Angeles v. Lyons,
461 U.S. 95, 111 (1983); Warner v. Central Trust Co., N.A., 715
F.2d 1121 (6th Cir. 1983).
An absence of this finding ends the
Court’s inquiry.
As
explained
Elementary
is
an
above,
Plaintiffs’
inferior
school,
constitute an irreparable harm.
assertion
taken
as
that
true,
Southern
fails
to
There is no suggestion that
C.W. has been denied the opportunity to attend school or to
participate
in
potentially
incompensable
appears
assert
to
school
an
activities
harm
and,
has
additional
thus,
been
no
alleged.
claim
that
immediate,
Plaintiff
Defendants
have
somehow violated Plaintiffs’ lawfully protected right to “choose
modes and direction of travel” and to “utilize public parks and
spaces/lands
Plaintiffs
proposal
open
refer
that
to
the
public.”
to
the
Defendants’
C.W.
be
permitted
The
to
Court
denial
presumes
of
attend
that
Plaintiffs’
Veterans
Park
Elementary by taking a footpath that would cut through Veterans
Park.
Defendants’ enrollment of C.W. at a particular school, of
course, does not constitute a restriction on C.W.’s ability to
choose modes of travel or to utilize the park.
Accordingly,
this claim has little success of chance on the merits and a
preliminary
injunction
is
not
appropriate.
See
Gonzales
v.
Nat’l Bd. of Med. Examiners, 225 F.3d 620, 625 (6th Cir. 2000)
7
(“[A] finding that there is simply no likelihood of success on
the merits is usually fatal.”).
D.
Motion to Substitute Party
Plaintiffs move to substitute Marlene Helm, in her official
capacity
as
Acting
Superintendent
of
Fayette
Schools for original Defendant Tom Shelton.
County
Public
Plaintiffs contend
that Helm officially took over this position on January 1, 2015.
Pursuant to Federal Rule of Civil Procedure 25(d), a public
officer’s successor is automatically substituted as a party and
later proceedings should be in the substituted party’s name.
Accordingly, while it was not necessary for Plaintiffs to make a
motion to substitute, the motion will be granted.
E.
Motion for Entry of Default
Finally, Plaintiffs’ motion for entry of default will be
denied.
have
This action has been held in abeyance and Defendants
not
complaint
answer
been
up
required
until
Plaintiffs’
this
to
file
point.
complaint
shall
an
The
answer
time
commence
for
to
Plaintiffs’
Defendants
running
upon
to
the
entry of this Order.
Accordingly, IT IS HEREBY ORDERED:
(1)
that Defendants’ motions to remand, [DE 10, 16] are
DENIED;
8
(2)
that Plaintiffs’ motion to amend complaint, [DE 12],
is GRANTED;
(3)
that Defendants’ motion for a more definite statement
is DENIED;
(4)
that Plaintiffs’ motion for a restraining order and to
set a date for a preliminary injunction hearing, [DE 3], is
DENIED;
(5)
that
Plaintiffs’
motion
to
withdraw
motion
for
extension of time, [DE 9], is GRANTED to the extent that the
motion for an extension of time, [DE 6], is DENIED AS MOOT;
(6)
that Plaintiffs’ motion to lift abeyance, [DE 11, 15],
is GRANTED;
(7)
is
that Plaintiffs’ motion to substitute party, [DE 13],
GRANTED
and
the
Clerk
shall
terminate
Tom
Shelton
as
a
Defendant in this matter and add Marlene Helm in her Official
Capacity
as
Acting
Superintendent
of
Fayette
County
Public
Schools;
(8)
that Plaintiffs’ application for entry of default, [DE
25], is DENIED.
9
This the 16th day of July, 2015.
10
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