CLEMMONS v. GUILFORD TECHNICAL COMMUNITY COLLEGE et al
MEMORANDUM OPINION AND ORDER signed by MAG/JUDGE L. PATRICK AULD on 10/17/2016; that the Remand Motion (Docket Entry 13 ) and the Amended Remand Motion (Docket Entry 19 ) are both DENIED. (Garland, Leah)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
GUILFORD TECHNICAL COMMUNITY
COLLEGE, et al.,
MEMORANDUM OPINION AND ORDER
This matter comes before the Court on the “Motion For Remand”
(Docket Entry 13) (the “Remand Motion”) and the “Amended Motion for
collectively with the Remand Motion, the “Motions”) filed by
reasons that follow, the Court will deny the Motions.1
This action arises out of Plaintiff’s long-term suspension
from classes at Respondent-Defendant Guilford Technical Community
College (“Defendant GTCC”) for allegedly violating the student code
(See Docket Entry 2 at 1; Docket Entry 4 at 1-2.)
Plaintiff contends that, during her enrollment in Defendant GTCC’s
For the reasons stated in William E. Smith Trucking, Inc. v.
Rush Trucking Ctrs. of N.C., Inc., No. 1:11CV887, 2012 WL 214155,
at *2-6 (M.D.N.C. Jan. 24, 2012), the undersigned United States
Magistrate Judge elects to enter an order rather than a
recommendation regarding remand.
Dental Assisting Program, her family dog “was hit and killed by an
automobile while [she] was walking [it].” (Docket Entry 2, ¶¶ 3-4;
Docket Entry 4, ¶¶ 5-6.) Plaintiff further alleges that, after she
(Docket Entry 2, ¶ 5; Docket Entry 4, ¶ 7), officials accused her
of providing false information to a college official (Docket Entry
2, ¶¶ 6-7; Docket Entry 4, ¶¶ 8-9).
As a result, Plaintiff
contends, school officials placed her “on Restricted Probation for
four full semesters of study.”
(Docket Entry 2, ¶ 7; Docket Entry
4, ¶ 9.) Plaintiff further contends that she appealed that initial
decision (Docket Entry 2, ¶ 8; Docket Entry 4, ¶ 10), and that
school officials conducted a hearing at which counsel did not
appear on her behalf (Docket Entry 2, ¶ 10; Docket Entry 4, ¶ 12).
Following the hearing, Plaintiff alleges, she received notice of
her immediate long-term suspension from Defendant GTCC.
Entry 2, ¶ 11; Docket Entry 4, ¶ 13.)
According to Plaintiff, she
appealed her suspension to Respondent-Defendant Quentin Johnson,
Johnson,” and collectively with Defendant GTCC, “Defendants”), who
upheld the long-term suspension.
(Docket Entry 2, ¶ 15; Docket
Entry 4, ¶ 17.)
On February 25, 2016, Plaintiff filed a “Petition for Judicial
Review” (the “Petition”) in the General Court of Justice, Superior
Court Division, Durham County, North Carolina (the “State Court”).
(Docket Entry 2; see also Docket Entry 1 at 1.)
(Docket Entry 2) and civil summons accompanying the Petition
defendant (see Docket Entries 2, 3).
On March 3, 2016, Plaintiff
served the Petition and civil summons on Defendant Johnson as well
as on the president of Defendant GTCC. (Docket Entries 21-1, 21-2;
see also Docket Entries 13-3, 13-5.)
Pursuant to North Carolina
General Statutes 115D-20(7) and 150B-43, the Petition requested
“the court to review the action of the Student Conduct Appeal
Committee at [Defendant GTCC] in upholding the long-term suspension
of [Plaintiff]” (Docket Entry 2 at 1), alleging that the suspension
violated the state and federal constitutions (id. at 4).
of relief, the Petition requested reversal and expungement of
incomplete or failing grades, and a refund of “any tuition paid to
[Defendant GTCC] by or on behalf of [Plaintiff].”
(Id. at 4-5.)
Meanwhile, on March 2, 2016, Plaintiff filed an “Amended
Petition for Judicial Hearing and Complaint” (Docket Entry 4) (the
“Complaint”) in the State Court, again requesting “court review” of
Plaintiff’s long-term suspension pursuant to North Carolina General
Statutes 115D-20(7) and 150B-43 (id. at 1).
Complaint added Defendant Johnson as a party to the action, and
“allege[d] civil rights violations pursuant to 42 U.S.C. § 1983,
the North Carolina Constitution and rights secured by the common
law of North Carolina.”
With regard to the new state and
federal claims, the Complaint alleges, inter alia, that,
[b]y imposing a long term suspension on [Plaintiff], in
retaliation for her exercising her First Amendment
rights, [Defendants] violated [Plaintiff’s] rights
protected by the First and Fourteenth Amendments of the
United States Constitution in violation of 42 U.S.C. §
1983 and the North Carolina Constitution as guaranteed by
the Declaration of Rights.
[Defendants] lack of notice, escalating punishments,
punishment that shocks the conscience and denial of
counsel resulting in imposition of a long term suspension
of [Plaintiff] violated her right to procedural and
substantive due process protected by the Fifth and
Fourteenth Amendments of the United States Constitution
in violation of 42 U.S.C. § 1983 and the North Carolina
Constitution as guaranteed by the Declaration of Rights.
(Id. at 5 (paragraph numbering omitted).) Additionally, beyond the
relief requested in the Petition, the Complaint sought “attorneys’
fees and costs as allowed by 42 U.S.C. § 1988,” and, “[i]n the
alternative, . . . a permanent injunction and equitable relief
including reinstatement . . . .”
(Id. at 6.)
an Alias and Pluries Summons (the “Summons”) for the Complaint,
naming both Defendant GTCC and Defendant Johnson. (Docket Entry 11 at 9.)
On or about March 11, 2016, Plaintiff provided a copy of the
Complaint and Summons to Defendant GTCC’s counsel, along with a
letter indicating that the Complaint and Summons “ha[d] been sent
to [the] Sheriff for service.”
(Docket Entries 13-3, 13-5; see
also Docket Entry 22 at 4 (“A courtesy copy of the [Complaint and
Summons] was sent to counsel for Defendants by fax on 11 March
On April 21, 2016, Plaintiff “served by Sheriff” the
Complaint and Summons on Defendants.
(Docket Entry 14 at 2; see
also Docket Entry 13, ¶ 6 (“Defendants were served with the
[Complaint], which includes claims pursuant to 42 U.S.C. § 1983 on
April 21, 2016.”).) Defendants filed a “Notice of Removal” (Docket
Plaintiff of the removal of this action from the State Court to
this Court “on the grounds that it is an action in which the
District Courts have original jurisdiction pursuant to 28 U.S.C. §
1331” (id. at 1).
In turn, Plaintiff filed the Motions, seeking to
return this action to the State Court.
(See Docket Entries 13,
argument in favor of remand.
I. Timeliness of the Removal Notice
Defendants untimely filed the Removal Notice.
(Docket Entry 14 at
In particular, Plaintiff argues that Defendants had only 30
days from “receipt” of the Complaint to file the Removal Notice
[Complaint]” on March 11, 2016 (id. at 2), but did not file the
Removal Notice until May 17, 2016 (id. at 6), necessitating remand
to the State Court (id. at 8).
A party may remove to federal court “any civil action brought
in a State court of which the district courts of the United States
have original jurisdiction.”
28 U.S.C. § 1441(a).
courts of the United States “have original jurisdiction of all
civil actions arising under the Constitution, laws, or treaties of
the United States.”
28 U.S.C. § 1331.
Pursuant to 28 U.S.C. §
1446, a removing party must remove an action to federal court
within 30 days of:
the receipt by the defendant, through service or
otherwise, of a copy of the initial pleading setting
forth the claim for relief upon which such action or
proceeding is based, or within 30 days after the service
of summons upon the defendant if such initial pleading
has then been filed in court and is not required to be
served on the defendant, whichever period is shorter.
28 U.S.C. § 1446(b)(1).
“Each defendant shall have 30 days after
receipt by or service on that defendant of the initial pleading or
§ 1446(b)(2)(B). Finally, “[i]f defendants are served at different
times, and a later-served defendant files a notice of removal, any
earlier-served defendant may consent to the removal even though
consent to removal.”
28 U.S.C. § 1446(b)(2)(C).
Here, the Complaint includes a cause of action under 42 U.S.C.
§ 1983 regarding Defendants’ alleged violations of Plaintiff’s
rights under the First, Fifth, and Fourteenth Amendments of the
United States Constitution.
(See Docket Entry 4 at 4-5.)
Court possesses original jurisdiction over Plaintiff’s Section 1983
claim as it arises under federal law, see 28 U.S.C. § 1331, making
Plaintiff did not identify Defendant Johnson as a party in the
Petition (see Docket Entry 2) or accompanying civil summons (see
Docket Entry 3).
Therefore, Defendant Johnson’s 30-day removal
period started only upon proper service of the Complaint and
See 28 U.S.C. § 1446(b)(1).
Plaintiff contends that she achieved service on Defendant
Johnson as well as Defendant GTCC on March 3, 2016.
21 at 4-5 (“The action was served on [D]efendants on March 3,
2016,” and “[t]he affidavit of service filed together with the
signed return receipt established a rebuttable presumption that
[D]efendants were served.”).)
Plaintiff further contends that she
amended the “action” and served a copy of the amended pleadings on
Defendants’ counsel on March 11, 2016, commencing the 30-day
(Id. at 5.)
Plaintiff’s argument fails because
the Petition and civil summons delivered to Defendant Johnson on
March 3, 2016, did not name him as a defendant.
2; Docket Entry 1-1 at 9.)
(See Docket Entry
Therefore, Plaintiff had to achieve
formal service of process of the Complaint and Summons on Defendant
See N.C. Gen. Stat. § 1A-1, Rule 4(j).
Moreover, Plaintiff has failed to establish that Defendants’
counsel possessed authority to accept service of the Complaint and
Summons on Defendant Johnson’s behalf.2
Thus, Defendant Johnson’s
30-day removal period commenced on April 21, 2016, when Plaintiff
“served by [s]heriff” the Complaint and Summons on Defendant
Johnson (Docket Entry 14 at 2).
See 28 U.S.C. § 1446(b)(2)(B).
Defendant Johnson filed the Removal Notice on May 17, 2016 (Docket
Plaintiff alleges that “Defendants’ counsel had previously
required all communications with [Defendants] to be directed to
her, in lieu of the [D]efendants.” (Docket Entry 21 at 5 n.2.) In
support of this argument, Plaintiff points to an email that
Defendants’ counsel sent to Plaintiff’s counsel on November 30,
2015. (Docket Entry 13-2.) However, that email states in relevant
part only: “Our firm represents [Defendant] GTCC with respect to
the [Plaintiff’s] matter. Please direct all future communications
related to this matter to my attention.” (Id.) Because that email
identifies only Defendant GTCC as counsel’s client, it cannot
provide a basis to treat the delivery of the Complaint and Summons
to counsel as effective service of process on Defendant Johnson.
Further, in opposing the Motions, said counsel provided an
affidavit averring that she lacks authority from Defendants to
accept service on their behalf. (Docket Entry 18, ¶¶ 5-7.) “‘The
mere relationship between a defendant and his attorney does not, in
itself, convey authority to accept service . . . . Instead, the
record must show that the attorney exercised authority beyond the
attorney-client relationship, including the power to accept
service.’” Brown v. Blue Cross & Blue Shield of N.C., 226 F.R.D.
526, 528 n.4 (M.D.N.C. 2004) (quoting United States v. Ziegler Bolt
& Parts Co., 111 F.3d 878, 881 (Fed. Cir. 1997)); see also In re
Game Tracker, Inc., 746 F. Supp. 2d 207, 214 (D. Me. 2010)
(collecting cases holding that the attorney-client relationship by
itself remains insufficient to establish authority to accept
service). Accordingly, Plaintiff failed to achieve service upon
Defendant Johnson by sending the Complaint and Summons to
Defendants’ counsel on March 11, 2016. See Maiz v. Virani, 311
F.3d 334, 340 (5th Cir. 2002) (ruling service of process on party’s
attorney invalid, absent showing that attorney had actual authority
to accept service).
Entry 1), within 30 days of April 21, 2016, and Defendant GTCC
properly joined in Defendant Johnson’s removal of the action to
this Court, see 28 U.S.C. § 1446(b)(2)(C). Accordingly, Defendants
timely filed the Removal Notice.3
Plaintiff’s reliance on the so-called “receipt rule” (Docket
Entry 14 at 5-6) does not require a different result. “Pursuant to
the ‘receipt rule’ no service is required, ‘[a]ll that is required
is that the defendant receive, through service or otherwise, a copy
of an “initial pleading” from which the defendant can ascertain
that the case is one which is or has become removable.’”
(quoting Dial–In, Inc. v. ARO Corp., 620 F. Supp. 27, 28 (N.D. Ill.
1985))).) “The ‘receipt rule’ embodied the notion that the removal
period under Section 1446(b) began to run on receipt of a copy of
the complaint, however informally, despite the absence of any
formal service of process.”
Triad Motorsports, LLC v. Pharbco
Mktg. Grp., Inc., 104 F. Supp. 2d 590, 595 n.3 (M.D.N.C. 2000).
However, “the Supreme Court [has] rejected the ‘receipt rule,’”
id., holding that “a named defendant’s time to remove is triggered
by simultaneous service of the summons and complaint, or receipt of
the complaint, ‘through service or otherwise,’ after and apart from
service of the summons, but not by mere receipt of the complaint
unattended by any formal service,” Murphy Bros., Inc. v. Michetti
Pipe Stringing, Inc., 526 U.S. 344, 347-48 (1999) (emphasis added).
Thus, Plaintiff’s provision of the Complaint and Summons to
Defendants’ counsel failed to initiate the removal period. See,
e.g., Savitamagan, LLC v. Seneca Ins. Co., Inc., No. 1:16CV328,
2016 WL 4186999, at *1-2 (M.D.N.C. Aug. 8, 2016) (concluding that
Section 1446(b)’s 30-day removal period began to run upon formal
service, rather than upon the defendant’s receipt of the complaint
through email); Hill v. Equifax Info. Servs. LLC, No. 1:11CV107,
2011 WL 1675045, at *2 (M.D.N.C. May 3, 2011) (recommending denial
of the plaintiff’s motions to remand because “[t]he failure of
service of process with regard to the original complaint is fatal
to [the p]laintiff’s argument that [the d]efendant’s removal of
th[e] action was untimely”), recommendation adopted, slip op.
(M.D.N.C. Aug. 26, 2011).
Jurisdiction Over Claim for Review of Administrative
Plaintiff’s second argument in favor of remand concerns the
Court’s jurisdiction over this civil action.
that “the core claim in this matter [falls] under the [North
Carolina Administrative Procedures Act (the “Act”)], which provides
exclusively for state court review” (Docket Entry 24 at 3), thus
depriving this Court of subject matter jurisdiction over that claim
(Docket Entry 21 at 2 (asserting that this Court “does not have
jurisdiction over [Plaintiff’s] state claim for relief to vacate
her expulsion under the Act”)).
Plaintiff further argues that
because “state law claims predominate over any alleged federal law
(Docket Entry 20 at 3-4.)
Finally, Plaintiff appears to
suggest that, because her state law claim(s) should not proceed in
federal court, the Court should remand the entire action, including
the federal constitutional claim(s) brought under Section 1983.
(See Docket Entry 24 at 2-3.)
As a preliminary matter, pursuant to 28 U.S.C. § 1367(a),
in any civil action of which the district courts have
original jurisdiction, the district courts shall have
supplemental jurisdiction over all other claims that are
so related to claims in the action within such original
jurisdiction that they form part of the same case or
controversy under Article III of the United States
State-law claims are part of the same case is determined by whether
they derive from a common nucleus of operative fact and are such
that a plaintiff would ordinarily be expected to try them all in
one judicial proceeding.”
Hinson v. Norwest Fin. S.C., Inc., 239
F.3d 611, 615 (4th Cir. 2001) (internal brackets and quotation
“[T]o say that the terms of § 1367(a) authorize the district
courts to exercise supplemental jurisdiction over state law claims
. . . does not mean that the jurisdiction must be exercised in all
City of Chicago v. International College of Surgeons, 522
U.S. 156, 172 (1997). Generally, “district courts should deal with
cases involving [such state law] claims in the manner that best
serves the principles of economy, convenience, fairness, and comity
. . . .”
Id. at 172-73 (internal brackets and quotation marks
A court thus may decline to exercise supplemental
predominate over the claim or claims over which the district
court has original jurisdiction.” 28 U.S.C. § 1367(c)(2); see also
Bagley v. Provident Bank, No. Civ. WDQ-05-0184, 2005 WL 1115245, at
*1 (D. Md. Apr. 26, 2005) (explaining that, to substantially
predominate, “a state claim must be more important, more complex,
more time consuming to resolve, or in some way more significant
than its federal counterpart,” which “will normally be the case
only when ‘a state claim constitutes the real body of a case, to
which the federal claim is only an appendage’” (quoting Borough of
W. Mifflin v. Lancaster, 45 F.3d 780, 789 (3d Cir. 1995)).
then, any federal claims would remain in federal court. See United
(observing that, “if it appears that the state issues substantially
predominate, whether in terms of proof, of the scope of the issues
raised, or of the comprehensiveness of the remedy sought, the state
claims may be dismissed without prejudice and left for resolution
Corporation of Shepherdstown, No. 3:11-CV-109, 2012 WL 664495, at
*3 (N.D. W. Va. Feb. 28, 2012) (remanding state law claims pursuant
to 28 U.S.C. § 1367, but retaining jurisdiction over federal
jurisdiction to review Defendants’ decision upholding Plaintiff’s
long-term suspension, North Carolina law provides that a petition
for review of a final decision “must be filed in the superior court
of the county where the person aggrieved by the administrative
decision resides.” N.C. Gen. Stat. § 150B-45(a)(2). Nevertheless,
in a closely analogous situation, the United States Supreme Court
held that federal courts may exercise supplemental jurisdiction
administrative decision, even where state law authorized such
challenges only in state court.
See Chicago, 522 U.S. at 174
(stating that “[t]he [d]istrict [c]ourt properly recognized that it
could exercise supplemental jurisdiction over [the plaintiffs’]
administrative review of the [municipal] [l]andmarks [c]ommission’s
In Chicago, the plaintiffs sought judicial review of a final
decision of a municipal landmarks commission that refused them
Id. at 159-60.
Under Illinois law, “judicial
review of final decisions of a municipal landmarks commission lies
in state circuit court.”
Id. at 159.
The defendants, however,
removed the action to federal court on the basis that the case
included “both federal constitutional and state administrative
challenges to the [c]ommission’s decisions.”
Court concluded that the “state court complaints raised a number of
issues of federal law in the form of various federal constitutional
challenges to the [relevant] [o]rdinances, and to the manner in
which the [c]ommission conducted the administrative proceedings.”
supplemental jurisdiction over the state law claim seeking review
of the commission’s decision.
Id. at 174.
Here, the Court possesses original jurisdiction over the
claims in the Complaint that arise under federal law and the United
28 U.S.C. § 1331.4
Further, this case
administrative decision based (at least in part) on alleged federal
constitutional violations, but also a federal claim under Section
1983 with a specific request for relief under Section 1988.
Docket Entry 4 at 4-6.)
Therefore, supplemental jurisdiction
attaches to any state law claim in the Complaint, so long as that
state claim forms part of the same “case or controversy” as the
See Chicago, 522 U.S. at 165 (concluding that,
“once the case was removed, the [d]istrict [c]ourt had original
jurisdiction over [plaintiffs’] claims arising under federal law,
accompanying state law claims so long as those claims constitute
controversy’” (quoting 28 U.S.C. 1367(a))).
The Complaint seeks relief under state law from Defendants’
administrative decision(s), based on:
(1) the conclusion that
Plaintiff contends that her “[r]elief may be based solely on
state law grounds, thereby avoiding any federal question.” (Docket
Entry 21 at 3.)
This contention fails because the Complaint
expressly asserts a federal law claim under Section 1983 (Docket
Entry 4 at 4-5). See Daly v. Zobel, 311 F. App’x 565, 567 (4th
Cir. 2008) (observing that, because “[42 U.S.C.] § 1983 is
specifically referenced in [the complaint],” the district court
“had jurisdiction under [28 U.S.C.] § 1331”).
Plaintiff violated the student code of conduct was “arbitrary and
punishment in response to [Plaintiff’s] appeals [wa]s an arbitrary
and capricious application of discipline,” (3) portions of the
student code of conduct “are void for vagueness, ambiguous and
contractual right without due process of law,” (5) the suspension
resulted from Plaintiff’s speech, which “violates her rights under
the First Amendment to the United States Constitution and Article
1, § 14 of the North Carolina Constitution,” (6) Plaintiff suffered
a violation of her federal and state constitutional due process
rights “to have counsel participate at the factual hearing before
guaranteed in the United States and North Carolina Constitutions.”
(Docket Entry 4 at 4-5.)
Plaintiff’s Section 1983 claim relies on
the exact same allegations. (See id.) Thus, Plaintiff’s state law
claim(s) form part of the same case or controversy and derive from
Accordingly, the Court possesses supplemental jurisdiction over
Plaintiff’s state law claim(s).
See Chicago, 522 U.S. at 164-65.
Further, the close interrelationship between Plaintiff’s state
and federal claims, including the relief requested, forecloses any
finding that state claim(s) predominate over federal claim(s). See
Romero v. Mountaire Farms, Inc., 796 F. Supp. 2d 700, 711 (E.D.N.C.
2011) (observing that “the substance and basis of the [federal]
claims and the state law claims [in the complaint] are virtually
indistinguishable,” and concluding that, “[b]ecause the state law
claims essentially replicate the [federal] claims, the state law
claims plainly do not predominate” (internal brackets and quotation
marks omitted)); Hunter by Conyer v. Estate of Baecher, 905 F.
Supp. 341, 344 (E.D. Va. 1995) (rejecting the plaintiffs’ argument
that their state law claims substantially predominate over their
federal claims where the pleading “create[d] no distinction between
the federal and state claims in terms of the remedy sought”).
Moreover, resolution of Plaintiff’s federal and state claims in one
multiple tribunals, and will best serve the interests of economy,
convenience, and fairness. See generally Chicago, 522 U.S. at 17273.
As a result, the Court should not decline to exercise
supplemental jurisdiction over Plaintiff’s state law claim(s).
In sum, Defendants timely filed the Removal Notice and this
Court possesses supplemental jurisdiction over Plaintiff’s state
law claim(s), including the challenge to her long-term suspension,
which it should exercise.
IT IS THEREFORE ORDERED that the Remand Motion (Docket Entry
13) and the Amended Remand Motion (Docket Entry 19) are both
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
October 17, 2016
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