Reiber v. County of Gage, Nebraska et al

Filing 28

MEMORANDUM AND ORDER - The plaintiff's claims against "Unknown Employees of the Gage County Sheriff's Office, in their Individual Capacities" are dismissed without prejudice pursuant to Fed. R. Civ. P. 4(m). The "Unknown E mployees of the Gage County Sheriff's Office, in their Individual Capacities" are dismissed as parties. This case is remanded to the District Court for Gage County, Nebraska. The Clerk of the Court shall stay remand of this case to st ate court for 30 days from the date of this order. The Clerk of the Court is directed to set a case management deadline of June 7, 2016, with the following docket text: check for notice of appeal from remand order. This case is closed. Ordered by Judge John M. Gerrard. (GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
RHONDA REIBER, Administrator of
the Estate of Chad Gesin, Deceased,
4:15-CV-3023
Plaintiff,
vs.

MEMORANDUM AND ORDER

COUNTY OF GAGE, NEBRASKA, et
al.,
Defendants.
This matter is before the Court on its own motion, pursuant to the
Court's Memorandum and Order of March 30, 2016 (filing 26), ordering the
plaintiff to show cause why the unnamed defendants should not be dismissed.
The Court finds that cause has not been shown. The Court will, therefore,
dismiss those defendants, and remand the plaintiff's remaining claims to
state court.
To begin with: in its Memorandum and Order, the Court noted the
presence of unnamed parties, over a year after the plaintiff's complaint had
been filed. Filing 26 at 9-10; see filing 1-1. The Court gave the plaintiff until
April 29, 2016, to show cause why those unserved defendants should not be
dismissed pursuant to Fed. R. Civ. P. 4(m) for failure to serve process. That
deadline has passed, and the plaintiff has not responded to the Court's order.
The record does reflect that "Unknown Employees of the Gage Co.
Sheriffs Ofc., In Their Ind. Capacities" were purportedly served with a copy of
the complaint, before the case was removed to federal court, by certified mail
sent to the Gage County Sheriff's Office. Filing 1-1 at 22, 25-26. That is
insufficient service. Serving an individual within a judicial district within the
United States may be done by
(1)
(2)

following state law for serving a summons in an action
brought in courts of general jurisdiction in the state where
the district court is located or where service is made; or
doing any of the following:
(A) delivering a copy of the summons and of the
complaint to the individual personally;

(B)
(C)

leaving a copy of each at the individual's dwelling or
usual place of abode with someone of suitable age and
discretion who resides there; or
delivering a copy of each to an agent authorized by
appointment or by law to receive service of process.

Rule 4(e). But even assuming that serving "unknown employees" could
somehow be reasonably calculated to give notice of the action, mailing it to
the workplace does not satisfy any of the methods for serving process set
forth in Rule 4(e)(2). See, Wright v. City of Las Vegas, 395 F. Supp. 2d 789,
798-99 (S.D. Iowa 2005); Scherer v. United States, 241 F. Supp. 2d 1270,
1281-82 (D. Kan. 2003); Love v. Hayden, 757 F. Supp. 1209, 1211-12 (D. Kan.
1991). Nor would it satisfy the requirements of Nebraska law. See, Neb. Rev.
Stat. § 25-508.01(1); Anthony K. v. State, 855 N.W.2d 802, 811 (Neb. 2014).
In sum, service of process has not been effected within 120 days as
required (when this case was initiated) by Rule 4(m), and the plaintiff has not
shown cause why that time should be extended. See, Sherman v. Winco
Fireworks, Inc., 532 F.3d 709 (8th Cir. 2008); Freeman v. Busch, 349 F.3d 582
(8th Cir. 2003). The unnamed defendants will be dismissed.
That means that the only claims remaining in this case are the
plaintiff's state-law negligence claims against Gage County and Gustafson.
See filing 26 at 8-9. The Court may continue to exercise supplemental
jurisdiction over those claims. See, 28 U.S.C. § 1367(a) and (c)(3); Carlsbad
Tech., Inc. v. HIF Bio, Inc., 556 U.S. 635, 639-40 (2009). But the Court can
also remand those claims to state court. See, § 1367(c)(3); Carnegie-Mellon
Univ. v. Cohill, 484 U.S. 343, 357 (1988). The Court has "broad discretion in
determining whether to exercise supplemental jurisdiction[,]" Crest Const. II,
Inv. v. Doe, 660 F.3d 346, 359 (8th Cir. 2011), even after issues have been
briefed and some discovery completed, D.J.M. ex rel. D.M. v. Hannibal Pub.
Sch. Dist. No. 60, 647 F.3d 754, 767 (8th Cir. 2011)—and, in fact, where
"resolution of the remaining claims depends solely on a determination of
state law, the Court should decline to exercise jurisdiction." Glorvigen v.
Cirrus Design Corp., 581 F.3d 737, 749 (8th Cir. 2009) (emphasis supplied)
(quotation and citations omitted).
In making that determination, the Court must consider factors such as
judicial economy, convenience, fairness, and comity. Id.; see Wilson v. Miller,
No. 15-1415, 2016 WL 1621952, at *6 (8th Cir. Apr. 25, 2016). But "[i]n the
usual case in which all federal-law claims are eliminated before trial, the
balance of factors to be considered under the pendent jurisdiction doctrine
will point toward declining to exercise jurisdiction over the remaining statelaw claims." Wilson, 2016 WL 1621952, at *6; Williams v. Hobbs, 658 F.3d
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842, 853 (8th Cir. 2011) (quotation and citations omitted). Comity is
particularly significant in this case because, at least according to the
defendants, there are unsettled questions of state tort law here. See filing 14
at 24-25.1 And the Court finds no other factor that distinguishes this case
from the usual case. See Wilson, 2016 WL 1621952, at *6. Accordingly, the
Court will decline to exercise supplemental jurisdiction, and will remand the
plaintiff's state-law claims to state court.2
IT IS ORDERED:
1.

The plaintiff's claims against "Unknown Employees of the
Gage County Sheriff's Office, in their Individual
Capacities" are dismissed without prejudice pursuant to
Fed. R. Civ. P. 4(m).

2.

The "Unknown Employees of the Gage County Sheriff's
Office, in their Individual Capacities" are dismissed as
parties.

3.

This case is remanded to the District Court for Gage
County, Nebraska.

4.

The Clerk of the Court shall stay remand of this case to
state court for 30 days from the date of this order.

5.

The Clerk of the Court is directed to set a case
management deadline of June 7, 2016, with the following
docket text: check for notice of appeal from remand order.

6.

This case is closed.

The Court has rejected their argument. See filing 26 at 8-9. But the defendants are in no
position to contend that state law is uncertain for substantive purposes and claim otherwise
for jurisdictional purposes.
1

The Court notes, for the parties' convenience, that such a remand order is appealable.
Carlsbad Tech., Inc., 556 U.S. at 641. The Court will, unless notified by all remaining
parties that they wish to expedite remand to state court, stay its transmittal of the case for
30 business days to permit sufficient time for an appeal. See Fed. R. App. P. 4(a)(1)(A) and
(7)(A)(i); see also Fed. Home Loan Mortgage Corp. v. Grantz, 568 F. App'x 482, 483 (8th Cir.
2014) (citing Chestnut v. People of State of New York, 86 S. Ct. 940 (1965)); cf. In re Nine
Mile Ltd., 673 F.2d 242, 243-44 (8th Cir. 1982).
2

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Dated this 5th day of May, 2016.
BY THE COURT:

John M. Gerrard
United States District Judge

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