Opinion
CASE NO. 1:10-cv-105-MEF.
March 23, 2010
MEMORANDUM OPINION AND ORDER
On January 12, 2010, Plaintiff filed suit against the Town of Ariton ("Ariton"), Mike Cowarts ("Cowarts"), and several fictitious defendants in the Circuit Court of Dale County, Alabama. Plaintiff's Complaint set forth his claims in six counts: (1) Count I — Assault; (2) Count II — Negligence; (3) Count III — Negligent Hiring, Training and Supervision; (4) Count IV — Deprivation of Civil Rights Under Color of State Law, Denial of Due Process; (5) Count V — False Arrest/False Imprisonment; and (6) Count VI — Fictitious Defendants, a claim which incorporates by reference all other claims set forth in the other counts against fictitious defendants.
On February 9, 2010, Ariton and Cowarts timely and properly removed this action from state court to this Court. In so doing, they invoked this Court's subject matter jurisdiction over the action pursuant to 28 U.S.C. § 1331 because Count IV of the Complaint set forth a claim pursuant to federal law, specifically, a claim pursuant to 42 U.S.C. § 1983 for an alleged violation of the Plaintiff's rights under the Fourth Amendment to the Constitution of the United States of America. Although Defendants failed to make any reference to a basis for this Court's exercise of subject matter jurisdiction over the other claims set forth in the Complaint which arise under Alabama law, the Court notes that it has supplemental jurisdiction, pursuant to 28 U.S.C. § 1367, over the claims in the Complaint which arise under Alabama law.
Ariton and Cowarts now contend that this Court also had original jurisdiction over this action pursuant to 28 U.S.C. § 1343(a)(3), however, Ariton and Cowarts made no mention of this ground for jurisdiction in their Notice of Removal.
At the time of removal, Cowarts and Ariton also elected to file a motion to dismiss rather than to file an answer. See Defendants' Motion to Dismiss (Doc. #4) filed on February 9, 2010. The Court directed Plaintiff to file a response to the motion to dismiss by no later than February 25, 2010. Rather than complying with this Order in a timely fashion, Plaintiff's counsel filed an Amended Complaint on February 26, 2010. By that amendment, Plaintiff dismissed Count IV, the only claim in this action over which this Court had subject matter jurisdiction pursuant to 28 U.S.C. § 1331. On that same day, Plaintiff also filed a motion seeking an extension of time for his response to the motion to dismiss. See Doc. # 10. Plaintiff represented that this motion was not opposed, and the Court granted the requested extension of time. The Court also directed the parties to submit briefs addressing whether this Court should continue to exercise supplement jurisdiction over this action. Cowarts and Ariton urged this Court to continue to exercise jurisdiction over this action on a variety of grounds. Plaintiff asked this Court to decline to exercise jurisdiction over this action.
Plaintiff did not seek leave of Court or opposing counsel to file this Amended Complaint. Under the most recent amendment to Federal Rule of Civil Procedure 15(a), the Court is satisfied that Plaintiff is within the period of time for amending the Complaint as a matter of course without leave of Court. See Fed.R.Civ.P. 15(a)(1)(B).
A. Pendency of Federal Claims After Amendment of the Complaint
Ariton and Cowarts contend that Count VI of the original complaint, which was not altered by the amendment of the Complaint, contains federal claims over which this Court still has original jurisdiction. All claims set forth in Count VI are brought against unnamed, unidentified "fictitious." This pleading practice is permissible under the Alabama Rules of Civil Procedure. The Court finds that there is no fictitious party practice in federal courts. See, e.g., Fed.R.Civ.P. 10(a); New v. Sports Recreation, Inc., 114 F.3d 1092, 1094 n. 1 (11th Cir. 1997); Harris v. Palm Harbor Homes, Inc., 198 F. Supp. 2d 1303, 1304 n. 6 (M.D. Ala. 2002); Edwards v. Alabama Dep't of Corr., 81 F. Supp. 2d 1242, 1257 (M.D. Ala. 2000). Accordingly, it is hereby ORDERED that all federal claims in Count VI are DISMISSED WITHOUT PREJUDICE. Having so ordered, the Court further finds that it has now dismissed all claims over which it has original subject matter jurisdiction.
B. Supplement Jurisdiction
As previously explained, in addition to his claims pursuant to federal law, Plaintiff brings a number of claims pursuant to Alabama law. This Court has supplemental subject matter jurisdiction over these claims pursuant to 28 U.S.C. § 1367. The statutory provision addressing supplemental jurisdiction provides that
(a) Except as provided in subsections (b) and (c) or as expressly provided otherwise by Federal statute, 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 Constitution.28 U.S.C. § 1367(a). Thus, Section 1367(a) provides a basis for this Court to exercise jurisdiction over Plaintiff's claims pursuant to Alabama law because it has jurisdiction over his claims pursuant to federal law. However, the requirement contained in § 1367(a) that this Court exercise its supplemental jurisdiction over Plaintiff's state law claims is subject to certain enumerated instances in which it is appropriate for a federal court to decline to exercise its supplemental jurisdiction over a case. Those circumstances are set forth in Section 1367(c), which provides that
The district courts may decline to exercise supplemental jurisdiction over a claim under subsection (a) if —
(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). The Court finds that claims before this Court pursuant to § 1367(a) complex issues of Alabama law. Additionally, all federal claims over which this Court had original jurisdiction have now been dismissed. Pursuant to 28 U.S.C. § 1367(c)(1) (3), the Court will exercise its discretion to decline to exercise supplemental jurisdiction over Plaintiff's claims pursuant to Alabama law. All of Plaintiff's claims pursuant to Alabama law will accordingly be DISMISSED WITHOUT PREJUDICE. This dismissal should not work to Plaintiff's disadvantage should he elect to bring suit in state court because the period of limitations for any of these claims is tolled during the pendency of this action. See 28 U.S.C. § 1367(d). For the foregoing reasons, it is hereby ORDERED that all remaining claims in this lawsuit are DISMISSED WITHOUT PREJUDICE and the Clerk of the Court is DIRECTED to terminate this case from this Court's docket. It is further ORDERED that the Motion to Dismiss (Doc. # 4), the Motion for Leave to Amend Complaint (Doc. # 15) filed on March 8, 2010, and the Motion to Dismiss (Doc. # 17) filed on March 11, 2010 are DENIED as MOOT. A copy of this checklist is available at the website for the USCA, 11th Circuit at www.ca11.uscourts.gov Effective on April 9, 2006, the new fee to file an appeal will increase from $255.00 to $455.00. CIVIL APPEALS JURISDICTION CHECKLIST
1. Appealable Orders : Appeals from final orders pursuant to 28 U.S.C. § 1291: 28 U.S.C. § 158Pitney Bowes, Inc. v. Mestre 701 F.2d 1365 1368 28 U.S.C. § 636 In cases involving multiple parties or multiple claims, 54Williams v. Bishop 732 F.2d 885 885-86 Budinich v. Becton Dickinson Co. 108 S.Ct. 1717 1721-22 100 L.Ed.2d 178LaChance v. Duffy's Draft House, Inc. 146 F.3d 832 837 Appeals pursuant to 28 U.S.C. § 1292(a): Appeals pursuant to 28 U.S.C. § 1292(b) and Fed.R.App.P. 5: 28 U.S.C. § 1292 Appeals pursuant to judicially created exceptions to the finality rule: Cohen v. Beneficial Indus. Loan Corp. 337 U.S. 541 546 93 L.Ed. 1528Atlantic Fed. Sav. Loan Ass'n v. Blythe Eastman Paine Webber, Inc. Gillespie v. United States Steel Corp. 379 U.S. 148 157 85 S.Ct. 308 312 13 L.Ed.2d 199 2. Time for Filing Rinaldo v. Corbett 256 F.3d 1276 1278 4 Fed.R.App.P. 4(a)(1): 3 THE NOTICE MUST BE RECEIVED AND FILED IN THE DISTRICT COURT NO LATER THAN THE LAST DAY OF THE APPEAL PERIOD — no additional days are provided for mailing. Fed.R.App.P. 4(a)(3): Fed.R.App.P. 4(a)(4): Fed.R.App.P. 4(a)(5) and 4(a)(6): Fed.R.App.P. 4(c): 28 U.S.C. § 1746 3. Format of the notice of appeal : See also 3pro se 4. Effect of a notice of appeal : 4
Courts of Appeals have jurisdiction conferred and strictly limited by statute: (a) Only final orders and judgments of district courts, or final orders of bankruptcy courts which have been appealed to and fully resolved by a district court under , generally are appealable. A final decision is one that "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." , , (11th Cir. 1983). A magistrate judge's report and recommendation is not final and appealable until judgment thereon is entered by a district court judge. (c). (b) a judgment as to fewer than all parties or all claims is not a final, appealable decision unless the district court has certified the judgment for immediate review under Fed.R.Civ.P. (b). , , (11th Cir. 1984). A judg ment which resolves all issues except matters, such as attorneys' fees and costs, that are collateral to the merits, is immediately appealable. , 486 U.S. 196, 201, , , (1988); , , (11th Cir. 1998). (c) Appeals are permitted from orders "granting, continuing, modifying, refusing or dissolving injunctions or refusing to dissolve or modify injunctions . . ." and from "[i]nterlocutory decrees . . . determining the rights and liabilities of parties to admiralty cases in which appeals from final decrees are allowed." Interlocutory appeals from orders denying temporary restraining orders are not permitted. (d) The certification specified in (b) must be obtained before a petition for permission to appeal is filed in the Court of Appeals. The district court's denial of a motion for certification is not itself appealable. (e) Limited exceptions are discussed in cases including, but not limited to: , , , 69S.Ct. 1221, 1225-26, (1949); , 890 F.2d 371, 376 (11th Cir. 1989); , , , , , (1964). Rev.: 4/04 : The timely filing of a notice of appeal is mandatory and jurisdictional. , , (11th Cir. 2001). In civil cases, Fed.R.App.P. (a) and (c) set the following time limits: (a) A notice of appeal in compliance with the requirements set forth in Fed.R.App.P. must be filed in the district court within 30 days after the entry of the order or judgment appealed from. However, if the United States or an officer or agency thereof is a party, the notice of appeal must be filed in the district court within 60 days after such entry. Special filing provisions for inmates are discussed below. (b) "If one party timely files a notice of appeal, any other party may file a notice of appeal within 14 days after the date when the first notice was filed, or within the time otherwise prescribed by this Rule 4(a), whichever period ends later." (c) If any party makes a timely motion in the district court under the Federal Rules of Civil Procedure of a type specified in this rule, the time for appeal for all parties runs from the date of entry of the order disposing of the last such timely filed motion. (d) Under certain limited circumstances, the district court may extend the time to file a notice of appeal. Under Rule 4(a)(5), the time may be extended if a motion for an extension is filed within 30 days after expiration of the time otherwise provided to file a notice of appeal, upon a showing of excusable neglect or good cause. Under Rule 4(a)(6), the time may be extended if the district court finds upon motion that a party did not timely receive notice of the entry of the judgment or order, and that no party would be prejudiced by an extension. (e) If an inmate confined to an institution files a notice of appeal in either a civil case or a criminal case, the notice of appeal is timely if it is deposited in the institution's internal mail system on or before the last day for filing. Timely filing may be shown by a declaration in compliance with or a notarized statement, either of which must set forth the date of deposit and state that first-class postage has been prepaid. Form 1, Appendix of Forms to the Federal Rules of Appellate Procedure, is a suitable format. Fed.R.App.P. (c). A notice of appeal must be signed by the appellant. A district court loses jurisdiction (authority) to act after the filing of a timely notice of appeal, except for actions in aid of appellate jurisdiction or to rule on a timely motion of the type specified in Fed.R.App.P. (a)(4).