McCormack et al v. Minneapolis, City of et al
Filing
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MEMORANDUM OPINION AND ORDER. 1. The McCaffery Defendants' Motion to Dismiss Pursuant to Rule 12 (Doc. No. 38 & Doc. No. 59 ) is DENIED. (Written Opinion). Signed by Judge Donovan W. Frank on 7/18/2011. (BJS)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Tanner McCormack and Tyler McCormack,
Civil No. 07-2651 (DWF/JJK)
Plaintiffs,
v.
MEMORANDUM
OPINION AND ORDER
City of Minneapolis, Minnesota; Dale Burns,
in his individual and official capacities; Jeremiah T.
Kocher, in his individual and official capacities;
James G. Lynch, in his individual and official
capacities; Harvey Blumenthal, in his individual
capacity; Mark Hilliard, in his individual capacity;
Block e/McCaffery Interests/LLC, a foreign
corporation; McCaffery Interests, Inc., a foreign
corporation; Warehouse Business District
Association, Inc.; Securitas Security Services,
Incorporated, a foreign corporation; and
John Does 1-5,
Defendants.
_____________________________________________________________________
Jill Clark, Esq., Jill Clark P.A., counsel for Plaintiff.
C. Lynne Fundingsland and Gregory P. Sautter, Assistant City Attorneys, Office of the
Minneapolis City Attorney, counsel for Defendants City of Minneapolis, Minnesota; Dale
Burns; Jeremiah T. Kocher; and James G. Lynch.
Reid R. Lindquist, Esq., Lommen, Abdo, Cole, King & Stageberg, PA, counsel for
Defendants Harvey Blumenthal, Mark Hilliard, and Securitas Services, Incorporated.
Karna A. Berg, Esq., and Katie M. Connolly, Esq., Nilan Johnson Lewis PA, counsel for
Defendants Block e/McCaffery Interests/LLC and McCaffery Interests, Inc.
_____________________________________________________________________
INTRODUCTION
This matter is before the Court on a Motion to Dismiss brought by Defendants
Block e/McCaffery Interests/LLC and McCaffery Interests, Inc. (the “McCaffery
Defendants”). For the reasons set forth below, the motion is denied.
BACKGROUND
Plaintiffs Tanner and Tyler McCormack are residents of the State of Iowa who
were in the City of Minneapolis, Minnesota on May 12-13, 2007. (Third Am. Compl.
¶¶ 1-2.) Defendants Jeremiah Kocher and James Lynch are Minneapolis Police Officers
who were working off duty as private security guards for the McCaffery Defendants
during the times relevant to this action. (Id. ¶¶ 3-4.) Defendants Harvey Blumenthal and
Mark Hilliard are employees for Defendant Securitas Security Services, Incorporated
(“Securitas”). (Id. ¶¶ 5A-5B.) Securitas trains and employs security officers to place in
private companies, including the McCaffery Defendants. (Id.) Defendant Dale Burns is a
sergeant with the Minneapolis Police Department and was on duty during the incident at
issue in this action. (Id. ¶ 6.)
The Third Amended Complaint alleges that a complex relationship exists between
the public police, private security guards, the corporate defendants, and the City and that
the various defendants “may be jointly or severally liable for acts of individuals under
its/their employ (or otherwise acting as agents), under the principles of respondeat
superior, as a joint action with state actor(s), or as a state actor (based on privatization of
public functions), or acting in concert or similar.” (Id. ¶ 10-11.)
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On or about May 12, 2007, the McCormack brothers entered the Block e Hooters
bar to join a group of friends and acquaintances for a bachelor party. (Id. ¶ 15.) Shortly
after the McCormack brothers entered Hooters, Tanner McCormack was told that he
would not be served. (Id.) A confrontation ensued that spilled out into the second floor
of Block e. (Id. ¶¶ 15-16.) Tanner McCormack alleges that after several interactions he
was attacked from behind by Lynch. (Id. ¶ 16.) Tanner McCormack alleges that, not
having seen who attacked him, he turned around and began defending himself. (Id.)
Lynch responded, allegedly using offensive moves, including choking Tanner
McCormack. (Id.) Tyler McCormack, who feared for his brother’s safety and attempted
to intervene to de-escalate the situation, was also punched by Lynch. (Id. ¶ 17.)
Lynch took Tanner McCormack to the ground and cuffed him. (Id. ¶ 18.) Kocher
arrived and then punched and fell on top of the cuffed Tanner McCormack. (Id.) Kocher
also allegedly ordered Blumenthal and Hilliard to hold back Tyler McCormack. (Id.
¶ 19.) Blumenthal and Hilliard grabbed Tyler McCormack, took him to the ground,
maced him, and cuffed him. (Id.)
The McCormacks allege that they were then taken to a “private jail” in the
basement of Block e, where they were denied medical care and first aid. (Id. ¶21.) Tyler
McCormack emerged from the elevator in the basement with a bloody mouth, and Tanner
McCormack suffered a broken collarbone at some point. (Id. ¶¶ 19-20.) Tanner
McCormack, still handcuffed, was allegedly assaulted and battered in the loading dock
bay area by Hilliard. (Id. ¶ 23.) The Complaint also alleges that unidentified individuals
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struck Tanner McCormack while he was lying face down, grabbed his hair, pushed his
face into the ground, and kicked him in the head. (Id.) The McCormack brothers were
eventually taken to Hennepin County Adult Detention Center, but the Detention Center
refused to accept responsibility for Tanner McCormack, who was then taken to the
hospital. (Id. ¶ 29.)
The Complaint in this matter was filed on June 7, 2007, and asserted claims under
42 U.S.C. § 1983 for false arrest, excessive force, and retaliation as well as state-law
claims for assault and battery.1 All claims were asserted against all Defendants. A
criminal complaint was filed against Tanner McCormack on June 12, 2007, charging
Tanner McCormack with fourth degree felony assault against a peace officer. (Doc. No.
6 (Aff. of C. Lynne Fundingsland (“Fundingsland Aff.”)) ¶ 9, Ex. C.) A criminal
complaint was also filed against Tyler McCormack with the same charge. (Id. ¶ 11,
Ex. E.) On October 2, 2007, the Court entered an Order that stayed the civil action
pending the outcome of the state criminal case. (Doc. No. 34.) The criminal case was
tried in January 2008 and ended in a hung jury. The criminal case was reset for trial for
February 14, 2010. Tanner McCormack then entered a guilty plea to fourth degree
assault gross misdemeanor and the criminal charges against Tyler McCormack were
dismissed. On March 14, 2011, the Court entered an Order lifting the stay in this action,
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The Third Amended Complaint, which is the currently operative complaint,
differentiates between the various defendants as to the Section 1983 claims and also adds
a claim for violation of due process against the McCaffrey Defendants.
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and the McCaffrey Defendants’ motion to dismiss followed.
The McCaffrey Defendants contend that the only claim asserted under federal law
is a violation of 42 U.S.C. § 1983, which requires the defendant to be a state actor. The
McCaffery Defendants assert that they were not state actors on May 12, 2007 and that
therefore the Section 1983 claim against them fails for lack of subject matter jurisdiction.
The McCaffery Defendants assert that because no viable basis for federal jurisdiction
exists, the state law assault and battery claims against them should also be dismissed. The
McCormack brothers oppose the motion. Defendants City of Minneapolis, Minnesota,
Dale Burns, Jeremiah Kocher, and James Lynch (the “City Defendants”) also oppose the
McCaffrey Defendants’ motion.
DISCUSSION
I.
Legal Standard
Federal Rule of Civil Procedure 12(b)(1) is the proper vehicle by which to seek
dismissal of a claim for lack of federal subject matter jurisdiction. Fed. R. Civ. P.
12(b)(1). A motion to dismiss for lack of subject matter jurisdiction may challenge a
plaintiff’s complaint either on its face or on the factual truthfulness of its averments.
Osborn v. United States, 918 F.2d 724, 729 n.6 (8th Cir. 1990). When a defendant brings
a facial challenge—a challenge that, even if truthful, the facts alleged in a claim are
insufficient to establish jurisdiction—a court reviews the pleadings alone, and the
non-moving party receives the same protections as it would defending against a motion
brought pursuant to Rule 12(b)(6). Id. In a factual challenge to jurisdiction, the court
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may consider matters outside the pleadings and the non-moving party does not benefit
from the safeguards of Rule12(b)(6). Id.
II.
42 U.S.C. § 1983
Section 1983 creates a cause of action for the deprivation of a federally protected
right under color of state law. 42 U.S.C. § 1983. The under-color-of-state-law element
excludes merely private conduct from the reach of Section 1983 and requires that the
alleged deprivation resulted from the exercise of a right or privilege having its source in
state authority by a party appropriately characterized as a state actor. Carlson v. Roetzel
& Andress, 552 F.3d 648, 650 (8th Cir. 2008). A private party may be characterized as a
state actor where the state has delegated to the private party a power traditionally
exclusively reserved to the state, where the private party willfully participates in joint
activity with the state or its agents, or where pervasive entwinement exists between the
private entity and the state. Wickersham v. City of Columbia, 481 F.3d 591, 597 (8th Cir.
2007).
The McCaffery Defendants assert that none of the circumstances in which a
private party is subject to liability under Section 1983 exist here. The McCaffery
Defendants contend that Lynch and Kocher were acting as Minneapolis police officers at
all times relevant to this matter, that the McCormack brothers provide no facts
demonstrating any joint action between the McCaffery Defendants and the City, and that
the McCormack brothers’ claim that the McCaffery Defendants were a state actor based
on the privatization of a public function is wrong.
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The McCormack brothers assert that the McCaffery Defendants’ motion is
premature. The McCormack brothers argue that the motion does not really raise a
jurisdictional issue but instead challenges the merits of the Section 1983 claim. They
assert that when jurisdictional issues are inextricably intertwined with the merits, courts
should assume jurisdiction in order to decide the merits of the case. The McCormack
brothers argue that under those circumstances, a Rule 12(b)(1) motion to dismiss should
be treated as a summary judgment motion and any material factual disputes should be
decided at trial.
The City Defendants also oppose the McCaffery Defendants’ motion to dismiss.
The City Defendants assert that the factual challenge to subject matter jurisdiction is
premature absent formalized discovery or an evidentiary hearing. The City Defendants
assert that the McCormack brothers have alleged several different theories to establish
that the McCaffery Defendants acted under color of state law and that a detailed factual
investigation and presentation of evidence is necessary to resolve the issue. The City
Defendants argue that a summary judgment standard applies because the jurisdictional
issues depends on the resolution of factual issues going to the merits of the case.
The Court concludes that it would be premature to dismiss the Section 1983 claim
against the McCaffery Defendants at this time. The Eighth Circuit has held that state
action may be present when private security guards and police officers act in concert to
deprive a plaintiff of their civil rights. See Murray v. Wal-Mart, Inc., 874 F.2d 555, 559
(8th Cir. 1989) (citing El Fundi v. Deroche, 625 F.2d 195, 196 (8th Cir. 1980). The
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McCaffery Defendants attempt to distinguish Murray, arguing that in that case the joint
action was found primarily because the police arrested and charged the plaintiff without
conducting any independent investigation. The McCaffery Defendants instead rely on
Morris v. Dillard Dep’t Stores, Inc., 277 F.3d 743 (5th Cir. 2001), in which the Fifth
Circuit distinguished Murray and upheld the granting of summary judgment denying a
Section 1983 claim where a police officer conducts an independent investigation. See id.
at 751 n.6.
While the McCaffery Defendants’ argument may ultimately prevail, the Court
need not determine at this time whether the circumstances in this action more closely
resemble the facts supporting the decision in Murray or the facts that the Fifth Circuit
relied upon in Morris. As the Eighth Circuit has stated, the “ultimate conclusion must
turn on the particular facts of the case, since ‘only by sifting facts and weighing
circumstances can the nonobvious involvement of the State in private conduct be
attributed its true significance.’” Wickersham, 481 F.3d at 597 (quoting Burton v.
Wilmington Parking Auth., 365 U.S. 715, 722 (1961)).
Formal discovery has not yet begun in this matter and the record is not sufficiently
developed to permit the Court to engage in the required sifting of facts and weighing of
circumstances. At a minimum, it is undisputed that Lynch and Kocher were employed by
the McCaffery Defendants on the night the events at issue took place. The McCaffery
Defendants nevertheless argue that Lynch and Kocher were acting as Minneapolis police
officers at all times relevant to this matter. Under these circumstances and given the very
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early stage of the proceedings in this matter, the Court cannot conclude that the
McCaffery Defendants, through their employees Lynch and Kocher, were not acting
under color of state law. The Court thus concludes, based on the limited record before it
at this time, that federal subject matter jurisdiction exists as to the McCormack brothers’
Section 1983 claim against the McCaffery Defendants.
III.
Assault and Battery
The McCaffery Defendants assert that the Court does not have supplemental
jurisdiction over the state-law claims for assault and battery. The McCaffery Defendants’
argument is based on their assertion that the Court lacks original jurisdiction over the
Section 1983 claim. Because the Court has concluded that it does have original
jurisdiction, based on the current limited record at this time, the Court will exercise
supplemental jurisdiction over the state-law claims.
CONCLUSION
Accordingly, based on the files, records, and proceedings herein, and for the
reasons set forth above, IT IS HEREBY ORDERED that:
1.
The McCaffery Defendants’ Motion to Dismiss Pursuant to Rule 12 (Doc.
No. [38] & Doc. No. [59]) is DENIED.
Dated: July 18, 2011
s/Donovan W. Frank
DONOVAN W. FRANK
United States District Judge
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