Barondes v. Wolfe et al

Filing 20

ORDER granting 10 motion to remand. Signed on 5/2/16 by Chief District Judge Greg Kays. (Francis, Alexandra)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MISSOURI
CENTRAL DIVISION
ROYCE de R. BARONDES,
Plaintiff,
vs.
TIMOTHY M. WOLFE, et al.,
Defendants.

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Case No. 15-04230-CV-C-DGK

ORDER GRANTING MOTION TO REMAND
This case concerns whether the University of Missouri’s policy prohibiting employees
from possessing a firearm while on campus violates state law and the constitutional right to bear
arms. Plaintiff filed this lawsuit in state court, and Defendants removed it to federal court.
Shortly after removal, Plaintiff filed an amended complaint removing all federal claims.
Now before the Court is Plaintiff’s Motion to Remand (Doc. 10). Although the Court
would ordinarily deny the motion because Plaintiff admittedly attempted to engage in forum
manipulation, in this unique case the Court will grant it. Because this case no longer presents
any federal claims, but does presents several novel and important questions of state law that are
best addressed by the state judiciary, this case is REMANDED to the Circuit Court of Cole
County, Missouri.
Background
Plaintiff Royce de R. Barondes (“Barondes”) is an Associate Professor at the University
of Missouri – Columbia School of Law who holds a concealed carry permit issued by the Sheriff
of Boone County, Missouri. Defendants are the President and the Curators of the University of

Missouri (“the University”). They have enforced Curators’ Rule 110.010(B)(4)(a)1 which bans
the possession of firearms on University property. Defendants have interpreted two state laws,
Missouri Revised Statute § 571.030.6,2 which allows state employees to store firearms in their
cars while at work, and § 571.107.1(10),3 which provides possession of a firearm in a vehicle on
university campus is not a criminal offense, to be consistent with this rule. That is, Defendants
contend the University may prevent employees from possessing firearms in their cars on the
University’s property.
On September 19, 2015, Barondes filed a three-count Petition (Doc. 1-1) in the Circuit
Court of Cole County, Missouri. Count I alleged that the Curators’ Rule violated § 571.030.6 by
prohibiting the possession of a firearm in an employee’s vehicle while on University property.
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The Rule provides that “The possession of and discharge of firearms, weapons and explosives on University
property including University farms is prohibited except in regularly approved programs or by University agents or
employees in the line of duty.”
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Section 571.030.6 provides that,
Notwithstanding any provision of this section to the contrary, the state shall not
prohibit any state employee from having a firearm in the employee’s vehicle on
the state’s property provided that the vehicle is locked and the firearm is not
visible. This subsection shall only apply to the state as an employer when the
state employee’s vehicle is on property owned or leased by the state and the
state employee is conducting activities within the scope of his or her
employment. For the purposes of this subsection, ‘state employee’ means an
employee of the executive, legislative, or judicial branch of the government of
the state of Missouri.

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Section 571.107.1(10) provides that a concealed carry permit does not authorize any person to carry a concealed
firearm into:
Any higher education institution or elementary or secondary school facility
without the consent of the governing body of the higher education institution or
a school official or the district school board, unless the person with the
concealed carry endorsement or permit is a teacher or administrator of an
elementary or secondary school who has been designated by his or her school
district as a school protection officer and is carrying a firearm in a school within
that district, in which case no consent is required. Possession of a firearm in a
vehicle on the premises of any higher education institution or elementary or
secondary school facility shall not be a criminal offense so long as the firearm is
not removed from the vehicle or brandished while the vehicle is on the premises.

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Count II alleged the Curators’ Rule violated his right to keep and bear arms under Article I, § 23
of the Missouri Constitution, the Second and Fourteenth Amendments to the United States
Constitution, and 42 U.S.C. § 1983. Count III alleged the Curators’ Rule prohibited him from
defending himself and so violated his right to bear arms under Article I, § 23 of the Missouri
Constitution, the Second and Fourteenth Amendments to the United States Constitution, and 42
U.S.C. § 1983. Barondes sought declaratory and injunctive relief, monetary damages, and
attorney fees pursuant to 42 U.S.C. §§ 1983 and 1988.
On October 16, 2015, Defendants removed the case by invoking the Court’s federal
question jurisdiction, 28 U.S.C. § 1441(a).

Defendants also filed counterclaims seeking a

declaratory judgment that the Rule and § 571.107.1(10) complied with both Missouri law and the
United States Constitution.
On November 6, Barondes filed his Amended Complaint (Doc. 8) which removed all
allegations of any violation of federal law. As now written, Count I alleges the Curators’ Rule is
invalid to the extent it conflicts with § 571.030.6; Count II alleges the Curators’ Rule violates his
right to keep and bear arms under Article I, § 23 of the Missouri Constitution; and Count III
alleges the Curators’ Rule also prohibits him from defending himself and so violates Article I, §
23 of the Missouri Constitution. The Amended Complaint specifically notes Barondes “has
struck the federal claims that provided the basis for removal, and he does not raise any federal
question or claim over which this Court has original jurisdiction.” Am. Compl. ¶ 5.
At the same time Barondes filed his Answer to Defendants’ Counterclaims (Doc. 9). In
relevant part, it asserts that the Amended Complaint has “removed all federal claims, leaving no
claims over which this Court would have original jurisdiction under 28 U.S.C. § 1331,” therefore
“[t]here are no counterclaims pending for Plaintiff to answer.” Answer to Countercls. ¶¶ 5-7.

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On November 10, Barondes filed the pending motion to remand or, in the alternative, to
dismiss the state law claims without prejudice. Defendants oppose remand, arguing Barondes’
admitted forum-shopping weighs heavily against remand.
Discussion
Federal district courts have original jurisdiction over “all civil actions arising under the
Constitution, laws, or treaties of the United States” and supplemental jurisdiction over claims
that are “so related to claims in the action within [its] original jurisdiction that they form part of
the same case or controversy under Article III of the United States Constitution.” 28 U.S.C. §§
1331, 1367(a). Because Counts II and III of the initial Petition alleged violations of the Second
and Fourteenth Amendments and 42 U.S.C. § 1983, the Court possessed original jurisdiction to
hear this case. See Grable & Sons Metal Prods., Inc. v. Darue Eng’g & Mfg., 545 U.S. 308, 31213 (2005). The state law claims fell within the Court’s supplemental jurisdiction because they
were based on the same acts that formed the basis for the federal claims. See, e.g., Preston v.
City of Pleasant Hill, 642 F.3d 646, 650 (8th Cir. 2011) (noting federal and state constitutional
claims concerning the same conduct by defendant formed part of the same case or controversy
under Article III). Since the Court had jurisdiction at the time this case was removed, it may
continue to exercise supplemental jurisdiction over the state law claims in the Amended
Complaint, even if there are no federal claims left in the case. See Kan. Pub. Emp. Ret. Sys. v.
Reimer & Koger Assocs., 77 F.3d 1063, 1067-68 (8th Cir. 1996); see also Charles Alan Wright,
et al., 14B Federal Practice & Procedure § 3721 (4th ed. 2009) (“[A] plaintiff cannot destroy
federal question jurisdiction by dismissing federal question claims.” (compiling authorities)).
The Court, however, may decline to exercise its supplemental jurisdiction and hear the
remaining state law claims if: (1) the state law claims raise a novel or complex issue of state law;

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(2) the state law claims predominate over the claims over which the Court had original
jurisdiction; (3) the Court dismissed all claims over which it had original jurisdiction; or (4) in
“exceptional circumstances,” there are other compelling reasons for declining jurisdiction.
McLaurin v. Prater, 30 F.3d 982, 985 (8th Cir. 1994) (quoting 28 U.S.C. § 1367(c)). If one of
these statutory factors is present, the Court must weigh the interests of judicial economy,
convenience, fairness, and comity to determine whether to exercise jurisdiction. Keating v. Neb.
Pub. Power Dist., 660 F.3d 1014, 1019 (8th Cir. 2011) (listing the so-called “Gibbs factors”
from United Mine Workers of Am. v. Gibbs, 383 U.S. 715 (1966)). “[I]n the usual case,” these
factors will “point toward declining to exercise jurisdiction over the remaining state-law claims.”
Carnegie Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988).
The Gibbs factors are not the only factors a federal court must consider. It must also
“consider whether the plaintiff has engaged in any manipulative tactics.” Id. at 357. If so, “the
court should take this behavior into account,” and it may decide to exercise its supplemental
jurisdiction. Id. This allows district courts to “guard against forum manipulation without a
blanket rule that would prohibit the remand of all cases involving pendant state-law claims.” Id.
Here, the case no longer presents a federal question. Rather, the Court finds only state
law claims raising novel and complex issues of state law, such as whether the Curators’ Rule
conflicts with § 571.030.6 or violates Barondes’ right to bear arms under Article I, § 23 of the
Missouri Constitution. The Court also finds that as in the typical case, the Gibbs factors here
weigh against exercising supplemental jurisdiction to hear these claims.
But that is not the end of the analysis. Barondes has unabashedly attempted to engage in
forum manipulation; he eliminated all federal claims after removal expressly to attempt to force
remand. Indeed, Barondes admits doing so; he touts it as a legitimate tactical decision. He cites

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an unpublished district court decision, Kelly v. Union Electrical Co., No. 07-4210-CV-C-NKL,
2008 WL 53274 (W.D. Mo. Jan. 3, 2008), for support that in this district it is accepted practice.
Kelly, however, is not binding authority, and it is not persuasive.4
The Court holds that dismissing all federal claims after removal to force remand is not a
legitimate tactical decision; it is forum-shopping. As the Fifth Circuit observed:
When a plaintiff chooses a state forum, yet also elects to press
federal claims, he runs the risk of removal. A federal forum for
federal claims is certainly a defendant’s right. If a state forum is
more important to the plaintiff than his federal claims, he should
have to make that assessment before the case is jockeyed from
state court to federal court and back to state court. The jockeying
is a drain on the resources of the state judiciary, the federal
judiciary and the parties involved; tactical manipulation [by
the] plaintiff ... cannot be condoned. The rule that a plaintiff
cannot oust removal jurisdiction by voluntarily amending the
complaint to drop all federal questions serves the salutary purpose
of preventing the plaintiff from being able to destroy the
jurisdictional choice that Congress intended to afford a defendant
in the removal statute.
Boelens v. Redman Homes, Inc., 759 F.2d 504, 507 (5th Cir. 1985) (quotation omitted)
(emphasis added). Of course, other courts hold that,
Filing federal claims in state court is a legitimate tactical decision
by the plaintiff: it is an offer to the defendant to litigate the federal
claims in state court. The defendant is not obligated to remove;
rather, he has the choice either to submit to state court resolution of
his claims, or to assert his right to a federal forum. If the defendant
rejects the plaintiff’s offer to litigate in state court and removes the
action, the plaintiff must then choose between federal claims and a
state forum. Plaintiffs in this case chose the state forum. They
dismissed their federal claims and moved for remand with all due
speed after removal. There was nothing manipulative about that
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In fact, the Kelly court recognized “[t]here is a split among courts regarding whether it is a legitimate tactical
decision to include a federal claim in a state-court petition, dismissing it only after defendants remove to federal
court.” Id. at *2-3 (citing cases reaching different conclusions about the practice).

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straight-forward tactical decision, and there would be little to be
gained in judicial economy by forcing plaintiffs to abandon their
federal causes of action before filing in state court.
Baddie v. Berkeley Farms, Inc., 64 F.3d 487, 491 (9th Cir. 1995). This reasoning is unpersuasive
for two reasons. First, it ignores that defendants have a statutory right to litigate in a federal
forum when a plaintiff raises a federal question. While a plaintiff is the master of his or her
complaint and enjoys a “venue privilege” to choose whether to bring suit in state or federal court,
this privilege is subject to jurisdictional limitations. Once a plaintiff inserts a federal question
claim in the complaint, this privilege gives way to a defendant’s statutory right to litigate in
federal court. A plaintiff is not master of the complaint forever and without exception. Second,
it is factually incorrect to say there is little economy to be gained by forbidding such
gamesmanship: precluding such manipulation would enhance judicial economy at both the state
and federal level and avoid needless waste of litigants’ resources.
That said, the Court recognizes that reasonable jurists disagree on this issue. So the
Court will not dwell on the fact that, as Defendants put it, “just weeks after filing suit and
appearing on national television to bemoan the supposed infringement of his rights under the
federal constitution,” Barondes abruptly decided he did not want to litigate his Second and
Fourteenth Amendment rights once Defendants removed to federal court. Defs.’ Br. (Doc. 15) at
10-11. Instead of adopting a bright-line rule of exercising jurisdiction in cases of egregious
forum shopping, the Court will simply consider it as an additional factor to weigh alongside the
Gibbs factors in deciding whether to exercise jurisdiction. See Payne v. Parkchester N. Condos,
134 F. Supp. 2d 582, 585-86 (S.D.N.Y. 2001) (noting there are two competing views and
declining to adopt a bright-line rule concerning how to handle such situations).

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In the present case, the Court holds that comity for Missouri state courts in this important
case outweighs the need to discourage forum shopping. Accordingly, the Court declines to
exercise its jurisdiction to hear this case. This case is REMANDED to the Circuit Court of Cole
County, Missouri.
The motion (Doc. 10) is GRANTED.
IT IS SO ORDERED.
Dated:

May 2, 2016

/s/ Greg Kays
GREG KAYS, CHIEF JUDGE
UNITED STATES DISTRICT COURT

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