Kennedy v. Jefferson County, Mississippi et al
Filing
203
ORDER denying 90 Motion to Dismiss for Lack of Jurisdiction; denying 90 Motion to Remand. Signed by Honorable David C. Bramlette, III on December 11, 2014. (AA)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
JERRY L. KENNEDY
PLAINTIFF
VS.
CIVIL ACTION NO: 5:13-cv-226-DCB-MTP
JEFFERSON COUNTY, MISSISSIPPI, by and through
its Board of Supervisors, JEFFERSON COUNTY
HOSPITAL, BOARD OF TRUSTEES OF JEFFERSON
COUNTY HOSPITAL, in its official capacity,
and DUDLEY GUICE, individually and in his
official capacity, REGINA REED, individually
and in her official capacity,
and JOHN DOES 1-10
DEFENDANTS
ORDER DENYING MOTION TO DISMISS
OR IN THE ALTERNATIVE MOTION TO REMAND
This cause comes before the Court on Plaintiff’s, Jerry L.
Kennedy, Motion to Dismiss for Lack of Jurisdiction [docket entry
no. 90]. Having reviewed the motion and responses, applicable
statutory and case law, and being otherwise fully advised in the
premises, the Court finds as follows:
I. Factual1 and Procedural Background
Around September of 1999, Plaintiff Jerry L. Kennedy was hired
as
an
administrator
of
the
Jefferson
1
County
Hospital
(“the
The factual assertions in this order are taken from the
Second Amended Complaint. Because this is a motion to dismiss,
the Court must make all factual inferences in the plaintiff’s
favor. Further, the defendants do not contest the facts of the
complaint in their responses. But this order should not be read
as a determination that the defendants are liable for any of
plaintiff’s alleged causes of action.
1
Hospital”). Kennedy’s employment was governed by a contract reached
by agreement between Kennedy and the Board of Trustees of the
Hospital (“the Hospital Board”). Defendants Regina Reed and Dudley
Guice
were
members
of
the
Hospital
Board
during
Kennedy’s
employment. Kennedy’s contract was renewed for a term of five years
on May 9, 2012. Around that time, the composition of the Hospital
Board changed, and new members less favorable to Kennedy were
installed. The contract guaranteed that Kennedy would not be fired
without cause, that he would receive 120 days notice prior to
termination, and that he would be given 120 days to correct the
alleged cause of his termination. On April 10, 2013, the Board
terminated Kennedy without notice.
Kennedy
originally
filed
suit
in
the
Circuit
Court
of
Jefferson County in November of 2013,2 alleging federal claims for
deprivation of civil rights, conspiracy to interfere with civil
rights, and age and gender discrimination, and alleging state law
claims for breach of contract, specific performance, slander per
se, civil conspiracy, and tortious interference with contract. On
December 2, 2013, Defendants–the Hospital, the Hospital Board, and
Reed–removed the case to federal court, alleging federal question
jurisdiction.
On April 18, 2014, Kennedy filed a motion for leave to amend
2
Kennedy filed his initial complaint on November 7, 2013,
but amended that complaint on November 13, 2013.
2
his
complaint
to
omit
his
federal
law
claims.
See
Mot.
Amend/Correct, ECF No. 39. At the Case Management Conference on
April 30, 2014, Kennedy made an ore tenus motion to withdraw his
damages claims for physical pain and suffering and for medical
bills, which was granted. See Order, ECF No. 48. Thereafter,
Kennedy’s motion to amend his complaint was granted in a short
order. See Order, ECF No. 51. Kennedy’s Second Amended Complaint
contains essentially the same facts but alleges only the state law
claims. See Second Amended Complaint p. 5-9, ECF No. 52.
On April 30, 2014, Kennedy filed a new suit in the Circuit
Court
of
Jefferson
County
against
the
same
defendants.3
The
Parallel Complaint contains the same exclusively state law causes
of action as the Second Amended Complaint, but it includes damages
for
physical
pain
and
suffering
and
medical
bills.
Parallel
Complaint ¶ 46, ECF No. 93-11. The state court case has been stayed
pending the outcome of the case before this Court. See Surrebuttal
Ex. M, ECF No. 172-2.
On June 17, 2014, Kennedy filed a motion to dismiss arguing
that this Court lacks jurisdiction to hear the case. All of the
defendants have responded in opposition. See Resp., ECF No. 93 (the
3
The caption of the case lists the same defendants, though
at the time of briefing only Defendant Jefferson County,
Mississippi, had been served. See Resp. Ex. K (“Parallel
Complaint”), ECF No. 93-11; Mem. Opp. p. 5 n.27, ECF No. 94. It
appears as though the remaining defendants have since been
served.
3
Hospital,
the Hospital
Board,
and
Reed);
Resp.,
ECF
No.
102
(Jefferson County, Mississippi); Resp., ECF No. 106 (Guice).
II. Analysis
Kennedy’s motion argues that this Court should dismiss the
case for lack of jurisdiction or, alternatively, remand the case to
the Circuit Court of Jefferson County. However, in his reply,
Kennedy concedes that the Court does have continuing supplemental
jurisdiction over his claims.4 The question remaining before the
Court is whether it should decline to exercise its continuing
supplemental jurisdiction. “[T]he decision as to whether to retain
[supplemental jurisdiction over] the pendent claims lies within the
sound
discretion
of
the
district
court.”
Brown
v.
Sw.
Bell
Telephone Co., 901 F.2d 1250, 1254 (5th Cir. 1990) (citing In re
Carter, 618 F.2d 1093, 1101 (5th Cir. 1980)).
The Court looks to both statutory and common law factors to
determine whether to retain supplemental jurisdiction. Enochs v.
Lampasas Cnty., 641 F.3d 155, 158-59 (5th Cir. 2011). The statutory
4
The defendants were quick to point out that “[t]he
existence of subject matter jurisdiction is determined at the
time of removal,” In re Bissonnet Investments, LLC, 320 F.3d 520,
525 (5th Cir. 2003), and “post-removal events will generally not
deprive the court of jurisdiction,” Bank One Tex. Nat’l Ass’n v.
Morrison, 26 F.3d 544, 547 (5th Cir. 1994). It is unquestioned
that the Court had federal question jurisdiction flowing from 28
U.S.C. Section 1331 over the federal claims and supplemental
jurisdiction flowing from 28 U.S.C. Section 1367 over the state
law claims at the time of removal. Further, one group of
defendants presaged this argument in a response to Kennedy’s
motion to amend and sought to foreclose the possibility of
dismissal or remand. See Resp. ¶¶ 3-4, ECF No. 46.
4
factors come from 28 U.S.C. Section 1367(c) and include whether:
(1) the claim raises a novel or complex issue of State
law,
(2) the claim substantially predominates over the claim
or claims over which the district court has original
jurisdiction,
(3) the district court has dismissed all claims over
which it has original jurisdiction, or
(4) in exceptional circumstances, there are other
compelling reasons for declining jurisdiction.
28 U.S.C. § 1367(c) (1990). The common law factors come from
Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343 (1988), and include:
(1) judicial economy, (2) convenience, (3) fairness, and (4)
comity. 484 U.S. at 350. The Supreme Court also cautioned courts to
consider whether a plaintiff has engaged “in any manipulative
tactics . . . to manipulate the forum” in balancing the factors.
Id., at 357. “[N]o single factor is dispositive.” Mendoza v.
Murphy, 532 F.3d 342, 346 (5th Cir. 2008).
Looking to the statutory factors, the first factor weighs in
favor of retaining jurisdiction because the claims do not raise
novel or complex state law issues. The second and third factors
weigh in favor of declining jurisdiction because the “state law
claims predominate over the non-existent federal claims” and the
Court “dismissed all federal claims when it granted [Kennedy’s]
motion to file an amended complaint.” Enochs, 641 F.3d at 159. The
fourth factor weighs in favor of retaining jurisdiction because
there are no “compelling reasons” to decline jurisdiction.
The Court next turns to the common law factors. Considering
5
judicial economy, the Court has already expended some resources in
adjudicating this case. The parties have already participated in a
case
management
conference
before
the
Magistrate
Judge
and
expounded a fairly large amount of discovery including subpoenas,
depositions, and interrogatories. But the Court “must look at the
case as of the filing of the motion to dismiss and not with the
benefit of hindsight.” Parker & Parsley Petroleum Co. v. Dresser
Indus., 972 F.2d 580, 587 (5th Cir. 1992). As of filing, the case
had been pending in federal court for seven months; discovery would
not conclude for nine more months; and trial was not set for
fourteen more months. The case was, and still is, at a relatively
early stage. Further, although the district judge has since become
involved in the case, as of filing, “the trial court was not so
intimately involved in, and familiar with, the case that proceeding
further in federal court would [] prevent[] redundancy.” Id. Thus,
judicial economy weighs in favor of declining jurisdiction.
As to convenience, Kennedy does not specifically argue that
the Circuit Court of Jefferson County is more convenient than the
District Courthouse located in neighboring Adams County. Guice
points out in his response that Kennedy is not even a resident of
Jefferson County and argues that the electronic filing system,
unavailable in state court, makes federal court more convenient for
all involved. See Resp. p. 4, ECF No. 107. Because Kennedy has not
argued inconvenience, the Court finds that this factor weighs in
6
favor of retaining jurisdiction.
As to fairness, this “factor concerns the prejudice to the
parties
that
would
arise
from
dismissal.”
Parker
&
Parsley
Petroleum, 972 F.2d at 588. No party has argued that it would be
prejudiced by dismissal, and the Court cannot see that any party
would be prejudiced. Therefore, this factor weighs in favor of
declining jurisdiction.
As to comity, the Court finds that this factor weighs in favor
of retaining jurisdiction. Although comity and federalism are
commingled in weighing this factor and federal courts are “not as
well equipped for determinations of state law as are state courts,”
the claims do not present difficult questions or questions of first
impression. Id. at 588-89. Further, the Court has, since the filing
of the motion,5 engaged in a contempt proceeding where it found a
non-party in contempt of court for failing to comply with a
subpoena
including
and
two
failing
ordered
to
comply
with
appearances.
multiple
The
Court
court
has
orders,
retained
jurisdiction over the contemnor to ensure its sanctions are paid.6
5
The Court specifically rejects consideration of these
proceedings in weighing judicial economy, but it finds them
relevant to comity, which, like the other common law factors, is
not bound to a determination at the time of filing.
6
Even if the Court had declined to exercise jurisdiction
over the pendent state law claims, the Court would have retained
jurisdiction over the contempt proceedings. See Qureshi v. U.S.,
600 F.3d 523, 525 (5th Cir. 2010) (citing U.S. v. United Mine
Workers, 330 U.S. 258, 294 (1947)) (holding that “notwithstanding
dismissal of the underlying action,” “a court may nevertheless
7
See Order p. 5, ECF No. 201.
Lastly, the Court finds “it is apparent that by dropping his
[federal] claims and moving for a remand, [Kennedy has] attempted
to engage in precisely the sort of forum manipulation proscribed by
Carnegie-Mellon.”
Brown,
901
F.2d
at
1255.
This
finding
is
buttressed by Kennedy’s new state court suit which seeks damages he
declined in federal court but on the same claims. The defendants
assert that this move resulted because Kennedy is not required to
submit to an examination in state court.
Although the “general rule is to dismiss state claims when the
federal claims to which they are pendent are dismissed,” Enochs,
641 F.3d at 161 (quoting Parker & Parsley Petroleum, 972 F.2d at
585)), because the statutory and common law factors break evenly,
the Court finds that Kennedy’s attempt at forum manipulation tips
the balance in favor of retaining jurisdiction. Therefore, the
Court will deny the motion to dismiss.
III. Order
IT IS HEREBY ORDERED that the plaintiff’s Motion to Dismiss or
in the alternative Motion to Remand is DENIED.
SO ORDERED this the 11th day of December 2014.
/s/ David Bramlette
UNITED STATES DISTRICT JUDGE
consider collateral issues,” including contempt proceedings).
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