McDonald et al v. University of Utah et al
Filing
45
MEMORANDUM DECISION AND ORDER granting in part 17 Deseret Defendants Motion for Judgment on the Pleadings; granting in part 29 University Defendants Motion for Judgment on the Pleadings, and REMANDS the case to the Third District Court for Salt Lake County. Signed by Judge Robert J. Shelby on 8/11/2016. (jds)
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION
GEORGE MCDONALD and DIANA
SCHAFFER, individually and on behalf of
their minor child, G.S.,
MEMORANDUM DECISION AND
ORDER
Plaintiffs,
v.
Case No. 2:15-cv-00283
UNIVERSITY OF UTAH, CHERYL
WRIGHT, SCOTT WRIGHT, M. DAVID
RUDD, RUSS ISABELLA, DESERET
DIGITAL MEDIA, INC., DESERET NEWS,
DESERET NEWS PUBLISHING
COMPANY, RICHARD D. HALL, and PAUL
S. EDWARDS,
Judge Robert J. Shelby
Defendants.
This case arises out of a Deseret News article published in early 2013 about a University
of Utah education program called iSTAR. The article contained a photograph of minor G.S.’s
face, the caption of which identified him by name and incorrectly stated that he has autism.
Based on the article, G.S. and his parents, George McDonald and Diana Schaffer, assert
against the University of Utah and the four University of Utah employees responsible for iSTAR
(University Defendants) several state claims and a federal claim. Plaintiffs bring similar claims
against Deseret Media, Inc., Deseret News, Deseret News Publishing Company, and two Deseret
employees responsible for the article’s publication (Deseret Defendants).
The Deseret Defendants and the University Defendants separately move for judgment on
the pleadings. The court grants both motions in part, dismissing the sole federal claim asserted
1
against the Deseret Defendants and the University Defendants. The court declines to exercise
supplemental jurisdiction over the remaining state claims, and remands the case to state court.
BACKGROUND1
G.S. is an intellectually gifted child with extraordinary visual-spatial skills. In late 2010,
G.S. began attending a University of Utah education program called iSTAR. iSTAR focuses on
neurodiverse youth with atypical brain development or function, and strives to help those youth
reach their full potential by emphasizing spatial-visual skills. Professor Cheryl Wright, Professor
Scott Wright, Chair of the Department of Family and Consumer Studies Russ Isabella, and then
Dean of the College of Social and Behavioral Science M. David Rudd were responsible for the
program’s formation and supervision.
G.S. excelled in the program, and became a role model for other participants. Although
most program participants had autism, the University Defendants knew G.S. had neither autism
nor any other autism spectrum disorder. Indeed, Schaffer, G.S.’s mother, told Professor Cheryl
Wright that G.S. does not have autism, and that he was not to be depicted in any local media.
Professors Cheryl and Scott Wright hosted a media workshop and an evening seminar on
January 3, 2013, to promote iSTAR. In attendance was a photographer from the Deseret News, a
newspaper of general circulation published in the Salt Lake City area. The professors told the
Deseret News photographer that all the children enrolled in iSTAR, including G.S., had autism.
G.S. and McDonald, G.S.’s father, attended the evening seminar. While at the seminar,
the Deseret News photographer took a photograph of G.S. without McDonald’s knowledge or
consent. Professor Cheryl Wright encouraged G.S. to pose for the Deseret News photographer
1
Because this matter is before the court on motions for judgment on the pleadings, the court accepts as true the wellpleaded factual allegations in Plaintiffs’ Amended Complaint and views those facts in the light most favorable to
Plaintiffs as the nonmoving parties. See Atl. Richfield Co. v. Farm Credit Bank of Wichita, 226 F.3d 1138, 1160
(10th Cir. 2000).
2
while McDonald was not looking.
On January 7, 2013, the Deseret News published a print and an online article about
iSTAR. The print version of the article contained a clearly identifiable color photograph of
G.S.’s face. The photograph’s caption identified G.S. by name and labeled him autistic.
Plaintiffs sued the University Defendants and the Deseret Defendants in Utah state court
based on the article’s publication in the Deseret News. Plaintiffs assert state claims for breach of
contract, breach of the implied covenant of good faith and fair dealing, defamation, abuse of
personal identity, intentional infliction of emotional distress, false light invasion of privacy,
public disclosure of private facts, and negligent supervision. Plaintiffs also claim under 42
U.S.C. § 1983 that Defendants deprived Plaintiffs of their First and Fourteenth Amendment
rights guaranteed by the United States Constitution. Defendants timely removed the case to this
court.
LEGAL STANDARD
The Deseret Defendants and the University Defendants now separately move under
Federal Rule of Civil Procedure 12(c) for judgment on the pleadings. Courts evaluate motions
for judgment on the pleadings under Rule 12(c) using the same standard applicable to motions to
dismiss for failure to state a claim under Rule 12(b)(6).2 To survive a Rule 12(b)(6) motion to
dismiss, Plaintiffs must “state a claim upon which relief can be granted,” meaning Plaintiffs must
allege “enough factual matter, taken as true, to make [their] ‘claim to relief . . . plausible on its
face.’”3 “A claim has facial plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”4
2
Id.
Bryson v. Gonzales, 534 F.3d 1282, 1286 (10th Cir. 2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)).
4
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
3
3
While the court “accept[s] all well-pleaded facts as true and view[s] them in the light most
favorable” to Plaintiffs,5 the court will not accept as true “legal conclusions” or “[t]hreadbare
recitals of the elements of a cause of action, supported by mere conclusory statements.”6
ANALYSIS
The court’s analysis proceeds in three parts. The court first analyzes Plaintiffs’ § 1983
claim against the Deseret Defendants, before discussing Plaintiffs’ § 1983 claim against the
University Defendants. Concluding that the § 1983 claims should be dismissed, the court then
explains why it declines to exercise supplemental jurisdiction over the remaining state claims.
I.
Deseret Defendants
Plaintiffs allege under 42 U.S.C. § 1983 that the Deseret Defendants deprived Plaintiffs
of their First and Fourteenth Amendment rights guaranteed by the United States Constitution
when they published the article in the Deseret News. The Deseret Defendants urge the court to
dismiss Plaintiffs’ § 1983 claim because Plaintiffs have inadequately alleged that the Deseret
Defendants, as private entities, are state actors. The court agrees.
A plaintiff asserting a § 1983 claim must adequately allege state action.7 For a private
party’s conduct to constitute state action, the constitutional deprivation “must be caused by the
exercise of some right or privilege created by the State or by a rule of conduct imposed by the
state or by a person for whom the State is responsible,” and “the [private] party charged with the
deprivation must be a person who may fairly be said to be a state actor.”8 The Supreme Court
has identified four tests to determine whether private parties, like the Deseret Defendants, may
5
Jordan-Arapahoe, LLP v. Bd. of Cnty. Comm’rs, 633 F.3d 1022, 1025 (10th Cir. 2011) (quoting Beedle v. Wilson,
422 F.3d 1059, 1063 (10th Cir. 2005)).
6
Iqbal, 556 U.S. at 678.
7
See Anderson v. Suiters, 499 F.3d 1228, 1232 (10th Cir. 2007).
8
Johnson v. Rodrigues, 293 F.3d 1196, 1202 (10th Cir. 2002) (quoting Lugar v. Edmondson Oil Co., 457 U.S. 922,
937 (1982)).
4
fairly be said to be state actors: “(1) the public function test, (2) the nexus test, (3) the symbiotic
relationship test[,] and (4) the joint action test.”9 “Under each of these four tests, ‘the conduct
allegedly causing the deprivation of a federal right’ must be ‘fairly attributable to the State.’”10
Plaintiffs here invoke only the joint actor test. State action exists under that test “if the
private party is a willful participant in joint action with the State or its agents.”11 This inquiry
focuses on whether state officials and private entities “acted in concert” in causing a deprivation
of constitutional rights.12 Courts have found joint action where there is a “substantial degree of
cooperative action between state and private officials,” where “there is overt and significant state
participation in carrying out the deprivation of the plaintiff’s constitutional rights,” or where state
and private actors “share a specific goal to violate the plaintiff’s constitutional rights by engaging
in a particular course of action” giving rise to the violation.13 To the contrary, courts have found
no joint action where either a state official or a private actor independently decides to perform an
unconstitutional act notwithstanding the other’s assistance.14
Plaintiffs argue that joint action exists because the University Defendants participated in
or influenced the Deseret Defendants’ decision to publish G.S.’s photograph and to label him
autistic. In the alternative, Plaintiffs maintain that there was a substantial degree of cooperation
9
Id.
Gallagher v. “Neil Young Freedom Concert,” 49 F.3d 1442, 1447 (10th Cir. 1995) (quoting Lugar, 457 U.S. at
937).
11
Anderson, 499 F.3d at 1233 (citation omitted) (internal quotation marks omitted).
12
Id. (citation omitted) (internal quotation marks omitted).
13
Gallagher, 49 F.3d at 1454–55 (citations omitted) (internal quotation marks omitted).
14
See id. at 1454 (discussing Carey v. Continental Airlines Inc., 823 F.2d 1402 (10th Cir. 1987) and Lee v. Town of
Estes Park, 820 F.2d 1112 (10th Cir. 1987)); see also Anderson, 499 F.3d at 1233 (finding no joint action between a
media outlet and a state officer where plaintiff failed to allege that the state officer obtained editorial control over the
use of a confidential videotape); Espinoza v. Walgreen Co., 2009 WL 2843345, at *3 (D. Utah Aug. 25, 2009)
(finding no joint action where plaintiff alleged no facts indicating that the state officers’ failure “to conduct an
independent investigation was the product of a conspiracy, prearranged plan or customary arrangement between the
[private party] and the police”).
10
5
between the University Defendants and the Deseret Defendants.15
The Tenth Circuit’s decision in Anderson v. Suiters is instructive. In Anderson, the
plaintiff sued a reporter and a media outlet for which the reporter worked under § 1983 after the
media outlet broadcast a videotape showing the plaintiff being raped.16 The Tenth Circuit
concluded that the plaintiff inadequately pleaded that the media defendants acted jointly with the
state officer who received the videotape from the plaintiff to violate her right to privacy.17 The
plaintiff did not allege that the media defendants knew the plaintiff turned the videotape over to
the officer on a condition of confidentiality.18 Nor did the plaintiff allege enough facts showing
that the officer and the media defendants had a shared purpose.19 The plaintiff’s allegations
instead indicated that “the parties had their own, separate goals: [the officer] wanted to appear on
camera, and the media defendants wanted exclusive access to the investigation.”20 The plaintiff
also failed to allege that the officer or any other state actor obtained editorial control over the
media defendants’ use of the videotape.21 And while the plaintiff alleged that the officer called
the plaintiff on the reporter’s behalf to encourage her to speak with the reporter, that fact did not
show joint action to violate the plaintiff’s right to privacy by airing sexually explicit portions of
the videotape.22
A similar result is warranted here. Plaintiffs have not alleged that the Deseret Defendants
knew Schaffer told the University Defendants that G.S. is not autistic, and that he was not to be
depicted in any local media. Nor have Plaintiffs alleged that the state officials and private actors
15
Plaintiffs also twice allege in a conclusory fashion that the Deseret Defendants engaged in joint action with the
University Defendants to deprive Plaintiffs of their constitutional rights. But threadbare, conclusory statements are
insufficient to survive a challenge under Rule 12(c), and are entitled to no weight. See Iqbal, 556 U.S. at 678.
16
Anderson, 499 F.3d at 1231.
17
Id. at 1233.
18
Id.
19
Id.
20
Id.
21
Id.
22
Id. at 1234.
6
shared the common purpose of violating Plaintiffs’ constitutional rights. While Plaintiffs allege
that the University Defendants and the Deseret Defendants both shared the legitimate goal of
publicizing iSTAR, that factual allegation alone does not show joint action to do the allegedly
unconstitutional act of publishing G.S.’s photograph with a caption labeling him autistic.
To be sure, Plaintiffs allege the University Defendants invited the Deseret Defendants to
the media event and provided the Deseret Defendants with information concerning G.S. But this
is unsurprising, and describes nothing more than normal media activities. Indeed, “[w]ithout
more, a reporter does not become a state actor . . . simply because she has received and published
information from a governmental official.”23
Plaintiffs contend that they have alleged the something “more” required to establish joint
action. They assert that (1) the University Defendants “directed” the Deseret News photographer
to take photographs of G.S., and that (2) the Deseret Defendants published what the University
Defendants asked to be published without performing an independent inquiry or investigation.
Neither assertion is supported by the allegations in Plaintiffs’ Amended Complaint.
First, Plaintiffs actually allege that the University Defendants encouraged G.S. to pose for
the Deseret News photographer—not that the University Defendants directed the photographer in
any way. But even if Plaintiffs adequately alleged that the University Defendants directed the
Deseret News photographer to take G.S.’s photograph, that fact would not show joint activity to
do the allegedly unconstitutional act of publishing G.S.’s photograph and labeling him autistic.24
At most, it would show joint activity to take a photograph of G.S., an act not forming the basis
for Plaintiffs’ § 1983 claim against the Deseret Defendants.
23
Id. at 1233 (citation omitted) (internal quotation marks omitted).
See id. at 1234 (concluding that although the state officer called plaintiff on a reporter’s behalf to encourage
plaintiff to speak with the reporter, this fact did not show joint action to violate plaintiff’s constitutional right to
privacy by airing sexually explicit portions of a confidential videotape).
24
7
Second, Plaintiffs do not allege anywhere in their Amended Complaint that the Deseret
Defendants published what the University Defendants asked them to publish. In any event, it
would not show that the Deseret Defendants relinquished to the University Defendants editorial
control over what to publish.25 It would instead establish that the University Defendants made a
request, and that the Deseret Defendants exercised editorial discretion to publish an article in
accordance with that request using photographs and information obtained from the event.
Plaintiffs have failed to allege sufficient facts to establish that the Deseret Defendants
“may fairly be said to be a state actor.”26 As a result, Plaintiffs’ § 1983 claim against the Deseret
Defendants is dismissed.
II. University Defendants
Plaintiffs next claim under § 1983 that the University Defendants violated Plaintiffs’ First
and Fourteenth Amendment rights guaranteed by the United States Constitution when they told
the Deseret Defendants that G.S. is autistic. In response, the University Defendants contend that
the affirmative defense of qualified immunity shields them from liability.27 The court agrees.
The qualified immunity defense shields state officials performing discretionary functions
from money damages unless their conduct was unreasonable in view of clearly established law.28
The doctrine gives state officials “breathing room to make reasonable but mistaken judgments
about open legal questions.”29 And “[w]hen properly applied, it protects all but the plainly
incompetent or those who knowingly violate the law.”30
When a state official raises qualified immunity, the plaintiff bears a “heavy two-part
25
See id. at 1233.
Rodrigues, 293 F.3d at 1202 (citation omitted) (internal quotation marks omitted).
27
The parties agree that the University of Utah is not a “person” and therefore may not be sued under § 1983. To
the extent Plaintiffs assert a § 1983 claim against the University, that claim is dismissed.
28
Anderson v. Creighton, 483 U.S. 635, 638 (1987).
29
Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2085 (2011).
30
Id. (citation omitted) (internal quotation marks omitted).
26
8
burden”31 to plead facts showing “(1) that the [state] official violated a statutory or constitutional
right, and (2) that the right was ‘clearly established’ at the time of the challenged conduct.”32 A
plaintiff must satisfy both parts of the analysis to overcome the defense,33 and the court has
discretion to decide which part to address first.34
To show that a right was “clearly established,” a plaintiff must demonstrate that “the
contours of [the] right [were] sufficiently clear that every reasonable official would have
understood that what he is doing violates that right.”35 This inquiry “must be undertaken in light
of the specific context of the case.”36 And “the right allegedly violated must be established, not
as a broad general proposition, but in a particularized sense so that the contours of the right are
clear to a reasonable official.”37
Ordinarily, a right is clearly established if there is a Supreme Court or Tenth Circuit
decision on point, or if the “clearly established weight of authority from other courts”38 puts “the
statutory or constitutional question beyond debate.”39 That said, “[t]he more obviously egregious
the conduct in light of prevailing constitutional principles, the less specificity is required from
prior case law to clearly establish the violation.”40 And in the end, the “dispositive inquiry” is
“whether it would be clear to a reasonable officer that his conduct was unlawful in the situation
he confronted.”41
Plaintiffs allege that the University Defendants deprived them of three constitutional
31
Phillips v. James, 422 F.3d 1075, 1080 (10th Cir. 2005).
al-Kidd, 131 S. Ct. at 2080.
33
Morris v. Noe, 672 F.3d 1185, 1191 (10th Cir. 2012).
34
al-Kidd, 131 S. Ct. at 2080.
35
Id. at 2083 (citation omitted) (internal quotation marks omitted).
36
Saucier v. Katz, 533 U.S. 194, 201 (2001), overruled in part on other grounds by Pearson v. Callahan, 555 U.S.
223 (2009).
37
Reichle v. Howards, 132 S. Ct. 2088, 2094 (2012) (citations omitted) (internal quotation marks omitted).
38
Morris, 672 F.3d at 1196 (citation omitted) (internal quotation marks omitted).
39
al-Kidd, 131 S. Ct. at 2083.
40
Pierce v. Gilchrist, 359 F.3d 1279, 1298 (10th Cir. 2004).
41
Saucier, 533 U.S. at 202.
32
9
rights: (A) the Fourteenth Amendment right of parents to direct their child’s education, (B) the
Fourteenth Amendment right to privacy, and (C) the First Amendment right against compelled
speech. The court addresses each in turn.
A. Fourteenth Amendment Right of Parents’ to Direct Their Child’s Education
The Fourteenth Amendment’s Due Process Clause states that no State shall “deprive any
person of . . . liberty . . . without due process of law.”42 The “liberty” protected by the so-called
substantive component of the Due Process Clause includes “the fundamental right of parents to
make decisions concerning the care, custody, and control of their children.”43 This interest also
includes the right of parents to “direct the upbringing and education of [their] children.”44
Plaintiffs contend that the University Defendants interfered with G.S.’s parents’ “wellestablished fundamental right to direct [G.S.’s] education without state interference” by “labeling
G.S. as autistic and doing so in a way that informed him and his [non-iSTAR private] school of
that label.”45 Plaintiffs point to two district court decisions outside the Tenth Circuit in support:
Rhoades v. Penn-Harris-Madison School Corp.46 and Merriken v. Cressman.47
In Rhaodes, the court concluded that a psychological examination administered to
students with the school’s help implicated the parent-plaintiffs’ right to direct their daughter’s
42
U.S. Const. amend. XIV, § 1.
Troxel v. Granville, 530 U.S. 57, 66 (2000).
44
Id. at 65 (quoting Pierce v. Soc’y of Sisters, 268 U.S. 510, 534–35 (1925)).
45
Dkt. 33 at 15. Although Plaintiffs invoked in their Amended Complaint the Fourteenth Amendment’s Due
Process Clause in the context of the right of privacy, the University Defendants correctly note that Plaintiffs did not
specifically allege that the University Defendants violated McDonald’s and Schaffer’s Fourteenth Amendment right
to direct their child’s education. Of course, procedural fairness questions arise when pleadings do not give notice of
the theory behind a claim. But when pleading a § 1983 claim, a plaintiff need only allege that “some person has
deprived him of a federal right,” and that “the person who has deprived him of that right acted under color of state or
territorial law.” Gomez v. Toledo, 446 U.S. 635, 640 (1980). A plaintiff is not required to anticipate defenses in
their pleadings—even predicable ones like qualified immunity. See id. As a result, a defendant who asserts
qualified immunity can reasonably expect a responding plaintiff to expand and detail the theory of his case. The
court declines to apply a strict approach to waiver in view of these general principles, Federal Rule of Civil
Procedure 8(e)’s instruction that “[p]leadings must be construed so as to do justice,” and the Tenth Circuit’s “strong
preference for the disposition of litigation on the merits,” Gulley v. Orr, 905 F.2d 1383, 1386 (10th Cir. 1990).
46
574 F. Supp. 2d 888 (N.D. Ind. 2008).
47
364 F. Supp. 913 (E.D. Pa. 1973).
43
10
upbringing and education, where the daughter took the exam without her parents’ consent and
she was informed in front of her peers after taking the exam that she had obsessive-compulsive
disorder and social anxiety disorder.48 Similarly, the Merriken court concluded that a schooladministered survey that asked personal questions concerning students’ relationships with their
parents violated the student’s and his mother’s right to privacy relating to family relationships
and child rearing.49
These cases suggest that a parent’s right to direct her child’s upbringing and education is
implicated when a public school directly provides to or extracts from the child sensitive, personal
information. Yet here, the Deseret Defendants—not the University Defendants—published the
article that publicly labeled G.S. autistic, and informed him and others of that label. Plaintiffs do
not explain how Rhoades and Merriken apply on the facts alleged here, where information from
outside the school walls adversely affected G.S.’s education. And so to the extent there was any
interference with McDonald’s and Schaffer’s right to direct G.S.’s education, it was the Deseret
Defendants that caused the interference. But as discussed, the Deseret Defendants are not state
actors, severing any link between the purported interference and the University Defendants.
Plaintiffs have not sufficiently alleged that the University Defendants deprived G.S.’s parents of
their Fourteenth Amendment right to direct his education.
Even if Plaintiffs have adequately alleged a constitutional violation, they have not shown
that the asserted right is clearly established. While Plaintiffs note that a parent’s right to direct
her child’s education without state interference is clearly established as a general proposition,
they fail to demonstrate that the right is clearly established in a particularized sense in light of the
specific facts of this case. Plaintiffs identify no Supreme Court or Tenth Circuit case on point.
48
49
574 F. Supp. 2d at 891–99.
364 F. Supp. at 918–22.
11
And it is far from clear how Rhoades and Merriken apply to the very different facts here. Even
so, the two district court decisions from outside the Tenth Circuit fall short of demonstrating that
the clearly established weight of authority from other courts has put the constitutional question
beyond debate. In short, it would not have been clear to a reasonable official in the University
Defendants’ position that his conduct was unlawful in the situation he confronted.
The University Defendants are entitled to qualified immunity on this claim.
B. Fourteenth Amendment Right to Privacy
The liberty component of the Fourteenth Amendment’s Due Process Clause also includes
“the individual interest in avoiding disclosure of personal matters.”50 Plaintiffs contend that the
University Defendants violated G.S.’s right against disclosure of personal matters when they
disclosed to the Deseret Defendants the untrue medical diagnosis that he is autistic.51
Plaintiffs again rely on Rhoades in support. Similar to its ruling concerning the right of
parents to direct their child’s upbringing and education, the Rhoades court concluded that the
individual interest in avoiding disclosure of personal matters was implicated where the school
helped administer a psychological exam that extracted highly personal and private information
from parent-plaintiffs’ daughter without the parents’ or daughter’s valid consent.52
Rhoades is distinguishable because it did not involve the disclosure or extraction of an
untrue fact. While Plaintiffs suggest that it is immaterial whether the disclosed fact was true or
untrue, they cite to no authority in support of that proposition. Indeed, it is difficult to see how
the interest in avoiding disclosure of personal matters is implicated when the disclosed fact is not
50
Whalen v. Roe, 429 U.S. 589, 599 (1977).
As should be clear from the discussion to this point, for purposes of the court’s § 1983 analysis the University
Defendants were not responsible for the Deseret Defendants’ disclosure of the allegedly false diagnosis that G.S. is
autistic. As a result, the only “disclosure” for which the University Defendants are responsible is their disclosure to
the Deseret Defendants.
52
574 F. Supp. 2d at 899–904.
51
12
even a true personal matter at all. At bottom, Plaintiffs seek to assert a § 1983 claim based on an
allegedly false and defamatory statement. But “injury to reputation by itself [is] not a ‘liberty’
interest protected under the Fourteenth Amendment.”53 And while “[d]efamation . . . is a tort
actionable under the laws of most States, [it is] not a constitutional deprivation.”54
Plaintiffs have not adequately alleged that the University Defendants violated a right that
the Fourteenth Amendment’s right to privacy protects.55 The University Defendants are entitled
to qualified immunity on this claim.
C. First Amendment Right Against Compelled Speech
The First Amendment’s right to free speech “prohibits the government from compelling
speech.”56 This right to be free from compelled speech applies to “statements of fact the speaker
would rather avoid.”57 “[A] threshold element of [a compelled speech] claim is coercion or
compulsion” by the government.58
Plaintiffs maintain that the University Defendants “compelled Plaintiffs to make a
statement of fact with which they do not agree and wished to avoid” by “compelling Plaintiffs
53
Siegert v. Gilley, 500 U.S. 226, 233 (1991) (citing Paul v. Davis, 424 U.S. 693, 708–09 (1976)).
Id.
55
Plaintiffs argue that they may plead that G.S. was autistic in the alternative. After all, there is a “general principle
that a party may plead claims in the alternative, even if the claims appear to be facially contradictory.” Gulf Coast
Shippers Ltd. P’ship v. DHL Exp. (USA), Inc., 2015 WL 4557573, at *19 (D. Utah July 28, 2015); see also Fed. R.
Civ. P. 8(d)(2)–(3) (allowing a party to “set out 2 or more statements of a claim or defense alternatively or
hypothetically,” and stating that “[i]f a party makes alternative statements, the pleading is sufficient if any one of
them is sufficient,” regardless of number). But this principle applies to the legal theory advanced on a given set of
facts. It does not allow a party to plead two different sets of factual allegations. And a plaintiff may not repeatedly
and consistently allege one thing to be true in support of one claim, while at the same time selectively alleging the
exact opposite fact in support of another claim. See Fed. R. Civ. P. 8(e) (stating that “[p]leadings must be construed
so as to do justice”). The court declines to entertain Plaintiffs’ contention that G.S. was autistic.
56
Bauchman v. West High Sch., 132 F.3d 542, 558 (10th Cir. 1997); see also Corder v. Lewis Palmer Sch. Dist. No.
38, 566 F.3d 1219, 1230 (10th Cir. 2009) (“The Supreme Court has long held that the First Amendment’s freedom
of speech guarantee ‘prohibits the government from telling people what they must say.’” (quoting Rumsfeld v.
Forum for Academic & Inst’l Rights, Inc., 547 U.S. 47, 61 (2006))).
57
Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Boston, 515 U.S. 557, 573 (1995).
58
Bauchman, 132 F.3d at 558; see also Corder, 566 F.3d at 1231 (“In order to compel the exercise or suppression of
speech, the governmental measure must punish, or threaten to punish, protected speech by governmental action that
is regulatory, proscriptive, or compulsory in nature.” (citation omitted) (internal quotation marks omitted)).
54
13
and G.S. to publicly identify G.S. as autistic.”59 But the University Defendants did not compel
or coerce Plaintiffs into saying anything. While the University Defendants may have published
the false statement that G.S. is autistic to the Deseret Defendants, the University Defendants
were not responsible for publishing the article that supposedly compelled Plaintiffs to make a
statement of fact they otherwise would have liked to avoid. Regardless, individuals labeled in an
article or in some other public way are not compelled to adopt that label. Individuals do not lose
their freedom to self-identify so easily. They are free to reject any label ascribed to them, and to
continue identifying themselves as they please. Plaintiffs have not sufficiently alleged that the
University Defendants violated their First Amendment right against compelled speech, and the
University Defendants are entitled to qualified immunity.
Plaintiffs’ § 1983 claim against the University Defendants is dismissed.
III. Supplemental Jurisdiction
Having dismissed all the federal claims asserted in this action over which the court had
original jurisdiction, the court must now decide whether it will exercise supplemental jurisdiction
over Plaintiffs’ remaining state law claims.
Federal district courts have discretion to exercise supplemental jurisdiction over state law
claims after dismissing every claim over which they had original jurisdiction.60 If all federal
claims are dismissed before trial, federal courts generally should decline to exercise jurisdiction
over any remaining state law claims “because notions of comity and federalism demand that a
state court try its own lawsuits, absent compelling reasons to the contrary.”61 “[T]he nature and
extent of pretrial proceedings, judicial economy, convenience, and fairness” guide the court’s
59
Dkt. 33 at 16.
Carlsbad Tech., Inc. v. HIF Bio, Inc., 556 U.S. 635, 639 (2009); see also 28 U.S.C. § 1367(c)(3) (stating that a
district court “may decline to exercise supplemental jurisdiction over a claim . . . if . . . [it] has dismissed all claims
over which it has original jurisdiction”).
61
Brooks v. Gaenzle, 614 F.3d 1213, 1229–30 (10th Cir. 2010) (citation omitted) (internal quotation marks omitted).
60
14
exercise of its discretion.62
Here, there are no compelling reasons for the court to exercise supplemental jurisdiction
over the state law claims. First, this case is still in its relatively early stages. No trial date has
been set, and this Memorandum Decision and Order addresses two motions for judgment on the
pleadings. Second, judicial economy will not be served by retaining jurisdiction. The court has
constrained its analysis here to only the federal claims asserted, and the parties’ briefing on the
state law claims easily can be resubmitted in state court. Third, the remaining state law claims
present important issues of state law that are best resolved by state trial and appellate courts. The
court declines to exercise supplemental jurisdiction over Plaintiffs’ remaining state law claims.
The court must next determine whether to dismiss the case or to remand it to state court.
A district court has discretion to remand a removed case to state court where all federal claims in
the case have been dismissed.63 The court concludes that remanding this case to state court “best
promote[s] the values of economy, convenience, fairness, and comity.”64 Remand allows the
parties and the state court to efficiently resolve the remaining state law issues, while saving the
parties from expending additional resources refiling the case and repleading the claims.65
The court declines to exercise supplemental jurisdiction over Plaintiffs’ remaining state
law claims, and remands the case to the Third District Court for Salt Lake County.
CONCLUSION
For the reasons stated above, the court GRANTS IN PART the Deseret Defendants’
Motion for Judgment on the Pleadings (Dkt. 17), GRANTS IN PART the University Defendants’
Motion for Judgment on the Pleadings (Dkt. 29), and REMANDS the case to the Third District
62
Thatcher Enter. v. Cache Cnty. Corp., 902 F.2d 1472, 1478 (10th Cir. 1990).
Cernegie-Mellon Univ. v. Cohill, 484 U.S. 343, 357 (1988), superseded on other grounds by statute as recognized
by Fent v. Okla. Water Res. Bd., 235 F.3d 553, 557 (10th Cir. 2000).
64
Id. at 353.
65
See id.
63
15
Court for Salt Lake County.
SO ORDERED this 11th day of August, 2016.
BY THE COURT:
__________________________________
ROBERT J. SHELBY
United States District Judge
16
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