Briggs v. LSM Properties of Kentucky, LLC

Filing 16

MEMORANDUM OPINION & ORDER by Judge Greg N. Stivers on 4/17/2017. For the reasons discussed, the Court lacks subject matter jurisdiction. IT IS HEREBY ORDERED that Plaintiff's motion to remand (DN 7 ) is GRANTED; however, the portion of her motion requesting attorneys' fees and costs is DENIED. Defendant's motion to dismiss (DN 10 ) is DENIED AS MOOT. This case is REMANDED to Jefferson Circuit Court, and it shall be STRICKEN from the Court's active docket. cc: Counsel; Jefferson Circuit Court Clerk (16-CI-4208) (certified) (CDR)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
CIVIL ACTION NO. 3:16-CV-00619-GNS-DW

MICHELE A. BRIGGS

PLAINTIFF

v.

LSM PROPERTIES OF
KENTUCKY, LLC

DEFENDANT

MEMORDANUM OPINION & ORDER
This matter is before the Court upon Plaintiff’s Motion to Remand and for Costs (DN 7)
and Defendant’s Motion to Dismiss (DN 10), which are ripe for adjudication. For the reasons
discussed below, Plaintiff’s motion is GRANTED IN PART and DENIED IN PART.
Defendant’s motion is DENIED AS MOOT.
I.

BACKGROUND

This is a personal injury case. Plaintiff Michele Briggs (“Briggs”) filed this action in
Jefferson Circuit Court alleging that Defendant LSM Properties of Kentucky, LLC (“LSM”)
failed to adequately maintain an access ramp on one of its properties, which caused her injury.
(Notice of Removal Ex. 1, at 2-6, DN 1-1 [hereinafter Compl.]). Her allegations can be briefly
summarized as follows: On September 2, 2015, Briggs went to an LSM property to purchase a
cellphone from LSM’s lessee, the Sprint Store. (Compl. ¶ 9). After conducting her business in
the store, Briggs, who uses a wheelchair for mobility, exited and proceeded down the concrete
access ramp that connects the store’s entrance to the parking lot. (Compl. ¶ 11). There was a
considerable gap between the bottom of the access ramp and the pavement of the parking lot.

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(Compl. ¶ 12). As Briggs moved down the ramp, her wheelchair stalled in the gap, resulting in
her being ejected from the wheelchair and causing her injury.

(Compl. ¶¶ 13, 21).

The

Complaint forwards two theories of recovery: negligence and negligence per se. (Compl. ¶¶ 1718). Brigg’s negligence per se theory is based upon KRS 198B.260, which adopts the Americans
with Disabilities Act of 1991, 42 U.S.C. §§ 12101-12213, (“ADA”) and its guidelines. (Compl.
¶ 18; Pl.’s Mem. Supp. Mot. Remand & Costs 2, DN 7-1).
Defendant removed this case from state court under 28 U.S.C. § 1441. (Notice of
Removal 1, DN 1). Defendants contend that “[t]his court has jurisdiction over this matter
pursuant to 28 U.S.C § 1331 because Plaintiff’s Complaint alleges violations of the [ADA] . . . .”
(Notice of Removal 2).1 Subsequently, Briggs filed a motion to remand this action to Jefferson
Circuit Court under 28 U.S.C. § 1447(c). (Pl.’s Mot. Remand & Costs, DN 7).
II.

DISCUSSION

Removal of an action from state court to federal court is proper when the plaintiff could
have brought the action in federal court originally. 28 U.S.C. § 1441(a) (“[A]ny civil action
brought in a State court of which the district courts of the United States have original
jurisdiction, may be removed by the defendant . . . .”). Unlike state trial courts, federal district
courts are courts of limited jurisdiction; they hold only that power authorized by statute and the
U.S. Constitution and statute. Gunn v. Minton, 133 S. Ct. 1059, 1964 (2013) (citation omitted).
Under 28 U.S.C. § 1331, district courts have original jurisdiction over “actions arising under the
Constitution, laws, or treaties of the United States.” Id. Moreover, “[t]he party seeking removal
bears the burden of demonstrating that the district court has original jurisdiction.” Eastman v.
Marine Mech. Corp., 438 F.3d 544, 549 (6th Cir. 2006) (citations omitted). “[B]ecause lack of
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LSM fails to discuss upon what basis the Court could exercise jurisdiction over Briggs’
traditional negligence claim.
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jurisdiction would make any decree in the case void and the continuation of the litigation in
federal court futile, the removal statute should be strictly construed and all doubts resolved in
favor of remand.” Id. at 549-50 (alteration in original) (internal quotation marks omitted)
(citation omitted).
Familiar to this analysis is the well-pleaded complaint rule which directs courts to
examine the “[w]ell pleaded allegations of the complaint and ignore potential defenses” in
determining whether a claim arises under federal law. Beneficial Nat’l Bank v. Anderson, 539
U.S. 1, 6 (2003) (internal quotation marks omitted); see also Merrell Dow Pharms. Inc. v.
Thompson, 478 U.S. 804, 808 (1986) (“Under our longstanding interpretation of the current
statutory scheme, the question whether a claim ‘arises under’ federal law must be determined by
reference to the ‘well-pleaded complaint.’” (citation omitted)). Within the confines of the wellpleaded complaint rule, there are two paths to federal court under Section 1331: (1) federal
claims, i.e., cases where federal law creates the cause of action; and (2) state causes of action that
implicate “significant federal issues.” Eastman, 438 F.3d at 550; Grable & Sons Metal Prods.,
Inc. v. Darue Eng’g & Mfg., 545 U.S. 308, 312 (2005); Franchise Tax Bd. v. Constr. Laborers
Vacation Tr. for S. Cal., 463 U.S. 1, 27-28 (1983).
The first path is simple and covers the “vast majority of cases that come within the
district courts’ original jurisdiction . . . .” Franchise Tax Bd., 463 U.S. at 9. A cause of action is
created by federal law where federal law provides a right to relief. Eastman, 438 F.3d at 550.
The second path, which is known as the “substantial-federal-question doctrine,” is more
complicated. The Supreme Court has found that “a case may arise under federal law ‘where the
vindication of a right under state law necessarily turn[s] on some construction of federal law.’”
Merrell Dow Pharms., 478 U.S. at 808-09 (quoting Franchise Tax Bd., 463 U.S. at 9). That

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being said, “the mere presence of a federal issue in a state cause of action does not automatically
confer federal-question jurisdiction.”

Id. at 813.

The substantial-federal-question doctrine

confers jurisdiction only if the following elements are met: (1) the state-law claim necessarily
raises a disputed federal issue; (2) the federal interest in the issue is substantial; and (3) the
exercise of jurisdiction does not disturb any congressionally approved balance of federal and
state judicial responsibilities. Mikulski v. Centerior Energy Corp., 501 F.3d 555, 568 (6th Cir.
2007) (citing Grable & Sons, 545 U.S. at 313).
The first path does not lead LSM to federal court because Briggs is not suing LSM under
the ADA. Title III of the ADA is the only title under which Briggs could bring an ADA claim. 2
It is well settled that Title III does not provide a private cause of action for monetary damages.
See, e.g., Smith v. Wal-Mart Stores, Inc., 167 F.3d 286, 293 (6th Cir. 1999) (recognizing that
Title III enforcement statute, 42 U.S.C. § 12188, which incorporates the remedies of 42 U.S.C. §
2000a-3(a), does not include money damages); see also Ajuluchuku v. Yum! Brand, Inc., No.
3:05CV-826-H, 2006 U.S. Dist. LEXIS 34301, at *4 (W.D. Ky. May 23, 2006) (citations
omitted). Briggs seeks only monetary damages from LSM and thus cannot be bringing suit
under Title III.
Neither does the second path lead LSM to federal court. As to the first element of the
substantial-federal-question test, Briggs apparently concedes that her negligence per se theory
necessarily raises a federal issue that is actually disputed, but the Court is not convinced. The
doctrine of negligence per se allows a plaintiff to substitute the general standard of care with a

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Title I is inapplicable because this is not an employment case; Title II is inapplicable because
LSM is not a state or local government entity. PGA Tour, Inc. v. Martin, 532 U.S. 661, 675
(2001) (“[T]he ADA forbids discrimination against disabled individuals in major areas of public
life, among them employment (Title I of the Act), public services (Title II), and public
accommodations (Title III).” (internal footnotes omitted) (footnote omitted)).
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statutory standard of care, Lewis v. B & R Corp., 56 S.W.3d 432, 438 (Ky. App. 2001), if: “the
plaintiff comes within the class of persons intended to be protected by the statute [alleged to have
been violated] . . .[;] [t]he statute [is] specifically intended to prevent the type of occurrence that
took place . . . [;] [and] the violation [of the statute] [is] a substantial factor in causing the result.”
McCarty v. Covol Fuels No. 2, LLC, 476 S.W.3d 224, 227-28 (Ky. 2015) (internal quotation
marks omitted) (citations omitted). Briggs alleges negligence per se based on LSM’s alleged
violation of KRS 198B.260. KRS 198B.260 in relevant part provides:
(1) The [department] . . . shall promulgate administrative regulations . . .
applicable to all new and altered buildings which shall establish requirements for
making all buildings accessible to and usable by persons with a disability . . . .
(2) The administrative regulations promulgated by the department shall be
consistent with the Federal 1991 Americans with Disabilities Act and the
American Disabilities Act Guidelines.
KRS 198B.260(1)-(2). KRS 198B.260(2) adopts the ADA and makes it part of Kentucky law.
See Conley v. Nikken, No. 2002-CA-001849-MR, 2004 Ky. App. Unpub. LEXIS 740, at *5 (May
7, 2004) (explaining that the plaintiff alleged “negligence per se on the basis that [the defendant]
violated the ADA by failing to remove the architectural barrier which caused her injury . . . in
violation of the ADA as adopted in Kentucky by KRS 198B.260(2).” (citations omitted)); see
also Smith, 167 F.3d at 293 (“A state can incorporate requirements of federal law into its
law . . .”). As a result, Briggs references the ADA in the Complaint merely to establish
negligence per se through KRS 198B.260.3

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Indeed, without KRS 198B.260(2), Briggs could not borrow requirements from the ADA as the
applicable standard of care under the doctrine of negligence per se because, under Kentucky law,
the doctrine is limited to Kentucky statutes. Gonzalez v. City of Owensboro, No. 4:14CV-49JHM, 2015 U.S. Dist. LEXIS 99287, at *27 (W.D. Ky. July 29, 2015) (“[N]egligence per se does
not apply beyond Kentucky’s statutes.” (citing Young v. Carran, 289 S.W.3d 586, 589 (Ky. App.
2008))).
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Even if a disputed federal issue were raised, the federal interest in it would not be
substantial. In Merrell Dow, the Supreme Court held:
[A] complaint alleging violation of a federal statute as an element of a state cause
of action, when Congress has determined that there should be no private federal
cause of action for the violation, does not state a claim “arising under the
Constitution, laws or treaties of the United States.”
Merrell Dow Pharms., 478 U.S. at 817 (quoting 28 U.S.C. § 1331). While Merrell Dow
involved a state law negligence claim premised upon a drug manufacturer’s violation of the
labeling provisions of the Federal Food, Drug, and Cosmetic Act, courts in other jurisdictions
have applied the reasoning of that opinion to state claims premised on alleged violations of the
ADA. In Wagner v. Regent Investments, Inc., 903 F. Supp. 966 (E.D. Va. 1995), the court relied
upon Merrell Dow in remanding claims for negligence and negligence per se premised on
alleged ADA violations. Id. at 970-71. The court explained that while the ADA, unlike the
federal statute at issue in Merrell Dow, provides for a private right of action, Title III of the ADA
does not provide for the recovery of damages, thus indicating “Congress’ . . . intent that
reference to ADA provisions in a state court action for damages is ‘insufficiently substantial’ to
confer federal question jurisdiction over the claim.” Id. at 970; see also Coil v. Recovery Mgmt.,
Corp., No. 05-0151-CV-W-DW, 2005 U.S. Dist. LEXIS 45770, at *5-6 (W.D. Mo. May 16,
2005) (granting motion to remand negligence and negligence per se claims based on alleged
ADA violations); Struffolino v. McCoy, No. 04-cv-137-SM, 2005 U.S. Dist. LEXIS 14158, at *8
(D.N.H. July 14, 2005); McWeeney v. Mo. Historical Soc’y, No. 4:071423, 2007 U.S. Dist.
LEXIS 81915, at *2-3 (E.D. Mo. Nov. 5, 2007) (collecting cases and noting the only circuits to
have examined this issue—the Eleventh and Ninth—found federal question jurisdiction lacking).
But see Grodi v. Mandalay Resort Grp., Inc., No. 2:03CV112-D-A, 2003 U.S. Dist. LEXIS

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27780, at *9-10 (N.D. Miss. Aug 4. 2003) (denying motion to remand negligence and negligence
per se claims premised on alleged ADA violations).4
The Court finds persuasive the reasoning of the many cases holding that negligence per
se claims premised on ADA violations are insufficient to confer federal question jurisdiction.
Briggs’ use of the ADA to establish negligence per se does not present a federal question
sufficient to establish subject matter jurisdiction. LSM has failed to demonstrate that the Court
has original jurisdiction; therefore, remand is required.
Briggs also seeks costs and attorneys’ fees under 28 U.S.C. § 1447(c), which provides
that “[a]n order remanding the case may requirement payment of just costs and any actual
expenses, including attorney fees, incurred as result of the removal.” 28 U.S.C. § 1447(c). “This
language places an award of costs and attorney fees . . . squarely within the discretion of the
district court, but subject to the guidance set forth by the Supreme Court in Martin v. Franklin
Capital Corp., 546 U.S. 132, 136-37 (2005).” Warthman v. Genoa Twp. Bd. of Trs., 549 F.3d
1055, 1059 (6th Cir. 2008). “Absent unusual circumstances, the Supreme Court instructs that fee
awards are appropriate ‘only where the removing party lacked an objectively reasonable basis for
seeking removal.” Id. (internal quotation marks omitted) (quoting Martin, 546 U.S. at 141). The
Sixth Circuit “has similarly instructed that ‘an award of costs, including attorney fees, is
inappropriate where the defendant’s attempt to remove the action was “fairly supportable,” or
where there has not been at least some finding of fault with the defendant’s decision to remove.’”
Id. at 1059-60 (internal quotation marks omitted) (quoting Bartholomew v. Town of Collierville,
409 F.3d 684, 686 (6th Cir. 2005)).
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The Court finds the holding of Grodi to be inapposite. Grodi did not analyze Merrell Dow,
which this Court believes is controlling. Regardless, this case is distinguishable from Grodi
because Briggs’ negligence per se theory is premised on a state statute that incorporates the
requirements of the ADA.
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While the Court finds LSM’s decision to remove this case and its arguments in
opposition to Briggs’ motion to remand to be without merit, as indicated above, there is one
federal court that has retained jurisdiction under 28 U.S.C. § 1331 over negligence and
negligence per se claims involving alleged ADA violations. LSM did not cite Grodi, but the
reasoning employed in its response somewhat tracks the reasoning employed by the court in that
case. Again, Grodi does not control here and, in any event, is distinguishable from this case.
Nevertheless, in light of Grodi, it cannot be said that LSM lacked an “objectively reasonable
basis for seeking removal” or that its attempt to remove was not “fairly supportable.” Therefore,
an award of costs is inappropriate.
LSM filed a motion to dismiss this action pursuant to Fed. R. Civ. P. 12(b)(6) along with
its response to Briggs’ motion. The Court cannot address the merits of this motion because it
lacks subject matter jurisdiction over this case.
III.

CONCLUSION

For the reasons discussed above, the Court lacks subject matter jurisdiction. IT IS
HEREBY ORDERED that Plaintiff’s motion to remand (DN 7) is GRANTED; however, the
portion of her motion requesting attorneys’ fees and costs is DENIED. Defendant’s motion to
dismiss (DN 10) is DENIED AS MOOT. This case is REMANDED to Jefferson Circuit Court,
and it shall be STRICKEN from the Court’s active docket.

Greg N. Stivers, Judge
United States District Court
April 17, 2017

cc:

counsel of record
Jefferson Circuit Court Clerk (16-CI-4208)
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